1 Car Accidents & Insurance Claims: What You Need to Know I. Introduction December 18, 2013 Presented by: Anthony F. Gorospe Gorospe & Smith Law Firm 1825 E. 15 th Street Tulsa, OK Phone: Fax: The most common personal injury claim involves motor vehicle accidents. Given the number of traffic collisions, serious and otherwise, all lawyers at some point will find themselves dealing with a client that has been injured in a motor vehicle accident. This basic course is designed to get an attorney off and running when they are faced with a client that has been damaged in a motor vehicle accident. Recent poll regarding the most dangerous states for traffic fatalities: Oklahoma ranked 9 th most dangerous. 9. Oklahoma > Average auto fatalities per 100,000: 19.5 > Auto fatalities/year: 711 (21st most) > Lifetime medical costs due to 1-yr. auto accidents: $5,896,988 (23rd highest) > Lifetime work loss costs due to 1-yr.auto accidents: $657,831,325 (22nd highest) > Pct. commuters traveling 30 mins. or more: 24.91% (10th lowest) Oklahoma averaged 711 fatalities each year from auto accidents between 2007 and 2009, or 19.5 for every 100,000 residents. In one year, medical costs incurred from the state s auto injury fatalities were estimated at just under $5.9 million. Oklahoma has yet to adopt mandatory ignition locks for all convicted drunk drivers, universal helmet laws for motorcyclists, or booster seat requirements for all children under eight. Oklahoma has had a primary seat belt law on the books since 1987, but fines firsttime offenders only $20 for being unbuckled. Only seven states with primary seat belt laws levy lower fines. Recently, motor vehicle fatalities have actually increased. The Oklahoma Department of Public
2 Safety reported an uptick in auto fatalities in March Compared to the same month last year, there were 20 more fatalities for a total of 59. II. Interviewing new client/intake sheet: First off, be professional. Look and act like a lawyer. Although you may have a client roster of 100 clients, this is likely the first time this potential client has gone through something like this. They will need compassion and someone to listen to their problems. When setting up the initial interview, ask the potential client to bring with them all of the documents they have in their possession that relate to the MVA. They may already have insurance correspondence, police reports, photos, medical bills, medical records, etc. During the initial interview it is important to find out as much information about your client as possible. At the very least you need to gather during initial client interview: contact info, insurance info, medical info, employer info, documentation, photos, etc. The intake sheet helps guide you through the initial client interview. It is important to gather get as much information as you can so you eliminate surprises and save time in the future. You will be surprised in the future if: you didn t know about the 17 prior MVA injury claims, 5 prior WC claims your client has made in the past 4 years, you didn t know about the felony convictions for sexual abuse, you didn t know about the dishonorable discharge from the military, you didn t know that your client was making a video for Facebook when the accident occurred. You will save time in the future by not having to track your client down for information that you could have obtained in the initial client interview. Get an idea about what your client expects. Note how this person comes across to you in the initial client interview. How they come across to you at this moment is how they will come across to a jury in the future. The Intake sheet will be a valuable resource tool. You will want to completely fill this out when you intake a client. Don t just rely on your client to write everything down, do it for them you get much more information that way. A. Intake Form: The one I use: Auto Accident Collision Intake Sheet
3 Your name: Today s Date Address: Best phone number to reach you: Emergency contact: Phone no: DOB: SSN: Date of Accident: Time: am/pm Location of Accident: Was law enforcement called? Y/N What law enforcement agency? Do you have Collision Report Number? Y/N Collision Report Number Describe how the accident occurred: Where you the driver or passenger? (circle one) List any witnesses to the accident: Describe any communication you had with anyone at the scene: Describe your injuries: Prior to your accident have you ever injured or sought medical treatment for the same body parts that were injured in this accident? Y/N If yes, please explain: Was an ambulance called to the scene? Y/N Were you taken to a hospital by ambulance? Y/N List all medical providers seen since the accident and approximate dates seen:
4 Have you made prior insurance claims? Y/N If so, please explain: Have you missed work due to your injuries? Y/N Where are you employed? How long employed? Salary/Wages What is your job title? What are your job duties? Name of you immediate supervisor At fault party s auto insurance information: Insurance Company Adjuster name Claim Number Adjuster Address: Adjuster phone number Adjuster fax number Your auto insurance information: Insurance Company Insurance Agent name Insurance agent phone number Insurance agent address If a claim has been made to your auto insurance company please provide the following: Adjuster name Claim Number Adjuster Address: Adjuster phone number Adjuster fax number Your health insurance information: Health Insurance Company Subscriber ID Do you receive Medicare? Y/N ID No: Do you receive Medicaid (Soonercare)? Y/N ID No: Did you take photos of the damage to your vehicle? Y/N
