"To recover in a personal injury action, the survivor must (in some states) prove that someone else wrongfully caused the injury."
If someone other than the survivor caused the accident, then the survivor can make a claim. If the survivor caused the accident, then no claim can be made. In many car accident cases, both drivers may be at fault. If the survivor was the driver, then the survivor can recover if the other driver was more at fault. If it is difficult to determine who was more at fault , a claim should be made. Passengers always have a right to make a claim, usually against both drivers and their insurance companies. Passengers can also make claims against the insurance company for their spouse or other relatives.
If the injury is caused, even partially by someone else's fault, a claim should be investigated. An experienced personal injury attorney should be consulted as there are often cases against parties that are not apparent to the survivor or his or her family. In most states, a personal injury accident can not be brought against the employer of the survivor, as the workers comp benefits are the exclusive remedy. However, just because an individual was injured at work, does not mean that no one else can be sued. For example, if a survivor was injured on a defective machine, the manufacturer of the machine could possibly be liable.
A personal injury action usually starts with an effort to negotiate a settlement without court action. If that is unsatisfactory, a lawsuit is filed. Ultimately, if a settlement can not be reached, the case will be tried before a court and a jury.
If there is enough insurance
or a big enough company involved, personal injury claims will
generally provide a greater recovery than social security or a
workers comp action. The reason for the higher compensation is
that the survivor is entitled to be compensated for the full pain,
suffering and disability incurred by the survivor. Medical bills
are fully recoverable, as well as is the loss of earning capacity.
Brain injury damages are best suited to the full process of proof
that a court case entails. While no amount of money can replace
what a survivor has lost, juries tend to do their best when presented
with the complete picture of disability.
The problem in most personal injury cases for the brain injured survivor will be finding enough insurance, or a deep enough pocket, to fully compensate for the loss. By a deep pocket, it is meant a company or individual with the capacity to pay a large verdict or settlement. With the cost of extended hospital care being several times the average person's auto insurance limits, this is an issue in most auto cases. The experienced attorney will look at several different sources to expand the compensation available. There is often more than one insurance policy available, to do what is called stacking. If the survivor or someone in his household had underinsured coverage, this may be used to increase the recovery. Often, it becomes a matter of looking past the obvious wrongdoers and to see if there lurks a hidden wrongdoer in the accident.
If an insurance adjuster is there early in the process, seemingly generously offering to pay all medical bills, don't sign anything. When faced with the pressure of catastrophic medical bills, the promise to pay all the bills may sound wonderful. Regardless of how much they try to endear themselves to you, the insurance adjuster is not your friend. He is not offering to pay medical bills out of the goodness of his heart, but to avoid paying substantially more. The insurance adjuster's job is to pay as little as he can. An early offer to pay bills is tantamount to an admission that they realize they are responsible to pay far more.
Lawyers can be of great assistance to the survivor in recovering benefits to which he or she may be entitled. While it is possible to find your way through the multi-layered process to maximize a recovery without an attorney, it makes sense to at least talk to an experienced attorney to see what they could do for you. Most personal injury attorneys will not charge for the initial consultation.
Attorney Gordon S. Johnson, Jr.
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