Automobile Accidents

This article covers:

• Do I need to notify my own insurance company if its the other guy’s fault?
• Should I notify the other guy’s insurance company?
• Who should I notify if I am injured?
• Should I cash any checks from any insurance company sent to me to cover my damages?
• To whom should I send the doctor / hospital bill for any treatment I receive for injuries arising from an auto accident? Who pays for my or my family’s medical treatment following an auto accident?
• What should I do or say if the other guy’s auto insurance contacts me?
• How do I know if I have a case against the other guy?
• If I do sue, how long will it take to collect on my damages? How much will I get?
• If there is damage to my car, who pays and how much? How do I get a car in the meantime and who pays for it?
• If I sue, how do I pay my lawyer?
• Is there a limit to how long after an accident occurs that I can still sue for damages?
• What if I’m injured in an accident in which I’m a passenger, who do I sue for damages? Who pays for my medical treatment?
• What if I’m involved in an auto accident with someone who has no auto insurance or has very minimal coverage…not enough to cover my damages? Read This Article ›

What you need to know if you are injured as a result of negligence on the part of the State, a Municipality or a State Agency in New Jersey.

A personal injury action against the State of New Jersey, a state agency or a municipality may be forever barred if you fail to notify the State, state agency or municipality who is at fault for your injuries within 90 days of the incident. (There is a similar requirement in Pennsylvania as well)  In New Jersey, you may not be able to file a complaint against a public entity  if you fail to provide notice. The New Jersey Torts Claim Act, codified at N.J.S.A. 59:8-4, was enacted to provide a public entity “with sufficient information to enable it promptly to evaluate its liability and potential exposure and, if it chooses, to correct a defective condition and also to engage in settlement negotiations prior to the commencement of suit.” Henderson v. Herman, 373 N.J. Super. 625, 634 (App. Div. 2004)(quoting Newberry v. Township of Pemberton, 319 N.J. Super. 671, 675 (App. Div. 1999). See also Beauchamp v. Amedio, 164 N.J. 111, 121-22 (2000).

The Torts Claims Act, states that a notice of claim must be provided to the public entity within ninety days following the accrual of the cause of action. (See N.J.S.A. 59:8-8). The accrual date is the date in which the accident that causes injury occurs. Beauchamp v. Amedio, 164 N.J. 111, 123 (2000). The accrual date can be tolled  in limited circumstances. “Tolled” means that the accrual date is put on hold. For instance, the accrual date can be tolled if the injured party does not know that he or she was injured or that a specific third party is responsible for those injuries. Id.

A notice of claim form for the State of New Jersey can be found on the state’s website. It simply asks for information about the person who was injured, how those injuries occurred and the injuries sustained Oftentimes, municipalities have specific forms that are available by request only. Although the notice of claim form appears to be self explanatory, your rights will be best served by having an attorney to help in filling out the notice of claim form and to follow up, possibly negotiate a settlement and/or file a complaint on your behalf.

Although there are certain exceptions that allow a claimant to file a late notice of tort claim, (only with permission by the court), if you are injured and you believe that injury is caused in whole or in part by a state agency, it is important that you seek legal counsel as soon as possible.  If you sit on your rights you may not be able to file a lawsuit against the state agency who is responsible for your injuries. Kamensky Cohen has obtained substantial settlements from state agencies for injuries caused to our clients. If our clients had not sought legal counsel as soon as possible, those settlements may not have been possible.

When the negligent actions by an individual are responsible for the loss of another’s life, although the deceased’s family will grieve their loss, New Jersey’s laws limit their ability to recover for the grave consequences of the lost life. To date, all attempts to change those limitations that  the law presently has in effect, have been thwarted.

New Jersey law presently allows for two types of claims that can be brought when dealing with a fatality resulting from the negligent conduct of another.  They are the Wrongful Death and Survival Actions and they differ significantly as to the damages that can be recovered, the beneficiaries of the compensation, and the legal representative that can bring the claim.

