Want to Settle Your Own Accident Claim? Part 2 – Prep Work

Settle Your Own Accident Case Part 2For 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.

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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.

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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.

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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.

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25 Responses to Want to Settle Your Own Accident Claim? Part 2 – Prep Work

  1. LuLu says:

    I’m so sorry for posting this on this particular topic but I couldn’t figure out how to put it on the other topics that were more befitting. Again sorry about that, Sir ! Let me begin by saying “Thank You”! Your honesty in this business is so helpful. The best I’ve found so far! I was going to tell you my whole story but after 3 pages and still so many more to go, I decided against it. Instead here are my Questions: 1. Is it unethical for my attorney to stay at the Ritz Carlton and charge it on my expenditure an amount of $1,653. Keep in mind that my case is in the Ozarks and his firm is in Alabama. By looking at the charges on my itemized bill such as NYC taxi fee, I know it was the Ritz in New York. 2. I have found more than one double charge as in an airline charge of $1,021 on the same day and the same airline. My state has a web site that has all docket entries so I know when my attorneys actually had to appear and if it was 1 or 2. this date only one. 3. There are more airline trips than match my docket appearances. 4. There are charges to the Marriott for $413 , $621 , Westin Hotel $260 and so on . You get what I’m saying. By the way, no it is not in my contract saying that they can fly 1st class or stay in 1st class hotels. 5. They charged me $24,000 for research materials and services. they also charged $4,000 for online research. I’ve asked to see the research material because I e-mailed over 100 stories and web pages about every single thing about the defendant’s company. As a matter of fact their firm lost them all and I had to resend all the information again right before deposition time. I’d also like to mention that the firm I am talking about is a muti-billion dollar firm with well over 20-30 associates. They specialize in my type of case but yet still needed $24,000 in research fees charged to me. Well I’m running on now and there is so much more to say I best go ahead and stop there. Oh one more thing, sorry ! They withdrew from my case because I started asking too many questions and refused to sign the new contract to settle my case. It was suppose to be a class action but class certification was denied and therefore they needed me to sign a new contract. So now I have to find someone to finish the settlement with he defendants. The defendants already made an offer that my layers were going to accept. Ok that all . I hope you have time to give me your opinion, sir. Thank you so much for letting me vent if nothing else !! HaHa. LuLu

    • fl_litig8r says:

      Needless to say, there are several expenses they are claiming which need some serious scrutiny. I give general advice on reviewing your lawyer’s claimed costs in this article, but I’ll address your specific concerns. As to the travel related expenses (first class airfare and expensive hotels), it is unlikely that your lawyer breached any ethical obligations. However, whether you should pay the full amount for these or not depends upon your fee contract. If the contract says nothing about the quality of travel expenses, and doesn’t specifically state that reasonable costs will be “as solely determined by the firm” (or similar language), then you have a chance to dispute these amounts. Generally, when contracts don’t specify a dollar amount for a service, a “reasonable” amount is inferred. One could easily argue that first class airfare and luxury hotels are not reasonable expenses, assuming more affordable options were available.

      An additional concern I have, which is raised by the fact that your lawyer was trying to seek class certification, is whether the expenses claimed were really incurred solely on your case. If your lawyer has multiple cases involving this defendant, with similar claims, and these trips and other expenses were for the benefit of all of these cases, the expenses should be split among them accordingly. For example, if your lawyer has 5 cases of this nature, and he traveled to depose an expert witness to testify as to whether the product (assuming it’s a product liability case) is unsafe, the cost of that deposition and the associated travel should be split 5 ways among his cases. The same applies to his claimed “research”, which I’ll now address separately.

      A law firm shouldn’t charge you the cost of doing standard legal research (caselaw and statutes), as this is really just part of a firm’s overhead that is paid for from their attorney’s fees. If something extraordinary needs to be researched, such as a law review or other journal article, which aren’t included in most firm’s standard online research packages, the extra cost of this, which is incurred solely on your case, is something I wouldn’t have a problem with them billing separately. However, such an additional cost should be minimal, and I really wouldn’t expect it to exceed $500.00 without the firm letting you know in advance that such costs were necessary to your case. If this firm is trying to pass off its standard monthly Westlaw bill to you as an expense, I’d refuse to pay that (unless you specifically agreed to pay this in your fee contract). Also, if the firm outsourced its legal research, it shouldn’t charge you for this, either (legal research is part of what you get when you pay an attorney’s fee — if a firm outsources its research, it should eat that cost).

      Aside from legal research, some cases do require other types of research, such as medical, which may be necessary and would not be wrong to charge to the client. Sometimes firms will even hire an outside medical researcher to do the research for them, and this can get expensive. I still think that $20,000.00 sounds too pricey for this, without having any knowledge as to exactly what was researched, and by whom.

      You really need to get receipts and invoices for all the costs they are claiming (aside from in-house costs, such as copies and postage, which won’t have a receipt). This will hopefully shed light on what was done and let your next attorney know what costs should or shouldn’t be honored.

      Because that firm withdrew, at least you won’t have to pay them any attorney’s fees, so hopefully you should have little trouble finding a new, more transparent lawyer to take your case.

  2. LuLu says:

    Sir,

    Thanks so much for your response.I just want to point out first of all that the class action was for a plant that was causing air pollution. So as far as traveling to see other possible class members,they were all with-in a few miles area in my home town. So to take a trip to NYC is quite puzzling to say the very least. I sent them e-mails asking for an Invoice, Receipt and/or Canceled Checks for the Outsourced Photocopies, The Court Filing Fees, The Deposition Transcripts, Expert Witness Fees, and of course all of your Travel Expenses. I also asked to see the research they charged me for because it is hard to believe that they found any thing else online that I did not already send to them. I just received a response for my e-mails asking for the receipts. Here is the exact words they used; “I have previously sent you a summary of our expenses which should suffice in lieu of every invoice/receipt/cancelled check you ask for.” Now is it just me, or are they purposely trying to get out of letting me see the information that I should be allowed to see? Once again they did not even bother to give me any answer about being able to view the research. By the way, only one sent itemized expenses, the other just sent a bill with the item such as travel, online research and such with a total cost for each. When I asked for an itemized bill, he said he sent it already. So he won’t even break them down to see the expenses.
    As for the research they were suppose to have done is what their firm specializes in. They are one of the firms that handled BP and lots of other EPA issues. So I would think that they should already have most of the research that was necessary for my case. There was no medical research done at all for my case.

