Personal Injury Dos & Don’ts
 

The Dos

Do seek medical attention before doing anything else.

Do summon the police, in appropriate cases.

Do cooperate with all law enforcement and emergency personnel who respond to the scene.

Do get the license plate numbers of all other vehicles involved in car accidents and the drivers’ names, addresses, telephone numbers, and insurance information.

Do get the name and address of the animal’s owner and any license information if you were injured by an animal bite or attack.

Do write down the names, addresses, and phone numbers of all potential witnesses to an accident.

Do contact your health, homeowner’s, and/or automobile insurance companies, as appropriate.

Do take photographs of all of the following, as applicable, as soon as possible after the accident:

  • The scene of the accident, from all angles.
  • The surrounding area.
  • The product or animal that caused your injuries.
  • Your injuries.
  • Any property damage.
Do contact your attorney.

The Don’ts

Don’t move your vehicle after an automobile accident unless necessary for safety or required by law.

Don’t subject yourself to further injury by standing or waiting in an area of traffic or other safety hazards.

Don’t leave the scene of an accident until the police tell you it is okay to do so.

Don’t throw away any potential evidence in the case, such as defective products, or torn or blood-stained clothing.

Don’t remain in a burning building while calling for help. Leave the area of danger first, and then immediately call from a safe place.

Don’t engage in discussions as to fault with anyone, and make sure you don’t apologize for anything-it can be considered evidence that you were legally at fault.

Don’t agree to settlement terms without contacting your attorney.

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What must a plaintiff prove to recover for an assault or battery?
 

The terms assault and battery are often erroneously used interchangeably. However, they are not the same things.

An assault can be defined as the threat to use unlawful force to inflict bodily injury upon another. The threat, which must be believed to be imminent, must cause reasonable apprehension in the plaintiff. Therefore, where the defendant has threatened some use of force, creating an apprehension in the plaintiff, an assault has occurred.

The focus, for the purpose of determining whether a particular act is an assault, must be upon the reasonableness of the plaintiff’s reaction.If the defendant threatens to use force against the plaintiff, but clearly states that the use of force will not be imminent, and will instead occur at some point in the future, then the plaintiff is unlikely to prevail on a claim of assault.

If the threat is imminent, and the defendant appears capable and intent on carrying it out, the plaintiff will likely succeed in proving an assault occurred. For example, a plaintiff may have difficulty proving an assault in cases where an individual such as a former spouse threatens him or her over the phone and thus is not present and capable of immediately carrying out the threat.

Battery is the intentional and unpermitted contact with another. A battery, for practical purposes, is the end product of an assault. A plaintiff in a battery claim does not need to prove an actual injury, as long as the plaintiff proves unlawful and unpermitted contact with his or her person or property. For example, plaintiffs have successfully proven a battery where the defendant grabbed onto the plaintiff’s coat. In addition, it is not necessary for the contact to be with an object in the possession of the plaintiff or the plaintiff’s body. An unpermitted contact with property of the plaintiff, located within the plaintiff’s proximity, may also constitute a battery.

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If a dog bites a person, is the owner liable for doctor’s bills?
 

In general, the answer to this question is yes. An owner of a dog, or any animal for that matter, may be held liable for the injuries that animal causes to others.

However, the ease with which a plaintiff can win a “dog-bite” lawsuit differs from jurisdiction to jurisdiction depending on the legal theory of recovery available in the plaintiff’s location. Some jurisdictions require the plaintiff to show that the animal owner knew, or should have known, that the animal was inclined to attack or bite. In other jurisdictions, the plaintiff may only need to show negligence on the part of the owner in order to recover money for his injuries.

If a wild animal, such as a lion, bear or monkey, injures the plaintiff, the animal’s owner may be held accountable under a theory of strict liability for plaintiff’s injuries regardless of the plaintiff’s conduct.

Some states have “dog-bite” statutes designed to address these very matters. Additionally, some municipalities may also have their own statutes also address the responsibility of pet owners to answer for the actions of their pets.If the plaintiff is an adult, the owner of an animal may offer as a defense to the plaintiff’s claim that the injured party provoked the animal.

Where the plaintiff has been given clear warning that an animal should not be approached, petted or talked to, and still proceeds with that action, the owner may be able to avoid responsibility if the animal thereafter attacks the plaintiff.

This defense is not available, however, if the plaintiff is a child.Once the plaintiff has established that the animal owner is liable for his injuries, the plaintiff must also establish the amount of his or her damages. The plaintiff should introduce evidence, such as doctor and hospital bills, of how much it has cost to treat the injury. In addition, the plaintiff may be able to recover lost wages if the injury kept the plaintiff out of work. The plaintiff is entitled to compensation for any permanent disability caused by the injury, as well as compensation for pain and suffering.

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What does a person have to prove to win a slander or libel claim?
 

Defamation is term that includes both slander and libel. Generally, slander occurs when the reputation or good name of someone is damaged as a result of false statements that are orally made.

Libel, on the other hand, occurs when false statements regarding another are put in writing.Whether a particular statement, oral or written, constitutes defamation in the nature of slander or libel will depend upon the particular circumstances in question and the identity of the parties.

To prevail in a defamation lawsuit, a plaintiff must prove that the defendant made a false and defamatory statement about the plaintiff that was communicated to a third party. Thus a false and objectionable statement sent in an e-mail to the plaintiff’s co-worker may be libelous. The plaintiff can usually succeed by showing the communication was either intentional or at least negligent.

Finally, it is also possible for the plaintiff to bring a libel suit where the plaintiff himself repeats the alleged defamatory statement. This is called self-publication. This can occur, for example, when an individual applies for a job and has to tell the prospective employer about something the previous employer said that was false.