5 Did you take photos of the accident scene? Y/N Did you take photos of your injuries? Y/N How did you hear about our law office? B. Contract for legal services: This important document gives the client an understanding of how you are going to be compensated for representing client in their motor vehicle accident case. Further, this document explains the various duties you will owe to your client and, conversely, your client will owe to you during the time of representation. It is important to go over each item with your client so that they are not surprised by anything when it comes time to disburse your fee, etc. The most common fee agreement in personal injury MVA cases is the contingency fee. Of course, you can have another form of compensation (hourly, flat fee) should that agreement make sense to you and your client. Fee agreements other than contingency fee are not very common given the unknown hours that may go into the case. Ethical considerations regarding the attorney fee contract: FEES (Title 5, Rule 1.5) a. MUST BE REASONABLE: A lawyer s fees shall be reasonable!!! There are eight (8) things to consider when determining the reasonableness of your fee: 1. the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; 2. the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; 3. the fee customarily charged in the locality for similar legal services; 4. the amount involved and the results obtained; 5. the time limitations imposed by the client or by the circumstances; 6. the nature and length of the professional relationship with the client; 7. the experience, reputation, and ability of the lawyer or lawyers performing the services; and
6 8. whether the fee is fixed or contingent. b. IN WRITING (Preferably), the Scope and Basis OR Rate of Fee shall be communicated to the Client before commencement of representation or within a reasonable time after representation begins. Any changes in basis or rate of fee shall also be communicated to the client. ** Use some common sense c. CONTINGENCY FEES: SHALL: 1. Be in Writing, 2. Signed by the Client, 3. State Method by Which Fee is Determined, 4. Include Percentages Accruing to Lawyer at Settlement, Trial and/or Appeal, (this is usually 25-50%) 5. State Litigation/Other Expenses to Be Deducted From Recovery, 6. Whether Expenses Are Deducted Before/After Contingent Fee is Calculated, and 7. Must Notify Client of Expenses For Which They Are Responsible, Regardless of Outcome, SHALL NOT: 1. Include any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or 2. a contingent fee for representing a defendant in a criminal case. 3. Greater than 50% of the recovery. The one I use. NAME: ADDRESS: Re: **client name** **client address** Engagement of Gorospe & Smith Law Firm Dear: Ms. **,
7 This letter is to confirm your retention and engagement of Gorospe & Smith PLLC (the Firm ) as your attorneys. Scope of Engagement The Firm is engaged to provide legal services for you on the following matter ("Matter"): 1. Providing advice and counsel regarding the motor vehicle accident occurring on or about *** in ***, OK. 2. Preparation of all documentation and correspondence necessary to reach a possible settlement of any and all claims submitted in reference to your recent motor vehicle accident. 3. File suit and litigate your lawsuit as necessary to reach verdict in reference to your recent motor vehicle accident. For this particular case, the Firm operates on a contingency fee basis. The Firm s fee is contingent upon the recovery of any settlement proceeds from any applicable insurance policy negotiated on your behalf or recovery of any verdict obtained on your behalf. If the Firm fails to recover any settlement proceeds through the negotiation process, there is no fee. If the Firm fails to secure a judgment during trial or otherwise, there is no fee. If there is no recovery of money in reference to your case, there will be no cost to you. The Firm s contingency fee schedule applies accordingly: If a settlement is negotiated and secured prior to filing a lawsuit in this matter, the Firm s fee will be thirty percent (33.33%) of the negotiated settlement. If the Firm files a petition (lawsuit) on your behalf, then the Firm s fee will be forty percent (40%) of any negotiated settlement after said petition is filed. In the event that jury selection has begun and at any time thereafter, the firm s fee will be fifty percent (50%) of all monies returned on your behalf, whether your case is tried to verdict or not. Costs and Expenses Costs and expenses during the course of the representation will be born by the Firm and ONLY be born by you in the event that there is a settlement negotiated on your behalf or a judgment awarded to you by either a judge or jury. These will include charges for various costs and expenses incurred on your behalf throughout litigation. Costs are items incurred in house by the Firm. Expenses are incurred through invoices from a third party. Typical cost items include, but are not limited to: photocopies and postage. Typical expense items include, but are not limited to: long distance telephone, courier or messenger services, travel expenses, filing and recordation fees, purchasing medical records, expert witness costs and fees for court reporters and depositions. Costs will be charged under the Firm's standard practices for assessing and charging costs to its clients. Expenses will be passed through to you at actual cost.
