Auto Accidents

What follows is a some free legal information regarding the above titled matter for educational and discussion purposes only. This is not to be used in all matters or cases, and each matter or case is different. What follows is for discussion purposes only and should not be used in any particular matter or case. It is an example from what has been used in another matter or case, and will like not apply to someone else's matter or case.
Disclaimer: Free legal advice does not establish a attorney-client relationship
WHAT SHOULD I DO AFTER A TRAFFIC ACCIDENT?

If you are involved in a traffic accident, in most states, you are required to exchange information. This information should include your name, address and telephone number where you could be reached during the day and at home. You may provide either your home or business address, your insurance information, including the name of your insurance company and the policy number. If you have failed to provide all of this information at the scene of the accident you should contact the other party and provide the missing information to him or her.

Many states, including California, require that if a police report is not made of the accident, and if the accident involves over $500 in property damage or any claim of injury, a form must be filled out with the Department of Motor Vehicles setting forth the basic information concerning the accident and insurance information. Other then exchanging basic information at the scene of the accident, it is generally not advisable to discuss any of the details of the accident, issues of fault, or any other matters other then the basic exchange of information.

If the police arrive on the scene and begin to investigate the accident, you are not required to give them anything other than the basic information that you are required to exchange with the other driver. If you believe that you are at fault in the accident or that the accident may have concerned the use of alcohol or control substances it is generally not advisable to volunteer any additional information. If the police request that you participate in a field sobriety or similar test, and you fail to cooperate, in many states, including California, it can be used as evidence against you, and will probably result in suspension of your driving privileges.

If you feel any pain or discomfort at the time of the accident, you should report the areas of pain and discomfort immediately to anyone investigating the accident so they make proper note of it, and if necessary provide appropriate medical assistance. After you receive your initial medical assistance, if necessary, you should contact an attorney who specializes in accident cases to ascertain your specific rights and responsibilities concerning the accident.

HOW IS FAULT DETERMINED?

Expect for a few "no fault" states, most states, including California, require proof of fault before any recovery can be obtained. Most states, including California, have adopted the "comparative" fault system where the fault of the different parties is determined. The person making the claim may be partly at fault, and still receive recovery. For example, a person with the right of way driving a few miles over the speed limit may be involved in an accident with a person driving in the opposite direction who had turned in front of them. It could be determined, for example, that the car driving over the speed limit was 25% at fault, and the car that was turning in front of it which did not have the right of way was 75% at fault. Under the comparative law system, the "speeding" driver would receive a recovery that was reduced by 25% because of the speeding.

It should also be noted that some states, including California, limit recovery for damages for pain and suffering to the percentage of fault of the various defendants. For example, in the case where a driver crosses over the center divider causing an injury to an oncoming car and it was found that poor lighting conditions on the roadway also contributed to the accident, it could be found that the defendant driver that drifted over the line was 90% at fault and the highway department was 10% at fault because of the design or maintenance of the roadway. If the total recovery were $300,000.00, of which $100,000.00 was for medical expenses, property damage, and lost past and future earnings, and $200,000.00 was awarded for general pain and suffering, both the driver defendant and highway department defendant (i.e the state) would be fully responsible to pay for the $100,000.00 economic loss, but the highway department would only be liable for $20,000.00 (10%) of the $200,000.00 award for pain and suffering and the driver would be responsible for the $180,000.00 (90%) of the pain and suffering award. This issue only arises in cases where there are multiple defendants.

If you were working at your job at the time of the accident, you may be entitled to some benefits regardless of who was at fault. See, what if I was injured on the job?, discussed below..

WHO PAYS FOR MY CAR REPAIRS?

Car repairs are part of special damages and the cost of repairs is recoverable from the person who is at fault in the accident. If you are not at fault, and you have collision coverage you have a choice, you can either have your own insurance arrange for the repairs under the collision coverage portion of your policy or you can attempt to have the person at fault or their insurance company arrange for the needed repairs. If your insurance company pays for the repairs, they may seek reimbursement from the other driver or the other insurance company.

It is generally a good idea to get more than one estimate unless your own insurance company or the other insurance company handles the necessary repairs immediately. Even after your car is repaired, you still may have a loss for "diminution" damages because your car may have less resale value because it is necessary to disclose the fact that your car was involved in an accident. Also, in addition to the repair cost you are generally entitled to a rental car for the reasonable time needed to make the repairs. Note, that if your car is a total loss, meaning that the cost of repair would exceed the cost of purchasing a similar vehicle in a similar condition, your loss is limited to the fair market value of the car. That's generally the "high" blue book value plus state and local sales tax and a portion of the licence fees, which is what it would cost you to replace the car.

MUST I REPAIR MY CAR?

It is generally not necessary that you have the car repaired. You can accept payment for the cost of the repair in lieu of having the work done. This may not be possible in circumstances where your car has been financed, since the financing company, which usually has a lien on your car, generally requires that the car be repaired. If the car is a total loss, the financing company will want their lien paid off before any money is distributed to you.

