If you have been injured in a car accident and are wondering how to settle your car accident claim without a lawyer, look no further because this comprehensive guide was written just for you.
Here are a few of the things that this guide will teach you about your auto accident claim:
- Whether or not you need a personal injury or car accident lawyer to help with your claim
- How to properly document the scene of the accident to protect your claim
- How to get your insurance company to pay your medical bills related to the accident
- Tricks and tactics that the insurance adjuster will use to scare you into a low-ball settlement
- How to know whether or not you REALLY can handle your case on your own
- Documentation that you should be prepared to send to the insurance adjuster
- What is the true “value” of your case?
- What is the best way to negotiate with the insurance adjuster
- What happens after you agree to a settlement?
In addition, at the bottom of this post we will be including links to various sample letters and documents that may be helpful for your case.
It’s important to start with the basics before we jump into the nuts and bolts of what you need to do to settle your case without calling a lawyer.
And that’s to figure out whether your case is the type of case that can even be settled (or should be settled) without working with a car accident lawyer.
Stop Here… You Should Call a Lawyer Immediately if…
Let’s start with the types of cases that absolutely, positively need the help of a car accident lawyer. And this part is pretty simple.
If the accident caused a fatality, then you need to call a lawyer.
If the accident caused a serious bodily injury or permanent deformity (i.e. multiple broken bones, head wounds, amputation, etc.), then you need to call a lawyer.
If the accident caused the injured person to go into a coma or otherwise miss more than a week or so of work, then you need to call a lawyer.
There’s no hard and fast rule here – but if the injuries were serious enough, and you aren’t sure what to do, or if you are too traumatized by the entire event to talk to anyone, then you should call an accident lawyer.
What about the rest of the cases?
What Type of Case Can Be Settled Without a Lawyer?
Here is a sampling of cases that most likely can be settled without hiring a lawyer:
- There is minimal or no property damage. Maybe a small ding or scrape to your vehicle.
- Your injuries were nothing more serious than minor bumps or bruises.
- Your only treatment was with a chiropractor, and you didn’t treat for longer than 3-4 months before your life returned to normal.
- You did not seek emergency medical care immediately after the accident… because you didn’t need it.
- You have stopped treating with your doctor and are 100% positive you will never need any additional treatment for your injuries.
- You lost less than a week of work.
Every single day in North Carolina people are involved in minor “fender benders” that require little more than a day of rest and some Tylenol to return to normal. These are not the types of cases that require the help of a lawyer.
However, if the accident caused a broken bone (or bones), permanent scarring, or anything more severe than that, then you very likely could benefit from talking to a personal injury lawyer.
And here’s the biggest benefit of all – coming in to see us won’t cost you a dime, and if you have already received an offer from the insurance company but have yet to accept it, then if we take your case we will only charge a fee on the amount we recover over and above your initial offer. Put another way, it costs you absolutely nothing to talk to a car accident lawyer from our office, regardless of whether you have already received a settlement offer from the insurance agent.
A Word About Timing
One thing you absolutely, positively must be aware of if you decide to handle your own case is the importance of timing. The legal terminology for this is the statute of limitations.
In North Carolina, you have 3 years to file a lawsuit for damages from the day that the accident took place. There are some exceptions to this rule in the case of minor children or if there was a death as a result of the accident.
But in the vast majority of cases in North Carolina, you have three years to settle your case.[alert type=”danger” dismiss=”no”]NOTE: This is the law in the State of North Carolina. If you live in another state or country, the law could be different from the law here in North Carolina and you may have more or less time to file a lawsuit. If you were in an accident in another state but LIVE in North Carolina, then the law of the state where you were in the accident would apply.[/alert]
When I refer to filing a lawsuit, I mean that you must have sued the proper party in the proper court. If you sue the wrong person in the wrong court before the three years is up, but that lawsuit gets dismissed, then you are screwed and have lost your opportunity to seek redress in the courts.
Here’s another caveat, if you were injured by a State or Federal agency, (i.e. hit by a government vehicle such as a mail truck or school bus), then the time period to file a lawsuit may also be different, and in some cases can be as little at 2 years and there may be a requirement to give notice to the government of the claim before you file suit.
If you were in an accident that involved a government vehicle, we highly recommend that you contact an attorney for assistance.
Don’t Wait To Call an Attorney!
If you do decide that you need to hire a lawyer, do yourself a favor and don’t wait until the last-minute. At our office, if there is less than 4-6 months to go before the statute of limitations runs out, we probably won’t take your case. That’s because it may take us several weeks or months to do a thorough investigation of your case and determine whether or not it is a case we will accept.
This is likely true of any good attorney that you would want to hire. So do your investigation early and don’t wait until the last-minute to call an attorney because you may find that nobody will accept your case.
