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Friday, June 23, 2023

How to Maximize Your Personal Injury Claim

There is never a good time to get injured in an accident.  However, accidents are a fact of life.  The National Highway Traffic Safety Administration determined that in the year 2000 there were a total of 35,766 fatal car accidents on the roadways across the United States with another 1,593,390 crashes resulting in injuries and 3,621,681 caused property damage. That means a total of at least 5,250,837 collisions happened over the course of a single year. 

To be successful in a personal injury claim, there are three things that you need to have on your side: liability, damages, and coverage.  Liability means that the other party owed you a duty of care, breached their duty of care, and as a direct result of their breach of duty you suffered an injury which led to damages.  Damages are just as important to your personal injury claim as liability.  Damages can be economic damages (also called special damages) which refer to the financial losses or expenses created because of your injury.  These include medical bills and lost wages.  Damages can also be special damages which include pain and suffering, scarring, loss of use, loss of enjoyment of life, loss of consortium, mental anguish, and humiliation.  These can be harder to prove because there is no intrinsic value to prove these damages.  Finally, even if you have liability and damages on your side, you also need there to be good insurance coverage limits available.  These include bodily injury liability coverage (on the at-fault driver’s policy), personal injury protection (on your policy for you and your passengers), and uninsured/underinsured motorist coverage (as discussed further below).  If you just have two of the three of these categories on your side, you may not have a successful personal injury claim.

 

While my sincere hope is that you and your loved ones are never involved in an accident, there are ten tips that I’d like to share to maximize potential recovery and protect you and your loved one’s interests. 

1.  Have adequate underinsured and uninsured coverage.  Making sure you have enough uninsured and underinsured coverage on your automobile policy is something that is easy to do and every driver should do immediately.  Seriously, carve out the time to contact your insurance agent to make sure you have adequate underinsured and uninsured coverage.  For those unfamiliar, uninsured motorist coverage is a type of car insurance that can pay for medical expenses if you or your passengers are injured in an automobile accident caused by a driver who does not have any liability car insurance, is a hit-and-run driver, or a driver whose insurance company denies coverage or goes out of business.  Uninsured motorist coverage can pay for medical bills, lost wages if you cannot work because of the car accident, pain and suffering compensation, and funeral expenses.  This is money that goes from your insurance company to you.  Underinsured motorist insurance (UIM) is separate coverage but is sometimes packaged with UM.  UIM pays for medical bills and expenses for you and your passengers if your car accident is caused by a driver who does not have enough liability insurance coverage to cover your medical bills.  Remember the three keys to having a successful personal injury claim are liability, damages, and coverage.  The last one is the only one that you have control over before an accident even happens.  The minimum coverage that drivers in Massachusetts are required to carry is $20,000.00.  If you are seriously injured in an accident, this amount may very well not be enough to cover your medical expenses (not even considering pain and suffering).  If you have little or no underinsurance coverage, you may be out of luck.  However, if you do proper planning, and have $250,000 in under insurance coverage, you now have the at fault drivers’ $20,000.00 in liability coverage available, plus $230,000.00 in underinsurance coverage available from your own insurance company.  This benefit only costs a few extra dollars a year and is absolutely worth it.

2.  Document everything.  It may not be your first instinct to snap pictures after getting into an accident, but it can be the difference between a winning claim and a losing claim.  It is very common for an at fault driver to take responsibility in the moment and then change their story once an insurance claim or lawsuit is filed.  All of a sudden, that driver that ran through a stop sign may now try and say that you did.  Or that shop owner that did not throw sand down on its icy stairs may say the stairs were bone dry.  Without photographs proving what the accident scene looked like, there would only be two stories and no evidence.  This is especially true of road conditions that will change even if you come back the next day to take pictures.  Almost everyone has access to a camera on their smartphone, so make sure to take as many pictures as possible (especially if you are not at fault for the accident).  It is recommended to take photographs of all the vehicles involved before they are moved off of the roadway (if it is safe to do so), the damage to all the vehicles involved, skid marks on the road, and your injuries both on the day of and until the injuries resolve. 

3.  Obtain as much outside documentation as possible.  We just talked about what you can do to preserve evidence in the moment, but it is also possible to investigate if there are any other sources of potential evidence to obtain.  The best example of this are security cameras that may show the accident occur or show how a dangerous condition came to be.  Security cameras can be requested not only from businesses but also from individuals who may have at home cameras such as ring cameras that may have caught something useful.  This type of evidence is often very time sensitive as not all security cameras retain information for extended periods of time.

