Toolkit · Tort

The Auto Injury and Insurance Claim Toolkit

42 U.S.C. § 1395

Type
Toolkit
Jurisdiction
National
Date
2026-02-25
Topic
Tort

This toolkit assembles the working materials for a motor vehicle injury claim: the authority map, a scene card, a preservation letter, a coverage stack worksheet, an adjuster response script, a treatment documentation protocol, a damages model, a lien and allocation module, a demand package index, and a UM/UIM consent sequence. It is organized for retrieval rather than reading. Modules cover the evidence that expires within days, the comparative fault systems, the two documents the adjuster wants and how to decline them, the causation and preexisting condition fight, the collateral source question that can halve or double economic damages, the Medicaid trilogy that makes settlement allocation decisive, the consent-to-settle trap that forfeits more serious claims than any other error, special defendants, no-fault thresholds, and bad faith. Model letters, a state research sequence, and practice notes by role are included.

The Auto Injury and Insurance Claim Toolkit

Tort > Personal Injury | Published 25 February 2026 - Updated 28 August 2026 | UpLaw - uplaw.us

Module 2 fits on an index card and belongs in a glove compartment. Nobody reads an article about evidence preservation while standing on a shoulder with a dying phone.

Keywords: scene card, preservation, coverage stack, consent to settle, treatment gaps, allocation, liens, release

How this toolkit is organized

Sixteen modules, each usable alone. Companions:

Module 1 — The authority map

Authority What it supplies
42 U.S.C. § 1395y · 42 C.F.R. part 411 Medicare secondary payer recovery; conditional payments
42 U.S.C. § 1396p Medicaid recovery
Ahlborn, 547 U.S. 268 (2006) Recovery limited to the medical-expense portion
Wos v. E.M.A., 568 U.S. 627 (2013) No irrebuttable statutory allocation
Gallardo v. Marstiller, 596 U.S. 420 (2022) Reaches future medical allocations
29 U.S.C. § 1132 · § 1144 ERISA reimbursement; preemption
26 U.S.C. § 104 Physical injury damages excluded from income
Fed. R. Evid. 702 · 703 · 704 Expert admissibility, bases, ultimate issue
Daubert, 509 U.S. 579 (1993) · Joiner, 522 U.S. 136 (1997) · Kumho Tire, 526 U.S. 137 (1999) · Frye, 293 F. 1013 (1923) Causation gatekeeping
Fed. R. Civ. P. 26 · 35 Expert disclosure; defense examination
Fed. R. Civ. P. 68 · Fed. R. Evid. 408 Offer of judgment; compromise communications
9 U.S.C. § 2 · § 10 UM/UIM arbitration; narrow review
15 U.S.C. § 1011 · § 1012 Insurance regulated by the states
49 U.S.C. § 30118 · 49 C.F.R. part 573 Defect and recall, where a component failed
Kokkonen, 511 U.S. 375 (1994) Preserve enforcement authority over a settlement

Module 2 — The scene card

Print this. Glove compartment.

SAY: "I don't know yet — I'm shaken up." DON'T SAY: "I'm fine." · anything about speed or fault.

PHOTOGRAPH — four, ninety seconds:

  1. Both vehicles in final position
  2. Point of impact on each
  3. Other vehicle's plate and any company name
  4. Intersection, signals, lane markings

ALSO: the other driver's license and insurance card · names and numbers of any witnesses · nearby businesses with cameras.

TELL THE OFFICER: the mechanism, and your symptoms. Get the report number.

THEN: medical evaluation the same day.

Module 3 — The evidence that expires

Evidence Available Preserve by
Third-party video Days–2 weeks Written request, immediately
Commercial dashcam / telematics Weeks–months Preservation letter
Event data recorder Until the vehicle is destroyed Do not authorize salvage
The vehicles Crushed within weeks Written instruction to the insurer
Independent witnesses Within the hour Names at the scene
Roadway evidence Hours–days Scene photographs
Visible injuries Days–weeks Dated photographs, repeatedly
Driver cell records Months Preservation letter, then subpoena
Hours-of-service / dispatch Months Preservation letter to the employer

Spoliation sanctions require that a preservation demand was actually made.

Module 4 — Coverage stack worksheet

Coverage Carrier Limits Notes
At-fault liability Usually the practical ceiling
At-fault employer / commercial Far higher limits
Rideshare or delivery platform App status at impact determines the tier
Your liability
Your UM Hit and run; uninsured
Your UIM The coverage that matters most
Your MedPay Fast, no fault, modest
PIP (no-fault states) Which threshold applies?
Resident relative's policy
Policy on any vehicle occupied
Umbrella, either side
Health insurance Self-funded ERISA?

