Mediation Advice for Personal Injury Plaintiffs

Mediation is a formal settlement conference that usually presents you with the best chance to settle your personal injury lawsuit before trial. This article will give you an overview of the mediation process and some advice on how to make the most of your mediation. Most plaintiffs are very nervous going into mediation — don’t be. There is no winner or loser at mediation. No issues affecting your lawsuit, aside from whether it settles, are decided at mediation. You will not have to “perform” at your mediation or answer questions, as you would in an IME or at a deposition. Your sole purpose at the mediation is to have the final word on whether your case settles.

Before Mediation – Meet With Your Lawyer

Most lawyers will have a face-to-face meeting with their clients prior to mediation to discuss what mediation entails and to get authority to settle your case for a certain amount. It is important that your attorney knows your “bottom line” settlement number before mediation. Sometimes he will have you sign a written authorization allowing him to accept any settlement offer at or above the amount you tell him. This is to avoid any miscommunication about how much money you will settle for before he begins negotiating at mediation.

When coming up with your settlement number, keep in mind that attorney’s fees, costs, and medical liens will have to be deducted from this amount. Your attorney should be able to provide you with fairly accurate numbers for all of these things to help you make your decision. Of course, if you just had an expensive medical treatment a day or two before your meeting, your attorney probably doesn’t have that bill yet. Keep your recent medical expenses in mind and always expect to get somewhat less than the number you project from your attorney’s calculations.

Mediation – Who Will Be There?

At a minimum in any personal injury mediation, the people who will attend will be you, your lawyer, the defendant’s lawyer, a representative from the defendant’s insurance company (called an “adjuster”), and the mediator. You may be asking, why didn’t you list the defendant? Well, in most personal injury cases, the defendant himself doesn’t control how much money is offered to settle your case. His insurance company does. The point of mediation is to get the people who hold the “final authority” to settle the case together. On the plaintiff’s side, that will always be you (yes, you, not your lawyer, hold the final authority to settle your case). On the defense side, the defendant’s insurance company almost always holds the final authority to settle by virtue of language in the insurance policy. There are some exceptions, such as medical malpractice cases, where doctors do not grant some insurance companies the ability to settle without the doctor’s consent (due to the effect that malpractice settlements can have on their medical licenses). However, in most ordinary negligence cases, such as car accidents and slip & fall incidents, the insurer has complete control over settlement negotiations.

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The defendant himself has the right to attend the mediation, regardless of whether he holds the actual purse strings. It really depends on the personality of the defendant as to whether he will assist the mediation process or be an impediment. Basically, if the defendant wants the case to settle, he can help to put pressure on his insurance company to offer enough money to settle the case. If he does not want to settle, he can be a disruptive force who just serves to make mediation more difficult. Because you have no real control over whether the defendant shows up or not, there is no point worrying about it.

What is a Mediator?

A mediator is simply another lawyer who has no connection to either party in the lawsuit and no interest in the outcome of the lawsuit. The mediator must be agreed upon by both your attorney and opposing counsel (if the attorneys can’t agree on a mediator, the court will appoint one, which neither side wants). Some lawyers are full-time mediators and no longer represent clients. Some still represent clients and can be either a plaintiffs’ or defense attorney. Don’t worry if your mediator is also a defense attorney. He is not the defense attorney on your case, and he would not last long as a mediator if he showed bias towards the defense side. Some of the best mediators I have dealt with were also defense attorneys. The role of the mediator is primarily to act as a buffer between the two parties during negotiations.

Settlement tip

Mediation – The Place

Usually, the mediation will be held at the office of the mediator. Be sure you know where this is so you don’t get lost on mediation day. You don’t want to be late. Write down the address and phone number of the mediator’s office somewhere safe so if you do get lost you can call the mediator and let him know.

Mediation – Before it Starts

If you arrive at the mediation before your attorney, it is o.k. to say hello and shake hands with the people from the defense side. Obviously, do not discuss your case. Limit your small talk as much as possible. It’s fine to talk about the weather, but don’t talk about what you did the past weekend or discuss any other activities that may come back to haunt you. The mediator’s office should have drinks (water, soda, coffeee, etc.) and some snacks. Feel free to ask for these while you wait.

Mediation – The Joint Session

After everyone arrives and is settled in, the mediation will start. The first step in a mediation is referred to as the “joint session” (or “joint caucus”). Everyone involved in the mediation will be in the same room, usually seated at a large table in a conference room. The plaintiff and plaintiff’s attorney will sit on one side of the table and the defendant’s representatives will be on the other side. The mediator will sit at the head of the table.

The mediator will open the mediation with some information about his background and qualifications and a description of the mediation process. He will usually direct most of his opening statement to you, as it is likely that you are the only person in the room who has not heard a mediator’s opening speech dozens of times. Here are the key points the mediator will likely discuss in his opening statement:

  1. Confidentiality: Everything that it said in the mediation is confidential and cannot be used in court. The defense attorney can’t cross-examine you at trial and ask “Didn’t you say at mediation . . .” However, should you reveal a new treating doctor or another witness at mediation, the defense can certainly find these people afterward and get information from them. A good rule of thumb is that while statements themselves can’t be used against you, the information in those statements may.
  2. Impartiality: The mediator does not takes sides and will not give either side legal advice about their case. The mediator’s job is not to determine a winner or loser, but merely to facilitate communication between the two sides and help the two sides reach a settlement. He may play devil’s advocate while alone with each side in an attempt to help them see the other’s point of view.
  3. Risk factors: The purpose of mediation is to allow each side to fully explore the risk factors that affect their case. This will be the only opportunity that each of the parties’ attorneys has to point out the risks facing the other side directly to the opposing party.
  4. Compromise: In order for your case to settle, each side will have to compromise. You will not get everything that you would get if you won at trial. The defendant does not expect you to walk out empty handed, either, as you would if you lost at trial. Somewhere between your “best day at trial” and your “worst day at trial” there hopefully lies a settlement figure both sides can live with. The point of mediation is to see if both sides can agree on that number. Side note: the mediator won’t tell you this, but it is often said that a good settlement is one where both sides leave unhappy.
  5. Closure: If you settle your case at mediation today, you will get your money in about a month or so, depending on medical liens which need to be resolved. If you don’t settle your case at mediation, you could wait years before you get paid, assuming that you win at all. The stress of the lawsuit will be over, and you can get on with your life.
  6. Control: At mediation, you control the outcome of your case. At trial, the jury will. Jury trials are uncertain affairs under the best of circumstances. The same case tried before two different juries can have two completely different outcomes. In fact, this has happened, when a jury verdict is overturned on appeal and a case is re-tried before a different jury. One case that I know of resulted in a multi-million dollar jury verdict at the first trial, a defense verdict in the second trial after appeal, and another multi-million dollar verdict (but not the same number as the first one) at a third trial after a second appeal. You never know what kind of jury you will get.

After the mediator is done with his opening statement, he will turn the floor over to the attorneys to give their statements, starting with the plaintiff’s attorney. Your attorney will argue your case directly to the insurance adjuster, telling him why you will win should the case go to trial and how much you expect to win. Do not think that what your attorney says during this statement is how he really feels about your case. He is painting the rosiest possible outcome to scare the defendant into offering more money. He won’t lie about your case, but he will spin it as favorably as possible. At the end of your attorney’s opening statement, he will frequently make the first settlement offer of the mediation. This number will be much higher than what you are willing to settle for, allowing plenty of room for negotiation during the mediation. Don’t get your hopes up based on his opening offer.

Settlement tip

Next, the defense attorney will make his case to you (he will speak directly to you) as to why you will lose or at least why you won’t win as much as you think you will. You will disagree with most things the defense attorney says. Nevertheless, do not speak or interrupt during his opening statement. Try not to show any reactions to anything said. Keep a good poker face. It is important that you listen during defense counsel’s statement for anything that may be untrue. It may be helpful for you to have a pen and notepad ready to write anything down that jumps out at you as being false. You can discuss this later with your attorney. The mediation is just starting at this point — there is plenty of time to straighten out the facts later.

After each attorney has given their opening statement (and possibly a little rebuttal back and forth), you will move on to the next step of the mediation, the private sessions.

Mediation – The Private Sessions

After the joint session, the parties are placed in separate rooms, where they will remain for the duration of the mediation. If your side made the first offer at mediation (which will usually be the case), the mediator will first meet with the defense side to get a counter-offer. While you are alone with your own attorney, you can discuss anything you want about defense counsel’s opening statement. Your lawyer can then use this information when the time comes to make another settlement offer. I actually handled a case where the defense had obtained medical records for a woman with the same name as my client which led them to mistakenly believe that my client had lied about never having been in a prior automobile accident. My client had never even been in the same state as the facility which supposedly provided her medical care for this accident. Needless to say, this changed the defendant’s settlement posture in the case significantly when I informed them of this.

During the private sessions, the mediator will go back and forth between rooms, relaying settlement offers and other information between the parties. This process seems simple, but will often last a very long time. Most of your time at mediation will be spent waiting for the defendant’s next settlement offer. They will almost always take longer to come up with an offer than you and your attorney. This is partly due to insurance adjusters having to call their superiors during the mediation and get authorization for certain offers. Their side is more of a committee making decisions, and there will often be internal disagreements as to how to proceed. On your side, it’s just you and your attorney — and most of the time you two have worked out before the mediation what your “bottom line” settlement number is, and you leave the negotiating part to your lawyer to meet or exceed that number.

It may sound trivial, but one of the best pieces of advice I can offer personal injury plaintiffs before mediation is to bring something with them to do. Bring magazines, a book, a video game, something to occupy you for hours when you would otherwise be sitting around fidgeting. Also, bring your own snacks, just in case the mediator doesn’t have any you like. The same goes for drinks, if you don’t like coffee, water or soda. Bring your medications. If you smoke, bring enough cigarettes to last the day. If you are on a special diet, bring your own lunch. While the mediator will order lunch at long mediations, it will usually be from a sandwich shop. You could be at the mediation all day, and you do not want fatigue, hunger, nicotine withdrawal or anything else to be a major factor in your decision-making process. They will be a factor, as fatigue is one of the reasons mediations work. Both sides just get sick of going back and forth with numbers and want to cut to the chase eventually. If you keep yourself nourished, hydrated and amused during the mediation, you won’t be as fatigued as the other side, which is usually advantageous.

Mediation – The Defendant’s Initial Offer

Just as your attorney will make his opening offer much higher than what you really are willing to settle for, the defendant will always make his opening offer far lower than he is willing to pay. Do not be insulted by the defendant’s opening offer. Many plaintiffs think that they are wasting their time at mediation when they hear the defendant’s opening offer. Expect a lowball. It may be $1,000.00 or $500.00, or some other low number no one in their right mind would accept. The defense knows you won’t take it. They are really just sending a message that your number is far too high. Don’t get upset and don’t walk out regardless of how low the first few offers may be. Give it time. It usually takes hours to get into “real world” numbers during a mediation. Why? Gamesmanship.

Mediation Gamesmanship

Negotiating a settlement has become a game for most attorneys. Many attorneys do not like this aspect of mediation, as it is an enormous waste of time and energy. However, everyone feels compelled to play because it adds a level of predictability to the process. Ultimately, mediation is just a process of “moving the middle.” The “middle” I refer to is the number in between the plaintiff’s last settlement offer and the defendant’s last settlement offer. So, if the plaintiff offers $300,000.00 and the defendant offers $100,000.00, the middle is $200,000.00. This middle moves each time counter-offers are made. If the next round of offers was: Plaintiff – $280,000.00, Defendant – $110,000.00, the middle just moved from $200,000.00 to $195,000.00. Eventually, in a case that can settle, the numbers get close enough that the parties can agree to split the difference. The key for the plaintiff is to keep the middle at or above what he wants to settle for.

This explains why your attorney may open mediation demanding $300,000.00 even if your case is worth roughly $60,000.00. He is just leaving negotiating room for himself. The early offers in a mediation say less about where the case will settle than the difference between the last two offers from each side. For example, if you moved down $20,000.00 and in response the defendant moved up $10,000.00, the inference can be drawn that the defendant will keep moving up $10,000.00 for every $20,000.00 you come down. If that movement will not result in you meeting your settlement number, your next offer may come down only $15,000.00, to let the defendant know that you are willing to move down only $15,000.00 for every $10,000.00 he comes up. This goes back and forth many times, often in smaller increments, until each side gets a feel for where the other is truly headed. The main reason for the plaintiff starting way too high and the defendant starting way too low is to give each side enough room to move until they have determined where the other side wants to finish. At that point, if it looks like the numbers won’t meet, it becomes a battle of wills over who wants to settle more. This is also the perfect time to use my $10 settlement tip.

Mediation “Drop Dead” Offers

Often, mediation will eventually result in one side presenting a “drop dead” offer to the other side. The “drop dead” offer means “take it or leave it.” The offering side will let the other know when the offer is a “drop dead” offer. Making a drop dead offer means that you do not want to hear any more counter-offers. Either they accept your number or the mediation ends without a settlement (known as an “impasse”). Realistically, people do make counter-offers to drop dead offers if their counter is very close to the drop dead number. Whether the drop dead offer is really a final offer depends on the people making it.

Successful Mediation – Settlement

If you successfully settle you case at mediation, the mediator will prepare a settlement agreement for all parties to sign. You will get a copy to keep with you. You will likely have to sign a release and in many cases a confidentiality agreement prepared by the defendant. They may not have this at the mediation, but your attorney will review and approve of the documents before you sign them. Congratulations! Your case is now over and you will soon be paid.

Unsuccessful Mediation – Impasse

If your mediation results in an impasse, your lawsuit will just continue as if the mediation never occurred. However, all hope for settlement is not lost. I have had several cases that ultimately settled after a failed mediation (some within days). Both sides tend to want to revisit settlement possibilities when trial approaches. However, do not take mediation lightly because you expect the case to settle at some time down the road. Mediation is usually your best chance to settle.

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150 Responses to Mediation Advice for Personal Injury Plaintiffs

  1. jane kee says:


    • fl_litig8r says:

      I’m not quite sure what you mean by a “commercial case.” Do you mean workers’ comp? In most workers’ comp cases, you are only entitled to 2/3 of your lost earnings, based on your average weekly wage, plus all medical expenses — no pain and suffering.

      Three herniated discs is very serious, obviously. In most personal injury cases, assuming there are no liability or insurance coverage issues (see my How Much is My Lawsuit Worth article), three herniated discs would be worth a lot more than $1,000.00.

      As to whether you can “undo” your mediation, my best guess would be no. If you could provide more info, such as whether you had a lawyer and what you mean by “commercial case”, I might be able to give a more definitive answer as to what your options may be. Also, was the $1,000.00 the total settlement or just what you received after attorney’s fees, costs and medical bills were paid?

  2. h says:

    We have mediation with Target in about a month

    it was a slip and fall and my mom’s wrist was broken.. a plate was installed
    She uses her hand allot for work and owns her own business. She can use her hand properly and its not the same. She has a scar as well

    What should we keep in mind during mediation and after medical bills what type of numbers should we be looking at/ requesting? (attorney keeps 1/3)

    • fl_litig8r says:

      It would be totally irresponsible of me to throw out numbers based on the information given (and believe me, I’m not asking for more information). First, verdicts vary from state to state and even county to county within the state (for example, verdicts run higher in Dade county, FL than they do in Walton county, FL just based on cost of living and demographics). Second, I don’t know if Target has any possible liability defense — not every fall in a store is clearly a store’s fault. Third, her wage loss will be different than other plaintiffs’, and because she’s self-employed, proving the amount of her loss will likely be more difficult due to her not getting a set-in-stone weekly paycheck. Fourth, not all wrist injuries cost the same or heal the same. Her potential future wage loss, medical bills and pain and suffering will depend on the success of her treatment. Finally, her age will be a factor on future losses.

      That being said, for general advice, see my article on how much your lawsuit is worth. For specifics, you’d need to consult a jury verdict reporter (it looks like a cheap magazine that contains listings of verdicts and summaries of selected cases from your state). Your lawyer may subscribe to one –it’s usually a monthly publication– so it wouldn’t hurt to ask if he’s found similar cases for you to see (the verdict reporters provide a summary of the case, the type of accident, the injury involved and the outcome of the case, including damages awarded — among other things). If he hasn’t researched it yet, but does have verdict reporters, you could ask if you could browse them at his office if he has an empty room available. They are indexed by type of accident, body part hurt, and county. You’d want to check the body part index and only look at wrist injury cases, as your main concern is previous damage awards. It is unlikely that you’ll find a case directly on point with yours, but it should give you a feel for the pain and suffering damages awarded and how they correlate to the past medical bills so you can extrapolate from your mom’s past medicals.

      If your lawyer doesn’t subscribe to a verdict reporter, your local law library might (usually located in your local courthouse). You could call them to see if they have any. It should be free to use. You probably won’t be able to check any books out, but the library should have a copy machine available. I’m not aware of any free verdict reporting service, whether online or otherwise.

      Of course, your best resource is your mom’s lawyer. Make sure you have a pre-mediation sit-down appointment with him to discuss the value of the case so you’re not caught completely off-guard at mediation. Make sure his fee is still 1/3 (in FL, it’s 1/3 until a lawsuit is filed, after which it goes up to 40%). Also, before you settle you’ll want an accurate accounting of his costs, because those come out of your mom’s portion of the settlement (they don’t come off the top). Don’t forget that if your mom’s health insurer paid any of the bills, there’s a strong chance she’ll have to pay some, if not most, of that back, as well.

      I’m sorry if I come off as vague and non-committal as to your specific question, but it’s hard enough for a lawyer to put a value on his own cases. It’s impossible for me to do so with a case for which I don’t have the complete file.

  3. Alysa says:

    I read through your site and was not sure where to post this question. Is it considered practicing law without a license if an injured party in a car accident ” Assigns a non lawyer his legal assigned agent ” by way of a General durable power of Attorney, and the POA as described and given legal authority as the POA document dictates ” ability to settle claims, whether personal or anything related to the victim of the auto accident ( as the POA dictates the ability and legal authority to do ).

