What You Should Do if You are Ever in a Motor Vehicle Accident
The New York Auto Accident Survival Guide was created by Andrews, Bernstein, Maranto & Nicotra, PLLC to help those who have been injured in a car accident. If you or a loved one has been injured, contact our office for a free consultation. We will fight for you!
Auto Accident Cases
Following an auto accident, an insurance company may try to contact you. The insurance company’s goal is simple — to minimize the cost to the insurance company. Insurance Companies have little regard for the well-being of injured victims, and they will do everything possible to protect their interests — even when that means asking victims to sign documents or statements without having an attorney review them, or trying to convince victims to agree to a settlement much lower in value than they deserve.
What Are the First Things I Should Do If I Get in An Auto Accident?
If you ever find yourself in auto accident there are certain things that you must do. The first thing is to stay calm, assess the situation, make sure that you and nobody else near a vehicle requires immediate medical attention such as blood that needs to be stopped or any children who may be even thrown off from their seat. Once you’ve done that also look and assess your position in the roadway. Are you in a safe location in a vehicle sense, or is traffic flying around you on both sides? If it is safe to do so you should look to maneuver your vehicle into a safe location until the police arrive. If it’s possible before doing that, taking photos either with your phone or your camera, or even having one of your passengers do it. If it is drivable you have the responsibility to yourself, to your passengers and others to get that vehicle into a safe location.
Once you are there you should always call the police requesting a police report whenever there is damage more than $1,000 to any vehicle or anybody is injured, even a minor injury, should have report completed. While you’re waiting for the police you can also get out any insurance information registration information and get information from any of the drivers who are involved in the accident. Witness information is also critical to gather. Oftentimes people will stop, ask if you’re okay. If they do that ask if they saw what happened. Many times, people will gladly give you their name and phone number if you ever must call them in the future if something should happen. Many times, after an accident the person that causes it may change their story after the fact either after they called their insurance company or their attorney or if it’s a younger driver they may call their parents. This is the critical time to gather information to protect yourself and your family before anything else can happen. The other thing I also recommend the client try to record is if the other driver says anything to you. Oftentimes they would admit fault or apologize and then later deny that. If they say these types of things while others are around and witness it then it’s also helpful. Whenever somebody is causing an accident, says things that are against their interest this is also called a party admission. These things are admissible, their exception hearsay even though what might seem like a roadside conversation to us it could make the difference in the case down the road when we’re trying to address the issue a personal liability for fault. The other issue that you should address with the emergency call is if people are in need of medical attention. Not only ask for police response but also ask that emergency medical personnel are also summoned. The insurance for the vehicle that you were in is going to cover any treatment including an ambulance ride and an ER visit so if you are injured then it’s appropriate to seek medical attention and understand you’re not going to be sucked with a ambulance bill because with this particular type of the accident it is all covered by no fault insurance. It’s also a big question why then go on ambulance presiding and not a medical insurance? With these types of accidents, you don’t need that. When you’re on the roadside safely the other thing to try to do is take photographs if there are any skid marks, the location of the vehicle, the location of damage to both vehicles if it’s safe to do so.
Especially if the vehicles are drivable you may not see that other person’s car again. If it’s not tot away or not impounded then you can’t find it again so take pictures while you’re at the scene and then make sure that you wait for the police, ask for their report and when the report is complete, and oftentimes, you must wait a day or two until it’s approved
You should always get that report if possible, review it for errors if there are any you should, please, bring it to the attention of the officer who was responding on the scene and provide any witness information to that officer. Sometimes that makes all the difference in the world if in fact we have objective people who are not involved in the accident who also saw it, that can resolve a lot of questions for everybody later and typically that will encompass the things that you should do in first, I guess, few minutes following the accident and then from there your job is just to take care of yourself, seek appropriate care and make sure that you do not speak to either insurance company if they try to call you. Very often you’ll get a phone call from both companies even if they are your own carrier the insurance regulations state they may not talk to you once you have retained counsel without my permission. The question that they ask you are often skewed in their favor or are not concerned with what you need to face down the road. So, remember that it never hurts to call an attorney right away. There’s never cost to do so and having somebody deal with the insurance companies immediately who are prepared to do so is in your best interest also.
