What Not To Do In Case Of An Accident
It is not uncommon for a client to first contact an attorney several weeks or months after an accident. At that point the initial
investigation and many steps in the accident claim process are complete and cannot be changed.
As a former insurance claim representative, I have an inside perspective of how each part of the claim process may have a direct effect on the dollar value of the case. Now as an attorney representing persons injured in serious accident cases, I want to explain what NOT to do in case of an accident. Here is my list of ten missteps to avoid:
AT THE SCENE
1. Not Identifying All Involved Persons
The California Vehicle code states that you have an obligation after an accident to exchange information with any other driver or property owner involved in the accident. Information shall include driver’s name and address, license number, contact for the registered owner and insurance information. CA Veh. Code Section 16025 (a).
Establishing witnesses is not required in the statute, but it is required in liability disputes. The testimony of an independent reliable witness can be very persuasive in the final outcome of a case. Not having a way to contact eye witnesses afterwards is simply not helpful.
California is a pure comparative fault jurisdiction. This means that California law analyzes the relative fault of each party involved in an event that produces injury. In any case of contested liability, the testimony of a good witness may have a direct effect on the outcome of the case. There is often a narrow opportunity to speak to witnesses at the scene.
Obtain contact information for all witnesses.
2. Not Obtaining All Available Reports
Another section of the California Vehicle code requires that you complete a detailed accident report with the DMV in certain circumstances. CA Veh. Code Section 16000.(a). It is also standard procedure to call the police and make a police report for any serious accident. Again, compliance with the law is the necessary minimum.
But what if after impact, one of the vehicles crashes through the front window of a 7-11 store? I assure you that the store manager made a company report. Alternatively, if there was a slip and fall accident inside a shopping mall, there is always some company report. Failing to obtain a copy of these reports and know the contents would be a serious omission. Insurance companies have experienced claims investigators. They will look for all available information in order to minimize the value of a case.
Obtain copies of all available reports pertaining to an accident.
3. Not Taking Any Photos or Videos
Gathering photo evidence used to be something done by professional investigators. Times have changed. One recent study states that now 79% of people 18-44 have their smartphones with them 22 hours a day.
This means that many people have immediate access to their smartphone messenger, internet access, social media sites and HD camera/video. Powerful tools for preserving evidence are so common, you expect some rapid documentation of the accident. Posts on Facebook, Twitter or any other social media may become evidence, helpful or otherwise. It is usually not a good idea to post accident details and admissions to any public forum.
But a straightforward photo or video stands out as a persuasive tool A photo taken at an accident scene before anything is moved may be the best evidence of what occurred. You have a right to photograph persons and events out in public. Even after the police arrive, you have a legal right to photograph police activity from a public place so long as you do not interfere with their investigation. Also see the recent Garcia case.
Exercise your rights and preserve the accident scene with appropriate photos or videos.
AFTER THE ACCIDENT
4. Delay In Receiving Legal Advice
Payment of hundreds of dollars for an initial attorney consultation is not unusual depending on the type of case and the experience and skill of the lawyer. But in an accident case, it is industry standard for attorneys to offer a free initial consultation. The consultation is an opportunity to find out if you and the attorney can communicate well with each other. It is an opportunity to learn the usual steps of how insurance claims are handled. It is an opportunity to have all of your questions answered, including questions about costs and fees. A competent legal analysis will show possible problems with your case and how to resolve them. “A wise man is he who listens to counsel.” (Proverbs 12:15)
Obtain the advice of counsel at the earliest possible opportunity.
5. Delay In Receiving Medical Care
Of course not every accident results in a trip to the emergency room. Many times people do not seek immediate medical attention where there is a soft tissue or sprain injury. Five or six months later, after the painful symptoms have not subsided, the injured person obtains a legal consultation and then begins medical care.
In such a case, here is the question that the insurance company representative will ask: “Isn’t it true that you obtained no medical care after this accident until you met with a lawyer and they told you that you needed medical bills to establish a claim?”
The best course of action is to seek appropriate, prompt medical care and follow medical advice.
6. Minimization of Necessary Medical Care
In some accident cases prompt medical care is obtained. The doctor’s recommendation may be to do physical therapy three (3) times each week and follow a comprehensive medical plan. The problem then becomes that this medical plan takes too much time away from family or school or work, so the injured party elects to be their own physician.
Instead of a following the doctor’s advice, the injured party chooses to keep it simple and take aspirin or other over the counter remedies, do home stretching exercises and simply live with the pain. The injured party assumes that because they were in a clear liability case, the insurance company will fully pay for their claim and reward them for keeping costs down. This is not a good assumption.
