You are on page 1of 51


com ______________________________________________________________________________

Who I am and why I wrote this book.............................................................3 READ THIS FIRST!....................................................................................5 DO YOU EVEN NEED A LAWYER? ..........................................................7 NOT ALL ATTORNEYS ARE CREATED EQUAL ...................................9 7 MISTAKES IN SELECTING AN ACCIDENT LAWYER ......................9 THE PLAYERS - People and Parties involved in a Claim.........................12 YOUVE HIRED AN ATTORNEY...WHATS NEXT? ............................14 CANT GET BLOOD FROM A STONE!..................................................20 The importance of Uninsured/Under-insured Motorist Coverage ...............20 What does the phrase Comparative Fault mean anyways? .....................21 PERSONAL INJURY DAMAGES - What youre able to recover............22 LOST INCOME AND LOSS OF EARNING CAPACITY ........................24 Can I recover for lost wages?.......................................................................24 Can I recover from income Ill likely lose in the future?.............................24 How might experts help determine my loss?...............................................25 Can I be compensated for lost income if I am self-employed?....................26 If self-employed, how is lost income calculated?........................................26 My doctor releases me to return to work, but Im in pain!..........................27 LOSS OF CONSORTIUM DAMAGES - Your spouse may be entitled to damages as well..........................................................................................28 MEDICAL BILLS, INSURANCE COVERAGE & RELATED ISSUES ........................................................................................................30 Can I recover for my medical expenses?.....................................................30 What is Med-Pay Coverage and why its good to have...............................30 I dont have health insurance!......................................................................31 Uninsured/Underinsured Motorist Protection is VITAL!............................32 1

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK _____________________________________________________________ Medi-Cal/MediCare/ERISA Liens...............................................................34 Out of Pocket Expenses...............................................................................36 In-Home Nursing Care/Attendant Care.......................................................36 Household Chores/Replacement Services....................................................36 Home Modifications and Accommodations.................................................37 COMMON PERSONAL INJURY QUESTIONS ......................................38 I've been injured -- what should I do first?..................................................38 How do I know if I have a claim worth pursuing?.......................................38 What kind of factors may effect the value of a claim?................................39 Do I have a time limit in which to bring a claim?........................................40 What if the at fault party does not have auto insurance?.............................41 What if the at fault party has very little insurance coverage?......................41 What is a wrongful death claim?..................................................................42 Do I have to go to court to receive a settlement?.........................................42 Do I need to pay back my health insurance after my case is settled?..........42 AUTO DAMAGE CLAIMS ........................................................................44 Who pays to get my car fixed?.....................................................................44 Why you should pay the deductible to have your insurance fix your car, even if the accident wasnt your fault..................................................44 Can I get my car repaired at any body shop?...............................................45 My cars totaled...what will I be paid?.........................................................45 If the car is a total loss does the insurance company pay the whole value?.45 Help, I need a rental car!..............................................................................46 What if the other drivers insurance company and I disagree on property damage issues?....................................................................................47 Loss of Use - Youre entitled to it!..............................................................47 Can I keep my car, even if its totaled?........................................................48 The accident was my fault............................................................................48 Sign up for our Free Newsletter .................................................................50

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK __________________________________________________________________ Who I Am and Why I Wrote This Book Im Ed Smith and am founder and owner of the Law Offices of Edward A. Smith. I have been helping injured people as a trial lawyer in California for over thirty years. Im originally from Brooklyn, New York and after service in the U.S. Air Force during the Vietnam War I settled in Sacramento, California. I attended U.C. Davis as an undergrad and law school at McGeorge School of Law. I am recognized as an expert in cases involving auto accident injury cases and auto insurance laws. I am frequently asked to speak to groups of other lawyers on these topics and am often contacted by medical professionals who have questions on behalf of their patients who have been injured in accidents. I am also a member of the Million Dollar Forum, an organization of attorneys who have multiple verdicts and settlements of over $1,000,000.00. I have a nationally recognized personal injury website. Although my sites named auto accident we have extensive experience many aspects of personal injury law including accident involving semi-trucks, water craft, and motorcycles, as well as animal attacks and serious slip and falls. I wrote this book to help you understand your legal rights should you be injured in an auto accident. The insurance laws in California that apply to auto accidents are very complicated and change on a daily basis. This book may not answer all of your questions and simply cannot cover every aspect of California law. To learn more about my record of success, please visit our firm web site for some examples of the settlements and jury verdicts that were obtained for my clients. I always look forward to sharing my expertise with new clients and gladly speak with all persons who call my office. If you know others who would benefit from this book, please have them call my office and I will send them a copy free of charge. - Ed Smith Law Offices of Edward A. Smith 1900 Point West Way, Suite 200 Sacramento, CA 95815 (916) 921-6400, 1-800-404-5400 3

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________

Legal Notice Before we move on, you should not take the information in the book as personal legal advice, nor should it be intended to take the place of legal representation. It is solely intended to be informative and to provide you and your family with a basic and general understanding of your potential rights. If you hire my firm to represent you or a family member for a case, I will fully explain your legal rights under California law to you and assist you in filing your claims. If you have already hired a lawyer before reading this book, you should contact your lawyer with specific questions about your legal rights and benefits. Remember, the information provided in this book are general statements. The law is continuously changing and I urge you to contact an attorney if you have any specific questions concerning any potential claims you may possess. In writing this book, the male pronoun is used throughout solely for readability and in an effort to avoid confusion.

______________________________________________________________________________ 4

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________ READ THIS FIRST! You have been injured in an auto accident through no fault of your own. A ton of questions are in your head: < < < < < < < < Will I be paid for the time lost from work? Will my medical bills get paid? What do I do if the person who hit my car doesnt have insurance? Will my car be repaired? What if my injuries prevent me from ever returning to my job? What will the insurance company offer me for my injuries? How will I know that the insurance settlement is fair? How will I know if I have a competent lawyer? The list goes on and on and on....heres some simple answers: Generally, when you are involved in a car accident in California, there are many types of claims you can make but the two most common are: 1. 2. CAR REPAIRS AND DAMAGES CLAIMS; BODILY INJURY CLAIMS.

No big surprise here, right? Unfortunately, it gets trickier and more complicated. Theres lots of issues within both to consider. In this book, I will tell you how to successfully make these claims and hopefully answer many of the most common questions, and even a few you might not consider but depending on your specific situation, can have a huge effect on your success. Unfortunately, in our legal system you get one shot, and one shot only at your claim, be it for your wrecked car or your injured body. Once you accept a check and sign a release, thats it! You cannot the next day say wait a minute I forgot this or oh geez I didnt think about that. ______________________________________________________________________________ 5

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________ Its absolutely vital you understand the rules and the process because once you resolve a claim, thats final! Knowledge is power. Empower yourself and the chances of being taken advantage of are far smaller. Hopefully this book will help you towards that goal. If you have questions that are not answered in this book, you can always pick up the telephone and give me a call. My toll-free number is 1-800-404-5400 or locally to Sacramento, (916) 921-6400 . How many how-to books offer the personal attention of the author at your disposal? Not many, Id say, so please feel free to take advantage! Lastly, check out my website at Theres a ton of information there as well.

