May 18, 2011
There are a TON of misconceptions when it comes to lawsuits. Car accident lawsuits are no exception. Here’s a few I’ve gotten lately:
“The at fault driver’s insurance company paid for my car. That means that they’ve accepted liability.”
It’s seems counterintuitive, but the insurance company may decide to fight your case on liability – even if they’ve already repaired your car (or paid for it if it was totaled).
Why would they do this?
- If your car is totaled, you will likely be racking up rental car expenses. If the other driver is held liable, and the expenses were reasonable, the insurance company would be on the hook for these.
- You can get attorney’s fees awarded in property damage cases.
- It’s a business decision for the insurance company.
“Well, the jury will be able to easily decide liability once they find out how much the insurance company paid for my car.”
That would be true if the jury is allowed to know if there is insurance in the case. In most cases under Oklahoma law, juries are not allowed to know if a defendant has insurance.
This can obviously make things frustrating for jurors. There are car accident cases tried before a jury that are limited to damages only (basically the insurance company values the claim lower than what the plaintiff does). In this case, liability is not an issue. In cases like this it’s common for the property damage to have already been settled.
If you like to read our state statutes, take a look at 36 O.S. §6091 and 12 O.S. §2411:
No settlement made under a motor vehicle liability insurance policy of a claim against any insured thereunder arising from any accident or other event insured against shall be construed as an admission of liability by the insured, or the insurer’s recognition of such liability, with respect to any other claim arising from the same accident or event and no testimony with respect to such settlement shall be admissible in evidence with respect to any other such claim.
Evidence of the existence of liability insurance is not admissible upon the issue of negligence or wrongful action. This section does not require the exclusion of evidence of liability insurance where the question of possession of liability insurance is itself an element of the action, or when offered for another purpose, including proof of agency, ownership, control, bias or prejudice of a witness.
Guess what happens if the jury asks if the car has been repaired or if the driver has car insurance?
They aren’t allowed to know. They are instructed to look at the issue (damages). In reality, nearly all car accident cases involve car insurance. The defense lawyers (and their medical experts) are all paid by the insurance company on the case.
What happens if the jury asks if the plaintiff has health insurance?
They still won’t get to know. A lot of people don’t want to give a plaintiff “double the amount.” BUT, if a personal injury plaintiff’s medical bills have been paid by their health insurance company, and he/she gets a settlement or verdict, those payments will generally need to be repaid to the health insurance company.
May 13, 2011
Jonathan D. Glater at The New York Times wrote an interesting article on a study comparing settling cases vs. going to trial. The study was based on 2,054 cases that went to trial from 2002 to 2005. The study looked at the dollar amount offered to settle vs. the outcome of the trial.
- According to the article, defendants made the wrong decision by going to trial in 24% of cases surveyed while plaintiffs were wrong in 61% of cases
- “On average, getting it wrong cost plaintiffs about $43,000; the total could be more because information on legal costs was not available in every case. For defendants, who were less often wrong about going to trial, the costs were much greater: $1.1 million”
- The findings suggest that lawyers may not be explaining the odds to their clients—or that clients are not listening to their lawyers”
- Concerning the lawyers, the study tried to account for factors like years of experience, rank of a lawyer’s law school and the size of the firm, but the most significant factor was the type of case. On the plaintiff’s side, contingency cases were the most common while the defense side errors were generally cases involving unavailable insurance coverage
My guess at the errors in judgment: That the parties made educated guesses and were willing to go to trial. But, the parties may have also gotten too involved in the case with an “all or nothing” approach.
From what I’ve seen, settling is the safest avenue for all parties involved (both the plaintiffs and the defendants). Obviously, that’s not always available. I like how settling puts both parties in the driver’s seat as opposed to letting a jury or judge decide your fate. The uncertainty of litigation for a client can be a determinative factor. Time constraints are another factor.
It’s interesting that the most common cases involved on the plaintiff’s side were contingency cases. The vast majority of our clients prefer us to work on a contingency basis. The client has already suffered a legal wrong, and putting the risks of litigation on the attorney spreads their risk.
May 12, 2011
Insurance companies and their lawyers use a variety of tactics to deny and limit recovery to personal injury victims. Here two main examples:
1) Comparative Negligence. This is where the defendant places part, or all, of the blame for the injury on the injured. Basically, the rule in Oklahoma is that a plaintiff may not recover if his/her negligence is greater than the negligence of the defendant(s). The exact language in the Oklahoma Statutes is:
In all actions hereafter brought, whether arising before or after the effective date of this act, for negligence resulting in personal injuries or wrongful death, or injury to property, contributory negligence shall not bar a recovery, unless any negligence of the person so injured, damaged or killed, is of greater degree than any negligence of the person, firm or corporation causing such damage, or unless any negligence of the person so injured, damaged or killed, is of greater degree than the combined negligence of any persons, firms or corporations causing such damage. (Emphasis added.) See 12 O.S. § 13.
2) Assumption of Risk. This can bar recovery for the plaintiff. It occurs when the plaintiff has expressly or impliedly assumed the risk. That is, it is generally used in situations where the plaintiff was involved in a risky activity
May 5, 2011
I’m behind on rent because I haven’t been able to work – I haven’t finished physical therapy. Can my lawyer loan me some money to pay my rent?
No. The ethics rules for Oklahoma lawyers on this issue is absolutely clear. Attorneys are not allowed to loan clients money.
The actual rule is Rule 1.8 of the Oklahoma Rules of Professional Conduct.
May 2, 2011
I have a serious injury from the car accident, do you think I should hire an attorney?
You probably should. I think most car accident claims don’t actually need an attorney, but serious accidents are another story. If you have high medical bills, and your missing a lot of work, chances are your claim will be high. An insurance company is more likely to fight a large claim. Their adjusters and attorneys will be working to “poke holes” in your case.
What will the insurance company look for?
You will likely see efforts to paint your injury as something that was “preexisting.” Basically, they will argue that any injury you sustained was already there, so they’re not responsible for it. I’ve seen their insurance doctors argue that the condition was “congenital.” Mind you, they will argue that it was “just a coincidence” that it happened after the accident.
They will also look for any contradictions you have throughout your treatment. Are you going to all of your physical therapy sessions?
Another argument I see all the time is that the car accident was “relatively minor.”