Settling Personal Injuries

Steps in Settling a Claim:

The following is a guide to help you decide whether you can settle your claim with the insurance company on your own or if you need the assistance of a lawyer.

Answer the following questions to help you decide whether you should try to settle your injury claim without hiring a lawyer:

I. Cases You Should Never Try to Resolve Without the Assistance of an Attorney:

If you answered “yes” to any of the following questions, you should not try to settle the case without first consulting an attorney.

1) Is the insurance company holding off on paying your claim until it “completes its investigation”?

Be wary if your auto insurance company refuses to pay your claim until it can “complete its investigation.” This can mean a variety of things, but it all boils down to one thing: they are attempting to delay payment for some reason.

An insurance company conducts investigations for a variety of reasons. a) Coverage issues; b) liability issues; and c) damage issues

a) Coverage Issues: If they are looking into a coverage issue, it means they are looking for a reason to say “no coverage” and deny your claim. This could be for non-payment, a person driving their car who wasn’t supposed to be driving it, the other person driving a car that wasn’t listed, no coverage for the time or date of the accident, or their driver “not cooperating” with them – meaning they aren’t filing a claim. Yes, they can deny coverage because their driver never files a claim, thereby absolving the insurance company of responsibility for paying your claim. They “desire” that their insured driver does not call. This gives them an excuse to delay paying you and keep the money for a little longer, as well as an excuse to deny coverage in the future if their person never calls in the claim. You need a lawyer to put pressure on the other driver to contact their insurance company so that there is no coverage issue as a result of “not cooperating.”

b) Liability Issues: If the insurance company is confirming or investigating liability, it means that they are looking for reasons to blame someone other than their driver. They may try to blame you or your driver for something they claim you did (didn’t put on your brakes in time, cut them off and then slammed on your brakes, failed to veer right or left to avoid the collision, didn’t use your horn to warn the other person to move out of the way)… or they may try to blame a “phantom vehicle.” Often, the other driver will claim that they were cut off by a vehicle that no one else saw and had no choice but to hit your vehicle. They’ll say it wasn’t their fault, but the fault of this “phantom vehicle” that no one saw and for which no one has a license plate. This will provide the insurance company with an excuse to deny your claim.

They will sometimes blame it on God himself. It’s referred to as a “Act of God.” Weather, such as the sun, wind, rain, or ice, is an act of God. Everyone else on the road may be driving normally and within the limits set by the weather, but their driver has decided to drive too fast for the conditions, or change lanes when it is unsafe and loses control on the water, or gets sun in his eyes, and blames the accident on an Act of God. This gives the insurance company a reason to deny liability because their driver did nothing wrong – the accident was caused by Mother Nature or God.

c) Damages Issues: If the insurance company is delaying payment because they need to confirm some “damages” (medical treatment, lost income, or other out-of-pocket expenses), they are looking for a reason to not pay your damages (medical bills, lost income, or other out of pocket expenses). If you had another accident or injury claim with another insurance company from an auto accident, a Workers Compensation claim, a premises liability case, or a slip and fall, they are likely contacting those other insurance companies to see what injuries you had in those older cases and if your injury you are claiming now is similar. If it’s even remotely similar, they’ll try to blame your current injury on your previous accident or injury, claiming that they don’t owe you anything. Insurance companies have access to databases that contain information about all of your previous injury claims with all of the different insurance companies with which you have filed claims. They will be aware of any prior claims of injury, even if it was a minor complaint, and will use that information against you, attempting to blame your current injury on the previous claim in order to avoid paying.

You need a lawyer if the insurance company is delaying payment for “investigation” reasons. This means that the insurance company is looking for a way to avoid paying – coverage, liability, or damages – and they are looking under every rock to see what they can find. If they find something, they will use it against your claim.

2) Were you taken to a hospital for treatment of your injury?

If you were taken to a hospital for your injury, you should consult with an attorney about your case. Hospitals frequently have liens that must be paid. The automobile insurance company will usually dupe you into believing that they will “take care of everything.” When they say they will “take care of you” or “take care of everything,” they are making a broad statement that means nothing. All it means is that they are attempting to pacify you for a few weeks or months, and then when the time comes to settle, they will take care of you in the manner they desire (which is not the way you expect). They will then make you a lower offer than what you are owed, claiming that the hospital overcharged you. You don’t have clout with the hospital, and you don’t know how to bargain with it. Because the hospital has a lien, the settlement must go to them – and you also have other bills. It appears that all of the money will be spent on the hospital and nothing on your other out-of-pocket expenses (medication, lost income, rental bills, towing, visits to your personal doctor, other medical bills).

