Claims - in General
Facts and Procedures You Need to Know
By J. D. Howard
Rights and Obligations - Yours and Theirs Understanding Adjusting Techniques Resolving Your Auto Damage Claim Resolving Your Rental Car Claim Resolving Your Lost Income Claim Selecting Your Health Care Provider Resolving Your Medical Expense Claim Resolving Your "Pain and Suffering" Claim How and When to Select an Attorney Conclusion
After 35 Years settling Personal Injury Claims, this retired adjuster is sharing some secrets.
Logic would seem to dictate that the less severe the injury, the simpler it should be to resolve your Personal Injury Claim. However, that is not always the case. There seems to be a perverted sense of "logic" that is running ramped among insurance companies. All too many insurance companies are refusing to be fair in settling Personal Injury Claims, knowing full well that consumers will have to seek a qualified attorney to collect what is rightfully due. The operative word there is "qualified" attorney. Believe it or not, this approach actually works out to the best advantage of the insurance companies on either the short term or the long term basis (or both). The reasoning behind this aggravating approach to adjusting will be discussed in greater detail in the Techniques section of this page. For now, suffice it to say, the insurance company is probably not going to bend over backwards trying to be fair with you. Therefore, what you are about to learn here should be invaluable in your efforts to understand and deal with insurance companies when you have a Personal Injury Claim. With this in mind, let us proceed with the first topic.
Rights and Obligations - Yours and Theirs
If we were to go into details and subtleties here you would probably lose all interest in proceeding further, so let's try to keep this simple. To begin with, you have the obligation to prove who is responsible for your personal injury. Because this is a "comparative negligence" state, YOU also have to prove that YOU were NOT guilty of any negligence that may have contributed to you having sustained a personal injury. Then YOU have the obligation to "mitigate" (minimize) your damages and YOU have to prove your damages. Are you beginning to see a pattern here?
Just within the scope of what is discussed here, there are a few questions that could arise:
- What constitutes "comparative negligence"?
- How is negligence apportioned?
- What is "reasonable mitigation"?
- What constitutes proof of my damages?
These details and subtleties will not be discussed here. Remember . . . we're trying to keep this simple. Suffice it to say, if any of these questions become a part of your claim, GET PROFESSIONAL HELP!
If liability is clear (other party struck you from the rear while you were legally stopped in traffic AND there is a police report to verify these circumstances AND the other driver was cited AND you received no citation AND you were wearing your seat belt at the time of the accident) . . . if your injuries were obvious at the accident scene AND the police accident report notes that you were injured . . . if the insurance company for the other party quickly commits to paying for your damaged vehicle AND puts you into a rental vehicle at no cost to you AND acknowledges they may have to pay you for any reduction in resale value of your vehicle after it has been repaired . . . if the adjuster advises you of the insurance policy coverage limits up-front . . . if those limits are sufficient to cover your expected damages (vehicle damage + diminished resale + rental car costs + medical expenses + lost wages + projected future medical expenses + "pain & sufferance" compensation with NO expected residual disability) . . . AND you are comfortable dealing with the insurance adjuster yourself, then you will PROBABLY not need professional help. After all, some Personal Injury Claims actually are simple and some insurance companies will actually step-up, treat you with respect and pay what they owe. However, if your situation does not meet ALL of the criteria specified above, we suggest you consider talking with an Attorney.
Now that we have discussed your obligations, let us review the obligations of the insurance company. This part is simple. Once you have proven their insured is 100% liable for you damages and you have proven your damages, then the other party's insurance company has an obligation to protect the interests of THEIR INSURED by paying for your damages. Did you notice that? THE OTHER PARTY'S INSURANCE COMPANY HAS NO OBLIGATION TO YOU! Their obligation is to their own insured.
