In some cases, you may not need to hire a lawyer to resolve your auto accident injury claim. If your injuries are minor (i.e. soft tissue injury) and heal up in a week or two, you may be able to resolve the claim without a lawyer. If you are going to handle the case on your own, get a copy of the accident report. Get an itemized bill from each of the medical providers you saw (hospital bill, bill from ER doctor, bill from your primary care physician, physical therapist or chiropractor), and put a summary of those bills in a spreadsheet. Also order from the medical providers the medical records for your dates of service. Finally, keep track of your days lost from work. Get your employer to write a letter verifying that you missed X number of days from work because of the wreck. Once you have this information, forward it on to the adjuster with a "demand letter." In the demand letter, highlight the facts from the accident report that support your case (i.e. the investigating officer blamed the other driver). Summarize your medical bills (note: you should ask for the amount the provider billed, not the amount you paid in copays) and lost wages. In addition to the "specials," make a demand for your physical pain, mental anguish and physical impariment. For evidence of physical pain, talk about the sleep you lost or the pain pills you were forced to take to allieviate the pain. For physical impairment, talk about the things you like doing that you couldn't do while recovering from the wreck (couldn't do your regular jog, missed a friends wedding because you couldn't go out). Finally, end your demand letter with an offer to settle your claim for a fixed dollar sum (one that includes the appropriate figure for each of the elements of damage). The adjuster likely won't agree to pay your initial demand. Don't get discouraged--continue negotiating with the adjuster until you reach an acceptable compromise.
A few words of caution: settlements of injury claims are (with limited exceptions) FINAL. Before you start negotiating your own claim, make sure your injury has fully resolved. I have represented numerous claimants who had injuries that a few weeks in appeared minor, but the symptoms did not resolve. What were thought to be minor soft tissue injuries turned out to be more serious disk damage requiring surgery. If the clients had not been persistent in following up with their doctors, they might have been tempted to settle a serious surgery case for pennies on the dollar.
Beware of subrogation: once you settle your claim with the other driver's insurance company, beware of subrogation. If you have health insurance, your insurer may have a right to be reimbursed for the amount they paid for your medical attention. Look to your health insurance policy to determine if and how much your health insurer may be entitled to. If you had your auto insurance pay the property damage to your vehicle, also be careful about their subrogation interest. Your auto insurance company has a right to be reimbursed from the other driver's insurance company the amount they paid you. So make sure that the release you give the other driver's insurance company only releases the bodily injury claim. Make clear you are not settling the property damage claim (if you do, your auto insurer could come back against you for voiding their claim).
Monday, October 26, 2009
Saturday, October 10, 2009
Do I need a lawyer? Property damage claims
One of the most common questions I get in my practice is the most basic-- do I even need a lawyer? If you've been in an auto accident, the answer is not always yes. When the accident report is clear that the other driver is at fault and there are no aggravating factors affecting the claim (i.e. the other driver was drunk), you can sometimes resolve a property damage claim without a lawyer. Here are some tips to help you deal with these claims:
1. Is the car repairable? This is the critical question to determining what you are entitled to recover. If the vehicle is repairable, you are entitled to recover the cost of repair of the vehicle. If the at fault driver's insurance company has assumed responsibility for the collision, they will usually pay the repair shop directly. You are also entitled to recover for "loss of use" of the vehicle. Often times, the other driver's insurance company will provide you with a rental car while your car is being repaired. If the other insurance company is dragging its feet, the threat of "loss of use" damages can get them moving. You are entitled to recover "loss of use" damages even if you don't (or can't afford to) rent a replacement vehicle. By telling the insurance company you'll demand "loss of use" damages for every day they fail to get the car fixed, you can often times get them to speed up the adjustment of the claim.
Another element of damage for a repairable vehicle is the "diminished value" of the vehicle. The theory behind this element of damage is that when you resell a vehicle that was in a wreck, you will sell it for less than a vehicle that has never been in a wreck. You can often find out what the loss in resale value of your vehicle will be by picking up the phone and calling your local dealership. If they don't help, there are companies that will provide appraisals of your vehicle that calculate the diminshed resale value.
