November 29, 2010
Are we going to have to file a lawsuit for my car accident?
I had a new client ask: “Are we going to have to file a lawsuit for my car accident? I don’t want the stress of having to go to trial.”
Surprisingly (or not, depending on your view), most cases settle. Back in February ’09, I posted a statistic that “about 97 percent of civil cases are settled or dismissed without a trial.”
Mind you, this number doesn’t actually include the number of claims that are settled without a lawsuit actually being filed. A high percentage of car accident claims are settled before a lawsuit is filed. There’s even law firms and attorneys that will not file a lawsuit (trying cases is time consuming and demanding). If they can’t get the case settled pre-suit, they refer their clients to attorneys willing to try cases (like us!). I believe insurance companies facing attorneys that won’t “go the distance” will value those car accident claims much lower. Insurance companies track opposing attorneys, and likely know how much certain firms will settle for.
Here’s a typical time-line of a car accident case:
- Car Accident Occurs
- ER Visits, Diagnostics, Followup Treatments, etc.
- Property damage claim settled
- Once medical treatment is completed or max medical improvement is reached: Our demand packet (summary of your case and offer to settle with all documentation) is sent to the insurance company
- At this point, the insurance company will often offer to settle the personal injury claim for less than the case is “worth”
- Settlement negotiations continue with the insurance company. At this point the adjuster will eventually give their “final offer.” Some times this is reasonable, sometimes not.
- If the final settlement offer is unreasonable, and our client wants to keep going (some people want to “get it over with” even if the offer isn’t for the full value), we file a lawsuit.
- A lot of insurance companies will increase their settlement offer at this point – even if the facts of the case haven’t changed.
- We’ll have depositions and exchange discovery (interrogatories, etc.), and line up any doctors or experts needed.
- Settlement negotiations and preparations for trial continue.
- Sometimes we’ll have a mediation at this point to help get the case settled.
- If settlement talks fall through, the case goes to trial.
November 19, 2010
Where can this Oklahoma City car accident victim sue?
This is almost always a non-issue. After all, with I-35 running through our great state, accidents with motorists from out-of-state are bound to happen.
Example: Someone from Texas rear-ends you here in Oklahoma City. Where can you bring a case against this person, since he or she does not reside in Oklahoma? Do you have to go to Texas?
Fortunately not: In Oklahoma, “venue” in car accident cases is in the county where any defendant may be served or the accident (damages) occurred. This means that in our example, suit could be brought where the accident/injury occurred or where we can get service on the defendant.
November 18, 2010
“Health insurance paid for surgery caused by car accident”
What happens with my health insurance company when they pay for my surgery that was caused by a car accident that was not my fault? Will I get to keep my settlement?
If your car accident case settles (or there’s a court verdict) for damages, you’re insurance company will want to be reimbursed. This is called their right of subrogation. Note that you will still be able to keep the rest of the settlement for your pain and suffering and any lost income that’s included in the settlement.
November 17, 2010
Owing more on your car than it’s worth
It seems like several times a week I meet with someone that was just in a car accident and owes more on their car than it’s worth. Under Oklahoma law, the person who caused the accident does not have to pay what you owe on the car, but the fair market value of the car (assuming it was totaled). How can you help protect against this scenario, and avoid being stuck with car payments and no car to show for them?
Check out GAP Insurance.
Guaranteed Auto Protection (GAP) insurance pays the difference between the actual value of the car and the remaining balance on the loan. Assuming the premium isn’t too high, it’s worth considering adding to your policy.
November 16, 2010
“Why isn’t my auto accident injury case worth more?”
Personal injury attorneys are asked this all the time. I recently had a client, let’s call him Will, ask: “My back was killing me for several months, why isn’t my personal injury claim worth more?”
Here is some background on Will’s case. He was rear ended last year and was rushed to the hospital immediately after the accident. The seat he was in snapped back and Will thought that he had been knocked out. His neck and back were both hurting quite a bit. The emergency room ran up a pretty good bill because they did a CT scan. Will thought he had a concussion and was dazed.
Will checked out of the ER with soft tissue injuries, some prescriptions for a muscle relaxer, and some pain medicine. He was also instructed to go to a follow-up doctor if he was still having neck and back pain.
After missing work for a few days, Will decided he could “tough it out” and went back to work, but his neck and back still gave him trouble. He was in a lot of pain at work and around the house. Two months later, Will’s back is still bothering him, but he’s a tough man and doesn’t bother going to a doctor. Mind you, the ER doctor had instructed him to go a follow-up doctor if he was still hurting.
Will called me about seven months after the accident. His neck and back had finally healed and he was curious as to why the insurance company hadn’t called him and offered to settle his personal injury claim.
The case has since settled for a reasonable amount. At the time though, Will was a little frustrated because he wasn’t able to get compensated for any pain and suffering for the three months that his back was bothering him.
Moral of the story: Go to a doctor if you are hurt! If the pain lingers after initial treatment, don’t try to tough it out; go to the doctor for additional care until the injury is healed. Insurance companies, understandably, look at personal injury victim’s medical records closely for proof of an injury.
November 12, 2010
Under Oklahoma law, can an offer to settle be used against the opposing party in court?
Settlement offers are almost always a part of the litigation process. Sometimes settlement talks will fall through though. If this happens, can one party use the opposing party’s settlement offer as evidence to show that the party was at fault or did something wrong?
No. The Oklahoma Evidence Code clearly states that this is inadmissible. Check out the statute for the exact language: 12 O.S. § 2408. Note that the rule does not require the exclusion of evidence that would otherwise be discoverable simply because it occurred during settlement negotiations.
One of the main reasons for this rule is that it encourages settlement.
November 11, 2010
Do I have to pay my medical bills from my settlement?
Generally, yes.
The Oklahoma law on the issue (42 OS 43) states:
The Hospital Lien applies to the amount recovered “whether by judgment or by settlement or compromise.” The amount is limited to the “reasonable and necessary” charges.
The lien can’t be enforced on Uninsured Motorists benefits however. See Kratz v. Kratz, 1995 OK 63. The Court noted 42 OS 43 “Hospital Liens in Personal Injury Cases” and reasoned that a “personal injury” means a claim against a third part or their insurer.
42 OS 44 requires a notice of the lien to be filed in the office of the county clerk in the county in which the hospital is located. The notice must include:
- Itemized statement of amount
- Name and address of injured patient
- Date of accident
- Name and location of hospital
- Name of alleged liable party