AUTO SAFETY AND ACCIDENT CLAIMS
By Jim Gilbert and Rick Friedman
(Jim Gilbert and Rick Friedman are long-time friends and fellow members of the Inner Circle of Advocates, a select group comprised of 100 of the most elite plaintiffs' attorneys in the nation. Jim conducts a nationwide products liability and personal injury practice from Arvada, Colorado (http://www.thegilbertlawgroup.com), while Rick conducts a nationwide trial practice from offices in Anchorage, Alaska and Seattle, Washington (http://www.friedmanrubin.com). This article was jointly written by Jim and Rick after several conversations during which they compared notes on auto safety and experiences with accident claims.)
If you are ever injured or die in an accident, it will most likely occur while you are in a car. Yet most Americans know surprisingly little about what makes a car safe, what to look for when shopping for a car, and what to do to protect their rights if they are in an auto accident.
Legal obligations of vehicle manufacturers
· A manufacturer must sell vehicles that provide reasonable protection to occupants in most kinds of accidents.
· Federal law requires that all motor vehicles sold in the U.S. comply with specified crashworthiness and other safety standards.
· Federal safety standards are minimum standards and may not protect you in an accident.
· A manufacturer is civilly responsible for injuries caused by an uncrashworthy vehicle, whether or not the vehicle complies with federal safety standards.
· You may have a legitimate claim for damages against the manufacturer of a defective and unreasonably dangerous vehicle, even though you or others believe you were "at fault" in the accident; after all, manufacturers know when they design a vehicle that accidents will happen and that their vehicles must be reasonably crashworthy.
What to look for when buying a car
Available safety features (some are standard and some are costly options; your budget will determine your selection):
· Adaptive headlights: motors drive headlights to follow the path of the vehicle.
· Backup monitors: cameras or sensors allow driver to see and/or be warned of persons or objects when backing or parking.
· Blind spot detection: cameras and/or sound devices allow driver to see/be aware of vehicles in the blind spot.
· Bluetooth connectivity: allows hands-free cell phone use.
· Collision mitigation braking: radar or laser-activated application of brakes when sensing an imminent crash.
· Electronic stability control: computer reduces engine speed and/or provides wheel-selective braking when detecting a skid.
· Event data recorders: computer constantly monitors speed, braking etc. and preserves the info for a specific time period, usually about 30 seconds.
· Head-up display: projects vehicle monitors (speed, GPS, etc.) onto the windshield so the driver doesn't have to look downward.
· Head restraint upgrades: intended to reduce whiplash in rear-end collisions.
· Lane departure warning systems: warns driver who strays from lane.
· Night vision assist: near-infrared lights or thermographic cameras permit longer-ranged vision at night and provide higher performance in rain and snow.
· Pre-crash occupant positioning: removes slack from seatbelts and applies brakes in an imminent frontal type collision.
· Rollover sensors: deploy side airbags and activate pretensioners in an imminent rollover through a computer monitoring system.
· Seat belt energy management systems: allow controlled belt yielding in a crash, mitigating force on the occupant's chest.
· Sensitive airbag systems: sense the difference in size and weight of the occupants and deploy the air bags accordingly, thus reducing airbag injuries.
· Side door beams: reduce door intrusion into the passenger compartment in side-impact crashes.
· Side-curtain air bags: side airbags (curtains) deploy in certain types of collisions, providing enhanced head and upper-torso protection.
· Tire pressure monitoring: warns the driver of reduced air pressure in all tires.
· Collapsible pedals: pedals pivot away from the passenger cabin in a crash, thus mitigating foot and lower leg injuries.
· Seat belt pretensioner: tightens seatbelt to a specified load level when sensing a crash.
Good sources of safety information
· National Highway Safety Traffic Administration (NHTSA)
· Insurance Institute for Highway Safety (IIHS)
· Consumer Reports
NHTSA 5-star vehicle rating system
The NHTSA 5-Star Safety Ratings System evaluates the safety of passenger cars, SUVs, vans and pickup trucks in three broad areas - frontal crash, side crash, and rollover resistance. For model year 2011, NHTSA will rate 24 passenger cars, 20 sport utility vehicles, two vans and nine pickups under the new ratings system. Overall star rating will be shown on the window sticker beginning with model year 2011.
