Frequently Asked Questions

What You Need To Know, Questions About Law

What is a tort?

Generally it is a wrong committed by a person or company resulting in injuries or damages to a person and/or property.

What is personal injury protection (PIP)?

No fault benefits in Pennsylvania include such things as medical expenses, wage loss and funeral expenses.  These coverages will be paid by your insurance carrier regardless of whether the accident was your fault.  In Pennsylvania an automobile insurance carrier must offer a minimum of $5,000 for medical expense coverage for each insured.  Increased medical benefit coverage can be purchased at a higher premium.  Wage loss and funeral expenses are optional.  Other optional automobile coverages consumers can purchase in Pennsylvania include Uninsured Motorist (UM), Underinsured Motorist (UIM), collision, comprehensive, catastrophic loss and rental to name a few.

Generally how do insurance companies calculate the value of personal injury claims?

Insurers take into consideration many factors including liability (who was at fault for causing the injury), the nature and severity of the injuries and damages sustained, the type and duration of medical treatment, the amount of the out-of-pocket “economic” losses (medical bills, past and future wage losses, future care expenses, etc.) and the credibility of the parties and witnesses.

What are the differences between economic damages and non-economic damages that result from a personal injury?

Economic damages are out-of-pocket monetary losses (future and past wage losses, unpaid and non-payable medical bills, healthcare liens including Medicare and Medicaid, property damages, future care costs, etc.).  PIP paid by an automobile insurance carrier is not a reimbursable expense in Pennsylvania.  Non-economic damages compensate an injured victim for pain and suffering, deformity, scarring and/or death which result from an injury.

What is the general process of an injury claim from accident to resolution?

After the client retains our firm we open the file and send out letters to the doctors, insurance carriers and other interested parties.  After the client concludes treatment we order all of the medical records and send a special Demand/Settlement package to the liable insurance carriers in an attempt to amicably resolve the claim with the permission of our client.  If the case cannot be resolved for a fair and reasonable amount, we prepare and file a lawsuit and the case is litigated in state or federal court (depending on the individual circumstances of each case).  In state court cases which are valued at $50,000 or less get placed in the arbitration program and cases valued over $50,000 get filed as either jury or bench trials.  In federal court cases valued between $75,000 and $150,000 fall into the arbitration program (however, some judges will not authorize matters to be placed into the arbitration system and mandate that they be tried in front of a judge or jury).  Cases in federal court valued in excess of $150,000 will be heard by a judge or jury depending on the wishes of the parties.  The length of time in which each case is resolved is dependent on many different factors including:  Period of time the client treats for his/her injuries, time it takes the medical providers to furnish our office with the client’s records and/or reports and negotiation process with the various insurance carriers.  If a lawsuit is filed in state court each county in Pennsylvania has differing procedures with respect to how a case is heard and the time from the filing of the lawsuit to trial is different from county to county.  Most federal court cases are usually heard within eight to fifteen months from the filing date.

How are personal injury cases resolved?

Cases are favorably resolved by settlement with the permission and approval by the client or by court verdict.  In the latter case, the matter could be appealed as a matter of right in some circumstances or if one of the parties believes there was an error of law committed by the court.  Cases can also be heard in private forums called Alternative Dispute Resolution (ADR) programs which can either be binding or nonbinding.  In ADR the parties mutually agree on a single person or multiple persons to help facilitate a settlement between the parties (mediation) or act as a judge and jury and can render a verdict in the case (arbitration).  The parameters of the ADR are agreed to by the parties prior to the arbitration or mediation.

How are personal injury lawyers paid?

Personal injury lawyers are paid on a contingency basis.  This means that if a favorable recovery is not obtained the client is generally not obligated to pay for any of the costs incurred by the lawyer or the lawyer’s fee.  Typically, lawyers fees in personal injury cases range from thirty three and one third (331/3%) percent to forty five (45%) percent depending on the type of case handled and/or the individual facts of each case.  Some counties in Pennsylvania have set the maximum allowable lawyer fee at twenty five (25%) for the handling of minors cases.

