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5 Reasons NOT to Have an Attorney for an Auto Accident

Posted on by Matt Hamilton

FIVE REASONS NOT TO HAVE AN ATTORNEY FOR AN AUTO ACCIDENT

Opinions vary as much as people vary when it comes to whether to hire a lawyer after you have an auto accident.  This article explains five reasons why one may choose not to hire a lawyer for their auto accident case.

No. # 1 – PROPERTY DAMAGE ONLY

Most auto accidents do not involve personal injury, thankfully.  Also, most insurance companies have separate divisions called “property casualty” divisions.  Property Casualty Divisions tend to be more reasonable in giving money to settle property damage claims.  Even in injury cases, one will typically have two different insurance adjusters.  One adjuster will handle the property side.  Another adjuster will handle the injury side.

A property damage only case is more likely to garner a reasonable offer for property reimbursement.  Thus, you may not need a lawyer if your auto collision caused only property damage and the insurer offers reasonable compensation.

How to Learn the Reasonable Value for your Vehicle

It is common to have a discrepancy over the value of a vehicle if it has been “totaled.”  Know that insurance companies are sophisticated in their car value evaluations.  Do not expect to get full value for your vehicle.  A reasonable value (not full) will be a success.  This is because insurers know it will cost you time, effort, stress, and money to fight them over vehicle value.  You may very well find yourself in the unpleasant position of taking less than your car is worth because it will cost you more money to get a reasonable insurance offer.

Remember that Kelly Blue Book valuations (www.kbb.com) may overstate the value of a car.  The insurance adjuster and industry “gold standard” is the “black book” of the NADA, also known as the National Automobile Dealers’ Association.  This “black book” is rather expensive.  However, its website www.nada.com provides free valuations.

Is the insurance company paying less for property damage than the full amount of insurance available?  Is there also a serious injury?  In these cases, not hiring attorney could lose you money.  A clever attorney may even be able to get the full amount of insurance on the property value case by combining the claims for both injury and property damage.  This is one method to maximize the reasonable value of your case.

No. # 2 – WHAT IS THE INJURY?

Medical Bill Amounts

Many cases do not need a lawyer if injuries are small or pre-existing.  First, look to the medical bill amounts.  Medical bill amounts totaling less than $5,000 often do not justify the hiring of a contingency fee or hourly lawyer.  This is because the potential settlement amount is so small that one may spend more money paying the attorney than the handling it on one’s own.  Almost always, a dedicated injury attorney will win you a higher amount in settlement.  However, a case with small medical bills may not justify that attorney’s fee.  Remember, it’s about the total amount in the end that you are getting.  It’s not about the total amount of your settlement.

Injury Type – No Lawyer

Exactly what is the injury?  Sore backs, strained necks, and headaches are the most common injuries reported after collisions.  These typically resolve after eight weeks of activity.  Physical therapy is common.  Anti-inflammatory pain medication is common.  These common injuries tend not to produce high case values because juries do not award large judgments at trial.

This type of injury, alone, (even with medical expenses exceeding $5,000 to $10,000), may not require the services of a lawyer.  This is again an issue of economics.  If your case value is low, paying an attorney 33 to 50 percent of the case value may not be worth the investment.

Injury Type – Yes Lawyer

Other types of injury necessitate attorney involvement.  For example, amputations and broken bones often do not cost much and medical bills are low.  However, they can be valuable cases.  Such cases also are so complex as to need the professional services of a lawyer.  In short, typical injuries that resolve on their own often do not require an attorney.  Permanent injury or disability typically does point to hiring an attorney.

No. #3 – HAS THE INSURER MADE A REASONABLE OFFER?

It is less common nowadays.  However, there are still some reasonable insurance companies.  There are still reasonable insurance adjusters.  You, as the victim, need to make a judgment based upon the offer, if any, from the insurance adjuster.  If the offer is reasonable and makes you happy; take the money and be happy. There is no need to hire a lawyer.

You can call an injury accident lawyer and ask his opinion as to the value.  It may surprise you that they will give an honest answer.  Remember, every attorney wants happy clients.  No one wants to waste money and be of no service.  If the offer pays for your property damage and medical bills, you may wish to take it.

No. # 4 – WHERE DID THE ACCIDENT OCCUR?

