Bad Faith — Collecting More Than Policy Limits

If you’ve been injured by a person who doesn’t have enough liability insurance to cover your damages, most of the time you are out of luck. The sad truth is that most people with inadequate insurance won’t have the ability to pay any damages out of pocket, so there is no point in suing them if their insurer has tendered its policy limits. In auto accident cases, you can protect yourself from this by buying UM insurance. However, sometimes even your UM coverage won’t be enough. In cases where the only liability insurance available will fall short of your damages, your only hope for being fully compensated is if the liability insurer acted in “bad faith.” If an insurer acts in bad faith, it exposes itself to all of your damages, regardless of its insured’s policy limits.

When Does an Insurer Act in Bad Faith?

Put simply, a liability insurer acts in bad faith if it could and should have settled a claim or lawsuit within its policy limits and failed to do so. This is bad faith because the insurer is exposing its own insured to an excess judgment (a judgment that exceeds policy limits). It is not bad faith towards you which creates the claim, but bad faith towards its own insured, to whom the insurer owes a fiduciary duty.

Put yourself in the shoes of the tortfeasor. You negligently injured someone else and you hope that your insurance company will make the case go away. Your insurance company gets an offer to settle the case for your full policy limits, which is actually a good deal because the person you hurt has injuries that far exceed those limits. If your insurer doesn’t pay, and you get sued, you will be personally liable for all of the plaintiff’s damages beyond your policy limits. The unthinkable occurs. Your insurer either drops the ball and doesn’t accept the settlement offer in time, or it acts stupidly and rejects the offer. It has just exposed you personally to a huge judgment, while all it has to pay is its policy limits. Or does it?

In screwing you over, the insurer has breached its fiduciary duty to you, allowing you to sue it for all the damages you have to pay out of pocket through a “bad faith” lawsuit. However, this doesn’t get you off the hook for paying the plaintiff right now. If only there were some way to give your claim against the insurance company to the plaintiff in exchange for the plaintiff agreeing not to execute its judgment against you. . .

Why It is Called ‘Third Party Bad Faith’

Putting you back in your own shoes, you just received an offer from the defendant to assign you his bad faith lawsuit against his insurer in exchange for you not executing on your judgment against him. Because the defendant personally has no means to satisfy the excess judgment, you jump on the chance turn your uncollectible judgment against him into a very collectible judgment against his insurer. You step into a third party’s (the defendant’s) shoes to sue his insurer, which is why this is commonly known as a “third party bad faith claim.” In some states, where “direct action” against a third party liability insurer is allowed, the plaintiff can sue a liability insurer for bad faith without the need for the tortfeasor to assign his claim.

There is such a thing as a first party bad faith claim (where you sue your own insurer), but as a plaintiff this is usually enabled by a statute (third party bad faith is a common law claim) and has nothing to do with the type of claim covered in this article.

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Did the Defendant’s Insurer Act in Bad Faith?

Before you start thinking that all lawsuits that result in an excess judgment are bad faith lawsuits — they aren’t. The key to a bad faith lawsuit lies in two words: could and should. Could the insurer have settled the case within policy limits? Did you make an offer to settle your claim for policy limits and give the insurer a reasonable amount of time to accept the offer? In Florida, courts have rejected bad faith claims where the plaintiff’s attorney put a 10-day time limit on a demand for policy limits. However, 30-day time limits were found to be adequate, which is why almost all Florida plaintiff’s attorneys place a 30-day limit on demands for policy limits. If the insurer delivers the settlement check on day 31, you can reject it and still preserve your bad faith lawsuit. Reasonable deadlines will be a matter of state common law, so this can vary from state to state.

If the insurer could have settled within policy limits, the question then becomes whether it should have. This will be viewed in light of the information available to the insurer at the time it failed to settle. So, if your case suddenly became more valuable after the settlement offer expired, that new information won’t support a bad faith case unless the insurer had the opportunity to settle for policy limits after that information became known. The question of “should” comes down to a “reasonableness” test: would a reasonable person have settled the case for policy limits with the information available at the time.

In some cases, the “should” question is clear cut. For example, it’s obvious that an insurer should settle a claim with $10,000.00 limits where its insured was clearly at fault and the plaintiff’s accident-related medical bills alone will exceed $30,000.00.

In other cases, the “should” issue is less clear, such as cases involving disputed fault or causation. Because a finding of “no liability” or “no causation” completely negates a plaintiff’s damages, reasonableness involves a more complicated risk-reward analysis. If the defendant has a 50% chance of getting a defense verdict, but the verdict would likely be $75,000.00 if the plaintiff wins, should the insurer settle the case for policy limits of $50,000.00? In other words, it can get pretty complicated.

As a plaintiff’s lawyer, I’ll always argue that an insurer shouldn’t expose its insured to an excess judgment under any circumstances. However, be aware that bad faith cases are not slam dunks just because you won at trial and got an excess judgment. Reasonableness is a jury issue (in the bad faith lawsuit). Luckily, most juries hate insurance companies.

Things That Can Go Wrong In Bad Faith Cases

Aside from the problems mentioned above, other things can go wrong when bringing a bad faith case. If the defendant doesn’t want to assign you his bad faith claim (for whatever reason) or bring one on his own, you would have to force him into bankruptcy and then try to get the bankruptcy trustee to assign you his right to sue the insurer. That carries no guarantees and is a royal pain in the ass.

Settlement tip

Your attorney could make an error in the assignment/no-execution agreement between you and the defendant. Mistakes in these types of agreements can inadvertently release the insurer from bad faith liability. It may pay to bring in an attorney who specializes in “bad faith” cases if you need to bring this type of claim. Discuss this possibility with your lawyer once you know that you have a possible bad faith situation.

If, after making your initial offer to settle for policy limits you make a subsequent offer for less than policy limits, you may have ruined your bad faith case. The whole basis for a bad faith case is your position that the insurer should have known that the case was worth more than policy limits. Your own demand for less than policy limits undermines this argument.

Settlement tip

Will an Insurer Settle a Case for More Than Policy Limits?

If an insurer faces exposure to a bad faith lawsuit, it may offer you more than policy limits to try to settle your underlying lawsuit. This is more likely to occur in cases where the insurer’s failure to pay policy limits results from an adjuster missing a settlement deadline. If the insurer really wanted to settle for policy limits, and just made an error in not getting you the check in time, it likely knows that it screwed up and it will want to avoid picking a fight it can’t win. If, however, the insurer actually evaluated your case as not being worth policy limits, odds are that it will not offer more than policy limits before you get an excess judgment.

Should I Always Pursue a Bad Faith Case When It’s Available?

The answer to this question really boils down to how much your possible bad faith case will be worth. If it will only slightly exceed policy limits, you may wind up losing money by incurring (1) the additional cost of a trial in your underlying case and possibly (2) the cost of a second trial on the bad faith issue. An early settlement for policy limits may be your best deal if the additional cost of pursuing the bad faith case outweighs the potential extra recovery. If you expect to receive a judgment which greatly exceeds policy limits, it’s almost always worth pursuing.

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164 Responses to Bad Faith — Collecting More Than Policy Limits

  1. grant says:

    I couldnt find where to post this question or whatever but im a little pissed because my lawyer sent a demand letter and it gets rejected. HE tells me what a jerk the adjuster is and says we should file suit. So we file and now he is telling me there is another litigation where he is giving them another chance to pay policy limits of 25k. They denied limits, why not just take it to trial? how many chances are they gonna have? Im seriously injured and his limits wont come close to compensating that. He is saying this is the right way to do things. Im not so sure

    • fl_litig8r says:

      Well, first and foremost, as the client you have the final say in authorizing your attorney to settle. If you don’t give him authority to settle for $25,000, he can’t. Ultimately, you control whether you settle or go to trial.

      That being said, there may be valid reasons for your lawyer wanting to try to settle for policy limits now that suit has been filed. The primary reason would be that the involvement of a defense lawyer may apply the necessary pressure on the adjuster to pay up. The defense lawyer will want to cover himself. If he thinks that the case may result in an excess judgment (a judgment beyond policy limits), he will put this in writing when reporting to the adjuster. If the adjuster ignores this warning and requires a trial which results in an excess judgment, he’ll have a lot of explaining to do to his superiors.

      Good reasons to settle before trial are (1) risk avoidance and (2) getting your money now versus waiting over a year (probably closer to 1 1/2 or 2 years) for a trial. “This is the right way to do things” is not a reason to settle. If your lawyer can make a convincing case as to why you may not be awarded more than policy limits if you go to trial (such as liability or causation issues), that’s something you should consider in making your decision. The additional non-recoverable costs you will incur in taking the case to trial is also a factor to consider. Etiquette is not a good reason to throw away a potentially good bad faith case. Most lawyers salivate at the thought of an adjuster screwing up and not offering policy limits in a case where it’s clear that you will recover far more than them at trial.

      It sounds like your lawyer has concerns about your chances to get an excess judgment. I’d press him to explain those concerns so that you can make an informed decision. Don’t fall so in love with your case that you can’t see its possible flaws. Conversely, don’t let your lawyer bully you into making an offer you are confident you can can beat at trial.

      Always be aware that your lawyer may try to drop your case if he really doesn’t think it’s worth taking it to trial. Now that suit is filed, he’d have to file a Motion to Withdraw with the court to drop you (this early in the case, it would likely be granted). You really don’t want to be stuck scrambling to find another lawyer while the defense attorney tries to take advantage of your new lack of counsel. If, after talking to your lawyer, you are convinced that the two of you will never see eye-to-eye on this issue, it may be time to start talking to other lawyers to see if you can line one up, and maybe have your lawyer graciously bow out of the case (this would be done throw a Motion to Substitute Counsel, which would ensure that you are never unrepresented). There’s no need to be hostile towards him if it comes to this. Just explain that it’s clear that you are not on the same page, and you’d like to go with another lawyer who shares your view of the case. You’ll likely still be on the hook for your first attorney’s costs, but you may be able to get him to drop any claim to fees if you finesse it (if he withdraws, he won’t get fees anyway, and probably won’t even get costs — check your contract).

      The bottom line is that I’d have a sit-down with him so that he can explain why he thinks a policy limits offer should be made at this point. What scenarios does he envision for trial that would result in you getting less than limits (and not just the generic “juries do crazy things” argument). If he fails to convince you, and doesn’t react well to you telling him that you definitely want to take it to trial, it may be time to broach the subject of you finding another lawyer.

  2. grant says:

    My lawyers first communication the adjuster said we aren’t paying, then again with the demand letter. Two times they denied limits and he’s pretty set on giving them a third chance. So I’m gonna take your advice and see but I’m willing to bet when I tell him I won’t settle for limits and they have had two chances, he won’t represent me

  3. grant says:

    Im back, I spoke with my attorney and here is what he said. He did not feel we had a strong case with the bad faith because we did not give them a fair chance to pay limits. Here is the chances we gave, my attorney sent a letter of representation in which a response was sent denying any type of payment, second a demand letter was sent along with all medical bills and statements detailing the injury and another denial was sent to my attorney. In the conversation with my attorney he informed me he spoke with the insurance company’s attorney who asked if limits were still on the table. I explained to my attorney that limits are no longer on the table and I feel they had the oppurtunity to pay and chose not to. With medical bills over 10k lost wages and surgery over 50k limits of 25k will not do and they should have jumped at it when they had a chance. For some reason he still wanted to give them a chance at limits. I dont understand it but he is relaying that limits are off the table.

    • fl_litig8r says:

      As long as the insurer had sufficient information to determine that its failure to pay policy limits would likely expose its insured to an excess judgment (this isn’t the actual legal standard, which varies by state), it is bad faith not to tender its limits. The only time I would give an insurer another bite at the apple is if the information they had during the initial settlement talks didn’t indicate the likelihood of an excess judgment, but some newly developed information did.

      I don’t want to say what your specific lawyer’s reasons are for wanting to settle for limits at this time, but as a rule, lawyers like “money now from an easy settlement” over “possibly more money later after a trial.” You could ask your lawyer if he thinks the insurer lacked a certain piece of information during the prior settlement offer period which would warrant re-opening the offer to take limits. If he can’t point to anything convincing, it may just be that he doesn’t think the extra cost and effort of trial are worth the possible additional recovery from a bad case (either to him, to you, or both).

      It is interesting that the insurer is suddenly interested in offering limits. If no new information spurred this change of heart, it’s likely that another adjuster or attorney for the insurer saw the file and realized that they had a possible bad faith situation. I hope your lawyer gets on board with your decision and blows through those limits at trial. If he does this once, he’s more likely to be game for it again in the future with other clients.

  4. grant says:

    And that was my thought exactly, he would rather settle and be done rather than go the distance. I had to really explain in detail what I go through and will continue to go through until I am fixed and limits just werent enought. His confidence worry’s me and I dont want him to not give a 100% from here forward. WIth him relaying that limits are off the table is it possible they come back with a higher offer? Obviously with medical expenses with surgery being well over 60k I cant imagine them coming back with a number that would satisfy me, you know how it works lawyer gets paid, medical insurance gets paid, then I get paid. It also struck me funny that he really wanted to give them another chance like he had missed something, he was pretty firm on lettting them pay limits. It wasnt until I brought up the letter of representation he sent that got the nasty response of we arent going to pay along with the demand letter saying they werent paying. I just hope there isnt something he isnt telling me

    • fl_litig8r says:

      It’s possible that they will offer more than policy limits without the need for a trial, but a lot of insurers won’t as a matter of policy. Hopefully, in your case, the defendant’s insurer will see that they screwed up and want to avoid the additional attorney’s fees a trial would bring.

  5. grant says:

    He really feels we didnt give them a fair chance, in a second opinion do you think my lawyer sending a letter of representation which got a response of go screw yourself pretty much, then my lawyer submitted a demand letter with detailed info and medical records of my injury in which again they failed to pay. I feel that was a fair enough chance to pay limits. For some reason he does not. Is here a reason why he may feel this way? It does really concern me he might be in over his head. At first he did not want to settle early because of not knowing about surgery and how my recovery would be after and now he is about settling before I even go under the knife. Makes no sense at all.

