Settling a car accident claim involves conducting an investigation, consulting with experts, reviewing insurance policies, calculating the amount of the settlement demand, dickering with the insurance company, filing a lawsuit to gain leverage (sometimes), and finally, drafting and signing a formal settlement agreement.
In all likelihood, you or your lawyer will be negotiating with the defendant’s insurance company who will actually pay the claim. Your damages claim will be composed of several components (medical bills, pain and suffering, etc.) that are authorized by law. The most important deadline you will face is the statute of limitations deadline for filing a lawsuit – typically two years after the date of the accident. It is acceptable to have your lawyer negotiate your claim for you.
The Initial Investigation
The key to winning a car accident claim negotiation is to convince the other side that you are able to take your claim to court and that you will likely win if you do. This reality requires you to assemble evidence that will be admissible in court, even if you never end up there. It also requires you to deeply understand the facts of the case and how they apply to Connecticut personal injury law. A thorough investigation is likely to result in the collection and analysis of:
- The police report of the accident;
- The terms of the defendant’s insurance policy;
- Eyewitness reports;
- Photographs of the scene of the accident and the damage to both vehicles;
- Cell phone records (if texting and driving is an issue);
- Medical bills (to document your damages);
- Deposition testimony from the defendant (if a lawsuit is filed); and
- Many other items.
The Role of Experts
An expert can help your claim in three ways:
- Interpreting the facts, assessing the likelihood that your claim will be successful, and calculating the value of your claim;
- Releasing a sworn statement that can help you gain leverage in negotiations;
- Answering questions at a deposition if a lawsuit is filed; and
- Testifying at trial if your claim ends up in court.
You might, for example, retain an accident reconstruction specialist to help you determine whose fault the accident was. If you suffered long-term debilitation, you might also retain a medical expert to help you calculate your long-term medical expenses.
The Insurance Policy Review
Insurance companies draft their policies very carefully in order to exclude certain items from coverage. The wording can get quite tricky, which is why they are so difficult to read. If your lawyer cannot read it, however, you need to get yourself a new lawyer. In some cases, the language itself will contain ambiguities.
If an ambiguity arises, you can be sure that the insurance company will interpret it in a manner that is most beneficial to its own interests in order to minimize or exclude coverage. It is your lawyer’s job to discover any ambiguities in the policy language, even when they are not obvious. When faced with ambiguous policy language, Connecticut courts typically interpret the language in a manner that is most favorable to the insured, not the insurance company.
Calculating the Value of Your Claim
It is absolutely critical that you understand the true value of your car accident claim right from the outset. Your claim might be worth more than you think it is, and if you don’t realize that, the insurance company is certainly not going to remind you – you will simply walk away with less than you deserve.
Accurately calculating the value of your claim can be especially important if you suffered a long-term injury. If you underestimate the full extent of your future medical expenses and thereby end up running out of money ten years from now, you won’t be able to come back to court or to the insurance company to ask for more money. Once you sign a settlement agreement, the amount of your settlement might as well be carved into stone.
The elements of a car accident compensation claim
A typical car accident claim is composed of the following elements:
- Medical expenses: Currently due medical bills are, of course, easy to quantify. Calculating anticipated future medical bills, on the other hand, can be tricky.
- Wrongful death damages (sought by the personal representative of the victim’s estate): These are available if the victim died in the accident.
- Lost earnings: You might have had to miss a few days of work due to your accident, and you deserve to be compensated for that. At the other extreme, new physical limitations imposed by your injury might prevent you from returning to your job, or you might even find yourself unable to work again at all.The more you lose this way, the more compensation you will be entitled to. As a general statement, the more you were making before the accident and the further away you were to retirement age when the accident occurred, the more money you will likely be entitled to.
- Incidental expenses: An injury results in all kinds of indirect losses. Perhaps you needed to hire a babysitter to watch your kids while you were in the hospital, for example. Maybe you incurred medical treatment-related travel expenses. You are entitled to reimbursement for all of these expenses.
- Property damage: If the accident totaled your car, for example, you are entitled to reimbursement for its value.
- Non-economic damages such as pain and suffering, disfigurement or mental anguish: These can be claimed, and the amount of this compensation is reasonably likely to add up to more than half of the value of your entire claim.