Initial Steps to Take if Your Were in an Accident
If you have ever been in an accident, you know that the scene of the collision can be chaotic. Regardless of how serious the accident is or how seriously you were hurt, it is important for you to keep a level head about things. In times of crisis it is easy to say and do the first thing that comes to your mind. But acting in that way won’t help you or your case should you need to go to court as a result of this one event. But if you can stay calm and collected and follow the steps listed in this checklist, one-by-one, then you give yourself the best opportunity to reach a settlement that can help you put your life back in order.
1. Stay Calm and Breathe. If you have been in an accident, the first thing you need to do is stay calm. This is easier said than done. Try to breathe and take initial inventory of how you and everyone else in your car is doing. If you are injured, stay put and try not to move. You may have injuries to your back or head that you aren’t initially aware of. After you have taken a minute or two to collect yourself and determine that you and the other occupants of your vehicle are safe, it is ok to move on to the next step, calling the police.
2. Call the Police. Before you talk to anyone and before you exit your vehicle it is important to call 9-1-1 and let them know you have been in an accident. Chances are, someone else has already called in the accident for you unless you are in a rural area where there is little vehicle or pedestrian traffic.
3. Call a Friend or Relative. If your accident was serious, chances are you won’t be able to drive your vehicle home. (And if you were injured, you may not be able to drive anyway.) You are also likely to be stressed, pumped full of adrenaline, and not capable of thinking straight – all of which are completely normal after an automobile crash. It’s always helpful to have a friend or loved one to help you during this traumatic time, collect information, take photos, get you to the hospital, etc.
4. Obtain detailed information about the crash. If you are safely able to do so, you should start to gather information about everyone involved in the accident. You will need their names and contact information (phone number, address, email), license plate number, driver’s license number, make and model of the car, and insurance information. Ask the other driver if they own the car, and if they don’t ask them for the name and contact information of the registered owner. Don’t forget to get the names and contact information of any occupants of the other vehicles that were involved in the crash. If you see anyone that witnessed the accident, flag them down to ask for help and get their contact information as well. Make note of the address or intersection where the crash occurred. Is this a lot? Yes, but it is absolutely crucial for your claim.
5. Do not discuss the collision with anyone other than the police. You are going to feel an enormous pull to talk to the other driver and ask them questions, etc. Don’t do it. If they want to talk to you, feel free to let them, but don’t respond unless they start blaming you for the accident, at which point you should stop talking to them (but be aware that they are going to tell the police the same thing). If you call your insurance company to advise them of the accident, don’t get into what happened and who was at fault. Just tell them the basic facts of the accident, and that you have property damage to your car. If they ask you if you are ok, tell them you aren’t sure yet. You may feel pressure to say “I’m ok” or “I’m not hurt” – but you don’t know this for sure, so you shouldn’t tell your adjuster that. You may have injuries that will not manifest themselves until several hours or days later after the adrenaline and stress of the accident has worn off.
6. Take photographs or have a friend take photographs. Have you ever heard the phrase “a picture is worth 1,000 words”? No where is this more true than in an accident case. We are fortunate to live in a world where everyone has a smart phone with a camera. (If you don’t, get a disposable camera to put in your glove box). Take pictures of everything from your vehicle (outside and inside), to the other cars, to the people at the scene, to your injuries, etc. If you can take a video of the scene, then take several videos showing what is happening. You should photograph your car from various angles, as well as the street signs and any skid marks on the road. There is no limit to the number of photographs you can take, so we recommend you take a lot. If you are too injured to do this, have the person you called in step #3 take care of this for you.
7. Report the crash to the other drivers liability carrier. Assuming you have received the other driver’s insurance and registration card, you will want to call their insurance company to report the accident. Don’t rely on the goodwill of the other driver to do this. Again, don’t talk to the adjuster except to give them notice about the accident so that they can open up a file and begin to do their own investigation as to what happened.
8. Get yourself examined by a medical provider. When you called the police, they may have asked you if you needed medical assistance or called an ambulance on their own initiative. You should get checked out by the paramedic and follow-up with the emergency room or your own doctor immediately. The EMT will take you to the hospital if they feel it is necessary. If you have a friend or family member at the scene that can drive you to the closest hospital emergency room, then you should have them do so before you go home. The excitement, stress and adrenaline of an accident can mask your pain, so you may not initially feel that you are hurt. That’s ok – you should get checked out anyway. If you don’t go to the hospital, it is easier for the defense attorney to argue to a jury that you must not have been hurt, or else you would have sought out this treatment. Assuming you have Med Pay coverage on your insurance policy, your auto insurance should pay these bills, even if you don’t have your own health insurance.
9. Call your own insurance company. After you have left the scene, while you are driving to the hospital, either you or someone you trust should call your insurance company to notify them of the accident. Again, they will ask you if you are “ok”. Don’t respond to this question. Just tell them that you are still trying to figure that out. Don’t joke with them or make light of the situation. Just give them the information they need, including the other driver’s name, and their contact and insurance information, and get off the phone. You can tell them that you are headed to the hospital and don’t feel like talking. The are likely to give you a claim number that you can use at the hospital and to obtain a rental car (if you have elected this coverage, which I highly recommend). They may also send out a tow truck and tell you where they want your car taken for repairs.
