Dealing With the Legal Aftermath Car Accidents
A personal story about the impact of an accident
illustration by Elizabeth Ellis
There are two things no parent should ever hear — the thud of their child being hit by an automobile and a first responder describing their child as “the victim.” But this was my experience on a hot August day two years ago. We had stopped for a quick lunch on our way to a short vacation on the Maine coast, but we ended up spending a few worried days at a hospital.
I was several steps behind my 9-year-old son when he successfully crossed one lane, but then somewhere — seemingly out of nowhere — came a car. The hit threw him some 20 feet or so.
In the end my son was very lucky. After being monitored and scanned at a local emergency room, he was airlifted to a larger hospital and again checked from head to toe. The immense medical system examined him, looking for the worst and found a skull fracture, a bunch of bruises and some ugly road rash. The whole episode cost well over my annual salary and hours of worry, paperwork and, fortunately, very little legal wrangling as our insurance covered most
of the bills.
Pedestrian and auto pedestrian collisions are on the rise — especially hit and run crashes. This leaves some to wonder if we may begin to see a reverse in the steady decline of highway fatalities and injuries. For evidence of how dangerous things were; consider, in 1973, Governor Meldrim Thomson traveled to Berlin to provide an award to the city for having no pedestrian fatalities in the previous year. Statistics were not kept in those days but now pedestrian deaths are far more rare. Of course, two big trends can be credited — fewer people walk and, for those that do, there are a plethora of safety features including crosswalks and better-designed road systems.
But another form of progress may be working against us — our ability to be constantly connected is distracting us from being alert and attentive drivers. “It’s a huge part of what’s happening in my caseload,” says Maureen Raiche Manning, a Manchester attorney who a focus on personal injury law. “Why are we in such a hurry?” and so prone to multi-task.
The state’s Supreme Court is hearing an appeal on 3 1/2 to 7 year sentence of vehicular assault that left a young man with a traumatic brain injury. The perpetrator was reading a text message, which is not explicitly against the law that bans texting while driving. The court will determine the result, but focus groups reveal that juries assume the worst when it comes to distracted drivers.
“Driving is a privilege,” Manning says. “It’s a huge trust. Drivers have an obligation to know what’s happening around them. You have to assume that a someone will dart out and look to see what’s going on and give yourself time to perceive harm.”
When an accident occurs between two parties, two separate, but related processes unfold. All are about determining fault and assessing the amount of damages and/or penalties. The state initially, through a police report and eventually through a legal proceeding, will determine whether the law was broken and, depending on the severity of the damages, if criminal charges will be brought or a simple violation. But this process doesn’t make the victim whole (covering the loss of property, medical costs or possibly the loss of income or compensation for pain and suffering), this is handled through claims against insurance companies.
Liability is governed by the laws of negligence. It is not always simple or entirely one-sided. Liability is proportional. Say, a texting pedestrian jay-walks across a road and is hit by a distracted driver. Because New Hampshire has what is called a “modified comparative fault” or “51 percent rule,” the court would have to determine the percent of liability for each party but, if the plaintiff’s liability tips over half, there is no recovery.
“If the plaintiff is 50 percent at fault, they can recover 50 percent of their damages,” explains Manning. “It is only if they are more than 50 percent (liable) that they cannot recover at all.”
So, if you are in an accident, no matter how minor, call the police and have them make a report. Exchanging names and insurance information is not enough. By law, any damage over $1,000 must be reported and it doesn’t take much for this to be surpassed. Manning says too many people fail to “document the crash” with a police report. Be sure to read the report carefully and correct any errors.
Resist the instinct to accept blame, advises Concord attorney Mark Mallory, who works for insurance companies as well as for plaintiffs. “You have a duty to cooperate,” he says. It’s OK to “say ‘I’m sorry,’ but do not accept legal liability.”
If there is any doubt about your health condition, “get medical treatment sooner rather than later” Manning says. “It’s better for your health and your case.”
While most accidents are processed easily by the person at fault’s insurance company negotiating a settlement (often without your knowledge), some are not and that is when you’ll need reliable, accurate records to go to court or to encourage a settlement.
When the cases don’t get resolved, they end up on the desks of in-house insurance company lawyers or outsourced to attorney like Mallory. While these disputes are more complicated, he says, eventually “the cases always get resolved — many through mediation. They [the plaintiffs] want insurance company money.”
“The worst thing people can do,” Mallory says, “is to lie to the police or the insurance company.” But it’s important to remember that the insurance company doesn’t work for you. Whether it is your health insurance company or the company that insured the driver who caused the accident, understand that they want to settle the claim and close the door to any future liability. Resist pressure to sign off on a claim and don’t do it without the advice of an attorney. Some injuries may take time to be discovered.
In the meantime, be diligent about collecting and reviewing all bills — they may come in waves from hospitals, providers and ambulances services. If their insurance payment is less than the total insurance payment; check your automobile policy, it often includes MedPay or medical payments.
Now, more than a year after my son was hit, I wonder what could have happened — if the driver was going a little faster, the vehicle was a slighter higher off the ground or if he just hit the pavement at a different angle. Seconds matter. It reminds me that an automobile contains awesome power and even greater responsibly — one that can unleash tremendous human damage and legal consequences. “It is a dangerous task,” Concord attorney Jason Major says of driving — nothing short “of guiding a two-ton missile down the road.”