You have just left your house and are heading to work. You are thinking about all the things you need to get done that day. You have just stopped at a red light when, suddenly, something slams in the back of your vehicle. When you wake up, you are lying on a stretcher with paramedics around you. What just happened?
Whether you are involved in a relatively minor accident or a more serious one, there are several important things that you can do to protect yourself legally and to preserve evidence for a potential claim.
After the accident – Preserving evidence
Immediately after an accident, assuming you can move, it is usually a good idea to get out of your vehicle and get away from the road, in case additional oncoming vehicles hit one of the vehicles involved in the accident. Call 911 right away and see if the other driver needs assistance. Take as many pictures of the vehicles and the accident scene as possible. When the police arrive, tell them what you remember about what happened. They will investigate the accident and prepare a police report that provides important information that can be used later. Click here to find out how to get a copy of the accident report prepared by the police.
Remember that everything you say to the other driver and to the investigating officer can be used as evidence against you if you were to bring a claim for personal injuries. This includes how you remember the accident happened and whether you are injured. This doesn’t mean you should not say anything (especially to the police), but just remember that what you say can and will be used against you.
Am I injured?
If you are injured, it is important that you seek medical treatment immediately. Especially if you have suffered a soft tissue or “whip lash” injury, very often people do not feel pain immediately after the accident. This is because the adrenaline released immediately following the accident will mask these symptoms.
If an ambulance is called to the accident scene, you will be given the option to go to the emergency room via ambulance. Obviously if you are seriously injured they will automatically take you. If you have non life-threatening injuries, you can either take an ambulance or, depending on how badly your vehicle is damaged, drive yourself or have someone else drive you. When in doubt, it is always important to get checked out by a doctor to make sure you receive treatment for your injuries.
A word about insurance.
Regardless of who is at fault for the accident, it is important to get the name of the insurance carrier for the other driver, as well as their insurance policy number. This information should be on the police accident report. If the accident is the fault of the other driver, you will need to call their insurance company to make a claim. At a minimum you will want them to pay for the damage to your vehicle, potentially a rental car, and for any personal injuries you have sustained.
You should also contact your own insurance carrier to notify them of the accident. If you have “med pay” coverage on your policy, you will be able to use that money immediately to pay for any initial medical bills resulting from the accident.
The insurance company for the at-fault driver will pay for your property damage and personal injuries up to the limits of the insurance policy. If your damages are in excess of the at-fault driver’s insurance policy limit, you may be able to make a claim against your own “underinsured motorist” policy.
For more information about the role insurance companies play in resolving personal injury claims, click here.
What if the other driver has no insurance?
Tragically many people are driving around today without liability insurance. This means that, when they are involved in an accident that is their fault, there will be no insurance company to pay for your loss. Fortunately, if you have adequate “Uninsured Motorist” insurance coverage, you will able to make a claim with your own insurance company to pay for the damage to your vehicle, as well as any personal injuries you sustain.
In addition, under N.C. Gen. Stat. § 20-279.1, et seq., the at-fault driver who does not have liability insurance can, in some instances, have their license suspended until the money paid on your behalf is reimbursed in full.
Should I talk to the insurance company about the accident and my injuries?
When you notify the insurance company about the accident, they will conduct their own investigation to determine who they believe is at fault for the accident and to determine the extent of your injuries. They will often ask to take a telephoned recorded statement of their conversation with you.
You need to be very careful about what you tell the insurance company. Know that everything you tell them can be used as evidence against you should you later decide to pursue legal action against the at-fault driver. Not only are they going to try to get you to say something about how the accident was (at least in part) your fault, but they are also going to try to get you to minimize your injuries. That is why I typically suggest that people refuse to give recorded statements to the insurance companies. If you decide to give a recorded statement, I suggest having your attorney with you to make sure your interests are protected. Remember, the insurance company for the at-fault driver is not your friend. It is their goal to protect their insured, not you. You need someone on your side to protect your interest.
Should I give the insurance company my photographs and medical records?
The insurance company may also ask for copies of any photographs you have taken of the accident scene, your vehicle, and your medical records. They may also ask you to sign an authorization allowing them complete access to all your medical records. You should be careful about allowing the insurance company complete access to your medical records. While they would be entitled to certain records in the context of a lawsuit, you do not need to give them unlimited access to all your medical records.
The insurance companies routinely review your pre-accident medical records to see if you ever complained to your doctor of similar symptoms as the injuries you are claiming were caused by the accident. They are doing this to try to prove that the accident was not the cause of your injuries. While they may be entitled to verify your claims, drawing conclusions from pre-accident medical records can be very misleading. I recommend you be careful about what you give the insurance company. When in doubt, ask a lawyer.
How do they decide who is legally at fault for the accident?
