June 19, 2011
If you are involved in an automobile accident, Massachusetts law provides a number of rights, benefits and procedures that affect how you recover for any losses or injuries you sustain. Your rights are governed by both statute and your insurance policy, the terms of which are often difficult to interpret. Your rights involve possible claims against the person who caused the accident and his insurance company, as well as for no-fault benefits to cover your medical care and lost wages from your own policy. In short, automobile law in Massachusetts involves a combination of claims processing, information gathering, advocacy in settlement negotiations, and perhaps court. If you are injured in a motor vehicle accident, your primary concern should be your health. On the other hand, the processing of your claim and preservation of your rights ought to be done by experienced professionals who can help you navigate this complex and highly regulated system. Massachusetts automobile accident law dramatically affects the extent to which you obtain remedies and relief if injured in a motor vehicle accident.
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Your first concern should be your health and safety. You should always wear a safety belt. If you have the misfortune of being injured in a motor vehicle accident, you should seek medical attention immediately. Indeed, if you or anyone is injured in an accident, steps should be taken to summon the police to the accident scene so that first aid or emergency treatment can be rendered. It is also important to obtain information concerning the other parties involved in the motor vehicle accident as well as obtain the facts concerning how the incident occurred. You should keep a pencil and note pad in your glove compartment for this purpose. At a minimum, the information you should obtain includes:
You must report the accident to your automobile insurance carrier and agent as soon as possible. This should certainly be done within one (1) business day of the incident. In most cases it is sensible to file a report of the accident with the police department of the town in which the incident occurred.
To begin with, as will be described below, every motor vehicle registered in the Commonwealth of Massachusetts is required to carry so-called "no fault" insurance. This means that any person injured as a result of a motor vehicle accident has available a form of health insurance to cover the cost of the treatment of injuries suffered in a motor vehicle accident. (However, "no fault" coverage is not available in motorcycle insurance.) Therefore, if you or a family member is injured in a motor vehicle accident, you should seek appropriate medical care from your local hospital emergency department, your general or primary care physician, or some other provider who can render medical assistance appropriate for your injuries as soon as possible. Sometimes, the onset of pain or other symptoms may not occur immediately after an auto accident. If symptoms develop or an injury intensifies, it is advisable to be "checked out." It is certainly sensible to arrange for care if medical problems develop even several days following an accident.
It is essential that you provide the doctor with a complete history concerning the accident and the onset of your medical problems. In other words, you should explain what happened, how you were injured, your complaints or symptoms and any other relevant information. The data you provide to a doctor or emergency room attendant not only assists with the diagnosis and treatment of your injuries but establishes a record to document your injuries, the need for treatment, and the appropriateness of care for insurance claim purposes. In some cases, medical records ultimately become evidence which can be offered to prove damages you suffered as a result of a motor vehicle accident.
Generally speaking, the motor vehicle insurance policy personal injury protection (PIP) provisions will cover the cost of any medical care which is reasonable, necessary and related to injuries arising out of your motor vehicle accident. Certainly, emergency room care, chiropractic treatment, physical therapy, orthopedic, neurologic or neurosurgical consultation and other specialist care is generally covered. Even the costs of prescription medication, crutches, neck collars, etc., are reimbursable under the insurance policy.
The auto insurance carrier for the motor vehicle in which an injured person was either an operator or passenger is responsible for the initial payment of bills for medical care. In other words, if you are injured while a passenger, the insurance company for the car in which you were riding while injured would be responsible for the payment of your bills (up to the limits of the PIP coverage as outlined below), even though you might have an auto insurance policy covering your own motor vehicle. Likewise, the operator of the vehicle is covered by the policy on the vehicle he is operating, even though the accident may have been his or her fault. That is why PIP is also called "no fault" insurance. (Please do not confuse PIP or no-fault payments with the liability coverage of a negligent driver which will be explained further below.) The process for obtaining the payment of medical bills for motor vehicle accident injuries is fairly simple. However, coordination of benefits can be complicated. To open a personal injury protection benefits claim, you must file an application for benefits. The application requests information concerning how the accident happened, the involved parties, your employment status and a description of your injuries. Once the claim is opened, your medical providers or your attorney can submit bills with supporting medical documentation directly to the insurance carrier for payment or reimbursement. There is a limit, however, to how much the motor vehicle insurance policy will pay for medical care.
