Were You Injured in a Car Accident? Maximize Your Compensation.
Were you injured in a car accident as either a driver, passenger, pedestrian, or on a motorcycle or bicycle? We will discuss 22 tips on how to maximize your personal injury case compensation.
Whether your injuries are relatively minor, such as whiplash, sprains, strains, or bruises or are major such as broken bones or paralysis, it’s important to identify how you can increase the value of your personal injury case.
Before we go over the list of ways to maximize your compensation, let’s first discuss what are the categories of compensation or “damages” that you are allowed to recover under the law:
This is often the largest part of your “economic damages.” Economic damages are those that are easily quantifiable into a dollar figure. You are entitled to be compensated for all your medical expenses that you accrued as a result of the accident. This includes past out-of-pocket medical bills such as prescription pain medication you paid for at the pharmacy, medical bills that your health insurance / Medicaid / Medicare paid for, and any outstanding medical expenses.
In addition, any future medical expenses that you can prove you need after you settle your case and beyond can also be included in your damages.
Another part of your economic damages—past lost wages—include any lost time you missed from your job as a result of the accident. This includes the time for which you didn’t get paid, vacation time you took, and sick time that you used.
Lost earning capacity is also a subcategory of lost wages and is the lost earnings you will experienced in the future as a result of your injuries. You’ll likely need proof from a vocational economist to prove your expected earning potential in the future.
Physical Pain and Suffering
Past and future physical pain and suffering are often the most well-known type of “non-economic” damages. Non-economic damages are those damages that are not so easy to quantify. Just think how difficult it is to place a dollar figure on someone’s pain.
Physical pain and suffering is the physical pain that you feel as a result of your injury. Sometimes this is bunched in with mental or emotional pain or anguish, but this is a distinct category of damages that is a recognizable part of your personal injury compensation. The difference between the two is that physical pain and suffering strictly concerns the actual physical pain that an injured party feels from a physical injury and mental or emotional pain or anguish is the mental effects that the pain has on the injured party.
Mental or Emotional Pain or Anguish
Past and future mental or emotional pain or anguish, as mentioned above, is strictly the negative mental effects that the injury has on the injured party’s mind. This could include the feelings an injured person has when they think they may never be able to walk again without a cane or limp.
Loss of Consortium / Loss of Companionship & Society
Loss of consortium / loss of companionship and society are the damages that the family of the injured party can recover from losing the benefits of the relationship from the injured party. This claim piggybacks onto the underlying personal injury claim of the injured party, but is strictly the spouse’s or family member’s claim, not the injured party’s him/herself.
Disfigurement damages is the compensation for the scarring and the lasting physical traces of the injury left behind on your body. This includes scars, loss of limb or other body part, burns, and skin grafts. The disfigurement can be from the primary injury or from the effects of the required medical intervention on the injured body part, such as scars from scalpel cuts or stitches.
Physical impairment is another type of non-economic damages recoverable in a personal injury case. Physical impairment damages provide compensation to an injured party for the loss of the ability to do certain activities that the injury party had done prior to the accident, but now are performed with physical limitations. Physical impairment damages is usually limited to those injured parties that have suffered a permanent injury.
Loss of Enjoyment of Life
Compensating the injured party for losing the ability to enjoy certain aspects of their life as a result of their injuries is the purpose of loss of enjoyment of life damages. Not being able to take part in hobbies they once enjoyed or playing with their kids are some examples of situations where this type of damages are recoverable.
Think of gross negligence when you think of punitive damages. Punitive damages are meant to punish the liable party for their bad behavior. These damages are available to those injured parties that are the victims of the egregious acts of the liable party that caused their injuries. Acts such as drunk driving or excessive speeding are some of the examples that may reach the level of gross negligence.
22 Tips on How to Maximize Your Compensation
Now that we know what damages are recoverable under the law, we can now discuss how to maximize your compensation in your personal injury case.
1. Get Medical Treatment Immediately
Getting medical treatment immediately after your accident is not only a smart way to avoid bigger problems down the road with your health, but also help with the value of your personal injury case. Insurance companies and juries both will take your case more seriously if you seek immediate medical attention after an accident. In most instances, going to the emergency room immediately after the accident will improve the value of your case. Going by ambulance doesn’t hurt either.
Remember, don’t go to the emergency room just because you think it will help your case. Faking your injuries is never a good strategy and will only hurt your case in the long run. If you feel you need emergency medical treatment, then go to the emergency room. Use your best judgment and common sense.
