Personal Injury FAQ's


Q. What is a Personal Injury?

A. A Personal Injury (PI) is any physical or mental injury to a person as a result of someone's negligence or harmful act. Many insurance companies refer to Personal Injury as Bodily Injury (BI).

 

Q. Are vehicle accidents the only type of Personal Injury?

A. No. Auto accidents are the most common type of Personal Injury that people know of, but any inury caused by someone else's negligence or harmfull act can result in a legal claim. This may include cases caused by falls, injuried from dangerous premises, negligent medical treatment, animal bit injuries, and defective products.

 

Q. What should I do if I have been hurt in an accident?

A. 1) Your health is the most important thing to address seek medical help and follow your doctor's orders.

2) If you are contacted by an insurance company or attorney for the other party (the other driver) politely decline to discuss the matter with them. You can give them a full statement at a later time and often, what you say "off the cuff" can come back and haunt you later.
3) Call an attorney to discuss your claim. Most attorneys do not charge for an initial consultation in accident cases.

Q. An Insurance Adjuster called me, what should I do?

A. Typically, an adjuster will tell you the reason for the call is to open a file and to conduct a preliminary investigation. The adjuster will sound like your friend and many times will immediately offer to pay your medical bills. If this happens, the adjuster's real purpose is to convince you to settle your claim for a modest amount of money before you know how seriously you were injured. The insurance company may ask you to sign a Release. Unless you are ready to close your claim, DO NOT SIGN THE RELEASE. Signing any release may prevent you from pursuing claims to which you might otherwise be entitled.

 

Q. I'm not sure whether I have a case or not! What should I do?

A. Why take the chance? Call an attorney and describe the incident. You have nothing to lose. Most attorneys do not charge for an initial consultation in Personal Injury cases.

 

Q. What are "damages"?

A. Damages are any losses or expenses you incurred as a result of the accident., including but not limited to medical bills, lost wages, and property damages.

 

Q. What monetary recovery is permitted in a Personal Injury claim?

A. Common damage amounts (each with its own set of requirements) are:


Medical bills (doctor bills, hospital bills, surgery expenses, diagnostic charges, physical therapy, personal care nursing fees, prescription medicines, and others),
Lost Wages, including overtime,
Pain & Suffering,
Physical Disability,
Disfigurement,
Permanent Scars
Emotional Trauma,
Loss of Love & Affection,
Mental Disability,
Property Damage,
All out of pocket expenses directly tied to your injury.

Q. How do I know if I have a Personal Injury claim?

A. Whether a Personal Injury claim (a "tort") exists is a matter of law. There are four elements to a "tort" claim:

1) On party has a duty or obligation to do something,
2) That party fails to meet that duty,
3) You suffer Damages, and
4) Your Damages are the result of the first party's failure to meet their duty.

Q. Do all Personal Injury claims go to trial?

A. No. In fact, most Personal Injury claims are settled with the insurance carrier for the liable party before trial.

Q. How can I handle my medical bills until my case is settled?

A. Depending on state law and the type of insurance coverage in your policy, your medical bills can be paid under your Personal Injury Protection (PIP) coverage, your Medical Payments coverage (MPC), your health insurance coverage, or your Worker's Compensation plan, if applicable. For people with no insurance and who are unable to pay for medical services, many doctors, hospitals, and other medical facilities will agree to be paid out of settlement. They ask that you sign a lien against your settlement funds which directs that they get paid before any money is given to you.

 

Q. What should I do if I did not feel hurt at the scene of the accident?

A. Remember: Our bodies are amazing and sometimes we don;t understand the nature of our injuries until after the rush of adrenaline wears off. This is normal. If at anytime you feel the need for medical help, seek it immediately. Failure to claim a severe injury at the scene of the accident does not automatically prevent you from pursuing a Personal Injury claim.

 

Q. What if I'm "sore" but not hurt?

A. If within a reasonable period of time you are "sore", you are probably hurt. Consult your doctor. If you simply live with it and do not see your doctor, you give the insurance company the ability to deny that you were even injured in the accident.

 

Q. Do I have to go to an MD?

A. You do not have to go to your primary care physician for treatment. Although Medical Doctors may often be the best choice, you can go to a chiropractor, or other health care professional. The purpose is to get treatment from a qualified, licensed professional that will document your injuries.

