Legal FAQ Table of Contents

Personal Injury Claims: When You Can Handle Your Own

Injury insurance claims don't have to involve lawyers -- it's often smart to handle your own claim after an accident.

With basic accident claims process knowledge, a bit of organization, and a little patience, you may be able to handle your own personal injury claim without a lawyer -- and without your insurance company's unfairly denying or reducing your compensation. If so, you can wind up with considerably more compensation for your injury because you won't have to pay costly lawyers' fees.

Types of claims you can often handle on your own include those involving:

• automobile, cycle, or pedestrian accidents
• slip or trip and fall accidents
• home accidents, and
• accidents with defective products.

Of course, there are times when a lawyer's services can be helpful or even necessary, especially in situations involving severe or permanently disabling injuries and certain types of complicated accidents, such as those involving medical malpractice or toxic exposure.

Due to the following four reasons, in many cases you can represent yourself.

The Claims Process Is Simple

Despite what the insurance industry and some lawyers would like you to think, settling an injury claim with an insurance company is usually quite simple. Most claims involve no more than a few short letters and phone calls with an insurance adjuster who has no legal training, so you don't need to know technical language or complex legal rules. In fact, your right to be compensated often depends on nothing more than commonsense observations about who was careful and who wasn't, and how serious your injuries are.

The Compensation System Is Structured

The amount of fair compensation in any given case does not come out of a crystal ball that only lawyers and insurance companies know how to read. Rather, a number of simple factors -- type of accident, injuries, medical costs -- go into figuring how much any claim is worth. The amount an insurance company will be willing to pay usually falls into a fairly narrow range, whether or not a lawyer handles your claim for you.

You Know Your Claim Best

You know better than anyone else -- insurance adjuster or attorney -- how your accident happened. You were there; they weren't. And you know best what injuries you suffered and what your physical condition and other circumstances have been since. Usually, these are the most important things to understand when settling an injury claim.

You Can Save Money on Legal Fees

Except in serious or complicated cases, a lawyer is usually able to negotiate for you only an extra 10% to 25% above what you can obtain for yourself, once you understand the claims process. But a lawyer will take 33% to 40% of your recovery as a fee, and in addition charge you for "costs" -- charges for administrative services such as making copies and holding conference calls, plus any fees associated with a lawsuit, which lawyers sometimes begin sooner than necessary. Subtract the lawyer's fees and costs from the extra amount of the settlement a lawyer might get, and you'll see how much better you can do on your own.

Personal Injury Claims: When You Need a Lawyer

For certain personal injury claims -- such as those for severe injuries, malpractice, or toxic exposure -- you'll want to consult a lawyer.

Sometimes, the skills of an experienced personal injury lawyer -- or at least the threat to an insurance company that such a lawyer may present -- are worth the money you must pay that lawyer to represent you. You may need a lawyer because of complex legal rules involved in your particular claim, or because the severity of your injuries might cause your compensation to vary greatly from the norm -- or simply because an insurance company refuses to settle a matter in good faith. The following types of injuries and accidents almost certainly require a lawyer's help.

Long-Term or Permanently Disabling Injuries

Some accidents result in injuries that significantly affect your physical capabilities or appearance for a long time -- over a year -- or even permanently. Figuring out how much such a serious injury is worth can be a difficult business. You'll probably require some assistance from an experienced lawyer to get the most out of your claim.

Severe Injuries

The amount of your accident compensation is mostly determined by how severe your injuries were. And the severity of your injuries is measured by the amount of your medical bills, the type of injuries you have, and the length of time it takes for you to recover. As the amount of your potential compensation increases, the range within which that compensation may fall becomes wider. In such cases, it may be worth the expense to have a lawyer handle your claim and make sure you receive compensation at the highest end of the range.

Medical Malpractice

If you have suffered an injury or illness due to careless, unprofessional, or incompetent treatment at the hands of a doctor, nurse, hospital, clinic, laboratory, or other medical provider, both the medical questions and the legal rules involved are complex. They almost certainly require that you hire a lawyer experienced in medical malpractice cases.

Toxic Exposure

In the increasingly chemical world, we sometimes become ill because of exposure to contaminants in the air, soil, or water, in products, or in food. Claims based on such exposure are difficult to prove, however, and often require complex scientific data. And because the chemical and other industries have erected a huge wall to protect themselves from legal exposure while they continue to expose us to potentially harmful chemicals, the required evidence is very hard to come by. Get expert help.

When an Insurance Company Refuses to Pay

In some instances, regardless of the nature of your injury or the amount of your medical bills and lost income, you will want to hire a lawyer because an insurance company or government agency simply refuses to make any fair settlement offer at all. In these cases, something -- what the lawyer can get minus the fee charged to get it -- is better than nothing.

Finding a Good Personal Injury Lawyer

One good way to find a lawyer is to ask friends, acquaintances, or other lawyers for referrals -- and then interview the candidates. In addition, Nolo provides a personalized lawyer directory with information about each lawyer's experience, education, and fees, and perhaps most importantly, the lawyer's general philosophy of practicing law. By using Nolo's directory you can narrow down candidates before calling them for a phone or face-to-face interview.

Take Notes After an Accident or Injury

Writing down the details after an accident is more accurate than relying on your memory.

One of the first things you should do after you are injured is write down everything you can about your accident, including details of your injuries and their effect on your daily life. These notes can be very useful two or six or ten months later, when you put together all the important facts into a final demand for compensation. Having notes to remind you of the details of what happened, and what you went through, is both easier and more reliable than counting on your memory.

Get into the habit of taking notes on anything you think might possibly affect your claim and carry it through the entire claims process. Whenever you remember something you had not thought of before -- while you're in the shower, just before you fall asleep, as you're biting into a pastry -- write it down and put it with your other notes. Here are some specific things about which you should make notes.

The Accident

As soon as your head is clear enough, jot down everything you can remember about how the accident happened, beginning with what you were doing and where you were going, the people you were with, the time and weather. Include every detail of what you saw and heard and felt -- twists, blows, and shocks to your body immediately before, during, and right after the accident. Also include anything you remember hearing anyone -- a person involved in the accident or a witness -- say about the accident.

Your Injuries

In the first days following your accident, make daily notes of all pains and discomfort your injuries cause. You may suffer pain, discomfort, anxiety, loss of sleep, or other problems which are not as visible or serious as another injury but for which you should demand additional compensation. If you don't make specific note of them immediately, you may not remember exactly what to include in your demand for settlement weeks or months later. Also, taking notes will make it easier for you later to describe to an insurance company how much and what kind of pain and discomfort you were in.

In addition, writing down your different injuries may help your doctor diagnose you. For example, a relatively small bump on the head or snap of the neck may not seem worth mentioning, but it might help both the doctor and the insurance company understand why a bad back pain developed several weeks after the accident. Also, by telling the doctor or other medical provider about all of your injuries, those injuries become part of your medical records that will provide evidence later that such injuries were caused by the accident.

Economic or Other Losses

You may be entitled to compensation for economic loss and for family, social, educational, or other losses, as well as for pain and suffering. But you will need good documentation. Begin making notes immediately after the accident about anything you have lost because of the accident and your injuries: work hours, job opportunities, meetings, classes, events, family or social gatherings, vacation, or anything else which would have benefited you or which you would have enjoyed but were unable to do because of the accident.

