Block O'Toole & Murphy
New York Personal Injury Lawyers
For a Free Consultation Call
212-736-5300 212-736-5300

Should I File a Personal Injury Claim or a Lawsuit? Part 1

The terms "claim" and "lawsuit" are used frequently in this blog and most other personal injury websites. In many instances they are used interchangeably. But are they really the same thing?

The answer is that a personal injury claim and a personal injury lawsuit are very different and it is helpful to understand that difference in order know what to do after an injury suffered in a car crash or other type of accident.

Generally speaking, the word claim refers to a claim against an insurance company, whether the claim is against your own insurance company or that of another person involved in the car accident. A lawsuit is a legal action filed in civil court against the party who caused your injuries. The examples below can illustrate the differences.

Insurance Claim

Let's pretend you were rear-ended while stopped at a red light. Because the vehicle that hit you was travelling slowly, neither of you are injured. However, the back of your car is crushed and the trunk lock is broken. You call your insurance company to notify them of the accident and that you will be filing a claim. An estimator comes to look at your car and report the amount the insurance company will pay to repair the damage. You then go to a body shop to have the repairs done. The body shop bills the insurance company, which may then turn around and bill the other driver's insurance company because he or she was almost certainly at fault in the accident - most rear end accidents are the fault of the second driver. This is an example of an accident claim against an insurance company. Although sometimes it can be frustrating and time-consuming, it is relatively straightforward. Your get your car repaired and that's the end of it.

Insurance Claim Plus Demand Letter

Another accident might not be as clear-cut. Let's say you are driving your car south on Ninth Avenue in Manhattan. It's Saturday night, and there are lots of tourists and theatergoers on the sidewalks. There are pedicabs and bicycle delivery drivers on the streets. There is a lot of traffic and a lot of people. Suddenly a pedestrian walks right in front of your car. You swerve to avoid him, and another vehicle hits you from behind as you swing into the next lane of traffic. Your airbag deploys as the other car crashes into you. You are both travelling around 30 MPH when the crash occurs. You are dazed by the force of the impact and the deployment of the airbag, but you appear to have no broken bones. Your neck and shoulders hurt a little. When you get out of the car, you see that the front end and side where the other car hit you are completely caved in. In fact, you can't move your car. The other driver's car is also damaged. You call the police. The dispatcher calls a tow truck, which arrives at the same time as the squad car. The officers ask if you are hurt. You say that you don't think you are hurt. They tell you to see your doctor soon and write up the accident. You sign an authorization allowing your car to be towed to your usual garage. You hail a cab and go home.

This is not the end of the story, however. The next day, you are sore, but feeling OK. You call your insurance company to notify them of the accident. You go to work. You do not go to the doctor. The insurance adjuster goes to the garage and determines that the car was totalled and negotiates an amount that you think it slightly low but not worth fighting. A week passes. Your soreness does not go away; it gets worse. You finally go to the doctor, who takes x-rays. The doctor tells you that you have deep bruises and a possibly damaged

disc or vertebrae. You are prescribed painkillers and a course of physical therapy. The painkillers make you so sleepy that it is difficult to stay wake at work. The physical therapy doesn't do much. You have accepted the offer from the insurance company about car replacement compensation. However, your neck and shoulder pain are no better. You are so wiped out by the painkillers and PT that you are starting to miss more work. Your sick leave runs out. You are getting worried about the future. You talk to your insurance agent about your options, but are told that because you accepted the offer for your car you have no recourse. What do you do now?

This is the time to send a demand letter to the insurance company to help with your medical expenses and the income lost because you no longer have sick leave. You probably do not need an attorney to help you with this; there are numerous websites that detail how to compose and send a demand letter. However, an attorney might be able to help, especially if your injuries have developed into something more serious as time passes. Demand letters often get the attention of insurance companies and yours eventually agrees to pay you for your reduced income and ongoing physical therapy and medication costs. You very slowly get better, although it takes much longer than you anticipated.

However, if your insurance company does not agree pay you as requested in your demand letter, you still have other options, including filing a personal injury lawsuit. The next blog post will provide some details about this option.

Note: Each person's situation is different and this blog cannot anticipate all the possible ways an insurance claim may turn out. These descriptions are illustrative only.