Personal Injury

Who Can File a Personal Injury Claim?

By David Goguen, J.D., University of San Francisco School of Law

Almost all personal injury claims are filed by the person who was injured in the underlying accident or incident. In the context of some common injury scenarios, that means the person who files the claim is:

  • the person who was driving the car that was rear-ended, or

  • the person who slipped and fell on the puddle of water in the store aisle, or

  • the person who was bitten by the loose dog.

You get the idea. The person who suffered the injury usually brings the claim. (There are some specific kinds of personal injury claims that may be brought by someone other than the person who was directly involved in the accident; more on this below). Now, let's answer a few spin-off questions that frequently come up.

Do You Need a Lawyer to File a Personal Injury Claim?

Whether we’re talking about a claim that is filed with an insurance company after an injury that is covered by a policy, or a lawsuit that is filed in civil court after an accident, you don’t technically need a lawyer to file a personal injury claim. You’re free to represent yourself in court, and to negotiate on your own behalf with the insurance company and others, if you feel comfortable and confident doing so.

Having said that, it is almost always in your best interests to discuss your situation with an experienced personal injury lawyer to get an understanding of your options and the best way to protect your rights. Especially if your injuries are significant -- or the other side is putting up a fight when it comes to who caused the accident or the extent of your injuries -- consulting with a lawyer is a smart move.

Do You Need Permission to File a Personal Injury Claim?

In most instances, you don’t need permission or any kind of prior authorization to file a personal injury claim. If we’re talking about an injury-related insurance claim, the underlying incident just needs to be covered by the policy. For lawsuits, you don’t usually need to do anything other than file the initial papers (the "complaint" and "summons") and serve the defendant with copies.

There are exceptions. In some states, for example, if you want to file a medical malpractice lawsuit, you need to jump through certain procedural hoops. And you always need to comply with lawsuit filing time limits (these are dictated by state laws known as statutes of limitations).

Finally, if you’re filing an injury claim against a government entity or agency -- maybe your car was hit by a city bus, for example -- you will need to get permission, in a sense. You’ll need to file an administrative document that lets the government know about your claim, and you’ll need to comply with pretty strict deadlines.

Personal Injury Claims by Family Members and Others

As we discussed above, the person who was directly involved in the underlying accident is almost always the person who files a personal injury claim. But there are a few situations where a personal injury claim -- or to put it more accurately, a claim arising from an accident or other incident -- may be brought by someone other than the person who was directly involved in the underlying incident. Let’s look at a few examples.

When an accident results in someone’s death, a “wrongful death” lawsuit can be filed by a representative of the estate of a deceased person, or by their close family members, against the person responsible for the accident.

A “loss of consortium” claim can sometimes be brought by a close family member or other person whose relationship with the injured person has been damaged as a result of the underlying accident.

A claim for “negligent infliction of emotional distress” may sometimes be brought by someone who witnessed an accident involving a close family member. However, in states where this kind of injury claim is allowed, often the person making the claim must also have been in the “zone of danger” him or herself. Merely being at the scene may not be enough.

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