Let’s say, for example, that a 70 year old lady who has preexisting arthritis in her neck and back is stopped at a stop light and is suddenly rear-ended by a careless, negligent driver who bumps into her at a mere 10 miles per hour and causes very minor damage to her vehicle, barely putting a dent in her bumper.  An insurance adjuster may claim that the 70 year old victim could not have been seriously injured from the 10 mile an hour impact that barely dented her bumper and refuse to fully compensate her for her injuries.  Most people would agree that the average person would not be severely injured from such an impact.   However, in this example, the 70 year old accident victim falls within the Eggshell Plaintiff rule.  She had existing arthritis in her neck and back that made her more prone to injury and she may experience severe neck and back pain from the 10 mile per hour impact and require several months of physical therapy, or even surgery, in order to fully recovery.  The 70 year Eggshell Plaintiff accident victim is entitled to fully recover all of her medical bills as well as full compensation for her pain and suffering just as if she had been rear ended by a driver that was going 80 miles per hour and completely totaled her car.

The Eggshell Plaintiff doctrine represents a policy of the law to hold negligent persons fully accountable for their actions.  It would not be fair to hold that an injured accident victim should not be fully compensated for an injury because they were hypersensitive or predisposed to severe injury.  The person may have been exercising the greatest caution to protect himself or herself from injury, yet they were injured by the carelessness or negligence of someone else.  The law deems if fair and just to allow the injured victim to fully recover for all of their injuries despite their preexisting condition and predisposition to being severely injured.

Car accident victims who fit the description of an Eggshell Plaintiff need aggressive representation by a dedicated car accident lawyer and should not expect their matter to be resolved in the same manner or time frame as a typical car accident case.  Instead, they should be prepared to deal with auto accident insurance adjusters whose response often is a flat out refusal to fully compensate them for all of their medical bills and pain and suffering.  They should expect and plan in advance to have their attorney file a lawsuit against the negligent driver and their automobile insurance company and litigate the Eggshell issue at a full blown trial before a jury.  Their attorney will also need to make sure that the judge hearing the case properly instructs the jury that under the Eggshell Plaintiff rule the jury is required to award you full monetary compensation for all of your medical bills, pain and suffering, lost wages and all other injuries resulting from the accident.

Documenting Your Pain and Suffering in a Medical Chart

A medical chart is relied upon heavily by lawyers, insurance adjusters, judges and juries in accessing a person’s injuries.  Medical charts are viewed as reliable because they are prepared by doctors who are supposed to be unbiased and give an honest opinion of the nature and extent of a patient’s injury.  A doctor will typically perform a physical examination and order X-rays, MRIs, CT scans, or other tests to aid in the diagnosis of your injury.   But physical examinations and radiology results don’t always disclose the full extent of the pain and discomfort you are experiencing.  Often, the only way your physician will know how much pain you are suffering is if you tell your doctor, “it hurts.”

Creating a Record in Your Chart

When you tell your doctor that you have pain in a particular area of your body, the doctor will typically make notes of this in the medical chart prepared in the ordinary course of business.   This will create a record that becomes part of your patient chart.  The patient chart will later be produced as part of your entire medical records.  Any statements in your chart where the doctor notes pain you are feeling in different parts of your body will be very strong evidence in support of your request for pain and suffering damages.  For example, in a head injury case, if the neurosurgeon's notes mention that you said you were experiencing headaches every day, this will be noted in your chart.  If there were no such notes in your file, the neurosurgeon may only document what is visible in MRI and CT Scan results.  Then a brain injury lawyer will be missing a critical piece of evidence that could have corroborated your statements.  The neurosurgeon's notes in a medical charge would add credibility to your claim in the eyes of an insurance adjuster, or a judge or jury.