Survival Action claims are brought for the damages that are sustained by the decedent from the onset of the injury caused by the negligent act (a tort) to the decedent’s death.  Generally, these damages consist of conscious pain and suffering claims, funeral expenses, medical bills, and lost wages that accrue between the time of injury and death.  Since these damages are damages that the decedent sustained, these damages will “pass through” the decedent’s estate.  This means that the only person with the legal capacity to bring a suit for the Survival Action is the Administrator or Executor of the Estate. The beneficiaries of the Estate’s recovery for a Survival Action will be limited to the heirs of the Estate whether named in a will or, if there is no will, determined by the laws of intestacy.

Wrongful Death claims are designed by our laws to compensate, in part, the people that sustained economic losses from the death of a loved one.  The emotional anguish and consequences of sustaining a tragic loss of a family member are not recoverable pursuant to the limitations of the laws of New Jersey.  Only the pecuniary losses are recoverable, which are the monetary value of the losses that the decedent may have provided or been expected to provide to the survivors.  These are specified as such things as financial support, advice, household services, guidance, care, companionship and comfort.

These pecuniary losses are determined to have a financial value, which can be awarded by the jury in a trial involving the death of another.  The courts are required to instruct the jury that they are not to award for the emotional component of the losses, only the financial value of the losses.  Courts will instruct a jury that they are not to consider the emotional satisfaction that would have been provided had the decedent lived, such as seeing a daughter walk down the aisle on her wedding day or the inability to hug a child.  These are the limitations that New Jersey law imposes on the potential recovery in a wrongful death action.

Kamensky Cohen is presently involved in several wrongful death claims that differ vastly in the amounts that can be recovered.  An example is a case involving a mother struck by a car who died instantly.  As there was no conscious pain and suffering due to the instantaneous death, and the woman did not work outside her home, the recovery is limited to the amount that a jury would award for the loss of advice, household services, guidance, care, companionship and comfort that might have been available to those entitled to receive those elements of damages in the remaining lifetime.  Our jury verdict research coupled with years of experience handling these matters, tells us that these cases are resolved for low six figure amounts.  If, however, the mother in question suffers for hours or days before her death and/or has had substantial earnings with a long remaining work life expectancy the damages that are recoverable could be in the millions.  While this does not seem fair or just to the survivors of such a tragic loss, this is New Jersey law as it presently stands, seeming to favor only those losses that can be quantified by economics.  While it is understood that no money can compensate for the emotional loss of a loved one, it is equally difficult to understand the legislators thinking in these arbitrary standards as to what “loss” is and what kinds of “value” to place upon it.

In any case, should your family face the tragedy of the loss of a loved one due to negligence of another, seek experienced legal advice and representation.  A good lawyer can help your family recover damages and, to the extent that it can ever be, help you address your grievances.

For more information please visit http://kc-law.net

by
JERROLD KAMENSKY, ESQUIRE
Senior Partner, Kamensky- Cohen

Auto accidents are, unfortunately, an ordinary part of our lives. They are costly, not only because of our auto insurance expenses but also because of the impact on our lives both economic and as a result of pain and inconvenience they cause.

Having practiced law in the areas involving personal injury for almost forty years I have seen the impact on my clients lives ranging from minor soft tissue (muscle, tendons and ligaments) to lifetime disabilities such as burns, brain damage, crippling fractures and nerve damage causing paraplegia and even quadriplegia. Our office has also handled many cases resulting in death which certainly impacts significantly on the lives of a family and friends of the unfortunate victim.

While some accidents can certainly be avoided by careful, attentive and defensive driving you cannot always protect yourself from the negligence of others, especially in the age of cell phones, GPS guidance systems and text messaging.

