Monday Myth Busters: Personal Injury- July 6, 2020

Each week, personal injury attorney Dale Casares spends time educating the community about their personal injury options.
Monday Myth Busters is dedicated to answering your questions. See what Coloradans asked on July 6, 2020. (A transcript of the event is available below.)

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Good morning. My name is Dale Casares. I’m a personal injury attorney at Robinson & Henry. I’ve got a few questions to go over today.

What if you’re the passenger of the at fault driver, and you were hurt in the incident?

One of the first ones was from last week that I didn’t get a chance to do. It is from anonymous. The question is, “What if you’re the passenger of the at fault driver, and you were hurt in the incident.” And then the rest of the question is, “Am I suing my friend, I don’t want to hurt our friendship, but I want to make sure my bills are taken care of.” So very understandable. So you and your friend are driving and your friend causes a car crash. Do you have to sue your friend? Well, you’re not suing your friend yet. So you are going to make a claim against your friend’s insurance for your bills, of course. I mean, if he or she was responsible, then he or she should pay for your full damages. Which would include your medical bills, but that comes from his or her insurance company. So, if you are not able to adequately negotiate your case with your friend’s insurance company, then unfortunately, you do have to sue. So you will be suing your friend, but that is what his or her insurance is there for. So, really you’re filing a lawsuit because the insurance isn’t making you a fair offer. And so yes, you do have to sue your friend because in Colorado, we don’t have direct actions against insurance companies. So if John hits me, I have to sue John even though I’m going after John’s insurance which is Allstate. So yes, you do have to sue your friend, but that his or her insurance will provide a defense and then you’ll have more opportunity to negotiate your case.

Can the hospital that treated me for my injuries, try to come after any settlement that I might win?

Okay, so next question I have is an email from a person in Denver. The question is, “Can the hospital that treated me for my injuries, try to come after any settlement that I might win?” The answer is yes, okay? Any medical treatment that you get as a result of your injuries that you sustained in a car crash is a debt just like anything else, so you are responsible for paying those bills. Sometimes hospitals or other providers will put the insurance company on notice of their claim to your settlement fund. And if you hire an attorney, we’ll send the notice to the attorney. And yes, you do need to resolve your bills out of your settlement funds. If the provider, whether it’s a hospital or chiropractor files a lien with the Colorado Secretary of State, you can’t get that money for that amount until you resolve that lien. Now, if the bill is $100, that doesn’t mean they have to pay $100. Everything in life is negotiable. So there are different ways to negotiate balances down to give you more of a recovery or if there’s limited settlement funds or policy limits. But the answer to the question is yes, the hospital can come after you. It’s a debt that you have to pay for.

Do I still have a case even if I am partially at fault for the accident?

Okay, next question here is also from an email. “Do I still have a case even if I am partially at fault for the accident?” Okay, so before we can figure out what we can settle your case for, how much money you can negotiate for, we have to establish liability, okay? So, if the other person is 100% of fault, great. But if you contributed to the car crash, you were comparatively at fault. Now the way the law works in Colorado, it’s called a Modified Comparative Negligence. And Colorado follows the 50-50 rule. So if you are 25% at fault, and that means that the other driver is 75% at fault, if there’s only two cars involved. So you can only recover 75% of your damages from the party who is more at fault than you were. If you are 50-50, then you get nothing. That’s the rule in Colorado. It’s one of only 12 states that follows the 50-50 rule. So again, if you are 50% of fault, if you’re 50-50, you recover nothing. You have to be less than 50% at fault in order to recover from the other driver. So if you are 50… if you are 49% at fault, and the other driver is 51% at fault. Well you can recover from the other driver but you can and recover 51% of your damages. So again, Colorado’s modified comparative state and we follow the 50-50 rule. We’re only one of 12 states who does that. And, other states do other things too so, but that’s the rule here in Colorado.

Should I sign medical & property damage releases before having an attorney look at them?

