Ask The Attorney: Car Accidents

Here are attorney James Sexton's answers to some frequently asked questions about car accidents. To ask him the rest of your questions and learn about options in your specific situation, please call The Sexton Law Firm at 619-678-1833 or contact us online. We offer free consultations to all clients.

What is a person entitled to if they have been in an auto accident?

The types of damages and what people are entitled to after being in an auto accident include getting their car fixed. That is the first thing, car repair. They are entitled to loss of use, which is normally rental car expense. While their car is getting fixed, they can rent another car. When their car is done being fixed at the shop, then they return the rental car. That is called "loss of use." If there is no rental car, loss of use can be $15 to $20 a day. Other things that you would be entitled to from an auto accident-type claim are medical bills being paid for, your lost wages, and then pain and suffering. Regarding the medical bills, just because you go somewhere for treatment does not necessarily mean the insurance company is going to pay the full amount of the medical bill. They have to be what is deemed reasonable and necessary medical bills.

So, if you want to see a chiropractor three times a day for four months straight, that is probably not reasonable and necessary. They will pay some of it, but not all of it. It is not necessarily true that if you go see a doctor, the insurance company is going to pay every cent and every dollar of that medical bill. Concerning lost wages, the thing there to be reminded of is you always need to get a doctor or health care professional to document your time off from work. If you just decide, "Well, I'm feeling in pain today, and I feel really stiff and sore, so I'll just stay home," then once again, the insurance company wants to see proof. They want to see documentation of some doctor taking you off work, or else anyone could just stay home and watch Oprah Winfrey on TV and get paid for their lost time. Insurance company adjusters need to see some documentation. They would need to see a doctor's note excusing you from work for a couple days or a week, or whatever the case may be, to legitimately pay for that time off from work.

Lastly, there is the pain and suffering component, and that is generally inconvenience, pain. That is a very gray area. We try to document those things by the forms that we give our clients that talk about their activity limitations at work, at home, and hobbies. This includes everything from washing dishes to not being able to take your dog on a walk, and everything in between. We want that documentation combined with the notes from the doctor's office that correspond with what the person is saying. This validates a wage-loss claim. So, if the doctor is saying, "Yes, the patient came in today and has not been able to walk his dog for a month. He has a Great Dane and is not able to walk the Great Dane because he is in so much pain." The client states on the doctor's forms that he is having difficulty with activity limitations and walking the dog or vacuuming or doing dishes. That is evidence. That is something that we can use for pain and suffering versus, "Oh, I've had no pain. Everything I could do before my injury accident I can do after. Give me money, Mr. Insurance Adjuster, for my pain and suffering."

As mentioned previously, many insurance companies are using computer software to evaluate injury claims. They need to see what types of diagnoses the doctors are making. Basically, a simple neck strain is given a certain amount of dollars versus a disk herniation in one's neck, which is more serious. It is important for the doctor to document with the codes used in diagnosing injuries as well as supporting the person's pain and suffering and activity limitations in their chart notes. What exactly is affecting the person to allow for the pain and suffering? If it is just something that is very transitory and lasts a few days, the insurance adjusters and the computer software they use really do not give much for that. So, it has to be more long-lasting than just a few days. That is how we support and prove the pain and suffering component.

If someone is in an accident with an uninsured motorist, how would you help them receive compensation?

Uninsured and underinsured motorists are a problem. We live in Southern California, and there are a lot of people who are driving around without insurance. And, that is what an uninsured motorist is, a person who does not have insurance. An underinsured motorist is a person who does not have enough insurance. So, the first thing that has to be checked is, does your own insurance policy that covers the car you were driving, even though you are the accident victim, have something on your policy called "uninsured motorist coverage"? Because, if you do not and you are struck by another vehicle that does not have insurance, you are out of luck. There is nothing that can be done. You can try to take that person to small claims court, or court in general, but good luck in trying to get that person to pay you out of his pocket versus having insurance to cover it. That is why if you live in Southern California, on your insurance policy, no matter who it might be with, you want to make sure you have something called "uninsured motorist coverage."

If you have the coverage and you are struck by an uninsured motorist, it works the same way as if the person had insurance, except you are going through your own insurance to cover your injuries and wage loss and pain and suffering. People ask me all the time, "Is it going to cause my car insurance company to cancel me or raise my rates if I make such a claim against my own company because the driver who hit me did not have car insurance?" The answer to that is no. That is why you pay your premium every month for uninsured motorist coverage, just for that type of occurrence. The second category is underinsured, in which case if you have limits of uninsured motorist coverage, let's say above $15,000. If you have $30,000 in coverage of uninsured motorists, and the driver of the car that hit you only has $15,000, you can get $15,000 from the insurance company of the driver who hit you and caused your injuries. You would then get an additional $15,000 from your own insurance company, assuming your injuries are worth more than $15,000.

