As a personal injury lawyer in the Santa Clarita, CA area, one of the things I always have to make sure I do as a lawyer is clear any and all liens that might be attached to a person’s injury case. Therefore, before I make a demand from the other party’s insurance carrier, I have to make sure all those parties and entities that might have a lien are resolved. Here are some things to consider:
1. Did my client’s car insurance company pay any money for the medical treatment? Many of my clients have something called “Medical Payments Coverage” under their own insurance policy. In some cases, this “MPC” coverage pays for the medical bills. If so, I have to make sure that we address their reimbursement. Sometimes, they are willing to waive reimbursement under the right circumstances. 2. Did any of my client’s medical providers work on a “lien” basis? If so, they need to be paid for their services. If the doctors work on a lien, that means they provided care with the anticipation they will be paid from a potential settlement. 3. Did my client’s health insurance company pay for any care? If so, most health care companies have the right to reimbursement. Therefore, those issues need to be addressed as well. Before making a demand for settlement and/or actually settling my client’s cases, I have to address all existing and potential liens on the case. Otherwise, my clients might be facing an unpleasant surprise later. After an automobile accident, the insurance company for the other party will probably call you and ask you to give a recorded statement. As a general rule, I am not in favor of giving these kinds of statements, especially so early on in the case. The sad truth is that the insurance adjuster doesn’t really have your best interests at heart. They will generally sound very sympathetic and express their desire to help you in any way possible. They will try to encourage you to give them a recorded statement, sometimes only a day or two after the accident has occurred. In many cases, they are trying to box you into a story.
In some cases, the insurance adjuster will try to use your statements against you. They can easily get the police report and find out what happened so there is really no pressing need to speak to you. Keep in mind you may not yet fully appreciate the extent of your injuries so soon after an accident. If you don't report injury (the existence of an injury or the extent of an injury) then a later claim of injury may appear contradictory to your earlier statement. Some insurance companies actually have a policy that any information gained from the recorded statement can be used later to deny the claim or pay out less than the claim actually deserves. As the old saying goes, "anything you say can be used against you." I usually tell my clients not to panic. There is no “fire in the barn” or other emergency that makes it necessary to give a statement so early on in the case. I tell my clients to politely decline and tell the adjuster that you will call them when you are prepared to give a statement. There is no need to get into an argument with the adjuster. If you have a lawyer, then you don’t need to speak to anyone at all and your attorney will handle it. I spent much of my career as a defense attorney for the insurance companies. In my years of experience (as a defense lawyer and plaintiff's lawyer), I have rarely found it to be helpful to give a statement to the opposing party’s insurance company so early on in the case. Your first order of priority is protecting your interests and making sure that you get the medical care that you need. There are times when giving a statement is necessary or prudent. If you are talking with your own company, then you probably have to cooperate with them. They are usually on your side as they have a duty to you that the other insurance company simply doesn't have. However, you should still be careful what you say as it may come back to haunt you. Speak to an experienced lawyer first. You have nothing to lose. Learn what your rights are first before you make a decision to speak with the insurance adjuster. Whenever I meet with personal injury clients for the first time, I impress upon them how important it is to seek medical treatment as soon as possible after an injury has occurred. But also I impress upon them the importance of making sure they attend every single treatment session and doctor’s examination. Insurance companies routinely examine medical records with a magnifying glass. Although insurance adjusters are not medical doctors, they are looking for signs they can use to minimize your claim. The first one that I’ve mentioned before is the gap from the date of the accident to the date of the first treatment. How much is too much time? In my experience, if you wait more than 10 days before you seek active care from a medical provider, you’ve probably created some problems for your case.
However, also very important is to make sure you keep all your appointments. We are all very busy people with busy lives. We have jobs that demand a great deal of our attention, spouses who demand time from us, and children who certainly need our attention. However if you skip appointments and there are significant gaps between treatment sessions and significant gaps between examinations, the insurance company will use those gaps against you as evidence that the injury wasn’t bad enough for you to go the doctor on a regular basis. Keep in mind, from the date of the accident you entered into a war between you and the insurance company for the other party. They are not your friend, and there are rarely there to help you. They are there to save the insurance company as much money as possible. They will do that by using every trick in the book including examining your start date for treatment as well as using any major gaps against you. Canceled appointments at the doctor’s office and gaps between treatment sessions can come back to haunt you when it comes time to settle your case. If you need assistance with after your car accident or help with a personal injury case, call personal injury attorney Robert Mansour for a candid evaluation of your matter. After an accident, tell your doctors of your injuries RIGHT AWAY!!! Don’t wait! The longer you wait, the more like it is the other party will doubt your claim for injury. It’s NOT the time to “tough it out” or “see how you feel in a few days.” Right now, I have a client with a torn rotator cuff who is being raked across the coals by the insurance company because he waited 2 weeks to mention the pain to anyone!
By the same token, if you are not injured, and you are certain that you are ok, then there is no need to involved a medical evaluation. However, if you are indeed hurt after an automobile accident, this is not the time to be brave. Your bravery can come back to haunt you. Therefore, at the very least, go get examined by a doctor and make sure you don’t have any serious injuries. I’ve had clients postpone their care only to find they actually had a serious injury. Try convincing an insurance adjuster that you didn’t discover the injury until weeks later and that it is indeed related to the accident. Your delay only serves to hurt you. If you have a car accident case, you better have some visible property damage. I had a client call me recently. He got bumped in a parking lot. When I asked him about the extent of the property damage, he explained that it was hard to actually see the damage. In fact, his car looked just fine. However, he explained that the bumper was damaged and one would be able to better understand the damage once the bumper was removed and examined more closely. I told him that juries don’t want to examine bumpers closely. They want to easily see the damage to your vehicle. Juries don’t want to “work” to see your property damage. They don’t want to squint. If they have to squint to see the damage, then it is going to be a very uphill battle to persuade them the impact was significant enough to cause injury.
