While there is no specific time limit for one to claim injuries following an auto accident, the practical matter is that if you are going to seek care, you should not delay too long.
You will be presenting your claim to an insurance company. What you need to know is that the role of an insurance company is to 1) pay you nothing, and if they cannot do that, then 2) to pay you as little as possible.
The simple rule is that so long as you can prove your medical care and injuries are related to the accident, you should get a recovery. (As you will learn next, it is not that easy).
Insurance companies love delays in care. If you delay care, the insurance company will contend that the medical care you claim is not related to the accident. They will argue that if it were related, you would have started in time closer to the accident but you did not, so not related.
The other thing insurance companies love is “gaps” in care. You are in an accident, you get care, then you take a month off, then start… That is a “gap” in care. The gap in care serves as a break in the chain connecting the injuries and medical care to the accident. This will make the care following the gap harder to connect to the accident.
The reason delays and gaps are so bad is because they make it harder for you to prove the later medical care is related, and I promise, the insurance companies and their attorneys will fight this.
The easiest way to win a fight with an insurance company is to avoid the fight—don’t even give them the opportunity to make these arguments. That is one of the ways we can help.
The better you understand, the better decisions you can make for you and your own case.
A mediation is another term for a settlement conference in a personal injury case. The person that assists the parties in reaching a settlement is called the mediator. Unlike an arbitration where an arbitrator decides the case through a decision following the presentation by both parties, a mediator has no authority or power to resolve the case.
In a mediation, only the parties have the authority or ability to settle the case and only if both sides reach an agreement to do so.
Prior to the mediation, each side submits a memorandum outlining their respective positions so that the mediator has an understanding of the case. Mediations usually take place at the office of a mediator and only the parties (and their respective attorneys) attend.
Each party is placed in a separate room with only his/her counsel present. Separating the parties helps to ensure a less-stressful, non-confrontational environment. Everything discussed at the mediation is confidential and cannot be used later against either party at trial should their case not settle.
This confidentiality enables the parties to freely discuss their case without the fear that what they say be used against them later.
The mediator usually discusses the case with the plaintiff (persons asking for money from the defendant) first. The mediator wants to know the plaintiff’s positions and what amount the plaintiff is willing to accept as a settlement.
The plaintiff’s attorney will usually speak on behalf of the client, though the mediator may ask some questions or want to hear directly from the plaintiff. The mediator, who is impartial, will usually present the plaintiff with the mediator’s perspective of the case and will often point out any problems the plaintiff may have at a trial should the plaintiff not settle.
The mediator will then meet with the defendant to share the information received from the plaintiff (including the plaintiff’s initial offer to settle). The mediator will usually point out the problems with the defendant’s case and provide the defendant with the risks he or she may face at trial should the matter not settle.
If the parties reach an amount they both agree upon, the mediator will usually draft a brief settlement agreement for the parties and their counsel to review and sign. If they do so, they will have settled their case.
The parties will typically agree that despite the signing of the agreement, they will prepare a more formal agreement to be signed by the parties that contain more extensive language- such as confidentiality clauses, etc.
If they do not reach an agreement they will proceed with the case through the court system. The parties can still attempt to settle their case as they move forward in litigation.
What happens if a client’s personal injury case does not settle? What can a client expect to occur at trial? A trial date and length of trial (days or weeks) is agreed upon by the parties before the trial is scheduled and is typically dependent upon the complexity of the case and the number of witnesses each side intends to call to testify.
Most trials last more than a day and are tried before a jury (a jury is required if either side requests it). Both parties are expected to be present during the entire trial, while witnesses for either side are not permitted in the courtroom until they called to testify. The general public is permitted to watch, though spectators are generally comprised of friends, family and colleagues of the parties or their attorneys.
A trial begins with jury selection. The court ushers in a group of jurors, typically in the range of 35-55. The longer the trial is to last the greater the pool of jurors. The parties agree to the number of jurors and alternate jurors prior to the trial.
The typical number is eight with one or possibly two alternates (should an unforeseen event prevent one or two jurors from attending). Jury selection begins with the judge asking the jurors questions, then follows with the attorneys for each party asking specific follow-up questions. Jurors are then struck by the court or each side outside their presence, leaving the parties with 8 jurors (and one or two alternates).
To prevail in Arizona Superior Court, either party must obtain a positive verdict from at least 6 of 8 of the jurors. A unanimous verdict is not required in state court (federal court requires a unanimous verdict for either side to prevail).
After a jury is selected each side presents an opening statement beginning with the plaintiff (person that filed the lawsuit). After the defendant presents an opening statement, the plaintiff presents what is referred to as his or her case-in-chief. This means that the plaintiff presents all of his or her witnesses until the plaintiff is finished, at which time the plaintiff rests.
