General Information About Auto Injury Claims & Property Damage
DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.
** Most responses are directly related to vehicle collisions, but largely apply to all personal injury claims.
Most likely, the Release you signed will legally waive any future claim for your injuries and damages. Rarely, however, an inexperienced or incompetent adjuster may have you sign a Release that does not comply with Georgia law. A Release, in most cases, must have a statement to the effect that “Our insured has not consented to this Release and does not waive any claims that he may have against you.”
While the Release language may seem just a technicality, Georgia courts have refused to enforce such an improperly worded Release. The rationale is that without the proper language, an injured party might think that by settling the other driver wouldn’t be able to sue them.
If you have signed a Release that does not state similar language as quoted above, the Release is not valid, and you may file a lawsuit for your injuries. The insurer will get credit for any sum paid to you. For example, assume you “settled” your case initially for $5000.00, but received $25,000.00 in a jury verdict. The Judgment issued by the court, for which you could collect, would be for $20,000.00.
Anyone who has signed a Release should have a personal injury attorney review the Release to determine if the Release was valid.
Generally, if any Release was signed by a minor, and not the minor’s parent or legal guardian, the Release is not valid, and the minor may bring a lawsuit.
If you are injured in a vehicle accident, under no circumstances should you allow the other driver to talk you into not calling law-enforcement. As long as you obtain the other driver’s insurance and contact information, failing to report the accident to authorities may not be fatal to your claim, but is certainly highly detrimental.
Although you are injured, and the other driver is at fault, and you may be angry at him, it will help your case if you are calm, show concern for their injury status, and do not berate or argue with the other driver. (Your behavior could come out at trial, and might adversely effect a jury. Often the other driver’s bad behavior is used against them).
On the scene, do not provide any information to the other driver as to what you saw or heard before the collision. Do not express any opinions about the collision. Of course, do not say anything that might be perceived as indicating you were partially at fault.
If you are feeling any pain or tightness or tingling, or merely a hot sensation in your neck or back, make certain that you report the injury or sensations to the investigating officer. While the officer is filling out the Accident Report on the scene, ask him to make certain that he notes that you are complaining of injury or symptoms.
Significant pain often does not happen for many hours or the next day or longer after a collision. Insurance companies, however, will use the failure to report an injury at the scene against you.
I’m not suggesting that you make a false report of injury at the scene. However, if you are feeling dazed, dizzy, disoriented or fuzzyheaded (feelings often reported by injured parties), definitely report this to the officer.
Often, an injured party will decline being transported to an emergency room, either because of the expense or the belief that the injury is minor. While everyone will have to make their own decision on these issues, be aware that insurance companies regularly raise the failure to seek immediate medical attention against the injured party. In addition to treatment, immediate medical attention may detect spasm or other physical abnormalities that will document injury.
If you do not go to an emergency room immediately, or do not experience pain until a day or so later, it is crucial that you seek medical treatment as soon as possible. Every day of delay will be used against you by the insurance company.
It is natural, and reasonable, to later contend that getting an appointment quickly wasn’t possible. Nonetheless, the insurance company or their attorney will contend that had the pain been bad enough, you would’ve gotten treatment somewhere.
If you cannot see your regular doctor quickly, you should initially be treated at a non-emergency clinic or an emergency room, depending on your complaints.
Absolutely, do not obtain chiropractic treatment for your injuries, unless this is your only financial option. Insurance companies and juries regularly significantly discount chiropractic treatment and chiropractic expenses. Contentions are often made that the chiropractic adjustments made your injury worse. Moreover, there’s often the contention that the length of the chiropractic treatment was not necessary.
Delays or gaps in future medical treatment will be used against you. Unreasonable, canceled medical appointments will be used against you. A failure to follow a medical provider’s advice will be used against you. Certainly, you should seek a second medical opinion before undergoing any major medical procedure or surgery.
It is very important that you answer all medical providers’ questions truthfully and thoroughly, including on any form that you are asked to fill out. If you have suffered, for example, a prior back injury, do not fail to mention this if the question is asked. An insurance company’s attorney will use any inconsistencies against you.
