How Do I Know the Value of My Claim?
When you suffer any type of injury and file a claim with your insurer, you typically can expect a fairly prompt response. The insurance adjustor may even offer you a settlement within days or weeks. They'll tell you that they're trying to be responsive to your immediate needs, but you should beware. Your insurer is a for-profit company, with shareholders who want maximum value from their investment. Insurance companies typically accomplish this goal by minimizing the amount they pay out on claims. So how can you know whether the settlement you're offered is fair?
How Will an Insurance Company Evaluate Your Claim?
When your insurer assesses the value of your personal injury claim, they generally look at these factors:
- Your total damages anticipated as a result of the accident;
- How much it will cost to defend any claim you make against the insurer, including legal fees and the cost of expert witnesses, if necessary;
- The extent to which you may have contributed to your injuries;
- Whether you had a preexisting condition that made you susceptible to injury; and
- Whether you've retained experienced and aggressive legal counsel to fight for your recovery.
How Are Damages Calculated?
The damages available for a personal injury fall into two categories: economic and non-economic. Economic damages are those that are tangible and easily calculated, including the following:
- Lost wages and income, both now and in the future,
- Present and future medical expenses,
- Property damage,
- Nursing care, and
- Funeral and burial expenses.
Non-economic damages are more difficult to ascertain and usually include loss of enjoyment of life (hobbies and other activities), loss of companionship or consortium, emotional distress, and physical pain and suffering. Calculating pain and suffering can be particularly difficult. Many courts use a "multiplier" procedure, in which the jury determines the amount of tangible losses (medical expenses, lost wages, etc.) and simply multiplies that amount by a factor (usually between 1 and 10) to determine compensation for pain and suffering.
The Importance of Retaining Legal Counsel
Unlike representatives of the insurance company, your attorney will have a vested interest in maximizing your recovery. You should hire an experienced personal injury lawyer as soon as practicable after an injury.
The Statute of Limitations on Personal Injury Lawsuits
In the immediate aftermath of an accident, the dramatic changes you experienced in your life might make it difficult to even think about taking legal action. However, if you're unable to work, or you require extensive medical care, you may quickly realize that you need to take steps to recover compensation for your losses.
There's a specific time period in which you must file your complaint, governed by a written law known as the "statute of limitations." There are sound reasons for the existence of such a limitation. First, there are risks associated with waiting to file a lawsuit:
- Witnesses might move, die, or forget what they saw or heard;
- Physical evidence might deteriorate or be lost; and
- You might incur other injuries, making it difficult to determine the exact losses you suffered in the first accident.
In addition, it's long been considered unfair for a defendant to live an infinite period of time with the threat of a lawsuit hanging over their head. It's generally in everyone's best interest to address and resolve all issues in a timely manner.
The statute of limitations for a particular legal claim varies based on the type of claim and the state in which the claim is filed. In Texas, the statute of limitations on personal injury claims is two years from the date of the injury. If you fail to file within that time period, you are likely to lose your right to compensation for your losses.
There are, however, limited situations where the statute of limitations may be "tolled" or extended. For example, under the "discovery rule," the statute of limitations does not start to run until the injured party knows or should know about the injury. The discovery rule typically applies to injuries that are cumulative, like repetitive stress injuries, or that may not be apparent for some period of time, such as exposure to dangerous chemicals.
If your injuries or losses are the result of carelessness or negligence by a local or state government agency or employee, the Texas Tort Claims Act will apply. Under this statute, any personal injury claim against a government entity or employee in Texas must be filed within six months of the date of the accident.
Do I Look to My Insurance Company or the Rideshare Company?
Uber, Lyft, and other rideshare companies are now major players in American transportation, with more than one in three Americans using a rideshare app every month. But what happens if you’re injured in a motor vehicle accident while riding in an Uber or Lyft vehicle? What if a rideshare vehicle collides with your car while the rideshare vehicle is carrying a paying passenger or on the way to pick up a fare? Who will pay your medical bills? Who can you look to for recovery from your losses?
The initial determination of who pays your bills will depend on whether your state is a "no-fault" liability state. In a no-fault jurisdiction, you file all claims with your own insurance company, which may in turn file a "subrogation" complaint to recover its costs from the at-fault party's insurer. In Texas, which is not a no-fault state, an injured party may seek damages directly from the at-fault party's insurer.