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Understanding Adjusting Techniques
In the opening text we touched on a form of "perverted logic" that occasionally seems to be an underlying factor when consumers are involved in dealings with the other party's insurance company. That perverted logic manifests itself when the other party's insurance company is rude and indifferent to you . . . almost as though they are trying to drive you to an attorney. Well guess what . . . THEY ARE! Let me take a stab at trying to explain why. First of all, if you take this abuse you will wind up settling cheap and the insurance company saves money. If you go to an unqualified attorney, there is a better than average chance they will be able to force a cheap settlement on you through that attorney. Again, the insurance company saves money. If you get a qualified attorney they will have to pay full value to settle your claim. Even then, there is benefit for the insurance company AND the insurance industry in general. Every couple of years the insurance industry tries to push some type of Insurance Reform Bill through the Legislature. When they do, they point out how many consumers hire attorneys to help them resolve their claims and it is these "greedy" attorneys that are driving up the cost of auto insurance. The insurance industry points their collective finger at personal injury attorneys as being the reason why insurance companies keep raising their auto insurance premium rates. Have you ever noticed that when you are pointing your finger (your index finger) at somebody else . . . you have at least three (3) more fingers pointing right back at YOU! Well, the same rule holds true when insurance companies try to blame rising auto insurance premiums on personal injury attorneys.
When insurance industry lobbyists fund campaigns, vacations and employment opportunities, they can usually find legislators with attentive EARS! Then, when the insurance industry tells their story, Bills start getting submitted to the Legislature. That's when consumers, YOU and I, have a problem! When the insurance industry is pushing for Insurance Reform Legislation, you can bet they're not doing it to benefit consumers.
Now, do you see the logic in having insurance companies "drive" consumers to seek the help of an attorney? We could go on and on discussing the uncontrolled and unwarranted increases in auto insurance premiums and the ways in which the auto insurance industry manipulates the truth in an effort to deprive consumers of their rights, but then, that is a separate matter that we will be addressing later on as this web site grows and expands.
The recorded statement: Most insurance companies have now gone to the practice of having their adjusters tape record their phone conversations with you. By rights, the adjuster should let you know when your conversation is being recorded. There are multiple reasons for recording these conversations:
- The Adjuster needs to make a record of the facts related to how the loss occurred. This will become a permanent part of their claim file. You will be asked to provide self-identifying information, such as your full name, date-of-birth, place of birth, Driver's License # and Social Security #. With this information, the insurance company will probably order a C.L.U.E. (Claims Loss Underwriting Experience) Report and/or an Index Report. The C.L.U.E. Report will tell the insurance company of any claims you may have submitted to your own insurance company(s) in the past. The Index Report will reveal any prior claims you may have submitted for a Personal Injury Claim. The insurance company wants to know about your prior insurance claims experiences which could impugn your honesty.
- By asking key questions about the circumstances of the loss, you may admit to something that would allow the insurance company to either deny your claim or substantially reduce the benefits you receive.
- The insurance company will want you to be as detailed as possible in the recorded statement. Months later, when your memory may have faded, you may be called upon to once again answer the same set of questions. If you do not answer these questions exactly as you did in the recorded statement, the insurance company may try to make you look dishonest.
It is simply not practical to assume you will be able to avoid providing a statement to the insurance company. If you are dealing with your own insurance company, your cooperation is required by the policy. If you are dealing with the other party's insurance company, the Rules of Civil Procedure give them the right to interview and Examine you.
Since you are probably not going to be able to avoid giving a statement, the next best thing is to be prepared for the statement. If you are dealing with the other party's insurance company, as with a Personal Injury Claim, we strongly suggest to provide your statement in the company of (and with the guidance of) your own attorney. If you are providing your statement without counsel, we suggest you review the following guidelines:
- Answer the questions asked as briefly as possible without going into extemporaneous detail.
- Unless you are 100% sure of the exactness of your answer, qualify you answer(s) with terms like "about", "approximately", or "as best as I can recall", etc. Or, if you do not know the answer to a questions . . . simply say so!
- Avoid being specific as it relates to speed, time and distance. It is a simple matter of mathematics to take two of these factors and calculate the third. If you are specific in any of these two factors and you are wrong, then a wrong conclusion could be reached which could work against you. Believe me, insurance companies have "helped" other people shoot themselves in their own foot before. You would not be the first. Even honest people can become entrapped into a compromising position. If your insurance claim involves a "significant loss" - SEEK PROFESSIONAL COUNSEL BEFORE GIVING A STATEMENT !
