Personal Injury and Accident Law

Experienced Personal Injury and Accident Attorneys

Injuries can occur in countless ways: vehicle accidents (car, truck, motorcycle, bicycle, bus, ATV, boat), slip-and-fall accidents, dog bites, defective products, workplace injuries, and intentional acts by others. In every case, the injured person (or a surviving next of kin) wants to know his or her legal rights and remedies.

With over thirty years of experience in handling personal injury cases, we can provide answers to your questions about your rights and remedies, as well as what to expect in the legal process. In many cases, we may be able to settle your case without a trial, but that depends upon many factors.

For example, in vehicle accident cases, Wisconsin law creates parameters establishing responsibility for causing harm and paying for medical expenses, pain and suffering, loss of income, property damage, and many other damages — but often there are disputes within those parameters.

Although state statutes set the rules for who has the right of way in traffic situations, there also are requirements that each vehicle operator maintains a lookout and exercise reasonable care for his or her safety.

At Schmidt, Rupke, Tess-Mattner & Fox, S.C., we will carefully evaluate all of the facts of your case and provide you with a clear assessment of both the strengths and any weaknesses of your case. We will deal with insurance companies and keep you informed of the progress of your case.

For information about what to do if you are involved in a traffic accident and to learn more about injury claims in general, please continue reading below. For any additional questions or to schedule an appointment, call today.

Traffic Accidents: Answering Your Legal Questions

There is always a chance that accidents may happen. Even if the accident cannot be avoided, you need to be prepared for the steps that come after the initial accident.

What should you do after an accident?

• Stop immediately. By law, you can’t leave the scene of an accident without identifying yourself and rendering assistance. If the accident involves injury, death, or property damage of $1,000 or more to any one person’s property (or $200 for government property other than a vehicle), you must notify the police immediately.
  
• Help the injured. Make careful note of the location and call the nearest police agency. Ask for a doctor or ambulance if needed.
  
• Act promptly, but carefully. Don’t move an injured person unnecessarily. Unskilled handling can turn minor injuries into serious ones. Keep the person warm until skilled help arrives. If there is severe bleeding, try to stop it with direct pressure
  
• Warn passing traffic. Have someone alert approaching traffic to prevent further damage. Protect the victims from oncoming traffic. Keep a flashlight and flares in your vehicle for emergency use
  
• Exchange information.  If you were driving, you must give your name, address, and vehicle registration number. If asked, show your driver’s license to any other driver involved in the accident. If you damage an unattended vehicle or other property along the highway, notify the owner or leave your name and address
  
• Record information.  If police are not called to the scene of an accident, you’ll need to complete the “Driver’s Report of Accident” form. Every driver involved in such an accident must file this form within 10 days if the accident resulted in the injury or death of any person, or if it appears to result in $1,000 or more in property damage to any one person’s property. If the property belongs to the government, except government vehicles, the report must be filed if the damage appears to be $200 or more. To complete the “Driver’s Report of Accident,” you’ll need to note:
  
• Location of the accident
• Time and date of the accident
• Nature and extent of damage and injuries
• Name, address, driver’s license, and vehicle registration numbers of any other drivers involved
• Automobile insurance companies of all vehicle owners and drivers involved
• Names and addresses of witnesses, including passengers
• Locations of cars and pedestrians involved and their directions of movement, both before and after collision
• Condition of the roadway, type of weather at the time of the accident, and any other pertinent information
• Don’t admit fault at this point. The excitement of the moment may cloud your judgment and perceptions

Should you contest a traffic-related citation?

Ultimately, the decision is yours. Some questions to consider are: What are your chances of success if you do contest it? How much will it cost you? Will you lose your driving privileges? A lawyer can help you assess your situation.

If you decide to contest the citation, you’re entitled to a trial. If the case is to be resolved in municipal court, a judge will decide the matter. If the case is to be resolved in circuit court, a judge also will resolve it, unless you immediately request a jury and pay the required fee.

If you decide that you don’t want to contest the citation, and if someone else’s person or property was injured as a result of the accident, you should plead “no contest” rather than “guilty.” A no-contest plea, unlike a guilty plea, can’t be used against you later in a lawsuit.

What if you're involved in an accident and you don't have insurance?

Wisconsin drivers are now required to carry insurance. As of Nov. 1, 2011, that insurance must have minimum liability coverage limits of $10,000 for property damage, $25,000 for the injury or death of one person, and $50,000 for the injury or death of more than one person. There are limited exceptions to this requirement that do not apply to most drivers.

Drivers and owners of motor vehicles are now required to show proof of insurance at traffic stops and accident scenes if requested to do so by law enforcement. Not having insurance or not having proof of the insurance with you may lead law enforcement to issue you a citation for violation of these laws.