One of the ways in which you must cooperate with your own insurance company is to provide prompt notice of accidents or injuries. (In a hit and run situation, you must give notice within 24 hours; in all cases notice should be given within one (1) business day.) Also, you must submit to the insurance company's request to provide a written or recorded statement concerning the happening of an accident or your receipt of injuries. In addition, you must make yourself available for an independent medical examination if the insurance company desires to evaluate the nature and extent of your injuries. Finally, if someone alleges you caused an accident by sending you a notice or serving you a complaint, you must immediately notify your own insurance company.
Under Massachusetts Law, if you are involved in a motor vehicle accident which results in personal injury or damage to property of over $1,000.00 you must notify the police department. In addition, to preserve your rights, you must notify your own insurance company about your involvement in an accident within one (1) business day. Indeed, if you are involved in an accident in someone else's car, you should make sure that the motor vehicle insurance company for that car as well as your own insurance company is notified of the details of the incident.
If your own insurance company's adjuster contacts you (or the PIP carrier for the car in which you were riding), you must cooperate. Be advised, though, that the adjuster will want to record your discussion and will then hold you to your statement later regarding your injuries, property damage and how your accident occurred. If an insurance adjuster for another operator's liability insurance carrier contacts you, you have no obligation to speak with him or her and you may defer any contact until you seek legal assistance. In any case, be careful and be sure not to do anything until you speak to an attorney.
Your first meeting with an attorney will serve several purposes. First, it will allow you and your lawyer a chance to get to know one another and to establish a rapport. During the case, it is crucial that there be clear, open communication between the lawyer and the client. Second, the meeting will allow the attorney to provide an overview of procedures, benefits and rights available to the client. For example, the lawyer will explain how PIP works and such matters as coordination of benefits between PIP and health insurance, if any. Third, the meeting is the beginning of fact-finding concerning the case. Accordingly, it is important that the client bring to the meeting as much information as is possible concerning the accident. The client should be prepared to describe completely the happening of the accident as well as all injuries received with specificity. In addition, it is extremely helpful to have any documents available which relate to the accident, injuries and medical treatment and insurance coverage. Examples are:
At the end of the first meeting, a definitive plan should be in place to provide notices to all concerned parties, commence application for PIP benefits payments and conduct further accident investigation as is necessary.
Certain coverages are compulsory. That means that the coverages are required to be purchased when your automobile is registered. The most important of these coverages are:
The minimum limits of coverage are mandated by law. Currently, personal injury protection coverage is $8,000.00 which is available to pay medical costs and wage replacement. Uninsurance benefits are required to be maintained at the $20,000.00 level. Bodily injury coverage is likewise required to be $20,000.00. Periodically, these limits are increased. Of course, you may purchase coverages above and beyond these minimum limits. As will be discussed below, you should carefully consider the needs of you and your family and wisely buy insurance coverage like you would any other consumer product or service.
Medical payments coverage is optional, additional coverage to pay the costs of medical care over and above the Personal Injury Protection benefits. This coverage is coordinated with PIP medical protection. Speak to your insurance agent about this and how it might help you if you are seriously injured.
Your personal injury protection benefit is designed to pay medical bills and lost wages. The coverage is $8,000.00. Whether used for the payment of medical bills, lost wages or other covered costs, PIP will pay no more than $8,000.00 in total for any combination of these benefits. In order to obtain lost wage benefits, you or your attorney must obtain documentation from your employer as to your period of absence, daily or weekly wages, as well as the availability of any salary continuance benefits within your employment. This information will assist the auto insurance carrier in determining the gross amount of your wage loss. The auto insurance carrier is required to pay you 75 percent of your unreimbursed average gross weekly wage loss. Again, it is essential that any medical or lost wage benefits claim be accompanied by a completed personal injury protection benefits application, medical documentation, and employer-completed lost time and lost wage documentation.
