WHAT YOU MUST PROVE TO WIN A PERSONAL INJURY CASE

A number of things must be proved at trial to win a personal injury case. Although most cases are settled before trial, it is important to muster the evidence needed to demonstrate to the insurance adjuster the fact that your case will be a winner at trial if the case is not settled

EVERYTHING STARTS WITH PROVING NEGLIGENCE.

To begin with, you must prove that someone’s carelessness (negligence) caused your injury. In the case of motor vehicle accidents, that can be demonstrated by showing that the other driver violated the rules of the road. In other cases, it can be proved by showing that someone acted in a careless manner in a situation where he or she had a duty to act with prudence and care.

YOU MUST ALSO PROVE PROXIMATE CAUSE.

If you cannot prove negligence, you will lose. You will also lose if you prove negligence but cannot prove that the negligence was the cause of your injuries. For example, if the other driver was driving while intoxicated, but the accident was caused because you went through a stop sign, then the driver’s intoxication was not the cause of the accident.

YOU MUST SUE THE RIGHT PERSON OR CORPORATION.

If you sue the wrong person or corporation, you will lose. If you wait too long to sue, you will lose. The path to winning is narrow, but the road to losing is very wide.

To protect your right to financial compensation after an auto crash or some other type of injury, you should consult with an experienced personal injury attorney as soon as possible.

WHAT IS A PERSONAL INJURY CASE?

When lawyers say they handle “personal injury,” “wrongful death,” “auto accident,” or “serious accident” cases, what are they talking about? Well, here are the basics.

THE BASICS

All of these claims are cases where someone has been injured or killed due to someone else’s negligence (carelessness). These injuries can give rise to a claim for money damages for past and future medical bills, past and future wage loss, and past and future pain and suffering. If the only damage in your case is that your car was damaged, then you don’t have a personal injury case – but you may have a property damage case.

WRONGFUL DEATH CASES

If someone else’s negligence results in death, this accident can give rise to a wrongful death claim. State laws differ as to which relatives of the deceased can obtain damages for a wrongful death case. You should consult an attorney familiar with Idaho law or Washington State law on this subject, depending on where the crash occurred.

CRITICAL TIME LIMITS

Every type of personal injury case is governed by a statute of limitations. This means that, if a lawsuit is not filed within a certain time frame, the claim is forever barred. Washington and Idaho have differing statutes of limitations. Also, in Idaho, if the negligence was committed by a government agency, you must first file an administrative tort claim within 180 days of the injury, or you lose the right to sue even before the statute of limitations has run.

GET PROMPT LEGAL ADVICE FROM AN EXPERIENCED PERSONAL INJURY ATTORNEY

If you have been seriously injured due to someone’s negligence, you should consult with an experienced personal injury attorney as soon as possible, so you don’t lose any of your rights to recover monetary damages.

THE INSURANCE CLAIMS ADJUSTER IS NOT YOUR FRIEND

It is unfortunately true that many claims adjusters take advantage of

injured people before they have a chance to speak with an attorney.

Some adjusters will try to scare you by telling you that an attorney

will take a portion of your recovery for just a brief consultation. Some

claims adjusters will put unreasonable time pressure on your settle-

ment decision.

NOT ALL ARE BAD APPLES

Now, let me be clear that there are many honorable people in the

claims industry. For over sixteen years I worked almost exclusively as

an attorney for insurance companies, and I came to know many fine

claims reps who were totally honest, solid professionals.

THE CLAIMS ADJUSTER PUTS THE INSURANCE COMPANY’S INTEREST FIRST

Nevertheless, claims adjusters are not paid to be your friend. They are

paid to work for the insurance company’s interest, which may or may

not coincide with your best interests. Adjusters get promoted for closing files,

not for giving injured people personalized treatment.  Here

are some tactics I have seen insurance companies use to push you to

prematurely settle a claim at less than full dollar value:

  1. Adjuster of the week program. Here, it seems

every time you call the insurance company you are directed to a

different person, who then asks you to repeat information given

to previous adjusters. [Related problem – the endless voice mail

menu.]

  1. Stalling. If you’re injured and out of work, the insurance

company knows that you may be desperate for a quick settlement,

even if below fair value.

  1. Playing doctor. Insurance adjusters will frequently tell

you that you’ve received too many treatments. Or, they may tell

you that the proof that you are not seriously injured is the fact that

you haven’t been going to the doctor for treatments often enough.

Heads they win, tails you lose.

