Frequently Asked Questions For Ohio Personal Injury Claims
If you are looking for answers to basic questions about your Ohio injury claim, this part of the Miraldi & Barrett web site is devoted to providing thorough answers to those questions. Whether you were injured in a car crash, by a defective product, or a vicious dog, these questions are answered here. If the injuries involve the spine, a serious fracture, paralysis or relate to the death of a family member, this section will answer your questions. If you do not find the answers to your questions here, please call us at 1-800-589-3023.
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When someone is a bad driver or is intoxicated, can the person who gave the car keys to that person also be held responsible for the damages that driver causes?
In Ohio, an owner of a car is liable if the owner negligently entrusts the car to an incompetent driver. A person can be incompetent if he or she is inexperienced in driving a car, has a long history of traffic citations or prior accidents, or has a history of driving under the influence of alcohol or other drugs. The owner or entruster must be aware of this incompetence or reasonably should be aware of these things.
It used to be that only the owner of a car could be charged with negligent entrustment. However, in a recent case a teenager who was not the owner of a car (his mother was), allowed another friend to drive the vehicle. When the friend was in an accident, the injured party also sought recovery from the teenager who let the bad driver get behind the wheel of the car.
I got hit by a police car that was responding to an emergency. The city says that the police officer is immune under these circumstances. If this is true, can I bring an uninsured motorist claim?
It depends on the language in your automobile insurance policy. If the policy says that you can only file an uninsured motorist claim if you are legally entitled to recover from the uninsured driver, then you probably cannot. If the policy defines an uninsured motor vehicle to include a governmental vehicle covered by an immunity, then you can. For more information, click here.
If my case goes to trial, will the jury know how much insurance the other driver has?
No. Not only will the jury not know the amount of the wrongdoer's insurance limits, the jury will not even be told whether the wrongdoer has insurance covering the accident. In fact, the law forbids the introduction of any evidence that the defendant had insurance. Under Ohio law, the jury is to decide fault and money damages solely on the evidence presented. Whether a person has insurance is not relevant to those questions.
Under what circumstances is the other driver responsible for my harms and losses?
In Ohio, the other driver must have been negligent in causing the collision in order for you to recover for your harms and losses. A person is negligent if he or she violates a traffic law or fails to exercise reasonable care under the circumstances. You must also show that your injuries were directly caused by the trauma of the collision.
What can a family recover when a family member is killed in a car crash due to someone elses negligence?
When someone is killed in a car crash, two possible legal remedies exist – a survival claim and a wrongful death claim. If the person did not die instantly, the survival claim allows the person’s estate to recover for his or her medical bills and pain suffered prior to death. A wrongful death claim is brought on behalf of the person’s immediate family and allows the family to recover a variety of harms and losses.
These harms and losses are divided into two categories: economic losses and non-economic losses. The economic losses allow the family to recover the lost earnings and support that the decedent (the person killed in the crash) would have provided to his immediate family for the decedent’s entire work life. In addition, the family can recover for the household services that the decedent performed around the house – including cooking, housework, child care, household maintenance – and now must be replaced. In both situations, an experienced personal injury attorney will hire an economist to calculate those losses.
The family is also allowed to recover for non-economic losses, too. This would include compensation for mental anguish suffered by the family members arising out of the death. It may also include claims for loss of companionship, loss of advice, and other personal losses that result when a family member dies and the remaining family member no longer have that person’s guidance and love.
In both a survival action and wrongful death claim, the claim is brought by the personal representative of the decedent’s estate on behalf of the decedent’s family and next of kin. This means that the executor of the estate brings the lawsuit and chooses the attorney who will represent the family in prosecuting these claims. The personal representative and the attorney work with all of the family members to make sure that all of the family’s losses are presented.
What should I do if I was injured in the car crash, butdon't have health insurance to pay for any treatment?
Even though you do not have health insurance, you may have medical payments coverage under your own automobile insurance policy. Most of the time, your agent will include this coverage with your liability coverage. If so, you can submit your medical bills to your own auto insurer until you have exhausted your medical payments limit. Your own insurance company will later seek reimbursement of these amounts directly from the wrongdoer or the wrongdoer's insurance company.
If you do not have health insurance or medical payments coverage, then you will need to seek a medical provider who is willing to wait to be paid out of the settlement or the jury verdict. Not all doctors will agree to do this. However, some will. These doctors will often have you sign a paper that authorizes them to be paid directly from the settlement. This is called a "letter of protection".
My doctor wants me to have physical therapy for my back strain, but I do not have time to fit that into my schedule. What should I do?
In evaluating claims, insurance companies believe that if you did not take the time to get necessary treatment that you were not seriously hurt. Juries also reach that same conclusion.
Whenever someone is injured in a car crash, they have an obligation to take all necessary steps to get well and to get well as soon as possible. If a person refuses necessary treatment and delays his or her recovery, the law does not allow a recovery for a prolonged disability if the condition would have cleared up earlier with proper treatment.
Therefore, it is critical that you follow your doctors orders and find the time to get the treatment necessary to get well. If not, you are providing defenses to the insurance company that will allow them to greatly minimize the value of your claim.
The 17 year old driver whose car struckmy carhad been involved in an auto accident just three months before. Are his parent's responsible for my injuries, too?
The parent who co-signs for a probationary license is jointly liable with the child for the child's negligence in operating a car, but this joint liability is not applicable if the parent buys liability insurance company for the child that is in compliance with state minimums. If the parent is the owner of the car, there is the possibility of a claim of negligent entrustment. Under negligent entrustment, Ohio law holds the owner of a car responsible for the negligence of another driver of that car, if the owner was negligent in allowing the other person to drive the car in the first place. Under this theory, an owner is liable when the owner entrusts the vehicle to someone so lacking in competency and skill as to convert the vehicle into a dangerous instrumentality. This theory is applied in cases where the driver has a record of multiple traffic accidents or offenses, in cases where the person does not have a driver's license, or in cases where the owner should know that the driver is impaired.
