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CAR, TRUCK & MOTORCYCLE QUESTIONS
What
should I do or not do if I'm injured in a car
accident?
Auto accidents can happen to anyone. You can
protect your legal rights by taking the right steps
after an accident occurs. The following list
summarizes some of the steps you should take if
involved in an auto accident. This advice assumes of
course that you are not hurt to the extent that you
need an ambulance. Obviously, if you are seriously
hurt, you should await the assistance of an
ambulance first and foremost. Moreover, if you are
involved in an accident that results in personal
injuries or serious property damage, consult an
experienced personal injury lawyer right away.
Basic
DO'S
- DO STOP
YOUR CAR. If your car is involved in an accident
and you don't stop, you may be subject to
criminal charges. Leave your car as close as
possible to the place of impact without blocking
traffic. To avoid additional collisions, raise
the hood of your car and put your hazard warning
lights on. If the accident occurs at night,
place flares or reflectors on the road.
- DO AID
THE INJURED. If someone is injured, give first
aid if you are qualified and call for an
ambulance. Remember to make note of the location
of the accident before you call for an
ambulance. Tell the ambulance dispatcher the
name and number of the street as well as the
direction in which the cars were traveling at
the time of the accident.
- DO CALL
THE POLICE. A police report of the accident will
aid your insurance claim and any liability
claims. Note the officer's name and badge
number, and ask the officer how to obtain a copy
of the accident report. If you do receive a
traffic ticket, it does not mean you are guilty
of a traffic offense or that you are responsible
for the accident. Pleading guilty though, could
very well hurt your claim for damages from the
other driver. Consult your lawyer and insurance
agent before pleading guilty to any traffic
offense.
- DO WRITE
DOWN THE DETAILS OF YOUR ACCIDENT. Make notes
about details like the time of day, weather
conditions, road conditions, streetlights, and
length of skid marks. Also make a diagram of the
accident noting the location of the vehicles,
cross walks, stop signs and traffic signals
- DO
EXCHANGE INFORMATION WITH THE OTHER DRIVER.
Exchange information with the driver of the
other car. You should get the following
information:
- Other
driver's name, address, phone number, driver's
license number, name of insurance company and
policy number.
-
Passenger's name, address and phone number.
-
Witnesses' name, address and phone number.
- Owner's
(if not the driver) name, address, phone number,
insurance company and policy number.
- DO TAKE
A LOT OF PICTURES of all the damage to your
vehicle before you have it repaired, as well as
any visible physical injuries.
- DO GET
MEDICAL ATTENTION RIGHT AWAY. Even if you feel
O.K., the longer you delay seeing a doctor, the
less documentation you have of your accident. It
is best to go straight to the emergency room. It
is likely that even if you don't hurt at the
scene, you will begin to "stiffen up" within an
hour or two after the accident.
- DO GIVE
THE DOCTOR A DETAILED HISTORY -tell the doctor
exactly how the impact to your vehicle occurred.
Tell the doctor about everything that's hurting
you, even if it doesn't hurt much. It may hurt
more later on.
- DO
NOTIFY YOUR INSURANCE AGENT. Call your insurance
agent as soon as possible after an accident. If
you delay, your insurance company may have
grounds to deny you coverage. Follow up the
phone call with a written notice that should
contain information about the date, time and
place of the accident, with names and addresses
of the other drivers, injured persons,
passengers, and witnesses. If you were at fault,
your liability insurance should pay for any
injuries or property damages. If the other
driver is at fault but does not have insurance,
your insurance may pay for damages to your car
(collision coverage), your medical expenses
(medical payment coverage) and even for your
pain and suffering (if you have uninsured
motorist coverage).
- DO CALL
YOUR LAWYER. Most lawyers offer a free
consultation so you have nothing to lose by
calling your lawyer first. Remember:
the insurance companies have thousands of lawyers
working to protect them so make sure you have an
attorney working to protect YOU! If you
don't have a lawyer, you may call us at
1-800-ZIFFLAW or E-mail us at
info@zifflaw.com
and we will be happy to speak with you right away. Your lawyer can best advise you
about your rights and responsibilities. Because
witnesses may forget the details of the
accident, the sooner you get the assistance of a
lawyer, the better. Your lawyer can counsel you
on how to respond to questions from insurance
adjusters and help you recover compensation for
your personal injuries and damages to your car.
