SHOULD I GIVE A RECORDED STATEMENT TO THE INSURANCE ADJUSTER ABOUT MY CALIFORNIA CAR ACCIDENT?

If you have been in a California car accident, the insurance adjuster has probably already called you asking for a recorded statement. You are probably wondering if you should give the recorded statement. In most California car accident claims I handle, I instruct my clients not to give a recorded statement.

They're Fishing For a Reason To Deny Your Claim

The reason I take this position is because it almost never adds settlement value to the claim. Rather, it gives the insurance company more opportunities to look for a reason to deny the claim. Additionally, if the claim does not settle and a lawsuit has to be filed, the insurance company will take a formal recorded statement known as a deposition. The harsh reality of car accident claims is that the insurance company is desperately looking for any reason to deny your claim, or find justification for offering you as little as possible to settle your claim. The only reason an insurance adjuster requests a recorded statement is to get an opportunity to pick apart everything you say to make you look like a liar.

It's Not Legally Required

Many clients have told me that the insurance company told them a recorded statement was required to process a car accident claim. Even if an insurance company says they require a recorded statement, there are no legal grounds for that position. The only time you are legally required to give a recorded statement outside of litigation is if you are pursuing an uninsured motorist claim against your own insurance policy. Most insurance policies require you to cooperate with an investigation of a car accident claim. Therefore, you are legally required to cooperate with your own insurance company by giving them a statement about what happened.

Be Careful If You Do It Anyway

If you choose to give a recorded statement, be very careful about what you say. The statement may be admissible in Court, and will definitely be used to question you in a deposition if a lawsuit is filed. When my clients give recorded statements, I advise them to talk only about facts. Never guess or give opinions about what happened.

Never be fooled by an insurance adjuster who pretends to be your friend. The job of an insurance adjuster is to pay out as little as possible for the hundreds or thousands of car accident claims they are handling.

Check With An Experienced California Car Wreck Attorney

If you are unsure whether you should give a recorded statement, please contact an experienced San Francisco car wreck attorney. While I highly recommend contacting me for a free evaluation of your claim, there are several other experienced attorneys in the area who also offer free consultations. Be sure you protect yourself by contacting an attorney to make sure the insurance company is not taking advantage of you.

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The California Trial Court Delay Act changed the way car accident cases are set for trial. Basically, it established criteria upon which cases should obtain trial settings. Within the criteria are options for granting trial setting preference. Injury and death cases are eligible to obtain early trial dates (trial setting preference) on mandatory or discretionary grounds.

The mandatory grounds upon which a California car accident trial should be assigned a priority trial date are when the injury victim is over age 70 and his or her health is such that setting the trial date early is necessary to prevent the possibility that they miss the trial. If evidence is presented that the injury victim qualifies, a trial date must be set within 120 days. (CCP §36(a) (1) & (2)).

Judges have discretion to grant trial setting priority on cases where an injury victim is terminally ill if there is clear and convincing medical documentation of serious medical doubt that an injury victim will remain alive beyond six months. Clear and convincing medical documentation requires at least one physician's signature attesting to the medical diagnosis and prognosis indicating the injury victim is not expected to live longer than six months. (CCP §36(d)).

Judges also have general discretionary grounds to grant trial setting preference. The legal standard for granting the trial setting preference under this theory is a showing “that the interest of justice will be served.” The Court considers the totality of the circumstances in granting trial setting preference. Examples of discretionary grounds include:

• Imminent running of the five-year dismissal statute (CCP §583.310);
• Party's debilitating disease;
• Party's impending departure and inability to return; or
• Loss of witness testimony.

When car wreck injuries are life threatening, many California Courts grant priority trial setting. This is usually under the discretionary authority of the Court. The argument supporting this ruling is that the interest of justice will best be served by allowing a serious injury victim to have his or her day in Court. If the injuries get worse there is a serious risk the victim will be stuck in the hospital during the trial. The greater risk is that an injury victim will pass away before trial. While the family of the injury victim will have a wrongful death claim, this change in litigants will ultimately squander judicial resources. Therefore, many California car accident trials concerning life threatening injuries are granted priority trial setting. Once a Judge grants priority trial setting, a trial date must be set within 120 days. There are exceptions which allow continuances of the trial date, but many times the trial will begin within 120 days. The best way to make sure your case goes to trial in a timely fashion is to consult with an experienced California car accident attorney.

