Hawaii Auto Accident Attorney:
Auto Accidents- Leading Cause of Injury In The United States:
The most common type of personal injury claim in Hawaii involves two (or more) automobiles colliding on a Hawaii roadway. In Hawaii, auto accidents injure and kill more people each year than any other cause of injury or death. Behind these statistics is a harsh and unfortunate reality: an auto accident victim and his or her family must not only deal with the physical and emotional pain resulting from the injuries sustained in an auto accident, they must also take on the added burden of arranging for the payment of medical expenses, managing wage loss, and dealing with other financial consequences related to the accident.
Auto Accident Victim's Rights:
If you or a loved one has been injured in an automobile accident in Hawaii, it is important to understand your legal rights under Hawaii law as soon as possible. For example, did you know that an accident victim is not required to provide a statement, or otherwise communicate, with the insurance company of the driver at fault for the victim's injuries? However, if an auto accident victim is making a claim for benefits such as PIP under their own auto insurance policy they will be required to provide a statement and discuss the claim with their own auto insurance company.
"Third Party Accident Claims - At-Fault Driver's Insurance:
In an auto accident, there may be two different insurance companies involved -the at-fault driver's policy and the injured victim's policy. The personal injury claim against the at-fault driver is commonly referred to as a third party claim.
“Third party” refers to the at-fault driver. A third party claim thus involves the at-fault driver's insurance company. The at-fault driver's insurance company will be responsible for insuring the at-fault driver for his or her negligence in causing the accident.
Damages In A Third Party Claim:
If a victim is successful in a personal injury claim, he or she may be entitled to certain "damages" that will be made part of a settlement. Damages available to an injured auto accident victim in a successful personal injury claim may include but not be limited to:
- Medical Expenses – Past and Future
- Wage Loss – Past and Future
- Loss of Earning Capacity
- Pain and Suffering
- Emotional Distress
- Loss of Enjoyment of Life
- Loss of Consortium
- Cosmetic Disfigurement
Proving A Hawaii Personal Injury Claim:
The damages listed above can only be obtained if the injured victim can prove that the third party was negligent in causing the accident and the damages exceed any relevant monetary threshold(s). To prove a negligence case in Hawaii, the following four elements must be proven by a “preponderance of the evidence”: (1) Duty; (2) Breach of Duty; (3) Causation; and (4) Damages.
Duty- Follow Rules of The Road:
Under Hawaii law, a driver has the duty to follow the rules of the road. Thus, the duty element in an automobile accident case is usually an uncontested issue in an auto accident case.
Breach of Duty:
However, the second element of a Hawaii negligence case - breach of duty - can be difficult to prove in automobile accident claims where there is a dispute about the facts of the accident. A breach of duty can also be described as a failure by the driver to carry out his or her duty to follow the rules of the road. Breach of duty can be proven by an admission by the third party, witness statements and/or through the testimony of an accident reconstruction expert or engineer. A breach of duty includes actions of the third party such as running of a red light or stop sign or by failing to yield the right-of-way to the injured victim.
The causation element can also be utilized by the third party's insurance company to reduce the amount of the settlement if the injured victim had a pre-existing injury to the same part of the body injured in the accident. If a lawsuit is filed, the attorney representing the at-fault driver (appointed by his or her insurance company) will have the right to conduct a medical examination of the injured party to determine whether the automobile accident actually caused the injuries and whether the medical treatment was reasonable and necessary for the type of injuries sustained.
Damages are the financial penalties assessed against the at-fault driver for causing the auto accident. Damages are proven through testimony from the victim, his or her medical providers, as well as other experts retained to testify about the financial harm caused by the accident.
Third Party Claim Settlement:
A third party automobile accident claim may settle through: (1) A negotiated settlement; (2) Court-mandated arbitration; (3) Mediation; or (4) Trial. A settlement may also be reached after the appeal of a trial verdict.
