Important Facts Insurance Companies Don’t Want You to Know
James Beard is one of the Northwest's leading maritime personal injury lawyers. He and the law firms he has built over the last 30 years have handled thousands of claims for injured fishermen and fish processors. As a result of that experience, Beard has seen first hand, many times, the facts that marine insurance companies don’t want injured fishermen and fish processors to know about. If you have questions about your rights to compensation or about how your claim is being handled by a maritime insurance adjuster, you should contact an experienced maritime injury lawyer to discuss your claim. Set forth below are some of the important facts that all injured seamen and fishermen should know about. Injured Fishermen Have Valuable Rights To Compensation for Their Injuries. Injured fishermen, in almost all cases, are entitled to benefits under Federal maritime law and the Jones Act. Maritime employers, big and small, are required to provide medical coverage for injured crewmen, and in cases of negligence or unseaworthiness which cause injury, the employer and vessel owner are subject to paying the injured worker compensatory damages.
Injured crewmen and commercial fishermen are not limited to workers compensation remedies. Injured fishermen are entitled to receive full monetary compensation for their injuries under maritime law. If you have been injured through negligence or unseaworthiness, you may be entitled to valuable compensation for lost earning capacity, lost past and future earnings, pain and suffering, disability, disfigurement, loss of enjoyment of life, medical expenses, vocational retraining expenses and more. Never trust the insurance adjuster to tell you what is fair compensation for your injuries.
Never Sign Any Documents About Your Maritime Injury Claim Without Consulting An Experienced Maritime Lawyer. An injured fisherman or fish processor should never sign any documents about their injury claim without first consulting an experienced maritime lawyer. Do not be fooled into giving up your valuable rights. The decks are slanted in the insurance company’ favor if you don’t have a lawyer on your side to protect your rights.
Your Medical Bills Must Be Paid. An injured fisherman or fish processor’s employer, in almost all cases, is required to pay all of an injured crewman’s reasonable and necessary medical expenses. This is a right owed to an injured fisherman, and Federal maritime law requires your employer to pay your medical bills.
You Have the Right to Choose Your Own Doctors. You have the right to select your own doctors and seek reasonable second opinions. The vessel owner and the employer cannot require that you only be treated by doctors they choose. As an injured seaman, you are entitled to receive the best medical care possible under the circumstances as long as that care is reasonable. Your employer may try to ask you to see a doctor who they know will not prescribe medical treatment or diagnostic tests, or persuade you to see a doctor who may attempt to return you to work before your medical condition is fixed and stable. The single most important thing for an injured fisherman is getting the best medical care possible so that he can achieve the maximum medical recovery possible. Insurance companies save money by having injured workers get cheap care; cheap medical care is, in most cases, not the best medical care.
You May Be Entitled Compensation Even Though Your Have A Preexisting Injury. Working as a commercial fisherman is hard work. Many fishing vessel crewmen and fish processors have preexisting medical conditions, and it not uncommon for a crewman to aggravate a preexisting injury while working aboard his vessel. If your prior injury has been aggravated as a result of negligence or unseaworthiness of the vessel, you are entitled to compensation for the increase in your injury. The burden lies with the vessel and employer to segregate damages between the old injury and the new injury; segregating damages is often times very difficult to do.
The Insurance Company Wants to Catch You In a Lie. Experienced maritime injury lawyers know credibility is a critical factor in getting fair compensation for their clients. A frequent mistake an injured maritime worker makes in pursuing a claim is not providing full, accurate, and complete information regarding their medical history, how the accident happened, and overstating the extent of disability caused by a shipboard accident. Before making a mistake that can negatively impact your rights to compensation for your injuries, consult with a lawyer experienced in handling fishing accidents and maritime injury claims. Should your case go to trial, an experienced maritime injury lawyer will make a motion to exclude all irrelevant and prejudicial evidence that is unrelated to your claim.
Failure to make an accurate disclosure can seriously impact the value of an injury case, and the insurance company wants to trap you into making that mistake. Investigators for insurance companies intentionally ask injury victims for information they know cannot be admitted into a trial, hoping the injured worker will mistakenly believe giving inaccurate information is necessary to obtain medical care or compensation.
There are few bad facts about an injury case that an experienced maritime lawyer cannot handle. The law is on the side of the injured fisherman, as long as he tells the truth. That is why the insurance company asks for recorded statements and accident reports. Similarly, it is why the doctors they hire ask lengthy questions about your medical history, including questions about unrelated illnesses and injuries. Should your case go to trial, the Court will not let into evidence irrelevant or prejudicial facts that do not have relevance to your case. However, failure to accurately disclose facts during the investigation of your claim about your past work history, past medical history, preexisting injuries, criminal records, etc. has the potential to be possibly admitted to impeach your testimony and impact your credibility. The insurance company will argue that this evidence, that would otherwise be excluded from evidence, should be admitted to show that the injured crewman cannot be trusted to tell the truth and should not be believed on the facts that are important to the case.