Continue to Report How You Feel

It is equally important that you continue to report to your doctor how you are feeling, and, more specifically, the pain that you are feeling on a day to day basis.  It is critical that each time you go in for a doctor’s visit, the doctor knows exactly how you are feeling and where you are hurting.  That way, your physician can continue to keep the most accurate medical chart with notes that continue to document the pain you are experiencing.  Otherwise, when it comes time to submit a claim demand, the only thing your attorney will have is the initial report prepared by the physician documenting the pain you felt on the first visit.  By regularly notifying your physician of the pain you feel, the physician will be more likely to additional reports describing your pain, resulting in a more accurate patient chart that will accurately reflect the length of time that you have been having discomfort or pain, hence you and your lawyer will have the benefit of this key evidence in support of your personal injury claim.

Prop 213 Limits Recovery for Uninsured Drivers and Owners, or DUI Cases

Under Civil Code Section 3333.3 (which will be hereafter referred to as Prop 213), both uninsured drivers and owners of automobiles (and potentially to their spouses) involved in an accident may not recover non-economic damages, which are losses for pain and suffering, inconvenience, loss of companionship, disfigurement, and other types of losses that are not based on loss of money.  Also, a person who is found to be guilty of driving under the influence of alcohol or drugs may not recover non-economic damages.  If Prop 213 applies to your case, the statute will completely bar you from recovering any non-economic damages.

Non-Economic Damages

The term “damages” refers to a loss that you have suffered and for which the law provides a right to a financial recovery.  The term “non-economic” refers damages that are not based on loss of money, as opposed to “economic” damages, which are based on a loss of money.  For example, your right to obtain a financial recovery for the pain that you are suffering as a result of your injuries would be characterized as a type of non-economic damage.  In contrast, your right to obtain a financial recovery for your medical bills and lost wages because your injuries prevented you from being able to work are economic damages.  Prop 213 does not limit your ability to recover economic damages. 

Spouses of Uninsured Drivers

If you were involved in an accident with a car that is owned solely by your husband or wife, and your spouse did not have automobile insurance for the vehicle, then you may have a very difficult time recovering economic damages.  Insurance companies will typically take the position that Prop 213 applies to you as the husband or wife of the vehicle owner pursuant to California community property law.  This assumes that the vehicle was purchased during marriage and with community property funds.  If the insurance company takes this position, they will offer you nothing as far as non-economic damages.   Based on the facts and circumstances of your case, an experienced personal injury attorney will either recommend that you take the case to trial and litigate the Prop 213 issue, or concede to the application of Prop 213 if it indisputably applies to your case.

You Will Need an Experienced Attorney

If you were an uninsured driver or the owner of an uninsured automobile that was involved in an accident, or if you were driving under the influence of alcohol or drugs and are convicted of a DUI violation, you should expect to have a stiff opposition to any claim for the recovery of non-economic damages.  You will need the help of an experienced personal injury attorney who has handled Prop 213 cases before.  With vigorous legal representation by just such an attorney, you still may be able to obtain a partial recovery for both your economic and non-economic damages.  Also, an experienced personal injury lawyer may be able to obtain full payment for all of your medical bills while settling your medical bills at a fraction of the total amount, resulting in some significant excess funds that could be paid to you. 

If you were using a cell phone at the time of an accident, this can be very easy to prove.  To begin with, depending on your condition after the accident, a police officer may pick up your cell phone and check your call log, discover that you had been using it and make a note to that effect in a police report.  Also, the lawyer for the other person involved in the accident could subpoena your telephone records and easily prove that you were using your phone at the time of the accident.

Studies on cell phone usage and driving clearly establish the harmful effect of making phone calls while operating a vehicle.  According to the National Transportation Safety Board (NTSB), cellular telephone usage on the road clearly inhibits a driver’s reaction time.  Some studies have suggested that using a cell phone while driving a vehicle can inhibit a driver’s reaction time as much as if the driver was slightly intoxicated.  This has led many states, including California, to enact laws prohibiting use cellular telephones and driving at the same time.

California law absolutely prohibits the use of a cellular telephone while driving.  So if you are found to have been using a cell phone at a time when an accident occurred, you may be held partly or fully responsible for the accident.  Because California follows the rule of comparative fault, you may still bring a claim, but your damages will be reduced according to your percentage of fault.

