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If you were a driver or a passenger, the insurance company that covers the vehicle you occupied during the accident is responsible for the payment of your medical bills, (Insurance Law Art. 51, Insurance Dept. Regulations, 11 NYCRR Pt. 65, Regulation 68) as well as the payment of your lost wages (up to a maximum payment of $ 2,000 per month for a maximum of 3 years, 11 NYCRR § 65.-1.1). Under the standard minimum no-fault policy, you are entitled to $50,000 in medical benefits and lost wages, but when these items add up to $50,000 or more, the policy is "maxed out"; this means that the company will not pay any more benefits in connection with the accident, and that other arrangements must be made. If the vehicle you were in had optional extra No-Fault coverage beyond the required minimum, (called OBEL or APIP), that coverage will then kick in and provide benefits after the intial $50,000 has been paid out. If you were a passenger in another vehicle when the accident happened, and you have this type of extra coverage yourself, it should be available to you for any accident, even if your own car was not involved. If there is no such coverage available, and you need more medical care after the first $50,000 has been exhausted, we can almost always work out some type of arrangements to pay the medical billing at the end of the case, so you should never have to go without medical treatment that you really need.
Watch out for "Policy Conditions". Although No-Fault coverage is usually an absolute right, there are certain pitfalls you have to watch out for in order to avoid ending up getting stuck with your medical bills, so if a lawyer is not handling the no-fault for you, at a minimum, you really should have a lawyer you can call to ask questions. First, you are required to notify the no-fault insurance company within 30 days, in writing, of the occurrence of the accident and of the fact that you were injured and will require medical care. If you were in your own car when the accident happened, or in the car of someone you know, you will obviously know which insurance company has to be notified. If you were a passenger in someone's car that will not give you this information, or if you were a pedestrian, we will usually need a police accident report in order to find out which insurance company should be notified. The police officer will generally write a three digit code number on the accident report, which tells us which insurance company each driver had. If the driver did not provide any insurance information to the police officer, we will need to run a DMV report on the license plate for this information, (This may also be a red flag that we are dealing with an accident caused by an uninsured motorist, a topic which is addressed more fully below). If the no-fault insurance company is not notified within 30 days of the accident, the insurance company will generally refuse to pay any benefits at all, based upon late notice. An application for no-fault benefits, Form NF-2, can be obtained from the insurance company or in the form published on the Insurance Department website, http://www.ins.state.ny.us/r_finala/2004/pdf/rf68ca2f.pdf). This form must be filled out, signed, and promptly sent to the insurance company by certified mail. Although certified mail is not required, it is highly recommended because insurance companies often lose things, and if there is no record of mailing, you could end up with no benefits. Additionally, all medical providers are required to submit their billing to the insurance company within 45 days of the date the particular medical service was given, or the bills will be denied as late. Therefore, it is important that all medical providers be given the no-fault information, (insurance company, claim number, etc.) by your attorney as soon as possible, and it is also important that there is a well documented record that each of them were given all of this information right at the beginning. If the medical providers' billing is denied because it was late, the medical providers might claim that this happened because the patient did not give them the no-fault information until it was too late, which means that the patient could be responsible. For this and other reasons, it is very important that accurate records be kept. Although your no-fault insurance company is not supposed to treat you as an adversary, in practice, they do and they will. In most cases, they will seize upon any excuse not to pay your medical billing or other benefits. The insurance company can and will make you go to physical examinations by their own doctors. These are not honest examinations; the doctors are generally told that they should say that about 90% of the patients do not need any further treatment as a result of injuries sustained in the accident, although none of them would ever admit this. Where the insurance company doctor says that you do not need any more treatment, the insurance company will stop paying your doctors, and we will generally have to ask your doctors to keep treating you until this can be disputed with the insurance company later on, or it may become necessary to find another doctor who will treat you without getting paid right away. You should also keep in mind that anything you say to the insurance company doctor can be used against you in your lawsuit. If your injuries are serious, you should really not be going to any insurance company doctor unless you are accompanied by a lawyer, or at a minimum, someone from the lawyer's office, and you should be saying as little as possible about the details of the accident. You should also remember that you must keep these appointments with their doctors. If you fail to keep any of these appointments, the insurance company can and will deny your benefits. Another policy condition is an "EUO", or examination under oath. If your insurance company demands this, you must go and answer the insurance company lawyer's questions under oath with a court reporter taking the testimony down, and you must sign the transcript and send it back to them. Your testimony at this examination may also be used against you in your lawsuit. It is very unwise to go to an EUO without a lawyer present to protect your interests. All of these things are called "policy conditions", and your failure to do any of these things will generally lead to a denial of benefits. Although you must generally comply with all of these requests from the insurance company, you have an absolute right to have an attorney represent you at each step of this process. You should take full advantage of this right, because you can create huge problems in your case by dealing with the insurance company directly.
