Taking the Mystery Out of Personal Injury Claims: Five Commonly Asked Questions
This information comes from our friends at Nolo Press. For more information or to order this book, visit Nolo's site at http://www.nolo.com.
by Joseph L. Matthews
Copyright © 1994 Nolo Press
- How Do I Legally Prove What Happened?
- Can I Get Compensation If the Accident Might Have Been Partly My Fault?
- What If My Physical Limitations Make the Accident More Likely or Made My Injuries Worse?
- Do Insurance Companies Use a Secret Formula to Decide How Much They'll Pay?
- Does My Health Insurance Coverage or Paid Sick Leave From Work Limit My Compensation?
Your right to be compensated usually depends on nothing more than common sense: Who was careful and who was careless? The person in the best position to handle your claim is the person who knows best how your accident happened and how badly you are hurt--and that person is you.
In most cases, you can actually get more compensation by handling your own claim. That's because you won't be paying a lawyer a 33-40% fee.
All you need is some information about how the insurance claims process
works.
Here are answers to five common questions about handling your own
personal injury claim.
1. How Do I Legally Prove What Happened?
Negotiations with an insurance company take place in letters and on the phone with an insurance adjuster, not in a courtroom with lawyers. So you don't need
legally perfect "proof" of anything. You just need to make a reasonable
argument--in plain language--that the other person (or company) was
careless, even if there are also plausible arguments on the other side.
For example, in a car accident case, you do not need to present measurements of tire marks or precise angles of collision. Just point out that the other driver hit you from the rear or turned in front of you. Common knowledge of driving rules tells both you and the insurance company who was at fault.
If you make a good argument why the other person was at fault, the
adjuster will realize that if the matter ever wound up in court, there is a good
possibility that its insured person would be found legally responsible. Companies
usually prefer to pay a reasonable claim settlement sooner, rather than risk
having to later pay not only for your injuries, but also court costs and lawyer
fees.
2. Can I Get Compensation If the Accident Might Have
Been Partly My Fault?
Even if you might have partly caused an accident yourself, you can
still receive
compensation from anyone else who was careless and partly caused the
accident.
The amount of another person's responsibility is determined by
comparing his or her carelessness with your own. For example, if you were 25% at fault
and the other person was 75% at fault, the other person must pay--through the
insurance company--75% of the fair compensation for your injuries. This rule is
called "comparative negligence."
A few states supposedly bar you from any compensation if your own carelessness substantially contributed to the accident ("contributory negligence"). But in practice, the question of whether your carelessness actually contributed to the accident is a point to negotiate with the adjuster.
There is no formula for assigning a percentage to your and the other
person's carelessness. During claim negotiations, you will come up with one
number; the adjuster will come up with another, and explain why you bear greater
responsibility for the accident. The different percentages you each arrive at
then simply go into the negotiating hopper with all the other factors
that determine how much a claim is worth.
3. What If My Physical Limitations Make the Accident More Likely or Made My Injuries Worse?
What if you have a bad knee, which makes one leg a bit unsteady? Or if your
eyesight, even with glasses, is not very strong? If you fall on a
broken stair, are you still entitled to compensation even though someone with stronger legs or better eyesight might not have fallen?
Absolutely. All people, regardless of physical ability, have a legal right to
make their way through the world without unnecessary danger. Owners and
occupants of property must permit no unnecessary danger to any person who might
reasonably be expected to be on the property. The same goes for drivers and
everyone else--they must not create unnecessary danger to anyone whose path they
might cross.
4. Do Insurance Companies Use a Secret Formula to
Decide How Much They'll Pay?
Insurance companies and lawyers do use a formula to calculate a range
of compensation for an injury. The final payment figure, though, is the
result of negotiations with the injured person.
The formula is no secret. In general, an injured person will be reimbursed for:
- medical care
- lost income
- temporary and permanent pain and other physical discomfort, and
- loss of family, social and educational experiences.
Several factors raise the damages formula from the 1.5-times end toward the 5-times end:
- more painful, serious or long-lasting injuries
- more invasive or long-lasting medical treatment
- clearer medical evidence of extent of injuries
- more obvious evidence of the other person's fault, and less of your fault.
5. Does My Health Insurance Coverage or Paid Sick Leave From Work Limit My Compensation?
Whether you paid for medical care out of your own pocket or your health insurance covered is none of a claims adjuster's business. The same goes for whether your lost time at work was covered by sick leave or vacation pay. In fact, it is improper for an adjuster even to ask about such payments. You paid for your health insurance and earned your sick leave or vacation pay; now the insurance for the person who caused the accident has to pay.Your own health insurance, however, may require that, out of your settlement, you reimburse them some or all of the amounts they have paid for treatment of your injuries.
