How Much is My Lawsuit Worth?

This is by far the most common question plaintiffs have, and also one of the most difficult to answer. There is no formula one can use, but there are several factors your attorney will consider in arriving at a fair value for either settlement or trial.

Liability

The first factor, liability, is fairly simple to understand. Did the defendant, through action (or sometimes inaction) that was either negligent or intentional cause you harm? An easy example of negligent conduct would be a driver running a red light and hitting your car. Intentional conduct would include things like battery — some drunk jerk punches you in the face.

Many times, the liability of the defendant will not be clear-cut. If you are involved in a car accident and the result is a swearing match between you and the other driver as to what happened, there is always the chance that the jury will believe the other driver. In slip and fall accidents, often there will be an issue as to whether the danger was “open and obvious” or whether the dangerous condition existed for an ample amount of time for the property owner to notice it. A prime example of the latter is a slip in a grocery store on a wet substance on the floor. If a customer spilled something seconds before you fell, you will likely lose. A common saying in the legal profession is that a property owner is not automatically the insurer of his guests, meaning that you don’t have a lawsuit just because you got hurt on someone else’s property. Taking the grocery store example again, if the substance on the floor can be proven to have been there for a long period of time, or if it was spilled by an employee, you have a much better case.

The ultimate question on liability is “What are the odds I can prove that the other person is at fault?”

Comparative Fault

However, the question of liability doesn’t end once you’ve established that the defendant caused you harm through actionable conduct. There is also the question of comparative or contributory negligence — did your actions contribute to your injuries? For example, maybe you failed to wear your seat belt or you were speeding at the time of the accident.

In some states, you cannot recover anything if you were even 1% at fault. In others, your damages will be reduced by your percentage of negligence, so that if you suffered $100,000.00 in damages, but were 25% at fault, you would only be awarded $75,000.00.

This factor considers the odds that the defendant will be able to prove that you are at least partially at fault.

Your Lawsuit-Related Medical Expenses

One of the only ways to objectively measure how badly you are hurt is to calculate your past and expected future medical expenses. Generally speaking, the greater these expenses, the more your case is worth. Be warned, however, that if you run up unnecessary medical bills you will not increase the value of your case. Also, the nature of the treatment will affect the value. Chiropractic or pain management treatment alone will not increase the value of the case as much as one significant surgery.

Settlement tip

Wage Loss

This type of damages is fairly self-explanatory, but not nearly as simple to calculate as you might think. Basically, you are entitled to recover lost earnings for the time you missed from work in the past and time you will miss from work in the future. If your injuries make you no longer capable of performing your job, you are entitled to the difference between what you would have made in your current job and what you can now make in a job for which you are capable.

This gets complicated because the parties invariably disagree as to whether you are no longer capable of performing your job, and the types of jobs for which you may now be suitable. Does your low back injury prevent you from performing your desk job because it is painful for you to sit? You can be sure that experts will disagree on this subject. Do not take it as a given that you will be found fully disabled. There will be plenty of negotiating room as to a fair amount for your lost wages.

Settlement tip

Self-employment is the most frustrating factor which comes into play in determining lost wages (on a side note, I was astounded at the large percentage of my clients who were self-employed). Because self-employed people don’t have a weekly paycheck to reference, an in-depth review of your business is required to determine lost profits (note I said profits, not revenue). The effect on the business going forward is even more difficult to predict — can you hire someone to replace you and still be profitable? Finally, the self-employed also have a habit of reporting as little income as possible to the IRS (yes, you will have to produce your tax records). While maximizing your deductions to pay as little tax as possible may be good business, it makes for lousy wage loss damages in a lawsuit. Your tax returns will be the primary records by which the jury will determine how much money your business made.

Wage loss is simply the difference between how much you would have made were you not injured and how much you can make now. Figuring that out requires an honest evaluation of your current capabilities and how long your injuries will impair you.

Pain and Suffering and Emotional Distress

Pain and suffering and emotional distress damages are commonly referred to as “non-economic” damages, because unlike “economic” damages like medical bills and lost wages, you can’t produce documentation to prove their value. These types of damages are left to the mercy of the jury to decide. Often, the jury will use some multiple of your economic damages to come up with your non-economic damages. This could be 1x, 1.5x or 2x (or 0x or 20x) your economic damages. It is really impossible to say without knowing the specific nature of your injuries.

An injury that is especially traumatic may justify ignoring the economic damages entirely when determining the non-economics. For example, a young girl who is bitten on the leg by the neighbor’s dog may only have $2,000.00 in medical bills (I have seen this personally), but if she has scarring on her leg which will make her ashamed of wearing clothes that would reveal the scars for years, her non-economic damages would be worth a lot more than $2,000.00-4,000.00. The same is true if she is now terrified every time she gets near a dog. On the other hand, a person can have an injury that costs a great deal to repair, but leaves no residual pain or disability.

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Bottom line: non-economic damages are the most fertile ground for disagreement between the parties, and provide the most risk for both sides should they decide to submit the matter to a jury. While attorneys have jury verdict reporters available to them which summarize a sampling of recent verdicts in their state, no two juries will award the same amount of non-economic damages. Do not get overconfident if a case similar to yours recovered a large verdict. You will have a different jury which could reasonably come up with a much lower amount for your case.

Insurance Coverage

It may be surprising to some, but often times the amount of money you can recover will be limited by the amount of insurance the defendant has. For example, if you are involved in an automobile accident and suffer major injuries, but the defendant only has $10,000.00 in bodily injury insurance, you may be stuck recovering just $10,000.00 (less than that — maybe zero — once you take out medical bills). Sure, you may think that you can get the rest directly from the defendant, but do you really think that a person with only $10,000.00 in insurance coverage has any real cash or assets from which you can satisfy a judgment?

In the case of car insurance, you can protect yourself by purchasing uninsured/underinsured (UM) coverage, but for most other types of accidents there is no insurance you can buy that will pay for someone else causing you injury. The amount of the defendant’s insurance is a major factor to consider when determining how much your lawsuit is worth.

If you are unlucky enough to be the victim of an intentional act, such as a battery, there is a good chance that the defendant will not have any insurance to cover your injuries. Most liability insurance policies have exclusions for criminal acts and acts which are expected or intended to cause harm. In these cases, you can recover only from the defendant personally, and most defendants just don’t have the net worth to justify the cost of a lawsuit.

Conclusion

So how much money is your lawsuit worth? Usually this comes down not to an exact number, but a broad range. The factors above (in addition to his or her experience with local juries and how generous they are) will be what your lawyer considers when evaluating your case. You can use the same factors to judge for yourself. If your attorney tells you that your case is worth less than you thought, it may give you some peace of mind to discuss with him which part (or parts) of your claim are problematic. The vast majority of attorneys don’t just pull numbers out of a hat when evaluating your claim. He should be able to justify his numbers based on the factors in this article.

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237 Responses to How Much is My Lawsuit Worth?

  1. sarah says:

    I am approaching mediation for a personal injury case and know that the defendant’s insurance does not cover my wage loss, let alone the addition of pain and suffering. Why would my attorney take us to mediation? If the defendant’s insurance does not have enough money, doesn’t that automatically mean that we should go to court? There is no chance I would loose in a juried trial due to the type of injuries I sustained. I am confused about mediation because even if we ask for the top amount defendant is insured by, it is not enough. Why would we then be negotiating at mediation? Can you negotiate for more than what the defendant has in insurance? Thank you.

    • fl_litig8r says:

      There could be several reasons you are going to mediation. First, it may have been ordered by the court (many judges will not set a trial date if the case has not been mediated). Second, the insurer may be willing to offer more than policy limits if they have potential exposure for a “bad faith” claim. If they were offered the chance to settle the case within policy limits and either rejected it or let the offer expire (after a reasonable acceptance period, like 30 days), this may be the case. Did they ever offer their policy limits? You may want to read my comments to Grant after the article here from Oct 3d and later, where we discuss bad faith issues. Looks like I’m going to have to write a “third party bad faith” article, as it seems to be coming up a lot lately. The third scenario where mediation may help is if the defendant can add personal funds beyond his insurance. Aside from these reasons, I’m not sure why you would be mediating.

      If the defendant does not have adequate liability insurance, does he have any ability to pay on his own? Most people who don’t have enough insurance are usually unable to pay an excess judgment (a judgment which exceeds their insurance limits). So as to whether you should “automatically go to court” if there isn’t enough insurance, the answer is “no”. Don’t go to court if all it will do is run up costs (which reduce how much you get) and result in a worthless excess judgment. If you actually have a chance to recover anything directly from the defendant (or if you have a possible bad faith case against the insurer), then it would be worthwhile to go to trial.

      Lots of people have been screwed by people with inadequate liability insurance. Most of the time, they are stuck taking the policy limits since the defendant is “judgment proof.” If this was an auto accident, and you don’t have UM insurance, then you just learned a lesson the hard way — don’t feel too bad, lots of people learn that they should have UM coverage this way.

      • sarah says:

        Thank you very much.
        This is not auto related.
        Defendant is private store owner. She is insured but with low insurance policy.
        I was injured in her store.
        I have never been told by my attorney if she would have enough privately to pay for the damages. If you have any other recommendations before I go to mediation, they would be greatly appreciated. I am not sure what the process would be given my situation. Thanks again.

        • fl_litig8r says:

          Sorry to hear that. If the store is a third party entity, such as a corporation or limited liability company, you may not be able to go after the personal assets of the owner, only the business entity’s assets. If the entity has assets worth taking, such as a building or inventory, it may be worth it.

          You really need to discuss this thoroughly with your attorney before mediation. I always have a sit-down meeting with my clients before mediation. Be blunt (but not rude), and ask him what he expects. Is the mediation just going to be a formality to satisfy a court order (in which case it will be over very quickly)? Does he know of any way to recover money beyond the defendant’s policy limits? If not, and he’s just going to recommend taking the policy limits at mediation, why not take the limits now and avoid the cost of mediation (which can be hundreds of dollars and will come out of your share of the settlement). If the insurer hasn’t offered limits, did he ever demand them (opening the door for a bad faith case)?

          Most other mediation issues are covered in this article.

          I wish you luck.

      • charlie says:

        If one is insured with limits say 50,000 person/100,000 incident and the settlement offer for one person is 91,000 (41,000 over the personal limit) is the defendent “judgement proof” as you stated for the remainder of the settlement claim?

        • fl_litig8r says:

          FYI — I answered your other question over in this post’s comments.

          Let me be clear about the use of the term “judgment proof”. This is not a legal term meaning that someone legally can’t collect a judgment from you. It is purely a term of art used to describe a situation in which a person clearly has no means of ever paying a judgment. So, in your case, if the plaintiff were to get a $91,000.00 judgment, your insurer would pay $50,000.00 and there would be a $41,000.00 judgment entered against you personally. If you have no way of paying this judgment, it would likely cost the plaintiff more to try to collect it from you (even slowly over time) than it would to just forget about it.

          “Judgment proof” is just a way of saying that you don’t have a realistic means of ever recovering a judgment against someone (so the judgment itself is worthless and not worth pursuing). It does not mean that legally the person can’t try to collect the judgment from you. If you won the lottery after such a judgment was entered against you, you can expect that the plaintiff would come after his money.

  2. sarah says:

    Also, in regards to the prior 2 questions I asked… Is this what disability insurance is for? Are there any safeguards in life for people who are victims of injury by an underinsured small business?

    • fl_litig8r says:

      Disability insurance would apply to any situation where you are rendered incapable of work through injury or illness, including cases like this. Of course, your standard disability policy only pays 60% of your prior monthly earnings, and it will deduct (or be repaid from) any damages you receive through a third party’s negligence, much like health insurance does.

      There are also more specific disability-like policies, like accident insurance, which cover injuries like this, but not disability due to disease or other illness. These types of policies are the only protection I can think of which would protect you from a non-auto accident tortfeasor’s negligence.

  3. Laura says:

    This article was much more articulate than most others than I have read, thank you for that.
    I was injured in Office Depot by a display that fell apart (metal shelves and all) and landed on my leg, and I am about to have my second surgery after Thanksgiving. It’s been terrible for my family.
    I have no attorney, but office depot has accepted liability for the accident, no questions asked.
    I have two questions:
    1) My medical insurance has covered the large portion of my medical bills. When I go to settle in the future, will Office depot pay me back what the insurance paid out for my care? Or will I have to reimburse the insurance company?
    2)I’m a homemaker with 3 kids living in a townhouse with 4 flights of stairs. What kind of reimbursement can I ask for besides babysitting to compensate me for being stranded in my home on one level for months?

    Thanks.

    • fl_litig8r says:

      Regarding your medical bills, generally any settlement should include an amount sufficient to reimburse your health insurer, as you will almost certainly have to pay it back. I doubt that Office Depot will agree to a piecemeal settlement, whereby they agree to pay you X dollars plus an unspecified amount to cover your your medical bills. They will want the settlement to be one lump sum to cover everything. This means you must know before settling how much you will owe your health insurer. Your health insurer should have a subrogation department which can provide you with this information. Be sure to get an itemized list of the payments for which it is seeking reimbursement, as often health insurers will include unrelated charges as well.

      For this, and other reasons, I recommend that you not settle until you have reached maximum medical improvement. While you may need the money now, if you settle before reaching MMI you are assuming all of the risk for your recovery going as planned. If there are complications, such as infection or adhesions (scar tissue caused by surgery) which cause your recovery to take longer and cost more than you expect, you will regret making a premature settlement. What if your physical therapy takes longer than anticipated, or you don’t respond as well to the treatment as your doctors predict? Your medical costs and recovery time cannot be adequately predicted before your reach MMI. Also, until you reach MMI, you can’t be sure of the extent of any permanent impairment that this accident has caused you. Because you are scheduled for another surgery, you are definitely not at MMI now, and probably won’t be until at least six months after the surgery. Patience isn’t easy under these circumstances, but you want Office Depot to pay for all your past and future damages, which cannot be accurately assessed at this time. You’d be taking a big gamble if you settle before reaching MMI.

      As to your second question, the damages for you being stranded on one floor of your house would fall into the general “emotional distress” category, also known as “loss of enjoyment of life.” You don’t need to itemize the value of each stressor, annoyance and inconvenience for this type of damage. It is far from an exact science and jury awards for these types of damages vary broadly from case to case. Some lawyers use a rule of thumb that you should ask for 1 to 3 times your medical expenses when calculating your total non-economic damages, which includes all emotional distress and “pain and suffering” damages — pain and suffering addresses physical pain caused by both the accident and treatment for your injuries, while emotional distress is your mental pain due to whatever temporary and permanent life changes you suffered due to the accident. While it is a good idea to list some of the major elements of your emotional distress (your one-floor living situation, not being able to care for your children, not being able to engage in your usual recreational activities) when demanding settlement, don’t try to put a value on each item. I’d recommend a demand letter which categorizes your damages as: (1) medical costs (including the insurance lien), supported by the appropriate documentation — don’t forget your anticipated future costs, such as medications, (2) other economic costs (your babysitter, transportation costs, having to hire a lawn service or maid service, etc.) and (3) non-economic damages — one lump sum to cover all of your pain and suffering and emotional distress. Ask for (significantly) more than you want in the third category so you leave room for negotiation. The first two categories should be non-negotiable in an admitted liability case, as those are just direct reimbursement for your actual costs.

      Don’t be shy about asking for at least 3 times your medical bills to cover your non-economic damages in your initial demand. Remember that the people from Office Depot are used to dealing with lawyers in their negotiations, so they will expect your first offer to be higher than what you “really” want. If you try to give them your real world settlement figure in your initial offer, you are killing your chance of getting that much (unless you ask for way too little, in which case they’ll jump on it and you’ll know you screwed up).

      I would be remiss if I did not suggest that you consider hiring a lawyer. Because Office Depot has admitted liability, you could try to negotiate a better fee agreement than is usually offered (as the lawyer is now guaranteed to be paid something). The lawyer will likely be able to negotiate a better settlement than you, and can also better negotiate a possible reduction in your medical liens. Whether the added benefit of the lawyer offsets the additional cost of his fees depends upon a lot of factors, including your negotiating acumen. As almost all personal injury lawyers offer a free consultation, it wouldn’t hurt to meet with one to see if he can justify how he can get you more money than you could get yourself, even after his fee.

      You should also note that just because Office Depot has admitted liability, that doesn’t necessarily mean that they will be reasonable when it comes to your damages. Plenty of “admitted liability” cases go to trial each year on the damages issues alone. If initial negotiations with Office Depot go poorly, it would probably be better to just hire a lawyer than continue to reduce your settlement demand in the hopes that they’ll suddenly come around.

      Here’s some parting, somewhat cliche advice to help in your negotiations: You will never get more from a settlement than what you demand, so always aim high.

      • Thank you for the reply!
        I actually have tried appointments with 3 lawyers now and none of them were worth my time.
        Two tried to hard sell me into a lawsuit with no real reason why and the third was just skeezy feeling. I’m certainly frustrated.
        I ended up having to have a second surgery as the first didn’t correct the issue once I came out of my casts. So I haven’t even gotten to the PT part yet. What a fun Christmas stuck on the couch, let me tell ya. :D

        Can I ask one more question?
        When figuring my medical damages, I can understand they are what the insurance + my oop expenses are. However, when figuring the 1 to 3 times for non economic damages, do I times it against my oop expenses or the whole total? Because that will make a drastic difference.
        Thanks!

