TRYK LAW FRESNO PROVIDES ANSWERS TO QUESTIONS FREQUENTLY ASKED BY OUR CURRENT & PAST CLIENTS
1. Under what circumstances can I recover damages as a result of an accident in California? (FAQ-1)
To recover damages as a result of an accident in California you must have suffered an injury to your person or property as the result of someone else's negligence. In other words, the person or company who caused the harm must be at fault for your accident. In product liability cases, it may be the defendant is strictly liable for your injuries. Strictly liable means in general terms that there is no dispute over liability.
2. If I was injured in an accident that was not my fault, how are my damages calculated? (Q-2)
Damages in a California personal injury case consist of three primary categories: medical bills, lost wages, and pain and suffering (almost always the largest component). In cases where the victim’s injury is such that he/she must be retrained for a new job, the costs associated with the retraining are also recoverable. This money is intended to restore your loss and is not taxable.
3. What do you mean by Personal Injury? What type of cases does this include? (FAQ-3)
"Personal injury" is a broad term that means any kind of accident that leads to bodily injury. Tryk Law is a California Personal Injury Law Firm. Our firm consists of clients that are victims and have suffered injuries in an auto accident, truck accident, motorcycle accident, product defect, premises liability, animal or dog attack or construction site accidents. By exclusively dealing with these specific types of personal injury cases, we understand the nuances of the laws governing personal injury and related insurance coverage in addition to many other issues in California that may arise. Accordingly, this focus, reputation and expertise allows us to put our clients in the best position to achieve fair compensation for their injuries.
4. What is Uninsured/Underinsured Motorist Coverage UM/UIM and do I have it? (FAQ-4)
In California, Uninsured/Underinsured Motorist Coverage UM/UIM applies in Two General Situations: (1) Uninsured: the at-fault driver has no liability insurance; (2) Underinsured: where the at-fault driver has insufficient liability insurance limits (at-fault driver's policy limits are lower than the limits of your uninsured motorist coverage). Essentially uninsured/underinsured motorist coverage is insurance coverage that covers your accident just as your liability insurance provides compensation for the people that you might injure through careless driving. This coverage typically extends to family members who live with you and anyone who is injured in your vehicle. Under the California Insurance Code, a policyholder may waive UM/UIM coverage in the policy only if he/she executes a written waiver of that coverage. So if you did not expressly waive it, the law states that you hold UM/UIM coverage in the same amount as your liability coverage on your auto policy.
5. What if I am hit by a driver who flees the scene of the accident? (FAQ-5)
In California, if you suffer personal injuries as the result of the negligence of a hit-and-run driver, you may still recover for your lost wages, medical bills, and pain and suffering as if you knew the identity of the driver by bringing a claim under your own insurance policy's uninsured motorist provision. Essentially, the law treats that phantom vehicle as an uninsured driver. If you the unfortunate victim of a hit and run, always file a police report with the local law enforcement agency. Fresno Police Department has a desk specifically for this purpose, so it makes sense that the report is called a “Desk Report”.
California requires actual contact with the phantom vehicle in order for a Plaintiff to bring a personal injury claim. As an aside, in addition to the above, punitive damages are not recoverable in UM/UIM cases if you are the victim or a hit and run or collision caused by a drunk dr ver that was uninsured at the time of the collision.
6. Will I have to go to court? (FAQ-6)
If there is no settlement offer, obviously our lawyers are taking your case to trial. In most cases, the choice is yours
because there is a settlement offer on the table. Because our accident lawyers carefully screen personal injury cases and because our attorneys have a reputation with insurance companies for getting excellent recoveries for our clients, the vast majority of our clients receive reasonable offers to settle before trial. However, because of the many factors involved, it is impossible to predict whether your particular case is one that will be settled or one which must be decided by a jury.
7. How much of my time will this take? (FAQ-7)
Surprisingly, your personal injury claim will not require a great deal of your time, unless it goes all the way to trial. After the initial interview, our staff will do almost all of the work for you. Your problems become our problems. Your job is to recover the best that you can from your injuries from the accident if you have not yet fully recovered. Your time commitment obviously changes if yours is in the minority of our personal injury cases that goes to trial. The final trial preparation process will require more of a time commitment if your injuries are substantial.
8. How long do I have to bring a case? (FAQ-8)
You must file your case within the statute of limitations, a fixed period of time dictated by the law. In many injury cases in California, you are required to bring your case within Two (2) Years from the date of the accident.
Important – If your claim is against a governmental entity, you must file a “Governmental Claim” within Six Months (180 days) of the incident or you can lose your right to proceed against that entity in Court.
