Here in Pennsylvania, the main thing that will cause your rates to go up is driving dangerously and exposing the insurer to greater than average risk. Dangerous, reckless, or inattentive drivers represent a greater than average risk of the insurance company having to make payouts. The insurer, upon discovering that an individual insured driver represents a greater than average risk of payouts will increase the premiums charged to offset the risk.

The two main ways that your insurance company finds out about dangerous driving habits are your driving record (tickets/”points”) and if you have been at fault in causing an accident[1]. This blog is about what sort of claims you might make against your own insurance and if making any of these claims should raise your auto insurance rate.

Damage to Your Own Car

Unless you have “liability only” coverage, your insurance policy covers you for the costs of damage to your car. Unless you are at fault in causing the damage, presenting a claim for damage to your car should not raise your rates. The insurance company is well aware of the normal risks in the world of other drivers, trees falling on cars, damaging hailstorms, and the like.

The exception here is damage that you cause through your own fault. For example, if you were to drive your car into a telephone pole, that would indicate unsafe driving habits and a larger than average risk of future claims. The insurer would adjust your premiums accordingly.

Medical Bills

Every auto insurance policy sold in Pennsylvania has a minimum of $5,000 in medical benefit attached to it. The idea here is that if you are injured in an auto accident that there ought to be some assurance to first responders and that there will be some money available. Any medical treatment given for injuries sustained in an auto accident must be billed against this $5,000 first. 

Even if you have private health insurance, a healthcare provider providing medical services for injuries sustained in an auto accident is required to bill against that $5,000 on your auto policy until it is exhausted.

Just as is the case with damage to your car, unless you yourself caused the auto accident giving rise to the claim for medical benefits, making a claim for medical treatment under your auto policy will not increase your premiums.

Why do I have to submit a claim to my own insurance if someone else is at fault?

People who have been in an auto accident are commonly told to submit medical, auto repair, rental, lost wages, and other claims to their own insurance company. For most drivers, this is confusing, nerve-wracking, and even perceived as irresponsible or dismissive advice.

In reality, it is probably good advice as it will get the driver’s immediate needs for transportation, medical treatment, etc. handled faster. In practice, when you submit a claim to your own insurance for damages you suffered at someone else’s hands, they will pay the claim subject to the limits of the coverage involved and adjusting. Then, they will go after the other driver’s insurance to be paid back. This is a process called intercompany arbitration and it is automatic and handled internally by agreement of the insurance companies. 

If you submit a claim to your own insurance for medical damage, or damage done to your car, caused by someone else’s fault it will not raise your rates. You specifically bought insurance in case someone else caused these types of harm to you and the insurance company willingly sold those insurance benefits to you. 

When the other party has insurance, your insurer will get their money back through intercompany arbitration anyway.

The Exception to all of this: Bodily Injury Claims

The one common exception to the foregoing is Bodily Injury claims (“BI Claims”). 

BI claims are commonly referred to as personal injury claims. These have to be submitted directly to the at-fault driver’s insurance by the injured party. This is usually done by hiring a personal injury attorney to present those claims in a way that maximizes value. 

When the at-fault driver has no insurance or not enough insurance to fully compensate the injured driver, the injured driver may then turn back to their own insurance and present an uninsured or underinsured driver claim. 

You can read my piece about the menace of uninsured drivers here. Another interesting read on personal injury claims would be my blog on the limited tort scam.

Even if you are at fault, don’t hesitate to submit claims

Premiums rise with risk. Fault tends to indicate risky or inattentive driving behavior. When an insurer becomes aware of this it will adjust premiums upward to reflect that additional risk.

Where a driver is at fault in an accident claims are going to be made against his policy by the other side via intercompany arbitration and or via the presentation of a personal injury claim. The at-fault driver’s premiums are going to be adjusted upward, so it makes no sense to not take advantage of the coverage you have, even if you are at fault.

If you or someone you love has been injured and wants to pursue a personal injury claim, please contact my office or me, directly. 

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[1] In a somewhat Orwellian twist, there are some insurance companies that offer a significant discount to drivers whom allow the insurance company to install tracking equipment in their car, so long as that tracking reveals careful driving. 

The post Will This Raise My Insurance Rates? appeared first on J. Murphy Firm.

Immigrants and both documented and undocumented have the same right to pursue injury claims as legal citizens

Pursuant to the 14th Amendment to the United States Constitution, no State may deny “..any person within its jurisdiction the equal protection of the laws.” This means that legal immigrants and even people unlawfully present in the United States are entitled to pursue personal injury cases.

