Answers to help you feel informed, not overwhelmed
We’ve compiled specific questions that often arise in serious injury cases. If you don’t see your question here, we welcome a direct conversation.
You may still recover compensation. In California, your compensation can be reduced based on your share of fault, but partial responsibility does not prevent you from filing a claim.
As soon as possible. Early involvement allows your legal team to secure evidence, guide medical documentation, and protect you from insurance missteps.
Strong cases are supported by:
Not necessarily. You do not need to finish treatment to begin the legal process, but your long-term prognosis should be understood before settling to ensure all future damages are included.
Obviously, everyone would prefer not to have to pay fees to an attorney in order to obtain the full value of their claim. Unfortunately, insurance companies do not feel any pressure or motivation to offer a claimant who does not have an attorney the full value of their claim. Thus, in deciding to hire an attorney, you need to consider the value of your time spent in fighting the insurance company. If you end up with the same amount of money in your pocket by hiring an attorney, because your attorney does all of the legal work, you save yourself a lot of your valuable time, energy and hassle by retaining an attorney.
If the amount in controversy is less than the jurisdictional monetary limits for Small Claims Court in their county (generally $7,500), it is often more economical for you to attempt to settle your claim yourself. Insurance companies generally find it financially beneficial to settle claims under $7,500 with unrepresented claimants so that they can avoid paying hourly attorney’s fees to defense counsel that may approach or even exceed the value of the case. However, the more the value of a case exceeds $7,500, the more difficult it is to convince an insurance company to pay the full value of the case. In Small Claims Court, neither side is allowed to have an attorney appear in court, so it is usually a relatively quick and economical process for resolving claims under $7,500 that is beneficial for both sides. Most counties have Small Claims Court instructions and sometimes free advisors.
I had a client who had constant spine pain from a collision, and because the person who caused the collision had no insurance, she had an Uninsured Motorist claim with her own insurance company. Before hiring me, she tried to settle her claim with her insurance company for two years, and they repeatedly stated that they would make her an offer but never did, so she hired me to handle the claim. Even after I battled with her insurance company for more than a year and they deposed many of her friends and co-workers, their final offer was $125,000. I advised her to proceed to arbitration, and after a bitterly contested arbitration in which the insurance company doctors testimony bordered on unbelievable, we received an award of $390,987.57, more than three times the final settlement offer. Because she had a more significant case, even after paying me attorneys fee, it clearly was the correct decision to hire me to represent her.
California law provides that for incidents involving bodily injury which occurred after January 2003, a plaintiff generally has two years from the date of the incident or collision to settle their case or file a lawsuit. If you do not file a lawsuit within two years of the date of the incident or collision, you will probably lose all your rights to recover any damages. However, this deadline, known as the Statute of Limitations, can vary in certain situations. For example, if a governmental entity (such as a city, BART, an A.C. Transit bus, a public school, a public hospital, etc.) is involved, you are required to file a government claim (not a lawsuit) with the governmental entity within six (6) months of the date of the incident. Your attorney can file this claim for you, or you can do it yourself. However, if you file it yourself and leave out certain necessary information, or do not properly characterize the governmental entity’s liability, the governmental entity may later argue that you did not make a proper claim, and have your claim may be deemed invalid and you will not be able to recover any money. In addition, after the governmental entity rejects your claim (they reject virtually every claim other than small property damage claims), the Statute of Limitations for filing a lawsuit against the governmental entity varies depending upon the manner in which they reject the claim.
Generally, the courts are very strict regarding the Statute of Limitations, and if you have not resolved your claim or file a lawsuit before the Statute of Limitations expires, you lose your right to recover any damages. There are a few exceptions where the Statute of Limitations is tolled (i.e., extended beyond a year), such as if you are incapacitated (for example, in a coma), or if a defendant is out of the state for any period of time before the Statute of Limitations expires. For minors, the time period for calculating the Statute of Limitations does not begin to run until their 18th birthday, so the Statute of Limitations would not expire until they are 20 years old. Nonetheless, it is extremely dangerous to take any risk with the Statute of Limitations, so if you decide that your injury is serious enough to hire an attorney, you should find and retain an attorney as soon as possible. It is also wise to retain an attorney as soon as possible so that evidence can be preserved by your attorney before it fades or is lost. Many attorneys (including myself) are extremely reluctant to become involved in a case in which the Statute of Limitations is about to expire (unless there are major injuries involved). So, if you are going to have an attorney handle your case, the earlier you consult an attorney the better. Even if you believe that the Statute of Limitations may have already expired, you should still consult an attorney to determine if there are any exceptions to the Statute of Limitations that apply to your case, rather than assuming that your claim has been barred by the Statute of Limitations expiring.
