Personal Injury

Bringing a Claim for Injuries When the Accident Was Partly Your Fault

In order to prevail in a personal injury case, you must be able to prove that your injuries were directly caused by the negligent actions of another. If you can prove that your injuries were at least partly caused by another, you may be able to receive compensation for your medical expenses, physical and emotional pain and suffering, permanent physical impairment or disfigurement, lost income, decreased earning capacity, property damage, or other economic losses.

If you have been injured in an accident, you may be entitled to recover compensation from anyone else who partially caused the accident, even if the accident was partly your own fault. The legal theories of “contributory negligence” and “comparative negligence” apply in cases where the plaintiff in a lawsuit was partially responsible for his or her own injuries.

“Contributory negligence” means the injured person’s actions, at least to some extent caused his or her own injuries. For example, someone who ignores a “Caution: Wet Floor” sign and subsequently slips and falls may be deemed to have been careless and, thus, at fault for his or her injuries. As such, contributory negligence can prevent the injured person from recovering any compensation, even when his or her carelessness was minor as compared to the fault of the other party. In some states, accident victims are entitled to recover compensation only if they can prove that the other party’s fault was greater.

In some jurisdictions, the concept of contributory negligence has fallen out of favor and is no longer applied. Instead, it has been replaced with the concept of “comparative negligence.” Comparative negligence means that the fault for causing an accident is compared among all parties, typically broken down as a percentage of fault attributed to each party. When this occurs, the monetary recovery awarded to the injured plaintiff is reduced by his or her percentage of fault. For example, if you were injured in a car accident that was determined to be 25% your fault, your monetary recovery from the other driver’s insurance company would be limited to 75% of the amount of your damages from the accident, an amount equal to that driver’s percentage of fault for causing the accident. By applying the concept of comparative negligence, each party is held accountable only for his or her percentage of fault for causing the injuries.

You may be deemed to be partially at fault for your injuries if you have failed to act with reasonably prudent care under the circumstances of the accident, or if you voluntarily assume a portion of the risk by exposing yourself to danger, such as by failing to use the available restraints on an amusement park ride or ignoring a posted warning sign.

The total value of your claim is based on many factors, including how easily fault can be apportioned among the parties, the seriousness of your injuries, medical treatments received and insurance coverage limits. Once the claim’s total value is established and the percentages are applied, a final figure for the injured plaintiff’s compensation can be determined.

Should I Sue for My Injuries?

Whether you’ve been injured as result of a car accident, fall at the local market or a bite by a neighbor’s pit bull, you may be asking yourself, “Should I Sue?” Most people think they should, and that a sizable settlement payment will be forthcoming.

In our legal system, a negligent party is expected to pay for damages you incurred because of the accident or injury, such as medical costs, lost income, property damage, and pain and suffering. In certain cases, punitive damages may be awarded if a person’s conduct was malicious or intentional. Nevertheless, just because you have been injured does not necessarily mean that you should file a lawsuit, a decision which rests on multiple factors.

Such factors include the seriousness of your injury, the level of fault that rests with the negligent party, and your own liability for involvement in the accident or causing your own injury. One of the biggest considerations, however, is whether the wrongdoer has the financial means to pay any judgment that you may be awarded. If the defendant is insolvent, your judgment may prove to be worthless – but your attorney and other professionals involved in your case will expect to be paid.

Accordingly, insurance coverage is a significant consideration. Although the defendant may have few assets from which to collect a future judgment, there may be sufficient insurance coverage available to pay any eventual judgment. Note, however, that most insurance policies typically do not cover intentional torts.

An experienced personal injury attorney can help you review the various risks and benefits of pursuing a lawsuit, in light of your specific circumstances. Before deciding whether to undertake the time and expense of litigation, you must carefully weigh your involvement in any comparative or contributory negligence, what evidence will be necessary to prove your case and the amount of damages you should be awarded, and the availability of assets or insurance to secure payment of a future judgment.
 

The Pros and Cons of Settling a Case

If you have been injured by the negligent actions of another, you may be entitled to compensation for your medical expenses, physical and emotional pain and suffering, permanent physical impairment or disfigurement, lost income, decreased earning capacity, property damage, or other economic losses. Deciding whether to settle a personal injury lawsuit without taking the case to trial is a major decision demanding the full consideration of many factors.

Some plaintiffs wish to settle the matter quickly, while others want to let a judge or jury determine whether damages should be awarded and how much. There are advantages and disadvantages to each option; only you can decide what is best for your specific situation but an attorney can help you put the pros and cons of each option into perspective.

The vast majority of personal injury lawsuits never see a courtroom, evidence that the benefits of early settlement are compelling to a great number of injury victims. Settling a case is often more advantageous to the injured party, rather than taking the case to trial.If you have received a settlement offer from the defendant or the defendant’s insurance company, you should review the offer with your attorney as soon as possible.

Settlement agreements have many advantages. Settling your case is much quicker than taking your case to trial, which can take up to a year – or more, depending on the jurisdiction and the complexity of the case. You can receive the money, or at least a portion of it, immediately so you can pay off your medical bills and repair property damage. Your attorneys’ fees and other legal costs are greatly reduced by avoiding protracted discovery and the trial itself. Additionally, the emotional benefits are undeniable. You have the peace of mind of knowing exactly how much money you will receive, and you can get emotional closure right away so you can move on. Finally, settlement agreements can remain confidential, whereas court proceedings are public records.

