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Personal Injury Frequently Asked Questions

How do I legally prove that I was in injured in an accident?

Negotiations with an insurance company take place in letters and on the phone with an insurance adjuster, not in a courtroom with lawyers. So you don't need legally perfect "proof" of anything. You just need to make a reasonable argument -- in plain language, that the other person (or company) was careless, even if there are also plausible arguments on the other side.

If you make a good argument why the other person was at fault, the adjuster will realize that if the matter ever wound up in court, there is a good possibility that its insured person would be found legally responsible. Companies usually prefer to pay a reasonable claim settlement sooner, rather than risk having to later pay not only for your injuries, but also court costs and lawyer fees.

Can I get compensation if an accident might have been partly my fault?

Even if you might have partly caused an accident yourself, you can still receive compensation from anyone else who was careless and partly caused the accident. The amount of another person's responsibility is determined by comparing his or her carelessness with your own. For example, if you were 25% at fault and the other person was 75% at fault, the other person must pay -- through the insurance company -- 75% of the fair compensation for your injuries. This rule is called "comparative negligence."

A few states supposedly bar you from any compensation if your own carelessness substantially contributed to the accident ("contributory negligence"). But in practice, the question of whether your carelessness actually contributed to the accident is a point to negotiate with the adjuster.

There is no formula for assigning a percentage to your and the other person's carelessness. During claim negotiations, you will come up with one number; the adjuster will come up with another, and explain why you bear greater responsibility for the accident. The different percentages you each arrive at then simply go into the negotiating hopper with all the other factors that determine how much a claim is worth.

What if my physical limitations made the accident more likely or made my injuries worse?

What if you have a bad knee, which makes one leg a bit unsteady? Or if your eyesight, even with glasses, is not very strong? If you fall on a broken stair, are you still entitled to compensation even though someone with stronger legs or better eyesight might not have fallen?

Yes. All people, regardless of physical ability, have a legal right to make their way through the world without unnecessary danger. Owners and occupants of property must permit no unnecessary danger to any person who might reasonably be expected to be on the property. The same goes for drivers and everyone else, they must not create unnecessary danger to anyone whose path they might cross.

 

How do insurance companies decide how much they'll pay to compensate someone for an injury?

Insurance companies and lawyers use a formula to calculate a range of compensation for an injury. The final payment figure, though, is the result of negotiations with the injured person.

The formula is no secret. In general, an injured person will be reimbursed for:

  • medical care
  • lost income
  • temporary and permanent pain and other physical discomfort, and
  • loss of family, social and educational experiences.

A claims adjuster begins with the medical expenses. Then the intangibles -- pain and other noneconomic losses -- are added in by multiplying the medical expenses by 1.5 to 2 times if the injuries are relatively minor, and up to 5 times if the injuries are more significant. The multiplier can go still higher -- sometimes as much as 10 times medical expenses -- if the injuries are particularly painful, serious or long-lasting. Finally, lost income is added to that amount.

Several factors raise the damages formula from the 1.5-times end toward the 5-times end:

  • more painful, serious or long-lasting injuries
  • more invasive or long-lasting medical treatment
  • clearer medical evidence of extent of injuries
  • more obvious evidence of the other person's fault, and less of your fault.

Will my health insurance coverage or paid sick leave from work limit my compensation for an accident?

Whether you paid for medical care out of your own pocket or your health insurance covered it is none of a claims adjuster's business. The same goes for whether your lost time at work was covered by sick leave or vacation pay. In fact, it is improper for an adjuster even to ask about such payments. You paid for your health insurance and earned your sick leave or vacation pay; now the insurance for the person who caused the accident has to pay.

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