  1. Bogus discounting. Years ago, a successful class action

was brought against one insurance company that deducted $50

every time they totaled out a car. The company’s theory was that the

value of most cars could be reduced $50 because the cars probably

needed a good washing. The court assessed a multi-million dollar

punitive damage award against the insurance company.

  1. Acting like your friend. Look, the insurance adjuster

may be a fine person, but he or she is not your friend. If he visits

you at your hospital or she comes to your home, these are not social

calls. If you hire an attorney, those visits will stop.

  1. Blaming it on the computer. Many insurance companies use computer programs to calculate how much medical

treatment you deserve and how much of a final settlement should

be paid for your case. Does this approach make sense?  Just ask

yourself whether you would go to a doctor or a computer if you

needed surgery.

In 2010, the Idaho Supreme Court upheld a multimillion-dollar ver-

dict against Prudential Property and Casualty Insurance Company,

based on the way it treated one of its own policy holders. Testimony at

trial showed that the company refused to pay medical bills, under the

uninsured motorist portion of the insurance policy, until the entire

case was settled:

The adjuster who handled the claim in this case from its inception

until June 11, 2004, had worked for the company since May 1975. She

testified that the company had a standard practice for handling UM

claims, that it was the company’s practice not to pay undisputed med-

ical bills from UM coverage until the entire UM claim was settled, and

that to the best of her knowledge she handled this claim in the way the

company wanted it handled. Her supervisor, who had worked for the

company for about twenty-eight years, testified that it was the com-

pany practice not to pay undisputed medical bills under UM coverage

until it settled the total UM claim, even if the insured was incurring

medical bills for two or three years. A third witness had worked for

the company from 1978 until September 2005 and was a UM adjuster

during the time at issue in this case. She handled this claim beginning

in June 2004 and testified that she had reviewed the handling of the

UM claim in this case and it was handled in the way she was trained

to handle claims.

The jury found that Liberty Mutual had breached both the MedPay

and UM provisions of the insurance policy and that it had commit-

ted bad faith in its handling of the UM provision of the insurance

contract.

Weinstein v. Prudential Prop. & Cas. Ins. Co., 149 Idaho 299, 233 P.3d

1221 (2010), reh’g denied (July 1, 2010)

WHAT IS FULL INSURANCE COVERAGE FOR MY CAR OR MOTORCYCLE?

When I have my first meeting with a new personal injury client, one of the first things I do is ask about their insurance coverage and the insurance coverage of the at-fault driver.

THERE IS NO SUCH THING AS FULL COVERAGE

Very often, the clients will say, “don’t worry I have full coverage.” Here’s the problem with this answer.  There is no such thing as “full coverage.” That is a phrase generally used to describe an insurance policy that is higher than the minimum coverage provided by law, but it has no precise meaning.

GETTING ADEQUATE INSURANCE

A better question for clients to ask (before they are in an accident) is “do I have adequate insurance coverage?” Here are the components of a motor vehicle insurance policy.

Liability. This part of the policy will pay for the injury and/or damage you cause if an accident is your fault.  The minimum coverage required under Idaho law and Washington law at the time of this writing (July, 2020) is $25,000. This is a woefully inadequate amount of insurance. Remember, if you inflict damage in excess of your policy limits, your own assets can be seized by the person injured in the accident.

Hospital costs and doctor bills have been rising steadily for decades. Just about any serious accident is going to involve at least $10,000 in medical bills, plus the amount of lost income and an amount to cover pain and suffering. The amount of liability insurance you should buy should be governed by the amount of assets you own. If you are a 19 year old just starting out in life, and do not own a home or have significant savings, it may be okay to purchase $50,000 of liability insurance.

However, if you are an older person, married with children, own your own home and have some savings and two cars, you should seriously consider getting at least $300,000 of liability insurance.

Umbrella Policies. An umbrella policy provides liability over and above the existing insurance that you have. The attractive feature of an umbrella policy is that it acts as excess insurance for your car insurance, your homeowner’s insurance, and any other insurance you have. Moreover, although the initial lawyer of insurance is expensive, umbrella policies are generally priced lower, when considering the amount of additional that you obtain. You get a lot of bang for your buck with an umbrella policy.

PIP Insurance. This is usually optional insurance, but you should always purchase a car insurance policy that includes PIP (Personal Injury Protection)  as part of your policy. PIP pays for the medical bills, up to a certain amount, of any persons who were injured in your car (including you) regardless of the fault of the accident. Moreover, unlike most health insurance, there is no deductible or co-pay with PIP insurance. The amount of PIP coverage can be as low as $3000 or as high as $30,000 or higher.

