• Nicole Linko

AUTO ACCIDENT CASE

The most common damage case arises out of an auto collision. The most common injury is a whiplash. How does The Onstad Law Firm handle an auto accident case.


The first stage is investigating to determine who is at fault. We obtain the police accident report, photographs of the vehicle, and contact eyewitnesses. In most cases, the police accident report accurately assesses how the collision occurred and who was at fault. It is usually very difficult to establish fault differently than what the police accident report states. Photographs will corroborate the findings in the police report. Witnesses are usually identified in the police report, and they usually corroborate the police report findings.


The second stage is to determine if the other driver who was at fault has insurance. This information is usually stated on the police report. We also examine our client’s auto-insurance policy to determine if there is uninsured/underinsured motorist coverage, and medical pay or PIP. We establish how the medical bills for treatment of the injuries were paid. Finding out how the medical bills were paid leads us to whether or not there is subrogation. Subrogation must be accounted for at the outset. Subrogation is a legal right of the party that paid the medical expenses to be reimbursed out of the settlement proceeds for the amounts it paid. There are many different types of subrogation rights depending on whether the subrogee (party with subrogation rights) is Medicare, Medicaid, a hospital lien holder, workers compensation, a private insurance company, or an ERISA insurance plan. It is virtually impossible to conclude a settlement without squaring accounts with the subrogee.


The third stage is initiating the claim. We send a letter to the driver whose fault caused the collision, or that person’s insurance company. A line of communication is established. That insurance company will be seeking to obtain all of the medical records, billing records, photographs, and earnings records of our client. We will put our client’s UIM carrier on notice that we are pursuing a claim and that the responsible party’s insurance may be insufficient to cover our client’s damages.


The fourth stage is documenting damages. We obtain all medical records and medical bills. When our client reaches maximum medical improvement, we get a comprehensive report from the main treating physician to address all aspects of the injury, to wit: the diagnosis, whether the collision caused the injuries diagnosed, an outline of the medical treatment, whether that treatment was reasonable and necessary, whether the charges were the usual and customary charges, our client’s impairment; our client’s prognosis; whether our client will have future complications, the nature and extent of any future medical care, and the cost of any such future medical care. We may obtain more than one such report, if deemed necessary. We document any loss of earnings or earning capacity by obtaining earnings records, statements from employers regarding loss of time off work. We document other out of pocket expenses necessitated by the injuries.


The fifth stage is preparation of a demand and submitting the demand for settlement to the insurance carrier. We keep the UIM carrier in the loop and seek permission from the UIM carrier to settle with the third party carrier. If the client’s damages exceed the amount of third-party coverage, we make a demand on the UIM carrier for damages that exceed the third party coverage. We make reasonable efforts to settle the case without resorting to filing a lawsuit. Once we file a lawsuit, our fee usually increases from one-third to forty percent, and the expenses can increase from $5,000.00 to $15,000.00 to bring the case to trial. If a settlement is reached, we present the proposed settlement to the subrogee and work with the subrogee to achieve a reduction in the subrogation amount. In most instances, we can achieve a reduction in the subrogation amount. The size of the reduction is usually related to the amount of the settlement. If the settlement is sufficiently large that our client is made whole by the settlement, the reduction in the subrogation may be as little as fifteen percent. The usual reduction is one-third. There are occasions when we can achieve a reduction of the subrogation of more than one-third.

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