Car Accident FAQs
1. I was just in a car accident. Should I call the police?
Yes. The general rule is to call the police. The police will document what happened in the accident, take statements from the drivers and witnesses, and may issue a citation. The officer is an independent third-party witness. Later the officer's observations and recollections may help you (even if the accident was your fault) if there is a dispute over how the accident occurred, whether anyone reported injuries, the health condition of the parties at the scene, admissions by parties, and statements of witnesses.
2. I was cited for the accident. Does that mean I don't have a claim?
Not necessarily. Sometimes officers wrongly cite one of the drivers. Since in most cases, the officer did not witness the accident, the officer is making a decision to cite a driver based on interviews of the parties and witnesses and perhaps the physical evidence. This is merely the officer's opinion and it is usually not admissible in a civil lawsuit for injuries suffered in the accident. In an injury case, a jury hears all of the evidence and makes its own determination, which could be quite different from the officer's. Also, see FAQ 3, below.
3. The accident may have been partially my fault. Am I out of luck?
Arizona is what is known as a "comparative fault" state. That means the jury decides the relative fault of the parties to the accident. Both parties may be found at fault, but one party may be found more at fault than another. Take the example of where a speeding car runs a red light and hits an on-coming car making a left turn. Under the law, the speeding car should have stopped at the light and the left-turning car should have yielded to make sure the intersection would be clear before turning. In this case, both drivers might be at fault. Occupants of either car can make claims and it will be up to a jury to determine the fault of the other driver. In such a case, the liability split might be 90-10, 50-50, or 10-90, or any other combination. Persons injured in an accident that involves "comparative fault," still have claims and may be able to recover substantial damages due to the negligence of the other driver.
4. The other driver's insurance company called and wants to take my statement. Should I give it to them?
No. You should not give a statement without speaking to a lawyer first. Your lawyer should then advise you whether you should or should not give a statement. If a decision is made to give a statement, your lawyer should be present with you.
The insurance company is not your friend. They have an interest in reducing the amount of money they pay out on claims. Their job is to get you to make statements and admissions that could be used against you later.
For example, it is routine for an insurance company to ask you how the accident happened. If you give one version at that time, but later make minor corrections or adjustments, the insurance company or its lawyer will use the discrepancies against you.
5. I need medical attention, but I do not have any health insurance. What can I do?
Many people injured in car accidents do not have health insurance. A hospital is required to treat any person who appears in its Emergency Room regardless of whether they have insurance. If you are injured and you need immediate attention you should go to the nearest Emergency Room. The hospital will bill you. It will also file a medical lien.
A medical lien is allowed by law. It permits medical providers to place liens upon the recovery an injured person might receive from those responsible for an accident or their insurance companies. This law is very helpful to people injured in car accidents who do not have health insurance.
Personal injury lawyers often help people without insurance find doctors and medical providers who will provide the necessary medical care on a lien. It is relatively easy to find medical doctors of all varieties who will treat an injured person on a lien. Likewise, lawyers can assist clients in finding medical providers who will provide physical therapy, chiropractic care, and diagnostic tests (such as x-rays, CAT scans, MRIs, EEGs, etc) on liens.
If you were injured due to another person's negligence and you don't have health insurance, a lawyer may be able to point you in the right direction.
6. The other driver did not have insurance or has a minimal policy. What can I do?
The other driver is still responsible to any person he or she injures whether they have insurance or not and whether they do or do not have adequate coverage. The problem is whether the injured person can actually collect damages from this person. Since sometimes this is not practical, for instance, where the other driver does not have substantial assets, there is another possible path.
If you have Uninsured or Underinsured Motorist coverage, you may be able to look to your own insurance company to recover for your injuries. Uninsured Motorist coverage is usually called "UM." Underinsured Motorist coverage is called "UIM."