WHO PAYS FOR MY MEDICAL BILLS?

Generally, the person who is at fault, or their insurance company, is liable for all present and future reasonable and necessary medical treatment following an accident. This can include orthopedic doctors, physical therapy, chiropractic care, nursing care, ambulance cost, prescription medication, rehabilitation, and pain management cost. These are just some examples of the types of medical expenses that may be incurred by you in an accident. If you have medical insurance, it is often a good idea to first have your own insurance company pay these bills. Some states, including California, allow full reimbursement for the cost of the reasonable and necessary medical treatment even if your own insurance company has paid the bills in full or in part. The theory in these states is that since you have paid premiums over the years, this is like a savings account, and when the payment is made by your insurance company, it is really your own money that is being used to make this payments. Some insurance companies have reimbursement provisions which provide that if you utilize your own medical insurance, the insurance company seeks a portion of the recovery to reimburse it for it's payments. Each medical insurance policy is unique and would need to be examined to see if there is a potential for reimbursement. Of course, where there is no recovery from the other party, then there is no requirement of reimbursement to your own insurance comany.

WHAT IF I DON'T HAVE MEDICAL INSURANCE?

If you do not have medical insurance or "med pay" under your automobile insurance, many medical providers will not be willing to wait until your case is resolved for payment for services. Some medical providers will perform services, but may require a lien be signed by you and your attorney to guarantee payment when your case is settled.

WHO PAYS FOR MY PAST AND FUTURE LOST EARNINGS?

As in the case with payment for property damage and medical bills, the party at fault is responsible for payment of past and future lost salary or earnings. Past lost earnings is recoverable even if you took time off as "sick time" or "vacation time". This is because you would have lost both sick and vacation time which are valued at your normal pay for such time plus the value of any benefits which your employer provides. These benefits could include contributions to retirement plans, profit sharing plans, and similar benefits. If you are self employed and have been required to take time off from your business, the evaluation for the past earnings loss is generally the value of what you would have earned had the accident not occurred. Usually this requires looking at the business profits before and after the date of the accident. Similarly, if you are a commission sales person, an analysis of your sales or earnings before and after the accident can establish the nature of the loss.

In most states, including California, future loss of earnings is also recoverable if it is reasonably probable to occur. This is generally valued the same way as the past earnings loss, except that future lost earnings may be increased by the value of promotions and cost of living adjustments, and decreased to what is called "present dollar value". Present dollar value is the amount of money which you could safely invest in order to draw the same amount of money over time. This is similar to purchasing an annuity for future distribution of monetary benefits. This calculation is generally made by an expert economist or an accountant in order to determine the exact amount of future loss.

ARE THERE LIMITS ON RECOVERY?

There are a number of limits on recovery, both legal and practical. The most important limitation is the nature and the extent of the insurance coverage by the party at fault. If the person at fault had no insurance then any recovery would be from the person's assets or from his or her wages. Remember the old saying, " You can't get blood out of a stone." With the exception of accidents involving drunk drivers, or intentional acts, a court judgment against a negligent driver can be discharged in bankruptcy. This means that if the award is substantial it could force the person at fault into bankruptcy and the injured party would end up with no recovery. However, if the person at fault has substantial assets, then those assets could be used as a source of collection. If the person at fault has only limited insurance, then this could be a substantial barrier to a recovery in excess of the limits of the insurance.

If the party at fault at the time of the accident was working ("on the job"), then the employer will also be liable for the accident, and the insurance or the assets of the employer would be available as an additional source of recovery.

If you were not insured at the time of the accident, and the accident was someone else's fault, in California under a new law (Proposition 213), you are limited to only an award for property damage, past and future medical expenses and past and future loss earnings. If Proposition 213 is upheld by the courts, you would be excluded from any recovery for pain and suffering, unless the person who was at fault was convicted of drunk driving or driving under the influence of drugs.

Certain cases, for example, medical malpractice cases, limit the recovery for pain and suffering. In California, the limits on recovery for pain and suffering in a medical malpractice case is limited to $250,000.00. However there is no limitation on past or future medical expenses, past or future earning loss, or other similar special damages.

WHAT IF I WAS INJURED ON THE JOB?

If you were at work at the time of the accident, in most states, including California, you will be eligible for benefits under Workers Compensation Laws. You do not need to show anyone was at fault for the accident. If the accident was caused by someone other than your employer or by a defective product, you may also have a claim against this other party (or the manufacturer, distributor, or seller of the defective product).

WHAT IS THE VALUE OF MY CLAIM?

The value of your claim is a combination of the value of your property loss, car repair, reasonable and necessary past and future medical expenses, past and future lost earnings and compensation for pain and suffering. In addition, if you are married, in most states, including California, your spouse may be entitled to an award for loss of companionship and loss of value of services the injured spouse provided in the home, to the extent these losses can be shown.