Vehicle-Motorcycle-Bicycle Accidents

 Auto Accidents FAQ:

What should I do after an accident?

Here's what to do:

  1. Get as many names and as much contact information as possible

  2. Ask if the other driver was working at the time, ask about employer.

  3. Call your insurance agent as soon as possible.

  4. Take pictures of the accident scene, damage and injuries.

  5. Document everything that happens, including all your medical bills and other to expenses.

  6. Be honest and forthcoming with your insurer. Omissions and half-truths will cause problems.

  7. Review your current policy and coverage.

  8. Make a list of your other policies. They may have coverage.

 

Here's what not to do after an accident:

Remember that insurance adjusters are professionally trained to pay you pennies on the dollar. This is how the insurance company makes money.

Here’s what not to do:

  1. Don’t say things to the other party like “Don’t worry about it”, “I’m so sorry”, and “Oh, it wasn’t your fault.” You mean well, but they will be used against you and can ruin your case.

  2. Don’t give a statement without an attorney present.

  3. Don’t accept a quick settlement for injuries. You don’t know the extent of your injuries. 

  4. Don’t accept a payment marked as “final payment.” Because “final Payment” means final payment as in there will be no more payments.

  5. Don’t accept anything that seems unfair, even if it is written by a lawyer for the insurance company. They are not protecting you. They are in it to protect money.

  6.   Don’t miss the deadlines. The time frame varies by the circumstances. Even though it wasn’t your fault, you have to get things started. Insurance companies don’t take action without claims and claims don’t file themselves. If you miss a deadline, it is probably the end of your case.

As is the case for any personal-injury type situation, there is no financial downside to hiring an attorney. You pay no up-front fees, and pay nothing if your attorney does not win your case. 

How do I know if I have a case?

Call a personal injury attorney and request a consultation. In most cases these consultations will be free, and you will pay no fees unless the attorney wins your case.

You may have a case even if you do not feel hurt at the scene. A personal injury attorney will be able to tell you who you can sue based on the facts of the case and in some instances may be able to estimate (not guarantee) what you could recover.

What if an insurance adjuster calls me?

You should not speak with an insurance adjuster for someone else involved in the accident. You may tell the adjuster to contact your attorney.

How long do I have to file in California?

The statue of limitations to file for personal injury cases in California is two years from the date of the injury.

How much time would it take to get my case resolved?

 The time needed to resolve a case can vary based on primary factors including:

  • Extent of Injuries and Rehabilitation

  • Case Details 

  • Negotiation Process 

  • Litigation if Necessary 

 

Hiring an attorney early in the process can sometimes motivate the insurer to make a fair offer earlier as they are less likely to take advantage of you.

When you hire an attorney from the Law Offices of Thomas Kensok, you kick off a series of actions. We:

 

  • Communicate with the other driver’s insurer

  • Obtain organize and present the evidence necessary to prove liability and damages, including medical records.

  • Work with your doctors to make sure you are receiving proper medical care and arrange payments through liens on recovery.

  • Work to negotiate a satisfactory settlement with the insurance adjuster or defense attorney or move forward with litigation if appropriate.

 

Communicating with the Other Driver’s Insurer

One of our first steps is to contact the other driver’s insurer and provide an overview of the eventual claim. This allows the insurance company to anticipate the size of the claim and set its internal limits appropriately. It also allows us to gain information on the policy limits, which is vital information for forming our strategy. It helps you for us to maintain open and honest communication with the insurance adjusters from our side. Credibility is crucial in later negotiations.

 

Obtaining Necessary Evidence of Liability

When you hire an attorney from the Law Offices of Thomas Kensok, we dig into the details of the accident. This means speaking with you and anyone else that has information. We also check any police reports, and anything else that will help us put the facts together. Then we use this information to build your case.

Fault is determined by California law on negligence. Lawyers begin thinking about cases with the end in mind, so we look to the California Civil Jury Instructions when gathering evidence and evaluation. That way we know we are building a case that will meet legal requirements. The Judicial Council of California Civil Jury Instruction 400 requires evidence that

1. That the other person was negligent;

2. That you were harmed; and

3. That the other person’s negligence was a substantial factor in causing your harm.

 

The instructions go on to state that:

 

“Negligence is the failure to use reasonable care to prevent harm to oneself or to others.

A person can be negligent by acting or by failing to act. A person is negligent if that person does something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation.” (Judicial Council of California Civil Jury Instruction 401)

 

The jury decides how a reasonably careful person would have acted in the other person’s situation. Motor vehicle accidents are common enough that there is an instruction that deals specifically with driving.

 

“A person must use reasonable care in driving a vehicle. Drivers must keep a lookout for pedestrians, obstacles, and other vehicles. They must also control the speed and movement of their vehicles. The failure to use reasonable care in driving a vehicle is negligent”. (Judicial Council of California Civil Jury Instruction 700)

 

We gather all the evidence needed to prove what actually happened in the accident. We have our own investigators with decades of experience that know where to look and who to talk to. This means we get all the pictures and reports available so the facts are clear. Our investigators will:

  • Obtain the police report from the police investigation of the accident.

  • Speak with witnesses and gather testimony from them

  • Use the help of expert testimony and accident reconstruction specialists if necessary.

Obtaining Necessary Evidence of Damages

Damages are the harms you suffered as a result of the accident. The dollar valuation of the damages determines the recovery.

 

Damages include physical injuries, medical bills, property damage, lost wages and emotional well-being, among other things. Without the assistance of a knowledgeable personal injury attorney, coming up with a fair amount would be difficult to determine.

