The Complete Guide to Car Accident Injury Claims

1. Introduction

We wrote this car accident injury guide for you. Yes, you.

You or a loved one has been hurt because someone else was driving carelessly. You are probably overwhelmed, frustrated, and searching for answers. Breathe deep. Now that you have found this guide, you are on the right path to finding answers.

Here’s what will we be covering in this Complete Guide to Car Accident Injury Claims:

• Fundamentals of Personal Injury Law
• First Steps to Take After a Wreck
• Know Your Enemy – Common Insurance Company Tactics
• Types of Insurance Coverage
• Handling Your Own Injury Claim
• What’s Your Personal Injury Claim Worth?
• Pros and Cons of Hiring a Personal Injury Lawyer
• How to Choose the Right Personal Injury Lawyer

First, and most importantly, you have to know going into this process that you are facing an uphill battle. The insurance company has thousands of trained professionals who are all trying to pay you the least amount possible. They get bonuses and promotions for not paying you a fair amount.

The insurance adjusters take hundreds of hours of training courses to learn how to short you. Many of them have been handling injury claims for decades and are seasoned professionals. So beware — the deck is stacked against you already.

We hope that at the end of this book, you will be a little less confused. And if you still haven’t found the answers you’re looking for, just pick up the phone and call us. It won’t cost you anything.

Let’s get started!

2. Fundamentals of Personal Injury Law

Statute of Limitations

The first thing to know, and the most crucial, is that an imaginary clock starts ticking as soon as the wreck happens. This clock is called the statute of limitations. A statute of limitations is the time period in which you have to either get your claim settled or file it as a lawsuit in the appropriate court system. If the claim has not been settled and has not been filed in court within the relevant time period, then the statute of limitations bars you from continuing your claim.

The amount of time you have depends on where the wreck occurred. We practice law in Alabama. In Alabama, the statute of limitations is typically two years from the date of the wreck.  There are some variations on this, notably shorter limitations when the person who caused the wreck was a city or county employee  (If you were hit by a city or county employee, call an attorney immediately!)

If you are trying to handle your own personal injury claim, keep in mind that the clock is ticking. If you think you are going to end up needing an attorney, you should contact one at least a few months before the expiration of the statute of limitations period so that they can do their due diligence on the case before having to file a lawsuit.

And remember, if you haven’t settled your case in the statute of limitations period and also haven’t filed a lawsuit, your claim is over. No “do-overs.” The statute of limitations doesn’t care that you forgot to file the lawsuit.  It doesn’t care that a family member had a serious illness. It doesn’t even care that you are still having to get medical treatment related to the wreck. The statute of limitations is unforgiving. So don’t forget the imaginary clock!

Negligence

Negligence is a legal doctrine that you, as the injured person, must prove to be entitled to any compensation if you were hurt in a wreck. You can only hold the other driver liable if he was indeed negligent in causing your injuries. Think of negligence as a recipe that has 4 ingredients:

1. Duty
2. Breach of the Duty
3. Causation; and
4. Damages

If you are missing one of the ingredients, you aren’t entitled to compensation. Let’s take each of these ingredients in turn:

1. Duty – in car wreck personal injury claims, you have to prove that the other driver had a duty to operate a motor vehicle in a reasonable manner. All states have statutes referred to as the Rules of the Road which govern how we are supposed to drive.
   We all have a duty to abide by the Rules of the Road and to drive in a reasonable manner.
2. Breach of the Duty – proving a “breach” is simply showing that the other driver didn’t follow a Rule of the Road or did something else that was unreasonable under the circumstances.  There are many potential breaches – the other driver was driving while distracted, he was following too closely, he failed to yield at a red light, etc.
3. Causation – this term simply means that the other driver’s breach of his duty caused the harm you suffered.  In many cases, this is straightforward.  However, it can be complicated if you have pre-existing conditions that are aggravated by the wreck.  For example, many people have neck or back issues prior to a wreck that are made worse after a wreck.  Causation can also be complicated when you develop a medical condition after the wreck that may or may not be related to the wreck.  Common examples include headaches, dizziness, and pregnancy complications.
4. Damages – this is the legal word to describe all of the different ways you have been harmed due to the wreck.  This includes damage to your vehicle, medical bills, future medical bills, pain, mental anguish, future pain, future mental anguish, disfigurement, permanent injury, loss of income, and loss of earning capacity. You may not have all of these damages in your claim, but you want to collect all evidence on each element of damage.

So look back at our recipe. Make sure you can prove all four. If you can’t, the battle with the insurance company will be especially difficult.

The Contributory Negligence Defense

Only 4 states in the U.S. still have this legal doctrine. Alabama is, unfortunately, one of them.  Even if you can prove the other driver was negligent, you can’t win your claim if you were contributorily negligent.  In other words, if your own unreasonable actions contributed to the wreck, then you may lose.