Conversations

Make written notes of the date, time, people involved, and content of every conversation you have about your accident or your claim. In-person or telephone conversations worth noting may include those with any witness, adjuster, or other insurance representative, or with medical personnel.

Bike Accidents: What to Do After the Crash

If you are on a bicycle and get into an accident with a car or truck, what you do at the accident scene and immediately after is crucial.

When bikes get into accidents with cars, it’s scary. (Fortunately, most bicycle accidents do not involve cars.) If you are the one riding the bike, it’s important to keep your wits about you after the crash. What you do in the immediate aftermath of the accident may have a big impact on how much you recover for your injuries and damage to your bike. It may also affect the outcome of any lawsuits resulting from the accident.

Here’s what to do.

Wait for the Police to Arrive

It is vital that you wait for police to arrive at the accident scene so that they can take and file a police report -- even if you think you are not injured. Some cyclists don’t realize they’ve been injured until several hours after the accident. And sometimes seemingly minor injuries later develop into serious and permanent problems. If you leave the accident scene, you may never be able to identify the at-fault driver.

Don’t attempt to negotiate with the driver. Many drivers initially apologize and accept blame, only to later deny their negligence or even deny they were present at the accident. Instead, wait for the police to come so they can document everything in the police report. Another advantage of waiting for the police: They may ticket the driver, which may be useful in settling the case with the insurance company.

Get Your Version of Events into the Accident Report

Sometimes, the police officer will take a statement from the motorist and not bother to talk to the cyclist. Do everything you can to get your side of the story into the police report. And by all means, report all of your injuries, no matter how minor. Remember, those minor injuries may later become more serious.

If, despite your efforts, the police refuse to include your statement in the accident report, you can later have the report amended.

Obtain Driver and Witness Contact Information

If possible, get the name of the automobile driver, as well as his or her address, phone number, driver’s license number, vehicle license number, and insurance information. In addition, try to get names and contact information for everyone who witnessed the accident. Don’t assume the police report will include all of this information -- it might not. If you are injured and cannot get this information yourself, ask a bystander to do it for you.

Document What Happened

If you can, make mental notes about the accident: what happened; how it happened; where it occurred; when it occurred; and road, traffic, and weather conditions. Then, as soon as you are able, write all this information down.

Document Your Injuries

Seek immediate medical attention for your injuries, even if they are minor. The fact that you sought medical attention will serve as proof that you were injured, and medical records will document the extent of those injuries. Have several photos taken of your injuries as soon as possible after the accident. Start a journal of your physical symptoms and make entries every few days.

Preserve Evidence

Leave your bike and other damaged property in the same state as after the accident -- don’t attempt to fix anything or have anything inspected. Don’t wash your clothing. And don’t send your bike, helmet, or any other equipment to anyone other than your attorney. Take photos of your damaged equipment.

Seek Advice from a Professional

Many accidents between bikes and cars involve complex legal issues. You may want to consult a personal injury attorney who understands bicycling or has handled bike accident cases. Such an attorney can:

• advise you on how to proceed
• negotiate with the insurance companies, or
• represent you in a lawsuit.

Don’t communicate with the insurance companies before consulting an attorney. Anything you say to the insurance company could be used against you later. Sometimes a letter from an attorney to the insurance company will resolve issues while avoiding legal pitfalls. In fact, most injury cases are settled without ever going to trial.

If the case warrants it, your attorney can hire a bike accident expert to investigate the accident. That person might obtain skid mark measurements, photograph the scene, speak with additional witnesses, or measure and diagram the accident scene.

To learn more about bike accidents, including how to avoid them, get Bicycling & The Law: Your Rights as a Cyclist, by attorney Bob Mionske (Velo Press).

Proving Fault in Personal Injury Accidents: General Rules

How to decide who is legally at fault for an accident or personal injury.

Determining legal responsibility for an accident or injury (often called "liability") can be complicated, but often rests on whether someone was careless or "negligent." It's easy enough to say that the person or business that caused an accident must pay for your injuries. But before you get to that point, you must determine who was legally at fault.

Determining Legal Liability

Most accidents happen because someone was careless. The basic rule is: If one person involved in an accident was less careful than another, the less careful one must pay for at least a portion of the damages suffered by the more careful one.

Legal liability for almost all accidents is determined by this rule of carelessness, and by one or more of the following simple propositions:

• If the injured person was where he or she was not supposed to be, or somewhere he or she should have expected the kind of activity which caused the accident, the person who caused the accident might not be liable because that person had no "duty" to be careful toward the injured person.
• If the injured person was also careless, his or her compensation may be reduced by the extent such carelessness was also responsible for the accident. This is known as comparative negligence.
• If a negligent person causes an accident while working for someone else, the employer may also be legally responsible for the accident.
• If an accident is caused on property that is dangerous because it is poorly built or maintained, the owner of the property is liable for being careless in maintaining the property, regardless of whether he or she actually created the dangerous condition.
• If an accident is caused by a defective product, the manufacturer and seller of the product are both liable even if the injured person doesn't know which one was careless in creating or allowing the defect, or exactly how the defect happened.

When More Than One Person Is at Fault

When there is more than one person responsible for an accident -- for example, if several careless drivers cause a wreck -- the law in most states provides that any one of the careless parties is responsible for compensating you fully for your injuries. The responsible parties must then decide between themselves whether one should reimburse the others.

This rule about collecting from any responsible person provides you with a couple of important advantages. If one liable person is insured and the other is not, you can make your claim against the insured person for the full amount. And even if both are insured, you will have to settle your claim with only one insurance company. Initially, consider everyone you think might be responsible and notify each of them that you may file a claim for damages.  Then, depending on what you discover about how the accident happened, or on which insurance company takes responsibility, you will pursue a claim against only one.

How Your Own Carelessness Affects Your Claim

Even if you were careless and partly caused an accident, in most states you can still get at least some compensation from anyone else who was also careless and partly responsible for the accident. The amount of the other person's liability for the accident is determined by comparing his or her carelessness with your own. The percentage of liability determines the percentage of the resulting damages he or she must pay. This rule is referred to as comparative negligence.

There is no formula for arriving at a precise number for a person's comparative carelessness. During claim negotiations, you and an insurance adjuster will discuss all the factors that might have resulted in the accident. Then the question of your own carelessness goes into the negotiating hopper along with all the other factors that determine how much your claim is worth -- such as the seriousness of your injury and the amount of your medical bills.

Car Accidents: Proving Fault

Establish who's at fault in a car, motorcycle, or bicycle accident or crash.

As with other types of accidents, figuring out who is at fault in a traffic accident is a matter of deciding who was careless -- or "negligent," in legalese.

In many cases common sense will tell you that a driver, cyclist, or pedestrian acted carelessly, but you may not know what laws or rules that person violated. Your argument to an insurance company that another person was at fault for an accident can be strengthened if you find some "official" support for your conclusion. Here are a number of places to look for such support.

Police Reports

If the police came to the scene of your accident, particularly if they knew that someone was injured, they probably made a written accident report. Ask the traffic division of the police department how to get a copy.

Sometimes a police report plainly states an officer's opinion that someone violated a specific traffic law and that the violation caused the accident. It may even state that the officer issued a citation. Other times, the report merely mentions negligent behavior, without plainly stating that the violation caused the accident.

Regardless of how specific it is, any mention in a police report of a traffic law violation or careless driving by another person can serve as great support in showing that the other person was at fault.