Does it Matter When I Receive Medical Care for an Auto Accident?
If you are injured in a car accident and you don’t receive immediate care, that does not preclude you from making a claim for injury if you are injured in a car crash.
A lot of people think they are going to be okay after an accident. The person might feel sore that night or in morning, but they wait for it to go away as if it was muscle pain from working out at the gym. The pain experienced after a car accident is much different because it’s brought on by a traumatic event. Most people will wait a day or even a week until they realize it’s more serious than they thought.
What are No Fault Benefits?
In New York State, everybody who is injured in a car accident is entitled to no-fault benefits. The innocent victim as well as the person who made the mistake or caused the accident, they all get the same initial bundle of benefits through no-fault. It’s your medical benefits, your wages, mileage reimbursement, things like that. People are only entitled to anything beyond that if they qualify as being what they call either seriously injured or a threshold injury in New York State. There are certain very specific categories that you must fit into as defined by law, and your attorney and you are the best ones to go over what categories you might qualify for after the records are in and the injuries have been determined.
What Can be Claimed in an Auto Accident?
There are several different parts that go into most cases for injury components. The most common that they’re aware of is the pain and suffering component. There are also things that come into play that are non-pain and suffering. They’re called economic loss, lost wages, co-pays, unpaid medical bills, maybe a loss of benefits from work, loss of retirement accumulation if you’re out of work for a while. There are a lot of things that we seek recovery for, maybe a loss of health insurance benefits that you would have had but for the happening of the car accident. When we look at the damages portion or the losses involved in a car accident, we try and claim everything that we can to make our claim whole in the end, whether it be economic or non-economic losses.
How Can I Make a Claim if the Driver Didn’t Have Insurance?
In every automobile insurance policy in New York State, an insurance company must offer what is called SUM coverage which is an acronym for Supplementary Uninsured Motorists protection. In most cases, it is what we call unified endorsement and covers people who are uninsured or under-insured. Essentially what that means is if I’m involved in a motor vehicle accident and the vehicle that is at fault and strikes me does not have insurance, I’m able to go to my own insurance company and that insurance company will step in and pay benefits to me, not only for my wage loss and medical, but for my personal injuries as well. Essentially what they do is step into the shoes of the other insurance company to cover my injuries.
Also, in that same endorsement, there is a thing called under-insurance. Let’s say that I’m involved in a motor vehicle accident and I have under-insurance benefits of $500,000. If I get into an accident with someone who only has $25,000 of coverage, I would first go to the insurance company of the defendant or at fault vehicle and get the $25,000 policy from that insurance company. At that point I would then be able to go to my insurance company and I would be eligible to receive an additional $475,000 from my own insurance company. That number is calculated by taking my insurance coverage, my SUM coverage which is $500,000, and subtracting from that what the other insurance company had, which is $25,000.
Insurance Policy Limits You Should Understand
There are limits of insurance that cover the person who caused the injury or accident. When you’re in a car accident, you have insurance limits that you carry under your own policy to protect you in case that person is either underinsured or uninsured. Just focusing on that one, small issue today, we can talk about the importance of keeping adequate coverage on your own policy to cover your family in the time of need.
A lot of insurance agents will explain this to their clients, but many won’t. Especially in this day and age of buying insurance online and getting the cheapest quote, what you don’t understand is that there are little riders. You could pick to choose whether you want rental coverage, how big your deductible is, how much you carry in no-fault limits, and you also choose what you are uninsured or underinsured limits are to protect yourself.
That’s critically important because if you’re struck by somebody who leaves the scene, or by somebody who has no insurance, or someone who has minimal insurance limits, you can still get a very important and significant recovery if you protect yourself through the purchase of supplemental uninsured/underinsured motorist benefits. People who price these limits out are often surprised at how cheap they are in comparison to any of the other coverages they’ve already purchased.
Can I File a Claim if I Was Not Wearing a Seatbelt?
Sometimes clients call and tell us they were injured in an accident due to somebody else’s fault; either they forgot, they were in a hurry, or some people are just opposed to it still. What I tell those clients is you can receive compensation for injuries sustained in that car accident if the seat belt would not have prevented them. For example, if you’re struck from the side and you break your arm against the door, you have a valid claim for that injury. However, if by wearing a seat belt you would not have struck your head on the steering wheel, for example, then you are not protected. It’s called the seat belt defense. What would happen is, although we would claim all the injuries that were caused by the accident, the defendants can assert as a defense that because you weren’t wearing a seat belt those injuries should be either precluded or diminished because of your failure to wear that device.
