Copyright 2012 by Anthony K. Ferguson and Jennifer N. Ferguson

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2 Copyright 2012 by Anthony K. Ferguson and Jennifer N. Ferguson All rights reserved. No part of this book may be reproduced, stored in a retrieval system, or transmitted by any means, electronic, mechanical, photocopying, recording, or otherwise, without written permission from the authors. If you would like to use an excerpt from this book, kindly contact the authors and your request will be reviewed. Cover design by C SPIN Design

3 CONTENTS DISCLAIMER.. 1 FORWARD.. 2 ABOUT THE AUTHORS... 3 CHAPTER ONE THE BASICS OF AUTOMOBILE INSURANCE... 5 CHAPTER TWO WHAT S MY CASE WORTH?. 8 CHAPTER THREE MISTAKES THAT CAN WRECK YOUR CASE 12 CHAPTER FOUR HOW LIENS CAN AFFECT YOUR SETTLEMENT 16 CHAPTER FIVE A WORD ABOUT CONTINGENT FEE AGREEMENTS 20 CHAPTER SIX THE TRUTH ABOUT LAWYER ADVERTISING 22 CONCLUSION... 26

4 DISCLAIMER We wrote this book to provide general information to people injured in car accidents. It is not intended as legal advice, which would be the application of Maine law to your specific circumstances. Use of the information contained within the book will not create an attorney-client relationship. A written attorney-client agreement must be signed after an initial consultation in order to create an attorney-client relationship. 1

5 FORWARD You likely are reading this book because you or a family member has been injured in an accident. The accident is not your fault. There are a hundred questions running through your mind. Who will pay your medical bills? How will you support your family? Are your injuries permanent? Do you need a lawyer? Will the insurance company deal with you fairly? Is it necessary to go to court? We offer this book as a public service to those who have been injured in an accident. The book is intended to provide information about Maine accident law, to explain legal rights after an accident, and to help you find the right attorney for your case. 2

6 ABOUT THE AUTHORS Anthony and Jennifer Ferguson are not only partners in a law office, but are also partners in marriage. After graduating together from the University of Maine School of Law in May of 1983, they married in October of that year. They have worked together at Fales & Fales, P.A. since Anthony, known as Tony, grew up in Lewiston and graduated from Lewiston High School. He graduated from the University of Maine with highest distinction. He always had a passion for the law and graduated from the University of Maine School of Law cum laude. Following graduation from law school, Tony clerked for Justice Louis Scolnik of the Maine Supreme Judicial Court. After his clerkship, the local District Attorney, Janet Mills, hired Tony to head the Oxford County office. In 1986 Roscoe Fales invited Tony to join the Fales firm, where he has practiced ever since. Tony has tried hundreds of cases to verdict. He has a strong record of successfully handling a wide range of personal injury claims including car, truck, and motorcycle accidents. In 1996 an Androscoggin County jury returned what was reported as the largest personal injury verdict in the history of the State of Maine (4.4 million dollars) in a case tried by Tony. His peers recognize Tony as a skillful personal injury attorney. New England Super Lawyers magazine named him as a personal injury Super Lawyer. Law Dragon magazine identified him in 2007 as one of the top 3000 personal injury lawyers in America. Similarly, the National Trial Lawyers Association has named him as a top 100 trial lawyer in Maine for each year since Jennifer graduated from Cony High School in Augusta. She went on to the University of North Carolina at Chapel Hill where she graduated with honors in 1978 with a degree in economics. After working in Boston for an investment company, she entered the University of Maine School of Law. She was an editor for the University of Maine Law Review. She graduated from law school cum laude. Following graduation, Jennifer clerked for Justice Daniel Wathen of the Maine Supreme Judicial Court. After practicing law at another local firm for five years, Jennifer joined Fales & Fales, P.A. in The Maine Supreme Judicial Court has appointed Jennifer to a number of its committees. She was a member of the Maine Supreme Judicial Court s Advisory 3

