INJURY LAW 101. Training Series for Non-Lawyer Support Staff TRAINING WORKBOOK

Transcription

1 INJURY LAW 101 Training Series for Non-Lawyer Support Staff TRAINING WORKBOOK

2 Injury Law 101 Training Tape 1: The Basics Training Tape 1 Injury Law 101: The Basics 1

3 I. Part One: An introduction to us and to injury law. A. Who do you work for? 1. What is an injury lawyer? - Injury lawyers represent the rights of people who are injured in an accident that was not their fault. 2. What do we do? - Injury lawyers help people hurt in accidents get compensation for their injuries. 3. Why are we needed? - Insurance companies are in business to make money and, therefore, often convince injured people to settle their claims for far less than what they are actually worth. - The victim needs someone who will stand up for them and fight for their rights, someone who will make sure they are treated fairly. B. What do you need to know to work for an injury law firm? Some understanding of legal terms and definitions will help you better understand the legal environment in which you are working. 1. Legal terms and definitions. a. Tort - Civil wrongful act or failure to act, which leads to another person being injured. That injured person has the right to seek and recover money for his or her damages. - Examples: car accident, slip & fall, dog bite, medical malpractice, job-related accident, defective product, etc. b. Standard of Care - Degree of care with which a reasonable person conducts himself. Each of us has a duty to make sure someone is not injured by our actions or failure to act. - When standard of care is violated, there is a tort. c. Tort Reform - Political movement by conservative representatives to make laws that would limit the amount of money damages an injured person can recover. d. Claim - Process of explaining what happened, what the injuries are, the costs of medical treatment, the amount of property damage, as well as asking for compensation. Training Tape 1 Injury Law 101: The Basics 2

4 - The value of a claim is determined by the nature of the accident, the type and severity of injuries, the amount of lost wages, the medical costs, etc. e. Claimant - Our client; the person injured in the accident who is asking for compensation for the damages they have incurred. - If the claim cannot be settled out of court, the claimant becomes the plaintiff. f. Plaintiff - Injured person seeking compensation through a lawsuit against the party believed to be at fault. - The one filing a complaint. g. Defendant - Person or company believed to be at fault; the one accused of causing the damages to the injured person. - The one who must defend his actions against the plaintiff s accusations. h. Liability - The legal responsibility for damages caused by a person or company s own carelessness. i. Negligence - The carelessness that causes or contributes to the accident or injury. - Ex. driving on the wrong side of the road, failing to stop and rear-ending another car, driving to fast, etc. j. Damages - The monetary compensation for loss or injury to a person or property. - Damages may include compensation for medical costs, lost wages, repair expenses, pain & suffering, etc. k. Recovery - The money that an injured person obtains for damages at the end of a case. l. Settlement - The amount of money we recover; the money an injured person accepts from the defendant or the defendant s insurance company without going to trial. m. Insurance Adjuster - His job is to determine the value of the claim. Training Tape 1 Injury Law 101: The Basics 3

5 - Are also called claims specialists, claims representatives, or claims analysts. - Because they work for the insurance company, they will sometimes undervalue claims. n. Pre-litigation - The work and effort put into a case leading up to a settlement without having to proceed with a lawsuit. - Includes gathering of facts, managing medical records, dealing with the adjuster, etc. - Usually concludes with a settlement demand and maybe negotiation of that settlement without having to go to court. o. Litigation - The legal action taken if a fair and reasonable settlement cannot be obtained; it involves filing a lawsuit and further legal proceedings. - Our job is to prove the client s case in court. p. Judgment - The court s final decision and determination of the rights and obligations of all parties in the case. q. Contingency fee - The standard method of charging for the legal services we render to a client. - The fee depends upon a successful outcome of the case (we don t get paid unless the client gets paid) and is typically one-third of the client s total recovery; the fee is increased to 40% or more of the total recovery if the case goes to court because of the added expenses of proving a case in court. II. Part Two: Your responsibility to our clients. A. Who can give legal advice? * Only a lawyer can give legal advice. 1. What you can tell the client a. You can tell the client only what the lawyer has instructed you to tell them. b. You can give them general status information about their case. Examples: whether or not you have received a medical report or insurance information. 2. What you cannot tell the client a. You cannot discuss your opinion with the client. Training Tape 1 Injury Law 101: The Basics 4

