Unhappy With Your Settlement and Want to Get Out of It?

Tearing up Settlement

So you’ve settled your personal injury claim and you now have a huge case of buyer’s remorse. You wish there was something you could do to get out of that agreement. In most cases, as long as you orally gave your lawyer authority to settle for a certain amount on your behalf, there isn’t anything you can do. However, in some there is. Before doing anything rash, I strongly advise discussing the matter with your lawyer. There may be something he can do to satisfy you, such as agreeing to a reduced fee. He may be able to explain to you why you didn’t receive as much as you thought you would. One thing is certain, though. He will not want to try to get out of the settlement, and usually for good reason.

Unhappy With Your Settlement? Why?

Clearly, if you are unhappy with your settlement it is because you received less than the amount you wanted after attorney’s fees, costs, and medical liens (including a lien by your health insurer) were taken out. There are any number of reasons why this would happen. First, the defendant may not have had adequate insurance to cover your damages. If you have $60,000.00 in damages, but the defendant only has $50,000.00 in liability insurance, there’s not a whole lot you can do to make up that $10,000.00 shortfall. In most cases, it is simply not worth it to sue the defendant individually for the remaining damages, as most people with inadequate insurance coverage can’t afford to pay a judgment. If this is your problem, you’re going to have to suck it up. You got the most you could, and getting out of your settlement won’t change that. The best you can hope for is that your attorney may reduce his fee. Note that he does not have to do this, so don’t try to strong-arm him into it. Play to his sympathy, and hope that he can cut you a break.

Another reason you may be getting less than you wanted is that you overtreated. Put simply, you went to the doctor (or chiropractor) more than was reasonable, given your injuries. $20,000.00 in chiropractor bills for a whiplash injury is too much. If you find yourself in this situation, your lawyer can try to get the medical provider to reduce his bill. It would behoove you to apply pressure to the medical provider as well. After all, you were just following the provider’s advice in treating so much. As with the case of too little liability insurance, getting out of your settlement won’t fix this problem.

The third most likely reason that you didn’t get as much as you wanted is because your case had “liability” or “causation” problems. This means that had you gone to trial, there was a good chance that a jury could find for the defendant (leaving you with nothing). Liability refers to whether the defendant was negligent. Causation refers to whether the damages you suffered were actually caused by the accident, as opposed to being pre-existing, entirely unrelated, or caused by a later incident. A fair settlement in cases involving these issues will often be determined by multiplying your odds of winning by the full value of your damages (e.g., in a case where your full damages are $100,000.00, but there is a 50% chance you would recover nothing if you went to trial, a $50,000.00 settlement would be fair). Obviously, figuring out your odds of winning involves a certain amount of speculation, but an experienced lawyer tends to get a good feel for these things.

Getting out of a settlement agreement in a case with liability or causation may ultimately improve your outcome — a jury may find completely in your favor and award you your full damages. On the other hand, you may recover nothing, making you even more unhappy. This is the only scenario where you should even think of trying to get out of your settlement.

In Most Cases, You Can’t Get Out of Your Settlement

If you have agreed in writing to a settlement, whether at mediation or through an informal settlement where you’ve already signed a release, you’re pretty much stuck with the settlement. The only circumstance I can envision where a court might set aside such an agreement (which is a contract, after all) is if the defendant induced you to sign the agreement through fraud, or through what is known as a “mutual mistake.”

In the only cases with which I am familiar, the fraud or mistake used to rescind the settlement related to the amount of the defendant’s insurance coverage. In other words, the defendant had higher insurance limits than he said, and the settlement was only for the amount of the insurance stated, based on the plaintiff’s belief that this was all that was available. Fraud makes it more likely that the settlement will be set aside, but “mutual mistake” (defendant didn’t intentionally misrepresent his limits) is still an avenue worth pursuing in these cases. Your lawyer will be fully on board with getting you out of your settlement agreement should it turn out that there’s more insurance available. Again, this only applies if you settled for what you thought was the full policy limits. If you settled for $40,000.00 under the belief that the defendant had $50,000.00 in coverage, it makes no difference if the defendant actually had $100,000.00. You’ve shown that the additional coverage wasn’t necessary to settle your case.

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Getting Out of Your Bad Settlement Through the Back Door

After telling you why you shouldn’t try to get out of your settlement (in 99% of cases) and the consequences of doing so, I’ll tell you one trick that may work under certain circumstances. Confidentiality clauses are routinely included in settlement agreements and releases, but are often not mentioned to the plaintiff until the time comes to sign the agreement. If you (1) haven’t yet signed a release or settlement agreement and (2) you never orally agreed to a confidentiality agreement (even to your own lawyer), you can refuse to sign any settlement agreement that contains a confidentiality clause. Tell them that while you agreed to a dollar amount, you never agreed to confidentiality. Most insurance companies will require this as part of a settlement, so your refusal to agree to confidentiality could result in the whole settlement going away (due to their being no true “meeting of the minds” between the parties when the agreement was reached). If the insurer relents and takes out the confidentiality provision, you’re stuck again and you’ll have to sign. In rare cases, the insurer may offer some more money as consideration for the confidentiality (but don’t count on it).

I will warn you right now that any attempt to revoke or avoid your settlement will likely piss off your lawyer. He may fire you over it. You will probably later regret not having taken the settlement. But if you’re mind is made up that you want out of that settlement, this is the best trick I can think of to make that happen.

You may ask, why don’t I just refuse to sign the agreement even if I had agreed to it orally? Well, that’s because the defendant will file a Motion to Enforce Settlement Agreement with the court, and the court will order you to sign it. This is the same tool that keeps a defendant from reneging on a settlement.

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If You Get Out of Your Settlement, Will You Really Be Better Off?

If you’re unhappy with your settlement, make sure that there’s nothing your lawyer or lienholders can’t do to satisfy you before trying to get out of your agreement. There was a reason you agreed to the settlement in the first place. Remember that position of uncertainty you were in before you agreed to settle? Think of being in that position again, but now you have a pissed off lawyer (or no lawyer), a pissed off defendant (who will likely not make you any further settlement offers), and practically a guarantee that your case will have to go to trial. Is it worth it?

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86 Responses to Unhappy With Your Settlement and Want to Get Out of It?

  1. Joanne S. Carrillo says:

    Great explanation; however, can you fire an attorney (contingent basis) because the settlement anticipated doesn’t cover MediCare nor his colleagues (seen under a LOP) and settle for what USAA will pay?
    (Florida MVA & Florida attorney)
    Thanks for your reply!

    • fl_litig8r says:

      No. Firing your lawyer won’t void your fee contract (unless you did it within 3 business days of signing it in FL). It certainly won’t get you out of paying any medical bills. The LOP (letter of protection, for those unfamiliar with the term) your lawyer signed was just an added layer of protection for your medical providers stating that he would pay them from the settlement before disbursing money to you. Even if it had never been signed you would still be liable for the medical bills, and the providers can use collection agents or even sue you for non-payment if you don’t pay them.

      If your settlement will be inadequate due to the defendant’s policy limits being too low (assuming they will pay full limits) your best bet is to discuss this with your lawyer, and see what kinds of reductions he anticipates receiving from Medicare and your other medical providers (medicare will automatically reduce its lien by the percentage of your attorney’s fees — either 33 1/3% or 40%, and plaintiffs rarely wind up paying the full amount to other medical providers if the settlement involves inadequate policy limits). If you fire your lawyer and somehow do manage to avoid his fee, your medicare lien will then be for the full amount, so do the math on that before thinking about trying to get out of your fee contract. Also, keep in mind that your lawyer will be the one trying to get your medical liens reduced after settlement. Is this something you’d want to try on your own?

      If this isn’t a case of the defendant’s limits being too low, and there is some other reason you are expecting your settlement to fall short (e.g., comparative negligence issues, seatbelt defense, etc.), your lawyer should be able to use this to reduce your Medicare lien further.

      Either way, I’d suggest you make an appointment with your lawyer for a frank face-to-face talk about where your settlement is likely heading. Explain that you are concerned at this point about running up more medical bills when you’re not sure you can cover the existing ones, and you’d like to get a picture of how he sees the settlement amount being divided up based on current lien amounts. If it looks like all your money is going to liens, and your lawyer hasn’t put much work into the case (for example, if it’s pre-lawsuit) you could try asking him to reduce his fee.

  2. Feeling Screwed says:

    Long story short, on the job injury, when to mediation, attorney never mentioned anything about liens from health insurance. Encouraged me to settle for a lower amount or I would have to pay them more for trial expenses. They got 31% and now they tell me I don’t get anything because my health insurance provider is requesting it all. Seems outrageous – insurance provider should have got the lawyer, not me. I am the one who has to live with the injury and future medical issues and I got nothing for the damages not to mention all the time and efforts with attorney. I feel like I was mis-represented. They only mentioned what my settlement would be less their fees and sign here X. How can this be fair? What can I do?

    • fl_litig8r says:

      Sounds like your lawyer is quite a piece of work. If you’ve already signed off on the settlement, I doubt that there’s anything you can do at this point to get out of it. Any misrepresentations or “under-representations” made about the settlement would have come from your own side (your lawyer), so there would be no grounds to void the settlement against the defendant.

      Your best hope right now is that the health insurer will accept less than the amount it is currently requesting. Your lawyer should try to get the health insurer to reduce its lien so that you wind up getting something out of this lawsuit. There may even be some valid legal grounds which could force the health insurer to take less. I’m pretty disgusted that your lawyer would let you sign off on the settlement without telling you the impact your insurance liens would have.

      It would be one thing if your part of the settlement money was going towards outstanding medical bills which you would owe were it not for the settlement. At least then, you’d see some benefit (elimination of a debt) even though you wouldn’t get any cash. Given the fact that you wouldn’t have to pay your health insurer back, but for the settlement, you really aren’t getting anything at all for pursuing the case. The only one coming out ahead is your lawyer. He may as well have been hired by the health insurer.

  3. Robert Bess says:

    Long story short here as well. All I heard was that there is 50K for the policy that the guy carried for 6 months. I lost my job of 14.5 years, unable to return to work and possibly looking at eviction etc…based on what the lawyer said was avaliable. No mention of leins etc…. This was a no fault case. Minding my own business and this kid rams into my car and the rest is history. After 6 months of waiting, landlord as well there is only an award of 3,200. Who screwed the pooch? Any suggestions?

    • fl_litig8r says:

      I think you went a little too short with the long story. The person who hit you had $50k in bodily injury coverage and the insurer’s offer is $3,200? Or you settled and got $3,200? What was the nature of your injury and the amount of your medical bills? How much did your PIP insurance pay (you don’t get to recover that money under no fault law, because unlike health insurance, you don’t have to pay it back).