As with gathering evidence of negligence liability, a good lawyer will look into each of these subjects.  Again, the subject is controlled by the jury instructions.

The damages claimed for the harm caused by the other party “fall into two categories called economic damages and noneconomic damages.” (Judicial Council Of California Civil Jury Instruction 3902)

 

Damages for past medical expenses are determined by proof of the reasonable cost of reasonably necessary medical care that you have received and fall into the economic damages category. The same is true of future medical expenses. (Judicial Council Of California Civil Jury Instruction 3903A)

 

Damages for past lost earnings require proof of the amount lost to date. Future lost earnings need proof that the amount will be reasonably certain to lose in the future as a result of the injury. (Judicial Council Of California Civil Jury Instruction 3903C)

 

Non-economic damages are typically referred to as pain and suffering. Pain and suffering are not two separate things in California law. Instead, the two words go together to describe the concept and have “… served as a convenient label under which a plaintiff may recover not only for physical pain but for fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror or ordeal.” (Capelouto v. Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 892–893, internal citations and footnote omitted; see Judicial Council Of California Civil Jury Instruction 3905A.)

 

It is critical that you are checked by medical personnel after an auto accident. Internal injuries may not show symptoms immediately following the incident. Some common injuries include:

  • Soft tissue injuries this includes to tendons, ligaments, or muscles. 

  • Cuts, scrapes and bruises

  • Neck and back injuries, including spinal injuries

  • Broken bones

  • Head and brain injuries including concussion (traumatic brain injuries).

  • Burns

 

We work with your medical providers and form a team. Their job is to give you the necessary care for your injuries and our job is to make sure you get the right care and are able to pay for it. This means we not only gather and review your treatment records, we interpret them so that everyone fully understands the full extent of your injuries. We have health professionals on our staff in order to bridge that gap. In fact, many of our referrals actually come from health professionals.

Gathering medical records can be complicated. Each provider has a different system for providing your medical records. Failure to follow their system causes delays. Kaiser, for instance, is different from Sutter and Sutter is different from the county hospital, which is different from the community hospital. Your individual doctor’s records may not be included in hospital records and have to be obtained separately. You get the picture.

 

Personal injury claims must be proved through medical evidence. Once we obtain the records, we review them to make sure they contain the information we need to present your claim.

Because their job is to treat the injuries, doctors often omit causation and extent of the injury or disability in their medical records. We ask the doctor to give an opinion regarding:

  • exactly what your injury, disability, or physical limitation is, and

  • that it was caused by the defendant’s negligence.

 

Negotiating the Settlement

We will work to negotiate a settlement on your behalf with the insurance companies. In reaching a reasonable settlement, policy limits matter: insurance will only pay up to the driver’s policy limits. Because of this, we evaluate the at-fault driver’s assets to ensure adequate compensation to cover expenses not covered by insurance. We also look at your own uninsured or underinsured driver insurance. That might be the key to your claim.

Negotiation is a skill that takes experience and strategy. Insurance adjusters do it all day long, every day. You need someone to match that. We use an algorithm similar to that used by the insurance companies to get an idea of where they are setting their valuations. Then we work to get to the upper limit. 

If we can’t reach a settlement, we go to court. Usually this doesn’t happen because we know the correct data points to emphasize to get the best settlement possible. If necessary, we are prepared to file a lawsuit for your claim. If the insurance company knows you are unwilling to go to court, they have no incentive to give a reasonable settlement.

Negotiating with Lien Holders

If you received benefits from a health, disability, or workers’ compensation insurer, that insurer will have a lien on your claim. Their liens entitle them to get paid before you can be compensated for your pain and suffering, or put aside money for future medical costs. However, we work with them to get you a reasonable recovery. While we sometimes have to negotiate with your healthcare provider, we always try to be fair with them. Our relationships with healthcare providers are very important to us and we know they are they have provided you the best care possible.

 

Dealing with your own insurance company

Finally, you may need to deal with your own insurance company. You probably don’t need an attorney in a low speed collision, with slight or no injuries. However, if the medical bills are over $3000, or if you had to miss a week of work, it is worthwhile to speak with a lawyer.

Insurance companies are “for-profit” entities and make money collecting premiums, not paying claims. Thus, they pay as little as possible. They might:

  • Attempt to confuse or misrepresent your policy coverage amount and pretend they don’t have to pay medical bills.

  • Claim that you are not hurt or that the accident did not cause the injury. This can include spying on you, monitoring your social media accounts, and scouring your old medical records.

  • Coming back and saying you have to pay them back because of “subrogation” rights.

  • Impose false deadlines and undercount medical bills or argue some bills came in too late to be included.

  • Insist on a recorded statement from you. Recorded statements are not for your benefit and you may be subjected to questions designed to limit or deny your claim. They will not tell you that you have a right to consult with or hire a lawyer.

  • Try for a quick settlement that does not cover your needs because they know you will not take your case to trial.

  • Asset you did it on purpose and deny your claim.

 

Because of these things, you should hire a lawyer if:

  • You are confused by the paperwork and forms.

  • Your insurance company says you are not covered or didn’t pay your premium.

  • Your insurance company says you have to pay them back.

  • Your insurance company is acting strange and suggesting you were not hurt or did something on purpose.

  • Your insurance company gets a lawyer.

  • Another party involved in the accident hires a lawyer.

  • Not sure of your rights

Image by Michael Jin