Personal Injury and Accident Law
Written by Daniel G. Kagan
This article investigates the historical roots of our tort law, explains the distinction between intentional torts and negligence. It then discusses some of the most common tort cases in Maine’s courts, enlights the sovereign immunity concept, before answering a few frequently asked questions related to tort cases.
I. Tort Law History
To understand American tort law, it is helpful to appreciate its British origins.
A. Historically No Private Right of Action
An offense against another’s person or property was considered a breach of the King’s peace, and the King alone had the right to punish the wrongdoer.
When the Great Britain colonized North America, it brought its justice system with it. Much of what we take for granted today – trial by jury, habeas corpus, the right against self-incrimination, as examples – either were taken directly from the British system or were created as a reaction to that system.
Many centuries ago in England ordinary citizens did not have a right to sue one another in the courts.
An offense against another’s person or property was considered a breach of the King’s peace, and the King alone had the right to punish the wrongdoer. Over time, the role of the King’s courts, originally limited to prosecution of breaches of the King’s peace, expanded to include jurisdiction over private disputes. This expansion was well underway at the time of the British colonization of North America, and our tort system derives from the British system. Many of its idiosyncrasies remain with us today.
B. Criminal vs. Civil Law
The distinction between criminal and civil law is one of the hardest concepts for non-lawyers to understand. Simply put, civil law concerns offenses between private citizens, while criminal law concerns offenses against the State.
The O.J. Simpson trial was instructive as a case with both civil and criminal aspects. Mr. Simpson was accused of killing two people. The State of California charged Mr. Simpson criminally with murder. In a separate action, the families of the victims sued Mr. Simpson civilly for damages arising from the deaths.
Only the State of California had the right to bring the criminal charge of murder (a breach of the “King’s Peace”) against Mr. Simpson. The families had a separate right to sue Mr. Simpson civilly, to be compensated for the loss caused by his actions.
Mr. Simpson was found not guilty of murder, but was found liable to the families for damages in the civil trial. This makes sense because the two systems of justice – criminal and civil – are entirely separate and have different rules and standards. To convict a person of a crime, guilt must be proven beyond a reasonable doubt. A finding of civil liability requires only a finding that it is more probably true than not that the defendant caused the injury. Since the criminal standard is much more difficult to meet than the civil standard, a person charged with a crime can be acquitted but still be liable for civil damages.
C. Damages for civil liability
The typical penalties for criminal conviction, jail, probation, and fines differ from civil penalties.
The chief penalty in civil cases is to require the defendant to pay monetary damages to the injured party. Civil damages compensate an injured person for the damages caused by the defendant. The plaintiff has the burden of proving not only that the defendant caused harm, but also the extent of the harm. If the plaintiff meets this burden, the court will award the plaintiff money damages to be paid by the defendant.
In a case involving injury, these damages may include reimbursement for out-of-pocket expenses, as well as compensation for pain, suffering, mental anguish, loss of enjoyment of life, and future damages that will result from the defendant’s actions.
The purpose of damages is to restore the plaintiff to the position he or she would have been in had defendant not caused injury. That is why it is referred to as compensation or “compensatory damages”.
An ordinary damage award is not intended to punish the defendant. “Punitive damages,” or an award to the plaintiff designed to punish the defendant, are reserved under Maine law for those rare cases in which the defendant intentionally tried to hurt plaintiff.
II. Basic Tort Law
Tort law is divided into two categories: intentional torts and negligence. In practical terms, this distinction is most often important because of how it affects insurance coverage.
A. Intentional torts
An intentional tort occurs when one person intentionally causes harm to another. Some examples include assault, battery, false imprisonment, and conversion. In assault, a person intentionally puts another person in fear that he will be physically harmed. In battery, a person intentionally causes physical contact with another person. False imprisonment occurs when a person intentionally restrains another person unlawfully or prevents her movement. Conversion occurs when a person knowingly takes something that belongs to someone else with the intent of depriving that person of the ownership or use of that object.
Intentional torts often have direct criminal counterparts. Assault or battery can be the basis for criminal charges by the State. False imprisonment’s criminal counterpart can be kidnapping, and conversion’s criminal counterpart is theft. As discussed above, however, an important distinction between them is the standard of proof.