        • fl_litig8r says:

          You multiply it by the whole total. To be safe, for the medical bills paid by insurance, use the amount your insurer actually paid, not the full amount of the bill. Health insurers often have a contract with health providers that allows them to reduce the bill. The bills will usually show 3 numbers: (1) the amount billed, (2) a contractual adjustment (this is the discount the insurer gets) and (3) the amount the insurer paid. So, you could see $1,000.00 bill reduced by a contractual adjustment of $200.00, with your insurer only paying $800.00. You’d use the $800.00 figure in your calculations.

          Also, be sure to include anticipated future medical expenses (prescriptions, therapy, monitoring, etc.) and pain and suffering in your calculations.

          I hope you get some better luck in your lawyer hunt. Without a recommendation from someone you trust, it’s not easy to know which lawyer (or any other service provider, for that matter) will be the best for your case.

          • Fred says:

            To be safe, for the medical bills paid by insurance, use the amount your insurer actually paid, not the full amount of the bill.

            Why is it safer to request the amount the insurance paid and not the full amount billed by the hospitals/doctors/etc.? My reading of a Nolo book indicated a (potential) plaintiff’s health insurance is none of the potential defendant’s liability insurance’s business. How can I know the hospital will not come after any settlement or judgement for the difference between what they were paid by our health insurance and the amount that would have to be paid, if the liability insurance was paying the hospital directly? This is Wisconsin and I did read about a case where this did happen and the hospital lost and was prevented from collecting more even though it was the liability insurance basically paid the hospital by paying back the health insurance. But how can I know if this case is relevant? Or if there is some difference that might make the hospital in our case attempt to collect? Without trying to get my hands on the contract between the hospital and our insurance company, how can I know if the contract does not say the negotiated discount is invalid, if the health insurance company is compensated for the discounted payment? Why is not the safest position to request the full bill from the medical providers, and to use this same number when estimating pain and suffering?

          • fl_litig8r says:

            I think you’re reading that NOLO book wrong. No liability provider is going to settle a claim without seeing your medical billing records first, and those will always reflect payments and discounts from your health insurer.

            If the hospital accepted payment from your health insurer, it can’t later change its mind and come after you or the liability carrier if the health insurer got a contractual adjustment. In cases involving Medicare or Medicaid, the hospital can choose to not bill them and instead wait to get paid out of a settlement (this is due to the laws affecting these programs that make them “secondary payers”, and that fact that they get huge discounts from medical providers). Even with these programs, the hospital can’t change its mind after it accepts payment.

            As to whether you’re reading that case you reference correctly, and its applicability, I can’t say. I just know that I’ve never heard of such of thing taking place — also, such a claim by a hospital makes no sense. Either it accepts payment and discounts from a health insurer or it doesn’t. It makes no difference to a hospital whether the health insurer ultimately gets reimbursed. The benefit from accepting the health insurer’s payment is that it gets immediate payment of its bill, as opposed to waiting, and possibly never being paid from a potential settlement. If it isn’t happy with its reimbursement amount from the insurer, it wouldn’t have made the deal to accept payment.

            You can use whatever figures you want in calculating your damages. I’m just saying how it works from experience.

          • Fred says:

            The Wisconsin case is here. The hospital lost, but I hear you and others say do not assume another case is going to be relevant to yours. For example this was an HMO contract and we have PPO. Could some part of the difference between these mean a hospital could decide to try again? How can one know if the hospital is going to go after a settlement?

          • fl_litig8r says:

            That case appears to still be good law, as it was mentioned in a July 2012 case which held that it didn’t apply to Medicaid claims. The statute cited in the case does apper to only apply to HMOs and not PPOs, but the plaintiff won under both the statute and the insurer’s contract with the provider which held the insured harmless from amounts which were reduced by contract. So, in theory, you can’t be balance billed if your PPO has a contract with the hospital.

            So, how do you find out if it has a contract that prevents balance billing? Call your insurer and ask. If you’ve already gone to the hospital, see if it billed your health insurer. In the case you cited, the hospital did not bill the insurer and only filed the lien. If the hospital billed your insurer and reduced it’s bill, odds are good that your PPO has a contract with the hospital and that the contract prevents balance billing — if it didn’t, the agreement to reduce the bill would be practically worthless. If the hospital billed your insurer, its highly unlikely that it plans to try to file a lien as well.

  4. Katy says:

    Thanks for the article. I think I got more information from this than my own personal injury lawyer. I was in a car accident almost a year ago that was not my fault and suffered a whiplash injury, as well as a lot of emotional stress. My kids were in the car with me and the other driver was reckless and ran me off the road. I received my “final offer” yesterday and it was insulting. My medical bills will be covered, but I am basically receiving nothing for pain and suffering. I had to buy a new car and no one seems to be taking any of this into account. My lawyer told me that liability, or the fact that it was the other driver’s fault is not taken into account, but your article seems to state otherwise. Should I fight this?

    • fl_litig8r says:

      With respect to the damage to your car, if it was totaled, you should have received its fair market value from the defendant’s property damage coverage. Even though you bought a new car, you wouldn’t be entitled to “replacement value.” Often, the fair market value of a car is far less than people expect. A useful tool for determining this is Edmund’s True Market Value tool (look for the box labeled “Appraise a Used Car”). If you’ve already settled the property damage claim, at least you can use this tool to see if the amount you got was fair.

      As far as liability is concerned, your lawyer may mean that the defendant has assumed 100% fault for the accident. After this happens, liability is no longer an issue in calculating damages, as you are then entitled to 100% of your damages. If a plaintiff is partly at fault, liability issues can reduce (or in some states, eliminate) the amount of damages to which she is entitled. However, you will never be entitled to more than 100% (unless punitive damages are at issue).

      I don’t know what state you are in, but in Florida, an automobile accident plaintiff cannot recover pain and suffering or emotional distress damages unless she has incurred a “permanent injury,” which is especially difficult to prove in whiplash cases. A plaintiff without proof of a permanent injury can only recover economic damages, such as medical bills and wage loss. I don’t know if this is the reason the insurer’s offer doesn’t account for your pain and emotional distress. You may want to ask your lawyer if it is even possible for you to be awarded non-economic damages. If he thinks you can’t, the insurer’s offer may look more fair.

      I can’t tell you whether to take the offer or not, as I don’t have access to all of the information about your case. Sit down with your lawyer and have him explain to you why he thinks the offer is fair (assuming he does). Then decide whether you agree, keeping in mind that the more you litigate this case, the more money from your settlement will be eaten up by costs (experts, depositions, etc.). Costs typically come out of your share of the settlement (after attorney’s fees are taken out), so every dollar you spend in costs reduces the amount you ultimately receive by a dollar. Do you think that you can recover a sufficient amount above the insurer’s current offer to cover the additional costs of litigation, which can easily run into the thousands if a case has to go to trial?

      Don’t be afraid to ask your lawyer questions. Obviously, you should be diplomatic about it (and not sound angry or accusatory). Part of a lawyer’s job is explaining to a client why she should take a settlement that is lower than she expected, if it is in her best interests to do so. I hope you get the answers you need to help you make this decision.

      • Katy says:

        The property damage has been settled and my insurance company did give me a check for what they valued it at. That was just enough to pay it off with a little extra left over. Not much though, and for sure not enough to purchase another reliable car. That is what I am most frustrated about.I knew that I wouldn’t get reimbursed for the new car I had to purchase, but I didn’t know the outcome of this would be as low as it is. I am not in Florida. Either way, I am ending up in the red because of the need to purchase another car and the other driver walks away with no incovenience. My lawyer said he doesn’t agree with the offer either and is willing to reduce his fees so that I may pocket more money since the offer was so low. But he also only stated the negatives if we were to go to trial and made me feel like it wasn’t a good idea. I know that he must be careful in his council but I wish I could get more straight forward answers so I didn’t feel so clueless. Either way I am most inconvenienced financially, physically, and emotionally for something that was not my fault at all and feel that I am the one having to sacrifice/pay for it.

        • fl_litig8r says:

          I only mentioned the Florida “permanent injury” requirement because it is typical to have some kind of injury threshold in no-fault states (in case you’re in one) before non-economic damages can be recovered.

          If your lawyer is already at the point of offering to cut his fee, then he’s pretty convinced that the offer on the table is as high as it will go, and that continued litigation probably wouldn’t produce a better outcome. If it seems that your lawyer is emphasizing the negative, it’s probably because he doesn’t want to get your hopes up by presenting a more balanced view. For some clients, if you give them a glimmer of hope, they’ll think it’s a promise and dig their heels in when it comes to settlement. I’m not suggesting that you’re like that, but lawyers are cautious by nature and yours probably doesn’t want to risk you being one those types of clients.

          I understand your grief over the car. You’re losing a car that you know is reliable and only given enough money to buy one of similar age and quality that may not be as reliable. People who are upside-down on their car payments get screwed even more, as they wind up with no car and still have to pay off the excess amount of their bank loan. In other words, it could be worse (not that that helps).

          Because your lawyer has offered to cut his fee, it sounds like he’s shooting straight with you. It seems that he just may not be that good at explaining his reasoning in lay terms.

  5. Rhonda Nielsen says:

    I had a slip and fall in Wal-Mart in Lee County, FL.. I slipped inside the store at the Garden Center checkout on a pile of human feces. I suffered a closed head injury and soft tissues damage. Questionable (hasn’t been properly evaluated yet) damage to my C-3 area. Does an x-ray properly view the c-spine?

    Also, Wal-Mart immediately began hounding me (their claims office) they wanted a phone recorded statement, etc. but I did not give one and instead contacted an attorney. Their claims office was very aggressive with me and I was intimidated.

    My attorney arranged a 3 way statement and a date was set. Later, my attorney said that after reviewing their store videos, Wal-Mart was backing out of the phone statement as the feces was not on the floor long enough for anyone to have taken action.

    I know that the cashier had nothing to do except look at the area where I slipped and fell as I had to get another item and her register was held up as we were half way through my order.

    I have photos of myself on the floor, the poop, the skid mark, etc.. A customer took the photos. I have heard that Wal-Mart is a very difficult company to deal with. Does it appear that I have a case?

    I may also have chosen the wrong attorney…not getting ‘good vibes’ from their office.

    Thank you for your valued opinion.

    • fl_litig8r says:

      Your case is affected by a fairly new Florida law governing slip and falls in businesses:

      768.0755 Premises liability for transitory foreign substances in a business establishment.—
      (1) If a person slips and falls on a transitory foreign substance in a business establishment, the injured person must prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it. Constructive knowledge may be proven by circumstantial evidence showing that:
      (a) The dangerous condition existed for such a length of time that, in the exercise of ordinary care, the business establishment should have known of the condition; or
      (b) The condition occurred with regularity and was therefore foreseeable.
      (2) This section does not affect any common-law duty of care owed by a person or entity in possession or control of a business premises.

      The “actual or constructive knowledge” language is a “known or should have known” standard. Liability in your case would certainly be affected by the length of time the feces was on the floor. However, it is feces, so I would imagine that it wouldn’t have to be there very long before someone who worked there would smell it — of course, this could work against you as well, should they claim that it was an “open and obvious” hazard.

      Wal-Mart is notoriously difficult to settle with (though its lawyers are no better than anyone else’s), especially if it thinks it has a liability defense. I think your case is really going to come down to what the videotape shows. If it shows a short span of time between the feces appearing on the floor (what is wrong with some people?) and your slip, with no employees walking by that could have detected it, you’ve got a weak case. Has your current lawyer seen the videotape? It may help to watch it with him (or just get a copy from him to watch on your own) to see what you’re up against. If your lawyer hasn’t seen the tape yet, he really needs to. If Wal-Mart feels so strongly about what it shows, it should have no problem voluntarily producing the tape. If it won’t voluntarily produce the tape, I’d have my doubts as to how good the tape really is for them. I definitely wouldn’t talk settlement before seeing the tape.

      If your lawyer is expressing doubts right now about your case, it’s because he has good reason. It would be pretty stupid of Wal-Mart to lie about the video, knowing that you can get a copy of it through discovery should you file suit. This may just be one of those cases where the business didn’t have sufficient time to become aware of a problem (that was not of its own creation) before a customer got hurt (in which case it wouldn’t be liable). It’s really going to boil down to what the tape shows (did I mention the importance of getting the tape)?

      I wouldn’t jump ship on your lawyer just yet (he might drop your case, anyway, saving you from his fees and costs). If he wants you to settle for “nuisance value” without seeing the tape, I’d find someone else.

  6. Rhonda Nielsen says:

    Thank you for your response. NO, Wal-Mart has refused to let my attorney view the video. I agree, the camera should have shown everything…including length of time the poop was on the floor and my fall.

    If, in fact, it shows that the poop had just fallen out of a diaper or someones, ummmm, rectum and there was no room for response, it makes me suspect as to ‘why’ they have not shared with my attorney.

    My attorney is not dropping our case. In fact, he intends to file suit. I was hoping to avoid that. And reach an agreement before litigation. My problem with my attorney is that it seems that there is a bit of miscommunication within their office.

    I would think that Wal-Mart would have invited us to view the video tapes if they clearly indicated that the poop had just materialized. BTW, it was clearly smelly poop and a lot of it- pudding consistency.

    Another thing- I have health insurance that covers Chiropractic and all other medical care. Should I use this for medical or a ‘letter of protection’ ?

    And finally, at what stage would it be prudent to purchase your 10.00 tip? Your opinion has already been well worth 10.00 :)

    Thank you!

    • fl_litig8r says:

      If Wal-Mart won’t let you see the video, filing suit is the only way to get your hands on it. I’m glad your lawyer didn’t get cold feet and is willing to see if Wal-Mart is bluffing.

      As far as your medical treatment, use your health insurance when you can. Your health insurer should get charged a cheaper rate than a cash customer (or one on a letter of protection), so even though you’ll probably have to pay it back, the starting point for negotiating repayment will be lower. Also, if you use the LOP and you lose your suit, you still have to pay the medical bills and you may have issues with trying to submit an insurance claim so long after the date of treatment.

      As far as my $10 tip, you should really hold off until settlement discussions start — and I don’t mean you just making your initial demand. If your lawyer calls you and says that he’s gotten an offer from Wal-Mart (other than “nuisance value”), that would be a good time. More likely, knowing Wal-Mart, you won’t need it until mediation, which is going to be many months from now.

  7. Rhonda Nielsen says:

    Thank you- Much appreciated. There are some good people in this world. I can’t believe you give this advice freely. I’ve learned more in these two communications than I’ve learned in many commmunications with various ‘others’.

    You’re a good man, *idontwnatotbeyourlawyer. thank you!

    • fl_litig8r says:

      Thanks for the kind words. If you’re a social networker, a Facebook “like” or a Google “+1″ (buttons are at the bottom of my articles) for any articles that helped would be much appreciated.

  8. Jason says:

    Thanks so much for the information on this site.
    I was injured in an auto accident. Other driver blew a stop sign at about 30-40mph. Insurance accepted full fault, I live in Oregon.

    I received a strong concussion and shoulder/neck injury. Went to MD, Neurologist, Chiro, Psych, Neuro Psych, did 2 cycles of PT, and doctor after doctor kept telling me it was just time that mattered. Shoulder never improved. Finally at the 1 year mark, I was referred to a top notch surgeon who correctly identified and did Artho on 2 rotator cuff tears. This was one year after accident. I have had every possible bad thing happen as a result. Lost/damaged credit, unable to pay bills etc. Much pain and every doc imaginable, including a shrink for major depression, suicidal remunations, etc.

    I have incurred $25k in medical, lost 6-7k+ at work (Out 6 weeks plus lost leave time), 6k damage to car, 1k rental car fees. 3 MRI’s, CT, Xray, ER etc. Probably about 30-40k in total.

    i was finally overwhelmed by the process. I did a ton of research and hired a highly recommend attorney with 40 years almost all PI, gone to trial many, many times, and has a character I very much trust. He has always said we would not discuss money as my health was important. The more I have read about the process, the more I understand WHY he has said that. I agree, and trust him as I said.

    -but-

    I have lost everything as a result of the financial impact of this accident. I am at 16 months post accident, 2 months post surgery, and finally feeling better again. I’ve read again and again that any good lawyer, especially one who has had so much trial experience as mine has a ballpark of what the case is worth. I’m at a point where whatever money I get is all I have to start over with so I want to bring up money so I don’t get bad expectations.

    Other driver had $50k policy limit and I have right around $250k in UI due to it being part of an umbrella policy. (Had to increase to maximum to get umbrella policy). I’m concerned that a great deal of my medical expenses were from my Chiro (former IME and State QME) and PT, and surgeons saying “hey lets wait and see if this clears up in a few months”. If I had had a good MRI and surgery right off the bat, my med expenses would be 1/2 of what they are. Instead I racked up 25k doing PT and chiro and neuro tests and the like.

    I’m just wondering what to expect, and if you can even tell me. I’m wondering what the process will be like over the next 6 months to a year (my atty just tells me to come back every 2 months and we update- very slow, and I understand why). I’m wondering what to expect financially etc. Should I bring up the settlement amount? How do I?

    I appreciate any advice you are willing to give, and am so grateful for your willingness to help people out of the good of your heart. Good on you my friend. I have been through the ringer, and just want a chance to start fresh when this is all done. Everything about this accident from the fault to the UI amounts goes in my favor, but I just don’t have any idea what to expect. I have read EVERYTHING (my attorney even remarks about my knowledge of the process) so I think I get it, but I just wanted to get an unbiased opinion and any pointers. Thanks for any tiem and help you might give.