10. Provide your information to the other driver. Before you leave the scene, make sure you give your name, contact information and insurance information to the other driver. However, don’t talk to them about the facts of the case, including how the accident occurred, whose fault it was, etc. You must be truthful when answering law enforcement questions, but you are under no obligation to share this information with the other party or even talk to them, except to exchange contact and insurance information.
11. Secure your vehicle. Chances are that you will need to leave your vehicle or have it towed. Make sure that you have removed all valuables and any personal belongings (purse, work bag, garage door opener, etc.) that you may need. Lock the glove box and secure the car. It may be several weeks before you will have access to your car again, and you will have no control over what happens to the inside of the vehicle. Make sure that the car is moved off to the side of the road, and away from the flow of traffic. The police will help with this if you are unable to. You should decide whether you need to go to the emergency room immediately, or wait for the tow truck to arrive. Regardless of what you do, don’t leave without first talking to the police office and keeping them advised as to your plans.
Going through a car accident can be an extremely stressful, especially if there were serious injuries. But remember to try to stay calm and follow the steps in this checklist and you will be ok.
How to Pay Your Medical Bills
In North Carolina, auto insurance carriers are required to offer a type of insurance coverage called Med Pay, short for “Medical Payments”. You may have this coverage in your policy and don’t even know it.
Basically, Med Pay will pay for all of your medical bills if you have been involved in a car accident and the car was insured by someone who has Med Pay in their policy. This coverage extends to anyone who was riding in the car at the time of the accident. If the car you were riding in was not insured for Med Pay, but you do have Med Pay in your auto insurance policy, then you are still covered by your own policy.
The most common Med Pay limits in North Carolina are one to two thousand dollars. Personally, I keep the maximum amount of $100,000 in Med Pay coverage on my policy. It only costs about $20 each for my Wife and me to have this coverage every six months. If that isn’t the cheapest non-deductible health insurance money can buy, I don’t know what is!
One of the great things about Med Pay is that it is not subject to subrogation. What that means is that, unlike your default health insurance which may be permitted to ask for reimbursement from your settlement for the bills they paid on your behalf, Med Pay is statutorily prohibited from asking for any type of reimbursement.
Another great thing about Med Pay is that if you are a passenger in a car driven by someone who does NOT have Med Pay on their policy, then you can still collect your Med Pay benefits from your own auto insurance policy. Pretty cool, huh?
The final note on Med Pay, for now, is that collecting these benefits is typically fairly easy. All you need to do is notify your insurance company that you were in an accident, and provide any documentation they require, such as the police report or any medical bills. That’s it. You likely won’t even need a lawyer to help you with this part of your claim.
How to Document Your Accident
Properly documenting your accident, even if it has been several days or weeks since it occurred, is vital to protecting your claim. We recommend that you start a physical or virtual file that contains all of the following information, especially if you intend to represent yourself in your accident claim.
- A Word document that details everything you can remember about the accident. At a minimum, this document should include the following information:
- Date/time of the incident
- Location of the accident
- Name and contact information for the at-fault driver
- Name and policy number of the insurance company for the at-fault driver
- A short description of what happened
- Police Report Number
- A list of witnesses, including their phone numbers, addresses, and email
- Whether or not you were transported by ambulance
- A list of all medical providers that treated you
- A list of your injuries
- If you took time off of work, a log of the days that you took off (make sure to include information for any days missed due to doctor’s appointments) – You may want to create a separate spreadsheet for this
- Information on where your car was towed and the repair estimate
- Did you have to pay a deductible to have your car repaired or any towing/car rental fees? List these out.
- Include print outs of any photos that were taken of the scene
- Draw out a diagram of the intersection and show where the cars were located before, during and after the accident occurred
- Order a copy of the police report and place it in your file
- If there were any temporary obstructions (i.e. tree limbs, construction cones, vehicles parked out-of-place, etc. that contributed to the accident, be sure to includes notes about where these obstructions were located and how they may have contributed to the accident. Pictures of these obstructions are even better.)
- Records and bills from any doctor’s appointments you have had.
- A payment log for any out-of-pocket expenses you have incurred as a result of the accident, including bills and receipts. You should keep a record of the amount you were billed by health care providers and the amount that was paid by either you or an insurance company on your behalf.
- Complete “a day in the life”, which is a one page document that explains how your life is different after your accident as opposed to the way you lived your life before the accident.
The reason it is so important to document your accident in this way is that every single detail matters. And the more detailed you are about your accident, the more likely you are to recover a better settlement for your and your family.
In addition, if at some point you decide to hire a lawyer, having this information ready will help the law firm push your case forward that much faster.