State Traffic Laws

Another place to look for support for your argument that the other driver was at fault is in the state laws that govern driving. These rules of the road are contained in each state's statutes and are usually known as the vehicle code.

A simplified version of these laws (sometimes called "The Rules of the Road") is often available at a local department of motor vehicles office. The complete vehicle code is usually available at many public libraries, and all law libraries. You can also browse your state's statutes online using Nolo's help with legal research page.

In the index to the vehicle code, look for listings that may apply to your accident. For example, there may be listings for "speed limits," "right of way," or "roadway markings." If you visit a law library, the librarian may be willing to help you with your search, so don't be afraid to ask. If you find a rule that might apply to your accident, copy not only its exact wording but also the statute number, so that you can refer to it accurately when you negotiate your claim with the insurance company.

"No-Doubt" Liability

If you're involved in certain kinds of accidents, the other driver is at fault 99% of the time, and insurance companies hardly bother to argue about it.

Rear-End Collisions

If someone hits you from behind, it is virtually never your fault, regardless of why you stopped. A basic rule of the road requires a vehicle to be able to stop safely if traffic is stopped ahead of it. If it cannot stop safely, the driver is not driving as safely as the person in front.

The other sure-fire part of the rear-end accident claim is that the damage proves how it happened: If one car's front end is damaged and the other's rear end is, there can't be much argument about who struck whom. Of course, the driver of the car that hit you may have a claim against someone who caused you to stop suddenly, or against a third car that pushed his car into yours, but that doesn't change his or her responsibility for injuries to you and damage to your car.

Keep in mind, however, that even if you have been rear-ended, in a few circumstances your own carelessness may reduce your compensation under the rule of "comparative negligence." A common example is when one or both of your brake or tail lights were out, especially if the accident happened at night. Another example is if you had mechanical problems but failed to do all you could to move the vehicle off the road.

Left-Turn Accidents

A car making a left turn is almost always liable for a collision with a car coming straight in the other direction. Exceptions to this near-automatic rule are rare and difficult to prove, but they can occur if:

• The car going straight was going well over the speed limit.
• The car going straight went through a red light.
• The left-turning car began its turn when it was safe, but something unexpected made it slow down or stop. This is an extremely difficult exception to use because a basic rule of the road says a car making a left turn must wait until it can safely complete the turn before moving in front of oncoming traffic.

As with a rear-end collision, the location of the damage on the cars sometimes makes it difficult for the driver to argue that the accident happened in some way other than during a left turn.

Car Accidents Caused by Negligence

Learn about negligence -- a legal theory for proving fault in car accident cases.

Negligence is a legal theory that is the basis for many car accident lawsuits. If you’ve been in a car accident and have been sued or are suing the other party, there’s a good chance you’ve heard the term “negligence” kicked around. But what exactly is negligence and how do you prove it? Here’s a primer on using negligence as a basis for recovery in car accident cases.

What Is Negligence?

When a person is negligent, it means that he or she has behaved in a thoughtless or careless manner, which has caused harm or injury to another person. A person can be negligent by doing something that he or she should not have done (for example, running a red light or speeding), or by failing to do something that he or she should have done (for example, failing to yield, stop for a pedestrian, or turn on lights when driving at night).

Negligence is a legal theory often used in car accident cases. A driver must use care to avoid injuring other motorists, passengers, or pedestrians -- basically, anyone that he or she encounters on the road. If a driver is not reasonably careful and injures someone as a result, the driver is liable for injuring the accident victim.

Elements of a Negligence Claim

The person who brings the lawsuit (called the plaintiff) must show that the defendant (the person being sued) was negligent. If you are the plaintiff, you must show all of the following:

The law required the defendant to be reasonably careful. In car accident cases, the law requires drivers to be careful when encountering anyone they meet on the road -- passengers, persons in other vehicles, and pedestrians -- so this one is a given. This is called the "duty of reasonable care." 

The defendant was not careful. This is called "breaching" (or violating) the duty of care. In determining whether a driver was sufficiently careful, the law compares the driver’s conduct with the conduct expected of a “reasonable person.” The law asks: How would a reasonable, prudent person have behaved in the same or similar circumstances?

If the defendant’s behavior falls short of how a reasonable person would have acted, the defendant has violated the duty of reasonable care. Examples of conduct expected of a reasonable driver include:

• stopping at a red light
• watching for crossing pedestrians, and
• following the vehicle in front at a safe distance.

The defendant’s conduct caused plaintiff's injuries. You must also show that the defendant's conduct caused your injuries.

For example, Paula is suing Dan, claiming that she suffered whiplash when Dan rear-ended her car. Paula must provide evidence that the whip lash was due to being rear-ended by Dan and not due to some other accident or event. If Paula suffered whiplash the day before the collision while playing golf, she’ll have difficulty establishing that Dan’s conduct --  rear-ending Paula’s car -- caused her injuries.

The plaintiff suffered losses and/or was injured.  Car accident victims are entitled to compensation for injuries, lost wages or earning capacity, pain and suffering, and property damage (for example, damage to a car). If there aren't any monetary losses or provable injuries, the plaintiff can't recover anything. For example, if Paula in the above example doesn’t suffer any physical injury, doesn’t miss any work time because of the accident, and her car sustains no damage, she cannot recover compensation from Dan because there has been no injury or damage.

The plaintiff must show evidence of his or her injuries and other monetary losses to be compensated. If you are the plaintiff, it’s important to keep complete and detailed records of all injuries, medical expenses, and property damage.

What Duties Does a Driver Have?

The law requires drivers to use reasonable care to avoid harming anyone encountered on the road. But what exactly does this entail? Here are some examples of specific requirements that the law has imposed. If a driver fails to meet these requirements, he or she may be found to have violated the driver duty of reasonable care.

Driving at a reasonable speed. Drivers have a duty to drive at a reasonable, prudent speed. A person who drives at a speed that is unreasonable in light of the existing traffic, road, visibility, and weather conditions may be negligent.  Even driving at the speed limit can be considered negligent if, for example, visibility is low, the weather is bad, or the circumstances warrant particular caution (driving by a school where you can expect children to be crossing, for example).

Vigilance and keeping a proper lookout. Drivers have a duty to be alert and to maintain a careful lookout for other vehicles, pedestrians, and road hazards. Drivers are expected to see the things that an ordinary, prudent person would see. A failure to keep a proper lookout -- by, for example, failing to take care when driving by a road construction site or a school crossing -- can constitute negligence.

Maintaining control of the car. Drivers are expected to keep their car under control by, for example, being able to stop quickly. Negligence may be inferred if a car loses control (such as overturning or leaving the road) for no apparent reason.

Maintaining and using the car’s equipment. Drivers are expected to maintain their vehicles in safe working order. For example, lights and brakes should be working properly.

Driver Duties Imposed by State Law

Each state has motor vehicle laws governing how drivers are expected to behave on the road. In certain circumstances, violating a motor vehicle law gives rise to a "presumption" of negligence -- meaning that the defendant must present evidence to prove that he or she was not negligent (rather than requiring the plaintiff to prove that the defendant was negligent).

Examples of conduct that may give rise to a presumption of negligence include:

• driving under the influence of drugs or alcohol
• violating right-of-way rules, including a pedestrian’s right of way, and
• driving on the wrong side of the road.

