There are thousands of car wrecks in Texas every day. Most of them are small fender benders with minor or no injuries. If you have been involved in a serious accident with serious injuries, please do not try to handle your own case. You will do much better, both in making a full recovery from your injuries and in getting a bigger settlement, if you retain an attorney. For those of you in fender benders who have suffered minor injuries, here are some tips on how to handle your own case.
THE ADJUSTER IS NOT YOUR FRIEND
While some adjusters are friendly enough, understand that their interests are not compatible with your interests. As agents for their insurance companies, their allegiance is to their employer. In fact, in third-party claims, (when the adjuster represents the other driver’s insurance company, not yours) the law does not require the adjuster to treat you fairly or to even talk to you. Their job is to save their insurance company as much money as possible.
YOUR DAMAGES MUST BE DOCUMENTED
It is not enough to tell your adjuster your neck is hurting or that you have headaches. Your pain must have been severe enough to have made you go to the ER or to your doctor. You must provide the adjuster with your medical and billing records. Any lost income resulting from the accident must be documented in writing and must be backed by a doctor’s excuse. Prescription bills and any other bills relevant to your injuries must be provided to the adjuster.
GAPS IN MEDICAL TREATMENT OR LONG DELAYS WILL SINK YOUR CASE
If you waited too long, say more than two weeks, to see a doctor after your accident, you have hurt your case. If you had a long gap between doctor visits or treatment, you have hurt your case. Adjusters reason that if it took you a long time to seek treatment after the accident or if you had a long gap in treatment or between doctor visits, you were not really hurt. Every missed physical therapy session works against you. The bottom line is that getting a good settlement requires staying on top of your medical treatment.
DO NOT EXPECT THE ADJUSTER TO HELP YOU
Some people expect the adjuster to send them to a doctor or pay their medical bills as they are incurred. This is never going to happen. While it is true that the adjuster should compensate you for your medical expenses, this is only done at the end of the claim and only after you agree to sign a settlement agreement which forever closes your claim. Adjusters do not usually recommend doctors, but if they do, stay away – that doctor is paid to say there is nothing wrong with you.
DO NOT EXPECT THE ADJUSTER TO PAY FOR FUTURE MEDICAL EXPENSES
This is never done for two reasons: future medical expenses are difficult to prove, and insurance companies do not like loose ends. They want to make sure that when a claim is closed, it is closed forever.
THE ADJUSTER IS A PRO, YOU ARE AN AMATEUR
Adjusters handle cases day in and day out. They receive training and support from experienced adjusters and lawyers hired by the insurance company. You will not outsmart them and you will not get the better end of the deal.
THREATS WILL GET YOU NOWHERE
If you feel compelled to threaten to hire an attorney or to file a lawsuit, be aware that this will have no effect. If anything, these threats are music to the ears of an adjuster. This is because once you hire an attorney the file will be transferred to an adjuster who handles only attorney-represented claims, and if you file suit, it will be transferred to a litigation adjuster. Either way, your adjuster gets to take a file off her caseload.
BE MINDFUL OF THE STATUTE OF LIMITATIONS
In Texas, you have two years from the date of the accident to file suit or sign a settlement agreement. Some adjusters, if you are getting close to the two years, will deliberately drag the claim on in hopes you will overlook the statute of limitations. Once the two years is up and you haven’t filed suit, there are no appeals, no excuses, and nothing anyone can do about it. Your claim is forever closed.
DO NOT THINK YOU CAN HIRE AN ATTORNEY IF THINGS DO NOT WORK OUT
I occasionally get calls from someone hoping to hire me after failing to settle with an adjuster. By this time, though, it is too late. Invariably, the would-be client has created problems in his case. Either he has not stayed on top of treatment, has not gone to the appropriate medical specialists, has let the medical records work against him, or has gone too far in his negotiations with the adjuster and is now finding out that threatening to retain a lawyer and/or to file a lawsuit has no effect. The case is generally to the point where the only hope of getting a better offer is to file suit. A better offer, however, does not mean it is good enough to net the client more money after paying his attorney. There are exceptions, such as when I can get an objective medical test, such as an MRI, that shows a need for surgery. This scenario does happen, but it is rare.
DO NOT ARGUE THAT YOUR INJURIES COULD HAVE BEEN WORSE OR THAT YOU COULD HAVE BEEN KILLED
It is natural to think these thoughts, but this is not admissible evidence in court and will not influence your adjuster at all. The only thing that matters is what actually did happen to you. Yes, you could have been killed, but you were not, and that is that.
BE REASONABLE IN YOUR EXPECTATIONS
The adjuster has evaluated the value of your claim based on her experience and on what local juries have been doing in similar cases. You have neither the experience nor access to the publications that report on what juries have been awarding in cases like yours. Do not make the mistake of believing your case is worth the exact amount as that new refrigerator or that new car you need. At trial, you will not be allowed to ask the jury for an amount that will help you purchase the thing you need or have your heart set on. The only thing you are entitled to is reimbursement of your medical expenses, lost income, and a small amount for pain and suffering. (Remember, I am still assuming you have been in a fender bender and your injuries are minor).
BE POLITE, REASONABLE, AND PROFESSIONAL IN YOUR INTERACTIONS WITH THE ADJUSTER
When talking to the adjuster on the phone, although you are already frustrated because she never returns your calls and is never available when you call, try to forget all that and greet her warmly and ask how she is doing or how her day is going. A few seconds of light banter is helpful, but be respectful of her busy schedule (she probably has 200 claims just like yours to handle). Leave any emotion out of the conversation – she is not going to feel sympathy for you no matter what you say. Be aware of what is contained in your medical records and be able to discuss them knowledgeably. This means you will probably have to Google some medical terms. It also helps to outline or summarize the records. If the adjuster tells you she needs additional documentation on some aspect of your claim, do not complain – tell her you will be glad to provide it. Remember, the more documentation your adjuster can put into her file, the more money she can allot to settle your claim. Lastly, do not complain about the way your claim is being handled, the fact she has not returned your calls, or the fact that she is hard to reach. It will do you no good.
DO NOT ATTEMPT TO SETTLE TOO SOON
If you are still in pain or still being treated, it is too soon to discuss settlement. Even if you feel okay and the doctor at the ER told you the x-rays were negative, settling within a month of your accident is probably still too soon. Sometimes what seems like a minor pain in a knee, wrist, elbow, foot, shoulder, neck, or back, can turn into something serious that will require a lot of medical care and/or medical procedures. You have two years to take care of your case, so do not be in a rush. Waiting a month or two after the accident to make sure you are going to be alright is the smart thing to do. If you settle before you find out your injury is serious, you are out of luck – you cannot re-negotiate.
CONCLUSION
I screen dozens of car wreck cases every month. I frequently reject the small fender benders and explain to the would-be client that his case is too small to share with an attorney. I also explained that if his injuries turn out to be more serious, he should call me so that we can discuss this further. Otherwise, in a small case, he is better off handling the case by himself. I give the same advice to you. If, however, you are not sure whether you want to handle your own case, or if you think your case is too big to handle yourself, please give us a call at the Law Offices of Robert Rodriguez. We have years of experience handling mid-size to serious, tragic cases resulting from car wrecks. Best of luck.
Robert Rodriguez