What You Need. Learn How To SETTLE. Settlement YOUR OWN ACCIDENTAL INJURY CLAIM IN VIRGINIA WITHOUT A LAWYER

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1 Learn How To What You Need To Know About Getting A Fair And Reasonable Settlement SETTLE YOUR OWN ACCIDENTAL INJURY CLAIM IN VIRGINIA WITHOUT A LAWYER

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3 Learn How To What You Need To Know About Getting A Fair And Reasonable Settlement SETTLE YOUR OWN ACCIDENTAL INJURY CLAIM IN VIRGINIA WITHOUT A LAWYER Michael S. Weisberg Attorney at Law 112 College Place Norfolk, VA Toll Free Michael@weislaw.com W O R D A S S O C I A T I O N P U B L I S H E R S

4 Copyright 2011 by Michael S. Weisberg All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written permission of the author. Printed in the United States of America. ISBN: Designed and published by Word Association Publishers 205 Fifth Avenue Tarentum, Pennsylvania

5 T a b l e o f C o n t e n t s ABOUT THE AUTHOR Michael S. Weisberg Introduction Disclaimer Chapter 1 Staggering Statistics Chapter 2 The Insurance Company s Goal Chapter 3 Do I Need An Attorney? Chapter 4 Following An Accident Chapter 5 Determining The Value Of A Claim Chapter 6 Conclusion About our Firm MICHAEL S. WEISBERG, P.C

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7 A B O U T T H E A U T H O R Michael S. Weisberg Michael Stephen Weisberg was born in Norfolk, Virginia, on November 25, He attended J.E.B. Stuart and Blair elementary schools, Blair Junior High School and graduated from Norfolk Academy. While growing up in Norfolk, Michael worked in his family s furniture business, assisting in the warehouse in addition to delivering and selling furniture. Michael attended the University of Virginia. There, he worked for the UVM Magazine and the Cavalier Daily newspaper and was an active member of the rugby and polo clubs. He graduated with a Bachelor of Arts degree in While at the University of South Carolina Pettigrew School of Law, Michael was a finalist in the Prince Competition, where he demonstrated exceptional ability in appellate advocacy. He was a recipient of the American Jurisprudence Award in Conflicts. He was selected by the NAACP to travel to Memphis, Tennessee. There, he helped investigate police brutality in connection with the Memphis riots that followed the assassination of Dr. 7

8 Martin Luther King. He was a member of Phi Alpha Delta Law Fraternity. He received his Juris Doctor in Michael was admitted to the Virginia State Bar and US District Court for the Eastern District of Virginia in He worked for a Norfolk law office, emphasizing Personal Injury, Domestic Relations and Criminal Law before starting his own firm in In 1973, he was admitted to the US Court of Appeals, Fourth Circuit, and in 1974, the US Supreme Court. He is a member of the Norfolk and Portsmouth Bar Association, the Virginia Trial Lawyers Association and the American Association for Justice. Michael is past president and current board member of the Beth El Synagogue in Norfolk, served on the board of the Beth Shalom Home and currently is an active member and serves on the board of the Metro Norfolk YMCA. He is a past president and current member of the Chuckatuck Ruritan Club and a past president of the Chuckatuck Dance Club and was a volunteer fireman for the Chuckatuck Volunteer Fire Department. Michael is happily married to Lynn, his kayaking and biking companion of 41 years. They enjoy sharing their active lives with their four married children and eight grandchildren, all under the age of eight.

9 I n t r o d u c t i o n This book was written to let victims of injuries resulting from an accident know that they may not need a lawyer to settle their case. That may sound strange coming from a lawyer, but it s true. Not every accidental injury case needs a lawyer and if your case falls into this category, there is absolutely no need to pay a lawyer a high percentage of any recovery you may receive for something that you can do on your own. However, if your case is more complicated or involves more serious injuries, then you probably should not attempt to settle the case yourself. 9

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11 D i s c l a i m e r Pursuant to the Virginia State Bar, please be advised that this book is NOT LEGAL ADVICE nor is it intended to be so. The purpose of this book is to offer information and give you a substantial understanding of personal injury law in Virginia. It is to help you to decide whether or not you have a viable injury claim, whether or not you need an attorney and how to proceed with your accidental injury claim if you elect to handle the claim without an attorney. 11