While many drivers of big trucks are safe and conscientious drivers, unfortunately many others are not. Many truckers drive for long periods of time without sleep, and the regulations requiring periods of rest are often ignored. Accidents involving big rigs frequently result in serious injury and death due to the massive weight of these vehicles and the immense force which results when they crash into a car. In many of these cases, there is no real liability issue as to whether the truck driver was at fault; it is often clear. What becomes an issue, and often times a very significant obstacle to resolving the case, is the insurance coverage, which can become fairly complicated.
In most, but not all commercial situations, the tractor, which is the front portion of the truck which pulled the trailer, (the back portion) are owned by separate companies. Many times, the tractor is owned by an individual trucker, or by his closely held corporation, and he enters into an agreement with a motor carrier, (the company that owns the trailer, and is involved in the commercial shipment of freight). The motor carrier is required by federal regulations, (49 CFR § 387.9) to carry at least $750,000 in liability insurance, or $5,000,000 if hazardous materials are involved. Motor carriers frequently carry higher limits than this, due to the serious nature of the accidents these vehicles can cause. Aside from the trailer, the tractor is required to have its own insurance policy, which is commonly known as a "bobtail" policy. The bobtail policy, by its terms, usually only covers the tractor when it is not pulling the trailer, or when the task it is doing for the motor carrier has been completed. The name "bobtail" comes from the fact that when a tractor is not carrying a trailer, the hitch in the back of the tractor tends to bob up and down as the vehicle is driven. Bobtail policies have all kinds of "exclusions", which are special situations in which the insurance carrier does not provide any coverage. These "exclusions" have been attacked in the court, with different results in different states. Many times exclusions are not upheld by the courts, so they have to provide coverage no matter what their policy says. This results in frequent disputes as to which of the two companies is "primary", meaning which will have to pay their policy first, whether their insurance policies will be paid proportionately or "pro-rata", or whether the responsibility will be shared between them in some other way. To make this even more complicated, many times the tractor and the trailer are registered in different states, so there is a dispute over which State law should be applied to the case. For this reason, we feel that these disputes are best resolved in the federal courts, even if the accident case itself is filed in the state court. In many serious accidents, the resolution of the insurance coverage disputes is more important to the insurance companies than the defense of the case, since in most of these situations, their driver is clearly at fault.
In order to resolve the case or move it forward, it is sometimes necessary to resolve the insurance coverage dispute first. This is most effectively done by starting another lawsuit directly against the insurance companies involved, which is called a "declaratory judgment" action. It is not a lawsuit for money damages, instead, it is a lawsuit to ask the court to determine the responsibilities of the insurance companies involved. In order to get a result without years of delay, it is often necessary to start and push this type of coverage lawsuit. In fact, in many situations, the accident case itself is settled in the course of the declaratory judgment action, because the insurance companies get a better idea of what their responsibilities will be once the specific issues are placed in front of a judge. Insurance coverage is a specialized field of law, in which both Bill Cafaro and Steve Pivovar have substantial experience in both the state and federal courts.
If you are involved in one of these serious accidents, certain steps should be taken right at the beginning to make sure that your rights are protected against all of the insurance companies involved. A failure to do this can result in a coverage disclaimer, which can substantially limit your recovery, and prevent you from receiving full compensation in the case of very serious injury or death. Make sure that your interests are properly protected if this happens to you or one of your loved ones.
If you were driving your own car at the time of the accident, your own policy of insurance always protects you in the event that you are injured by the negligence of an uninsured motorist. If you were a passenger in someone else's car, the policy that covers that car would give you uninsured motorist benefits.