Also determine: stacking permitted? · UIM setoff or stacked on top? · consent-to-settle clause? · arbitration clause?

Read the policy, not the declarations page.

Module 5 — Comparative fault

System Effect
Pure comparative Reduced by the plaintiff's percentage, even at 90%
Modified, 50% bar No recovery at 50%+
Modified, 51% bar No recovery at 51%+
Contributory Any plaintiff fault bars recovery entirely

In a modified jurisdiction, the fight over 45 versus 55 percent is the case.

Recurring allocation arguments: sudden stop · following distance · speed · failure to signal · seatbelt non-use, admissible in some states and excluded in others.

Module 6 — Adjuster response script

Recorded statement: "I'm not prepared to give a recorded statement today. I'll provide the basic facts in writing." Then: date, time, location, vehicles, that you were injured. Nothing about severity, fault, or speculation.

Medical authorization: "I decline the general authorization. I'll provide records for treatment relating to this collision, or sign an authorization limited to [providers] for [dates]."

Limits: "Please confirm the applicable liability limits in writing."

Remember: you must cooperate with your own insurer; you generally need not give a recorded statement to theirs.

Module 7 — Treatment protocol

  • [ ] Evaluation the same day
  • [ ] Report every symptom at the first visit
  • [ ] No gaps — if unavoidable, document the reason in writing to the provider
  • [ ] Attend every appointment; fill every prescription
  • [ ] Daily symptom journal: what hurts, what you could not do, appointments
  • [ ] Dated photographs of visible injuries
  • [ ] Keep every receipt: prescriptions, mileage, devices, household help
  • [ ] Obtain a causation and prognosis opinion from the treating physician
  • [ ] Stop posting on social media; do not delete existing posts

The three patterns the defense argues: the initial gap · gaps during treatment · non-compliance.

The honest complication: claims are penalized for poverty when treatment is missed for cost or transport. The only correction is contemporaneous documentation of the reason.

Module 8 — Causation and the preexisting condition

Everyone over thirty has degenerative changes on imaging. The defense writes itself.

The plaintiff's framework: the eggshell plaintiff rule plus aggravation — the collision converted an asymptomatic condition into a symptomatic one.

What proves it: prior records showing no treatment for the same complaint · a treating physician's opinion tied to the mechanism · comparative imaging · consistent contemporaneous symptom documentation.

Producing the prior records voluntarily is stronger than having them extracted by subpoena.

Module 9 — Damages model

Economic: past medical · future medical · past wage loss · lost earning capacity · out-of-pocket.

The collateral source question — answer first. Billed, paid, or written-off? This can halve or double the economic component.

Non-economic drivers: objective findings · duration · permanence · specific life disruption · venue.

Reducers: comparative fault · policy limits · treatment gaps · prior claims · inconsistent statements · witness presentation.

There is no multiplier. "She coached her daughter's team for six years and has not since" persuades; "she was in pain" does not.

Module 10 — Lien and allocation module

  • [ ] Medicare — conditional payment amount obtained and resolved
  • [ ] Medicaid — Ahlborn / Wos / Gallardo analysis
  • [ ] ERISA plan — plan document obtained, not the summary
  • [ ] Private health insurer subrogation
  • [ ] Workers' compensation lien
  • [ ] Hospital and provider liens
  • [ ] Child support arrears
  • [ ] Written allocation: past medical / future medical / wage loss / non-economic
  • [ ] Reductions negotiated before the settlement is final
  • [ ] Tax treatment confirmed — 26 U.S.C. § 104
  • [ ] Special needs trust or structure where a claimant receives means-tested benefits

After Gallardo, an unallocated lump sum invites the largest possible lien.

Module 11 — UM/UIM consent sequence

  1. Obtain the liability carrier's limits disclosure and offer in writing.
  2. Send the UIM carrier a written consent-to-settle request, attaching the offer and the medical documentation.
  3. Wait for a written response — consent, or a substitute payment preserving subrogation.
  4. Only then execute the liability release, drafted so it does not release the UIM claim.

Skipping step 2 can forfeit the entire UIM claim. It is the most common way a serious injury with a minimum-limits tortfeasor becomes uncompensated.

Also check: hit-and-run police reporting requirement · notice and cooperation conditions · exhaustion · setoff · stacking · arbitration.

