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Personal Injury Claims Process Revealed

A ROAD MAP FOR WHAT TO EXPECT ALONG THE WAY

PERSONAL INJURY CLAIMS PROCESS REVEALED

At Tryk Law, we know how your personal injury case works from the date of the accident all the way through trial.  We know this because we have handled thousands of injury cases over the years and achieved numerous successful results on behalf of Fresno Injury Victims.  

 

This is a resource aimed to help you to understanding the ins and outs of an injury claim, including what happens if the case does not settle and it must be filed in Fresno County or another California Superior Court Jurisdiction.

WHAT TO DO IMMEDIATELY AFTER A MOTOR VEHICLE COLLISION

After an accident, try and calm yourself. Think! Do not panic and remember to breathe.  Acting irrationally will only make things worse or impair your judgment.

 

Depending on how bad the accident is and where it happened, there are a few things you should do if you are able to at the time.  This is the short list of things to do if you are involved in a motor vehicle collision:

 

Be mindful of your safety and the safety of others after the collision.

 

Make sure that you are in a safe place and there is little risk of a secondary collision. If you are on the freeway, take extra caution when pulling off to the shoulder and waiting for police.  Shoulders are unsafe and can place you at risk of a secondary collision.  If you drive to the nearest offramp without further damage or injury, it will be safer than pulling over to a freeway shoulder.

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SAFELY PERFORM THE FOLLOWING TASKS:

  • Turn your engine off.

 

  • If you are in pain, avoid moving unless you must move to safety.

 

  • Call emergency personnel, ambulance and/or police.

 

  • Take photos of the scene and other evidence, which may include the following items:
    • Your Vehicle.
    • The Other Vehicle(s).
    • Witnesses, if any.
    • The License Plates of all vehicles involved.
    • Any Skid Marks or Debris left in the roadway from the collision.

 

  • Get the other driver’s information, including the name, address, driver’s license, including insurance information and police report number, if available (always exchange information in a safe place).

 

  • Get contact information of all witnesses.  If may be crucial later in your case if there is a dispute over fault.

 

  • If you are injured, contact a Fresno Personal Injury Lawyer at your earliest convenience.

BE MINDFUL OF THE STATUTE OF LIMITATIONS (CASE DEADLINE)

In California, there are deadlines to file lawsuits and notice requirements if the claim involves a Government Entity.  These are called Statutes of Limitations and they control your opportunity to pursue a claim beyond certain deadlines.

 

The Statute of Limitations for General Negligence in California is typically Two (2) Years after the date of injury (often referred to as “Date of Loss”) in California resulting from a motor vehicle collision caused by negligence.

 

In government entity cases, you may have to give formal, written and technical notice to a Governmental Entity (this is called a notice of claim) after the accident (usually within 6 Months).  Sometimes it is hard to know if a local government or other notice-requiring entity caused the collision, a lawyer can answer this question also.

FREE LAWYER CONSULTATION (IT SHOULD BE FREE)

A free consultation should be just that.  You should not be pressured into signing an agreement on the spot and you should feel free to shop around if the vibe is not right with the attorney or firm you are consulting with.

 

Tryk Law offers free consultations that are convenient to you—you can meet us in our office, call us over the phone, or sometimes we can even arrange to meet with you at a different location.

 

You should always bring items with you that will be helpful to us in answering your questions.  These items include:

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ITEMS TO BRING TO FREE LAWYER CONSULTATION

Photos — of the scene, drivers, witnesses, your injuries (if visible) or anything else important to the case. Having them in a digital format like your phone, flash drive or SD is ideal so that we can copy them directly into your potential case file.

 

Contact information — of everyone involved in and witnesses of the accident.

 

All insurance policy information — Your own declarations page and the information of the other driver in the accident. If you cannot find your declarations page, call your insurance agent and they will send you one immediately. You can have them fax it directly to our office at 888-528-5570.

 

Driver’s License – Yours.

 

Recent Paycheck Stubs — If you missed work following the incident due to your injuries.

 

Medical information — Medical records, bills related to the accident and discharge paperwork from any and all medical providers, if you have them.

 

Estimates, bills, and invoices for any property damage that may have occurred (for example: the car, damaged articles of clothing, etc.).

 

All health insurance information — include Medicare and/or MediCal if pertinent to you.

 

Copy of the Police report, if you have it. If you don’t, the Police report # and reporting agency.

 

A list of all doctors and health care providers you had to see due to your injuries.

This information will be helpful to Tryk Law, PC or any Fresno Personal Injury Lawyer you choose to consult about your potential case.  If you don’t have all of these items, don’t worry too much about it.  We typically track these these items down for most of our clients if they retain our Firm in their Fresno Personal Injury Matter.

AT THE INITIAL CONSULTATION

At the initial consultation, the lawyer or staff will ask lots of questions about how the accident happened, what medical treatment you received, your injuries, your damaged property, insurance coverage, the at-fault driver’s insurance company, coverage available and other questions. If you like Tryk Law Firm and we like your case and believe we can help you, you will have the option of hiring (Retaining) our law firm at that time.

