Samuel Saks Article


Legal Issues and Insurance

Negligence. In a case involving an accident the key legal issue is negligence. The law of negligence is complicated and full of nuance. Put simply, negligence simply means the failure to act as a reasonable person should under the unique circumstances of the case, and those actions lead to injury or damages. As you may have noticed, this is a vague standard and leaves a lot of room for insurance adjusters (and attorneys) to argue.

In the context of driving, everyone operating a motor vehicle has a legal duty to drive safely and follow the rules of the road. Even once you prove that someone acted negligently, you still have to prove that their negligent actions caused damage or injury. This is known as “causation.” Causation is more complicated than it sounds. For example, if you negligently crashed into someone who had a heart condition, your negligent act did not cause or give rise to that person’s heart condition. It may have made things worse, but you can’t be held responsible for the condition in the first place. Similarly, if the damage or injury was inevitable no matter what you did, your negligence may not be considered the true cause.

Damage and Injuries. Another difficult issue is damage and injuries and how to put a monetary value on them. The law entitles victims of negligence to be made whole or paid so that they are in the same position that they were before the accident. There are several types of damages and injuries. For example, most accidents cause physical damage to the vehicles involved. If your vehicle is stuck in a repair shop for weeks, you suffer from a type of damage called “loss of use,” which is the hassle and expense of obtaining a rental or otherwise being without your vehicle. If the vehicle gets repaired the owner will likely take a hit if he decides to sell it; this type of damage is known as “diminished value.” Many accidents involve damages in the form of medical injuries to drivers, passengers, or pedestrians. This type of damage is known as “bodily injury.” Bodily injury is often the most complicated issue in an accident case.

Bodily injury involves not just medical issues about the nature and severity of an injury, but also pain and suffering. How can you put a monetary value on pain and suffering? How much money will compensate you for a broken leg, a scar, low back pain, a broken figure, or a bruise? There is no precise answer, which is why figuring out the true value of your claim requires experience and training.

Settlement and Recovery. Sometimes an insurance company will offer you a settlement payment in exchange for you signing a release. Releases are often complicated, but they boil down to this: if you sign it you will have no right to any further recovery for the accident or your injuries. In other words, you give up the right to file a lawsuit or seek additional money if your injuries turn out to be more serious than they seemed. This is why it is important to seek legal advice if you have any questions or concerns about a release. Most people do not have sufficient experience with accidents or legal issues involved to accurately determine the value of their case or what it is really worth. Some insurance companies will try to get you to settle quickly, offering you prompt payment in order to end the case. Even if you think the amount is fair, your medical providers may have recorded a “healthcare provider lien” that entitles them to payment of some or all of the money you get from the insurance company. A reputable attorney should be willing to give you free advice on whether the settlement offer seems fair or not under the circumstances of your case. Often it is valuable to have a second opinion to know that you and your family are protected.

This article is intended for informational purposes only and does not constitute legal advice or establish an attorney/client relationship.

Contributing Attorney: Sam Saks. Sam is the founder of Legal Aid of Arizona and a partner at the law firm of Cantelme & Brown, P.C.


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