Car Accident Defenses

There are a number of defenses available to a defendant in a car accident case based on negligence. Using these defenses can lower or erase the defendant’s liability (that is, the amount of compensation the defendant must pay the plaintiff). For example, if a pedestrian runs into the middle of the road and is hit by a car, the driver may escape all liability or may only have to pay for a portion of the pedestrian’s injuries.

Getting Help

Some small car accident cases are straightforward and can be handled without a lawyer. If, however, your car accident case is complicated, involves severe or permanent disability, or involves large damages, consider hiring a personal injury attorney. If you decide to consult a lawyer, go straight to Nolo’s Lawyer Directory.

For more information on representing yourself in a personal injury case, such as a car accident case, get How to Win Your Personal Injury Claim, by attorney Joseph L. Matthews (Nolo).

Car Accidents and Negligence: When You Are Liable for Another Persons Driving

You may be liable for a car accident and be sued for negligence, even if you werent driving or in the car.

In most car accident cases, the key issue is determining which driver is at fault for the accident. Usually, if one driver is negligent -- that is, did not use reasonable care or caution while driving -- he or she will be at fault.

However, in some situations, the law can assign fault to someone who was not driving or even present in the car at the time of the accident. Although this sounds surprising, there are a number of common situations where this can occur.

When an Employee Drives the Car

The law holds employers responsible for wrongful acts, including negligent driving, when they are committed by an employee while the employee is performing job duties. (This comes under the theory of "vicarious liability," or "imputed negligence." When two parties have a certain relationship with one another, the law can hold one party liable for the misconduct of another.)

For example, if you are an employer and your employee runs a red light and hits another car while driving the company car during work hours, you will be responsible for the damages caused by your employee.

Example:Dan is employed by ABC Bread Company to deliver bread to various stores each morning. On route, he rear-ends Jane, injuring her and damaging her car. ABC Bread Company will be responsible for Dan’s actions, because at the time of the accident he was performing his job -- making a delivery. If the accident had occurred on the weekend, when Dan, without permission, drove the delivery truck to Vegas for a weekend of gambling and drinking, ABC Company would not be liable for Dan’s actions.

When You Let Someone Drive Your Car

In some states, car owners are legally responsible for negligent driving by anyone using the owner’s car with the owner’s permission. These state laws don’t require that the parties have a relationship like that of employer-employee. Instead, in states with such laws, once you give someone permission to drive your car, you’re on the hook for their actions.

When Your Kids Drive the Car

In many states, parents are liable for their child’s negligent driving when they let their child use the family car. There are several types of ;laws and legal theories that allow this to happen.

Negligent entrustment. If a parent lends the family car to a minor child knowing the child is incompetent, reckless, or inexperienced, the parent may be liable for damage caused by the child’s driving. This legal theory is called negligent entrustment (see “When You Let an Incompetent or Unfit Driver Use Your Car,” below).

The family purpose doctrine.Some states adopt the “family purpose” doctrine. In those states, when someone purchases and maintains a car for general family use, the owner of that vehicle (generally, dad or mom) is liable for negligent driving by any family member using the car.

Signing a minor’s driver’s license application. Some states have laws that make the person who signs a minor’s driver’s license application legally responsible for the minor's negligent driving. So, if a parent signs the application, the parent will be liable for the child’s negligent driving.

When You Let an Incompetent or Unfit Driver Use Your Car

If you lend your car to an incompetent, reckless, or unfit driver, and that driver, through his or her negligent driving, causes a car accident, you will be liable for injuries and damage resulting from the accident. This is called negligent entrustment.

In a negligent entrustment case, the plaintiff (the person bringing the law suit) must prove that the car owner knew, or should have known, that the driver was incompetent at the time that permission was given.

When Is a Driver Incompetent, Reckless, or Unfit?

Lending your car to the following types of people can mean you have committed negligent entrustment, and you could be liable for any damages caused by the driver.

Intoxicated driver. Lending your car to someone who is drunk, or likely to become so, may be negligent entrustment.

Unlicensed and underage driver. Lending your car to a minor not old enough to legally drive is likely to be negligent entrustment.

Inexperienced driver. Letting an inexperienced driver -- such as a minor with only a learner’s permit -- drive your car unsupervised is another example of negligent entrustment.

Elderly driver. Just as someone can be liable for lending a car to a minor, lending a vehicle to someone whose advanced age makes them unfit to drive (for example, an elderly driver with particularly slow reaction times) can constitute negligent entrustment.

Ill driver. Lending a car to a driver who suffers from an illness that affects his or her driving -- for example, a person prone to falling asleep at the wheel -- could constitute negligent entrustment.

Previously reckless driver. You could be liable for negligent entrustment if you lend your car to someone who you know has a history of reckless driving.

Getting Help

If you have been involved in a car accident and are thinking of suing someone other than the driver of the other vehicle (or in addition to the driver of the other vehicle), you probably want to speak with a qualified personal injury lawyer. If you decide to consult a lawyer, go straight to Nolo’s Lawyer Directory.

Car Accidents Caused by Cell Phone Use

You may be liable for a car accident if you were using a cell phone while driving.

An increasing number of states and municipalities prohibit the use of cell phones while driving, exposing drivers to penalties such as fines. But did you know that in addition to breaking the law, using a cell phone while driving may also expose you to a lawsuit if you are involved in a car accident? Here’s an update on some of the latest legal developments regarding cell phone use and car accidents.

Drivers Using Cell Phones May Be Responsible for Car Accidents

When one driver sues another for damage resulting from a car accident, the person bringing the lawsuit (the plaintiff ) generally has to prove that the other driver (the defendant ) caused the accident through his or her careless driving.

In some recent cases, plaintiffs have argued (and some courts have agreed) that a driver was legally at fault for the accident (“negligent,” in legalese) because the driver used a cell phone immediately before or during the collision.

In other cases, injured plaintiffs have also been found to have contributed to the accident because they were using a cell phone while driving.

Examples of careless driving caused by cell phone use include:

• driving with only one hand on the steering wheel
• taking eyes off the road to reach for a cell phone or dial a number
• failing to keep a proper lookout and to pay attention to surrounding dangers because of distractions caused by the cell phone (this includes being distracted by a passenger’s cell phone use), and
• being distracted by a conversation on a cell phone (according to some studies, being involved in any kind of conversation -- particularly an emotionally charged one -- is enough to distract a driver and cause him or her to drive carelessly).

Employees Doing Business on Cell Phones

An employer might be legally responsible for a car accident caused by an employee if the employee was on a work-related call at the time of the accident. In such an accident, the injured person is more likely to sue the employer, rather than the employee-driver, because the employer typically has more money -- "deeper pockets," as lawyers say -- to pay a settlement or lawsuit judgment. This is why growing numbers of employers prohibit employees from making or taking work-related calls while driving.

Are Parents Responsible for Kids’ Cell Phone Use?

In a recent case, plaintiffs argued that parents should be held legally responsible for car accidents caused by their kids’ cell phone use. In this case, the parents provided the minor child with the cell phone, and the child was using a cell phone while driving. The law is still undecided on this issue, but parents should think twice before encouraging their kids to make calls while driving.

And keep in mind that some states have special cell phone laws applying to teens or novice drivers. In these states, teens may be prohibited from using cell phones while driving or may have more stringent restrictions than do adults.

Insurance

Insurance companies are paying close attention to the link between cell phone use and car accidents and many auto insurance websites warn of the dangers of distracted driving. If you are at fault for a car accident caused by cell phone use, or are ticketed for talking while driving, you’re likely to see your insurance premium rise. The best way to avoid a higher premium is to avoid an accident -- and potential driver distractions -- altogether. 

