LAWYER
INDIANA
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COM
Frequently
Asked Questions
Regarding Bodily Injury Claims
Category: How the Process Works
Information
Collection & Investigation
Any bodily or personal injury case begins with the necessary collection
of information and documents that are relevant to the claim. With regard
to liability for the accident, this would include the Official Accident
Report in an automobile or motorcycle accident case or, in other types
of accidents, any incident report that was generated. If liability may
be disputed, witnesses may need to be identified so that they may be interviewed
and their statements obtained. Obtaining the accident victim's medical
records and bills connected with treatment best proves injuries and damages.
If permanent impairment or injury has occurred as a result of the accident,
it may be necessary to interview the victim's doctor to document the nature
and extent of the disability or impairment. Additionally, when liability
is potentially complicated, it may be necessary to retain the services
of an expert in the relevant area, to provide assistance in building the
case and/or testimony in establishing the fault or defect. These are but
a few examples of some of the information and investigation that must
be marshaled by the attorney in order to properly build the accident victim's
case.
How
long does it take?
There are unfortunately too many factors that affect the length of a case
to be able to make any precise statement on the matter. These considerations
include the issue of whether 1) the defendant is contesting liability;
and 2) whether the defendant is contesting the nature and extent of the
claimed damages. Additionally, a major determinate in how long the claim
takes to proceed is how long the injury takes to heal or otherwise reach
a point of medical quiescence. For example, if the injury is requiring
continuing treatment, the value of the case may be increasing as that
treatment continues. As such, attempts at settlement while treatment is
ongoing are unwise given that the case would settle at less than its full
value. Another issue is the amount that the claim involves. Generally,
the larger the claim in terms of monetary value, the longer the process
can be expected to take.
Automobile
Accidents
Automobile accidents are of course the most prevalent kind of accident
in which people are involved. We operate our vehicles every day without
much consideration for the injuries that can result. After all, when a
vehicle is traveling down the road at 35 miles an hour, so too are the
occupants within that vehicle. Unfortunately, the insurance industry's
present posture is to defend and to litigate many automobile accident
claims that involve slighter impacts or what they call soft tissue injuries.
Given this present position, it is all the more important that the automobile
accident victim obtain competent legal representation as promptly as possible.
Slips
& Falls
Many people are unaware that falling is a major cause of serious bodily
injury. Often, property owners fail to take reasonable precautionary measures
to render their property safe for walking. Property owners such as grocery
stores and apartment complexes invite people upon their property in order
to generate income for their companies, and as such, clearly owe a common
law duty to make their property safe. They are obligated to repair defects
on the paths and walkways around their property, and to promptly remove
ice, snow and other hazardous weather conditions from these areas. Because
a slip and fall claim is quite factually sensitive, it is important that
the accident victim obtain competent legal representation promptly so
that a complete and thorough investigation of what occurred can be made
on a timely basis. When legal representation is not promptly retained,
it may be difficult to obtain proof of what occurred, such as photographs
and witness statements and the like.
Collisions
with Trucks
There are over 400,000 truck-related collisions in the United States annually,
causing approximately 100,000 injuries and 5,000 deaths. This is not at
all surprising when you consider that the average tractor-trailer is 60
to 75 feet long and weighs up to 80,000 lbs. The operations of trucking
companies are highly regulated by the Federal Motor Carrier Safety Regulations.
These regulations require trucking companies to maintain detailed records
of their trucking operations, records which may show violations of Federal
and State law, violations that may have even contributed to cause your
accident. For example, trucking companies must ensure 1) the weight and
length of their trucks meet Federal Regulations; 2) their truck brakes
are properly maintained; and that 3) their truck drivers do not exceed
work hour limitations. The trucking company's records may show that the
vehicle was too heavy, the braking system had not been recently inspected,
or the truck driver had been driving for too long that day. However, the
trucking company must maintain these records for only so long, and thus,
it is important that the investigation of a collision with a truck begin
promptly.
Motorcycle
Accidents
By law, automobile drivers are obligated to see that which is present
to be seen. Nevertheless, automobile drivers often fail to see motorcycles.