CONTINGENCY FEE AGREEMENT — NO RECOVERY = NO FEE

Contingency Fee Retainer Agreement:  This is the document that  Tryk Law uses.  We do not take cases on an hourly basis, so there is no money to pay up front.  In a contingency fee case, our firm’s fees are based on a percentage of the total settlement or verdict.  If the case resolves before a lawsuit is filed, the fee is thirty-three and one-third percent (33.33%).  If it resolves after the filing of a lawsuit, our fee is forty percent (40%).  This is our fee agreement in every single case. Expenses are paid out only if there is a recovery.  Our firm accepts all of the risks of a case, so if there is no recovery, you do not pay anything.

Initiating the Personal Injury Claim

Once you hire a law firm, like Tryk Law, PC initial letters will be mailed to all of those involved in the case, including all insurance companies, parties, medical providers, collision reporting entities and health insurance providers.

 

The insurance companies will open a claim and assign claim numbers and put insurance “adjusters” in contact with you to gather information about you and your claim.  This information includes:

ISO Claim Indexing Form: There are some companies that keep track of insurance claims made by everyone.  The insurance companies use this to determine if accident victims had prior accidents that may have caused injuries that they are now complaining of.  For example, if you were in an automobile accident in 1996 and hurt your back, the insurance companies might say that your back pain from the 2012 collision is related to the prior accident.  Sometimes the information in these databases is wrong, and we order it so that we know what the insurance companies know.

 

Medicare/Medicaid Disclosure Form:  If you receive Medicare or Medicaid (medical assistance), and if either of those entities paid money for medical care because of your car accident, they may be entitled to be paid back.  This form allows us to talk with them to see what their demands are.  For more on Medicare, see our prior blog post on dealing with Medicare liens.

 

HIPAA Authorization: ​ This will allow us to collect your relevant medical records and to talk with your doctors about your injuries and case.

 

Opening Medi-Cal Claim:  If you are a Medi-Cal recipient and a portion of your medical bills were paid by Medi-Cal, we will open a claim with their office in Sacramento so that we can obtain their final lien amount ASAP.  This must be done prior to settlement of your claim and the process takes a while at times, so we open it immediately upon retention.

 

Designation of Attorney:  This is the last form you will sign, which designates us to act as your attorneys and make all contact with all persons and entities on your behalf.

THE LIABILITY INVESTIGATION

This is where all information gathered in relation to the collision is put together and decisions are made by each insurance company in relation to who caused the collision. The following items are factored into this decision but may not be admissible later for several reasons:

Police & Collision Reports – Police report and investigating Officer’s Opinions.

 

Witness Statements – Witnesses and their versions of what they observed.

 

Camera Footage – Video footage can come from a variety of sources—traffic cameras, red light cameras, even cameras attached to nearby buildings sometimes pick up road activity.  Your lawyer may seek out and attempt to preserve this type of evidence.

 

911 Calls – If an emergency  call was made, these recordings may prove to be helpful as evidence to prove who caused the collision if they reveal facts about the event.

 

Research – Legal Research may help if the collision is one that occurred in an uncommon manner.

The liability investigation is usually quick, but some take longer than others. In some cases – pan investigation may take months.  This is more common in truck accident cases or other cases where a person has been catastrophically injured or killed.

 

The investigation will usually begin with recorded statements and collision reports.  Collision reports may be obtained online in from many investigating entities, currently. Some counties still require that they be ordered by mail, however, which can take one to two weeks.

 

If 911 tapes or camera footage is necessary, those might take longer to obtain. Speaking to witnesses of course depends on their responsiveness.  The liability investigation may be renewed if new information comes in at any later point in the case.

HANDLING THE INSURANCE COMPANIES

At the same time as the liability investigation, we will work with the insurance companies.  This is one of the best reasons to hire a lawyer—so the insurance companies will stop bothering you (we find that some insurance companies are overly aggressive, and some are very unresponsive).

 

When you leave your lawyer’s office, letters should be sent on your behalf shortly thereafter.

 

Here are the two typical types of insurance companies:​

YOUR INSURANCE COMPANY

Your insurance company may provide the following benefits on your behalf:

 

Medical Payments Coverage:  They will open a claim and begin to pay your medical expenses immediately.  The expenses covered must be for treatment that is deemed reasonable, necessary and accident related.

 

Car Rental:  If you need a rental because your case is disabled, you should know whether you have rental car coverage and how long your insurance company will cover this cost.

 

Collision Coverage:  Again, if the negligent driver’s insurance company does not admit fault, or is still investigating the case, you must process the claim through your own insurance policy to utilize your own collision coverage.  Under a collision policy, your insurance company will pay to repair or replace  your car up to the fair market value, but you may be required to pay a deductible, which is usually $250 or $500.

 

Uninsured/Underinsured Motorist Coverage (UM/UIM):  In some cases, where the other driver either has no insurance, or has insurance that is too low to pay for all of your damages, your insurance company may step in to pay for the full claims or a portion of the claims.  In this situation, your insurance company may become your opponent and then require you to prove the fair value of your injuries and damages to them instead of the other driver’s company. We always look for this and can easily determine when and if you need to make a claim under these insurance policies.

