What Are The Stages Of An Injury Case In Massachusetts?
- Gathering Information
- Claim Analysis
- Uninsured/Underinsured Motorist Claims
- Property Damage
- Personal Health Insurance/Medical Payments Coverage
- Workers’ Compensation Claims
- Rental Car Reimbursement
- Beginning a lawsuit
- Mandatory Arbitration/Trial in Superior Court
Although we will interview you in-depth, the interview will only result in obtaining general information regarding the date of the collision, the place of the collision and the circumstances surrounding the collision. We will begin by making a file on your case that organizes the facts we have obtained, and we will begin preparing as if your case was going to proceed to trial. We prepare each file as if it was going to trial, even though approximately 90 percent of all cases are settled short of an actual trial occurring.
We will notify the other party’s insurance company that you have retained Bailey & Burke as your attorneys. We will also request that the insurance company give us a copy of any statements you may have given them.
Letters are also sent to all physicians and hospitals involved in the case, notifying them that you have retained Bailey & Burke to represent you. At the same time, we request that they, your physicians and hospitals, do not give any information to any insurance adjuster or investigator for the other party. Letters are also sent to other people with whom you have incurred a bill as a result of your injuries, advising them of our representation and advising them that any unpaid medical bills may be paid from any recovery made in your case. We will further advise them that you will execute a lien against your recovery. This is done because many creditors are willing to wait for the payment of their bill if they have a reason to do so. However, some creditors will actively pursue payment no matter what action we take, and as I am sure you are aware, all medical bills are your responsibility whether a recovery is obtained or not. Any police officers who may have been involved may be interviewed, witnesses may be contacted, and, if necessary, photographs of the collision scene will be taken. Additionally, any necessary information from the Director of Internal Revenue, employers, schools, or other persons who have information supporting your claims may be obtained. If necessary, and after a discussion with you, an investigator may be hired to assist us in this investigation. That cost, like other out-of-pocket costs, are your responsibility and will be deducted from any recovery.
No case should be settled until your medical condition has reached a medical end result (maximum medical improvement), and all investigation has been completed. It may be impossible to obtain all the necessary medical information because your doctor(s) cannot answer many questions until your treatment has concluded. We have to wait to receive a final medical report from your doctor about your medical condition and possible future medical expenses.
As soon as the investigation has been completed and all necessary medical information is obtained, we will evaluate your case. We will attempt to help you understand our evaluation and will attempt to arrive at a proper settlement amount with you. No settlement is ever accepted or rejected without your consent.
UNINSURED/UNDERINSURED MOTORIST CLAIMS
An uninsured motorist claim is where the person who is responsible for your injuries had no insurance and you are filing a claim against your own uninsured motorist coverage. An uninsured motorist claim is available if you have uninsured motorist coverage from your insurance company. Your insurance company assumes the role that would have been taken by the responsible party’s insurance company if there had been insurance, except that uninsured motorist coverage does not cover property damage. You must notify your insurance company of the collision to begin this process (we do this for you). However, except in very rare circumstances, if we cannot agree to a value for your claim, we do not go to trial. We go to an arbitration hearing as defined in your insurance contract. The process is that we agree on an arbitrator or ask the court to appoint an arbitrator. An arbitration is like a mini-trial, with sworn testimony and witnesses, but with relaxed rules of evidence. The decision of the uninsured motorist claim arbitration is final.
Property damage usually means damage to your vehicle. It can also cover damaged clothes, broken glasses and the like. The property damage is usually settled long before you are well again. We can settle your property damage without dealing with your personal injury claim. Except in very rare instances, i.e., a collector’s car or bike, a show car or bike, etc., the other insurance company is responsible only for the fair market value of your vehicle. You may owe more than the market value of your vehicle: The insurance company does not have to pay you what you owe on the vehicle, only it’s market value. The insurance company has a duty to put you back in the position you were in just before the collision. Therefore, if you owed more than your vehicle was worth before the collision, you will owe more than the amount of money received from the insurance company. If your vehicle is “totaled”, meaning that it would cost more to repair than the vehicle’s fair market value, you generally have two choices: (1) you accept the amount offered and sign the title of your vehicle over to the insurance company or; (2) you accept the amount offered less its salvage value and you keep your vehicle. You will have to obtain a “salvage” title: Your new title will have a notation designating your vehicle as a “salvage vehicle”. IF YOU OWE MONEY ON YOUR VEHICLE DO NOT EXPECT TO SEE THE CHECK FOR THE PROPERTY DAMAGE, THE CHECK FROM THE INSURANCE COMPANY WILL GO DIRECTLY TO THE FINANCE COMPANY.
If the damage is less than the fair market value of your vehicle, the insurance company will repair your vehicle. Often when your vehicle is only minimally damaged and is drivable, the insurance company will give you a check that appears to be a full and fair settlement knowing that if you go to a body shop, the body shop will have to call the insurance company to obtain a “supplemental estimate”. This is done because if you cash the check and later go to a body shop and additional damage is found, it will be difficult to prove that the damage came from this collision and the insurance company does not have to pay for the additional damage.
PERSONAL HEALTH INSURANCE
If you have personal health insurance, the insurance company contracts usually contain a “subrogation” clause that allows them to recover (i.e., to be paid back) any amount that they pay for injuries you sustain as the result of a third party’s negligence (i.e., the person that injured you). Simply, you probably will have to pay back your health insurance company, from your settlement, for any money they have paid to physicians or hospitals.
WORKERS’ COMPENSATION CLAIMS
If you were injured in a motor vehicle accident while on the job you must pay back the Workers’ Compensation Insurance Company for all medical expenses and wage payments that they have made to you. However, it is very important that a claim is filed for you because the claim gives you great protection for your injuries in the future.
