FAQ - Personal Injury

What To Do Following An Accident

Auto accidents are unexpected and stressful. Even the most careful drivers may be involved. An accident can leave even the most level-headed person feeling overwhelmed and confused. Below are some steps you should take after an accident to ensure your rights are protected:

  1. Report the accident to the appropriate authority. Most of the time in Tennessee, the appropriate authority will be the local police and/or the Tennessee Highway Patrol.
  2. If you or anyone else is injured, seek immediate medical attention by either calling 911 or arranging for transportation to a hospital or doctor. Do not be reluctant to seek medical treatment nothing is more important than your health.
  3. Upon arriving at the hospital or doctor’s office, cooperate fully with the medical staff. Answer all questions honestly and completely. Ultimately, your past medical history may be reviewed by an attorney for the at-fault party, and you do not want to appear as though you were trying to hide any prior medical problems or other issues.
  4. Preserve the accident scene as much as possible until law enforcement arrives. If it is necessary to alter the scene to help someone who is injured, remove an on-going hazard, etc, then only alter the scene as much as necessary to address the situation. Furthermore, if you have a camera or a phone with a built-in camera/video, take pictures or a video of the accident scene including vehicles, hazards, etc.
  5. Do not discuss the accident with anyone other than the investigating officer, medical providers, your OWN insurance company and your lawyer. Do not post any photos or comments about the accident to any social media sites like Facebook, Twitter, MySpace, etc. Do not give any statements to the at-fault party’s insurance company. Instead, instruct them to contact your lawyer at….
  6. Exchange driver’s license and insurance information with the other party or parties.
  7. Obtain the names, addresses and phone numbers of any passengers or witnesses. If you do not have any paper or a pen or pencil, use your phone to send yourself an email or text with the relevant information. You can also use the voice recording mechanism on your phone to record information of witnesses and other parties…
  8. If any of the witnesses, passengers or other parties make any statements about the accident, make notes of those statements as soon as possible. Be sure to include the substance of the statement, who made it and when. Again, use your phone to record this information, if necessary.
  9. If possible, have someone measure or step off important distances such as skid marks and note that information.
  10. When law enforcement or other authorities arrive, cooperate fully with them. Be sure to report any injuries or suspected injuries to the investigating officer.
  11. As soon as reasonably possible, take photographs of your injuries. Since some injuries like bruises, abrasions, and swelling typically heal quickly, it is important to document them as soon as possible.
  12. Take photographs of the damage to your vehicle. Do not undertake any repairs until authorized by the insurance company and your attorney.
  13. Do not sign any documents or forms unless approved by your lawyer.
  14. Contact our office anytime of day or night at…

How do attorney’s fees and expenses work in personal injury cases?

At Shult’s Law we never charge a consultation fee to a potential personal injury client. Shults Law, along with most lawyers, charge what is known as a contingent fee in personal injury cases. A contingent fee is a charge based on a percentage of the recovery of money damages. The fee is “contingent” upon a monetary recovery, and means that if the case is unsuccessful there is no fee for the lawyer’s services.

Can an attorney forward money to me while I am waiting on the insurance company to make a settlement?

Under Tennessee law an Tennessee attorney cannot ethically pay for your living expenses or give you cash while your case is pending. A lawyer who offers to do so has committed an ethical violation and should be reported.

Can my statement in a police accident report be offered into evidence at trial?

Not in Tennessee state court. A Tennessee rule of evidence specifically excludes police accident reports from the types of public records that can be admitted into evidence at trial to show how an accident occurred.

However, a police officer who actually witnesses a wreck can be asked to testify about what he or she saw. He or she can also be asked about what the people involved in the lawsuit said after the wreck and about measurements taken at the scene of the wreck. But the police report cannot be introduced into evidence absent extraordinary circumstances, whether the officer is there or not.

What happens when the negligent drivers insurance is not enough to cover the amount of loss that has been incurred – can I sue that individual for the remaining debt that exceeded insurance coverage?

Yes. A person or company is always liable for all of the harm they negligently cause. A person purchases insurance to reduce his or her own risk of coming out of pocket to pay for that harm, but if the harm caused exceeds the amount of insurance purchased he or she is liable for the rest.

