Auto Accidents

A San Diego Motor Vehicle Accident Attorney Answers Frequently Asked Questions

What should I do at the scene of the auto accident?
Report the accident to the police. If there is anyone injured in the accident, make sure you tell that to the police. They often won't respond unless someone is any injured in the auto accident (car accident or other motor vehicle accident). You can't force them to respond. Even if they do respond, they won't always make a determined effort to thoroughly investigate your auto accident. If the police do respond, be cooperative and courteous with the officers. Make sure they accurately record any statement you make about the auto accident - you can ask them to repeat what you've told him. Make your statement regarding the auto accident in the presence of witnesses if possible - if the officer makes a mistake, you'll have someone to verify what you told them.

Talk to any witnesses (including passengers in other vehicles). Make sure you know how to contact them - get their names and numbers, and find out what they saw.

Find out any information you can about the person(s) responsible for the accident, and anyone else involved. If you are too hurt to gather information yourself, have someone else present (such as one of your passengers) do it for you.

Always get the other driver's name and address. Ask to see their driver's license to verify this information. Find out who their insurance company is, and check their insurance information (usually a card, or papers they keep in the car). They are supposed to have this on hand in case they get into an accident. and whether they own their vehicle. If someone else owns their vehicle, find out who they are, and who their insurance company is. Even if you're sure who the driver who caused the accident was, get this information for everyone who

Take pictures at the scene where they will help show what happened. What positions were the cars in after the accident? What damage was done to each vehicle? As we stated in our "being prepared" section, if you don't have a camera phone, keep a disposable camera in your car. Each picture may be worth a thousand words later on.

What kinds of auto insurance are available and how do they work?
Insurance is often a question of budget, but unlike many other expenses, insurance gives something in return when needed. Anyone who drives the freeways - in Southern California or elsewhere - knows how easy it is to get in an accident. You might be careful, but what about everyone else? Having adequate automobile insurance is not only required by law in most jurisdictions, but is also one of the smartest decisions you can make to protect yourself and your family if you are involved in an accident.

Automobile Liability Insurance

Most jurisdictions require you to carry certain minimum liability limits (see "Policy Limits"). This insurance is meant only to protect persons injured as a result of your negligence. For example, in California, you are required to carry at least $15,000.00/$30,000.00 bodily injury liability limits and $5,000.00 in property damage limits.

If someone who claims to be injured by your negligence makes a claim against you, or informs you of their intention to do so, present it to the insurance company. Their adjusters (and, if necessary, their attorneys later on) have a responsibility to work in your defense.

Many people are afraid to use their liability insurance coverage for fear of their rates increasing. Given that the injuries sustained in some auto accidents could bankrupt an average family, and given that you have paid money for this coverage for years, it almost never makes sense for anyone to fail to take advantage of their auto liability coverage where it is available.

You should also be aware that many people believe they have "full coverage" insurance when in fact all they have is liability - check your documents, talk to your agent, find out what each of the coverages discussed here might cost you, and how you can benefit from them. Don't just assume you have good coverage - make the effort to make sure of it.

Uninsured and Under Insured Motorist Insurance

With the huge number of uninsured drivers on the road, uninsured motorist (UM) coverage is a practical necessity. You should carry the maximum amount of uninsured motorist bodily injury coverage (UM-BI) (equal to than that of your liability coverage) and uninsured property damage (UM-PD) equal to the market value of your car. The greatest typical increase in premium from liability-only to uninsured motorist is in getting the uninsured coverage in the first place – upping your policy limit usually costs proportionately less than getting the coverage in the first place -- so it doesn't make sense to carry less than the full available bodily injury limit.

A crucial benefit of uninsured motorist coverage is that where the amount of your policy limits exceed that of an insured at-fault driver, it is considered "under insured" motorist coverage as well. This pays you as if the driver at fault had limits as high as your own. Given the multitude of minimally-insured drivers on the road, this can make a huge difference in how an accident impacts your life and your family.

