Tip #5--Reimbursing Your Health Insurance from the Auto Settlement (Subrogation)

After your Wisconsin auto accident, your medical bills may be paid through your health insurance. The medical pay coverage of your own auto policy (a no-fault coverage) is another source of insurance to pay your bills right away.

If the accident was not your fault, you can make a liability claim against the insurance of the other driver. In this claim you can ask for compensation for your medical bills, your lost wages, pain and suffering and permanent disability. It is best to wait until you finish your treatment and the doctor can assess whether you have permanent injuries before settling with the liability carrier. For a serious accident, the doctor will wait for at least a year to make this assessment. This means the liability settlement based on the doctor's report comes 1-2 years after the accident. During that time, the liability carrier will generally not pay any medical bills. If medical bills remain unpaid for that period, the injured person can be sent to collection, even though the accident was not his or her fault! This is why most people use the medical pay coverage from their own car or their own health insurance to pay the bills as they are incurred.

In the liability settlement, the liability insurance carrier pays an amount that covers all the related bills, the lost wages and the pain and suffering. If the injured party's bills have already been paid by the health insurance company and the auto medical pay carrier, those companies usually must be reimbursed from the settlement funds. This reimbursement is called subrogation.

If you hire an attorney, he or she will negotiate to bring down the amount of subrogation that is paid out of the settlement. This means you'll get to keep more of the settlement.

Accidents are complicated! Traffic Court, Civil Court and DOT are all involved!

A. Police Report/Traffic Tickets/Traffic Court

After an accident involving with $1000 or more in property damage and/or physical injuries to one or more people, Wisconsin law requires that the police department be notified. Call 911 to have a police officer dispatched.

The reporting officer will speak to the drivers and the witnesses and take their statements about what happened. He or she will ask for driver licenses and proof of insurance and then will search the driving records in the computer from the police car. In addition the officer may take photos and/or measure skid marks. The officer will ask about injuries and list them on the report. He or she will indicate the level of damage to the vehicles—none, minor, moderate, severe or very severe. The officer will draw a diagram of the accident and will take down other information to complete the accident report form.

The officer will then determine if a traffic law has been violated and will issue a traffic ticket for any violation that contributed to the accident such as Failure to Yield, Operating Left of Center or Operating While Under the Influence of Alcohol or Drugs.

Not all tickets issued in an accident are about who was responsible for the accident. For example, you may receive a ticket for driving without insurance, driving without a driver’s license, expired vehicle registration or driving without fastening your seatbelt.

These tickets do not mean that you were at fault for the accident.

It is very important to read your ticket and keep it in a safe place. Note the court date, and call the court right away if you need to request a change in the date or time.

You can request a copy of the accident report from the reporting police agency. If you think that mistakes were made in the accident report, you can call or write to the reporting officer about amending the report. If the error is significant, the officer may file an amendment, such as when there is misidentification of the drivers or the vehicles. You or your witnesses can also request to make a statement about the accident. It is important to review the accident report within two or three weeks of the accident and promptly make your request for an amendment or a statement.

If you receive a ticket, you can plead guilty and pay your fine by mail. Or you can go to court on the date and time indicated on the ticket and talk to the district attorney and the judge about the ticket. The location of the accident determines which court will take charge of your ticket.

If you cannot come to an agreement with the district attorney, you have the right to request a trial on your ticket. You may need to hire an attorney to represent you. If you lose your trial, you will be responsible for court costs in addition to the fines for the ticket.

If you plead guilty to a traffic law violation or if you are found guilty after a trial, points may be assessed against your driver’s license.

B. Insurance Claims/ Civil Court

Driver A, who is responsible for an accident, should report the accident to his insurance company, so that payments can be made under liability coverage. The liability insurance company for Driver A will contact the Driver B and any passengers, investigate the accident and make settlement offers to pay claims for property damage and injury. If Driver B or his attorney or any passenger is not satisfied with the settlement offers made for vehicle damage and/or injury claims, the case can be sued in civil court against the insurer for Driver A.

If Driver A is not insured, then Driver B, his attorney or his passengers can ask Driver B’s insurance company for a settlement under uninsured motorist coverage. After settlement, Driver B’s insurance company can sue Driver A for reimbursement in civil court.

C. Uninsured Motorists/ DOT

If the at-fault driver does not have insurance, the Wisconsin Department of Transportation (DOT) will contact him or her by letter 8 weeks after the accident. The DOT is an administrative agency that enforces the WI laws making it illegal to drive without insurance. The DOT will ask the uninsured motorist to provide a bond or pay for damages to any property or people that he or she caused in the accident. The DOT evaluates and determines the amount that must be paid.