However, the problem is collecting from a person who causes harm. To make a payment to the injured person above the amount of insurance the person who causes harm must have assets, income, or both. Many people have very few assets and insufficient income to make a payment to the person who they hurt.

How long do I have to file a suit before my car wreck claim against the responsible party is no longer valid?

In Tennessee you ordinarily have one year from the date of an automobile accident to file suit against the responsible parties. Failure to file suit on time will result in a loss of your rights.

That being said, you should not wait until the eve of the one-year deadline to contact a lawyer. A lawyer needs time to conduct an investigation and do the paperwork necessary to file a lawsuit.

Should I attempt to settle my own personal injury claim without a lawyer?

Normally it is a mistake to try and settle your personal injury case on your own. The reasons are as follows: First, valuable evidence may well disappear in the days and weeks following an accident that you did not know was necessary to collect; Second, you will be negotiating with a experienced claims representative and attempting to place a fair value on yourself without any experience on how to do so. You may be seeking too much money for your claim – or too little; Third, settlement of a car accident claim frequently requires work with health insurance companies and health insurance providers to finalize the claim – this can be very complex.

Will the fact that an accident occurred in a parking lot effect my claim against the responsible party?

Not under Tennessee law. All drivers have the obligation to exercise reasonable care at all times, and that includes the operation of a vehicle in a parking lot or any other private property area.

It is very important that you obtain the names and contact information of the witnesses who saw the accident and make sure you hold on to that information.

What does it mean when my insurance policy states that the Under Insured Motorist coverage is $25,000/$50,000.

It means that for any one car wreck that is the fault of another driver who does not have any insurance your insurance company will pay you up to $25,000 in losses and damages you suffer.

If more than one person in your vehicle is injured in the wreck, the company will pay up to $50,000 to all of the persons in your vehicle who were injured and covered under the policy but no more than $25,000 for any one person.

Note that each person who is injured does not automatically get $25,000 – they must demonstrate amount of their damages and can recover up to $25,000 each.

Your policy will usually provide protection if the at-fault driver was underinsured. For example, assume that the driver that hit you was from another state and had a liability insurance policy that provided the driver $10,000 / $20,000 in liability insurance coverage. That means that for any one car wreck that was the other driver’s fault his insurance company will pay a person injured in the wreck up to $10,000 in losses and damages they suffer. If more than one person is injured in the wreck, the company will pay, on the at-fault driver’s behalf, up to $20,000 but no more than $10,000 for any one person.

If such a driver caused you $100,000 in damages, he would have insufficient insurance to pay you what you were entitled to receive under the law. He is underinsured for your claim. When it is proven that an underinsured driver caused your wreck, you have the right to insist that your uninsured motorist coverage to pay the rest of your damages up to the amount of your insurance coverage, minus the amount of liability insurance coverage from the at-fault driver. So, under this hypothetical, you could collect $10,000 from the at-fault driver and $15,000 from your own insurance company under your uninsured motorist coverage. (Your uninsured motorist coverage is reduced by the amount of liability insurance of the at-fault driver.) Unfortunately, you would be left with trying to recover the additional $75,000 from the at-fault driver personally.

What types of damages can be recovered in a personal injury case?

In most personal injury cases, you can recover monetary damages for medical bills, past and future physical pain and suffering, past and future mental or emotional pain and suffering, loss of earning capacity, disability, lost capacity for the enjoyment of life, and disfigurement.

These categories of damages are explained below.

Medical Bills
People injured by the negligence of another can recover the reasonable medical bills necessarily incurred as a result of the incident. To the extent that the injuries likely require on-going medical bills in the future, those future medical expenses can also be recovered.

Physical Pain and Suffering
Pain and suffering is physical discomfort caused by an injury.

Emotional Pain and Suffering
Mental or emotion pain and suffering includes anguish, distress, fear, humiliation, grief, shame, or worry.

Disfigurement
Disfigurement is a permanent injury that impairs a person’s appearance. This includes permanent scars and lost limbs.

Loss of Enjoyment of Life
Lost capacity for the enjoyment of life compensates the injured person for limitations put on the ability to enjoy the pleasures of life as a result of an injury. This includes the inability to engage in activities you once enjoyed.

Disability
Disability is the loss of your ability to do the same physical things that you did before you were injured.

