How Soon After The Injury Should I Contact An Attorney?
Daniel Hoarfrost: From the lawyer’s perspective, the earlier the better. This is because the earlier that the attorney gets involved in the case then the more influence he has and the more control he has basically on how things proceed.
For the parties concerned, the first order of business is to make sure you have whatever medical care that is necessary, taking care of any medical issues and, going to see a doctor. That’s also helpful because then you have a diagnosis to discuss with the attorney about and that’s going to be helpful down the road.
The first order of business is to make sure you’re getting medical treatment if you need it and then basically as early as convenient and you feel well enough to deal with it, you should think about getting together with the attorney.
How Long Do I Have To Bring A Lawsuit Against Those Legally Responsible For Causing My Injuries? What’s The Statute Of Limitations?
Daniel Hoarfrost: In Oregon, the statute of limitations is two years from the date of the injury. If we’re talking about a car accident case, the two years almost always dates from the car accident. There is a discovery rule whereas if you don’t necessarily discover that you’re injured right away then the two years dates from the date that you reasonably discovered that you were injured.
But that rarely comes up in a car accident because it’s usually pretty obvious to whether or not you’re injured. To be on the safe side, the suit should date no longer than two years from the date of the accident.
Interestingly, property damage, in other words damage to your car has a six year statute of limitations, but those rarely are property damage claims without an injury are rarely the basis of a legal claim or a lawsuit. Usually, insurance just takes care of that so that’s it.
Do Personal Injury Claims Have To Go To Court?
Daniel Hoarfrost: No. No claim has to go to court if the opposing parties can reach a resolution that’s acceptable to the both of them. In my practice I always, unless the client doesn’t come in until right before the statute of limitations, I always go through a negotiation process with the other side. This is usually an insurance company, before actually filing a lawsuit.
There are several reasons for that namely, for one, it’s a much faster process and it’s a more certain process. This is because once you’ve agreed on evaluation of a claim then you know how much you’re going to receive. Whereas in a lawsuit, you never really know until you either settle it down the road or put it in front of a jury and find out what they’re going to allow in the case.
From the old saying “A bird in the hand is better than two in the bush” the settlement process has a lot of advantages. Of course, the statute of limitations factors in there as well. If the case can’t be resolved for one reason or another prior to the two year statute then you have to file a lawsuit to protect your claim, otherwise you lose the right to bring a claim.
How Long Does It Take To Resolve A Personal Injury Claim?
Daniel Hoarfrost: That’s a difficult one to forecast. The reason being is that you really don’t want to resolve the claim while you’re still receiving medical treatment because you never really know what a claim is worth. The value can’t be determined until you fully evaluate the extent of the injury and you don’t know the full extent of the injury until you have reached what we refer to as “a point of medically stable.”
Medically stable means you’ve gotten back to as good as you’re going to get. Either you’ve recovered to pre-injury status or you’ve healed up as much as you’re going to end up there is some residual disability. Those types of factors make a whole lot of difference into the amount that the claim is worth. It’s difficult to predict how long the treatment is going to go on.
Typically, in most car accident cases it takes at least six months before you are ready to present your demand. Once the demand is sent out to the insurance company, then there’s probably a two or three month process of negotiation that will take place.
Then you’ll determine whether you’re going to settle the case or going to start a lawsuit. Once a lawsuit is filed, it’s probably another usually nine to twelve months before there is any kind of resolution there. It can be a protracted process, but most of the delay, at least in the early going has to do with of determining your medical status and completing whatever medical treatment is necessary.
How Should I Handle Any Interactions With Insurance Claim Adjusters? Should I Just Accept The Insurance Company’s Settlement?
Daniel Hoarfrost: In general, I would say never accept a settlement offer without at least consulting an attorney. I have a practice of conferring with clients and offering a free consultation. Unless the claimant is very minor and you’re happy with $500 to $1000 to resolve it, you should always at least give your attorney a call and talk about it.
I’m happy to go over the basics of the claim with anyone. We can determine whether it’s a valid offer or if they should make a counteroffer to the adjuster.
What Are The Steps I Should Take After I Have Been Involved In A Car Accident?
Daniel Hoarfrost: Immediately after the accident, at the scene of the accident, the first step is to exchange information with the other driver. What that means is name and address, telephone number and insurance information, which is of course, the most important. One thing that people frequently forget to do is get the other driver’s address and a driver’s license number; those are also helpful.
Oftentimes people just exchange their insurance information and figure that will take care of it. What happens frequently is that a year or more down the road when the case still hasn’t resolved and it’s time to file a lawsuit, you don’t necessarily have an address to serve a summons on the other driver. It gets to be a little nerve-wracking if you are running up against the statute of limitations.
That’s just a little tip to people who have been involved in an accident. So you need their name and address, phone number, driver’s license number and insurance information.
Then in the early going after you’ve gone home if you’re injured enough that you feel like you need immediate medical treatment then that’s the first order of business. You should go to an emergency room or at least an urgent care and be evaluated by a physician.
That’s what you need to worry about first, but after whatever emergency or urgent medical needs are dealt with, then the first thing you are going to need to do is contact your own insurance company and begin what’s known in Oregon as a PIP application.
PIP stands for Personal Injury Protection because the medical bills that are related to the accident are first going to be paid by your own company, regardless of who is at fault in the accident.
Even if the other driver ran a red light or rear-ended you, it’s still your company that’s going to pay the medical bills in the early going. Then once all the treatment is resolved, they’re going to be reimbursed from the other driver’s insurance. You need to contact your own insurance company.
You will probably be contacted by the other driver’s company as well to take a phone statement as to what happened or to talk about getting an appraisal on the car damage and other matters. If you feel up to handling that that’s probably fine. If you need assistance dealing with that, then call an attorney.