    • fl_litig8r says:

      As long as your demand letter contained a full picture of your injuries and gave the insurer adequate time to accept a policy limits demand, I don’t see what the problem is with pursuing a bad faith claim. I really don’t know what your lawyer thinks isn’t “fair” about how you’ve demanded settlement. If you want a pretty cheap third opinion as your tie-breaker, you can always pay $35-40 to a JustAnswer personal injury lawyer and post your question there about whether you have a viable bad faith case. If you go that route, be sure to include your home state in the question, and be specific as to the policy limits and settlement efforts (as you have been here). You don’t release the payment until you “accept” the lawyer’s answer (they hold it in escrow until then), so there’s pretty good quality control.

  6. Grant says:

    I have a copy of the letter somewhere but if he failed to disclose information that would be considered crucial in making a decision in my case and that results in a loss Im guessing there is a way he would be held responsible?

    • fl_litig8r says:

      Well, based on the information provided, I’d have to say that even if his initial letters didn’t contain all the information needed, it’s unlikely that it would be a viable malpractice case. Because the insurer is now willing to pay policy limits, presumably because it now has the needed information, the only real damages you’d have would be from a delay in being paid. The insurer would likely say that it would have tendered limits if it had received the complete information in the initial demand. So, you never would have had a potential bad faith case in the first place if your lawyer had sent all of the information earlier. No legal malpractice lawyer would touch a case worth so little. Again, this is all presuming that your lawyer didn’t provide the necessary information in the initial demand, which you are unsure of.

      If he didn’t send all the necessary information with the pre-suit demand, and now his fee percentage has gone up after filing suit, it would only be fair to him to reduce his fee back to the pre-suit level if you were to accept policy limits now.

  7. grant says:

    Well I asked if he relayed to them that policy limits were no longer on the table. He stated this “Grant — I have not informed them that the offer is no longer on the table. My silence answers the question. If they ask, I will tell them this. Seriously? Is this normal? Why would he not tell them so they know and could possibly come back with a counter. If I was the attorney I would call and explain to their attorney “no limits are not on the table, you have denied limits twice to my client who is in need of (then explain surgeries) along with missed promotions, job opportunities, lost wages etc. He’s being a big panzy

    • fl_litig8r says:

      I can’t speak to your lawyer’s actual motives for not responding to the insurer’s overture, but it may work to your advantage. The insurer never directly offered policy limits. They tried to weasel your lawyer into re-offering to accept limits by just asking if they were still on the table.

      One surefire way for the insurer to get its answer is to actually make an offer to settle for limits. Right now, the insurer is in a “damned if you do, damned if you don’t” position. If it offers limits, it helps the bad faith case by so quickly acknowledging that it should have offered limits earlier. If it doesn’t offer limits, it’s just compounding its original error, which also helps the bad faith case.

      I don’t know if your lawyer is thinking along these lines, but his refusal to respond to a “non-offer” could prove to be the right move.

  8. grant says:

    I hope thats the case, he just mailed me court papers with all witnesses and and parties involved along with stating my injuries are in excess of 250,000. This was sent to the insurance companies attorney. This is some stressfull stuff, my disc replacement denied again so I am still facing fusion in my neck and back and that alone could take 3 years to completely heal. I feel no matter what I get the short end of the stick

  9. grant says:

    I received my trial date, its in November. I know you said normally they do not pay more than limits but do you think maybe they would if their lawyer advised them to? As I stated before I need back and neck surgery. Neither of which is paid for by insurance. Since my back was a reaggrevation im willing to handle that myself and offer them to settle for the cost of the cervical disc replacement+lost wages+medical bills+attorney fees. If I spoke to my attorney is this something he could take to the opposing attorney? The amount they would be agreeing to pay would be 65k to me and 26k to my attorney. Since my attorney has informed them my injuries are north of 250k I would think they would jump on it. Im not looking to make it rich or take anyone to the cleaners, the pain is to the point I just want enough to cover my surgery and the 2-3 weeks I will be out of work.

    • fl_litig8r says:

      I doubt that the defense lawyer would advise the insurer one way or the other on paying above limits. He’d just tell them the risks and probable trial outcomes and leave the decision to them. Insurance defense lawyers walk a fine line when it comes to issues between their clients (the insureds) and the ones paying their bills (the insurers). Because bad faith cases inherently pit insured vs. insurer, defense lawyers won’t advise either of them on that issue (aside from recommending that they obtain independent counsel). It’s common for insurers to hire completely separate firms to represent them on bad faith claims.

      So, I wouldn’t get my hopes up about a pre-trial offer exceeding limits if I were you. Of course, stranger things have happened.

      As to your lawyer presenting them the offer as you suggest, he probably wouldn’t want to break out attorney fees as a separate item. This would open the door for the insurer to pit you against your lawyer (possibly by countering with an offer that shortchanges or stiffs your lawyer). I’ve had defense lawyers try to pull that crap on their own initiative, usually at mediation, and I’ve ripped them a new one over it.

  10. debra says:

    Five years ago my mother passed due to negligence if a nus=rsing home in my city. I got what I thought to be one of the best law firms in town. This has been going on ofr five years. Recently, I was told to settle because any judgement awarded by the jusry would be appealed and there is a probability we would end up with nothing. We have statements from the state department of health concenring this nursing home but, because of its policy limit, he stated i would end up with nothing because of republican in the supreme court. Please explain this to me.

    • fl_litig8r says:

      Without knowing all the details of your case, which I am not asking for, and your state’s nursing home laws, I can’t say why your lawyers are advising you to settle. It’s pretty rare for a lawyer to express fear about losing an appeal before a case has even gone to trial, unless the judge already made a ruling in your favor which is clearly reversible error. Usually, a lawyer will warn you about an appeal just to let you know that even if you win at trial, it may be years before you ever get paid (assuming your judgment is affirmed on appeal), as the defendant can post a bond which allows it to avoid paying the judgment while the case is under appeal. I can understand your lawyer suggesting a reasonable settlement to avoid having to endure several more years of waiting, while your case goes through trial and possibly more than one appeal. I’m not sure why your lawyer is so concerned about losing on appeal before you’ve had your trial.

      While republicans on your state supreme court are never a good thing for personal injury plaintiffs, it’s not as if they have unfettered power to overturn a favorable judgment. It may be that they’ve rendered some opinions recently that have made nursing home claims more difficult to win in your state that has caused your lawyer to reconsider moving forward.

      I’d suggest making an appointment for a face-to-face meeting with your lawyer, so he can explain in detail what his concerns are about your specific case. It sounds like you’re mixing together several unrelated risk factors that your lawyer relayed to you, such as the republican supreme court and the nursing home’s policy limits. If the nursing home has made a settlement offer that is near its policy limits, your lawyer may feel that it’s unlikely that a trial would get you much more (or even as much) as the offer. Even though a bad faith remedy may exist which would allow you to recover more than the policy limits, that remedy hinges on your case being one which was obviously worth more than the policy limits at the time limits were demanded.

      Your lawyer may also be recommending settlement because the costs of trial would result in you getting less than you’d get now if you took the offer. Also, while appeals usually don’t drive up costs significantly, they usually do add more to your attorney’s fee, often another 5%. So, when he says you’d wind up getting nothing, he may mean that the added costs of trial, plus the additional attorney’s fees he’d charge for an appeal, may get you less (this is assuming that you win both at trial and on appeal) than you’d get by settling now.

      Make your lawyer take the time to explain his reasoning to you until you fully understand what he’s saying. You may not agree with what he’s saying, but at this point I don’t think he’s explained it well enough to give you a fair chance to make an informed decision.

  11. grant says:

    Sorry its me again, I have a question about some paperwork I Have been asked to supply for the defendants lawyer. My attorney sent me some paperwork with a bunch of questions as well as a medical release for the opposing side. They are also asking for W-2’s from 2004. How is that relavent in my personal injury case? Thanks again

    • fl_litig8r says:

      No apology needed. That’s what the site is here for. This article should answer your questions. The written questions are interrogatories. Answer them as best you can — some questions your lawyer will have to answer (like “who are your experts?”). Your lawyer likely change or edit your answers and produce final answers for your review and signature (they must be signed in front of a notary, as they are under oath). The sooner you get him the answers back, the better, as he only has 30 days (+3-5 days mail time, if they were mailed to him) to return them to opposing counsel, and you want to give him enough time to polish your initial answers.

  12. grant says:

    Well its mw again, my lawyer thought our bad faith against the at faults insureds was weak even though a letter of representation and demand letter was sent both returning resonses of we refuse to pay for any of Mr Chandler’s medical. We decided to give them one more chance and set an offer of settlement. They now have let that expire not paying limits of only 25k despite my medical bills being over 75k with surgery and still need one more surgery. So would you say my case got stronger?

    • fl_litig8r says:

      I would say that your potential bad faith case certainly got stronger. I can’t believe the insurer would be dumb enough to invite a policy limits demand and then let it lapse. It may be that their lawyer didn’t have the authority to make a policy limits offer, and was hoping that he could get them to pay policy limits if a demand was on the table. This would be a strong indication that their own lawyer has concerns about an excess judgment. I have a feeling that the adjuster assigned to this claim is the problem. Hopefully, an excess judgment will cost him his job. I have a feeling that the defense lawyer has covered his own ass by warning them in writing about the likelihood of an excess judgment, and the adjuster is just too dense to see that he’s being set up to take the fall if things go south.

  13. grant says:

    I received a letter from my lawyer stating my case has a settlement conference has been scheduled for Sept 28, 2012. Can you tell me more on what that means?

    • fl_litig8r says:

      Sounds like he’s set up a mediation. It’s probably set so far down the road to give both sides a chance to do a good amount of discovery first.

      • grant says:

        THat sucks, it leaves me in limbo. I have had my lowerback fused with a disc replacement and my neck I was gonna wait to see what I recover hoping its enough for a disc replacement. Its with a judge so will there be any talk of monetary value? Im thinking it might be good cause this would be my chance to actually get what I deserve withough a trial.

        • fl_litig8r says:

          Some judges are also mediators, but this should have no bearing on the mediation or your lawsuit. A judge acting as mediator won’t be ruling on any issues in your case. He is merely filling a role (neutral facilitator of settlement) that any qualified lawyer could.

          Yes, there will be talk of the value of your case. The whole point of mediation is to try to settle (the link I gave in my last comment is to my article on how mediation works). The mediator’s job (even when the mediator is a judge) is not to take sides or give opinions on the value of your case. He just helps each side identify the risks in taking the case to trial and helps move the settlement talks along.

          Usually mediation is your best chance to settle the case before trial. However, cases can settle before mediation (though yours might be tough, with the bad faith issues), or even after a failed mediation.

          At least now you know that your case is moving along. Also, the mediation deadline will help move discovery along as well.

          • grant says:

            what do you mean when you say discovery?

          • fl_litig8r says:

            Interrogatories (written questions that must be answered in writing under oath), Requests for Production (most used to get documents, like tax records, photographs, medical records, etc.), Depositions, Subpoenas (for items in the possession of third parties, including medical records, employment records, etc.) and Medical Examinations (also known as IMEs).

            “Discovery” is the broad term used to describe all the tools a lawyer can use to find out the facts about the other side’s case, and what evidence and testimony they intend to use at trial.

  14. grant says:

    Thank you, I will keep you posted on how it goes

  15. Gabriel says:

    My Attorney is saying that my case could be a “Bad Faith” case. The defendant careered off onto the sidewalk and crashed onto me. I got a leg fracture and an $80,000 bill. Defendant did not have more than 15k and so we agreed to take the 15k with the condition of releasing only the 16 year old driver(defendant). However, insurance did not agree and would not issue a release where only the defendant were to be released. They wanted my attorney and I to release everybody(the whole world), yet my attorney say we could just release her. Now can this be a bad faith case? Let me know if you need more info..there has been a declaratory relief filed. Could you explain to me more of what this is?

    • fl_litig8r says:

      If the insurer did, in fact, demand a release for everyone in the world, and not just for its insureds (and itself), then I’d think you have a pretty good bad faith argument. If it only wanted to add the drivers’ parents (who may be the owners of the vehicle and the primary insureds under the policy), then I would suspect it is not bad faith. Of course, California case law may say otherwise, so I’d trust your lawyer’s opinion on the bad faith issue.

      As far as a suit seeking a declaratory judgment, I’d need to know a little bit more. Whenever a party is unsure of its legal rights and requirements, usually under a contract, and that right is presently at issue (not just a matter of curiosity or speculation), it can ask the court to issue a declaratory judgment as to what its rights and responsibilities are. In my home state of Florida, these kinds of actions are often brought when there is a dispute as to an insurance coverage issue. For example, if the insurer believes that it does not have to cover a certain type of claim for which its insured has been sued, it can file a declaratory action asking the court to rule whether it owes coverage or not (and pay for the insured’s defense costs). I’m not saying that this is the type of claim brought in your case. I’m just giving a common example of when a declaratory judgment would be sought.

      In your case, I’d need to know who filed the declaratory action — you or the insurer. Also, if you have a copy of the Complaint in that action, the requested relief (what they are asking for clarification on) should let us know what the party is after. This can be found at the end of the Complaint. If it is a multi-count Complaint (e.g., one that specifies Count I, Count II, etc.) the relief would be requested at the end of each Count.