    Can the POA demand a settlement from the at fault carrier, negotiate a settlement and communicate for the injured party in all aspects or transactions with the at fault insurance carrier.

    The settlement demand was with the Insurance carrier, however, the insurance carrier reassigned the claim straight away to the carriers Attorney, yet did not reveal to the POA, the carrier was reassigning the claim to the Attorney.

    The Attorney eventually identified them self as an Attorney, however, refused to speak to the POA or communicate on any level, in addition accused the POA of practicing law without a license, stated it was a criminal offense, quoted the Statutes which only describe the fines and sanctions to be entered if found guilty of practicing law without a license, sent a duplicate of this letter to the at fault party of the auto accident, thereby libeling the POA with what I feel is a false slanderous accusation.

    I am unable to find any case law relevant to this particular topic ” most literature describe acts that constitute practicing law without a license by Attorney’s, adjusters, legal assistants.

    The Attorney based the accusations of the signed name used at the end of the demand letter ” legal assigned agent ” ( injured party ) The demand letter was sent to the insurance carrier, the Insurance carrier as well as the Attorney are well aware the POA is not and has never stated they were an Attorney, Lawyer or anything related and revealed the relation status of the injured party.

    As said, the insurance carrier never responded to the demand at all, but reassigned the claim to another agent, who later revealed they were an Attorney and then the Attorney wrote the letter as described above to include the false accusations, and sanctions, as well as sent the letter to the at fault party, and as said in my opinion is libel, and acting in bad faith.

    Please provide any knowledge or personal opinion.

    Thanks so much.

    • fl_litig8r says:

      Your question is trickier than it would initially appear. As an initial matter, what is your relation of the person to whom you’ve given the POA? If this is some third party company or an unrelated party who is charging a fee for his “settlement negotiation” services, I’m pretty sure most states would consider what he’s doing unlicensed practice of law (UPL). It doesn’t matter that a lawsuit has not yet been filed. Most states consider the act of representing someone else in settlement negotiations of a legal claim to be the practice of law. Using a POA to try to circumvent the UPL statutes is pretty clever, but I doubt that any court would permit UPL through this kind of loophole.

      If you have issued the POA to a family member or friend due to impending physical or mental infirmity (I have had clients do this), or because you will be unavailable to handle the claim for some other reason (out of the country, etc.) I don’t see a problem with it.

      As for the insurer refusing to deal with your POA, if it is not merely a sham to facilitate UPL, it may very well constitute bad faith. This will probably only be useful if your claim is worth more than policy limits, however. As far as it being libel, I’d wager that qualified privilege would protect the insurer from that type of claim. Also, there is the matter of what damages you’ve suffered (if any) due to the insurer’s attorney copying its insured on the letter.

      Without any more info regarding the reason for the POA, I can’t say whether what the insurer did was wrong or not.

  4. alysa says:

    The principal is my brother, I am acting as his assigned agent at his request. My brother has a jaw injury making communications difficult, in addition, he has other injuries which are also painful as well very emotionally distressed and the insurance carriers tactics have done nothing but distress him further, hence, he assigned a family member to act as his agent. There is no money changing hands, the agent, myself am merely communicating what he himself dictates me to do, but is not able to sufficiently due to his conditions. There is no legal advice being given, as I am not an Attorney and have never claimed to be one. If this was seen by law as UPL, then it would void on its face the general durable POA and render it useless. I am sincerely confused.

    The Florida General Durable POA in a legal document with broad coverage. It states the principal can assign a chosen agent to handle matters for the principal. One portion grants authority to settle insurance claims, disputes and the like. As I understand it, he could do so himself legally ( demand settlement for his injuries ) if I am communicating his wishes as his legally assigned agent by the powers granted, its as if I am simply speaking and communicating for him, not undertaking UPL.

    • fl_litig8r says:

      It sounds like you are using the POA legitimately, so there shouldn’t be any UPL issues. As I said, I have had clients of my own facing mental or physical infirmity use a POA to give the right to direct their lawsuits to a relative. I agree that the insurer should negotiate with you as it would your brother.

      If the defendant’s insurer won’t deal with you after you’ve explained the reason for the POA as you have just done to me, it leaves you no choice but to hire a lawyer (unless you want to wait until your brother can handle this on his own). If this is a case worth more than policy limits, and the insurer has rejected a demand made by you through the POA for the limits, you could have a bad faith case. This is really the only remedy (beyond simply winning at trial) available to any plaintiff who doesn’t receive a fair offer from the defendant’s insurer, even if no POA is involved.

      I still don’t think libel or slander is a viable claim, just due to the lack of provable damages.

  5. alysa says:

    Thank you for your answer. The policy limits of the at fault parties carrier are 50K. A demand was made for same. The injuries are cervical disc herniation C6- C7 as well as an anterior tear of the C4-C5 cervical region documented by MRI.

    There is a “unilateral” TMJ injury with anterior and posterior disc displacement as well as a partial tear in the meniscus of the TMJ, in addition it is stated in the TMJ MRI that there is a difference in bone size of the effect TMJ condyle, in that the effected ( injured side ) is smaller ( the bone -Condyle ) then the un-effected side, which leads me to believe there is bone rubbing on bone due to the disc displacement allowing the condyle to have abnormal contact ( understandably ) While I am, not well versed in law, I am in the Medical realm, though not a Physician, I have THOROUGH understanding of the injuries he has sustained and realize they are permanent.

    I am not sure what others may feel constitutes and in what amounts per an insurance policy, but I do know how these injuries are effecting him, physically and emotionally, not just his physical pain, but emotionally as well because the accident itself injured his father Who is also my father, and while my Brother was in no way at fault for the accident, he was driving my fathers car at my fathers direction when the accident occurred and my father suffered serious injuries, whom was already elderly.

    I handled my fathers claim as well with same carrier and was his Durable POA as well and it finally resolved as best it could for policy limits, they are ruthless, and uncaring and not looking to the best interest of any party, but themselves. It is more then sad.

    • fl_litig8r says:

      Be sure to check whether your father and/or brother had UM insurance (your brother would be covered by both policies). To preserve his right to collect UM, you’d need to get the approval of the UM carrier before settling with the BI carrier. I explain this more thoroughly in this article.

      It sounds like your brother has a pretty strong claim, both from a liability and damages standpoint. I wish you luck in collecting policy limits, but I know from experience that if the insurer doesn’t tender them pretty quickly, you will likely have a fight on your hands.

  6. alysa says:

    Thank you once again. My brother as well as my father had UM coverage. My fathers claim has been settled for both the at fault party policy limits of 50K, and the 25K UM.

    I understand my Brother has the at fault party policy limits of 50K available, and in addition, potentially my Fathers Um limits of 25K as well as my brothers own 25K ( respectively a potential 100K total )

    I have alerted all parties of the BI claim, as well as potential UM claim and requested all rights to same be reserved SHOULD my Brother be offered the policy limits of the at fault party.

    I got a response from my Brothers OWN UM to the effect that his damages must total 90K ( concerning all policies in effect ) and they did not value his BI claim to exceed 90K at this time, with the medical records on file. Basically they are using the MRI of the TMJ and Cervical spine only. It appears they do not understand Cervical disc herniations and tears, as well as TMJ injuries, which is not the only injuries he suffers, he also suffers lumbar strain and sprain, headaches as a result of cervical and TMJ, limited mouth opening, grinding, clicking in his jaws, ear ringing, emotional distress and more, which was included in the message alerting the UM carrier of the potential UM claim.

    This claim is complicated by his own PIP, who cut him off in JULY stating he failed to attend an 3 IME’s. The fact surrounding same are that he did present to a 3rd party solicitation to attend an IME with a hired gun chiropratctor ( this was early in treatment, while he was still treating at his own Chiropractor ) who failed to order ANY MRI’s for my Brother. He was sent an address where to present himself for the IME that was at a Podiatry office, givenhe had no foot complaints he was confused and thought there was an error, so he drove way, a short distance and phoned his carrier, at which time they alerted him they had contracted this Chiropractor from 90 miles away to see him in this Podiatry office. Immediately he phoned the Podiatry office back and stated he was around the corner and would be right back there as he was confused ( understandably) When he arrived the receptionist alerted him the Chiropractor ( hired gun had left stating he would not wait) seriously it was a few minutes only, no more then 5 minutes reporting back.

    The receptionist at the Podiatry office gave my Brother the direct number for the IME Chiropractor so he could see why he left, knowing he was returning immediately. 2 phone calls to the Hired gun Chiropractor were not returned though detailed messages were left. The IME Chiropractor for all intent and purpose refused to afford my Brother an IME by his actions. ( my brother had not had MRI’s up to this point.

    A license search of this IME Chiropractor revealed public complaints ( unknown orgin ) My Brother communicated with his PIP carrier later and asked to be provided a qualified Physician who would also be compliant with an IME, and with no complaints to the Medical Board on file. There were 2 other notices sent after the 1rst scheduled with this SAME IME Physician, of which my Brother did not attend due to above.

    He was alerted of these by a 3rd party servicer, not his PIP carrier and at all times continued to request a reputable Physician, and they stated they would get back with him and never did, until they served notice they were closing his PIP in late July.

    The 2 MRI’s were paid for out of pocket as he was not able to use his personal health insurance due to these injuries being accident related.

    I am also fighting this PIP issue, amongst the rest. There is much bad faith already and I am doing all I can to assist my Brother through this mess.

    • fl_litig8r says:

      Glad to see that you are already on top of the UM issues.

      As to your brother’s PIP claim, yikes! I can see why he wouldn’t want to see that chiro for the IME, but I would have advised him to go anyway. All PIP IMEs are for the purpose of cutting off benefits, so one hired gun is usually as bad as another. If this chiro had as much dirt on him as you say, a lawyer could have had a field day suing them for a PIP cutoff based on his IME. If a lawyer wins a PIP lawsuit in Florida, his fees get paid by the defendant (the pip insurer), with the fees often being enhanced by a multiplier (up to 2.5x), so even tiny PIP cases can usually attract a lawyer. You can hire a lawyer just for a PIP claim if you want to avoid the fee for the rest of the accident. Some lawyers I know do nothing but PIP. I think your brother’s PIP claim is shot now, due to him violating the “cooperation clause” in the insurance contract, but it’s just something for you to think about for next next (which there hopefully won’t be. . .).

  7. alysa says:

    He didn’t refuse the IME, he reported to the IME, cooperated fully tot he extent he was given directions. The IME Doctor refused to perform the exam, due to his leaving the facility ( a Podiatrist office? ) He knew he’d be paid, so it didn’t matter to him ( gotta love those Doctors working for a buck, no matter how it comes their way, forget the Medical oaths 🙁

    After calling the Doctor to ask why he left the facility and him not returning calls or answering to his messages he had left for the Doctor, my Brother learned of the Doctors Medical Board complaints. He requested his PIP carrier afford him a legitimate Doctor to perform IME, as the first refused by his own actions ( how do you leave a facility, knowing the patient had only left down the road thinking they were in the wrong facility ( Podiatry office ) and the Doctor being fully aware he was returning in less the 5 minutes.

    His PIP carrier stated they would address these issues, never did and then received notice from 3rd party agent ( you know, those companies that FIND these hired guns to examine patients for these oh so independent medical exams 🙂 The notice was for this SAME Chiropractor, this was clearly bad faith, clearly didn’t afford the patient BASIC Medical rights ( a patient has a right to refuse treatment if there are legitimate concerns and given the Medical Board complaints and patient rights, I would think this alone would suffice, in addition to the Chiropractor leaving himself, which is a direct refusal to examine a willing participant of an IME.

    Where this lands, who knows, but I am going to fight like a cat for my injured family members.

    Thank you for your interest and comments, its good to know someone is on your side when even his own carrier is against him, and paying this same company to afford him this thing called insurance. ( A total farce 🙁

    • fl_litig8r says:

      If your brother still has a decent amount of PIP benefits remaining, it really wouldn’t hurt to talk to a PIP lawyer to see if any would be interested. While I think you’ll have problems with the cooperation clause issue, you do have arguments that some lawyers may want to gamble on. As I said, lawyers can get significant fees from PIP cases, even small ones. Plus, it wouldn’t cost your brother anything (as the fees awarded are above any amounts PIP pays for his medical bills). If you want to do this, look for lawyers who are pushing PIP claims in their ads, as they are the most likely to be interested in a PIP-only case. Most personal injury lawyers would probably only take the PIP case if it meant they could represent him in the BI claim as well. If you make an appointment, make sure they know that it’s for PIP only (unless you change your mind about hiring a lawyer for the BI and UM claims).

      You’re doing a really nice thing for your dad and brother. It’s a lot of work (especially when you’re not getting paid for it). I’m glad if I helped at all.

  8. alysa says:

    One more thing. I am inquisitive concerning any sanctions, or penalties an institution or 3rd party may be liable for in the event they refuse to accept a DPOA. I see reference to case law concerning protections 3rd parties/ institutions have for relying on a DPOA after fraud has taken place, but nothing regarding penalties and or sanctions for refusing to accept a DOPA, which is on contrast to the Florida Bar where it outlines specifically that a party refusing to accept the DPOA may be fined, sanction or other in the event the DPOA is refused. I realize you stated this could be an action deemed in bad faith and accordingly litigation could ensue, however, aside from that as per the Fl Bar document as to the later, nothing is found to research on cases similar.

    • fl_litig8r says:

      In your case, there wouldn’t be any penalties specific to the insurer’s refusal to negotiate with someone with a DPOA from a third party claimant. The sanctions you refer to are most likely those which stem from someone who owes a specific legal or contractual duty to the party who issued the DPOA. For example, if a lawyer’s client issues a DPOA to a family member and then that client’s lawyer fails to follow the direction of the holder of the DPOA, it would be treated as if he didn’t follow the directions of the client (and therefore, subject to sanctions).

      In your case, because the third party insurer has no privity or contractual relationship with your brother, your remedies are limited to those which your brother would have if they refused to deal with him (sue them and possibly seek bad faith damages if they should have tendered policy limits). The only risks to the insurer in failing to honor the DPOA are those risks which they’d have in failing to deal with your brother directly. There’s no extra claim for damages or sanctions just because it failed to honor the DPOA.

      In short, if someone must legally follow the directions of your brother (his lawyer, doctor, accountant, etc.) and that person refuses to follow the directions of a valid DPOA holder, they will be subject to the same professional and other legal sanctions available as if they failed to follow your brother’s directions. The insurer’s legal duty is to its insured, not your brother. The bad faith claim would arise not from a breach of any duty to your brother, but in failing to protect its own insured from an excess judgment when you (holding a DPOA) gave it the chance to settle within policy limits.

  9. alysa says:

    You are filled with knowledge, and common sense! Let me ask your take this.

    A demand for policy limits was made ( communication is all electronic) An immediate response comes from the same adjuster who handled my fathers claim saying he’d be out for a week and would respond to demand when he returns.

    9 days pass and I inquire, and get immediate response that the claim is reassigned ( name provided ) no contact info. I asked to clarify contact info with new assigned agent( no response )

    2 more days pass, I get a message from the first rep clarifying an email contact for new assigned agent. ( 11 days )

    3 days later the new assigned agent ( identifies themselves as Attorney ) ( 14 days after demand made ) ( The letter/email that was forwarded to their insureds ) stating it is UPL to settle, demand, negotiate this issue. That I am practicing UPL by negotiating this settlement and by signing beside my name ” Legal assigned agent ” for ( then adding my Brothers name ) Which is what the pamphlet on DPOA states to do, then goes on to Cite only the statute for the criminal aspect ( jail time ) and monetary penalty for UPL .

    Tells me if I doubt what she says to contact Florida Bar and gives me address.

    The Florida Bar

    UPL Department

    4200 George J. Bean Parkway, Suite 2580

    Tampa, Florida 33607


    HERE is where she cites the rest:

    In addition, in case you were not aware, the unauthorized practice of law in Florida is addressed in Florida Statute 454.23, which reads as follows:

    454.23 Penalties. Any person not licensed or otherwise authorized to practice law in this state who practices law in this state or holds himself or herself out to the public as qualified to practice law in this state, or who willfully pretends to be, or willfully takes or uses any name, title, addition or description implying he or she is qualified, or recognized by law as qualified, to practice law in this state, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083 or s. 775.084.

    States this would be her only contact with me, and if my Brother or his Attorney wants to deal with them directly, thats okay, but no communications from me.

    ( This is the same thing the adjusters relayed to me at first, until we produced the DPOA ) but after that they communicated with me and settled).

    I have researched the LAW now and they have 4 days to either accept or reject the DPOA. Monday, after I received the email form this Attorney ( my first contact and communication from her) I replied back, even though she said she would not communicate with me and provided copy of the DPOA.

    I wonder what was going for for 11 days since the demand, the first 9 I was in wait for the Adjuster to contact me back after his vacation. I would THINK someone in good faith would have been working on this demand and contact me sooner if their only intent was to let their Attorney handle the entire thing.

    My thought now is, if after the 4th day as the statute states they do not respond to accept the DPOA ( Friday ) it is as good as rejecting the DPOA, and bad faith, despite having given them 30 days to tender the policy limits ( 12-21-11 ) will be 30 days.

    If they reject the DPOA by no response ( how else would I take it ) then they are rejecting my Brothers demand for policy limits. He could then retain legal council to take their insureds to court and collect his BI damages from them personally. Does this sound like the proper path?

    Due to his PIP as explained, he is obstructed from using it, as well, no one will accept his private health insurance for medical care or treatment due to this being a MVA and the PIP is primary.

    He was forced to pay out of pocket for 2 MRI’s ( Cervical and TMJ ) due to PIP, but the specialist he needs for the injuries is severely expensive, so he has not been able to treat further for the TMJ ( now knowing there is a tear in the meniscus of the TMJ, and it is displaced and bone wearing on bone, as well needs EMG for cervical spine, he has lost feeling in fingers, but the EMG cost alone is too much. He was able to find one Doctor ( the one who ordered MRI, it was a family practice, but AFTER he prescribed the MRI, tried to stop the whole thing after he learned my Brother could not use his own health insurance, thus my brother was able to scrounge up money to pay for MRI’s and followed through.

