Q. What is necessary to bring a personal injury action?

A.  A personal injury case is nothing more than a negligence claim. The theory is that the person would not have been injured were it not for the negligence of the other party. It is foremost critical to clearly establish that the other party was somehow negligent, i.e., at fault, responsible or liable for the accident. Presenting a credible and successful case is, however, generally considered to be a two-pronged test. Establishing liability without proof of damages will rarely produce a significant offer of settlement from an insurance company and will likely yield a mere nominal judgment after trial. It is necessary, in any successfully negotiated or litigated claim, to both prove liability and clearly delineate your damages. I might, however, suggest that the burden is actually more of a three-pronged test in the sense that meeting the first two prongs may likely produce little or nothing if the responsible party (the "tortfeasor") or the injured person is not adequately insured.

Compensatory damages seek to place an injured person in the position in which he or she was prior to the accident, i.e., to "make them whole." A victim is entitled to those damages that fairly compensate for all loss and injuries suffered or that will be endured as a result of the accident. The victim is generally entitled to recover for reasonable expenses incurred for medical care and nursing, lost wages and impairment of earning capacity, general damages for pain and suffering, disfigurement or disability, aggravation of preexisting injury or disease, loss of enjoyment of life, loss of consortium, and wrongful death.

In automobile accident cases where there are no fractures, loss of sight or hearing, permanent and serious disfigurement, significant scarring, loss of a body part or death, a client will not be able to recover against the other party unless the client has met the monetary tort threshold (currently $2,000 in medical bills and funeral expenses) as defined in Massachusetts General Laws Chapter 231, §6D. In addition, the medical expenses must be "reasonable and necessary expenses incurred in treating such injury." A defendant may properly challenge medical expenses as being unreasonably high, unnecessary or incurred for purposes of treating a preexisting condition not related to or aggravated by the accident.

Some situations arise when parties are comparatively negligent and liability may be assessed on a proportionate basis. Under Massachusetts General Laws Chapter 231, §85, the plaintiff in a personal injury action has the advantage of a presumption of due care that remains until the defendant introduces evidence contradicting the presumption. The plaintiff will be barred completely only where his or her negligence is greater than the total negligence of the defendants against whom recovery is sought. If the plaintiff's negligence as compared with the total negligence of all the defendants is 51% or more (determined by a judge or jury), the plaintiff is totally barred from recovery. If the plaintiff's negligence as compared with the total negligence of all the defendants is 50% or less (determined by a judge or jury), the plaintiff's damages are reduced in proportion to the plaintiff's negligence.

The tortfeasor most likely has bodily injury coverage, which is the coverage that applies to all of the elements of damages, including pain and suffering, medical bills, lost wages, lost earning capacity and loss of enjoyment of life. In the event that the tortfeasor has no insurance and if uninsurance is insufficient to cover the damages, the client may have to sue the defendant unless the defendant is judgment proof. See below for a discussion of both uninsured and underinsured motorist coverage.

Q. How will my legal fees paid in a personal injury case?

A. Unlike other types of civil cases and criminal cases, in which an hourly fee or a flat rate fee might be charged, a contingent fee agreement is the mechanism that contractually binds the lawyer and client in most, if not all, personal injury cases. Also unlike other types of fee agreements, a contingent fee agreement is required to be in writing. The customary and standard industry fee is 33.3%, more commonly referred to as a "one-third" fee. Percentages may occasionally vary on a case-by-case basis. The "contingency" upon which compensation is to be paid to the lawyer is the recovery of any sums whether by settlement or litigation. The lawyer bears the risk that if there is no recovery, there is no fee. It is for this reason that the prudent lawyer will carefully evaluate the merits of a personal injury claim prior to undertaking legal representation of the client.

Q. What is PIP?

A. Personal Injury Protection ("PIP") is listed as Part 2 on the standard automobile policy and is governed by Massachusetts General Laws Chapter 90, §34M. PIP is a "no-fault" benefit, meaning that it makes no difference who is legally responsible for the accident. Therefore, the policyholder does not incur any subsequent increase in premium or surcharge as a result of benefits paid through the provision. The PIP insurer will commonly subrogate against the legally responsible party. The subrogation process is the responsible party's insurance company paying back to the PIP insurer any sums it has advanced under the PIP provisions of the policy, effectively being reimbursed.

