QuestionMy boyfriend was driving and I was the passenger back in October 2009, he hydroplaned and lost control while speeding. We hit a light pole and flipped into a ditch. I didn't know anything about bodily injury back then as I am only 20 and not very knowledgeable when it comes to insurance information. I just wanted to know, since it is now January 2010, could i still file bodily injury. I had surgery to repair a shattered collar bone, by placing a plate and 5 screws across my shoulder. I also missed 9wks of work due to these injuries. My personal health insurance covered most of these bills, but nothing replaced my salary for 9wks and I ended up losing my apartment because of not being able to get to work and pay my rent for a the month of November. If you could please give me some advice on where to start, if I can even still claim anything, seeing as how it's been 3 months.
Thank you for your time, if anything.
AnswerHi Kirsten,
First off, let’s be thankful that—as bad as they were—your injuries were not even worse, having survived a high speed-hit on a pole and flipping over. You did, however, suffer some very serious injuries, Kristen, and I am glad that you are seeking some information on your rights to make a claim.
Because you do have such serious injuries and because you are totally clueless on both your rights and how to process a claim, I am going to give you a full hour and a half of my time to lay everything out for you in detail. I hope my writing is understandable and not too confusing for you .
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There are FIVE sources of insurance money (2 coverages in his insurance, 2 coverages in your insurance, and your health insurance). And there are basically only THREE reasons to pay out money (medical expenses, wage loss, and general damages for pain and suffering and loss of enjoyment of life).
Let’s take the easiest topic first. What are the five sources of insurance money available to you? Definitions: “First party” means you are making a claim versus insurance based upon your contractual rights. For example, versus your own insurance or verses your boyfriend’s insurance coverage for passengers. “Third party” means you are making a claim versus an insurer on the basis of a tort. For example, a claim of negligence versus your boyfriend’s insurance would be a third party claim.
First is your boyfriend’s first party medical (and possibly wage loss) coverage, called Personal Injury Protection (PIP) or Med/Pay. In the majority of at-fault states (and no-fault if you have no insurance), this coverage will pay medical bills (up to the limits of the coverage) and wage loss ( in PIP). These are “special damages”, and do not include any pain and suffering compensation. The wage loss payments are usually 85% of actual loss, starting the first day after a two week wage loss qualification period. It is NOT TOO LATE to make that claim, but the contract WILL most likely spell out a shorter time than your state statute of limitations, so be SURE to find out what that time is.
Second is your own party medical coverage, called Personal Injury Protection (PIP) or Med/Pay. Again, this is a first party claim for medical costs and wage loss (PIP), with the same two week wage loss qualification period. These are “special damages”, and do not include any pain and suffering compensation. They will try to make sure that your boyfriend’s limits have been exhausted before they pay a dime. It is NOT TOO LATE to make that claim, but the contract WILL most likely spell out a shorter time than your state statute of limitations, so be SURE to find out what that time is.
The third policy to make a claim against an insurer is versus your boyfriend’s Bodily Injury Liability (BI) coverage. You must allege that he was negligent in his driving, and that as a direct consequence of his negligence, you sustained injuries. This claim will be the largest of your claims inasmuch as it is for all damages not covered by the first party coverage (i.e. excluded wage loss, etc.), AND general damages (pain and suffering and loss of enjoyment of life).
Note that your claims under his BI will be for such damages as you HAVE suffered AND as your doctor opines you WILL suffer in the future. His BI coverage has a policy limit. In most states that is like $25,000. Since your claim for general damages SHOULD exceed that amount, you will then be making a claim versus your OWN Underinsured Motorist Coverage (UIM).
So your UIM is the fourth place to find insurance coverage. Check with your agent or your state insurance commissioner http://www.settlementcentral.com/links.php
to learn how much coverage you have since in many states you get UIM coverage only if your UIM limits are in excess of the tortfeasor’s BI policy limits. It is NOT TOO LATE to make that claim, but the contract WILL ATTEMPT to spell out a shorter time than your state statute of limitations, so be SURE to find out what that time is. NOTE: in many states those shorter contractual times are held to be trumped by the (usually longer) times specified for written contracts).
