Many people who are injured in an accident through the fault of another person wonder if they should handle their claim on their own, or get an attorney. There certainly are some situations, such as very small cases, where an attorney is not necessary. In larger cases, things can get complicated, and an attorney should be considered. Some people are quite good at self help, such as remodeling their own basement, rebuilding their own engine, or starting their own business. For those who have neither the time nor the inclination to research the intricacies of the legal system, nor the willpower to risk making a major mistake, however, the hiring of an attorney is usually a sound investment.
The responsible parties who must pay a claim are not always easily identified. For example, in a recent case we handled involving a fall down on a wet floor at the State Fair, which resulted in a fractured leg requiring surgery, we had to subpoena records first from the State Fair Park Board, then a national beer vendor which ran the pavilion where the accident occurred, and finally from a lessee of the pavilion before ascertaining that the lessee was responsible for the negligent maintenance. The lessee’s insurer eventually paid the claim.
Liability for damages arising out of most personal injury accidents depends on fault. Proof of fault is often hotly contested, and requires thorough investigation. Private detectives, paralegals and subpoenas are weapons routinely used by attorneys. These often prove invaluable in uncovering what would otherwise be unavailable information.
Insurance companies and tortfeasors don’t always admit fault even when it appears obvious. A rear end collision might be blamed on unforeseen weather conditions, unexpected brake failure, or a surprise medical emergency. Liability may be denied. In intersection accident cases, insurance companies often assess 20% or more of the comparative fault to the injured person “just for being there.” Damages may be reduced proportionately. In trip and fall cases, the injured person can’t recover simply by proving that the accident occurred on someone else’s property. Instead, he or she must show that the person responsible for the premises was negligent in the design, construction or maintenance of the place. Proof that the place was unsafe and that the person responsible had actual or constructive notice is required. Many times such proof either is unobtainable, or must be encountered through painstaking investigation or litigation.
Finally, the sources and amounts of insurance proceeds available to pay a claim are often a key focus of litigation. If the auto tortfeasor is uninsured, an attorney is often necessary to track down all sources of uninsured motorist benefits covering the victim, the owner of the car in which the victim was riding, and the resident relatives of the same household. Sometimes such uninsured motorist policies can be stacked, but such coverage layering is seldom voluntarily revealed or offered by the insurer.
Injured persons’ medical expenses are sometimes covered by a group health insurance policy or by automobile medical payments coverage. The insurer which pays the bills often holds its hands out seeking reimbursement when the injured person makes a liability settlement with the tortfeasor. Whether and to what extent the payor may subrogate against the settlement proceeds depends not only on the wording of the contract under which the payments were made, but also on the ever changing Wisconsin appellate court interpretations of the “made whole” doctrine and the Federal Employee Retirement Income and Security Act.
If the auto tortfeasor is underinsured, an attorney should inquire about excess and umbrella liability coverage on the tortfeasor, as well as all sources of underinsured motorist benefits available to the victim above and beyond the tortfeasor’s limits. The timing of settlements and notice provisions of insurance policies can be traps for the unwary who handle their own case.
In short, there is nothing to lose and everything to gain by seeking a free legal consultation concerning an injury claim. If the injury is serious enough so that more than a couple of doctor visits are required, a visit with an attorney is essential.