Medical Payment Coverage

Medical payment coverage (med-pay) is a no-fault coverage which will pay your reasonable and necessary medical expenses regardless of who was at fault in the accident. Note that what expenses are "reasonable and necessary" is first decided by the insurance company - don't assume that because you have X dollars in bills that they will automatically pay that amount. In fact, insurance companies quite often refuse to pay substantial portions of medical pay injury claims because they claim the bills aren't reasonable or the treatment wasn't necessary. In a dispute, the issue of what should be paid would need to be settled by the courts, and many times the costs of litigation would outweigh the chances that the insured would prevail and receive more benefits. The main thing to keep in mind is that just because you have some set amount of medical pay limits (e.g. $10,000.00) does not mean that the company will be willing to pay that amount in medical pay benefits -at least not without a fight.

What do my policy limits mean and how do they affect my case?
Each coverage on your auto insurance policy has a policy limit - a maximum amount of money that the insurer will pay on a given claim. For bodily injury claims, this is typically a double number such as $15,000.00/$30,000.00 - the lower number is the maximum they will pay for any one person's claim, and the second number is the maximum they will pay per incident regardless of how many people make claims.

What is the difference between liability and no-fault insurance coverages?
Basic liability coverage is available to anyone harmed by you as a result of your negligence in an auto accident, with certain exclusions such as members of your own household. Uninsured motorist coverage is a liability coverage, but it covers you for situations where you were injured by the negligence of someone who had no insurance or inadequate insurance. Your uninsured motorist limits essentially operate as if the uninsured or under insured person had a liability policy as large as your uninsured limits.

Medical payment and comprehensive/collision are "no-fault" coverages - they are available to you regardless of who was at fault in the accident. They are very important coverages to have, insuring that no matter what disputes there might be as to liability (see "Liability Investigation") and how long the investigation might take, you will still be covered for your medical bills or property damage immediately. Without these coverages, your car repairs can take weeks to begin, and you might have to delay needed medical care. You should carry comprehensive and collision coverage equal to the value of your vehicle, and medical payments coverage in the largest amount you can afford.

How does comprehensive and collision coverage work?
Comprehensive/collision is a no-fault coverage that pays for damages to your vehicle as a result of an accident regardless of who was legally responsible for those damages. In most instances, using your own comprehensive/collision coverage is preferable to relying on the responsible persons insurance. First, even if the responsible person has insurance, their carrier can take weeks to make a decision about who was at fault (see "Liability Investigation") - during that time, they will not typically pay you for any repairs, towing, storage or rental car expenses. Secondly, your insurance company owes you a duty of good faith and fair dealing in handling your repair (see "Good Faith and Bad Faith"). As such, they are more likely (though not certain) to treat you fairly in paying your property damage claim, with faster, more friendly service and better payouts.

What is rental car coverage and how does it work?
Rental car coverage in your own policy is a specific coverage that must typically be separately purchased - it is not included in most property damage coverage such as comprehensive and collision. It typically covers you for a short period of time (e.g. 14 days) and has a limit on how much will be paid for a rental. Car repairs can take weeks to complete even under your own comprehensive and collision coverage. It can take even longer for the responsible person's insurance carrier to accept fault under their own liability coverage and start picking up the tab for your rental and repairs. This coverage will save you hundreds of dollars even over a couple of weeks should you find yourself in this situation.

What does "collision deductible waiver" mean?
This is an additional coverage which will reimburse you for your comprehensive/collision deductible if you were not at fault in an accident. Again, given the advantages to using your own collision coverage over the liability coverage of the responsible person, obtaining this coverage is to your advantage, particularly where you have a high deductible.

What happens if I don't have auto insurance?
If you are injured in an auto accident in many jurisdictions, you cannot recover damages for your pain and suffering ("general" damages) - for instance, in California, if you don't have minimum liability coverage on the vehicle you're driving – regardless of whether the accident was your fault or how badly you are injured, you can collect only your bills, lost wages and property damage - your out-of-pocket ("special") damages. There are certain exceptions to this rule, for example, if the defendant driver was drunk at the time of the auto accident (car accident or motor vehicle accident) Some insurance companies claim this applies even if you are a passenger in your spouse's car. General damages are a substantial portion the value of a personal case - sometimes the largest portion.