Another intentional tort that has been in the news recently is defamation. When one party makes false statements about another party, causing that party harm, defamation has occurred. (If the statements are written, the defamation is called libel; if oral, slander).
Defamation was the claim that the Texas beef industry brought against Oprah Winfrey, under a statute designed to protect native products from damaging public slander. These cases can be most interesting because they involve balancing constitutional free-speech rights against a person or business’ interests in protecting a name or reputation.
The critical feature that separates intentional torts from negligence is the requirement that the plaintiff must prove that the defendant intended to cause harm.
Punitive damages, addressed above, go hand-in-hand with intentional torts. Under Maine law, unless the plaintiff proves that the defendant acted with malice to cause plaintiff’s harm, plaintiff may not recover punitive damages.
Liability for negligence arises when a person fails to exercise reasonable care, and another person is harmed as a result. The law defines negligence as doing something that a “reasonable person” would not do under similar circumstances, or failing to do what a “reasonable person” would do under similar circumstances. This is known as the “reasonable person” standard and is grounded in common sense.
In order for a defendant to be found negligent, he must owe a duty to the plaintiff to act with reasonable care.
For example, in automobile accident cases, which comprise the largest percentage of negligence cases, a driver owes a duty to all other drivers on the road to use reasonable care in operating her vehicle.
In order to recover damages for negligence, the plaintiff need not prove that the defendant intended to harm him. The plaintiff need only prove that a reasonable person would have acted more prudently or carefully than did the defendant and that the plaintiff was harmed as a result.
1. Comparative fault…
While a plaintiff has the burden of proving that the defendant was negligent (failed to use reasonable care), and that the plaintiff suffered harm as a result of that negligence, the defendant has the right to argue that the plaintiff also was negligent so that his damages should be reduced. This is known as comparative fault. The defendant must prove that the plaintiff was negligent.
Historically, if plaintiffs are at fault at all, he could not recover for defendant’s negligence. This led to unjust results, in which defendants got away scot-free despite being overwhelmingly – but not entirely – responsible for the plaintiff’s injuries.
Because of these unfair results, the law of comparative fault has evolved. About 30 years ago the Maine Legislature adopted a comparative negligence statute.
Today, in Maine, defendants may still raise plaintiff’s comparative negligence but the plaintiff’s negligence does not wholly bar his recovery. Instead, the jury is asked to compare each side’s level of fault. If the fault is equal, or if the plaintiff is more at fault than the defendant, the plaintiff does not recover. If the defendant is more at fault than the plaintiff, the plaintiff is entitled to recover. Under that circumstance, the jury is asked to first compute the plaintiff’s total damages. Then the jury is required to reduce the plaintiff’s total damages by a “just and reasonable amount” that reflects his own responsibility for causing the harm. Typically, the recovery is reduced by the percentage of the plaintiff’s negligence, but the loss does not require that.
2. Joint and several liability and imputed negligence…
When one person acts negligently and causes harm to another single person, figuring out liability is relatively uncomplicated. The plaintiff shows that the defendant was negligent, the defendant shows that the plaintiff was himself negligent, and the jury is asked to compare the levels of fault. Not all cases are that simple, however. It is quite common to have two or more defendants who share responsibility for the plaintiff’s harm. What does the law do then?
Maine law includes the doctrine of “joint and several liability”. Joint and several liability means that if the plaintiff proves that more than one defendant caused her harm, each can be held liable for the full amount of plaintiff’s damages. The defendants are jointly liable for the entire amount of damages.
This is a very important doctrine, and one that is often misunderstood. After all, why should a defendant who is only 20% at fault bear 100% of the liability burden? The answer is that the plaintiff should not have to bear the burden of identifying, locating, and suing each and every potential defendant. If the plaintiff can show that one defendant was negligent and caused his injuries, it should be up to that defendant to identify other defendants with whom to share liability and split the cost of damages. Put another way, when several persons combine to cause a plaintiff harm, it is fairer to make the defendant who is proven to be at least partially responsible bear the cost and burden of bringing the other responsible parties into the lawsuit.
