TEN Things You Need to Know if You are Involved in a Car Accident in New Jersey By James S. Lynch and Arthur V. Lynch

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1 TEN Things You Need to Know if You are Involved in a Car Accident in New Jersey By James S. Lynch and Arthur V. Lynch

2 COPYRIGHT 2008 BY ACCIDENT BOOKS PUBLISHERS 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. This publication is intended to provide accurate and authoritative information about the subject matter covered. It is sold with the understanding that the author is not rendering legal or other professional services to his readers. If legal advice or other expert assistance is required, seek the services of a competent professional. Persons using this publication in dealing with specific legal matters should exercise their own independent judgment and research original sources of authority and local court rules. The publisher and the author make no representations concerning the contents of this publication and disclaim any warranties of merchantability or of fitness for a particular purpose. We view the publication of this work as the beginning of the dialogue with our readers. Periodic revisions to it will give us the opportunity to incorporate your suggested changes. Call us at (800) or send your comments to: Lynch Law Firm, P.C. 45 Eisenhower Drive Third floor Paramus, NJ

3 TEN Things You Need to Know if You are Involved in a Car Accident in New Jersey INTRODUCTION WHAT DO I DO AT THE ACCIDENT SCENE?... 2 If no one sees me, do I have to stop?... 2 Always Consider Safety First... 3 What information should I gather at the accident scene?... 4 Accident Scene Do s and Don ts... 6 Insurance Company Traps!! WHAT SHOULD I DO IF SOMEONE ELSE IS INJURED?... 9 How can I get help? WHAT SHOULD I DO IF I AM INJURED? Is there anything special I should keep in mind when seeing my doctors? AFTER AN ACCIDENT, NOTIFY YOUR INSURANCE COMPANY IF MY CAR IS DAMAGED, WHAT RIGHTS DO I HAVE? WHO WILL PAY MY MEDICAL BILLS AND LOST WAGES? How Much Medical Coverage is Available? How Much of My Lost Wages are Covered? Is there other coverage if I become disabled? Commercial Vehicles If my insurance company requests that I see one of their doctors, do I have to go? CAN I MAKE A CLAIM FOR PERSONAL INJURY? The accident was mostly the other person s fault. Now what rights do I have?18 Can I see my medical records? WHAT SHOULD I DO IF THE OTHER DRIVER DOES NOT HAVE INSURANCE? Personal Injury Uninsured motorist coverage (UM)...20 Underinsured motorist coverage (UIM)...20 Property Damage WHAT IF SOMEONE SUES ME? I was just served with a lawsuit, what do I do? Will my insurance company settle the lawsuit against me? What if I get a traffic ticket? OUR CIVIL JUSTICE SYSTEM Why We Have a Tort System What Are "Litigation Costs"? Are There Too Many Lawsuits? Are There Too Few Lawsuits? Are Jury Awards Too High? Punitive Damages Choice of lawyers SPECIAL BONUS SECTION:

4 WHAT ASSISTANCE OR INSURANCE COVERAGE AM I ENTITLED TO IF I BECOME DISABLED? Private Group Disability Policies - ERISA Claims Settlement of ERISA cases Long Term Disability vs. Short Term Disability Policy Definitions Private Non ERISA Disability Insurance Plans Temporary (Short-term) Disability Insurance Social Security Disability Benefits HOW DO I CHOOSE A GOOD PERSONAL INJURY ATTORNEY? Know the Truth About Lawyer Advertising HOW DO I FIND A GOOD LAWYER IN MY AREA? WHAT SHOULD I LOOK FOR WHEN HIRING AN ATTORNEY? ABOUT THE AUTHORS VERDICTS AND SETTLEMENTS OF JAMES S. LYNCH ACCIDENT SCENE CHECKLIST NEW JERSEY PERSONAL INJURY PROTECTION APPLICATION MEDICAL RELEASE FORM