6 b. You cannot tell a client whether or not he has a good case. c. You cannot give a client your opinion on value. 3. A good answer when you are asked for your opinion a. I ll have to review the case with one of our attorneys and will be back in touch as soon as possible. b. Let me talk to our lawyers and get you an answer to your question. B. The importance of confidentiality 1. What is confidentiality? a. Confidentiality is showing trust or entrusting someone with private matters. b. In the legal environment, all information must be kept strictly confidential at all times. 2. Why is it important? a. It is essential to building a client s trust. b. The state bar demands it. c. It s the right thing to do. 3. What information must be kept confidential? a. Who our clients are; client identities must be kept confidential. b. A client s personal information, such as medical records, family background, past indiscretions. 4. You may have access to confidential information about our clients. a. You are not allowed to release this information to anyone. b. Not even family members, known or unknown including spouses are allowed access to confidential information. c. Even when client permission is given, the lawyers will instruct which details you are permitted to release, and to whom. Training Tape 1 Injury Law 101: The Basics 5

7 Injury Law 101 Training Tape 2: Accidents & Injuries Training Tape 2 Injury Law 101: Accidents & Injuries 6

8 I. Types of accidents. A. Auto accidents 1. Every year there are over 6 million car accidents; 3 million people are hurt and over 40,000 are killed. 2. We help people injured in not-at-fault car accidents get money for medical bills, car repairs, lost wages, pain & suffering. 3. To determine validity and value of a car accident case: a. What s the severity of the injuries? b. When did the accident occur? c. How much property damage was involved? d. Who was responsible for the accident? e. Were there any tickets issued, and if so, to whom and for what? f. What type of medical treatment was received? g. Did the driver at fault have insurance? h. Does our potential client have insurance? i. Have they missed work or do they anticipate missing any work because of the accident? B. Motorcycle accidents 1. Motorcycles are more likely than cars to be involved in serious accidents; most motorcycle accidents result in injury or death. 2. To determine value of a motorcycle case, consider same factors as auto accident case, including a. Severity of injuries b. Medical treatment received c. Insurance coverage C. Workers compensation 1. When workers are injured on the job, Workers Compensation statutes should get injured workers the money they need for medical costs and lost wages. 2. Sometimes, however, insurance companies and employers will try to deny a workers claim. 3. We must prove 3 things to help injured workers get their workers compensation benefits: a. They were injured in the course of their employment. b. Their injuries happened because of their work. Training Tape 2 Injury Law 101: Accidents & Injuries 7

9 c. They did sustain a loss: either a loss in wages or a physical impairment that prevents them from doing their job. 4. We must ask some basic questions in order to evaluate the case: a. Where are they employed? b. What s the severity of the injuries? c. What type of medical treatment was received? d. How does this injury prevent them from doing their job? e. How much time have they missed or do they anticipate missing from work? D. Medical malpractice 1. Medical mistakes are one of our nation s leading causes of death and injury. 2. Injury or death could result from: a. A doctor prescribing the wrong medication. b. Misdiagnosis or improper treatment of a disease or illness. c. A surgical mistake. d. A doctor or caregiver s careless mistake during labor. e. Overworked doctors and nurses who are tired, under pressure, and in a hurry. 3. Several factors must be considered when evaluating a medical malpractice case: a. When did the mistake happen? b. Where did the mistake occur? c. What exactly happened? d. What does the doctor claim went wrong? E. Birth injuries 1. The risk of birth injury is greatest where there is prolonged or premature labor. 2. When medical instruments are not used properly during labor, they can cause a. Skull fractures. b. Spinal cord damage. c. Brain and nerve damage. d. Facial scarring. 3. The most serious birth injuries are those that affect the brain and may lead to longterm disorders like Cerebral or Erb s palsy. 4. The cost of treatment and/or life-long care for injured infants can be very expensive. F. Social Security disability 1. A 20-year-old worker has a 3 in 10 chance of becoming disabled before reaching retirement age. Training Tape 2 Injury Law 101: Accidents & Injuries 8

