How does a car accident claim work? The anatomy of a personal injury claim.
Personal Injury attorneys seem to be everywhere. Just turn on the television during the daytime and chances are you’ll see one or more ads promising to fight for you if you’ve been involved in a car accident. They’ll promise that you won’t pay a fee until they recover money for you. They’ll demonize the insurance companies and warn you that those companies will take advantage of you.
It’s not so much that insurance companies want to rip you off as it is that they are simply in business to make a profit. The insurance companies, like all businesses, are going to do things that are in their best interest. If they can settle a claim for less than it is worth, they will take that opportunity every single time. They make a profit by generating more income from premiums and investments than they have to pay out in claims. The insurance companies can often settle claims with unrepresented victims of an accident because those individuals do not know their rights, are not familiar with how the process works, and don’t have the ability to effectively advocate their claim in the same way that they can when an attorney is involved.
When clients come to see us about an injury claim, there are two main things that we want to know right away. First, how did the person get injured? This is important to establishliability. With personal injury claims, the first step in the analysis, and in the prosecution of a claim, is to establish who caused the accident. Sometimes this part is easy, sometimes this part is the subject of extensive dispute. An injury claim, generally, is a claim based on the negligence of the defendant. To prove negligence in Maryland, the plaintiff must establish three elements: First, that there is a duty owed by the Defendant to the Plaintiff; Second, that the Defendant breached that duty; and Third, that as a result of the Defendant’s breach of the duty, that the Plaintiff suffered damages.
The second important question that we want answered is what is the extent of our client’s injuries? As you can imagine, injuries come in all shapes, sizes, types and degrees. As injury attorneys, we often categorize injury cases as either soft tissue or fractures. Soft tissue injuries include strains and sprains, generally any injury where the only damage is to muscle, ligaments, or tendons. Most injuries fall into the soft-tissue variety.
After the initial consultation, in most cases, we put together a demand package. If we know that liability is going to be in dispute we may skip this step, however we usually don’t know whether liability is going to be contested at this stage of the process. A demand package consists of copies of all of our client’s relevant medical records and their bills, along with proof of any other expenses that have been incurred as a result of the claim. Generally, a claim for property damage and car rental costs will be settled well before a claim for injuries and is not part of our analysis. When we put together a demand package, we will include a letter explaining how the accident occurred, explaining the injuries that we resustained by our client, and detailing the economic losses, such as medical bills and lost wages, and explain in detail the effect that those injuries have had on our client. The value of a claim is affected by many factors, including the severity of the injury, the client’s previous medical history, whether the client lost time from work and whether a permanent injury has been sustained.
There are special statutes in Maryland that govern the settlement of your property damage claim. They provide that the insurance company may not deny or delay payment of a claim for property damage because the claimant, or another person has a claim for bodily injury arising out of the same or another accident. The insurance company must pay promptly for property damage where there is coverage and where there is no significant dispute concerning liability for the payment of the full property damages or the amount of those damages, including a rental car. A payment for property damage is not to be construed as an admission of liability in any subsequent claim for personal injury.
After the demand package is sent to the insurance company, it is reviewed by an adjuster. The adjuster’s job is to try to assess liability, and where applicable, try to settle the claim for as little money as possible. Our job is to try to recover as much money as we can for our clients. There are two types of compensation to be considered in evaluating an injury case – economic damages and noneconomic damages. These are typically referred to collectively by attorneys as damages. Economic damages are the types of things that are easily quantifiable in terms of dollars and cents. Examples of economic damages include medical bills, lost wages, cost to repair property damage and rental car expenses. Noneconomic damages are things that are not easily reduced to dollars and cents. These typically include pain and suffering and loss of consortium. In our experience, people who attempt to settle their own claims often sell themselves considerably short in the area of noneconomic damages.
When we put together a demand package, we will assess the value of your case. Generally, we’ll try to predict a settlement range that accurately reflects the value of the case. Many factors affect the value of a case. In addition to the factors explained above, these factors also include the type of injury sustained, where the accident occurred, whether liability is likely to be disputed and whether the client will need additional medical treatment in the future. Other intangible factors may also apply, such as whether the plaintiff comes across as a likeable person, whether the claim will be heard by a judge or jury, and where the case can be tried.