8 General Responsibilities It is understood and agreed that you will cooperate fully and candidly with the Firm with respect to the legal services the Firm performs; and will provide all information known by or available to you which may aid the Firm in representing you and performing this engagement. You will be available to the Firm for consultation on reasonable notice and will provide such decisions or directions as the Firm may need for the appropriate handling of the legal services to be performed for you. If you perceive any actual or possible disagreement with the Firm or the Firm's handling of the legal services involved, it is understood and agreed that you will promptly and candidly discuss the problem with the Firm. The Firm agrees to keep you informed as to the status of the legal work involved and as to the course of action that is being followed or is being recommended by the Firm. The Firm encourages you to participate as directly as reasonably possible in all major decisions involving the legal services. Termination of Representation The Firm reserves the right to withdraw from the engagement if you do not comply with the terms of this engagement letter or for any just reason permitted by the Rules of Professional Conduct as adopted by the Oklahoma Supreme Court. You have the right to terminate this engagement without cause. Notification of termination or withdrawal will be made in writing and will be effective upon receipt. Upon termination or withdrawal of this engagement, the Firm agrees to cooperate with any successor counsel to accommodate a smooth and orderly transition of the representation. Governing Law This engagement letter shall be interpreted and enforced in accordance with the laws of the State of Oklahoma. Effort and Outcome The Firm agrees to competently and diligently represent you with respect to the legal services involved. However, you understand and acknowledge that the Firm has given no assurances regarding the outcome of the legal services that are to be performed. Commencement of Representation Representation commences as soon as the Firm is in receipt of a copy of this signed letter indicating your willingness to engage the Firm s services. Limited Power of Attorney
9 The Firm is hereby granted a limited power of attorney so that he may have full authority to prepare, fully execute, sign and file all legal authority to pleadings, drafts, releases, authorizations and papers as shall be reasonably necessary to conclude this representation including settlement and/or reduce to possession any and all monies or other things of value due to Client under this claim as fully as Client could do so in person. Retention of Files It will be your responsibility to retain your own copy of documents forwarded to you by the Firm. The Firm will endeavor, subject to events or circumstances beyond its control, to retain and maintain the major and significant components of the Firm's files relative to this legal work for a period of at least three (3) years following the conclusion of it. Subsequent Matters In the event that you engage the Firm to handle subsequent matters, then unless otherwise agreed in writing between you and the Firm, those subsequent matters will be governed by the terms and conditions of this engagement letter. Integration This engagement letter contains the entire agreement between you and the Firm regarding the legal services described and the fees, costs and expenses relative to those services. This engagement letter will not be modified except by written agreement signed by you and the Firm. This engagement letter is intended to be binding upon you and the Firm and your and its respective heirs, executors, legal representatives and successors their respective heirs, executors, legal representatives and successors. We appreciate the opportunity to provide these services to you, and your taking the time to consider and complete this engagement letter as a beginning step in their accomplishment. Please sign a copy of this letter in the space provided and return it promptly to the Firm. Client Date REMEMBER YOU ARE STILL EVALUATING THIS POTENTIAL CLIENT JUST AS THE POTENTIAL CLIENT IS EVALUATING YOU. You learn much about the potential client when going over your fees. ***When using a contract like the above make sure your client knows that you get paid out of the total settlement, not after medical bills are paid, not after costs are subtracted, etc. Use examples so that everyone is on the same page.*** Make sure that your client has realistic expectations of the value of her case. Make sure YOU have realistic expectations of the value of