______________________________________________________________________________ 6

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________ DO YOU EVEN NEED A LAWYER? Well, honestly, an attorney may not be needed to handle all types of claims -- for some small, uncomplicated claims, an attorney simply won't be of economic benefit to you, and a good attorney will tell you this. A personal injury attorney should basically be providing two services to you: 1) the attorney's skill, experience, and knowledge should add to the value of your claim, and 2) the attorney should handle all the insurance and legal meetings, paperwork, telephone calls, negotiating, court appearances, etc., necessary to resolve your case. If you have a claim so simple that the attorney is unlikely to be able to add significantly to its value, and the required paperwork and negotiating is minimal and straightforward, then an attorney should advise you that you are likely to end up putting more money in your pocket by handling your claim yourself than by hiring an attorney to do so. On the other hand, have you performed an appendectomy on yourself lately? If performing a moderately complicated medical procedure on yourself doesn't sound appealing, then handling a moderately complicated personal injury claim shouldn't either. Handling your legal claim yourself won't cost you your life -- it may only cost you thousands of dollars. By analogy, if a simple personal injury is a "hangnail" claim that the average person is easily capable of "clipping," then more complicated personal injury claims may be equivalent to more complicated medical procedures. Do you feel capable of performing surgery on yourself? Setting your own broken bones? An experienced attorney will be able to handle all the insurance and legal requirements necessary to resolve your claim while avoiding the numerous stumbling blocks that will be thrown up to slow the process. A plaintiff's personal injury attorney can also maximize the value of your claim by presenting every relevant medical and legal fact to an opposing insurance company or insurance defense attorney. The driver who struck your car was found to be drunk and to have a history of drunk driving convictions -______________________________________________________________________________ 7

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________ should this increase the value of your claim? Your doctor tells you that the collision caused only a relatively minor strain injury to your neck, but you feel that it has caused a flare-up in the arthritis you've been experiencing for years -can you be compensated for this? A good personal injury attorney will track down every one of these legal and medical facts and present them in a way that will maximize the value of your claim. A good personal injury attorney will also listen to you and to your family members and friends. Listening carefully will reveal the many ways an injury impacts your family, social and work life. Finally, a good personal injury attorney will collaborate with you as your case moves through the stages before resolution. Handling an injury case is a cooperative effort. Make sure you feel comfortable with the attorney you hire.

______________________________________________________________________________ 8

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________ NOT ALL ATTORNEYS ARE CREATED EQUAL The law in California regarding motor vehicle accidents is complicated and changes frequently. The fact that Attorney Ernie drafted a will for your uncle or that Lawyer Linda handled your cousins divorce case does not make them qualified to handle an auto accident case. Many attorneys who claim to be specialists in auto accident cases do not know the intricacies of these laws. While many lawyers will offer to represent you in your case, it is important to choose a lawyer who handles serious motor vehicle accident injury cases everyday and has significant expertise in representing injury victims. Lawyers without this knowledge and experience may not be familiar with or even understand these laws and its many technicalities - shortcomings which could cause you to lose your benefits and your opportunity to obtain a settlement. 7 MISTAKES IN SELECTING AN ACCIDENT LAWYER If you have been injured, you get only one chance to obtain the compensation you deserve. One of the most important decisions you make in your lifetime will be the lawyer you chose to take on this task. Im going to expose seven common mistakes that are made in selecting a lawyer so that you have a better chance of choosing one that is right for you. MISTAKE #1 Selecting an attorney who is not a specialist, or choosing someone who does wills, trusts and bankruptcy or real estate instead of exclusively personal injury law. Personal injury law is intricate and involves many specialized rules and practices. You risk the quality of your representation if you choose an attorney that does not specialize in personal injury law. MISTAKE #2 Selecting an attorney who does not go to trials , arbitrations or mediations.

______________________________________________________________________________ 9

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________ Many if not most attorneys who advertise they handle personal injury cases have never seen the inside of a courtroom. They take your case then if push comes to shove, try to pressure you to settle for a pittance. Insurance companies are very aggressive. If they know your attorney doesn't go to trial and is afraid of the courtroom, they will take advantage of this and make ridiculous offers or make little or no effort to settle your case. They know your attorney is bluffing and will fold his hand...and pressure you to fold too when he sees the insurer isn't going to budge. If your attorney isn't willing to put the case before a jury, the insurer knows it..and it will hurt you. MISTAKE #3 Selecting an attorney without a track record. If you have a large case with serious injuries it's important to know that your attorney can deliver a large verdict or settlement. Ask your attorney how many million dollar verdicts or settlements he has had. Is he a member of the Million Dollar Forum? The Million Dollar Forum is a renowned organization of attorneys who have settled or tried cases worth a million dollars or more. Not every case is worth a million dollars, but if you have that kind of a case, make sure you have an attorney who can deliver the goods. MISTAKE #4 Hiring an attorney who is not a member of National and Local Trial Lawyer Groups such as the Consumer Attorneys of California and AAJ, the American Association for Justice . Serious personal injury attorneys collaborate with and learn from other excellent personal injury attorneys. In today's very difficult environment where insurers are not hesitant to use dirty tricks and underhanded methods to make injured people look bad, its critical to be up to date and to know what the insurers are up to. MISTAKE #5 Hiring an attorney who does not have sufficient resources to take your case seriously. When you hire an attorney, look around, does he or she look like they are successful? Does their office look like they are doing well? Does the attorney have a line of credit or personal assets necessary to properly prepare your case? ______________________________________________________________________________ 10

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________ Serious personal injury cases are expensive to prepare. Many experts are necessary to properly prepare a case. Often many doctors must have their depositions taken and later appear in Court. Other experts such as economists, biomechanics, accident reconstructionists, vocational rehabilitation specialists and life care planners must be hired and hiring these experts can be expensive. The expense in a single case can often exceed over $100,000 if properly prepared. Make sure your attorney has enough money to play with the big boys. If your attorney isnt committed to spending money on your case, consider looking elsewhere. MISTAKE #6 Not allowing you to talk to his past clients. If an attorney is any good do you think he'd have any problem with allowing you to talk to the past clients he's represented? Any attorney worth his salt has clients he's not ashamed to allow you to talk to. If an attorney tells you he can't allow you to speak to past clients, you should consider carefully that perhaps there's a reason for that...that perhaps he hasn't done such a good job for those clients in the past. MISTAKE #7 Hiring an attorney who hasn't written and lectured in the personal injury field . Ask the attorney you are considering hiring about articles he's written in the personal injury field and presentations he's given to other personal injury lawyers. Has he had a public service TV show where he's talked to the public about personal injury matters. If the attorney has never written, never given presentations to other lawyers, never hosted a TV show...consider how much he likely knows about his field.

______________________________________________________________________________ 11

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________ The Players - People and Parties Involved in a Personal Injury Claim The Parties: The "parties" to the case include the persons who were actually injured and have a right to bring a personal injury claim, as well as any of the injured persons relatives who may also have a right to bring a claim. Prior to the filing of a lawsuit, these people are referred to as the "claimants," and they become the "plaintiffs" when and if a lawsuit is filed in court. On the other side are the persons who directly caused the injuries, and sometimes the people/corporations/governments who employed the persons who caused the injuries, who owned the vehicles that caused injury, or who owned or controlled the property where the injuries occurred. These persons are generally referred to as the "insureds" in an insurance claim -- that is, they are the people and entities against whose insurance policies the claim is being submitted. If a lawsuit is filed in court, these will become the "defendants." An important role played by a personal injury attorney is determining all the potential parties in a case. If a claimant is left out, then his/her rights to recover may be permanently lost. If a defendant is left out, then a potential source of settlement funds may be overlooked. The Adjusters and Attorneys: As soon as an accident injury is reported to an insurance company, an "adjuster" (also called a "claims adjuster") will be assigned to handle the claim. The adjuster is usually (but not always) a direct employee of the insurance company. If more than one insurance company is involved in a single incident, then each and every insurance company will have at least one adjuster assigned to the matter. If an attorney is formally retained by the injured party, he/she becomes the legal representative of the claimant(s). If it becomes necessary to file a lawsuit in ______________________________________________________________________________ 12

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________ court and the defendants are served with the legal papers, then they or their insurance company will arrange to hire a "defense attorney" (also known as an "insurance defense attorney") to represent them. The Legal Team: No attorney is an island, no attorney can handle every aspect of a client's case, and no attorney is an expert in everything. That's why a good legal team will frequently include private investigators to search out witnesses and physical facts, paralegals to handle the day-to-day paperwork and legal details in a case, and consultants and experts to sort out complicated medical, engineering, and economic information. Since every claim is unique, the specific members of the legal team who are needed will vary from case to case. Selecting those team members who will best serve a particular client's interests is a primary duty of the personal injury attorney