WHAT NOT
TO DO IF YOU ARE IN AN ACCIDENT
- DO NOT
ADMIT RESPONSIBILITY FOR THE ACCIDENT EITHER WITH
THE POLICE AT THE SCENE OR THE OTHERS INVOLVED.
If there is litigation, things you say may be
used against you. Although you may think the
accident was your fault, you may find out later
that the other driver was actually to blame, or
you were both equally at fault. This is
not to say that you shouldn't be truthful with the
police about the FACTS of your accident-- you just
should not offer your OPINION that the accident
was your fault.
- DO NOT
SIGN ANY DOCUMENTS NOR AGREE TO PAY
ANY DAMAGES. You should leave the payment
of any damages to your insurance company.
That's why you pay insurance premiums and that's
why you have insurance coverage. Your
insurance company will determine what expenses are
appropriate to pay.
- DO NOT
EVER DOWNPLAY YOUR INJURIES OR SAY YOU'RE "O.K."
AT THE SCENE. Soft tissue and disc injuries often
take hours or days to begin to really
hurt. People are often very shaken up and
disoriented after an accident so very often they
don't realize they've been hurt until later when
they start to calm down from the initial
excitement of the crash. If you are asked if
you were injured, always say, " I am not sure
about my injuries-- I plan to see a doctor to look me
over." If you have any pain at all, and the
officer offers an ambulance, you should consider
letting him or her call one for you.
- NEVER
GIVE A STATEMENT TO THE OTHER DRIVER'S INSURANCE
COMPANY. OFFER ONLY THE VERY BASICS. The
insurance company is sure to be in contact with
you soon after the accident regarding the
property damage to your vehicle. That does not
give them the right to ask you detailed
questions about your injuries. It is best not to
speak to them at all regarding your injuries
until you seek the advice of an attorney who
concentrates on personal injury.
- DO NOT
TAKE MONEY FOR YOUR INJURIES OR SETTLE UNTIL YOU
HAVE FINISHED TREATMENT. Insurance companies may
try to offer you money for your injuries right
away. The full extent of your injuries may not
be apparent for weeks or months. Once you settle
for your injuries, you can't get any more money,
no matter what they say.
- DO NOT
HIRE A "FAMILY ATTORNEY" FOR AN INJURY CASE.
Many people have a "family attorney" who assists
the family with wills, real estate closings, or
domestic matters; however, this is usually not
the best attorney to handle your personal injury
case. It is best to seek an attorney who
concentrates exclusively on personal injury
cases. If you don't know an experienced
personal injury lawyer, you may call us at
1-800-ZIFFLAW or E-mail us at
info@zifflaw.com
and we will be happy to speak with you right away.
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What
is "no fault" insurance?
No-fault insurance in N.Y. means that the insurance
carrier for your vehicle, rather than the insurance
carrier for the other vehicle, pays your medical
bills or lost wages. This is true regardless of who
was at fault in causing the accident. However,
no-fault does not apply to property damage claims
which are usually paid for by the insurance carrier
for the vehicle that caused the collision or by your
carrier if you carried collision coverage.
Also, no-fault does NOT apply to motorcycles so
please refer to the motorcycle FAQ's to see how
motorcyclists are treated different.
What expenses does No-Fault insurance pay?
No-Fault Benefits include:
- Hospital
and Medical Expenses.
- Lost
wages equaling 80% up to $1000 per month for a
period not exceeding three years (Note: Some
policies provide more than the $1,000 per month
minimum required by N.Y. law).
- All N.Y.
NF policies are required to provide TOTAL
coverage of $50,000 for both medical costs and
lost wages.
No-Fault
Benefits are NOT payable when:
No-Fault
benefits are not available to anyone who was driving
while intoxicated or under the influence of drugs if
the NF carrier can prove that the accident was
caused by the their insured's intoxication or drug
use. NF Benefits are also not available if the person
intentionally caused his/her own injury, or if the
accident occurred while the person was committing a
felony.
Making a
Claim for No-Fault Benefits
To claim
No-Fault benefits, you must file a written
application with the appropriate insurance company
within 30 days of the accident. After the accident,
immediately request from your insurance company that
they send you the New York State No-Fault
Application. You will be given a claim number and
the name of an insurance company claim
representative to whom you or the medical provider
can send the bills. You may also contact this person
if you feel you're not receiving the appropriate
benefits.
What
Happens If the NF Carrier Fails to Pay the Bills?