Following a collision, if your vehicle has sustained any significant physical damage, you should take photographs of the vehicle, preferably with a digital camera. The main reason for doing so is to show a jury the severity of the property damage, and, therefore, of the impact.
While adjustors routinely take photographs, do not assume that they will be provided to you or that the photos will not be destroyed.
Usually within a couple of days after a collision you will be able to pick up a copy of the Accident Report, normally at a police, sheriff’s, or Georgia State Patrol office. Accident Reports are often inaccurate, sometimes amazingly so.
If the report is inaccurate, politely contact the law-enforcement agency that investigated the collision, and ask the officer to file an amended report. Unfortunately, this may have little or no effect with an insurance company. Nonetheless, it is important to establish early on that you disagree with the officer’s report.
As soon as possible after the collision, report the collision to your own insurance company. You may give them a very brief statement of what occurred, but do not give them a recorded statement without first talking to a personal injury attorney.
If you are not told at the scene, you’ll likely discover the name of the other driver’s insurance company in the Accident Report. You should contact the other driver’s insurance company to make certain that the collision has been reported, and that a claim number and adjuster have been assigned.
You should inform the opposing driver’s insurance company of your property damage, and, if the case, that you were injured, and that the collision was not your fault. It is acceptable to send them a copy of the Accident Report.
You should not give them any detailed information about the collision or your injuries. As with your own company, do not give them a recorded statement until you have spoken with a personal injury attorney.
The below comments largely address personal injury claims, and not property damage claims, which are addressed separately on this website.
A major responsibility of an insurance company adjuster is to keep the injured party from consulting with a personal injury attorney. (Those adjusters who are rude and abusive certainly fail their company in that regard). Adjusters undergo significant training to perfect their tactics.
Adjusters regularly make comments such as: “Don’t hire a lawyer and give a third of your recovery to them. We’re not going to offer any more money if you do hire a lawyer.” Sometimes this is good advice, but rarely.
It is understandable that many injured parties will attempt to negotiate with the insurance company on their own to avoid attorney’s fees. The major problem with this is that few people know the settlement value of their claim.
Moreover, a good ability to negotiate is not very useful in dealing with an insurance adjuster unless you have good knowledge of Georgia insurance law, tort law, and evidence law, and the likely value of your case before a jury in the jurisdiction of a trial. There are many tactics and legal contentions that a personal injury attorney can use to pressure insurance companies to offer a reasonable settlement.
Before you consider contacting an adjuster, you should receive a free through consultation with a personal injury attorney.
If you choose to initially contact the adjuster, be aware that adjusters will often tell an injured party that they “should send in their medical bills and we will take care of you.” What they are actually saying is that “We will pay the bills if you will sign your rights away to further recovery for your injuries.”
If you choose to negotiate on your own, you should not consider settling your personal injury claim (except for the “statute of limitations issue discussed below) until you have fully recovered from your injuries or you accept the opinion of a doctor who advises that you have reached the fullest recovery possible. It is extremely rare for an insurance company to agree to a settlement where they are obligated to pay any future medical expenses that accrue.
Georgia law sets a limit on how long you have to file a lawsuit (a “statute of limitations“). If your claim is against a government entity, you will likely have to properly place the government on notice of a claim long before the statute of limitations expires. An attorney should be consulted on this issue as soon as possible after an incident or first knowledge of an injury.
If you do choose to negotiate with the adjuster, as hard as it may be, do not argue with them or be rude to them. If they see that their abusive tactics are not working on you, they will take you more seriously. Additionally, arguments can make the adjuster take the case personally, and they may simply refuse to negotiate reasonably.
In my experience, insurance company adjusters take one of two paths at the outset. They are either rude and rarely return phone calls or they are very friendly and act quite concerned. The rude adjusters hope to intimidate you, essentially, to abandon your claim or take what little sum is offered.
Friendly adjusters hope that you will settle your case before the full extent of your injuries are known. Of course, it is their job to pay as little money as possible to settle claims. It is also their job, whenever reasonably possible, to convince an injured party that they have no claim.
A friendly adjuster certainly may be a good person. In my experience, however, their positive tone often changes quickly once their first offer is rejected.
