WHEN YOU ARE INJURED IN AN ACCIDENT – ACT QUICKLY

If you are injured in an accident there is a burden of proving that someone else was the cause of your accident because of their negligence or intentional disregard for the safety of others.  The burden of proof is on you, not the person who caused your injuries, and proving your case is not always as clear cut as you would like.  You may have been at the scene of the accident and know exactly what happened but the insurance adjuster,  judge or jury that will ultimately decide what, if anything you receive for your injuries was not there so you have to prove, by a term called the preponderance of the evidence, that the person who you are making the claim against was at fault.  Sometimes there are other witnesses, sometimes not.  When there are no other witnesses you have your own testimony to use as evidence, which may be disputed by the other person involved in the accident, or you may have to rely on circumstantial evidence to prove your case.

circumstantial evidence means evidence that does not deal directly with the question of who as at fault but leads to that conclusion in an indirect manner.   If you are going to have to rely on the circumstances surrounding the accident to prove your point, without direct eyewitness evidence you can be successful but your job is much more difficult and takes much more expertise and work than the easy situation in which you may have an eye witness who will testify that the other driver flew through a red light without stopping.

In many personal injury cases you must rely on circumstantial evidence to prove your case.  Often there are no eye witnesses and even the victim may have been injured so badly that you, as the claimant, do not have a clear memory of what took place and are not able to testify as to what the defendant did wrong which resulted in your injury.   In these cases it’s important to put together enough circumstantial evidence so that the injured person can prove their case.

Because of the nature of circumstantial evidence it often disappears very quickly and is not available for a long period of time.  The evidence may relate to weather or road conditions.  The evidence may relate to the condition of a walkway or flight of stairs which can quickly be repaired or changed by the owner of the premises.   For these reasons you must take two factors into consideration.  The first factor is the speed with which your hire an attorney so that the matter can be investigated as soon as possible.  The other factor has to do with the choice of the attorney who will represent you.  It is critical that your attorney has the experience and resources to investigate cases of this type.  Experienced Personal Injury attorneys will have had experience with similar kinds of cases and will not have to learn something new on your case.  Experienced Personal Injury attorneys will have both the knowhow and the resources to do a thorough investigation and preserve all of the records necessary to present to an insurance company, judge or jury to prove your case.

Do not let valuable time disappear because evidence will often disappear during that time.  Move as quickly as possible to put someone on the job and cooperate with your attorney be providing all of the information that you can as soon as possible.  Make your own records and write them down so that you do not have to rely strictly on your own memory which can fade over time.

At the firm of Alford & Bertrand, LLC our staff has been handling Personal Injury cases of all kinds, from motor vehicle accidents to slip and fall accidents to medical malpractice cases for more than 30 years.  Our combined team of legal experts has more than 100 years of experience in helping people who have been injured in accidents and digging out the truth behind how the accident took place and who was responsible for the circumstances that caused you to be injured.

If you have been injured in an accident begin protecting your self as soon as possible.  We will be glad to meet with you at one of our four offices in the Greater Boston Area, at your home or, if necessary by your hospital bed.  Call and we will be there for you.

SO CALLED TORT REFORM

The vast majority of personal injury cases in this country allow aggrieved personal injury victims to seek recovery even if they do not have the personal financial resources to pay lawyers in advance for their lawyer’s time and expense.  The contingency fee arrangement plays a major role in giving access to all Americans, regardless of income status, access to a court and jury if they have been injured by the negligence of another.  This is particularly significant if the responsible party is a major institution with unlimited resources which would leave the injured party with no available road to recovery.

It is obvious that major financial institutions and insurance companies would like to see lower and middle income individuals put in this untenable position.  This is why we hear so much about so called Tort Reform and so many attacks on trial lawyers.  The concept of “frivolous law suits is absurd because every time a personal injury attorney accepts a contingent based personal injury case he or she is putting his or her time and treasure on the line by agreement to represent an injured party based upon being paid only if the claim is successful.  Who would risk their time and money on a frivolous claim?  Certainly these kinds of cases would be avoided by most Personal Injury attorneys who the insurance companies and major businesses find to be so clever that they have the ability to create havoc in our economic system.  The vast majority of personal injury claims are in fact cases with merit and the so called frivolous cases a very rare exception.  The risk of spending time and effort as well as expenses on a frivolous case that will not pass muster and will end up with a verdict for the defendant is an expensive frill that almost no attorney wants to become involved with.

So called Tort Reform would not only deny many individuals the opportunity to redress worthwhile grievances it would also put the public in danger.  If we lose the ability to make claims against corporations for product liability when products are designed and manufactured in a way that is inherently dangerous to the public and if we lost the ability to make claims against members of the medical establishment who act in a careless and negligent manner to the detriment of their patients, we throw those without the ability to defend themselves out of their own resources under the bus and permit dangerous behavior to continue to manifest itself to the detriment of the greater public.