Tennessee, and most other states, have comparative fault. Comparative fault means that if you were 1% at fault for the wreck, you can still collect 99% of your damages.  But in Alabama, if you were 1% at fault, you get nothing.  It’s a harsh rule and something you MUST be aware of when interacting with the insurance company. More on this later.

When an insurance company says they are “accepting liability,” that means they are conceding the other driver was negligent and that you were not contributorily negligent.  If the insurance company “denies liability,” they are claiming that either the other driver was not negligent or that you were culpable of contributory negligence.

Subrogation & Liens

When you settle your claim, you probably won’t get to keep all of it.  Huh? Yep, that’s right.  If you have health insurance (including Medicare and Medicaid), your health insurance has a right to be reimbursed from your settlement.  Their right to be reimbursed is called “subrogation.” The health insurance company will want to collect from you all of the money it had to pay for medical treatment that was related to injuries from the wreck.

We will dive into more detail on this later. For now, you need to realize that you MUST know all subrogation amounts before you even attempt to reach a settlement. It’s an awful feeling to settle your claim for $20,000 and then find out a few weeks later that your health insurance company is demanding to be paid $25,000. We’ve seen it happen to people who called us too late.

In addition to subrogation, you need to know about hospital liens.  Even if you have health insurance, the hospital who treats you for your injuries may place a lien on your personal injury claim.  Hospitals do this because they get paid more money from your personal injury claim as opposed to getting paid by your health insurance.  Hospital liens are recorded in the probate office, so double-check if you have any hospital liens before trying to settle your case.

3. First Steps After a Wreck

Here’s a timeline of the first things you need to do after being injured in a wreck:

1. If you are able, call 911 to report the wreck.  If you aren’t, try to get someone else to do so.
2. Tell the law enforcement officer what happened, keeping in mind that they will write an accident report that will say what you told the officer.
3. Take photos of the scene of the wreck if you are able.
4. If there’s a witness, get his or her name and phone number.
5. Get medical treatment immediately if you think there is even just a small chance you are injured.  It’s better to be safe than sorry.
6. Follow the doctor’s instructions.
7. Follow up with your family doctor after being released from the hospital. Do this as soon as possible.
8. Take photos of your injuries if they are visible.
9. Have a family member report the claim to your insurance company. If necessary, you can do it yourself.
10. Do not talk directly with the other driver’s insurance company at first. Have a family member talk with them on your behalf until you know what you’re doing.
11. Obtain a copy of the accident report.
12. Stay off of social media completely (or at least change the settings where only friends can see your posts).

4. Know your Enemy – Commons Tactics of Insurance adjusters

As we said in the introduction, insurance adjusters are highly trained professionals who are working to pay you as little as possible. It’s important to know their tactics before you speak with them.

Recorded Statements

Inevitably, the insurance adjuster will ask to take a statement from you over the phone while he or she records it. Don’t do it!! There is no legal requirement that you do this. With that said, there is a requirement that you do this with your own insurance company if they request a statement. The main purpose of the recorded statement is to trick you into saying something that will either: (1) bring up the contributory negligence defense, and/or (2) impair your credibility, and/or (3) discover information to discount your claim.

For example, if you tell the insurance adjuster you were going 50 mph when the other driver ran the red light, and it turns out the speed limit was 40 mph, you can expect your claim to be denied. Another example is that you admit you had a shoulder injury 10 years prior to the wreck.  Despite the fact that the prior shoulder injury was completely healed years before the wreck, expect the insurance company to discount your claim if the same shoulder was injured in the wreck.

HIPAA Releases

The insurance company will mail or email you a document for you to sign that gives them permission to obtain all of your medical records. This is called a HIPAA authorization or HIPAA release. Don’t sign it!

You should be in control of what information you provide to the insurance company. By signing a HIPAA release, you have given the insurance adjuster the ability to get your medical records from birth to the present. You have given them the ability to get completely irrelevant medical information.

All a HIPAA release does is give the insurance company the ability to show that you had prior similar injuries, that you already had pain in other areas of your body, that you had arthritis, etc.  In other words, it just gives them the ability to discount your claim.

Advising You to Not Hire an Attorney

Many insurance adjusters will try to convince you that personal injury attorneys will just take a huge chunk of your settlement. There’s a good reason for them to do this. The adjusters know that, on average, people who are represented by attorneys obtain over three times as much money in the settlement process. Remember, the insurance adjusters are working against you, not with you.  Never forget that.

Other Common Tactics

Insurance companies usually take one of two approaches: (1) calling all the time and friendly offering a small settlement amount; or (2) stonewalling. Both approaches are bad for you.

The friendly tactic is done in hopes you will accept too little for your claim. The insurance company wants to get your claim settled for a couple thousand bucks before you get fully diagnosed by your family doctor or a specialist. Again, they are just trying to pay you as little as possible, no matter how friendly they might seem.