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No. The physician-patient privilege restricts the insurance company from contacting treating physicians without a medical authorization allowing them to do so. One of the first things many insurance companies ask for at the beginning of a California car accident claim is a signed medical authorization. Typically, they ask for permission to access medical records for your entire life concerning anything you ever received medical treatment for. The medical authorization usually gives the insurance company permission to contact your doctors to discuss your treatment.

This type of medical authorization is improper and unnecessary. The insurance company should never be given a medical authorization until after a lawsuit is filed. Even then, the authorization should be limited to medical treatment related to the accident or treatment for the same type of injuries. Permission to speak with a treating physician should never be given absent a court order. Of course, the insurance company can schedule a deposition to talk to a treating doctor in front of a Court reporter with you present.

Most insurance companies ask California car accident victims who are pursuing their claim without an attorney to sign a medical authorization. As an experienced California car accident attorney, I can tell you that it is never in your best interest to sign a medical authorization for an insurance company prior to litigation. Unfortunately, many accident victims sign the medical authorization before they consult an attorney. Don't let the insurance company take advantage of you! Consult an experienced California car accident attorney before signing any documents or giving any statements to the insurance company.

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What happens if someone is injured by the driver of a stolen car in California? If the driver of the stolen vehicle doesn't have an auto insurance policy you can always make an uninsured motorist claim against your own insurance policy. But what if you don't have your own insurance policy, or if your claim will exceed the policy limits of your coverage? Then you look to whether you can pursue the insurance policy of the vehicle owner.

In California, a negligence claim can be pursued against the a vehicle owner if the driver was a “permissive user.” Clearly, a car thief is not a permissive user. In fact, California courts have held that even if the owner of a car carelessly leaves the keys in the ignition, he or she does not thereby give “permission” to third persons to use it. Archer v. Sybert, 167 CA3d 722 (1985).

After the Archer case, it became clear that California car accident victims could not recover from a car owners insurance policy when the accident was caused by a car thief. However, there are special circumstances under which the owners insurance policy may be liable.

The first “special circumstance” which will subject an owner to liability under California law is when heavy vehicles are left unattended and available for use by those not accustomed to driving them. Heavy vehicles are bulldozers, tow trucks, tractor-trailers, backhoes, and similar types of vehicles. California courts have held that the use of heavy vehicles by inexperienced operators poses a significant danger to society. Therefore, the owners of heavy vehicles have a duty to use due care to prevent injuries to others by misuse of their vehicles. If you are injured in California car accident by a stolen heavy vehicle, you may be able to pursue a negligence claim against the vehicle owner.

The next “special circumstance” which will subject an owner to liability under California law is when a vehicle is carelessly made available to children. California courts have suggested that an owner might be liable for leaving keys in an unattended car in front of a school.

The final “special circumstance” which will subject an owner to liability under California law is when a car dealer leaves keys in a car with the doors unlocked. Under this theory of liability the key factor will be the general practices of the car dealer. Typically, this type of case will fail. However, in at least one reported California case liability was found when the car dealer carelessly left the keys in a car, thereby inducing an intoxicated driver to operate the vehicle.

If you have been injured in a California car accident caused by the driver of a stolen vehicle, you should consult with an experienced California car accident attorney as soon as possible. Liability for this type of accident is extremely tricky. An experienced California car accident attorney can help you navigate the civil justice system to ensure you recover all the compensation you are entitled to.

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We’ve all seen the tv commercials offering quick cash on California injury claims. They promise quick and easy money to fix all of your problems. What they don’t show in the commercials is the amount of interest charged on these “loans.” With interest rates typically higher than 30%, many are beginning to publicly scrutinize the practice. As reported in the New York times, "It takes advantage of the meek, the weak and the ignorant… It is legal loan-sharking" said Robert J. Genis, a personal-injury lawyer in the Bronx who said that he had warned clients against borrowing. The Times piece documents the pitfalls of lawsuit loans for those who borrow, and can be read in full here.

