Your personal injury claim is a lot like a three-legged bar stool. A bar stool that is missing one of its legs is useless. It will not stand on its own. A personal injury claim is similar in that it has three essential elements that must be present to be a winnable case. Each of the three legs of a personal injury case stand for one of the required elements.
LIABILITY – WHO’S AT FAULT?
LIABILITY Ask yourself, “Was my wreck or accident caused by someone or something else?”
First, we look at the strength of liability. For this leg, we are assessing whether the facts of the case indicate a likelihood that we will be able to hold the defendant liability under applicable laws.
It typically needs to be clear that the other party was at fault in the accident because you cannot recover damages if you caused the accident.
This means whether under the law, there is admissible evidence that can prove that the defendant is legally responsible to the plaintiff for damages. This will depend upon the legal theory. For example, in a car crash case, the plaintiff must prove that as a result of the defendant’s negligence, the defendant crashed his car into the plaintiff’s car.
Example: You are sitting at a stop sign in traffic and another driver rear-ends you. Given those facts, liability is clear because (1) the person at the stop sign was complying with traffic laws, and (2) the person behind them violated those laws.
Liability is not always clear in a personal injury case and it may take the expertise of an Attorney at McKay Law to help prove that someone else is at fault for your injuries.
Accidents can be caused by another person, company, defective product, roadway, slippery floor, toxic chemical, etc. There are a personal injury claims that can fit any particular story. Car wrecks, truck wrecks, 18-Wheelers, products liability, slip and fall, dog bite, toxic or bad pill, and wrongful death are just a few.
DAMAGE – WHO’S HURT?
Next, ask “Did I suffer any injuries in the wreck or accident?”
It goes without saying that a person must have an injury to pursue a personal injury claim. Even if someone else is at fault for causing an personal injury accident, if you have no damages, there is a crucial leg to your stool missing and your case will not stand.
Damage means there is admissible evidence to prove that you suffered actual damages for which the court can award monetary compensation.
Injuries come in many forms which include but are not limited to physical injuries, emotional injuries, and monetary injuries.
For example, if you were rear-ended by another driver, damages you incur may include repairs to your vehicle as a result of the accident, medical care, lost wages from not being able to work, added expenses of homecare and/or pain and fear as a result of the accident. Family members may even have damages they have suffered from the injury of a loved one.
The more SEVERE the injuries, the more likely you have a case. Damages are key because they bear directly on whether pursing a case will make sense financially.
COLLECTIBILTY –WHO’S PAYING?
Finally, ask the question that ties it all together. Does the at-fault party have a viable source to pay me?
Even if the accident was not your fault and you are badly injured, there must be money or insurance to pay you for your injuries. The amount of money defendant may have to pay to restore you to the condition you were in before being wronged is a key factor in evaluating whether your case can stand.
For example, is the defendant insured? If so, the recovery source will usually be an insurance policy. The amount of insurance the defendant has in another key element to consider. If you are rear-ended by a defendant at a stop sign who carries a minimum insurance p0licy of $30,000 and the resultant injuries are relatively minor, those minimums might be sufficient to compensate you. On the other hand, if the impact was at 60 mph and you had major injuries incurred, with expensive surgeries and months off of work, the minimum insurance policy would not be able to compensate you for your injury.
You may have purchased Underinsured or uninsured motorist coverage in your insurance policy which provides compensation for your damages in the case the defendant did not carry any or enough insurance.
On the other hand, if the same crash was caused by a person driving a commercial vehicle, there would likely be a minimum of $750,000 and upwards of $100,000,000 as the source of insurance available to compensate you, making the case much more viable.
McKay Law lawyers will find out if there is any insurance you and the other party have available to compensate you for your injuries:
- “PIP” insurance: This policy covers you regardless of who is at fault.
- Bodily injury insurance: This is the type of insurance coverage that we pursue a settlement out of.
- Uninsured motorist insurance: is coverage you purchase. It works similarly to Bodily Injury coverage and provides funds to pursue if the other person did not carry any or enough Bodily Injury coverage.
Was your answer to all three questions “Yes”? If so, your personal injury claim can likely stand. If you have questions about any of your answers to any of these questions, you should contact a lawyer at McKay Law at (903) 999-2653.
