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Motor Vehicle Injuries 
Copyright © 2004 Zegarelli Law Group. All rights reserved.

Many, if not most, persons are involved in an automobile accident at some point during a lifetime of driving.  Our firm accepts representation for these types of cases on a preferred client basis.  That is, generally, the firm does not market these types of cases, but, for certain clients and friends of the firm, we will accept representation because certain attorneys at our firm have backgrounds in this area of law.  For the case we do not accept, we can assist with finding an attorney for representation.

In the event you are injured in a motor vehicle accident, you may desire to pursue legal action. In Pennsylvania, your rights and obligations are determined by Pennsylvania's Motor Vehicle Financial Responsibility Act. 75 Pa.C.S. §1701 et seq. A summary analysis of those rights and obligations, as stated below, can uncover impediments to recovery as well as pitfalls to avoid.

Full tort vs. limited tort option. A very basic initial question is whether you selected the full tort or limited tort option under your insurance policy. All residents of Pennsylvania acquiring automobile insurance coverage have the option of choosing full tort or limited tort. If you choose the full-tort option, you will pay a higher premium; however, you have retained your right to seek damages for pain and suffering in the event you are involved in an automobile accident. If you choose the limited tort option, you will have lower insurance premiums; however, you have compromised your ability to suit for pain and suffering in the event you are involved in an automobile accident. In effect, the majority of accident victims who have limited tort will not be able to recover pain and suffering. Specifically, limited tort victims can only pursue damages for pain and suffering in the event of a serious injury defined as "death, serious impairment of body function or permanent serious disfigurement." 75 Pa.C.S. §1702. One's status as full-tort or limited tort is easily obtained by looking at the declaration's statement of his insurance policy called "dec sheet."

Limited tort exceptions. An insured who has selected limited tort can still recover as if he or she had full tort in certain situations which constitute exclusions to the limited tort option. This includes when the at-fault driver is driving a vehicle registered in another state. It also includes the situation where a driver is under the influence of alcohol or some other controlled substance. In such an event, if this person is convicted of this offense or accepts Accelerated Rehabilitative Disposition, a more lenient disposition for first-time offenders, the injured driver is deemed full-tort and can recover pain and suffering. The injured party is also considered full-tort if he was an occupant of a non-private passenger vehicle at the time of injury. Finally, in the event the other driver did not maintain insurance coverage, the injured party would be considered full-tort. 75 Pa.C.S. §1705.

Damages. The most significant form of damages is pain and suffering (non-monetary damages). In a case involving death or paraplegia, the amount can be considerable. Damages may also include seeking recovery for medicals and all out-of-pocket expenses, such as lost wages. Under Pennsylvania law, medical bills and lost wages are covered by one's own insurance policy under one's first-party benefits coverage. Under first party coverage, a policy must contain a statutory minimum of $5,000 in medical coverage. 75 Pa.C.S.§1711. Typically, one would also find $1,000 a month in lost wages covered. Additionally, there is rarely a need to pursue a claim for damages to your vehicle since this portion of your damages, except for your deductible, is essentially covered by your own collision coverage under your own insurance policy and/or the property damage portion of the other driver's policy. It is noteworthy that in cases involving a 'totaled' vehicle, insureds are usually surprised to find that the value given by the insurance company for the vehicle under collision coverage does not equal the value owed on the loan. To avoid this dilemma, insureds can purchase ahead of time what's commonly referred to in insurance parlance as "gap insurance."

Investigation of the Claim. A proper investigation of the claim, whether by the injured party if unrepresented or their counsel if represented, involves visiting the scene of the accident and taking photographs of the vehicles and location. The view of the scene from the perspective of each driver involved should be captured in a photograph as well as the damages to the vehicles and any visible injuries to the parties. The police report is a valuable source of information and can usually be obtained for $15.00. It contains such important information as the identity and contact information of the investigating officer, names and telephone numbers of witnesses, statements taken from each witness or driver, summary of injuries, and a diagram of the accident scene. Insurance adjusters always review and rely on the police report and are usually apprehensive about paying out on a claim in which the investigating officer has found fault in the driver requesting compensation. Upon obtaining the police report, witnesses can be contacted for their version of the facts. Medical records should also be obtained for the injured driver.