Being involved in an accident without insurance can also lead to the suspension of your driver’s license and vehicle license plates. If someone was hurt or killed or damage to another person’s property exceeded $1,000 and the accident report shows you may be at fault, the Wisconsin Department of Transportation (DOT) may contact you.

You will receive notice that your operating privileges and all vehicle registrations will be suspended for one year unless you:

• File proof to show you were adequately covered by motor vehicle liability insurance at the time of the accident
• Deposit a specified amount of money with the DOT as security to satisfy any possible judgments that result from the accident
• Submit evidence that you’ve settled claims with anyone who was hurt or whose property was damaged in the accident

You can request a hearing to appeal the DMV’s decision. The statutes are designed, however, to require a deposit to protect the other persons in the accident if there is any reasonable possibility that a judgment may be entered against you because of the accident.

If your driver’s license is suspended for this reason, to get your driver’s license back, in addition to posting the security required for your accident, you will need to file an SR-22 insurance certificate (or deposit $60,000) with the DOT and keep it on file with the department for three years. Obtaining SR-22 insurance is usually expensive.

Because of the difficulty of winning an appeal after the DMV has made a decision, and because of the expense of obtaining an SR-22, it often is worthwhile to consult with an attorney and obtain his or her assistance in avoiding this type of license suspension if possible. It is important to get your attorney involved early to avoid missing legal deadlines in this process.

Why should you consult an attorney before settling a damage claim?

A lawyer can help you assess whether the offer made by the other party is fair. The fairness depends on the type and seriousness of your injuries, how much you were at fault, and what would happen if the case went to trial.

Another reason you may want to consult a lawyer is to have him or her look over the papers you’ll be asked to sign upon settlement. The lawyer can assure you that you aren’t signing away any important rights.

If you're hurt in an accident, should you consult an attorney, and when?

Almost always, and as soon after the accident as you can. Your first meeting with a lawyer gives you a chance to ask about the law, the procedures, and the fees. It gives the lawyer a chance to tell you what he or she can do for you. Most lawyers don’t charge for the initial conference in a personal injury case. But if you’re concerned about cost, be sure to ask whether the first meeting is free before you set an appointment. After the first meeting, you’ll be able to make an informed decision on whether to hire a lawyer.

This is one in a series of consumer information pamphlets sponsored by the State Bar of Wisconsin. This pamphlet, which is based on Wisconsin law, is issued to inform and not to advise. No person should ever apply or interpret any law without the aid of a trained expert who knows the facts, because the facts may change the application of the law.

Personal Injury: Answering Your Legal Questions

I've been injured, now what?

If someone else is more at fault for your injury than you are, you may make a claim against that person or business and their insurance company, if any. The type of accident and the cause of the accident may affect whether you are entitled to compensation, as in the following examples:

• Motor vehicle accidents: Fault or “negligence” is determined by traffic regulations and which driver’s carelessness contributed most to the accident and injuries, including your conduct such as failure to use seat belts
• Commercial accidents (such as in stores): Injuries are compensable only if caused by an unsafe condition that the owner should have known of, appreciated, and corrected before the accident
• Home/farm/apartment/recreation injuries:  Renters, owners, or residents may be found liable for injuries they cause by negligent maintenance, oversight, or attacks by pets; however, property owners who permit others to use their land without charge for recreational purposes may be completely immune to any claim for unsafe conditions, however flagrant
• Government employees and premises: Injuries caused by negligent public employees or unsafe conditions will be compensated only in limited circumstances and are subject to stringent notice and claim requirements. State, federal, and local governments are given broad latitude to determine most matters involving public safety, including the design and maintenance of roads, parks, and facilities
• Workplace injuries: Injuries at work generally are covered by worker’s compensation benefits which compensate for medical expenses, lost wages, and permanent impairments, without regard to fault by anyone. If the accident was caused by someone other than the employer or a co-worker, a fault-based claim can be made that could include damages for pain and suffering in addition to the worker’s compensation benefits
• Intentional injuries: Injuries inflicted on purpose by any means are not usually covered by the guilty party’s liability insurance, although the responsible party may be personally liable for such harm
• Other accidents: More complicated rules determine if injuries caused by dangerous products, the accumulation of ice or snow, faulty professional services, or public utilities will be compensated. In addition, users of firearms, dog owners, and operators of restaurants, hotels, and public transportation may be liable for injuries they cause because the law imposes special responsibility for these hazards which your attorney can explain in more detail.

Which insurance policies will cover my costs?

Most automobile, homeowners, and commercial liability policies contain “medical payments” coverage for medical expenses incurred after an accident without regard to fault. This coverage in auto policies applies to insured family members and vehicle passengers, while homeowners and commercial policies cover only “others” or visitors to the premises.

