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Personal Injury FAQ

There is no particular time period in which to file a claim with an insurance company providing coverage for the defendant. The most important period is that any law suit must be on file within the applicable statute of limitations or it will be time-barred and cannot thereafter be brought.
However, any claims made as the result of an accident that are made to your own health insurance carrier, your employer (if you were on the job at the time) or your own homeowner's coverage for medical payments coverage, need to be made promptly or they may be lost because of contractual time limits outside the statute of limitations.
Other claims may also have notice requirements in addition to the statute of limitations. For example, a claim made against a city may statutorily require notice be given to the city within a very short time limit, or the claim is lost.
Injured parties are encouraged to consult with an attorney about making a claim, to ensure it is both accurate and timely.
Defining the statute of limitations under a particular set of facts, and for a particular person, requires detailed work by an attorney to formulate a final opinion. While there are relatively few applicable statutes of limitation, there are a number of exceptions that can change the applicable limiting period under unique facts. For example, the statute of limitations for an injured minor child is not the same as it would be for an adult under the same facts.
If you have questions about how the applicable statute of limitations is applied in your case, you must consult with an attorney and provide enough information for the attorney to work through all the various exceptions.
Negligence is defined differently for different types of cases, and different standards apply. Missouri Approved Jury Instructions, Chapter 11, sets out the various definitions.
"Negligence" means the failure to use the applicable degree of care.
When operating a vehicle on public roads, the "highest degree of care" applies, meaning the degree of care that a very careful person would use under similar circumstances. "Ordinary care" when applicable (a pedestrian for example), means the degree of care an ordinarily careful person would use under similar circumstances.
In professional liability cases, such as medical malpractice, "Negligence" instead is defined as the failure to use the degree of skill and learning that is ordinarily used under similar circumstances by members of the defendant's profession.
The applicable definition of "Negligence" varies with the facts and the type of case, and is applied in different ways. For example, "Negligence" in automobile cases and premises liability case are different, and both are different from professional liability cases.
In order to determine exactly which definition of "Negligence" would be applicable under a given set of circumstances, you should consult with an attorney and seek a formal opinion based on the details of the case.
As a general rule, damages are broken into two categories -- special damages and general damages. Special damages are those that are more easily quantifiable -- lost wages, medical bills, future medical treatment, etc.
General damages are less easy to quantify, and include pain and suffering, loss of enjoyment of life -- damages of a more personal nature.
In all cases except medical malpractice, the jury simply awards both special and general damages grouped together in a single amount on the verdict form. In medical malpractice cases, the verdict form requires the jury to break down the damages down into both economic damages and non-economic damages, and to further break both categories down into both past and future damages.
Yes. Missouri is a comparative fault state. Missouri law recognizes that more than one person, and more than one factor, may contribute to cause an incident. The jury is instructed to compare the fault of all contributors to an incident, and determine what percentage each contributed.
Within limitations on how those percentages are applied (the subject of joint & several liability rule is a separate subject), the general rule is that the jury determines the total damages arising from the incident. Each person contributing to cause the incident is then held responsible for the percentage of the total damages that person contributed to cause -- as determined by the jury.
Even if the jury determines that you were partially at fault, you can still collect (again, within limitations) the percentage of your damages caused by other people.
For example, if the jury determines you suffered $60,000 in damages, and that you were 25% at fault, your award would be reduced by 25% and the defendant remains responsible for the remaining 75%, or $45,000.
Of course, each case is different based on unique facts. To understand exactly how comparative fault works in Missouri (and how joint & several liability is applied), you should consult with an experienced personal injury attorney.
To a degree, the current answer is "Yes".
The issue of caps on non-economic damages in medical malpractice cases in Missouri has been the subject of on-going legislation and litigation for years. At one point, the Supreme Court ruled such caps as unconstitutional, but caps were reinstated by the legislature in a new form a few years ago.
Most recently, the common law lawsuit for medical malpractice was replaced by the legislature with a strictly statutory cause of action that caps the recovery for non-economic damages. This legislation is new, and all of the effects of this legislative change will take time for the Courts to interpret fully.
The caps set out in Chapter 538, RSMo. are different for "catastrophic" injuries, "non-catastrophic" injuries, and wrongful death arising from medical malpractice. The amount of the cap increases at the rate of 1.7% per year, and the cap applicable to any given year is published by the Missouri Division of Insurance.
To know which cap might apply, the year to which it applies, and how economic damages are calculated, you should consult with an experienced personal injury attorney.
In the most general terms, filing a claim after a personal injury involves notice to the appropriate insurance companies of the incident, medical treatment to determine the extent of the injuries (and whether they are permanent), determination of whether the injuries will effect vocational or other pursuits, and presentation of all the materials to the applicable insurance carrier or defendant (such as a corporation).
Different cases will have unique liability or damage facts that may alter the claim process significantly. Injured parties are encouraged to talk with an attorney before taking any action, because execution of various documents during the claim process, if not fully understood, can adversely impact resolution of the claim.
