Getting Your Claim Started

Personal injury claims must be brought within a specific period of time following the accident.  This is called the statute of limitations (from the previous page) and it varies for each state.  If you miss this window, there is very little that can be done by you or an attorney.

It is imperative that you take comprehensive notes following an accident.  Get organized by creating a file specifically for your case.  Since memories can fade, getting these details down in writing is extremely important.  This will be powerful support when litigating your case.  Your notes should contain the details of the accident, the injuries you suffered and their effect of your daily life.  You may want to document how you feel each day and if you have experienced pain, loss of mobility, sleeplessness, anxiety or depression. 

Your file should include police reports, hospital bills and medical reports from doctors, photos, vehicular repair estimates, and any written communications to and from your insurance company and the defendant’s insurance company.

Notify the Insurance Company

You should immediately notify all insurance carriers.  In the case of an automobile accident, you need to inform both your insurance company and that of the other party of your intent to file a personal injury claim.

Physical Evidence

Physical evidence can act as proof in determining liability.  It may also provide insight into the degree of your injuries.  At the scene of the accident, there are many details you need to capture.  These might include weather conditions, road and traffic conditions, the speed and direction you were traveling at.  Make sure to preserve all physical evidence such as bloody clothes or items that were damaged in the crash, such as a laptop computer or cell phone, both of which are expensive to replace.

Photos

Pictures can be extremely useful in proving your case.  After the accident occurs, and if you are able, take pictures of everything that will help to establish what happened.  These can include skid marks, weather and road conditions, damage to your vehicle and any other vehicles involved in the collision.  If you aren’t able to take pictures at the scene, you may want to return a few days later to do this.  Pictures should be taken from a variety of viewpoints and during the same time of day that the events occurred in order to recreate the scene as realistically as possible.

It’s also important to take photos of your injuries which may includes cuts, bruises, marks and swelling.  If you are hospitalized, have someone take pictures of you showing the extent of your injuries.

Determine Who is Responsible

Nearly every accident is somebody’s fault due to negligence or carelessness.  Determining liability is a way to establish who is legally responsible.  It may depend on the facts leading up to the accident.  If an employee was running an errand for an employer and got into an accident, the employer may be held liable.  Each state has numerous statutes and code, which establish the standard of care an individual is held to.  The code of conduct for vehicles is commonly referred to as “The Rules of the Road”. If the driver violated a statue or law, this may determine who is at fault.

When there is more than one person responsible for an accident, the law in most states provides that any one of the parties is responsible.  This can be advantageous in certain situations where one of the liable individuals is insured and the other is not.  You can choose to make your claim against the insure person for the full amount.

What if the Government is Involved? Tort Claim Acts

If your personal injury case involves a claim against the local, state or federal government, or an employee of the government, you will need to follow strict guidelines and procedures when bringing a lawsuit.  Most governments have enacted laws, which contain rules for filing claims against them.  These are called “Tort Claims Acts”.

The Federal Tort Claims Acts is the statute by which the United States authorized tort suits to be brought against itself.  This makes the government liable for injuries caused by negligent or wrongful acts or omissions of any government employee while acting within the scope of his office or employment. 

There are three major exceptions:

  • The Feres doctrine, which prohibits suits by military personnel for injuries sustained during service
  • The discretionary function, which immunizes the United States for acts or omissions of employees involved in policy decisions
  • The intentional tort exception, which precludes suits against the U.S. for assault and battery, false imprisonment, false arrest, malicious prosecution, or abuse of process, unless they are committed by federal law enforcement or investigative officials.

Before an action can be filed under the Federal Tort Claims Act, an administrative claim must be presented to the government agency employing the person whose act or omission caused the injury.  After an administrative claim is presented to the appropriate agency, they have six months to either admit or deny the claim.

Notice of Claim

The first thing you need to do is file a “notice of claim” within 60 days following your injury.  If you fail to file within that time period, you will most likely be ineligible to obtain compensation for your injuries.  The government then has the opportunity to respond to the notice before suit is filed.  The claim will be either accepted or denied.  If you receive a denial of your claim, you may still file a lawsuit in an attempt to hold the government liable through the civil court process.

Decide if You Need legal help

When your injuries are minor and require only minimal treatment, your damages may not be worth an attorney’s time.  Most personal injury attorneys work on a contingency basis.  The amount they get paid is based on how much they are able to obtain for your case.

If your personal injury suit involves several parties, complex legal issues, severe or permanent injuries, product liability or a claim against the government, it’s probably best to seek legal representation.

Contact the Other Parties Insurance Company

When your personal injury case involves another party and they are insured, you need to contact their insurance company in addition to your own.  Be extremely careful as to what information you give them as everything can be used against you at a later date.

Written Communications

Whenever you are involved in any legal process, it’s best to have documentation that may be used in court or during the mediation process.  However, you should only give written statements to the attorney who is representing you.  Never give oral or written statements to the other person’s insurance company.

Start the Claims Process

The most important aspect when filing a personal injury claim is to know the total extent of the injuries involved and the monetary amount that you will be seeking.  The simplest way to settle your dispute is to write a “demand letter”.  This is the centerpiece of the insurance claim negotiation process.  Details should include the following:

  • Extent of your injuries
  • Why the other party is legally responsible
  • Types of medical treatment you received and the amount of money incurred
  • Amount of lost income
  • Other damages that you suffered

The letter should conclude with a demand for payment of a lump sum to settle the entire claim.  When drafting your demand letter, it’s advised to review all of your notes from the days and weeks following the accident.  Along with your demand letter, you should send copies of supporting documents, which may include bills from the doctor or hospital, proof of lost income or any other documentation relevant to your case.  A general rule is to request a sum that is 75% to 100% higher than what you would be satisfied with.  This will give you room to negotiate with the insurance company.  If you have not received a response to your demand letter or the proposed settlement is unacceptable, the next step will be to file a “Summons and Complaint”.

Preparing and Filing A Summons and Complaint

You will need to prepare a summons and complaint that will be filed with the court.  This is a formal document that you or your attorney will file in order to claim your legal rights against the other driver.  Included in this document will be the “Cause of Action” which details the reason you are filing the lawsuit.  A list of damages will need to be itemized which may include; medical bills, lost wages, property loss or damage, loss of future earnings and any other damages that are specific to your case.  After paying a small filing fee, the document is filed with the Clerk of the Court who will assign a case number.  All documents need to be served on the defendant named in the complaint.  The individual who serves the complaint must be over 18 and not a party to the case.  The Sheriff or a licensed process server may be used and they must complete and sign a proof of service.  The proof of service together with the original Summons and Complaint must be filed with the court.

Discovery Process

Once the defendant has been made aware of the fact that they are being sued, both parties begin the discovery process.  This entails requesting documents and information from each other.  This often includes a list of questions, also called “interrogatories”, doctor’s reports, medical records, and any witness testimony also known as “depositions” which is when a witness is questioned under oath.  If you have an attorney handling your case, they most likely will have videotape of these depositions.  This can be a long and complicated process, which could take months or even years depending on the complexity of the case.

Previous Page: Types of Personal Injuries | Next: Insurance Issues in Personal Injury Claims

 

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