How Long Does It Take to Settle or Otherwise Resolve a Personal Injury Claim? – Part IIby Mia M Cloud (Cloud Law Firm)
The Investigation Phase of Your Personal Injury Claim.
The first step in resolving a personal injury claim is to investigate the claim. Ordinarily, it will take at least three to six months, sometimes a year or more, to perform the initial investigation into your claim. During that time, your attorney will take the initial steps necessary to obtain and secure relevant evidence necessary to the presentment and prosecution of your claim. Depending upon the facts of your case, the following are some examples of activities your attorney and his staff will likely perform:
1. Identify and secure physical evidence, such as wrecked vehicles and defective products. In some instances, the attorney may obtain these items from you. In other instances, your attorney can procure these items from the at fault party or an unrelated third-party. Often, the at fault party or third-party may refuse to provide your attorney the physical evidence and, in that case, your attorney may send certified letters to those entities advising them of your claim and requesting that they preserve the evidence (in some instances, Florida law provides a “spoliation of evidence” claim to be pursued against any entity that knowingly fails to preserve evidence of a personal injury claim).
2. Photograph evidence, such as wrecked vehicles, dangerous property conditions, and your injuries. Over time, physical evidence can change or become lost. Wrecked vehicles are repaired or scraped, dangerous property conditions are altered, and your visible injuries (like bruises or casts) can heal or become less visible. As such, photographs can serve a very useful role in the presentment of you accident claim.
3. Obtain reports generated by governmental or other investigating bodies. Your accident may have been investigated by the police department, sheriff’s department, highway patrol, emergency service personel (EMS), fire department, Occupational Safety and Health Administration (OSHA), Federal Aviation Administration (FAA), or any of a number of other governmental or other investigating bodies. If so, your attorneys will likely need to obtain the particular entities report as they often include relevant information about the accident, evidence, and witnesses. Further, you should know that, for whatever reason, these entities can take a very long time to create and produce their reports. If your accident involved a death, the investigating police department could take more than six months to create and produce their report. Even if your accident did not involve a death, and the report is requested on the day of your accident, a police department may take thirty to sixty days before producing the report. Further, some investigating entitles, such as the FAA, often take a year or more before finalizing and releasing their accident investigation reports.
4. Identify and interview witnesses. Independent witnesses are often crucial in an personal injury claim because, a jury may find the witnesses’ testimony to be less biased and weigh the witnesses’ testimony heavily. Over time, witnesses can move, pass away, or become lost. Also, it is normal for memories to fade. As such, identifying and interviewing witnesses, and when necessary, obtaining written or recorded statements, is a very important part of the initial investigation. Sometimes accident victims know the names and contact information of independent witnesses. Often, however, this step is delayed until the release of the investigating entities’ report.
5. Obtain information about the at fault parties’ insurance coverage and unprotected assets. This is important because, a judgment that exceeds the at fault party’s insurance coverage and unprotected assets is, in most instances, worthless because it cannot and will not be paid. Florida Statute requires the at fault party and his or her insurance carrier to release insurance information within thirty-days of your attorney’s request; however, said statute does not provide an express penalty if the at fault party and his or her insurance carrier fails to do so. As a result, although insurance companies generally provide insurance information within a couple months after an attorney’s request, it is not terribly unusual for an insurance company to totally ignore a request for insurance information, essentially forcing the accident victim to file a lawsuit to determine the extent of insurance coverage. In the event that the at fault party does not have sufficient insurance coverage, there are certain companies which specialize in identifying and locating the at fault party’s assets. You will need to consult an attorney about whether those assets are protected under Florida and Federal laws.
6. Obtain your medical records from your current and prior health care providers. This is necessary for obvious reason; however, health care providers are often slow to respond to attorney requests for medical records and billing information. Further, if your medical treatment is ongoing, this step can often take a long time.
7. Obtain your medical billing and lien information. To ascertain the extent of your damages, your attorney will need to obtain this information from entities such as: your PIP carrier, your health insurer, Medicaid, Medicare, or other applicable entities. This step often takes a very long time, especially if Medicaid, Medicare, or another governmental agency is involved, as they can take three months or longer to respond to requests for medical billing and lien information.
8. Obtain your employment and income information, such as your employment file, check stubs, and tax returns. In the event that your have missed substantial work or will miss substantial work in the future, it is important to document your employment history and income. While employers often respond quickly to requests for employment information, it can take months to obtain records from the Internal Revenue Service (IRS).
9. Research applicable law. No attorney has all of the Federal, State, County, Municipal, and regulatory laws memorized. A good attorney, however, will recognize important legal issues which arise as a consequence of the particular facts of any given accident. What does Florida law (and applicable county ordinances) say about riding a bicycle on a sidewalk, but against the flow of traffic on the adjacent street? Oftentimes, a resolution of those issues will require the attorney to research and evaluate the application of the law to your case, and your attorney will likely need to conduct some level of legal research prior to moving to the second step of making a demand and negotiating a resolution of your injury claim.
Again, this first step will generally take at least three to six months to complete, and in some cases may take much longer.