California Personal Injury and Insurance Blog

The Statute of Limitations - How Long Is It?

I have been asked this a lot lately. People always want to know how long they have to sue. In legalese, which I hate, we call it the Statute of Limitations. This list is not complete and you should not rely on it, but I am providing some general guidelines to follow. Your case may be different and you should consult with an attorney about your specific case.

That being said, the statute of limitations is generally two years. However, if the responsible person or entity is a government entity, different time frames may apply. Against a state, county or local entity, you generally have six months to file a claim. Against the federal government, it is 2 years to file the claim.

Is that clear as mud? I hope so. Of course, figuring out who the proper defendants are, and what type of entity they are is the trick. That is why you should seek legal counsel quickly so that you can at least understand your rights and what time limits may apply to your case.

Your Attorney Won't Respond - What do you do?

A reader asked what to do when the attorney he/she hired for his/her accident refused to respond. The reader feels abandoned by the attorney.  What can he/she do?

This can be a frustrating situation. Your attorney does not always appear responsive. Remember, that there may be a good reason for the attorney not to respond. Not that I am justifying it, but you should give your attorney the benefit of the doubt since I assume you hired him/her after meeting with them and making some type of personal connection.

The first thing you should do is send the attorney a letter, via certified mail, return receipt requested, and request a written update on the case. Second, you should contact the State Bar and ask them to help. If those two things do not work in getting you a reply that is satisfactory, you should then consult with another attorney. This is a three strikes and you are out situation - they didn't respond to your calls, your letter and the State Bar.

You may have signed a lien with a chiropractor. If that is the case, remind him/her that the case is pending and that you have a contract that they will wait to get paid until the case is resolved. If your attorney is non responsive after you try one and two, your new attorney should be able to send a letter to the chiropractor advising them of this.

These are always tough situations. You are better off trying to repair your relationship with your attorney and then move forward. It is hard for a new attorney to step into the case.

Rental Cars: What do you get?

When you get in an accident, there will be a few days when your car is not driveable, either due to the damage or to repairs. Sometimes, it will even be longer. When you rent, what are you entitled to?

You are entitled to a like, kind and quality rental. So, if you own an SUV, you get an SUV. If you own a compact car, you get a compact car. Of course, be careful. The rental agencies sometimes call subcompacts as compacts so make sure that the car is actually similar to what you drive.

What do you do if the insurance company refuses to pay? (Of course, if it is your insurance company and you do not have rental coverage, they won't pay anything.) First, you should ask to speak to a supervisor about it. If the agency did not have your size car available, ask the rental car agency for a letter about why you ended up in a bigger car. That should be resolved pretty easily. If the supervisor won't resolve it, a letter to the person who hit you, with a copy of the invoice, will get their attention. Finally, you may have to consider small claims court, but if you were injured, make sure you talk to an attorney before filing in small claims court.

Good luck - rental situations often get sticky.

Treating After an Accident: What Happens When You Miss Treatment

Lets say you get in an accident.  At the time, you may not believe you are injured. However, you may then develop pain. What happens if you have a "gap" or break before you begin treating?

You may have a pretty good size gap in treatment. This gap will cause the insurance company to deny your claim or make you go through the litigation process to resolve your case. The insurance company generally views a gap in treatment negatively. There may be all types of reasons you have a gap in treatment. It could be due to a family emergency, work, or some other issue.

However, sometimes, it is a result of someone not being as injured as they thought. They skip a few appointments and then, all of a sudden, they have a 6 or 8 week gap in treatment. When this happens, you can understand why the insurance company may look dimly on this.

The moral of this tale: after an accident, go to the doctor even if it is just for a checkup. Go to all of your future appointments and do your best not to miss appointments. It is in your best interest.

Uninsured and in an accident: More on what to do

What do you do when you are at fault in a car accident, with a susupended license, and you have no insurance? This is a hard situation to find yourself in. Let me give a little advice.

The registered owner of the car is responsible for $15,000, generally. After that, they can come after the driver. If this is your car, it is not really a problem. If it is not your car, problem for the owner, who may not be happy with you. Of course, if the owner had no insurance on the car either, that brings down my sympathy level for them as well.

If neither one of you had insurance, you need to talk to the other party, or their insurance company, and see if you can work out a payment plan. That will be better than them getting a judgment against you. A judgment will stay on your credit. A negotiated settlement will not appear on your credit. You should, of course, have an attorney review any documents.

Good luck with these situations.

The BEST Insurance Company

Someone asked me who the best insurance company is. My answer is quite simple: I don't know.

Yes, I admit it. I don't know. Why? Because the best insurance company depends on a variety of factors. Here are things you should consider:

• Price
• Service
• Membership in groups
• AM Best rating
• Availability of an agent
• Claims handling
• Department of Insurance complaints

Let me explain each one. Price is pretty easy. You may want the cheapest, if price is important. But make sure you are comparing apples to apples.

