How to Win Your Personal Injury Claim
The #1 Personal Injury Guide
Joseph Matthews, Attorney
May 2012, 8th Edition
Know your rights! Find out how to make the best case for yourself and win your personal injury claim.
Dealing with insurance companies and lawyers when filing a personal injury claim can feel like another accident is in the offing. But you can handle a claim yourself -- and save hundreds or thousands of dollars in the process.
How to Win Your Personal Injury Claim shows you how to handle almost every accident situation, and guides you through the insurance claim process, step by step. Learn how to:
- protect your rights after an accident
- determine what your claim is worth
- handle a property-damage claim
- deal with uncooperative doctors, lawyers and insurance companies
- counter the special tactics insurance companies use
- prepare a claim for compensation
- negotiate a full and fair settlement
- stay on top of your case if you hire a lawyer
This edition of How to Win Your Personal Injury Claim provides your state's most recent laws, small-claims court limits and Department of Insurance contact information. Plus, you'll find an all-new chart explaining your state's in-car text and cell phone laws.
“Reveals step-by-step how lawyers and insurance firms process personal injury claims, and the secret formulas used to pocket a hefty share of your settlement.”-San Francisco Examiner
“Finally a book that takes the mystery out of personal injury claims…consumers can confidently handle claims against insurance companies and save the cost of legal fees.”-Los Angeles Times
- Accident Claim Worksheet
Joseph Matthews has been an attorney since 1971, and from 1975 to 1977 he taught at the law school of the University of California, Berkeley. He has for many years been involved in matters relating to seniors, and is the author of Social Security, Medicare & Government Pensions and Long Term Care: How to Plan & Play for It, as well as How to Win Your Personal Injury Claim.
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Who Can Use This Book?
- What Kinds of Claims Can You Handle Yourself?
- How to Use This Book
1. Handling Your Personal Injury Claim
- Why You Often Can Handle Your Own Claim
- When You Might Need a Lawyer
2. Whose Fault Is It? How Legal Responsibility Is Determined
- Basic Rules of Legal Responsibility
- Liability in Specific Types of Accidents
3. Initial Steps in Settling Your Claim
- The First 72 Hours: Protecting Your Rights
- Getting a Claim Started
- Special Rules for Accidents Involving the Government
4. Understanding Insurance Coverage
- Motor Vehicle Insurance
- Nonvehicle Liability Insurance
- Your Own Health Coverage and Accident Claims
- No-Fault Laws: State Summaries
5. How Much Is Your Claim for Injuries Worth?
- The Damages Formula
- How Injuries Affect Compensation
- Demonstrating Pain and Suffering
- Lost Income
- Property Damage
- Arriving at a Final Compensation Value
- Examples of How Much Different Claims Are Worth
6. Processing Your Claim
- Collecting Information
- Preparing a Demand Letter
- Sample Demand Letters
7. Property Damage Claims
- What Type of Claim to File
- Amount of Compensation
- Processing Your Claim
- Negotiating a Settlement Amount
8. Negotiating a Settlement
- Adjusters: Who They Are and How They Work
- How the Negotiation Process Works
- What to Do When You Can't Get a Settlement
- State Statutes of Limitations
9. Finalizing Your Settlement
- Confirming the Offer and Acceptance
- Formal Settlement Document
- What to Do If the Check Doesn't Arrive
- Liens on Your Settlement Money
- Taxes on Your Settlement Money
10. The Last Resorts: Lawyers, Arbitration, and Courts
- Small Claims Court
11. Working With a Lawyer
- Reasons to Use a Lawyer
- Finding the Right Lawyer
- Paying the Lawyer
- Managing Your Lawyer
- Accident Claim Worksheet
Handling Your Personal Injury Claim
Why You Often Can Handle Your Own Claim......................................... 4
The Claims Process Is Simple................................................................ 5
You Know Your Claim Best.................................................................... 5
The Compensation System Is Structured.............................................. 5
Save Money on Legal Fees.................................................................... 6
When You Might Need a Lawyer................................................................ 6
Serious Long-Term or Permanently Disabling Injuries....................... 6
Severe Injuries........................................................................................... 6
Medical Malpractice.................................................................................. 8
Toxic Exposure.......................................................................................... 8
When an Insurance Company Refuses to Pay.................................... 9
The world’s most solitary tree is located at an oasis in the Tenere Desert in central Africa. There is no other standing tree within 31 miles. In 1960, a Frenchman accidentally rammed into it with his truck.
