It is common for victims to make many mistakes when pushing a claim. Therefore, in this article, we will explain how to avoid some of the most serious mistakes made by the victims that lead them to receive a precarious compensation or that imply that they can never receive it.
A case as an example
A few months ago, we learned about the case of a woman who had been the victim of a traffic accident. As a result of the imprudence of a truck driver, the lady had lost her sight in one of her eyes.
Guided by the lawyers of the insurer of the owner of the truck, he had filed a claim that had ended with an offer of ten million pesos by the insurer. The lady thought that it was a very good offer and she accepted it. After signing the document prepared by the lawyers of the insurer, the lady received in her bank account the payment of compensation.
After this, his quality of life worsened so much, due to the loss of his eye, that he thought of returning to claim. For this, he sought our help. After reviewing the documents, we found that the woman had all the necessary evidence to prove the responsibility of the driver of the truck, the owner of the truck, as well as the existence and amount of serious material and immaterial damages.
However, with the payment of the agreed money and the signing of a transaction contract, the woman could not claim more. He had abandoned, unconditionally, any claim for the damages resulting from the accident.
The purpose of this article is to prevent cases like this from recurring, by informing people about their rights.
The 5 Most Common Mistakes Accident Victims Make
1. Do not find out if there is liability insurance that could benefit you
Many victims spend months or even years without knowing if the vehicle that drove the accident had insurance against tort. The existence of an insurance completely changes the perspective for the victim, since the insurer is a possible person in charge who has money to answer.
If there is no insurance, the victim can only claim the person directly responsible for the accident, that is, who was driving the vehicle and the civilly responsible third parties, as we will explain later. This makes things more difficult, because, often, these people do not have enough resources to be able to pay compensation for damages or, even, they hide their assets to avoid having to answer for the damages caused.
Before going on to explain how you can know if there is insurance that can benefit you, it is necessary to specify what is a civil liability insurance taken by someone responsible for the accident. It is not the Compulsory Traffic Accident Insurance (SOAT) nor a life insurance that you have taken or an extra-contractual civil liability insurance with which you have insured your vehicle. All these insurances can benefit you and must be reviewed, because the accident and its results may involve its affectation.
However, we refer to liability insurance taken by the person responsible. It is an insurance that covers civil liability generated by driving the insured vehicle. In this insurance, the victim of the traffic accident is a beneficiary and, therefore, has the right to claim from the insurer the payment of compensation for the damages suffered, as long as it proves its existence, its amount and that the insured is civilly liable for such damages.
It is possible that the accident has no insurance. In this event, he has no support and, in case of an accident, he must respond with his own assets. In other cases, several non-contractual civil liability insurances can coexist. This is common in public service vehicles, as there may be an exclusive policy for the aforementioned vehicle and another policy taken by the transport company.
In any case, it is essential to find out if there is any civil liability insurance, through which the civil liability of the person causing the accident has been ensured.
But how do you know if there is insurance? You may find out about the insurance because the owner of the vehicle involved informs you or because the insurer's lawyer showed up at the accident site and tried to get you to sign a withdrawal. Also, you may find out when the guardian diligees a box on the transit report and refers to the insurance.
When filling out a form and sending it, you ask the insurers to inform you if there is any liability insurance that insures the vehicle involved in the accident. You must fill in the form and request the information. Once the application is sent, you will receive a code and a password. You must use this data to consult the response to your request that must be ready within fifteen business days. In response to your request, the insurers will inform you if they have issued any policy that has insured the vehicle consulted.
Once you know the insurer, you should ask him to give you a complete copy of the insurance policy. This is done through a right of petition. In this writing, the insurer must be informed that you are a beneficiary of the insurance contract, as a victim of the traffic accident.
2. Failure to perform the formalities of the claim diligently or hire a lawyer who does not push the case
Justice in Colombia is slow. The judicial processes are costly and involve a great investment of time on the part of the parties, the witnesses, the officials in the judicial offices, the lawyers and their dependents. Judicial congestion is a reality, despite the efforts of the Superior Council of the Judiciary and the government to mitigate it.
Faced with this reality, the lawyers we litigate have no choice but to have patience, instill this patience to our clients and promote our efforts, whenever we can. However, not even the most diligent lawyer can do magic to expedite the process, when the procedural burden is on the judge.
Because of this, victims must push their claims and processes from beginning to end. Your lawyer should be able to point the way.
The first phase of any claim is the collection of evidence. In some cases, this stage can last for months, since it is necessary to present petition rights to obtain documents, to practice expert opinions issued by specialized professionals, to grant powers of attorney abroad, among others. Finding out which insurer you can claim and getting the insurance policy can take two months or more. Therefore, the more diligent the victim and his lawyer are, the faster reparation can be obtained.
Many victims do not push their cases and let time go by without taking action. They take time to authenticate powers, present petition rights, get the required tests, follow the therapies and treatments of their injuries, among others. In some cases, this lack of diligence means losing the opportunity to claim compensation, as a result of prescription or expiration.
I will not stop to analyze the differences between prescription and expiration nor to explain them in detail, because this discussion exceeds the object of this article. However, victims must understand that the law sanctions their inactivity, because there are established periods of time, during which they can assert their rights and claim the compensation they deserve. If they do not exercise their rights during the period of time stipulated in the law, they lose the opportunity to claim.