Before beginning a libel or slander lawsuit, the plaintiff must determine whether or not the objectionable statement is true. No matter how damaging, insensitive, rude or inappropriate a statement may be, the plaintiff will lose if the statement is true.The “public” plaintiff has additional hurdles to overcome to recover for libel or slander. An example of a public figure is a politician. Along with establishing all of the regular elements of the tort, a plaintiff who is a public figure must also show that the defendant knew the false statement was false, or at least acted with reckless disregard as to its truthfulness.Newspapers may escape liability for libel when they merely report false statements as long as the paper had no particular reason to doubt the statement at the time it was printed.

Finally, the plaintiff often has to prove economic harm in order to recover on a defamation suit. Therefore, the plaintiff may need to be able to demonstrate a loss of business as a result of the defamation in order to establish a right to the recovery of money. However, some types of statements are so damaging that the plaintiff does not have to prove any economic loss. These statements tend to be those that accuse the plaintiff of sexual impropriety or criminal conduct.

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Does the average member of the public have any privacy rights?
 

Yes. The average member of the public is entitled to privacy protections, although the strength of those protections will vary depending upon the particular factual circumstances.Generally, there are four different actions that an injured plaintiff can allege to recover for an unlawful invasion of his privacy.

The first concerns the unlawful appropriation of another’s image. The plaintiff could make this claim, for example, if the defendant, an owner of a car dealership, uses plaintiff’s picture in a commercial or advertisement without permission.

The second type of wrongful invasion of privacy is in the nature of intrusion. If the plaintiff can prove that the defendant intruded into his or her solitude, seclusion, or private life in a manner that would be considered highly offensive to a reasonable person, the plaintiff is entitled to recover damages from the defendant. The issue of what actions are considered highly offensive depends greatly upon the factual circumstances under examination.

The third type of a privacy claim is the public disclosure of private facts. This cause of action requires that facts having no link to a legitimate public concern be disseminated by the defendant resulting in embarrassment, humiliation, or offense to the plaintiff. Whether the public has a legitimate concern in otherwise private facts about the plaintiff is always dependent upon the particular circumstances. For example, the public may have a legitimate interest in knowing that a local surgeon has the AIDS virus, which is an otherwise private matter, due to the potential health risks involved with that condition. In comparison, however, the public may not have a valid interest in knowing the HIV status of the local cabdriver, as there is no threat to the public health or safety in that situation.

A fourth type of privacy right is the right to be free from being placed in a false light in the public eye. This cause of action is very similar to a defamation action. In short, the plaintiff alleges that a communication about the plaintiff was made by defendant, it is untrue, and it was made to the public. The main difference between this cause of action and defamation is that for the invasion of privacy tort, the communication need not be defamatory, it need only be false and highly offensive to a reasonable person.

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Can a person recover damages for injuries sustained on someone else’s property?
 

An owner of property has a duty to protect members of the public from injury that may occur upon the property. The injured person may be able to recover money for those injuries if he or she can prove that the property owner failed to meet that duty. The hurdle plaintiffs face is that the nature and extent of the property owner’s duty will vary depending upon the facts of the situation and the jurisdiction in question.

Some states focus upon, solely, the status of the injured visitor to the property. These states divide the potential status into three separate categories: invitee, licensee, and trespasser. An invitee is someone who has been invited onto the land because that person will confer some advantage to the property owner, such as a store patron. An owner of property is required to exercise reasonable care for the safety of the invitee.

A licensee is someone who enters upon the land for his or her own purpose, and is present at the consent, but not the invitation, of the owner. For example, a door-to-door salesman who enters the property and stays to chat with the owner about the product that he is selling is a licensee. The owner’s duty to a licensee is only to warn of hidden dangers. For example, if the owner knew the front step was rotten and did not warn the salesman, the salesman may be able to recover if he thereafter falls through the step and injures himself.

Finally, a trespasser is an individual who enters onto the property without the knowledge or consent of the owner and who remains there without any right or permission. Trespassers have difficulty suing property owners because property owners’ duty towards trespassers is not to place traps and hazards on their property. In some cases, the owner must also warn trespassers of the hazards if they are unlikely to be discovered by the trespasser and could cause serious injury or death.

Other states focus upon the condition of the property and the activities of both the visitor and owner, rather than considering only the status of the visitor. In these states, a uniform standard that requires the owner of the property to exercise reasonable care to ensure the safety of invitees and licensees is generally applied. The plaintiff must prove that the duty of care has not been met through an examination of the circumstances surrounding the entry on the property, the use to which the property is put, the foreseeability of the plaintiff’s injury, and the reasonableness of placing a warning or repairing the condition.

Obviously, whether reasonable care has been rendered depends greatly upon the particular circumstances.The property owner’s duty of care toward children is greater than the duty owed to adults. Even if the children are trespassers or engage in dangerous behavior, the property owner must still take precautions to prevent foreseeable harm to children. The classic example of a property owner’s greater duty of care to children arises in the context of backyard swimming pools. Owners must fence, gate, and lock their pools in a manner that keeps children out and if they fail to do so, they will be found liable for injuries to children, even if the children were trespassers that were warned to stay off the property.

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What remedies does a railroad worker, who is injured while working, have?
 

Most individuals who are injured at work are prohibited from filing ordinary personal injury lawsuits against their employers. Instead, injured workers are generally required to file a claim under the state’s workers compensation procedure. An injured railroad worker must bring a claim for benefits under the Federal Employer’s Liability Act (FELA) for compensation for his injuries. FELA is similar to many state workers’ compensation systems with the exception that a railroad employee must be able to prove some level of employer negligence in order to make a recovery.

