The Law and You

Automobile Accident Cases

THE LAW IN DELAWARE

Under Delaware law as in any other State in this Country, if you are injured by the carelessness of another person, you are entitled to be fairly compensated for your injury. Fair compensation includes an award of money damages for the injury itself, pain and suffering that have accompanied it, how long you have suffered or will suffer from the injury or any residual disability, and out-of-pocket expenses such as medical expenses and lost wages caused by the injury. These general rules apply whether you are injured while traveling in an automobile or in some other fashion, for example, through the carelessness of someone who fails to restrain a dog known to be vicious, by means of a defective product or machine, or through the carelessness of a professional, such as a doctor. In this section, we will be discussing certain aspects of injuries received in automobile accidents and how claims for such injuries are treated under the laws of Delaware.

MANDATORY INSURANCE

Under the laws of this State, a vehicle cannot be registered in this State unless it is covered by an automobile insurance policy providing two specific types of insurance coverage. First, the policy must provide liability insurance, covering the owner of the vehicle or anyone else driving the vehicle with the owner's permission. Delaware law requires such insurance to be, at least, in the amount of $15,000 per person and $30,000 per accident. What this means is that the insurance must be available to pay up to $15,000 compensatory damages to any person injured through the carelessness or negligence of the owner or a permissive driver of the vehicle. The policy must also provide, at least $30,000 in liability insurance available for all persons injured in any one accident involving the vehicle to claim against. We refer to these minimal policies as 15/30.

Delaware insurance policies must also provide what is known as No-Fault or PIP insurance. PIP stands for Personal Injury Protection. Under PIP, any person occupying the insured motor vehicle and any person injured in an accident involving that vehicle except the occupant of another vehicle, is protected against medical bills and lost earnings for up to two years following the date of the accident. Again, the legal minimum for coverage of this sort, which is required by law, is $15,000 for any one person and $30,000 for all persons injured in any one accident. In addition to covering medical bills and lost earnings, PIP coverage will also reimburse an injured person for what is referred to as "extra expenses for personal services which would have been performed by the injured person" if they have not been injured. Such "substitute services" include things such as household cleaning assistance, and household repair or maintenance that would otherwise have been performed by the injured person.

In some limited circumstances, PIP coverage will cover losses outside the two year period following the accident but only if the losses are related to surgical or dental procedures related to the accident that were impossible or impractical to perform within the first two years after the accident. Such anticipated surgical or dental procedures must be verified in writing within two years of the accident by a doctor or dentist.

PIP coverage is also available to the named insured and members of their households who have been injured while a pedestrian in an accident with any motor vehicle other than a Delaware insured motor vehicle. In addition, PIP coverage is available to the insured and members of his/her household for any injury suffered while occupying any registered motor vehicle other than a Delaware registered motor vehicle as long as the accident occurred in the United States, its territories, possessions or Canada.

As you can see, PIP insurance is very important to you if you have been injured in an automobile accident caused through someone else's fault. It will pay your medical bills and your lost wages, without regard to fault, subject to the limits of the policy for up to two years after the accident. Clients sometimes ask me why I need to make a claim against their own policy when the other party was the one at fault. They believe that this doesn't seem fair. There are several answers to this question. First, the law in Delaware requires that lost wage and medical bills claims be first presented to the PIP carrier for the injured party. This actually proves advantageous to you because you need not argue with the PIP carrier about whether the accident was your fault or the other party's fault. In addition, after it has made payments to you under the PIP coverage, your carrier will, in certain circumstances, be able to be reimbursed from the insurance coverage available to the other driver who was at fault in the accident. PIP is known as "primary insurance" in that automobile injury claims need to be presented as above under PIP coverage even if medical bills could also be covered under the injured person's health insurance policy. In fact, it is to the injured party's benefit to present those claims to PIP since PIP has no right to charge those expenses back against the injured party in the event of a recovery against a third party. On the other hand, if medical bills of an injured party are paid by his/her health insurer, most of the time that health insurer will have a right to be paid back if the injured party is compensated by a claim against the responsible party.

