Motor Vehicle Accident FAQ

 

  1. Do I need an attorney?
  2. What if you cannot help me?
  3. Won’t your attorney’s fee be the majority of any settlement I recover?
  4. What if I don't think I am hurt?
  5. I am currently represented by another attorney, but I can never get hold of him. Should I fire my attorney?
  6. Am I going to deal with you, another attorney or a paralegal?
  7. I have been in a motor vehicle accident. Should I go to a doctor?
  8. Do I have to go to court if I want to recover monetary damages?
  9. If the accident was my fault, can I still recover compensation?
  10. How much is my personal injury case worth?
  11. How soon do I need to bring my legal claim against the other driver?
  12. What if the insurance company offer me a check right away?
  13. What if the other driver, who caused the accident, has no insurance?
  14. Are there parties other the at-fault driver against whom I can take legal action?

 

1. Do I need an attorney?

Every case is different, but having an attorney represent you who is experienced in personal injury and who knows how to deal with the insurance companies can certainly increase your chances of getting a fair settlement or decision. It is kind of like selling your home by yourself.  Yes, you can do it but, a realtor has a better chance of getting a higher price and selling your home quicker. I do not charge anything for an initial consultation so call me.  Also, if you are going to handle your own case, remember it takes work to do it right. Make sure you ask yourself if you have identified all sources of recovery, how long you have to present a claim and who has a lien against my recovery and needs to be paid back from the settlement proceeds.

Back to Top

2. What if you cannot help me?

Then you get some free advice.  I may not be able to help you this time. However, I am happy to tell you what I know on a subject and point you towards attorneys who handles that area of the law. Further, I have a written policy in my contract that you owe me nothing unless I can recover money on your behalf.  I don't want you to call me so you can buy my product, legal services. I want to instill enough confidence in you so that you trust me to handle this case and any future legal issues that you might face.  This is how I intend to continue a successful legal practice and help you in the process.

Back to Top

3. Won’t your attorney’s fee be the majority of any settlement I recover?

Why would you ever use me if this was the case?  As a personal injury attorney, my job is not only to recover as much as a I can for you but also, to minimize the amounts that need to be paid out of your recovery.  I have an unwritten policy that my attorney’s fee will never be more than the amount you put in your pocket.  I can only do this policy for pre-litigation cases as the litigation costs to take a matter to trial usually range between $3,000 to $7,000.  However, I will always try to be fair with you in regard to my fee as I will never let it stand in the way of a good settlement offer.  Also, this is why I will speak to your medical providers and negotiate a reduction with them for any amounts not covered by your insurance. If I can get a medical provider to accept less, it means more money in your pocket and a greater chance I will not have to reduce my fee.

Back to Top

4. What if I don’t think I am hurt?

Please feel free to call me anyway. I am happy to tell you what your rights are. However, please understand this: A personal injury claim lives and dies on whatever information is contained in your medical records. As a result, I am going to tell you to get checked out by your doctor.  Why?  Because the hardest cases I deal with are when someone was in an automobile accident and didn't seek medical treatment until 45 days after the car wreck. Very simply, it looks like you were not hurting for those 45 days.  As a result, I always tell my clients that they should do the exact same thing, in regard to medical treatment, that they would do if the car crash had been their fault.  Do what you would normally do to take care of yourself with the understanding that your complaints of pain have to be documented in your medical records.  Further, if several weeks from now you continue to not have any medical issues from the car from the automobile accident, GREAT! However, let’s make sure we cover all bases now in case problems develop in the future.

