Personal Injury Case in Fresno, CA
HOW A PERSONAL INJURY CASE WORKS
There are not many resources out there for people who are involved in car accidents. Most car accident lawyer websites are set up for marketing, i.e., "call us to handle your case
." Free consultations
, more often than not, are short, impersonal, and sometimes just a sales pitch to get victims to sign the retainer agreement and go home. Make no mistake about it, we want our fair share of cases, but we don’t engage in a high pressure sign and leave situation. We won’t ever try to scare you into hiring us as there are situations where you may not need us to handle your case.
So, from the luxury of your home computer and without any high-pressure sales, here is some information about the process of dealing with a California Car Accident Claim. Also included is the average time it takes to get from point A to point B. Please note that not every case is the same, and all situations and insurance companies vary somewhat. That said, these are good generalities.
IF YOU WOULD LIKE TO ASK MORE SPECIFIC QUESTIONS, CALL US AT (559) 840-3240
Depending on the severity of the car accident, there are some things that you may be able to do to help your case. Here’s a short list:
- Make sure that you are in a safe place and there is no risk of secondary collisions.
- If you are in pain, avoid moving unless absolutely necessary.
- Call the police and ambulance.
- Take photographs: Take photographs of your car, the car that hit you, the driver of the car that hit you, any witnesses, and the license plates of cars with drivers or passengers who may have witnessed the collision.
- Get the other driver’s information: Get the other driver’s name, address, phone number, insurance company and insurance policy number. Ask to see his or her driver’s license information, and write down the license number, date of birth, height and weight and the address, if different from what he/she told you.
- Get contact information for witnesses: Some people don’t like to stick around after an accident, especially if they think other people are taking care of the situation. In some cases, though, independent witness testimony can be crucial to proving your claim. Try to get as much contact information from witnesses as possible
- Call a lawyer: It’s a good idea to get a consultation with a lawyer fairly quickly, if only so you know what the deadlines are. In California, there are deadlines to file lawsuits and notice requirements. In some situations, you may have to give formal, written and technical notice to a governmental entity (this is called a notice of claim) after the accident. Sometimes it is hard to know if a local government or other notice-requiring entity was involved in your accident, so you should contact a lawyer to check.
THE FREE LAWYER CONSULTATION
If you think you need an accident lawyer, and you want to talk to one, the most important rule is that you should not have to pay for the consultation. Most personal injury lawyers offer free informational meetings, but we are always a little surprised when we hear of a lawyer who doesn’t. The reality is, there are plenty of good, top-notch lawyers who won’t charge you. Honestly, if someone wants to charge you to meet in a personal injury case, it is generally unlikely, at least in our opinion, that lawyer is a seasoned personal injury lawyer who handles significant accident cases if they are trying to make a buck off you in a consultation.
We offer free consultations that are convenient to you—you can meet us in our office, call us over the phone, or sometimes we can even arrange to meet with you at a different location. You should always bring the following items with you, if you have them.
Photos: of the scene, the cars, the drivers, witnesses, your injuries (if visible) or anything else important to the case. If you have them in digital form, on your phone, flash drive or SD Card, this is ideal as we can copy them directly to your potential case file.
Contact Information: of everyone who was involved or witnessed the accident.
Insurance Policy Information: Your declarations page and the information of the other driver in the accident. If you cannot find your declarations page, call your agent and they will send you one immediately. You can usually have them fax it directly to our office at 888-528-5570 (FAX).
- Recent paystubs if you missed time from work.
- Medical records, bills related to the accident and discharge paperwork from any and all medical providers, if you have these items.
- Estimates, invoices or bills for property damage (for example, the car, damaged articles of clothing, etc…)
- Your health insurance information.
- Copy of the police report, if you have it. If not, the police report number and reporting agency.
- Bring a list of all doctors or health care providers you have seen because of the accident.
This information will help your lawyers to jump right into your accident case. If you don’t have everything, don’t worry. Just collect what you can, but don’t go to a lot of extra trouble. For example, if you don’t have a police report, your lawyer will order it. That’s what you are hiring a lawyer for—to take care of the details.
