I worked for an insurance company for many years, defending the exact types of claims I now prosecute for my Oregon injury clients. In that capacity, I learned what the insurance companies look for when they get a car accident injury claim or a claim related to some other type of accident.
Oftentimes, my Portland car accident injury clients have already had several discussions with the insurance company before they ever come to me. The insurance company representative will tell them that they don't need a lawyer, that the insurance company will make them a fair settlement.
Most people face maybe one serious car accident or other injury scenario in their lives. Some face more personal, horrific injuries like assault or even the physical abuse of a senior citizen. When faced with these tragic and unique circumstances, the easy and quick resolution offered by the insurance company can seem attractive.
Insurance companies deal with these issues every day. They make their money by collecting premiums for many years and then minimizing the payout when an actual accident occurs. This fundamental business principle necessarily means you are not on the same side as the insurance company when making an accident injury claim.
I draft and license a number of personal injury articles for the benefit of my car accident and personal injury clients and other Portland personal injury attorneys. Below is a series of articles I licensed from nolo.com with my editorial notes in brackets on the topic of making car accident insurance claims and insurance claims for other types of accidents resulting in injury.
Insurance Adjusters: First Discussions
Republished with Permission © 2011 Nolo.
When talking about personal injuries to the other party's insurance company, remember this rule: Be polite but say little.
[Everything you do or say after you've been injured in a car accident or some other type of accident can be used as evidence when you are making an insurance claim. An experienced Portland auto accident attorney will instruct their clients to use discretion when discussing the injury claim. Not only is this true of discussions with insurance company representatives, but it's even true of statements made to friends or on social media sites. Any statement about the accident or your injury is fair game when you are attempting to obtain a monetary recovery for your injury.]
Shortly after you've notified responsible parties that you've been injured in an accident and intend to file a claim for compensation, you're likely to hear from one or more insurance companies. These first conversations after your accident may be difficult, as you may be agitated or in pain, but common sense and a few guiding principles will keep you from saying anything that will adversely affect your insurance claim. [Ideally, you would engage an Oregon accident attorney or at lease seek a free legal consultation prior to having any conversations with the insurance company. That isn't always a practical reality, but the sooner you obtain advice from an experienced advocate, the better.]
Identify the Person With Whom You Speak
Before you discuss anything, get the person's name, address, and telephone number, the name of the insurance company, and the person or business the company represents. Record this information in a file. [Documenting your conversations with all relevant parties is critical to the prosecution of your injury claim and actually obtaining a fair settlement from the insurance company. This includes conversations with the at-fault party, any witnesses at the scene and the insurance company representatives.]
Remain Calm and Polite
Although you may well be angry about the accident and your injuries, taking out your anger on the insurance adjuster will not help you win compensation. Insurance adjusters are used to dealing with angry claimants, but they are human and do not respond kindly to abuse. It is a good idea to avoid losing your temper with or heaping abuse on the agent during your negotiation process. You might even be nice -- an insurance adjuster's good will toward you may pay off in promptly handling your claim or in believing you about something it is difficult for you to prove. [Not only will getting angry not help, it will hurt your auto accident insurance claim. The company will come to view your as a bad witness. That will directly reduce the settlement value of your claim.]
Give Only Limited Personal Information
You need only tell the insurance adjuster your full name, address, and telephone number. At this point you need not explain or discuss any more than that about your work, your schedule, or your income, nor do you have to give detailed family or other personal information. [One thing the insurance company is likely to be particularly interested in is your personal medical history. They will use this information to argue that the accident did not cause the injuries that you suffered. An experienced Portland auto accident attorney will analyze your prior medical history and determine which pieces of information the insurance company is entitled to know. Just because you've filed an insurance claim your whole life does not become an open book. If the insurance company starts asking you these types of questions, contact a personal injury lawyer immediately.]
Do Not Give Details of the Accident
Note that these instructions apply to contact with another person's insurance company. When it comes to your own insurance company, you may be obligated by the rules of your policy to give your own insurance adjuster information about the accident. Be sure to read with care anything you're asked to sign, especially a release form that allows your insurer to gather information. For more about this, see How to Win Your Personal Injury Claim, by attorney Joseph L. Matthews (Nolo). [Your duty to cooperate with your insurance company does not mean that you should necessarily trust that they will adequately protect your interests.]