10 2. People who can t work because of a disease, illness or injury may qualify to receive benefits for conditions such as: a. Cancer. b. Depression. c. Back injuries. d. Chronic heart problems. e. Other severe medical conditions. 3. Some factors to consider in a Social Security disability case include: a. How long has it been since they were able to work? b. What prevents them from working? c. Are they seeing any doctors? d. Are they taking any medications? e. When did they apply for their benefits? f. Were they denied benefits? If so, when? g. What is their age? h. Have they received or are they receiving workers compensation benefits? G. Defective Products 1. If a defective product causes serious injury, the makers and sellers may be held liable for damages. 2. There are three ways to determine if someone can be held liable for a defective product: a. Did the manufacturer of the product fail to make it correctly? - Did they use inadequate materials? - Was it assembled wrong? - Did they fail to catch the defect before it left the assembly line? b. Was there a design defect? - Was the entire product line designed with an inherent risk or danger? c. Were there sufficient warnings and instructions for the use of the product? H. Dog bites 1. Every 7 seconds, someone gets bitten by a dog, and every year, 1 million people require medical treatment and about 20 will die because of these dog bites. Most victims are children. 2. Dog attacks may cause serious permanent damage. Training Tape 2 Injury Law 101: Accidents & Injuries 9

11 3. Several questions are needed to evaluate a dog bite case: a. When did the attack occur? b. Were there any witnesses? c. What exactly happened? d. How severe are the injuries? e. What medical treatment was received? f. Does the client know who owns the dog? g. Was the owner notified of the attack? h. How did the owner react? i. Does the owner of the dog own a home? I. Premises liability 1. Landlords, businesses, and homeowners have a duty to keep their property in good condition for the safety of others. Hazards may include: a. Broken stairs. b. Slippery floors. c. Dangerous obstacles. d. Inadequate security. 2. Slip and fall is the most well known type of premises liability case. 3. Injuries can be severe and life-long, including: a. Spinal cord damage. b. Brain injuries. c. Broken arms, wrists, hips, etc. 4. Things to consider in a premises liability case include a. When did the accident occur? b. Were there any witnesses? c. How severe are the injuries? d. How did the accident happen? e. What medical treatment did they receive? f. Was there any way the accident could have been avoided? g. Did they notify someone who owns or works on the premises? h. How did that person react? Training Tape 2 Injury Law 101: Accidents & Injuries 10

12 J. Nursing home abuse 1. Over 1.5 million Americans are patients in nearly 17,000 nursing homes. 2. Each year, 1 of every 4 nursing homes is cited for causing injury or death to a resident. 3. A resident may be experiencing abuse and/or neglect if they exhibit any of these warning signs: a. Untreated bedsores. b. Open wounds, cuts, bruises, welts. c. Torn clothing or broken personal items. d. Excessive and sudden weight loss. e. Dehydration. f. Malnutrition. g. Poor personal hygiene. h. Unsanitary or unclean conditions. i. Unusual or sudden changes in behavior. K. Wrongful death 1. Wrongful death is a sudden death caused by the misconduct or negligence of another person or company. 2. The law provides for compensation for survivors when a wrongful death occurs. L. Injuries from Pharmaceuticals 1. Many dangerous prescription drugs have been taken off the market, including: a. Fen-Phen. b. Rezulin. c. Propulsid. d. Baycol. e. Lotronex 2. The FDA has to upgrade safety warnings on more than 20 drugs every month. 3. About 2 million Americans suffer severe side effects from prescription drugs and are hospitalized annually while another 100,000 will die. 4. The dangers of prescription drugs can occur when: a. Pharmaceutical companies ignore the risks. b. Doctors fail to heed warnings. c. The testing and approval process is compromised. Training Tape 2 Injury Law 101: Accidents & Injuries 11

13 II. Part Two: Types of injuries Insurance companies work with damage formulas that figure the more serious the injury, the higher the compensation value. Because this is not always an accurate gauge, insurance companies may de-value the true worth of a case by underestimating the pain and suffering of the victim. The insurance companies divide injuries into 2 main categories: A. Soft Tissue injury 1. Soft tissue injuries mainly affect only muscles and other soft connecting tissue in the body. 2. Soft tissue injuries often include a. Sprains. b. Strains, etc. 3. Evidence of soft tissue injuries lies in the injured s account of pain and discomfort rather than physical proof, therefore, pain and suffering can be extremely difficult to prove in court. 4. Insurance companies classify these injuries as less serious, thereby reducing their value. B. Hard injury 1. Hard injuries are considered more serious and are valued higher than soft tissue injuries. 2. Hard injuries include: a. Broken bones. b. Head injuries. - May result in long-term side effects such as recurring headaches or dizziness. c. Separations. d. Dislocations. e. Gashes, tears, cuts. - May require medical treatment, such as stitches, and may leave a permanent scar or disfigurement. f. Back and neck injuries. - May include damage to the spine and/or vertebrae, which can produce residual injuries and have long-term effects. - Please avoid using the non-medical term whiplash. Training Tape 2 Injury Law 101: Accidents & Injuries 12

