Want to Settle Your Own Accident Claim? Part 3 – The Demand

Settle Your Own Accident Case Part 3Having decided whether you should try to settle your own accident case (Part I) and gone through the preparations and document gathering needed to prepare your demand (Part 2), you should now be ready to draft your settlement demand letter. This will take some time, and you will need to review and refer to many documents, particularly your medical records, so don’t expect to knock this out in just a few minutes.

Writing a Demand Letter — Your First Settlement Offer

In theory, you could just call the defendant’s insurance company and tell them how much money you demand to settle your claim. This is not how lawyers do it, and for good reason. By presenting your first offer in the form of a demand letter, you get to present not only your initial settlement offer, but also the grounds for making such an offer in a well-thought-out, organized fashion. It lets the insurer know that you’ve actually put some thought into your offer and that you’re more sophisticated than the average “lawyerless” claimant. In other words, you are not someone to be messed with.

My suggestion for how to organize and present your demand letter is just that — a suggestion. You should consult other sources or buy a book and combine my advice with that of others to find an approach that works best for you. Here is how I suggest your settlement demand letter be structured:

The Claims Information Section: Between the insurer’s address and “Dear Sir or Madam”, you should have a block of information that quickly lets the adjuster know the following:

  • Name of Claimant: <your full name>
  • Name of Insured: <the name of the tortfeasor — either a person or business>
  • Policy Number: <the policy number of the tortfeasor if you have it>
  • Claim Number: <if the insurer gave you a claim number, enter it here>
  • Date of Loss: <the date of the accident>

The Introduction: In the first paragraph, you want to state that this is a time-limited demand to settle the above-referenced claim and that the offer to settle will lapse and be revoked unless you receive a settlement check in the amount demanded (don’t specify an amount here — wait until the end of the letter) within 30 days. Thirty days is standard for such a demand. It has the additional benefit in cases in which you are requesting policy limits of preserving your right to bring a bad faith lawsuit should the policy limits not be paid.

Give a very brief description of the accident, such as “the automobile accident which occurred on “X” date, or the “slip & fall accident which occurred in “X” store. You then state that “The particulars of the claim are as follows:”, and you begin your section-by-section description of the claim. For each of the following sections, I suggest you use the actual bold headings I provide in your letter so the adjuster knows how the claim is organized.

The Claimant: Here, you state your full name, age and gender (e.g., John Doe is a 35-year-old white man) and provide any useful information about yourself from prior to the accident, such as your occupation and the status of your health (e.g., . . . who worked as a truck driver for the past 10 years and was in excellent health). If you had no prior medical conditions, say so. If you did, here’s your chance to try to minimize their impact. You should disclose pre-existing conditions (the insurer will find out eventually), but you should distinguish them from the injuries you suffered in the accident (either you had fully recovered and this is a re-injury, or the accident exacerbated them) or state that they are unrelated to the injuries from the accident (e.g., you had a prior knee surgery, but you are not claiming a knee injury from the accident).

If you are married and/or have children, include that here. Feel free to include anything that humanizes you so that the adjuster may see you as more than a number (charity work, community activities, etc.) or anything that may be relevant to the claim that you are making (hobbies or sports that you like that you will later say have been affected by the accident).

Description of the Accident: This is fairly self-explanatory, but I suggest that you only give the level of detail needed to convey the essential facts. If you were in a car accident, for example, you wouldn’t need to say where you had been or where you were going at the time of the accident. You don’t need to describe your emotions or what a horrible person their insured is. Think more along the lines of what appears in an accident report — the where, the when and the how.

Liability: Because this follows the accident description, this should just be a very short statement of why their insured is at fault for the accident. For example, “It is clear from the above description of the accident that your insured is 100% at fault and that there was nothing I could do to avoid the accident”.

Injuries Suffered and Medical Treatment Received: This section is also fairly self-explanatory. Be thorough as to what parts of your body were injured. Include everything, not just the worst injury. Use your medical records (which you should have gotten before you started writing) to help you give a summary of the treatment and tests you received, as well as their level of success (keep it to a summary — you’ll be sending the medical records with your demand). Identify any prescription medications you have taken and if you will need to take them in the future. If this is an automobile accident case in a “no-fault” state, be sure to state which of your injuries, if any, are permanent.

When you’ve finished describing all of your past care, describe the types of future care you will need (according to your doctor). Include any drugs you will have to take, any physical therapy or follow-up doctor appointments you will need. If you will need to do daily exercises at home from now on to maintain your current level of functioning, include that as well.

Economic Damages: In this section you will describe both your past and future “economic damages,” which will mainly be your medical costs and wage loss. Use the information from your medical billing documentation to add up your health care costs. Be sure to include your drug costs (your health insurance info should help). Use the full amount the health insurer had to pay, not just your co-pay (don’t forget that you’ll have to pay back your health insurer). Remember to include the cost of all of your anticipated future medical care, including drugs you will need to take. If you’re not sure how much certain treatments will cost, this site may help.

For your wage loss claim, include any “sick time” that you needed to use due to your injuries. If you lost your job, or had to take a less physically demanding job, include the total loss or difference in your pay going forward into the future as part of your future wage loss claim. Guesstimate if you don’t have exact numbers — just be reasonable in your estimation.