How to Talk to the Insurance Adjuster
At some point in the days following the accident, you are likely to be contacted (either by phone or mail) by the insurance adjuster for the party that caused the accident. They will typically ask you for several items:
1. A signed release so that they may obtain your medical records
2. A signed release asking for your work records
3. A recorded statement
Let’s go through these items one at a time to discuss whether you should voluntarily provide this information.
But before we do, I wanted to impress upon you the importance of being nice to the adjuster. What do I mean by this?
The insurance adjuster has hundreds of files that they are working on at any given time. They deal with a lot of mean and pushy lawyers, other accident victims that aren’t so nice, and supervisors who are on their case to settle cases quickly for as little as possible.
As a result, they may take out some of their frustrations on you and your file. Don’t take this personally. Instead, keep your head above water and treat them with the kindness and respect that every human being deserves. (If you haven’t read the book “How to Win Friends and Influence People” by Dale Carnegie, now would be a good time!)
When dealing with an adjuster, they will react favorably to people they like. Instinctively, whether we want to demonize these people and the company they work for or not, and insurance adjuster is a person just like all of us, and if given the opportunity to help you out (presumably because they like you), they will.
[alert type=”danger” dismiss=”no”]Bottom line: Getting mean and cranky and yelling a the adjuster if you don’t initially hear what you want from them will never help you with your case or to recover an appropriate settlement.[/alert]
Should You Provide a Medical Release?
In our experience, it is never smart to sign the release provided by the insurance company. More often than not, the release they ask you to sign will contain very broad language and allow them access to any and all of your medical records. Not only that, but you will have no way of screening the records before they are sent to the insurance company.
A better practice would be for you to request the records on your own and send them into the insurance company after you have had a chance to review them. You will want to send the records of any hospital or medical service provider that you treated with as a result of the accident. In addition, you should probably also send in copies of any medical bills you have received that show the amounts that were charged by the insurance company as well as the amounts that have been paid.
We never recommend that anyone sign a release from an insurance company without having a lawyer review it first – even if you do plan to represent yourself on your claim.
Should You Provide a Work Release?
Not surprising, we are not in favor of you signing an authorization to allow the adjuster access to your work records. They will ask for everything your employer has in your file, which could include performance reports, write-ups and warnings for poor performance, managerial notes about you, etc.
The only information you need to send to the insurance adjuster is a log of the days you have missed work due to the accident. This log should include the dates missed, your rate of pay, and your job description and title.
Should You Provide a Recorded Statement?
Here is where things can get a little dicey. You should tell the adjuster (nicely, see above), that you wold be willing to provide a recorded statement if they will provide you with a recorded statement from the at-fault driver.
Probably ten times out of ten they adjuster will ask if you are joking and politely decline. Then they may tell you that without your statement, they cannot take any further action on your claim.
At this point, you are stuck – you can either give the statement and risk them using it against you in some way (insurance companies like to do that) or you can hire a lawyer. If you absolutely, positively, don’t want to hire a lawyer, then your only choice is to provide the statement.
Ask the adjuster if they have any questions that they will ask you related to the accident and have them email or mail those to you ahead of time so that you can adequately prepare. Then, we recommend that you write out your statement ahead of time and read it back to the adjuster over the phone while they are recording you.
One other thing – before you give the statement, ask if they will send you a copy of the transcript for you to review and correct after the recording is completed. Remember, if there is any way the insurance company can use the statement against you, they will.
How to Value Your Case
The question of how much a case is “worth” is a highly subjective exercise. Unfortunately, there just isn’t a “magic formula” that will tell you what your case is worth based on the amount of time you were out of work, the damages to your vehicle, and the extent of your injuries.
Many people falsely believe that their case is worth a multiple of the medical bills that were incurred to treat them. This simply isn’t the case. It would be great if it were this easy, but if you think about it, you likely wouldn’t want your case valued in this way.
There are many injuries that are not that expensive to treat, but which may a long-lasting effect on your life, such as the loss of a body part like a finger or eye, and other injuries which would be every expensive to treat, but from which you would fully recover. Think about the case where you were hospitalized for several days and then discharged. Within a month or two, your life is back to normal.
So how do you put a value on a personal injury or auto accident case? In a word… experience.
The question is, if a jury was handed this case, how much would they award in damages? Not surprisingly, the insurance companies have huge databases of information and past case results that will tell them what damages have been awarded in prior cases that are just like or very similar to yours.
When a jury gets your case, they also get a lot of evidence. And after looking through that evidence, they will make a decision about who is at fault for the case and what damages are appropriate. They are not given a formula or spreadsheet or computer program that they can use to calculate a damage value – they will sit and discuss the merits of the case and make a decision.
That decision will take into account several factors:
- What witnesses were the most credible?
- Did they believe your client or the other person?
- Was your client sympathetic?
- Did they like your lawyer (or you, if you aren’t represented)?
- Was there sufficient evidence for them to make a decision on the case?
