Bill Connor

Bill Connor

         Another car blew a red light and ran into your car passing through an intersection on green. The police have investigated and issued an accident report holding the other driver at fault, and an ambulance took you to the Emergency Room of the local hospital. You know insurance will cover your vehicle, but realize the injuries involved will required a personal injury claim.  The first question will likely be the expected result of bringing a personal injury claim with or without trial.  Though the next step would likely be visiting an attorney, it's important to personally understand the factors involved with the value of a personal injury claim due to the effect on family and personal finances.
        One of the first things to understand in valuing a personal injury claim is that the level of liability for the other side effects the claim.  In the case described above, the liability the opposing side would likely assign to the other driver is 100%.  Therefore, whatever number a jury were to determining damages would be fully against that driver.  Other cases can involve situations in which the person bringing the claim has some level of liability.  In South Carolina, as long as the other driver is at least 50% at fault they can be sued for that percent of damages.  If the other side is less than 50% at fault (the plaintiff cannot be more than 50% at fault) they could not be sued in South Carolina.  
        A factor in evaluating the claim is the venue (county) the suit could be brought.  Counties have historic trends in jury verdicts and in some jury verdicts would be expected to be higher, while in other the verdicts are traditionally much lower.  Whether that appears fair or not, trials are in front of citizens from the county and their decision stands. The case can either be brought in the defendant's home county or where the accident occurred.  It's important to speak to your attorney about venue.
       As a general rule, many insurance companies will develop their personal injury damages primarily based on the medical bills from the ambulance, ER, and other medical doctor and specialist related bills.  They will also consider the other medical bills, like chiropractic bills, but normally put the most weight on the hospital/doctor bills.  If the bills solely involve an ambulance to the ER and ER evaluation and treatment (and release without inpatient treatment) with soft tissue injury, the "expected" settlement can range at 2-3 times those medical bills.  Therefore, if the total bill is $5,000.00, the settlement value can sometimes be expected in the range of $10-15,000.00.  This varies greatly based on venue, and other nuances of the case.  
       Understand that the valuation is based on the total medical bills, and not what was paid by medical insurance or co-pays by patients. In the event of a settlement, a medical insurer will likely have some kind of "lien" on the settlement. Normally, this is far below what the insurer paid on the bill, which was far less than the bill.  Therefore, for a bill of a few thousand dollars, an insurer might have a lien of a few hundred.  Either way, the other money is to cover pain and suffering and other such damages.
      In addition to those valuations of damages, other damages are considered as well.  For example, lost wages due to the accident should be calculated and sent to the insurance company.  The settlement will consider these on a 1 for 1 basis, and not the 2-3 times amounts like with the medicals.  Additionally, when injuries involve more serious injuries like broken bones or worse, the valuations can go well beyond the 2-3 times the medicals.  Additionally, the medicals are expected to go into future treatment and problems.
     In cases of serious injury, the biggest restriction on valuation can be the insurance limits available to cover damages.  In South Carolina, minimum insurance limits are only $25K per incident or $50K overall.  That's for the other driver.  Most drivers also have underinsured motorist (UIM) coverage on their policy which helps cover the excess medical damages.  Those limits are based on the kind of policy you have, and why to consider higher policies.  Also, lawyers can explain ways to "stack" UIM coverage of multiple vehicles on the policy to cover damages.  
       Every case is unique, and your attorney will give far more detail about the nuances of the case.  There is also the factor of settlements when the other side is still reasonably contesting liability and therefore not willing to settle at expected amounts.  You always have the right to take the case to courts and juries, but always understand the pros and cons of that process.

       You are stopped in traffic, and suddenly your world is turned upside when a vehicle hits you from behind.  You saw the car coming for a split second in your rear-view mirror just before impact and adrenaline is racing through your body as the impact take place and everything is jolted and damaged.  After the accident, you still have the adrenaline racing through your body and your mind exhibits confusion as to what happened.  This is a critical time for a number of reasons, and something that must have been thought through with a plan of action before it happens for real.  In terms of legal protection and security, the actions taken shortly after an accident are critical and can have lifetime effects. 

