I’ve Been Hurt in a Car Accident. Do I Have a Claim?
By Richard A. Joel, Jr., Esq., Joel & Joel, LLP © 2011
1. Do I have a claim?
To determine whether you have a pursuable legal claim, an assessment has to be made of liability, damages, and whether the lawsuit option (verbal threshold) applies. If you intentionally caused an accident or your negligence exceeds the negligence of the defendants, you will not have a case. In reviewing liability, you need to assess the facts and law to determine if the defendant owed a duty of care to you, breached that duty, the breach was the proximate cause of your damages (injuries), and you have suffered damages (injuries). An attorney will be able to review the liability aspects of a case with you. Damages can be noneconomic damages (i.e. pain and suffering for your injuries) and economic (i.e. lost wages, out of pocket expenses, etc.). You need to have sufficient injuries and damages that make a case worthwhile and economical to pursue. The value of a case will be in proportion to the severity and permanency of your injuries. The severity of injuries will be determined by your doctors and the treatment you receive (i.e. multiple major surgeries, etc.). If the injuries are relatively minor (i.e. soft tissue) and resolve completely within a short period of time, you may not have a claim worth pursuing. A determination also has to be made whether the lawsuit option (verbal threshold) applies. An attorney will require your auto insurance policy and full details on the facts of the case and the responsible parties to make a determination if the lawsuit option (verbal threshold) applies. If it does apply, your right to sue may be limited and this is discussed further below.
2. The lawsuit option? The verbal what?
I was told by my insurance representative that I have full coverage. I can sue. Right? Under New Jersey statute (N.J.S.A. 39:6A-8), your right to sue may be governed by the tort option if you elected it under your insurance policy. The two tort options are limitation on lawsuit option (verbal threshold) and no limitation on lawsuit option (no threshold). The verbal threshold law provides that individuals who elect coverage with the verbal threshold, or who are subject to the threshold as a matter of law, may bring actions seeking noneconomic losses resulting from injuries arising out of the operation of a private passenger automobile only if the injuries in question meet certain criteria. A person subject to the limitation on lawsuit threshold may bring a lawsuit for noneconomic damages only if the individual sustains bodily injury, resulting from the operation of an automobile in this State, which results in: (a) death, (b) dismemberment, (c) significant disfigurement or significant scarring, (d) displaced fractures, (e) loss of a fetus, or (f) a permanent injury within a reasonable degree of medical probability, other than scarring and disfigurement. The statute further provides that an injury will be considered permanent when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment. The statute additionally provides that, in order to satisfy the limitation on lawsuit threshold the plaintiff must, within 60 days following the date of the answer to the complaint, provide the defendant with a certification from the licensed treating physician or a board-certified licensed physician to whom the plaintiff was referred by the treating physician. The statute further provides: The certification shall state, under penalty of perjury, that the plaintiff sustained an injury described above [in (a)-(f)] . The certification shall be based upon and refer to objective clinical evidence, which may include medical testing, … such testing may not be experimental in nature or dependent entirely upon subjective patient response … . A lot of cases will hinge on whether the injuries meet the threshold or not. If not, your claim will be dismissed. An attorney will be able to review the facts of a case with you to determine if the lawsuit option (verbal threshold) applies.
3. I have a claim. What next?
Some claims are resolved directly with an insurance company without the necessity of a lawsuit. There are advantages to this in that you receive a sum certain without the uncertainty, stress, and expense of litigation.
4. The insurance company will not settle my claim. Is a lawsuit necessary?
If an insurance company will not deal fairly to resolve a claim, a lawsuit will have to be filed within two years of the accident. This is done by filing a Complaint with the Court. Once a Complaint is filed, the defendant has to be personally served with a Summons and a copy of the filed Complaint. After the defendant is served, he or she will notify their insurance company of service and their insurance company will defend them and file an Answer on their behalf.
5. I have a lawsuit and we are now in the pretrial discovery phase.
The parties have the right to seek information from one another or from third parties. This can be done by interrogatories which are written questions provided to the other party to answer, document requests where documents are requested from the other party, demand for admissions wherein a party requests that an adversary admit certain facts, and depositions where a party or non-party is questioned under oath before a court reporter. The other party can also request that you submit to a medical examination by their doctor. A party can also serve subpoenas upon non-parties to obtain testimony or documents. During discovery, there may be certain motions filed and heard by the Court. Your attorney will explain to you what a motion is and what the motion is about.
6. Discovery is finished and we are trying to resolve the case.
After discovery is complete, courts usually have certain alternative dispute programs (i.e. mediation, arbitration, settlement conference, etc.), or the parties can agree to pursue settlement on their own, to resolve personal injury claims. Mediation involves a neutral third party (commonly a retired Judge or experienced attorney) will facilitate discussions between the parties to assist them in reaching a resolution. Arbitration is similar to an informal mini-trial where evidence and argument are presented to the arbitrator and the arbitrator makes a decision as to liability and damages in a case. Arbitration can be binding or non-binding. A case can be settled at any time during these programs.
7. The insurance company will not settle.
Your case will be scheduled for a pretrial conference. The attorneys and Judge will review the case to discuss the issues and prepare for trial. Settlement negotiations may also take place.
If an insurance company is not being fair and reasonable in attempting to settle your case, a trial will be your only option to obtain a recovery that compensates you fairly for your injuries as determined by a jury.
9. How do I get my money?
If a case is settled, you will have to sign a release. A release and stipulation of dismissal of the lawsuit is provided to the defendant’s attorney. The defendant’s insurance company will then process a check and send it to your attorney. The check will be endorsed by you and your attorney and deposited in an attorney trust account. Your attorney will prepare a closing statement setting forth the settlement amount, any deductions, and the net funds due you. You will be provided with the closing statement and the net settlement funds due you and the case will be closed.
The above information is provided by Richard A. Joel, Jr., Esq., Joel & Joel, LLP, 496 Kinderkamack Road, Oradell, NJ 07649; telephone (201) 599-0588; telefax (201) 599-0179; email: firstname.lastname@example.org; website: www.joelandjoel.com. The information provided above is for general informational purposes only and is not intended and should not be considered to be legal advice or legal opinion. This information does not constitute nor create an attorney-client relationship. No recipients of this information should act, or refrain from acting, based upon any of the above information.