10 her case. I promise that this understanding will help you out in the end. Again No real or perceived surprises!*** Oklahoma Statutes Citationized Title 5. Attorneys and the State Bar Chapter 1 - Attorneys and Counselors Section 7 - Contingent Fee - Limitation on Amount-Compromise or Settlement - Effect on Liens - Contract Void When Layman Secures or Has Any Interest Therein Cite as: O.S., It shall be lawful for an attorney to contract for a percentage or portion of the proceeds of a client's cause of action or claim not to exceed fifty percent (50%) of the net amount of such judgment as may be recovered, or such compromise as may be made, whether the same arises ex contractu or ex delicto, and no compromise or settlement entered into by a client without such attorney's consent shall affect or abrogate the lien provided for in this chapter. Provided that all such contracts in personal injury or wrongful death cases including, but not restricted to, cases in which jurisdiction is in the Industrial Commission, shall be void and unenforceable (1) if secured as a result of the intervention of any laymen, association, or corporation for compensation, or promise of compensation, or anticipation of gift, compensation or hope of reward, or (2) where any laymen, association or corporation has a direct or indirect interest in, or growing out of, any judgment arising out of such claim recovery or compensation from, or settlement of any such claim. C. Medical Authorization: Your client s medical records and bills are going to provide you with the evidence needed for your personal injury medical damages claim. Further, you may need to speak with a medical professional about your client s protected medical information. As such you will need to authority to request and receive the medical information regarding your client. Discovery of medical records and information still requires written consent by the patient or the use of a subpoena or court order. However, the form that must now be used is different in light of HIPAA. (HIPAA uses the term authorization; many lawyers use the term release; consent is used here.) HIPAA uses the words consent and authorization as terms of art, both with a different meaning. A consent under HIPAA is a document which will authorize the use of health care information for treatment, payment or health care operations. An authorization under HIPAA is a document signed by the patient that will allow the disclosure of health care information for the purpose stated on the release. Under 42 C.F.R. Part 2, the word consent is used in the same manner as HIPAA uses the term authorization. Oklahoma law regarding mental health and substance abuse treatment records uses the terms release and consent interchangeably. Whatever title an attorney decides to place on the document authorizing disclosure of records, the elements of state and federal law must be contained in the document and are spelled out below. State law requirements regarding release of health care information continue to apply, where not preempted by HIPAA, and must also be followed. Attorneys who fail to use a valid consent form containing all the required elements likely will have the form returned to them without any records.
11 A consent for release of ordinary medical records which complies with Oklahoma law and HIPAA must contain: (a) A detailed description of the information to be disclosed; (b) The name or title of the person or entity authorized to release the information; (c) The name or title of the person or entity to which the records are to be disclosed; (d) A description of the reason or purpose for the requested disclosure; (e) An expiration date or event; (f) The dated signature of the individual authorizing the release, and if the individual authorizing the release is someone other than the patient a description of such representative s authority to act for the patient; (g) A statement the consent may be revoked in writing unless certain exceptions apply; (h) A statement indicating the potential for the information disclosed to be redisclosed and no longer protected by the requirements of HIPAA; (i) A statement that the health care provider cannot condition treatment upon the patient signing the consent for release of information; and (j) Notice that information related to communicable diseases such as HIV and AIDS may be disclosed. Most health care providers track records by either date of birth or social security number; thus, it is helpful to have that information on the release as well. A form for release of medical information which complies with both HIPAA and state law can be found on the OBA website. Because of the way in which the HIPAA required elements, g, h and i, are written and the broadness of HIPAA and state law, a particular health care provider, or its attorney, may have drafted its approved consent form differently. Thus, although the elements listed above and demonstrated on the consent comply with HIPAA and state law, a health care provider may refuse to honor it and instead require you to use its consent form. Hopefully, attorneys and health care providers will work together as they have in the past to ensure the confidentiality of patients records while at the same time allowing for the necessary discovery of the records. Records from large health care organizations will likely be much more difficult to obtain than records from doctors in private practice. The medical authorization that I use: You can fill in the appropriate spaces. Limited time, scope etc.
