ACCIDENT-RELATED INJURIES
Frequently Asked Questions
Question: How do I know if I have a claim against someone?
Answer: Unfortunately, injuries can happen to any of us at any time. Sometimes we are injured due to our own carelessness or just because we were in the wrong place at the wrong time. In a circumstance in which you may be injured without someone else "doing something wrong", there may be no legal claim to be made.
On the other hand, sometimes we are injured as the result of the negligence of others. "Negligence" is, essentially, carelessness. A person is negligent if he fails to do something that a reasonably careful person would do in the same circumstances or he does something that a reasonably careful person would not do in the same circumstances. If you have been injured due to the carelessness or negligence of another, you are entitled to be compensated for your injuries.
Question: Who decides which parties were negligent?
Answer: Until a case actually goes to trial, the parties are really just predicting whether a judge or jury might find someone to be negligent after hearing the evidence. Prior to that time, your attorney relies upon his experience and knowledge of the law to make these predictions. The parties may agree which of the parties involved in the accident were negligent and which ones were not. Other times, it may be clear as mud and the subject of much debate. If there is an agreement on who caused the accident, the claim may be well on the way toward settlement.
Question: The other driver got a ticket. Does that mean that he was negligent and I am not?
Answer: No. Police officers are often called to the scene of car accidents. They make sure that injured parties receive appropriate medical assistance, route traffic around the accident scene in a safe manner, and gather information about how the accident occurred. If the investigating officer believes that one or more of the drivers involved in a car accident violated a traffic law, he or she may issue a traffic ticket. This is simply the judgment of the investigating officer that it is probable the driver he ticketed has violated the law. This is not necessarily the same question as whether a party was negligent. But if the other party gets a ticket and you do not, it may be a good indicator of who may have been at fault.
Question: Do I have to be completely blameless in order to have a valid claim?
Answer: No. Wisconsin operates under what is known as "comparative negligence". To be successful, one making a claim against another must be able to prove that the other party was negligent and at least as much at fault as the person making the claim. For example, in a two car accident where both drivers were 50% at fault, the party making the claim will be able to recover 50% of his damages from the other driver and his insurance company.
If, on the other hand, the driver making the claim is 51% or more at fault, and the defendant driver is 49% or less at fault, the party making the claim loses and is not entitled to any recovery.
Any negligence that is apportioned to the party making the claim serves to reduce his damages by that same percentage. In other words, in a two car accident where the party making the claim is found to 25% at fault and have damages of $100,000, he will be able to recover $75,000 (75%) from the other driver who was determined to be 75% the cause of the accident.
Question: When should I contact my own car insurance company following an accident?
Answer: As soon as reasonably possible, you should contact your insurance agent to advise that you have a claim to report. You are under a contractual obligation to provide your insurance company with accurate and timely information about the accident, property damage, and any injuries that may have been sustained. Your own insurance company may send an "insurance adjuster" out to talk to you about the accident. Once again, you have a contractual obligation to cooperate with your own insurance company and should do so. Failure to do so may result in losing benefits that would have otherwise been available to you from your own insurance company.
Question: Should I talk to an insurance adjuster from the other drivers insurance company?
Answer: Most insurance companies will want to send out investigators, or "adjusters", whose job is to gather information about how the accident happened, whether their insured is responsible for causing the accident, and any injuries that might have been received in the accident. However, you are under no obligation to provide any information to the other drivers insurance company. We advise our clients not to give any written or recorded statements to the other insurance company. We advise our clients not to provide any medical authorizations or sign any documents, whatsoever, for the other drivers insurance company.
You may receive letters, phone calls, and even get a personal visit from an adjuster working for the other drivers insurance company. We advise our clients to politely tell the insurance adjuster that they do not wish to speak about the accident and ask them to refer any questions to this office for handling.
Question: The other driver was completely at fault and I have nothing to hide. What harm could there be to talking to an adjuster from the other drivers insurance company?