      From the amount of the offer, it sounds like there is a dispute as to one of three things: liability, causation or permanent injury. Are they claiming that their driver was not at fault, or that your injuries were not caused by the accident (i.e., pre-existing) or that your injuries are not severe enough to meet the no-fault threshold (in which case you wouldn’t be able to recover pain and suffering damages)?

  4. Annissa Mitchell says:

    My settlement is taken over 1 year now. I finish therpy a while a go, and everytime I call and check on it, they tell me dat same thing for dat pass 10 months. They still trying to serve the defendent. I thought it was her insurance co. I was sewing, not her. So I have to wait until they can get in touch with her. That might take for ever. I should have never got a lawyer. I didn’t know it takes this long for dat 1st offer.

    • fl_litig8r says:

      It sounds to me like your lawyers may have tried to settle your case before having to file a lawsuit, but for some reason weren’t able to (this isn’t unusual). Now they have filed the actual lawsuit and are trying to serve the complaint on the defendant — this is necessary before the case can go forward. In most states, you sue the individual defendant, not his or her insurance company. The insurance company still pays for the defense and any settlement (up to its policy limits), so it’s not as if your lawyers aren’t still going after the insurance company. It’s just a technicality.

      In most states there is a 120-day limit from the time the lawsuit is filed in which you need to serve the defendant. If you go beyond this time, your case can be dismissed (but still re-filed if within the statute of limitations), but if the defendant is evading service on purpose, this time can be extended. I don’t know when your lawyer filed the lawsuit, so I can’t say why the defendant hasn’t been served yet.

      I would bet that your lawyers were waiting for you to reach maximum medical improvement before trying to settle your case. This can take a long time, depending on your injuries, and is the most common reason it takes so long to move a case forward in the early going.

      The fact that your case has taken a year so far doesn’t really raise any red flags that your lawyers are doing anything wrong. It really sounds like they’ve just done a poor job of explaining the process to you. If you can’t get a satisfactory answer from them as to what’s going on via a phone call, you may want to schedule a 1/2 hour meeting with them to discuss it face-to-face.

      It can be frustrating to wait so long for your case to resolve, but you shouldn’t give up on your lawyers just yet. It sounds like you just need some basic questions answered, like “Did you try to settle my case?”, “Did the insurer make any offers?” and “When do you expect to serve the defendant?” These shouldn’t take long to discuss, and may make you feel better that your lawyers are actually moving your case forward.

  5. tino says:

    My settlement check cleared my attorney’s office over a month ago (he stated this to me). In his first few conversations with me, he joked about spending my settlement funds in Vegas, at a poolside party.

    He seems like a really nice guy, and I didn’t mind playing along with his joke (although I implied that he could be liable for fraud, and he seemed to know it)…so after a few phone calls he absolutely has abandoned connecting with me.

    I think I will hire another attorney to sue him and publicize and use social media to reveal what a dirtbag this guy has become

    He is [removed by Admin to save you from yourself]

    Any Suggestions?

    • fl_litig8r says:

      If you think he took your money, you should report him to the state bar. If it’s true, that’s a serious violation that would probably cost him his license.

      I removed his name from your post and I suggest you hold off on posting it elsewhere until your allegations have been proven. You really don’t want him suing you for libel if this turns out to be something other than what you suspect.

  6. Margaret says:

    Long story but will try to shorten the best I can. I was a passenger in a car accident in my driveway guy drive down the sidewalk hit us.
    I have had 2 cervical fusions and a pending back surgery.
    I treated for neck and back I injuries also a severe burning through my body couldn’t explain. later found a spinal chord injury can cause this.
    The nurse practitioner didn’t document my neck injury in the record on the first visit to see her but there is a copy of the prescription she wrote for physical therapy for neck and back that same day in the records.
    After a couple months she finally ordered an MRI of my back only.
    I was referred to the neurosurgeon. I went to see him told him of neck injury i documented neck pain and tingling in left hand also back issues on a chart in his records. He checked my back gave me 33% chance surgery could make better 33% stay the same or 33% I could be worse. So I opted to continue physical therapy. He never checked my neck.
    18 months of walking around feeling like my legs were clumsy, falling down, electric shocks going down my back documented in records. When finally got an MRI for my neck c5 6 left sided herniation, c6 7 central herniation extending to the right, 6 mm by 20 mm compressing spinal cord to 5 mm also 8 mm suspected myelomalacia on spinal chord. Was referred back to same neuro.
    Discovery deposition of neuro- neuro gave causation was then given the incorrect record and no mention of the physical therapy prescription. Both attorneys had the copy of the physical therapy record but never addressed it to show i did have neck pain that day just led him to believe records didnt match what I told him. Then the neuro states can’t give causation for my neck based on what atty said and the record that if accident caused neck injury should have had neck pain that day. Also stated didn’t check my neck because wasn’t referred for my neck. Gave causation for back

    Evidence dep for jury- neuro states never told him I had neck injury, changed many answers regarding records, testified against his own records, testified against his book he teaches from at the medical college. Stated should have only had right arm pain and minimized my injury. My attorney didn’t impeach or object to any of it,and then with drew from my case. I represented myself during the search for legal council which is how I have been able to review the records and depositions.

    New attorney- reviews my case said neuro malpracticed and covered himself in his opinion the attorney threw my case and he had concerns because they used nickname during deposition instead of mr.? So he said would have to file on dr and atty, because have to wait for case to be done and if it was hurt by first atty and also because the dr lied on deps to cover the malpractice it added 5 more years to the statute of limitations.
    New atty- said the judge made rulings that were clearly not in accordance with the law, the neurosurgeon wrote a statement giving causation explained how accident caused my injury, deposition before trial he said he’s not going to testify for either side and doesn’t have an opinion.
    So they offered 35,000 my atty said I have to take that or pay him 20,000 to go to trial. He said would reduce fees negotiate the leans. I was told I would receive 20,000. Now I got a release to notarize and send to the atty that releases the driver,insurance company, any law firms, doctors, their heirs, anyone causing any losses damages from date of accident to present. An email that states they agreed to lower atty fees to put a little money in my pocket but nothing about the 20 thousand. Also the attorney got very mad at me when I asked him about the former attorney malpractice he said he wasn’t filing because he isn’t going back to that town for anything because they don’t follow the law and that he thinks the statutes ran out anyways.
    Now I’m at a loss the neuro can lie under oath, the attys can use evidence they know is wrong, i was severely injured by a man driving on the sidewalk and I’m left with an email about a little money in my pocket and a release that I cannot bring myself to sign. If there is any advice you could give me it would be so greatly appreciated. Thank you

    • fl_litig8r says:

      Unfortunately, your situation is not that uncommon. One mistake in an early medical record (such as the failure to document your neck pain) can snowball until it screws up your entire case (as subsequent medical providers copy the mistake from earlier records). I think your new lawyer may have been a bit overzealous in accusing the neuro and old lawyer of malpractice, however. Even if the neuro failed to document your neck pain early on, at best the case would have been a swearing match between you and the neuro as to what was said — not a particularly strong case, considering that a jury would have a hard time understanding why the neuro wouldn’t want to treat your neck if he knew about it earlier. It seems that there were some miscommunications as to the severity of your neck pain and symptoms, such that by the time it was explored via an MRI, it was too far removed from the time of the accident to allow the doctor to link causation.

      I also have a hard time believing that your old lawyer was covering for the neuro. He probably lost a decent amount of money (on costs alone) pursuing your case as far as he did, so I’m sure he wasn’t thrilled with how the neuro failed to link the neck injury to your accident. If this neuro was a buddy of your lawyer, I would think it more likely that he would make a strong causation argument so that his friend’s/your case would be worth more. While there may have been things which could have been handled better both from a medical and legal standpoint in your case, I can’t say from what you’ve written that you suffered from either medical or legal malpractice. Sometimes, things just go wrong in lawsuits. This is why I think your new lawyer isn’t fired up to sue your old lawyer and the neuro any more. I think he shot his mouth off about the “malpractice” early and realizes now that such cases would be incredibly difficult to prove.

      At this point, you’d probably have a hard time finding a third lawyer to take your case. So, you can either (1) take the settlement offer (I’d get that $20k guarantee from the new lawyer in writing first), (2) pay the new lawyer the $20k he wants (presumably to cover costs) to go to trial or (3) tell the new lawyer you won’t pay settle or pay him $20k, so that if he withdraws from your case you can settle for the full $35k (assuming the offer is still available) and not owe him a fee — if a lawyer withdraws because a client won’t settle, he is not entitled to recover any fee.

  7. Margaret says:

    Thank you very much….I still have not signed the settlement agreement yet. I may not have been real clear because I was trying to fit everything in and i dont know if this helps any. The nurse practitioner failed to document neck pain in the record but the copy of the prescription for physical therapy that day is for a neck and back injury. During the discovery dep the neuro gave causation he was then given the record from nurse practitioner without the prescription written that day and questioning went to the tune of patient not being honest with the doctor about when neck pain started. Even though both attorneys had the script for physical therapy.
    The neck pain and parasthesia is documented in the neurosurgeons records he stated during evidence deposition that I did not tell him I had a neck injury going against what his records say and what he stated in his discovery deposition. Because in the discovery deposition he stated I told him I had neck pain that I was in physical therapy for my neck but he didn’t treat my neck injury because I wasn’t referred for my neck.
    I went to the court house pulled up the files for my case. The neurosurgeon was allowed to review all my records not just a wrong one he provided a statement giving causation and explaining the symptoms of my injury are all documented in the records. My attorney told me the neuro flip flopped and that they offered 35,000 so there couldn’t even be a bad faith claim if we won at trial. In the record for the case the neurosurgeons statement was barred from trial because my attorney did not disclose the supplemental answers to 213(f)(2)interrogatories until 31 days after the deadline. Also in the motion filed by the defense the attorney uses again deposition answers that he knows is a lie under oath. Anymore insight could and would be so greatly appreciated. Thank you so much
    Margaret

    • fl_litig8r says:

      I understood that there was a conflict between the nurse practitioner’s notes and her prescription for physical therapy. The problem with that is it creates a question as to which record was accurate, which is still not good for your case unless the nurse practitioner admitted to an error in her notes.

      The neuro flip-flopping was a huge problem, and I’m not sure that he would have changed his tune again based solely on the neck pain noted on the physical therapy prescription. I think the bigger issue for him was the fact that you had not been referred to him for neck pain.

      Your attorney missing a disclosure deadline and getting your neuro’s depo barred from use at trial was certainly below the acceptable standard of care. Whether this makes for a worthwhile legal malpractice case against him is unclear, due to the questionable value of the neuro’s depo to begin with. I know you blame him for the neuro’s poor performance, but most lawyers probably wouldn’t see it as such a clear cut issue. There’s no real way to know how the neuro would have reacted to the nurse practitioner’s prescription note. This is one of the inherent problem with legal malpractice cases — it’s often hard to say whether one’s case would be significantly better if the attorney acted differently.