In the typical case the insurance adjuster will make a settlement offer. If liability is disputed, and no settlement offer is made, then we must file suit in order to proceed. In most cases, liability is not seriously disputed. The typical example is when a person is in traffic and hit from behind. In cases where there is no dispute of liability, the only issue is damages. There are a whole host of reasons why an insurer might dispute damages. The most common include a disagreement overt he severity of the accident or the existence of a pre-existing medical condition on the part of the claimant.
Once a settlement offer is made, we discuss the offer with our clients. One of the first things we’ll do is go back to our previous prediction about the value of the case and see how close the settlement offer is to what we believe the case is worth. Depending on the gap between the settlement offer, and what the case is worth, we’ll either recommend presenting a counter-offer, or filing suit. Whether or not to file suit, and whether to take a case to trial is always a decision that is made by the client. While we will certainly provide our opinion, no client is compelled to accept a settlement offer which they do not agree with. Likewise, even if we believe that a case should go to trial, rather than be settled, we never proceed to trial unless our client agrees.
If a settlement agreement is reached between the parties, the insurance company will send us a check and a release. The release, signed by the client, ensures that the client will not sue the person that caused the accident in the future. If a suit is pending, when a settlement is reached, that suit is dismissed as part of the settlement. A settlement agreement is a contract that resolves the claims between the person that was injured and the person who caused the injury. It provides for compensation for the injuries that have been sustained and protects the defendant from any potential liability in the future.
If a settlement is not reached shortly after the demand package is sent, or if liability is in dispute, the next step is to file a lawsuit. When filing a lawsuit, we take a close look at the value of the case to determine in which court we want to file suit. There are generally two decisions that need to be made at this point. The first is whether we want to file in District Court, where we will get a judge or bench trial, or file in Circuit Court where we can request a jury trial. Second, a decision must be made as to the county in which the lawsuit should be filed. A lawsuit is commenced by filing a complaint. The complaint identifies the parties to the lawsuit, explains the reasons why the plaintiff is requesting assistance of the court and what relief is requested.
Whether to file in District Court or Circuit Court is primarily determined by the value of the case. If the case is likely to result in a judgment under $30,000, we will usually file suit in the District Court. If the case is likely to result in a judgment over $30,000, we will file suit in the Circuit Court. We generally request a jury trial in cases which get filed in Circuit Court.
Which county we can file suit in depends on which court has jurisdiction over the claim. Generally, the suit has to be filed in a county which has some connection either to the events giving rise to the claim, or to the defendant. A lawsuit can be filed in the county where the defendant lives, carries on a regular business, is employed, or habitually engages in a vocation. A corporation canal so be sued where it maintains its principal place of business. A claim for personal injury may also be filed in the county where the accident occurred. A claim against a non-resident defendant may be filed in any county in the state. Which county has jurisdiction to hear the claim will likely affect the value of the claim. This is due to demographic differences and tendencies of juries in some counties and Baltimore City, to award higher verdicts than in other counties.
Following the filing of a personal injury claim, the next steps depend on whether the claim is proceeding in Circuit Court or in District Court. In District Court, the claims are smaller and the rules of procedure are less complicated. A claim filed in District Court cannot exceed$30,000. When a claim is filed in District Court, we file under a special law that allows us to introduce evidence of the plaintiff’s medical bills and records, without requiring the plaintiff’s doctor to testify. This is sometimes referred to as a “10-104 case”. You might also hear people refer to a “10-104” notice. These terms come from the section of the Maryland Code, which governs these cases, Section 10-104 of the Courts and Judicial Proceedings Article.
If we are filing a claim for over $30,000, we must file in the Circuit Court. In these cases, the rules do not permit us to proceed as a 10-104 case. If the case goes to trial, we must take testimony from an expert witness, usually a doctor, concerning the plaintiff’s medical treatment and the reasonableness of the medical bills. Trying a case in which a doctor’s testimony is required is expensive. In addition to paying the doctor a fee for the deposition (typically, $1,500 or more), we must also hire a court reporter and a videographer. These expenses are not something which the court can award as damages. Therefore, we must carefully evaluate a claim before deciding whether it merits the extra expense of hiring a doctor to testify.