2. Overcome Unfavorable Liability Determination
If the insurance company has determined that you were partially or entirely at fault for an accident, it can severely limit your damages you can receive.
In Texas, if you are more than 50% at fault in an accident, you will be completely barred from recovering any of your damages. This is called “Modified Comparative Negligence.”
In Florida, the law is much more forgiving. Even if you are 99% at fault you can, technically, still recover 1% of your damages. However, the goal is to have the other party accept 100% of the fault, so that you can recover the maximum amount of your damages.
So, how do you overcome an unfavorable liability determination situation? Well, here are some tips:
Hire a Car Accident Injury Lawyer
Car accident lawyers do not charge any fees up front and will always give you a free consultation. It only makes sense to hire one if you are facing a liability challenge. They have the education, training, and experience for situations just like this. They are experts at persuading the insurance company to change their determination. Let them work for you.
Argue Your Case with Evidence
Evidence such as witness statements, photos of the accident site or vehicle damage, security camera footage of the accident, and the police crash report are the best ways to argue your case to the insurance company. The more favorable evidence you have, the better chance you will have to change their liability position.
Be Consistent with Facts
It’s very important you tell the truth to the police and to the insurance company and are consistent with how the accident occurred. Any inconsistencies will kill your credibility and hurt your case. I recommend you write down everything you can as soon possible using your notes application on your smartphone, so you don’t forget what happened.
Avoid Talking to the Insurance Company
If you haven’t hired a car accident lawyer, this tip may be difficult to follow. However, under most circumstances NEVER give a recorded statement to the other party’s insurance company. If your own insurance company asks for a statement, you are usually bound by the policy to cooperate, so you usually have no choice.
When you talk to the adjuster, they will do everything they can to trip you up. If you haven’t hired a lawyer, be very prepared any time you talk to the insurance company, even if it’s your own. Have notes in front of you of the facts of the accident and review them several times before you even call the insurance company. Be very brief with your answers and avoid answering open ended questions beyond a “Yes,” or “No.” Don’t let your own words destroy your case.
3. Provide Evidence
Providing evidence will help in proving your case and help in dealing with the liability portion of your case. As mentioned above, an adverse liability determination will kill the amount of compensation you can get from the insurance company. Here are some of the evidentiary items you can gather for your case:
Get Your Crash Report
Start with making sure you get the police to fill out a crash report. This will help document the case and the parties involved. You’ll want to get this report as soon as possible.
For Texas car crashes, you can purchase crash reports HERE for $6.
For Florida car crashes, you can download them HERE for $10 plus a $2 fee convenience fee.
Once you get the report, review it thoroughly. Review the officer’s opinion on liability, if available. Check to see if any citations were given. If you were cited for the accident, not all is lost. There are ways to overcome the traffic citation.
Generally, if one of the parties were cited for violating a traffic law that resulted in causing the accident, the insurance company will almost always determine that party to be at fault. If you are the one cited for the accident, the best thing to do is consult a car accident lawyer.
Take Photos and Video
Use your smartphone camera to take photos and video footage of the vehicles involved, the road and the surrounding area, and traffic signals/signs. You should also take pictures of your injuries, if visible.
Write Down Facts
Write down in your smartphone’s notes application as soon as possible how the accident happened and any other important facts, such as how the other party had a strong smell of alcohol when he/she approached you.
It’s important to do this as soon as possible to avoid any memory lapses. Car accidents are stressful events. Stress has a tendency of impairing our short-term and long-term memory.
Get Witnesses’ Names & Contact Information
Having an independent witness that saw the accident can save your case from an adverse liability determination. If possible, make sure the police are aware of any witnesses and note their names and contact information, as well.
Get Security Camera Footage
Act immediately and try to get the security camera footage from nearby businesses that may have caught the accident on their cameras. It’s important to act fast here. Businesses typically don’t keep their footage for very long.
Getting security footage can be difficult to get on your own since most businesses don’t want to bother themselves with dealing with handing over their own security footage.
If your car accident concerned a major injury or death, DWI/DUI, or hit and run, the police should be seeking this footage for their investigation. Ask them for a copy.
4. DO NOT Give a Recorded Statement
NEVER give a recorded statement to the other party’s insurance company. The adjuster will always try to destroy your case even if you were 100% innocent. The statement isn’t a requirement, even if that’s what they may tell you. Hire a car accident lawyer and have them handle it.
Insurance adjusters are trained to ask irrelevant questions and questions that are meant to trip you up. If you give a statement, you can be certain they will try to use your words against you. It’s better to be safe than sorry. Avoid the statement altogether and hire a lawyer.
