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John Bisnar

Auto Accident Question And Answer

July 07, 2007 - 02:55 PM
Category: Automobile Accidents
Tags: Car Accidents
2 Comments Print Article Feed

The following is an email I received regarding an automobile accident claim and my reply:

Question submitted:

While waiting at the red light, a young woman in a Toyota 4 runner hit my car in the rear. (Ford Mustang). Farmers Insurance authorized repairs on the same day. The total cost of repairs was $967.93, which included replacement of the rear absorber and bumper cover. At the time of the accident, I felt fine. Within 48hrs, I felt back pain, I tried to self treat. The pain became unbearable, a Kaiser physician documented my upper back tenderness and back pain upon flexion. I was prescribed pain medication and a muscle relaxer. I also received chiropractic treatment. Total bill $1,800. Today, I received a denial letter from Farmers Insurance which states, due to the low impact of the accident, they will not honor my medical claim. Do I have grounds to file a lawsuit? I really suffered after the accident. Please help.

My response:

What you have experienced is par for the course. This is how Farmers handles what they consider to be "low impact" auto accident personal injury claims.

You do have grounds to file a lawsuit. However, that is not really the question. What you really want to know is, "How do I economically recover what I am entitled to for my medical expenses, out of pocket expenses, other recoverable losses as well as "pain & suffering?"

First, what it takes to fight Farmers, through a trial, to rightfully recover what you are entitled to, will cost much more than you could reasonably recover. Farmers will have their team of "expert witness" testify that you could not possibly be injured from this accident. To counter their experts with experts of your own and pay the other necessary litigation costs to complete a trial, you'd be into the case for at least $10,000 to $15,000. I would expect 75% of the jury verdicts for your case, assuming the jury believes your position rather than Farmers, to be in the $4,000 to $8,000 range. You could easily win the case and lose thousands of dollars. Farmers knows this. That's how they get away with denying a claim like yours.

In days past, if Farmers pulled this tactic on you, you could go to trial, win your $4,000 to $8,000 and then sue Farmers for "insurance bad faith" (failure to fairly adjust a legitimate claim). You could seek punitive damages for their despicable conduct. However, our State Supreme Court, reversing previous rulings, struck down a person's ability to punish insurance companies for such tactics. The insurance lobby, probably the strongest lobby in California, continually keeps our law makers from passing any laws that would give people like you an opportunity to hold insurance companies accountable for their "wrongful denial of claims" tactics.

So, what can you reasonably do? Wait. Wait at least a year to see how your injuries heal. Only then will you know the full extent of your injuries. If your injuries and losses are large enough to make economic since to hire an attorney and go to trial, that's what you do. Keep in mind that many back injuries do not fully manifest themselves for many months to years. You have two years from the time of your accident to file a lawsuit.

If you are lucky and your back heals up fine and you have no further problems, first consider yourself fortunate and second, sue the other driver in small claims court. Small claims court is easy and inexpensive. The insurance company can not come in and defend their insured, the negligent driver. No attorneys are allowed in small claims court. I have never heard of an insurance company having their insured bring expert witnesses into trial. Besides, the negligent driver is not likely to know how to present the expert witness testimony. There are a number of websites devoted to teaching you the simple procedures of small claims court. I would expect a small claims judge to award you between $3,600 and the small claims maximum of $7,500.

If you have further questions, contact an attorney from InjuryBoard.com.
Good luck!

John Bisnar
Bisnar Chase LLP

For more information on this subject, please refer to our section on Car and Mototrcycle Accidents.

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Posted by Linda
Sunday, July 29, 2007 12:58 PM EST

I am dealing with an insurance co who offered a very low amount to settle. They sent what they called expert rebuttle letters. My questions are: 1)If I were to take the other driver to small claims court, would the insurance co. be more motivated to make a fair offer prior to court? 2)If we go to court, can the other driver submit info from their insurance co? 3)Would it be helpful for me to submit documentation that the driver who rear ended me had several accidents on their record and I have none? 4) If I win a monatary award in small claims court, who pay it? the other driver or there insurance co? If insurance co, will I be paid right away or do they have appeal rights? Thank You. 5)If I win in small claims court, will the insurance co

Posted by John Bisnar
Sunday, July 29, 2007 4:50 PM EST

Linda, In answer to your questions: (1). Question. If I were to take the other driver to small claims court, would the insurance co. be more motivated to make a fair offer prior to court? Answer. In my experience, the insurance companies hate it when you sue their insured in small claims court. Usually the insured/negligent driver wants nothing to do with the case and wants their insurance company to make the case go away. Suing in small court is one of the tactics I suggest to people who are not getting a fair offer to settle. Let a small claim court judge tell you what is fair, if you feel the insurance company is taking advantage of you. After all, you'll get you day in court. And yes, the insurance company is likely to make a better offer to keep their insured from having to go in front of a judge. (2). Question. If we go to court, can the other driver submit info from their insurance co? Answer. Much will depend upon the judge and the information. Small claims judges are much more liberal on what they will let in and what they won't. Usually, a small claims judge will read what people submit and decide if the information is credible. If not, he/she won't let it in. If the judge lets it in, he/she will decide how much weight to give it. If you haven't see the information prior to small claims court, the judge is less likely to let it in. If you do not have a fair opportunity to cross-examine the information or its presenter, the judge is less likely to allow it in. (3). Question. Would it be helpful for me to submit documentation that the driver who rear ended me had several accidents on their record and I have none? Answer. I think you should submit it to the judge and see. Most times judges will not let information of prior bad driving influence a present claim of bad driving. However, if you get the judge to believe that the other person is a bad driver, will it consciously or subconscienly influence the judge? Who knows. After the defendant testifies, ask the judge if you can ask the defendant a few questions. Then start off with something like, "Isn't it true that within the last three years you have been involved in two other auto accidents and received three speeding tickets?" Now the judge my disallow your question, but he heard the allocation and if you are holding a document in your hands to support your position, that can be very powerful. If the judge disallows the question, tell him you have evidence of the defendant's record and offer to give it to the judge. If the judge has let in information the defendant brought from his insurance company, argue that you should get to submit the paperwork that you brought. (4). If I win a monetary award in small claims court, who pay it? the other driver or there insurance co? If insurance co, will I be paid right away or do they have appeal rights? Answer. The insurance company is obligated to pay but the judgment is against the other driver. The insurance company has no standing, so they can not appeal. The other driver can appeal however. Good luck. Please come back and tell us all how it came out. John Bisnar

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