Adjusters will occasionally tell injured parties where they should go for medical treatment. This does not mean that they will pay for it.
Under Georgia law, the insurance company of the other driver has no legal obligation to pay your medical expenses as they accrue. It is extremely rare that they will do so, as they do not want anyone to get medical treatment, as that increases the value of the claim.
Do not obtain medical treatment with any medical provider recommended by an adjuster. Sadly, there are a number of doctors in every community who work closely with insurers, and who seem to determine that the referred patients suffered only minor injuries, regardless of the truth. (These doctors often treat work injuries, and are selected by employers seeking the most conservative doctors. Some doctors receive substantial fees doing medical evaluations on behalf of the referring insurer, and want to stay on the insurer’s good side).
Do not give the adjuster a recorded statement. Tell the adjuster that you must speak with an attorney before doing so. Recorded statements can be used against you, even though you answered every question truthfully. With the client thoroughly prepared, I regularly allow clients to give recorded statements, while I am also participating.
Do not send the adjuster copies of your medical bills or records as they accrue. The adjuster is simply attempting to obtain information to, hopefully, use against you. As discussed above, they will not pay medical expenses as they accrue. The main reason for this advice is that an adjuster’s first impression of your injury is hard to change.
An adjuster should not be provided any significant details about your claim until it is time to attempt to settle the claim. At the outset of a claim, adjusters must give an opinion to their company as to the value of a claim.
If their initial evaluation is low, they don’t want to later explain to their company why they were initially wrong. In representing clients, I will sometimes ignore the above advice if the initial injuries are obviously quite severe. This is a judgment call.
If you do attempt to negotiate on your own, as in most negotiations, you should make the first dollar amount proposal (demand). Of course, your first demand should be significantly higher than what you are willing to accept. Your first demand should not be highly unreasonable.
Most of the time, the insurance adjuster’s first offer to you will be ridiculously low. In that situation, normally I ignore the low offer and slightly reduce the original demand. In this way, you will be able to see whether the insurance company has any interest in continuing to negotiate.
Never accept the adjuster’s first offer (in less it meets your stated demand!), and rarely their second or third offer. (Negotiation communications, including the amounts of demands and offers, cannot later be communicated to juries, except in extreme situations).
If you have uninsured motorist coverage available to you, you may recover for damages caused by the uninsured motorist. (Georgia law does not require you to carry uninsured motorist coverage).
And, even if the other driver has insurance, you may be able to recover any damages in excess of the amount of the other driver’s liability insurance limits. Such coverage is called “underinsured motorist” coverage, which is a part of uninsured motorist coverage.
Your “uninsured motorist claim” or “underinsured motorist claim” for personal injuries and/or property damage is actually against the insurance company providing the uninsured motorist coverage, which is often your own insurance company.
If the other driver is uninsured, you will be able to collect all available uninsured motorist coverage, assuming your injuries and damages warrant that amount.
Under most policies here is how underinsured motorist coverage works: Let’s assume the other driver has only $25,000.00 (the minimum-required limits) in liability coverage. Assume that you have $50,000.00 in uninsured motorist coverage. Further assume that your injuries and damages are worth $50,000 or more. Under such a scenario, you will normally be able to recover $25,000.00 from the other driver’s policy, and $25,000.00 from the uninsured motorist policy covering you.
If you only have $25,000.00 in uninsured motorist coverage, under the above scenario you would not have a claim against your own uninsured motorist policy. There may be exceptions (in part discussed below), and these issues should be closely evaluated by a personal injury attorney.
Since 2008, Georgia motorists have been able to select an option, requiring an additional premium, which expands underinsured motorist coverage as follows: Again assume the other driver has only $25,000.00 in liability coverage, and that you have $25,000.00 in uninsured motorist coverage.
Further assume that your injuries and damages are worth $50,000.00 or more. Under such a scenario, if you elect the additional “ad-on” coverage, you will be able to recover $25,000.00 from the other driver’s policy, and the full $25,000.00 from the uninsured motorist policy covering you.