PIP provides for payment of an injured person's medical expenses, lost wages and replacement services and generally affords coverage to (1) you, or any other person, if injured while occupying your auto with your consent, (2) you, or anyone living in your household, if injured while occupying an auto which does not have Massachusetts Compulsory Insurance or if struck by an auto which does not have Massachusetts Compulsory Insurance, or (3) any pedestrian, including you, if injured by your auto in Massachusetts or any Massachusetts resident, who, while a pedestrian, is struck by your auto outside of Massachusetts. On the other hand, PIP benefits are not payable to or for (1) motorcycle operators, motorized bicycle operators and moped operators, (2) persons who contributed to their injury by operating under the influence of alcohol or drugs, or while committing a felony or avoiding arrest, or specifically intending to cause injury to himself, herself or others, and (3) anyone entitled to workers' compensation benefits for the same injury.

PIP will pay for as many people as are injured or killed in any one accident, but the most it will pay for injuries to any one person is $8,000, irrespective of how many autos or premiums are shown on the insured's Coverage Selections Page. There is, however, a "coordination of benefits" if an injured person has his or her own health insurance policy, e.g., Blue Cross, Harvard Pilgrim, Tufts, Aetna, Cigna, etc.. In these instances, PIP will cover up to the first $2,000 in medical expenses and will thereafter notify the medical provider to submit any unpaid or future bills directly to the health insurer along with a copy of the "PIP 2K exhaustion letter" (lost wages, however, will continue to be paid uninterrupted from the remaining $6,000). PIP will typically thereafter cover any reasonable medical expenses that the health insurer either fails to cover or denies (e.g., deductibles, co-payments, non-covered services, etc.) up to $8000. It is, however, crucial to note that PIP now has the legal right to deny payment of any bill that the health insurer denied payment because a required "referral" was not made. It is therefore always critical for a patient-claimant to promptly obtain any necessary referrals from his or her primary care physician's office, in accordance with the requirements of the applicable health plan, no differently than if the patient were seeking treatment for a medical condition that was not related to the accident. A coordination of benefits will not generally occur if the other health insurance is an ERISA plan (e.g., most health plans in labor unions) or one issued by the state or federal government, such as Medicaid, MassHealth, Neighborhood Health Plan, Medicare, etc. These types of health plans usually require that the entire $8,000 PIP benefit is first exhausted before it will consider paying any additional benefits. In fairly common cases where a person does not have any health insurance, PIP will pay uninterrupted up to $8000.

PIP benefits are paid only for expenses or losses actually incurred within two years after the accident. In few instances, an insured will elect to pay a smaller premium by choosing a "deductible" where the PIP coverage could exclude yourself or household members. In these cases, PIP will only pay up to the difference between $8,000 and the amount of the deductible shown on the insured's Coverage Selections Page. For example, if the PIP deductible is $8,000, there is essentially no available PIP coverage. Selecting a PIP deductible is relatively rare and certainly not recommended as the risks always far outweigh the minimal savings.

PIP benefits are paid before any other benefits that may be payable under the same automobile policy, e.g., Part 6 medical payments. PIP will not pay benefits to the extent that those benefits would duplicate expenses or losses recovered by that person in a court judgment or settlement. If an injured person is also entitled to PIP benefits from another auto policy, the total benefits payable will not be more than the highest amount payable under whichever one of the policies would have paid the most ("stacking" of multiple PIP policies is not permitted). In this situation, each insurer will pay only its proportionate share. An insurer will not pay PIP benefits under one policy which duplicate PIP payments made under another auto policy.

