Automobile, Personal Injury Insurance Claims Dos and Don’ts
I was in a car wreck. What do I do now?
I handle car wreck injury claims as my career. I am literally dealing with car wrecks 24 hours a day seven days a week. In fact, since my clients contact me on my cell phone, my daughter has heard so much about car wrecks that she has even corrected her teachers at school when they incorrectly described the legal system. In contrast, I feel for my injury clients. This is probably the first time they have deat with a serious car wreck and they are hearing 20 different things from friends, family, lawyers and insurance adjusters.
When you are involved in a car wreck, you have legal claims, a.k.a. "causes of action", for at least the following: 1) property damage to your automobile; 2) the lessened value of your motor vehicle; 3) your medical bills and lost wages; 4) a claim for pain and suffering. You should proceed with caution as your actions may have a significant effect on your legal rights and your personal injury compensation.
- DO consult a personal injury attorney for legal advice concerning the car crash. My cell phone is 502-609-7657 and yes, Attorney Jim Desmond will answer your call. I don't use an answering service! I want to talk to you. If I can't help you, I am happy to give you some free, legal advice to allow you to handle your personal injury claim on your own.
- A car wreck attorney should review your automobile insurance policies and the police report with you. Any personal injury attorney worth a damn should not charge you for the initial meeting. Moreover, you are free to not use their legal services. This is your injury claim. The lawyer, the doctors and the insurance company will all be moving on to another claim six months from now. Make sure that all these professionals are always working for you and doing what you need to recover from these life-altering injuries.
- You should notify your automobile insurance company right away after you are in a car wreck. Your company has a right to investigate your personal injury claim and has a duty to defend you from any claims asserted by the other driver. I will tell you to cooperate with them but, do not minimize your injuries when you speak with them. Many injuries from a car wreck do not show up until several days after the accident.
- Allow your insurance company to arrange for the inspection of the property damage to your motor vehicle. And yes, if they want to move your car to a lot that does not incur storage charges, I will suggest you let them. Also, take pictures of damage done to your motor vehicle by the car wreck.
- Take pictures of your contusions/bruises or lacerations/scrapes. Just make sure the pictures are such that you are comfortable with them being forwarded to an insurance adjuster in the future. If you can, take pictures of the damage to your car and the accident scene as well. While it may sound strange to say this so early after a car wreck, you are trying to get your claim ready to present your injuries and medical treatment to a jury several years from now. Recall that Mom always told us that a picture is worth a thousand words.
- Get the names and phone numbers of the insurance adjusters with whom you communicate. You will also want the claim number assigned to your personal injury claim. It will be used in all future communications with the insurance carrier. Ask the insurance adjuster you are dealing with who their insured is and what part of the claim they are handling. One insurance company will usually assign a claim to handle the liability decision while others will handle the property damage or the medical bills.
- Tell your car insurance company the truth. Not only does this save everyone a lot of time and effort, but questions of legal liability, stemming from a personal injury claim, can be complex. If you fail to be forthcoming with your car insurance company, you might not only be violating the law but realistically, lying hurts your injury claim. Whether it is a description of how the car accident occurred or how your injuries have affected your life, you don't want to give anyone reason to question your truthfulness.
- Allow a personal injury lawyer to investigate whether you have additional car insurance coverage that may not be readily apparent. Understand that the at-fault driver might have insurance coverage through a policy on the driver or one on the vehicle. Depending on the circumstances, an umbrella policy can also apply. Also, because you are a resident relative of someone else’s household, you might be able to recover under their automobile insurance. I have had cases wherein an automobile insurance policy applied to a motorcycle accident. It all depends upon how the policy was written and the facts of the accident.
- Keep the receipts for money you’ve spent on car rental, medical bills, prescriptions and purchases made in connection with the motor vehicle accident.
- Make sure you’re aware of the difference between the replacement value of your car and what you actually owe on the car. If the car is totaled, most car insurance will cover only the fair market value of your car at the time of the accident. You may owe more than that, however, on the loan or the lease of the car. Gap coverage makes up for this difference. Additional coverage is usually necessary for things like a special sound system in your car.