How do the insurance companies investigate an auto accident and determine who is at fault in a car accident?
Once an auto accident has been reported, each involved insurance company will make a determination on who they believe to be at fault. This will be based on the statement of their insured, the statements of the other persons involved in the accident, police reports and the physical evidence from the scene (such as damage to cars, skid marks, etc...)

Note that each insurance company will not make payments toward your repairs, rental car, etc... until they have made a determination as to liability. If they have trouble with obtaining statements from an uncooperative driver or other evidence, there can be a substantial delay in payment. This is one of the main reasons why we recommend that you use your own comprehensive and collision and rental coverage to cover your vehicle repairs and replacement vehicle during the repair process if there is any delay by the defendant insurance company. If liability is resolved in your favor, then the defendant's insurance company will reimburse your insurance for what was paid out to repair your car, your rental and your towing expenses.

You will most often be asked to give a recorded statement regarding what happened in the accident. You should retain counsel before you give a recorded statement, as what you say in this statement will affect the rest of your case.

You will be asked to give a detailed description of how the accident occurred and who was involved along with detailing any injuries and other damages you've suffered, such as car damage, lost wages and medical bills.

Based on the evidence, each company will make a decision as to what percentage of fault they believe each driver had. The value they are willing to offer for your claim will be reduced by the percentage of fault they apportion to you. For example, if they believed your claim was worth $10,000.00 but found you 20% at fault, the most they would be willing to offer you to settle would be $8,000.00 (80% of $10,000.00).

What if the insurance company is wrong about who's at fault?
Insurance companies give great weight to their own insured's statements, even over the other drivers and the police report's conclusions. When you disagree with the insurance company's fault determination, you have a "liability issue" in your case.

Remember that the important thing is not the percentage of fault they find for you, but how much money they're willing to offer. Even if they believe you are significantly at fault, a skilled San Diego motor vehicle accident attorney can often work out a settlement which will still put a fair amount of money in your pocket regardless of a liability issue.

Of course, if such a settlement can't be reached, the liability issue must be worked out in litigation.

What happens in an auto accident lawsuit?
If no compromise settlement can be reached in your auto accident claim, you will need to file a lawsuit to begin the litigation process. This puts the defendant(s) on notice that you intend to pursue your claim in the courts. Your San Diego motor vehicle accident attorney will file a formal written Complaint with the proper court (which depends on the location, type of case and amounts sought, among other things). The Complaint is then served on the defendant (typically by delivery through an attorney process service).

The defendant has a specific time (typically 30 days) in which to file an Answer to the Complaint (a formal written document typically denying all allegations made in the Complaint). Once this is done, the "discovery" process begins, typically with written "discovery" requests. These essentially tell the defense attorneys what you contend their client did wrong, what damages you are claiming for your injury and what evidence you will be presenting if your case goes to trial. All of your answers to written discovery are sworn under penalty of perjury just like testimony at trial. After written discovery has begun, your deposition will typically be taken. A deposition is essentially testifying without the judge present. They are typically held in one of the attorney's offices, usually your attorney's office for your own deposition.

Typically after your deposition is conducted, you will be scheduled for an "Independent" Medical Exam (IME). This is the procedure by which the defendant has you examined by one or more of medical or other professionals of their choosing. As you might suspect when they get to chose the doctor you see, there is nothing "independent" about the examination. For this reason, many plaintiff's attorneys more accurately refer to them as DME's ("Defense" Medical Examinations).

At any time during this process, the parties may agree to enter into mediation. A mediation is an informal process which is essentially an in-person (sometimes face-to-face) settlement negotiation. The person conducting the mediation (the mediator) is most often an experienced trial attorney or retired judge who has developed a specialty in conducting mediations. They do not make decisions regarding your case. The mediator is there to help persuade each side to reach a mutual compromise agreement. While not every case settles at mediation, most attorneys and mediators will agree that in a majority of cases, mediation is your best opportunity to reach a fair compromise settlement between the parties, particularly in cases with difficult issues of liability, damages or other hurdles.