Q. How will my lost wages be paid and can I obtain replacement services for things I can no longer do myself?

A. If an injured person is out of work because of an accident, PIP will pay lost wages up to 75% of his or her average weekly gross wage or equivalent for the year ending on the day immediately before the accident. PIP will not pay for the loss of any other type of income. If the injured person was unemployed at the time of the accident, PIP will pay up to 75% of the amount he or she actually lost in earning power (i.e., "lost earning capacity") as a result of the accident. The claims to and estimation of lost earning capacity is, however, oftentimes the subject of disharmonious dispute. It is important to be able to promptly provide your lawyer with as many pay stubs as possible and copies of tax returns that cover the preceding two years.

Some people have a wage continuation program at work and PIP will pay them only the difference between the total it would ordinarily pay and the amount of the program payments. PIP will, however, reimburse the program if it allows the benefits to be converted into cash or additional retirement credit. In instances where program benefits are reduced or used up because of payments to the person injured in an accident, PIP will pay for lost wages resulting from any other illness or injury that person has within one year of the last PIP payment. The exact amount of the PIP payments will be determined by Massachusetts law.

PIP will also provide replacement services where it will reimburse the injured person for reasonable payments made to anyone outside his or her household for necessary services that he or she would have performed without pay for the benefit of the household, had he or she not been injured. For example, an injured person may now have to pay for a taxi or food shopping service, daycare, a babysitter or yard care, whereas this was not necessary before the accident. Beware that the PIP insurer will closely scrutinize which replacement services are reasonable and necessary before making any such payments and it is therefore always prudent obtain prior written authorization from the PIP adjuster. Remember also that PIP benefits for replacement services may be somewhat limited as the maximum PIP coverage afforded is $8,000, and that the total dollar amount is usually disproportionately disbursed amongst the medical expenses (in combination with any applicable health insurance benefits), lost wages and replacement services.

Any lost wages, lost earning capacity, or replacement services not otherwise paid or reimbursed by PIP can later be asserted in the claim for damages against the legally responsible third-party as part of the bodily injury settlement or litigation.

Q. Who can take a lien against my personal injury claim?

A. Hospitals, health maintenance organizations and selected medical providers have a statutory right to assert a lien for benefits paid or charges incurred against a third party recovery, i.e., the right to be reimbursed. Most health care providers and private health insurance companies will place a lien on the bodily injury portion of the case if they do pay for medical bills resulting from an automobile accident. Massachusetts General Laws Chapter 111, §§70A-70D set forth the procedure whereby a health care provider may perfect a lien. The statute expressly provides that written notice of lien must be sent, via certified mail, return-receipt requested, to the injured party, his or her attorney, and the insurer prior to the third-party settlement. Unlike liens asserted by state and federal government assisted medical benefits programs such as Medicaid, MassHealth, Neighborhood Health Plan, and Medicare, and workers' compensation liens (see below), written notice of lien is a condition precedent to any recovery by the medical provider.

The lien attaches only to recovery from the liable third party or parties, not to first-party contractual coverage such as uninsured or underinsured motorist coverage or PIP benefits. A health maintenance organization lien can be asserted against the third party recovery without regard to the amount of PIP benefits paid. Where a lien has been properly perfected, health care providers often compromise the amount of their recovery based on the particular circumstances of a claim. The lawyer will often attempt to negotiate the lien amount during the settlement negotiation process to maximize the client's net recovery.

Under Massachusetts General Laws Chapter 152, §15, the "sum recovered [from a third party] shall be for the benefit of the [workers' compensation] insurer, unless such sum is greater than that paid for it to the employee, in which event the excess shall be retained by or paid to the employee." The issue of a workers' compensation lien arises when a person is injured arising out of and in the course of that person's employment, and liability for the injury rests with a third party other than the employer. For example, a driver injured in an automobile accident while working would be entitled to workers' compensation benefits and to file a third-party action against the responsible party. By virtue of its payment of benefits, the workers' compensation insurer has a statutory lien on the third-party party settlement.