Finish this section by totaling your past and future economic damages (for easy reference). Say that your “future” economic damages figures are conservative and will likely be much higher if you have to litigate.

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Non-Economic Damages: Your non-economic damages are your pain and suffering (physical) and emotional distress (mental) damages. Describe both the pain from the accident and from your medical treatment — it’s all recoverable. Describe your current level of pain and how you will have to live with that for the rest of your life. If your injuries put you at risk for future arthritis (many injuries do — ask your doctor) state this and describe how this will cause your pain to increase in the future.

Describe any physical limitations that you have now, such as lifting or range of motion restrictions. Identify some of the things that you used to love to do but can’t do now because of these injuries (playing with children, golf, bowling, etc.). If you’ve gotten depressed, especially if you’ve treated with a mental health care provider, include this information (don’t forget to include his bills in the economic damages section, either).

Finish this section with a broad figure that encompasses both your past and future non-economic damages. Make it a large number because this is where you will be padding your demand for negotiation purposes. Don’t be conservative at all with your number (but say that you are).

Demand for Settlement: This section is your summary, wherein you list the different dollar amounts for the economic and non-economic damages you’ve previously identified and total them into the final demand for settlement. If the number seems too low to you, go back and tweak some of your other numbers (but not the past medical or wage loss, as those are fixed), such as your pain and suffering or future wage loss.

Come up with a number that is far higher than you want to receive as your final settlement. Don’t be naive and think that you’ll impress the adjuster with your reasonableness. Adjusters know that initial offers are exaggerated and expect you to negotiate down from them. If you start off reasonable, you’ll be negotiating down from “reasonable”.

When you’ve finished your demand letter, have someone else proofread it for you (not medon’t even ask) and make sure it reads well. When you’re satisfied with the letter, send it, along with copies of all of your supporting documentation, to the insurer.

Special Notes for Car Accident Cases

Property Damage: If you were in your own car at the time of the accident, you probably also have a claim for the damage to your car. This should be handled by a different adjuster at the insurance company than the one handling your bodily injury claim, a “property damage” adjuster. As this article is already quite long (and getting even longer), I’m not going to address how to settle your property damage claim. You can buy a very cheap guide which shows you how to handle that aspect of your case by clicking this link.

You can handle your property damage claim immediately after your accident without waiting for your bodily injury claim to ripen. Just make sure that you don’t give any recorded statements to the adjuster (I’m assuming the accident report will state that the other driver was at fault). Inspections of your car are fine, and expected. Be sure that any release you sign as part of your property damage settlement does not release the insurer from your bodily injury claim.

Uninsured/Underinsured Motorist Issues: If you are sending a demand to an underinsured driver’s insurer (you’ll be demanding policy limits), to be safe you should make the settlement contingent upon the agreement of your own UM insurer. Just include a line in the final section of the letter stating that. In some states, such as Florida, if you don’t get the approval of the UM insurer before settling with the tortfeasor, you waive your right to collect UM insurance.

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You can send practically the same demand letter to your UM insurer that you sent to the tortfeasor’s bodily injury insurer. Just add a section stating the policy limits of the underinsured driver and include a copy of the paperwork which supports those policy limits. When you make a settlement demand to your UM insurer, remember to deduct the policy limit amount of the BI insurer from the total settlement value. So, if your settlement valuation comes to $60,000.00 and the BI insurer has $25,000.00, you would demand $35,000.00 from the UM insurer (or its policy limits, if they are lower).

What Happens After the Settlement Demand Goes Out?

Mark your calendar to note the day your demand expires. Hopefully, you’ll hear from the insurer before then, either by mail or by phone, with either an acceptance of your offer or a counter-offer. If you do not hear from the insurer by the deadline, and think that you may have grounds for a bad faith case, you should call a personal injury lawyer and bring your demand package in for him to review immediately. If you don’t think you have a bad faith case, it’s up to you whether you want to contact the insurer to check on the status of the demand or just hire a lawyer.

Don’t try to trade numbers back and forth with the adjuster during a single phone call to settle your claim. Take some time to consider his counter-offer. Make notes about anything he identifies as weaknesses in your case, or reasons for not offering more money. Look into his claims and form counter-arguments before making a counter-offer of your own. Take your time and don’t try to rush things. Remember that smaller moves may make the process take longer, but they are safer.

Settlement tip

Negotiating Tip: Often, parties trying to settle a claim use their offers to send a message to the other side about where they ultimately want the settlement to go. Pay attention to number in the middle of the two offers (e.g., if you’re at $50,000.00 and he’s at $10,000.00, $30,000.00 is the middle — just add the last two offers and divide that by 2). If the adjuster’s offers are increasing at a lower rate than your offers are decreasing, it means he’s trying to pull the middle number down.

