Who's Going to Pay?
So you have been in an accident and it was someone else’s fault. You are injured and required not only a hospital stay, but months of physical therapy following a serious surgery. Who is going to pay for all these bills, and who is going to pay you for all that you have been through? The answer isn’t always quite as simple as one might think.
Obviously the driver of a car who causes an accident is generally liable for the damages that he causes. If the driver has insurance, it will in all likelihood be the insurance company writing the checks. So what happens in the mean time before the case can be resolved? What if the driver has no insurance? What if more than one person is responsible? These questions are very important and only an experienced personal injury attorney will recognize all potential defendants, and (hopefully) each defendant’s insurance company.
The Accident Claims Process
So you were in an accident and are racking up all these medical charges? You have been correctly advised by your attorney that the claims process could take months or longer, depending on your injuries. Well who is going to pay in the mean time, while the bills are racking up, and maybe, you can’t even work to provide for your family? The answer, as is too often the case in the legal world, is “it varies.”
Here are some possibilities:
The Defendant's (At-Fault Driver) Insurance Company
Sometimes, after an accident, an insurance company will actually take responsibility for its insured. It doesn’t happen in the majority of cases, but it does happen, sometimes. This is only one reason that it is important for a potential defendant to be notified early on in the process.
The At-Fault Driver's Employer
If the at-fault party is working at the time, somtimes the employer or company he works for will begin paying interim costs such as medical bills. It also may be the insurance company of the employer but you get the idea.
Your Insurance Company
It may seem strange at first, but in some instances, like for example if the other driver doesn’t have any insurance, or doesn’t have enough insurance, your insurance company will begin to make payments on the bills.
Worker's Comp Carrier
If you are employed at the time you are injured, it is important to that you inform your employer as they will often supply medical treatment or take care of expenses for medical treatment under the employer’s worker’s compensation plan.
Your Health Insurance Company
In some instances, if you are at a hospital and inform them that you were in a car accident, your own health care will initially decline coverage by claiming it is someone else’s fault. While this may or may not be true, if the cause of the accident is in dispute (and heck, if it wasn’t wouldn’t the case be over by now?) oftentimes your health insurance will cover your medical expenses until the claim is resolved.
There are certainly other sources of medical care and other pre-resolution financial resources. These are merely some of the more common sources of payment for medical expenses while a claim is pending. For a more comprehensive look at financial options for those who have an injury claim pending, please click hereFinancial Help For Accident Victims – Disability – Injured – How Do I Manage Financially After An Accident.
Lastly, sometimes the health care bills will not be paid until the claim is finally resolved. Even if this is the case, a competent accident attorney may be able to get the hospital or other care provider to wait to collect on their bills merely by assuring them they will be taken care of when the claim settles.
What if the Driver Has No Insurance?
Even if the driver has no insurance, or not enough to cover your injuries in an accident, there still may be ways to get your bills paid. First, if the driver is uninsured or underinsured, your automobile policy likely will have at least some coverage called uninsured or underinsured coverage for just such an occurrence. Even if you do not have care insurance or such insurance is not enough to cover your medical bills, your health insurance will. This is yet another reason that it is so important for all Americans to have health insurance but even if it is a result of a car accident, if insurance is not available to cover it, your health insurance should. Should you not have either type of insurance, meidcare or Medicaid may be available to you.
To review eligibility guidelines, please click here. As a last resort, should a diver have insufficient insurance but have significant personal assets or resources, sometimes money can be obtained directly form the at fault party. This is rare though as individuals of means often are well-insured.
So, Ultimately, Who Pays?