It may seem odd to allow people who have disrespected the legal system to use that same system to get money when they are injured. There have been arguments about who the 14th Amendment was really intended to protect, but the current reading extends 14^th Amendment protections to anyone in the United States.

Even if the 14^th Amendment didn’t exist, there are still sound reasons to allow any injured person to pursue a personal injury claim. For example, one large and important purpose of our injury law system it to punish and deter negligent or otherwise wrongful conduct. That legitimate purpose of any legal system, deterring conduct likely to injure others, exists whether or not the person who is injured has violated other laws.

We don’t for example, deny people the right to pursue a lawsuit if they are behind in their rent, have experimented with illegal drugs, or occasionally drive above the speed limit. Of course, illegal immigration is arguably a more serious offense than any of those, it is, in fact, a crime under current U.S. Law, but the reader might consider balancing the deterrence of injury causing behavior as a valid outcome.

Tricky Issue: Lost Wages

In many personal injury cases, the claimant will seek to recover for pain and suffering as well as for lost wages.  While the immigrant is free to recover for pain and suffering in just the same way as anyone else in the United States, claims for lost wages can be tricky. Particularly where the immigrant has no authorization to work in the United States, lost wages recovery may be limited to wages that would have or could have been earned in the immigrant’s home country.

Threats and Fear of Being Caught

When the immigrant is out of status or is undocumented, they may have a significant fear of arrest and/or deportation by the immigration authorities. The immigrant may fear being reported to the authorities in retaliation for pursuing a claim, or arrest “at the courthouse,” or any number of other possible scenarios. Here are a few points that may be of comfort for the injured immigrant:

1. Your own lawyer is ethically prohibited from reporting you to the authorities
2. A lawyer working for the other side in a case is ethically prohibited from threatening to report you to prevent you from asserting a claim
3. If the other side is not already aware of your immigration status, your lawyer can take steps to prevent the other side of the case from ever learning about it
4. Your immigration status is irrelevant to your case, it does not prove or disprove the other side’s fault or your damages. Because of this, most courts will grant motions to exclude discussion of your immigration status
5. You don’t have to have a social security number to pursue an injury claim
6. Over 90 percent of injury cases are settled without the parties ever having to enter a courthouse
7. If you request it, your lawyer can take steps to prevent the other side in a case from learning where you live

The post Personal Injury and the Undocumented Immigrant appeared first on J. Murphy Firm.

The case which brought us all together was an emotional one and involved an infant suffering from a very serious injury.

As is commonly the case where a child suffers such a serious injury, the county office of Children, Youth, and Families (“CYF”) started an investigation into whether the family conditions were safe for the children. The CYF case involved an investigation of both parents as potential risks of harm or abuse to the children.

In addition to being one of the subjects of the CYF investigation, my client, the mother of the injured child, was criminally charged on the allegation that she caused or was otherwise at criminal fault for the injuries.

The father of the injured child was not criminally charged, and, in fact, he is the person who hired me to defend the mother. Before I was hired by the father, I had multiple meetings with him to discuss the facts of the case, his concerns, potential defense strategies, and the like. I presume that these meetings were also used by the father to assess my intelligence, skill, and temperament.

On the day in question, we were all down at family court. The mother was still in jail awaiting trial on the criminal charges, but the father was present, along with the oldest daughter of the family (3 years old). We had information that CYF was going to drop the family law case against both parents, which we were all pretty happy about.

While we were waiting for our case to be called, the father was speaking with a social worker about certain details of the still ongoing criminal case against the mother.

In particular, he was talking about my ongoing efforts to get certain medical records not provided in discovery relating to the quality of medical care received by the injured child. Speaking to the social worker, I offered part of a strategy to have the father order the medical records himself under the belief that he could obtain the medical records at a considerably lower cost than I could.

At this point my colleague, the father’s lawyer for the Family/CYF case, interjected. She didn’t want him her client, signing anything. She indicated a concern that signing for medical records would expose him to a significant cost. Then significant agitation and anger manifested in her tone and volume. It went something like this:

Colleague: In fact, don’t talk to my client. You talk to me, not my client. You know of my representation and you know better than that.

Me: What is the purpose of this posturing?

Colleague: You are trying to get him to sign for medicals which will cost him thousands of dollars and there are other ways to get those records – we do it all the time. These people don’t have a lot of money. You have already been paid for this case, handsomely, I might add, and I’m telling you that you talk to me not my client.

Me: Ok, I will honor your request.

Colleague: It’s not a request, I’m not asking, it’s right there in 4.1, you should know that you aren’t allowed to speak with represented parties, and you knew I was representing him. What you are doing is shifting the cost of those medicals, which will be thousands of dollars.