      I’m sorry I can’t be more optimistic about salvaging your case. A lot of things went wrong to devalue your case, and realistically the only person you could potential sue for it would be your first lawyer — your doctor can’t be sued for med mal just for providing unfavorable (and even possibly false) testimony in your personal injury case. Usually lawyers aren’t interested in legal malpractice cases that aren’t more clear-cut, such as a missed statute of limitations. They are just too much work when the outcome is uncertain.

  8. renzo santiago says:

    i was rear ended by an sleepy driver at 60 mph. he totalled my 1999 f 150 4×4. there was a 7 car accident. the only car totalled was mine. i was left with 4 scars in my forhead and no truck wich mine was paid for already. as a landscaper i lost several customers and i also had to buy another truck and get into a car payment. i had no insurance coverge at the time. they only offering me 6925.00 which my attorneys stays with 2600.00 of it. my medical bills add up to 11000.00 and i dont want to settle for this little money. my attorney says there is nothing else he can do. the policy only covers 50,000.00 and it has to be split with the other 6 people involved. mind you that im the only one that lost it vehicle and was left with the scars. been self employed i had no medical insurance either and cant be treat it for a little back injury. shoul i settle for that bit or what should i do. i really dont even trust what my attorneys is telling me.

    • fl_litig8r says:

      It seems like your attorney is being honest with you. If there is only one tortfeasor (at fault party) with a $50,000.00 policy that needs to be split among multiple plaintiffs, usually this is handled on a pro rata basis — meaning that the percentage of the $50,000.00 each person gets is relative to how injured he is compared to the others. So, even though you may be the most injured of the plaintiffs, that doesn’t mean you get all of the insurance money. It just means that you would get the largest share of the money.

      The claim for damage to your vehicle should be covered under the tortfeasor’s property damage coverage, which is separate from his bodily injury coverage. I assume the $50,000.00 is the bodily injury coverage. Unfortunately, people tend to have a lower amount of property damage coverage, so you would have to divide that lower amount among the damaged vehicles, as well — but at least you’re not splitting the $50,000.00 among both the property and bodily injury claims.

      The only way to ensure that you aren’t shortchanged by an uninsured or underinsured driver in the future is to have UM insurance. Sadly, most people learn about this the hard way, as you did.

  9. Lauren, FL says:

    i have a question about being able to go after your insurance company after signing a settlement agreement. I was in an accident, where i was rear-ended at 40 mph. I went to the hospital with a broken wrist, whiplash, and other pains. I went to multiple different doctors because they kept telling me it was “soft tissue” damage and would work its self out. I was running up on the statute and ended up having to settle ( bc of what i was told by doctors ). I was in constant pain, had migraines almost every day, along with issues with my wrist bc it was set wrong in the cast. I found out about 6 months after settling and having a sitting MRI (which no one ever ordered & my normal MRI’s were blurry bc of the constant muscle spasms). I found out that i have 3 bulging & herniated discs in my neck (which are whats causing the migrains every day and they cant do anything to help it other than meds) 2-3.3-4.-4-5, and a partial on 5-6, 2 bulging in my lower back, carp tunnel in the wrist i broke & my pelvis is tilted now bc of the wreck and my leg pops out of place. Ive already been told i will have to have surgery on my neck in the near furture. I’m only 27…. i’m now having to pay for all dr visits out of pocket along with medications bc no one will take me with the injuries i have ( pre-existing ). I dont understand why i cant do anything about this. The insurance company pressured me to settle and at that time- i never knew the injuried were that bad, i just knew there was something else wrong with me than just ” soft tissue damage “. Please tell me there is something i’m able to do ……….. i just dont think its fair at all that i was screwed out of future medical care & a somewhat “normal” life bc of someone elses negligence.

    • fl_litig8r says:

      Unfortunately, I don’t see any facts here that would let you get out of the settlement. The insurer is allowed to “pressure you” to settle, as long as it doesn’t commit fraud. In your case, it was your own doctors who caused the delay in the proper diagnosis. While you may think that this would be grounds for a med mal case, I doubt most lawyers would be interested in it. If you sued the doctors for med mal, you likely wouldn’t be able to recover damages from your reduced settlement. You’d only be able to recover standard med mal damages, which in the case of a delayed diagnosis would be the pain and any worsening of the condition which occurred between the time they should have discovered the true injury (and that’s assuming that it was malpractice for them not to have discovered it sooner) and the time it was actually discovered. It’s not likely that the amount of damages you could get for such an injury would warrant the expense of a med mal case.

      The only good news that I have for you is that you may still be able to get health insurance coverage. The Patient Protection and Affordable Care Act (known commonly as “Obamacare”) required the establishment of high-risk pools for those people with pre-existing conditions who have been without health insurance for at least six months. The premiums seem fairly reasonable (far better than you’d do on the open market). You can see the requirements for getting coverage, the average premiums and other information on this site (be sure to use the drop down box to select “Florida”). It’s a government website, so the information should all be up-to-date.

      I’m sorry that I didn’t have better news for you.

  10. kim says:

    I’ve been with my lawyer for the past year because of my auto accident last Thanksgiving. We never completed a written contract in regards to lawyer fees. She recently told me how much the insurance had offered to settle and I’m not satisfied with it. I’ve gotten a 2nd opinion from a client of mine who is a lawyer and said I could get a lot more. If I dropped my current lawyer, would I still be obligated to pay lawyer fees even though no written agreement was made?

    • fl_litig8r says:

      This will vary depending on the state. Even in states which require that a contingency fee contract be in writing (I don’t know any that don’t, but I’m not aware of all states’ ethics rules), you face two possible outcomes: (1) you owe no fee or (2) you still owe a fee based on quantum meruit, as discussed in this article. Check your state bar’s website, which should contain its ethics rules and possibly also its ethics opinions, which interpret these rules (usually sorted by subject, such as “attorney’s fees”).

      As an aside, I always take with a grain of salt any attorney’s opinion on the value of your case that is not based on a review of the complete case file. Basing an opinion on the value of the case solely on the client’s own representations as to the case’s merits will always skew the results higher than they should be.

  11. Eve Sanc says:

    My eleven year old daughter and I suffered an automibile accident on March 2012, and hired an attorney through our chiropractic.
    The attorney seems to have moved fast with our insurance claim and has agreed to a settlement without my consent or authorization. I have found a few discrepancies on both the chiropractic’s billing and the attorneys settlement statement; And I now find myself very much confused. The chiropractic has being paid by the insurance carrier and our attorney wants to deduct that amount from our total settlement. Please, help me understand how all this works!

    • fl_litig8r says:

      First, your lawyer cannot ethically settle a case without your consent. If you agreed to take “the best that he can get” or “any amount over X dollars”, then he can settle without checking with you again (as long as the settlement is above the amount you approved). If you never gave any authority to settle of any sort, this may be an issue you want to take to your state bar (file an ethics complaint).

      As to the chiropractor, what insurance company paid for the bills initially? If it was a health insurer, that insurer is often entitled to be repaid for those bills out of your settlement. If it was a PIP insurer, the chiropractor shouldn’t be paid for those same bills again. Are you sure that the chiropractor is being paid for the same bills twice? Often, a chiropractor will exhaust all of your PIP benefits and then continue treating you under a letter of protection. If this happened, you still have to pay him for the treatment that occurred after your PIP ran out.

  12. Eve Sanc says:

    Thank you so much for your response and the time given to look into my concern. After considering your reply, I thought it be helpful writing in regards to the type of accident we experienced. We were rear-ended in a hit and run accident. My insurance carrier declared my vehicle as a total loss. Resolving the auto issue and its reimbursement wasn’t complicated. However, getting their guidance into seeking medical treatment was somewhat a difficult task. Being my main reason why we ended up with this chiropractor and our attorney. The chiropractor became the middle-man between my attorney and me during our six months of treatment, until I decided to look into my own claim. On October 25 2012; my attorney’s assistant finally decided to return one of my many calls and informs me of a recent settlement offer of 1,400 (a combined settlement of 500.00 for my daughter and 900.00 for me) and was given the alternatives to either settle it or to take it to arbitration. Here’s my attorneys’ response via email “E Sanch, Would you like me to make some suggestions for using other billing codes to improve your collections in Trauma Cases? “ This is after expressing my desire to have my UM claim set off for arbitration, and attempting to obtain copies of my file, offers made to them by my auto insurance, along with a copy of a written statement from them explaining all disbursements of the future settlement.
    On November 1 2012; I received copies of my file with a written letter from the attorney stating a different offer amount of 21,000 minus attorney’s fees 33 1/3% & 2,809.00 med bills.
    On November 14 2012; he sent me another letter stating a different amount of 14,500 (without bills included) this time stating to have had made a mathematical and an accounting error.
    Although, I have being good in accepting his apologies, I can’t stop from feeling skeptical and confused due to their inconsistent statements and the many discrepancies found on their medical bills like for instance an MRI bill for 2,150.00 later reduced to 800.00 after I called the imaging medical place and inquiring about it. And a chiropractic bill with over charges of 500.00 which were also reduced. According to records found on file it shows a copy of a check made out to my attorney, towards medical bills with a written memo of (EXMP CLAIM).
    And can a remaining medical bill be added to the final settlement? I ‘am sorry for writing such a huge encyclopedia.

    Once again, thank you so very much for your help and for seeing our thirst in finding answers.

    PS. My daughter and I were fortunate enough to have suffered neck and upper back pain, nothing severe to have a TRAUMA case open.

    Thank
    eve

    • fl_litig8r says:

      I would definitely keep a close eye on the attorney’s costs and medical bills claimed as part of the final settlement. Make sure that your lawyer shows you the billing statements/receipts/lien letters which support each of the claimed costs.

      Did he actually settle your claim or not? It sounds like he was just showing you demand letters he sent to the insurer and that your claim hasn’t been settled yet. He needs to get your authority to make settlement demands (he can make multiple demands above an amount you have approved, as long as each demand exceeds that amount), so be sure he isn’t making demands without your authority.

      As to your question “can a remaining medical bill be added to the final settlement?”, if you are asking whether medical bills which were not either incurred or included in your settlement will also be paid by the liability insurer, the answer is no. Once you agree to settle for a certain amount with the liability insurer, you can’t go back and seek payment of additional medical bills afterward. This is why you need to be sure about the amount of your outstanding medical liens and insurance liens before agreeing to accept a settlement offer.

      • Eve Sanc says:

        Thank you for the time given to look into each situation, but especially for reading and answering to my concern. I followed your advice and kept a close eye on my Attorney’s costs and medical bills. I can truly say that I have gained a little bit of confidence after reading your response.