7 Committee on the Rules of Evidence for many years and its chairperson from 1999 through She is a current member of the Maine Supreme Judicial Court s Committee on Judicial Responsibility and Disability. Jennifer has represented personal injury clients for nearly 30 years. She has obtained many large settlements and verdicts. Her professional integrity and wide range of litigation experience lead other lawyers to employ her as a private arbitrator and mediator of legal disputes. 4

8 CHAPTER ONE THE BASICS OF AUTOMOBILE INSURANCE Maine s mandatory insurance law requires every driver to insure their vehicle. Whenever a car or truck is registered in Maine, the owner must provide proof that the vehicle is insured. Auto insurance is comprised of several types of coverage: Liability insurance for personal injury; Liability insurance for property damage; Collision or comprehensive insurance; Medical payments (med pay) coverage; and Uninsured/underinsured motorists (UM) coverage. To satisfy the mandatory insurance law in Maine, every insurance policy must provide a minimum of $50, in personal injury liability insurance for an injury to any one person, $100, in personal injury liability for injuries sustained by multiple people in a single accident, and $25, in liability insurance for property damage. These coverages are oftentimes shown as 50/100/25 on your insurance policy declarations page. Some policies combine these coverages. A combined single limit insurance policy of $125, is acceptable under Maine law. A minimum of $2, for medical payment coverage also is required. Uninsured/underinsured motorist coverage is required in an amount equal to the liability insurance coverage for personal injury. Liability insurance for personal injury protects you when a claim is made by a person who has been injured in a car accident for which you are at fault. It also provides coverage for claims against a member of your family who was driving your car and lives with you as well as claims against a person who was using your car with your permission. Liability insurance for property damage pays for damage caused by you to another person s vehicle or other property. This coverage also protects family members who live with you and others who were driving your car with your permission. 5

9 Collision insurance pays for damage to your vehicle as a result of an accident. Maine law does not require Maine citizens to buy collision coverage. People often waive collision coverage for older vehicles, deciding that the low value of the vehicle does not justify the cost of the coverage. Collision insurance will have a deductible that you must pay toward the repair of your vehicle. Generally, once the cost of repair reaches a certain percentage of the value of the car (75%, for example), the insurance company will declare the car a total loss. When a vehicle is totaled, the insurance company will pay the actual cash value of the vehicle plus sales tax instead of the cost to repair. Because collision damage claims trigger your payment of your deductible, such claims generally speaking are made only if there is a dispute over who is at fault in the accident. If the other driver s insurance company accepts responsibility for the accident, the claim is made under the other driver s insurance coverage for property damage. The only exception that we have run across is the rare situation where your insurance company s valuation of a totaled vehicle exceeds the other company s valuation by an amount greater than the deductible under your collision coverage. Comprehensive coverage pays for damage to your vehicle caused by something other than a collision with another vehicle. Hazards covered under comprehensive include fire, theft, vandalism, floods, hailstorms, and other weather conditions. Medical payments coverage pays for the medical and funeral expenses incurred by you and any other person injured or killed in an accident while riding or driving in your car. If you were injured while occupying another vehicle, you can add or stack the medical payments coverages of the policy insuring the vehicle in which you were hurt and your own policy. Medical payments coverage is a type of no-fault insurance. It will pay medical bills even if you were responsible for the accident. As stated earlier, every automobile insurance policy issued in Maine must have at least $2, in medical payments coverage. If you also have other insurance available for payment of medical bills such as health insurance, Medicare, or MaineCare (Medicaid), the automobile insurance company pays first until it has exhausted its medical payments coverage policy limits. Be aware that if you receive a settlement or are paid after a trial for injuries from a car accident, you may need to repay the insurance company or governmental agency that paid your medical bills initially. We discuss this further in Chapter Four. 6