______________________________________________________________________________ 13

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________ YOUVE HIRED AN ATTORNEY...WHATS NEXT? Youve decided to hire an what? Heres a little of what to expect: Initial Steps - Early Stages Early in the process, you should engage in an extensive and detailed interview with your attorney. Your attorney should question you and you should be forthright about detailing your medical history, employment history, and driving history. The clearer the picture you provide, and the more questions your attorneys asks, the better. The more your attorney knows about you, the better he/shes able to represent you. Next, your attorney will inform the requisite insurance companies that youre represented by counsel. This does two things: 1. Begins the dialogue between your attorney and insurance representatives; and 2. Prevents insurance adjusters from pestering you and attempting to obtain information from you which is protected by your right of privacy. Whether youre pursuing a claim against the at-fault partys insurance company or your own, as in the case of an under-insured/uninsured motorist claim, insurance companies have an incentive to get you to settle quickly. The quicker you settle, the more likely youll settle for an amount less than the true worth of your claim. Remember, you have one shot and one shot only at settling your case. Once you settle and accept a settlement check, thats it, there no going back and re-opening your claim. Similarly, your attorney should not aggressively pressure you to settle before your medical treatment is completed. Your attorney should be patient and willing to let your medical treatment resolve before negotiating a settlement. In addition to informing the requisite insurance companies of your representation, your lawyer will be then work to obtain information and documentation such as property damage photos, repair shop estimates, traffic ______________________________________________________________________________ 14

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________ collision reports, witness information and/or statements, and so on and so forth, i.e., any evidence to show that: 1. The collision wasnt your fault; and 2. The collision was severe enough to cause you harm. At the onset of representation, assuming youve contacted your attorney shortly after the auto accident and youre still obtaining medical care, your lawyer should periodically keep in contact with you about how you feel, if there are any new medical complaints, and if you are receiving medical treatment and with whom. Your attorney should be documenting your medical care in your file, and doing it regularly to ensure no bits of information, potentially vital to your claim, falls in the cracks. It is important that your attorney keep informed of changes in your symptoms and/or changes in your medical care and your attorney should detail your file with this information so when its time to present your claim to the insurance company, every aspect of your treatment is provided. When your health has stabilized and your treatment is complete, your attorney will work to obtain all the requisite medical records and billings to ensure that all of your care and costs of same are accounted for. Your attorney will also work with you to obtain documentation of time youve lost from work so a claim for lost income can be made as well. Pre-Lawsuit Settlement Negotiations Once your attorney possesses all the necessary documentation, a Demand Package is commonly prepared. A Demand Package is what is sent to the at fault partys insurance company demanding a specific total amount to settle all your claims. The ideal of a Demand Package is to present your total picture . Details of the auto accident are discussed and evidence detailing the collision should be attached as exhibits (e.g., property damage estimates, photographs, a copy of the traffic collision report, etc.).

______________________________________________________________________________ 15

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________ Records from all your medical providers and medical billings should also be attached. If youll require future medical care, your Demand Package should discuss this as well. Documentation of lost income from work should be included. Payroll records, pay stubs and the like should be attached as exhibits to detail the amount of work youve missed as a result of injuries incurred in the auto collision. The Demand Package lets the requisite insurance company know what youve been through as a result of the auto accident, and what itll take to fairly compensate you for your losses. Most importantly, your attorney should describe the effect your injuries have had not only to you, but also to your loved ones. General damages, otherwise knows as pain and suffering damages, are maximized when your attorney capably conveys the effect your injuries have had on your life. After the insurance company has had a chance to review your Demand Package your attorney should receive an Offer from the insurance company to settle your case. This is an amount that the insurance company is willing to offer to completely resolve all your claims. At this point your attorney will convey this amount to you and youll have three choices: 1. Accept the amount to completely settle your claims; 2. Instruct your attorney to negotiate with the insurance company hoping the insurance company will raise the offer to an amount youre comfortable with; or 3. Decline the offer. Your attorney should advise you of the pros and cons of each option, and perhaps steer you towards one option over another, but ultimately the choice is yours. Many claims settle at this point. If the attorney has done a good job presenting your claim via the Demand Package, a fair offer will hopefully be made, and further negotiations will have raised the offer to an acceptable amount.

______________________________________________________________________________ 16

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________ If negotiations have failed, and you feel the insurance company isnt being reasonable and is devaluing you claim, you have the option to file a lawsuit. This is a hardball tactic which many people loathe because litigation can be time consuming and costly, but a good attorney will be more than willing to follow this path if it is believed this is the best way to ensure youre treated fairly. With many injuries, unfortunately, filing suit is the only way to eventually obtain a fair resolution of the case. Filing a Lawsuit - The Litigation Process You and your attorney decide your best option is litigation. A Summons and Complaint is filed by your attorney on your behalf. Now you are on the courts time line. What this means is the court, depending on the county youve decided to file your complaint (generally the county in which the accident occurred), will require you to complete specific steps in the litigation process in an effort to resolve your case prior to setting your case for trial. Different counties have varying time requirements and rules, but there are similarities. First, most courts allow a certain amount of time, generally at the commencement of a lawsuit, for discovery . Discovery is a formal process between your attorney and the at fault partys attorney (defense counsel) with the intention to exchange information regarding your case. The point of this process is to inform defense counsel (whos likely been hired by the at-fault partys insurance company) of every claim you likely included in your Demand Package or intend to present at trial. From defense counsel and through your attorney, you will likely be served with Form Interrogatories (questions), Requests for Production of Documents (requests for documented evidence to substantiate your claims), as well as a Notice of Deposition (your required appearance in front of defense counsel to formally answer questions about your claims under oath).

______________________________________________________________________________ 17

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________ Defense counsel may also require you to appear for a Defense Medical Examination , especially if youre still complaining of medical problems and/or receiving treatment throughout the litigation process. California law allows defense counsel to require you to submit to an examination by a doctor of their choice if, at the time of the exam, you still are experiencing symptoms caused by an accident. All courts are different, but most will require your attorney to present to court withing a few months of filing a lawsuit to formally meet with the Judge assigned to your case to establish your cases course of action and time requirements. An arbitration (sort of a mini-trial without a jury but in front of a court ordered arbitrator) will be scheduled, or perhaps a mediation (a meeting between the parties and a court ordered mediator with the intention to try to settle your case). If the case does not settle at arbitration or mediation, a date will thereafter be set for trial. Trial - The End of the Line Most courts make an effort to get cases to trial within 16 months of the date the lawsuit is filed, but due to backlog, sometimes it takes longer. Sometimes, your attorney may ask the court to delay your trial date because your injuries have not stabilized. At trial, your attorney will present your claim in front of a jury. Youll testify, witnesses to the accident may testify, and your doctor(s) will likely testify about your injuries. The defendant may testify, as well as any opposing experts. After testimony is complete and all the evidence is submitted for the jury to review, its in their hands to provide a verdict (i.e., what they believe to be the value of your case). The jury renders a verdict, it becomes a judgment, and in most cases (finally), your case is done and (fingers crossed) you and your attorney are pleased!

______________________________________________________________________________ 18

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________ Trial is, barring appeal, the last stop. This is a very brief nutshell of the process and for brevity Im left out many, many details. But at least, hopefully, this provides you with some understanding of the process. At my website,, I provide more information and a time line graphic detailing the process that may help as well. See:

______________________________________________________________________________ 19

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________ CANT GET BLOOD FROM A STONE! The importance of Uninsured/Under-insured Motorist Insurance Coverage. You just got in a horrible accident thats put you in the hospital. The medical bills are piling up. You want the person that hit your car (the negligent/at fault party) to pay and pay big, after all, they ran a red light, or they were gabbing on a cell phone not paying attention, or they were intoxicated...whatever the case may be. Few would disagree that such a person should have to pay for everything theyve put you through; costs for medical care to date, costs of future medical care, loss of income, etc etc., but the reality is generally the only monies available is what auto insurance coverage, specifically body injury auto insurance coverage, that other person possesses. California law only requires drivers to minimally possess $15,000.00 per person/$30,000.00 per incident coverage . In other words, if someone crashes into you putting you in a hospital for days at a cost of tens of thousands, maybe even hundreds of thousands of dollars, if the negligent driver only has the minimal $15,000.000/$30,000.00 bodily injury insurance coverage, then you only have $15,000.000 available to you. If the accident involves multiple vehicles and multiple people, and fault is determine to rest solely on one person and that one person only has $15,000.000/$30,000.00 bodily injury insurance coverage, then the most any one individual can obtain is $15,000.00. The most the people in all the cars can collect collectively may be only $30,000.00. For this reason its imperative that you carry your own underinsured/uninsured motorist automobile coverage. BEST TIP I can give you - Carry at least $100,000.00/$300,000.00 in uninsured/under-insured motorist coverage. That way, you know that regardless of how much insurance coverage the at fault driver possesses, you will have $100,000.00 available to you personally through your own insurance. If passengers in your car got hurt as well, each will also have $100,000.00 available up to a maximum of $300,000.00 for everyone combined.