The Wage and Medical Authorization: If you have a Personal Injury Claim pending with either the other party's insurance company or your own insurance company (Uninsured Motorist, Underinsured Motorist or Med-Pay Coverage), you will probably be asked to sign a "Wage and Medical Authorization" form. As nobody is supposed to be able to access your medical and/or employment records without your permission, it seems reasonable to sign this form. WARNING: By signing this form, you are usually allowing the insurance company to go on a "fishing expedition" in search of any reason to not pay all or any part of your claim. If your claim is with your own insurance company you have an "obligation to cooperate", as specified in your Insurance Policy Contract. However, cooperation can be achieved without giving carte blanche to your insurance company. It is usually better to provide an authorization with limitations as to scope of access. A good Personal Injury Attorney will know how to limit this authorization, so as to protect your rights and limit what records your insurance company can access. If your claim is against the other party's insurance company, you have no obligation to provide a wage and medical authorization to them. You will have to provide them with legitimate information upon which they can base their evaluation of your Personal Injury Claim. However, by having that information come through you or your Personal Injury Attorney, you are able to address any potential problems before they can be distorted and used against you. It is always best to be able to work with the insurance company. It is never prudent to surrender control of your claim to the insurance company. As is often the case, we recommend that you SEEK PROFESSIONAL COUNSEL BEFORE GIVING AN AUTHORIZATION!
This portion of "Understanding Adjusting Techniques" primarily addresses Personal Injury Claims. After all, that is the topic of this page. Other adjusting techniques involving Auto Damage, Rental Reimbursement and Medical Claims are also discussed within this page and within other pages of this Web site. We suggest you take the time to read ALL of the text in ALL the Consumer Tips / FAQs pages. Only good things can come from being an informed consumer!
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Resolving Your Auto Damage Claim
Most of what you need to know about this subject has already been posted in the Auto Insurance Claims page. We suggest you review that text. Information that we feel is important enough to be repeated here has to do with the Post-Repair Reduction in Resale Value of your damaged vehicle (Diminished Resale). It is usually in your best interests if you have your own Auto Insurance Collision Coverage cover the repairs and/or total loss settlement of your damaged vehicle. We say this for two (2) primary reasons:
- In the event your vehicle is a Total Loss, your own policy provides you the right to challenge the settlement proposed by your insurance company in a timely and cost effective manner. This procedure is outlined in the Appraisal Clause of your own policy and discussed in further detail in the Auto Insurance Claims page in paragraphs #10 & #11. In most states, your auto insurance premiums can not be increased for claims which do not involve your own negligence, so you don't have to worry about preserving your future auto insurance premium rates.
- If your vehicle damage is economically reparable, the other insurance company may well pay you for that expense with a draft (or check) which includes "release" verbiage which could compromise your right to pursue a Post-Repair Diminished Resale Claim. Also, if the other insurance company has low limits of coverage available for your Auto Damage Claim, payment for the repair of your damaged vehicle may exhaust those coverage limits leaving nothing left to cover your Post-Repair Diminished Resale Claim.
Regardless of your will be paying to repair your auto damage, you may have to deal with some adjusting techniques that we will Link you to here. Insurance companies in general seem to like saving money by requiring the repair shop to use either used parts or after-market parts (non-factory imitation [non-OEM] parts). While the insurance company does have the right to use LKQ Parts (Like Kind & Quality), there are reasonable limitations to that right. Those limitations are discussed in paragraph #4 of the Auto Insurance Claims page. We suggest you review that text. While you are there, we suggest you take a few minutes to review the entire text of that page.
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Resolving Your Rental Car Claim
If your vehicle is rendered inoperable because of the accident, your first concern (after the health and well- being of you and your passengers) will probably be finding substitute transportation. Unfortunately, most insurance companies are not going to step up immediately and put you into a rental vehicle. You will probably have to use your own credit card to secure a rental vehicle until such time as the other party's insurance company decides to accept responsibility for this expense.
