FREQUENTLY ASKED QUESTIONS ABOUT AUTO ACCIDENT CASES
If you have been injured in an auto accident, you probably have
a lot of questions about what to expect. Do you need a lawyer to
represent you on your claim? How much is your case worth? How long
does it take to reach a settlement? What can you do about your doctor
bills, car repair bills and lost wages in the meantime? Will you
have to go to trial to get the insurance company to pay? What follows
are answers to some of the most commonly asked questions about automobile
accident cases involving a personal injury.
DO I NEED AN ATTORNEY?
Every accident victim should consult with an attorney. While not
every claim requires an attorney, insurance law is complex. The
insurance companies know about the legal issues which govern claims,
and they know what evidence is required to prove causation and damages.
Insurance companies will be on the lookout early on for facts that
might limit the damages they have to pay, or get them off the hook
from paying completely. Before you talk to an adjuster at all, you
should first consult with an attorney. You can consult with one
of our attorneys for free. We can explain the process to you and
help you decide if you need an attorney.
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CAN I AFFORD AN ATTORNEY?
Absolutely! We structure our fee on a “contingency”
basis. This means that we do not charge any money up front. Once
your case is settled and the insurance company or adverse party
pays damages, we collect the standard 1/3 (33 1/3 %) plus costs
from the settlement. “Costs” include the costs of developing
the case, such as costs for medical records, police reports, accident
scene photographs, court filing fees, investigators and expert witnesses.
We pay costs out of our own pocket at no up front expense to you,
and get reimbursed for those costs from the settlement. We do not
collect a fee at all unless we get money for you.
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WHAT SHOULD I DO IF AN INSURANCE ADJUSTER
CALLS ME?
The insurance adjuster will want to take your statement. The insurance
adjuster is hoping that you will say things that either seem to
decrease the value of your damages or seem to make you partly at
fault for the accident. The insurance adjuster is at an unfair advantage
because he knows the law and knows what answers he is looking for.
The insurance adjuster might ask the same question in different
ways to see if he can get you to give inconsistent answers.
Once you hire an attorney, the insurance adjuster is no longer
allowed to contact you directly. As soon as we are retained, we
will send a letter of representation to the insurance company letting
them know you are represented by the law firm of Yanez | McGee |
Kuhner. You should not hear from the adjuster again after that.
Occasionally an insurance company will want to take a statement
before they make a settlement offer. If the insurance company wants
to take your statement, we will meet with you beforehand and discuss
the questions the adjuster will ask, so there will be no surprises.
Although your answers must be truthful, we will help make sure you
know how to describe your case in the best possible light to maximize
the value of your settlement. You can make your statement in the
comfort of our office with one of our attorneys present to help
guide you through the process. You should never discuss your case
with the adverse party’s insurance company without your attorney!
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HOW WILL MY MEDICAL BILLS BE PAID WHILE
MY CLAIM IS PENDING?
If your own auto liability policy or the policy covering the vehicle
you were driving or riding in has “PIP” coverage (“personal
injury protection”), that policy will pay your medicals bills
up to the amount of coverage. PIP protection often covers medical
expenses up to $2500 per injured person.
If you are personally covered by health insurance, you can submit
your claims to your own health insurance provider. Your health insurance
will pay your bills subject to any deductible or co-pay. You health
insurance plan will be entitled to re-imbursement from your settlement
with the other driver’s insurance. This right to reimbursement
is referred to as “subrogation.”
If you are not covered by health insurance or PIP coverage, or
if you do not wish to submit the claim to your own insurance, many
doctors will treat you in with a “letter of protection”
from your attorney. The letter of protection tells the doctor that
he will be reimbursed from the settlement proceeds from your insurance
claim. Many doctors will treat you at no up front cost in exchange
for a letter of protection from your lawyer. If you do not have
a way to pay for medical treatment for your injuries, our law firm
can help you find a doctor that will give you quality treatment
under a letter of protection from our office.
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HOW DO I GET MY CAR FIXED?
