A car injury claim involves a series of negotiations between the claimant (you) and the at-fault driver’s insurance company. To negotiate the highest possible settlement, you need to learn the process and terminology used by claims adjusters and attorneys.
Claims adjusters are expert negotiators. They use their expertise to baffle and frustrate unprepared claimants to get them to accept a lower settlement.
By understanding the claims process and legal terms, you’ll make it clear from the beginning that you won’t be taken advantage of. Let the adjuster know you’re prepared and committed to aggressively negotiating your car injury claim.
Speaking the Language
Most professions have terms and language with a unique meaning in their field. Attorneys talk about hearsay or reasonable doubt. Dentists use terms like root canal and gum disease. Architects work with load-bearing walls and roof pitches.
Although you may have heard these terms, you probably don’t have the knowledge to successfully represent yourself in a trial, cure an oral disease, or design a skyscraper.
The same principle applies in the accident insurance field. Claims adjusters use terms like duty of care, breach of duty, liability and damages. You’ve probably heard these terms in passing, but may not fully understand them. By learning these concepts and how they apply to your claim, you’ll be empowered to communicate with the adjuster on the same level.
The 5 Elements of a Car Injury Claim
- Define the other driver’s duty of care
- Establish how he breached that duty
- Determine negligence
- Prove liability
- Verify your damages
1. Define the Duty of Care
The driver of a motor vehicle has a legal duty to drive safely. If he drives recklessly, he breaches that duty.
Example: Obeying duty of care
Jim is observing all traffic signals while driving. He’s not speeding, texting, or distracted by his cell phone. He’s watching for other cars and pedestrians who may be trying to cross the road. Jim is driving safely while exercising his legal duty of care toward others.
2. Establish Breach of Duty
When a driver knowingly fails to drive safely, and that failure results in injuries to others, that driver has breached his legal duty of care.
Example: Breaching duty of care
It’s late at night and Sue is texting on her cell phone. She’s preoccupied with her conversation, and forgets to turn on her headlights when she starts her car. Jim is driving safely with his lights on. He’s about to turn at an intersection and looks both ways. He sees no cars and begins his turn. As he does, Sue crashes into him.
Sue had a duty to obey traffic laws, especially the one requiring headlights to be on at night. She also had a duty not to be distracted by texting. Jim would not have turned into the intersection if he’d seen Sue’s car coming. Sue wholly breached her duty of care.
3. Determine Negligence
Negligence does not include the intention to do harm. The harm is usually the result of being careless. When a driver breaches their duty of care, causing injuries to another person, the cause of the breach is usually the driver’s carelessness.
Example: Negligent driver
Sue’s failure to turn on her car lights wasn’t on purpose. She was distracted by texting on her cell phone, and forgot to turn on her headlights. It was her being careless that resulted in the crash.
4. Prove Liability
Liability is the legal obligation or responsibility for one’s actions. Once negligence is established, the next step is proving liability. In some cases, the degree of liability can be lessened due to intervening forces.
Example: Driver liability
Sue flipped the headlight switch, but the headlights didn’t come on because of a defect in the car’s electrical system. Sue is still negligent for continuing to drive with the lights off, but the car’s manufacturer may share some liability because of the electrical defect.
5. Verify Damages
Damages encompass the personal injuries and property damage caused by the accident. Damages can be verified through medical bills, physician records, repair estimates, and other supporting documents or photographs.
Connecting the Events
Before speaking with the claims adjuster, make sure you understand the above elements and how they’re connected. Look at them as pieces of a puzzle that fit together to form a complete picture. To effectively negotiate your claim, you must be able to move back and forth freely among the elements without confusion.
Organize and memorize the progression of events…
A duty of care exists for all drivers. In most car injury claims, when a driver breaches that duty, his actions are considered negligent. Once that’s established, liability is assigned to the driver. Once liability is assigned, all that’s left to prove is the amount of damages.
Example: Elements of a rear-end car accident
This example uses a simple rear-end collision to illustrate the different elements of a personal injury claim negotiation.
- Define the duty of care: You were stopped at a red light when a driver came from behind and smashed into the rear of your car. The driver had a duty of care not to follow too closely, and to apply the brake before hitting you.
- Establish breach of duty: While you were legally stopped at the light, the driver failed to stop and hit the rear of your car. (You’d present witness statements, police diagrams, photos, etc. to support your position.)
- Determine negligence: Witness statements and the driver’s admission that she was texting will prove negligence. The statements confirm the collision wasn’t intentional, it occurred because of her carelessness.
- Prove liability: No one else was driving at the time of the accident, and no intervening force pushed her car into yours. The driver was the only one responsible (liable) for the collision.
- Verify damages: You provide written documentation confirming the extent of your injuries and resulting costs. You clearly show the collision was the direct cause of your damages.
Calculating Your Demand
To calculate the amount you should demand to settle, total your medical costs, out-of-pocket expenses, lost wages, and an additional amount for pain and suffering. You can refer to more articles on InjuryClaimCoach.com for specific details and guidance on calculating your demand.
Putting It All Together – The Demand Packet
Now that you better understand the elements of an auto accident claim, you can enter into settlement negotiations prepared. The next step is to make your initial demand to the insurance company. You will create and send an indexed collection of all the documentation supporting your claim.
To build your demand packet, you’ll need:
- File folders with pockets
- Six or seven index tabs
- Good quality 8½ by 11-inch paper
- Two, 9 by 12-inch envelopes
Include the following items in your demand:
- Copies of your medical bills (insurance companies refer to them as “specials”). Place them in a folder with a tab labeled: SPECIALS.
- Copies of receipts for all your out-of-pocket expenses. Label that folder’s tab: EXPENSES.
- Written verification from your employer of the amount of your lost wages. Tab them as: LOST WAGES.
- A demand letter summarizing:
- The elements of the accident as they apply to the at-fault driver
- The total amount of specials, expenses, and lost wages
- The amount you demand to settle the claim