The Difference Between a Settlement and a Lawsuit

The time after an accident can be very confusing. You have to decide what to do next regarding your expenses and damages. According to principles of tort law, if an injury is caused due to another party’s negligence, you are entitled to compensation for the damages suffered as a result of that negligence. Accident victims have a choice between settling a case or pursuing a lawsuit against whomever is responsible for injuries. Understanding how this process works in personal injury cases can help in making the best decision for your case.

Retaining Legal Help

It is always best to gain the help and advice of a lawyer as early in your personal injury case as possible. This means that you should call an attorney promptly after a car accident or other incident from which you sustain injuries. By talking to a lawyer early in the process, you can learn more about your legal rights and how to gain the compensation you need for costs incurred and damages suffered.

Having an injury lawyer on your side early also helps to prevent you from making any mistakes that may negatively affect your case. Examples of such mistakes include making statements to the defendant that can later be used against you. Personal injury lawyers are highly experienced in personal injury claims that include:

Auto accidents
Slip and falls
Premises liability
Defective products
Medical malpractice
Other personal injury cases

Filing a Claim

The victim must often file a claim against the defendant’s insurance provider. If injuries were sustained due to an auto accident, the defendant’s auto insurance policy will be involved. When the case is because of an accident on the defendant’s property, the homeowner’s or property insurance company will be involved. For other types of accidents, commercial insurance carriers may be party to the case.

Personal injury attorneys assist the victim throughout the case, including for filing of the claim. The lawyer may also help the victim prepare a statement about the accident and advises the victim of things they should not do, such as allowing an insurance company to record a statement from them without the lawyer being present.

Stages of Claims

Claims go through case stages after an accident, which may include some or all of the following:

— Investigation
The insurance company of the negligent party will conduct an investigation after a claim is filed against them. This investigation will determine who or what caused the accident, where responsibility lies and if the victim is responsible in any way.

The victim’s attorney may also conduct their own investigation to compile evidence to back up the claims of the victim. This investigation may include taking photos of the scene of the accident and documenting injuries suffered by the victim.

— Negotiation
After the investigation, the victim’s lawyer will likely negotiate with the insurance company and/or the defendant.

— Demand Letter
A demand letter is often sent by the personal injury lawyer to specify why the victim is entitled to compensation after the accident. This written notice will provide details of the accident and the victim’s injuries. A specific valuation of the damages may be specified in the letter.

— Counter Offer
Demand letter amounts are rarely accepted by insurance companies without a counter offer. When the insurance company provides a counter offer, the victim’s lawyer will help the victim decide if that amount should be accepted, negotiated further or rejected.

— Settlement
If the victim and the insurance company come to an agreement regarding claim value, the case may be settled out of court. The victim will likely have to sign an agreement stating that he or she will not make any further claims against the defendant or their insurance company. Settlement money can then be exchanged.

— Filing a Lawsuit
When negotiation fails to bring all parties to an agreement, the victim has the right to sue. Filing a lawsuit starts the litigation process with a complaint filed with the court by the plaintiff’s attorney on his or her behalf. This complaint specifies who the parties in the case are, the victim’s residential address, jurisdiction of the court and legal basis for claim recovery.

A filed lawsuit makes a request for damages in a specific dollar amount. A sheriff, private process server or other mechanism recognized by rules of civil procedure in the state then serves the defendant with the complaint. A specified time period is provided for the defendant to respond. If the defendant does not respond before the deadline, a default judgment is made. Each jurisdiction provides its own time period for a default judgment, with the most common time period being thirty days.

Filing a lawsuit does not automatically send a case to a jury trial. The defendant can still opt to settle the case with an acceptable settlement offer. If the parties come to an agreement, the case is removed from the court docket. Cases are dismissed for other reasons, such as:

Case is without legal basis for recovery
A judge’s summary judgment is made based on state law

If you have been the victim of an accident or personal injury due to someone else’s negligence, you should seek the advice of a personal injury lawyer. An attorney can advise you regarding options in your case and whether it may be best for you to settle the claim with the insurance company or pursue litigation based upon the circumstances of your particular case.

Dos and Don’ts of an Accident Claim in Arizona

What to Do After a Phoenix Accident

Have you been injured in an accident that you believe someone else caused? Arizona law may entitle you to compensation for the suffered losses.

Though one of your first priorities should — of course — be to contact a Phoenix accident law firm for professional guidance on how to proceed with your claims, there are a number of “dos and don’ts” of which you may not be fully aware.

Let’s take a look.

Do…

Do Seek Timely and Adequate Medical Treatment

Your health is the top priority in the wake of an accident. Seek timely and adequate medical treatment. If you believe that you may have suffered an injury, then you should go to a healthcare facility and have the injury evaluated and potentially treated.