Comprehensive Insurance. This usually applies to insurance that provides for the repair or replacement of your car or motorcycle after it is damaged in the accident. If you don’t have comprehensive insurance, you will have to rely upon suing the at-fault driver to get your car repaired. If your car is very old, and has little trade in value, you certainly can consider skipping this type of insurance.

Uninsured and Underinsured Motorist Insurance. This insurance is optional, but it is an absolute must. A UIM policy steps into the shoes of the at-fault driver if that driver is uninsured or has an inadequate amount of insurance. For example, if you are seriously injured in an accident, and sustain medical bills and other damages in the amount of $200,000, if the at-fault driver has only the minimum $25,000 of insurance, you will suffer permanent financial loss as a result of the accident. You should purchase UIM in an amount at least equal to the amount of liability insurance that you have.

If you have questions about insurance, don’t hesitate to write or text attorney Jim Bendell

CALCULATING THE VALUE OF PAIN AND SUFFERING IN A PERSON INJURY

Persons injured in Kootenai County or elsewhere in Idaho are entitled to ask the jury for monetary damages for past and future medical bills and past and future loss of income. However, a person injured in a car crash or some other injury caused by the negligence of others, is also entitled to ask that the jury award monetary damages for the pain and suffering caused by the negligence.

THE ELEMENTS OF PAIN AND SUFFERING

The Idaho Supreme Court has approved the following jury instruction for these so-called non-economic damages. The jury is to consider the following in arriving at a monetary amount to compensate the injured person for these damages.

  1. Non-economic damages
  2. The nature of the injuries;
  3. The physical and mental pain and suffering, past and future;
  4. The impairment of abilities to perform usual activities;
  5. The disfigurement caused by the injuries;
  6. The aggravation caused to any preexisting condition.

SKEPTICAL JURIES

Many jurors are skeptical of awarding damages for pain and suffering. However, consider the following scenario.

John Smith is in a car crash, and the only serious injury he sustains is blindness caused by his head going through the windshield. Because he is now permanently bind, he will require no future medical treatment, and his past medical bills may be little more than the initial brief hospitalization while all efforts were made to save his vision.  Assume the hospital bills total $10,000.  It is obvious that it would be an extreme injustice for a jury to award merely $10,000 to an innocent person who is blinded for life due to someone’s negligent driving.

Although this is an extreme example, there are many instances in which the amount of medical bills do not truly reflect the gravity of the permanent injury sustained by a person injured due to someone’s negligence. Careful jurors will give serious and separate consideration to the past and future losses and harms sustained by the victim of someone’s negligence, and will award monetary damages consistent with the gravity of those losses, regardless of the amount of medical bills incurred.

If you have been injured in a car crash or due to some other form of negligence in Idaho or Washington, call or text attorney James Bendell for a free consultation about your case.

QUESTIONS TO ASK THE INSURANCE COMPANY WHO WANTS YOU TO GIVE A RECORDED STATEMENT

Persons injured in car crash in Kootenai County, Spokane, or elsewhere in Idaho and Washington will suddenly be faced with a barrage of decisions to make. One critical decision is whether to give a recorded statement to the insurance companies involved in the crash. An important distinction must be made. You have a contractual duty to speak with the claims adjust for your own insurance company. For example, most insurance policy contain a med-pay provision, which will pay for some amount of your medical bills, regardless of who is at fault for the accident. If you refuse to cooperate with your own insurance company, it may deny your medical benefits.

TWO VERY DIFFERENT INSURANCE POLICIES

By contrast, you have no obligation to speak to the claims adjuster for the other driver’s insurance company, unless the only purpose is to arrange for the repair of your automobile. If you provide a recorded statement to the opposing insurance company concerning your injuries, especially if you are still mentally recovering from the injury, that statement can be used against you if the case ever goes to trial.

