Frequently Asked Questions
In many cases, it is very difficult for people to afford a lawyer because they charge clients several hundred dollars per hour to represent them. At Warnock MacKinlay Law, we make it possible for anyone to afford an attorney if they have been injured in an accident because we work under what is called a Contingency Fee Agreement. With this type of agreement, you do not have to pay attorney’s fees until we recover money for you. Attorney’s fees and advanced costs related to pursuing your claim are deducted from the settlement or judgment we obtain on your behalf upon the resolution of your case.
In cases that do not require the filing of a lawsuit, if our attorney’s fees exceed our client’s recovery, we will reduce our attorney’s fees so that we do not recover more than the client.
In Arizona, among other things, you may be entitled to compensation for past and future medical expenses, past and future lost income, pain and suffering, loss of enjoyment of life, permanent disability, scarring, mental and emotional distress, and/or property damage.
Generally, the statute of limitations for most personal injury claims is two years. This means that you have two years from the time the accident occurred to file a claim against the responsible party. If you wait longer than two years, you waive your right to obtaining any compensation for your claim. If you have a claim against a public entity (government), you must make a claim within 180 days from the date of the accident or your rights are waived.
It is almost impossible to determine how much time it will take to resolve your case because every case is different. Cases that settle prior to filing a lawsuit typically resolve more quickly than those that go to trial. At Warnock MacKinlay Law, we will do everything we can to obtain the maximum compensation possible in the shortest amount of time. A typical timeframe for cases to settle is two to four months after your medical care is complete, but those dates can be shorter or longer depending on many factors.
Insurance companies are typically given thirty days to investigate the accident and decide who the at-fault driver was. If they have a good reason, they are allowed to extend this period. The common reasons for delay come from other parties involved in the investigation, such as the police not having a police report available. Delays in getting the report can result in delays in the insurer’s investigation. The other common reason for delay is an inability to contact someone needed to make a decision such as a driver or witness. Once the insurance company has decided who is liable in the accident, you will be able to move forward with your claim. We will work for you to push the investigation forward as quickly as possible, and advise you in dealing with vehicle issues while a fault determination is pending.
At Warnock MacKinlay Law, we are experts in building value for your injuries and obtaining the best financial result possible without having to go to trial. In the cases that a lawsuit is necessary, most are resolved before a trial occurs. The likelihood that a case settles or goes to trial depends on the facts of each case. If an insurance company contests liability (fault) or the value of your case, there is a greater chance that your case will go to trial. Our staff has more than 100 years of combined experience, thus, we know how to represent you. It is important to have a lawyer representing you who the insurers know will file suit if necessary, as that increases the likelihood of obtaining a good settlement value through negotiation. The insurers know which firms file suit and which will not do so.
One of our staff will call you within one business day of the firm’s retention. There will be more contact in the early stages of handling your claim, until we have obtained the police report, resolved liability (fault), and assisted you in coordinating your medical treatment. Once these issues have been completed, we will contact you at least once every thirty days, and more often if significant events occur. It will be very important that you contact us every three or four weeks to update us regarding your medical treatment and progress. We commit to return your call within one business day if you leave a message. Please update your address, email and/or phone number if they change.
Most often, we will communicate with you directly over the telephone. However, we will also communicate with you via text messag- ing, email, and occasionally by regular mail. If you have a specific preference, please let us know and we will gladly communicate with you by your preferred method of communication.
Generally no. You should NEVER speak with representatives from the other party’s insurance company, unless we have authorized you to do so to discuss your property damage claim only. In those cases, you should only discuss the valuation of your vehicle. You should not discuss the facts of the accident or your injuries. Otherwise, we will handle all communications for you. If a representative contacts you, politely tell them that you have retained an attorney to represent you. The representative should then contact us and never contact you again. If they do, please notify us immediately and we will file a complaint with the Department of Insurance because it is unfair claims practice for an insurance representative to contact a party knowingly represented by an attorney.
