Birmingham Injury Blog

One thing that is often surprising to our clients when they have been injured in a car wreck or truck wreck is that the health insurance company (BlueCross BlueShield, United, etc.) which has paid for medical treatment often has the right to recover the amount of money that it spent on medical treatment. This right is called a "subrogation" right, which means that the health insurance company can “stand in the shoes” of the injured person and recover its money from the wrongdoer.

When a health insurance company pays medical bills, it normally does not pay dollar-for-dollar but instead pays a percentage. It is that lesser percentage (for example $200.00 on a $1000.00 bill) that must be reimbursed. Normally, the health insurance company will negotiate with the injured person and will reduce the amount that it claims as subrogation by the amount of the attorney’s fee being paid by the injured person to his or her attorney. This makes sense as the injured person has hired an attorney to create a “pool” of money from which the health insurance company is reaching into and drawing from. So the health insurance company should have to pay its share of the attorney’s fee to create that. This has the effect of lowering the amount that the injured person must pay back to the health insurance company.

The law changed a number of years ago so that the Jury can now hear that the injured person has health insurance and how much the health insurance company actually paid. We will address this in a separate blog post, but we did want to alert you to this fact and to be watching for this blog post from us.

If you have been injured in a car wreck or truck wreck and would like to talk to us, we are always happy to schedule a free consultation with you.

“Adding insult to injury” – that is what it is like to be crashed into in a car or truck wreck and have medical bills that are turned over to a debt collector or a collection law-firm. If you are dealing with collectors because of your injuries in an automobile crash, we hope this blog post will be of some assistance.

Why am I getting collection notices? It could be your health insurance company is not paying the bills as quickly as they should. It could be that you have no health insurance or it excludes bills for car wrecks. Remember you may have “medical payments” insurance on your car insurance that would pay for some of the bills. But ultimately the insurance company for the driver who is at fault should pay – but this rarely happens until the whole case is settled. This is because the insurance company wants to use leverage and pressure from collection agencies and collection law-firms to force you into a settlement for less than you should – just to get these collectors off your back.

Every situation is different but remember that collectors, whether lawyers or non lawyers, cannot harass you. On our consumer blog – Alabama Consumer Law Blog – we have several articles about dealing with collectors that might be of interest to you:

When Can An Alabama Consumer Sue A Debt Collector - Part II?
Should An Alabama Consumer Contact A Consumer Lawyer When First Contacted By A Debt Collector?
Collection Letters Are Often Illegal In Alabama

We wish you the best of luck and please contact us if you have questions about harassing debt collectors or about your car wreck if you are not already represented by a lawyer.

We recently ran across these statistics showing the number of car wrecks and automobile accidents in Alabama for the years 1971 to 2003. The report was release by the Alabama Department of Public Safety and is titled, "Alabama Traffic Wreck Statistics (1971-2003)."

The report is a reminder of just how dangerous Alabama highways and roadways can be and a reminder of how all of us can be or will likely be in a car wreck sometime in our lives. The report does not break down the statistics by county, city or type of roadway, other than to note rural versus urban. As one might expect, there were significantly more wrecks on "urban" roadways versus rural. For instance, in 2003 there were approximately 100,000 car accidents on urban roads and a little over 40,000 wrecks on urban roads. We are not sure under which category state highways fall.

One interesting statistic, and a bit of good news, is that even though the overall number of wrecks has steadily increased over the years (in 1985 the total number of wrecks was 113,000 and in 2003 it was 141,000) the total number of fatalities and injuries in wrecks has remained about the same. For instance, the total fatalities in 2003 was 1001 compared to 1096 fatalities in 1986. This is a testament to the safety and design features found in modern cars.

If you would like to look at the study in more detail you can view it by clicking here.

You've been in a car wreck in Alabama, you still hurt and are recovering, and now you start getting calls from the insurance adjuster for the person that hit you. What should you do?

There is nothing necessarily wrong with talking with the insurance adjuster. They are usually very nice to you, which is obviously in their best interest. Their goal is to settle the claim for what they call a "reasonable amount" or to "reasonably compensate you for your injuries." The problem is that our experience here in Birmingham and through out the state of Alabama is that insurance companies often have a far different idea of what is fair or reasonable compensation for your personal injuries than you do or than your lawyer will.

Inevitably, the adjuster will want to take a statement from you "just to document their file." We are usually reluctant to let them take a recorded statement of our clients. If it is truly just to document the file, then they shouldn't have a problem letting you take a recorded statement of their insured for their file. We have never had one take us up on this request.

