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2 2 Everything You Need To Know About Car Accident Cases HOW TO USE THIS GUIDE If you read this guide, you will discover what you need to know about your legal issue, and learn about your options. Then you will be armed with information so you can make an informed, intelligent decision about what to do. What you should do now: Read this Free Legal Consumer Guide. You should be informed before you talk to an attorney. Call an attorney. At least get an initial consultation to discuss the unique facts of your situation. The best solutions come from applying the law to the facts of your case. No book can do that. Most attorneys offer a 1 hour consultation to discuss your case. You have many good choices in Southern Maryland. Of course, we hope you choose us! We want to be your family s attorney. Contact us today. Disclaimer: (1) Using this guide will not make you a lawyer, and is no substitute for hiring one. Do not represent yourself in any serious legal matter. (2) This guide gives general information and advice. Effective legal advice requires understanding the unique facts of your situation, and applying the law to those facts. (3) Using this guide does not create an attorney-client relationship with our firm. The only way to do that is by meeting with us. (4) The legal advice and information in this guide applies only to Maryland.
3 3 Everything You Need To Know About Car Accident Cases AUTHOR PAGE Tucker Clagett is a partner at Andrews, Bongar, Gormley & Clagett. He has been practicing law since 1994, and concentrates his practice in personal injury, workers compensation, and civil litigation. See his full bio on the web at /aboutus/tucker-clagett Andrews, Bongar, Gormley & Clagett is one of the oldest and largest law firms in Southern Maryland serving clients for 50 years. We have more attorneys and a larger staff than other local law firms. That means we can help you and your family in a wider variety of legal matters. Each attorney concentrates in a few key areas so you get the expertise you need, and the personal service you want. Copyright 2013
4 4 Everything You Need To Know About Car Accident Cases TABLE OF CONTENTS What to do after a car accident.. 6 Six Mistakes that can ruin your car accident case 15 Give a recorded statement 15 Take the quick settlement check.. 19 Failing to get proper medical care 23 Getting too much medical care.. 26 Seeing a doctor who has a deal with the lawyer 28 Failing to get a free consultation.. 30 Big Picture Concepts You Need to Know. 32 Liability and Negligence Who is at fault?. 32 Contributory Negligence. 33 Damages. 35 Insurance Coverage. 38 Property Damage 41 Rental Cars.. 45 Lump Sum Settlement. 47 Paying for Medical Bills & Lost Wages.. 48 PIP.. 49 Settlements and Taxes. 51 Statute of Limitations 52 What Happens During My Accident Case?. 53
5 5 Everything You Need To Know About Car Accident Cases A car accident is a frightening interruption to your regular life. Because you may not have been in an accident before, you may not know what to do now. Read this guide to find out. Car accidents create pain, stress and inconvenience. You will have problems after a car accident. Property damage. Rental cars. Insurance Adjusters. Lost Wages. PIP. Injuries. Medical bills. Health Insurance liens. The list goes on and on. You will definitely have to deal with some or all of these issues. How are you going to fix these problems? There is no way to make the aftermath of a car accident into a stress free process. But there are answers, and there is a system for compensating you for everything you are going through right now. Here is how this guide is laid out: First, we will discuss what you should do immediately after a car accident. Second, we will tell you about the six big mistakes we see people make all the time. Third, we will explain some of the big picture concepts involved in car accident cases. Fourth, we will explain a lot of the details you need to know, like property damage, rental cars, PIP, health insurance liens, etc.
6 6 Everything You Need To Know About Car Accident Cases Last, we will outline the legal process for your if you do need to retain an attorney to represent you in your car accident case. You should know right up front that consultations for car accident cases are free with us or any other attorney. You have nothing to lose by at least getting that free consultation, and we strongly recommend you do that as soon as possible. You may know a lot but you don t know what you don t know! Better safe than sorry. WHAT TO DO AFTER A CAR ACCIDENT (1) Call 911 Call 911 and report the car accident. If someone is injured, or even if they may be injured, you should be sure to specifically report that, so the dispatcher sends an ambulance. An ambulance can provide critical care that can save a life. A person may not look injured if they have internal injuries, are in shock, or sometimes just because their adrenaline is pumping after the accident. Don t take a chance with your health or that of another person. Better safe than sorry.
7 7 Everything You Need To Know About Car Accident Cases You must tell the police officer what happened. You should also be honest when describing your injuries to the ambulance crew. You do not have to talk to the other driver, or any witnesses. You should never talk to an insurance company representative before consulting a lawyer. And you should never sign anything from an insurance company unless a lawyer has reviewed it first. (2) Gather Information Be sure to get the police officer s name, badge number, and accident report number. You will want a copy of the accident report. Your attorney will certainly order one. Notice whether the officer is State Police or the County Sheriff. Get the name, address, and telephone number of any driver involved in the accident. It may be helpful to write down a physical description of the driver too. Get their insurance information, including the company, the policy number, and the company s address and phone number. Were they working? Is it a company vehicle? Get the employer s information. Also, get the same information from any other cars involved in the collision. Write down as much information as you can.
8 8 Everything You Need To Know About Car Accident Cases Don t just take their word for it. Ask to see their driver s license and insurance card. We have had cases where a driver made up a name, number and even used a fictitious insurance company! (3) Watch What You Say Be very careful about making comments at the scene. The adverse driver could take it the wrong way, and it could be used against you later. Our best advice is to NEVER talk about how the accident happened. It is over, so that is irrelevant anyway. Technically, you do not have to explain it to the police officer either. However, we advise clients to be honest with the police. By then, you will be able to tell a coherent, organized story. It is usually the offhanded comment to the other driver that will get you in trouble later. (4) Listen to the Other Driver This is the flip side of the advice above. If the other driver makes one of those offhanded comments, you should remember it and write it down. Apologies are admissions of guilt. Other hot headed comments by the adverse driver can be very revealing.