Imputed negligence is somewhat related to joint and several liability, in that it also holds one person liable if another person was negligent.
There are situations in which one person can be held liable for another person’s actions, even if the responsible person was not negligent and did not directly cause the harm.
For example, employers are held liable for negligence of their employees. So if an employee drives negligently, striking another vehicle and injuring its driver, that driver can sue not only the negligent driver but also his employer – so long as the injured party can prove that the employee was acting within the scope of his employment at the time.
Imputed negligence used to apply between a parent and a child, so as to limit or prohibit a child’s right to recover. This is no longer the law in Maine. Under the old law, if a child was hurt and a suit was brought against a negligent party, that party could sue the child’s parent and argue that the parent was negligent for failing to control the child. In other words, the parent’s negligence was “imputed” to the child.
Two years ago, the Maine Law Court joined the rest of the country in ruling that this is unfair to the child. Now, the child can recover 100% from any negligent party just like any other plaintiff. The parent’s negligence, if any, is no longer a bar to the child’s recovery.
III. Common Types of Tort Cases
There are many different types of tort cases. The following are the tort claims that are most regularly filed in Maine’s courts:
- Automobile negligence
- Premises liability
- Product liability
- Professional liability
- >Domestic torts
- Wrongful death
A. Automobile negligence
The negligence case with which most people are familiar is the automobile accident. The basic elements of negligence discussed above apply directly to the automobile accident case. Each driver has a duty to operate a motor vehicle in a reasonably safe and careful manner. If a driver fails to drive in a reasonably safe and careful manner, and as a result someone is harmed, that person has a right to bring a negligence action against the negligent driver.
Much of automobile negligence law derives from common sense. To assist a jury in deciding whether the defendant driver failed to meet the “reasonable person” standard (failed to drive in a reasonably safe and careful manner), the trial judge will instruct the jury about rules of the road. These are rules that are established either by the Maine Legislature or by prior cases, and that give standards for driving that all drivers ought to follow.
These are common sense rules with which all of us, as drivers know (or certainly should know). For example: drivers entering from a side road or driveway must yield the right of way to drivers already on the main road; drivers have a duty to pay attention to the road ahead and see what is there to be seen, and take action to avoid obstacles in their path; drivers may not overtake another vehicle unless the way is clear and the pass can be made in safety; drivers may not drive at a speed greater than is safe for the road, given all the circumstances in existence at the time. This is by no means an exhaustive list, but rather gives an idea of the types of instructions trial judges commonly give to juries.
Sometimes there is evidence that a driver violated a particular law or statute. The violation itself does not mean the driver is automatically liable for the plaintiff’s damages. The violation has to be related to the negligence claim for the violation to be introduced as evidence.
For example, if plaintiff claims the defendant driver was going too fast and lost control of his car, evidence that the driver’s speed was in excess of the posted speed limit would be relevant and likely would be admitted. Evidence that the defendant driver’s vehicle had an expired inspection sticker, however, would likely not be admitted into evidence – unless the plaintiff could show that the vehicle was defective at the time of the accident, that the defect would have been corrected with a state inspection, and that the defect caused the accident.
The law of comparative negligence and the doctrine of joint and several liability discussed above also apply to automobile negligence cases. All motorists have a duty to drive in a reasonably careful fashion, and if a plaintiff was not doing so, she runs the risk of a comparative negligence claim by the defendant at trial. If two or more motorists combine to cause an accident, either can be held 100% responsible for the plaintiff’s injuries. This can be especially important in automobile negligence cases, because, even if one motorist has insufficient or no insurance, the plaintiff can still recover full damages from the other negligent motorist.
B. Premises liability
Consistent with negligence law generally, all owners or occupiers of land have a duty to keep their property reasonably safe for all persons who have a right to be there. The law does not require that an owner or occupier of land eliminate all conceivable hazards, but rather that he meet the “reasonable person” standard. Any claim that a property was unsafe will have to meet the test, “would a reasonable person have recognized the hazard and corrected it?”
There are several types of premises liability. One obvious type of case arises when an owner or occupier of land allows a condition to exist that a reasonable person would recognize is likely to injure someone. If a homeowner knows that the stairs to his front door are rotting, for example, it is probably negligent to leave them in that condition without at least warning visitors to avoid the stairs. The rules of comparative fault apply to these cases.