It’s worth noting that the failure to secure timely and adequate medical treatment could have legal ramifications, too. Defendants in Arizona can minimize their liability by claiming that the injured plaintiff was also at-fault. Delayed treatment for a truck or motorcycle accident, for example, could lead to an assertion of contributory fault. This means that the defendant will almost certainly argue that your injuries were caused or exacerbated by the delay, thus making you responsible for the harm (and minimizing their damages liability).

Do Secure Timely Legal Assistance

It’s critical that you secure the assistance of a qualified attorney as soon as is practicable under the circumstances — an experienced Phoenix accident attorney is an invaluable ally at every stage of the personal injury lawsuit, from the initial factual investigation to the nuances of a courtroom hearing.

Attorney assistance is often useful in ways that may not be immediately perceived by the client. For example, your personal injury attorney will serve as a communication middleman between you and the relevant insurer. During such communications, your attorney will not only be able to prevent the disclosure of sensitive information that could undermine your claims, but may also be able to apply significant pressure and secure a favorable result before the case develops further.

Timely legal assistance is critical. The general statute of limitations for personal injury claims in Arizona is just two years from the date of injury. Failure to bring an action before the deadline passes could lead to an automatic dismissal of your claims, preventing a full and adequate recovery.

Do Take Steps to Preserve Evidence and Identify Relevant Parties

If you are not in need of emergency medical care following an accident, you can take steps to preserve evidence and improve your likelihood of success in litigation. For example, if you are in a car accident, then it’s possible that the design of the roadway contributed to the accident in a way that could lead to an independent claim for damages against the City. Take photos of the roadway, signage, and environmental hazards before the City steps in and makes any changes. These photos could be introduced as evidence to support your claims.

You’ll also want to identify relevant parties: potential defendants and eyewitnesses. Record their contact information so that you can get in touch with them when necessary (as the case progresses). If you are unable to do so, all is not lost — your attorney will just have to take additional steps to identify and contact the appropriate parties.

Don’t…

Do Not Leave the Accident Scene Prematurely

Unless you have suffered grievous injuries that require instant medical assistance (i.e., you have to go to the hospital immediately for emergency medical care), then you should not prematurely “escape” a serious accident scene until you have had a chance to speak to authorities. Leaving an accident scene prematurely could not only expose you to criminal charges, but could also weaken your eventual case against the defendant (as the jury is likely to assume that you were somehow at fault for the accident, as evidenced by your premature escape from the accident scene).

Do Not Communicate Extensively With Insurers

Insurance companies have interests that are in opposition to your own — and yes, that includes your own insurer as well. If you find yourself in communications with an insurance company before you have consulted an attorney, make sure to reveal as little as necessary to end the conversation. Do not provide a statement (regarding the accident). Let them know that law enforcement are investigating the accident and that you cannot provide any further information. It is not your responsibility to speak to an insurer and negotiate with them on your own — that is the responsibility of your attorney. If you speak to an insurer on your own, they will attempt to manipulate you into making disclosures about certain aspects of the accident that they will subsequently use to de-value or even deny your subsequent claims.

Do Not Exaggerate Injuries

Exaggerating your injuries is not a good idea. Defendants (and insurers) typically use investigators who will take a number of steps to monitor your condition — monitoring your social media pages, following you around town, etc. — and if they discover behavior that is inconsistent with your claimed injuries, it could significantly undercut your case. Further, when you bring an action in personal injury, you must be able to support your assertion of damages with sufficient evidence (documentary/record evidence and expert testimony, for example). If you exaggerate your injuries, the evidentiary record will not match the claimed impairments and asserted damages, thus creating a disconnect that could create serious doubt about your overall case.

Contact Hirsch & Lyon for Comprehensive Legal Assistance After an Arizona Accident

Here at Hirsch & Lyon, our attorneys have decades of experience working with injured plaintiffs in Arizona in a variety of disputes, from car accidents to product defect-related accidents, and more.

Since our founding, we have helped plaintiffs secure favorable results that compensate them for their losses, whether through a negotiated settlement or aggressive trial litigation. We are committed to practical, results-oriented representation — unlike many of our competitors, we have experience handling cases all the way through to trial, giving us a significant advantage in pressuring defendants at an early stage.

Ready to speak to a seasoned Phoenix accident attorney about your injury claims?

Call us at 602-598-4786 or complete an online intake form on our website to setup a consultation with a member of our team today. Consultation is free, confidential, and comes with no obligation to continue (if you decide against pursuing compensation). During the initial consultation, we will evaluate your claims and identify potential next steps.

