Personal Injury Answers
By Glenn Wald
Monday, February 28, 2005
You may have read something in the paper or heard on the
news. You might have seen the details about some lawsuit where somebody dumped a
coffee or bit into the wrong bagel and next thing you know...
Someone receives significant sums in a lawsuit...It seems frivolous to some but let's take the example of a tragic accident...
The 'victim' might proceed with personal injury actions -
or to be blunt, suing someone. Now in any personal injury action, you've got to
be able to clearly demonstrate someone else was at fault...
Car accidents are the best example for understanding personal injury.
If someone other than you caused the accident, then the you can make a claim. If you caused the accident, then no claim can be made - but a claim could be made against you.
In many car accident cases, both drivers may be at fault. But remember, somebody is almost always more at fault than somebody else. That might sound funny but imagine this scenario...
Two drivers are both headed toward each other. One driver is trying to tune the radio and so is the other driver - both cars swerve directly into each other but...
The other guy was talking on the phone too...
If it is difficult to determine who was more at fault, a
claim should be made just the same. Keep in mind that passengers always have a
right to make a claim, usually against both drivers and their insurance
companies. Passengers can also make claims against the insurance company for
their spouse or other relatives.
Other examples of personal injury cases involve product liability, slip and
falls, industrial accidents, farm accidents and medical malpractice. If the
injury is caused, even partially by someone else's fault, a claim should be
investigated. An experienced personal injury attorney should be consulted as
there are often cases against parties that are not apparent to the survivor or
his or her family. In most states, a personal injury accident can not be brought
against the employer of the survivor, as the worker's comp benefits are the
exclusive remedy. However, just because an individual was injured at work, does
not mean that no one else can be sued. For example, if a survivor was injured on
a defective machine, the manufacturer of the machine could possibly be liable.
A personal injury action usually starts with an effort to negotiate a settlement
without court action. If that is unsatisfactory, a lawsuit is filed. Ultimately,
if a settlement can not be reached, the case will be tried before a court and a
jury.
If there is enough insurance or a big enough company involved, personal injury
claims will generally provide a greater recovery than social security or a
workers comp action. The reason for the higher compensation is that the survivor
is entitled to be compensated for the full pain, suffering and disability
incurred by the survivor. Medical bills are fully recoverable, as well as any
loss of earning capacity. Brain injury damages are best suited to the full
process of proof that a court case entails. While no amount of money can replace
what a survivor has lost, juries tend to do their best when presented with the
complete picture of disability.
The problem in most personal injury cases for the brain injured survivor will be
finding enough insurance, or a deep enough pocket, to fully compensate for the
loss. This is a serious loss and deep pockets are needed to support and assist a
brain injured person...
By a deep pocket, it is meant a company or individual with
the capacity to pay a large verdict or settlement. With the cost of extended
hospital care being several times the average person's auto insurance limits,
this is an issue in most auto cases. The experienced attorney will look at
several different sources to expand the compensation available. There is often
more than one insurance policy available, to do what is called stacking. If the
survivor or someone in his household had underinsured coverage, this may be used
to increase the recovery. Often, it becomes a matter of looking past the obvious
wrongdoers to see if there lurks a hidden wrongdoer in the accident.
The critical mistake in too many personal injury cases is that an insurance
adjuster convinces the survivor or his family to settle for a relatively modest
sum, before the full extent of injury or entitlement is clear. When faced with
the pressure of catastrophic medical bills, the promise to pay all the bills may
sound wonderful. But no one with a traumatic brain injury should be left with
nothing. Regardless of how much they try to endear themselves to you, the
insurance adjuster is not your friend - ever. He is not offering to pay medical
bills out of the goodness of his heart, but to avoid paying substantially more.
The insurance adjuster's job is to pay as little as he can. Don't sign anything
until you have at least consulted with an attorney.
Lawyers can be of great assistance to the survivor in recovering benefits to
which he or she may be entitled. While it is possible to find your way through
the multi-layered process to maximize a recovery without an attorney, it makes
sense to at least talk to an experienced lawyer now to best understand your
position.