California law provides that a person is entitled to recover all economic and non-economic damages arising from bodily injury or property damage proximately caused by the negligent conduct of another person. Examples of economic damages include medical bills, wage loss, loss of earning capacity, property damage, the reasonable value of gratuitous home health care services, etc. Examples of non-economic (general) damages include pain and suffering, loss of enjoyment of life, loss of enjoyment of one’s profession, emotional distress, loss of consortium, etc. Even though economic damages are much easier to quantify than general damages, insurance companies still often challenge claims for economic damages, and will make you prove them with hard evidence before they agree to compensate you for their loss. Non-economic (general) damages are more difficult to quantify than economic damages. Many factors go into calculating non-economic damages, and it is more of an art form than a science. After many years of handling cases for plaintiffs and defendants, as well as reviewing jury verdicts from cases all over California, I have developed a good “feel” for estimating general damages depending on the county in which your case is venued the type and permanency of your injury, your medical treatment, age, occupation, activity level, etc.
You are also entitled to recover damages arising out of the intentional conduct of someone else. However, since insurance does not pay for damages resulting from someone’s intentional conduct, you would have to recover damages resulting from intentional conduct from their personal assets. In rare situations, you may also be entitled to recover punitive (exemplary) damages, which are in addition to compensatory damages and are intended to punish the defendant for oppression, fraud or malice.
This issue can be complicated and varies depending on the specific facts of each case, and as your attorney I analyze the details of your case in order to help assist you in deciding what would be more economically beneficial for you.
Many people think that if the person who caused the incident or collision (or who is at least partially at fault) does not have insurance, that they are out of luck as far as obtaining any recovery for their injuries and damages. You can try to obtain compensation from their personal assets, but it is far easier to make an Uninsured Motorist (“UM”) claim to your own insurance company. As long as you have adequate UM limits, under current California law it is often better to have a UM claim with your insurance company than a third party claim against the adverse driver. Many people think their insurance premiums will increase if they make a UM claim, but your rates should NOT increase if the collision was not your fault.
IT IS MY OPINION THAT EVERYONE SHOULD HAVE AS MUCH UNINSURED MOTORIST COVERAGE AS THEY CAN POSSIBLY AFFORD! Uninsured motorist coverage is very inexpensive compared to liability coverage, and I advise everyone I know to have at least $100,000 per person coverage, and preferably $250,000 or $500,000. If you have uninsured motorist coverage, your own insurance company is required to pay you all the damages that you would be able to recover from the adverse driver if he or she had insurance. If the adverse driver does not have enough automobile liability insurance to cover all your damages (many people have only $15,000 per person liability insurance coverage, which is all that is required by the State of California), after you obtain all of their policy limits, you can then make an Underinsured Motorist claim to your own insurance company. Uninsured and underinsured motorist claims do not proceed through the court system, but are governed by completely separate provisions of California Insurance Code. Because the Insurance Code provisions are somewhat complicated and at times contradictory, there are many pitfalls and traps that even attorneys can get caught in when pursuing these types of claims. For more information, please see my article on uninsured and underinsured motorist claims elsewhere on this Website, which I had published in Forum, the state legal magazine for plaintiffs’ attorneys.
Unfortunately, if you did not have the required minimum $15,000 automobile liability policy limits at the time that you were involved in a motor vehicle collision, your rights to recover damages are severely restricted by Proposition 213. In November, 1996, Prop 213 was passed into law by the voters of California. It provides that fleeing felons, drunk drivers, and uninsured motorists are not entitled to recover any non-economic damages (such as for pain and suffering) resulting from a motor vehicle collision, even if another driver is completely at fault for causing your collision. However, Prop 213 only applies to drivers, and thus does NOT apply to passengers.
Voters had strong feelings about denying recovery to fleeing felons and drunk drivers, but apparently did not know (or did not care) that uninsured motorists were also denied their rights to recover non-economic damages. Several consumer groups challenged Prop 213 as unconstitutional in the courts, but all the initial attempts to overturn it have been denied. Please feel free to call me if you have any questions regarding whether Prop 213 applies to your case.