There's a legal theory, known as respondeat superior, which holds that an employer may be liable for injuries caused by an employee acting in the course of his or her employment. Accordingly, if you're injured in an accident caused by a rideshare operator, your first inclination might be to pursue recovery from the rideshare company's insurance provider. However, rideshare operators are generally considered to be "independent contractors" and not technically employees of Uber, Lyft, or any other rideshare company. The doctrine of respondeat superior does not apply to independent contractors.
Most rideshare companies, though, require their drivers to have valid automobile insurance that covers them and the car they drive. In addition, there are minimum personal auto insurance requirements established on a state-by-state basis. Many of the more reputable rideshare companies, including Uber and Lyft, carry their own auto insurance on drivers, which may be available in certain situations:
- If the rideshare app was turned on, but the driver did not have a fare at the time of the crash, Uber and Lyft provide coverage up to $100,000.
- If there was a passenger in the rideshare vehicle at the time of the accident, Uber and Lyft may provide coverage up to $1 million.
- If a rideshare operator is involved in a motor vehicle accident, but the rideshare app was not on at the time of the crash, an injured person may pursue recovery only through the driver's personal motor vehicle insurance.
Protecting Your Rights to Full Benefits after an Accident
When you're involved in a motor vehicle accident, one of the first steps to take is to contact your insurance provider. Don't be surprised if you get a prompt response and an adjustor even calls to immediately come out and get a statement from you. They frequently will want to record your statement. However, it's often not in your best interests to meet with your insurer until you retain legal counsel.
Here are some things to know before you agree to give a recorded statement to an insurance company:
Injuries That Are Not Immediately Apparent May Be the Most Debilitating
When you're hurt in a motor vehicle accident, your first priority must be your health and well-being. Some of the injuries you suffer are likely to be immediately discernible—broken bones, cuts, and lacerations are easy to identify. However, often there are injuries that are not readily evident—that can take days or weeks to manifest—but that can have more significant long-term consequences. They include the following:
- Neck or shoulder pain or stiffness — The adrenalin your body produces after a car crash can mask trauma to your head or neck. It may take a few days for inflammation and swelling to reach a point where it causes discomfort. In many instances, neck or shoulder discomfort is a consequence of whiplash, where muscles and other connective tissue sustain injury from a violent snapping back and forth in your upper body. Sprains, strains, and tears to cartilage, tendons, and muscles may take days to cause significant pain or limit movement.
- Headaches — If you have a headache that doesn't show up until a few days after a motor vehicle accident, but it then persists, it's likely to be a symptom of a concussion. It could also, however, indicate a blood clot, so it's important to seek immediate medical attention.
- Numbness or loss of feeling in extremities — If you have tingling or loss of sensation in your arms or hands, it's likely an indication that you’ve suffered some degree of whiplash. Similar symptoms in your legs or feet may indicate spinal cord or hip trauma.
- Lower back pain — Statistics indicate that the majority of people involved in car accidents will experience some lower back trauma. About three of every four side-impact accidents lead to lower back injuries, and more than half of all rear-enders do. Lower back pain can involve muscles, but it also might be a symptom of vertebra damage.
- Swelling or pain in your stomach or abdomen — This is likely an indication that you are experiencing internal bleeding. Other signs of this type of injury include lightheadedness, fainting, or deep purple bruises on your skin.
- Loss of physical function or changes in personality — This probably indicates a traumatic brain injury (TBI). If you're experiencing memory loss, vision or hearing problems, or mood swings, seek immediate medical care.
A Checklist for Protecting Your Health and Your Rights
In the immediate aftermath of an automobile accident, there can be great confusion and uncertainty as to what you should do. Here are the five most important steps to take when you've been hurt in a collision:
- Step One — Seek treatment for your injuries—Your health and safety are your top priorities after a motor vehicle accident. Don't try to be a hero and just shake it off. You'll get the best care, and have the best chance for a full recovery, if you acknowledge that you've been hurt and let medical professionals determine the extent of your injuries. If you are unable to move on your own, or if you suffer injuries to your back or neck, stay put and wait for emergency medical technicians. Let them decide if you need to immediately go to the hospital (by ambulance, if necessary).