______________________________________________________________________________ 20

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________ I cant tell you how many times Ive talked to very hurt people, facing hundreds of thousands of dollars in outstanding medical bills as well as loss of employment, only to find that only $15,000.00 is available from the negligent driver. In other words, as the saying goes, you cannot get blood from a stone . No matter how horrible the negligent/at fault driver is, unless youre hit by Bill Gates or Donald Trump, most people only have a finite amount of insurance coverage with few personal assets, and most in California carry only minimal coverage...or do not have insurance at all. Studies have shown that one third (1/3) of drivers are uninsured. Do yourself a favor and make sure you carry at least $100,000 per incident/$300,000 per accident in uninsured/under-insured motorist coverage (or as much coverage in excess of that as you or your family can afford). On a rainy day (and hopefully that rainy day never comes for you), the extra few dollars paid in insurance premium will be worth it. What Does the Phrase Comparative Fault mean anyways? You may have heard the phrase Comparative Fault but do not know exactly what it means or how it affects you if you are involved in a car accident. You are not alone. Basically, it means that a percentage of fault is attributed to each party. Sometimes fault is clear and only one party is found at fault. Other times, however, it can be a number of actions by a number of persons involved in the accident that caused the injury or harm. In this scenario, each person at fault is given a percentage of 100% attributed to them. That person then must pay that percentage of the other persons damages. For instance, one party was speeding and one party ran a stop sign, it may be a 40-60 allocation of fault. If 60% was allocated to you, then you would be obligated to pay the other partys damages at 60%. (i.e. if his damages were $10,000.00 then your insurance company would pay $6,000.00). On the other hand, if your damages were $100,000.00 the other party would be obligated to pay you 40% or $40,000.00. Each is proportioned out to their share. ______________________________________________________________________________ 21

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________ PERSONAL INJURY DAMAGES - What youre able to recover. As long as you have auto insurance yourself, California law entitles you to recover various types of damages including: < Pain and Suffering (also known as General Damages ): Ordinarily, the most valuable element of your bodily injury claim is the right to compensation for physical pain and mental anguish you have suffered and will endure in the future because of your injury. These general damages are in addition to and may be far more than the amount of your lost earnings and medical expenses. Its important to keep in mind that theres no specific measurement to determine the value of pain and suffering in any given case. As every case is different and involves numerous variables, the value of pain and suffering also varies. For example, the pain and suffering endured by someone whos lost a limb is, obviously, far greater than somebody whos stubbed a toe. Medical Expenses : The cost of reasonable and necessary medical expenses incurred, and that are reasonably certain to be incurred in the future because of your injury, are recoverable. All forms of care and treatment, whether hospital, medical, therapy, nursing, diagnostic testing, surgery, physical therapy and the like are recoverable. Loss of Earnings: You are also entitled to recover the loss of earnings suffered from your injuries. Thus, wages, commissions, bonuses and all other earnings and fringe benefits are recoverable. This topic is discussed further within a separate section of this book. Future Loss of Earnings : If your injuries permanently limit your ability to earn, you can recover the value of the reduction. A loss of future earning capacity can be calculated by a determination of what income you will lose in the future as a result of your injuries. These damages compensate you for your lost earning power over the remainder of your working years. As




______________________________________________________________________________ 22

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________ with Loss of Earnings, this topic is discussed further within a separate section of this book. < Disfigurement: If your injury causes scarring and/or other unsightly marks, you are entitled to recover for the disfigurement and humiliation or embarrassment associated with the disfigurement, as well as the costs of cosmetic surgery. Damage to the Marital Relationship : Serious injuries to a spouse may cause damage to the marital relationship. If this occurs, you and/or your spouse are entitled to recover for the loss of society, affection, assistance, conjugal fellowship and loss or impairment of sexual relations. These is called Loss of Consortium claims and is discussed further in a separate section with this book. Punitive Damages : In some cases - where the accident was caused by criminal negligence - for example, driving while under the influence of alcohol - you may also be entitled to punitive damages above and beyond all previously explained damages. Death : Damages for wrongful death may be available for the wife, husband, parent and child of the deceased person. Damages include: economic loss, mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, marital care, parental care, filial care, attention, advice, counsel, training, guidance and/or education. Damages may be available for the deceaseds estate as well.




______________________________________________________________________________ 23

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________ LOST INCOME AND LOSS OF EARNING CAPACITY A Closer Look Can I recover for lost wages? Yes. Wage/income loss is all actual past loss of income from the date of accident to the day you return to work. You are entitled to recover all lost wages without deduction for taxes. Although you are entitled to compensation for time missed from work, it is important to keep in mind that your employer will need to verify that you were not able to work. It is very important that your medical provider gives you a "prescription" in the form of a documented work release to take time off work. If you simply take off work without a doctors note, the insurer will often contest whether you were able to work or not. Additionally, if you claim that you are not able to work as a result of injuries, you will have to prove how much money you lost as a direct result of the injury. In other words, besides proof from your doctor that you needed to take that time off (e.g., work release verification), you will need a letter on your employers letterhead, and/or copies of your pay stubs, that will indicate how much time was taken and what your gross pay was for that period of time. Keep in mind, even if you used vacation or sick time you are still entitled to your lost earnings for that period because you would not have used up your vacation and/or sick time but for being injured. Can I recover from income Ill likely lose in the future? Yes. This is known as a loss of earning capacity claim. In many cases, in addition to present income loss, you may suffer earnings loss in the future - or loss of earning capacity. For example, you may be 45 years old and your injuries may be so severe that you cannot return to work. If your normal work life expectancy was 20 more working years, then you should attempt to recover damages for those 20 years lost. ______________________________________________________________________________ 24

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________ Earning capacity is the ability to earn income, as opposed to the actual loss of income itself. To recover damages for loss of earning capacity, you dont have to be employed at the time of the accident, but rather it is the loss of potential earnings based on what you likely would have made had you not been injured. Keep in mind that to recover this damage you must be able to show such a recovery is reasonable based on your potential earning ability. In other words, you cannot recover income lost from an inability to play professional tennis unless you can reasonably show you would have played in professional tennis tournaments but for being injured. Also, you have whats called a duty to mitigate, or minimize, the income lost as a result of being injured. In other words, to use our professional tennis player analogy again, you may not be able to enter tournaments and compete because your left eye is injured, but perhaps you could earn a wage instructing others how to play. By doing so, youre taken steps to reduce the income lost by not being able to enter and play in professional tennis tournaments. Keep in mind you must take reasonable steps to care for injuries so as to prevent further aggravation. If attempting to mitigate damages may ultimately lead to making your injuries worse, naturally you should not be expected to undertake employment beyond the physical limitations established by your doctor. How might vocational experts help determine my loss? Forensic economists are vocation experts that look at such factors as age, physical or mental impairments, employment history, job skills, education, and earnings history, to name a few variables, in order to calculate a future earning capacity loss. The experts then construct a profile of past and present economic facts to formulate the income you will lose in the future, using work-life expectancy tables (if you will never work again), earnings of others with your education and experience levels, inflation, social security and other benefits, plus other statistical data.

