Dear Personal Injury Client: Points to Remember
Published to: 000115, 000116, 000117, A Small Town Lawyer's Perspective, Perspectives of a Small Town Lawyer, West Virginia Lawyer - Tips and Techniques
on July 31, 2011 3:37 pm
(Note: Feb. 10, 2012. J.B.H. This is straightforward, bread and butter, stuff that every one of us should have, since EVERYONE is a potential personal injury claimant. And if not you, a loved one will surely need this.)
Typically, during our first interview or two, I learn a lot about your claim and injuries, and I tell you a great deal about the “rules” and the law. When you get home, however, most of what I told you is a blur, so here are the key things you should remember.
1. If you are my client, I already learned you have a serious injury and it appears to be the result of the “negligence” of someone else. That is, they broke a rule or a law, either intentionally, by speeding or texting and driving, or just not paying attention.
2. Injuries and fault mean nothing without the tortfeasor’s ability to pay. I have never gone after a tortfeasor’s house or car, and most clients don’t have the stomach for that anyway.
3. That means we must find some insurance coverage. If you get hit by a Fed Ex or Wal-Mart truck, that’s not much of a problem, but if you get hit by the proverbial teen-aged punk or little old lady who forgot to pay her insurance premium, you may have BIG problems ON TOP OF YOUR INJURIES.
4. So, the analysis of your auto insurance, home-owners, medical coverage, or “personal umbrella” becomes essential.
a. Med Pay, or family coverage, is the coverage you should have on your own auto policy to provide $5000-$25,000 of coverage per person for immediate medical bills REGARDLESS OF WHO IS AT FAULT. This means, even if YOU caused your injuries, this coverage kicks in BEFORE your medical insurance needs to be used.
b. When you settle with the tortfeasor, you have to pay all or part of this back, since your carrier stands in your shoes here and has a SUBROGATION CLAIM. Where one company covered both sides, we sometimes can get the subrogation claim waived, but that’s too iffy to discuss here.
c. If the person who hit you has little or no liability coverage, they may be facing criminal charges, BUT you must pray that the “full coverage” you thought you had protects you with:
1. Uninsured Motorist coverage (U.M.).
2. Underinsured Motorist coverage (U.I.M.)
3. A “personal umbrella”, usually at least $1,000,000, which hovers over all of your other coverages. (Note with this; you can have an umbrella with holes! I actually had a case where the agent wrote to his clients to talk them into getting an umbrella, convinced them, but failed to provide them U.I.M.! It turns out that in WV he HAD to, so they got the coverage, but YOU cannot risk having that good fortune.
6. Of course, most of you are reading this AFTER your collision, so we will do the very best for you that we can. We will leave no stone unturned. If a child is injured, perhaps the child lives in TWO household (e.g. post-divorce) and perhaps we can stack or combine coverages.
7. Even the State of WV carries liability insurance for some situations: a. State Cars, b. School Buses; c. Premises Liability. In those instances we deal with a State Board of Risk in trying to settle your claim.
8. It is possible you were injured by the combined mistakes of two or more entities/people. A good example is the person on her cell phone who follows you too closely. If you have to break for a light or darting child, she may slam on the breaks and barely miss hitting you, only to have the poor “doofus” behind her “rear-end her” and drive her into you.
9. The police will ticket the “doofus” but not the person who caused the wreck since she managed to stop. I bring the claim against both drivers, neither of whom followed the fundamental rule of leaving plenty of space and staying alert. Their breaking of the rules combined to mess up you back, and your life, and maybe injured your loved one! Of course their insurance will pay. Or, you could have a situation similar to one of my pending cases where my client was injured by the combined mistakes of TWO DRUNK DRIVERS! That doesn’t happen often, but it gives me an edge in negotiations when it does.
10. AND REMEMBER: We have given you forms to fill out. Please fill them out conscientiously. I had two clients who were poster children for what NOT to do:
a. The gal forgot to tell me that a chiropractor treated her for an injury at the exact place of the new injury FIVE YEARS BEFORE. She lied about it during discovery, and I caught it the morning of jury selections. We salvaged a fair settlement, but no thanks to her. She failed to realize that I can turn a pre-existing injury into an asset IF I KNOW ABOUT IT. Any reasonable juror or adjustor knows a body part previously injured is more susceptible to re-injury. It is called exacerbation!
b. The guy had a frozen hip from a “t.b. infection” when he was 13. I think they call it sepsis. He worked as a barber for over 30 years. He was hit on the driver’s side door by someone running a stop sign, and his career ended because the hip joint was freed up to move “bone on bone”; ouch! The claim was worth at least $100,000, UNTIL the defense lawyer called to tell me that fellows Social Security Disability file contained an affidavit from my client swearing he had sustained “no serious physical injury during the last five years”. Aghhhh! I called the fellow, and he sheepishly explained that he felt he had to lie, or not get his disability award. He cost himself $80,000!
11. SO MAKE SURE WE HAVE ALL THE FACTS, WITHOUT OMISSIONS OR LIES. All your injuries, your bills (bring them in AS YOU GET THEM!), your lost wages, your benefits, your expenses!
12. There are two tools we use to good effect:
a. Your diary. This is a journal that you or your spouse maintain. Short entries, but specific; about your missed trip to Kennywood Park, your inability to hold your grandchild, the pain of intimacy and impact on your relationship. NEVER exaggerate. Read my blog article on tips about SOCIAL MEDIA. Your posts to Facebook can kill your personal injury claim (or your divorce or other case.)
b. One client’s journal contained such an angry rant that I had to meet with him and tell him any jury who read it would find him angry, petulant, and nasty. He broke down into tears and admitted that he agreed. Turns out he had come back from a very serious workers comp injury and the new injury had caused him to feel overwhelmed and helpless. A forensic psychological evaluation revealed a classic case of post-traumatic stress disorder which enhanced the value of the claim and led to successful treatment of the P.T.S.D.; SO, communicate effectively using a well written journal.
c. We utilize lay witness letters. That is, we do a letter that you circulate to friends and relatives asking them to write a letter tell us of their observations of you before and after your injury. We provide a self-addressed, stamped, envelope, and ask the author to give name, address, occupation, relationship to you and what they have observed. These letters are often outpourings of love and concern. They are helpful to document the claim and are even therapeutic.
13. If you have stayed with me this far, I have some final advice;
a. Read this again, and several times during this process.
b. Stay in touch, with my paralegal and me. Bring us your diary as you write it, call with questions, let us know when you are going to the doctor, getting therapy, or scheduled for surgery.
14. Our goal for your case is to get you a fair recovery, help you rebound, and help you and our family position yourselves for the rest of your lives.
Your Lawyer and His Staff.
This post was written by Burton Hunter