After an Accident

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Wayne Howell, Esq.
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First Things First
On the day of the accident, you are best served by following our 10 Dos and Dont's After an Accident.  We have this available as a handy brochure that you can keep in your glove compartment.  It contains the Tips, a place to record important accident information and a very brief discussion of insurance coverages.  Email us to request a copy by mail.

Your primary concern at this point is your body.  If you know or suspect you are injured, get immediate medical care at a hospital or urgent care.  Make sure your passengers do the same.  If you are up to it, take photos of the accident scene with a camera or your cell phone.

The Next Day
The next day, or later the same day if you are able, you want to call your insurance company and start the property damage claim.  If your vehicle is safe to drive, you want to go to a quality independent body shop for an estimate.  You want an independent estimate because the estimates from the insurance companies tend to underestimate the damage.  If your vehicle was towed, you want to have your preferred body shop retrieve it from the towyard.  Our document  Property Damage Information is a handy resource to keep for reference.

Avoiding Mistakes
Now that you have taken the initial steps to protect yourself physically and financially, it is time to get a free consultation with an attorney.

 Why is this so important?  The defendant insurance company may be calling you, asking questions, requesting a recorded statement, making you an offer to settle immediately.  You likely will not be feeling well physically and may be distracted by your pain or less alert due to the effects of medication.  The primary job of the defendant insurance company is to pay as little as possible, and this is is the perfect time to take advantage of you.  Signing away your rights for a pittance or being tricked into making statements that will work against you is a real risk at this time. 

Do I Need a Lawyer?
Absolutely!  Well, not absolutely, but probably.  You see a lawyer about money; that is how the system works.  It is always about the money, getting it and holding onto it.  So you need a lawyer if having one will result in you having more money in your pocket at the end of the case.

You don't need a lawyer if you are not hurt.  Within the universe of accident claims, a person who is hurt is expected to get medical care immediately, consistently and until he is better.  Soft tissue injuries from a car crash may not be apparent right away.  At the time of the crash, you are excited and that may mask your symptoms.  You may start to feel stiff and have a headache later in the day, and the next morning you may wake up feeling as if someone had attacked you with a baseball bat in your sleep.  However, within this context, if you do not feel poorly enough to see a doctor within three to four days after the crash, the other side will have the argument that you are not hurt.

You need a lawyer if you are hurt but have no health insurance.  If you have pain, you need to obtain medical treatment, and it is no excuse that you may not have health insurance.  It only matters what you do.  A personal injury attorney can help you locate medical providers who will treat you with no out-of-pocket cost and who will wait for payment until your claim is settled. 

You need a lawyer if you are hurt and do have health insurance.  If you have insurance, you want to receive the benefit of that insurance.  In an accident situation, some medical providers will resist submitting their charges to your health insurance, believing that they will be able to receive more than your health insurance will pay them by demanding to be paid from your accident settlement.  Some providers will submit to your health insurance, but insist that they are entitled to a lien, taking the amount of your health insurance's contractual adjustment from your settlement.  Some medical providers will ask you for your auto insurance information, because you may have coverage that will pay them additional money. 

The law governing who is allowed to claim a lien, with which health insurance plans, and what they must do to establish their lien right is complex.  Many medical providers do not understand the law, but insist that they are entitled to extra money because you were hurt in an accident.  It comes down to them wanting your money.  A lawyer who practices primarily or solely in the area of personal injury is equipped to help you keep other people's hands out of your pocket.

Likewise your health insurance itself may have a claim for reimbursement of what it paid.  This too is complicated, and the fact that your health insurance provider may not have a legal right to be reimbursed does not keep it from wanting your money.  A personal injury lawyer can help you determine whether your health insurance has a reimbursement right at all, and if it does have a reimbursement right can help you negotiate with them to possibly pay back less. 

You need a lawyer if the other side does not immediately accept liability for the crash.  If the facts of your accident are such that the other side may have an argument that the crash was partially your fault, or if it is not clear that there is coverage for the other vehicle, you will have to make decisions to protect yourself despite the other side's position.  If litigation becomes necessary, you definitely want a lawyer on your side.