Fortunately our Courts, even those which are considered notoriously conservative have repeatedly recognized not only the importance but the absolute necessity of the contingency fee arrangement to allow injured individuals their day in court. The Courts have noted the reality that an injured individual would have absolutely no recourse for his or her injuries with the existence of contingency fee agreements because few if any other than corporate plaintiffs would have the resources to pay for thousands of hours of attorney time not to mention the enormous litigation costs associated with suits of this nature.

The purpose of those who support the Tort Reform movement is to deny those without the resources the ability to compete in the marketplace of American Jurisprudence and that indeed would be a serious blow to the fairness of our judicial system.

Should I try to settle my own Injury case and save the legal fee?

Nothing makes Insurance Companies and their Adjusters happier than an accident victim deciding to represent themselves and save the attorney’s fee.  The Adjusters know that most accident victims have no idea how the system works or how to evaluate a claim.  They are setting themselves up as sitting ducks to be taken advantage of.  Do not think for one second that Insurance Companies do not use every opportunity available to them to take advantage of the unwary consumer and victim.

Anyone who is injured in a personal injury accident and is the victim of somebody else’s negligence needs an experienced and qualified Personal Injury Lawyer.  In virtually every case the payment to the Lawyer will be more than covered by the difference that the victim will recover from the Insurance Company.  Experienced Lawyers know which facts to look for, how to find and preserve necessary evidence, and how the law applies to the facts. Most accident victims do not have the experience to put these pieces of the puzzle together for presentation to an insurance adjuster or judge or jury if necessary.

It is critical to understand that eventually the decision as to the value of the case will be made by an individual or individuals.  This could be an insurance adjuster, a judge or a jury.  Notwithstanding which individual makes the decision it will be based upon the proper presentation of the facts and an analysis as to how the law applies to the facts presented.  The complainant has the burden of proof and must prove that the other party was negligent, that as a result of the negligence there was an injury, and that there is a direct causal connection between the negligence and the injury.  Connecting these dots is not often easy for an inexperienced individual and if you lose on any of the issues the victim can end up being left without any monetary recovery for the injuries suffered at the hands of a negligent individual or company.

When it comes down to a case that cannot be settled the ultimate decisions may end up being made by judges who, in some cases make decisions as to what the facts are when in dispute and sometimes determine simply how the law applies to facts as determined by a jury of fact finders.  Judges have an obligation to apply the law in the district in which they preside and only experienced lawyers know what those laws are and how the Judge must apply them.  Judges do not have the authority to make law but only to apply it to the facts.  It takes an experienced trial attorney to help bring the appropriate facts and law to the Judge as the Judge does not act as an investigator and will not do that work for the victim.  That is the accident victim’s lawyer’s job.

Before deciding to attempt to resolve an accident case yourself you must ask yourself whether you have the knowledge and skills to make your case on the facts and the law.  Do you know the rules of evidence and how to get the facts into evidence?  If you are dealing with an adjuster he or she knows that you are not likely to know which items of evidence or important and determine whether you would know how to preserve the evidence and make it available at trial.  If the adjuster believes that you do not have those skills the settlement offer will be reduced according the adjuster’s analysis of your ability to make your case in a legal forum.  The adjuster’s job is to give you as little as possible and that is how they merit increases in status and pay with the Insurance Companies.  The Adjuster is not your friend now matter how courteous or friendly he or she may appear on the phone.

Half Truth is a whole lie

The following article states that as a result of competition insurance rates in Massachusetts have fallen by an average of more than $100.00 per policy.  What it fails to state is that the quality of the policies being sold and the coverage that is being provided by some of these newcomers to the state is less than adequate and in the event of an incident requiring help from your insurance company you are very likely to find yourself out in the cold having dealt with a discount company.  Beware of so called cheap insurance.  You often get what you pay for and with insurance that is almost always the case.  We recommend that you deal with a reliable agent and avoid the risk of buying auto insurance on the internet because unless you are very careful and sophisticated you are surely going to find out at some point that you do now have the coverage that you think you do.

Massachusetts auto insurance deregulation brought variety, lower prices, National Association of Insurance Commissioners says

Jim Kinney

The average driver started saving $133.80 a year in car-insurance premiums once the state deregulated its insurance markets in April 2008, according to a report released Wednesday by the National Association of Insurance Commissioners.

According to the report, the average premium from the end of 2007 was $1,056.91. Buy the end of 2009, it was $923.11. That works out to a 12.7 percent decrease.