______________________________________________________________________________ 25

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________ Can I be compensated for lost income if I am self-employed? Yes. If you are self-employed you are entitled to claim income loss if youve been unable to work as a result of injuries incurred in an accident. Furthermore, a self-employed person may be entitled to costs which are incurred by having to hire additional and/or substitute workers to perform tasks which are necessary to maintain the business which ordinarily are performed by the injured individual. Unlike simply losing income because you had to stop working for a company, losing self-employed income is usually more complicated and often requires a forensic economist (a specialist in determining economic losses) to consult on your case, especially if your claimed losses are substantial. Keep in mind, the damages to which you are entitled, if provable, include not only lost income, but also loss of earning capacity (further discussed later), lost profits, lost business opportunities, and loss of good will. If self-employed, how is lost income calculated? Previous tax records are commonly used to calculate past and present losses. If you are self-employed, in order to prove loss of income as a result of being injured, you may have to show past income tax records, the more years generally the better, to prove what youve earned in the past to indicate what youre likely losing now. If you don't have copies of your previous tax returns, you can request them from the IRS website - Although IRS records are protected by your right to privacy, it may make it much easier to prove your claim if you provide them nonetheless. Unfortunately, a problem with this is that the past years dont always tell the story of the current year, or the future. Its usually also helpful to provide your calendar of appointments, and possibly obtain letters from those with whom you planned doing business in order to strengthen any future lost income claim. While difficult to prove lost opportunities, letters from potential clients and/or partners, can prove very helpful.

______________________________________________________________________________ 26

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________ What if my doctor releases me to return to work, but Im still in too much pain to do so? Compensation for the additional time off after a doctor has released you to return to work largely depends on whether or not you can prove that the additional time off was reasonable and necessary . Reasonable and necessary is the standard. Suppose you suffered a moderate whiplash from a rear end auto accident. After a couple weeks your doctor tells you to return to work when you feel up to it. You still feel stiff and sore. You decide to stay home a few more days, taking over-the-counter medication. After a few days, you return to work feeling better. Was it reasonable to take those additional days? Probably. Was it necessary? Thats a more difficult question, but you, or your attorney, will likely be able to negotiate for that additional loss in pay. What if, however, you took no pain medications and went water skiing while you were recuperating from your neck injury? Is it reasonable now? Probably not. Neither is it necessary. More often than not, determining past and/or future lost wages is simply a question of reasonableness.

______________________________________________________________________________ 27

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________ LOSS OF CONSORTIUM DAMAGES Your spouse may be entitled to damages as well. California law allows husbands and wives to recover damages for "loss of consortium." In the typical action for loss of consortium, the non-injured spouse will sue the defendant for damages resulting from his, or her, inability to enjoy the same love, affection and companionship that he/she did prior to the spouse's injury. This legal claim tends to arise after one spouse is seriously injured or killed by a third party's negligent or intentional acts. Part of loss of consortium damages entails those losses suffered as a result of decreased or limited sexual activity between spouses. However, loss of consortium damages covers much more. Basically, the damages seek to compensate the non-injured spouse for the injury's effects on previously existing spousal functions. As such, a claim for loss of consortium usually compensates the claimant spouse for loss or deprivation of the following: * * * * * * * * Services, e.g., household chores, caring for children; Love; Society; Affection; Companionship; Emotional support and care; Comfort; as well as, Sexual relations.

Even though a claim for loss of consortium may include a decrease or change in sexual activity between spouses, the claim is usually much broader. In other words, consortium is not limited to the couple's sexual relations, they largely include all those aspects listed above. Keep in mind that loss of consortium damages are considered "non-economic" damages. These damages do not involve an exact monetary loss, ______________________________________________________________________________ 28

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________ nor possess an objective cash value. As such, in a trial setting an award for loss of consortium is usually left to the discretion of the judge or jury. Legal experts maintain that these damages will most likely be awarded in cases involving a spouse who has died or who has been the victim of a severe injury. Loss of consortium damages are generally limited to these types of cases, and not cases involving minor physical injuries to the injured spouse, although the law does allow such claims. In California, a valid marriage license at the time of the injury is a prerequisite to any claim for loss of consortium. Further, California jury instructions explicitly define the loss of consortium as "loss of the spouse's love, companionship, comfort, affection, society, solace or moral support; any loss or enjoyment of sexual relations or the ability to have children or any loss of the spouse's physical assistance in the operation and maintenance of the home..." This means, that aside from the actual victim's personal injury case against the party, or parties, liable for his/her injuries, the victim's spouse can also sue the liable party, or parties, for those losses listed in the jury instruction. The spouse's case would be a claim for compensation on the loss of consortium he/she suffered that resulted from the victim's injuries. Juries & Damages for Loss of Consortium It is important to know that juries generally do not like a spouse who was not injured who is trying to collect damages based on minor physical injuries suffered exclusively by their husband/wife. Thus, even though this is an area for potential damages in any injury case where the injured individual is married, many lawyers will not ask for loss of consortium damages on smaller cases for fear of a backlash against the uninjured spouse. However, if it is a situation where there is a very serious injury, then the attorney may ask, and it is appropriate, for loss of consortium damages.

______________________________________________________________________________ 29

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________ MEDICAL BILLS, INSURANCE COVERAGE & RELATED ISSUES Can I recover for my medical expenses ? Yes. All medical bills that are reasonable and necessary and related to your car accident are recoverable. These medical bills include, but are not limited to the following types of expenses: emergency hospital visits, hospitalization, medical doctors for treatment and prescriptions; regular treatment from a chiropractor, physical therapist or doctor of osteopathic medicine; surgeries; medication, medical appliances, such as a wheelchair, walker, brace, etc., and transportation expenses for your medical appointments. Theoretically speaking, in California the person at fault for the collision is responsible for paying all of your reasonable and necessary medical expenses. But as a practical matter in the absence of substantial assets, the total monies available is usually what amount of insurance coverage the at fault party possesses. The minimum bodily injury insurance coverage required by law in California is $15,000.00 per person/$30,000.00 per incident. What is Med-Pay Coverage and why its good to have. Generally speaking, the insurance carrier for the at-fault driver will not pay for your medical expenses until you have completed all your medical care and treatment and agree to settle the entire case, forever. Unfortunately, the doctors who provide you treatment will generally not wait for you to resolve your claim before being paid. In this instance, its advantageous to have your own med pay coverage, through your auto insurer, pay for your bills so you arent forced to rush your personal injury claim and settle prematurely. Med Pay coverage is a type of auto insurance coverage that will pay for your medical expenses as theyre incurred, up to a certain amount, and generally within a specific time frame. This coverage is available to the insured driver and any passengers in the insureds vehicle for injuries sustained, regardless of the fault of the insured driver or anyone else. ______________________________________________________________________________ 30

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________ You may already have medical insurance and feel med pay is an unnecessary additional premium. Keep in mind med pay will give you the flexibility to obtain treatment with a doctor, or doctors, outside of your health plan. Sometimes this flexibility can come in handy if you want to consult with a reputable doctor that doesnt accept payment from your private health plan. Typically, med pay policies are $5,000.00 in coverage. They may range from $1,000.00 to as high as $100,000.00. We recommend a minimum of $5,000.00 in medical payments coverage. How long can I receive med pay benefits? Its important to note that medical payments coverage is provided for a limited period of time, typically one to three years from the date of injury. Insurance companies impose time limits on medical payments for a couple of reasons: (1) the insurer wants to know what the total payments will be in a reasonable amount of time, and (2) after a number of years, it may become difficult to determine whether the treatment requested is for the covered injury or for a later-occurring injury that is not covered. Lastly, keep in mind that med pay is additional coverage that must specifically be purchased by you. It is not required by law, and you do not automatically have med pay coverage simply by virtue of your having a liability policy. If I dont have health insurance or med pay insurance, how do I pay for my medical treatment prior to settling my claim? If you do not have med pay and you are not covered under any health insurance policy, other options are available to cover medical expenses prior to receiving a settlement. ' Self Pay. Self pay means you pay for the medical care out of pocket. This option is usually not realistic for most individuals, given the high cost of medical care. Doctors Liens . Some doctors will treat a patient and allow the deferral of payment of the medical care until such time as you