If the adverse party’s insurer accepts liability early on
– in other words, if they are willing to admit that their
driver was at fault in the accident, then they will pay for your
vehicle immediately, before they settle your bodily injury claim.
If the adverse party’s insurer is not willing to admit liability,
or only admits partial liability, you may not get money to fix your
car right away. The insurance company may settle the property damage
claim along with the bodily injury claim later, after you have finished
treating for your injuries.
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HOW CAN I GET MONEY TO FIX MY CAR IN THE
MEANTIME?
You can claim your vehicle damage on your own car insurance policy
if you have “comprehensive” coverage. Your insurance
will be entitled to “subrogation”, or reimbursement,
from the proceeds of your settlement with the other driver’s
insurance.
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HOW MUCH MONEY WILL INSURANCE PAY FOR MY
CAR?
If your car can be fixed, the insurance company will pay for the
cost of the repairs, plus towing storage and a rental car allowance.
If the estimate to repair your car exceeds the fair market value
of your car (often determined by Kelly Blue Book), the insurance
company will consider your car “totaled”. The insurance
company will pay you the fair market value and will keep your totaled
car to sell for salvage.
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WHAT IF I OWE MORE ON MY CAR THAN THE INSURANCE
COMPANY WANTS TO PAY?
If you are “upside down” on your car note – in
other words if you owe more than the fair market value of your car,
the insurance company is not obligated to pay the balance of your
note. If your car title has a lien from your auto finance company,
the insurance company will pay the value of the car directly to
the lien holder, and you will still owe whatever is left over. To
avoid owing money on a car you don’t have, you can ask the
insurance company to let you keep the car. The insurance company
will pay you the market value of the car minus the salvage value,
and let you keep the car. You can typically find a body shop who
will partially “fix” the car for less than the original
estimate, often less than what the insurance company pays you. You
can then continue to drive your car and pay the note, and pocket
the difference.
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HOW LONG WILL IT TAKE ME TO RECOVER FROM
MY INJURIES?
It is difficult to predict how long it will take for you to recover.
The nature of your injuries and your response to treatment will
have a lot to do with your recovery. Your doctor can give you the
best idea of your prognosis for recovery.
For “soft tissue injuries”, in other words injuries
that do not involve broken bones or torn or severed ligaments or
connective tissue, it is not unusual for a doctor, chiropractor
or sports rehab therapist to prescribe rehabilitative treatment
taking place over 6 to 12 weeks. This treatment is often referred
to as “conservative treatment” Conservative treatment
typically consists of therapeutic massage, electro-stimulation,
and heat and cold therapy to the injured area, as well as spinal
readjustment to relive pressure on strained tissues and rehabilitative
exercises to strengthen supportive muscles and promote healing by
increasing blood flow to the injured area. Often accident victims
will participate in therapy in 30 to 45 minute sessions 2 to 3 times
per week while their injuries are healing. Patients are often also
advised to participate in a home-exercise regime to supplement their
therapy sessions.
Occasionally accident victims with soft tissue injuries do not
respond to conservative treatment. In this case their doctor may
prescribe cortisone shots or other injective drug therapy directly
to the injured area. Occasionally accident victims suffer from impingement
or pinching of the soft tissue as a result of changes in alignment
of the bones, vertebrae or joints. In some cases, doctors may recommend
surgery as a means of relieving pain to impinged tissue.
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WHAT DO I DO IF MY TREATMENT IS NOT
HELPING?
If you are not feeling better as a result of your treatment, you
should discuss this with your doctor. Your doctor can modify your
treatment or find different types of treatment that may be more
effective for you. Even if you do not feel your treatment is helping,
you should not simply discontinue treatment. If you stop treating
before you are fully healed, the insurance company will take this
as a sign that you are not experiencing pain or that your injury
is not severe. They will adjust their estimation of the value of
your claim accordingly. If you feel that your doctor is not helping
you and you wish to continue to receive treatment, please contact
our office so that we can discuss your alternatives.