Loss of Earning Capacity
Loss of earning capacity is the loss of your ability to work and earn money. It may be an amount equal to your lost wages as a result of the injuries you received in the incident. If you have suffered permanent injuries that affect your ability to work and earn money, it includes those monies you are likely to lose in the future because of your injuries.
The reason loss of earning capacity may exceed lost wages is because sometimes it can be shown that a person is earning a particular wage only temporarily and will be progressing up the income ladder.

Interest
If a trial is necessary, you win at trial, and the defendant appeals you can recover interest while the appeal is underway.  You can also recover interest if the defendant delays in paying you what you are owed. This is called post-judgment interest. The interest rate under current law is 10% per year.

However, under current Tennessee law, you cannot recover pre-judgment interest (interest on the amount of your losses between the time you incurred them and the time of settlement or trial) in Tennessee personal injury cases.

How does a jury determine the amount of money to award for pain and suffering in a personal injury claim?

The jury listens to the evidence presented by both attorneys and then the applicable law as explained by the judge and determines what they believe is a fair amount. Unfortunately there is no secret formula for determining how much money should be awarded for pain and suffering. This is a subjective amount, wholly determined by the jury.

Can I still collect damages for lost wages if I use accumulated sick leave and vacation time?

Yes. Under current Tennessee law, the law says that a person who caused the wreck and your injuries should not get the benefit of your employer’s sick leave policy. Thus, under what is known as the “collateral source rule,” the fact that you collected sick pay does not impact your right to collect for those “lost” wages in a settlement or trial.

You will need a statement from your employer listing the days you missed work as a result of injury to help the other driver’s insurance company evaluate your claim.

Do I need to be released from my medical doctor before we have a trial regarding my personal injury claim?

Most lawyers agree that in cases where there is an injury that is likely to completely heal or one that will reach a certain stable level within a reasonable period of time it makes sense to not have a trial until the doctor says you have reached your maximum medical recovery.

This is necessary because a jury must be able to determine whether it is likely you are going to have permanent injuries and whether those injuries will affect your income. Also, it is important that the jury have a handle on your medical bills, and it you are still actively seeking treatment it will be difficult to get a grasp on the amount of the bills you will incur.

However, there are several exceptions to this rule. For example, some people are hurt so severely that they are going to have active medical care for the rest of their lives. In those cases, the prudent lawyer will wait until the injured person has reached a level of recovery such that competent experts can render an opinion within reasonable probability what future bills will be incurred and what impact the injuries will have on the person’s life.

What is the meaning of “subrogation” in the context of my insurance company?

When your insurance company pays you for a loss caused by another driver, the company may recover the full amount of their payments made to you’re their insured from that other party (usually the at-fault drivers insurance company). You must repay your insurance company any amounts they have paid you if your claim against someone else is successful.

How much is my personal injury case worth?

First, you must understand that every personal injury case is different. It is important to understand that it is essential that another person or entity be at-fault before you can receive an award of compensatory damages or punitive damages. To determine whether someone was at fault and caused injury depends on the type of case, but suffice it to say that it is rare that the total circumstances of an event giving rise to an injury or death can be determined at an initial interview.

Second, injuries affect different people differently. Pre-existing medical problems can complicate the ability of a doctor to determine what injuries were caused in an accident and what was pre-existing. The severity of the accident impacts the ability to prove certain types of injuries. The amount of medical bills and lost wages is an important factor and many times those matters are unknown at the time of an initial meeting. Likewise, it is almost impossible to truly value a personal injury case while medical treatment is still underway. The reason being is because the full nature and extent of the injuries on the life of the injured person is unknown. If you would like to speak to one of our attorneys regarding your personal injury claim please call 800-300-4635

What is the process that an attorney goes through when working on my personal injury claim?

Every case is different and will progress differently. However, many of our clients are anxious to know what to expect, so we offer the information below to give you a general overview of the litigation process.