The insurance company for the at-fault driver will conduct an investigation of the accident and determine who they believe is at fault. Remember that, just because they say you are at fault for the accident, this does not mean that you cannot recover against the at-fault driver. It does mean, however, that you will probably need to talk about your claim with a lawyer so they can assess whether you have a valid legal claim.
North Carolina law requires everyone to use ordinary care when driving. “Negligence” simply means a failure to practice ordinary care. This could be as simple as taking your eyes off the road to send a text message while driving and rear-ending the vehicle in front of you.
North Carolina is known as a “pure contributory negligent” state. This means that, if you were also negligent and your negligence contributed to the cause of the accident, you cannot hold the other driver legally responsible for the accident. This rule causes many injured motorists with otherwise valid legal claims to be unable to recover anything for their injuries.
In some instances there are legal ways to get around a contributory negligence problem with something called an “ameliorating doctrine.” One of the most common is called the doctrine of last clear chance. This means that you can still recover for your injuries against the at-fault driver if you can establish that the at-fault driver had the last clear chance to avoid the accident, despite your own negligence. This is a very fact-specific inquiry, and you should speak to an attorney about whether this would be an option for your case.
Most claims are denied by the insurance company because they have either determined that their insured is not at fault for the accident, or that you are also at fault for the accident. In either event, if your claim is denied you will need to speak with an attorney about your legal options. There are time limitations to bringing legal claims, so it is important to speak to an attorney as soon as possible.
How much is my claim worth?
Once again, North Carolina law determines what damages you are legally entitled to. Your total claim value will be determined by assessing the following:
1. Past Medical Bills. You will be compensated for the amount of medical bills you have incurred for treatment for injuries caused by the accident. Under North Carolina law, this is the amount paid by you or on your behalf by a third party such as health insurance, Medicare, Medicaid, etc. Under a recently enacted law, you can only count the amounts paid, not the amounts billed by the medical provider.
2. Future Medical Expenses. If your doctor has determined that you have suffered a permanent injury as a result of the accident, you will also be able to claim the cost of future medical expenses. This can include medications, massage and physical therapy, or even in some circumstances in home therapy.
3. Out of pocket expenses. This can include mileage at the federal rate to and from doctor’s appointments.
4. Wage Loss. If you have to take time off of work, either because your injuries make you unable to work, or you are attending doctor’s appointments, you can also calculate the amount of your lost wages and include that amount as part of your claim.
5. Pain and suffering, scarring and disfigurement. All of the above categories are fairly easy to calculate. The remaining category is more difficult. This is essentially determined by guessing what you think an average jury in the county where the lawsuit would be filed would award for the “pain and suffering” you have experienced as a result of the accident. In addition, if you have been scarred, disfigured, or suffered an amputation from the accident, the jury can also consider an appropriate dollar amount to award you to compensate you for that. In order to arrive an appropriate range for this category of damages, I recommend you speak with an attorney familiar with the range typically awarded by juries in the county in which the lawsuit would be filed.
While there are other damages that could be considered in the appropriate case, these are the main categories used to negotiate settlement with the insurance company.
How to I negotiate my claim with the insurance company?
Once you have an understanding of all of your damages, you can make an appropriate demand on the insurance company. Typically you will need to support your claim with copies of your pertinent medical records and bills, a statement from your employer concerning any wage loss, and any receipts or mileage logs for out of pocket expenses.
Settling an injury claim with an insurance company can be frustrating. Remember their goal is to settle the claim for as little as possible. They are therefore going to start the negotiations with the lowest possible amount. After you fully understand the value of your claim and have determined an acceptable settlement range, you need to decide how low you want to go in the negotiations.
Understand that, once you tell them an acceptable number, it will be very difficult to get them to agree to pay more than that later on if settlement negotiations fail. If you have any doubt about an appropriate settlement range, you should speak to an attorney.
What happens if I cannot settle my claim with the insurance company?
If the insurance company refuses to negotiate your claim, either because they do not think their insured is legally responsible, or because they refuse to pay you what you think your case is worth, your only recourse is to file a lawsuit against the at-fault driver. You will need to speak with an attorney about this process, because there are a number of techniques the lawyers for the insurance company can utilize to get a lawsuit thrown out of court.
How long do I have to file a lawsuit for personal injuries?
In general, under North Carolina law you have three years from the date of the accident to file a lawsuit against the parties responsible for the accident. If you fail to bring your lawsuit within those three years, you will be forever barred from filing a lawsuit against the responsible parties, regardless of how injured you are.
Not only do you have to file the lawsuit within three years, but you have to correctly identify the parties involved, and have the lawsuit served on the responsible parties in the correct way. For instance, if the vehicle was owned by someone other than the driver, you may need to also name the owner of the vehicle as a party to the lawsuit. The lawyers hired by the insurance companies are trained to look for any technical legal defects in your lawsuit or in the service of the lawsuit to see if they have a basis to throw the lawsuit out of court.
If you have any questions, please feel free to contact us.