This article is an attempt to provide useful information to the consumer about his or her legal rights when caused to suffer a bodily injury through the fault of another. It is an educational tool and not intended to provide specific legal advice, but will serve as an excellent resource for those who are injured and are in need of information to begin their search for answers. The article is divided into several sections for easy reference. Please note that this particular legal field is extremely large and complex and this article cannot hope to deal with all aspects of same; however, it will be supplemented from time to time in an attempt to provide as much information as possible. The article is written in plain language rather than legal jargon in the hopes of providing useful information but should never be used as a substitute for direct legal advice from a competent attorney.

Please access any of the following sections below:

• Introduction
  
• Types of Injuries and Remedies
  
• Auto Accidents
  
• Premise Liability
  
• Product Liability
  
• Medical Malpractice
  
• Links to other legal pages by Henry J. Kroeger III
  

INTRODUCTION:

Every day there are thousands of innocent people who suffer bodily injuries which are unexpected and are caused by the fault of other individuals carelessness or recklessness. These injuries often cause the innocent party to seek medical treatment, incur medical bills, lost wages and other forms of monetary loss. When an individual suffers such a loss, he or she will most certainly have to deal with some of the largest and most powerful corporations in the United States, the insurance companies. The Insurance industries have thousands of lawyers, claims adjusters, claims investigators, accountants, lobbyists and executives at their disposal and use them effectively for one purpose, to make a profit. The insurance companies make their profits not only collecting premiums but, just as importantly, by limiting the dollar amount and number of claims paid on policies. The Insurance industry or corporations are not charitable organizations, but profit oriented and driven corporations who like any other corporations must provide profits to their shareholders. Whom can an innocent, injured party turn to for advice when confronting such a situation? The attorneys who help in these situations are personal injury lawyers. Unfortunately, lately these attorneys have been berated and ridiculed in the public press and media, however when someone truly suffers an injury which causes economic hardship the average citizens do turn to and rely upon them for advice and representation. The overwhelming majority of them are dedicated, hard working individuals who work within the given legal system. These attorneys who operate on a daily basis within the legal system, know the insurance industry and can provide an invaluable service to injured parties. If you have suffered an injury through the fault of another and have or will suffer an economic loss, you, like the insurance industry, should have the benefit of someone who knows this area of law and will work to protect your legal rights. I strongly suggest however that you consult an attorney who has extensive experience in this area and question this attorney about his or her qualifications and experience.

TYPES OF INJURIES AND REMEDIES:

Personal injury law attempts to cover all areas and types of injuries suffered by individuals. The most common areas are as follows: automobile accidents, premise liability, medical malpractice, product liability, workers' compensation, common carrier liability and assault and battery. Each area has many different sub categories which further narrow or define the specific circumstance under which the injury occurs. The law on each is vast and although the law in each follows similar patterns or principles, please note that each individual state has its own laws which apply. Therefore, this article is not intended to cover the specific law applicable in each state but rather to provide a basic understanding of the general principles at work. This author practices law in the state of Connecticut and can provide specific advice or information as to that state only, upon inquiry. I cannot offer legal advise as to other state law but can provide referrals to competent attorneys in other states for same.

The basic principles of personal injury law originated and grew out of the English system of justice as it evolved over hundreds of years. These principles were adopted by the United States system of justice and continued to grow and be modified throughout our own history. The basic goal of this law was to provide an injured party access to the courts in order to obtain a remedy for his or her economic loss when injured through the fault of another party. The basic principle behind this concept is that the innocent injured party should not be left to absorb and suffer the loss alone and that the party responsible for producing the injury should be held accountable to the victim and compensate him or her for the injuries. It is a noble idea with just goals, however it has and can be abused by attorneys and insurance companies alike. Therefore, your best protection is to educate yourself.

AUTO ACCIDENTS:

Automobile accidents are by far the most common form of injuries sustained by individuals. Since most, if not all states require automobile insurance coverage upon registration of the automobile, these cases almost always present the situation of dealing with the insurance company. The educated consumer must therefore understand the various parts of a typical auto insurance policy in order to know their rights and present their claims if necessary.