Basically from that point on it’s a matter of waiting until the medical professionals are done with their end of the job and just supervising the process of the claim until it’s in a position to either make a settlement demand or file a lawsuit.
Would It Be Helpful If I Took Pictures Of My Injury?
Daniel Hoarfrost: Pictures are always helpful. What you have to keep in mind if you’re going to be bringing a claim to recover money damages is that it’s always a question of what can be proven in court. This is opposed to rather than just what in your own mind what happened and what it should be worth?
It’s a question of proof and really in terms of presenting a case in a courtroom is really no better evidence than pictures or even videotape. This is because that brings the fact finder, whether it’s an arbitrator, a judge or a jury more closely involved with the actual claim.
It also memorializes the state of the injury right after the accident. You have to remember is that the case probably won’t resolve for at least six months to a year after the collision. It’s a matter of trying to remember or at least portray to other people what status of things was right after the accident at a later date when those injuries don’t necessarily show. Yes, pictures are always advantageous.
What Am I Entitled To After An Injury?
Daniel Hoarfrost: In an injury claim, in Oregon we have two kinds of damages. One is called economic damages and that is the easier to explain of the two. They are namely medical bills, repair damages for the vehicle, lost wages, and actually impaired earning capacity. The latter sometimes isn’t necessarily as easy to prove as lost wages because you’re projecting out into the future.
But those are the categories which are referred to as “objectively verifiable damages.” In other words, somebody sent you a bill where you’ve got a pay stub or that sort of thing that demonstrates what you have lost as a result of the collision.
The second kind of damage is non-economic damage. That’s basically what you hear referred to as “pain and suffering damages.” These are non-objective, in other words there’s no set formula to determine the amount of non-economic damages that are available to a claim.
But the juries are instructed that the amount to be assigned to the claim is supposed to account for physical pain, emotional distress, mental suffering, and inconvenience. Essentially, it is the loss of quality of life damages. That’s usually the portion of the claim where the claimant gets to actually take some money home with them.
With A Personal Injury Claim, How Do Attorney Fees Work?
Daniel Hoarfrost: In any injury claim, it is virtually always taken under what’s known as a
contingency fee basis. That is a percentage fee. Based on what is recovered from the other party, the attorney takes a percentage. My fee arrangement of the percentage varies depending on how far into the legal process we have go to resolve it. If a claim is able to be settled with the insurance company without filing a lawsuit, then I take 25%.
Sometimes a lawsuit is filed for various reasons. Usually, it is having to do with the failure to reach agreement on what the value of a case is or sometimes just to avoid the statute of limitations. If after filing a settlement reached with the other side in which point my percentage is a third.
Then sometimes you actually go to arbitration and/or trial at which point the percentage goes up to 40%.
The percentage of the recovery is determined based on how far into the legal process you have to go to resolve the case. Obviously, the amount of attorney time and work varies considerably over the course of the case and it becomes much more time intensive once a lawsuit is filed.
The other aspect that should be kept in mind is where your own insurance company has paid medical bills and sometimes wage loss benefits depending on your situation, then your insurance company has what’s known as “an inter-insurance arbitration procedure” available with the other side’s insurance company.
They recover those damages on their own and I don’t assert a fee against that money. It’s only what is recovered over and above that I assert my percentage against.
In An Auto Vehicle Accident, What If The Other Person Does Not Have Insurance?
Daniel Hoarfrost: Assuming you have your own insurance, there is a part of the coverage known as “uninsured motorist coverage.” Your own insurance company is going to step in and pretend like they’re the insurance company for the other driver. You present a claim to them and it basically proceeds in the same way that it would if the other driver had insurance.
Frequently, the insurance companies are a little easier to deal with if it’s their own client that they’re negotiating with, although this is not always the case. The only proviso is that your coverage is limited by your own policy limits. Whatever policy limits you have on your own insurance coverage is going to be the maximum that you can recover through that process.
What Are Some Of The Common Misconceptions People Have About Personal Injury?
Daniel Hoarfrost: The main question people have is are they really going to end up receiving less money if they hire the attorney and give the attorney 25% to a third of their recovery? The answer really is that the insurance companies tend to approach the cases differently when a person is un-represented than when a person has an attorney.
The only reason that insurance companies give you any money is that you have the right to file a lawsuit and go in front of a jury and have the jury give you some compensation for the case.
If you don’t have an attorney that’s really an empty threat and the insurance companies know that. They’re in this business to make money for their company, not to make sure that you receive fair compensation.
They typically will offer the least they think they can possibly offer when a person’s trying to take care of a case themselves. I can say with relative confidence that even after the percentage is taking out for the attorney fee, you’re going to recover more being represented.
What Fears About Attorneys Do People Have When It Comes To Personal Injury?
Daniel Hoarfrost: The main fear, of course, is that the people worry that they’re going to end up paying all their money to the attorney and not receive anything for themselves and/or even end up owing money because of the case.
While it is theoretically possible to file a lawsuit and incur a lot of cost because there are out-of-pocket expenses that are actually cash expenses that are not part of the percentage—it’s theoretically possible to spend a fair amount of money and not recover anything. In that case, you’re actually have lost money rather than recovered money.
I can say that in 30 some odd years of practice that’s never happened to me. The reason is I try to make sure that my clients benefit from my services.
During the whole process while the case is pending, you’re reviewing evidence and there’s always a negotiation process going on. It’s a question of how certain you are that there’s going to be a recovery and how confident you can be that a certain amount of money might be available so it justifies the expense involved of getting from point a to point b.
I’m always aware that people are actually on the hook for expenses and that it should be a cost effective procedure. So far I can truthfully say that I have never had a client that lost money because of the way we processed the case.