AUTO ACCIDENT INJURY CLAIMS IN WASHINGTON

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1 AUTO ACCIDENT INJURY CLAIMS IN WASHINGTON BY PERSONAL INJURY ATTORNEY TRAVIS ELLER Being injured in an auto accident is bad enough. Many are injured again by the insurance industry. INSURANCE COMPANIES ARE NOT YOUR FRIEND Insurance is important. We all depend on it. But, it is important to remember with all the marketing to contrary aside insurance companies are not charities. Their mission is to maximize profits, not fully pay you for what your claim may be worth. DON T INSURANCE COMPANIES JUST AUTOMATICALLY PAY CLAIMS? No. Insurance companies are for-profit businesses. They need to keep costs down. That means paying you as little as possible zero being optimum no matter how legitimate your claim may be. Here are some common insurance company tactics. Low-balling. Insurance companies often make absurdly low settlement offers, sometimes not even enough to cover your medical expenses. Surveillance. Insurance companies sometimes follow injury victims around and secretly video them. Want to play with your kids, or keep up the gardening even though it causes pain? Insurance companies use secret outof-context video of injury victims to make it appear they are faking or exaggerating very real injuries. Spy on-line. Insurance companies often seek access to your Facebook and other online accounts, even seeking to subpoena this information. They sometimes seek all your s going back months. Deny legitimate medical bills. Insurance adjusters who have no medical training arbitrarily may decide how much of your doctor s prescribed treatment they want to accept and pay for. Force you to be examined by the insurance company s doctor. Insurance companies often seek to force injury victims to be examined by a doctor chosen and paid for by the insurance company. Many of these wellpaid doctors get much of their income from examining injury victims at the behest of insurance companies. Some have no patients of their own, and get most if not all of their income from insurance companies, who are in turn interested in limiting the injury claim any way possible. Insurance companies refer to these as independent medical exams. Auto Accidents in Washington pg. 1

2 This is not a stock photo. Three of our clients were injured in this vehicle, one quite seriously. GET THE INSURANCE COMPANY TO PAY ATTORNEY FEES Our attorney fees are contingent on the outcome you do not owe any attorney fees unless we win your case. You may be entitled to have an insurance company reimburse some of those fees. I ripped off a lot of people and I feel bad about that.my goal at the time was to save [the insurance company] money, not settle claims for what the case was worth. A former insurance adjuster for a major insurance company as quoted in the Wall Street Journal WHAT CAN AN ATTORNEY DO FOR ME? A personal injury attorney is familiar with all the insurance company tactics, and the best ways to combat them. A personal injury attorney will have a better sense of the settlement value of an injury claim than someone not experienced with injury claims. As a result of low-balling and other tactics, you may have no other recourse but to file a lawsuit to get the insurance benefits to which you are rightfully entitled. The insurance company will have legions of attorneys and other experts on its side. You should, too. WHO PAYS FOR THE ATTORNEY? Attorney fees. Like most law firms, we do not charge an attorney fee unless we pursue an injury claim successfully. Our fees are solely a percentage of any funds recovered on the client s behalf. 1 Generally, each side pays its own attorney. There are exceptions. You may be entitled to have your own insurance company reimburse you for attorney fees and other costs under a Washington State Supreme Court case called Mahler. 2 Also, under certain circumstances you may be entitled to have the other driver s insurance company reimburse some of your attorney fees. 3 Ask a personal injury attorney about these fee-shifting possibilities, and about what happens to the money under that attorney s fee agreement. Remember, each law firm drafts its own fee agreement, with its own terms. There is no standard attorney-client contract. 1 The Rules of Professional Conduct require that the client be ultimately responsible for out-of-pocket costs. Ethics rules applicable to all lawyers in Washington require this. See RPC Mahler v. Szucs, 135 Wn.2d 398, 957 P.2d 632(1998). 3 MAR 7.3, RCW , RCW , RCW Auto Accidents in Washington pg. 2

3 HOW MUCH IS THE INJURY CLAIM WORTH? INJURY CLAIM VALUE The reasonable settlement value of an injury claim is a nuanced determination. There really is no math formula for it. A personal injury attorney can make an informed valuation after thoroughly reviewing the claim. Some people believe that the pain and suffering component is arrived at by some multiplier of the medical bills three times the medicals, or etc. In reality this is not a math problem. There is no objective way to measure pain and suffering damages. The value is what a jury would believe is reasonable under all the circumstances. This is like many legal concepts inherently subjective. A personal injury attorney can consider the particulars of your case and give a better answer for your circumstances. The attorney can usually get a better sense of it after medical treatment is complete or at least stabilized, and there has been ample time to investigate the claim. A BRIEF SUMMARY OF THE LAW OF INJURY CLAIMS IN WASHINGTON Entire libraries have been published on the subject. A complete legal treatise is well beyond the scope here, but a short summary follows. Comparative fault. Washington is a pure comparative fault state. This means fault can be divided between two or more parties by any percentage that adds up to 100. For instance, in a two-car collision, one driver might be found 100% responsible. Or, the two drivers might each be found 50% liable for causing the collision. In that case, if one of them is injured, then his or her damages medical bills, lost wages, pain and suffering are all reduced by the 50% liability on his or her part. Medical bills. An injury victim is not automatically entitled to having all medical bills paid. In court, the injured party must not only produce the medical bills, but must also present proof that the medical bills are reasonable in amount, related to the claim, and medically necessary. The injured party can not get medical expenses in a judgment merely by presenting the bills alone. This is true even if the other side presents no medical testimony to challenge medical expenses. 4 [M]edical records and bills are relevant to prove past medical expenses only if supported by additional evidence that the treatment and the bills were both necessary and reasonable. 5 4 Patterson v. Horton, 84 Wn.App. 531, 929 P.2d 1125(1997). 5 Patterson v. Horton, 84 Wn.App. at 543 (1997). Auto Accidents in Washington pg. 3