        Unfortunately, my claim has not settled yet. Although, my attorney has provided me with my file his assistant seems somewhat aggressive and less tolerant to any of my questions or petitions. Her attitude has made it difficult for me to obtain documents; like the demand letters sent to my insurance carrier and an accurate billing statement from their firm. Instead, she has bombarded with emails asking me if I’m ready to close my claim, accused me of not responding to their calls or emails and also accused me of providing them with a non- working phone number. Very contradicting, but any how!
        This was after making it clear to them; that I would NOT schedule an appointment nor talk to them until I had received every document I needed to have in front of me.

        I felt retaliated against, and denied of my rights as a client for voicing my concerns in regards to some discrepancies found on the attorney’s costs and medical bills. Finally, I was force to submit my request to them in writing and gave them a deadline to respond to my request, which they failed.
        Finally, after losing my patience I was obligated to file a complaint against my attorney and his firm with The State Bar of California.
        But, my question to you would be “am I suppose to mail them copies of my complaint against them?’’

        Once again, thank you so much for your help…Honestly I can’t thank you enough!

        • fl_litig8r says:

          I really wish you told me you were going to file a bar complaint before you did it. The communication problems and problems with the paralegal may have been something that could have been worked out. A bar complaint should really only be used as a last resort. Now, in all likelihood, your lawyer is going to withdraw from your case and you may have trouble finding another one to take it on. Any potential new lawyer will probably contact the old one, who will tell him that you filed a bar complaint — a big red flag to most lawyers that you may be “problem client” that they should avoid.

          To answer your question, though, you don’t have to send a copy of your complaint to the lawyer. The bar will notify him of the complaint.

          • Eve Sanc says:

            Yes, I completely agree with you. How foolish of me, I allowed my frustration to take control of my acts, and don’t know if I can still put a stop to my complaint. I’ m wondering what other options I have if any and will there be any consequences against me if I were to withdraw my complaint.
            Thank you much! Eve

          • fl_litig8r says:

            If they’ll let you withdraw the complaint, that may be the smart move at this point.

  13. Missie L. says:

    I was in a car accident over a year ago in Maine. I was t-boned by a driver that was speeding and failed to stop at a red light (With a stop sign too). 100% their fault.

    I went to a lawyer I had worked with before and he seemed pretty legit. So, why not, right? Anyway, time moves on with treatments and such. Within the first month I am diagnosed with a torn rotator and two slipped vertibre. Still, I’ve had a persistent headache. Eventually, around the six month mark I am diagnosed with Greater Occipital Neuralgia. The neurologist in his reports said what the condition is and how likely it is to make full recovery. My doctor confirmed and I did my own research. I am not being called. So I ask him to call me and the doctors. It takes a week, sometimes two for replies. When I do get a hold of him my lawyer says we should wait for more info/evidence.

    Being upset and frustrated, I tell him if I am going to be treated like im on the back burner I will fire him and find someone new. He soothes my mind and I stay. Around the 8 month mark we have a discussion in depth about what’s happening. He asks what I am going to ask for to start and I reply with a big big number for a life long condition that I really don’t want to have. He says nothing.

    So, at the one year mark we have the sit down. Talk some numbers. BAM! He starts spouting off about “policy limits of $100,000″ and “She’s on social security so there is probably nothing to collect after 100,000″. Im obviously devastated that this was never brought up before. He reasures me that they will probably just settle for the policy limits because it’s defiantly worth way more than that number. Mind you, he knows of my previous injury from the lawsuit we dealt with two years previous.

    Now, I am settling for… much less.

    Is there anything I can do to not pay him or pay him less because I feel like he lead me on. Wouldn’t he have known the policy limits a very long time ago? I feel he’s been acting in bad faith.

    • fl_litig8r says:

      I’m not sure if you are saying that you’re settling for the policy limits (much less than you wanted) or that you’re settling for much less than the policy limits. If you’re settling for the policy limits, there really isn’t anything your lawyer could have done to get you more money. While he should have told you about the policy limits once it became apparent that your case would be affected by them, his not telling you sooner really had no effect on the ultimate recovery made in the case.

      If you’re settling for much less than the policy limits after the lawyer told you that he thought he thought your case was worth much more, unless there is something that has occurred to change his opinion of your case, this may provide an opening from which you can try to get him to knock some money off of his fee. Of course, if you’ve already agreed to the settlement, this probably won’t work (as now you have no leverage).

      While he could have kept you better informed, I don’t see anything he did as being an ethics violation or anything that would get you out of your fee contract.

  14. Ashe says:

    What if the case of having fired one lawyer, another dropped you, that at this point you want drop everything? We haven’t signed anything and we want this to go away. We are prepare to pay off our bills even though our accident was not out fault.
    I live in a very conservative state and the judge they assigned us is very conservatives, and no lawyer in our area wants to go to court with this judge.

    • fl_litig8r says:

      As long as the defendant didn’t file a counterclaim, you can dismiss your case and make the whole thing end by filing a Notice of Voluntary Dismissal (I suggest for strategic reasons that you state that it is “without prejudice” — meaning that you can possibly re-file it — even if you have no intention of pursuing it further). Another way of doing this would be to file a Joint Stipulation for Dismissal with the defense attorney, stating in the motion that each party is to bear its own costs and attorney fees.

      If the defendant has filed a counterclaim, your voluntary dismissal would not end the counterclaim. You’d need to go the stipulation route, having both sides agree to dismiss their claims.

  15. john murry says:

    My attorney withdrew from my case but he did sign L.O.P’s for my treatment. The at fault drivers insurance comp offered 25k which is alot less than my medicsl bills. There is 100k.policy my lawyer was trying to obtain but after botching my case n me not being happy about it they withdrew which in FL means I wont owe them. I do owe the LOP’s though, but if I settle this myself w at faults insur company and there isnt enough money too pay all the lop’s, what could happen to me? I have no assets and cant save money gor anything… Will they just sell the lop’s to a debt collection agency? Im leaving the USA as well to live with my folks in europe so I wont be in this country much longer…. What will happen or what should I do?… Thx! John!

    • fl_litig8r says:

      If you get close to a settlement agreement, the best thing to do would be to call the LOP providers and see if you can negotiate them down on their liens. You might try offering half of the settlement money to them (if a lawyer was involved, he’d probably try a third to account for his portion), pro rated by the amount owed to each provider. If you don’t pay them, they will act as any other unsecured creditor (like a credit card company) can act. They can notify credit bureaus, sic collection agents on you, and, if they are really motivated they can sue you and get a judgment against you. Once they get a judgment, they can try to seize your assets, such as bank accounts or vehicles — if you are a homeowner, in Florida they typically can’t seize your primary residence due to homestead laws, but be careful if you’re about to sell it when you move — garnish your wages (though are restrictions on this under state law which might preclude them from doing so), and other things. If you are going to be moving soon, there may not be enough time for them to get a judgment against you before you go. I wouldn’t share with them the fact that you are planning to move, as that might cause them to jump right to suing you instead of first pursuing other collection methods. Settling with them would be the safest option, if they are willing to reduce their bills sufficiently.

  16. john murry says:

    Also I should add that my case was set for trial but I never ever signed the paper accepting or denying th offer of 25k before my attorney filed suit. No lawyer wants my case after said lawyer withdrew n botched case as they all say getting the whole 100k is unlikely and it would cost them 20k out of pocket to take said case to trial. Ive met with 4 diff firms since my attorney released me. I want to take the 25k and try to talk down they owed monies, if an agreement with lop med providers is not obtainable and I recieve said settlement money without a lawyer and they do not recieve amount requested or any, what would happen next? I do not have any assets besides a 5k car on its last breath. At most one medical provider is owed 4k and all others at 2k. Is that something that theyll send to creditors or will they try and sue me. Thx! John

    • fl_litig8r says:

      If you mean by “all others at 2k” that they’re at $2,000.00 combined, then the path of least resistance would be to just negotiate the LOP providers down as best you can and pay them. $6,000.00 in total medical bills (before negotiating) is a relatively small amount. Unless you have some weird injury that had low medical bills but is still awful (or you are expecting some rather large medical bills in the future), such a low amount makes me question how much over $25,000.00 your case would be worth.

      If you can’t reach an agreement with them, then expect the collections tactics I discussed in my prior answer. I can’t say whether any of them would bother suing over such relatively small amounts. I guess it depends on whether they have lawyer who provides cheap or bulk rate services to pursue these claims. If they had to pay normal rates for a lawyer, I would expect that they wouldn’t bother (unless they feel like taking the time to pursue the matter themselves in small claims court, which would likely take more time and money away from their practices than they could hope to get from you).

  17. john murry says:

    Ok thanks! I want to pay but with as little money as there is I think working with them will be hard, which scares me hence the questions, but I will try. Thanks!!

  18. MARIA SANTIAGO says:

    I’M SO UNHAPPY WITH MY ATTY IT’S BEEN THREE MEDIATIONS ALREADY CANCELL NOW THEY ARE TELLING ME WE ARE GOING FOR TRAIL WHICH I TOLD HIM WE DIDN’T WANT TO GO CAUSE MY HUSBAND IS FORGETTING ALOT OF THINGS WHY DO THEY CANCELL THE MEDIATIONS IS THAT GOOD ARE BAD THE CASE HAS BEEN GOING FOR THREE YEARS ALREADY

    • fl_litig8r says:

      Unless the court orders both parties to mediate, mediation is a completely voluntary process. If the defendant doesn’t want to do it (because, for example, it thinks it has a good chance of winning at trial) and the court hasn’t ordered it, there’s little your lawyer can do. It is odd that the mediation would be set and cancelled three times, but sometimes things come up which cause either a scheduling conflict or a change of heart about ultimately wanting to mediate at all which could explain this.

      If the defendant has no interest in settling, the only options you have are to take the case to trial or to drop the lawsuit.

      Keep in mind that just because your case has been set for trial, that doesn’t mean the defendant doesn’t want to mediate or settle. Ask your lawyer directly whether the defendant wants to mediate this case before trial before jumping to conclusions. It may be that the reschedulings thusfar have just been the result of scheduling conflicts which arose after the mediations were set.

  19. steve says:

    Hi, I was wondering if you could shine a light on my case.
    in 2010, about 2 and a half years ago, I got into a car accident, for which I was at fault. The person injured filed a claim with his lawyer through my insurance company at the time, and I believe my insurance company settled. I did not hear anything for about 2 years, and I just received a mail yesterday from the person who had filed a claim against me, through his new lawyers, demanding 100,000 from me(driver at fault), and 11,000 from my mom(owner of the car that I used at the time of the accident).

    I found through internet searches that usually, insurance companies file “releases” when they agree to settle with the opposing side, and that when this happens, I cannot be sued again in the future for the same claim.

    What’s going on?

    I did not get into any car accident since the one in question 2 and a half years ago.

