Have You Been a Victim in an Orange County Car Accident?
Most car accidents are caused by someone's avoidable negligence. Where a driver has "rear-ended" your car and caused injuries the neglect is clear and responsibility rests with the driver behind. There are few exceptions to this rule, but the law presumes the driver of the car hitting the one ahead was negligent. Additionally, where another driver has driven through a stop sign or red traffic signal and collided with your car the party violating your right of way is at fault. Finally, if a driver turns left in front of your vehicle causing a collision that left-turning driver is almost always at fault. These are just some of the types of accidents we all encounter on the busy roadways of Orange County. While they all seem relatively cut and dry, they can become complicated when insurance companies do their best to defend their careless drivers.
For example, in a recent Orange County case handled by this office, a left-turning driver raced through a yellow and then red light to make his turn. Unfortunately, in doing so he violated an innocent driver's right of way coming from the opposite direction. This lead to a serious collision that totaled both cars and left the "straight-traveling" driver and his passenger badly injured. Incredibly, despite an independent witness confirming who had the right of way and a police report favorable to the clients, the turning driver's insurance company denied responsibility. Ultimately, the insurer had no choice but to pay the claims and abandon their baseless position.
What to Do After a Car Accident to Protect Your Rights
As can be seen from the above example, sometimes a careless driver's insurance carrier will deny responsibility even in the face of independent evidence and a favorable police report. Consequently, it is always a good idea to gather as much evidence at the scene of an accident as is reasonable and safe under the circumstances. Photographs should be taken of the points of rest (if possible) and the property damage to all vehicles. Not only will this assist in determining fault, but it may also help to establish the severity of the impact. Believe it or not, it is the force of the impact that is often the focus of the insurance carrier's attention.
Insurance companies and defense attorneys for careless drivers will often argue (if they can't really challenge responsibility) that the collision was not enough to have caused any injury. For example, they may conveniently focus on the damage done to the victim's car if it does not appear that substantial. Sometimes a strong bumper or trailer hitch will protect the rear of a car from substantial damage while causing considerable crumpling and damage to the "rear-ending" car. The insurance company or attorney will then try to focus on the injured party's car while ignoring the sometimes catastrophic damage to the at-fault driver's vehicle. Pictures of BOTH vehicles after an accident can go a long way to defeating such arguments. In addition, much weight is given to the cost of repair to the involved vehicles, and that is why it is terribly important to make sure all damage sustained in an accident is brought to the attention of the repair facility.
In addition to taking pictures, you can protect yourself from an unfair evaluation of your claim by NOT giving a recorded statement to the adverse driver's insurance company, not without your attorney participating. Insurance adjusters know exactly what they are looking for to defeat a claim, and this gives them an unfair advantage. They also like to contact claimants shortly after an accident to best ensure not all of the injuries and damages will be included in the claimant's statement. Injuries sometimes take weeks or even months to develop. What takes even longer is the medical treatment necessary to resolve the injuries sustained in an accident. By taking a statement soon after an accident, the insurance company representative is hoping for a less than complete picture of all of the injuries and treatment, thereby diminishing the value of the claim.
How The Claim Process Works
Following an auto accident, injured parties often wonder what needs to be done to move forward with presenting a claim for the injuries and damages they suffered. In general, claims begin with simply reaching out to the other party and their insurance carrier. A letter of representation directly to the party or their carrier will prompt the insurer to open a file and assign the claim a number. That line of communication is then established and the investigation then begins, on both sides.
Perhaps the first step in the investigation of a claim is to obtain a copy of the Traffic Collision Report from the involved law enforcement agency. This tends to narrow down the liability issues (if there are any) and can also lead to the identification of witnesses and other evidence. Statements of the parties are almost always included, and this too can be helpful in identifying the likely defense from the at-fault driver. If the police were not contacted after the accident, then witness statements and photographs of the damaged vehicles becomes that much more important to determining fault.
After fault has been adequately established, the next phase of the claims process is in presenting the claim for injuries and damages to the adverse insurance carrier. This rests almost entirely on the completion of the injured party's recovery and medical treatment. Once the accident-related treatment is complete and the medical records and bills have been obtained, then those records much be reviewed to determine the precise nature of the injuries and whether future medical care may be needed. Before a settlement proposal can be presented to the carrier, an estimate of the future care (if any) must be made for inclusion in the demand for compensation.
What about lost wages? If an injured party has a documented disability and actual time lost from work as a result of the accident, this is another element of damages. The real issue is often whether the injuries actually gave rise to a need to stay home from work. Insurance carriers are notorious for discounting lost wage claims so presenting substantial evidence (both medical and employment records) are often necessary to obtain this element of damage. If the injured party wasn't working but had the ability to earn a living taken from them as a result of an accident, they may be entitled to bring a lost earning capacity claim.
When all of the necessary documentation has been obtained and evaluated, it is time to present a settlement proposal to the adverse insurance carrier, and the negotiation process begins. Most injury cases settle without the need for formal litigation, but a lawsuit is sometimes necessary to bring a carrier to the negotiation table.
What About a Lawsuit
If informal negotiations with the insurance carrier fail to secure an acceptable settlement offer, then filing a lawsuit may be the next step toward resolution. While most litigated cases settle prior to trial (and often early in the process), some auto accident cases must be tried to a jury. Below is an overview of the process.
The first step in litigation is to file the lawsuit (a complaint) with the court having jurisdiction. For accidents happening in Orange County, the courthouse in Santa Ana is where the complaint must be filed, with very limited exceptions. Once filed, the summons and complaint must be served on the defendant or defendants. From there, the lawyers for the defendants will take over the day-to-day handling of the file, even though they typically answer to the insurance carrier. This is particularly true when it comes to settlement offers being made after the lawsuit is filed.
Sometimes the most troubling aspect of the litigation process can be the timing. Lawsuits usually take at least two years to wind their way through the system and to a trial. However, most lawsuits settle somewhere along the line during the litigation process and after at least some formal discovery (such as interrogatories and depositions) have been completed. It is fairly common to see meaningful settlement negotiations commence only after the injured party's deposition testimony.
If a civil jury trial proves necessary to resolve an automobile accident case, then a jury of twelve people will be assembled to hear the matter, with a civil panel judge presiding over the process. An accident case can usually take about 5-7 court days (1 1/2 to 2 weeks) to try to its end and for the jury to reach a verdict. Such trials typically involve the use of expert witnesses which adds considerable expense, which is one of the reasons the parties to a lawsuit try to avoid trial if possible.