If
you do not receive your benefits, there is an
arbitration procedure which can require the
insurance company to pay them. You should consult
with an attorney to make sure that your rights are
protected and that you receive the benefits you are
entitled to. An arbitrator's award can also include
payment of interest as well as attorney's fees.
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If I
have been injured in an accident can I recover
anything more than what no-fault pays?
In NY, if you have suffered what the law defines as
a "serious injury", you may bring a claim for your
pain and suffering. Under NY law, a "serious injury" is defined as any of the
following injuries:
- Fracture
of a bone
-
Significant facial disfigurement with visible
scarring
- Loss of
a limb
-
Permanent loss or use of a body organ, member or
system
-
Permanent consequential limitation in use of a
body organ or member
-
Significant limitation in use of a body function
or system
- A
medically determined impairment that prevents
the victim from conducting their normal daily
activities for at least 90 days during the 180
days immediately following the accident.
- Loss of
a fetus
- Death
These
injuries must be medically proven. Your complaints
about your injuries alone are not sufficient;
rather, expert medical testimony and medical
documentation are required to pursue a lawsuit. You
should consult with an experienced, personal injury
attorney as to whether or not your injuries meet
this "serious injury" requirement.
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THE
INSURANCE ADJUSTER FOR THE CAR THAT HIT ME IS
TELLING ME I DON'T QUALIFY TO BRING A LAWSUIT, IS HE
RIGHT?
maybe. Maybe not.
The point is that you
should NEVER, EVER take your legal advice from the
other driver's insurance company.
Remember, it's their JOB to pay you NOTHING or as
LITTLE as possible.
Many times, the
insurance adjuster will say things like "sorry but
you don't have a serious injury as required under
N.Y. law but because we feel bad about what happened
to you, we are willing to pay you $500". This
is wrong, improper and even illegal for this
adjuster to do this. First, he's not a lawyer
and surely not your lawyer so it's absolutely
improper for him to be giving legal advice to you.
Second, most often it is way too early to tell
whether you will have a serious injury or not.
Many people don't know the full extent of their
injuries for months after a car crash. Third,
do you REALLY believe they are paying you $500
because they feel bad? No way. They are
paying you $500 because they want your signature on
a Release. A Release is a legally binding
document that says you are giving up ALL rights
(both past and future) in exchange for the money.
Once you sign off, you are done forever even if you
need surgery two months later or start to have
problems that disable you from work forever.
Bottom line-- you
need YOUR OWN attorney to give you proper advice
about whether you should settle your case or not.
If you are in doubt about whether you should settle
your case or not, feel free to E-mail us at
info@ziffflaw.com
or call us at 800-ZIFFLAW and we will tell you
whether what you are being offered is fair or not.
Don't worry, if you call or E-mail us you are not
obligated to hire us but we will help you figure out
whether the insurance company is trying to take
advantage of you or not.
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Is it
true that if I rear end a car that I'm at fault?
Almost always the answer is yes. The law says that
you have to be able to stop safely if a car stops in
front of you. As a licensed driver in
N.Y. or Pennsylvania, you are obligated to have your
car under control at all times. That means if
it's snowy, you should reduce your speed for the
conditions.
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I
didn't go the doctor right away after my car
accident, and now I have pain. What should I do?
Many times people do not feel that they are
seriously injured in an accident until days or weeks
later. Many times people just feel that they were
"shaken up" or that "I'll get better in a few days".
Unfortunately, insurance companies and their defense
lawyers try to turn this against these people who
didn't treat right after an accident by trying to
claim that the people weren't really hurt in the
accident. Because of this tactic, our best advice to
people involved in accidents is to PROMPTLY get
checked out either at the hospital or Dr. It is
important that you report ALL complaints even if at
the time you just feel like you are "just a little
stiff or sore". With that said, if you did NOT
promptly seek medical attention, it does not
necessarily mean that you don't have a good case. It
just means you should sit down with an experienced
personal injury lawyer who is familiar with the best
way to deal with this situation.
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Do I
need an attorney?
Yes, it is in YOUR best interest to hire an
attorney. They will be YOUR advocate in dealing with
the insurance companies to cover the damage to your
automobile and to cover your medical expenses. A
national study showed that injured persons who were
represented by an attorney received 300% MORE than
persons who settled their claims without a lawyer.
So even after you deduct the usual attorney's fee of
1/3rd, people represented by attorneys netted twice
as much as those who accepted the insurance company
propaganda that "you don't need an attorney… don't
worry we will treat you fairly". Remember, the
insurance companies have attorneys who represent
them so you better have an attorney to represent
YOU!