4 BURDEN OF PROOF In court the injury claimant must prove all elements of the claim including medical treatment prescribed by his or her doctors - by the legal standard of more probably than not. Police reports. Many people assume that because they are official reports, law-enforcement accident reports prove who was at fault. This is not the case. The police report itself is hearsay. The information within it is also hearsay. The information is often terse and may not reveal the whole story. The police though well trained and well meaning are neither jurors nor judges. They do not make the final determination as to who was at fault, or for what. That is the function of the courts. The police report is always a good place to start, but it does not end the inquiry. Burden of proof. The person making an injury claim has the burden of proving all necessary elements of the negligence claim. It is not necessary to prove the truth of each element by the beyond-a-reasonable-doubt standard familiar from criminal law. Instead, the injury claimant must prove each element of negligence on a basis of more probably true than not. Elements of negligence. A person claiming injury must prove each of the following on a more likely than not basis. o Duty. An injury victim must prove the existence of a duty. This is usually not difficult in an auto-accident injury claim. For instance, every driver has a duty to drive at a speed safe for the conditions, to keep a reasonable look-out for other vehicles, and various other duties, many of which are formalized by statutory rules of the road. 6 o Breach. Proving the existence of a duty is usually not difficult. Proving a breach of a duty may or may not be. For instance, if there are no independent witnesses and two drivers dispute how the accident happened in a he-said/she-said swearing match, this can be challenging for the person claiming an injury. That does not mean that these cases can never be won. It just means some cases simply come down to who is more credible. o Damages. Damages must be proven. The insurance company lawyers may dispute any or all types of damages claimed. Insurance companies often hire medical experts to second-guess the medical treatment. They also sometimes hire experts who offer the opinion that the pain and suffering is all psychological all in the injured person s head even if all the friends and family as well as treating doctors say it is anything but. Damages recoverable in a personal injury claim include : (1) physical pain; (2) mental suffering and anguish; (3) lost earnings and impairment of earning capacity; (4) reasonable cost of necessary medical treatment, hospital care, nursing services, and related expenses; 6 See, for example, Hough v. Ballard, 108 Wn.App. 272(2001). Revised Code of Washington Chapter Auto Accidents in Washington pg. 4

5 (5) physical disability, or the incapacity to lead a normal life. 7 STATUTE OF LIMITATIONS Any lawsuit must be initiated within the applicable statute of limitations or it is lost forever. As a policy, our firm will usually file any claim in court no less than six months before the statute of limitations runs. Proximate cause. In addition to the above, the person claiming injury must prove proximate causation. This concept is a little nuanced, but means at some point if a cause is too remote legal responsibility does not attach. The example often given in law school is Farmer Brown s cow burns down Chicago. The farmer places a lantern too close to the milk cow, who kicks it over. The barn catches fire, then the house, spreading to the neighbor s house, and so-on until the whole city of Chicago burns down. Is Farmer Brown responsible for burning the entire city? Probably not. Too remote. In injury claims insurance companies may argue that the injured person had pre-existing conditions, even if the person never had pain or other symptoms before; or, that some subsequent event caused some or all the damages. WHAT IS THE PROCESS? Typically it is best to wait until the medical treatment is complete, or at least until the medical conditions have stabilized. Then the attorney gathers all medical records and other relevant documents and presents a demand package to the other driver s insurance company. If the case can not be settled out of court a lawsuit must be filed. Even after the lawsuit is filed most cases settle, though some do not and must be tried in court. Although it is generally best to wait for the medical treatment to play out, any lawsuit must be initiated within the applicable statute of limitations or it is lost forever. As a policy, our firm will usually file any claim in court no less than six months before the statute of limitations runs. That way there is more than enough time to make sure the lawsuit is filed and the papers can be correctly served. Generally in Washington the statute of limitations is three years. Calculation of the exact date can be tricky, and it is best not to wait to get legal advice about your situation. CONCLUSIONS We hope this short primer on Washington auto accident injury claims has been helpful. Please see our website for additional e-books on related topics. Feel free to contact us if we may be of assistance. 7 Paris v. Johnson, 3 Wn.App. 853 at 860 n.2, 479 P.2d 91 (Wash.App. Div. 1970). Auto Accidents in Washington pg. 5

6 ABOUT THE AUTHOR TRAVIS SCOTT ELLER Travis Eller has been representing the injured since NITA Advocate. Mr. Eller has completed National Institute for Trial Advocacy ("NITA") Advocate designation. NITA is the nation s leading provider of legal advocacy skills training. The advocate designation requires completion of the NITA Trial Skills and Deposition Skills workshop seminars as well as a trip to NITA headquarters in Boulder, CO for an elective. Mr. Eller chose Advanced Public Speaking as the elective. MENSA. He is a member of MENSA the largest and oldest high IQ society in the world, open to people who score in the 98 th percentile or higher. Toastmasters. Travis is active in Toastmasters, a non-profit educational organization helping members improve public speaking and leadership skills. Personal life. Travis Eller is the proud father of two teenage boys. He enjoys science fiction, history, football, and skiing. Auto Accidents in Washington pg. 6