  16. Brenda says:

    I will make it short and to the point. I was rearended 2 years ago, totally other persons fault, I had surgery on my back, medical bills excess of 150K haven’t worked since accident.on pain medication, have been declared full disability. my attorney was excited and said we have a bad faith case, very strong all the right things to make it Very strong. we are waiting for a trial date. my question is we have mediation next month. what are the possibilities we settle at mediation and what dollar amount do you think is possible. My attorney said she feels comfortable saying that if we go to trial we are looking in the millions, punitive damages. we did everything right she said. this is in Florida

    • Brenda says:

      update information. after I was rearended I had to have my disk in my back fused. I had all sorts of tests and therapies, I am on pain management monthly, my diagnoises is that I am permanently disabled I am 60 years old, never had an accident. My attorney said that my case is a lawyers dream. possible millions in punitive damages at trial. She did everything by the book and they are bad faith.I know if it goes to trial I will be compensated for my losses and punitive damages will be right up there. My thing is I would rather settle at mediation, I am not getting any younger. any advice about mediation?what can be said to scare them into wanting to settle rather than be at risk to a jury for bad faith

      • fl_litig8r says:

        The threat of a bad faith lawsuit is pretty big to begin with. If the insurer hasn’t responded to that threat by now, I don’t know that there’s a whole lot more you could do to convince it. The only additional pressure you could bring at this point would be through a “Proposal for Settlement,” which is governed by Fla.Stat. 768.79 and Fla.R.Civ.P. 1.442. Using this statute, you make a formal written settlement offer to the defendant (this is different than just sending a demand letter), which the defendant has 30 days to accept. If the defendant refuses the offer or fails to accept within the 30 days, and later at trial you recover an amount which exceeds the proposal by more than 25%, you are awarded your attorney’s fees from the time the proposal was sent. These fees can be substantial, as they will involve all of your lawyer’s trial work.

        As an example of how this works, if you made a proposal for settlement today for $1,000,000.00 which was not accepted by the defendant and you went to trial and received a judgement for any amount over $1,250,000.00, you would also be awarded attorney’s fees.

        Note that a defendant can also use this procedure, with fees being awarded if you receive a judgment which is more than 25% less than its offer. So, using the same $1,000,000.00 proposal, but from the defendant, if you went to trial and received a judgment less than $750,000.00, you would owe the defendant his attorney’s fees from the time of the proposal (which would be deducted from your judgment against the defendant).

        I mention this procedure because if the defendant does offer an amount above policy limits at your mediation, it will likely be backed by the threat of submitting it as a proposal for settlement (some lawyers still call it by the old name “offer of judgment”) after the mediation.

    • fl_litig8r says:

      Most insurers are not willing to offer more than policy limits at mediation, even when it appears that they have acted in bad faith. So, don’t get overly optimistic about mediation. That being said, if the insurer’s bad faith is blatantly obvious (say, if it tried to tender policy limits but didn’t meet the deadline in your lawyer’s demand letter), you may have a shot at them offering more than limits at mediation. Without knowing more about your case, I can’t say what the insurer should pay. However, once bad faith is established, its liability is unlimited. So, ultimately you should recover the full value of your case, whatever that is. Punitive damages, especially in third-party bad faith cases (suing your own insurer is a “first party” claim) is far from a given, even when bad faith is proven. The standard for awarding punitive damages is higher than that of proving bad faith.

  17. Brenda says:

    My case is I was stopped at a stop sign and a car slammed into me, admitted fault. after some doctor visits and therapy I was told I needed surgery on my back. I saw an attorney and she sent a demand letter for polict limits as my medical bills at that time were in the 30K range and I still needed surgery, so my attorney sent the demand and gave them 30 days to respond. well they refused and told my lawyer that they knew I was a sue happy person and that I sued for 4 times in other accidents. anyways my lawyer told them they were mistaken me for someone else that I never sued or was in any accidents. they still refused. so after the 3rd chance the lawyer said that she couldn’t believe they would let this case turn into bad faith.She said that there is nothing that could make our case any stronger. that we are 100% bad faith canidates, we did everything that had to be done and now my medical is over 150K and I am permanently disabled. I mean I was approved for disability by social security. before the accident I was in perfect health, strong no defects. now I have to go to pain management monthly and am probably going to be addicted to pain medication, without it I cannot even get out of bed, I am in pretty bad shape. we did everrything all the depositions etc. and filed for trial, just waiting to be put on the docket. we do have mediation and because everything is positive going toward bad faith I would think that they would not want to be exposed to a jury. I was just wondering if everything was yes our way, what do you think would be the most that they would be able to settle at mediation to avoid trial

    • fl_litig8r says:

      Well, from what you’ve said it sounds like you do have a very strong case for bad faith (assuming the policy limits were so low that $30k in medical bills should have resulted in an immediate tender). It also sounds like you’ve got some pretty severe injuries, given your lack of pre-existing injuries, the current amount of your medical bills and the fact that you were approved for social security disability. It does sound like you have a really strong case not only as to liability and damages, but also bad faith.

      That being said, some insurers as a matter of policy insist on taking cases to trial before paying above policy limits. I’m not saying that this is rational behavior, but some would rather gamble on something bad happening for you at trial (or tying you up in appeals) rather than just roll over and pay more than limits. Has this insurer ever offered policy limits, or any amount above them to date? If not, that doesn’t bode particularly well for settling at mediation.

      You should know very early in the mediation whether this insurer will offer more than its policy limits. If not, it will be a very short mediation. While it’s fine to hope that the insurer will be reasonable and see that the odds are against it, you should prepare yourself for the possibility that you will have to go to trial.

  18. Brenda says:

    Yes the insurer offered full policy limits way after the demand letter was refused, my attorney was pretty estatic about the way they let it become a bad faith because we have such a strong case. Yes I am on full SSD all due to this accident, I was in great shape before the accident.we did offer a proposal for settlement and it was refused, my lawyer said that was the opportunity they had to avoid the bad faith and she was all excited that they turned it down. She still stands by the thing she told me that there is nothing that could make our case any stronger, it is like the perfect case, so I am very optimistic of getting what I deserve, seeing I will be disable the rest of my life I am only 60. I was just looking for some positive reassurance from someone else to keep me going, it has been a tough couple years, mediation is next month, any advice?

    Oh, my proposal settlement was half my total medical bills my attorney is very confident that we will get a judgement over 25%. That is why I would think they would want to settle without being put in front of a jury

    • fl_litig8r says:

      Well, it definitely sounds like your lawyer has done everything she can to apply as much pressure as possible to settle your case. I don’t mean to sound discouraging. It sounds like you have a great case. I’m just familiar with insurers acting like idiots at mediation. I had one insurer who never offered more than $250,000.00 to settle a case that it could have settled at mediation for $1,000.000.00 at one point. They wound up forcing a trial (and an appeal) and ultimately wound up paying well over $6,000,000.00. So, even when my client was bending over backwards to be reasonable and try to settle the case early, the insurer stupidly decided to dig its heels in and test its luck. This case didn’t even involve a bad faith issue, as there was $26 million in coverage.

      I hope the insurer in your case sees the light at mediation and offers you the fair value of your case. It just wouldn’t surprise me if it didn’t. So, while I support your lawyer’s assessment of your case, and I think ultimately you will have a very nice recovery, it may not happen at mediation. You need to accept the possibility of being in this for the long haul. Luckily, most insurers who get hit with an excess judgment at the underlying trial don’t force a second trial for the bad faith issue, especially when the bad faith issue is as strong as it is in your case — they just pay up at that point.

      Do you know if the actual defendant (the underinsured driver) will be present at the mediation? Having him or her there may bring some extra pressure on the insurer, as this is the person they screwed by not tendering policy limits. If this person hasn’t been notified by his or her own insurer about the likelihood of an excess judgment, and the fact that the insurer could get him or her off the hook by settling at mediation, he or she could prove to be an effective ally.

      • Brenda says:

        I got a notice from the court giving ma a court date for the second week of March, and a pretrial date 3o days before that, and it says that they want to split the jury what does that mean? bifractionate or something like that. anyways I go to mediation in less than 2 months, is it better for me that I have a trial date? and is it possible that the date would be moved closer as suits get sttled.

        • fl_litig8r says:

          I already answered most of your questions in response to your comment in this thread.

          As to your new question, yes it is usually better to have a trial date going into mediation, as it puts more pressure on the defendant. I don’t understand your last question: if your case gets settled, the trial would be canceled.

  19. grant says:

    You and I have spoke on several occasions regarding my case. New info as of today is there is a new lawyer on Defense who reviewed everything and wants to settle the claim. My lawyer told me this as well as the fact he has known this other attorney 20 some odd years. All of a sudden he is not confident and kept repeating the fact the my accicendt was low impact and didnt total my car along with pre existing back condition. Fine but I had zero neck problems and now have c5-c6 herniation and I am going in for my second injection this week. It has been a year and now that they are offering limits he is unsure it should go to trial. Is there anything I can do? I realize starting with a new attorney would suck but I would rather have someone that wants to fight for me because he feels the same way I do. We offered to settle 3 times and it was denied, that is why I said go to a jury. I dont know, my back surgery is dont but I still need my neck fixed. 25k just doesnt seem fair after everything Ive been through

  20. grant says:

    This is what I sent him. John, I believe the new attorney knows they are looking at a bad faith suit and is trying to minimize the damage. I know you haven’t seen more than policy limits offered at a mediation but it is possible. However that does not mean I would accept if offered more. I spoke with my wife and she also agrees that they had more than a fair chance to pay policy limits. Simply put we aren’t settling. I would tell the other attorney who is representing mendakota that policy limits are off the table and that they are facing a bad faith claim and their client (mendakota) stands to lose a substantial amount of money. We hold all the cards and they know it. I did not suffer from headaches, neck pain, numbness, insomnia, depression, weight gain and lack of intimacy for the past 12 months for them to finally decide to offer limits. Sir I may not be a lawyer but I am not a fool. With all my medical bills considered (153,000) and the fact I need a disc replacement in my neck ($40,000-70,000) would bring that total to 220k+, an insurance company puts that into their system and they will see what they stand to lose. Below is something I read regarding personal injury. So let’s take my prior injury out of the equation and just look at my neck injury. Regardless of what they say (low impact) my neck was in fact injured. So a 60,000 operation including other expenses (future loss wages, medical bills etc.) multiplied by 5 would still be $300,000 and they acted in bad faith on top of that. I would like us to go back to their attorney with our offer to settle for $263,425.00. Insurance companies act on the advice of their attorney’s, so as I said if he makes them aware of what they could lose along with our offer he would be wise to recommend settling. I know we can win and they know it to or they wouldn’t have came back and offered limits. I know I’ve offended you in the past and that is not my intention with this email. So please think about it. I would like to put this extremely painful and stressful event behind me and get fixed

    • fl_litig8r says:

      This seems like a pretty appropriate response, except for the part where you multiply your economic damages by a multiple of 5. That’s a bit steep, even for a runaway jury. A multiple of 2 or 3 would be more reasonable for settlement purposes, though no multiple is guaranteed at trial. Of course, even with no multiple, you’re well above the $25k policy limits.

      If your lawyer can come up with a reasonable argument for why he thinks you wouldn’t recover well beyond $25k at trial, you should listen with an open mind. If he can’t come up with a reasonable argument for this, it just sounds like a case of cold feet. This doesn’t mean that he won’t do a great job at trial, if pushed to do so. It just means you’ll have to be firm, but polite, in refusing to settle.

  21. grant says:

    I agree. From everything I have read minor injuries are usually multiplied by 1-2 and more severe like needing surgery would be by 5. His reasoning is colorado jury’s dont tend to award much when vehicle damage is minimal. I expressed again as long as he argues the full size spare on the rear of my jeep saved thousands in damage we should be fine. The defendant is also claiming I slammed on my brakes and I cut her off. Only problem is I was at a complete stop and have an eye witness who corrobarates that. Either way like you said I am well above the 25k limits…..I told my lawyer that I have not dealt with a headach for the past 12 months along with, lack of sleep, depression, anxiety, loss of intimacy and loss of physical activity for chump change that wont cover my medical expenses.

  22. grant says:

    I got a email from attorney that the defense sent. They are urging me to settle because the defendent has no assets and I will only collect 25k. Doesnt it sound like they are unaware of the third party bad faith? Ive read articles where insurance companies denied policy limits that were justified and they ended up in court costing them a lot more.

    • fl_litig8r says:

      Wow, that’s a new tactic — a defense lawyer almost admitting that your case is worth more than policy limits, but arguing the insured’s poverty as a reason you won’t collect more. Of course, the fact that the defense lawyer even took the time to inform you that the defendant has no assets tells me that he is afraid of an excess judgment.

      Obviously he doesn’t want to bring up the potential for a third-party bad faith case — though he is certainly aware of it. He wants to BS you into settling for limits. Keep in mind that most plaintiffs have never heard of bad faith lawsuits. He doesn’t know that you are an exception. That letter would sound pretty convincing to an uneducated plaintiff (of course one would hope that his own lawyer would tell him about bad faith law).

      I would take this letter as an encouraging sign. If they were really confident that your case was worth less than $25k, they wouldn’t bother discussing the assets of the insured.

  23. grant says:

    I agree it is encouraging. My attorney said the defense was pissed I didnt settle for limits. He also believes the judge at the settlement conference will tell the defense they are F****D and there is talk we may not have the settlement conference since I am not accepting limits. He also thought bringing in an economist was a good idea since my military career is hanging in the balance and I will most likely be medically discharged.

  24. grant says:

    oh you would hope my lawyer would have brough up the bad faith law but if it wasnt for you then it never would have been mentioned. Ive learned a ton from you. Thanks to you I was able to bring up the 3rd party bad faith. If I hadnt then he would still be shooting for the limits. Another thing you educated me about was, what if she claims bankrupcy? My lawyer said if she does then we are screwed. Thats when I told him no we arent, we would just have to get the bankrupcy court to award us her bad faith claim. My case is far from over and I have no clue of what the award will be, but thanks to you and the information you shared I am still fighting and have a chance to win a substatial amount. Thanks Again

    • fl_litig8r says:

      It sounds like your lawyer is coming around to the idea, which is great. Don’t be too tough on him about not being well versed in bad faith law. I had the benefit of learning the ropes from one of the top bad faith lawyers in the country.

