Whether or not you should file a lawsuit in your personal injury cases depends on many factors. However, if your case is solid, and if there is a strong likelihood a jury would return a verdict well in excess of your costs/fees, it might make sense to file. In California, a personal injury lawsuit typically goes through several phases, including:
Certain companies are more reasonable than others. Several years ago, Infinity Insurance (now with Kemper Insurance) was the most difficult insurance company to deal with. They didn’t want to pay any money to anybody (even if your head popped off your body and rolled down the street). Then it was Mercury Insurance. Mercury Insurance didn’t want to offer any more than $500 to anyone. It was a joke among lawyers.
It seems that insurance companies take turns being unreasonable. In fact, when I was a volunteer mediator with the Los Angeles county court system, I often declined serving as a mediator when the insurance company involved was Mercury. I believed that they wouldn’t come to the table in good faith. Then, State Farm was the difficult one. In fact, I was a lawyer for State Farm when that was the case. It was frustrating how the company made lowball offers in cases where the other party was clearly significantly injured. It wasn’t about valuing the case properly. It seemed to me the insurance adjuster was only concerned about saving money for the company (as if they were paying out of their own pocket). Invariably, these tactics come back to haunt the insurance company. These tactics forced cases to trial. For a long while, juries sided with the defense most of the time. Unless a client had significant injuries, juries didn't want to give substantial awards. The insurance companies knew this and figured they would win most of the time. Recently, some juries have been awarding significant awards to injured people, causing the insurance company to reevaluate their obstinate position. But like a pendulum, every company goes through these changes. Also, keep in mind that while the culture of an insurance company may be a certain way, there are still insurance adjusters out there who think independently and are fair. Typically they are quite experienced and not looking to simply save a dime for their employer. They have seen too much and are often much more reasonable in their evaluations. So don’t forget to factor in the human component that affects the evaluation of injury claims. After a car crash, you might be wondering about how to fix your car. If you have collision coverage under your own automobile insurance policy, you can have your company fix your car. However, you will usually incur a deductible if you do so. That means you have to pay the first $500 or $1000 in costs to fix the car (these are common deductible amounts).
Eventually, your insurance company will typically go after the responsible party's company for reimbursement of what they paid to fix your car. They will also typically pursue reimbursement of your deductible. Therefore, while you may have to fork out the deductible at the beginning, you should eventually get a refund from your insurance company a few weeks later. Sometimes it takes longer so be mindful and check in with your insurance company periodically about the refund. If liability is clear, the responsible party's insurance company may also fix your car expediently. Give them a call and make a property damage claim. Don't get into a discussion about your injuries. Be civil and keep it about the property damage. If liability is clear, there shouldn’t be much investigation to do, and you can take your car to one of their approved body shops (although you have the right to take it to any shop you want). It has been my experience that using the approved shops of the insurance company is usually fine, so long as they are reputable. If you use a shop that has not been vetted by the insurance company, it just may take longer to get your car fixed. It’s really up to you but you should weigh the pros and cons of each approach. If you utilize the other insurance company, you won’t have to incur a deductible. What I usually advise clients to do is to use the responsible party's company when liability is clear. If it’s going to take too long, and you need to get their car fixed as soon as possible, you may want to utilize your own insurance company because that may be quicker and more efficient in the long run. Of course, each situation is unique and these general rules don’t always apply. Feel free to reach out to our office for advice if you need to. When you get into a car accident, bad things happen to you! The law calls those "bad things" your "damages." So if someone causes an accident, but nothing bad happens to you, not even a scratch to your car, then you technically have no "damages" because although the accident happened, it did not negatively affect you in any appreciable way.