12 AUTHORIZATION FOR ACCESS BY PATIENT FOR DISCLOSURE OF PROTECTED HEALTH INFORMATION Patient Name: Medical Record #: Date of Birth: Social Security #: I hereby authorize the use or disclosure of the Protected Health Information described below to be provided to or obtained by the following: Name of Individual/Facility/Company to Receive PHI Gorospe & Smith P.L.L.C E. 15 th Street Tulsa, OK Name of Individual/Facility to Disclose PHI Information authorized for use or disclosure, or to be obtained: All medical information concerning this patient. Medical information of this patient compiled between to Only: Dates of Treatment, if known: The information will be obtained, used, or disclosed for the following purpose(s) only: Insurance Continued treatment X Legal At the request of the patient or patient s representative Other(specify) I understand: I may revoke this authorization at any time, in writing, except revocation will not apply to information already used or disclosed in response to this authorization. I may revoke this document by presenting my written revocation as provided in the Notice of Privacy Practices. Unless revoked or otherwise indicated, the automatic expiration date will be one year from the date of signature or upon occurrence of the following event:. I release the entities listed above, their agents and employees from any liability in connection with the use or disclosure of the protected health information covered by this authorization. The entity authorized to disclose the information will not be compensated by the recipient for the disclosure, except for the cost of copying and mailing as authorized by law. Information used or disclosed pursuant to this authorization may be subject to redisclosure by the recipient and no longer protected by federal law. However, the recipient may be prohibited from disclosing substance abuse information under the Federal Substance Abuse Confidentiality Requirements. I have the right to inspect the health information to be released and I may refuse to sign this authorization. Unless the purpose of this authorization is to determine payment of a claim for benefits, the requesting entity will not condition the provision of treatment or payment for my care on my signing this authorization. THE INFORMATION AUTHORIZED FOR RELEASE MAY INCLUDE INFORMATION WHICH MAY INDICATE THE PRESENCE OF A COMMUNICABLE OR NONCOMMUNICABLE DISEASE, OR RELATE TO MENTAL HEALTH, OR DRUG, SUBSTANCE OR ALCOHOL ABUSE Signature of Patient or Legal Representative Date Description of Legal Representative s Authority Expiration Date of Authorization NOTICE OF RIGHTS: Information in your medical record that you have or may have a communicable or venereal disease is made confidential by law and cannot be disclosed without your permission except in limited circumstances including disclosure to persons who have had risk exposures, disclosure pursuant to an order of the court or the Department of Health, disclosure among health care providers or disclosure for statistical or epidemiological purposes. When such information is disclosed, it cannot contain information from which you could be identified unless disclosure of that identifying information is authorized by you, by an order of the court or the Department of Health or by law. Tulsa Hospital Council, Legal Sub committee, 12/25/02
13 D. Employment Authorization It will be necessary for your lost wages or loss of loss of future earning claim to obtain an employment authorization from your client s employer. Your client may be able to obtain this information for you but it is always best to have an authorization on file in case you need it. Example Employment Authorization: EMPLOYMENT AUTHORIZATION AUTHORIZATION FOR RELEASE OF EMPLOYMENT INFORMATION TO WHOM IT MAY CONCERN: NAME: SOCIAL SECURITY NO.: DATE OF BIRTH: You are hereby authorized to furnish and release to the law firm of Gorospe & Smith, 1825 E. 15 th Street, Tulsa, OK 74104, all information and records which they may request regarding my employment with you. Dated this day of, 201. A COPY MAY BE USED IN LIEU OF ORIGINAL Again, take the time to get to know this potential client. Go through all of the above documents with them and answer all of their questions. If you ve only spent 10 minutes with the client, you haven t spent enough time. Take at least an hour and don t let them leave without all of their questions asked and answered.