10 Uninsured motorist coverage provides protection to you, your family, and passengers in your car if injured due to the fault of: A hit and run driver; An unidentified driver who causes you to swerve off the road even if there is no contact between the vehicles; A driver who has no insurance (an uninsured driver); or A driver who has personal injury liability policy limits that are lower than your uninsured motorist policy limits (an underinsured driver). You need not be in a vehicle for uninsured motorist coverage to apply. It also protects you while walking or biking if you are hit by a vehicle. Like medical payments coverage, uninsured motorist policy limits of your own auto policy, the policy insuring the vehicle occupied by you at the time of the accident, and the policies of relatives living in your household may be added together or stacked. Under Maine law your uninsured motorist policy limits must equal your liability policy limits for personal injury unless you specifically elect a lower limit in writing. We recommend against electing uninsured motorist coverage that is lower than your liability policy limits. Uninsured motorist insurance is relatively inexpensive. If you were to limit the coverage, you could place yourself and your family at risk of insufficient insurance to an accident caused by another driver. If you may be entitled to uninsured motorist benefits, be careful about settling with the driver who caused your injuries. Settling with the driver without first obtaining the consent of the insurance company providing uninsured motorist coverage can in some circumstances destroy your right to uninsured motorist benefits. 7

11 CHAPTER TWO WHAT S MY CASE WORTH? One of the most common questions an accident attorney hears from a new client is What is my case worth? The answer almost always is We don t know yet. In all but the most minor of cases, it is almost impossible for a lawyer to tell you the value of your case at the first visit. Valuation requires investigation of the accident and analysis of your injuries and other losses. Be wary of any lawyer who states with certainty the value of your case during the initial visit. As you might expect, the value of any accident case depends on a number of factors including: Your degree of fault for the accident; The nature, extent, and duration of your injuries; The total amount of your medical bills, lost wages, and other losses resulting from your injuries; and The permanency of your injuries and whether there is any resulting disfigurement, scarring, impairment, or other disabilities. To recover compensation as a result of an accident, you must prove that the other person is at fault for causing the accident. Sometimes an accident results from the fault of two or more drivers. If you were one of the drivers and were partially at fault for the accident, the amount of your recovery may be reduced and may even be eliminated. Maine follows a modified comparative fault rule. By that we mean you are not entitled to receive any compensation if you were 50% or more at fault in the accident. If you were less than 50% at fault, you are entitled to compensation but your recovery may be reduced. It is reduced by an amount that the jury finds is just and equitable under the circumstances. We had a case where the jury found our client partially at fault, but decided it was just and equitable to order no reduction in the client s damages. This result is permitted under Maine law. 8

12 Maine differs from states that follow a pure comparative fault rule. In some states, you are entitled to damages even if you are more at fault for the accident than the other driver. In some states, damages are reduced by an amount equal to your percentage of fault for the accident. In those states, if you were 60% at fault for the accident, you are entitled to compensation from the other driver for 40% of your damages. Some types of damages are easier to calculate than others. If you have fully recovered from your injuries, the total amount of your medical bills is known. If your case involves a permanent or catastrophic injury, however, it is necessary to determine your future medical costs. In some cases your lawyer may consult a life care planner who will evaluate your injures, review your medical records, ascertain all of your future medical needs, and project the cost of your future medical care. Sometimes your health insurance company will negotiate a discount with your medical providers and your medical providers will accept the reduced payment as payment in full of your bill. Generally speaking, you nonetheless are entitled to recover the amount billed by your doctor and not the lower amount paid by the insurance company. You are the person who took responsibility for health insurance coverage, and you are the person who should reap the benefit of having that insurance. The fact that health insurance paid your medical bills should not benefit the person who injured you. Besides, you may be obligated to reimburse your health insurance company from your settlement or accident recovery. If you lost work because of your injuries, you are entitled to recover your lost income. If you are unable to work or had to find a less physically demanding and lower paying job because of your injuries, you are entitled to recover your lost future income. In addition to your lost income, you may be entitled to recover the value of your lost employment benefits such as health insurance, 401(k) or pension plans, bonuses, and other benefits. To value your lost future income and employment benefits, your lawyer may need to hire an economist to review your employment and tax records and calculate your future losses. Losses that are more difficult to value are pain, discomfort, loss of enjoyment of activities that your injuries prevent or limit you from pursuing, and inconvenience. Establishing a dollar value for these losses is not an exact science. It is your lawyer s job to explore with you how to best explain these losses to the insurance company and to a jury if the case proceeds to trial. We find that real life examples provided by your friends, family, and co-workers best demonstrate the impact of your injuries on your everyday life. 9