If the other driver was using a cellular telephone at the time of the accident, your personal injury attorney will be able to use that to prove that the other driver was being negligence and failed to exercise the utmost caution when they were driving their vehicle.  Your car accident lawyer may be able to use the other driver’s phone records to show that the other driver was careless and was not paying property attention to the road.

Threat of Rabies

Most domesticated dogs receive vaccinations for the rabies virus when they are puppies, as this is a requirement under California law.  However, not all dog owners give their dogs the legally required vaccinations.  And while rabies may be virtually nonexistent nowadays among domesticated dogs when they are born, if a dog is not properly vaccinated then it will be susceptible to contracting the disease.  The rabies virus is carried by many wild animals that dogs may come in contact with, such as raccoons, skunks, coyotes, foxes, bobcats, wolves, and bats.

Treatment for Rabies

If it is determined that a dog that bit you has received its rabies vaccinations and was not carrying the rabies virus, then you are safe and cannot contract the disease.  If, however, it is determined that the animal that bit you was carrying the rabies virus, you will need to receive immediate medical treatment for the virus.  The rabies disease is treatable with about 100% rate of success if treated immediately after a bite from a dog carrying the rabies virus.  But once the symptoms of rabies begin, usually in about one to three months, the rabies virus will infect your brain and death is virtually certain.  Therefore, treatment must begin before the first signs of any symptoms of rabies.  It has to be determined whether the animal is carrying the virus.

Report to Animal Control

As soon as possible after a dog bite attack, you should report the incident to your local county Animal Control agency.  The owner of the animal is legally required to report to Animal Control within 48 hours, and to provide you, as a dog bite victim, with their name, address, telephone number, name and license tag number of the dog, and information regarding the status of appropriate and necessary rabies vaccination.  However, the owner may not be aware of this legal requirement and the penalty for violation of the law is not severe.  More important, once Animal Control gets involved, compliance is mandatory, and the penalties for noncompliance become very severe.  After all, your health may be at risk.

Compliance with Animal Control Mandatory

Once Animal Control request that the owner produce the animal and the rabies vaccination information, compliance is mandatory.  Failure to comply with Animal Control’s requests is a crime and can carry jail time.  Most dog owners will immediately provide Animal Control with the required vaccination information, which is imperative to protect your health and safety.  Animal Control will also require that the animal be quarantined, usually in the owner’s home, pending the results of the rabies investigation and/or testing.  This will protect others pending a determination that the animal does not have rabies and failure to comply with the quarantine requirement is also a crime carrying jail time. 

Talk to a Dog Bite Lawyer

Once you have received medical treatment and have determined that you are not at risk of contracting the rabies disease, you should contact a dog bite lawyer immediately.  Do not talk to the owners for any reason other than to obtain information about the dog’s vaccinations.  If the owner’s insurance company contacts you (their homeowners’ insurance carrier may provide coverage for the dog bite and therefore an insurance agent may attempt to contact you), do not speak with them.  They will attempt to elicit statements from you and use your statements against you to reduce their coverage for the bite or attack.   Your San Diego dog bite lawyer will handle all communications with the owner and his or her insurance carrier, and make sure that your legal rights are protected.

Take Pictures

Take as many pictures as possible, before you receive medical treatment if possible, after you are initially treated, during the days that follow, and after any subsequent treatment.   A picture is worth a thousand words and there is nothing better than a picture to show a jury at trial the trauma and the horror you have been through than photographs depicting your injuries.  Pictures will become very important to you and your dog bite attorney as you are building up a case to submit to an insurance company or to present to a jury at trial.

What Should I Do If I'm Injured on Someone Else’s Property

Under the rule of premises liability, property owners are required to exercise a reasonable degree of care to ensure that the property is in a reasonably safe condition.   If the property is rented by a tenant who either lives there or runs a business out of the premises, the tenant also has a duty to exercise a reasonable care to make sure the property is in a reasonably safe condition.  The rule of premises liability exists specifically for your protection as a visitor or guest at the property, to minimize and avoid the risk of injuries such as the injury you have suffered.  To hold a property owner or tenant responsible, follow these five (5) simple steps:

Get Treatment

First, the most important thing you need to do is to take care of your health and get prompt medical treatment for your injury.  Depending on the severity of your injury, you may need to go to the hospital or you may need to go to urgent care and be seen by a doctor, and you may need ongoing treatment.  

