Massachusetts Personal Injury Blog

Making a Claim for Underinsured Motorist Benefits in Massachusetts

If you have been injured in an auto accident in Massachusetts, there is always the possibility of making an underinsured motorist claim.  If the driver who caused your personal injuries does not have enough bodily injury (BI) coverage to cover the cost of your injuries, then you need to look to your auto insurance carrier for underinsured motorist benefits.  But, before making such a claim, you need to be aware of something important: You cannot, per the standard Massachusetts automobile insurance contract, collect underinsured motorist benefits without first receiving permission from your auto insurance carrier prior to settling your claim with the other driver's bodily injury carrier.

And also, you are only entitled to underinsured benefits if your coverage exceeds the bodily injury coverage of the driver who caused your injuries.

Lawsuits Brought by Minors in Massachusetts

Minors in Massachusetts cannot initiate a lawsuit.  When a minor, for example, has a personal injury claim that requires litigation, the lawsuit is brought by the minor's parents.  The parents, in the context of litigation, are referred to and named in the lawsuit as "next friend."  At times, a guardian must be appointed and approved by a court if the parents are not alive or do not have the capacity to act as "next friend" on behalf of the minor.

Miscellaneous Massachusetts Auto Insurance Information

Here is some miscellaneous information about auto insurance in Massachusetts:

Collision coverage in Massachusetts is optional coverage, but I strongly suggest you buy it.  Although collision coverage can be expensive you need it in case your car is damaged in an accident with another vehicle.  This coverage will pay for the damage to your vehicle.  Although collision coverage can sometimes be expensive (as opposed to liability coverages) you need to have it.

Comprehensive coverage is optional in Massachusetts.  This coverage will protect you if your vehicle burns, is vandalized, stolen, damaged by an animal, or damaged by mother nature.

Property damage coverage in Massachusetts is required with a minimum of $5000.00 in coverage.  This coverage will pay for property that you damage if you cause an auto accident.  I suggest you buy $100,000.00 in property damage protection.

A deductible is the amount of money that you are required to pay.  If you have a $500.00 deductible, you are contractually responsible to pay the first $500.00, and then your carrier pays the rest.  The lower your deductible, the higher your premiums cost.  The higher your deductible, the less expensive are your premiums.

New "Massachusetts Lawyers Weekly" Publication for Non-Lawyers

Massachusetts Lawyers Weekly, a weekly publication for lawyers on news and developments in Massachusetts law, has recently launched Exhibit A.  Exhibit A is a monthly newsletter written by lawyers and intended for non-lawyers.  It is written in a way which makes the law a little less confusing and easier to understand.  It is a FREE monthly publication you can pick up at most MBTA stations.  The newsletter covers many different legal topics which you may find useful if you have specific legal questions, or, if you are just interested in the law generally.

Should You Give a Recorded Statement to the Insurance Adjuster?

No.  Never.  It will only hurt your case.  Insurance adjusters are trained to ask certain, specific questions which are intended to make the strongest personal injury claims look weak.  Here is a great post regarding recorded statements, and their pitfalls from Maryland personal injury attorney Ronald Miller over at his Maryland Injury Lawyer Blog:

Most insurance adjusters tell personal injury lawyers that they need a recorded statement from the lawyer's client to "firm up liability" or to "assess credibility." But providing a recorded statement is typically a "loose-tie." It rarely results in a finding on liability in favor of the accident attorney's client. Of course, this is not to say that this is always the case, but absent special circumstances, the downside far outweighs any benefits.

The Approach Taken By Insurance Companies With Low-Impact Auto Crashes

Kudos to CNN.com for injecting into the public discussion a topic that has been ignored for too long.  The article exposes the travesty of how auto accident victims in low-impact motor vehicle accidents are being "low-balled" by big, powerful insurance companies.  Many Massachusetts residents are involved in low-impact motor vehicle accidents each year.  These accidents can cause very serious injuries to those involved.

What if My Personal Injury Damages Exceed the Policy Limits of the Driver Who Hit Me?

This is a common scenario.  The driver who caused your Massachusetts motor vehicle accident only has $20k in liability protection.  But, suppose your damages (medical bills, lost wages, pain and suffering) exceed $20k.  In that event you must make an underinsured claim with your auto insurance carrier.  The minimum amount you must have in Massachusetts for underinsurance is $20k.  But, your underinsurance coverage only kicks in if it exceeds the amount of the liability policy limits of the at-fault driver.  Therefore, purchase as much underinsurance coverage as you can afford.  It can make a world of difference and protects you when you most need it.

