California Personal Injury and Insurance Blog

Go to the Doctor After A Car Accident!

I have had quite a few people call me lately wanting to talk to me about their car accident that is 2 or 3 months old. I ask them about medical treatment and I get the same response: I haven't been to the doctor yet.

As I wrote in my report, "10 Fatal Mistakes In Filing An Auto Insurance Claim:"

Even if you are not sure if you are hurt, go to the doctor. Let them examine you. It could take a few days or weeks for you to feel pain. Once you do, go to the doctor. If your airbags went off, go right away. The powder from the airbags can cause small burns.

Most insurance companies will only consider treatment if it occurs within 4 to 6 weeks of the accident. If you wait longer than that, most insurance companies will argue that the injury is not accident related. And, juries usually agree. Jurors want to see that you treated within days or weeks after an accident, not months. As the time grows between the auto accident and the treatment, it becomes harder to prove your case.    

What is used to determine your medical bills?

This is an important question. Why? Because your medical bills are part of the settlement of your case. When you are injured, you are entitled to recover your medical bills, both past and future, as well as your pain and suffering.

This should be relatively straightforward, right? After all, add up your medical bills and you have your number. At least, that is what most of us would do. But, in law, there is more to it.

Plaintiff's attorneys, people who represent the injured party, take the side that most of you take: it is the amount of the medical bills. Insurance companies believe that your medical bills are actually only the amount paid by your health insurance, Medi-cal or Medi-Care. In other words, the insurance companies want to pay as little as possible. Is anyone really surprised? Probably not!

If you are injured, you need to demand payment in full for your medical bills. Do not let them reduce the bills down to the amount paid. There is no authority in the law for them to do this, especially if you have private insurance. If they refuse, you should talk to an attorney.

What makes a trial lawyer?

This is always a fascinating argument. Here is the debate out of Memphis, TN from my friend James Ferrell.

This is simple from my perspective. First, if you want to call yourself a trial attorney, you need to try cases. That is what people think of when they think of trial attorneys. They think of an attorney who is in court.

Second, if you are looking to hire an attorney, you want a trial attorney. Why? Because that person will get more respect from the insurance companies. They know that an attorney who tries these cases will cost them more money. And they know they can, and often do, lose. Additionally, the insurance company knows that they do not have to make a fair offer to an attorney who does not try cases because there is no downside to them. They know he will settle the case at some point.

A trial attorney: someone who actually tries cases. And that is who you want on your side if you have been involved in a car accident.       

Police reports are not evidence

This is a topic that comes up often. In fact, I hear it not just from clients, but also from many insurance adjusters. They tell me that the police report is admissible evidence that my client did something wrong.

The simple fact is that the police report itself is not evidence. A jury will never see the police report. The jury can hear about the investigation. The jury can hear what the police officer saw or heard. But the jury will never see the report or hear the officer's conclusions.

Why? First, the police report is hearsay. It is an out of court statement. It is not admissible for that reason. But, beyond that, the California Evidence Code specifically excludes the police report. Therefore, the report never makes it to the jury and the jury never hears what the officer determined.

The question of fault is a question for the jury to decide. So, while important, the police report is not the final determination of who caused an accident.

Loss of Consortium

Sometimes people ask me about filing a loss of consortium claim. Well, that is not how they put it, but that is what it is called. They ask about a claim for the spouse of the injured person. And they want to know if they can make a claim and what is involved.

We can start easy. Can you make a claim? Yes, but only if you are married. If you are dating, engaged or "seeing each other," then you do not have a loss of consortium claim in California. California limits loss of consortium claims to a married couple.

Now, what is involved? That is more complex. In California, loss of consortium is the loss of spousal services. So, if your spouse cooks, cleans and does the laundry, you can recover for that. If your spouse cuts the grass, trims the bushes and fixes the car, you can recover for that. In general, you can recover for the loss of whatever your spouse normally did but cannot do as a result of the collision.

Talk to your attorney about a loss of consortium claim. These are tricky claims and require an experienced attorney to review and value.

The value of a good lawyer

Some people think a good attorney can just increase the value of your case. And he or she can, as I will discuss. But, before we get there, a good attorney can help you avoid wasting your time.