If you were taken to a hospital as a result of your injury. Your claim is not as straightforward as you believe. You should contact a lawyer to assist you with your claim, or at the very least to review it with you to see if anything can be done in your situation.

3) Did your medical bills for your injury get paid by a health insurer (health insurance, Medicare, Medicaid, or Workers Compensation)?

If your health insurer paid your bills, you should speak with a lawyer (such as Medicare, Medicaid, Workers Comp, or your own health insurance). Do not attempt to settle the claim without first consulting with an attorney and discussing your case. You will almost certainly require the services of an attorney. Your health insurance company will demand reimbursement. If you do not pay them, it may have an impact on your coverage (e.g., they may refuse to pay you for future health insurance, Medicare, Medicaid, or Workers Compensation claims). This can leave you worse off than before you settled your personal injury claim.

Do not settle your claim if your health insurance has paid for or will pay for any of your medical bills related to your injury. Contact an attorney to discuss your situation and see what you can do to help.

4) Was a DWI or drug use suspected?

If you suspect a DWI or that the other driver was impaired by drugs, you should consult with a lawyer before attempting to settle your claim. You will need to discuss the facts with your lawyer so that they can conduct an investigation and determine the value of your case. You should not attempt to settle this type of claim without the assistance of a lawyer. In this type of case, there are numerous pressure points that an experienced lawyer can use to ensure you recover the full value of your case.

5) Was the other driver “distracted” while driving, such as by using a cell phone or texting, which caused the collision?

If the other driver was distracted by their phone, you will need the assistance of an attorney to subpoena those records in order to prove your claim. If they were driving distracted and that distraction caused the accident, the value of the case may be affected based on what happened and what was said afterward. Often, the other driver will admit to the police officer that they were distracted while driving, but will later deny it to their insurance company – even if they admit it to the officer. They attempt to argue that the officer did not hear them correctly or did not speak to them (only spoke to you). You’ll need an attorney to help you prove it – to back up your claim that they were on their cell phone at the time, especially if they deny it at any point.

6) Were there multiple injuries?

You need a lawyer if multiple people were injured in your car accident. There is only so much money available in insurance proceeds for a specific car accident. To avoid being left out in the cold, you should hire an attorney to investigate and pursue your claim. If the auto insurance company pays everyone else first and depletes all of the policy’s funds, you may have nothing left for your claim, even if your injury was the worst of all. In this case, hire a lawyer to assist you in pursuing your claim and protecting your rights to the insurance proceeds.

7) Were you in another person’s vehicle when you were injured (a friend, family member, or someone else)?

If you were injured while riding in someone else’s car, you’ll have to figure out which insurance company is primary and which is secondary. If your injury is severe, you may need to use your underinsured motorist insurance. In those cases, you must follow specific procedures to file your claim. The procedures are dictated by the facts of the case. If you mess up the procedures (do them out of order), you may lose your rights to the insurance proceeds.

If you were injured while riding in someone else’s vehicle, hire an injury lawyer to help determine the order of responsibility of the insurance companies involved so that claims can be filed correctly and you don’t lose coverage that you should have.

8) Have you previously treated a condition or injury in a similar area of the body?

When an accident occurs and causes injury, many people are already being treated for a condition.

a) a worsening of your injury, necessitating additional medical treatment that you would not have needed if the accident had not occurred; or

b) a new injury in a part of the body near the previously injured area.

If it is an aggravation of your preexisting injury, then you need a lawyer who can gather the information needed to show how the injury was aggravated, and what the difference is between your prior condition and your current condition.

If this is a new injury, then you need a lawyer who knows what information to gather to show the difference between the old injury or condition, and the new injury caused by the accident.

These are not as simple as you may think.  If this is your situation, you need an injury lawyer to help you present your claim to ensure you recover.

9) Have you previously treated for another condition or injury in a similar area of the body?

If you have previously been injured in a similar area of the body, the liability insurance company will attempt to blame your current injury and condition on the previous injury you treated for. They will refuse to pay for it. You will need the assistance of an attorney to present the claim in a way that explains the distinction.

10) Did the other driver have no insurance?