9 9 Everything You Need To Know About Car Accident Cases (5) Get Witnesses Get the name, address, and phone numbers of all witnesses to the accident. This will be vital later if a dispute arises about who was at fault. Do not necessarily trust the police officer to get this information. We have seen many cases where they fail to get the witness contact information, probably because the witness left the scene before they could get it. You should be your own private investigator, to the best of your ability, and gather evidence at the scene. (6) Take Pictures Cell phone cameras are very common today. If you have one, take some pictures of the accident scene, and the vehicles involved. Take pictures that show the complete scene, including where the other driver was coming from. You want to be able to prove they were negligent. This is true no matter what they say at the scene, or how obvious you think it was that the other person was at fault. I have two personal stories that prove that point.
10 10 Everything You Need To Know About Car Accident Cases Years ago, a woman rear-ended me and apologized profusely on the scene. She was very nice, but it was obviously her fault, and she admitted it. It was just a bit of minor property damage, so I didn t think much of it. We exchanged information and went our separate ways. Later, I got a call from her insurance company because when she called them, she claimed I rolled backwards into her! Lucky for me, they caught her in that lie (I had an automatic transmission and was on an incline, so I couldn t have rolled back) and she had to pay, but I was completely shocked that the nice lady who apologized for hitting me tried to lie like that. After over 15 years as a practicing attorney, I would almost expect it today. But I did not then. That is why, when someone pulled out in front of me a few years ago in a parking lot, I took pictures with my cell phone. He later tried to claim I was speeding, but my pictures proved the story and his insurer paid to fix my bumper. The earlier incident kept me from trusting him and I was glad later that I had the pictures to prove my side of the story.
11 11 Everything You Need To Know About Car Accident Cases So take pictures if you have a camera or your cell phone takes pictures. And not just one. Take enough pictures to accurately show the scene. Also, take pictures of the cars and the damage. Property damage is often used by insurers to gauge whether you are really injured or not. This isn t always fair, but they do it. If you have property damage, take pictures to prove it before the car gets repaired. The last thing to take pictures of are any visible injuries. This may sound like something you do not want to do, but documenting your visible injuries will be very helpful to your legal case later. (7) Write it Down Write a detailed description of the accident very soon after it occurs. You should do this as soon after the accident as you can. Do it even if you think the accident was simple and will be easy to remember. Do not trust your memory. What you think are minor details now may become important later. And you may not remember the smaller details as well as your attorney will wish you did.
12 12 Everything You Need To Know About Car Accident Cases Do not show this description to anyone other than your attorney. Do not provide it to anyone representing any insurance company. Do not even tell them about it until you have hired an attorney. When in doubt, consult an attorney. (9) Get Medical Care (8) Report the Accident to Your Insurance Company You should report the accident to your own insurance company as soon as you can. You will have to give them a statement, but remember not to give them a recorded statement. Talk to an attorney first if you have any hesitation or get any flack from your own insurance company. Do not delay medical care if you need it. It is very common for a person to feel fine immediately after an accident, then develop pain an hour or more after the accident is over. Your body is in shock, and it takes a while for your muscle to tighten up. It is even more common to feel badly the next morning after you sleep that night.
13 13 Everything You Need To Know About Car Accident Cases If that happens to you, go to the hospital or your primary care doctor. You may just be sore, or you may have a serious condition that requires treatment. Only a doctor can tell. Be honest with your medical provider when describing your injuries. Never exaggerate your injuries, but do not minimize them either. Be honest and be complete in describing your pain or symptoms. That is the only way they can accurately treat you. The insurance company will carefully review your medical records for clues to the accident and its affect on you. So be complete when you are telling the doctor how you feel, and what happened to make you feel that way. Your health care providers will write down what you say, and the insurance company will get a copy of that report. It should be as accurate as possible. This is not only important for your case it is even more important for your medical care! The doctor cannot properly treat you if you do not tell him or her what happened and how you feel.
14 14 Everything You Need To Know About Car Accident Cases By the way, if the Doctor tells you to stay off work, be sure to get that in writing. This is true even if you are self employed. Most doctors will do this, but you may have to remind them if they are busy seeing patients. The insurance company will not pay for your lost wages unless you have a written excuse from a doctor. Remember to do what we attorneys do document, document, document. (10) Get a Free Consultation All attorneys who handle personal injury cases offer a free consultation. Take advantage of that. Do not try to handle your injury claim on your own. At the very least, get some free advice. You will not have to pay if you have an injury claim. If you do not want to go in the office, schedule a phone appointment. You have nothing to lose but your time. Pick a lawyer who appears honest and ethical. If you feel like you are getting sales pressure to retain him or her, just ask to think it over and leave. You are never under an obligation.
15 15 Everything You Need To Know About Car Accident Cases SIX MISTAKES THAT CAN RUIN YOUR CAR ACCIDENT CASE Before we tell you what to do, we will tell you what NOT to do. Now is the time you could make some easy to avoid mistakes with your car accident case. These mistakes are very common and very easy to make. We see them all the time from clients who come to us after trying to do things themselves. Just avoiding these six mistakes will increase your chances of successfully getting through your Maryland accident case. Mistake Number 1: Giving a Recorded Statement to the Adverse Driver s Insurance Company Would you go to a deposition without an attorney? Of course not. Going to a deposition without an attorney would be crazy. A recorded statement is essentially the same thing. It can and will be used against you later in your case. In fact, that is the whole point of it no matter what the insurance adjuster tells you.