Back to Top

5. I am currently represented by another attorney but, I can never get hold of him. Should I fire my attorney?

Unfortunately, I get this call a lot and since you are represented by another attorney, the ethical rules I am bound by will not let me give you legal advice.  However, I would suggest you contact that attorney and tell him you want to sit down with him and go through your file with him for 30 minutes. Why wouldn’t you take this step? If he/she is handling your personal injury claim on a contingency fee, as most personal injury attorneys do, the meeting is not going to cost you any extra money in attorney’s fees. Moreover, if I am going to pay a lawyer thousands in a legal fee, you can be sure that they will take the time to answer my questions about their handling of the injury claim.  If he/she is unwilling to take this step, you are entitled to a copy of your file, but your former attorney is allowed to assert a lien for his/her attorney’s fees.  As your new attorney, it is my job to try and negotiate with them in regard to this attorney's lien.  While legally you could get stuck owing two attorney's fees in this scenario, I have never had that happen in the 20 years I have been practing law.  Further, I would try to avoid that and if necesary, I would walk away from the majority of my fee.  I am happy to meet with you and review your injury claim with you to see what your options are.

Back to Top

6. Am I going to deal with you, another attorney or a paralegal?

You will be dealing directly with me. I give out my cell phone number, (502) 609-7657, for a reason. I want you to be able to get hold of me. While you may catch me in the car or out with my kids, I will do my best to answer your call. Some clients like to text or e-mail me.  It does not make a difference how you get hold of me.  You can call me in the evenings or on the weekends. I have found that my clients tend to be appreciative of the ability to get hold of me when they need to and are usually considerate of not overly interfering with my time with my children.

Back to Top

7. I have been in a motor vehicle accident. Should I go to a doctor?

If you have been injured in a motor vehicle accident, you should see a doctor right away. What I have seen is that the pain from most motor vehicle accidents tends to increase over the days following the car crash.  Get checked out and make sure that you did not suffer an injury more serious than you originally thought. Also, I mentioned above that your injury case lives and dies on the content of your medical records.  That first doctor's visit documents the fact that you were experiencing pain from the car wreck.  If thirty days from now the pain is gone and you decide not pursue a personal injury claim, fine.  However, if thirty days from the car wreck you are still experiencing pain and decide further treatment is necessary, it does not look like you were not hurting for the past thirty days or create the impression that something else must have happened since the car wreck to cause you pain.

Back to Top

8. Do I have to go to court if I want to recover monetary damages?

There are really two phases to the handling of any personal injury claim. The first phase is called pre-litigation.  In this phase, an injury attorney should be encouraging you to get the medical treatment you need, making sure your medical bills are being paid and gathering the evidence he/she will need if this injury claim results in a lawsuit.  At the end of the pre-litigation stage, all your medical records and bills are collected and forwarded to the liability carrier with a settlement demand. The liability carrier reviews the material and comes back with a first offer. I then discuss the settlement offers with my client and we decide if we these settlement negotiations can result in a reasonable settlement offer he/she would want to accept.  If so, we negotiate a settled amount with the liability carrier.  Usually withing two weeks of that acceptance, I meet with my client to execute a release and distribute the proceeds of the settlement to him or her.

The second phase of a personal injury claim is instituting a lawsuit or beginning litigation.  This is usually only required when the first phase, pre-litigation negotiations, was not successful. The problem with litigation is that it is costly and time consuming.  Your ultimate goal is to present your case to a jury and you can bet that defense counsel will not let that happen without knowing all the facts concerning the car accident and/or your medical history.  Litigation starts wtih the filing of a Complaint to which the defendants file an Answer. After that, both parties usually serve written discovery, typically Interrogatories and Request for Production of Documents, on each other.  Once the answers to these discovery requests are finalized, both parties will then usually schedule depositions. Depositions are where a court reporter takes a statement under oath and your answers are recorded by writing or video.  They can last anywhere from several hours to several days depending upon the complexity of the case.  And yes, they can ask you about your medical and employment history long before the accident occurred.  After the depositions are complete, the parties will usually discuss the possibility of a mediation.  A mediation is basically a settlement conference facilitated by a retired judge or an independent lawyer. If mediation fails, the parties usually start preparing the case for trial which includes the taking of the depositions of your doctors.

As you can tell, litigation is a long, involved process and there is nothing Perry Mason like at a trial.   As lawyers, we don't ask questions in front of a jury that we don't already know the answer to!