The national average decrease over that time was just 1.4 percent, according to a news release from state insurance commissioner Joseph G. Murphy.

Matthew C. Marchesi, of Southampton, figures the switch has saved him $600 a year on his two cars.

The National Association of Insurance Commissioners only looked at insurance for private passenger cars, according to the release.

Before April 2008, the state set auto insurance rates each year, a system that lead to Massachusetts having the most expensive auto insurance rates in the nation. Today, insurance carriers set their own rates with some regulation by the state.

The change has helped attract 13 insurance companies to the state since 2008, according to Murphy’s office. They are: Allstate, American International Group, IDS/Ameriprise, Bankers Standard, GEICO, Green Mountain, Harleysville, Occidental, Peerless, Praetorian, Preferred Mutual, Progressive, Vermont Mutual. That makes a total of 32 companies, up from 19 insurers before 2008.

“The competition is now more intense,” said William O. Trudeau, chief operating officer of Insurance Center of New England agency in Agawam.

Competition means that companies offer more features to their polices, like accident forgiveness and disappearing deductibles for safe drivers, Trudeau said. No one offered those features in Massachusetts before because there was no reason to bother.

Competition also means that agencies like Insurance Center of New England has to fight insurers like GEICO, which sells policies online and advertises heavily.

“It makes us work harder to provide better service,” Trudeau said. “We have to help our customers save money and smooth things out for them if there is a claim or if they buy a new car or they have to go to the registry.”

Bad drivers are less likely to make out under deregulation, though.

“It used to be almost a ‘take all comers’ policy,” Trudeau said.

Now, drivers with 10 points – a drunken driving conviction can mean five points for example – get put in a high-risk pool with higher rates.

 

THE AUTO INSURANCE CRISIS OR HOW TO AVOID INSURANCE COMPANY TRAPS

The year was 1971.  The Commonwealth of Massachusetts passed its first No-Fault Insurance Law.  Two of the fundamentals of the law provided, with some exceptions,  that you could not bring a claim for personal injuries resulting from an auto accident unless your medical bills exceeded a certain threshold limit and a certain portion of your medical bills would be paid for treatment to injuries suffered in an auto accident regardless of who was at fault so the insured, in exchange for paying their insurance premium, would not get stuck with medical bills for health care treatment.  This second fundamental is referred to as Personal Injury Protection.  At the present time most of the drivers in Massachusetts can count on $8,000.00 in coverage for medical bills and lost wages.  If you have a group health insurance policy the limit available for medical bills is $2,000.00, your health insurance company is responsible for medical bills in excess of $2,000.00 and the balance is available for lost wages while totally disabled as a result of the injury.  If you do not have a group health insurance policy the total $8,000.00 is available for health care reasonably related to the injuries.

The law further provides that if another driver’s insurance company becomes responsible to pay you for injuries suffered in the accident, either by settlement or at trial, your insurance company gets reimbursed by the other driver’s company for the amount paid.  The term for this right that your company has is known as subrogation.  If you have settled your case you may not even be aware that your insurance company is being reimbursed.  If you have received a court judgment against the other driver in the accident you will be made aware of the right of subrogation because before you get paid your insurance company will get reimbursed and the amount reimbursed will come out of the award that the court has given you.

WHEW!  Sorry to take so long to get to the crisis but this background information is critical to understanding how some insurance companies are now taking advantage of consumers and how you can prevent yourself from becoming a victim of unsavory insurance marketing practices.

From 1971 things went pretty well until the advent of purchasing insurance on the internet without the advice of a broker and the introduction into Massachusetts of so-called discount insurance companies who base their sales practices on claiming that you can name your own price.  Let’s be clear – you get what you pay for and when you name your own price you are almost always getting less coverage than you may need in the event of an accident and will pay a steep price if you are injured in an accident for dealing with these companies.

The major victim of inadequate insurance coverage is the purchaser (you) because you must always have coverage to benefit someone else you injure in an accident but to save a very small amount of premium  you may, without knowing it, be losing the right to be paid for your own medical bills and lost wages if you are in an accident.  When you buy insurance on the internet, more often than not, the first choice offered has what is referred to as an $8,000.00 deductible on the Personal Injury Protection portion of your policy.  The savings are meager and you may not even be aware of what you are giving up unless you are a very sophisticated consumer.  Once you have an accident, however, you will find that there is no automatic payment for your medical bills and lost wages.  You are out there on your own.  Thank your insurance company for the beating that you are about to take.

