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Auto injury claims get complicated

Damaging your car in an auto accident is stressful enough, but getting hurt is worse. Not only do you suffer, but unlike vehicles, your body can't be repaired with original parts nor can you be replaced. This makes injury claims arising from an accident a different beast from damage claims.

"If an injury claim is involved, [the claims process] gets more complicated," says John Eager, senior director of claims services with the National Association of Independent Insurers (NAII), based in Des Plaines, Ill.

That's because if the other party is at fault, you will most likely have to file a claim with the other party's insurer, which is duty-bound to protect the interests of its insured -- not you. This is a truly adversarial relationship, and in most cases you may best be served by hiring legal counsel.

However, if you have a no-fault policy or personal injury protection, you will file your initial claim with your own insurer.

"In a no-fault situation, you will file with your carrier, who will make you whole (pay your expenses) and the other person will go back to their carrier," says Daniel Kummer, director of auto insurance for the NAII. "In a lot of states, there's still room for tort remedies."

For instance, even in a no-fault state, you may be able to sue the other carrier to compensate for certain permanent injuries, pain and suffering or other issues if the other party is at fault. You will also file with your own insurance carrier if the other party is uninsured and you carry coverage against uninsured drivers.

"It's like your insurance carrier stands in place of the carrier that does not exist or the person that has no insurance," says John Eager of NAII.

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You will be covered up to the limits in your policy, and you may have the right to seek compensation directly from the person who hit you.

You may also file an uninsured motorist claim with your carrier in the case of a "phantom vehicle," where you might be hit or run off the road by a vehicle that speeds away and is never identified, Eager adds.

In all other cases when the other driver is at fault, you will file with the other party's carrier. Obligated to represent the other party's interests, the other carrier will do everything it can to keep the settlement as low as possible, says J.D. Howard, co-founder of the Insurance Consumer Advocate Network, based in Branson West, Mo.

You have the obligation to prove your damages and mitigate them. This means you must not exaggerate your claim and keep the expenses as low as possible without compromising your recovery.

For example, Howard says, "If you have an injury that would normally take you two to three days off work to heal, you can't retire or go on disability for six months."

If you live in a "comparative negligence" state, you also have to prove that you were not guilty of any negligence that may have contributed to the injury.

"To begin with, you have the obligation to prove who is responsible for your personal injury," says Howard.

In addition to the five elements of proof that stem directly from an accident -- your statements, the other party's statements, the police report, witnesses and physical evidence -- medical treatment received and doctors' diagnoses are added to the mix of proof that you've suffered an injury from the accident. Proof of who is at fault will likely be based solely on the initial five elements.

Howard counsels consumers to get a personal-injury attorney in all but the simplest injury claims if the other party is found to be negligent. He says simple claims would be cases when it's clear the other party was 100 percent at fault, the police report notes that you were injured and the other party's insurer makes quick commitments to put you in a rental car and pay your vehicle damage, and the other party's coverage limits are sufficient to cover your expected damages.

-- Posted: Sept. 23, 2003

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