When To Sue Another for an Automobile Accident In Massachusetts, you are entitled to seek damages for pain and suffering against the operator(s) of the other motor vehicle(s) involved when any one of the following criteria are met: 1. Death is caused; 2. A fractured bone is suffered; 3. Permanent and serious disfigurement is caused; 4. A "sense" is lost such as hearing, sight, taste or smell; 5. Loss of a body member is suffered; 6. Or, where your reasonable and necessary medical bills equal or exceed $2,000. (Mass. Gen. Law Chapter 231: Section 6D.) Proof of any one of the elements above typically require that you obtain your medical records from the institutions or individuals by whom you were treated as a result of the accident. Your attorney may obtain your medical records for you upon receipt of your written consent typically in the form of a Release. You may then decide with the advice and counsel of your attorney whether you should pursue your action against another party for damages. Massachusetts Claims Against the Operator of Another Motor Vehicle Generally, most civil actions in Massachusetts that involve an automobile accident are based on the allegations of negligence. Put simply, negligence is the failure of another to use due care in the operation of the motor vehicle with whom you had an accident. A claim against another, however, is based upon two facets that insurance companies will use in evaluating your claim: the issue of liability and the calculation of damages. The liability element of the claim is where an insurance carrier will assess who was at fault in the accident. While the allegations of negligence against the driver concern the liability element of the claim, there are a number of separate legal causes of action that concern the damages alleged. Typically, in cases where serious injury has resulted, a plaintiff will have claims for pain and suffering, which is defined above; negligent and/or intentional infliction of emotional distress; and loss of consortium. In order to successfully state a claim for negligent infliction of emotional, a plaintiff must show more than just the subjective experience of mental distress, grief, anger or humiliation; the plaintiff must prove through objective evidence that he or she has been harmed. In other words, the court will require the plaintiff to show that he or she sought treatment from a medical expert. Courts will not allow a plaintiff to simply appear in court and allege that he or she has experienced this type of damage. You must have received medical treatment or produce a medical expert that confirms that you have indeed suffered some type of mental anguish. To prevail on a claim for intentional infliction of emotional distress, a plaintiff must establish that the defendant intended to inflict emotional distress, or knew or should have known that emotional distress was the likely result of his conduct; that the defendant's conduct was extreme and outrageous and beyond all possible bounds of decency; that the defendant's actions were the cause of plaintiff's distress; and that the emotional distress suffered by plaintiff was severe and of such a nature that no reasonable person could be expected to endure it. This is a very difficult allegation to prove. It typically requires a showing that the defendant's operation of the vehicle at the time of the accident was either intentional or in such a reckless manner, that he or she should have known that the accident would result. A plaintiff may also have a claim for loss of consortium in instances where a family member or spouse is severely injured or dies as the result of an automobile accident. Loss of consortium may be proven in the spousal arena by showing that the relationship, both physically and emotionally, has been damaged as a result of the accident. In the familial arena, parents of a child or an adult child who is dependent on his parents for support may have a claim for loss of consortium where the child has been seriously injured against any person who is legally responsible for causing such injury. (Mass. Gen. Law c. 231, Section 85X.) Finally, a plaintiff may have a claim for wrongful death against the
operator of a motor vehicle where said person has operated his or her vehicle
negligently causing an accident which results in the death of another. This
claim must be asserted on behalf of the executor of the decedent's estate.
Typically, this claim is asserted in instances in which the defendant has
been criminally convicted of Driving Under the Influence ("DUI")
of alcohol. Once again, you will need an attorney to ensure that you have
properly asserted all the claims upon which you are entitled to recovery.
You should always seek advice and counsel of a competent attorney prior
to initiating any type of legal proceedings against another. Automobile Insurance Issues You Should Know
in Massachusetts While you are entitled to 75% of your lost wages and 100% of your medical bills, the most you can possibly collect in one accident for both lost wages and medical bills combined is a total of $8,000 in what is referred to as Personal Injury Protection or "PIP". There is also additional optional coverage available in Massachusetts called "Medical Payments" that can prove to be quite beneficial in situations where you have exhausted your policy limits. Commonly referred to as "Med Pay", it entitles you to payment of medical bills when the No-Fault limit of $8,000 is exhausted. Election of "Med Pay" provides an extra $10,000 of coverage and may prove to be a wise purchase where you have medical bills and lost wages in excess of $8,000. Uninsured Motorist Coverage is also available in Massachusetts. This will provide coverage in instances in which you may find yourself in an accident with an uninsured motorist. It will also provide coverage if you are a pedestrian victim of a "hit and run" accident. Many are often surprised at the amount of uninsured motorists on the road. This type of coverage provides a safety net for victims of drivers who fail to procure automobile liability insurance. One should be aware that many different issues may arise in different types of accidents which may preclude you from insurance coverage. For instance, depending on the facts of the case, you may be precluded from recovery when using an automobile "without the consent" of the owner, where you have failed to prove that you were "using" or "occupying" the automobile at the time of the accident or where you simply failed to report the accident in a timely fashion. Insurance policy elections can be very complicated and difficult to fully understand. In addition, a policy of insurance may be subject to different interpretations when an "accident" or "injury" has occurred. Often times, following an accident, your insurance company may dispute your interpretation of the terms of the coverage provided under the insurance policy. At this juncture, you should refer to an attorney in order to fully protect your rights in receiving what is justly yours pursuant to your policy of insurance. In these particular circumstances, your attorney may recommend that you file an action seeking what is called a "declaratory judgment". This is one way to have a court determine what you may be entitled to in insurance coverage should a dispute arise between you and your insurer. Otherwise, you may not receive what you were entitled to under the law. Limitations of Actions for Automobile Claims in Massachusetts Whenever you believe you have a claim against another for an automobile accident injury sustained, you should seek legal advice as soon as possible in order to protect you right to sue. In Massachusetts, you have three years from the date of the accident to file a complaint against the other party (ies) involved. Nevertheless, you should always seek advice at the earliest stage possible. If you do not, it may seriously jeopardize your case: your attorney needs to act quickly and preserve the evidence: memories fade, witnesses disappear, vital records and reports are lost without quick action
|