Module 12 — Model letters

Preservation

"This concerns a collision on [date] at approximately [time] at [location]. A claim is anticipated. Please preserve, and suspend automatic deletion of, all surveillance and dashcam video, telematics and GPS data, event data recorder information, driver qualification and hours-of-service records, dispatch and maintenance records, and communications concerning this collision, for [date range]. Please confirm preservation in writing."

UIM consent request

"I am insured under policy [number]. On [date] I was injured by [driver], whose liability carrier has offered its limits of $[amount] (correspondence enclosed). My damages exceed that amount (records and bills enclosed). I request your written consent to accept the liability settlement, or alternatively that you advance that amount to preserve your subrogation rights. Please respond in writing within [N] days."

Demand opening

"This is a demand for settlement of [claimant]'s bodily injury claim from the collision of [date]. Liability: [facts; report and photographs at Tab A]. Injuries and treatment: [summary; records and bills, chronologically indexed, Tab B]. Wage loss: [amount; employer statement, Tab C]. Prognosis: [physician opinion, Tab D]. Demand: $[amount], open until [date]."

Property damage caution

"I am willing to resolve the property damage claim. Any release I sign must be limited to property damage and must expressly preserve the bodily injury claim. Please send a release so limited."

Module 13 — Demand package index

Tab A — Liability. Scene photographs · witness statements · police report · citation · telematics or video. Tab B — Injury. Emergency record from the day of collision · all treatment records, chronological · imaging reports · procedure reports. Tab C — Causation. Prior records showing no comparable treatment · treating physician's opinion letter. Tab D — Economic. Itemized bills with a totals page · employer wage statement · receipts. Tab E — Human. Symptom journal excerpts · statements from two people who observed the change. Tab F — Demand. One page: liability summary, damages summary, number, deadline.

A demand consisting of a number and a paragraph produces an offer consisting of a number and a paragraph.

Module 14 — Special defendants

Defendant What changes
Governmental Notice of claim in 60–180 days; statutory damages caps
Federal employee Administrative claim first; separate deadlines
Commercial carrier Higher limits; driver file, hours of service, telematics; short retention
Rideshare / delivery Coverage tier depends on app status at impact
Employer of the injured Workers' compensation runs in parallel, with a lien
Dram shop Available in many states, with short notice provisions
Vehicle manufacturer Product claim; preserve the vehicle
Minor claimant Tolling; court approval of settlement; restricted funds

Module 15 — State research sequence

  1. Comparative fault system. 2. No-fault or tort, and the threshold. 3. Collateral source rule. 4. Minimum limits; UM/UIM offer and rejection rules. 5. Stacking. 6. UIM setoff. 7. Seatbelt evidence. 8. Diminished value. 9. Limitations period and governmental notice window. 10. Wrongful death and survival. 11. Dram shop. 12. Policy limits demand requirements. 13. Minor settlement approval. 14. First- and third-party bad faith standards.

Module 16 — Practice notes and three sentences

Injured people. Same-day treatment · no recorded statement · no broad authorization · a daily journal. Then identify every policy, starting with your own.

Claimant counsel. Preservation letters in week one. Coverage investigation before valuation. The Module 11 sequence before any liability settlement. Allocation before any lien negotiation.

Defense and adjusters. The productive discovery is prior claims history and the opposing expert's prior testimony list under Fed. R. Civ. P. 26; the productive motion is the Joiner analytical gap; and a facially reasonable policy limits demand is an exposure question, not merely a valuation question.

Everyone. The cheapest improvement to your own position is more uninsured and underinsured motorist coverage.

"I don't know yet — I'm shaken up."

"I'm not prepared to give a recorded statement today."

"Nothing gets signed until treatment is complete and the liens are resolved."

Module 17 — Two worked claims

17.1 The rear-end collision with a commercial defendant

Facts. Claimant stopped at a light, struck from behind at twenty-five miles an hour by a delivery van. Liability effectively conceded. Cervical strain progressing to a documented herniation; epidural injections; no surgery; $31,000 billed; six weeks missed at $1,150 weekly; commercial policy with substantial limits.

What the first two weeks cost. No scene photographs. No witness information. Treatment on day nine. A recorded statement on day four containing "I'm fine" and "it wasn't that bad." A signed open-ended authorization.

How each is used. The nine-day gap becomes the argument that the herniation predates or postdates the collision. The statement is read against the injection recommendation. The authorization produces a 2019 chiropractic visit, which becomes the Module 8 preexisting-condition case.

What survives. Favorable mechanism, objective imaging, commercial defendant. A genuine mid-five-figure claim, reduced by roughly fifteen to thirty percent — not because the injury changed but because the record did.

