Introduction. For nearly a decade, I have handled a lot of insurance claims made for all types of accidents. They have come in all shapes and sizes. Some have settled very quickly. Some have taken years. Some involved clients with a few cuts and bruises, and some have involved life-threatening or fatal injuries. Some aspects of injury claims are predictable, and other aspects are unpredictable. Although each accident is different with a unique set of facts, there are common threads that run through each of them. All claims involve real people with real emotions and challenges.
The purpose of the Ultimate Guide to Personal Injury Claims is to help you understand what goes on behind the scenes of a personal injury claim. This is a step-by-step overview of making and successfully completing a personal injury claim. If you or a loved one is injured in an accident, use this guide to assists you through the process. Even if you have an attorney, this guide can help you understand the steps your attorney is or should be taking to resolve your claim.
In most accidents, especially in car or trucking accidents, the person or company at fault has insurance. The insurance company then steps into the shoes of its insured who caused or partially caused the accident. The insurance company will assign your claim to an insurance adjuster who will decide whether and how much to pay you for your claim. The adjuster handling your claim will have handled hundreds or thousands of prior claims. This is likely your first insurance claim. You need your claim to stand out above the others. Although you may prefer not to hire an attorney for whatever reason, you will be at a disadvantage if you choose to do it alone. This is not because you are not smart or capable enough, it is simply a matter of knowing what buttons to push and levers to pull with the insurance company to get the results you need.
I believe that many people have a misunderstanding or misperception about what personal injury attorneys do. I hope that by reading this guide, you will have a better appreciation for what your personal injury attorney can do to navigate the rough waters of personal injury claims and maximize your recovery.
Many people are involved in accidents, but not all accidents require you to make a personal injury claim or hire a personal injury attorney. There are four things that you are required to prove to make a successful personal injury claim:
a. Duty – this is how we expect people to act under certain situations;
b. Breach (negligence) – this is where a person fails to live up to the expectations and standards of behavior that society has set;
c. Cause – this is the link between the accident and your injuries; and
d. Damages – this is all the harm that is caused to you because of an accident.
In addition to these four requirements, which I will explain in more detail below, it is helpful when the at-fault party has some form of insurance that will cover your injuries. Without insurance, you are left only with the assets of the at-fault person. In most cases, the at-fault person does not have enough assets to cover your injuries, so even if you went all the way to court and got a verdict for the full value of your injuries, you would not be able to collect on the judgment. The debtor, or the person owing the money, would just file bankruptcy, and your judgment would be discharged, leaving you with nothing. Consequently, you want to track down the insurance money. That is your best chance at receiving compensation for your damages.
First, there is a duty requirement. In other words, an injured person must show that the responsible person that caused the injury had an obligation not to injure you. For example, when you are driving a car, you owe a duty to other motorist that you will obey the traffic laws; by driving on public roads you need to take care that you do not put others in danger. If you own a grocery store, you owe a duty to your customers to make sure you clean up liquid spills in reasonable amount of time to prevent someone from slipping and falling. However, if the customer was trespassing after hours, for example, then the store would not owe the customer a duty. We expect people not to trespass on private property.
If someone owes a duty and then violates that duty, that person is negligent. For example, to stick with our grocery store example, if a store manager knows that a banana peel has been on the floor for 30 minutes during business hours and she fails to clean it up, she has probably violated her duty to keep the store reasonably free of hazards to customers. She would be considered negligent. Thirty minutes is a long time to let a banana peel lay on the floor.Even a clearer example, if you run a red light, then you have violated your duty to follow the traffic laws, and you would be considered negligent.
Not all negligence results in injury, but when it does, the injured person must show that her injuries were caused by the negligence of another. This is referred to as causation. Causation can be the most difficult and most expensive element to prove. People often suffer from all sorts of pre-existing ailments when injured in an accident. Joints, muscles, bones, and organs deteriorate over time. The older you are, the more degenerative your condition likely becomes. Insurance companies love to use these pre-existing conditions to get out of having to compensate you for your injuries. Often, it takes medical experts to explain why a pre-existing injury may or may not be related to or aggravated by an accident. If you are in an accident and had a pre-existing injury, you will likely need an attorney to help you handle the claim with the insurance company.
Now is the best time to touch on foreseeability in personal injury law. Foreseeability is another required element that you must prove to succeed with your injury claim. This is a complicated, convoluted area of personal injury law. Judges across the country have wrestled with understanding, applying, and explaining foreseeability in personal injury cases. Thousands of court opinions, books, law journals, treatises, and legal briefs have covered the topic. I will do my best to introduce the subject to you here.
The doctrine of foreseeability basically says that you cannot be negligent for things that you cannot expect or foresee are going to happen. If the initial negligent act causes a chain of events that eventually causes an injury, the injury cannot be too remote from the initial negligent act. In law school, there is a case that every law school student learns about called Palsgraf v. Long Island Railroad Co., which provides a good context to foreseeability. In Palsgraf, Mrs. Palsgraf and her two daughters were waiting to board a train in New York. A man holding a box of package tripped and fell, despite the railroad workers assisting him onto the train. The package exploded, causing a heavy scale to fall on Palsgraf, who was injured. Palsgraf sued the railroad company for negligently causing the man to trip. The highest court in New York decided, however, that the railroad was not negligent because the box exploding, which then caused the scale to fall, was not foreseeable to the railroad company. Even if the railroad company negligently caused the man to trip, the court said, there is no way the company could have expected the package to explode and the scale to fall.
Hopefully, you are still reading. That is a lot to take in. The bottom line when it comes to foreseeability is this: the greater number of unexpected, crazy events there are between the negligent act and the injury, the harder it is to prove foreseeability, and you could lose your case. Even though we have only scratched the surface, this is enough on foreseeability for now.
Finally, you need to have damages to make an injury claim. Your damages are what you have lost because of the accident. They may include damaged personal property, medical bills for treatment, the cost of future medical treatment that you may need, lost wages, pain and suffering, impairment, scarring, disfigurement, destroyed credit, and many other damages. Of course, the higher damages you have, the more you can expect to receive from the insurance company, assuming you meet the other elements. As a side note, in Utah, you must incur at least $3,000 in medical bills before being able to make a personal injury claim against the at-fault party.