Unfortunately, it is impossible to determine when an insurance company will be willing to settle an auto accident claim at a fair value. A number of different factors will be employed by the insurance adjuster when he or she evaluates a claim. Among such factors include, but are not limited to: the nature and extent of the injuries, the policy limits available, the claim reserves, whether or not the victim has an attorney, and the relevant experience of the attorney if the victim has retained counsel. In some cases, it can take years to reach a third party settlement.
First Party Claim:
A first party automobile accident claim involves, essentially, three types of claims: (1) Personal Injury Protection, commonly referred to as PIP; and (2) Uninsured Motorist, commonly referred to as UM and (3) Underinsured Motorist, commonly referred to as UIM.
Personal Injury Protection- PIP Claim:
Personal Injury Protection, or PIP, is a required automobile insurance coverage under Hawaii law. It provides for the payment of medical expenses up to the limit of the coverage without regard to who was at fault in the accident.
It is important to note that the at-fault driver's insurance policy will not pay a victim's medical expenses until a final settlement is reached. In most cases, the settlement with the at-fault driver's insurance company will not occur until such time as the injured victim completes medical treatment and damages can be accurately calculated. Unfortunately, most medical providers will not wait for the settlement with the at-fault party to receive payment for medical treatment.
In order to pay medical expenses prior to reaching a settlement with the at-fault driver's insurance company, the victim's personal injury protection (PIP) benefits may be utilized. PIP limits are usually $10,000 but can be purchased at any amount. In a recent case, a Foster Law Offices client maintained PIP limits of $100,000 which proved to be invaluable to the case. A PIP claim is filed with the victim or vehicle owner's insurance policy as soon as possible after the accident.
The PIP carrier maintains a lien (right to repayment by victim) on the third party settlement. This means that the medical expenses paid by PIP must be repaid to the PIP carrier with the funds received from the at-fault driver's insurance company. In Hawaii, the third party settlement can be negotiated in such a way as to avoid payment of the PIP lien.
Accidents Involving Uninsured Drivers- UM Claim:
Like PIP coverage, Uninsured Motorist, or UM, is a coverage available in a Hawaii automobile insurance policy. However, unlike PIP, Hawaii law does not require that drivers purchase UM coverage.
UM insures drivers and passengers against the risk of being injured by a negligent and uninsured driver. In Hawaii, as in most states, there are many here who drive without auto insurance even though it is required by law.
A UM claim is very similar to a third party claim. However, the UM insurance company “steps into the shoes” of the uninsured driver and may assert any objections and/or defenses available to the uninsured driver.
By stepping into the shoes of the uninsured driver, the UM insurance company may argue that the uninsured driver was not at fault for the accident or may contest injuries, medical treatment and any other aspect of the UM claim. UM claims are as contentious as third party claims in terms of the insurance company's dealings with the victim.
Likewise, the injured victim may claim the same damages with his or her own insurance company under as the victim could have made with the uninsured driver's insurance company. If the UM insurance company refuses to pay fair value for the UM claim, the victim may be forced to initiate arbitration or legal proceedings in order to compel his or her insurance company to comply with Hawaii law.
In certain UM policies, there is a binding arbitration provision. This means that before a lawsuit can be filed against the UM insurance company, the injured victim must participate in an arbitration. An arbitration is a hearing in which both sides present evidence to an attorney or other individual who serves as arbitrator. The arbitrator will make a decision about the UM claim based on the evidence presented. The arbitration provision can be found in the subject auto insurance policy in the UM section.
Because UM claims are defended as vigorously as third party claims, it is important to retain an experienced attorney who can properly advise you of your legal rights under your auto policy and successfully prosecute the UM claim to a fair and just settlement.
Undersinsured Drivers- UIM Claim:
An Underinsured Motorist, or UIM, claim is also a first party claim in that it is coverage contained in the injured victim's own auto insurance policy. In Hawaii, drivers are only required to maintain auto insurance policy limits of $20,000. Anyone who has suffered serious injuries in an auto accident knows that a victim's medical expenses alone can quickly exceed $20,000.
