A Personal Injury Glossery: Negligence, Insurance, and the Rest
Published to: comparative negligence, Contingent Fees, deliberate intent, disability, family coverage, fault, impairment, made whole rule, med pay, Mediation, medical malpractice, medical payments coverage, negligence, personal umbrella, Perspectives of a Small Town Lawyer, punitive damages, SSD, SSI, tortfeasor, UIM, UM, underinsured motorist coverage, uninsured motorist coverage
on January 24, 2018 9:43 pm
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25 Personal Injury Related Definitions
These are not “legal definitions”, nor is this legal advice, but it may come in very handy for you.
1. Negligence: a simple mistake. Travelling too fast, rolling through a stop sign, mistakenly turning head on into a “one way” street.
2. Tort: an injury one person does to another, sometimes as the result of negligence or gross negligence, and sometimes intentional. All are actionable, subject to comments below.
3. Tortfeasor: a person who or entity which commits a tort.
4. Comparative Fault”; in WV a person is barred from collecting damages from another party or entity if that person contributed to her/his fault by 50% or more. They are then limited in their complaint by the percentage of fault the other party committed. For example, if the claimant has 40% of the fault and a $100,000 claim, and the tortfeasor has 60%, his award should be $60,000.
5. Liability Coverage Limits: the most common example is auto insurance, which has State mandated limits of $25,000 per person and $50,000 per occurrence. This means that an individual injured by a negligent insured driver can collect a maximum of $25,000, but 2, 3, or even 5 injured persons are capped at $50,000. When their claims are over $50,000, a court will have to determine the apportionment unless the parties can agree. Other coverages can be $100,000-$300,000, $200,000-$600,000, or even higher if you have a “personal umbrella”.
6. Personal Umbrella: Think of “umbrella insurance coverage” as coverage that hovers over your other coverages in order to provide an extra level of protection. A condition of coverage is for you to carry robust limits in your underlying (auto, homeowners’) policies. In return, you can have an additional coverage of $1,000,000 or more. It is a great bargain for persons with assets to protect. For more information on such issues, search of my blog gets 18 “hits” for the term “umbrella”, http://hunterlawfirm.net/?s=umbrella.
7. Uninsured Motorist Coverage (U.M.): is insurance protection for you in case the person who injures you has no liability insurance. In WV uninsured motorist coverage is mandatory in limits of at least $25,000 per person and $50,000 per occurrence.
8. Underinsured Motorist Coverage (U.I.M.): is the same concept as “uninsured”; it permits you to file a claim, based on negligence and injury by “the other guy”, against your own insurance, without being penalized. You can waive U.M. coverage over $25,000/$50,000 and all U.I.M. coverage. Occasionally, we can get you the state minimum coverage if your insurance company failed to get a signed waiver from you.
Important Note: If you are a person with sufficient assets to protect or large enough conscience to want to have a “personal umbrella”, you should be make sure, in writing from your umbrella carrier that your umbrella is included in the limits of your UM and UIM coverages. Get this in writing; it can make the difference between financial security and financial disaster!
9. “Medical Payments”, “Family”, or “Med-Pay” coverage: This is coverage that pays for your or your passengers’ medical bills regardless of fault. It can be $5000, $25,000, or even $100,000! It is primary before your personal medical insurance, so you should have it in most cases.
10. Subrogation Claim: is a claim that your insurer has for reimbursement for payments made on your behalf for medical services or perhaps even for your paycheck. I think of “subrogation” as a synonym for “substitution” or “standing in your shoes”. It reflects “common sense” that the tortfeasor, and not an “innocent” insurer. should pay your medical bills.
11. Made Whole Rule: WV has a “made whole rule” that requires the subrogated entity to accept its pro-rata share of any settlement or judgment. It can’t collect its entire claim unless you are recovering your entire claim. Often a good attorney will negotiate the subrogation claim as part of the global negotiations, so the carrier and the client each get a fair proportion.
12. The Employment Retiree Income Security Act (1974), “E.R.I.S.A”: is a federal law that governs many retirement plans and medical insurance plans. It can be very difficult to negotiate with an E.R.I.S.A. plan representative. Likewise with Workers’ Compensation or military subrogation plans. Proceed with caution and the help of a good lawyer.
13. Wrongful Death Claim: West Virginia’s wrongful death statute allows recovery from an at fault “tortfeasor” for the death of a person. The claimants are beneficiaries defined by the statute, including dependent children, a spouse, parents, and certain other persons. Keys are the closeness of the relationship between the decedent and the survivor dependent, the income potential and life expectancy of the decedent, and the amount of pain and suffering the decedent endured.