    • fl_litig8r says:

      I believe your lawyer is telling you to take care of the medical and worry about the money later for two reasons:

      1. There appears to be plenty of coverage, thanks to your UM insurance, so you should be able to make a full (financial) recovery.

      2. He won’t be able to put a value on your case until you reach Maximum Medical Improvement (MMI).

      It sounds like you may be at or nearing MMI now. When you’re doctors place you at MMI, usually your lawyer requests a written report from them outlining your course of treatment, the extent of your recovery (your doctor will assign a permanent impairment rating if you have permanent injuries), and the anticipated cost of your future medical care. This, combined with your past medical expenses and wage loss claim, makes up your economic damages (your car falls under a separate coverage, so I’m not including that here). Added to that are your non-economic damages — your pain and suffering and emotional distress. In your case, because your emotional distress includes psychiatric treatment, your lawyer may need an MMI report from your psychiatrist as well — which might be a source of delay if you are not at MMI from a psychiatric standpoint. How your non-economic damages are estimated (and I stress estimated) is discussed in this article.

      Once you are at MMI, typically the next step is for your lawyer to send out demand letters (one to the tortfeasor’s BI insurer and one to your UM insurer) demanding settlement. At this point, your lawyer will have to have a rough idea of the value of your case because he’s going to try to settle it. He’ll obviously ask for more than it’s worth in the demand letter (we all do that because negotiation is expected), but he’ll need to have a real value in mind in case the insurers start real negotiations. From what you’ve described, I wouldn’t be surprised if the BI insurer tendered its policy limits (to avoid a possible bad faith lawsuit), leaving the UM insurer as the only real party for negotiations. That could take a while, and may require the filing of a lawsuit.

      If the BI insurer does tender policy limits, you should have enough (after attorney fees) to cover your medical liens and have money left over to be paid directly to you. Your lawyer may require that a certain amount be held back in his trust account (to pay his costs should you lose against the UM insurer), but he should be willing to make what’s called a “partial distribution” to you. This subject is covered in more depth in this article and its comments.

      As far as bringing up the value of your case with your lawyer, start with asking him whether all of your doctors have placed you at MMI yet. When the answer to that is “yes”, you’ll know that he should be able to give you a rough number. You can also broach the subject of when he expects to be able to send out his initial demand letters (he’ll have to have a number in mind by that point). Let him know that you understand that he’ll be asking for more than the case is worth in his demand letters, and you just want to know what he thinks a fair settlement range is for your case (ranges are easier than hard numbers for lawyers — if we give you a hard number, we may regret it later should things not play out as we anticipated). As you did your homework on the lawyer and know he’s willing to go to trial, I doubt that he’s avoiding giving you a number just so he can hit you with a surprise lowball settlement later. I think in your case it just boils down to your medical treatment taking so long that your MMI date has been delayed.

      Also, don’t be too critical of the doctors who wanted to wait and see if the rotator cuff surgeries could be avoided. There are real risks from rotator cuff surgery, such as adhesions (excess internal scarring from surgery), or worse, “frozen shoulder.” I had one client who needed rotator cuff surgery who wound up with every complication imaginable (including the need for several follow-up surgeries — she also needed extensive psychological help, as you might imagine). Her shoulder never fully recovered. The silver lining was that she made a huge recovery, but unfortunately she had to earn every penny of that with pain and disability. Be glad that your surgeries went well, but appreciate why your doctors were in no rush for you to have them.

  9. Jason says:

    Thanks so much for taking the time to write all that. It really means a lot, and made me feel like I have a better grip on it.

    Right after I posted, my attorney called me in and advised me that we start the settlement process. He said that being 4 months post surgery and still having some issues gave him more leverage. He also said he would leave the head injury out of it. Gave me a long explanation as to why and it made sense, being that I work in IT, cognition and the rigamarole that the defense would put me through if we used it.

    My shoulder still hurts, and reading some people’s accounts of rotator cuff surgery scares me to death to think I will never get full functionality back. I don’t want to settle and wind up having problems down the road, but if we get policy limits, I will be covered for future problems as well.

    My only other question pertains to settlement amounts. I have read all over the net (unreliable I know) and every book or article I could about settlements with my injuries. I know they can vary by so many factors. I have seen folks with my injuries get almost nothing and get huge amounts. I understand that this is in large part to policy limits. I guess my question is do yo think he will go for policy limits? There is 50k from the other driver and 250k in UM.

    I know you have no way of determining that, I guess I”m just curious as to what factors an attorney uses in making that decision. I”m not money grubbing, I have lost everything in this process, including my car, credit cards, and almost my place to live. Whatever I get is all I have to start over.

    I understand you probably can’t tell me that, but know that I truly appreciate your willingness to answer so completely and thoroughly. You have made me feel a lot better about the whole process. More than anything I realize that I’m lucky to have good coverage, and good counsel.

    • fl_litig8r says:

      I really can’t say whether your lawyer should request policy limits on both the BI and UM claim. $300,000 is a lot of money for a rotator cuff claim, unless you have severe complications. I would guess that he will demand the full $50k from the BI insurer. It’s the $250k in UM that seems like a tougher sell. There are really too many unknown variables for me to say whether a policy limit demand for the UM is practical for your specific claim. Your lawyer is in a much better position to know, especially because he has access to settlement and jury verdict information for your geographical area (yes, lawsuit values vary from place to place) in addition to all of the specifics regarding your medical treatment and possible wage loss claim. It sounds like he’s doing a good job of explaining the process to you and why he feels that certain claims should be made or avoided. My only advice at this point would be to trust his experience and knowledge when it comes to settlement figures — he seems to know what he’s doing.

  10. Steven Y. says:

    Great article. As a victim of personal injury, I’m glad to find an easy to read breakdown.

    I have a soft-tissue injury case involving a driver hitting me while I was on my skateboard. The collision broke my board and laptop computer. Is it normal for an attorney to base his contingency fee that includes property damage as well. I thought insurance companies dealt with property and medical separately. I’ve been talking to an attorney about his contingency fee and he said that it would be a percentage of the entire settlement, which includes medical/pain-suffering and property damage. Thanks for the help.

    • fl_litig8r says:

      It’s not unusual for a lawyer who is handling a property damage claim as part of a personal injury case to take a percentage of that claim as well, which is why a lot of lawyers don’t want to handle property damage claims — they know that their fees usually won’t be offset by any increased settlement their services may provide. So, unless your lawyer is willing to handle the property aspect of the claim for free (some will), I suggest that most clients, especially ones with property damage claims for their vehicles, handle these on their own.

      You are correct in noting that most insurance companies handle property damage and bodily injury claims separately, most often with completely different adjusters assigned to each claim. If your attorney’s fee contract does in fact include your property damage claim, see if your lawyer will let you out of it solely as to the property damage aspect of your claim so that you can handle it on your own. I imagine that you can argue the value of your skateboard and laptop as well as your lawyer can. The only problem I would see is if the the defendant driver is challenging liability (who is at fault) for the accident. Proving liability is something you should let your lawyer handle. If yours is a case of admitted liability, I see no reason why your lawyer should handle your property damage claim.

  11. tamika walker says:

    my injury is carpal tunnel and i have been to several doctors one doctor said, he didnt want to do the surgery because i wouldnt get better and the second doctor pretty much agreed with the first doctor once he read the notes ,so next month i go for a rating ,im upset because the first doctor released me to go back to work and my employer wont take me back this has been going on since nov 8 2011 and my ttd checks stopped march 10,2012,so me and my attorney agreed to go ahead and get a rating in june 2012 i have no income,but im patient so by me getting a rating is that the best thing for me and with carpal tunnel is there a certain rating for that and is that a good thing or bad please help

    • fl_litig8r says:

      As a disclaimer, I’m not a workers compensation lawyer. I have some familiarity with it, but it’s not an area I feel comfortable discussing. That being said, I doubt that there’s a specified listing for carpal tunnel syndrome (I could be wrong). This would mean that instead of a mandated and fixed impairment rating, the rating doctor would have flexibility in assigning a rating for this injury. This could lead to a “war of experts” over what the appropriate rating should be.

  12. tamika walker says:

    your are probably right about that “war of experts” okay i have one more question hopefully you can answer my employers attorney stalls alot like for instance with my medical bills ,we have to send out a 7 day demand letter before they got paid ,but just asking them to pay my medical bills it wasnt getting done and thats how we have to get things done with them is send out 7 day demand letters or preliminary court dates . why is that

    • fl_litig8r says:

      My best guess would be that the defense attorney is just gaming the system so that the insurer holds onto its money as long as possible (when this is done to a large number of claimants the interest really adds up). As long as there are no negative consequences suffered as a result of the insurer not paying the bill until a demand letter is sent, what incentive does he have to pay the bill without taking advantage of the delay generated by waiting for a demand letter?

      My ignorance of comp law prevents me from telling you whether there is any mechanism (such as moving for sanctions or filing a complaint with the state department of labor and/or insurance) your lawyer can use to punish them for this behavior.

  13. Raymond says:

    I was rear ended at about 40mph on a major expressway here in Michigan on March 24, 2011. We had a case evaluation that came up with $160k. The defendant has already admitted liability but because this accident happened while I was traveling on company business there is also a workers comp law suit ongoing. The accident caused injury to my lower back that ended with me being fired from my employer of 25 years since I could not return to work (tried to 3 times and ended up in medical in sever pain). I have my family doctor and surgeon both giving depositions that certainly favor my case but the other lawyer is using the IME paid for by my employer who states he does not see any pathological difference between my MRI following the accident and the MRI taken in 05′ the last time I had extreme lower back pain that was resolved with P.T.. So they say therefore no injury no money. My surgeon talks about symptomology and that it had me in so much pain I followed his recommendation of P.T. and 3 spinal epidurals for which I saw no improvement so I opted for a 2 level (6 hour) spinal surgery because I could not live in that much pain.

    My surgeon did not do a comparison of a 6 year old MRI to the current MRI but in his notes he says there is evidence that the condition is worse. He is the same surgeon I saw in 05′.

    The defendant’s lawyer is trying to get a summary judgement and the case thrown out because the hired gun doctor (IME) says the auto accident did not cause any significant pathological difference. My surgeon states the symptoms, severe lower back pain, pain radiating down both legs and numbness in my left foot were certainly caused by the accident.

    So my question is is there more emphasis put on the pathology or the symptomology? Even after the defense saw the case evaluation for $160k that got turned down by both sides they now think the case is only worth about $5k. At mediation the Mediator never had a meeting with all parties together but spends 20 minutes with the defense and then comes in and tells me and my lawyer we have no case and he knows juries and I will not get anything at all and states its his job to make sure everyone leaves his session unhappy. Well I walked out after an hour and still no face to face with the defense.

    Is the pathology as stated by the IME more weighted than the actual symptoms and subsequent surgery?

    I feel like I got royally screwed by this Mediator and was hoping to get your opinion.

    • fl_litig8r says:

      You’re facing a tricky issue. If the post-accident MRI doesn’t show any change from the ’05 MRI (your doctor can hopefully address this before the summary judgment motion is heard), you lack objective evidence that the accident caused you injury. However, the inquiry does not stop there. If your medical records dating back to ’05 show that you were asymptomatic (with no or few pain complaints) after your PT and only became symptomatic again after the accident, you have subjective evidence of causation. Even assuming that your doctor agrees that the objective findings are relatively unchanged, the subjective evidence should be enough to prevent summary judgment and get you to a jury. Then the issue becomes largely one of credibility — does the jury believe you when you say you only became symptomatic again after the accident?

      Honest doctors will tell you that you can have two people with virtually the same spinal MRI findings and have one person completely asymptomatic, while the other person is in a great deal of pain. You can also have someone with a herniated disc who is completely asymptomatic until a trauma activates the onset of symptoms. Even if the person had some symptoms, the subsequent trauma can aggravate the preexisting condition and make those symptoms much worse. If your attorney deposes the IME doctor (I’m assuming he will if this doctor’s opinion is the basis for the summary judgment motion), hopefully the doctor will be honest enough to admit these things. Once he does that, he’s basically admitted that objective MRI findings are not the “be-all, end-all” of causation when it comes to spinal pain.

      The best case scenario, of course, is if your doctor opines that there are objective changes in the two MRIs which show a worsening of the condition. That would surely preclude summary judgment and get you to a jury. Then you would have both objective and subjective proof of causation (albeit with the objective findings being disputed between the medical experts).

      It sounds like your mediation was ill-timed. The defense seems too in love with its summary judgment argument. I doubt that there’s anything the mediator could have done to convince them otherwise. However, as I’ve stated in other comments, I’m not fond of mediators that forgo a joint session. Assuming you get past summary judgment, perhaps a second mediation which involves a joint session (and maybe a different mediator) would be more productive.

      As an aside, while doing some quick research on Michigan law to see if there were any quirks regarding asymptomatic vs. symptomatic injuries, I came across an article which appears to be potentially bad news for your workers compensation claim. The article is from 2003, so there may have been subsequent changes in the law, but it discussed a Michigan Supreme Court ruling holding that symptomatic aggravation of a preexisting condition is not compensable under state workers comp law. Again, if your doctor will testify as to a worsening in your condition being reflected in the two MRIs, this case shouldn’t apply. However, if you intend to rely purely on subjective evidence in the comp case, it could be a major problem. Your Michigan comp lawyer would know about this better than I would, of course.

  14. Cathy H says:

    I was hit by a logtruck who ran a red light and didnt stop. The driver was located and admitted to not looking and feeling a bump but said they did not see a vehicle. I had herniated disc had carpal tunnel surgery, ulnar relase surgery and a triple discectomy from the injuries. My atty demand 825,000, but my medical bills are 163,000. We are going to mediation next week and I was wondering where you thought I should put my bottom line figure. I was told commercial vehicles have a million dollar insurance policy.

    I FORGOT TO SAY THE ACCIDENT WITH THE LOG TRUCK WAS IN BAY COUNTY, FLORIDA AND THAT THE OTHER SIDE OFFERED 100,000 AND ASKED FOR A 60 DAY EXTENSION. WE GRANTED THE EXTENSION, THAT HAS NOW EXPIRED AND WE ARE NOW GOING TO MEDIATION ON JULY 13.

    • fl_litig8r says:

      First, unless your lawyer told you that the company has a million dollar policy limit, don’t believe it. Commercial insurance policies are not “one size fits all”. It could be less (though your attorney’s demand of $825,000.00 makes me think it isn’t) or it could be a lot more. As defendants in Florida are required by law to disclose their policy limits, your lawyer will know exactly how much coverage is available. It doesn’t sound like that’s going to be a limiting factor in your settlement.

      As to what your bottom line number should be, there’s no way I’d tell you that. There are way too many variables involved beyond your past medical bills (preexisting conditions, what impairments you currently have, past and future wage loss, anticipated future medical costs, etc.) for me to make that call, and frankly your lawyer is in a far better position to know what your case is worth than I am. I will say that if your lawyer demanded $825,000.00, and that isn’t the policy limit (it may be), he thinks your case is worth a good deal less than that — we always inflate our initial demand to leave room to negotiate. If $825,000.00 is the policy limit, then your lawyer may think your case is worth that much, and may not plan to budge much at mediation.

      Clearly, you have a strong case from a liability standpoint. As long as your damages aren’t affected by any preexisting condition/causation issues, it sounds like you’ll be able to put on a great “damages” case as well. At the pre-mediation conference with your lawyer, you should ask about the defendant’s policy limits. You should also ask what your lawyer estimates your wage loss and future medical costs to be. You’ll need to add those figures to your past medical costs to have a baseline number to work from in figuring out a fair amount for your non-economic damages (pain and suffering). I am a bit concerned that the defendant only offered $100,000.00 (given your past medical costs alone), especially after asking for an extension on the settlement offer. That could indicate a problem with your case of which I am not aware (such as a seat belt defense or other comparative fault issue). Or, it could be that the defendant preferred to mediate the matter rather than try to settle informally, and it just wanted to leave itself plenty of room to move at mediation.

      As you can see, I have more questions than answers about the value of your case at this point.

  15. Cathy H says:

    Yes my atty said they had a million dollar policy. As for as future medical my attending physician recommended an additional surgery and future yearly costs at 203,000 and the chiropractor recommended 58,000 in future medical costs for him. My doc gave me a 38% impairment rating overall, but it would have been 42% had he not combined the upper extremeties. I was a self employed lawn maintenance person and did not file taxes for 2009 or 2010. Therfore I cannot prove any lost wages. The accident was 7/22/2010.

    My atty also said that the opposing atty worked by the hour and wanted mediation so that he could charge his client more.

    • fl_litig8r says:

      I wouldn’t be surprised if the defense attorney wasn’t motivated at least in part by wanting to bill some hours on this case before it settles.

      Seeing that your past and future medicals alone are over $400,000.00 (although I don’t know how much weight will be given to the $58,000.00 in chiropractic care), I would expect at least a $500,000.00 settlement (if this seems low after adding in pain and suffering, it’s because I expect the defense to dispute your future medical costs and expect that you’ll get a discount on the past medical costs). Of course, this assumes no preexisting conditions and no liability defenses.