  25. Pam says:

    Hello,
    I had a rollover accident in Texas. A young man was driving a rental car rented by the car’s passenger. He was not an authorized driver. Her insurance, Farmers, is willing to pay the policy limits. I cannot collect until his insurance, AllState, settles with me because this is a permissive driver case and the driver is insured on both policies. The secondary insurance, AllState, has offered $2000. When I rejected they told me they would send my medical records for a peer review. The very next day they reconsidered and went back to their offer of $2000 and they are not sending my records for a peer review. My UIM has already paid $25K.
    I have a back injury and the back specialist gave me pain medication now, he encouraged me to get injections to reduce the disc pain but I rejected for now. He wrote in my records that I will need injections in the future to keep the discs from rupturing, physical therapy, and possibly surgery.
    I sent the secondary insurance a demand letter for the policy limits. When they offered $2000 I sent a second letter stating that I would settle for the policy limits if they settled in 10 days. I am one week from that 10 days now and the insurance company has called to tell me I have been fully compensated for the accident and their offer of $2K stands. They included the compensation from my UIM as being compensated.
    My UIM agent said my claim was evaluated at $55K. I will receive $30K from the secondary insurance and I did recieve $25K from my UIM. But it’s my understanding that my UIM is third in line to pay, not second.
    Should I wait until the 10 days have passed to make any movement on this claim?
    Should I take the $2K and feel that I am fully compensated?
    I am 50 years old and I now have pain in my back that interferes with my daily activities as well as my job. These are the years where I am working hard to get my retirement in place and I am afraid I won’t get to work as many years as I had planned because of my back.
    The secondary insurance company also stated that because I did not have surgery my claim wasn’t worth as much. And they also stated that many people live with as much pain as I have and have never had an accident.
    They also said they called my UIM insurance company and my UIM did not have any knowledge that they existed. I have a voice recording of my UIM talking about my claim with AllState. When I called the UIM adjuster he said he told them what they wanted to hear and told them they should offer me $4K or $5K to settle the claim and get a settlement. I think he threw me under the bus, and I am not sure why. I think he should not have paid me the UIM policy limits. I did call after receiving the money and asked if I made a claim with AllState would they want a portion of their money back. My UIM said no, as far as they were concerned I had settled with them and it was done and over with.
    Could this be a bad faith claim?
    Should I sue their insured who is only 21 years old?
    Thank you for your time.

    • fl_litig8r says:

      Well, you are correct that your UIM should have been third in line to pay. They probably screwed up and paid way more than they should have. Getting $55k for a back injury with no surgery is quite a feat (a doctor saying that future surgery is “possible” usually doesn’t get you far). So, in that respect, the secondary carrier is correct — as to “many people have this kind of pain without an accident”, that argument is irrelevant.

      Because your UIM carrier is not asserting any subrogation rights, I doubt that you’ll be able to turn their error in overpaying you into a double recovery (via the secondary insurer). If you were to sue, depending on your state law the secondary insurer may get a set-off for both the primary insurer and the UIM (it’s pretty rare that the UIM pays out when a BI carrier is still holding out, so you may be in uncharted territory).

      I doubt that this would make for an attractive bad faith case, just because you’ve already gotten $55k on a non-surgical case — beating that, plus the $2k offer from the secondary insurer seems pretty tough, unless there’s something about your damages that you haven’t stated. A lot of this would depend on whether you could take advantage of the UIM carrier’s blunder and not have its settlement set-off against a verdict — I kind of doubt that you could, though.

      Unless you want to shop this around to a local lawyer to explore the UIM set-off issue, I’d suggest just getting the secondary carrier to offer as much as you can (see if they’d go to the $5k your UIM carrier mentioned) and be happy. It really sounds like you’ve gotten a very good settlement. If you did this while avoiding paying attorney’s fees, kudos.

      As a warning, if your health insurance has been paying for your treatment so far, there is a good chance you’ll have to pay it back, either entirely or in part. Consider that when evaluating your settlement.

  26. Pam says:

    Hello again,
    Can you tell me that when you will not settle with an insurance company and they send your medical records for a peer review could this really be a good thing for you or is this just a ploy for the insurance company to get an expert to say your claim is really not worth more money? Are peer reviews really from independent reviewers that will offer a purely objective opinion?
    Thank you.

    • fl_litig8r says:

      Most of the time when an insurer sends your records for a peer review, it is not going to come back with a favorable finding. The peer review doctor knows who pays his checks, just like an IME doctor. A peer review is basically just an IME without the exam.

  27. waynenpain says:

    I was in a auto accident in Texas and was rear ended. It’s been a little over 4years and 6 months into this law suit. We went to mediation and the defense offered 5K. The person that hit me has a 300K policy. We asked for the full policy as I have severe neck injury. At first the insurance company lied to us and told us she had only a 25K policy. I am being represented by a attorney. My trial has been set now 5 different times first time was because of a murder trial,that I can understand. The next 3 times the defense asked for continuance,the 5th time the court canceled because of a previous trial had not finished and was extended. I have been waiting since July 16 for a new trial date but so far I cannot get one. My attorney has hired 2 other attorneys to his firm and has let them handle my case. I didn’t like that but I guess I have no rights there. I talked to one of the new attorney’s and she said they are waiting on the defense to get back to them to agree on a new trial date. I called about a week later and she told me they have not got back to her that they must be on vacation or something. That did not set good with me at all. All I get from my attorney’s is the courts are the ones to set a new trial date and there is nothing they can do but wait. I also talked to my attorney I hire at the start about filing a bad faith law suit. He agreed and even sent me a email that since we are filing a bad faith law suit we will be asking for much more than the policy limit. Now he is telling me we cannot file a bad faith suit that only way we can do that is if we were going after my insurance company. I have been suffering all this time and cannot get any medical help. My spinal doctor asked me if I had disability I said no but I have filed for it. I told him I need a report from him that my condition is getting worse. He said not a problem.
    Here is his report.
    This is a patient we have been following for some time. We are awaiting approval for his cervical surgery.He was involved in a motor accident back on Jan 28 2008. He was rear ended at a high velocity and had a hyperextension injury to his neck. Since then he has had severe neck pain,more in the upper left extremity. Investigation shows he has pathology with cord and root compression at 3 levels. We have recommended that he have a 3 level anterior cervical diskectomy with partial corpectomy at the c4-5,c5-6,c6-7
    We last saw him April 2011 more than a year ago. His left arm pain and weakness has progressed to the point he is having significant problems abducting his shoulder, indicating c-5 nerve root injury is progressing at the c4-5 level as well as elbow extension in the c7 nerve root.
    This patient in my opinion is totally disabled and will remain so for the future. He is seeking Social Security benefits which I would totally agree with. Once he has obtained these benefits and has medicare we can do the needed surgery. His spinal cord compression is also progressing and his symptoms of ataxia and weakness in the hands are progressing. He has documented damage to the cord on T2 weighted images in the past on his MRI scan.

    He seems to be the only one concerned about my pain and suffering and medical condition. My attorney just seems to be dragging this as long as possible and I am to the point the walls are closing in on me. Most of the time when I call he is in deposition or not in or something.
    Is there anything to do to make the courts set a new trial date. My attorney says we don’t want to piss the judge off so don’t push it. We are suppose to be having a jury trial. I have caught him in so many lies. I am not sure he is working in my best interest. He told me the defense doctor agreed that this accident could have caused this injury. They are saying she was only going 2 miles per hour when she hit me. Her car had about 2K in damages. I think she was either talking on the cell phone or texting but I cannot get my attorney to investigate that. I know a person walks at a speed of 3-6 miles per hour so to cause over 2K in damages to her care means I could have been walking and done all that damage to her car. My truck was a tough truck it bent the bumper and bent the bracket. They are trying to say there is no way I could have been injured from this accident. Should I look for other counsel. I did call a couple of attorney’s but they would not return my calls.

    • fl_litig8r says:

      I really wouldn’t look for another lawyer at this point. It sounds like all the work on the case is done, except for the trial. At this point, if you fired your lawyer you’d wind up still owing him a substantial fee — not to mention that very few lawyers would want to take a case on at this late stage.

      As to the problem with setting a new trial date because the defense lawyers won’t provide available dates, you could suggest that your lawyer schedule a case management conference. This is basically a hearing before the judge to address scheduling matters, so it would force the defense to disclose its trial availability.

      Your lawyer has no reason to drag this out. He doesn’t get paid until you do, so I doubt that he’s happy about the trial being pushed back so many times, either. If it seems like he’s ducking you, he may just be sick of you complaining to him about something he sees as out of his control. You’ve been patient this far — don’t screw up your relationship with your lawyer when you’re so close to the end.

      • waynenpain says:

        Thanks for your answers but can we file a bad faith suit against this insurance company in my case

        • fl_litig8r says:

          If your case actually goes to trial and you get a judgment in excess of the $300,000.00 policy limits, then you could have a bad faith case (assuming that a reasonable insurer would have known that it was a $300,000.00+ case at the time the settlement offer was made). It isn’t something you need addressed right now, as your bad faith case won’t even arise until you get the excess judgment.

          • waynenpain says:

            so are you saying if my case goes to trial and i get “more” than 300k then I can file in a different law suit a bad faith suit,right? Will I be able to use a different attorney or do I have to use the same one?I am not understanding the part you said (assuming that a reasonable insurer would have known that it was a $300.00.00 plus case at the time the settlement was made). Just not understanding the terminology in that sentence!!! Can you put it in a easier to understand sentence please.

          • fl_litig8r says:

            Yes, the bad faith lawsuit is separate. The same attorney can handle that case as well, or he could refer it to a bad faith specialist (depending on his comfort level).

            The part where I discussed the reasonableness of the insurer goes to the heart of a bad faith case. An excess judgment is not definitive proof that the insurer acted in bad faith. If a jury determines that the insurer was reasonable in rejecting an offer within its limits, you can still lose the bad faith case. The insurer has a duty to its own insured to settle within policy limits, if it is reasonable to do so. So, if an initial demand for policy limits is received at a time when it doesn’t appear that the case is worth very much, and then later facts are presented that make the case appear much more valuable, the insurer would not have acted in bad faith if it did not have the opportunity to settle within limits after the new facts came out.

          • waynenpain says:

            My attorney had a deposition with the insurance co’s doctor and he said that doctor agreed this injury could have happened due to this accident. He said he was confident we could win the case. with that being said knowing my condition and knowing I need this operation would that make them be acting in bad faith? I still have no trial new date. something is going on,my attorney said if they do not contact us to come to a agreement for a new trial date. Here is what my attorney says:::Since we repeatedly haven’t heard back from opposing counsel, if they don’t give us an agreed date by 1:00 pm today, I’ll be filing what’s called a Motion to Set. This is a procedure to get a trial date when the parties cannot agree. Up until this point we’ve been trying to follow the Court’s instructions to agree on a date, but opposing counsel has been very uncooperative.

            We’ll be asking for the Court to set us on the docket for November 12. This is a little later than we wanted, but because we’re having to file a motion to set, we will have to give the Court time to consider it and still have time left over to update anything that needs to be updated before trial.

            I understand how frustrating this is, and please rest assured we’re doing everything we can to comply with the Court’s instructions and move your case forward to trial.
            Since the defense attorney’s uncooperative will that help to prove a bad faith claim?

          • fl_litig8r says:

            I really can’t say whether your case is worth more than $300,000.00. It could be, based on the injuries you described, but there are too many variables to consider to allow me to make even an educated guess as to whether it clearly is. So, I can’t tell you whether the insurer committed bad faith by failing to tender its policy limits. As I said before, you’ll need to get an excess judgment to bring your bad faith case anyway, so the amount of your judgment will be your best indicator of the validity of your bad faith claim. It doesn’t sound like the defendant is worried about bad faith, as normally when they are they desperately try to get you to accept policy limits.

            I’m glad your lawyer is requesting that the court set a trial date (this is pretty much what I suggested in him asking for a case management conference). Courts prefer that the parties handle most scheduling matters on their own, but one can only wait so long for the other side to respond before bothering the court.

            The defense lawyer’s failure to discuss trial dates with your lawyer won’t make any difference in the potential bad faith action. That really just boils down to whether the insurer could and should have settled the case within policy limits, causing its own insured to be exposed to personal liability for a judgment exceeding the policy limits. Stalling tactics during litigation aren’t relevant to that analysis. While what the defense lawyer is doing could be considered “bad faith” in the conventional sense of the term, it is not “bad faith” in the legal sense of the term.

          • waynenpain says:

            Ok one other question. If we go to trial and I win either the policy limit or more can the defense appeal the verdict?

          • fl_litig8r says:

            Appeals aren’t meant to attack verdicts with which you disagree. There has to be grounds for an appeal, such as reversible error (an error so grievous that it could have affected the outcome of the case) committed by the trial judge in ruling on a motion or evidentiary matter, for the appellant to have any hope of winning. If the jury renders a verdict which is completely unsupported by the evidence, the trial judge himself can correct this either through remittitur (reducing the verdict to the maximum amount supported by the evidence) or by ordering a new trial. This is very rare, though.

            So, while the defendant technically could appeal practically any verdict (as can you), this would be a waste of time and money unless it truly has good grounds. There are too many possible grounds for appeal to explore them here, but just know that most appeals fail to achieve a reversal. It would probably cost the defense more to appeal without grounds than it would save by delaying paying you, so I wouldn’t expect them to appeal just as a delay tactic.

          • waynenpain says:

            Ok thanks for all the information. I talked to my attorney today,my new trial date is set for Nov. 12th. I sent my attorney emails and he thought I was being harsh and rude in my emails,I asked for the pay off on a loan on my case. then I said in a different email please give me the docket number and time and court room number,I did state that all that should have been sent in the same email as the new trial date. But I have to ask for it every time my trial has been reset. Then I sent them all my new information,new address new phone number and the attorney that is working on my case called my old phone number to give me the trial date,it is still a working number but I asked that all calls be to my new number. I also asked that all corospondance be sent in a email so I have a paper trail. After speaking to my attorney and explained I felt there was some incompedense in his law firm he said he was sorry and all updates will be called to my new number.. I also told him I found a place that is a free clinic and they are willing to see me and search for a spinal surgeon that will do my operation pro bono he advised me not to do that as it might hurt the amount of money we could recover in the suit. He said they would have the doctor in the court room and put him on the stand saying he did it for free. Then the defense would say then we do not owe him for the operation since he got it done free. Is my attorney telling me getting the operation pro bono is a bad thing the right thing to tell me?