In some cases there is a dispute about what happened in the accident. Which driver is at fault? The uninsured motorist can ask for a hearing to explain what happened. The hearing is conducted before an administrative hearing officer at the DOT. The DOT hearing will determine if there is a reasonable possibility that the uninsured motorist would lose if he or she were sued in civil court, and the loss would result in a civil judgment against the uninsured motorist. If the hearing goes against the uninsured driver, the DOT will suspend drivers' licenses and vehicle registrations unless payment is made or a bond is provided. If there is no civil judgment against the uninsured motorist within one year, the money is returned and the uninsured motorist can apply to have license and registration reinstated.

For more information, check the website www.hestadlaw.com.

For a free consultation, call Hestad Law office, the Injury Lawyers You Can Trust,

608-273-1600.

Tip #4 Increasing Your Total Loss Insurance Settlement

Your car was totaled in the accident but the insurance offer is really low!  Is there anything you do to increase the insurance offer on the car?

The liability insurance company is only responsible to pay the amount your vehicle was worth in the marketplace on the day before the accident.  That amount may or may not be enough money to replace the vehicle.  Keep in mind that insurance companies pay only average value, not top value, for a used car that has been totaled.  And they pay nothing at all for sentimental value!

Check the value of your vehicle on the Internet at www.kbb.com and www.nada.com.  Also check the Internet and/or newspaper classified ads to try to locate a vehicle very similar to yours (similiar in age, mileage and options) to check the price.    If you find values which are higher than the insurance offer, submit copies to the adjuster as part of your negotiations.

Be sure to give the adjuster written proof of major repairs to the vehicle, such as replacement of the engine or transmission.  Proof of regular maintenance such as regular oil changes may help increase the value.  Be sure the adjuster knows if your car had no rust or was in particularly good condition so that can be factored in.  Ask how the car was rated--average, good, excellent, etc.

If you had prior damage on the vehicle, the adjuster may want to deduct the cost of that repair from your settlement.  Try to negotiate on the amount deducted.

There can be two different total loss offers—one where you give the liability carrier the car in exchange for the settlement, and a second offer (for less money) where you keep the car.  Which offer is better depends on the extent of the car damage and whether you have the time and energy to deal with the damaged vehicle.

In a total loss settlement where you give the insurance company the title and the damaged car, they should pay the car value plus an additional amount for sales tax for your county and transfer and title fees.

Unfortunately, total loss offers are sometimes lower than the balance owed on your car loan. This seems incredibly unfair if the accident was not your fault!  If you paid a high price for the car, your loan may have been more than the market value of the car when you initially financed the purchase. The bank may have loaned more than they should have to help you out.  Since you bought it, the value of your car has depreciated every year.  You may have  damage you did not repair or that car may not be in the best mechanical or exterior condition.  If you owe more than the amount offered, you are "upside down" on your loan.  All the funds from the total loss settlement will be given to your lender, and you will have no car and a remaining loan balance to pay off!

In my years of handling auto accident claims, I have found that figuring out a way to get another car helps reduce stress.  If you have been making a loan payment and you have good credit, call your lender and explain the circumstances.  Ask if you can finance another car and roll the remaining balance of the loan from the totaled vehicle into the financing of the new vehicle.  If you can find a good vehicle that is not overpriced, your lender will probably work with you in this way.   Once the car has been replaced, you can focus on healing from your injuries.

Tip #3 Yikes, posts about your injury accident on Twitter and You Tube could wind up in court!

A word of caution to those of you who publish extensively on the Web—what you text or post about your accident could be retrieved and used as evidence if your case goes to court.  This includes posts on Facebook, LinkedIn, Twitter, Blogspot, You Tube, MySpace, etc.

Lawyers for injured people may seek access to their clients’ accounts to find out what information has been posted and whether these posts are helpful or detrimental to the case. Lawyers for the insurance companies are now asking to look at these posts as part of the discovery process once a case is in litigation. Then judges must rule on whether the insurance companies are allowed access—e.g. whether the injured person is forced to sign a release allowing the insurance company to see all their postings. 

If you are in an accident, it is the best practice to keep your on-line comments about the accident to a bare minimum or not to mention it at all.  On-line jokes, rants, descriptions of injuries or what happened may end up being part of the evidence in your court case, and may have a negative impact.  Think about protecting your claim when you communicate on the web!