Me: No, it won’t cost that, people are entitled to copies of their own medical records for free or nominal charge, [name of another lawyer] taught me the procedure.

Colleague: I know [name of another lawyer]. It doesn’t work that way. You talk to me not my client. If you want to talk to my client you do that through me. You know the rules, you have to know better than that, what you are doing is going to cost them thousands of dollars that they don’t have. You don’t talk to my client.

Me: What do you want me to do if your client calls me?

Colleague: I don’t control my client.

Things had escalated quickly. I asked my colleague for a word in private but she wasn’t interested in speaking out the earshot of the clients, social workers, the child that was there (by then hiding under the chairs), and the CYF representative.

Observations

My colleague’s behavior was highly unprofessional. Her client did not hire her to throw a tantrum and her doing so was unnecessary and probably quite stressful for him. My colleague could have easily asked me for a word in private and expressed her concerns, lawyers do this all the time and there was no legitimate reason not to do so.

There may have been an illegitimate reason for making sure her client saw and heard her yell at me and accuse me of unprofessional, unethical and irresponsible conduct. Why put on such a show when the objective could be accomplished with a private conversation? Why refuse to discuss the matter privately? I have my suspicions, but I will leave you to ponder what benefit could accrue to my colleague airing these false accusations in the way she did.

Hilariously, my colleague was wrong on almost every premise underlying her anger, indignation, and disgust:

• It is Rule 4.2, not Rule 4.1, which governs lawyers’ communications with represented parties
• Rule 4.2 is designed to prevent attorneys with adverse interests from directly contacting a represented party. For example, the lawyer for the “other side” in a case isn’t supposed to talk to you about the case without your lawyer present. I was not on the other side.
• Additionally Rule 4.2 prohibits attorneys from making contact with represented parties in regard to the subject for which they are represented. Even if I had been on the “other side” of the family case, I could talk about baseball scores, weather, and, in fact, strategies to order medical records without breaking Rule 4.2
• I was talking to the social worker, not my colleague’s client, in any event.
• I was trying to save money for both her client and mine. Unknown to my colleague was the fact that the medical records provider, Verisma, had themselves suggested the strategy I was proposing as a way to save the family the cost of getting medical records.

Conclusions

I have written about this personality type before in my article about fake leadership in the law. Unfortunately, I have also met this personality several times in real life. They are always quick to become incredibly angry about some imaginary thing you supposedly did. They will never tolerate any reasoned argument that you did not do what they falsely accuse you of, or that perhaps their emotional response is overblown.

This sort of behavior is a pathology that damages my profession. It is a projection of the bad actor’s own poor ethics, greed, and unprofessionalism onto another.

Known to my colleague was the fact that, in perhaps 30 minutes, the family case for which she represented the father for would be over. Also known to my colleague was the fact that my representation of the mother would continue into late summer and that, in my colleague’s estimation, I had been “handsomely” paid for that case.

There is an accepted truth that people intend the natural consequences of their behavior.

My colleague had no concern whatsoever that her behavior might damage the ability of my client and her family to take comfort and support from my representation. My colleague had no concern that her behavior might create a lingering question of my trustworthiness and competence.

I will leave it to you to decide what the natural consequences of damage like that might be and whether my colleague intended those.

If you or a loved one have suffered from a personal injury-related incident, please contact me and my law firm.

The post When Lawyers Scream at Lawyers appeared first on J. Murphy Firm.

The vast majority of motorcycle crash cases are the result of another driver, usually operating a normal passenger vehicle, not seeing the motorcyclist or not judging the motorcyclists’ speed and position properly. Approximately two-thirds of motorcycle crashes where another vehicle is involved are caused by the other driver violating the cyclists’ right of way.

As a legal matter, most of the mistakes I am going to list are actually the other driver’s fault. Unfortunately, the laws of the road and the laws of physics aren’t always the same. As a motorcyclist, you will have to assume that you are invisible to other drivers.

Car Door

This is a pretty common scenario. A motorcyclist is driving in between two lanes of cars and a driver opens his car door right in front of the motorcyclist. Just because you will fit doesn’t mean you should try. Don’t give in to the temptation of squeezing past traffic and stay out of the deadly area between lanes of traffic or between traffic and parked cars.

Left Turn

Another common type of motorcycle accident is where another driver makes a left turn right in front of the oncoming motorcyclist. The average driver is looking out for other cars, and may not see, notice, or grasp the speed of an oncoming motorcycle. Drive defensively and watch out for drivers who might turn left in front of you. It is a good idea for all motorcyclists to get in the mindset that other drivers are simply less likely to see them, and consider that in all situations.

