If someone else is more at fault for your injury than you are, you may make a claim against that person or business and their insurance company, if any.
Personal Injury Video
If you've been injured and someone else is at fault for that injury more than you are, you may be able to make a claim against them. It might be a person, or business, and their insurance company. Many factors affect whether you are entitled to compensation because of an injury including the type of accident and the cause of the accident. So that brings up the question: what can I do if I have been injured? It is important that you become familiar with issues related to personal injury claims and your rights.
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If someone else is more at fault for your injury than you are, you may make a claim against that person or business and their insurance company, if any. The type of accident and the cause of the accident may affect whether you are entitled to compensation, as in the following examples:
Motor Vehicle Accidents
Fault or negligence is determined by traffic regulations and which driver’s carelessness contributed most to the accident and injuries, including your own conduct such as failure to use seat belts.
Commercial Accidents (such as in stores)
Injuries are compensable only if caused by an unsafe condition that the owner knew or should have known of and failed to correct before the accident.
Renters, owners, or residents may be found liable for injuries they caused by negligent maintenance, oversight, or attacks by pets; however, property owners who permit others to use their land without charge for recreational purposes may be completely immune to any claim for unsafe conditions, however flagrant.
Governmental Employees and Premises
Injuries caused by negligent public employees or unsafe conditions will be compensated only in limited circumstances and are subject to stringent notice and claim requirements. State, federal, and local governments are given broad latitude to determine most matters involving public safety, including the design and maintenance of roads, parks, and facilities.
Injuries at work generally are covered by workers' compensation benefits which compensate for medical expenses, lost wages, and permanent impairments, without regard to fault by anyone. If the accident was caused by someone other than the employer or a co-worker, a fault-based claim can be made against that individual which can include damages for pain and suffering in addition to the workers' compensation benefits you may receive.
Injuries inflicted on purpose by any means are generally not covered by the guilty party’s liability insurance, although the responsible party may be personally liable for such harm.
More complicated rules determine if injuries caused by dangerous products, the accumulation of ice and snow, faulty professional services, or public utilities will be compensated.
Will Any Insurance Policies Cover My Expenses?
Most automobile, homeowners and commercial liability policies contain medical payments coverage for medical expenses incurred after an accident without regard to fault. This coverage in auto policies applies to the insured family members and vehicle passengers, while homeowners and commercial policies cover only others or visitors to the premises.
Health, workers’ compensation, disability insurance carriers or HMOs usually will pay benefits arising from accidental injuries. However, if your claim against another person succeeds, the insurance provider will probably require you to repay these benefits to them. If the accidental injury is primarily your own fault, then only health insurance (such as through your employer), workers’ compensation, or medical payments coverage may apply.
Injuries arising out of a motor vehicle accident caused by an uninsured driver are compensated by your own uninsured motorist coverage (if you have it). Injuries arising out of a motor vehicle accident caused by an underinsured driver are compensated by your own underinsured motorist coverage (if you have it). Your entitlement to underinsured motorist coverage depends on the amount of coverage the underinsured driver has and the severity of your injuries.
Do I Need to Hire a Lawyer?
If you know for certain that your injury is a minor one that will not result in time lost from work or school or substantial medical care, you may want to settle it yourself in small claims court. In Iowa, this court handles claims up to $5,000. Of course, keep in mind, insurance claims adjusters generally try to settle claims inexpensively and in terms favorable to their insured.
If you have been seriously injured or are unsure as to the outcome of your injury, then an experienced personal injury attorney should always be consulted as soon after the injury as possible and before you give any statements or sign papers of any kind. You should be able to discuss your claim and the potential fee arrangements with your attorney before you commit to legal costs.
Personal injury attorneys usually handle claims on a contingent fee basis depending on the type, difficulty, and expense of the case. Contingent fees typically range from 25 percent to 33 percent. Contingent fee arrangements should be in writing and include provisions for out-of-pocket expenses, which typically must be paid by the clients as they are incurred throughout the case.
How Long Do I Have to Bring a Claim?
The law requires you to settle your claim, start a lawsuit, or give special notice within limited times after the injury. The time you have to take action depends on the person or entity that caused your accidental injury. Some Iowa statutes of limitations and notice requirements illustrate the complexity and variety of these rules:
- Personal injury generally - 2 years
- Claims against cities/counties/schools - generally 6 months
- Claims against the State of Iowa - 2 years
- Workers' compensation claims - 2 years from the date of occurrence for which benefits are claimed OR if weekly compensation benefits were paid, within 3 years from the date of the last payment of weekly compensation benefits.
If you have any doubt about the statute of limitations or notice required, you should consult an attorney. Other states may have shorter or more stringent limitations.
What is My Claim Worth?
A claim is valued and usually settled based upon an estimate of what a jury would likely regard as fair and reasonable compensation given the severity of the injury and the effects of the accident on your life, as well as the probability that a recovery against the wrongdoer is warranted. In addition to medical expenses and wage loss, you are entitled to money damages for your personal injuries, including pain and suffering, and loss of enjoyment of life. Your attorney may point out additional damages authorized in special cases such as dog bites or flagrant misconduct.
Severe injuries requiring substantial medical treatment, extended absences from work, and permanent physical or mental impairments may command substantial compensation. On the other hand, juries tend to believe that injuries that cannot be seen or demonstrated objectively are susceptible to exaggeration by the party seeking money damages, and insurance claim personnel tend to appreciate that fact. Settlement offers and jury awards for injuries of this nature often reflect this belief.
When it comes time to settle a claim, both sides should have a clear "before and after” picture of the injuries and how they have affected the injured person’s life. The difference between the "before and after” is the value of the claim. For example, a previously healthy, productive, young individual injured severely by an obviously culpable defendant will demand substantial compensation, especially where the injured person has undergone substantial medical care, incurred extended loss of earnings, and is facing a future of impaired earning capacity, disfigurement, and pain and suffering. On the other hand, the claim of an older person injured in questionable circumstances resulting in complaints that can be established only by the word of the claimant may be substantially discounted both by a claims adjustor and a jury.
If the injured person is found partially at fault for the accident causing the injury, then the amount of damages will be proportionately reduced; likewise, if there is a substantial chance that the claim may not succeed for any reason, then any pretrial settlement may be reduced.
When Will My Claim Be Settled?
If the person responsible for your injury has insurance, an insurance adjustor will gather and try to verify the necessary medical treatment records, medical expenses, and wage loss information. If the insurance company makes an offer that you (and your attorney) find acceptable, then the claim process is over. If no acceptable offer is made, then you may file a lawsuit. During the early months after a lawsuit has been filed, both sides can conduct discovery to obtain more details and exacting proof about the nature of the claim. Discovery may involve the taking of a party’s and witnesses’ depositions, propounding written questions on each party, called Interrogatories, and asking a party to produce certain documents and things, called a Request for Production.
As the trial date approaches, both the claimant and the insurance company usually take a closer look at the elements of the claim and available evidence to support it, and may try to settle the matter by informal discussion, mediation or pretrial conferences with the judge. Although about 9 out of 10 personal injury claims settle before trial, one cannot know in advance which claims will require a jury trial. Once a claim is put in suit, it typically takes 12 to 18 months to resolve.