Why Hiring an Attorney Soon After an Accident Can Be Important

When a person is seriously injured in a car accident or motorcycle wreck, he/she is immediately faced with a seemingly endless list of issues and problems. Such issues and problems include obtaining medical treatment; trying to secure a vehicle to drive until his/her vehicle is repaired or replaced; negotiating with the insurance company in an effort to get his/her vehicle repaired or replaced; dealing with medical bills from numerous hospitals or clinics; dealing with a loss of income because he/she is unable to work; and worrying about the possibility of losing his/her job. It is natural to focus on these things—because they affect your day-to-day living, they are often the most pressing. The thought of hiring an attorney is often low on the list of priorities . . . but, if the accident involved serious injuries, maybe it shouldn’t be.

Why should a person involved in an accident consider hiring an attorney promptly? If an attorney is involved soon after an accident, the attorney can take steps to secure evidence important to establishing liability for the accident. Consider the following examples:

The condition of the vehicles after an accident is often one of the most compelling forms of evidence in a car accident case. Among other things, the damage to the vehicles can reflect the nature of the accident, the vehicles’ orientation at impact, and the force of the impact (which conveys how hard of an impact the occupant(s) sustained). This evidence is preserved by taking detailed photos.
The scene of the accident also typically contains important evidence. For example, the vehicles may have left skid/tire marks—or in some cases gouges—on the roadway. Such evidence is helpful when analyzing vehicle speeds, vehicle locations, or post-impact movement of the vehicles. An attorney can hire an accident reconstruction expert to preserve this evidence.
Most newer vehicles contain some type of event data recorder (“EDR”), which is sort of like the “black box” often associated with large airplanes. The EDR is often located in a vehicle’s airbag control module, but can be found in other locations, and typically records significant data in the seconds leading up to the accident. This data can include speed, change in speed, braking, and anti-lock brake activation. This data is obtained by downloading the information from the vehicle after the accident. Needless to say, this information can be critical in proving that the other driver was speeding, etc. However, this data can sometimes be lost if the vehicle continues to be driven or the key is turned in the ignition a certain number of times.
Sometimes an accident may have been inadvertently recorded by a surveillance camera on a nearby property. If an attorney is involved promptly, he/she can visit the scene in an effort to determine whether there were any surveillance cameras that may have recorded the accident and, if so, try to secure a copy of the recording.
If someone witnessed the accident, the attorney can attempt to contact the witness and secure his/her account of the accident while the incident is still fresh in the person’s mind.

In addition to preserving such evidence, an attorney can also assist with many of the other issues discussed above, including assisting with gathering medical records, medical bills, and wage loss information for submission to the insurance company and handling any negotiations with the insurance company.

In the days after an accident, the number one thing on the mind of an injured person is recovering from his/her injuries—as it should be. However, while he/she works toward a full recovery and returning to work, days and weeks will pass. During this time, evidence can be lost—vehicles can be shipped to salvage yards, skid/tire marks left on a roadway can disappear, EDR data can be lost forever, and witnesses’ memories can fade. The loss of this evidence can be devastating if the at-fault party or his/her insurance company decides to deny liability. For that reason, if you or a loved one is seriously injured or killed in an accident, consider talking with an attorney sooner rather than later.

What Do I Do After An Accident?

When someone causes a serious car accident and leaves you with major injuries, there is no guarantee that you will receive the compensation you need to cover the costs and damages that you will incur. Injuries from a car accident alone often result in thousands of dollars in medical bills, and you will typically also incur other types of damages in addition to pain and suffering, such as lost wages due to being unable to work.

What can you do after an accident to increase the likelihood of receiving fair compensation for your injuries and damages?

Gather information

If you are able to secure the at-fault driver’s information promptly after an accident, it is in your best interest to do so. The at-fault driver’s full name, address, telephone number, driver’s license number, and insurance information are critical, but there are other things you can collect as well.

Regardless of whether they are taken by you, a relative, or a friend that day, or even the next day, numerous photographs and/or videos of both vehicles and the accident scene are also important. Consider also whether a surveillance camera at a nearby business may have recorded the accident.

This type of information helps explain to the at-fault driver’s insurance company who was at fault and conveys the nature and force of the impact you sustained. This, in turn, aids in securing fair compensation for your injuries and damages.

Finally, because sometimes we forget the details surrounding an accident, take a few minutes to jot down what you can recall in the moments leading up to the accident, during the accident itself, and after the accident. Information that is good to write down includes:

Whether you were moving or parked
What lane you were in
How fast you were going
Weather conditions
What the at-fault driver did or did not do
What, if anything, the at-fault driver (or anyone else) said immediately after the accident

See a doctor

If you believe that you were injured, you should get checked out by a doctor as soon after the accident as practical. In addition to treating your injuries and getting you on the road to recovery, a doctor’s examination will document the injuries you sustained in the accident.