People in different parts of the country think differently.  So too, the laws in different parts of the country reflect those peoples’ attitudes and are different.  Some places are conservative.  Some places are liberal.  Injury accident values vary considerably based upon location.  If one has an accident in a highly conservative area where injury values are low, they may not want to hire a lawyer but keep what little money is offered for themselves.  Other areas tend to provide more reasonable results.  Full value will then require the expertise of an attorney and justifies the expense.

How can you determine if your accident location is good?  My best advice is to call an injury accident lawyer from your particular jurisdiction and ask.  It won’t take more than an hour of your time to call three lawyers and ask their opinions as to the value.  You will then have an opinion population and can make a judgment on your own.

NO. #5 – HOW MUCH TIME AND STRESS DO YOU WANT TO EXPEND MANAGING YOUR CLAIM?

We all spend our lives confronting and solving new problems.  Anything you are an expert at means that at some point you were a rookie and knew nothing … but learned.  Do you enjoy tackling new problems?  Do you want to learn a complex new area?  Are you willing to take the risk?  How busy is your life presently?

Some people will enjoy the challenge.  Other people will want to delegate the work because their priorities are elsewhere.  This involves your decision whether to hire a lawyer.  If you want to take the risk and get the satisfaction of handling the claim yourself, you should do so.  If you would rather delegate to an expert for the cost of the expert, do that.  One way or the other, you will have to live with your decision.  The decision of when not to hire an accident lawyer will be your opinion and your opinion is the only opinion that really matters.

Author:

reading law bookMatt Hamilton of Hamilton & Associates, Lawyers

  • Juris Doctor
  • Trial Attorney

How a Business can be Sued for the Criminal Acts of a Non-Employee

Posted on by Matt Hamilton

How Can a Business be Sued for Criminal Acts by a Non-Employee?

Pedestrian Hit by a Car in a Parking Lot

It is Saturday night. Robert owns a local coffee shop.  This coffee shop is a building and a parking lot next to a crowded street.  Young people like to congregate and socialize in its parking lot Saturday nights.

Bob’s Coffee Shop tolerates the people hanging out in its parking lot.  Perhaps Bob remembers when he was young.  Perhaps it increases his customer base.  Perhaps Bob is simply busy with the running of the business and tolerates their presence, having fun on his coffee shop property.

The kids like to stand around and socialize.  Others “hot rod” through the parking lot.  They speed; they play chicken; some even drive drunk.

One Saturday night is particularly busy.  There are a number of people hanging out in the parking lot.  Others are showing off driving through, speeding, drinking, and driving.  A young girl gets hit by one of the drivers.  Can the victim hire an auto accident lawyer to sue Bob for failing to kick the drivers or pedestrians out of his parking lot?

The General Rule; the Owner Cannot be Sued.

The general legal rule is that business owners do not have a duty to protect their invitees from the criminal acts of third parties. See Posecai v. Wal-Mart Stores, 752 So.2d 762 (La. 1999); Sturbridge Partners, Ltd., et al. v. Walker, 267 Ga. 785, (1997).

Owners do not generally have a duty protect their people on their property from the negligence of others who do not work for them or represent them.  Burnett v. Stagner Hotel Court, Inc., 821 F.Supp. 678, 682 (N.D. Ga. 1993). There is an exception.

The “special facts and circumstances” exception that creates business liability.

A business owner can be liable to a victim on his property even when the perpetrator had nothing to do with the business owner.

The special facts and circumstances exception applies with the following test:

  1. Is the perpetrator a third party? (Not the business itself or one of its agents)
  2. Is the perpetrator known to be violent? Did the person behave in a way that indicated danger was on the premises?
  3. Did the business owner have sufficient time to prevent an injury?

Ali Aziz v. Jack in the Box, 477 S.W.3d 98 (Mo. App. 2015).

Foreseeability is the Key

Foreseeability

Our Supreme Court has spoken about this issue.  The “touchstone for the creation of a duty is foreseeability.”  Madden v. C & K Barbeque Carry-out, Inc., 758 S.W.2d 59, 62 (Mo. 1988).  It’s all about the facts of the situation. Is there a foreseeable likelihood that failing to act will cause harm?  Then you likely have a duty.

Can the business owner anticipate that acting in the way that he does will cause injury?  Then there is duty.  In Aziz, there was a fight in a parking lot and Jack in the Box was held $20.5 million dollars liable for the resulting harm.