The insurer providing the uninsured motorist coverage, including your own company, will defend the claim just as if they were insuring the other driver. That means they will not be looking out for your interests.
Do not expect favorable treatment merely because they are your own company. Many clients expect that their own company will treat them better, perhaps because of amicable negotiations concerning property damage. Property damage claims, however, are considerably different than personal injury claims, for several legal reasons.
Many clients are concerned about pursuing a claim against their own company, worried about possible policy cancellation or increased premiums. This should not be a worry.
Georgia law prohibits insurance companies from taking negative actions based on an uninsured motorist claim. I have not found this to be a concern following representation of hundreds of personal injury clients.
If the other driver is uninsured, you need to determine whether you have uninsured motorist coverage under your own auto policy. (Again, uninsured motorist coverage is not required under Georgia law).
There are many uninsured motorist coverage issues that need to be determined by a competent personal injury attorney. Depending on the policies involved, you may be able to “stack” more than one uninsured motorists policy-in effect giving you a higher total coverage amount.
For example, if you are a passenger in another’s vehicle, you may be able to recover under any uninsured motorist coverage covering that vehicle, as well as under your own policy or policies. You may also be able to recover under any uninsured motorists policy of a relative residing in your household.
For example, two separate policies each providing $25,000 in uninsured motorist coverage may provide a total of $50,000 in uninsured motorist coverage to you.
However, if you are covered under only one policy covering two or more vehicles, with uninsured motorist coverage of $25,000.00 on each vehicle, you cannot “stack” the one policy. In other words, you will be limited to a total of $25,000.00 under the policy.
If you’re representing yourself, it is important to know, in an underinsured situation, that settling with the other driver’s insurance company before settling all underinsured motorist claims can wave the right to pursue an underinsured motorist claim.
A personal injury attorney will ensure that, before settling, the Release you will be required to sign with the other driver’s insurance company will be a proper “Limited Release,” which will protect you from a waiver of the underinsured motorists claim.
If the other driver cannot be located, an injured party can use any available uninsured motorist coverage, addressed elsewhere on this Website, to pursue a claim for personal injuries and property damages. Under Georgia law, if there was no impact with the other vehicle, there must be a collaborating witness to the accident.
For example, a witness can confirm that another vehicle swerved into the path of your vehicle, causing you to run off the road. The witness may be another passenger in your vehicle, including a spouse. The law is this way under the theory that a collaborating witness will help prevent fraud. An eyewitness minimizes the possibility, for example, that one will contend a vehicle, rather than a deer, caused him to run off the road.
Normally, it is much more difficult to prevail at trial for injuries sustained as a pedestrian or bicyclist. Proving who was at fault is much more difficult than in most vehicle collisions. I believe there is a bias in favor of drivers among jurors — “That could have been me driving.” This is the case even though most jurors are also pedestrians!
Of course, it is more difficult to prevail if the injured party was crossing the street illegally or crossing the street in poor lighting conditions. Nonetheless, there are many situations where the driver was speeding and/or not paying attention.
Certainly, a claim or lawsuit can be filed against the offending driver. Moreover, if the driver leaves the scene or does not have insurance or not enough insurance, to cover the injury, the injured party may have a claim under any uninsured motorist policy that provides coverage to him.
If you are covered by uninsured motorist coverage, you are covered if you are injured as a pedestrian or while riding a bicycle. See this Website concerning sources of uninsured motorist coverage.
I have found that it often takes a lawsuit to convince an insurance company to pay damages when there is a dispute concerning a driver and pedestrian or bicyclist. A deposition (sworn statement taken during a lawsuit) may be necessary to discover that the driver’s version of events is illogical and/or dishonest.
Many attorneys will not represent a client when the fault for a collision is in dispute. This is often a mistake. I will thoroughly review the facts of a collision, and the Accident Report and any supplemental Accident Report. Often, I’ll determine that the other side’s story just doesn’t add up, and can likely be attacked.
Quite regularly, the investigating officer does not thoroughly interview eyewitnesses, or even consider what the eyewitnesses reported. When fault is in dispute, I have often found that the opposing party’s contentions about the collision fall apart during deposition (sworn) testimony.
