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HOW TO HANDLE AND EVALUATE YOUR OWN PERSONAL INJURY OR OTHER INSURANCE CLAIM IN CALIFORNIA

The following discussion is a broad overview to help non-lawyers understand in the most general way how personal injury and other insurance- related cases are handled and evaluated in California, to discuss some of the pros and cons of handling your own less serious claim, and to provide some very limited guidance on how to do so. Many of the issues discussed below (and other issues not discussed below) can become very complex. However, it is impossible to discuss every consideration that might factor into handling and evaluating a case and it would be unduly confusing to try to do so.. The reader should thus consider this as only the most general discussion and not as a comprehensive guide. Further, each case is unique and must be evaluated on its own facts. The following discussion is not, therefore, intended as legal advice - or as a substitute for consulting with a lawyer concerning a specific case.

Do I Have To Have A Lawyer To Handle My Claim?
In a word, "No." There is no legal requirement that you have a lawyer. You have an absolute legal right to represent yourself in dealing with Insurance companies and those responsible for your loss and even to represent yourself in court.

Should you represent yourself?
In serious cases, probably not. Even lawyers are subject to bias that interferes with the exercise of sound judgment. Thus, as the old saying goes, "A lawyer who represents himself has a fool for a client." But if your claim is not too serious, handling your own claim may be alright, as long as you understand the pros and cons.

What Are The Pros And Cons of Handling My Own Claim?
The Pros: If you are reasonably intelligent and persistent, have the time, and are able to maintain your composure, handling your own claim, as long as it is not too serious, may result in a quicker recovery and a larger net recovery (because you do not incur attorney's fees) than if you hire a lawyer.

The Cons: Even if you are careful, statements you make and information you provide to the insurance company or the other side may be construed against you to defeat your claim or reduce the amount of recovery to which you are entitled, and private information may be obtained and used against you. The insurance company or the other side may take advantage of your lack of knowledge of the law and mislead you concerning your legal rights and the type and extent of compensation to which you are entitled. Further, the passage of time may result in the loss of evidence to prove your case--documents get lost and witnesses forget, move, or otherwise become unavailable. Finally, delaying tactics by the insurance company or the other side may cause you to miss the statue of limitations--the deadline by which a lawsuit must be filed in order to preserve your rights.

What Is Necessary To Recover For An Injury, Death, Or Other Loss?
No matter what kind of claim--personal injury, wrongful death, property damage, or other loss--recovering compensation requires four basic elements:

1. Proof of death, injury , property damage or other loss;
2. Proof of fault or legal responsibility;
3. Proof of "damages," which means the amount of compensation to which one is entitled; and
4. Adequate insurance or other financial means to compensate for the death, injury, or other loss.

How Do I Prove Injury, Death, Property Damage, Or Other Loss And Fault Or Other Legal Responsibility To The Insurance Company Or The Other Side?
In virtually all traffic accident cases resulting in serious injury, death or significant property damage, the police will be called and will investigate. The police will interview the drivers and witnesses, note vehicle damage and other damage, and, depending on the seriousness of the accident, take measurements at the scene, for instance of skid marks. The police will then prepare a written accident report with this information and their conclusion concerning who was at fault. In cases of burglary, other crime, or a fire, the police or fire department will prepare a crime or fire loss report.

Those involved in an accident or sustaining a homeowners loss or other loss are entitled to obtain a copy of the police or fire department report at a relatively small cost. Police and fire department reports are generally not admissible in court. However, insurance companies typically rely heavily on police and fire department reports and, in less serious cases, will frequently accept the conclusions in the report. If you are handling your own claim, against another driver or under your own homeowners insurance for example, you should thus obtain a copy of the police or fire department report, determine whether the insurance company or the other side has the report, and, if not, furnish the insurance company or the other side with a copy of the report.

Should I Allow The Insurance Company To Take My Recorded Statement?
Insurance companies frequently obtain statements, often tape recorded, of their own policyholders, the person sustaining the loss, and witnesses. If you are a policyholder making a claim under your own insurance policy (for example, making a property loss claim under your homeowners policy) you may have an obligation to cooperate with your own insurance company by allowing your statement to be taken and, in addition, if requested, to submit to an "examination under oath" before a court reporter .

If you are making a claim under someone else's insurance policy (for example, to recover for property damage and/or injuries sustained in a traffic accident caused by another driver), you do not have to submit to an interview. Depending on how clear fault is and the nature and extent of injuries, however, the insurance company may not settle without having its questions answered.

How Do I Prove The Amount of Compensation To Which I Am Entitled?
In the case of property damage or loss, repair estimates and documentation of replacement cost suffice. In a car accident case, for example, a repair estimate from a qualified shop or "blue book" value should suffice. Also, the popular notion that you are legally required to provide three repair estimates is a myth. You can rely on one repair estimate, as long as the shop is qualified. of course, if the insurance company disagrees, it can ask to have a shop of its choosing provide an estimate.

In personal injury cases, documentation of "economic" damages, such as medical bills and lost earnings resulting from the period of work disability caused by the injuries sustained in the accident, should be furnished to the insurance company. Medical records describing the injuries, treatment, and prognosis should also be furnished.

Typically, insurance companies will request that the claimant sign an authorization to permit the insurance company to obtain all medical records and bills directly from the treating doctors and hospital. A word of caution: The authorizations typically are not limited to records concerning the injuries sustained in the accident, but rather are for all records. As such, signing an authorization may result in doctors and hospitals furnishing records concerning conditions unrelated to the accident that might be embarrassing and which the insurance company might use to defeat or reduce your claim.

Depending on the nature and extent of the injuries and the volume of medical records, it may be advisable to have the primary treating doctor prepare a "narrative medical report" describing the nature of the injuries, the course of treatment, the prognosis, and limitations imposed by any resulting disability. The doctor will likely require payment to prepare the report. However, a well written medical report can be convincing.