As discussed above, if your insurance is asking for a recorded statement, you’ll likely be required to give it, according to the terms of your policy. But, even here, have an attorney handle it. Don’t think your own insurance company is your friend. Once you file a claim with your insurance company, the adversarial process begins. Remember, insurance companies are profit-seeking businesses first. They are not charities. Therefore, they will do whatever they can to avoid paying on a claim.
5. Don’t Let the Adjuster Talk You Into a “Nuisance” Offer Settlement
Insurance adjusters are trained to do their best to settle a claim as quickly as possible before an attorney gets involved. They know that once an attorney gets involved, they will need to pay a whole lot more on the claim. Their strategy is to entice the injured party with a quick, garbage settlement to get rid of them, or what’s known as a “nuisance” offer. Don’t let the insurance adjuster do this to you. Nuisance offers are typically a fraction of what your case is actually worth. Be patient. This is not the time to be hasty.
6. Negotiate the Value of Your Property Damage
Although we’re talking about the injury portion of your case here, it’s important to get top dollar for your property damage, as well. Don’t accept the first offer on your car, if it’s totaled. Provide comparables to the insurance company from websites such as Kelley Blue Book, NADA, Autotrader, and CarGurus, within a 50 mile radius of where you live. Make sure the comparables are the same make, model, year, condition, with the same or similar miles and options. If you’re having difficulties finding comparables in your area, you can get an appraisal report from a certified auto appraiser, if that makes sense.
For more tips on handling your property damage, click HERE.
7. Ask for Loss of Use Compensation
When the insurance company doesn’t provide you with a rental car for the time you are without a vehicle, you can ask them for “Loss of Use.” Loss of Use is additional compensation you can get for being without a vehicle up until your vehicle is repaired or up until the insurance company makes an offer to settle your total loss. They should pay the reasonable rental rate for every day you’re without a vehicle.
8. Ask for Diminished Value Compensation
Another type of compensation related to your property damage is “Diminished Value.” This is another source of compensation that will add to your overall gross settlement from your accident.
Diminished value claims compensate you for the loss of value that occurs on a vehicle that has been in a wreck. Even if a car is flawlessly repaired, there is always a stigma surrounding the quality of repairs, and its reliability and safety.
Proving the difference in value might be better left to the experts. So, it’s probably best to get an appraisal report from a certified auto appraiser.
The best candidates for this claim are newer vehicles that haven’t been in any prior accidents and the repair costs are at least $1,500 or more.
9. Get Reimbursed for Out-of-Pocket Property Damage Expenses
Vehicle accidents have many costs that you may need to pay for out-of-pocket, including vehicle towing and storage expenses, rental car expenses, and taxi or rideshare expenses.
If you do not have coverage on your own insurance policy for a rental car or towing, you’ll need to submit these expenses as soon as possible to the other party’s insurance company for reimbursement.
Important: Never let your car sit in storage too long while the other party’s insurance company does their investigation on liability. You have a duty to mitigate your damages. In other words, you can’t sit and let unnecessary expenses accrue and expect the other party’s insurance company to pay. Be proactive. Have your car moved to the insurance company’s storage lot or to a location where it’ll be safe and doesn’t accrue any unnecessary expenses.
10. Hire a Car Accident Lawyer Immediately
As personal injury lawyers, this tip may sound a bit self-interested. But the fact is insurance company’s almost always pay more on a claim when a lawyer is involved. There are studies that have been done that back this up. Two studies conducted by the Insurance Research Counsel found that claimants received 40% higher settlements when represented by an attorney.
When you have a lawyer representing you, you don’t run the risk of saying anything to the insurance company that may harm your case. Car accident lawyers are very experienced in discussing claims with insurance adjusters, knowing how the insurance claims process works, and knowing the law.
Typically, there will be an adjuster change when a lawyer takes over your case. Some insurance companies assign their more experienced adjusters to lawyer represented claims. Often times, these more experienced adjusters will have greater settlement authority. This means a greater chance that your claim will be settled for a larger dollar amount.
11. Don’t Settle Your Case Until You Are Done with All Medical Treatment
Make sure you have been completely released from all treatment before you think about settling your case. Once you settle your case, you cannot go back and ask the insurance company for more money to cover your bills. You doctors will know whether you’ve reached the maximum medical improvement to be released from treatment.