Contributory Negligence Does Not Bar a Fisherman’s Right to Compensation. If a commercial fisherman is contributorily at fault for his own injury, he is not barred from compensation for his injuries. Maritime law has adopted a comparative fault system which recognizes that there may be more than one cause of an injury to a seaman or commercial fisherman. Determining the percentage of fault between the injured crewman and the employer and vessel owner is very complex. Maritime law places a greater burden on the employer to protect their crewman from injury than is placed on the crewman.
Never blame yourself for an injury until you fully understand the legal obligations and duties of the employer and vessel owner. The employer has a duty to provide proper training, an adequate number of men to do the job assigned, equipment free from defects, and a reasonable safe place to work. They must use reasonable care under the circumstances to prevent injuries to their crewmen. You do not have the obligation to anticipate the negligence of a fellow crewman, and you are not negligent when you are following orders and working at the direction of your superior. Don’t accept blame for a shipboard injury accident that is not your fault.
You May be Entitled to Claim Punitive Damages. A maritime employer who willfully and wantonly fails to properly pay maintenance and cure damages may be subject to a claim against them for punitive damages. You may also be entitled to attorney fees for obtaining maintenance and cure benefits that were wrongfully withheld. An employer is required under the law to resolve all doubts and ambiguities as to an injured crewman’s right to maintenance and cure benefits in favor of the seaman. Where there are conflicting medical reports about the need for medical treatment, the employer should resolve the conflict in favor of the injured seaman. Insurance adjusters frequently wrongfully terminate maintenance and cure benefits by sending an injured fisherman to a doctor who they know will cut off medical care or dispute the treating physician’s recommendations. If you feel your maintenance and cure benefits have been terminated improperly, you should consult with a Jones Act or maritime injury lawyer.
The law is currently unsettled as to whether or not an injured fisherman or seaman may recover punitive damages for negligent injury or for injury caused by an unseaworthy condition. These legal issues relating to punitive damages are now set to be resolved by the Washington State Supreme Court and the Federal Ninth Circuit Court of Appeals. It appears likely that punitive damages may be allowed for injuries caused by egregious unseaworthy conditions that unnecessarily expose crewmen to serious injuries.
You Are Entitled To A Daily Living Allowance While Recovering From Your Injuries. An injured seaman’s employer, in almost all cases, must pay “maintenance.” Maintenance is a daily living allowance that must be paid to an injured seaman while he is recovering from his injury. The rate of maintenance varies from case to case, but the rate set in your contract for maintenance is not binding upon the injured seaman. The maintenance rate should be set based upon the reasonable expenses for a single man or woman living in the local area where the injured seaman lives. The injured seaman’s actual expenses are evidence of what may be reasonable. However, a seaman is always entitled to a reasonable rate of maintenance. Maintenance expenses include payment of room, electricity, utilities and food. Insurance companies often improperly try to pay the lowest maintenance rates possible to an injured seaman.
Injured Seamen Are Entitled To Payment of Their Full Employment Contract. If you are injured and unable to complete your shipboard duties before the completion of your employment contract, your employer must pay you for the full contract term, whether you finish the contract or not. The employer must pay the reasonable transportation costs of returning an injured seaman to the point of hire.
The Insurance Adjuster Is Not Your Friend and Is Working to Minimize What Must be Paid To You For Compensation. Maritime insurance adjusters work for the insurance companies. Their job is to pay you as little compensation as possible. The insurance adjuster is not on your side and is not “independent.”
The insurance adjuster is taking statements from witnesses to attempt to establish the accident was your fault. The insurance may attempt to get evidence adverse to your claim from your treating doctors. The insurance adjuster is probably discussing your medical care and treatment with your doctors without your knowledge. The insurance company may attempt to get admissions from you that will impact your ability to receive fair compensation. The insurance adjuster takes detailed notes of each conversation they have with an injured crewman and their spouses.
Don’t Agree To Reduce Your Settlement By an Unreasonable Amount for Federal Taxes. As a general rule, maritime injury claims for personal injuries under the Jones Act are not subject to taxation. However, under Federal maritime law, your compensation for lost wages, past and future, is arguably subject to reduction for the impact of taxes. An injured seaman is entitled to compensation for his net lost wages after taxes. However, insurance adjusters frequently improperly calculate the tax rate, applying nearly two to three times the amount that is proper. Pain and suffering awards to seamen are not subject to taxation. In cases involving significant damages for past and future lost wages, complex calculations are needed to determine what effective tax rate should be applied to the lost wage portion of the claim.
You Can Hire An Experienced Maritime Injury Lawyer On a Contingency Fee Basis to Represent You. Experienced maritime injury lawyers represent injured fishermen, fish processors and seamen on a contingency fee basis. No fees are owed the lawyer until the case is completed and you have recovered damages. If there is no recovery, you will owe the lawyer no fees. When you are looking to hire a maritime injury lawyer, be sure to fully understand your contingency fee agreement.
The Insurance Company and the Vessel Owner Don’t Want You To Hire An Experienced Maritime Lawyer. They know that injured crewmen who are represented by lawyers familiar with Federal maritime laws obtain fair compensation for their clients. Don’t be lowballed by the insurance company into a settlement that is unfair. A contingency fee allows you to have an experienced maritime lawyer on your side to get you what is fair.