Sharp Corner

This is more common with newer motorcyclists. Not all curves in the road have a constant radius and the speed you enter a curve may not be appropriate throughout the entire curve. Unless you can see the entire curve or are already familiar with it, be careful with your speed and err on the side of caution.

Alcohol

Operating a motorcycle presents challenges and risks far in excess of those involved in operating a normal car or truck. If it is a bad idea to drive a car under the influence of alcohol or drugs, it is more than doubly so with a motorcycle. Never, ever, operate a motorcycle when under the influence.

Gravel

This is a variation on the sharp corner problem. Here you are negotiating a curve, or hill, or trying to stop and there is gravel or loose dirt, or even spilled oil on the roadway. These are possibly hundreds of times more dangerous on a motorcycle. Keep your eyes out for these potential death traps and avoid them at all costs. Never trust that road ahead which you can’t see will be clear of these wipe out hazards.

Rain

In his hit, “You May Be Right,” rock star Billy Joel sang about how driving your motorcycle home in the rain proves that you are insane. The good news is that motorcycle and tire technology have both come a long way since that song was released in 1980. While it won’t be pleasant, riding a motorcycle in the rain is a lot safer today. Remember that metal surfaces like streetcar tracks will be extra slippery and take your time.

Lane Changes

This is another nightmare scenario caused by auto drivers not seeing motorcycles. You should anticipate that auto drivers are unlikely to see you and may change lanes in front of you, or even potentially drive into you. Whatever you do, don’t make a crash like this more likely by lingering in the blind spots of cars, vans, and trucks.

We do hope that you enjoy the spring biking season. Please be careful and anticipate that you will be invisible to other drivers. Happy trails!

If you or a loved one has suffered from a personal injury due to a motorcycle accident, contact us.

The post Potentially Lethal Mistakes Motorcyclists Make appeared first on J. Murphy Firm.

The Story

According to KDKA, eighteen-year-old Taylor Wible, of the Hill District, was arrested late Thursday night. McCandless Police said he beat a woman who was getting into her parked car outside of the Longhorn Steakhouse at McCandless Crossing. Police also said they found brass knuckles, a pair of black gloves, and a cell phone on the suspect.

Duty of Care

Premises liability lawyers, or “slip and fall” lawyers, deal with the legal duties owed by owners and occupiers of land to people coming onto that land. In the language of premises liability lawyers, owners, and occupiers of land are called “possessors.” The people coming onto the land are generally referred to as “entrants.” Business visitors are one type of entrant and are owed the highest duty of care of any entrant upon the land. In the context of a shopping mall, the customers are business visitors.

The duty owed to the business visitor is, “To inspect, repair, and make safe the premises from all known or knowable risks of harm to the business visitor.” The business visitor is owed this because they are presumably spending money.

Breach of Duty

The duty has not breached the instant a dangerous condition comes into existence. It is breached when the possessor knows of the condition and fails to take reasonable steps to protect invitees. It is also when the possessor fails to take reasonable steps to inspect the premises for the occurrence or development of dangerous conditions.

Of course, dangerous conditions can range from a puddle of water on the floor all the way up to the premises being infested with Legionnaires’ disease, biting rats, or parasitic insects. These are all the sorts of things that the possessor must make the premises safe against on behalf of business visitors.

Third parties that are neither the entrant nor the possessor can themselves be dangerous conditions. This is particularly when the possessor knows that the third party is on, or is coming on, the premises for the purpose of exacting nefarious intentions upon legitimate business visitors.

This particular case did not happen inside a business, but rather in the parking lot of one – the parking lot of the McCandless Crossing Shopping Center. The question becomes: “Did McCandless Crossing know, or should it have known that this person was on the premises, allegedly carrying an illegal weapon and intending to harm people?” The answer to that question will turn on multiple factors. Whether there was security for McCandless Crossing and whether that security was adequate for the job. Whether McCandless Crossing was aware of previous similar crimes on their property. And whether or not those crimes were reported to police.

Actual Notice

McCandless Crossing is now on actual notice that third parties are coming onto its premises to commit crimes against people in its parking lot(s). They may escape liability for Wible’s alleged crime but they may not be so lucky next time. I do hope that McCandless Crossing takes notice of, and action in regard to, this very serious threat. And the action must come sooner rather than later because neither the courts nor potential shoppers will have mercy on them if they do not.

If you’ve been the victim of a crime like this, please contact my team and I and we will help you as soon as possible.

The post Outrage in the North Hills appeared first on J. Murphy Firm.

What is Wrongful Death?

People die every day, usually because of natural causes. When someone’s life is cut short due to the negligence of someone else, that is called a wrongful death action. We handle wrongful death actions in Pittsburgh and all over Pennsylvania.