    I’m not exactly sure whether my insurance company at the time of the accident “settled,” because they said they were going to offer the injured person some amount of money, and I knew they were waiting for response, and I had not heard any news after that. So I automatically assumed that the other party took the settlement, and I wasn’t contacted regarding this matter for the past 2 years or so.

    • fl_litig8r says:

      You need to contact the insurer you had at the time of the accident. If the case settled, the insurer should have a release on file (one that could include your mother). If the case didn’t settle, you’d need to notify that insurer about the demand anyway, so it can provide you with a defense. So, either way, you need to call the insurer you had at the time of the accident.

      If your mother had different insurance from you, she should contact her insurer from the time of the accident, as well.

      Hopefully, this is just a case of a plaintiff duping a new lawyer into trying to sue over a claim that was already settled (it happens). If not, your insurer (and your mom’s, if separate) should defend you and try to settle the claim within policy limits, if possible.

      • steve says:

        Thank you for the advice.
        I will contact the insurance company and see what they tell me.

        My mother and I were under the same insurance company at the time of the accident, and I the settlement amount was already at maximum policy limits.

        What i’m unclear about, however, is why an insurance company would provide money without the case settlement. Does this ever happen? Could it really be that the case had not settled for the past 2-3 years?

        • fl_litig8r says:

          I can’t see your insurer settling without getting a release. To do so without telling you would really leave it exposed to a bad faith lawsuit. While it is possible that the case wouldn’t settle after 2-3 years, especially if a new lawyer is involved (if the client and old lawyer may have had a falling out, and the client gave up on the claim until recently, maybe due to financial woes), I can’t say if that happened or if it is just a case of a client not telling his new lawyer that he already settled this case (which would be best for you).

  20. Ken says:

    I have been in a dispute with a past landlord for over 4 years regarding the black mold in the house we rented. Our attorney finally came to us with a settlement offer of $30K which we accepted. A couple days later, he called to say that it wasn’t an offer after all. The other side just wanted to see how low we would go. now, we got an offer of only $20K and potentially going to trial. Is that legal?

    • fl_litig8r says:

      Well, if it wasn’t a real offer, then yes. For example, asking “Would your client settle for $30,000.00″ sounds like an offer, but technically isn’t one. If it was in fact an offer, especially if it was in writing so that the wording is not in question, then a timely acceptance could be enforced through a Motion to Enforce the Settlement Agreement. It really depends on the wording of what was thought to be the first offer.

  21. Mommy_A says:

    The car accident case has been dismissed and the settlement award has been given to my attorney in my name. he asked me to come to his office and go to the bank with him to endorse and deposit the check in his trust account. He gave me a
    photocopy of the check and no other documents has been given to me. He mentioned that after all the liens are paid or settled, he will send me a net sum check. I have been calling
    everyday to follow-up on this and the receptionist always say he’s not here, he’s busy, he’s in the courhouse. I even left a voicemail to his assistant and they ahven’t returned my call. Is this a fraud? What do you suggest I should do to get my check?

    • fl_litig8r says:

      You don’t say how long it’s been since he deposited the check. Trust account checks can take up to 10 business days (2 weeks) to clear, and it can take a while to resolve doctor and health insurance liens. Read this article on how to deal with an attorney who won’t return your phone calls. I seriously doubt that it’s fraud, just because an attorney who gets caught committing fraud to steal client funds usually gets disbarred (and it’s often very easy to prove). I’d suspect that it’s just taking longer than expected to resolve the liens, and he’s just dodging you to buy time and avoid being yelled at for something which may be beyond his control (not that this an excuse).

      If your settlement is more than enough to cover your outstanding liens, after attorney’s fees and costs are deducted, you should ask your attorney for a partial distribution (discussed in this article) to hold you over until the liens are paid and the rest of the funds, if any, can be disbursed.

  22. Susan says:

    Why does my attorney tell me we are not even near a settlement , then he wants to know my bottom line? The other side says we don’t have a case but they want a demand letter from us?

    • fl_litig8r says:

      Both questions are asked for similar reasons. Your lawyer wants to know about your bottom line because he’ll need to craft his settlement offers around it (obviously he can’t ask for less than you authorize, and he’ll want to leave himself room to negotiate) and because it gives him an idea as to whether the case is truly capable of settlement. If you come back with a bottom line number he considers out of reach, he’ll need to explain to you why he thinks it is unreasonable in the hopes that you will both be on the same page. This is better done sooner rather than later.

      The insurer wants a demand because it wants to gauge its risk of trying the case versus settling. Even though it says you have no case, it can never be 100% sure of that. Your demand letter may reveal things it was unaware of when it said you had no case, causing it to reconsider. At the very least, it will give the insurer some idea of what you truly want (although most demands are initially pretty inflated), which will determine if it wants to maintain its litigation posture or adopt more of a settlement posture.

  23. Susan says:

    I also wonder why my attorney is still representing me if I have such a difficult case? No matter how much of a henny-penny-the-sky-is-falling mentality his has, he never leaves. So when he tells me the other side told him their client didn’t commit malpractice, I say “well that’s their job” and he has no response. I am being a team player in all of this, honest, available, asking for 80% less than the complaint. But it seems that my attorney is not being a team player with me? He only communicates in leagalese and double-talk? I already know he has a law degree, he does not have to talk over my head to sound intelligent. He always uses, emphasizing uncertainty,and deflating expectations.

    • fl_litig8r says:

      Most lawyers lower clients’ expectations, and make sure the client knows the arguments the other side is setting forth. That doesn’t mean your lawyer is ready to withdraw, or doesn’t think the case is winnable. He’s just preparing you for the worst, because no lawyer was ever accused of malpractice or had a bar complaint filed against him for warning a client too much that her case may not win (or recover as much as hoped). There’s a good chance that he’s just covering himself, and possibly trying to get you to consider an even lower settlement than the 80% figure you’re currently at. If he then goes on to recover the full amount you wanted, he’s exceeded expectations. He can’t be thinking too negatively about your case if he hasn’t mentioned possibly withdrawing.

  24. Isis says:

    The attorney may get pissed at backing out of a settlement agreement (especially if it’s some under-the-table dealings or corruption is going on. Yep, sometimes it HAPPENS!). So, try to be careful when contemplating accepting settlement offers initially. But, if you give a REALLY-REALLY good and legitimate reason for wanting to back out of the settlement, and it’s in “your best interest” they are bound by oath to work for the best interest of their clients.”(Incidentally, an attorney can’t fire his client: Attorneys’ WORK FOR THEIR CLIENT and CAN be fired by their client at anytime. But, an attorney can not fire a client (unless client grants permission in WRITING) or must obtain permission by a Motion to be Relieved as Counsel from a Judge to be what is called “Relieved” as a client.)

    • fl_litig8r says:

      I need to correct you with respect to an attorney firing a client. Until a lawsuit is filed, your lawyer can fire you at will. He doesn’t even need a reason. After the lawsuit is filed, your lawyer does need leave of court to withdraw from representing you, but these motions are routinely granted except on the eve of something large happening in the case, like trial or a response to a defense motion for summary judgment being due. So, to pretend that it’s difficult (or impossible) for a lawyer to fire a lawyer is just naive. It would be more accurate to say that your lawyer can easily fire you at any time, barring a few exceptional circumstances. Of course, if your lawyer doesn’t want to represent you any more and you somehow get the court to make him, expect him to put in the minimal amount of effort needed to avoid an ethics violation or malpractice.

      With respect to your representation that the client can fire his lawyer at any time, this is true, but as I discuss in this article, you may still owe him attorneys fees after you fire him. Also, taking the attitude that a lawyer is your employee is not only factually incorrect, it is a sure way to make your lawyer want to fire you.

      • Isis says:

        With-All-Due-Respect, you already conceded that an attorney does need leave by court to withdraw as counsel by Motion and the Motion should list/include the reasons. So, as I said they can’t just “fire” a client. News flash,…Wait for it now…Attorney’s WORK FOR & are HIRED BY THE CLIENT. So, how can you be fired by someone you HIRE and are PAYING. IMPOSSIBLE! The CLIENT has final say. And, the attorney should only be offering legal advice, support, and guidance through legal proceedings not DICTATING. An attorney is simply a service provider, providing legal services. You can’t be FIRED by a service provider even if they are an attorney. They are HIRED by Retainer Agreement and fee/deposit paid for their SERVICES. An attorney can quit, just like you can quit any job — ONLY before a notice of appearance is filed with court, which has to be VERY EARLY in the case or else how can they file legal documents, negotiate, file discovery & motions etc…and rep. client to adversary. Once a notice of appearance is filed an attorney can not quit (or be relieved as attorney of record) working on behalf of a client (unless client grants permission in WRITING) or must obtain permission by a Motion to be Relieved as Counsel from a Judge to be what is called “Relieved” as a client.)! I guess that is what’s going to make me a GREAT attorney one day because I am aware I not only represent my client: I WORK on behalf of my client. Been nice debating with you. Be Well.

        • fl_litig8r says:

          I don’t know why you seem so hostile (caps lock and all), but for you to say that a lawyer dropping a client is “quitting” as opposed to “firing” is just playing semantics. And, as I’ve already explained, a motion to withdraw is only required after a lawsuit is filed, and they are basically rubber-stamped by the court unless filed on the eve of something big happening in the case. Courts typically don’t require the lawyer to go into any detail as for the reason for withdrawal, because such details would usually hurt the soon-to-be-former-client. They are largely a formality, which you don’t seem to understand because you don’t have the experience I do. You describe things the way you *think* they should be based on your reading of the rules. I’m telling you how they happen in the real world.

          Clients can be and are fired against their will by their lawyers every single day, and it’s not a big deal. To call it anything else is just denial as to who is breaking up with whom, and, as I said before, semantics.

          Being argumentative just for the sake of arguing won’t make you a great lawyer. You’ll come to realize that some clients are just not worth keeping from either a financial or personal standpoint. Some are just downright unreasonable and/or rude. You will fire them, and you will call it “firing them” — and there’s nothing wrong with that.

  25. InjuredinFL says:

    Hello, I was rear ended about two months ago. The other driver took off, but luckily I was able to get license plate #. He was charged with hit/run and NVDL. (Sidenote..he only was fined for this even though I have injury). I suffered from concussion and a pretty messed up upper back/neck. I was given a brain MRI due to daily migraines, confusion and dizziness (found some white matter but nothing life threatening). I am getting PT for my back and neck which has been working, albeit slowly. I just had a re-eval and the dr recommended an ADDTL MRI this time for my back and neck. Now Im no dr but I think its excessive and Im pretty convinced Im not going to do it. I live in FL so my bills now are pretty close to reaching PIP limit and the at fault driver’s BI policy is 10K/20K. My 3yr old son was also in the backseat but thankfully he had no injuries just a bit shaken up. Im concerned at the end of all of this Im going to wind up with a HEFTY medical bill if I continue with all these tests. I can see maybe 2 more weeks of PT along with me just taking it easy at home but what they’re trying to treat me with is going to drown me in debt! My lawyer says its up to me (just inform them) but I also dont want to ruin my case by refusing treatment. I just dont feel its necessary. Im functional I just have to take it easy. my headaches are gone along with dizziness and confusion. If I try and overdo it I do get tension headaches but I now know what my “new” limits are. Thoughts? Is it common for clients with small claims to wind up owing lots of medical bills after settlement?

