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Vehicle Accident Q&A




by:
John D. Williams
Law Offices of John D. Williams - Westlake Village Office

 
December 16, 2009

Do I need to hire a lawyer?
How much is my claim worth?
What if I wasn't injured, but my car was damaged or totaled?
What if I didn't think I was injured at the time, but I felt hurt later?
What if the driver who hit me in the accident wasn't insured?
How much will it cost me to hire a lawyer?
Should I talk to my insurance company about the accident?
How long will it take to get a settlement?
Uninsured Motorist Coverage
Releases
Comparative Negligence
Loss of Consortium
Jurisdiction
 
Do I need to hire a lawyer?

Maybe. In this day and age, even the simplest of car accident cases may require the services of an attorney. Many insurance companies have been known to make settlement of claims, especially claims involving whiplash injuries, very difficult for individuals without the representation of an attorney. Even though you will pay your attorney a fee for handling your case, in many instances, it is worth it, because the settlement or final award you receive is greater with an attorney than without.

How much is my claim worth?

It depends on many factors. In most cases, if someone else's negligence caused the car accident and resulted in your injuries, you should be entitled to payment of your bills plus compensation for pain and suffering. If you were seriously injured and missed time from work, you may be entitled to compensation for lost wages or loss of earnings capacity in addition to payment of your medical bills and pain and suffering. Also, you may be entitled to recover for emotional distress, even if your injuries were not debilitating. Generally, the more seriously injured you are, the more the monetary value of your case is, because you have more pain and suffering, medical bills, lost time from work, and other expenses. Again, many firms handling car accident cases resulting in whiplash or other injuries will offer a free first consultation to discuss these issues with you.

What if I wasn't injured, but my car was damaged or totaled?

In most cases, your property damage can be settled fairly quickly and efficiently, even if you have to take the car for more than one estimate. Many times, you will not need an attorney to handle the property damage from a car accident, even if you need an attorney to handle a personal injury claim from the same accident. You probably will not be entitled to recover more than the value of the repairs to your car or the value of the car if it was totaled. Because of that, if you hire an attorney for a fee, paying that fee may reduce the amount you are able to put toward your car. If you have an attorney representing you on a personal injury claim, you should check with your attorney to see if he or she will help you with your property damage claim.

What if I didn't think I was injured at the time, but I felt hurt later?

You should immediately consult your medical provider regarding any pain, discomfort or possible injuries from a car accident, even if you think they may be only minor injuries or whiplash. Contrary to some common misperceptions, whiplash injuries from car accidents can be very serious. Only your doctor can answer your medical questions.

Even if you did not complain of whiplash or other injuries at the scene of the car accident, if you were injured in the accident from someone else's negligence, you may be entitled to payment of your medical bills, compensation for pain and suffering, lost wages, loss of earnings capacity, and/or emotional distress. You should consult an attorney to discuss whether you need representation on your claim.

What if the driver who hit me in the accident wasn't insured?

Unfortunately, many drivers are not insured, even though the law requires insurance. However, your own insurance may cover your claims, depending on your policy. Also, if you were a passenger, the driver's insurance or the owner's insurance of the car in which you were a passenger may be responsible for your claims. It is very important to explore all the options regarding insurance if you have been injured in a car accident, and this can be somewhat complicated. Attorneys who handle car accident cases should be very familiar with insurance issues.

How much will it cost me to hire a lawyer?

It varies, but many law firms that represent people who were injured in car accidents will work for a contingency fee; in other words, the fee is a percentage of any settlement or verdict. By hiring a lawyer this way, you save yourself a great deal of out-of-pocket, up-front expenses. Also, some lawyers who work for a contingency fee will advance the costs associated with your case (the costs of copies, filing fees, investigation, depositions, etc.), which again keeps your out-of-pocket, up-front expenses to a minimum. After your case settles or is tried, your costs and fees come out of any settlement or verdict.

Should I talk to my insurance company about the accident?

At first, only talk to your insurance company to notify them that an accident occurred. Before giving detailed statements, and especially tape recorded statements or interviews, to either your insurance company or the insurance company of the person who hit you, you should carefully evaluate whether you may first want legal representation. Insurance companies often want to settle the matter quickly, and this may be before you know the full extent of your injuries. If you make a settlement agreement with an insurance company, and then discover later that you have additional medical bills or time off work for which you were not compensated, you probably will not be able to get more money later.

Many law firms that handle cases for people who have been injured in car accidents offer free initial consultations. Before having settlement discussions with an insurance company, you may want to consult an attorney to discuss these issues.

How long will it take to get a settlement?

It depends. Some cases settle quickly, literally within a few weeks, and some cases take much longer. It doesn't always depend on how seriously injured you are, but oftentimes it depends on which insurance companies are involved, whether who is at fault for the accident is disputed, whether your treatment for your injuries is ongoing or completed, whether the case can be settled without formal litigation or whether a lawsuit must be filed, and many other factors. Your attorney will have a better idea of the time frame after he or she has had the opportunity to review the file and talk with the insurance companies and/or other attorneys involved.

Uninsured Motorist Coverage

Q: I maintain only the amount of insurance that is required by law in California. That means that if I get in an accident, I'm covered for any injuries I sustain, doesn't it?

