Monday Myth Busters: Personal Injury- June 29, 2020

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By: Bill Henry
PublishedJul 6, 2020
11 minute read
Each week, personal injury attorney spends time educating the community about their personal injury options.
Monday Myth Busters is dedicated to answering your questions. See what Coloradans asked on June 29, 2020. (A transcript of the event is available below.)

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What happens if I’m partially at fault in the car accident?

One of the questions that I get sometimes is when somebody thinks that they might be partially at fault for the car crash, and they wonder if they still have a case. So the answer is possibly. In Colorado, if you are less than 50% at fault, you can still recover from the at fault driver. However, if you’re 25% at fault, you can only recover 75% of your damages. It is tricky because the insurance company if they sniff out a any way that you might be at fault are more than halfway at fault. They’re going to assess that on your case, and it’s gonna make it difficult for you to settle your claim.

Is there a time limit for the insurance company?

Okay, this question is from an email, how long can an insurance company drag their feet on a claim? Do they have a time limit? No, they do not have a time limit, you have a time limit. And so it’s in your best interest to provide the insurance company all the documentation as soon as you are done and ready to settle your case. So that you can try to negotiate a settlement before your statute of limitations expires. The statute of limitations in Colorado is three years that means that you have to either settle your case within three years from a car crash, or file a lawsuit. So it’s three years for a car crash, but it’s only two years for a slip and fall case. There are a few other deadlines that can be in play. So always consult with an attorney if you have concerns about that.

How do I know if i have a claim from my crash?

Next question I have is, how do I know if I even have a case for my car crash? So if you have an injury, you have an injury claim. It’s, you know you may not need an attorney, not everybody needs an attorney. But if you have an injury, you have a claim even if you haven’t had treatment yet, you should still at the insurance company know that you were injured and you do want to make an injury claim from this. The number one thing that you need to do if you’re injured is go get an evaluation as soon as possible. You don’t have to go to the emergency room if your case isn’t dire. There are plenty of other providers out there who can do comprehensive head to toe evaluations and have specialties for car crash victims. So if you have questions about that or would like some referrals, please let me know I can help with that. But if you are injured, yes, you have a claim and you may not need an attorney, but you should always consult with an attorney.

How quickly do I need to file a claim?

All right, so next question I have is from Steven from Littleton, how quickly do I need to file a claim if I was hurt in a car crash? Immediately, okay? So you need to let the insurance company know that you were injured, you likely are already dealing with the insurance company anyway, for your car crash damages, but they’re going to ask you Is everybody okay in the car, and you can say, what, no, I am experiencing this symptom and this symptom, and I’ve already had this treatment or I’m going to this doctor tomorrow or something. Other than that, you know they don’t need to know that much until you realize what your injuries are and what kind of treatment you might need for this. So how quickly to file claim file it immediately.

Can I hire an attorney after I tried to handle the settlement on my own?

So, our next question is also from an email. Can I hire an attorney if I have tried to handle the settlement on my own with the insurance company, but I don’t feel like I’m getting a fair deal? So this is a great time to have an assessment with an attorney, right? So every personal injury attorney that I know offers consultations. I am always happy to get the details of your car crash. Get the details of your injuries, get the details of your treatment, and think about what I would think would be a fair settlement. And then we can discuss how the insurance company has evaluated your claim and offer that they have made for you. And I will give you my honest opinion if i think that that is within the realm of reasonableness. And that is something that you could probably negotiate a few more times and settle on your own without having to retain an attorney. Or I will let the insurance company isn’t considering this, they’re not considering this. They’re not giving you fair value for this. And based on their initial offer to you, I don’t see how they are going to come up to a fair number for you. So I think at this point, you probably should get an attorney involved. So yes, you can always hire an attorney, even if you’ve started the process on your own.

Does the other party pay for my lawyer fees?

Next question is, does the other party pay for my lawyer fees and the settlement? How does that work if I get a lawyer? Probably a question that I always get, so no, the other driver does not pay for your attorney’s fees. In America, that is the way it works. If you are the party bringing a claim you are responsible for your own attorney’s fees, except in some other circumstances, either by statute or by contract. But in car crash cases when you are suing another person, that other person and their insurance company is not responsible for your attorney’s fees. So we have to take that into consideration when we’re reaching, when we’re negotiating the case. So the way I do attorney’s fees, and again, almost any personal injury attorney that I know the way we do attorney’s fees is the contingency fee basis. That means you don’t have to pay a retainer. You don’t have to pay an hourly fee. Your payment of our fees comes out of your settlement when we get to that point. And the way I do my fees is if we can settle the case without going into litigation, fees are one third of whatever that settlement is. If we have to file a lawsuit and go into litigation, obviously that’s more risk, a lot more time, more expense, and the fee goes up to 40% of whatever settlement happens after we file a lawsuit. And see the other part of the question is how does that work if I get a lawyer? So that is how I handle attorney’s fees and how most personal injury attorneys handle attorney’s fees.

