Should I File a Personal Injury Claim or a Lawsuit? Part 2

Wednesday, February 25th, 2015

Our previous blog post described a hypothetical car accident insurance claim and an insurance claim that leads to a demand letter. This post will discuss the circumstances under which you should consider talking with a lawyer about filing a personal injury lawsuit.

We described two scenarios in the first blog post – a rear-end accident where no one was injured, and another accident in which your soft tissue injuries required physical therapy, medical, and resulted in time lost from work. This third accident resulted in much more serious injuries than the first two.

Serious Injury Scenario

Let’s say that you are injured by a delivery truck that is speeding down the Grand Concourse in the Bronx. The driver loses control of the truck and slams into your car at high speed. You are rendered unconscious by the impact of the crash and are taken by ambulance to the nearest hospital. You remain unconscious for a day, during which time surgery is performed to repair your broken bones and internal injuries. Your car is totalled. The passenger in your car is also injured, although less seriously than you. When you are finally awake, you ask your spouse to notify the insurance company about your accident. An insurance adjuster from the company that owned the delivery ban looks at the remains of the car, which was towed, and offers a generous amount for replacement. The insurance company also asks to see your medical records and may even send the adjuster to visit you in the hospital. They may even offer you money, if you will settle your claim.

Why the Insurance Company May Contact You

The amount of money may seem generous. However, the insurance company wants to close the claim now so that you will not file a lawsuit. This suggests that the company believes you could win a lawsuit or that you deserve more than they are offering you. However, you are unable to pursue this further because you develop complications and need additional surgery. Your spouse is too busy to follow up with the insurance company, so nothing happens for a while. However, you improve to the point where you can go home, although you still need frequent doctor visits and are unable to go back to work. The other driver’s insurance company contacts you again, offering to settle your claim. However, you still cannot return to work because of extreme pain and a post-operative infection that seems to resist medication. You become depressed and wonder if you will ever be able to return to a normal life. The other insurance company becomes very persistent, asking you to accept the offer. You wonder what to do.

This is when you contact a lawyer who knows how to deal with insurance companies and accident injury matters. Because your situation is so uncertain, you do not want to accept the insurance company’s offer right now – you still don’t know if life will ever return to normal. However, you think you are not the type of person to file a lawsuit – stuff happens, right? You need to find out about your options, because at this stage you don’t know if you will ever recover enough to take care of your family.

Talk With a Lawyer

You talk with an accident lawyer who understands New York accident law and has experience with cases like yours. The attorney convinces you to refer any more inquiries from the other driver’s insurance company to the law firm. Now you do not have to deal with the adjuster any more, and it is a great relief. The attorney also sends a demand letter asking for compensation for past, present and future medical expenses and lost income. The insurance company will only pay for past and present expenses, not future. The lawyer advises you that it is time to file a lawsuit against the insurance company covering the at-fault driver’s company. What happens next?

Usually one of two things happens. Either the case goes to arbitration or it goes to trial. Even if you chose to go to trial, most cases are settled before you go to court when an attorney negotiates an acceptable settlement. Cases that are resolved through arbitration involve a third party – the arbitrator – determining fault and acceptable compensation. An arbitrator’s determination is usually final. However, some accident injury cases do proceed to a civil trial.

Pros and Cons of Going to Trial

There are pros and cons to going to trial after an accident caused by an at-fault driver. The biggest downside to going to trial is that it takes a long time before you receive any money. The insurance company will delay, file motions and use its considerable legal resources to argue for a dismissal or to say that you were actually at-fault. The company’s lawyers may even try to suggest that you were drunk or somehow incapacitated. You need to decide whether you are willing to go through the experience. The biggest reason to go to trial is that this will maximize your chances of receiving full and fair compensation. You and your lawyer can decide together on the best course of action.

Our next blog post will discuss what could happen during a personal injury trial.


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