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WHAT IF MY CONDITION IS PERMANENT?
Your doctor will continue treating you until he determines that
you have reached “maximum medical recovery”. In other
words, your doctor will treat you as long as you are responding
favorably to treatment and continue to shows signs of improvement
as a result of treatment. It is possible that the doctor may determine
that, although you have reached maximum medical recovery, you may
continue to have symptoms of pain into the future. If this is case,
we will submit the report containing the doctor’s opinion
to the insurance company when we enter into settlement negotiations.
It is possible the doctor may give you a permanent disability rating
based on your inability to perform certain tasks as a result of
your pain. Your doctor can only give you a permanent disability
rating if he is certain that no additional improvement can be expected.
If the doctor rates a disability that prevents you from performing
some aspect of your job, you are entitled to collect future lost
wages from the adverse party or his insurance company.
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WHAT IF MY INJURIES
PREVENT ME FROM PERFORMING MY JOB?
If your pain prevents you from performing some aspect of your job,
tell your doctor. Your doctor may determine that certain job duties
are exacerbating your injuries or preventing you from healing faster.
In this case the doctor will write a “disability letter”
excusing you from work. Although your employer is not required to
pay you for missed time, Texas law requires your employer to hold
your job for you for 90 days while you recover. We will collect
any wages you lost from the adverse party’s insurer when we
settle your case.
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WHAT CAN I DO FOR MONEY
WHILE MY INJURIES ARE HEALING?
If you were on the clock when your accident happened, you can collect
workman’s compensation if your employer carries worker’s
compensation insurance. Worker’s Compensation is entitled
to “subrogation” (reimbursement) out of the settlement
for any money it paid while your case was pending. If you have disability
insurance, you can make a claim on your disability insurance for
any wages you lost while your claim is pending. Disability insurance
is also entitled to subrogation.
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CAN I GET MONEY FROM THE OTHER DRIVER’S
INSURANCE WHILE I AM WAITING?
No. The adverse party’s insurer will only pay you once for
the bodily injury portion of your claim. The insurer will want a
full settlement and release from you in exchange for any money it
pays. The adverse party’s insurer will not make partial payments
to you for lost wages or medical bills while your claim is pending.
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WHEN WILL MY CASE BE READY TO SETTLE?
Once you are finished treating, or your doctor determines that you
have reached “maximum medical recovery”, we are ready
to submit a demand to settle your case. We will prepare a “demand
package” for the adverse party’s insurer which contains
the police accident report, all your medical records, all your medical
bills and any lost wage statements, along with a letter stating
our position on the case, detailing the impact the accident has
had on your day-to-day life, and demanding a settlement amount.
The insurance adjuster will review the materials contained in the
demand package and then settlement negotiations will begin. The
adjuster will make an “offer” to settle. We will counteroffer
with a higher amount if we do not feel that the offer adequately
compensates you for your damages. We will arrive at a settlement
amount with the adjuster and agree to execute a settlement and release
upon payment of the settlement funds. The vast majority of claims
settle in this way. If, however, the insurance company is unwilling
to admit the liability of its driver or offer a fair amount to compensate
you for your damages, we can file a lawsuit to bring the case into
court. This is only done with your approval.
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HOW MUCH WILL MY CASE SETTLE FOR?
It is difficult to predict the value of your case until your doctor
has examined you and determined the extent of your injuries. The
value of your case can be affected by the severity of the accident
which caused your injuries, the duration of your recovery, your
prognosis for future medical problems, the amount of medical expenses
incurred, the “reasonableness and necessity” of those
expenses, any pre-existing conditions, and the probability that
you may incur future medical expenses.
Your are entitled to recover two kinds of damages: “actual
damages” and “general damages”. Actual damages
are expenses that are documented and quantifiable, such as medical
bills, lost wages and property damage (damage to your car). General
damages are damages you have suffered to the quality of your life.
General damages include past and future pain and suffering and the
loss of any activity you used to perform that your injuries prevent
you from enjoying, like playing tennis or wrestling with your kids.