      Don’t take this as gospel, however, if your lawyer has reasons for suggesting you take less. He knows the specifics of your case far better than I do. Hopefully, my expectation won’t be an issue and they’ll offer you far more than I expect. My biggest concern at this point is their low opening offer. But, as I said, they may not have wanted to get serious about negotiations prior to mediation. The fact that you’re having a pre-suit mediation (I assume this is pre-suit) is usually a good sign that the defense wants to settle.

  16. Cathy H says:

    Yes, this is pre-suit. I just wanted to say THANK YOU for taking your time to provide this site. It has been very helpful to me and I have already gotten your $10.00 tip. I had considered that before although many people told me not to even try it. I am going to.

    My atty today, talked to the opossing side and he is very optimistic that we will settle for upwards of 450,000.

    Again thank you for having this web site. You have raised my opinion of lawyers having a human side to them. You certainly do.

  17. Cathy H says:

    Well mediation was a flop. Really, I think my attorney jumped the gun, he got mad and left after only 3 hours, when the other side did not raise their offer but 50,000. We are now filing suit (should be filed now) and my atty has asked me about a settlemenet proposal. (he said it would be 90 days before we would do one). My question is do you have any insight into Proposal Settlement agreements.

    • fl_litig8r says:

      Yeah, as I said, I was concerned by the defendant’s $100,000.00 pre-mediation offer. Sucks to be right sometimes.

      The 90 days you need to wait is a requirement of the Proposal for Settlement rule, Fla.R.Civ.P. 1.442, which requires that a plaintiff wait 90 days after the defendant is served with the complaint before sending one to the defendant.

      Proposals for Settlement are tough from the Plaintiff’s side, especially in high dollar value cases, because you need to beat them at trial by at least 25% to trigger fee entitlement. Also, when dealing with such large numbers, the added pressure of a potential award of attorney’s fees isn’t as great.

      There are generally two approaches you can take: (1) an offer that is so low you almost don’t want them to accept or (2) an offer for what you actually want. The benefit of #1 is that it really increases the likelihood of being awarded fees, and the likelihood that the defendant will settle (but for less than you wanted). The downside of #2 is that it makes it really hard to trigger fee entitlement unless the jury really goes your way, and makes it less likely that the defendant will accept it.

      So, if you wanted $450,000.00 at mediation, approach #1 would suggest an offer of $350,000.00-$375,000.00, requiring at the high end a judgment of $468,750.00 to trigger fee entitlement. Approach #2 would suggest demanding the full $450,000.00 (or a little higher), which would require a judgment of $562,500.00 to trigger fee entitlement.

      You could do the PFS at the higher number right out of the gate, and then if things don’t look at promising afterwards do another for a lower number. One good thing about proposals for settlement is that you can do more than one. Subsequent PFS’s do not negate earlier ones, so if you do 3 PFS’s over the course of a case, in descending amounts, and get a judgment high enough to beat the first one by at least 25%, you get fees from the date of the first offer. If you only beat the second one, you get fees starting from the date the second offer was made.

      Because you’re first PFS will be done so early in the case, it leaves plenty of time to do a second or third while still leaving lots of time for fees to build up after each.

      Hope this helps, and sorry your mediation impassed.

  18. Cathy H says:

    When does the contingency fee go up? Is it only if you go to trial or is it as soon as a suit is filed?

    • fl_litig8r says:

      The fee goes up after suit is filed, not at trial. You have to check your fee contract for specifics, but it’s likely that the fee goes up after your lawyer files a Complaint and the defendant files an Answer in which it denies liability (usually due 20 days after it is served with the Complaint). So, if your lawyer files a Complaint and the defendant immediately pays up, you’re probably still at the lower fee. Or, if your lawyer files a Complaint and the defendant files an Answer in which it admits liability, meaning that it is only contesting the amount of your damages, you are likely still at the lower fee.

  19. irma monteiro says:

    Hi, on I am a 50 year old female from Massachusetts. On December 1st, 2011 I had a hemoragic stroke. I went to my local hospital by ambulance and was med flighted to Tufts Medical in Boston. I was in CCU for about a week and then went to rehab. I was very fortunate with my outcome, loss of left arm use and tremors in left hand and head. I was approved for disability and ssi. After researching strokes, I believe that mine was caused by my being on the medication ibruprofen that my doctor put me on 5 years earlier after having been diagnosed with lyme disease. I was taking 2400 mg every day for 5 years. I researched side effects of this med and your chance of stroke increases the longer your on it with high doses especially if you have high blood pressure (which she was also treating me for). Anyway I wrote a letter to the Drs. office and was contacted by her insurance company. They requested copies of my doctor and medical records, I also got copies for myself. They are now waiting for the medical experts (intern doctor and neurologist) reply.I called a couple of attorneys before writing to them but could not get one to take my case. So I started it myself. Does it sound like I might have a case? If they do offer to settle should I proceed myself or try calling for an attorney again? My hospital bills are approximately 48000. That does not include the rehab bill or med flight.

    Thanks for your time, and your website. Sincerely new nana

    • fl_litig8r says:

      You may have a case, as long-term use of high doses of ibuprofen apparently triple the risk of stroke according to recent studies. Of course, proving causation won’t be easy because the majority of people who have strokes don’t have a history of long-term ibuprofen use.

      I would definitely advise trying to hire a lawyer for this, even though your past efforts have failed. You just need to broaden your search, as most firms won’t want to take a case such as yours unless they are planning on bringing similar cases on behalf of many people. The up front cost of proving such a complicated issue won’t usually be justified if you only have one case. So, broaden your search and look for lawyers who are actively seeking people who suffered strokes after long-term, high-dose ibuprofen usage. Doing a quick Google search for “ibuprofen lawsuit stroke” brought up a few firms for me on the first page (obviously, I can’t vouch for any, as I don’t know them).

      I wouldn’t wait until you hear back from the doctor’s carrier. I’d try to find a lawyer now. There is a lot of work to be done by a lawyer to see if you have a good case, and med mal cases usually have very short statutes of limitations.

      • monteiro says:

        Thank you for your response. Could I just ask you about the statue of limitations in Mass, is it 3 years from starting the ibruprofen or 3 years from when I had the stroke?

        Thank you again for your help, take care.

        • fl_litig8r says:

          If only it were that simple. In most states, the medical malpractice statute of limitations runs from the date on which the plaintiff knew or should have known that (1) she was subjected to malpractice and/or (2) she suffered an injury. I say “and/or”, because some states start the clock ticking when only one of these events occur, and some require both. I’m not going to say what Mass. law is on this, because that would be a matter of caselaw which I don’t have access to in my research plan, and I wouldn’t trust plain old internet research for such an important issue.

          Another issue you need to worry about is the “statute of repose” for malpractice claims, which caps the length of time in which you can bring a med mal claim regardless of the date of discovery. Under Massachusetts G.L. c. 260, § 4, the relevant statute of repose language reads:

          but in no event shall any such action be commenced more than seven years after occurrence of the act or omission which is the alleged cause of the injury upon which such action is based except where the action is based upon the leaving of a foreign object in the body.

          This is why I say you really need to find a lawyer to take your case ASAP.

          • Monteiro says:

            Hi, I wrote to you last month from Mass. regarding having a stroke from what I believe was taking too high a dose and too long a time on ibuprofen. After many, many attempts to hire an attorney and to no avail, I sent a demand letter to the insurance company against my 2 doctors (the ins rep I’ve been talking with told me to include the original doctor that prescribed the medication as well as the dr. that took over her practice). They sent me a response letter denying my claim stating the experts said the epidemiological data says that the med causes a specific kind of stroke not the kind I had. With all my researching none of my info reports a specific kind of stroke, just says “stroke”. They also only responded to the second doctor not the original doctor. Can I request to read their experts report and also request their data reports they say they have? Thank you for your time.

          • fl_litig8r says:

            You can ask for it, but they don’t have to provide it to you. I’d actually be very surprised if they did.

  20. sara says:

    Hi im 27 years old, I was injured in my scooter for a driver who passed the stop sign, he got a ticket and a court citation for the violation, there is a traffic crash report which says that. The driver admit the foult with his insurence even in the court. I went to a doctor for my injuries and a severe pain in my knee. obviously I contacted to a lawyer. After a MRI the result was ACL Full thickness tear. I had a ACL reconstruction surgery and 4 months post surgery rehabilitation, Now Im doing good with my rehab and waiting 3 more weeks for finally get a MMI for the doctor… How much is the average value of my case? Is a ACL reconstruction surgery a hard tissue injury? … The insurance limit is $250,000.00.. How much of this limit I deserve for pain and suffering?… Thank you for the support..

    Sorry for my english…

    • fl_litig8r says:

      Sorry to be vague, but there’s really no such thing as an “average value” for your case. Seeing that you’re not at MMI yet, not even your own lawyer should put a value on it at this point. It will depend largely on the amount of your medical bills and how well you recover. If you still have pain and/or functional limitations in the knee after you reach MMI, that will drastically alter the value of your future damages from a scenario in which you make a full recovery. Also, your age, whether your employment was/is/will be affected, and even your geographical area (some places pay more than others — such as areas that have a higher cost of living) will affect your case’s value.

      Your case, even though it involves an injury to a ligament (technically, a soft tissue) is not a “soft tissue” case in personal injury parlance, mainly because it required a surgery. When lawyers refer to soft tissue cases, they really mean strains and sprains and maybe micro-tears of tissues that don’t show up on MRIs or other objective tests. While we don’t really use the term “hard tissue” case (we mostly say it’s a “surgical case”), your case is definitely not a simple soft tissue case. It will be worth more than a soft tissue case, and I doubt that the defendant is going to contest your need for treatment or the amount of treatment you’ve been getting (as it often will in soft tissue cases).

      All I can do at this point is refer you to the article’s guidance for ballparking the value of your case, once you reach MMI and you know the cost of all your past medical treatment, as well as the expected cost of any future care. Just keep in mind that the advice I give in the article is really just a “rule of thumb” and your lawyer will have a better idea of what your case is worth from his experience in your area.

      It’s great that the defendant has a decent policy limit. I don’t know that I’d get too excited about the possibility of getting nearly that much for a knee injury, but much of that will depend on the specifics of your case.

  21. Helene says:

    I’d have to say this is a VERY useful site and I appreciate you for doing it. I was in a MVA in 3/2010. 100% the other drivers fault. In 12/2010 his insurance offered settlement of his policy limits. I advised my insurance I wanted to file a UM claim. From the beginning my adjuster has been extremely difficult to work with. I continued treatment and advised them in writing in early April of this year that I was prepared to settle my claim. I have $50k in policy limits and told them that was what I wanted. I had/have chosen not to hire an attorney. I have permanent injury to my neck with multiple bulging discs, went through multiple MRI’s, had a spinal tap to r/o multiple sclerosis (which the neuro doc said could be caused by the neck trauma and because I’ve had abnormal results from my MRI’s) Well, anyway in a nutshell, I’ve spent the last 4 months trying to get a settlement with an adjuster who doesn’t return phone calls or says they will call and don’t, and appears to be dragging it out as long as possible. The other day I received a check in the mail for their initial offer. Of course I have no intention of cashing it, particularly when the note section says “settlement.” I have never actually written a demand letter to them, but during my last telephone conversation I told them I could not settle for less than 30k. I’m hoping I haven’t screwed myself because whilst I’ve had all this idle time waiting on them to call me as promised, I have revisited my figures and at 3x my medical and all of my OOP’s, I arrived at a figure of 42k. The insurance commissioner’s office says I have a valid complaint against them. So, my questions are this: A) can I send a demand letter with the revised up figure for settlement?, B) Should I pursue a complaint with the MS Insurance Commissioner? Funnily enough, the adjuster phoned as I am writing this. Stated they wanted me to have what they sent while they are working on my request (how nice of them-sarcasm). Promptly informed I wasn’t doing anything with it until resolved. I asked when I should expect to hear from them and the non-committal response was “it shouldn’t be too long.” Now what?? Thanks for your input!

    • fl_litig8r says:

      Without the ability to file a lawsuit against your insurer (I mean, technically you could proceed pro se, but I really don’t recommend it), you’re kind of stuck working on its time table. I’m not sure how effective the MS department of insurance is in handling consumer complaints, so I really can’t say whether pursuing such a complaint would do any good.

      You definitely screwed up in telling them you wouldn’t accept less than 30k. It’s going to be damn near impossible to get the insurer to offer you more money than that now that it thinks this is what you really want. At this point, I can only suggest putting your demand in writing, laying out all of your bills and your grounds for demanding a higher amount. You could tell them that your prior representation about the 30k was due to a calculation error on your part which you have now corrected, so it really should have paid you the 30k while it had the chance. Now that you fixed the error, that’s no longer an acceptable amount.

      If they won’t make you a reasonable offer, you may have to bite the bullet and hire a lawyer. Take the highest offer the insurer made to you and use this to try to negotiate a reduction in the attorney’s fee (seeing that you already have an offer for X dollars). As long as the insurer isn’t threatened by a lawsuit, it has less incentive to move quickly or act fairly in settlement negotiations.

  22. Raymond says:

    First I want to thank you for the time you put in on this site and how much all of us appreciate your help, patience and assistance.

    Ok we had a new deposition on July 16th with my surgeon conducted by my workers comp lawyer and my former employers comp attorney. Before we started we had the surgeon review the MRI’s from 05′ and 11′. He found two of the three spinal segments with significant changes and those are the two he operated on. First he states that in 05′ on one of the vertebrae it clearly shows nerves going through the opening wrapped in fatty tissue as it should be. In 11′ the disc material is now pushed against that side and no fatty tissue surrounding the nerves. He says it exactly matches my new symptom of pain going down the right leg in addition to the left leg as in 05′. He states without equivocation that the accident caused anatomical changes that exactly correspond to the MRI and the symptoms I felt. I feel much better having this on record. The defense is still pressing ahead with their Summary Disposition (S.D.) knowing a new deposition was done but they have not received a copy as of today. The court has allowed their S.D. to be heard and my lawyer has until the 15th of August to respond. Obviously our response will include all the new evidence provided by my surgeon at the latest deposition. The S.D. is scheduled for Sept. 17th and I’m still worried that they might not allow this new evidence, am I being paranoid? My lawyer says its not an issue.

    Also, I’m very close to getting approved for Soc. Sec. disability and wanted to know if I get that before any of the trials, this third party trial, workers comp trial and wrongful termination trial, will it affect or be to my advantage having the Federal Government recognizing me as disabled?

    Again, I appreciate all your help…

    • fl_litig8r says:

      There shouldn’t be any problem with introducing the new deposition in opposition to the summary judgment motion. If for some reason the transcript isn’t ready in time, it would probably be reversible error for the court to deny your lawyer an extension to his response deadline. So, I think your lawyer is right that there’s nothing to be concerned about.

      As to the social security issue, a finding that you are entitled to social security disability benefits would not be binding on a jury or in a comp hearing. The positive finding may be admissible as persuasive evidence that you are disabled, though the court may issue a special instruction to the jury that they need not follow that determination. It may also be admissible regarding your damages, as your receipt of benefits will affect your future wage loss claims. In short, it will be a positive, but maybe not as helpful as you might hope.