Find Out Cause

Second, find out what caused the accident or incident that led to your injury.  For example, if you down a staircase, look to see if there were there are any defects or dangerous conditions on the stairs such as loose steps or shaky handrails that may have caused or contributed to your fall.  Make notes of any issues that were due to the carelessness or neglect of the property owner or the tenant occupying the property, such as excessively polished and slipper stairs.   

Witnesses

Third, were there any witnesses to the accident or incident?  Make notes of the names, addresses, and phone numbers of any and all eye witnesses and anyone else present at the scene.  Your personal injury lawyer will later want to interview these witnesses, and having their contact information will be very useful in helping your attorney build up a strong case to present to an insurance company for settlement or a jury at the trial of your case.

Photographs

Fourth, take as many photographs as possible of the property and the scene of the accident or incident.   In particular, take lots of pictures of the defective or dangerous condition that contributed to your injury.   If you don’t have a camera, use your cell phone or borrow a friend or family member’s cell phone.  Photographs are very powerful evidence that can greatly assist you and your personal injury attorney in building up your case that the property owner or tenant failed to keep the property in a reasonable safe condition.

Attorney

Fifth, contact a good personal injury attorney San Diego and discuss the circumstances of the incident that caused your injury and whether representation will be needed in your case.  Take to your attorney’s office all your notes regarding the incident, including but not limited to all witness contact information, photographs you have taken, hospital records, doctor’s reports, police reports, and any other documentation you have related to the incident and your injuries suffered therefrom. 

If your injury is severe, go to the fifth step immediately and contact a personal injury lawyer at once.  In cases of severe injuries, it is critical that you have representation as soon as possible.  Insurance companies will be particularly concerned with minimizing their exposure in a severe injury case and may obtain statements from you that they will later use against you to deny or reduce your claim.  A personal injury attorney will be able to protect you and your legal rights and interests.  Having legal representation is absolutely essential in severe injury cases.

In a serious accident case, most likely the police have already come out to the scene of the car accident and made a police report.  If the police never came out to the scene of the accident or the collision was not reported to the police, it is imperative to report it immediately.  Contact a personal injury attorney at once to obtain legal advice on how to rectify this issue and make sure the accident is properly reported to the authorities.

The next important thing you need to do is report the accident to your insurance company.  Most insurance policies have standard provisions that require you to report an accident within a matter of days, or as soon as practical and possible after a car accident.  If it turns out the other drive did not have insurance and you need to go through your own insurance company or your uninsured motorists’ coverage, you want to make sure that your insurance company will not deny you coverage for failure to timely report the accident as required by your auto policy.  

When contacting your insurance company, don’t give them any statements until you have representation by a lawyer.  Just report the vehicle collision, that’s it.  If you speak to an insurance company representative too long, you may find yourself making statements that the insurance company will later use against you to deny coverage.   Insurance company’s have a bad reputation for being good at eliciting statements from you and then using those statements against you to deny your claim. 

The next thing you should do is contact a car accident lawyer San Diego.  An experienced lawyer will then take over the representation and protect your legal rights and interests.  Your lawyer will handle communications with the insurance companies involved, so that you are not talking to them and possibly making statements that could harm your case.

In order to avoid problems with the DMV, you will also need to file an accident report with the DMV on the prescribed form.  If you have a lawyer, then your lawyer will handle the making of this report on your behalf.   If you are a client of Injury Law Group, we complete all of the required information on the form on your behalf, have our clients sign it, and mail it to the DMV on your behalf.

Finally, it is extremely important that you start keeping a daily journal in which you jot down notes about the car accident and your injury, while the incident and surrounding circumstances are still fresh in your mind. Include as many details as you can about the accident and your injuries, as well as how your injury is affecting your ability to enjoy the things you used to do before you were injured.  Later, during settlement negotiations or at the trial of your legal matter, you and your injury attorney will refer to these notes to refresh your recollection and present a stronger case.