4.  Secure witnesses.  Most times, people that see accidents occur are strangers that you have never met and may never see again.  If someone sees the accident, ask them for their contact information as your attorney or insurance agent will likely want to speak with them.  A person with no skin in the game may be very helpful if they witnessed the accident and believe the other person was at fault.  Many cases are won (or, at least, quickly settled) based on the favorable statement from an unbiased witness.  It would be terrible if the helpful witness left the scene with no way to find or contact him or her.

5.  Get the medical care that is needed.  Don’t play tough guy.  You will win no points in an injury claim if you try to work through the pain without care and treatment from a health care provider.  Unless you have your entire life documented, an insurance company will always be suspicious if you were hurt one day but did not go to a medical professional until a week later.  To the insurance company, there will be no way to prove that your injuries or pain came from the accident as opposed to something else that may have happened to you in the intervening time between the accident and when you sought treatment.  Likewise, if you think you are not hurt too badly and it will get better on its own, it will be far more challenging to convince an insurance company that it was because of the accident if you wait too long to get treatment.  Get yourself to a health care provider and follow their advice.

6.  Always be honest.  Hopefully this goes without saying, but honesty counts in a personal injury claim.  If you bring a claim, your medical history will become available to the other side so downplaying (or outright lying about) a prior injury will only hurt you.  A negligent party is responsible if they make an underlying condition worse, so trying to hide that an underlying condition exists will only hurt your credibility.  Additionally, in the age of social media and electronic recording devices, you have to assume that the truth will always come out.  If you say you are so injured that you cannot get out of bed and the insurance company gets a recording of you going for a jog around the neighborhood, your case is over before it began.

7.  Be patient.  This may be the hardest one of all, but a personal injury claim can take a long time to go through.  There are many reasons for this.  The first is that you want to make sure you are at an end result before even considering settling a claim.  If you rush to settle and then need additional care and treatment, you cannot go back to the at fault party.  The insurance company will always try and undervalue the case to offer a quick settlement.  Remember, only fools rush in.  There is a reason the statute of limitations for a personal injury claim is three years- there needs to be time to properly assess your injury claim and maximize its potential.  It is not uncommon for even simple personal injury claims to go on for years as opposed to months.

8.  Avoiding sharing too much information with friends and family (and, more importantly, social media).  It is absolutely appropriate to talk about your injuries with friends, families, co-workers, and any one you would like.  However, every single person that you speak with could potential become a witness either in your favor or against you.  If you downplay your injuries to be a tough guy, the insurance company can use that against you.  If you embellish your injuries to get out of going to a family event or work function, the insurance company can use that against you.  More and more commonly, if you post pictures of yourself on social media depicting you doing things that an injured person probably would not be able to do (i.e. running a marathon, carrying heavy items, etc.), the insurance company can use that against you.  Be cautious on what information you are providing to others and to the outside world.  The insurance company may be looking. 

9.  Don’t talk to an insurance adjuster without a lawyer.  There are many wonderful insurance adjusters out there, many of whom are extremely kindhearted and sympathetic.  However, their goal is always to protect the profits of the insurance companies.  If the insurance adjuster just gives away generous settlements, he or she will be fired very quickly.  To be on the safe side, always have the communications with an insurance adjuster go through an experienced attorney who understands what traps exist in the insurance world and can navigate your claim through them.

10.  Get a personal injury attorney who will litigate your claim if necessary.  If you have been injured because of someone else’s negligence, you may be wondering what you can do to protect your rights and have the best chance of winning your personal injury claim.  Consulting a personal injury lawyer will be your best chance at recovering damages for your injuries, medical bills, lost wages, and property damage.  Most injured parties do not want to file a lawsuit or every spend a day in Court.  That is fine.  However, make sure your attorney is willing to do so.  The insurance company will likely be familiar with your attorney and if the attorney never steps foot in a courthouse, it will help the insurance company minimize the value of your case.  If the insurance company knows your attorney would be more than happy to try your claim (even if your attorney knows that is not an option based on the client’s wishes), the insurance company will be more likely to come to the table with a better settlement. 

According to the U.S. Department of Justice (DOJ), there are over 400,000 personal injury claims filed in court every year.  Only about four percent (4% )of cases (approximately 16,400) ever actually go to trial as most cases are settled out of court.  Therefore, the best thing you can do is put yourself in the best position to settle or win your case.

If you have any questions regarding personal injury claims, please feel free to contact the Law Offices of Samuel S. Reidy for a free consultation.

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