A: No. Maintaining the amount required by law means only that you are complying with the law. It does not mean that in all situations you will be covered. For example, uninsured motorist coverage is not required by law, it can be waived, however the chances of you being hit by an uninsured driver in California are quite high. Despite the fact that you carry the mandatory amount of insurance, this will not protect you if you are hit by an uninsured driver. Uninsured motorist coverage provides that if your are involved in an accident with another driver who is at fault and does not have insurance, your insurance company will provide coverage, minus your deductible. If you do not have uninsured motorist coverage, it is possible you will not be able to recover anything for any damage or injuries sustained in an accident with an uninsured driver if you are not at fault.

Releases

Q: I was involved in a automobile accident recently, it was the other driver's fault. The other driver and I exchanged all the necessary insurance information and I called the insurance company and they said they will pay for all the damage to my car, but I have to sign a release. Is it okay to sign the release?

A: Most likely, it is okay to sign the release, but read it very thoroughly first. If the insurance company is offering only to pay for your property damage, make sure that the release states that this release is for property damage only. Many times releases are very general and release the insurance company and the insured from any and all claims arising from this particular accident. For example, if you don't think you suffered any visible injuries at the time of the accident, but were extremely sore for some time after the accident, it may be an indication that you have suffered some type of injury and might need future medical care. If you sign a general release and find out later that the your bad back or trick knee really did originate from the accident most likely you will not be able to receive any compensation for your medical bills. Even if you did not know of the injuries at the time you signed the release.

Comparative Negligence

Q: It is my understanding that if I am at fault at all for an accident even if the other driver is equally or more at fault, I cannot recover anything, is that true?

A: It is true in some states, however California is not one of those states. California subscribes to the comparative theory of negligence. What that means is that if you were at fault, you can still recover, however your recovery will be reduced by whatever amount of fault you are apportioned. Thus, if you were driving inattentively and were involved in an accident where the other driver was driving completely recklessly. It might be found that you are 20% at fault for not paying more attention, and the other driver is found to be 80% at fault. If you were awarded $10,000, it would be reduced by 20% or $2,000. If you were found not to be at fault at all, then the award would not be reduced.

Alternative Dispute Resolution

Q: I've heard a lot about something called "ADR" what is it and is it important?

A: "ADR" stands for Alternative Dispute Resolution. It has become a very important mechanism in the legal community. In response to the amount of time it takes to pursue a lawsuit, in California it is generally twelve months to two years from the time of filing a lawsuit before getting to court. The legal community has been exploring alternatives to the court system. The majority of the alternatives are done in conjunction with the court system and are designed to get timely and equitable results without having to go to trial. Some of these alternatives include mediation, settlement conferences and arbitration. All of these alternatives are designed to save both plaintiffs and defendants time and money while pursuing a mutually desirable result. Many times, cases are settled through these techniques. However, these techniques are not necessarily the best for all cases. It should be viewed on a case by case basis. Even after participating in some type of ADR a case still may go to trial. But it is an option that exists and in many cases has facilitated results without having to resort to a trial.

Loss of Consortium

Q: My wife was seriously injured in an automobile accident which was not her fault. She spent a month in the hospital and will need to spend at least two more months recuperating at home. We have two small children. I have had to take a lot of time off work to take care of the children and my wife. It has substantially affected my life, especially my job. My wife is pursuing a claim against the driver of the other vehicle for her injuries. Is there any way I can recover for the loss I have endured in my life because of this accident?

A: Consortium is defined as the right of each spouse to the company, society, co-operation, affection and aid of the other in every conjugal relation. Loss of consortium is a separate cause of action resulting from the injury to one's spouse. Indirectly, through the wife's injury, the husband has sustained an injury as well, in that he has to take over all the responsibilities that were previously shared, as well as losing the affections of his spouse, either permanently or temporarily) through injuries sustained as a result of the negligent actions of others.

Jurisdiction

Q: I am a resident of California. This past summer my family and I drove out to Colorado to visit my sister. While driving through Nevada we were rear ended by another driver. He was from Washington on his summer vacation as well. Can I sue him in California for the damage to the car and the injuries my family sustained as a result of the accident?

A: Where you can sue depends on the jurisdiction of the court. Jurisdiction refers to the court's authority to hear a case. Jurisdiction is determined by statute as well as common law. There are two kinds of jurisdiction, subject matter jurisdiction and personal jurisdiction. Subject Matter jurisdiction refers to the matter in dispute. In this case is would be the collision of the cars. Personal Jurisdiction refers to the people involved in the dispute. Depending on the circumstances surrounding the accident, you may be able to bring suit in California. More likely, though, the place of the accident will be the correct venue and the case must be filed in the Court in the jurisdiction of the accident. This can make the amount of your recovery very different. For example, if the case is the jurisdiction of downtown Los Angeles your chances of obtaining a larger and fairly recovery will be much better. If the accident happened in a conservative area like Sacarmento or Ventura your recovery will most likely be less and not as fair. Experienced personal injury lawyers and insurance companies know this and will make offers and accept offers accordingly. However, even if a California Court is found to have both subject matter and personal jurisdiction it does not necessarily mean that the law of that state will be used. Very often in the example above if jurisdiction was found in California, Nevada law may still be applied by the California.

 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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Author
 
John D. Williams
Practice Area
 
Personal Injury
 
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