For a detailed guide on how to handle your own car accident or other personal injury claim, get How to Win Your Personal Injury Claim, by attorney Joseph L. Matthews (Nolo).

Car Accidents With Pedestrians

Heres what to do, and how to determine fault, if you hit a pedestrian.

Hitting a pedestrian while driving a car is a scary occurrence, but not uncommon. According to statistics gathered by the National Highway Traffic Safety Administration, over 60,000 pedestrians were injured in traffic accidents in 2006. Hitting a pedestrian at a speed of over 30 miles per hour results in more serious injuries and fatalities -- yet a driver can severely disable a pedestrian in a crash where the driver is traveling only 10 miles per hour.

As a driver, it’s important to know what to do immediately after an accident with a pedestrian. By staying calm and speaking to the right parties, you can minimize your liability. Drivers should also learn the basic rules of fault, how injuries and damages will be compensated, and most importantly, how to avoid such accidents in the first place.

What to Do Immediately After the Accident

Most drivers that hit pedestrians are extremely upset immediately after the accident. Take a deep breath and focus on the following:

Safety comes first. First, get any injured people to a place of safety. Do not attempt to administer medical treatment beyond what is required of you in an emergency, such as CPR.

Get medical and legal help. Next, contact the police, medical care providers, and auto insurance providers (the driver’s and the pedestrian’s). If you are facing possible criminal charges for the accident, such as driving under the influence, contact a criminal defense attorney for yourself if you can. When the police and your insurance agent arrive, give truthful statements to them about how the accident took place.

Exchange contact information, but not much more. If the pedestrian is not incapacitated, exchange your name, phone number, and insurance information with them. Avoid talking extensively with the pedestrian or their friends or family members. Admitting fault, or making statements such as “I feel so guilty,” could expose you to a personal injury lawsuit. You should also avoid speaking directly to the pedestrian’s attorney or auto insurance company. It is important to have your auto insurance company communicate with the pedestrian’s attorney, auto insurance company, or pedestrian themselves.

Who Is at Fault?

When a driver hits a pedestrian, often the biggest question is: Whose fault was the accident? Generally, fault is determined by the law of negligence. A person who fails to exercise a reasonable standard of care under the circumstances may be considered “negligent.” For a detailed discussion of negligence in car accident cases, read Nolo’s article Car Accidents Caused by Negligence.

However, both the driver and the pedestrian can be negligent. For example, the pedestrian may be crossing the street illegally while the driver is traveling in excess of the posted speed limit. This scenario is treated differently in different states.

Some states, such as Maryland and Virginia, follow what's called a "pure contributory negligence" rule. This means that if the pedestrian contributed in the slightest bit to the accident, then he and his auto insurance company cannot recover damages from the driver and his auto insurance company.

Other states follow a "comparative fault" rule. This means that a pedestrian can recover some damages even if he was partly at fault. (To learn more about contributory and comparative fault, read Nolo’s article Car Accident Defenses: Contributory and Comparative Negligence.)

Police Reports and Insurance Company Findings

The police will take statements from the driver, pedestrian, and witnesses to determine who was at fault. They may make a conclusive finding on the spot or conduct a detailed investigation to make the finding later.

The police report from the accident will indicate which party the law enforcement officer saw as being at fault. Auto insurance companies, however, may dispute this finding. Insurance companies typically send an adjuster to the scene of the accident, or view the damage to persons and property soon after the accident has occurred. If you believe that your insurance company will unfairly assign you a greater percentage of fault, consider retaining a personal injury attorney to argue that you have a lower percentage of fault.

Insurance Coverage for Pedestrian Accidents

Injured pedestrians are usually covered under their health and disability insurance policies, or worker’s compensation coverage, if the accident occurs on the job. They may also be covered under one or more auto insurance policies.

Payment Under Auto Liability Insurance

An injured pedestrian can usually file a claim against the driver’s or vehicle owner’s auto liability insurance policy. Almost all states require that vehicle owners and drivers carry liability insurance to cover personal injuries to third parties and damage to third parties’ property. Recoveries are dependent on whose fault the accident was and various state statutes. (For a primer on determining fault in car accident cases, read Nolo’s article Car Accidents Caused by Negligence.)

Payment Under No-Fault Coverage

Some states, called “no-fault” states, require insurance companies to pay for the medical expenses and lost wages of their own policyholders, regardless of who is at fault. This is also known as personal injury protection (PIP).

When it comes to coverage for injuries to pedestrians in no-fault states, laws between the states vary. In some states, the driver’s insurance company pays the amount of the pedestrian’s medical expenses up to the PIP limit, even if the accident is the pedestrian’s fault. There are exceptions to this payment scheme. For example, in New Jersey, if a pedestrian is not insured, she or he may be paid out of a special state-mandated fund called the Unsatisfied Claim and Judgment Fund.

Seek a Lawyer's Advice

State laws vary widely when it comes to car insurance schemes, and each scheme has limitations and exclusions. In addition, recovery may depend on the particular insurance policies involved as well as judicial decisions in that state.

In order to sort this all out, injured pedestrians may want to seek advice from a professional, such as the pedestrian’s own insurer or a personal injury attorney. Pedestrians should ask an attorney which auto insurer they should approach first, and from which insurer they might be able to receive additional coverage.

Avoiding Pedestrian Accidents

The best way to avoid pedestrian accidents is to understand that “defensive driving” means being wary of people who walk, use a bicycle, operate a wheelchair, rollerblade, rollerskate, ride an electric scooter, and play in the road. Pay particular attention to young children and older adults. These individuals may be less aware of drivers on the road. They are more likely to stray outside crosswalks and not pay attention to traffic signals.

It is important to remember that individuals who are not in a motor vehicle and are in the road are extremely vulnerable and more likely to be seriously injured than a driver. If you take care to give pedestrians notice, room, and time to move out of your path, you may be able to avoid hitting a pedestrian.

To learn more about dealing with insurance company, settling claims, and handling your own car accident case, get How to Win Your Personal Injury Claim, by attorney Joseph L. Matthews (Nolo).

Special thanks to David Snyder, vice president and assistant general counsel of the American Insurance Association.

Bike Accidents: Collisions With Cars at Intersections

Learn about liability when bikes and cars collide at intersections -- and how to avoid these crashes and accidents.

Although intersections represent a relatively small portion of a cyclist’s travel route, they are where a cyclist is most at risk of getting hit by a car or otherwise involved in a car accident. Only 11% of bicycle accidents involve a collision with a car; but of these, 45% take place in intersections. (Contrary to popular fears, the majority of bicycle accidents -- 59% -- involve only the cyclist, who loses control of the bike and crashes.)

In order to minimize the risk of intersection accidents with cars, cyclists need to maximize their visibility, understand the rules of the road, learn to recognize some of the most dangerous intersection hazards, and take safety precautions when approaching and riding through an intersection.

It also pays to learn the basic legal rules of liability -- that is, who is responsible for an accident. Cyclists who don’t follow road rules or don’t keep a proper lookout might be deemed responsible for an accident. And cyclists who do follow the rules of the road but are nevertheless hit by a driver who doesn’t follow the rules of the road may be surprised to find that the driver and police blame the cyclist for the crash.