The stonewalling tactic is becoming more common lately. You will be shocked when an insurance adjuster refuses to return your phone calls for months on end. They are simply hoping you will give up. And remember, if you give up for too long, the statute of limitations ends your claim.

5. The Types of Insurance Coverage

It’s important to know what types of car insurance coverage may come into play during your claim:

Liability Coverage

The other driver should have liability coverage.  It’s required by law. The minimum amount that a person is required to have in Alabama is $25,000 per injured person, $50,000 per incident.  This is the coverage you are seeking as compensation from the other driver’s insurance company.  Depending on how hurt you are, $25,000 might be enough to cover your claim, or it might not even be close to enough.

It’s important to know that the insurance adjuster will rarely tell you the coverage amount.  For all you know, the other driver could have $25,000 in liability coverage or as much as $1,000,000.

Medical Payments Coverage

This is insurance coverage you might have under your own car insurance policy. It is not required by law.  Medical payments coverage usually comes in amounts of either $1,000, $2,000, $5,000, or $10,000.  It covers medical costs up to the limit of the coverage.  It will help pay for hospital and ambulance bills.

Seems great, right? Not so fast. While medical payments coverage is helpful, if your car insurance pays medical payments for your medical treatment, they will have a right of subrogation (see above). They will get paid back out of your settlement the amount they paid. Remember, you have to know the subrogation amounts before you even start to negotiate!

Uninsured/Underinsured Motorist Coverage

This is an extremely important piece of insurance coverage to have if you don’t already. Studies have shown that 1 out of 5 drivers in Alabama don’t have valid car insurance.

What if they run a red light and severely injure you?

The only way to protect yourself from the reckless actions of uninsured motorists is by purchasing Uninsured/underinsured motorist coverage through your own insurance agent. You can get a small amount of $25,000 or go up to $500,000. Your uninsured/underinsured motorist covers your claim if the other person has no insurance or doesn’t have enough insurance to compensate you.

In Alabama, you can “stack” uninsured/underinsured motorist coverage up to three times. So if you have $25,000 in this coverage but have three vehicles, you should have $75,000 in coverage available for your claim.

6.  Handling Your Own Injury Claim – A Step-by-Step Explanation

If you decide to go it alone in the claims process, the first thing to know is that you should only begin the settlement process once you are done getting medical treatment.  Attorneys call this point in time “maximum medical improvement.” It’s important to not settle your claim too early.  After all, once you settle, you can’t reopen the process.

It’s also important to begin the negotiation process only after you have collected all of the evidence and submitted it to the insurance adjuster. Here’s the steps to follow if you decide to not use an attorney:

Collect All the Evidence

Remember the recipe for negligence? Now is the time to collect all of the evidence showing that you can make the recipe.  Here’s the list of everything you need to get together:

• Accident report
• Photos of the vehicles/scene of the collision
• Witness statements
• Any social media posts of the other driver related to the wreck
• A background report of the other driver (if relevant)
• A copy of the Rule of the Road that was violated by the other driver
• All relevant medical records of your medical treatment
• All medical bills
• All subrogation documents (contact your health insurance for this information)
• All hospital liens
• All documents proving your lost wages
• Photographs of your injuries
• Any other relevant documents showing how you have been harmed

Create a Settlement Brochure

When you have collected all of the above, organize it with a title page and table of contents. Put the insurance company’s claim number on the title page. Send it all to the adjuster in a pdf and give them a phone call to let them know it’s coming. Give them at least a month to review it all.  After all, you do want them to review everything.

Negotiation

Make the insurance company make the first offer.  You may have seen the show “Pawn Star.” If so, you know that the pawn shop employees always make the customer make the first offer.

If they refuse to make the opening offer, then go ahead and make a high settlement demand. In the next section, we will go over how to put a value on your claim. For now, just know that you should stay high and only come down when they come up.  Slow play this.  It’s your only chance, and you don’t want to seem eager to settle.

7.  What’s Your Personal Injury Claim Worth?

People always want some type of formula to determine what their claim is worth.  But there’s no such thing.  The only way to make an educated guess as to what your claim is worth is by comparing it to similar claims that had to be filed as lawsuits and went to trial. After all, if you (or your attorney) can’t get the claim settled at some point, a jury will tell you the value of your claim when the jury returns its verdict.

The biggest drawback of not having a personal injury lawyer is that you will probably be clueless about the value of your claim. But here are some relevant factors to consider in arriving at a fair settlement amount:

Is Liability Clear?

Does the insurance company have a legitimate argument that you contributed to the wreck? If the wreck occurred in Alabama, then this affects the value of your case due to the contributory negligence doctrine.  You may want to consider taking a little less than you had hoped for because it’s possible you could get nothing at trial.

Is Liability Aggravated?