    • fl_litig8r says:

      It is pretty common for clients with small claims to get very small part of any settlement due to overtreating, but it’s less common for them to actually wind up owing money after the case is over. Even in cases where the person has no health insurance, lawyers are usually able to negotiate with medical providers about their bills so that the client doesn’t wind up owing money after a settlement. If you have no health insurance or UM insurance, you’re right to be worried that your medical bills might ultimately exceed the at fault driver’s limits, especially after attorney’s fees and costs are deducted.

      Neither your lawyer nor I can tell you whether you need the second set of MRIs. I also can’t say whether forgoing them will hurt the value of your case, because that would require me knowing what will show up on them. If they come back negative, then they don’t help your case — but there’s no way to know this in advance. I understand your dilemma, but I think you know that no one can help you with this decision, except maybe your doctors. See how strongly they recommend the new MRIs — is it just to be thorough or are they pretty convinced there’s something there, like a herniation? They may not be willing to tell you that you really don’t need the test, because if they’re wrong they could face a malpractice suit.

      In sum, it really depends on how you feel and how strongly your doctors are pushing for the new MRIs. Don’t worry about hurting your case, as you don’t even know if those MRIs will help or hurt you. Make the best decisions you can, putting your health first and lawsuit second — but you are smart to keep your medical costs reasonable if all you have left is the possible recovery from the liability carrier.

  26. Kim S. says:

    Hi! My fiance and I were t-boned in January. I had no controls and he ran a stop sign while speeding. It is now June and My insurance company has sent a letter saying that they have found that we can end PT. The PT office is telling me to still come because we are not well but I am skeptical. I asked her who would pay the bills and she said “we will pay the bills.” I am no fool and I know that those bills will be added on the back end of the settlement….am I correct? Should I continue to do the therapy if we both have multiple herniated disks? Will the money be taken out of the settlement? Will it hurt our case if we stop going now? and what is a good range to ask for when the atty asks us? The driver in the other vehicle is actually an injury lawyer and I believe he has the max on his BI insurance. What’s a lady to do?

    We live in NY if that matters ;)

    • fl_litig8r says:

      With respect to the bills, if your own insurance (either auto or health insurance) won’t pay, then future PT would likely be done under a letter of protection, which, as you guessed, means you pay for it out of the settlement (and technically, you still owe it even if you recover nothing from the lawsuit). If you’ve been using health (not auto) insurance to pay so far, you already likely have to pay back your insurer for the accident-related treatment they covered — though, I assume you’ve been using no-fault auto coverage so far, which generally doesn’t have a right to reimbursement. You should discuss with your lawyer the possibility of suing your own insurer for cutting off your PT (it may require arbitration in NY). What he says should give you a good idea about whether further PT seems reasonable, or if it’s just running up your bills at this point.

      As far as whether stopping PT will hurt your case, it really depends on whether more PT is medically reasonable. If it is, then it may hurt your case to stop — if it’s not, then you’re just saving yourself from having to pay back unnecessary medical bills that likely didn’t add value to your case. Is your continuing PT medically reasonable at this point? I don’t know. I can say that I really doubt that PT is going to make or break a case involving multiple herniated discs.

      With respect to the value of your case, I wrote an article with some general rules of thumb for figuring this out. Of course, these are merely rules of thumb and not some hard and fast system you should rely on over what your attorney thinks. He has access to information on jury verdicts and settlements for similar cases in your area (kind of like how a realtor uses “comps” to value your house), and he knows your case a whole lot better than I do.

      • Kim S. says:

        You’re the best, thank you so much!!! I feel like the PT helps but I’m just a little worried about the lawyer and the PT office being “in bed with each other.” We did not find this lawyer on our own, she came in to the office on our second day and said she (well really her paralegal)would be representing us and this is a “one stop shop” where we wouldn’t have to do anything but show up. Can you please provide a link for the article that I wrote so I can read it?

        • fl_litig8r says:

          I linked it in my last comment (click on the words “an article”). If I mention one of my other articles, I’ll almost always include a link in the body of the sentence mentioning it. Maybe I was a little too subtle with that one.

  27. unsure says:

    I was the passenger of a car accident that was rear ended by an 18 wheeler in traffic. Due to this accident I have serve back pain. Living in the state of Pa Unfortunately I have and talk to both sides without a lawyer. Signed a paper to stating I have no car insurance…etc. Did I put myself in a bind am I entitled to receive anything for my bodily injury. Should I contact a lawyer after this please help I need some advise.

    • fl_litig8r says:

      Well, you forced me to look into Pennsylvania’s no-fault car insurance laws, and it’s quite an interesting system. Pennsylvania is a “choice no-fault” state, which means that when owners of vehicles buy insurance, they are given the option (1) to choose to partake in the no-fault system which limits their right to sue an at-fault driver for certain types of damages (in exchange for lower premiums) or (2) to retain their full tort rights.

      Those who don’t own a vehicle that is required to have insurance coverage (like a passenger who doesn’t own a car and isn’t covered under a relative’s auto insurance policy) retain their full tort rights under Pennsylvania law. The reason the at-fault driver’s carrier inquired about whether you have auto insurance was to determine whether you still have your full tort rights, which apparently you do. This means you can sue them for all of your damages, regardless of whether you meet the no-fault statute’s “serious injury” requirement. This will also favorably affect the amount of money they would be willing to offer you to settle the claim.

      Before you do anything else, you should at least consult with a local personal injury lawyer. I have no idea how bad your injuries are (and you may not know, either, if you haven’t gotten adequate treatment yet), so I can’t say if this is a case you could try to settle on your own. If you don’t have health insurance or other medical coverage to pay for your accident-related injuries (and that’s keeping you from treatment you want or need right now), a lawyer can likely help you get that medical treatment while your claim is pending by offering the treating doctors a letter of protection. If you haven’t been getting medical care for your injuries because of your inability to pay for it right now, you should definitely talk to a lawyer. Not only does this hurt you physically, but the lack of care and the absence of a definitive diagnosis really hurts your legal claim as well.

  28. Mike says:

    I had a severe injury at work in 2008 that left me with chronic pain as well as not beind able to continue in the only career I ever knew making over6 figures a year and living comfortably according to my salary range. I’ve Had several surgeries and numerous visits to chiropractors, physical therapists etc. I also got involved in pain management for a while which really did nothing for me accept turn me into a drug addict. I have since stopped taking all the pain meds and detoxed myself only to wind up beind diagnosed as bipolar because for 5 years I had all these pills chemically altering my brain and then when they were gone I went into a manic state and had to be hospitalized because they told me my brain didn’t know how to react without all the pills they had me on. All these doctors did for me after surgery was just prescribe addicting mood altering drugs that messed my head up in the long run. Anyway I had a team of excellent lawyers, some of the best in the state and it took 5 years for me to get 1.2 million dollars which when they were talking about that kind of money it sounded great, but little did I know that there was a workers compensation lean and all the money workers comp had paid me and paid doctors and surgeons had to be paid back before I get my share. So after everyone is paid back and the lawyers get there cut I walk away with a measly 400k for a life time of pain and never beind able to return to the only career I ever knew to support my family… So I did what I thought was best, I had been going back to school to get a bachelors degree while waiting for the settlement to come through (mind you I racked up 30k in student loans) but I couldn’t pass the required trigonometry class after 3 attempts so I dropped out. Now with the 400k I paid off my cars paid off a lot of other debt and did some minor renovations to my house.. I also started a business and dumped a considerable amount of money into the business… The business went well for a while but then went belly up and now I’m left with hardly any money left, no career prospects, people that know me trying to get me back involved in what I use to do not understanding that I can’t do it, I have a large family, a big mortgage and just have no clue what the heck I should do.. I feel as if this should be taken to trial or something and I should be given more money.. I mean 400k for a lifetime? I have 5 kids and I feel totally screwed – I’m depressed all the time even though I see a shrink and am on meds I have no idea what to do to support my family. I was kind of counting on this settlement to take care of me for life and even after investing a large sum of money with my financial advisor, I’ve had to keep pulling money out to pay bills because there’s no money coming In.. I’m really at a loss for what to do here?! One good thing I guess is I had another accident not long which reinjured me as well as added more injuries and there is a lawsuit pending on that but I’m not sure how promising it looks… I’m totally freaking out and I’m worried about not beind able to provide for my family. I mean, I was use to making a lot of money when I worked and never thought about possibly getting hurt so because I was able to afford it at the time I bought the nice house and nice cars and bought my kids nice things and did a lot of things I’m no longer able to do anymore which is really ok with me but my biggest concern is having my kids go without because I can’t make a living making the kind of money I’m use to making. What am I supposed to do take a job working minimum wage and if I’m lucky after a forty hour week bringing home $300 ? That just won’t cut it- I made more money than that in a day.. I’m at wits end, I can’t sleep, it’s effecting my relationship with my family because I’m so miserable all the time and have no desire or willingness to get up and do anything because I feel like what’s the point, I just keep getting defeated every path I take. Aside from the business I started I also trained thou roily for 3 other different non physical career paths which didn’t work out and I’m at wits end now having no clue what to do next… Could somebody please offer some advice on what road I should take to get me where I need to be.. Thank you for any and all suggestions

    • fl_litig8r says:

      It really sounds like you’re asking for life advice, not legal advice. I feel for you, but I can’t tell you how to get a great new career from scratch that will allow you to keep your lifestyle — believe me, there are plenty of lawyers out there (myself included, at times) who want to do something else career-wise, but just can’t come up with anything that will still pay close to what they’re used to making. While your situation is obviously worse because you currently don’t have a job, and I’m comparing you to people who have one they hate, the difficulty in transitioning from one career to another is comparable. Short of some brilliant inspiration that leads you to a new high-paying career (or winning the lottery), you may have to come to terms with taking a job that pays less, perhaps significantly less, and scaling back your life. It sucks, and I know that you don’t want your family to suffer, but it’s not your fault. I’m guessing you’re feeling pretty guilty right now for not being able to magically come up with a solution to allow you to keep providing for your family as you once did, but that guilt is misplaced. Bad things happen beyond our control, and a few of those things happened to you. Beating yourself up and getting angry and frustrated is a normal initial response to your situation, but if you keep doing it and never accept that you might have to sacrifice some material comforts (and maybe have your kids attend a school with cheaper tuition), you’re just going to keep making yourself, and likely those around you, miserable.