To consider your potential future medical expenses for your injuries, make sure your doctor provides you with an estimate of the future medical expenses that you will have as a result of your injury. This includes future surgeries, physical therapy, chiropractic treatment, orthopedic devices, medication, and any other medical expenses that may be incurred in the future. Providing proof of future medical bills will help to increase the value of your personal injury case.
12. Know the Statute of Limitations
That statute of limitations is the time limit you have to sue or settle your case. Every state has its own rules on time limits to sue. If you wait too long to settle your case or file a lawsuit, you can lose all your rights completely. Make sure you’re aware of your state’s statute of limitations on negligence cases.
In Texas, the statute of limitations to file a lawsuit or settle a case, against the negligent party, is two years from the date of the accident. If you are suing your own insurance company for failure to pay uninsured or underinsured benefits, things are a bit more complex. Since there are many claims that can be made against your own insurance company, the statutes of limitation vary. Breach of contract is one claim that can be brought against your own insurance company and the time you have to file a lawsuit is four years from the time of the breach. Other claims that can be made have a statute of limitations as little as two years. So, it’s important to seek the advice of an attorney if you are uncertain as to the time limit you have to sue.
In Florida, you have four years to file a lawsuit or settle your case, if your case is against the negligent party. If your claim is against your own insurance company, you have five years to file a lawsuit or settle.
13. Know How Health Insurance / Medicaid / Medicare Affects Your Case
If your health insurance, Medicaid, or Medicare paid your medical bills, that can reduce your overall damages and reduce the value of your case, depending on the law in your state.
In Texas, according to Texas Civil Practice and Remedies Code Section 41.015 and the Texas Supreme Court case Haygood v. DeEscabedo, your medical bills damages are limited to the amount that is actually paid or incurred. This means that if your health insurance or Medicaid/Medicare paid a fraction of the billed amount for your medical expenses in full satisfaction of the bill, you can only claim the amount that was actually paid as your damages.
In Florida, health insurance / Medicaid / Medicare payments made to your healthcare providers can affect your settlement amount. Section 768.76, Florida Statutes, states that a court shall reduce the amount of an award by the amount paid by a “collateral source” (i.e., health insurance company). The effect this has on your claim is that the insurance company may reduce your medical expenses damages down from the billed amount to the amount paid by your health insurance company. In addition, this reduction includes the contractual amounts that are written off by the medical provider. If Medicaid or Medicare pays your medical bills, it can lower the amount of your damages.
In Florida, if your Personal Injury Protection paid some of your medical bills, there will be an offset and your recovery will be reduced by that amount.
When health insurance / Medicaid / Medicare is used it can lower the economic damages portion of your case. This area of the law can get quite complicated. So, it’s best to get a consultation from a lawyer to ask questions regarding how health insurance / Medicaid / Medicare payments affect your case.
14. Make Sure Liability is Clear
If the insurance company pays for all your car’s damages, then it’s likely they have accepted full liability on the claim. But, if they are claiming you were partially or fully at fault and pushing back on paying your damages, you’ll need to use the tips discussed in tip #2 above.
If you are not represented by a lawyer, try to ask for their position on liability. Avoid any discussion beyond getting their response to this question. If they are fighting liability, it’s best to call a lawyer.
15. Make Sure There Are No Coverage Issues
If the at-fault party was an excluded or unauthorized driver or their policy had expired, you may be facing a denial based on coverage issues. If the at-fault party will not respond to his/her insurance company during their liability investigation, the insurance company may handle the claim under a “reservation of rights,” meaning they are neither accepting nor rejecting liability due to their insured’s failure to cooperate as per the policy language. Handling these issues on your own can be difficult. At this point, it’s best to seek the advice of a personal injury lawyer.
16. Get Consistent Medical Treatment
Getting consistent medical treatment shows the insurance company that your injuries are legitimate, and you aren’t exaggerating your injuries. Think of it from the adjuster’s perspective—if a person is really injured and in pain, they will do anything they can to get better. Missing doctor’s appointments and getting no medical treatment only proves their point—that you’re not as injured as you say you are.
Gaps in medical treatment are one of the best ways to kill your case’s value.
17. File a Claim with Your Own Insurance Company
If you are involved in a vehicle accident with someone that is uninsured or doesn’t have enough insurance to cover your damages, you will need to set up a claim with your own insurance company. Uninsured / underinsured motorist coverage is additional insurance coverage and not all people purchase it. However, it is so inexpensive that it never makes sense to reject this coverage. If you have it, it will cover your injuries up to the amount of your coverage.