Okay, next question is from Arlene in Castle Pines. She says, “I’ve been asked to sign medical and property damage releases. I told the insurance company I wouldn’t sign them before talking to a lawyer. Are these standard releases? And should I have a lawyer look at them first?” So first question is, “Are the standard releases.” Who knows, right? Probably. If you’re making an injury claim, the insurance company is going to want you to sign a medical authorization that allows them to obtain medical records. However, they almost always do give you a standard form that is completely wide open. So they will ask you to sign a medical authorization and it allows them to get medical records from anywhere, anybody, anytime, any condition. So if you’re also seeing a cardiologist, and your neck injury that you sustained in the car crash, has nothing to do with your heart condition. If you sign a release that is open to that, then that does allow them to get all of your medical records from any one of your providers. Same for any other type of provider, any other kind of sensitive information that has nothing to do with a car crash that you don’t want the insurance company or somebody else taking a look at. You need to limit the authorization that you do sign, if you decide to sign. I advise, don’t sign anything, right? So if you are making a claim for a broken ankle that you sustained in a car crash, well, the insurance company needs to see the ambulance records. They need to see the emergency room records and they need to see the records from your orthopedic doctor for your ankle surgery. But they don’t need to see your gynecology records and they don’t need to see your cardiology records or whatever else, right? So you can obtain your own records and bills from the treatment that you are claiming is related to the car crash. And you can provide that directly to the insurance company. You don’t have to do anything, if it’s the other person’s insurance. If it’s your own insurance company, there’s caveat to that ’cause it’s a different standards. It’s a contract that you have with your own insurance company. So there are duties that you do have to follow. But again, everything needs to be reviewed. So if you don’t want to talk to an attorney about reviewing the releases, that would be the first step, is they just get the medical records on your own. If that’s complicated, then at that point, you should consult an attorney to take a look at things or to ask strategy questions. If your case is more complicated than an emergency room visit, and a little bit of treatment, you should probably be consulting an attorney. Now, that was the question about medical releases, there’s also a question in here about property damage release. I’m not exactly sure what that’s referring to, but I assume this might be is. So your injury claim is completely separate from your car claim. So if you were in a car crash, and let’s say you got rear-ended and the damage to your vehicle is severe and your car’s totaled, and the insurance company for the guy who hits you wants to resolve your total loss, they always do. They wanna move. They wanna get the property, they wanna either repair it, so they don’t want to pay for a lot of rental or they want to auction it off to get that out of their inventory. So insurance companies typically move really quickly on car damages, and there might be a release there. So if there’s a property damage release, that you’d have to sign for your total loss, in order to get your total loss cheque, then that might be something that they’re required or if they want you to release the vehicle, from the tow yard to the insurance companies, so that the insurance company can get it out of storage, which is very expensive. And move it to a storage relocation so that they can continue to do their evaluation and their total loss workup or whatever else it is that they need to do. Those would be okay. You probably wanna get the money for your car as soon as possible. So that you can buy a replacement car and get on with that part of your life. So property damage releases, I’m less concerned about, medical releases I’m very concerned about. And if you have any questions always just reach out and call an attorney and we do consultations.

The at fault driver still hasn’t reported the accident to their insurance company? What should I do?

Okay, next question. “I was in an accident, and the person who hit me still hasn’t reported it to their insurance company. The accident wasn’t my fault, but the other drivers insurance company won’t do anything with my claim. What are my options?” This is very frustrating. So you have a few different options. You can report the claim to the insurance company yourself, especially if there’s a police report. You don’t have to wait on the other driver to do anything if you were a injured party or a victim. If you had damages as a result of somebody else make the claim. The other thing that you can do is report it to your own insurance company. So I know a lot of times people say why? I don’t wanna make a claim because it wasn’t my fault. Well, in this situation, you need help and you have insurance for this case. If you’re not at fault, it’s gonna be a “not at fault accident” on your policy, and should not affect your insurance rates. So report the accident to your insurance company and have them do the running around for you. They will investigate, they will get the police report, they will contact the other driver, they will contact the other insurance company. If you have first party coverages on your policy that means if you have collision for your car, and if you have medical payments coverage for your injuries, and if you have underinsured motorist coverage for your injuries, Your insurance company will do this investigation, that is their duty. That’s what you paid for. So if you can’t get anywhere with the other guy’s insurance, call your insurance company. Have them do it.