In truth, they are trying to pin you down to a recorded statement in hopes that you might say something that doesn't check out or is inconsistent with something that you previously said at the scene or might later say in deposition or at trial.

If you do give a recorded statement, the adjuster will likely ask you some background questions about your medical history, employment, etc. They will then ask you questions about the car wreck, i.e., where you were going, how fast you were driving, what you saw, what happened, etc. They will usually finish by asking about your injuries. During the statement they will try to pin you down to the exact story. And be sure, they will hold you to this in the future.

If you give a statement, the adjuster is going to look very critically at your claim including your statement, the accident report and the medical bills and records to see if there is anything they can find to discount your claim. They will compare your statement to their insured's version of what happened and whatever other records they can obtain.

If you have had any preexisting back or other injuries, they will significantly discount the value of your case regardless of whether you were having no problems before the car wreck or automobile accident. If you say anything that doesn't check out with their insured's version, they will also discount your claim.

In truth, there is no advantage to them in evaluating your claim for settlement purposes in taking a recorded statement rather than just speaking with you or taking written notes. If they are pushing you to do so, we recommend you contact an attorney prior to giving a recorded statement.

We've never seen a claim settle for more money where an injured party has given a statement. In fact, we see quite the opposite. You should always remember that the insurance adjuster represents the insurance company. He or she is not your friend and does not keep their job or get raises by paying out lots of money on claims. They get these things by saving the insurance company money. If you do feel like you need to give a statement, consult an attorney before doing so.

In Alabama, like most other states, Insurance companies are required by law to offer uninsured or underinsured (also known as UM/UIM) motorists coverage. You will only not have this coverage if you opt out of it. Unfortunately, many people opt out of this coverage and don't even know it.

First of all, what is UM or UIM insurance? This is insurance coverage that will pay if you are hit by another driver who doesn't have insurance or where they don't have enough insurance to cover your injuries. You must first exhaust the other person's insurance before you can tap into your own insurance. The cost to have this type coverage is only a few dollars a month for a minimal policy of $20,000 or $25,000.

Why would someone opt out if this coverage? Most people opt out of this type coverage without even knowing they are doing so. In order to do so, you must expressly in writing agree to that you are waiving UM/UIM coverage in your policy. Typically, we see clients who, when buying auto insurance, told their agent that they wanted to cheapest policy available, not knowing that this would opt then out of this important insurance. While some good agents will explain UM/UIM coverage and why they wouldn't want to waive it, many do not. The person buying insurance is given a stack of papers to sign without explanation and many don't read through what they are signing. (To be honest, I don't know many lawyers who read all of what they are signing. The papers are very complex, single spaced, and in small print. And, if you want to purchase an insurance policy you'll have to sign.)

However, we believe it is not a good idea to waive UM/UIM to only save a few dollars a month. If you are injured through the fault of another who doesn't have insurance the results can be devastating. For example, if you were hit by someone and that caused you to be out of work for 2 months, and if you have UM, you could make a claim for lost income on your own insurance. Otherwise you would be out that money with no recourse.

We highly suggest your purchase this coverage. And, if for some reason you decide you do not want it, make sure you understand exactly what you are giving up and make sure your agent has explained it to you.

On our Alabama Consumer Law Blog, we recently posted about the requirement by Hyundai to submit any claims to arbitration. While you ponder that from a consumer standpoint on being able to properly enforce your lemon law rights, consider this interesting video of a Hyundai van. We don't know the details but it does cause you to raise an eyebrow, eh?

Here is one more car wreck video - of course in the real world the impact is not always so controlled but this does show what happens to a car in a frontal impact....

This video is a little bit long (15 minutes) but it is very interesting to see what happens to various popular vehicles when there is an impact from all different directions. This reminds us why the human body can be so badly injured - even if the car survives - that force and energy from the impact can travel to the human body. We hope you find this video interesting and educational and make your own experience with crashing cars limited to watching videos....

We found this YouTube video showing what happens when a 4X4 t-bones an older (1992) Honda. This shows the terrible impact that can result when high speeds are involved in a wreck. Be careful out there driving....

You can also see the vulnerability of SUVs to roll over when in a wreck.

Many car wreck cases can be settled without having to file a lawsuit. Insurance companies have whole divisions of workers set up to process and resolve car wreck claims. Though you are trying to get as much money as you can for your claim, and they are trying to pay you as little as they can, you both typically have the same goal, resolving your claim without a lawsuit. For both sides, lawsuits bring added expense, added time and added uncertainty.

An insurance company looks at three main things in deciding whether to settle a claim.

- First, was their insured at fault? Even if they decide the first one in your favor, they will then look at the second issue.

