Auto Accident Answers by Jim Brady

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1 Cover Picture Executive Coaching - All Rights Reserved

2 Auto Accident Answers By Attorney Jim Brady Page - 2

3 Table of Contents Foreword... 5 Auto Accident Answers... 6 Is it necessary to call an Attorney if I ve been in an auto accident?... 6 If no one is injured should I call the police?... 6 What are my legal rights if I ve been in an auto accident?... 6 If someone is injured who pays the medical bills?... 7 Can I be sued if the accident isn t my fault?... 8 Who determines which party is at fault?... 8 What happens if I am a victim of a hit-and-run accident?... 8 If I am injured, who pays my medical bills if I am the one at fault?... 9 How long will it take to settle my auto accident case? Meet Attorney Brady Page - 3

4 Copyright Auto Accident Answers 2013 Jim Brady- All Rights Reserved All rights reserved. No portion of this guide may be reproduced, stored in a retrieval system, or transmitted in any form or by any means electronic, mechanical, photocopy, recording, or any other, without the express prior written permission from the author. The content of this guide reflects the author's views acquired through his experience in the field under discussion. The author disclaims any personal loss, injuries, damages or liability caused by utilization of any information presented herein. You May Give this Guide Away Free of Charge in its Entirety You Do NOT Have the Right to Reprint or Resell This Guide! You MAY NOT Give Away, Sell or Share the Content Herein! Attorney Jim Brady and Associates, P.C. Jim Brady Walpole, MA Page - 4

5 Foreword If you re out on the road, even the best driver is subject to having an automobile accident. It s an unforeseen event that can have a huge impact on one s life. In this guide you'll find the most frequently asked questions I have received since I began my legal practice in It is my hope that this information helps you have a better understanding of your legal rights in the event that you or a loved one are involved in an accident. If you have any additional questions, please feel free to contact my office and I'll be happy to address them. Sincerely, Jim Brady Attorney Jim Brady and Associates, P.C Page - 5

6 Auto Accident Answers Is it necessary to call an Attorney if I ve been in an auto accident? No, it is not necessary but it is wise to do so. The attorney can give you advice as to what steps to follow in both if you have been injured and if your vehicle has been damaged. Your conversations with the attorney are privileged and enjoy certain legal protections that would not apply if speaking with a non-attorney. One of the crucial elements in automobile accidents is determining who is at fault. An attorney experienced in these types of cases can assist you in navigating through the complicated maze of laws and regulations which apply to this type of situation. Dealing with the insurance companies is confusing at best and calling an attorney alleviates much of the stress associated with these claims allowing you to focus on healing and getting back to work as soon as possible. If no one is injured should I call the police? My advice is to call the police even if no one appears to be injured. It is quite common at the site of an accident for a person to say they are fine. An accident is a very emotional event and often times one s adrenaline kicks in and people are just simply embarrassed over the whole situation because they do not want the attention focused on them. It is not unusual that the injury will surface a day or two later. Hopefully this will not happen but having the police at the accident scene to observe the position of the vehicles involved and the circumstances surrounding the accident is helpful. The observations made by the police and comments included in the reports can also assist in resolving potential personal injury claims as well as property damage claims. What are my legal rights if I ve been in an auto accident? Massachusetts car accidents cases are pursued under the common law in what is commonly called a tort action. A tort is a private or civil wrong resulting in injury to another person or damage to property. It is not a breach of contract. The word originates from Latin word torquere which means to twist. In the context of car accidents, we must first show that the person who caused you injury owed you a duty and that he or she breached or did not fulfill that duty. Page - 6