______________________________________________________________________________ 31

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________ recover money from the liable driver. This is called rendering treatment on a lien. Under this circumstance, the doctor will require you and your attorney to sign a statement granting the doctor a lien on all proceeds received in settlement or by verdict from the liable drivers insurance company. A lien is a legal agreement in which you agree with the doctor or hospital that they will wait for payment rather than pursuing collections against you. In return, you promise that when you receive a settlement, you will pay them first and up front before you pocket a penney yourself and you promise to repay the doctor even in the event there is no recovery on your claim. This is a somewhat technical process and often requires an attorneys cooperation with a doctors office, but it is something that could be explored with the billing department at your doctor's office or the hospital. Uninsured/Under-insured Motorist Protection is VITAL! Make sure you have it. Uninsured/Under-insured Motorist Protection (UM) These type benefits provide coverage to protect you and/or those who are passengers in your vehicle. Among other things, these benefits provide for payment of damages incurred as a result of an at-fault driver who has no liability insurance, a phantom driver, a hit-and-run driver, or a driver who fails to carry enough insurance to pay for your expenses. The two types of coverage are as follows: Uninsured Motorist Coverage. This type insurance is optional and offered by your automobile insurance carrier. If you are involved in a hit and run accident or an accident with someone who does not have insurance, then damages can be paid under your own uninsured motorist coverage. How much can I get? You determine the amount of coverage you want. That is, California does not require drivers to purchase this coverage, and the amount of insurance available for such claims is determined by you in any pre-existing contract of insurance between you and your insurance company. So, ______________________________________________________________________________ 32

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________ for example, if you opted to purchase uninsured benefits in the amount $15,000, and you sustain an injury caused by an uninsured driver, you can collect only up to $15,000 from your own insurance company to pay for damages. That is, whether your medical bills are $15,000 or $1,000,000, you will only be entitled to collect $15,000 from your insurance company under your uninsured policy. We recommend you minimally carry $100,000 per individual/$300,000 per incident in coverage. In many cases, if you can afford it, you should obtain even higher coverage. How long can I get uninsured benefits? There are no limits as to the length of time your coverage is available under your uninsured policy benefits, but you must file suit or demand arbitration proceedings with you own carrier no later than two years after the date of the accident or you can and likely will be forever barred from pursuing the claim. However, you will be covered only up to the amount of the uninsured policy benefits. So, for example, if you sustain a life threatening injury requiring emergency care and critical care hospitalization, and you have uninsured policy benefits in the maximum amount $100,000, you could conceivably exhaust your uninsured benefits within a very short time. Alternatively, if you sustain an injury requiring a lengthy rehabilitative program and course of treatment, you could conceivably receive benefits for an indefinite period of time, but only up to the $100,000 policy maximum, and assuming you demanded arbitration within the two (2) year period described above. How do I file my claims under uninsured benefits? The claim must be submitted to your own insurance company, see Insurance Code Section 11580, et cetera. Just as in claims against at-fault parties, there are time limits in which you must file suit if making a formal claim. Under-insured Motorist Coverage. This coverage goes hand-in-hand with your uninsured motorist coverage. In the event that the responsible party does not have adequate insurance coverage to compensate you for your injuries, you may be entitled to additional coverage on your own policy. For example, if the person responsible has liability limits of only $25,000, the most you can claim from their insurance carrier is $25,000.00 per person. If you sustained serious injuries and incurred significant medical expenses, the value of your case could ______________________________________________________________________________ 33

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________ well exceed $25,000.00. If you have $100,000/$300,000 uninsured coverage, after you collect $25,000.00 from the at-fault party, you will be able to pursue an additional $75,000.00 from you own under-insured motorist insurance. How do I file my claims for uninsured/uninsured benefits? The claim must be submitted to your own insurance company within two years and in compliance with Insurance Code Section 11580. NOTE: You cannot purchase uninsured/under-insured coverage in an amount greater than the amount of your liability coverage. That is, your liability coverage is the principal basis for uninsured/ underinsured insurance. So, if you maintain a state-mandated minimum liability policy of $15,000, you cannot obtain more than $15,000 in coverage for uninsured/under-insured coverage. Other Sources Other sources exist to pay for your medical expenses, prior to settlement a personal injury claim. You may be eligible under certain state and federal programs. The major sources are explored below: ' Medi-Cal. If you are eligible to receive Medicaid benefits, MediCal will pay for your treatment pursuant to its guidelines.

Important to note : If you are successful in obtaining a settlement or verdict from the negligent party, you may have to pay Medi-Cal back minus some credit for attorneys fees and costs. It is vital that your attorney is aware and understands the law and case decisions that regulate exactly what amount you are required to pay back to Medi-Cal. If your attorney isnt up on the latest developments, it can cost you!

______________________________________________________________________________ 34

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________ ' Medi-Care. If you are a Medicare recipient, Medicare will pay for your medical expenses according to the Medicare rules and regulations.

Important to note : If you are successful in obtaining a settlement or verdict from the negligent person, you will have to pay Medi-Care back minus credit for attorneys fees and costs. Again, just like with Medi-Cal, it is vital that your attorney is aware and understands the law and case decisions that regulate exactly what amount you are required to pay back to Medi-Care. If your attorney isnt up on the latest developments, it can cost you! ' ERISA Regulated Medical Insurance Coverage. If your medical insurance is regulated by ERISA (Employee Retirement Income Security Act), and a great many employers health insurance plans are, your insurer may demand that you reimburse them for your medical expenses according to contractual and/or ERISA rules and regulations. Many HMO's and PPO's (e.g., Kaiser Permanente, Blue Shield, Western Health Advantage, Aetna, and Health Net to name but a few), are regulated by ERISA.

VERY IMPORTANT : Like Medi-Care and Medi-Cal, your attorney must be aware and understand the law and case decisions that regulate exactly what amount you are required to pay back your insurer pursuant to ERISA and contractual guidelines. A competent attorney will help to reduce, and maybe eliminate, your reimbursement obligations. A competent attorney can pay for himself by what he can save you in health insurance reimbursement requirements alone. It is vital your attorney is informed and on the cutting edge of this topic because laws, regulations, and court decisions alter insureds reimbursement requirements frequently. Yesterdays rules on these issues may no longer be accurate. If your attorney isnt up on the latest developments, it can cost you...plenty !

______________________________________________________________________________ 35

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________ ' Worker's Compensation Plans. If you were involved in an accident while you were on the job, your employers workers compensation plan will extend benefits for your medical bills and loss of earnings. It is very important to speak with an attorney as soon as possible in these situations, as the coordination of your rights between your worker's compensation case and your personal injury case is essential. Workers Compensation Plans also have a right to reimbursement which may greatly affect the amount of money available to you.

Out of Pocket Expenses. Keep receipts from any prescriptions or medications that you have had to purchase and any other out-of-pocket expenses. Also keep track of mileage to medical providers, particularly if you are required to travel significant distances to get treatment for your injuries. Some of these expenses may be reimbursable at the time of settlement with the insurance company. In-Home Nursing Care/Attendant Care In-home nursing care/attendant care costs are recoverable costs. Like other medical expenses, you must prove that such care is reasonable, necessary, and resulting from injuries sustained in the auto accident. Household Chores/Replacement Services Replacement services are services the injured person once performed around the house that he or she can no longer perform because of injuries sustained such as cooking, vacuuming, dusting, cleaning, laundry, cutting the grass, and so on and so forth. The expense of paying someone else to do these services for you, because you no longer can physically perform them yourself, may be recoverable.

______________________________________________________________________________ 36

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________ Home Modifications and Accommodations In some cases, construction or reconstruction of ones living quarters may be necessary as a result of injuries incurred. For example, if you are paralyzed as a result of an accident and confined to a wheelchair, steps or stairs may have to be eliminated or the doors widened. Special bathroom facilities may also need to be constructed, as well as special kitchen facilities, or a special bed. These expenditures may be recoverable.