Effective Massachusetts Personal Injury Demand Letters

If you are handling your Massachusetts personal injury claim without an attorney, you will need to know how to write, and present, an effective demand letter to an insurance adjuster.  Here is a primer from  Nolo.com on this very topic:

"The demand letter is the centerpiece of the insurance claim negotiation process. In it, you set out to the insurance company your strongest arguments concerning:

• what your injuries were and are
• why the other person is legally responsible for your injuries
• what your medical treatment was and how much it cost
• what your income loss was
• what other damages you suffered.

Your letter should conclude with a demand on the insurance company for a lump sum to settle your entire claim."

Tips For Negotiating Your Massachusetts Personal Injury Claim

As most of you may know, the "opening offer" by an insurance adjuster is just that; it is an "opening offer."  You must keep in mind that all insurance adjusters are delegated a certain amount of "authority" for each claim they handle.  Therefore, never accept an "opening offer." 

The adjuster assigned to your claim will contact you to attempt to resolve the claim once your "demand letter" has been reviewed.  Do not lower your demand until the adjuster has made you an offer.  You and the adjuster will go back and forth negotiating.  If you feel the adjuster is being unreasonable, request to speak to his/her supervisor.  That is perfectly acceptable and the adjuster will not be offended with the request.

Always be respectful towards the adjuster, no matter how contentious the negotiations become.

Good luck negotiating your Massachusetts bodily injury claim! 

Defenses Used By Insurance Companies With Motor Vehicle Accident Claims

I found the following over at the Taradash Law Firm web site which lists 72 common defenses used by insurance companies to avoid paying money to those injured in motor vehicle accidents.  A big thank you is in order to the Taradash Law Firm - an Illinois law firm dedicated to representing injury victims - for compiling such an exhaustive and impressive list.  Here are the common insurance defenses in connection with motor vehicle accident claims:

1. Plaintiff vehicle not equipped with headrest. seat belts, rearview mirror. or other safety device and it is plaintiff's responsibility to provide his vehicle with such devices. 2. Seat belts or other safety devices available in vehicle but not used by plaintiff. 3. Equipment defects in plaintiff vehicle: Tires bald. brakes not working, tail lights not working, turn signals not working. 4. Plaintiff driving ability and perception impaired by use of alcohol, medication, or drugs. 5. Plaintiff had hearing or vision defect and wasn't wearing glasses or hearing aid. 6. Plaintiff had other physical defect, i.e., epilepsy, headaches, sickness, etc., which impaired his driving ability and perception. 7. Plaintiff under doctor's orders not to drive. 8. Plaintiff not licensed to drive or driving with suspended license. 9. Plaintiff didn't notice defendant until impact or immediately before impact and therefore inattentive. 10. Plaintiffs recollection of times. speeds distances is so inaccurate as to indicate inattentiveness or incompetence in driving and at the very least diminishes his credibility. 11. Plaintiff exaggerates defendant's speed and other facts surrounding accidents so as to diminish his credibility which makes him an unreliable or unbelievable witness. 12. Plaintiff had warning or danger within a sufficient time to avoid accident if paying attention. 13. Plaintiff could have avoided accident if not exceeding safe speed for conditions. 14. Plaintiff made unnecessary and unexpected stop. 15. Plaintiff made unsafe lane change without warning. 16. Plaintiff gave no stop or turn signal. 17. Plaintiff backing up under circumstances and/or at location where reasonable person wouldn't have anticipated same or where it was difficult for defendant to see same. 18. Plaintiff not in intersection first. 19. if plaintiff and defendant in intersection at same time, plaintiff was to defendant's left or exceeding speed limit or safe speed or inattentive. 20. Plaintiff makes poor appearance as witness. 21. Plaintiff has verbal difficulty describing events surrounding the accident 22. Defendant acting as "reasonable person" in the operation of his vehicle including safe speed for conditions and therefore not negligent, i.e., defendant conducts not probable cause of accident. 23. Act of God or unknown reason was responsible for the accident. 24. No independent witnesses found substantiating plaintiff's version of accident or witness cannot be found (plaintiff, not defendant has legal duty to prove by a "preponderance of the evidence" each element of his case.) 25. Witnesses dispute plaintiffs version of facts or substantiate defendant's version. 26. Investigating police officer makes errors in his report or erroneous conclusions disputing plaintiff's version of accident. 27. Physical evidence (lights. brakes. tires. etc.) was lost and it was necessary to have it examined by an expert to substantiate plaintiff's version of the facts. 28. Plaintiff didn't obtain the services of an expert to substantiate negligence of other parties. 29. Police not summoned to scene inferring minimal or no injury. 30. No complaint of pain at scene of accident by plaintiff to anyone. 31. No indication on police report that plaintiff complains of pain at scene. 32. No objective signs or injury at scene of accident like cuts, bruises, etc. 33. No mews! by plaintiff at scene for ambulance. 34. Plaintiff not examined at emergency room day of accident or soon after. 35. Minimal property damage to either or both vehicles involved. 36. Plaintiff vehicle equipped w ith shock-absorbing bumpers, headrests, seat belts, which were being used and which made injuries impossible or improbable. 37. No other persons involved in accident had injuries. 38. Plaintiff received no treatment for substantial period of time following the accident. 39. Plaintiff made errors in recalling his medical and/or employment history to insurance company which can be' discovered' by defense during litigation. 40. No medical opinion substantiating medical causation between accident and plaintiff's medical complaints. 41. Shortly after the accident plaintiff's physical/health condition returned to what it was immediately prior to the accident 42. Plaintiff had made prior complaints and received prior treatment to the same areas of his body allegedly injured in the accident and his complaints after the accident hadn't changed. 43. Plaintiff had a subsequent injury, which was cause of continual problems instead of subject accident and so treatment between first and second accidents. 44. Plaintiff exaggerates complaints related to the accident per his medical records. 45. Plaintiff's complaints to doctor were minimal. 46. Plaintiff's complaints to doctor were bizarre, exaggerated, and lengthy per medical records. 47. Plaintiff's complaints to one doctor different from his complaints to other doctor(s). 48. Plaintiff had full range of motion at physical examination. 49. Plaintiff had no complaint of pain at physical examination. 50. Plaintiff observed moving normally while not being examined by doctor. 51. Plaintiff's family doctor had opinion of minimal injuries, did not prescribe physical therapy or any other treatment nor did they give an appointment for plaintiff to return or tell plaintiff to "return in a month if plaintiff experiences pain." Plaintiff did not see doctor again. 52. Plaintiff's injuries totally "subjective" i.e., no indication of injury from x-rays, orthopedic tests or observation. 53. Plaintiff received minimal treatment for minimal time period after accident. 54. Plaintiff's doctor no longer in area or otherwise unavailable. 55. Plaintiff was examined by doctor recommended by insurance company soon after accident and was found uninjured and not in need of treatment. 56. Plaintiff had chronic-type complaints per past medical records or has unrelated medical problems as such as arthritis or congenital problems such as spondylosis. 57. Cost of treatment was excessive and period during which plaintiff was treated was excessive in light of standard charge for such services in the community and normal period of disability for such injuries. 58. Plaintiff went to work contrary to his doctor's advice and thereby aggravated his injury and/or caused prolonged period of disability and/or treatment. 59. Plaintiff's doctor did not recommend time off of work yet plaintiff took time off work. 60. No doctor has stated that plaintiff would lose work time in the future. 61. Plaintiff had poor attendance record at work prior to accident. 62. Plaintiff would have been terminated, on strike, or laid-off even without accident. 63. Plaintiff had no job at the time of accident and can't substantiate that he was applying at various places. 64. Plaintiff's earnings per W-2 and tax records indicate smaller earnings history than claimed. 65. Plaintiff paid by cash for prior employment and can't document past earnings and/or has no tax returns. 66. Plaintiff's alleged employer has no official record (i.e., W-2 Fonn) or other means to substantiate plaintiff's employment. 67. Plaintiff lets various "Statutes of Limitations" run, thereby foreclosing possibility of recovering anything for his claim. 68. Plaintiff was partially at fault and should recover less. 69. Plaintiff has history of filing lawsuits for the purpose of collecting compensation. 70. Plaintiff has history of mental illness or emotional problems making him unreliable. 71. Plaintiff made statement to insurance company that he was not injured in the accident. 72. Plaintiff failed to give proper and timely notice to governmental bodies, thus plaintiff s claim is barred.