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13 C h a p t e r 1 Staggering Statistics Every day, personal injuries have devastating effects on people in the southeastern region of Virginia. These types of injuries most often result from automobile accidents, motorcycle accidents, boating accidents and accidental falls. Accidents can happen anywhere at work, at home or in public places. Sometimes, they are the result of defective products, including drugs, machinery, toys, medical equipment and motor vehicles. In order for these accidents to constitute a viable claim, they must be caused by someone else s negligence and must occur through no fault of the injured party. The important thing that all of these accidents have in common is that they occur through no fault of the injured party. Unfortunately, another thing they have in common is the similarity of the destructive consequences that injuries can have on peoples lives. Personal injury can cause the loss of wages, high medical bills and time lost dealing with medical care and insurance companies. That is not to mention physical pain, emotional turmoil and the need to rely on friends and family to help you do or do for you routine tasks you effortlessly did for yourself prior to the accident. Most tragic is the grim fact that a personal injury can also result in a permanent loss of life 13

14 or equally if not more tragic, a severe decrease in the quality of life. According to the Virginia Department of Motor Vehicles, a traffic crash occurs every 3.42 minutes on Virginia roads. Every day, 208 people are injured because of traffic crashes in Virginia and, sadly, 2.59 lives are lost each day on Virginia roads. The number of traffic-related fatalities in our state has increased by 2.6% over the past few years. As stated in the 2009 annual report published by the Virginia Poison Control Center, 80% of all poisonings reported to the Center over 37,572 cases that year were accidental or unintentional, including childhood, environmental and occupational poisonings. The Center for Disease Control reported that death from unintentional poisoning was second only to motor vehicle crashes as a cause of unintentional injury deaths in Thousands of personal injury cases reported each year can be classified as fall-down accidents. These incidents can happen in the workplace, outdoors, in places of business and in private residences. Common causes of fall-down accidents are slipping on spilled liquids, wet floors, or snow and ice; tripping over loose flooring or carpeting, electrical cords or holes in the ground, and unstable railings causing someone to lose their balance and fall. Common injuries from fall-down accidents are sprains, fractures, broken bones, and traumatic brain and spinal injuries. 14

15 C h a p t e r 2 The Insurance Company s Goal To Pay You As Little As Possible, If Anything At All Yes, all of these statistics are alarming. What is even more alarming are the tactics that insurance companies employ to make sure that they pay as little as possible on claims against their policies. If you or anyone close to you has been injured and has a personal injury claim, it is important to remember that insurance companies are for-profit businesses. Any claim that is paid out to you comes directly from the insurance company s bottom line, and they will do anything to minimize the amount of the payout. Whether you need an attorney or not, no one should settle an accidental injury claim without first understanding the system. Keep in mind that the insurance company is not your friend. They really just want to settle your case as quickly and as cheaply as possible, sort of like it never even happened. Here are some of the tactics that insurance companies commonly use to wear you out and get you to just go away: Having an adjuster contact you within a day or two of your claim. The adjuster will be very friendly and sympathetic. They will ask you to make a recorded statement or to sign an 15

16 agreement in order to expedite the claim. They will also give you advice on how to proceed. Remember, they work for the insurance company and their only interest is what is best for the insurance company. Anything you say to an insurance company adjuster is on the record and can be used against you. They are trained to make light conversation while actually trying to elicit information that can be used to minimize your claim. Making verbal promises and then stringing you along until the statute of limitations runs out on your claim. Watch out for the adjuster who shows up at your house and promises to pay your future medical bills. You may think to yourself, Alright, they seem friendly enough, and they said they d take care of everything. I ll just wait a little while longer. After all, they promised. Truth is, those promises will not happen. The insurance company knows that often, you are in a financial bind. Even if you have good health insurance, the fact that you may not be working can make it difficult to handle co-pays and deductibles. The insurance company knows that you are getting hit by expenses, so they take their time and deliberately delay your claim. But if you wait too long and the statute of limitations runs out, you have no recourse and cannot pursue the claim further. Be wary of anything the insurance company promises. Requesting unnecessary information. Insurance companies will insist that you track down every little piece of information before they can evaluate your claim. Even if the information they are asking for would not add a penny to their offer, they are happy to wait another six weeks for you to track it down. Meanwhile, they are earning interest on the money they are not paying you. 16

17 Disputing medical treatment. Even though few, if any, insurance adjusters have ever gone to medical school, they seem to know just what treatment is right for you. Something somewhere in their computer programs will tell them when you should be better. Nickel and dime the medical charges. Insurance companies have a slick way of shaving off every aspect of every claim they handle. For example, they will suggest that your treatments were unnecessary or excessive. They will also suggest that you did not need to miss so much time from work. When you apply that to the millions of claims they handle each year, the insurance companies get rich and keep getting richer. Misrepresenting insurance benefits. This can have a huge impact on your case. The insurance company will tell you, for example, that there s only $25,000 in coverage when, in fact, there s another $1,000,000 in coverage that they didn t realize was there. Negotiating with the insurance company is probably the biggest obstacle to your goal of getting a fair and reasonable settlement. There are many downsides to trying to negotiate with an insurance company. There are many risks as well. If you fall victim to what they say they will do, you will most likely settle too soon and be stuck with future medical bills and lost wages that you will have no way of recovering. It is imperative that you be very patient and careful. 17