16 16 Everything You Need To Know About Car Accident Cases Giving a recorded statement is rarely a good idea at all, and should never be done unless an attorney is present. The same thing applies to a written statement. You have probably never given a recorded statement before. The insurance adjuster on the other end of the line has probably taken hundreds of them. They have been trained to take them. And we can promise you one thing that insurance adjuster is watching out for their company s best interests not yours. Many insurance company representatives seem very nice and helpful on the phone. Some are genuinely nice. But some are only acting that way to get as much information out of you as they can. If the adjuster finds a reason to deny your claim, they will do it in a heartbeat. Even the nice ones are looking for a reason to deny your claim. That is just their job. You have no way of knowing who is really trying to be helpful and who is trying to pump you for information to deny your claim. That is why you should approach every conversation with an insurance company representative carefully just like we do every time we talk to one on behalf of my client.
17 17 Everything You Need To Know About Car Accident Cases Ask the insurance representative if you can do a recorded interview of the person who hit you? What do you think they will say? You will find that the ability to request information is a one way street. Their insured the adverse driver will likely be instructed not to talk to anyone other than the police. Perhaps you should take that as good advice applying to you too. What we have said so far applies to recorded statements in any state. Under Maryland law, there is an extra special reason not to give a recorded statement. Maryland is one of the few states that follow a legal doctrine called contributory negligence. This means that if you are at fault in any way for the accident, you get nothing. So if you did something very minor that makes you 1% a fault, and the other guy is 99% at fault you lose. Any small action you took before the accident could be seen by the insurance adjuster as that 1% fault on your part, which will cause them to deny your claim under the doctrine of contributory negligence. If that happens, you have made settlement a lot more difficult. Unless you have read all the legal cases, you won t know what they are. An attorney experienced in car accident cases will.
18 18 Everything You Need To Know About Car Accident Cases Even if you are dead set on handling your accident claim yourself, you should still consult an attorney before giving a recorded statement. All attorneys offer free consultations for accident cases (we do too!). They should give you that consultation even if you do not want to hire them. Our best advice is to never give a statement of any kind to the insurance company unless you have consulted a lawyer. But if you do not follow our best advice, at least make sure the statement is not recorded. It is perfectly fair for you to demand that. In fact, in Maryland it is illegal to record any conversation unless both parties consent. So do not consent.
19 19 Everything You Need To Know About Car Accident Cases The only possible exception to this general rule is when you are suing your own insurance company for uninsured or underinsured motorist coverage (see more about that below). The insurer may claim you have a contractual duty to give a statement then. If you have a UM/UIM case, you really should not handle that on your own. The laws covering those cases are way too complicated and full of traps for the unwary. The best advice we can give you is not to give a recorded statement, and to get some good advice first if you are thinking about ignoring that advice. Get a free consultation before you do something that ruins your case. Mistake Number 2: Take the Quick Settlement Check If you are not represented by an attorney, some insurance adjusters will try to get you to take a quick settlement check soon after the accident. They may send you a check within days of your accident along with some document full of what looks like legal mumbo jumbo and instructions to just sign and return it.
20 20 Everything You Need To Know About Car Accident Cases Do not fall for this trick! If you accept a check early, you lose the right to make any claim later. That legal mumbo jumbo is a release. By signing it, you release the other driver from liability in exchange for the money. That creates a binding contract and you cannot back out of it later without a legally sufficient reason (and I didn t know what I was doing is not a legally sufficient reason). This is such a common and serious mistake that the Maryland legislature passed a law to cut down on the practice. It doesn t outlaw the practice, but builds in a period of time for you to change your mind after you accept the check. Basically, the law allows you to void any release signed within 30 days after an accident, but you have to do it within 60 days of signing the release, and you have to jump through certain other hoops like sending the money back. If you think this may apply to you, you should pick up the phone right now and call a lawyer to so you can do this right. Don t ever flirt with short deadlines like 60 days (which is really, really short in the legal world).
21 21 Everything You Need To Know About Car Accident Cases Even if they do not send you a check and release, they may send your some innocent looking forms to sign and return to them. Do not do sign any forms unless you consult with an attorney. If they are forms to apply for PIP, they are fine. (PIP is Personal Injury Protection benefits your own insurance company pays see below for more on this.) But if they are forms that allow the insurer to get your entire past medical history, you may want to limit those to what is relevant, or refuse to sign them at all. An attorney can help explain to you what those forms are, and help you make that decision. You should never take a quick settlement after a car accident because you do not yet know the extent of your damages. You should always wait to be absolutely sure you are not injured, or until you know the full extent of your condition after the accident.
22 22 Everything You Need To Know About Car Accident Cases Sometimes your pain won t show up until days or even weeks after the accident. Or, something you consider a minor pain may flare up into a major problem. Only a doctor can accurately assess your medical condition. Do not try to do that on your own, and do not be too quick to pronounce yourself fully recovered. Even if you consider yourself well and think you do not need a lawyer, how do you know if the payment from the insurance company is fair? Is it what they would give anyone else? Or just the lowest amount they could talk you into? Is it what you could get in Court? Only an attorney can answer these questions for you. Again, you should take advantage of the free consultation. An honest attorney will honestly tell you if your settlement is fair even if they don t get a fee for doing it. Free consultation means free and you get to actually talk to an attorney and get some answers without being forced to hire them.
23 23 Everything You Need To Know About Car Accident Cases Mistake Number 3: Failing to Get Proper Medical Care Your legal problems after a car accident should be the second thing you think about and we mean a distant second. Your first priority should be getting proper medical care to get well. Your medical care is far more important than your legal case. The first and most important reason we tell you this is because we want you to get well. Getting injured in a car accident is serious. If you sit at home and fail to seek medical care, you are endangering your personal health and safety. Some people do it because they are afraid of doctors. You should be more afraid of what can happen if you fail to get proper care. Some people do it because they cannot afford it. That should not be your top concern either, because of something called PIP (the Personal Injury Protection benefits mentioned above).