That examination will create a benchmark of your condition/injuries at that time, which helps document the improvement or worsening of your condition/injuries. Without such medical reports, it is challenging to prove that your injuries were, in fact, due to the accident or the nature and extent of your injuries.

Consider contacting an attorney

This may be the first time you were injured in a car accident and forced to negotiate with an insurance company. However, it is not the insurance company’s first time.

Insurance adjusters handle personal injury claims every day and are skilled at negotiating settlements favorable to the insurance company. An attorney can be extremely helpful after an accident because he/she will be familiar with the “Rules of Road” and demonstrating why the at-fault driver is liable.

An attorney will also know what compensation you are entitled to under the law (including potential future damages) and will be adept at conveying the nature and extent of your injuries/damages. An attorney’s skills and experience are important when attempting to secure a recovery that fully and fairly compensates you.

In the meantime, you can focus on what is most important—working toward recovering from your injuries.

Adverse Outcomes: When People Are Injured by Dangerous Products

Workers across the region that operate heavy machinery and equipment essential to their industries (e.g., oil and coal extraction, manufacturing, construction, etc.) and operators of tractor-trailers (18-wheelers) and other commercial vehicles expect these products to be safe. Good-faith reliance on the safety of products is also a given for homeowners when using household appliances and when using power tools, as well as farmers and ranchers that use various types of equipment. Likewise, parents across the Dakotas count on their young children being able to safely interact with their toys.

In fact, it is a bedrock principle of the American economic and legal systems that products sold to the public should not only work as advertised, but perform safely when used as intended. Unfortunately, that is not always the case. In fact, a significant number of individuals are harmed–sometimes seriously, sometimes fatally–by defective products every day. That is obviously tragic in every case, but rendered more troubling by this sad fact: such injuries routinely do not occur absent a failure by a designer, manufacturer, or seller which resulted in the product being defective such that it was unreasonably dangerous to the injured person.

The product liability realm: Different legal theories by which a manufacturer can be held liable for dangerous products.

As stated above, virtually no demographic among South Dakota, North Dakota, Wyoming and the rest of the country is spared from the dangers of defective products. However, not every product-related injury guarantees financial compensation to the injured person.

In South Dakota, there are generally two different legal theories by which a manufacturer can be held liable for a defective product that resulted in injury: strict liability or negligence.

Under strict liability, the injured person need not show “fault” or “negligence” on the part of the manufacturer. Instead, the injured person must prove the following:

That the product was in a defective condition which made it unreasonably dangerous to the injured person;
The defect existed at the time it left the manufacturer’s control;
The product was expected to and did reach the user without a substantial unforeseeable change in the condition it was in when it left the manufacturer’s control; and
The defective condition was a legal cause of the injuries.

Establishing that a product was defective often focuses on the design of the product (e.g., a problem with the calculations directing its manufacture) or the manufacture of the product (e.g., mistakes or failures in the actual building or assembly of the product).

In contrast, to recover for injuries caused by a defective product under a theory of negligence, the injured person must prove that the manufacturer failed to use the requisite amount of care in designing or manufacturing the product. This requires proving that the designer or manufacturer failed to exercise the care that a reasonably careful designer or manufacturer would use in similar circumstances to avoid exposing the user to a foreseeable risk of harm.

A manufacturer can also sometimes be liable for injuries if the manufacturer failed to provide adequate warning of an unreasonable danger associated with a foreseeable use of its product. Similar to a defective design/manufacture claim, a failure to warn claim can be maintained based upon a theory of strict liability or negligence.

Injuries caused by dangerous products can result in catastrophic injuries that yield life-upending changes for the injured person and his/her family. If you happen to be injured by a product while at work, at home, or at play, keep in mind that the manufacturer, designer, or seller may be liable for your injuries. If you believe that you were injured by a defective product, you are welcome to call the attorneys at Thomas Braun Bernard & Burke, LLP.

What Are Uninsured and Underinsured Motorist Coverage, and Why Are They Important?

If asked about the insurance policy on their car, pickup, or motorcycle, most drivers would be able to discuss their liability coverage, and many could tell you the amount of liability coverage that they have. Many drivers, however, are less familiar with two other types of coverage found in most policies – uninsured motorist coverage and underinsured motorist coverage.