So if you do find yourself in an automobile or other moving vehicle such as motorcycle, bicycle or truck accident, shown below are the important steps you should take to protect yourself from possible legal, medical and/or financial problems that might arise from that accident:

At the scene:

a.) Contact police immediately so that a proper accident record is created that describes the events that led to the accident and the consequences of the accident. Be certain the report the accident to the police officer in a concise statement (please do not talk to much) and in a light most favorable to you. While you may be tempted to make polite apologies to another driver, they can be construed as an admission of fault, so do not do it. Even if you might be at fault, do not make any statements of fault. Let the police make there own judgment.

b.) Never tell the officer at the scene of the accident that you are not injured even if you think you feel fine. A statement that you are shaken up unsure if you are hurt will help should litigation become necessary. We are not suggesting you lie, just letting you know that most soft tissue injuries such as muscle, ligament and cartilage damage will not become apparent for 12-24 hours. A statement that you are not injured at the scene of the accident will, without doubt, be used against you in any later settlement discussions, trials and even insurance claims for medical attention should injuries later show up as a result of the accident.

Insurance Claims:

Make sure you get the name of the other driver’s or drivers’ insurance company at the time of the accident. Report the accident to your insurance company immediately giving them the date and time of the accident and the other driver(s) insurance information. DO NOT GIVE YOUR INSURANCE COMPANY ANY OTHER INFORMATION WITHOUT FIRST SPEAKING TO AN ATTORNEY. Neither the other driver(s) NOR your insurance company is looking out for your best interest. Trust me on that…your insurance company may talk of “good hands” but they are looking to pay the least amount of money on any claims you make as possible.

Repairing your vehicle: Take your vehicle to a qualified Auto Body Shop. If you have property damage coverage on your insurance policy, your own insurance company will arrange for the repairs. Your deductible or a portion of it may be paid by the other driver’s insurance company depending on the assessment of who is at fault for the accident. That is another good reason to speak to your attorney first before any further steps are taken. BE CERTAIN TO OBTAIN PHOTOS OF THE DAMAGE BEFORE REPAIR FROM THE BODY SHOP. Digital copies are best.

Medical Care:

a.) Always see your family physician within three days of the accident and if you are feeling any pain at the scene of the accident you would like to go to the hospital. If an ambulance is necessary because you are not feeling up to driving or your vehicle is not capable of being driven, ask the officer to arrange for an ambulance for you.

b.) At the emergency room and any subsequent visits always report any pain that you are feeling no matter how small you think it is at the time. The reason is that if your pain gets worse and becomes a permanent problem, it is extremely important that you are able to “connect the dots” back to the accident. Consistent reporting of areas of pain that increases and even decreases over time will establish the connection to the accident. Throughout your treatment be very careful what you say. I recently had a case in which my client was severely injured in an accident required pain surgery and was left with a severe permanent injury to his leg. After the surgery he advised his physician that he was feeling “80% better”. This was used against him at the time of trial. Report your accident truthfully but in a light most favorable to you. At the ER people tend to focus on the place in their body where they are feeling the most pain. That is not always what ends up to be the real problem so be certain to report all pain, if it is present in any place in your body as it can get a lot worse. After specific descriptions of pain, a statement to the triage nurse and or treating ER doctor to the effect that “I ache all over” (if true) can assist later in evaluating your case should new symptoms appear at a later date.

Medical Expenses:

a.) PIP coverages on your auto policy – Most drivers in New Jersey have personal injury protection coverage (PIP) on their automobile insurance policies. This coverage is considered one of the best in the nation as it provides $250,000.00 of medical coverage. In exchange for that substantial amount of coverage you are liable for a copay and deductible of $1,200.00 on the first $5,000.00 of medical expenses. That money is non refundable, however, if a doctor treats you for a substantial period of time they will sometimes be willing to reduce the copay obligations. In addition, if you have your own health insurance, you should report both policies to your physician because the copay and deductible can, in some cases, be picked up by your health coverages.

Health Insurance alternative – Some people have opted out of the PIP coverage when selecting their policy coverages, have no auto insurance or may not be eligible for PIP¹ for reasons to complex to go into here. If you have substituted your own health insurance policy as primary on your auto policy or have no auto insurance and use private health insurance or medicare/medicaid coverages you may be required to reimburse your insurance company for the money they lay out for your care related to the injuries sustained in the accident. If you settle with the other driver’s auto insurance company without this being taken into consideration you could be stuck for those bills. A knowledgeable attorney who is experienced in auto accident injury cases will know to include the amount of the bills in your settlement so you are adequately protected. This is one of the reasons that the insurance industry likes to settle before the lawyer is involved.

c.) In addition there are complex insurance issues that arise when you are injured in a state in which you do not reside. These are called conflict or choice of law issues. Our lawyers are admitted to practice in both Pennsylvania and New Jersey . In those cases where a Pennsylvania licensed and insured driver is injured in New Jersey and/or the reverse, the insurance laws can get quite complex and it is very important that you become aware of, and your attorney is familiar with, those complexities. Jerrold Kamensky and Philip Cohen teach those matters for continuing legal education courses.