- Did they buy the story you are selling to them?
If the answer to most of these questions is yes, then you will win your case and the jury will award you damages. If, on the other hand, the jury doesn’t like you or doesn’t think you are telling the truth, or possibly even thinks you are wasting everyone’s time by coming to court on this case, then you will lose or recover a very modest amount.
There are resources available to determine what juries have previously awarded in your jurisdiction. The easiest (but most time-consuming) way to do this is to go down to your local courthouse and talk to the clerks. Let them know you would like to look at some old car accident files that went to verdict to see what the juries awarded.
After looking through enough of these files, you will start to see general trends. Typically, juries don’t like drunk people. So victims that were hit by drunk drivers tend to receive larger verdicts than people who were in the same accident with a sober person. The same could also be said of texting while driving. If the person who hit you was looking at the phone instead of the road, they are more likely to get dinged for a large damage verdict than someone who was just lost in thought and took their eyes off the road for a second to change the radio station.
A final way to figure out what your case is worth is to hire a lawyer. Many lawyers probably won’t give you this information over the phone without meeting with you in person and retaining you as a client. And even then, they would want to review your medical records, interview you in person, get more information on the person who hit you, talk to witnesses, and develop an in-depth report of what your case would look like if presented to a jury.
Based on all of this information, your lawyer should provide you with a written analysis that gives a range of possible settlement values. If you talk to a lawyer that is unwilling to give you such a detailed settlement analysis, this should raise red flags for you that they may just be interested in settling your case quickly, with no intention of ever going to trial.
As I write that, I realize that many of you may never want your case to go to trial – and that is ok. But your lawyer must treat your case as if it is going to go to trial and proceed to verdict. Every little detail of your case matters. You never know what testimony or piece of evidence a jury will use to come to their final decision about your case.
So facts matter.
These are the things that ultimately will determine the value of your case, whether that valuation is agreed to in pre-suit negotiations, at mediation, or after a jury makes its decision.
How to Negotiate Your Case
There are two big mistakes that many consumers make when trying to settle their auto accident claim on their own:
- They agree to a quick settlement, far too early in the process.
- They are too emotionally involved with the case to be reasonable and realistic about the settlement value of their case.
As a result of these two mistakes, many unrepresented claimants will leave a lot of money on the table during the course of their negotiations with the insurance company.
There is a reason that insurance companies love dealing with unrepresented individuals and will do everything they can to keep you from hiring a lawyer. It’s because they can smell blood in the water. They know they are about to make a big profit for their employer.
Let’s look at a couple different scenarios to illustrate how this could play out.
Example #1 – The Quick Settle
In the first example, the victim (let’s call him “Bob”) was hit by a drunk driver. Fortunately, Bob sustained nothing more than some minor injuries to his arm and back, and he thinks he will be back to normal soon. Bob hasn’t been to see a doctor yet (he doesn’t have health insurance and is afraid of the bills), and has lots of consumer debt of his own. The insurance company offers Bob $25,000 a week after the accident. This is more money than our hero will see in a year from his employment.
Bob still has some back and arm pain from the accident, but gladly accepts the payment, signs the forms and moves on with his life. At least now he can go see a doctor.
What Bob didn’t know when he accepted that check is that he actually suffered a small fractured in his back during the crash, which was causing his pain. In the weeks and months that follow, his pain gets worse, and after finally going to see the doctor, Bob realizes that he needs an expensive surgery to fix his back.
Had Bob retained a lawyer to help walk him through his claim, he would never have made the mistake of settling for the insurance company’s low-ball offer.
Example #2 – The Unrealistic Dreamer
In this next example, we meet Tina. Tina was hit by a high school student who was driving Mom and Dad’s BMW to school and texting while driving. Although there was a great deal of damage to Tina’s car, she drove a Japanese car with some amazing safety features that allowed Tina to walk away from the accident relatively unscathed.
Tina decided very early on in her case that she wouldn’t accept anything less than $100,000 to settle her claim. She saw a high school student with rich parents who made a mistake. Unfortunately for Tina, she was unable to see that in reality, her case was not worth very much. That same $25,000 that Bob received would have been a great settlement for Tina.
And in fact, Tina got lucky. The insurance company was scared by the fact that a texting high schooler caused this accident. They offered Tina $25,000 to settle this case within months of the accident.
But Tina persisted. Without providing any of the records that the insurance company requested of her to support her demand, Tina would not back down from her request that the insurance company pay her $100,000 in restitution. You can guess what happened next.
The insurance company told Tina to pound sand and did nothing. They even withdrew their original offer of $25,000. Not realizing that there was a three-year statute of limitations on her case, Tina started calling around to auto accident lawyers to see if anyone would take her case two years and 9 months after the claim. Not surprisingly, nobody would because it was too close to the three-year deadline to file a lawsuit.
Tina was left out in the cold, and although she was able to get her car repaired, Tina never did recover any additional money from that high schooler’s insurance company.