Generally no. With the exception of your doctors or anyone authorized by us, you should NOT speak to anyone about the facts of the accident or injuries you sustained in the accident. If you use any form of social media (i.e. Facebook, Instagram, MySpace, Blogs, etc.), please do not post anything regarding your accident and/or injuries, and maintain a private profile, if possible, where the general public (i.e. insurance carriers, attorneys, etc.) will not have access to your pictures or information.
You may be tempted to post messages, photographs, or videos to social media when you have been injured in an accident, but you should try to resist the urge for the sake of protecting your personal injury claim. It was revealed in an article posted in 2015 by the Huffington Post that the first place insurance companies look when investigating accident and personal injury claims is on social media accounts like Snapchat, LinkedIn, Twitter, Facebook, Yelp, and Instagram. Insurance companies will look you up on Google for any posts they can use to deny you compensation and discredit your claim. You may think your social media posts are “private,” but an insurance company can still find a way to gain access. The best thing to do to protect your case is to deactivate your social media accounts altogether. But if this is not possible, please follow the tips in the handout we will give you called, “Should I Post Anything About My Accident on Social Media.”
Yes. It is always helpful to your case if you seek medical treatment immediately following an accident. Explain to your doctor any pain or discomfort. Some injury symptoms may not appear for hours, or even a few days following an accident. If you delay seeking treatment, insurance companies will argue that your injuries were not caused by the accident and may deny payment of your claim. Report to your doctor any symptoms of headaches, fatigue, muscle soreness, nausea, pain, discomfort, etc. that occur within days of the accident.
Yes. It is VERY important that you follow all doctors’ instructions. Please be certain that you see your doctor as he or she directs, and not miss appointments, so you can achieve a speedy recovery. If at any time you consider ceasing treatment before you are released, whether for reasons of financial inability to continue, work schedule, etc., please let us know before you miss appointments. Although we in no way direct medical care, we do want to make sure you have the ability to see a doctor who can work with you under your circumstances. The insurer can only determine the severity of what your doctor any symptoms of headaches, fatigue, muscle soreness, nausea, pain, discomfort, etc. that occur within days of the accident.
You are responsible for all outstanding medical expenses until your case is resolved. We will not be able to obtain any settlement funds on your behalf to pay your medical expenses until you have been released from care and your case is settled. It is unethical for us, your attorneys, to make any payments on your behalf. If you are able, you should make minimum payments toward any outstanding balances to keep them out of collections until your case is settled. If you cannot make any payments, please let us know and we will write a hardship letter on your behalf to your medical providers. If you need referrals to medical providers who will wait to be paid until your case is settled, please let us know and we will connect you with the appropriate physician.
Maybe. Some health insurers have a right to be reimbursed if you recover from the person who caused your accident. While the law is ever-changing and sometimes confusing, the best practice is for your attorney to review your health insurance benefits book to determine whether or not your health insurer has the right to reimbursement. If we do not have a copy of your plan booklet, or a letter from your health insurer, we cannot take any steps to verify if reimbursement applies. If you do not provide detailed information on the plan so we are able to deal with it at the time of your settlement, the health insurer may be able to come back to you after your case is settled and seek reimbursement.
If you do not have health insurance, please speak with your attorney or paralegal and they will assist you in finding a medical provider who will wait for payment until your case is settled.
You may receive in the mail a “Notice of Health Care Lien.” This is a document that is recorded by a hospital or medical provider, putting you (and the insurer and anyone else issuing payments related to your claims) on notice that it has an outstanding bill to be paid. Arizona law permits a medical provider to record this notice, and then the insurance company and our firm are both obligated to make sure the balance owed to the medical provider is resolved when any funds are paid to settle your claims. “Resolved” does not necessarily mean payment in full, and we routinely take steps to obtain reductions in the balance under these Health Care Liens before checks are issued. Make sure you always provide us with any such notices you receive. In addition, the lien is only against any proceeds you receive related to the accident claims, and is not a lien against your home or any other asset, and should not affect your credit.
