For those of you who read Part I of this article (you did read Part I, right?) and decided that you still want to try to settle your own accident claim, here are some suggestions for how to proceed. Always keep in mind that your attempt to settle may fail and you may wind up having to hire a lawyer to sue the defendant. Therefore, you want to be sure that you don’t do anything which may damage your case to such an extent that no lawyer will want to take it after your settlement attempt.
Settling Your Own Accident Case — Before You Start, Know Your “Limitations”
The absolute first thing you should do if you want to try to settle your own accident case is find out the statute of limitations (the date by which you must file a lawsuit) for your claim. I’m not going to go to the trouble of looking up all the statutes of limitations for various negligence claims in all 50 states just to list them here. I’m sure that there are tons of websites (mostly law firm websites, I’d bet) that can tell you what the statute of limitations is for negligence in your state. Google is your friend.
Be aware that if your case is a car accident involving a UM claim, a different statute of limitations may apply to that claim than the one that applies to your negligence claim against the other driver. For example, in my home state of Florida, the negligence statute of limitations is 4 years, but the statute of limitations to bring a lawsuit against your UM insurer is 5 years (this is the statute of limitations for claims brought on a written contract). In your state, be sure that this statute of limitations is not shorter than that for a negligence claim.
While it may seem that the statute of limitations for your claim gives you plenty of time to negotiate a settlement, you must remember that you’ll need to leave a certain period of time left, in case your negotiations go badly, to allow you to hire a lawyer. You’ll have a much easier time finding a lawyer if your case has a year left on its statute of limitations than if it only has a few days. The reason your claim may take longer than you expect is addressed in the following section.
Settling Your Own Accident Case — Do Not Jump the Gun
While I realize that one of the reasons you want to try to settle your own case is to possibly get your money faster than you would if you hired a lawyer, do not try to settle your case before it is ready. Do not make any settlement offers before you have reached maximum medical improvement. This will require a great deal of patience on your part, as it may require you to wait upwards of a year (or more) before you try to settle, but it is necessary to ensure that you are fully compensated.
If you don’t wait until you reach maximum medical improvement, you cannot reasonably calculate how much your case is worth. Your medical treatment may not go as planned, especially if it involves a future surgery. You want to know that all possible medical complications are behind you before making a settlement offer. If you don’t, you risk settling for far less than your case is worth.
The only possible exception I can imagine for this rule is if you’ve already incurred damages which far exceed the defendant’s policy limits. For example, if the defendant has only $10,000.00 in liability insurance and your medical bills are already $20,000.00, you don’t have to wait to reach MMI to demand the full policy limits from the defendant’s insurer. Of course, this is a bad situation to be in (as you won’t be fully compensated), so hopefully this exception doesn’t apply to you.
Contacting the Defendant’s Insurer Before You’re Ready to Talk Settlement
It is very likely that if you don’t contact the defendant’s insurer shortly after the accident, it will contact you. The adjuster will likely be very pushy and eager to learn about your claim and start trading settlement offers. Until you’re ready to make an offer, which will most likely be many months after the accident, politely decline to engage in discussions about the case or talk settlement. Do not give a recorded statement. Do not give the insurer a release to get your medical records or wage information. Let the adjuster know that you will make a settlement demand and provide all relevant documentation only after your have reached MMI. Exception: if you have a car accident case that includes a UM claim, you will have to give a statement and provide the requested documentation to your UM insurer (and only your UM insurer, not the other driver’s liability insurer). If you don’t, you risk violating your own automobile policy’s “cooperation clause” (which requires you to cooperate in providing claims information) and voiding your coverage.
The only thing you want from the adjuster at this point is the claim number and policy limit information for the defendant. You want this in writing, in the form of the “declarations sheet” (a/k/a “dec sheet”) for the policy. Some states require the insurer to give you this by law; some states do not. For those that do not, the insurer will often voluntarily provide this information anyway in the interests of trying to settle the case. If you’re in a state that doesn’t require liability policy limit disclosure and the insurer won’t provide the information to you, you can still try to settle your case, but it will be harder. You may just want to hire a lawyer if that happens.
Things You Should Gather Before You Make Your First Settlement Offer
Your first settlement offer should be in writing, in the form of a demand letter (more on that in Part 3). It should be accompanied by all of the documentation that supports your claim. This includes your medical records and medical bills from all relevant medical providers (click this link if you need help in getting medical records). If you have documentation to support a wage loss claim, such as pay stubs from before the accident and anything showing that you missed work afterward, that should be included with your demand. If it’s a car accident case, you need to get a copy of the long-form accident report, which should also be included. If there were witnesses to your accident, see if you can obtain written witness statements, along with their contact information.
For your own benefit (not necessarily to include with your demand letter), if you used health insurance to pay for your accident-related treatment you should request subrogation information from your health insurer. This is an itemized listing of all payments your insurer made for accident-related medical treatment. You need this in order to know how much you’ll have to pay back to your health insurer from the settlement of your accident claim. You can get this information by calling your health insurer’s subrogation department.
You should also make a list of all of your out-of-pocket medical expenses, such as co-pays, over-the-counter medications, orthopedic braces, hot/cold packs, crutches, bandages, etc. You should gather your receipts for these items, even though I really don’t suggest including them with your demand letter. This is more for your personal use in preparing the demand, or for if the insurer requests that you support your claimed expenses (usually these are a drop in the bucket compared with your other medical costs, so it’s not an issue).
If you have any photographs that are relevant to the accident or your injuries, such as pictures of your damaged automobile or of any visible injuries to your body, make copies of these to include with your demand. If your case was a slip and fall, you can take pictures of the shoes you were wearing (assuming they are sensible and actually help your case) at the time of the accident. If the slip involved a liquid which got on your clothing, any photos which show the wet clothing may be helpful. As a side note, you should always try to preserve the shoes and clothes you were wearing during a slip and fall as they were after the accident — don’t wash them or wear them again. If you fell due to a hidden hazard, such as uneven pavement, that will show up on a photograph, take pictures of that as well.
When You’re Ready to Make Your Settlement Demand
Once you’ve reached maximum medical improvement and gathered all the documents necessary to make your settlement demand, it’s time to write your settlement demand letter. This is covered in Part 3 (the last part, I swear) of this article.