14 g. Hard injuries may result in Residual Injury. - Residual injury leaves long-term or permanent effects. - May inhibit their ability to work, disrupt their home life, and decrease mobility. - Includes scarring, which may increase claim value if the scar is visible, large, or obvious and located on neck or face. III. The client is #1 A. The client is the number one reason we re here. 1. Without clients, we have no business. 2. We must show our clients compassion, understanding, and empathy for their pain and suffering. a. If they call, talk to them. b. If they leave a message, respond promptly. c. If they have questions, get them answers. d. Show them you have their best interests at heart. 3. Why is it important to make an effort to care for the client? a. Satisfied clients create more business. b. Satisfied clients refer family members and friends. c. Unsatisfied clients do not. B. Fight to win. 1. The client is a real person with real problems and is counting on you. 2. Each person must do all that he can to help the injured person. a. If you negotiate with insurance companies, negotiate from a position of strength. b. If you assist lawyers with research, be proactive in your search to help build a better case. c. Show compassion and empathy towards the clients. d. Fight to win for each and every client. Training Tape 2 Injury Law 101: Accidents & Injuries 13

15 Injury Law 101 Training Tape 3: Legal Liability Training Tape 3 Injury Law 101: Legal Liability 14

16 I. Part One: Liability For there to be legal liability in an accident, injury lawyers must prove that there was some kind of negligence involved and some type of damage was sustained. A. The Basics of a Tort Case 1. Liability 2. Negligence 3. Damages B. Who is responsible for the accident? 1. To determine: a. Look at all the facts of the case. b. Form theories of causation. c. Sometimes, rely on the highly technical advice from experts. C. What is legal liability? 1. The legal responsibility for damages caused by a person or company s carelessness. 2. In some accidents there is no liability because no party involved was negligent. 3. For there to be liability, there must be negligence. a. Negligence is the careless act that causes or contributes to the accident or injury. b. Examples: running a stop sign, changing lanes recklessly, driving at excessive speeds, driving under the influence, etc. D. Who is liable? 1. Must determine carelessness. a. Traffic law violations generally point to the liable party in car accident cases. b. Some violations almost always point to automatic liability in car accidents: - Rear-end collisions; it is the offender s responsibility to keep a safe following distance. - A car making a left turn; it is the driver making the left turn s responsibility to yield to oncoming traffic. c. Written police reports can show carelessness. - Will note a traffic violation. - Will indicate citations or tickets. Training Tape 3 Injury Law 101: Legal Liability 15

17 2. Must be damages (injury or loss) for there to be liability. a. Damages are the monetary compensation for the loss or injury to a person or property. b. May include: - Medical costs for the treatment received due to injuries. - Lost wages because of the inability to work. - Expenses for repairs to property. c. Must be a wrong to redress. Redress means to seek relief or remedy for the wrongful act that caused injuries or loss. E. Types of liability 1. Strict liability a. Where the liability does not depend on actual negligence or intent to harm, but is based instead on the failure to make something safe. b. Also called Absolute Liability, Liability Without Cause. c. No need to show fault; legal responsibility exists before any injury. d. Comes out of situations that either automatically pose a risk of harm or under no circumstances should pose a risk of harm. e. Also includes situations of Ultrahazardous Activity that involve unavoidable risk of serious harm to a person, land, or property of others. 2. Premises liability a. Two rules to determine liability: - The owner or occupier of the property has a legal duty and control over whether the premises are safe. They must not subject others to the possibility of injury because of design, construction, or condition of the property. - The visitor to the property has a duty to use proper conduct and use the property in a reasonable and normal way. b. Both owner and occupier of the property are held liable for any injuries. 3. Derivative liability a. Liability for a wrong that a person other than the victim has the right to redress. b. May apply to family members, as in a wrongful death suit. 4. Limited liability a. This liability is restricted by statute or contract. 5. Personal liability a. Liability for which one is personally responsible; compensation to a wronged party would be paid from one s own assets. Training Tape 3 Injury Law 101: Legal Liability 16