So, that is the other reason why you would want uninsured motorist coverage to cover you not only if the person that struck your vehicle did not have insurance, but also if he did not have enough insurance. You would make a claim for your underinsured motorist under your own policy. I cannot tell you how many cases we see where the people do not have uninsured motorist coverage or do not have enough to cover them beyond the minimal policy which, by law, is $15,000 in California. They do not get what they deserve in compensation because there is not sufficient coverage.

A third reason why you should have the uninsured motorist coverage is that it does not only cover you in car accidents, it can cover you in pedestrian accidents as well. If you are a pedestrian and are walking in a crosswalk and have the green light to cross in the crosswalk and you are struck by a car or other vehicle that does not have car insurance on it, you can make an injury claim through your uninsured motorist coverage that you have on your car, even though you were not in your car. Many people do not realize that uninsured motorist coverage also covers an individual if they are struck as a pedestrian by a vehicle that does not have insurance.

Why should I hire a lawyer for my auto accident claim?

You should hire a lawyer to represent you in your claim because attorneys know how to navigate the legal aspects of your case to achieve a maximum result. They know the complicated process of an injury case and know how to achieve a maximum recovery. Also, insurance companies are most likely to award higher settlements right out of the gate to claims that are being represented by an attorney.

The Sexton Law Firm is the best choice for an auto accident claim because of our experience. I have been doing this personally about 23 years, both on the defense side and the personal injuries side. On the defense side, after many, many years I know what the insurance adjusters look for. I know what they like. I know what they do not like. I know what the settlement ranges of these cases are.

We are always staying up-to-date on information, on better ways to do things, almost like building a better mousetrap type of thing. We are always up-to-date on what the insurance companies are doing to try to lower claims. Remember, they are not in the business of giving money away. They are always looking for reasons not to payout money. We constantly have to be aware of what the insurance companies are looking for and what they are basing their claims on, what types of values or factors.

Are they looking more at the damage to the vehicles? Are they looking at what types of the injuries? Are they looking at the pattern of treatment? Does it matter if a person misses a week and then goes to treatment, or goes three weeks later? What are the types of things the insurance companies are looking for or doing so they can reduce their exposure to reduce the amount that they payout in their claims? My job as an attorney is the opposite. We are trying to maximize people's recovery. We go to seminars. We get up-to-date on what the insurance companies are using to evaluate claims. Now, many of them are using computer software. We have to be well-versed in what that computer software is so we know what types of variables are being plugged into the software to get the types of values that are coming out as far as the values of these claims and what the adjusters are looking at. If we do not know what factors they are using, how are we going to get the maximum amount for our clients?

A new variable or factor is whole person impairment. It is a workers' compensation term, and it has to do with how a person's injury is impairing their ability to do certain jobs. It is not permanent disability. It is more of an impairment issue, how their injuries are impairing them to work. There still might be a lot of jobs they can do with their impairment, but there are certain jobs they cannot do. If it happens to be that was the job they were doing at the time of their accident, that is something important that is going to increase the value of a client's claim. So, if an attorney does not know that, they are not doing the best job they can for their clients. Personally, I want to do the best job for my clients. That is why my firm is a better choice, if not the best choice, for a car accident claim.

Also, it is very expensive to go into litigation on some of these car accident claims. Generally, people do not want to have to file lawsuits and go to court. It costs more money, which comes out of their settlements, to do that. They would much prefer to get their settlements done before having to file lawsuits and taking more time and costing more money. So, if you are not aware of what the insurance companies are looking for, it is much harder to settle these cases. You are going into litigation where there is sometimes many more months involved to get something resolved. We want to get things done and done right, and get our clients the maximum amount of money before we have to file lawsuits.

If we do file lawsuits, that is okay too. Personally, I have been to trial more than 20 times. And, if we have to go to trial, we have to go to trial. But as I said previously, clients usually do better settling prior to litigation than they do afterward, after you plug in all the additional costs. Even if they get a higher gross amount for a settlement, it still sometimes can result in a less amount net for them for their injury claim because of all the additional costs that are involved.

Lastly, I really do enjoy helping people. I am much happier doing what I do now. I am helping people get what they deserve and trying to help them heal from their injuries. My firm gets them to the right types of doctors to help them achieve the best potential of getting better.

Contact The Sexton Law Firm in Chula Vista today at 619-678-1833 to understand how we can help you recover from your injuries. We will provide a free consultation to help you understand your options, and we only collect our fee if your case is settled in your favor.