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19 C h a p t e r 3 Do I Need An Attorney? Here s How To Decide You definitely do not need an attorney for every small injury case. In fact, attorney fees in many cases where there are only minor injuries and little or no property damage can eat up a large portion of any settlement received. So, for the minor cases, it s just not worth going through the expense of hiring a personal injury attorney. That being said, however, just because you ve been injured doesn t mean you automatically know how to handle your case. You ll need to do some research to learn how to judge the value of your claim. You ll also need to understand how the law in Virginia regarding accidental injury cases works. In the middle of all this legwork, you may be tempted to just throw in the towel and accept the insurance company s offer, even though you know it is obscenely low and doesn t even begin to cover your medical expenses. Hang in there. It will be worth it in the end. Never never agree to a settlement offer from the insurance company or even sign anything until your injuries have resolved or you have reached maximum healing. It often takes two to three months or more just to determine the extent of 19

20 your injuries. After that, you need to allow time for doctor visits and, often, physical therapy. So, don t even think about settling before you are completely healed and have completed all treatment as recommended by your doctor. Do not sign any document of any kind, including the back of a check, unless you fully understand every word and the implications and possible consequences of signing. Signing the back of a check can amount to a complete release of all aspects of your claim, present and future, regardless of the magnitude of your injury and/or damages. Signing a medical release can open up your entire medical history. Insurance companies can have a field day looking for excuses to minimize your claim or reject it altogether. Make sure that you have a thorough understanding of the principles of negligence that apply to your situation. In the legal world, negligence is defined as the failure to use reasonable care. The defendant or, the at-fault party must be responsible for the negligence that caused the accident and your injuries. In most but not all instances, you the victim must be completely free from any negligence that caused the accident and your own injuries. Children aged seven or under are incapable of contributory negligence. Children between the ages of seven and 14 may be guilty of contributory negligence. 20

21 Maritime accidents (boating, etc.) are an exception and are subject to comparative negligence. You get a smaller percentage of a recovery based on the relative percentage of the parties respective negligence in causing the accident. The negligence of the defendant must be directly responsible for the accident and your injuries. There is a two year statute of limitations period for most, but not all, types of accident cases in Virginia. Some cases require special notices to be given to the responsible party within one year or less or be forever banned from any recovery. The statute usually begins to run on the date of the accident. Some exceptions are: Children under the age of 18 and not otherwise emancipated usually have up to two years beyond their 18 th birthday to file suit or they will be forever barred from their claim. Mental or penal inmates usually have up to two years beyond their release to file suit or they will be forever barred from their claim. 21

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23 C h a p t e r 4 Following An Accident Let s back up for a moment to the time of the accident. The very second you are involved in an accident, you enter into a complicated maze of injuries, doctors, therapists, missed work and insurance adjusters ready to pounce on you to settle your case and be done. You may think you know what you should do if you are involved in an accident. But the truth is that if you are in an accident, you are probably not thinking clearly and cannot prioritize on the spot what needs to be done at that exact moment and in the days, weeks and even months that will follow. There are several steps that you should take to ensure that your case is not ruined from the start. Along the same lines, there are some things you should not do for the same reason. What you should do: First, you must stop. Literally. Virginia law requires any driver involved in an accident to stop at the scene or as close to the scene as possible. Don t take off. Don t go anywhere. If you do, that is considered a serious offense. Many times, judges and prosecutors will assume that if you leave the scene of the accident you had been drinking or had been driving recklessly and, therefore, were the cause of the accident. 23

24 Call 911. Having a police investigation and a police report will help to establish who was at fault. Insurance companies rely heavily on the police report when determining who was at fault. If there is no police report, the two sides must fight it out over who is to blame. Stay as calm as possible. Do not make accusations or admit that you were at fault. Often, people who have just been in an accident become very talkative and will tell anyone who will listen about what just happened. Speak with only the police. If you are not sure what happened, tell them that. Never guess. Write down as much information about the accident as you can. This includes everything the at-fault driver said at the scene; the name and a description of everybody you remember being at the scene; the license plate numbers of cars stopped at the scene and the driver s license, registration and insurance numbers of the at-fault driver. You would be surprised how often the at-fault driver s version of an accident changes dramatically when a person harmed by the driver brings a claim. What is said at the scene by the driver to the police is admissible at trial. Also, others can testify to what they saw and heard. This can help corroborate your story. If the at-fault driver changes their story after a claim is brought, it might be necessary to interview witnesses who were at the scene who either saw or heard what happened. Immediately seek out witnesses and ask them to give statements of their observations, along with detailed contact information such as work and home addresses and phone numbers, cell phone number and address since their written statements are generally not admissible into evidence because of hearsay qualifications. The opportunity to later identify witnesses who 24