Insurance adjusters or other representatives may try to get you to "give a statement" about how the accident happened -- or they may simply engage you in conversation, during which they will try more subtly to get you to tell them about the accident. Politely refuse any discussion of the facts of the accident except the most basic: where, when, the type of accident, and the vehicles involved if it was a traffic accident. Say that your investigation of the accident is still continuing and that you will discuss the facts further "at the appropriate time." Later, you will be making a written demand for compensation in which you will describe the accident in detail. [Victims of a car accident should not give recorded statements without first finding an experienced car accident attorney and having a meaningful legal consultation. These statements will stay with you throughout the case and they should be treated with the car of testimony in a deposition or at trial.]
Witnesses
If an adjuster asks about witnesses and you know of some, respond that there "may be" witnesses and that you will let the insurance company know "at the appropriate time." Do not commit yourself to identifying witnesses or to providing witness statements. Also, if the adjuster does ask you about witnesses, ask the adjuster if he or she knows of any.
Other Responsible Parties
If adjusters or representatives ask about potential responsible parties other than you and their insured, give any basic identifying information you may have and a general description of how this other person was involved, but, again, do not discuss the accident in detail. Also, ask whether the adjuster is aware of anyone else who might be responsible for the accident.
[There is no reason that you cannot ask the insurance company adjuster whether or not they have information about the auto wreck that you don't have. Sometimes an adjuster will give you valuable information to use once you've engaged your attorney. Spending more time asking questions than answering them is a good rule of thumb for dealing with inquisitive insurance company adjusters.]
Don't Give Details of Your Injuries
Naturally enough, an insurance adjuster is going to want to know about your injuries. However, you should not give a detailed description yet, in case you leave something out or discover an injury later, or your injury turns out to be worse than you originally thought. [Many of the most common and serious accidents that come out of a car accident don't reveal themselves or their severity until the days, weeks or months after the accident. Many of my clients believed that they would only feel better after the accident. Not so, many injuries like brain injuries, spinal cord or back injuries, whiplash or even soft tissue injuries often worsen before they get better. What does not seem like a big deal in terms of pain and suffering may very well become one after you've already told the insurance company you were fine. These are very difficult statements to take back.]
Later, when you know the true extent of your injuries and treatment, you will include a complete medical description of your injuries in your written demand for compensation. Until then, give only a general description of injuries ("I've hurt my knee and back" or "My wrist is broken and I have neck and back pain"), and tell the adjuster you do not yet know how severe your injuries are. Also tell the adjuster that you will be seeking or continuing medical treatment. You do not have to say what doctors or other medical providers you are seeing, and you should not yet give the adjuster their names and addresses.
Resist the Push to Settle Immediately
Insurance adjusters sometimes try to offer a settlement during the first one or two phone calls. Such quick settlements save the insurance company work, and, more important, settling fast gets you to accept a small amount before you know fully what your injuries are and how much your claim is really worth. Don't do it. Agreeing may seem like a simple way to get compensation without having to go through the claims process, and a quick settlement is often tempting, but it will almost certainly cost you money, sometimes quite a lot. [This is the single most important fact to take from this article. A quick resolution for pennies on the dollar does nothing to protect your rights. Patience and careful handing of your auto accident injury or other injury claim is the only way to maximize your recovery. Hiring an experienced Portland auto wreck attorney, whether it is me or someone else, is the pathway to maximizing that recovery with minimal intrusion into your daily life.]
Set Limits on Conversations
In your first contact with an insurance adjuster, make it clear that you will not be discussing much on the phone. Not only should you give very limited information in this first phone call, as discussed above, but you should also set clear limits on any further phone contact.
Let the adjuster know that, until you have finished investigating the accident, have completed medical treatment, and have fully recovered from your injuries, you do not want to discuss any further either how the accident happened, what your injuries are, or what a settlement amount should be. Ask that the adjuster communicate with you in writing until you present your written demand for compensation and actual settlement negotiations begin.