- DON'T settle any part of your personal injury claim. The latest tactic is for insurance companies to tell you that you don't need an attorney and they will pay you $500 to $1,000 to settle your claim right now. You need to understand that they are simply down playing the risk that you will need future treatment. See this blog post I wrote for more information on this subject. http://www.attorneydesmond.com/Blog/Car-Wrecks/42/Accepting-the-settlement-offer-of-an-insurance-company?s=&o=
- I tell all my clients as they are signing the release sent to us by the liability carrier that, "Suppose you go back to the doctor tomorrow and he says because of the accident you are going blind in your eye. It does not matter when it is discovered or how severe it is, you can't recover anything further!" In other words, don't sign a release as your personal injury claim will be finished as soon as you sign it.
- DON'T give the auto insurance company a recorded or written statement. You are not required to do so. However, I want to clarify my answer. An insurance company, whether it is your company or the company for the at-fault driver, has the right to investigate the facts of the claim. The problem is your statement can be used against you at a future date and it can be presented to a jury. So if you are going to give a recorded statement, make sure you don't minimize your injuries and don't guess at your answers. Remember that the person taking the statement is probably trying to protect the interests of the other driver, not assist you with your personal injury claim. Keep your answers brief and make sure such a statement is useful. If you were hit in the rear-end by a drunk driver, don't let some insurance adjuster bully you into a statement.
- DON'T sign a legal release or legal waiver until you have gotten reliable legal advice. You may feel pressure to agree to a personal injury settlement from an auto insurance company but, it is your legal rights you are signing away. Make sure you are ready to settle your personal injury claim.
- DON'T accept a check from your insurance company — especially one that says “final payment”.
- DON'T feel bad for contacting a personal injury attorney. Contrary to the popular misconception, most of my clients are not after a fast buck from a personal injury claim. Rather, the vast majority of my clients come to me and tell me that they would not be contacting me but, they thought it was necesary because of the way the insurance company treated them.
What Do I Do at the Scene of the Car Wreck?
If you have an automobile accident in Kentucky or Indiana, it is best that you call a police officer and ask that an accident report be created. I still encourage you to get the other driver’s information directly from his driver’s license as well as the license plate of the vehicle. For the at-fault driver, you will want his name, address, and his automobile insurance information. Try to see the actual insurance car for that motor vehicle, and write down the automobile policy number and a contact phone number for the insurance company. Also, make sure you write down any other names listed on the automobile insurance card. It makes things easier in tracking down the correct automobile insurance policy as the insurance company may not have a policy indexed under the at-fault driver's name but rather, under a relative's name.
In the Louisville area, it is pretty easy to run a person’s license plate. The department is called Kentucky Motor Vehicle Logistics and it is located in downtown Louisville. This department keeps the automobile insurance information on file for the last time that motor vehicle was registered. In Indiana, you have to try and contact the Indiana Bureau of Motor Vehicles in Indianapolis.
I also suggest that you talk only to the police officer about how the car wreck happened. It is his job to determine, as best he can, how the car wreck happened. You don’t want to be thinking you are at fault for a motor vehicle accident when in fact you are not.
Avoid anyone who comes to the accident scene and tells you that they can help you find a lawyer or a doctor. In Louisville, Kentucky, these folks are referred to as runners or bird doggers. They act like they are your friend and then they send you to a doctor or lawyer who pays them for the referral. Whether it is a doctor, chiropractor or lawyer, you want someone who has your best interests in mind. If someone has to pay for a referral, they don’t meet that standard.
How Do I Get My Police Report Amended to Correct Bad Information?
You can contact the investigating police officer and ask him to amend his report if it is inaccurate. However, my experience is that they are very reluctant to do so and my clients tend to get frustrated on this issue. Yes, the police report is very persuasive on the issue of fault. Nevertheless, it is not the final say on the issue of fault. In fact, unless the police report addresses facts such as distance, speed or objects that were hit, there is a good chance that a judge is not going to let a jury see it as it is considered to be hearsay.
Generally, I tell my clients don't try to get the police report amended. We will just have to present to the insurance company the evidence we have countering the incorrect information.
THE INSURANCE COMPANY WANTS TO TOTAL MY CAR OUT BUT I DON’T WANT IT TO BE A TOTAL LOSS. WHAT DO I DO?
According to Kentucky law, the insurance company has to total your car out if the repair costs equals 75% or more of the fair market value. The fair market value is what the car would have sold for before the day before the accident occurred.
You can keep your car. However, the insurance company assigns what it calls a “salvage value”. Salvage value basically refers to how much the insurance company will get from the junkyard once your car is totaled out. So if the insurance company was offering you $3,000 to settle your property damage claim and they assigned a $500 salvage value to your car, you could keep your car but they would only pay you $2,500 for the car.