The law breaks damages down into two general components. There are "economic" damages (sometimes called "special damages"). Those are measurable damages that include your hospital bills, lost income, property damage to your car, etc. Just because you have a bill from a doctor doesn't mean the responsible party has to accept that bill as the gospel truth. For example, if I go to Urgent Care after an accident, and they charge me $500,000 for the visit, the responsible party doesn't have to accept that. They will likely argue my "economic" damages are unreasonable. Also, let's say I suffer a minor sprain from an accident but I decide to go to a chiropractor for 12 months at $70/visit. The per visit charge might be reasonable but the responsible party may challenge the fact I went to the chiropractor for 12 months for a minor accident. However, that said, economic damages are one facet of damages. The other facet of damages that is often overlooked by people (and insurance adjusters) is the non-economic part. This is sometimes called "general damages" or "pain and suffering." The focus of this type of damage is the EFFECT of the accident on someone's life. Now, typically there needs to be an appreciable injury for most people (i.e., insurance adjusters and juries) to entertain giving someone compensation for general damages. If you have a tiny scratch to your bumper, most folks aren't going to give you general damages because they simply won't buy that a scratch to your car had any appreciable "effect" on your life. However, if you have moderate to severe damage and you have an appreciable injury as a result, then people are generally more open to discussing general damages. There is a simple story I tell folks to help illustrate the concept of general damages. Imagine if someone was involved in a moderate accident that totaled their car. Imagine if that person was hurt and went to the emergency room. Then that person got treated by doctors, physical therapists, had xrays, etc. After the person was done treating for his injuries, let's assume his medical bills (economic damages) came to $10,000. Most people probably wouldn't have too much trouble compensating this man $10,000 for those bills. They would see that as a reasonable "value" of his case. Perhaps you share that opinion as you read this blog post. However, what if I told you that this very same man is now in a wheelchair for the rest of his life? Would you evaluate his case any differently? Would you feel OK simply valuing his case at $10,000? Probably not. Why? Because now you have information about the EFFECT of the accident on his life. You would probably want to compensate him a lot more than $10,000 because his non-economic damages are MUCH higher than his economic damages. While economic damages are easier to assess and evaluate in most cases, it's harder to come up with an appropriate value for non-economic damages. It's quite subjective. In most cases, the injured person has a much higher value in mind because they are the ones dealing with the issue every day. Others may not be as sympathetic. There is no magic formula. People have to do their best to be "reasonable" when evaluating non-economic damages. I always tell juries that they will never be 100% sure the number they come up with is absolutely the correct number. After all, there is no such thing as the "correct" number. However, the number has to be "more likely than not" a reasonable number. That's the standard in civil cases. The point of this blog post is not to provide you with any kind of formula for non-economic damages. The point of the blog post is to remind the reader that the law generally allows for TWO types of "damages" - economic and non-economic. The latter is the one that often has the most value and is most often overlooked or undervalued by insurance companies and others. Just be mindful when approaching any personal injury case of those two components of damages. VIDEO TRANSCRIPT:
Hello everyone. This is Robert Mansour and I want to welcome you to the forms page. Once you click on "Download the Forms," you're going to see the forms here. It's 10 pages that you can print out, but I want to walk you through it and help guide you here. So what's important to note is only sign the forms where you see an X. There's going to be other stuff there, but don't fill that stuff out. We will take care of that stuff. But wherever you see an X, please date, sign, etc. If you're not sure how to do something or you're confused about something, please call my office and we will walk you through it. The first thing is the actual contingency fee agreement. The contingency fee agreement means that the lawyer gets paid if I recover money for you from the accident. So the first section here is a matter of covered services provided information about filing a lawsuit. If we decide to do that, associating other attorneys in your case, if that's necessary - No guarantees, litigation, costs and expenses. Important information about medical expenses that you might incur a little bit more about the actual contingency fee itself, the attorney's lien - withdrawal from the case by either party. If there's a dispute, there's an arbitration clause. Further agreements, file retention and client acknowledgement. So you just sign at the bottom. Now if there's more than one client signing up, so for example, if there's two people, client number two would sign where indicated. We even have a space here for three people. If you're signing on behalf of a minor, make sure you sign as shown on the form. We have some guidance there for you. And at the very bottom of the retainer agreement, we ask that you put your best mailing address, your best phone number and email account you check regularly, not one that you check every few months and your birth date. Next is the agency authorization form. This form allows my office to represent you and insurance companies and others will not talk to my office unless you fill this out. And again, just the bottom part where you see the X's. Now for each client, you're