[If you are considering hiring a lawyer, you can tell the adjuster that, but you don't have to. If there are things about the accident or your injuries that you are uncertain about, don't speak in absolute terms. Investigate the facts, understand the injuries, and make statements only once you are confident that they are accurate.]
In some situations, however, it may not be practical to stop all phone conversations. For example, if you have been in an auto accident, you may need to discuss repairs to your car. If you do need to speak to the adjuster again, set whatever limits you want on the place and times -- home or work, morning, evening, weekends -- for telephone contact. [Don't let the adjuster hound you if you are still in the hospital or at work. Limit conversations to when you can speak with a clear state of mind and undistracted. Clarity and timing can mean the difference between saying the wrong thing and saying the appropriate thing to the insurance company.]
There are good reasons to limit your phone conversations with insurance adjusters. Some will call frequently in an attempt to get you to settle quickly, and they can become a real nuisance. It's good to nip this in the bud.
More important, until you have had a full opportunity to investigate and think about the accident, and to determine the extent of and to recover from your injuries, you will not have accurate information to provide. And, if you give incomplete or inaccurate information on the phone, the insurance company may try to make you stick to it later on. Some insurance adjusters are good at getting you to say something which could be considered an admission of some fault on your part, or which limits the seriousness of your injuries. It is therefore much better to have no discussions at all until you have made your compensation demand in writing and you are fully prepared to discuss a settlement.
Take Notes
As soon as your conversation is over, write down all the information you received over the phone, as well as whatever information you gave to, or requests you made of, the person with whom you spoke. Get in the habit of note taking for all conversations with anyone from the insurance company.
|
Don't Sign Anything From Another Insurance Company |
|
No matter what an adjuster says about any forms, do not sign anything sent to you by another person's insurance company. Among the first things you might receive in the mail from an insurance company handling an accident claim are various forms an adjuster describes to you as "just routine" or "normal procedure." However, these forms may give the insurance company direct access to your medical, personal, or work records -- or even be a disguised release from any liability for the accident. [Be immediately suspicious of any request that you sign anything in the wake of the accident. There is almost never a reason to sign your name to anything that the insurance company presents to you unless you’ve had a chance to talk to an Oregon injury lawyer.] |
[At the end of the day, accuracy and truth is the only way to approach your car accident injury claim. But disclosing the truth accurately needs to be done carefully and with the assistance of an experienced injury lawyer-one who knows in the insurance companies and their representatives in your area. The insurance companies make money by relying on the missteps of the injured victims of auto accidents. Be calm, courteous and thoughtful in the days following your accident. Then seek the advice of a competent Oregon car wreck attorney.]
How Much Is Your Personal Injury Claim Worth?
Republished with Permission © 2011 Nolo.
Here's how insurance companies determine the value of your personal injury claim.
Figuring out how much your accident injuries are worth is a critical aspect of any personal injury claim, and it's the part of a claim that is most difficult to determine; the amount varies depending on your very particular circumstances. Here is an overview of how insurance companies determine the value of a claim.
[This is an issue that I spent nearly a decade personally learning on the inside as an insurance company lawyer. While no Oregon accident injury lawyer can tell you exactly what your claim is worth down to the dollar, the experienced and honest Oregon injury attorney can describe to you the strengths and weaknesses of your case to you in clear and understandable terms. The insurance company adjuster, in discussions with you before you get an injury lawyer, will likely try to accentuate the weaknesses of your case while ignoring the strengths. A meaningful initial consultation with an experienced Portland car accident lawyer can clarify where you stand.]
What an Insurance Company Must Compensate
To determine what your claim is worth, you must first know the types of damages for which you may be compensated. Usually, a person who is liable for an accident -- and therefore his or her liability insurance company -- must pay an injured person for:
- medical care and related expenses
- income lost because of the accident, because of time spent unable to work or undergoing treatment for injuries
- permanent physical disability or disfigurement
- loss of family, social, and educational experiences, including missed school or training, vacation or recreation, or a special event
- emotional damages, such as stress, embarrassment, depression, or strains on family relationships -- for example, the inability to take care of children, anxiety over the effects of an accident on an unborn child, or interference with sexual relations, and
- damaged property.