I’ve done enough jury trials to know that if the jury can’t see damage to your car, then 98% of the time, you’re going to lose your case no matter how significant the impact was. I’m not saying it’s fair….I’m saying it’s just the way things are. I’ve spent much of my career as a defense lawyer. I never lost a trial where the plaintiff had no visible property damage…no matter how hard they tried to explain things. That is why I can’t take a personal injury case unless there is some degree of visible damage. Of course, take pictures of any physical injuries you have as well. After a car accident, you are certainly free to use your own health insurance company to pay for your health care costs. In many cases, by using your own health care provider, your case becomes more “credible.” Sometimes, claims adjusters and juries frown on “attorney-referred” doctors. They infer, usually incorrectly, that the attorney is running the show and sending their client to doctors. However, in some cases, that is the only the option a client has if they don’t have their own insurance. Also, some clients have to wait weeks or months before they can see a doctor due to their particular insurance plan. By using a doctor who is attorney-referred, a client can usually get medical attention much faster. When you see a doctor on a lien, the doctor is essentially deferring his/her payment until you recover money from the responsible party. Once you settle your claim, the doctor’s office will expect payment.
If you are involved in a car accident, make sure you get a copy of a property damage estimate. If you’ve been involved in a car accident, it is very important to obtain a copy of the property damage estimate. This is especially important when the visible damage to your vehicle doesn’t tell the whole story. An itemized property damage estimate will help outline all the parts of your vehicle that were damaged as a result of the automobile accident. You can use that to your benefit when arguing to an insurance company that the impact was major. What is most important to my analysis is a finding of frame damage. That information is usually contained near the end of the estimate.
Some clients tell me their car was totaled and their insurance company did not prepare an estimate. Even in those cases, you want to get a property damage estimate if you can. Again, you want to validate and confirm the severity of the impact by noting what exactly was damaged. Make sure you also take pictures of all the damage to your vehicle from a variety of angles. Sometimes, one angle simply doesn’t do justice, and people may doubt the nature of the impact. Remember you are trying to impress an insurance adjuster, and they want to see more evidence than most people. If you’ve been involved in a car accident, don’t forget to take photos of any visible injuries you might have…no matter how trivial. You can talk about your injuries all day, but when it comes to convincing an insurance adjuster, pictures truly do speak a thousand words. Remember I use to work for the insurance companies as a defense lawyer, and I know how persuasive good photos can be. Insurance adjusters have supervisors who review their decisions and actions in most cases.
If they cut you a large check, they are going to need documentation in their file as to why they did so. Insurance adjusters generally won’t pay you out of the goodness of their heart. Take photos of bruises, cuts, scrapes, or worse. If you can’t do so, have a friend or family member help you. Make sure the photos are taken from several angles and they truly capture the injury. Don’t wait till the injury fades, or else you will be out of luck telling stories to people who, as a general rule, need to see to believe. California Vehicle Code section 22350 is known as the basic speed law. You need to drive a “reasonable” speed for the circumstances. The fact you were driving the speed limit is not, in itself, a defense. The posted limit is the MAXIMUM speed but not necessarily the “reasonable” speed.
I had a case a few years ago where I represented a gentleman who was turning left at an intersection. It was one of those cases where vehicles in the opposite lanes stopped to allow him to turn due to congestion. A woman driving in the opposite direction in the curb lane was driving 35 mph and slammed into my client as he was making his left. His vehicle flipped over twice due to the speed of the impact. She brought suit against him arguing that he made an unsafe lane change. While she was probably correct, we were able to convince a jury that she was also driving too fast. She countered that she was driving the “speed limit.” However, we convinced the jury that the basic speed law says you must drive a “reasonable” speed under the circumstances. If all vehicles to your left have come to a stop, there must be a reason, and continuing to drive the maximum speed limit of 35 was probably imprudent. The jury found her 35% at fault for the accident. After a car accident, think twice about giving a “statement” to the other party’s insurance company. In all my years as a lawyer handling accident cases for both defendants and plaintiffs, I don’t think I’ve ever seen the statement being helpful to the person giving it. It is usually used against them. Generally, you have no legal obligation to give a “statement” to anyone.
Usually the other party’s insurance company will call you with a very friendly tone. They will explain they just want to “learn” more about the accident and they will ask your permission to record your statement. Why would they “record” anything if all they want to do is learn about what happened? They record it so you can’t change or modify your position later on during your case. They usually contact you shortly after the accident, when you may not fully appreciate the extent of your injuries. While there might be some insurance adjusters out there who are truly interested in finding out what happened, there are also some who want to box you into a story. They will ask, “How are you today?” and you will say, “Oh, I’m fine, thank you.” After all, you are being polite…but your words may be used against you. A few weeks later when your back is still hurting, they will say, “Wait a minute, we spoke a few days after the accident, and you said you were ‘fine’….” This may exaggerate the point, but I hope you see where I’m going with this. There are times when giving a statement is useful and necessary. It also depends on the integrity of the insurance adjuster handling the case. Consult with an experienced lawyer before you decide to give the other party all the information they are seeking. I am a personal injury attorney in the Santa Clarita area. If you need my help, please feel free to call. If you want to learn more about what to do after a car accident, give me call as well. |
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