The proper way to negotiate your case is to finish treatment before you even begin to engage with the insurance company for the person who hit you. You need to know how serious your personal injuries are, and what your long-term prognosis is. You also want to know how much your total medical bills were as a result of your accident, and how much time you were forced to take off of work.
Only after you know this information can you start to decide what your case may be worth.
So you are finished treating… what next?
If you have been paying attention so far, then you know how important it is to keep accurate records of everything that has happened in your case thus far. That means that you will need copies of all of your medical records, bills, and documentation of how much time you were out of work.
At this point you will need to draft what lawyers call a “demand letter”. This is a letter that outlines your formal request for financial compensation. If your property damage was modest, and your injuries minor, this may be a fairly short letter. But if you had significant injuries, or missed a great deal of time from work, then you will have a much more in-depth demand letter.
When we are drafting demand letters for our clients, they are typically broken up into the following sections:
- Introduction and description of the accident
- Background information on our client
- Medical Diagnosis as a result of the accident
- Medical History (including a summary of all major appointments) and Discussion of Injuries
- Summary of all Treatments and Testing
- Chart Showing All Medical Expenses
- Discussion of Lost Wages
- Personal Impact Statement
- Demand for Damages
If this seems like a lot of information, it is. We believe in overwhelming the insurance company with so much information that they have no choice but to accept our demand.
(Bear in mind, just because you send a lot of information to the insurance company is no guarantee that they will see things your way. They are still likely to reject your initial demand outright, low-ball you, or otherwise force you to file a lawsuit to collect the compensation you are lawfully owed).
When drafting your initial demand letter, you will want to give the insurance company enough time to respond, typically 30 days. If they don’t respond, they respond with a low offer of their own, or outright reject your offer, then you will need to be prepared to file a lawsuit.
For purposes of this article, let’s assume that you are able to negotiate a settlement that works for you.
So now you have a settlement agreed to in principal. What’s next?
Before we get there, we need to discuss what would happen if the person that hit you either did not have any insurance at all, or if they did not have adequate insurance to pay your claim.
What if the Other Driver Had No Insurance?
Even though every North Carolina driver is required by law to maintain liability insurance on their vehicle, that doesn’t necessarily mean that they do. Believe it or not, not everybody follows the law.
If you are in an accident that was caused by a driver without insurance, you would need to make a claim against your own insurance policy. In this case, your insurance carrier would act as if they represented the person who hit you. This is called uninsured motorist coverage and every insurance policy includes this coverage.
In addition to uninsured motorist coverage, every policy also includes underinsured motorist coverage. This is exactly what it sounds like – coverage that will pay out if the at-fault driver had insurance, but not enough to cover your injuries.
To make a claim under your underinsured motorist coverage, you must allow your insurance carrier to approve your settlement with the insurance policy for the at-fault driver. If you don’t, they may deny your claim.
What Happens After a Settlement is Reached?
Once you have agreed to a settlement with the at-fault driver’s insurance company, they will send you what is called a “release” agreement. This is a legal document that will ask you to waive “any and all claims” against the insurance company.
Be careful, once you sign this document you are locked in. There is no going back. If you have questions about whether or not you should agree to your settlement, now is the time to consult with a lawyer.
Although we can’t speak with other lawyers, if you meet with us to review your settlement and we determine that you are entitled to more than you have agreed to on your own, we may agree to accept your case and would only charge a fee on the amount we recover that is over and above your initial settlement agreement.
So for example, if you reach an agreement to settle your case for $10,000 and after reviewing your case, we believe you could do better if you let us take over your file, then you can retain us to represent you. If we obtain a $25,000 settlement for you, then we would only charge you a fee on the $15,000 that is over and above the amount you already agree to.
We don’t believe in charging a fee on a recovery that you could have achieved on your own.
I Got My Check – Anything Else I Need to Be Concerned About?
So you signed your settlement paperwork, and you received you check.
Is that the end of the story?
Of course not – and here are some pitfalls that the insurance adjuster generally won’t tell you about.
Just because you received your settlement check doesn’t mean your case is over. There are a number of other parties that may want (and be legally entitled to) a piece of your settlement check.
Generally speaking, anyone that paid your medical expenses on your behalf may be entitled to a piece of your settlement check. Here is a quick list of the various entities that could receive a portion of your check:
1. Medicare or Medicaid – if they paid any of your medical bills that were related to the accident they are entitled to reimbursement from your settlement.
2. If you are covered by an ERISA health care plan that is self-funded, it may be entitled to reimbursement from your recovery.
3. If your bills were paid by a military or any other government health care plan, it may be entitled to recovery.
4. Any medical bills that were not paid previously may claim a lien on your settlement proceeds.
Here’s what you need to know about paying back your health care plan for bills they paid on your behalf.