Hopefully you will have Rental Reimbursement Coverage on your own auto insurance policy which will be available to you as a backup to what the other party's insurance company is going to try to pay you. The adjusting technique we will be discussing here is probably about the most often employed by most insurance companies. The other party's insurance company is going to try to limit what they reimburse you in daily rental charges and will refuse to reimburse you any CDW (Collision Damage Waiver) expense you may have incurred. It would not be unusual for the other party's insurance adjuster to tell you "We only pay $15.00 per day (or some other arbitrary amount) for daily rental charges and we do not pay CDW at all". That is so wrong and yet is so common. The insurance industry as a whole probably saves billions of dollars annually with this one abusive adjusting technique. By case law precedence, you are entitled to be reimbursed for reasonable costs incurred in renting a temporary substitute vehicle that is comparable to your damaged vehicle. If your damaged vehicle is a Buick Park Avenue, you should not be reimbursed based upon the cost to rent a Geo Metro. Yet, there will be insurance companies that will attempt to resolve your rental reimbursement claim based upon their own ridiculous standards. The other party's insurance company will also attempt to deny reimbursement for CDW charges, saying that your own Collision Coverage should transfer to the rental vehicle. Often times this is true, which makes denial of coverage a non-issue. However, when your Collision Coverage does not transfer, or when you do not have Collision Coverage on your own vehicle, this denial of coverage needs to be challenged. You should not have to assume a financial risk greater than that of driving your own vehicle. If you accept less than full reimbursement for all costs incurred in renting a temporary substitute vehicle, you can submit your un-reimbursed expenses to your own insurance company for add'l reimbursement under your own Rental Reimbursement coverage. However, if the other party's insurance company is not going to reimburse you fully for your rental expenses, you should consider this as a sample of how you are going to be treated on the rest of your claim and SEEK PROFESSIONAL HELP from a good attorney. You should consider your treatment on your Rental Vehicle Claim as an early warning of how you are going to be treated later on.
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Resolving Your Lost Income Claim
Once you have cleared the hurdles of proving liability and proving your injuries, you must then prove those injuries kept you from earning your living and for how long. A statement from a knowledgeable attending physician is usually sufficient to document your inability to work and for what period of time. If you can provide such documentation to the other party's insurance adjuster, you would then be entitled to reimbursement of your lost wages. You would then have to prove how much income you have lost. A statement from your employer should do the job. However, if you are self-employed, you may be required to submit documentation much the same as you would if you were applying for a loan. You are owed reimbursement of your net income (after taxes). Under IRS code, the monies you receive from the insurance company are classified as an indemnification and are not subject to income tax.
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Selecting Your Health Care Provider
The selection of a health care provider may well be even more important than your selection of an attorney. A personal injury attorney will be critical to your financial well being. But then, that's only money. Your health care provider will impact your physical well being. We happen to subscribe to the old adage that good health is worth more than money!
If you have confidence in your primary care physician, they would probably be a good place to start for a referral to a specialist to address your specific injury for your post-emergency room care. If you are in an HMO, you may wish to consider going outside their contracted doctors for your specialized treatment, as your HMO will probably complicate the handling of (and compromise the settlement you receive for) your Personal Injury Claim.
If your injuries include internal injuries, broken bones, head injuries and/or cosmetic reconstruction, you will need to be treated by mainstream physicians such as MD's or osteopaths that are specialists in their respective disciplines. However, once your injuries have been isolated to soft tissue strain, we suggest you consider chiropractic or physical therapy by a registered physical therapist under the supervision of your attending M.D. or D.O. We have seen wonders achieved by chiropractic and/or physical therapy in relieving pain, rebuilding strength and restoring range of motion. The unfortunate part about receiving chiropractic treatment without mainstream supervision is that most insurance companies will not give full weight to the treatment charges when they attempt to calculate your pain & suffering settlement. We are not saying that is right. In fact, we are saying that is wrong. However, that is the way it is.
In the selection of a health care provider, expertise and results should always be your primary consideration. However, there is also a secondary consideration. When it comes time to resolve your claim for personal injury, you will want your health care provider to be able to compose a narrative (a "medical legal") about your injury and treatment that will leave no room for challenge by the insurance company. Just as your treatment is critical to your physical well being, a good medical legal is critical to your post-treatment financial well being.
Another important aspect of selecting a health care provider is that provider's willingness to await payment until your claim is settled. Health care providers who regularly work with accident victims are used to awaiting payment. One thing you do not want to happen is to receive relief in the back office, only to be aggravated by the front office. A good, experienced health care provider will never allow this to become a problem. Like most of us, your health care provider will want some assurance that they will be paid for their services. This assurance usually comes in the form of a settlement lien. This means that either your attorney (if you have one) or the other party's insurance adjuster will promise to pay the health care provider. Personally, I would rather have my attorney dealing with my financial consequences than the insurance adjuster for the other party's insurance company.