UM AND UIM

We refer to Uninsured Motorist coverage and Underinsured Motorist coverage on your insurance policy as UM and UIM coverage. Uninsured Motorist coverage is coverage providing the protection that its name implies. Its coverage must be offered to you by your insurer under Delaware law, although you can decline it. Not buying UM coverage or UIM coverage is a big mistake. First, the coverage is relatively inexpensive and, secondly, if you ever need it because you are involved in an accident with an uninsured motorist or an underinsured motorist, you will be glad the coverage is there. Simply stated, if you are in an accident with an uninsured motorist, or with a vehicle that flees the scene so its driver cannot be identified, your UM coverage steps in and acts as if it were the liability coverage of the other driver. Under Delaware law your company must offer you the opportunity to purchase as much UM coverage as you have elected to purchase liability coverage. In other words, if you elect to purchase $100,000 in liability coverage, your company must also offer you the opportunity to purchase $100,000 in UM coverage. We recommend purchasing the maximum amount of UM coverage that your company will sell to you because it, again, is relative inexpensive and very valuable if needed. Underinsured Motorist coverage, as stated above, then steps in when the other driver does not have "enough" coverage to fairly compensate you for your injuries. However, UIM coverage is subject to one technical limitation -- to qualify as an underinsured vehicle, the other driver must have less insurance liability coverage than you do protecting you if you were careless. Therefore, if you have $100,000 in liability insurance coverage and a $100,000 UM/UIM policy, and you are injured by a driver with only $15,000 in coverage, if your injury is severe enough, you may be able to make a claim against your UIM coverage, at least after you have exhausted the other driver's $15,000 in liability coverage. Put another way, if you suffered an injury that was "worth" $100,000 and the other driver only had $15,000 in liability coverage for you to claim against, you would first make a claim against that $15,000 policy and be paid that amount in return for releasing the other driver for further liability. You then would have an opportunity to pursue your own Underinsured Motorist coverage for the remaining $85,000 in damages which you suffered.

Many insurance policies which provide UM/UIM coverage, have clauses in them which require any disputes under the coverage to be decided by arbitration. The typical UM/UIM policy providing for arbitration requires a three person arbitration in which each side picks one of the three arbitrators and then those two persons pick a third "neutral" arbitrator. Arbitrations are best described as "mini trials". Often times they are held in the office of the neutral arbitrator and the injured person any relevant witnesses attend the hearing and actually testify before the arbitrators. Generally, evidence of testimony regarding medical issues -- the nature of an injury or its treatment are generally submitted to the arbitrators through submission or the medical record of the injured person as well as through any letter opinions written by treating physicians. At the conclusion of an arbitration (typically lasting only 2-3 hours compared to a trial of 2-3 days for the same issues) the arbitrators meet in private and decide upon the award. Until recently, most arbitrations under UM/UIM insurance policies were binding -- that is, there was no right of appeal by either side from an award of the arbitrators. Recently, more and more insurance companies have started providing that arbitrations under the UM/UIM provision of their policies are not binding and may be appealed by either side if dissatisfied with the award.

THE CHRONOLOGY OF AN AUTO ACCIDENT CASE

Typically, we will see a client not long after he/she has been injured in an automobile accident. The first issue which must be addressed concerns the accident itself. What are the facts of the case? Whose fault was the accident? Was the accident investigated by the police? Did either driver receive a ticket by the police? If the other driver received a ticket was he/she convicted of the charge either at trial or after a guilty plea? Recall, that unless your injuries are caused by the fault of another person you have no right to seek compensation from the other driver.

Next, what are your injuries? Did you seek treatment immediately after the accident at the Emergency Room or with your family doctor? What injuries has your physician told you you have suffered? What treatment has the doctor ordered? have you notified your insurance company that you were involved in an accident and that you were injured? Having received such notice, he insurance company will send you a claim form for PIP benefits if you incurred medical bills or lost wages.

CONTACTS WITH THE OTHER PARTY'S INSURANCE COMPANY

Many times an insurance adjuster for the other driver's insurance company will contact you even before you have had an opportunity to speak with a lawyer. They often explain that they need to speak with you so they can determine the extent of any compensation which you might be entitled to. They generally are very friendly in approach and often will discourage you from speaking with a lawyer. DO NOT LISTEN TO THEM. THEY ARE NOT YOUR FRIEND AND THEY DO NOT HAVE YOUR INTEREST AT HEART. THEY SIMPLY WANT TO LIMIT THE EXPOSURE OF THE OTHER PARTY'S INSURANCE COMPANY IN TERMS OF DOLLARS. THE LESS THEY CAN PAY YOU, THE BETTER THEY HAVE DONE THEIR JOB.

We are happy to review your case at no charge to you. If we believe that you have a prosecutable claim against another driver and that the other driver has sufficient assets or insurance for your to claim against, or if UM or UIM insurance coverage is available to you to fully compensate you for your injuries, we will agree to take your case. In that instance, your job is to treat with your treating physicians and to follow their recommendations regarding your rehabilitation and return to work, if your injuries have prevented you from working. Our job is to make contact with the liability insurance carrier covering the other driver -- in the first instance so they will stop bothering you. Next, we will write for the police report, if any, surrounding your accident and we will also make contact with the treating physicians and therapists to secure medical records from them concerning your treatment. Do not expect your case to conclude within 1-2 months. The main reason why we would normally not recommend trying to settle your case within the first several months after your accident is that after the passage of such a short period of time, no one, including your doctor, will be entirely sure whether and to what extent you will recover from your injuries. Rather, we recommend waiting at least a year following the accident before we attempt to make a final determination regarding your injuries so that we might prepare to attempt to settle it. Coincidentally, the medial profession generally likes to wait at least a year before issuing an opinion regarding whether or not your injury and any limitations caused by it are permanent. During that period of the year or perhaps even two years, your job continues to be to treat as directed by your physicians. We also ask that you keep us up to date on what is going on during your treatment and how you are doing. Our job continues to be one of pulling in medical records to stay on top of your treatment.