Answer: You must keep in mind that part of what a good adjuster does is gather information that will be helpful to his client and detrimental to your claim. If they can get you to make comments that will hurt your claim, they will try to document that information for possible use later on. We have seen written and signed statements used against our clients at trial. Sometimes the comments are taken out of context and sometimes our client simply did not understand the questions that were being asked or the significance of the answers being provided. Similarly, we have seen situations where a telephone conversation is recorded and then transcribed by an employee of the other drivers insurance company. We have seen errors in the transcription, words left out, and generally very inaccurate transcriptions of telephone conversations. Later, in court, we sometimes have to explain that the transcription is not accurate and that the written words in that statement are wrong. As you can see, it is usually better to make no comment at all than to have a comment misunderstood and have to somehow explain it.
Question: How and when do I get my car fixed?
Answer: Typically, property damage claims are resolved a short time after the accident. Sometimes the insurance company for the other driver offers little resistance and agrees to pay you for the damage. Other times, there may be issues about whose fault the accident was, what the value of the damage was, etc. In those circumstances, if you have collision insurance with your own insurance company, you can turn in your claim to your own insurance company for payment. Rest assured that if your own insurance company believes the damages were caused by the negligence of another driver, they will then negotiate with the other drivers insurance company to recover for any damages they may have paid you.
Once again, principles of comparative negligence come into play. If all parties were to agree that there was $5,000 worth of damage done to your car and that the other driver was 75% the cause of the accident and you were 25% the cause of the accident, the other drivers insurance company would pay you 75% of $5,000, or $3,750. The rest would come from your own insurance company, subject to any reduction for your deductible.
Do not hesitate to allow an insurance adjuster for your insurance company or even the other drivers insurance company to take pictures of damage done to your car. We also advise our clients to take their own pictures of vehicle damage. We also tell our clients to take too many pictures, rather than not enough.
Question: How much should I get for my damaged car?
Answer: Assuming that the other driver was entirely at fault, you have a right to either the cost of repair or the fair market value of the vehicle just before the accident, whichever is less. Essentially, you have the right to have the car repaired and put in the same condition it was in just before the accident, if it is repairable. You are not entitled to improvements, nor are you entitled to have damage unrelated to the accident repaired as a part of the claim. If the vehicle is "totaled", you will be entitled to the fair market value of the vehicle just before the accident. Being "totaled", simply means that it would cost more to repair the car than the entire car is worth. If your vehicle is totaled, the insurance company will essentially be paying you for the full value of the car and may have the right to any scrap value they can get from the vehicle. Sometimes insurance companies will negotiate a lower payout to you if you prefer to take the remains of the car as well.
Question: When should I see a doctor?
Answer: If there is even a possibility that you were injured in an accident, you should to directly to the closest emergency room to report your injuries. Sometimes people report that they were "all pumped up" at the scene of the accident and did not believe that they had been injured, but that later that day or the following morning, they felt like they had been run over by a truck. This is not uncommon. Indeed, some people do not begin to experience symptoms for days or even weeks after an accident.
Sometimes we have clients acknowledge they were injured at the scene of the accident, but fail to seek medical attention because they just figured they would get better after a few days or a few weeks. It is very difficult to make a claim for personal injuries if there has been no medical care or treatment and no doctor has had an opportunity to examine you and listen to your complaints. Insurance companies will argue "Well, you couldnt have been hurt if you didnt even have to go to the doctor."
Clearly, the safest course to follow from both a medical and legal standpoint following an accident is to seek medical care immediately if there is any question about injury.
Question: My doctor wants me to participate in physical therapy and do all kinds of exercises. I dont have time for this and it is a bother. Why should I do this?
Answer: It is extremely important that you show up on time for all doctor appointments and religiously follow your doctors orders, whether it is to remain in bed, stay off work, take medication, go to physical therapy, or do exercises. Insurance companies love to see medical records with entries that read "Patient did not show for appointment." Similarly, if you do not participate in physical therapy, do your exercises, etc., the insurance company will argue that the reason you did not improve better or faster is because you failed to follow your doctors orders.
Question: What should I tell my doctor when I see him?
Answer: Every time you see a new doctor for accident related injuries, you are likely to be asked about your symptoms and when your symptoms began. You must understand that the doctors take notes of these discussion with you and ultimately dictate their notes and they become your medical records. Be sure to clearly and accurately state when your symptoms began, describe each and every part of you that hurts, or is giving you problems, tell him or her what makes your symptoms better or worse, and clearly advise that you have been following the advice and recommendations of all of your doctors and therapists.