______________________________________________________________________________ 37

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________ COMMON PERSONAL INJURY QUESTIONS I've been injured, what should I do first? See a doctor! I know this seems obvious, but youd be surprised how many people call me from home, writhing in pain, wondering what to do. If you feel that you've suffered an injury, your first and foremost concern should be your health. Whether you ever pursue a claim or not against someone you believe caused the injury is of much less importance than seeking the medical care which may be necessary to protect you against further, long-term health problems. Get the medical care you need and get it promptly! Ok, now beyond the obvious answer, the next best thing to do is to let all involved insurance companies know youve been in an accident so they can open their files and report the incident to the DMV if necessary. Youll be assigned a property damage or collision coverage adjuster wholl help you through that process if youve making such a claim. Keep in mind that giving a recorded statement to an insurer may not be advisable until you have discussed the claim with a personal injury attorney. If youre wondering which insurance company is best to help you fix your car, refer to the Auto Damage Claims section in this book. How do I know if I have a claim worth pursuing? Generally speaking, when a person is injured as a result of the negligence of another person or persons, the injured party may pursue a claim against the people/corporations/government entities that caused his/her injuries. In addition to the injured person, his/her spouse may also have a valid loss of consortium claim against the negligent party, and all of the injured person's legal heirs may have valid claims in the case of a wrongful death. To have a valid claim, the person(s) making a claim for compensation will need to show acceptable proof of their injuries and losses (also known as ______________________________________________________________________________ 38

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________ damages) as well as proof of the negligent party's responsibility. The laws and rules that govern personal injury cases in California are many and varied, and may generally be found in the California Codes, Rules of Court, and California case law (court decisions interpreting established law). The simplest way to find out if the facts of your situation constitute a valid claim is to consult with an experienced personal injury attorney. Don't be discouraged if the first attorney you talk with declines to represent you in your claim -- since every attorney will have different levels of experience and areas of expertise, one attorney may see a claim worth pursuing while another may not. What kind of factors may affect the value of a claim? Determining the value of a personal injury claim is part science, part art, and a large part persuasive and organizational skills. All three areas must be fully developed in order to maximize the settlement value of a claim. The primary factor in determining the value of a claim is the specific nature of the injuries and economic losses sustained (also known as damages). This is the science part of the equation, and it involves: * A thorough examination of the injured person's medical records and medical history. Medical research about the injuries that have been diagnosed, the treatments that have been used, and their probable outcomes. Where necessary, interviews with the treating physicians and/or requests for formal medical reports from the physicians. These services can cost a significant amount of money and should only be used where needed, however a personal injury attorney will usually advance to his/her client the costs for these reports, which can substantially increase the value of the claim and the likelihood of its settlement. Next comes the art portion in presenting a claim. To do so one must: ______________________________________________________________________________ 39

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________

* Maximize the value of facts which increase the value of the claim; and * Minimize the impact of facts which deter from the value of the claim. This aspect is difficult to describe except to say that any given claimants situation is different, just as no two fingerprints are alike. Representation that excels at this aspect separates average attorneys from the cream of the crop. Finally, all this information must be put forward in a persuasive argument to an insurance claims adjustor, to an insurance defense attorney, to an arbitrator, or perhaps even to a jury at trial. The personal injury attorney who has handled a great many claims will have developed professional working relationships with many insurance adjustors and defense attorneys, and this can often smooth the road to settlement of a client's claim. Do I have a time limit in which to bring a claim? I always recommend contacting all insurance companies involved of the occurrence of an accident as soon as conveniently possible. This will allow insurance companies to open their file and prepare for negotiating your claim(s). But there are vitally important drop dead time lines in California to observe or you will be restricted from presenting a personal injury claim at all. You typically must file a lawsuit within two years of the date of the accident in California in order to preserve your right to recover damages from a personal injury claim - this is known as a Statute of Limitations. If the injured person is a child or a person with a profound mental disability, this period can often be extended beyond the two years. If you intend on making a claim against a government entity, the law requires that you file a claim within six (6) months of the injury causing incident. Several times throughout my career severely injured people have been barred from pursuing a claim against a negligent government entity because they failed to file the necessary paperwork withing the six month period. Its heartbreaking.

______________________________________________________________________________ 40

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________ With government entities, you must also file a lawsuit within certain time periods after the claim is rejected (typically within 182 days of such rejection). In order to protect your rights, if you have any question of what your Statute of Limitations may be, I highly recommend that you contact an attorney immediately to find out the time limitations involved. Please know: These are general statements of limitations. There are many exceptions and you should consult an attorney concerning your particular claim and the applicable statute of limitations and any available exceptions. What if the at fault party did not have auto insurance at the time of the accident? Unless the at fault party possesses significant personal assets, you unfortunately may not be able to recover any damages at all. This is why possessing your own under-insured/uninsured motorist coverage is vital. You may still recover compensation for your personal injuries if you were occupying a car that had uninsured motorists coverage or if you were covered by your own insurance policy or a family members insurance policy (that you reside with) had uninsured motorist coverage at the time of the accident. Many policies include language that covers family members that reside with policy holders. If in any doubt, ask the insurer for a copy of the policy and check the language. Remember, though, that there is only two (2) years on a uninsured motorist claim to demand arbitration or file suit against the uninsured motorist driver. What if the at fault party has very little, or minimum, insurance coverage? The bad news I often have to give clients is theres only a minimal, or less than needed, insurance policy available from the at fault party. No matter how horrible the injuries or how big the medical bills, if the at fault party only has $15,000.00 in bodily injury insurance coverage, then theres only $15,000.00 available from the at fault partys carrier and it is unlikely that substantial assets will exist. ______________________________________________________________________________ 41

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________ Do yourself a favor: carry at least $100,000 in under-insured/uninsured motorist coverage through your own auto insurer. That way you know, no matter what, you have at least $100,000 available to you. If you were a passenger in a vehicle involved in a collision, check with the driver of the car. You may be covered under his/her insurance coverage. Lastly, and again, you may also have insurance coverage at your disposal through a relative you reside with. Many policies are written to allow residing relatives protection. What is a wrongful death claim? Damages for wrongful death may be available for the wife, husband, parent, and child of the deceased person. Damages are available for the deceaseds estate as well. The claim can be made against the driver and/or owner of the car that caused the accident. If the other driver and/or owner of the car did not have insurance, an Uninsured Motorist Claim can be filed if this coverage exists. Family members of the decedent can sue for the loss of companionship, loss of services, loss of income, and other losses. Typically, the settlement is shared by members of the family and the amount of each share is either agreed upon by the family members or decided by the judge. Do I have to go to court to receive a settlement for my injuries? No. Although every case is different, most cases are settled with the insurance company before going to court. Often, claims are settled with the insurance company even before a lawsuit is filed. Do I need to pay back my health insurance after my case is settled? In many instances, yes. Whether you are insured by a plan through your employer, or you receive Medi-Care or Medi-Cal benefits, if you are successful in obtaining a settlement or ______________________________________________________________________________ 42

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________ verdict from the negligent party, you may have to pay back Medi-Care, Medi-Cal, workmens compensation, or your private insurer, generally minus some credit for attorneys fees and costs. Your attorney must be aware and understand the law and case decisions that regulate exactly what amount you are required to pay back your health insurer pursuant to the law and contractual guidelines. A competent attorney will help to reduce, and maybe eliminate, your reimbursement obligations. A competent attorney can pay for himself by what he can save you in health insurance reimbursement requirements alone. It is vital your attorney is informed and on the cutting edge of this topic because laws, regulations, and court decisions alter insureds reimbursement requirements frequently. Yesterdays rules on these issues may no longer be accurate. If your attorney isnt up on the latest developments, it can cost you...plenty !