If you retain us to represent you in presenting your accident claim, note that no lawsuit is filed immediately. Under Delaware law you have up to two years following the accident within which to file a lawsuit. As we approach the two year deadline, if it becomes obvious that your case will not settle shortly, we will often file a lawsuit simply to "protect" against the Statute of Limitations. If we do not file prior to the two year anniversary of the accident, you would lose your right to pursue a claim against the responsible party. Even once a lawsuit is filed, there is no prohibition against settling the lawsuit. Lawsuits may be settled at any time before or after filing suit including even after a jury verdict.

Most of our cases are filed as what are called "Arbitration" cases. Under the laws of the State of Delaware, if your claim is for $100,000 or less, it must be filed as an arbitration case. This is what we refer to as "statutory" arbitration or sometimes "Rule 16" arbitration after the number of the Rule imposing the requirement. Rule 16 arbitration takes place not long after a lawsuit is filed. Unlike UM arbitration, it is not binding and unlike UM arbitration it is conducted before a single person chosen, most of the time not by the parties but appointed by the Court. The arbitration process itself is quite similar to that as outlined above as UM or UIM claims with the distinction, as noted, that the arbitration award is not binding. If it is not binding, many people ask us why it is necessary to go through the process at all. The theory behind the Rule is that it is helpful to have an independent third party place a value on a claim. The parties can choose to accept the value determined by the arbitrator or reject it but either way it may assist the parties in settling the case.

Again, arbitrations under Rule 16, like those conducted in UM or UIM cases, proceed relatively quickly. Following a Rule 16 arbitration you will receive a written decision from the Rule 16 arbitrator within five days. At that point, each side has 20 days within which to decide whether or not to "appeal" the decision. If neither side "appeals" the decision than the award becomes binding and the case is over. If, however, either side is satisfied with the award, than the case will proceed to trial in the Superior Court of the State of Delaware as if the arbitration had never occurred.

THE CONSORTIUM CLAIM

Under Delaware law, as in most other jurisdictions, the non-injured spouse of the person injured in an automobile accident has a claim as well. This is so because the law recognizes that when one party to a marriage is injured, the marriage itself is "injured" in that there are spill-over effects impacting the other spouse. For example, if a wife is injured, her non-injured husband may have to pick up the slack in terms of household chores she would normally perform. If the situation is reversed, the uninjured wife may have to pick up the slack in performing household chores the husband would normally perform. Either way, there is recognition of the impact on the uninjured spouse and the law permits a claim to be made in their name as a consortium claim as a claim for "loss of consortium". Loss of consortium also includes any impact the injury might have in terms of normal marital relations. Some people are hesitate to present consortium claims because they are concerned about any inquiry into the nature of their relations with their spouse. I always counsel that this is not a concern that should be weighed heavily. Most importantly, if you desire a consortium claim to be limited to impact of activities of daily living and not marital relations, we simply will not pursue it in that area. Having represented injured Plaintiffs in a variety of different settings over the years, I can honestly say that I have never had a client whose concerns about unwarranted intrusion into their sexual life came to pass in the context of a consortium claim.

WHAT TO DO AND WHAT NOT TO DO

Once you have retained us, we ask that you not discuss your case with third parties, particularly the insurance adjuster for the other side. In addition, we ask that you retain copies of all medical bills that you have received which relate to your accident injuries and provide us with copies of them in a timely fashion. Also, if a doctor prescribes a new form of treatment for you or has otherwise provided you with "new" information regarding your care, it is important that you advise us of this as soon as possible.

LEGAL FEES

If we represent you on your accident claim, we do so in return for a fee of one-third (1/3) of any gross recovery received on your behalf in addition to any costs we have incurred for you. As a case progresses, we often times will advance costs for a client on the agreement that we will be paid back by the client.

WHAT ARE COSTS

In the routine handling of an automobile accident file, we incur costs for certain third party services such as fees imposed by a police department for a copy of the police report, fees imposed by medical providers for copying medical records. If a lawsuit is filed there is a fee for filing the lawsuit payable tot the Court and if sworn statements or depositions are taken, Court Reporters have to be paid. Costs generally are not a large factor in any case, even though in which litigation has been filed unless the matter goes to trial. At trial, it is often times necessary to call as witnesses your treating physicians. Routine charges for doctors' appearances at trial are in excess of $2,000 per doctor. In any event, our contingent fee agreement provides that if and only if you recover we receive a fee of one-third of your gross recovery. In addition, you agree to re-pay any costs we have advanced on your behalf whether you make a recovery or not. Again, costs really only become an issue in terms of presenting substantial numbers in the event a case proceeds to trial. Cases handled without filing litigation often times have costs, even after a year or two of less than $200.

