Legal Options After You’ve Been in a Car Accident


According to the statistics, you will be in about three or four car accidents in your lifetime. This means that an average driver will file an auto insurance claim about every 17.4 years after they get their driver’s license.

Since this is a relatively rare event, many people do not remember what to do after a car accident. Every car accident is different and what you did the last time might not fit this accident.

Also, laws and practices can change over time and 17.4 years is certainly a long time. If you moved to a different state, bought different insurance coverage, or changed insurance companies, your claim might be handled differently than your prior claims were.

Here is an overview of your legal options after an auto accident.

Determine Whether You Live in an At-Fault or No-Fault State

Your legal options depend on your state’s auto insurance system. When states set up their insurance systems, they have two systems to choose from — at-fault or no-fault.

  • At-fault: Under this system, the insurance company for the driver who caused the accident must pay for the damages caused by their insured. If the at-fault driver has no insurance or the damages exceed the at-fault driver’s policy limits, you can sue the at-fault driver for negligence in causing the crash.
  • No-fault: Under this system, you file a claim with your insurer regardless of who caused the crash. Every insurance company must pay claims for their insured once an investigation establishes that a car accident caused the damage and injuries claimed. If the damages and injuries meet a statutory threshold, you can sue the at-fault driver. But if they do not, the at-fault driver is immune from a lawsuit, and you must rely solely on your insurance benefits.

The benefit of no-fault insurance is that claims are usually paid much faster. Since insurers do not need to determine fault, insurers can review and pay claims more quickly. Moreover, insurers for different drivers in the accident do not need to meet and agree how to allocate fault for an accident where multiple drivers contributed to the cause of the accident.

The disadvantages of no-fault systems is that no-fault benefits only cover certain damages. For example, many no-fault systems only pay damages for bodily injury and will not pay damages for pain and suffering. In these states, you might not receive compensation to cover grief counseling and support, for example, because grief might be considered ‘pain and suffering’ instead of ‘bodily injury.’

The advantage of at-fault systems is that the at-fault insurer must pay for all damages for which the at-fault driver is liable. So, if you require counseling for PTSD after a car accident in an at-fault state, you can include those costs in your insurance claim and your lawsuit, if you need to file one.

The drawback of at-fault systems is that you might never collect anything if your accident was caused by an uninsured driver who has no assets. You cannot file an insurance claim against someone with no insurance, and you should not waste your time suing someone with no assets to pay you when you win. As a result, you will need to pay for all your health care services, even though someone else caused the accident.

Your insurer might offer optional uninsured motorist coverage and med pay coverage in your policy to cover this situation. But if you declined these options, you will get nothing. By contrast, in a no-fault system, you are always entitled to be paid by your insurer.

File an Insurance Claim

In no-fault insurance states, your only option is to file an insurance claim with your insurer. The no-fault states and territories are:

  • Florida
  • Michigan
  • New Jersey
  • New York
  • Pennsylvania
  • Hawaii
  • Kentucky
  • Massachusetts
  • Minnesota
  • North Dakota
  • Utah
  • Puerto Rico

In at-fault insurance states, you can either file an insurance claim or file a lawsuit. Although most of the time you should start with an insurance claim, nothing would prevent you from filing a lawsuit and forcing the insurer into court to defend or settle the case.

In an at-fault state, you have a choice whether to file a claim with your own insurer or the at-fault driver’s insurer. If you are not at fault, there is no harm in filing with your insurer first. But your claim could be delayed because your insurer will ultimately forward the claim to the at-fault driver’s insurer for payment. This might mean you need to pay out of pocket to doctors and rehab and physical therapy centers while you wait for your insurance settlement to arrive.

As a result, many people choose to file a claim directly with the at-fault driver’s insurer. This is the reason why most states require you to exchange insurance information at the scene of an accident. Everyone must know the insurance information for the drivers involved, so the insurers can sort out who was at fault.

If fault is obvious, the at-fault driver’s insurance company may concede liability. For example, the police might have responded to the scene of the accident and given a ticket to one of the drivers. Under a legal doctrine called negligence per se, the ticketed driver is probably liable for the accident. As a result, the insurance company risks a claim of bad faith if it does not accept liability in this situation and begin processing claims.

Follow Up on Your Insurance Claim

Although a lawyer can help when you file your claim, the real value of having a lawyer is when you follow up on your insurance claim. Insurance companies know that you are desperate and inexperienced. If you are unrepresented, an insurance company will send you a low offer in the hope that you will accept it. Unfortunately, many insurance adjusters do not even offer enough to cover your medical treatment and pain relief treatment in their first offer.