The way you present your damages makes all the difference. Insurance adjusters see hundreds of injury claims a year. Most claims they see look the same with the same descriptions found in the medical records. Do not rely on the medical records to describe your injuries. Medical terms are to technical and not very descriptive or impactful to the layperson. For example, instead of saying, “Pete sustained a comminuted fracture of the right proximal humerus, with associated edema and neuropathy,” you should say, “Pete shattered the large bone in his right arm; there is a lot of swelling and nerve damage that caused tingling and numbness.” The first example is a good way for a doctor to explain the diagnosis to another doctor or nurse, but the second way works better when explaining injuries to an insurance adjuster or jury.
Also, video footage and photographs make all the difference. I could try to explain a 3rd degree burn to you and all the pain and disfigurement it causes the patient, but a 30 second video of someone getting their 3rd degree burns scrub brushed and cleaned would tell you everything you need to know. For more serious injuries, a “day in the life” video works very well. The purpose of the video is to follow the injured person around, capturing all the difficulties he or she faces while doing basic activities of daily living. Many of us do not know what it is like to live in wheelchair; a “day in the life” video is one of the best ways to teach people what it is like.
If you meet these criteria or are unsure whether you meet these criteria, you should call Jensen Law right away. No case is too small or big. Proving each of these elements can be very difficult, and you want to make sure you do not give the insurance company a reason to pay you less than what your claim is worth.
Report Your Property and Bodily Injury Claims to Insurance. You need to report your property and bodily injury claims to yours and to the at-fault party’s insurance companies as soon as possible. You should have received the at-fault party’s insurance information at the accident scene. If you do not have it, call the police officer or department that investigated the accident and request a copy of the police report or DI-9, which will contain this information.
You may have at least three different insurance adjusters assigned to your claims. Your insurance company will assign an adjuster to handle the No-Fault Benefits (described in more detail below). The at-fault party’s insurer will assign an adjuster to the property damage claim and to the bodily injury claim. Be sure to write down the contact information for each adjuster and claim number for each claim. You will need this information repeatedly throughout the claims process.
In most cases, your property damage claim will get resolved before your bodily injury claim. You will need to take the car to a collision repair shop to get a repair estimate. The adjuster can provide you with a list of preferred shops that routinely process property damage claims with that insurer. Allow one to two weeks for repairs depending on the extent of the damage. You will owe a deductible, usually $1,000, and the insurance company will pay for the cost of repairs above the deductible. Most auto insurance policies also cover car rental costs for up to 30 days.
If the repairs exceed the value of the car, then your car is “totaled.” The insurance company will then pay you book value for the car. Obviously, the older your car, the less damage it takes to total your car. If you purchased your car within 1-2 years, you may lose some purchasing power when shopping for new car. This is because new cars depreciate or go down in value the most during the first two years. The insurance company does not pay you back for the amount owed on the car but only what the car is worth at the time it is totaled. This is where gap insurance can help. Gap insurance is something you may want to consider when purchasing a new car, especially when the car is worth over $25,000. Gap insurance pays you the difference between book value at the time of the car and the amount that is still owed on the car. This can mean thousands of dollars.
Get Medical Treatment. First and foremost, you want to get proper medical treatment if you are injured. Your injuries might be minor or life-threatening. Either way, you want to get treatment as soon as possible. If you wait to get treated, your chances of healing more quickly may diminish. If you are questioning whether you need call an ambulance to take you to the hospital from the scene of the accident, you should probably take an ambulance. If you do not believe you need an ambulance, but you are experiencing symptoms, have a family member or friend take you to the hospital as soon as possible. After your initial hospital visit, do not stop treating if you continue to have pain or other symptoms. You will need to return to your family doctor or to the hospital if you do not improve. Do not assume that the ER doctor or any other doctor will monitor your health as closely as you do if you are injured.
Keep in mind that if you do not report your injuries to a doctor, and if the doctor does not write it down in his notes, then it never happened. When you go to make a claim against the insurance company of the responsible person, they will only consider what is in the medical notes, regardless of what you tell them months later. You need to be persistent about reporting your condition and symptoms to medical providers. Each time you see a doctor, physical therapist, nurse, physician’s assistant, chiropractor, or any other type of medical provider, make sure you tell them everything you are feeling. Describe your symptoms in detail. If you are rear-ended in an automobile accident, you may suffer multiple injuries, such as whiplash, knee bruising, shoulder pain, and lower back pain. Report each of these injuries in detail even if they seem very minor. Continue to report these symptoms at each appointment.
Do not rely on your doctors to write down all the detail. Document your injuries and treatment with photographs, video, and journal entries. As time goes by, you may forget how much pain you were in, how little you slept, how hard it was to shower, brush your teeth, comb your hair, climb the stairs, or pick up your child. These personal details are important and should not be forgotten.
Preserve All the Evidence. Do not assume that everyone will agree on what happened. Accidents happen quickly. People do not like to feel responsible for someone getting hurt. Stories change after the fact. The insurance company does not want to have to pay its money to you. For these reasons, it critical that you document and preserve everything you can as early as you can. I cannot count the number of times where my client was surprised to learn that the person who admitted fault at the scene and felt bad about what happened changed his or her mind after the insurance company got involved. If the evidence is not properly recorded or preserved, then you may end up with the short straw even though the accident was not your fault.
If you suspect a product or component part was defective and contributed to the accident, be sure to hold on to the product. Without the defective product, an attorney may not be able to take your case. Be sure to keep track of its whereabouts and who takes possession of the product. The chain of custody needs to be documented. You should avoid handling the product as much as possible to avoid any arguments that you somehow changed the product. Never destroy evidence.
When possible, photograph and video anything and everything. If you are too injured to do so, ask a friend, family member, or coworker to do it. You can never take too many photographs or video of a scene. A lack of photographs can make a case much more difficult than it needs to be. The sooner you document the scene the better. The important evidence at the scene may disappear, leaving you without any proof. Having key photographs and video can end a case favorably for you much more quickly. Ideally, you want to hire a personal injury attorney at Jensen Law who can then go to the scene and document all evidence.
Photographs can make all the difference in a personal injury case. Fortunately, most adults and teenagers are carrying cell phones that take photographs and record videos. Nowadays, people seem to pull their phones out to photograph anything and everything. Surprisingly, when an accident happens, many people do not think to take photographs or video of the scene. They think someone else will do it, such as the police officer, or they just get too preoccupied with the accident that they do not think of it. Too many accidents go undocumented, leaving the parties to guess about what happened or how an accident might have happened.