- Loss of consortium: If you are married and you suffered a serious injury, your spouse might be able to file a “loss of consirtium” claim for his or her loss of what, due to your injury, you can no longer provie – financial support and/or household services, love, companionship, affection, society, sexual relations, emotional, support, etc.
- Punitive damages: Punitive damages, if awarded at all, are awarded in addition to all of the forms of compensation mentioned above. Punitive damages are awarded in less than five percent of all claims, however, because they are only awarded if the defendant acted outrageously.An accident caused by an intoxicated driver, for example, or an injury caused by a criminal assault would be a good candidate for punitive damages. In Connecticut, however, punitive damages are limited to the cost of litigation plus attorney’s fees.
Identifying the Appropriate Defendant(s)
Non-commercial Connecticut drivers are required to carry minimum auto insurance of 20/40/10 – $20,000 per person for physical injury, $40,000 per accident for physical injury (in case more than one person is injured in the accident), and $10,000 for property damage. If your claim is large, you might have trouble finding a defendant who is able to pay it all.
Suppose, for example, you suffered $100,000 in losses because you were hit by a driver who carries only minimum insurance. In that case, you would need to find a second defendant to pay your claim. Depending on the circumstances of your case, possible second defendants might include:
- The defendant’s employer;
- The manufacturer of a defective auto part;
- A nightclub that sold alcohol to the defendant immediately prior to the accident; or
- Other possible defendants.
Negotiating with the Insurance Company
Insurance companies are in business for a reason, and the reason is not to compensate injured car accident victims – it is to make money. And insurance companies don’t make money by paying claims. Add to this sobering reality the fact that you will probably be negotiating against a professional negotiator (the insurance adjuster) with a large bag of negotiating tricks at his disposal, and it is easy to see why it is best to allow your lawyer to do the negotiating for you.
Filing a Lawsuit
Injured car accident victims often file lawsuits against insurance companies while negotiations are ongoing. Filing a lawsuit doesn’t mean that there will necessarily be a trial. This is because the trial will probably be scheduled several weeks after the complaint is filed, and you can continue negotiating after a lawsuit is filed. Typically, the purpose of filing a lawsuit is to gain bargaining leverage over a stubborn insurance company by showing them that you mean business.
A civil lawsuit complaint, which initiates a lawsuit, must be drafted carefully because every sentence has consequences. Even a small mistake could delay the adjudication of your case or even doom your claim. A skilled personal injury lawyer will be adept at drafting your complaint in a manner that maximize your chances of eliciting a higher settlement offer from the insurance company or, if necessary, winning at trial.
Going to Trial
Only a small percentage of car accident claims ever go to trial. Although, at trial, your claim is decided by a jury, you are free to reach a settlement at any time before the jury announces a final verdict. It is even possible to reach a settlement after a final verdict is reached. In that case, your bargaining leverage is your ability to appeal the verdict. You can agree not to file an appeal in exchange for a settlement that is more favorable than the terms of the verdict.
Drafting and Signing the Settlement Agreement
The final stage of reaching a car accident settlement is drafting and signing a settlement agreement. The agreement must be drafted carefully. And if it is drafted by the insurance company, you are going to need a lawyer to review it for you. This is because it is possible that some sort of trick will be included in the wording that could lead to a nasty surprise when it comes time to collect your money.
The insurance company will certainly insist on inserting a clause that prevents you from coming back and asking for more money later if your circumstances change. The settlement agreement is an enforceable contract, and if the insurance company fails to pay you according to its terms (an unlikely scenario), you can take them to court to force them to pay.
Only You Can Take the First Step Towards Justice
If you have been injured in a car accident that was caused by someone else, you can file a claim against the appropriate defendant without concern that you will have to testify in court – fewer than ten percent of all car accident claims ever go to trial. Ironically, however, if you want your claim to be taken seriously, you are going to have to retain a lawyer who the other side knows is capable of winning at trial; this is the best way to motivate the other side to settle.
Call Berkowitz Hanna 24/7, or contact us online for a free consultation so that we can answer your questions. We serve clients throughout Connecticut from our offices in Stamford, Bridgeport, Danbury, and Shelton.