    NOW, he is left with MRI diagnosis of as described cervical disc herniation and tears, as well as TMJ injury and no way to treat any of such.

    I am concerned IF they do decide to accept the POA, they will delay settlement as they did with my father stating that just because they have a pathological MRI of the spine, its not proof he is suffering. My father was able to use his PIP and had a surgical consult and after the report stating he needs surgery, they tendered the limits.

    My brothers disc herniation is not as severe as my fathers, my fathers spinal cord itself was serious, my brothers disc is causing nerve root impingment, not spinal cord itself.

    Should the insurance carrier know the findings alone of my brothers MRI’S are serious and permanent and therefore put on proper notice ( they could have known, should have known ) they all claim to be medically literate ( they are not, its what I learned in my fathers claim ) however, whose fault is that?

    I just want to see what a legal entity thinks of how this is all being handled before my Brother is forced to seek legal council and then recourse as to whatever the law allows.

    • fl_litig8r says:

      With the facts as you described, I would consider the BI insurer’s non-response as a rejection of a valid demand for policy limits. As for suing the insureds, you’d do that anyway in Florida due to the “non-joinder of insurers” statute (you always sue the insureds, not the insurers). The insurer would still provide them a defense and would still pay at least the first $50,000.00 in damages. The insurer’s bad faith would expose it to the damages beyond the policy limits. Most insurers won’t pay bad faith damages until it is clear that there will be an excess judgment (sometimes not until the judgment is entered). So, unless you want to have your brother deal with them directly now, I see retaining a lawyer as your only recourse.

      I am a bit shocked that you can’t find find doctors who are willing to submit your brother’s bills to his health insurance. Even though PIP is primary, the health insurer would still pay if PIP rejects the claim. The providers should submit to PIP first, and when it’s rejected, submit to the health insurer. I’ve never had a problem with health care providers doing this. Who told you he couldn’t use his health insurance? If it was the health insurer, you should talk to an ERISA health insurance lawyer (assuming it’s a job-based policy — if not it would be even easier to sue, as ERISA wouldn’t apply), because your insurer is violating its contract. A personal injury lawyer may even be able to clear up this issue with your health insurer and the medical providers so your brother can resume treatment.

      As to the insurer evaluating the claim based on the treatment thusfar, the MRIs should be enough to establish a permanent injury (and therefore, entitlement to non-economic damages under Florida’s no-fault law). They should also be enough to put the insurer on notice that an excess judgment against its insured is a distinct possibility (leaving the insurer exposed to a bad faith suit). The insurer’s complete failure to honor the DPOA or make any settlement offer whatsoever would look pretty bad to a jury in a bad faith case.

  10. alysa says:

    Thank you for your further opinion. In answer to your Insurance comments, it is unsettling the information he has been told when trying to obtain even an appointment. I don’t know if its error on the receptionist end taking appointments or they are just entities who don’t want anything to do with MVA victims. ( that too has been of serious issue and caused problems).

    The overwhelming degree of dispute that has arisen in each aspect here is as said, too much, but I will persevere on for my loved ones, who have asked me to be a voice for them.

    I wish you could refer me to an Attorney, but realize your site name most likely speaks for itself. There is still one day left ( tomorrow ) before the insureds carrier must legally answer whether or not they will accept the DPOA ( the statute states 4 days is a reasonable time and since this is the Attorney for the insureds carrier, certainly they are aware of the statutes of Florida in rejecting a DPOA, which would leave them further open to Attorney fee’s and costs should we need to enforce a court order in having them recognize the DPOA.

    The Attorney sent the letter ( as explained in first message ) stating they were willing to communicate with the Principal directly or the Principals Attorney, should he obtain one, just not communicate with me.

    As to the communication with me, this goes against the intent of the DPOA and further, they must state a legal reason for rejecting the DPOA, and no reason has been given, except to accuse ME of UPL, which I am in strict dispute of for obvious reasons you are aware.

    As the time tolls to respond with an objection or denial of the demand for policy limits as of 12-21-11, or even an answer as to acceptance or denial of the DPOA, which tolls tomorrow, as said the time is tolling and will see if they are willing to act in good faith soon.

    I thank you again for your opinions, they are as I thought. Again, its nice when someone else sees things from the same thought process and on the same page.

  11. alysa says:

    I would not give Legal advice under the DPOA and only act in the best interest of and for my Brother, but I could obtain legal advice from a legal source and share it with him, right?

    I would never PLU, but we are both able to use google, to learn rights, remedies and other pertaining to the law, and I could share my findings with him, and him with me, to assist him in this horrid process and we have done this, is that illegal and UPL?

    The insurance Attorney stated in the accusation of UPL that it is against FL Law to demand, negotiate and settle someone else’s injury claim.

    Given the DPOA specifically states per claims and litigation :

    To commence, prosecute, discontinue, or defend all actions or other legal proceedings touching my property, real or personal, or any part thereof, pr touching any matter in which I or my property, real or personal may be in anyway concerned, to defend, settle, adjust, make allowances, compound, submit to arbitration, and compromise all accounts, reckonings, claims, and demands whatsoever, that now are, or hereafter shall be, pending between me, any person, firm, corporation, or other legal entity, in such a manner and in all respects as my agent shall deem proper.

    I am concerned and confused as to WHY, and what statutes the Attorney is defending this legal statement and accusation ( That I am practicing UPL in communicating my Brothers wish’s, settlement demand), as oer the Fl Statutes in rejection of a DPOA it states that an entity has a reasonable time to reject or accept a DPOA, if rejecting a DPOA in the matter of a financial institution it gives 4 days as reasonable, does not speak to time frames for an insurance Co, or another Attorney, but an entity who rejects, must give a written reason and it must be a good reason basically. No written reason has been received, no notice of rejection or acceptance, and no communication other then the one accusation letter and that it is UPL and warning to the agent citing criminal punishment and fines for UPL.

    1rst, it has to be proven there is UPL, and I dispute this in full, given the facts of the matter.

    Per the 30 day demand for settlement, which ends in 11 days from now, there has been NO good faith attempt by the insureds carrier or agents acting for to resolve the BI claim, other then to state they would be willing to communicate with the injured them self, however, they have not cited a legal reason for rejecting the DPOA, nor as the legal research ( The Attorney led us to seek the statutes ) and the findings are above ). In addition, the Statues clearly state that they could request an affidavit, if in doubt as to the validity of the DPOA, but none of this has been done.

    The injuries diagnosed to date are as follows:

    1. Cervical disc injury ( C6-C7 ) Disc herniation, formanial stenosis, nerve root impingement. ( disc herniation has not receeded in 10 months post MVA )

    2. Cervical disc anterior tear of the annulus @ C4-C5 ( annular tear has not healed in 10 months post MVA )

    3. Straightening of the Cervical lordosis, as MRI revealed, consistent with severe, chronic muscle spasm as a result of the cervical spine injury. ( Severe muscle spasm has increased progressively and has not abated 10 months post MVA )

    4. Thoracic spine nerve root impingement. ( continued radiculitis post 10 months MVA )

    5. Lumbar spine chronic pain and dysfunction. ( continues 10 months post MVA )

    6. Facet syndrome ( continues post 10 months MVA )

    7. Radiculitis, neuritis, sensory loss as a result and combination of the Cervical, thoracic and lumbar injuries. ( continues to progress post 10 months MVA )

    8. Right illium ( pelvic displacement ) causing sacroilliac dysfunction. ( continues to progress post 10 months MVA )

    9. Post concussion syndrome, chronic headaches, dizziness, severe changes in mood effect, memory and confusion. ( continues to progress post 10 months MVA )

    10. TMJ ( Right ) anterior and posterior disc displacement/derangement, a tear of the RIGHT, TMJ meniscus, bony changes of the RIGHT TMJ Condyle ( Bone deterioration of the Right Condlye head consistent with MRI findings that the RIGHT TMJ Condyle head is smaller then the LEFT, this is consistent with the anterior/posterior disc displacement allowing bone to rub on bone.

    The TMJ injury has resulted in a progressive worsening of pain and dysfunction, has altered the normal eating habits of the injured, the injured has been forced to suppliment the loss of normal eating ability ( food intake with protein shakes, drinks and other liquid and soft diet to accommodate the painand inability to eat a normal diet ) He has attempted to use orthotic devices ( splints ) in an attempt to allieviate pain and dysfunction to no avail and it is apparent tears of the TMJ disc ( meniscus ) do not heal as the MVA was 10 months ago and the recent TMJ MRI reveals the TEAR is still present and will most likely increase in size, thus causing more severe disability.

    ( continues to progress post 10 months MVA )

    11. Bilateral ulnar neuropathy ( cubital tunnel syndrome ) due to bracing hands, wrists and elbows on steering wheel when the party heard the crash approaching.

    (Remains present 10 months post MVA)

    12. Severe mental and emotional distress as a direct result of the MVA in which injured’s Father was also seriously injured, ALL of which are a direct result of XXXX reckless and careless disregard for the occupants of the MV XXXX T-Boned @ 50-55 MPH.

    13. spouse has also suffered, both, mentally and physically ( all consortium loss’s ) and will continue to suffer such loss’s so long as her spouse also sufferers, for the remainder of their days.

    Policy limits are 50K, injured is a NOW 38 year old male who was in EXCELLENT physical condition prior to MVA, proven by past medical records.

    What does an injured have to endure to warrant recovery for permanent injury as a result of this MVA.

    Several offers of 3K have been given to the injured early on, there has been no negotiation or attempt to settle this matter since the demand on 11-21-11.

    • fl_litig8r says:

      UPL issues are rarely cut and dry, but if you find yourself acting as your brother’s legal advisor (and not just taking the reins using the DPOA) you are starting to cross the line. It’s one thing to share statutes or other general legal information you’ve found online. It’s another to start interpreting these things for him and advising him on how to act based on them. For example, selling basic legal forms (like wills) is not UPL, but advising someone as to which forms to use and assisting him in its completion is UPL (see this site for cases that provide a more detailed discussion).

      Your situation is somewhat difficult due to the conflict between UPL and the right to appoint someone Power of Attorney. I’m far from a UPL expert (lawyers don’t usually run into these issues), but my instinct tells me that if you use the DPOA to take over responsibility for the handling of the claim entirely, including decision-making responsibilities as to settlement and whether to retain a lawyer, it is not UPL. If, however, you must consult with your brother before taking action (e.g., regarding settlement), it is likely UPL because you are acting as more of an advisor and advocate (i.e., a lawyer) than you are as a person with power of attorney. So, you must ask yourself: have I stepped into the shoes of my brother and assumed the role of the plaintiff or have I used the DPOA to merely act as his advocate and advisor? If your brother is still calling all the shots, you really aren’t using the power of attorney — you’re just writing letters, negotiating and advocating for him, which sounds an awful lot like what a lawyer would do. A lawyer cannot settle a case without his client’s approval. A party can settle his own case without consulting anyone. So, which sounds more like you?

      I think you’ll be fine as far as UPL goes if you truly assume all the rights and responsibilities for your brother’s case, including the right to settle without consultation. The more rights he retains, the more it looks like UPL.

      Shifting gears completely, I can understand your frustration in not knowing the insurer’s reasoning for (1) rejecting the DPOA out of hand without investigation and (2) not making a good faith offer to settle the case. Welcome to my world (at least as to part 2). This happens to lawyers all the time. When it does, we file suit. Some adjusters just won’t be convinced no matter how detailed and persuasive a picture you paint for them. Often, when they’ve had to hire a lawyer to fight the lawsuit, that lawyer will (diplomatically) let them know that they were unreasonable and that the case needs to be settled (I did insurance defense work in my early years, so I know).

      With the facts as you’ve explained them, I don’t know if the insurer’s failure to negotiate now is strictly due to a rejection of the DPOA, or if it truly doesn’t put much of a value on the case. I doubt that you’ll be able to resolve the UPL issue with it, as it seems to have dug its heels in on that. This leaves you with two options if the deadline comes with no change: (1) turn the case back over to your brother to see if they’ll resume negotiations — and let him bounce the settlement offers off of you (as his sister, not his legal advisor) to see what you think, or (2) hire a lawyer.

      I don’t make attorney referrals through this site (as I try to keep it as separate from my law practice as possible), and I’m really not familiar enough with plaintiff’s lawyers in the Tampa area (I can tell who your ISP is from your IP address, which the site logs from all posters) to help you with that anyway. I really never intended to give anyone case-specific advice on this site, but it’s harder than I thought to ignore people asking for help.

  12. alysa says:

    Thank you again, and wow, yes, UPL, very confusing! Who would think that one would have to state whats in ones mind, personal communications with their Brother, in just discussing all aspects of his injuries and the totality. From what you say, it could go either way, guilty of UPL or not, simply by ONE specific personal thought or conversation. This is where the DPOA seems to be contradictory on its face. With a DPOA, a principal NEED not be mentally incapacitated, in FACT, IF they were, the DPOA would not totally suffice, hence for health care issues, it becomes way more complicated as far as powers go.

    As per legal council, its sounds like your legal advice is to retain it. I would be able to seek legal advice as his DPOA and advise him, right? See, how complicated that gets?

    Which makes the Insurance company’s actions in this stance all the more unreasonable. Is the Insurance company acting in the insureds best interest with the way this claim has been handled to date? Because I have solicited legal advice should speak volumes that I am not practicing UPL. Its seems the DPOA can be a catch 22. When I spoke earlier of the accusations from the Insurance Attorney ” accusing me of UPL, THIS is a perfect example of the DAMAGES it is causing, just look at how I don’t know which way to turn, without fear of being accused and CRIMINALLY prosecuted, by the threats ” Citing Statutes for criminal charges and monetary penalties.

    THIS is exactly the intent, the Attorney for the at fault carrier chose to handle the claim this way. Instead of accepting the DPOA, they chose to instill fear, and hope that my Brother would take his own action, so they could take advantage of him in his state of mind and Physical health, it becomes all the more reprehensible by the moment.

    Thank you for trying to advise.

    • fl_litig8r says:

      You should be able to hire a lawyer using the DPOA, though the lawyer may want to ensure its validity and, as most lawyers are extremely cautious, have your brother sign the fee contract as well. Once it’s clear to the lawyer that your brother is on-board with the DPOA, the lawyer shouldn’t have any problems dealing directly with you.

      I wouldn’t be surprised if the insurer’s goal was to try to deal directly with your brother, who is in a more vulnerable state (of course, they also probably know the risk that you’ll hire a lawyer and make their lives more difficult).

      A final note on UPL: the general problem I see with DPOAs and UPL (not specific to your case) is the “slippery slope”. What’s to stop people like disbarred lawyers, former insurance adjusters, and paralegals from selling their “negotiating skills” by having plaintiffs pay them to take over the handling of their pre-suit settlement negotiations (for less than a lawyer) under a DPOA? I think you’d agree that these people would be committing UPL. So, we can’t just say that DPOAs eliminate UPL problems entirely. However, because DPOAs are valid and legal, we also can’t say that anyone taking over the handling of settlement negotiations for a plaintiff under a DPOA is committing UPL. Otherwise, we’ve essentially removed the ability of DPOAs to empower third parties to handle our legal matters, which then begs the question of what DPOAs can be used for at all. Medical matters? Are those less important than legal matters?

      So, there has to be some balance between allowing DPOAs for legal matters while still prohibiting UPL. I think your case, in which the power of attorney is given to a family member who is not being paid for her services, weighs more in favor of upholding its validity. Of course, even that type of relationship must have limits, lest it slip into a de facto attorney-client relationship. This is why I raised my earlier points about whether you are acting as a bona fide plaintiff (via DPOA) or just an advocate and advisor to one (which I’d consider UPL). Of course, I just made up this test after some thought on the matter, so take that for what it’s worth. The Florida Supreme Court may disagree with me.

  13. alysa says:

    Thank you so much. Anyone you provide your legal services to should be proud they have obtained a competent professional who not only investigates the advice they offer, but offers it to the general public for free and with the best interest of those seeking advice in mind. There aren’t many like you, but when one is found, they should be told, consider yourself put on notice 🙂

    • fl_litig8r says:

      Thanks for the kind words. If you want to help me out, send more readers my way (if the occasion arises). Facebook “likes” and Google “+1s” are also appreciated! Good luck with your brother’s case. Let me know how it turns out.

  14. alysya says:

    My Brother decided to respond to them himself, even though he is not up to it, hes says hes going to give them a chance to act right! I’ll let you know what happens and if I can figure out how to give you prompts, didn’t know your site was on Face Book, will definitely send props your way, you deserve props!

  15. alysa says:

    After my Brother sent written communication to the at fault carriers Insurance, as he has relayed to me, he requested that settle with him under the same reasoning as his agent requested, of which, it has been explained, that NOT one of the carriers, even his own have responded to accept or reject the DPOA, and recent research states the POA laws, to include DPOA were updated and effective 10-2011, any entity has 4 days ( not including weekends or Holidays to either accept, or reject a DPOA, but it must be for reasonable reasons, and it must be in writing. None of which, as said ANY carriers, not even his own have done to date. Not a word, not a phone call, nothing, not that a phone call would suffice, as that is verbal.

    Currently, per the original demand, will expire 12-21-11.

    What if any advice or direction would you suggest as per this scenario, as my Brother as said has taken over his own demand, given they all have seemed to reject it, even though it would appear they are not following the Statutes or laws, they are above them I suppose.

    IF he requested his own UM carrier and the policy holder, ( Father who owned the car’s UM limits, where both individually are $25,000.00, totaling $ 50,000.00). Can he do this, and still preserve the at fault carriers BI limits, of which are alone $50,000.00, per his original demand?