A lawsuit loan is really a cash advance or investment in a California injury claim. This is also known as “no recourse funding.” All pre-settlement funding companies evade California lending laws by “investing” in lawsuits rather than loaning money on them. This allows the lender to charge fees and set interest rates without regulation. The lawsuit loan industry currently lends more than $100 million per year.   

Many California injury victims fall prey to this form of lending. The unfortunate truth is that a car wreck can cause a great amount of strife in the life of the victim. Many times a person injured in a car wreck is unable to work. Unlike a workers’ compensation claim, there are no lost wage checks coming until the end of the case. In some situations, injury victims lose their homes while their accident claim is pending due to their inability to work. This is what makes pre-settlement lawsuit loans so attractive to injury victims who are experiencing a tight cash flow. They are promised quick money now, and if their case doesn’t settle or win they aren’t responsible for paying back the loan. Thus, injury victims believe they have no risk in taking the loan.  

The other shoe usually drops when the settlement or verdict on the injury claim is reached. If a pre-settlement loan is involved, most injury victims receive little or no money from the claim because the interest on their pre-settlement loan takes it away. This typically leaves the injury victims in a worse position than they were in before the accident. It’s time to start regulating pre-settlement loans on California personal injury claims.

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If you are the victim of a California car accident, you’re probably wondering how you will be compensated. There are different types of damages available to cover most circumstances. Unfortunately, money damages will never put you back in the same position you were in prior to the accident. Money damages are the best compensation our legal system can provide to injury victims.

Many people want to know what their California car accident claim is worth. The answer to that question is different in every case, and usually can’t be answered until medical treatment has concluded or maximum medical improvement has been reached. This is because many of your damages cannot be determined until medical treatment has concluded. Even when the amount of damages can be determined, pain and suffering damages remain unclear. In that regard, pain and suffering damages are different for each person. As a California car accident lawyer, I typically help my clients determine a range of acceptable value for their injuries based on all of the damage types listed below.

Types of Damages You May Recover

Medical Expenses: Medical expenses are bills incurred to treat injuries from your California car accident. Some examples of medical expenses include: ambulance expenses, emergency room expenses, doctor fees, hospital fees, prescription fees, lab fees, x-ray fees, physical therapy fees, and chiropractic fees. To be recoverable, these expenses must directly relate to the injuries from your California car accident. If you have a pre-existing condition that is exacerbated by the wreck, the insurance company or their lawyer will attempt to claim your medical treatment is due to your old injury. 

Future Medical Expenses: In many serious California car accidents future medical expenses must be included. The sad truth is that most California car accident victims will never be put back in the same place they were in prior to the accident. Many injury victims will require medical care for the rest of their life. The cost of future medical expenses can be determined by medical experts and included as damages in California injury claims.

Pain and Suffering: In California, pain and suffering is the physical and emotional stress caused by your car wreck injuries. It’s very difficult to determine the value of pain and suffering damages. Typically the following things are considered: the extent of the injury, the severity of the pain, and the impact the injury had on the daily life of the victim. 

Lost Wages: If the injuries for your California auto collision keep you from earning the same amount of money, you may be entitled to lost wages. Lost wages may be recovered whether you are on light work duty or completely unable to work. If you were unemployed at the time of the wreck, you may still recover lost wages if you can prove that you could have earned wages if you weren’t injured.

Loss of Earning Capacity: In California, you may recover for lost earning capacity if you can prove that your ability to earn wages in the future has been impaired. Past wages will be used to determine damages.

This is a summary of the different types of damages available to victims of California car accidents. California law has many technicalities regarding what does and doesn’t apply to personal injury damages. The best way to ensure you receive all the compensation you are entitled to is to consult an experienced California car accident lawyer.