The counterfactual. Module 2's four photographs and two witness names, treatment at hour three, Module 6's script, and a daily journal. Same injury, materially larger claim, and every step available to a person with no legal training.

17.2 The minimum-limits tortfeasor

Facts. Serious injury caused by a driver carrying $25,000 in liability coverage. Medical bills $118,000. Claimant carries $100,000 UIM.

The analysis. The liability claim is worth $25,000 and no more. The real case is the UIM claim, and it lives or dies on Module 11.

The sequence that destroys it. Accept the $25,000, sign the standard release the liability adjuster sends, notify the UIM carrier afterward. In most states that is a forfeiture of the entire UIM claim — $25,000 recovered against $118,000 of bills.

The sequence that preserves it. Limits disclosure in writing → written consent request to the UIM carrier → wait for the written answer → then a liability release drafted so it does not touch the UIM claim.

Then Module 10. With Medicare or an ERISA plan having paid, the allocation determines what the claimant keeps, because after Gallardo v. Marstiller, 596 U.S. 420 (2022) the lienholder can reach future medical allocations as well as past.

The lesson. In a minimum-limits case the tortfeasor is nearly irrelevant. It is a coverage case and a lien case, won on paperwork sequencing.

Module 18 — No-fault quick reference

About a dozen states operate a no-fault system, and practitioners from tort states routinely misadvise clients who cross a border.

Your own PIP pays medical expenses and some wage loss regardless of fault. In exchange, suit for pain and suffering is restricted until a threshold is crossed.

Monetary threshold — medical expenses must exceed a stated figure, frequently low enough to be crossed by routine treatment.

Verbal threshold — the injury must meet a statutory description (death, dismemberment, significant disfigurement, fracture, permanent loss of a body function, "serious impairment"). Verbal thresholds generate the litigation, because the phrases are construed case by case.

Choice no-fault. A few states let insureds elect limited tort (cheaper premium, restricted right to sue) or full tort. People choose the cheaper option at the counter without understanding they traded away pain-and-suffering recovery, and discover it after a serious collision. Check your declarations page today.

PIP does not end the case. Economic losses above PIP limits remain recoverable from the at-fault driver, and property damage sits outside the system entirely.

Coordination. PIP is frequently coordinated with health insurance for a lower premium, which changes which carrier pays first and therefore which lien applies under Module 10.

Module 19 — Bad faith, briefly

Third-party bad faith. A liability insurer defending its insured unreasonably refuses a settlement within limits, and an excess judgment follows. The insured holds the claim, commonly assigned to the claimant in resolution. This is why a properly framed, time-limited policy limits demand matters — it creates the record that the opportunity existed.

First-party bad faith. Between an insured and their own carrier — most often in UM and UIM claims, where the insurer is simultaneously fiduciary and adversary. Standards vary widely; some states recognize no tort at all and confine the insured to contract remedies plus a statutory penalty.

What establishes it in practice: unexplained delay · failure to communicate a demand to the insured · a valuation unsupported by the file · failure to investigate before denying · reliance on a paper medical review that never examined the claimant and never addressed the treating physician's findings.

The instruction: create the record in writing. A facially reasonable demand, supported by documentation, with a defined response window, converts a coverage dispute into an exposure question.

Module 20 — Where this connects

Vehicle transaction problems. Where the crash reveals a defect, a lemon history, or a title issue, see The Most Expensive Contract Most People Never Read: Buying and Financing a Car, Pursuing a Lemon Law or Warranty Claim: A Practical Checklist, and The Motor Vehicle Consumer Toolkit.

Medical treatment that went wrong. Where the injury was worsened by the treatment of it, a separate claim with entirely different gates applies — see Evaluating and Filing a Medical Malpractice Claim: A Practical Checklist and The Medical Malpractice and Health Care Liability Toolkit.

Disability. Where the injury ends employment, the benefits track runs in parallel and the medical documentation serves both — with the caution that statements about work capacity in one proceeding are read in the other. See Five Steps and a Grid: How the Government Decides Whether You Are Disabled and The Social Security Disability Toolkit.

Debt. Medical bills unpaid during a pending claim go to collection regardless of the claim, and the defenses are separate. See Disputing a Credit Report Error and Defending a Debt Collection Suit: A Practical Checklist and The Consumer Debt and Credit Reporting Toolkit.

Resolution. Nearly all of these cases settle. See Mediation Advocacy and Negotiation: A Comprehensive Guide to Preparing, Framing, and Closing a Settlement and The Mediation and Negotiation Toolkit.

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