Over the years, we have written numerous articles aimed specifically toward readers who were either injured by the negligence of another party or the treatment providers helping the injured person in their recovery. But what happens if your patient is the at-fault driver for causing injury to another? What does the claims process look like from that perspective, what should your patient expect from their insurance company, and what can they do to protect themselves? This article will explore these issues and shed some light on the murky, intimidating liability claims process.
For purposes of this article, we will focus on a situation where your patient strikes another vehicle from behind in a motor vehicle collision (MVC), causing damage to both vehicles and injuries to the other driver. We will also assume that both drivers had valid automobile insurance in force at the time of the MVC.[1] The injured driver now has a claim against your patient, the at-fault driver, and is entitled by law to be compensated for their bodily injuries, damage to their vehicle, and other potential economic and non-economic damages. Your patient may now turn to their auto liability insurer to investigate, evaluate, and ultimately resolve the claims brought by the injured party.[2]
Claim Investigation
Even if your patient is the at-fault driver for the collision, it is still advisable to have law enforcement respond to the scene to investigate and document the facts in a police traffic collision report (PTCR). The next call your patient makes should be to their own insurance company to report the loss. Once reported, the claim will be assigned to a claims adjuster to investigate and verify the facts of the collision, gather information regarding property damage and bodily injuries, and ultimately determine who is at-fault. This process generally involves taking recorded statements from both drivers and any potential independent witnesses, obtaining a copy of the PTCR and photographs of the damaged vehicles, and obtaining medical records to document the injuries claimed.
Pre-lawsuit evaluation and claims settlement
Once the initial investigation has been completed, liability determined, and the property damage to both vehicles addressed, the injury portion of the claim is typically re-assigned to an adjuster more experienced in evaluating and resolving bodily injury claims. This part of the process may take weeks, months, or even years to conclude. Often, the at-fault driver has little to no further contact with their insurance company after the initial investigation is complete. Nevertheless, the liability/bodily injury adjuster will be closely monitoring and updating the claim by contacting the injured party (typically referred to as a “claimant”) or their attorney on a regular basis to obtain updates on treatment and recovery status and amount of medical expenses, lost wages, and other economic costs incurred to date.
If the claimant is not represented by an attorney, the liability adjuster will very likely attempt to settle the injury claim as quickly, and for as little amount of money as possible. Many insurance companies encourage adjusters to settle and close potential injury claims very soon after the collision occurred; often right after the claim has been assigned and initial contact made with the claimant. This is called a “first-contact” settlement. If the injured person does not take the bait and settle before their injuries and treatment are fully known, or if they have an attorney to discourage a premature settlement, the claim remains open.
The at-fault patient will rarely be informed of the claims process, if at all, regardless of whether the claimant has an attorney or not. Frequently, once the at-fault driver has reported the incident to their insurance company, given their statement of the facts, and had their vehicle repaired, they never hear anything more about the consequences of their negligence except for a possible increase in their insurance premiums.
A Word about Lawsuits
If the injured party, either on their own or through an attorney, is unable to resolve their claim through negotiations, they may resort to filing a lawsuit against your patient and any other individuals who may be potentially liable for the damages related to the MVC, such as the registered owner of the vehicle, or the parents of a minor child driver. Your patient is now a “defendant”. After the lawsuit has been filed, the injured person’s attorney must serve copies of the lawsuit to all named defendants or their agents. This is usually done by an independent process server, or less commonly, by local law enforcement personnel.
Your patient should expect this visit to occur at their home or place of work. They must then immediately contact their insurance company at the time of incident and provide the insurer with a copy of the documents as soon as possible to avoid a possible default judgment. Their insurer will assign the case to an attorney, at no cost to your patient, to defend the lawsuit. However, because of the potential conflict of interest in having an attorney paid by their insurance company and taking actions that benefit the insurance company over the patient, your patient probably should consult with a separate private attorney not paid by the insurance company to review the decisions being made. This is especially important to make sure your patient is not exposed to a possible judgment in excess of their insurance if the insurer refuses to settle, the case does go to trial, and the jury awards more than your patient bought in insurance coverage.
Once the lawsuit has been filed with the court and served on the defendant(s), the attorneys for the parties will engage in discovery, an “investigation phase” where parties request and produce information regarding the case through interrogatories, stipulations, and depositions. During this process, your patient will have to actively participate with their attorney in responding to questions asked, and in having their deposition taken by the plaintiff’s attorney.
Most lawsuits settle during the discovery phase. If a case does go to trial, your patient will be required by their attorney to appear, possibly testify, and be present during the proceedings. At the conclusion of the trial, the jury will deliberate and render a verdict either for or against the defendant(s), including your patient. If the jury finds in favor of the plaintiff and awards money damages, your patient’s liability insurer will be called upon to pay the judgment, up to the limits of their liability insurance coverage. If the amount awarded by the jury exceeds the limits of coverage, your patient will be required to cover the difference out of their personal assets. If your patient’s insurer had the chance to settle the case before trial within your patient’s policy limits, refused to do so, and a jury returned an excess verdict, your patient may have the right to file their own lawsuit against their own insurer for failing to act in good faith to protect your patient.
In short, your at-fault driver patients should keep these key things in mind:
- Avoiding a process server who is delivering lawsuit papers will actually cause more problems, as the process server may be forced into visiting your patient in places and at times that are inconvenient, or even embarrassing for this type of meeting;
- Insurers will not always act in the best interest of the at-fault driver. Your patient should be actively involved in learning how their insurer is protecting them from being personally exposed financially;
- Some, though not all defense attorneys, will not consult or communicate much with their clients, since the at-fault patient’s insurer reserves the right to make all final settlement decisions in the case. But your patient can exert influence over their insurer if they feel the insurer, or their attorney, is taking chances that could harm the patient down the road;
- The injured party’s attorney may be forced to reach out directly to your patient for help in serving lawsuit papers, finding out who their insurance company is, or letting them know their insurer is putting them at risk by not resolving a case before a lawsuit begins. Your patient should take these communications seriously.
If your patients ever have additional questions on what to do when they find themselves on “the other side” of a personal injury case, don’t hesitate to reach out to us.
[1] This, unfortunately, is not always the case, and would complicate immeasurably our discussion on the claims process.
[2] For more information and further discussion regarding liability insurance, and other types of coverage available through auto insurance, please see https://www.adlergiersch.com/provider-blog/insurance-the-myth-of-full-coverage/
