HOW DO CAR ACCIDENT CLAIMS WORK?
Last year, 60,473 traffic accidents were reported in Kansas. With so many occurring each year, car accidents are one of the most likely lawsuits an individual will be involved in. When an accident occurs, it is extremely important to gather information about the parties involved as soon as possible—generally at the scene of the accident. This is vital to ensure redress can be sought from those responsible. Below is an overview of when liability attaches and other important considerations for claims arising out of car accidents.
Negligence Claims
Kansas law requires all drivers to operate their vehicles in a safe and reasonable manner. A driver violates this legal obligation—or duty—when he or she becomes distracted from the road or acts in an unsafe manner, such as by speeding or following too close. If a driver’s carelessness causes an accident and injures an individual, the at-fault driver is liable for those injuries. However, if the unsafe driver gets lucky and no accident occurs—or no injury is suffered—there is no claim. This may be surprising, as it seems the unsafe driver gets away with placing others at danger, but the only remedy in such a situation is a traffic citation brought by the state, county, or city.
Another method of establishing negligence is through an action for negligence per se. This type of action is best looked at as a “shortcut” to establishing a legal duty by showing the defendant violated a law. The law can be a state statute, a local ordinance, or even a regulation. In addition to showing that the defendant violated the law and that violation caused injury to the plaintiff, two more things must be proven. First, the law violated must have be enacted to protected from the type of harm plaintiff suffered. This inquiry is fairly generic, though. The law must be intended to simply prevent a car crash, not the exact injuries plaintiff suffered (like a broken arm). Second, the law must have been passed to protect a person like the plaintiff. Again, a plaintiff can paint with a broad brush here by simply showing the law existed to protect another driver, a passenger, or a pedestrian: whichever class the plaintiff fits into.
Proper Plaintiff
Negligence claims apply to all individuals that could foreseeably be harmed by a defendant’s careless actions. This means that other drivers, pedestrians, and passengers—both in the defendant’s vehicle or other vehicles—can all be potential plaintiffs. For example, a defendant’s decision to drive while intoxicated foreseeably places all these individuals at risk of being harmed in an accident. It’s unlikely that others not using the road would be harmed, however. For example, if the driver hit a utility pole, causing a black out in a nearby neighborhood, which resulted in a homeowner falling down stairs in the dark, the homeowner would likely not be a foreseeable plaintiff and could therefore not recover.
Proper Defendant
Determining who is liable for an injury is also important. Any and all individuals that are a substantial factor in causing plaintiff’s injuries are liable for those injuries to some extent. Sometimes, the cause of the accident is obvious. An example of this would be when a single driver collides with a pedestrian legally and reasonably crossing the street. In other circumstances, it can be quite difficult to determine which individual or individuals are responsible. A pile-up crash is a good example. The very last car in the pile up fails to act reasonably by following too closely and strikes a car stopped just before it. If the chain reaction causes other stopped cars to collide, the first driver will be responsible for all those injured. However, the other drivers may also be responsible if they too followed to closely or failed to pay proper attention. Discovering exactly what happened will determine who is liable and this is can be a very complex task.
Two common occurrences concerning defendants are worth mentioning. First, a passenger in a vehicle is allowed to sue both a driver that carelessly causes an accident and the driver of the vehicle the passenger was in if both drivers were careless. Second, when a hit-and-run accident occurs, the injured party may be able to recovery from his own insurance company if he has purchased uninsured motorist protection.
Plaintiff’s Actions
Just as the actions of multiple defendants may each be a substantial factor in causing plaintiff’s injuries, the plaintiff’s actions may also be a substantial factor. When this is the case, the plaintiff will be found partially at fault for the accident. The effect of this in Kansas is generally a reduction in the amount of damages a plaintiff can recover. However, if the plaintiff is found to be more than 50% at fault, any recovery is barred.
Remember that even if a defendant is careless, he or she won’t be liable unless they actually cause injury to a plaintiff. What happens if a defendant’s carelessness causes the plaintiff to collide with an object or another driver? The answer depends on the particular facts of each occurrence, but simply because the defendant’s vehicle doesn’t collide with plaintiff (or her vehicle) does not automatically bar recovery. A defendant may quickly switch lanes in front of the plaintiff, leaving the plaintiff no choice but to collide with defendant. There, defendant is still the proximate cause of plaintiff’s injuries because his actions brought about the injuries. The same is true if plaintiff is forced to swerve into another car or object, such as a barricade. The jury will ultimately determine if plaintiff’s reaction to defendant’s carelessness was justified—meaning no fault is attributed to plaintiff—or was also careless—meaning some degree of fault may also be attributed to plaintiff.
Car accidents are a common occurrence. When the careless actions of another driver have caused you injury, there can be a lot of questions. Only by contacting capable and experienced legal counsel can all these questions be answered. An attorney will be able to look at the facts of your case to determine who you can recover from and ensure full, fair redress is recovered.
What makes a good car wreck case vs. a bad car wreck case?
Every case in which there has been a serious injury or a fatality should be thoroughly investigated by an attorney. We know a number of times where the police reports suggest that the events occurred one way and after looking at a matter and hiring an accident reconstructionist to evaluate what happened, it ends up that it was not the way the police initially determined. We are not in any way critical of the police, but many times they write a report based on the information that they have, the police also have limited resources and limited time. Our job is to be able to dig deeper in this case and hopefully get some information that they did not know. Every wreck that causes a serious injury or fatality should be investigated.