When we put on a wrongful death action, it involves two separate types of claims on behalf of the survivors of the person who was killed. One type of claim is called a Death Action, and the other type of claim is called a Survival Action.

What is the difference between a Death Action and a Survival Action?

There are important differences between a death action and a survival action. Those differences have drastic effects on who can bring the case or share in the proceeds of the case. Additionally, how the proceeds of the case can be divided and minimizing the tax liability of those sharing in the proceeds.

Death Actions in Pennsylvania

As noted above, a wrongful death action involves a death action and a survival action. The death action in wrongful death case involves the survivors of the deceased making a claim for the loss of their loved one. People have a right to the love, support, companionship, guidance, and advice of their loved ones. When that loved one is killed by negligence or wrongful conduct, the survivors have a right to sue for what they have lost.

Because it represents the survivors suing for their own loss, the wrongful death claim is owned by the survivors. The basis of the wrongful death action is that the survivors are recovering for a loss. Meaning, payment of a wrongful death settlement or verdict to the survivors of the decedent is generally tax-free.

Survival Actions in Pennsylvania

The survival action in a wrongful death action involves claims for pain and suffering that the deceased went through before they died. If the deceased had lived, they would have been able to sue on their own for these damages. That right to sue for these damages survive the death of the deceased. That is why this action is called a survival action, it is the survival of claims the deceased had at their death.

The survival action is a claim for losses suffered by the deceased themselves. Because of this, the survival claim is the property of the estate of the deceased. Therefore it is subject to estate tax, if large enough.

Lost Wages

A lost wages claim is a claim for wages the deceased would have earned, had they survived. Such a claim for lost wages is normally a part of a survival action. If the deceased had actually earned the money being recovered in the lost wages claim, they would have had to pay income tax on those earnings. As a result, any part of the case that is a lost wage claim is subject to federal income taxes on wages.

Follow us on Facebook or jmurphyfirm.com for Part 2 of this blog. In the second part, I will discuss how we protect our clients from paying more than their fair share of taxes due on a wrongful death settlement.

The post Representing the Survivors: Wrongful Death Actions appeared first on J. Murphy Firm.

I was recently interviewed about the personal injury business and the interviewer asked me what I thought was the biggest change or challenge facing the personal injury business. I pointed out that life has become very busy and people simply don’t have the time to take half a day off and drive into the city to meet with a lawyer.

In many cases, people are so time strapped that they will fail to pursue a valuable and legitimate personal injury claim rather than deal with the hassle of hiring a lawyer, let alone the hassle of dealing with one.

We have noticed that, because of this, a certain portion of people will try and represent themselves in an injury case. Of course, we advise against that, but if you insist on representing yourself, I have compiled a list of ten mistakes that people commonly make.

Before we get started, if you are settling a case yourself it means you are going to be dealing with an insurance adjuster. That adjuster is going to be evaluating your ability to present yourself and your claim as a factor in how much they will pay to settle the claim.

The adjuster will be assessing, among other things, their litigation risk – how likely is it that this matter is going to court if they don’t settle. When someone represents themselves, it does not mean that the litigation risk is automatically zero because for all they know you are an attorney, or even another adjuster, settling their own case.

Another thing the adjuster will be doing is setting and adjusting reserves for payment of the claim. Click here for a link to my article on reserves.

Your ability to avoid these mistakes can make a large difference in how much your case settles for, or even if they will settle at all.

1. Misuse of jargon

The personal injury industry, like any industry, has its own “jargon.” If you don’t know it, or don’t understand it, the adjuster will know that you don’t know what you are doing and they will adjust the reserve and ultimate settlement of your claim accordingly. There are hundreds of common personal industry terms such as “PIP,” “BI,” Tort option,” “UM/UIM,” “Intercompany Arbitration,” ”Loss reserve,” and the like. If you don’t know these terms it will show, and it will negatively affect your prospects for settlement at full value. That being said, you should read up on lawsuit settlement terminology.

2. Trying to relate to similar cases

How much money are you going to demand in order to settle your claim? How would you come up with that number? Maybe you know someone that had a similar case, and you think that you can just demand the same amount.

This is foolish thinking.  

Even assuming that the other person told you the truth about how much they got, everyone knows that no two claims are the same – all the adjuster has to do is show you how your claim is different and you have no basis for what you are asking for. Refuse to give information about how you came up with your demand amount.

3. Attempting to save on attorney fees

Who cares if you get less, you won’t have to pay attorney fees, right? You may have a case that is worth $10,000, but if an attorney handles it, they will take 40 percent and you will only get $6,000. So you can settle it for $7,000 and come out ahead, right?