going to need a separate form for this one. Authorization to provide information - This one is used if you need our office to obtain the police report. If you didn't get your hands on it already, or if you're going to be making a claim for lost earnings, this might be helpful for you to fill out. And again, only where you see the X's on the bottom and we need one for each client. Next is something called the HIPAA compliant authorization form. And this is basically allowing my office access to your medical records from various medical providers. Some places may have their own authorizations and we will deal with that when the time comes. But all you need do is fill out where you see X's on the second page. And if you're signing on behalf of a minor sign on the bottom and for each client we will need a separate form. Finally, and perhaps in my opinion, most importantly is the Client Responsibilities form. And I can't tell you how important this is. This is a whole bunch of tips and advice about how to handle your injury claim and how to best approach your injury claim so that you can maximize your chances of a successful outcome. Now, this is not going to guarantee a successful outcome, but if you do the things that are on these two pages, it's going to help a lot and it will make my life a lot easier as your attorney. So I want you to pay very special attention to these responsibilities and these tips. Read it very carefully. If you have any questions about them, please let me know. If you want me to walk through it with you, I would be happy to. And then date, sign and print your name at the very bottom of the second page. Once again, I cannot emphasize how important these two pages are. Once everything has been signed and returned to my office, we can then begin with your representation and we will walk you through all the other steps after that. Thank you very much for taking the time to watch this. I hope you found it helpful. Take care. A mistake I often see when people are involved in car accidents is that they launched into "action mode." They start contacting insurance companies, posting photos online, and doing other things that may come back to haunt them later on if they should pursue a claim. The most important thing to do if you've been involved in a car accident is to make sure you have all the appropriate information so that you can make educated decisions. Thi is not the time for hasty actions. Acting too quickly without all the relevant information might lead to poor decisions.
Of course, you should do all the basic steps (and there is a wealth of information about that on this website) - you have to take photos of the damage to your vehicle, photos of all your injuries, and make sure you understand all the coverage that is available to you through your insurance policy as well as the responsible party's insurance policy. Don't be too eager to talk to insurance companies immediately after an accident. While calling your insurance company is often a good idea, I would strongly recommend you talk to a lawyer first to understand what all your options are and how the "system" works. It's like taking a road trip in an unfamiliar area - you want to make sure you have a map BEFORE you hit the road - and not try to figure things out as you go along. When you understand how the system works and what your options are, that will definitely help you plan your next move. If you immediately launched into "action mode," you might make some mistakes that will blow up in your face weeks down the line. You need to obtain a police report, obtain photographs of the scene as well as photographs of all the cars that were involved in the accident, immediately seek medical attention if you are injured, and don't be too quick to talk to the insurance companies within 24 hours of the accident. At the very least, do some research and find out what your next best step is going to be. Oftentimes, people think the insurance adjuster is on their side. If you are contacting the insurance adjuster for the responsible party, rest assured they do NOT have your best interests in mind. They are interested in protecting their client (their insured) and even more importantly, their employer which is the insurance company. If you contact your own insurance company, they are more likely to be in your corner because your interests are often aligned. However, I would maintain that even then, your insurance adjuster's primary allegiance is not to you, but to his or her employer. I don't mean to be cynical. However, if you proceed cautiously and with the education you need to make informed decisions, you are less likely to make mistakes and less likely to act on emotion or impulse. After an accident, people are angry and frustrated. Decisions made in anger or frustration can often lead to unintended results. Therefore, make sure you have all the available information and talk to professionals who can guide you before you make decisions that may affect you in the long run. Like I said earlier, if you "map" things out first, you are less likely to make mistakes during the journey that follows your car accident. If you need help and have been seriously injured in an auto accident, get the advice of an experienced personal injury attorney. You don't have to hire anyone. Any lawyer who pressures you to hire them should be avoided. Talk to someone who can help educate you so you can make informed decisions that are not based on emotion or impulse. This website has many articles and videos that can help guide you. Many clients don't know what to do after a car accident. They think the insurance adjuster is going to do everything for them - from arranging to fix their car, to renting them a car, to providing them with medical care. Here's something you should know: NEVER assume the insurance adjuster is going to do ANYTHING for you. You are the captain of your own ship. It's your responsibility to manage your case (unless you hire a lawyer, in which case they will manage your case. However, they will STILL need your help to do so).