Was the other driver drunk? Excessively speeding? If so, then your claim has more value.  Why? Well, a jury is more likely to return a larger verdict if the other driver’s actions were ridiculously dangerous. You could also be entitled to punitive damages in addition to the other damages discussed previously. Punitive damages can be awarded when the other driver was driving in a manner he knew was dangerous to other drivers (i.e., drunk driving, street racing, etc.)

How Likeable is the Other Driver?

If the other driver is a grandma who rear-ended you on her way to church, then this is something you have to take into account. While it may not seem fair, juries tend to be lenient to nice people who made a simple mistake. On the other hand, if the other driver was speeding to the liquor store, then your claim may have increased value. Juries don’t tend to sympathize with such people.

Damages

This is usually the most important factor. You need to total up the subrogation amounts, the liens, your out-of-pocket medical costs, and your lost wages. Let’s call this total “§” for now.  § sets the base value of your case.

The other damages you may be entitled to are more intangible and difficult to define. Things like pain, suffering, mental anguish, and permanent injury don’t have a definitive value. But you must try to quantify them and be able to justify them to the insurance company.

No matter all of these factors, each case is different. We mean this quite literally – no two cases can be compared apples to apples. No formula will do. Juries can be unpredictable, and every case is different.  With that said, the value of your case should exceed § to compensate for the intangible damages of pain, suffering, and mental anguish. How much it exceeds § depends on all of the other factors discussed above, the nature of your injuries, and how your injuries affected your quality of life.

But all of this can change depending on the next factor – the county in which the wreck occurred.

Venue

The county in which your wreck occurred is usually a crucial factor. It is called the “venue” of the lawsuit. Juries in Jefferson County, Alabama, award different amounts than juries do in Madison County, Alabama. It could be the exact same case, but if one happened in Jefferson County and one happened in Madison County, the cases would have different settlement values.  Fair? Probably not, but that’s the reality.

The only way to know whether a certain county is a good venue or a bad venue is by talking with an attorney.  They can let you know your odds with a jury trial in that specific county. People in some counties are more skeptical of personal injury claimants, while people in other counties give them huge verdicts.

8. Pros and Cons of Hiring a Personal Injury Attorney

Cons

Personal injury attorneys charge a contingency fee. This usually ranges anywhere from 33.3% to 45%. (Our firm typically charges 33.3% in car wreck cases, which is fairly standard in Alabama.) A contingency fee arrangement means that if and when your case is settled, then the attorney gets to keep that percentage of your settlement amount. If you handle your claim on your own, you don’t lose that fraction of your settlement.

Another con for some people is that they feel like they lose control over the process when they hire a law firm. Depending on which personal injury firm you hire, this can be true to some extent.  Personal injury attorneys know what they are doing and aren’t always the best at taking input from the client.  With that said, our firm strives to keep the lines of communication open. We give educated advice but leave important decisions in the hands of our clients.

Pros

The most obvious benefit to hiring an attorney is that you will likely get a higher settlement amount.  Studies show that people who have attorneys handle their claims get approximately three times as much money.

Another benefit is that you don’t have to deal with the headaches and stress that come with the process.  It takes time and effort to properly handle a personal injury claim. There are numerous phone calls, letters, and emails, not to mention a lot of confusing paperwork. Many people feel relieved when they hire someone to handle everything for them.

Perhaps the most important benefit to using an attorney is that you will know what a fair settlement amount is and what is an unfair settlement amount.  You won’t have to second guess yourself for settling or taking it to court.

At the end of the day, you must decide what is right for you. You may be able to do it on your own.  If you decide to contact a law firm, the next section covers how to choose the right firm to handle your claim.

9.  How to Choose the Right Law Firm

Marketing in the personal injury arena has gotten crazy over the last decade. Billboards and TV ads are everywhere. So how can you know which firm is right for you?

The most important factor to consider is whether the lawyers in the firm have experience taking cases all the way to trial. You don’t want a law firm that just settles every single case they handle.  You want a law firm that the insurance company knows will take the case to the courthouse if necessary.

Another important factor is that you hire an attorney who is local. You don’t want a law firm based in Florida handling your case that happened in Madison County, Alabama. Why? So much of handling a case is local knowledge – familiarity with the judges, the local procedural rules, and the local defense attorneys.

Another attribute of a good personal injury firm is that when you contact the law firm, you get to meet with an actual attorney. Not a “client intake specialist,” not a “liaison,” not a paralegal, but a licensed attorney.

What you want to avoid is choosing a law firm based solely on advertising, every firm can advertise.  We recommend talking with family, friends, or coworkers who have been through personal injury claims. Ask them which law firm they used and whether they had a positive or negative experience.

In short, you need to do your homework before contacting a personal injury law firm. Not every firm is the same, and you want the right one to handle your claim. We hope this car accident injury guide has helped you get answers.