13 If your injury includes disfigurement, scarring, loss of some bodily function, or permanent limitation of motion or movement, the law entitles you to additional compensation. It may be necessary to hire a doctor to ascertain the degree of your limitations. There is no magic formula for determining the dollar value of such losses. Usually the value of a case depends on the extent and severity of the injuries. But there are many other factors to consider including: Whether you were partially at fault for the accident; How bad was the other driver s conduct; Whether there are witnesses to the accident; How you, how the driver at-fault, and how the witnesses will come across to a jury; Whether there are uncertain legal or evidentiary issues in your case; The extent of your pre-accident injuries or medical conditions; The court where your trial would be held; and Whether your lawyer has a history of trying cases or a history of settling every case. The list could go on and on. Suffice it to say that no two cases are alike. Two cases similar on the surface may have vastly different valuations. It takes someone with knowledge, skill, experience, and intuition to evaluate an accident claim. An experienced accident lawyer can anticipate and refute the arguments of the insurance company, present your claim in a good light, and obtain a fair resolution of your case. No one hurt in an accident wants to go to trial. Most cases are resolved before a lawsuit is filed. A lawsuit is filed when the insurance company forces you to sue either because there is a genuine disagreement over the value of your claim or because the insurance company will not make more than a low-ball offer to settle. Even when a lawsuit is filed, most lawsuits settle before trial. 10

14 From day one, an accident lawyer prepares your case as if it will ultimately go to trial. The accident is investigated. The facts are gathered. The witnesses are found. Your medical records, employment records, and tax returns are obtained. Experts are hired. The issues are understood. The ancient Romans had an adage, If you want peace, prepare for war. If the insurance company believes that your case is prepared for trial and your lawyer is willing to go to trial, it is more likely to pay a fair settlement. 11

15 CHAPTER THREE MISTAKES THAT CAN WRECK YOUR CASE Over the years we have seen a number of actions that can hurt a car accident personal injury claim. The most common are as follows: Putting off getting medical care after an accident; Failing to follow up with medical care; Talking to doctors about a legal claim; Forgetting to tell doctors and lawyers about past claims and injuries; Giving a recorded statement to the insurance company; Settling too early; and Delaying hiring an attorney. Putting off getting medical care opens the door for the insurance company to argue that you were not hurt in the accident. Sometimes people try to tough it out and delay treatment following an accident. They think that their pain or discomfort will improve or go away. The failure to obtain prompt medical attention if you are hurt in an accident not only could hurt your legal case, but also could delay or hinder your recovery from your injuries. Your stoicism can impact the value of your case. The more time that passes after an accident before you seek medical treatment, the more difficult it may be to prove that your injury related to the long ago car accident. In the eyes of the insurance company and some jurors, people who are hurt seek prompt medical attention. If you do not seek medical attention, the insurance company will argue you must not be hurt or your injury must be so minor that it is undeserving of compensation. If you are hurt in an accident, promptly see a doctor. The full extent of your injuries may not be obvious after an accident. Even minor injuries can get progressively worse and become chronic if left untreated. Also, your injuries may be 12