14 III. Do you want the case? Is the case something that you are interested in taking? Are there sufficient damages? Is liability going to be an issue that you can handle? Will you be able to adequately compensate yourself and your client for his/her damages given the expectations? Is this potential client a person that you want to have an attorney-client relationship for the next several years? You do want the case so you have the signed contract for legal services, the signed HIPPA and the signed employment authorization ***DIARY, DOCKET, NOTE THE 2 YEAR STATUTE OF LIMITATIONS*** This is very important for obvious reasons. Put insurance companies on notice. A. Letter of representation to 3 rd party insurer. This is the insurance company of the person that hit your client. Insurance Company Attn: Adjuster Address line 1 Address line 2 Dear Insurance Company, March 21, 2013 Re: My client: #### Claim number: Policy number: Date of Loss: February 21, 2013 Please allow this letter to serve as notice that client has retained the undersigned in order to protect her in regards to her bodily injury claim arising from the above referenced accident with your insured. In the event my client executed any authorizations, they are hereby revoked. All correspondence related to my client s bodily injury claim should be directed to this office. You have authority to communicate with my client regarding any property damage issues. Please confirm acknowledgment of this letter of representation at the earliest convenience. Thank you and I look forward to working with you in this matter. Yours truly,
15 Anthony F. Gorospe AFG/tw B. Letter of representation to 1 st party insurer (UM, Med pay, etc). This is your client s auto insurance company or companies. Put them all on notice. Insurance Company Attn: Adjuster Address line 1 Address line 2 Dear Insurance Company, August 16, 2013 Re: My client: ##### Your insured: ##### Policy Number: Claim Number: Date of Loss: July 23, 2013 Please allow this letter to serve as notice that client has retained the undersigned in order to protect her interests in regards to the above referenced accident. All correspondence related to this matter should be directed this office. I have attached a copy of the traffic collision report for your review. It is my understanding that Insurance Company may have available coverage to cover the losses incurred by client. Please provide any documentation (declarations pages, etc.) which shows any and all coverage that may be available to cover my client s losses from this accident. Please confirm acknowledgment of this letter of representation at the earliest convenience. Yours truly, Anthony F. Gorospe
16 Enclosure AFG/tw IV. Coverage At the beginning of the case you need to make sure what kind of insurance coverage may be available to cover your client s damages.without any money there s not much you can do for your client. A. Property Damage Your client is going to want to get back on the road ASAP. During the initial client interview you are going to want to confirm how the property damage claim is to be handled. Your client will want their vehicle repaired or receive fair market value of their totaled vehicle. Your client is also allowed to recover loss of use or rental during the time of repair or until they receive their total loss check from the insurance company. The OUJIs provide authority for your property damage claim whether you are making your property damage claim to your client s own insurer or the liable party s insurer. Their vehicle will either be repairable or a total loss (repairs 70% of fair market value of vehicle). i. If the vehicle can be repaired: Instruction No PERSONAL PROPERTY- COST OF REPAIRS- LOSS OF USE If you decide for [Plaintiff] on the question of liability, you must then determine the amount of money that will reasonably and fairly compensate him for the injury to the [insert description of property ]. That amount is: 1. The reasonable cost of repairing the [insert description of the property], plus depreciation, if any, to the [insert description of the property ]. ("Depreciation" means the difference between the market value of the property immediately before being injured and its market value after repairs have been or would be made.) and, 2. The reasonable cost of renting a similar [insert description of the property] during the time reasonably required to make the necessary repairs of the injury caused by [Defendant ].
17 A tricky issue is the depreciation or diminution of value claim after the vehicle has been repaired. How to determine depreciation of a vehicle? You can hire a car sales manager to provide you with an opinion or try to get the information for free. Instruction No PERSONAL PROPERTY- LOSS OF USE If you decide for [Plaintiff] on the question of liability, then you must determine the amount of money which will reasonably and fairly compensate [him/her] for the loss of use of the [insert description of property]. That amount is: 1. The loss of net profits which [he/she] would have received had [he/she] been in possession of the property. 2. The cost of renting a comparable substitute. 3. Interest computed on the market value of the property during the time of the detention. Get them in a rental if they need one or, if not, a loss of use recovery. ii. If the vehicle can t be repaired Instruction No PERSONAL PROPERTY- MARKET VALUE- NOT REPAIRABLE If you decide for [Plaintiff] on the question of liability you must then determine the amount of money which will reasonably and fairly compensate [him/her] for the [destruction/loss] of the [insert description of property]. 1. That amount is the fair market value you find the [insert description of property] had immediately before its [destruction/loss]. 2. That amount is the difference between the fair market value of [insert description of the property] immediately before its [destruction/loss] and its value immediately after its [destruction/loss]. Instruction No FAIR MARKET VALUE - DEFINITION Fair Market Value means the price that the [description of property] would bring on the open market in a sale between a seller who is willing to sell and a buyer who is willing and able to buy after a reasonable opportunity for negotiations. Check out NADA, Kelly Blue Book, ebay, autotrader.com, etc. for comparable vehicle with same mileage, condition, options, etc. to see what the vehicle is worth in the open market.