    I wanted to ask you what you meant by; “Because that firm withdrew, at least you won’t have to pay them any attorney’s fees” I thought I would still have to pay them. Am I not expected to pay them since they quit before my case was done? When I go to find my new lawyer, what kind should I look for ? What should they specialize in to work out a settlement with the defendants? I’m almost tempted to do it myself. That’s what my old attorneys suggested I do. But they were just being snide because I told them that they should have pointed out that there was a real possibility that I would be responsible to pay taxes on their fees. I 1st told them that I would like to get a settlement for an amount after taxes. They told me that wasn’t possible because they are not accountants. Then when researching about taxes, I found out that alot of the time a settlement for a plaintiff is considered earnings that they received and then paid out to the attorneys, there for the plaintiff was responsible for the tax on it. When I pointed out this to my lawyer he got mad and repeated he was not an accountant. I told him I know he isn’t an accountant, but, seeing how long they had been lawyers they surely had knowledge of this. I said I wasn’t sure what bothered me more, the fact that they were clueless about this subject and information or they knew about it and after I had already brought up about taxes they didn’t bother to mention this fact to me. That is when they quit. I refused to sign the new contract because they kept saying they were successful at shutting down the defendants plant, but it wasn’t shut down. It claimed bankruptcy. The kind where they just regrouped and opened back up. They also kept putting other people on my contract. I told them the success part was a fib and God wouldn’t want me to sign my name to a false statement and I am only responsible for myself since the class was not certified, I was no longer a class representative. I was just a client and the fee agreement I thought should go back to being a contingency fee. Now you are pretty much caught up on my case although there are other red flags that were waving in my face from the 1st days.

    Thank you for your input and expertise in the law. It is like I said before, very refreshing to see a lawyer with morals. Sir !!

    Sincerely,
    LuLu

    • fl_litig8r says:

      When I spoke about the travel to New York, I assumed that this was for an expert witness deposition, as experts frequently are out of town. That is why I said it may have been conducted on behalf of multiple clients. If they are deposing an expert to testify as to the harmful effects of a substance, or of the business not complying with industry standards, that is testimony that would apply to multiple cases — not just yours. If this is the case, the cost of that trip should be split among all parties who will benefit from that testimony.

      As far as them not providing invoices, that is just straight up bullshit. If a client wants to see the invoice for a claimed expense, you give it to her. If they can’t or won’t produce invoices, that is a strong indicator that they are claiming bogus or inflated costs. Don’t pay for any outside service (in-house things like copies and postage won’t have an invoice) they used without seeing an invoice. Summaries may be fine if the client doesn’t question the costs, but when she does, the lawyer needs to be able to back them up.

      As to you not owing them any attorney’s fees, I don’t know of any jurisdiction that allows attorneys to recover a fee if they withdrew due to the client not wanting to settle for an amount recommended by the firm. Generally, unless an attorney withdraws for cause (and the client not wanting to settle is not “cause”), he can’t claim a fee afterward.

      Finding a new lawyer is just going to require some research by you into firms that handle these types of pollution/environmental claims. If you have no luck finding one online, you could always call your state bar’s attorney referral service (this will be free) or just call some local personal injury lawyers, as they will likely know the firms who are handling these claims aside from the one you just left.

  3. LuLu says:

    Sir,

    Thanks again for your advice. I plan on sending you the $10 for your tip on settling a case as soon as I load my pre-paid credit card again. (I don’t have a regular card that way I don’t have any debt!) As a matter of fact I plan on sending $20 because your advice and honesty has been well worth it !I have a quick question though, if I could. How long is a reasonable amount of time to wait for my files to be sent to me? It’s been 2 months now since they withdrew from my case. I last e-mailed them asking once again for my files, about 3-4 weeks ago now. I was wanting them so I can take them with me when I interview my next lawyer. I assume that having my case file instead of trying to explain everything each time I talk to an attorney about taking my case would be the best thing to do. Am I right? Is 2 months a reasonable amount of time? Or am I being too pushy and should wait longer before I contact them again?

    Thank You,
    LuLu

    P.S.
    I tried asking the Missouri Legal Services, Missouri Bar, Circuit Court Office, and even the Judge’s Office that has been assigned to my case. None would answer the question. Oh, and the Disciplinary Office too.

    • fl_litig8r says:

      If it’s just a matter of how long it should take to copy the files, it should have been done by now. Even if they don’t want to have their own people take the time to copy them in house, there are legal-specific copy places that could do this in a day.

      If they are holding the file back due to a retaining lien (a lien they assert against client property in their possession — the file — to guarantee that their costs, not fees, are paid), then you are probably better off finding a lawyer before you get your file. He can reach an agreement with the other firm to protect their valid costs and get your file released.

      • LuLu says:

        Sir,

        The 2 paragraphs below are the last e-mails I received from my attorney’s law firms after they withdrew from my case. If I’m reading them correctly, I do not owe them anything any more. Is that what they say? I don’t want to misunderstand the meaning of these messages.

        If that is what they mean, then how long should I wait for my files to be sent so I can try and find a new lawyer?

        Thank You,

        LuLu

        Please realize that you are no longer my client and consequently you have no more responsibility for any attorneys’ fees or expenses to my firm. Despite all of the work and expense that we put in on your file and our legal right to do so, we have waived our right to claim any fees or expenses in your case with your new lawyer. We did that out of concern for you as we wanted to aid you in being able to get your own new lawyer for your case.

        I believe _____ is right regarding the expenses. You are no longer our client and you have no responsibility for the costs we have incurred.
        I wish you well going forward.

        • fl_litig8r says:

          I don’t see any way to misinterpret that. They specifically state that they are waiving both their fees and costs so that you can get another lawyer. I would have expected them to still want their costs if you got another lawyer, but that is clearly not the case, based on this e-mail.