First, this is an extremely complex area of the law. Even the most experienced of lawyers agonize over the rules related to the repayment of these expenses, and do a great deal of research before paying these expenses out of their client’s settlement checks.
Second, if you don’t payback these bills you could find yourself on the receiving end of a Federal Lawsuit requesting an order that you pay back these expenses.
It is possible that you will receive a letter from your health insurance company notifying you that they will be seeking reimbursement. If you receive such a letter you should examine it closely to make sure that the bills they are seeking reimbursement for are accurate and indeed are for treatment that was related to your accident.
If you fail to payback your own health insurance company, then could deny payment for future claims or sue you in Federal Court. If you fail to pay back Medicare, the Federal Government could sue you. If you fail to pay back Medicaid, the State of North Carolina could sue you.
As stated before, these are extremely complicated issues and even experienced lawyers have to tread carefully when dealing with subrogation issues. The insurance adjuster that you just settled your case with will not advise you that you may need to repay these bills. And just because you receive a letter from your health insurance company demanding repayment does not mean that they are legally entitled to that payment.
Consulting with a lawyer about these issues is highly recommended.
What If I Can’t Settle My Case?
If you have tried to get your case settled outside of the court system and without a lawyer, but you can’t get the insurance company to either make you an offer, or make you an offer that you are willing to accept, then your options are limited at this point.
Although we don’t typically recommend filing a lawsuit without a lawyer, it is possible and people do it everyday.
The first thing you need to do is determine in which court you will file your lawsuit. In terms of the proper court, you must decide in which division you will file your lawsuit, and in which countyyou will file your lawsuit.
In North Carolina, each county has three different judicial divisions in which you could file your lawsuit.
If you are not seeking more than $5,000 in damages, then you may file your claim in small claims court. Small claims in North Carolina has a relaxed set of procedures, and cases are heard by a magistrate.
In you are seeking up to $10,000 in damages, you would file your case in District Court. District Court cases can be heard by a judge or a jury, and may be sent to mediation or arbitration before they are tried.
If you are seeking over $10,000 in damages, which is the majority of auto accident cases, then you would file your lawsuit in Superior Court. Superior Court cases are heard by a judge or a jury.
Once you decide in which division you will file your case, the next decision is where to file the lawsuit. In other words, you must decide which North Carolina County has proper venue. This can be an important decision as you may have the opportunity to file your case in more than one county, and this choice can have a profound impact on your case in terms of the jury pool that you will draw on from that county. Entire cases can be won or lost based on the choice of the venue alone.
If you are faced with the prospect of filing a lawsuit in Superior Court, we highly recommend that you consult with a lawyer first. The defendant will have a lawyer that is hired by the insurance company, and they will have the advantage of not only knowing the law, but also knowing their way around the courtroom. They will send you discovery that you must respond to. They will bombard you with motions. They will attempt to dismiss your case at the outset with a “motion to dismiss” as well as after discovery has been completed by filing a “motion for summary judgment”. Unless you know what you are doing, you might lose your case before you ever get to trial.
As a final parting thought here – it is vitally important that you sue the correct defendant and serve the lawsuit on them properly. If you sue the wrong person, or fail to properly serve them, then your case could get dismissed or the statute of limitations could run before you even get started. If you are suing a corporation, you must check to make sure you are suing the proper person. A quick search of the Secretary of State’s website could be helpful here – but hiring a lawyer would be the smart move.
Things to Do to Maximize the Value of Your Case
One of the benefits of having a lawyer represent you is that we will act as a sort of “coach”, keeping you on track and making sure that you are doing the things you need to do to maximize the value of your case.
Many times, the value of a case can vary widely based on what happens long after you were in the accident. And the tips here don’t just help you to maximize the financial settlement you may receive, but they will also help you recover your health and return your body, as close as possible, to where you were physically before the accident as fast as possible.
Here are five things you can do to maximize the value of your claim:
1. Follow the recommendations of your doctor. It cannot be overstated how important it is that you follow the recommendations of your doctor. If the doctor tells you to go to physical therapy, you go to PT. If the doctor tells you to get your MRI, you get it scheduled for the next day if possible. If you are to get some sort of treatment, massage, injection, etc. you need to get it done as quickly as possible. If you have a valid reason for NOT following the doctor’s recommendations, such as you would like to follow a more conservative treatment plan before getting surgery, that is ok. You just need to make sure you have a conversation with your doctor about this so that it can be properly documented in your medical records. The last thing you want is for a defense attorney to be cross-examining you about all the things your doctor recommended that you never did, or that you delayed doing.
2. Keep a journal of your progress. The next thing you should do is keep a journal of your progress. This can be as simple as purchasing a spiral notebook and keeping track of your appointments each day, how you feel when you wake up and go to bed, how well a certain treatment worked, your pain level on a scale of 1-10, etc. This doesn’t have to be fancy, but it will be helpful to show your progress and create a timeline of when your treatment has started to plateau.