If you were a driver or a passenger hit by an uninsured driver, you make an uninsured motorist claim to the insurance company of the car you occupied at the time. If you were a pedestrian hit by an uninsured motorist, you would make the uninsured motorist claim to your own insurance policy, even if your own car was not involved in the accident at all. If you are a pedestrian hit by an insured motorist, and you do not own a car yourself, you would make the claim to the insurance company of anyone in your family who lives in your household who owns a car. If there is no one in your household who owned any car as of the date of the accident, you would make this claim to a public corporation known as MVAIC, (Motor Vehicle Accident Insurance Corporation), under Article 52 of the Insurance Law. In this situation, MVAIC will provide you with no-fault benefits and the same $25,000 in coverage which a minimum policy would have provided.
An uninsured motorist can be:
i) someone who never got insurance;
ii) who fraudulently registered the vehicle;
iii) who lied to the insurance company when he got the policy about where he lived, (i.e., many people who live in New York register their vehicles with a relative who lives out of state to save money on the insurance premiums. This is a fraud, and can result in a refusal to pay anything on the part of the insurance company.);
iv) the vehicle could be stolen, or operated without the permission of the owner; or
v) the owner could have failed to pay insurance premiums, and the policy could have been canceled.
Therefore, even if the driver showed the police officer an insurance card at the accident scene, steps should still be taken to protect you in the event that defendant driver turns out to be "uninsured". This protection is required by law to be written into every insurance policy, and even if the insurance policy did not contain such a provision, the court would clearly require the insurance company to give you this coverage. However, unless you purchased certain specific additional coverage, insurance policies are only required give you uninsured motorist coverage in the minimum amount, ($25,000/$50,000). This means if one person suffers serious injury through the fault of an uninsured motorist, your own policy will be required to give you $25,000 worth of coverage, in addition to no-fault benefits as described above.
If the driver who caused the accident only had a minimum policy, ($25,000/$50,000/$10,000), and you have what is called SUM coverage, you can make what is called an "underinsured" motorist claim. This means to you injured by someone who had insurance, but who did not have enough insurance to fully compensate you for your injuries. SUM coverage is something that you would have had to buy in your own insurance policy before the accident occurred; after the accident occurs, it is not possible to change any aspect of the insurance coverage of any of the vehicles involved. SUM coverage can be purchased for a relatively small premium, and is a very valuable protection to have if you or anyone in your family is injured in an automobile accident. You cannot buy SUM coverage if you yourself have a minimum policy, since SUM can only protect you up to your own liability limits. For example, if you have $100,000/$300,000, ($100,000 for injury to any one person, $300,000 for injury to more than one person in any one accident), you can purchase SUM coverage up to a value of $100,000/$300,000, which will give you additional protection, if you or any relative in your household is injured by a driver who only has a $25,000/$50,000 policy. This is an excellent investment, and well worth the additional premium which the insurance company will charge.
If you are injured in an automobile accident and you have SUM coverage, there are various notice and other requirements which must be met within very short time limits, or the protection of this coverage may be lost. Even if you do not have SUM coverage yourself, someone else in your household might have it, and the only way to know this for sure is to have an attorney actually read the insurance policy. If this is not done promptly at the beginning of the case, the benefit of this protection will most likely be lost, so this should be done right away.
Worker's compensation pays your medical benefits and your lost wages in this situation, instead of the no-fault insurance company. The Application for No-Fault Benefits form asks if you were in the course of your employment when the accident happened, and if you say "Yes", your benefits will be denied because they should be paid by worker's compensation.
No. You should call us first and let us report it to the insurance company for you. Your insurance company will tell you that you are required to cooperate with them, which is true, but you are absolutely entitled to have your attorney do most of this, and you should never speak to insurance company representatives directly. If they insist on a recorded statement, you should never give one without consulting with your attorney first, and you should never give them one at all without having your attorney present. Even if you do not create any no-fault problems, you may create some very serious problems in your lawsuit. Anything you say in any of these statements will generally be admissible against you in any lawsuit you later bring.