[This is a good comprehensive list of available damages under Oregon law. Each case is different and not every claimant is entitled to lost income just because they've been in a car accident, for example. Even where wages have been lost, if they are not independently verifiable, a Portland or Seaside or Bend jury might refuse to award them or severely curtail them. Emotional distress damages are another type of damages that vary widely from jury to jury. Finally, under certain circumstances, punitive damages are available to punish a defendant for particularly egregious conduct. This type of damages often arises in civil lawsuits against drunk drivers.]
The Insurance Company's Damages Formula
When determining compensation, it is usually simple to add up the money spent and money lost, but there is no precise way to put a dollar figure on pain and suffering or on missed experiences and lost opportunities. That's where an insurance company's damages formula comes in.
[What follows is a very, very loose rule of thumb and it varies wildly from insurer to insurer. The degree of variation is so wide that I debated whether even to post this formula. Understanding that insurance companies view pain and suffering as tied in some respects to medical bills is a valuable piece of information, although even that basic fact is not always correct. The more accurate statement of that principal is that insurance companies view pain and suffering as tied to the severity of the underlying injury, which bears a relationship to the medical bills, but not always directly.
A Portland auto accident victim, for example, should never assume that they are entitled to a certain multiple of their medicals as a settlement for pain and suffering damages for their auto accident claim. Insurance companies vary in the way they handle accident injury claims. Most importantly someone who has been in an accident should never engage in what is known as 'over-treating,' wracking up medical or chiropractic bills in the mistaken belief that it will increase their 'damage formula' number. Some relatively low impact injuries can require very expensive medical treatment. The formula will also end up being skewed and unreliable under those circumstances.
If the insurance company does not offer you a fair settlement offer for your claim, you can take your case to trial. Once you get there, all bets, or 'formulas,' are off. I take personal injury cases to trial throughout Oregon and juries are different throughout the state. A jury in Seaside, Oregon or Lincoln City will view a particular injury differently than one in Redmond, Bend or McMinnville, Oregon.]
At the beginning of claim negotiations, an insurance adjuster adds up the total medical expenses related to the injury. These expenses are referred to as "medical special damages" or simply "specials." That's the base figure the adjuster uses to figure out how much to pay the injured person for pain, suffering, and other nonmonetary losses, which are called "general" damages.
When the injuries are relatively minor, the adjuster multiplies the amount of special damages by 1.5 or 2. When the injuries are particularly painful, serious, or long-lasting, the adjuster multiplies the amount of special damages by up to 5. (The multiplier may be as great as 10 in extreme cases. For information on exactly how an adjuster determines the multiplier, see How to Win Your Personal Injury Claim, by attorney Joseph L. Matthews (Nolo).)
The adjuster then adds on any income lost as a result of the injuries.
That's all there is to the formula. However, this figure -- medical specials multiplied by a number between 1.5 and 5, then added to lost income -- is not a final compensation amount but only the number from which negotiations begin.
Percentage of Fault
The extent each person is at fault is the most important factor affecting how much the insurance company is likely to pay. The damages formula gives you a range of how much your injuries might be worth, but only after you figure in the question of fault do you know the actual compensation value of your claim -- that is, how much an insurance company will pay you.
Determining fault for an accident is not an exact science, but in most claims both you and the insurance adjuster will at least have a good idea whether the insured person was entirely at fault, or if you were a little at fault, or if you were a lot at fault. Whatever that rough percentage of your comparative fault might be -- 10%, 50%, 75% -- is the amount by which the damages formula total will be reduced to arrive at a final figure.
[Under Oregon law, if a plaintiff is found to be more than 50% at fault for a particular set of accident injuries, the plaintiff can recover nothing in damages. This modified rule of comparative fault can produce very harsh results for Oregon car accident victims and it must be taken into account in trying to value a case.]
For an extensive discussion of determining the value of your claim -- along with many examples -- see How to Win Your Personal Injury Claim, by attorney Joseph L Matthews (Nolo).
Negotiating With an Insurance Company
Republished with Permission © 2011 Nolo.
