IMPORTANT: My answers to these questions and everything else on this Website is NOT intended to and does not constitute legal advice. It is intended for general informational purposes only, and is NOT a substitute for consulting an attorney.
- Can I handle my personal injury case myself ? (i.e., why should I pay an attorney?)
- How long do I have to settle my case or file a lawsuit? (i.e., what is the Statute of Limitations?)
- What am I entitled to recover?
- Should I use health insurance or automobile insurance Med Pay to pay for my medical bills?
- What if the person who hit me does not have insurance?
- What if I did not have automobile insurance at the time that I was involved in a collision (i.e., a motor vehicle collision, motor vehicle versus pedestrian collision, bicycle or motorcycle collision)?
- Is there an explosion of personal injury cases in California?
Q: Can I handle my personal injury case myself ? (i.e., why should I pay an attorney?)
A: Obviously, everyone would prefer not to have to pay fees to an attorney in order to obtain the full value of their claim. Unfortunately, insurance companies do not feel any pressure or motivation to offer a claimant who does not have an attorney the full value of their claim. Thus, in deciding to hire an attorney, you need to consider the value of your time spent in fighting the insurance company. If you end up with the same amount of money in your pocket by hiring an attorney, because your attorney does all of the legal work, you save yourself a lot of your valuable time, energy and hassle by retaining an attorney.
If the amount in controversy is less than the jurisdictional monetary limits for Small Claims Court in their county (generally $7,500), it is often more economical for you to attempt to settle your claim yourself. Insurance companies generally find it financially beneficial to settle claims under $7,500 with unrepresented claimants so that they can avoid paying hourly attorney’s fees to defense counsel that may approach or even exceed the value of the case. However, the more the value of a case exceeds $7,500, the more difficult it is to convince an insurance company to pay the full value of the case. In Small Claims Court, neither side is allowed to have an attorney appear in court, so it is usually a relatively quick and economical process for resolving claims under $7,500 that is beneficial for both sides. Most counties have Small Claims Court instructions and sometimes free advisors.
I had a client who had constant spine pain from a collision, and because the person who caused the collision had no insurance, she had an Uninsured Motorist claim with her own insurance company. Before hiring me, she tried to settle her claim with her insurance company for two years, and they repeatedly stated that they would make her an offer but never did, so she hired me to handle the claim. Even after I battled with her insurance company for more than a year and they deposed many of her friends and co-workers, their final offer was $125,000. I advised her to proceed to arbitration, and after a bitterly contested arbitration in which the insurance company doctors testimony bordered on unbelievable, we received an award of $390,987.57, more than three times the final settlement offer. Because she had a more significant case, even after paying me attorneys fee, it clearly was the correct decision to hire me to represent her.
Q: How long do I have to settle my case or file a lawsuit? (i.e., what is the Statute of Limitations?)
A: California law provides that for incidents involving bodily injury which occurred after January 2003, a plaintiff generally has two years from the date of the incident or collision to settle their case or file a lawsuit. If you do not file a lawsuit within two years of the date of the incident or collision, you will probably lose all your rights to recover any damages. However, this deadline, known as the Statute of Limitations, can vary in certain situations. For example, if a governmental entity (such as a city, BART, an A.C. Transit bus, a public school, a public hospital, etc.) is involved, you are required to file a government claim (not a lawsuit) with the governmental entity within six (6) months of the date of the incident. Your attorney can file this claim for you, or you can do it yourself. However, if you file it yourself and leave out certain necessary information, or do not properly characterize the governmental entity’s liability, the governmental entity may later argue that you did not make a proper claim, and have your claim may be deemed invalid and you will not be able to recover any money. In addition, after the governmental entity rejects your claim (they reject virtually every claim other than small property damage claims), the Statute of Limitations for filing a lawsuit against the governmental entity varies depending upon the manner in which they reject the claim.
Generally, the courts are very strict regarding the Statute of Limitations, and if you have not resolved your claim or file a lawsuit before the Statute of Limitations expires, you lose your right to recover any damages. There are a few exceptions where the Statute of Limitations is tolled (i.e., extended beyond a year), such as if you are incapacitated (for example, in a coma), or if a defendant is out of the state for any period of time before the Statute of Limitations expires. For minors, the time period for calculating the Statute of Limitations does not begin to run until their 18th birthday, so the Statute of Limitations would not expire until they are 20 years old. Nonetheless, it is extremely dangerous to take any risk with the Statute of Limitations, so if you decide that your injury is serious enough to hire an attorney, you should find and retain an attorney as soon as possible. It is also wise to retain an attorney as soon as possible so that evidence can be preserved by your attorney before it fades or is lost. Many attorneys (including myself) are extremely reluctant to become involved in a case in which the Statute of Limitations is about to expire (unless there are major injuries involved). So, if you are going to have an attorney handle your case, the earlier you consult an attorney the better. Even if you believe that the Statute of Limitations may have already expired, you should still consult an attorney to determine if there are any exceptions to the Statute of Limitations that apply to your case, rather than assuming that your claim has been barred by the Statute of Limitations expiring.
Q: What am I entitled to recover?
