Even though our offices have offered Free Initial Case Consultations since 1995, many people are hesitant to contact us to simply see if they have a claim. This post provides insight into ten of the factors we use at the Traffic Accident Law Center to determine not only if someone has a claim but if it a claim they should pursue.
In order to have a claim from a motor vehicle accident or MVA there are three qualifying elements: liability, causation, and damages. Liability means that the collision occurred because someone drove negligently. Liability is easy to assess in some cases, like most rear-end collisions for example, but more difficult in others, such as hit-and-run crashes and lost load collisions. In short, however, if you can identify a person who caused a collision due to driving badly such as being inattentive or distracted, speeding, following too closely, driving while under the influence, driving through a red light or stop sign, or losing control of their vehicle, or simply not stopping in time to avoid hitting the vehicle in front of them, then the element of liability can typically be satisfied. The element of causation pertains to what, if any, damage was a direct result of the collision. There are car crashes every day where people are fortunately not injured. However, for an injury claim to be made, the person making the claim must be injured and that injury must be a direct result of the collision. As one might suspect, the greater the injury then the greater the claims value. The last element of damages pertains to the value of the harm caused by the collision. For example, if someone runs a red light and causes a minor fender-bender without causing any injury, then the damages would likely be limited to the amount of money needed to fix the damage to the vehicle (aka property damage). But, if instead, the collision is with a pedestrian who ends up with a broken leg or a knee that requires surgery to repair, then the "damages" would include money to pay for the medical care (aka medical specials) and money to compensate that person for their injury (aka pain & suffering and bodily injury damages). A person seeking to make a claim, must be able to prove all three of these elements.
Suffice it to say, there are a multitude of factors that go into evaluating a potential claim arising from a car crash. Therefore, the list below is not all-encompassing. Rather, the ten factors below can help someone navigate through an initial assessment of what kind of claim they could have following a crash. As for a disclaimer, this post is no substitute for legal advice and is not meant to be legal advice. Contact a car accident attorney at our firm for legal advice tailored to your situation.
Under California law (CCP §3333.4) a person seeking pain & suffering compensation from a traffic collision must be able to establish proof of insurance as a driver, or proof of insurance for the vehicle they were in at the time of the crash, or that CCP §3333.4 does not apply. This is often factor #1 because it can significantly limit the damages a potential client can pursue from their MVA. Without understanding this limitation, a client can easily over-value their claim. Also, even when this limitation applies, the victim may still have a sizable claim worth pursuing.
The second factor to look at is insurance, again. But this time, the assessment is not if the claimant has proof of insurance but rather what kind of coverage they have, including med-pay, uninsured motorist, under-insured motorist, rental car coverage, etc. Far too often, a potential client will understand that they have "full coverage" only to find out their coverage is insufficient for the damages resulting from the crash. We understand coverages and coverage limits and how they may or may not apply to a specific crash and as a result, we can give potential clients a clearer understanding as to how their insurance will impact their claim.
Are you beginning to see a trend? The third factor to review is the amount of insurance coverage the at-fault driver has. This specific information is frequently unknown we a potential client comes into our office for an initial consultation. However, we can discuss how this information may be obtained as well as what the potential client should do to avoid the problems from the MVA snowballing into a worse - but avoidable - situation. This is especially important in crash involving multiple cars, such as a freeway pile-up, where a misstep can turn out to be very costly for the victim.
Last one - I promise. Since the potential client was injured in the crash, an assessment of their health insurance is an important factor as a failure to do so early on in the claim can prove harmful to the claimant. There all many, many different types of health insurance. What people frequently dont know is that their health insurance policy may give the health insurance company a very hefty interest in their auto accident claim. I have personally seen health insurance policies that took the position that the health insurance company had a superior interest in the auto insurance payment over that of their own insured, the victim. It is a shock to the unwary that the claim they worked on for months or even years ends up going to their health insurance company. That is certainly not the outcome in every case but since it can be in some cases, we think it should be determined very early on.
I bet you thought I was going to write "insurance" ten times. Another critical factor in evaluating an injury claim is an evaluation of the injury itself. The claims value is, in part, derived from how serious the injury was, how long it lasted, how interfering was it, and what treatment was needed. This is where the evaluation often becomes very difficult for individuals, including some lawyers, who do not handle injury claims all the time. Moreover, the insurance companies use their own terminology concerning injury valuation. For some, this is like a foreign language.
We look at the type of treatment, or lack thereof, very closely. Since we have to prove that the injury victim sustained each and every injury included in the claim sustained in the car crash, the potential clients course of care is an important factor. Although it may be reasonable behavior for someone to skip going to the doctor, take over-the-counter medications, stretch, and even attempt their own self-prescribed form of physical therapy for several weeks or months after a crash, in the eyes of most insurance companies that conduct is creating a "gap in treatment" defense. This type of self-provided care and the lets-wait-and-see-if-it-gets-better approach can be a claim killer. Remember, the victim has to prove their injuries. Without documentation, theres no proof. Without a diagnosis, there are only the victims own description of their symptoms and not really an assessment by a health provider of an injury. Moreover, the longer a person waits to go see a doctor after the crash the more time there is for the insurance company to defend the claim by suggesting the victim wasnt injured in the car crash but by something else that happened between the time of the crash and their first visit to the doctor. Of course, if the compensation is based on how bad and interfering the injury was, it only aides the insurance company when someone self-treats because regardless of the victims threshold for pain or the victims aversion to doctors, the defense will always suggest that the injury could not have been too great or very interfering if the person did go to see a doctor right away.
