If you are involved in a motor vehicle accident in New York, you will likely deal with multiple insurance carriers. The motor vehicle insurance of the car you are occupying will be the carrier you will file a no-fault claim against. The vehicle or vehicles responsible for the accident will be the carrier(s) that you file a bodily injury claim against. If you are a passenger and the vehicle you are in is responsible for the accident you will file both a no-fault and bodily injury claim against the same carrier. In that situation, the carrier will act as two separate and independent companies in dealing with your claim and is strictly prohibited from sharing information with each other without your consent.
Your no-fault claim and bodily injury claim can be filed simultaneously. Each has various steps to be accomplished to obtain the maximum benefits you are entitled to.
It is important to differentiate between filing a bodily injury claim and filing a lawsuit. A bodily injury claim is an informal demand for payment from an insurance company for injuries suffered in a motor vehicle accident. A lawsuit is a formal accusation made in court which, if not settled, will ultimately result in a trial, and if successful, a judgment wherein the responsible party would be ordered to pay damages to you.
It is common for attorneys to assert a bodily injury claim and if they cannot settle out of court, they will file a lawsuit. While filing a bodily injury claim can be done without a lawyer, it is never a bad idea to consult with a lawyer first before going it alone. On the other hand, I would always recommend that you hire a qualified personal injury attorney if you intend to file a lawsuit. There are just too many pitfalls you may encounter pursuing a lawsuit without an attorney.
The first step in filing a bodily injury claim is contacting the responsible party’s insurance carrier and alerting them to the fact that you are making a claim for injuries you sustained in the motor vehicle accident. You do not have to complete any forms to make a claim. However, if you hope to resolve your claim without a lawsuit, you must likely provide a theory of your case for the insurance carrier adjuster with medical documentation of your injury. This can be done without providing a personal statement as discussed below.
The adjuster assigned to your case will be looking for certain information prior to deciding whether they are interested in settling your claim. Since you are only entitled to receive compensation if you can establish fault and that you suffered a serious injury, the carrier will be seeking documentation to establish both.
Regarding fault, the carrier will want a copy of the police accident report with any witness statements that you may have and property damage photos. They may also request a written or verbal statement from you. While I have no problem providing a police accident report, photos of property damage and witness statements, I never consent to having my client provide a statement and would advise the same if you are representing yourself. The adjuster should be able to gather all relevant facts from the police accident report, witness statements and discussions with their client. If this is not satisfactory to the adjuster, you may wish to consider hiring an attorney, as you’re likely in for a bumpy ride in your negotiations.
Next, the adjuster will seek to obtain injury information. They will likely ask for medical records from any hospitals, doctors, physical therapists and diagnostic tests. It is also a good idea to share any injury photos that will help in illustrating your injuries. It’s in your best interests to demonstrate as many injuries as possible in as favorable a light as possible. So make sure that your photos are clear.
The adjuster will accept medical records you submit to begin the evaluation process. But they will usually request authorizations from you to also obtain the same records directly from the various healthcare providers. This is to ensure that you have not removed or doctored any pertinent information.
The adjuster may also seek to gather medical information on prior injuries. This is typical especially if the records received mention prior injuries to the same parts of your body claimed to be injured in this accident.
Also, the adjuster will want to obtain your social security number. This may not be something that you are comfortable with but will be necessary if you want to settle your case. A carrier has access to a database of information on any insurance claims you have made in the past. Without your social security number, they cannot search for any past claims and will assume there is something that you are hiding. It’s the nature of an insurance carrier to be very suspicious of everything that you say and will seek as many forms of independent verification as possible.
Also provide the carrier with any out of pocket expenses not covered by no-fault. For example, if your wages were not completely covered by no-fault, you should submit proof of how much you were under-compensated. You may also have expenses for co-payments and deductibles if you treated past being terminated by no-fault. Also, you may have purchased braces or medical equipment. It’s best to provide all of your out of pocket expenses to make sure you get everything that you are entitled to. But, don’t be greedy. I recommend never trying to slip additional expenses not related to your injuries into the claim. This will create an environment of mistrust and lead to a contentious negotiation.
Last, ask the carrier to not evaluate your bodily injury claim prior to completing your treatment. You are being compensated for your pain and suffering. Negotiating prior to your full recovery will probably lead to an offer that is less than what it would be if the adjuster had all of your medical records through the conclusion of your case.
Once everything is received by the adjuster and reviewed, the adjuster may want to discuss settlement. My opinion is that it’s always best to allow the adjuster make the first offer. Studies have shown that you will receive more money if you allow the adjuster to begin the negotiation. While unlikely, you may be surprised by their offer and it may even be higher than you expected to get.
If the adjuster is unwilling to make an offer prior to you making a demand, be wary. Remember you are the novice and they are the seasoned pro. Again, an adjuster refusing to give an offer may indicate that you should consult with an attorney.
If the adjuster conveys an offer, consider how close it is to what you ultimately considered fair. If it’s relatively close, always negotiate to get the most money possible. Make a counter demand and see what the adjuster does next. It never hurts to ask for more money. Adjusters rarely make their best offer first and will usually save room to get the deal done. Keep negotiating until the adjuster says that they have made their “final offer.” This may take several weeks and many offers and counter-demands. However, once you pushed as far as you can, you must decide to either settle or hire an attorney to file a lawsuit.
If you have agreed upon a settlement amount, the adjuster will want you to sign a release prior to receiving any money. This is a legal document that outlines the terms of the agreement. Read it carefully to ensure that it contains the right amounts and that you understand any other ramifications. Once signed and returned, you will be barred from asserting a claim for any additional money for injuries known or unknown. So, make sure you’re comfortable with your agreement.
If you are made a settlement offer that is way too low from your opinion of what would be fair, continued negotiating is usually a waste of time. I would consider meeting with an experienced attorney to discuss your case and see if you are being realistic or you are being lowballed. If you determine that you are being lowballed, you may want to hire an attorney. If you are being unrealistic you may want to adjust your sights.
If you receive an offer that is higher than you expected, be careful. You might be missing something. Don’t just jump at the offer. Review the case with an attorney to see if you may be entitled to more money. Once you have arrived at what is a fair amount you can decide on a counter offer.
Finally, if you decide to pursue a claim on your own, make sure you are familiar with all relevant statute of limitations dates. If your claim’s statute of limitations date expires prior to settlement of your case, the carrier will not pay the claim. Also, if you are getting close and the case has not been resolved, an attorney may be reluctant to get involved due to time constraints. So, make sure that if you plan on consulting an attorney that you do it well within the statute of limitations date.