· Frontal impact Vehicle with crash test dummies in front seats is crashed into a fixed barrier at 35 mph, which is equivalent to a head-on collision between two similar vehicles of substantially the same weight each moving at 35 mph.
· Side barrier crash Standing vehicle with belted dummy in front and rear is hit in the side by a moving 3015 pound barrier to simulate an intersection crash.
· Side pole crash Vehicle angled at 75° with belted smaller dummy representing an adult female in driver's seat, is pulled sideways at 20 mph into a 25-cm diameter pole at the driver's seating position, representing a side-impact crash involving a narrow, fixed object like a utility pole or tree.
· Rollover testing An at -rest laboratory measurement that determines how "top-heavy" a vehicle is, coupled with a severe turning maneuver on a test track that tests whether a vehicle is vulnerable to tipping up on the road.
NOTE: Despite the fact that rear collisions are frequent and can cause death or severe injuries, at present there is no crash test to simulate a rear collision, due to NHTSA's limited budget
In each test using crash test dummies, the dummies have sensors positioned at various locations to measure the amount of force that would be exerted on the human body. Each vehicle tested (not all vehicles are tested each year) is given a one-star to five-star rating, with five stars being the highest. Beginning with 2011 models, an overall 5-star rating is also used. See your vehicle's ratings here.
NHTSA announced in October 2011 the lineup of model year 2012 passenger vehicles that will be tested as part of its 5-star safety ratings program. The program's crash tests will provide consumer safety information on approximately 81 percent of model year 2012 passenger vehicles sold in the United States, while rollover tests will provide information on 92 percent of the 2012 fleet.
Significance of number of stars in NHTSA's 5-star rating program
· Frontal crash
§ 5 stars = 10% or less chance of serious injury to the head or chest
§ 4 stars = 11 to 20% chance of serious injury to the head or chest
§ 3 stars = 21 to 35% chance of serious injury to the head or chest
§ 2 stars = 36 to 45% chance of serious injury to the head or chest
§ 1 star = 46% or greater chance of serious injury to the head or chest
· Side crash (incorporated with pole crash test)
§ 5 stars = 5% or less chance of serious injury
§ 4 stars = 6% to 10% chance of serious injury
§ 3 stars = 11% to 20% chance of serious injury
§ 2 stars = 21% to 25% chance of serious injury
§ 1 star = 26% or greater chance of serious injury
· Rollover (rate is expressed as a percentage of all single vehicle accidents)
§ 5 stars = rollover rate of 10% or less
§ 4 stars = rollover rate of between 10 and 19%
§ 3 stars = rollover rate of between 20 and 29%
§ 2 stars = rollover rate of between 30 and 39%
§ 1 star = rollover rate greater than 40%
What to avoid
· Vehicles that do poorly on NHTSA, IIHS or Consumer Reports testing, evaluations or ratings.
· NHTSA recommends considering vehicles with crash avoidance technologies that meet the 5-Star Safety Ratings minimum performance tests, such as forward collision warning (FCW), lane departure warning (LDW), and electronic stability control (ESC). All of the 2011 model year vehicles currently rated have ESC as standard, except for the Nissan Versa, in which it is optional.
· Vehicles that have a poor safety record in the real world (see the above websites).
Children and vehicle safety
· Every state has its own laws regarding child restraint regulations.
· You should carefully follow the recommendations of your car seat manufacturer.
NHTSA recommends as follows:
· Birth to12 months: always in an approved, rear-facing seat
· 1 to 3 years: keep in rear facing seat as long as possible until the child reaches the height or weight limits prescribed by the seat manufacturer, then in a forward-facing seat with a harness.
· 4 to 7 years: keep in a forward-facing seat with harness until the child reaches the height or weight limits prescribed by the seat manufacturer, then in a booster seat in the vehicle's back seat.
· 8 to 12 years: keep child in a booster seat until he or she is big enough to fit in a seat belt properly; the lap belt must lie snugly across the upper thighs, not the stomach; the shoulder belt should lie snug across the shoulder and chest and not cross the neck or face; your child should still ride in the back seat because it's safer there.
