In my latest ask-the-lawyer column for the Toledo Blade, I explore the ways in which cases are evaluated by insurance companies. As an attorney who handles car accident cases in Toledo and northwest Ohio, I thought this information might be helpful. The link above will take you to the column, but here’s an excerpt to get you started.

Article published March 28, 2010

Insurance company balks at paying after accident

Dear Dale: My wife and I were rear-ended in a car accident in October. We didn’t get hit too hard, but my wife went to her doctor because she was a little sore and she also wanted to get checked out because she was two months pregnant. She didn’t receive any other treatment. I’ve had some conversations with the other driver’s insurance company, but they don’t want to pay me much more than the medical bills. Do I need an attorney?

Trying to figure out a fair settlement in a personal injury case can be tricky. Everything from who paid the medical bills to the price tag put on pain and suffering comes into play. It’s an extremely tough environment for people who have been injured in car accidents because the insurance companies often play hardball.

Normally my default position is that you’ll fare better by retaining an attorney who will take the case on a contingency fee arrangement than you will by yourself. Attorneys who handle personal injury cases deal with these issues every day and have a sense of the value of the claim. Trying to handle a claim on your own can be difficult and a hassle if you have no frame of reference.

First, you’ll have to gather the medical records and bills needed to substantiate your claim. You also may end up dealing with your health insurance company, which may seek reimbursement from the settlement for any money it paid for your treatment. Throw in trying to figure out how much you should be paid for the pain the accident caused and you start to understand why many people wave the white flag and take whatever the insurance company dangles in front of them. An attorney can take care of those issues for you.

The pain and suffering component is particularly difficult because it’s an entirely subjective number. It’s not uncommon for older attorneys to talk about the good old days when cases routinely settled for three times the cost of the medical bills. Those days are long gone. Settlement offers below the cost of medical bills aren’t rare, especially on the minor-impact, soft-tissue injury cases like you’re describing.

So, do you need an attorney? It’s certainly worth talking to a few lawyers to see if they think you need help. But the truth is that if you and your wife weren’t really hurt, your case isn’t worth much. The intensity and duration of your pain and the ways in which it impacted your life help guide the value of that component of a settlement. If you and your wife didn’t receive any treatment beyond the initial visit, it’s fair for the insurance company to conclude you didn’t have much pain.

If you can get your medical bills paid and get some money on top of that for any pain your wife experienced, you might want to consider resolving the case on your own. I would caution you to wait until your baby is born to make sure the accident didn’t cause any problems. In this case, you have two years from the date of the accident before you’d have to file a lawsuit, so you have some time to make a decision.

Dale Emch practices law at the Dale Emch Law Office, LLC, in Toledo. In his column, he will discuss general legal principles and answer readers’ questions. Neither Mr. Emch nor The Blade present or intend his column to be taken as legal advice. Readers seeking legal advice should consult with an attorney. Readers may send their questions to 615 Adams St. Toledo, OH 43604. His blog is at toledocaraccidentlawyerblog.com.

In Ohio, people who have been injured in an auto accident generally have two years to file a lawsuit. If they miss this deadline, they are forever barred from pursuing a claim.

If you’ve been injured as a result of someone’s negligence, contact an attorney immediately so you don’t miss an important deadline in your case.

I wrote about these deadlines, called the statute of limitations, in my newspaper column that appears in the Toledo Blade. Feel free to contact me if you have any questions.

Understanding a bit of negligence law can help people make the decision whether they should contact an attorney in Toledo who handles auto accident cases.

The Charles E. Boyk Law Offices, LLC, published The Ohio Accident Book to answer such questions. An excerpt from the book follows immediately. To order your free copy, call the number above or fill out the contact box to the right of this entry.

PERSONAL INJURY CASE STANDARDS

Not everyone who has been injured can win a personal injury case. The person who causes the injury has to be deemed negligent, or at fault, under the law. Someone is at fault when it is his responsibility to act or behave in a certain way, but fails to and causes some type of damage or injury. There’s a lot of complexity built into that seemingly simple concept, but that’s the rough idea.