In premises liability cases, especially, it is important to recognize that whether the homeowner is insured has no bearing on whether the homeowner is liable to the plaintiff. Often people assume that if the homeowner is insured, the plaintiff can collect so long as the plaintiff can prove the injury occurred on the defendant’s property. This is incorrect. Insurance will pay only if the plaintiff can prove that the defendant was negligent in unreasonably allowing the hazard to exist, causing plaintiff’s injury.
Another kind of premises case, not so well-known in Maine, involves inadequate security of the premises. Under Maine law, under certain circumstances a business can be held liable if a customer is attacked on the business’ premises. These cases are more common in other states where the crime rate is higher, but they do occur in Maine too. If a customer of the Maine Mall, for example, were attacked in the Mall parking lot, and could show that the Maine Mall knew that its customers were likely to be attacked but provided no security, the customer could hold the Maine Mall liable for her injuries, even though the damage was caused by a criminal act, and not by a Maine Mall employee.
C. Product liability
Liability for defective products was historically very limited. Only consumers who had purchased the product from the manufacturer could bring a lawsuit for damages if there was a defect in product design or manufacture. This was because the right to recover was grounded in contract law. If the person who got hurt was not the one who bought the product from the manufacturer, he had no contract and therefore no right to recover (this was called the doctrine of privity of contract). Also, the damages were limited by the contract, regardless of the severity of the harm.
Most states, including Maine, have realized over the years how unfair and arbitrary these rules were and have changed the law. It is no longer necessary that the plaintiff have purchased the product from the manufacturer directly. In fact, the plaintiff need not be an owner of the product at all. So long as the plaintiff is a reasonably foreseeable user of the product, the claim can be brought.
Today a plaintiff harmed by a defective product need not rely on contract law for recovery. Rather, general tort law applies. Was the product negligently designed or manufactured? In some situations, a plaintiff need not even prove negligence. If a plaintiff shows that a product was manufactured defectively, and the manufacturing defect caused the plaintiff injury, the plaintiff need not prove where in the manufacturing process the defect occurred; proof of the defect is enough. A plaintiff may also recover without proving negligence by showing that the product was inherently dangerous as sold.
This shift toward protecting consumers in product liability law over the years is a recognition that manufacturers are in a better position than consumers to test products and determine whether they are safe for the market. Rightly or wrongly, consumers assume and believe that if a product has reached the market, the manufacturer has done the testing to be sure the product is safe. Too often this is not the case. Even though the law has shifted somewhat toward the consumer over the past several decades, manufacturers are lobbying very hard to shift the pendulum back toward them, and away from consumers.
D. Professional liability
It is not just manufacturers who can be held liable for their errors. Professionals, such as doctors, accountants, architects, and lawyers, can be held liable if they do not meet reasonable professional standards.
The best-known type of professional liability is medical malpractice.
If a doctor or other health care provider performs a procedure on a patient that does not meet the standard of care for doctors in the community, and the patient is harmed as a result, the patient can bring a claim against the doctor for medical malpractice. Similarly, if the health care provider fails to undertake a procedure or recognize an illness or condition that should have been recognized, and the patient is harmed as a result, the health care practitioner can be liable for the harm caused.
The medical profession has resisted the development of medical malpractice law for obvious reasons. As a result of its strong lobby, Maine, like many other states, has a pre-suit screening process which is supposed to evaluate claims before suit is filed.
The court appoints a three-person panel – comprised of a doctor, a lawyer, and a panel chair – to hear the case in summary fashion and decide whether the case has merit.
If the panel decides unanimously that the case has merit, the defendant can still go to trial.
If the panel decides unanimously that the case has no merit, the plaintiff can still go to trial – but the defendant gets to tell the jury that a panel already decided the case has no merit.
Because of the unfairness inherent in this system, the Legislature is working on revamping the screening panel process. While it is likely to survive in some form, it is likely that the process will be streamlined so as to be less costly to the plaintiff, and to provide a lower standard of proof to get to a jury.