In 1896, there were only four automobiles registered in all of the United States. Two of them ran into each other in St. Louis.
Walking up and down stairs is not usually considered tricky. Yet every year thousands of Americans are injured falling on stairs, often from defects in the stairs that they never noticed before the fall.
In this crowded, hectic, and corner-cutting world, no matter how careful you are, the odds are still great you’ll be injured in an accident caused—at least in part—by another person’s carelessness.
And what happens after the accident can often be as exasperating as your injury. A whole lineup of profiteers lies in wait to make sizable gains from your injuries. First and foremost is the insurance industry. With their tentacles wrapped around every inch of our lives, the virtually unregulated insurance companies take 12 cents out of every dollar you earn, whether or not you are ever in an accident. Part of the insurance stranglehold comes in the exorbitant rates charged for car, home, business, and health insurance. Then, after a claim, insurers bulldoze over people who stand in the path of their profits by denying as many claims as possible and paying as little as they can get away with on the claims they are forced to honor.
The health industry joins in to increase the financial pain of an injury. Medical care is controlled by a corporate health industry creating wildly expensive medical treatment and contributing greatly to outrageous health insurance costs.
The lack of protection for lost work time also hikes up individual losses. Employers permit very limited paid time off. Americans average fewer than 11 paid nonmedical days off per year, by far the fewest of all the major industrial nations of the world. The Netherlands, for example, averages 32 days off per year; Germany, 30; and Japan, 24. And as anyone who has ever been off work for any length of time knows painfully well, the American government provides precious little backup for lost days and lost jobs.
Finally, our legal system twists rather than straightens an injured person’s road to compensation. The legal system provides few alternatives for obtaining compensation outside of the lawyer-dominated claim and lawsuit system. And when lawyers are involved, they take 33% to 40% of a person’s injury compensation—and run up sometimes staggering costs that come out of the injured person’s pockets.
Why You Often Can Handle Your Own Claim
Few people realize that, after an accident, it is often possible to get around some of these roadblocks to fair compensation. With basic information about how the accident claims process works, a bit of organization, and a little patience, you can handle your own injury insurance claim without a lawyer—and without the insurance company unfairly denying or reducing your compensation. In fact, you may be able to get more compensation for your injury and a faster resolution to your claim by handling it yourself instead of hiring a lawyer and paying attorney fees. And you can certainly receive more than you would if you submitted a claim yourself without knowing how insurance companies and their claims processes work.
Settling Claims Is Cheaper for Insurers
An insurance company’s willingness to settle your claim quickly has nothing to do with fairness and everything to do with the company saving money in the long run. It’s simply cheaper for it to pay you than to prolong the fight.
In the first place, insurance companies must spend money to fight. The longer an adjuster works on a claim, the more money the company is spending on that claim. If lawyers get involved, the company’s expenses become steeper. And if the claim actually goes to court, costs skyrocket. Therefore, once an insurance company knows it is likely to have to pay somewhere down the line—because you understand how much your claim is worth and will not drop your claim without a settlement—it makes financial sense for the company to pay sooner rather than later.
The cost of fighting claims is so great for an insurance company that it will often pay a claimant at least a small amount—what is called “nuisance value”—even if the odds favor the insured if the claim went to court. In other words, if it costs an insurance company several thousand dollars in legal costs to fight a claim in court, and there is any chance the company might lose, it is statistically much cheaper for it to pay a quarter or a tenth of that as nuisance value compensation to settle the claim early. (See “Nuisance Value,” in Chapter 5.)
The Claims Process Is Simple
Despite what the insurance industry and some lawyers would like you to think, settling an injury claim with an insurance company is usually quite simple. Most claims involve no more than a few short letters and phone calls with an insurance adjuster who has no legal training and no more information than you’ll find in this book. You don’t need to know technical language or complex legal rules. Your right to be compensated usually depends on nothing more than commonsense ideas of who was careful and who was careless.
