Damage Personal Injury Case

My name is Barry Zlotowicz and I am a Personal Injury Attorney In Chicago. I often get asked by clients “can I sue the insurance company?” In this article, I will address this common question and also briefly discuss when you can in fact sue an insurance company. If you are involved in a dispute with an insurance company, call me today at 847-305-4105 for a free consultation.

Who do you sue?

Auto insurance companies can be very difficult to deal with. The insurance company has one goal – to make money. They do this by taking in as much in premium payments as they can while at the same time paying as little as they can for insurance claims.
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As such, it should be no surprise that the insurance company will nickel and dime you to every extent possible to save money. They know that the likelihood of someone filing a lawsuit against them is small – the vast majority of cases settle. Few people will file a lawsuit over a couple hundred dollars in property damage.

This often leads to serious frustration when dealing with an insurance company after an auto accident or other personal injury accident in Chicago. I have received many calls from people who ask: “can I sue the insurance company?”

The answer is….

As an Illinois injury lawyer, I’m very familiar with insurance company tactics. But generally speaking, no matter what the insurance company does, you do not sue the insurance company directly for injuries and damages suffered in an auto accident. Rather, you sue the person who hit you.

Example

Let’s say you are involved in an auto accident with a “John Smith.” Mr. Smith rear-ended you while driving on the Kennedy Expressway. Mr. Smith is insured by Geico Insurance. After the accident, you obtain Mr. Smith’s auto insurance information. You file a claim with Geico and after you finish treating you demand $25,000 to settle your case. Geico offers you only $10,000. You are not happy with the offer. What do you do?

In short, your Illinois personal injury lawyer will file a lawsuit against John Smith, not Geico Insurance. Geico has a duty to defend Mr. Smith. Therefore, once Mr. Smith is served with your lawsuit, he will call Geico and Geico will pay for a law firm to represent Mr. Smith.

When do you sue the insurance company?

The only time you will hear your Illinois injury lawyer talk about suing the insurance company is when he or she alleges that the insurance company is acting in “bad faith.” It’s a term that’s thrown around a lot by people but as applied to auto insurance claims, it is not used that often.

In short, a bad faith claim in this context usually arises when an auto accident victim files a claim against the defendant driver and there is a reasonable probability that the recovery will be in excess of the insurance policy. Despite this, the insurance company refuses to “tender” or offer the entire insurance policy to settle the case.

If your Illinois injury lawyer files a lawsuit on your behalf and you win an amount in excess of the policy amount, you may be able to file suit against the defendant’s insurance company and recover the entire amount of the verdict plus attorney’s fees and more.

If you want to read more about this topic and the standard for a bad faith claim, check out the Illinois Insurance code 215 ILCS 5/155.

Practical use of bad faith

Most of the time I have used this allegation is when an insurance company engages in significant delays in responding to a demand letter or other request for compensation. In that case, I will send a letter to the insurance company subtly suggesting they are acting inappropriately. An insurance company is usually fairly quick to respond to such a letter. However, this is normally a last resort.

Conclusion

Have a question for a Chicago area personal injury lawyer including can I sue the insurance company? Feel free to contact us today for a free consultation at 847-305-4105.

How to damage your personal injury case

We’ve unfortunately seen a few accident victims who could teach a course on “how to damage your personal injury case.” To avoid damaging your case, contact our office for a free consultation today at 312-848-9783. Or read below for a few of the common ways that accident victims damage their case.

Dishonesty

The first lesson in how to damage your personal injury case is by lying to the insurance adjuster. The truth is going to come out. The facts will be verified by the parties, an independent witness, an expert witness, or the physical evidence/property damage. As such, it’s better to be honest up front with your attorney or the insurance adjuster. It avoids being called to the carpet later.

Also, in Illinois and many other states, you can recover for your damages even if you are partially responsible for the accident under the theory of comparative negligence. It’s much better to accept 20 (or whatever) percent responsibility for the accident up front than have the insurance deny your claim entirely because you were dishonest.

Medical Treatment

Another way how to damage your personal injury case involves your medical treatment. First, often accident victims don’t immediately seek medical treatment – this is a mistake. If you didn’t get medical treatment right after the accident, it is very difficult to tie subsequent ailments to your accident.

Many people will get medical treatment after an accident but then won’t get any additional treatment (like physical therapy) for weeks or months thereafter. That results in a “gap in treatment.” Gaps in treatment are something that insurance companies utilize to diminish claims. Their argument is that something else could have caused your injuries during the gap (slip and fall/another accident/work injury). As such, it’s important to engage in a continual course of treatment after an accident.

Some people don’t follow their doctor’s instructions regarding medical treatment. The doctor instructs them to undergo physical therapy or use crutches, but they refuse. As a result, they are “non-compliant” with a doctor’s instructions. This is something that an astute insurance adjuster will point out to diminish your claim. You have a duty to take steps to minimize your injuries and failure to do so will be used against you.

Don’t “tough it out.” When you’re at your doctor’s office, tell the doctor/RN/NP about all your injuries. Do not diminish the pain you are going through. As we discussed in another blog article on documenting your injuries, if your injury is not documented in the medical records, it doesn’t exist to the insurance company. Don’t tough it out, tell them about everything you’re going through.

Social Media

Posting on Facebook or any other social media about your accident can hurt your case. I’ve discussed a situation before where I observed a client engaging in vigorous activity at a time when he was recovering from an injury. If we saw it online, so did the insurance adjuster. As such, be cautious about what you post on social media.

As an aside, whenever we sign up a new client, we check the defendants’ social media as well for information we can use against them. So social media can be a double-edged sword.

Recorded Statements/Sign Documents

Another “how to damage your personal injury case” is to give a recorded statement to the insurance adjuster and/or to sign any of the insurance company’s documents without consulting with an attorney first.

The insurance adjuster is not on your side. They want to delay, deny and diminish your claim. As such, they will use the recorded statement against you later to call into your question your credibility. Few people can tell a story the exact same way two or three times.

Also, insurance adjusters will often get you to sign a release as soon as they can. If any additional medical issues arise after you sign, you are out of luck. Also, they will get you to sign a medical release which gives them the authorization to obtain all your medical records. You should control what they see, not them.

For more information about to avoid damaging your personal injury case, contact our office for a free consultation at 312-848-9783.