    They were all put on notice of the serious and permanent injury, but as said, not a peep from any of the carriers, not to accept or reject the DPOA. If he made a formal demand to his own carriers UM, and my Fathers, what issues would that raise and could he do that, since the at fault carrier will not respond?

    I would never give him legal advice, but he could read here himself and see what you say, that would not be UPL, right? Not that anything to date is UPL, but want to comply with all laws of course and be careful, I respect the LAW.

    • fl_litig8r says:

      If your brother wanted to hire a lawyer to handle his claims, I’d advise him to wait out the deadline on the original demand (the one you made with the DPOA) and then just sue the tortfeasor.

      Because it appears that he wants to take a crack at settling his claim without a lawyer, I think the best move is to treat his new demand as the only one made, and start the 30 day clock from when he sent that demand. It seems obvious that the BI carrier was not considering the original demand due to their UPL threats. While I feel that the original demand was valid (and could support a bad faith action if his damages warrant one), it would be counter-productive for him to argue with them over this issue if his goal is to settle without having to hire a lawyer. Starting off on this foot would probably just make the insurer dig its heels in further and distract from the conversation about the merits of his claim.

      As far as the UM carriers go, your brother does not risk voiding the BI coverage by settling with them first (if they want to settle first, which would be kind of unusual). He does, however, risk voiding the UM coverage if he settles with the BI carrier without first obtaining prior authorization from the UM carriers (by statute they must be given 30 days to choose whether they want to assert their subrogation rights against the tortfeasor — a settlement from your brother would destroy those rights).

  16. alysa says:

    This is good legal advice. I will alert him to come here to read it. Thank you so much. I wish you had a list of Attorneys here, so he could choose one to consult with, after he comes here to read this message. Just going through the phone book and picking one at random is a crap shoot as far as getting one well versed, perhaps he could contact you somehow, since you already know the issues surrounding his claim. Maybe you could shoot him an email if your case load could take on another 🙂

  17. alysa says:

    Per all info given to date here in, here is an update.

    Demand was made as you know and given 30 days in good faith for carrier to accept. The DPOA was not recognized, as the Insurance Attorney has refused to communicate with me, and having not responded as to why, just stating it is UPL ( which is in serious dispute) None the less, today a letter came ( this is 2 days before the demand request is final ( 12-21-11 ) The Attorney has stated again, they will not communicate with anyone but the injured basically, giving no reason and has sent a list of requests.

    To speak to the injured in person and tell the Attorney HOW these injuries and accident has effected them, in there own words and face to face.

    Requested medical records dated back since 1999 ! ( simple, because there is NOTHING relevant, save for bursitis in knee! ( but still its a tactic to delay this process, since all this time went by and just 2 days before deadline date, these requests are being made, this is not a good faith effort to resolve any of this.

    Request for all insurance records….dated back since 2000 PIP you name it. There were some incidents with dents and scrapes in parking lot when no one was even in vehicle, apparently the Attorney already knows this as they provided DATES of came, so its not reasonable to unduly burden injured with this request as they already know there were no injuries related to these events.

    All dental records back from 2000, which are simple, because there is not much ( apparently they want to try and assert the TMJ injury was complained of to dentist prior, which will serve nothing because the TMJ was never a problem until after the accident and so impossible for the dental records to give them a defense.

    Requests for work records dated back to 1999, however, there is nothing to benefit them, he was a contract employee, never reported any injuries, never had any, and in the last several years has been self employed

    Is this reasonable to request at this late date, however we are willing to provide, but how far can they step out of line, totally ignoring the injured and request for settlement and at the last hour, say we need this, this and this, and THIS and we must see you in person and let you tell us how your effected?

    • fl_litig8r says:

      As an initial matter, I never let a BI insurer (or its lawyers) talk directly to my client, except at depositions, mediation, and trial. If I were your brother, there is no way in hell I’d speak in person with them or submit to any live questioning, even over the phone. If the insurer has questions, let it write them down and send them to your brother, who can then answer in writing, himself. This seems to be a cheap intimidation tactic by the insurer, or an attempt to ambush your brother and get him to say things which are harmful to his case (which is a lot easier to do with live questioning). No lawyer I know would allow this type of questioning outside his presence, and no good lawyer I know would allow it at all.

      As to the rest, most of the items requested seem reasonable. Relative to your demand, this request for information is pretty late, as it should have been immediately obvious to the insurer that they’d need some of this info to evaluate the claim. Relative to your brother’s more recent demand, not so much.

      Of course, the deadline issue only matters if your brother hires a lawyer (as the deadline’s real purpose relates to a bad faith claim, which would require a lawsuit). Until your brother has a lawyer, the insurer’s foot dragging will just be something he’ll have to deal with. A PI lawyer’s only answer to unreasonable delays by the insurer is filing suit. I don’t recommend that your brother try that on his own.

      On the plus side, it does seem that the insurer is finally giving the claim a more thorough review.

  18. alysa says:

    For an injured to receive an excess verdict if injured is forced to sue the at fault party personally.

    Please, if you will respond to this brief scenario.

    Policy limits 50K.

    Offers from carrier in past, numerous 3K offers, all rejected.

    No offers or good faith since demand on 11-21-11.

    If the injured sues the at fault party after 12-21-11, and CAN THEY, since just 12-19-11 the Attorney wants all past medical ( prior to MVA, dental records, work records dated back to 1999 ( to fairly evaluate they say) ( really just hoping to find some way out of taking blame for injureds injuries and there is NO medical record, dental record or work record to get them off the hook, because it is clear the injuries occured in the MVA. BUT….since they are asking for all this now, 2 days before demand is due, is the injured not able to move forward to sue the at fault party after the 12-21-11 deadline date, since they make these requests no matter how unreasonable they are.

    And if the injured could go forward after 12-21-11 in recouping for injuries in court with legal councel, what amount must a jury award the injured.

    OVER 50K? or a % OVER the last offer which was 3K, how does THAT part work please. So sorry this is horrible to deal with, I am dealing with a lot, not just this 🙁 My own health for different reasons, my Fathers, my Brothers and more,) but any direction above what you have given is so appreciated.

    • fl_litig8r says:

      An “excess judgment” means a judgment which exceeds the defendant’s insurance policy limits. So, if a defendant has $50K in liability insurance, a judgment against the defendant for anything more than $50k is an excess judgment. It means that the defendant is personally liable for the amount which exceeds his policy limits.

      If you receive an excess judgment and prove that the insurer committed bad faith, the insurer is then liable for the full amount of the judgment, regardless of policy limits.

      Whether the insurer is acting in good faith by requesting additional information so long after the initial demand would be a jury question in a bad faith case. Except in cases where it is obvious that the plaintiff’s claim far exceeds the defendant’s policy limits, bad faith cases are never a slam dunk. You can usually tell the slam dunks by the desperation to pay full policy limits shown by the insurer immediately after it realizes it missed your deadline. In most cases, it comes down to reasonableness. If the plaintiff loses a limb in a car accident and the defendant has policy limits of $50k, it would obviously be unreasonable for the insurer to try to delay payment beyond the 30 day deadline just so it could check the plaintiff’s medical and accident history. In other cases, where the plaintiff’s injury could be due to a pre-existing condition, it’s less cut and dry. In your brother’s case, where the insurer expressed concerns (valid or not) about the DPOA, it gets even more muddy. This is why I suggested treating your brother’s new demand as the only demand for deadline purposes, as the technical validity of your demand only becomes an issue when you’re actually ready to file suit (i.e., have a lawyer).

  19. alysa says:

    The Attorneys reasoning for wanting face to face conversation, is so they are sure they are talking with him and not ME! ( The Attorney said that in the letter ) My brother sent them an email through his own email and they can check his ISP if in doubt. What bothers me more is that it seems to be personal now, between that Attorney and ME and is taking it out on my brother, forgetting about the DPOA, and how they are getting around a legal DPOA is beyond me.

    • fl_litig8r says:

      That’s a bullshit reason. Your brother’s signature on a letter is sufficient proof that these are his answers. I don’t see what the attorney’s concern is about you answering questions of a factual nature, as these answers would have to come from your brother. This is merely relaying facts, not negotiating.

  20. alysa says:

    Fl Rules for civil procedure concerning demands is confusing, as some of the language alludes to to offer or demand being a % of what was offered, thats why I asked about the % of 50K as opposed to 3K as their offer was. I hope its not UPL by reading Fl statutes, my Brother has read as well as myself, and its confusing to both of us for obvious reasons, we don’t claim to hold a legal license, but could reading public information such as laws and statutes be deemed UPL, he and I both are literate, have internet access and can read, as anyone can, which makes that 3 part test in FL Law ( one being having more knowledge then the average person ) Any person with internet access or a Library can go read and learn, just amazing to me.

    • fl_litig8r says:

      There are no Fla Rules regarding informal pre-suit settlement demands. If you are referring to Fla.R.Civ.P. 1.442 (and Fla.Stat. 768.79), that’s a rule that only comes into play after a lawsuit is filed, and has nothing to do with bad faith. In a nutshell, a formal offer under Rule 1.442 allows a plaintiff to recover his attorney’s fees (from the date of the offer) if the defendant rejects the offer (or fails to accept within 30 days) and the plaintiff subsequently obtains a judgment which is 25% or more higher than the offer.

      Defendants can also use it, and if the plaintiff recovers less than 75% of the defendant’s offer at trial, the plaintiff is liable for the defendant’s attorney’s fees from the date of the offer.

      These type of offers cannot be used before the lawsuit is filed. They have nothing to do with your current situation.

  21. alysa says:

    “That’s a bullshit reason. Your brother’s signature on a letter is sufficient proof that these are his answers. I don’t see what the attorney’s concern is about you answering questions of a factual nature, as these answers would have to come from your brother. This is merely relaying facts, not negotiating.”

    Good gosh, my Brother needs YOU. WHO are you ( 😉 Thats exactly IT in a nutshell, these are his facts he simply chose me to relay them for him as he is distressed, they know this, they have been told and are using THIS is a tool and tactic to beat him down, when their insured already did that to him and my Father! Sorry, it does get emotions boiling.

    Is negotiating a settlement UPL, for the life of me I can’t find anything in the Florida Statute or any case where it states a DPOA is practicing law by settling a claim, ANY kind of claim and the broken record I am ” Sorry ” but as has been said, the DPOA specifically states the power granted in same gives authority to settle claims. Granted he could, no law says he can’t, so why can’t I communicate for him as the DPOA dictates. This is a huge issue as you can see they want to avoid me all around, so they can take advantage of him, in his state ( further support of this is demandind a face to face conference so they know they are talking to him and not me ) This is abuse, further abuse after he and my father were injured by their insured and wish there was something that could be done about THAT ASPECT. Searching and searching, isn’t that what a DPOA should do, keep his best interest at heart and further as to allegations of UPL…settling and negotiating in his best interest is not listed in any laws in Florida, can THAT Attorney MAKE UP NEW LAWS and claim them to be FACT, without evidence to support same? If they showed me law to support THAT, I’d be convinced. You are incredible to offer this website, I have worn out my welcome, and ashamed, but so in NEED! Thank you again!

  22. alysa says:

    The closest thing found, but this was a paralegal and so not fitting for us in this stance.

    I acting as a legal assigned agent for my Brother per the Fl DPOA and having stepped into my Brothers shoes with the powers granted, should be granted ALL authority to do what my Brother could legally do himself, and is done every day of the week when injured parties settle bodily injury claims.

    The carriers Attorney has accused me of UPL as a fact ( given the Attorney is licensed, the Attorney would have a duty to give facutal legal advice), and certainly not use their Attorney license to threaten and scare a Brothers DPOA, or make up case law to support their false allegations, without any laws to support these false allegations not supported by LAW or any case law known. The Florida BAR was not able to offer any case law to this either.

    In fact, there is no settlement negotiation, a demand was made for policy limits, its not negotiable 🙂

    I have a great respect for you, you have only offered solid advice as to what is known as factual in the law, in contrast, this insureds Attorney has used their license for the above and again, to threaten, scare and detour the injured from settling their claim where they know its nin negotiable, policy limits are all that wil be accepted.

  23. alysa says:

    In addition, the insurance carriers adjuster negotiates and settles claims daily, they are not licensed, but able to negotiate and settle in behalf of their insureds, even though there is a legal risk, but if they can get the injured to sign an offer as little as possible, and execute a release of all future claims, they bagged it! They further abuse every right the injured has in their tactics, without retaining a lawyer, there is an equal playing field ( adjuster /claimant/injured )

    The Attorney stepped directly in on this claim, no adjuster, no equal playing field and has used their legal authority to accuse me of UPL with no laws but their own made up law to take advantage of the injured.

    The injured as said is not negotiating, there is a good faith demand for policy limits, the only thing missing is the general release to accept same ( no negotiations needed ) The General release does not require the acceptor be a LAWYER in any settlement, the person can sign it for themselves, so wording such as settlement requiring a Lawyer or legal license is also Moot here in this instance. I am sorry this bothers be terribly. The things they did to my Father in his bodily injury claim are for the RECORD! They are following close behind with my Brother who was also injured and if they did this to my Father and Brother, they are doing it to others and this is WRONG.

    • fl_litig8r says:

      I had actually given some thought to the “UPL by insurance adjusters” argument when you first brought this up, but initially I dismissed it due to the adjuster being an employee negotiating on behalf of its employer (the insurer), so it seemed to be the equivalent of a person negotiating for himself. Even though the insurer’s insured receives the benefit from this (by way of a release), ultimately the insurance company is only getting the release for its own benefit. However, now that you bring it up, I dug a little and it appears more complicated than that. Here’s an article (pdf warning) on this very topic. Spoiler alert: some insurance adjusters do get nailed for UPL.

      Addressing your prior comments, I think it’s generally recognized that negotiating settlements, even pre-suit, is UPL (I don’t think you get off the hook by making a “take it or leave it” offer). Of course, this brings us back to the DPOA, and whether that allows you to negotiate on behalf of your brother without it being UPL. I’ve already given you my opinion on that, and overall these issues will likely have to be decided on a case-by-case basis to ensure that DPOAs aren’t being used solely to circumvent UPL laws. Do I think the insurer’s lawyer is trying to bully you? Absolutely. Has he violated any ethics rules by doing this? Probably not (though Fla.R.Prof.Conduct 4-3.4(g) and (h) could have been violated if it was determined that he threatened you “solely to obtain advantage in a civil matter”). If you choose to open this can of worms by filing a bar complaint against him, however, be ready to defend yourself against a UPL charge.

      It seems like you’ve moved on to venting at this point. While I sympathize, and don’t mind answering questions, I think we’re starting to cover the same ground again. I don’t know that I have more advice to give beyond that which I’ve already given.

  24. alysa says:

    I hope I haven’t offended you by saying I want to file a bar complaint related to the Attorney’s actions. Personally, and no offense I hope is taken, but, I see it beyond an ethics violation, or simply bullying, the Attorney has accused me of a crime and threatened prosecution, in addition the Attorney published this criminal accusation to 3rd parties a long with the threats of prosecution.

    You had opined prior that since this matter may be privileged ( that may offer protection to the Attorney per any libel and defamation ) I too looked further into this because it is highly upsetting, and feel because the instance in how this arose is in relation to the DPOA, and the accusations are personal toward me, which is separate from my Brother, there are legal lines that have been crossed and not by me.

    I have a duty to act in the best interest of the Principal and carry out those same duties. There are no Fl Statutes pertaining to DPOA as UPL, nor any Fl statute in dealing with insurance companies, aside from case law documenting adjusters, paralegals, or other entities who can be SEEN as perhaps practicing law without a license. There is nothing in case law remotely similar to acting for a principal under a DPOA in settling a claim, any claim, whether it be the principal with an adjuster, by being offered a settlement or demanding one that pertains to anything that has transpired to date.

    I have looked into all of this and if there is anything at all that has been done and as you said each case is tried on a case by case due to the differing scenarios that may arise in UPL, but nothing remotely similar in my stance.

    When I say this, don’t take it wrong, but you mentioned IF ” I opened that can of worms ” I take that as if I choose to file a complaint be prepared for having to defend myself and rightfully so, but I think the laws also have a good dose of common sense, for the most part and an ATTORNEY ” the one who accused and stated as FACT that it is a FLORIDA LAW, that someone who demands a settlement for an another, someone who negotiates for another, is practicing law without a license and if I DOUBTED that to contact the Florida bar and that is just what I did and the Attorney was lying, there is no FL LAW stating this, it is not a law, and the Attorney can only be seen as accusing ans threatening me with this to try to intimidate, scare and embarrass me to others by stating as fact I am criminal under the law and providing the statutes of the penalties, both criminal and civil for doing same.

    Besides case law, ( of which there is none ) and the 3 part test, I do not fall anywhere in the 3 part test, so it is what it is, and the Attorney should know better then to accuse someone of a crime and threaten prosecution, since THEY are the Attorney who are supposed to KNOW the LAW, not MAKE UP LAWS a long the way to suit their purpose, which can be seen as nothing more as treating the injured severely unfairly, their insureds, and myself personally when I am doing what the DPOA dictates me to do.

    IF THEY wanted to offer my BROTHER a settlement while I am the DPOA, then as a DPOA I have to make a decision whether it is fair for him or not. For me NOT to follow all duties prescribed to me in the DPOA is unethical, so how could I be practicing law without a license. The only thing wrong here or criminal is this Attorney’s actions in defending their stance, making up laws a long the way and threats to prosecute under same made up laws.

    IF my Brother requested me to handle a real estate transaction for him tomorrow, all banking, all money matters as the DPOA dictates I have authority to do, and I did not act at his request having accepted full duty, then I have breached my duty, and their refusal to honor the DPOA puts me in a catch 22, and they have done so in bad faith, there is just no way around it.

    I do welcome your legal opinion or arguments, you have been a great resource for many, and if you should come across some law remote to the issues here I would welcome a link to read.

    Hope you had a wonderful Holiday.

