Ian is slowing for a stop sign in a residential neighborhood in Charleston when he is rear-ended. Ian feels immediate neck and back pain as soon as the collision occurs.
The police come and give the other driver a ticket. They ask Ian if he wants an ambulance, and he says no.
Ian goes to see his family doctor the next morning, and the doctor diagnoses back strain and tells Ian to rest for a few days. Ian rests, but his upper back pain gets worse, and he starts having headaches and insomnia. He returns to the doctor, who now diagnoses whiplash and post-concussion syndrome. He gives Ian a referral to a concussion specialist and tells Ian to schedule an appointment if his headaches don’t improve in a week.
Ian waits two weeks, and his headaches do improve. His neck and back still hurt, and so he begins seeing a chiropractor. He sees the chiropractor three times a week for six weeks. By three months post-accident, he is feeling better and almost like normal. For the most part, his car accident injuries are a thing of the past.
Ian is a carpenter. He had a doctor’s note to stay out of work for six weeks. Unfortunately, when he returned to work after six weeks, his company said that they had replaced him and had no room for him. It took Ian another five weeks to find another job as a carpenter.
A statute of limitations is a law that sets a deadline for filing a lawsuit. In South Carolina, the statute of limitations for lawsuits stemming from injuries and property damage is three years. This means, if you were involved in a car accident as a driver, passenger, or pedestrian, you have three years from the date of the accident to file a lawsuit in the state’s courts. The same three-year deadline applies whether the lawsuit seeks recovery for injuries, vehicle damage, or both.
Ian should make sure that the adjuster has all of the information necessary to evaluate who was at fault in the accident. That is important in any case, even a case like Ian’s, where liability will be pretty straightforward given that it was a rear end collision and the other driver got a ticket.
South Carolina follows what is called a “modified comparative fault” rule in personal injury cases (including car accident claims) where the person bringing the claim was also partially at fault for the underlying accident. Under this rule, the claimant's total damages award is reduced by whatever percentage of the “fault” the judge or jury believes is theirs.
So, if, for example, you were awarded $400,000 in damages, but were found 10% at fault, your damages would be reduced to $360,000. However, if you were found to be more than 50% at fault, you would receive no damages whatsoever under South Carolina's shared fault rules.
It's important to note that the other driver may carry only the minimum amount of liability insurance required under South Carolina car insurance laws. If your medical bills and other damages exceed those minimums, but the other driver carries no additional coverage, then you may want to talk to an attorney about your options.
In Ian’s case, his out-of-pocket (compensatory) damages total $20,500. The breakdown looks like this:
Remember that Ian was out of work for six weeks, but, when he went back to work, his employer had given his job to someone else. In general, an employer is not legally required to keep an employee’s job open while he/she recovers from a non-work-related injury. Because he lost his job due to the accident, Ian has a reasonable argument that he is entitled to eleven weeks of lost earnings (6 weeks disability plus 5 weeks to find another job).
Ian and his attorney decide that another $25,000 in damages is appropriate to compensate for Ian’s pain and suffering in connection with the accident, and they make an initial demand of $45,000 to settle the claim. After negotiating with the adjuster, Ian accepts $27,500 as a final settlement.
As mentioned above, you want to settle your claim or file a lawsuit (or at least turn the case over to a lawyer) well before the statute of limitations time period runs out. But you also don’t want to settle it too early -- meaning before you are either fully recovered or are as good as you are going to get. This is known as reaching "maximum medical improvement" or MMI. In Ian’s case, he was at MMI, and so he was ready to settle. Learn more about Settling a Car Accident Case.