Under Massachusetts law, after the first $2,000.00 of PIP coverage is exhausted to pay medical claims, an injured person's health insurance company must afford coverage for medical care for injuries received in a motor vehicle accident. If the health insurance company pays benefits under its plan but there remain outstanding bills or balances, the PIP insurance will resume payment up to the $8,000.00 maximum assuming that the remaining benefits have not otherwise been paid out to reimburse lost wages. If there is no personal health insurance coverage available, the PIP insurance continues payment after the first $2,000.00 of benefits is exhausted. However, the second layer of $6,000.00 of PIP is also available for lost wage replacement. Accordingly, the application of that layer to medical bills or to wages should be carefully evaluated.
"U" coverage means uninsured and/or underinsurance coverage. If you are injured as the result of another party's negligence, your attorney will seek compensation from the insurance company of that motor vehicle operator. However, in some cases, people who cause accidents are uninsured. In other situations, operators have too little insurance to pay a claim resulting from an injured person's serious injuries. In Massachusetts, motor vehicle operators are required to carry uninsurance and underinsurance benefits. In the event that you are injured as the result of the negligence of an uninsured driver, your own insurance coverage may be available to provide compensation for your injuries. Similarly, if the bodily injury limits of an negligent driver's policy are insufficient to pay your claim, your own underinsurance coverage is available if it exceeds the bodily injury coverage of the defendant. There are two important things to remember about "U" coverage. First, in order to preserve your rights to receive it, you must give prompt notice to your own insurance company of any accident or claim of injury. Second, you should carefully consider your need for optional uninsured and underinsurance coverage. Mandatory uninsured coverage is the minimum coverage. At this time it is $20,000.00 per person. Underinsurance will only be effective if purchased as an option in an amount greater than $20,000.00, since what is available is the difference between the bodily injury limits of the defendant and your underinsurance coverage. With "U" coverage, you are insuring against another operator's failure to carry adequate insurance. Accordingly, you should plan and purchase this coverage thoughtfully with the needs of you and your family in mind. Speak to your insurance agent or company about your coverages, and their adequacy and costs. Be a good consumer of auto insurance; don't let insurance purchasing decisions be made for you without your input.
A declarations page, also known as a coverage selections page, is your insurance company's outline of the coverages purchased by you in your motor vehicle insurance policy. The declarations page reveals the limits of your coverage and the premium cost for such coverage. You should carefully evaluate your declarations page to determine whether you have sufficient coverage in each of the categories of coverage and/or whether you should purchase optional protection. "Full" coverage does not mean that you have purchased coverage in each category. Many people are surprised to learn that their "full" coverage is simply the compulsory coverage. Compulsory coverage may not provide adequate protection in the event of a serious injury to you, your passenger and/or family member or if a person alleges that you were negligent in the operation of your motor vehicle. As discussed in other sections above, be a good auto insurance consumer and have your agent or company explain your coverages to you. Make sure that you and your family are as well protected as possible.
Medical records document the history of any injury, as well as a doctor's diagnosis and treatment of a particular medical problem. Medical records are important to establish the nature and severity of any injury as well as the treatment offered by a medical provider. Medical records are used to document a claim when settlement discussions are under way. Medical records also may be used as evidence if a trial is necessary. In short, medical records are used to illustrate damages sustained by a plaintiff in a motor vehicle accident case.
If your motor vehicle is damaged in an accident, you may make a property damage claim against another negligent operator. In most cases, if the vehicle is a total loss, a property damage claim is paid in accordance with "book value." "Book value" is essentially the fair market value of the vehicle as published in the NADA Official Used Car Guide or similar publication. If the vehicle can be repaired, a property damage claim is paid on the basis of a repair appraisal. In some cases, the property damage settlement is simply a mathematical computation. In other cases, negotiations occur concerning the true value of the loss.
Aside from your recovery of medical expenses and lost wages under the personal injury protection coverage of the applicable insurance policy, you may be entitled to make a claim for pain and suffering if you are injured as a result of someone's negligent operation of a motor vehicle. To qualify, you must have sustained serious injuries. In other words, under Massachusetts law, your injuries must involve:
If you are seriously injured, you should consult an attorney experienced in the administration of claims and the litigation of motor vehicle accident cases.