 

Back to Top

9. If the accident was my fault, can I still recover compensation?

 I answered such a question on Avvo.com as well, http://www.avvo.com/legal-answers/the-guy-was-driving-down-the-wrong-way-on-a-one-wa-1430489.html#answer_2985833.  What you have to understand is the fact that comparative fault is at play here. Comparative fault in essence refers to the fact that the percentage of fault between drivers can be divided in a hundred different ways as long as it adds up to a combined 100%. Indiana is a modified comparative fault state which means you can't be equal to or more at fault (50% or above) than the other driver or no recovery is allowed on the claim. In contrast, Kentucky is pure comparative fault which means you could be found 99% at fault for an accident and still recover 1% of your damages.

So the first question is were you actually 100% at fault in causing the accident and if so, what standard does your jurisdiction have about comparative fault? The other thought is some kinds of coverage do not depend upon fault. In Kentucky, no-fault coverage will pay your medical bills and lost wages regardless of whose fault the accident was. This is what they mean when they say Kentucky is a no-fault state.  In Indiana, med-pay coverage will pay your medical bills even if the accident was not your fault.

Back to Top

10. How much is my personal injury case worth?

This is one of the most common questions I am asked.  I can tell you what it is not worth. It is not worth three times your medicals. This was a formula that existed years ago and no one uses it anymore. Also, don't believe the stories that your friends tell you wherein their neighbor was not hurt and they recovered $25,000 from the insurance company. Insurance companies are a pain to deal with but, they are not stupid or generous.

What a case is worth depends upon the a variety of factors: 1) severity of property damage; 2) facts of the accident; 3) insurance coverage available; 4) length of medical treatment; 5) type of medical treatment; 6) amount of the medical bills; 7) amount of lost wages; 8) is there a permanent impairment from the injury; 9) aggravating issues on the defendant such as him being drunk; 10) the insurance company we are dealing with and; 11) the severity of your injuries.  Please understand that this list is in no way exhaustive or the bible on determining the value of a claim. These are just some of the many things that a lawyer must consider when evaluating the worth of a personal injury claim.

On this issue, sorry but I won't give you the value of your claim when I first meet with you.  I may tell you what my hopes are but, you will not hear a guarantee out of me.  Why? I have listed houses with a realtor because they say they can get me the value I am looking for but invariably six months later they will tell me to reduce the asking price because the market changed.  I refuse to let that kind of procedure happen in my law practice. It would be very easy for me to promise my clients the moon only to say at the time of settlement, "Sorry, things changed."  I don't want someone treating me that way so I won't treat you that way. Instead, I will try to keep my expectations on the claim reasonable so you can as well.  This way, you are not taking on the hardships of a lawsuit just because you operating off a misconception as to the value of your injury claim.

Back to Top

11. How soon do I need to bring my legal claim against the other driver?

Every claim under the law has what is known as the Statute of Limitations. Once again, I discussed this issues in one of my answers on www.Avvo.Com. See also, http://www.avvo.com/attorneys/40203-ky-james-desmond-1950370.html,  The Statute of Limitations refers to the fact that if your injury claim is not filed with the proper before a set time, it is barred as if it never existed.  For automobile accidents in Indiana, the Indiana Statute of Limitations is 2 years from the date of accident and this deadline can not be extended. So if a suit is not filed on your personal injury claim, with the proper court, before this 2 year anniversary occurs, the claim is barred as if it never existed. The relevant statute should be Indiana Code Section 34-11-2-4.  In Kentucky, the Statute of Limitaions for most injury claims is one year. However, for motor vehicle accidents in Kentucky, the Statute of Limitations is two years from the date of the car crash.  The statute is KRS 304.39-230. See http://www.lrc.ky.gov/statutes/statute.aspx?id=30052. Now, if you took the time to read that statute, you would say that I did not give you the whole story about that statute and you would be correct.  In Kentucky, the Statute of Limitations for a car wreck is actually two years from the date of the automobile accident or two years from the date of the last no-fault payment, whichever is later.  Nevertheless, as a non-attorney, forget the part about extending the Statute of Limitations and play it safe.  Assume the Statute of Limitations for a motor vehicle accident is two years from the date of the car crash.  Let an experienced, legal counselor determine the actual Statute of Limitations for your injury claim.  It is not worth the risk to do otherwise because if you get it wrong, your injury claim, no matter how severe it may be, would be barred as if it never existed.