You have a right to view and obtain copies of your medical records and your personal injury attorney can always subpoena the records from hospitals, clinics, doctors, therapists, or any other medical providers who have treated you.  But a subpoena takes time and is not always the most tactful approach for obtaining records; it may be overkill. 

Since you have a right to access to your medical records and can request them directly from your various health care providers, an experienced personal injury attorney will, at the outset of representation,  have you sign an authorization for release of records and other information.  Your attorney can then use that authorization to obtain your records informally from your health care providers without the need for a subpoena, thereby avoiding the potential objections and delays that are commonly associated with the issuance of a subpoena upon a health care provider.  In most cases, medical care providers will promptly provide your medical records in response to an informal request accompanied by a patient authorization for the release of records and information.

In order to facilitate your attorney’s investigation and assessment of your case, you can request your records from different providers on your own before you even retain your personal injury attorney.  That way, by the time that you interview a couple of attorneys and select the one who you feel comfortable with to represent you, your medical records will already be in preparation and may even be prepared and can be immediately reviewed by your attorney and analyzed by a medical expert witness.

On a case by case basis, I would recommend that a client immediately contact their medical providers and request their medical records before even coming in for an office consultation.  This can facilitate the expeditious resolution of your med mal case, since a request from a patient may be dealt with more expeditiously by a health care provider.  Requests from a personal injury attorney, which can intrinsically suggest that a lawsuit may be imminent, may be dealt with more cautiously by the medical provider.

How Does Med Pay Coverage Work?

Med pay is a type of supplemental health insurance coverage that is tied to your automobile policy.  Many drivers aren’t even aware that they have this type of coverage until their personal injury lawyer examines their auto policy with them after an accident.  Just exactly how does this type of insurance work?  Well, it depends on whether the specific type of coverage attached to your auto policy is purchase primary or secondary.  Insurance companies typically offer two kinds of med pay: primary coverage and secondary coverage.  Each works a bit differently.

Primary Coverage

Primary coverage usually costs more and provides a higher level and extent of coverage.  With primary med pay, your personal injury lawyer will gather together and submit your medical bills to your auto insurance company and they will pay the bills up to coverage amount.

Secondary Coverage

Secondary coverage costs less and is only available if you have existing health insurance, since the coverage is secondary to your health insurance.  With secondary coverage, the insurance company will pay your deductible, copays and any portion of your medical bills that your insurance company does not cover, up to your total coverage amount.  For example, if you have an HMO health plan, which typically has only copays (everything else is covered), med pay will pay your copays.  If you have a PPO health plan, which typically pays only a percentage (for example, 80% of your bills), med pay will pay the copays and the percentage of your bills that is not covered by your PPO plan (for example, 20% if 80% of your bills were paid by your insurance plan).  As you may have guessed, in addition to seeing your medical bills the insurance company will want to see your HMO or PPO plan policy to determine the extent of its responsibility under the relevant policy provision.

When Is Med Pay Available?

Med pay typically is not available from the insurance company of another negligent driver who gets into an accident with you.  Most policy provisions only cover you, the insured, and other occupants of your automobile.   So you either have to have med pay under your policy, or the person’s car you were in would need to be insured under an insurance policy that has such coverage.

Limited Coverage

Coverage is not unlimited, and in most cases it is a very minimal amount.  If you have a substantial amount of medical bills or it is anticipated that you will incur a substantial amount of medical bills, your San Diego injury attorney will still need to follow the standard injury law procedures in making a claim demand and obtaining reimbursement of your medical bills from the insurance company in order to cover all of your medical bills.

Can I Cash Out?

Frequently, a client will ask me, “can I cash out my med pay and get paid directly the full amount?”  Usually the answer is “no.”  Insurance companies will not let you simply request a sum of money without documenting your out -of-pocket losses.  Instead, your attorney will have to submit your medical bills to your auto insurance company, and your auto insurance company will need to confirm the type of health insurance coverage you have, such as HMO or PPO, as well as what percentages of your medical bills your health plan is and is not required to pay.  Only after such a review will your insurance company be able to calculate and pay the portion of your medical bills that are not covered by your health plan.  Moreover, in most cases you will not receive a check.  Instead, the insurance company will mail payment directly to your health care providers, unless, of course, you can prove that you have already paid the health care providers.

