It seems obvious. The car crash made your vehicle inoperable. Even the insurance company has agreed it’s a total wreck. It’s remarkable that you walked away unscathed. It’s even two weeks later, and you don’t feel a twitch of discomfort. You head to your lawyer to start a claim. What happens next surprises you.
You’re an honest person and have no problem admitting to your attorney that you were not injured in the accident. Tremendously inconvenienced, yes. And, furious that your beautiful car is beyond repair. You are confident that the insurance company for the other driver owes you some type of compensation. You then learn that your vehicle might get fixed under your own policy first. Depending on how the accident occurred, your automobile insurance carrier may make a claim against the other driver’s policy. If you’re lucky, you’ll get back your deductible.
Other money claims? Frankly, you can’t sue for personal injury unless you’ve been hurt. And, depending on your coverage, you may have some limitations. Let’s clear up some misconceptions many people have regarding auto accident claims.
The Top Five Myths about Auto Accident Claims
We know, your agent told you that you have “full coverage.” As attorneys experienced in handling auto accident claims, we’ve heard that phrase at least a zillion times. What does that really mean exactly?
- Property Damage: It’s a myth to think that the owner of another vehicle is necessarily responsible for repairs to your car. It will matter who was at fault in the accident. Also, your own insurance company can initially pay for damages if you have collision coverage.
What “full coverage” actually means in property damage terms is that the carrier will repair or replace your vehicle up to the actual cash value at the time of the accident. The number is rarely what you think the car is worth. The actuarial value of a used vehicle is set by industry databases, recent sales of comparable vehicles in your area, and the condition of the car at the time of loss. When the cost to repair exceeds a certain percentage of that actual cash value, the carrier declares the vehicle a total loss and pays the value rather than the repair estimate. Drivers who recently put new tires on the car, replaced the brakes, or paid for body work often discover that none of those improvements are reflected in the total loss figure. You may also have a claim for diminished value when the vehicle is repaired but is worth less after the repair than before the accident. The diminished value claim is separate from the repair claim and can be made against the at-fault driver’s carrier. Rental car coverage in your own policy pays for transportation while your car is in the shop, but only up to the daily and total limits the policy specifies, which are often modest.
- Personal Injury: We’ll repeat: You can only make a claim for personal injury if you’ve actually been hurt in an accident. This could include exacerbation of a preexisting condition.
Many injured claimants are under the impression that since they have “full coverage” they can also seek damages for minor injuries. Read our article on the differences between zero and verbal threshold options. Many consumers elect to pay a lower premium and are ultimately held to a higher standard when it comes to compensation for personal injury.
The verbal threshold, also called the limitation on lawsuit option, is the cheaper option that most New Jersey drivers carry. Under this option, a driver cannot recover for pain and suffering unless the injury results in death, dismemberment, significant disfigurement, significant scarring, displaced fractures, loss of a fetus, or permanent injury within a reasonable degree of medical probability. The permanency requirement is the one that affects most cases. Soft tissue injuries that fully resolve generally do not cross the threshold. Soft tissue injuries that produce lasting limitation usually do. Proving permanency requires a sworn certification from a treating physician served within sixty days of the answer in the lawsuit. The certification is a strict requirement and a missed deadline can damage the case. A treating physician’s casual report that the patient “may have ongoing symptoms” is not enough. The certification must speak directly to permanency within a reasonable degree of medical probability.
- No Insurance or Limited Insurance: Here’s another misconception. Maybe the driver who was responsible for your accident had limited or no automobile insurance. An experienced personal injury attorney can help review your policy to see if you have Uninsured or Underinsured Motorist.
Uninsured and underinsured motorist coverage is one of the most important and least understood parts of a New Jersey auto policy. UM coverage applies when the at-fault driver has no insurance or cannot be identified, such as in a hit-and-run case. UIM coverage applies when the at-fault driver has insurance but not enough to cover the damages. Both coverages are subject to the limits selected by the policyholder, which can range from the statutory minimum to a million dollars or more. The procedural rules for these claims are strict. Before settling with the at-fault driver and accepting the policy limits of the other carrier, the injured party must give written notice to her own UIM carrier and afford that carrier a chance to substitute its check for the at-fault carrier’s settlement. The notice is called a Longworth notice after the case that established the rule. A failure to provide the notice can bar the UIM claim entirely, even when the underlying injuries clearly exceed the at-fault driver’s coverage.