       The first thing to remember after an accident, whether a rear-end collision or another type of high impact collision, is that the adrenaline rush that takes place in the moments before, during and after the accident can hide injuries and cause some confusion.  I have been rear-ended, and have also been in a combat situation in which adrenaline flooded my system.  It is a normal human reaction when life is threatened and the "fight or flight" response kicks in.  Crucially, the adrenaline can hide the pain of serious injury for hours or days.  That's why it's important to always be cautious in moving after an accident and always getting medical checks after an accident.  You may not feel the pain of serious injury, but it can exist and the pain will set in sometime later.

      In terms of legal protection (legal protection in both defending a lawsuit and the ability to seek legal redress for damages associated with an accident), getting medical checks immediately after the accident is critical and can make or break a future lawsuit.  Attempting to "tough it out" and wait possibly days before receiving medical checks can kill the ability to bring a suit.  The longer the gap between the accident and medical care, the harder it can be to prove the injury is associated with the accident.  A day or more of a gap leaves the potential for the claim of an intermediate accident as the cause of the injuries.  Additionally, the type of injuries found immediately after the accident can help prove the liability, particularly in the later attempts to reconstruct the accident.

      The next thing to consider is quickly noting and obtaining evidence to help prove the liability is with the other driver.  Even while quickly seeking medical attention, it's important to try to note any potential witnesses.  It's also important to note and seek to obtain potential video evidence (for example, school buses normally have cameras facing the back of the bus and can sometimes allow a camera recording of an accident behind the bus.  Officers now wear body cams, and this is important to note for evidence.  Lastly, statements which can be construed as an admission of liability by the other driver are an exception to the hearsay rule and can be testified by anyone who hears the driver make the admission. 

     Lastly, it's important not to make any admissions at the scene of the accident or any statements which can be construed as an admission.  Those types of statements can be testified about by others who heard the statement as party admissions are an exception to hearsay rules.  The problem can be that a party is confused from the adrenaline and doesn't realize he is not at fault and makes a statement construed as an admission.  That can be enough evidence for the other side to win a suit, even when actually liable. 

      It's important to speak with the law enforcement officer drafting the accident report, but understand that report cannot come in as evidence unless the officer is a certified accident reconstructionist and testifying as an expert.  That would be extremely rare.  Unless the officer is a witness to the accident, he would not be able to testify at trial to anything beyond what he actually saw and without opinion.  It is still important to speak to the officer and provide detail, as the report can be used by insurance companies to determine settlement.

      The key is to think about what must be done after an accident before an accident takes place.  Hopefully, it will never happen, but if it does you will already have much information most do not. When the initial medical treatment is complete, I would recommend looking for an attorney you trust to get on top of the case.  He will be quite happy if you have followed my above advice, then it's time to follow his advice.  

Sola fide,

         The term "personal injury" can have different meanings depending on the context.  In the context of lawsuits, personal injury means those damages which an injured party or parties will bring against the party who caused the injury.  Within damages in a lawsuit, it is distinguished from property damage which may have occurred during the same incident or accident.  Closely connected to personal injury, and brought as damages with personal injury, are personal damages like lost wages.  The first question someone should ask when they are injured by the seeming negligence of another is: Should I bring a lawsuit and what should I reasonably expect from the lawsuit?

        In determining whether or not to take the steps toward bringing a lawsuit, which would normally begin with a demand letter and attempt to settle before filing, is the reasonable chance of winning in court.  You must be able to show the negligence of the offending party or parties (Note:  I have written a separate article about negligence which explains the elements you must prove).  Regardless of the truth about what occurred during the accident or incident, what matters most is the evidence which could go before a jury.  Did the other side make an admission?  How many and how credible are witnesses?  What does the physical evidence show?  All these factors must be analyzed to ensure the case has the potential for winning in front of a jury (Note:  I have also written about the importance of venue, where you can seek venue, and factors about venue which plan in the decision).

      After determining the reasonable chance of success, the next evaluation is the reasonable amount to be expected in settlement and/or jury verdict.  In some cases, the monetary damages expected may be so low it is not worth it to pay the costs associated with bringing suit.  With personal injury, the first analysis is on the total medical bills associated with the injury.  If EMS and emergency evaluation/treatment is involved, the bill for those medical services is likely to be over $3,000.00.  Those are usually the most uncontested bills, as seeking treatment in the Emergency Room is normally considered reasonable regardless of the accident.  In determining the potential jury verdict, the actual bill from the hospital is what must be considered as the damages.  Not what was paid by the insurance company or patient co-pays.  Your insurance company may have paid only a fraction of the bill, but that insurance information will not go before a jury.  Only the medical bills.