The fifth place to get insurance money is your own health insurance company. You already have tapped that resource. But, Kristen, I want you to learn about subrogation since there is a chance that you could fight the right of your insurer to be repaid out of your personal injuy insurance award, DEPENDING upon the total automobile insurance policy limits available to you. Introduction to subrogation http://www.settlementcentral.com/page0459.htm
insurance payback from your insurance injury claim settlement.
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Know Your Rights as a Passenger in an Auto Accident.
You have certain FIRST PARTY rights via HIS contract of insurance, as I detailed above for you, Kristen.
In addition, you have the THIRD PARTY right to claim against him for negligence. You have every right as a passenger to expect that your driver will exercise all due care and caution in the operation of his vehicle.
DO NOT EVER LET THE ADJUSTER REDUCE YOUR PASSENGER'S BODILY INJURY AWARD BASED UPON THE NEGLIGENCE OF YOUR DRIVER.
Your claim CANNOT BE REDUCED because of the negligence of your driver. Fight Charges of Your Comparative Negligence.
What if the insurance adjuster for your boyfriend tells you that your award will be reduced because you were comparatively negligent? Depending upon the facts, he will tell you that you knew or should have known that your boyfriend was impaired (i.e. maybe intoxicated) and not in any shape to drive, and thus you assumed the risk of an accident.
Tell him he is wrong, and you will not reduce your insurance award by one dime. Tell him that although you were aware your boyfriend was drinking, you did not see any sign of intoxication. Give him specific examples of how well your boyfriend did certain things before you got in the car, etc.
ON THE OTHER HAND, if in fact you got into the car and THEN discovered that he was not competent to drive and you kept asking him to pull over so you could drive or so you could get a ride home, you should be sure to mention that to the adjuster.
The point is: fight any conclusion that you assumed the risk; do not accept any reduction at all from FULL the insurance settlement that you are entitled to.
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Should you bring a claim versus your boyfriend? What will it do to his insurance rates? Who gives a rip about HIS insurance rates? The doofus was speeding and his negligence caused you injuries that will haunt you for the rest of your life. He had the obligation to look out for your safety and he screwed up big time—so for now, you will be making a claim versus your boyfriend for his negligence that caused your injuries.
Don't shy away from this claim: he injured you. Yes, you may spend a lifetime together, but perhaps it is more likely that five years from now you two will not even be in touch with each other. Since you have lifetime serious injuries—including even soft tissue injuries we have not discussed—you may still be suffering pain, but you will have given up any chance to be compensated for your pain if you either fail to make a claim or if settle light just to please your boyfriend. If he is any kind of a caring man, he will understand that you should be FULLY COMPENSATED for the injuries he caused.
OK, now that we have taken a tour of the claims alternatives you have, let’s look at one good defense your boyfriend’s insurance could raise against your claim. This is the defense of collusion.
Avoid Collusion Between You and Your Boyfriend Regarding Your Insurance Claim Against Him.
Can your boyfriend be a witness to the difficulty you have had in dealing with your injuries? Yes, he can so testify. Can your boyfriend try to lie to say that you never knew he was drinking so much, or lie that you kept telling him to pull over but he refused? NO!
There is a line between giving testimony to facts and collusion between a claimant and the insured. Your boyfriend has a duty to his own insurer to cooperate fully with them and to avoid collusion with anyone claiming against his policy.
Collusion is fraud, and it can result in the injured person losing any right to be paid for her injuries.
A safe rule would be for the two of you to agree that you will not discuss your claim with him, and that includes ALL ASPECTS of your claim, from demand letter to negotiations. But don't take this rule to preclude using his testimony to prove the extent of your injuries. Those are simply his observations of your activities, and there is nothing wrong with him giving testimony of what he saw.
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Making an Insurance Claim Against Your Boyfriend WILL NOT Raise His Insurance Rates—He Already Did That ALL BY HIMSELF! His company has already noted this as an at-fault chargeable accident, so there is not one dime of additional damage to his rates that you will do by making your claim against him as a negligent driver.