16 more severe than you initially realize. Some people believe they are slightly injured and just need a little time to heal, only to discover weeks or months later that they have a serious injury and require significant medical treatment. After an accident you should be seen by a doctor for a full examination. Tell your doctor about all of your symptoms, no matter how minor they may seem. This ensures that you will receive appropriate medical care, will recover from your injuries as promptly as possible, and will create a clear record of the nature and extent of your injuries. Failing to follow up with medical care also can adversely affect your case. Keep all of your scheduled medical appointments. If you must cancel an appointment, call your medical provider and explain why you must reschedule. If you miss appointments for no apparent reason, if your medical records document multiple no shows, or if you stop and restart treatment after a significant gap in time, it may appear that you were not injured after all. Talking to your doctor about your legal claim can be reflected in your medical record. What you say about your case, the insurance company, or your lawyer could be misconstrued in the medical record. Even if accurately recorded, it may give the appearance that your legal case is more important to you than your medical care. Let your doctor do what the doctor is trained to do help you recover from your injuries. Let your lawyer do what the lawyer is trained to do deal with the insurance company. Failing to recall past claims and injuries can give the impression that you are hiding your past history for purposes of financial gain. The insurance companies have an extensive data base about people who have been in accidents and who have asserted claims. In all but the most minor of injury cases, the insurance company will want to review your medical records from before the accident to be sure compensation is limited to injuries from the accident. You probably do not remember every single injury you have ever had, especially injuries that were minor or that healed quickly. You may not even remember that you made a particular legal claim in the past. Most jurors believe that everyone should remember making prior legal claims, especially if the claim was filed in court. Your lawyer will obtain not only medical records relating to treatment of your injuries from the accident, but also records for a number of years prior to the accident. It is important for your lawyer to know your full medical history. By giving the insurance company an accurate medical history, you avoid the appearance of hiding something. With an accurate medical history, your lawyer can counter any argument by the insurance company that your injuries pre-date the accident. 13

17 Giving a recorded statement to the insurance company generally is not a good idea. Insurance companies want recorded statements and push their adjusters to get them as soon as possible. You are unlikely to know the full extent of your injuries right after an accident. You may say that you are doing alright or okay when in fact you are not. The insurance adjuster may ask you loaded questions such as How could you have avoided the accident? You can make what initially appear to be innocent statements which the insurance company later uses to minimize your injuries or to undermine your case. You can be sure that the insurance company will not make its insured give you a recorded statement. We are not saying that recorded statements should never be given. They sometimes help you obtain a fair resolution of your case. A statement should not be given, however, until the full extent of your injuries is known, medical records have been reviewed to ascertain your pre-accident medical condition, and eye witnesses have been contacted about the accident. We never allow our clients to give a recorded statement without first doing a full investigation of the case. We always insist that we are present when the statement is given. If you are going it alone without a lawyer, do not give a recorded statement to the adjuster unless you are certain that a skilled personal injury lawyer would support that decision. Settling early can have tragic consequences. The insurance adjuster is not your friend. The adjuster has a job to do. Part of that job is to settle valid claims as quickly and as cheaply as possible. Insurance adjusters know that the accident may have put you in a financial pinch. Your money problems may tempt you to accept an early offer. Before the insurance company pays you, it will require you to sign a legal document, a release, in which you acknowledge that your injuries may be more severe that you realize and in which you agree not to make any additional claims for compensation. If you settle the case believing that you suffered a minor muscle strain when in fact you ruptured a disk in your neck, the insurance company will argue that the release protects it from paying any more money. We once represented a young woman under these very circumstances. The insurance adjuster settled the case for very little money knowing that the woman s doctor had scheduled an MRI (magnetic resonance imaging) to ascertain whether she had suffered a herniated disk. Fortunately, we uncovered evidence that the adjuster misrepresented the meaning of the release to our client and were able to obtain additional compensation for her. 14

18 To ensure fair compensation for your injuries, do not attempt to settle your case until you have fully recovered from your injuries. If you have suffered a permanent injury, do not settle until the damages resulting from the permanent injury have been fully evaluated. If your losses include future medical care, the extent and cost of that care will need to be established. If your losses include future wages and lost income, an economist may be needed to value the future loss. Remember, once you have settled your case, you usually cannot reopen it. Do not settle until you have recovered from your injuries or know the full extent of your injuries. Delaying hiring an attorney may have no impact on your case, but it may also destroy your case. There are a number of laws that limit the time for you to file a claim. If your accident involved a governmental entity or employee, you may have as little as 180 days in which to file a claim. If you are injured by a drunk driver and have a claim against a bar or restaurant for serving the driver when he or she was visibly intoxicated, you must file a claim within 180 days of the accident. If you fail to timely file a claim, you likely have no options to pursue compensation for your injuries. Delay may also impact your ability to investigate the case. With the passage of time, memories fade. Witnesses to your accident may no longer recall an important detail. We recently had a case where a security camera near the accident scene captured an important detail contradicting the other driver s version of the accident. Security tapes are often reused and taped over. It is important to determine quickly if important evidence exists on security cameras. If your injuries are catastrophic, or if a loved one died in the accident, an accident reconstructionist may be needed to establish how the accident happened. An accident reconstruction may be difficult or impossible to perform after evidence from the scene dissipates. It costs you nothing but time to meet with an accident lawyer for an initial consultation. Although the lawyer cannot learn everything from a single meeting, the lawyer should be able to advise you of the deadlines for filing a claim. The lawyer may also recognize potential issues or problems and may advise ways to avoid or to minimize them. 15