Injured at a Business Establishment

In some cases, if you were injured in a store or other business establishment, the business owner’s commercial general liability insurance policy may provide for medical payments coverage.  An experienced injury attorney will know which business establishments have med pay coverage, and can investigate and verify the existence of such coverage.  If it exists, your injury attorney may be able to get you cash now, before you even go to treatment or incur medical bills.

When a vehicle is declared a total loss by the insurance company, you will receive a monetary payment equal to the replacement value of your vehicle.  Depending on if you have a vehicle loan and the amount of the loan, receiving the replacement value of the vehicle could have a very unwelcome result.  You could both be stripped of a vehicle and end up owing money to your lender.   If you owe more on your vehicle loan than the replacement value of the vehicle, your lender, who is a lienholder, will receive the replacement value, which it will apply to your loan balance.  You will owe the remaining loan balance. Thus, you will be both without a means of transportation and you will owe your lender the remaining loan balance.

For example, if your totaled vehicle has a replacement value of $20,000 and you owe $30,000 on the loan, the insurance company will pay $20,000 to your finance company or lender and you’ll end up owing $10,000 on the loan ($30,000 loan balance – $20,000 replacement value paid = $10,000 remaining balance on the loan.)  You will then be left in a situation where you have no vehicle and you owe $10,000 to your lender.  This is where gap insurance can help.  

When you buy a car, many dealers attempt to sell you gap insurance for a small added cost.  Many people elect not to purchase gap insurance because they want to pay as little as possible when buying a car, some chose to purchase gap insurance to protect themselves, and some end up purchasing gap insurance without even realizing that they are buying it.  

To determine whether you have gap insurance, your car or truck accident lawyer will examine your automobile purchase contract.  If your truck or car accident lawyer determines that you have gap insurance, then after your truck or car is totaled and the insurance company pays for the replacement value, gap insurance will pay for any remaining balance that you end up owing to your lender.  For instance, in the above example, gap insurance will pay for the $10,000 remaining balance, so you won’t owe any money to your lender.

Many of the best doctor’s in California will provide medical treatment on lien basis.  If you or a loved one has suffered a serious head injury or brain trauma, your brain injury lawyer can send you to a neurologist (a brain doctor) who can treat you on a lien basis.  If you have suffered a neck injury, your neck injury attorney can send you to a chiropractor or neurologist who can treat you now and wait to get paid when you win your case. These neurologists and chiropractors who perform services on a lien basis are good doctors that care about helping people.  Because they care about helping people, they will treat you now and have their medical bills paid later from your recovery.

Now doctors who perform services on a lien basis usually will not work on a contingency basis, meaning that if you don’t win your case they don’t get paid.  This is in contrast to your personal injury attorney, who will work on a contingency fee basis, such that your attorney will be paid only if you win.  With medical bills, your doctor will require you to agree to pay the medical bills regardless of the outcome of your case.   Still, if you don’t have medical insurance, this is a much better scenario that if your doctor required payment of your medical bills at the time of treatment

When Will My Car Be Totaled By an Insurance Company?

Many people assume that if the cost of repairs is less than the value of your vehicle, then it would make economic sense for an insurance company to pay for the cost or repairs instead of the amount required to replace your vehicle.  This analysis misses one important point that personal injury lawyers must explain to their clients: when your truck or car is totaled and the insurance company pays you the replacement value of your vehicle (so that you can go out and buy a replacement vehicle), the insurance carrier will then sell your totaled vehicle for the salvage value since the title has become salvaged.  Therefore, in asking "when will my car be totaled by the insurance company," you have to consider and take into account and uses the salvage value of your vehicle.  You then subtract the salvage value from the replacement value, to arrive at a reduced replacement value, which is the value that is used in determining whether to declare your truck or car a total loss.  In determining the reduced replacement value and declaring your vehicle total loss, the insurance carrier will also have to take into account sales taxes and DMV fees that would be paid when buying a new vehicle.  These would also be offset by your deductible amount.