2. Is the car "totalled"? A car is "totalled" by comparing the cost of repair to the pre-accident value of the car. For example, if your car prior to the wreck is worth $10,000.00, but the cost to repair your car is $15,000.00, then your car is "totalled." Texas law is clear on when a car is "totalled." Tex. Transporation Code Section 501.0911. For cars over five years old, the car is "totalled" if the cost of repair is equal to or greater than 75% of the value of the car. For cars under five years old, the car is "totalled' if the repair costs are 95% or more of the value of the vehicle.
If your car is totalled, you are entitled to recover the actual cash value of the car before the wreck. How do you calculate actual cash value? Go to kbb.com (Kelley Blue Book) and the Edmunds.com website to calculate the value. The insurance company will offer you a low ball number based on some proprietary software they have (CCC). Stick to your guns and demand fair value.
Except when repair costs are really cheap, insurance companies will often opt to total your vehicle. Why? Because Texas law says that when a car is "totalled," you cannot recover for the "loss of use" of the vehicle. That means that the other driver's insurance company can drag its feet, delay paying the claim, without the penalty of loss of use damages. The insurance company will then use the fact that they can delay payment with impunity to get you to accept less than the fair value of your car to settle the claim. After all, you need the money to replace your car. And the insurance company can sit on your money without penalty. In my estimation, this is one of the most unfair areas of insurance law.
3. If you have collision coverage, file with your carrier. If you run into the delay tactics of the at fault driver's insurance company, file with your own auto carrier. Under Texas law, your auto carrier has obligations to treat you fairly and resolve your claim promptly. The other driver's insurer does not
1. Is the car repairable? This is the critical question to determining what you are entitled to recover. If the vehicle is repairable, you are entitled to recover the cost of repair of the vehicle. If the at fault driver's insurance company has assumed responsibility for the collision, they will usually pay the repair shop directly. You are also entitled to recover for "loss of use" of the vehicle. Often times, the other driver's insurance company will provide you with a rental car while your car is being repaired. If the other insurance company is dragging its feet, the threat of "loss of use" damages can get them moving. You are entitled to recover "loss of use" damages even if you don't (or can't afford to) rent a replacement vehicle. By telling the insurance company you'll demand "loss of use" damages for every day they fail to get the car fixed, you can often times get them to speed up the adjustment of the claim.
Another element of damage for a repairable vehicle is the "diminished value" of the vehicle. The theory behind this element of damage is that when you resell a vehicle that was in a wreck, you will sell it for less than a vehicle that has never been in a wreck. You can often find out what the loss in resale value of your vehicle will be by picking up the phone and calling your local dealership. If they don't help, there are companies that will provide appraisals of your vehicle that calculate the diminshed resale value.
2. Is the car "totalled"? A car is "totalled" by comparing the cost of repair to the pre-accident value of the car. For example, if your car prior to the wreck is worth $10,000.00, but the cost to repair your car is $15,000.00, then your car is "totalled." Texas law is clear on when a car is "totalled." Tex. Transporation Code Section 501.0911. For cars over five years old, the car is "totalled" if the cost of repair is equal to or greater than 75% of the value of the car. For cars under five years old, the car is "totalled' if the repair costs are 95% or more of the value of the vehicle.
If your car is totalled, you are entitled to recover the actual cash value of the car before the wreck. How do you calculate actual cash value? Go to kbb.com (Kelley Blue Book) and the Edmunds.com website to calculate the value. The insurance company will offer you a low ball number based on some proprietary software they have (CCC). Stick to your guns and demand fair value.
Except when repair costs are really cheap, insurance companies will often opt to total your vehicle. Why? Because Texas law says that when a car is "totalled," you cannot recover for the "loss of use" of the vehicle. That means that the other driver's insurance company can drag its feet, delay paying the claim, without the penalty of loss of use damages. The insurance company will then use the fact that they can delay payment with impunity to get you to accept less than the fair value of your car to settle the claim. After all, you need the money to replace your car. And the insurance company can sit on your money without penalty. In my estimation, this is one of the most unfair areas of insurance law.
3. If you have collision coverage, file with your carrier. If you run into the delay tactics of the at fault driver's insurance company, file with your own auto carrier. Under Texas law, your auto carrier has obligations to treat you fairly and resolve your claim promptly. The other driver's insurer does not
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