Road Debris and Hazards Must Be Fixed to Protect Motorists

Motor vehicle accidents are often caused — in whole or in part — by the presence of unexpected road debris and various other roadway hazards. In the state of Arizona, for example, the Department of Transportation estimates that road debris alone is responsible for 1,000 crashes on an annual basis. Accidents from dangerous road conditions can be particularly disastrous, as drivers may not be prepared for

If you have been involved in an accident that was caused by road debris or some other roadway hazard, then you may be entitled to damages, as it the existence of the dangerous condition may be indicative of another’s negligence. You’ll therefore want to get in touch with a Phoenix injury lawyer as soon as possible for an evaluation of your car accident claims and how best to proceed with litigation.

Though the existence of a roadway hazard may not always be the fault of another party, there are many cases in which the negligence of the defendant — typically the possessor of a particular roadway (i.e., the government, or some private entity) — has contributed to the hazard at-issue. If the defendant fails to correct the hazard or fails to warn motorists of the existence of the hazard so that it can be avoided, then liability may attach under prevailing Arizona law.

Roadways Must Be Maintained in a Reasonably Safe Condition

Claims arising out of injuries sustained due to road debris (or other roadway hazards) generally come under the umbrella of premises liability. Premises liability claims in Arizona are rather similar to those found in other jurisdictions throughout the country. Stated simply, you will be entitled to recover damages if you can show that the defendant — the person or entity who is in control of a particular property, which may include a roadway — failed to maintain the roadway in a reasonably safe condition for motorists.

Once a hazard is known (or should be known to the defendant), then they have a responsibility to correct it. The hazard can be corrected in two ways: 1) the defendant can repair the hazard or remove the debris at-issue, or 2) the defendant can put up signs warnings motorists about the impending hazard so that it can be avoided.

For example, suppose that there is a large pothole in one of the lanes of a busy public highway. After the government discovers the hazard, they have a duty to correct it and minimize its danger. Perhaps they do not have the immediate resources to fill in the pothole. They must instead setup a perimeter around the pothole and create signs warning motorists about the presence of the hazard.

It’s worth noting that the defendant may attempt to avoid liability by arguing that they were not aware of the hazard at-issue, and that they were therefore not required to correct the hazard or warn motorists of its existence. This is not necessarily a winning argument for the defendant, however, if they “should have known” about the hazard given the circumstances. Generally speaking, those who are responsible for roadways have a duty to inspect those roadways for dangerous conditions that could expose motorists to an unreasonable risk of injury. Failure to inspect and discover a condition does not shield the defendant from liability.

Hazards Must Be Non-Obvious or Unavoidable

In Arizona, defendants cannot be held liable for injuries caused by hazards that were obvious or avoidable — they can only be held liable for hazards that were concealed in some way such that reasonably prudent motorists would not have discovered the hazard before it was too late to avoid it.

For example, if you are driving and you notice (from a distance) that a fallen tree is covering half a lane on the roadway, you cannot slam into the tree and then obtain damages from the City for your injuries. Unless the collision was fundamentally unavoidable, the fact that you became aware of the hazard well in advance means that you had a responsibility to exert reasonable efforts to avoid the hazard.

Contact an Experienced Phoenix Injury Lawyer for Assistance With Your Claims

If you have suffered injuries in a motor vehicle accident involving road debris or some other hazard on the roadway, then you may have the right to sue and recover damages pursuant to Arizona premises liability law.

Here at Hirsch & Lyon, our personal injury attorneys have decades of experience litigating claims on behalf of the injured, including motorists who encountered unexpected road hazards. We are committed to client-oriented legal representation — we make ourselves available to clients 24/7, offer discounted contingency fees, and encourage a level of transparency in the attorney-client relationship that many other firms fail to achieve. This approach is advantageous for everyone involved. You can have any questions or concerns addressed quickly, and we can better understand your litigation goals.

Call 602-535-1900 to schedule a free consultation with an experienced Phoenix injury lawyer here at Hirsch & Lyon.

What is the Difference Between a Mistake and Negligence in Arizona?

In a motor vehicle accident — or any other personal injury scenario, for that matter — it can be rather difficult for the injured victim to determine whether the defendant simply made an understandable mistake, or whether the defendant acted negligently, thus exposing them to potential damages liability. In fact, this uncertainty often discourages injury victims from bringing a lawsuit against the defendant and thereby securing damages to compensate them for their various injuries.

If you have been injured due to the conduct of another person (or entity), and you believe that the defendant’s conduct violated the standard of care — given the circumstances — then you may be entitled to compensation for your injuries. Injury claims often seem simple upon first impression. In reality, however, your injury lawsuit can be complicated by a number of issues, such as the presence of multiple hostile defendants, evidentiary challenges, and more. Make sure to consult with an experienced Arizona personal injury attorney for assistance.

If simple mistakes do not give rise to liability (except in product defect litigation, and other limited circumstances), and negligence does, wherein lies the difference between these two concepts? At what point does a mistake “become” negligence and grant the injured party a right to sue and recover damages?