7 This duty occurs every day when we decide to drive our car on the roads of Massachusetts. Everybody who drives a car has a duty to one another. We must drive our vehicles safely and to follow the rules of the road. When we do not follow the rules and as a result of not driving safely we injure somebody else we have violated or breached our responsibility and are liable to the person we hit. If that person is injured as a result of our breach of conduct than he or she can collect money from us to pay for the medical bills they incur, the lost wages they have suffered, the pain and suffering they may have endured and the loss of enjoyment of life or convenience they have experienced as a result of us not having followed the rules. To make sure that people are in fact compensated, Massachusetts along with most other states, require that we carry car insurance on our automobiles. This is a good thing. If someone is injured who pays the medical bills? In Massachusetts if you are injured as a result of somebody else s negligence that person is ultimately responsible for payment of your medical bills. Unfortunately the system is somewhat convoluted as you first must claim medical bills through your own insurance company under what is called the PIP of your policy. PIP stands for Personal Injury Protection benefits. If you review your coverage selections page from your insurance company you will see that the first four sections of that page is what is called compulsory coverage. This means you must have this type of coverage on your policy before you can register your car in Massachusetts. Section 2 is the so-called PIP provision. This section of your own policy will pay the first $2000 of medical bills that you might have as a result of an automobile. After that $2000 is exhausted you then would ask your private health carrier to pay your medical bills. Any bills not pay by your private health carrier would be paid under the PIP provision of your own policy. There are many nuances in this process but this is the general nature of how your medical bills are paid if you need treatment in Massachusetts as a result of being involved in an automobile accident. Ultimately your own insurance company will seek payment from the insurance company of the person that you as ultimately it is the responsibility of the person at fault to pay for the charges you incur. Your insurance company will file a claim for subrogation against the wrongdoers insurance company if an agreement cannot be reached voluntarily. Page - 7

8 Can I be sued if the accident isn t my fault? Unfortunately, the answer is yes but I say that with a caveat in place. Practically speaking it doesn t usually happen. If a person has a reasonable and good faith basis for filing a lawsuit they can do so. Of course this is somewhat subjective and when it is questionable as to whose fault it is (and very often most people feel it is not their fault) then either party can file suit. Although one can file a lawsuit it doesn t mean that they re going to be successful. When the accident is clearly not your fault the chances of being sued are pretty low. Who determines which party is at fault? There is no grand immediate adjudicator of who is at fault in an automobile accident. Establishing fault, or liability, in a car accident case involves a number of factors. An initial investigation, usually done by the police, will give the parties a good idea as to who is at fault. Factors such as speed, the angle at which the vehicle strike each other, skid marks and of course eyewitnesses testimony play a large role in determining who is at fault in an accident. Ultimately a judge or jury will decide this issue if the parties cannot agree. What happens if I am a victim of a hit-and-run accident? There may be a number of reasons why a driver involved in an accident would leave the scene without exchanging any details for insurance purposes. None of these reasons are excusable. It is a very callous act to leave the scene of an accident as there may be people injured and in need of attention. Leaving the scene is a criminal act in Massachusetts. By leaving the scene of an accident a driver is generally regarded as being at fault. However, this should never be taken for granted. Proofing fault will always fall on the person who wants to claim for accident damage. The chances of someone who has left the scene of an accident without exchanging details later trying to submit an insurance claim is very slim indeed, but it does happen. That s why it is of the utmost importance for the person who has been the victim of a hit and run accident to find objective witnesses. In many cases hit and run incidents involve stationary cars. It is not a nice feeling to return to your car to discover that it has been hit, and there is no one around who is prepared to admit responsibility. If the car was parked in the street outside your home or anywhere else we suggest that you knock on doors to see if there Page - 8