18 6. Vicarious liability a. Liability that a supervisory party, such as an employer, assumes for the conduct of a subordinate or associate. F. Proving liability 1. The burden of proof. a. The duty of our client to substantiate his or her claim or allegation. b. In civil law, the plaintiff must prove by the greater weight of the evidence that, more likely than not, the accident happened the way our client said it happened. c. We must prove that someone committed a careless act, and that careless act caused injuries to our client. Training Tape 3 Injury Law 101: Legal Liability 17

19 Injury Law 101 Training Tape 4: Negligence Training Tape 4 Injury Law 101: Negligence 18

20 I. Part One: Negligence Second element in Basics of a Tort Case. First steps toward showing legal liability are identifying, measuring, and proving Negligence. A. Definition 1. Negligence is defined as the careless act that causes or contributes to the accident. 2. Someone is negligent when they fail to exercise the standard of care that a reasonable, prudent person would have exercised in the same situation. B. Reasonable Person 1. The Reasonable Person is used to measure negligence. 2. The reasonable person demonstrates the attention, knowledge, intelligence, and judgment that society expects, for the protection of one s own interests and the interests of others. 3. Negligence is guided by considerations that ordinarily regulate conduct and is based on either a failure to do something that a reasonable person would do or doing something that a reasonable person would not do. 4. Sometimes, a jury must decide what is reasonable. C. How to determine negligence 1. Not everybody can be negligent. a. The age and mental capacity of a person can have a bearing on accountability as it relates to negligence and liability. 2. Evidence a. Evidence is a perceptible thing that tends to prove or disprove a fact. b. Sometimes evidence is needed to prove negligence. c. Examples of evidence include: 1. Photographs-pictures of bodily injury and accident scene. 2. Physical items-damaged property or torn, bloodied clothing. 3. Medical reports-a doctor s verification of injuries and the extent of those injuries. 4. Witness testimony-someone who saw the accident happen or someone who can confirm the extent of the damages and injuries from having been at the scene of the accident. 5. Computer reconstruction-using computer models created by an accident reconstruction specialist to visually support how the accident happened. Training Tape 4 Injury Law 101: Negligence 19

21 3. Discovery a. Finding or learning something that was previously unknown, such as facts, information, or documents that pertain to the case. b. Types of Discovery - Interrogatories are written questions submitted in list form to the opposing party under legal guidelines. They must reply in written form with answers given under oath. - Deposition is a witness s out-of-court testimony that is taken under oath and either recorded or transcribed for later use. The opposing party s attorney can be present and is allowed to cross-examine the witness. 4. Disclosure a. The required release of any information gathered during the discovery process. b. We can ask the defendant to reveal pertinent information they may have, and they can ask us to do likewise. 5. Medical records a. Give important medical evidence; medical treatment documents injuries. b. Include important information about injuries, severity, treatment, and length of care. c. Supports the client s claim of pain and suffering and will help our lawyers prove extent of damages. 6. Causation a. The causing or producing of an effect. Doing something negligent causes the accident. b. Ways to classify causation: - Proximate cause-a cause that directly produces an event without which the injury never would have happened. Also called Legal Cause or Direct Cause. - Negligence per se-negligence as a matter of law. It is based on a violation of a specific law or ordinance. - Gross negligence-an intentional or willful failure to perform a clear duty; a conscious, voluntary act or omission in reckless disregard of legal duty and of the consequences to another party. Also called Reckless Negligence, Wanton Negligence, or Willful Negligence. - Criminal negligence-when gross negligence becomes so extreme that it is punishable as a crime. D. How to measure negligence 1. Three ways to measure negligence: a. Comparative negligence Training Tape 4 Injury Law 101: Negligence 20

22 - The amount of negligence that the plaintiff proportionally contributed to the accident resulting in their injuries - Results in a reduction in the amount of damages that can be recovered by the plaintiff by the measured proportion of his or her own fault. b. Modified comparative negligence - Restriction on comparative negligence where you lose the right to any compensation if your own negligence is 50% or more in the accident. c. Contributory negligence - If a person is found to have contributed any amount of negligence to the cause of the accident, that person is denied the right to seek any compensation. Training Tape 4 Injury Law 101: Negligence 21