At the initial consultation, the lawyer will ask you questions about how the accident happened, what medical treatment you received, what your injuries are, whether and to what extent your car was damaged, your insurance coverage, the other drivers’ insurance coverage, and other questions. If we like your case, we think we can help you and you are prepared to hire us, we can sign the paperwork following the consultation.
Contingency Fee Retainer Agreement: This is the document that our firm uses. We do not take cases on an hourly basis, so there is no money to pay up front. In a contingency fee case, our firm’s fees are based on a percentage of the total settlement or verdict. If the case resolves before a lawsuit is filed, the fee is thirty-three and one-third percent (33-1/3%). If it resolves after the filing of a lawsuit, our fee is forty percent (40%). This is our fee agreement in every single case. Expenses are paid out the client’s recovery only if there is a recovery. Our firm accepts all of the risks of a case, so if there is no recovery, you do not pay anything.
ISO Claim Indexing Form: There are some companies that keep track of insurance claims made by everyone. The insurance companies use this to determine if accident victims had prior accidents that may have caused injuries that they are now complaining of. For example, if you were in an automobile accident in 1996 and hurt your back, the insurance companies might say that your back pain from the 2012 collision is related to the prior accident. Sometimes the information in these databases is wrong, and we order it so that we know what the insurance companies know.
Medicare/Medicaid Disclosure Form: If you receive Medicare or Medicaid (medical assistance), and if either of those entities paid money for medical care because of your car accident, they may be entitled to be paid back. This form allows us to talk with them to see what their demands are. For more on Medicare, see our prior blog post on dealing with Medicare liens.
HIPAA Authorization: This will allow us to collect your relevant medical records and to talk with your doctors about your injuries and case.
Opening Medi-Cal Claim: If you are a Medi-Cal recipient and a portion of your medical bills were paid by Medi-Cal, we will open a claim with their office in Sacramento so that we can obtain their final lien amount ASAP. This must be done prior to settlement of your claim and the process takes a while at times, so we open it immediately upon retention.
Designation of Attorney: This is the last form you will sign, which designates us to act as your attorneys and make all contact with all persons and entities on your behalf.
THE LIABILITY INVESTIGATION
In many cases, a lawyer will be able to make a decision on liability after you tell him what happened. Liability is basically “who was at fault.” For example, if your car was hit from behind, or if someone pulled out in front of you, it is very likely that the other driver was at fault. In other cases, where the cars collided in a sideswipe collision, for example, it may be difficult to prove who was at fault. This is why witness information is so important. If the lawyer decides that there is a good chance that the other driver was negligent, you will sign forms and he or she should begin immediately. Here are some of the things that your lawyer will investigate to prove the liability component of your California automobile accident case:
Police Report: if there was a police report, the lawyer will order it (unless you bring it with you). The police report has important information, including (1) where the accident happened; (2) the identity of the other drivers involved in the accident and their insurance information; (3) a description of what the officer believes happened; and (4) most importantly, a list of the names and contact information of any witnesses that the police officer identified.
Witnesses: The lawyer will then contact all witnesses listed in the police report, and all witnesses that you know about. Especially in accident cases that might be close calls, these witnesses can help to prove your claim.
Cameras: Video footage can come from a variety of sources—traffic cameras, red light cameras, even cameras attached to nearby buildings sometimes pick up road activity. Your lawyer may seek out and attempt to preserve this type of evidence.
911 Calls: If a 911 call was made, the lawyer might need to obtain a copy of the recording. This may be the case where the 911 call was made by an unknown person (who might be a witness), or where the time of the accident may be important.
Legal Research: There are a number of things your lawyer may need to research with regard to your case, particularly if there are uncommon legal issues that may arise. The lawyer will of course determine whether there are any deadlines, and what those deadlines might be. But the lawyer may need to look at the rules of the road that apply to the location of the accident, and the rules for drivers (for example, if the negligent driver was a commercial truck operator, there are very specific rules of conduct).
The liability investigation phase does not usually take long. Usually is the operative word. In some cases - particularly truck accident cases - the investigation can take months.