          • fl_litig8r says:

            Well, your first mistake was using the word “incompetence” when dealing with your lawyer. I don’t care if that’s your opinion. If you want to keep a good relationship with the firm, you need to be more diplomatic. The “squeaky wheel may get the grease”, but a client who squeaks too much could find himself fired. If you’re going to express your displeasure, there are ways of doing it without coming off like a jerk.

            As to your lawyer telling you the consequences to your lawsuit of getting a free surgery, I see nothing wrong with that. He’s correct in that you would not be able to recover anything for it and that it would devalue your case. He is wrong to tell you whether you should or should not have the surgery. I always tell my clients that their health comes first — consequences to the lawsuit are a secondary concern.

            Knowing the consequences to your lawsuit of having this surgery, it’s up to you to decide whether you want to proceed with it for health reasons or whether you can wait until the case is resolved.

          • waynenpain says:

            Ok my trial date has come and gone,we wentto the court room and the judge ordered us to go to mediation, We went to dallas tx to mediate but the insurance co would not budge so that was a waist of time and mediation money. The insurance co offered 60k,then next thing I know its 50k. after we left the mediator I went home and I got a email from my attorney that he has settled my case for the 55k. I waited a couple days and I emailed him back and told him I have given this matter lots of thought and I have decided to go head and take my chances in trial. He sent me a email saying if I did not settle for the 55k that I would be in breach of contract. I did not sing anything saying I would accept the 55K nor did I say verbally I would. I told him 5 years and 10k is just pennies a day. They have sent me a settlement form to sign,here is how it reads,attorney fee 40%-$22,000 reduced by $9,467.72=12,532.28,,,expenses $9,258.06 (breakdown)= taxable court cost(petition/service/mediation/depo)+$929.00,,records request+ $2,037.01,,travel & parking=332.05,,expert witness fees Dr **** $5,460.00,,advance from settlement $500.00,,//
            medical providers*=$17209.66 (breakdown)=dr1 $1,763.24, dr2$1200.00, dr3$3000.00, dr4$1800.00, dr5$313.13, dr6$5000.00, dr7 $3000.00, dr8$1,133.29,,,now here is the big kicker that i cannot believe, the loan i spoke of to u a while back,loan is for 6k,,about 4 months ago the pay off was over 23k now the payoff on the loan is 6k,,how can that be,,those people do not loan that kind of money without some kind of interest.
            I have contacted an attorney that takes on underhanded attorneys but it’s been a week and I haven’t heard from him,I called today and his secretary said he is still reviewing it and will be getting back to me. If he will not take my case is there any thing I can do to keep them from forcing this settlement on me. They sent the paper work to sign about a month ago,they have not contacted me about why I have not sent it back to them. A good friend of mine said do not sign it,so taking his advice. I felt the same way. Is there a mandatory deadline for this to be signed? MY ATTORNEY is not representing me as I would expect him to represent me. The insurance adjuster at the mediation called her boss and guess where he was in vegas spending the money he will not have to pay me. and I was told he said we go to hell he will not budge from the 55k.

          • fl_litig8r says:

            I’ve replied to this after your subsequent comment, which contained further information.

  28. grant says:

    Ok Im back. This may get confusing lol. My current accident as you know is going to trial. My insurance company decided they would pay my $25,000 UIM with no stipulations. Yesterday something told me to call USAA and ask some questions. See back in December of 2010 I called and raised my liability and UIM to 100k. After my next accident Aug 2, 2011 I looked at my limits and they were still at 25,000. So I called and the guy told me the rep that I talked to left some notes stating I needed to go online to complete the process. Well I called USAA yesterday and asked the rep on the phone if I were to make any changes over the phone with her would I need to do anything else on my end like log into my account. She said no its all done on her end and it would be effective at 1201 am. I recorded the entire conversation. Then today I did some digging and found the document where I made the change in my policy Dec 11, 2010. I informed my attorney and also sent him the proof. My question is should he really collect 33.3% of the 100k since I did all the work and figured it out? Or should he just be entitled to the 25,000 which is what he originally thought I had?

    • fl_litig8r says:

      If the insurer pays out more than $25,000.00 he will be entitled to a percentage of the whole recovery. How exactly was he supposed to know that you had raised your limits if the paperwork he had reflected lower limits? Regardless, it is unlikely that your insurer would pay up without a fight if you didn’t have a lawyer, so it’s not like his presence had no affect on the outcome. Has the insurer even agreed to the $100,000.00 limit yet, or to pay anything more than $25,000.00? If not, he may have quite a bit of work left to do, yet.

      • grant says:

        I mentioned in the first meeting that I had raised my limits to 100k in December but a USAA rep told me I forgot to do something online that would have made it effective. Of course that turned out to be untrue. But it was mentioned to my attorney in the beginning. The fact that he brushed it off as insignificant is not my fault. That should have raised an eyebrow and prompted him to get on the phone to the insurance company to ask the questions about my phone call wanting to raise my limits. Me deposition is in 8 days and they also want me seeing a Dr that is for the defense. He will just try and discredit my injuries. I have had headaches from a young age as well so they think a neck injury was prior to the accident lol seriously? I got headaches twice a week, now almost everyday. Not to mention the stabbing pain between c5-c7. Anyway I know he is entitled to a percentage I just dont think it should be as large. I feel he should reduce the fee IF the insurance company complies. So no they havent offered it yet. If they do not then yes hes in for a fight and a bad faith claim in which I would agree 33.3% is justified. On this specific matter if it does not go down that road and they offer it, in good concious I know I couldnt take the 33.3 if a client of mine made the discovery especially if he mentioned in the first meeting. His memory loss shouldnt affect me monetarily

        • fl_litig8r says:

          Well, seeing that you told your lawyer about the attempt to increase UM limits at the outset (which wasn’t clear from your last comment), then you certainly have an argument for him cutting his fee on the new $75,000.00. I doubt that he would (or should) waive it entirely if he still has to do work to get you the increased amount. If he has to litigate the coverage amount and force them to pay more than the $25,000.00, he is entitled to a fee — maybe not his full percentage, but certainly something, depending on the amount of work required. Hopefully you can both come to a reasonable arrangement in light of his failure to pursue the issue initially as well as the amount of work he now has to do to secure payment of the higher amount.

      • grant says:

        Yeah i have many IP addresses due to being government and using a Gov computer. Can you post for my last message. Thanks

  29. grant says:

    i posted a question and now its gone? how does that happen?

    • fl_litig8r says:

      I see that your IP address is different for this comment than the last. If your comment is awaiting moderation, you can only see it from the computer it was posted from (no one else can see it until I approve it — an anti-spam measure). So, it wasn’t gone. You just couldn’t see it from a different computer until I approved it.

  30. ST says:

    Does the defendant have to assign his potential BF claim against his insurer to the plaintiff or can he bring the claim himself? Does the Defendant have the right to hire his own counsel or maintain an associate counsel to protect his rights if he does assign his claim? If so, is the defendant’s counsel entitled to a referral fee from the bad faith attorney should the case result in settlement or verdict against the insurer?

    • fl_litig8r says:

      It can be handled several different ways, depending on the state and the preference of the plaintiff. Usually, the plaintiff’s lawyer will choose the method which is most advantageous (and ensures payment), given the state’s laws. If the plaintiff decides to allow the defendant to bring the claim, there are ethical issues which would prevent the plaintiff’s lawyer from requiring the defendant to use a particular lawyer to handle the case (the law strongly favors people having the right to choose their own lawyers). This is one of the factors which weighs in favor of an assignment (the plaintiff controls the litigation).

      If the defendant assigns his claim, he no longer has the right to control the litigation. If he chooses to hire his own lawyer at that point, he’d have to pay him out-of-pocket, and that lawyer would not have any control over the case. The plaintiff/assignee’s lawyer would not owe the defendant’s lawyer any fee (it wouldn’t be a referral fee, anyway).

      • shelley says:

        north carolina – a year ago, my daughter & husband were on a training ride and were rearended by a car traveling 50 mph. she- a collegiate cyclist- and father were airbourne then landed in a ditch. she was unconscious. they were transported to trauma er. she – tbi, broken ribs, broken fibula, bone contusions, torn cartilage in knee, stitching & deep scarring, sever sprain to foot, road rash, has exceeded the 21 yr old’s insurance amount of 50k/person and she still has many appts to go. husband fractured vertebre & 6in scar. our UI is 50k. we are in danger of foreclosure, no $ to pay bills for medical treatment, her competitions missed & peer support at college, she has marked limitations. we are trying for disability. please guide us. we can’t understand why driver can resume life but we are losing lots. attny has confirmed their policy. discourages us from trial as driver doesn’t posess equitable items. thank you for your time.

        • fl_litig8r says:

          I’m sorry to say that it sounds like your lawyer is correct. If you’ve exhausted the tortfeasor’s BI limits (I assume that they tendered those immediately so as not to commit bad faith) and your own UIM insurance, there isn’t any other source from which to recover damages. Most people are judgment proof (especially those who have low liability insurance limits), so there isn’t any point in going to trial against a person who can’t pay a judgment. The only way to really protect yourself from other drivers is to have a lot of UM/UIM coverage.

          I wish you luck in pursuing her disability coverage. Hopefully she will be approved so she can get either Medicare or Medicaid, depending on whether she qualifies for SSDI or SSI coverage.

  31. marilyn says:

    on march 2008 i was behind a SUV waiting for a red light to change all of the sun i got hit really hart from behind my car wish make my car hit the car front of me i don’t remember my accident since i was unconscious a near cop who knew me stop by call a unbalance and my car was total lost wile in the hospital i dint know my kids due to a short lost memory i was sent home had a lot of dr treating me to many of them i dislocated my jaw ,lost of hearing both hears,have 3 disk on my back crack my both knee ,have carpotunel on both hands .also rds on my both legs stage 3 aim in a wheel chair,and still having short memory lost due to the injury on my hears,,i am constantly depress i have no life know .lost my business,and cant work on a job had before to,,my lawyer got 15,000 settlement and paying the dr and hes fee i got 8,000,know my lawyer put a law suit to my insures we when to arbitration and the arbitrator ,,set for 60,000for policy limit,,after few days they refuse to pay my lawyer file a law suit fo personal lost and injury’s one million dollar to court ,the court sent us to arbitration on august 14 2012 the arbitrator heard the layers side and when i when in in a wheel chair they was impress and i told the arbitrator my story about the accident i cant still remember and my injury’s do the accident and rsd ,wish aim in a wheel chair my lawyer have all the prove of mine dr and treatment the arbitrator set all injury’s and personal lost and wages for 2000000,,hum the insures lawyer say aim lien and they not paying my lawyer have all prove and my lawyer say he gonna take them to trial with all prove i don’t know if i get the million law suit in trial but today i call and the secretary lawyer told me that he put a demand on the ins company wish i would know cuz my lawyer is away for 2 days what demand would that be to pay the 2000000settlement before he take them to trial ,,i don’t know what is gonna happen,,the insures don’t wanna pay ,,what will happen can my lawyer go higher on policy limits more that 2000000 for all aim suffering living on social security disability aim disable know,,can you explain all my possibility here please ,,nj resident

    • fl_litig8r says:

      From what I can gather from your description, your lawyer settled with the driver that hit you for $15,000.00 and then requested $60,000.00 policy limits from your own UM insurer, who refused to pay. If this is the case, then what you potentially have is a first party bad faith claim against your own insurer, which is different than a third party bad faith claim as described in my article.

      Significantly, a first party bad faith claim does not allow you to sue for the full amount of your damages if your insurer fails to tender its policy limits. So, while your damages from the accident may be $2 million, you wouldn’t be able to ask for that in a first party bad faith case. In New Jersey, you can recover typical “breach of contract” damages for first party bad faith, meaning both the benefits due ($60,000.00) and any damages which naturally stem from the insurer’s failure to timely pay them. For example, if you lost your home because you couldn’t pay the mortgage while waiting for payment, additional damages could be awarded for that. Attorney’s fees can be awarded in such cases, as well as punitive damages if you can show that the wrongful claim denial was particularly egregious or “wantonly reckless”.

      So, while the purported $2 million value of your case would be relevant to whether the insurer should have paid the policy limits, and whether its denial was so blatantly unwarranted as to justify an award of punitive damages, it would not determine the amount of damages you are entitled to recover.

      In third party bad faith cases, the only reason plaintiffs can recover the full amount of their damages from the accident is because of an excess judgment being entered against the at-fault party. The at-fault party has been damaged by its own insurer’s failure to pay policy limits in an amount exactly equal to the excess judgment. The at-fault party then assigns this claim against his insurer to the plaintiff to avoid having the plaintiff try to recover the excess amount from him personally.

      In first party bad faith cases, such as yours, your insurance company hasn’t exposed anyone to an excess judgment by refusing to settle within policy limits. It owes no duty to the at-fault driver (who in this case, has already settled, anyway). So, what you’re left with is your own damages from its failure to pay policy limits, which are not the same as your damages from the accident. Of course, if you can establish grounds for punitive damages against the insurer in the first party bad faith case, these may run into the hundreds of thousands or possibly millions.

  32. grant says:

    Well as I said Deposition is over and it went well, I did break down and cry once when he asked about me and my wife trying to have a child and then the accident happened and I of course lost interest, he then asked if my wife ever became pregnant and tears hit me instantly. He is trying to tie my low testosterone levels to my libido not the accident itself. He then asked if I could have children or if I had been tested. I recently just did get tested and found out my chances are pretty much zero. My surgeon states I will be light duty for the rest of my life. Im never going to be the same man. Just the other day I removed some KT tape from my back and hit sent pins and needles down the ride side of my body. Pretty heart breaking considering my 15 years in the military. I wont even get that retirement. Defense also asked if I had filed any other disability which I had started a couple months prior to the accident with the VA due to so many people telling me I should try because I could still remain on duty with a 30% rating. With the aggrevated pre existing back and the new neck injury injury requiring surgery my med bills are close to 160k and my surgeon put an estimate of 75,000 for future care. You know my story as you have answered a lot of my concerns. With med bills possibly being 235,000 and lost wages being anywhere from 340,000 to 1.4 million, and of course pain and suffering. With this case have a settlement conference on the 28th of this month and assuming the defense knows what it is up against for not paying policy limits of 25,000 if they were to offer more what would you ball park it at?

