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.
Is my personal injury settlement taxable?
In almost all personal injury cases, the settlement or jury award is not taxable for purposes of federal or state income tax. The tax code says that any amounts recovered for a physical injury are not income. This includes amounts paid for lost wages, medical bills, emotional distress, pain and suffering, attorney fees, and other related harms and losses.
The rationale is that this money is not income, but is the result of a loss. These funds only make the person whole. It is easier to see how this applies in another setting. For example, when the person receives a check for damage to the car involved in an accident, these funds are not income. The same reasoning applies when a person sustains bodily injuries due to someone's negligence.
A different rule applies if the person injured did not sustain any physical injury, but only emotional injuries. In those cases, the settlement or judgment is taxable. These cases include claims for employment discrimination, negligent infliction of emotional distress, or defamation.
If a person recovers punitive damages, punitive damages are taxable. Punitive damages are damages in excess of what is necessary to make a person whole. These damages are designed to punish the defendant and serve as a deterrent to further similar conduct in the future. However, compensatory damages (the actual losses sustained) are not taxable.
Are punitive damages available in Ohio dog bite cases?
Punitive damages can be recovered in an Ohio animal and dog bite case. Punitive damages are extra damages awarded to punish the owner of the dog. There are two types of damages that are available in Ohio - compensatory damages and punitive damages. Compensatory damages are damages awarded for medical bills, lost wages, pain, mental anguish, and permanent disfigurement. Punitive damages are extra damages awarded to punish the defendant.
In Ohio, punitive damages can be awarded against the owner of a dog if the dog had vicious tendencies, the owner knew of the vicious tendencies, and the owner was negligent in keeping the dog, controlling the dog, or failing to warn about the dog. You must also prove that the dog owner intended to have the dog injure you or just had complete indifference to your safety.
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.
What is a deposition?
Once a lawsuit has been filed, the attorneys for both sides can take oral statements from parties and witnesses under oath. Questions must be answered under oath, and are recorded by a court reporter,who then provides a transcript. Depositions may be videotaped, as well.
In court, a deposition might be introduced when a witness is unavailable; to remind a witness of what he or she said previously under oath; or to challenge the credibility of a witness who, in court, contradicts statements made in a deposition.
When attorneys take the deposition of a party, they are gauging if a party will be an effective witness at trial. Is the person believable? Can he or she express herself effectively? Can the witness keep his or her composure when asked difficult questions? All of these things are evaluated when a deposition is taken.
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.
Should I get a second opinion if an attorney thinks I do not have a case?
This is usually a good idea. Some lawyers may not be familiar with the type of case or may not have the time or money to prepare your case for trial. If your case involves substantial losses and is rejected by one lawyer, it is always a good idea to seek a second opinion from another lawyer. We have obtained significant settlements and verdicts for clients whose personal injury cases were originally rejected by other attorneys.
Can my claim be compromised by participating on social networking accounts like FaceBook or MySpace?
If you belong to a public social networking account such as FaceBook, MySpace, YouTube, Twitter, Google Buzz, etc., you should close that account until your case is resolved.
If you cannot do so, please be aware that whatever you write or post, or have written or posted, may fall into the hands of the insurance company defending your claim. Most insurance companies are obtaining this information and usually without your knowledge or permission. If you have such a site, you should immediately verify that all your settings are on PRIVATE (the highest setting possible) and nothing is public. Even at the highest privacy settings, you should not post anything that you would not want to be public. Do not allow anyone to become your "friend" on any of these accounts unless you absolutely know that person.
Insurance companies get access to these accounts and sites and then use that information to claim that the person's injuries were exaggerated or even caused by something other than the incident that is the basis of your claim. Insurance companies have successfully used such information; even posts that were considered innocent, harmless joking between private "Friends," to convince a judge and juries that plaintiffs have been dishonest. Please always be aware that whatever you post can be used against you in litigation.
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.
I signed a release with the insurance company several weeks ago and now just discovered that I will need surgery for a herniated disc in my neck. Can I re-open the claim?
A release validly extinguishes a person's claim for additional money damages if both sides intended the release to be final and to encompass injuries known and unknown at the time of the signing.
In limited situations, a release may be avoided if the injured person can establish that the release was executed by mutual mistake. A mutual mistake may occur when both sides believe that there is no injury and then an injury later develops. However, if the release covered all injuries, those known and unknown, mutual mistake will not be established.
A release can also be cancelled if the release was obtained by fraud in the inducement. For example, if the insurance company misrepresented that the release was final or stated that it would continue to pay medical bills, this may constitute fraud and void the release.
If you have any doubt as to the effect of a legal document that an insurance company is asking you to sign, you should go to an attorney and have the document reviewed.
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.
What is the time limit for filing a medical malpractice claim?
This can be complicated and you should check with an attorney familiar with medical malpractice law to determine the statute of limitations in your case. There may be exceptions to all that is stated in this answer. Generally,in Ohio, the time limit for adults (over eighteen) to file a lawsuit in court is ONE YEAR from the date that a reasonable person should have known that they have suffered an injury due to care provided by a medical professional or ONE YEAR from the last physician -patient relationship for that condition, whichever is longer. This time limit may be extended by 180 days by sending a properly worded letter before the one year time limit notifying the medical providers involved that you are considering bringing an action against them as a result of medical care they provided to you. The time limit for injury to minors is generally one year from the time the minor reaches age eighteen. The time limit for a wrongful death claim is TWO years from the date of death.