24 24 Everything You Need To Know About Car Accident Cases First, keep in mind it is illegal to be refused care at a hospital based on inability to pay. They have to help you even if you have no money and no insurance. But if you are injured in a car accident in Maryland, you will have up to $2,500 of health coverage through your own car insurance that applies regardless of whose fault it is. This is called PIP, and stands for Personal Injury Protection. (Technically, you can waive this coverage, but almost nobody does and nobody should! It s cheap.) Learn more about PIP below. So if your injuries are due to a car accident, you almost certainly have some health care coverage you may not even know about. So go get the medical care you need! But the second reason we tell you this is for the health of your legal case too. The insurance company will not believe you are injured unless you seek medical care. They will assume that if you really are in pain, you would go to a doctor. They will want your pain and your medical condition documented before they will consider it as damages in your case. They will not take your word for it if you fail to seek care.
25 25 Everything You Need To Know About Car Accident Cases This is another reason to go and at least get checked out. You should do it first for your health. But if you are the type who needs an extra push to go anywhere near a doctor, let this reason be that push. Go get the medical care you need. One last thing, when you are there, be honest about your pain. Don t exaggerate, but don t hold back either. Every once in a while, we get a call from someone who wants to check in with us before they see the doctor. They are worried about the legal side of their car accident case. That is not a good idea. We tell them to simply be honest about their pain and problems. Anyone who tells you otherwise is endangering your health. You should never lie to your doctor and that includes failing to tell your doctor about pain you have. Do not exaggerate your pain, but do not minimize it either. Be honest. Your physical well being is at stake here. That is always most important.
26 26 Everything You Need To Know About Car Accident Cases Mistake Number 4: Getting Too Much Medical Care The flip side to Mistake Number 3 is getting too much medical care. The insurance company will punish you if you do not see the doctor, or do not see the doctor as much as you should. But the insurance company will also punish you if you see the doctor too much! I know it sounds unfair, and sometimes it is, but it is a fact. Going to the doctor too much can hurt your case. The details are where this gets sticky. It is always wise to get a second opinion, and it is perfectly legitimate to change doctors if you need to. But if you are seen as doctor shopping, it will hurt your accident case. This is particularly true if it looks like you are shopping for the doctor that will give you more treatment that other doctors have rejected. We cannot give you hard and fast guidelines on how many doctors are too many. Just be sure you have a good reason for any new doctor you see.
27 27 Everything You Need To Know About Car Accident Cases In the Washington and Baltimore region, we have the luxury of having some of the absolute best doctors and health care facilities in the entire world. You can always get a world class second opinion. If you have a medical problem (whether caused by an accident or not) you can get in to see a really top of the line doctor. We strongly encourage people to take advantage of that. If you do not think your doctor is doing all the right things to fix you, you can find one for a second opinion that is tops in their field. We encourage you to do just that if you need to. This is the best thing for your health. It will also prevent some insurance company attorney from ever claiming you were doctor shopping or over-treating for your injury. The best thing to do is pick a reputable doctor and follow their orders. That will always be easy to defend. An attorney experienced in personal injury cases can give you an idea of when your medical treatment may raise issues for your case, but a good attorney will make sure you get ALL the care you need to feel better, and will defend it later if the insurance company tries to make it a problem for you.
28 28 Everything You Need To Know About Car Accident Cases Mistake Number 5: Seeing a Doctor who has a Side Deal with the Lawyer Have you ever heard of an attorney sending you to their doctor? It used to happen a lot more than it does now, but you still see it. It is a bad idea. Some personal injury attorneys used to make deals with certain doctors. The general idea was to have a doctor friend who would run up a bill just high enough to make the accident case seem more valuable than it was, so both the doctor and the attorney made more money off the deal. Then they would go play golf together! If this sounds unethical to you, you are absolutely right. An attorney is supposed to be a professional free of outside influence. They should only have your best interests at heart. If they are partially looking out for their doctor friend, how are they going to look out for your best interests? Not only is it unethical, but this mistake hurts your accident case. Do you think a relationship like that between an attorney and a doctor is a secret? No way. The insurance companies long ago got smart and started keeping records on attorneys. They look for problems like doctor-attorney relationships that are not ethical. They will know if your case is
29 29 Everything You Need To Know About Car Accident Cases one of those, and they will treat you accordingly. You can expect an unfairly low settlement offer, and probably a fight in Court over whether or not the doctor over-treated you. It may be perfectly legitimate for an attorney to refer you to a particular doctor, as long as there is no special relationship between them. At our firm, we prepared a list of local Orthopedic doctors because we found so many clients didn t know one. But we will always give you a list of several doctors, and we will encourage you to first ask your family doctor for a referral. That is the best way to get one. If you ask us directly, we will tell you who we use for medical care, and who we send our family to. We can also give you the names of some excellent doctors in the DC or Baltimore area who are world class and renowned for their skills. We know the skills and styles of most of the local doctors because we have represented so many injured people. But we do not have any unethical personal or professional relationships with any doctors in our area.
30 30 Everything You Need To Know About Car Accident Cases Mistake Number 6: Failing to Get a Free Consultation I have already mentioned this several times in this article, and I repeat it for a reason. All attorneys who handle Maryland accident cases offer a free consultation. That means you can at least talk to them on the phone. More likely, it means you can sit down with them in their office face to face, if you want to. It costs you nothing but your own time. There is no reason why you should fail to take advantage of free time with an attorney who knows that area of law. We suspect people worry the free consultation is just a ploy to get you into the attorney s office where they can pressure you into retaining them. The attorney is experienced at this sort of thing and you have probably never been in that position before. It can be frightening if you feel like you are the sheep going into the lion s den. That should not be the case if you deal with an honest attorney. The vast majority of attorneys are honest and ethical. The few bad apples out there give the rest of us a bad reputation.