Whether or not the investigating officer gave anyone a traffic citation for the collision does not end the issue. The fact that the other party was not given a citation (or that you were) is not automatically admissible in court during a personal injury trial.
The fact that a party received a citation is only admissible if the party later pled “guilty” to the citation in traffic court.
A traffic court judge’s finding of “guilty” cannot be used against the “guilty” party in a personal injury trial. (The legal rationale is that 12 jurors can make a determination just as well, or better than, one judge, and that the judge’s “guilty” decision would cast too much weight with the jury).
If an injured party has received a traffic citation, it certainly makes it more difficult to convince an insurance company adjuster that his insured was at fault. Without legal representation, it is extremely difficult for an injured party to convince the adjuster. I do not shy away from this task.
Often, presenting the adjuster with the statements of eyewitnesses and/or a thorough analysis of the facts, can persuade him that his insured is at fault. Again, I have seen many liability contentions fall apart once I have taken the other driver’s deposition. In serious cases, an accident reconstruction expert may be retained to prove how a collision happened.
If your vehicle is a total loss (“totaled”), you can recover the fair market value of the vehicle. “Fair market value” means what you would have reasonably been able to sell the vehicle for, to a reasonable buyer, just before the damage. Unfortunately, whether or not you owe more on the vehicle than its fair market value is not relevant.
The fact that you have installed a new engine or new tires, for example, will not allow you to recover more than the fair market value. Proof of such expenditures, however, can be used to show that your vehicle was in very good condition and would get top value in a sale.
Insurance companies will occasionally present market valuations they have obtained, showing allegedly similar vehicles’ sales prices. Naturally, they are not going to present any evaluation not in their favor.
To prove valuation to the insurer, a good place to start is to go online to the “N.A.D.A.,””Kelley Blue Book,” and “Edmonds” Websites to determine average retail value for your vehicle. (The lesser “trade-in value” or “loan value” or “private party sales price” should not be utilized).
These sources factor in vehicle condition, mileage, exact model number, and vehicle options. It is also a good idea to go to the “Auto Trader” or CarMax websites, and similar sites, to see what the asking prices of similar vehicles are.
Of course, the most favorable evaluation should be presented to the insurance company. The insurance company should pay you the fair market value of the vehicle, and the sales tax on that amount.
As in any negotiation, I suggest that you make the first demand (dollar figure) for the value of the vehicle.
Unfortunately, if your vehicle is a total loss, the opposing insurance company does not have an obligation to provide you with a rental vehicle, even before the decision on “totaling” the vehicle has been made. You should always ask, however, because rental vehicles are often provided regardless of the law.
Georgia law is certainly unfair in this regard, since a lack of a vehicle may pressure many to resolve their claims quickly without further negotiation.
Often the opposing insurance company is so difficult to deal with, or will lowball you, so you may choose to submit your property damage claim to your own insurance company, if you have “collision coverage”.
Before doing so, you should consider your deductible on your policy-normally between $250.00-$1,000.00. Property damage claims may be the one area where your own insurance company will treat you better than the other driver’s insurer!
A personal injury attorney can increase pressure on the opposing insurance company to pay the claim. If I represent you on a personal injury claim, I will not seek any attorney’s fee for representing you on the property damage claim, unless the personal injury claim has been resolved.
There are several important issues to deal with in the situation where your vehicle can be repaired, which a personal-injury attorney will address with you. Most importantly, if you have any significant damage to your vehicle, including frame damage, you should insist that the insurance company reimburse you for the loss of value (“diminished value“) of your vehicle, as well as repair costs.
Of course, even a vehicle that has been fully repaired loses re-sale value. You should perform a Web search for “diminished value calculator.” Use a calculator to determine the diminished value. Your contention, however, may be that your vehicle should be “totaled.”
In the event that your vehicle is being repaired, as opposed to “totaled,” the insurance company should provide you with a rental vehicle for your “loss of use” of the vehicle while it is being repaired.
You should be provided with a vehicle of similar quality to your damaged vehicle. If you’re having difficulty with the opposing insurance company, you should check to see, if uncertain, whether you have “loss of use” coverage on your own policy.
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