They do this because their job is not to settle claims fairly. Instead, their job is to settle claims as inexpensively as possible. They work for the insurance company and saving money on claims makes their employer more profitable.

As you follow up on your claims, the insurer will try to find ways to reduce or deny your claim. For example, if you injured your back in the car accident and your doctor ordered an MRI to diagnose your injury, the insurer might deny compensation for the imaging. They could say it was unnecessary because the doctor could have used an x-ray to diagnose the injury.

Having a lawyer helps in a few respects:

  • A lawyer knows how the insurance companies like to see claims documented. This allows the lawyer to send in the right medical records, doctor letters, and bills, so the adjuster can pay the claim rather than delaying it for more documentation.
  • A lawyer can challenge reductions and denials of claims. Insurance adjusters rely on the inexperience of unrepresented claimants when they deny or reduce claims. A lawyer can put the facts and the law into the record, so they must either pay the claim or risk a bad faith insurance lawsuit.
  • A lawyer can negotiate a settlement with the insurance adjuster. Insurance adjusters often start with a low offer, so they have negotiating room. A lawyer can push the settlement offer up by negotiating with the adjuster.

Get Medical Treatment

This might not seem like a legal option, but getting medical treatment will have an enormous impact on your legal situation. Here are a few reasons why:

  • If you do not seek medical treatment, the insurance adjuster could say you exaggerated or faked your injuries. By seeking medical treatment, you get evidence of the existence and severity of your injuries.
  • If you wait for the insurance check before seeking medical treatment, you might undershoot the amount you need. But if you get treatment early, you and your doctor can estimate how much current and future treatment you need. You can submit this documentation with the insurance claim.
  • If your injuries caused permanent disability, you need medical records to seek Social Security disability insurance (SSDI) benefits or long-term disability insurance benefits. If you delay seeing a doctor, you might put your disability attorneys at a disadvantage in filing an SSDI claim.

See a Lawyer if a Family Member Was Disabled in the Accident

If you had a family member who was seriously injured in the accident, you may need to talk to a lawyer about your family member’s legal affairs.

If your family member was disabled with brain injuries and cannot make legal decisions, such as healthcare and financial decisions, you may need to seek guardianship of your family member. The process for seeking guardianship varies in each state. But in a typical situation, you would consult an attorney who practices family law to prepare a petition for guardianship.

The lawyer will file the petition with the local court and a judge will hold a hearing. In that hearing, the judge will examine the reasons for the petition and, if no one opposes it, grant the guardianship. The guardianship is usually temporary unless a doctor testifies that the disability is permanent and will not improve.

Once guardianship is granted, the guardian can take legal actions on behalf of the ward. For example, if your parent was injured in the accident, and you received guardianship, you could pay bills, make healthcare decisions, and sell property on their behalf. But guardianship is a fiduciary relationship so everything you do as guardian must be for their benefit.

Wrap Up the Legal Affairs of any Family Member Killed in the Accident

If a family member was killed in the accident, you will need to wrap up their affairs. Usually this includes finding their will and having a probate lawyer file the will with a court. After the estate has gone through probate, the executor can distribute the decedent’s assets as instructed in the will.

If you are named as the executor, you will take control over the decedent’s legal affairs. You will close the decedent’s accounts and pay off any outstanding bills. You will liquidate any assets that the will does not address. For example, if the will does not say who inherits the decedent’s baseball card collection, you will usually sell it on behalf of the estate and add the sale proceeds to the estate. You will also work with an accountant to pay income taxes on behalf of the deceased person and notify the IRS that the person died.

Pay Your Tickets if You Caused the Accident

Up until now, it has been assumed that you were the victim and the other driver caused the accident. If you caused the accident, you need to worry about possible criminal liability for the accident.

In most cases where a law was broken, the police will issue a traffic citation. As long as you pay the fine, your criminal exposure will end.

If the police find aggravating circumstances, such as you caused the car wreck while fleeing the police or you were intoxicated with drugs or alcohol when you crashed, you might be charged with a crime and arrested after the crash. You will remain in jail until you have a bail hearing, and you have a bail bond service post bail for you.

If you make all your required court appearances, your bail is returned at the end of the case. But if you skip bail, the court revokes your bail and the bail bondsman will send a bounty hunter after you to take you to jail.

You will need to work with a criminal attorney to either reach a deal or fight the charges. If you are found guilty or take a plea deal, you will be sentenced by a judge to jail or probation.

Many legal issues will appear after a car accident. By understanding your legal options, you can take care of everything that needs addressing.

 

 

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