HOW DO YOU DETERMINE WHAT MY CLAIM IS WORTH?

In the first instance, your claim for an injury inflicted through the carelessness of another person is never worth the money you receive for it. You will always be shortchanged even if you receive a great deal of money because dollars can never adequately compensate you for a permanent physical injury or impairment. That having been said, it remains the only way, in a civilized society, we can fairly compensate an injured person for the carelessness of another and in addition, the only way we can adequately deter others from similar acts of carelessness. Determination of a fair award for a particular injury is not an exact science. Some of the things we consider in evaluating a case for settlement purposes or a jury or arbitrators consider in making an award of compensatory damages are the nature of the injury, the length of time of the acute phase of the injury, whether or not the injury is permanent, and the disruption of your activities of everyday living. Though it is almost impossible to resist the temptation to do so, we urge you not to put too much stock in conversations with relatives or friends who claim to have suffered injuries similar to yours who want to tell you how much your case is worth. First of all, whatever damages they received in their case will have no bearing on what you receive in your case. Next, there is no guarantee their circumstances were identical or even similar to yours. Finally, awards from other jurisdictions or States vary widely from awards being made in Delaware. What is most important or similar awards being made here in Delaware. We believe we have a good handle on what the "market" is for certain injuries here in Delaware and can assist you in determining a fair value for your case with which to work in settlement negotiations.

FREQUENTLY ASKED QUESTIONS

1. You haven't said anything about damage to my automobile. What about that?

ANSWER: If your vehicle is damaged in an accident through the carelessness of another you have a right to claim property damages against that driver just as you have a right to present your claim for physical injuries caused by that driver's carelessness. At least in cases of clear liability -- where it is clear that the other driver was at fault and you weren't -- the other driver's insurance company will often times attempt to negotiate a settlement with you or your legal representative very early on in the case. The problem comes when your view of the damages to your car is inconsistent with the offer being made by the other driver's insurance company. For example, they think that your car has sustained $1,500 in damage and your repair shop has given you an estimate for $2,500. In that case, the best thing to do is to have the repair shop speak directly with the insurance adjuster. Often times they can settle the difference and reach an agreed upon payment for the work to be done promptly. If neither you nor your repair shop can reach an agreement with the other insurance company, if you have collision insurance on your car, you can always present the claim to your own insurer under that collision coverage. Many times people find that their own insurance company is slightly more liberal than the other driver's insurance company in fairly settling a damages claim. Of course, you will be out the deductible on your collision policy while there is no deductible assessed against a recovery made against the other driver's insurance company. After your collision carrier has paid for the damage to your car and had the car repaired or even paid you for the car if the car was totalled, it will attempt to collect back from the other insurance company the amount of money it paid out plus your deductible. Since collision coverage payments are made without regard to fault, this is also helpful in the case where the other side is balking about paying because they claim the accident was your fault.

2. What about a rental car?

ANSWER: As explained above, in cases of clear liability, the other driver's insurance company will often not only offer to pay for the repair of your vehicle but will also pay for a rental car for at least a short period of time pending the repairs. They offer to do this, particularly before you have consulted with an attorney, because they want you to think they are your friend. THEY ARE NOT! There is no reason not to accept the offer of a rental car from the other driver's insurance company but it should not lull you into a false sense of security in believing that they are looking out for your best interest.

3. Whether the other side is paying for the repair of my vehicle or for a rental car, are there any things I should not sign?

ANSWER: The best policy is to sign nothing until our office has reviewed it. However, generally we will agree that it is permissible to sign documents evidencing the property damage claim and release of the property damage claim where you are satisfied that portion of the case has been concluded. This can be done without jeopardizing your claim for damages for bodily injury.

4. My doctor keeps sending me for therapy or treatment and I really don't seem to be getting any better. I really cannot afford the time for this treatment. What should I do?

ANSWER: I have an agreement with the doctors. They don't practice law and I don't practice medicine. However, I can tell you that generally it seems to me as a common sense proposition anyway that your doctor knows more about medicine than you do and if he/she recommends treatment you would be well advised to follow the recommendation. I do recognize that there are times when patients get very discouraged with the lack of progress in their treatment and, in fact, simply cannot afford to miss the time from work for treatment that is not getting them anywhere. In the end, you control the nature and course of your treatment, not your doctor, and certainly not your lawyer. However, I can tell you that if your doctor has prescribed therapy which you have not pursued, the first thing the insurance company on the other side will argue is that you must not really have been injured anyway.

In the end, you have to make the decision.

BACK