During the plaintiff’s case in chief, the plaintiff’s chosen witnesses are called to the stand. The order of the examination for each of the plaintiff’s witnesses is done as follows: (1) direct exam (performed by plaintiff’s attorney); (2) cross exam (performed by defendant’s attorney; (3) redirect exam (performed by plaintiff’s attorney).
After all of the plaintiff’s witnesses are examined, the plaintiff rests. The defendant then calls his or her witnesses which are performed in the same manner, though the roles of the plaintiff’s attorney and defendant’s attorney are reversed. After defendant’s last witness, defendant informs the court that defendant rests. The plaintiff then presents a closing argument followed by defendant’s closing argument.
After defendant’s closing argument, plaintiff is permitted another closing argument to address defendant’s closing argument. This is commonly referred to as a “rebuttal closing argument.” The court will instruct the jury on the law using jury instructions.
This is either done before the parties present their closing arguments or after the parties present their closing arguments, depending upon the judge’s preference (usually with preferences from the attorneys for the parties). The jury is then charged by the court with deliberating privately, choosing a foreperson, and rendering a decision.
What can you do to support your potential claim after you sustain an injury from a slip, trip or fall?
First, report the injury to the business. Second, take photos of what you believe caused the fall and the surrounding area. Third, take pictures of your injuries (if there are outward physical signs).
In Arizona, the owner of a business is required to use reasonable care to warn, protect or fix an unreasonable dangerous condition of which the business had notice. A business has notice if its employees created the condition, its employees actually knew of the condition or the condition existed for a sufficient length of time that the business or its employees should have known of the condition.
It is important to understand that whatever caused the fall must ultimately be determined to be an unreasonably dangerous condition. As such, it is important to understand what exactly caused you to fall and to photograph or otherwise document the condition (if possible to do so).
The condition may be a rapid change in elevation (such as an improper step, or a large difference in height between one part of a walkway and another) or not enough lighting to enable you to see obstacles or both. So, when documenting the specific condition(s), it is important to also note the context of the premises; is the condition located in a noisy and crowded area, etc.
Finally, as with all personal injury cases, it is important to document any expenses you may have incurred as a result of the fall. You should record when and where you treated for your injuries and where you had prescriptions filled etc.
While your attorney will ultimately obtain your medical records and attempt to collect all information concerning your expenses and losses, writing this information down early on will assist in the process of supporting your potential claim.
Slips. Trips. Stumbles. Falls. These happen in AZ grocery stores every day.
Often, a few bumps and bruises occur. Sometimes, more serious injuries occur.
When the injuries are more serious, is the store liable (called “premises liability”)? How do you know if you have a claim?
Generally, to hold a store liable for injuries, you must prove several things:
A dangerous condition existed;
The store had notice of it;
The store failed to remedy, safeguard or warn you; and
You sustained injury.
Almost always, the first element exists A danger. Water, other liquid on the floor, soiled/smashed produce, etc… Foreign materials on the highly polished floor is a danger.
The second prong is the hardest: Proving the store had notice. Where did it come from? How long had it been there? Did the store or its employees have “direct knowledge”?
These can be hard Qs to answer. And, generally, if you cannot answer them, you likely cannot win your claim.
In order to get to #3, you must prove #2. (See our explanation for #2 above).
Difficult cases. Not many law firms will even take a premises liability case. But we do.
One of the primary questions clients have is how long it will take to settle their case. A personal injury case may be resolved by verdict at trial or by settlement, either before or after filing a lawsuit. While the vast majority of cases do settle, they do not settle if neither the claimant nor the insurance company can agree to a settlement.
Settlement is entirely dependent upon both parties reaching an agreement. This leads to the often asked question: How much time do the parties have to settle a claim on a personal injury case?
There is no specifically set time period. If a claimant has a claim against an individual person or company, as op posed to a governmental entity, the claimant typically has two years from the date of the injury to file a lawsuit (though this time period may be longer or shorter, depending on the type of claim and the status of the defendant).
Thus, the claimant and the at-fault person’s insurance company can negotiate the claim for at least two years before the claimant must file a lawsuit or lose the claim forever. If the potential defendant is a governmental entity, the claimant has 180 days from the date of the injury to serve a Notice of Claim on the proper representative of the governmental entity and one year from the date of the injury to file a lawsuit.
If the claimant fails to serve the government representative or government employee with a Notice of Claim within 180 days of the injury, the claimant loses his or her claim, even if the claimant files a lawsuit within the one year statute of limitations.
These deadlines are called statutes of limitations and they set a bright-line deadline that a claimant has to file a lawsuit. A statute of limitations does not set a specific date for which the claim must be settled, but it does provide a claimant with a deadline for filing a lawsuit.
There is no set deadline that exists for settling a claim- it is dependent upon whether the claimant and the potential defendant can reach an agreement. There is only a set deadline for filing a lawsuit. Consequently, attempts at settling a claim before filing a lawsuit must occur within the relevant statute of limitations periods.