Selecting your lawyer:

a.) Of course you knew that I would get to this point and I have a good deal of bias in this area. Kamensky- Cohen & Associates has been practicing personal injury and insurance law since 1972. It is not the only area of our practice and I would suggest you see our website to explore other areas that we can help you with. We have exceptional depth of experience in both New Jersey and Pennsylvania and we have taught other lawyers on the inter-relationship of automobile insurance law between the two states.

If you click on the friends and family link below you will connect to our website and you can sign up to become a member of our “friends and family”. So long as you are a member thirty days or more before you are involved in an accident you will be treated with a special rate as set forth in the friends and family section.

Once you are a member of friends and family we will assist you, without charge in reviewing your automobile insurance and provide you with advice on how to get the best protection for the least amount of money. We are here to help you.

A Seminar entitled “New Jersey Auto Law” delivered to the Bucks County Bar Association by Firm Partners Jerrold Kamensky and Philip Cohen recently received “excellent” evaluations by attendees. The overall evaluations the Bar Association received from those in attendance were “exceeded expectations” by half of the respondents and “excellent” by the remaining half. Among the comments were “obviously expert in the field.” But we knew that!!

Among the many topics covered, Mr. Cohen and Mr. Kamensky focused on areas of the law that differ between the two states of New Jersey and Pennsylvania and how those laws impact upon cases involving injuries suffered in an auto accident. Many of the clients injured in an auto accident that a Bucks County Lawyer represents may have been injured while actually driving in New Jersey due to the shared border of the two states. Kamensky and Cohen pointed out many instances where a different strategy is needed than the one that might be used if the accident had taken place in Pennsylvania in order to get the best results for that client. Although the injured party will probably have a Pennsylvania insurance policy, they pointed out, either New Jersey or Pennsylvania laws may be employed, and the choice should be based on which would benefit the client under the specific circumstances of the incident and the coverages of the insured’s auto policy. Many examples of which is the best choice, given varying circumstances, were offered to attendees.

Both Mr. Kamensky and Mr. Cohen are licensed to practice in New Jersey and Pennsylvania and are members of the Mercer County (New Jersey) and Bucks County (Pennsylvania) Bar Associations. Mr. Kamensky and Mr. Cohen will repeat the presentation for the Bucks County Bar in the spring. Attorney attendees can receive Pennsylvania CLE (Continuing Legal Education) credits for their attendance.

A comprehensive overview of how to purchase Automobile Insurance that best protects you and your family in the event of an auto accident in the states of New Jersey and Pennsylvania are available on the Kamensky—Cohen website under the topic, “Helpful Documents.” The website address is http://kc-law.net.

By Jerrold Kamensky, Esq.,
Senior Partner, Kamensky Cohen

Protecting yourself with your own automobile insurance involves a comprehensive understanding of which coverages actually protect you from the claims against you by other drivers as well as claims made by you against other drivers. It is our view that one of the primary purposes of automobile insurance protection is to protect yourself from uninsured and underinsured drivers causing injury to you. In order to optimize your coverages for these purposes, careful attention must be paid to the selection of all aspects of your coverages. The following article explains two important aspects of selecting the right coverage and how what you choose on one effects what you are allowed to choose on the other.

