In this article:
- Types of Insurances Coverage Available for Recovery In Colorado
- Statute of Limitations Timelines for Bringing Claims
- Maximizing Your Recovery when You Have Been Injured
If you have been injured in a motor vehicle collision due to the fault of another, it can be an overwhelming time. You are facing medical bills, medical appointments, and telephone calls from insurance company representatives, and at a time when you are injured. Your car may not be available, complicating even a simple trip to the store, and you are also likely continuing to deal with your obligations to family, work, or school.
When you have been injured due to the fault of another, your own insurance company has certain obligations, as discussed in this article. However, those do not include representing you in your injury claim or acting on your behalf in interactions with the bodily injury adjustor from the other driver’s insurance company. Your insurance company’s communication with the other driver’s insurance company will likely be limited to resolving responsibility for the property damage caused by the collision, leaving injury issues unresolved. In fact, the other driver’s insurance company and your own might be one and the same.
Making the decision to hire a personal injury attorney will not only help you with dealing with the immediate aftermath of a motor vehicle collision and maximizing your recovery, it will also provide you with an advocate who is able to explain a likely unfamiliar process and what to expect to you.
Categories of Damages that can be Recovered
A settlement or jury verdict for a personal injury claim can cover several categories of damages. See C.R.S. § 13-21-102.5(5). These categories include primarily three types of compensatory damages, for economic loss, non-economic loss, and physical impairment. See id.
Economic losses include medical bills, lost wages, and less commonly other items, such as loss of future wage earning capacity or costs of future medical treatment. Your economic damages should be covered by your personal injury settlement or jury verdict so long as they can be documented and can be demonstrated to be related to the incident in which you were injured. A skilled personal injury attorney will be able to help you identify and document your economic losses so that they can be included in your settlement demand. If your injuries are severe, expert opinion, such as from an economist to document your future wage loss or a doctor or life care planner to estimate your future medical treatment expenses, may be required, and a skilled personal injury attorney will be able to obtain such opinion. Additionally, under Colorado law the entire billed amount of your medical bills must generally be considered as an economic loss, even if your health insurer was able to pay reduced amounts in satisfaction of the bills. See, e.g., C.R.S. § 13-21-111.6.
Noneconomic losses include pain and suffering, loss of enjoyment of life, and similarly named categories. The major distinction between noneconomic losses and economic losses is that the dollar value of noneconomic losses cannot be directly documented. Additionally, under Colorado law noneconomic losses are subject to a cap on compensatory damages. See C.R.S. § 13-21-102.5. In practice, settlements and jury verdicts often include an estimated value of noneconomic losses based upon the amount of the economic losses, especially medical bills. However, a skilled personal injury attorney will be able to identify potential arguments, for example based upon the duration of your recovery period or the painfulness of your injuries, for why you should be awarded additional noneconomic damages. Additionally, a skilled personal injury attorney will be able to use indirect evidence, such as photographs or testimony by your friends and family, to demonstrate the severity of your noneconomic losses.
Physical impairment is a category of damages distinct from noneconomic losses, and covers temporary or permanent and full or partial loss of use of a body part. See C.R.S. § 13-21-102.5(5). Unlike noneconomic losses, physical impairment damages are not subject to a damages cap. See id. As with noneconomic losses, physical impairment damages may be estimated based upon your economic losses, particularly medical bills, however they will generally not be given absent specific evidence of impairment. A skilled personal injury attorney will be able to identify such evidence, including through the use of expert opinion, such as from a functional capacity examiner.
Beyond the above-referenced compensatory damages, certain other categories of damages may be awarded in certain cases.
Punitive damages may be sought where the defendant has done something particularly blameworthy, such as causing a motor vehicle collision while driving drunk. See C.R.S. § 13-21-102. A jury award for punitive damages may not exceed the corresponding monetary award for compensatory damages. See id. Additionally, these damages are often excluded by insurance policies, meaning that the defendant, rather than his or her insurance company, may be left paying the punitive damages award. However, a skilled personal injury attorney may be able to identify ways to use the threat of a punitive damages award to increase the settlement value of your personal injury claim.
Additionally, claims which may entitle you or your family to additional damages, such as for loss of consortium or intentional or negligent infliction of emotional distress, may exist in certain situations. Loss of consortium, for example, may be a claim that your spouse can assert if you have been seriously injured, and would entitle him or her to damages for loss of companionship and household services. A skilled personal injury attorney should be able to identify if additional claims on which a recovery may be sought may exist in your situation.