The answer is that we have what is called a "no-fault system" which covers automobile accident injuries in the State of New York, (Comprehensive Motor Vehicle Insurance Reparations Act, Insurance Law §§ 5101 et seq.). Under the no-fault law, the vehicle which the injured party occupied at the time of the accident pays his/her medical bills, and lost wages within certain limits, without regard to who was at fault in the accident. In the event a pedestrian is struck by a vehicle, that vehicle is responsible for the medical bills, even if the pedestrian suddenly ran out in front of the car. One reason this law was created was to solve the problem of people having to wait until a judge or a jury decided which of the drivers involved in the accident were at fault. The idea was that people could receive payment of their medical bills and lost wages without going through a long disputed process. You are also entitled to have your medical bills paid if the accident is completely your own fault, or if no other vehicle is involved. For example, if you were to fall asleep and drive into a tree, your insurance company would have to pay your medical bills, even though you might not be able to sue anyone. Your insurance company would not have to pay your medical bills, however, if you were driving the car while drunk or under the influence of drugs at the time of the accident. You also have a right to make a no-fault claim whether or not you decide to bring a lawsuit against anyone or not.
No, not if the accident was the other driver's fault. Under rules made by the Superintendent of Insurance of the State of New York, the insurance companies are not allowed to raise your rates in these circumstances if the other driver is found to be completely at fault. If both yourself and the other driver have partial fault, there is a formula, which uses the percentages of fault and the amounts of the damage to each car, which is used to determine whether or not your rates may be raised. Again, assuming that the other driver was at fault, your insurance company, or whichever insurance company paid your medical bills, will settle up with the insurance company of the responsible driver through what is called an intercompany arbitration (Insurance Law § 5105), without you having to do anything at all. Even though you will ordinarily never know that this happened, ultimately, the insurance company of the responsible driver will end up paying your medical bills after all the smoke clears, even though we have a no-fault law.
What if the hospital or the doctors charge more money than the No-Fault coverage will pay?
The doctors made me sign something saying that I am responsible for the difference between what they charge and what the insurance company pays. I can't work and don't have enough to pay my regular bills. How am I ever going to pay this?
You never have to pay any of this, as long as the medical provider accepted you as a no-fault patient, and as long as you have not violated any policy conditions, (see "Is there anything I have to do anything to get No Fault Coverage?", above). You generally don't have to pay anything out of pocket, except that under certain circumstances, if you are claiming under your own policy, you might have to pay a one time $200 deductible, but even this can almost always wait until the end of the case. Doctors, hospitals, therapists, pharmacies, and every other type of medical provider that accepts you as a no-fault patient is paid a certain amount by the insurance company for each visit, operation, hospital stay, therapy session, etc., according to a fixed schedule. These amounts are generally less than you might think. If the amount the no-fault insurance company pays is less than the doctor or medical provider usually charges, or if the insurance company disputes that the treatment was necessary, the medical provider must take this up with the insurance company, and is never allowed to charge you the difference. Even if the doctor's office made you sign something that says that you are responsible for the difference, it cannot be enforced, and if any medical provider tries to collect this from you, they can actually get into trouble for it. Keep in mind that these rules only apply if the doctor accepts you as a no-fault patient. When you first go to a doctor's office, you must ask if they accept no-fault; if they do not, you must go to another doctor who does. If the particular doctor's office never accepts no-fault from any patient, they are not bound by any of these rules. Except for certain specialties, (i.e., plastic surgeons or dentists), it is generally easy to find health care providers who accept no-fault coverage. You can assume that any hospital you went to accepted you as a no-fault patient.
In order to receive compensation for pain and suffering, a lawsuit must be brought against the owner and the driver of the responsible vehicle which caused your injuries. The owner and the driver will then forward the suit papers to their insurance company, who will in turn hire lawyers to defend the owner and driver. The insurance company is generally required to pay any judgment which is taken against it's insured owner or driver up to the policy limits. Anyone who was driving the vehicle with the permission of the owner will be covered by the insurance policy. This is called liability insurance, and the insurance company has to pay a judgment taken against its insured - this is called indemnity. How much your compensation for pain and suffering will be is ultimately determined by a jury, unless the case is settled before a verdict is reached. However, settlements often reflect the opinions of both sides as to how much money the jury would award if the case did go to verdict. Even though the value of the injury may be very substantial, it might not always be possible to collect the verdict the jury awards unless the responsible party has enough insurance coverage.