      I’m not saying you should take some minimum wage job, but you shouldn’t expect to start a new career making close to what you made at your last job. Perhaps you could find a job that you find more emotionally rewarding, like a job in which you feel that you are helping people and making their lives better — one where the money might suck but that still allows you to take pride in what you’re doing, because I think pride is playing a large role in how you’re feeling right now. You’ve invested a lot of pride in being your family’s financial provider, but you as a husband and father bring more to the table than just money. It’s incredibly hard, but try not to let a severe financial setback poison your entire relationship with your family. Withdrawing and brooding over what you once had may cost you what you still have. Give your family a little credit, and believe that they can accept a change in lifestyle as long as they still have you. If you haven’t already, talk to your wife honestly about what you’re going through — how lost you feel. If you try to hide what you’re going through, your family won’t understand and won’t be able to support you in your time of need. Even if she doesn’t have an answer to your job crisis, sharing your pain with your wife is part of what being married is about. If your wife or one of your kids was feeling as you do, wouldn’t you want to know so that you could comfort them? Let them do that for you — ask for and accept their help and support.

      With respect to your legal issues, I don’t see anything you can do about the case you already settled. I can’t really say that it was a bad settlement, either — having to pay back workers comp and having to pay your lawyer is standard in personal injury cases, and a $1.2 million settlement (despite what you netted) is nothing to sneeze at for even a very serious injury. I don’t know what you can expect for the new case, aside from the fact that you’ll have a steep hurdle to overcome due to the severity of your preexisting condition. You were already disabled from doing your previous job, so I don’t know that you can expect much in terms of wage loss damages.

      I’m sorry if you feel that I’ve overstepped as far as my “life advice” goes — I don’t know you, your family or your whole situation. I do speak from some experience, though, where I didn’t do as I’ve advised you to do and things turned out pretty badly in my personal life — so I’m hoping you don’t make the same mistakes I made.

  29. Confused Mona says:

    My lawyer took his fee based on the gross settlement amount. My health insurance company settled for less and my attorney claims that is payment to him made by my insurance for recovering the money. There was nothing to recover, he had plenty from the check he received on my behalf.
    Is he right to keep that money or does it belong tome?

    • fl_litig8r says:

      I’m confused by your question. I get the part where the lawyer took his fee from the gross settlement, which is normal. I don’t understand your second sentence at all. If your health insurer accepted a reduced amount to settle its lien (which is common), the result should be that this reduced amount is taken from your share of the remainder of the settlement (after fees and costs). If you are saying that your lawyer charged you an additional fee based on the reduction he obtained from the health insurer, that’s wrong. He shouldn’t do that.

      Here’s how it should work, if you assume the following (I’m leaving off costs to make things simpler, but those get taken out at the same time as fees):

      • Settlement for $100,000
      • Attorney’s Fee of 40%
      • Health insurance lien of $30,000, reduced to $18,000

      In this scenario, your lawyer should take $40,000 as his fee, pay $18,000 to the health insurer, then pay the remaining $42,000 to you.

      If your lawyer took $40,000, paid the $18,000 to the health insurer, then took another $4,800 as an additional fee for obtaining the $12,000 health insurance lien reduction (paying you $37,200), that’s wrong. I don’t know any attorneys who try to charge an additional fee for negotiating down health insurance liens — that’s really considered part of the service that is paid for from the standard fee in a personal injury case. I don’t even know that this would be ethical to do if your fee contract specifically provided for it (you should check your contract, though). If he is taking a second fee for the health insurance lien negotiation he did himself, this is something I would dispute and bring to the state bar’s attention.

      It should be noted that some states, like New York and Utah, allow additional charges for health insurance lien reduction if your lawyer refers the lien reduction matter to an outside firm, and the fact that he may make such a referral to resolve liens is expressly stated in the original fee contract. I have yet to see any ethics opinions approving the practice of the personal injury lawyer charging an additional fee for performing the lien reduction work himself. Even though negotiating liens has become so complex in certain cases that state bars are approving the outsourcing of this work (and passing some or all of the cost of that outsourced work to the client), I think most bars would take issue with a lawyer charging extra for doing the lien work himself.

  30. Confused Mona says:

    That is exactly what he is trying to do. I talked to my health insurance company and they told me that he paid the requested, reduced amount. They also explained to me that it is standard procedure to reduce the lien amount if an attorney is involved as a benefit to the patient.
    I wanted to verify that I was right before I talked to him.
    Thank you very much for your response.

  31. Curious says:

    Curious if it’s legitimate as a lawyer to take your overall % connected to a gross contingency contract and also take a lump sum dollar figure noted as attorney’s fees for the time between contesting an arbitration award and settlement date prior to trial date out of the overall settlement payout?

    The defense ultimately withdrew their trial de novo & ended up settling for the originally awarded arbitration amount near $28K, however, the attorney added an additional $1K in costs and $9K in fees to account for his time between the date they initiated trial de novo and ultimately settled. I noticed the larger dollar amount listed as the “settlement” of $38K at the time of signing the final settlement release, however, there was no itemization. My assumption would be he should take x % of the overall “settlement” as the contingency fee, period. However, he took x % of the original amount, took the extra $1K for additional costs and $9K for said fees in between since they were now required to pay. This amount is large as compared to the amount of time he truly was actively working this case. There is no way that dollar was wracked up connected to this cut and dry no fault case. We barely spoke with each other.

    Side note, yet essential: he encouraged me to not take their initial offer during the settlement process of $25K when they decided to settle. I realized it was so he could receive his extra attorney’s fees (unknown $ figure at that time) that he wouldn’t have received if I had accepted their initial settlement offer, so I did it, thinking we were working on this together and would both benefit. This did not happen. He benefited. In the meantime, I personally incurred additional medical bills near $1K and paid out of pocket for an exam at $500 for further exploration medically and per his encouragement to help the case & he will not reimburse me them. He sees it as my requesting he pay my medical bills. I see them as costs which are similar to those he was able to get reimbursed out of the settlement. Honestly, it would have been easier on me and have ended the process sooner if I had taken the $25K. He gained an additional $9K + costs reimbursed and I am out of pocket $1500. Seems ethically questionable. Current date, he requested my approval to payout majority of the funds to himself, me and the insurance company, yet, is holding the disputed amount of $1500 in trust. Why? How do I access it? Or, is this to say I need to formally dispute his fees in order to receive? Which is a hoop he’s waiting to see if I jump through. If I don’t, he receives. Furthermore, what is the process to dispute that amount and receive?

    Thank you for your time and expertise. Much appreciated!

    • fl_litig8r says:

      You don’t say what state you’re in, but it appears from your IP address that you’re in Washington, so I’ll work from that presumption. I’m not 100% clear on what happened in your case, but it sounds like you arbitrated a no-fault PIP case against your insurer and were awarded roughly $28,000. The insurer then requested a trial de novo, which in cases like this is basically like an appeal of the arbitrator’s decision. The insurer then dropped the request for trial de novo. Because it had failed to improve its position from the arbitration award through the trial de novo, the insurer was ordered (or settled) to pay your lawyer his fees and costs for the time he spent on the trial de novo in the amount of $9,000 in fees and $1,000 in costs. Your lawyer then charged you his contingency fee percentage on the underlying arbitration award of $28,000, as well as the $10,000 he was paid specifically as fees and costs from the trial de novo. Whether he actually worked enough time to generate $9,000 in fees on the trial de novo is really neither here nor there — the insurer agreed or was ordered to pay that amount, so apparently he convinced them that he did. There may also have been an attorney fee multiplier at play, which in some contingency fee cases can pay the lawyer a certain multiple (in Florida, this can go as high as 2.5x, but other states are different and I’m not sure what Washington’s cap is — I read one site that said 3x) of his standard fee to account for the risk of taking the claim on a contingency basis.

      So, your first question is: can your lawyer take both the prevailing party fees and a contingency on the underlying award? After doing some research on Washington law (I’m really hoping you’re from Washington, now, because that took some time) it appears that the state bar is fairly liberal in what it allows its attorneys to charge for fees (e.g., there is no strict contingency percentage cap as there is in Florida). I found some cases which imply, without specifically ruling on the issue, that a fee agreement that contains the proper terms would ethically allow a Washington attorney to collect both a contingency fee and court awarded “prevailing party” fees for the same case. So, you should start your inquiry by reading your fee contract. Does it state that your attorney is entitled to both a contingency percentage and prevailing party fees? If it does, then the issue is whether the $9,000 paid for the trial de novo is definitely meant to pay attorney’s fees, as opposed to increasing (in whole or in part) the amount of the underlying claim. If it’s clearly for attorney’s fees (and his contract provides for both a contingency and prevailing party fees), then my best guess would be that he can ethically take the fees that he did. Again, I’m not a Washington legal ethics expert, so take my opinion for what it is worth.

      As far as your $1,500 in additional medical costs, I don’t really see him being in the wrong on this issue. If your contract provides that costs will be deducted after fees, then it doesn’t matter if that $1,500 should be considered as costs — you’d get the same amount from the settlement either way. If it provides that costs are deducted before fees, then there’s really only the percentage of that $1500 attributable to his percentage that is in dispute (so if he had a 40% fee, $600 of what he took in fees is in dispute). That being said, if these bills were for medical treatment, as opposed to something you would not have done but for the lawsuit, then those costs should be borne entirely by you. Even if the treatment incidentally benefits the case, as all medical treatment does in a personal injury case, that wouldn’t be sufficient to turn those bills into “costs”.

      You should consult your state bar’s website for information on resolving fee disputes. It appears that arbitration may be an option, though I’m not sure if the small amount at issue (the $1500) really warrants such a step — it seems that this is something that could be worked out just by discussing it with the lawyer.

  32. NervousabtBills says:

    I have a case pending now. The other driver is 100% at fault (they admitted). I followed my treatment plan for concussion and neck pain /upper back pain. I received a letter from my attorney saying they submitted the demand package. I was in the car with my son. He had no injuries (3 year old) just an emergency visit. The other insurance company just sent paperwork paying out MAX 1 PERSON. $10K for me only. We’re in Florida and the at fault driver has $10K/$20K bodily injury, $20K being the max per incident. Shouldn’t I be collecting the entire per incident amount? $10K isn’t going to cover my medical bills! This was a concern I stressed with the lawyer and Dr from the beginning. Help?

    Sorry to add I live in Florida and my bills are about $18K. Some have been reduced already but that’s the total billed.