What Happens if I am Involved in a Car Accident While at Work?
In New York State, we have what we call worker’s compensation statute. Workers’ compensation is primary to no fault and essentially what that means is this: if you are involved in a motor vehicle accident while working worker’s compensation is required to step into the shoes of the no fault carrier, however, worker’s compensation does not pay the exact same benefits as no fault so worker’s compensation will do a step in and pay 2/3 of your lost wages up to a statutory amount. No fault benefits provide for 80% of lost wages. So, essentially, what happens when you’re involved in a motor vehicle accident while you’re working is that initially we will go to the worker’s compensation carrier get the benefits from the worker’s compensation carrier that are appropriate and then also look for the no fault carrier to provide the additional benefits to raise you up to the 80% percent of lost wages to the statutory maximum allowed under the law
How Can a Chiropractor Help Me After an Auto Accident?
Chiropractors are very important with spinal injuries, whether it’s because of a motor vehicle accident, a slip-and-fall accident, or just in general in treating neck and back ailments. Chiropractors are involved in the manipulation of the spine to remove “subluxations” which occur when there’s a trauma to the body.
In a subluxation, spinal bones lose their normal position and motion. Because of an accident or fall, oftentimes they will sublux or pop out of place. When the vertebrae pop out of place it can cause localized pain and it can also cause peripheral types of pain or symptoms. The body knows it’s been injured, and it’ll start to tighten up the muscles. People will start having difficulty turning their heads, flexing, and extending. Once that happens, the chiropractors need to go in to straighten that out. They need to take the subluxations out and put them back into place. By doing so, they remove the pressure off the exiting nerve routes, off the spine, and have everything aligned.
Should I Take the First Settlement Offer?
My answer to that question invariably is absolutely not. To maximize recovery, the first thing I tell my clients as a Buffalo Personal Injury Lawyer, is that we must have patience; patience on behalf of the lawyer and patience on behalf of the client. We only get one shot at this. If we’re jumping at an opportunity to settle the case early on because of a timing requirement as opposed to maximizing the recovery, then the individual will end up walking away with less than they deserve.
To win it’s necessary for us to take those initial offers, counter those offers with a demand that is significant enough, and offers us the ability to bring that insurance company to a number that is appropriate for the case. It’s only after those negotiations (sometimes intense negotiations) that we’re able to get to a number that is proper for the injuries sustained in that case.
How Do We Prevent Lowball Settlements?
Insurance companies are in the business to make money for their shareholders. I can tell you based on a lot of experience in these types of cases they aren’t rushing to offer a case’s worth. I believe that the way to make sure an insurance company doesn’t lowball a case is by letting them know through your conduct and through other cases that you won’t settle a case just to get it settled. They must know that you have the desire to go to trial on cases.
If they think that you don’t have the fortitude to go to trial, they’ll take advantage of that. I’ve seen that with many other attorneys who simply want to settle cases. When they do this, those attorneys can’t get the optimal amount of settlement in the case, because the insurance companies are aware that they will not take it to the level that they need to raise that number up. I’d say the number one thing for an insurance company to know about you is to know that you are willing to go through a trial, have a jury bring you a verdict and in other cases they’ll respect that as you go forward.
Should We Take My Case to Trial?
The benefits of proceeding to trial – or deciding not to do so – can be innumerable. Obviously, if an insurance company has undervalued your case, taking the case to trial would be one positive approach to getting the money you deserve because of the injuries you sustained. One negative factor to consider in going to trial is that certain costs are associated with that approach.
I will have to prove the extent of your physical injuries through the testimony of medical doctors – and those doctors will charge a fee for appearing at trial. One element in deciding whether we will proceed to trial is whether the doctors will charge too much; however, even in those cases, we can do certain things and proceed to trial without the need to bring doctors in to testify. Certain trials permit the injured party to submit records. Ultimately, based on our recommendations, you will decide whether a trial is appropriate and whether the risk vs. reward is worthwhile.
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