What do you photograph? In short, everything at the scene. Take several photos of each area or item of interest at the scene. For example, if you slip and fall at a grocery store, photograph and video and the spot you slipped. If there were witnesses, take a photograph of them. Photograph the shelving all around. Photograph the security cameras and the exterior of the building. If you fill out a report at the store, photograph the report. Video any conversations you have with a store clerk.
If you work in construction and injured while excavating a trench, take a picture of the trench walls, the excavator, the ladder in the trench, all equipment used at the scene, other workers at the scene, and spoil piles. Use a measuring tape and measure the depth and length of the trench, then photograph and video. If you do not have measuring tape, use a shovel or ladder to orient the viewer.
When photographing an item or area of interest, take multiple photographs of that single item. For example, in an automobile accident where skid marks were left on the road from braking, take a photograph at several angles. At each angle, take photographs from further out, then zoom in and take more photographs. When zoomed in, hold up an item, such as a pencil or wallet next to the skid mark to orient the viewer as to the width of the skid mark. Video yourself walking the length of the skid mark, and count your steps. Again, if you are unable to do this, have a family member or friend go back to the scene as early as possible to document what they can. Traffic will return to normal at this point, so it is important that the person take precautions to avoid getting injured by traffic.
The bottom line: when taking photographs or video at the scene, be detail oriented. Do not assume that something is unimportant or unrelated. Assume that everything might become important. Consider this real scenario: John was driving when he suddenly had a seizure. He lost control of his car while going 50 mph and rear-ended a stopped van. John’s two-year-old was properly buckled into a car seat in the back middle seat. Witnesses came to the car and saw the child’s face was blue and she was not moving. The child suffered a neck injury and is now a quadriplegic. Unfortunately, no one suspected that the car seat might have been defective. No one, including the police officers, took photographs of the car seat at the scene. The car seat later became a critical piece of evidence into a defective product case against the manufacturer of the car seat. Had photos or, better yet, video been taken, many questions could be answered. Without pictures or video, the case is much more difficult.
Never delete photos or video, even if you think they are poor quality. Do not worry about the quality being perfect. Just do the best you can. While it is better to have clearer photos rather than blurry ones, if you take enough, there are usually a couple that will help put the pieces of the puzzle together. Never overlook the benefit of video recording; it can make up for poor photos.
Once your photographs and video recordings are complete, back them up to your computer or external hard drive. Even after you give them to your attorney, do not delete them. Your photos and video will be important evidence, and it is always good to have extra copies. Do not put your photos or video on social media.
Do not give any recorded or unrecorded statements, except with a police officer or treating provider. When giving a statement, be as brief as necessary to convey the necessary information but no more. Do not guess about what happened. If you guess, you can be wrong, and this can affect the outcome of your case. For example, you may be asked how fast the other car was going in an automobile accident. Unless you saw the speedometer of the other car, which you most certainly did not, do not guess the speed. Instead, give a broad description, such as, “The car was going much faster than the other cars,” or “He came out of nowhere.” Always be truthful. Sometimes, saying “I don’t know,” is the only true, accurate answer.
When you hire a personal injury attorney, he or she steps into your shoes and must do what is in your best interest. This is sometimes described as having a fiduciary duty. A fiduciary duty is the highest duty that one can have to protect the interests of another. At Jensen Law, the attorney puts the client’s interests and needs above all else. Before any decision is made, the question is always asked “Will this benefit the client above all else?” If the answer is no, then we do not do it. If the answer is yes, then we proceed.
A personal injury attorney performs a multitude of services. When you are injured in an accident, there is a lot to worry about. For example, if you are injured on the job, you will need to apply for worker’s compensation benefits and possibly disability benefits through your human resources department. Or if you are injured in a car accident, you will need to arrange for collision repairs and a car rental, and get compensation for the property damage. This is just a tip of the iceberg when it comes to all of the issues you will need to confront if injured in an accident.
The following is a list of services that a personal injury attorney will do for you. All of these services are included in the contingency fee, which is discussed below in more detail. Having an attorney take care of all these items for you will remove a lot of stress and worry from your life. Your goal is to get well. The attorney’s goal is to maximize the value of your case as quickly as possible, as well as making sure you receive the best medical treatment for your injuries.
Collaborate and Listen. The first thing an attorney does is help you think about your case. It is critical that the attorney listens to your story to gain an understanding of what you have been through. The attorney must ask the right questions, then listen to your answers. You are in the best position to tell your story, not the attorney. You lived the accident. You are the one experiencing the injuries. Only you know how the accident has impacted or changed your life. The attorney can help draw out all of the necessary and helpful information you have about the case, then organize it in the most effective, persuasive way that gets you the best result.
To illustrate this point, let me tell you about Susan Smith. Susan lived a pretty quiet life. She lived alone, had no spouse, no children, and only one person she would consider a friend. Susan was very shy and had never developed socially. Susan worked at a factory plant, where she placed zippers on bags. It was a boring job that provided very little stimulation, but it paid the bills. The highlight of Susan’s week came on Tuesdays and Thursdays when she would attend baking and cooking classes at the local city hall. This was a time when Susan could share experiences with her single friend and feel like a “normal person.”
One evening, Susan was driving back from the grocery store, when an oncoming semi-truck suddenly crossed into her lane. Susan swerved to the right to get out of the way and drove off the road where she rolled several times down a steep bank. Both of her arms flew out of the window and were crushed, leading to a double amputation of her arms.
Unfortunately, some would look at Susan and say, well she did not have much of a life anyways, so her case is not worth as much even if she did lose both arms. This was the insurance adjuster’s first reaction. However, this is the wrong way to think about Susan’s tragic loss. The one thing Susan looked forward to at the beginning of each week was going to her baking class. She did not live to work at the factory. She worked so that she could see her friend while doing a hobby that she enjoyed. The accident took this one thing away from her. Now, she was left with nothing. With Susan, the fact she had no family, led a mundane life, and had only one hobby made the loss of her arms that much more tragic. She lost it all in the accident.
A skilled attorney that genuinely cares for his clients can discover the most impactful, relevant facts that will maximize the value of the case. It takes lengthy, thorough discussions, however, to discover this information, so the attorney must be willing to spend the time and make the effort to obtain such information about the client.