The typical auto insurance policy has several sections or parts; liability, collision, comprehensive, no fault or medical payment and under/un-insurance. Collision usually is used for claims to the property damage to your auto, regardless of fault. It is generally optional coverage. In the purchase of collision insurance be sure to include a provision for the rental of a replacement auto to operate while your auto is being repaired. Comprehensive usually applies to theft, fire, vandalism and the like. It is also usually optional coverage. Liability is what insures you personally for any bodily injuries or property damage you may cause to another when the accident is your fault. This insurance is mandatory in almost all states. Most states have minimum amounts which must be carried for liability insurance, however these limits are generally quite low, such as fifteen or twenty thousand dollars. Therefore, it is possible, if not likely, to be injured by someone with insurance and be limited to the recovery of fifteen thousand dollars. You may think that if the party does not have enough insurance, you will recover from his or her other assets, however most often those who carry the minimum insurance have no assets and your recovery becomes limited to their insurance policy. Also, the party at fault may opt to file Bankruptcy and in doing so again leave you with only his or her insurance to satisfy your claim. The only sure way to protect yourself and family members from this type situation is to understand how the uninsured and underinsured part of you auto insurance policy works.

Almost every state requires that as part of your auto insurance policy, you are offered and pay for underinsurance/un-insurance benefits. This type of insurance pays your claim when the party at fault who injures you has no auto insurance(uninsured) or does not have enough insurance to properly cover your bodily injury claims and expenses(underinsurance). This is an extremely important part of your policy which is often overlooked or not understood by those when buying their auto insurance. There are more and more people driving cars without insurance or with only the minimum policy limits and if you are injured by one of those individuals your only source of recovery will probably be your own under/un-insurance policy. It is therefore crucial that you understand how it works, what it provides and what must be done to exercise coverage. This type or part of your auto insurance policy is usually not discussed by your insurance agent as the sale of it does not produce the same degree of profits as the liability part of your insurance policy for the insurance agent or the company. I strongly advise that you consult your local attorney regarding this issue and adjust this portion of your policy accordingly. It is generally recommended that you carry underinsured/uninsured benefits on your insurance policy in the minimum amount of fifty thousand dollars.

Un-insurance benefits come into play when you sustain an injury while occupying any auto and the party at fault has no auto insurance in effect. Your uninsured benefits usually follow the person, in other words, it applies to you no matter whose auto you occupy. It is coverage personal to you and also usually covers all relatives residing within your household. It would thus provide coverage for your children, who reside with you, while they are occupants of any auto. Therefore, if your resident children are riding in an auto which is uninsured, or struck by an uninsured vehicle, the coverage would apply. It also applies and covers the passengers while in your auto if injured by an un-insured auto. You make the claim against your own insurance policy and your company, in theory, pays you as if they had insured the party responsible for your injury. Of course, since you are seeking payment from your own insurance carrier, it's position now is an adversarial one from your own. Do not be afraid to make this claim on a legitimate injury, as it is coverage you have paid premiums for, usually over the course of many years, and the insurance company will in turn sue the party who caused your injury to recover the money they paid on your claim. This eliminates the need for you to sue someone whom in all likelihood has no assets to pay your claim anyway. If you need to use or file a claim under this type of coverage, I strongly suggest that you consult with an attorney as soon as possible as there are many technical requirements which must be met to be covered and remember, your insurance company is now in a position which is adverse to your own.