23 Injury Law 101 Training Tape 5: Damages Training Tape 5 Injury Law 101: Damages 22

24 I. Damages For there to be legal liability, the negligent act or acts must have caused Damage to a person or property. Damages are the monetary compensation awarded to a person who has been injured by the negligent act of another. A. What can we recover for our client? 1. The only thing we can recover for our clients for their damages is monetary compensation for the injuries and the pain and suffering our clients have experienced. 2. Our job is twofold: a. Minimize our client s suffering from his injuries by - Understanding medical issues pertaining to their injuries in order to help prevent permanent damage. - Help get them to the right doctor. b. Maximize the recovery he receives. B. Different types of damages 1. Special damages a. Damages that are considered economic items or out-of-pocket expenses. b. Examples: medical bills, lost wages, etc. c. Losses that can readily be proven and measured for which an injured person has a clear right for compensation. d. Also referred to as Actual Damages. 2. General damages a. Damages that are non-economic items; just the opposite of special damages. b. Damages that cannot be easily measured. Examples: pain and suffering, scars or disfigurement, etc. c. Pain and suffering is defined as damages that an injured person can recover for physical or mental pain caused by the accident. - Note pain or discomfort to a physician so it will be in medical records. - Encourage client to seek treatment. - Take photos of visible injuries to show progression over time. - When a client s pain and suffering is noted in medical records and pictures document an injury s severity, it allows us to negotiate from a position of strength with the insurance company. Training Tape 5 Injury Law 101: Damages 23

25 3. Mental and emotional damage a. An injured person may become emotionally unstable or depressed as a result of the accident. b. The inability to perform normal daily functions and unexpected anxiety can stress them and those close to them. 4. Spousal loss of consortium a. Awards compensation for the loss of marital services, affection, companionship, and sexual relations. 5. Post-traumatic stress disorder a. An accident can cause an injured person to fear normal activity and cause severe emotional distress. 6. Life disruptions a. Examples: missing classes or training sessions; canceling vacations, trips, or other special events; etc. 7. Future damages a. Examples: future pain and suffering; loss or impairment of a body part; scars or disfigurement; loss of earning capacity; expected or projected medical expenses; etc. 8. Wrongful death a. Must show compassion and give the family emotional support. b. Damages may include medical expenses; pain and suffering prior to death; loss of income contribution, household service, love, and companionship; etc. 9. Punitive damages a. Intended to punish the defendant for their negligent act. b. Could be imposed for road rage, drunk driving, extremely reckless driving, etc. c. Punishment for senseless acts of negligence that could have been prevented. 10. Exemplary damages a. Meant to serve as an example to deter future similar acts of negligence. b. Awarded only in extreme instances of malicious or willful misconduct. 11. Property damage a. Occurs most frequently in auto accidents; if a person is found liable for someone else s injuries, they are also responsible for property damages incurred. b. Property damage is handled separately from personal injury damage and is usually settled more quickly. Training Tape 5 Injury Law 101: Damages 24

26 C. Points of caution 1. Do not sign anything or give an insurance company any statement until you talk to your lawyer. a. Signing a release from the insurance company is binding. b. The insurance company wants injured people to sign away their rights and settle for less. c. A client should not give any statements to the insurance company until he talks to his lawyer. 2. The law takes you as it finds you. a. People must be taken as they are found, regardless of physical ability. Training Tape 5 Injury Law 101: Damages 25

27 Injury Law 101 Training Tape 6: Auto Insurance Basics Training Tape 6 Injury Law 101: Auto Insurance Basics 26

28 I. Auto Insurance We all need auto insurance for our own protection. Insurance companies sometimes give injured people the runaround because they want to pay accident victims less than they deserve. If you understand the insurance process and how it works, you can better serve our clients. A. Why is auto insurance so very important? 1. The typical defendant, the driver at fault in the accident, usually does not have enough assets to compensate our client in the event we have to go to court and there is no insurance. 2. In some states the collection laws that allow you to go after those assets are very strict. B. Different types of auto coverage that insurance companies offer 1. Liability a. The first place we look for compensation. b. Also called Third Party, Bodily Injury, Property Damage Liability. c. If a person is liable, their liability coverage pays for the injuries and property damage to the other person. d. It pays the other party for such things as: - Medical costs for diagnosis. - Medical treatment for injuries. - Property damage. - Lost income. - Expenses incurred due to the accident. - General damages like pain and suffering. 2. Comprehensive & collision a. This coverage from your own insurance company pays for the damage to your own vehicle, regardless of fault. It does not pay for bodily injury. b. We will rarely be involved in comprehensive and collision coverage payouts. 3. Uninsured motorist a. Compensation is provided from your own insurance company for you and the occupants of your vehicle with this coverage when the driver at fault in an accident does not have liability coverage. b. Insurance companies must offer uninsured motorist coverage. Training Tape 6 Injury Law 101: Auto Insurance Basics 27