There is no screening panel process for other types of professional negligence. For attorneys, however, Maine law provides an arbitration process that allows clients unhappy with the fee charged by their lawyer to get their disputes addressed quickly and fairly. If a client opts for arbitration, the lawyer is obligated to participate.
E. Domestic torts
It used to be the law that spouses could not brings actions against one another, and children were prohibited from suing their parents. This was consistent with the societal view that what happens in a family should stay within the family. This notion has undergone significant change in recent years, the result being that the artificial barriers to suit between family members have been eroded.
Under the old law, if a motorist drives negligently and injures members of his family in the vehicle, the motorist could not be held liable for the damages caused – even if he had insurance to cover damages caused by his negligence. Today, the motorist can be held liable for these damages.
F. Wrongful death
Wrongful death is not a separate tort action. Whether a person acts negligently or intentionally to cause another’s death, the damages to be awarded are governed by the law of wrongful death.
Historically at common law, there was no recovery for another’s death. The theory behind this is that no amount of compensation can restore a person from death, so none should be awarded.
While facially true, this theory ignored the effect that a person’s death has on those close to the decedent. Accordingly, the law has evolved to recognize some level of damages to be paid when a tortious act causes death.
Because wrongful death is governed by statute, the measure of damages varies in different states.
Maine’s wrongful death law is among the most limiting in the country. Under Maine law, the victim’s estate can recover up to $150,000 for loss of comfort, society and companionship. While this amount was doubled in the last legislative session from $75,000, it still places Maine well near the bottom in recoverable damages. The decedent’s relatives may also recover medical and funeral expenses proven to be related to the act causing the death as well as for any conscious pain and suffering the victim endured between the time of the tortious act and the death. Finally, the decedent’s relatives also can recover for financial hardship caused by the death.
IV. Sovereign Immunity – “The King Can Do No Wrong”
This presentation began with a discussion of the British influence over our justice system. There is one area of tort law in which the British influence still holds sway. This is in the area of sovereign immunity.
In pre-colonial England, citizens had no right to bring an action against the British government. This rule was a function of the divine right of the King, a consequence of which is that the King could do no wrong. The sovereign was therefore immune from liability.
Although the British monarchy faded from preeminent political power in favor of a democratic government, the principle of sovereign immunity remained the law of the land.
It is interesting that sovereign immunity survived not only the jump across the Atlantic to the colonies, but also the establishment of a new country in North America, independent from its British roots. While this country sought independence from an arrogant, overbearing government, it retained the immunity of the sovereign for its newly formed state and federal governments.
Modern sovereign immunity in the United States starts with the proposition that no state entity – county, town, school district, department, or the state itself – may be sued in tort. While sovereign immunity varies substantially from state to state, generally the state is only liable for those actions that the state has expressly consented to be liable. Thus, you end up with a broad doctrine of sovereign immunity, with a patchwork of liability which varies depending upon the legislatures of each state. Maine’s governmental immunity is broader than most, with few exceptions enacted by the Legislature.
The application of these exceptions in Maine can yield arbitrary results. For example, if a state building such as a school is maintained poorly and a student gets hurt as a result, the student can recover from the school district. If, however, the same student gets hurt on the school grounds because the grounds were maintained equally poorly, the student cannot recover because school grounds do not fit within the legislative exception.
V. I’ve been involved in an accident – What do I do?
Obviously, if you’ve been injured the first thing you should do is to make sure you get the quality medical care you need. Your first concern should be for your health.
You should be very careful about discussing what happened with other people. Here are some answers to common questions:
- How Do I Get My Medical Bills Paid?
- What About The Damage To My Car?
- How Can They Contest Fault If They’ve Already Paid For My Car Repairs?
- Won’t The Insurance Company Look After My Interests?
- But The Insurance Company Representative Said I Don’t Need A Lawyer!
- If I’m Fair and Honest With The Insurance Company, Won’t They Be Fair and Honest With Me?
- But I’m Not the Type To Bring A Lawsuit!
- Why Do I Need a Trial Lawyer To Represent Me?
- Will I Have To Go To Court?
- The Person Who Injured Me Doesn’t Have Insurance – Does That Mean I Can’t Recover?
- How Do I Get My Medical Bills Paid?
