Three Strikes (in Your Accident Injury Claim)….You’re Out!
Baseball season is here. The Major League Baseball All-Star Game was played less than a week ago and several members of my favorite team, the Washington Nationals, participated in the game. The Nats are the best team in the National League (no pun intended but, by season’s end, it could be…) and are led by two young phenoms, pitcher Stephen Strasburg and outfielder Bryce Harper. Strasburg throws strikes and many of them….each hitter he faces only gets three strikes before he is called out.
Now that I have covered the “Life” part of this blog post I will move to the “Law” portion. When you are injured by someone else’s negligence and you seek to make a claim for damages you are in a position somewhat similar to a batter facing Strasburg. You have three strikes (sometimes fewer) before an insurance company or defense attorney may deny or diminish your claim (call you “out”). These are the typical three strikes:
1. Prior injuries. Insurance adjusters have access to a database of prior claims made and they use this information in evaluating your case. Often an adjuster will convince an injured person to sign a medical authorization/release so the adjuster can peruse prior, often wholly unrelated medical records. A death knell for your current claim could be if you had a previous injury and medical treatment to the same part of your body hurt in the accident which is the basis for your current claim. Back and neck injuries can be quite problematic and the more times you have had prior injuries the less “value” the adjuster places on your current claim. Ultimately the adjuster may make a low-ball settlement offer or an outright denial of your current claim. This gives you only two choices: accept what the adjuster has offered (if anything) or file a lawsuit and see if you can convince a jury of 12 that you are entitled to fair compensation for your claim. And imagine the time you and your attorney—you should definitely get one—-will need to devote to keeping a jury from being overly distracted from your current injury by prior injuries and treatment.
2. Delay in medical treatment. While many people try to tough out their injuries and resist or avoid medical attention after an accident, if you are involved in an accident and even think you may have sustained some injury or discomfort it is best to seek medical attention as soon as feasible. There is no absolute time frame within which you are required to have a medical evaluation or your claim will be lost—this is a common myth. Instead the proxmity in time of your first medical attention to the accident has a more logical consequence—the longer you wait to seek treatment the less likely an adjuster would be willing to consider the medical attention and any subsequent treatment is causally related to the accident. If you are involved in a car accident today and feel a twinge in your neck that did not exist before yet you do not see any healthcare provider until two weeks later all types of doubt creep into the equation. And you can best believe the adjuster is not automatically inclined to provide you the benefit of any doubt. If you receive such consideration you should consider yourself quite fortunate and perhaps you should also buy some lottery tickets so you may cash in on your stroke of good fortune.
If your case goes to trial rest assured the opposing attorney will highlight any delays in your medical treatment. Whether it is a delay from the date of the accident or if there are gaps in your treatment, the jury will have to decide whether to give you the benefit of the doubt and overlook them in order to render an award in your favor. The opposition will argue that delays in treatment mean you must not have been seriously injured or you had something better to do than to seek medical attention or that failing to have follow-up treatment recommended by your doctor(s) negatively affected your recovery. Any way you slice it significant delays in medical attention and treatment do not bode well for the injured person. A strike indeed….
3. Minimal physical damage to property. It’s the darndest thing…..insurance adjusters frequently assert that the injuries of someone involved in a vehicle collision are somehow proportional to the nature and amount of damage done to the vehicle(s). So, for example, if the police report estimates the damage is $2,000.00 or less and it costs about $2,200.00 to repair or “total” the vehicle the insurance adjuster may surmise “..it was a minor collision in which I can see the person wanting to get checked out immediately after the collision but I cannot see how the person could possibly be hurt enough to need ongoing medical treatment.” This type of evalaution is rendered everyday by insurance adjusters across the country and two large insurance companies seem to be the largest culprits of this summary and often wholly incorrect type of evaluation.
We can all probably think of examples of a horrific crash in which someone walked away without a scratch and no serious injury. But then there are also situations where the accident was not catastrophic in nature but some person sustained serious and often permanent injury. Insurance companies save money by minimizing payments on claims. They utilize resources to evaluate claims and one such resource which is less-than-favorable to injured claimants is Collosus®. Collosus® is a software program used by several major insurance companies which renders decisions on appropriate settlement ranges based on multiple factors. But these factors do not include the human loss such as inability to enjoy hobbies, difficulty sleeping, limiting or modifying one’s daily routine, depression and anxiety due to reduced ability to work and provide for one’s family, etc. You can click here, here, here, here, and here to read more about the computer system that may play a major role in deciding the value of your case.
4. Contributory negligence. OK..I know this is the fourth strike listed but it is pretty important because it can be strikes one, two, AND three all at once. In North Carolina (as well as Virginia and a few other states) the law of negligence includes the doctrine of contributory negligence which says, in essence, as follows: if the person who claims to have sustained injury and damages due to the negligence of another is found to have been partially negligent, the person making the claim can recover nothing. This “all or nothing” rule looms large in every negligence case and insurance companies are trained to seek and obtain evidence, testimony, and witnesses needed to prove contributory negligence as it would result in an automatic strikeout of the person making the claim. The preparation of a contributory negligence defense often begins with the insurance adjuster taking a recorded statement of the injured person shortly after the incident has occurred. Given the potential strikeout effect of a contributory negligence defense an injured person should always consult an attorney before making any statement or signing any documentation for an insurance company.
This blog article should in no way be read to be equating having an injury or accident claim as being involved in any type of game. It is serious business and you need the help and attention to have it treated as such. If you have been injured in a collision or other accident do not risk being one of the many strikeout victims at the hands of the insurance companies. Don’t go it alone. Avoid striking out with your injury claim! Contact an experienced personal injury attorney for a free initial consultation and have him or her be the designated hitter for you against the Stephen Strasburgs of the insurance world.