29 c. Recovery is difficult because premiums are very low. d. Phantom Vehicle Rule applies in uninsured motorist claims involving hit and run accidents; requires that there must have been physical contact between the two vehicles. Prevents a person from making a false claim against his own uninsured motorist coverage. 4. Underinsured motorist a. May protect you if the driver at fault does not have enough coverage. b. However, only applies if the defendant s coverage is less than our client s coverage. 5. Medical payments (Med pay) a. Only pays for medical bills and only up to the limits of liability. b. Pays regardless of who is at fault in the accident and even if the defendant s insurance pays. c. Usually covers: - You and relatives that reside with you, when driving or riding in your insured auto or someone else s auto. - Anyone who has permission to drive your insured auto or anyone riding in your insured auto. - Anyone riding in someone else s auto if you or a covered relative is driving. d. Usually does not cover - Motorcycle accidents. - Passengers hurt in a car either owned or used by you or a relative if that auto was not listed in the policy. - Accidents that occur in vehicles used in business other than a normal passenger car. - Accidents that happen while on the job. - An accident while you were driving someone else s auto, unless you have already received the maximum amount of that car owner s medical payments coverage. 6. Personal injury protection (PIP) a. Also referred to as No-fault insurance. b. Created to eliminate injury liability claims and lawsuits in smaller, less serious accidents. c. If you re hurt in a car accident, you file a claim with your insurance company to pay for medical bills and lost wages. No-fault pays up to a certain dollar amount, regardless of fault. Training Tape 6 Injury Law 101: Auto Insurance Basics 28

30 d. No fault offers very limited coverage: - Only pays for medical bills and lost income. - Does not pay for property damage. - Does not pay for things like pain and suffering and emotional distress. - Does not pay for medical expenses and lost income higher than your policy s limit. e. Most no-fault laws do allow an injured person to file a liability claim against the person responsible for the accident. - Where this is allowed, the liability claim is called an Add-on or Add-on coverage. f. Other no-fault laws have a threshold where the injured person s damages or injuries must reach a certain level before a liability claim can be filed. Training Tape 6 Injury Law 101: Auto Insurance Basics 29

31 Injury Law 101 Training Tape 7: Auto Insurance Policies Training Tape 7 Injury Law 101: Auto Insurance Policies 30

32 I. Auto Insurance Policies Almost all states require licensed drivers of registered vehicles to have some amount of liability insurance coverage. Even where it is not required, most drivers carry at least some amount of coverage; smart drivers carry even more than is required. A. Policy limits 1. Minimum limits a. The minimum amount of liability coverage the laws of a particular state will allow. b. Minimum limits include minimums for - Per person for bodily injury. - Per accident for bodily injury. - Property damage. B. Declarations page 1. Also called the Dec page. 2. The person s individual liability coverage and all other types of coverage are listed and explained here. 3. Includes several elements: a. Policy number b. Date the policy was enforced c. Insured person s name d. Vehicle type e. Liability coverage - Per person bodily injury - Per accident bodily injury - Property damage f. Comprehensive and collision coverage g. Med pay h. Uninsured motorist (optional if not required by law) i. Underinsured motorist (if more than state minimums are purchased) C. What drivers are covered on a policy? 1. Named insured a. The person or persons who are actually named in the policy. Training Tape 7 Injury Law 101: Auto Insurance Policies 31

33 b. Follows the person without regard to what vehicle he is driving. 2. Spouse of named insured. 3. Any licensed driver living in the household with the named insured and who is related to the named insured by blood, marriage, or adoption, usually regardless of the vehicle driven. 4. Any licensed driver using a vehicle specifically named in a policy as long as he has permission. D. Does our client still have a claim if he is an injured passenger? 1. May file injury claims against the liability coverage of the driver/owner of the car they were in and the driver/owner of any other vehicle involved in the accident. 2. May not collect from both any more than total worth of their claim. 3. May not file a liability claim against the driver if that driver is a household relative. 4. May file a claim under the driver s med pay coverage. E. Stacking 1. Because underinsured motorist coverage follows the person, the law allows you to stack policies on top of each other where there is not enough coverage. 2. To find which policies you can stack: a. Does the driver at fault have underinsured motorist coverage? b. Do any passengers in either car? c. How about family members? 3. May be critical in serious cases where the medical bills are substantial and the damages are very high. 4. Clients may fear that stacking policies from relatives will increase their premiums, but the law will not allow an insurance carrier to raise their rates if you use their coverage. Training Tape 7 Injury Law 101: Auto Insurance Policies 32