    • fl_litig8r says:

      You have in no way offended me by considering a bar complaint (or any other action you deem appropriate) against this other lawyer. If I implied that, I am sorry for the misunderstanding.

      I made the “can of worms” comment just as a friendly warning. Because yours would likely be a case of first impression as to DPOAs and UPL, you never know how it will turn out. I just wanted to make sure you considered this before proceeding. As to my opinion about the ethics complaint, I’m hesitant to say that it would result in discipline mainly because this type of complaint usually arises in a quid pro quo context, e.g., “take my settlement offer or I’ll report you. . .” Playing devil’s advocate, I could see the lawyer arguing that he was merely trying to educate a lay person that she was violating Florida law (even though I don’t think you were), that he was explaining his refusal (wrongful or not) to deal with you, and he was not making a threat to gain advantage in a civil suit (another obviously debatable point, given the advantage of dealing with a less savvy claimant). Because these issues will hinge on his intent, I think it will be difficult to prove. The last thing I want to see is you file a complaint against him and wind up being the only one facing punishment.

      So, chalk it up to my “worst case scenario” lawyer way of thinking. By all means, you do what you think is right.

      If you’re still interested in hiring a lawyer, shoot me an e-mail at fl_litig8r at this website domain (damn spambots) with your name, city (as I said, I assume this is the Tampa area) and contact info. I don’t know anyone in the Tampa area, but I know a lawyer in my neck of the woods who is far better at networking than me who I can hit up for a referral. I make no promises, but I will ask him if he knows anyone good in your city.

      I hope the new year brings you and your family more luck than this one.

  25. alysa says:

    Points well taken and appreciated as always. Having the letter in hand and seeing the exact wording would help anyone reading it understand. What I mean is, per a potential defense argument, there is nothing in the letter that even alludes the accusation was simply an opinion, or that it was trying to help a lay person understand the FL LAW regarding UPL, as there is no Florida Law. The exact wording in this letter clearly states as fact that it is FL LAW, that to negotiate or demand settlement for another injured party is practicing law without a license and the penalties for civil and criminal prosecution were written out with the statutes of same as the threat.

    An opinion would have been ” we must look further into the DPOA before we can speak with you regarding your Brothers claim, because presently without further investigation into the Fl Law, it would appear on the surface your acting as your Brothers DPOA to settle his BI claim could be construed as UPL”

    As opposed to ” It is UPL in the State of Fl to negotiate or make a settlement demand for another injured party in the State of Florida and if you DOUBT this contact he Fl BAR, and phone number and address was provided to my nearest office to verify the FACT or any doubt I may have, and further for impact and to intimidate and place fear in the DPOA and the Principal, the criminal and civil penalties spelled out in that it is a FELONY”

    I understand playing Devils advocate, it never hurts to see what could be, or may be, but if the justice system is not corrupt, I have no fear that the letter in itself clearly lays out the intent, statement of facts and the threat. No other inference or later defense would help them defend their actions. To LATER claim it was just an opinion when I raise issues of these meritless defenses, is a crap shoot at a defense now to see if I’ll back off, when they KNOW the writing is on the wall as to all they have done. I refuse to be bullied, threatened and intimidated by their legal professional’s who have a duty to know the law, quote the law as it is, in contrast to making up their own Fl Laws, stating them as fact, and trying to scare me and my Brother with these false made up laws so that we will shrink away in fear.

    If they would rather continue to make this a personal vendetta instead of protecting their insured and their employer ” a very large insurance company ” I suppose they would weigh the risks themselves, for their job safety ” I don’t think their bosses and the Company President would be too happy in defending their actions in a Court of Law for a jury to decide on the intent of their letter and threats. Its not like they made verbal statements they could later retract to defend it was simply an opinion and verbally could be taken different by anyone hearing it, this is in writing and not ambiguous, no other language could be construed.

    I’ll be in touch if this continues, it is not my intent or wish as the DPOA to litigate and cause unecessary expense or penalties to ANY of them, my only intent is uphold my duty of the DPOA and that is by stepping into the shoes of my Brother as his DPOA and carrying out all actions he could do for himself if he were not in physical and mental duress to carry out these same acts with the Insurance carrier that are in fact done every day of the week, with an Insurance company.

    Thank you again, and hope the New Year brings you much happiness, your a great person to extend free legal advice to so many!

  26. Annie says:

    Getting prepared to go to mediation. My question for you is how to handle my own attorney’s costs. I plan on asking them for a current accounting before I go. I suspect that it’s going to be exaggerated and padded with charges for things I probably shouldn’t be charged for or charged too much for things. How do you suggest handling this with my lawyer?

    • fl_litig8r says:

      You raise an important question. It’s so important, I’ve decided to write an article about it rather than just put my answer in the comments, where it may be missed. Check back tonight and the article will be on the top of the homepage. I’ll also leave a link to it in this comment. Thanks for the idea for a new article!

      Update: Finally done. Here’s the link.

  27. alysa says:

    I have sent you an email as suggested a while back. The time has come to expedite this matter with legal representation, please check your email.

    Thank you once again for your invaluable services to the general public, you go above and beyond!

  28. Jenny says:

    Just had a mediation. It was unsuccessful. So unsuccessful as to never even get off the ground. Not only that, it was bizarre, in my opinion. As you stated, they offered me a ridiculously, not even worth nothing amount. The problem is they never budged off of it at all. And not only that, I thought the mediator was supposed to be impartial. Supposed to not play judge and jury about the case? Well, my mediator apparently did not get that memo, because his behavior was weird. First of all, he kept looking at my breasts. Let’s just put that out there. Secondly, I overheard him tell my lawyer outside of the room before the other side even got there that there was no way they were going to be successful at Summary Judgement (which is also coming up). He also told me that they may find me partially at fault (ok), but that they were probably at least 70% liable. But then when the negotiations started, he was REALLY pressuring me to take the first offer they had. The only offer they really had. WHAT? My god….this isn’t some little whiplash claim. I had multiple fracture, I’ve had multiple surgeries, I lost my job and haven’t worked in 3 years, etc., etc., etc. Why? Because a retail store had inadequate lighting in their parking lot, and I tripped over an unmarked, unnoticeable curb. Oh, they have the lights. They just didn’t turn them all on that night. (Budget saving?). As a result, I was hurt very badly, and he’s suggesting I should quit? I’m not quitting! Because guess what….I’ve lost everything already. I have nothing to lose. And it is worth it to me to keep fighting the fight until I have no other options. I will go all the way to trial, knowing I may not win, but at least the odds are a little better than being bullied into taking something that would make me feel worse than if I got nothing at all. And I mean that. I’ll take my chances with a jury than that fake mediation we just had. He even went so far to say, after telling me they were mostly at fault, to then say I was ALL at fault? What? I don’t get it. Was there some sort of financial incentive he had for me to lay down? Wow. He said he would have seen the curb. He admitted to having gone to the parking lot….IN THE DAYTIME….and decided that I should have seen it. At night. With the major lights off. Really? He even got mad! He said, “What were you doing that you didn’t see the curb?” Wow. I didn’t realize that we were sitting in the courtroom already and he was the defense attorney. Fact is I was doing nothing but walking. I just can’t help but feel like this is not how they usually go. And now I’m getting nervous about my own lawyer. Because he really didn’t say a whole lot. With me in the room anyway. At one point he had me leave to talk to the guy. I don’t know why. All I know is right then and there I got real strong. Because this is MY case. My lawyer has always felt I had a good case and so does everyone else, including lawyers I know and my relative who sees this stuff every day in his job as a manager in a business liability insurance company. This isn’t some frivolous lawsuit. And I know that a retail store has a responsibility to keep their property safe, and when they don’t have all their lights on, how is that safe?

    • fl_litig8r says:

      Mediators are lawyers, too, and some are better than others at shedding the role of “advocate” when acting as a mediator. Yours was (or still is) likely a defense lawyer. While I have no problem with mediators “beating up” on both sides to help them appreciate the risks in their case, obviously this guy broke the cardinal rule of mediators and took sides. There is no financial incentive for him to do so, as he gets paid by the hour (an equal amount from each side), and this will likely hurt his future business, as your lawyer will likely not want to mediate with him again (and will spread the word to other lawyers). He probably just lacks the temperament to be a good (and neutral) mediator.

      On the plus side, the defendant made your decision easy. Now, win or lose, you won’t have any regrets about not settling. If the defendant moved for summary judgment, there is a chance that you will lose your case before trial. However, assuming your case survives the motion, the defendant may change its tune and offer some real money.

  29. Jenny says:

    Thank you for your prompt feedback. It’s nice to feel like there’s some place to go to talk to somebody in the know other than my attorney.

    I realize that there’s a chance we may lose the Summary Judgement. I think we’ve done a good job of rebutting their arguments, but who knows. There’s also a chance that should we lose there, we prevail at an appeal. And maybe we win and go all the way to court and I lose. I get all of that. I’ve known all along that nobody is guaranteed a victory in these things. But I cannot believe that we don’t have just as good a shot at this as they do. I have spent much time in the last 3 years researching cases and verdicts and settlements and similarities to mine and differences to mine, both in my state and others. I have just as strong a case as any, and if others can win, so can we. Nobody thought Casey Anthony was going to walk….but she did. But having read much of your website and information, I am now starting to feel nervous about my attorney. Maybe he is someone that is afraid/reluctant to go to trial, as you bring up. I sure wish I would have had your site before, as I would have asked about his trial experience. But I didn’t know. I know he’s a smart guy, I assume he’s a hard worker, but I don’t know for sure. I know that I have had some reservations along the way, for example he never really has kept me very informed about anything. That could be, though, that not much was going on at that time. So, I don’t know. But I just can’t shake this fear and reservation about him, especially since the mediation. So I ask you… you think if I decided to look for another attorney to take the case over I should? And can I do this at this point? Would you recommend it?

    • fl_litig8r says:

      I wouldn’t be too quick to start looking for another lawyer. All personal injury lawyers are afraid of going to trial, myself included. It’s a lot of work and a lot of stress, and you never know what a jury will do. One thing that helps is having a client who understands that she can lose, despite your best efforts, but appreciates your willingness to try — you may want to share this with your lawyer.

      In my city there is a story about a PI lawyer who hadn’t tried a case in many years and was so nervous going into trial that he actually threw up in the courthouse bathroom. He tried the case and got a huge verdict. So, don’t be overly concerned about your lawyer’s nerves at this point. Just as the defendant made your decision not to settle easy, they’ve made life a little easier on your lawyer, too. He really doesn’t have much to lose by going to trial (aside from his costs). It’s not like you’ll turn to him after losing and say “we should have settled.”

      As far as his private talk with the mediator, it’s probably nothing bad. I’ve done this before a few times. Sometimes the lawyer knows how much the client is willing to take after fees and costs, and wants to see if the mediator can get an offer that would allow him to settle the case if he cut his fee. He wouldn’t want to say this in front of the client, because he doesn’t want to commit to the fee reduction unless he thinks the settlement can be done for a certain amount. I’m not saying that this is what happened at your mediation. It’s just one possibly benign reason for talking privately with the mediator.

      As long as you are happy with what your lawyer’s done so far, don’t get cold feet now. The best thing you can do at this point is let him know that despite a potentially negative outcome at trial (if you get there), you appreciate his willingness to go the distance for you. It will take some of the pressure off of him and make him more confident about trying the case.

      • Jenny says:

        I understand, and I agree with you. I would like to just add a couple of things to see what you think….one of the main reasons I can’t seem to shake this feeling of apprehension I now have about him is that during this whole mediation thing, he never really said anything. He didn’t jump to my defense, he didn’t bring up any of our arguments, he just kind of sat there. I felt like I was defending my case by myself. And even when we were by ourselves, he didn’t really do or say much. I don’t just seems to me that a lawyer would jump in and help their client out in some regard in a situation like this. Even if it’s just reassuring me when we’re alone together. He took my case for a reason, I just can’t help but think that he must therefore believe in it, and if that’s the case then why wasn’t HE the one standing up to the mediator? Why was I the one doing it? He knows case law and every thing else. If the mediator himself is saying that THEY will lose at summary judgement, then he must feel we have a case. And if we have a case, then why in the world would anybody settle for an amount that wouldn’t even begin to touch the medical bills incurred, let alone anything else? Am I out of my mind? I just don’t think so.

        • fl_litig8r says:

          I assume that your lawyer gave an opening statement that laid out your case in the initial joint session of the mediation. It’s not unusual for a lawyer to choose not to make a rebuttal after the other side makes its opening statement (unless they make a glaring factual error that needs to be corrected — I once had a defendant who obtained medical records for a woman who had the same name as my client, leading him to think that she had failed to disclose a prior accident).

          It may be that he saw early that the mediation would impasse and just didn’t want to needlessly drag it out, or give away anything that might help the other side. For example, he wouldn’t necessarily want to tell them how he plans to argue against their summary judgment motion and give them time to better prepare their counter-arguments.

          Some lawyers have less patience at mediation than others. It can be a frustrating game if you think the other side didn’t come prepared to settle for a reasonable amount. Your lawyer may have had prior experience with opposing counsel or the insurance adjuster that let him know that further arguments would fall on deaf ears.

          As to not reassuring you, he might have been trying to avoid raising your hopes (in case things went south at trial), or he may just be bad at the “hand holding” aspect of being a lawyer (there are worse things to be bad at).

          Usually both sides at mediation already know each others’ arguments fairly well. It doesn’t really sound like he was about to win the day with anything he could have said. Keep in mind that a failed mediation doesn’t mean that your case can’t settle. As I said, if the defendant’s summary judgment motion is denied, settlement talks will probably resume — some lawyers fall so in love with their summary judgment motions that they can’t envision them being denied . . . until they are. Your lawyer may be saving his breath for a time when they will be more receptive to the threat of trial.

  30. Jenny says:

    In regards to our opening statement, there was none from either side. We were never even in the same room. This is the second legal mediation I have been a part of in my life (different kind of case), and there were no opening arguments in that one, either. Maybe they just do things differently where I’m from.

    I do appreciate your response and am taking it to heart. And trying to relax. I have been a bundle of nerves since the mediation and full of anxiety about it all. It has been a loooong, tough road I’ve been on. And though I know there is a chance I am not successful, I have to have hope that if it comes to this, a jury will see things our way. Without hope, I fail to see what all of this was about. Thanks for your website. I believe you are helping a lot of people through a difficult time in their lives.

    • fl_litig8r says:

      Not having a joint session in your mediation, where each lawyer can speak directly to the person who controls the settlement, sounds like a terrible idea. If that’s common in your area, they need to reevaluate how they’re doing things. Having the parties hear an unfiltered version of what the other lawyer thinks about the case is one of the main benefits of mediation. Without that, it’s basically like hiring a high-paid messenger to bring offers back and forth between two rooms. In my whole career, I’ve only had one mediator suggest skipping the joint session — both parties declined his offer and I’ve never used him again.

      I can see now why you were concerned about your lawyer’s silence — without an opening statement, he’d be left with arguing to the mediator, which is far from ideal. Of course, the format of the mediation you had promoted this. Having the mediator ferry all of your arguments to the other side is like playing a high stakes “telephone game”. You can never be sure that the message is being delivered accurately, and you can bet that it’s not being done with the same conviction your own lawyer would use. This whole mediation sounds like it never had a chance to get off the ground. Should you mediate again (after summary judgment), I’d have your lawyer insist on a joint session.

      • Jenny says:

        A recent development in my case: today I received a letter from my own attorney stating that he thinks we don’t have much of a chance at winning at trial and that I should take “x” amount of dollars. First of all, I haven’t had so much as a conversation with him since the mediation. Secondly, we haven’t even gotten the summary judgement back yet. He stated that if I chose to keep going on, he would not be my lawyer. Needless to say, I am floored by all of this. I feel like I have been hoodwinked. I’ve been in this case for 3 years. If this guy thought we had no case, then I do not remotely understand what it has all been for. And to tell me that he’s going to bail if I don’t take that money! The amount of money offered would leave me with, literally, nothing. It wouldn’t even pay off the medical liens, and if he negotiated the down, it still would leave me with basically nothing. I don’t know if I have a case or not…I’m not a lawyer….but I have spent, literally, tens of hours online researching cases, law, etc., and I don’t see how I don’t have a case compared to many, many out there. What I think is REALLY going on here is that I hired an attorney that is lazy. And that has never put forth much real work towards my case. I say this because there have been warning signs along the way. Heck..I didn’t even actually meet him until he had the case for 7 months! I initially met his partner. He has never kept me very informed of things, in fact, I’ve probably received a total of 10 communications from him in the entire 3 years. He didn’t say anything during the mediation, like I spoke about earlier. I haven’t talked to him since then. I don’t think the guy has it in him to handle this case. So he’s going to bail on me before summary judgement happens? What am I supposed to do here? Why would any other lawyer take my case, if my own lawyer is bailing on it?

        I have to tell you, even if I am told by 10 other lawyers that I don’t have a case, I am tempted to just bag it than to pay this guy a dime for sub-par performance, which I really think I have gotten. So from all of this I will be the only one that will not benefit when I am the one that has suffered? The insurance companies will get money, he will get money and I get nothing? Unfortunately, I didn’t know what to look for when I hired him (wish I had seen this website first), and I have no idea where to find a good one. Any suggestions? I mean what happens if the judge comes back with a favorable decision (whenever that is)? I just don’t know what to do.

        • fl_litig8r says:

          Unfortunately, what your lawyer is doing is not an uncommon occurrence in the personal injury field. You’re lawyer figures “Why should I spend all the time and energy required to take this one case to trial, when in the same time I can do a half-assed job on five other cases and settle them for more money?” (I’m sure it sounds less weasely in his head). From the limited contact you had with him, the huge delay in your initial contact, and his lackluster performance at mediation, it wouldn’t surprise me if his firm is a settlement mill.