So to avoid liability for an accident after being hit by a car, cyclists must understand -- and follow -- both the basic legal rules of liability and the rules of the road.

How to Avoid Bike Accidents at Intersections

Intersections pose a special risk to cyclists for many reasons: Cars often underestimate the speed of a bike; cars often don’t expect bikes to be on the road so car drivers aren’t watching for bikes; and even if cars are on the lookout for bikes, they sometimes just don’t see them because bikes are smaller and can blend into the background (due to the biker’s clothing, the sun, and other factors).

Cyclists should keep this in mind and take extra precautions to avoid accidents at intersections by:

• increasing the visibility of the bike and cyclist (with front and rear lamps, reflective clothing, and brightly colored clothing)
• being on the lookout -- a legal requirement for bikes and cars alike
• riding defensively, and
• learning to execute emergency maneuvers to avoid collisions. The free pamphlet, Bicycling Street Smarts, provides information on such maneuvers (see www.bikexprt.com, click “My Publications” then “Bicycling Street Smarts"). Also, the League of American Bicyclists provides information on classes that teach emergency maneuvers (see www.bikeleague.org, click “Programs,” then “Bike Education”).

Who is at Fault -- the Bike or the Car ?

Legally speaking, in nearly every state a bicycle is considered to be a “vehicle” and therefore, just like motorists, cyclists must follow the rules of the road. When it comes to collisions occurring at intersections, liability usually boils down to who had the right-of-way -- the car or the bike.

Right-of-way rules: No traffic signals. Generally, when two vehicles approach an intersection not controlled by a traffic signal, the vehicle arriving first has the right of way. If the vehicles arrive at the same time, the vehicle to the right has the right-of-way. This is also the rule for vehicles approaching intersections controlled by stop signs -- the vehicle to the right has the right of way. If, however, the intersection consists of a minor street intersecting with a major street, then the traffic on the major street has the right-of-way.

Right-of-way rules: Traffic signals. The right-of-way at intersections controlled by signals is determined by the signal. If a signal sensor is unable to detect the presence of a bicycle, the cyclist can (1) position the bicycle closer to the sensors embedded in the road, and if that doesn’t work, wait until it is safe to cross against the light, or (2) cross at the crosswalk.

Having said that, there are other legal considerations that come into play depending on the type of intersection and whether the car is turning or going straight through. These different intersection situations require cyclists to use different defense techniques to avoid accidents.

Types of Intersection Accidents

Here are some of the more common situations when bikes and cars meet at intersections.

Accidents at Stop Signs

The most frequent type of intersection collisions, representing 9.7% of all intersection accidents, occur at intersections where the cyclist has a stop sign and the motorist does not. After stopping at the stop sign, the cyclist then rides out into the intersection in front of a car that has the right-of-way. Absent other factors, the cyclist is at fault. Most of these accidents occur among riders younger than age 15, indicating that a young person’s inability to accurately judge the distance and speed of approaching cars is the main factor in these accidents.

Second in frequency, representing 9.3% of all intersection accidents, is when the cyclist has the right-of-way on a street without a stop sign and the car approaches from a street that does have a stop sign. After stopping at the stop sign, the car then drives out into the intersection, in front of the cyclist who has the right-of-way. Absent other factors, the accident will be attributed to the driver. If, however, the cyclist is riding against traffic (as happens in 60% of these sorts of collisions), both the cyclist and the driver may be at fault.

The best way to avoid these accidents is to:

• maximize your visibility
• keep a proper lookout when approaching an intersection, and
• adjust your lane position to the left as you approach an intersection so that you are more visible to drivers.

Bike’s Failure to Yield

Representing 7.1% of all intersection accidents, this is the third most frequent type of intersection accident. The cyclist stops at the intersection, which may be either controlled or uncontrolled, and then rides into the intersection without yielding -- perhaps because she didn’t see the car or misjudged the car’s distance or speed. Often, the cyclist is young. In these accidents the cyclist is usually at fault.

Car Turning Left: The “Left Cross”

In this accident, the motorist and bicyclist approach the intersection from opposite directions, and as they enter the intersection, the motorist turns left, colliding with the cyclist. Usually the motorist doesn’t see the cyclist or misjudges the cyclist’s speed. In most cases, the driver of the car will be liable to the cyclist.

The cyclist can take safety measures to reduce the risk of these accidents:

• maximize your visibility
• adjust your speed at the intersection so that you can brake quickly if necessary
• consider taking the entire lane through the intersection to increase your visibility to cars (the trade-off of this approach is that you may annoy motorists behind you), and
• don’t attempt to cross the intersection by riding into the crosswalk from the sidewalk -- this makes it even more difficult for the motorist to see you.

Car Turning Right: The “Right Hook”

There are several ways that accidents can happen when cars make right turns at intersections.

• The car passes a bike as both approach an intersection, and then the car turns right at the intersection, cutting the cyclist off.
• The bike passes a slower car on the right, and the car makes a right turn into the bike.
• The car and bike are waiting at a light. The car turns right when the light changes, cutting off or perhaps hitting the bike.

In most of these situations, the car will be at fault. But again, regardless of fault, a cyclist can take measures to reduce the chance of such an accident.

• Keep a proper lookout -- use a mirror, and check your mirror as you approach the intersection.
• Be prepared to brake suddenly in case a car cuts you off.
• Adjust your lane position by riding closer to the car lane or taking the entire right lane as you cross the intersection.
• Consider crossing at the crosswalk -- but note that riding into the crosswalk from the sidewalk puts you at risk of being hit by both left and right-turning drivers, who won’t be expecting a cyclist to suddenly enter the crosswalk. You can reduce your chances of being hit in the crosswalk by walking your bike across, as a pedestrian.
• Never pass a car on the right at intersections or driveways. Either slow down to match the pace of the car or take the lane and pass on the left.
• Avoid being in a car’s blind spot while approaching from behind or while waiting at traffic lights.
• Use a “bicycle box” where available. (Portland, Oregon is beginning to experiment with these European innovations). These position cyclists ahead of other vehicles at intersections.

Why Liability Matters

The ultimate goal of safe cycling is to avoid accidents altogether. But cyclists who violate right-of-way rules also face another potential hardship -- if an accident results, they might be found at fault for the accident. This means if the motorist is hurt or the car is damaged, the cyclist will be responsible. And if the cyclist is hurt, he or she may not be able to recover for injuries, medical expenses, lost wages, or pain and suffering.

The “almost stop.” One liability rule bears special mention. In some states, if the cyclist doesn’t come to a complete stop at an intersection, the cyclist may be barred from any recovery, even if the motorist is mostly responsible for an accident. This may be true even if the cyclist came to an “almost stop”. In order to preserve your rights, you must come to a complete stop when required to by law, although, contrary to popular misconception, you are not required to put a foot down to come to a complete stop.

For a complete discussion of almost every type of bike accident imaginable, including issues of liability and safety tips for avoiding them, get Bicycling & The Law: Your Rights as a Cyclist, by Bob Mionske (Velo Press).

Insurance Adjusters: First Discussions

When talking about personal injuries to the other party's insurance company, remember this rule: Be polite but say little.

Shortly after you've notified responsible parties that you've been injured in an accident and intend to file a claim for compensation, you're likely to hear from one or more insurance companies. These first conversations after your accident may be difficult, as you may be agitated or in pain, but common sense and a few guiding principles will keep you from saying anything that will adversely affect your insurance claim.