5 TEN THINGS YOU NEED TO KNOW IF YOU ARE INVOLVED IN A CAR ACCIDENT IN NEW JERSEY Introduction We are both trial lawyers and we have each been practicing in the field of personal injury (which includes car accident cases) for almost 20 years. (James on the side of the injured party and Arthur primarily on the side of the insurance company.) In the past, we have written articles and books geared for attorneys. However, non-attorney clients, friends and family members often ask us questions about what rights people have and procedures they should follow if they are involved in an accident. This book has been written to try to answer those questions. We hope that as you read the book you gain information that will help you make the best decisions possible should you have an accident. The readers of this book will probably fall into two categories. The first category is someone who has obtained a copy of the book for future reference. (Good for you, we hope that you never need to use this book and will spread this information to others who may need the information now.) If you are the type who wants to try to protect yourself before an accident happens, you may want to consider reading our book for consumers on insurance entitled, The 10 Commandments for Buying Insurance: An Insider s Guide to Auto, Home and Life. The second category is someone who has been involved in an accident. Perhaps you have already been solicited by a letter sent to your home by a lawyer or insurance company. Perhaps a lawyer or insurance representative has called your house or worse, just shown up at your door or hospital bed without an invitation to give you good advice or to just sign a few forms. Please do not speak to them or sign anything before reading this book! This book will also provide an introduction to our justice system for claims involving car accidents. If you are already involved in a lawsuit or want to learn more detail about New Jersey s lawsuit process, we recommend that you read our book entitled, My New Jersey Lawsuit, which is a guide to help consumers understand each step of the New Jersey Lawsuit process. 1

6 1. What do I do at the Accident Scene? If no one sees me, do I have to stop? Yes. New Jersey law says you must stop whether the accident involves a pedestrian, a moving car, a parked car or someone's property. (N.J.S.A. 39:4-129). If you drive away, you can be charged with "leaving the scene of an accident" even if the accident was not your fault. You must also exchange information with the other driver, property owner or police officer your name address driver's license number registration certificate of the car you are driving the name and address of the car's owner the name and address of your insurance company your insurance policy number. Hit-and-run penalties are severe. Depending on damage or injuries, you may be fined, sent to jail or both. You could also lose your driver's license. If you hit a parked car or other property, you must try to find the owner or driver. If you cannot, the law says you may drive away only after you leave behind, in a conspicuous place, your name, address and an explanation of the accident, and the name and address of your car's owner (if other than yourself). You also must notify the local police, either by telephone or in person, as soon as possible. You must call the police if the accident caused a death or injury. An officer who comes to the scene of the accident will conduct an investigation. If an officer doesn't show up, you must make a written report on a form available at the police department as soon as possible. 2

7 Always Consider Safety First Important Tips: Drivers involved in minor accidents with no serious injuries should move cars to the side of the road and out of the way of oncoming traffic. Leaving cars parked in the middle of the road or a busy intersection can result in additional accidents and injuries. If a car cannot be moved, drivers and passengers should remain in the car with seatbelts fastened for everyone's safety until help arrives. Try to stay calm. Make sure to turn on hazard lights and set out cones, flares or warning triangles, if possible, starting at 50 feet behind your vehicle (don t use flares near leaking auto fluids). If your hazard lights are not working, consider tying something white or light colored to the antenna of your vehicle or raising the hood of your vehicle. Do not get out of your vehicle if the area you are in appears unsafe. Keep an Emergency Kit in you glove compartment or trunk You should have the following things in your car at all times: a cell phone, pen and paper for taking notes a disposable camera to take photos of the vehicles at the scene a card with information about medical allergies or conditions that may require special attention if there are serious injuries a list of contact numbers for law enforcement agencies a set of cones, warning triangles or emergency flares should be kept in the trunk. 3