25 were at the scene may never come. There is usually only one chance to get all of the details, which can make or break a case. Notify your insurance company of the accident and the fact that you were injured. Your insurance policy requires you to do so. More importantly, however, the sooner you notify your insurance company the sooner they can start getting benefits such as medical expense payments and wage loss reimbursement flowing to you. Frequently, the at-fault driver is uninsured or underinsured. Failing to notify your insurance company in a timely manner and/or failing to cooperate with your insurance company may be reason enough for them to deny you coverage. Take great care when giving a statement to either your own insurance company or the other party s insurance company. In either event, the statement can later be used against you. Both insurance companies are anxious to find something, no matter how insignificant, that they can use to protect their interests and derail your claim. Photograph all damage to your car inside and out, top to bottom. In truth, the amount of damage to a car is a poor predictor of how badly its occupants were inured. But, that is counterintuitive and not what the average person thinks. So if there is damage, you want to make sure it is photographed. Sometimes, particularly in rear end collisions, the damage is more apparent from inside the trunk or under the car where the damage to the frame or hidden bumper components can be seen. If your seat back broke or was laid back flat, photograph it. If your knee made a dent in the dashboard or your head cracked the windshield or side window, photograph it. If the airbags deployed, photograph them. The photographs help 25

26 illustrate that the impact was much greater than is apparent by just looking at the car. Also take pictures of the accident scene, including road signs, traffic lights and anything else that can set the scene. Have somebody photograph your injuries. Aside from the fact that it helps document what you have gone through, photographing your injuries can serve as important evidence to help prove that the collision was the cause of your injury. Seek medical attention right away. In addition to the obvious medical reasons, from a legal standpoint it is important to have documented in a medical record that you had complaints and what those complaints were. Let s face it, there are some people who go to the doctor for every minor ache or pain, and others who won t go no matter what, thinking that their problem will eventually resolve itself. You and I both know that a person can delay going to the doctor for days or even weeks and yet still have suffered an injury. The insurance company doctor will use the delay in treatment to claim either that you were not really hurt in the accident or you would have gone to the doctor right away, or that the injury is real but must have happened apart from the accident. Why can t you just explain why you waited? You can, but in the claims process, the more things you have to explain, the weaker your case becomes. Every little thing you have to explain creates more doubt about the legitimacy of your claim. Tell your doctor about all the symptoms you are having, even if you don t think or are not sure they are related to the accident. This is so all complaints are documented as early as possible in your medical chart. Since you are not a doctor, 26

27 symptoms that you do not think are related to the trauma might actually be symptoms of something quite clearly related. The idea is not to be a complainer, but to fully explain all your symptoms to the doctor immediately following an accident. Follow your doctor s advice. The insurance company s doctor and lawyer will argue that you would have healed long ago and been just fine today had you done what your doctor ordered. This is just another way to plant the seed of doubt. Attend all scheduled doctor appointments and therapy sessions. But if you can t, call and explain why. A bunch of no show entries in your medical chart with no explanation makes it look like either you are not cooperating with the treatment your doctor has recommended or that you must not need treatment at all. If you call and explain why you can t make an appointment, the doctor s staff will usually note the reason in your chart. If it is explained right on the chart, you won t have to try to remember months later why you missed a particular appointment. Keep the relevant insurance adjusters informed about your medical progress. Give them copies of your medical bills and doctor reports on a regular basis so that they can properly adjust their reserves to take into account the extent of your injuries. These reports should detail all diagnoses and prognoses along with a discussion concerning the cause of each of your injuries. Be careful to screen all of the bills and medical reports to make sure that they do not contain any inaccuracies or details unrelated to the injuries resulting from the accident. Keep track of all time missed from your job as a result of the accident. Do this even if you are compensated by your employer 27