- Second,are the injuries you are claiming related to or caused by their insured?

- And finally, what is the value of those injuries?

Obviously, someone with mild back pain has a claim that is worth much less to them than someone who has suffered a broken leg or who has had to have back surgery as a result of the wreck.

If you or your lawyer are not able to get the claim resolved, then a lawsuit will have to be filed. Once this happens, a typical case in Alabama state courts is not set for trial, until at least 9 months to a year after being filed. Oftentimes, most cases will not be tried at the first setting, either due to other cases being set before them, or difficulty for both sides in having the case ready for a jury trial.

Filing the lawsuit

In order to initiate a lawsuit, a “complaint” must be filed by the plaintiff. This filing sets forth the basic facts of what happened, show the court your are suing the defendant in, sets forth the legal theories of why the defendant is liable to you, sets forth your damages (how the defendant hurt you) and asks the court for relief, in other words, what you want a judge or jury to do to help you.

Defendants have thirty days in state court and twenty days in federal court to answer the allegation. They will typically ask for and be given an extension. Shortly after all of the defendants answer, the judge will enter a scheduling order setting out deadlines for the parties meet in preparing their case for trial and setting the trial.

Discovery

Discovery is the part of litigation where the lawyer and parties set about finding out what the other side’s position and evidence in support or in defense of the lawsuit will be at trial. Discovery is made basically of both sides asking each other questions about what happened and what they expect to tell the jury. These questions can be written (Interrogatories, which each side will have to answer in writing), oral (Depositions, where each party or witness is asked questions in front of a court reporter who records everything that is said during the deposition) and Requests for Documents, which are requests that require the other side to produce documents supporting their position at trial.

Dispositive Motions

At the end of discovery, a party may file a motion with the court, asking the judge to decide certain issues. In these motions, the parties can ask the court to decide certain legal or factual issues, which they believe are not in dispute. They may even ask the court to dismiss the case or throw it out of court for lack of evidence.

Trial

While most everyone knows what trials are, few people other than lawyers have a good understanding of what goes on at a trial. Few trials have what lawyers call, “the Perry Mason” moment, where one side breaks down crying on the stand and admits it was all their fault.

Each side presents their evidence and testimony before a judge and jury. This can take several days or several weeks for long complicated trials. The judge manages the trial and makes legal ruling on the evidence and law. At the end, the jury considers the evidence and rules in favor of either the plaintiff or the defendant in the form of a judgment.

Post Trial

If either side is not happy with the trial, they have the right, within the time limits set out by court rules, the ask the judge to vacate the judgment or to appeal the judgment. The appeals are also costly and can be very time consuming. Many appeals can take from six months to a year before the appellate court rules and the case is resolved.

If you are unable to get your claim resolved without having to file a lawsuit, be patient. Your case will move forward and you'll get your day in court. It will, however, take longer than you think it should, which in and of itself explains why it is preferable when you can to settle without having to go to trial.

After most all wrecks, assuming there aren’t obvious or catastrophic injuries, most times, both parties get out of their cars, look at the damage and ask the other person if they are OK. And, most people answer “Yes, I’m fine’ without even thinking about it. It is akin to someone you see on the street asking how you are doing. Out of habit you answer, “I’m doing fine” or “I’m doing well, how are you.” You may have a whole host of issues going on, but don’t let on.

Most everyone who has been in a wreck is shaken up pretty good. They are scared and have a lot of adrenaline running through them. Even if they are in pain, most are not feeling it at that time. Oftentimes, it is not until that night or the next day that your neck or back does not start to hurt.

If you have been in a car wreck, it has been our experience that you should be checked out by a doctor immediately. Rather than diagnose yourself, or let the person who hit you diagnose whether or not you are injured, you should let a doctor do that. You should get yourself to a doctor immediately.

After seeing a doctor, you should follow his or her recommendations to the letter. That means, going to tall follow up visits, taking the recommended medications, doing any and all prescribed physical therapy.

Additionally, you should be as honest with your doctor as you can. A lot of my male clients will tell me about the pain they were in after the wreck only after much prying. But when I read the medical records, there is little mention of pain. They later tell me that they didn’t want to appear to be weak or whiners or that they’d learned to deal with pain and didn’t want to appear to be complaining too much. This only hurts their ability later on to be compensated for the pain and suffering they endured as a result of the wreck.

Some of our clients have found it helpful to keep a journal of their treatment and injuries. Understand, however, if you do this that it may be discoverable by the defendant. Therefore, we only recommend doing it if you will do it consistently, that is every day or virtually every day over the course of your treatment, and only write down things you wouldn’t later mind being read to a jury. The best way to assure that you do this is to only write down the truthful facts about what you are experiencing, not your opinions, of your experiences, your treatment, doctors or dealings with the person who hit you or the insurance adjuster. This should include your treatment, your pain, and your limitations as a result of the pain.