LIABILITY COVERAGE – pays for bodily injury and property damages that you or a driver of your automobile causes to others. It also pays for the cost of an attorney selected by the auto insurance company to defend you against claims made against you by the other, injured driver. Injury damages include medical expenses, pain and suffering and lost wages. Property damage includes damaged property and automobiles. New Jersey and Pennsylvania (like 45 other States) require minimum coverages, but you can, and should, purchase more coverage than your state requires. The following selection criteria will help assess the need for additional coverages over and above what the minimum requires.

a. Assets Available for Seizure by an Injured Person Due to Your Negligence. Because your liability selection is provided to protect you and drivers of your car from claims of others for negligence related to the use of your automobile, it is important to be aware that the limits of your liability coverage are not the limits of what the person you injured can recover against you but they are the limits of what the insurance company will pay. If, for example, you have selected and purchased a $15,000 liability limit and as a result of your negligence in the operation of your motor vehicle serious injury is caused to another, your own assets can be seized to compensate for those injuries.

Income Earning Capacity. Even if your assets are limited, other means of collection are available through garnishment of your wages and liens on Real Estate. For example; with the diminished bankruptcy protections now available, a judgment against you can be a long term threat that will have impact on your credit rating and ability to transfer jointly held property. The judgment grows daily with the addition of interest.

c. Financial Capacity to Pay for Coverages. – It is easy to see that the more liability coverages that you have, the more protection that you have. Of course, there is always the concern that increased coverage takes more money out of pocket. While this is true, it is important to know that the lower levels of coverages are, dollar for dollar, the most expensive. Why? Because, like all insurance coverage, the purchase price is tied to the cost (plus substantial profits for the insurance company and large executive bonuses ¹⁾and, obviously, there will be far more frequent minor injury claims than claims for serious crippling injuries. In addition, the insurance company is paying for the cost of your attorney, which may not vary significantly despite the difference in injuries caused so those first dollars of coverage are the most frequently paid and hence the most expensive.

(According to the America Association of Justice the CEOs of the top 10 property/casualty firms earned an average of $8.9 million in 2007.)

UNINSURED/UNDERINSURED COVERAGE – (“U” coverages) provides you with insurance coverages when you are the injured party and the other guy has insufficient liability coverage (“Underinsured”)or no insurance (“Uninsured”) to pay for the extent of your injuries and damages.

The Need/desire to Protect Yourself from Injuries That You Suffer Caused by a Negligent Drive of Another Car. When you are injured due to the negligence of another driver you should no more rely on that driver to have adequate protection for you than you would rely on him to drive safely. Defensive insurance purchasing is as important as defensive driving and both can protect you from the devastating effects of an accident by purchasing adequate Uninsured/Underinsured insurance protection. We have seen many cases where a negligent, reckless or even a drunk driver has caused serious injuries to our clients and the “bad” guy had no coverage or minimum coverages. It sounds simple – just increase the “U” coverages on your policy. The problem is that you can only increase those coverages to the maximum of the amount of Liability coverage that you have selected (see above). To determine the cost of protecting yourself you have to measure the cost of increasing both your Liability and”U” coverages. The following chart will help and is taken from actual quotes for six months of coverage which we provided for a client of ours.

The “lesser coverage” is what his policy reflected at the outset of his coverage consultation in our office. The “increased coverage” is what we recommended and he purchased after our free consultation.

2 The Threshold can limit your ability to recover against the other guy even when he is clearly in the wrong. He could have been drunk, asleep or reckless and if you have failed to select out of the default “Limitation on Lawsuit” you could be out of luck even though you have been faithfully paying for your insurance for years. If you have the “Limitation on Lawsuit” threshold on your policy (insurance companies love that!) you cannot recover for your pain and suffering unless a jury determines that your injuries meet a certain statutorily defined “threshold”. Individuals suffering from “soft tissue” injuries, even severely herniated disks causing a lifetime of pain and suffering, are currently being denied recovery in approximately 90% of jury trials in New Jersey. Watch out for this one because if you do not select out of the “Limitation on Lawsuit” you will pay a lot and get no bang for your buck!

 3 Your PIP (Personal Injury Protection) coverage is important! Insurance companies will often recommend the $15,000 coverage instead of the default coverage of $250,000. The difference is only $18/year more for a good deal more protection to pay your medical bills should you be injured. Even a modest injury can result in medical costs that will dramatically impact on your pocket book and the cap that many health policies now place on your coverage. The $250,000 coverage is considered one of the best in the nation and should be your selection.