The ball usually gets rolling with the police report, which are in many California counties are available instantaneously online. Some counties still require that they be ordered by mail, however, which can take one to two weeks. If 911 tapes or camera footage is necessary, those might take longer to obtain. Speaking to witnesses of course depends on their responsiveness. The liability investigation may be renewed if new information comes in at any later point in the case. We have an in-house investigator formerly a Fresno County Sheriff’s Felony Investigator that handles complex investigation.
HANDLING THE INSURANCE COMPANIES
At the same time as the liability investigation, we will work with the insurance companies. This is one of the best reasons to hire a lawyer—so the insurance companies will stop bothering you (we find that some insurance companies are overly aggressive, and some are very unresponsive). When you walk out of your accident lawyer’s office, he or she should immediately send letters of representation to the insurance companies so that they know you are represented. Here are the two typical types of insurance companies:
Your insurance company will sometimes provide the following benefits that we will work out for you:
MEDPAY Coverage: They will open a claim and begin to pay your medical expenses immediately. The expenses covered must be for treatment that is deemed reasonable, necessary and accident related.
Car Rental: If the negligent driver’s insurance company does not admit fault, or is still investigating the case, you may need to get a rental car while your car is out of commission (whether it is being fixed, or whether you will need to buy a new one). If you have rental insurance, your insurance company may pay for it. Most insurance policies that have rental coverage allow for a maximum of 30 days’ rental.
Collision: Again, if the negligent driver’s insurance company does not admit fault, or is still investigating the case, you may need to go through your insurance policy to use collision coverage (if your policy has it). Under a collision policy, your insurance company will pay to repair or replace (up to the fair market value) your car. You may have to pay a deductible, which is usually $250 or $500.
Uninsured/Underinsured Motorist Coverage (UM/UIM): In some cases, where the other driver either has no insurance, or has insurance that is too low to pay for all of your damages, your insurance company may step in to pay for the full claims or a portion of the claims. In this situation, your insurance company may become your legal enemy, and may fight you over whether and how much they must pay. Your lawyer will determine when and if you need to make a claim under these insurance policies.
Repayment: If your insurance company pays for your rental car, car repair or car replacement, it may be entitled to be paid back. It will be reimbursed by the at-fault driver’s insurance company at a later date when the at-fault driver’s insurance company admits liability (in which case you will be reimbursed for any deductibles that you paid). If the other side does not admit fault, the insurance companies will usually engage in a form of arbitration. If your insurance company wins the arbitration, they will pay you back any deductibles that you paid.
AT-FAULT DRIVER'S INSURANCE COMPANY
The other driver’s insurance company will either admit liability for the purposes of settlement, or will deny liability. If they deny liability, there is little choice but to file a lawsuit. If there are compelling facts, it may be worth your time for your lawyer to try to convince them with a demand letter, but this is not usually the case. If they accept liability, here is what they will take care of:
Car Rental: The negligent driver’s insurance company will pay for your reasonable use of a rental car during the time that your vehicle is being repaired, or for a reasonable amount of time for you to find a new vehicle if your car was totaled in the collision. A “reasonable time” depends on the adjuster—it is usually no more than a week from the time they send payment. We always recommend that our clients use a rental vehicle for the shortest possible amount of time, because there is a risk that the insurance company will not pay costs beyond their deadlines.
Property Damage: The negligent driver’s insurance company will also pay the lesser of the (1) repair cost of your vehicle; or (2) the fair market value of your vehicle. Your lawyer will help to negotiate the final number if the car was totaled. The insurance company will also take care of any other property damage that you can prove to their satisfaction—for example, broken glasses, clothing that had to be cut away by emergency medical personnel, and destroyed personal property.
Dealing with the insurance companies for most of these can take anywhere from a couple of days to weeks, on average. In extreme cases it can last longer.
Personal injury attorneys must collect all information on your damages in order to prove your claim. Your attorney cannot complete his or her investigation of your damages until you are done treating with doctors and other health care providers.
Medical Records: When you finish with each provider, your attorney will order all of the relevant medical records, including ambulance records, if necessary. Your attorney may also order medical records from prior accidents or injuries, and records from later accidents or injuries, depending on the issues in your case.