What is the difference between first party coverage and third party coverage on my own automobile policy?

First party coverage is the coverage an insured selects on his/her own policy if involved in an accident.  First party coverages include medical, wage loss and funeral benefits (PIP coverages) in addition to UM, UIM, collision, comprehensive, rental, catastrophic loss and wage loss.  Third party coverages are selected by the insured as protection in the event that he/she injures others as the result of a car accident.  These coverages include liability and property damage.  There is also optional umbrella coverages which can help protect an insured’s assets over and above his/her automobile liability limits.

How much automobile coverage do I need?

We tell all of our clients as much as you can afford to protect your assets.  Our lawyers always make the time to discuss coverage options with our clients.

What is the difference between UM and UIM coverage?

Uninsured Motorist coverage (UM) is a first party coverage selected by an insured as protection in the event he/she is injured by a phantom vehicle (a vehicle that causes an accident and then immediately flees the scene without leaving any identifying information) or the accident is caused by a vehicle that did not have valid insurance coverage at the time of the accident, where the accident is caused by the operator of a stolen vehicle or by a non-permissive driver or where an insurance company becomes insolvent or files bankruptcy.  Underinsured Motorist coverage (UIM) is first party coverage selected by an insured as protection in the event he/she is injured by another whose third party liability insurance coverage limits are not great enough to fully compensate the injured victim.  In these instances the insured victim can tap into his/her own UIM coverage to supplement the payments made by the other party’s insurance carrier.  UM and UIM are optional coverages in Pennsylvania.  We recommend that all of our clients carry UM and UIM coverage on their vehicle policies.

Does Pennsylvania have a personal injury tort threshold for motor vehicle cases?

Under Pennsylvania law insureds can select the Limited or Full Tort option.  At an additional cost, the full tort option may be selected and allows the injured insured to automatically present a claim for pain and suffering for any personal injuries sustained as the result of an automobile accident where he/she is not determined to be at fault.  If the cheaper limited tort option is selected the injured insured will be required to prove he/she has suffered a serious injury of a body function or qualify under another exception in order to seek recovery for pain and suffering (non-economic damages).  Limited tort recipients can always seek compensation for their economic damages (wage loss, excess medical bills, etc.) if they were not at fault for causing the accident.  Presently there are several exceptions which could help an injured victim who is bound by the limited tort option recover damages for pain and suffering:  If the vehicle which caused the accident is registered outside of Pennsylvania; if the operator of the vehicle which caused the accident is convicted or pleads guilty to DUI or DWI or accepts ADR; if the other driver intends to injure himself or another; if the other driver is uninsured; the victim suffers injuries which result in death, dismemberment, serious cosmetic disfigurement or an injury otherwise deemed to be a “serious injury of a body function.”  There are other exceptions that may apply and if you have any questions regarding an accident or your tort status please contact an attorney at Edelstein Martin & Nelson immediately.

What types of personal injury claims do we handle?

We handle personal injury claims caused by vehicle accidents, medical negligence, defective consumer and/or industrial products, defective conditions in property, nursing home neglect, dog bites, construction site negligence as well as other types of injuries which result in brain damage or death.  Our firm also handles private and group (ERISA) long term disability claims.

What is the general procedure for personal injury cases once a lawsuit is filed?

Generally speaking, once a lawsuit is filed and the parties’ attorneys enter their appearances and motions or answers to the complaint may be filed.  Then discovery commences which is the process in which the parties exchange information, documents and/or materials.  During the discovery process parties may be noticed and witnesses may be subpoenaed for depositions (question and answer sessions under oath before a court reporter).  Once discovery is complete motions may be filed in an attempt to dismiss some or all of the claims.  Thereafter, settlement conferences are usually scheduled, followed by pre-trial settlement conferences and trial.  Different venues in Pennsylvania have differing rules of civil procedure and arbitration cases differ from cases filed as bench or jury trials.

Can the insurance companies contact me if I am represented by an attorney?

 Not unless your attorney gives permission to do so.

What are the first steps I should take if I am involved in an accident and suffer injuries?