· Certified technicians will inspect and verify your car seat installation (free of charge in most places); click here to find the inspection station nearest you.
· Utilize NHTSA's 5-star ease of use rating system here.
Pregnant women and belt usage
· Many pregnant women rationally but wrongly believe that the lap belt part of the restraint system may damage the fetus in a forward-type collision; consequently, many pregnant women do not wear the belt at all (about 62% of the time), or wear it improperly, such as over the shoulder only or behind the back.
· Medical experts and vehicle safety groups have sponsored studies that conclude that a properly worn shoulder and lap belt clearly protects the fetus and would prevent about 85% of disabling injuries to or death of a fetus in motor vehicle crashes.
Tires and safety
· Tire wear depends on many factors, including driving style, vehicle load, air pressure (under inflation is worse), unbalanced tires, type of terrain, failure to balance and rotate tires regularly, worn shocks or struts, suspension misalignment, climatic conditions including ambient temperature, and damage caused by road hazards.
· With age, tire components dry out, hastened by oxidation, causing the adhesion between the tire components (layers) to wear out, leading to possible tread separation, often with catastrophic results.
· Experts, including some vehicle manufacturers, say that a tire should not be kept in service and may become dangerous after six years.
· Replacing and mounting tires:
§ Replace all four tires at the same time if possible.
§ When replacing only two tires, always have the new tires mounted on the rear axle, regardless of which wheels are the drive wheels.
§ If only one tire is replaced, pair it with the tire with the best tread and mount them on the rear axle.
§ Surprisingly, some tire dealers, especially smaller ones, are not aware of these safe mounting practices, so you must insist that they mount the tires as above.
What to do if you are in a car crash
· Remain at the scene and seek medical help as required.
· Notify police authorities.
· Exchange insurance and identifying information with other driver(s).
· Notify your insurance company as required by your policy.
· Preserve evidence by:
§ Taking photos of vehicles and accident scene;
§ Storing and maintaining your vehicle in its post-accident condition (further damage, loss of parts, tampering, etc. may adversely affect any future lawsuit);
§ If you are injured, seeking an experienced, qualified attorney's advice to protect your legal rights (there are variable state time limits for filing a lawsuit, so you should act promptly).
Do you have brain injury?
· Brain injuries may be "invisible" and the injured person may not immediately be aware of the injury.
· Brain injury can result even from low-impact crashes.
· Brain injury symptoms may be mild, such as fatigue, headache, poor attention or concentration, loss of balance, mood changes and the like.
· Severe symptoms may include any of the above and cognitive deficits, speech and language problems; sensory, perceptual, hearing, vision, smell and taste problems; seizures, paralysis, spasticity, personality changes and many others.
· If you or those around you notice any of the above symptoms following a car collision, tell your doctors.
Dealing with insurance companies
· You have an obligation to cooperate with your own insurance company, though they may eventually become your adversary.
· Keep in mind that your insurance company is in business to make money; every dollar paid out in claims reduces their bottom line.
· Contact your insurance company as soon as you get home from the accident. Most policies require a signed proof of loss within a certain time limit.
· Don't give a recorded or written statement to your insurance company until you review your policy and understand your coverage. If you have doubts, contact an attorney.
· Don't withhold information when you give your statement to your insurer. It's likely they will conduct their own investigation, and if it's found that you lied or left out important details it could affect the coverage you are entitled to or even invalidate your policy.
· Whenever you speak with your insurance company, take detailed notes, like:
· Name of person you spoke with.
· Their job title or position at the insurance company.
· Accident details you provided.
· What they said to you.
Keeping track of expenses and lost income related to your claim
· Missed time from work.
· Property damage to vehicle or contents
· Cost of alternative transportation
· Medical Bills
· Mileage to doctor and therapy appointments
· Services performed by family members or others on your behalf.
Contacting an Attorney
While it is possible to negotiate and settle your personal injury claim without involving an attorney, it is dangerous to do so. Remember that insurance companies are trying to offer you the very least amount of compensation they can get away with. Even if you are facing financial difficulties resulting from your car accident and feel pressured to accept a premature, inadequate settlement, do not sign any releases or waivers without first talking to an experience personal injury attorney.