How often do personal injury cases go to trial?

Next question here is from Amanda in Castle Rock, how often do personal injury cases go to trial? I just want to get what I’m entitled to and move on from this. That’s very good point, I hear that as well. So in my experience, in the history that I’ve been doing this and handling cases, only about 1% of car crash cases actually go to trial. And those cases that go to trial just mean that the gap between what the injured parties claim is worth and what the insurance company is willing to pay is still that great usually cases that go to trial, do so because the insurance company is refusing to consider a surgery recommendation, or refusing to consider some other kind of future treatment or impairment that the person still has. So or liability. So the insurance company may still be arguing that the injured party was partly at fault or 50% at fault or more at fault than their own insured, usually those are the cases that go to trial. So if your case is more straightforward, nothing is slam dunk, let me be clear about that. Nothing is a slam dunk. But if the evidence in your case is stronger than those cases that I just mentioned, is likely that your case will not go to trial. So between now and a trial date, at some point, your case is more likely than not going to settle. And it could settle before litigation. It could settle after we file a lawsuit, it could settle after discovery, it could settle after depositions is common. It can settle at mediation also common. Or it could settle you know a couple weeks before, the week before, the day before trial too. Now if you want to get what you’re entitled to and move on from this. You have to realize that continuing to press through litigation and go into trial. Those are risks and additional time and additional costs. And so, we will discuss at every one of those points throughout the process, if it makes sense to try to settle your case, or if it makes sense to continue to invest more time and effort, if we need additional evidence that we think is gonna get you that much better of a settlement. So my question again, is, I just wanna get what I’m entitled to. The case is yours. It’s your settlement is your injury case, it’s your settlement. So at any point, if we get to a point where I can tell you look after attorney’s fees, costs, expenses, medical bills, this is what you’re going to walk away with, it is your choice to either accept that amount or not accept that amount and continue to invest more time and effort to hopefully get more of a settlement. Continuing to push does not mean that the money is going to continue to increase. Insurance companies can and often do, remove offers, reduce offers, as evidence comes out, you may think that your case is great, and your doctor may have told you that your injury is completely related to the car crash. But when that doctor is pressed in a deposition, or when I’m just trying to talk to him or her, and they are not interested, then the strength of your evidence goes down. So even though your doctor told you this, if they are not willing to stand up for that opinion, that opinion doesn’t really exist. So what you may think was a stronger case could actually get worse as we go into litigation. And again, these are conversations that you and your attorney will have throughout the entire process. And his strategy right you have to weigh the pros and cons, strengths and weaknesses and decide when you are done and willing to accept the offer that is on the table.

Can I get reimbursed for my medical bills?

So next question is from anonymous. It says I sustained a mild concussion when someone else crashed into me. I have some medical bills coming in. I just used my own health insurance. Can I get reimbursed for these bills? Question mark advice question mark. Okay, so you have an injury claim. And you need to make sure that the insurance company for the driver who caused the car crash is aware of your injury claim and that they have assigned you an injury adjuster to work with you throughout the claim. Now there’s so many things to consider when it comes to medical bills and health insurance et cetra. If you have medical payments coverage on your own policy for your own car, you need to make a claim for that coverage. If you’re not at fault in car crash, it’s not at fault accident on your policy. And you’re not gonna get dinged for using the coverage that you pay for. If you have that coverage, you have at least $5,000. And that is money that your insurance company can pay you directly now, after each submission of a bill. So if you get a bill for $100, send it to your insurance company, medical payments department, have them process it and they’ll send you a check. Now it’s not always that easy. It’s not dollar for dollar. Any insurance company is always going to check into the reasonableness of the service, the reasonableness of the charge, and you know maybe your doctor charge you $100 and your medical payments coverage through your own insurance company is only gonna give you $82. So there’s things to appeal if that happens to you. But using your medical payments coverage is a coverage that you can get payments from. Now, the other guy’s insurance, the male or female who hits you and calls the car crash, their insurance for your bodily injury, personal injury settlement, you’re not gonna see that money until you reach that settlement. So the other guy’s insurance doesn’t pay for anything until you’re done. So that means you are going to continue to incur co-pays, deductibles out of pocket expenses, procedures that aren’t covered by your health insurance. If you don’t have health insurance, you have to pay for all of that upfront and hope that the other person’s insurance will pay you back for it. Now, if your injuries are more significant, and you need more significant kinds of treatment, like extensive physical therapy or surgery, or imaging, things like that, that you can’t pay for, there are companies that will help fund that treatment. But you have to work with an attorney in order to guarantee repayment of those funds to that funding company. So the question again, is mild concussion, I have some medical bills, I use my own health insurance, can I get reimbursed? It’s a very complicated question, hence my very long answer. But the idea is that yes, you should get reimbursed. By doing so is gonna take effort and coordination of all different kinds of insurance.