Case in point: attorney asks me today if his client can pursue a claim against his insurance company when the client was at fault for the accident. The answer, as every driver's ed student at Franklin High knows, is no. Uninsured motorist coverage only protects you if the at fault driver has no insurance. There is no insurance to pay you if you cause an accident.

But, this attorney was actually pursuing this claim. How much time and energy were wasted on a case that never had value? Too much.

In addition to avoiding wasting your time, a good attorney will get you more for your case. Insurance companies do not want to talk about it. But, their own reports show that an attorney can get you 30 to 70% more, on average, then you can get on your own.

How do you hire the right attorney? Besides reading my blog, you can get my free report by emailing me at hiringatty@jonathangstein.com to learn how to hire the right attorney and how that can get you everything you are entitled to after an accident.

FAQ: Reporting Auto Accidents

I have written about this before, but it has been some time. So, I thought I would do it again.

Q: I have been involved in a car accident. Must I report it to my insurance company?

A: The simple answer is yes. Your insurance policy says that any accident must be reported. The policy is clear that you do not have to report a claim, but rather anything that may lead to a claim. So, if your car is vandalized, it must be reported. If you hit a mailbox, it must be reported.

But, the reality is different. If you have a small ding from someone hitting your car in a parking lot, you may elect to repair it yourself. If you have a small accident where you hit your neighbor's mailbox, you may decide to pay for it out of pocket.

Why? Because if you have an at fault accident and the insurance company pays out $750 or more, your rates will go up.

So, yes, technically you have to report every accident, but in reality no one does.

FAQ: Your Car is a Total What?

Q: My car was involved in a collision. I can still drive it. The insurance company is calling it a total loss. Why?

A: A car can be a total loss in one of two ways. The first way is simple: if the car is completely demolished. You know, the type where the car burns up completely or you cannot tell the front from the back.

The second way is more complicated: the cost to repair the car is 75 to 80% or more of the value of the vehicle. So, if you are involved in a collision and the repair costs are $7,500 and your car is worth $10,000, then the car is a total loss. For more expensive cars, this is clearly harder as it requires substantially more damage. But, if your car is worth $1,000, it only takes $750 in repairs to consider your vehicle a total loss. This could be replacing a bumper or a door.

Remember, you can have a total loss with the car not looking like it is completely damaged.

One final note: if your car is a total loss, it will have a salvaged title. You do not want a car with a salvaged title. You may not be able to insure it and you sure will not be able to sell it.

Your Insurer Must Take a Claim

In the last two days, I have come across the same story twice: I have been involved in a car collision that was not my fault and my auto insurance told me I had to file a claim with the other party. WRONG!

In fact, this could not be more wrong. There are three reasons this is wrong:

1. Your insurance policy requires you to report all claims to the insurance company. You MUST report a claim. So, why would they refuse to take it?
2. Your insurance company has an obligation to pay any claim that is covered. By law in California, they cannot tell you no.
3. Your rates do not go up for filing a claim.

The simple truth is that insurance companies do not want to take your claim because they do not want to pay out money. They want to keep their money as long as possible. If they can discourage you from filing a claim, it is one less claim to deal with and more money for them to keep.

If you have been in a collision, report it to your insurance company. If they tell you no, tell them you want to anyway.

Settling a Property Damage Claim

Okay, so hypothetically lets say you are leasing a 2007 Lamborghini. Nice car. Very nice. You have collision coverage on it, as is required by the lease. And some guy driving a 1972 Ford Pinto rear ends you. After all, if you rear end him, there is a good chance of an explosion! Now, you have $25,000 in damage to your car and he has a $5,000 property damage limit. What do you do?

This is an easy one. You report it to your insurance company and you let them fix your car. Why? Because if you settle with the other party, you have to sign a release. When you sign the release, you are not entitled to anything else. If the lessor decides to come back to you for "diminished value," you could be on the hook for it. If, however, you have not signed a release, you let your insurance company and the lessor fight this one out. You get to sit on the sidelines.

Remember, if you are not at fault, the smart claim is to your insurance company and let them fight to get the money back. That is not a fight you are equipped to deal with in either time or money.