For an explanation of these time limits, always consult with a lawyer experienced in these matters. Some limitations periods are shorter than 2 years. Statutes of Limitations may be extended in certain situations in California personal injury cases, such as when an injured person is under the age of 18. These are only the basics for statutes of limitations relating to California Personal Injury matters. If your case does not involve a personal injury matter, you should contact an attorney in the field of law that applies to your case to get the correct timeframe to file your case in court. Note-If you do not file in time, you lose your right to pursue your claim and all that goes with it.
9. How is a decision made regarding whether to accept a settlement or go to trial? (FAQ-9)
You will meet with our personal injury lawyers to discuss together what would be best for you and your family. Our attorneys' job is not to make the decision for you, but to evaluate the offer we have been able to obtain and provide the information to you, based on our attorneys' experience handling personal injury cases in California, to help you make the best decision for you.
10. How does the insurance company decide how much to make its initial offer? (FAQ-10)
Typically, most insurance companies we deal with in California use computer software to determine the value of auto, truck and other accident injury cases. The most prolific is one used by a number of companies called Colossus, designed by Computer Sciences Corp., a California based company that values accident cases for insurance companies. Colossus is reportedly used by more than 50 percent of the nation's claims insurance adjusters. Many other insurance companies use a similar program.
Essentially, the insurance company does is it inputs the data it receives from your medical records, lost wages, the severity of the accident, and where the accident occurred. The computer will give a higher value for a case in some venues that others based on past jury verdict trends than it would, for example, for the same case in Fresno or the Central Valley since our jurors are typically of the conservative nature. It also inputs the taxpayer ID number of your personal injury lawyer which determines if your accident lawyer has a history of taking cases to verdict in California or whether they simply settle all of their cases. Colossus then specifically looks to your injuries as described in your medical records. One of the most important questions is whether the injuries are permanent. Colossus also gives higher values for objective injuries measured by diagnostic testing than soft tissue injuries. It does give, however, values for muscle spasm (for which Colossus gives particular weight in cases without a defined objective injury), restriction on movement, radiating pain, anxiety, depression, headaches, dizziness, and visual disturbance. Colossus also gives higher value to cases where the patient went to the hospital for initial treatment of the injuries. Our firm is extremely familiar with this software.
Colossus then generates a range of settlement values for that case. The problem with Colossus is the same problem we have in society with all computerized systems: they do not grasp the complexity of human beings. There is no computer program that can ascertain the value of a person's pain and suffering, how an injury really impacted a person's life. How much is it worth to not be able to pick up your newborn baby without extreme pain? There is no way a computer can answer this question.
This is why your personal injury attorney must adequately articulate why your injuries are different or alternatively be prepared to file a lawsuit. When your accident lawyer files a lawsuit, sometimes the insurance companies do take a second look at a case and give a second look to the real trial value of the case, particularly when they know that the accident lawyers handling the case are willing to go to trial.
11. Will I hurt the person I am suing by bringing a personal injury claim? (FAQ-11)
This question is often asked by our personal injury clients who deserve compensation for their injuries but are afraid that they will do harm to the person who caused their injuries. Virtually all personal injury claims are handled by insurance company lawyers and paid by insurance, so the person (or company) will not have to pay any money out of their own pocket in most cases. A few exceptions to this general rule is when one of our clients is seriously injured by a drunk or impaired driver or has been the victim or an assault and battery. In this event punitive damages may be sought and enforced.
12. Do I still have a claim if my medical bills were paid by insurance? (FAQ-12)
Under the Collateral Source Rule in California, you are entitled to be compensated for your medical bills regardless of whether or not they have been paid by MEDPAY or by your health insurance. The same logic holds true for lost wages. If you miss work, you can collect your lost wages even if your company pays you for the missed time. Usually, the larger part of your personal injury claim is compensation for your Pain and Suffering (General Damages). However, if you are a Medi-Cal or Medicare recipient, you may only be entitled to recover the amount of your medical bills that these two entities actually paid your medical provider(s) in full satisfaction of the original bill. This should not change your pain and suffering although many insurance adjusters will make this argument since one method of calculating your pain and suffering involves treating it in proportion to your medical bills.
13. How long will it take for me to receive a financial recovery in my case? (FAQ-13)
While we would love to be able to give you a definitive answer, there is no definite period of time in which a personal injury case will settle or go to trial. Every case has its own unique facts. What we can promise you is this: we will move your case forward towards settlement or verdict at trial in a manner that avoids unnecessary delays.