How to succeed in negotiating your insurance claim. [You can always attempt to negotiate your car accident claim on your own, but there are some good reasons why you might not want to. I negotiate these claims every day. It's what I do. I handle negotiations efficiently. I typically have a good sense when there is more money on the table for negotiating and when it is time to merely shut it down and take the case to trial. I can handle you insurance claim and let you focus on getting back to being you. At the end of the day, I can usually negotiate a much larger settlement with the insurance company that you could have on your own. If they don't play ball, we go to trial. Nevertheless, some of my potential clients want to take a stab at handling their insurance claim on their own. I provide them as much information as I can to assist them in that effort. If you can handle your claim on your own, go for it. If it doesn't work out, I will pick up where you left off.]
Whether you have a personal injury claim, were in a car accident, or were on the receiving end of medical malpractice, after you submit a demand letter to an insurance company, it's time to negotiate. [While it is true that most accident injury claims involve negotiations with the insurance company on some level, the nature of those negotiations do vary widely depending on the type of accident that caused the injury. A basic auto accident injury resulting in soft tissue damage or whiplash, for example, might involve a set of negotiations that is very familiar to a car accident attorney in Portland or the surrounding areas who handles hundreds of them a year. A complicated wrongful death claim or a medical malpractice claim will involve negotiations that are unique and driven by their own set of facts. Even an experienced Portland wrongful death attorney will not be able to anticipate every twist and turn of these negotiations.]
If you have presented an insurance company with an organized demand letter and the proper supporting documents, your claim negotiation process will probably consist of nothing more than a few phone calls with an insurance claims adjuster. [By that time, you will know whether the insurance company will make you a fair offer or whether you would be better served to engage an attorney. At a minimum, I highly recommend at least consulting with an injury lawyer before signing off on a settlement.] Following is a brief explanation of how negotiations usually work and some suggestions to help you succeed during the various stages of the process.
How the Negotiation Process Works
During the first call with the insurance adjuster, you and the adjuster will each make your points about the strengths and weaknesses of your claim. Then the adjuster will make an offer to settle your claim for an amount lower than what you requested in your demand letter. You will counter with a figure higher than the adjuster's offer but lower than your original figure. Typically, after two or three phone calls you will agree on a settlement figure somewhere in between [or you will realize that the insurance company is not willing to make you a fair offer to resolve your case without your hiring an attorney].
|
Reservation of Rights Letter |
|
If you receive a "reservation of rights" letter from the insurance company, don't be alarmed or intimidated. This letter informs you that the company is investigating your claim, but that it is reserving its right not to pay you anything if it turns out that the accident is not covered under the policy. The letter simply protects the insurance company by preventing you from claiming that the company's insurance policy covers your accident just because it began settlement negotiations with you. [This is an arcane, and frankly meaningless, document. Save the document for your records, but don’t waste a lot of time trying to interpret it or read too much into it.] |
Have a Settlement Amount in Mind
As part of putting together your demand letter, you should have determined what you believe your claim is worth. Within that range, and before you speak to an adjuster about your demand, decide on a minimum settlement figure that you will accept. This figure is for your own information -- so you can keep your bottom line in mind when under the pressures of negotiating -- but it is not something you should reveal to the adjuster. [There is absolutely no reason to reveal your bottom line to the adjuster until you are in your final round of negotiations. If you make the insurance company a take-it-or-leave-it offer, you have to be prepared to go forward and hire your lawyer if they don't meet your demand. Your settlement position will be compromised if you repeatedly make false threats to the insurance company adjuster.]
You do not, however, have to cling to the figure you set for yourself. If an adjuster points out some facts you had not considered but that clearly make your claim weaker, you may have to lower your figure a bit. [Remember, insurance company adjusters handle car accident claims every single day. They've seen nearly every fact pattern in a car accident arising from nearly every angle. They are likely to present you legitimate information that you hadn't considered. They're also likely to use a familiar trick or two to convince you that your claim isn't worth what you think it is. It is important to identify the difference between the two. If you have any doubt, contact a Portland, Oregon auto accident injury claim lawyer before agreeing to any settlement.] And, if the adjuster starts with an offer at or near your minimum, you may want to revise your figure upward.