  23. Rhonda says:

    I am a 58 yr. old female who 5 yrs. ago was in great shape. 128 lbs…. working 3 part time jobs and country dancing 2 to 3 times per wk. I had been diagnosed with psoriatic arthritis when I was 40 but it was in remission and no effect on my vitality. I was involved in a MVA on 1/29/08. I was a part time rural mail carrier and my postal truck was hit by an 18 wheeler from behind. Being part time I had no medical insurance, retirement, etc. like full timers have. I was working toward becoming full time with benefits when the accident happened. My driving record with the post office was spotless and I had a safe driving commendation award on file. I was delivering mail on a rural narrow highway about 2 pm in the afternoon on a clear day. I had just delivered my last box on the highway before turning left up ahead to continue delivery. When you deliver on the highway you are never out of the road & this particular highway has a notorious record for 18 wheelers flying along. I delivered my last box & was proceeding ahead in the road to turn left into a neighborhood. (that last box was over 150 ft. from where I was going to turn left.) Just as I started into my left turn. An 18 wheeler came flying up behind me, struck the back left corner of my truck which caused the front of the truck to be knocked into his path & he slammed into the left front side (would be the drivers door on a reg. vehicle but mail carriers drive on the opposite side), crushed in that door sending mail all over the street…. this hit caused my mail truck to veer off to the left… I knocked down a row of mail boxes, ran into/ through a ditch, went air born and landed in front of a border hedge across on the opposite side of the road from where I started all the way across a man’s yard. I remember everything just the way I said it up to the point of impact…. after that everything was sketchy until I was on my way to the hospital. The rest here is muddled a little with memory and a lot with what I learned …. the highway patrolman approached the truck driver and asked him to explain the accident … took the truck driver’s word for everything that happened…. the truck driver told him I was OFF the road at the mail box directly across the street from the left turn I was making and that I made a direct turn right in front of him from OFF the side of the road…. the officer never confirmed anything with me and wrote the ticket up that I failed to yield right of way. That is so far from the way it happened…. I had a court date for the ticket and it was thrown out for lack of evidence … so…. that left liability for the accident up in the air. I had a torn rotator cuff in the right shoulder, I could not rotate my neck at all and my lower back and right hip was injured so I could barely walk. Being a postal worker I had to deal with Federal Workers Comp and fought hard with them the last 5 yrs. to get my injuries taken care of and get paid … I have been commended for the hard work and effort I put in to that because even attorneys are very few and far between who will mess with DOL… I had 3 spinal fusion surgeries front and back and regained only about 60% rotation back at MMI. DOL sent me to PT several times but cut me off short of any real help and never approved surgery for my right shoulder. I also suffered PTSD (as diagnosed & medicated by my psychitrist) and severe anxiety and have not driven for almost 5 yrs. for both physical and mental reasons. My doctor has stated I will not be able to go back to my job. During the 5 yrs. since the accident (going from healthy, fit, & extremely active) I have gained over 50 lbs…. my blood pressure has become a problem, my asthma that I had not been effected with since I was a small child came back on me full force and the arthritis that was in full remission became full blown and debilitating…. struggling to survive I went to Social Security for extra help & when they sent me to their Dr. I was immediately put on permanent disability due to my stage of arthritis & asthma…. and put on MEDICARE…… the truck driver is denying liability because he still claims I pulled directly out in front of him … he said he was moving along about 45 and around 150 yds. back he saw me delivering mail, slowed down, blew his horn and moved over a little to go around me when I turned directly in front of him … I don’t even remember seeing the truck because in reality I was IN the rd. easing along up to make a left hand turn … my already working flashers went from flash to “turn left” …. I have proof that I delivered my last box a good distance back and was not off the rd. and made a direct turn in front of him… the driver that came to pick up all my mail and resort it knows which box he had to resume delivery at and it’s the one I said I was at not several boxes on up the road where the truck driver says I was…. the reason I don’t remember seeing him is .. I think…. he was flying along that road coming up behind me … he saw my flashers on and never realized they went from “flash” to “left turn”… he was planning to not slow down much and just veer around me when I began my left turn and in an instant he hit the back left side of my truck ….. they are also claiming that I already had arthritis and my spinal injuries would have occurred any way but the Neurologist that did the surgery stands firm that the accident caused my injuries…. one orthopedic Dr. that I saw in the beginning claimed when I first went to him that I was exaggerating my injuries for financial gain ( of course they are using that)… BUT … this same Dr. wound up referring me to the neurologist because he decided there really was something going on and then he ended up ASSISTING on the surgery that in the beginning he had stated was not necessary. The Truck driver has a million dollor policy & when we went to mediation they insulted me by offering no more than $40,000.00 to my figure of $750,000.00 … at mediation the opposing attorney discovered facts on my side he did not know about and called the meeting off until he got his facts straight… my attorney seems to be pushing me to settle around $200,000.00 if we could ever get them to that point… out of that I would get less than $60,000.00 in my pocket… He even kind of got on edge when I said I would not take that because the accident was not my fault and my quality of life was ruined (permantly disabled) because of what happened… he keeps saying but if you go to court do you realize you could get nothing? … he says it’s a total gamble and we can never predict what a jury will do… on the other hand I am adamant that the truth is proved on my side & I am willing to take my chances in court… this has driven me to tears as I stand my ground .. when I found your site I saw a way to get an unbiased opinion … Am I right to stand firm on going to court? I know this is long but I had to give you all the details to give you a fair shake at answering …. thank you … Rhonda

    • fl_litig8r says:

      Without any unbiased evidence as to how the accident occurred, this case sounds like it would be a total crap shoot at trial. I don’t know if an accident reconstructionist (an expert who specializes in determining how accidents happened after the fact) would be helpful, or if one would be able to render an opinion so long after the accident without access to the freshly damaged vehicles. Your ortho certainly didn’t help your credibility by claiming that you were exaggerating symptoms, even if he has retreated somewhat from that position since involving the neurologist. I know that you feel strongly about pursuing this because you were not at fault, but it really boils down to what can be proven at trial. Because the burden of proof is on you, a jury that can’t decide who is telling the truth will have to find for the defendant. Some juries try to solve problems like this by reaching a “compromise verdict”, finding both parties at fault (and likely cutting your damages in half, or worse).

      Add to this the fact that you have liens from workers comp, disability and medicare that you’ll have to pay back, and it does not bode well for a happy outcome unless you have everything go your way at trial (full liability assigned to the defendant and full damages awarded). I can see why your lawyer is pushing for a settlement, as the more money he spends taking the case to trial, the smaller your ultimate recovery will be (costs, which reduce your recovery dollar for dollar, really start to add up if you go to trial), and the larger the loss he faces personally should you lose.

      I think you’re going to be unhappy with any result other than a complete win at trial. Unfortunately, the odds of that happening in a disputed liability case seem small, through no fault of your own. So, if you’re likely to be unhappy with the outcome anyway, you might as well be unhappy with some guaranteed money in your pocket, if you can reach a reasonable settlement amount ($200,000.00 in a “he said/she said” case doesn’t sound too bad). If your lawyer can negotiate down your liens (which won’t be particularly easy with federal lienholders) maybe your share will be higher than you expect.

      If you decide to pursue settlement, and the negotiations approach what your lawyer suggests you take, you might benefit from my $10 tip. If you don’t want it, or if you choose to go to trial, you won’t hurt my feelings. Be aware, though, that if you choose to press forward to trial, your lawyer may decide that the risk is simply not worth it and may choose to withdraw, rather than risk any more of his own money. Some lawyers who think their clients are taking too big a risk in going to trial will ask for the client to bear the up-front costs going forward (which could easily be thousands of dollars), so prepare for this possibility as well.

  24. Jonathan says:

    I was rear ended around a month ago while driving home from my office. The lady hit me at 40 mph without braking and i was at a complete stop in traffic. I did not hit anybody in front of me. I think she was texting. She had full coverage. The insurance company is taking 100 percent liability. My nice little SUV was totaled and I suffered whiplash. I have been in PT six times now and I am going twice a week. I also have been getting bad headaches and cant sleep at night. I work out, so the worst part is I cant weight lifts now and I am gaining weight. The settlement was for the SUV was fair but not enough to buy anything except a piece of junk. It was a 2002, but in perfect condition. I don’t have an attorney and they offered me a settlement of 1,000 so far. I need the extra money for pain and suffering to buy a decent car so I am ready to settle within a couple of weeks. My neck is feeling better, so the PT is working. I think a fair amount would be 50,000, time off work and medical bills. I may directly approach the insurance company with this settlement next week, but if I get no settlement then I am prepared to get an attorney. Thank You for your help!

    • fl_litig8r says:

      I think you’re probably shooting too high at $50,000.00 for a non-surgical case, especially if you’re demanding payment of medical bills and wage loss on top of that. Prepare for some disappointment at their counter-offer. You may want to check out my three articles on settling your own case before sending out your offer.

      • Jonathan says:

        Yes, they sent me a letter back basically mocking me for asking for that fair amount. They want more info and I sent them all the information and the cost of all my medical bills, miledge, loss wages and doctors visits. They have everything so I am waiting to see what they come back with. I live in a high rent area in California and I have known other people getting that amount and didn’t have as much pain as I went through.

        • fl_litig8r says:

          Everyone’s case is different (and insurers don’t all operate the same way), so don’t gauge your progress or likelihood of settlement by stories from other people in your area.

          • Jonathan says:

            Got their offer for half my wages, and 1,950 for pain and suffering. Asked for 50,000 and got a offer for 1,950. I am talking again, but I think it is time to get a lawyer.

          • fl_litig8r says:

            I would think so. Just don’t take offense if he doesn’t think your case is worth $50,000.00.

  25. Marcus says:

    Hi! I’m about to reach a personal injury settlement in the state of Florida, I want to know if personal compensation (lost of wage, pain and suffering) are taxable and are there any chance that a collection agencies take money for my settlement to solve past debts. What can I do to protect my personal injury settlement money? … Thank you Very much for your help! 

    • fl_litig8r says:

      Recoveries from personal injury lawsuits are not taxable. As to your question about collection agencies, they have no power to take your money unless they sue you and get a judgment first. After that, they can execute it against any money you have, including money you received through a personal injury suit. A good way to protect your money from creditors in Florida is to put it into your primary residence, as the homestead exemption prevents unsecured creditors from levying against your home, no matter how much it is worth (there is a size restriction, in acreage, but most people don’t come near that). Of course, transfers of money which take place within a certain amount of time before bankruptcy can be set aside (reversed), so you really should consult with a bankruptcy lawyer about protecting your assets (even if you don’t intend on filing for bankruptcy).

      • Johnathan says:

        Yes they have everything they need. I gave it to them late last week. Do I call them or wait. Will they send a letter with a settlement offer or do they call. If I disagree with their offer what do i do next. They said they will put the figures into a computer program called Colossus and it spits a figure out.

        • fl_litig8r says:

          I’d wait a little longer, like another week. I can’t say whether their next offer will be by phone or in writing. It happens both ways. I’m kind of surprised that the adjuster told you about Colossus. While it’s not a secret among lawyers, most lay people are unaware of it — and I doubt that most people would agree with its evaluation of cases, seeing that it has no way to fairly evaluate non-economic damages on an individualized basis.

          If you disagree with their offer, you need to determine from the increase in their offer whether further negotiations might get you to an amount you can accept (keeping in mind that I think your original number was way too high as a final settlement goal). If they’ve moved a decent amount, you could try to negotiate further. If not, then it’s time to hire a lawyer. Without the threat of you filing a lawsuit, the insurer has little incentive to give you what you think is fair.

  26. Raymond says:

    Hello, it’s Raymond again and I have another question in regards to the summary disposition. After we filed a response to the motion and referenced the new deposition taken from my surgeon the defense lawyer has answered by saying it is hearsay and therefore not admissible. He states because the deposition was for workers comp. and in a separate proceeding with other parties that it is classic hearsay. Is this possible or am I being paranoid to worry about it? My lawyer says he is just trying anything he can to drag it out. I researched the definition of “hearsay” and I don’t see how a deposition taken in front of a court reporter can be hearsay. Your opinion would be greatly appreciated.

    The motion will be argued in front of the judge in a couple weeks.

    • fl_litig8r says:

      The defense lawyer is full of it. Courts routinely rely on hearsay-type evidence in the form of affidavits when ruling on summary judgment motions. For summary judgment purposes, one-sided sworn statements (such as affidavits and your doctor’s deposition from another case) can be used because they are not technically being offered to prove the truth of the matter asserted — they are being used to show what a potential witness will say at trial to show whether there is a genuine issue of disputed fact which would allow or preclude summary judgment.

      Now, the defense lawyer would have a point if this deposition were being introduced at trial, as he did not have the opportunity to cross-examine the witness making the statement (it doesn’t matter that some other unrelated lawyer did). This is really the basis for his objection. He could perhaps try to delay the summary judgment hearing if he has not had an opportunity to depose this doctor himself, but only as long as it takes to conduct the deposition. If he has made no effort to schedule the doctor’s deposition, the court may refuse to delay the hearing — this would depend on how long he has known that this doctor’s testimony would be used.

      If there is hearsay inside of the deposition (e.g., the doctor testified about something someone else said, and that statement doesn’t meet a hearsay exception), then the court may refuse to consider that portion of the deposition for summary judgment purposes.

      • Raymond says:

        Ok you were right on the money, the Summary Disposition got thrown out without even having a hearing. Thanks for your reassurance, it seems to be a highly accurate.

        So my concern is, after all this we are possibly looking at a trial starting next Monday. That is to be confirmed tomorrow, and I’m sure there will be some negotiating back and forth but the defense seems to think this case is worth about $20k and my lawyer doesn’t see them moving off that number. The case evaluation came back at $160k and considering I had a 6 hour 2 level spinal fusion surgery and lost my job as a mid level manager at a major car manufacturer with an annual salary of $125k plus a bonus averaging about $10k per year plus the medical bills well exceeding $130k, how can they think this case is worth so little?

        Also I saw my Neurosurgeon’s Rehabilitation specialist yesterday as the recovery has stalled leaving me unable to work and now they want to do another MRI and EMG, I see my future lost wages as being significant. I have told my lawyer that I want to ask for $500k and possible settle for the insurance max of $300k. My question is that reasonable considering all that has happened? My former company says I owe them $40k in over payments as they paid me from the day of the accident, 3/24/11 thru July of 11′. So I have in effect lost 18 months of pay that puts it already at close to $200k alone. I know you don’t have all the facts and it’s hard to try to put a number on it but I’ve told my lawyer if they don’t seriously raise their offer to the insurance max I will happily go to trial. Is that a good idea? I have plenty of experience doing public speaking and feel I would have no problem explaining to a jury why I need this kind of money. I feel like the other driver knocked over the one domino that started all this or otherwise I’d still have my job of 25 years and be less than 4 years from retirement. That is no longer an option.

        So I guess what I need to know is are my expectations too high and should I push it to a trial or would it be better to settle for somewhere near the case evaluation number?

        Thanks for all your help,
        Raymond

        • fl_litig8r says:

          It sounds like your trial is going to be a war of experts over the causation issue. Just because the defense didn’t get summary judgment on this issue, don’t think that a jury can’t believe it. The reason the defense is offering so little is because they see you case as an “all or nothing” prospect — they don’t see you as being guaranteed to win, with the only issue being “how much”. They think they have a shot at you getting nothing (or practically nothing).

          It sounds like you want to settle for the full value of your case — which isn’t really settling at all. The only way you’ll get full value is to try the case and win. Settlement means discounting the value of your case to account for the jury possibly believing defense arguments. That’s probably why your case evaluation is so much less than what you want.

          If the defense stays at $20,000.00, then it sounds like they’re making your decision about rolling the dice an easy one. If they get anywhere near the evaluated amount, it becomes a much harder decision.

          • Raymond says:

            Hi again, well yesterday was day one of my trial. The judge was quite upset that this had not been resolved and had to go to trial, but like my lawyer told her, we have never received an offer. Any way the first thing the defense does is ask for the second deposition testimony of my surgeon be excluded because as he says it’s hearsay. My lawyer counters with this was allowed in summary disposition how can it be thrown out now. The defense lawyer says I was not notified of the deposition but he had over a month to re-depose my surgeon but chose not too. He also says its hearsay because it was taken in another case, my comp case. My lawyer points out that all of his evidence, the deposition of the IME was only available because of the same case he is using to get my surgeons deposition thrown out, again my comp case. All he did was take what my former employer paid for in their defense of the comp case and he used it. The judge again upset says, we already have enough stuff and I’m not allowing it in. What kind of ruling is that? Doesn’t her rulings have to stand up to the law? Can she just throw it out because she perceives its going to take to long? Do you know of any case law that would support our position?

            Of course the defense wants it thrown out because it directly contradicts the deposition of the IME. I have asked my lawyer to ask for a side bar and explain why this evidence is critical, is that something a judge would or should listen too? Is it grounds for appeal if she will not allow it in? It just seem so unfair to me.

            Day 2 is not until Thursday so we have some time to prepare and I value your opinion a great deal so any advise would be greatly appreciated.

          • fl_litig8r says:

            As I said in my last comment, the judge can consider many things that wouldn’t be admissible at trial, such as affidavits, when ruling on a summary judgment motion. The judge probably wasn’t wrong to exclude your doctor’s deposition from another case at trial, even though it considered it for summary judgment purposes. While the judge’s stated reasons are improper (“we have enough evidence”), the ruling seems correct and will hold up on appeal, in my opinion. If a judge makes a correct ruling for the wrong reasons, it will hold up on appeal under what’s known as the “tipsy coachman” rule.

            If your lawyer wanted to submit the doctor’s testimony at trial, he should have deposed him again in this case or called him live to testify. The ruling really goes to the opposing party’s ability to cross-examine the witness. Because it wasn’t a party to the comp case, it didn’t have that opportunity.

            While an argument could be made to exclude the IME deposition as well, it is a much weaker argument because you were a party to that case and had the full opportunity to cross-examine the witness.

            At this point, the only way I see to get your doctor’s testimony in is to call him live (though it’s unlikely that your doctor will be available on such short notice) or to ask for a continuance to depose him (which judges are loathe to do). If this is a judge trial (no jury), your lawyer may be able to ask the court to delay its ruling and to accept a new deposition from the doctor after the “trial”.

          • Raymond says:

            Ok its been a while but here is where I’m at. The trial ended with the jury awarding me a total of $150k, $75k for 2012 and the same for 2013. The defense had a hearing today to try to get the amount reduced based on no new evidence. The judge denied the motion. Afterwards the defense lawyer says he is going to appeal and that the judge told him she does not think he will win but he is going ahead with the appeal. My questions are, is there much of a chance that he can win on appeal considering there is no new evidence. In fact the only evidence not presented at trial was in my favor, my Neurosurgeon stating in the Comp deposition that there were anatomical changes to my spine that is in direct contradiction to the IME who testified there was no change. Also, my lawyer says we can get this new evidence in during the appeal trial, is that true without taking a new deposition? I sure can’t afford another $1600 an hour to get my surgeon to repeat what he said in the Comp. deposition and hope its not necessary. Last question is what can I expect the timing to be? My lawyer says another year, ugg.. does it really take that long for an appeal to be heard?

            Thanks so much,
            Ray

          • fl_litig8r says:

            Typically, the appealing party has a huge uphill battle. While an appellate court can use any grounds to uphold the judgment of the lower court, even grounds never argued at trial, the appellant (appealing party) is limited only to arguments made (and properly preserved) at the trial level. There are many procedural traps for lawyers at trial, and failing to comply with rules that seem redundant or futile (like renewing a motion for directed verdict that was already denied) can waive arguments for appeal purposes.