In such a case, here is the question that the insurance company representative will ask: “Isn’t it true that you discontinued following the advice of your doctor because the medical care was not necessary?”
Again, the best course of action is to seek appropriate, prompt medical care and follow medical advice.
7. Not Keeping a Healing Diary
It takes time to heal. It can take even more time for a case to wind through the legal system. From the date of the accident to the date of the trial may be months or years. The police report may be a good source for documenting the persons involved and who is at fault. The photos of the scene may reveal more details of the accident. All of the medical and physical therapy records may do a good job of documenting the history of care provided.
But only the injured person knows the true extent of the pain and suffering from the day of the accident onward. Only the injured person can describe the details of pain free days to not so good days. It is often said that human nature tends to forget pain. This tendency works against being able to give a full and honest accounting. A contemporaneous log may be the best evidence of the day to day details of the healing process.
Keep a diary of daily progress toward healing.
8. Giving Too Much or Too Little Information to the Insurance Company
Many people assume that because they were in an accident that the insurance company for the other party owes them a prompt settlement as soon as possible. Actually the burden of proof is on the injured party to prove negligence and damages. To make this proof it is necessary for the injured party to explain the essential facts of the accident and the resulting expenses.
There is no legal obligation for you to give a recorded statement to the adverse carrier. Giving a recorded statement to the other party’s insurance company may be used to lessen the value of your claim. Besides gathering basic facts about the accident, the insurance representative will ask questions about how you were at fault to some degree (comparatively negligent) for the accident; about how you could have taken steps to avoid the accident; about how your prior medical condition is actually the main cause for your pain and suffering; and other questions designed to show that your testimony is exaggerated, false or unreliable.
The best course of action is to seek legal advice before making any statements to the insurance company representative.
9. Handling Your Own Case
After an accident report is made to an insurance company, their adjuster will likely contact you soon after the loss. The insurance representative will appear pleasant, professional and appear willing to help as they gather information about the accident. You must decide if you will go along with their advice or find your own attorney. Here are some considerations that may assist your decision.
The claims adjuster is professionally trained to analyze every aspect of legal liability and all of the defenses. The claims adjuster works with a legal defense team of attorneys who specialize in defending the insurance company. The claims adjuster likely has handled many hundreds of accident cases and is skilled at finding every possible way to minimize payment by the insurance company. The claims adjuster is a professionally trained negotiator who knows the “market value” of all types of accident cases. The claims adjuster negotiates accident cases on a daily basis with a heavy volume of cases.
That was my work with Traveler’s Insurance Company for a few years just prior to being admitted to the bar. If you have knowledge and experience commensurate with the claim representative, you may do well handling your own case.
Unless you have the necessary skills, you should seek legal counsel.
10. Trusting the Insurance Company
People, businesses and insurance companies are not alike. Some are fair and do the right thing. Others have no regard for anything but profit and their own self-interest. See: The Ten Worst Insurance Companies in America by the American Association for Justice.
Incidentally, I am pleased that the company I worked for was not included on the evil list. During my time as a claim representative, the company objective was to make reasonable settlements and avoid unnecessary litigation costs. For certain cases you may choose to work with the adjuster.
The burden of proof, both for liability and all damages, is always on the person seeking compensation. If you do not demand and prove everything that you are owed, you will not receive it. Sadly even with well documented claims, you may only receive empty promises from some companies. If the insurance adjuster tells you that they will accept responsibility for the accident, this statement alone proves nothing. It is not an offer of money and is no guarantee that full compensation will ever be made for your losses.
If you have been injured in an accident, it is your responsibility to prove the full extent of your loses, the damages portion of your claim. Even in a clear liability case, ascertaining and advocating for all legal damages may require several professional experts and making complex legal arguments to a court. Arguing for general and special damages requires a familiarity with many legal issues
A simple case with minor car damage and one trip to the emergency room is one thing. But for any serious injury, it must be understood that the insurance adjuster is not the person who has any responsibility for assessing and advocating for your losses. Each serious case is unique. There may be compensation for medical care, physical therapy, home care, loss of past income, lost of future income, property loss, pain and suffering, emotional distress, loss of enjoyment of life, career retraining, loss of consortium and possibly even punitive damages.
The claims adjuster is an employee of the insurance company and is subject to their control. It can be a long and winding road until that settlement check is in your hand. There are many opportunities for cases to falter along the way. Only your attorney is dedicated to working for you and bringing about the best possible resolution of your case
The better choice is to trust the person working for you.
S. Edward Wicker
Attorney At Law
All rights reserved.
Nothing in the above should be construed as legal advice to any individual or group. No attorney client relationship is granted or implied until such time as there is a written contract with mutual signatures.