Open Your Claim. Once you decide to move forward with a claim for your injuries, we send letters of representation to all responsible parties and their insurance companies. A letter of representation not only informs the recipient that Jensen Law represents you, but it also instructs the recipient to notify their insurance carrier immediately and to preserve all evidence that may be relevant to the accident.
Once we know which insurance company insures the responsible party, we contact the insurance company and open the claim if it has not already been opened. To open a claim, we provide the adjuster with specific details about your case, including when, where, how, and why the accident happened, your injuries, and plan of treatment, if known. We instruct the adjuster to contact only Jensen Law, not the client.
In addition to contacting the responsible party’s insurance carrier, we also contact your insurance carrier. You may be entitled to certain benefits under your insurance policy, such as No Fault Benefits or Underinsured Motorist Coverage. We fill out the necessary applications to make sure you begin receiving these benefits in timely manner. In Utah and in twelve other states, every person injured in an accident, regardless of whose fault, is entitled to receive No Fault benefits. These benefits are part of automobile coverage. Under No Fault you are entitled up to $3,000 for medical bills, $250 per week for lost wages, and up to $25 per day for 365 a day for household services. You can still make a claim on the at-fault party’s insurance for bodily injury even if you receive No Fault benefits. Click here for more information on No Fault/PIP coverages.
Next, we contact your health insurance company, if any, right away so that we can help coordinate the payment of medical bills. The last thing you need is to worry about bills not getting paid and having collection agencies coming after you. Additionally, if you do receive a settlement or an award, you will likely need to pay your health insurance company back a portion of what they have paid out for medical bills. This is called subrogation. Jensen Law makes sure that you pay back only what is legally and fairly required.
Investigate. Simultaneous with opening your claim and sending letters of representation, we immediately begin investigating your accident. We request all reports from all investigating agencies. For a workplace injury, there might be a sheriff’s report, an OSHA (Occupational Safety and Health Administration) report, a police report, a fire authority report, an EMS report, a BLM (Bureau of Land Management) report, or an independent third-party report. Additionally, we search for and request any video or photographic evidence. There might be dash cam and body cam videos. There could be security surveillance footage in the area or on nearby building. Witnesses, police officers, and insurance companies may have video and photo evidence. In rare cases, someone has posted a video on YouTube of your accident. There are even people who attach cameras to their cars and sell photos and videos of accidents that they capture.
Next, we talk to all witnesses. We record each conversation. Before the witness interview, we prepare an outline of our questions and issues that we want to cover with the witness. It is best to get statements from witnesses as early as possible; otherwise, memories fade and defense attorneys and insurance companies will interfere or influence witness accounts. At Jensen Law, we do not outsource witness interviews. We believe this is a key part of properly developing your case. An attorney is in the best position to know what information is needed from and what questions to ask the witnesses. With some exceptions, this should not be outsourced to a private investigator.
There is a lot of information available on the internet. We search for all related news articles, industry manuals, magazines, published articles, blog posts, study guides or training manuals, videos, photographs, specifications, and much more. This information is all purchased or saved to make sure it is preserved. Such documents can become critical in proving the claims of your case.
In more complex cases involving several witnesses, technical data, or a longer span of time, investigation is ongoing and can take months or even years. The key is to continue digging until we find what we are looking for and answer all questions. We search every lead and turn over every stone.
Identify All Available Sources of Payment. In many cases, there is more than one person at fault for an accident. Or, if there is only one person at fault, then he or she may have more than one source of insurance to cover your loss. In rare circumstances, the at-fault party may have assets that you can successfully recover. Whether there is one person at fault or several, it is critical that you find all potential sources of payment. In almost every case, this means finding the applicable insurance policies that will cover the accident. This becomes especially important when the obvious at-fault party does not have enough insurance.
Coordinate Medical Bills. It doesn’t take long for the medical bills to start piling up after you’ve been injured. Having health insurance or worker’s compensation coverage can help lessen some of the stress that comes with increasing medical bills.
Your attorney at Jensen Law will make sure the medical providers have all the information they need to pay your bills. If medical providers do not bill your health insurance company within one year, they will often deny payment. We make sure that this does not happen. We help you provide all the information to the medical providers so that they can then send the bills on to your health insurance company.
You may get injured at a time when you do not have health insurance or any other way to pay for medical treatment. The last thing we want is for you to not get treated and on the road to recovery. If you are not insured, we direct you to doctors that will treat you now and agree to receive payment when your case settles. There is no reason you should get inadequate treatment because you did not have health insurance, especially when it was someone else’s fault that you are injured. If you have already treated before you hire Jensen Law, we contact the medical provider to arrange a delayed payment. This will help avoid your medical bills going into collections.
At the conclusion of your case, we pay all of your outstanding medical bills. You will have the peace of mind knowing that everything is taken care of, and you will not be bothered by any collections agencies or creditors.
Coordinate Medical Treatment. We have a lot of experience working with different doctors, surgeons, physical therapists, occupational therapists, chiropractors, radiologist, and other medical experts. If you are uninsured or unsure of who to see for your particular injury, we can direct you to the right place. We can refer you to someone in your area who will give you great treatment and get you back on your feet.
Minor Settlements. When a minor (person under the age of 18) receives a personal injury settlement or award, the court must approve the settlement. This is a complicated and time-consuming process. At Jensen Law, we represent the minor through this process. We file a Petition with the court that lays out the terms of the settlement along with some case information. In addition, we file a proposed Order, which the judge will sign upon approval. We also have a conservator appointed (usually a parent), that ensures the money is conserved in a bank account or other investment. We assist the conservator with depositing the funds into the correct bank account that complies with the judge’s order.
With few exceptions, the minor cannot receive funds until he or she is 18 years old. Because there may still be several years before the minor can receive the money, we assist the family with deciding how to invest the funds in a way that balances risks with reward. We work closely with settlement planning companies that provide several options for the family on how to reach the best outcome for the minor. This requires understanding the minor’s and the family’s goals for the child when reaching adult hood and beyond. For example, a child can schedule payments that fit with his or her plan for college, graduate school, a home purchase, marriage, and career goals. Doing what is in the best interest of the minor is our top priority.