______________________________________________________________________________ 43

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________ AUTO DAMAGE CLAIMS Who pays to get my car fixed? This depends on whether there is coverage for the other driver involved, whether you have collision coverage on your policy, and whether or not the vehicle is a total loss, among other factors. Simply, we have found that it is often better to negotiate the repairs or total loss of your vehicle with your own insurance carrier under the collision/ comprehensive coverage, assuming you have it. We have also found that it is often much faster to go forward with your own carrier because your carrier wont care whos at fault for the collision. The focus will be on repairing the car, not first determining who caused the collision. You can go through the at fault partys insurance to get your car repaired, and this may be your only choice if you do not have your own insurance, but keep in mind the other partys insurance will likely want to conduct an investigation and take statements from the parties and witnesses involved to determine fault before agreeing to fix your car. This process will delay getting your car fixed for several days, maybe even weeks. Why you should pay the deductible to have your insurance fix your car, even if the accident wasnt your fault. In my opinion its a lot less hassle than dealing with the other partys insurer, and eventually (usually within a few weeks) youll get your deductible refunded after your insurance company demands that it be repaid (assuming the other driver is found to be at fault). Your insurance company wont care whos at fault for the accident and will work to get your car fixed right away, whereas another insurance company will want to conduct an investigation before agreeing to repair your vehicle. Such an investigation could delay getting your car repaired by days, maybe even weeks.

______________________________________________________________________________ 44

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________ Can I get my car repaired at any body shop? Yes. In fact we have a list of quality/reputable shops that can be trusted. Just ask us! My cars totaled...what will I be paid? The value is determined by your vehicles fair market value (or actual cash value) and not what you purchased the vehicle for, nor what you owe on a loan. What this means is that the car is worth what an identical car could be sold for in todays market. Blue Book does not give you complete information. We recommend using to do a search for similar cars in a 500 mile radius. This will give you asking prices for similar cars. You can also contact dealerships and ask them what theyd list the car for with the same options and the same mileage, etc. Bottom line: if the insurance companys offer is similar to what our own comparables research tells you, then wed recommend that you accept the offer. If not, we can try to negotiate the value upwards for clients by showing the comparables to the carrier and attempting to find some middle ground. If the car is a total loss does the insurance company pay the whole value? Yes. Although if theres a lien on the vehicle (e.g., an auto loan), the insurance carrier will pay off the car loan first and then the remainder goes to the registered owner. Keep in mind that sometimes an auto loan balance is more than the fair market value of a car. We often see this with clients who get into an accident with a brand new car thats being financed for the entire purchase price. Particularly with luxury vehicles, the fair market value diminishes immediately after driving off the sales lot!

______________________________________________________________________________ 45

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________ The carrier, in those circumstances, sometimes doesnt pay off the whole loan, (because the market value of the vehicle is less than the balance of the loan), and the vehicle owner can end up still owing on a loan for a car they can no longer drive! If potentially at risk for such a situation, you may consider gap insurance in order to cover this difference. Talk to your insurance representative about this, particularly if youre thinking of purchasing a brand new vehicle with little or no money down. Help! I need a rental car! You are entitled to reimbursement from the responsible partys insurer for a reasonable period of time and similar type of rental vehicle. In other words, the party who caused the accident and who caused you to lose the ability to drive your own vehicle is legally responsible to (1) provide a rental car during the period of time it takes to reasonably resolve the total loss of the vehicle; or (2) pay the reasonable rental value (known as loss of use) for each day that your car is not fixed, as long as that period of time is reasonable. If you decide to drive another vehicle while your car is getting repaired, perhaps you own a second car or borrow from a friend, you are still entitled to reimbursement for the loss of use of your vehicle during that period of time. We have been successful in getting clients hundreds (and in some instances thousands) of extra dollars in situations where it takes an exorbitant amount of time to resolve the property damage claims involving a non-drivable vehicle. There are a couple of pitfalls to renting a car, however. First, whenever possible it is much better to use your own rental car coverage (if you have it) and have your own carrier set up a direct billing with the rental car company. This way, it is often not necessary to fork over any money at all.

______________________________________________________________________________ 46

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________ We encourage our clients to rent a car (1) through their own insurer, assuming coverage exists by way of a direct billing to the rental car agency; or (2) consider not renting a car altogether and claiming loss of use. What if the other drivers insurance company and I disagree on property damage issues? It is important to remember that your claim is against the other driver, not his insurance company. If the drivers carrier is being unreasonable, taking too long, treating you unfairly, refusing to perform an inspection, refusing to give a rental car, refusing to reimburse tow billings, storage charges, and the like, then your remedy is to file suit against the responsible party (not his insurance company ) to obtain reimbursement. Sometimes, the insurance company for the other driver will think twice about treating you unfairly if you advise them that you intend to pursue their insured in a small claims court (assuming youre seeking damages of $7,500.00 or less). Before filing in small claims court however, its important to consult with an experienced attorney as this suit may influence, or even preclude, your recovery for your bodily injuries. Loss of Use - Youre entitled to it! If the at fault partys insurance company refuses to help pay for a rental vehicle while your vehicles being repaired, youre entitled to loss of use damages, or in other words, the reasonable cost of providing a replace vehicle in the interim. The loss of use period runs from the date of the accident up to the date the vehicle owner receives their settlement check for the damaged vehicle (and

______________________________________________________________________________ 47

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________ perhaps for a few days after that so that person can look for and purchase another car with the replacement funds), or until the car is fixed and returned. The carriers might attempt to say the loss of use period only runs from the date of loss to the date they made their first offer for a totaled vehicle. In our opinion, they are wrong as the vehicle owner cant replace the car with another car until hes had the opportunity to shop for another car with the replacement funds. Can I keep my car, even if its totaled? Yes, you can retain salvage and keep the car. What this means is that you will (1) have to accept a lesser settlement offer based on the salvage value of the car i.e., the owner is keeping the car and the carrier could have receive $500.00 or so for the salvage, so the carrier deducts the $500.00 or so from the actual cash value settlement; and (2) the carrier and/or you have an obligation to notify DMV that the cars been salvaged which means that the pink slip on the car will say salvaged title (i.e., the cars not worth a whole lot even if it is later fixed). The accident was my fault. If the accident is your fault, either in whole or in part, then it may be a situation where you would be looking to your own insurance carrier to defend claims made against you. If you have Property Damage Liability Protection then your carrier would owe you a defense against claims made against you for damages to others cars. If you have Comprehensive or Collision coverage then you would look to your own carrier to replace or repair your vehicle under that coverage. If you have neither of these coverages, you may be in a situation where you would have to either repair or replace the vehicles involved, or defend yourself in an action that may be filed against you for reimbursement in that regard. It is important,

______________________________________________________________________________ 48

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________ therefore, that persons purchase Liability coverage and the legal minimum in California is $10,000.00 in property damage coverage. We would recommend that you purchase much more than $10,000 in property damage liability protection. Even a relatively minor accident involving an expensive vehicle could easily wipe out that coverage and multiple vehicle impacts occur every day where one car is blamed for damage to several other vehicles. In these circumstances, if you only have the minimal coverage your insurance carrier may not have enough money to go around and you may have to contribute funds out of your own pockets in order to fix or replace all of the vehicles involved.

______________________________________________________________________________ 49

THE ULTIMATE CALIFORNIA AUTO ACCIDENT HANDBOOK ______________________________________________________________________________ Free Newsletter from Our Law Firm Our law firm publishes a legal newsletter on important legal matters that may affect you and your family. The newsletter is very interesting and contains topics that are written specifically for our clients and give others the opportunity to get acquainted with our staff. We publish the newsletter four times a year and will gladly send it to you for free and without any obligation whatsoever. To subscribe, simply tear out this page and complete the form. You can mail or fax it to us. Fax it to 916-9215276 or mail it to Law Offices of Edward A. Smith, 1900 Point West Way, Suite 200, Sacramento, CA 95815 . We also send out important legal news updates through e-mail several times a year. If you would like to receive these, please send us an e-mail at and we will include you in all future legal updates. We do not share our mailing list or e-mail lists with anyone else. If you change your mind after you subscribe and no longer wish to receive it, just let us know and we will stop sending them to you. Please give me a subscription to your firm newsletter. Name: __________________________________________________________ Address: ________________________________________________________ City _______________________ State: ________________ Zip: ___________ E-mail Address: ____________________________________

______________________________________________________________________________ 50