A personal injury accident can bring much anguish and uncertainty; you are in pain and bills are piling up. If you've been injured, chances are that you're missing work and, in your desperation to feel better and get back on your feet, you seek answers to questions about your case from family, friends and even the Internet. Unfortunately, the information you'll find is often wrong.
Here are 10 myths about personal injury that will help you cut through the noise and get the answers you need to get through your personal injury case.
But the person who smashed my car got the ticket…
Accident victims often believe that the person who is issued a traffic ticket is important to a personal injury case. It makes sense—after all, the police officer who issued the traffic ticket would not have done so if he or she didn’t believe the person deserved it, right? What many people don't realize is that a traffic ticket generally serves no useful purpose in a personal injury accident case. It cannot be used in a civil lawsuit unless the person pays the ticket or is found guilty by a judge at a traffic hearing. In fact, most traffic tickets are resolved without the court finding the cited driver guilty. The truth is that the issuance of a traffic ticket to the driver involved in your personal injury case has minimal, if any, significance to your case.
The liquid on the floor caused my fall...
A substance or other obstacle on the floor is often the reason that a person slips or trips and falls. As a result, many people believe that if the substance was on the floor and there is an injury, the property owner is responsible for the injury. The fact that a substance on the floor caused a slip and fall, however, is not enough. There must be proof that either a) the substance was on the floor because the property owner caused it to be there, or b) the substance was on the floor for a sufficient amount of time for the property owner to have done something about it. If proof of either is missing, then the property owner will not be responsible.
My car is worth more than that! Why I am I being offered so little?
Some people love their cars and they spend quite a bit of money to spruce them up and make them look great. So, what happens when a car is declared a total loss? Does the victim of the automobile accident get paid for all the improvements to the automobile? Usually not. The myth that an insurance company will pay for all the upgrades that may have been made to an automobile is just that—a myth.
In most cases, insurance companies will offer to pay the actual cash value of an automobile. Usually, these values are taken from figures found in popular car buying value guides such as NADA guides and the Kelley Blue Book. The value is determined as of the date of the accident. While insurance companies may bump up the value of the automobile for certain upgrades, you will not be fully compensated for your car's perceived value based on upgrades.
But I was injured. Someone has to be responsible!
A common myth of personal injury is that because there is an injury, someone must be responsible for that injury. This is not the case. In fact, two things need to be present for a person to have a personal injury case. The first is liability: a person must be liable before being held responsible for personal injury damages. Without liability there can be no damages. The second thing is damages: a person can be liable, but if there are no injuries, there is no case. These two things are dependent on one another; they must both be present for a personal injury case to exist.
The insurance company won’t know about my past injury.
This myth is common with those who have had personal injuries in the past and believe that the information will not be discovered by the insurance company. Those who believe this are wrong.
Insurance companies have access to large databases that disclose, among other things, whether a person has had:
- Prior accidents
- Prior claims
- Prior lawsuits
- Prior workers' compensation claims
As if this weren’t enough, the insurance company also has the right to get a medical authorization form allowing the insurance company to get all your medical records no matter how long ago the medical treatment occurred. In other words, don’t think for one second that the insurance company won’t know about your past medical treatment. It will.
The lawyer sold me down the river…
The sense that a lawyer betrayed his or her client in a personal injury case is a common notion that typically occurs when a client settles a personal injury case at the insistence of his or her lawyer. In such cases, the client will often feel a bit dissatisfied with a settlement and may come to believe that the lawyer failed to maintain his or her best interests, or was "bought off" by the insurance company. There is absolutely no truth to this myth for two reasons.
- First, your lawyer would not risk losing his or her license by conspiring with the other party’s insurance company to advise you to settle your personal injury case. There is simply no practical incentive for any lawyer to risk losing a professional license to do that. There are indeed unscrupulous lawyers, just as there are unscrupulous doctors, accountants, etc. But they are the exception, not the norm.