If the claim is not resolved, the only remaining option is to file suit within the statute of limitations, and present the claim to a jury at trial.
For the most part (there are exceptions), you cannot bring a lawsuit against your employer for work related injuries, and instead are limited to making a claim under the Workers Compensation Laws. Chapter 287, RSMo. gives (for the most part), exclusive jurisdiction over work related injuries to the Division of Workers Compensation.
Exceptions do exist. If the facts surrounding your employment, or the injury, result in it being excluded by Chapter 287, then the Courts have jurisdiction to hear a lawsuit.
In addition, if a work related injury is the result of third party negligence or a defective product, the Courts may have jurisdiction over those lawsuits as well.
While the Missouri Workers Compensation Law was set up so that not every injured worker needed an attorney, any injured worker should at least consult with an attorney to make sure that, because of unique facts or circumstances, an attorney is not required.
Even then, many injured workers choose to hire an attorney to process their Workers Compensation claim to simplify the process and try to maximize the resulting award.
Injuries caused by a defective condition in real estate owned by a municipality may have some unique aspects.
In general terms, filing a claim after an injury accident involves notice to the appropriate insurance companies of the accident, medical treatment to determine the extent of the injuries (and whether they are permanent), determination of whether the injuries will effect vocational or other pursuits, and presentation of all the materials to the applicable insurance carrier.
In addition, some municipalities are statutorily entitled to a specific written notice of the injury. The idea is to put municipalities on notice of a defective condition so they can repair defects and prevent anyone else from being injured. These notice periods are often very, very short and, if notice is not given in compliance with the statute, the claim may be lost.
Statutory municipal notice provisions do not alter the statute of limitations if notice is timely given, but may bar the case if timely notice is not provided in compliance with any applicable statute.
Of course, every case will have unique liability or damage facts that may alter the claim process significantly. Injured parties are always encouraged to talk with an attorney before taking any action, because execution of various documents during the claim process, if not fully understood, can adversely impact resolution of the claim.
Statutory notice to a municipality is a good example of such an issue, so injured parties are encouraged to seek legal counsel sooner rather than later -- simply to make sure any applicable notice period is met.
While a common question, the answer simply is that each case is different and there is no way to evaluate any claim without complete information.
Liability of the parties, and comparative fault issues, must be considered. The extent of medical treatment and whether the injuries are permanent must be evaluated. Whether the injuries will affect future work capacity, or require future medical treatments, must also be considered. Even the trends of jury verdicts in different jurisdictions must be considered.
Only when all the information is gathered can the case be evaluated.
In the end, if the claim cannot be settled and litigation is required, the jury determines what the case is worth based on the evidence presented at trial.
Missouri follows the American Rule, which (absent statutory or contractual exception) requires all parties to pay their expenses of litigation.
For example, fees must be paid to the Court to file a law suit. When witnesses are deposed to find out what they know about the claim, fees must be paid to court reporters to preserve and transcribe the testimony. Medical records and governmental reports require payment of fees, and some research facilities require fee payments.
In personal injury cases, the medical testimony of the doctors may be outlined by their records, but the details have to be presented by live, or deposition, testimony. Medical testing also requires payment of fees. Depositions of doctors and other medical professionals are extremely expensive.
Finally, liability experts, accident or forensic reconstruction experts, damage experts (such as vocational experts or economists), are all expensive as well.
Generally, the defendant's insurance company does not have to pay your medical bills until the insured defendant is found legally liable to you -- meaning after a trial. That said, occasionally the defendant's insurance company will pay your medical bills, but it is a fairly uncommon occurrence.
Instead, you can have all your medical bills paid by your health insurance or, if the injury occurs at work, your employer’s Workers Compensation coverage may pay for your medical treatment.
Generally, Missouri does not allow insurance companies to have a right of reimbursement (or subrogation) in personal injury cases. However, there are a number of exceptions, including Medicare, Medicaid, military health benefits, and some (not all) group health insurance plans qualified under the federal E.R.I.S.A. statutes. Each case will be different.
While this is a common question, there is no good answer. Every case is different.
First, no reasonable effort to resolve a case for legitimate value can be made until the injured person has reached maximum medical improvement, and all their damages (including permanent injuries) can be evaluated and understood.
Second, production of a complete demand, evaluation by the carrier, and the pre-litigation negotiation process take time.
Third, and perhaps most importantly, there is no requirement that the insurance carrier for the negligent defendant settle with anyone in Missouri. Payment by a third-party insurance carrier is not mandatory until its insured defendant has been found legally liable to make payment after trial.
While many cases will settle by agreement, the insurance carrier (or the negligent defendant in some instances) can demand a trial before payment is mandatory.
The entire process can be complex, and injured people are encouraged to consult with an attorney about the process -- and consider hiring counsel to prosecute the claim instead of doing it themselves. If a pre-litigation claim is not managed with future litigation as a consideration, mistakes by individuals in the claim process can adversely affect an attorney's effectiveness in any later litigation.