In Texas, you can buy additional coverage called “Personal Injury Protection” (PIP), which I recommend everyone gets. It covers reasonable medical expenses, 80% of your lost wages, and reimbursement for household services for those that are injured in a vehicle accident.
What’s also great about uninsured / underinsured and PIP coverage is that they cover you and your family even if you’re injured as a pedestrian or bicyclist.
FYI—Personal Injury Protection (PIP) in Florida is a different animal than it is in Texas and other “tort states.” Florida is a “no-fault” state and every driver is required to carry PIP coverage. Bodily injury coverage is not mandatory in Florida. You go through your PIP coverage first for your medical bills and 60% of your lost wages. If the liable party does not have any bodily injury coverage or does not have coverage, you can go through your own uninsured / underinsured motorist coverage for compensation.
18. Show an Objective Injury
Claiming you have only aches and pains can only get you so far in a personal injury case and will severely limit the potential compensation in your case. The pain and suffering portion of your case will likely be minimal in soft tissue injury cases (e.g., whiplash), without proof of an objective injury. So, what is an “objective injury”? Well, let’s first discuss what an objective injury isn’t. It isn’t an injury where the only evidence of its existence is your own subjective complaints. Saying your back pain is a 10 out of 10 doesn’t help much because you and I both know you can be exaggerating your injury. Of course, people are often honest when discussing their pain with others, especially with their doctors, but even the 1% chance that they’re not being 100% honest, casts a shadow of doubt on the legitimacy of their injuries. An objective injury is one that can be corroborated by extrinsic facts. A great example of an objective injury is an MRI showing a herniated disc in the lumbar spine, which impinges on the nerve root causing pain, numbness, and tingling. The showing of this objective injury with diagnostic testing, such as an MRI, corroborates the complaints of the injured party and the injury. Showing an objective injury is important and can increase the value of your case.
19. Prove a Permanent Injury
Permanent injuries are those injuries that have lasting effects on the injured party for the rest of their life. We’re not talking about sprains and bruises here. Permanent injuries are more serious, such as a herniated disc (in some cases), paralysis, traumatic brain injury, or loss of a limb.
You can prove a permanent injury by providing the insurance company the medical records from your doctor showing that your injury is permanent.
In Florida, proving a permanent injury is important in motor vehicle accidents in order to receive pain and suffering damages and other non-economic damages. Section 627.737, Florida Statutes states that in order to recover pain, suffering, mental anguish, and inconvenience because of bodily injury caused from a motor vehicle accident, the injury must consist of:
- Significant and permanent loss of an important bodily function.
- Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.
- Significant and permanent scarring or disfigurement.
20. Increase Your Pain and Suffering Compensation
Increasing the pain and suffering and non-economic damages portion of your injury claim is a great way to increase the overall value of your case. As mentioned in tip #18, providing the insurance company with objective evidence of your injury will help establish that your claim justifies pain and suffering compensation, especially if diagnostic testing (e.g., MRI, x-ray, etc.) demonstrates evidence of an injury which typically causes pain.
Another way to increase the pain and suffering and non-economic damages portion of your injury claim is to articulate to your treating doctors how the pain is affecting your daily life. Good examples of this would be telling your doctor if you are unable to sleep properly, exercise, or play with your children. The doctor will then document this in their notes. You can later provide these records to the insurance company during your negotiations.
21. File a Lawsuit
Sometimes if you are unable to reach a reasonable settlement offer with the insurance company, you may need to file a lawsuit. Depending on the insurance company, you will likely get a better offer once you file a lawsuit and you serve the defendant with notice of the lawsuit. Typically, filing a lawsuit will motivate the insurance company to increase their offer to settle for two main reasons: (1) It places more financial risk on the claim; and (2) they may need to hire outside counsel to defend them or their insured, which costs them money.
If you’ve reached the insurance company’s “top offer” and they are undervaluing your claim, it may be in your best interest to file a lawsuit. However, this is a part of your case I highly advise you let an experienced attorney handle. Lawsuits can get extremely tricky fast.
22. Reduce Your Medical Bills and Liens
Reducing your medical bills and liens is a complimentary part of the services a personal injury attorney offers when he/she is handling your case. A good personal injury lawyer will do their best to negotiate all your medical bills and liens. The more your medical bills are cut, the greater the amount of cash from your settlement you can keep in your pocket.
If you’re handling your own case, make sure you attempt to reduce all your outstanding medical bills, including claims of reimbursement / subrogation from your health insurance / Medicaid / Medicare. You can write a letter telling them you are unable to pay their bill in full and need a reduction in order to settle your case.