Contact a lawyer immediately, notify the police or proper authorities to document the accident/incident and present yourself to a hospital or doctor to be examined and treated for your injuries.

What is the likelihood that my personal injury case will settle prior to the filing of a lawsuit?

The great majority of all personal injury claims amicably resolve without the need for filing formal litigation in a court of law. However, this depends on numerous variables which are unique to each individual case.

What happens if my accident occurs while I am in the course and scope of my employment?

In Pennsylvania if your accident and resulting injuries occur while you are in the course and scope of your employment, Workers Compensation is primary for the payment of the medical bills and wage losses.  The accident should be reported to your employer and you should immediately contact an attorney to determine your rights and duties under the laws of Pennsylvania.

Is ADR used to resolve personal injury cases in Pennsylvania?

Alternative Dispute Resolution is a great option to resolve personal injury claims in Pennsylvania.  Many clients do not want to have a jury determine their fate.  Here the parties mutually agree on one or three experienced judges or lawyers to preside over their case and help the parties come to an amicable settlement or a decision which is often binding on the parties without the right to appeal.  ADR is often a preferred means of resolution because the parties have more control and medical expert testimony can be presented through reports which can save the parties money.

How long does it generally take for a personal injury case to conclude from the time a lawsuit is filed?

Every case is different but we tell our clients that litigation is usually a long drawn out contentious battle and in the worst case scenarios it could be years before a final resolution is reached.      

Do I really need a personal injury lawyer to handle my injury claim?

There is no requirement under the law that a personal injury claimant be represented by a lawyer, however, courts require parties to know the law and follow the strict rules of procedure with respect to the handling of cases.  In Pennsylvania there is no uniformity for the rules of civil procedure and each of our 67 counties have differing local rules of court.  There are many reasons why the vast majority of injured victims retain a qualified personal injury lawyer and choose not to handle their claims themselves.  Insurance companies tend to give less time and attention to case files in which a lawyer is not involved.  If you want the best opportunity for full and fair compensation we strongly recommend hiring a qualified lawyer to handle your personal injury case.

Why would a lawsuit have to be filed in my personal injury case?

If your case cannot be amicably resolved before the expiration of the applicable statute of limitations, a formal lawsuit has to be instituted.  If your claim is denied or ignored by the other party and/or his/her/its insurance carrier (could be for a variety of different reasons) a lawsuit would have to be filed to protect any meritorious claims you may have.  Each state has its own unique laws regarding statutes of limitations so you should be aware of the latest date for filing a lawsuit to protect your rights.   

What is negligence?

Negligence is comprised of four components:  Duty, Breach, Causation and Damages.  In order to hold another party responsible for any injuries you sustained resulting from an accident you must prove they were negligent.  First, you have to prove the other party had a duty to act or not act.  Second, the other party must have breached that duty.  Third, the breach of the other party was a factual cause of the injury or damage you sustained.  Finally, you have to prove the injuries and/or damages with specificity that were caused by the other party.

What types of accidents fall under “premises liability”?

Any type of accident resulting from a defective or unsafe condition on or in real property is generally considered a premises liability matter.  Common types of premises cases include trip and falls, slip and falls, falling ceilings or falling debris, construction accidents and electrocutions.

What do I need to prove in order to establish liability against a defendant in a premises liability claim?

In Pennsylvania in order to prevail in a premises liability claim you have to prove that a defective or unsafe condition existed and the responsible party was negligent in failing to keep the property safe.  It is also necessary to prove that the responsible party had notice of the defective condition prior to the time of the accident which cased your injury.  There are two types of notice, i.e. “actual” and “constructive.”  Actual notice is where the responsible party knew of the defective condition but failed to make it safe prior to the time of the accident.  Constructive notice is where the responsible party failed to act reasonably under the circumstances, and if they acted reasonably (i.e. through routine inspections of the premises) they would have or should have discovered the defective condition and had a reasonable amount of time under the circumstances to cure the defect prior to the time of the accident.

What is the statute of limitations (SOL) for personal injury claims in Pennsylvania?

