Do I Have a Car Accident Injury Case? And What Is My Case Worth?
» Do I Have A Case or Claim for My Car Accident?
» Special Damages and General Damages
» The Insurance Adjuster’s Compensation Formula
» Importance of Consulting an Auto Accident Injury Attorney
» The Insurance Company May Offer to Pay You Less
» Maximizing Your Car Accident Claim
The most frequently asked questions from individuals that have been injured in a car accident in Louisiana are: “Do I have a case? And what is my accident / injury case or settlement worth?”
There is no easy answer to this question because many factors are involved in calculating how much an accident victim may ultimately be able to claim in a settlement – and which, in the end, may or may not be what his or her ultimate award turns out to be. Each accident case is unique; each person’s injuries and property damages are unique; and the circumstances under which each accident occurs are unique, as well.
In general, the person who is at fault for an auto accident, and therefore that person’s liability insurance company, must compensate the accident victim. If the claim only involves damage to the claimant’s car, settlement compensation will generally be the cost of repairs or replacement of the damaged auto. However, when a person is injured in an auto accident, the personal injury portion of the case is dealt with separately from the property damage.
Do I Have a Case or Claim for My Car Accident?
As mentioned above, of the many questions we are asked on a daily basis, two are among the most popular:
- Do I have a car accident case/claim?
- What is my accident injury case or settlement worth?
The issue of how car accident cases are valued and what they are worth is discussed at length below. First, allow me to handle the first question: Do I have a case or claim?
If you have been injured in a car accident, an experienced car accident attorney may be able to assist you with recovering compensation. That said, reality is that not every car accident claim is worth money.
There are several factors that will affect whether you have a case or claim actually worth pursuing:
The Accident was Someone Else’s Fault
First and foremost, in order to have a claim, the crash at issue must have been the fault of someone other than you. If your driving was the sole cause of the wreck, recovery of any money is unlikely.
There was Visible Damage to Your Vehicle
Although major damage to your car is not absolutely necessary, it helps if the accident caused visible damage to your car. The reason for this is simple: judges and juries are human, and are more likely to believe that an injury occurred in an accident when the evidence (photos of damage) suggests a moderate to high energy impact took place.
You Were Actually Injured and Sought Medical Treatment Shortly After the Accident
Let’s be real for a moment. If the accident did not cause you an injury (for example, neck/back strains, sprains, etc.), your claim is limited to the cost to repair your car. This is why actual injuries and immediate medical treatment are necessities to a successful auto accident injury claim. Additionally, your case value will likely depend on whether you followed the recommended course of treatment prescribed by your health care providers.
Your Accident Occurred Less Than One Year Ago
In Louisiana, car accident injury claims must be filed within one year of the crash. If more than a year has passed since your accident, and you have not filed suit yet, you are probably too late and cannot pursue a claim.
You Had Liability Insurance at the Time of the Accident
As most people know, Louisiana law requires that you carry liability insurance on your car. The reason for this is simple: to ensure anyone who you should hurt in an accident has a way to recover for their property damage and medical expenses caused by you. Should you fail to have insurance at the time of a wreck, you leave yourself exposed to a collection action against you.
Additionally, Louisiana’s “No Pay, No Play” law penalizes uninsured drivers by barring their collection of the first $15,000 in bodily injury, and the first $25,000 in property damage. What this means is this: if you did not have liability insurance at the time of the accident, you cannot collect the first $15,000 in medical expenses or pain and suffering, and the first $25,000 in damage to your car, even if you were completely free from fault in the wreck.
For example, if you did not have liability insurance at the time of the accident, and all you suffered was a bad case of whiplash, your claim is probably worthless as you cannot collect the first $15,000 in injury compensation.
You Had Under-Insured / Uninsured Motorist Insurance (UM/UIM) at the Time of the Auto Accident
No matter how severe your injuries, if the at-fault driver has no money or insurance, and you did not have underinsured/uninsured insurance (UM/UIM) at the time of the wreck, your claim is probably worthless. As the old saying goes, “you can’t squeeze blood out of a stone.”
This is why I repeatedly advise my clients, friends, and family members (and anyone who will listen really) that you should always purchase as much UM/UIM insurance as you can afford. This is the only way you can protect yourself from financial ruin following a car accident.
Special Damages and General Damages
There are two categories that insurance companies use to determine how much to award a claimant who has sustained an injury related to an auto accident: special damages and general damages. Special damages include all medical care and related expenses, as well as missed work time or other lost income or earning ability. General damages include pain and other physical suffering; permanent physical disability or disfigurement; loss of family, social and educational experiences; and emotional damages resulting from any of the above.
The Insurance Adjuster’s Compensation Formula
Depending upon where the accident occurred, insurance adjusters use a variety of methods in an effort to figure out how much an injury claim is worth. For example, at the beginning of negotiations, an adjuster may add up the total medical expenses related to an injury and multiply that amount by a factor ranging from one-and-a-half to three, five, or even ten times. Generally, the more painful the injury, the more invasive and longer-lasting the medical treatment, the more obvious the medical evidence of the injury, the longer the recovery period, and/or the more serious and visible any permanent effect of the injury, the higher the multiplier.
In other cases, especially those involving “soft-tissue” damage only, the adjuster may arrive at a proposed value by determining how many months of active treatment a claimant received and multiply that number by a fixed, per-month dollar amount.