- Medical Bill Payment: There’s some confusion regarding the payment of your medical bills. There are a variety of resources for personal injuries caused by motor vehicle accidents. These may include your own car insurance or health insurance. If you do not own a car, but a family member in your household does, your medical bills may be paid by them. The list goes on to include state funds and workers’ compensation carriers.
The order in which medical bills get paid depends on the coverage selections in your policy. PIP is generally primary unless you elected to have your health insurance serve as the primary payer of medical bills. The election is made at the time the policy is purchased and many drivers do not realize they made it. Reading your policy declarations page identifies which coverage is primary. PIP has a deductible and copay structure. Most policies have a $250 deductible and a 20 percent copay until the deductible plus copay reaches the statutory threshold. PIP also has medical fee schedules that limit what providers can be paid. A medical provider who treats the injured driver and bills more than the PIP fee schedule allows can still seek payment from the patient unless the provider has agreed to accept the PIP rate as payment in full. Watch the medical bills carefully for balances that show up after PIP has processed them.
- The Blame Game: It’s a myth to think that you can’t be partially blamed and file a damages claim. The trick is the portion of responsibility. According to New Jersey law, comparative negligence determines the relativity between your negligence and the other person involved in the accident. As long as you were less than 50 percent liable for the accident, you can still recover damages.
The comparative negligence rule means that fault is rarely an all-or-nothing question. Both sides put on evidence of how the other contributed to the crash. The jury then assigns percentages. A plaintiff who is 30 percent at fault recovers 70 percent of her damages. A plaintiff who is 51 percent at fault recovers nothing. The percentage assigned can have a dramatic effect on the final number even when both sides agree on the gross value of the case. Insurance carriers know this rule and use it aggressively in settlement negotiations. The carrier may informally assign 40 or 50 percent fault to the injured driver and reduce its offer accordingly. The fault allocation is rarely as supportable as the carrier suggests, and a New Jersey Auto Accident Attorney reviewing the case can usually move the number significantly by presenting the evidence more thoroughly than the carrier’s adjuster did.
Three More Myths Worth Addressing
The myths above are the most common but they are not the only ones. A few others come up regularly in conversations with new clients.
“If the police didn’t give me a ticket, I cannot be at fault.”
The traffic citation is one piece of evidence. It is not the final word on civil liability. Officers make decisions at the scene based on what they observe and on the statements taken from the drivers. The carrier handling the claim does its own investigation. The jury, if the case goes to trial, applies its own judgment based on all the evidence. A driver who received no ticket can still be found partially or fully at fault, and a driver who received a ticket can still defend the civil claim successfully.
“I have to wait for my injuries to fully heal before I can settle.”
Settling too early is more common than settling too late. The pressure to take the carrier’s first offer comes from the carrier itself. The carrier knows that the injured driver is dealing with medical bills, missed work, and uncertainty about the future, and that those pressures push toward early resolution. The full extent of an injury is rarely clear in the first months. Soft tissue injuries that seem to be improving can plateau into permanent limitation. A herniated disc may need surgery a year after the initial diagnosis. A release signed in the first months wipes out all of those future claims for a fraction of what they would be worth at full maturity.
“If the other driver was a friend or family member, I cannot make a claim.”
The personal relationship does not affect the legal claim. Insurance carriers do not care about who knows whom. The claim is made against the policy, not against the friend or family member personally. Many family members are uncomfortable with this reality, but the financial consequences of declining to pursue a claim against a friend’s insurance can last for decades.
