Passenger Claims

How does a passenger in a car crash recover damages when the driver of the vehicle is found “at fault”?

Passenger claims carry a certain stigma because they are often cast as “suing” a person with a close relationship to the passenger, such as a husband or friend.  This characterization is beneficial to insurers who would otherwise have to pay money out under the insurance policy.  Mind you, this is a policy for which the driver is paying premiums month after month to protect themselves and their loved ones.  This characterization is especially problematic in the unfortunate instance of a wrongful death case when the passenger’s injuries are fatal.

The basis of this misconception is rooted in the fact that a jury is never told whether a person has insurance.  Therefore, if the case does not settle outside of court and proceeds to a lawsuit, the Defendant listed is the name of the driver or vehicle owner.  Insurers are quick to remind injured parties of this fact.  In the vast majority of cases, the reality is that you are “suing” the driver to seek fair compensation under an insurance policy and not against the individual’s personal assets.

Under New Hampshire law, passengers have the right to recover for, among other things, medical expenses, lost wages, physical pain and emotional distress.   A strong advocate will go a long way toward avoiding common misconceptions and recovering fair compensation for an injured passenger.

By: Brenner G. Webb

To receive expert legal guidance on matters like this, contact the law office of Winer & Bennett, LLP at 603-882-5157. Visit www.winerbennett.com for more information.

Invisible Insurance

When you bring suit to recover for injuries caused by someone else, you sue the responsible party. You may not name the responsible party’s insurance company in the suit.  In fact, if reference is made in the presence of the jury to the fact that there was insurance, a mistrial would be declared.

The judicial system routinely praises the wisdom and sanctity of the jury. Yet somewhere along the way, it has convinced itself that a jury will award money irresponsibly if it finds out that there is insurance coverage. What the system does in response is bend over backwards to give the jury the false impression that a verdict for an injured party must be paid out of the pocket of the responsible party. That is virtually always untrue in personal injury cases.

To promote that falsehood is to mislead the jury. Luckily, I don’t believe that our jurors are fooled. They aren’t naïve. They assume that there’s insurance. And the record is clear that that doesn’t cause our juries to act irresponsibly.

By:  Peter G. Webb

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What is my Personal Injury Case Worth?

A personal injury lawyer is often asked early on what the value of a case is. I sometimes respond by asking the client what a car in our parking lot is worth.  A client naturally asks how old the car is, what shape the body is in, what the make and model are, what the mileage is, whether there are any mechanical problems, etc.  People are familiar with the buying and selling of cars and they instinctively know that you have to have the specs first.

The value of a personal injury claim is also determined by the specific facts of the case. Those facts have to be known before a valid value can be assigned to the claim.  Not all cases involving a leg fracture, for example, have the same value.

The value of a case will be influenced by, among other things:

  1. The severity of the injury;
  2. The total amount of the medical expense;
  3. The extent to which the injury impacts normal activities;
  4. The amount of any past and future wages lost as a result of the injury;
  5. The magnitude and duration of the pain the injury causes;
  6. The emotional consequences of the physical injury;
  7. The future impact of the injury.

An experienced lawyer will tell you at the outset that an accurate valuing of your claim can’t be made until there is a complete understanding of the full reality of the injury. That full reality is what a jury will be asked to value when it decides what in a particular case constitutes “full, fair and adequate compensation.”

By:  Peter G. Webb

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Teach a Man to Fish

Sometimes, an injured worker’s most valuable workers’ compensation benefit is vocational rehabilitation.

If an injury permanently prevents a worker from doing the work that he or she has always done, and the worker’s residual earning capacity in the jobs he or she can now do is less than the pre-injury wages, services are to be provided to help get the worker back to pre-injury earnings.

Like everything in life, there can be a difference between the theory and the reality. But the injured worker has a lifetime ahead of him or her. An honest effort to help the worker return to the pre-injury earnings is not just what should happen, it is what the law says is supposed to happen.

This is accomplished by the worker’s compensation insurance company hiring a vocational rehabilitation consultant. That is someone with training, experience and credentials in returning people to employment.  It is the consultant’s job to work with the worker and to develop a plan to get the injured worker back to pre-injury wages.

If you are unlucky, you will get a vocational consultant who will go through the motions half-heartedly, or worse. If you are lucky, your vocational consultant will have the integrity to devise a real world plan to get you back on your financial feet.  In some cases that will mean training or education sufficient to provide the tools required to be eligible for employment in a new field.

If some additional education is reasonably required in order to bridge the gap between an injured worker’s pre-injury and post-injury earning capacity, my position is that the worker’s compensation insurance company has to provide that education.

 

By:  Peter G. Webb

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DIY’ers

Do it yourselfers. Ya gotta love’em. Self reliance is, after all, a fundamental American trait. Nevertheless, I have to shake my head when a proud but naïve soul brings in a mismanaged vestige of a once promising case, and wonders if we might offer a little advice. Usually, it’s like trying to revive a chronically under-watered and over-exposed house plant. The poor thing is just too far gone. A good outcome takes more than trusting that truth will prevail.

If you get experienced counsel in early on, your case will be developed and managed step by step by someone who knows how it is done, what’s important, and what not to do. You would probably hire your lawyer for a personal injury claim on a contingent fee basis, so the attorney’s fees will be percentage of the recovery ultimately achieved, whatever and whenever that might prove to be. Since it will cost you the same either way, you’d be well advised to get the lawyer in sooner rather than later.

Most of us would not try to repair our car’s transmission ourselves. It’s also not a good idea to try to handle your personal injury claim yourself.

