25 DO'S and DON'TS Following An Automobile Accident
THE FOLLOWING DO'S AND DON'T ARE TO ASSIST YOU IN THE EVENT THAT YOU HAVE BEEN INVOLVED IN AN AUTOMOBILE ACCIDENT. THEY ARE MEANT TO BE SPECIFIC, CONCRETE SUGGESTIONS THAT SHOULD BE KEPT IN MIND ANY TIME AN ACCIDENT OCCURS. THEY WILL HELP YOU IN SUCCESSFULLY RESOLVING YOUR CLAIM WHETHER YOU ARE REPRESENTED BY AN ATTORNEY OR NOT.
- DO- Call the police after any accident. If practical, do not move the vehicles before the police arrive at the scene.
- DO- In some instances, the police will not respond to your call, especially in larger cities. In that case, get all of the information you can from the other driver. Look at his license and get his name, address, driver's license number, home telephone, work telephone, vehicle license number, insurance policy name and number.
- DON'T- Don't give a statement to the police about how the accident occurred if you are not clear headed. If you are injured, or otherwise shaken up so that you can not give a clear statement, you should advise the police officer and give him a statement after you feel better.
- DO- Secure the names, addresses and telephone numbers of anyone who comes to the scene or says they saw the accident. Do not rely upon the police to get this information. Often times, the police will get the name of only one witness or none at all.
- DO- Obtain photographs of the damage to your vehicle and of the accident scene. This should be done as soon as practical after the accident as scenes can change radically in a short period of time. If you have a camera with you at the scene of the accident, it is a good idea to photograph the accident scene, including the damage to the vehicles.
- DO- Notify the Department of Motor Vehicles of the accident. In California, the Department of Motor Vehicles must be notified of any accident where there has been personal injury (no matter how small), death, or property damage in excess of $500.00. The reporting form is called a SR1. This should be filled out and mailed to the DMV within 10 days of the date of your accident, regardless of whether the accident occurred on public or private property. Your insurance carrier is not obligated to file this report for you although some insurance carriers will do it as a courtesy for their insureds.
- DO- Notify your own insurance company of the accident even if the other party is totally at fault. For reasons discussed below, you will want to deal with your own insurance company if you have collision coverage.
- DO- Have your own insurance company cover your collision loss. If you have insurance which covers collision damage to your vehicle, I always recommend having your own company pay for the damage to your vehicle. There are many reasons for this. The primary reason is that your company owes you a duty of good faith to promptly and fairly settle your property damage. The other person's company has no such duty and can drag its feet in responding to your demand and make low ball offers. If the other party is at fault, your company will be able to get your deductible back from the other insurance carrier. Furthermore, since you were not at fault, this will not effect your insurance rates.
- DO- If you are injured, you should advise the other person's insurance carrier of your injuries, even if you do not initially intend to make a claim for your personal injuries. You do not need to give them a detailed interview or statement as described below.
- DON'T-Do not give a detailed oral or written statement to the other person's insurance carrier regarding the accident. You are not required by law to give the other person's insurance adjuster any type of statement, either written, recorded or otherwise. Sometimes adjusters will suggest that your claim cannot be adjusted unless they receive your statement. This is not true. Refer them to the police report if one was made. You should cooperate with your own insurance company in giving them a report of the accident.
- DO- Know your rights when it comes to rental car reimbursement for a replacement vehicle while your car is being repaired. Assuming the accident was fully the fault of the other driver, his insurance company is liable to you for the reasonable cost of a replacement vehicle for a reasonable period of time while your vehicle is being repaired. Numerous issues come up when dealing with the other person's carrier. First, you do not have to go to a rental car company of its choosing. However, the insurance company may often have a company that it contracts with and which will bill the insurance company directly. This will save you the inconvenience of having to pay for the rental and then obtain reimbursement at a later date from the insurance company.
If your own policy has rental car reimbursement coverage, your rights are set forth in the policy. There is frequently a limit as to how much per day will be allowed and how much total coverage exists. For example, you may have coverage of $25.00 per day up to a total of $500.00. This would allow for a total of 20 rental days. You should remember that when you rent your vehicle that the insurance company will not reimburse you for any extra insurance or collision deductible waivers which you purchase from the rental car company. If you do go through your own policy and the amount of the rental exceeds your coverage, you may recover the difference from the other person's insurance coverage if they were at fault for the accident.
