Do You Have a Personal Injury Claim?
Questions often arise after a motor vehicle accident, such as, "Who is responsible for my damages", "What are my rights?", and "Do I have a case?". Always consult with an experienced and licensed attorney for proper legal handling of your personal injury claim. An injured person should consult with attorney immediately if any claim for damages is contemplated.
Although it is never advisable to handle a personal injury lawsuit by yourself, we provide for you a way to determine if you have legal grounds to make a claim for personal injuries arising from a motor vehicle accident in California. The comments are for educational purposes only. The following four-step analysis should serve as a starting point on determining if you have a case, but should not be relied upon as legal advise.
- Liability: First and foremost, California operates under a "fault" legal system. To prevail on a personal injury claim, you must determine who is at fault (liable) and to what extent. If you are injured in California from a motor vehicle accident, your right to sue for civil or monetary damages due to somebody's fault is found in Civil Code § 1714, California's basic negligence law. This law requires everybody to use due care. A breach of that duty which causes injury or damage to another subjects the negligent party to civil liability. Negligence is a "tort", or civil wrong committed by one against another person injured by the negligence of another.
In California, we use a comparative fault system, meaning liability based on one's level of fault. For example, if a jury awarded you $100,000 for all your damages, but found you to be 50% at fault, your award would be reduced by 50%, or to $50,000.00. Or, if a jury awarded you $10,000 and found you to be 50% at fault, the defendant 20% fault, and a third party to be 30% at fault, you would be entitled to 20%, or $2,000.00, from the defendant. Thus, even if you are partly at fault for the accident, you may be able to recover compensatory damages so long as you or a third party are not 100% at fault.
- Insurance: Make sure there is insurance coverage from either the party or parties at fault or from your own policy. Unless you know the defendant has assets, you must find insurance coverage that will indemnity you for your proven damages. You may be chasing a "judgement proof defendant", so if your own insurance will not cover it, you may not recover at all. If the defendant does not have insurance, look at your own declaration page to see if you have the necessary coverages for liability, comprehensive and collision, uninsured motorist, and medical payment coverages. Once insurance coverage is determined, and if your accident occurred in California, insurance adjusters often require you to show them proof of your liability insurance. In California, if you cannot prove you had auto liability insurance coverage at the time of your accident, you are denied the right to sue for general damages (pain and suffering). Thus, keep your liability policy and declaration page handy.
- Causation: A good lawyer will be able to marshall all your evidence to help you prove your injuries and damages in order to maximize your recovery. For some FREE TIPS on how to prove your personal claim and how to deal with insurance adjusters, click here.
- Damages: Once fault and insurance coverage is confirmed and causation is determined, you will need to ascertain and prove your damages that were caused by the defendant's negligence. An injured party may seek monetary (compensatory) damages caused from the negligent party or parties. Compensatory damages fall into two categories:
special (economic) damages; such as property damage, medical expenses, lost wages;
general (non-economic) damages; from pain and suffering and emotional distress and inconvenience.
The following are some helpful tips on dealing with adjusters and developing your evidence. The comments are designed to help you with claims settlement procedures and to educate you about your legal rights and are provided for informational purposes only. Although we never recommend trying to handle a person injury on your own, as a courtesy, we provide some valuable legal tips on what to do those first few days after your accident, how to deal with insurance adjusters, and how to start proving a personal injury case. Again, these suggestions are made in the context of a motor vehicle accident in California.
The Insurance Claims Adjuster:
Initially, you should know that your claim will likely involve an insurance company which will devote an unlimited amount of resources to defeat your claim. As you know, they often send out representatives ("adjusters") immediately to do cursory investigations in an unfair attempt to settle your claim as quickly as possible. Be advised that adjusters work for the insurance company and are, thus, adversaries, not allies. During an adjuster's hurried and biased investigation, they often insist that an attorney is not necessary and often tell you getting a lawyer involved means less compensation for you. Many slyly befriend you and lull you into a false sense of security. Then they often shrewdly get unsophisticated and unrepresented people to make damaging admissions or misstatements that are designed to de-value their cases. And, adjusters often "low-ball" your claim, using legal technicalities as excuses not to pay you a fair settlement. A good lawyer who is brought in early in the investigation can usually help you successfully obtain maximum recovery, instead of the quickie but inadequate settlements frequently pushed by the insurance adjusters.