You need a lawyer if you have serious injuries.  The more serious your injuries, the more complicated your claim becomes.  Frequently, if you are hospitalized, you will not be aware of all the providers who see you.  The greater your bills and the higher the potential settlement, the more opportunities exist for a lawyer to help you get a fair settlement and to negotiate claims against your settlement proceeds.  Medical providers may have liens, which are claims against your settlement, to try and recover amounts that are written off under your health insurance.  Your health insurance itself may have a claim against your settlement for reimbursement of amounts paid to medical providers.  These claims are extremely complicated and a lawyer is much more able to protect your rights in this regard than are you on your own.

Most of the time when you suffer serious injury, the greatest concern is that there is insufficient insurance coverage available to pay your medical bills and to compensate you for your injuries.  Making the available money go around is a large part of a lawyer's work nowadays.

I was in a relatively minor accident and just need to see a chiropractor.  Will a lawyer get me more money than I will get on my own?  Maybe, maybe not.  There are never any guarantees, but you would tend to expect  it to be that way.  First, a lawyer who represents accident victims all day, every day will tend to not make the same mistakes you would in proceeding with your claim.  Second, rarely will you be satisfied with the offers you receive.  A personal injury lawyer is in a better position to evaluate the offers on your claim relative to what other claims settle for.  Third, the insurance companies tend to make better offers to claimants who are represented, because they know that it is far easier for a lawyer to follow through with litigation.

You may be able to benefit from having an attorney, but find that a large law firm cannot take your case.  There is often confusion between the questions of "Do I have a case" and "Will you take my case".  If you were hurt, it is the fault of someone else, and there is money somewhere to compensate you, then you have a case.  The issue is whether your claim is large enough that it makes business sense for the large law firm to take your case. 

  • If the damage to your vehicle is minor, the outcome of your claim will be limited.  This is the first rule of accident cases.  A juror viewing a photo of a vehicle with minor damage makes the snap decision that the person inside should not have been seriously injured.

  • If the other side has a credible argument that the accident was partially your fault, the outcome of your claim will be limited.  The fact that the other party received a citation does not dictate the outcome of the claim. 

  • If there was a delay before you obtained treatment, or if there were gaps in your treatment, or if you treated for less than the usual amount of time, the outcome of your claim will be limited.  As well, if the other side has an argument that you obtained more treatment than you needed, the settlement offer may not take all of your treatment into account.

A large law firm spends considerable money advertising and has high overhead.  The factors above may limit the legal fee that will be earned from your case and make it debatable whether it makes sense for a large law firm to represent you.  At some point, even though you "have a case" a large law firm may lose money if they agree to represent you.

In contrast, a small, one or two attorney law firm sees every case as a benefit, and the attorneys are generally not under the same crushing workload as those in a large firm, so they can make time to handle your small claim and will appreciate the opportunity to do so.

Resolving Your Property Damage
This topic is covered pretty well in our document Property Damage Information.  The high points are that you have to act quickly, that you have the choice to resolve your property damage through either your own or the defendant's insurance company, and that you can have your vehicle repaired at the facility of your choice.  If your vehicle is declared a total loss, the paperwork can be confusing and you may benefit from consulting with personnel from your attorney's office.

Pursuing Your Personal Injury Claim.  
Every claim is different; the point of this section is just to give you an idea of what to expect.  From your perspective, once you contract with your lawyer to handle your claim and you have started treatment, you will not notice much happening until some time after your treatment is complete.  During this time your attorney will be contacting the applicable insurance companies and setting up claims, obtaining police reports, reviewing police reports to determine whether witness statements or police investigation photos need to be obtained, determining whether health insurance subrogation issues apply and following up accordingly, and a host of other routine administrative tasks.

It is important that you advise you attorney of every new medical provider you see and when you are finished treating with each provider.  When all of your medical records and bills have been obtained, they will be sent to the appropriate insurance company(ies) with a demand for settlement of your claim.  Four to six weeks may go by before the insurer makes an offer, at which time your attorney will contact you advising of any offer and discussing options for how to proceed.

Wayne Howell - After an Accident