- DON'T- Do not sign any authorizations sent to you by the other person's insurance company. Frequently the other person's insurance carrier will not only request a statement from you but will also request you to sign an authorization to obtain your medical records and employment records. These authorizations are usually very broad. As a result, the insurance company will have full access to your entire medical file and your entire employment file if you sign them. The better practice is to ask the insurance company what records it really wants. You can then obtain the records yourself and provide to the insurance company only those records which you believe are pertinent to your claim.
- DO- If you were injured, it is extremely important that you see a doctor immediately. This will document your injuries that were incurred as a result of the accident. People who wait days, weeks or even months before seeing a doctor jeopardize their claim. The longer one waits to see a doctor, the more difficult it is to prove that the injury is related to the accident in question. Insurance companies will frequently deny claims or make extremely low settlement offers in cases where there has been a significant gap in time between the accident and the date of first medical treatment.
- DON'T-Do not settle your property damage claim until you are fully satisfied that all repairs have been done to your satisfaction. You are not required to sign a release until the repairs have been completed and have been completed in a satisfactory manner. If you were injured in the accident, make sure that your property damage release only releases property damage claims and not other claims that you may have.
- DON'T- Do not settle any personal injury claim while you are still in pain or still treating with a doctor. Frequently, an insurance company will make a offer to settle your personal injury claim early on in the hopes of closing the claim early for a low amount. Once you have settled your claim, you cannot later come back and request further compensation even if you later discover your injuries were more serious than at first suspected. If you are still treating with your doctor at the time and the statute of limitations is about to expire, a lawsuit should be filed to protect the statute of limitations.
- DO- Submit your medical bills to your own insurance carrier, either health insurance carrier or automobile med pay carrier even if you later wish to be reimbursed from the other person's insurance carrier. If you do not do so, the bills may well go into collections and your credit will be adversely affected. In California, you may submit your medical bills to your own insurance carrier and also recover compensation for these bills from the other person's insurance company.
- DON'T- Do not believe the other party's insurance adjuster who says they are not responsible for your medical bills if you were paid by your own insurance company. California follows the collateral source rule. That law says you are entitled to recover the reasonable amount of your medical bills from the person who caused your injuries even if you have private insurance which previously paid these bills.
- DON'T- Do not believe the other party's insurance adjuster who says you are not entitled to recover for time off work if you received sick pay or disability pay for your time off work. As with medical bills, the law in California states that you are entitled to recover lost wages for the time you were off work, even if you did not lose a dime because you used your sick pay or received other disability benefits.
- DO- Know your rights as to future damages. You are entitled to compensation for all future damages reasonably certain to occur. This means that you are entitled to compensation not only for past medical bills, but the reasonable value of all future medical bills expected. You are entitled not only to lost wages, but loss of future lost wages and loss of earning capacity. If you experience continued pain as a result of your injuries, you are entitled to compensation for all pain and suffering you are expected to endure in the future.
- DO- Know your rights when it comes to general damages. General damages are non-economic damages to compensate you for pain, suffering, anxiety, and emotional distress. There is no set formula to establish general damages. There is no established ratio between non-economic damages and economic damages such as medical bills or lost wages. A good way to estimate general damages is to know what juries are awarding in other similar cases. This information can be obtained from lawyers familiar with these type cases or from researching jury verdicts at local public libraries. This can also be researched on line at www.juryverdicts.com.
- DO- Know that legally you are entitled to recover damages even if you were partially at fault in the accident. In California, comparative negligence is the rule of law. This means, that if your injury is caused by another but you were also responsible for your own injury, your claim is not barred. The amount of your recovery would be reduced by the amount your own conduct contributed to the accident.
- DO- File your lawsuit within the statute of limitations. In California you must file a claim for personal injuries within one year of the date of your accident. This means that you must actually file a complaint in the local court within that time period. If you do not do so, subject to some very limited exceptions, your claim will forever be barred by law. Effective January 1, 2003, the statute of limitations in the State of California will be extended to two years from the date of the accident for accidents which occur after January 1, 2003.
- DON'T- Do not enter into any settlement of your personal injury claim until you have recovered from your injuries and know the full extent of your injuries, your physician’s prognosis, and the cost of your future medical bills..
- DON'T- Never exaggerate your claims. From a practical standpoint, most insurance companies are sophisticated enough to recognize such tactics. The net effect is that it actually lowers the value of your claim. From a legal standpoint, exaggeration to the point of outright deception is fraud and you can be legally punished for this crime. On the other hand, you should not understate the nature and extent of your injuries. You are entitled to full and fair compensation for all of the injuries you incurred and the economic consequences which flowed as a result of those injuries.
- DO- If you have questions about the above or questions about any other aspect of personal injury law, please feel free to contact me by phone at 510-337-1600 or by email.