Valuing your Claim. In determining a monetary value for your claim, adjusters look to the seriousness of the injury and the extent of medical treatment required. A typical automobile accident that occurs with frequency is a rear-end collision involving one vehicle hitting into a stopped vehicle in front of it. In such accidents, normal complaints include pain in the neck region from the whiplash affect of the rear impact. Injured parties also typically complain of significant, recurring severe headaches during the period of recovery, which is usually a period of three to six months. Adjusters refer to the "whiplash" type of injury as a soft-tissue injury in that there is no visible sign of injury other than the individual's subjective complaints of pain. Because of the subjectivity of the injury, adjusters do not place as high a value on these types of claims. Such collisions also involve rather minimum damage to the vehicles, a fact that insurance adjusters and/or defense counsel is very quick to maximize in diminishing the value of the claim.

Accidents involving broken bones are considered hard tissue claims because the injury is visible on an x-ray. Since broken bones are objective evidence of injury, more compensation will typically be given. If the accident involved a driver burned in the accident, the burns would also constitute objective evidence. In the event of permanent injuries such as that involving a paraplegic, damages can include diminished earning capacity and the current and future need for constant and permanent medical attention. Expert witnesses are needed to place a value on those future payments.

Adjusters will also utilize information obtained in the medical records in placing a value on a claim. They will look to see what complaints of injury are detailed in the ambulance trip sheet and the medical records of each separate medical provider. Additionally, they will look to see whether the victim went to the hospital and/or received medical treatment immediately after the accident. Treatment that commenced months later or that is remote to the accident is viewed with skepticism. Adjusters also want to see if the victim is following the treatment regimen, including attending all appointments and following any exercise routine prescribed in conjunction with physical therapy. Finally, adjusters will want to glean from the records the date the treating physician returned the individual to go back to work and what conditions or limitations, if any, were placed on working.

Adjusters are very doubtful of victims' complaints and prescribe to the theory that "seeing is believing." If a victim claims that his day-to-day functioning during the period of recovery was affected, documentation is the best evidence. For instance, someone claiming that they are an avid hunter that was forced to miss hunting season as a result of an accident is viewed with more credibility if they can submit a copy of a hunting license. Finally, a victim can keep a diary including as much as a detailed, day by day account of their feelings and symptoms to as little as a couple notations of any incidents in which their pain and injuries were particularly significant or intense.

Prior medical history. Adjusters also have access to indexes of prior injury claims made by accident victims. If one injured in an auto accident has a lot of prior injuries or claims, two issues surface: one, whether the individual's claims are credible or just signs of a litigious individual. More importantly, the prior medical history will show whether the injuries to which the injured party is currently complaining are genuine, or to the contrary, continuing injuries from a prior accident. For instance, an individual with a prior automobile accident, worker's compensation injury, and a slip and fall injury on someone's property will have great obstacles to succeeding in their claim for compensation. If they complain of neck pain from a current automobile accident, how is it to be established whether the pain was from the current accident or one of these preceding traumas.

Independent medical examination. When there is a claim of significant or permanent injuries, adjusters will request that the injured party submit to independent medical examinations, called IME's, with medical providers that they routinely use to determine a claimant's credibility or seriousness of the claim. When an injured party has prior injuries, a physician's opinion as to causation of the injuries will be required. In litigation, such a medical expert will need to testify to a reasonable degree of medical certainty that the injuries were from the current accident and not a continuation of the prior injuries. They may also testify to the seriousness of the injuries, a prognosis for the future, and a prescribed regimen of corrective action required, including surgery. Besides medical experts, other experts can be used in more serious accidents. For instance, accident reconstruction specialists are used to reconstruct accidents and determine fault. Vocational experts will be used to determine an injury's impact on earnings.

Workers Compensation Liens. At times, you will have a driver that is injured in an automobile accident during the course of their employment. They can recover worker's compensation benefits and additionally, can pursue the negligent third-party driver for pain and suffering. A caution to those individuals who seek to settle automobile accidents without the assistance of attorneys is especially significant in such a situation. The driver must remember when submitting a claim to the insurance company for damages to include the worker's compensation subrogation lien for expenses paid out by the workers compensation carrier.

Underinsured and Uninsured Claims. At times, individuals will be injured by drivers that fail to maintain insurance coverage. The at-fault driver will claim that "they are between coverage." At other times, individuals will be injured by unidentified drivers fleeing the scene of the accident. In these instances, a claim against the injured driver's own insurance policy under the uninsured motorist ("UM") coverage is appropriate. It is noteworthy that such coverage is comparatively inexpensive to obtain as compared to liability and collision coverage. In other instances, at-fault drivers may have maintained their insurance but due to the severity of the injury claim, do not have enough insurance coverage to cover the claim of the injured party for compensation. A claim against one's own underinsured motorist ("UIM") coverage is appropriate in this instance after exhausting the at-fault driver's coverage.

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