Getting back to the original question, who pays if you are involved in an accident? The answer is, depends on the accident. The important thing to understand and take from this article is the importance of having an effective injury attorney on your side. Due to the vast number of potential defendants and sources of compensation, only an experienced accident litigator is going to ensure that all avenues of obtaining funds are exhausted. AS food for thought though, here is a list of potential defendants and sources of compensation:
- The At-Fault Driver
- One Or More Additional Drivers
- Owner Of The Car
- The Parent Or Guardian Of The Driver
- The Parent Of The Owner Of The Car
- The Employer Of The Driver
- The Company That Owns The Car
- The Manufacturer Of The Car
- A Body Shop That Did Repairs On The Car
- A Service Department That Worked On The Vehicle
- The Tire Company
- The Manufacturer Of A Child Safety Seat
- The Owner Or Municipality Responsible For Repair Of The Road Driving Surface
- The Insurance Company Of Any Of The Above Individuals Or Entities
This is only an example of the parties that can be potentially responsible if you or a family member is injured in an accident. Please remember, only an attorney experienced in car accident cases will recognize all of the potential defendants, sources of money, and theories of liability.
Compensation for Time Off of Work
A serious debilitating injury affects more then just the physical body of the individual it impacts their ability to make a living in both the short term and long term. In the short term, the inability to work and make a living cannot come at a worse time then when an injured person and their family are attempting to put their lives back together, recovering from the physical injuries and mounting financial pressures that are associated with those medical costs. Bills still come at the first of each month whether one is working or not.
Most people to do not plan to be incapacitated for long periods of time through disability insurance or otherwise, and as a consequence, these are far and away the most difficult times of their lives. In the long term, a serious head injury can impact the individual’s ability to do the work that he was able to do prior to the injury. The mind and body does not function the way it used to following a serious injury and thus, the individual’s future earning capacity is also affected.
Awarding Lost Wages
This all being the case, there are a number of factors that insurance companies, judges and juries take into account when determining the proper amount of past and future lost wages to be awarded. The more information the client can obtain from their employer and provide to their lawyer the better and quicker their claim for lost wages and time off of work can be determined. The information that will need to be obtained is as follows:
- Job title and responsibilities
- Rate of Pay – Dollars/hour or salary
- Total regular hours per week
- Total overtime hours per week
- Total bonus per week or per set time period
- Weekly wages before any deductions
- Weekly wages after deductions
- Dates absent for work and reasons for those absences
- How much sick time and/or vacation time was used for these purposes by the employee
- Was the employee covered by Health Insurance, if so company name and group
- Was the employee covered by Disability Insurance, if so company name and group
- Amount employee was paid due to absence
- Amount of 401K or other employee benefits per week
Pain and Suffering
Caused by Injuries from Accidents
With serious injuries come serious pain and mental anguish. Pain and suffering is the element of damages in a civil case designed and intended to compensate the injured person for the physical and mental agony, aches, soreness, grief, anguish and inconveniences that result from being injured.
Lawsuits - Suing for Pain & Suffering
While it would be wonderful if we could turn back the hands of time and put the injured person back into the same condition as they were prior to the accident, this cannot be done. Rather, in the civil justice system when a person sues for pain and suffering, the only thing that can realistically be done is an attempt to quantify in monetary terms what a person has had to experience and endure as a result of their injuries.
By its very nature, pain and suffering is a vague and generalized concept that cannot be put into any specific technical definition. The Iowa Model Civil Jury Instructions instruct a jury that:
“Physical pain and suffering may include, but is not limited to, bodily suffering or discomfort. Mental pain and suffering may include, but is not limited to, mental anguish or loss of enjoyment of life.”
This element of damages cannot be measured by any exact or mathematical standard and the jury is instructed to “use your sound judgment based upon an impartial consideration of the evidence” however they are also cautioned “your judgment must not be exercised arbitrarily, or out of sympathy or prejudice, for or against the parties.”
Determine the Worth of Pain & Suffering
There are numerous theories that are developed and advanced in order to quantify an injured person’s pain and suffering; however the question always boils down to one not so simple question:
“What is it worth to have endured what the plaintiff endured?”
There are only two “correct” answers to that question:
What the plaintiff or injured party says it is worth based upon what they are willing to settle their claim for; or
What the jury says it is worth if the case proceeds to a jury trial.
Pain and suffering differs from person to person and from injury to injury. The most effective way to present pain and suffering arguments to both an insurance company and a jury is through a factually specific and detailed explanation of just what exactly each injury involved; what exactly each procedure required and what exactly physical therapy and rehabilitation efforts entailed. Without all of the necessary facts, a reasonable number cannot be put upon what an injured person must go through. For this reason, specific and detailed records and presentations are a must for anyone who has been injured do to thewrongful acts of another.