- Second, it makes little sense for your lawyer to get you to settle your claim for a smaller amount. Most personal injury cases are handled on a percentage basis. The more the lawyer gets for your personal injury case, the more the lawyer makes in fees. It isn't in a lawyer's best interest to recommend that you settle unless he or she believes it's the best option.
A lawyer is responsible to his or her client in terms of evaluating the possible risks and rewards in a personal injury case. So, a lawyer will consider a settlement offer in light of these risks, rewards and the ultimate chances of winning at a trial and recovering more money through a jury verdict. Remember, a jury can find that the other party was responsible for the accident, but still award damages that might be a fraction of a potential settlement offer. In other words, going to trial is risky, which can make a settlement the most beneficial choice in some cases.
I am not at fault! How can they say that?
We tend to believe that only one person can be liable for the injuries of another. While this is a common experience outside of the legal world, it is quite untrue in it. In fact, the majority, if not all, states have comparative fault laws. Comparative fault allows a jury to compare the fault of the parties involved in a personal injury case. For example, a person who slips and falls at a grocery store could have some fault; perhaps they were running or not paying attention to where they were going. The argument is simple. Had the person been moving more slowly and paying better attention, the accident may have been avoided. This argument applies equally to automobile accidents. Insurance companies defending their insured will try to establish that the accident could have been avoided if the person making the claim had been more attentive.
Ultimately, if a jury believes that there is comparative fault, then the jury will assign percentages of fault to all parties and then the amount of damages are awarded according to the percentages assigned. So, if the total damages awarded are $100,000 and the jury finds that the person suing (the plaintiff) is at fault by 50%, then the total amount of damages to be paid to the plaintiff would be reduced by 50%, or $50,000.00.
Comparative fault is an important consideration when evaluating the value of a personal injury case. And it is why the belief that both parties in a personal injury case can't be at fault is a myth.
My neighbor got way more money for his case and wasn’t even hurt!
Each personal injury case is unique. The facts and circumstances of one case may be nothing like those of another. One adjuster may be more liberal while another adjuster might be more conservative. There may be other reasons that someone gets more money as well, such as greater pressure from the insurance company for not settling a case than settling for an amount even though the injuries are not that significant.
We all want to compare our own results to those of others. It's human nature. But it's a myth that your personal injury case should be worth more than or at least as much as someone else’s case. There are far too many factors to be able to compare cases that way. Besides, who’s to say that your neighbor wasn’t exaggerating about his/her results?
Why do I have to pay back my health insurance company? Isn’t that why I pay for that insurance?
Many people believe that their insurance company should not take a part of their personal injury settlement money because they pay for that health insurance policy. This is a myth. The truth is that if your health insurance company pays for medical bills, it will have the right to recover a portion and in some instances all of the money that it paid as part of your treatment or recovery.
Insurance companies have language in their policies that allows them to recover a portion or the entire amount that they pay out for medical bills. This is known as a subrogation lien. This right makes sense. After all, the insurance company paid for medical bills that were incurred as a result of someone else's actions. The other person’s insurance policy should cover those medical bills, which would be a part of your personal injury case if you had paid the bills yourself. Because the health insurance company paid this for you, it is entitled to recoup those costs. Your payment of premiums for the health insurance policy does not affect this subrogation right.
But I have a case! Why won’t a lawyer help me?
You have a case, but there is a problem: there is no insurance. As stated earlier, most lawyers handle personal injury cases on a contingent fee basis. In exchange for a percentage of money recovered for your personal injury case, the lawyer risks money upfront to handle the case. These costs include copying costs, filing fees, court reporter fees, expert witness fees and other assorted expenses to move the case forward. These costs can be significant. If there is no insurance money to recover a fee and these costs, the lawyer will lose money. Let’s face it, how often do you think that might happen? This is why insurance is so important. If the person who is responsible does not have any and does not have assets, then you will have a very difficult time finding a lawyer to represent you even when you have a case.
Armed with the knowledge of the 10 myths of personal injury cases, you will have a better understanding of your legal rights and know what to expect in your personal injury case. Good luck!