If a case settles, in most (but not all) cases we need to wait until the patient has finished receiving medical care and treatment (or reached a point of maximum medical improvement). We then order any remaining medical bills and underlying records from your health care providers. Then we prepare and submit a demand package to the insurance company, letting them know how much you are willing to accept to resolve your claim. We expect a response to our demand letter from the insurance companies. We usually receive an offer in a reasonable time period; if not we recommend filing a lawsuit. Our firm takes great care to diligently pursue your case with vigor and eliminate unnecessary delays in resolving your personal injury case. Your case is our case and we will fight for you to get the highest possible recovery as quickly as possible. Accordingly, we do everything we can do to move your case forward.
14. What is Assumption of the Risk? (FAQ-14)
In California, if you have knowingly and voluntarily assumed the risk inherent in a particular action or inaction that causes an accident, this can be used as a defense to reduce the value of your case or have it thrown out of court on a pre-trial motion called a Motion for Summary Judgment. For example, if you get in a friend’s car for a drag race and suffer personal injuries in an accident, you assumed the risk of those injuries. Defense lawyers in California love to raise the assumption of the risk defense in personal injury cases. But, as a practical matter, the assumption of the risk defense is applicable in very few personal injury cases in California that are not recreational sports accident cases.
15. What is Comparative Fault or Comparative Negligence? (FAQ-15)
In California, a Plaintiff may sometimes also be partially at-fault or liable for an accident. For example, if someone is the victim of a motor vehicle collision and sustained injuries but was not wearing their seatbelt at the time of the collision. If a portion of the injuries sustained by the Plaintiff could have been prevented if she was wearing her seatbelt, a jury will be asked to place a percentage on the comparative fault of the Plaintiff. When this occurs, the verdict or settlement will be reduced by the Plaintiff's percentage of fault.
16. What is a herniated disc? (FAQ-16)
Spinal discs are round cushions that lie in between the vertebrae of the spinal column. These discs basically act like shock absorbers between the vertebrae, cushioning them when we contort our bodies in everyday life. These discs have an external shell and a liquid substance in the middle. The metaphor we often use with juries in personal injury cases is that the discs are like jelly donuts. If a disc is injured as the result of the trauma of an auto accident, the "jelly" may leak out of the disc. If the inner core of the disc extrudes back into the spinal canal it may impact a nerve root. The weak spot in a disc is directly under the nerve root and a herniated disc can put great pressure on the nerve, which can cause pain to radiate throughout the person's body.
Where the pain radiates to in the body depends on where the disc herniation occurs. When a patient has a symptomatic herniated disc, the pain is not in the disc area; rather, the disc herniation is pinching a nerve in the spine that causes 'radicular' pain. This radicular pain is typically described as a pain that shoots through the body, usually to one area in particular, since each nerve in the spine is connected to a particular area of the body. This pain can be nerve root pain, leg pain if the herniation is in the lumbar (back), or arm pain from a cervical (neck) herniated disc. A herniated disc is rarely diagnosed in the emergency room after an auto accident.
This is because the disc is invisible on an x-ray. Accordingly, a patient typically needs a Computed tomography (CT Scan) or Magnetic Resonance Imaging (MRI) test so that a physician can diagnose up a disc herniation. A Discography, Myelography, or an Electromyography are also used to diagnose herniated discs. It is worth noting that the experts agree that these diagnostic tests cannot diagnose the injury victim's pain. There is no clear cut correlation between the severity of the herniation and the patient pain symptoms because there are so many other variables involved.
17. What is a herniated disc case worth by settlement or at trial? (FAQ-17)
Some herniated disc injuries leave a patient in constant pain for the rest of their lives. These patients try traction, steroid injections, therapy and eventually surgery and still find themselves in pain that will last a lifetime. Assuming (1) no question as to responsibility for the auto accident; (2) no preexisting injury or pre-accident degenerative disease; and (3) reasonable insurance coverage for the at-fault driver, the settlement value of these types of herniated disc cases are almost invariably six figure and sometimes even seven figure cases. One important factor to note when assessing the value of a herniated disc case, the insurance money to recover must be there in order to recover full value of the injury. That is why we are constantly discussing Uninsured and Underinsured Motorist Coverage within this site and on our blog.
The more complicated cases involve preexisting injuries. A favorite tactic of lawyers defending personal injury cases on behalf of the insurance companies involving herniated discs is pointing the finger at preexisting degenerative problems with a patient's spine, such as Spinal Stenosis, Osteoarthritis, and Spondylolisthesis. Most of these are conditions that begin in many people in their early 30s. Therefore, it must be established that the patient's problems are not due to the degenerative condition, but to the trauma sustained in the accident.
