The Law Offices of Robert J. Delaney- Accidents

 

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Introduction

 

            It is the duty of each motor vehicle driver to look out for others using our roads and to properly control their vehicle.  If the driver fails to keep a proper lookout, or fails to properly keep his vehicle under control, he is responsible for certain harms the offensive driver causes.

 

If your injuries are minor and you recover quickly, you are best off settling your claim yourself.  (Costs of assistance could exceed your recovery.)  If you do not recover and have permanent injuries, you are best off with professional assistance on your claim.

 

We will be happy to assist you in Indiana or all the nearby states.

 

These cases are typically handled on a contingent fee basis, which means the attorney receives a portion of the recovery, and if no recovery, no fee.

 

The first task for the injured person is to hire an attorney to make sure the liability or responsibility is tied down by the collection of the necessary physical evidence.  This can quickly disappear (tire tracks, damaged vehicles, etc.) if not documented.  Insurance adjustors love to quickly settle your property damage claim, then haul off your vehicle and crush it, then claim you couldn’t have been hurt as much as you claim because there was not much damage to your vehicle.  (e.g. In a recent jury trial I had in Henry County,  the axle was broken by the force of the collision, but there was not much exterior body damage to vehicle.   Insurance company attorney claimed injured person couldn’t have been hurt much because the pictures of the body of the car didn’t show much damage.)  Juries are too often fooled by looks of the vehicle, so it is necessary to document the forces involved with all the damage to the vehicle, including that which one cannot see in photos. (Fortunately, and unbeknown to the  insurance defense attorney, the father of the injured occupant, was a mechanic and had inspected the underneath portion of the car and seen the broken axle. One would not have guessed by the body damage that an axle had been broken by the forces involved. The amount of body damage is deceiving  re the issue of how injured was the occupant.

 

Second, the motor vehicle crash injured person needs to work at getting well, recovering as fast as the injured person can.  See the doctor regularly, see the physical therapist regularly, do your home exercises program regularly.  Do what your doctor  tells you.  Insurance companies like to beat up on the “grin and bear it” injured person, telling juries (and fooling the jurors that think you should only do what your doctor tells you or think you should always see your doctor if you hurt) “They aren’t hurt.  They didn’t see a doctor.”  Trial after trial we hear the insurance defense attorney trying to fool the juries with statements like:  “He didn’t see a doctor for 6 months.  He couldn’t be hurt.” 

 

There are ways to combat auto crash insurance company lawyers.  It takes an injured person and his lawyer working hard separately and together to do it.

There are some other myths in this field I’ll now discuss:

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Myth #1  A person cannot be seriously injured in a low speed (5 mph or less) crash.

Insurance defense attorneys (virtually all auto crash jury trials are defended by insurance defense attorneys, although by our rules, the jury does not know and is not permitted to be told that an insurance company is defending the case. The theory is that if the jury knows the defendant has insurance, it might affect the jurors decision) like to stand behind large photographs of vehicles and argue an injured person couldn’t have been injured in such a minor crash.  They hire experts who manipulate data and misuse scientific studies to support their opinions.  They generally calculate the forces applied to the vehicle rather than to the injured auto driver or passenger.  In fact, to calculate the forces applied to the injured person, they have to know the exact location of the injured person in the seat, the location of the head rest, distance between person’s head and headrest, whether injured person was looking straight ahead or to the right or the left, and the stiffness of the seat and the headrest. Defense experts never gather this vital information, which determines whether one walks away from a low speed crash with little injury or serious injury, even death.

Fact A:  Comprehensive research data reports 29% of subjects are injured at 2.5 mph collisions and 38% of subjects are injured at 5 mph.  (See International Conference on Biomechanics of Impact Sept. 16-18, 1998 by J. B. Wheeler, T.A. Smith, and G. P. Sigmund.)

Fact B:  There is no correlation between amount of crash damage and amount of injury to auto occupants.  (See R. W. Evans research in “Neuro Clinic” 10(4):975-997 1992.)

Fact C:  In fact, perhaps in contrast to intuitive logic, there is an inverse relationship between property damage and risk for occupant injury. (See J.F. Chaplines research in “Accident Analysis Preview” 32:287 2000)

The reason for this is the crushing (damage) of the auto means the auto is absorbing much of the force.  Whereas if the auto is stiff and not giving, more forces are transferred to the occupants.

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Myth #2  Rapid cervical acceleration/deceleration injuries (sometimes called whiplash) auto collision always heal up in 4-6 weeks.

 

Auto insurance defense attorneys delight in arguing an acceleration/deceleration injury is just a strain and all strains always heal in 4-6 weeks.  This silly position, used because some jurors think this makes common sense, is debunked by every competent doctor.  All doctors who work in this area know that “most” do in fact heal up in 4-6 weeks, but, in fact 9 out of 100 so injured have chronic permanent neck pain (See Arthur Croft, “Soft Tissue Injury:  Long & Short-Term Effects,” 2002) and never heal.

