As discussed above, it is important to seek immediate treatment for any injuries you have sustained through the emergency room or urgent care. For those injuries that are less severe, you should schedule a visit with your primary care physician to help coordinate your care. If you are without health insurance, then you may want to locate providers who will operate under an LOP (discussed above). A good resource for providers who can operate under an LOP is a local attorney.
You should also be in contact with your insurance company and the other driver’s insurance company. At this point, you simply need to set up the claim. It is possible in the first week that your property damage claim will start to be processed.
In the second week, the uniform crash report should be available from the police officer unless it is a wreck the police are still investigating. The responding officer should tell you where to obtain the crash report. To assist in moving the claim forward, it is important to get the crash report and immediately provide it to your and the negligent driver’s insurance company. The report will help everyone involved understand what happened.
It is likely that the insurance company will begin requesting your statement regarding what happened and ask you to execute a health release. It is my office’s position that statements can be provided if the facts of the case are unclear. We never provide a health release because we typically will provide the insurer with all the relevant medical records when we make a demand. You do have a duty to cooperate with your insurance carrier, and it is important to comply with those duties.
Also by the second week, you should continue to determine what (if any) medical treatment you may need for your injuries. It is important to follow your provider’s’ recommendations concerning treatment.
COMPLETION OF TREATMENT (2 WEEKS TO A YEAR OR MORE): DEMAND LETTER
On the injury side of your claim, you should not seek any money for your claim until you have completed treatment and you have reached maximum medical improvement. If you attempt to settle your claim early without knowing the full extent of your injuries, you may not be fully compensated for your injuries. For example, a sore shoulder may turn out to be a torn rotator cuff that will require surgery. If you settled without the knowledge of the operation, then all the medical billing related to that surgery will not be considered in your settlement.
Once you have completed all of your recommended treatment or have reached maximum medical improvement, then you may want to pursue a recovery for your personal injury claim. To do so, you need to write a demand letter to the negligent driver’s insurance company and/or your insurance company if you have uninsured/underinsured motorist protection (see below). The demand letter needs to outline your injuries including all medical expenses incurred and document how the injury has affected your life. The demand also needs to contain all of your medical records and billing from your medical providers. Finally, the demand needs to identify the amount of money you are seeking for your injuries. The demand should have a time limit for the insurance carrier to respond.
A good lawyer can typically draft an effective demand letter that will result in a much higher settlement offer than a person who is unrepresented.
30 DAYS TO 90 DAYS AFTER DEMAND LETTER IS SENT: PRE- LITIGATION NEGOTIATIONS AND POTENTIAL SETTLEMENT:
After the demand letter is sent, then the insurance company will assess the value of the claim and provide you with an offer for your damages. Typically, this offer is going to much lower than your demand. This is particularly true if an attorney does not represent you. From this point on you can attempt to negotiate with the adjuster and explain why you believe you are entitled to the money you demanded.
If You Agree on an Amount:
The Plaintiff signs a release of claims for a settlement check. If the negligent party only has minimum policy limits and the insurance company has offered you policy limits, then you must obtain approval from your uninsured/underinsured motorist carrier before settling. If you do not have their written consent, then that may bar your claim for underinsured motorist coverage. Further, you must make sure that the negligent party does not have any other insurance policies or significant assets.
If No Settlement: Litigation/Trial:
The Plaintiff may decide that settlement negotiations are proving ineffective and file a lawsuit. If you have not already done so, you likely need to hire an attorney to file a lawsuit properly.
Filing of Lawsuit:
If pre-suit negotiations fail, then a lawsuit must be filed. Again, it is nearly impossible for a pro se party to file their lawsuit and they should hire an attorney. Once the lawsuit is filed, the negligent party must file an answer within 30 days (unless an extension is provided).
6 MONTHS TO 2 YEARS: MEDIATION; PRE-TRIAL DISCOVERY AND TRIAL PREPARATION:
After a lawsuit has been filed, discovery begins. Discovery is the process where all the parties seek information related to the wreck and the injuries sustained. The lawyers will often take depositions of the witnesses in the case to understand how the wreck occurred and the extent of damages. Experts can and are often hired to determine various aspects of the case.
Typically, the Court will also order the parties to mediate. Mediation is a formal settlement process where all the parties attempt to settle the case (usually the adjuster for the Defendant), and their attorneys are present. An experienced, neutral lawyer acts as a mediator to take offers back and forth between the two parties. This is often the best chance a case has to resolve before trial.
1 ½ TO 3 YEARS OUT FROM THE FILING OF THE COMPLAINT: TRIAL
Assuming that no settlement has yet been reached the parties, the case will be tried before a judge or a jury to procure a final finding of fault and allocation of damages. Although at the ending the case, one party may attempt a post-judgment appeal.
Up Next: Understanding Your Insurance Policy (Chapter Six)