EXPLANATION OF A CLAIM VS. A LAWSUIT
When a personal injury occurs because another person was irresponsible or negligent, you have the option of filing a claim with his/her insurance company on your own, or you may consult with an attorney and file a lawsuit against the other party, whether it be an individual, group, or company/business.
About filing an insurance claim
If you are hurt, as the injured party you may file a personal injury claim as soon as the incident occurs. The claim is between you and the at-fault entity’s insurance company. Typically, the insurance claims process is a series of negotiations between you /your attorney and the insurance company’s claims adjuster. You will be asked to present information about your injuries from your Doctor(s), which include prognosis. A skilled injury attorney knows what information to provide and how to provide it to support your claim.
If you file a claim and do not use an attorney, you hope the negotiations process will conclude with a fair settlement payment to you /your loved one. It is important to note, the Claims Adjuster is tasked with working toward distributing as little compensation as possible to the injured party. Thus, the process is typically long and detailed. They do not make it easy for you. As an injured party, if your injuries are small or minor then the claim is small or minor and most likely a lawsuit is not necessary. But, if the injuries are more serious, or the insurance company is giving you the runaround and trying to avoid paying your legitimate claim (an action known as Bad Faith), then it is best to consult with an injury attorney and see if your claim should be a lawsuit.
About filing a personal injury lawsuit
A failure to agree may occur because the claims adjuster denies their insured was at fault or doesn’t agree with the severity of the injuries and/or the amount of the compensation you are demanding. When the negotiations between the injured party and the insurance company’s claims adjuster break down and an agreement upon what is a fair settlement can’t be reached, it is time for the injured party to utilize an injury attorney to file a lawsuit. It is also best to consult with an attorney if the injuries are extensive, and it is clear the injured person will require long-term care, and/or that their quality of life may be affected.
The first step will be for your attorney to send a letter of representation to the insurance company notifying them of your claim. The letter also indicates that all future communications from them concerning your claim should now be directed to your attorney, not to you – the injured party. This is the first phase – the claim phase. Your attorney will find out how much insurance coverage is available and will submit what is known as a “demand package” to the insurance company. The demand package will outline how the accident happened, the nature of your injuries, and will request a specific amount of money damages, as well as other appropriate compensation. The insurance company is allotted a specific amount of time to evaluate your claim and demand package and draft a response to your attorney with a monetary settlement offer. If the insurance company misses the deadline or if the offer doesn’t meet your needs as the claimant then, a lawsuit may be filed.
In fact, technically, an injured party can file a lawsuit anytime, starting from the first day of the accident. As mentioned, for minor accidents, a lawsuit is not practical, because the time and money invested in the process will exceed the final settlement. It’s only practical to consider a lawsuit if/when negotiations with the insurance company’s claims adjuster fail (including those via arbitration and/or mediation) and a fair resolution for all those concerned isn’t possible. Your attorney will help you determine if you or your loved one has suffered “threshold injuries”. It is these types of injuries that make a lawsuit warranted.
Threshold Injuries are very serious injuries. To fall in this category, an injury must have caused significant damage, and either be permanent or limit a person’s ability to do normal, daily activities for a specific period of time. Many states use what’s referred to as the “Threshold Injury Doctrine.” Although the various states define threshold injuries differently, some are common to all. They are:
- Significant disfigurement or scarring
- Loss or significant limitation of a body organ or limb
- Any medically verified/certified injury that has become a temporary or permanent barrier to usual or customary functioning for 90+ days.Make the decision to file a lawsuit carefully. You don’t want to file suit, then have it summarily dismissed. And, make note of the Oklahoma Statute of Limitations: Personal Injury: 2 years
- Regardless, it’s always a smart investment of time and energy to make a call and schedule an appointment to consult with an attorney specializing in this area of law. Get an expert opinion before you finalize a claim on your own.
- Medical Malpractice: 2 years, Products Liability: 2 years.