FAQ - Auto Accident
- What should you do if you are in an auto accident?
- What should you NOT do if you are in an auto accident?
- What if the other driver doesn't have sufficient insurance?
- How much compensation are you entitled to?
- How long do you have to file a claim?
- Will your case have to go to trial before a jury?
- How much will you have to pay in legal fees?
- Do you really need a lawyer to handle your claim?
- What is subrogation?
- What is a Special Needs Trust?
- Why choose WISEMAN BRAY PLLC?
What should you do if you are in an auto accident?
- Stay calm and keep your composure.
- Call the police.
- Do not move your vehicle until instructed by the police.
- Get the make, model, and plate/tag number of the other vehicle.
- Get the name, address, phone number of the other driver (and also the vehicle owner if the driver does not own the vehicle).
- Get the name, address, and phone number of any witness(es) to the accident.
- Get the name and badge number of the police officer who investigates the accident.
- Be courteous to the other driver and any emergency personnel who come to the accident scene. If the other driver is confrontational or angry, then stay in your vehicle and wait for the police to arrive.
- Seek medical attention if necessary.
- Report the accident to your auto insurance carrier immediately (no less than 2-3 days after the accident). Our lawyers can handle this for you after we have been retained.
- If you suspect that you have enhanced injuries due to a vehicle defect (e.g. a defective air bag or seat belt), do not repair or salvage the car before speaking with an attorney. This may constitute destruction of crucial evidence and may effectively prevent you from bringing your claim.
- Take extensive photos of your car prior to making any repairs.
- Take photos of the accident scene if possible.
- Take photos of any injuries. By the time your case is ready for settlement or trial, even the most severe cuts, scrapes, and bruises will likely have healed.
- Record important dates, times, and events such as doctor visits, phone calls with insurance adjusters, auto repair appointments, etc.
- Consult with an attorney as soon as possible to avoid doing something that will inadvertently reduce your chance to recover benefits that you rightfully deserve.
What should you NOT do if you are in an auto accident?
- Avoid comments at the accident scene or to insurance adjusters like "I'm okay" or "I'm not hurt." A few days may pass before the full extent of your injuries are known or even felt, particularly with neck and back injuries, and your attempt to be helpful may be taken out of context. Indeed, a common tactic for insurance company adjusters is to try to contact you shortly after the accident to record a statement before you fully appreciate the extent of your injuries. Perhaps a better response would be something along the lines of "I feel okay right now, but I'll let my doctor check me out (or I'll let them check me at the hospital) to make certain." Unfortunately, when it later comes time to deal with the insurance company handling your claim, your attempt merely to be helpful and truthful may be taken out of context and used against you. Let your medical records ultimately do the talking for you.
- Avoid saying things such as "I should have seen him" or "I'm sorry." It is natural to be embarrassed, gracious, sympathetic, and/or confused at the scene of the accident, and to deny injury and/or seem to accept responsibility for the accident. Again, though, when it later comes time to deal with the insurance company handling your claim, your attempt merely to be sympathetic and/or helpful may be taken out of context and used against you.
- Exercise a healthy dose of suspicion when dealing with insurance company adjusters and employees. This includes your own insurance company! Insurance companies are good at what they do. They have tactics and procedures for gathering and evaluating information, often using computer analysis. And remember that even though an adjuster may sound friendly and helpful, he/she works for, and is beholden to, the insurance company - not you. The adjuster has only one job to do, and that job is to minimize the amount that the insurance company will have to pay out on your claim. It is tempting to feel like your case and your adjuster is somehow special or different, but remember that adjusters handle personal injury claims for a living. They have seen and heard it all, and consequently, they are understandably skeptical by nature. Your case is not special to an adjuster. It is merely another file that must be worked and closed.
- Do not give a recorded statement to any insurance company adjuster or employee until you have consulted with an attorney. It is a common tactic for the insurance company adjuster - in an effort to appear timely and responsive - to contact you and try to record a statement over the telephone just as soon as possible after the accident. However, this often occurs before you fully realize the extent of your injuries, or have had time to appropriately reflect on how the accident unfolded. You may later discover other injuries or complications, or remember other facts related to the accident, but the insurance adjuster will have already "locked in" your story on tape. Thus, your attempt to be helpful, truthful, and cooperative may later be taken out of context and used against you later.