For these reasons, you should never deal directly with adjusters without a lawyer. Never sign anything or give a written or verbal statement until you consult a legal representative well-versed in personal injury matters.
Statements To Insurance Adjuster:
You are not required to make any statement to an insurance adjuster. Adjusters are trained and experienced to investigate incidents with a slant toward their own insured or their perceived version of the facts. They do not have your best interests at heart, since they are employees of the insurance company. They are out to minimize your recovery, not to be fair. Under the guise of "investigation", they often want your tape recorded statement to try to trick you into making damaging and incriminating statements. You are not legally required to give a statement. It is better to let an attorney speak for you and not to make any kind of statement - recorded or written. You may make inadvertent remarks or admissions that can be later twisted or distorted by an over-zealous claims adjuster or defense attorney to hurt your case. If you do give a statement, be prepared first by studying the police report, the photos, and the statements from others. Always insist it be a written (not recorded) one, and demand a copy. Try to avoid being too specific or precise on measurements of times, speeds and distances, as defense lawyers often use your statements and give them to their bio-mechanical experts and accident reconstructionist to defeat your claims.
Often, insurance adjuster send you blank medical authorizations so they can copy all your medical records. Frequently, they use these forms to get medical records from prior and unrelated accidents and incidents, which are then used to diminish the value or credibility of your present injuries. For that reason, never sign blank medical authorizations from insurance adjusters, particularly ones that authorize disclosure of record of psychiatrists, psychologists or marriage counselors. You have a limited right to medical privacy under California law. Medical records relating to remote and unrelated injuries or from mental conditions are privileged and confidential and need not be released. If records are needed, it is much wiser to have your attorney provide the needed medical records and reports.
As you know, to have a viable personal injury case you must not only prove fault (or liability), you must also prove by a preponderance of the evidence your reasonable and necessary damages. Proper investigation and preparation is very time-consuming and tedious. Yet, obtaining fair and prompt compensation for your damages depends of how promptly and well you or your lawyer manages your claim and presents it to an insurance carrier. Obviously, the sooner and the better you document your injuries and damages, the better you can prove your side of the incident and, thus, the more reasonable your compensation will be.
Police Investigation & Report:
Because fault is so important, it is crucial that an independent investigation take place immediately at the site by a trained police officer. While the report may not be admissible, the statements, measurements and observations contained therein are critical to winning your case. If injuries are involved, always request a prompt police investigation and report. Many police officers view an accident as involving "minor injuries" and, thus, are hesitant to take the time to write a report. In California, if your accident involves property damage over $500 or bodily injuries of any sort, a report must be made. Insist on one.
Notes and Logs:
While statements made by parties and witnesses in police reports and observations by the parties and witnesses are admissible, the police report itself is not admissible because it is hearsay. For that reason, as soon as you can, write even thing down in a log book or note pad. You should never try to rely of your personal memory. It is always better to immediately jot things down with dates as they occur. This will help you remember months later exacting what was going on, and your original notes may be used to refresh your memory. You will need names, dates, places, observations, and statements made at the accident scene. Take special note or keep a log about the nature and extent of your bodily injuries and symptoms; when they occurred, how long they occurred, and what intensity and frequency the pain happened. By taking these detailed notes on events as they occur it makes it easier to prove the nature and extent of your bodily injuries and damages to an insurance adjuster or jury.
Physical evidence is especially helpful in proving the intensity of the impact and the resulting extent of your personal injuries. Collect as much physical evidence of the accident, the site, and the damages and injuries as you can. Physical evidence includes visible cuts, bruises, marks, swelling, damaged or bloodied clothes, damaged vehicle parts, repair estimates, photographs of dents or damage to your vehicle, and photographs of your bodily injuries. Other physical evidence of injury which may also be helpful are bloodied or soiled bandages, braces, splints, casts, neck collars, back braces, Empty prescription medication vials, written statements signed at the site or later, and audio or video taped statements of a witness or party. And, objective medical evidence of bodily injury is especially persuasive, such as x-rays, MRI films, CT scans.
Photographs and Videotape:
Take as many photographs as soon as possible from varying angles and distances, particularly of the scene and all the damaged vehicles and injured persons. Your visible injuries will soon not look so serious later, so it is best to take photographs of injuries immediately and preserve them for later. Videotaping injuries and damages is a particularly good way of preserving accurately the dates events and injuries occurred. When taking still pictures, have another person be present when you take the photos or film and have your friend jot down the date, places, and objects photographed. If necessary, return to the site and take photos of the same place, the same time of day, and the same day of the week, to show a typical amount of traffic flow. Develop your photographs immediately, making sure the envelope has the dates on the back of the prints or on the receipt.