Liability coverage protects you in the event that you cause an accident, such as by paying to repair the other party’s vehicle, paying for the other party’s medical expenses if he/she is injured, paying for an attorney to defend you if you are sued, etc. Uninsured motorist coverage and underinsured motorist coverage also protect you, but in a different way.

Uninsured Motorist Coverage: Generally, if you are injured by a driver that does not have insurance (i.e., an “uninsured motorist”), uninsured motorist coverage enables you to recover for your injuries/damages from your own insurance company. As an example, if the uninsured motorist coverage limit under your policy is $100,000, and you are injured by a driver that does not have insurance, you could potentially recover up to $100,000 from your insurance company depending upon the extent of your injuries/damages.

Underinsured Motorist Coverage: Generally, if you are injured by a driver that has insurance, but his/her insurance is insufficient to compensate you for your injuries/damages (i.e., an “underinsured motorist”), underinsured motorist coverage enables you to recover additional compensation for your injuries/damages from your own insurance company once you have exhausted the at-fault driver’s liability coverage. As an example, if the underinsured motorist coverage limit under your policy is $100,000, and you are injured by a driver that has only $25,000 in liability coverage, you could potentially recover an additional $75,000 from your insurance company (i.e., the difference between your underinsured motorist coverage limit of $100,000 and the at-fault driver’s liability coverage limit of $25,000). However, using this same example, if the underinsured motorist coverage limit under your policy is $50,000, you could only potentially recover an additional $25,000 (i.e., the difference between your underinsured motorist coverage limit of $50,000 and the at-fault driver’s liability coverage limit of $25,000). As before, whether you could recover an additional $25,000 would depend upon the extent of your injuries/damages.

Aside from the fact that it is legally required, liability insurance is important because it protects you, financially, in the event that you cause an accident. However, uninsured motorist coverage and underinsured motorist coverage are equally important because they may be your only source of compensation if you are injured by a driver who is uninsured, or whose insurance limits are woefully inadequate to compensate you for your medical bills, lost wages, and pain and suffering. Talk with your agent about the uninsured motorist coverage and underinsured motorist coverage available under your car, pickup, or motorcycle insurance policy, particularly the amount of coverage that you have. Making sure that you have sufficient coverage will give you peace of mind knowing that compensation will be available in the event that you are injured by an uninsured or underinsured motorist.

Crashes With Tractor-Trailers Often Result in Severe Injuries

In late January, a woman died after a tractor-trailer crossed the center line of Interstate 90 in Rapid City and collided with her SUV. The Associated Press did not include many additional details in its news article about the crash, but noted that the truck driver may be charged in relation to the incident.

Unfortunately, deaths and serious injuries are common results of crashes between tractor-trailers and passenger vehicles. Over 4,400 large trucks and buses were involved in fatal crashes in 2016, and the occupants of passenger vehicles account for eight out of every 10 people killed in crashes involving large trucks, according to the Federal Motor Carrier Safety Administration (FMCSA).

What causes tractor-trailer crashes?

Often, tractor-trailer crashes are caused by the negligence of a truck driver. It is unclear why the truck driver in Rapid City crossed the center line, but similar cases have involved truck drivers who fell asleep at the wheel, who were texting and driving or who were driving drunk. Truck drivers may also cause crashes by not completing safety checks, not properly securing their load or otherwise cutting corners on safety protocols.

However, there have also been times when the actions of other drivers have caused crashes involving tractor-trailers. This can happen when passenger vehicles linger in the large blind spots tractor-trailers have. It can also happen when a driver cuts off a tractor-trailer or gets in the path of a tractor-trailer as it is turning. Often drivers make these mistakes because they do not understand the operating limitations of these large vehicles.

Safely share the road with tractor-trailers

When you share the road with tractor-trailers, remember that tractor-trailers have large blind spots on all four sides. If you cannot see the driver’s face in the truck’s mirror, the driver probably cannot see you. In general, it is good to leave plenty of space between your vehicle and a tractor-trailer.

If you must pass a tractor-trailer, make your intentions clear by using your turn signal, pass on the driver’s side and allow plenty of space between you and the tractor-trailer before merging in front of it. Keep in mind that tractor-trailers require much more space to come to a complete stop than passenger vehicles require.

You can also anticipate that large vehicles will need extra space when completing a turn. Never get between a turning tractor-trailer and the curb, and avoid stopping in front of the stop line. These actions will help keep you out of the path of turning vehicles.

All drivers have a responsibility to safely share the road. However, crashes involving tractor-trailers can be especially dangerous, and often, drivers who are injured in this type of crash are able to seek compensation for their medical expenses.