          Without that issue causing a delay in providing your file, I really can’t say what the hold-up is. It should have been copied and sent to you already. 2 months is plenty of time to do this. If pestering them more doesn’t help, I’d advise just trying to hire a new lawyer without the file and let him deal with the headache of getting it from your old firm. Lots of lawyers have files sent to them by prior attorneys even while they are just considering taking a case — so it likely won’t be a disadvantage to not have the file before you try to get a new lawyer. If he’s interested in your case based solely on talking with you, he can get your file from the old firm before making a final decision. Your old firm probably won’t dilly dally as much if it gets a request from another lawyer.

  4. Demandy Lady says:

    I just can’t tell you how helpful your site has been to me! I am 7 months in to a negligence claim and am preparing to draft my demand letter. Your in-depth article on this was invaluable. I did want to ask if I had the right to know the insured’s policy limits? The claims adjuster and I have corresponded back & forth throughout this, solely via email. I had asked months ago what their insured’s limits were & she responded that she was unable to tell me without her insured’s permission. Can I ask the adjuster to ask her insured to disclose the amount, or just leave it alone? Awful to say, but the person that rear-ended me was driving an older model car & I just have no idea what kind of coverage they have, although I do know that my state’s (OK) liability limits are $25K. My medical bills are approx $15K and I was told I’ve reached my MMI and will require surgery, bringing my medical to well over $45-$50K. Then factoring in more of the economic and non-economic factors you described in your article (pain & suffering, lost wages from the accident & also from the upcoming surgery recovery, etc.).

    Fault is not an issue in this case, as I was stopped on the highway with other traffic and literally watched in my rearview mirror for about 30 SECONDS as the driver came up behind me from almost a quarter mile away, hitting me at about 45-50mph. This person had all the time in the world to look up and slowly come to a stop with traffic, as I did – but he was obviously preoccupied texting or something. Not sure which is worse, the physical or psychological pain, when you watch the whole thing happen before your eyes. Anyway, I have had previous neck issues, which I am disclosing to the 3rd party insurance and it boils down to my needing surgery on 2 discs that were already bulging but have been made worse since the accident. My symptoms are ALL new since the accident, including daily headaches (they have not subsided since the day after the accident), that frequently turn into debilitating migraines, pain down the arm into the hand, constant pain in the shoulder & upper back, etc. and worst of all – incontinence. (the main reason I am having the surgery) I (was) a very active person my early 40’s with a small child and cannot live with this type thing, needless to say.

    My other question would be how the “eggshell plaintiff” rule would come into affect here, since OK is a “fault state.” My neurosurgeon compared the MRI films taken after the accident, to one I had taken late last year. The written MRI report from after the accident says there are 2 additional discs that are now bulging, that were not on the 2012 MRI. The surgeon makes no mention of this in his report, just says I need the surgery on the 2 discs that have been on both MRI’s. (He did mention there was a MVA involved though.) He basically wanted nothing to do with this after i told him it was from a MVA & actually treated me rudely when I asked him to make the MRI comparison and show the accident caused my current symptoms.) My primary care doc mentions the accident in his notes, but makes no reference about the accident causing additional disc bulges or worsening of the prior ones. I know in my heart & mind that there is a huge difference between having “neck pain” & occasional headaches, to now having a constant headache & the other symptoms I mentioned above, especially the incontinence, which has negatively impacted my life both socially and psychologically. I can honestly say that I am now in constant pain, even after the physical therapy & chiropractor visits. Problem is, the insurance company isn’t interested in my “point of view” when settling this case.

    My chiropractor of course, has made the clear distinction in his narrative report about the 2 new discs being affected since the accident and worsening of the 2 that I will require surgery on. I’m afraid that won’t be enough though, based on your article & what I’ve heard about chiropractors not holding much weight w/insurance companies, etc. My main concern is that they will deny my claim all together and say this was an existing condition.

    Because I plan on going through with the surgery to try to regain some quality of life, I filed a claim against my UM, because I’m afraid the cost of the surgery alone won’t be covered under the at fault drivers policy limits. Any help/advice you could provide would be so appreciated.

    Thanks so much for your time and this great site.

    • fl_litig8r says:

      From my own research, Oklahoma law does not require auto insurers to disclose policy limits before suit is filed, but does require disclosure of policy limits through discovery after suit is filed. I don’t see any problem with asking the adjuster if the insured has denied consent to make this disclosure, or asking that consent be specifically requested if it hasn’t already. You might want to include that you are requesting this information because your claim’s value easily exceeds the state’s minimum liability insurance requirements, and not disclosing that their insured’s policy limits, especially if they are the minimum would likely preclude a good faith settlement prior to litigation being required. This is kind of a veiled threat that you are setting them up for a bad faith claim, though you want to keep it veiled — don’t use the words bad faith or threaten to get more than policy limits or anything like that. Trust me — there are strategic reasons for being somewhat subtle and coy about this.

      If you require surgery in the near future, you are not at MMI, and you won’t be until the recovery period after your surgery is done. The only time someone is at MMI and still definitely in need of future surgery is if they had a hip or knee replacement (or similar), and will need the parts replaced in about 15 years. Because you are planning on having the surgery (and I don’t blame you), you risk undervaluing your case by not waiting until you are at post-surgery MMI. Of course, this is kind of moot if you think that the policy limits won’t be sufficient to cover the claim even if the surgery goes perfectly and without complication.

      I wouldn’t really classify your claim as an “eggshell plaintiff” situation. I see it more as a straight aggravation of a pre-existing condition, along with new injuries (the 2 new bulging discs). While technically the term may apply, I’ve usually seen it reserved more for cases where a pre-existing condition is not merely aggravated, but a previous medical condition causes injuries to be worse in a more indirect way (a bone disease causing fractures where there normally wouldn’t be any, diabetes causing wounds not to heal, etc.). Regardless, you are clearly entitled to recover for the amount your condition has worsened due to the accident. With your doctors being jerks (probably tort reform advocates), you’ll have to rely on the actual medical records to show that you have new complaints and a worsened condition since the accident. For example, “My medical records prior to the accident showed that my neck pain was 3/10 and occasional, but now it is 6/10 and frequent. Additionally, I now have completely new symptoms, such as numbness and incontinence, which you can see appear nowhere in the medical records prior to the accident.” It just means more work for you. If the MRI does not show a significant change in the 2 previously injured discs, you should make the argument that this accident has rendered a previously asymptomatic injury symptomatic, which is pretty common with aggravation of disc injuries. Hopefully your prior medical records will be sufficiently clear as to the extent and frequency of your symptoms that, coupled with the chiropractor explicitly describing the aggravation, should be enough to sell the insurer that this is a serious and legitimate claim for aggravation.