    • fl_litig8r says:

      Well, now that you know the full value of your case, it’s really a matter of weighing the risks of going to trial (there are always risks, no matter how strongly you feel about your case — juries don’t always agree with us) and the value of settling now versus possibly waiting years to get paid. Remember that the defendant could tie up your case in an appeal even if you win, which would probably result in having your bad faith case stayed until the appeal is resolved. Then you have to win the bad faith case, which could possibly be delayed if the defendant files for bankruptcy rather than just willingly assign his case to you.

      So, it comes down to the value of sure money now versus speculative money (perhaps a long way) down the road. That’s a value only you can determine. Of course, the defendant may make it really easy for you to decide at the settlement conference by not even getting into a reasonable range. If they break $400,000.00, that’s the point where I would think the decision becomes harder.

      • grant says:

        I couldnt agree more. If everything goes smooth and the defendent does just hand over her bad faith rights then we have to win that. However I do feel when an excess judgement is issued by a jury and facts remain facts that the insurance company indeed did act in bad faith by not paying limits when they should have. Now Ive been asked what amount would you settle for? That is a difficult question because you are asking me to put a price on my military career which I cant do. Most people settle because A. they need the money for bills or B. they just dont want to wait. I on the other hand plan to wait as long as it takes until I feel things have been made right. I dont feel the Doctors can further improve my back and I will always have pain. Since my neck has yet to have surgery I cant speculate. But if I had to say what would it take to settle then 500,000+ my legal fees and medical if the insurance company waves their subbrogation rights. Which shouldnt be hard since the make whole law came into the picture. My IME is on the 27th and Settlement conference is the 28th. My wife has a deposition on the 14th of this month so any advice for her? Besides telling the truth.

        • fl_litig8r says:

          Well, your deposition transcript probably won’t be available for her to review before then (if it is, the best thing she can do is read it), so I’d suggest having her review your interrogatory answers and get a briefing from you about what you said in your deposition. You want to make sure you’re both on the same page.

          • grant says:

            Ok I will do that. So since I am sure they are aware of the bad faith case since the attorney they have specializes in bad faith cases. With knowing what you know, if you were the defense would you do what the insurance company tells you and say nothing or advise them of the situation they are in and recommend paying out? Basically if you were the Defense, knowing what you know about my case which is everything, what would your advice to the insurance be?

          • fl_litig8r says:

            The defense lawyer probably won’t make a recommendation. He will cover his ass by telling them about the risk of the bad faith case and possible outcomes. He has to be somewhat diplomatic, as defense firms rely on repeat business from a small number of insurance companies. If he seems too pushy as to settlement, the insurer may get pissed off at him and take its business elsewhere. If he doesn’t give them sufficient warning and they get hit with a bad faith judgment, then they’ll definitely fire him (and possibly sue for malpractice). So, he’ll take a balanced approach and tell them what the chances are for a bad faith judgment and what he thinks that judgment could be (probably a range). Then he’ll leave it up to them to decide what to do with the information.

  33. grant says:

    They also canceled my physicians deposition which makes me wonder. Why would they do that just before a settlement conference? THey cancel his and want one with my wife wondering how it has affected us.

    • fl_litig8r says:

      Think of it more as a postponement than a cancellation. They’re probably just trying to avoid the cost until they see if the case settles. They still have his medical records, from which they can discern his opinions.

      Don’t read into this that they are going to make a good effort to settle the case. They still might be planning on showing up just to see if they can convince you to take policy limits.

  34. grant says:

    I would say they are in for a rude awakening. I did the math and the very low end is 1.52M and the high end is 3.75M. I made a chart and explained the math. My offer of 1.42M is fair. Thats the starting point of negotiation. An insurance company decided they would not pay policy limits and acted in bad faith. It settled out of court for 3.5M I mentioned in this letter to the Defense attorney his client (insurance co) acted in Bad Faith. I told him his first obligation is to the insured not the insurer. Legally he has to advise her of her options. I as well made them aware if she does not sign over the bad faith claim I am willing to pursue the case and ultimately end up with the claim from bankruptcy court if necessary. Im sick of being in pain, and knowing my military career is over. They obviously dont know how serious I am. The only things they have against me dont even have any relevantcy (sp?) to the case or the fact I was injured. They can harp all day on vehicle damage. It doesnt replace fact. I had a car back into my wife in a parking lot and do 2,600 in damage, why because of where she was hit.

  35. grant says:

    Clarify that statement, I only had 500 in damage to my vehicle because of the impact coming from the rear and the spare on my jeep saving it from thousands of dollars in repair and probably saved me from being hurt even worse than I was. My wife got hit at less than 10mph and the damages were 2600. So although the amount of damage can persuade a jury to offer bigger judgments, so can explaining my situation and why I dont have a lot of dmanage bur the car behind me was totalled. If I am able to speak freely at the settlement conference I certainly will. I want them to know we are well aware of the bad faith and we will fight as long as it takes. But they could also wait until the day before trial to settle right?

    • fl_litig8r says:

      They can try to settle at any time. On my biggest case, offers were going back and forth up until the verdict, after which the defendant really wished it had settled. As far as the defense lawyer’s obligation to the insured with respect to the bad faith issue, basically he just needs to tell him of the potential and advise that he may want to obtain separate counsel for that issue.

      • grant says:

        I just learned that due to information learned at my deposition they want to push our trial date out. Most the information they are saying they were just made aware of my lawyer had but never shared. Im so pissed right now it makes me sick. Why would my attorney not share information that he should with the defense? He is giving them ammo to fight the bad faith case. Can I get him for malpractice if this turns out bad for me?

        • fl_litig8r says:

          A lot of this depends on exactly what information was not shared. Normally, civil lawyers don’t offer the other side information that wasn’t requested, aside from plaintiffs providing information sufficient to support a settlement demand. It seems odd that the information wouldn’t have come out earlier as part of your interrogatory answers, if it relates to your medical treatment.

          As to whether this helps the insurer in a bad faith case, that depends on whether the information your lawyer did provide was adequate to show that your case was worth clearly more than policy limits at the time the settlement demand was made. If the information he provided showed that your case was worth more than policy limits, but just not the full extent of how much more than policy limits, that shouldn’t negatively affect the bad faith case. As long as the insurer should have paid policy limits based on the information provided, you can still make a full recovery for all your damages, including ones not disclosed. So, in a case with $10,000.00 policy limits, where the plaintiff provides information to the insurer to show that the case is clearly worth at least $20,000.00 and the defendant doesn’t pay policy limits, the plaintiff can recover the full value of its lawsuit, even if it is $2,000,000.00, in a bad faith case. The question is whether the insurer should have tendered its policy limits to protect its insured from an excess judgment. The amount of the excess recoverable in a bad faith case isn’t capped by how much in excess of policy limits the case appeared to be worth at the time the settlement offer wasn’t accepted by the insurer.

          So, before you start talking malpractice, you need to know if the defendant was provided enough info when the policy limits were demanded to reasonable inform it that an excess judgment was likely. Your lawyer may not have ruined the bad faith case at all.

          Even if your lawyer did withhold way too much information, such that it was not clear that the case should have deserved a policy limits offer, you’d still have a rough time proving malpractice. In this scenario, you’d have to show that the defendant still wouldn’t have tendered its limits if it had all the necessary information to show that it should have tendered them. This would basically require the insurer testifying that it would have committed bad faith if it had been given the opportunity to do so — lots of luck getting that admission.

          So, if the insurer says it would have paid policy limits if it had all the information, and it is willing to pay policy limits now, you wouldn’t be able to prove that your lawyer’s failure to provide all the information harmed your case. Either way, you’d get policy limits. Before you say “but the insurer wouldn’t have settled!”, you’d never be able to prove that if the insurer says otherwise.

          So, you either (1) still have your full bad faith case now, based on the information your lawyer did disclose, in which case your lawyer didn’t commit malpractice, or (2) you’d have to prove that the insurer would have committed bad faith if your lawyer had provided all the information — most likely with the insurer claiming that it would have paid. Either way, I don’t think you have a malpractice case.

          • grant says:

            As I stated before the one thing that remained constant was my neck injury which would have warranted policy limits and by them not paying did leave their insured open for an excess judgment. My lawyer is just talking like he is on their side and it pisses me off.

  36. grant says:

    He also said if I really feal as if he is letting the Defense run this case then maybe we should re visit our relationship. That right there tells me his heart is just not in it….Why would he walk away from a case that could bring in such a high reward. I had PIP coverage from a prior accident. For the longest time my PIP carrier state farm wouldnt pay for surgery. Finally they did March 2012. Of course the 2nd accident happened Aug 2011. I never mentioned the accident to my PIP carrier and they never asked. They had full access to my records from a signed release and my surgeon mentioned the 2nd accident when it was submitted for payment. State farm agreed they missed that. So he is trying to say the defense will say im deceitful and lied. Thats not true. For starters statefarm had from sept 2010 to pay for my treatment and did not. Then after therapy and feeling better I decided maybe surgery isnt necessary I got involved in the 2nd accident which of course re aggrevated everything along with injur my neck. So I started pushing statefarm again and it still took them 7 months to pay for my care. What was I supposed to do not get better? Tell the air force sorry Im not going to have surgery to fix my jacked up back. Or better yet let all the bills roll in and go broke, lose my secret security clearance and my position within the colorado air national guard. Had my PIP carrier fixed my back like they were supposd to then maybe I would have been healed at the time of the second accident and this wouldnt be an issue

    • fl_litig8r says:

      If you want to keep this lawyer, I think you’re going to have to be a little more diplomatic. Telling him that he’s letting the defense run the case is pretty insulting (even if that’s how you feel, find a better way to say it). A lawyer will drop even a valuable case if he finds the client insulting or rude.

      As far as the issue with the prior accident, he raises legitimate concerns about how a jury might perceive the situation. The more you have to explain something away, even if your explanation is legitimate, the greater the likelihood that one or two jurors won’t believe it. Don’t fall so in love with your argument that you lose sight of the fact that others (like jurors) may see it differently. A good part of your lawyer’s job is pointing out things that can go wrong in your case. Sometimes this seems likes he’s taking the defense’s side, but he’s really just covering himself in case things go south. If he didn’t warn you and led you to believe that nothing could go wrong, you’d go ballistic if something did go wrong.

      Unless he tells you that he won’t take your case to trial, assume that he still believes in your case — and take his warnings as just bracing you for a possible bad outcome.

      • grant says:

        I agree with you. I apologized to him and told him I understand where he is coming from. The defense is going to argue I wasnt candid with statefarm by telling them about the 2nd accident. My point is statefarm was presented with paying for my surgery numerous times prior to my accident. I finally gave up and through therapy was able to return to full duty. Then the Aug 2nd accident happened and the at faults insurance company declined to pay for anything. Now it was to my understanding that state farm was to pay for anything related to my low back, Therefore they were only paying for what they should have paid for a year prior. Of course the 2nd accident made surgery necessary and my only option was to have statefarm pay or risk losing my mlitary career because I wasnt doing anything to improve my condition. Now my lawyer is telling me we need to give the defense an offer which I thought happens at the settlement conference on the 28th. I know he said the jury may be less sympathetic and to an ordinary civilian that may be true. I think the jury will still be sympathetic because I am military and I was only doing what I thought was necessary to save me air force career. I couldnt just let bills pile up and then be in trouble with my credit which would cause me to lose my security clearance.

  37. grant says:

    So my lawyer emailed me and said he needs to shoot the defense a number to settle and he had one in mind. I spoke to him and he thinks 300-350k range. Myself since there are 3 scenarios with my lost wages ranging from 344k-1.4m and medical expenses over 200k thought that is way too low. Remember how I mentioned he has known the defense attorney several years? What if he is trying to help him out and keep him out of hot water by getting me to settle low? Another thing is the issue of why I had my PIP carrier pay for my surgery. Why can they bring my insurance into the trial but we cant mention the fact that her insurance denied paying any medical bills at all. That helps me explain why I submitted it to my PIP carrier. It doesnt seem fair at all. All I did was do the only thing I could do in order to not get discharged. They are making a stink over the VA as well when all I did was get an exam to see if I was eligible. Even though I have solid reasons he still talks as if he is taking the defense’s side. I cant get a jury to be sympathetic if I never get a chance to explain and have them see me and hear my testimony. He also told me the defense hinted they were going to offer more than limits but not much more. Which confuses me because why would he suggest 300-350k if they arent going to offer much more than the original 25k? Also if I settle doesnt the insured still have the right to sue for bad faith? Based on them putting her in this situation

    I forgot to mention I came back with I know the range value of my case and what the jury may award. Based on that I am willing to settle for no less than 500k my neck surgery and treatment/time off work paid for as well as attorney fees. I told him since I am light duty for the rest of my life I have to think about my future. A check in solely in my name for 500k is my offer.

    • fl_litig8r says:

      Any lawyer who’s been practicing for a number of years is going to get to know defense attorneys, especially the ones that handle the cases for the big auto insurers. You’re wrong to speculate that your lawyer is trying to help the defense attorney out, even if they’re good friends. First, he doesn’t need helping out. He didn’t make the insurer commit bad faith, and he won’t be punished if the insurer gets smacked at trial. He didn’t commit malpractice, so his money isn’t on the line. Second, I’ve been friendly with many defense attorneys, some of which I’ve known for over a decade, and I’ve only seen it have a positive effect on how the litigation was conducted — better communication and less game playing. Lawyers can easily like opposing counsel and still want to kick his ass, like NFL players on opposing teams who are friends off the field.

      You know why your PIP issue is relevant and the defendant’s insurance status is not. Your issue goes to which accident caused the injury — if you yourself claimed to an insurer that your treatment was related to the first accident in order to obtain coverage, that could be an admission. The fact that the defendant has insurance, or that the insurer refused to pay, is irrelevant to any issue the jury will decide (fault, causation and damages). I know how that relates to your reason for submitting your treatment to the PIP from the first accident, but frankly, it’s not really an excuse. You know you shouldn’t have done it — just accept that and recognize that it may bite you on this case.

