Toff's Law

Proving Your Claim

Bodily injury claims, or personal injury claims, as they are referred to in the legal profession are claims for damages arising out of an accidental injury. The injured person (called the claimant or plaintiff), is entitled to recover special and general damages that are proximately caused by the negligence of another person or entity. Special damages (economic damages) are actual expenses such as damage to you vehicle, medical expenses, lost wages and the like. General damages (non-economic damages) are estimated damages to compensate you for past and future pain, suffering, loss of enjoyment of life, inability to engage in household and recreational activities, inconvenience and future diminished of earning capacity.

The person bringing a claim for personal injuries must prove by a preponderance of evidence that the defendant was negligent in causing the accident. The person bringing the claim must also prove by a preponderance of evidence that the injuries and damages were proximately caused by the accident. Medical expenses must be proved to a reasonable medical probability. To recover future medical expenses you must prove that the expenses are reasonably certain to occur.

Preponderance of evidence means more likely than not, in all probability or more than 50% probability. Negligence means the failure to use reasonable care to prevent harm to oneself or to others. A person can be negligent by acting or by failing to act. A person is negligent if he or she does something that a reasonably careful person would not do in the same situation, or fails to do something that a reasonably careful person would do in the same situation.

Violation of law may constitute negligence per se, or negligence on its face. (running a red light; driving faster than the posted speed limit, etc.)  Reasonable medical probability means the same as preponderance of evidence,  i.e., reasonable and more likely than not. Reasonable medical certainty means that the expenses are not merely possible, but are almost certain to occur in the future.

PERSONAL INJURY CLAIMS PROCESS

The value of your case cannot be determined until the full nature and extent of your injury is known. This cannot occur until you have completed your treatment and or reached maximal medical improvement. It takes time to gather medical and employment records, take witness statements, and obtain additional evidence. Be patient, as personal injury cases can take several months or even years to resolve, depending upon the complexity of the issues. Our office will use due diligence in reaching a fair and prompt settlement.

It may be difficult for you to remember several months from now all the details of your accident. Therefore, you should write down as many facts as you can recall at this time. You can add to your list when you remember additional facts. You should also keep track of what activities are affected by your injury and the amount of pain you are experiencing at various times. Do not show these notes to anyone.

You should keep track of your current physical complaints relating to your accident. You also need to know what activities you have been unable to perform or are hindered in performing as a result of your accident. Keep records of any expenses relating to this accident. Keep a record of all lost income or lost job opportunities as a result of this accident. Also keep track of witnesses who will be able to verify your lost income.

If Medicare or Medi-Cal pay any portion of your bills, you will have to reimburse them out of your recovery. If your health insurance or auto insurance pays your medical expenses, you will probably also have to repay these providers out of your settlement.

Normally, the defendant is not obligated to pay any money to you until the case is settled. Once your case is settled, you cannot get any more money, even if your condition should worsen. Therefore, it is important not to evaluate your monetary damages until you reach maximum recovery.

IF YOU ARE INVOLVED IN A VEHICLE ACCIDENT

The California Vehicle Code requires that any person injured in an accident must file a claim with the Department of Motor Vehicles. The DMV will then request that each of the drivers provide proof of liability insurance. In the event that a driver does not have insurance, his/her license will be suspended. Furthermore, any motorist who does not carry liability insurance will be precluded from recovery general damages, even if the uninsured motorist is not at fault. You should, therefore, immediately go to the DMV office and complete a claim form.

Do not discuss the facts of this case with anyone other than your immediate family. Write down every specific detail of the accident that you can recall. (specific times, weather, distances, point you first spotted the other vehicle, speeds, actions, sounds, skid marks, discussions at the scene, admissions of liability, location and extent of property damage, actions, reactions, etc. etc. etc.]  This information may play a crucial role in your case one or more years down the line when the facts will be much more hazy in your mind.

TIME LIMITATIONS

You have only two years from the date of the accident in which to file a civil lawsuit. After that time, you will be forever precluded from bringing a claim for injuries or damages. If a governmental or public agency is responsible for this accident, (State of CA, Caltrans, School District, government worker, City, County, etc.) you must file a claim against that governmental entity within six months from the date of the accident. Failure to file a claim within the statutory time limit will most likely result in your forever being precluded from bringing a claim for injuries or damages against that governmental entity.

If you were injured while engaged in the course and scope of our employment, in addition to filing a civil action against the person or entity responsible for your injury, you can also file a workers’ compensation claim within one year from the date of the accident.

REMEDIES

If you have been injured as a result of the negligence of someone else, you have a right to file a civil lawsuit in the county where the accident occurred or in the county where  the defendant resides.  Your lawsuit will seek both general and special damages in an unspecified amount within the jurisdiction of the court. You are entitled to recover damages proximately caused by the other person’s negligence.

A non injured spouse has a legal right to file a separate lawsuit loss of consortium which results directly from the injury to their spouse. Loss of consortium is the loss of love, companionship, comfort, care, assistance, protection, affection, society, sex and moral support. However, rarely is a separate consortium claim filed unless you have suffered severe or catastrophic injury.  You are entitled to recover your own general damages which includes pain, suffering and loss of enjoyment of life and family. Therefore, in most cases, a loss of consortium claim would be duplicative of your own damages.

In certain situations, it may be prudent to pursue your claim in small claims court instead of a regular lawsuit. If the potential value of your recover is less than the $7,500 small claims court limits, you may save time and effort by pursuing the claim on your own.  However, certainly you should talk to an attorney before proceeding with a small claims action.

Small Claims Court is a fast, inexpensive procedure to resolve claims. There will be no depositions, no interrogatory questions to answer, no defense medical evaluation and no jury trial. You will incur a $75 filing fee and a fee of $10 per defendant in order to have the court serve each defendant by certified mail. You will not have to pay any attorneys’ fees, nor incur additional court costs.

After filing your claim in small claims court, a hearing date will be set up by the court. At that time, you can provide copies of your medical records and bills and present your side of the case. A judge will decide how much money, if any, the other driver should pay you. Neither party can be represented by an attorney in small claims court. If the judge awards you damages, you can send the judgment to the defendant’s insurance company for payment.

Prior to filing a small claims action, you are required to send a written request to the defendant to pay you the amount of damages you are seeking. Just like a regular lawsuit, your small claims complaint must be filed within two years from the date of your accident.

If you have any questions about your case, please contact us at toffslaw@yahoo.com.