Immediately after a car accident case, you are concentrating on recovering or taking care of a loved one’s final affairs. You are not thinking about recovering damages from the at-fault driver. However, it would be best if you considered taking legal action as soon as possible.
Car accident cases have a statute of limitations, which means you only have so much time to take action. A case could settle in a few months, upwards of a year, or it could go to court. However, most cases settle out of court, especially those where the accident victim does not have catastrophic injuries.
Settlement or Litigation
Sometimes, the defendant refuses a fair and reasonable settlement right up until you file a lawsuit. Even then, some do not settle until right before the trial. The defendant will almost always settle because going to trial is expensive—and if the insurance company loses, it has to pay its own attorneys and yours, too.
Settling takes much less money than preparing for and going to trial. If an insurance company believes it is correct, it will opt to go to trial, but that does not mean it will win.
Accident injuries vary based on circumstances, including the size of the vehicles, vehicle speed, and how the other vehicle hits you. Some injuries, such as traumatic brain injuries, could cause long-term or permanent disabilities.
The defendant or their insurance company might argue that you will recover from these types of injuries or that your injuries are not as bad as you claim. You must continue seeing your doctors and not miss any appointments, even if you think you feel better or believe it’s a waste of time because doctors said you would never fully recover. As long as you continue seeing your medical professionals, it is harder for the defendant to make those types of allegations.
Car accident injuries include:
- Bumps, bruises, scratches, scrapes, and cuts
- Strains and sprains
- Pulled and torn muscles and other soft tissue injuries
- Internal injuries
- Face and eye injuries
- Simple and compound fractures
- Traumatic brain injuries
- Chemical and thermal burns
- Road rash
- Head, neck, and shoulder injuries
- Back and spinal cord injuries
- Amputation of a digit or limb
- Wrongful death
You could also suffer secondary injuries, such as an infection of an open wound. Even if the wound is a secondary injury from surgery to repair an accident injury, you could recover damages to cover medical expenses and pain and suffering from the infection.
Additionally, you could also have additional suffering because accident injuries exacerbate an existing illness or injury. You could also recover compensation for any treatment or pain and suffering you would not have had if the car accident hadn’t happened.
Recovering Damages After a Car Accident
After a car accident, you can recover damages in a settlement or a trial. Many car accidents settle rather than go to trial. Some settle after filing a lawsuit. Some may even settle days before the trial, depending on the insurance company. You can recover compensatory damages in the form of economic or non-economic damages.
Sometimes referred to as special damages, economic damages have a monetary value.
Most accident victims recover economic damages, which include:
- Medical expenses such as doctor’s appointments; surgeries; follow-up appointments; cognitive therapy; physical therapy; occupational therapy; psychological therapy; upgrades to your vehicle, including wheelchair ramps and lifts and hand controls; updates to your home, such as wheelchair ramps, handrails, widened doorways, and grab bars; prescriptions; and ambulatory aids.
- Lost income.
- Loss of future earning capacity, even if you go back to work. If your injuries do not allow you to work full time or force you to take a job that pays less than your old job, you could recover a loss of partial earning capacity. If doctors do not expect you to recover fully, you could collect compensation for loss of earning capacity until you would normally retire.
- Compensation to repair or replace damaged or destroyed property.
- Death-related expenses include funeral and burial expenses, cremation expenses, certain probate court costs, and probate attorney’s fees and costs.
Sometimes referred to as general damages, non-economic damages do not have a monetary value.
In many cases, you must have lost a loved one or suffered long-term or permanent disabilities from accident injuries to recover non-economic damages, which include:
- Pain and suffering, including emotional distress.
- Loss of quality of life if you have to make life-long changes, such as using ambulatory aids or taking prescriptions.
- Loss of consortium if you can no longer enjoy a physical relationship with your spouse.
- Loss of companionship if you can no longer take part in or enjoy family activities and events.
- Loss of use of a body part such as an arm or foot.
- Loss of use of a bodily function such as your eyesight or bladder.
- Inconvenience if you have to hire someone to do the chores you usually do, including but not limited to house cleaning, grocery shopping, cooking, lawn maintenance, and home maintenance and repair.