Health, worker’s compensation, and disability insurance carriers or HMOs usually will pay benefits arising from accidental injuries. However, if your claim against another person succeeds, then the insurance provider will probably require you to repay these benefits to them.

If the accidental injury is primarily your fault, then only health insurance (such as through your employer), worker’s compensation, or medical payments coverage may apply.

Injuries caused by uninsured drivers are compensated by your own “uninsured motorist” coverage (if you have it) applying the same general rules as insured drivers.

Should I hire a lawyer?

If you know for certain that your injury is a minor one that will not result in time lost from work or school or substantial medical care, then you may want to settle it yourself in small claims court. (In Wisconsin, this court handles personal injury claims up to $5,000.) Of course, insurance claims adjusters generally try to settle claims inexpensively and on terms favorable to the insurer.

If you have been seriously injured or are unsure as to the outcome of your injury, then an experienced personal injury attorney should always be consulted before you give any statements or sign papers of any kind and as soon after the injury as possible. You should be able to discuss your claim and the potential fee arrangements with your attorney before you commit to legal costs.

Personal injury attorneys usually handle claims on a “contingent” or percentage basis depending on the type, difficulty, and expense of the case. Contingent fees can range from 20 percent for worker’s compensation claims to as much as 40 percent for difficult or complex cases. Contingent fee agreements must be in writing and include provisions for out-of-pocket expenses, which typically are paid by the attorney but paid back from any recovery, in addition to the fee for the attorney’s services.

How long do I have to decide?

The law requires you to settle your claim, start a lawsuit, or give special notice within limited times after the injury. The time you have to take action depends on the person or entity that caused your accidental injury. Some Wisconsin statutes of limitation and notice requirements illustrate the complexity and variety of these rules:

• Injury generally – 3 years
• Claims against city/county/school employee – 120 days
• Claims against state-employed physicians – 180 days
• Claims under a fire insurance policy – 1 year
• Worker’s compensation claim – 2 years notice to the employer, 12 years to file a claim

If you have any doubt about the statute of limitations or notice required you should consult an attorney. Other states may have shorter or more stringent limitations.

What is my claim worth?

A claim is valued and usually settled based upon an estimate of what a jury would likely regard as fair and reasonable compensation given the severity of the injury and the effects of the accident on your life, as well as the probability that a recovery against the wrongdoer is warranted. In addition to medical expenses and wage loss, you are entitled to money damages for “personal injuries,” including pain, suffering, and loss of enjoyment of life. Your attorney may point out additional damages authorized in special cases such as dog bites or flagrant misconduct.

Severe injuries requiring substantial medical treatment, extended absences from work, and permanent physical or mental impairments may command substantial compensation. Juries tend to believe that injuries that cannot be seen or demonstrated objectively are susceptible to exaggeration by the party seeking monetary damages, and insurance claim personnel tend to appreciate that fact.

When it comes time to settle a claim, both sides should have a clear “before and after” picture of the injuries and how they have affected the victim’s life. The “difference” is the value of the claim. For example, a previously healthy, productive, young worker injured severely by a culpable defendant will demand substantial compensation, especially where the victim has undergone substantial medical care and extended loss of earnings, and is facing a future of impaired earning capacity, disfigurement, pain, and suffering. On the other hand, the claim of an older person injured in questionable circumstances resulting in complaints that can be established only by the word of the claimant may be substantially discounted both by a jury and a claims adjuster.

If the injured person is found partially at fault for the accident causing the injury, then the amount of damages will be proportionately reduced; likewise, if there is a substantial chance that the claim will not succeed for any reason, then any pretrial settlement will be reduced in most instances.

How and when will my claim be settled?

If the person responsible for your injury has insurance, an insurance adjuster will gather and try to verify the necessary medical treatment records, medical expense, wage loss information, and what permanent impairments have been caused by the accident. If the insurance company makes an offer that you (and your attorney) find acceptable, then the claim process is over.

If no acceptable offer is made, then you may file a lawsuit. During the early months after a lawsuit has been filed, both sides can conduct depositions and other “discoveries” to obtain more detailed and exacting proof of the nature of the claim.

As the trial date approaches, both the claimant and the insurance company usually take a closer look at the elements of the claim and available evidence to support it and may try to settle the matter by informal discussion, mediation, or pretrial conferences with the judge. Although about 95 percent of injury claims settle before trial, one cannot know in advance which claims will require a trial before a judge or jury for resolution. Once a claim is put in suit, it typically takes 6 to 18 months to resolve.

This is one in a series of consumer information pamphlets sponsored by the State Bar of Wisconsin. This pamphlet, which is based on Wisconsin law, is issued to inform and not to advise.

No person should ever apply or interpret any law without the aid of a trained expert who knows the facts, because the facts may change the application of the law.