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222
South Gillette Avenue Suite 601,
Gillette, Wyoming 82716
Call Toll Free: 1-866-435-1606 / Fax: (307) 682-9888
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Personal Injury Questions
If I was injured in an accident, how do I legally prove how it
happened?
"Legal proof" is merely evidence that supports your claim. It
may come from witnesses, facts, photographs, documents, or other
sources. In the case of an injury, it is usually important to
obtain evidence as soon as possible, before witnesses begin to
forget, documents misplaced, or the opportunity for accurate photographs
lost. Legal counsel should be involved in the process of obtaining
and documenting evidence. Typically, resolution of a personal
injury case can occur in one of two ways. Many cases are negotiated
and settled prior to trial. Other cases are resolved through trial.
Obtaining and documenting evidence to support a claim is critical
to either settlement or trial. Because of the importance of obtaining
and document evidence early on, and because of the need for legal
counsel in any significant injury situation, it is important to
seek legal advice sooner rather than later. Negotiations with
an opposing party usually take place between your attorney and
a representative of that party, usually an insurance company agent
or another attorney. In those negotiations, it is important to
make a reasonable argument -- in plain language -- that the other
person (or company) was careless, even if there are also plausible
arguments on the other side. If you make a good argument why the
other person was at fault, many times the adjuster will realize
that if the matter ever wound up in court, there is a good possibility
that its insured person would be found legally responsible. Many
times, companies prefer to pay a reasonable claim settlement sooner,
rather than risk having to later pay not only for your injuries,
but also court costs.
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Can I get compensation if an accident might have been partly my fault?
Even if you might have partly caused an accident yourself, you
can still receive compensation from someone else who was careless
and partly caused the accident. The amount of another person's
responsibility is determined by comparing his or her carelessness
with your own. For example, if you were 25% at fault and the other
person was 75% at fault, the other person must pay -- through
the insurance company -- 75% of the fair compensation for your
injuries. This rule is called "comparative negligence."
In practice, the question of whether your carelessness actually
contributed to the accident is a point to negotiate with the adjuster.
There is no formula for assigning a percentage to your and the
other person's carelessness. During claim negotiations, you will
come up with one number; the adjuster will come up with another,
and explain why you bear greater responsibility for the accident.
The different percentages you each arrive at then simply go into
the negotiating hopper with all the other factors that determine
how much a claim is worth.
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What if my physical limitations made the accident more likely
or made my injuries worse?
What if you have a bad knee, which makes one leg a bit unsteady? Or
if your eyesight, even with glasses, is not very strong? If you fall
on a broken stair, are you still entitled to compensation even though
someone with stronger legs or better eyesight might not have fallen?
All people, regardless of physical ability, have a legal
right to make their way through the world without unnecessary danger.
Owners and occupants of property should permit no unnecessary danger
to any person who might reasonably be expected to be on the property.
The same goes for drivers and everyone else -- they must not create
unnecessary danger to anyone whose path they might cross.
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How do insurance companies decide how much they'll pay to compensate
someone for an injury?
Insurance companies and lawyers use a formula to calculate a range
of compensation for an injury. The final payment figure, though, is
the result of negotiations with the injured person.
In general, an injured person will be reimbursed
for:
- Medical care
- Lost income temporary, permanent pain and other physical discomfort
- Loss of family, social and educational experiences.
A claims adjuster begins with the medical expenses. Then the intangibles
-- pain and other non-economic losses -- are added in by multiplying
the medical expenses by 1.5 to 2 times if the injuries are relatively
minor, and up to 5 times if the injuries are more significant. The
multiplier can go still higher -- sometimes as much as 10 times medical
expenses -- if the injuries are particularly painful, serious or long-lasting.
Lost income is also added to that amount. Several factors raise
the damages formula from the 1.5-times end toward the 5-times end:
more painful, serious or long-lasting injuries; more invasive or long-lasting
medical treatment; clearer medical evidence of extent of injuries; more
obvious evidence of the other person's fault, and less of your fault.
You, too, can use this formula as the starting point for negotiations.
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Will my health insurance coverage or paid sick leave from work limit
my compensation for an accident? Whether you paid for medical
care out of your own pocket or your health insurance covered it is
none of a claims adjuster's business. The same goes for whether your
lost time at work was covered by sick leave or vacation pay. In fact,
it is improper for an adjuster even to ask about such payments. You
paid for your health insurance and earned your sick leave or vacation
pay; now the insurance for the person who caused the accident has
to pay. Your own health insurance, however, may require that, out
of your settlement, you reimburse it for some or all of the amounts
it has paid to treat your injuries.