Do Not Jump at a First Offer
When the insurance adjuster makes you a first offer, it may be so low that it is just a tactic to see if you know what you are doing (see below). Or, it may be a reasonable offer but too low. If the offer is reasonable, you can immediately make a counteroffer that is a little bit lower than your demand letter amount. This shows the adjuster that you, too, are being reasonable and are willing to compromise. A little more bargaining should quickly get you to a final settlement amount you both think is fair. [If you reach a point in the negotiations where you aren't getting substantially closer together with each round of negotiations, you've probably reached the point where you need to get your attorney involved.]
Get the Adjuster to Justify a Low Offer
If an adjuster makes a first offer so low that it is obviously just a negotiating tactic to see if you know what your claim is really worth, do not immediately lower the amount you put in your demand letter. Instead, ask the adjuster to give you specific reasons why the offer is so low, and make notes of what he or she tells you. Then write a brief letter responding to each of the factors the adjuster has mentioned.
[Keep in mind, one of the important components of injury settlement negotiations, even if you don't settle your injury claim, is to figure out what the insurance company views as the strengths and weaknesses of your case. This information can be valuable later in the case if you're forced to file a lawsuit.]
Depending on the strength of any of the adjuster's reasons, you can lower your demand slightly, but, before lowering the amount very far, wait to see if the adjuster will budge after receiving your reply. [Don't decide in the actual phone call whether the adjuster's reasons are valid. Take notes on the information you've been provided and take some time to think about its validity. Bounce the justification given by the insurance company off of others whose opinion you value.]
The next time you speak with the adjuster, begin by asking for a response to your reply letter. The adjuster should now make you a reasonable offer upon which you will be able to bargain and arrive at a fair settlement figure.
Emphasize Emotional Points
In these negotiations, don't bother to go over all the facts again. Just emphasize the strongest points in your favor -- for example, that the insured party was completely at fault, that you had a very painful injury, that your medical costs were reasonable, and/or that you had long-term or permanent physical effects. [If there is a particular point that you suspect is weak, it probably is. Emphasize your best points, and leave everything else alone. Shaky arguments are a waste of time and they're more likely to reduce the value of your insurance claim than increase it.]
However, it may help to mention any emotional points supporting your claim. If, for example, you have sent the adjuster a particularly strong photo of a smashed car or a severe-looking injury, refer to it. If your injury interfered with your ability to care for your child, mention that your child suffered as a result. Even though there is no way to put a dollar value on emotional factors, they can be powerful in getting an insurance company to settle a claim.
[An insurance company is evaluating your potential as a plaintiff as much as they're evaluating the facts surrounding your accident. If you oversell to them, they'll figure you'll oversell to a jury and turn them off. If you overemphasize emotional aspects of your case, they will come to believe you won't play well to a jury. Be normal, be yourself, be firm but be appropriate.]
Put the Settlement in Writing
When you and the insurance adjuster finally reach agreement, immediately confirm the agreement in a letter to the adjuster. This letter can be short and sweet, stating the amount for which you settled, what injuries or damages the settlement covers, and the date by which you expect to receive settlement documents from the insurance company. [When you receive the formal paperwork regarding your settlement, review it carefully. If you've made it this far without an attorney, you might consider asking one to review your settlement paperwork at this point.]
|
More Information About Negotiating Your Claim |
|
For more details on negotiating an insurance claim, including sample letters to insurance companies, suggestions for handling negotiations, and strategies for dealing with an insurance company that refuses to make a good offer, see How to Win Your Personal Injury Claim, by attorney Joseph L. Matthews (Nolo). |
Settling Your Personal Injury Claim FAQ
Republished with Permission © 2011 Nolo.
If you are injured in an accident, here are the first steps to take.
What's Below:
How soon do I need to notify people about my intention to file a claim for my accident injuries?
What is the deadline for filing an accident injury claim against a government entity?
Is there a deadline for filing a lawsuit to recover compensation for my injuries?
I've been hurt in an accident and I want to file a claim for my injuries. What's the first thing I should do?
There are a number of things you can do in the first few days and weeks after an accident to protect your right to compensation should you want to file an injury claim. [Step one is get healthy. Seek the appropriate medical treatment and focus on recovering physically. Once you've done that, find a Portland, Oregon car crash lawyer to help you recover money.] Except for filing a formal claim against a government entity, there's no single step that you absolutely must take to obtain a fair settlement, and no set order in which you must proceed. However, the more of the following suggestions you can follow, the more smoothly your claim process is likely to flow.