Determining the Reduced Replacement Value

Therefore, in determining whether an insurance company is likely to declare your vehicle a total loss, your San Diego injury lawyer must first deduct the salvage value of your vehicle from the replacement value, resulting in a reduced replacement value.  That value will then be compared to the cost of repairs to determine whether it is more economical to total your car or truck, or pay to have it repaired.  For example, if the replacement value is $15,000 and the salvage value of your car is $5,000, then you would deduct $5,000, arriving at a reduced replacement value of $10,000.  If the cost of repairs is less than $10,000, lets say $8,000, the insurance carrier will pay for the repairs.  If the cost of repairs is greater than $10,000, lets say $12,000, then the insurance carrier will total the vehicle. The insurance carrier will then sell the vehicle for the $5,000 salvage value, effectively having paid out only $10,000 on the claim instead of the $12,000 cost of repairs, saving it $2,000. 

Repair Estimate May Increase

Most insurance companies will usually want to leave a little slack between the reduced replacement value and the repair estimate, to account for an increase in repair costs once the repairs begin.  For this reason, you cannot assume that just because the repair estimate is less than the reduced replacement value, your vehicle will not be declared totaled. As to just how much slack should be left, that is determined on a case-by-case basis according to the nature and location of damages to your vehicle.

70% Rule of Thumb 

A good rule of thumb used by personal injury attorneys to determine if your car or truck is likely to be totaled is the 70% rule, meaning that the cost of repairs should not exceed 70% of the value of your vehicle.  This is a rule of thumb, not an exact science. There are a multitude of factors that determine salvage value and hence the reduced replacement value and ultimately whether or not your car will be totaled. Still, this simple rule works a majority of the time.

Sources Used by Insurance Company

Insurance companies usually determine the amount required to replace your vehicle (replacement value) using their own sources, such as Autosource, which publishes values based on market research of what cars are selling for in your area.  In comparison to Kelley Blue Book (KBB) values, which most consumers are familiar with, the value used by the insurance company will fall somewhere in between the KBB excellent condition private party value and the KBB retail value.

Taxes and DMV Fees

When the insurance company calculates the reduced replacement value of your car or truck to compare it to the cost of repairs, it must also account for sales taxes and DMV fees that it will pay you as part of the replacement value.  These are additional costs that further lower the reduced replacement value. Often, an insurance adjuster may neglect to account for these items.  An experienced California car accident lawyer will make sure that these items are accounted for, as they may make the difference as to whether your car is totaled or repaired.

Deductible

If you were at fault and going through your own insurance, one other factor that your car or truck accident lawyer must consider is in arriving at the proper reduced replacement value is your deductible, which would be an offset against the amount that the insurance company would be required to pay out on your claim.

In California, even if you were partly at fault, you can still bring a claim for damages to obtain monetary compensation for your injuries.  This is by reason of the doctrine of comparative negligence, also called comparative fault.  Under the rule of comparative fault, even if you were partly at-fault, you can still obtain financial damages against/from the party who caused your injuries.  The rule of comparative negligence is based on a public policy in California that a negligent party who was partly at-fault for your injuries should not be let off the hook simply because you also were partly negligence.  Under the rule of comparative fault, the Court will assign a percentage of fault to you and your total damages will be reduced accordingly.

If you were partly at-fault and the other party was partly at-fault, your claim may be more difficult to prove.  But if you can prove that the other party was partly at-fault, you can hold them accountable for your injuries or loss, subject to your damages being reduced by the percentage of fault that is attributed to you.  For example, lets say that you have suffered financial damages of $200,000, including medical bills and a monetary figure determined to compensate you for your pain and suffering.  Also, lets say that the Court determines that you were 50% at-fault and the other party was 50% at-fault.  In that case, you will be entitled to recover financial damages in the amount of $100,000 (50% of $200,000). 