A routine traffic accident is a good example. Motorists have a responsibility to drive in a way that doesn’t hurt others.  When a driver speeds, fails to yield, or rear-ends another driver and causes an injury, then that driver is negligent.

            Filing a negligence claim doesn’t mean that you’re accusing the other driver of being a bad person, and it doesn’t mean you’re being greedy. It’s simply a claim that the other person’s conduct has caused you some type of harm for which you deserve to be compensated. No one is going to go to jail as a result of your civil lawsuit. The civil system offers a way for you to be made whole for the damages you’ve suffered as the result of another’s wrongful conduct.

            The insurance industry, along with state and national chamber of commerce organizations, have done a great job of casting doubt on legitimately injured people and the lawyers who represent them. While there certainly are unethical lawyers and people who make fake claims, the vast majority of claimants and attorneys seek only fair compensation for the injury suffered. You shouldn’t feel guilty for pursuing a legitimate claim for injuries caused by someone else.

When you seek a settlement from an insurance company, you’re just trying to be made whole for the medical bills you’ve incurred and the pain you’ve endured. You have nothing to be ashamed of when you look out for your best interests.

As an lawyer who handles truck accident cases in Toledo, Ohio, this is something I always explore for my clients. That said, claims for negligent entrustment of a vehicle rarely pan out because they’re difficult to prove.

I wrote about the topic in my recent column in the Toledo Blade. The test of the column follows immediately.

Dear Dale: If I let my 20-year-old daughter take a car to college for off-campus use, could I be at risk of losing my home if she causes an accident that injures the other driver? Also, would it make any difference if my daughter was intoxicated?

Answer: What you’re asking is whether you can be held liable for the actions of your adult daughter if she causes an injury accident. As a personal injury attorney, I’ve filed claims against parents of children causing accidents in certain situations. The claim is called “negligent entrustment,” which means that the owner of the car was negligent for letting an inexperienced or dangerous driver use his or her vehicle.

To prove that claim the injured party must show that the owner of the car knew or should have known because of the circumstances that the driver was too inexperienced or incompetent to have been trusted with the vehicle. The allegation is that the driver and the vehicle’s owner are responsible for the injuries caused in the accident.

As in any negligence case, the injured party must show that the accident was foreseeable given the circumstances. Generally, if the accident was foreseeable, the person had a duty not to behave in a way that could cause the accident.

When a very young driver causes an accident, it’s reasonable to explore the possibility that the driver’s inexperience played a role. And if that’s the case, it’s also reasonable to examine whether the vehicle’s owner should have trusted the driver behind the wheel.

Our office also has brought negligent entrustment claims when a vehicle is loaned to someone with a history of driving under the influence or with ongoing drug and alcohol problems. The idea is that it’s foreseeable that there’s a known risk that such people would get loaded and cause an accident, given their track record.

Usually, it’s only the information-gathering process that accompanies any lawsuit that produces answers to these fact-specific situations. And, usually, they’re tough claims to prove.

So, where does that leave you and your daughter? If you know your daughter is an extremely inexperienced driver, has a string of drunk-driving convictions, or has caused a number of accidents, you may be on the hook if she gets into an accident.

As a practical matter, most lawyers who represent car accident victims have no interest in seeking recovery from personal assets such as someone’s home. Your auto insurance policy should cover you for any accident your daughter should cause, and your insurance company should provide you with a legal defense if you’re sued. If you buy a policy that provides too little liability coverage, then your personal assets are at risk.

I’d suggest that if you’re going to provide a car for your daughter, make sure you have a policy that provides at least $100,000 per person, $300,000 per accident of liability coverage. In fact, that’s the minimum policy I’d recommend for most people. That would protect you from any personal exposure in most situations.