This must be determined in each case individually. Once a lawsuit is started, the defense has to tell us what the limits of the defendant's insurance policy are, and if we need it, we can get a complete copy of the insurance policy, (Civil Practice Law & Rules § 3101(f)). The law requires all vehicle owners to obtain liability insurance for every motor vehicle in at least the minimum amount of $25,000/$50,000/$10,000, (Vehicle & Traffic Law § 311(4)). This means the insurance company is required to pay $25,000 for injury to any one person, $50,000 in total per accident in the event more than one person is injured, and a limit of up to $10,000 for property damage. In the event of a fatal accident, the insurance company is required to pay up to $50,000 for one fatality and up to $100,000 if two people die in the same accident. Taxis, including yellow cabs and gypsy cabs, as well as the black cars, are required to carry $100,000/$300,000 whenever they are licensed to operate within the City of New York. This means $100,000 of coverage for injury to one person, and a total of $300,000 per occurrence when more than one person is injured in the same accident. Any vehicle owner can get higher coverage limits from their insurance company by paying a higher insurance premium, and individuals who own substantial assets and businesses that own commercial vehicles will often have insurance policies with much higher than the minimum required limits. Oftentimes, people who own substantial assets will have "umbrella" coverage, which acts as excess coverage, and "kicks in" after the first level of insurance coverage is exhausted. If someone else in the same family as the defendant insured lives in the same household with him or her, sometimes this coverage can be "stacked", meaning that sometimes we can collect the limits of each of the policies for you. Additionally, even if the vehicle involved in the accident had limited coverage, if the driver was acting in the course of his employment, such as running an errand for his boss, the company could be responsible, possibly enabling you to collect full compensation for your injury.
I don't think I'll ever be able to work again - at least not the same kind of work I was doing before the accident. I'm also going to need medical care for the rest of my life. How do I claim my future lost wages and medical expenses?
We will do this for you in Court, and the value of these items will be decided by the jury. First, your lost wages must be shown through your earnings history, tax returns, W-2's, and similar documents. If your earnings would have increased due to a union contract, some promotion you were in line to get, some special training you were undergoing before the accident happened, or some other circumstance, we would need to get those documents and interview all of the important witnesses that would be needed to prove this, such as your boss, co-workers, etc.. All wages can be expected to grow at what we call the rate of inflation - Think how much a candy bar or a movie ticket used to cost 20 years ago. But many times, due to your particular circumstances, it can be proven that your earnings would have increased at a faster rate than the general rate of inflation. Once the proof of these items has been gathered, we will then give it to an economist, who will predict what your earnings would have been over your expected work life if you had not been injured. These economic projections will usually run well into the millions of dollars, and are usually the most important aspect of your case, and you owe it to yourself and to your family to get the most that you can, because it will have to replace the salary you would otherwise have gotten for the rest of your life. Similarly, with your medical expenses, either your doctors or an expert called a life care planner will provide the cost of the various items of your medical treatment, physical therapy, pain medication, etc., and these costs are also given to the economist for projection. In the past, medical costs have gone up at a much higher rate than most other costs, and the future medical costs can also add up to a very large number in a verdict.
Obviously, both you and the drivers of any of the vehicles, as well as any other witnesses who actually saw the accident, will testify in front of the jury. In addition to this, in some cases, particularly if there is a death involved, an accident reconstructionist should be consulted. Accident Reconstructionist can inspect the accident scene, take photographs and measurements of any skid marks, inspect the damage on the vehicles involved, and review police reports and transcripts of the witness testimony. If the case involved any fatal injuries, the police reports will be significantly more detailed, and the police will also usually take photographs. Using this information, their experience, and various laws of physics, accident reconstructionist and biomechanical engineers can often prove that your version of the accident is the correct one, or fill in details that witnesses were unable to see or accurately recall. For example, using the extent of the damage to the vehicles, the length of the skid marks, measuring how slippery the road surface was, the amount of tread left on the tires, and various other factors, they can often demonstrate that the defendant driver had to be going much faster than the speed he or she gave in their testimony. After the jury hears all of this testimony, the judge instructs the jurors to go in a deliberate, and to answer the following questions, which are called jury interrogatories:
(Remember that you, as the person bringing the lawsuit, are called the plaintiff, and the person being sued is called the defendant.)
1. Was the defendant driver negligent? Yes_____ No_______
If your answer to this question is Yes, go on to Question 2. If your answer to this question is No, go no further and report back to the Court.
2. Was the defendant's negligence a substantial factor in causing the accident?
Yes _____ No_______.