PUTTING THE CLAIMS ADJUSTER TO THE TEST

To find out just how providing an interview with the opposing insurance adjuster creates an unfair advantage for the opposing side, ask the adjuster the following questions:

  1. Will you put in writing the fact that the accident was not my fault?
  1. Will you tell me the maximum dollar amount of the insurance policy of the person who caused the accident?
  1. If I give you a recorded statement, will you let me take a recorded statement of the person who caused the accident?
  1. Will you give me a list of all of my friends, neighbors, and employers you have interviewed thus far? Will you agree to supplement that list in the future after each interview?
  1. If I sign a medical release, employment release, or tax release, will you agree to send me a copy of all documents you obtain using those releases?
  1. Will you give me a copy of the recordings you made of any witness interviews?
  1. Will you send me a copy of the insurance policy of the at-fault driver, including a copy of any “umbrella” policies that exist?
  1. Will you agree to provide me copies of any video surveillance of me that your investigators you have conducted, within ten days of date of the surveillance? This also means that you have to provide me with a copy of all videos made up until this date.
  1. Will you provide me with a copy of any background information you have obtained about me from any insurance agency or reporting agencies that produce reports for your company?

If the insurance adjuster agrees to any of these conditions, make sure that the commitment is put in writing.  However, that is unlikely to happen because few, if any, claims adjusters will agree to these conditions.

Before taking any signing any documents or taking any steps involving your injury claim, you should first speak to an experienced personal injury attorney.

WHAT IS AN INDEPENDENT MEDICAL EXAM IN A PERSONAL INJURY CASE?

When a person in Kootenai County, or elsewhere in Idaho, files a personal injury lawsuit, the attorney hired by the defendant’s insurance company is usually permitted to have a doctor conduct an “independent” medical exam of the injured plaintiff. I place the word independent in quotation marks because a more accurate term would be “defense medical exam.”

In theory, because the degree of injury and disability is usually disputed in a personal injury case, the Court Rules allow the defense to have a doctor of its own choosing perform an examination of the plaintiff. With some exceptions, these examinations are not ‘independent’ in any meaningful sense. These exams are generally conducted by doctors who earn hundreds of thousands of dollars performing exams and then writing reports which state that the plaintiff has either:

  1. Not been seriously injured in the auto accident, or
  2. If suffering from a serious injury, it is usually due to a pre-existing condition, or
  3. The plaintiff has failed to follow his physician’s instructions and has therefore failed to “mitigate his damages.” That is, the patient’s physician condition would be much better if he had followed his physician’s instructions to get well.

 SOME DIRTY TRICKS USED BY DOCTORS IN DEFENSE MEDICAL EXAMS:

  1. The doctor may purposely drop something on the floor, hoping that the plaintiff will pick it up, and the doctor will write a note that the patient has no limitations on back movement or agility.
  1. The doctor will watch the patient take off and put on his jacket before entering the examination room, and will base diagnostic conclusions on this activity even though the doctor spends only ten minutes actually clinically examining the patient.
  1. The doctor will improperly question the patient about lifestyle choices such as smoking or alcohol consumption, questions that should be asked by the attorneys in formal discovery, not in a medical exam.
  1. The doctor may perform a test in more than one way, in order to try to produce an inconsistent result. For example, the doctor may test your legs when you are sitting up and when you are lying down. Although this is the same test, your response when asked about the pain it produced, may be slightly different, thus empowering the doctor to label you as a liar or malingerer in his report.

THE BOTTOM-LINE ADVICE FOR PLAINTIFFS GOING TO A DEFENSE MEDICAL EXAM.

  1. Always tell the truth.
  1. Be on the lookout for physician tricks designed to make you appear as a liar.
  1. Do not answer any questions except the most basic questions about your pain and disability.

WILL IDAHO JUDGES MAKE THE LOSING SIDE PAY THE ATTORNEY FEES OF THE PARTY WHO PREVAILS IN A LAWSUIT?

In England, the loser of a lawsuit must pay the attorney fees of the winning party.

In Kootenai County and elsewhere in Idaho, the Courts require each party to pay their own attorney fees. Thus, these two systems have become known as the English Rule and the American Rule.

POINTLESS LITIGATION

The American Rule poses a real dilemma for persons who have been wronged or sustained damages in a relatively small amount. For example, assume you loaned a friend $3000 but he has failed to repay the loan. Hiring a lawyer to sue that person and bring him to trial would eat up most or all of the $3000, thus making the litigation fruitless.