9 were any witnesses. In some cases you might find that a well-meaning person would have either witnessed the accident or saw the hit and run driver flee the scene. If you find them and they have taken note of their license number you are in a very strong position. In these cases you have to take full details of the witness, as they will probably be asked to appear in court at a later date. If the hit and run accident took place in a parking lot, either in a shopping mall or airport cark park for example, the chances may be that bit slimmer of finding a witness. However, approach the company who manages the car park to see if they have any close circuit TV cameras that were working in the area at the approximate time when the accident occurred. You will have to move fast as these tapes are usually cleaned quickly. If there are no witnesses to be found you will need to face the insurer on the strength of your word alone, and with as many details as you can provide. Insurance Companies will not be so willing to pay out if they cannot claim against a third party s insurance and they chances are that the victim of the accident will have no option but to claim against their own insurance company. That s why it is so vital to find witnesses. One of the great anomalies when it comes to car insurance is that if the hit and run driver had not committed any crime other than leaving the scene, they may contest your insurance claim, and their insurance company will almost certainly back them up. They may claim that they were under some kind of stress or in shock or any one of a hundred other reasons. In that case it will be their word and against yours and your insurance company against theirs. It will come down to the person who can produce reliable and objective witnesses that will win out in the end. Being involved or being a victim of a hit and run driver can be a very harrowing event. Coming out of the experience without any financial damage is only reasonable to expect, as long as you remember that it is not a foregone conclusion. You have to do your homework and investigate the situation. If I am injured, who pays my medical bills if I am the one at fault? In Massachusetts we have what is known as no-fault insurance provision with regard to certain aspects of car accident injury claims. This insures that everyone gets a basic level of help with their medical bills after a car accident regardless of who is at fault. Under Massachusetts law, your auto insurance company pays the first $2000 of medical bills as part of a package required for all vehicles. This is Part II of your Page - 9

10 coverage and is known as PIP benefits. After that, if you have private health insurance, your own coverage takes over. If you don t have any health insurance, your medical bills from $2000 to $8000 are covered under PIP. PIP can also be used to cover up to 75% of lost wages if you are out of work. Please note that Massachusetts Personal Injury Protection does NOT cover riders and passengers involved in a motorcycle accident. The rules for managing PIP benefits can be fairly complicated and at times overwhelming. How long will it take to settle my auto accident case? It is hard to say how long it will take to settle your automobile accident case. Much of it depends upon how well and how quickly you recover from your injuries. The first thing we do is gather all of the necessary evidence to prove your case. Assuming the accident is not your fault and you meet the minimum requirements to bring a lawsuit Massachusetts, we then must gather all of your medical information. No cases settled until the exact nature of your medical condition has been determined. We will consult with your doctor and ask him or her whether or not you have reached maximum medical improvement and are at a medical end result. Basically we want to make sure that you have recovered from your injuries and that you are as good as you re going to get before we attempt to settle your case. Sometimes we have to wait 9 to 12 months (and in catastrophic cases longer) before your doctor can render such an opinion. Page - 10

11 Meet Attorney Brady Attorney Jim Brady is an experience attorney who since 1985 has been trying cases in the areas of personal injury, workers compensation and social security disability as well as practicing small business and real estate law. A graduate of the University of Massachusetts (cum laude) and New England School of Law (1984), Jim is a US Navy Seabee Veteran. He has successfully tried numerous civil and criminal cases in the District and Superior Courts of the Commonwealth of Massachusetts. Jim is an accomplished speaker who has lectured on disability law in Merrimack, NH, Boston, MA, Providence, RI, New York, NY, Chicago, IL. Jim has also been invited to speak in Pasadena, CA for the National Center for Advanced Medical Education, Compass Medical Network, Massachusetts Continuing Legal Education (MCLE) and for SEAK, Inc. at their National Workers Compensation Seminar. Jim is the author of "Disability and the Latex Allergic Health Care Worker" and a contributing author of "Multiple Chemical Sensitivity Cases and Daubert" (MCLE, 1998) and Workers Compensation Practice in Massachusetts, (MCLE, 2001). Jim can be found on the airwaves as a co-host of "The Boston Bar", an internet radio show heard on Attorney Brady is a member of the following associations: American Association for Justice (formerly ATLA) American Civil Liberties Union Bar Association of Norfolk County (Past President) Massachusetts Academy of Trial Attorneys Massachusetts Joint Bar Committee on Judicial Appointments ( ) Massachusetts Bar Foundation - Life Fellow (limited to 5% of attorneys in Massachusetts) Massachusetts Board of Bar Overseers (former Hearing Committee Member - 6 years) National Organization of Social Security Claimants' Representatives, Midland Park, NJ Supreme Judicial Court Historical Society The Catholic Lawyers Guild of Boston Western Norfolk County Bar Association Workers Injury Law & Advocacy Group, Washington, DC Page - 11

12 1068 Main Street Walpole, MA Page - 12