          I’d suggest that before you get back to your lawyer with an answer, you spend a day calling around to other firms and see if anyone’s interested in picking up your case at this point. I’m not optimistic, as your case seems pretty far along and many lawyers won’t want to risk inheriting a case that another lawyer may have already screwed up beyond repair. It is worth the time to make a few calls, however. If you do find someone who’s interested, that should be a good sign that the new lawyer is willing to take the case to trial (given that he’ll know that mediation impassed). So, as far as selecting a new lawyer, the fact that the new guy is willing to take your case is a pretty good screening tool in and of itself. If you find a new lawyer, let your old one withdraw (preferably without letting him know you found a new lawyer).

          As long as your old lawyer withdraws based on your refusal to accept a settlement offer, he should not ethically be able to assert any claim to fees if you ultimately recover money in the case. It’s pretty universally accepted that a lawyer can’t make a fee claim for such a withdrawal, even if his fee contract states otherwise (some lawyers insert a clause in their fee contracts stating that you’ll still owe them some fees if they withdraw due to you unreasonably refusing a settlement offer). Most jurisdictions find these clauses, even though they use the word “unreasonably”, to be unenforceable, as it impedes the client’s absolute authority to make settlement decisions.

          So, technically, if your lawyer withdraws due to you not wanting to settle, and you later settle with the defendant for the same amount previously offered, you shouldn’t owe your old lawyer a fee. Of course, there’s no guarantee that the defendant will offer the same amount of money once you lose your lawyer.

          Without sounding too “salesman’y”, I think your situation might really benefit from my $10 Settlement Tip. It’s not a miracle cure, but it might be your best bet if you can’t find a new lawyer. Don’t worry. You won’t hurt my feelings if you don’t buy it. I’ll still help you out as best I can.

          • Jenny says:

            I understand all that you’re saying to me. To address some of your thoughts…..though we have had a mediation (which was a joke, in my opinion) and we do have a court date set, it may seem like the case is far along, but the truth is all that has been done that I have seen is one deposition (mine), one mediation and a summary judgement hearing. None of which I felt very prepared for by my attorney (nor that he was particularly well prepared for). When we went to mediation, he had no idea whether their insurance company was Erisa (Arisa…sorry don’t know how to spell it), nor did he give me any idea of how much we were asking for/willing to settle for. These are just examples. In other words, I honestly do not see how he has really done all THAT much on my case. Therefore, I don’t see how it would be too hard for another attorney to step in.

            Actually, I DID download your tip before I went to the mediation. Here’s the thing….the amount that they are offering is so small that I wouldn’t even be able to pay my share of the medical bills. Even if my lawyer took nothing at all, the medical liens would most likely eat up the majority of the money, even negotiated down. It just does not seem right to me that everyone gets paid but me! That I would still be stuck with a big medical debt. It would basically do nothing to help me. If they’re not liable for anything, then why offer me anything at all? And if they’re willing to offer me something, it just seems to me that having a lawyer who is a go-getter and not someone that is just going to roll over when the going gets tough. NO case is a slam dunk, right? I know this. Wouldn’t you say that most cases hinge on how talented the lawyer is at handling cases?

            This guy gave me a week in which to decide. I will definitely call some other firms and see if someone will take the case, and if they do, then I’m just not going to respond, or respond after the week runs out. I just don’t see how your lawyer can just abandon you and your case when there’s a summary judgement decision still out there. What if the judge rules in our favor? Seems to me that would indicate a chance with a jury, wouldn’t you say?

          • Jenny says:

            UPDATE: I have spoken with three attorneys. Two of them are interested in my case, one of which is a very good firms that not only specializes in premises liability, but also trials! The other one is also a very experienced TRIAL attorney who has had excellent accolades for some cases she’s worked on. Both good firms. Neither one had ever heard of my lawyer. Both agreed, after taking the time to listen to me, that my lawyer didn’t do a good job, isn’t very well prepared, is most likely scared of trial. So, I notified my attorney, told him that I understand that if I don’t accept this dollar amount then he is quitting, but I am NOT accepting and so be it. Short. Sweet. To the point. I”m not firing him. He has to withdraw.

          • fl_litig8r says:

            I’m glad to hear it. I hope your new lawyer gets you what you deserve.

          • Jenny says:

            This just gets stranger. So I spoke with his secretary today to see when I can come pick up my case file. Some excerpts from the conversation and my responses:

            “He’s not quitting.”…Really? Well, his letter says either I take the ridiculous sum of money they’re offering or he’s withdrawing. I don’t know what verbage you wish to assign it, but in my book….that’s quitting.

            “There’s no way a jury will find in your favor.”….Really? Because that’s not what he’s been saying for 3 years. Now all of a sudden, because it looks like we may have to go to trial, he’s singing a different tune. I’m sorry, but the amount they’re offering gives me no incentive whatsoever to accept it and I’m not. And if a jury will never find in my favor, tell me why that is. Because nobody has ever said one word as to why.” Her answer….nobody has to say why. My reply…there has to be an answer. You don’t make that kind of a judgment and then give me, the plaintiff, no reason as to why.

            “I don’t want you to dislike Tom.”…I don’t dislike him. (Answer I wanted to give but didn’t….why shouldn’t I dislike him? For 3 years he’s been blowing smoke up my arse, singing a different tune. The guy has not put in the effort required to actually have a chance. He’s never even visited the spot I was injured at! He’s never consulted with any sort of expert to see if they’re in code. He NEVER returns emails, voicemails or takes phone calls. He left me to the wolves in our mediation…never said anything, and I mean ANYTHING to defend me. I felt like I had no lawyer. And then he drops me before we even get the results of summary judgement. I’m sorry….what is there for me to like?

            “What amount were you looking for?” How would I know? Other than in the very beginning, he’s never told me anything about dollar amounts. I don’t even know what he demanded from them! Why? Because he never sent me any copies of the demand letter. He never said anything to me in mediation. In fact, he’s never really shared anything with me at all but the most basic of information. I have pretty much been in the dark on my case since he took it.

            Bottom line….even one of the attorneys that is now interested in my case asked me why they say I would never win. And when I told him nobody seems to be able to answer that for me, he was flabbergasted.

            In my opinion, they don’t know what a jury will or will not do. Every jury is different. And if my case were so terrible, then why did he take it in the first place? Why didn’t he back out of it a long time ago if that is the case. This guy is a lazy tool. Good riddance. And if my case never goes anywhere, I will never regret not taking this money. Because the only ones who would benefit would be the attorney and the insurance company. I wouldn’t have even been able to pay my outstanding medical bills. I have nothing to lose by not taking it.

          • fl_litig8r says:

            So, there’s no way a jury will find in your favor, but he’s not quitting? Why would a lawyer want to keep a case that he can’t win?

            This is sounding more and more like a settlement mill. He tried to bully you into settling with his threat to withdraw, and when you said “go ahead and withdraw” he now seems to be backpedaling to avoid losing all of his fee. I guess he figured his threat would work.

            I think you should probably send him a letter confirming your refusal to take the settlement offer and accepting his withdrawal. Ask if you need to sign his motion for withdrawal (client consent greases the wheels), and ask that it be done quickly so that you can obtain new counsel without a substantial interruption in your case.

            Don’t let him weasel out of his threat to withdraw.

  31. DPMS says:

    During Mediation when everyone takes a break, Can the Defendant’s Attorney approach the Plaintiffs in the same room as Plaintiffs Attorney and the Mediator and offer the max amount of the policy by physically walking around the Plaintiffs Attorney and the Mediator and not speaking to either of them .

    Then placing a check on the table and pushed it in front of the Plaintiffs and Stated that this can be settled now and began to tell them that if a settlement is not reached that appeals can and does take a long time and that they have cases that have been going on for years, because of appeals in the courts.

    Both the Plaintiffs Attorney and the Mediator was shocked and totally caught off guard at the actions of the Defendants Attorney. The Plaintiffs said No but was shaken by this event, so the Defendant attorney grabbed the check up and left the room abruptly.

    I guess what I am asking or stating this was such shocking behavior. If this is acceptable behavior then can the Plaintiffs Attorney approach the Defendants and speak to them directly in Mediation. And have you seen this type of behavior from Attorneys in Mediation

    • fl_litig8r says:

      As long as your attorney was present when this communication took place, I wouldn’t consider this to be an unethical ex parte communication. So, yes, he can. Of course, it doesn’t seem like the smartest tactic to choose, as evidenced by how you reacted to it — I would imagine most parties would react the same way. I think your lawyer and the mediator were more shocked that this guy would do something so stupid, not that he was violating any bar rules.

      It sounds like he was trying to use these theatrics to bully you into a settlement. I really can’t imagine this ever working, though. Certainly not with your attorney in the room.

      While your lawyer could, in theory, try the same thing with the insurance adjuster (albeit without a check to shove in front of him), I would expect it to be as unsuccessful a ploy as it was with you. Of course, it would probably be easier in most cases to bully a plaintiff (this is probably the plaintiff’s first lawsuit in most cases) than it would be to bully an adjuster, who deals directly with plaintiffs lawyers regularly in pre-lawsuit negotiations. If the individual defendant is present at the mediation, in addition to the adjuster, there really isn’t any point in bullying him, as he doesn’t hold the purse strings.

      I’ve never had a defense lawyer try this stunt with me. He would get an earful from me if he did (I’m not saying your lawyer was wrong if he didn’t chew the guy out — I would just want to make it clear to both him and my client that we wouldn’t succumb to intimidation). The closest I’ve ever come to this happening is having the defense lawyer send a check over with the mediator when making his final offer.

      As to the threats of dragging out appeals, I see nothing wrong with that. I’d respond (as a lawyer, not as a plaintiff) that he sounds pretty desperate if he’s already predicting a loss that needs to be appealed.

  32. JH says:

    I have a question, we have a wrongful death med/mal suit against the doctors of a medical group and the hospital they work out of, it is set for trial soon, the hospital wants to go to mediation but the doctors do not, can we settle with the hospital in mediation and go ahead to trial with the doctors?

    • fl_litig8r says:

      Normally, settling with a party (the principal) which is “vicariously liable” for another party (the agent) will not release the agent from liability, assuming that the release executed between the plaintiff and the principal expressly excludes the agent and reserves the plaintiff’s rights to pursue its legal claims against the agent. So, as long as your release with the hospital expressly excludes, and preserves your right to pursue your claim against the doctors (and their medical group), you can still sue the doctors after settling with the hospital.

      The situation which would create problems would be settling with the agents (the doctors) and trying to preserve your right to sue the principal (the hospital). In most states, you wouldn’t be able to do this no matter how your release is worded, as the release of the agent, or active tortfeasor, automatically releases the principal, when the principal’s sole source of liability is vicariously through the agent.

      In the context of hospitals and doctors, most of the time malpractice claims against hospitals are based solely on the negligent actions of the doctors, who are either actual employees or the hospital, or (more often) are apparent agents of the hospital (meaning the hospital made you think that the doctors were employees). The legal principle of “vicarious liability”, also known as respondeat superior, holds an employer liable for the negligent acts of its employees (or apparent employees) under most circumstances. When vicarious liability applies, the employer itself need not commit an independent act of negligence to be held 100% liable for the negligence of its employee.

      Generally, you are safe to release the party that is only vicariously liable without fear of releasing the active tortfeasor as well (the other way around is the one that causes problems). However, be sure that your release expressly reserves your right to proceed with your claim against the other defendants.

  33. JH says:

    Thank You, the hospitals consent form says the doctors don’t work for them, but since the nurses gave the medication that killed the patient, I assume our attorney included the hospital as defendants.

    They gave a medication that in all the literature (the manufacture, the FDA) every where you look up Haldol it says don’t take it if you are allergic or have Parkinson’s decease and they gave it IV push, the FDA does not approve it for IV use in anyone. they gave it for agitation, when they could have just used a mitten, haldol blocks dopamine and dramatically worsens Parkinson’s and will cause aspiration and dysphagia, the patient had to be taken to ICU 24 hours later and then died 6 days later from complications of PD, which is aspiration and dysphagia and then your heart stops.

    Their experts declaration says it’s not contradicted for how they used it and since the time from administration to ICU was 24+ hours the medication did not cause it.
    We have a summary judgment hearing next week and trial is set for shortly after that our expert says they did breach the standard of care and it did cause his demise.
    In the summary hearing will the judge drop our case?
    At trial will a jury buy their experts opinion that it’s not contradicted when every piece of literature says it is, but they say it’s not?
    I know there is a tort max in California of 250K, but is the wrongful death action and separate med mal action on the complaint filed by the daughter as successor in interest and as an individual two separate awards?
    And lastly her brother is named as a defendant because he did not obtain counsel, does he have a say in if she settles and for how much?

    I so appreciate your comments and if you need further info to answer my questions I will post it for you.
    Thank You

    • fl_litig8r says:

      I really can’t say how your judge will rule on the summary judgment motion. Typically, as long as there are “disputed material facts”, summary judgment cannot be granted. When opposing experts disagree as to whether a standard of care has been met, that’s usually enough to constitute a disputed material fact, as a jury must weigh the credibility of the experts to resolve the dispute. Judges cannot weigh the credibility of witnesses when ruling on a summary judgment motion.

      Even though the medical literature says that the use of the drug under these circumstances was contraindicated, their expert can disagree. Of course, disagreeing with the majority of medical literature on the issue will likely hurt his credibility with the jury. His argument that the drug did not cause the complication due to the length of time from administration to the alleged side effect would concern me more. I’m assuming your expert disagrees and has an explanation for why the negative side effect showed up 24 hours after the drug was given. Juries don’t like coincidences, so unless their expert has some alternate theory as to why the patient took a turn for the worse, the administration of a contraindicated drug seems like a plausible explanation.

      I am not a California lawyer, so I can’t speak with authority as to how the med mal statutes and wrongful death act interact. However, my own research into the issue shows that the $250,000.00 cap on non-economic damages (pain and suffering and emotional distress) in med mal cases applies even in death cases. Keep in mind that wrongful death cases don’t arise in a vacuum. There has to be underlying negligence which caused the death. In your case, that underlying negligence just happened to be medical malpractice, which is subject to the cap. So, really these aren’t two separate claims — it’s a wrongful death case based on medical malpractice. You say that the daughter has brought a claim individually, but I’d have to see the complaint to know what the basis for such a claim is. It could be a “survival suit”, which is a claim brought by a survivor on behalf of the decedent which allow recovery of certain economic damages of the decedent (such as medical bills) incurred between the time of the malpractice and death, which might otherwise not be recoverable under the wrongful death statute. As long as the damages sought in this separate claim are purely economic damages, they will not be subject to the $250,000.00 cap, and won’t reduce the amount you can get under the wrongful death claim. Keep in mind that these are some pretty complicated issues, so definitely defer to your own lawyer, as he is better versed in California law, if his information differs from mine.

      As to the brother, here’s an area where California law could take a lesson from Florida (my state’s) law. In Florida, the only person who can bring a lawsuit for wrongful death is the personal representative of the estate of the decedent. This person is the single shot-caller for the litigation, and he alone makes the decision as to when to settle (though other survivors are entitled to recover, the personal representative pursues the claim on everyone’s behalf).

      In California, wrongful death cases can be brought by the estate’s personal representative, but they don’t have to be. As long as you are a certain type of relative, you can file the wrongful death case on your own. In this case, the two children of the decedent would each be able to file suit. I really can’t tell you how this plays out when one wants to settle and the other doesn’t. It may be that the daughter could settle on her own behalf, claiming her individual non-economic damages and the portion of the economic damages she would be entitled to from the estate. This would leave the son to pursue his claim on his own. This isn’t ideal for settlement talks, as defendants typically don’t like to settle with just one of several claimants. They like to resolve the whole matter at once, so the litigation ends. This question I’m going to have to completely defer to your lawyer, as I didn’t see an easy answer to it from my own research.

  34. JH says:

    Thank you Fi, the daughter(my wife) is admin of the estate, I will expand for lets say most of us (the layman) reading this post, aspiration pneumonia, takes a few hours to set in, its not like inject a drug and in 5 minutes the patient is comatose, Haldol is contradicted in PD because it blocks dopamine, without dopamine you cannot move, swallow, you choke, it basically is blocking your motor functions, which is what PD is, a lack of dopamine, when you see a pd patient shaking with tremors it is because his meds (parcopa) is giving him artificial dopamine otherwise he would be frozen solid, they gave her dad haldol on friday night and when she went to see him saturday morning he was choking and could not swallow, (if you look up haldol and aspiration pneumonia you will see it induces it, and dysphagia (cant swallow) hence the contradiction for a PD patient who is all ready prone to it) sunday AM he was in ICU on his death bed, he tripped and fell wednesday and needed a pin in his hip which was a 45 minute surgery he got on thursday he came out of it fine, I think they mistook his tremors for agitation and just gave him the med, whats funny is they also had no informed consent, in cali, you have to have written signed doc to admin a psychotropic med such has haldol, the lawyer has blown past that, but that under the law is battery.

    I sure hope we have the right Attorney

    • fl_litig8r says:

      Well, it sounds like you’ve got a good explanation as to why it took 24 hours from administration of the drug until the negative side effects became noticeable. When I said that would be an area of concern for me, I didn’t mean to imply that I had an opinion on the medical causation. I just meant that it would be an area I’d want my expert to cover, as it would be something a lay person would need explained. It sounds like your wife’s expert has provided this explanation. You are correct that medical treatment without informed consent (absent a few exceptions) is battery. A battery is any harmful or offensive contact for which you do not have consent. Of course, as with negligence, you still need to prove causation and damages for a battery claim.

      I hope your wife has a good lawyer, as well. Med mal cases, especially this age of so-called tort reform, are particularly tough for plaintiff’s lawyers to pursue.

  35. JH says:

    Thanks again for your comment:
    Cali law clearly states “To be free from psychotherapeutic drugs and physical restraints used for the purpose of patient discipline or staff convenience and to be free from psychotherapeutic drugs used as a chemical restraint as defined in Section 72018”
    “Voluntary patients have an explicit right to accept or refuse antipsychotic medication after being fully informed of the risks and benefits except in a statutorily-defined emergency. (9 C.C.R. §§ 850-856).”
    They gave him the med for agitation, thats a chemical restraint.