Dale Emch practices law at the Charles E. Boyk Law Offices, LLC, in Toledo. In his column, he will discuss general legal principles and answer readers’ questions. Neither Mr. Emch nor The Blade present or intend his column to be taken as legal advice. Readers seeking legal advice should consult with an attorney. Readers should send their questions to Mr. Emch at demch@charlesboyk-law.com or Dale Emch, 405 Madison Ave., Suite 1200, Toledo, OH 43604. His blog is at www.toledocaraccidentlawyerblog.com

Owners of cows or horses can be held liable if the animal wanders in the road and causes a crash, but only if the owner knew or should have known it had escaped its enclosure.

As an attorney who handles dog bite cases, I can tell you this is different from the strict liability rules that apply to dog owners. I can’t really say why owners of dogs are treated differently than owners of livestock, but I’m guessing it’s because farmers have far more clout in the Ohio General Assembly.

An article in the Dayton Daily News highlights just a few of the ways in which folks who thought they had purchased full insurance coverage find they won’t be compensated for medical bills and pain under their policy.

Here’s the text of the article:

Accident stats tell grim tale

Accidents happen every day. You’re driving down the road, heading to the grocery store or to work, and another driver plows into you. A crash can start a chain of events ranging from minor inconveniences to a complete disruption of your physical and financial health. Accidents can cause devastating injuries that lead to months or years of pain and medical treatment. They also can create tremendous financial hardship if you are unable to work for an extended time.

Statistics show accidents are a common occurrence on Ohio’s roads. From 2001 through 2007, there were 367,002 crashes annually, according to the Ohio Department of Public Safety. During that same period an average of 133,486 people were injured annually and 1,312 people were killed every year on Ohio roads. To crunch the numbers even further, 322 people were injured or killed every day in traffic accidents in 2007, according to the state.

Those who haven’t been involved in a serious car accident often expect that an insurance company will take care of their bills and compensate them for the pain and suffering they’ve endured. But for many the nightmare is just beginning. The pain caused by the wreck becomes almost secondary to the unfair treatment the victim receives from insurance companies that have one objective – closing the file for as little money as possible without fair compensation for the injured.

            Dealing with the consequences of an accident is a new and unfamiliar experience for most people. That’s why we’ve written this book. It’s intended to serve as a reference tool that can help you deal with insurance companies and the often inevitable and complicated litigation.

We think this book is necessary because you’re at a natural disadvantage when you deal with insurance adjusters who handle claims for a living. They do it every day and all day. It’s the way they feed their families and pay for their homes. In short, they’re professionals and you’re not. To use a baseball analogy, it would be like going to bat against a major-league pitcher. You might get lucky and foul off a pitch or two, but try hitting that big-league curve ball. You’d probably strike out.

The same concept applies to dealing with insurance companies. It has nothing to do with how smart or successful you are in other areas of your life. Insurance adjusters have the advantage because they settle claims for a living. We wrote this book to help you level the playing field. If you have any questions about an accident in which you, a family member, or a friend have been injured, please feel free to give us a call at 419-241-1395 or 800-637-8170. You can also visit our Web site at www.charlesboyk-law.com.

Attorneys know how to navigate the legal process

In all but the most straightforward of traffic accidents, these cases can become very complicated even for attorneys who handle these issues every day. Dealing with insurance adjusters, health-care insurers, doctors, chiropractors, and attorneys representing the insurance company can make resolving a personal injury claim a long, frustrating journey. Hiring a lawyer to help you obtain fair compensation makes sense unless you’ve been involved in a very minor accident.

            If you hire a lawyer, he has a few options when trying to resolve your case. Some lawyers file a lawsuit immediately, which has the benefit of putting you quickly on a trial track. The other path the attorney might take is negotiating with the insurance adjuster to resolve the case without having to file a lawsuit. Most attorneys, including those in our office, prefer the second approach.

