TV LAWYER: A lawyer who advertises on TV to solicit automobile accident cases. These lawyers may hire ex-insurance adjusters to handle your case under the 'supervision' of a lawyer.

INSURED: The person who purchased an insurance policy and who is entitled to its benefits.

COLLATERAL SOURCE RULE: This rule states that if you are paid for damages from another source, the defendant cannot deduct that amount from your claim against him. Examples of collateral sources are donations of time by a family member to nurse you or take care of your children and your home; or payment for medical bills that were already paid by your own health insurance; or the use of sick pay from your employer.

DECLARATION SHEET: A declaration sheet is given to the person who purchases automobile insurance by his own insurance company and it states what coverage was purchased, the amount of the coverage and the cost.

DEFENDANT: There are two parties in a lawsuit; the person suing is called the plaintiff and the person being sued is called the defendant. The term defendant commonly refers to the person who was probably at fault and will have to pay for the damages.

SUBROGATION: Health insurance companies will, if asked, pay under their policy for your injuries related to the automobile accident. However, they may request that you promise to reimburse them if and when you settle with the third party (that means defendant). That right of repayment is a subrogation right. It is always advantageous to make a claim with your health insurance company, because you might not ever have to repay them and if you do, it will be only a portion of what they pay you.

WHAT IS LIABILITY?

Whose fault was it? Our legal system wants to know who was at fault so we can know who is liable. The person who is liable or at fault usually has to pay the bills.

In Nevada, our liability system has been modified. We include the concept of comparative fault or comparative negligence in liability. Since an accident may be caused by more than one person, the people who caused it will pay for the damages. The determination of percentage of fault is a jury question. To recover damages, you must be 50% or less at fault as compared to the other parties.

WHO IS REALLY AT FAULT IN A CAR ACCIDENT?

Do you think it's your fault? Maybe not. Don't assume that the accident was your fault. There are many factors to consider besides what you might first think, like what the other driver has to say about the accident. Or what an accident reconstruction expert deduces from the evidence. And you should know what other witnesses will say. Evaluate all the evidence before you make any decision about who is at fault.

For example, if a person wasn't paying attention, he might not know if the light was red or yellow. Fault is not always clear cut and the other person might have been drunk or not paying attention, too.

Even if you are partly at fault, it's not your job to draw any conclusions about what percentage of the blame is yours.

You can be sure that whether or not it's your fault, the other person and his insurance adjustor will try to blame you for everything.

BENEFITS FROM YOUR INSURANCE COMPANY

If you want to know what coverage you have and you can't find your declaration sheet, ask your insurance agent for a printout.

Your insurance policy sets forth the situations where you will be reimbursed for damages. Generally your benefits will depend on what coverage you bought as seen in your declaration sheet, but that is modified by three factors:
1. your insurance contract, 2. Nevada State law and 3. how the courts interpret your insurance contract.

There are innumerable factors that will affect the interpretation of your insurance contract. Each of the following will need to be evaluated in light of the written contract language; whose car you are in when you are hurt, your adjuster, your insurance company, what you say or don't say to people who ask you about the accident, your past injuries, your present injuries and more.

Keep in mind that there is no definitive way to know what all your benefits are, but first look at your declaration sheet to see what you have (liability, med pay, property damage, collision , UIM). If you were working, file a claim with your employer. You may need to file a claim with your health insurance company. There may be coverage under your parent's policy or under the policy of the car you were driving if someone else owned it.

YOU MUST ASK FOR YOUR BENEFITS

You must report your accident to your insurance company to receive any benefits. But just reporting the accident isn't enough to receive the benefits to which you are due. Many insurance companies still refuse to pay medical benefits even when you ask for payment. Or they may tell you that the treatment was unnecessary and deny payment. You may think that insurance companies are glad to pay when asked, but they have a much different perspective. Some insurance companies won't pay until forced to do so by your lawyer.

Insurance companies are in business to make money and they don't make money by voluntarily paying their insured's; you or anyone else.

If insurance companies would attempt to voluntarily pay claims that were legitimate without being forced to, there would be little need for lawyers. The fact is that once you begin making claims on your insurance company, you become their adversary, their opponent. More than half the people I represent come to me because they are mad at the adjuster.

DEALING WITH YOUR COMPANY

Whenever you are asking someone to pay you money, they become your adversary. You can be sure that your company wants to pay you as little as they have to. Some insurance companies are fair when dealing with their insureds. To be safe, talk to a lawyer. Adjusters aren't going to seek revenge just because you talked to or hired a lawyer. If you want to deal with the company yourself, at least make a record of all phone calls to your adjuster and keep copies of all documents and correspondence. When making a record, write down the date, the phone number, the name of the person you talk to and the substance of everything that was said.