If you can move, or if your injuries seem minor, you still should seek immediate medical attention, either at an urgent care facility or with a family practitioner. Ask the doctor to document everything in writing. Be certain to mention anything that's out of the ordinary. Don't focus on the obvious (a broken leg) but neglect to tell the doctor about the stiffness in your back or neck.
- Step Two — Get information from the at-fault driver—You'll need the name, address, phone number, e-mail address, or other contact information for any other motorists involved in the accident. You also should ask for the name of their auto insurance provider.
- Step Three — Identify all potential witnesses and gather contact information from them—That includes anyone who was riding with you, passengers in other cars, and bystanders. Your attorney will need to contact them to get a statement or take a deposition.
- Step Four — Get pictures of everything—Photograph vehicle damage, the injuries you sustained, weather conditions, skid marks, and roadway conditions. You don't need a fancy camera—the camera on your phone will suffice.
- Get Step Five — Contact the experienced personal injury lawyers Bailey & Galyen—The sooner you retain legal counsel, the less risk there is that evidence will be lost or witnesses will disappear.
If you are unable to move, ask someone else to gather all necessary contact information and take pictures.
Hello, my name is James Bridge. I’m with the attorneys’ office of Bailey & Galyen. I’v been a personal injury attorney for 22 years. I would like to discuss with you, the difference between uninsured motorist and undersinsured motorist coverages.
Uninsured coverages are if you’re hit by someone who does not have liability coverages. This coverage allows you to collect for your lost wages, your medical damages, and any pain & suffering that you might incur as a result of someone else’s negligence.
Underinsured coverages are if you are hit by someone who doesn’t have enough coverages to cover you for your damages, and therefore you have to go to your own policy to recover for those same damages that that person caused.
There’s always been a question of people saying “Do I need to have UIM coverages?”. That includes underinsured and uninsured coverages. Yes, you do. The reason for that, is very obvious. If you’re hit by somebody that is not covered by insurance, you wanna have and make sure that you have coverages on your own automobile policy, to cover you for your damages. If you are hit by somebody that does not have enough insurance, you want to make sure that you have UIM coverages to make sure that you are taken care of for your bodily injury and any out-of-pocket expenses and lost wages and pain and suffering.
The cost is very negligible compared to what it will cost you if you do not have those coverages. For example, if you’re hit by somebody that has no insurance and you don’t have UIM coverages, then you basically have no recovery. There’s no way to recover from that person, or from the insurance company, or from your own insurance company for your damages.
So, I encourage you to go out and purchase that additional coverage, it does not cost that much more than your typical liability coverages because it is very rarely used. You wanna make sure that you’re protected and protect your family.
So if you’re ever involved in a motor vehicle accident and you have some questions about if you have UIM coverages, I encourage you to call Bailey & Galyen. Ask for myself or any other qualified, experienced personal injury attorneys in our firm. We’ll be happy to help you and guide you through the process to make sure that you recover all the damages that you are entitled to, including pain and suffering.
Hi my name’s Kim Wyatt, I’m the Managing Attorney of Bailey & Galyen’s Workers’ Comp Department.
You may be experiencing issues with what your injury is. The insurance adjuster may be labeling it as very minor, when you and your doctor think it’s way more severe than that. This is called extent of injury. What body parts are part of your injury? For example, the insurance might have accepted a contusion which is a bruise or a sprain/strain.
Your doctor, after having MRI or further testing has indicated that you have disc involvement in your lumbar or cervical areas. That is more severe of a condition. The insurance most typically will deny that, dispute it, and you will need to take it to a hearing in order to win those body parts. It is not a simple common sense approach as to what your injuries are. The insurance company generally tries to accept just the minimum injuries possible and you have to fight your way to get the more severe conditions.
Give us a call today for a free initial phone evaluation of your case so that we can see how we might be able to help you.
I’m Steve Maxwell, I’m a Board Certified Personal Injury Trial Law Specialist with the Bailey & Galyen Law Firm. My office is in Downtown Fort Worth at the Summit Office.
I have been practicing law for more than 40 years, and I have been Board Certified in my specialty area of Personal Injury Trial Law for more than 35 years.
Over the last several years I have concentrated my practice on major personal injury cases, specifically including trucking, wrongful death, and serious injury cases.If you’ve been involved in a bad truck wreck, you know how this can so dramatically and drastically impact your life. So if I can be of any help, if something like that happens to you, don’t hesitate to give me a call.