Should I consult a lawyer after an accident?
To make the proper decision with regard
to legal representation, the first step is to read
your insurance policy. Usually, under the terms of
your contract with the automobile insurance company,
the insurance company must represent you. This representation
will be in place, provided that you have complied
with all the conditions stated in your policy.
The attorney selected by your insurance
company, will defend you in all matters concerning
personal injury or property damage arising from an
accident in which you are involved and for which you
are covered in the policy. There are practical limits
to the extent of the insurance company’s real
interest in your case. Whether you need additional
legal representation depends on the situation. For
example:
If a criminal action is brought against
you that may lead to a jail sentence or suspension
or revocation of your license, you probably will need
a lawyer. The insurance company must defend you only
in civil actions. It will be your responsibility to
seek and retain separate counsel for the criminal
matter.
If the accident produced no apparent
injury to anyone and the property damage you caused
or suffered is fully covered by property liability
insurance, you should receive full protection from
your insurance company. In this instance, the insurance
company adjuster will initially discuss the legal
representation. The insurance company attorney will
likely represent you.
If the property damage is greater
than the insurance coverage you have, you should seek
legal advice, since the insurance company is primarily
interested in what it has to pay and not amounts exceeding
your coverage. Since it’s not always possible
to judge the extent of damages from the outset, use
your common sense and err on the side of caution.
If you think you have done a lot of damage or that
your exposure to additional claims is significant,
talk to a lawyer.
If the accident results in injury
to yourself or anyone else, you should, in all cases,
let your personal lawyer and your insurance company
know the details immediately. Your notification to
the insurance company should be in writing, preferable
sent by return receipt mail, and dated. Keep a copy.
If you have injured someone, your
lawyer will advise you as to what actions the insurance
company should take to defend you against charges
of negligence and claims for damages that may be brought
against you. If you have been injured, he will advise
you of the extent of your rights and the ways to enforce
them and to claim appropriate damages.
It has long been the rule that the
negligent party is liable for damages that occur in
an accident. Additionally, the law is likely to compare
the negligence of all parties to the accident. Except
for mishaps that are ruled unavoidable or perhaps
acts of God, the law’s view has been that every
accident is the result of someone’s negligence.
The law will examine, the performance
of an illegal or reckless act that a reasonably prudent
person would not have committed, or the failure to
perform, in the face of danger, a legally required
or precautionary act that a reasonable prudent person
would have performed.
In this traditional view, the person whose negligence
causes an accident is held responsible to make payment
for resulting property damage and personal injury.
If the accident is caused by the negligence of more
than one of the parties involved, either or both may
be held liable. Again, comparative negligence will
likely be considered.
Not too many years ago, no victim
of an automobile accident, in any state, could collect
compensation from automobile liability insurance for
death, bodily injury or property damage unless he
could prove that the accident was caused by an insured
driver’s negligence.
This necessity of proving that a driver was at fault
creates an avalanche of litigation, which swamps the
national’s courts, costs billions of dollars
in legal fees and helps to raise the cost of auto
insurance to new heights every year.
To alleviate these problems and injustices,
most of the states have adopted the so-called no-fault
automobile insurance laws. While the exact provisions
differ from state to state, their key elements are
similar:
If you have no-fault insurance, you
need not prove that the other driver was negligent
to recover. Your own insurance company will promptly
pay you, within certain statutory limits, for direct
economic loss you have suffered - medical expenses,
loss of wages, substitute household services, and
in case of death, a variety of survivor’s benefits.
In most no-fault states, property
damage is not covered. You still have a right to sue
other parties in the accident. If you can prove their
negligence, you can recover for losses that were not
covered or not sufficiently compensated for by no-fault
insurance (property damage or suffering for example).
Coverage generally extends to members
of your household, drivers who are using the car with
your permission, passengers and pedestrians struck
by your car. In some states, it may extend to occupants
of other vehicles.
Next Week - What Factors Affect My
Insurance Costs?
Michael R. Barnes
practices law in Key West, Florida. His comments are
provided as a pro bono community service and are not
offered as legal advice for a particular set of circumstances.
This article was materially assisted in its preparation
by his paralegal, Christine Gorman. If you are concerned
that you may need a lawyer, you are encouraged to
contact one and follow his or her advice for your
individual situation.