In another case, an innocent victim was raped in a gas station parking lot by an unknown person.  The court and the jury found the circumstances created a dangerous situation for the victim that the gas station owners could have fixed.  Instead, the owners did nothing and she suffered great harm.  Richardson v. QuikTrip Corp., 81 S.W.3d 54 (Mo.App. W.D. 2002).

Do We Actually Need To Know About The Threat?

Actual notice of a specific threat is not a requirement to be held liable for accident injuries on property.  There is only the requirement that someone (a third party; not connected with the business) acts in a way that indicates a danger on the business owner’s property and that also there is sufficient time to prevent that injury.

Does The Danger Always Have To Be To The Actual Victim?

The law refers to these people as “invitees.”  These are people who come to the property because the business invites the public generally.  They may also come with a specific expectation of some benefit by being on the business owner’s property.  We are talking more about customers and less about burglars.

The anticipated risk of injury does not have to be to the actual victim that winds up getting hurt.  The victim merely needs to be in the class of people or the type-of-person who is put at risk.

Referring to our example of Bob’s Coffee Shop, the crowd generally was at risk for being hit by an automobile and creating a pedestrian auto accident.  It is not necessary for the victim to have been there a long time or acted in a particular way.  This is more about a duty of care to prevent an injury by a known danger or a danger that could have been revealed by an adequate inspection.  The victim does not need to actually enter the business.  They do not actually have to complete a transaction. Aziz, 477 S.W.3d 98.

Conclusion

Pedestrian auto accidents are some of the most harmful events caused by cars.  The victims do not have the benefit of the protection of seat-belts and roll cages or airbags.  Business owners need to be mindful of all types of injury on their premises and not merely turn a blind eye because they are not the direct perpetrator.  If they do, they may find themselves with a personal injury lawsuit and claim against them.

Author:

Matt Hamilton of Hamilton & Associates, Lawyers

  • Juris Doctor
  • Trial Attorney

 

Bibliography:

Jessica Agnelly, Court Analyzes Business Owner’s Duty Owed to Invitees from Criminal Acts of Third Parties, Mo. Trial Atty., 16 (Winter 2016).  https://www.matanet.org/

Sean Martin & Allison Carr, Are You as Guilty as the Criminal? Liability for Criminal Acts of Third Parties and Employees, FDCC Winter Meeting (2014).  http://www.thefederation.org/documents/01.Are%20You%20as%20Guilty.pdf

 

How to Overcome Uncertain Treating Physician Testimony in Prosthetic Amputation Lawsuits

Posted on by Matt Hamilton

How to Overcome Uncertain Treating Physician Testimony in Prosthetic Amputation Lawsuits

Amputation cases, especially where a prosthetic is needed, present unique legal problems.  The amputee may presume the cost of future medical treatment is a certainty.  This is far from the truth.  A number of problems may rob the accident victim of their ability to pay for future prosthetic costs and other medical treatment.  This article teaches ways to overcome medical physician testimony problems.

Treating physicians often tell an amputee victims that the accident was certainly the cause of their injury. The Doctors will say they will “back them up” with whatever help they may need.  Once the lawsuit starts, and insurance companies ask questions, the doctors retreat.  Their testimony can even be harmful.  The primary method is the doctor appearing to support the patient; but in reality the Doctor’s testimony harms their patient’s legal needs.

Physician Failure to Understand the Legal Standard

The problem is the standard to get testimony into evidence in court.  Courts have requirements called “foundation.”  A witness may “say” something; but if what the witness says does not have a foundation, the jury or judge will not consider (or even hear) it.

Mixing “Certainty” up with “Reasonable Medical Certainty”

With physicians, this is the “reasonable medical certainty” standard.  For example, in Missouri, the Supreme Court ordered in cases like Swartz v. Gail Webb Transportation Corporation, 215 S.W. 3d 127, 130 (Mo. banc 2007), admissible evidence must be “to a reasonable degree of medical certainty.” This means it must be “more likely than not” or greater than 50% likely.

Herein lies the problem.  Physicians will quaff that they cannot say with absolute certainty or cannot be accurate in predicting what a patient will suffer or need in the future and therefore cannot say with certainty.  This will mean their testimony does not get into evidence and the amputee victim loses.

Dr. Jonas Rappeport, MD, wrote a lengthy article about physician uncertainty and legal testimony in 1985.  Reasonable Medical Certainty, Bull. Am. Acad. of Psychiatric Law, Vol. 13, No. 1, 1985.  In that article, Dr. Rappeport called the American legal standard a “legal fiction” and void of any practical meaning for physicians.  In essence, if a doctor cannot meet this legal standard, he is saying nothing at all.