If the claimant cannot settle the claim and a lawsuit is filed, both the claimant and the defendant can still attempt to settle the claim, up to the time of trial, and even after there is a jury verdict. Thus, there is no set time for settling a claim, there is only a deadline for pursuing the claim through the court system.
Really didn’t need this in your life right now, and don’t know what to do. Would like to hire an attorney to help, but really, cannot afford that right now.
Right? Nope, wrong.
As a law firm that assists people in the above scenario every day, we can help. And, there is no out of pocket cost to you for our help. None. Zero. Not now. Not ever.
How can this be? It’s because, for 25 years, we have handled these cases on a percentage fee basis. What does that mean?
The person who caused the crash has insurance. Under AZ law, the insurance is responsible for paying your property damage, your medical bills, your lost wages and for your ‘pain and suffering’.
When we are involved, we're able to get these cases resolved to pay all of the above, plus our legal percentage, our costs and still put money in your pocket.
Umm…really? Is that true? Yes, 100%. It is true, and there are no strings attached. No hidden language.
So, stressed at how you are going to handle this all? Simple answer: Don’t.
Call us, and we will take care of it all. You can focus on your medical care, your injuries, getting better. We will take the stress off your shoulders and make sure it all gets handled the right way.
Thus, the law affords the right to recover their full medical bills as well as compensation for any pain and suffering they endured as a result of the accident.
While the patient may not have paid the full amount of the medical bills (due to the fact that their health insurance paid some amount of the bill), the law provides clients with the right to receive compensation for the entire amount of the bill.
Whether a lawyer is required to pay the medical provider for treatment they provided to the patient/client directly from the settlement is usually dependent upon whether the provider received compensation from the patient’s health insurance.
Health Insurance
In Arizona, medical providers (physicians, ambulance services, hospitals) are permitted to obtain the entire amount of their medical bill regardless of whether the medical provider received compensation from the patient’s health insurance.
The medical provider is able to do this only if the patient’s injuries were the result of an at-fault third party. This right is provided by statute and can only occur where the patient’s injuries are the result of a third party. This is commonly referred to as “balance billing.” The balance owed to the medical provider may be recovered from any proceeds the patient receives as part of a settlement or verdict he or she recovers from the at-fault party.
In order to recover the balance owed, the medical provider must comply with the statutory requirements to recover, which includes recording a lien in the county where the services were provided within thirty days of providing the services (or in the case of emergency medical providers [ambulance] or hospitals, within thirty days of a client’s settlement with the at-fault party).
Whether a lawyer is required to pay the medical provider from a settlement is dependent upon whether the medical provider complied with the recording requirements. If the medical provider complied with the statutory requirements of recording a lien then the lawyer representing the client has no choice but to protect the medical provider’s claim to receive the full amount of the remaining bill and to pay the medical provider directly from any proceeds received from the client’s settlement proceeds.
The lawyer may attempt to negotiate the amount paid to the medical provider but is required to pay the medical provider regardless of whether the client agrees. If the provider failed to record the “balance bill lien” in accordance with the statutory requirements, the medical provider is not entitled to any of the proceeds.
No Health Insurance Used
In some circumstance, a medical provider may not have received payment from the client’s health insurance, either because the services provided were not covered by health insurance or because the provider refused to accept the patient’s health insurance.
In either scenario, the client is obligated to pay the provider under ordinary contract law. Thus, the client is responsible for the amounts owed. Whether the amount owed is required to be paid by the lawyer directly from a settlement or verdict is a different issue entirely and is again fact dependent. In most circumstances, a lawyer is not required to pay the provider directly from recovered proceeds but must do so if the client requests it.
While the client is responsible for the payment of the bill, the client and not the lawyer has the authority to determine whether the bill should be paid from the recovery.
Thus, the client can direct the attorney to pay the bill from the recovery or can request that the proceeds be paid to the client. Regardless, the client is responsible for paying the bill and will be in breach of contract should he or she fail to pay it.
In certain circumstances, a client may agree to pay a provider directly out of any recovery before ever receiving treatment. This is most commonly done with providers such as chiropractors whose services are often not covered by health insurance.
In this scenario, the medical provider has agreed to provide services on a “lien” basis meaning the services will be paid for out of any recovery based on the contract between the provider and the patient rather than by statute.
Whether the lawyer is required to pay the provider directly out of recovery is a more difficult issue that is specific to the terms and facts surrounding each particular agreement.
Of course, if you prove the store is liable, then it will only be liable for the extent of the aggravation or worsening, and not for the portion of injury that pre-existed the incident.
Premises liability cases can be difficult, and a lot of lawyers won't’ even take them.
At Zachar law Firm, we handle many premises liability cases, most often to a successful conclusion for our clients.