    We had elder abuse in our complaint our lawyer and their lawyer went around about it with the judge and she dropped the elder abuse cause, our lawyer said it would get costly and we might not prevail so he didn’t appeal it, but I have yet to see him mention the lack of informed consent for the specific med, which is clearly battery, he said giving that med falls under your normal surgery consent, but as you can see cali law says differently, they were more arguing are doctors in a hospital setting subject to elder abuse claims, again though the law clearly states anyone in charge of the care of an elder is subject to it.

    I’m kinda frustrated I have done all the fact finding and presented 100’s of pages of info to our lawyer (thats what got him to take our case) we paid the med expert, I have talked to a dozen doctors and even the Administrative Director, Co-Director, Center for Movement Disorders and Neurorestoration.
    All of them have paraphrased this “Haloperidol (Haldol) is a common antipsychotic drug that is used in hospital settings. This drug blocks dopamine receptors and worsens Parkinson’s disease.”

    My lawyer has told me several times if I had a medical degree I would be the best med expert witness we could get, since I have been studying it for two years.

    I am shooting for at least gross negligence since the doctors declaration say they were fully aware of his PD, I would like to keep punitive damages on the table, one doctor told me this:
    If I don’t read your chart and give you a med you should not have, thats negligence, because I did not read your chart.
    If I do read your chart and give you a med you should not have and it harms you, thats gross negligence, because I was fully aware it could harm you, and I ignored a FDA black box warning label as well on the route I used to administer it with.

    I don’t see how in front of a jury we can loose, unless our lawyer blows it, my opening statement would nail them, their expert has nothing to back his opinion with, and causation is pretty clearly defined FYI his death cert states 1. heart attack (duh)2. aspiration pneumonia 3. dysphagia 4. advanced PD. advanced PD (stage 5) the patient is frozen solid inside and out,(he was) you cant breath and cant swallow and what you do swallow goes into your lungs (aspiration pneumonia and dysphagia) Ironically 10 days before his fall and hospital stay, he was living alone in a two story home, shopping, laundry, driving his car. the day he tripped on his suit case he was putting it in his car to make the 100 mile drive each way to my house to see my wife and kids (stage two PD)

    I thank you again for letting me bend your ear on this topic

    • fl_litig8r says:

      I can think of one way you can lose: you get a bad jury. Never get so confident in your case that you lose sight of this possibility. Remember the OJ case.

  36. JH says:

    Yeah thats my thought too, OJ, Casey Anthony, I can see us loosing just because people hold doctors up on pedestals, well Conrad Murray excluded, our case is a little different MJ wasn’t allergic to Propofol, on that case I still agree with the defense, what he did was straight up med/mal otherwise in all my research, I know of 1000 doctors that should be in jail.
    Does voir dire apply in civil cases?
    I still think the defense will cave in and want to go to mediation, once the judge dismisses their summary judgement action, since I think only about 2-5% of these cases make it to trial.
    I know our lawyer has not shown them his hand yet, but in their declaration they clearly put their foot in their mouths and state haldol is not contradicted for PD, I have spent two years scouring every medical journal, both manufactures of the drug, all the physicians desk references, the FDA, everything says do not take if you are allergic or have PD.

    This is interesting:
    “Contraindication: A condition which makes a particular treatment or procedure inadvisable. A contraindication may be absolute or relative.
    An absolute contraindication is a situation which makes a particular treatment or procedure absolutely inadvisable. In a baby, for example,aspirin is absolutely contraindicated because of the danger that aspirin will cause Reye syndrome.
    A relative contraindication is a condition which makes a particular treatment or procedure somewhat inadvisable but does not rule it out. For example, X-rays in pregnancy are relatively contraindicated (because of concern for the developing fetus) unless the X-rays are absolutely necessary.
    A contraindication is literally contra- (against) an indication, against something that is indicated as advisable or necessary”.

    So I guess the difference would be was Haldol “absolutely necessary”. I would tend to think it is “absolute” because of the danger of worsening Parkinson’s symptoms (there is no maybe it will maybe it wont, Parkinson’s is based on a lack of dopamine, Haldol blocks dopamine) with the desired outcome to simply calm someone and it was the doctors “go to” drug of choice, if they had tried their alternatives and as a last resort went to Haldol, maybe they could make that argument, if they would have used a physical restraint instead of chemical restraint, I would bet her dad would still be alive.

    I could post a list of a 100 meds that would “calm” a bull elephant, my question is why pick the one that will advance a patients decease. I am sure that is in our depositions to them. Its like I take you from stage 1 cancer to stage 4 in my attempt to have you be calm, most of the time calm in a hospital setting is so the staff does not have to fuss with you, when you go into a nursing home and see folks slummed in their chairs thats the good ol Ativan/Haldol cocktail

    allot of it boils down to internal med docs know very little about PD, I have had many tell me that, they could have easily consulted one of their neurologists, but didn’t.

    Its kinda like you have an infection in your leg, instead of giving you a antibiotic first they just cut your leg off.

    After my wife found out what haldol was and told them to stop giving it, the head nurse flubbed up and told my wife “yeah our pharmacist said not to either”

    I really appreciate your input, thank you again.

  37. Jenny says:

    My lawyer has officially withdrawn, and I finally got my hands on my case file. And proceeded to want to throw up in my own mouth. After going through EVERYTHING, piece by piece, I think the only conclusion I can come to is that this tool did basically nothing for me. Yes, he filed some papers, sent off some correspondence, but I see nowhere in the file where he actually did any investigative work at all. Nothing. Though there is documentation regarding the defendant’s discovery requests, I see NO documentation regarding ours. Not one single thing. Not only that, but it also looks like the little work he did do was not really started until almost 2 years after he took the case! Up until that point, there is nothing but a few letters and authorization forms signed by me.

    My case is now going to be looked at by some other interested attorneys. My prayer is that they are able to still save this case, because it is so far along now that if the judge won’t allow discovery to be extended, etc., then I fear I don’t have a shot. My new lawyer needs time to get up to speed and repair the damage, and if the judge won’t allow it, then I, myself, am in doubt about our chances. He just didn’t do anything. One example of his work… in my mediation he said that he didn’t know if my insurance company had subrogation. Not true! He had letters in the file from them, very clearly going over the subrogation!

    One thing I learned from this… cannot have blind trust in someone, especially when you have doubts! There were several times over the last 3 years that I was bothered by what he was/was not doing, but I said nothing to him at the time. Probably the biggest reason is because I thought maybe I was the one in error and that he really was doing things behind the scenes. And also because I trusted despite my misgivings. I didn’t want to be a bothersome client. I kept looking at his credentials displayed on his wall and then doubting myself. I mean, he’s a lawyer, right? I’m his client….surely he wants to win my case so that he gets a good chunk for his firm, right? Now, all I can really think is that he took the case figuring that he could put little effort into it, that the insurance company would throw us some money…enough for him to make a smaller chunk and leave nothing to actually help me. Like you said…”settlement mills”. I had no idea this was a possibility.

    If I can give any advice to anyone reading visiting this site it’s this…..don’t just trust that your attorney is doing all they can. Make regular requests to see the file! Not to the point of being annoying, but enough to let him/her know that you are holding them accountable. Especially if you are having doubts! Otherwise, you could find yourself in my situation. After 3 years of having hope and being led to believe that things were A-OK, it is a tremendous blow to find out it’s not. Those of us that have been badly injured have suffered enough. To have suffering at the hands of a “professional” that you trusted is egregious.

    • fl_litig8r says:

      I wish you luck in finding a new lawyer. Hopefully, your old lawyer didn’t do any permanent damage to your case (aside from the needless delay he’s already caused).

  38. Jenny says:

    Hey there….was wondering if I could pick your brain again. So here’s where I’m at…..thus far I have not been successful in getting a new attorney. Every one that I have talked to has basically said that had they been my attorney originally, things would be different, but because there is still a summary judgement decision pending, they were going to pass…which I totally understand. Which brings me to my problem. I received in the mail an order to appear at a pretrial settlement conference next week. I got the letter about 3 weeks ago. When I received it, naturally I was confused because I am STILL waiting for the results of the summary judgement. I called the number given to speak with the judge’s administrator. It took me about five times of calling over a period of days before anyone ever answered the phone, despite the fact that I did leave two voicemail messages. He told me that my order was the next order he was working on, and that it would go out by June 1. Well, here it is June 7, and I still have not received it. I’ve been trying to call for the last two days and nobody ever answers the phone. Is there anything that you can suggest for me to do? I certainly cannot go to a pretrial settlement conference without a lawyer. (And actually, how can they even be scheduling this if the judge STILL hasn’t even made a decision regarding summary judgement?) But I can’t get a lawyer without knowing what the judge’s decision was. I don’t know what to do! How do I even get this conference postponed? I can just see it now….she releases her decision one day before the conference. I can’t tell you how floored I am by all of this. Does the system even care about me, the plaintiff? What am I supposed to do? If I don’t show up, the case gets thrown out. And maybe it will anyway with her summary judgement. I honestly don’t know. But let’s say it doesn’t get thrown out. How does one ask the judge for more time to find someone to help me?

    Any input would be appreciated. Thanks!

    • fl_litig8r says:

      I’ve had some judges actually set a trial date while summary judgment was pending, basically forcing both sides to do almost all of their trial prep while not knowing whether there would actually be a trial. I think they sometimes do this just to see if they can force a settlement and clear their dockets.

      In your case, though, setting a pretrial settlement conference wouldn’t really require that much work from either side (seeing that you already mediated) so I doubt that your judge is trying to use the threat of additional work to create a settlement. It really could mean any number of things. He could be doing you a favor by giving you one last shot to get money before he rules against you. He may be doing the defense a favor by giving them a chance to settle for less money before he rules against them. He may think that settlement is more likely when the risk of how he’ll rule on summary judgment is still hanging over the heads of both parties. It’s hard to know without knowing the judge.

      The only way to postpone the settlement conference would be to file an emergency motion (“emergency” because there’s so little time to rule on it) asking the judge to postpone the conference until “x” days after he issues his order on the summary judgment motion. You could entitle it something like “Emergency Motion to Postpone Pretrial Settlement Conference”. It doesn’t have to be long. It just has to set forth grounds for the motion. Using numbered paragraphs, tell the court that: 1) You’ve made a diligent, good faith effort to retain substitute counsel, but thusfar have been unable due to the pending summary judgment motion; 2) You believe that you will be able to retain counsel after the ruling, assuming you prevail; 3) You believe that having an attorney at such a conference would improve the odds of a settlement being reached; 4) You do not feel that having a settlement conference prior to the summary judgment ruling would be productive, as you feel that your mediation impassed largely due to the summary judgment issue being unresolved. Then end with your request for relief: WHEREFORE, Plaintiff requests that the court cancel the pretrial settlement conference currently scheduled for [date] and reschedule it for no sooner than “X” days after it enters an order on Defendant’s Motion for Summary Judgment, by which time Plaintiff expects to be able to retain new counsel. You need to finish with a Certificate of Service (just copy one of the ones your old lawyer used on a discovery response or something).

      You’d file this with the court, mail it (and fax, if possible) to opposing counsel, and also send a copy directly to the judge (preferably by fax to save time). Don’t count on the judge seeing it in time if you don’t send him a copy directly. The judge may or may not rule on such a motion in time — the sooner you do it the better. If he doesn’t rule, you still have to show up to the conference.

      The worst thing that could happen is that you waste your time at the pretrial settlement conference. The judge can’t force you to settle any more than the mediator could. If the defense still doesn’t offer an acceptable amount, you don’t settle. Then the worst thing that could happen is to lose on the summary judgment motion. Of course, seeing that they didn’t offer much of anything at mediation, you wouldn’t be losing out on much.

      One final thought: does your court have an online docket? If it does, you could look up your case each day to see if the judge ruled on the summary judgment motion (though these dockets can sometimes lag by a few days, depending on the efficiency of the court staff). Look up your county clerk of court’s website to see. Many times they are free (but not always).

  39. Jim weaver says:

    Hi, I appreciate any help you may offer.

    I settled a lawsuit I had against the BSA in mediation. I was molested several times by a scoutmaster back in early 70’s. At depositions and mediation the BSA said they were just as much a victim as me because they were not aware of the perpitrator. They denied the exsistance of (or said he was not on the list) the perverted files list that is going to soon be released by supreme court order. If the perps name is on the list prior to my being attacked can I somehow have the mediation agreement overturned, reopened, sue again, etc due to fraud or purgery they may have commeted during depositions? I settled for pennies on the dollar because my attorney did not want to go to court or did not have the resourses to make them disclose the perverted list to us like they did in Oregon.

    • fl_litig8r says:

      You’re probably going to have a hard time finding a lawyer willing to try to void the settlement, but there are some factors that will make your case more attractive. First, it’s important to nail down whether the BSA denied that your scoutmaster was in the files or whether it denied the existence of the perversion files entirely. If it only denied that your scoutmaster was in the files, and it turns out he wasn’t, you wouldn’t have grounds to contest the settlement.

      If however, it denied the existence of the files, we already know that to be a lie. The it becomes an issue of whether the lie was in a deposition or just at mediation. If it was in a deposition, then you have absolute proof of the denial, coupled with the fact that it was under oath. This strengthens a potential fraud claim. If the denial was only made during mediation, you have not only the issue of proving that the denial was actually made, but the even greater problem of the fact that mediation discussions are confidential, and therefore not admissible in almost all circumstances.

      Of course, your strongest case would be if the BSA denied that your scoutmaster was in the perversion files, and it turns out he was (prior to your incident). Again, whether this denial was made in a deposition versus during mediation makes a huge difference.

      There are other hurdles you’ll likely face in trying to void your settlement. How long ago your case settled, coupled with when you either knew or should have known of the alleged fraud, will be key issues. Before you call around looking for a lawyer, you should probably gather the depos from your case and find out whether your scoutmaster was included in the perversion files. Knowing these things could make a big difference in convincing a lawyer to take your case (or convincing you that it is not worth pursuing). I wish you luck.

      • Jim weaver says:

        Thank you so much! Your input is much more encouraging than my attorny that handled the case.
        I have been waiting a long time for this supreme court decision to release the perverted list. I could not do anything sooner without this list. It’s actually fairly big news. I will let you know as I find out information. This may turn out to be a very interesting case.

        Thanks again!

        • Jim weaver says:

          I had a ca att tell me there is a ca law #51. Basically stating one cannot go after party for fraud in depo, letigation, etc. Does what you wrote apply to California and this attorney is misinformed?

          Thank you again!

          • fl_litig8r says:

            Well, first, there is no “ca law #51”. That’s not how California’s statutes are organized. There is a California Civil Code Section 51, which is the Unruh Civil Rights Act — but that’s an anti-discrimination law. So, unless you can cite me a specific statute, I can’t say what it does or doesn’t say.

            I’m not sure what you mean by “go after” a party for fraud in a deposition or litigation. Seek criminal prosecution for perjury? That’s highly unlikely to happen (especially for lies in civil cases), but it’s certainly a possibility when one lies under oath. Sue that person separately for fraud? If you couldn’t prove that the person lied during the initial litigation, how would you plan to win a fraud case? If you did prove that the person lied during the initial litigation, then you really didn’t suffer damages as a result of the lie, making a fraud case worthless.

            I doubt that there’s a specific law protecting people who lie during litigation. It’s more likely that it’s just impractical to handle such a situation through a third party proceeding. It should be handled in the initial lawsuit through impeachment and production of contrary evidence. If you lose a lawsuit to someone, and then try to sue them again under the theory that the person lied in the initial suit, most of the time these claims will be barred by a common law doctrine known as res judicata (which prevents a party from suing another party multiple times for the same thing).

            As to your question about “what I wrote”, please be more specific. I wrote a lot.

  40. Zack says:

    Thank you for this site an education. My issue or confusion is. My lawyer split my case this is our second case together an the first was very pleasing. This time he sent my pip insurance suit to a different lawyer and had followed through an settled a law suit with the drunk driver that hit me. i have several herniated and bulging disc under my skull . my case with the drunk driver setlled for 90,000 but i havent received the money theyy had me sign the release 2months ago said it would take this long to cut the check. Now the other lawyer contacting me to go in for arbitration for the pip since they didnt pay my medical. i wasnt working but attended school the year of the accident. I am wondering is this arbitration gonna reward me money an was my lawyer bieng honest? And is this money gonna be added to the settlement i just won? I am worried this is getting set up where i wont get anything since i have yet to see any money. I have the pip arbitration next week.Thank you any information would help

    • fl_litig8r says:

      The PIP arbitration should have no effect on the settlement of your case against the other driver. The PIP case will only address the issue of your insurer not paying medical bills submitted to it which are reasonable and related to your accident (in most states, your lawyer recovers attorney’s fees in addition to those bills).

      As to your first lawsuit, I recommend reading this article, which explains why it can take a while to get paid after a case settles. If your lawyer has received the settlement check (you need to ask him), he is probably trying to settle and medical or insurance liens you accumulated. This needs to be done before he can disburse all of the settlement money — including his own fee. He may be able to issue you a partial distribution of the settlement money and just hold back enough to be sure to cover the liens. After the liens are resolved, he would pay you whatever is left over.

      • Zack says:

        Thank you so much. My liens are under 10,000. My lawyer is a judge we are in nj an i figured 3 months would be enough time. I just finished my pip mediation 2 days ago. I guess i should call. I didnt want to annoy theI knew it may take a while but this seems way longer than expected. But another question i was wondering is if i go take the check to the bank they use which is chase would i be able to get my money faster than depositing an waiting a month or so? I appreciate your help this site is amazing you really are doing good work.Kudos

        • fl_litig8r says:

          I’m not sure if Chase would have any issue cashing such a large check, but in most cases it would be quicker than waiting for it to clear your account (through it really shouldn’t take a month to clear your own account — it should be a few days, at most).