We prefer potential clients to come in for a case evaluation immediately after a car crash. Most do not do this until after their first accident and after learning that a knowledgeable advocate is frequently needed in order to get treated fairly by the at-fault drivers insurance company. Regardless, sometimes individuals do not come in to see us until after they have been discharged from healthcare. While that is not a problem in an of itself, it is often an incomplete situation that requires further attention. When an injury claim is settled, the victim almost always has to sign a contract with the insurance company called a release which includes a promise that the victim cant and wont come back for additional money even if new injuries arise or further treatment is needed. Since the victim only gets one shot, so to speak, we need to determine whether a future injury symptom is likely or whether future healthcare will be needed.
Many times a persons injuries from a car crash fully resolve however that is not always the case. When someones injuries get better but not fully better, the remaining injury is referred to as a residual injury. This is easy to understand in the context of a burn victim who had claims arising from the burn but also has claims arising from the residual scaring. Post-surgical scar tissue is frequently a problem for our clients. Whether that scar tissue is superficial or subdermal, it needs to be assessed by a qualified medical professional. This is also the case when the victim has other residuals, such as a weight limit restriction on how much they can lift.
In additional to evaluating the damages arising from someones medical bills, the evaluation of their loss of income claim is also initiated at the initial consultation. For high income victims, this damage may ultimately be more valuable than their injury claim. But again, it needs to be handled correctly and appropriately documented. After an accident, a person cannot simply sit on the coach and think that the at-fault driver is responsible for any and all income they are losing. So not only do we provide an assessment of this factor of damages, we also initiate how to document it.
Fault for some car crashes can be difficult to prove and when the victim is seriously injured or hospitalized, compiling evidence of the at-fault drivers liability can be hampered. In the initial consultation, we can assess how liability will likely be contested and what evidence needs to be preserved or obtained in order for our client to have their best chance of proving liability. Recently I handled a case where our client was put into the hospital by a driver that struck the side of her vehicle when she was making a left turn. Typically, liability is placed on the person making the left turn because the vehicle code indicates that a driver cannot initiate a lift turn in front of oncoming vehicles unless it is safe to do so. Obviously if there was a collision, it probably wasnt safe to do so. But we were able to determine from witness reports that when our client turned, the oncoming vehicle was very far away and also speeding very, very fast. We were able to secure affidavits from these witnesses before they were contacted or tainted by insurance representatives while our client focused on healing and getting out of the hospital. Had she waited, an important witness could have moved away, died, or been deployed.
While the ten factors discussed previously go into our initial assessment of a potential clients case, the initial consultation also allows us to caution a car crash victim concerning common pitfalls to avoid. While pitfall avoidance may not be a factor for evaluating a claim, it is important to mention here for anyone thinking about scheduling a free initial consultation. Learning what not to do right after an accident can have a profound impact on how the claim turns out or how much that victim puts in their pocket after the claim is over. One of the biggest pitfalls is delayed treatment, discussed above. But, there are many others and some of those only arise in particular circumstances. Should the injury victim treat through the military if they can? Should they get care a Kaiser if they can? Should they use the Medicare or Medi-cal coverage if they can? The answer to these scenarios and many, many others is it depends. But learning the individual circumstances and considering how those circumstance relate to the particular scenarios facing the client allow us to educate him or her on how to avoid a variety of pitfalls that might arise.
Obviously, we believe that an injury victim should get a free initial consultation with us immediately after a crash. In fact, it is not unusual for the victims family or friends to have us come to the victims hospital bedside to provide answers and ease worries. Since this post is not an exhaustive list of all the factors that we consider, if it brought up one factor that you did not consider, then why wouldnt you schedule an initial consultation with us right away?
co-founder of Traffic Accident Law Center
Gnau & Tamez Law Group, LLP
Offices in San Diego, Vista, Chula Vista, and Murrieta, California
Choosing an attorney is an important decision and requires in depth consideration. It should not be based on advertising, internet posts, or other commercialized publications. This post was not meant to be legal advice and should not be construed as legal advice. To form an attorney-client relationship, a client must always sign a retainer agreement with our firm. Simply wanting to hire us and contacting us will not form an attorney-client relationship. Only licensed to practice law in California and can only represent claims brought in California therefore this post only describes factors related to California law and may have no value in any other jurisdiction. This post was written March 2019 and may not be accurate thereafter due to changes in law and insurance procedures. Contact an attorney to validate content before taking any action or inaction thereon. Injury claims are limited by the applicable California Statute of Limitation which for car accidents is within two years of the date of the collision however if the collision involves a governmental entity then an applicable government claims statute likely requires the claim to be made within six months of the collision and before any lawsuit can be filed. After the expiration of the Statute of Limitations a claim is "time barred" meaning that the victim cannot obtain a recovery. As to case specific content or past recoveries obtained for past clients, this post is not an indication that the same or similar result can be obtain in future matters or obtainable in other cases. Outcomes of past client matters is to provide context from past experience and not to provide any perception of any type of guarantee.
About the Author:
Steve Gnau is an attorney in California that represents clients throughout the state. After obtaining his license to practice law in California in 1995, he established his own law practice which has grown to include multiple locations throughout Southern California. Steve Gnau has received multiple awards and accolades, including a Trial Attorney Award from the Consumer Attorneys of San Diego in 2011. In addition to representing thousands of injury victims since the inception of his practice, Steve has also been retained to defend claims for the insurance industry and to audit claims which has provided insight into a variety of claim handling procedures.