19 CHAPTER FOUR HOW LIENS CAN AFFECT YOUR SETTLEMENT In almost every accident case, a medical provider, insurer, or governmental agency claims entitlement to payment from your settlement or verdict award. It is important to identify potential liens before you settle your accident case so that you know how much of the settlement will go directly to you. Lien issues can be complicated. An experienced accident lawyer deals with them frequently. Your lawyer should help you understand the issues and should be able to advise you how the settlement proceeds will be disbursed. The most common lien issues concern: Unpaid medical bills; Automobile insurer medical payments; Health insurance; Medicare; MaineCare (Medicaid); and Workers Compensation benefits. We will review the general rules concerning each. Unpaid medical bills may have piled up. Your doctors and other health care providers often wait until the conclusion of your case for payment. Generally, either you sign an agreement with your provider or your lawyer writes a letter promising to pay the outstanding bill from your eventual recovery in the accident claim. These actions create a lien on your settlement and your settlement funds cannot be distributed to you until after your medical bills are paid. Your lawyer can sometimes negotiate discounts with your medical providers if there is insufficient insurance to compensate you fully for your injuries or if your recovery is reduced for another reason such as your partial responsibility for the accident. 16

20 Automobile insurer medical payments made under your own insurance policy or the policy insuring the vehicle in which you were injured may create a lien on your settlement. Because of changes in Maine law, lien issues involving payment of medical bills by automobile insurance companies can be complex. For a number of years Maine had a law invalidating these liens in cases settled for $20, or less. The Maine legislature, however, repealed the law in The date of your accident has important repercussions for the validity of these liens in relatively small accident cases. Additionally, automobile insurance companies asserting medical payment liens are required under Maine law to pay a fair share of attorney s fees and expenses incurred in obtaining your settlement or favorable verdict. Health insurance may have paid your medical bills. You can be sure your health insurance company will claim it is entitled to full reimbursement. The rules relating to reimbursement are complex. Health insurance companies often misstate their right to reimbursement. Your lawyer must obtain and review your health insurance policy to determine whether federal or Maine law applies. Federal law allows the insurance company under some circumstances to demand most or even all of the money you receive as a result of a car accident settlement. Maine law is much more favorable to you, the insured, than federal law. Which law applies depends on factors such as whether your insurance policy is an employment benefit and whether the employment sponsored insurance plan is self-funded. The issue is complicated, but an experienced accident attorney will have dealt with it on many occasions. The first step is to review your health insurance policy. The health insurance company never has greater rights of reimbursement than what the policy provides. We have had health insurance companies claim entitlement to reimbursement, even though no such rights existed under the policy. We cannot overstate the importance of reading the policy. Even if a policy states that the insurance company is entitled to reimbursement in full for the paid medical bills, Maine law may override the policy language. The health insurance company may not be entitled to any reimbursement depending upon the circumstances. Maine law requires approval by the Superintendent of the Bureau of Insurance of any insurance policy asserting reimbursement rights. Maine law also requires your approval of the reimbursement provision. Even if the insurance company is entitled to repayment, Maine law allows repayment on a just and equitable basis. If the insurance company and your lawyer cannot agree on a just and equitable reimbursement, the matter can be resolved in court. 17

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