In comparison, most state systems are based upon no-fault theories of recovery where neither the negligence of the employer or the employee is examined. In practice, it is generally not difficult for an injured railroad employee to prove that the employer was, at least to some degree, negligent.Laws, rules, and regulations require a railroad to furnish a reasonably safe workplace for the benefit and protection of its employees. In keeping with this requirement, a railroad has a duty to inspect and discover defects that may result in injury. In some circumstances, this may include the duty to uncover defects that should be obvious to a railroad employee. A railroad also has a duty to warn its employees of any hazardous or unsafe conditions of which it is aware, or should be aware.A railroad is also required to take other steps to ensure the safety of its workers, including providing adequate training and supervision, appropriate tools and safe equipment, and enforcing only reasonable work quotas. The FELA claimant can usually show that at least one of the required regulations has not been met, thereby establishing the employer’s negligence.

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What is a slip and fall action?
 

A slip and fall action is a type of personal injury lawsuit filed by a plaintiff who has been injured by a slip and fall, usually on the defendant’s property. Examples of very common slip and fall plaintiffs include the grocery store patron who slips on a spill or a piece of food laying on the floor, and falls, causing injury to himself; or a hotel guest who slips in the shower and injures her back in the process.The plaintiff in slip and fall cases must usually show that the owner of the property had notice or knowledge of the condition, and failed to clean it up and rectify it within a reasonable amount of time.

If the plaintiff slipped on a grape that had been lying on the floor for two hours, and the manager of the store had walked past it and inspected it five times before asking someone to clean it up, liability is likely.If the plaintiff has knowingly encountered a hazard, then he or she may have trouble holding the defendant liable. For example, if a hotel guest squirts baby oil onto the floor of the shower; steps into the shower and attempts to do the jitterbug; and then falls and breaks an ankle, liability on the part of the hotel is highly questionable.

However, if the cleaning staff in the hotel repeatedly tells management that the non-skid treads in the bathtub for room 212 are missing and the hotel fails to replace them, the hotel will probably be liable for damages to a guest who is injured.

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Learn More: Plaintiff’s Personal Injury Law
 

Personal injury actions require, by their very nature, that someone be injured. The requisite injury can either by physical or, in some cases, emotional. The general goal of personal injury actions is to place the blame for the injury on the party who caused it and to require them to compensate the injured for the losses sustained.Not every injured plaintiff is entitled to recover damages for the injury he or she sustains.

Besides an injury, the plaintiff must establish, through evidence, that the defendant is legally liable for his or her injuries. This requires proof of causation both in terms of actual, factual causation and proximate, or legal causation. Whether legal causation is established depends on the facts and circumstances of the particular matter in question. The defendant can be held liable as a result of either the actions that are taken, or the actions that are not taken.

Some personal injury actions revolve around legal causation derived from a concept of intentional conduct, whereby it is generally held that if one intentionally harms another, or knows that the conduct which is engaged in causes a substantial likelihood that harm will result, liability for the resulting harm will in fact attach. Other personal injury actions have as their legal causation a looser concept of fault called negligence.

Under a negligence theory, in comparison, one is liable for the results of actions, or inaction, where an ordinary person in the same position should have foreseen that the conduct would create an unreasonable risk of harm to others. Still other types of personal injury actions are based on strict liability, a no-fault system where liability may attach regardless of the fault of the various parties, including the plaintiff.

In some situations, the defendant’s conduct, while questionable, does not rise to a level that entitles the plaintiff to a recovery. For example, if a plaintiff knowingly and willfully chooses to encounter a known hazard, the law holds that he or she has “assumed the risk of injury” and therefore the defendant is not liable. This theory applies for instance in a case where the plaintiff walks on an obvious build up of snow and ice caused by the defendant property owner’s failure to shovel his sidewalk, falls and breaks her hip, and is unable to recover for her injuries because she knew of the hazardous condition and willingly chose to encounter it.

Plaintiffs are denied recovery in other cases if their subjective belief about a situation does not match an objective “reasonable person” standard. For instance, where the defendant approaches the plaintiff and states “I might poke you in the eye if you wear that red sweater again,” it is likely that no actionable assault occurred due to the fact that there was no immediate threat of harm that caused reasonable apprehension on the part of the plaintiff.Personal injury law can involve many different types of claims, theories, and principles. Some of the more common, or interesting, types of personal injury actions include:

Animal bites can result in the animal owner’s liability to the person who is bitten or who is injured while trying to avoid a bite.

Assault and battery are two intentional torts that involve improper contact with another, without permission or consent, or the threat of such contact.

Aviation accidents quite often result in either serious injury or death. When these accidents occur, serious questions regarding the liability of the airline, its employees, or the government may arise.

Defamation and privacy are two separate causes of action that concern the rights of individuals to have their names and reputations protected, and also to have their privacy preserved.

Motor vehicle accidents raise numerous questions as to the liability of one participant to another and also raise interesting questions regarding who should be responsible for covering the losses.

Premises liability concerns the responsibilities of owners and possessors of property to safeguard others from dangerous conditions or hazards on the property and to prevent others from being injured while on the property.

Property damage causes of action concern the rights of owners or possessors of property to protect their property from damage, theft or intrusion.

Railroad accidents may result in personal injury or death and subject the railroad to liability.

Slip and fall cases are very common causes of action and relate closely to the duty of an owner or possessor of land to maintain the property in a safe manner for the benefit of others lawfully entering upon the land.

Wrongful death actions may be brought by the dependents or beneficiaries of a deceased individual against the party whose action or inaction was causally related to the death.

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What is negligence?
 

Negligence is any careless behavior that causes, or contributes to, an accident. For most types of accidents, a person must be negligent in order to be held legally responsible for another person’s injuries.A person is considered negligent if he or she had a duty to act carefully and failed to do so. (Generally, we all have an obligation to act with ordinary and reasonable care in any given situation — that is, in a manner that will not foreseeably injure those around us.)