      I’m glad to hear that you have UM insurance. I can’t imagine the frustration of dealing with how to settle such a case, especially with a UM claim, in a state where the insurer does not have to disclose policy limits pre-suit. How are you supposed to show that UM is even triggered when you can’t get the at fault driver’s liability limits? I hope for your sake that the insurer gets permission to disclose (and tender, if they are the minimum) the limits after it receives your demand. Otherwise, you may have to hire a lawyer just to file suit and find out what the policy limits are. Of course, if the liability insurer is less than cooperative and tries to claim that your injuries are all pre-existing, or pre-existing enough that your claim isn’t worth the minimum liability limits, you should hire a lawyer anyway.

  5. Demandy Lady says:

    Again I just can’t thank you enough for your forthcoming response that are in layman’s terms. It can be so frustrating doing online research when everything you’re reading is in lawyerese. Ha! I will definitely contact the adjuster re: policy limits, using the strategy you suggested. It has been very frustrating, to say the least, not knowing the policy limits, especially when trying to settle the claim. Many times it gets so overwhelming, (especially when you’re in pain) I just want to throw in the towel but since my main concern is to get my accident medical/surgery bills/paid and have the surgery in hopes of a better quality of life, (and be reasonably compensated for this unneeded pain & stress of course) I keep at it.

    Thanks for clearing up the MMI issue! Since, as you stated I have not had the surgery yet, I have no idea how much to list for economic damages with regard to my anticipated future medical costs. Does this amount even matter if I am demanding “policy limits”? (which I fear to be the state minimum of $25K) Should I go ahead & list an amount and if so, can you give me a ballpark figure to use?

    I plan on initially submitting records pertinent to this accident only. I do have my prior medical records however and while there is mention of headaches (not alot discussing the frequency & severity though unfortunately) and cervical disc issues, there is no mention whatsoever about the burning pain down the arm, numbness in 2 of my fingers, ringing in my right ear that’s been present since the day after the accident, or incontinence, because they were never present before the accident. Bottom line – my pain was intermittent before & controlled with medication and now it’s daily, much more severe & not controlled with medication. The incontinence & weakness/pain/numbness in the hand (which has gotten so bad that I have trouble even brushing my teeth & styling my own hair alot of times) is completely new to me and is more of a psychological issue than anything else.

    With regard to my medical records, can you tell me what I can expect if the defendant’s insurance company requests my med records prior to the accident? How far can they request to go back? Do I have to sign an authorization saying they have access to my complete medical history? Can I provide them with the prior records I have (that go back to about 2009) or do I have to allow the insurance company to request them directly from ALL my providers? I had (politely) declined signing their initial request for this access, saying I would provide them with everything pertinent to the accident, to avoid them having full access to my entire personal history – although I do want to be clear that I have nothing to hide & plan to continue to be forthcoming throughout all this.

    I’m finishing up my demand letter, based on your outline on your site (invaluable – thank you!). I’m so afraid of saying more than I should though when it comes to my previous neck/headache issues and damage my claim. The records I’ve reviewed from before the accident, don’t really gauge the pain on a scale or refer much to the severity, it just says “migraine”. Should I just be extremely brief in my letter and say “although I have had previous neck & headache issues in the past, they have become extremely aggravated(?) in frequency and intensity since this accident.” and then list each of the new symptoms since the accident? *any wording you could provide that I could use would be so appreciated. I also want to say in my demand letter (since none of my Dr’s will) that I’d had an MRI just 2 months before the accident and they did NOT indicate bulging of 2 of my discs that now show up on the MRI taken after the accident & this would most likely show a direct correlation to the accident, since so little time had passed between the 2 MRI’s. Is it wise to even bring up?

    I was diagnosed with Fibromyalgia in 2006 & while this isn’t really mentioned on the records I’m submitting from the accident, they are on my previous records. I’m not even mentioning this in my demand letter because I don’t feel it has anything to do with what’s going on right now. Would you agree? When & if they see this on my past records, do you think this will be a help or hindrance to my claim? Would this be considered more of an aggravation issue? Should i mention the Fibro in my demand letter, or just leave it alone for the time being?

    If I’m asking for policy limits, do I even need to list a $ amount for non-economic damages? I have a paragraph put together for this section, but have absolutely NO idea what to demand as far as $. I certainly don’t want to seem ridiculous or unreasonable. Or do I just say in the closing of the letter “due to the amount of my economic and non-economic damages listed above, I am
    requesting(?) policy limits?”

    I know you are very busy and I can’t thank you enough for your time & extremely helpful responses. Can you tell me how I provide you with a tip? I don’t see where to do this on your site.

    • fl_litig8r says:

      I wouldn’t just demand “policy limits” when I don’t know them. I would try to come up with a real number for the full value of the case, inflated of course, for demand purposes, and then simply state that if this exceeds their policy limits that it would be in both of your best interests if they disclosed that fact. Figuring out your future medical costs without guidance from your doctor will be a pain. Certain big ticket items can be researched on this site (which I kind of hid in this seemingly unrelated article), but the smaller recurring costs, such as medications or follow-up visits will be harder to figure out if your doctor won’t help.

      Not providing your old medical records will likely just get a response from them asking for the records or a release for them to get them. While I know you don’t want to share the prior records showing headaches, I seriously doubt that they will engage in any negotiations without seeing them. It’s up to you, and really the worst that will happen is that it will hold up your negotiations for the time it takes to get their letter demanding the records, your providing them, and them reviewing them (that’s a lot of “thems” — hope that was clear). If you want to appear more honest and trustworthy, which may or may not matter, depending on the adjuster, you should send the prior records with the initial demand.