3. Keep a log of the time you missed from work. You will also want to keep track of the days you missed from work. This isn’t quite as important as the first two items, as we will be able to get this information from your employer, but it is still helpful to document what appointments you went to that caused you to miss work, how far you had to drive to get there, what you did at that appointment, and what your next follow-up appointment is.
4. Schedule tests and follow-up appointments as quickly as possible. This is where a lawyer can really come in handy. We will stay on top of you to make sure you are scheduling your follow-up appointments as quickly as possible. When you are treating, it is important that you get your treatments done as quickly as possible. Moving your treatment along will move your case along. And with a three-year statute of limitations, you don’t have time to dilly-dally. I realize that 3 years seems like a long time, but in the overall scheme of things, it will fly by faster than you can imagine. For that reason we recommend that you schedule your tests and follow-up appointments as quickly as possible. And along these same lines, it is important that you don’t miss your appointments if at all possible.
5. Don’t over-exert yourself at home. Stories of personal injury claimants over-exerting themselves at home are wide-spread. I’m sure you could do a quick search on YouTube and find some videos shot by private investigators of accident victims out mowing the lawn, working on cars, repairing the roof, etc. You name it and it has been done. If you are claiming to have serious personal injuries, but you are out doing physical labor at home, not only are you delaying and hurting your medical progress with your injury, but you are also potentially committing insurance fraud. If you are a client of ours and we find out that you are lying about your injuries and you get caught, we will fire you immediately.
One of the most frequently asked questions from injured folks that call our firm is “How long will it take to resolve my case?”
The answer, quite obviously, is that it depends. Here are some of the factors that will have an impact on how long it will take to resolve your personal injury claim:
- The severity of your injuries
- How long it takes you to reach maximum medical improvement, or MMI
- The insurance company and adjuster who is assigned to your file
- The circumstances surrounding your accident
- Whether or not there was any gross negligence on the part of the person who caused the accident
- Whether or not you contributed in any way to the accident through your own negligence (remember, if you were even 1% at fault, you recover nothing in a court of law)
- The amount of insurance that the at-fault driver has
- The amount of UM/UIM coverage that you have on your auto policy
- Whether or not a lawsuit is necessary to recover in the case
- The biggest factor of all is going to be the nature and severity of your injuries. The more severe your injuries, the longer you will need to pursue medical treatment to get better. On average, we see clients treating between 6-9 months, sometimes closer to a year.
Another major factor is who the insurance adjuster is that is assigned to your file. If you draw an adjuster who believes that every plaintiff is out for a quick buck, then they may be less likely to offer you a reasonable settlement. But if you draw an adjuster who truly wants to help you out, then you are more likely to receive a quick settlement.
Generally speaking, smaller dollar cases will resolve faster than higher dollar cases. That’s because most insurance companies don’t want to pay out lots of money unless they are forced to by getting dragged into court. And if your case is the type that requires a lawsuit to recover what it is reasonably worth, then you should stop reading this and call our firm immediately. Although it is in theory possible that you could file and prosecute your own lawsuit in Superior Court, the likelihood that you would be successful is small.
So what’s the bottom-line? How long will your case take to resolve?
A good rule of thumb is that your case would take anywhere from 6 months to several years to resolve, longer if a lawsuit is necessary.
Way back in at the beginning of this article, I talked about the types of cases that are most suitable for someone to resolve without hiring a lawyer. To recap, you probably don’t need a lawyer if your case had little to no property damage to your vehicle, very minor injuries, and you didn’t miss more than a week of work.
On the flip side, if you had extensive damage to your car, if you suffered significant injuries (including broken bones, dislocated joints, head trauma, or back injuries) that required significant treatments with an orthopaedic surgeon or other medical specialist, injections, or even surgery, then you probably need to seek the help of a lawyer.
If you call our firm, you will be immediately transferred to someone who can review your situation and begin the process of taking the burden of your case off your shoulders.
When you hire a lawyer, you are hiring the peace of mind that you no longer have to worry about the legal aspects of your case – you only need to worry about getting better. As lawyers, our focus is to make sure that we fully investigate your case, order a copy of the police reports, employment records, and medical records and bills, place the insurance company for the at-fault driver on notice that you now have a lawyer, interview witnesses, visit the accident scene, and take any other actions that may be necessary to preserve evidence and put forth the best possible case for you in court.
Whenever we take on a case, we assume that case will end up in front of a jury at some point. So the more steps we can take early on to preserve and protect the evidence in your case, the better.
Every case has a story.
What is yours?
If you are able to handle your case without hiring a lawyer, we wish you the best of luck and are here to help you if you falter. But if you have decided, after reading this article, that you need a lawyer to help you after all, please give us a call at (919) 460-5422 or fill out the online contact form below.
If you have a question for us, you can submit it confidentially online by clicking here. You can also call The Hart Law Firm at (919) 460-5422. We are happy to speak to you and answered any detailed questions you may have.