Automobile Accidents: Protecting Your Rights To Maximize Your Recovery

by Attorney Ronald M Papell

Being involved in an automobile accident is potentially a serious event that can, of course, involve damage to property and more importantly personal injuries to the occupants of the vehicles. While most accidents are avoidable, some aren’t. Getting rear-ended while stopped at a traffic light can hardly be prevented. Perhaps most important is that you be prepared to comply with the law and protect your legal rights should you have an accident.

Some advance planning can be most helpful and make the unpleasant experience a little less stressful. You are required by law to have your registration and insurance information available at all times while operating a motor vehicle. You should also make sure that you have a paper and pen stored in your glove box. These items should be kept in an envelope marked “In Case of Emergency” in the event you are unable to communicate with authorities or first responders after an accident.  You may wish to include the name and cell phone number of your next of kin or close friends who can provide valuable information or possibly consent when you are unable to.  Should you need treatment a list of medication to which you are allergic would also be a good idea. Of course, the name and telephone number of your primary care provider or physician will allow access to your medical history which could be invaluable where serious injuries are involved. You should also keep a warning triangle, flares or similar device in your trunk. A first aid kit and a bottle of water as well as a blanket can also be of great comfort should you need them.

While paper and pencil can be replaced by the notepad on your cell phone, the most important item to protect your rights and insure that evidence present at the scene is preserved is a camera.  As virtually all cell phones have excellent cameras built in, the item most people always have within reach is also the most valuable instrument in case of an accident.  The camera can be a very important piece of equipment should there be an issue of who was in what lane or who was travelling on what street. Believe it or not, some people will claim that you, not they, had the stop sign! A photograph showing the position of the vehicles after the accident can be invaluable in establishing who was at fault. Of course, the camera can also be used to photograph the driver’s license and insurance information of the other parties involved as well as the license plates of all vehicles.  Should the other driver leave the scene without exchanging information as required by law, a photograph of that person’s license plate will allow investigating officers to locate and potentially press charges against the hit and run motorist.  The identification of the adverse driver will also be important should you need to pursue a claim against the other driver and their insurance company.

While it may seem obvious, the pictures you take can make a difference and taking too many pictures will never hamper your ability to recover for your injuries and damages while taking photos that do not capture all of the necessary evidence at the scene can make a difference in whether you prevail on your claim.  The most important pictures are those taken immediately after the accident which show the position of the vehicles at their point of rest (POR) when the vehicles have come to a stop and have not been moved.  Be sure to take these photos from several angles and various distances.  Taking close up photographs of the vehicles might be helpful for demonstrating damage to the vehicles but of little value in establishing how the accident happened or in what lanes of travel the vehicles were situated after the accident which may support your version of how the accident happened.  Similarly, skid marks, scrape marks or the location of debris at the scene can often make the difference where the other driver denies responsibility.  Unfortunately, denials of responsibility occur frequently even in the most clear liability cases and often after the vehicles have left the scene of the accident.  Even those drivers who apologize at the scene often “come up” with a self serving version of how the accident occurred.  This fabricated version often materializes after the other driver has met with his insurance company representatives or the attorneys the insurance company hires to defend them should a lawsuit be filed.  

After The Accident

Once an accident occurs you should try to remain calm. Jumping out of your car to engage the other driver may result in further injuries to you by passing vehicles. If the accident is not serious you should try to pull your vehicle to the curb or side of the road or freeway where it will be safer to get out of your car.  As mentioned above, taking pictures before the vehicles have been moved is always a good idea but should only be done when it is safe to do so.  Even a picture taken of the other vehicles from within your car may be valuable and should be attempted where possible.

Always turn on your emergency flashers to warn other motorists of your vehicle being stopped. This is especially true on freeways where other motorists may not realize that your vehicle is stopped and may assume that you are moving.  Raising the hood of your car is also helpful in alerting other motorists that an accident has occurred and that they should proceed with caution.

The law requires that you must stop at the scene of an accident even if you believe that no one was hurt. Your failure to do so may constitute hit and run for which you could be charged with a crime. You must also exchange information with the other party even if you feel that they are at fault. While many people remember to get the other drivers name, address, telephone number and drivers license, often they forget to get the license plate number of the other car and its make and model. As insurance coverage on the vehicle is normally the primary coverage, it is important that you obtain this information. Likewise, you should obtain the names, addresses, dates of birth and license numbers, if any, of passengers in the other vehicle. As mentioned above, a snapshot taken with your cell phone will capture this valuable information in an instant.