Passive Qualifying Words

A second problem is physicians that give opinions, saying words like “might,” or “possibly,” or “could.”  Again, these are not opinions to “a reasonable degree of medical certainty” and may be excluded by a trial judge.  A Missouri court as early as 1965 addressed this.

The Court in Bertram, v. Wunning, 385 S.W. 2d 803 (Mo. App. 1965) considered the standard.  Herein, the court indicated that expressions like could, might, or possibly are common instances of language used by experts in the field.  The court recognized that as long as the physician indicates his opinions are to a reasonable degree of medical certainty, even though the physician may use qualifying language, the testimony is admissible.  Thus, the first problem with physician uncertainty is overcome.

The Uncertain Future of the Patient

A second problem is the uncertainty of future medical treatment or repercussions.  Doctors helping amputation victims cannot see the future.  Future treatment or negative outcomes may be dependent upon events that do not occur.  This second problem is physicians saying this may not occur unless one or two or three other events happen.  Therefore, they give the opinion they cannot say to a reasonable degree of certainty because they do not know the certainty of these future events.  This challenge can also be overcome.

Events that May Only Occur if Something Else Happens

The Missouri Supreme Court in the case of Bynote v. National Supermarkets, Incorporated, 891 S.W. 2d 117, 124-25 (Mo. banc 1995) addressed this issue.  The court ruled that evidence of future treatments and even its costs may be admitted before a trial court or jury.  The evidence can “come in” even when the medical treatment would be dependent upon the outcome of other events, such as more conservative medical treatment.

In Bynote, the court considered a victim that would only need the additional treatment, if they later began suffering a locked back.  Surgery was possible but not recommended by the treating physician.  Still, it was admissible as a possible future consequence.

The Missouri Supreme Court in the case of Breeding v. Dotson Trailer Repair, 679 S.W. 2d 281, 283 (Mo. banc 1984) considered a case where the patient did not want the surgery.  In Breeding, the accident victim testified they did not want surgery.  Furthermore, the victim’s physician indicated surgery would only be needed if and only if conservative treatment failed.  Still, since surgery was a possibility given future events, it was admitted.

This was later expanded in the case of Emery v. Wal-Mart Stores Incorporated, 976 S.W.2d 439 (Mo. App. 1998).

These are two ways in which uncertain physician testimony can be admitted so that an amputee can receive compensation for future treatment, even when it is uncertain or dependent upon other factors.

Look to other materials on our page for Amputation Lawyers and personal injury claims.

Author:

Matt Hamilton

  • Trial Lawyer
  • Juris Doctor

 

Five Reasons Why Insurance Companies Do Not Fairly Pay Accident Claims

Posted on by Matt Hamilton

FIVE REASONS WHY INSURANCE COMPANIES DO NOT FAIRLY PAY ACCIDENT CLAIMS

You always do the right thing when making decisions, right?  You are always fair minded and generous to people who are less powerful and in a vulnerable position, right?  People are generally decent, right?  Why is it, then, that insurance companies employing otherwise reasonable, fair-minded people do not give fair-minded value to the claims of innocent victims?  This article reveals five reasons why systematic undervaluing of insurance cases occurs.

  1. A MONEY MAKING ENTERPRISE

An overlooked motivating factor for low payouts on injury cases is our capitalist system for the insurance company.  Corporations are entities, even referred to at times as “persons.”  Insurance company corporations have one goal above all others:  to make the maximum amount of money for their owners.  Their owners are (typically) stock owners who pay money for stock shares and expect more money in return by way of dividends or increased stock value.  From the executive desk of the president down to common employees, this money motivating factor colors all decisions of businesses.  Insurance companies are no exception.

Insurance companies make money by charging their customers premiums.  They also make money from investing the money that is given to them and making dividends or profits on that money.  Insurers maximize profit by minimizing their expenses.  Paying money for insurance claims is a large expense of an insurance company.  The less that is paid out, the more money for their owners (the stockholders).

Insurance companies will deny paying more in payouts when the investment market is expected to do a down turn versus when money is to be made. However, in our experience, insurance companies do pay out differently for tax reasons, market force reasons, and investment timing.  One way or the other, capitalism, money, and timing influence the fair value by which insurers assess to your case.

