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Auto Accident Blog

Case Study Part III: The Wife

Thursday, December 30, 2010

The wife’s case was a bit more difficult than the husband’s. Although she felt pain immediately in her neck and shoulder, she did not go to the emergency. When the pain increased the following day, she figured Advil and hot showers would be sufficient. After about two or three weeks, she decided that she should see a doctor. She contacted a local orthopedist and scheduled an appointment for the following week. The doctor noted pain in her neck and shoulder and diagnosed her with a sprain/strain and an impingement of her shoulder (inflammation in the rotator cuff of the shoulder). She underwent physical therapy, but did not improve quickly.

After treating about a month of physical therapy, the wife had a second accident. She was stopped in traffic and was rear ended. The property damage was not severe, but the wife was thrown forward and backward and suffered a worsening of her prior injury.

The wife went to the emergency room that night due to the pain and to the orthopedist the following day. The doctor confirmed that there was no new damage but that the second accident exacerbated the first. The wife required months of physical therapy.

Once the wife was better, the time came to send demand packages to the insurers. I obtained a written opinion from the treating orthopedist explaining which accident was responsible for which part of the wife’s injury. The wife was able to settle part of her claim initially, but I had file a lawsuit to force the insurance company to pay her for the second part of her injury.

As often happens with insurance companies, once the lawsuit was filed, they came to their senses and we were able to settle the case. The insurance company raised two major defenses against the wife. The easy one, was the second defense, that she had a second injury and that cut off any liability relating to the first accident. This was not in the wife’s control, she did not ask to be rear-ended. However, the first defense, and a very common defense used by insurance companies was that the wife did not seek treatment for the first injury until almost four weeks had passed and therefore she obviously was not really injured in the crash.

For non-life-threatening injuries many people do not go to the emergency room, but if you do not, the insurance company will conclude that you are not injured. Further, many people self treat for a week or have to wait over a week to get an appointment with a doctor. Again, the insurance companies cite these “gaps” in treatment or delays in treatment when denying claims. The wife should have gone to the emergency room and should have seen the orthopedist sooner. As a result, her case took a year longer than the husband’s. In the end, however, I obtained good results for both the husband and the wife.

By Craig I. Meyers, Esq.

What To Do In The Event Of A Crash

Thursday, December 30, 2010
  1. Check for life threatening injuries. This includes you, your passengers, and the other vehicle. Call 911 if anyone requires emergency assistance.
  2. Make sure you are in a safe location. Pull off to the shoulder, or walk to an area of safety. Do not remain with your vehicle if it is not safe to do so, but do not go too far.
  3. Call 911 if you have not done so already. You should note that if no one is complaining of injuries and the vehicles are functional, the police may refuse to respond. But, you should still call. If you truly believe you need their assistance, don’t be afraid to demand it. But, be prepared to wait.
  4. Identify witnesses. Sometimes people witness accidents and do not give you their information. If there are vehicles in the immediate area and you believe someone witnessed the crash, get their information. If they refuse, take down their license plate numbers. Your attorney can run the tag and locate them later.
  5. Exchange your information including name, address, and insurance information.Do not forget to take down the make, model, and license plate number of the other car.
  6. Do not admit fault. This may seem to go against what your parents taught you, but your understanding of the law may be incorrect. You should not admit fault if you are not truly at fault for the collision. If it turns out that the collision was your fault, then you and your insurance company can take responsibility later, but only after analyzing the facts and applying the law. A common example is as follows: A driver is travelling on a through highway at 40 mph in a 30 mph zone. He is clearly and intentionally exceeding the speed limit. A vehicle with a stop sign attempts to cross the through highway and would have made it across if the speeding driver had been traveling slower, but instead, the two vehicles collide. The speeding driver may feel responsible and may wish to apologize for the collision. BUT, under Maryland law, the speeding driver had the right-of-way and was not at fault, even though he was speeding. Do not admit fault until you are sure you really are.
  7. Take photographs. Use your camera or cell phone to take photographs of the scene, witness vehicles, and the crash vehicles, especially if they have not been moved.
  8. Seek medical help. If you are injured go to the emergency room. Go by ambulance if necessary. If you go home and realize you need medical care, it is not too late to go to the emergency room. Go.
  9. Contact your attorney. We are here to help. Don’t make a mistake early on that you cannot fix later. These mistakes include giving recorded statements, talking to people you shouldn’t talk to, and accidently disposing of evidence. Don’t do it, call us.
  10. Contact your insurance company. But, DO NOT give a recorded statement to any insurance company until you have contacted your attorney. DO NOT speak with the other driver’s insurer unless you have first discussed it with your attorney.