Witnesses often stop to render assistance. You should always get their names addresses and telephone numbers as well as their driver’s license number should they agree to provide it. Witness can often be the deciding factor in determining responsibility for the accident. Unfortunately, even honest people can sometimes revise their statements made at the scene after speaking with their family or insurance company. Independent witnesses are often critical in arriving at the truth and you should ask them to remain at the scene until the police arrive. Should the witness refuse to stay, take down or photograph the license number of their vehicle as the authorities or an attorney will be able to locate them at a later date.

While you are required to notify the police or CHP should there be injuries, the unfortunate reality is that the police will often not respond unless the injuries are more than superficial. Financial realities have resulted in police departments refusing to come to the scene of accidents or prepare reports. They will frequently ask if the vehicles are blocking traffic or otherwise creating a danger to other motorists. Needless to say, the failure of police to come to the scene only enforces the need for you to record the evidence at the scene as stated above.. Should the accident occur on a freeway, the California Highway Patrol has jurisdiction and will normally come to the scene because of the danger of people walking around trying to gather information near vehicles traveling at freeway speeds. Should you get out of your car on the freeway, walk to a place a safe distance from your vehicle lest another car collide with your stopped automobile. Never stand near, behind or in front of your car as you are courting disaster!

Assuming an officer doesn’t come to the scene, your insurance company may require that you report the accident to the police department on an approved form within 24 hours of the accident. Should the other driver not have insurance coverage, this report will be required if you are injured and wish to pursue a claim under the uninsured motorist coverage of your policy. While insurance coverage is required on all vehicles, many people continue to drive without coverage. If you should be seriously injured you will find that you cannot recover for any pain and suffering that you might experience if your vehicle was not insured at the time of the accident. Should the police not come to the scene, it may be helpful to draw a small diagram of the accident, noting the presence and approximate length of skid marks, the location of any crosswalks or stop signs or other landmarks. If the accident happens at night, make a note of any street lighting nearby and its approximate distance from the point of impact. Of course, should there be any unusual conditions on the roadway, rain, foreign substance, etc…be sure to note that as well.

If the other driver or their passengers are injured you are required to provide reasonable assistance including calling an ambulance or providing first aid if you are able to do so. If necessary you may be required to take injured persons to a hospital or doctor. Should the other person be seriously injured, it is usually advisable that you not try to move them as you may cause further injury.

Should officers arrive at the scene, answer their questions truthfully but don’t volunteer information unless the authorities ask for specific responses. You may feel it appropriate to accept responsibility for the accident only to find out later that the other driver was more to blame than you were. If you feel that you are clearly responsible and want to resolve the matter without involving insurance companies, you should probably not sign anything without speaking with an attorney. If there is an issue of driving under the influence you must cooperate with the investigating officers in performing sobriety tests or providing of samples of blood, urine or breath. Should you refuse to do so you may face the loss of your driving privilege.

Even if the police do not come to the scene, you may be required to report the accident to your insurance company or face a denial of coverage at a later date. Likewise, should the accident result in damage to either vehicle in excess of $750 or in injuries or death, you must report the accident to the DMV or face the possible suspension of your driving privilege. The report to the DMV must be made on their SR-1 form.

If you feel that you are injured, it is always advisable that you be checked by a physician as soon as possible. This is a good idea even if you have no intention of making a claim. Should your injuries be significant, it may be advisable that you speak to an attorney before making any

statements under oath to your insurance company. You should never speak with the other party’s insurance company unless you are certain that nobody was hurt and that the accident was your fault. Giving a statement to the other parties insurance company may result in your being held responsible for the accident when you were not legally at fault. With the high cost of insurance coverage, being charged with causing an accident can often result in higher insurance premiums.

Remember, obtaining as much information at the scene of the accident is imperative to protect your rights whether you intend to pursue a claim or not.  While you may not feel the need to employ the services of an attorney, it is important to remember that some injuries which at first seem minor may develop into more serious and disabling injuries later.  Some spinal cord injuries and joint injuries are not apparent at first but worsen with time and may require surgery or extensive treatment.  As attorneys who represent injured parties do not charge their client’s up front but instead handle claims on a “contingency fee” it is always advisable to seek the advice of a lawyer before making a decision that you might later regret.  A contingency fee means the lawyer will only charge a fee after the recovery is obtained and will not charge a fee at all if no recovery results regardless of how much time they put in.  

It is recommended that you call our office to discuss your claim before you speak to the insurance company.  Yours or theirs!