3. Present the claim immediately, without waiting for the evolution of physical injuries
Although it is wrong not to promote the claim or make the arrangements in a timely manner, it is also to claim damages in a hasty manner, without certainty of the harmful result. When there are physical injuries, it is necessary to wait for their evolution before claiming any compensation.
The reason is very simple:
The value of the compensation depends on the severity of the injuries and this depends, to a great extent, on the existence of permanent functional or aesthetic sequelae.
A person who has 360 days of disability, but who fully recovers can not claim the same compensation as a person who was disabled for the rest of his life.
It is impossible to foresee, with absolute certainty, the evolution of physical injuries. Some people have a faster recovery than others. Some people can continue with their lives after suffering serious injuries, while others seem unable to recover from minor injuries. Therefore, only the passage of time allows us to observe the evolution of the injuries and have a better idea of how much to claim.
It is necessary to wait for the evolution of the lesions and how they respond to medical treatment. In case of observing permanent sequelae, it is advisable to obtain a report of loss of work capacity.
4.Do not obtain the report of loss of work capacity, when there are permanent sequelae
On one occasion, we assumed the representation of an insurer in a case in which a motorcyclist had suffered damages as a result of the negligence of the driver of an insured vehicle. The insurance company knew that it had to pay, since the insured's responsibility was clear. However, we could not reach an agreement with the victim's lawyer about the value of the compensation.
The instruction of the insurance company was to pay the plaintiff everything he could prove. When we reviewed the supports, we only found partial disabilities for almost 160 days, a labor certification and transportation receipts and medications. Based on this, we estimated compensation and offered everything that these tests allowed us.
The plaintiff's lawyer spoke of the existence of permanent sequels that would prevent the victim from returning to work as before. However, he never proved these facts, because he did not provide any medical opinion that would prove it.
In the end, we could not reach an agreement, but the judge decided to condemn the insurer for a value very close to the one it had offered. The reason is that the judge, in the absence of evidence, had no choice but to refrain from condemning the sums demanded in the lawsuit.
The report of loss of work capacity is a fundamental test to prove the existence of permanent physical injuries. With this document, the disability status or the percentage of loss of the work capacity suffered is accredited.
If a person suffers permanent sequelae, but has not been qualified, he will only be able to prove before the judge that he suffered temporary incapacities. With this, the judge will have to assume that the injuries are minor, and only then can the compensation be assessed.
5. Not be willing to give part of the claims, in order to reach an agreement that ends the conflict
Alternative dispute resolution mechanisms allow the parties to resolve their disputes amicably and expeditiously, without the decision being left to a judge. In claims for traffic accidents, special mention should be made of the reconciliation and the transaction.
The conciliation is regulated by Law 640 of 2001. In this norm, the requirements that conciliation must meet to be valid, as well as its legal effects, are established. It is about the intervention of a third party impaciar -the conciliator-, who tries to bring the parties closer, so that they can reach an agreement that ends the conflict.
From the moment a claim is filed against an insurer or a responsible third party, a negotiation process begins, which is maintained until the litigation is resolved in judicial instances. Regardless of the clarity of the legal rules or jurisprudence and the strength and forcefulness of the existing evidence, there is no guarantee that the litigation will be favorable to any of the parties. There are only possibilities.
The lawyers can not guarantee or promise our clients a favorable result. Therefore, neither the victim nor the defendant can be certain about the outcome. Faced with this uncertainty, alternative dispute resolution mechanisms are a good alternative for both plaintiffs and defendants.
Before facing the negotiation with the counterpart, it is essential to obtain and gather as much information as possible. It is necessary to know the severity of the injuries, the existence of coverage by the policy, the deductibles, the availability of the insured value, the possible existence of a prescription, the evidentiary elements with which it is counted to accredit the responsibility of the defendants, the tests that can lead us to lose the process, etc. Based on this information, a lawyer should be able to tell you the value of the compensation you could acquire in the event of obtaining a favorable judgment.
After having a landed assessment of the damages, it is important to analyze the case and evaluate how high the risk of loss is. Once the case is evaluated, negotiation can be approached from an informed perspective.
However, in order to reach an agreement, in many cases, it is necessary to give part of the pretensions. This is done for the purpose of obtaining a quick sum of money and, in addition, not depend on the decision of a judge, and ensure a result.
We must clarify that this does not mean that any proposal of the counterpart must be accepted or that always conciliate is the best option. In some cases, it is necessary to go to the last judicial instances, when the counterparty refuses to offer a reasonable figure. In fact, it is important to be willing to give up the possibility of reaching an agreement, because the best position you can have in any negotiation is to be willing to abandon the agreement.
However, it is a serious mistake to expect exaggerated sums, as opposed to a conciliation or transaction. In some cases, the victims, without having the corresponding legal advice, request figures that triple or double the amount of damages they have actually proven.
This, of course, makes it impossible to reach an agreement. In many cases, these victims are involved in very long litigations that end in sentences that recognize them even less than what the defendants offered during the process or their claims are denied.