Tip #2 Pick the Right Lawyer for Your Injury Claim

After your accident, you may be quite surprised to receive multiple letters and brochures from personal injury lawyers in the mail. You probably wonder: "How did these lawyers even know I was in the accident? How did they get my address and information?" Some people feel flattered that several lawyers are contacting them, making it easy to hire a lawyer without even leaving their house. Other people feel pressured and annoyed by receiving multiple solicitations and expensive brochures at a time when they are coping with pain and loss from the accident.

You are NOT required to choose one of the lawyers who sent you a letter or a brochure. There are many good lawyers who generally don't send such letters. If you don't know any lawyers, you can ask friends, relatives, neighbors or co-workers for recommendations. You can look on-line or in the phone book. You can consult the State Bar of Wisconsin.

Schedule interviews with several lawyers before you make your decision. Bring a list of questions and take notes. You can ask questions about your claim, the lawyer's experience with similar claims, where the lawyer went to law school and where the lawyer has worked. Ask the lawyer to explain what he or she would do to help you. If you like, ask for references from past clients. Look around the office--does it make you feel comfortable? Pay attention to the lawyer's personality--do you think you could work well with this lawyer and his/her staff? Is this lawyer tough enough or understanding enough for you? Note what impresses you favorably or unfavorably during the interview. At the end of the interview, you do not need to sign anything. Explain you are researching how you will proceed with the claim and you'll get back to the lawyer with your decision. Then thank the lawyer for spending time with you.

After you have completed your interviews, compare your notes about the lawyers' backgrounds, legal experience, claim results and personality as well as any comments from recommendations that you received. This way you can make an informed decision and pick the right lawyer!

Tip #1 Keep Notes After Your Injury Accident

An injury accident is an extremely stressful event. Post-accident pain and anxiety can negatively affect your ability to accurately remember important accident details--details that you will need to remember to effectively make your claim to the insurance company. 

The solution? After your accident, keep an on-going  written journal. Write everything down in a notebook or in your computer.

Write notes about what you were doing/where you were headed just prior to the accident. Include location, time of day, condition of the surface of the road, parking lot or interior floor, traffic at that time. Who else was at the accident scene?

Then write out the details about what happened in the accident. What did you see? What did you hear? What happened first? next? and then? Describe what you know of the injuries and property damage on the scene, both for yourself and others. 

Did you have pain right away? Note the area of your body that hurt and rate your pain on a  scale of 0-10 where 10 is the worst pain imaginable. Who called for the ambulance? How long did you need to wait for help to arrive?

If your pain came on later that day or night or the next morning, describe what you felt and note when you contacted your doctor or chiropractor. Keep a list of all of your medical providers post accident including the dates you had medical care, the names of your doctors, their contact information, and what happened in each appointment.  

Each day after the accident, note the date, the pain level in the areas of your body that were injured, any activity restrictions and your emotional state.  Note changes in your normal routine due to the injuries. For example:  "My back hurts if I try to put the wash into the dryer, so I have to ask for help. I can't turn my neck to look around while driving--I have to turn my whole body to see to the left or right. I am feeling frustrated and...."

Injuries affect you but also can negatively affect the life of your family members. If you cannot drive, then you cannot transport your son to his soccer matches. Maybe you cannot dance with your spouse at a friend's wedding, or accompany your family on a planned car trip. Include these details in your notes.  

Keep track of the dates and hours of any time off work due to the accident. When you return to work, note any changes in your usual work tasks you need to make due to your injuries.

Each time you hear from an insurance representative, write down his or her name, telephone number, the date and a summary of what you talked about. This is VERY IMPORTANT!  With this information, you can deal much better with the insurance company when making your claim for injury, car damage or other property damage and even bill payment. You probably will deal with several different  insurance companies. For example, an auto case often involves three insurance companies:  the liability insurance company for the at-fault party, your own auto insurance company and your health insurance company.  In some accidents, there may be a workers compensation insurer, Medicare or Medical Assistance as well.

Your notes don't have to be perfect--don't worry about spelling or grammar. Just keep writing! If you cannot write due to your injuries, ask a family member or friend to help.  

Writing down details as they happen is very valuable--otherwise it is likely that these details will be forgotten after a few months. Your notes will be extremely helpful if you decide to ask a lawyer to handle the claim.  

As an experienced personal injury attorney, I have handled over 1000 insurance claims for people who were hurt in auto accidents, slip and fall accidents and dog bite injuries since 1993. I am always favorably impressed by clients who can provide me with their notes!  These notes are a valuable tool to help me understand what the client has been through and how the accident changed the client's life. When I write the demand letter to the insurance adjuster, I strategically incorporate details from the client's notes.  A key to a successful claim settlement is effective use of the client's notes!