Continue reading "What Should I do if I’ve been injured in a Car Wreck? Part II, The Treatment." »

Car wrecks or automobile accidents are one of those unfortunate parts of life that we all hope we’ll never experience. However, chances are that just about every Alabama driver will be in a wreck at one time or another, whether it is our fault or the fault of another. Often times, people are not significantly injured in wrecks. However, there are some wrecks that result in someone being injured.

If you were injured and the wreck was someone else’s fault, you may have a claim against that person. Every car wreck case hinges on two issues.

- The first is liability (Can you prove that the wreck was the fault of the person who hit you?)

- The second is damages. (Can you convince an insurance adjuster, or judge or jury if you can’t settle the case that the injuries and/or pain you say were caused by the person that hit you actually was?)

Most cases we see actually come down to the second question.

If you are in a wreck and have been inured, what you do immediately after the wreck and in the first few days can significantly affect your chances of recovery for the injuries you sustained in that wreck. If you are reading this after a wreck, then you have experienced this, and if you have never been in a wreck then you can only imagine what happens to your body during a wreck.

Though we will discuss in more detail what actually happens to your body during a wreck in a later post, needless to say it can be a very violent and traumatic experience. First and foremost, you should always wear your seat belt. But, even with that on you body can be thrust forward or backward suddenly, and stopped and yanked in the opposite direction just as violently and suddenly. Additionally, there are the objects within the car you can hit or be hit by, including the airbag, the steering wheel, or parts of the dashboard or door.

It is hard to imagine the force of an impact because our cars are big and heavy and we feel safe in them. Yet, even a low impact wreck can cause a significant jostling to your body, which can cause long term injury to your back, neck and other joints.

If you have been in a wreck, you should immediately contact the police to let them come and fill out a report. This will serve as documentation of the fact that the wreck actually occurred. Additionally, the officer should take down every one's information and other information, such as, weather conditions, road conditions, each person’s statement as to how the wreck occurred and list any witnesses to the wreck.

On the issue of witnesses, it is vitally important that you identify anyone who could be a potential witness and take down their contact information and try to get them to stay to speak with the police officer. Oftentimes, many witnesses will not want to get involved and will only stay around to make sure everyone is OK and then leave. Once they are gone it is you word against theirs as to how the wreck happened.

Whether you are sure you have been injured or not you should be checked out by a doctor immediately. Right after a wreck, most people’s adrenalin is pumping and it is not until hours or days later that they actually realized the extent of their injuries. A delay in treatment can cause two problems. First, and foremost, it may limit your ability to recover. Second, if you wait a few or even several days to see a doctor, you may have problems proving that you were actually injured in the wreck.

Finally, if you have been injured you will have to decide whether to hire an attorney to represent you. Your insurance policy probably requires you to notify your own insurance company that you have been in a wreck. However, you will likely be contacted shortly after the wreck by an insurance adjuster who will immediately begin processing the claim. First, you will have to decide whether to speak to the adjuster about your claim. See our post here addressing speaking to an attorney first. In doing so, they are also preparing a case against you. They are gathering information about you and the wreck, looking for inconsistencies, and anything else they can find to pay you as little as they can. Remember, no matter how nice the adjuster is, their goal is not to make sure you are taken care of. Insurance companies are for profit businesses and the less they pay you, the more money they make.

Stay tuned for future posts on what to expect in treatment of your injuries after the wreck, settlement, litigation and trial.

We are often asked by friends and potential clients whether they should consult with an attorney after a car wreck or whether they should just deal with the other person's insurance company. Rather than reinvent the wheel, we direct you to an excellent post dealing with this question by lawyers at the Houston Injury & Accident Law Blog.

Here are a few excerpts from this excellent post:

Here is the plain truth--Allstate, and the other insurance companies who send these types of letters, do not care anything at all about you or whether you receive a fair settlement.

In fact, the insurance company's own statistics prove that its costs the insurance industry an average of $9000 more per claim when the injured person has a lawyer.

The reason the insurance companies try to convince people not to hire an experienced lawyer is because they know they can settle the case more cheaply if the injured person doesn't have a lawyer.

The truth is that you should always at least consult with an attorney before settling a personal injury or wrongful death claim

If you have been injured in a car wreck, you may or may not need to hire a lawyer but it will never cost you anything to meet with us or any other reputable plaintiff's attorney to evaluate the options you have for your car wreck case.