For example, a person would be negligent if she drove at night wearing sunglasses, because any reasonable driver would know that doing so would increase the chances of causing a traffic accident.If a person behaves negligently and that behavior causes you harm, you can most likely recover compensation for your injuries.

Copyright 2002 Nolo

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Can I get compensation for my injuries if an accident might have been partly my fault?
 

Even if you might have partly caused an accident yourself, you can still receive compensation from anyone else who was careless and partly caused the accident. The amount of another person’s responsibility is determined by comparing his or her carelessness with your own. For example, if you were 25% at fault and the other person was 75% at fault, the other person must pay — through the insurance company — 75% of the fair compensation for your injuries.

This rule is called “comparative negligence.”A few states bar you from compensation if your own carelessness substantially contributed to the accident. (This is called “contributory negligence.”) But in practice, the question of whether your carelessness actually contributed to the accident is a point to negotiate with the insurance adjuster.

There is no formula for assigning a percentage to your carelessness — or that of the other person. During claim negotiations, you will come up with one number; the adjuster may come up with another and explain why you bear greater responsibility for the accident. The different percentages at which you each arrive then go into the negotiating hopper with all the other factors that determine how much your claim is worth.

Copyright 2002 Nolo

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Can I get compensation for my accident injuries if my physical limitations made the accident more likely or made my injuries worse?
 

What if you have a bad knee, which makes one leg a bit unsteady? Or if your eyesight, even with glasses, is not very strong? If you fall on a broken stair, are you still entitled to compensation even though someone with stronger legs or better eyesight might not have fallen?Absolutely.

All people, regardless of physical ability, have a legal right to make their way through the world without unnecessary danger. Owners and occupants of property must not put in unnecessary danger any person who might reasonably be expected to be on the property. The same goes for drivers and everyone else — no one may create unnecessary danger for anyone whose path they might cross.

Copyright 2002 Nolo

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Will my health insurance coverage or paid sick leave from work limit my compensation for an accident?
 
Whether you paid for medical care out of your own pocket or your health insurance covered it is none of a claims adjuster’s business. The same goes for whether your lost time at work was covered by sick leave or vacation pay. In fact, it is improper for an adjuster even to ask about such payments. You paid for your health insurance and earned your sick leave or vacation pay; now the insurance for the person who caused the accident has to pay.Your own health insurance, however, may require that, out of your settlement, you reimburse it for some or all of the amounts it has paid to treat your injuries.

Copyright 2005 Nolo

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Are all on-the-job injuries covered by workers’ compensation?
 
Most are. The workers’ compensation system is designed to provide benefits to injured workers, even if an injury is caused by the employer’s or employee’s carelessness. But there are some limits. Generally, injuries that happen because an employee is intoxicated or using illegal drugs are not covered by workers’ compensation. Coverage may also be denied in situations involving:

  • self-inflicted injuries (including those caused by a person who starts a fight)
  • injuries suffered while a worker was committing a serious crime
  • injuries suffered while an employee was not on the job, and
  • injuries suffered when an employee’s conduct violated company policy.

Copyright 2005 Nolo

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Can I be treated by my own doctor and, if not, can I trust a doctor provided by my employer?
 

In some states, you have a right to see your own doctor if you make this request in writing before the injury occurs. More typically, however, injured workers are referred to a doctor recruited and paid for by their employers.Your doctor’s report will have a big impact upon the benefits you receive.

While it’s crucial that you tell the doctor the truth about both your injury and your medical history (your benefits may be denied based on fraud if you don’t), be sure to clearly identify all possible job-related medical problems and sources of pain. In short, this is no time to downplay or gloss over the presence of a pain.Keep in mind that a doctor paid for by your employer’s insurance company is not your friend.

The desire to get future business may motivate a doctor to minimize the seriousness of your injury or to identify it as a pre-existing condition. For example, if you injure your back and the doctor asks you if you have ever had back problems before, it would be unwise to treat the doctor to a 20-year history of every time you suffered a minor pain or ache. Just say “no” unless you really have suffered a significant previous injury or chronic condition.

Copyright 2005 Nolo

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If I am initially treated by an insurance company doctor, do I have a right to see my own doctor at some point?
 

State workers’ compensation systems establish technical and often tricky rules in this area. Often, you have the right to ask for another doctor at the insurance company’s expense if you clearly state you don’t like the one the insurance company provides, although there is sometimes a waiting period before you can get a second doctor.

Also, if your injury is serious, you usually have the right to a second opinion. And in some states, after you are treated by an insurance company’s doctor for a certain period (90 days is typical), you may have the automatic right to transfer your treatment to your own doctor or health plan with the cost being paid for by the workers’ comp insurance company.

Because the insurance company is footing the bill, don’t hesitate to go to a doctor who specializes in your injury or illness — even if the cost is great.To understand your rights, get a copy of your state’s rules or, if necessary, research your state workers’ compensation laws and regulations in the law library.

Copyright 2005 Nolo

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What to Expect During Your Initial Attorney Interview After An Injury
 

During the initial interview, your lawyer will, of course, want to hear about what happened to you and collect a variety of information from you. The length of the initial interview can vary a lot, depending on your injuries.

In a simple negligence case it probably won’t take too long, especially if you have prepared for the meeting, whereas a complex case or a case involving serious injuries could take much longer.As you tell the lawyer about your accident, he or she may ask questions about it. Frequently, lawyers wait until you have told them everything before asking questions.

Some of the questions may be difficult to hear, let alone answer. Be brave.