Maybe. Health insurers only pay the negotiated contracted rate they have with the hospital and not the total billed charges. If you have a claim against another person who caused your injuries, Arizona law permits the hospital to file a lien for the difference between the total billed charges (i.e. the amount your doctor or other provider charged for a service you received) and what your health insurance plan allowed and paid or the negotiated contracted rate. This practice is called “Balance Billing.” For example, if a hospital’s total billed charge is $1,000, your health insurer’s contracted rate is $400, and the hospital filed a health care lien, it may be entitled to recover the difference ($600). We endeavor to negotiate reductions in all such Balance Billings.
No. We will assist you in obtaining your medical records. However, you should send us any medical bills and/or Explanation of Benefits (EOB’s) you receive from your health insurer. We will then obtain an itemized billing statement and your medical records directly from any medical provider, including any initial emergency or urgent care facility, emergency responder (i.e. ambulance, fire), primary care physician, specialist, physical therapist, and/or chiropractor. However, you should keep a list of the name and telephone number of each additional provider that you see, including any x-ray facilities or other testing services, as well as doctors or specialists. (A business card for each is sometimes an easier way to keep this information.) When you are released from care, we want to make sure we have sufficient information to obtain all records and bills from every provider.
Believe it or not, obtaining medical records can be one of the most difficult aspects of our job. Often times, medical providers delay sending us your medical records for up to 60-90 days after we send them a request. We are constantly following up with medical providers to obtain your medical records so we can process your personal injury claim in a timely manner. It is always helpful that you provide us with all your medical provider information as quickly as possible so this process is not delayed even further.
Yes. Please keep accurate records of any time you miss from work; if you are now or become self-employed, any jobs you cannot do as a result of your injuries; or any other direct income losses you sustain as a result of the injuries or your necessary medical care. At the appropriate time, we will work with you to obtain wage or income loss documentation, i.e., a letter from your employer, pay stubs, etc. If there are ongoing records you can maintain to reflect the loss, such as your pay stubs, please do so. If you are self-employed, discuss with your attorney or paralegal the best methods to prove any loss so you may retain appropriate documents. If you earned overtime prior to the accident, please make sure you have paystubs or earnings records to support the total earnings so we can include those figures in your losses.
When you are released from your treating physician, please notify us immediately, so that we can obtain the necessary medical records, lost income documentation, and any other relevant information to move your claim toward resolution.
If you believe that there may be any information that would indicate any type of failure on the part of your vehicle that caused or contributed to your injuries, such as seatbelts, helmets, seatbacks or airbag issues, please immediately advise your attorney/paralegal. Once your vehicle repairs have begun, or the total loss is completed, the ability to make any claim for a vehicle malfunction (called a “products liability” claim), is no longer available, as the vehicle’s condition has been changed or it is no longer under restricted access control. Realistically, it is our firm’s opinion that products liability claims are not financially viable unless there are catastrophic level injuries or loss of life, due to the high costs for vehicle storage, expert engineers, and the long duration before any trial or settlement can be completed, often three to five years. During that time period, we also cannot typically obtain a total loss settlement for your vehicle, and you may be without any replacement transportation. If you believe you have a potential products liability case, please contact us immediately so we can direct you how best to store your vehicle in its present, unrepaired condition. Otherwise, we will not take any steps to preserve your vehicle or any evidence of a vehicle malfunction.
Liability coverage is what protects an individual if they are found to be at fault for an accident and hurt someone or someone’s property. In Arizona, the law requires every driver to purchase a minimum of $25,000/$50,000/$150,000 in liability cover- age. The first number, $25,000, is the maximum amount of coverage a liability insurer will pay per person in an accident. The second number, $50,000, is the maximum a liability insurer will pay for injuries for the total accident, for example, if there are two or more people involved. The third number, $15,000, is the maximum a liability insurer will pay in property damage.