What should I do about medical care following my auto accident?
Often in car accidents, you are so shocked and dazed from the accident that you may not notice you are hurt until sometime later, when the initial shock wears off. If there is a any question of injury, go to the hospital or see a doctor right away.

When you first see a doctor, give them a complete and accurate account of all of your symptoms, and make sure that the medical provider has accurately recorded what you said. When the doctor asks you what problems you are having, make sure you tell him about all of your symptoms, not just the ones you think he's most interested in, or the ones you think are relevant to his specialty. Make sure the doctor is aware of any past medical conditions or injuries which may relate to your present complaints in any way. Don't minimize your injuries. Remember that the doctor is there to help and they cannot do so if they don't have an accurate idea of what is wrong.

If you have a San Diego motor vehicle accident attorney, doctors may be willing to treat your injury on a lien basis, which means the doctor will wait until the case settles to get paid.

How do you go about settling an auto accident case?
Typically, auto accident cases settle in two stages – property damage settlement first, then the bodily injury settlement sometime later.

Property damage settles first because the damages to your car are an immediately-determinable figure which can be taken from a repair estimate or total loss evaluation. The bodily injury portion of your claim will typically settle later. The liable party's auto insurance company will only make a settlement offer based on damages that can be proven through evidence, and they will almost never offer anything open-ended, like paying for future medical treatment "if you need it." Once you accept a settlement offer, that is all you will receive, period, ever. Because of this, it is typical to wait until you have reached a permanent and stationary status (the maximum amount of medical care that will benefit you) before making a bodily injury settlement demand.

The symptoms you suffer after an accident can stem from more serious underlying injuries than simple whiplash, sprain or strain. Persistent pain, numbness, tingling, weakness in hands, etc... can indicate spinal injury or vertebral disc problems which may require surgery. If you settle your claim prematurely, the costs of such future care will come out of your pocket. Once again, if you accept a bodily injury settlement, in almost every instance that will be all of the money you will ever receive. Insurance companies make such settlements to "buy their insured's peace" – they and their insured(s) will never again need to be concerned with you after you settle with them. So you should make doubly certain that you know what the extent of your injuries are and how much medical care you may need in the future before you consider settling a bodily injury claim.

Of course, you can always settle a case at any time by accepting what money is on the table, but once again, if you have problems down the road after settling, in the vast majority of cases, you will not be able to recover for those problems. Most insurers won't even consider "open-ended" settlements.

The advice of an experienced San Diego motor vehicle accident attorney is vital in determining when you should present your demand, how it should be presented, and how much you should ask for.

As previously discussed, your settlement demand is typically made once you have reached a permanent and stationary status with your medical care (you've had all the care that your doctors believe will benefit you). At this point, your physicians have a good idea of any future medical care you might need (e.g. maintenance visits for residual pain you may suffer in the future, possible surgery or other complications that might arise in the future), what sort of limitations you may have in the future (e.g. limits on how much weight you can lift or activities you should not perform, like climbing stairs, contact sports, etc... depending on the nature of your particular injury), and how this will affect your earning capacity in the future (job changes, jobs you can no longer perform, etc...)
For complex cases, many of these issues may be determined in consultation with other experts such as vocational rehabilitation experts and economists.

Once your prognosis for future problems, limitations and economic losses are determined, you and your San Diego motor vehicle accident attorney, in consultation with the involved doctors and other experts, can present a settlement demand representing a lump sum of money which is intended to compensate you for all losses stemming from your accident.

Settlement is a negotiation process in which the responsible party's insurance company presents an offer that is lower than what they are ultimately willing to pay you, and your demand is a figure higher than that which you will eventually accept. This is why your settlement demand amount is somewhat higher than the actual amount you are willing to settle for. Likewise, you should always keep in mind that the figure you're being offered by the insurance company is often substantially lower than the actual realistic value of your claim.