You Know Your Claim Best
You know better than anyone else—insurance adjuster or attorney—how an accident happened. You were there, they weren’t. And you know best what injuries you suffered and what your physical condition and other circumstances have been since.
The Compensation System Is Structured
The amount of fair compensation in any given case does not come out of a crystal ball that only lawyers and insurance companies know how to read. Rather, a number of simple factors—type of accident, injuries, medical costs—go into figuring how much any claim is “worth.” The amount an insurance company will be willing to pay usually falls into a fairly narrow range, whether a lawyer handles your claim for you or you handle the claim yourself. An insurance adjuster who learns that you are organized and that you understand the claims process will usually settle the claim with you right away, and for virtually the same amount as if you had a lawyer.
Save Money on Legal Fees
If you hire a lawyer to handle your claim, the lawyer will take a fee of up to 40% of your recovery—and charge you for “costs” that seem to appear out of thin air and can quickly run into hundreds of dollars. Yet, except in serious or complicated cases, a lawyer can usually gain for you, if anything, only an extra 5% to 20% above what you can obtain for yourself once you understand the process. Subtract the lawyer’s fees and costs from the extra amount of the settlement, and you can actually end up losing more than a third of the money to which you are entitled.
When You Might Need a Lawyer
Sometimes, the skills of an experienced personal injury lawyer, or at least the threat that such a lawyer presents to an insurance company, are worth the money you have to pay that lawyer to represent you. You may need a lawyer because of complex legal rules involved in your claim, because your injuries are so serious that the potential amount of your compensation might vary greatly, or because an insurance company refuses to settle the matter with you in good faith.
SEE AN EXPERT
Hiring a lawyer later in the process. If, after you have presented your claim and negotiated with an insurance company as explained in this book, you do not feel the insurer is offering a fair settlement, you can retain an attorney to finish the process for you. Or you may be able to consult an attorney on an hourly basis to see if he or she can spot a particular legal argument that might help you to move the insurance company toward a more reasonable offer. (See Chapter 11.)
There are no hard and fast rules about when you do and do not need to hire a lawyer. Much of the decision has to do with how you feel things are going as you attempt to settle your claim on your own. At some point, you may feel overwhelmed—by too much work, or by some obscure legal rule the insurance company decides to throw at you. Or you may be stonewalled by an insurance adjuster who blusters that the company does not have to honor your claim at all, or who offers you only a piddling amount to settle it. In these situations, you may want to consult an attorney for advice, and perhaps have him or her take over handling the claim. These situations are discussed in detail in Chapter 11.
There are a few types of injuries and accidents that almost certainly require that you hire a lawyer. They include the following situations.
Serious Long-Term or Permanently Disabling Injuries
Some accidents result in injuries that permanently or for a long time—more than one year—seriously affect your physical capabilities or appearance. Figuring out how much such a serious injury is worth can be a difficult business that may require an experienced lawyer. Even if you decide to handle the matter yourself, an injury with a long period of recovery or a permanent physical effect really requires that you consult a lawyer for an hour or two to make sure you have covered all the bases in your claim.
The amount of your accident compensation is mostly determined by how severe your injuries are. And the severity of your injuries is measured by the amount of your medical bills and your lost income, as well as the length of time you remain in pain or disabled. Once your medical and lost-income figures begin to rise, not only does the amount of compensation rise, but it becomes more difficult to gauge the range of fair compensation an insurance company is willing to pay. And once these figures get high and the range gets broad, it may be worth the fee you would have to pay to have a lawyer handle your claim.
In Chapter 5, we explain how to gauge how much your claim may be worth. In a less serious case, with medical costs and income loss of a few thousand dollars, it is rarely worth your money to hire a lawyer.
Your medical costs and income loss are $2,500 and you fully recover from your injuries in a few months. Applying the damages formula (discussed in Chapter 5), you know that your compensation will be between $5,000 and $10,000—no lower and no higher. Therefore, you can negotiate within that range to get the highest possible amount without worrying that you might instead have received $20,000 or $30,000 if you had hired a lawyer to negotiate for you. Also, you know that even if you got $7,500 on your own and a lawyer could have obtained $10,000, the lawyer’s fee and costs would have reduced your actual compensation to less than $7,500, anyway.