      There’s no harm in submitting an offer before the settlement conference. That just means that the defendant will have the ball in its court to make the next offer at the conference. You would have gone first at the conference, anyway.

      If the insurer isn’t willing to go much above the policy limits, then I agree that it makes no difference whether you offer $350,000.00 or $500,000.00, so you may as well go with the higher number. As for the check being made solely in your name, I would expect your lawyer’s name to be on it as well. Either way, it’s going to have to go through his trust account.

  38. grant says:

    Well I informed my attorney in the beginning of this case that I had PIP coverage and he never advised against it. I mentioned it because I wanted to know if I was going to lose it now that the second accident happened.

  39. grant says:

    Is it ok if I was to send a letter to my mediator?

    • fl_litig8r says:

      I wouldn’t do it without letting your lawyer see it first. It could be a good idea if you want to let him know how important your military career is and why you value your case as you do.

  40. grant says:

    I sent this to m attorney
    I was thinking about my case and the involvement with state farm. I had state farm pay for my disc replacement surgery which were still present at the time of the accident. We can argue that the Aug 2 accident we are after recovery for aggravation of pre-existing lumbar degenerative disc disease. Therefore Statefarm was correctly billed for everything. Leaving us free to argue the aggravation and exacerbation of the lumbar degenerative disc disease. This is most likely the case since I still have lingering pain after the back surgery. Which is caused likely by degenerative disc disease. If proven true then the my settlement offer would change considerably based on cases I have found. I just remembered I have degenerative disc disease when I was reading over a case. I never even thought about it. With me reaching MMI and my injuries causing permanent impairment and affecting my potential earning income. My medical bills are still quite high even without what Statefarm has paid for. I would say over 100,00. This is for the defense to think about in hopes they offer closer to what I deserve for everything I have gone through and will go through in the future. We brought economist in for a good reason and thats for the jury and the defense to see what I am losing as a result of this accident. I strongly believe with everything we have Dr. Pettine testimony and findings, Mr. Opps report, Medical bills in excess of $100,000, permanent impairment, cervical disc herniation with recommended surgery, and aggrevation of pre existing condition Degenerative Disc Disease we may get a much larger judgment. Its a risk but with everything I am going to lose anyway its a risk im willing to take. So if you have made the offer to the defense and they dont accept then we will wait until the settlement conference and present this along with a new offer and one the mediator may suggest to them they take. Please when you have time email me back and let me know what you think.

  41. grant says:

    My wife has her deposition today. I guess my lawyer told her she is pretty much being forced to by the state and they are trying to dig up dirt on me by using her. I thought there were laws that protecting what can and cant be used or asked when married. You mentioned on your site that my lawyer should only send medical records that are necessary to my case. So why did my lawyer have me sign a full release? The are hung up on my 6 month addication to pain medication which I quit almost a year prior to the accident. How does that have any bearing? Also I dont understand why is the fact I used steroids 3 years ago relevant? I didnt lie about any of it I told the truth. I quit roids and never touched them since. My addiction I went to my wife and told her I wanted off pain medication. I did rehab on my own and not once since relapsed. None of this changes the fact that I was injured

    • fl_litig8r says:

      The spousal privilege laws have two aspects: spousal immunity and protection on confidential marital communications. Immunity, which can be used to keep a spouse from testifying at all, only applies in criminal cases (I’m not aware of any states that extend this privilege to civil cases). The protection for confidential marital communications applies to both criminal and civil cases. So, while a spouse in a civil case can’t avoid testifying entirely, he or she can refuse to answer questions about private (no other people present) communications with a spouse.

      State laws will vary on how this is applied — does it apply only to spoken communications (more common) or observations as well — and to whom the privilege belongs (the witness-spouse, the party-spouse or both).

      Spousal privilege isn’t really asserted very often in personal injury suits for three reasons: (1) the spouse usually has a consortium claim which could be dismissed if he or she refuses to answer questions, (2) the spouse will often want to testify on behalf of the injured party, and refusal to answer questions could result in an order limiting or practically eliminating the spouse’s testimony and (3) unlike in criminal cases, a civil jury can draw a negative inference from a witness’ assertion of a privilege (even the 5th Amendment).

      I’m assuming that your wife is not bringing a consortium claim if your lawyer says that he doesn’t represent her (if she is bringing one, then she should have signed the fee contract and should be a client). Even if she isn’t a client, your lawyer can still raise objections at the deposition, as he can with any other witness.

      With respect to medical records, don’t confuse my advice regarding things to be sent in a pre-suit demand with what the defense is entitled to see once the lawsuit is filed. Pre-suit, I don’t give out releases (some lawyers do) because I want to control the flow of information — I don’t want the insurer getting records I don’t have. After suit is filed, a defendant can subpoena medical records, but it still has to provide prior notice to me of what records it is requesting — so I can get them as well.

      As to what medical records are relevant, once suit is filed this largely becomes irrelevant, as discovery will allow the defendant to get all of your medical records, anyway. While you can kind of play gatekeeper with irrelevant records prior to suit being filed (though this could hurt your settlement chances), you can’t once litigation starts. So, ultimately, providing the defense with a medical release really comes down to each lawyer’s personal strategy — I’m more of a control freak.

      Your prior steroid use may not be admissible, depending on whether the argument can be made that it had long-term negative effects on your health. I’ve seen defendants try to introduce other things, such as prior marijuana use, under a similar theory. Obviously, the real reason to try to get such information before a jury is just to smear the plaintiff. However, if the defense can find a doctor who can pass the “laugh test” with an argument about how this affects your current health, a judge may allow it in.

  42. grant says:

    And why is my lawyer telling my wife he is not her attorney? He is representing me and this case which means he should be objecting if there is a question that is out of line. Him telling her if he has to get up and go to the restroom he can because he isnt being held there. Basically like feeding her to the wolves. is this right what he is doing?

    • fl_litig8r says:

      As I said in my last comment, he can still raise most objections even though he doesn’t represent her. The good news is that almost all objections which can be raised in a deposition (except as to privilege and “form of the question”) can be raised after the fact, and don’t need to be contemporaneous. Unlike at trial, most objections not made in a deposition are not waived.

  43. grant says:

    consortium claim I guess the attorney said makes us look bad. Not sure how that is but its his advice we dont file one. Of course I disagree lol. I know Im the annoying client and thats fine. Maybe if I had confidence in him things would be different. He also told my wife that winesses that show emotion are less believable which I would think the opposite of that

    • fl_litig8r says:

      I will be writing an article about consortium claims shortly, so look for that regarding my opinion on whether they are worth pursuing. As far as witnesses showing emotion, it’s a matter of degree — some people go way over the top, which can hurt credibility. Genuine, natural emotion (no wailing and rending of garments) is to be expected.

  44. grant says:

    Wasnt sure where else to post this and was hoping you could provide insight. My Dr placed my on sertraline(zoloft) it has been know to cause a significant decrease in sperm count and motility. He placed me on this medication late 2010. When we were unsuccessful I finally got tested August 2012 and my sperm count was extremely low with little to no motility. The side effect wasnt on the bottle and my Dr. didnt inform me despite knowing I was trying to have a child. After he went over the results he told me it is highly unlikely I will be able to impregnant my wife. Does this sound like malpractice or product liability? Thank you

    • fl_litig8r says:

      I’m not sure that it’s either. From what I’ve read about SSRIs’ possible reduction of sperm count and motility, it goes back up if you stop taking the medication (it appears that it may take a few months). If that’s the case, I doubt you have a claim (or a financially viable claim, anyway). You would also need to demonstrate prior fertility to prove causation.

      If the possible negative side effects on sperm count were not listed on Zoloft’s product information, it is highly unlikely that your doctor would be found to have committed malpractice. The maker of the drug could possibly be liable for failure to warn of the side effect in a product liability case, but again, whether such a case would be worth bringing likely depends on whether these effects are permanent.

      Because of the cost involved in bringing a product liability claim against a drug manufacturer is so high, and the causes for infertility so diverse, I would be surprised if any lawyer would be willing to take a case like this on a “one off” basis. Unless there’s some firm gathering lots of clients for this type of claim, you’ll probably be hard pressed to find a lawyer to mount this claim.

      The good news is that if you are taking Zoloft due to the accident for which you are now suing, and you can prove that it caused the infertility (which won’t be as easy as it sounds, and may not be financially worthwhile to attempt), you should be able to recover whatever damages are reasonable for such an injury regardless of whether the doctor or drug manufacturer were negligent. Basically, if the accident caused the depression which caused you to take the Zoloft which caused the infertility, the infertility is an injury which naturally stems from the initial accident — and is compensable in the original accident case.

  45. grant says:

    So I had the settlement conference and the Judge was kind of a dick. They didnt budge from 25k limits. I told the judge thats fine I will go to trial. His response was “well than you could get nothing and end up owing all these fees”. I know nothing is a for sure thing but I just dont see that happening. He asked my attorney about requested records by the defense and if he had provided them, my attorney kept saying no he didnt provide records. How am I supposed to win a third party bad faith if he didnt give them the requested records in order to make a decision? He also told me that if it goes into a bad faith case he will have to refer me to someone else. Im not sure what that means for me because I am not paying 2 seperate lawyers for the same case. Would they split the contigency money? Also the insurance company did not provide a comfort letter to their insured. Does that mean if there is an excess judgment the court can leave the defendent out of it and just make the insurance company pay? I also asked about just taking the lower back issue out of the claim. There is a lot of confusion surrounding it and even though I know the truth about it, it could confuse a jury and I dont want that. Even though it did make my back worse. I asked if we just went after my neck injury since there is no prior history anywhere of me ever complaining of neck pain. I still havent heard back from my attorney regarding the issue. I know it may lower the settlement amount but it could help as well. The mediator asked why havent I had my neck surgery and I told him I want disc replacement and that has to come out of my pocket and I dont have the money. I said I can get the fusion and be out of work un paid for 3 months or wait and see how this plays out and get the disc replacement and only miss 2 weeks of work. I also thought of getting my surgery done just before the trial so they could see me in real bad shape. But I dont want them to think I am playing them either. Also the defense said they will not put the defendent on the stand because they know whe is not a good witness. Does that mean my lawyer cant call her to the stand?

    • fl_litig8r says:

      With respect to the records, whether that affects the bad faith claim at all obviously depends on the importance of those records to showing that your case was worth more than policy limits. If the insurer had sufficient records to make this determination, your lawyer’s failure to provide additional records shouldn’t matter in the long run.

      If you have to hire another lawyer to do the bad faith case, you won’t wind up paying any more in fees than if your current lawyer handled it. In that scenario, your lawyer’s fee percentage would be based on the amount he recovered for you up to the policy limits, and the next lawyer’s fee percentage would be based on the amount of the excess he recovered. If your lawyer kept the case, his fee would be based on both.

      The insurer not notifying its insured about the possibility of a bad faith case could give the insured an additional claim and may help a little in your bad faith case, but it doesn’t mean you can forgo the bad faith lawsuit entirely.

      Your lawyer should still be able to call the defendant as a witness at trial. The only thing which would stop this would be if the defense stipulated to everything the defendant’s testimony would be related to (e.g., it was her fault) and your lawyer doesn’t come up with another reason why his testimony would be relevant. I would think that if he argues that the defendant’s account of how the accident occurred is relevant to the severity of the impact (which goes to causation), he should have no problem calling her — it would be pretty tough for the defendant to make a stipulation which would eliminate the need for such testimony unless it also conceded causation.

  46. grant says:

    I am thinking about going after state farm, the insurance company I submitted the claim to for my back surgery. The entire case is confusing but as I said after the 2nd accident I was left in more pain than before. State Farm was my PIP coverage awarded from the first accident. They denied paying for surgery 3 times when it was reasonable and considered necessary by my Doctor. We requested the surgery right after the coverage was awarded. Them not approving to pay caused me more pain and suffering and then when I was able to get released to full duty I was involved in the second accident and the injuries became worse as a result from them not acting in good faith and paying for my surgery to correct my back issue. Now they are holding back over 5,000 dollars in lost wages and replacement services even though they admitted they were told about the second accident but it was an oversight on their part. They failed me as the insured and I believe I have a strong case against them for acting in bad faith by not approving my surgery. They became my PIP carrier Dec 2010 and did not pay for surgery until March 2012 after the second accident made my condition worse. Do you think I have a case against them? Or should I wait and see if they try and recoup the money from the surgery and then countersue?

    • fl_litig8r says:

      I can’t believe it, but after skimming your prior posts, I can’t find any mention of what state you’re in. First party bad faith claims, such as the one you propose against State Farm as your PIP carrier, are highly dependent on state law, and the difficulty in bringing such a claim, along with the types of damages recoverable, vary widely from state to state. I did find a very nice article discussing all 50 states’ laws regarding first party bad faith, so I’ll direct you here (pdf warning) to look up your own state’s laws to see whether such a claim is worthwhile.

      If such a case is viable (and assuming your lawyer or another lawyer will bring it) I wouldn’t see an advantage to waiting to bring it as a counterclaim, other than a fear that suing them might provoke them to sue you for fraud (which is a valid concern). Just be aware that waiting too long to bring this claim could exceed your statute of limitations.

      • grant says:

        I have racked my brain about the fraud issue and I guess it would all depend on how a judge or jury sees it. If they look at it and say Mr. Chandler had this back problem prior to his second accident and as his provider you failed to address his condition even when told it was reasonable and necessary by his Doctor. Therefore you did act in bad faith and Mr Chandler had every right in submitting a claim for his surgery through his PIP coverage. Or they could go in the opposite direction. If they believe my explanation that I still felt my PiP carrier at the very least was 50% responsible for caring for my medical after the second accident. They could then tell my PIP carrier they have no claim against me and they should pursue reimbursement through the auto insurance company. Again they could go totally against me as well so its a risk. My lawyer suggests waiting to see what the carrier does first. If they come after me for the amount then I could counter sue. I do believe I have a case but I also think its a very risky one.