THE OTHER DRIVER'S INSURANCE- WHEN IT COMES INTO PLAY

Always consider making a claim with the other person's insurance company.

Adjusters are people just like you and me. The reason they don't give you a good settlement when you make a claim is simple. They think you will settle for less money when you don't have a lawyer. They think you don't know the value of an injury. They think you don't know how to negotiate. They think you don't know what your rights are. They think you don't have time to read 4,000 to 10,000 pages of case law and statutes every year so you will be prepared when you make a claim. They think you haven't read your insurance contract or the other driver's insurance contract.

And adjusters are right about one thing. If you don't have a lawyer representing you, you will get, on an average, 40% less than if you had a lawyer.

LOST WAGES

Most people don't know how to make a claim for lost wages. Even if you weren't working at the time of the accident, you may be entitled to make a claim. If you were off work, but your employer paid you anyhow, you should still be able to be reimbursed for lost wages under the collateral source rule. Finally, there are many factors to consider about making this type of claim. A few of those considerations are future time off work, termination, loss of raises, self-employment, unemployment compensation and lost opportunity.

DEALING WITH AN ADJUSTER

If your claim is small, maybe you should handle your own claim. You may think that a lawyer won't even be interested in talking to you. When I first talked to one client several years ago, she would have settled for $2,000 to $3,000 based upon her initial perception of the value of her injuries. Instead, she hired me and was able to settle the case for $75,000. The reason for the larger settlement was because medical problems develop later that were related to the accident. Had she settled without the advice of counsel, she would have lost almost $50,000.

It isn't unusual for small claims to turn into large claims when the truth becomes known about all the medical problems and costs related to the accident.

The rule is, "DON'T settle right away, for any reason." You say you need the money? That's not reason enough. Once you settle a case, the case is over. If you later have medical bills or if you miss work, it's too late to ask for more money.

My staff and I will talk to you about ALL aspects of your case, whether I decide to represent you or not. Most personal injury attorneys will be glad to discuss your case for no initial fee.

IF YOU'RE A PASSENGER- WHAT INSURANCE COMPANY DO YOU FILE A CLAIM WITH?

Passengers are in an excellent position to file a claim against the insurance company for all drivers and their own insurance company. Frequently, each company will refuse to settle and attribute the blame to the other driver. That tactic is designed to delay making payment; designed to earn interest on unpaid claims; and designed to force a smaller settlement. If you can't get the desired result, you have no choice except to sue them both.

Passengers should also consider making a claim under their own automobile insurance policy. Remember, it's okay to ask and if you don't ask, you won't get anything. Given a appropriate situation, you may be entitled to medical benefits.

A young lady was injured while she was being loaded into an ambulance. She filed a claim against the insurance company for the ambulance owner, only to discover that its insurance company went bankrupt. She talked to two lawyers and neither had any suggestions for her. I told her to file a claim under her own insurance policy for the medical pay and for her uninsured motorist coverage. She had $2,000 in med pay and $15,000 in UIM. We were able to get $17,000 for her because we demanded payment.

DUPLICATION OF BENEFITS

The most common ploy used by insurance companies is to deny payment under a policy because some other insurance company paid the bill. The insurance agent will tell you that you're not entitled to anything because it would be a duplication of benefits.

The easy answer to that is, "It depends."

WHEN YOU DESERVE TO GET PAID TWICE- BELIEVE IT OR NOT

In Nevada, but not in California, if you have medical pay coverage on the vehicle in which you are riding, you are entitled to have that money paid to you, regardless of payment of those same medical bills from your health insurance company. In a sense, you do get paid twice. But in another sense, you are simply being paid for the bet you made that you would be injured in a car accident. Think about it another way. If two people are injured in the same car in the same accident and one person has health insurance and another person doesn't, why should one person get medical pay benefits and not the other one? In fact, it would be foolish to pay one person and not the other just because one person had health insurance. That would effectively penalize a person for having or purchasing health insurance. This is another example of how the collateral source rule can be used to increase the amount of your settlements.

Nevertheless, because this issue can be confusing to most people, insurance adjusters deny medical pay benefits when they shouldn't. Even if you have Medicare Benefits , you should claim med pay benefits. However, you must sort out the issue of repaying health insurance companies for their subrogation rights.