EXCEPTIONS TO THE RULE

Fortunately, Idaho has some statutes that do allow a judge to award attorney fees to the prevailing party in a lawsuit. Here are some examples:

  1. The Consumer Protection Act. Idaho statute 48-603 prohibits businesses from engaging in unfair and deceptive practices. If a person files a lawsuit under that act, and prevails at trial, the judge will award her the attorney fees she incurred, in addition to the damages sought in the underlying action.
  1. The Landlord Tenant law. If a tenant is wrongly evicted, or if a landlord is forced to go to court to evict a tenant not paying his rent, the judge will award the attorney fees incurred by the prevailing party.
  1. The Catch-All Attorney Fee Law. If you believe that you have sustained damages in an amount less than $35,000, you can be awarded attorney fees if you prevail at trial under the following conditions. Prior to filing suit, you must send a written settlement demand to the opposing party. If that party does not pay you that amount within 10 days, and you go to trial and win a money judgment, the Court will order the losing party to pay your attorney fees provided that, at trial, you recover at least 95% of the amount you asked for in your demand letter.

There are other Idaho and Federal statutes that provide for an award of attorney fees to the winning party. Consult with an experienced trial attorney to see if your case falls within one of these categories.

SHOULD ONE ATTORNEY REPRESENT BOTH PERSONS FORMING A NEW BUSINESS?

In Kootenai County, and elsewhere in Idaho, it is not uncommon for persons seeking to form a new corporation or Limited Liability Company to seek the services of a single attorney in drafting the documents needed to form the new business. Is this a good idea?

THE BARE MINIMUM

The Idaho Code of Professional Responsibility, which spells out the ethical standards to be followed by attorneys, contains the following language in its commentary section regarding conflicts of interest governed by Rule 1.7:

For example, a lawyer may not represent multiple parties to a negotiation whose interests are fundamentally antagonistic to each other, but common representation is permissible where the clients are generally aligned in interest even though there is some difference in interest among them. Thus, a lawyer may seek to establish or adjust a relationship between clients on an amicable and mutually advantageous basis; for example, in helping to organize a business in which two or more clients are entrepreneurs, working out the financial reorganization of an enterprise in which two or more clients have an interest or arranging a property distribution in settlement of an estate. The lawyer seeks to resolve potentially adverse interests by developing the parties’ mutual interests. Otherwise, each party might have to obtain separate representation, with the possibility of incurring additional cost, complication or even litigation. Given these and other relevant factors, the clients may prefer that the lawyer act for all of them.

BUT IS IT A GOOD IDEA?

Okay, this means that it is not always unethical for a single attorney to represent two or more persons who wish to form a business. But that does not answer the bigger question; namely, is it a good idea?

For example, assume John Smith and Mary Brown wish to form a new business which will sell garden supplies. Mary Brown is relatively wealthy, whereas John Smith has had a number of recent financial troubles. In the early years of a new business, it is often necessary for the owners to contribute capital to keep the business afloat until it starts earning a profit. In drafting the articles of incorporation or creating the LLC, a decision must be made about the obligation of the owners to contribute funds in the event the new business needs an influx of cash.

In this example, an attorney is torn between drafting language that requires significant capital contributions and language that does not. John Smith may simply not have the funds to pour into the new business until it reaches profit-making status.  It is for this reasons that it may be more prudent for the attorney drafting the documents to represent only one client, and the other client can have those documents reviewed by a separate attorney.

ONE OF THE MOST COMMON MOTORCYCLE ACCIDENTS

Recently I handled a Kootenai County motorcycle death case which involved one of the most common types of motorcycle accidents; namely, when a car turns left in front of a person driving the motorcycle. The general category of the cause of the crash is that the car driver is looking for the absence of cars, not the presence of motorcycles. In other words, his mental radar is tuned only for cars, not motorcycles.

There can be several causes of this inattention – distraction, blind spots or the psychology of the driver.

HOW TO AVOID THESE CRASHES

The motorcycle driver must be continually on the lookout for this careless driving on the part of automobile operators. The motorcycle driver may have the right of way at a stop sign, but being legally in the right will not prevent a potentially catastrophic injury. Pay special attention to a car that is stopped at an intersection waiting to turn. It might be best to slow down and be prepared to apply your brakes in an instant.

A gap in traffic may also be a warning that an automobile will soon be turning without observing your motorcycle.  The presence of trees and shrubs can also impede the visibility of your motorcycle, and thereby make a crash more likely.

Pat attention to the automobile’s wheels even more than the automobile. The position of the wheels will telegraph what the driver’s next step may be.

WHAT NOT TO DO

The worst thing that a biker can do is quickly speed up in the hope of avoiding a collision. The is a gamble in which the losing vehicle will pay a high price in terms of vehicle damage and, in the case of a motorcyclist, may result in serious injury or even death.