8 What information should I gather at the accident scene? Since many records are now confidential under the law, you may not be able to obtain the information about the other driver from the New Jersey Motor Vehicles Services. So, be sure to get as much correct and complete information as you can at the scene of the accident. You and the other driver should show each other your driver's licenses and vehicle registrations. Also, you should record: 1. The other driver's name, address, date of birth, telephone number, driver's license number and expiration date, and insurance company. 2. The other car's make, year, model, license plate number, and vehicle identification number. 3. The names, addresses, telephone numbers and insurance companies of the other car's legal and registered owners if the driver does not own the car. 4. The names, addresses, dates of birth, driver's license numbers and telephone numbers of any passengers in the other car. 5. The names, addresses and telephone numbers of any witnesses to the accident. Ask them to stay to talk to the police. If they insist on leaving, ask them to tell you what they saw and write everything down. 6. Try to identify people at the accident scene, even if they will not give their names. For example, if someone who saw the accident drives off, take down his or her license plate number. Law enforcement officials can trace the owner's name and address. 7. The name and badge number of the police officer who comes to the accident scene. Ask the officer where and when you can get a copy of any accident report. 8. A simple diagram of the accident. Draw the positions of both cars before, during and after the accident. If there are skid marks on the road, pace them off. Draw them on the diagram, noting the distance they cover. Mark the positions of any crosswalks, stop signs, traffic lights or streetlights. However, do not place yourself in a position of danger in order to complete an accident diagram. Be aware of traffic 4

9 conditions and skip any measurements that could place you in a position of harm. Make notes, too, on weather and road conditions. If the accident happened after dark, note whether the streetlights were on. Estimate your speed and that of the other vehicle. Be sure to record the exact time, date and place the accident happened. At the end of this book, I have included a fill-in-the blank checklist that includes all of the information that you should collect at the scene. Just make a photocopy of it and keep it in your glove box. A picture is worth a thousand words If there is debris or skid marks from the accident, think about returning and taking photos. Take pictures of your vehicle to establish the extent of damage and points of impact If you have bruising or other observable injuries; document them with photographs. 5

10 Accident Scene Do s and Don ts Do Not engage in an argument with the other driver. In the heat of the moment you may say something that is inaccurate which can be used against you in the future. Do tell the police your version of what occurred, as simply as possible. Be courteous to all police officers. You may need them to testify in court on your behalf for your property damage or injury claim. You want them to remember you kindly. Do Not accept fault for the accident. One or both drivers may be at fault. Quite often, your initial thought might be: If I was paying closer attention, this accident may not have happened. Remember: The other driver may be thinking the same thing. Do Not accept monetary compensation at the accident scene or sign any type of release. At an accident scene you are under extreme stress. Cool off, think about things, fully assess your damages, then you will be in a fair position to negotiate. 6

11 Watch Out For: Insurance Company Traps!! Trap 1. Immediate Response Teams Sometimes insurance companies send investigators to the scene. These people are not your friends. Their interests are adverse to yours. As always, be courteous; however, do not discuss any aspect of the accident or your injuries with the other driver's insurance company representative. Tip: No matter what that the other driver s insurance investigator tells you, you are not obligated to be interviewed. Trap 2: Your own insurance company may want to prove the accident was your fault! Hopefully you have purchased uninsured or underinsured motorist coverage for any accident. (Meaning that if the other driver is uninsured or underinsured, your insurance company will take his place and pay your claim). This means, however, if the other driver is uninsured or underinsured, your insurance company has the same interests as the driver that struck your car in proving that: (1) the accident was your fault; and (2) you suffered no property damage or injury as a result of the accident! Be careful what you say or write to your own insurance company. If you leave something out or describe something wrong, they will use it against you. 7