But when the injuries are severe and the medical costs are high—over $10,000 or so—the range of potential compensation can become very wide—from $20,000 to $100,000. Because the difference between the low end of this range and the high end is so great, it may be a good idea to take advantage of the experience of a knowledgeable personal injury lawyer to ensure that you get the highest possible amount, even taking into account that the lawyer’s fee will eat up a large part of your final award.
Your medical bills are $15,000 and you are able to get a settlement offer of $50,000 by yourself, but a lawyer might be able to get $75,000 to $100,000 for you. Even after the lawyer takes one-third as a fee, you would be left with between $50,000 and $67,000—up to $17,000 more than you obtained on your own. And the lawyer will have done the work.
No fixed cutoff point in medical bills and lost income determines when you should consider hiring a lawyer. Some people feel more comfortable hiring a lawyer as soon as their bills reach a couple of thousand dollars, regardless of any other factors in the case. Other people would handle a similar claim on their own and avoid the lawyer’s fee, even if their medical bills reached $10,000 and their potential compensation $100,000.
Finding the Right Lawyer
Deciding that you want to consult with or hire a lawyer is one thing, and finding the right lawyer is another. Only some lawyers are experienced in personal injury claims. And if your claim were simple enough for an inexperienced lawyer to handle, you would be handling it yourself. It is important to find a lawyer who can handle your particular kind of claim, and also to find one with whom you are comfortable. (See Chapter 11.)
The only way to know whether you feel comfortable handling your own claim is to understand how compensation amounts are calculated and apply those criteria to your situation to get a rough idea of what your claim might be worth. (See Chapter 5.) Then decide—either right away or after negotiating for a while with the insurance company—whether to continue handling the case on your own, consult with a lawyer on an hourly basis, or hire a lawyer to handle your case. (See Chapter 11.)
If you have suffered an injury or illness due to careless, unprofessional, or incompetent treatment at the hands of a doctor, nurse, hospital, clinic, laboratory, or other medical provider, the complexities of both the medical questions and the legal rules involved almost certainly require that you hire a lawyer experienced in medical malpractice matters.
We sometimes become ill because of exposure to chemicals in the air, soil, or water, in products we use, or in food we eat. Even some molds that are naturally occurring can cause severe health problems. Claims based on such exposures are difficult to prove, however, and often require complex scientific data. Because the chemical and other industries have erected a huge wall to protect themselves from legal exposure while they continue to expose us to chemicals, the required evidence is very hard to come by. As a result, fighting a claim for toxic exposure requires the services of a lawyer experienced in such cases.
Don’t Be Shy—You’re Entitled to Compensation
The insurance industry spends fistfuls of money each year on well-placed “news” stories to create the impression that most people who file personal injury claims are trying to cheat defenseless insurance companies. These stories often depict people grossly exaggerating their injuries or fraudulently staging fake accidents. As a result, many people are too embarrassed to file legitimate claims, or they accept far less than they are entitled to when an insurance adjuster takes a high-and-mighty tone.
The insurance industry collects vast sums of money in premiums to provide protection for every aspect of our daily lives: car, home, and business. And that money—minus the industry’s huge profits—is specifically intended to compensate people injured in accidents. Injured people are not being greedy when they make insurance claims, and insurance companies are not being kind or generous when they pay them. Instead, injury compensation is exactly what we have all been paying for when we send in our insurance premiums, month after month, year after year. So, if you have the misfortune of being injured in an accident, don’t hesitate to pursue your claim vigorously. You’ve paid for it.
When an Insurance Company Refuses to Pay
In some instances, regardless of the nature of your injury or the amount of your medical bills and lost income, you will want to hire a lawyer because an insurance company or government agency simply refuses to make any fair settlement offer at all. This is often referred to as “stonewalling,” because negotiating is like talking to a stone wall. An insurance company may stonewall when it denies that its insured is at all responsible for the accident, or denies that the insured was covered for the type of accident that happened. You can also run into stonewalling when your claim is against a governmental body that claims it is immune—legally protected—from responsibility for the accident. These situations are discussed in detail in Chapter 11.
If, after repeated efforts, you are unable to obtain a fair offer, you might be forced to see whether an attorney can do better for you. In these cases, something—what the lawyer can get minus the fee charged to get it—may be better than nothing.