Question: Is it okay for me to go to a chiropractor, rather than a medical doctor?
Answer: It is our recommendation that your first stop for medical care is with a medical doctor at an emergency room. Many times, thereafter, our clients elect to seek chiropractic care, rather than medical treatment. This is completely acceptable, as the testimony of chiropractors is admissible as expert testimony in the same way that the testimony of a medical doctor would be considered expert testimony. Some people prefer medical care and others prefer chiropractic or other alternative methods of care. Ultimately, from a medical standpoint, you will want to get the kind of care and treatment that will most likely result in a quick and complete recovery. From a legal standpoint, you will want to seek care that is reasonable, necessary, and be able to show that it is related to the accident.
Question: Who will pay my medical bills?
Answer: Assuming the other driver to be at fault, his insurance company will eventually pay for the medical expenses you incur for treatment for injuries related to the accident. As a practical matter, however, they will not pay those bills until the very end when the entire claim settles. Of course, in the meantime, you may be receiving bills from doctors and hospitals and therapists for services they are providing to you for injuries resulting from the accident.
Your first option to get medical expenses paid is to simply turn them in to your normal health insurance company like you would any other medical expense. Your health insurance company will process those bills in the normal fashion and will pay for those expenses that are covered. Your health insurance company would then acquire the right to collect any expenses they have paid out back from the other drivers insurance company at the end of the case. In the meantime, however, they will have made payment and you should not be getting bills from your health care providers
Sometimes our clients do not have health insurance or there are significant deductibles or co-pay requirements. You may have a "medical payment" provision in your own automobile insurance policy. Many policies provide that if you or a passenger in your car are injured while you are in the insured car, they will pay up to a certain amount of money for medical expenses, no matter who caused the accident. We typically see "med pay" coverage in the amount of $1,000, $2,000, $5,000, or sometimes $10,000. It is simply a matter of how much insurance coverage you contracted for with your own insurance company. Once again, if your own insurance company makes payments under the med pay part of your policy, they would then acquire the right to recover those payments from the other drivers insurance company at the end of the case.
Sometimes our clients have no health insurance and have exhausted the medical payment benefits under their own policy. Still, they continue to get bills for medical care that is being provided. In such a circumstance, you may either pay for all or a portion of those bills individually as you are able, or enter into an arrangement with the health care provider in which you agree to pay for the medical expenses at the conclusion of your case. Many doctors and clinics are agreeable to defer payment of their bills until the conclusion of your case.
Question: When should I go back to my job?
Answer: If you are injured in an accident, you should return to work as soon as your doctors clear you for that activity. We prefer that our clients remain as active as possible and get back to work as soon as they are reasonably able to do so even if only on a part-time basis at the beginning. Of course, this is largely a medical issue and, once again, we recommend that you follow your doctors advice. It is important that you clearly advised your doctor of all of the physical requirements of your job prior to asking him for an opinion about when you are able to return to work.
If you do have to miss work because of accident related injuries, make sure that your employer understands the reason for your absence. It is a good idea for both you and your employer to document all of the time off, wages lost, and benefits lost as a result of your inability to work. For some people who work for a specific rate of pay for a specific number of hours per day, a calculation of lost wages is fairly simple. For others, however, who may work on commission, have flexible hours, or be self-employed, calculation of lost wages is more difficult. All you can do is document any lost income as best you can. This may include keeping track of your own hours and losses, as well as getting statements from prospective customers whose business you lost as a result of your inability to work.
Question: Are there any time limits I have to worry about?
Answer: Yes. A typical negligence claim has a three year statute of limitations. This means that you have three years from the date of the accident in which to either settle your claim or begin a lawsuit. Failure to do either of these things would result in a complete loss of your claim and you will never be compensated for your injuries at all.