HEALTH INSURANCE- USE IT FIRST TO PAY YOUR BILLS

If you will have your health insurance company pay your medical bills, then you can have your automobile insurance company pay the med pay directly to you instead of your doctors. You can use the med pay money to pay the deductibles that aren't paid by your health insurance policy. That will still leave you with some cash. You will probably need it if you missed some paychecks because you couldn't work.

MEDICAL PAY COVERAGE

This coverage must be offered on every automobile insurance policy sold in Nevada. If you weren't offered this coverage, then you may be entitled to the coverage even though you didn't pay for it. Your declaration sheet will tell you if you have this coverage and how much it is. If you're a passenger, you will first claim under the policy of the car you were riding in.

Med pay is probably the best buy for your insurance dollar. In my opinion, every car should have at least $25,000 med pay on it. Unfortunately, most people don't understand the value of this coverage until it's too late.

THE INSURANCE POLICY

There are at least two insurance policies that must be considered in every auto accident. From the perspective of the driver who is worried about being sued, his insurance company will defend him and pay up to the policy limits under the liability and property damage coverage.

From the perspective of the injured claimant who is innocent, who has medical bills and time off work, he will be claiming against the other insurance company for the liability coverage . By law, the minimum amount of liability coverage is only $15,000, although most policies are more. If $15,000 is all that's available and the claimant's damages are more than that, then he will want to make a claim against his own company for UIM (under-insured motorist coverage).

WHICH POLICY IS CLAIMED AGAINST?

If you settle a claim with a defendant's insurance company and if you later feel that you didn't receive a fair settlement for some reason, then you might be entitled to make a UIM claim under your own policy. But be sure to let your company know that you might be making a UIM claim and that you are settling with the defendant, before you settle. Otherwise, you might be prevented from later making a UIM claim under your policy.

IT'S A CONTRACT UNLIKE MOST CONTRACTS

Because the buyer of insurance doesn't have anything to say about the terms of the contract, the courts favor you, the buyer, when interpreting that contract. These contracts are called adhesion contracts. No one knows what they say and no one reads them except lawyers.

THE MOST COMMON PROVISIOINS IN AUTOMOBILE INSURANCE

LIABILITY COVERAGE

This is mandatory in Nevada and most states for a person to own and drive a car. This provides a source of payment to anyone whom you injure while driving your car. The amount of the coverage determines how much is available to pay for injuries.

UIM COVERAGE

UIM stands for Under-Insured Motorist and Uninsured Motorist. This isn't mandatory, but if you have it, then whether or not the other person has liability coverage, there will be a source of payment for you to claim against. Also, if the other person who hurts you only has $15,000 liability coverage, your own insurance company will compensate you up to the limits of your UIM coverage. If the other driver leaves the scene of the accident, then you may make a claim under this coverage too.

PROPERTY DAMAGE COVERAGE

This is also mandatory in Nevada and most states. It provides a source of payment to anyone whose property is damaged by you if it is your fault. Normally, this fund is used to repair your car if the other person is at fault under their policy.

MEDICAL PAY COVERAGE

This coverage must be offered and it can be used to pay for all reasonable and related medical expenses that result from an accident, but only for the people riding in the covered vehicle.

COLLISION COVERAGE

This coverage pays for your car whether or not you are at fault. If you aren't at fault, then you are probably better off collecting from the other party under his property damage coverage. This will depend on the insurance company you are dealing with and on how willing they are to acknowledge liability. It will also depend on how much each company is willing to pay for loss of use and cost of repairs.

SIIS-WERE YOU WORKING AT THE TIME?

If you are in a company vehicle, you might be considered to be "working" by the Nevada State Industrial Insurance System (SIIS). Whether or not you will receive any benefits will depend on the company's insurance policy and your own. I recently represented a person who was driving a company van and he was denied benefits with SIIS. He was able to claim med pay benefits with SIIS. He was able to claim med pay benefits because (1) he was not considered to be working and (2) the company had paid for the med pay coverage even though it was not listed in the declaration sheet.

Some police officers are entitled to these types of benefits when they are injured in their cars on the job. Unless they seek legal advice, thought, they don't usually get paid those benefits.

INVESTIGATION AND PROOF

Evidence gets lost if you don't make a conscious effort to record and preserve it. Not keeping receipts for every expense that might possibly be related to your medical problem is the most common loss of evidence. That's because most people aren't thinking about proving what their damages are.

What about paying the babysitter because you had to see the doctor? Or the cost of eating out because you couldn't fix dinner? Or the cost of the taxi because your car was being fixed? Or what about that expensive suit that was ruined in the accident?

Testimony is also evidence. If the witness who saw the other driver run the red light leaves town or forgets what he saw, then that evidence is lost.