- Do not sign anything that says "Release" or "in full satisfaction of all claims." This language is sometimes printed on checks even when only partial payment is being made. This may occur, for example, when the adjuster sends a check to cover your property damage only. Be careful that you do not also inadvertently sign away your rights to pursue your personal injury claim.
What if the other driver doesn't have sufficient insurance?
Minimum insurance coverage required under Tennessee law is $25,000 per person. Unfortunately, these limits are extremely low, and they may not be enough to cover your claim. Further, many drivers simply choose to violate the law and carry no auto insurance at all.
When either of these situations occur, your own insurance company can be required to make up the difference, provided, of course, that your own insurance limits are higher than those of the driver who is at fault in the accident. This is referred to as the uninsured/underinsured provisions of your policy.
CASE STUDY: Client was injured in a car crash resulting in large medical bills. Unfortunately, the negligent driver had only $25,000 in liability insurance coverage, and the client had only $50,000. As a result, the client was only able to recover a total of $50,000 ($25,000 from negligent party's insurance company, plus $25,000 from her own insurance company).
CASE STUDY: Client received spinal injuries and a broken pelvis in a car crash requiring significant surgeries and medical treatment. The negligent driver had $50,000 in insurance coverage, but, fortunately, the client carried $250,000 in liability coverage. Client therefore received a total settlement of $250,000 ($50,000 from negligent party's insurance company plus $200,000 from her own insurance company).
Lesson: It is important to realize that when you are purchasing auto liability insurance, you may actually be choosing the insurance limits that will cover your own family. So make sure that you purchase an adequate amount. Indeed, low liability limits may seem like a bargain until someone with little or no insurance causes a catastrophic injury to you or someone in your family.
How much compensation are you entitled to?
You are entitled to recover for lost wages, property damage, medical expenses, emotional distress, physical impairment, and pain and suffering. If the offending party's conduct was egregious enough, the Court may also require payment of punitive damages.
The amount of recovery varies from case to case and depends primarily on the nature and extent of the injuries and damages. There is no exact method or formula to determine a precise figure. In order to properly assess the value of your claim, an experienced attorney will consider such things as: the type of injury, the length of medical treatment, the type of medical treatment received, the cost of medical treatment, the part(s) of the body injured, the permanency of the injury, the family status of the victim, the age of the victim, whether the victim is sympathetic, whether a typical jury would likely identify with the victim, the egregiousness of the conduct of the offender, and the size of awards and settlements in similar cases.
How long do you have to file a claim?
Under Tennessee law, a personal injury claim must generally be filed by the victim (or their next of kin in a case involving wrongful death) within one (1) year from the date of injury. However, determination of the exact time period for filing suit (referred to as the statute of limitations) can be confusing and complicated. You should contact a lawyer immediately if you believe you have been the victim of negligence or you may risk forfeiting your legal rights.
Will your case have to go to trial before a jury?
More than 90-95% of all cases settle prior to trial. Trial can often be an all-or-nothing proposition, and settlement is a way to avoid that kind of high-stakes risk. However, cases do not settle by accident. The pretrial discovery process allows each party the opportunity to get an extensive preview of their opponent's case. And by the time the trial date rolls around, each side has a pretty good idea about the potential risks and rewards of going to trial.
The lawyers at Wiseman Bray PLLC understand that the best negotiating leverage to obtain a favorable settlement is a well-prepared case. The bottom-line is that the insurance company must know that we are not only willing, but also fully capable and prepared, to take your case to trial if necessary. This is accomplished by aggressive, thorough pretrial preparation that invariably communicates to the insurance company that we take your case seriously. We treat each and every case as if it will go to trial until such time as the insurance company makes a settlement offer that is acceptable to our client.