Underinsured benefits operate when you are injured by someone who has a small insurance policy which is not sufficient to cover you losses. It, like the uninsured portion of your auto policy, is person oriented and therefore follows you in all autos in which you may occupy. It, like the uninsured portion, also applies to resident relatives residing within your household and likewise follows them into each auto they may occupy. It also applies to passengers within your covered autos. The most basic requirement here is that in order to trigger your underinsured benefits, you must first have exhausted the entire insurance policy or policies for the individual who was at fault for your injuries. This may require you to exhaust the entire limits of the liability portion of the insurance policy for both the driver of the at fault vehicle and the owner of the at fault auto. Again, the injury you sustain must be as a result of an auto accident. Therefore, if you settle your claim with the insurance company who represents the party at fault for less than the full policy limits, by even one penny, you cannot later seek benefits under your own underinsurance policy. Thus, the settlement of a bodily injury claim becomes somewhat more complex when considering that you may be giving up you rights to these underinsured benefits. I personally have seen many clients or examples where individuals or ignorant attorneys have settled bodily injury claims for less than the full policy limits as against the insurer for the party at fault only to be foreclosed from making any claims for further losses to their own insurance company.

A large number of states have requirements that force the insurance company to offer you no-fault or medical payment benefits on your auto insurance. These are two very different concepts, but each provides some form of direct payment to you or the medical provider for medical expenses incurred by you as a result of being injured in a auto accident. There is usually a cap, limit or ceiling for these benefits in a specific dollar amount; most states have a minimum mandatory limit that must be provided and you do have the option of purchasing higher limits. As opposed to other parts of your insurance policy, there is no consideration given as to fault in the accident; if you sustain an injury as a result of any type of auto accident, regardless of fault, the coverage applies. It applies even if the accident is your fault. It normally covers you and all resident relatives within your household and follows the person to apply to any vehicle in which they occupy. If you, or your family members within your household, do not have health insurance, this is an inexpensive form of medical insurance which applies however only to instances where the injury occurs as a result of an auto accident.

There are differences between the no-fault coverage and the medical payment coverage. No fault usually provides not only medical payment to the defined limits, but also lost wage payments to a defined limit. If no fault is available in your state, it is strongly recommended that you obtain lost wage limits in an amount of at least ten thousand. The most common hardship presented by individuals involved in an auto accident is the loss of income on a weekly basis with no immediate recourse. The insurance carrier who represents the party at fault has no legal obligation, and will in fact not, provide to you your lost wages as they accrue. It may take many months, if not years, to settle your claim with the insurance carrier for the at fault party thereby leaving you alone to cope with the loss of income and the accumulation of medical bills. If your state requires no fault insurance, request as coverage, not just the minimum mandatory amount, but an amount which you can afford such as ten or twenty thousand dollars. If your state does not require no fault, you can still purchase medical payment insurance and I would suggest an amount of at least ten thousand dollars. If you have a good medical plan or coverage, this type of auto insurance (medical payment) may not be necessary at all. Again, consult your local attorney for the option most advantageous to your situation.

PREMISE LIABILITY:

As the name implies, this type of injury occurs on a premises. It can cover a wide variety of circumstances such as: slip and falls due to improper maintenance or faulty construction, dog bites, assaults which take place on property, etc. The key element to a claim here is notice of the defect or circumstance to the owner or operator before the injury occurs. The notice of the defect can be direct( actual) or constructive(implied) in form. In fact the majority of cases present themselves not with actual notice to the owner, as it is rare to have direct evidence that the owner was given actual notice of the specific defect or circumstance. Most claims are put forth based on constructive notice. Constructive notice is a situation where the owner knew or should have known of the defect given all of the surrounding facts and circumstances. For instance, a property owner of a store or business maintains the store entrance for use by patrons, a snow or ice storm occurs and the owner fails to check the entrance for accumulation of ice and snow for several days. Although no one directly informed him of the condition, he, being aware of the snow or ice storm, should have checked or inspected the entrance for the ice or snow. The snow or ice storm itself provided constructive notice to the owner of a potential dangerous condition which he should have remedied. Thus the law places upon him the duty to inspect for a dangerous condition when given constructive notice of the condition. This principle can apply many situations from someone who slips in a store on a wet floor to someone who is beaten and robbed in a parking garage. If there exists facts or circumstances which will indicate that the owner knew or should have known of the dangerous conditions existing, then the requirement of constructive is generally satisfied.