            In your case, I have no idea what grounds the defendant intends to raise on appeal, so I can’t speculate on its chances. It sounds like what it requested from the trial court was either a remittitur (the judge reducing the verdict because it exceeded the maximum amount supported by the evidence) or a new trial, which can be based on any number of grounds. In the case of “new evidence”, meaning evidence not discovered in time for trial, usually this won’t be grounds for a new trial unless the moving party can show that there was no way it could have reasonably discovered this evidence in a timely manner through the exercise of ordinary diligence. This is very rare.

            Most often, appeals are based on a ruling of the trial court which the appellant believes is “reversible error” (an error which effected the outcome of the case, as opposed to “harmless error”, which couldn’t have changed the outcome). This can be any number of things, such as the admission of certain evidence it objected to, or exclusion of other evidence it sought to introduce, or the wording of jury instructions. I have no idea what ruling the defendant might be contesting, or if it is challenging a finding of the jury as being “clearly erroneous” (which is very tough to do), so I can’t give you any odds.

            As to the neuro’s testimony, your lawyer would need to cross-appeal on the issue of its exclusion and basically ask for a new trial himself to get this in, so I’m not sure that you want this. To be clear about how appeals work, there is no “appeal trial” where new evidence can be introduced. For your lawyer to put the testimony of the the excluded neuro before the appellate court, he would have had to have proffered that specific testimony at the trial court. A “proffer” is a submission of evidence the trial court excluded into the court record, but outside the presence of the jury. In your case, if your lawyer wanted the neuro’s depo to have been considered, he would have had to proffer the deposition into the trial record. If he asked the court to let the neuro testify live and was denied, he would have had to proffer the neuro’s live testimony at trial — basically calling him and questioning him as a live witness while the jury was out of the courtroom. These two methods are the only ways the appellate court would ever see how the neuro would have testified, and would be necessary to preserving your argument for appeal. It’s complicated procedural stuff, but the point is that you can’t just ask the appellate court to hear testimony from your neuro that was never presented in any way to the trial court — so don’t worry about paying him to testify at the appeal. They wouldn’t allow that.

            As to the appeal taking a year, that’s probably a conservative estimate. I had a case that was so clear that the court denied oral argument (they just needed the written briefs to rule) and it still took them a little more than a year to affirm my judgment with a “Per Curiam Affirmed” decision, which is a decision that just says those three words: “Per Curiam Affirmed.” It doesn’t have any complicated discussion of the law or the facts of the case; just those three words. So if that can take a year, a case which may require oral argument and result in a detailed written decision could take much longer.

        • Raymond says:

          Hi again, we finally got the appeal brief and the basis for the appeal is that the defendant was denied summary disposition or a directed verdict and they go on at length to say that this is valid because we did not prove our case. The lawyer picks apart the trial transcript siting several instances where he says I lied, my doctors lied and we did not prove our case. Does this type of appeal have any chance? There is nothing new just asking again for a directed verdict or summary judgement that was denied at trial.

          Thanks,
          Raymod

          • fl_litig8r says:

            This type of appeal (of a denied summary judgment/directed verdict motion) after a jury has ruled in your favor seems like a real longshot. An appellate court would essentially have to find that the undisputed facts in the case would not have allowed any reasonable jury to find in your favor. Allegations that you or your doctor lied, without conclusive objective proof (not just a competing expert or lay witness giving contrary testimony), seem rather desperate. While the likely success of an appeal will boil down to details I don’t have available to review, from your thumbnail sketch and your previous posts, it doesn’t sound like the defense has much of a chance.

  27. Mark says:

    First of all, thank you so much for looking at our questions. I am sure everyone is thankful how I am. Now let me explain my case to you.

    I am in a wheelchair. This summer I had an doctors appointment; therefore, I call public transportation to pick me up in my wheelchair and take me to this doctor appointment. After the appointment was over, the wheelchair bus came too pick me up. Once they pull up to my house, the driver placed me on the wheelchair lift so I can get off the bus. Once the wheelchair lift was on the ground, he told me to go and have a nice day. Therefore, I did what he said. Here is the bad part. When I started trying to get myself off the lift (he wasn’t paying any attention to me) my entire wheelchair flip over — landing me on the ground.

    We call the 911 and I was taken to the local hospital. It was discover that I had fractures all over in my legs area. My right hip and thigh was fracture and my left tibia and ankle were fracture. This lead me to stay in the hospital for 12 days.

    ****It is also wroth mentioning that I have a bone disease that makes my bone easy to fracture. Therefore, I feel the driver should had even take extra steps in making me have a safe return back to my house. ****

    I stayed in the hospital for 12day; however, my Doctor told me that I didn’t need surgery- I was to let the fracture heal up by itself. Currently, I’m still under the doctor’s care. It’s been about 12 weeks since that faithful day this summer.

    I have hired a lawyer to fight my case and all; however, I have a question for you. How much do you believe my lawsuit will bring. As you may have guessed, the fractures have left me in bed. I honestly have a fear too get back in any type of wheelchair at the moment. I never will thing such an accident could make me fear the very thing I need in order to get around. I recently got a 4 year degree and was looking for a job. Now, I just spend my day in bed in pain still. The enjoyment out of life has been taken away from me greatly. My medical bills came too 23,000; however, my insurance paid for it. I would be very thankful, if you can give me a x amount on what you think I should get back. Like a ball park sum.

    Thank you so very much for the things you are doing. In advance, I thank you for helping me with my case.

    • fl_litig8r says:

      Your case is going to be pretty tough to evaluate. You will likely face a comparative negligence defense. I would expect the bus service to claim that you should have known it was unsafe to wheel off the ramp at the time. They will turn your argument around on you — you say that the bus driver should have known it was unsafe, so why shouldn’t you have known as well? This could play a huge role in your potential recovery.

      If you were not working at the time of the accident, it will be tough to make a wage loss claim. Trying to prove not only that you would have gotten a job, but also the amount of pay you would have received, will not be easy. Unless you actually had a pending job offer, this claim may be too speculative to generate any serious money.

      Your fear of using your wheelchair will carry more weight if you actually see a mental health expert for it. If you haven’t already, I’d suggest doing so as soon as you are able.

      Now that the bad news is covered, you should still be able to recover something for your medical bills (which you’ll need to pay back to your insurer), past and future, as well as your physical pain and suffering. Your emotional distress damages (loss of enjoyment of life) would also be recoverable, but again I’d suggest seeing a mental health expert if this is a serious issue. The emotional distress claim will also open up questioning into your enjoyment of life prior to the accident, so if you were already having issues with depression or anxiety, those will reduce the value of your claim.

      Because of the potential comparative negligence defense, however, the amounts you could recover for medical bills, pain and suffering and emotional distress could be significantly reduced — perhaps by half or more, depending on the reasons you have for not being aware of the danger (reasons which wouldn’t apply to the driver, as well). For this reason, it would be irresponsible of me to even try to ballpark what your case should settle for.

  28. Mark says:

    You really reply quickly to my question/concern. Thanks for such prompt response. I do understand where you are coming from. I think I didn’t explain my case well enough. Now if the defense of the bus service would use that type of defense, they should go back to law school. Here is the reasoning. When the lift was on the ground, the driver told me to go. I believe you think the lift had not reached the ground—which caused my wheelchair to flip. However, the lift was on the ground. It is a rule in the bus company’s handbook that states the driver of the bus must hold on to the patient’s wheelchair handle as they leave the lift. In my case, the driver didn’t do it—it was recorded on video from the bus camera and also the camera outside my condo that his hands were not on my wheelchair; however, he was looking at his phone are something of that nature. Therefore, the defense lawyers can’t come into play that it was my fault that I should have not exited the lift when I didn’t even know he wasn’t going to hold to my wheelchair. I’m not a lawyer, but that logic just seem baseless to me. I mean this is not my first time using this bus service. Every time I used their service, the driver always places their hands on my wheelchair handle, which is a part of their rule book. So it’s my theory, if they use that position, it’s trivial.

    Now, as for my job search before I got hurt, I had 3 jobs inquiring me to start working for them. It is noteworthy to state that on the day of the accident, I was coming from a doctor office from getting some blood work done which one of the job required. I graduated from college with an 4.0 gpa and was also the President of the honor society two years in a role. Consequently, before this accident, I was very outgoing and very hopeful of my future—as anyone with my success in college would be. Hence, depression nor sadness wasn’t a part of my psych.

    I’m apologetic for not fully amplifying my background information too you.  thanks.

    • fl_litig8r says:

      Given your added facts, it does seem less likely that a comparative negligence defense would succeed. I can still envision an argument being made that you should not have exited until you were sure the driver had his hands on the handles, but that seems like a much weaker argument than a scenario where you exited while the ramp was not level.

      It sounds like you should be able to make a good run at a wage loss claim, and that you shouldn’t have any pre-ex issues regarding your emotional distress claim. I’d still suggest seeing a mental health expert now to support your current level of distress (and to actually help you deal with it).

      To get a rough ballpark of your damages, just use the method I discuss in this article. Don’t forget to include future medical costs and just do your best to estimate the wages you would have received had the accident not occurred. These damages should end at the point where you are sufficiently healed to be employable again.

      I didn’t mention your pre-existing bone condition in my last comment, but just to be thorough, I will say that it should not negatively impact your damages at all. You are the typical “eggshell plaintiff”, so the defendant is responsible for all damages its negligence caused, even if they would not have occurred in a person without your medical condition.

  29. kevin dickerson says:

    Injured by 800 lbs of glass that fell on me after the straps holding them broke. witness gave deposition that similar accident occured injuring him, and how concerned they are about future accidents due to companies decision to cut cost by increasing load sizes to decrease number of deliveries. after major neck and back surgeries, dr cautions me not to expect more than 50-60% improvement. Am going into mediation this week and have no clue what to expect. Biggest fear is coming out of this not being able to provide for my family. what do you think?

    • fl_litig8r says:

      I assume you have a lawyer, so he’d know more about the specifics of your case and what it is worth than I ever will. I am a little concerned that you may not be at maximum medical improvement yet, going into this mediation — as you refer to what your doctor’s “expectations” are for your recovery. That makes it tough to put a fair value on your case, as your recovery may not go as expected. Have you had the surgeries yet, or is your doctor projecting your recovery after future surgeries? It’s not clear from your comment. If you’ve had the surgeries, then you’re in a better position to know your future medical needs and potential for recovery. If not, you have a lot of unanswered question, still.

      As to what to expect at mediation, see this article. I’m sure your own lawyer will meet you beforehand to explain the process to you, as well.

      • kevin says:

        That mediation was cancelled and rescheduled for november 1st, 2012. Having back surgery on october 25th, 2012. still having pain and discomfort from neck surgery, that along with medication, makes it difficult to have relations with wife

        • fl_litig8r says:

          That mediation date doesn’t leave a lot of time after your surgery to know how it went or how your recovery will progress. Again, I’m concerned that you’re trying to settle the case before you’ve reached MMI. It makes it very tough to figure out what your future medical needs will be, and how much future pain and suffering to expect. I’m not even sure it allows enough time to get the billing information from the back surgery. I know you’re eager to get this matter resolved, but you may want to discuss postponing the mediation until you’re more sure of what your future damages look like. I can’t really give you an estimate of what your case is worth, aside from the general advice I’ve discussed in this article. I do urge you to talk to your lawyer about how you can fairly evaluate your case so soon after having surgery.

  30. Val says:

    I am sorry of you covered this already; my eyes are fried from reading! When calculating medical expenses do I work with what was paid or what was billed. That is, the amount before insurance adjustments or after? Thanks!

  31. Kean Bean says:

    I was eating in a resturant when I began choking on my food, and when I finally brought up what was stuck in my throat it was a nice amount of plastic that scrated my throat and left me with a sore throat. Now im scared to go out to eat, how much do you think I can get for this. and by the way the resturant took full responibilty.

    • fl_litig8r says:

      Frankly, not a lot. Without a serious injury, you’d be hard pressed to find any lawyer to take this case. It would cost more to bring than you’d hope to recover. If you could get a few hundred dollars for such a claim, I’d consider that a victory.

  32. ReginaHW says:

    Good evening. I have a question regarding property damage. My family and I leased a home in January 2010 when we experienced excessive moisture in the home. The moisture turned into mold which started growing on all of our personal belongings. We took pics because the mold was so bad it was growing on the carpet, clothing, bed linen, and mattresses as well. We hired an independent lab to come in and they performed lab tests that confirmed excessive levels of aspergillus mold. We moved and started noticing our family had constant respiratory problems. Finally we contributed it to the molded belongings and threw away EVERYTHING! Clothing, mattresses, books,etc. We sent a demand letter to the landlord $4500 over 28 days ago and an additional letter two days ago and have not had a response. We’ve decided to file small claims. What do you advise? Thanks in advance!

    • fl_litig8r says:

      I think your success will depend on the landlord’s prior knowledge of the mold or moisture problem that led to the mold, along with his failure to take prompt corrective action after receiving notice. A landlord isn’t an automatically liable for a condition he was unaware of and didn’t have a fair opportunity to correct. He isn’t an insurer of your well-being or your property just because you rented his dwelling. So, I hope you have some proof that he knew there was a problem (and that he failed to correct it).

      Also, the value of your property will not be replacement value. It will be the fair market value of the property at the time it was damaged. Clothes depreciate quickly after they are worn, so don’t be surprised if he disputes the value of your claim.

      Assuming you have adequate evidence of the landlord’s prior knowledge of the problem, and you’ve valued your claim fairly, you should sue if he doesn’t respond to your demand. If your family’s respiratory problems were serious, you may want to consult a personal injury lawyer before suing on your own, as you would be entitled to recover for your physical injuries as well — suing for just the property damage will likely preclude your right to seek personal injury damages later.

      As a final note, in the future you should look into renter’s insurance, which is fairly cheap and would have paid replacement value for your belongings in this situation, regardless of the landlord’s prior knowledge of the problem.

  33. ReginaHW says:

    We located a prior tenant who moved out because of the mold issue. Also, he added a mold addendum to the lease, which we thought was out of the ordinary because we had never had one attached to a leasing agreement. He did try to correct the problem by purchasing the largest humidifier he could find. We decided to move after the mold issue because we had to empty the humidifier 7 – 10 times a day. That wasn’t feasible while running a business. When we moved he asked us to sign a release from liability form and we refused. The respiratory injuries were a significant problem. The children suffered skin infections, increased asthmatic attacks and eye and sinus infections. We had to discard all of their bedroom furniture and purchase new items. They actually went to see a pediatric immunologist. An additional question, is we file a claim for property damage we wouldn’t be able to file a claim for personal injury? Thanks for the advice on rental insurance. We did after we moved out. :)

    • fl_litig8r says:

      Sounds like you should really talk to a personal injury lawyer — definitely before you sue in small claims court. To be clear, if you sue (not make an out of court demand) for only your property damage and take the case to a judgment (win or lose), that will likely preclude you from suing for your personally injury damages. Courts don’t let people bring lawsuits in a piecemeal fashion. For example, in an automobile accident case, you can’t sue for property damage to your car, then, after that case is over, file a lawsuit for personal injuries — if you could, it would turn every lawsuit into at least 4-5 lawsuits (one for medical bills, one for pain and suffering, one for property damage, one for emotional distress, etc.). This applies only to actually filing a lawsuit. You can settle claims in a piecemeal fashion, and this happens quite frequently — as long as you don’t release the remaining claims when you settle. The legal doctrine you will most likely run afoul of when trying to sue more than once is called res judicata.

      My concern is that if you sue for just property damage in small claims court and win, you won’t later be able to sue for personal injuries. This is why I suggest talking to a personal injury lawyer first. Merely making an out-of-court demand for your property damage will not affect your ability to sue for personal injury — again, assuming you don’t sign a release that releases all claims.

  34. ReginaHW says:

    Ok, thank you. We haven’t signed ANY releases. I reviewed our caller id numbers and noted he called on yesterday evening. Thank you again.

  35. Brandon says:

    My question is related to a MVA that I was in on September 9, 2011. I rear ended a man after he pulled out in front of me where I had no room to avoid him and no time to stop. He admitted fault, his insurance company accepted fault, the police, my insurance company, myself, and witnesses stated he was at fault. I suffered from partial tears in my rotator cuff and other tendons/ligaments in my right shoulder as well as torn and severely stretched ligaments in both knees which are all requiring surgery. I am also suffering from arthritis in both knees, ankles, and my shoulder. The main question is whether I should have surgery before the settlement or not. I was told that the minimum policy limits here in Texas are $30,000 and I had UM insurance (I don’t recall the amount at this point in time). I know the surgeries are going to be expensive (from what I was told, roughly $100,000 as far as I’ve heard from my nor former lawyer), but I don’t know what the settlement amount could look like. I don’t want to dig myself into a hole that I can’t pay my way out of by having the surgery before the settlement, but I need the surgery to be able to work again. What would you recommend I do as far as surgery and dealing with the time I’ll have to wait for the settlement?

    • fl_litig8r says:

      I always tell clients to put their health first. There are pros and cons to either approach in your case. Having the surgery now eliminates arguments that you are not following doctors’ recommendations, which may result in lower damages due to failure to mitigate or claims that you inflated your own pain and suffering (if you extend your own period of pain without good reason, why should the defendant pay for that?). This may not matter if the total coverage for the accident is inadequate, as they may wind up tendering their limits regardless.