          • Zack says:

            Thank you. I dont know whats goin on they told me the day after your response that the medicaid was checked it wasnt charged but now its a week later they still havent cut the check. They also told me last time i called that they checked medicaid last month but did it again when i called. I dont feel any sense of urgency. But I appreciate your help. I guess Im stuck waiting.

  41. rob says:

    My lawyer just told me that four months ago a settlement offer was presented to him, and declined by him, and he never told me! He thought it was too low. I should just be happy about that right? But it bothers me I wasn’t even informed. Is that legal? And other than telling him I want to be in the loop going forward is there anything else I should do? Thnx

    • fl_litig8r says:

      Unless you had previously given your lawyer a “bottom line” settlement number, he should not have rejected any offer without your consent. Letting him know that you want to hear all offers, no matter how small, was the right thing to do (though he should have known that already). If you do give your lawyer a bottom line number, he can reject offers below that amount without consulting you. This is common when negotiations heat up, as they can expedite the process — nothing is more frustrating than being unable to contact a client when offers are being exchanged and settlement is close.

  42. Lelia Walker says:

    Hello. I have a question. Hopefully it is not a long one, forgive me if it is.
    For the last 6 months or so I have been under workers comp. I hurt my ankle while driving for my job. I started out with one doctor who then sent me to another who sent me to another. The first dr I saw put a sleeve on my foot for 3 weeks or more. Then he sent me to the next dr because I was not healing. This next dr put my in a boot for a few months and then sent for a MRI and then sent me to a PT after he injected me with cortozon…after 6 visits with the PT I was then told I have done everything but put you in a cast. So he sent me to a othoroptic surgeon. I was told that I have achilles tendionits and post tibial tendiontis, then he put me in a cast for 3 weeks, once it was removed he started putting me on more painkillers and hasn’t stopped yet. He then sent me back to work in a cast and a boot on light duty…He sent me for an MRI and a bone scan and wont tell me the results. He just told me that it was negative…I just dont know of what…Everytime I see him he is giving me different painkillers and send me on my way. I am now out of the boot and on one crutch, but the fact still remains that he is doing nothing but medicating me. My last visit he said he wanted me to get nerve blockers. I am a type 2 diabetic, and although it is controlled through my diet, I do not want to loose the sensation of pain in my feet in case I step on something and injure my foot. However, he said either I get them or he is sending me back to work just the way I am. When I asked him what is wrong with me, he says “I dont know what is wrong with you, I’m just treating you for pain” that statement made me go to a lawyer and file suit. Was I wrong for doing that? Now I have seen the pain clinic and he states that I am at the end of my treatment that all I am feeling now is muscle tightness and that I should go to PT again to strengthen my leg, but with my ankle still being undiagnoised I fear that I will be in much more pain than I am now. How should I bring that up in any manor without loosing anything I need? (like my workers comp checks, and dr care in the proper way)

    • fl_litig8r says:

      I’m not a comp lawyer, so this question really needs to be directed to your own lawyer. You were definitely not wrong in hiring a lawyer after getting the runaround from these doctors. From that one doctor’s statement of “I don’t know what’s wrong with you. I’m just treating you for pain”, it sounds like he might think that you’re malingering. If that’s the case, then obviously he won’t put forth any effort to find the cause of your pain — because he likely believes that there is no cause. It sounds like your objective tests (MRI, bone scan) didn’t show anything the doctors could identify, so they assume that it’s just a soft tissue injury that will resolve itself through PT and meds, or that you’re faking it, and they’re just “going through the motions” of treating you. See if your lawyer has the records from the comp doctors, as these should be more honest about how they feel about your injury then they are letting on to you in person.

      • Lelia Walker says:

        I can not see how he thinks I am putting on so to speak, because everytime I go in to see him I am swollen. Not to mention when I lost complete feeling in my toe and he stabbed me repeatedly that in it’s self should have told him that I am not playing. This is a sad case indeed. The lawyer I hired has even seen with her own eyes that I am not faking. I was really swollen when I saw her also. This is sad. Thank you for your help.

        • fl_litig8r says:

          I was just making an educated guess about the doctor thinking that you were malingering. I could be wrong, and he could just be clueless as to what’s wrong with you.

          • Lelia Walker says:

            Thank you so much. I believe that you could be right. He doesn’t seem to care about really treating me. Just collecting a check on my behalf and that’s all. I truly do appreciate you for answering my question. I think if he really believed me or even cared, he would still be trying to find the problem and fixing it, not just treating me for pain. I guess I am just upset at this whole’s been since March and I am just tired of not knowing what is wrong with me. Thank you again for your help.

  43. Tammy says:

    First off, I have never been involved in a legal situation so I am not even sure of what I am doing here. I stumbled across this site by accident and hoping you can give me some perspective.
    I live in TX. I was in a car accident a little over a month ago. The at fault party ran a red light, causing me to slam into her vehicle and then causing us both to collide with 2 other cars. I was driving my father’s car. It was totaled. My wrist was badly bruised and very sore and swollen, but I didn’t think there was Really anything wrong with it. A week later, there was still a huge bump and pain shooting up my arm, so I went to the dr and was told it was a Ganglion Cyst caused by the trauma of the accident. I was told it would take several weeks, maybe months to completely disappear. To treat it with moist heat and ibuprofen and most times, this is enough, but that there are some cases that require a drainage of the cyst and if it reoccurs , surgery may be necessary to remove it. I work in an office as an admin assistant/bookkeeper, so you can imagine the daily workout my wrists get. Thank goodness it was not my dominant hand. There are days when the swelling extends to a couple of my fingers and it’s painful to bend them. I am hoping and praying that with time, this will pass and that no surgery will be required.
    Here is my problem. The at fault driver had no insurance. My father had uninsured motorist coverage. The claims adjustor called me today to check on my wrist and to ask if I had received all my medical bills yet. I told him I had only received one. He advised me to go ahead and bring that one by his office and as I received the others, they would pay those, too. And then he moved on to discuss a PIP settlement. I was not expecting nor prepared for this. I was under the impression that basically, they would pay any medical bills I had and that later, if there was a problem, I would be able to “re-open” the claim, so to speak. But he went on to explain that the bills I received would be paid and that completely separate from that, would be the PIP payment. He then offered me $1,000. I told him I would have to discuss wiht my father, as I had never been in this situation before. He said that was fine, but would be out of the office for the rest of the week and any decision made past today would not be able to be dealt with until next week. However, if I decided to take the offer, they could have the paperwork drawn up right away, but that it also meant that I was agreeing that the case was Settled.
    I wasnt’ comfortable with this, because, I am not sure if surgery will be needed 6 mos or a year from now.. The accident occ,ured Sept 28th. When I asked my father, he said I should ask for, $15,000.00 to start with. I am not comfortable requesting a number like that, but at the same time, should surgery be needed, it will run atleast $7,000 with a 6 week recovery period, return dr visits, physical therapy, etc. I am a single mom and there is no way I would be able to afford this, even with my medical insurance paying for some of it.
    I was using my dad’s car that week because he had a friend who was going to repair my transmission for cheap and allow me to make payments, but he was also going to work on it after his regular job, so it was going to take a couple of weeks. Now I am driving my vehicle, without the repair, due to not having the “extra ” vehicle available to borrow….
    Is 15,000 an unrealistic amount to even throw out there, or are they the ones who should be ashamed? I honestly thought this guy was being a “nice guy”… but now am wondering if he was not just playing a part to save his company some major $$. Any direction you could give me on this wuold be GREATLY appreciated.

    I have trouble even asking my boss to “cash in” vacation days for me, even though they are rightfully mine… so, that may give you some idea of how difficult a # like this is for me to request.

    • fl_litig8r says:

      To be honest, I don’t think you’re in a position right now to fairly evaluate your claim’s value, because you haven’t reached maximum medical improvement. With the issue of surgery still up in the air, you shouldn’t rush a settlement, at least as to your UM claim.

      Your PIP insurance should pay for your medical bills as they accrue (usually at 80%, but check your policy to see if your PIP may pay a different percentage), and shouldn’t be considered “settled” unless you run out of coverage or you stop accruing medical bills — PIP also usually pays a certain percentage of your lost wages (often 60%), so again you should check your policy about that.

      So, while I see no problem with your insurer paying your medical bills and lost wages on an ongoing basis right now, you shouldn’t settle either the PIP or UM claim entirely until you know what your future medical needs will be. Really, your insurer shouldn’t be trying to settle your PIP claim at all, as it’s expected to pay these benefits out as your medical bills come in and your lost wages occur — this claim stays open until the coverage runs out or you no longer need it.

      I suggest you take some time to read my articles on how much your lawsuit is worth and how to settle your own case before doing anything else. It wouldn’t hurt to get a free consultation from a local lawyer, either, even if you don’t wind up hiring one.

  44. Rick says:

    Hello. Great site, thanks. We demanded 300,000 and hoped to end up around 200,000. But the adjuster came back with an offer of 75k. This may be because there is a gap in my treatment. I was dismissed from PT with the expectation that my knee would be better a few months later, but that didn’t happen. Another round of PT including wearing a brace that incrementally (and painfully) straightened my leg was prescribed. I am at MMI now with residual pain and a leg that isn’t fully straight. The adjuster’s offer already puts the middle number lower than our hope for the outcome. Any suggestions?

    • fl_litig8r says:

      Assuming that your case is really worth $200,000.00, you could just counter with a small move, say to $275,000.00 and see what the insurer’s next offer is. If it comes up to $125,000.00, then you’re back in business (as the middle is now $200,000.00). If it doesn’t, you could continue to counter with numbers than don’t go down as much as the insurer’s offer has gone up, in an attempt to pull the middle number up. So, if it increases its offer by $25,000.00, your next move could be to decrease your last offer by $10,000.00. If it won’t increase its offers by an amount that exceeds your decreases, you’ll probably have to litigate to get your $200,000.00.

      It’s really hard to say whether you won’t reach your $200,000.00 goal just from initial offers, so don’t panic yet. It may help to provide new information (or emphasize information the insurer may be overlooking) with your counter-offer to get the insurer to move more. If you haven’t already, maybe include a picture of the leg, assuming that the fact that it isn’t straight is visible. If you can’t perform your job any more, play up the wage loss claim based on having to find a new job that meets your limitations in a terrible economy. Each time you make a new offer, throw something else at them — the pain of the therapy, the inability to do physical activities you used to enjoy, emotional distress due to depression, etc.

  45. Vicky says:

    From where does the mediator get his/her paycheck??
    Thanks! Awesome site that has been helping me through each step in this crazy process!!

    • fl_litig8r says:

      The standard agreement for mediation is for each side to pay its share of the mediator’s hourly rates. So, when it’s just two parties (one plaintiff and one defendant), each side pays half. Sometimes, as part of a settlement agreement, the defendant will agree to pay all mediation costs — this is common, but it is not the norm.

      A plaintiff’s lawyer will typically pay the cost of mediation out of his own pocket up front and then recover this cost as part of his expenses from the settlement.

  46. Accident Victim on the East Coast says:

    Dear Sir:
    I have some mediation questions. Will I be given time to relate my experience and the details of my traumatic injury to the adjuster during mediation? Or, do I keep my mouth shut and allow the Attorney to do all the talking to the adjuster and the mediator? How long will it take to actually schedule the mediation. Weeks, months? Is it difficult for the attorneys on both sides to agree on a mediator? I signed a POA to my attorney to sign my documents, including the release. What is the normal procedure as far as signing the release is concerned? Will the insurance company want me to sign the release?
    Have you found that the defendant will get upset if their Insurance company does not settle and the defendant is brought to court? If I were the defendant, I would be upset if my insurance company refuses to settle for a fair amount. Can the defendant influence the insurance company?

    • fl_litig8r says:

      Normally, your lawyer does all of the talking during the joint session of mediation. However, if you really want to speak for yourself on a particular subject, you should let your lawyer know (whether this is a good idea is something I can’t say, because that will depend on a number of factors I can’t evaluate — like how well you speak, no offense). I can’t really recall a time when I had one of my clients speak directly to the other side at a mediation (other than pleasantries), but I do discuss the mediation with them beforehand and incorporate any points they wish to make in my own presentation.

      The scheduling of a mediation is really specific to the case. Assuming both sides want to mediate, you need to find either a half or whole day of availability on the mediator’s calendar, (at least) two lawyers’ calendars, your calendar and the calendar of the insurance adjuster. Some times you get lucky and everyone has an early date open. Everyone has an incentive to schedule it as quickly as possible (assuming the insurer really wants to settle), so normally you’re not waiting months after the decision to mediate is made.

      If both attorneys have regularly practiced in the geographical region where the mediation will be held, usually choosing a mediator is a no-brainer. Even in unfamiliar territory, this is rarely a point of contention. It shouldn’t cause any delays.

      I would expect that if your case settles, the insurer will want you to sign the release, regardless of whether your lawyer has a POA (I’m hoping that this POA doesn’t grant him authority to settle the case without your approval — that would be a bad idea). Why would they want an added layer of complexity and potential contention added when you are available to sign it yourself? As for the process of signing the release, it’s pretty simple. The defendant sends a draft to your lawyer, who then reviews it for accuracy. If he requires revisions, it can go back and forth a few times, but ultimately he’ll get a copy for you to sign. Sometimes it will require a notary or witnesses. Depending on your convenience, you can sign it at his office or he can mail (or e-mail) it to you and then you mail (he’ll need the original signature, so no e-mail here) it back.

      Sometimes, though not often in my own experience, a defendant may bring a release to the mediation and it gets revised (if necessary) and signed right then and there.

      I changed the last part of your question because you said “plaintiff” when I’m sure you mean “defendant”. Often, defendants don’t personally get involved in settlement discussions (except doctors in med mal cases, due to effects on their licensing; and defendants who have insurance that requires them to pay X amount out of pocket before their insurance kicks in). A defendant can pressure his insurer to settle if the case can be settled within policy limits, but the insurer wants to roll the dice at trial (where a judgment exceeding policy limits could occur, resulting in a personal judgment against the defendant for that excess amount). Usually, the insurer is well aware of the risk of being sued for bad faith if it screws over its insured like that, and it doesn’t need any prodding by its insured to try to settle within policy limits.

      So, while in theory, a defendant can influence a settlement if there is a risk of the insurer committing bad faith, in practice, most of the time the defendant has no real input into the settlement process. His insurance contract gives the insurer the right and duty to defend and/or settle the case as it deems reasonable.

      • Accident Victim on the East Coast says:

        Thanks so much for your response.
        In your experience, would the victim talk to the mediator during the private session. Or, would the victim talk to their attorney to relate an opinion only during the private session, when the mediator is out of the room and talking to the other side? I would not want to be rude to my own attorney by talking out of place.

        Yes, I did mean defendant as far as influencing the Insurance Company.

        • fl_litig8r says:

          The plaintiff can and often does talk to the mediator directly in the private sessions. Because your lawyer can always tell the mediator not to disclose something to the other side, there’s not much risk of you saying something that will hurt your case. While you should let your lawyer take the lead, he shouldn’t find it annoying if you participate in the discussions with the mediator during the private sessions.

  47. Nefa says:

    How can a plaintiff tell if the mediator is NOT neutral? I would assume most mediators want to stay on the good side of the Insurance Company, due to the fact that most of their business comes from Insurance Company requests.

    • fl_litig8r says:

      Actually, mediators’ fees are split among all the parties (including the plaintiff), so they typically want to be as neutral as possible. Also, if a mediator gets a reputation for bias against plaintiffs, no plaintiffs’ attorneys will agree to use him. As to who “requests” a mediation, both sides are usually interested in this, so it really doesn’t matter who suggests it first.

  48. Monica says:

    Hi! In a pre-mediation meeting my lawyer spoke of a Supreme Court case that may affect my case. He said it is a case that was decided on but may be revisited and involves the amount of medical expenses that insurance can be held accountable for. He said if a decision is made that medical expenses are paid back at the amount the insurance actually paid out versus the amount providers billed then my case (which goes to mediation next week or trial in early 2014) could be subject to appeal. What can you tell me about this and what sort of research if any do I need to do prior to mediation? Thanks for any help!!

    • fl_litig8r says:

      I suspect that you may have misunderstood what he said. I can’t imagine any case requiring a health insurer to be repaid an amount more than it paid for medical care related to a lawsuit. It just doesn’t make any sense. I suspect that he was referring to what type of evidence of your damages can be presented to a jury. Some jurisdictions only allow you to present the amount paid by your health insurer and not the full amount billed by the provider, the theory being that you should not be allowed to recover more than was actually paid for your treatment. This presents some issues for plaintiffs, as those who have insurers who receive large contractual reductions (like Medicare) may give the jury an artificially lower view of the medical costs incurred — and medical costs are often a factor used by jurors in determining a plaintiff’s pain and suffering damages.

      In theory, you could have two plaintiffs with identical injuries and medical treatment, but grossly different damages awards (both economic and non-economic) due to them having insurers who receive different contractual reductions from the medical providers. Of course, plaintiffs’ lawyers argue that the full bills should be presented to the jury even in jurisdictions which only allow the jury to award the amount the insurer paid, if only to give the jury a better picture of the extent of treatment provided, and a better reference from which to calculate pain and suffering damages.

      I’m guessing that your state supreme court has a case before it that will decide either: (1) whether the jury gets to see the full medical bills or just the amounts the insurer paid or (2) whether the jury gets to award the full amount of the bills regardless of what the insurer paid. You’ll need to get clarification of this from your lawyer.

      As to research before your mediation, I wouldn’t expect that you would need to do any. Your lawyer will likely do all the talking (aside from when you are alone and you are just talking to him and possibly the mediator). It’s not like a deposition where you’ll have to tell your story. Your lawyer will handle this for you.

  49. wayne jennings says:

    A truck crash case. I was not at fault. Insurance made an offer I refused. My lawyer sued. Why is the defendant’s attorney requesting my entire life history and requesting to access my life – schools, military career, years of tax returns, social security records, and much more. Can someone tell why. Thanks in advance.

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