One common defense is to suggest that the victim suffered from similar injuries before the accident, or that the victim was predisposed to the type of injury he or she suffered.  We at Davis Law Group have had cases where the insurance company actually relied on a medical record that pre-dated the motor vehicle collision 15 years earlier!  Even though are client was symptom-free for more than 12 years, the insurance company still tried to argue that her “pre-existing” injury predisposed her to an injury 15 years later in the car accident!  That gives you some idea as to how absurd some of the defenses the insurance company will allege.

Yet another defense is to try to prove that the victim’s injuries were not caused by the accident, but by other events in the victim’s life (e.g., a prior fall, prior accident, or some other medical condition). When insurance companies cannot dispute fault for the accident they may resort to the age-old tactic of attacking the accident victim’s character or preexisting medical history.

A good lawyer will successfully challenge these common defenses and help the victim present his or her injuries clearly, concisely and coherently.

For example, even if you suffered from a similar medical problem (such as a back or neck condition) before the accident, your lawyer can help you prove that your previous injury was made worse as a result of your accident.

 Washington law supports the premise that a wrongdoer “takes his victim as he finds him.” This means victims are entitled to recover full compensation even if they were particularly susceptible to an injury, or predisposed to experience greater pain or suffering than could have been foreseen by the defendant.

For example, you have a bad back that never required surgery, but then you are involved in a serious car accident that aggravates the back condition enough to require surgery, you are entitled to recover compensation for the surgery. After all, you would not have needed it if the accident had never happened.

If you have a claim where the insurance company seems to be looking for any fact, circumstance or excuse to deny your claim or lessen its value, it’s time for you to speak with an experienced attorney.  Don’t try to fight the company alone.  With its vast resources and knowledge, the insurance company can be a very formidable opponent.  The things you do or say early on in the claim process can make a difference on whether you achieve a successful outcome.

You should understand how insurance works in Washington State. There are two types of auto insurance systems in the United States, and which one you use usually depends on where you live. Most states are at-fault or tort states.  This means the at-fault driver is legally responsible for any injuries and financial costs caused by the accident. The other driver’s insurance policy is supposed to pay those costs, but you may have to sue the other driver to get payment if the facts are in dispute.

In Washington we also have no-fault auto insurance coverage. If your insurance policy has coverage called Personal Injury Protection (PIP), your own insurance company is required to pay for certain damages (like medical bills and lost wages) regardless of who’s at fault for the accident.  This is important coverage because it requires your carrier to pay for these expenses when they are due.  However, this coverage is limited by the terms of your insurance policy. 

Most people who have PIP will have coverage of at least $10,000, but some may have the maximum of $35,000 (as of the date of this writing).   Also, most PIP policies will only pay up to 85% of your lost wages starting two weeks after the accident.  You should read your policy carefully to understand what other limitations and/or restrictions may apply.  If you have questions you should speak to an experienced personal injury lawyer.

After you receive medical care and recover from the immediate effects of your accident, one of the first things you should do is call your insurance company. You will probably also have to call the other driver’s insurance company and let them know that an accident has occurred and a claim will be pursued. You should make that call as soon as you reasonably can, because waiting too long might make it look to the insurance company like you are exaggerating your injuries. Calling quickly is also part of your obligations under the contract you signed with your insurer.

This first call should be fairly short. Its purpose is only to give the insurance adjuster the basic facts about your accident and the information for the other driver’s insurance company, if there is one. In fact, during the call, the insurance adjustor on the other end should never ask to record you or ask you to sign anything, especially in exchange for money. If you get this kind of request, you may be dealing with a dishonest company; you should politely decline and call a lawyer as soon as possible.

During your initial call, the insurance adjustor will probably ask you who was at fault for the accident or who was to blame. She might also ask if anyone got a ticket. If this is disputed or you truly are not sure, just stick with the facts.

During this first conversation (or any other conversation) with an insurer, it is important to avoid apologizing or accepting blame just to be polite, because that could be taken as an admission of guilt. Also, if you were knocked unconscious or taken to the hospital, you may not have gotten the full story. One way to get it is to obtain a copy of the accident report made by the police (if one exists). If they will not release it, your insurance adjustor can get it for you and use it to start your claim. 