Unfortunately, many jurors have been prejudiced by insurance company propaganda, and are closed-minded and cynical about personal injury cases in general and claims for pain and suffering in particular. A major reason for this bias seems to be that they believe (incorrectly) that there is an explosion of personal injury cases in California, and that this imaginary “explosion” of injury cases is causing insurance rates to skyrocket. In reality, the number of personal injury cases has sharply declined in the last decade or more, and it is the criminal cases and lawsuits between big businesses that have sharply increased. The California Judicial Council, which is the state governmental body that keeps track of lawsuit filings, noted a 48% drop in filings of motor vehicle collision lawsuits in the 7 years from 1988-1995. In addition, insurance rates are effected very little (if at all) by large personal injury verdicts.
Insurance companies have done such a great job of creating a myth of a litigation explosion that the vast majority of the general public believes it, sometimes even after they are informed of the California Judicial Council statistics. Large verdicts are highly publicized for their “shock value,” usually without reporting all the crucial facts that the jury which rendered the verdict had carefully considered. Unfortunately, the many cases where people are brow-beaten by much more powerful insurance companies into accepting unreasonably low sums for legitimate and significant injuries receives very little, if any, publicity. See my article on uninsured motorist cases elsewhere on this Website regarding a case in which my client’s own insurance company tried, among many other things, to pressure her to accept $750 for a case which eventually settled for $100,000 after I was retained and battled the insurance company for nearly a year. Of course there are fraudulent or exaggerated personal injury claims (just as large corporations exaggerate their losses in business litigation against other businesses), but having worked for both insurance companies and injured claimants in my career, I believe that injured claimants rarely recover more than the fair value of their case, and many times only recover a fraction of what they truly deserve.
Quick offers are often low and designed to limit their liability. Once accepted, you typically cannot pursue more. Always have the offer reviewed by counsel before making a decision.
If you have uninsured or underinsured motorist coverage, your own policy may provide compensation. We can also look at other potential liable parties or coverage sources.
Possibly. If the denial is unreasonable, you may have a bad faith insurance claim. These require detailed legal evaluation and must be supported by clear documentation of the insurance company’s actions.
The at-fault party’s policy limits can cap how much their insurance pays. If your damages exceed that amount, we explore options like excess coverage, employer liability, or other third parties.
We work on a contingency basis. That means you don’t pay any legal fees unless we recover compensation
for you.
We’ve recovered millions for clients facing life-altering injuries. Every case is handled with care and determination.
We believe in doing right by our clients. That means clear communication, consistent follow-through, and real attention to their needs.
Joseph Tomasik has been recognized by Super Lawyers and the National Trial Lawyers Top 100 for his integrity and success in the courtroom.
Meet the Founder
Mr. Tomasik has practiced personal injury and insurance law for nearly four decades. Early in his career, he was an attorney for insurance companies, gaining keen insight into how insurance companies fought personal injury cases. Mr. Tomasik discovered that he had more compassion for injured claimants, so he founded his own firm to represent injured individuals in their battles with insurance companies.
Mr. Tomasik’s tenacious advocacy and intellectual creativity have not only achieved extraordinary results that have delighted his clients, but have also garnered professional accolades such as California Super Lawyer (Top 5%), National Trial Lawyers Top 100, and Martindale-Hubbell’s highest rating for both ability and professional ethics. He has given back to the legal profession by serving on the Board of Directors of Consumer Attorneys of California and the Alameda/Contra Costa Trial Lawyers Association.
Client Praise
Fremont, CA
Jun 4, 2014
We utilized The Law Offices of Joseph Tomasik for our daughter's personal injury case and highly recommend the services of Joseph Tomasik. I was a subcontractor for numerous personal injury attorneys' over the past 12 years. When we needed a personal injury attorney, Mr. Tomasik was number one on my list. So this review comes from both my insight as a subcontractor and client since I was at my daughter's side throughout the entire process. Mr. Tomasik is a solo practitioner who works closely with his clients, is accessible, approachable, caring, knowledgeable, experienced, and attentive to detail. He keeps clients informed and prepared along the way. He represents them to the best of his ability working tirelessly to obtain the best resolution to what are sometimes very complex and/or challenging cases. I appreciated his diligence on each and every case, small or large. He has integrity, honesty and is realistic with his clients when called for. Mr. Tomasik's legal assistant Jessie is an absolute gem and valuable team member. Jessie is very responsive and communication is timely and accurate. They are an effective and cohesive team. We were extremely happy with Mr. Tomasik's representation and settlement in our daughter's case.