Loss of Use/Disability
Much attention is paid to out of pocket expenses also known as hard damages or specials in a claim for a serious injury, and rightfully so. These aspects of a claim can comprise a significant sum of the reimbursement. Additionally, many folks are familiar with the term pain and suffering. For a more detailed expiation of pain and suffering, click here. There is another aspect of a claim and a particular type of damage to which Iowans are entitled that many are not nearly as familiar which under Iowa law is called loss of full mind and body. This is in addition to and different from pain and suffering.
For illustration, let’s say you break your leg in a fall at a construction site that you were invited to tour. That obviously causes serious pain both physically and emotionally at the time of the fall, while you are being treated, and while you are recovering. You are entitled to reimbursement for that pain and suffering. But you also cannot use your leg. You can’t walk most likely or if you can, it is slow and labored with the use of crutches. Well in Iowa you are also entitled to reimbursement for losing the ability function as a normal person would for so long as it is an issue. This is loss of full mind and body. Consider if you have a job that requires you to be on your feet all day or continuous use of that leg such as a nurse, a hairdresser, s physical therapist, a firefighter, or a professional basketball player? These damages can really start o add up the more significantly and longer it affects your life.
Now what if the injury suffered in a fall or other accident was is a traumatic brain injury? The loss of the use of you mind can be even more catastrophic. If you are an engineer or IT professional, or surgeon, your career could be over. Disability refers to a situation where there is a permanent effect from an injury on a person life. It doesn’t have to be a total disability either. Certainly losing the use or function of limbs or the mind are some of the most catastrophic effects of a severe injury. But losing a finger or the feeling in a hand due to nerve damage can last as long even if it does not result in completely or permanently incapacitated. Disability is an extreme result of an accident and accordingly one that results in substantial reimbursement. However even a permanent disability must be it addressed correctly in a claim by an expert claimants attorney or the reimbursement is likely to be much less than what is deserved and the law allows for.
Family Member Claims
Certain family members can also file a claim for their own personal loss when some is killed or seriously injured in Iowa. These types of claims are commonly referred to as loss of consortium, services, and support, or sometimes simply consortium claims. The three family members that are generally allowed to make a claim are the spouse, parent, or child of the person who was killed or injured. These claims generally need to be made with the underlying estate’s claim in a wrongful death action unless it is not feasible to do so for some reason.
- Parental Claims and Damages. When a minor child is killed or injured, a parent can bring an action for loss of consortium and services. Until relatively recently however, parents of an adult child were not allowed to make such a claim. This changed in 2007 when the legislature amended the Iowa code to allow parents to bring claims for the death of an adult child as well. Note that parents are still not allowed to make a claim under Iowa law for injuries to an adult child no matter how severe.
- Loss of consortium- Parental consortium refers to a parent’s loss of the intangible benefits of the parent child relationship such as companionship, cooperation, aid and affection. Like pain and suffering, there is no mathematical formula to calculate these losses. However, these losses are valued significantly by Iowa juries and can and have led to very substantial verdicts. In fact GRL law has obtained 3 of the 5 highest ever reported verdicts for adult-child consortium claims in Iowa.
- Loss of Support- Parents are also entitled to the economic value of the loss of the child’s services which includes both the amount the child could have earned outside the home as well as the value of the child’s labor inside the home.
- Other damages- Parents are also entitled to compensations for medical bills and burial expenses as well if they incur those expenses.
- Spousal Claims and Damages
- Loss of consortium- This is the loss of the intangible benefits of the marital relationship such as companionship, cooperation, aid and affection.
- Loss of Support- this is the value of the financial support which the husband or wife would have contributed but for his or her death. If the spouse is a consistent worker and especially if he or she is a high wage earner, these claims can get quite large.
- Child Claims and Damages
- Loss of consortium- Both minor and adult children can make claims for loss of the intangible benefits of the child-parent relationship such as companionship, cooperation, aid and affection.
- Loss of support- Minor children (but not adult children) can make a claim for loss of a financial support due to a parent’s death.