  1. INSURER DELAY MEANS INSURER MONEY

You may notice the larger the insurance claim, the more time, procrastination, and delay the victim will experience.  This is no coincidence.  Remember, insurance companies do not handle just your claim.  Insurers handle tens or thousands of claims at any one time.  With any large population, emergencies for some claimants will occur.  Financial troubles will crop up for some claimants.  Some claimants merely drop out because of exhaustion.  This means that the longer an insurance company can delay a claim, the more people will drop out for various reasons that are personal to each person.

Even claimants that do not drop out, may take less than the full value of their case for similar personal reasons.  Some people merely get into a situation where they are desperate for money and will take whatever is offered.  The longer the delay, the more likely this is.

We talked in reason number one (above) about how insurers make money from investments.  Remember, the longer the delay in paying you, the more time the insurance company has to invest the money that the insurer would have otherwise given you.  Simply put, delay pays.

  1. THE DIFFUSION OF RESPONSIBILITY

We all feel guilt and negative emotions over decisions which harm others.  Nobody wants to be the “bad guy.”  We all like to point to the other person and say they are the “bad guy.”  Others will say they simply were one piece in the cog of a big machine and did not make the final decision.  This diffusion of responsibility is the genesis of many injustices perpetrated by insurance companies.

Remember, it is often the case that insurance claims are handled by many people.  If not just one person makes a bad decision; it is a group decision.  Guilt is diffused and can be blamed on others.  The executive office can order managers who can then blame the executives.  The managers can order employees who can then blame the managers.  Employees are large in number and can blame each other.  One way or the other, if no one person is at fault, no one person bears all the guilt.  This diffusion of responsibility is one way in which innocent victims with the insurance claims suffer further injustice through an unfair evaluation or a complete failure to pay a rightful claim.

Natural Selection in favor of Unfair Insurance Employees

Please also note there is a natural selection issue with respect to insurance companies.  Each employee will have employment responsibilities and guidelines.  It is often the case that an employee gets better evaluations and a superior work relationship when the employee makes more money for their corporation.

Employees that lose money for their company tend to be fired.  In an insurance situation, this means the less money is paid out to otherwise rightful claims; the more money the insurance company makes; the better the employee is viewed.  I have personally seen this attitude in my insurance adjuster acquaintances.  These are people that are otherwise good, well meaning, and have the victim in mind.  They simply get overwhelmed by the money and the desire to please their bosses.

  1. A DIFFERENCE IN VALUE OPINIONS

We all value our own family, our own friends, our own possessions and pets more than other people value them.  Each of us has a personal affinity for the things closest to us.  This creates a natural bias when those things are lost.  The death of your own pet is more important to you than the death of a stranger’s pet.

So too is it true with injury accident claims.  Your pain, your suffering, the accident’s effect on your life is more meaningful and valuable to you than a stranger.  This results in claims adjusters at insurance companies who simply don’t share your value for your suffering as a victim.  Therefore, insurance offers are made valuing an average payout rather than your particular experience.

Computers Affect Accident Claim Value

Computers are also the enemy of value!  Many insurance companies have specific proprietary programs, such as Colossus, originally made for Insurance.  These computer programs place values on many claims.  Like all computer programs, they make mistakes and are imperfect.  Insurance claim computers may simply fail to take into account all your particular circumstances.  Remember, these computers were built and paid for to save insurance companies money.  Their primary goal was not justice for an accident victim.

  1. TOO FEW VALUE HEROES

Full value of case is often reached only after attorneys are hired, litigation is handled, a jury trial ensues, and a decision is given.  Sometimes there is even an appeal!  With so few people taking the full journey, accident claim values overall go down.  This means even the few people that do go the distance see higher costs and less money in the end because they must make the added effort to “blaze the trail.”

It is understandable to identify with the people who take the money for less than full value.  We all have stress in our lives.  Few are highly experienced at insurance injury claims.  We all want the pride of handling a claim ourselves.  Unfortunately, this also tends to result in lower values for the claim.  So many drop outs create a bias on the part of those who pay the claims (the insurance companies and lawyers).  Insurers get accustomed to their own victories.  The failure of large numbers of people forcing full accident claim values creates an average value payout that is less than reasonable.

I hope these five reasons have informed you.  Others exist.  None of them are equally important.  However, remember that your decisions will also affect the justice that others will receive in the future.  Good luck!

 Author:

Matt Hamilton of Hamilton & Associates, Lawyers

  • Juris Doctor
  • Trial Attorney