Southwest Berkeley, Berkeley, CA
Jan 21, 2022
Professional, well prepared, straight forward, caring is some verbiage that comes to mind when thinking about the class act of Team Joseph Tomasik and Pam Mendes. They will go to bat for you and represent your case to the fullest extent possible. Joe is the type of Lawyer that truly represents his client and did I say incredibly thorough... I mean he uses his skills to seek the best possible outcome and in such a trusting manner. Once accepting of your case, allow him to work on your behalf and see how he operates within the legal system. Orally articulate, outstanding research, written and communication skills as well as the ear for listening and from my experience, he is personally invested in my and or your case. Joseph truly cares about the outcome of his case(s) and works diligently from beginning to end on your behalf. Do your research and see that you will be making the correct decision in seeking his legal counsel. Joseph and Paula a resounding Thank you for your the time and effort!
CA, CA
Jan 5, 2015
Anyone who has been involved in a personal injury case knows how difficult it can be to try to recover from injuries and resolve a legal case at the same time. When I was rear ended by an uninsured motorist, I hired Attorney Joseph Tomasik to represent me. Throughout the process, I was impressed with his knowledge of the law, willingness to fight for my rights and the high quality of his work. Additionally, he and his staff exhibited great professionalism and attention to detail while showing compassion and patience. In my Uninsured Motorist claim to my own insurance company, they delayed for over a year before making me any settlement offer. While a different attorney may have suggested that I accept the offer, Mr. Tomasik urged me to proceed to arbitration. My insurance company and their hired doctors said ridiculous things at arbitration that shocked me, but Mr. Tomasik wrote a 36 page brief and fought hard on every point. It paid off, as the arbitrator awarded more than THREE TIMES my insurance company's offer. My collision dramatically affected my life, and I trusted Mr. Tomasik when I could not trust my own insurance company. He came through when I needed him, and it is obvious that he really CARES about his clients.
I wholeheartedly recommend Joe Tomasik as an attorney for personal injury. I can assure you that he truly has compassion for his clients. He stands out in every aspect of legal research, traffic laws, medical specifics and most of all judicial know-how. I initially hired another prominent personal injury attorney to represent me, but I am so happy that I switched to Mr. Tomasik, since he was so much more diligent and supportive. His style of representing clients is that of a pure gentleman, perhaps belonging to a category that is of the past and now underrepresented in our fast-paced, quick-to-judge society. Where most greedy lawyers stop because they cannot comprehend the gravity of a case, or it becomes too much work, he picks up his "Scepter of Integrity" and follows through on all of the details. But do not underestimate the meaning of gentleman; when all negotiations fail, Mr. Tomasik is fearless if he has to go to trial to get justice, which was in my case. The defense counsel for the insurance company fought bitterly at trial, but Joe fought back even harder. His witness preparation was superb. He educated, communicated, and most of all, supported me in our 10-day-trial from the beginning to the end. I was fortunate to have Joe represent me in my complicated case. I learned so much that I was able to stand up for my own rights - with full knowledge - to any lawyer, mediator, clerk and even judge. He strengthened me to walk upright even though I was in pain from CRPS/RSD in both arms and hands. His motto is simple and his philosophy is classic Berkelian: "The Truth Shall Make You Free". It works! Clients sometimes don't know about the law and all the intricacies, and I was no exception. He was there for me at any hour to support me in believing in myself when things started to look bleak, which made our final victory sweeter in the end, and therefore I highly recommend him to anyone who is in need of an excellent lawyer.
Hello Mr. Tomasik and Ms. Butala, I wanted to thank you for your great service and help with my legal needs surrounding my motorcycle accident. From the beginning, you both have been extremely professional, helpful and thorough in your handling of these matters. You were very clear in explaining all the complicated details of what was happening. I appreciated your diligence in dealing with the insurance companies. Without your help I would have been lost. Your council and guidance helped me feel like I was making informed decisions through this process. Jessie, you have always been courteous and respectful. You were always timely with information and communication. You were a pleasure to work with. Thank you for your hard work. Mr. Tomasik, you always made me feel that my case was important and that you were working hard on my behalf to represent me and bring the best possible result to my case. I was well informed in all matters with both the property damage and personal injury aspects of my case. You helped me tremendously during a very stressful and difficult time. On a scale of 1 to 10, I'd give you a 20! On behalf of myself and my family, thank you for your great representation and service. I would recommend you highly to anyone in need of legal representation and council. Best regards,
I’ve utilized the legal services of Mr. Tomasik twice. The first time was over 10 years ago when I joined my parents' case with some degree of reluctance. The three of us had been rear ended by a big rig. As a result of this serious accident, my mother has had at least 3 back surgeries. We settled out of court due to Mr. Tomasik's professionalism. The second time, I was involved in yet another rear end accident with a delivery truck. Immediately, I sought the legal expertise of Mr. Tomasik. Once I was seated in his office, I knew I was in good hands and that he had my best interests at heart. My parents and I won in both cases! Recently, I have been able to use that settlement money for Pilates sessions to strengthen my core. I would seek Mr. Tomasik’s legal services in a heartbeat!