If you call your own insurance company after an accident and inform them of the accident (which we do recommend), they will make a note of it in their file. You want to keep them informed and your insurance contract likely requires you report accidents. However, unless you have collision coverage for your vehicle, your insurance company is not going to fix your car. In fact, most of the time your insurance company will recommend you contact the responsible party's insurance company and ask them to fix your vehicle. There are several reasons why they might recommend you pursue the other party's company: (1) If you choose to pursue the other company, your insurance adjuster doesn't have to do anything. They basically send you elsewhere to solve your problem; (2) You may not have collision coverage on your vehicle in which case your insurance company will never fix your car; (3) If you choose to have your company fix your car, you might have to pay a steep deductible, in which case it might be better to pursue the responsibly party's insurance company because you won't have a deductible. Another thing people do is wait for the insurance company (whether it is their company or another company) to arrange for their medical care. Once again, the insurance company is NOT going to arrange for your medical care. They are not your doctors nor are they responsible for arranging for your medical care. You are waiting for something that is never going to happen. You have to arrange for your own medical care. You have to decide what resources you are going to use to pay for such medical care. Either you can (1) pay out of your own pocket, (2) use your own health insurance, or perhaps (3) tap into the medical payments coverage available under your own policy if you have such coverage. Some medical care can be provided on a "lien" (where you promise to pay the provider later, usually out of the insurance settlement). The insurance company for the responsible party is not going to take care of your medical bills as they come due. If you are waiting for a car insurance company to arrange for your medical care, you will be waiting for a very long time! Some clients mistakenly believe the insurance company has their own doctors - so they wait by the phone, hoping to hear from someone. I recently spoke to a client who had been waiting four months since the accident - thinking the insurance company was going to "take care of" her medical care. In the meantime, her health was declining and she was waiting for something that was never going to occur. Some clients also wait by the phone for the insurance company to fix their car. That is also not going to happen unless you make an affirmative request of the insurance company to fix your car. At that point, they will assign a property damage insurance adjuster who will assist you. The main point is that insurance companies generally won't do anything for you unless you affirmatively ask them to do it. They are not going to call you and proactively manage your matter for you. Generally speaking, when it comes to property damage, you have to move the ball down the field on your own. The insurance adjuster will help you, but they are not going to volunteer to do the work for you unless you ask them to do so. If you are working with an insurance adjuster, make sure you are clear about "next steps." You must ask things like, "When will I be hearing from you on this issue?" Never ASSUME what the next step is going to be. I would comfortably say that 50% of the time, your idea of "next step" is different from the insurance adjuster's idea of "next step." Don't leave things to the imagination. Get a clear answer and don't be shy about asking questions. The same thing goes for medical care. You are responsible for your own medical care. The insurance adjuster is not going to arrange for it. The overall point of this article is this: You are responsible for your own case. You have to affirmatively ask the insurance adjuster (at your company or the responsible party's company) to do things. There are many helpful adjusters out there who will assist you. However, waiting for the phone to ring is usually not the best course of action. VIDEO TRANSCRIPT:
Hello everybody. This is Robert Mansour . Today I wanted to make a video about how uninsured motorists works. If you have uninsured motorist coverage on your auto policy, which I hope you do ... It a very important piece of insurance, you have to understand how it actually works. Let's say you have uninsured motorist of say, $15,000. What that means is, if the responsible party in the accident has zero insurance - doesn't have any insurance at all - at least you can turn to your company and say, "Hey...the responsible party was uninsured. Therefore, my uninsured motorists policy should apply." You will get coverage up to $15,000. Now that doesn't mean you'd get a check for $15,000. That means that they will pay up to $15,000. If your case is worth say, $5,000, they're not going to pay you $15,000, even though they are your insurance company. That's the limit - $15,000. Now, let's talk about how uninsured motorist policies also work. Uninsured motorist is often equivalent to something called underinsured motorist. What is underinsured motorist? Underinsured motorist, is when the other part has insurance, but they don't have enough. Let's say you have a serious injury, and let's say your case is worth say, $100,000 for the case of our discussion right now. Let's say the other party, the responsible party, had $50,000 in coverage. Well, what you could do is you can take the $50,000 from the responsible party, provided they offer it to you. And then what you can do is then you can turn to your company and say, "Hey...the responsible party only had $50,000. My case is worth more than that. I would like to tap into my $100,000 underinsured motorist policy." Now, often times you will see it on your policy. It'll say, uninsured/underinsured (UM/UIM). They often go together. How does that work? Well, your insurance company would then open a claim for you, or you would open a claim and they would help you with that. And then, they would say, "Okay, you got $50,000 from the responsible party. We think your case is worth $75,000. You might say, "Well, I think my case is worth $100,000. I should get all the money!" They say, "Well, we don't agree with you." You can see there could be a disagreement between your company and your evaluation, or your company might agree with you. Your company might say, "Yeah...your case is worth $100,000" or they might say, "You know what? You got $50,000 from the responsible party. That's enough. We don't think your case is worth anymore than $50,000. We think you've been adequately compensated." Here's the thing. Even though now we understand that you and your insurance company may have a difference of opinion. Here's how it would work mathematically. Let's say for example, you and your insurance company agree that your case is really worth $75,000. Don't forget you have a $100,000 policy available to you. If they and you agree, $75,000, what they do then is they subtract what you got from the responsible party. In our example, you got $50,000 from the responsible party. What that means, is they would say, "Okay, $75,000 value, minus $50,000 you got from the responsible party. We will give you $25,000." If you add the $25,000 to the $50,000 you got from the responsible party, that equals $75,000. Your insurance company effectively gets a "credit" for what you got from the responsible party. Now, that stands to reason. Remember, if the responsible party has zero, your insurance company's going to subtract zero. They're going to pay you the entire amount that you and your insurance company agreed to. Now, if you an your insurance company cannot agree to the value of the case and you think it's worth $100,000 or $200,000 or whatever, and they think it's worth $75,000 - well in that particular case, what most often happens is you might have to enter into something called "arbitration" with your company. You and your insurance company basically go to battle with one another - but in the context of arbitration, which is a little, bit less formal than going to court. You would hire an arbitrator that both sides agreed to. The arbitrator would hear the case. Usually this arbitrator is a retired judge in most cases. They hear the case. They listen to both sides just like a "mini trial" and then they make a decision that both sides have to live with. That's a little bit of an explanation as to how uninsured motorists and underinsured motorists work. I hope you found this video helpful. Thank you very much for watching. 1. Don’t post anything to social media (Facebook, Snapchat, Instagram, Twitter, etc). Be mindful of what you post since the insurance companies WILL definitely be researching you online. It is best to stay off social media entirely while your matter is ongoing. It's amazing to me how many people post photos online after their car accident. They will post photos of the accident and say, "Big accident today, but I'm fine...LOL" - and then the insurance adjuster finds that posting and uses it against the client in the future. I had a client one time who was a drummer in a band. He hurt his shoulder in the accident but later posted videos of himself drumming on YouTube and Twitter. He explained his band was trying to get attention and I had to explain to him that the insurance company found those videos are are accusing him of lying about his injuries. Even photos of you having a nice time on a family vacation can be used against you. The insurance company will argue that you are not very hurt if you can go on vacation with your family!