First, if your losses from a motor vehicle accident are serious enough to consider pursuing an action, you should consult an experienced attorney who can advise you of your rights and represent your interests. The attorney can ensure that proper notices are filed with potentially responsible persons and their insurance companies and can begin to gather the necessary information to support your claim. In other words, the attorney will work with you to obtain information such as witness statements, records of medical treatment, and expense and lost wage data to illustrate to the insurance company the nature and seriousness of your injuries. At this stage, your attorney will gather facts necessary to prove that your injuries happened as the result of another party's negligence. In most cases, your attorney will present and advocate your case to the insurance company of the operator who caused your injuries. This is done with an eye toward opening settlement negotiations. In fact, in most cases, settlement discussions begin with a demand for compensation which the attorney formulates and conveys to the insurance company. The attorney establishes the demand based upon the nature and extent of your damages including: injuries, disabilities, time away from work, expenses, etc. The attorney's own experience guides the process of establishing a demand and settling the personal injury claim, in conjunction with the thoughts and wishes of the injured client. Assuming that one or more of the criteria set forth in the section above have been met, in some cases settlement discussions are not immediately successful in motivating the insurance company to offer a fair amount for an injured person's damages.
In certain cases, the attorney will file a lawsuit in court in order to have a judge or jury decide disputes over fault or over plaintiff's damages. In these situations, even when the case goes to court, settlement negotiations continue. Eventually, if a matter is in litigation and cannot be settled in your best interest, it will have to be tried. A case could be tried to a judge, a jury or an arbitrator. Ultimately, a decision will be rendered concerning who was at fault an the accident, together with whether damages are due and how much they will be. Litigation is complicated, time-consuming and adversarial. Though most cases are settled, each case should be handled as though trial will be necessary. Accordingly, an injured person is well advised to seek the assistance of an attorney who is capable of bring a case to trial and is experienced in trial practice. Litigation is oftentimes a lengthy, frustrating and anxiety-producing process which is best avoided if possible. However, when one is forced to undertake litigation to obtain a reasonable recovery for his or her injuries, patience and an open and cooperative relationship between you and your attorney is essential.
Negligence occurs when a motor vehicle operator acts or fails to act so as to cause an unsafe condition and a collision. In some cases, negligence is established by virtue of an operator's violation of law. For example, if an operator travels through a red light or stop sign and causes a collision, he may be guilty of a traffic violation and liable for causing a motor vehicle accident. In other cases, negligence is established when an operator acts or fails to act appropriately under the circumstances. For example, under certain weather conditions the operation of a motor vehicle at the posted speed limit may nevertheless be unreasonable and therefore negligent, especially if an accident results. In most cases, a judge, jury, or arbitrator chosen by the parties will make the ultimate decision as to whether an operator's conduct constituted negligence.
Oftentimes there is a dispute as to whether an accident occurred as a result of the negligence of two or more motor vehicle operators. A judge or jury may find comparative negligence when a driver's injuries are caused in part by his own negligence. In such cases, the judge or jury reduces the recovery by the percentage of comparative negligence. In short, a plaintiff's damages are reduced when he is at fault. If a plaintiff's comparative negligence exceeds 50 percent, he cannot recover at all.
You are well advised to seek the aid of a competent attorney who can evaluate your motor vehicle accident claim, discuss with you the risks and benefits of settlement versus trial, and advise you as to your options. Of course, each case is different and varies regarding fault and damages. Decisions regarding whether to settle and what settlement offer to accept must be made on a case-by-case basis and in conjunction with an experienced attorney.
In this set of circumstances, your work related injuries are compensable under the Workers' Compensation Act. At the same time, you may have a right against a negligent motor vehicle operator as well. The interrelationship between a workers' compensation case and a personal injury claim is always complicated. You must be careful, as you will be dealing with at least two different insurance companies and their claims personnel. As has been said, you shouldn't go it alone.
A lien is the legal right to repayment. Liens are established in motor vehicle cases in a few different ways. First, some medical providers establish liens to protect their right to the payment of outstanding medical bills from the settlement of a personal injury case. Second, personal health insurance companies establish liens to allow them to be reimbursed for any payments made for medical treatment in a motor vehicle accident case. Third, certain public benefits paid to motor vehicle accident victims may be recovered through liens. In all cases, Massachusetts law establishes procedures and rights of lien holders. If applicable, a lien reduces the amount of damages an accident victim receives.
First and foremost, you should call the police immediately. Obviously, if you or a passenger have sustained personal injury, obtain emergency medical assistance. You must report a hit and run accident to your own insurance company within 24 hours in order to preserve your right to coverage.