How do I know I’ve been offered a good settlement?

Okay, next question is Tom from Highlands Ranch. He says, “How do I know if I’ve been offered a good settlement?” Well, that’s always the question, right? So Tom, if your injury is personal, okay? So if your injury and your treatment have been relatively uncomplicated, if you have a neck injury, that you had a couple months of treatment for, that is resolved. You know your body. If you think your body truly is 100% back to normal, well, then it’s something that you can settle on your own. So if the insurance company is paying for all of your medical expenses, and paying for all of your lost wages, and paying for what you feel is an adequate amount for your pain and suffering, for those nights that you couldn’t sleep, for the pain that you fell, for the times that you couldn’t play with your children, couldn’t go participate in any kind of other hobby or life as it was. If they have offered you an amount that you feel compensates you for all that well then yeah, that’s a good settlement, right? Is your settlement to take. But if you feel like they are not fully considering some portion of your damages, which they’re probably not, then you should consultant an attorney to have somebody help you take a look at the different categories of damages that you can make a claim for. And talk to you about whether or not you feel that you’ve been compensated. Now, if you do hire an attorney, well the attorney is gonna take part of that settlement. So an attorney has to make sure that they can add enough value to get you above what you’re gonna net anyway. So if you feel that you’ve done a good job, and the insurance company is treating you fairly and you’re ready to close it, well then close it, settle it and move on. But if there’s any hesitation, pick up the phone and contact an experienced personal injury attorney so that we can give you that second set of eyes and say, “Tom, I don’t think I can do any better for you.” Or, “Tom, they’re not really considering a lot for what you’re telling me. So, maybe we should look further.” So that’s what I would say, Tom.

What kinds of personal injury cases do you take?

Okay, Gail’s question is, “What kinds of personal injury cases do you take?” Well, I really focus in car crashes. That’s what I’ve started my career as. And that’s what I really like to do. I can also do a few different other cases, types of cases. One is premises liability, like slip and fall cases. And then the other cases are dog bite cases. So those have different complications, and not every case makes sense for me to be able to take. Because all these cases, I take on a contingency fee basis. So it’s a risk assessment, that’s actually gets into the next question.

Can you discuss your fees? Is there a retainer?

The next question is, “Can you discuss your fees? Would I have to pay a retainer?” So I’ll address those two questions. No, all cases that I take are on a contingency fee basis for personal injury. And no, you do not have to pay a retainer. What contingency fee means is that, my fees are contingent upon whatever recovery I am able to obtain for you. So and my fees are one third of the settlement before litigation and then 40% of the settlement after litigation. So, Gail, going back to your question, when I’m doing an intake with potential client, I am assessing that case value. And I am assessing the risks and the complications and the anticipated expenses that I see in that case and I have to make sure that I think we can win your case. And that I think we can do a good enough job for it to make sense for you to hire me. So slip and fall cases and dog bite cases, those are just a lot more risky for different reasons, different legal standards apply to those. And then there’s also more of an opportunity for the victims involvement in the causing the issue, okay? So I will look at those cases, but I don’t take as many of those cases. I really do focus on car crashes.

Is there a time limit on when I can get reimbursed for medical bills caused from a crash?

Okay, so the next question is an email from an anonymous person in Colorado. The question is, “I was hurt in a car crash, I pay all of my medical bills myself using my insurance. Is it too late to try to get reimbursed? I understand there is a statute of limitations.” Yes, so there is a statute of limitations. For a car crash is three years. For a slip and fall, like I just mentioned, that’s only two years. So car crashes, three years statute of limitations. And what that means is that you have to either settle your case, or file a lawsuit within those three years in order to protect that claim. So if you’re within those three years and you never settles, then yes, you still have a claim. And your question is, “Is it too late?” So only if you’re within those three years and then you need to make a claim and negotiate a settlement, as we’ve discussed in other questions here, considering all of your damages. And if you can’t get to the point, if you can’t get all that done in three years, then you have to file a lawsuit by the three year mark, in order to keep your claim going as you go into litigation.