- Write down as much as you can about the accident itself, your injuries, and any other losses (such as wages) you've suffered as a result of the accident.
- Make notes of conversations that you have with people involved in the accident or the injury claim.
- Preserve evidence of who caused the accident and what damage was done by collecting physical evidence and taking photographs.
- Locate people who witnessed the accident and who might be able to help you prove your case , and
- Notify anyone you think might be responsible for the accident of your intention to file a claim for your injuries.
- [Get all the medical help you need to recover.]
How soon do I need to notify people about my intention to file a claim for my accident injuries?
Unless you're filing a claim against a government agency or employee, you need not notify the people you think are responsible for your injuries within a set number of days after an accident. But that doesn't mean you should drag your feet. On the contrary, acting right away -- within a few days, if possible -- will increase your chances of receiving a quick and fair resolution to your claim. [This is counterbalanced by another very important principle. Depending on the nature of your injuries, the true extent of your physical injuries may not become known for days or weeks after the accident. Settling too quickly can mean settling for the wrong injuries and receiving substantially less money for your car accident claim.]
Giving notice doesn't obligate you to file a claim; it simply preserves your rights and prevents others from later saying that your claim is unfair because you waited too long to tell them about your injuries. If you promptly notify others that you intend to file a claim for your injuries, you can then move at your own pace in processing and negotiating the claim with the insurance company or government agency that winds up taking responsibility.
>
What is the deadline for filing an accident injury claim against a government entity?
If your accident might have been even partially caused by a government entity or employee -- the city, county, state, or federal government, or any public agency or division (a city bus or a school district, for example) -- you must file a formal claim within a short time after your accident. This period of time usually ranges between 30 days and one year, depending on your state. If you fail to file a claim within the time limit, or fail to include required information in your claim, you may forever lose your right to collect compensation.
To find the time limit for your state, call your city or county attorney's office and ask. Although they may be the ones defending against your claim if you file it, they are under a legal obligation to give you correct filing information. You can also find a complete list of time limits, plus instructions on how to file a government claim, in How to Win Your Personal Injury Claim, by Joseph Matthews (Nolo).
[The Oregon Tort Claims Act requires notice within 180 days of the accident in most circumstances. When you are recovering from a car wreck, this time period can pass in the blink of an eye. I always recommend attorney involvement in a claim against a governmental entity. There are enough twists and turns and rules of law applicable to these claims that they are very difficult to handle yourself.]
Is there a deadline for filing a lawsuit to recover compensation for my injuries?
If you have no success reaching a settlement with an insurance company, you may be forced to consider bringing a lawsuit in small claims or other court. But you must be aware of the laws, called "statutes of limitations," that limit the time in which you have to file. If you miss your state's deadline, you will lose your right to recover compensation in court, and will be forced to abandon your claim altogether.
Check your state's laws to find the time limit that applies to your case. [In Oregon, the statute of limitations for car accident insurance claims is two years. The Oregon wrongful death statute provides a three-year statute of limitations. If you've been waiting to make your claim until your body has recovered physically and that time is approaching a year, you should obtain a free consultation with an Oregon injury lawyer to make sure there are no statute of limitations issues with your claim. Oregon law on the statute of limitations in injury cases can be nuanced and tricky. If you blow through the statute of limitations, your claim can be lost forever.}
Dealing With Your Insurance Company FAQ
Republished with Permission © 2011 Nolo.
Communicating with insurance companies about your personal injury claim.
What's Below:
How does the insurance claims process work?
How do I make a formal claim for compensation for my injuries?
How do insurance companies decide how much they'll pay to compensate someone for an injury?
How does the insurance claims process work?
The claims process usually proceeds in predictable steps. Before you file a claim, you must notify people who may be responsible for the accident that you've been hurt and intend to file a claim for your injuries. This increases your chances of getting a quick settlement and prevents others from later saying that your claim unfairly surprised them. [This is good advice but not absolutely critical. If you have failed to notify responsible parties, all is not lost unless the statute of limitations has run on your claim. If that hasn't happened, it's usually not too late to give notice of your injury insurance claim.]