      With respect to how far back the insurer will want to go with your medical records, I wouldn’t be surprised by 10 years — longer if there is a pre-existing condition which predates that. As to providing a release, as a lawyer I never do this. I provide the records myself. Unfortunately, an insurer may not trust a lay person to send all the records the way it would a lawyer (yes, I know it sounds odd, but they do trust lawyers to do this), and it may insist on a release. It’s up to you if you want to give them one at that point, but then you’re really faced with either giving them a release or hiring a lawyer. You shouldn’t try to sue them on your own. If you do sign a release, make sure that you sign one for each provider (don’t give them a blanket release they can use on anyone without your knowledge), and for providers you are no longer seeing, makes sure that it expires after a single use. This may take some modifying of their standard release on your part, which is a pain — but worth it.

      As far as discussing your prior injuries and the exacerbation by the accident, it would probably be better to be a little more specific in your letter. Even if your medical records don’t discuss pain levels, ballpark them based on your current levels. If you’re at a 5/10 now and this is worse than you remember from before, say that it used to be 3/10 pain (or whatever). Describe the frequency of your migraines in more detail, e.g., “Prior to the accident I used to experience migraines only 2-3 times a month. Since the accident, I now experience them 2-3 times a week.” Just vaguely saying that you’re worse now doesn’t help much, especially if your medical records don’t flesh out how your pre-existing conditions have worsened.

      For your MRI discussion, absolutely claim that the one taken 2 months before the accident clearly demonstrates that the two new bulging discs shown on the more recent MRI were caused by the accident. Don’t be timid and assert correlation when you can assert causation. Be an advocate for yourself — not some neutral third party evaluator. Trust me, practically no one has anything as good as an MRI taken 2 months before an accident to prove that certain injuries are new. Your before and after MRIs are as close to proof positive of causation as you can get in a lawsuit.

      I’d avoid any discussion of the fibromyalgia in the demand letter. The simple truth is that the majority of insurance adjusters don’t believe that it’s a real medical condition — at least a physical one. An adjuster would likely peg you as a flake and/or malingerer if you mention the fibromyalgia. While they will probably see it in the medical records anyway, there’s no need for you to shine a spotlight on it.

      I’d try to get some real numbers together for the economic damages part of the demand. Use the site I linked to at the beginning of this comment as much as you can to determine the larger expenses, and then just use Google as best you can to fill in the details. If your doctor won’t help you, this is what you’ll need to settle for. Remember, you’re not swearing that everything in your demand is 100% accurate. Err on the side of stuff being more expensive and let them argue that you’re wrong and provide you with their own figures. Sound like you know what you’re talking about, even if it turns out later that you were off by a lot. Remind yourself to be an advocate — no one is going to give you more than you ask for if you err on the low side.

  6. Demandy Lady says:

    Thanks again for the great advice. I am working on getting my previous medical records and plan to send them with my current ones and other initial demand paperwork. I had hoped to send everything to the adjuster this week, that was just related to the accident & just try to get this part over with (very stressful), but I have 18 months left before the statute of limitations runs out and know I need to just take my time.

    My question would be though, if I send them my past records along with my current ones, etc., are they going to question the fact that I’m providing them with my complete records (which I am – why mess with it? I have nothing to hide) & then go & ask me to sign a release so that THEY can re-request them all? It would just seem like such a waste for me to go to all this trouble retrieving past records and then them redoing everything from lack of trust & dragging all this out even longer. I realize it’s probably impossible to answer this question, but just wanted to see if you’d encountered this kind of thing before. *Do adjusters have some sort of database they can refer to, that lists all the Dr’s someone has seen, or do they basically have to just go by the list of Dr’s names I provide to them? I’m almost certain I’ve requested my records from all my providers in the past 10 or so years, but that’s a long time & I may have missed something. Do I have to include records from podiatrists or other random treatments that have nothing to do with any of this?

    My main question is if you think I should hire a lawyer right now, that would be willing to send all the paperwork/records (since adjuster trust atorneys more 🙂 that I’ve put together, along with my demand letter, to the adjuster and just handle negotiations and possibly be able to find out the policy limits, as well? I know many of them offer a free consultation, but I wanted to get your opinion 1st. What about hiring an attorney on an hourly basis, or for a (considerably) reduced fee, since I’ve basically done all the leg work? This is in the hopes that it does not go to trial and can be settled beforehand, of course.

    The 3rd party claims adjuster has still not responded to my email from 3 days ago, asking what the policy limits were, that I carefully worded based on your previous reccomendation. She has always responded quickly in past communications, so it seems to me she is avoiding me. Should I call her and ask? If not, where do I go from here with that issue?

    The neurosurgeon did provide me with an estimate of his charges for the surgery and I contacted the hospital I’m considering and was given a ball-park figure on the other associated surgery costs and have added that to my damages, so I’m getting a little closer on the total damages portion of my claim.

    Thanks!

    • fl_litig8r says:

      Yes, they may still ask for releases even if you send them all of your past medical records. Insurers tend not to trust lay people to give them everything, and because you pose no immediate threat to sue (not having a lawyer), they can afford to make these demands with little risk. The benefit of providing the records yourself is that they’ll still review the ones you send even if they order their own copies. So, if the records are complete, it won’t take any additional time after they get their own copies to review how the records affect your claim.

      While insurers have databases of prior accident claims, they don’t have any databases that would cover all of your medical care. That would be illegal and a violation of HIPAA laws. Usually, they can track down providers you may have missed through (1) your medical records, which will often refer to other doctors, such as referrals, (2) your health insurance records (which they’d also need a release to request) and (3) your pharmacy records (which will catch any doctors who wrote prescriptions). There is actual legwork involved — they don’t just push a button and see everyone who ever treated you pop up on a screen. As to doctors who are clearly unrelated to the accident, they may want to see those records as well. I’ve had insurers want to see the gynecologist records of clients with back injuries. Mostly, this is just to be extremely thorough and possibly pick up on doctors you may have been referred to by these doctors. Also, some times people complain of unrelated pains to their gynecologists or podiatrists.

