It's a complicated world out there. We try and live our lives carefully and we try to teach our kids to be careful, but sometimes bad things still happen:

• We're driving through an intersection on a green light when we get "T-boned;"
• We're stopping for a pedestrian in a cross-walk and we get rear-ended;
• We're just walking through the park when we're attacked by a dog.

It's not our fault, but we still have medical bills, need our cars repaired, lost wages, and . . . we hurt. What can we do?

As lawyers, we see these kinds of cases every day. What can you do? Sometimes surprisingly little, sometimes a lot. Here's what we look for:

Who's really at fault?

Fault. Liability. It's really the first question in any personal injury case, and as simple as the issue may seem at first glance, it can become much more complicated. So you were driving through the intersection on a green light when you got "T-boned." Can you prove it? Did the other driver admit this to the police? Were there other witnesses? Any red light cameras? Will the other driver argue that you were partly at fault? Were your headlights on? Were you driving in excess of the speed limit? Should you have been able to see the other driver entering the intersection in time to avoid the collision? Did you make any statements at the scene to the other driver, witnesses, or police? e.g., "I was on the phone and didn't see you," "I was bent down picking something up off the floor and when I looked up and there you were," "Oh my gosh, I feel horrible, it's all my fault!" If it appears that it was entirely your fault, then it's really a case that should and will be defended by your insurance company. In that event, it's as simple as contacting your insurance company, notifying them of the facts and then simply cooperating with their defense of any claim which may be brought against you.

If, on the other hand, it was not in any way your fault, or you were only partly or "comparatively" negligent, then you will want to make a claim against the other driver for recovery of your damages.

In that case, your lawyers will want to immediately start gathering evidence, including the accident report, witness statements and, if necessary and appropriate, they may want to hire an accident reconstructionist to document the scene and later testify about their findings on liability.

What can I recover?

Once we've decided that you are or may be entitled to recover some damages from the other driver, we will first look at whether there is a source from which to recover your damages. In other words, did the other driver have liability insurance? Was the other vehicle owned by a corporation? Do you have uninsured motorist coverage on your own insurance that might cover you if the other driver was not insured. Do you have underinsured motorists coverage on your insurance that might supplement any insurance the other driver had? Were you on the job at the time so that Workers Compensation may cover some of your damages?

We also need to determine any deadlines for filing claims or lawsuits. These deadlines vary, depending on the nature of your claim and the party against whom you are making the claim. Ordinarily there is a two-year statute of limitations for negligence. In other words, you must file a lawsuit against the wrongdoer within two years from the date of the injury, otherwise, your claim may be forever barred. This statute of limitations, however, can be shortened in some cases. For example, if the defendant is a governmental agency, you may have to file a claim within 180 days from the date the claim accrues. If you were on the job at the time of your injury and you wish to file a lawsuit against the other driver, you must do so within 12 months from the date of the injury. After the first year, you will have to get permission from Workers Compensation to file that suit.

Once it has been determined: (1) that the other party is, in fact, at fault; (2) that there is a source from which you can recover your damages; and (3) the deadline for filing any claims, it's time to try and figure out your damages, i.e., what you are likely to be able to recover.

Damages are generally broken into two categories and sometimes three: property damage, bodily injury, and punitive damages.

Property Damage:

Although property damage seems like it would be the easiest element of damages to calculate, this is not always true. The first determination is who will pay for the damage to your vehicle. Will the other driver's insurance pay for it? Are you entitled to a rental car while your car is being repaired? Is your car damaged so badly that it should be declared a total loss? What if the insurance company will not declare it to be a total loss? Must you take a vehicle back that has been repaired and that may therefore have a diminished resale value? If you don't rent another vehicle because you have an extra vehicle, are you still entitled to recover money that you would otherwise have had to pay to rent a car? Were there any personal effects in your vehicle that were damaged? Can you elect to have your car repaired at a garage of your choosing or must you go to one authorized by the insurance company? Do you have a choice in having your insurance company handle the repairs, and if you are required to pay a deductible, are you entitled to recover that from the other driver's insurance?

The overly simplified answer to these questions is that you do generally have the option of having your insurance company pay for all of the repairs and seeking reimbursement of your deductible from the other driver's insurance. Because your own insurance company has certain responsibilities to you as part of its contract with you, they are generally easier to work with. The down side, of course, is you may have to wait some time to recover the deductible that you paid your own insurance company.

Bodily Injury Damages:

Although one might expect that recovering damages for "pain and suffering" might be a little more difficult, you wouldn't think recovery of your medical expenses would be very involved. Generally this is true. But remember that insurance companies make their money by accepting premiums and then paying out as little as possible on claims. Oftentimes insurance adjusters will argue that the treatment you received was neither necessary nor appropriate to your injuries. They will argue, for example, that for an injury that has been diagnosed as merely a "soft tissue" injury not involving any boney abnormalities, it's unnecessary to go to a chiropractor or physical therapy two days a week for three months. The company may even find doctors who are willing to come in and testify that the care you received was not medically necessary. The insurance company may also argue that the symptoms you've experienced are not related to the collision but are really a result of injuries from past mishaps. Again, they may bring in doctors to testify as to their opinion that your symptoms are unrelated to the accident in question.

And what about lost wages? Did you miss work as a result of the accident? The insurance company may look at your work record and history of absenteeism in arguing that your missed work is not related to the accident. Once we get through all of these hurdles, then we finally get to the measure of damages for which there is rarely any solid method of calculation: "Pain and suffering." It's at this point that lawyers can use some of their creativity to try and enhance the client's recovery. What effect did this injury have on your life? Have you been unable to care for your children or participate in their activities because of your injuries? Have you missed educational opportunities or job promotions? Have you had to forego recreational activities, hobbies, such as golf, tennis, hiking, mountain biking? Have you had to hire anyone to do personal chores that you would have otherwise done yourself, such as yard work or pool maintenance? Have you been unable to cook or clean, carry an infant child, sit at work for extended periods of time or simply sleep through the night. What have similar cases settled for? What have juries awarded other claimants with similar injuries? This is the area where recoveries can be maximized with a creative presentation of a case.

Punitive damages:

Sometimes people do things that are more than just merely negligent. In some cases, our society is so offended by them that we want to deter such conduct. In those unusual cases (and they are unusual) a court may award punitive damages. The purpose of punitive damages are to punish the wrongdoer and deter others from similar conduct. In some cases, punitive damages have been awarded against intoxicated drivers. In one such case, the court awarded punitive damages against a driver who consumed at least ten beers within a one-hour period immediately prior to the accident. At the time he was drinking these beers, the driver also took twenty milligrams of Valium and he was driving recklessly and speeding in the middle turn lane at the time of the collision. In that case, the court said that even though the driver may not have known that his conduct was so egregious that it created a substantial risk of harm to others, it was sufficient that the driver should have known the nature of his conduct. After finding that punitive damages were appropriate, the court then looked not only at the wrongdoer's conduct, but at his wealth and, in addition to the property damage and bodily injury damages, awarded punitive damages in the amount of $100,000.00.

CONCLUSION

So you've been in an accident. It's not your fault. You've already called your doctor (that's why you have one). Have you called your lawyers? Maybe you should . . . isn't that why you have them?