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CAN I SETTLE PART OF MY CASE EARLY ON
AND LEAVE MY CLAIM OPEN FOR FUTURE MEDICAL BILLS AS I INCUR THEM?
No. When the insurance company offers you a settlement, they will
expect a full release in exchange for any money they pay. This is
the reason you cannot settle for part of your money while you are
still treating. At the time we make a settlement demand to the insurance
company, we will include the possibility of future medical expenses
as part of our demand if your doctor determines that you may have
medical bills in the future relating to your injury. It is very
important that we not submit a demand until the doctor has had adequate
time to treat you and determine your long term prognosis for recovery,
less we underestimate the value of your case.
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WHAT IF MY TOTAL DAMAGES EXCEED THE
OTHER DRIVER’S POLICY LIMITS?
The other driver’s insurance company is only obligated to
pay up to their driver’s policy limits. Policy limits in Texas
are a minimum of $20,000 per person and $40,000 total per accident,
although they can be much higher depending on how much the other
driver has chosen to insure himself. Commercial policies typically
have much higher policy limits than personal policies. If the value
of your claim exceeds the other driver’s policy limits, we
can submit a claim on your own auto insurance policy, and on the
insurance policy covering the car you were driving or riding in,
for “underinsured protection”. If your policy has uninsured/underinsured
coverage, your own insurance company is obligated to pay the amount
by which the value of your claim exceeds the other driver’s
policy limits. In this situation, we will submit a claim to your
own insurance company, or the insurance company covering the car
you were in, and negotiate the value of the claim just like we would
with the other driver’s insurance company. We will fight for
every dollar you have coming to you!
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CAN I TAKE THE SETTLEMENT OFFER FOR
POLICY LIMITS AND THEN SUE THE OTHER DRIVER FOR THE REST?
No. If you settle with the other driver’s insurance company
for policy limits, the insurance company will expect you to sign
a settlement agreement releasing their driver from any further liability
to you. If the value of your claim exceeds policy limits and we
believe that the other driver has personal assets to satisfy a judgment,
we will sue the other driver and commence a lawsuit to recover the
full amount. Once a judge or jury returns a verdict for a judgment
in an amount that exceeds the other driver’s policy limits,
the driver’s insurance company must pay the judgment up to
the amount of policy limits, and the remainder can be collected
directly from the driver.
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WHAT HAPPENS IF WE FILE A LAWSUIT?
If the insurance company will not offer you a fair settlement amount,
we can commence litigation by filing a lawsuit in a court of law.
The lawsuit will be served on the other driver, who will be named
as the defendant. The other driver’s insurance company will
pay for a lawyer to represent the other driver, and the process
of litigating the case will begin. Each party will serve the other
party with requests for “discovery”. Discovery requests
can take the form of written questions called “interrogatories”,
or requests for documents like medical records. The attorney will
consult with his client and prepare responses to discovery requests,
which the client must swear to in front of a notary. Each party’s
lawyer will typically take a “deposition” of the other
party, meaning that the person will go to the lawyer’s office
and answer questions under oath while a court reporter takes a transcript
of the testimony. Usually the insurance company’s lawyer will
also take a deposition of the injured party’s doctor. Once
discovery is complete, typically the court will require the parties
to attend a “mediation” to try to reach a settlement
agreement before the case can be set for trial.
Even after a lawsuit is filed, settlement negotiations still take
place. Usually lawsuits are settled during the discovery process
or at mediation. It is uncommon for an automobile accident case
to end up being tried in front of a jury in a court of law. However,
occasionally auto accident cases do get tried in front of a juries.
When you hire the law firm of Yanez | McGee | Kuhner to represent
you on your automobile accident case, you can take comfort knowing
that the lawyers of Yanez | McGee | Kuhner are experienced trial
lawyers who a ready to go head to head with the insurance company
lawyers and take your case all the way to trial by jury if it becomes
necessary to do so to get you the justice, and the money, you deserve!
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