Identify the Person With Whom You Speak

Before you discuss anything, get the person's name, address, and telephone number, the name of the insurance company, and the person or business the company represents. Record this information in a file.

Remain Calm and Polite

Although you may well be angry about the accident and your injuries, taking out your anger on the insurance adjuster will not help you win compensation. Insurance adjusters are used to dealing with angry claimants, but they are human and do not respond kindly to abuse. It is a good idea to avoid losing your temper with or heaping abuse on the agent during your negotiation process. You might even be nice -- an insurance adjuster's good will toward you may pay off in promptly handling your claim or in believing you about something it is difficult for you to prove.

Give Only Limited Personal Information

You need only tell the insurance adjuster your full name, address, and telephone number. At this point you need not explain or discuss any more than that about your work, your schedule, or your income, nor do you have to give detailed family or other personal information.

Do Not Give Details of the Accident

 Note that these instructions apply to contact with another person's insurance company. When it comes to your own insurance company, you may be obligated by the rules of your policy to give your own insurance adjuster information about the accident. Be sure to read with care anything you're asked to sign, especially a release form that allows your insurer to gather information. For more about this, see How to Win Your Personal Injury Claim, by attorney Joseph L. Matthews (Nolo).

Insurance adjusters or other representatives may try to get you to "give a statement" about how the accident happened -- or they may simply engage you in conversation, during which they will try more subtly to get you to tell them about the accident. Politely refuse any discussion of the facts of the accident except the most basic: where, when, the type of accident, and the vehicles involved if it was a traffic accident. Say that your investigation of the accident is still continuing and that you will discuss the facts further "at the appropriate time." Later, you will be making a written demand for compensation in which you will describe the accident in detail.

Witnesses

If an adjuster asks about witnesses and you know of some, respond that there "may be" witnesses and that you will let the insurance company know "at the appropriate time." Do not commit yourself to identifying witnesses or to providing witness statements. Also, if the adjuster does ask you about witnesses, ask the adjuster if he or she knows of any.

Other Responsible Parties

If adjusters or representatives ask about potential responsible parties other than you and their insured, give any basic identifying information you may have and a general description of how this other person was involved, but, again, do not discuss the accident in detail. Also, ask whether the adjuster is aware of anyone else who might be responsible for the accident.

Don't Give Details of Your Injuries

Naturally enough, an insurance adjuster is going to want to know about your injuries. However, you should not give a detailed description yet, in case you leave something out or discover an injury later, or your injury turns out to be worse than you originally thought.

Later, when you know the true extent of your injuries and treatment, you will include a complete medical description of your injuries in your written demand for compensation. Until then, give only a general description of injuries ("I've hurt my knee and back" or "My wrist is broken and I have neck and back pain"), and tell the adjuster you do not yet know how severe your injuries are. Also tell the adjuster that you will be seeking or continuing medical treatment. You do not have to say what doctors or other medical providers you are seeing, and you should not yet give the adjuster their names and addresses.

Resist the Push to Settle Immediately

Insurance adjusters sometimes try to offer a settlement during the first one or two phone calls. Such quick settlements save the insurance company work, and, more important, settling fast gets you to accept a small amount before you know fully what your injuries are and how much your claim is really worth. Don't do it. Agreeing may seem like a simple way to get compensation without having to go through the claims process, and a quick settlement is often tempting, but it will almost certainly cost you money, sometimes quite a lot.

Set Limits on Conversations

In your first contact with an insurance adjuster, make it clear that you will not be discussing much on the phone. Not only should you give very limited information in this first phone call, as discussed above, but you should also set clear limits on any further phone contact.

Let the adjuster know that, until you have finished investigating the accident, have completed medical treatment, and have fully recovered from your injuries, you do not want to discuss any further either how the accident happened, what your injuries are, or what a settlement amount should be. Ask that the adjuster communicate with you in writing until you present your written demand for compensation and actual settlement negotiations begin.

In some situations, however, it may not be practical to stop all phone conversations. For example, if you have been in an auto accident, you may need to discuss repairs to your car. If you do need to speak to the adjuster again, set whatever limits you want on the place and times -- home or work, morning, evening, weekends -- for telephone contact.

There are good reasons to limit your phone conversations with insurance adjusters. Some will call frequently in an attempt to get you to settle quickly, and they can become a real nuisance. It's good to nip this in the bud.

More important, until you have had a full opportunity to investigate and think about the accident, and to determine the extent of and to recover from your injuries, you will not have accurate information to provide. And, if you give incomplete or inaccurate information on the phone, the insurance company may try to make you stick to it later on. Some insurance adjusters are good at getting you to say something which could be considered an admission of some fault on your part, or which limits the seriousness of your injuries. It is therefore much better to have no discussions at all until you have made your compensation demand in writing and you are fully prepared to discuss a settlement.

Take Notes

As soon as your conversation is over, write down all the information you received over the phone, as well as whatever information you gave to, or requests you made of, the person with whom you spoke. Get in the habit of note taking for all conversations with anyone from the insurance company.

How Much Is Your Personal Injury Claim Worth?

Here's how insurance companies determine the value of your personal injury claim.

Figuring out how much your accident injuries are worth is a critical aspect of any personal injury claim, and it's the part of a claim that is most difficult to determine; the amount varies depending on your very particular circumstances. Here is an overview of how insurance companies determine the value of a claim.

What an Insurance Company Must Compensate

To determine what your claim is worth, you must first know the types of damages for which you may be compensated. Usually, a person who is liable for an accident -- and therefore his or her liability insurance company -- must pay an injured person for:

• medical care and related expenses
• income lost because of the accident, because of time spent unable to work or undergoing treatment for injuries
• permanent physical disability or disfigurement
• loss of family, social, and educational experiences, including missed school or training, vacation or recreation, or a special event
• emotional damages, such as stress, embarrassment, depression, or strains on family relationships -- for example, the inability to take care of children, anxiety over the effects of an accident on an unborn child, or interference with sexual relations, and
• damaged property.

The Insurance Company's Damages Formula

When determining compensation, it is usually simple to add up the money spent and money lost, but there is no precise way to put a dollar figure on pain and suffering or on missed experiences and lost opportunities. That's where an insurance company's damages formula comes in.

At the beginning of claim negotiations, an insurance adjuster adds up the total medical expenses related to the injury. These expenses are referred to as "medical special damages" or simply "specials." That's the base figure the adjuster uses to figure out how much to pay the injured person for pain, suffering, and other nonmonetary losses, which are called "general" damages.

When the injuries are relatively minor, the adjuster multiplies the amount of special damages by 1.5 or 2. When the injuries are particularly painful, serious, or long-lasting, the adjuster multiplies the amount of special damages by up to 5. (The multiplier may be as great as 10 in extreme cases. For information on exactly how an adjuster determines the multiplier, see How to Win Your Personal Injury Claim, by attorney Joseph L. Matthews (Nolo).)

The adjuster then adds on any income lost as a result of the injuries.

That's all there is to the formula. However, this figure -- medical specials multiplied by a number between 1.5 and 5, then added to lost income -- is not a final compensation amount but only the number from which negotiations begin.

Percentage of Fault

The extent each person is at fault is the most important factor affecting how much the insurance company is likely to pay. The damages formula gives you a range of how much your injuries might be worth, but only after you figure in the question of fault do you know the actual compensation value of your claim -- that is, how much an insurance company will pay you.