When this situation occurs, we first check all options for coverages, including any other family members the atfault driver might live with who might have additional policies, the purpose of the atfault driver’s trip to see if a business purpose and policy might apply, and a number of other factors to make certain that we have exhausted all possible insurance, as well as uninsured and underinsured coverages for our client and any other policy in our client’s home. If appropriate, we also may do an asset check to see if the atfault driver has any assets to contribute to a settlement or pay a judgment. Once we have exhausted all coverages and potential recoveries, we work hard to negotiate all outgoing funds in order to retain the maximum amount possible in our client’s pocket. We will investigate every avenue available to maximize use of the funds for the best possible financial return to our clients.
When there are multiple claimants seeking to recover from the same funds, those claims can sometimes be conflicting. If it is all within the same family, we encourage the family to reach agreement on the fairest division under the circumstances. When there are outside persons also making claims, and insufficient coverage, the insurance companies ordinarily pro-rate the total value of the claims, both for property damage and injuries, in making settlement offers. Part of our job for our clients is to make sure your claim is fairly and fully evaluated before the pro-rata distribution is made, so our clients can retain the highest possible value. Once the at-fault insurance is exhausted, we will also seek payment under our client’s underinsured coverage, if available, and that does not have to be shared with persons in other vehicles.
A personal umbrella policy is called an “umbrella” policy because it provides liability coverage over and above the standard auto insurance, and other insurance coverage the at-fault person may have. It is an “umbrella” offering protection over all other policies for an individual if they are found to be at fault for an accident and hurt someone or someone’s property for large and potentially devastating liability claims or judgments. Personal umbrella coverage comes into play when the underlying liability limits have been reached and are not sufficient to compensate you for your injuries.
If you are in a car accident, the other driver is at fault, and that driver does not have car insurance, uninsured motorist coverage will help protect you or compensate you for your injuries. If the driver who caused your accident has some auto insurance, but not enough, underinsured motorist coverage can cover the difference between your injury claims and the driver’s coverage up to the limits of your policy. Neither underinsured motorist coverage nor uninsured motorist coverage are required under the law. They are completely optional. You must have purchased underinsured motorist coverage or uninsured motorist coverage on your policy prior to the accident for them to apply.
Medical Payments coverage is an optional coverage, not required by Arizona law, which provides for payment of an injured person’s accident-related medical expenses up to whatever the policy limit is, usually $1,000, sometimes $5,000, occasionally more. An additional premium is paid to purchase this coverage. The insurer is not required to offer this coverage. This coverage may be pursuant to several different types of insurance, including auto/motor vehicle, premises and homeowner insurance. Coverage, of course, generally depends upon the express terms of the insurance policy. Generally, auto Medical Payments will cover the driver and occupants of the vehicle, and may follow the insured as a pedestrian, bicyclist or in another motor vehicle, again depending upon the express terms of the insurance policy. Premises medical payments generally covers someone injured on the premises, but often excludes the homeowner on his own property. Medical payments are covered without regard to anyone’s fault in causing an accident or injury.
No. Please do not give your medical payments coverage to any of your doctors. If possible, everything should be billed to your health insurance. If you do not have health insurance, please speak with your attorney or paralegal and they will assist you in finding a medical provider who will wait for payment until your case is settled.
Personal injury protection can cover expenses related to injuries you sustained in a covered accident. These expenses can include medical and hospital bills as well as expenses not covered by your health insurance. This coverage can be a great supplement to your health insurance and may include income continuation, loss of services, funeral expenses, and child-care expenses.
If your car is damaged or destroyed in an accident, collision insurance coverage will typically pay to fix or replace it. Types of covered accidents include hitting another car or hitting a stationary object, like a bridge or a tree. Collision insurance can also help if someone or something else hits your car while it’s parked. Collision coverage comes with a deductible. This means you’ll pay out of pocket for some of the damage, and any amount after that is typically covered up to the actual cash value of your car. Typical deductibles are between $0 and $1,000. Insurance agents often use the term “Full Coverage” to describe a policy with Collision and Comprehensive coverage, even though “Full Coverage” may not include optional items such as rental, medical payments, uninsured or underinsured coverages.