14. Punitive Damages: are not tied to compensation such as lost wages, medical expenses, or impairment. There must be intentional or willful, wanton, and reckless behavior by the tortfeasor. Punitive Damages are designed to punish and deter future wrongdoing, particularly by a large entity. As in the “McDonald’s Coffee Case”, punitive damages may be effected by the assets of the tortfeasor. In that case the damages were based on a couple of days of McDonald’s “coffee profits”.
15. First Party Bad Faith: This is a claim by an insured against their own carrier for “bad faith settlement practices”. The claimant does not have to establish malice, or intentional wrong in order to recover compensation, damages for “aggravation and inconvenience”, and lawyers’ fees. The claimant needs only to “substantially prevail” in the prosecution of their claim to recover these items. But, in order to get “punitive damages”, the claimant must also prove “malice”, or intentional wrongdoing.
16. Third Party Bad Faith: is bad behavior by “the other guy’s” carrier. This cause of action no longer exists in WV, as our legislature outlawed it. You are limited now to a complaint through the WV State Insurance commission and possible “slap on the wrist” of the carrier.
17. Contingent Fees: personal injury litigation and claim processing can be very expensive; thus, the most common fee arrangement is a “contingent fee”. These fees may range from 10% – 40%. No fee is taken unless there is a recovery.
18. Litigation Costs: These costs include filing fees, acquisition of records, depositions, experts, travel, etc. Cost can be huge and the cost of the litigation must be considered in the evaluation of any settlement or the prospects for any law suit.
19. Mediation: This is a form of “alternate dispute resolution”. A search of my blog gets 92 “hits”: http://hunterlawfirm.net/?s=mediation . Mediation is supposed to be “non-adversarial”, but it can still be pretty intense. As a result, most people prefer experienced, innovative, and creative mediators, and most such mediators prefer to keep the disputants in separate rooms. Mediators are usually lawyers or retired judges but can be from other professions such as accounting or psychology or the ministry. The problem there of course is they are inclined to bring their own standards and values to mediation, not legal standards. That’s the time you should bring a lawyer, but, alas, often that’s when people don’t have a lawyer and give up their legal rights accidently.
20. Medical Malpractice: WV law permits recovery from medical providers who negligently deviate from “the standard of care”, with various strong limitations that have diminished medical malpractice claims in WV by ¾ in recent years.
21. “Deliberate Intent Claims”: are claims against an employer for industrial accidents and injuries that result from egregious behavior (“deliberate intent”) and clear violations of industry standards. These claims are over and above Workers’ Compensation claims, which are paid regardless of fault, at carefully circumscribed rates and standards.
22. Social Security Disability, and S.S.I (means tested) Disability Claims: are governed by federal law and do not depend on establishment of fault. They do require the claimant to be disabled from all forms of gainful employment available in the national economy.
23. “Whiplash”; this is a demeaning term used by those generally skeptical of hyper-flexion, hyper-extension injuries. The most common event causing “whiplash” is a rear end collision where the injured person’s body is driven forward by the seat back and the head, at the end of a slender stalk known as the cervical spine, bends sharply backward before being slung violent forward. The injury is often to the “soft tissue” tendons and muscles what have microscopic or larger tears, and disks or bursa that can bulge or herniate with painful results as they put pressure on radiating nerves. Because such pain is invisible to an observer, insurance carriers often make a huge effort to discredit such claimants, and a relatively few claimants may exaggerate such claims. From my experience, such injuries often result in utter misery, while a good clean break of a bone heals relatively rapidly with little permanency.
24. Impairment or Disability: Impairment is the percentage impact on functionality; disability is the application of that impairment to what the claimant is able to do by education, training, experience, and age. Evaluating impairment and disability requires medical experts, vocational experts, and forensic accountants. It is complicated stuff, but not “rocket science”.
25. Frivolous or Junk Lawsuit: This term was defined and refined by President George W. Bush’s “meme maker” Carl Rove. I sometimes thought that President Bush thought that every claim ever filed that would require an insurance company or large business institution such as GM to pay a claim was “frivolous” or “junk”. Here is my blog search for frivolous: http://hunterlawfirm.net/?s=Frivolous
Folks, this is the tip of the iceberg in a complicated subject, but I hope it was some use to you.
Follow the links to the searches I have posted above or just go to my website, www.hunterlawfirm.net. I have written hundreds of articles over 8 years, all of which you can find with a simple “search”. Please provide feedback or “Contact” me with your questions.
J. Burton Hunter III
This post was written by Burton Hunter