12 Underinsured/Uninsured Motorist Coverage may be the most important coverage you have on your automobile policy. Many consumers do not even know what it is! We have co-authored a book entitled The 10 Commandments for Buying Insurance: An Insider s Guide to Auto, Home and Life. We feel that educating consumers on these issues is important. We would be happy to share this book with you for free. Please visit for details. Trap 3: Your insurance company wants to prove that you were not injured! Under New Jersey law, if you are injured in a car accident, your own car insurance company will likely being paying your medical bills and your lost wages, no matter who is at fault for the accident. (See section 6 below entitled Who will Pay My Medical Bills? ). However, your insurance company does not want to pay those bills. As such, if there is a way to avoid paying those bills, your insurance company will find it. This includes: arguing you are not hurt, sending you to frequent medical exams with a doctor of their choosing (who has an interest in saying you need no further treatment), arguing your painful injuries are not from your car accident, but are simply the result of aches and pains associated with the aging process and denying your claim)!! HOWEVER -- Do not refuse to cooperate with your insurance company. Under the terms of your insurance policy, you are required to cooperate with them in investigating the claim or they will disclaim coverage. This may mean giving them various information, including a statement. In light of the above, however, it is prudent to seek the advice of legal counsel prior to making any statements or submitting any documents to any insurance company. 8

13 2. What should I do if someone else is injured? The law requires you to give reasonable assistance to injured persons. For example, you may need to call an ambulance, take an injured person to a doctor or hospital, or give first aid. (If charged with leaving the scene, it is not a defense that you did not know someone was injured. As long as you knew there was an accident, you have an obligation to determine if there were injuries, and to assist those who are injured). (N.J.S.A. 39:4-129(c)) If you are not trained in the appropriate first aid procedures, do not move someone who is badly hurt; you might cause further injury. However, you should move someone who is in danger of being injured further or killed (for example, in a car fire) even if you do worsen the injury. To help prevent additional collisions, try to warn other motorists that an accident has occurred. To warn other motorists, you can place flares on the road (only if there are no flammable fluids or items nearby), turn on your car's hazard lights or lift your engine hood. Arrange to get help for any injured persons, and try not to panic. How can I get help? As soon as you can get to a telephone, call 911. Dialing 911 will get you both the police and an ambulance. Explain the situation and give the exact location of the accident, so that help can arrive quickly. Be sure to mention whether you need an ambulance or a fire engine. Remain on the telephone until the operator tells you it is okay to hang up. If you have no cell phone, flag down a passing car and ask the driver for assistance. The driver may have a cellular phone in the car and can make an emergency call on the spot. If not, perhaps that driver can find a police officer or someone with a cell phone. 9

14 3. What Should I Do if I am Injured? Get your injuries cared for immediately at the emergency room in a local hospital or at your personal physician's office. Tell the examining doctor every complaint and injury you have, no matter how minor you may think it is. A serious internal injury may not be evident immediately. Help your doctor help you. It is very likely that there will be medical coverage for your medical bills under the Personal Injury Protection (PIP) portion of one of the vehicles involved in the accident. See the Chapter 6 below entitled Who will Pay my Medical Bills? Is there anything special I should keep in mind when seeing my doctors? When reporting to doctors, take extra care to identify specific complaints; take with you a list of all complaints and tell the complete truth. If something does not feel "right," your doctor needs to have this information in order to render an informed medical opinion. Even though you feel it is "no big thing" now, a dry mouth, a light headache or a little dizziness, may be evidence of something more serious. If you have banged your head, make sure the doctors know about it. Anything that is out of the ordinary is a symptom and should be reported to assist your doctor in making an informed diagnosis. For example, an accident victim who has slight tingling in the fourth and fifth fingers and neck pain, may not report the tingling sensation, which could be the sign of major disruption to a cervical disc. If that disc becomes a complete rupture that requires major surgery it will have been far better to have had the initial medical entry. This will help show that the onset of the injury was the accident, and not picking up a bag of groceries three weeks later, as the insurance company doctor will argue to the jury. 10

15 Keep receipts of everything and maintain a calendar of post-accident events that will help you recall the days you could not work, were unable to enjoy your leisure time or had to spend a Saturday at the physical therapist. No matter whether it is a personal injury claim or any action in which you are the plaintiff, keep a fully detailed record of the harm you suffered. 11