Your lawyer needs to know the answers to help you find the best solution for your case. The lawyer will collect a variety of information from you that relates to the accident, your medical treatment, who else was involved in the accident, potential witnesses and the like. Here’s the sort of thing you can expect:

  • The lawyer may ask you to sign medical authorizations and releases so he or she can obtain your medical records.
  • The lawyer will want to know about all your insurance coverage.
  • The lawyer will ask if you have talked to any insurance adjustors and if so, what you have said and whether you provided a recorded or written statement about the accident.
  • The lawyer will ask you if anyone else has interviewed you about the accident or your injuries, and if so, whom you talked to and what you said.
  • The lawyer may ask you, if it’s not evident by looking at you, about the current status of your injuries, whether you are in pain, what your prognosis is, and so forth.
  • The lawyer may advise you to see your doctor regularly if you have any physical problems or complaints. If you don’t see your doctor, the defendant may argue that you aren’t seriously hurt as no visits tends to indicate that there are no problems.
  • The lawyer may tell you that your case will be considered and that you will hear later if he or she will take your case. This is a common practice in injury cases, so don’t read anything into it.
  • The lawyer may decline to take your case. He or she may do this for many reasons, such as his or her current case load, knowledge of his or her capabilities, economic reasons, or family responsibilities. You also may learn that in the lawyer’s opinion, you might not have much of a case. This is valuable information, and it is better to know early. By all means seek a second opinion.
  • The lawyer may refer you to another lawyer. This happens when the lawyer cannot take your case or thinks the other lawyer can do a better job for you.
  • The lawyer may ask you to sign a retainer agreement or employment contract. Read the contract carefully and ask questions before you sign it. You should be able to take the contract home to study it before you sign.
  • The lawyer will tell you what the next steps are. There may be a factual investigation before a lawsuit is filed. The lawyer may be able to give you a rough estimate of how long it will take to litigate the case.
  • The lawyer will tell you not to talk about the case with others, and to refer questions to the lawyer. This is very important advice. Insurance companies are known to send investigators out to talk to your neighbors, and who knows what they’ll say? Don’t let that make you paranoid, but let it be a persuasive reason not to talk to people about the case. Just as loose lips sink ships, stray comments can ruin your case in the courtroom.
  • The lawyer will probably give you an idea of how he or she intends to keep you informed of progress on your case. There is no single approach to this. Some lawyers provide periodic report letters; others call you on a periodic basis or when something happens; some ask you to call when you have questions.

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Consumer Fraud Acts
 

If a merchant or a service provider has cheated you, typical legal claims may not actually address the problem. There are limits to the force of contract and common-law fraud claims. Neither, for example, addresses the situation when a seller makes a misrepresentation without knowing it was false.

Many states, in response to this loophole, have enacted statutes creating causes of action for “consumer fraud.”The purpose of consumer fraud acts is to make sure that there is a remedy to persons injured by a fraud related to the sales and provision of goods and services. A claim under a consumer fraud act is different from, and is an additional remedy to, a typical breach of contract claim or common-law fraud claim. One example of a sale covered by a consumer fraud act is where an individual buys a car from a seller who represents it to be in good condition when in fact the car has severe mechanical problems.

Although consumer fraud acts were created to address common transactions like this, their scope has also expanded in many states to cover services as accounting and financial planning, legal services, and environmental consulting.It is easy for a plaintiff to plead a claim under a consumer fraud statute.

For example, under the Illinois Consumer Fraud and Deceptive Business Practices Act, a plaintiff must allege and prove only that the defendant engaged in (1) a deceptive act or practice (2) in the course of conduct involving trade or commerce (3) with the intent that the plaintiff rely on the deception. The act is, according to the statute, to be construed liberally, and it applies to any transaction, so long as it is in “trade” or “commerce.” “Trade and commerce” means “the advertising, offering for sale, sale, or distribution of any services and any real property, tangible or intangible, real, personal or mixed.”Multiple instances of fraud are not necessary for a consumer fraud act to apply-even one instance of fraud can trigger its protection.

Given these broad parameters, it is fairly simple to plead all the required elements of a claim. Consumer fraud acts can be especially useful to plaintiffs because both attorneys’ fees and punitive damages are often available.Some states require a showing of consumer injury, or danger to the public, under their consumer fraud acts. Some states, like Arizona, have acts that are far less broad than the Illinois example. Under some states’ acts, mere expressions of opinion are not actionable as fraud.

An attorney can advise you about any potential claims that you might have under your state’s consumer fraud act.

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What to Expect in Making an Insurance Claim
 

When you wind up making a claim on an insurance policy, an insurance claim can be a complicated process, and it can be full of unpleasant surprises and frustrating delays. Don’t forget, the insurer only makes money if it doesn’t have to pay out money.

Even with the most established companies, there is almost always going to be some resistance to paying your claim.Also, it behooves insurers to be prudent and deliberate. That means the schedule for processing your claim and the events that take place can be out of your hands.

Nonetheless, some things happen in the same order in most insurance claims, and you can at least get a general idea of what’s likely to happen.The following chronology gives a general idea of how an insurance claim proceeds. Your claim may be different because of differences between companies, kinds of insurance, and state laws. An attorney can help you understand exactly how your claim will fit with this chronology-remember, your attorney works for you, and should clearly explain every step of the process.