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How
long will it take to get money in my case?
Every case is different. Some cases can be settled
very promptly while others may take years to
resolve. A number of factors influence how long a
case will take: the nature and severity of your
injury (the more serious your injury the longer it
will take your condition to stabilize and the longer
we will have to wait to try to start settling your
case); the amount of time you are unable to work
(like your injury, the longer you are out of work,
the longer it is before we can get serious with the
other insurance company about trying to settle your
case); and, the insurance carrier for the other
driver (some carriers settle quickly while others
never settle until you are on the courthouse steps).
The important thing to remember is that you do not
want to hurry or rush your case as you only get one
chance to pursue your case so you better make sure
it is done correctly.
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The
other driver doesn't have car insurance; how am I
supposed to collect money from him now?
If the accident occurred in N.Y. and the other
driver does not carry the insurance required by N.Y.
law there is a special type of claim known as an
MVAIC claim that can be brought to cover your
expenses. There are very special time requirements
and rules that pertain to an MVAIC claim so it is
very important that you immediately consult with an
experienced personal injury attorney if you have any
reason to believe that either the other vehicle or
the vehicle in which you are riding is not insured.
In addition to an MVAIC claim, you may also be able
to bring a claim under your OWN insurance policy.
You may have coverage under either the Uninsured or
Underinsured Motorists endorsement to your policy.
Once again, there are special rules and requirements
to pursuing these claims so we strongly suggest that
you promptly consult with your attorney so they can
decide how to handle your claim to make sure you are
protected.
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Will
my insurance company pay for my medical bills while
I wait to go to trial?
Yes, the no-fault insurance carrier should pay your
medical bills and lost wages as discussed above.
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How
am I supposed to get back and forth while my car is
in the shop?
It depends on whether or not your insurance policy
provides rental car coverage for the time your car
is being repaired. Check your insurance policy; many
will have a clause that allows you to rent a car. Be
sure to track the expense involved as this is
considered a cost that you suffered.
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How
much money can I expect to get in a settlement for
my automobile accident?
Every case is different and unfortunately there are
no hard, fast rules for determining the value of
your case. Many factors influence the value of your
case: how clear it is that the other driver was at
fault in causing the accident, the severity of your
initial injuries, how long you were hospitalized,
how long you were out of work, the permanency of any
injuries, the amount of your medical bills, etc. An
experienced personal injury attorney takes all these
factors into account in determining the reasonable
value of your case.
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Should I settle my auto accident case or take it to
trial?
The answer varies from case to case, and from
individual to individual. You should know that going
to trial can take years, but many times in return
the judgment in court is larger than in a
settlement. The client often needs to weigh the
certainty of a settlement against the uncertainty of
whether a jury will come in with a verdict that is
higher or lower than the settlement amount. An
experienced attorney can help the client make this
difficult decision by discussing with the client his
or her past experience in handling similar cases.
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The
other driver's insurance company offered me money
and told me that I don't need to have an attorney. I
haven't even hired an attorney, but I could really
use the cash. Should I take it?
No. Tell the insurance company that you'll get back
to them. In the meantime, contact an attorney
immediately. Often times an insurance company will
offer a minimal amount of money in return for your
signature stating that you are giving up your rights
to sue them. Never take an insurance check without
first consulting an attorney. You need to make an
informed decision about what is in your best
interest and you can't do so until you have gotten
advice from your own attorney. Remember, it's the
insurance adjuster's job to pay you as little as
possible for your claim so keep that in mind when
they are sweet-talking you about how they are just
trying to help you out.
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I
can't afford an attorney! What do I do?
Normally, in cases such as these, you don't pay the
attorney any money until, and if, you win your case.
If you do win, the attorneys fee is 33% of the
settlement after expenses are deducted off the top.
The personal injury attorneys at the
Ziff Law Firm (Carl Hayden,
Jim Reed and
Adam Gee)
will consult with you for free to see if you need to
have them represent you or not. Just call us
at 1-800-ZIFFLAW or E-mail us at
info@zifflaw.com
and we will be happy to speak with you right away.
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Carl T. Hayden, our senior partner, is a FACTL,
a Fellow of the American College of Trial Lawyers.
The College is not a bar association. You
cannot join; you must be invited.