By Craig I. Meyers, Esq.

What Should You Do If Your PIP Is Denied?

Thursday, December 30, 2010

First, you should have an attorney that focuses their practice on personal injury cases. You need someone who is up to date on autombile insurance.

The insurance companies and your agent are sloppy when it comes to PIP waivers. The waiver must be in 10 point font, certain sections must be bolded, it must have certain information, and it must list the cost of the coverage with and without PIP. Probably a dozen times this year, I have received a letter from a client’s insurance company telling me there is no PIP due to a waiver. The first thing I do is request a copy of the waiver. If they cannot produce the waiver, then the client is entitled to PIP coverage in the amount of $2,500, even if they have not paid for it. Second, I compare the waiver to the statute. You would be surprised how many times the cost of the coverage is not listed. The result is $2,500 in PIP coverage. Finally, if the provisions of the law are not listed, you guessed it, PIP coverage.

I had an adjustor tell me it was wrong for me to obtain PIP coverage for a client who did not pay for it, but she did not understand the law. The PIP waiver law is a consumer protection law. The provisions of the law are there so that consumers of automobile insurance can make an educated decision about whether they wish to purchase PIP coverage. If the insurer does not give the consumer the minimum amount of information required by law to make an educated decision, then the insurance company has violated the law and must provide the coverage. It is not fair to the consumer to withhold material information just to sell a policy.

The penalty for failing to provide PIP coverage to one of my clients when the waiver is invalid is a lawsuit filed by me. Some attorneys don’t like to bother with PIP lawsuits because they don’t generate a large fee, but in the bigger picture, it important that the adjustors know which attorneys will sue and which will not. If the waiver is proven invalid in court, the law allows the client to collect the $2,500 minimal PIP, plus 18% interest, plus attorneys fees. The attorney’s fees are a new provision, the result of which is that the insurance companies are more willing to settle and provide the coverage without a lawsuit.

As an example of this process, this past summer I had a married couple come to me after being involved in a motor vehicle crash. I sent a letter to their insurer requesting PIP applications only to find that the husband signed a PIP waiver 13 years earlier. PIP waivers do not expire. If you waive PIP, it remains waived until you purchase (not renew) a new policy or change insurers. I requested the waiver and immediately noticed multiple defects, at least under the current law. I then pulled the applicable law from 1997 and learned that the waiver was defective when it was purchased. I called the adjustor and explained the defect; she disagreed. I then sent a letter to the adjustor explaining my position. Prior to filing suit, I requested that she have the waiver reviewed by their in-house counsel, which she did. In the end, the attorney for the insurance company agreed with me and PIP was provided to the clients in the amount of $2,500 each. I did not have to file suit, it just required some legal research and trip to the law library (neither Lexus nor Westlaw had the old statute).

Below is an excerpt from the letter that eventually resulted in $5,000 in coverage for my clients.

Dear Ms. X,

As we discussed this afternoon, I reviewed Mr. XXXX’s alleged PIP waiver, and have found it to be defective. The PIP statute in effect on April 12, 1997, the date of alleged waiver, is substantially similar to the current PIP statute, Insurance Article, § 19-506. The old statute, Art. 48A. § 539 (1993), requires at part (f) (2) (iv),

The form shall clearly and concisely explain in 10 point boldface type:

1. The nature, extent, and cost of the coverage and benefits that would be provided under the policy if not waived by the first named insured;

Clearly your purported PIP waiver lacks any language as to the cost of the coverage, a common error on many supposed PIP waivers. In addition, the waiver is silent as to the extent of coverage. Further, any allegedly proper language may be in 10 point font, but is not boldfaced. Finally, you may also notice that [name of insurer] even cited the statute incorrectly on its waiver. As you know, any substantive or even technical violation of the PIP statute compels the insurer to provide minimal PIP benefits; $2,500 coverage each for Mr. and Mrs. XXXX.

The PIP statute is a consumer protection statute and was written into law to make sure that the insured has all of the knowledge necessary to make an informed decision. [The insurer]’s defective waiver took that right from Mr. XXXX. In this case, the PIP statute functioned as it was intended by the Maryland legislature. [Insurer] is a highly sophisticated negotiator and should have been able to provide Mr. XXXX with the proper waiver.

The lesson learned is that you should never take the insurer at its word when any coverage is denied. Also, make sure you have an experienced and knowledgeable personal injury attorney who knows the law.

By Craig I. Meyers, Esq.

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