This strategy goes hand-in-hand with our overall firm philosophy. We carefully scrutinize every case, and we generally accept only those that we believe have merit and involve verifiable injuries. Indeed, unlike some large personal injury firms, we do not seek a volume business and do not accept cases merely because they may have some "settlement value." When we accept a case, our client knows that we genuinely believe the claim has merit, and that we will aggressively fight for her. We believe this also gives us added credibility when it comes to dealing with insurance adjusters and opposing counsel, which in our judgment leads to favorable settlements for our clients.
How much will you have to pay in legal fees?
Our firm handles personal injury cases on a contingency fee basis. This means that our fee is calculated as a percentage (generally 33%) of our client's total recovery. If we do not recover money for you, then you do not owe any attorney's fees. We do not charge by the hour in personal injury cases.
Under our state ethical rules, the client must ultimately be responsible for payment of any costs incurred (i.e. medical expert review fees, securing copies of medical records, etc.). However, we are permitted to advance (or pay up front) such costs so that a victim will not be denied her legal rights simply because she did not have the financial capability to investigate and pursue a valid claim. Those costs are then deducted from the client's recovery at the end of the case. Each client's financial situation is different, and we handle the payment of costs on a case-by-case basis.
Do you really need a lawyer to handle my claim?
This is a common question in so-called "clear cut" accidents. Often, this question is driven by a suspicion that the victim will simply end up with less money because the lawyer will take a portion of the recovery to cover his fee.
At the root of this suspicion is the assumption that the lawyer will not be able to substantially raise the amount of the recovery. However, our experience has shown that most victims simply do not have the expertise or experience to secure the full recovery to which they are entitled, even taking into account any reduction in the recovery to account for attorney's fees and costs. This suspicion is often subtly encouraged by the insurance adjuster assigned to the claim. There are even cases where adjusters have been know to affirmatively pressure victims into avoiding seeking assistance from counsel (e.g. "If you want to hire a lawyer that's okay, but I'll have to reassign the claim to my supervisor, who is much more difficult to deal with.").
While it is certainly possible to handle your own claim, the relevant question is whether you are truly competent to do so. Frequently, the initial cooperation and attentiveness of the adjuster lulls a victim into a false sense of security. Remember, though, that insurance adjusters handle personal injury claims for a living, and that they have a natural advantage over untrained victims. You deserve a level playing field so that you can fairly compete with a trained adjuster who is working to minimize your recovery.
Further, the real work often begins once the recovery has been negotiated. Post-negotiation issues such as insurance subrogation can be complicated. For example, a victim may find herself obligated to reimburse her health insurance company (or Medicare or Medicaid) for payments made to medical providers to treat her injuries, under penalty of possibly being denied further health insurance coverage, which can be disastrous for persons with serious injuries. Further, unless settlement payments are properly structured and/or protected through a Court-ordered special needs trust, a victim may suddenly find herself ineligible for needed disability assistance, such as SSDI. The victim may also not know how to take advantage of certain tax benefits that may be obtained from structuring a settlement to make payouts over time.
What is subrogation?
As noted above, medical expenses are generally included as part of the damages recovered for injuries. So, when a health insurance plan or governmental plan (i.e. Medicare or Medicaid) actually paid those expenses, it is entitled to be reimbursed for its costs out of your recovery. This is the legal doctrine of subrogation. The rationale is that since the health insurance plan actually paid those expenses, then it should logically receive that portion of the funds.
Having said that, it is important to continually coordinate efforts with the health plan to ensure that all relevant medical expenses are included as part of the claim in order that the victim is not in the position of later learning that what she thought was a fair recovery is actually not, due to a higher than expected subrogation claim by the health insurance company. It is often difficult, for example, for the victim to know the precise amount and breakdown of the medical expenses incurred (i.e. have you ever tried to decipher an Explanation of Benefits (EOB) received from your insurance company?).
Fortunately, it is also possible under certain circumstances to negotiate with the health insurance provider to reduce their subrogation request, sometimes substantially. This depends on the health plan involved (some are routinely easier to deal with than others), the applicable law, the amount involved, and the nature and extent of the victim's injuries. Government health plans generally have specific, yet complicated, statutory formulas for determining the amount of allowable reduction of the subrogation interest.