Comprehensive coverage protects you if your vehicle is damaged without being involved in an accident, such as storms and natural disasters like hail storms, tornadoes, hurricanes and earthquakes, vandalism and theft, broken or shattered windows and windshields, animal damage, or falling objects.
Property damage claims cover the cost of damage to your vehicle or personal property. Damages sought in property damage claims typically include repairs to or the total loss of your vehicle, towing expenses, storage expenses, rental car expenses, damage to personal items inside the vehicle, and any other damage to other property caused by the accident. Property damage claims are usually resolved within 30 days following an accident. Bodily injury claims cover the cost of injury to you, personally, namely, past and future medical expenses, past and future lost income, pain and suffering, loss of enjoyment of life, permanent disability, scarring, mental and emotional distress. Unlike property damage claims, bodily injury claims may take much longer, especially if a lawsuit is necessary because the insurance company is disputing liability or the amount of damages being claimed.
“Mitigate” means that you must take all reasonable steps to keep the financial costs associated with the accident at the best cost available under the circumstances. If you have insurance that can deal with property damage, you must use it. If you have a place you can move your car while the insurance companies sort out the details and complete their investigation, and you are able to pay for the towing and storage, you must do so. If you do not mitigate your damages, the insurance companies may only have to pay for the amount that would be owed if you had taken reasonable steps to do so.
If you have collision coverage on your insurance policy, have your insurance company start the process of handling the property damage immediately to mitigate your damages and because you will have more rights in dealing with them. Your insurance company has a legal duty and obligation to deal with you fairly and in good faith because of the contract you signed and the premiums you have paid for this coverage. The other driver’s insurance does not have this same obligation to you. Your collision coverage should pay everything except the deductible. Your insurance company should be reimbursed by the atfault insurer in most instances, if there is coverage and once liability/fault is determined favorably. It is illegal for your insurance to increase your premiums if the accident is not your fault.
If you do not have collision coverage on your insurance policy:
A. If the atfault insurer has accepted liability, release the vehicle to them and let them move it from the storage yard if it was towed, either to your chosen body shop, or if it is a total loss, to the insurer’s storage-free lot.
B. If the atfault insurer has NOT accepted liability, or we don’t know who is the atfault insurer or if there is insurance coverage, your duty to mitigate damages is critical. Get the vehicle out of the storage yard if you have the ability to do so.
C. The atfault insurer (if we know who it is) is allowed up to 30 days from the date it is notified of the claim to complete its investigation, and can take longer if there is any basis to do so (i.e., police report is not ready, or they cannot reach their insured or a key witness). They often complete their investigation sooner, but are not required to do so.
D. Most insurers will complete their investigation either after speaking with their insured and confirming the facts (if their insured admits it was their fault), or after receipt of the police report and a few days to contact any witnesses for details.
E. Stay in close touch with your legal team at our office to make sure the necessary steps are being taken to get fault accepted prior to the abandonment date. If fault is not accepted by the at fault insurer in a timely manner, to prevent the abandonment, you can:
- Ask the tow/storage yard to accept your vehicle as payment for the towing and storage charges (only a viable option if the vehicle is totaled). The tow yard does not have to do so, but often will.
- Have it moved from the yard to a place of your choice (home or body shop), but you will have to pay the accrued towing and storage charges to do so, and it may continue to accrue storage charges at the body shop.
- If you leave it in the tow yard, they will become the owners through abandoned title, and you will have a $500 fine assessed against the registered owners through the M.V.D.
If your vehicle was towed to a tow yard or storage facility, the tow yard will apply for an “abandoned title” if your vehicle is not removed within a timely manner. You will receive a notice at the address listed on your registration. Your vehicle must be removed from the tow yard prior to the expiration of the 30 day notice, or the title will “abandon” (be transferred) to the towing/storage facility. If the abandonment occurs, you will also have a $500 fine assessed through the Motor Vehicle Division, and that assessment will impact registrations and drivers’ licenses for the person(s) named on the title, until it is paid. After an abandonment occurs, if you take a document to the MVD to prove your vehicle was totaled, the fee may be waived, but it is easier and best to avoid the abandonment process.
