After a car accident, many of my clients report a "fear of driving" - a fear they're going to get into another accident, especially when circumstances are similar. As a result, they want to be compensated for this as part of their overall claim.
Many clients seem to have some degree of post traumatic stress disorder because they are frightened when it comes to driving an automobile. Every time they approach a similar scenario while driving, their body tightens up, and they fear they're going to get hit again. This is very common when it comes to car accidents. People are afraid to drive through an intersection if they got hit in an intersection. People are afraid to stop at a stop sign for fear they will get rear-ended. This can go on for weeks or sometimes months. Unfortunately, this fear is not really compensable when it comes to accident cases. With respect to the person actually undergoing the stress, it is very real and very disheartening.
The truth is "fear of driving" (while certainly a real side effect of accidents) isn't worth very much when it comes to personal injury cases. Most juries don't award very much for this kind of fear. Unless you have serious psychological damage (i.e., you went to doctors etc), it's just expected as "part of life," so most juries and judges will not award much compensation for this fear of driving. It is a very real fear, and there is no denying its existence after many car accidents. However, when it comes to compensation, don't place too much value on it.
The insurance adjuster may ask you for your social security number at some point during your claim. The primary reason they want your social security number is because they want to “index” you. That means they want to run your social security number through their computer system to see whether or not you have a previous claims.
In some cases, they can learn about previous accidents, injuries, attorneys you’ve worked with, doctors you’ve seen, and much more. If you have a rich history of claims, you can expect that could backfire when it comes time to settle your case. Pre-existing conditions and claims to the same body parts in the past will be used against you.
Insurance companies look for any evidence of a similar injury from the past. For example if you’re claiming a back injury from an automobile accident, any mention of previous back injury will likely backfire and work against you. Of course, there is the notion of “aggravation of pre-existing condition,” but the difficulty comes in trying to assess how much is attributable to the new accident versus how much is attributable to the old accident or pre-existing condition.
Therefore, providing the other insurance company with your social security number essentially gives them permission to go fishing for your history. By the same token, the lack of any previous claims can benefit you in some cases. Insurance companies have grown tired of “professional plaintiffs,” people who make claims every couple of years for one reason or another. However, if your record is very clean and you have no pre-existing claims or very few, that can actually help your case to some extent.
If you're involved in a hit and run accident, the best thing to do is try to obtain as much evidence of the incident as you can. Talk to witnesses who may have seen the accident and get their information. Call the police and make a police report. If they won't come to the scene, have a police report prepared on a subsequent date. It is important to document the fact that this hit-and-run accident occurred. Since it was a hit-and-run accident, you can't go after that party's insurance company. Therefore, your only option will be to pursue your own "uninsured motorist" policy (aka UM Coverage). Of course, that assumes you have UM coverage available.
If you want to pursue your own insurance company's uninsured motorist policy, you will have to prove that something actually happened. Sometimes, your insurance company might be suspicious of your claim if you cannot prove that someone else caused the accident and fled the scene. A hit and run accident is often treated as though it were an uninsured motorist case - even though the other driver may have actually had insurance. After all, you were injured by someone else who for all intents and purposes doesn't have insurance available for your claim. As a result, you will have to pursue your own insurance company's policy.
You want to make sure you gather as much evidence as you can about the hit and run because the insurance companies are trained to be suspicious when comes to hit and run accidents. Believe it or not, there are some people who fake claims against insurance companies in order to collect. You don't want to be lumped in with these people!
I met with a new prospective client today. She got into a pretty bad rear end accident and suffered some severe neck pain. She was taken by ambulance to the ER and they recommended she follow up with her doctors. Every time she tried to call, she got poor service. They would not schedule her or would claim her health insurance didn't cover this or that. Essentially, she was given the run around. While it certainly wasn't her fault, she waited 2 months before she saw me for a consultation. As a result, she had not had any physical therapy for about 2 months. I told her the insurance company for the other party would certainly use that gap against her. Even though she had perfectly legitimate explanations, and had suffered a strong impact, her case would probably be worth less because of the delay in commencement of treatment. That isn't always the case, but the insurance companies routinely use lags in treatment to defend and minimize accident claims.
Not only is NOT wearing a seatbelt dangerous, but it can also backfire on you if you bring a claim against the responsible party in a car accident. In California, the other party will point to your "comparative negligence" for not having worn a seatbelt. Their argument will be that your lack of seatbelt contributed to your injury. In other words, had you been wearing your seatbelt, your injuries would have been far less serious. Of course that isn't always true, but truth doesn't really matter when it comes to defending a case in the personal injury world. The insurance company for the responsible party will do anything to poke holes in your case. Also, a jury might look unfavorably upon someone who was injured if they were not wearing a seatbelt, even if one can demonstrate the lack of a seatbelt had nothing to do with the injury. The moral of this story is you should wear your seatbelt when driving or anytime you're in a vehicle. Wearing your seatbelt is arguably the safest thing to do and is required by law. If you get hurt in an accident and you weren't wearing your belt, that fact will certainly be used against you. Simply put, be safe - personal injury case or not.
Many people wonder what their personal injury case is worth. The problem is there is no real "guide" you can buy with values assigned to different injuries. However, an experienced lawyer can provide you with some guidance. Also, insurance companies keep statistics on injury cases so they have some idea how much a case is worth. Typically, if an insurance company makes an offer to you, they may indeed be low-balling, but their offer often has some basis in reality. Therefore, if they offer you $1500 on a minor soft tissue case (minor whiplash from a car accident), it's because they know juries rarely award very much for such cases and it will cost you more than that to file a lawsuit. Factors that can affect the value of your case include how old you are (the older you are, the more likely you are to get injured), the severity of the impact, the amount of property damage, the severity of the injury, and any residual medical problems you may have from an accident.
In my experience, it's always a tough decision whether or not to get the police involved at the scene of an accident. Typically speaking, you will call the police from the scene of the accident and they will ask you whether or not anyone was injured. If there are no serious injuries, most people say, "No." Truthfully, if no one has any immediate serious injuries, the inclination might be to say "No, there are no injuries." If that is the case, the police will generally advise you just exchange information and go on your way.
However, many insurance adjusters will use the lack of police report at the scene as evidence against you if you later claim injury from the car accident. That can backfire if you discover your injury at a later date. In fact, some serious injuries can manifest themselves later on, once all the adrenaline has passed etc. Of course, you don't want to mislead the police officers into thinking you have an injury when you don't. By the same token, you don't want to be extra brave and foolish by declining police assistance at the scene if you have some possible injury. In fact, this is not the time to be brave and "suck it up." It is however time to document the injury and the accident. Again, so many insurance adjusters will use the lack of the police report against you - as evidence you were not injured since the police did not take a report. Therefore, think long and hard before you decline assistance from a police officer at the scene of accident.
by Robert Mansour
Robert Mansour is a personal injury lawyer serving Santa Clarita, Valencia, Saugus, Canyon Country, Newhall, Stevenson Ranch, Castaic and surrounding communities.