All of this begs the question of what happens when a person has a preexisting herniated disc or some type of degenerative changes and was asymptomatic (without symptoms) before the accident. There are two California jury instructions on point: Judicial Council of California – Civil Jury Instruction - 3927 Aggravation of Preexisting Condition or Disability and Judicial Council of California – Civil Jury Instruction 3928 - Unusually Susceptible Plaintiff. If you have either one of these issues, you and your attorney must be able to clearly articulate the difference between your problems and treatment before the auto accident and your current condition. If there is no difference in your condition after the accident, your chances of a substantial recovery diminish dramatically. On the other hand, if there is a notable difference in your way of life after the accident that would not have occurred in the absence of the auto accident, your chance of a quality settlement increases dramatically. Select here to visit our herniated disc information page.
18. What are “soft tissue injuries"? (FAQ-18)
A “Soft Tissue Injury” (STI) is the damage of muscles, ligaments and tendons throughout the body. Common soft tissue injuries usually occur from a sprain, strain, a one off blow resulting in a contusion or overuse of a particular part of the body. Soft tissue injuries can result in pain, swelling, bruising and loss of function. If severe pain persists after the first 24 hours it is recommended that an individual consults with a professional who can provide a medical diagnosis and implement a treatment plan so the patient can return to everyday activities as soon as possible. Often times the best and most experienced doctors that treat "Soft Tissue Injuries" are Doctors of Chiropractic (D.C.). These are doctors that most commonly deal with accident victims and accordingly they are familiar with the injuries sustained and provide hands on and active treatment to aid in the recovery of accident related injuries.
19. How do most insurance companies handle Soft Tissue Injury Claims? (FAQ-19)
Most insurance companies (I say most because some remain decent) do not give Soft Tissue Injuries (STI) view Soft Tissue Injury cases as risky to challenge or even credible for that matter. Soft Tissue Claims are assigned to newer insurance adjusters out of the gate and that adjuster is given limited authority (money) to settle the claim. In order to get more authority, the assigned adjuster is required to request it from their claims supervisor. The supervising adjusters typically do not like it when junior adjusters come into their office to ask for additional authority on a claim that is not viewed with urgency or seriousness in their eyes.
Now you may be asking at this point, is this his opinion? How am I qualified to discuss this? I know this because I have been to several claims offices throughout the Country during my years as an Insurance Defense Attorney. I regularly lectured to various insurance companies on new topics or issues. I regularly lectured about the mechanics of new laws and how to legally and effectively apply them to the claims process. During my tenure as an Insurance Defense Attorney, I was also asked too many times to count to sit in on adjuster roundtable meetings. These are when a list of claims with urgent issues are discussed by about 5-10 Insurance Adjusters, Supervising Adjusters and Insurance Defense Attorneys, at times. The issues that I am discussing are based on firsthand knowledge of strategy and tactical claims handling procedure.
During my years as an Insurance Defense Attorney, I had the opportunity to meet and speak to many adjusters on a variety of social and professional levels. To be fair, I can say that there are many decent insurance adjusters out there that will try to be fair to the extent they are allowed by their employer.
For the most part, insurance companies see soft tissue injury claimants as opportunistic people with a tendency to exaggerate. When there is a soft tissue injury coupled with what may appear to be a low impact collision, the claims are often assigned to the insurance company's SIU (Special Investigations Unit). While it may sound scary and intimidating, SUI simply is a more proficient and aggressive unit when it comes to gathering information about the accident and the parties involved.
In 2007, there was an extremely informative story conducted by CNN entitled AUTO INSURERS PLAY HARDBALL IN MINOR CRASH CLAIMS, authored by Drew Griffin and Kathleen Johnson. Click Here
for Article & Video of this Story.
20. How much is my case worth? (FAQ-20) (Click here for further information on Personal Injury Case Valuation)
Predicting the trial value of any California Personal Injury case is almost impossible. There are many factors that can affect the value of a case. Your attorney can only give you a very general idea of the value of your case based on cases we have handled with similar injuries and will not be able to predict the specific amount you will receive. That said, our lawyers generally are able to give our clients a settlement range that they can reasonably expect after our lawyers have reviewed the client's personal injury case.