Determining fault for an accident is not an exact science, but in most claims both you and the insurance adjuster will at least have a good idea whether the insured person was entirely at fault, or if you were a little at fault, or if you were a lot at fault. Whatever that rough percentage of your comparative fault might be -- 10%, 50%, 75% -- is the amount by which the damages formula total will be reduced to arrive at a final figure.

For an extensive discussion of determining the value of your claim -- along with many examples -- see How to Win Your Personal Injury Claim, by attorney Joseph L. Matthews (Nolo).

Settling Your Personal Injury Claim FAQ

If you are injured in an accident, here are the first steps to take.

What's Below:

I've been hurt in an accident and I want to file a claim for my injuries. What's the first thing I should do?

How soon do I need to notify people about my intention to file a claim for my accident injuries?

What is the deadline for filing an accident injury claim against a government entity?

Is there a deadline for filing a lawsuit to recover compensation for my injuries?

I've been hurt in an accident and I want to file a claim for my injuries. What's the first thing I should do?

There are a number of things you can do in the first few days and weeks after an accident to protect your right to compensation should you want to file an injury claim. Except for filing a formal claim against a government entity, there's no single step that you absolutely must take to obtain a fair settlement, and no set order in which you must proceed. However, the more of the following suggestions you can follow, the more smoothly your claim process is likely to flow.

• Write down as much as you can about the accident itself, your injuries, and any other losses (such as wages) you've suffered as a result of the accident.
• Make notes of conversations that you have with people involved in the accident or the injury claim.
• Preserve evidence of who caused the accident and what damage was done by collecting physical evidence and taking photographs.
• Locate people who witnessed the accident and who might be able to help you prove your case , and
• Notify anyone you think might be responsible for the accident of your intention to file a claim for your injuries.

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How soon do I need to notify people about my intention to file a claim for my accident injuries?

Unless you're filing a claim against a government agency or employee, you need not notify the people you think are responsible for your injuries within a set number of days after an accident. But that doesn't mean you should drag your feet. On the contrary, acting right away -- within a few days, if possible -- will increase your chances of receiving a quick and fair resolution to your claim.

Giving notice doesn't obligate you to file a claim; it simply preserves your rights and prevents others from later saying that your claim is unfair because you waited too long to tell them about your injuries. If you promptly notify others that you intend to file a claim for your injuries, you can then move at your own pace in processing and negotiating the claim with the insurance company or government agency that winds up taking responsibility.

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What is the deadline for filing an accident injury claim against a government entity?

If your accident might have been even partially caused by a government entity or employee -- the city, county, state, or federal government, or any public agency or division (a city bus or a school district, for example) -- you must file a formal claim within a short time after your accident. This period of time usually ranges between 30 days and one year, depending on your state. If you fail to file a claim within the time limit, or fail to include required information in your claim, you may forever lose your right to collect compensation.

To find the time limit for your state, call your city or county attorney's office and ask. Although they may be the ones defending against your claim if you file it, they are under a legal obligation to give you correct filing information. You can also find a complete list of time limits, plus instructions on how to file a government claim, in How to Win Your Personal Injury Claim, by Joseph Matthews (Nolo).

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Is there a deadline for filing a lawsuit to recover compensation for my injuries?

If you have no success reaching a settlement with an insurance company, you may be forced to consider bringing a lawsuit in small claims or other court. But you must be aware of the laws, called "statutes of limitations," that limit the time in which you have to file. If you miss your state's deadline, you will lose your right to recover compensation in court, and will be forced to abandon your claim altogether.

Check your state's laws to find the time limit that applies to your case.

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Dealing With Your Insurance Company FAQ

Communicating with insurance companies about your personal injury claim.

What's Below:

How does the insurance claims process work?

What guidelines should I follow when another person's insurance company calls me to talk about my injuries?

How do I make a formal claim for compensation for my injuries?

How do insurance companies decide how much they'll pay to compensate someone for an injury?

Will my health insurance coverage or paid sick leave from work limit my compensation for an accident?

How does the insurance claims process work?

The claims process usually proceeds in predictable steps. Before you file a claim, you must notify people who may be responsible for the accident that you've been hurt and intend to file a claim for your injuries. This increases your chances of getting a quick settlement and prevents others from later saying that your claim unfairly surprised them.

Next, after you've taken time to thoroughly investigate your claim by gathering evidence, establishing who's responsible for the accident, determining what you believe your claim is worth, and planning good arguments, you will write a formal demand letter and submit it to the insurance company of the person who you believe is responsible for your injuries. (This may include your own insurance company -- for example, if you are covered by a no-fault automobile policy or need to make a claim for uninsured or underinsured motorist coverage.) From there, you will engage in informal negotiations with the insurance company until you agree on a settlement you can live with.

Many insurance claims are that simple, though sometimes you may find yourself dealing with a stubborn or unreasonable claims adjuster. If that's the case, you must resort to more determined negotiation tactics -- or perhaps consult an experienced personal injury lawyer. If all else fails, you may even have to take your case to court.

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What guidelines should I follow when another person's insurance company calls me to talk about my injuries?

After you notify others that you've been hurt in an accident and intend to file an injury claim, you may receive phone calls from one or more insurance companies that want to talk to you about what happened. In these first conversations -- which will most likely occur before you file your claim for compensation (called a "demand letter") -- you should abide by the following principles:

• remain calm and polite
• identify the person you're speaking with, the company he or she represents, and the person who is insured
• give limited personal information (your name, address, and phone number is sufficient)
• do not give details about the accident or your injuries
• resist any push to settle your claim immediately
• set limits on further phone contact, and
• take notes about any important information you received during the phone call, as well as whatever information you gave to or requests you made of the insurance adjuster.

Remembering these important rues will help you maintain your chances of receiving a good settlement for your injury claim.

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How do I make a formal claim for compensation for my injuries?

After you decide which insurance company (or companies) should pay for your injuries, and you gather all the evidence you need to establish your claim, you must send the insurance company a demand letter. This letter is a critical element of your claim negotiation process, so it is essential that you write it carefully and well. In your demand letter, you set out your strongest arguments concerning:

• why the insured person is legally responsible for your injuries
• what your injuries were and are
• what kind of medical treatment you've had and how much it cost
• what your income loss was
• what other damages you suffered, and
• if you have no-fault automobile insurance, why you qualify to make a claim against the insured person.

Your letter should conclude with a demand on the insurance company for a lump sum to settle your entire claim. 

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How do insurance companies decide how much they'll pay to compensate someone for an injury?

While the final payment figure depends on negotiations with the injured person, insurance companies and lawyers do use a formula to calculate a range of compensation for an injury. In general, if you've been injured you can expect to be reimbursed for:

• medical care
• lost income
• temporary and permanent pain and other physical discomfort and disability, and
• loss of family, social, and educational experiences.

In calculating the range of compensation, a claims adjuster begins with a standard damages formula.

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Will my health insurance coverage or paid sick leave from work limit my compensation for an accident?

Whether you paid for medical care out of your own pocket or your health insurance covered it is none of a claims adjuster's business. The same goes for whether your lost time at work was covered by sick leave or vacation pay. In fact, it is improper for an adjuster even to ask about such payments. You paid for your health insurance and earned your sick leave or vacation pay; now the insurance for the person who caused the accident has to pay.

Your own health insurance, however, may require that, out of your settlement, you reimburse it for some or all of the amounts it has paid to treat your injuries.

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