 

Q. I'm a working person, how can I afford an attorney?

A. In most Personal Injury cases, an attorney will accept a case on a contingent fee basis.

 

Q. What is a Contingent Fee?

A. A Contingent Fee is paid as a percentage of your monetary recovery (either settlement or court award). If a case does not result in an award of money, then you will pay nothing. If the matter is settled or you win a verdict from the court at trial, then the attorney will take a fixed percentage of the award. The client is generally responsible for the expended costs of litigation like filing fees, copy charges, etc.

 

Q. What percent is the Contingent Fee?

A. In Personal Injury cases the general fee is 33% if your case is settled and 40% if a lawsuit is filed. In complex cases (such as Medical Malpractice), the typical fee may be 40% if your case is settled and 50% if a lawsuit is filed. The percentage is most often based upon the likely costs of bringing the case. The amount of the fees is something that should be discussed and agreed to in writing with the attorney before any work has been done. At the closing of your case, the attorney will give you a written Settlement Statement which sets forth the funds collected, the deductions from that amount and the net amount paid to the client.

 

Q. How long will it take to settle my claim?

A. There is no set answer. All cases are different. The more complex the case is the longer it takes to settle. If you have substantial injuries, the longer it will take. The more money there is at stake for the insurance company, the longer it will take. In most cases, the settlement process starts when your doctor releases you from treatment. Assuming your attorney has all of your accident-related records, he will then make an initial demand to the insurance company. It may take the adjuster two to four weeks to evaluate your claim and make there initial position known. At this point, it's a matter of both sides negotiating a dollar amount that is reasonable for your case and acceptable to you. During the negotiation both sides will begin collecting evidence that they may have to use in a trial.

 

Q. What is the value of my claim?

A. Until all the information on your injuries is available and all the facts of your case are known, the value of your claim is unknown. Attorneys can't promise that they will obtain a certain amount of money for you. If an Attorney promises you that he or she will win a certain amount of money, report the attorney to the Bar Association in your state. It is an ethical violation for an attorney to predict the outcome of a case as an inducement for you to become a client.

 

Q. How do I get my car fixed?

A. Call the Property Damage (PD) adjuster with the "at-fault" driver's insurance company who is handling your claim. Do not discuss anything with the adjuster except your Property Damage. Most insurance companies have separate adjusters for the Property Damage claim and the Personal Injury claim. Nevertheless, Remember: "What You Say Can and Will Be Used Against You!" If the adjuster does not have a copy of the Accident Report, fax or mail a copy to the adjuster. Damage amounts for vehicle property damage are determined by the actual costs of repairs or the "blue book" value of your car in cases of severe damage.

 

Q. Can I make the insurance company buy me a new car?

A. No. Although, that seems only fair. The insurance company will only be liable for the amount of damage as determined by the current "blue block" value of your car. Unfortunately, at best that will only be enough to go out and buy a similar used car.You are entitled to have your car repaired to its pre-accident condition or receive its "fair market value".

 

Q. When is a car considered "Totaled"?

A. A car is considered a "total" loss if it will cost more to fix it than its "fair market value".

 

Q. How is the value of "my" car determined?

A. Most insurance companies use a service that maintains late model vehicle values. Like, Kelley Blue Book, or Edmunds. Establishing a value for your car is simply using one of the available formulas to compute the value of your car based upon the general condition of your car, its mileage, plus the options and equipment package on your car and other allowed factors. Both of those companies have websites that will calculate the value after you put in all the descriptive variables.

 

Q. What if the "at-fault" driver does not have insurance?

A. You file your claim against your insurance company under your Uninsured Motorist (UM) coverage.At that time, think of your insurance company as the other party's insurance company, because it will process your claim as if it was. Hopefully, you have UM coverage. Everyone should have adequate UM coverage. If the uninsured driver hits a car in which you are the passenger, it is your UM coverage that will handle the claim. If your injuries are significant, it may be possible to "stack" insurance.

 

Q. What if the "at-fault driver does not have "enough" insurance?

A. If you have a claim that is larger than the coverage on the "at-fault" driver's insurance policy, you file your claim against your insurance company under your Underinsured Motorist (UM or UIM) coverage. Hopefully, you have UM/UIM coverage. UNfortunately, many vehicles are underinsured. Everyone should have adequate UM/UIM coverage. If the underinsured driver hits a car in which you are the passenger, it is your UM/UIM coverage that will handle the claim. If your injuries are significant, it may be possible to "stack" insurance.

