When involved in an automobile accident, some of the issues include the property damage to the vehicle, obtaining photographs of the car accident and accident scene, the property damage estimate, and where the vehicle is going to be repaired. There are then issues of actual cash value and repair and replacement of the vehicle. When making a claim with an insurance company with respect to personal injuries, in order to properly prepare a claim for a case against the insurance company or party involved, it will be necessary to: determine the amount of the medical bills; gather all of the medical records, including doctor reports; gather witness information, photographs of the scene and possibly of the injury, photographs of the vehicle; determine the amount of injury, whether it be permanent or temporary to the victim; any necessary future medical treatment, and the cost. The case may involve talking to the police officers and witnesses involved, obtaining experts in the form of accident reconstruction experts to determine speed, skid marks, and damage to the vehicles. Whenever there is a claim against an insurance company or the negligent party involved, the other side tries to place blame onto the injured individual or other parties. It is therefore necessary to properly assess any “comparative negligence” that can be asserted against the victim in order to properly defend that issue which then disputes the other side’s claim. The more the other side can blame on the victim, the less they will owe in the end. The injured party in a case, through their attorney, must prove that the other side was negligent and their negligence was a cause of their damages. Negligence is the failure to do something that a reasonably prudent person would or would not do, or the failure to use ordinary or reasonable care.
At times, an individual can be responsible for a car accident when they have violated a statute, ordinance, or regulation, and that violation was a cause of the accident. If that turns out to be the case then the individual is considered negligent as a matter of law, unless they can prove that they were prevented from complying or justified in not complying with the statute, ordinance, or regulation.
Contributory negligence or comparative negligence is where the other side tries to blame some fault onto the victim; that is, where the injured party did not act reasonably and their actions contributed to the injury. In that case, the judge or jury will be asked to compare the negligence against whom the claim is made.
The California Vehicle Code is an example of a statute that would apply in a motor vehicle accident. If a party had violated a Vehicle Code statute that was designed to protect an individual that was injured, such as violating the basic speed law, the law looks at that as presumed negligence unless the other side can prove that there was a justifiable reason for speeding if the speed caused or contributed to the victim’s injury.
An individual is entitled to recover damages based upon a defective product if it is defective in manufacture or design, or there is a failure to adequately warn a consumer of a hazard involved in the foreseeable use of the product. If an individual is injured because of a defect, then the issue to decide is the amount of the individual’s damages, which commonly include: loss of earnings, both past and future; medical bills, both past and future; and pain and suffering. The jury would decide on the amount of the above damages in most cases.
Most cases are settled without trial if the case is properly prepared and the information is gathered concerning the circumstances of the accident. A determination is made as to causation and whether the injuries are related to the accident, the amount of the loss of earnings, medical … The insurance company, many times, looks at the case as to how a jury would decide and therefore bases their settlement evaluation on what a jury would likely do in the particular county where the case is going to be tried. The case may have a different value in Shasta County, California, versus Modoc County or Los Angeles County. Each county has a different jury make-up and therefore generally the valuations of the damages and even liability can be different. That is one reason to have an attorney who is familiar with jury make-up in the county where the case would have to be located or venued. That does not mean the attorney has to be from that county, but the attorney should be familiar with the make-up of the potential jury and the jury verdicts within that county. Insurance companies look into that issue as well in determining their evaluation of a case for settlement purposes.
Most cases involve issues of insurance because most of the time the personal injury cases are settled through insurance companies. It is important to know, then, the amount of insurance on the other side, as well as the insurance that may apply to the injured victim, such as their health insurance or medical insurance, Medicare, Medi-Cal; whether there was uninsured motorist coverage in a situation where the other side did not carry insurance; or underinsured motorist coverage, which is a case where the other side had minimal insurance, but the victim’s insurance was higher and therefore they could make a claim for the difference; or is the other side a public entity, where special claims must be made usually within six months of the accident. When a case is settled or there is a jury verdict, it is important to determine the amount of liens that may be on the case through the various insurance companies. For example, if Medi-Cal had paid medical bills, or a health carrier such as Blue Cross or Blue Shield, then they may be entitled to a lien on the settlement, and those liens, many times, can be negotiated down by the attorney, which provides for a better settlement amount to the injured victim.
Many times, the insurance policies provide various exclusions within the policy. Interpretation of the policies is subject to California case law. An interpretation by the claims person handling the insurance claim can be subject to a different interpretation of the insurance coverages. The policy language must contain exclusion language that is plain and conspicuous. If it can be shown the language is not written properly, an insurance company will be more likely to resolve the case.
Personal injury cases can cover a broad spectrum of accidents, including automobile, motorcycle, truck, dangerous products, dangerous condition of a public roadway, or dangerous condition caused by a public entity. Injuries can be minor to serious catastrophic injuries, including spinal cord injuries, brain injuries, to serious burn injuries and wrongful death. All of them require proof of liability, causation, and damages.