- Amputation of a digit or limb.
- Excessive scarring or disfigurement.
In most cases, you will only recover non-economic damages if you lose a loved one or if doctors expect your accident injuries to cause long-term or permanent disabilities. While each insurance company has its own definition of “long-term or permanent disabilities,” The Social Security Administration defines these as disabilities that last more than 12 months or result in death.
In some cases, you could recover punitive damages. However, because the court only orders punitive damages as a punishment for the defendant’s actions or inactions, you can only recover this type of compensation if you can prove the defendant committed grossly negligent actions or inactions.
Punitive damages are difficult to recover, but in certain cases, well worth the extra time it takes to go through a bifurcated (two-part) trial. You will have the same judge and jury. During the second part, the court or jury determines whether the defendant’s actions or inactions are grossly negligent.
Working With Insurance Companies
Some people believe working with insurance companies will save them money. There is nothing further from the truth in most cases. Insurance companies are in business to make money. Thus, they will do anything they can to deny a claim.
Barring that, they will offer you just enough to “make you go away.” Their settlement offer might not even cover your medical expenses—and you most likely have the right to recover other damages, including but not limited to pain and suffering.
In fact, you should always refer insurance companies to your attorney and give them very limited information, including your name, contact information, date and location of the accident, and your attorney’s contact information.
Insurance companies use several tricks to convince you that your claim is invalid or to offer you a pittance. One trick they use is to twist what you say to put the blame for the accident at your feet.
Another trick they use is to convince you that they can only pay a certain amount—which is often not true. It will agree that its client is at fault but will tell you that it can only pay a few thousand dollars or some other unfair and unreasonable amount.
Whether you decide to enter settlement negotiations or litigate your case, you must be able to prove the defendant was negligent. A car accident lawyer who knows the laws can help you prove negligence.
To prove negligence, you need a lawyer who knows how to show:
- That the defendant owed you a duty of care to drive responsibly and keep others on the road safe.
- The defendant breached that duty of care.
- You suffered injuries directly from the defendant’s breach of their duty of care.
- You suffered damages due to your injuries.
If you wish to recover punitive damages, proving negligence is not enough. You must take it a step further and prove that the defendant’s actions or inactions were grossly negligent. An example of gross negligence might be speeding through a street crowded with people who are attending a street festival.
Steps After Winning a Settlement
Once you win a settlement, your case still has several steps it must go through before you receive your settlement check.
Drafting the Settlement Agreement
One of the attorneys must draft the settlement agreement. This is often the defense attorney since the defendant usually pays attorney’s fees and costs. Once the defense attorney drafts the settlement agreement, they forward it to your attorney, who then reviews it before forwarding it to you. If neither you nor your attorney desires changes, you sign and notarize the agreement. Your attorney forwards it back to the defense attorney to process.
If you have changes, your attorney will discuss the changes with the defense attorney. If both agree on the changes, the defense attorney makes the changes and forwards the new settlement agreement for review and signature.
Once the defense attorney processes the agreement, they forward a check for the agreed-upon amount to your attorney.
In addition to signing the agreement, you might have to sign other documents, including a liability release for the insurance company.
Processing the Settlement Check
Once your attorney receives the check, they will deposit it into an escrow account. Your personal injury attorney must wait until the check clears the bank before taking the next step. The check could take up to 14 days to clear, depending on the amount.
Once the check clears, your attorney will pay any outstanding medical expenses you might have. He then reimburses your auto and health insurance companies if you use them to cover accident-related medical expenses. The amount you receive includes the amount you and your insurance companies have spent on your medical expenses—neither you nor your insurance company should have to come out of pocket for these expenses.
Once the attorney pays all of your medical bills, he deducts his fees and any costs you incurred, including depositions, filing fees, subpoenas, and other “hard” costs the attorney fronted you during the pendency of your case.
Finally, the attorney can cut you a check. Once you receive the check, you can deposit it and use it as you please.
If you suffered injuries or lost a loved one in a car accident, contact a car accident lawyer for a free case evaluation as soon as possible.