A §15 petition for leave to settle with a third party must be first filed with either the court or the Department of Industrial Accidents ("DIA"), which will hopefully approve the proposed settlement. Approval by the court may be sought when the case is already in suit or if settlement is reached at time of trial. The DIA may approve the petition whether the case is actually in suit or a suit has not yet commenced. An actual hearing before the DIA is unnecessary in cases that typically involve less complicated injuries, such as where there has been limited or no lost time, and the petition can be submitted by mail for approval. A judge will likely require a hearing for more serious injuries to ensure that the claimant understands the terms and effect of the settlement.

The workers' compensation insurer is not obligated to reduce its lien nor does the court or DIA have authority to request a reduction. However, a reduction in these liens are generally considered in certain cases in which liability against the third party is questionable or where damages far exceed the available insurance coverage. The result of convincing an insurer to reduce its lien produces a larger net settlement for the client.

Q. What if the other car is not insured, or is stolen, or if I am the victim of a hit-and-run accident?

A. Uninsured Motorist Coverage ("U or U1") is a mandatory coverage listed as Part 3 on the standard automobile policy and is governed by Massachusetts General Laws Chapter 175, §§113C and 113L. U1 coverage can be crucial in single-car accidents, e.g., in phantom vehicle cases, for passengers who are injured in an uninsured vehicle, or for drivers and passengers not at fault when struck by an uninsured driver. Many people are not aware of this coverage until an accident occurs and this coverage is called into play, and then decide to raise their uninsured limits, unfortunately too late for the case at hand.

Despite Massachusetts laws requiring compulsory coverage, many people are injured or killed in accidents that result from the negligence of the operator of an uninsured automobile. U1 coverage is for the benefit the victims of uninsured motorists. An "uninsured" case may arise in several ways. One is when the auto causing the accident is stolen. Another is when the auto causing the accident is a hit-and-run vehicle or is unidentified to the extent that no one can determine who owns or is driving it. A hit-and-run vehicle only has to cause the accident and does not have to make actual physical contact with your automobile. For example, a vehicle may cross over the center of the road into the path of the victim's vehicle, which, to avoid an accident, then turns sharply and goes off the road into a tree, and the operator of the vehicle that crossed the road does not stop to provide identification. The seemingly most common uninsured cases, however, are those when the auto causing the accident does not have any insurance, such as (a) autos in Massachusetts that were never insured or registered at all; (b) autos in Massachusetts that were insured but the insurance was canceled for nonpayment of premium; (c) autos in Massachusetts that were insured but the insurer became insolvent; and (d) autos outside Massachusetts that never had insurance, e.g., from noncompulsory states like New Hampshire and Vermont.

A claimant who is "using" the insured's automobile must have the owner's actual consent to use it or U1 benefits may be denied, or otherwise limited such as in instances when the person thinks the owner has consented to use. Guest occupants of autos may recover U1 benefits from the policy of the auto that the guest occupied. The insurance policy provides that there must be "prompt' notice of any potential U1 claim, as well as notice to the police and insurance company within 24 hours of a hit-and-run accident, or the claim may otherwise be denied. However, the insurer must prove it was prejudiced by a lack of prompt notice in order to successfully disclaim coverage.

A claimant cannot bring a lawsuit against the insurer to litigate a disputed U1 claim as the insurance policy requires these to be decided by arbitration. Unless the parties otherwise stipulate, the arbitrator will decide both liability and damages. There must be a finding of fault against the uninsured driver for U1 to apply, and the rules regarding comparative negligence also apply. The value that the arbitrator assigns to the claim is then reduced by the amount of any PIP payments, any workers' compensation payments and any damages paid by another joint tortfeasor as a result of a first-party claim, e.g., in a dram shop case against a bar or in a collision with two autos, one of which is uninsured. The statute of limitations for filing a U1 claim is six (not three) years because it is a claim in contract, not tort. The statute of limitations typically begins to run when the insurer violates the insurance contract by refusing to arbitrate, however, an insurer can avoid the delay in time when the statute begins running by compelling arbitration itself.