      As to hiring an attorney, don’t expect many, if any, to be interested in handling the claim on anything other than a percentage basis. Most plaintiffs’ personal injury attorneys aren’t interested in hourly rates (if they were, they’d probably be doing defense work). I doubt that many would even consider a reduced fee due to the legwork you’ve already done. They know that the value they bring is not only the negotiating skills, but the threat of filing suit, which someone without a lawyer just doesn’t have. I can’t make the call for you as to whether hiring an attorney now will justify the added expense. A lot of it depends on the individual claimant’s skills at negotiating and the willingness of the insurer to take the claim seriously without an attorney involved. It’s a relatively small risk to send out an initial demand on your own (assuming you ask for enough) and see how the insurer responds. If it’s clear that they’re not taking you seriously, you can always hire a lawyer before negotiating further. Of course, it would save you a lot of work up front to just turn everything over to a lawyer immediately, which most people prefer. Is the potential cost savings worth the headache to you? Don’t forget that you also have a potential UM claim to deal with.

      The adjuster may not have responded to your e-mail about policy limits yet because she is waiting for a response from her insured, giving her permission. She may have sent the request by mail to cover herself, so don’t read too much into not yet receiving a response. I’d give it 2 weeks, or just reference it as we discussed in your demand letter and wait the 30 days to see if they disclose the limits in response to your initial demand.

  7. Demandy Lady says:

    I can not thank you enough for your invaluable advice. It means so much to me that you would take the time to respond and that your responses are so thorough, not to mention honest, timely, straightforward & concise.

    I just found out today, from my UM claim’s adjuster, that she was just notified by the 3rd party insurance of their insured’s policy limits. ($25K – state minimum, just as I suspected.) This is a major piece to the puzzle that I needed though & I’m so relieved just to know what I’m dealing with. I had planned on emailing the adjuster and telling her I’d been advised of the limits, but wasn’t sure if I should just leave it alone for now (& see if she does indeed, eventually reply) or put it somewhere in my demand letter instead.

    I’ve decided that for the time being, I am going to complete my demand letter and just submit records related to the accident and see what happens from there. This should give me the additional time needed to receive and review my previous records that I’m in the process of requesting from all my providers and see for myself what’s contained in them. If the insurer does require access to previous records after reviewing my initial claim, I plan on telling them I have these available and can submit them and just see what they say. If not, at least I will already know what is contained in these records & can determine if I want to sign the insured’s release(s) (thanks for the advice on how to handle signing their forms, if it does come to that), or if I should just hire an attorney at that point.

    This is probably naive, but I’m just hoping that based on the policy limits I have to work with, determining fault/negligence not being an issue, the fact that my actual medical bills from the accident are about $15K and my documentation showing I require surgery (about $65K total for surgery expenses alone) and are all included in my claim’s value I’m submitting, that the insured will just release the policy limits, since my claim so exceeds the actual limits.

    My total claim value, including my medical, surgery estimates and my non-economic damages is about $100K. *Would now knowing the policy limits I’m dealing with, change your prior recommendation of coming up with an exact $ amount of the total value of my claim, (mainly as far as putting a $ amount on my non-economic damages), or should I just list all my economic damages and use the verbiage that I’m demanding “policy limits” since my claim far exceeds this amount, due to my now requiring surgery to mainly alleviate a new symptom (incont) caused by the accident?

    I’m wondering if the negligence part of the claim makes any difference in the insurer’s willingness to pay (policy limits, in this case) on the claim. The police report alone makes it crystal clear that their insured is 100% at fault. It even shows admission of fault & states that the driver said he just “looked down briefly” & realized traffic was stopped. (this is untrue, as I mentioned to you before, as he was at least 200-300 ft behind me after I had stopped along with other traffic & looked in my rear view mirror (for at least 30 seconds) and i have plainly stated this in my demand letter.) The police report even says there was over “50 feet of skid marks” where he tried to stop & still hit me going about 50mph.

    My point being, does this kind of evidence of gross negligence of their insured, make the insurer more inclined to pay the limits (in this case) on the claim, to avoid litigation, etc.? This, along with my records since the accident, all of which mention the accident, worsening of headaches, the new symptoms since the accident (esp the incontinence), my chiropractor’s extremely detailed report that mentions the worsening/aggravation of the discs that require surgery, plus the new ones affected since the accident, as evidenced in my 11/2012 and 2/2013 {post accident} MRI’s), etc., not to mention the wording I’m using in my demand letter (thanks to you) with regard to aggravation of symptoms and listing all my new symptoms (which I know, without a doubt, would not be contained in my previous records since I’ve never had most of these issues I’m dealing with now). In other words, just hoping that based on the accident records & the wording they contain, my concise wording and structure of my demand letter, their insured’s obvious negligence and the relatively low limits that are even available, will alleviate the need to drag this out by them requesting my previous medical records, or at the very least, avoid a lengthy negotiation process.

    Thanks again for your help. I know there are never any guarantees when it comes to settling a claim, but your advice & expertise have been so very helpful and also help to alleviate unwanted stress, which only exacerbates the pain I’m dealing with now.

    **Please advise how to leave a tip for your services – I feel like I’m taking advantage at this point & your help has been invaluable to me.

    • fl_litig8r says:

      I’d still prefer that you specify the amount of your damages even though you’re now pretty sure that the policy limits are $25,000. What you could do is demand the full amount, but state that because they have not disclosed the policy limits, you would accept a policy limits offer if it was accompanied by proof of the inadequate policy limits. This should preserve any bad faith claim that may arise, by showing that the insurer clearly had the option to settle within policy limits.

      The fact that the other driver was clearly 100% at fault will absolutely make a difference in how much the defendant offers. If the defendant has a potential liability defense, it may not offer anything at all, or a severely reduced amount. While that doesn’t increase the amount of damages you suffered, it removes one avenue for the defendant to drastically reduce its estimation of the value of your claim. It’s always better for the plaintiff if the defendant can’t contest liability.

      As far as “gross negligence” is concerned, that likely wouldn’t make any difference in this case. The only kind of conduct that might cause it concern would be something that may expose its insured to punitive damages, such as drunk driving. Usually, a case of just not paying attention will not subject an at-fault driver to punitive damages. While insurers don’t pay punitive damages (you can’t insure a person against their own conduct which would result in punitive damages as a matter of public policy), there are potential bad faith issues involved if an insurer refuses to tender policy limits (especially when the limits are as low as in this case) and its insured goes on to get hit with a punitive damages award.