There are also special statutes of limitations that might apply to specific circumstances. For example, there is different statute of limitations when minors are injured, when medical malpractice may be involved, when the legal theory may be something other than simple negligence, as well as multiple other examples. If you have a claim against a governmental body, there are strict notice requirements that must be complied with to preserve your claim. For these reasons, we always recommend that you seek legal advice and representation as soon after an accidental injury as is practicable.
Question: How can I afford to hire an attorney when I cant even pay my medical bills?
Answer: Most of our clients who have been injured as a result of negligence of others have hired this firm on a contingent fee basis. This means that the attorneys fees will be a percentage of the ultimate recovery and will be paid at the conclusion of the case. That percentage may vary from case to case, but is typically somewhere between 25% and 33_% of the recovery depending on a variety of factors. If, for some reason, there is no recovery at the conclusion of the case, you have no attorneys fees to pay this firm.
This firm may pay for a variety of different costs and expenses in processing your claims. At the conclusion of the case, you will simply reimburse the firm for its expenses out of your share of the settlement. Once again, depending upon the particulars of your case, there may be no requirement to reimburse the firm for expenses if there is no recovery.
There is always a written fee agreement that details the fee agreement in each case that we handle on a contingent fee basis.
Question: When should I hire a lawyer?
Answer: The safest thing you can do is to contact an attorney immediately after an accident. There are times when evidence will disappear or be altered as time goes on. It may be necessary to hire accident reconstruction engineers, investigators, and others to evaluate your claim. Many times it is imperative that we become involved as early as possible. Any delay may result in the loss of important evidence.
Your initial consultation with this firm will result in no expense to you. The best thing that you can do is educate yourself about your legal options and concerns as soon as possible and preserve your rights as fully as you can.
The following articles about personal injury law may also be of interest to you:
You & Your Personal Injury Claim
Answering Questions About Accident-related Injuries
At The Accident Scene, What Should I Do?
But My Insurance Adjuster Says I Don't Need A Lawyer
How Much Is My Injury Claim Worth?
Injuries To Children
Product Liability Claims
Herrick & Hart Personal Injury Attorneys, Eau Claire, Wisconsin
Please contact us for help with your legal needs or concerns.
The attorneys at Herrick & Hart provide expert advice to people who have suffered a loss or been injured. If you or someone whom you care about has been injured, please call (715-832-3491), e-mail (mike@eauclairelaw.com) to arrange a free initial consultation with the injury lawyers at Herrick & Hart, or complete the online personal injury case assessment form to have your case reviewed by the personal injury attorneys at Herrick & Hart.
The team of personal injury lawyers at Herrick & Hart represent people throughout northwest Wisconsin. They litigate against insurance companies based in Wisconsin, Illinois, Iowa, Minnesota, and across the nation, and most frequently help clients who were injured in or are residents of Eau Claire county (Eau Claire, Altoona, Augusta, Fairchild, Fall Creak, & Seymour), Chippewa county (Chippewa Falls, Cadott, Cornell, New Auburn, & Stanley), Taylor county (Medford, Gilman, & Stetsonville), Rusk county (Ladysmith, Hawkins, & Weyerhauser), Barron county (Barron, Rice Lake, & Cameron), Dunn county (Boyceville, Menomonie, Colfax, & Downing), Clark county (Abbotsford, Colby, Neilsville, & Thorp), Marathon County (Wausau, Abbotsford, Colby, Brokaw, Evergreen, Marshfield, Mosinee, Rothschild, Schofield, Spencer, Unity & Weston), Portage county (Stevens Point, Amherst, Plover, Rosholt, & Whiting), Wood county (Wisconsin Rapids, Port Edwards, Nekoosa, & Marshfield), Jackson county (Black River Falls, Taylor, Merrillan, and Alma Center), La Crosse county (La Crosse, Brice Prairie, Onalaska, Holmen, & West Salem), Monroe county (Sparta), Douglas county (Superior), Sawyer county (Hayward), Ashland county (Ashland, Odanah), Bayfield county (Bayfield, Mason, & Washburn), Juneau county (Elroy, Mauston, Necedah, Union Center), and St Croix county (Baldwin, Hudson, New Richmond, North Hudson, River Falls, Spring Valley & Wilson), Pierce county (Bay City, Ellsworth, River Falls, Spring Valley).