There are many sources of payments for medical bills. Unfortunately, not all apply to every case, and it may be that there is no source to pay for medical bills in your particular case.
If you carry medical insurance, you should consider submitting all medical bills to your health insurance company. After all, chances are you are paying a hefty annual premium to carry health insurance, and it is there to be used. Be warned, however, that health insurers may sometimes refuse to pay for your medical care if they decide the bills arose because of someone else’s fault.
In most cases the health insurer has no right to refuse to pay these bills, but sometimes they will refuse anyway in hopes that you will just pay the bills out of your pocket. Make sure to look at your own medical insurance policy to determine your rights and obligations, or have your lawyer look it over for you.
Also, be aware that some health care providers will refuse to submit your medical bills to your health care insurer, particularly if they believe that there is a tort claim to be made against the person who injured you. Why do they do this?
Because if they submit your bill to a health care provider, they often get paid at a pre-negotiated reduced rate. Under ordinary circumstances, if they have no other way of getting paid, they will accept this reduced rate. If they feel they can collect 100% from your tort case, however, they may be reluctant to submit your bills to the health care insurer and get paid less. If you don’t insist the bills be submitted to the health insurer (or simply submit the bills yourself), you could get into trouble later on.
For example, if you lose your legal case to recover damages, you will be stuck with medical bills that should have been paid out of the health insurance on which you’ve been paying big premiums. That’s not fair, and it can be avoided easily if you insist on getting the bills paid through health insurance.
Be aware that most health insurance policies include a clause requiring you to pay them back if you recover from the person who hurt you.
Under Maine law, you may not have to pay them back 100% of what they spent. Your best bet is to contact a lawyer who specializes in handling these kinds of cases to guide you.
Another option is medical payment insurance, available under several types of liability policies. Automobile and homeowner coverage usually have this type of insurance, which is available to pay medical bills to anyone who gets hurt in your car or on your property (depending upon the policy) regardless of who is at fault.
The catch to this coverage is that there is usually a limited amount of medical payment insurance available, and once you go over that amount you’re stuck with the balance yourself. Also, if you recover from the person who injured you, depending upon the policy, you will probably have to pay some or all of the this back. Again your best bet is to see a lawyer who handles this type of case routinely.
What About The Damage To My Car?
In the best of all worlds, you will have collision coverage on your car. This means that you have insurance to pay for the damage to your car regardless of whose fault it is. You should contact your insurance agent, inform them of the accident, and get an estimate for repair of the vehicle.
If the damage is over a certain amount, the insurance company will likely insist on having their own person look at the damage and come up with their own estimate. It is worth having your estimate done at an established, reputable body shop because the insurance company is more likely to accept their estimate than one written by an unknown shop.
If you don’t have collision coverage, you may have a problem because you will be relying on the other driver’s insurance company to pay for your vehicle. If you are lucky, the other insurance company will acknowledge responsibility and pay for your damage.
Often, however, the other insurance company will insist that the accident was partly your fault, and try to reduce the amount they pay you for the damage to your car. When this happens, you are stuck with either accepting the reduced amount they offer you or taking the insurance company to court.
How Can They Contest Fault If They’ve Already Paid For My Car Repairs?
If the other driver’s insurance company pays for the damage to your car, it doesn’t mean they won’t oppose your claim for your injuries.
It is very common for insurance companies to contest your injury claim even though they have paid for your property damage.
Won’t The Insurance Company Look After My Interests?
Common sense suggests otherwise. When you suffer injury or damages that are covered by insurance, the insurance company’s interests are different than yours. It is in your interest to get paid fully for your medical costs, lost earnings, and similar expenses, as well as to receive a fair amount for your pain and discomfort. In contrast, it is in the insurance company’s interest to minimize the amount they pay to you because whatever they don’t pay for your claim they get to keep.
This is not to suggest that everything an insurance company does is automatically contrary to your interests, or that the insurance industry is inherently evil. Rather, the point is that the insurance business is just that, a business, with a bottom line to consider just like any other business. This means that a successful insurance company takes in as much revenue as it can in the form of insurance policy premiums, and pays out as little as possible in claims. Since the insurance company’s goal is ultimately to pay you as little as possible, it is unwise to rely upon the insurance company to protect your interests.