With respect to the value of your personal injury case if taken to trial by our firm, the results are even more difficult to predict. That value of your case is that value placed on it by 12 California Jurors in State Court and 6 Jurors in Federal Court. They decide together how much money to award you for your injuries. Accordingly, the value ranges for the exact same injury with similar facts vary widely depending upon who those jurors are. Jurors bring with them, just as all of us do, their own personal biases that can either help or hurt you. If you are like many of us, you still want some data, something to give you some idea of what juries are awarding in personal injury cases in California. In 2007 - certainly a while ago but this is the data we have and we don't think things have changed much - a company that analyzes jury verdicts in personal injury cases did a study that found that the nationwide median jury award in a personal injury case was $38,461 and the nationwide plaintiff recovery probability was 55 percent. The percentage relating to probability of recovery has dropped over the years due to many factors but now it is believed to be closer to 46 percent. The average jury award in California car accident personal injury cases was $11,277. The most likely explanation for this is that the insurance companies have targeted certain types of cases to take to trial based on the percentage of likelihood based on past case results that a defense verdict will be the result.
What does this data mean for your case? Virtually nothing. If this data is discouraging to you regarding the value of your personal injury case, you might be comforted that Benjamin P. Tryk, prior to forming Tryk Law previously worked for dozens of insurance companies. During his tenure as a partner for a large statewide insurance defense firm, Ben was exposed to how insurance companies evaluate a liability position, how they calculate potential settlement value, how they calculate risk in addition to defense tactics and many other nuances that may benefit you and your case whether it settles or proceeds to trial. A good well-prepared California Personal Injury Lawyer (and there are many good injury attorneys in California) that meticulously prepare a case and present it honestly and fairly to a jury typically get much better jury awards than those who do not.
You need to discuss with your lawyers the specific facts of your personal injury case, the pros and cons, and come to a conclusion about the fair value of your case and the goal you hope to achieve in addition to a worst case scenario. This will include a discussion of the severity of your injuries, the amount of available insurance, how clear the connection is between your injuries and the accident, how strong your liability case is, the quality of the witnesses, and the expected jury perceptions of you and the defendant (remember, the jury is not told there is insurance covering the claim). This discussion will also include analysis of the venue where the case is being tried. In California, as we mentioned earlier, Fresno and the Central Valley in general are considered extremely conservative venues (which means our jury pool is hesitant to award damages unless the case merits such an award). This is true across the country -- juries typically award more money in urban areas than they do in rural areas. Click here for further information on personal injury case valuation.
21. Why is it important to have experienced lawyers handling your Soft Tissue or Whiplash Case? (FAQ-21)
Our firm handles several Whiplash Injury cases and we know many people, family, friends, former and current clients that have been effected by significant Whiplash Injuries. Soft Tissue or Whiplash Injuries may also be the beginning of injuries that are much more serious than you would expect. This happens to an extent that is far more common than most people realize.
Medical science is beginning to realize this. A new study in the Journal “Brain Injury”, which is a peer reviewed monthly publication on issues relating to the brain, highlights the frequency with which brain injury can occur in whiplash injury car accident cases. The study looked at 1,200 MRIs in neck pain patients and found that those patients suffering from whiplash were more likely to have anatomical changes to the brain called Chiari Malformation. In whiplash car injury victims, the bottom part of the brain dipped through an opening in the base of the skull after a whiplash injury, causing a brain injury in 23% of the whiplash cases studied. This translates to a lot more brain injuries from whiplash car accidents than even accident lawyers who are aggressively taking whiplash injury cases ever imagined. So few patients ever get a brain MRI that would uncover a Chiari Malformation.
There are also serious neck injuries that linger after whiplash accidents for reasons we just don't yet understand. For all that medical science has accomplished, doctors still don't understand enough about these injuries to the spine to understand exactly why some people have prolonged and permanent injuries from even relatively low-speed car accidents. In these type of case, we take every case with the assumption that it will go to trial given the stance that insurance companies take regarding these cases. One factor that really can make or break this type of case is whether our client is what type of client we have. Essentially, what we are looking for in these cases to take to trial is an “exceptional and likeable plaintiff”.
There are two additional elements that can also make your whiplash case much stronger: (1) a permanent injury after a whiplash injury accident, and (2) a very compelling story with an extremely strong and credible victim.
If you have sustained serious injury as the result of a whiplash accident in Fresno or surroundign areas, you are in particular need of a good, experienced car accident lawyer that can help you present a meaningful claim for settlement or, if necessary, at trial. If you have suffered a soft tissue whiplash injury in a car or truck auto accident call Tryk Law - Accident Injury Attorneys of Fresno to get a free no obligation consultation, call us at (559) 840-3240