If your answer to this question is Yes, go on to Question 3. If your answer to this question is No, go no further and report back to the Court.
3. Was the plaintiff driver (this is you) negligent?
If your answer to this question is Yes, go on to Question 4. If your answer to this question is No, go no further and report back to the Court.
4. Was the plaintiff's negligence a substantial factor in causing the accident?
Yes _____ No_______.
If your answer to this question is Yes, go on to Question 5. If your answer to this question is No, go no further and report back to the Court.
5. Give the percentages of fault of each driver. These two numbers must add up to 100.
Percentage of Fault of Defendant Driver ________
Percentage of Fault of Plaintiff Driver ________
Report back to the Court
In Queens, Brooklyn, Staten Island, Long Island, and the upstate counties, trials are cut in half, (this is called a bifurcated trial). The first half of the trial just deals with the issue of fault, and is called the liability phase. The injuries are normally not allowed to be mentioned to the jury during the liability phase. The questions listed above show what a verdict sheet actually looks like in the liability phase of a 2 car motor vehicle accident in which the plaintiff was driving. Assuming that the defendant is found to be at least partially negligent, the case would then proceed to the damages phase, usually with the same jury, starting very soon after the liability verdict. The damages phase is described in the next paragraph. In Manhattan and the Bronx, trials are "unified", which means that all liability and damages issues are presented to the jury, and then the jury deliberates only once, answering the liability questions (above) and the damages questions (below) in the same verdict sheet.
You will be called to testify in front of the jury with respect to your injuries, your medical treatment, your pain and suffering, and the various ways in which the accident has affected your life. If you are married, your spouse should usually be called as a witness, since no one else is more aware of how this has affected you. If you played sports or recreational activities before the accident, the people you did these things with, (we call them "before and after" witnesses), should be called to get this across. Many times your physical limitations and difficulties can be presented much more effectively and more convincingly through others than by talking about it yourself. Photographs of activities you engaged in can also be blown up or projected on screen for the jury, and can often forcefully express the value of what has been taken away from you by the injury. You will also testify about your work history, and your prospects for earning more money in whatever job, trade or profession you were involved in. Other witnesses that we need to form the basis for the economist's projection also have to testify.
The medical testimony is obviously a critical part of every personal injury case. You need attorneys who will take the time to meet with your treating doctors in their offices to get a good idea of what their testimony will be while your case is in progress, instead of waiting right before the trial to talk to them.
The jury is not given any formula to calculate the amount that you will be awarded, and all types of jury awards are broken down into those damages incurred in the past, that is, up to the date of the verdict, and the future, which is the time starting with the date of the verdict and covering your life expectancy. The typical damage verdict sheet looks like this:
(1) State separately the amount awarded for the following items of damages, if any, from the time of the occurrence up to the date of your verdict:
Medical Expenses _______________
Loss of Earnings ________________
Pain and Suffering up to the date of your verdict _________________
(2) State separately the amount awarded for the following items of damages, to be incurred in the future:
Medical Expenses ______________
Loss of Earnings _______________
Pain and Suffering, including the permanent effect of the injury, from the time of the verdict to the time plaintiff could be expected to live. _____________________________
(3) If you do decide to award any amounts intended to compensate the plaintiff for damages to be incurred in the future, then for each item for which an award is made, state the period of years over which such amounts are intended to provide compensation.
It might seem that the jury is being asked to pull a number out of the air, and some people would agree with this. However, experienced trial lawyers know that good results on verdicts come from the painstaking preparation of the client and the witnesses in order to make the best possible impression on the jury. First, because any juror is making a very subjective decision when he or she decides how much you should be awarded, the jurors must like you. Every client has likeable aspects to his/her personality, as well as some aspects that might be downplayed. The same is true of the spouse or "before and after" witnesses we might call. The medical testimony must not only be credible, but it must be properly illustrated. Medical illustrations lend a certain reality to serious injuries, and they can be much more readily understood with blow-ups of MRI's or CAT scans, artistic renderings of fractures or hardware that has been placed, or animated illustrations of surgeries you have had. The testimony of the economist must also be credible, particularly when his/her projections are in the millions of dollars. Most importantly, the attorneys you have chosen are the ones who will speak for you. The most important thing is that they maintain credibility with the jury in order to get a verdict that will give you the fair compensation you deserve for the serious injuries that you have suffered.