What if you’re hit by an uninsured driver?

So next question, this will be the last one for the day. This is from an email I’m hearing a lot of questions about the other person’s insurance company. I’m hearing a lot of questions about the other person’s insurance company. But what if you’re hit by an uninsured driver? Yeah, so yeah, all we’ve been talking about today and last time is dealing with the other person’s insurance company, right? Because we’re all required to have liability insurance and every single driver out there complies with the law, right? Well, unfortunately no. So the question here is, what if I’m hit by an uninsured driver? I guess you’re on your own. Yes, you are on your own. But let’s all talk about that here. Do you recommend talking to a lawyer if you’re dealing with your own insurance company? Okay, so hopefully, you have what’s called underinsured motorist coverage on your policy, uninsured, underinsured motorist coverage on your policy, it’s the same coverage is just depends on who hits you. So if the person who hits you doesn’t have any insurance, then that coverage that you have on your policy is uninsured because the other driver was uninsured. If the other driver only had minimum limits or policy that was not sufficient to cover the extent of your injuries damages, then that other driver is an underinsured motorist. So you go back to your insurance company and say either the other guy didn’t have insurance or the other guy didn’t have enough insurance. So that coverage through your own insurance company is what provides you with coverage to settle your injury claim arising from this car crash. If you don’t have that coverage on your policy, you must have rejected it. So your insurance company must supply your signed rejection in order to stand by their denial of your coverage if they can’t find your rejection or if you never sign one, they just didn’t get it to you or something like that, then you still have to be afforded that coverage by your insurance company. Also a few other things, you may be able to get additional coverage if you’re driving somebody else’s car or if you live with somebody or a few other circumstances. So if you don’t think you have that coverage, double check with an attorney to make sure that you guys have exhausted all potential avenues of recovery. Okay, so, second part of the question is, do you recommend talking to a lawyer if you’re dealing with your own insurance company? So it’s kind of the same way if you’re dealing with the other drivers insurance, if your injuries are not severe and you are having In a good relationship with your adjuster. And the adjuster is treating you fairly, and addressing your questions and concerns. And it is possible that an insurance company can help you resolve this claim and you will not need to hire an attorney. So if you get to the point where you’re negotiating your case, and the adjuster offers you something that you accept, then that you think is fair. Again, it’s personal to you. So if you think it’s fair settle your case and that’s it. Now, if your case gets complicated, you have a lot of different medical providers, you have, you also have insurance, health insurance you have maybe you’re using somebody else’s car insurance as well, and how does that work with this and maybe you have Medicaid, maybe you have Medicare. Like I’ve said before, it can get really complicated really quickly. So if you ever feel slightly overwhelmed, you should pick up a phone and call an attorney.

Like I’ve said before, every personal injury attorney that I know does consultations, of course I do. And I really am happy to explain the process, or maybe answer some of the questions that you might have at the beginning. And then I can tell you, you know what, I think you’re gonna be just fine, you know. You should soldier on your way, or I think that this could get complicated. Maybe we should follow up in a couple weeks, or I think you’re at the point where you should retain an attorney. So that’s it for today. Very good questions. These are these are all questions that I face often, again and again. So thank you for submitting your questions. Let’s do this again next Monday. So next Monday will be after 4, July weekend. So please be safe out there. Don’t drink and drive. Stay away from other cars. And just take care of yourself. Again, my name is Dale Casares and I’m a personal injury attorney at Robinson and Henry. Thank you for joining me today.

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