FAQs

Frequently Asked Questions

I’ve been injured, now what?

If someone other than you is responsible for your injury, you may choose to make a claim against a person or business and their insurance company. Generally, the type of accident that you are involved in and the cause of the accident may affect whether you are entitled to compensation.  Here are a few examples:

• Motor vehicle accidents: Fault or “negligence” is determined by your local traffic regulations and more importantly, which driver’s carelessness contributed most to the accident and the injuries.  This includes your own actions, such as failure to use seatbelts, signal, etc.
• Commercial accidents (such as in stores or businesses): Injuries you may sustain are only valid if caused by an unsafe condition that the owner or business knew of, or should have known of, and should have corrected before the accident.
• Home/farm/apartment/recreation injuries: Renters, owners, or residents may be found liable for injuries they cause by negligent maintenance of a property.  This includes things that were “an oversight”, or attacks by pets; however, property owners who permit others to use their land without charge for recreational purposes may be completely immune to any claim for unsafe conditions. Government employees and premises: Injuries caused by negligent public employees or unsafe conditions will be compensated only in limited circumstances and are subject to specific notice and claim requirements. State, federal, and local governments are given broad latitude to determine most matters involving public safety, including the design and maintenance of roads, parks, and facilities.
• Workplace injuries: Injuries at work generally are covered by worker’s compensation benefits which compensate for medical expenses, lost wages, and permanent impairments, without regard to fault by anyone. If the accident was caused by a third party, someone other than the employer or a co-worker, a fault-based claim can be made that could include damages for pain and suffering in addition to the worker’s compensation benefits.
• Intentional injuries: Injuries inflicted on purpose by any person are not usually covered by the guilty party’s liability insurance, although the responsible party may be personally liable for such harm.
• Other accidents: More complicated rules determine if injuries caused by dangerous products, the accumulation of ice or snow, faulty professional services, or public utilities will be compensated. In addition, users of firearms, dog owners, and operators of restaurants, hotels, and public transportation may be liable for injuries they cause because the law imposes special responsibility for these hazards which your attorney can explain in more detail.

Which insurance policies will cover my costs?

Most automobile, homeowners and commercial liability policies contain “medical payments” coverage for medical expenses incurred after an accident without regard to fault. This coverage has set limited amounts of coverage and applies to the insured family members, invitees, and vehicle passengers, while homeowners, renters, and commercial policies cover only “others”; or visitors to the property.
Health, worker’s compensation, disability insurance carriers or HMOs (Health Maintenance Organizations) usually will cover the health costs arising from accidental injuries.  However, if your claim (or lawsuit) against another person succeeds, you will typically have to pay back the provider for the benefits paid (“subrogation”)
If the accidental injury is primarily your own fault, then only health insurance (such as through your employer), worker’s compensation, or medical payments coverage may apply.
Injuries caused by uninsured drivers are compensated by your own “uninsured motorist” coverage (if you have it) applying the same general rules as insured drivers.

Should I hire a lawyer?

If you know for certain that your injury is a minor one that will not result in time lost from work or school or substantial medical care, then you may want to settle it yourself, or take your action to small claims court.  Of course, insurance claims adjusters generally try to settle claims inexpensively and on terms favorable to the insurance companies.  If you have been seriously injured or are unsure as to the outcome of your injury, then an experienced personal injury attorney should always be consulted before you give any statements or sign papers of any kind as soon after the injury as possible. You should be able to discuss your claim and the potential fee arrangements with your attorney before you commit to legal costs.

Personal injury attorneys usually handle claims on a “contingent” or percentage basis depending on the type, difficulty, and expense of the case.  This means that in most situations you will not have to pay any “up front” costs to the attorney for taking your case.  Contingent fees are not set by law and can be as much as 40 to 50 percent for difficult or complex cases (different states have different amounts).  Contingent fee agreements must be in writing and include provisions for any “out-of-pocket expenses”, which typically are paid by the attorney but paid back from the settlement funds that are recovered, in addition to the fee for the attorney’s services.

How long do I have to decide?

Laws in different states require you to settle your claim, start a lawsuit, or give special notice within limited time after the injury or damage, or your claim may be forever barred and you may forever give up your right to recovery of any kind (Statute of Limitations).  The time you have to take action also depends on who the injured party is, and the person or entity that caused your accidental injury.

Statute of Limitation in California:

• Personal Injury Actions:  2 years.
• Injury to Personal Property:  3 years.
• Product Liability: 2 years.
• Claims Involving Minors:  Minor’s have two (2) years from reaching the age of majority (from their 18th birthday) to file their claim.
• Claims Against local, city, county, state entities and agencies:  Regardless of the above time limits, and if applicable, a claim against a public entity (city, county or state) must be filed within six (6) months following the date of the accident.  The public entity then has 45 days in which to accept or reject the claim.  If it is rejected (and your claim is deemed rejected if not acted upon within 45 days) you must file a lawsuit against the public entity within 6 (six) months thereafter; however, your claim must nevertheless be filed within one (1) year of the date of your accident, or your claim will be forever barred.  Due to the complicated intricacies involved and to be safe a suit against a public entity should be filed within six (6) months from the date of your accident.

If you have any doubt about the statute of limitations or notice required you should consult an attorney immediately.  Other states may have shorter or more stringent limitations.

What is my claim worth?

Your injury claim is valued and usually settled based upon what a jury  regards as fair and reasonable compensation given the severity of the injury and the effects of the accident on your life.  A jury also considers and awards settlement on the probability that a recovery against the person or business that injured you is warranted.  In addition to medical expense and wage loss, you are entitled to money damages for “personal injuries,” including pain and suffering, loss of enjoyment of life.  Your attorney may point out additional damages authorized in special cases such as dog bites or flagrant misconduct.

Severe injuries requiring substantial medical treatment, extended absences from work, and permanent physical or mental impairments may have much larger awards.  Juries tend to believe that injuries that cannot be seen or demonstrated, are suspect and may be prone to exaggeration by the party seeking money damages.

When you settle a claim, both sides should have a clear “before and after” picture of the injuries and how they have affected the victim’s life. The “difference” is the value of the claim.  For example, a healthy, productive, young worker injured severely by an obvious act of the defendant will demand substantial compensation, especially where the victim has undergone extensive medical care, long term earnings loss, and is facing a future of lower earning capacity, disfigurement, pain, and suffering.  On the other hand, the claim of an older person, perhaps injured in questionable circumstances, which are substantiated primarily by the statements of the claimant may be substantially discounted both by a jury and a claims adjuster.

If you are found to be partially at fault for the accident causing the injury, then the amount of settlement award will be reduced proportionately.   If there is a substantial chance that the claim will not succeed for any reason, then any pretrial settlement will be reduced in most cases.

How and when will my claim be settled?

If the person or business is responsible for your injury, and has insurance, an insurance adjuster will gather and try to verify the necessary medical treatment records, medical expense, wage loss information and what permanent injury or disability have been caused by the accident.  If the insurance company makes you an offer (and your attorney) that you find acceptable, then the claim process is over.  If no acceptable offer is made, then you may file a lawsuit.

As the trial date approaches, depositions and discovery may be required.  Generally both the claimant and the insurance company usually take a closer look at the elements of the claim and available evidence to support it.  You and your attorney may try to settle the matter by informal discussion, mediation or pretrial conferences with the judge.

About 95 percent of injury claims settle before trial.  One cannot know in advance which claims will go to trial and which will not.   Once a claim is put in suit, it typically takes six to 18 months or longer to resolve.