When you bought your Arizona auto insurance policy, the insurance company, by law, was required to ask you if you wanted UM and UIM coverage. Uninsured motorist coverage kicks in when you are injured in an accident with a driver who was uninsured. Underinsured motorist coverage applies when the value of your claim exceeds the other driver's policy limits. For example, assume you have medical bills of $300,000 and the other driver only has a policy limit of $50,000. In this case, you can look to your UIM policy to cover the difference (up to your limits).
You may also have purchased Medical Payments coverage, sometimes called "Med Pay," when you bought your insurance policy. This coverage will pay for medical expenses you incur (up to your limits) in an accident, whether or not the other driver has insurance.
7. What types of damages am I entitled to?
You are entitled to a variety of different damages. If your car was damaged or totaled, you are entitled to recover property damage. You are entitled to recover your reasonable and necessary past and future medical expenses caused by the other driver. If you missed work, or will miss work in the future, you are may recover lost wages.
You are also entitled to what are called "general damages." This refers to the types of damages commonly termed "pain and suffering." But general damages also include loss of enjoyment of life, anxiety, inconvenience, and other mental and emotional components associated with an injury or recovering from an injury. Those who are injured permanently, may recover for having to live the rest of their lives with certain types of problems. A lengthy list could be made, but examples are: pain, scars, disfigurement, stiffness, inconvenience, embarrassment, etc.
8. What are punitive damages, and can I get them?
Punitive damages are a special type of damage. They are not compensatory. The damages discussed in FAQ 7 are compensatory. Compensatory damages compensate for a loss. For example, if you have $5,000 in reasonable and necessary medical bills, you should be compensated for that loss in the amount of $5,000. If you lost enjoyment from your life, you deserve to be compensated for that loss in an amount determined by a jury.
Punitive damages are meant to punish a wrongdoer. They are not awarded against people who are simply negligent - people who made mistakes. A person who runs a red light because he was not paying attention was negligent. He made a mistake. He did not do it on purpose. Punitive damages are not available.
Punitive damages may be available where the driver acts intentionally or so badly that his conduct is determined to be a conscious disregard for the safety of others. A person who intentionally runs a red light, may be punished with punitive damages. A person who drinks, drives, is DUI, and who runs a red light may have exhibited a conscious disregard for the safety of others. In that circumstance, an injured person may be entitled to punitive damages.
9. Do I need to file a lawsuit to recover for my injuries?
No. But sometimes due to circumstances, a lawsuit may be recommended. Most lawyers who handle injury cases generally file what is called a "Demand Letter" with the other driver's insurance company at the appropriate time. Depending upon the nature of the injury, it may be more practical to wait until a person has completed treatment before submitting a Demand Letter. This way all of the medical records and bills will be known, and it is easier to evaluate and value the person's injury claim. In cases where treatment will go on for a long time, or for the rest of the person's life, or future procedures are likely down the road, a Demand Letter that lays out all of the future issues and damages may be submitted.
A great number of claims resolve after a Demand Letter is submitted and negotiated.
10. Can I make a claim even if I was not wearing my seatbelt?
Yes. Arizona requires car occupants to wear seatbelts. If you are in an accident and not wearing your seatbelt, the other driver, or his/her insurance company, is allowed to argue that you would not have suffered injuries, or that the injuries you suffered would not have been as bad. Your damage award would then be reduced by the amount of damages caused by your failure to wear a seatbelt.
Let's look at an easy case to demonstrate how this works. A person not wearing his seatbelt flies out the front window of a car and breaks his arm on a sign post. The other driver would have a pretty good case to argue that while he did cause the accident, if the injured person had been wearing a seatbelt, he would not have broken his arm. Because the law chooses to place a burden upon occupants to protect themselves from injury, the other driver may not have to pay damages for the broken arm.
Now, let's look at a more difficult case. What about the man who is t-boned at his driver's door? The other car runs straight into him and forces him sideways. He hits his head on the inside portion of the door. Can the other driver show that the man would not have suffered these injuries if he had been wearing a seatbelt? Probably not. Even if he had been wearing a seatbelt, it likely that he would have hit his head on the door anyway.
