As interaction with individuals, businesses, and products is a part of our everyday lives, it follows that injury can result from the negligence of others. It is important to understand that not all problems can be attributed to the “fault” of another; we all must be cognizant of the inherent risks of everything we do. However, injury, illness, or financial loss can often be attributed to the action or inaction of another, and the legal system provides remedies for those who have incurred loss.
A very old legal maxim requires that “Those who seek equity (justice) must come to Court with clean hands and a pure heart.” Until one is personally injured in a collision or negatively affected by medical services received, it may be tempting to rely on urban legends such “whip lash” and “sponges left in the body” as an attempt for unwarranted recovery. And it is unfortunate that some do take advantage of insurance companies by making fraudulent or exaggerated claims, as this makes the world all the more skeptical of even those with legitimate damages.
Bush & Powers seeks to represent people who have real injuries and real losses. It is selective in accepting cases for representation, wanting to help hurt people through difficult times.
The nuances of a medical malpractice claim can be very complicated, and there are also so many levels of treatment and care to be considered that it would be futile to write about a “standard” claim in this area. The same can be said for non-automobile injury claims. Automobile accidents, while there is a great deal of variance from one to another, at the very least involve cars and the people driving them. In this, there are some things to consider when one is involved in a collision.
One of the most important aspects of a case from a legal perspective is determining whether or not there is insurance coverage. Thereafter, additional inquiry must be made as to the level of coverage, exemptions, “stacking” or multiple levels of coverage, “Med Pay,” and other related issues. Frankly, it can be complicated.
Much of the information herein assumes liability (insurance) coverage is available. We strongly encourage potential clients to consult with an attorney, as important legal rights and Statutes of Limitation may apply.
Claims may be made on individuals or self-insured organizations; yet, the vast majority of Bush & Powers clients seek redress under the “At Fault Driver’s” policy, or under an “Un-Insured Motorist” (UM) / Under-Insured Motorist (UIM) policy. Furthermore, there may be coverage available under an “Umbrella Policy,” Household Insurance, or Employer’s Insurance.
A cautious word of advice is in order: Do NOT assume there is either coverage or no coverage. The most appropriate course of action is to independently research and confirm the existence and extent of insurance.
In making a claim in North Carolina after an automobile collision, there are four primary things the injured party must prove:
1. That the “At Fault Driver” owed some level of duty or responsibility to the other drivers on the road. That can be as obvious as NOT driving drunk. It can also be as simple as maintaining a car so as to avoid the collision in the first place. It may also require anticipation of traffic conditions, the need to slow down when appropriate, following posted signs, or refraining from tailgating.
2. That the “At Fault Driver” failed in his or her duty, either through action or inaction. There are rights and privileges associated with driving a vehicle, in addition to tremendous responsibilities. Indeed, a collision may be termed “accidental,” but that does not eliminate the duty to be careful.
3. That because the “At Fault Driver” failed in his or her duty to be reasonable, cautious, and to drive in a safe manner, the Injured Party was injured, be it physically, emotionally, or financially.
4. That such injuries or “damages” were directly and proximately related to the negligence of the “At Fault Driver” and NOT caused by the Injured Party’s “Contributory Negligence.”
“What to Do First”
SEEK IMMEDIATE MEDICAL TREATMENT FOR INJURIES. If medical assistance is delayed, it may be argued that the cause of one’s injuries was something that occurred between the time of the accident and the time the injured party first sought treatment. That “delay in treatment” can have devastating affects one’s ability to recover.
1. Follow the advice of the health care professionals who treat your injuries. If directed to refrain from work, be sure to ask that the instruction be put in writing, and keep a copy for yourself.
2. Be honest with the treating medical personnel. Overstating injuries is not appropriate, nor is failing to express how badly one hurts.
3. If treatment is not proceeding to your satisfaction, seek alternate care. Early, consistent medical care is always appropriate. Similarly, do not assume that the pain will “go away;” by doing so, you open the door to the classic defense that the injuries occurred subsequent to the collision.
4. Take pictures and start a diary. Photographs of the scene, damage to your vehicle, and visible injuries can be very valuable in determining how much you are entitled to recover. More, start a diary in which you record daily inconveniences caused by the accident, such as aches and pains, loss of use of your vehicle, time spent away from your job, and activities that your injuries are preventing you from enjoying.
5. Report the accident to your insurance company AND to the insurance company of the “At-Fault Driver” (if there is insurance). DO NOT GIVE A RECORDED STATEMENT, as is it not required by law. DO COOPERATE in the investigation, however, and contact legal counsel with any questions or concerns. Insurance adjusters are trained professionals who begin to work immediately to limit the amount of money their employer – the insurance companies – will disburse. Your statement will almost always be used against you in an effort to limit what the insurance company will ultimately pay you.
6. Be prepared to go without a vehicle until the insurance company’s investigation is complete. If you need a rental vehicle immediately, you may pay for the rental yourself or check with your own insurance company to determine if your policy provides rental coverage. An insurance company is not required to pay for your vehicle damage or a rental vehicle until they have had time to investigate the accident.
7. Contact an experienced attorney. Above and beyond determining whether one has a legitimate claim for recovery, legal counsel can be of assistance in requesting proper documentation from medical personnel, communicating with the applicable insurance companies, gathering medical evidence, ascertaining out-of-pocket expenses, compiling lost wage information, and collecting other relevant materials.