Insurance Coverage Available for Recovery
Property Damage Coverage
After a motor vehicle collision occurs, your insurance company will interact with the other driver’s insurance company for at least the limited purpose of determining responsibility for payment of property damage caused by the collision. This determination will affect which insurance company will be primarily responsible for payment of vehicle repairs and related expenses, including potentially payment for your rental car. Insurance companies have certain obligations in adjusting property damage claims, including to pay associated costs such as title fees, sales tax, and any other transfer or registration fees if a vehicle is determined to be a total loss. If the other driver’s insurance company is determined to be responsible for payment for your rental car, it is obligated to continue the payments until after either your vehicle has been repaired or, in the case of a total loss, paid for.
Additionally, if your vehicle has been determined to be a total loss, the responsible insurance company is required to base valuation on a credible source using a fair and consistent method. The insurance company is prohibited from using different credible sources to determine the lowest amount payable.
Insurance companies may use certain methods to minimize the payment on your property damage claim. For example, in valuing your vehicle they are allowed to consider “unique characteristics of a total loss vehicle, such as classic status, unique finishes, mileage and/or, special accessories.” Insurance companies may interpret this to allow deductions for minor scrapes and dents to older vehicles, despite tools such as the Kelley Blue Book already incorporating such factors in valuation at higher mileages. Another trick the insurance company may use in adjusting your property damage claim is to prematurely cease payment for your rental car based upon alleged delays caused by you and/or the body shop.
A personal injury attorney will be able to contact the insurance companies on your behalf and monitor their handling of your property damage claim. Assistance with the property damage claim is thus an early benefit of deciding to hire a personal injury attorney after being involved in a motor vehicle collision.
Medical Payments Coverage (“Medpay”)
In addition to payment for property damage, you will need to pursue benefits under any medical payments coverage after being injured in a motor vehicle collision. Medical payments coverage following a motor vehicle collision is a coverage available through your own insurance policy, regardless of who caused the collision. All insurance companies selling policies in Colorado must offer $5,000.00 or more in medical payments coverage to potential purchasers. If a consumer decides to not purchase medical payments coverage, the rejection must be in writing and must be maintained by the insurer. Thus, if your insurance company claims that you have rejected medical payments coverage, a personal injury attorney will be able to demand proof and to seek those benefits on your behalf if your insurance company is unable to provide proof of rejection.
Medical payments coverage is different from other motor vehicle insurance coverages for injuries, discussed below, in that it is available immediately for payment of medical bills on an ongoing basis. The purpose of medical payments coverage is to pay your immediate and ongoing medical bills, which is important if you either do not have health insurance or your health insurance refuses to pay. Your insurance company is required to provide covered medical payments benefits for “medically necessary and accident-related trauma care and medical care.”
Your insurance company has certain obligations when providing medical payments benefits. Your insurance company is required to pay the benefits promptly, within thirty or forty-five days of the submission of a “clean” claim. Your insurance company can be assessed with penalties, including payment of two times the claimed benefit and attorney’s fees, if it improperly delays or denies payment of a claim. However, your insurance company is not obligated to promptly pay a claim on which it requires additional information, for example to show that the bill in question was related to the motor vehicle collision. This creates the potential for your insurance company to dispute the reasonableness of medical bills for which you seek medpay coverage. A personal injury attorney can work with medical providers to generate responses to requests for additional information from your insurance company, and can also help determine whether the insurance company’s requests for additional information are reasonable. If not, the insurance company could face penalties including payment of two times the covered benefit and payment of your attorney’s fees.
One additional important note about medpay is that your insurance company is not permitted to seek to recover any medpay benefits it pays out of your recovery against the at fault driver. A personal injury attorney can work to ensure that your insurance company does not directly or indirectly seek such a recovery (called subrogation), and that you recover all medpay benefits in order to maximize your recovery.
Bodily Injury Coverage
Bodily injury coverage provides coverage for injuries caused by the insured individual to third parties. If you have been injured in a rear end or other motor vehicle collision due to the fault of another, you can recover the cost of your medical bills, lost wages, and other economic damages, as well as non-economic damages such as pain and suffering, from the other driver’s bodily injury coverage.
In Colorado, all drivers must carry certain minimums of bodily injury coverage on their insurance policies. Drivers must carry at least $25,000.00 of coverage per individual, up to a maximum of $50,000.00 per collision.