Think again, because the adjuster on the other side of this has done the same thing. Once they figured out that you aren’t going to have to pay attorney’s fees, in their mind, they lowered the amount they have to pay you.

In the above scenario, you would be starting at $6,000 and working down off that number. If your sole motivation in representing yourself is to save fees, a better place to start might be to simply ask. Many attorneys will negotiate a lower fee for settled cases if you ask, so ask.

4. Not understanding valuation

A lot of people simply demand crazy numbers coming out of the gate and think that this will give them room to negotiate. It won’t.

Making an unrealistically high demand for settlement simply marks you as a non-professional who doesn’t know what you are doing. Sure, a case with similar injuries and different facts may have settled for a lot more, but the average person has no idea of how those factors relate.

Even a case with the exact same injuries will settle for more if the injuries are caused by a drunk driver, or on purpose, right? Maybe, maybe not. It is possible that if you stand on the fact that the driver did it on purpose, the insurer will deny coverage outright, as insurance only covers negligent acts and does not cover intentional acts.

5. Trying to rush to settle

Everybody knows that good things come to those who wait. In my blog, I discuss at length the risks of settling too quickly.

You should understand that adjusters work normal business hours – the same business hours that you likely work. Getting an adjuster on the phone is hard enough for lawyers who do it for a living, it is going to be a real hassle for you. Plan for time to chase the adjuster down.

6. Adverse info in medical records

One of the main factors in case valuation is the nature of the medical treatment and medicines that were required to rehabilitate the injured party. This information is commonly found in medical records. Unfortunately, the medical records may have all manner of things in them that you would rather the other side not know about, for example similar prior injuries, drug habits or drug treatment records, etc.

Medical records also commonly contain duplicates of the same record or sheets that have no information that is valuable to the settlement process. You may wish to have a medical secretary or other expert in working with medical records go over your records and explain what they say before you use them to prove an injury.

7. Poor communication

In the part above about the rush to settle, I spoke briefly about how the difficulty of getting the adjuster on the phone when you are working normal hours can wear you down to the point that you will take a settlement just to get the process over with.

There are other factors that will also negatively affect the settlement negotiation process, for example. Is there a baby crying or a dog barking in the background when you speak? Do you have the ability to easily send and receive faxes? Are you comfortable giving your social security number to the adjuster (they will need it to issue a check to you)?

These subtle interruptions will work the same magic – in favor of the adjuster.

Plan for quiet communications time where you can concentrate on what you are saying and what is being said back.

8. Letting pride get in the way

You may have always wanted to be a lawyer. Maybe people in your family told you that you should be a lawyer because you always seem to “win” family arguments. Or, maybe you HATE lawyers, and can’t stand the thought of having to deal with one. Or maybe you just want the “thrill” of being able to brag about settling your case without a lawyer.

These people are all selling themselves nonsense.

If you were sick, would you diagnose and treat yourself because you always wanted to be a doctor? If family members told you that you should have been a doctor, does that mean you should operate on yourself?

Plenty of people hate doctors, but guess where they go when they need medicine? Sure, you can’t get medicine without a doctor’s prescription, but honestly, would you if you could? Certainly not, you might kill yourself with an incorrect dose, improper medicine, or even a drug interaction.

Those bragging rights you are dreaming of – blah – we both know you will be lying when you talk about what happened while you settled your own case and how cool and tough you were.  Hire a lawyer, get all the money a professional can get for you, and just tell people that you did it on your own, you can still tell tall tales about how you settled it yourself, and they will still be lies, but you will get the money easier.

9. Subrogation, Negotiation, and Litigation

If you suffered an injury, you likely paid for your medical treatment using your insurance coverage. Almost all private insurance plans reserve a right of subrogation – when you recover money for your injuries, they are entitled to recover what they paid for your medical care, out of your settlement. The insurer has a subrogation lien on your settlement proceeds

Most people are unaware that they have a contractual duty to protect the subrogation rights of their health insurance company, and either don’t know about the subrogation rights of their insurer or choose to ignore them to get more money. Even fewer people are aware of how to negotiate the settlement of a subrogation lien or how to legally avoid it altogether.

Your insurer will likely find out about your settlement, as they have their ways. When they do, they will likely send a letter requesting you reimburse them for the costs of your treatment.  When you don’t have the money, or have already spent it, you may find yourself pulled into a lawsuit.

Even worse, if you received government funded medical care to recover from your injuries, the subrogation is statutory, meaning it is an automatic lien on your property, bank accounts, and the like.