    • fl_litig8r says:

      No, you are limited to the $10,000 “per person” limit. Here is how per person/per accident limits work using your example of $10k/$20k split limits. Each person injured in the accident is limited to $10,000 worth of coverage and all the people combined are limited to $20,000 worth of coverage. So if you have 2 people hurt, with one suffering $15,000 in damages and the other suffering $6,000 in damages, person #1 can recover $10,000 (the per person limit) and person #2 can recover $6,000 (because there is still $10,000 left in coverage under the per accident limit and his claim is lower than the $10,000 per person limit). To show how the “per accident” limit comes into play, say we add a third injured person with $10,000 in damages. Now we are faced with the problem of the total payable claims exceeding the per accident limit, because person #1 can recover $10,000, person #2 can recover $6,000 and person #3 can recover $10,000, but all three claims total $26,000, which exceeds the $20,000 per accident limit. In this case, typically the insurer will try to settle all three on a pro rata basis, paying each claimant the percentage of the $20,000 available based on the relative amount of their damages, with no individual claimant getting more than $10,000, the per person limit.

      I know it sound complicated, but to try to make it simple, the “per person” limit still applies to each individual’s claim, no matter how many people are hurt in the accident. The “per accident” limit only applies when multiple injured people’s claims combined, even after applying the per person limit to each, exceed the stated “per accident” amount.

      I’m sure your lawyer has already asked this, but if you have UM insurance, it will pay the amount of your damages that exceeds the at-fault driver’s $10,000 per person limit, up to the amount of your UM limits.

  33. sorryforbeingvague says:

    Hi! I reached a settlement during an ADR process with the defendant. The case is in Nevada. The agreement included monetary and non-monetary awards. Nothing was signed, the agreement was just read into the record at the ADR meeting. The defendant now says that they cannot (or will not) furnish the non-monetary awards. To me, if they can’t meet the terms of the settlement agreement, then the settlement is void. I asked my atty to file for a withdrawal from the agreement and he freaked out and is threatening to withdraw from my case. Am I right about the agreement being void if the defendant can’t meet the terms?

    • fl_litig8r says:

      A settlement, like any contract, is not “void” just because of a breach. If the defendant will not perform, but can, in theory you could sue them for specific performance — you basically ask the court to order them to do what they agreed to in the settlement. Specific performance will usually only be granted when the breach cannot be cured by money damages, so you may be able to ask for those in the alternative.

      If the defendant cannot perform, then I’m not sure what you’d get out of trying to rescind the settlement agreement, because even if your lawsuit is reinstated you wouldn’t be able to get the non-monetary relief you seek. If they can’t perform, a court order won’t change that. You should be aware that if you attempt to bring a lawsuit for rescission of the settlement agreement, you may be required to first tender the money you received in the settlement back to the defendant (or pay it into the court’s registry like an interpleader). This is likely one of the main reasons your lawyer isn’t happy with you wanting to rescind the settlement — you’re trying to take money out of his pocket (although it would be interesting to see whether a court would require a lawyer to refund a fee on amounts the lawyer actually recovered, but the client voluntarily decided to return to pursue a rescission claim). Expect that he will withdraw if you insist on pursuing the rescission, and he’ll likely fight you over the fee.

      If at all possible, I would suggest a lawsuit to enforce the settlement, not rescind it. As I stated above, you might be able to get specific performance or additional money damages for the defendant’s failure to deliver on the non-monetary terms. The only reason I would see to seek rescission first would be if you are just not happy with the monetary portion of your settlement and you’re now using the non-performance of the non-monetary terms as an excuse to try to get a do-over and get a larger cash award. If that’s the case, and this is just buyer’s remorse over the settlement, know that even if you obtain a rescission you may not fare better even if your original claim is reinstated. You may recover less (or nothing) if the case is fully litigated. Plus, you’ll be out the settlement money you had to pay back while the claim is being re-litigated.

  34. sorryforbeingvague says:

    Thank you for the comment. I wish the lawyer I’m actually paying would have explained the options! No money has changed hands yet. We had just received the written agreement draft, but ownership of some documents (agreed upon in the ADR process) wasn’t included. They said they didn’t own the docs (created for a client) and couldn’t give them away. It’s not always standard in my industry that a client retains ownership of documents; it depends on the contract, which I’m not privy to. The documents are important to me in that they represent potential future earnings if i can use them in a portfolio. In any case, my lawyer dropped me this morning so I’m on to the next battle- finding an atty who will take my case after my last atty dropped me for “backing out of a settlement”. Thanks again for all you do here. The legal process is incredibly frustrating for someone who is not in the law profession, and it’s so nice to have someone be willing to be frank and helpful without having a stake (and therefore an agenda) in the case.

    I was being hyperbolic when I said “the lawyer I’m paying”. It’s a contingency fee arrangement.

    • fl_litig8r says:

      To be honest, I think you may have screwed up here — especially if you’ve told the other side that you’re not going through with the settlement. As I said in my last reply, if the defendant cannot give you what you want, no amount of further litigation will change that. I really don’t know how the value of the ownership of these documents compares to the amount of money you’re giving up in the settlement, so I can’t say for certain whether you’ve made a mistake. I also don’t know if you gave the defendant a big discount on the cash portion of the settlement due to the documents supposedly being part of the bargain, and that now you’ll be entitled to a much larger cash award should you prevail at trial. If that’s the case, then maybe you made the right decision.

      Either way, expect some trouble finding a new lawyer to take over where the old one left off. Most lawyers don’t like inheriting other lawyers’ cases in general, but they’ll be really reluctant to take on a client who backed out of a settlement, regardless of how good the reason was. Be ready to explain your reasons and why you think your case is more valuable than the cash you had agreed to previously.

      • sorryforbeingvague says:

        Thank you again for the reply. You don’t have to post this, but just so you know the outcome… My lawyer lied, he didn’t file a Motion to Withdraw like he said he did. The defendants decided that they could give me the documents. My lawyer decided that he could stick around to finalize the settlement. All’s well that ends well and I hope I’m NEVER in such a situation again. Thanks again!

  35. blue eyes says:

    So my lawyer never talks to me about anything nor does my chiopracter by the way.they are friends.i have three herniated disc and my chiopracter fee so far is 8000.i have 25000 for protection. Now he wants to settle for 5000 leaving me with a 3000 dollar in my pocket i declined the 5000 an hes saying my mri isnt that bad and i need to stretch which i do. He says if he takes it to trial i may eventually end up owing money. I my back freaking hurts im still working and going to school and he said thats bad.this is my first accident i was in the passenger side.i knowmy chiopracter does fraud and i don’t know what to do because i started treatment in december and went for four months and his bill is 8000. How can i do my own investigation on this. Should i contact my adjuster if so what should i say should i go to a orthapidex to evaluate me i dnt know please help me u can even call me [phone number removed by admin] thanks

    I live in fort Lauderdale floridaby the way

    • fl_litig8r says:

      Do not call the adjuster on your own. He probably wouldn’t speak to you while you have a lawyer, anyway. Also, don’t think that you can just fire your lawyer to settle on your own and get out of paying his fee.

      I’m a bit unclear on some of your facts. You say that you have $8,000 in chiropractic bills, but were those paid under your PIP (and maybe med pay) coverage, or do you have $8,000 in bills above your PIP coverage? If these bills were taken of care by your PIP coverage, and you have no significant wage loss (again, beyond that which was reimbursed by PIP), it doesn’t sound like you have much to scare the defendant with. Under Florida’s no-fault statutes, unless you suffered a permanent injury, you can’t recover any non-economic damages (pain and suffering) from an auto accident — you can only recover the amounts of your medical bills and lost wages not paid for by PIP. Right now, with only chiropractic care and an unimpressive MRI, I doubt that you’d be able to prove that you have a permanent injury. This is probably why your lawyer thinks that the $5,000 offer is fair, because if you have less than $5,000 in economic damages, you’d likely be awarded that lower number (with $0 for non-economic damages) if you went to trial.

      If you think that you haven’t received adequate medical care to diagnose and treat your injuries, that’s another issue entirely. Of course, if they’ve already done an MRI on the affected area and haven’t found anything significant, it’s likely that your injury is purely soft tissue. These can be painful and take a long time to heal, but they are frequently found not to be “permanent” when a plaintiff tries to argue this at trial. If you want peace of mind, get another opinion from a medical doctor (not a chiro). Just be wary of running up bills beyond your PIP limits, because if you pay for this care through your health insurance or through a letter of protection, you’ll likely have to pay that amount back from your settlement, further reducing the amount you’d ultimately receive.

      If your injuries have been adequately explored, your lawyer is probably right that $5,000 is a decent offer. It’s questionable that you’d be able to prove a permanent injury at trial based on a soft tissue injury, and the cost of trying to do so would probably offset any benefit you’d get. If the defendant serves you with a proposal for settlement (this is a formal settlement offer which can only be made after suit is filed) for the $5,000, and you recover less than 75% of that at trial (which could happen if you fail to prove a permanent injury), you can be found liable for the defendant’s attorney’s fees from the date the proposal was served. In that respect, you could wind up owing a lot of money if you gamble with a trial — and the defendant knows all this, which explains the amount of their offer.

  36. blue eyes says:

    So i found someone that could c me and they asked for a letter of protection. Being that the chiropractor used 8000 of the pip.does that mean i have 2000 left for the orthapidex surgeon. Also iasked my lawyer for the break down of mybill and he said he does not have That is that true

    • fl_litig8r says:

      If you want to know how much PIP coverage you have left, call your auto insurer (or they may even have this information online). I wouldn’t just assume that you have $2,000 in coverage left. Remember that standard PIP only pays 80% of medical bills, so unless you also have med pay coverage or extended PIP, you need to take that into account when figuring out whether you still owe a balance to the chiropractor, as well as how much PIP coverage you may have left.

      When you say that you asked your lawyer “for the break down of my bill”, to what bill do you refer? The chiropractor’s bill? Or are you talking about an estimated distribution from the proposed settlement — something that breaks down how the settlement money will be allocated? Really, if your lawyer is suggesting that you take a settlement offer, he should be able to provide you with either. Just realize that an estimated distribution may change somewhat based on costs that haven’t accrued at the time it was written.

  37. Bongoziwe [last name removed by admin] says:

    I Bongoziwe [last name removed by admin] a daughter for [name removed by admin];my Mom got an accident on April 2010;she tried to claim a money for Accident(Raf) bt she got nothing untill today no respond from her Lawyers so now we do’nt know what she can do cz its a long time now 4 yrs full nothing happened

    • fl_litig8r says:

      From your IP address, it appears that you are writing from somewhere in Africa, so I need to start by saying that I know absolutely nothing about the various laws or procedures in any of Africa’s countries. If you’re having trouble getting in touch with your mother’s lawyer, I’d try following the suggestions I give in this article. Just substitute whatever your local equivalent is for our state bars (I’m sure you have one wherever you are — an agency that regulates the licensing of lawyers), should it come to contacting the bar about the non-responsive lawyer.

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