Am I Entitled To More Than Just My Medical Bills And Lost Earnings?
Assuming legitimate injuries caused by someone else who was at fault, yes. You are entitled to compensation for "non-economic" damages, as well as economic damages. Non-economic damages are to compensate for intangibles such as, in a personal injury case, "pain and suffering" and loss of enjoyment of life due to disability, and, in a wrongful death case, "loss of companionship" resulting from the death of a family member.

How Do I Determine The Value of A Relatively Small Claim?
In years past, assuming the other side was fully at fault or responsible, his or her insurance company typically settled less serious cases, such as minor neck and back injury cases, for three times the amount of the economic damages. As an example, assume you were injured in a car accident that was completely the fault of another driver, you suffered a neck and back injury, you incurred medical bills of $2,500, and you lost earnings of $2,500 as a result of being unable to work for two weeks. In this scenario, it was common for the other driver's insurance company to settle for $15,000 (three times the combined amount of medical bills and lost earnings).

(Medical bills, although often paid by the injured person's own insurance, are usually (but not always) recoverable. In many instances the injured person's insurance company will assert a "lien" right to be reimbursed from the recovery from the person at fault or from that person's insurance company. However, the amount of medical bills is still important as a measure of the seriousness of the injuries.)

Insurance companies have become increasingly suspicious of "over treatment," such as prolonged chiropractic treatment or physical therapy. Further, insurance companies are aware of how expensive and time consuming litigation is. As a result, they sometimes will offer less to settle small cases.

Ultimately, however, each case depends on its own facts and merits; there is no definite formula to gauge the value of a case.

How Do I Determine The Value of My Claim If It Is More Serious?
Evaluation of more serious claims also requires a determination of both the economic and non-economic damages. However, the complexity is greater.

For example, an injury resulting in permanent work disability requires such determinations as whether the person may be "rehabilitated" into a different occupation (such as, for example, from physical labor to a desk job because of a serious back injury) and calculation by an economist, in personal injury cases and wrongful death cases, of the present value of future lost earnings or financial support. In serious personal injury cases in which ongoing or future medical care will be required, an economist may also be required to calculate the present value of future medical care (such as, for example, for a knee replacement that may be considered likely well into the future).

Wrongful death claims and serious personal injury claims are evaluated with much greater consideration of the non-economic damages. This only makes sense. Permanent paralysis or brain injury, for example, profoundly changes one's life and merits substantial compensation even if the medical bills are not enormous and even if the victim did not work. In medical malpractice cases in California, however, non-economic damages may be restricted to $250,000 under what is called the Medical Injury Compensation Reform Act (MICRA). (MICRA has other restrictions, also.)

Even more so than in relatively small cases, there is no definite formula to gauge case value; the value of each case depends on its own facts and merits .

Can An Experienced Lawyer Tell Me The Value of My Claim?
Guided by experience, a seasoned lawyer can give a very rough approximation--a range or "ballpark" figure--of the value of a claim. However, the approximation will necessarily be dependent on the information upon which it is based, and no lawyer can realistically guarantee a result.

How Does The Amount of Insurance Factor Into The Evaluation of A Claim?
Quite simply, as the old saying goes, "You can't squeeze blood out of a turnip." Assume, for example, that you have been injured in a traffic accident caused by another driver and the driver has an automobile insurance policy of $15,000 policy limits for bodily injury to another person. Unless the other driver has sufficient income or assets to pursue, you may, as a practical matter, have to settle for the $15,000 policy limits even though your claim might be worth much more.

How Do I Find Out The Policy Limits From The Insurance Company?
Ask. Better yet, ask for a copy of the "declarations page" which shows the policy limits. However, some insurance companies refuse requests for the policy limits. (Once a lawsuit is filed, though, the policy limits are "discoverable" in the litigation.)

Recognizing You Cannot Discuss Every Factor Considered In Evaluating A Claim, Can You At least Mention Some of the Other Major Considerations?
Sure. First, the above discussion is based on the assumption that someone else is completely at fault or legally responsible and that this cannot be reasonably disputed. If, however, legal responsibility is not completely clear--as is often the case--the probability that the other person will be found legally responsible must be considered in evaluating the settlement value of a claim. Further, the fact that one person is legally responsible does not mean that others, including the injured person, are not also responsible, in which case this, too, must be considered in evaluating the case.

The term "legal responsibility" has been used in the above discussion, along with "fault." This is because someone may be legally responsible without being "negligent" or being morally blameworthy--at fault. Two examples are, 1) product manufacturers which may be held "strictly liable" (legally responsible) for defective products, without negligence, and 2) "vicarious" liability in which one person is held legally responsible for the acts of another, such as an employer for the negligence of an employee while engaged in an activity for the employer. These and many other questions of legal responsibility may arise, often without clear cut answers.

Questions concerning damages may also have no clear cut answers. These include, as just a few examples:

1. whether an injury or medical condition is "pre-existing," in other words, existed before an accident, and, if so, the extent to which the accident made the injury or condition worse;
2. whether the injury or condition is as debilitating and disabling as claimed; and
3. whether the injured person may be occupationally rehabilitated from the injuries and, if so, to what extent.

Whether a driver has his own insurance and the availability of workers' compensation insurance may, in certain cases, also affect a person's right to compensation.

Another consideration is the cost of a lawsuit compared to the potential recovery. Attorney's fees are only part of the cost of a lawsuit. Other costs include court filing fees, fees for deposition (questioning of witnesses under oath before a court reporter), and expert witness fees (such as for accident analysis experts and doctors). Other considerations include a person's perseverance and willingness to accept the risks of going to trial.