You are entitled to the Fair Market Value (“FMV”), synonymous with Actual Cash Value (“ACV”) of your vehicle if it is deemed a total loss. Arizona law does not allow you to be compensated for the amount you owe on your auto loan or for the replacement value. The FMV is based on similar vehicles sold or available for sale in your locale, approximately a 100-mile radius, from your home zip code. A good place to start is www.autotrader.com and look up the year, make, model, mileage, condition, and all upgrades to get the current value (not the original cost). You may also use any other advertised source for car sales. This will give you a good idea of the price at which similar or comparable vehicles are being sold. At the end of the comparable listing, you will see a link to the NADA Guides, or you can go directly there through www.nadaguides.com and put in all of the information for your vehicle, including mileage and accessories, and it ordinarily provides a fairly accurate value. If you wish our assistance in disputing any value, please print or email to us any listings or NADA Guide information you find that shows a higher value. Please do NOT use Kelly Blue Book as this is a dealer tool and does not accurately reflect the ACV of a vehicle.
Once the insurance company has determined the Fair Market Value of your vehicle, it will pay off the outstanding balance remaining on your auto loan, if it is less than the Fair Market Value. The insurance company will then send you a check for the difference between the pay off amount of your auto loan and the Fair Market Value of your vehicle. If your auto loan exceeds the Fair Market Value of your vehicle, you will be responsible for the remaining balance on the loan. Arizona law does not allow you to be compensated for the amount you owe on your auto loan or for the replacement value. It only allows you to be compensated for the Fair Market Value of the vehicle.
If you have rental coverage on your vehicle, your insurance company should offer you a rental car as soon as they are notified of the accident. Your insurance company will pay for the rental car in one of two ways. The first is that the insurance company has a direct bill set up with the rental car agency. The rental car agency will submit the bill to the insurance company and the insurer will pay it for up to 30 days. Keep in mind that in these instances, the rental agency may require a credit card on file to cover charges that are not covered by the insurance company, such as gas or damages to the rental vehicle. The second way the insurance company will pay for the rental car is through reimbursement. If this is how the insurance company chooses to handle it, you will pay the rental car agency and the insurance company will then reimburse you. You simply need to give us the rental car receipts and we will submit them to the insurance company for reimbursement on your behalf. Most insurers pay the full rental amount up to a specified duration and dollar amount (i.e., $30 per day for 30 days), however, some pay only a percentage, such as 80% of the total rental bill, with limits as to the specified duration or dollar amount.
It depends. If you do not have rental coverage on your vehicle and you are not the at-fault driver in the accident, you will ordinarily need to wait for your rental car until the at-fault insurance company completes its investigation. Insurance companies are typically given thirty days to investigate the accident and decide who the at-fault driver was. If they have a good reason, they are allowed to extend this period. The common reasons for delaying come from other parties involved in the investigation such as the police not having a police report available. Delays in getting the report can result in delays in the insurer’s investigation. The other common reason for delays is an inability to contact someone needed to make a decision such as a driver or witness. Once the insurance company has decided who is liable in the accident, you will be able to move forward with your claim and get a rental vehicle. If you get a rental vehicle at your own cost pending the investigation, once the atfault insurer has accepted liability/fault, you should be able to be reimbursed for the rental, subject of course to the atfault driver having sufficient policy limits to pay for the vehicle damage, towing, storage and rental charges.
Probably not. Arizona law provides that an insurer may not increase your premiums for an accident that is not caused or significantly contributed to by you, and provides a penalty to the insurer if it does so. (A.R.S. Section 20-263.) An error is occasionally made by an insurer, and if you believe this has occurred, please let us know and we will assist you in having it corrected. This consumer protection applies only to your current insurance company, and if you change companies, the new insurer can set your rates including prior claims information, even if you were not at fault.
Maybe. If you are contemplating filing bankruptcy, please contact us immediately to discuss how it could affect your personal injury claim. If you have already filed bankruptcy, we will need the contact information of your bankruptcy attorney and the appointed trustee.