In light of the fact that no-fault PIP benefits do not fully compensate auto-accident victims for all of the damages they sustain, the liability claim is oftentimes the only way a victim can be “made whole.” Therefore, if a motor vehicle accident results in serious injury or death as a result of the fault of another driver, the injured person or the person’s estate should seriously consider pursuing a liability claim for noneconomic loss and excess economic loss.
Many accident victims significantly weaken their liability claim by not moving quickly to protect it. This is unfortunate because it is a virtual certainty that in serious injury cases, the insurance company for the party at fault will indeed move quickly to conduct a thorough investigation for purposes of building a defense to the claim. Therefore, the injured victim must counter that effort by taking appropriate steps in a timely fashion. In this regard, the injured victim should do the following:
Initiate a Thorough Investigation
The victim should arrange to have his or her legal representative investigate the accident as soon thereafter as possible. Such an investigation should include interviewing all witnesses, photographing the scene, photographing all vehicles involved in the accident (both inside and outside), taking measurements at the scene, collecting physical evidence at the scene, interviewing police officers, etc. The victim can do this by either hiring a competent private investigator or by retaining a lawyer or law firm who specializes in motor-vehicle related personal-injury work.
Photograph Injuries and Document the Course of Treatment
Where a victim has sustained significant visible injury, such as lacerations, burns, surgical scarring or other disfigurement, those visible injuries should be thoroughly photographed as soon as possible with excellent camera equipment. In addition, photographs or videos should be taken of certain kinds of medical treatment (e.g., inpatient hospitalizations, physical therapy, burn treatment, etc.). If photographic equipment is not available to the victim’s family, then arrangements should be made for a professional photographer to take these photographs.
Avoid Investigators or Adjusters Representing the Interests of the Party at Fault
As previously indicated, the insurance company for the party at fault will be conducting an investigation soon after the accident. One of the first things that is typically done in connection with such an investigation is to contact the victim and ask the victim to give a statement, either in writing or by tape recorder. The victim should refuse to do this unless he or she has first consulted with an attorney specializing in personal-injury law regarding the advisability of such an interview. In this regard, it is important to remember what the police tell suspects in criminal cases prior to taking statements: “What you say can and will be used against you!”
Refuse to Sign Medical Authorizations, Except Those Requested by the Victim’s Own No-Fault Insurance Company
Oftentimes, the injured person will be asked by an insurance adjuster for the party at fault to provide a signed medical authorization release form enabling that adjuster to obtain all of the victim’s medical records and speak with the victim’s physicians. The victim should refuse to sign such an authorization until the victim has first talked with an attorney specializing in personal-injury law to discuss the situation.
Avoid Premature Settlement Negotiations Without Proper Legal Advice
Many times the insurance company representing the party at fault will approach a seriously injured victim and offer to make a settlement of the bodily injury tort claim in exchange for the victim signing a full release of liability. It is absolutely foolhardy to consider entering into such settlement negotiations with an insurance company unless all of the following facts have first been established:
(1) The victim is reasonably certain that he or she is fully recovered from all accident related injuries;
(2) The victim has fully investigated the accident and knows the identities of any and all potential defendants and insurance companies who may have liability;
(3) The release is only a release of the liability claim and not a release of any other rights the victim may have;
(4) The victim has completely researched whether such a settlement would jeopardize other claims the victim may have against other parties or against the victim’s own insurance company for additional benefits, such as underinsured motorist benefits; and
(5) The victim has obtained competent legal advice from a motor-vehicle personal-injury specialist regarding the wisdom of entering into such a settlement. Remember, once a release is signed, the victim can never “undo the deal.”