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Springfield Business Journal Articles
Sarah Delano Pavlik and Tom Pavlik write a monthly column on legal and business issues for the Springfield Business Journal.


Their columns will be added here each month after publication.
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01

So, you’ve just been injured in a fall or auto collision that wasn’t your fault. The dust hasn’t settled yet. You are afraid, angry, hurting, numb, confused, embarrassed, or all of the above. You aren’t your usual cool and collected self. Quite probably you are at your all-time worst decision making frame of mind, yet the decisions you make in the next few minutes will have real world consequences on your ability to hold an at fault party responsible.

Your first concern is just plain common sense: are you still in danger and is there something you can do to lessen that danger? It may be something as obvious as turning on your emergency flashers to warn approaching vehicles of the need for caution.

The second concern is your own well-being. You may be so over-stimulated by the immediate event that your body hasn’t been able to make its own needs known. Take a minute to listen to what your body is trying to tell you - it makes little sense to immediately jump out of the car and turn a displaced fracture into a compound or open fracture (one where the broken bone protrudes through the skin).

If you have sustained an injury, immediate attention may help to minimize the effect of that injury. If you sit around the house for two or three days in pain until you are absolutely desperate for medical care, you may worsen your condition and can certainly expect to hear from the defense at trial... “Now, isn’t it true, Ms. Plaintiff, that you didn’t even bother going to a doctor for three days after the accident?”

Don’t be quick to admit fault. It can take an accident reconstructionist, such as those employed by the State Police, weeks to arrive at such a conclusion. Moreover, “fault” is a legal conclusion which in many instances a motorist is not qualified to make - particularly where they may be subject to those physical and emotional effects that immediately follow a collision. Also, following a collision you may not have all of the facts to reach any conclusion.

For example, assume a collision was one where a motorist had pulled up to a stop sign at night, looked both ways, and then proceeded to cross a through street where he was hit by another car which he had never seen. That motorist, knowing his duty not only to stop but to yield to vehicles on the through street which were near enough to be a hazard, then exits his vehicle and announces to spectators that he was at fault and never saw the other car. It may well be, however, that witnesses down the block later testify that the motorist on the through street did not have his headlights illuminated or was speeding and driving recklessly. Under these circumstances a jury might well determine that the driver of the car on the through street was 100% at fault. Yet, his chance of success is severely compromised by the admissions he made at the scene before he learned exactly why he never saw the other car.

The law imposes certain duties upon a motorist at the scene of a collision involving property damage or injury in terms of notification or rendering aid. If the officer called to the scene gives you a report to fill out, complete it and send it in as instructed. It is only for statistical purposes and can never be discovered by an opposing litigant. Although you may keep a copy for your own counsel, you should never give a copy to another driver’s insurance company. Similarly, you should never give an opposing insurance company a recorded statement or fill out a document describing a collision until you have discussed this with your attorney. The law gives the parties to an injury lawsuit certain rights to discover information from the other parties or to obtain medical information pursuant to rules of the Illinois Supreme Court. The process is there for a reason.

Of course, once you have left the scene of an injury you are also dealing with your own insurance company. Under most policies an insured has a duty to notify his insurance company of a claim and to cooperate in their investigation. Occasionally a client does not choose to advise his company of an accident “clearly the other driver’s fault” and where it is believed that there were no injuries for fear his or her insurance rates will go up. I think that’s bad practice - if the other party later turns out to have a claim, your own insurance company may deny coverage due to a late notice defense.

Remember also that there are times that you and your own insurance company may have directly adverse positions. One example might be you are bringing an uninsured or underinsured motorist claim against another driver, either because the other driver had no insurance or inadequate insurance. In such an instance you should have legal counsel to represent you from day one. While you may have a duty under such coverage to provide your own carrier with a recorded statement, you are also entitled to have your attorney present for such a statement.

There are a few more things to remember concerning an injury. Perhaps the most help you can do for your cause is to contact an attorney immediately so that he or she can get a head start on the other party. Attorneys who concentrate on injury cases will generally discuss an injury without charge. Always preserve evidence, be it medical bills, casts, injury photos, or other physical evidence. Also, remember that un-followed medical advice, unfilled prescriptions for medication and skipped doctor’s appointments are all potential mines which can effectively sink a possible claim.

Accidents happen. If someone else is at fault, do yourself a favor and keep these suggestions in mind.

Posted in: November, 2017
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