On the other hand, there are tradeoffs. In exchange for the benefits stated above, you will typically have to accept a smaller monetary award than you might get if the case goes before a judge or jury.

Taking your case to trial, letting the court decide the outcome, also has its advantages and disadvantages. If you go to trial and win, you may feel a sense of emotional satisfaction having prevailed in the lawsuit. And, as noted above, you may be awarded a much higher amount than what was offered in the settlement negotiations.

However, there is never any guarantee that you will win your case at trial, or that the amount awarded will be more than what you could have settled the case for. The value of any settlement offer or potential court verdict must be weighed against the increased costs of dragging the case out for many more months before a trial can take place. In considering your options, an experienced personal injury lawyer can provide you with a realistic assessment of whether a settlement offer is fair, and the likelihood of winning a greater award at trial.

Have You Been Injured on the Job? What if Your Employer Has No Workers’ Compensation Insurance?

In most states, employers are required to carry workers’ compensation insurance to cover workplace injuries sustained by their employees. Workers’ compensation insurance is a “no fault” system which allows every employee to receive benefits for a job-related injury, regardless of who caused the accident or illness, though intentional, self-inflicted injuries may be excluded from workers' compensation benefits. The system balances the needs of workers, who are entitled to receive prompt medical treatment for their injuries, with the needs of employers who can conduct their business operations free from the fear of being sued by an injured employee. Workers’ compensation programs can provide claimants with medical benefits and, provided certain requirements are met, temporary compensation payments until the employee is able to return to work. In certain situations, claimants may also receive permanent benefits such as job retraining or supportive medical care.

But what happens if you get hurt and your employer doesn’t have the required workers’ compensation insurance?

Regardless of whether your employer participates in a workers’ compensation insurance program, it is important that you seek medical attention immediately, to ensure you receive proper treatment and to document your injuries. Typically, an injured worker's only legal option for recovering compensation from the employer is to file a workers’ compensation claim. There are a few exceptions, however, such as when an employer intentionally causes the workplace injury, or when an employer fails to carry the required workers’ compensation insurance.

If you are injured and your employer does not participate in a workers’ compensation insurance program, there may be coverage available to you through a government fund for injured workers whose employers do not have the mandated workers’ compensation insurance. If you find yourself in this situation, check with your state’s Labor Department to find out what programs may be available in your area, and to report your employer’s non-compliance with the workers’ compensation laws.

Injured employees whose employers do not carry valid workers’ compensation coverage also have the option of filing a civil lawsuit against the uninsured employer to recover compensation for their damages. Through the civil court system, uninsured employers may have to pay substantially more in damages to cover the injured employee’s losses including medical bills, future lost earnings, and pain and suffering. In most jurisdictions, workers' compensation insurance programs limit the injured employee’s recovery by disallowing claims for “pain and suffering” or punitive damages which would be allowed in a civil lawsuit. Civil cases also differ from claims made through no-fault workers’ compensation programs in that certain legal principles may apply, such as “contributory negligence,” which can limit an employee’s recovery based on percentage of fault.

In most jurisdictions, employers who fail to carry workers’ compensation insurance are not only liable to their injured workers, but also face penalties for violating the law.

What to do after you are involved in a car accident.

 Assume you are driving your car in New York and you are involved in an accident in which you have sustained injuries.  You have been taken to the hospital and you anticipate that treatment will cause you to miss several months of work.   Following are some things you should do.

 A policy of insurance that conforms with the law of New York automatically provides coverage for medical and hospital treatment, for lost wages and for other necessary expenses.  There is a minimum amount of coverage even in the least expensive policies but the amount of coverage may be greater if you have purchased additional coverage.  

All occupants of the car are entitled to benefits under the policy. 

 The accident must be reported to the insurance company as soon as possible.  Once the happening of the accident has been reported to the company a claim number should be obtained.  The claim number functions much like an insurance card.  The company should send out an application for no-fault benefits.  That application must be completed, signed and submitted to the company in order for it to pay any benefits.  The injured party will receive instructions with the form.

 If you have gone to the hospital and no information was given to the billing department the hospital should be contacted and given the name, address and telephone number of the insurance company insuring the vehicle along with the claim number so that the bill may be sent to the insurance company for payment.

 Once you have been discharged from the hospital, or if you were not treated at a hospital, you should go to a doctor or doctors in the specialties that address the particular injuries complained of.  All too often we have clients who tell us they have seen a medical doctor  but they don't know what type of doctor, orthopedist, neurologist, etc. they have seen. Know the names and addresses of the doctors and the specialties in which they practice. In addition, understand that if you retain an attorney the records of the treating doctors generally will not be provided automatically and typically, the attorney pays for the records.  The payments made by the attorneys are called disbursements and are repaid to the attorneys if and when the matter is resolved.

 At some point after the claim has been made the insurance company that insured the vehicle will send you to a doctor or doctors of their choice in various specialties.  The exam, often referred to as an independent medical exam (IME) is anything but independent and is performed as a way for the insurance to justify a termination in benefits.   These exams are usually set up by companies in the business of making appointments and the doctors who do the exams are often well known in the industry.

These doctors will then issue reports of the examination which may result in a denial of benefits or may allow the benefits to continue.

 Lost wages will be paid so long as the company has three things, the application for no-fault benefits, a disability note or certificate from the treating doctor and the employer has submitted a verification of lost wages.  You must have a disability note from the doctor every thirty days.  Lost wages can only be paid for a limited period of time pursuant to the policy.

If you have an accident you may contact the firm.  The initial consultation is free of charge.