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If you or a loved one have been injured by the negligence of another, it’s important to understand your options. You may be entitled to coverage under one or more motor vehicle insurance policies, general liability insurance policies, homeowners’ insurance policies, or other types of insurance, such as professional liability coverage. There are important timing considerations for providing notice of your claim to the appropriate parties, and deadlines for bringing your claim. You may have options for how you seek and pay for medical treatment. And it can be difficult to understand whether an insurance company’s offer to settle your claim is reasonable.
What kinds of injuries can I make a claim for?
A personal injury claim can generally be brought for injuries that result from the negligence of another person or entity. Common types of personal injury claims are:
- motor vehicle collisions;
- slip and falls;
- animal bites;
- wrongful death;
- medical malpractice; and
- insurance breach of contract and bad faith.
To recover for personal injuries, you must generally be able to show that the at fault party was negligent and that you (or in the case of wrongful death, your spouse, child, or parent) suffered damages as a result. The most common way of showing damages is through medical bills, though you are also entitled to recover for things such as lost income, out of pocket expenses, loss of enjoyment of life, pain and suffering, and physical impairment/scarring.
What is the general process for bringing a personal injury claim?
Generally, the process for bringing a personal injury claim involves identifying the at fault party or parties, contacting their insurance carrier(s), conducting a liability investigation, evaluating your damages, pursuing settlement negotiations, and potentially filing a lawsuit and going through the litigation process. In many cases, it makes sense to delay pursuing settlement negotiations until you have completed medical treatment, so that the full extent of your damages can be presented to the insurance company, and evaluating your damages can also sometimes require retaining experts such as vocational rehabilitation counselors, functional capacity evaluators, neuropsychologists, and/or economists.
How much can I recover from the at fault person’s company?
Under Colorado law, you are entitled to recover for your economic damages, your non-economic damages, and for any physical impairment or scarring.
Your economic damages include economic losses caused by the at fault person’s negligence. These may include medical bills, wage loss, out of pocket expenses (such as a new mattress or pillow), probable future medical treatment, and similar items. This category would also include motor vehicle property damage in the event that a lawsuit was filed. However, the adverse insurance company may attempt to argue that certain expenses were not caused by the collision, for example because a medical condition was allegedly preexisting or because you did not do enough to mitigate your damages (for example, by not returning to work when you were able to).
Importantly, under Colorado law you are generally entitled to recover for the amount of your medical bills, rather than what is actually due back. These numbers may be very different due to contractual reductions resulting from health insurance payments and/or medical payments by your own insurance company. Additionally, to recover for medical bills they must be reasonable, necessary, and related to the collision, and insurance companies frequently assert defenses based on these grounds. With increasing frequency, insurance companies also use computer tools such as Colossus and Mitchell Decision Point to attempt to argue that medical providers charged too much or that treatment continued for too long.
Your non-economic damages include pain and suffering. This category of damages can be difficult to define, and insurance companies’ valuations may depend on things such as the severity of your injuries, the amount of your medical bills, or the duration of your medical treatment. They may also use computer programs such as Colossus to value your non-economic damages.
The last major category of damages you are entitled to recover for is physical impairment/scarring. This includes permanent scarring (including the potential cost of scar revision), or temporary or permanent loss of a body part. In regard to scarring especially, it is important to take photographs of your injuries in order to preserve your right to recover for them.
There are also additional categories of damages that you might be entitled to recover for, such as exemplary damages. Exemplary damages, also known as punitive damages, may be available if the other party acted particularly outrageously, for example by causing a motor vehicle collision while driving drunk or using a cellphone. While most insurance liability policies do not cover exemplary damages, the at fault party’s insurance company may be more willing to agree to a proposed settlement to avoid exposing its insured to these damages in a lawsuit.
The insurance company claimed my medical treatment was for preexisting injuries, what should I do?
Insurance companies frequently attempt to avoid paying medical bills by claiming the treatment was for preexisting injuries. However, under Colorado law you are entitled to recover for aggravation of prior injuries and also for injuries that were unusually severe due to your particular susceptibility to them. Whether medical treatment was for a preexisting injury or resulted from aggravation or a particularly susceptibility (also known as the egg shell rule) can depend heavily on the facts of your case and your medical history, or even be a matter of perspective.
Do I have to pay back medical expenses out of my settlement?
Determining who does and does not have to be paid out of a settlement can be complicated. In some unfortunate cases, not paying back the necessary parties can expose an injured person to lawsuits by hospitals or their own health insurance company.
In general, health insurance companies that have paid incident-related medical bills, including Medicare and Medicaid, have a right to be paid back what they have actually paid (this concept is known as subrogation). Certain types of medical facilities, especially hospitals, also have the right to assert a lien, and often do. Similarly, medical providers, provider networks, and lenders that you have agreed to repay through a lien agreement generally need to be repaid.
In contrast, your automobile insurance company generally does not have a right to be repaid for medical payments benefits.
The above aside, other providers may simply have outstanding bills, which you may have a general legal obligation to repay but do not need to pay from a settlement.
Last, an experienced personal injury attorney can often negotiate with medical providers and health insurers to ensure the best net recovery possible for you. Certain legal doctrines, such as the common fund or made whole statutes, may be available to reduce or eliminate a health insurance company’s subrogation claim entirely.
I’ve been injured. Can my spouse also bring a claim?
Your spouse may be able to assert a claim for loss of consortium. However, these kinds of claims can be difficult to prove, and a skilled personal injury attorney can help you evaluate whether or not it is worth bringing such a claim.
I was injured by a government entity. Can I bring a claim?
Colorado’s Governmental Immunity Act governs personal injury and similar claims against government employees and entities. You can still bring a claim, but there are specific rules, primarily:
- you or your attorney must provide the correct representatives of the government entity with a specific form of notice of the claim 182 days or less after the incident;
- only certain types of claims are permitted (for example, claims for defective roadways where the defect doesn’t interfere with the flow of traffic are generally barred); and
- most types of damages will be capped (for injuries occurring on or after January 1, 2018, the cap is $387,000).
How much time do I have to bring a personal injury claim?
There are a number of applicable statutes of limitations for personal injury claims, which generally provide the date by which either the claim must be settled or a lawsuit filed. Some of the more common statutes of limitations are:
- three years from the incident date for motor vehicle collisions and uninsured motorist claims;
- two years from the incident date for slip and falls, animal bites, and general negligence claims;
- two years from the incident date for professional malpractice;
- two years from receiving a settlement or judgment for underinsured motorist claims; and
- one year from the incident date for intentional injuries, such as assault.
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