Hopefully your boyfriend will not even bring up this topic. But maybe you can bring it up just so he will not worry that your making a claim will raise his insurance rates. All you have to tell him is that the accident itself has already been recorded and rates will not go up any more than they are already going to be raised even if you are awarded full PIP and BI policy limits.
So, no matter how much you get paid on your insurance claim, his rates will not go up one dime because of your claim. He will be paying increased rates already because of his property damage claim.
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Since you are going to make a claim, why not learn about how to do it yourself and then if that does not appeal to you, hire an attorney. DO NOT go it alone without some kind of knowledge base that will help to guide you.
Learn about how to submit and settle your own personal injury insurance claims—DO IT YOURSELF SETTLEMENTS.
Here is a series of pages that you can review. Take what makes sense to you and don't worry about the rest. Just get a flavor of how the system works without spending a ton of time right now.
Overview Tort Law Personal Injury Legal Claims http://www.settlementcentral.com/page3000.htm
Managing Medical Care After Auto Accident: http://www.settlementcentral.com/page0203.htm
Medical Care Documentation-the Key to Successful Personal Injury Insurance Claim Settlements http://www.settlementcentral.com/page0217.htm
Keys to a MAXIMUM INSURANCE INJURY CLAIM SETTLEMENT http://www.settlementcentral.com/page0089.htm
By the way, did you know that getting an early settlement is a favorite trick of the insurance adjusters? Please see my website wherein we show Insurance Claim Adjuster Secret Tactics http://www.settlementcentral.com/page0092.htm
Responding to Settlement Offer From Insurance Claims Adjuster http://www.settlementcentral.com/page0244.htm
Do It Yourself Advantages, or do these claims need an attorney? As for an ATTORNEY, this does not seem to be a case that involves any legal issues in dispute nor any large or complex damages. Why should you pay someone one-third to do what you can do yourself? Do-It-Yourself Personal Injury Claims; Eliminate Personal Injury Attorneys' Fees; Save Thousands of Dollars Settling Your Own Insurance Claim http://www.settlementcentral.com/page3011.htm
Without having to join my website, I have given a lot of free information on handling insurance claims without having to join as a member. Read the module at "5 Easy Steps to Do-it-Yourself Insurance Claim Settlement" http://www.settlementcentral.com/page0102.htm
This stuff is not rocket science, but it will take some effort on your part to read and cut and paste letter examples and to communicate. But hundreds of people are doing it each day, and they are getting good results.
What if you get only two-thirds the way to your settlement goal? Well, you can get as big a settlement as you can and then turn it over to an attorney and save a lot of fees. Thus, you could go it alone just to get an insurance settlement offer, and then take that insurance settlement offer to a personal injury attorney, thus exempting the amount of the offer from her fees. Do It Yourself Personal Injury Settlement Offer Reduces Personal Injury Attorney Fees http://www.settlementcentral.com/page0109.htm
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Learn how to communicate with the insurance adjuster: FINAL TOPIC—COMMUNICATE IN WRITING AND "DEMAND" NOT "ASK"
FINAL TOPIC, Kristen: Effective communication with insurance claims adjusters. Establish Firm, Professional, and Positive Relationships With the Insurance Injury Claims Adjuster http://www.settlementcentral.com/page0059.htm
Always communicate with the adjuster in writing, showing your own analysis of value. It is OK I guess to have one call or so, but no more. Always have your information and ammunition in writing to give to the adjuster. E-mail is the preferred means since it is fast and provides evidence of what was said.
Let her know that you are FIRM IN YOUR RESOLVE to get what you are demanding (NOT "asking", since that invites a counter-offer, but instead "demanding" as fair and reasonable compensation) by asking her what the options are to resolve the matter fairly should he not agree to a reasonable claim value. In other words, let her know that you will go through with a court filing if need be.
Remember these tips, do your homework, print out your evidence, show resolve to get your fair settlement, and you will DO JUST FINE.
I trust that my extra time here has produced some information that has been of value to you, and thus I would respectfully request that you take the time to locate the FEEDBACK FORM on this site and leave some feedback for me.
Best Wishes,
Dr. Settlement, J.D. (Juris Doctor)
http://www.SettlementCentral.Com