Anyone who has been involved in a personal injury case knows how difficult it can be to try to recover from injuries and resolve a legal case at the same time. When I was rear ended by an uninsured motorist, I hired Attorney Joseph Tomasik to represent me. Throughout the process, I was impressed with his knowledge of the law, willingness to fight for my rights and the high quality of his work. Additionally, he and his staff exhibited great professionalism and attention to detail while showing compassion and patience. In my Uninsured Motorist claim to my own insurance company, they delayed for over a year before making me any settlement offer. While a different attorney may have suggested that I accept the offer, Mr. Tomasik urged me to proceed to arbitration. My insurance company and their hired doctors said ridiculous things at arbitration that shocked me, but Mr. Tomasik wrote a 36 page brief and fought hard on every point. It paid off, as the arbitrator awarded more than three times my insurance company's initial offer. My collision dramatically affected my life, and I trusted Mr. Tomasik when I could not trust my own insurance company. He came through when I needed him, and it is obvious that he really cares about his clients.
I HIGHLY recommend Mr. Tomasik. I came to Mr. Tomasik after realizing that my previous attorney was trying to settle my case for far less than what it was worth. The first attorney never spoke to me after we signed the contract. All our communication was held through the office assistant, and sometimes it took more than a week to get a call back. Having had this experience, I can say that Mr. Tomasik is so much better. First of all, he is very knowledgeable and extremely thorough, and also very compassionate. He prepared me for everything every step of the way. For example, very often the defendant’s insurance lawyers tried to confuse me with their twisted questions, but Mr. Tomasik would always inform me ahead of time of what to expect. I really appreciate all his effort in preparing me so well because it made me feel so much more comfortable. I was also very impressed that he was always personally very involved in all of our communication. If I ever had any questions or concerns he was just a phone call away. I never had to wait for days to get a call back. I completely trusted him because he didn't just treat me like I was his client – he treated me as if I was his close family member who he cared very much about. I had a complicated case in which the insurance company refused to settle until a few days before trial, and Mr. Tomasik’s case file with all the letters and documents was huge. In the end Mr. Tomasik's hard work paid off and I got a very fair compensation for my injuries. The settlement was almost twenty times what my first lawyer was trying to settle for. I cannot thank him enough for taking on my complicated case.
Mr. Tomasik did an outstanding job guiding me through every step of the way. I felt a very strong connection with him as i genuinely felt like he wanted to help and get the resolution I deserved. He has an assistant named Jessie who works behind the scenes and really puts in a lot of time an effort to make communication with Mr. Tomasik seamless. In my case we were able to get more then i would have ever expected in large part due to the preparation and effort Mr. Tomasik gives to each one of his cases. Overall nothing but good things to say about Joseph Tomasik and would HIGHLY recommend.
San Francisco, CA
Jul 20, 2020
We worked with Joe for a major accident and he was awesome. he worked, what seemed like 24/7, to ensure that we were taken care of. He went above and beyond and I would highly recommend him and his team. They are always available and ensure you are kept in the loop every step of the way. Even after moving out of state - he was there for us!!!
El Cerrito, CA
Mar 8, 2022
It was a great experience having Mr. Tomasik represent me after someone hit our vehicle head on. It was a traumatizing experience for me and my young children. Mr. Tomasik and Pam were very knowledgeable, caring and compassionate. They took the time to explain the entire process. Communication with them was easy. I would highly recommend. Thank you Mr. Tomasik and Pam!
Oakland, CA
Jan 24, 2022
We were in a devastating car accident and we needed representation from a well trusted attorney to help us get through a very difficult time. Mr. Tomasik is very knowledgeable in dealing with the insurance company. Mr. Tomasik provided us with the most professional service and. I am very satisfied with the outcome. I highly recommend Mr. Tomasik!
Free Consultation