Next, after you've taken time to thoroughly investigate your claim by gathering evidence, establishing who's responsible for the accident, determining what you believe your claim is worth, and planning good arguments, you will write a formal demand letter and submit it to the insurance company of the person who you believe is responsible for your injuries. (This may include your own insurance company -- for example, if you are covered by a no-fault automobile policy or need to make a claim for uninsured or underinsured motorist coverage.) From there, you will engage in informal negotiations with the insurance company until you agree on a settlement you can live with. [It sounds easy enough, and sometimes it is, but it is almost always a very time consuming process. If a settlement materializes very quickly, sometimes that means you've agreed to settle too low.]
Many insurance claims are that simple, though sometimes you may find yourself dealing with a stubborn or unreasonable claims adjuster. If that's the case, you must resort to more determined negotiation tactics -- or perhaps consult an experienced personal injury lawyer. [Even if you are dealing with a generally reasonable adjuster, a car accident attorney who has experience in a Portland courtroom can increase the value of your claim and usually does just by being involved in the case. Insurance companies worry about big judgments obtained by the best Portland car accident lawyers. This fear usually translates into increased settlements.] If all else fails, you may even have to take your case to court.
What guidelines should I follow when another person's insurance company calls me to talk about my injuries?
After you notify others that you've been hurt in an accident and intend to file an injury claim, you may receive phone calls from one or more insurance companies that want to talk to you about what happened. In these first conversations -- which will most likely occur before you file your claim for compensation (called a "demand letter") -- you should abide by the following principles:
- remain calm and polite
- identify the person you're speaking with, the company he or she represents, and the person who is insured
- give limited personal information (your name, address, and phone number is sufficient)
- do not give details about the accident or your injuries
- resist any push to settle your claim immediately
- set limits on further phone contact, and
- take notes about any important information you received during the phone call, as well as whatever information you gave to or requests you made of the insurance adjuster.
Remembering these important rules will help you maintain your chances of receiving a good settlement for your injury claim. [The adjuster is evaluating your case and that means the adjuster is evaluating you. Strong plaintiffs are polite, smart, believable and matter of fact. If they see you as rude, exaggerating, argumentative, whiney or even just annoying, an adjuster will come to believe that a jury would see it too and reduce the value of your claim accordingly.]
How do I make a formal claim for compensation for my injuries?
After you decide which insurance company (or companies) should pay for your injuries, and you gather all the evidence you need to establish your claim, you must send the insurance company a demand letter. This letter is a critical element of your claim negotiation process, so it is essential that you write it carefully and well. In your demand letter, you set out your strongest arguments concerning:
- why the insured person is legally responsible for your injuries
- what your injuries were and are
- what kind of medical treatment you've had and how much it cost
- what your income loss was
- what other damages you suffered, and
- if you have no-fault automobile insurance, why you qualify to make a claim against the insured person.
Your letter should conclude with a demand on the insurance company for a lump sum to settle your entire claim. [Some Oregon car crash attorneys do not send demand letters at all in particular cases. Sometimes, it is simply a waste of time and filing a personal injury lawsuit is the best way to be taken seriously.]
How do insurance companies decide how much they'll pay to compensate someone for an injury?
While the final payment figure depends on negotiations with the injured person, insurance companies and lawyers do use a formula to calculate a range of compensation for an injury. In general, if you've been injured you can expect to be reimbursed for:
- medical care
- lost income
- temporary and permanent pain and other physical discomfort and disability, and
- loss of family, social, and educational experiences.
In calculating the range of compensation, a claims adjuster begins with a standard damages formula. [But there is no single formula that can tell you what your claim is worth down to the penny. I would be very skeptical of any personal injury lawyer who says they can tell you exactly what your case is worth. The value of your case depends on the exact facts of your case, and the value will vary from insurance company to insurance company and from adjuster to adjuster within a particular insurance company.]
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. [An experienced car accident insurance claim negotiator can handle those health insurance liens for you by negotiating them down as far as a health insurance carrier will go. The ability to negotiate down these health care bills also varies from carrier to carrier and case to case. This is another reason why going it alone in negotiating your auto accident injury claim can be tricky.]