The damaged vehicles are also evidence. If you have good clear pictures, you may be able to prove that your injuries were to be expected by the magnitude of the impact.

LIABILITY

You must determine who is liable before you can even make a claim for damages. Sometimes it is necessary to take measurements and photographs and even to hire an engineer to compute the forces involved. What you can't afford to do is ignore investigating liability even though you think you know the other driver was at fault.

PHYSICAL AND MENTAL INJURIES

Physical injuries aren't always easy to prove. You may have torn a ligament because your joint was twisted and pulled, but that's more difficult to prove than a broken bone. If you can't convince the adjuster that you aren't malingering, you won't be compensated.

The nature of medicine as an art and not a science contributes to misdiagnosis. According to studies at the Mayo Clinic, a medical diagnosis is only right about 30% of the time. Medical doctors attempt to "rule out" different problems by testing. However, it's common for doctors to disagree on a diagnosis.

Ultimately, it becomes your obligation to find the right doctor, get treated and to get well. Your lawyer should assist you in this journey by reviewing your progress with your doctor, chiropractor and physical therapist.

Because of the pain, you may find that you aren't getting sufficient sleep. Anyone who has experienced a regular loss of sleep will know that you will probably experience symptoms that are classified as "sleep deprivation." You may become irritable, easily angered and you may begin to fall asleep at inappropriate times and places. You may become depressed and unhappy. The point is simple. Physical injuries often cause psychological or mental injuries. If you don't know about these consequences, you won't be paid for that particular suffering.

FIXING YOUR CAR

Before you have your car repaired, you should have a mechanic inspect it for hidden damage, especially the shock absorbers in the bumpers and the alignment. That type of evidence can be easily lost forever once the car is fixed. If the forces involved are an issue, then detailed photographs should be taken to preserve the exact depth of damage to bumpers and fenders.

After you have preserved the evidence, then you should promptly get estimates of damage, both cosmetic and mechanical. There may be some situations where you will want to keep the entire car as evidence.

Finally, you will negotiate with either your own company or the other driver's company to be paid for the following items:

1. Cost of repair or replacement cost or the decrease in value of your vehicle due to the accident.
2. Loss of use of the vehicle for a reasonable time while it is being repaired.
3. Damage to property in the vehicle.
4. All other damages that naturally occurred as a consequence of the collision that relates to property damages.

If fixing your car costs more than your car is worth, then it is deemed to be "totaled." In that situation, there is no "one way" to determine its value. Usually the FMV (fair market value) or the price you can sell it for, whichever is less, is what you will get. You must convince the adjuster that your car could have been sold for what you are asking him to pay. You do this by telling him about the low mileage, the frequent oil changes and the new tires. If the car is really old and scarce, you might argue a higher value because it can't be replaced. You must ask the adjuster how he is determining the price of his offer and, with that information, you can usually argue that he should pay more for the items he failed to consider.

To negotiate effectively, find out the value of your car by looking for similar cars listed for sale in local papers. Look at a blue book listing for its reported value. If you had an extended warranty on it that can't be sold, then add that into your asking price. Be creative and start out with a demand to settle for more than you want without being too outrageous.

It is not a good idea to ask the adjuster for a quick settlement. He may think you are desperate for either the money or a replacement car. If what you tell him gives that impression, then the adjuster will give you a lowball figure.

TALKING TO A LAWYER

Personal Injury lawyers are specialists in dealing with all the matters discussed on this web site. In Nevada, specialties aren't recognized. However, if a lawyer advertises as "Practicing Primarily in Personal Injuries," it means that he spends at least 300 hours each year on these types of cases and has 10 hours of continuing legal education in this field.

You will probably be best served by a lawyer who spends the majority of his time handling personal injury matters. You need a lawyer who knows about medical issues and who understands the insurance industry.

Some people choose TV lawyers to represent them. There may be distinct advantages to hiring a lawyer who doesn't advertise on television. The State Bar of Nevada listed advantages for hiring a non-TV lawyer in "A Survey of Jurors' Attitudes Toward Attorney Advertising" in July, 1991. That research shows juries may not believe lawyers who advertise on TV as compared to those who don't. Apparently, 63% of the population hold a negative view toward attorneys who advertise on television. These attitudes may prevent successful litigation, because without the threat of going to trial, you don't get a fair settlement.

Probably the best reason to hire a lawyer is because he can get you a better deal than you can for yourself. Your lawyer has the power and the capability to drag the other party into court, a threat that you can't make if you don't have a lawyer. You should hire a lawyer who is willing to take your case all the way to the courthouse. If you do, then you should be able to negotiate a fair settlement without going to court.