      You’re right that it’s tough to predict how any insurer will react to any given claim. I’ve certainly had my share of surprises, both for good and ill. It would be nice if this insurer just tenders its limits, but I wouldn’t bet either way on that.

      No tipping required. A little less length on future comments would be appreciated. 😉 I’ve got enough back story at this point for you to just jump to the questions.

  8. Demandy Lady says:

    LOL! I get it & totally agree! I read through my last email & knew it was repetitive & WAY too long, just wasn’t sure which part to take out. Thanks again for all this – it means so much to me. You have an amazing site and are providing such a selfless service to others. I’m going to try to send everything to the insurer next week & just go from there. Doesn’t help worrying about it and letting it affect my health further. I have more than enough sage advice & info to put together an informed, legitimate claim & I owe that all to you. Btw – I notice my 1st post has my 1st name (didn’t know this would show online – ha!) You never know who might see this. Are you the webmaster or is it possible to have my name removed from that post? I don’t even like the “L” on there, really. I’m happy for this info to be helpful to others down the road, but wouldn’t be at all upset if it were all completely removed, since I’ve printed our correspondence for my reference. Just say’n.. 🙂

    • fl_litig8r says:

      I’ll change the names on your posts to something more generic. I don’t delete comments because I think they help people as much as, if not more than, the articles themselves.

  9. Demandy Lady says:

    Love the name & will take it in the context in which I’m sure it was intended. 🙂 Thanks for doing that. I was just looking over the police report, gathering info to finalize everything & much to my shock, noticed there was another vehicle involved in the accident! Apparently after this person rear-ended me, they jerked over to the side & hit a City vehicle in the next lane who had also been sitting in traffic! Report says there was mild damage to their vehicle but they did not suffer any injuries. This other driver’s statement on the police report says he witnessed the (at fault driver) hit me, then swerve over and hit him. What do I make of this, if anything? Would I still be dealing with the 1st # ($25K) of the insured’s policy limits, or the 2nd #, since there was 2 other vehicles involved? Can’t believe I missed this before.

    • fl_litig8r says:

      In a split limit policy, e.g., $25,000/$50,000, the second number acts as cap to the total damages from the accident from all parties combined. Each individual claimant can still only recover a maximum of the first number. So, in an accident where 2 people are hurt and the at-fault driver has $25k/$50k limits, the second number is largely irrelevant because each individual can recover up to $25,000 — so the total amount could never exceed $50,000 anyway. However, if 3 people are hurt, then it could be problematic, as the total payout to all three cannot exceed $50,000. If everyone equally suffers $25,000 worth of damages, the insurer would likely try to settle on a pro rata basis, giving each claimant 1/3 of the $50,000. If two of the three people’s injuries combined don’t exceed $25,000, then the one claimant gets $25,000 and the other two get paid their full damages.

      When you have split limits with multiple vehicles involved, but only one claimant is injured, that person is still only entitled to recover the individual limit of $25,000. So, if you’re worried that you might not have the full $25,000 available to you, that would depend on the number of other injured claimants and the amount of their damages. If you were hoping that you could get the $50,000 because more vehicles were involved, then I’m sorry to say that that isn’t how it works.

      I was just having a bit of a laugh with the name, due to its appropriateness for the subject matter and to poke fun at the length of your earlier comments.

  10. Demandy Lady says:

    Ha! I know I can be a little wordy, always have been. Thanks for your patience & putting up with the annoyance. 🙂

    Great to have the limits issue cleared up. I’m just going to go by what the police report says, that the other party had no (bodily) injuries, and assume (hope) that that entire 25 is available to me. I’ll find out soon enough either way. The 3rd # refers to property damage, according to my research, and is handled totally separate from the bodily injury amounts. The police report also indicates there was damage to the other party’s vehicle’s side back end. The insurer was very quick in handling my property damage claim, so I’ll just stay positive and hope that they will handle this part of the claim in the same way and want to be done with it, like I am. My insurance did confirm the 25 amount as being correct and also told me that the 3rd party insurer is a “small operation” and a high risk provider, whether that makes any difference or not..

    My claim (economic & non) & including surgery, exceeds $125K. Wondering if I should still mention in my demand letter, the wording you advised about listing my total claim value, but that I’m willing to accept policy limits, if proof of inadequate limits was provided, or if I should just submit my claim using the actual claim value, in the hopes they’ll want to settle by offering the limits.

    Thanks again for your help!

    • fl_litig8r says:

      The reason you would want to say that you’d settle for policy limits is to preserve a potential bad faith claim. If that’s not a concern to you, then you don’t have to say it — but it does add pressure to the insurer if you do.

      I wouldn’t get my hopes up about how your BI claim will be handled based on how the property damage claim went. Property damages claims are often the least contentious, mainly because they involve relatively smaller dollar amounts. The fact that this is a high risk insurer might work in your favor, as they kind of expect to have to pay out claims more often due to the people they insure.

  11. Demandy says:

    Thanks again! Makes total sense to include that sentence, then.

  12. melbbblack says:

    Hi there! Thank you so much for this site. Over 2 years ago my daughter at 15 years old was involved in a horrible car accident involving 1 car with 7 teenagers. The driver was being a boy and thought he was funny and showing off by going 60 -70 mph in a 35mph zone approaching a curve that stated to reduce the speed to 15mph around the curve. Due to the excessive speed he ran off the road and could not decrease his speed effectively and hit a tree stump that sent the car approx. 50 feet into the air, landing on it’s roof collapsing the front windshield and forcing the roof towards the back. The driver and the right rear passenger both suffered fatal injuries. The front passenger was looked at and released and has been settled with, The left rear passengers (one was sitting on the others lap) were both taking to the hospital one was released 3 days later who had a ruptured spleen and he was settled with. The girl on his lap had liver issues and was released after 12 days but the hospital did not notice her shoulder had been dislocated until on day 10 when they got her in the shower and it is the shoulder that is giving her problems, so she has not settled. My daughter and the girl on her lap were sitting in the middle back seat. The girl on my daughters lap was released after a day, with a cut on her head in her hair and has settled. My daughter unfortunately was the only one the car to come to and the first thing she saw was the boy next to her and she know he had fatal injuries and her first instinct was to get out and try to get help so she had to crawl out over him to get out of the car. Once out of the car she tried to get help not realizing that she had a compound fracture of her tibia and had severed everything from the outside of her left foot to her big toe at the ankle. To try and make a very long story not too long, we were in the hospital 14 days the first time when she had to have a plate put in her leg and an external fixator, she got and infection which is common with compound fractures so they had to put her in traction and give her heavy antibiotics. when we were released we had to have a hospital bed brought to our house because all of our bedrooms arte on the second floor. 15 days after being released we had to be readmitted for surgery to debride her wound and get a wound vac (we were in the hospital for a week). The home care with the wound vac was Monday, Wednesday, and Friday at the wound care clinic for almost 3 weeks. one week after getting the wound vac removed we had out patient surgery to get her external fixator out, and almost a month later she had out patient surgery to remove 2 screws from the plate on her tibia. Then after 4 months from the accident we were able to start physical therapy and went to a facility for 4 months and then we switched to a private physical therapist and are still going to this day. Before the accident my daughter was a happy fun loving, outgoing teenager and an amazing soccer player, but she will never play soccer again, we have horses that she has never ridden since and she no longer has the freedom of thinking “oh that can’t happen to me”. The Dr. is amazed at how well she is doing for the injuries that she had. She was 15 when this happened wanting to get her permit to drive but that was postponed for 2 years, but was able to get it and get her drivers license 3 months before her 18th birthday. Arthritis is already setting in and the Dr. says that one day she will have to have it fused. Next June she will graduate high school with her Certified Nursing Assistant license and hopefully go to college to either become RN or go on to become a Physicians Assistant. But all of these jobs require standing and walking a lot. The driver of the car had 250,000 with an umbrella policy 1,000,000.00. My personal insurance agent (no one having to do anything with his insurance agency) told me not to hire a lawyer because my daughter would be considered a maximum pay. His insurance company has told me that everyone has been settled with except for the one passenger that had a dislocated shoulder that wasn’t found for 10 days while in the hospital and my daughter. I know that passenger has a lawyer. So I guess my questions are: 1 If there is 1,000,000.00 left after they have settled with everyone else would my daughters settlement be hindered by the passenger with the shoulder. The adjuster told me my daughter settlement has nothing to do with what they settle with the other girl. 2 How do you put a price on never being able to play soccer….. a game she had played since she was 5…… a game that she quite possibly could have gotten a scholarship to college for? How do you put a price on having to have your ankle fused? Never being able to wear heels and also having a horrible scar. I am trying to write the demand letter but her pt says she would need the entire 1,000,000 to compensate for what she has gone through and has yet still to go through….. but is that fair to ask for since the other passenger hasn’t settled and that might be all that is left? My insurance agent also told me once we settle with their insurance that I still have mine to fall back on if theirs wasn’t enough. I am sorry for rambling but I have watched her struggle and our life has become, our life before the accident and our life since the accident. I want the most for her, and am trying to have faith but at the same time be smart. 1/3 of 1,000,000 is an awful lot of money, money that if invested right at this point in her life could help her later. Thank you for time and any help you can give me to help her!

    • fl_litig8r says:

      1. I’m unclear about the $250,000.00 limit on the auto policy. Was it a combined single limit, or a split limit? If it was a split limit, was it $250,000.00 per person or $250,000.00 per accident, and what was the other limit? Whether the other passengers settlements eat into the money available to your daughter will depend on that. If it was a combined single limit, then every dollar paid to another passenger reduces the amount available to your daughter. If it was a split limit, then the amount to which each settlement eats away at your daughter’s share would be limited by the per person limit — of course, because there are multiple injured people, the per accident limit may come into play. For example, if it was a $250,000.00 per accident limit with a $100,000.00 per person limit, two settlements for $100,000.00 each would leave only $50,000.00 available to a third injured party. This, of course, is only applicable to the auto insurance, and not the umbrella policy.

      With respect to the umbrella policy, its limit is usually a “per occurrence” limit, meaning that there is no limit per person, but that every dollar paid to one party reduces the amount available to other injured parties on a dollar-for-dollar basis. The umbrella will have a deductible equal to the amount of the underlying coverage, so if the underlying auto policy has a combined single limit of $250,000.00, that will be the deductible for the $1 million umbrella (so that the total coverage equals $1 million, not $1.25 million). Without knowing how much each other passenger settled for, you can’t know how much is left to pay your daughter — the adjuster is wrong to suggest that the other settlements won’t affect the amount available to your daughter.

      I’m a bit concerned because you mentioned a fatality other than the driver (the back seat passenger), but you didn’t say whether that person’s estate settled or whether he was excluded from coverage (for example, if he was a resident relative of the driver). If that claim settled, a big chunk of the available coverage may be gone.

      2. Non-economic damages are always somewhat speculative, so putting a price on the ability to play soccer from a “loss of enjoyment of life” standpoint is pretty subjective. The value of this to your daughter versus some other person who only occasionally played makes assigning a value to such claims highly personal. Basically, this is a figure you leave to the end of your calculations, and you just fudge a value, in addition to your other noneconomic damages, such as pain and suffering, to get to the settlement figure you want to demand. In short, take the total amount you want to demand, subtract your hard economic damages, and spread the remainder among the noneconomic damages you are claiming. It’s not an exact science.

      With respect to her scholarship potential, while such damages may be too speculative to prove should you actually have to go to litigation (unless she was a star athlete who was clearly on her way to a scholarship), there’s no real harm in making this a part of your demand. Figuring out how much such a scholarship would be would obviously require research and depend on the school in question.

      I see no harm in making a policy limit demand, even when there are other injured parties who still haven’t settled. It’s the insurer’s problem to try to make the coverage meet the damages, so let them come back and argue to you that your daughter’s share should be less, due to other injured parties needing compensation. Don’t make their arguments for them. Keep in mind that you won’t be able to go after your own UIM insurance if the insurer doesn’t exhaust its coverage among all the claims. This poses an additional problem, in that you’d need to prove that the driver’s coverage was exhausted without knowing how much each other party settled for. This may be something to which the insurer will attest (that coverage was exhausted by all the settlements) to secure the settlement of your daughter’s claim.

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