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I have just been in an automobile accident, what is the first
thing I should do?
If you are injured in an accident, it is important to seek treatment
immediately. Sometimes serious injuries do not cause immediate pain.
If you experience even minor pain after an accident, seek treatment
immediately. Remember to obtain the name, address, license number,
and insurance information from the other drivers involved.
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Should I tell my version of what happened to anyone or should I
"remain silent?"
If the accident is serious, or if you are partially or totally at
fault in the accident, you should contact a lawyer prior to speaking
to anyone, if practical. Your lawyer can review the facts with you
to ensure that your statement is clear and factually correct. If necessary,
your lawyer can help you fill out any required accident reports and
insurance claim forms. You will be asked at some point to provide
your version of the accident, often by police if they are called to
the scene. Most, if not all states, will require you to file an accident
report with the department of motor vehicles. Your insurance company
and the other driver's insurance company will also want your version
of the accident.
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If I have been injured, who will pay my medical bills?
Most, if not all states require drivers to carry automobile insurance.
Most insurance policies have "no fault" coverage, meaning that your
insurance company will pay your medical bills regardless of who is
at fault, up to the amount of the "no fault" coverage. If you have health
insurance, you may also get coverage under your health policy. Most health
care providers will have different
billing procedures depending on whether your treatment is being covered
by your auto or health insurer. Who will pay for the damage to my
car? If you have purchased collision insurance, your insurance company
will pay to have your car fixed or will pay you the value of the vehicle
in a total loss. If you are not at fault in the accident, your insurance
company will seek to be reimbursed by the insurer of the driver at
fault. If you do not have collision, and you are not at fault, the
insurer of the driver at fault should be responisble for your property damage.
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Can I get money for my lost wages and pain and suffering?
Properly documented lost wages, both past and future, are proper elements
of your claim. In addition, Wyoming law also allows recovery for pain and
suffering, and for loss of enjoyment of life resulting from the injuries.
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If I decide to sue, will I have to go to court?
Many car accident cases settle out of court. In some cases, it is
clear who was at fault in the accident. Upon proper proof of damages
and medical documentation, insurance companies will sometimes settle the claim
without the need for filing a lawsuit or having a trial. However,
in other cases, the insurance company may deny liability on a claim
and a lawsuit will be necessary.
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What happens in a lawsuit?
A lawsuit begins by filing a complaint. The person filing the complaint
is called the plaintiff and person against who the complaint is filed
is called the defendant. The defendant must file an answer addressing
the allegations contained in the complaint and must raise any defenses
the defendant may have. The defendant's insurance company will hire
an attorney to represent the defendant and will pay any damages, up
to the policy limits, that the plaintiff recovers in the lawsuit.
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What happens next?
The defendant may submit written questions to you to be answered under
oath and may ask you to provide documents. Your attorney will assist
you in the preparation of these materials. You may also be called
for a deposition, where the defendant's attorney will ask you a series
of questions before a stenographer. Your attorney will help you prepare
for the deposition and will attend the deposition with you. Your attorney
will also object to any improper questions asked during the deposition.
Your lawyer will also likely submit questions to the defendant, request
documents from the defendant, and conduct the deposition of the defendant.
Witnesses to the accident may also be called in for depositions, but
this is not usually done in small cases.
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What happens at trial?
If the case goes to trial, the plaintiff goes first and presents his
or her witnesses, documents and any other evidence which helps prove
the plaintiff's case. The defendant then puts on his or her witnesses,
documents and any other evidence in defense. The case is then presented
to the judge or jury, who decides who wins and, if the plaintiff wins,
the judge or jury decides how much money the plaintiff gets.
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If I receive other benefits, such as health insurance as a result
of the accident, will I have to repay those benefits from my settlement?
Your health insurer can file a lien on your case, in which case
you will be required to pay these liens from your settlement. Your
attorney can help to negotiate these liens and most insurers will
be reasonable in negotiating the liens. In addition, if you have received
Wyoming Workers Compensation, the State of Wyoming "is entitled to
be reimbursed for all payments made, or to be made . . . but not to
exceed 1/3 of the total proceeds". See W.S. § 27-14-105. Many times
this amount can be negotiated to less than 1/3 of the recovery.
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