Service is a bit more complex. Service includes underwriting, customer service to change your policy, etc.... The only way to find out about this is to ask around.

Membership in groups is another easy one. Are you military? USAA might be best. Are you a teacher? California Casualty takes care of teachers. If you are in a group or association, see if there might be a special insurance policy. It can make a big difference in how you are treated, even if it cost a few dollars more.

AM Best, as I have said before, rates the company's ability to pay claims. A or better is what you are looking for. Simple enough?

Agent availability is important to me. Some people do not care. However, when I have a problem, I want to be able to call someone who has a financial interest in making sure I am happy. The only way that happens is with an agent.

Claims handling is very important, but very hard to measure. I want a company that has a good reputation for resolving claims. And not just its insureds claims, but if I injure someone, I want that company to pay the claim so I don't get sued. How do you measure this? Search the internet, or better yet, call around and ask personal injury attorneys in your area. They will have the pulse on this.

Department of Insurance complaints can be checked at the website. Look at verified complaints and not just total complaints. Anyone can complain, but it is when the Department of Insurance considers it something with merit that you need to consider it.

When you have all of this information, rank it and figure out what is important to you. Then you can pick the best insurance company for you. Of course, feel free to listen to my podcast about buying insurance and ask me, if you still have questions.

Initiative Fight Over - For Now

George Joseph and Harvey Rosenfield have both put their ballot measures down for this year. According to the LA Times, Mr. Joseph dropped his initiative when he could not get support from the insurance industry. Mr. Rosenfield dropped his in response.

I think this is good for consumers. As I wrote earlier this week, the whole system is flawed. The initiatives should have been dropped and I am glad they were.

According to one lobbyist for the insurance industry, they will now focus on getting the governor re-elected. Why does that worry me?

How much influence does the defense attorney have in settling your case?

When you are involved in an accident, you may have to file a lawsuit. In California, you sue the other person. The insurance company will then assign an attorney to defend the other party. That attorney reports to the insurance company, is paid for by the insurance company, but also works for the defendant.

Many insurance policies have a provision that the insurance company, in their sole discretion, can settle a case for under policy limits without the input of their insured. Yes, they get to decide when to settle a case and when not to.

The defense attorney's primary job, at least early in the case, is gathering additional information to help the adjuster evaluate the case. Sometimes, though not often, the evaluation will increase upwards. Sometimes, the evaluation will go down. In some instances, the attorney is a warm body who has been hired because the insurance company needs an attorney to handle legal matters, but the insurance company will do as it pleases. There is often very little separation between the insurance company and the attorney, and in some cases, the attorneys are employees of the insurance company.

That is your basic outline on how the defense attorney is involved. More to come on this in the future.

Medical Authorizations: Another reason not to sign them

People ask my why I am against having you sign a medical authorization. The newest question centers on people who do not have a history of pre-existing conditions.

You have a right to privacy. You may waive that right when you sign an authorization. It is none of the insurance companies business what is in your medical records, but once they have it, the case moves from one of being about your injuries to one of being about whatever else shows up, whether it is related or not.

Maybe you had a pregnancy, or an abortion, or maybe a heart condition. Then the questions go something like this. "Mr. Smith, in 1994, you had a heart attack, correct?" "And were you in pain after?" "And how would you rate that pain?" "Isnt it true that pain was worse than the pain from this accident?"

The insurance company has now minimized your pain because you gave them unfettered access to your medical records. For this reason, along with the others I have discussed, it is not something you want to do. 

Fault in California Car Accidents: A Brief Explanation of Comparative Negligence

This has come up a few times this week. Usually, the context is someone receiving a letter from their insurance company putting fault on them for an accident. The insured disagrees and wants to know what to do.

Without knowing the facts of the accident, it is impossible for anyone to say who is at fault. Think of fault like a pie. The whole pie is 100%. The insurance companies and/or a jury can divide the pie any way they want. If the insurance companies agree on fault, that is fine. But, their decision is not binding on anyone. I don't know why adjusters think that their decision is final, but it is not. The final decision, if it goes that far, rests with the finder of fact, either a judge or a jury.

If you were not injured in an accident, there is usually no need to get an attorney. It won't help unless your damages are over $7,500, the new limit for small claims court in California. If you were injured, you probably want to see an attorney and talk about the facts of the case.

If it is just damage to the car, your insurance company will pay 100% of the damage to your car under your collision coverage. You will pay your deductible to the shop and then your insurance company, at some point in time, will send you a percentage of your deductible back. If you were 80% at fault, they will send you 80% of your deductible. If you were 20% at fault, they will send you 20%.  Your insurance company will pay a percentage of the other person's damage (probably through subrogation) based on your percentage of fault.

Finally, if you disagree with your insurance company's decision, you can request the matter be reviewed by the insurance company. If you are still not happy, you can ask the Dept of Insurance for a review. If the finding stays 51% or more your fault, your rates will go up.

I hope this helps.