By: Peter G. Webb

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Wrongful Death Cases

New Hampshire law, RSA 556:12 [http://www.gencourt.state.nh.us/rsa/html/LVI/556/556-12.htm] entitles the estate of someone whose death was wrongfully caused by another to receive monetary compensation from the responsible party. If there is no family, the estate’s recovery is limited to a maximum of $50,000.00. If the deceased left family, there is no maximum recovery for the estate. The compensation to which an estate is entitled is the sum of the value of:

  1. The mental and physical pain suffered by the deceased because of the injury.
  2. The financial expenses caused to the estate by the injury (medical bills and funeral expenses).
  3. The net lifetime earnings lost by the estate (earning capacity minus necessary living expenses).
  4. The years of life of which the deceased was probably deprived.

This law also provides that the surviving spouse and any minor children of the deceased their own right to recover for the loss of their loved one by the wrongful act of another. However, the statute limits a spouse’s recovery to a maximum of $150,000.00 and each minor child’s recovery to $50,000.00.

The estate and the surviving spouse have three years within which to settle or bring suit against the responsible party. Thereafter, the right to such a claim is lost. A minor child’s right to make such a claim would continue until the child’s 20th birthday.

By:  Peter G. Webb

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Why I Practice Personal Injury Law

A frequent question that I get from family, friends and acquaintances is “why did you choose to practice personal injury law?” The answer is simple. My passion is to help people get back on their feet when they need it most.

Month after month, many of us spend our hard-earned dollars feeding the machine that is called “insurance.” Don’t be mistaken, being properly insured is extraordinarily important. However, it is not unusual that we don’t understand just what our “insurance” covers. Perhaps even more critically, we don’t understand what steps we have to take to ensure that our insurance carrier pays what they owe for our claim.

In this day and age where insurance companies embody a high-powered industry, it requires a great deal of knowledge and experience to get the most out of your coverage. It’s not that the insurance company is trying to avoid paying you entirely, it is that their sole function is to minimize the amount of money that they pay for your claim. What is even scarier is that they are very good at it.

My experience working for the largest insurance company in America has helped shape the way I approach a client’s case. I know how to deal effectively with claim representatives. I understand insurance coverage. I understand the internal happenings that guide the insurers’ decision-making process. Best of all, I get to leverage that experience to the benefit of my clients who are frequently physically and emotionally exhausted and should be focused on recovering from their injuries.

So the answer to the question is this: I enjoy seeking the best possible outcome for people in need by taking on insurance companies and ensuring that they pay my clients what is owed.

By:  Brenner G. Webb

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Cheapest Health Insurance Around?

When you buy liability insurance for your car in New Hampshire, your coverage will include “medical payments” insurance.  That coverage acts as a mini-health insurance policy.  It pays uncovered medical bills, regardless of who was at fault, for medical care required as a result of a crash in the insured car, a crash in someone else’s car, and for a pedestrian struck by a car.  It covers the insured driver, all passengers in the insured car, and any relative who lives in the insured’s household.

The cost of $1,000.00 of medical payments coverage in a policy I recently reviewed was $12.00.  If you can afford it, you should buy higher coverage.  Some of our clients have medical payments coverage of $5,000.00 or $25,000.00. Check with your insurance agent for price and availability, and consider the nature of any health insurance you already have. Then decide how much medical payments coverage you should buy.  It may prove to be the best investment you ever made.

By the way, if your health insurance pays a medical bill from such an incident, you will have to reimburse them out of any recovery you receive. You do not reimburse your car insurance for medical bills they pay under your medical payments coverage.

By:  Peter G. Webb

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Vehicle Damage

Someone crashed into your car. You need to have a working car. What are you going to do?

The first call should be to your car insurance.  You are their customer.  You should find the most cooperative reception there. The other guy may be at fault, but that insurance company may take a while to decide that. The best way to go is through your own collision coverage. If the other guy’s insurance accepts responsibility, they will repay your insurance company for the repair cost. If the repair cost is more than the value of the car, you will instead get paid the value of the car.  Yes, you have a deductible, which means that your insurance will pay you what you are due minus your deductible, but the other insurance company will pay you the deductible if and when they decide their driver was at fault. The important thing is to get you a working car as soon as possible.

Rental car?  Hopefully you had rental insurance. Again, working with your insurance company should be easier. Otherwise, if the other insurance company agrees that their driver was at fault, they will pay for the cost of a rental while your car is repaired, or for a few days after they pay you the total loss amount. However, how long a rental is provided is often a source of dispute.  The insurance companies are very strict about not paying for more days of rental than they consider necessary. By that they mean, not according to your convenience, but as soon as the promptly started repair is completed, or a day or three after they give you a check for the total loss.

In any event, as an aside, please be aware that a disabled vehicle parked at a towing facility is commonly sitting there at a rate of $30.00 a day or more. You can assume that the insurance company, whichever insurance company, will resist paying that bill except for a short time before repairs. To make matters worse, the towing company can hold your car until its bill is paid.

By:  Peter G. Webb  

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Subrogation

Subrogation is an unfamiliar word, but it is a concept which it is important to be aware of in a personal injury claim.  Simply put, it means that you have to reimburse your health insurance and Medicare for medical bills they pay, if you receive any money from a party legally responsible for your injury.  You might wonder why in the world you would have to repay for the benefits you paid for in the first place.  While it seems illogical, you have to do so because your health insurance policy has a provision that obligates you to do so. In the case of Medicare, it’s the law.

Although subrogation reduces compensation to the injured party, the rationale is presumably that it reduces the cost of insurance coverage and Medicare.

It has been said that the law is a reflection of the prevailing social values.  I don’t think I share this one.

By:  Peter G. Webb

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