The second key element in these situations is control of the property where the injury occurred. Sometimes the owner is not the party in control of the premises. The law holds the party in control of the property responsible for the care, maintenance and inspection of same. Thus if the owner has leased the property to a party who has control of the premises it is that party who is responsible and not the owner. The key here is who had control of the premises.

Since most premise liability cases occur without witnesses or police investigation, it is extremely important that the injured party seek legal advice immediately and begin to gather the evidence necessary to prove the claim. The Attorney must investigate and find the elements of notice and control as quickly as possible. The owner or insurance company will almost always deny responsibility in these cases and offer a variety of excuses for non payment of claims. The initial response is almost always it was not our fault or responsibility. Unfortunately, most people who suffer these types of injuries wait to consult an attorney and do so only after their injuries manifest themselves as more serious after several days or weeks; by then of course, the evidence may be lost and the case becomes very difficult to prove. The best course is to consult the attorney as quickly as possible, let him or her do their job and then if your injuries are or become minor, withdraw the claim. This is the best course and only true method to protect yourself in the event that your injury later becomes more serious in nature. Remember, the insurance companies will not operate on sympathy or speculation; they will require that you prove your case and without the proper investigation your claim will be denied. These as well as all other types of injuries are subject to time limits in which you must bring or file your claim in court. These laws are called statutes of limitations and different time limits apply to different types of claims or injuries and each in turn are subject to individual state laws. In Connecticut you have only two years to file a court action for a premise liability case or be forever barred from doing so. Other states have one or three years as limits; consult with your local attorney for the appropriate time limits or contact this office for an appropriate referral.

PRODUCT LIABILITY:

This is an extremely wide area of law and covers everything from minor food poisoning cases to airplane disasters. If any manufactured product causes an injury it may give rise to a claim. Initially, most states have laws which limit the time period a product placed on the market can be subject to a product liability claim. These are called statutes of repose and basically say that when the individual item or product has been sold more than ten years ago, the product is no longer subject to a claim for injuries. Thus if a lawn mower was sold more than ten years ago and causes an injury to someone due to a defect in it's eleventh year, the lawn mower may not be a subject to a claim. There are exceptions to this rule, for instance, when the product life is expected to last more than the ten years; however each state has different laws with respect to this therefore please consult your local attorney, or contact this office for a reference, to find out the appropriate time limits on these so-called statutes of repose. Please note that you should not confuse the statutes of repose with the statute of limitations. Statutes of limitations are generally laws which apply to all types of injuries and limit the time period you are able to bring suit after the date of your injury. In Connecticut you have three years to commence suit from the date of your injury on product liability claims. Therefore, as a general rule in Connecticut, in order to have a valid product liability claim you must commence suit within three years from date of injury and the product must have been bought or entered the stream of commerce within the last ten years; both requirements must be met.

MEDICAL MALPRACTICE:

This is truly a specialized field within the area of personal injury law. These claims generally involve claims against doctors, dentists and other health care providers who cause an injury to an individual due to the exercise of treatment or advise which falls below the normal or accepted level of care for that particular field of professional expertise. Thus it becomes absolutely necessary to find an attorney who not only understands the law in this area but also has some medical knowledge and can understand the medical terminology and standards involved. It is also almost always certain that you will need a medical doctor to review your claim and provide testimony if necessary to establish that the offending medical professional did not exercise the usual standard of care as practiced by other professionals within your community. In fact some states require that you have this independent medical opinion before you can actually institute a law suit.

The very first step in this matter is to consult with an attorney who has extensive expertise and experience in this area. The entire and complete medical file regarding your treatment must be gathered and examined. Your medical file together with your attorney's rendition of the facts is usually then given to an independent medical professional for an opinion as to whether or not a malpractice claim is established. These are extremely complex cases which normally require many, many hours of legal work. The underlying basis for a medical malpractice claim is that you sustain an injury as a result of a health care provider whose treatment and/or advise falls below the usual standard of medical care as practiced within your local medical community. In a great deal of cases it seems obvious that the advice or treatment rendered was inadequate, however it is always difficult to establish that the advice or treatment actually caused the resulting injury.

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