  47. waynenpain says:

    When its close to going to trial when is the best time to negotiating the medical bills and loans if you borrowed money from a what I call loan sharks. is that done before the case is settled or after? and if you borrowed money on your case is there a law regulating how much they can charge you in interest and how can you fight the outrageous interest they charge. I borrowed 6k and they are charging almost 24k. There should be a law against taking advantage of people in financial distress. Is there?

    • fl_litig8r says:

      Typically, medical bills are negotiated after settlement. If the amount of the bills make a difference in whether a settlement can be accepted at all, you can attempt to negotiate them after you’ve received what you believe to be the defendant’s final offer, but before you’ve accepted or declined it.

      Whether lawsuit loans are subject to state usury laws is a gray area that is still being debated. Don’t expect your personal injury lawyer to fight this battle for you. This isn’t his area of expertise, and you knew the interest rates charged when you signed up for the funding. Generally, the argument that lawsuit lending companies make is that their products are more “investments” than “loans”, and due to the fact that they are assuming the risk of not being paid if the lawsuit does not have a favorable outcome, they should not be subject to usury laws. You can read more about this here. Ironically, it is insurance companies arguing for tougher regulation of lawsuit lending companies — mainly because they know that if these loans are less available, people may not be able to pursue their cases as long (or at all).

      While I never recommend that clients get lawsuit loans, I do realize that some people absolutely need them to survive while their cases are pending. I just make sure that they know what they’re getting into when they sign up for one. The forms I’ve seen from companies such as Peachtree and Oasis make it very clear how much they are charging on their applications. Unless the loan is taken out close to settlement, you can easily pay back twice as much (or more, as in your case) than you borrowed. They should be treated as a last resort when you can’t get money from any other source.

      • waynenpain says:

        Well my attorney recommended this guy for the loan, he said I know a good ole boy in california and said he will treat you right. then after a couple of years went by he called him a loan shark. If I had only known they were not regulated by law I would not have got the loan and if I had known my law suit was going to drag out this long. Since the insurance company kept canceling my trials they should be responsible for some of the interest and the judge that kept giving them continuences.

        • fl_litig8r says:

          You learned a hard lesson. Read loan documents carefully before you sign them. At least note the interest rate. The defendant won’t be liable for your interest, just as it wouldn’t be liable for the interest of plaintiffs who run up their credit cards or take out home loans to stay afloat while their lawsuits are pending.

  48. grant says:

    My attorney informed me the Defense has filed for a continuance as well as placing a 5,000 bond on me because I am currently contracting in Bahrain. I did not change residency and maintain the same home of record. Also I pay Colorado state taxes. So should they be able to get a bond put on me? If they can do it can my attorney? He said if the trial ends in the defense favor is why they were doing the bond. So I should be able to since if it ends in my favor she could flee back to Mexico right?

    • fl_litig8r says:

      In Colorado, nonresidents who file suit, or residents who file suit and thereafter become nonresidents, must file a bond to secure the defendant’s costs up to $5,000.00 (Colorado Revised Statutes 13-16-101 through 13-16-103). This can be excused if the nonresident can show indigency.

      Unfortunately, the statutes do not define what a “nonresident” is. From what I’ve seen from a limited internet search of Colorado law, it seems to be based upon your “domicile” — where you reside and intend to remain. It has nothing to do with your citizenship. Whether your current stay in Bahrain makes you a nonresident would be an issue the court would need to decide. While having a house and paying taxes in Colorado certainly work in your favor, they are not necessarily dispositive. If you’ve been in Bahrain for an extended period of time and intend to remain there indefinitely, you still may be considered a nonresident under these bond statutes.

      If you prove residency in Colorado, the court is not mandated to make you file a cost bond. However, it is still permitted to do so under its discretionary authority. The court would consider the defendant’s ability to recover its costs from you (should you lose) in deciding whether to require a bond. So, your assets within the state, and your likelihood of keeping them there through the trial, would play into this determination.

      Were I your lawyer, I would contest the request for a bond based on (1) you not being a “nonresident” and (2) there being no special circumstances which would require the court to exercise its discretion to impose a bond on you as a resident.

      As to imposing a bond on the defendant — the statutes don’t require or allow that. It only applies to plaintiffs — because you chose to file the suit in Colorado. The defendant has no choice in being sued (and presumably you wouldn’t have sued in Colorado if you didn’t think you could recover against the defendant there). Colorado is trying to protect its residents’ ability to collect their costs if they are sued by nonresident plaintiffs.

      Whether the defendant can “flee back to Mexico” makes no difference. She’s a resident of Colorado now (and she would be even if she were a non-citizen of the U.S.). The statute doesn’t speculate as to where people might move. So, even if defendants could be required to post a bond under the statute (which they can’t), it would not be mandatory for her to do so because she is currently a Colorado resident.

      • grant says:

        Well the bond did get denied and the trial looks like it will he post poned due to the defense asking for a continuance. After everything I have been through with my attornet and not trusting him or thinking he has what it takes to sell me case to a jury he finally withdrew from representing me. I have found an attorney that I will speak with today who not only does personal injury but also handles bad faith. After reading about him and the info on his website he sounds like someone I should have went with from day one. Now with the continuance moving the trial date out from December he will have time to review the case. The denfense attorney’s whole case was to attack my character. This with nobody on his side. I however obtained colonels and senior non commisioned officers to speak on my behalf. As well as one of the most respected Dr’s in his field. I dont mind waiting longer knowing I may finally have the right attorney on my case. Now since he withdrew doesnt that mean I would owe him nothing? Or do I still owe for his time?

        • fl_litig8r says:

          If he withdrew because you disagreed on the settlement value of your case, you don’t owe him any fees. My article on firing your lawyer covers the issue of “good cause” for firing, which also applies to withdrawals (disagreeing on settlement value is not “good cause” to withdraw). Whether you owe him his costs may come down to the language of your fee agreement.

  49. Ms. J says:

    Hello,

    I am very happy to have run into this website, I read every single comment posted & it very informative! :)

    About my case,

    I’m a female in my late twenties from NY.
    I had a silp & fall at the surpermarket in 09 due to negligence! It’s a franchise supermarket, the owner owns many of them.
    Water was leaking from the ceiling down to the floor where the tiles are coming up due to the on going situation for so many years before my slip & fall. The manager & other workers have been given so many complaints about that & expired foods for years before my slip & fall & nothing has been done to fix it till this date! I am thankful that after my fall I & my attorney have before & after pictures showing how worse the situation has gotten & tiles even more broken due to the water leaking!
    I hurt myself very badly to the point that I am going to be disable for the rest of my life!” I had surgery on my left knee arthroscopy to fix MCL tear ligaments etc. Also had on my left ankle surgery to have my peroneus brevis tendon repair, when this surgery was done they did a nerve block for 3 times because it wasn’t working & that was so painful every time they put that huge injection in me that gave me so much pain to the pain that I was still at the hospital due to my pain for two day given strong narcotics that ass’s helping & no one understood what was wrong! I couldn’t move my toes and my lower leg was somewhat numb, to the point that now I have a FOOT DROP for life due to the nerve block & the EMG shows they severely damage my left peroneal motor neuropathy! A AFO was made for me and I can’t move my foot at all and from my knee down to my toes is completely numb & I was told about surgeries for it like having a tendon transfer or nerve transfer, but they don’t give me any guaranties. Things has gotten to the point that I’m in a wheelchair because I have a hard time walking! I also have issues with my back and also have lack of the normal curvature on my cervical spine.

    Recently I did fall due to my foot drop & hurt my nose very bad, now I have have a nasal septum deviation & need surgery because its blocking my airflow causing me difficulty breathing!

    I want to know if I could add this injury to my case because it happen due to my foot drop? This is something that wouldnt have never happen f it wasn’t to my silp & fall. I’M disable for life, so hard to be in my shoes, I also see a Psychiatry because I have a very bad depression, anxiety and difficulty sleeping due to the pain, I take narcotics like Vicodin, percocet and dilaudid. & for my depression, anxiety for my sleeping difficulty I take: lorazepam,trazodone, zoloft and abilify as a add on to my depression pills.

    My attorney says I have a strong case and that he is willing to go to trial.
    I also did great on my deposition because I pointed out everything & also the fact that the situation been there for years & they been aware of it & still not fixed! At the end of the deposition the other attorney face got so red and mad, & I also went to their doctors also after the deposition in 2011, what very odd is that after my surgeries was done they still haven’t called me for another deposition or made any offers.

    My case is in the supreme court kings county & all motions are all done, my attorney already did the jury coordinating part 1 and we just now waiting for a trail date, but I have a letter that saysthee goal is to have it completed by December of this year.
    Before I forget, I was also approved for disablity from social security & also for VNSNY choice for life from the state.

    I wish in trail both the insurance & owner get hit where it hurts!

    I would like to your opinion & what’s the value you see in my case and about if I can add my recent injury to my nose due to my foot drop?

    Sorry, I did type all this from my cell & know I could have put things in a better order, but hope you get the picture..

    Thank you for taking the time to my comment, God bless you!

    • fl_litig8r says:

      Aside from the general advice about determining the value of your case given in this article, you have many issues which could affect your case’s value. Your receipt of Social Security Disability benefits is one of those issues — generally, the defendant is entitled to a set-off (reduction in the amount awarded) for the amounts you received from Social Security disability against any wage loss claim you make (see NY CPLR §4545(a)). This gets complicated because entitlement to benefits in the future is not guaranteed, as the SSA periodically reviews claims for continuing eligibility. So, the amount of the set-off the defendant would receive depends on the evidence presented about the likelihood of your benefits continuing. Also, you may be able to reduce the set-off based on the amount of taxes you recently (past 2 years) paid that went towards Social Security. If you are receiving SSI benefits in addition to SSDI, any significant award from your lawsuit will put you over the income threshold and likely cause your SSI benefits to be discontinued. So, your wage loss claim will be affected significantly by how the court ultimately rules on the Social Security set-off issue, which I can’t predict.

      Assuming there are no pre-existing injuries, you should have no problem recovering for all of the medical treatment you’ve received as a result of the fall, including the mental health care. The amount of this past treatment, coupled with your anticipated future medical needs, plays a large part in determining the overall value of your case.

      As far as the damages to your nose from the subsequent fall, this is a sticky issue. While technically you should be able to recover all damages which naturally stem from the defendant’s negligence, you can’t hold the defendant liable for every fall you ever suffer in the future due to your leg injury. If this injury occurred at a time when you were initially recovering from treatment, such that you didn’t know your limitations, you would have a better chance of recovering for this injury. If it happened after you knew or should have known that your leg was unstable, the jury may not hold the defendant liable, or at least assign you a good percentage of the fault.

      One other consideration is the nature of the treatment you are receiving for your nose. These days, when most people hear that someone is getting treatment for a “deviated septum”, they automatically think “nose job.” You don’t want the jury to think that you are just trying to get the defendant to pay for a nose job, as it will hurt your credibility as to the rest of your claims. So, if you are planning on having some cosmetic improvement during this surgery, you may not want to bring this claim from a strictly strategic point of view. If there is no cosmetic reason for having this procedure (or if you’re just trying to have your nose put back into its pre-fall condition), then maybe this isn’t as much of a concern.

      In short, I’d only try to bring the nose claim if you’re sure that the fall happened at a time when the jury would not expect you to know that your injury made you prone to falls, and only if you’re not bootstrapping a nose job onto the deviated septum surgery. Otherwise, I don’t think it’s worth the risk of bringing, due to its potential to damage your credibility as to the rest of your claim.

      Without knowing your past and future medical costs, along with your wage and medical history (which I am not asking for), I can’t begin to estimate the value of your case. As I said above, your Social Security benefits will also play an unpredictable role in your future wage loss claim. I’m going to have to defer to your own lawyer, who’s in a much better position to tell you what your case may be worth. It sounds like he’s doing a good job pursuing your claim (I mean, he is willing to take it to trial, which is saying a lot), so why not just trust his opinion?

  50. Ms. J says:

    Hello,

    Thank you very much for the reply & your time

    I was Recently approved for SSI disability on this month & the payments starts in November.

    I was not working the year I had my accident in 09 because I was a student in college.
    The year before that I was working but was layoff and didn’t report a lot of income.

    Sad thing with my lawyer is that I never get to talk with him because he is always busy with trials and going to court and have lots clients. The person I talk with is the paralegal, & before I applied for SSI, I told them & the paralegal said it will do good for my case because now social sucurity also is claiming I’m disable. He also told me that I can’t be no longer on SSI after I win at trial.
    As for my nose I need the surgery because I can’t breath well. I love my nose & wouldn’t want any cosmetic work done, it’s a medical reason.

    After reading your reply, it showed me that I must talk with my lawyer & not the paralegal, & put the cards on the table because I only have one case& he has many, so I can’t risk it because my future is on the line & I’m not to be able to work for the rest of my life & I’m so young!

    I also thought the jury could award you whatever they want, is that true? How does that work?

    Thank you!

    • fl_litig8r says:

      The jury can’t really just award “whatever it wants”. When it comes to economic damages, such as medical expenses and wage loss, it can only award the maximum amount supported by the evidence. So, if you put on evidence that your past medical bills were $85,760.24 and that you made $40,000.00 per year, a jury couldn’t award you $100,000.00 in past medicals and a lost wages that amounted to $100,000.00 per year. If it did, the judge could reduce the award down to the maximum amount supported by the evidence through a procedure called “remittitur,” or even order a new trial (perhaps on damages alone, if liability had been at issue as well). So, while you wouldn’t need to relitigate whether the defendant was negligent, you would need to have a new trial on the amount of your damages.

      When it comes to non-economic damages, such as pain and suffering and emotional distress, the jury has significantly more leeway to award what it wants — however, even this has its limits. While multi-million dollar pain and suffering awards are not uncommon in personal injury cases with severe injuries, if the pain and suffering is more than 5 times the award of economic damages (generally speaking), you can expect the court to scrutinize it closely. It is much more difficult for the court to reduce a non-economic damage award than an economic damage award, due to the fact that non-economic damages are inherently subjective, but if the jury screws up and awards you too much in economic damages, the court may scrap the entire damages verdict and require a new trial on damages.

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