An analysis like these must take place in every case where an injured person is not wearing a seatbelt. Many times not wearing a seatbelt is not a factor.
11. What exactly is negligence?
Simply put, negligence is the failure of a driver to use reasonable care. In other words, what would the reasonably person do under similar circumstances? The reasonable person drives her car at a safe distance from the car in front of her. The reasonable person pays attention to traffic so that she can stop her car without rearending someone. The reasonable person makes sure the lane to her right is clear before she switches into it. The reasonable person watches traffic signals and stops her car appropriately. People who do not act reasonably while driving, may be negligent.
12. Should I go through my insurance company or the other driver's insurance company for my property damage claim?
It depends. If the other driver's insurance company has accepted responsibility for the accident, it may be advantageous to submit the claim to that person's insurance company. This way you do not have to pay a deductible.
If there is a dispute as to liability or if the other insurance company is refusing to accept 100% liability or if the other insurance company is not acting fast enough, you may want to submit the property damage claim to your own insurance company. You will have to pay your deductable, but your insurance company may pursue the other driver's insurance for reimbursement of what they paid you, plus your deductable. This is called subrogation.
13. I am the victim of a hit-and-run accident. What can I do?
First, be sure to report the accident to the police. Second, check your insurance coverage to see if you have Uninsured Motorist coverage. In Arizona, victims of hit-and-run accidents can look to their Uninsured Motorist coverage for benefits. Your Uninsured Motorist policy will cover you even if you were a pedestrian or on a bike or motorcycle when you were hit.
14. I have been dealing with the other driver's insurance company on my own. The insurance company wants my medical records. Should I give them to them?
The best idea is to consult an attorney to answer this question. Usually an insurance company requests that you sign a number of authorizations allowing them to obtain your medical records. Sometimes they are addressed to specific providers you saw after the accident. Sometimes they are blank. The insurance company will use your medical authorizations to commence a seek and destroy mission. They will obtain every medical record they can get their hands on. Your records are a wealth of information. They contain the names of doctors and providers you have long since forgotten. The insurance company will use any information they find to track down all of your providers. Then, the insurance company will examine your records in an attempt to use them against you, to discredit you, and to deny or lowball your claim.
For example, an insurance company may find when you reported back and neck pain to a doctor 10 years ago. They may argue that at the time of your accident you had a pre-existing problem and that you are now trying to cash in. If you ever reported feeling sad or anxious, they may argue you have a mental condition and that the accident has caused a psychosomatic condition where you only think you are injured when you really aren't. They will find other irrelevant pieces of information and use them against you.
While perhaps some or all of your medical records are relevant and while perhaps you might eventually have to disclose them, the best course of action is to have an experienced injury attorney review them and deal with them. If not, it will be you against the insurance company and your medical records.
15. Even if I file a lawsuit, do I have to go to court?
Statistics show that only about 2% of all lawsuits actually make it to a jury trial. Most judges now order the parties to attend a mediation or settlement conference and many cases are resolved at there.
Additionally, many cases are "arbitration eligible." In Arizona, each county sets limits for arbitration. For example, Maricopa County's arbitration limit is $50,000. Attorneys have a general idea of the value of a claim before they file suit. If they don't, they usually have an idea of whether the amount sought will be higher or lower than the arbitration limit. The attorney certifies whether the case is or is not arbitration eligible at the time the complaint is filed.
If the case is arbitration eligible, it will not initially proceed to a jury trial. Several months after filing the lawsuit, the case will be heard before an arbitrator. An arbitrator is a practicing attorney who is selected by the court at random to act as judge and jury. The arbitrator hears the case in a more informal setting, where the Rules of Evidence are relaxed, and where witnesses are kept to a minimum. The arbitrator decides the case and enters a finding and award in favor of one party or another. Each side may then appeal the award to a jury trial.
The arbitration system has its flaws, but has proved successful in moving certain sized cases through the judicial system faster and more economically.
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