      If you have the surgery now, there is no doubt that you’ll have to deal with reimbursing your health insurer. However, you may not be able to avoid this problem even if you delay the surgery until after settlement. Some health insurers will refuse to pay for accident-related treatment after you’ve settled a lawsuit for that accident. This is not guaranteed to happen, but it could. If it does, you could be involved in a fight with the health insurer which could delay your surgery (assuming you can’t afford to pay for it out-of-pocket). If you have the surgery before the settlement, the health insurer wouldn’t have any grounds to deny coverage.

      It’s really up to you as to which risks you are willing to take. Is the money more important to you right now than having your injury treated?

  36. Mr. B says:

    I want to thank you in advance for taking the time to read/respond to this.
    I was injured 3 1/2 years ago (age 42 at the time) at work by the negligence of a contractor at an oil refinery. I tripped over an extension cord which had been plugged in an outlet and coiled into a walkway. I fell backwards and landed on the concrete resulting in multiple injuries and subsequent surgeries. I had a witness on my right within 10 feet of me who helped me untangle the cord from my legs and get up. I immediately saw where the cord eminated from so I plugged it back in and pulled the slack towards its origin, thus getting it out of the walkway. I stopped at the barricaded/taped off work zone where the cord was coming from and wrappped the slack around a pressure gauge on top of a vessel so it would no longer be on the concrete. I saw exactly where the cord was being used and which contractor had been using it (Call them contractor 1). I was dizzy and hurting so after I removed the hazard, I went directly to medical. That was the last day I have worked and after 4 major surgeries (and two more recommended) I have been deemed totally and permanently disabled by at least two doctors that I know of. I was averaging about $85,000 per year for the 5 years leading up to the accident. Here is where things get confusing. Contractor 1,who was in charge of the work/work zone had started their repair work to the tower that morning. The tower had been previously shut down and prepared for repairs by another contractor (call them contractor 2)…They simply blinded off all connecting pipes and opened the tower up for ventilation so to speak. Obviously, this is a tort case with workers comp involved too. The problem is both contractors are denying fault. Contractor 2 is stating that they had completed their work, and that they never used any extension cords. Contractor 1 is not denying working that work zone at the time of the accident, but is denying just about everything else. They are saying that the cord was not theirs and that I have comparative fault anyway. To keep things short as possible, let me just say that even though the case is considered circumstantial, I have plenty of circumstantial evidence to prove that they were in fact using that cord. (BTW they are also saying that they did not place it in that walkway either). The witness to the accident was a co-worker who was months from retirement when his deposition was taken, and for some reason was not very helpful. Anyway, I am not yet sure of the exact dollar figure in damages, but I know it is well over 2 million (maybe 3). Like I said earlier, the trial is growing near and we have not yet attempted to settle. If we do go through with any type of settlement negotiations, I would like your input on the situation. I have some excellent attorneys and the jurisdiction area is known to be plantiff oriented for the most part. Let’s say hypothetically that wc offers to waive their lein and also put up some “new money”. In addition, Contractor 2 also puts up some money just to get out before the trial. Let’s say that the total put up so far is roughly $100,000. The issue now is where does Contractor 1 stand? They will no doubt try to eliminate themselves from liability as much as possible by what I have previously mentioned. Given that the case is circumstantial, in your opinion, what would be a range of fair settlement with them?

    Thanks again!

    • fl_litig8r says:

      The fact that the case is circumstantial is not so much a concern to me as long as both potential contractors remain as defendants (the jury will have to pick one, if these are the only two contractors who could have left the cord on the walkway). I’m not sure I’d be so quick to let Contractor 2 off the hook and risk having the jury find that #2 left the cord there and #1 just started using the tool without seeing how the cord had been placed. The jury would just have to base its decision on the credibility of the testimony of the contractors’ employees. Of course, if there are any other people who could have created the hazard, you have more of a problem. Comparative fault is really going to depend on the specific facts and circumstances leading up to the fall (lighting, what you were doing/carrying when walking near the cord), as well as how “open and obvious” the cord was on the walkway, so I can’t say how viable this defense is.

      There are simply too many other variables involved — are you permanently disabled from any employment, how much are your past and expected future medicals, did you have pre-existing conditions — for me to even guess how much your case might be worth. It sounds like you trust your lawyers — don’t second-guess them without good reason. Trust their opinion on how much your case is worth. They are in a far better position to tell you than I.

      • Mr. B says:

        Let me try to be a little more helpful…Firstly, I assume that if we do talk settlement, the role of contractor 1 and 2 could be any number of combinations. However, right now it seems to me that if Contractor 1 did inherit an unsafe situation it would still be more their fault for accepting the work site as is and not double checking things. Regardless, the sum of the two Contractors contributions would have to be the bulk of the offer. As far as open and obvious goes, the cord was coiled up a few feet into a walkway. The safety supervisor for the refinery I worked for testified that it violated regulations by not being overhead. In additon, Contractor 1 testified during deposition that they did bring a number of extension cords and electrically powered tools as their equipment list verified. Coincidently, they also testified that they did not have to use any of them! The plant manager of the refinery even went so far as to say under oath that the cord in question could not have belonged to any one other than Contractor 1. Still further, the supervisor’s testimony for Contractor 1 was weak to say the least. Let’s just say that if it goes to trial my attorneys’ will eat him alive. But the question still remains…how much comparative fault is reasonable and how much to discount for the case being circumstantial? I don’t really expect dollar figures because of all the variables but perhaps percentage reductions that seem reasonable (if you have enough information to give me a range)?
        Also, I am permanently disabled from any type of employment. I have had back and neck surgery requiring fusion. I had two knee surgeries, the most recent being a total knee replacement (titanium). The only pre-existing surgery I had was a partial on same knee.
        Obviously, there exists some type of percent discount for the sum for all of this…I just wanted an idea of a fair range.
        Regardless, jury selection is set for 4 months from now. I assume we will have a demand letter ready to issue soon, but not sure. That is another thing to enlighten me on…please. If we are sending a demand letter, how close to the trial are they normally sent out? Is it prudent to even send one out? What about a time frame for a possible settlement mediation if needed?

        Thank you so much!

        • fl_litig8r says:

          I really wouldn’t discount the value of the case due to the fact that it’s circumstantial. Someone put that extension cord there, and it sounds like you’ve sued the only two possibilities. As to possible comparative fault, that’s a really fact-specific issue due to some hazards being more obvious than others. If this walkway was brightly lit and not surrounded by distracting activities that would draw one’s eye, it’s a lot more obvious than if it was dark and surrounded by things you would think someone would look at (like a grocery store aisle where you would expect that people would be looking at items on the shelf instead of the floor). This really isn’t something I can even ballpark without pictures of the scene, an idea of how many others walked over the cord without tripping before you (and whether they will say it was obvious), and lots of other specific information. Let me be clear that I’m not asking for these things. I really only like to stick my nose in if someone’s lawyer isn’t being communicative, may be acting deceptive, or if it’s a general question I can answer so you don’t have to bother him. As I said before, it sounds like you like your lawyers. Why ask me for an opinion when you should be asking them? I’m not trying to chide you. I’m just letting you know that I don’t feel comfortable sticking my nose into an attorney-client situation that seems to be working already.

          As to your other questions, are you saying you haven’t made any settlement demands on these defendants yet, with trial 4 months away? In normal personal injury cases, demands are sent out before suit is even filed just to see if the cost of a lawsuit can be avoided. I’d definitely think that mediation would be a good idea, unless your lawyers have information indicating that the defendants have no intention of settling. Mediation is most productive any time after the main depositions in the case have been taken, but it can be done at any time. Given how close your trial date is, I’d say the sooner the better, just to avoid all the work and expense that accrues as the sides gear up for trial. After all that effort is put in and the money spent, there’s less incentive to settle on both sides.

          • Mr. B says:

            Thank you very much for your time. As I am sure others on here would agree, having someone knowledgeable to talk to helps keep us from going mad. I do have full confidence in my attorneys, but they are very busy so I try not to bother them too much. You are correct, we have not made any demands and the case is set first fixing in earrly March. My attorneys (as do I) have confidence in our case, but from what I understand, you never want to go to trial without at least attempting settlement. That is why I asked for your opinion on things. I have read many things you have said on here, and I can tell you are an intelligent person. Thanks for your input…I will keep you posted!

  37. Mr. B says:

    Mr. Litig8r,

    I just received a second request for interrogatories from Contractor 1. They are asking both me and wc to answer some questions. The last time I answered those was summer of 2009. I am wondering if there is anything that can be inferred from what they are asking? They are only asking me one question (but parts a-f). Parts a-d are all about whether or not I am on SSDI, when did I apply and get awarded, and if I was rejected during the process. Part e and f both ask me about kidney disease…Do I have any form of kidney disease, and do I have end stage renal failure?
    This sounds very strange to me. The questions they are asking wc are all related to how much they spent on me and my treatment, have they attempted to settle with me, and whether or not they have any video or photos of me.
    The deadline for all depos etc is about 7 weeks away and the trial is in a few months. Can I get your feelings on this please?

    thank you sir!

    • fl_litig8r says:

      It sounds like they are looking for pre-existing conditions or other illnesses which might have caused you to become disabled from employment even if the accident had not occurred, which would help them limit your wage loss claim. Obviously, something makes them think that you have kidney disease — if they’re wrong, just say you don’t have it.

      As to the information requested from the comp carrier, it sounds like they’re just looking for subrogation information (to help them calculate their own damages exposure) and surveillance information.

      • Mr. B says:

        The only thing that I can think of is when I did the blood work prior to my last surgery I was told that the kidney function was showing abnormal reading. However, it was not enough to prevent me from having the surgery. They simply told me about it and said that I might want to follow up on it later…That was in March and I still have not followed up on it…Do you think that is what this is all about? If so, is it something I should be concerned about as far as my case goes?

        Thank you!

        • fl_litig8r says:

          That’s almost certainly what prompted their questions. Whether it’s something to worry about depends on how serious your doctor says it is. Obviously, it wasn’t bad enough to prevent your surgery, and his recommendation to follow up on it didn’t sound very urgent, so it may not have any effect on your case.

          • Mr. B says:

            Mr. Litig8r,

            I just got a call from my attorney’s office to set up a meeting with a vocational rehab expert who has been hired by the defense. I suspect this is normal, but can you tell me if this is any indication of the strength of their case…would they hire one if they thought they had a solid case?

            Thanks.

          • fl_litig8r says:

            You can’t really read too much into this. If they plan on challenging your wage loss claim (ability to work, how much you can earn) hiring a voc rehab expert is a good way to do that. It doesn’t mean their case is weak or strong. Of course, the more money they spend on defending the case in hiring experts such as him could be interpreted as their willingness to fight. That doesn’t mean they won’t still want to settle, though. Don’t spin your wheels about they think. It will just drive you crazy. The only real indication of how they feel about your case is how much they’re willing to pay to settle it.

  38. Fred says:

    My 12 year old son was hit by a SUV and suffered a broken leg. He was in the hospital that day and the next, going home early on the third day. His mother and I both did not work those 3 days, well actually my wife was working on the first day until I informed her of the accident, but left early. I work full time on salary from home, my wife works part time. Are we on solid ground requesting the 3 days pay for both of us? If only one of us should be compensated for lost work, can we demand the higher amount? Or should we assume neither of us will be compensated for missing work? We also had to rent some cars to get him to school. When he returned after 3 weeks, he was still in a wheelchair and full leg cast. We have a 2008 car that my wife uses to go to work and also a 1976 two seater convertible which we cannot even lock the doors. Fun car, but not very practical; the only time my wife ever took it to work, someone broke the glovebox (which wasn’t even locked). So we rented cars until my son was put into a half cast and could get into the two seater (4 weeks). Should we anticipate resistance from at fault driver’s insurance towards paying for these rentals?

    And this is not really a damages question, but I didn’t see an article relevant to a juvenile injury. Our auto insurer (we have UM/UIM), told us that a judge would need to sign off on any settlement (Wisconsin). Do you think this helps us in negotiations even though we have not hired a lawyer? Will my son be required to talk to the adjuster or testify in court? Assuming there is some pain and suffering award do we need to have any plans in place prior to settlement for the proceeds? It will be saved for college, but I’m not sure if it is good if he knows at his age that he has $50k or even much more, waiting for him to turn 18. He is actually pretty good and saves so much of his allowance that there have been times when he has more money in his checking account than we do, but that is a lot of money.

    • fl_litig8r says:

      Whether you can recover for yours or your wife’s lost wages is going to depend on your specific state’s caselaw, and it may even be an unresolved issue in your state. While all states will allow parents to recover for the medical expenses they incur on behalf on an injured child, it’s not so clear when it comes to other expenses they incur, such as wage loss. For an idea of how complex this issue can get, see this case from Illinois, in which the court ultimately held that while the parent’s wage loss was not recoverable, the reasonable cost of caretaking services for the child during his recovery would be — even if that caretaking was provided by a parent who stayed home from work. The court basically held that the cost of such services were more predictable (and therefore fairly foreseeable to the defendant) than each individual parent’s lost wages. Note that this case was decided in 2004, at which time this issue had still not been resolved in Illinois.

      The issue with your rental cars will fall into the same category as your wage claim. I doubt that you’d be awarded the cost of two rental cars, even if you make that case that reimbursement is appropriate. You will definitely receive resistance from the liability insurer on this claim.

      Whether you need court approval often depends on the amount of the settlement. There is very likely a state statute setting the amount which triggers the need for court approval of a minor’s settlement. These can be very complicated, as they often address both the gross and net (after attorney’s fees, costs, and liens) settlement amounts. I don’t think that the fact that your case requires court approval will get you any more money — the judge isn’t going to act as your advocate. If the insurer isn’t going to pay for an attorney to obtain court approval and possibly even set up a trust (sometimes they will), I doubt that you’ll be able to do it on your own.

      Whether your son can/will testify will depend on his age and your state’s specific rules about testimony of minors. Some children are too young to take an oath, and you may need to establish his understanding between a lie and a truth (through questioning) before he’d be allow to testify (if at all). He does not need to speak with the third party insurer’s adjuster. For that matter, you don’t, either — though it would be impossible to settle if you didn’t.

      As far as holding his money, you should be able to cheaply set up a bank account according to your state’s version of the Uniform Transfers to Minors Act (UTMA). This account will hold the money until he reaches majority age.

      • Fred says:

        I don’t think that the fact that your case requires court approval will get you any more money — the judge isn’t going to act as your advocate.

        I would have thought the whole point of requiring a judge’s approval for settlement would be that the judge would act in the minor’s interest. Not necessarily that the court would get involved in negotiation or a judgement without trial. But if they can see through a ploy by the insurance company that resulted in an unfair settlement, wouldn’t they be obligated to refuse the settlement? Otherwise what is the point? Then again, I guess I could decide to not even pursue compensation from the driver and my son would have no recourse. Obviously, I’m not going to do that, but is that really a possibility? Since if I can do that, then it makes sense that the state has no obligation to act in my son’s interest, but I wonder again what is the reason a judge needs to be involved?

        If the insurer isn’t going to pay for an attorney to obtain court approval and possibly even set up a trust (sometimes they will), I doubt that you’ll be able to do it on your own.

        If we got to the point that a settlement was possible without an attorney doing the negotiating. I should be able to find a lawyer to handle this paperwork for a small fraction of a $30k-70k fee, right?

        • fl_litig8r says:

          The point of the judge approving the settlement is largely to protect the child’s money from his parents or guardians. While the court would not approve a settlement which is clearly deficient, it will afford a great deal of latitude to the parties to negotiate their own amount. So, I wouldn’t say it would protect you from a settlement which is merely “unfair”, but rather that it would protect you from one which is grossly inadequate. I assumed that you wouldn’t consider an offer which is grossly inadequate, which is why I said I don’t think the court’s involvement is going to help you get more money.

          As to the attorney needed to file the paperwork for court approval, I would really push to have the insurer pay for this as part of the settlement. If they won’t budge, you’d hire a lawyer (usually a probate lawyer) on an hourly rate or flat fee to handle the filing. Fees for this can vary, depending on location, but don’t be surprised if it costs in the range of $5,000.00.

  39. eddie76 says:

    im a little worry now. i had a slip and fall inside walmart, due to their water refilling machine was leaking all over the floor. wearing new boots and not rushing, i slipped and fell. the store called for an ambulance, and transported me to the ER. MRI stated a pattelar tendon repture. then the hardship really kick in, due to walking away from just making an arena football team, placing by business traveling on hold, and putting all the finacial weight on my wife. With in 8 months 2 surgery was proformed due to the accident, one the realignment of the knee, then 7 months later the doctor had to go back in to remove the hardware they put in from the first surgery, cause it was causing tissue damage and fluid build up. i use a legal funding firm to spot me some cash to buy myself time to heal and caught up with bills, but the funding was a small amount due to how early the case was. i lost my how, and tried to ignore the swelling pain and went job hunting. the jobs lasted 2-3 days cause i physically couldnt do the labor ” they noticed the strainnig and gruntting” i worried that walmart insurence coverage is going to use technicality to screw me over and laugh all the way to the bank. im feeling stuck and wont my life back in order, cause im lossing my family, life and mind.