Back to Top

12. What if the insurance company offers me a check right away?

They are buying the risk that you may need future medical treatment. So let's say you accept this check and sign their release in exchange for $1,000.  Thirty days later you go to your doctor for knee pain and he says you tore your ACL so you need knee surgery.  At least in regard to your pain and suffering claim, you can not recover from the at-fault driver for your knee surgery.  Why? The law basically says in regard to contracts, caveat emptor, which is latin for buyer beware!  When you signed that release, you signed a contract.  So this is why I tell you not settle your personal injury claim immediately. Besides, go back to what I told you about the Statute of Limitations.  The Kentucky Statute of Limitations for motor vehicle accidents is contained in KRS 304.39-230 and the Indiana Statute of Limitations is contained in Indiana Code Section 34-11-2-4. Both give you two years from the date of the accident before the lawsuit has to be filed.  So before settling your injury claim, why not give yourself 90 to 180 days after the car wreck to see how you feel and whether any further treatment is necessary.  The only one trying to rush you into a settlement is the insurance company so it does not sound like they are acting in your best interests.

Before you accept anything — or sign anything — from an insurance company, be sure that you are aware of your legal rights and options. Accepting a check may mean that you are giving up your right to sue later on if you need extra medical care or you have to miss a lot of work. Consult an attorney before you negotiate with the insurance company.

Back to Top

13. What if the other driver, who caused the accident, has no insurance?

This is the one time in this site that I will say "Call me, Call me, Call me!"  This is actually a pretty complicated issued that I have seen other attorneys mess up.  I had a case once wherein the client went to one of these attorneys who advertises on televsion and after she was done treating, they told her there was nothing they could do as the at-fault driver was uninsured.  I had her claim settled within eight weeks of her walking into my office because they forgot to look for uninsured motorist coverage.

Even though your state may require all drivers to carry a certain level of auto insurance, that doesn’t mean that everyone follows the law. This is why some states require insurance companies to offer drivers uninsured coverage.  For example, in Kentucky, you have to specifically reject your uninsured motorist coverage in writing for the automobile insurance company not to have to provide it.  Uninsured motorist coverage means that your insurance company acts like they insure the uninsured driver. Your insurance company gives us the same hard time they would otherwise and they argue to us your injury claim is not worth a lot just as if you were not their insured.  However, if you make a recovery from your own company through uninsured motorist coverage, they sue the at-fault driver to recover the amounts they have paid to you. Basically, the risk that this uninsured driver had no assets to go against or to pay your medical bills got transferred to your insurance company.  

If you think you are dealing with an uninsured driver, call me. It is a really hard concept to adequately address in a website because the driver can have insurance coverage, the vehicle might be insured or the at-fault driver could have insurance coverage through his employer if he was on the job at the time of the accident.  My cell phone is 502-609-7657 and I can go through this analysis directly with you. And yes, I will take your case even if I think the other driver was uninsured.  Why? Because I will go through the procedures I know from experience to make sure he was truly uninsured and if I really can't find a way of recovering from him or your uninsured motorist coverage, my contract with you says you owe me nothing!

Back to Top

14. Are there parties other than the at-fault driver against whom I can take legal action?

If you have been injured in a motor vehicle accident, there may be parties other than the at-fault driver who share responsibility for what happened. If the accident occurred because the other driver was drunk, and a business served alcohol to the visibly intoxicated driver before the accident, your state’s dram shop law may allow you to hold the business liable.  However, this varies from state to state. If a defect in one of the autos caused or worsened the accident, the vehicle manufacturer may be responsible for the injuries that resulted. If a third party may have left debris in the road or caused one of the drivers involved in the accident to undertake a risky driving maneuver to avoid collision. Finally, if the owner of the car driven by the at-fault driver negligently allowed the driver to use the car, the owner may be liable, too.

Back to Top