If you have a good attorney, follow their advice as to selection of a health care provider. Even if you do not have an attorney, it would be a good idea to contact one to get a referral to a good health care provider. A good personal injury attorney will be happy to provide a free consultation and point you in the right direction even if you prefer to handle the claim yourself.
A final consideration (as discussed here) has to do with the scope of treatment and the fees charged by your health care provider. More and more insurance companies are implementing a procedure known as "peer review". This is where a health care provider, employed by the insurance company, reviews your treatment and charges. It is not unusual for the in-house doctor at the insurance company to take exception to the scope of your treatment and the charges there for. In fact, that is the whole point of the Peer Review program. If the in-house doctor did not find fault with your treatment or charges, there would soon be a new in-house doctor. The whole Peer Review program is designed to imply you have failed to meet your obligation to mitigate (minimize) your damages. FOR EXAMPLE: You actually incurred $5,000.00 in treatment expenses, but the Peer Review says you should only have had $3,500.00 in treatment. The insurance company will attempt to reduce your medical expense reimbursement by $1,500.00 AND reduce your pain & suffering settlement proportionately. It is important that your health care provider be able to justify both the scope of your treatment AND the charges incidental thereto. A good medical legal (as discussed above) will help minimize the effects of a Peer Review evaluation. If you are going to handle the Personal Injury Claim yourself, be prepared to deal with the Peer Review obstacle that will be placed in front of you! Remember, if you do not have an attorney representing you, the health care provider will probably have a lien on your settlement for the full amount of their bill. If you are unable to overcome the Peer Review obstacle, your health care provider will be paid the full amount of their bill, but the amount you collect will be substantially reduced. You will better understand the true meaning of "substantially reduced" when you read the Resolving your "pain & suffering" claim section coming up.
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Resolving Your Medical Expense Claim
As a consumer, this is where you may find some good news for a change. In many states, you are allowed to submit your claim for medical expenses to BOTH the other party's insurance company AND your own auto insurance company (if you have "Auto Med-Pay" coverage on your policy). This is euphemistically referred to as "double dipping". This means that if you incurred $5,000.00 in treatment expense (for your auto accident related injuries) and you have at least $5,000.00 of Med-Pay coverage on your own auto policy, you can potentially collect that $5,000.00 from your own insurance company AND the other party's insurance company. The days of double dipping are numbered. Gradually, the auto insurance companies are rewriting their policy verbiage to make their own Med-Pay coverage subordinate (secondary) to ANY OTHER valid and collectible insurance and/or are incorporating subrogation rights into the Med-Pay coverage. This will effectively eliminate your right to collect twice for the treatment expenses incurred. You need to review your auto insurance policy (or have it reviewed by an expert) to determine whether you have the right to double dip. Remember, your auto insurance company cannot increase your premium rates for claims submitted which do not involve negligence on your part. So, if you can collect twice, we encourage you to do so.
Your own auto Med-Pay coverage notwithstanding, you are entitled to recover from the other party's insurance company for all "reasonable" expenses incurred for "reasonable" treatment of the injuries you sustained in the auto accident. Again, this is assuming you have already proven liability, proven injuries, proven expenses, and overcome the Peer Review challenge. The amount you can recover is limited only by the extent of coverage afforded by the other party's insurance policy.
If the insurance for the other party is not sufficient to cover your medical expense AND an appropriate amount to cover your Pain & Suffering settlement, you may have to turn to the Underinsured Motorist Coverage of your own auto insurance policy and/or your own health insurance coverage. If the other party were at fault in your accident, but had no insurance, you would have to turn to the Uninsured Motorist Coverage of your own auto insurance policy and/or your own health insurance coverage. The difficulties of coordinating benefits from multiple policies, ESPECIALLY HEALTH INSURANCE COVERAGE, can drive you nuts. If your claim involves coordinating benefits from multiple policies, we strongly encourage you to talk with a Personal Injury Attorney !