Nevertheless, they will not issue you a check until you apply for a salvage title with the County Clerk’s office. You will need to check with the County Clerk as to what it takes to obtain a salvage title to on a car and to get it relicensed so it can be driven on the roads again as it is a complicated process. The gist of it though is that you have to turn in the license plate so that the car can not be driven on the road, get some work done to the car to make it roadworthy and have a mechanic complete a form obtained from the County Clerk describing the work that was performed. In other words, it is not an easy process. But if the car can still be driven after the motor vehicle accident as it was primarily cosmetic damage and the insurance company assigns a low salvage value to the vehicle, it can be worthwhile to obtain a salvage title. You have to look at each case, run the figures and make a determination as to whether it is worth the hassle of obtaining a salvage title.
My Car is a Total Loss. What Does the Insurance Company Owe Me for My Car?
If the car is a total loss, the insurance company owes you the fair market value of the vehicle. Of course, this figure can differ depending if you are using NADA, Kelley’s Blue Book or another source. I tell all my clients to get together all the receipts they can to show the car is worth as much as possible. You want to show the costs of any improvements to the car (e.g. radio, wheels, window tinting) as well as the fact that the car was in good working order. You want to show that I, as the average consumer, would have paid a higher than average fair market value because the car was well maintained.
Can I Get a Rental Car Because of the Automobile Accident?
Yes, you do have what is known as a loss of use claim if your vehicle was not drivable because of the motor vehicle accident. In Kentucky, the statute is KRS 304.39-115.
The statute is interpreted generally to provide a reasonable loss of use. Reasonable is usually interpreted as between 10 to 14 days of a rental car.
The Insurance Company is not Responding to My Request for a Rental Car. What Should I Do?
First, you need to understand that the insurance company is not going to pay for any of your damages unless they believe their insured was at fault in causing the accident. Second, they do have a reasonable amount of time to investigate the claim and get a statement from their driver. Lastly, they are not going to pay for anything if there is any coverage issue. For example, coverage issues can exist for non-payment of insurance premiums or unauthorized drivers using the vehicle.
If they do authorize a rental car, you need to understand that normally they will not pay for any insurance coverage on the rental car as most companies consider that our responsibility. I suggest you contact your own automobile insurance company and put collision coverage on your car insurance while you are using the rental car. It is cheaper than paying a company like Enterprise $20 a day for insurance coverage.
My Car Was Damage in a Car Wreck, but I was not Injured. How Can I Protect Myself?
Your case lives and dies on the material contained in your medical records. If you were truly not injured, great! However, if you are having any complaints of pain whatsoever, go and get checked by your family doctor within three days of the motor vehicle accident. Otherwise, if problems develop three weeks later, it looks like you were not hurting for the past three weeks and that the car wreck was not the cause of your injury.
How Do I Get My Car Fixed When it Has Been Involved in a Motor Vehicle Accident?
If you only have a property damage claim from a motor vehicle accident, you can address that claim in one of two ways. First, you can use your own automobile insurance coverage to pay for your damaged automobile if you have collision coverage on your car. The downside is you will out your deductible until it can be recovered from the at-fault driver’s insurance company. The upside is that your car will probably repaired faster.
The second way is to allow your property damage to be handled by the insurance company for the at-fault driver. The upside is that you don’t owe your deductible this way. The downside is that you have to know which company this person is insured with, allow them time to investigate the claim and allow them time to inspect your vehicle.
Can I Take My Car Wherever I Want to Get it Fixed?
Yes, you can take the car to whatever body shop you want to use to have it fixed. The insurance company cannot force you to use a particular body shop. Nevertheless, you may want to consider using a body shop they recommend since some offer extra assurances when one of the body shops within their network is used. Either way, please remember to use a body shop you can trust and make sure they did the work properly before you pick the car up. Once the insurance company cuts you that check for your property damage, they are going to take the attitude that their job is done and if the body shop did not do the repair right, you need to address that with them.
Do Consult a Car Crash Attorney
Your insurance company is legally obligated to follow through on the terms of its contract with you. You have the right to make sure that happens. Contact an attorney who will offer you support, guidance and advocacy. Speak with a lawyer from the Desmond Law Offices, PLLC, in Louisville, Kentucky, to discuss your situation. Whether the accident happens in Kentucky or Indiana, I can help. I can be reached at (502) 609-7657 or 855-REACH-MY-CELL. My office is located at 436 S. 7th Street, Ste. 200, Louisville, Kentucky, which is conveniently located in the heart of downtown.