In contrast to the duties that your own insurance company owes to you when handling your medpay claim (or an uninsured/underinsured motorist claim, discussed below), the other driver’s insurance company owes you few duties in adjusting your claim for bodily injury coverage. In general, it is prohibited from acting unreasonably in investigating, defending, or settling your claim. However, Colorado courts have held that the insurance company’s duties in this “third party” context are owed to its own insured (i.e. the at fault driver), rather than you. The reasoning is that the other driver, not his or her insurance company, is the one who is responsible for your injuries, and if the insurance company fails to provide the coverage it owes to the other driver then the other driver is still responsible for paying you. However, the practical effect of this reasoning is that, if the other driver’s insurance company makes an unreasonably low settlement offer, your only recourse is to file a lawsuit against the other driver, in which case the insurance company would be obligated under the terms of its policy to defend the other driver. A personal injury attorney is able to prepare a lawsuit following an unreasonably low settlement offer from the other driver’s insurance carrier. Additionally, because the recourse for an unreasonably low settlement offer is to file a lawsuit, the other driver’s insurance policy is much more likely to make a reasonable settlement offer if you are represented by a personal injury attorney.
One additional note about bodily injury coverage is that the other driver’s insurance carrier will ask you to sign a settlement release prior to any payment of benefits. This document will release any and all claims you have against the other driver and his or her insurance company. Thus, bodily injury coverage is typically sought by sending a settlement demand, containing medical records, bills, and other documentation, to the insurance company once you have completed your medical treatment. A personal injury attorney is able to gather this documentation and prepare the settlement demand on your behalf, and also to work with you and provide advice regarding the appropriate time to submit a settlement demand. While these are typically sent following completion of your medical treatment, there may be reasons to send one beforehand (for example, if the other driver has a low bodily injury coverage limit, or a statute of limitations is approaching).
Uninsured and Underinsured Motorist Coverage (“UM/UIM”)
The final type of motor vehicle insurance coverage under which benefits are likely to be available is your own underinsured or uninsured motorist coverage. All insurance companies selling policies in Colorado must offer UM/UIM coverage at least equal to the provided bodily injury coverage. UM/UIM coverage, like medpay coverage, may be rejected, however the rejection must be in writing. As with bodily injury coverage, UM/UIM coverage will provide benefits for the cost of your medical bills, lost wages, and other economic damages, as well as non-economic damages such as pain and suffering, from the other driver’s bodily injury coverage.
Uninsured motorist benefits may be sought instead of bodily injury benefits if the at fault driver was uninsured. Underinsured motorist benefits may be sought if the at fault driver had insufficient bodily injury coverage, following a settlement with the other driver’s insurance company. As with bodily injury benefits, UM/UIM benefits are typically sought by sending a settlement demand containing medical records, bills, and other documentation to the insurance company, and a personal injury attorney is able to gather the documentation and work with and advise you regarding the appropriate time to submit such a demand.
Your insurance company owes similar duties in adjusting your UM/UIM claim as it does in adjusting a claim for medpay coverage. If your insurance company unreasonably delays or denies benefits, it may be responsible for payment of two times the claimed benefit in addition to your attorney’s fees. Additionally, your insurance company could become liable for a claim for bad faith breach of the insurance contract’s implied covenant of good faith and fair dealing, subjecting it to punitive damages. As with a medpay claim, a skilled personal injury attorney can work on your behalf to identify whether or not your insurance company’s conduct in adjusting your UM/UIM claim is reasonable.
Additionally, it should be noted that coverage will be available under many UM/UIM policies held by relatives who you live with, due to the language of the policies, even if you are not a named insured in the policies themselves. A skilled personal injury attorney can work with you to identify UM/UIM policies other than your own under which coverage may be available.
Other Ways to Maximize Your Recovery
Beyond locating and recovering under the available insurance coverages, a skilled personal injury attorney can work in other ways to maximize your recovery. These include knowing and applying Colorado’s common fund and made whole statutes, which can reduce or eliminate the ability of your health insurance company or other payer of benefits to recover benefits it has paid from your bodily injury or UM/UIM recovery. The made whole statute, in particular, can operate to bar subrogation by your health insurer if it fails to comply with a strict deadline following receipt of a notice, however certain information must be provided in the notice to trigger the deadline. A skilled personal injury attorney can also work to prevent the insurance companies from attempting to do things that will result in undervaluing of your claim, such as attempting to consider only amounts paid by your health insurer to medical providers instead of the entire billed amounts.
Statutes of Limitations and Other Concerns
In addition to assisting with recovering insurance money, a personal injury attorney can help you avoid potential pitfalls that could damage or destroy your claim. These include statutes of limitations, which generally require that a lawsuit against a third party for negligently injuring you in a motor vehicle collision be filed within three years of the date of the collision. However, shorter statutes of limitations may apply, for example an underinsured motorist lawsuit must generally be commenced within two years after receipt of payment of the settlement or judgment from the underinsured motorist’s bodily injury carrier. Moreover, if the at fault party is a governmental entity, including an employee working for a governmental entity, a statute requiring notice to the entity within six months of the date of the collision will likely apply. Thus, not only will consultation with a skilled personal injury help to maximize your recovery, but it will also protect and preserve your legal rights and ability to recover for your injuries.