Filing a Claim
What is a personal injury claim?
A personal injury claim arises when someone acts in a negligent manner to cause bodily injury to another person. This negligence is referred to as a “tort,” which is defined as a civil wrong. This should not be confused with a crime. The civil court system runs parallel to the criminal court system. A negligent act can result in both a crime and a personal injury claim.
For instance, if a drunk driver ran a stop sign and hit your car, you would have a personal injury claim against the drunk driver for your medical bills, lost wages, and pain and suffering. You would make a claim against the driver’s auto insurance company for this money. The State would also bring criminal charges against the drunk driver for the crimes of drunk driving and running the stop sign. The criminal case would be brought by the district attorney. The criminal case is not YOUR case; it is the State’s case against the driver (who is referred to as the defendant.) The district attorney makes all of the decisions as to whether to offer a plea or go to trial. You would be a witness in the criminal action. However, the personal injury is YOUR case against the defendant. You would be the “plaintiff” and would be suing the driver and his insurance company in your own capacity. You would make the decision whether to settle or go to trial.
There are two parts to a personal injury lawsuit: 1) liability and 2) damages. Liability means that there is fault for the accident in a party other than the injured person. You have to prove fault in another party before you can even discuss recovering damages. So, you can have significant injuries, but if the opposing party is not at fault, or “liable” for the accident, then you will not be able to recover for those injuries.
What is the process to file a personal injury lawsuit?
There are two types of claims, those that are accepted and those that are denied. We assist with both types of cases. In accepted cases, we monitor the medical progress to make sure the client is getting the proper treatment. At the end of the treatment period, we negotiate a settlement to the claim and handle all liens. If the insurance company does not offer enough money to resolve the claim, then we file a personal injury lawsuit.
In a personal injury lawsuit, we would draft a document called a “complaint.” The complaint is accompanied by a “summons” which is a legal notification to the defendant that you are suing them. We have 60 days to obtain “service” of the complaint and summons on the defendant. Typically, the sheriff’s office will deliver the papers or they can be served by certified mail. The person being sued would turn over the complaint and summons to their insurance carrier who would hire a lawyer for them. All insurance policies provide for a lawyer at the insurance company’s selection if you are sued for a claim that is covered by the policy.
The defendant through his lawyer has 30 days from the date of service to file an “answer” to the complaint. The parties then engage in the “discovery” process, meaning an exchange of documents and information. Every person involved in the accident will be subject to a “deposition” which is a series of questions asked by the opposing lawyer to the witness. These questions are asked before a court reporter and are answered under oath. It is a pre-cursor to trial. The answers to these questions can be used at trial by either party. Discovery and depositions are used by the parties to evaluate the claim and prepare for “mediation,” which is a court ordered settlement conference. It is held before a neutral certified mediator. A mediator is a lawyer who has undergone special training to assist parties in resolving their claims. The mediator is a facilitator of the settlement negotiations, but the mediator does not make any legal decisions. If the parties cannot settle the claim at mediation, then it goes to trial. It typically takes about a year to 18 months to get to trial after the complaint has been filed.