Few people will try and settle a case that is big enough for subrogation to be a serious matter on their own, but it is a consideration that can come up faster and harder than you might think. Medical prices have been skyrocketing for years and the average case equals or exceeds the total amount of any settlement you or your lawyers might negotiate.

My advice: If you used your medical insurance to pay for any significant part of your treatment, seek counsel.

10. Taxation without representation

As a general matter, the proceeds of a personal injury case are not taxable.

The legal theory is that you are recovering for something you loss, not earning income. But what about where part of the settlement is for lost wages?

If you had worked and earned those wages, you would’ve had to pay income taxes on those wages, meaning you will have to report and pay taxes on settlement proceeds earmarked as lost wages.

This is just one example of some of the tricky tax angles you can get into when dealing with settlement of a personal injury case. Even if they know that taxes are due, most people wouldn’t know how to figure them out or report them. If you are recovering lost wages or lost future earnings, at least consult with an accountant.

That’s all the advice I have to offer on the matter, listen to these tips and do your research if you chose to represent yourself in a case. If, after reading these tips, you have decided that you would prefer a lawyer, my team gives free consultations and legal advice. Just click the link here to contact us.

The post Ten Mistakes People Make When Representing Themselves And How to Avoid Them appeared first on J. Murphy Firm.

Commercial Vehicle Accidents are among the most costly. Commercial Vehicle Accidents involve heavier vehicles which sometimes carry dangerous cargo and are among the highest of all auto accident settlements. Because of this, commercial drivers are trained to a higher standard than your everyday drivers. In fact, a commercial driver’s license, or CDL, is an entirely separate license required to drive commercial vehicles.

One of the techniques that commercial drivers are trained to use is the “Smith System.” The Smith System is five simple rules which, if followed, can drastically cut the likelihood of being in an accident.

The Smith System owes its name to Harold Smith, who was a World War II veteran that had served as a landing craft operator. After the war, Smith saw a billboard urging drivers to be safe and pointing out the number of fatalities that occur because of auto accidents.

He noticed that there were more people being killed in auto accidents than there were killed in the war. This motivated him to invent, publicize and promote what is now known as…

THE SMITH SYSTEM

1. Aim High

The first rule for this method is “Aim high in steering.” Staying alert of the dangers and traffic ahead not only avoids rear-end collisions but also can alert other drivers behind your vehicle to slow down. The driver should steer and focus their attention high, so as to view the road as a whole and not just the next few feet ahead.

2. The Big Picture

“Be aware of your surroundings at all times” may seem obvious to say, but distracted drivers are just as dangerous as intoxicated ones. Erratic and angry drivers take up a large portion of the traffic we see daily, so avoid major accidents by noticing how other drivers behave on the road. Having the whole picture means that you are doing your part to keep your vehicle as safe as possible while moving 100 ft a second. There are a variety of hazards between your own vehicle and other drivers, and a keen awareness of these dangers will reduce these risks.

3. Keep Your Eyes Moving

The third standard of the Smith System asks drivers to remain alert. Energy drinks can only do so much before they cause the body to crash, and any repetitive motion sends us into a trance. Consistent eye movement prevents your body from entering the trance state, keeping you alert to every driving condition ahead of you.

4. Leave Yourself an Out

The fourth principle of the Smith System states to leave yourself a way out. This means to ensure that other drivers do not box you in while selecting their lanes. Do not follow other vehicles too closely, and always anticipate what choices other drivers make.

5. Make Sure They See You

The worst thing a driver can do is assume. Assume other drivers can see them, assume other drivers are not dangerous or even assume that they will just get to their destination safely. The final rule for the Smith System is to “Make Sure You Are Seen”. This rule prevents accidents by removing assumptions made behind the wheel. As a driver, make sure that other drivers can see you and anticipate your movements. If you feel you are coming into another driver’s blind spot, use the horn to get their attention.

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Insurance companies are required to do this so that there is enough money set aside in reserve to settle all reported but not settled (“RBNS”) claims in the event that the insurance company goes bankrupt.

There is a tremendous business tension in placing money in reserve. Money placed in reserve cannot be used to expand the insurance company or make investments. Money held in reserve is far less profitable than money the insurance company can use as it wishes. It is in the best interest of the insurance company to get as much money out of reserve as fast as possible so that it can be used to further the company’s business interests.

At the same time, people who bought insurance selected limits and paid for those. They are entitled to have claims against them paid by the insurer up to those limits and are personally liable if the insurer cannot pay claims. Injured people are certainly interested in knowing that the insurer of someone who injured them isn’t able to gamble with money that they may ultimately be entitled to. The public also has an interest in reserves being properly set so that the costs of claims aren’t passed on to society at large.

