Interviewer: What makes it a good case versus a case that the insurance company is going to defend, what are some of the factors?
Guy S. DiMartino: I look at cases as a three-legged stool. The first leg of the stool is the facts of the accident, the facts of the car accident. That's called a liability determination. Who's at fault for the accident? If it's a rear end collision, you're sitting at a stoplight and you've been sitting there for a few seconds and somebody doesn't hit the brakes because they're texting and they run into rear end, that's a clear liability accident. However, if you both go into an intersection and you have the green light and the other person on the other side says they have the green light and there's a T-bone crash in the middle of the intersection and there's no witnesses, that becomes a disputed liability case. You're saying or my client is saying, “Hey, I had a green light”, the other party is telling their insurance company, “Hey, I had a green light”, and that has to be sorted out. So, that could be a liability or a factual dispute.
In a Disputed Liability Case Insurance Companies Could Accept only 50% of the Liabilities or None at All
So, you really can't even negotiate a case with an insurance carrier until you come to some determination of where they stand on the liability issue. Is the insurance company going to accept full responsibility for their insured? Or is the insurance company only going to accept 50 per cent responsibility for their insured? So, in the middle of the intersection type of collision, if you don't have any physical evidence showing the timing of the light or a witness, the insurance company might be looking at that case as a fifty-fifty case. What they might be saying is, “Yes, your claim might be worth $100,000 but we think that we're only 50 per cent responsible, so we only can offer you $50,000”. So, you always have to determine liability or the facts of the crash.
There are Three Types Of Comparative Fault in the United States
Interviewer: Is Indiana a No Fault state but liability can be shared? What do you call it?
Guy S. DiMartino: Yes. There are three types of comparative fault. New York and Florida have something called pure comparative fault; where the plaintiff can be 99 per cent at fault and still receive money based on the fact that the defendant was 1 per cent at fault. So, for instance, if you have a $2 million claim and, you know, the other person has a very low insurance policy and you, as the plaintiff, are 99 per cent at fault, you'll still be able to get that insurance money.
Indiana is different. Indiana is a modified comparative fault state, which is difficult in some cases, like in slip and fall cases, because if the plaintiff or the injured person is found to be more than 50 per cent at fault, they get nothing.
It is Imperative for the Client Not to Withhold any Information from Their Attorney
Interviewer: Is it important for the clients not to withhold any information from you?
Guy S. DiMartino: Right. The thing is I want to know everything. I am not here to place judgment; I'm here to protect you. I'm here to walk you through this minefield. I am here to take you through the maze. If you don't tell me everything, I can't protect you because I don't know. I would rather know this information today because I can deal with it than on the second day of trial where I can't deal with it.