Lawsuits are time-consuming, expensive, and unpredictable. The benefit of settling a claim with the adjuster is that the client gets compensated sooner and has a certain outcome. We only file suits quickly if the adjuster makes an unfair offer that we know isn’t going to get any better or if the statute of limitations is about to expire. For a routine traffic accident case, the injured person has two years after the accident to file a lawsuit. The statute of limitations for a minor’s traffic-accident case is two years after the minor turns 18.

            Even with our approach, you shouldn’t expect a quick settlement. As we stated earlier, we think it’s best for the client to follow a doctor’s treatment plan – even if it takes more than a year – rather than settling the case prematurely. This benefits the client’s health and her case. Ultimately, your settlement or verdict will be based to some degree on the cost and length of your treatment.

            Sometimes going to trial becomes the only option. When you’re looking for a lawyer, make sure you hire someone who is willing to try cases if necessary. It can take a long time to get to trial, but it may offer your best chance of getting fair compensation for your injury. If you have to go to trial, be prepared for a long wait because judges have to juggle numerous criminal and civil cases. It’s not unusual for a trial date to be set anywhere from six months to a year after the complaint is filed.

Your lawyer doesn’t get paid unless you do

           People are understandably nervous about hiring a lawyer. Fear that it will cost too much stops some from consulting an attorney, especially when expenses may be adding up as a result of a recent accident. Accident victims, however, don’t pay their lawyer anything unless a settlement is reached or they win in a trial.

Most attorneys who represent accident victims take what’s called a contingent fee, which means that the lawyer’s fee depends on his success in resolving the case. If you win your case or get a settlement, the lawyer takes a fee. If you lose at trial or the insurance company won’t settle, you don’t get anything, but you typically won’t owe the lawyer a fee. Usually, the lawyer takes one-third of the gross award or settlement. The arrangement works for both parties. The lawyer takes a risk that he’ll never get paid if the case bombs. The client gets to pursue his claim without having to come up with thousands of dollars in legal fees. Without this arrangement, some people never would be able to bring a claim because they couldn’t afford it.

            Trying cases can be expensive because court reporters have to be hired to take depositions, those depositions have to be transcribed, medical records have to be ordered, expert witnesses such as doctors have to be consulted, exhibits have to be compiled, and court costs have to be paid. The attorney usually will cover those expenses because most people couldn’t come up with that much money. If the case settles or the client wins at trial, the lawyer is reimbursed for the expenses he incurred in handling the case. Again, this arrangement benefits the client. Our firm handled one case where the expenses alone were in the neighborhood of $100,000. If we hadn’t paid for those expenses, our client never would have been able to pursue his claim even though he had an excellent case.

            When you meet with a lawyer, you will have to sign an agreement that spells out how the attorney will be compensated and how the expenses will be paid. Make sure that the contingency fee arrangement – typically 33 1/3 percent of the gross settlement or award – is clearly spelled out in the contract. If you don’t feel comfortable with the contract, don’t sign it. You’re in control of the situation. If you have questions, make sure the lawyer answers before you sign the document. You can walk away after the case starts, but the lawyer will be entitled to get paid for the time and expenses he’s incurred out of whatever settlement another lawyer obtains for you.

            When the case is resolved, you will get a check that represents the award or settlement, minus the attorney’s fee and expenses. In some situations, the attorney could be entitled under the contract to more money than the client ultimately receives after expenses and medical bills are paid off, but that shouldn’t happen. The attorneys in our office cut their fees so the client always ends up with more money.

On March 3, 2007, Tim was traveling with the Bluffton University baseball team heading to Florida when the team bus flipped over a bridge on I-75 in Atlanta. Tim suffered brain damage  and it looked early on like he might not walk again.

He had other plans.

Tim kept a positive attitude and continued to work on his physical rehab. Today, he still has tremendous challenges, but he’s regained his ability to speak and walk. Now, as an article in today’s Toledo Blade points out, he’s planning on moving forward with his dream of becoming a nurse. If you have a chance, check out The Blade’s story from May 11 about Tim. He’s really an inspiration.