Negotiate Liens and Medical Bills. If you receive a settlement or an award, you will likely owe money to medical providers or health insurance companies for medical treatment. After obtaining the outstanding balances, we work diligently to get these amounts reduced to as little as possible in the fairest way possible. This means more money in your pocket.
Coordinate Presettlement Loans. Being in an accident may cause financial stress. For example, you may be out of work and without a pay check. You may be on the verge of losing your job because the pain is just too much, and you are worried about paying the bills next month. Completing your case can take months, and you may need money now to make up for the smaller pay check. In these situations, there are companies that will loan you an amount of money now with the agreement that you will pay them out of the settlement.
Beware that these loans are very expensive and carry very high interest rates. You want to avoid them at all costs. However, if you are in bind, and need a presettlement, Jensen Law can put you in touch with lenders that have the most competitive interest rates and who are local. Once your case settles, we help repay the loan off, and in some instances, negotiate a reduction.
Coordinate No-Fault Benefits. If you are injured in an auto accident, you can receive payments for medical bills, lost wages, and household services benefits. These benefits are called No Fault Benefits, and they are required under every automobile insurance policy. Personal Injury Protection or PIP is the benefit that pays medical bills. The typical maximum amount for PIP is $3,000. You can also receive up to $250/week for lost wages and $20 a week for household services. Household services are things you do in or around the house, such as laundry, vacuuming, dishes, sweeping, cleaning, and yard work.
Receive the Best Outcome Possible. In a nutshell, we want to get you the best result possible. This does not mean that you will always get the result you want or hoped for, but that you receive the best possible result. We want each client to know that no other person or attorney could have received a better result than Jensen Law received. This is achieved by keeping the client informed, educated, and involved at each stage of the case. Clients that are left in the dark cannot possibly know that the attorney is doing everything he or she can to get the best result.
At Jensen Law, we have a wealth of experience, skill, and knowledge to receive the best outcome. The insurance company knows that we can and will fight for the fairest result. We have a proven track record of competence, which leads to results. Whether you think your injuries are minor or catastrophic, we are your best partner to handle your case.
Provide Some Guidance on Financial Planning. Research has shown that most people that receive money for their personal injury claim spend it all within a few months on depreciating assets or consumables. We want to help our clients grow their money as much as possible. This requires some thought, discussion, and planning. We can direct you to the right people that will help your money grow and become an asset that you can rely upon for years to come. There are a lot of companies that hold themselves out as settlement planners. We want to make sure that you receive the best advice from the most well qualified financial advisers. Our experience in working with trusted companies will help. There is more on this below.
Mediations. Negotiation is a skill. In many cases, your claim is settled through mediation, which is a formal negotiation process with a mediator. A mediator, usually retired judge or attorney conducts the negotiation between all the parties. Before the day of the mediation, your attorney sends a letter or brief to the mediator with all of the case facts. The letter argues your side of the case to the mediator. The other side’s attorney also sends a letter to the mediator arguing their side. The mediator reviews the letters before the day of the mediation so that he can assess the case value. In many instances, the mediator will discuss the case with your attorney before the day of the mediation to get a better understanding of the case and key issues.
At Jensen Law, we have mediated numerous amounts of cases. We have the experience and skill set to maximize the value of your case through artful and scientific negotiation practices. During mediation, you will encounter a number of disputes and arguments that can either help or hurt your case. We know the right buttons to push and levers to pull to get the other side to properly value your case and pay the settlement you deserve.
Litigation. Sometimes the insurance company will not offer you a fair settlement or anything at all. In these instances, you will need to file a lawsuit. Filing a lawsuit sounds like a scary thing, but in actuality, it is not exactly what you see on television. The other side is represented by an attorney who represents the insurance company for the at-fault party. In most cases, the at-fault party is hardly involved; the insurance company calls all the shots. Defense attorneys and insurance companies are used to handling lawsuits. In some cases, they expect it.
Sometimes, the parties just need to learn more facts about a case before they can reach a settlement. Litigation is a tool that the parties have to gather more facts. If it is unclear about who is at fault or whether the accident caused the injury, a lawsuit might need to be filed. This is a way for the parties to understand the case much better. Settlement discussions can resume any time during litigation.
Litigation is the process that takes place after a lawsuit is filed. First, the injured person, the “Plaintiff”, files a Complaint in the correct state or federal court. The person being sued, the “Defendant” then files an answer to the complaint. The defendant may also ask the judge to end the case, which is called a motion to dismiss. Assuming the judge does not end the case, the parties begin fact discovery. Fact discovery consists of gathering all the facts. Each side sends written questions, documents, names of witnesses, and all relevant evidence that they wish to use on their case. It is the time where each side takes depositions of witnesses and other people with knowledge about the case. Depositions are a very important way of building and strengthening the arguments of your case. There are thousands of books written on the art of taking depositions. Fortunately for you, we have taken hundreds of depositions and have hundreds of hours of deposition training.
A very important part of litigation is expert discovery. This is the period of time where the parties hire the very best experts to prove or support the arguments of the case. In some cases, each side may need to hire multiple experts. For example, in a construction accident case where a client is crushed by a collapsed retaining wall, the plaintiff may need to hire a structural engineering expert, civic engineering expert, construction management expert, accident reconstructionist expert, and medical experts. This can get very expensive, but hiring the right expert can lead to a better resolution. Hiring the wrong expert or failing to hire the right type of expert can spell ruin to your case.
After fact and expert discovery, the parties will typically attempt to settle the case through mediation. If the case does not settle through mediation, then the parties file a document with the court telling the court that they wish to get trial dates. The parties then have a pre-trial hearing with the judge to schedule due dates for all of the evidence and motions that will be part of trial. The parties file motions with the court telling the judge what evidence should or should not come in at trial. The judge hears all of the arguments then decides what evidence he will keep out and let in. Depending on how the judge rules, the parties may again attempt to settle the case at this point.
Trials. If the case still does not settle, then trial begins. Trials can last anywhere between one day to several months. Most trials are decided by juries who the court selects randomly. Jury selection is one of the most critical parts of the trial. If you select the wrong jurors, you can lose no matter how persuasive or skillful you are in your arguments and presentation. If you select the right jury that agrees with your side of the case and awards you money, this can be very exciting and rewarding.
