1. By checking for witnesses, won’t the insurance companies think that you were planning to make the accident a payday from the beginning?”

You know, it’s a very good question. I think that may have been true 30-40-50 years ago. But in today’s world, everybody’s pretty cautious, everybody’s looking for witnesses. Even if you’re not injured at all but there is $4,000 or $5,000 worth of damage to your car, the insurance company is going to assume that you’re going to want people to support you.

I’ve never had that experience. But let’s assume for example that that is a concern, or that one out of ten insurance adjustors is thinking, “oh, this person is trying to make this into a payday.”

What I would offset against that in my own mind is, let’s say they think that but let’s say that if you never found that witness, then the accident would end up being a he-said-she-said.  Whereas if you have the independent witness who says, “I saw it clearly and there’s no question about who ran the red light,” regardless of what the insurance adjuster thinks about your motivation, they also realize is here’s what really happened, we have an independent witness.

The other thing about a payday is paydays don’t work in my experience. In other words, if there’s a minor bump to a vehicle and there’s very little property damage and someone is claiming two years later, “my back is killing me,” the insurance company won’t believe it; a jury probably won’t believe it. Except in a rare case, let’s say someone who had a weakened back from a prior operation.

Conversely, if the impact is enormous, if you’re thrown out of the car, you have broken bones, or a concussion, nobody really is going to say you’re trying to make it in to a pay day, it’s going to be pretty clear. I think most people know whether the other person involved has a serious injury or a non-serious injury. But very good question, and one I appreciate. And if the questioner wants to follow up on that, just go ahead and put it back in the question box and I’ll be happy to keep discussing that issue.

 

2. If someone has been drinking, although they haven’t drank enough to be legally intoxicated if they get into an accident, does that affect whether they are at fault?”

Very good question and the answer is: yes, it does affect whether or not they are at fault. Different states have different blood alcohol levels for the legal limit. Many states have a blood alcohol level that they set at 0.08; some at 0.1. Let’s say that a person is at one half of that limit, which means maybe they just had a beer. Clearly nothing illegal criminally, however, it has a very distinct effect on the civil case, meaning the non-criminal personal injury case.

The jury will hear about it, the judge will hear about it, the other insurance company will hear about it. And if there’s a dispute, for instance, as to who ran the red light and there are no witnesses, typically the assumption is going to be made that the person who had a beer is less likely to have noticed whether the light was green or red than the other person.

3. You talked a lot about what to do with the police, how do you know whether or not you should even call the police in the first place?

That’s a very good question. My suggestion is: if it’s a very minor accident, if you don’t want it to go on your record, the other person doesn’t want it to go on their record, everybody is trustworthy, that might be a reason not to call the police because in most states, even if an accident is not your fault, if you run your Department of Motor Vehicle[s] record six months later, it may not show a ticket for a violation, but it will show that you’ve been in an accident and that is not useful in terms of insurance rates.

So if it’s minor, nobody’s hurt and nothing bad is going to happen, I would say use your judgment and you and the other person may agree not to call the police. On the other hand, if you think the other person is going to be dishonest about what happened, then I think it’s important to call the police. If anyone’s injured, either you or the other person, it’s important to call the police. And what I mean by injured, not just a sore neck, is a significant injury. That is a judgment call. I personally would tend to call the police most of the time, but I know other people disagree and it’s really a personal decision.

4. I was in a bad accident last week and spent the night in the hospital. The driver of the other car does not have insurance. How can I expect this to play out in terms of getting reimbursed in terms of the money that has been spent?

Hopefully, on your own insurance policy you have uninsured motorist coverage. I would say probably 80% of the people who I represent have uninsured motorist coverage. And you probably also have something called medical payments coverage. So let’s say that you have health insurance through Blue Cross Blue Shield Health Net, they’ll probably pay 80 to 90 percent of your medical bills. Then if you have the typical medical payments coverage on your own automobile insurance, which is anywhere from $1,000 to $5,000 you can get that from your own insurance company and use that to take care of your co-payments and use that to take care of your deductible. You are still entitled to be compensated for time off of work, pain and suffering etc. Check with your insurance company, if you are in the most likely 80%, you do have uninsured motorist coverage, your own insurance company either by doing it on your own or through a lawyer will make a claims payment to you under your uninsured motorist coverage and they will go after the uninsured person to collect whatever they paid out to you. Normally they won’t be able to collect but they try. Whether they do or whether they don’t does not affect your recovery, whether you buy that particular type of coverage for your insurance company to cover it.

5. I hit another car at an intersection, I was driving. It was my fault, however, I wasn’t driving that fast and the passengers in the other car who were hit were not wearing their seatbelts. Are they at all responsible?”

They are responsible. In every state in the United States, almost every state, there is what’s called comparative negligence. Sure, they’re responsible for your mistake, but they are responsible for not wearing their seat belt so typically the award they would have gotten will be reduced anywhere between 15% and 75% depending on the nature of the injury.

For instance, if it’s a back or neck injury, it may be that it would have been similar with or without a seat belt. But to give another example, if they flew forward and broke their nose on the windshield they’ll get a very small recovery because that could have been prevented specifically by wearing a seat belt. You wouldn’t be absolved of all fault, but they would take some of the responsibility.

6. I was at a stop sign and accidentally rolled forward and hit the car in front of me. We all got out of the car, exchanged information and everyone seemed okay. A few days later we heard that they were actually now claiming that someone was hurt in the accident due to the stress that was caused. There was an elderly passenger in the back seat. Where is all this coming from and what should I do about this?

If by saying “rolled into another car at a stop sign” it means that they were hit at one or two miles an hour, typically your insurance company (who I’m sure is handling this for you) is going to be pretty skeptical of a claim three weeks later by someone who wasn’t hurt at all is hurt now.

However, when I heard in the question that it was an elderly person, this does occasionally happen, that an elderly person has a reaction either physical or emotional that a person of a younger age would not have. The good news is that it seems to me that if you heard this you heard it from your insurance company. They’re very expert at taking care of these things. I would guess that your insurance company would be fair with legitimate claims but would be tough with cooked-up claims or to quote someone from an earlier question, someone “trying to make a payday.” It’s good to have insurance, good to have adequate limits–you can sleep at night and say to yourself, “wherever I bought insurance they will take care of it.”

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Andy Gillin

Andy Gillin received his Bachelor’s Degree from the University of California at Berkeley and his law degree from the University of Chicago. He is the managing partner of GJEL Accident Attorneys and has written and lectured in the field of plaintiffs’ personal injury law for numerous organizations. Andy is a highly recognized wrongful death lawyer in California.