 Check out the above footnotes in the chart because they demonstrate the manner in which you can easily be deceived into purchasing far worse coverage when the cost of the much better coverage is minimal. Many of these coverages must be offered by law but are discouraged by the insurance companies. The “Limitation on Lawsuit” threshold is the insurance company’s profit mill. Tha’s why they lobbied the legislature hard for a law that allows them to write your policy with the “limitation on lawsuit” coverage unless you elect out of it. They lull you into thinking that you will be able to sue the other driver, but based on the fact that you have failed to deselect the default coverage of a “Limitation on Lawsuit” policy, you will not be able to recover in 90% of the cases that go to the jury. Many prominent lawyers will not take cases that are subject to the “Limitation on Lawsuit”. Do not make that mistake – deselect ” Limitation on Lawsuit” and be sure that the policy reads “No Limitation On Lawsuit”.

Both of the policies that I have shown above are shown to have selected a “No Limitation” policy. Actually, when my client came to me, he had not deselected the “Limitation on Lawsuit” policy. The difference in the cost of the policy with a “No Limitation” selection would have been only $90/year additional. Had he chosen a “no limitation” policy, the injuries that he had suffered would have been recoverable without question. Without the “no limitation” selection, we were not, unfortunately, able to take his case to help him recover damages for his substantial injuries. Nothing is more frustrating for a lawyer than to see a seriously injured victim of an auto accident unable to care for himself because of uninformed selection of insurance coverage!

Prices for auto insurance will vary depending on factors such as age, gender, location, amount of driving and driving record. The differences in coverage costs for far better protection are surprisingly less than one might think. Most people rely on their insurance company/agent’s recommendations. These recommendations are not necessarily in your best interests.

As I said above, there are a wide variety of factors that influence the cost of your auto insurance purchase. For instance, if you are looking to buy a car, some cars have equipment that may bring down your auto insurance costs. Security devices and tracking devices such as “On Star” will save some money. If you think you can afford that mid life crisis red Porsche, be sure to consider the cost of the insurance when you do your budget. Cars that are on the car thief’s “favorite list” will increase your insurance costs and that cost needs to be factored into your decision.

It has become much easier to compare rates for insurance because of the access to rating

on the internet. Figure out what you want and price the coverages with several different carriers. Rates will differ. Be sure to let whichever carrier you choose know about discount factors for which you qualify. If you don’t know which discounts you may qualify for, ask! Some of the more common discount factors are good student discounts and/or multiple cars on a single policy. A good driving record will bring the costs down and a bad one can make you a high risk and expensive insured. Even reducing your annual mileage estimates by car pooling or public transportation will impact some on the rates.

The best way to evaluate the impact of your policy is to come in to Kamensky-”Cohen for a free review of your policy. We will tell you how the coverages you have selected really protect you or not should you be involved in an accident and help you evaluate your best cost/protection ratios.

The Pains of an Auto Accident:
Being involved in an auto accident is often far more than a mere inconvenience. In addition to the pain of injuries, concerns about your recovery, possible shock/psychological trauma and financial concerns, there are complicated legal and insurance labyrinths thru which you will need to maneuver.

How we can help:
In our legal practice, focusing on Personal Injuries, we encounter many of the same questions and concerns from our clients who have been involved in auto accidents. Below are some of the most common followed by brief, helpful answers. Above all, we highly recommend that you consult Kamensky – Cohen & Associates as soon as possible before you agree to any settlements offered by insurance adjusters, both those of the other driver(s) involved and your own.

Before you settle:
Sign nothing and accept no checks to cover your property or medical damages before consulting a lawyer! Even if you end up with no serious injuries, it is best to find out your rights before you agree to anything. Only a lawyer will be able to explain all of the legal, medical and financial issues with your best interests in mind. The insurance companies that contact you with advice are protecting their pocketbooks so be careful and consult with an attorney before you make any agreements.