The fact that a person has had one prior auto accident is probably not enough to demonstrate that the driver was so incompetent that the vehicle became a dangerous instrumentality when the driver got behind the wheel.
I hit my head during the collision, but did not lose consciousness. I've had headaches and find it difficult to concentrate. This has gone on for several months. My family doctor tells me not to worry about this. Could this be the result of the car crash?
Mild brain injuries often go undiagnosed after an automobile collision. It is well-recognized that even in cases where the head does not strike the interior of the car, the brain can be damaged. Symptoms of mild brain injury may include headaches, confusion, dizziness, forgetfulness, and lack of concentration. Neurologists and neuro-psychologists are the medical providers most likely to assess individuals with these symptoms.
A neurologist deals with injuries to the brain and nervous system. Neurologists can use special scans to attempt to detect subtle injuries that before went unnoticed. A neuro-psychologist is able to determine if a person’s brain is processing information in a normal way. A neuro-psychologist can run a number of objective written tests to determine whether a person is able to process information normally.
If brain function seems to have deteriorated after a serious auto collision, the injured person should seek proper medical attention to assess the problem. At Miraldi & Barrett, we have represented a number of clients who have sustained mild to moderate brain injuries in automobile collisions. Don't delay getting specialized medical attention for these symptoms.
Can juries award as much money as they think appropriate in serious automobile or truck crashes?
No. Under a law passed as part of Ohio Tort Reform, the Ohio legislature stripped the jury of the right to award as much money as it demmed appropriate for non-economic losses. The legislature left intact the jury's ability to award as much money for economic losses (medical bills and lost wages) as the evidence demonstrated. However, for non-economic losses such as pain, discomfort, inability to do various activities, worry, anxiety, permanent scarring, and other intangible losses, the legislature will only enforce the jury's award up to certain limits. This amount can vary from between $250,000 to $350,000, depending on the amount of economic damages proved. There is no limit on non-economic damages for permanent and physical deformity, loss of use of a limb, loss of a bodily organ system, or for injuries that take away the person's ability to care for himself.
There is no limitation on damages recoverable for wrongful death claims.
The other driver was at fault for causing a collision and my car is not driveable. Should the other driver's insurance company provide me with a rental car?
Under Ohio law, you are entitled to a rental car if your car is not a total loss and is repairable. If the cost of repairs is greater than the fair market value of your car, then your car is a total loss. The law only recognizes your right to a rental vehicle for the period of time your car is being repaired, assuming that the repairs are made quickly after the collision. If your car is a total loss, the other driver's insurance company is not obligated to provide a rental vehicle, although some will provide one as a courtesy. If the other driver's insurance company will not provide a rental in this situation, you should check with your own auto insurance to see if you have rental reimbursement coverage that will likely cover this expense.
The other driver's insurance company wants me to sign a medical authorization to get my records and bills related to injuries sustained in the crash. Should I sign it?
Sign it only if you don't care if the insurance company looks at all of your medical records. The insurance company usually sends a broad medical authorization that will allow its employees to get any of your past records along with your current treatment records. This obviously allows them to get records that are private and have no relevance to the injuries sustained in the auto crash.
By signing the authorization, the insurance company also now has permission to talk directly to your treating physician. The insurance company may also ask your doctor to fill out a questionnaire in which he or she is asked when you will likely complete treatment. If your treatment takes longer than what the doctor estimated, the insurance company may claim that you are exaggerating your symptoms.
The better rule is not to sign the medical authorization until you have consulted with an attorney and discussed all of the ramifications.
My health insurer has paid my medical bills and now wants to be paid out of my settlement. Does my health insurer have a right to be paidback from the settlement?
Probably. Most health insurance policies have a provision that allows the insurance company to be reimbursed for medical expenses that were caused by the negligence of a third party. This includes a negligent driver who injures you in a car crash. This right to reimbursement is known in legal terms as a "right of subrogation". The health insurance company bases its premium on the assumption that it will get reimbursed for payments made under these circumstances.
When our firm is involved, we make sure that the charges that the health insurer is attempting to recover were actually caused by the crash and not for something totally unrelated. We also attempt to negotiate a lesser amount for the payback so that you receive more of the settlement.
One of the real problems is when your health insurer has paid amounts that are more than the wrongdoer's insurance coverage. Often the health insurer will claim that it is entitled to all of that money instead of you. A law firm will need to investigate whether the health insurer is entitled to be paid first before you or whether you do. This determination is based on the policy language in the health insurance contract and case law. In many cases, we try to work out a compromise where you and the health insurer share the settlement funds based on some equitable distribution.
I was involved in a car crash. What am I entitled to receive for my injuries and losses?
In injury cases, you are entitled to recover "economic damages" such as the reasonable cost of your medical treatment, the cost of future medical treatment, your lost wages, your future lost wages, and other out of pocket expenses. You are also entitled to receive compensation for "non-economic" or personal damages that are more difficult to quantify. These losses may include pain, mental worry and upset, , permanent limitations on your physical health, and your inability to enjoy your hobbies and special activities.
Your spouse may be entitled to losses stemming from your inability to do normal household and marital activities.
The other driver's insurance company has agreed to pay what I say I'm owed. Should I settle out of court?
If you agree to accept the amount offered, you need not go to court. Just be sure to seek the advice of a legal professional before settling