Like UM, UIM is not a required coverage in the State of Hawaii. Drivers may reject UIM coverage when purchasing their auto policy. However, if a person who has been seriously injured in an auto accident maintains UIM coverage, then he or she will have an extra layer of insurance policy limits to access as part of their personal injury claim.
Here's an example of how a UIM claim works:
Jane Doe is involved in a serious auto accident where she suffers life threatening injuries. Ms. Doe is forced to spend a month in the hospital and incurs $100,000 in medical expenses alone. The driver responsible for the accident maintains only $50,000 in auto insurance coverage and has no assets. Luckily, Ms. Doe purchased a UIM policy of $200,000. Therefore, Jane Doe has $250,000 in policy limits instead of being limited to the driver's policy limits of $50,000.
In order to be eligible for a UIM settlement, you must have UIM coverage. Your personal injury attorney must also obtain the consent of your UIM insurance company before entering into a third party settlement with the at-fault driver's insurance company. If no consent is obtained, you may lose the ability to obtain a UIM settlement.
Retaining a personal injury attorney experienced in UIM claims is important. There are several pitfalls in a UIM claim and there are also leverage points that may be utilized in order to ensure that the UIM insurance company is complying with its duties under the auto insurance policy (for which the victim pays substantial monthly premiums) as well as under Hawaii law.
If an insurance company fails to comply with Hawaii law, the insurance company may face a claim for violating the (inherent) good faith obligations required as part the insurance contract. In both UM and UIM claims, the insurance company must act in “good faith”. If it fails to do so, the UM/UIM claimant may make a claim for “bad faith” against the insurance company. Bad faith claims are difficult to prove and brought infrequently by personal injury attorneys. However, Foster Law Offices attorneys are ready, willing, and able to bring forth bad faith claims against insurance companies who violate Hawaii law.
Excess Coverage Claim:
In catastrophic injury cases, an umbrella or excess coverage claim may be necessary if its available. An Excess Coverage Claim involves a policy that is essentially connected to a standard automobile insurance policy. The Excess Coverage policy provides an additional insurance policy if the Third Party Claim and First Party Claim are insufficient to compensate the injured victim's damages. Most Excess Coverage policies come with limits of $1,000,000 or more.
Subrogation and Negotiation For Net:
After settlements are reached with the at-fault driver (third party settlement); the UM/UIM insurance carrier; and any Excess Coverage carrier, the victim may be legally required to pay a portion of the settlement to an insurance company or a government agency who paid medical bills or other benefits related to the accident. Repayments may be required to a(n): (1) Auto insurance company; (2) Health insurance company; (3) Medicare; (4) Medicaid; (5) Medical providers who have liens on the settlement.
The legal right for a company or the government to be repaid out of the settlement is called subrogation.
Subrogation is an insurance company's legal right to be repaid for medical expenses, lost wages, and other sums paid to or on behalf of an injured victim. In most insurance policies, there is fine print stating that the insurer has a “right of subrogation” against any future settlements related to the auto accident for which the insurer paid the victim's expenses.
For example, if a health insurance company pays $50,000 in medical expenses related to an automobile accident, the health insurance company has the right to receive a $50,000 reimbursement from the proceeds of the settlement with the at-fault driver's insurance company and/or any UM/UIM settlements reached with the victim's own insurance company.
If a personal injury attorney merely pays the subrogation without negotiation, the injured victim receives less money in his or her pocket. At Foster Law Offices, we believe in “negotiating for net.” This means that we will attempt to negotiate subrogation with insurance companies in order to reduce the subrogation and put more of the “net” in the pocket of the client.
In a recent case, a Hawaii insurance company initially claimed a subrogation interest of over $40,000 in our client's settlements. After a lengthy negotiation, the insurance company agreed to accept less than $3,500 as full and final repayment. This saved the client over $35,000 in subrogation payments to the health insurer which meant that much more went into her wallet.
Foster Law Offices offers a free consultation to those who have suffered serious injuries in Hawaii automobile accident cases. To contact our firm, please either complete the "Contact our Firm" box to the right or call/text our office at (808) 348-7800. We look forward to speaking with you.