A: California law provides that a person is entitled to recover all economic and non-economic damages arising from bodily injury or property damage proximately caused by the negligent conduct of another person. Examples of economic damages include medical bills, wage loss, loss of earning capacity, property damage, the reasonable value of gratuitous home health care services, etc. Examples of non-economic (general) damages include pain and suffering, loss of enjoyment of life, loss of enjoyment of one’s profession, emotional distress, loss of consortium, etc. Even though economic damages are much easier to quantify than general damages, insurance companies still often challenge claims for economic damages, and will make you prove them with hard evidence before they agree to compensate you for their loss. Non-economic (general) damages are more difficult to quantify than economic damages. Many factors go into calculating non-economic damages, and it is more of an art form than a science. After many years of handling cases for plaintiffs and defendants, as well as reviewing jury verdicts from cases all over California, I have developed a good “feel” for estimating general damages depending on the county in which your case is venued the type and permanency of your injury, your medical treatment, age, occupation, activity level, etc.
You are also entitled to recover damages arising out of the intentional conduct of someone else. However, since insurance does not pay for damages resulting from someone’s intentional conduct, you would have to recover damages resulting from intentional conduct from their personal assets. In rare situations, you may also be entitled to recover punitive (exemplary) damages, which are in addition to compensatory damages and are intended to punish the defendant for oppression, fraud or malice.
Q: Should I use health insurance or automobile insurance Med Pay to pay for my medical bills?
A: This issue can be complicated and varies depending on the specific facts of each case, and as your attorney I analyze the details of your case in order to help assist you in deciding what would be more economically beneficial for you.
Q: What if the person who hit me does not have insurance?
A: Many people think that if the person who caused the incident or collision (or who is at least partially at fault) does not have insurance, that they are out of luck as far as obtaining any recovery for their injuries and damages. You can try to obtain compensation from their personal assets, but it is far easier to make an Uninsured Motorist (“UM”) claim to your own insurance company. As long as you have adequate UM limits, under current California law it is often better to have a UM claim with your insurance company than a third party claim against the adverse driver. Many people think their insurance premiums will increase if they make a UM claim, but your rates should NOT increase if the collision was not your fault.
IT IS MY OPINION THAT EVERYONE SHOULD HAVE AS MUCH UNINSURED MOTORIST COVERAGE AS THEY CAN POSSIBLY AFFORD! Uninsured motorist coverage is very inexpensive compared to liability coverage, and I advise everyone I know to have at least $100,000 per person coverage, and preferably $250,000 or $500,000. If you have uninsured motorist coverage, your own insurance company is required to pay you all the damages that you would be able to recover from the adverse driver if he or she had insurance. If the adverse driver does not have enough automobile liability insurance to cover all your damages (many people have only $15,000 per person liability insurance coverage, which is all that is required by the State of California), after you obtain all of their policy limits, you can then make an Underinsured Motorist claim to your own insurance company. Uninsured and underinsured motorist claims do not proceed through the court system, but are governed by completely separate provisions of California Insurance Code. Because the Insurance Code provisions are somewhat complicated and at times contradictory, there are many pitfalls and traps that even attorneys can get caught in when pursuing these types of claims. For more information, please see my article on uninsured and underinsured motorist claims elsewhere on this Website, which I had published in Forum, the state legal magazine for plaintiffs’ attorneys. (Click Here)
Q: What if I did not have automobile insurance at the time that I was involved in an accident?
A: Unfortunately, if you did not have the required minimum $15,000 automobile liability policy limits at the time that you were involved in a motor vehicle collision, your rights to recover damages are severely restricted by Proposition 213. In November, 1996, Prop 213 was passed into law by the voters of California. It provides that fleeing felons, drunk drivers, and uninsured motorists are not entitled to recover any non-economic damages (such as for pain and suffering) resulting from a motor vehicle collision, even if another driver is completely at fault for causing your collision. However, Prop 213 only applies to drivers, and thus does NOT apply to passengers.
Voters had strong feelings about denying recovery to fleeing felons and drunk drivers, but apparently did not know (or did not care) that uninsured motorists were also denied their rights to recover non-economic damages. Several consumer groups challenged Prop 213 as unconstitutional in the courts, but all the initial attempts to overturn it have been denied. Please feel free to call me if you have any questions regarding whether Prop 213 applies to your case.
Q: Is there an explosion of personal injury cases in California?
A: Unfortunately, many jurors have been prejudiced by insurance company propaganda, and are closed-minded and cynical about personal injury cases in general and claims for pain and suffering in particular. A major reason for this bias seems to be that they believe (incorrectly) that there is an explosion of personal injury cases in California, and that this imaginary “explosion” of injury cases is causing insurance rates to skyrocket. In reality, the number of personal injury cases has sharply declined in the last decade or more, and it is the criminal cases and lawsuits between big businesses that have sharply increased. The California Judicial Council, which is the state governmental body that keeps track of lawsuit filings, noted a 48% drop in filings of motor vehicle collision lawsuits in the 7 years from 1988-1995. In addition, insurance rates are effected very little (if at all) by large personal injury verdicts.
Insurance companies have done such a great job of creating a myth of a litigation explosion that the vast majority of the general public believes it, sometimes even after they are informed of the California Judicial Council statistics. Large verdicts are highly publicized for their “shock value,” usually without reporting all the crucial facts that the jury which rendered the verdict had carefully considered. Unfortunately, the many cases where people are brow-beaten by much more powerful insurance companies into accepting unreasonably low sums for legitimate and significant injuries receives very little, if any, publicity. See my article on uninsured motorist cases elsewhere on this Website regarding a case in which my client’s own insurance company tried, among many other things, to pressure her to accept $750 for a case which eventually settled for $100,000 after I was retained and battled the insurance company for nearly a year. Of course there are fraudulent or exaggerated personal injury claims (just as large corporations exaggerate their losses in business litigation against other businesses), but having worked for both insurance companies and injured claimants in my career, I believe that injured claimants rarely recover more than the fair value of their case, and many times only recover a fraction of what they truly deserve.