This tension between the business interests of the insurance company and the interests of people who bought insurance, people who got hurt, and the general public is managed by the various state insurance commissions which set rules and regulations concerning, among other things, claim settlement practices including policies on how reserves must be set, when money can be released from reserve, and the like.

Understanding and estimating reserves is a very important part of what any personal injury firm has to do to represent the interests of its clients.

Let’s take the typical example of an auto accident where the at-fault driver has bodily injury liability limits of $50,000. There has been an accident, and the at-fault driver promptly notifies his insurer of the accident. The insurance company is glad to have prompt notice so that it can promptly set a reserve for the case, and that is why they strongly encourage drivers to report accidents right away.

When the at-fault driver notifies the insurer of the accident, the agent will set an initial reserve. If the driver has no information, that reserve will be set at the policy limits. On the other hand, if the driver can confirm that all parties drove away on their own, or that no ambulances were called to the scene, etc. the initial reserve might be set lower.

Over the course of the claim, the insurance company may lower reserves a few times, or not at all, depending on the information it receives. For example, if the injured party is treating only with a chiropractor and has limited tort insurance, reserves may be set low indeed as treating only with a chiropractor indicates whiplash types injuries and limited tort claimants are generally barred from pursuing claims for whiplash type injuries.

Insurance companies almost never settle for an amount in excess of the reserve. If they do, they are admitting that they didn’t have enough in reserve and that they have violated their duties to set proper reserves for all claims. If you want more than the amount in reserve, you will almost certainly have to go through the risk and expense of a trial. If you obtain more than the amount in reserve at trial, the insurer can point to the unpredictable nature of jury verdicts as the reason you get more than the reserve amount, instead of having to make a tacit admission that it violated its duties to set a proper reserve.

Good personal injury lawyers know all of this. The actual reserve amount on any given case is usually kept secret, but smart lawyers know that it exists and they avoid doing things and giving information that would allow the insurance company the excuse it wants to lower reserves and return that money to its general fund.

Smart personal injury lawyers are careful about the information that they provide to the insurer leading up to and during settlement talks because they want the maximum amount of money available for the settlement of their client’s claim. This is not because smart personal injury lawyers fear court, but rather, it’s their duty to get their client the maximum amount of money possible with the minimum amount of risk.

I have often wondered about people who try to settle their own cases. I know they are getting less than they should, and I wonder if reserves are set lower the instant that the insurance company understands that there is no lawyer involved – they shouldn’t be, but they probably are.

I wonder how many mistakes the person representing themselves makes along the way. Do they discuss prior injuries right away?  Do they disclose that they drove their self to the hospital? Do they let the adjuster trick them into saying things like “I wasn’t hurt so bad?” Each of these and a hundred other mistakes will allow the insurer to lower the reserve, making the final offer much lower with no room to negotiate upward.

And what does the person who is representing his or herself do when presented with this lowball offer after the insurance company had used every possible way to get the reserves down as low as possible? They take it quietly. Sometimes they brag about representing themselves, but they never get full value, and there is nothing they can do about it – because they aren’t lawyers, don’t understand reserves and policies in setting reserves, and, because they are not lawyers, if they don’t like it they have no ability to sue.

An understanding of reserves and reserve policies is just one of possibly a hundred factors that go into what I believe are personal injury representation best practices.  

They say a man who represents himself in court has a fool for a client. If you are trying to settle a case for yourself with no understanding of nuances like setting reserves, it is proof that you can have a fool for a client without ever even going to court.

If you want to learn more about your personal injury case involving an auto accident or of our other practice areas, please check out our page to find out how we can assist you.

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Pursuant to DEA Regulations, cannabis is a Schedule I Drug. Under 75 Pa. C.S. §3802(d)(iii) someone who drives with any amount of the metabolites (the chemical byproducts left in your system as the drug breaks down) of any Schedule I Drug in their system is guilty of violating the Pennsylvania DUI law.

There is no exception in the DUI law for medical cannabis cardholders. See my earlier article on the perverse evolution of DUI Law.

According to the U.S. National Library of Medicine, the metabolites of cannabis are detectable in the user’s system for up to thirty days after they stop using the drug. Because of this, if you are a medical cannabis user, you risk a DUI every time you get behind the wheel.

Until the DUI law changes, the only way you can be legal enough to drive is to discontinue the use of cannabis for thirty days. In the meantime, while we are waiting for the law to change to accommodate lawful users of cannabis-based medicines, if you get pulled over, follow my previous advice on what to do when you are stopped for DUI.

Already have a DUI case? Explore Joe’s Practice Areas for more information on how we can help you settle your case.

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