Once a lawsuit is filed, either in District Court, or in Circuit Court, the court will generate a summons. The summons, together with a copy of the lawsuit must be served on each defendant in the case. The defendant is under no obligation unless and until they are served. After service, the defendant will have a period of time to file an answer. In most cases, the defendant will file an answer and will serve discovery on the plaintiff. We also serve discovery on the defendant, usually when the answer is received, but sometimes with the suit itself.
In a District Court case, there is very little pre-trial discovery. The parties are limited to one set of fifteen (15) interrogatory questions. Interrogatory questions are exchanged in writing, prior to trial, and must be answered, in writing, and signed by the answering party. Like testimony, they can be considered by the judge, if introduced into evidence. Many times interrogatory questions are used to determine things such as who the witnesses in a case might be, what pre-existing medical conditions the plaintiff has, and what evidence of damages will be presented at trial. As plaintiff’s attorneys, we are usually seeking to establish two main things in pre-trial discovery – the liability of the defendant and the existence of insurance to cover a judgment.
In a Circuit Court case, there can be extensive pre-trial discovery. This can include multiple sets of interrogatory questions, up to thirty per side, request for admissions of fact and genuineness of documents, requests for production of documents, and depositions. Circuit Court cases typically will include a deposition of the plaintiff in which the plaintiff will be required to come to an office an answer questions about her claim, including her medical history, pre-existing conditions and other issues that may be relevant to the proceedings.
In a District Court case, if the damages claimed exceed$15,000, the defendant may request a jury trial. If the defendant requests a jury trial, the case will be removed from the district court and transferred to the Circuit Court for the county where it was filed. The District Court does not have jurisdiction to hear jury trials. A defendant may also request a jury trial in a Circuit Court case if the plaintiff has not already done so. It is rare that we would file a case in Circuit Court and not request a jury trial.
An injury case is presented in court, whether before a judge, or a jury, through the testimony of witnesses and the introduction of exhibits into evidence. The typical types of exhibits will include copies of the medical records and bills relating to the injury, photographs of the accident scene, photographs of the vehicles involved, and photographs of the injuries sustained. Other types of exhibits may be relevant depending on the specific case.
Even though suit is filed in a case, and discovery is completed, there is still a significant chance that a case may settle before trial. Often, we’ll have clients tell us that they really don’t want to go to court. Being ready, willing, and able to present your case to a judge or jury, is the only way to ensure that you receive fair and just compensation for your injuries. While not every case goes to trial, in fact the majority of cases settle prior to trial, we prepare and prosecute every case with the assumption that it will go to trial. We believe that this approach shows insurance companies that we are serious about our clients’ cases and that we are willing to step up to the plate and try a case where that is in the best interest of the client.
At the conclusion of your case, whether it is wrapped up by a trial or by a settlement agreement, in most cases there is a recovery of money from the defendant. Usually a check is received by us, in the mail, a few days after the parties reach a settle mentor after the trial concludes. The check, made payable to the client and to our firm, is endorsed by both parties and deposited into an escrow account. After the check clears, disbursements are made to pay medical bills, litigation costs, attorney’s fees and compensation to the client.
Various other issues can arise during the course of a personal injury case. We often assist our clients in fending off collection calls, dealing with health insurance liens, and various things that are collateral to their personal injury claim. We generally provide these services at no additional costs to our personal injury clients. We understand that dealing with the aftermath of a personal injury can be overwhelming. It is our goal to reduce the stress and anxiety that our clients experience as a result of the legal issues arising from the accident to allow them to focus on their personal recovery and getting their lives back to normal.
The information contained on this page is provided as general information and does not constitute legal advice. The experienced attorneys at Baldwin &Briscoe, P.C. can assist you if you have been involved in a motor vehicle accident. Call today to schedule a free, no-obligation, in-office-consultation for any injury related claim. The law offices of Baldwin & Briscoe, P.C. handle accident claims in Maryland and the District of Columbia.