Most experienced personal injury lawyers understand that a settlement should not be rushed, particularly if one desires a good settlement. Settling a case is often a process. Good settlements usually take time and effort.  The process can be complex and take many months or even years. Different lawyers initiate the process in different ways (who goes first and so forth), but it always ends up with an offer and a series of counteroffers and counter-demands. However, the numbers passed back and forth are based somewhat on reason given the facts of the case.  A good lawyer will prepare the case for trial in an effort to get the best settlement possible.  The settlement offers and counteroffers will be based on the evidence that each side expects to present and hear at trial.  A party that has prepared a strong case for trial may be in a better negotiating position when it comes time to settle the case.

Deciding whether to accept a settlement offer requires you to consider subjective as well as objective factors. For example, there are benefits to ending your claim sooner rather than later.  Litigating the case can take a high toll emotionally.  On the other hand, the time, anxiety, energy and risk assumption required to go to trial may be worth it for the client —because of the potential for greater compensation. Client objectives vary, and each case and each client is different. The settlement process offers an opportunity for dialogue — and out of this dialogue comes a decision that fits the client in that case.

There are numerous factors to think about when considering a settlement offer, but issues to consider start with the amount of money being offered, the conditions attached to the offer and the amounts owed to third parties — like health care providers, other insurance companies and lienholders. There are laws and contractual obligations that govern these third parties’ rights to participate in the distribution of settlement proceeds. These rules are part of every settlement agreement, and you are expected to know them. An insurance company has no duty to explain the rules to you. Third parties such as health care providers might also claim part of your settlement behind the scenes.

A settlement offer is always measured against this one question: “What will a jury do in your case?”  No one knows for sure of course.  But the reasonableness of a settlement offer is whether a jury may award an amount close to the offer or some amount that is much higher or lower.  If your lawyer believes it may be difficult to get a jury to award much higher than the offer, then the settlement offer should usually be accepted. 

There is also a difference in the settlement value of a case versus the actual value a jury may decide.  The settlement value of a case is always less than the actual value of a case.  This is because the settlement value takes into account the enormous expense and risk of going to trial.  The settlement value is always a judgment made by the parties.  The settlement offer has to be high enough to persuade the claimant to accept the offer to avoid the increased risk and expense of going forward with litigation and a trial.  For example, if there is a strong defense concerning liability (i.e., the defense can show that a jury might not find the defendant at fault for the accident or find that the plaintiff shares a good portion of the fault), then the settlement value of case will be reduced even further to reflect the risk that no fault or little fault may be assessed against the defendant.  Insurance companies will always evaluate settlement value lower than what a jury verdict might be.  Again, the insurance carrier knows that the plaintiff will incur risk and expense by going to trial so the offer will reflect these uncertainties. 

Other considerations involve what debts, claims or other liens might exist against your settlement recovery. Your lawyer’s job is to get a settlement offer that will take care of any and all deductions that must come out of your recovery.  If the settlement offer is not sufficient to pay all of these debts, you may be liable for the rest. Sometimes, your lawyer can help by negotiating or using other remedies available under the law to make sure all of your obligations are covered. Depending on the circumstances, your lawyer might be able to convince creditors to take a lesser amount in exchange for immediate payment. But because this is an uncertain process, it is important to discuss your debts and obligations with your lawyer when analyzing a settlement offer. 

There are no hard and fast rules to tell you whether the claim is small.  Generally, a small claim is one where (1) the accident is minor or the property damage is small or insignificant, (2) the injuries are minor and/or they are not considered permanent, (3) the medical treatment lasts no longer than a few months, and (4) the medical bills do not exceed a few thousand dollars.  If one or more of these factors exist then there’s a good chance the claim is small enough to settle on your own.