Once a jury is selected, the attorneys give opening statements. This is a time where the attorneys lay out their best case and tell the jury about all of the helpful evidence for their case. Opening statements usually go about 45 minutes per attorney. Opening arguments need to be clear, concise, and convincing. Technical information needs to be watered down in very simple terms so that the jury sides with you immediately. If they do not understand your case, how could they ever award you money. Many attorneys forget that they have been working on the case for years, and the jury has a lot of catching up to do. It is important to make sure the jury does not get lost from the beginning. This leads to confusion and distrust.
After opening statements, the parties put on their evidence. The plaintiff goes first, then the defendant. This mostly consists of witness testimony. This is the meat of the trial, where the attorney attempts to get the best, most helpful information out of the witnesses. Usually, the attorney has already deposed the witness several months before trial and knows generally what the witness is going to say. This helps avoid too many surprises at trial.
Once the parties have put on their evidence, then closing arguments are given. Each side’s attorney gets to argue to the jury why they should win. Rather than just summarize evidence, the attorneys get to persuade the jury with legal and factual arguments of why the jury should or should not award money. As with opening statements, attorneys should be concise, clear, and convincing. Juries are tired and want to go home. In the O.J. Simpson trial, the jury only deliberated for 30 minutes after a 9 month trial! They wanted it to be over. You are only doing yourself and your client a favor by ending quickly. Giving a shorter, more persuasive closing argument takes time. Just as Mark Twain said, “If only I had more time, I could write you a shorter letter.”
After closing arguments, the jury begins deliberating over the evidence. If the jury is out for a short time, this is usually bad for the plaintiff. The longer the deliberation, the better chance that they will award the plaintiff some money. Once they have reached a decision, the jury foreperson fills out the verdict form and gives it to the judge who reads it in open court. It is devastating if you lose. It is exhilarating if you win. All you can do is hope that they’ve seen the case your way.
Arbitrations. Rather than go to trial, the parties may choose to arbitrate the case. Arbitration is like trial but much less formal. You do not have a judge but an arbitrator who decides the case. The parties put on their evidence in the allotted time, and the arbitrator makes her ruling. If you put on enough favorable evidence, she will award you money. If you do not put on enough favorable evidence, then you will get nothing. Arbitration is much less costly then jury trials and the rules are not as stringent, which allows for some flexibility during the discovery process.
A lawsuit begins by filing a complaint or petition in the proper court. The complaint describes the parties involved, the laws that give the court the right to decide the lawsuit, the background facts that explain what happened, and the damages that the plaintiff is seeking. Once the complaint is filed, the plaintiff has a period of time, usually about 3-4 months to serve the complaint and summons on the defendant. The summons is a simple document that tells the defendant that he or she is being sued and gives instructions on how to respond.
The defendant – the person or entity being sued – files a response to the complaint. Most often, the defendant’s first response is the answer. The answer denies or admits certain allegations in the complaint. The defendant may choose to file a motion to dismiss for lack of jurisdiction or for failure to state a claim. These are just fancy ways of saying that the plaintiff has not given enough information to file a valid lawsuit.
Assuming the judge does not throw the case out, the parties begin fact discovery. Fact discovery is just what the name suggests – the period of time when the parties uncover the facts of what happened before the lawsuit was filed. Fact discovery is kicked off with the plaintiff’s initial disclosures, which include documents, statements, photographs and video recordings, medical records, employment information, and other evidence that the plaintiff has in his or her possession. The defendants then delivers the same types of things to the plaintiff. Once the parties have sent initial disclosures, then they may send written discovery. Written discovery can be interrogatories or requests for production of documents. Interrogatories are questions that a party wants answered. The question may be as simple as “What is your date of birth?” to something more complicated, such as, “Please describe all complaints that you have received from customers that relate to the product defect in question.” You have only a limited amount of questions that you can ask, so you need to be selective with your questions. Also, it’s useful to not exhaust all of your questions on the first go around. Your questions will get better and more relevant as the case goes on, so it’s good to save a few questions after you know more about the case.
The most common question we get from clients is “How much is my case worth?” While we have an answer to this question, the answer is not very satisfying: it really depends. The value of your case is not always clear at the beginning of your claim. The more information we have about the accident, insurance coverage, and your injuries, the easier it is to answer this question. The amount of money you receive will depend primarily upon the following:
After receiving money, rarely does a client say, “Wow, that’s enough money to make all of this worth it.” In most cases, no amount of money can make up for the stress, worry, frustration, heart ache, inconvenience, and sleepless nights, not to mention the injuries you received in the accident that are likely still causing you problems. Unfortunately, no matter how much money you received, you got the short end of the stick when you were injured because of someone else’s poor chain of decisions.
Contingency Fees. Most attorneys that handle personal injury claims take a percentage of the amount of money that you receive. If the case settles quickly the fee is usually 33% or less. If your case goes all the way to trial requiring a lot of attorney hours on the case, then your fee may be closer to 40%. These fees are contingent upon you receiving money. If you receive nothing, then the attorney takes nothing, regardless of how much money the attorney has spent on your case. If you lose or receive no money, then the attorney eats all the costs. Keep in mind that most attorneys take costs out in addition to attorney’s fees. Also, fees usually come out before the costs.
You should always try to negotiate your fees. If an attorney settles your case with very little expense and within a few months, your attorney will be more likely to lower your fee. The longer your case goes on, assuming the attorney is actively pursuing your claim, then the less likely your fee will be reduced. However, you should still ask for a reduction. After all, you are the person with the injuries; you deserve as much as you can get.
Distributing the Money. You may receive money through a settlement, an award, or a verdict. A settlement is reached if you and the opposing side agree on an amount of money that is acceptable to both sides. Most claims settle in this way. An award or verdict is an amount of money that someone else decides to give you.
The money you receive will be reduced to pay 1) expenses, 2) attorney’s fees, 3) lienholders, and 4) medical providers. These amounts vary greatly from case to case. Sometimes, you can catch a break with lienholders or medical providers, leaving you with more money. Perhaps your attorney will agree to take less of a fee, also leaving you with more money.
Your attorney will have to spend money to successfully resolve your claim. The money spent on your case should be thought of as investment. Initial expenses will include fees for obtaining documents such as a police report and medical records. There will also be in-office expenses for travel, office supplies, printing, etc. At Jensen Injury, we charge a one-time fee of $250 for all in-office expenses.