31 31 Everything You Need To Know About Car Accident Cases If a Maryland car accident attorney is honest and ethical, he or she should agree to give you that consultation even if you do not hire us to handle your case. They should at least answer your questions, and give you a good overview of your injury case and what you can expect. They should do this in a way that is free of sales pressure. You should always feel like you are talking to an attorney not a salesman. If you feel sales pressure while meeting with an attorney, you may want to find a different attorney. Do not get me wrong. Any good attorney is going to warn you of the dangers of handling your case on your own. That is not just sales pressure. There is a reason we have jobs, after all. The legal system is complicated and full of traps if you do not know what you are doing. If you come to us with a big case that should be handled by an attorney we will tell you so. I will give you plenty of warnings, and may even do so in writing just to be sure you got the message and we can prove it later. But an honest attorney will also answer your questions and tell you what to expect, given the information they have in front of them.
32 32 Everything You Need To Know About Car Accident Cases BIG PICTURE CONCEPTS YOU NEED TO KNOW In this section of the book, we will explain some of the bigger concepts in car accident cases that you should know. We will do this in an easy to understand manner. However, that means it will not be as detailed and complete as it could be. This is a consumer guide not a law school textbook! So please understand that everything you are about to read has exceptions and caveats and additional information we are leaving out on purpose to keep it simple. Liability & Negligence Who Is At Fault? The very first thing we attorneys will look at it is - who was at fault for the accident? You only have a car accident case if the other driver caused the accident. And not only that, but they must have caused the accident by doing something negligent. Negligence is a word that has specific meaning to lawyers. Generally, it means somebody made a mistake that caused an
33 33 Everything You Need To Know About Car Accident Cases accident. You can be negligent by doing something you should not do, or by failing to do something you should do. Most often, these mistakes involve violating one of those rules of the road that you learned in driver s ed. Contributory Negligence Things like running a red light, following too closely, and failing to yield the right of way to oncoming traffic are all examples of mistakes people commonly make while driving. If one of those mistakes causes an accident, then you have negligence. Maryland is one of the few states that still follows the doctrine called contributory negligence. This doctrine examines what YOU did that may have caused the accident. If you contributed to the accident through your own negligence, no matter how small, you lose the right to make any claim against the other driver.
34 34 Everything You Need To Know About Car Accident Cases This doctrine can create some harsh results. If you are even 1% negligent, but the other guy is 99% negligent, you get nothing. That can be harsh. So if you make a slow rolling stop at a stop sign one night, and the other guy comes down the road drunk, with no lights, doing 90 miles an hour, you could still lose the right to sue him for anything. In any Maryland car accident case, the insurance company will be looking for that 1% fault on your part, so they can deny your claim based on contributory negligence. That is why it is important NOT to give a recorded statement. They are looking for contributory negligence. The law on this subject gets complicated. If you think you may have an issue of contributory negligence, you should ask an attorney.
35 35 Everything You Need To Know About Car Accident Cases Assumption Of The Risk This is another defense to liability, but it is not nearly raised as often as contributory negligence. For the insurance company to win based on this defense, they must prove you knowingly and voluntarily encountered the danger that caused your injuries. How often is that going to happen when you are just out for a drive? This defense is more often seen in slip and fall cases in Maryland, which is a whole other topic involving completely different law. Damages In order to have a valid personal injury case, you must have damages of some kind. If you have a minor accident and you are completely unhurt, you have no case. You may have a case for your property damage (any collision is going to probably cause some damage to your car) but you do not have a personal injury case.
36 36 Everything You Need To Know About Car Accident Cases And you must have damages that are caused by the accident. Your treating doctor has to be able say that he or she relates your personal injuries to the accident within a reasonable degree of medical probability. This is a fairly high standard. If a doctor cannot say that, then you do not have a case. Often, the insurer will try to claim your injuries were not caused by the accident, but by some other problem. Most often, they will claim you had pre-existing injuries. This can be defeated by the testimony of your treating doctor, and by your own testimony as to when the pain started to bother you. But do not be surprised if the insurance company tries to peg your new pain after the accident to the injury you had 10 years ago. In Maryland, your damages will usually consist of your medical bills (even if they are paid by your health insurer), your lost wages (even if covered by leave), and your non-economic damages. Non-economic damages are also known as pain and suffering. It includes your physical pain, but it also includes your time and inconvenience. It is usually the largest part of your award in a personal injury case, but is also the hardest to pinpoint.
37 37 Everything You Need To Know About Car Accident Cases How much is your case worth? That is hard to answer. The truth is, your case is worth whatever the jury thinks it is worth at the end of a trial. Figuring that out is the tricky part. Juries are different in different counties, and that means your accident case is going to be worth different amounts depending on the county where the accident happened. This may seem arbitrary and unfair, but it is how the system works. Juries in Maryland are usually more conservative in awarding damages than elsewhere in the country. And if you live in Southern Maryland, you live in one of the more conservative areas of the state. That will affect the value of your case. We will not know your medical bills or your pain & suffering until you are finished medical treatment. We will not know your lost wages until you go back to work. After you are finished with medical treatment and back to work, we can give a reasonable estimate of the value of your case. Even then, many other factors come into play. Do you have permanent damages or are you fully recovered? How did the accident happen? The worse the accident, the higher the potential value of the case. Who is the negligent driver? The proverbial little old lady driving to church on
38 38 Everything You Need To Know About Car Accident Cases Sunday is going to have sympathy from a jury. The drunk coming home from the bar on Saturday night is not. Insurance Coverage Who pays for the damages? Technically, the negligent driver is on the hook to pay for your damages. However, the actual payment almost always comes from an insurance company. Maryland, like all states, requires everyone driving a car to have insurance that covers them if they cause an accident because they were negligent. The insurance company must provide the other driver with a lawyer, and will pay for the damages caused in the accident according to the insurance policy. So your damages will almost always be covered by insurance. This is usually true even if the other driver had no insurance, or too little insurance to cover your case because you actually have insurance for that particular situation. This is called uninsured or underinsured motorist coverage (UM/UIM) and you will probably see it on your insurance policy if you look. It also covers you for a hit and run driver, known as a phantom vehicle case.