In settlement negotiations, each side presents an offer to settle (your "offer" is typically referred to as a "demand"). They explain to the other side the reasons why they believe that is a fair and legitimate offer which accurately reflects what each side might hope to achieve if the case went to trial. The other side presents its own opinions and makes a "counter-offer" based on a) what their own minimum/maximum values for the case are and b) how convincing the other side's arguments are.

As you can see, being represented by an experienced San Diego auto accident attorney is vital in evaluating what your demand amount should be, what you should ultimately accept for settlement, and how your demands should be presented. Keep in mind that auto insurance adjustors have typically handled hundreds or thousands of auto accident claims, and their position is a composite of the expertise of the individual adjustors and many other claims professionals within their company. With that sort of expertise arrayed against you, you need someone on your side with similar experience to determine what you can realistically expect, and to explain why a given figure should or should not be accepted. Furthermore, the ability of your San Diego motor vehicle accident attorney to effectively litigate your motor vehicle accident makes it far more likely that the defendant's insurance company will make a serious attempt to settle your accident injury claim.

What you settle for is always your ultimate decision. Your auto accident attorney doesn't decide what you should take, they simply advise you as to their opinion of what you should (or shouldn't) accept, and why they believe so. You must make up your own mind. That being said, however, you should keep in mind that one of the main benefits of having an attorney is their superior experience and expertise. In deciding what to accept, keep an open mind. Don't think of a number that you believe to be "fair", or base your opinion on solely on the advice of friends, relatives, etc... who have had their own injury claims. Each case is different, and your San Diego motor vehicle accident attorney will know more about your accident injury case than laymen who might offer you advice.

What happens if the claim doesn't settle?
If your auto accident claim cannot be settled in the normal offer-demand settlement negotiation process, the next step in most cases is litigation (filing a lawsuit against the responsible driver(s)). Another alternative is mediation. Typically, however, most insurance companies will want to litigate the case for some time before agreeing to mediation.

Litigation is the stage at which you will most often begin to incur significant out-of-pocket costs in your claim, such as the filing fee. For example, the filing fee for a case in which more than $25,000.00 (twenty five thousand dollars) is sought is presently $320.00 (three hundred twenty dollars). As your case proceeds in litigation, other costs, like expert witness fees, may be incurred. These costs, which your attorney will explain in detail, are one reason why settlement offers should be carefully considered even where you might not be satisfied with the amounts – litigation is a costly, time-consuming and slow process. You aren't often able to recoup all of those costs as part of your verdict even if you win at trial, and you can even more rarely recover any of the value of your time in litigation (such as time off from work for depositions, mediation or trial, etc...).

Even so, you can still settle your claim at any point during the litigation process if settlement negotiations remain open. The vast majority of auto accident claims are resolved by settlement either pre-litigation or during litigation. Only a very small percentage of auto accident cases actually go to a jury, so the fact that you file suit does not necessarily mean that you must go to trial.

What does the insurance company have to pay for damage to my car?
Damage to your car or other personal property damaged in the auto accident is referred to as your "property damage." (PD) This claim is typically settled well before your other main claim for "bodily injuries." (BI)

If the defendant claims you were wholly at fault in the accident, even if they are lying through their teeth, their insurance company will not usually be willing to pay on your vehicle. Short of that, they will reduce any amount they're willing to pay according to what they think your portion of blame was for the accident (for example, if they claim you were going too fast, they may offer to pay only 80% of the value of your claim under the principle of "comparative negligence").

The more well-documented your car's condition and value is, the better your chances are to receive fair compensation for property damage. If there is prior damage to your car, make sure it is documented through a reputable shop. Insurers often claim that accident-related damage was in fact prior damage, and unless you can prove otherwise, you will find it difficult to prove otherwise. Remember, the burden of proof is always yours. If you have custom work or high-value accessories, they should be documented through an established auto shop as well. Just pointing things out in a visual inspection isn't enough. The people who make the decisions about what to pay you for your car spend much more time looking at paper than they do looking at cars. Give them paper. Otherwise, they'll be valuing your car by looking at a few photos, regardless of what you tell them.