What generally makes for a viable personal injury case is a liability factor, whether it be a rear-end accident, somebody running a stop sign, or a red light, or somebody texting and driving. There are a variety of liability factors that play in to the analysis of whether a viable case exists. The second element would be the type of damages a person sustained. There could have been a collision in which nobody was injured so that would not be a viable case. There can be what appears to be a relatively straight forward rear-end accident at an intersection that resulted in catastrophic injuries, and that is something that should be evaluated and determined. We have to answer the questions like, why are the injuries so severe in what appeared to be a relatively straight forward wreck?
Those are the things that our firm looks at on a day to day basis. We evaluate the facts of a particular wreck and then evaluate the damages, whether it is the injuries involved, the medical bills, or the lost wages.
Advice For People Contemplating Self-Representation In An Auto Accident Claim
We hear people ask that question and the reality is this, personal injury attorneys practice this kind of law on a day to day basis and evaluate the facts of a wreck, the nature and extent of somebody’s injuries, medical treatment, lost income, and lost earning capacity, then present the claims to the insurance companies. Certainly a person is able to handle the claim by themselves, but the question is whether they will get treated fairly, and whether the insurance company will make sure that the compensation is absolutely fair or if they are going to try and take advantage of somebody that is unrepresented.
A person who hires a lawyer to present a claim or file a lawsuit will come out well ahead of where they would be if they handled the case on their own. Not to mention, a person that is injured in a wreck probably is going to seek medical treatment on top of trying to make sure that their families are taken care of. They might even try to make sure they can work, even if it is on a limited basis. The last thing that a person needs to be doing is worrying about fighting a battle with the adverse insurance company while they are trying to juggle life and getting better.
We typically tell clients that when they hire our firm, “here is this box of problems that my family has collected, related to this wreck and I am setting that box on your desk and now this is your problem, for you to take care of”. That way, people can focus on getting back to being healthy.
What Sets Your Firm Apart In Handling Auto Accident Claims?
Our experience on the other side of the table. We had been doing defense work for over a decade before switching sides and doing exclusively plaintiff’s personal injury and wrongful death cases. Also, we are not a firm where we dabble in different practice areas where one attorney in our office will handle divorce, then the next day a will, then the next day an employment matter, and then the next day a personal injury matter.
Each of the attorneys in our firm practice in a particular area for a particular discipline within the law. Personally and exclusively, I handle personal injury and wrongful death cases. This is what I do. This is what I focus on. I do not do divorce, nor child custody cases. I do not do employment or criminal law. My focus, my attention is always on cases that involve personal injury and wrongful death. That, coupled with my experience and knowledge of how the insurance companies and their lawyers work to deny or minimize claims, is a valuable resource for my clients.
What Are The Top Misconceptions About Auto Accidents?
One of the most significant misunderstandings that we as people believe, is that the insurance company, whether it be the other person’s or their own, are looking to take care of the injured person. The insurance companies and the lobbyists have been very successful with slogans suggesting that they are interested in taking care of people that are injured, but the majority of the time, that is not the truth. People think that our own insurance companies will take care of us. When somebody that was really nice calls us on behalf of the person that hit us and they say they are going to take care of all our medical bills and everything else, the reality of that is this: insurance companies make money by not paying out on the claims.
People have a misunderstanding when talking with a lawyer about their accident that this is going to be expensive. Most personal injury attorneys will offer a free consultation and talk with most everyone about their situation. We will ask questions; who was involved in the wreck? How did the wreck occur? Those type of things. This gives attorneys a better understanding of what the person is going through. An attorney can represent them and offer suggestions, and decide if an accident is worth further investigation.
What Are The Fault Laws In Kansas?
Kansas is a No Fault State. A lot of people think that means that it just does not matter who is at fault in an accident. Most times, the first conversation somebody has with the adverse party’s insurance company is this; Kansas is a No Fault State period, so always contact your own insurance company. The person thinks that this means that even though the other person was at fault they still need to contact their own insurance company. This simply isn’t true.
In Kansas, by statute a person’s own insurance carrier is required to carry at least $4500 in personal injury protection benefit, also known as PIP. That PIP benefit can be paid out as the primary source of payment for the first $4500 of medical bills. So the term No Fault really has nothing to do with the legal system or the civil justice system in terms of who is at fault, who pays, and who is entitled to compensation. It really has to do with the first $4500 of medical payments that comes from that persons own insurance company.
The Steps To Take After Being Injured In An Auto Accident
If someone was involved in a wreck, first and foremost, they should receive the appropriate medical care and treatments for any particular injuries. That should always be the first concern for someone that has been in a wreck and sustained any type of injuries. After receiving medical care, they should follow all of the advice any health care professionals give, whether it be the ambulance, emergency room or primary care physician.
Secondly, make sure that person has attained the names and contact information including an email address, phone number, place of employment, any witnesses to the wreck or anyone who was involved, or may have potentially useful information. Make sure that someone gets their contact information and a copy of the police report and any information associated with the police report, as soon as possible. It is strongly suggested that contacting a lawyer to discuss the investigation and the incident in further detail. Most of the times there is a reason why the wreck occurred. It may be inattention, whether it is texting, using a cellphone or looking elsewhere that distracted the driver. It is important to get a lawyer on board to investigate the circumstances as soon as it is practicable. From there, make sure that whoever was injured is doing everything that they can to get healthy as soon as possible.