What should I do if a new crash re-injures old injuries and the insurance company doesn’t believe me?

Next question is, “I re-injured my neck after I was rear-ended last month. Because I already had a neck injury, the insurance company is trying to say, it wasn’t from the car accident. Suggestions on what I should do.” Okay, so nobody walks around with a perfect body, right? We’ve all suffered injuries before, sports injuries, falls, maybe prior car crashes, maybe just some kind of degeneration with your spine or your shoulder or your knee. We all have something going on in our body when we’re involved in a car crash. But the person who is at fault for the car crash owes you, for all of your damages, no matter what condition you were in before. So, any insurance company is always going to poke a hole in anything that they can. So any claim that is made they’re gonna say, “No, it isn’t. No, it’s not. No, was it. No, it didn’t.” That’s their job. They’re gonna take your claim that you’re making and chop off whatever they can chop off. So, if you had a pre-existing neck condition, of course they’re going to look at that. And maybe some part of your current damages are not related to the car crash. Maybe you would be somewhere where you’re at now, but you’re a little bit worse. So what I like to think of is, before the car crash, you’re going along this route. And maybe you have a neck injection because you had a prior neck injury or you had degeneration or something that’s going on with your neck that is why you have a prior neck condition. So maybe you get an injection and then your symptoms, kinda go back to here, right? And then you get in a car crash and your symptoms go up. and you treat for a while and your symptoms get better. But then your new plateau is here, whereas your plateau before was here. This gap the insurance company owes for that. So it does get complicated, you may have to have a doctor talk about apportionment. Answer so what was pre-existing, and what was after the fact. And what future treatment you might need that you would not have needed, or what type of treatment that has been recommended, that maybe would have been recommended anyway. So there’s definitely a lot to look at. But it just takes all the medical records and experts and conversations and talking through all that to see what the truth is.

If I’m hurt in an Uber, who pays?

Okay, one more question for today. “Who pays if you’re hurt while riding in an Uber?” So that is a way of life these days, Uber and Lyft, right? So I’ve handled a couple cases where clients were either hit by an Uber or Lyft driver, while that person was on the platform. And I’ve handled a few cases where my client was a passenger. Okay, so if the driver of the Uber or Lyft vehicle was at fault, then that driver pays for it. So if that driver was on the platform meaning, they were actively driving for Uber or Lyft at the time they were in route to pick up somebody or they has somebody in their car, then they have insurance that… It’s very high insurance. That will pay for the injuries to the person who they had in their car, and the people involved in the other cars that they hit. Now if you were riding in an Uber, and another car hit you and that person was at fault, then that person’s insurance is going to pay for your damages up to their policy limits. And then you have underinsured motorist coverage from the Uber or Lyft policy that will for your damages and your injuries after the other guy’s insurance is exhausted. If that is not enough to cover your injuries. And then you also might have under insured motorist coverage on your own policy, on your own car. So coverage meaning where does the money come from? What policy? Whose at fault? Which car? That all can get pretty tricky too. Sometimes it’s really just straightforward. Guy A hit me. Guy A’s insurance pays for it and there’s enough insurance there and everybody’s happy. But if your injuries are more significant and there’s not enough insurance, well then we have to look at other different policies to find out what other coverage you might have to help you compensate for all of those injuries. “So who pays if you’re hurt while riding an Uber?” So if the Uber drivers is at fault, Uber pays for it. And if some other guy’s insurance, or some other guy who’s at fault. And if another guy’s at fault, then his insurance is gonna pay for it.

Okay, so those are the questions that we have for today. Again, we do this every Monday. Every Monday morning at 11 a.m. and it is live and we do take questions live. So if you have a question that you would like to see me answer, you can send us an email or give us a call, and we can put them in the queue to answer during the next event or you can just sign up and attend the next event and ask a question live. So I will see you all next Tuesday. Thanks, bye.

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