For that reason, statistics show that 7 out of 10 accidents that involve
a collision between a motorcycle and an automobile are the fault of the
automobile driver. Because motorcyclists sometimes receive serious injury
as a result of collisions with automobiles, it is very important that
every motorcyclist obtain uninsured motorist coverage, obtaining the highest
possible limits.
Uninsured motorist insurance coverage allows the injured person to make a claim against his or her own policy for the value of the claim when the person driving the other vehicle is uninsured. Furthermore, underinsured motorist coverage allows the motorcycle operator to make a claim against the policy when the other driver's liability insurance coverage is inadequate to cover the claim.
Motorcyclists sometime receive injuries that demand compensation in the hundreds of thousands of dollars. Automobile operators rarely carry liability coverage in that amount. In fact, most automobile operators carry liability coverage of $25,000.00 to $50,000.00. This is why it is so important that all motorcycle operators obtain uninsured and underinsured motorist coverage. It is not that expensive and it provides a lot of financial protection for the motorcycle operator.
The
Low Impact
The low impact defense is a defense used in automobile accident claims
and litigation. Over the last several years, several major automobile
insurance carriers have made a point of singling out automobile accident
claims that they label as low impacts and litigating and defending such
cases. A low impact collision is a collision that involves minimal to
no property damage; in other words, what is sometimes called a small fender-bender.
In truth, laws of physics do not support the proposition that the level
of bodily injury sustained in an accident should be consistent with the
level of property damage to the vehicles involved.
At the Indianapolis 500, race-cars sometimes hit the walls at incredible speeds, sustaining massive damage, and yet the driver walks away. These race-cars are built to disintegrate, and for good reason. Laws of physics prove that, when the race-car disintegrates, the race-car has absorbed the forces of the impact, thereby diminishing the energy otherwise available to cause bodily injury to the driver. For whatever reason, our automotive manufacturers have not followed this lead, building bigger and stronger bumpers. These bumpers limit the damage to your vehicle, but leave you at risk from the energy that has not been absorbed by the car. Bumpers do not absorb energy; they deflect it. In conclusion, while these arguments are available against the low impact defense, it is the task of the personal injury attorney to show that the collision was not in fact a low impact collision, so that the claim might be resolved in a fair and expeditious manner.
Delayed
Care
The delayed care defense is available to the insurance industry when the
accident victim is not promptly taken from the accident scene to the hospital,
or otherwise fails to report to a physician for prompt care within a reasonable
period after the accident. The insinuation that is not lost on many juries
is that, if the accident was that serious, the accident victim would have
sought medical care within a reasonable period of time after the accident.
What constitutes a reasonable delay in seeking medical care after an accident
is subject to some debate, and depends on the facts of each case. Needless
to say, an accident victim should promptly report to his or her physician
or to the emergency room for evaluation upon the first sign or indication
of injury.
Prior
Related Injury
The prior related injury defense may be available to the insurance industry
when the accident victim's medical history is positive for the same injury
or condition that forms the basis of the personal injury claim. For example,
if the accident victim claims that the collision caused a neck injury
with associated pain and discomfort, but that victim has a history of
prior neck complaints and neck and back treatment, the insurance representative
may question whether the claimed condition is truly related to the accident.
On the other hand, a well-understood maxum in the law is that the defendant
takes the accident victim as he finds him. For example, if the accident
victim's skull is particularly thin because of some pre-existing anomaly
or condition, and sustains a much more severe head injury during a collision
as a result, the defendant is responsible for the full measure of the
accident victim's losses. As you can probably see, these various points
of view make for some very contentious arguments in the presentation of
the accident victim's case.
Gaps
in Care
This defense is available to the insurance industry when there are large
or noticeable gaps in care in terms of time. Sometimes, the accident victim
will give up on treatment, and then many months later decide to give it
another try. This unfortunately gives the defense the opportunity to claim
that the later treatment may not be related to the accident at all. As
such, it is important that the accident victim maintain some continuity
in his or her care. If the accident victim continues to suffer from some
measure of discomfort, pain or dysfunction, he or she should report such
episodes to the family physician periodically.
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