Establishing a Claim
A personal injury claim in Georgia can be a complex process. When you or your loved one suffers an injury, the last things that you want to deal with are insurance companies, claims, and paperwork. Our team is here to help you with the whole process, from start to finish. You can count on us to make the process smooth and easy for you. We also know that it can be helpful to understand the process before entering into a personal injury claim, so we’ve provided an overview of what personal injury claim looks like from start to finish in the state of Georgia. The vast majority of personal injury claims reach a settlement before a lawsuit is needed, and even then the majority of claims resulting in litigation are resolved before an actual trial is necessary. The direction of a claim, be it settlement or litigation, depends upon several different factors ranging from mechanism of injury, monetary damages, future impact, and ultimately what your expectations are. The first step in making a personal injury claim, however, is to determine whether there is insurance coverage in place that will cover your claim and how much coverage is available. We do this by sending a notice of claim to the insurance company that includes the insured party’s name, policy number, your information, the date of the accident, copy of any police report, and a notification that you were injured and intend to file a claim. Once insurance coverage is determined, we can then help you organize your claim and file a claim against the at-fault party and in some instances when coverage is lacking, your own underinsured/uninsured motorist insurance coverage. A common misconception is that a personal injury claim is a lawsuit or requires suing someone personally. However, that is not the case, as nearly every claim starts out with a simple notification to the at-fault driver’s insurance company as described above. Even when a lawsuit is required, the claim still exists against the insurance company in most cases, not an individual.
It is important to document as much physical evidence pertinent to your claim as soon as possible after an accident. Photographs, statements, medical records, police reports, receipts, and other physical evidence are crucial to being able to piece together what happened, determine fault/liability, and begin laying the framework for a successful claim. Witnesses can also be very helpful to your personal injury claim if your case allows for them. If it is possible to take down a witness’s name and contact information, you should try to do so. Also, survey the surrounding area and take note of any possible surveillance cameras that may have captured the incident. We will take the time to talk through the accident with you and help you identify any potential witnesses or evidence that may have been overlooked, and then contact these potential witnesses and interview them to see if we can use their testimony to support your claim.
The next step after gathering evidence is determining fault. Georgia law follows a comparative negligence theory in tort claims, which is a fancy way of saying that in Georgia an injured person may have contributed to an incident in some way and still be able to collect for sustained injuries if that contribution was less than the other party’s. Damages may be lessened if a claimant is found to have contributed in some manner, but the claim is not completely lost. The general rule is that a person must exercise ordinary care to avoid another’s negligence but does not have an absolute duty to do so. In motor vehicle claims, pleading guilty to a traffic violation/citation, even simply paying the fine, can impute liability. That is not to say liability cannot be shown when a traffic citation is not issued to the at-fault party, just that a traffic citation and guilty plea helps in proving liability. If you believe you are not at fault, but have been cited in a collision, it is imperative that you consult counsel before pleading or paying any fines.
Once you have adequately treated for your injuries, and all evidence has been gathered, we will assist you in preparing what we call a settlement demand. This demand will be a detailed recap of the incident giving rise to your injuries, our theories of liability, a brief synopsis of your treatment, and a detailed version of how the incident has affected you on a personal level giving rise to pain and suffering, and a comparison of other incidents similar to yours. If lost wages or any other form of damages are present, those are described as well. The Demand then culminates with an offer to settle for an amount that you agree will adequately compensate you for your injuries, pain and suffering, and any other contemplated damages. The insurance company and the at-fault party will then be provided copies of the Demand and allowed 30 days to respond with either an acceptance, denial, or counter offer.
As mentioned, the majority of claims settle without the need for litigation. As part of nearly every settlement, however, are negotiations. Rarely, without aggravating circumstances such as drunk driving or willful acts, will and insurance company accept the initial amount demanded. Instead. they will usually counter with some amount less than that demanded. As with any negotiation, it is important to have a plan in place to adequately counter if that is the desire of the client or to understand what will occur if negotiations break down. At The Musgrove Law Firm, we pride ourselves on being skilled negotiators while simultaneously remaining respectful and stern in the process. Ultimately, if negotiations prove successful and the client is satisfied with the compensation proposed, the settlement will be finalized. If for some reason a settlement is not reached, we can stand ready to aid you in the next step of your claim.
Most claims do not make it into litigation, and many that do end up settling amicably out of court without ever seeing the inside of a courtroom. However, in those instances where litigation is necessary, we stand ready to litigate on your behalf. This process can often be lengthy and time-consuming, but we have the knowledge and experience to litigate successfully and to remove as much stress from your life as possible during the process. Litigation begins with the filing of a legal complaint in a court that has jurisdiction over the matter and service on the at-fault party (now termed “defendant”). In most cases that is in the county where the defendant lives/does business or the county where the incident occurred. Following the filing of the complaint, the insurance company for the defendant is notified and they provide counsel for the defendant. Thereafter, they have 30 days to “answer” the complaint against them, whereupon a process called “discovery” begins and lasts six (6) months. During discovery, the evidence is exchanged between the sides, and in most cases depositions or recorded statements under oath are taken. Following discovery, many cases will either settle or be directed toward mediation where a neutral party attempts to encourage settlement. If for some reason that does not occur, then we can begin readying you and your evidence for trial. After a settlement is reached there will typically be a short period of days where settlement paperwork is sorted out and signed. The settlement terms, outlined in a release proposed by the at-fault insurance carrier, will be sent to us for review, and if acceptable, provided to you for signature. During this period, we can also make sure all invoices, outstanding medical bills, and any liens that may apply to your claim are satisfied, and then disburse your settlement to you.
Q:How Long Do I Have to File a Personal Injury Claim?
A:All states have their own statute of limitations for personal injury claims, or a set length of time that injured individuals have to file a claim against an at-fault party. The state of Georgia has a statute of limitations of two years, meaning you have two years from the date of injury to file a claim and pursue financial compensation for damages. If you file a claim after two years have passed, you will most likely be unable to recover damages, even if you can prove that the at-fault party is responsible.
Q:Should I Speak to Insurance Companies After My Accident?
A:One of the many reasons why it’s beneficial to hire a personal injury attorney is that the attorney can handle all future correspondence with insurance adjusters. People usually think it’s harmless to talk with insurance adjusters after their accident, but in reality, companies often use what people say against them in their case to avoid having to pay them. If you have to speak with an insurance adjuster, it’s important to avoid admitting fault, offering your opinions, or saying anything that may be used to undermine your claim.