  • An insurance claim begins with a report of a covered incident to your insurance agent or insurer. Typically, this report will occur immediately after the incident, and it is to your benefit to report any claim as soon as possible.
  • The claim is reviewed by insurance company employees to determine whether there is coverage. This is usually done by very low level (or entry level) employees. You will be notified, usually by mail, of what they decide.
  • If you receive notice that your claim has been denied or that there is no coverage, you can try to work your way up the system until you get to someone who will treat your claim seriously. Some insurers are notorious for having a policy of denying claims on the first attempt, on the assumption that most people will be discouraged or intimidated from pursuing it. If you have a claim you feel was unfairly denied, an attorney can help you negotiate with the insurer. Sometimes, it only takes a letter from an attorney to make an insurer change its mind.
  • Some insurance policies provide for mediation or arbitration of coverage disputes. If your policy contains such a provision, you will present your side of the case to a neutral person who will decide whether or not you have coverage.
  • If you receive notice that your claim is accepted and that you are entitled to coverage, a number of things can happen. In health insurance and auto liability insurance, it is typical for the insurer to pay the health care provider or the person you hit, and inform you that they have done so. In life insurance policies, it is typical in uncontroversial cases for the insurer to pay the benefit by return check, although they will require proof of death. In homeowner’s or renter’s policy claims, the insurer will want proof of what was lost, and in some cases require that you replace what is lost and then seek reimbursement. In cases of fire insurance, you will have a long series of contacts with the insurer while they help you to reconstruct what you have lost.
  • In some cases, your insurer may defend you in a lawsuit. This can occur in automobile liability policies, homeowner’s liability policies, and other policies where the insurer only has to pay if you are shown to be liable to a third party. In that case, the insurer will usually provide you with an attorney. Sometimes, insurers will be willing to let you use your own attorney.
  • In some cases, your insurer pays you for your loss and then pursues whoever actually caused the loss, under the legal theory of “subrogation.” If your insurer pursues subrogation rights, you may have to participate in the case.
  • Once a lawsuit ends, your insurer will pay any amounts it is ordered to pay by the court. Although your insurer may appeal, you will typically be finished with the process at that point.

It’s hard to say how long all these steps will take in your case. The entire process can take from as little as hours, to as long as years. Generally speaking, the less money at stake, and the more basic the type of insurance, the faster the process will go.

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Understanding Automobile Insurance
 

Trying to understand all the terms used in relation to automobiles, particularly automobile insurance, can be a daunting task. In many cases, terms relating to your automobile insurance may be defined within the policy itself. In other cases, words may come up in conversation with your insurance agent, or after you have been involved in a car accident, which are not defined in the policy.

The following glossary of common terms related to automobile insurance may give you a better idea of what is being said. Be warned, however, your particular insurance policy may define these terms in a different manner, which may make a difference if you have to submit a claim.

Additional Insured. An individual or entity who is not specifically named as an insured within the policy itself, but for whom attachments, known as endorsements, to the policy provide a degree of protection. In some states, an additional insured can be treated differently from an additional named insured, who is an additional insured who is actually named within the policy itself and to whom all of the rights and responsibilities of the policy apply.

Bodily Injury Liability. Insurance coverage that applies when you are legally liable for injuring other people in an auto accident. Bodily injury liability provides payments to those injured individuals and pays your legal defense costs as well. Such coverage can be combined with property damage liability, as it often is, and be called “liability insurance.

Claim. The request that a policyholder makes to an insurance company to recover losses covered by an insurance policy.

Collision Insurance. Coverage under a policy that pays for damage to, or loss of, your own automobile from upset or collision with another object or vehicle. Collision insurance does not cover bodily or personal injury, and it may not cover other property damage liability arising out of the collision.

Comprehensive Insurance. Insurance coverage that reimburses you for damage to your own car from causes other than a collision, upset, or general wear and tear. Comprehensive insurance may provide coverage for hail, flood, theft, mischief, damage from animals, falling objects, explosions, earthquakes, and many other events.

Deductible. The amount of the loss that you must pay before the insurance company begins to pay under the policy. For example, if you have a $500 deductible and have been in an accident in which $3,500 in damage to your car occurred, you must pay the first $500 before the insurance company pays the remaining $3,000.

Drive-Other-Car Endorsement (DOC). Sometimes referred to only as an “other-car endorsement,” this addition to the policy allows coverage to be added that will protect individuals named in the endorsement when they are driving cars not owned by those individuals and not named within the policy.

First-Party Coverage. Compensation you receive under your own insurance policy as opposed to receiving payment from someone else’s insurance policy, such as the person who caused an accident. Examples of first-party coverage include collision insurance and comprehensive insurance, in which your own insurance company pays you for losses to your own car.

Liability Insurance. Insurance coverage that pays others who sustain bodily injury or experience property damage caused by you or someone else covered under your policy.

Loss. The root of an insurance claim. In order to have a claim, there must first be a loss, such as damage to a vehicle. Insurers may also refer to a loss as a payment made on behalf of an insured to cover such damage.

Motor Vehicle Record (MVR). The written record of a particular driver’s accidents and traffic violations. An MVR may be reviewed when an insurance agent is giving a quote for automobile insurance rates: the more accidents and violations you have in your MVR, the higher your premiums are likely to be.

No-Fault Protection. Coverage available in many states that pays you, or those people covered under your policy, for medical expenses or injuries that occur as the result of an accident, regardless of who was at fault in causing the accident.

Personal Injury Protection (PIP). That part of an insurance policy, in many cases a no-fault policy, which provides protection against personal injury and related losses, as opposed to damage to your vehicle, up to a specific per-person dollar amount. PIP may include benefits for medical expenses, loss of work income, and accidental death and funeral expenses.

Premium. The amount of money you pay, either monthly, quarterly, or yearly, to maintain your automobile insurance. If you fail to pay your premiums, your insurance policy can be cancelled.

Property Damage Liability. Insurance that protects you, and pays on your behalf, for automobile-related damage that you cause to another persons’ property. If offered jointly with bodily injury liability, as it often is, it may be called “liability insurance.”