16 4. After an Accident, Notify Your Insurance Company As soon as you have taken care of everything at the scene of the accident, notify your insurance agent. Most agents will accept first notification of an accident on their voice mail after hours. If you fail to tell your insurance company about an accident they may disclaim coverage if a claim is later made against you for property damage or personal injury. There are certain forms, such as an Application for Personal Injury Protection Benefits that need to be submitted to your insurance carrier within a short period of time. If you fail to timely submit these forms, your insurance company will refuse to pay your medical bills and lost wages. I have annexed a copy of the standard form Personal Injury Protection Benefits application at the end of this book. Tip: Immediately advise your insurance company as soon as possible about date, time, place of accident. If you feel any injury, tell them you were injured. Say nothing further. Advise them that your attorney will discuss the matter further with them. Call an attorney who is experienced in personal injury/property damage/insurance matters. Please read the section below on how to choose an attorney. 12

17 5. If my Car is Damaged what Rights do I have? If you have Collision Coverage on your auto policy, then, regardless of fault, your own insurance company will pay for the damage to your vehicle, less any deductible. Further, if the accident was not your fault, your automobile insurance carrier will make a claim against the other driver through an arbitration process to obtain the money it paid you for the damage to your car. In that proceeding, they will seek full reimbursement, including your deductible. If they recover your deductible, they will pay it back to you. If you do not have Collision Coverage, or you simply do not want a make a claim under your own policy, you can make a claim directly with the other driver s insurance company for your property damage and any reasonable amount you pay for a rental car due to the loss of use of your vehicle. Further, now that your car has been damaged, its total re-sale value may be lessened. You are entitled this diminution value as well. 1 The other driver's insurance company has a duty to negotiate with you in good faith. However, if they have difficulty getting in touch with their insured or their insured gives a version of the accident that provides them with a defense to your claim, they may: (1) delay in making you any offer until their investigation is complete and (2) they may offer you a small percentage of your total claim. If you are dissatisfied with the offer that the other driver s insurance company makes you, you are not obligated to accept it. If you feel they are not negotiating in good faith, you can make a complaint to the insurance department. However, that is not likely to get you anywhere. Depending on the size of your property damage claims, you can sue in the various courts in New Jersey. Including, Small Claims Court, Special Civil Court, and Superior Court. 1 The N.J. Courts have recently changed the law to allow recovery for lessened re-sale value as a result of an accident. Many insurance adjusters will still argue with you that this loss of value is not recoverable in New Jersey. They are wrong! 13

18 Tip: If your property damage claim is $3,000 or less, you can bring your claim in Small Claims Court and probably do not need an attorney The procedures are made for people with little or no legal experience. You can obtain all of the forms for free on the New Jersey Courts website, which is: 14

19 6. Who will Pay my Medical Bills and Lost Wages? In most cases, you have the right to have your medical bills paid and your wage losses reimbursed, subject to certain deductibles and limitations. This comes from the Personal Injury Protection (PIP) coverage on your automobile insurance policy. You receive this coverage whether or not you were fault for an accident, and regardless of whether you were a driver passenger or pedestrian. If you do not have your own policy of car insurance, you are covered by the policy of the vehicle you were driving or in which you were passenger. Further, if a family member in your household has car insurance with PIP coverage, but you do not have car insurance, you will have coverage under their policy. How Much Medical Coverage is Available? There are a variety of choices a consumer has today relative to his or her auto insurance. These choices will affect how much coverage, if any, that consumer and his family members will have to pay medical bills and lost wages from an accident. If you purchase a standard New Jersey policy, your insurance company is required to pay reasonable and necessary medical expenses up to $250,000 per person per accident. However, you may elect lower limits of medical expense benefits in the amounts of $15,000; $50,000; $75,000 or $150,000. If you select a basic policy, your medical expense benefits will be limited to $15,000. Further, the payment of medical bills is subject to a statutory deductible of $250 and a co-payment of 20 percent up to $5,000 per person per accident. This means that you may be required to pay $1,200 of the first $5,000 of medical expenses. In addition, you may elect higher deductibles in the amounts of $500, $1,000, $2,000 and $2,500. If so, you will be required to pay more of your own medical bills. 15