Missouri ethics rules do authorize contingency fees for some types of cases, but not all. As a general rule, contingency fees cannot be charged in criminal defense cases, or in most domestic relations cases.
Generally speaking, in personal injury cases attorneys can agree to work on the case without charging on-going hourly attorneys’ fees. Instead, the fees are paid on a percentage basis from any recovery made at the end of the case.
In other words, if the attorney agrees to work on a contingency fee basis, and does not obtain a recovery for the client, no attorneys’ fees will be owed at the end of the case.
This is a standard question in every personal injury case, and the answer will always be different in every case.
Questions of liability and comparative fault can have a profound effect on the value of a case.
The past and future economic damages are another important issue, and the degree to which these damages can be proven to the satisfaction of a jury have an effect as well.
The venue in which a trial will be held also has a profound effect on the value of a case. Each jurisdiction has a different pool of potential jurors, some of whom may be more conservative than others when it comes to valuing a case.
Finally, the cost to present a case to a jury is another important issue, given that Missouri generally requires each litigant to pay their own case expenses (called the American Rule). For that reason, consideration must be given to the cost of paying for liability or damage experts. Further, the testimony or depositions of doctors often are extremely expensive.
The cost to present all those expensive witnesses at trial can be avoided in the event of a settlement.
In the end, only once an experienced attorney has complete information about the case can the attorney assess the general value of the case, the likelihood of a positive outcome in front of a jury, the risk of a negative outcome in front of a jury, and the expense of presenting a case to the jury -- and advise you if an offered insurance settlement is reasonable or not.
It is possible, but there is no way to know without consulting with an attorney. Attorneys may be able to find details that establish a claim that you did not know about, or may know of exceptions that eliminate a claim you thought you had.
Keep in mind that one of the related issues is the economic viability of any claim you may have. The litigation process is time consuming and expensive, and Missouri has adopted the American Rule -- meaning that lacking a specific statute or contract provision providing otherwise, everyone has to pay their own litigation expenses and attorneys’ fees (in contingency fee cases those are paid at the end of the case).
Sometimes injured people to find that, while they have a claim against a negligent party, the claim is not economically viable because it will cost more to prosecute the claim than the amount expected to be recovered. Again, consultation with an attorney is necessary to ensure that any claim is economically viable.
Unfortunately, this is an impossible question to answer without additional information.
Defining the statute of limitations under any particular set of facts, for a particular person, requires detailed work by an attorney to formulate a final opinion. The statute of limitations for assault is not the same as for a motor vehicle collision. The statute of limitations for medical malpractice is not the same as for a premises liability claim.
Additionally, while there are relatively few applicable statutes of limitation, there are a number of exceptions that can change the applicable limiting period under unique facts. For example, the statute of limitations for an injured minor child is not the same as it would be for an adult under the same facts.
If you have questions about how the applicable statute of limitations is applied in your case, you must consult with an attorney and provide enough information for the attorney to work through all the various exceptions.
In Missouri, a wrongful death action is a statutory action only. It may not be brought by the estate of the deceased person, and it exists solely for the benefit of the statutory class members (relatives) who are authorized to bring the claim. The damages are predominantly, although not entirely, limited to the economic losses suffered by the statutory class members as the result of the death of the decedent.
Once the amount of total damages have been set in the first half of a wrongful death case, the second half of the case involves apportioning the damages among the various members of the class based on the loss suffered by each.
Wrongful death cases have unique legal and factual features that personal injury cases do not. Anyone who has suffered the death of a relative through the negligence of another person is encouraged to consult with an attorney to learn the details of how wrongful death claims work, whether a wrongful death claim exists under those circumstances, and who is entitled to bring the claim.
If you (or any member of the statutory class of claimants) have suffered the death of a relative through a hit & run motor vehicle collision in which the identity of negligent driver is unknown, it is possible that a viable wrongful death claim may still exist.
If your deceased relative carried Uninsured Motorist coverage under their own motor vehicle insurance policies, the likelihood is that the statutory class members may bring a claim against the Uninsured Motorist carrier. Missouri generally recognizes that, subject to policy terms, a so called hit & run "phantom vehicle" will be often included within the definition of an Uninsured Motorist.
Anyone who has suffered the death of a relative through the negligence of a hit & run "phantom vehicle" is encouraged to consult with an attorney to learn the details of how wrongful death claims work, how Uninsured Motorist coverage works under the applicable policies, whether a wrongful death claim exists under those circumstances, and who is entitled to bring the claim.

FAQs are presented by Williams, Robinson, Rigler & Buschjost, PC as a public information service only.  None of the information contained herein is intended to be taken as legal advice.  Each matter depends on unique facts which attorneys must consider in forming an opinion, and may depend on laws unique to a particular jurisdiction.  No two cases are the same.  If you want to know more about this subject, contact Williams, Robinson, Rigler & Buschjost, PC, or the attorney of your choice, and seek a formal opinion about your particular case.

  
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