California follows a pure comparative fault rule.  This means that you can recover financial damages as long as the other person was at least partially at fault in causing the accident or your personal injuries.   You can recover damages even if you were mostly at-fault.  For example, lets say you have $200,000 in damages and you were 90% at-fault.  Your damages would be reduced by 90% and you would be entitled to $20,000, even though you were 90% at-fault for causing your own injuries.  The other party, who was 10% at-fault, would be responsible for 10% of your damages, hence the reason you would be entitled to recovery $20,000.

Some states other than California follow a different rule, in which if you were more than 50% percent at-fault for causing your injuries you cannot sue and recover damages against the other person who was partly at-fault.  If you live in a state other than California and you were partly at-fault for your own injuries, your personal injury attorney can explain the rules of your state and determine whether you have a right to bring a claim for your injuries or loss.

The amount of your medical bills is a significant factor in any personal injury case. The higher the dollar amount of the total bills, the more resistance an insurance company may be to paying the full amount of the bills. In such cases, it will be critical to retain an expert personal injury lawyer who knows how insurance company’s work and will be able to give you the best chance to get all of your bills paid.

Another important aspect of medical bills in a personal injury case is the relation of treatment billing statements to the extent and severity of your injury. Generally, the larger the total amount of the bills for treatment you have received, the more severe your injury would be expected to be viewed by an insurance company, or judge or jury, when you are seeking compensation for your pain and suffering, lost wages, loss of future earning capacity, and other financial damages. For this reason, serious injury cases, such as brain injury cases, can encounter the greatest amount of resistance from insurance companies and culpable parties and require the most dedicated San Diego brain injury lawyer in order to obtain a successful result.

So when your medical bills are substantial, an insurance company could have two motivations for refusing to pay the full amount of the bills. First, acknowledging and paying all of the bills could be tantamount to acknowledgment that you injury is very severe. Second, acknowledging and paying all of the bills requires a significant capital expenditure (payment of money) by the insurance company.

A San Diego injury lawyer at Injury Law Group will know when an insurance company is acting in bad faith and denying your medical bills and will be able to file a lawsuit forcing the insurance company to act in good faith and pay all of the bills incurred in connection with reasonable and necessary treatment that you have received. In many cases, the mere threat of such legal action is often sufficient to persuade most insurance companies to act in good faith and pay your treatment bills that were necessitated as a result of the negligence of their insurer and without needing to resort to legal action.

San Diego Injury Law Blog

The Injury Law Group blog features commentary, by an experienced California injury attorney, on important and interesting issues in personal injury law that are encountered by our clients during the accident claim process.  Whether you have been in a car accident, been a victim of a dog bite attack, or been involved in any other type of accident caused by the carelessness or negligence of others, the claims process is generally the same and similar legal issues arise in all types of personal injury cases.  The aim of our blog is to provide a wealth of information and useful examples so that, hopefully, you may find answers to your specific issues or questions.  Of course, we also hope that you will enjoy reading our blog.

Issues

We find the inspiration for our various blog topics mainly from issues of concern expressed by our clients.  Many of our blog posts are written in the form of an answer to a question asked by our clients concerning personal injury law or how the claim process works.  Our goal is to anticipate the questions you may have and provide you with detailed and concise answers that will hopefully help you better understand the legal process. Our blog posts include many useful examples, often in the form of an attorney response to a specific client question, that can help you understand the relevant law and see how it works in a real world context.

Focus

The great majority of our blog topics are focused on San Diego injury law, though some of our blog posts will discuss issues involving the more broad category of general personal injury legal issues.  Where pertinent, reference will be made to San Diego law versus more general personal injury issues. In most cases, San Diego cases are governed exclusively by California law. In some cases, Federal law may also be applicable. If an accident occurred in another state, then the laws of that other state will likely apply.  This blog does not cover the laws of other states; it exclusively covers California law or Federal law where applicable.

Questions

If you or a loved one has been involved in an accident, you have questions about the legal process, or you have a suggestion for a blog topic to be addressed by an experienced lawyer, please contact our office.  Our experienced attorneys are here to help you and answer your questions.