How much is my claim worth and what are the most important factors to be considered when valuing an injury or death claim? Every claim is different and every claim has factors that drive the value and factors that detract from the value. Unfortunately, the more severe the injuries and the longer lasting the effects, the more a claim is “worth” to an insurance company. The following list sets forth some of the major factors that are considered when trying to evaluate claim. It is by no means an exhaustive list of factors nor is it in any order of importance necessarily. However these are certainly among the things that will be considered by and adjustor, defense attorney or claims committee when trying to evaluate the value of a given claim:
- How severe is the injury?
- Did it require immediate medical attention and did the claimant seek immediate medical attention?
- Did the claimant follow up and continue to obtain all care necessary and recommended by the medical professionals?
- Was the injured party inpatient in the hospital and if so for how long?
- Did the injury require treatment by a specialist?
- Did the injury require surgery or other invasive procedures?
- What are the medical bills?
- Did the person lose wages or salary from being off work and if so how much and how long?
- Is the injury permanent? For example is there any disability or permanent scarring or loss of function of a part of the body?
- Did this significantly affect family members including financially and emotionally?
- Can it be argued that the injured party or someone else was at fault for the accident?
- Did the injured party have a similar injury or condition before the accident for which he or she treated?
- Does the injured person have an attorney?
- If so who is the attorney? The insurance companies have files on the attorneys that specialize on these claims that help them know:
- Have we gone against this attorney before?
- Is this attorney experienced and through?
- Does this attorney file lawsuits or just try to settle everything as fast as possible?
- If this attorney does file lawsuits regularly does the attorney also take cases to trial regularly?
- What results has the attorney had at trial? Has he gotten million dollar verdicts?
- Does he try cases in both state and federal court?
One of the most difficult things a Claimant’s lawyer has to do is put a dollar figure on a serious injury or death. We don’t think that a life can be valued with money. However, if the criminal justice system fails or is not appropriate to remedy a wrong committed by another driver or person, the only remedy typically available is monetary damages. That is all a jury can do in a civil case is reimburse monetary damages. We often tell juries we wish that we could ask them to just give us a time machine and no money at all. But we can’t do that, all the civil justice systems has at its disposal to right wrongs is monetary reimbursement. However, despite the shortcomings of the system, it does not mean that those responsible should not be held accountable or that insurance companies should be able to get out of paying what the law requires. This is what we do, hold wrongdoers’ feet to the fire. These are just some of the factors that are considered when doing so
So the insurance company will not settle your claim for a fair and reasonable amount. We wish we could say this was a rare occurrence but unfortunately it is all too common.
Deciding Whether to Sue
After consulting with you experienced injury attorney such as one from GRL Law, you have decided that the best course of action is to file suit against the individual responsible for your injuries. But what does this consist of? How does a lawsuit work? What will happen? While all lawsuits are unique in the facts and law involved. The procedure of each is often similar. What follows then is an overview of what one might expect in a law suit filed in Iowa regarding an automobile accident.
An extremely important and often over-looked part of at the lawsuit is the work that goes into the suit before filing. This consists of investigation into all matter necessary to ensure that the lawsuit is filed properly and in a manner that best fits the circumstances. Sometimes, in a simpler rear-ender accident, the injuries may be relatively straight forward and the necessary investigation limited. In other cases such as semi-truck accident with fatalities, the investigation may be so complex that it is necessary to get experts such as accident re-constructionists or trucking experts involved before the lawsuit is ever officially filed. This extensive investigation is sometimes necessary to ensure that the a) the right parties are sued b) for the right things c) in the correct manner. For example, in a trucking accident case that GRL recently worked on, it was thought necessary to employ an expert well-schooled in compliance with federal safety standards for semi-trailers. This expert’s investigation revealed deficiencies in the maintenance and operation of the truck that no lawyer could have known without such a detailed analysis. It is just this type of detail oriented investigation and litigation that is what GRL Law prides itself on as separating itself from other professionals.