I. INVESTIGATION PERIOD
A lot of work goes into your case before the lawsuit is even filed. We conduct an appropriate investigation in every one of our cases. This may include a visit to the scene of the accident to take photographs and look for physical evidence, interviewing witnesses, gathering your medical records and bills, obtaining wage loss information, hiring experts, inspecting any product involved in the accident, researching the defendant (the person or company that may be sued) for prior claims, asset information, etc. The exact nature of our investigation depends upon the type of case, the facts of your individual incident and the deadline for filing suit. But, we believe a good pre-suit investigation will help us resolve your case quicker and maximize your recovery – usually in the nature of a fair and reasonable settlement.

II. SETTLEMENT EVALUATION STANDARD
Prior to filing suit, we will evaluate your case to determine if settlement is possible. Sometimes, it simply is not. For instance, if you still need to undergo surgery for an injury you sustained in the accident, it would be unwise to settle your case until the surgery has been completed and an assessment can be made about how well the surgery improved your condition. In other situations, settlement is not possible because there are too many unknowns. For example, if you hire us one month before the statute of limitations runs (the deadline to file your case), then settlement before filing suit will be unlikely – due to the fact that there simply will not be enough time for us to conduct a thorough investigation, gather your medical records and engage in meaningful settlement negotiations before your statute of limitations has run and we must file suit.

With all that said, rest assured, we routinely review your case to determine whether it is in the right posture to begin settlement negotiations and we will certainly do so before filing suit if you come to us early enough after your incident so that the necessary information can be gathered to know the value of your case.

III. IF SETTLEMENT IS IMPOSSIBLE OR UNREASONABLE
If settlement is impossible or the Defendant’s offers are unreasonable we will prepare a complaint to file with the appropriate court. A complaint generally does four things: (1) identifies the defendant; (2) sets out the facts of the accident; (3) states the theory of recovery (generally negligence) and (4) makes a demand for compensation. The complaint must be timely filed and well-drafted or it could be dismissed. Once the complaint is prepared, it must be filed with the appropriate court and a filing fee (around $300.00) must be paid. Under Tennessee law we are able to advance the filing fee on your behalf.

IV. AFTER THE COMPLAINT HAS BEEN FILED
After the complaint is filed, the defendant must be served with a copy of it and a summons by a process server. (A summons is a legal document issued by the clerk of court that formally notifies the person or the company sued of the case.) The summons and complaint can be served by the county sheriff’s department or by a private process server.
After the defendant is served with the complaint and summons, the defendant generally has a set time-frame to file an answer to the complaint. An answer is a written response to the complaint in which the defendant must admit, deny or deny for lack of knowledge each allegation in the complaint. The defendant must also assert any affirmative defenses in its answer.

Affirmative defenses are wide-ranging. Some typical affirmative defenses are: statutes of limitations, fault of a non-party, release or waiver, or the comparative fault of the.

V. DISCOVERY
Once all of the defendants have answered the complaint, discovery begins. Discovery is the part of the case in which each party is allowed to try and find information that will help them understand the strengths and weaknesses of their case. Discovery can take many forms: written discovery, depositions, medical examinations, expert discovery, etc.

VI. EXPERT WITNESSES
Depending upon the complexity of your case, expert witnesses may need to be hired. Experts can be hired on all kinds of issues. In a car accident case, we may need to hire an accident deconstructionist to help determine the speed of the other driver. In a liquor liability case, we may need a toxicologist to opine on the effect of a certain number of drinks consumed by the drunk driver.

Because most are professionals, expert witnesses can be expensive. Unlike many lawyers, at Shult’s Law Firm we advance the costs associated with expert witnesses and do not charge interest or otherwise mark-up the costs of hiring these experts.

VII. TRIAL PREPARATION
After discovery has been completed we begin trial preparation. After discovery ends, a party canfnot propound written discovery, notice a deposition, disclose additional experts or identify new witnesses without permission of the court. The reason for this is so the universe of information can be defined and the parties can begin to prepare their trial strategy without fear that new information may be uncovered which could alter a theory or otherwise damage the case.

Trial preparation has many parts and the most common ones are set forth below:
Subpoenaing Witnesses — Motions in Limine — Jury Instructions — Exhibits — Verdict Forms and Jury Interrogatories — Voir Dire – Opening and Closing Remarks.

Of course, as part of our trial preparation, we will also spend a tremendous amount of time developing a persuasive opening statement, clear and concise direct examinations of our witnesses and eviscerating cross-examinations of adverse witnesses and a compelling closing argument.