Negotiating a reduction of the subrogation interest can frequently be as difficult as negotiating the recovery itself. The attorneys at Wiseman Bray PLLC have experience protecting the value of our clients' recoveries, and we stay abreast of cutting edge developments in the law of subrogation.
CASE STUDY: Client received significant spinal injuries requiring over $325,000 in medical expenses. Due to insurance limits, however, the maximum recovery available was only $250,000. Our firm negotiated with the health plan and reduced the subrogation claim to $0.00 so that our client was able to keep her entire share of the recovery.
What is a Special Needs Trust?
Many persons who are disabled as a result of accidents can qualify for much-needed government assistance programs. However, unless properly handled, a settlement or judgment that is in excess of very limited exempt levels, may disqualify even the most severely disabled person from a wide variety of government assistance programs and services. Many of those services are difficult, if not impossible, to purchase outside of the government assistance programs. For that reason, Special Needs Trusts (SNTs) are often used to receive and manage negotiated settlements and judgments for those with disabilities.
Two "control" options are generally available for managing assets of an incapacitated individual: 1) guardianship (including conservatorship), or 2) trust. Assets held in a guardianship belong to the ward, and thus by definition are "available" to him or her for purposes of benefit eligibility determinations. Assets held in certain trusts belong to the trust, not to the beneficiary. To avoid having trust assets counted as "available" to the beneficiary as an asset or resource, the trust is structured such that the beneficiary has no ownership interest in, and is not entitled to demand payments from, the trust.
While most attorneys who represent severely injured clients do an excellent job in the preparation and presentation of the liability/personal injury case, both in settlement discussions and in litigation, it is imperative to have an attorney who understands the big picture, and who understands that a favorable settlement or judgment can have disastrous unintended consequences if it is not structured properly. Issues involving competency to properly hold and manage the proceeds of litigation must also be considered.
The 1993 Omnibus Budget Reconciliation Act (OBRA) validated the use of SNTs for disabled persons in combination with their continuing eligibility for needs-tested, disability related federal programs. The relevant portion of the Act provides that assets held in such trusts shall be disregarded when determining the eligibility of beneficiaries of those trusts for federally funded disability related benefit programs.
Though less important now as a result of the 1993 OBRA amendments to Medicaid eligibility rules, constructive receipt of settlement proceeds by the client should still be avoided. State and federal court rules applicable to clients under disability should be utilized to establish jurisdiction to allow the court to direct settlement or judgment proceeds to properly drafted trust instruments. This allows the attorney with the assistance of the Court to protect the best interests of the disabled client.
At Wiseman Bray PLLC, we have an in-house attorney who practices specifically in this area in connection with other estate planning and asset protection services.
Why choose WISEMAN BRAY PLLC?
Our lawyers are well-trained, and we can properly evaluate and timely prosecute your claim. Further, we carefully scrutinize every case before agreeing to accept it, which means that our clients know that we genuinely believe their claim has merit, and that we will be aggressive and fight for them. It also permits us to avoid a reputation for filing questionable lawsuits, which we believe affords us a greater level of credibility when it comes to dealing with adjusters and opposing counsel. For obvious reasons, this ultimately benefits our clients.
Our philosophy is quality over quantity, and as a result, we believe our clients receive a high level of service and attention because we are able to focus our time and resources effectively.
Further, we have historically represented both plaintiffs and defendants in personal injury claims, which we believe gives us an added edge. Because we have experience on the defense side, we have worked with adjusters and insurance companies, and we believe we know how they approach and evaluate claims. This experience also provides an added measure of credibility when dealing with those adjusters and the attorneys they hire to represent the interests of the insurance company.
The attorneys at Wiseman Bray PLLC also have experience protecting the value of our clients' recoveries once they are obtained, and we stay abreast of cutting edge of developments in the law of subrogation, taxes, and the use of special needs trusts.
We would be honored to review your case free of charge. Please either submit an online request for a Free Case Review, or call to speak with a accident lawyer at 901.730.4952.