UIM. Shorthand for “underinsured motorist,” or those fellow motorists whose automobile insurance maximum is insufficient to cover a specific loss. UIM pays you, or those people covered under your policy, for bodily injury losses if the other driver is liable and has coverage that does not fully compensate you for your losses. The maximum of a UIM recovery is your policy limit.

UM. Shorthand for “uninsured motorist,” or those motorists who do not have any automobile insurance. UM coverage protects insureds, up to the limit of their policies, against bodily injury losses caused by a negligent motorist who has not obtained insurance coverage.

Threshold. A term commonly used in conjunction with a modified no-fault plan. Most no-fault plans set a point at which the insured may bring a legal action to recover for losses such as pain and suffering. Before the threshold is reached, tort actions are not allowed. Typically the threshold will be reached if medical bills reach a certain expense level, or if disfigurement or death occurs.

VIN. Shorthand for “vehicle identification number.” Your VIN is also relevant to areas other than insurance, but may come up in the insurance field if there is a question as to the ownership of your car. A car’s VIN is a unique number assigned to the car. The VIN can be found, usually, engraved on a metal plate affixed to the dashboard that is visible through the windshield.

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Preventing Childhood Injuries
 
  • Accidental falls are a leading cause of injury-related emergency room visits. To reduce the chances of your child falling at home, make sure that you supervise your children’s play, do not keep furniture near windows, bar or securely latch all windows and screens, block all stairways from younger children, keep stairs and halls free of toys and other items, and don’t use baby walkers.
  • Not all falls occur at home, however. In order to minimize the risk of injury fromfalls away from home, visit only playgrounds with safe surfaces like wood chips, pebbles, or rubberized pathways and closely monitor your child’s play; use safety restraints in shopping carts and stay close to the cart at all times; hold your child’s hand on stairways and escalators; make wearing helmets, pads, guards, and other protective gear mandatory when biking, in-line skating, and engaging in other activities likely to result in falls; and select age-appropriate activities for your children.
  • For children under age fifteen, automobile accidents are the leading cause of unintentional injury-related death. To minimize the risk of death and injury from motor vehicle crashes, infants should always ride in rear-facing car seats, older babies and toddlers should be restrained in a forward-facing car seat, older preschoolers and younger school-age children should be in booster seats with adequate restraint systems, and older children should be restrained by the vehicle’s safety belts. In addition, children should never ride in the front seat, especially in cars with air bags.
  • Although most parents are attentive when their children are swimming in lakes and pools, accidental drownings can occur in even a few inches of water in seemingly harmless containers, like cleaning buckets. To avoid the risk of drowning, supervise your children whenever they are in or near the water, don’t leave your children alone in the bathtub, keep gates around back-yard pools locked, empty containers like buckets and wading pools when not in use, keep bathroom doors closed and use child-proof door knobs (a toddler can even drown in the toilet), and make sure your children (as well as you) wear life jackets when boating and engaging in other water sports.
  • Poisoning is another common cause of childhood injury. To avoid the risk of injury from poisoning, keep all medicines, cleaning supplies, and chemicals out of children’s reach; use child-proof door knobs and cabinet latches as necessary; avoid transferring potentially harmful substances to different receptacles, like soda bottles or food-storage containers, which could confuse a child and encourage ingestion; make sure that none of the plants in your home or garden are poisonous; don’t call medicine “candy,” which could encourage overdosing; post the telephone number for the local poison control center and other emergency numbers by every phone in the house; and keep syrup of ipecac handy to induce vomiting in case of accidental poisoning, but don’t administer it without first checking with your local poison control center.
  • Children have much more sensitive skin than adults and can easily get burned. Just three seconds’ contact with tap water of 140*F can cause third-degree burns to a young child. In order to avoid burn injuries, set the thermostat on your home water heater to less than 120* Fahrenheit, and test the temperature of bath water on your wrist or elbow before placing your child in the bath. Don’t attempt to carry a child and a hot liquid like a cup of coffee at the same time; use the back burners on your stove and keep all pot handles pointed away from the front edge of the stove; keep all lighters and matches out of children’s reach; install smoke detectors in your home and change the batteries regularly; and don’t allow children to play with dangerous objects like Fourth of July sparklers.
  • Children under three years old are especially vulnerable to choking on small objects. One way to determine whether an object is capable of causing a child to choke is to see if it fits through an empty toilet paper tube. If it does, keep it out of a young child’s reach. In addition, you can minimize the risk of childhood choking accidents. Do not feed toddlers round foods like grapes, nuts, hotdogs, and popcorn; store small items like coins, pins, jewelry, buttons, and beads out of the reach of small children; verify that toys have no removable small parts, like teddy bear eyes; don’t allow children to wear clothing with drawstrings, which can cause strangulation; keep all window-treatment cords out of children’s reach; and, in case your child does choke despite your best efforts, keep your CPR and Heimlich maneuver skills up to date.
  • Guns can be found in about half of all American homes. Whether you own a gun or not, it is imperative that you teach your kids about gun safety. If you do own a firearm, in order to prevent accidental shootings you must store all guns, unloaded, in a locked compartment; employ trigger locks and other safety devices; store ammunition in a separate, locked compartment; and keep the keys in a place that only adults know about and that cannot be discovered by children.
  • Even when all of these safety precautions are followed, accidents can still happen. If your child is injured, your first step must be to seek medical attention or call 911.
  • If your child was injured as a result of someone else’s negligence or intentional act, you may be entitled to recover money damages. A personal injury attorney can review the facts of your case to determine whether another individual or company should be held accountable and made to pay for your and your child’s losses. If, for example, another driver’s carelessness resulted in an accident that injured your child, or a defective toy caused your child to choke, you may be able to sue the responsible party. Seek the advice and counsel of an experienced personal injury lawyer to ensure that you and your child get the legal representation you deserve.