 

Q. What does "stacking" insurance mean?

A. Depending on your insurance company's policy language, you may be able to collect insurance money from every family member's car who lives in the same residence with you.

 

Q. What is a "Release"?

A. You will be required to sign a GENERAL RELEASE which will state that your settlement is a COMPLETE, FINAL AND IRREVOCABLE SETTLEMENT AND DISPOSITION OF ANY AND ALL CLAIMS, RIGHTS OR DEMANDS OR CAUSES OF ACTION, KNOWN OR UNKNOWN, WHICH YOU MAY HAVE AS A RESULT OF YOUR ACCIDENT (NOTE: both SPOUSES ARE GENERALLY REQUIRES TO SIGN WHEN THE INJURED PARTY IS MARRIED). This means that you will no longer have any claim against the the potential defendant, or their insurance company as a result of this settlement.

 

Q. What happens after the settlement check arrives?

A. The Settlement Check will be made payable to you, your spouse (if applicable) and your attorney. Your attorney will prepare a Settlement Statement. The Settlement Statement will set forth the amount of money collected. From the total collected, your attorney will deduct the agreed upon attorney fee, any unpaid medical bills, any insurance reimbursements (subrogation), and the expenses of litigation. Your attorney will issue a check to you from his or her Lawyer's Trust account in the "net" amount of your settlement.

 

Q. How much insurance do I need?

A. It is a good idea to have a minimum of 100/300/50, which means a maximum of $100,000 for any one person who is injured, a maximum or $300,000 for all the people who are injured, and $50,000 for damage to property. If you can afford 250/500/100, it is probably a good buy. For example, if you are the negligent driver in an accident, and you cause someone to be paralyzed for life or even kill someone, $15,000 is not very much coverage. If you are involved in a three-car accident and total a new Lexus and an "almost" new Mercedes, $50,000 property damage coverage may not be enough. Also, get the same amount of Uninsured Motorist (UM) coverage as your Liability coverage. Consider getting an Umbrella Insurance Policy.

 

Q. Everybody must have Liability coverage, so why should I insure the other driver? Why should I buy Uninsured Motorist coverage?

A. Even though every state requires that all vehicles be insured, by some estimates, as many as 25% of all private passenger cars and small trucks are uninsured. If you are seriously injured by an uninsured driver, or by a driver with very low coverage, you will be able to make a claim against your own insurance company to take care of your injuries. You are not insuring the "at-fault" driver, you are insuring yourself and your loved ones. High matching UM coverage is a good buy for you and your family.

 

Q. What if the accident happened while I was working?

A. In this case, you also have a Worker's Compensation claim. Under your Worker's Compensation coverage, your medical bills will be paid. Although under most Worker's Compensation plans, the insurance company is entitled to reimbursement from the settlement funds of your Personal Injury claim for the medical expenses actually paid on your behalf.

 

Q. What if the accident is partly my fault?

A. If an action of yours (i.e. driving 5 or 10 mph over the speed limit) contributed to the accident, you can still recover from the other driver's insurance company as long as the other driver is determined to be at least 51% "at-fault". The percentage is merely a matter of negotiation with the insurance adjuster. Courts refer to this rule as the rule of "comparative negligence". A few states use the rule of "contributory negligence" which prohibits you from recovering even if you are only 1% responsible. However, in practice the degree of your responsibility for the accident is a matter of negotiation with the insurance adjuster.

 

Q. Can I recover is I have a "pre-existing condition"?

A. Yes. The fact that you have a "pre-existing condition" will not prohibit you from recovering from the negligent driver. Your "pre-existing condition" is merely a factor to be considered in resolving your claim. The question is whether the other driver aggravated your "pre-existing condition". The negligent driver takes you in whatever condition you are at the time of the accident. The fact that someone else would not have been injured is irrelevant. A person in a weakened condition may actually recover more than an extremely fit person would recover in the same accident.

The Spalding Partnership, LLP

16401 Swingley Ridge Road

Suite 110

Chesterfield, Missouri 63017

 

636-532-6100 telephone

636-532-6612 facsimile