Invitees are nominated by other trial lawyers and
candidates are subject to intense scrutiny that
focuses on the actual cases they have tried, their
skill as a trial advocate and their ethical
standards. Only one percent (1%) of lawyers are offered admission to the American
College of Trial Lawyers. In the Elmira-Corning
area, Carl is the only plaintiff's lawyer admitted
to the College.
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WHAT IS THE MILLION DOLLAR ADVOCATES FORUM?
Jim Reed, our Managing
Partner, was invited to membership in the Million
Dollar Advocates Forum. As it says on the
Forum website:
"Forum
membership is limited to trial lawyers who have demonstrated exceptional skill,
experience and excellence in advocacy by achieving a
trial verdict, award or settlement in the amount of
One Million Dollars or more."
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Do I have to pay taxes on a settlement for my
injuries?
No, generally you do not have to pay taxes on a
settlement unless a portion of your settlement was
specifically designated as compensation for lost
wages. The other exceptions to this general rule are
set forth below. Most good personal injury attorneys
are aware of these exceptions and will make sure
that your settlement is properly structured so as to
avoid or minimize any taxation.
In New York and
Pennsylvania, compensation for your
injuries and pain and suffering is tax free. You will receive notification
from the insurance company that paid you
compensation with documentation about your
settlement. You need to give that to your
accountant. However, there are no taxes to be paid
on your settlement.
Once you receive the settlement proceeds, the
taxability of that money is just like any other
money you invest or put in a savings account.
When you invest those monies into taxable
investments, then any profit or gain you achieve is
obviously taxable.
In a death case, an award for pain and suffering is
generally taxable to the estate. In some instances
there are legal ways to allocate the monies to the
wrongful death cause of action (which is not taxable
to the estate) rather than the pain and suffering
cause of action (which is taxable to the estate).
It's bad enough being injured, and then having to
bring a lawsuit to obtain proper compensation and
payments for your disabilities. Can you imagine the
impact it would have if you then had to pay income
taxes on those monies? Luckily, the government
realized that injury settlements are not earned
income. Rather, they compensate an injured victim
for the pain, suffering, and disabilities they
suffered at the hands of another's carelessness.
Accordingly, they generally (and thankfully!) are
NOT taxable.
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How much is my
case worth?
That is one of the
toughest questions of all because there are so many
factors that influence the value of a case including
the following:
--- How clear is the proof that the other driver is
at fault in causing the accident? For example,
a case of aggravated carelessness like a drunk
driver may be worth more than a difficult
intersection case where both drivers claim they were
in the right.
--- How serious are your injuries. Obviously,
the more serious your injuries the more your case
may be worth.
--- How much time did you miss from work?
Generally, the longer you are unable to work, the
more your case is worth. Likewise, the more
money you make per week the more likely your
no-fault insurance covered all of your economic
losses and accordingly the more your case is worth.
--- How much insurance does the other driver have?
One of the most frustrating problems we encounter is
when we represent a client who has a very
substantial case but the other driver only has the
state minimum liability insurance (just $15,000 in
Pennsylvania and $25,000 in NY). Inevitably,
not only do these people have the minimum insurance
but they also have no personal assets to pay any
large verdict we may obtain against the bad guy.
It's the old adage "You can't get blood from a
stone". Because of this, a case with more
insurance is worth more than a case with
insufficient insurance.
Because of the wide
range of possible case values, it is imperative that
you talk to an experienced personal injury attorney
as soon as possible so you can get some guidance as
to what factors are very positive for your case and
what factors might present obstacles to your
obtaining a maximum recovery. It is amazing
how often our being consulted early in a case
permits us to do a prompt investigation that defuses
many of these obstacles...
IF I AM PARTIALLY AT FAULT IN CAUSING AN ACCIDENT,
DOES THAT MEAN THAT I CANNOT RECOVER AT ALL?
No. In both
New York and Pennsylvania, there are laws that
permit you to recover even if a judge or jury
conclude that you are partially at fault in causing
an accident. These laws are called "comparative
negligence" laws because they compare the relative
negligence of each of the parties involved in an
accident. While this does permit you to
recover even if you were partially at fault, any
recovery may be reduced by the same percentage you
were found to be at fault. For instance, if
the other driver was found to be 70% at fault and
you were found to be 30% at fault and the jury
returned a total verdict in your favor in the amount
of $100,000, that verdict would be reduced by 30%
(the amount of your fault) and you would receive
$70,000. Please appreciate that this is an
over-simplification of a tricky area of the law but
it does provide the general idea of how comparative
negligence works.
Please see our
webpage on Accidents
for more information. |