Here is why you are going to take a beating.  First, even if you do not have Personal Injury Protection because you purchased from a discount company, and your medical bills are not paid, and you have not collected lost wages, Massachusetts law allows the other driver’s insurance company, the driver that caused your injuries, to have their right of subrogation and deduct the amount that they would have paid to reimburse your insurance company from your settlement or court award even though you have not received any benefit and will have to pay these expenses out of what is left of your settlement after the deduction.  So you are losing up to $8,000.00 in benefits from the at fault insurance company and have not received ten cents in benefits from your discount insurance company.  After payment of your medical bills you may end up with nothing in your pocket for your non economic losses for such things as pain and suffering and disability.

In addition let’s say that you have chosen the $8,000.00 deductible because you have your own group health insurance through work or otherwise.  Now your medical bills are getting paid by your health insurance carrier and not your auto insurance company but here is the problem.  Under Massachusetts law your group health insurance company has an absolute right to be reimbursed for anything that they have paid if you collect from a third party as the result of settlement or a court award.  Once again after your health insurance company gets paid there may be little, if anything, available for you for your paid and suffering and disability.

Our advice – stay away from these so called discount insurance companies and their misleading TV ads that state that you can name your own price.  They are giving you just what you a paying for which is generally inadequate coverage.  Where ever you buy your auto insurance make sure that you have Personal Injury Protection for yourself not just for other people who may be in your car or other third parties such as pedestrians.  Buy your insurance through a reputable agent or reputable company that will make sure that if you are involved in an accident you will not end up being shocked by the terrible coverage that you have received by some dealing with some inanimate screen on your computer or laptop.

If you have friends of family who you care about, pass this information on.

THE LEGAL ELEMENTS OF A PERSONAL INJURY CASE

A personal injury case is almost never a slam dunk for either side. Furthermore, the plaintiff has to prove all the elements of a personal injury case before the court can return a winning verdict. Personal injury or negligence cases require meeting four elements:

• Duty of care
• Breach of the duty
• Causation
• Injury

Not Meeting One of the Four Elements The validity of a negligence case depends on meeting each of the four elements. You have to prove that the prospective defendant is liable for your injuries.

Duty of Care If the defendant did not owe you a duty of care, then you have no case. Varying duties are owed to plaintiffs such as licensees, guests, trespassers, etc. The duty of care is greater for guests and licensees than for trespassers. If you contributed to your own injuries in a significant way, you may not be able to pursue a lawsuit. This is the principle of contributory negligence. Some jurisdictions do not allow plaintiffs who contributed more than 50 percent or even 1 percent to their own injuries to seek recovery from a liable defendant.

Breach of the Duty You have to prove that the defendant breached a duty of care to you, the victim. There has to be evidence that the defendant’s conduct was out of character with the behavior of a rational person toward similarly situated people.

Causation You have to prove that the defendant’s conduct was the actual or proximate cause of your injuries.

Injury You need a significant injury. Not only is this more efficient due to the costs and time involved in filing a lawsuit, but judges have very crowded dockets without taking cases for minor injuries.  Ultimately, if you can not provide evidence to prove all four elements of a personal injury case, you are going to have wasted your money, time and effort in filing a lawsuit.

When the Defendant Has No Money  Even if you are victorious in court, you have to make sure you can actually collect from the defendant. This is why most lawsuits include parties like insurance companies and major corporations that have deep pockets. If the defendant has no money to pay the judgment, he or she is deemed judgment proof. This means your judgment is useless.

WELCOME TO THE PERSONAL INJURY ACCIDENT BLOG SITE OF ALFORD & BERTRAND, LLC

For more than 30 years the Law Firm of Alford & Bertrand, LLC has been one of the most familiar names in the Boston area with regard to helping individuals who have been injured in accidents recover for their losses and damages.  Whether you have been the victim of an automobile accident, have fallen as the result of ice and snow which has not been properly removed or treated, fallen as the result of broken stairs or a foreign substance on the floor of a store where you have been shopping, we have been there to help.

If you have been caused great pain and suffering as the result of improper and negligent treatment from a health care provider or hospital, if in the worst of all worlds you have lost a family member as the result of negligent health care, we are here to help.

With offices located in Watertown, Lynn, Quincy and the Mattapan section of Boston we are conveniently located to serve our clients.  With office hours that include weekends and evenings we can see you at your convenience.  With more than 30 years experience and a willingness to role up our sleeves and fight hard for you we can get you results.  With staff members who speak Russian, Armenian, French, Haitian-Creole and Spanish we can communicate with you to determine your needs and circumstances.

Call anytime for a free consultation and always remember that unless we win for you we do not get paid.

It is our intention to keep our clients and friends up to date in the areas of Personal Injury Law and will be posting Blogs on a regular basis to keep you informed as to what the law is and how it may play a role in your life.  Check in with us regularly and we believe that we will provide you a great deal of important news and information.