Whether an adjuster attempts to fix a settlement value by adding the total medical expenses and multiplying by a set factor, or determining how many months of active treatment a claimant received and multiplying that number by a fixed, per-month dollar amount, a skilled attorney should be retained to ensure the proposed settlement amount is fair considering both the individual claimant’s particular injuries and treatment, and the jurisdiction in which the claim arises.
In more complex matters, an attorney for the insurance company will perform legal research to determine the amounts both judges and juries have awarded in prior cases in the jurisdiction where the claim is pending. The range of award values typically varies widely, and an attorney will definitely be needed to determine if the values assigned by the insurance company are fair under the particular circumstances of a claimant’s case.
Many Insurance Companies Now Use Software to Evaluate Car Accident Claims
More recently, insurance companies have turned to use of computer-based claims evaluation software in an effort to standardize their claims. It has been said that one such program, Colossus, is being used in connection with nearly half of the auto accident claims in the United States. Although Colossus was first licensed and popularized by Allstate in the 1990’s, it is in use by several other insurance companies today. These include CNA, Encompass, Esurance, Farmers Insurance, Metlife, The Hartford, USAA, Great American Insurance Company, Zurich and Travelers. There are other similar products used by insurance companies (e.g., Claims Outcome Advisor and Claims IQ), but Colossus is by far the most widely used program.
Programs like Colossus use a hidden and secret formula to convert various data about the nature and severity of injuries into a cash number. The factors considered include whether a claimant’s attorney has a record of taking cases to court, or has a history of settling for the “best” offer they can get without filing suit. These programs also consider the jurisdiction in which the claim arises or suit is pending, and the diagnosis (ICD-9) codes used by healthcare providers to classify or categorize injuries. The system assigns a “severity value” to these codes and increases the claim value for each severity point a claimant “earns,” so to speak.
While the theory behind programs like Colossus is not bad, in short, by using these computer systems, the insurance companies are trying to decrease the value of claims. This is because as while the systems do (usually) consider the severity of a claimant’s injury in coming up with a value, they ignore the “X-factors” that a judge or jury will consider such as stress, individual pain threshold, inconvenience of injury, loss of love and affection, and loss of enjoyment of life. A skilled lawyer with years of experience handling similar matters will be needed to advise a claimant regarding the possible value of these X-factors in order to ensure a claimant is receiving just compensation.
After a value for your injury claim is arrived at, the adjuster will then add any amounts for medical bills, property damage, car rental, and income (both past and future) lost as a result of injuries, etc. In many cases, these “out of pocket” expenses are uncontroversial and often paid by insurance companies without too much conflict – as long as it can be proven that the other party was solely liable for the accident. If the adjuster believes the claimant was also at fault in the accident, the issues become more complex.
Importance of Consulting an Auto Accident Injury Attorney
However, pain and suffering, emotional distress, loss of companionship, and any other general damages often involve more negotiation, and sometimes litigation in a court of law.
Therefore, regardless of the severity of one’s injuries, an automobile accident victim should always consult with an experienced personal injury attorney before accepting a settlement offer from an insurance company, or going before a judge or jury in an accident case. Representing oneself against an insurance company that will try to limit the amount of a claim as much as possible is simply not a smart option.
This is especially true if the person who caused the accident has a policy limit cap. For example, say you are injured in an auto accident and the other party was at fault. You file a verifiable claim for $30,000, only to discover that the at-fault party has a policy limit of $15,000. Regardless of your expenses, that is all that his or her insurance company will pay you. If you still want compensation for the additional $15,000, you will have to sue the other driver, individually. And that will require the services of a good lawyer.
The Insurance Company May Offer to Pay You Less
And even if your claim is not capped by a policy limit, an insurance company may offer to pay you less you than you have requested, or even nothing at all, as it tries to prove any of the following:
- Their policyholder was not negligent and you caused the car accident
- You were a joint cause of the car accident
- There wasn’t as much damage done to your car as you claimed
- You were not really hurt in the accident and your injuries are the result of something else, such as a prior accident or pre-existing medical issue
- You received too much or unnecessary medical care
- You paid too much for your medical care; the charges were not “reasonable”
- You haven’t proven that you had to miss work, or that you had to miss as much work as you did
Maximizing Your Car Accident Claim
In order to maximize your potential claim amount, it is important to make sure you do the following:
- Keep careful records of all of your special damage costs and expenses. This includes your auto repair bills and especially all past, present and future medical bills.
- Keep an exact record of all your medical diagnoses and treatments.
- Realistically calculate your present and future loss of income, and what you believe you deserve for general damages: pain and suffering, emotional distress, loss of companionship, etc.
- Find out if there were any aggravating conditions in the accident, such as drunk driving or driving under the influence of drugs on the part of the at-fault party.
- Keep in mind that you only receive one settlement or award from the insurance company. Submitting and settling your claim before all you medical treatment has been completed waives your right to any future compensation. After you have agreed to a settlement, you can’t go to the insurance company later and request more money.
In short, if your accident was the fault of someone other than you, your vehicle damage was noticeable, your injuries were promptly treated by a healthcare provider, the accident occurred less than one year ago, you had liability insurance at the time of the wreck, and adequate insurance coverage exists (either the other driver’s insurance or your UIM), you probably have a good car accident claim. Please feel free to contact us today at (504) 264-5587 to discuss how we can help you receive and keep more of the compensation you deserve.