18 Make sure the insurer pays for tax, title, tag for the totaled vehicle. Also, make sure that any property within the vehicle that was damages is taken care of. 1 st party collision Your client may have coverage that will cover the totaled vehicle or the repairs. There will likely be a deductible taken from the total loss evaluation. Your client s insurance company will get that deducible back to your client if they are used replace the vehicle. B. Bodily Injury Oklahoma Uniform Jury Instructions Oklahoma Jury Instructions- Civil Chapter 4 Section Instruction PERSONAL INJURIES- ADULTS Cite as: O.S., Instruction No. 4.1 PERSONAL INJURIES- ADULTS If you decide for [Plaintiff], you must then fix the amount of [his/her] damages. This is the amount of money that will reasonably and fairly compensate [him/her] for the injury sustained as a result of the [negligence/(wrongful conduct)] of [Defendant]. In fixing the amount you will award [him/her] you may consider the following elements: A. [His/Her] physical pain and suffering, past and future; B. [His/Her] mental pain and suffering, past and future; C. [His/Her] age; D. [His/Her] physical condition immediately before and after the accident; E. The nature and extent of [his/her] injuries; F. Whether the injuries are permanent; G. The physical impairment; H. The disfigurement; I. Loss of [earnings/time]; J. Impairment of earning capacity; K. The reasonable expenses of the necessary medical care, treatment, and services, past and future. Underinsured/Uninsured Motorist (UM/UIM) Title 36. Insurance Oklahoma Statutes Citationized Title 36. Insurance Chapter 1 - Insurance Code Article Article 36 - Insurance Contracts Section Uninsured Motorist Coverage Cite as: O.S.,
19 A. No policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be issued, delivered, renewed, or extended in this state with respect to a motor vehicle registered or principally garaged in this state unless the policy includes the coverage described in subsection B of this section. B. The policy referred to in subsection A of this section shall provide coverage therein or supplemental thereto for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles because of bodily injury, sickness or disease, including death resulting therefrom. Coverage shall be not less than the amounts or limits prescribed for bodily injury or death for a policy meeting the requirements of Section of Title 47 of the Oklahoma Statutes, as the same may be hereafter amended; provided, however, that increased limits of liability shall be offered and purchased if desired, not to exceed the limits provided in the policy of bodily injury liability of the insured. The uninsured motorist coverage shall be upon a form approved by the Insurance Commissioner as otherwise provided in the Insurance Code and may provide that the parties to the contract shall, upon demand of either, submit their differences to arbitration; provided, that if agreement by arbitration is not reached within three (3) months from date of demand, the insured may sue the tort-feasor. C. For the purposes of this coverage the term "uninsured motor vehicle" shall include an insured motor vehicle where the liability insurer thereof is unable to make payment with respect to the legal liability of its insured within the limits specified therein because of insolvency. For the purposes of this coverage the term "uninsured motor vehicle" shall also include an insured motor vehicle, the liability limits of which are less than the amount of the claim of the person or persons making such claim, regardless of the amount of coverage of either of the parties in relation to each other. D. An insurer's insolvency protection shall be applicable only to accidents occurring during a policy period in which its insured's uninsured motorist coverage is in effect where the liability insurer of the tort-feasor becomes insolvent within one (1) year after such an accident. Nothing herein contained shall be construed to prevent any insurer from according insolvency protection under terms and conditions more favorable to its insured than is provided hereunder. E. For purposes of this section, there is no coverage for any insured while occupying a motor vehicle owned by, or furnished or available for the regular use of the named insured, a resident spouse of the named insured, or a resident relative of the named insured, if such motor vehicle is not insured by a motor vehicle insurance policy. F. In the event of payment to any person under the coverage required by this section and subject to the terms and conditions of such coverage, the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made, including the proceeds recoverable from the assets of the insolvent insurer. Provided, however, with respect to payments made by reason of the