Medical Bills: Along with medical records, your lawyer will need to obtain all of your medical bills, even if they were paid by MEDPAY, your health insurance, Medicare/Medicaid or Medi-Cal.
Lien Information: If your bills were paid by Medicare or Medicaid, and sometimes if your bills were paid by private health insurance, your lawyer may have to get an itemized lien statement from that provider. Those providers are sometimes entitled to be paid back when they pay for care related to an accidental injury. Your attorney will check the lien statement, and negotiate whether all items are properly included. Later, your attorney may negotiate the final amount of lien repayment. In some cases, attorneys can get significant reductions.
Lost Wages: Either you or your attorney will obtain a signed statement from your supervisor detailing the amount of time you missed from work, as well as your hourly wage. This is important, even if you used vacation time or sick time, because you are still entitled to the value of that lost time.
Permanent Injury: If you are not completely better after the accident, but your doctors say you are at maximum medical improvement, it may be that you have some degree of permanent or long-term disability. Your lawyer will communicate with your doctors and may request that they provide a disability rating to be used in settlement negotiations or trial.
Ordering medical records and bills typically takes a few weeks after the treatment ends. Lien information can be more difficult to obtain—health insurance providers usually aren’t bad, but Medicare and Medi-Cal can be terrible to work with. Sometimes the process takes months, but we speed it up as much as possible. The system is slow enough. Your car accident lawyers need to be a part of the solution, not a part of the problem of getting your case resolved as quickly as possible.
NEGOTIATION OF YOUR INJURY CASE
Once the damages information is all collected, a demand package will be written and sent to the insurance carrier (unless they have denied liability, in which case we usually just file a lawsuit). The demand package contains all damages information and a letter summarizing the contents.
After the demand package goes out, we usually give the insurance company 30 days to evaluate it and respond. The trick here is keeping the insurance adjuster’s attention—most of them are overworked, and once it gets to the demand point, it can be hard to get them to respond to a demand letter unless you have a good working relationship with the adjuster. We’ve been doing this for a long time, so we work with many of the same adjusters time after time.
The time spent negotiating a case is limited by our determination of whether there is any substantial progress. If the insurance company clearly evaluates the value of the claim differently than our firm, we will file a lawsuit instead of wasting time. If they seem to be negotiating in good faith, we’ll give them a chance to do the right thing. The entire negotiation process typically lasts for two to three months after the demand letter is sent out. Importantly, there will be no settlement unless you, the client, approves.
If the case does not resolve by negotiation, a lawsuit must be filed. Your lawyer should have a proven track record of success in the courtroom—be very wary of the auto accident lawyer who tells you he was most recently in court a year ago. Good lawyers try cases regularly, and refuse to accept inadequate settlement offers. The specific facts of the case will help the lawyers to determine what court to file it in. Usually, there are two choices:
SUPERIOR COURT - LIMITED JURISDICTION
Superior Court cases can be tried by a Judge or a Jury. Limited Jurisdiction are cases that are valued at $25,000.00 and below. In Limited Jurisdiction, special limitations to discovery apply and for strategic purposes, we may choose this route. If it turns out later that your case was undervalued, we will file a motion to re-classify the case in Unlimited Jurisdiction.
SUPERIOR COURT - UNLIMITED JURISDICTION
These are cases that are valued in excess of $25,000.00 and there is no limit to what can be awarded. These cases can be tried as a bench trial or jury trial. Most Unlimited Cases, when filed, get a Case Management Conference Assignment 3-4 months out at which time a trial date is assigned. When the case is filed, the plaintiff’s lawyer must deliver the court papers to the negligent driver. Sometimes the addresses are incorrect, or the driver evades service, which can delay things. Once the papers are delivered, the driver will usually provide them to the insurance company, who will hire a lawyer and must provide an "Answer" to the lawsuit within 30 days of service of the Complaint and Summons.
This is basically the claims process in a nutshell up to the filing and service of a lawsuit. In the next section, we describe more in detail what actually occurs while a case is in litigation and goes to trial.
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