WARNING: By settling the case on your own, you accept the risk that you may make a mistake that could irreparably damage the value of  your claim.  Some mistakes cannot be “undone” so getting a lawyer involved after the fact may be of little benefit.  You must know that there are many cases that should involve an attorney, particularly if the accident was severe, the injuries are permanent and/or significant, and the special damages (or medical bills and lost wages) are many thousands of dollars.  Many people don’t want to hire a lawyer so they can “save money.”  But the money that is lost due to a mistake made during the claims process could be much more significant than the expense of hiring an attorney.  You should first seriously consider the risk of settling your own claim before proceeding in this way.

Here are some general guidelines for those people who have a small personal injury claim and wish to settle the case on their own:

1. Collect all evidence to support your claim.  This may include the police report, photographs of the vehicle(s), paystubs, tax returns, medical records and bills, property damage estimates, witness statements, etc.  The insurance company relies on documentation to support the claim.  If you don’t have documentation to support your claim or some of the damages being requested, the insurance adjuster will refuse to consider it.
2. Communicate in writing with the insurance company.  You should keep track of your communications with the adjuster in writing.  Be brief and to the point.  Refrain from talking about the merits of your claim until you are ready to settle.  Written communication leaves a paper trail that may be beneficial to you if there’s a dispute about was said or not said.
3. Focus on your medical treatment.  If you’re hurt, get medical treatment.  Do not skimp, or miss appointments.  Do not try to settle the claim until your medical treatment has concluded.  Do not discuss your medical treatment with the adjuster.  He or she will receive your medical records soon enough.
4. Prepare a thorough settlement demand package.  See No. 1.  With your documentation, you must provide a comprehensive settlement demand package which includes copies of all items that support your claim for damages.  This includes your medical records and bills, collision report, property damage estimates, photographs (of injuries and/or vehicles), wage loss documentation (paystubs and/or tax returns), witness statements, etc.  If you are claiming other expenses, then you should provide receipts or other written documentation to prove that these expenses or costs or damages have been incurred.  Your settlement demand should contain a brief description of the accident, and why the other party was negligent or at fault.  Your damages should be itemized and explained.  If you are claiming general damages, or pain and suffering, then you should describe the facts and circumstances to support this part of the claim.  Statements from family members and other people familiar with your life and the way your injuries have affected you can be persuasive.
5. Be prepared to negotiate.  Settling a personal injury claim takes skilled negotiation.  It is not unlike the process of buying a car because typically there is back and forth negotiation about the value of the claim and how much of a settlement you’re prepared to accept and how much the carrier is prepared to pay.  If your settlement demand package is thorough, well-organized, and amply supported by pieces of documentation, then you will have enough leverage to negotiate a favorable recovery.

Remember, not every case needs a lawyer.  Usually the very small personal injury claims can be resolved without the assistance of a lawyer.  If you don’t know whether your case is small or large, than by all means speak to a reputable personal injury lawyer.  Most lawyers or their staff in this field will at least speak to you over the phone and advise you whether you can benefit from the assistance of attorney or not. 

Good luck.

Attorney Brenda Hollingsworth of the Auger Hollingsworth law firm in Ottawa, Canada recently reported on an accident involving 5 bicyclists who were all mowed down by a van that never stopped and sped away.  Tour de France champion Lance Armstrong learned of this serious accident and actually commented on the incident through is video blog.  Lance said, “…anytime you have  that interaction of bikes and cars, you never know what can happen.”  Well said Lance, and very, very true.

So, we all need to be careful no matter where you are.  The increase in bike accidents during the summer is not just a local phenomenan, but one that is seen nationally and in other countries.  Let’s all be safe while driving and/or biking!

Parents should always teach their children to wear bicycle helmets while riding their bike.  Children, especially those under the age of 12, should never ride their bikes on or near city streets after dark.  Parents also need to teach their children the simple rules of bicycle riding:

1. Avoid riding on busy streets.

2. Never cross busy intersections while riding the bike, a child should dismount and walk the bike across the street in a crossing zone.

3. Teach children to understand and obey traffic control signals and signs, like the Stop and Yield signs.

4. Children should wear bright clothing so they are visible to motorists.

5. Teach children to assume a driver cannot see the child riding the bike, so the child should always make eye contact with the driver when approaching.