20 How Much of My Lost Wages are Covered? If you purchase a standard policy, you will receive additional PIP benefits including an income continuation benefit of $100 a week for 52 weeks; essential family or household services of $12 a day for 365 days; a death benefit; and funeral expenses of $1,000. You may purchase additional income continuation benefits up to $700 a week for two years or as long as the disability persists; essential services of $20 a day for two years; funeral expenses of $2000; and an additional death benefit of $10,000. On the other hand, you may choose to exclude all additional PIP benefits. If you select a basic policy, you will not receive any additional PIP benefits. Tip: Purchase a Standard Policy with $250,000 in medical benefits. Many car accidents result in serious injuries. A few days in intensive care, followed by a short hospital stay can easily produce bills exceeding $100,000. Is there other coverage if I become disabled? Yes. In this book, I have included a special section that discusses disability issues and claims. Available sources of coverage are private disability plans, state disability plans and Social Security disability. Each is discussed in detail beginning on page. Commercial Vehicles The New Jersey insurance structure gets more complicated when dealing with commercial vehicles, such as tractor trailers, buses, commercial trucks and vans. These vehicles are generally not required to carry PIP coverage. As such, if you do not have your own car insurance, and are a pedestrian struck by a vehicle that does not carry PIP coverage, you would need to file a claim with a New Jersey fund, that may provide coverage for your medical bills and lost wages. This fund is known as PLIGA. You must notify NJ-PLIGA of your intention to make a claim within 180 days of the date of the accident. 16

21 If my insurance company requests that I see one of their doctors, do I have to go? Yes. We call this a defense examination. You have no say in selecting the doctor. The doctor is working for the insurance company and being paid by the insurance company. The purpose of the exam is not to help you get better. Most importantly, this insurance company doctor will, in many cases, disagree with your treating doctor. The law and your insurance policy require you to cooperate with the insurance company that is paying your medical bills. This means if you refuse to go to the exam, the insurance company will be allowed to terminate your benefits. Unfortunately, even if you go to the exam, the doctor is likely to say what the insurance company wants to hear, and you'll probably be cut off anyway. As you can see, this can be a very important time with regard to your claim. Due to the complicated insurance structure and New Jersey, it is suggested that you retain an attorney who is experienced in handling personal injury/insurance claims to help you deal with your lost wage claim and your medical claim. 17

22 7. Can I make a claim for Personal Injury? That depends. If your fault is greater than the other driver (or responsible party) for the happening of the accident, you cannot make a claim for personal injuries arising out of a car accident in New Jersey. The accident was mostly the other person s fault. Now what rights do I have? If you were less than 50% at fault for the accident, you may be eligible to receive payment for medical bills, lost wages, pain and suffering, disability and loss of enjoyment of life, or death. When you are hurt in a car accident, you have lost something: your health, your ability to do the things you enjoy, income, time with your family and friends, etc. The money you receive for your losses isn't a prize or a gift. It's compensation for something you have lost. You are not coming out "ahead" and you're not taking advantage of the system. Our state and federal constitutions make it a fundamental right for citizens to recover their losses. What you are going through is real. And, you are entitled to make a claim if you decide it's in your best interest to do so. The nature and extent of your injury may bear on whether you can make a claim, depending on the type of insurance you have purchased. If you have purchased an insurance policy with a Limitation on Lawsuit Threshold, then you would only be eligible to make a claim if you have more serious injuries. Information about the severity of your injuries usually comes from your doctor in a medical report in which he or she comments on your injuries. Doctors often wait at least a year after the accident to issue a final medical report. Another important factor is how your injuries affect you. For example, a broken finger to most people is not that severe an injury. If you happen to be a concert pianist, however, a broken finger can be a terrible loss. Thus, it's important that we know a lot about you and how your injuries have impacted your life. Other factors include the amount of your medical bills, the amount of your wage loss, whether you have any scars, what impact your injuries will have on your future earning capacity and a host of other issues. In New Jersey, the statute of limitation for bringing a lawsuit for injuries that result from a car accident is two (2) years from the date of the accident if you are an adult or until your 20 th birthday if you were under 18 on the date of the 18

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