28 and/or lost income insurance. Don t forget to keep track of time missed for doctor appointments, physical therapy sessions and diagnostic testing. If you are self-employed, keep a detailed account of job income and opportunities that you either have to forgo or postpone. Make sure you can back up every item with corroborating witnesses or proper documentation. Virginia subscribes to the collateral source rule, which provides that the at-fault party does not get credit for special benefits from the victim s job or from any insurance that the victim has to protect their income and (usually) to pay their medical bills if they are injured in an accident. Keep a log of your daily activities. This doesn t need to be fancy, but be sure to include things such as what you are able and not able to do and how these compare to your activity level before the accident. Jot down any missed activities and why. Make special note of issues that occurred in the initial phase of your injuries such as headaches, nausea, specific pain and difficulty sleeping. Just as important as the things you must do to prevent your claim from being over before it even starts are the things you should not do. What You shouldn t Do: Don t talk to the insurance adjuster for the at-fault party other than to give general information and never allow the adjuster to take a statement from you. There is simply no benefit in this to you. Things you say can be taken out of context or misinterpreted. 28

29 Don t talk to the at-fault party about what happened or how you are doing. You ve heard it before anything you say can and will be used against you. Don t paint a rosy picture of your situation when talking to the insurance adjuster for your insurance company. When asked how we are, we often say fine even when we are not because we don t want to be seen as a complainer. We also tend to be optimistic and assume things will get better. While this is acceptable in an everyday conversation, it is not in a legal claim setting. What you say is taken literally. 29

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31 C h a p t e r 5 Determining The Value Of A Claim After you have reached maximum healing, and after you have gathered all of the relevant information regarding medical treatment and lost income, you are ready to make a demand on the at-fault party s insurance company. But first, you must evaluate your claim. Caveat: Remember that you ordinarily have only two years from the date of the accident to complete your settlement unless a suit has been filed. In order to evaluate your claim, you need to consider not only the total amount of your medical bills and lost wages, but what you feel would be a fair compensation for your pain, inconvenience and embarrassment. You also need to take into account if any of your injuries are permanent and if you now have to live with disfigurement or scarring. Another thing to consider is the relative likelihood of winning your case if you go to trial. In truth, weigh the odds of winning against losing. If your case ends up in trial, you need to consider the following: The jurisdiction (courthouse) and, thereby, the available jury pool where the case would be tried. 31

32 The first impression you will likely make on the jury. The first impression the at-fault driver will likely make on the jury. The impression that your health care providers will likely make on the jury, and the strength and content of their opinions as they relate to your injuries, their permanency and their etiology. The settlement and, therefore, the value of your claim are directly related to the risk/reward ratio of all parties involved. The victim wants to receive as much as possible for the claim. The insurance company wants just the opposite. Insurance adjusters are not rewarded on how fair their settlements appear. The dollar figure that the insurance company is willing to pay is based on the odds, as perceived by the insurance company, of it being hit with a much higher pay out figure at trial. The dollar figure that the victim should be willing to take should, therefore, also be based on these odds. Another important issue in evaluating your claim is to determine the extent of available coverage. If the defendant is not independently wealthy and, most are not your claim may be limited by the caps on the defendant s insurance policy and may be augmented by your own available policy limits. The amount you ask to settle your case should be considerably in excess of the actual dollar figure you determine. This will leave you room to negotiate. Since you are representing yourself without an attorney, you must be very careful. Your demand or any subsequent offer could be accepted by the insurance company, thereby completing a contractual arrangement and 32

33 foreclosing any future negotiations. You also need to be mindful that a ridiculously high demand can make it impossible to reach a successful settlement. As an accidental injury victim, you are entitled: To have your property damage fixed and/or to be paid the value of the damaged items as they were just prior to the accident. To rent a vehicle of substantially similar or better value than your own for the time, within reason, needed to fix or replace your damaged or totaled vehicle. To receive the amount of your medical bills without credit for amounts paid by your health insurance. To be recompensed for your lost wages, even if you were paid as a result of an employee benefit such as disability insurance or vacation pay. To be paid for your pain, inconvenience and embarrassment as well as interruption in your daily activities. To be paid for the diminishment of the quality of life. 33

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35 C h a p t e r 6 Conclusion As I have discussed throughout this book, if you are in a minor accident and sustain minor injuries, you should be able to negotiate a fair and reasonable settlement with the insurance company on your own without an attorney. But, if you are involved in a serious or substantial accident and have sustained serious or substantial injuries that have left you with a permament disability or disfigurement, or has significantly lessened the quality of your life, then you should hire an experienced accident attorney at your earliest opportunity. Your attorney will: Further educate you about your personal injury claim. Make arrangements to obtain and preserve all available evidence which will be crucial to a successful outcome. Serve as a buffer to protect you from falling into the numerous traps that the insurance company representatives are taught to set for those who are unaware of how they operate. 35