In our society, personal injury caused by someone else is compensated with money. It is the great equalizer. Unlike some other places around the world, we don’t take an eye for an eye. we don’t take the wrongdoers’ firstborn child nor trade a lifetime of indentured servitude. We take money to make us whole. Like it or not, it’s the American way.
The following is a guide to personal injury accidents when dealing with the person that injured you and their insurance company. The following tips and pointers are based on California personal injury law. Although your state’s laws may be the same or similar, if you have a claim outside of California, you should consult an attorney in that state.
The following are some things to avoid when you plan to file a personal injury claim.
Following an accident, there are some things you may do or say, even with the best of intentions, that may be used against you later to reduce the amount of damages that you are otherwise rightfully entitled to recover.
Do not admit guilt, claim responsibility, or make an “excited utterance.”
Generally, hearsay evidence is inadmissible in court. Testimony that “he said” this or “she said” that is considered questionable and often excluded from evidence because it is difficult to gauge the accuracy of such statements without having actually witnessed it.
However, an exception is hearsay that is considered to be an “excited utterance”.” These are statements made in an excited state, such as immediately following an accident. Courts consider statements made in an excited state to be honest and therefore allowable as evidence even. if presented as hearsay.
For example, the driver of a vehicle that just caused an accident might jump out of the car and exclaim, “oh my gosh, I didn’t see you, I didn’t notice the light was red, I was on my cell phone, this is all my fault!” A witness to these statements will be able to quote these statements later in court, even though it will constitute hearsay at that time.
As the victim of an accident, during the heat of the moment and rush of adrenaline, you may feel compelled to say things like, “I’m ok, I’m not hurt, it wasn’t your fault,” etc. Beware that even if statements such as these prove not to be true later, the simple fact that you said them can still be used against you. So, it is better not to say them in the first place.
Do not decline medical treatment or deny injury.
In many instances, especially with adrenaline pumping through your body, immediately following an accident, you may not actually “feel” your injuries until sometime later. In extreme cases, you could have a significant internal injury that you do not feel until much later. Head injuries, internal bleeding, or organ damage can often take days before their symptoms surface yet can have devastating effects.
When in doubt, go to the hospital and get checked out. The last thing you want is to slip into a coma (or worse) the next day because of a slow brain hemorrhage caused during an accident, after which you said you were fine because you didn’t feel anything right away. Even worse, your statement that you felt fine could be used against you later.
Do not give a recorded statement.
Insurance claims adjusters are highly trained at defending claims. That’s their job. They know what hearsay evidence is and that it is often inadmissible in court.
To circumvent this, they will often seek to get a recorded statement from you, by phone or in person, by their own efforts or through a hired investigator. It is not uncommon for them to try to take your statement while you are still in the hospital and even while you are under the influence of heavy pain medication.
No matter what the circumstance, keep in mind that there is nothing you can say in a recorded statement that will help your claim and you have absolutely no obligation whatsoever to give a recorded statement to anyone, ever.
There is nothing you can say that will change the claims adjuster’s perspective; they are gathering facts and information to support their case against you. The only thing a recorded statement can ever accomplish is to hurt your claim and improve the adjuster’s case against you.
Do not sign any documents.
As unbelievable as it may be that someone from the insurance company would actually try to take your statement while you’re heavily medicated in the hospital, it is also not unheard of for someone to try to get you to sign settlement documents for pennies on the dollar while you’re barely coherent. If you remember only one thing from this article, remember: do not sign anything unless you are clear-headed and after you have consulted with an attorney.
Seek immediate medical attention.
Many significant injuries are not immediately noticeable and may not present any immediate symptoms, pain, or even discomfort. For example, you may not notice any symptoms from a closed head injury for several hours or even the next day. Internal bleeding may not cause any discomfort until sometime after the actual accident. In any of these cases, however, if the injuries are not diagnosed and treated correctly and quickly, the results can be devastating and in some instances, even life threatening. You can avoid tragedy by going straight to the hospital after the accident to get checked out by a doctor.
Inform your own insurance company of the accident.
Most, if not all, insurance policies require you to report an accident to your own insurance company within a certain amount of time even if the accident was not your fault. Your own insurance company can be a good ally after an accident. In many instances, they will pay upfront to repair any property damage, provide a rental vehicle, and in some cases, even help pay your bills if you are unable to work. Then, they will go after the other person’s insurance company for reimbursement without your having to do anything.
In some cases, they may even hire a lawyer for you. But be careful: in certain situations, the interests of your insurance company may conflict with your own. For example, if the other person’s insurance is insufficient to cover the damage that the other person has caused you, your own insurance may try to minimize their own obligations to cover them.
In any event, it is a good idea to get an attorney for yourself on your own. Most reputable attorneys will provide their services to you on a contingent fee basis. There will be no up front, out of pocket cost to you for their services and any attorney fees will be taken as a percentage of any monetary recovery they gain for you first. Most importantly, your own attorney will not have any interests that work in conflict to yours.
Call the police at the time of the accident.
If you are able, you should call the police from the scene of the accident immediately after it occurs. The police will collect information such as the other person’s contact and insurance information, identify any eyewitnesses, and will likely write a report outlining their preliminary investigation of the accident and how it happened. They may even write a ticket for the other driver which may support their fault in causing the accident.
Gather facts and information.
Even if the police are called to the scene of the accident, if you are able, you should collect as much information as you can on your own. Get the other person’s driver’s license and insurance information. Gather information from any witnesses. Take any photographs that you can of the scene of the accident and any damage caused to your vehicle, their vehicle, and to yourself.
If you’ve suffered visible injury, document your injuries with photographs and keep a journal of any symptoms you experience. Cuts and bruises will heal and if your case goes to court later, photographs will show what your injuries looked like while you were hurt.
If you are able, take photos of any skid marks on the roadway before they fade or are washed away. Take pictures of any damage to your vehicle and the other vehicle before they are repaired. All of these things will only help your case later on.
Preserve physical evidence.
Although it may be a macabre task and a painful reminder of your suffering, preserve any physical evidence that you can of the accident without altering it. For example, keep any damaged clothing or other damaged property that does not need to be repaired immediately in a safe place. These items will be valuable evidence of the accident and your injuries later on.
Consult an attorney.
If the accident is minor, if you did not suffer any significant injuries, and if there was no major property damage, you may not need to actually hire an attorney. Otherwise, it is usually a good idea to at least consult with an experienced personal injury attorney, even if you decide not to hire one, which you have no obligation to do, just to assess the seriousness of your potential case.
Whether you consult with or hire an attorney to handle your case, however, remember, there are time limits for filing a legal claim against the other person. If you fail to file a lawsuit in time, you may be barred forever from filing any such claim.
Contact Avrek Law Firm for a free consultation.