34 Injury Law 101 Training Tape 8: Settle or Sue? Training Tape 8 Injury Law 101: Settle or Sue? 33

35 I. Dealing with Insurance Adjusters The first step when dealing with a case is to first try to settle with the insurance adjuster. A. Who is the insurance adjuster? 1. The insurance adjuster is known by several different titles: a. Claims analyst b. Claims representative c. Claims adjuster 2. The adjuster works for the insurance company. B. What is the adjuster s job? 1. The adjuster s job is to save the insurance company money. 2. The adjuster s job performance is based on three things: a. Their ability to spend as little of the company s money as possible. b. Their efficiency in settling claims quickly. c. Their ability to personally settle numerous claims without involving company management or company lawyers. 3. The adjuster s job often conflicts with the needs of our client. C. The Demand Letter 1. Definition: written documentation stating a client s case. 2. Includes information such as: a. Why the other person is legally liable for the accident and damages. b. What kind of injuries our client received and the severity of those injuries. c. What kind of medical treatment our client received. d. How much that medical treatment cost. e. How much money our client lost in wages due to the accident. f. Any other damages that are related to the accident. g. The total amount of compensation needed for a client. D. Factors that may affect compensation 1. Lead to higher compensation: a. If the injury is a hard injury-broken bones, head or brain injury, open wounds, spinal injuries, nerve damage, etc. b. If the majority of medical expenses are for the treatment of injuries. Training Tape 8 Injury Law 101: Settle or Sue? 34

36 c. If the treatment is considered extensive over a long period of time. d. If the recovery time is lengthy. e. If the injury caused time missed at work and significant lost wages. f. If the injury is permanent, especially if it involves loss of function. g. If there is emotional distress as a result of the injury. h. If there is significant disruption of daily life. 2. Lead to lower compensation: a. If the injury was a soft tissue injury-sprains, bruises, strains, etc. b. If the majority of medical expenses were for diagnosing injuries rather than for actual treatment. c. If the treatment was provided by someone other than a medical doctor. d. If the treatment of the injuries was minimal. e. If very little time was missed at work, if any. f. If the recovery period was short. g. If there were no permanent impairments or damage. h. If there was no emotional distress or disruption of daily life. k. If there is lack of physical evidence, photos, reliable records, witnesses, etc. E. How to deal with the adjuster. 1. There is no excuse for not being prepared, for not being organized, and for not being prompt and timely. 2. Use proactive language when dealing with the insurance company. a. The client s injuries are extremely painful. b. Refer to the seriousness of the suffering. c. Refer to the obvious negligence involved on the part of the defendant. 3. Be persistent, be truthful, and be proactive. Training Tape 8 Injury Law 101: Settle or Sue? 35

37 II. What happens if we can t settle and we have to go to court? Sometimes the insurance company refuses a reasonable and fair settlement. The insurance company may believe that there is no liability on the part of the insured, the client s damages are not as high as we say, the client s medical problems are not caused by the accident, etc. The decision to go to court is based on our belief that the client has the right to seek justice. A. Pre-litigation phase 1. This phase involves all the work and efforts we ve put into the case as it moves toward settlement. B. Litigation phase 1. Litigation is the process of carrying on a lawsuit. It is a judicial contest aiming to determine and enforce legal rights. 2. A litigation team is made up of lawyers and support staff that try cases in court. 3. Some firms refer out the cases going to court to a firm that specialize in trial cases. 4. During this phase, in addition to providing legal expertise, it is our job to give the client the confidence they need to overcome their fears. 5. Always be open and honest with the client and encourage them to ask questions about going to court. 6. Also let the client know that there is a lot of time and waiting involved in the litigation process. C. Contingency fee 1. Our fee is based on a favorable settlement or verdict. 2. The fee for handling a case in court is typically 40% because of the extra time and effort involved. D. The concept of Settled on the Courthouse Steps 1. At any time during the litigation process, the case can be settled. 2. Often, negotiations are going on during the trial period; offers and counter offers can be made. Training Tape 8 Injury Law 101: Settle or Sue? 36