It is an exciting time to receive compensation for your injuries. Several months or even years may have passed before you finally finished your case and received some money. During the time your case was being handled, you probably already began thinking about how you would like to spend it. Perhaps you to want to finish the basement, buy a new car, build a pool, start a new business, or go on your dream vacation. Whatever you are planning, it is always better to take some time to discuss it with a financial planner before the money goes up in smoke. Unfortunately, the large majority of people that receive money from a personal injury settlement spend all of the money within 3 years and have nothing to show for it. We want to help you avoid this.
There are a multitude of ways to spend or invest your money. We want to focus on investments or places to put your money with the expectation that the money will grow, not shrink. Consider one or more of the following investment vehicles for your money:
Think long term when you are looking to invest, especially when it comes to investing in stocks, mutual funds, index funds, annuities, and real estate; the longer you can keep the money in the investment, the better return you are likely to receive. This is largely due to the rule of compounding interest, which is simply the exponential growth in interest that occurs when you continue to reinvest your gains. Also, companies tend to be more volatile in the first 3-5 years you invest. After this time period, however, you will see more consistent returns, especially with mutual funds and index funds.
The type of investments you should consider will depend on your age, the amount of money your investing, your tolerance for risk, and personal financial goals. The younger you are, the riskier investments you can make. The older you are, the more conservative you should be because you have less time to make up for those losses.
As a side note, with few exceptions, the money you receive from an injury settlement is tax free. You do not have to report it on your state or federal tax return. The IRS does not consider money received for personal injury is considered a gain; rather, the money is just getting you back to where you were before the accident or making you whole. This leaves more money for you to invest in assets that will appreciate over time, making your money last for as long as possible.
Caveat: we are not financial advisors and do not hold ourselves out as experts in personal finance or investments. Once you receive your money, we encourage you to meet with a certified financial planner who is in a better position to give you more specific information on the best investment for you.
You never know when someone else’s stupidity or negligence is going to injure you. Also, you do not get to choose who injures you. It would be nice if whoever injures you has enough money to pay you for your losses, but this is not usually the case. Therefore, the quickest and most useful thing you can do is purchase more insurance for yourself and your family so that you know you are covered financially if misfortune strikes.
There are three main insurance policies that you can buy that will pay you if disaster strikes: automobile, umbrella/excess, and health. The most important coverage under your auto insurance is underinsured/uninsured (UIM/UM) coverage. This coverage applies when the person that injures you does not have enough insurance. This coverage is extremely cheap for the great benefit that it provides. For literally cents a day, you can get tens of thousands of dollars more in insurance coverage. Call your auto insurance carrier today for a quote on increasing your UIM/UM coverages.
Umbrella policies is insurance that provides extra coverage above your automobile, homeowners, and boat insurance. Umbrella policies also allow for UIM/UM coverage in excess of your auto UIM/UM coverage. If the person that injures you does not have enough auto insurance to pay for your injuries, and your auto policy does not have enough UIM coverage, then you can tap into your umbrella policy for more coverage. This coverage is cheap because it is rare that someone needs to use the coverage.
Having health insurance is helpful when involved in an accident. Although you can still get medical treatment if you do not have health insurance, there is one main advantage of having health insurance: your medical treatment is cheaper. Health insurance companies pay your doctors less for treatment that if you were to pay the doctor yourself directly. That is because health insurers have contracts with doctors that give them cheaper rates. At the end of your case, you will be required to reimburse your health insurer for the amount of money it paid to your medical providers for your medical bills. As already stated, health insurers get discounts from the medical providers. Therefore, the amount you owe back for your medical treatment at the end of the case is less than if you do not have health insurance.
Do Not Let the Deadline Pass for Making Your Claim
Each type of claim has a deadline or statute of limitations period. The statute of limitations is the amount of time you must file a lawsuit in court. If you do not file the suit within the statute of limitations period, your claim is gone for good. It goes without saying, you need to know when the period to file suit ends.
Unfortunately, the answer is as easy as one would hope. In Utah, there are different statute of limitation periods for different kinds of injury cases. It may not be obvious which statute of limitations period applies to your case, so you will need to ask a personal injury attorney to help you. At Jensen Law, we are happy to assist you. Choosing the wrong deadline can cost you your entire case.
Auto 4 years
Governmental 1 year (notice of claim)
Medical Malpractice 2 years
Contract 6 years
Wrongful Death 2 years
Underinsured/Uninsured Motorist 3 years
Product Liability/Defect 2 years
Dramshop Liability 2 years
The statute of limitations period for governmental claims is tricky and deserves more explanation. Even attorneys get tripped up on timely filing governmental claims. Here are the key points to keep in mind:
If you make a personal injury claim against the government, you have one year to file a Notice of Claim with the correct state agency. The notice of claim must properly outline your claim including a description of the facts of the accident, an explanation of why the government is at fault, and support for all the damages you are claiming. Then, you must send a certified copy to the proper governmental agency. For example, if you were hit by a UTA bus, then you would send the notice to UDOT or the Utah Department of Transportation. Or, if your child was injured at school in Alpine School District, then you would send notice to Alpine School District. If you are unsure about who to send notice to, send multiple notices to multiple departments. It’s also a good practice to send notice to the Utah Attorney General’s office.
Once you have found the right governmental department or agency to notify, you need to address the notice to the correct representative within the department. This must be done within one year of the date you were injured. Fortunately, each governmental department must choose the person who receives the Notice of Claims and publish that on http://www.corporations.utah.gov/gia/index.html.
After you have delivered the notice to the correct person, the ball is now in the government’s court. The government can either accept responsibility and negotiate a settlement or deny responsibility and wait to see whether you will keep pressing the issue. The government has 90 days to decide. Important: You then have one year to file a lawsuit from the date that the government responds to your Notice of Claim in writing or one year from the expiration of the 90-day mark, whichever is earlier.
If it is not confusing enough already, there is another rule for children. The statute of limitations is tolled, or paused, until the child turns 18 years old. For example, if Sarah is injured at school when she is 8, she has eleven years or until the age of 19 to send a Notice of Claim. This is because she has one year after she reaches 18 to send her Notice.
Arbitration: Legal proceeding to help resolve a legal dispute. Arbitration is less formal than trial proceedings in court. Rather than a judge, an arbitrator decides the case. Each party to the lawsuit voluntarily selects a neutral arbitrator to hear the evidence and make a decision.