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What to do if You are in an Automobile Accident
 
Would you know what to do if you drove your car into another car? A pedestrian? When a car accident happens, injuries may be severe and emotions may be high. However, there are important things that must be taken care of both at the scene of any accident and following an accident. The following is a list of things that should be done, if at all possible, when any accident occurs.

  • The cardinal rule for all car accidents is that you should never leave the scene without stopping. If you leave the scene of an accident, particularly where someone has sustained injuries or was killed, you can face serious criminal penalties for being a “hit-and-run” driver.Exception: If you are hit by another car in a deserted area, use caution in stopping and getting out of your vehicle. Unfortunately, there have been reported incidents where a person exited their vehicle in a deserted or unsafe area after being bumped by another car only to be robbed or killed. Instead of getting out of the car if you find yourself in that situation, drive to the nearest police station to report the accident. If it turns out that you were being over-cautious and the other driver had no ill intentions, you may be embarrassed, but you will also be safe.
  • If you are in a safe area, move your car out of the flow of traffic, if possible, to the shoulder. Take care in exiting your car. Watch for traffic, other people, and broken glass or car parts.
  • If you are injured and are unable to exit your car, try not to panic. Help will soon be on the way.
  • First things first. Before making sure that your car isn’t totaled, check to make sure that everyone else involved in the accident is okay. Get medical attention for anyone who may need it.Warning: If a person is unconscious or complains of neck or back pain, it is best not to move them until qualified medical personnel arrive. In some situations, for example if an injured person is lying in a pool of gas that you fear may ignite at any time, you may have no choice but to move them. If you are in that type of situation, try to move them as steadily and slowly as possible while supporting their neck and back. The less movement, the better.
  • Call the police if the accident involves significant property damage, physical injury, or death. Ask that a police report be filed in those situations. Obtain the name and badge numbers of any police officers that arrive on the scene.
  • Talk to the drivers of any other vehicles involved in the accident. Get their names, phone numbers, addresses, drivers’ license numbers, license plate numbers, and basic insurance information. If there are passengers in any of the vehicles, obtain their names, telephone numbers, and addresses as well.Note: In talking to drivers of other vehicles, you should try to be cordial and cooperative in determining that everyone is okay and in exchanging basic information. However, do not apologize for anything at the scene. If you jump out of your car and blurt out, “I’m so sorry I ran that red light! Is everyone okay?” you may back yourself into a corner. Immediately after an accident, the scene is chaotic and it might not be evident who was at fault, or who was more at fault, in causing the accident. Moreover, in many states, fault is not determinative of which insurer will pay for any loss. Therefore, try to keep your conscience in check, at least until things get sorted out, so that you don’t admit guilt unintentionally or unnecessarily.
  • Talk to witnesses at the scene. Ask the witnesses what they saw. Get their names and telephone numbers or addresses, if possible. If residents of the area, or businesspeople, who work in the area, have come to the scene or are in the vicinity try to talk to them as well. Ask them, in particular, if they have ever witnessed other accidents in the same place.Note: If a witness is hesitant to talk to you, don’t beg or threaten them. Forcing information from someone will get you nowhere. Write down what they tell you and, if they agree, simply get their name and phone number so that you, your attorney, the insurance company, or the court can contact them again.
  • Inform your insurance company, as soon as possible, that you have been involved in an accident.
  • Cooperate with your insurance company and tell them the truth about the manner in which the accident occurred and the extent of your injuries. If the insurance company finds out that you have lied to them about anything, you can get into serious trouble, not the least of which will be the denial of any coverage for the accident.
  • Build support for your case when discussing the matter with your insurance company. Be able to explain to them the facts of the case in a clear manner. Obtain and review a copy of the police report, if any, so that you can point out to the insurance company who broke what traffic laws or who was at fault for the accident. Often, that information will be provided in the police report. Although the insurance company may already know the facts of your case, taking an active interest in making sure your rights are protected will force the insurance company to take you seriously.
  • Keep track of any doctors, physical therapists, chiropractors, or other medical professionals that you seek treatment from, and each medical provider that referred you to other medical providers. Having a written diary of this information will help you itemize your medical expenses and treatment to the insurance company or to the court.
  • Take photographs of any damage to your vehicle as soon as possible after the accident. Having photographic proof will help your insurance adjuster determine how much you should be compensated for the damages to your car, and may also assist your case in court, if needed.Note: If you have pictures of your car from before the accident, dig those out of your photo albums, too. These pictures will offer a great “compare and contrast” to show the true extent of the damage sustained in the accident.

Obtain a valuation for the damages to your car from your insurance company. If you are not satisfied with the manner in which your insurance company has valued your vehicle, do not give up. Get two estimates for the repair of your car on your own, or have two dealers provide a quote for the cost of replacing your vehicle if there was a total loss. Communicate your concerns and position with the adjuster, and be assertive. If you cannot agree on the value of your car, consider alternative dispute resolution, or consult an attorney.

  • Do not talk to anyone about the accident other than your attorney, your insurance company, and the police. Do not talk to a representative of another insurance company under any circumstances without the knowledge of your attorney or your insurance company. If representatives from other insurance companies should call you, be polite, but ask them to call your attorney or insurance company to arrange for an interview. Also, get the representative’s name and number, and tell your insurance company or attorney that someone seeking information about your accident contacted you.
  • Be careful if you are offered a settlement from an insurance company. Make sure that any physical injuries that may have sustained have been treated and that you have a doctor’s prognosis. Some injuries may not “manifest” themselves or reach their greatest level of discomfort or permanency until many days, weeks, or months after the accident. Don’t settle a claim until you know that will be compensated for all of your injuries, and consult an attorney before signing any documents pertaining to settlement.
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