 

When a vehicle is struck from behind, the occupant’s lower body (below head and neck) is accelerated while his unrestrained head and neck lag behind.  This too rapid stretching  often results in rupture of muscle fibers, small blood vessels, lymphatic vessels, terminal nerves, ligaments, joint capsules and sometimes discs.

 

After these injuries the body goes through a three-stage repair process:

 

            a)     Acute Stage
                   Redness, swelling, heat and pain beginning in 1 to 48 hours, lasts about 2 weeks.

b)     Repair stage
 The synthesis of collagen molecules occurs in this stage and about 15% of normal strength is regained.  This normally occurs 3 to 14 weeks after injury, but can last for 6 months.

c)      Remodeling stage
The reorganization of scar tissue occurs during this stage.  How well a particular body does this determines the degree of a body’s recovery.  Even in apparent full recovery, the replacement scar tissue is weaker than the original tissue.  Spinal ligaments may heal in a permanent deformation and leave a joint hypermobile and subject to biomechanical forces that result in degeneration and osteoarthritic change.
This process may last more than 12 months.  It is not completely understood, this process of scar reorganization.  It is known that 9% of the injured are left with chronic permanent pain.  It is known that scar tissue is less elastic, less resilient, less pliable and less resistant to sheer and tensile forces than the original tissue.

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Myth #3  I don’t need professional help to settle my permanent injury auto collision claim.  All I want is my medical expenses and lost wages paid and a little for my pain.

Billion dollar auto insurance companies are now making record profits because folks believe the above myth.

 Property and Casualty

    Insurers reporting the largest year-over-year improvement in net income during the 2004 first nine months include the following companies:

  • Continental Casualty, Chicago: $196.6 million in net income during 2004 first nine months, $1.3 billion loss during 2003 first nine months

  • State Farm Mutual, Bloomington, Ill: $2.15 billion in net income during 2004 first nine months, $738.8 million net income during 2003 firstr nine months

  • State Farm Fire & Casualty, Bloomington Ill.: $1.15 billion in net income during 2004 first nine months, $10.8 million net income during 2003 first nine months

  • Allstate Ins. Co., Northbrook, Ill.: $2.75 billion in net income during 2004 first nine months, $1.81 billion net income during 2003 first nine months

  • Continental Ins. Co., Concord, N.H.: $2.1 million in net income during 2004 first nine months, $406.2 million loss during 2003 first nine months

    (Source: Weiss Rating on P-C Industry)

 It has now become commonplace for auto defense adjustors to make lowball (less than medical expenses and lost wages ) offers.  Many cases that used to be fairly settled now have to be tried by a jury because the defending auto insurance company won’t make a fair offer.  Auto insurance companies know that many folks will cave in rather than fight for what is right. So this hurts all the folks who expect a fair settlement.

Fact:  If you only have property damage or an injury that heals up in a few weeks, the economics of the situation makes one go without professional help (costs of help cuts into recovery too much.  One cannot recover attorney fees in a case where a driver violates his duty to others.  Therefore attorney fees come out of your pocket.)

Fact:  If you have a permanent injury, one that doesn’t heal up, it’s the practice of many auto insurance companies to make lowball offers and you need professional help to seek a fair settlement.

Examples of two recent cases:

a)     21-year-old male receives permanent low back injury in an auto crash where an older gentleman pulled in front of him from a parking lot. Young man misses much work rehabbing his back and doing pain maintenance.  Medical expenses $9908.  Lost wages $4400.  Auto insurance company offer up to trial:  $4800.

b)     Two young ladies in their early thirties are rear ended by a heavy truck while stopped in their vehicle at a stop sign.  One young lady had neck surgery and disc fusion for herniated disc.  Has permanent problems doing repetitive work with arms.  Medicals $22,000, lost wages $6,400.  Offer of settlement by auto insurance company:  $9,500.  Second young lady had shoulder surgery and after surgery cannot raise right arm above shoulder level.  Medicals $16,000. Lost wages $8,400.  Offer of settlement by auto insurance company:  $5,000.

Unfortunately, these are common rather than unusual examples of auto insurance company settlement behavior.  Auto insurance companies are spending billions of dollars misinforming and brainwashing the general public on the wrong idea that there are too many runaway ridiculous jury awards.  In fact, juries are just like all people, a few bad, many good, a few ridiculous.  By publicizing the few rare ridiculous verdicts and ignoring the statistics that a runaway jury is as rare as a snowstorm in a desert, the auto insurance companies are attempting to brainwash the general public (and potential juror population) with the misinformation that auto crash injured persons bringing a lawsuit are after a lottery type judgment and jurors are too often willing to give it to them.

Fact:  Jurors bend over backwards to be fair, and, if anything, don’t pay injured persons all their losses because of the constant smoke thrown up by the auto insurance defense attorneys who look at every medical record of the injured person since birth and argue something else, not the auto crash, was the cause of the injured person’s injuries.  Another favorite defense tactic is to argue auto crash  injury was from day-to-day living and work, not the auto crash.

Fact:  A person injured permanently in an auto crash needs professional help.

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