Filing Your Personal Injury Claim
- March 13, 2021 @ 1:58 pm
- Written by admingil
- Categories: Insurance | Lawsuits | Legal Process | Personal Injury
Even though many claims are resolved before a lawsuit is formally filed, there are some insurers that simply refuse to settle a claim for a fair amount. The extent of your injuries, the type of accident you had, the amount of insurance coverage available, who was at fault and the difficulty of proving that fault are all factors that could prevent you from reaching a fair and quick settlement with the insurance company. If you are unable reach a fair settlement, your lawyer will probably recommend filing a lawsuit. However, even if a lawsuit is filed, your law firm will almost certainly continue trying to settle your case before the trial.
When Do You File Your Lawsuit?
The law of each state sets deadlines by which you must file your lawsuit. These are called statutes of limitations, and they are usually calculated either from the date of your injury or from the date you discovered an injury that was not immediately obvious. (They may also be extended for minors and people with certain disabilities.) For example, the statute of limitations for most personal injury lawsuits in Florida is three years. Statutes of limitations are different in each state and often change according to the type of case you have, but all of them are hard deadlines. That is, if you wait too long, you will not be able to pursue your case, no matter how strong it is. One of the first things your lawyer will do after learning about your case is calculate the statute of limitations that applies, and take any action necessary to preserve your right to sue.
There are also legal deadlines that apply in certain specific circumstances. For example, if you plan to sue a government agency, you are frequently required to give that agency notice within a relatively short period of time, or file an administrative complaint, before you may sue. Because these deadlines can be as short as 30 days, and because missing them can take away your right to sue, it is essential to learn about them and take action as quickly as possible. This is one reason why personal injury lawyers prefer to see you as soon as is practical after your accident.
Filing a Lawsuit
Your law firm should take care of the actual, formal filing of the lawsuit. But in general, you will file your case in the county where your accident happened, or in the county where one or both of the parties involved lives, depending on the circumstances and the laws of your state. The county where the case is filed is sometimes called the “venue.” Your lawyer can explain how these rules affect your case.
A lawsuit formally starts when you file a written complaint or petition with the court. This complaint first describes the facts of the case, your injuries and why the person you are suing is responsible for your injuries. It then separately lists each “cause of action,” which is a reason for suing, and finishes with a request for financial compensation for the injuries you have listed. This can be quite detailed, depending on your state’s requirements, but it always contains enough information to tell the plaintiffs why they are being sued.
Along with the complaint, your law firm will also file a summons or citation, a document that will be served to (that is, formally given to) the defendants. The summons explains how the defendants should respond to the complaint and gives the deadline to do so. As a courtesy, your law firm may send a copy of the complaint to the defendants’ insurance company or companies.
When this complaint is filed, your law firm will also specify whether you prefer a trial by jury or a “bench trial,” in which a judge makes most of the decisions. You and your lawyer should have agreed on this ahead of time. In a jury trial, a group of randomly selected citizens from the area decides all of the questions of fact while the judge acts as a referee and resolves legal questions. By contrast, in a bench trial, a judge decides questions of fact as well as questions about the law. Bench trials are less common than jury trials. If your lawyer recommends one, he or she should be able to explain why.
Who Answers the Complaint?
After the complaint is filed and served, the defendant’s insurance company will usually assign the matter internally to an employee called a litigation claims adjuster, who will oversee the claim. This person’s job is to try to resolve your claim before trial, or handle the claim in a way that helps the insurer at trial. Insurance companies do not like to be sued, of course; they may take extra steps to resolve your claim after the lawsuit is filed, so you may be able to settle at this stage. However, for this chapter, we will assume that you will not settle right away.
The insurance company will also assign one of its own lawyers, or hire an outside lawyer, to represent the defendant in court. The first task for this lawyer is to prepare a document called an answer to file with the court. This answer will either admit or deny the allegations of your complaint; it may even say that other parties are at fault for your injuries and should be added to the lawsuit. The answer may also set forth any defenses the defendant is planning to use in the case that explain why he or she is not responsible for your injuries.
It is only after the answer is filed that a trial in your case will be scheduled. If the defendant fails to file an answer at all or breaks a rule when filing it, you can ask the court to simply declare you the winner by asking for a “default judgment.” This is not common; it is a little like a sports team forfeiting a game because it never showed up to the playing field.