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.

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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.

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.

Settlement tip

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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52 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.

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