Be aware that the insurance company doesn't have to follow "Blue Book" or other standard values. The only thing they pay is either what they're willing to pay you or what you win from them in a lawsuit. They use their own companies to value vehicles, and those values are typically lower than independent sources like Blue Book. Insurers have lost major lawsuits for using these companies to undervalue claims, but they remain the industry standard.

In a total loss claim (a claim where the cost of repairs exceeds the value of your car), the defendant's insurer is required to pay you the market value of your vehicle. If your vehicle isn't totaled, they are required to pay either the costs of repair or the amount of diminished value of the vehicle. This is regardless of whether you actually have repairs done, but the insurer typically relies on repair estimates to determine how much to pay you. You should get estimates even where you don't want to repair the vehicle to help establish the value of your claim.

What is "loss of use"?
The responsible person's insurance is obligated to reimburse you for the reasonable rental value of your vehicle while it is being repaired or until they have compensated you for the total loss. Often they will simply offer to pay for a replacement rental car during this period, but they are reluctant to let this go for more than a number of days regardless of the reason for any delays.

By contrast, your insurance company is not typically obligated to provide you with a rental vehicle unless you have specifically purchased rental car insurance, a separate coverage from your comprehensive/collision insurance.

What should I do to be prepared for an auto accident if it happens?
Most people aren't prepared when they suffer an accident injury. This puts them at a big disadvantage. There are a few simple things you can do to help yourself and your family later on.

Make sure you have sufficient insurance coverage, and make sure your insurance is currently in force. Complete application and renewal documents, pay your premiums promptly. Be absolutely honest and disclose in full all information requested for an application or renewal.

If you don't have a picture-capable cell phone, keep a disposable camera in your car or truck. Photos taken at the scene of an accident can be a great help later on. This applies to any kind of injury case, not just auto accidents. As our section on the accident scene spells out, pictures can be of help in any kind of case.

Above and beyond everything else, know what information you'll want to gather and what steps to take when the accident happens.

What happens if I go to trial in my auto accident case?
Trial is a complex process which would take several volumes to explain in detail. The following is but a thumbnail sketch of the process.

The typical trial in an auto accident case will last 3-5 days. You will need to be present at trial each day it is in session.

The first step in trial is jury selection. Your attorney will have a chance to briefly interview prospective jurors based on responses they have provided to the court regarding their ability to objectively make a determination in your case. The number of jurors varies with jurisdictions, with California seating 12 jurors for a civil trial.

Once jury selection is completed, the attorneys for each side will make opening statements which summarize each side's position in the case.

The plaintiff typically presents their case first. You will testify as to what happened in your accident, what your injuries were and the effect those injuries have had on you. Your expert witnesses – e.g. accident reconstructionists, medical doctors, vocational rehabilitation experts, economists, etc.. - then testify as to the details of your in their specialties.

For each person on the stand, the attorney presenting that testimony will first perform "direct examination" – the initial round of questions from the side calling the witness. Each of the other parties then "cross-examine" the witness. If needed, the side calling the witness then follows with "re-direct examination" questions, usually to clarify any issues raised in the cross-examination.

Throughout the course of testimony, documentary evidence may be presented to the jury, along with written discovery responses and excerpts from deposition transcripts. Demonstrative evidence and exhibits may also be used (such as videos of a typical "day in the life" of the plaintiff, surveillance tapes, accident reconstruction demonstrations, etc...).

Once each side has presented its evidence, each of their counsel will make a closing argument to the jury summing up what they believe has been proven or not proven. The case is then submitted to the jury for deliberation.

The jury follows an extensive set of written jury instructions provided to them by the court. The judge will also orally instruct jurors on these instructions where they request it.

Rules at to the level of proof required and what number of jurors must be satisfied with that proof vary from state to state. In California, for most injury claims, a plaintiff must prove their case to a "preponderance of the evidence" (more than 50% likelihood – more likely than not) to at least 9 of 12 jurors.

The jurors then return to the court with their verdict, which is presented to each side.

If any side is not satisfied with the verdict, they may appeal.