If you were injured by a driver who did not have insurance at the time of the accident, you should contact a lawyer to see if they can assist you in locating the coverage that will help you in your situation. People frequently have additional coverage that can be useful in certain situations. Because each case is unique, your attorney will need to investigate and determine what coverages you may have to assist you in your situation.

11) Have you been the victim of a hit-and-run?

If the driver who caused the injury fled the scene, you will need the assistance of an attorney to investigate and present any claims you may have. There are specific procedures that must be followed when presenting your claim. You must have someone present your injury claim for you in such a way that there is coverage and you can recover from the other driver.

12) Were you injured by a driver who was enraged on the road?

If the other driver was having a nervous breakdown and was in the midst of a road rage incident at the time of the accident, you should consult with a lawyer BEFORE speaking with the insurance company. This is a common tactic used by insurance companies to avoid paying a claim. They do not apply to “intentional acts.” The insurance company will question you in order to persuade you that everything that happened was “intentional.” This assists them in denying the claim because they will not cover intentional acts.

What the insurance company won’t tell you is that, in the insurance company’s opinion, not all “road rage” accidents are intentional. The other driver may have purposefully swerved into your lane, or he or she may have driven up quickly behind you and tailgated you while screaming at you. He may have swerved into your lane and hit the brakes hard. However, he may have done all of this to scare you, rather than to hit you and damage your vehicle, as well as to cause damage to his own vehicle. If the impact was unintentional, the act is not intentional. Because the person experiencing road rage is often behaving foolishly, the victim of the road rage accident often tells the police, insurance companies, and anyone else who will listen that the other driver did it “on purpose.” It may appear that he did it on purpose. Certainly, his swerving, yelling, and other gyrations were deliberate, but can you truly say the impact was deliberate? You were probably terrified and enraged by the other driver’s actions, and you were right to be. It may appear that saying this will get you into more trouble with the other driver, but this may not be the case.

In these cases, you should consult with a lawyer who will present your claim to you. When you are emotionally involved, angry, scared, or otherwise upset about how the other person behaved, you need a mouthpiece to present your claim for you so you don’t mess it up by saying something you “think” happened but don’t “know” happened.

Don’t give the person’s insurance company a reason to deny the claim by volunteering information you’re only assuming. His insurance should cover it, and his rates, not yours, should rise.

13) Do you have a pending bankruptcy?

Did you declare bankruptcy after the injury? If you have a pending bankruptcy, or if you file bankruptcy after your injury accident, but before you settle your claim, you should consult with a personal injury attorney to ensure that you protect both your claim and your bankruptcy. Before you can settle your auto accident case, certain filings must be made and permission granted by the bankruptcy court. If you do not, your bankruptcy and settlement may be jeopardized. If you are dealing with a bankruptcy issue as well as a personal injury claim, you should consult with an attorney.

14) Do you owe the Texas Attorney General child support or have a child support lien through the Texas Attorney General’s office?

When people fall behind on their child support payments, the Texas Attorney General’s office places a lien on any insurance proceeds from automobile accidents, including any injury claims you may have. Your insurance adjuster will notify you at the last minute “Hey, it appears that you have a lien. This settlement check must be sent to the State of Texas.” This is typically done AFTER you have signed a release agreeing to settle the case but before they send you the actual check. So you’re stuck with the amount, and now that you have a lien, you don’t have enough money to pay all of your medical bills, and the money you were expecting to pay for your deductibles and copays, as well as reimburse you for lost income, is all going to the State of Texas Office of the Attorney General (OAG).

These liens are sometimes out of date. You might have already paid the sum. You may have a lien against you based on incorrect information – the Texas OAG’s office may have the children living with your spouse when they are actually living with you!

If you have a child support lien against you and need to settle a personal injury claim, you need a lawyer to help you navigate the minefield.

15) Are your medical bills paid by your health insurance and yourself currently greater than $1000.00, or will they likely be greater in the future?

If your medical bills exceed $1000.00, you should consider hiring a lawyer for your personal injury case. Anything less than this amount, if the injury is minor (if you went to your personal doctor once and it’s been 2-3 months and you’re 100 percent), you can try to settle your case on your own. Granted, you’re still treading carefully when it comes to dealing with all of the insurance issues mentioned above, as well as any liens that may exist. My recommendation is that you still consult with a lawyer before attempting to settle. There may be issues that you haven’t considered that will cause you a lot of grief in the future.