RENTAL CAR REIMBURSEMENT
Rental car reimbursement is not a simple process. If the other person is 100 percent at fault and your vehicle is not drivable, the other person is responsible for providing you with a replacement vehicle. However, the insurance company for the other party will not agree to pay rental car charges until they are assured that their insured is 100 percent at fault and that process can take an extended period of time. We have resources to place you in a rental car on a lien basis, pending resolution of the liability question. However, if you are found to be partially at fault for the collision the other party’s insurance company is not required to provide you with a replacement vehicle and you will be asked to return the rental car and would be responsible for those rental costs. Many insurance companies refuse to accept a direct bill from a rental car company or seek to reimburse you after you have paid the rental car company even though you are fault free, therefore, we would use our resources to provide you a rental car on a lien.
BEGINNING A LAWSUIT
If your claim is against an individual who had insurance and a settlement cannot be reached with the insurance company, Bailey & Burke will consider the advisability of filing a lawsuit. We will discuss the additional costs and the likelihood of obtaining an acceptable result. In some cases, however, it is important to start a lawsuit immediately. By signing the contingency fee agreement you have given us permission to file a lawsuit if we determine it is necessary to protect your rights.
A lawsuit begins by filing in the court having jurisdiction, a document called a “Complaint”, which explains the basis for the lawsuit and your injuries in a general way. You are called the “Plaintiff”, the other party is called the “Defendant”. The Defendant is then served by the sheriff with the Complaint and takes these papers to his insurance company, which delivers them to its lawyers. The lawyers hired by the insurance company to defend, deliver to us a document called an “Answer”, and at that point, “the case is at issue”.
We want you to know that although a lawsuit has begun, the settlement is always possible and is very often made just before trial or even after the trial has started.
Once the lawsuit has begun, both sides have the right to obtain information from the other side. This process is called “Discovery”, but the process is actually “Disclosure”. We have a duty to provide to the other side all the information the request that we have that is relevant to your claim. Additionally, both sides obtain information through “Interrogatories” (written questions sworn to be true that must be returned within 30 days), “Depositions” (Sworn oral testimony before a court reporter – we are present to protect your rights), and medical examinations by a doctor of their choice at their expense, if allowed by the Court. Under certain circumstances, we can record the examination or we can be present. (We expect their doctor to prepare a report that favors the Insurance Company’s position, and are surprised with a report supporting your doctor and your claim).
The theory is that if both parties know everything about the other case, there is an increased likelihood of settlement and a reduction of court time.
The Massachusetts Auto Insurance Policy requires mandatory binding arbitration for all Uninsured/Underinsured Motorist claims. If the parties can’t agree to settle or on an arbitrator, the Court appoints the arbitrator, to hear all motions and to hear the facts. A date is set and we appear before the Arbitrator, present our evidence, witnesses and records, and within days he/she makes a decision. There is no jury. The rules of evidence are relaxed. Before we go to arbitration or trial the procedures and what will be expected of you will be explained to you in minute detail so you will be as comfortable as possible during the arbitration/trial. It is absolutely essential that we have your cooperation in helping us gather facts about your case.
The insurance company maintains a computer database that shows all of the people who have made claims for other injuries in the past. If you have made a claim in another collision, workers’ compensation injury, or have filed a lawsuit in the past, the facts of your previous injury and the amount of your settlement will be known to the insurance company. You are, therefore, urged to be absolutely honest with us in all of your answers throughout our handling of your case. One of the most difficult things for an attorney to deal with is when it can be shown that the client made inconsistent statements or failed to disclose what appears to be relevant information.
You are responsible for all of the out-of-pocket costs. These costs are separate and distinct from the attorney’s fees for legal services. These file costs include, but are not limited to, copying costs, costs for investigating services, expert witness fees, transcript costs, postage, long distance telephone charges, facsimile charges, court filing fees, server’s charges, travel costs and expenses, and such other costs as are necessarily incurred in the proper preparation of your case.
Bailey & Burke will advance costs for copying, investigation, postage, telephone, facsimile, court filing and process server’s fees. Other costs will be incurred only after consultation with you. Although we will front your expenses for the case, we cannot ethically advance or loan money against an unrealized recovery.
The Central Massachusetts personal injury lawyers of Bailey & Burke serve clients throughout Central Massachusetts, including the cities and towns of Amherst, Ashburnham, Athol, Auburn, Barre, Berlin, Blackstone, Bolton, Boylston, Brookfield, Charlton, Clinton, Douglas, Dudley, East Brookfield, Fitchburg, Gardner, Grafton, Hardwick, Harvard, Holden, Holliston, Hopkinton, Hopedale, Hubbardston, Hudson, Lancaster, South Lancaster, Leicester, Leominster, Lowell, Lunenburg, Maynard, Marlborough, Marlboro, Mendon, Milford, Millbury, Millville, New Braintree, North Brookfield, Northborough, Northbridge, Northampton, Whitinsville, Oakham, Oxford, Paxton, Pepperell, Petersham, Phillipston, Princeton, Royalston, Rutland, Shrewsbury, Southborough, Cordaville, Southbridge, Spencer, Springfield, Sterling, Sturbridge, Fiskdale, Sutton, Templeton, Baldwinville, Upton-West Upton, Uxbridge, Warren, Webster, West Boylston, West Brookfield, Westborough, Westminster, Winchendon and Worcester.
The information contained in this website is general in nature. Each and every case we have handled is on an individual basis. If you would like the attorneys of Bailey & Burke to review your particular situation immediately, call us directly to schedule a free consultation at a time and location of your convenience.