Even if a potential clients does not ask me, I almost always review with them their rights as an injured victim and what they can expect by making a personal injury claim.
If injured in a car accident, the injured person has two distinct claims – one for their property damage and another for their physical injuries. Presuming the at-fault driver has insurance, these two claims are paid from different provisions with an insurance policy and therefore, can be settled separate and independent of each other.
a) A property damage claim involves the repair of the vehicle if repairable or the fair market total loss value of the vehicle if not repairable. A repairable vehicle may still be deemed a total loss if the cost of repair closely approximates ore exceeds the fair market value of the vehicle. This usually involves older vehicles.
b) If a total loss, after essentially buying the vehicle from you for the fair market value, the adverse carrier will likely turn around and resell it for scrap. This is known as the salvage value. The owner may seek to retain salvage title to the vehicle and keep their vehicle if they desire. In such a case, they would get a salvage title from MVD and would be paid the fair market value minus the salvage value.
c) If the vehicle is a total loss but you were making payments on it, it is possible that the fair market value will not be enough to cover what you owe on it. The adverse carrier is only obligated to pay the vehicle’s fair market value, so if concerned, you may want to purchase GAP coverage when you finance your vehicle
d) You are theoretically entitled to a rental car while your vehicle is being repaired, or if a total loss, until you are made a total loss offer. If you have collision coverage, more than likely, it would extend to a rental so no need to purchase it from the rental company. However, if you did not have collision coverage, you will have to pay for such coverage out of your own pocket to get into a rental. The adverse carrier is only responsible for putting you in the same position you were in prior to the accident, so if you didn’t have collision coverage, they’re not obligated to provide you with it for a rental.
e) An alternative to a rental is called Loss of Use (LOU) compensation. This is essentially a daily stipend for each day you are prevented from using and enjoying your damaged vehicle, presuming you are not in a rental. LOU is usually measured by what it would cost to rent a replacement vehicle.
f) Finally, if your car is both repairable and fairly new, you may also have a diminished value claim after repairs are completed. This claim argues that your vehicle, although repaired, is now worth less than had it not been in the accident. While this makes perfect sense, how to measure thje amount of diminished value is hard, because in reality, it cannot be specifically calculated as to your vehicle until you attempt to sell it. Still, experts can be retained to calculate it based on real numbers.
a) I tell my clients that although their property damage claim may resolve sooner, their injury claim will not likely resolve until they are released from whatever accident related care they received. They are usually released in one of two conditions; either they’re restored to their pre-accident conditions or they reach a point of maximum medical improvement (MMI). MMI means a person might still have some residuals but there is nothing further that can be done for them from a medical perspective. The only time a case might settle before a client is released by their treating doctors is if there is insufficient coverage. If a person’s injury resulted from something other than a motor vehicle accident, they might only have a claim for bodily injury.
b) A good attorney will assist a client in procuring the medical care they need to recover from their injuries. This might mean treating through one’s health coverage or it might involve treating with a medical provider that will agree to wait for payment until the claim resolves. A good attorney can assist in procuring specialists as the needs arise.
c) A good attorney will monitor a client’s medical care to ensure that care by any given provider is not excessive. In the personal injury field, medical treatment is only deemed reasonable if it is designed (geared towards) improving one’s condition. Sometimes patients can max out the benefit derived from a given treatment, but it continues to provide some palliative relief (it feels good at the time of the treatment, but the relief fades within hours), so they keep treating. This may not yield any additional improvement in their overall condition and therefore, won’t necessarily help their injury claim. Some providers may not want to admit that they can’t cure the problem, and so they may continue to treat a patient instead of referring the patient for additional testing or a second opinion. A good attorney will monitor these facets of a case to ensure the best possible recovery for the client, both medically and in their injury claim.
d) When a client is released from medical care, I gather up their medical records, bills, and any other supporting documentation (such as police reports documentation of lost wages, etc), and prepare a settlement demand, which I review with my client before submitting it to the adverse adjuster. In so doing, I estimate a range of what I think the reasonable value of my client’s claim might be. That value range is based on a number of factors:
1) Severity of the impact, as determined by the speeds involved and the damage done to all involved vehicles.
2) Severity of the injuries (broken bones, surgeries, soft tissue, etc).
3) Type of treatment, duration of treatment, and cost of treatment.
4) Doctor’s prognosis upon release from active care. Will the patient need future care? If so, under what circumstances, what type of care, and at what cost?
5) Does the client have any short term, long term or permanent restrictions in terms of work or recreational activities?
6) What, if any, out of pocket expenses has the client incurred a s result of their injuries? This may include time missed from work, travel expenses, co-pays/deductibles, over the counter medication and/or devices (such as a cervical collar, ice pack, brace, etc)
7) What aggravation (pain & suffering) has the client suffered as a result of their injuries? What could they not do because of their injuries? For how long? What could they do, but with pain? How was their familial relationships affected? Did they suffer emotional/financial stress that was not treated medically, etc.
e) Without an attorney, an adverse insurance carrier will often try to negotiate a settlement of an injured person’s claim by paying them only their out of pocket medical expenses plus something for their pain & suffering. They may try to discount their offer by the amount of medical expenses already paid by some other resource such as health insurance or automobile medical payment coverage. Arizona has what is referred to as a Collateral Source Rule. Essentially, this means that the at-fault person is liable for the injured person’s full medical charges. The at-fault person (or their carrier) does not get reap any benefit should the injured party have had any collateral sources that paid some of their medical expenses. This is predicated on public policy, based on the premise that the injured party likely paid for that collateral resource (health insurance, medical payments coverage, etc), and so if anyone is to reap a benefit from such additional coverage it will be the person that paid for those additional coverage, not the person that caused the injuries.
In summary, an injured person has many rights, many of which are not known by the general public. However, a good personal injury attorney can help ensure that all of your rights are protected. Personal injury