39 39 Everything You Need To Know About Car Accident Cases In Maryland, the minimum amount of insurance required to drive a car is $30,000 per person, and $60,000 per accident no matter how many people are injured. This is called a 30/60 policy. That is NOT enough to cover you while driving on the road. In fact, it is ridiculously low. In this day and age, with the cost of medical treatment what it is, that is not going to come close to covering you if you cause an accident resulting in even medium sized injuries, much less serious injuries. You should be sure that YOU have enough insurance coverage to protect yourself if you cause an accident. You should also be sure you have uninsured/underinsured motorist coverage for your own car in the same amount. If the person causing your accident has no insurance (uninsured) or too little insurance (undersinsured) your own policy will make up the difference up to the maximum level of insurance you buy. It is very important to have UM/UIM insurance, and to be sure it is high enough to cover you. Check your policy. How much should you get? Twenty years ago, most people were OK to get a 100/300 policy ($100,000 of coverage per person and $300,000 per accident no matter how many people were injured). With increased medical costs, this may not
40 40 Everything You Need To Know About Car Accident Cases cover you today. The number one predictor of the value of any case is the amount of medical bills. Even a medium size accident can run up $25,000 in medical bills pretty quickly. We recommend you get at least a 250/500 policy. That is $250,000 per person and $500,000 per accident. You will usually be covered by a policy of that size. And if you have assets to protect, get a policy high enough to protect them. Before you decide against paying more for insurance, you should call your car insurance company and see how much it would cost. You may be surprised at how little it is. If you are ever in a serious accident, you will be thankful you did. And while you are at it, ask them about an umbrella policy too. If you have significant assets to protect, you better do it. We are not in the business of selling insurance, but we do believe advising you to be covered is sound legal advice. Why bother? Because if the injured person cannot get satisfaction from your insurance coverage, they get the excess amount from you personally. If you have a 30/60 policy, and cause an accident where the damages are $100,000 for one person, then you will have to pay $70,000 out of your own pocket ($100,000 damages minus $30,000 coverage). That can be financially ruinous, and you may have to file for bankruptcy.
41 41 Everything You Need To Know About Car Accident Cases DETAILS, DETAILS, DETAILS... In this section, we will explain some of the details you need to know about some of the most common issues that come up after a car accident case. This book won t cover everything that could come up. If you have an issue that is not covered here, be sure to get a free consultation with an attorney to get your questions answered. Property Damage Just like the adverse driver (or, technically, their insurance company) has to pay for your personal injury damages, they also have to pay for damages to your property. This is a separate claim, and you can settle your property damage claim separately from your injury claim. Unlike personal injury claims, we do recommend people handle their own property damage claims. If you need guidance from an attorney, you can call one for a consultation first. We help answer property damage questions from clients all the time. But you can deal with the adjuster handling the property aspects of your claim yourself. Just be sure you do not talk about your injuries. Refer them to your lawyer for that.
42 42 Everything You Need To Know About Car Accident Cases If your car is damaged but not a total loss, then you will get it repaired. The insurance company has to pay for the repairs. The law very clearly says that you get to choose your body shop or mechanic. For years the insurance companies forced people to use their own mechanics. Finally someone filed suit to resolve that issue and the Courts said you get to choose. So if you have a guy who you trust to fix your car, you can use that person. However, if you do that, you are buying a potential fight with the insurer. You will win it, but they will cause delay and problems if you do not use one of their approved mechanics. If you want to pick your own mechanic, make sure the mechanic will do the fighting for you. Make them responsible for fixing the car and getting paid by the insurance company so that you do not have to pay out of your pocket. They should do that in exchange for your business. Once the car is fixed, be ready to get it fast. The mechanic can and will charge you for storage fees. This sounds grossly unfair, and sometimes is, so do not get caught in it. Just pick up your car immediately when it is ready.
43 43 Everything You Need To Know About Car Accident Cases If your car is a total loss, then you will just get a check for its fair market value. Unfortunately, the law does not force the insurance company to give you enough to pay off your car, or even to buy a replacement car. They have to pay you the fair market value of the car in the condition it was in at the time of the accident. This is often known as blue book value. However, that value has nothing to do with your loan balance, or the value of your car to you personally. You may have an old clunker that runs, and is therefore very valuable to you. But on the open market, it is only worth two thousand dollars. You cannot buy a new car for that amount, but that amount is what you are entitled to under Maryland law. And if you owe on your car loan, the insurance company will pay off that lien first. You will only get the remaining amount between the value of the car and the amount owed on it. If the value is less than the amount owed, you have problems. You should go to a couple of reputable blue book sites on the internet and find out what your car is worth. Kelly Blue Book is probably the best known. Be armed with some knowledge of how much your car is worth before the insurance company starts waving checks at you.