coverage described in subsection C of this section, the insurer making such payment shall not be entitled to any right of recovery against such tort-feasor in excess of the proceeds recovered from the assets of the insolvent insurer of said tort-feasor. Provided further, that any payment made by the insured tort-feasor shall not reduce or be a credit against the total liability limits as provided in the insured's own uninsured motorist coverage. Provided further, that if a tentative agreement to settle for liability limits has been reached with an insured tort-feasor, written notice shall be given by certified mail to the uninsured motorist coverage insurer by its insured. Such written notice shall include: 1. Written documentation of pecuniary losses incurred, including copies of all medical bills; and 2. Written authorization or a court order to obtain reports from all employers and medical providers. Within sixty (60) days of receipt of this written notice, the uninsured motorist coverage insurer may substitute its payment to the insured for the tentative settlement amount. The uninsured motorist coverage insurer shall then be entitled to the insured's right of recovery to the extent of such payment and any settlement under
20 the uninsured motorist coverage. If the uninsured motorist coverage insurer fails to pay the insured the amount of the tentative tort settlement within sixty (60) days, the uninsured motorist coverage insurer has no right to the proceeds of any settlement or judgment, as provided herein, for any amount paid under the uninsured motorist coverage. G. A named insured or applicant shall have the right to reject uninsured motorist coverage in writing. The form signed by the insured or applicant which initially rejects coverage or selects lower limits shall remain valid for the life of the policy and the completion of a new selection form shall not be required when a renewal, reinstatement, substitute, replacement, or amended policy is issued to the same-named insured by the same insurer or any of its affiliates. Any changes to an existing policy, regardless of whether these changes create new coverage, do not create a new policy and do not require the completion of a new form. After selection of limits, rejection, or exercise of the option not to purchase uninsured motorist coverage by a named insured or applicant for insurance, the insurer shall not be required to notify any insured in any renewal, reinstatement, substitute, amended or replacement policy as to the availability of such uninsured motorist coverage or such optional limits. Such selection, rejection, or exercise of the option not to purchase uninsured motorist coverage by a named insured or an applicant shall be valid for all insureds under the policy and shall continue until a named insured requests in writing that the uninsured motorist coverage be added to an existing or future policy of insurance. H. The following are effective on forms required on or after April 1, The offer of the coverage required by subsection B of this section shall be in the following form which shall be filed with and approved by the Insurance Commissioner. The form shall be provided to the proposed insured in writing separately from the application and shall read substantially as follows: OKLAHOMA UNINSURED MOTORIST COVERAGE LAW Oklahoma law gives you the right to buy Uninsured Motorist coverage in the same amount as your bodily injury liability coverage. THE LAW REQUIRES US TO ADVISE YOU OF THIS VALUABLE RIGHT FOR THE PROTECTION OF YOU, MEMBERS OF YOUR FAMILY, AND OTHER PEOPLE WHO MAY BE HURT WHILE RIDING IN YOUR INSURED VEHICLE. YOU SHOULD SERIOUSLY CONSIDER BUYING THIS COVERAGE IN THE SAME AMOUNT AS YOUR LIABILITY INSURANCE COVERAGE LIMIT. Uninsured Motorist coverage, unless otherwise provided in your policy, pays for bodily injury damages to you, members of your family who live with you, and other people riding in your car who are injured by: (1) an uninsured motorist, (2) a hit-and-run motorist, or (3) an insured motorist who does not have enough liability insurance to pay for bodily injury damages to any insured person. Uninsured Motorist coverage, unless otherwise provided in your policy, protects you and family members who live with you while riding in any vehicle or while a pedestrian. THE COST OF THIS COVERAGE IS SMALL COMPARED WITH THE BENEFITS! You may make one of four choices about Uninsured Motorist Coverage by indicating below what Uninsured Motorist coverage you want: I want the same amount of Uninsured Motorist coverage as my bodily injury liability coverage. I want minimum Uninsured Motorist coverage $25, per person/$50, per occurrence. I want Uninsured Motorist coverage in the following amount: $ per person/$ per occurrence. I want to reject Uninsured Motorist coverage.