Lawsuits in Iowa are initiated by filing a Petition. A petition, is merely a request for some relief from a Court in Iowa. In the case of an auto accident the Petition would likely set forth that the driver, owner, or other party was negligent and a as a result of that negligence the Plaintiff was injured. The Plaintiff is the one bringing the lawsuit who is asking for redress from the Court and the Defendant is the one being sued. There can be more than one of each depending on the situation. The Petition would likely go on to state that the Plaintiff was injured and damaged in a number of ways and that the Plaintiff requests monetary compensation (money) for her injuries. This is because the civil justice system generally only has one way that it can compensate a Plaintiff for a wrong committed against her, and that is money. Oftentimes plaintiffs would just as soon go back in time and have the juryprevent the truck from ever hitting her and her family. But until the Courts are able to invent a time machine, we are stuk with money as the means to make an injured person “whole” again. Which brings us to the last necessity of most civil petitions and that is a jury request. The Peition must specifically request that the matter be presented to a jury. Otherwise, a judge would decide the case alone which is generally thought to b less desirable in car accident cases.
So the Petition sets forth allegations regarding the what the Plaintiff alleges occurred and why the Plaintiff is entitled to compensation. The Defendant then has the opportunity to respond with a rpesonxsive pleading generally in the form of an Answer. In the Answer, the Defendant responds to each allegation and alleges defenses to the allegations that purport to establish, if proven, that the Defendant is not responsible for the Plaintiffs injuries or that the Plaintiff was not injured. After the initial pleadings are filed, the issues that are in dispute and must be litigated are, at least in theory, clear and the lawsuit enters the discovery phase.
Discovery is the process by which we obtain information from the other side of a lawsuit. In Iowa, the discovery limits are pretty broad. The thought is that if each side has all the information the other side has access to, then they should be more likely to be able to both analyze the merits of the lawsuit and come to some reasonable resolution. Discovery takes a number of forms but the most often utilized are:
These are written questions that are provided to the other side in a lawsuit that must be answered honestly and under oath. Each side can initially ask 30 questions but sometimes there may be less or more depending on the circumstances
Requests for Production
These are request for copies of documents and inspection of tangible things that need to be seen or analyzed. These are not limited to a certain number and often include the exchange of documentation such as medical records, medical bills, police and investigative reports, exhibits that may be used in trial, among others.
Depositions are actually statements taken by an attorney of a party or witness, under oath and often in person. Its often easiest to simply ask someone questions about a matter in person so that if you need more information or something explained in more detail, they can do so. Deposition are often taken of the parties, eye witnesses, and doctors among others
After Discovery is completed, sometimes cases resolve. If they still don’t, each side has to prepare for trial. Certain motions or individual requests for the Court to do something or make specific ruling. are often brought prior to trial. Having an experienced injury litigator is important not only to know the procedure but to present the legal arguments necessary to ensure that your case gets presented to a jury and all important evidence is presented.
Trial is the time where each side gets to present all admissible evidence to a fact finder, generally the jury, and ask that the jury find in their favor. As counsel for Plaintiffs in automobile accident cases, we ask that the Court find the Defendant(s) liable and award money damages. The defense asks that the jury find the Defendants not liable and/or reward less than what the Plaintiff is asking for. The Plaintiff puts on all its evidence first. Then the Defense gets to put on evidence and rebut the Plaintiffs evidence. Then, generally speaking, the Plaintiff then gets to go one more time. There are opening and closing statements and the jury then decides who wins. Jury trials have been said to be popularity contests between the parties and the attorneys involved. This is once again why it is so important that you choose counsel that is best suited to prepare your case to be successful, whether it’s in pretrial settlement or an award from a jury.
Post Trial Motions and Appeals
Cases can in certain circumstances be appealed. That process is beyond the scope of this discussion. Suffice it to say, if you do not win at the trial, the case is almost always over for the Plaintiff. This is precisely why trials are so risky.
This entire process generally averages between 12-18 months in Iowa. Some claims need to be filed so that the other side gets enough information to engender a good settlement. Some cases have to be tried. Yet others can be settled before a Petition is ever filed. The one constant is that an injured Iowan needs an attorney that is well versed at all aspects of this process whether it be winning the popularity contest in front of a jury, or negositating a pre-filing resolution.