Q. What if the responsible party does not have enough insurance to pay for my claim?

A. Underinsured Motorist Coverage ("U2") is an optional coverage listed as Part 12 on the standard automobile policy and is governed by Massachusetts General Laws Chapter 175, §113L. U2 coverage compensates for bodily injuries or death when the responsible party's automobile bodily injury insurance is insufficient to satisfy the value of the claim. Much of the information regarding uninsurance ("U1") applies equally to U2 and the reader should refer to the immediately preceding FAQ discussion with regard to U1 coverage, with specific reference being made to the last two paragraphs. However unlike and in addition to the deductions made in a U1 claim, the value of a U2 claim is also reduced by the amount recovered under the bodily injury ("BI") policy of the responsible owner and operator or the BI limits in the policies covering all responsible owners and operators of insured autos.

The Massachusetts legislature redefined U2 coverage in 1989 by inserting the so-called "trigger" provision, which states that the responsible party's BI limit has to be less than the non-responsible policyholder's limit of U2 coverage in order to collect. This means that there is an automatic offset to the amount of U2 coverage shown on the non-responsible policyholder's coverage selections page so that the amount actually available in any particular case is always actually less than the amount listed there. For example, if the available BI limit is $20,000 and the available U2 limit is listed as $100,000, the injured person might be entitled to collect up to $80,000 from the U2 coverage, assuming that he or she has already collected the entire $20,000 from the BI coverage in the first-party claim. The total recovery from both claims, therefore, may be up to only $100,000, not $120,000. The trigger notably applies even if the U2 limit is equal to a minimal $20,000 BI limit. Therefore, a claimant with only a $20,000 U2 limit really has no U2 coverage at all because, as illustrated in the above example, the claimant is only eligible to collect the difference between a higher U2 limit and a lower BI limit.

The trigger is the sum of all the BI insurance that is available from all potential responsible parties. Therefore, if the claimant is a passenger in a vehicle involved in a two-car collision where both drivers are at fault, the trigger is the combined BI coverage available to both drivers. For example, if both drivers have $20,000/$40,000 of BI, then the trigger is $40,000, and if the claimant has U2 of $25,000 available, the trigger will eliminate all such U2 coverage.

The automobile policy provides that in order to pursue a U2 claim, the claimant needs the permission of the U2 insurer to settle the primary BI claim(s). This will generally permit the insurer to first perform an asset search to determine whether or not the responsible party has any other available insurance policies or assets, in addition to their automobile coverage, that can potentially be reached and applied to satisfy all or a part of the remaining value of the claim. Any BI settlement made without that permission may eliminate the U2 claim altogether. This is commonly known as obtaining "consent to settle." An insurer's consent to settle may not be unreasonably withheld, and the insurer must prove prejudice if it intends to deny a U2 claim against it because the claimant did not first get the insurer's consent to settle the primary BI claim(s).

Q. Who will pay for my car rental if my automobile is being repaired, replaced, or is stolen?

A. Substitute Transportation Coverage ("rental") is an optional coverage listed as Part 10 on the standard automobile policy that provides reimbursement for renting a substitute vehicle if your automobile is involved in a collision or if there was damage or a loss that is covered by comprehensive insurance and the vehicle is being repaired or replaced. Comprehensive Coverage is an optional coverage listed as Part 9 that covers the physical damage to, or the loss of, a motor vehicle as a result of some incident other than a collision with another vehicle. Examples of such incidents include "vandalism, fire and theft, missiles, falling objects, larceny, explosion, earthquake, windstorm, hail, water, flood, malicious mischief, riot or contact with a bird or animal." If your automobile is stolen and you have rental coverage and also have comprehensive substitute transportation coverage, then the comprehensive coverage pays first, and the rental coverage pays for the balance of the rental bill.

The usual rental coverage is $15 per day up to a maximum or $450. It is, however, strongly recommended that you purchase the higher available limit of $30 per day up to a maximum of $900. Rental insurance also pays for taxi rides, bus fares and other transportation expenses if a substitute automobile is not rented, but only up to the limit of the $15/$450 or $30/$900 coverage that you purchased on your policy. Finally, if the accident was not your fault and you either do not have rental coverage under your own automobile policy or you are not fully reimbursed under your own policy for your rental bill, you may be able to seek payment of the balance of your bill under the responsible party's property damage insurance coverage.