6. Try to locate a safe area for your child to ride, like a park or culdesac where there is no traffic.

Unfortunately, child bicycle accidents increase when the weather in Washington improves.  That’s why parents need to be diligent on teaching their children safe habits while riding. 

Davis Law Group founder and Seattle attorney Chris Davis has published a book “Little Kids, Big Accidents” that gives valuable information on child injury accidents and how to prevent them.  The book also is an important resource for parents who want more information about the insurance claims process and how the legal process for child injury claims works.

How does the current economy affect the litigation and personal injury claims process?  I have seen some changes just in my own practice.  Insurance companies, like most other corporations, are tightening their belts and looking for ways to cut costs and retain more revenue.  For insurance companies, one way they do this is by trying to cut down on claim payouts.  This refers to the amount of money a carrier has to pay out to settle and resolve claims.  Some companies have thousands, or hundreds of thousands, of claims.  So reducing the average claim payout can actually save the insurance company millions of dollars.

In my own practice, I see that most carriers are reducing the amount of payouts for injury claims.  This has ranged anywhere from 10% to 50% in some cases.  In a few cases I have seen an outright denial of a legitimate claim based on some small or weak defense that never would have happened a year ago.  For example, a person who had an injury 10 years ago but made a full recovery.  This fact now becomes a major issue for the insurance company because it can argue that some or most of the medical care or symptoms were due to a pre-existing condition.  Sounds ludicrous I know.  But the carriers are making these type of ludicrous assertions just to save money.

The indirect result is to force claimants and their attorneys to file more lawsuits.  A lawsuit is expensive and can take up to 2 years just to get a trial date.  That means the insurance company is holding onto its money a lot longer and is able to use it for investment or to pay down other debts.

I’ve filed 7 lawsuits just in the last 45 days.  I only average about 1-3 new lawsuits every 60 days or so.  But because the carriers are now reducing payouts by as much as 50%, my clients are forced to litigate just to recover a fair amount of compensation to pay medical expenses and make up for lost wages and other incidental damages.  In one significant injury case, the carrier took 4 months to respond to a settlement demand.  Then proceeded to deny the claim entirely, even though its own insured was the sole cause of the accident according to the police report!

One insurance claims adjustor friend of mine told me that his superiors told his department that the goal was to reduce claim payouts by 30% over the next twelve months.  And that adjustors would be paid a bonus for each month they met this goal.

Now more than ever do accident victims need to retain experienced and competent counsel to help them with significant and legitimate injury claims.  My office has also seen a spike in new client inquiries and sign-ups, presumably because unrepresented claimants are finding it impossible to settle a claim on their own now that the insurance industry is tightening its belt.

Washington law also requires bicycle riders to use appropriate hand signals when turning left or right, or when stopping.  See RCW 46.61.758.

A frequent question I hear is where is the bicycle rider legally permitted to ride?  On the street?  On the sidewalk?  Well, Washington law states that every person operating a bicycle upon a roadway at a rate of speed less than the normal flow of traffic shall ride as near to the right side of the right through lane as is safe except as may be appropriate while preparing to make or while making turning movements, or while overtaking and passing another bicycle or vehicle proceeding in the same direction.  See RCW 46.61.770.

The law also states that a person operating a bicycle on a one-way street that has two or more marked traffic lanes, may ride as near to the left side of the left through lane as is safe. A person operating a bicycle upon a roadway may use the shoulder of the roadway or any specially designated bicycle lane if such exists.

Washington law is clear that bicycle riders must exercise appropriate due care and caution just like motor vehicle operators.  This means bicycle riders have a duty to avoid causing a collision, and not to engage in conduct that is considered careless or negligent. 

The right-of-way between a bicycle and motor vehicle is often highly dependent on the facts of the situation.  Therefore, a serious accident involving a bicyclist and a car must be investigated thoroughly.  Witness statements should be obtained.  Sometimes an accident reconstruction expert should be involved immediately to inspect the scene, record skid marks and take other measurements, so enough evidence is collected to prove liability.

This information is a service of the Seattle personal injury firm Davis Law Group.  The attorneys at Davis Law Group specialize in representing injured bicyclists who have been victims of motor vehicle crashes.