44 44 Everything You Need To Know About Car Accident Cases Don t just take the first offer. You can negotiate this settlement like any other. And you have the right to sue over this issue if you need to. However, most people cannot wait the 3-6 months it takes to get a court date and have that resolved. Very few of these disputes go to court for that reason. However, you can do it. If you do, read our guide on litigating small claim actions. That should work if the value of the case is less than $5,000. If the value is more, you can also use Section of the Maryland Courts & Judicial Proceedings Code. You will have to get evidence about the value of the car, and you may need to pay an expert witness (car salesman) to testify for you. If you are contemplating this route, make sure you get a consultation with an attorney before you file suit. You can buy back your car and get it fixed by your own mechanic if the blue book value is not worth it to you. The insurance company has to pay you the fair market value, but they also will make money on the car through salvage. You can buy back the car for the salvage value and they will give
45 45 Everything You Need To Know About Car Accident Cases you the car. So you get the fair market value less the salvage value. Then you can decide if you want to put money into it to keep it running. This is not commonly done, but it is an option. It is possible if you have an old clunker that runs, and the insurer wants to total it because of body damage. If you don t care about the body damage, and the car is drivable, you can buy it back and keep it. This may also work if your Uncle is a car mechanic and gives you the back yard mechanic deal on getting your car running again. Rental Cars So how are you going to get around while your car is in the shop, or until you can buy a new car? The at fault insurance company must provide you with a rental during this time period. And they must provide you with a comparable vehicle. If you were driving a four door sedan, they cannot put you into a subcompact.
46 46 Everything You Need To Know About Car Accident Cases Rental cars often create headaches for the victim of a car accident case. Be prepared to have some hassles, and to have to do some arguing with the insurance company. IF the insurance company immediately accepts fault for the accident, getting a rental will be little problem. The problem will come when you want to keep it a little longer and the insurance company wants to quit covering it. They have to cover it for the reasonable amount of time it takes to get your car fixed, or until they issue the check for the total loss. What is reasonable? Be prepared to argue that question if your mechanic needs to orders some parts, or if you want to keep looking for a new car longer than one day. The real problems come when the insurance company does not make a quick decision on liability. Sometimes, their own insured won t talk to them. Rather than presume that means he or she is negligent, they just make no decision. That leaves you in limbo.
47 47 Everything You Need To Know About Car Accident Cases Hopefully, you have rental car coverage on your own insurance policy. Then you can get it covered by your insurer, and they will fight to get reimbursed from the adverse driver s policy. If you do not have rental coverage on your own policy, and the adverse driver s insurance company does not make a quick decision on liability, then you are forced to rent the car yourself and seek reimbursement later. This can be very hard on the pocketbook, we know. But there is no other way. One last side note, it is strictly illegal and unethical for an attorney to pay for the rental car for you. In fact, it is unethical for an attorney to advance you any money against your case. We know it does happen sometimes, but not by ethical attorneys. Lump Sum Settlement The adverse driver s insurer does not pay directly for your medical bills, and does not directly pay you for lost wages. When they settle your personal injury claim, they give you one lump sum designed to cover all of your damages medical bills, wages, and pain & suffering.
48 48 Everything You Need To Know About Car Accident Cases That brings up a very good question: who pays for your medical bills and lost wages before you get your settlement? Paying For Medical Bills & Lost Wages Who pays for these items? Well, you do! You are going to have cover these immediate expenses yourself. Hopefully, you have health insurance to pay your medical bills, and you have leave to pay for your lost wages. If so, you can cover them now (with your insurance or leave) and you will get reimbursed later from your settlement. We know this is inconvenient. It is an inconvenient system. But this is how it works. As long as you have health insurance, this system works pretty well. Your health insurer foots the bill, and you pay the co-pays. When you settle the case against the adverse driver, you must reimburse your health insurance company for the money they paid for your medical care. They have a lien on your case, and if they assert it by writing us a letter, we can be legally obligated to honor it.
49 49 Everything You Need To Know About Car Accident Cases This system actually works in your favor, because your health insurer pays less than the full amount of your doctor s bill. Therefore, you reimburse them for less than the full value of the medical bill. For example, if your doctor bills $500 for some procedure, your health insurer may only pay her $250 for that procedure. Your damages are the full value of the bill ($500), but you only need to reimburse the health insurer the $250 they actually paid out. It s when you do not have health insurance that things really become a problem. Luckily, you do have a friend called PIP. PIP PIP stands for Personal Injury Protection. This is an insurance policy available to you through your own insurance, and it covers your medical bills and lost wages after an accident. Almost every driver in Maryland has $2,500 worth of PIP. That is the minimum PIP coverage in Maryland. It is not expensive to get higher limits. We recommend you consider getting $5000 or even $10,000 worth of PIP. Please note you must bring your PIP claim within one year of your accident.
50 50 Everything You Need To Know About Car Accident Cases Whether you have health insurance or not, PIP will pay the first $2500 of your medical bills. So you will get at least that much of your doctor s bills paid. In fact, it stretches more than that. PIP will usually pay a portion of the amount the doctor bills, just like any other health insurance company (they never give the doctor full value). So $2500 of insurance may buy $3500 of medical care. Once your PIP is used up, you must find another way to pay for the medical bills, or your doctor can give you medical care on credit, if your attorney promises to pay them from the amount recovered by you in the accident case. Most doctors will do this, but some will not. Use PIP First If you have health insurance, you should still use PIP first until it is used up. Then you can use your own health insurance for the remaining bills. Your health insurance company will have a lien on your accident case, and you will have to pay them back when your case settles or you get a verdict. If the lien is too big, your attorney will have to work out a deal with them so that you get enough to compensate you.
51 51 Everything You Need To Know About Car Accident Cases This is not true with PIP. You do not pay PIP back for the money they pay for your medical bills or lost wages. So use PIP first. When it runs out, then use your own health insurance. Settlements and Taxes Personal injury settlements are not taxable under state or federal laws. Your settlement compensates you for medical bills and pain. That is not income under IRS definitions. The only exception to this involves money you receive for lost wages. If a jury awards you a certain sum for lost wages, then you have to pay taxes on that part of the award only. This makes sense. You normally pay taxes on your wages, so you should pay taxes on money designed to compensate you for them. You would not normally pay taxes on money given to you for medical bills or pain. That isn t money you earned.