 

Repayment/Subrogation:  Your insurance company may seek reimbursement from the other driver or you if benefits are paid out on your behalf for medical bills, property damage, rental cars or other policy benefits.  Sometimes these can be reduced or waived.

AT FAULT INSURANCE COMPANY

The other driver’s insurance company will either admit or deny liability for purposes of any negotiation without litigation.

 

If they deny liability, you will be left with little choice but to file a lawsuit in Court.  If there are compelling facts, it may be worth your time for your lawyer to try to convince them with a demand letter.   If the at-fault driver’s insurance company accepts liability, here is what they will take care of:

 

Replacement Vehicle: Car Rental for a “Reasonable Period of Time”.

 

Property Damage: ​ The negligent driver’s insurance company will also pay the lesser of these two: Repair cost of your vehicle or the fair market value of your vehicle.

INVESTIGATING YOUR DAMAGES FOR YOUR INJURY CLAIM

We must collect all information on your damages claim.  The investigation of your damages concludes when you are done treating with doctors and other health care providers:

 

Medical Records – When you finish with each provider, your attorney will order all of the relevant medical records, including ambulance records, if necessary. We will order medical records from before the accident as well to assure your integrity remains intact and free from accusations of a pre-existing condition.  If you had a pre-existing condition and it was worsened as a result of the accident, you can recover.

 

Medical Bills – Along with medical records, your lawyer will need to obtain all of your medical bills, even if they were paid by MEDPAY, your health insurance, Medicare/Medicaid or Medi-Cal.

 

Lien Information – If your bills were paid by Medicare or Medicaid, and sometimes if your bills were paid by private health insurance, your lawyer may have to get an itemized lien statement from that provider.

 

Lost Wages – Money you could or should have earned if you were not injured.

 

Permanent Injury – If you are permanently injured, you may need what is called a “Life Care Plan”.  This includes the cost of future medical care, vocational rehabilitation if you cannot return to work and difference in wages from before and current.

 

Ordering medical records and bills takes a few weeks following the completion of treatment.  Lien information can be more difficult to obtain—health insurance providers usually aren’t bad, but Medicare and Medi-Cal can slow the process.

 

We may be able to speed it up if we ask nicely, but it is one big system that most lawyers cannot move, whether they ask nicely or demand it. If you hire us, we will be part of the solution, work as fast as possible, and be honest about where we are at in the process and how long it will take.

NEGOTIATING YOUR PERSONAL INJURY CLAIM

Once the damages investigation is completed, a demand package will be authored on your behalf, which is sent to the responsible insurance company.

 

After the demand package goes out, we usually give the insurance company 30 days to evaluate it and respond. Sometimes we provide less time if we believe your case is obvious and convincing, i.e., easy to evaluate.  We want the adjuster to fairly evaluate your case, so we are thorough when providing information to them, but will not allow them to unfairly delay your claim evaluation.

 

Negotiating your case is dependent on whether we are moving the ball forward.  If there is a clear difference in evaluation of the claim, we will simply discuss filing your case in Court.  This is your choice but one that is made easier when treated unfairly.  If the adjuster is negotiating in good faith, they are given more rope and we will continue negotiating.  The negotiation process lasts for two to three months after the demand letter is sent out, sometimes less and sometimes more.

 

You, as the client, have final approval and authorization over any settlement of your case.

FILING A LAWSUIT (LITIGATION)

If the case does not resolve by negotiation, a lawsuit will be filed  Your lawyer should have a proven track record of success in the courtroom—be very wary of a Personal Injury Lawyer who tells you he was most recently in court a year ago.  Good lawyers try cases regularly and refuse to accept lowball offers from insurance companies.  The specific facts of the case always help us evaluate where and how to file the case.

 

Usually, there are two choices: 1) Limited Jurisdiction or 2) Unlimited Jurisdiction.

SUPERIOR COURT - LIMITED JURISDICTION

Superior Court cases can be tried by a Judge or a Jury.  Limited Jurisdiction are cases that are valued at $25,000.00 and below.  In Limited Jurisdiction, special limitations to discovery apply and for strategic purposes, we may choose this route.  If it turns out later that your case was undervalued, we will file a motion to re-classify the case in Unlimited Jurisdiction.

SUPERIOR COURT - UNLIMITED JURISDICTION

These are cases that are valued in excess of $25,000.00 and there is no limit to what can be awarded.  These cases can be tried as a bench trial or jury trial. Most Unlimited Cases, when filed, get a Case Management Conference Assignment 3-4 months out at which time a trial date is assigned.  When the case is filed, the plaintiff’s lawyer must deliver the court papers to the negligent driver.  Sometimes the addresses are incorrect, or the driver evades service, which can delay things.   Once the papers are delivered, the driver will usually provide them to the insurance company, who will hire a lawyer and must provide an “Answer” to the lawsuit within 30 days of service of the Complaint and Summons.

This is the claims process in a nutshell up to the filing and service of a lawsuit.  In the next section, we describe more in detail what actually occurs while a case is in litigation and goes to trial.

​If you have more specific questions, give us a call at (559) 840-3240 for a free consultation.  This is quite a bit of information to take in, so a face to face meeting often helps because you can ask questions.