      Further treatment recommended by the ER, like seeing a primary care provider, is normally accepted as reasonable.  Unusual treatment, like chiropractic treatment in some circumstances, can be questioned.  Treatment which evidence/records proves connected to a pre-existing injury can be contested.  This is an issue in which expert testimony may be required in bringing suit, but worth it is the liability appears clear and the damages are substantial.  Beyond straight medical bills, pain and suffering, and future partial or permanent disability are more subjective damages, but damages the jury will be expected to consider in the overall verdict.  Lost wages, loss of future earning capabilities, loss of enjoyment of certain things due to the injury are also damages connected with personal injury the jury would consider.

      Different venues offer different average jury verdicts, so studying the venue and prior verdicts is important to evaluating the value of the case.  As a rule of thumb in many venues, assuming no substantial future damages and/or substantial injuries like broken bones, the total damage award can be expected at 2-3 times the overall medical bill.  The reason it goes well beyond the medical bills is compensation for pain and suffering associated with the injury.  The amount can be substantially more if the injury is significant and involves futures.  Again, each venue is different, so it's important to study the venue and consider all medical damages and future issues.  In some cases, psychological injury comes into play due to the nature of the injury.  Additionally, spouses can claim damages for "loss of consortium" due to the accident.  These are damages the spouse suffers due to what has happened to their loved one. Note:  Loss of consortium goes beyond the sexual into all the things spouses do for each other.

      It is always best to seek legal representation (note:  I have written about contingency fee agreement for those bringing lawsuits), and best to get your lawyer to provide detailed analysis.  However, with these basics of information, you will be in the position to better understand whether to sue and what to expect.

        For many, being hurt on the job is something unexpected.  With all the various safety requirements, it seems as though it just couldn't happen.  Most expect the possibility of being hurt in a vehicle accident of something similar, and know the basics of what to do in the event of that type of injury.  However, being hurt on the job is something unique, and the normal legal remedies available are unique and must be understood before the injury (Note:  though states have similar laws for workers compensation, I write this article as an attorney licensed in South Carolina, and by SC law).

        First, in most work situations the employer will have workers compensation insurance. In fact if the employer has four or more employees he is legally required to have workers compensation benefits for employee.  Under workers compensation law, an injured worker (for an injury sustained on the job) with workers compensation benefits is required to seek workers compensation benefits against his employer regardless of the fault of the employer in causing the injury.  

        Workers compensation is a "no fault" insurance program.  This means it does not matter whether or not the employer is liable for the injury, he is required to take care of the medical needs of the worker associated with the injury.  Workers compensation benefits include medical compensation benefits and temporary partial disability payments while the worker is unable to work.  When the respective worker is brought to "maximum medical improvement", workers compensation provides a lump sum amount to compensate for future medical issues and problem.  In the event the employer did not have workers compensation, in violation of state law, the worker will still receive benefits through a state fund, and the state will go after the employer for recoupment.

        In some cases, the worker may have further recourse beyond workers compensation for injuries sustained on the job.  If another party or corporation, beyond the employer providing workers compensation is responsible for the injury, the worker can sue the other party after resolving the workers compensation.  For example if an employee is injured partly due to equipment malfunction of another corporation providing equipment for the employer causes injury the employee can sue the equipment provider after workers compensation benefits.

         Another legally related issue with being injured on the job can be discrimination and/or termination due to the injury.  Being injured usually puts the employee under the protections of the Americans with Disabilities Act protections.  This generally requires reasonable accommodations for those with disabilities, which include disabilities due to injury.  It also prohibits discrimination due to disability, including disability due to injury.  If an employer were to fire an employee due to the injury, the employer could be found to have violated the ADA.  In that event, the employer could face substantial monetary penalties to the employee.  Employers should be very careful about taking any kind of action against employees who are injured and must allow for reasonable treatment and rights under the Family Medical Leave Act.
       Finding an attorney to assist after a job related injury is beyond wise.  The attorney can help navigate not only the nuances of workers compensation, but understand the fine points of bringing a separate lawsuit against other parties. In the event of workplace discrimination due to an injury, the attorney will know the lines the employer has crossed in violation of Federal and/or State law.  

      Though an on the job injury can be tough, having a plan to handle it makes all the difference in the world.

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