The SOL in Pennsylvania for personal injury claims is generally 2 years from the date of the accident or incident.  If a formal lawsuit is not filed in a court with proper jurisdiction within that 2 years the claim will be time barred and the injured victim will have no further recourse.  There are some exceptions.  Minors (children under the age of 18) have 2 years from the date of their 18th birthday to file a formal lawsuit.  If a person has been adjudicated by a court to be incompetent or incapable of handling their own affairs the SOL may be extended.  In medical negligence (malpractice) claims there is a “discovery rule” which could extend the 2 year SOL to 2 years from the date the injured victim knew or should have known that a medical procedure caused an injury or from the date they knew or should have known there was a misdiagnosis of a medical condition.  Some claims for medical expenses or repayments of medical liens associated with an injury may extinguish within 2 years and for these reasons an attorney should be contacted to determine your rights.  

Does the SOL change in medical malpractice claims?

In medical negligence (malpractice) claims there is a “discovery rule” which could extend the 2 year SOL to 2 years from the date the injured victim knew or should have known that a medical procedure caused an injury or from the date they knew or should have known there was a misdiagnosis of a medical condition.  Some claims for medical expenses or repayments of medical liens associated with an injury may extinguish within 2 years and for these reasons an attorney should be contacted to determine your rights.

Can I go after the responsible party if he/she/it is uninsured?

The short answer is yes, however, it could be a very costly endeavor with no guarantee of compensation.  Most personal injury lawyers will not handle personal injury cases where the responsible party is uninsured or where the carrier denies coverage under a valid policy.  In these instances there is always the possibility that the negligent party will file bankruptcy and the injured victim’s rights to compensation could be extinguished or severely compromised.  A judgment or verdict may be obtained but the ability to collect the money may not be possible.  In other words, the judgment may not be worth the paper it is written on.  In Automobile claims, Uninsured Motorist (UM) and Underinsured Motorist (UIM) coverage benefits, if elected, become a viable alternative source of monetary recovery.

What is loss of consortium?

Generally, this is a derivative claim maintained by the spouse of an injured victim for the losses of services, companionship and intimacy.

Is any portion of my personal injury claim taxable?

You should always consult with a tax specialist or accountant for taxation questions.  As a general rule, the portion of a personal injury settlement which is allocated for “bodily injuries” is not taxable, however, any portion that may be allocated to wage losses would be taxable.

Do I have any say in whether to accept or reject a settlement offer?

Absolutely!  Your personal injury claim cannot be settled without your express approval and acceptance of any offers conferred by the insurance carrier(s).

Can my personal injury case be litigated in any County in Pennsylvania regardless of where it happened?

This is a very complex question which lawyers in Pennsylvania argue over on a daily basis.  In order file a lawsuit in a federal court in Pennsylvania (Eastern, Middle or Western District courts) there has to be jurisdiction in the Commonwealth of Pennsylvania.  This can be explained in detail by one of our lawyers.  In order to file a lawsuit in state court, a court in one of the 67 counties in Pennsylvania must have jurisdiction over the defendant (responsible party) where the injured victim’s claims are being brought. This can be satisfied if Pennsylvania has sufficient contacts over the defendant, for example, if the accident occurred in Pennsylvania or if the defendant owns property, maintains offices or resides in Pennsylvania.  Once jurisdiction rests in Pennsylvania then a determination must be made as to where (which county) the lawsuit should be filed.  Generally the lawsuit can be filed in the county where the accident occurred or in the county where the defendant owns property, maintains offices or resides.  There are statutory exceptions (legislative laws) which predetermine the county in which a lawsuit may be filed in certain types of cases.  In medical negligence cases the lawsuit has to be filed in the county in which the negligence took place and if the claim is against governmental agencies (the Commonwealth, Cities, Municipalities, Boroughs, Townships, etc.) it must be filed in the county in which the accident occurred.  Due to the complexities of the federal, state and local county rules of civil procedure it is strongly recommended that you consult with a lawyer immediately after an accident to understand your rights.