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Resolving Your "Pain and Suffering" Claim
Of all the subjects discussed in this page, this will probably be the most popular. Of all the E-mail we receive from consumers around the country, the overwhelming majority are asking "What is my claim worth?". As you can see by what you have read above, there is no easy or standard answer, only generalities. The major portion of most Personal Injury Claims has to do with the Pain and Suffering Settlement, which is directly related to the type of injury, the medical expenses incurred, the add'l medical expenses projected, the extent of your recovery, and the physical pain and suffering that is directly related thereto. There is also the credibility of your injury and the expenses incurred to address those injuries. To be perfectly blunt, there is no way we can be specific in answering these questions over the Internet. In addition to us knowing the actual expenses and/or financial damages you may have incurred, we would also have to be familiar with the credibility of those who have charged you for their services, as well as your own credibility. This does not usually happen unless we can speak directly with you . . . face-to-face is always best. However, you did not come to this portion of this page to be told only the reasons why we could not help you. You came here in search of some guidance.
Following is a general formula that could be used and could, just as easily, be departed from based upon individual circumstances.
Auto Damage Claim (100%) Auto Diminished Resale Claim (repaired vehicles only) Misc. property damage (personal property other than vehicle) Rental vehicle expenses (reasonable) Medical expenses (reasonable) Lost wages (reasonable) + Pain & suffering allowance (1-3 times the medical expense if fully recovered) ----------------------------------------------------------------------------- Full value of claim
REMEMBER: The above formula is simply a general rule of thumb for most typical circumstances. The value of having a good personal injury attorney is realized in defining what is "reasonable", as referenced above and in the negotiation of your pain & suffering allowance. By retaining a good Personal Injury Attorney, you can also avoid the mistakes, pitfalls and stress of having to deal with the insurance company yourself. How's that for a segway into the next section of this page?
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How and When to Select an Attorney
If you believe the advertising attorneys you see on TV and/or in the TV Guide, you'll want to call them on your cell phone from the accident scene. However, as a general rule, I avoid dealing with any individual that spends $1,000,000.00 a year to advertise on television (that is NOT an exaggeration). We personally know of law firms that spend 2-3 times that annually just to advertise on television.
I'm inclined to believe that anybody good does not have to spend a lot of money to advertise. Their reputation brings in enough referrals to keep them busy. However, there is an unfortunate side-effect of having some law firms with massive advertising budgets. Some really good personal injury attorneys are losing potential referrals to these large advertising law firms. Consumers are going to advertising law firms where their claim is actually handled by some clerk instead of an attorney. If I'm going to pay to have an Attorney represent me . . . I want an attorney to represent me!
If you believe the insurance adjuster, you don't need an attorney. They will probably ask you something to the affect of "Why give away part of your settlement if an attorney is not going to collect any more than we are already willing to pay?". The unfortunate part of that statement is that it is sometimes true. If you have your claim handled by a clerk, the adjuster is probably right. Later on, when the claim becomes difficult (after they have already gotten what they want out of you), they will probably expect you to go to an advertising attorney and the insurance company will expect to settle your claim for what they were willing to pay all along. Remember when we discussed why an insurance company may DRIVE you to an attorney in the understanding adjusting techniques portion of this page?
As for the "how" and "when" to select an attorney, let us address these in reverse order. When? The sooner the better. If you have read all the above text you'll understand why we make this recommendation. IF you are going to get an attorney at all . . . THE SOONER THE BETTER! As for the "how" . . . GET REFERRALS FROM SOURCES YOU CAN TRUST. You can contact your State Bar Association for referrals. You can contact your State Trial Lawyers Association for referrals. You can check with the Better Business Bureau and the Bar Association for any records of complaints on an attorney you may be considering. You can ask for references from an attorney you may be considering have represent you. Ask your potential attorney who will actually be handling your file, the attorney or a clerk. Finally, you can visit our Local Attorneys page to see what good personal injury attorneys have joined the Insurance Consumer Advocate Network. ALL the personal injury attorneys listed in our Local Attorneys page will be happy to provide a free consultation to address your concerns. If you are involved in a Personal Injury Claim, you are probably entering an arena in which you have little or no experience. The primary concern of our member attorneys is seeing to it that you receive proper treatment and are not taken advantage of in the claim settlement process.
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In this page we have attempted to make you more aware of what you may be facing if you are involved in a Personal Injury Claim. If you choose to represent yourself in the handling of your claim, we suggest you print this text and keep a permanent record of what was discussed herein. This could help in your dealings with the insurance company(s). Even if you choose to have an attorney represent you, keep a copy of this text to refer to when you are asking questions. After all, the more intelligent questions you ask, the more you are going to understand about the process in which you are involved. We hope the information on this page helps you understand the process and avoid the problems!