The answer to these difficult questions is embedded in the concept of “standard of care,” so let’s consider some of the fundamentals of the standard of care and how negligent conduct is borne from the violation of applicable standards.

Violation of the Standard of Care

In Arizona, as in other states, individuals and entities owe others a duty to exercise reasonable care given the circumstances. This is a basic principle of tort law. Failure to act in accordance with one’s duty of care will constitute a violation of the standard of care (applicable to the situation) and give rise to negligence liability. To sum it up: a mistake gives rise to negligence when the mistake violates the standard of care.

As this legal terminology can be somewhat confusing, it’s best clarified with an example.

Imagine that you have been injured in a motor vehicle accident. You were a pedestrian crossing the street at a legal, marked crosswalk, when the defendant collided with you, thus causing you to suffer significant injuries. Now, suppose that the defendant-driver argues that they did not see you while rounding the curve that opened up into the crosswalk, as there were uncut plants that were obscuring their vision as they made the turn. Given the circumstances, one could argue that the driver did not actually violate their standard of care (if they were otherwise driving in a safe manner). On the other hand, you might be entitled to sue the property owner whose plants obscured the roadway.

The standard of care is fundamentally circumstantial. In other words, it can change depending on the nature of the situation. For example, the standard of care that applies to a professional truck driver who is driving for work-purposes may be higher than the standard of care that applies to a normal driver.

A number of different factors can influence the standard of care: the defendant’s age, experiences, training, and physical/mental capacity, the obviousness of the danger, the suddenness of the danger, the activity in which the defendant and plaintiff were involved, any regulations relating to the activity, and more.

In some cases, violation of a rule may give rise to “negligence per se.” Essentially, the defendant’s violation of a rule may automatically give rise to an assumption of negligence. As the plaintiff, you need only show that their negligence then caused your injuries. For example, if the defendant-driver was violating some traffic rule when they collided with you, then you will not have to show that they were acting negligently, but only that their negligent act (i.e., violating the traffic rule) contributed to your injuries.

Wrongful Death Claims – The Basics

The goal of any personal injury lawsuit is to obtain compensation for the plaintiff — a monetary award or settlement — so that he or she is “made whole” for the damages caused by the injuries. Usually the plaintiff is the injured person, so the damages are those directly suffered by the plaintiff – for example, medical expenses paid by the injured person, pain and suffering endured by the injured person and income lost by the injured person.

But what happens if the injured person dies because of the accident caused by the defendant’s negligence or misconduct? In the absence of the injured person, who can file a lawsuit and for what damages?

A claim for wrongful death is the law’s answer to this problem. It allows the deceased victim’s estate and his or her family members to bring a lawsuit for the decedent’s damages AND the damages suffered by the family. Contact a skilled Phoenix injury lawyer if you need help with your case.

Who can claim damages?

In Arizona, wrongful death claims can be brought by the deceased victim’s surviving spouse, children or parents, and by an executor or personal representative on behalf of the victim’s estate.

What damages are recoverable?

Wrongful death damages can be thought of as falling into 2 categories. The first category compensates the decedent’s estate for the damages the victim suffered, including:

Funeral/burial expenses;
Medical expenses incurred prior to death;
Income lost prior to death;
Lost future income (based on the idea that the victim would have accumulated more assets and left a larger estate if he or she had survived);
Property damaged in the incident causing his or her death (if the incident were a car accident, for example, the damaged property would be a vehicle); and
Pain and suffering endured before death.

The second category compensates family members for the damages THEY suffer from the victim’s untimely death, including:

The lost value of household services the victim performed;
The loss of care, companionship, and guidance; and
Pain and suffering (grief, sorrow, shock).

If the family members paid for all or some of the victim’s expenses arising from the accident (medical bills, funeral expenses), claims for those damages would be brought by the family members, not the estate.

What about punitive damages?

Punitive damages are designed to punish the defendant for particularly egregious actions and to deter others from committing similar misconduct. They can be awarded in a wrongful death case without regard to the economic damages claimed by the plaintiffs, but the standard for obtaining punitive damages under Arizona law is strict.

As a general rule, the defendant’s conduct must be outrageous and reckless to support a claim for punitive damages. In other words, the defendant’s behavior must be worse than mere carelessness or inattention. Actions that seem more conscious or intentional are more likely to meet the test for punitive damages — like driving a car when you know the brakes are defective or repeatedly driving when severely intoxicated.

Are there caps or limits on damages?

Some states have laws that place limits or caps on the damages a plaintiff can receive in a personal injury lawsuit, but Article 2, Section 31 of the Arizona Constitution provides that no such law is permitted in Arizona.

If a family member has died because of a car, truck or motorcycle accident in Phoenix or elsewhere in the state, an injury lawyer at Hirsch & Lyon can help you get the compensation you deserve. Call any of our offices to schedule a free consultation.

-Personal Injury