52 52 Everything You Need To Know About Car Accident Cases Statute of Limitations This is very important. You must file your case in Court before a certain date set by the statute of limitations. The normal statute of limitations for injury claims in Maryland is 3 years. That can be shorter or longer depending on the case. For example, you must make a claim against a government, including county and city governments, within 180 days. If the injury is to a minor child, the statute of limitations is 3 years from their 18th birthday. That can be a long time down the road. If you do not file your case by the statute of limitations, your claim will be forever lost. You really should consult a lawyer for your car accident case sooner rather than later, but do not ever wait until the last minute. If you do, a lawyer may not take your case because it is too close to expiring! And if you want to settle your case without going to court, you should do so way before the Statute of Limitations runs out.
53 53 Everything You Need To Know About Car Accident Cases WHAT HAPPENS DURING MY CAR ACCIDENT CASE? Most people hire an attorney for their car accident case. The consultation is free, and the attorney is paid on contingency, meaning they take a percentage of what they win for you. The attorney will also advance the costs for you. Therefore, you pay nothing out of pocket for your accident case. Most car accident cases follow the same pattern. In a nutshell, the process is: 1. You get medical care and get well. 2. We get all the documentation we need (police report, medical records & bills, proof of lost income). 3. When you are released from your doctor s care, we send a demand to the insurance company; and 4. We negotiate for a fair settlement 5. If that is not possible, we file suit and your case will be litigated. It may still settle before trial, or it may go to trial and a judgment will be rendered by the jury In the beginning, your will have two jobs (1) you must follow doctor s orders and get well soon, and (2) you must keep us informed about your progress and medical treatment. We will gather the medical records, the medical bills, and your lost wage information. We will get the police report, and hire someone to investigate the accident if we think we need to.
54 54 Everything You Need To Know About Car Accident Cases We will put together the demand and negotiate a fair settlement with the insurance company. If we cannot settle your case, then we will have to file suit and litigate your case. You will have to do more work then. You will have to help us answer written questions about you (called interrogatories) and gather additional documents (like tax returns). You will probably have to sit for a deposition. We will be there to protect you during it. Then you may have to be a witness at your trial. All of this takes work on your part that is unavoidable. In fact, the outcome of your case will depend on how helpful you are during this stage. At the start of your case, it is impossible to predict if you will need to go to Court. That depends on the settlement offered by the insurance company. Most of our clients receive a reasonable settlement offer prior to trial. Often you have to file suit and litigate the case, but these cases do often settle prior to the actual trial. But sometimes the insurance company is not willing to be reasonable, or there is a significant dispute over one or more issues, and a trial is necessary.
55 55 Everything You Need To Know About Car Accident Cases There may be a dispute as to who caused the accident and how. Or, there may be a dispute about the amount of medical treatment you receive, or how much a pre-existing condition played into your case. Many things can cause a case to go to trial, and it is impossible to predict whether or not your case will. ATTORNEYS FEES You do not have to pay up front for an attorney. We take our fee from the amount you get in settlement or recover in trial. This is known as a contingency fee. Our fee is contingent on your recovery. Most attorneys charge 1/3 of the total settlement. We do that too. Some attorneys may charge 40% or even 50%. We think 50% is way too high. (Charging more than 50% is not allowed by the ethical laws.) We put up the money for all of the costs in your case as well, and get reimbursed out of your recovery. HOW AN ATTORNEY CAN HELP We definitely recommend you retain an attorney to help you with your car accident case. Of course, we hope you will choose us. But if not, retain another competent, honest attorney to handle your case.
56 56 Everything You Need To Know About Car Accident Cases The insurance company has deep pockets and heavy resources they will use against you. They will act in their own best interests, and their interests are to pay you as little as possible. This is true no matter how nice they treat you now. For better or for worse, our legal system is an adversarial system. That means the two parties are on opposite sides of the fence, and must battle it out to get to the truth. That means the insurance company is on the opposite side of the fence from you. You need someone on your side to assist in getting a fair settlement. We firmly believe that the insurance company will never give you as much for your case if you do not have an attorney. Our firm has been handling personal injury cases for over 40 years. We have the experience to guide you through the process and get a fair settlement for your case. If your case needs to go to trial, we are experienced litigators. There can be a lot at stake in a personal injury case, so it pays to have a professional on your side. We hope this guide has been helpful and answered your questions. We wish you a quick recovery from your injuries. If you have any questions, feel free to contact us.
57 57 Everything You Need To Know About Car Accident Cases LOCAL RESOURCES Southern Maryland has a lot of great non-profit organizations that can help you and your family if you are facing a need. These are a few we know, trust, and highly recommend. Legal Aid Bureau: legal services without cost United Way of Charles County: has the definitive list of local Human Services Agencies right on their website. Lifestyles of Maryland: They pretty much do it all, or can refer you to someone who can. Housing, food, medical, financial, employment, transportation, etc College of Southern Maryland: A lot more than classes! They provide fitness, and give health & wellness classes for all ages Greater Baden Medical Services: primary health care or Health Partners Free Clinic: primary health care services or
58 58 Everything You Need To Know About Car Accident Cases THE FREE LEGAL CONSUMER GUIDE SERIES at What You Need to Know About Bankruptcy and Foreclosure What You Need to Know About Divorce and Child Custody What You Need to Know About Workers Compensation What You Need to Know About DUI & DWI How To Handle A Traffic Ticket Why You Need A Will & What To Do About It How to Handle Your Own Small Claims Case GET MORE FREE LEGAL ADVICE Sign up for our free monthly newsletter, with more legal advice, tips on how to keep your family safe, and our insiders commentary on newsworthy legal events like sensational crimes and new laws. Find the sign up form on our home page. You can also see past examples of our newsletters.
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