How New Jersey’s No-Fault System Actually Works
This is a no-fault state for medical payments. PIP pays for your medical bills regardless of who caused the crash, up to the limits on your policy. The system was designed to get medical care paid quickly without waiting for fault to be sorted out. Most New Jersey policies provide $250,000 in PIP coverage by default, but lower limits can be elected for a premium reduction. The lower the limit, the more likely you are to exhaust PIP and have to look elsewhere for payment of remaining medical bills.
Fault still matters for everything else. Pain and suffering, lost wages above what PIP covers, future medical expenses beyond PIP limits, and property damage are all controlled by traditional fault principles. The injured driver must prove that the other party was negligent and that the negligence caused the harm. Whether the injured party chose the verbal threshold or the no-limitation-on-lawsuit option affects the right to bring those claims, but the underlying fault analysis is the same.
Steps to Take After a New Jersey Auto Accident
The minutes and hours after the crash matter more than people realize. Call 911 if anyone is injured or if there is significant damage. Move your vehicle to a safe place if it is drivable. Check on everyone involved. Do not admit fault to anyone, including the other driver and the responding officer. Get the other driver’s license, registration, and insurance information. Photograph the position of the vehicles, the damage to both cars, the road conditions, traffic controls, and any skid marks or debris. Get the names and contact information of any witnesses before they leave.
Seek medical attention even if you feel fine. Adrenaline masks pain for hours and sometimes days after a crash. A medical record created on the date of the accident is invaluable evidence linking later symptoms to the incident. Skipping the initial evaluation gives the defense an argument that any later symptoms must have come from something else.
Notify your own insurance carrier promptly. You have a contractual obligation to give timely notice. Failure to notify can affect coverage. Avoid giving recorded statements to either your carrier or the other driver’s carrier without speaking to a lawyer first. Statements taken in the immediate aftermath are routinely used months later to challenge the claim.
Deadlines That Can End a Case
The general statute of limitations for a personal injury claim from a motor vehicle accident in New Jersey is two years from the date of the accident. The lawsuit must be filed within that window or the case is gone, no matter how strong the underlying merits.
PIP has its own deadlines, including prompt notice to the carrier and timely submission of medical bills. Most policies require notice within thirty days of the accident, although the deadline varies. Missing the PIP deadline can affect the obligation of the carrier to pay medical bills, which then become your responsibility.
UM and UIM claims have additional rules. The Longworth notice mentioned earlier protects the UIM claim by giving the carrier a chance to substitute its check before you settle with the at-fault carrier. The notice should be sent in writing and should give the carrier a reasonable opportunity to respond, usually thirty days.
Claims against public entities under the New Jersey Tort Claims Act, such as cases involving accidents with NJ Transit buses or vehicles operated by state agencies, require a Notice of Claim within ninety days of the incident. Missing that deadline can eliminate the case before it begins.
Questions People Ask After an Accident
Should I talk to the other driver’s insurance company?
You are not legally required to give a recorded statement to the other driver’s carrier. Most personal injury attorneys advise against doing so. The carrier is investigating the claim to limit its exposure, and any conversation will be used toward that goal. Refer all calls to your attorney once one is retained.
What if I have no health insurance and the PIP runs out?
PIP exhaustion is more common than many drivers realize, particularly when surgery is involved. Once PIP is gone, the medical providers may bill you directly, accept liens against the future settlement, or work through hospital charity programs. An attorney can help coordinate the providers and structure the bills so that the settlement is not consumed entirely by outstanding medical debt.
Can I get my deductible back?
Yes, in most cases where another driver was at fault. Your carrier will pursue subrogation against the at-fault carrier and recover the amount it paid out, including your deductible. The deductible is usually returned to you out of the subrogation recovery. The process can take months and sometimes requires follow-up with your carrier.
What if the at-fault driver fled the scene?
A hit-and-run accident is handled as an uninsured motorist claim under your own policy. Police investigations sometimes identify the driver days or weeks later through surveillance footage, witness reports, or auto body shop reporting requirements. If the driver is identified, the case can proceed against him and his insurance in addition to the UM claim.
Contact Us
Injured in a car crash and have questions? At the Law Offices of Anthony Carbone, we can provide you with experienced legal advice. There is no charge to meet with us. Contact us to set up a meeting.