But The Insurance Company Representative Said I Don’t Need A Lawyer!
In most cases, insurance companies would prefer that you not hire a lawyer to protect your interests. The reasons for this are obvious. In contrast to the insurance companies, who handle claims like yours every day, you’ve probably never had to deal with this sort of thing before.
Without a lawyer to protect you, the insurance company always has the upper hand – they know the rules and you don’t.
If I’m Fair and Honest With The Insurance Company, Won’t They Be Fair and Honest With Me?
Maybe, but not likely. In our experience, insurance companies frequently take advantage of your good will and honesty to gather information and evidence that they later use against you.
For example, a typical ploy used by automobile insurance companies nationally is to get injury victims to answer one-sided questions about how the accident happened and the injuries that occurred as a result. They accomplish this with a harmless looking letter saying “out of fairness, we just want you to have a chance to give us your side of the story”.
That statement then becomes evidence that the insurance company uses against the injury victim when the victim doesn’t accept the company’s low settlement offer.
Another example commonly used is to get the injury victim to see a doctor selected by the insurance company, who then reappears later to testify against the victim’s claim to recover for her injuries.
Remember, it is not in the insurance company’s interest to see that you are fully compensated, but rather to see that the company saves as much money as possible.
But I’m Not the Type To Bring A Lawsuit!
Few of us are.
At my firm we find that almost uniformly our clients are ordinary people who never expected to be in a position of having to retain a lawyer to protect them when fighting an insurance company.
After working hard to pay premiums for many years without a claim, people have a right to expect that the insurance company will treat them properly. When, as so often happens, the insurance company denies or challenges a claim for injury or damages, it often comes as quite a shock.
Why Do I Need a Trial Lawyer To Represent Me?
If you are not being treated fairly, your only way to fight back and force the insurance company to treat you appropriately is through court. That is why your single best weapon against the insurance company is having an experienced trial lawyer representing you.
Look at it this way. The insurance company wants to pay you as little as possible. If what they offer isn’t enough, you can either (a) accept what they offer or (b) reject the offer and take them to court. If you don’t have a lawyer, the insurance company knows that you don’t stand a chance of beating their defense lawyers in court.
Even if you have a lawyer, that may still not be enough. Insurance companies know which lawyers have the trial experience to do battle aggressively against them and beat them in court. Just as you would choose a doctor who specializes in particular health problems, you should choose a lawyer whose training and experience will serve you best in the arena that matters most.
Will I Have To Go To Court?
Not always, but it’s possible. Ironically, the best way to avoid having to go to court is to convince the insurance company you are completely prepared to do so. This comes back to why it is important to choose an experienced, aggressive trial lawyer to represent you in your case against an insurance company.
We have found that insurance companies are far more likely to settle, and for far greater amounts, when the injury victim is represented by an experienced trial lawyer who is fully prepared to try the case in court if necessary.
This doesn’t mean that you will necessarily have to go to court.
The facts are that as many as 60% of cases settle before suit, and another 25-35% settle before reaching trial.
If you want your case to be one of those that settles before suit for the full value, be sure to hire an experienced trial lawyer who knows what to do.
The Person Who Injured Me Doesn’t Have Insurance – Does That Mean I Can’t Recover?
Not necessarily. While there are exceptions, generally, when someone hurts you through negligence you have a right to recover damages from that person.
Liability insurance is simply a contract requiring the insurer to pay the damages caused by the wrongdoer. If there is no insurance, you can collect from the wrongdoer personally.
Of course, that’s often easier said than done. There may be other sources of insurance to consider.
For example, in Maine every insurance policy has to include “uninsured motorist” insurance. This is insurance that pays your damages for you from your own policy if the motorist who caused the injury didn’t have insurance. Instead of you having to sue the wrongdoer to collect your damages from him, your insurance company pays you and goes after the wrongdoer to get paid back what it spent.
Whether there is insurance, whether it applies to a particular case, whether there are limits, and whether there are additional policies are very complex and difficult areas of law to understand.
It is recommended that you see a lawyer with special expertise in sorting these issues out to help you understand your rights.