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Many people who suffer injuries for California car wrecks are unsure how to proceed with their medical treatment. More and more Doctors are refusing to treat injuries sustained in automobile collisions. This problem has been increasing in response to health insurance companies refusing to pay doctors for treatment related to car accidents. California injury victims are then put in the difficult position of finding Doctors who will treat them on a lien basis. This problem typically arises after the emergency room visit when car wreck victims are looking for follow up treatment, surgery, physical therapy, or chiropractic care.

Failure to Get Medical Care Can Reduce Damages in California Car Wrecks

It is common for California injury victims to give up seeking the medical care they need in response to difficulty finding a Doctor who will agree to treat them. However, this usually has a devastating effect on a California car wreck claim. Failure to obtain or continue treatment is used to deny or minimize auto injury claims. It can also be used in trial to prove that an injury victim is not entitled to recovery future pain and suffering damages. The argument insurance companies make is that pain and suffering compensation should be limited to the time period between the car wreck and the last date of medical treatment.

California Avoidable Consequences Doctrine

Failure to adequately obtain medical treatment can also be used to reduce all damages in a California personal injury claim under the avoidable consequences doctrine. This California law requires an injury victim to act reasonably to minimize their injuries or losses. Thus, damages cannot be recovered for increased or aggravated harm that could have been avoided through reasonable efforts or expenditures. Whether a California car wreck victim acts reasonably is a question of fact that is ultimately determined by a jury under California law. The jury can consider the following things to determine reasonableness:

• The risk involved in obtaining medical treatment;
• The probability that obtaining more medical treatment would have reduced the damages claimed;
• The pain and effort involved in obtaining more medical treatment; and
•  Whether the injury victim could financially afford obtaining more medical treatment.

The California avoidable consequences doctrine is designed to deter injury victims from seeking unnecessary medical treatment. Therefore, California car wreck victims are not required to minimize their damages by doing unreasonable or impracticable things. This law seeks to ensure that all injury victims obtain appropriate medical treatment and recover from their injuries.

How Can I Make Sure I’m Doing the Right Thing?

The best way to comply with the avoidable consequences doctrine is to follow the instructions of your Doctor, or the emergency room Doctor. If your Doctor says you need follow up treatment, be sure you get it. Additionally, seek the advice of an experienced California car wreck lawyer to make sure you are in compliance with the avoidable consequences doctrine.

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Many people suffer whiplash injuries as a result of a rear-end car accident. During this type of wreck, the head of anyone in the vehicle that was rear-ended is forcefully jolted back, and then forward, causing damage to the structure of both the front and the back of the neck. This kind of violent movement can lead to extreme stretching, compression and shifting of structures in the spine, ligaments, muscles, and nerve tissues, especially if twisting also occurs. Driving speed during a rear end auto accident does not determine the severity of a whiplash injury. Rather, the force at which the back and neck are jolted determines the severity of a whiplash injury. Many whiplash victims do not seek immediate medical treatment because they only feel shaken up and do not believe medical attention is necessary.

The movement of the spine is guided by neck vertebrae that are made of posterior joints called facets that link each vertebrae. The discs linking the bodies of vertebrae together are composed of a dense cartilage that covers a soft material in the center. These discs act as shock absorbers and spacers between the vertebrae. In a canal positioned between the body and facets of the vertebrae is the spinal cord. Spinal nerves leave the spine between the vertebrae and supply energy to the muscles and organs of the body. The nerves that exit from the neck are responsible for the entire upper extremity including the shoulder, elbow and hand, as well as structures of the head and neck.

Even at low speeds, the amount of force placed on the spinal cord in a rear-end car accident can be very strong and can cause damage to the ligaments, muscles, facet joints, discs, and spinal nerves. In additional to neck pain and immobility, symptoms of whiplash include headaches, nausea, vertigo, arm and shoulder pain, and tingling in the hands and fingers. Rear-end auto accident victims should get an x-ray as soon as possible to rule out the possibility of a fracture. However, in most cases whiplash injuries are mainly to soft tissues and joints.

If you have been injured in a rear-end auto accident seek medical attention immediately and consult an experienced San Francisco Car Wreck Lawyer to ensure you receive all the compensation you are entitled to.

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