2. DO NOT LEAVE YOUR CAR at a storage/tow lot. Storage/tow lots charge ridiculous storage fees. Don't assume the insurance companies are “handling” this. You need to get your vehicle out of the storage lot as quickly as you can. Basically, if you want your company to fix your car (and you have the applicable insurance coverage for that), then you need to call your company and they will go get the car out of storage and to their own storage facility or their own storage lot. If you want the responsible party's company to do so, you should call them and make a property damage claim. However, if the responsible party's company is going to drag their feet or they haven't yet determined fault, you don't have time to wait around. You should see if your company can handle the property damage. If you're worried about incurring a deductible, weigh that against incurring daily storage fees at the tow yard. In many cases, your company will seek reimbursement from the responsible company and ultimately reimburse your deductible. In some cases, your company might even waive the deductible. 3. Don’t speak with ANY adjusters about your injuries without consulting with a lawyer. In all my years as a lawyer, for both the defense and for the plaintiffs, I've never seen this work out well for a client. Insurance adjusters are trained at minimizing your claim (even if it's an adjuster from your own company). They sound friendly and concerned but they are not. That's not to say all adjusters are unfair, but I would err on the side of caution every day of the week. 4. Avoid renting a car on your own! Discuss with us first! Many folks will rent a car thinking they will get paid back by the insurance company. Even with rental coverage on your own auto policy, that doesn’t mean you can rent a car for $60 per day. You need to be aware of limitations your policy. Whenever possible, rent a car through the company. In other words, you simply provide a claim number at the car rental agency counter. Whenever possible, you want to avoid paying out of pocket then hoping for reimbursement. 5. Don’t skip health care appointments. Simply put, insurance adjusters will argue you weren’t really hurt because you canceled and/or missed your health care appointments. You might have a very good reason for missing the appointment, but as far as the insurance company is concerned, you must be fine and don't need health care if you missed the appointment. Try to reschedule any missed appointments and document with the health care provider why you missed the appointment. Call them and explain so it can end up in your records. Don't just skip the appointment without any explaination. 6. Don’t ignore bills from a hospital, ambulance, ER, or other providers. You are responsible for these bills. You can't just throw these bills in the trash and assume the responsible party is going to pay for them. These bills are for services rendered to you and they are your responsibility. 7. Take photos of car damage and physical injuries right away. The insurance company's job is to make your claim and injuries looks small. Photos of injuries and vehicle damage can help fight that. Take photos every few days of any visible injuries to demonstrate to the insurance company that your injuries didn't simply go away the day after the accident. That impresses upon them the severity of your injuries. Remember, documentation (especially photos) is the key in these types of cases. 8. Get medical care if you are injured. If you don’t get medical care, or if you wait too long, the insurance adjuster will simply maintain that you were not injured. You could be at home in excruciating pain, but without treatment or other medical care, they will simply assume you are doing just fine. 9. Your medical history is important. Inform your doctors and other health care providers of any aggravation or exacerbation of a similar previous injury. You cannot ignore or hide your medical history. If you had similar prior injuries but you deny them, that prior history may surface one day and it might look like you are lying. That will sink your entire case. Don’t ignore your medical history. It may become important – even if you had pain years ago. I had a client recently who alleged severe neck pain after an accident. She denied ever having neck pain before the accident. In reviewing her prior medical records, I found that she had CHRONIC neck pain 2 weeks before the accident. When I confronted her, she said she forgot about that. Well, needless to say, her case imploded because she sought to hide her prior pain. People don't like it when you lie (or selective memory). In fact, doing so can destroy an otherwise excellent case. 10. If you can't work, get a note putting you off work. You need a doctor's note for each period you are unable to work. Insurance companies generally ignore claims for lost earnings unless you were following doctor’s orders. If your claim is smaller, say $500 or so, that might not be a problem. However, if you are going to ask for significant lost earnings, then a doctor's note is much more important to have. 11. If you use your own health insurance for any accident care/treatment, your health insurance company will probably be entitled to reimbursement if you recover money from the responsible party. They will typically hire a third party recovery company to pursue reimbursement. Companies often used are “Meridian”, “Rawlings”, “Optum” etc. The right to recovery extends automatically to Medi-Cal and Medicare. 12. You MUST tell your doctors about ALL injuries. Be extremely specific. If something isn’t documented, it probably won’t be considered by the adjuster. The most important thing when it comes to your medical care is proper documentation! Each body part that is injured has a diagnostic code related to it. Insurance adjusters often use computer software when evaluating your claim. Each body part is assigned a value by the software. I had a client once who didn't want to bother the doctor by complaining about his shoulder. He explained his neck was his primary concern. A few months later, he needed shoulder surgery but the insurance company dismissed his contention because he never mentioned shoulder pain to the doctor. It's not time to be stoic. I encourage clients to mention ALL injuries to their health care providers, not matter how trivial the complain may seem. 13. How an accident affects your daily life activities affects the evaluation of your case. You must inform your doctors of any daily life activities affected by your accident. This includes work, home, school, etc. Remember, your records should document all the effects of the accident. Keep a journal regarding how your daily life is affected. Give your notes to your attorney. You might even consider showing the doctor your notes. If something isn’t in your medical records, it likely won't even be considered by a claims adjuster. |
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August 2023
by Robert MansourRobert Mansour is a personal injury lawyer serving Santa Clarita, Valencia, |
Call 661-414-7100 or text 661-249-9990
