Personal Injury: Claims vs. Lawsuits

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Victims who have suffered a personal injury, they generally have two options for pursuing compensation for their injuries and damages: filing an insurance claim or filing a personal injury lawsuit. While there are some similarities between these two methods, there are also some significant differences.

You may be considering taking legal action when you have been injured due to someone else’s negligence. But what is the best way to do so? Should you file a personal injury claim vs lawsuit? The answer to this question depends on several factors, including the severity of your injuries, the number of damages you have suffered, and the state in which you live.

You can learn more about personal injury insurance claims and lawsuits in a free consultation with a Southern California personal injury lawyer at Duque Law. We are here to answer your questions and discuss how we may be able to assist you during your time of need.

But you still may be curious about the difference between a claim and a lawsuit so below, we will compare personal injury claims and lawsuits so you can go into a consultation with a little more insight.


What is Negligence?

Negligence is the failure to act with reasonable care or acting in a manner in which a reasonably careful individual would not when facing similar or the same circumstances to protect others or themselves from property damage, bodily injury or death. If a person violates their duty to you, the standard of conduct applicable to the situation, then the law requires the defendant to compensate the individual who was injured or experienced loss.

Usually, negligent conduct involves an action that leads to damages. When driving, the standard of conduct is that you drive in line with the rules of the road and that you stay attentive in case an emergency situation arises. Driving negligently might include driving drunk, weaving between two lanes at once, failing to allow pedestrians to safely cross, or not watching the road. Some standards of conduct are established by law, as when a driver is speeding, which makes them “negligent per se” which is negligence because of their illegal activity.


Negligence Has Four Elements to Prove

There are four distinct elements or components of negligence. If you cannot successfully establish each of these elements, you will not be entitled to compensation for your personal injury claim.

For the defendant to be found negligent, their actions must meet the four elements of negligence, which are:

  1. Duty of care
  2. Breach of duty
  3. Causation
  4. Damages

If even one element of negligence is not proven, then the alleged defendant (will not be found liable, and you cannot collect on damages, highlighting the value of having an attorney on your side as soon as possible after your injury to help with your claim.


What Is a Personal Injury Claim?

Personal injury claims arise from tort law. A tort is an act or omission that results in harm or injury to another person. It is basically a civil wrong that results in financial liability for damages. Filing a claim is asserting your right to recover compensation for the harm and damages caused by the other party.

A personal injury claim demands compensation from the at-fault party’s insurance company. The insurance company will investigate the claim, and if they find their policyholder liable, they will offer a settlement.


Filing Claims with Insurance Companies

The claims process starts when you send an insurance company what the legal system calls a demand letter. They can respond and acknowledge your claim by saying they will pay it or that they reject the claim.

Your claim might lead to a jury verdict if the insurance provider rejects the claim, or a settlement agreement. Before you get to that point, though, you must tell the insurance company all about what happened.

You will not usually demand a specific amount. The insurance company will determine how much they should pay you based on your accident or illness.

You are compensated for your injury and receive money for your:

  • Medical bills
  • Lost wages and benefits
  • Physical pain and suffering
  • Permanent impairment or disability
  • Reduced future earning potential
  • Mental anguish and emotional distress
  • Loss of enjoyment of life and quality of life

If the insurance company disputes liability for the cause of the action and claims that you were at fault or partially at fault for the cause of the crash, your personal injury attorneys may advise you that filing a personal injury lawsuit is necessary to protect your right to fair compensation.


What Is a Personal Injury Lawsuit?

A personal injury lawsuit is a civil action that is filed in court. When you file a lawsuit, you ask the court to award you damages. A lawsuit is usually only necessary when a personal injury claim has been denied or the insurance company offers an unfair settlement. Lawsuits can take longer to resolve than personal injury claims, sometimes taking years.

Lawsuits are incredibly expensive and time consuming, and litigation should be reserved for only the most serious of matters. When you file a lawsuit, you allege specific facts that result in a cause of action against another party.

A lawsuit generally contains:

  • A summary of the facts of the cases
  • The allegations of wrongdoing by the other party
  • A discussion of the law holding the party financially liable for damages
  • A description of your injuries and damages
  • A demand for monetary compensation for your damages

When you file a lawsuit, you will be required to serve a copy of the lawsuit to the defendant (the party who caused your injury). The defendant will then file an answer responding to your allegations. In most cases, the insurance company for the at-fault party hires a lawyer to defend the lawsuit.

The litigation process includes several phases. After the initial pleadings are filed and served on the parties, the parties engage in discovery (the process of obtaining relevant information from the other party.)

After the discovery phase is completed, the parties may enter settlement negotiations or mediation. Many lawsuits are settled before trial through voluntary settlements or court-mandated alternative dispute resolution.

If the parties do not agree to a settlement, the case proceeds to trial. Each party presents their case to the jury. The jury deliberates and returns a verdict. Either party may appeal the verdict if they disagree with the jury’s decision.


How Do You Know If You Should File a Personal Injury Claim vs Lawsuit?

If you have been injured due to someone else’s negligence, you may wonder if you should file a personal injury claim or lawsuit. The answer to this question depends on several factors, including the severity of your injuries, the number of damages you’ve suffered, and the state in which you live.

A personal injury claim may be the best option if you have suffered minor injuries and your damages are relatively small. If you have suffered serious injuries or your damages are significant, you may want to consider filing a personal injury lawsuit.

Of course, other factors are to consider, such as the statute of limitations and the at-fault party’s insurance coverage. It is important to consult with an experienced personal injury attorney to discuss your legal options and determine the best course of action for your case.


  • Statute of Limitations:

The statute of limitations is the period in which you must file a personal injury claim or lawsuit. In most states, the statute of limitations is two years from the date of the injury. However, exceptions exist, such as when the injury is not discovered until later.

It is important to be aware of the statute of limitations in your state and to file a personal injury claim or lawsuit before the period expires. If you don’t, you may be barred from recovery.


  • At-Fault Party’s Insurance Coverage:

Another factor to consider is the at-fault party’s insurance coverage. If the at-fault party has liability insurance, their insurance company will usually be responsible for paying your damages.

However, if the at-fault party does not have liability insurance, you may have to file a personal injury lawsuit to recover compensation. In this case, you would likely sue the at-fault party directly and try to collect damages from them directly.


Should You Speak with an Attorney?

If you have suffered a substantial injury as the result of another party’s negligence, the laws of the state of California allow you to seek damages to recover from your injuries. And you should.

Often, people underestimate the impact an injury will have on their lives. Or perhaps they just don’t think it will be worth the trouble of making a claim.

Our legal team at Duque Law Group is comprised of award-winning and nationally recognized trial lawyers who collaborate with nurses, doctors and medical experts regularly. Though we understand the nature of injuries, we are not physicians, and always encourage victims to seek treatment as soon after an accident as possible, and to follow up and heed their doctors’ advice.

Call us now at 1-877-241-9554 to learn more about your options. A free consultation is just a phone call away.


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