Adjuster: The person that works for the insurance company that handles an insurance claim. The adjuster reviews all the claim material and makes a decision about whether the claim is covered and, if so, how much the claim is worth. Sometimes, attorneys and adjusters can never agree on the value of the case, so the attorney must file a lawsuit.
Age of Majority: An adult or person that has reached age 18.
Asymptomatic: The absence of symptoms. Symptoms are ways to identify how or what you feel when you are injured. They are medical descriptions to help a doctor and others know the best way to treat your injuries. For example, symptoms of spinal injury might be dull aching, numbness, tingling, pins and needles sensation, shooting nerve pain, or tightness.
At-Fault Party: The person or company that causes the accident or shares some responsibility for the accident. There may be more than one at-fault party in an accident. You as the injured person may also be considered an at-fault party.
Bodily Injury: This is a term used most commonly in insurance policies to describe injuries to a person in an accident. It includes all damages that a person may receive from an accident. Bodily injury and property damage are distinct and have different “limits of liability” in insurance policies.
Chain of Custody: This is the order in which people control or transfer evidence in a case. Documenting the chain of custody is important to preserving the integrity of the evidence and combating opposing arguments that the evidence was changed or manipulated.
Comparative Fault: This describes the percentage of fault that a plaintiff may share for causing an accident. Comparative Fault is described in percentages. In most states, including Utah, if the injured person shares 50% or more of the fault, then she cannot recover any money.
Complaint: The legal document that is filed with the court that tells the court how you have been wronged and are entitled to relief. You file a complaint to “sue” someone or to open a lawsuit.
Contingency Fee: The portion an attorney receives out of an personal injury settlement, verdict, or award. Contingency fees are contingent upon the injured client receiving money; if he or she does not receive any money, then the attorney is not paid. They are usually 1/3 of your total settlement. Contingency fees allow the attorney to take the case without the client having to pay any out-of-pocket fees or retainers.
Defendant: The person or company that is being sued or blamed for a something. The defendant allegedly did something wrong that injured someone else.
Degeneration: Generally described as the normal wear and tear on a body from aging. Every adult has some degree of degeneration in their joints and all parts of the body
Depositions: The taking of someone’s testimony under oath. It is basically an interview under oath. Depositions are typically recorded by a court reported, who types down each word of the questions and answers.
Deponent: The person being deposed. The deponent is required to attend the deposition either by subpoena or notice of deposition. If the deponent is not a party to the lawsuit, then the attorney that wants to depose him must serve or deliver a subpoena to require his appearance. If the deponent is a party to the lawsuit, then the attorney must serve or deliver a notice of deposition.
Initial Disclosures: The information that each party is required to give to the other side right after a lawsuit or complaint has been filed. Initial disclosures “kick things off” by requiring that each side disclose the evidence and information they have in their possession that may be relevant to the case.
Interrogatories: Written questions that one side has for an opposing side during a lawsuit. Each side gets a limited number of interrogatories that they can send to the other side. The party that receives the interrogatories must answer them within a set period of time, usually 28 days.
Investigating Agency: The governmental department that visits the scene to investigate the cause and effect of an accident. For car accidents in Utah, the Utah Highway Patrol and local police departments usually investigate and report. For workplace injuries, an agent from Utah Occupational Safety and Health division of the Utah Labor Commission will investigate. Other agencies might include Department of Child and Family Services (DCFS), State Bureau of Investigations, Fire Departments, Medical Examiners, or Bureau of Land Management.
Liability: The determination of who is at fault for an accident. Whoever caused an accident is considered liable. If someone has liability for an accident, then he or she must compensate the injured person.
Lien: The right to receive a portion of a settlement, award, or verdict that someone gets for their injury claim. A lienholder is the person that holds the lien and is owed the debt. A lien attaches to the money until the lienholder is paid. For example, a doctor may treat you and agree to wait to be paid for his services until you receive money from the at-fault party. The doctor would have you sign a lien agreement to enter into this arrangement.
Limits of Liability: The most money that an insurance company is willing to pay for injuries caused by its insured.
Litigation: The process carried out during a legal dispute. Litigation usually begins with the filing a lawsuit or complaint.
Mediation: The formal process of negotiation. Mediation is voluntarily agreed to between the parties in a dispute. It gives the parties a chance to try to settle the case before having to go to trial or spend more money on litigation.
Medical Provider: A person or facility that gives medical treatment or care to a patient. This most commonly includes medical doctors, chiropractors, nurses, hospitals, dentist, physical and occupational therapist, neuropsychologists, and physician assistants.
Minor: A person 17 years old or younger.
Negligence: An action or omission that violates a standard, duty, or expectation. It is the failure to act properly in given situation. Negligence does not have to amount to a crime.
Plaintiff: The person that is injured who files a complaint or lawsuit against the at-fault person.
Pre-existing Condition: A physical or mental sickness, injury, or other health issue that someone has before being in an accident. Insurance adjusters look for pre-existing conditions to lessen the amount they have to pay out on a claim.
Pro Se Litigant: Someone who is not represented by an attorney in litigation.
Recovery: The money that an injured person receives from the at-fault party.
Requests for Production of Documents: Written requests for copies of documents and other evidence from one party to another during litigation. This may also include a request to inspect certain evidence, such as a defective product. Each side is limited to a certain number of requests.
Subrogation: The right of an insurance company, such as a health insurer, that has paid money out to an injured person to collect money from the at-fault party, usually the at-fault party’s insurer. Subrogation rights are in almost every health insurance policy.
Symptomatic: The presence of symptoms following an injury or sickness.
Tort: A wrongful act caused upon another. Tort is a fancy way of saying injury. Tort law is the same as personal injury law.
Underinsured Motorist Coverage (UIM): The insurance coverage that applies when the person that injures you does not have enough insurance. For example, John is driving his car and hits Sally, a pedestrian. John, the at-fault party, has $25,000 in insurance with Allstate to cover Sally’s injuries. Sally’s medical bills total $100,000. Therefore, John is underinsured. Sally has automobile insurance with Geico. Under her Geico policy, she has $100,000 in UIM coverage. Sally can receive the $100,000 after Allstate, John’s insurer, pays the $25,000.
Utah Code Annotated (UCA): The compilation of Utah laws and statutes. The entire UCA can be accessed for free online at https://le.utah.gov/xcode/code.html.