The names of all witnesses who corroborate your version of the accident and/or who seen your bodily injuries will make it much easier to prove your case. Be sure to get their names, addresses, and telephone numbers. Remember, witnesses move, their memories may fade, and they are easily persuaded to change their minds after talking to a police officer and/or trained adjuster. Sometimes witnesses change their initial recollections of the accident after hearing others. It is important to immediately confirm and pin them down as to what they saw, heard, and said at the time of the accident. It may be necessary to contact these witnesses later, and they can be immensely helpful in proving your case. Their invaluable statements can either be written down with their signature and dated, or even audio or video taped with their permission.
Property Damage Estimates:
You may recover a reasonable amount for your property damage. Often, insurance adjusters assign "in-house" or vendorized car appraisers to inspect and issue an appraisal report of your wrecked vehicle. These estimates are often conservative or deficient. For that reason, obtaining several repair estimates of your vehicle from various sources helps you to negotiate a higher amount on your property damage. If your vehicle is totaled, you are entitled to receive its fair market value in exchange for title. This amount can be proven by obtaining clippings from newspapers, auto-trader magazines, Kelley's Blue Book quotes, CCC searches, and other sources like the Internet.
Medical treatment and costs:
Document your injuries with ample medical records and reports. Immediately report all symptoms and complaints to the responding police officers and paramedics &150; however slight. If medically reasonable and necessary, get immediate medical care from an independent professional. The longer you delay, the more chance the adjuster will deem your injury dubious and argue you were never legitimately injured. If you are not fortunate to have medical health coverage, go only to reputable physicians with credibility. Tell all the treating doctors everything that hurts, no matter how slight. Never fail to advise the doctors about prior injuries, particularly to the same injured body parts. Insurance adjusters and defense attorneys are experts at detecting unreported injuries and false or inadequate medical histories. Make sure to comply with all your Physician's instructions. Collect all medical records, reports, and billings from each healthcare provider seen. Obtain legible copies of all radiological and diagnostic films and studies.
If you lost wages due to the accident, it is especially important to document your lost time through notes, medical off-work slips, employer slips and letters, check stubs, tax records, etc. Paycheck stubs, bank deposits, 1040 tax returns, and social security records are particularly good proof of lost income.
Once you sign a settlement document, your case is closed forever! It is never wise to settle any claim without obtaining all the complete and necessary legal and medical information, and without consulting with a lawyer about that evidence and adequacy of settlement.
Summary of personal injury damages:
If you are successful in proving your personal injury matter under California law, you may have the right to the following damages:
Compensatory Damages: If you can prove your damages at trail, under BAJI 14.00 et. seq., you are entitled to monetary or "compensatory" damages designed to make you whole, including the right to the following:
1. Economic damages:
Cost of repair or replacement of property damage;
Car rentals expenses;
Loss of use of your property (vehicle);
Loss of earnings;
Loss of employment;
Loss of business or employment opportunities;
Burial costs; and
Costs of obtaining substitute domestic services.
2. Non-economic damages*:
- compensation for pain and suffering, inconvenience, mental suffering, emotional distress, fright, nervousness, worry, anxiety, mortification, shock, humiliation, embarrassment, terror, and ordeal (See, Capelouto vs. Kaiser Foundation Hospitals, 7 Cal.3d 889.);
- loss of society and companionship (loss of consortium);
- injury to reputation;
- in wrongful death cases, losses which each heir has suffered, including financial support, loss of love, companionship, comfort, affection, society, solace, or moral support, and loss of physical assistance to a spouse in the operation or maintenance of the home.
* In motor vehicle accident cases, allowed only to those with a valid auto liability insurance policy on date of injury.
3. Punitive Damages:
If you can prove by clear and convincing evidence the wrong-doer engaged in "oppression, fraud, malice" or "despicable conduct", under BAJI 14.71 et. seq., you may be awarded reasonable "punitive damages". Punitive damages are not meant to compensate you, but rather to punish the wrong-doer or to set an example in the community that certain egregious acts will not be tolerated. In order to deter similar conduct in the future, the punitive damages must be of sufficient amount. The more despicable the act and the more wealthy the wrong-doer, the higher are the exemplary damages.