    • fl_litig8r says:

      Did you hire a lawyer? I really wouldn’t recommend trying to handle a case which is this involved, particularly against Wal-Mart, on your own. Exactly what kind of technicality are you worried about? And were you a customer or employee of Wal-Mart at the time of the fall?

  40. eddie76 says:

    i hired an attorny, and during the time of the accident, i was a customer shopping. im worried about what walmart insurance coverang will pay out. my marriage is on thin edge due to finances, i lost a number of jobs, a football career, and watch my business go inactive cause of walmart. im reading a number of cases where walmart screw over people due to what their insurence coverage will cover. i also feel like my lawyer isnt gonna put up to much of a fight.

    • fl_litig8r says:

      Well, you don’t really have to worry about insurance coverage with Wal-Mart, as they are self-insured (they pay from their own pockets). However, Wal-Mart is notorious for litigating even the most legitimate claims, so don’t expect a quick settlement. That’s probably why your lawyer may be less than thrilled at the prospect of suing Wal-Mart (and why Wal-Mart employs its scorched earth policy to all claims, regardless of their individual merit). A plaintiff’s lawyer has set up a website with lots of information about suing Wal-Mart, mainly for other plaintiff’s lawyers who want to sue Wal-Mart, and I suggest you check it out. You may want to send a link to your lawyer, as he may never have heard of it (I hadn’t until recently) — I’ve never used it, myself, so I can’t vouch for the quality of any non-free information. I am not affiliated with nor do I make any money from that site (so don’t buy anything on my account ;) ).

  41. Johnathan says:

    Finally settled for 6,200. 1800 to medical so I got the rest. Nice to have it over, but not what I wanted.

  42. nina says:

    I would like to Know if Possible how much u wud think my case is worth . I went to a concert and a bracket out the ceiling fell and hit me on the head 100ft up in the air at 54 miles an hr , like as if a professional baseball player threw a fast ball directly at my head ? how much u think its worth ?

    • fl_litig8r says:

      Read the article. You haven’t said a thing about the nature of your injury or the amount of your medical bills or lost wages. Use those amounts to get a rough idea of how much your case is worth as described in the article.

  43. Mo says:

    I have a question about my case whether the amount settled is fair ?I know if u ask me I will say that is an insult to me. In march I was in an accident where the driver passed a stop sign and I had a direct impact with the driver’s car. From this accident I had back problems and up to date I still feel pains in my back . Because going to the Chiropractor was interfering with work, i stopped going and told him that i was fine but technically i still have minor back pains up to date I do.
    Because the other insurance refused to accept responsibility I had to involve a lawyer and I used my insurance to claim the damages. Damages to my car was over 29k, it was totaled and I was paid by my insurance company. In October this yr I got a refund check for my deductible from my insurance and when i called them and asked why i was receiving that I was told they went after the other insurance and they were found at fault.

    Now my lawyer and the other insurance.
    My medical bills
    My hospital bills came up to $1574 but I use my personal insurance and I paid $150 and the insurance paid the rest
    Chiropractor came $2229 which wasn’t paid.

    My lawyer called me the other day and told me that the most the insurance will settled is $5400.00 and out of this $5400 they get 1/3 and pay the chiro bills and the rest goes into my pocket. Because what will go into my pocket will be too low they applied a lien disbursement which would put more money in my pocket which would make me receive $1800 instead. For some one that makes $2k a week this sounds more like an insult to me than a compensation for my suffering and pain. I wanted some one’s opinion on this since I have no clue how these things work.

    • fl_litig8r says:

      I wouldn’t really call that an insulting offer for a soft tissue case with fairly minimal medical treatment (and possibly disputed liability, despite how the property damage claim was resolved). It certainly didn’t help that you told your chiropractor that you were fine, regardless of your reasons. The bottom line is that both your lawyer and the insurer know that if this case proceeds to litigation and possibly even trial, the increased attorney’s fees (often fees will increase to 40% after a lawsuit is initiated) and costs, such as depositions and expert witnesses, will probably result in you getting equal to or less than what you’re being promised now. If you do get more, it probably wouldn’t be so much more as to justify the wait and your lawyer’s time in pursuing it — he’d probably drop your case rather than take it to trial. Juries don’t give out big awards in soft tissue cases, no matter how convincing you might think your testimony will be about your pain and suffering. Having most of your care through a chiropractor won’t help matters, either, as insurers (and most lawyers, to be honest) don’t put a lot of stock in their opinions.

      One concern I have is the math involved in your share of the settlement. Has your lawyer accounted for reimbursement of your health insurer? I’d want to make sure that was handled (or explained as to why you don’t need to reimburse it) before agreeing to a settlement amount. I’m assuming that the chiropractor is reducing his lien, but again, you need to be sure. See a proposed distribution which accounts for fees, costs and liens (as best as they can be estimated now) before agreeing to a gross settlement amount.

      • Mo says:

        My lawyer has not accounted for the whole amount of the medical bill paid by my health insurer. He told me that insurance companies are only liable for my out of pocket expenses. In that case they said my out of pocket expenses were $150 instead of $1574. I also see something wrong with that because I pay medical insurance out of pocket. It is not employer provided. So i see no reason why they are not liable for paying all that amount.

        Thanks very much by the way your advise is starting to sync in a lot more than i understood things b4

        • fl_litig8r says:

          If your state has what’s known as an anti-subrogation statute that applies to health insurers, then you wouldn’t have to pay a non-employer-provided health insurer back. So, because you obtained your own private health insurance, there’s a good chance that you owe your health insurer nothing. I’d confirm this with your lawyer (whether your state has such a statute), though.

  44. RHW says:

    I have a concern. A few months ago you informed me regarding a landlord issue for property/personal injury settlement. You informed me that if I went to court regarding the property damage that the property damage civil suit may preclude my personal injury claim. This is my question: The landlord’s insurance company is going to settle the property damage claim. My husband and I have decided to proceed with personal injury for mold exposure in a home we rented. Should we forfeit the property damage claim/settlement and just proceed with property/personal injury claim together? Thanks in advance RHW

    • fl_litig8r says:

      You can settle the property damage claim separately from the personal injury claim. You just need to be sure that this is understood (that the settlement is only for property damage) and that any release you sign does not release the personal injury claim as well (such as if it purports to release “any and all claims”). I was more concerned over you actually filing suit because then a doctrine known as “res judicata” might have precluded you from bringing any claims that could have been brought in the original lawsuit. This doctrine doesn’t apply to settlements.

  45. parkrch5 says:

    Hi,
    I have a quick question. To make a long story, Two weeks ago a detective came
    to my home where I for lived for 15 years. The detective knocks on my door. My daughter answered, He asked my daughter if I have an illegal gun in my house. My daughter said no. When I called the detective and asked him why he came to my home, he said that a neighbor who moved a year ago saw me with a gun outside my home and due to the Sandy shooting and having a 14 year old son another person who lives 3 blocks away, felt I should be checked out based on the neighbor who moved. I feel my civil right where violated. When I ask the detective who made the charge, he refused to give me a name or address and said it was not on the report. How can I proceed to get to the bottom of this allegation? I’m concern for my kid’s safety
    Thanks in advance

    • fl_litig8r says:

      It’s not a civil rights violation for an officer to just ask you (or your daughter) a question, especially if the officer had received a complaint (even if he hadn’t received a complaint, he’s free to ask a question). As to discovering the identity of the complainant, that would depend on your state’s public records laws. Some, like Florida, make the majority of police files open for public inspection after a case is closed (or inactive for a certain period such that it is presumed closed). Of course, this would depend on whether the complainant identified himself or did so anonymously (which does happen).

      As to a potential claim for malicious prosecution against the person who complained (you can’t file a civil rights complaint against a non-governmental entity, but a malicious prosecution tort claim is possible), these types of claims are very difficult to prove, as they require more than just proving that the person complaining was in error. Also, private individuals almost never have any insurance to cover such claims, making any recovery (and therefore, the retaining of a lawyer to take such a case) unlikely.

  46. shakema pope says:

    hi my name is kema and i live in the new york area i just wanted to ask a question.I went to see my doctor but, my doctor was not in i seen the doctor that was covering for him so i goes in and tells him that i have a large mass on top of my c- section i had back in “06 he looks at it and refer me to the surgeon before i left his office i ask him am i being admitted and he said no they just going to cut a little opening and drain it so i get to the surgeon office he takes the referral and says to me i cant do this here we need to be in at the hospital he gave me a prescription to go and get admitted so then i get there they put me on the iv and did a chest x ray he did my surgery the next day which was on june 20 2012 after i had my surgery he came and told me that everthing is ok i had to remove some scar tissue they thought it was cellulitis and it was not its endometriosis the pain got worse since the surgery should i look into a medical malpractice for this the shots i take for this coast 3000 a shot and i have to take it every month

    • fl_litig8r says:

      I’m not sure what you assume was the malpractice: the failure to initially diagnose the endometriosis, or the pain that’s now present since the subsequent treatment to remove the affected tissue? Generally, even without treatment endometriosis can be painful, especially during menstruation when the affected tissue swells and sometimes bleeds. From my own brief research on the subject, apparently endometriosis caused by a c-section is not uncommon, though it is rarely discussed. Unfortunately, it may require surgery to remove large portions of tissue (sometimes enough to require skin grafts). It may be that your doctor attempted to remove a smaller section of tissue to try to avoid the need for a graft, but unfortunately didn’t get it all. Have you finished your treatment? What does your treating doctor say now that you have increased pain? Medical malpractice is a tricky area, as sometimes a bad outcome to a treatment is not the doctor’s fault. The only way to know for sure is to find out what kind of treatment you need now (maybe from another doctor) to correct the pain, and then discuss your situation with a med mal lawyer. One other possible avenue to explore is whether the C-Section itself was mishandled, resulting in the endometriosis. It may not be too late to sue for this (assuming there was malpractice during the C-Section) if you only discovered the endometriosis in June of last year — unfortunately, this condition can be dormant for years, preventing you from immediately discovering the injury.

      One major consideration in any med mal case is the value of the claim. Med mal cases are very expensive, and often require thousand of dollars to be spent on experts before you can even file a lawsuit (many states require that you get an affidavit from another doctor confirming that malpractice occurred before you are allowed to file suit). You should try to get a rough idea of how much your future care for this condition will ultimately cost. How many shots will you need and for how long? Will you need future surgery to remove more tissue? Getting an idea of how much this will cost in advance may help you retain a lawyer (or at least get him interested enough to investigate whether malpractice occurred).

      I think you should try contacting some med mal lawyers, though you may have more luck with them if you first get some of the information I mentioned.

  47. its me says:

    a piece of equipment i was using broke shifting alot of weight in a hurry , my reaction was to attempt to keep from the product hitting the floor,it all happen so fast ,anyway there was no way i was going to stop that much weight shifting.my supervisor was 6ft away and came right over i showed her the wheel that had bent under the equipment causing everything.then another supervisor came into the area and seen what had happen,none of them told me to make a report of the product lost (they made the report on the lost product)and i did’nt relize i had hurt my back so no one made a accident report,the next day when i woke up i knew instantly why i felt like i was hit in the back with a ballbat.So i had to call in and lat them know what had happen the night before and had taken asprin to releave it.it never improved and i had tocall back and tell them i was going to hospital.the nurse said since i did;nt make the report the night before i took the ball in my own hand and do what i thought was nessy.,my probation time ran out while i was in hospital ,itried to go back after doctor relesed me. first aid and head of h.r. said i could’nt work.i had to go to hospital from there parking lot.they called next day and a person in the H.R. office said i went over there point system and was terminated.Is that concidered wrong-ful termination.then they called me in for a meeting,the head of H.R. was there and someone who i thought was a attry.

    • fl_litig8r says:

      If you were fired in retaliation for filing (or trying to file) a workers compensation case, then you likely have a case. You should call some local workers compensation lawyers to discuss it.

  48. help! says:

    i am currently experiencing trouble with a employer named IAM INC, the owner randall goins is notorious for not paying his employees, and i shouldve known better, his company has not paid me, and IAM has terminated me, due to the fact that i asked for my paycheck. the reason why i asked for my paycheck is, because they are late, not by a couple days but try 19 days. i have filed a claim with L&I today and now that i have claimed with them i know i cannot sue, but is there anything else i could do, to be compensated quicker? is my compensation be only for my wages?

  49. DeAnna says:

    last week my sons fiance’ went in for a simple procedure. A d&c and a pollop removal. When the surgeon came into the OR he did not read the chart. He performed an endometrial ablation. This is a surgery done in place of a hysterectomy. She can never have her own children. She is 25 and had every intention of having 3 children. The doctor has admitted his mistake and is remorseful. We now have several attorneys kicking the door down for us to hire them. How can I control their fees and how can I be sure to not get a slimey attorney? Any idea what the settlement might be? I really think this is going to be overwhelming. We are already devasted.
    Any help you offer would be greatly appreciated.

    • fl_litig8r says:

      Controlling their fees is easier said than done. In many areas, all lawyers charge the same contingency fees and are unwilling to negotiate that rate. In fact, if a lawyer is willing to cut his rate to get your business, that may be a sign that you don’t want to go with him, as you often get what you pay for. I don’t know how you would determine who is “slimey”, but I did write an article suggesting two questions that could help you in making your selection.

      Because this is a medical malpractice case, you should ask up front if yours is one of the many states that have medical malpractice damages caps. These caps are usually only applied to non-economic damages (such as emotional distress and pain and suffering), but because this is a case where the non-economic damages will likely far exceed the economic damages, it is very important. Some states have caps as low as $250,000.00, so that could be a serious problem.

      This is one of those types of cases where the basic rule of thumb I discuss in this article of applying some multiple to your medical bills to arrive at the non-economic damages won’t apply. I imagine that any medical bills she may have incurred as a result of the malpractice won’t compare to the emotional distress of not being able to carry her own child. The only real way to estimate how much such a case is worth in your area is to reference outcomes in similar cases, using local jury verdict reporters (books that, unfortunately, usually only lawyers will have — I know of no free online resource for this). Again, these amounts may be affected by a damages cap, so be prepared for that possibility.

      If your son’s fiancee hasn’t already, I’d suggest that she start seeing a psychologist or psychiatrist. Not only is she likely in need of counseling after suffering such a loss, but it will help in ultimately proving the amount of emotional distress she has suffered.

  50. Gloria Lilly says:

    I was hit in a school parking lot dropping son off. I was in main road and former student hit me coming from the right parking aisle. There was a parked school bus blocking his view. He hit me going fast and then a parked car. I was checked by EMT called. A school officer arrived shortly to make a report. I had rt shoulder pain and then back pain. I thought nothing of it. Until 2 days later bad neck pain and headaches, confusion. I didn’t have a regular PCP so I looked on the internet and went to a Accident Injury not realizing it was chiropractors. They got me a room and informed me I need an attorney. I was then xrayed 12 views. The 2nd day I gave in to the attorney offer since the driver and I had the same insurance co and they said they were investigating who was at fault. The 3rd and 4th days I started asking about the billing. I was told the total bill was $1,147 for chiroprator treatment so far but they assured me that the at fault person who have to pay it. My health insurance Blue Cross Blue Shield doesn’t want to pay since it is accident related and they want the driver to pay. The 5th day the chiropractor advises I need a MRI for my neck because the xray reveals poss ligament damage. I go and find out after their van picks me up that the cost is $2625. Oh, I am panicking now, my headaches intense. I can’t think straight. What have I done. I don’t trust any of them now. The attorney they suggest is their buddy and I feel I have to continue to go there even if the times a week seems too much. They don’t listen, they just do their thing. So now I want to go to a real doctor and change chiropractor and maybe try Physical Therapy. But actually I think my MMI will be earlier than what they believe. I don’t think my case will be very much and I don’t want to owe. So i want to know if I can afford another lawyer to take over the one I just got Wednesday, 5 days ago. Or should I just try to settle with the insurance co. myself. I missed 4 days of work and I plan to go back tomorrow. My neck hurts about a 3 out of 10 (being the worse) but since you say soft tissue cases are small and I’ve already spent so much in a little time I want to stop while I can. Also the school officer when asked who was at fault, state the bus blocked both of guys views. The officer and the former student I think are friends.The other car hit was a lady with no insurance who didn’t make a fuss and was in the same ethnicity as the officer and former student. I am trying to ask my son if he can get a witness. I called the school security for the police report and he said it hadn’t been turned in yet and they had up to 10 days to do so. But I feel the chiropractor/ lawyer buddy thing is scary. I can see them running me up in the thousands of dollars. Would anyone take my case to get me even or just 1000. Any suggestions appreciated.

    • fl_litig8r says:

      The first thing you need to do is see if your fee contract with the current lawyer gives you a certain amount of time to cancel the contract. In my state of Florida, we are required to give clients the right to cancel the fee contract if they do it within 3 business days. If your state doesn’t have similar rule, you’ll probably wind up still owing the attorney a fee if you fire him or settle on your own.

      I’m a bit leery of this arrangement between your chiropractor and your lawyer, as well. While everything might be fine, these types of arrangements can be pretty shady. I’d prefer if you treated with an M.D., and had a lawyer who didn’t have such a cozy arrangement with a chiropractor.

      It’s still really early in your case, so assuming you could get out of your current fee contract, you should be able to find another lawyer. Even if you can’t, you can slow things down with the chiropractor, or stop seeing him entirely if you don’t feel any benefit from his treatments. At the very least, I’d suggest getting in to see a regular family physician (or even a “doc in a box” if you need to).

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