Usually, parties to settlement negotiations want to get to the point where they can “split the baby” and reach a settlement. Keep this in mind when making new offers. If the adjuster isn’t moving enough, make your own moves smaller to send the message that you see the “ultimate settlement figure” as being higher than him. Note that this “middle seeking behavior” doesn’t really happen until after the first one or two offers, after your opening number has come down into a more reasonable range. So, don’t be too reluctant to make a large move in the beginning — it may be necessary to start talking real numbers. Use some of the padding you’ve built in to your offer to make that move.

When to Bail Out and Hire a Lawyer

If, after trading a few offers with the adjuster it appears that you two are on different planets when it comes to valuing your case, you may want to just have a lawyer take over before your offers get too low. You don’t want a potential lawyer to be boxed in by your lowest possible settlement offer, as it will be very difficult for him to ever negotiate higher than that (and he’ll have to if you want him to offset his fee in the process). Don’t jump just because the adjuster’s first offer is low — this is a natural response because your first offer will always be too high. You’re just going to have to use your instincts to tell you if it looks like the settlement isn’t going to reach a number you can live with, so you know whether you should press on or hire a lawyer. That’s just one of the burdens of trying to settle on your own. Good luck!

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131 Responses to Want to Settle Your Own Accident Claim? Part 3 – The Demand

  1. grant says:

    I have a case I hope. Nature’s Miracle which claims to be safe for pets cause my cat to get really sick. In short it cost 4300 due to all the tests they ran trying to find out the problem. It turns out isopropyl alcohol the main ingredient in the product made him very sick. Now they are trying to deny responsibility. DO I have something? Not sure where I should have posted this but you have been great answering about my personal injury case.

    • fl_litig8r says:

      Unless there’s a class action out there against Nature’s Miracle for this issue, you’re going to be hard-pressed to find any lawyer willing to take this case. Given its low value relative to the cost of hiring an expert to prove causation, it wouldn’t be worth pursuing for just a single case. Hunt around online to see if there’s a class action forming. If not, at least see if there are other people complaining about similar issues from this food who you may be able to contact. If you can get enough people together to justify the cost of the expert, you’ll have a better chance at finding a lawyer.

  2. Are you any relation to dennis beaver? He gives you big props. Do you monetize your site? I think you have said some good stuff here. Just hard to concentrate with all the adds.

    • fl_litig8r says:

      No relation to Dennis. I just collaborated with him on one of his articles after he contacted me through this site. Glad to hear that he speaks well of me. I think he’s a pretty cool guy, too. My site is monetized through those unfortunately distracting ads and my $10 tip.

  3. Jonathan says:

    I currently am amidst a settlement after a Car accident Injury caused by a couple visiting from the UK in a rental car. I did not establish a letter of demand prior to the accident and since we are now six months post accident I have received an offer from the insurer for a little over $8,000 ($5000 for medical, 3 for pain & suffering) in addition to the offer for the automobile. I experienced a laceration to my head which required 5 staples and bled heavily. I don’t know where to start negotiations as they have made an offer & would like to keep from lawyering up at this point but don’t know where to start a counter-offer, and or have them retract their initial offer… where do I go from here? any guidance would be great

    • fl_litig8r says:

      Well, does the offer fairly compensate you for your medical costs? If you used your health insurer to pay these bills, you will have to pay it back from the settlement. So, you need to make sure that whatever you settle for will cover that repayment and still leave you with enough money to be satisfied. If they haven’t offered enough to cover your medical bills, start with that. Send them an offer thanking them for their offer, but conveying why you believe it is not adequate compensation for your injuries. If you have a scar from your head laceration, include pictures (if they will help — if you can’t see it now, don’t bother). If you missed work, tell them the amount of your lost wages (if you used sick time, you’re still entitled to be paid from them to cover your lost sick time).

      I really don’t know how much your case is worth, so I can’t tell you any numbers to throw back at them. You should ask for more than you want, to leave room to negotiate, but not be ridiculous with the amount.

      • Jonathan says:

        Thank you, what you said is helpful… I guess its hard to determine a value for your pain and suffering, because I’ve been taught my whole life to get up and shake it off… the injury has healed and there isn’t much scaring (they already told me to send a picture and i did) and the 5,000 covers the medical bills as i didn’t seek much follow up treatment. I paid the bills initially out of pocket due to the fact the insurance company was moving so slow, so the 5,000 would reimburse me for my initial costs. I guess my major concern is if I counter-offer, is there a chance they would just completely stop negotiating? at this point I don’t want to be forced into obtaining legal counsel, but i don’t wanna be naive and just except the first offer either. Part of me wants to just say can we do $10k & be done with this? But i know thats not how this works… Is it possible that if I countered with 12k they could just stop negotiations entirely?

        • fl_litig8r says:

          I’ve never had an insurer revoke a settlement offer just because I made a counter-offer. I’d expect that if they don’t like your offer, they’ll just say that their last offer is all they can do. While it’s always possible for them to rescind the offer, there is no logical reason for them to do so — if they’re willing to pay that amount today, why not tomorrow as well? I just never see this happen.

          Insurance companies aren’t delicate little flowers who will storm off in a huff if you make a counter offer that they don’t like. If they’ve reached their top dollar, normally they’ll just say so and still leave the offer open.

          I think a $12k counter to an $8k offer sounds reasonable. I can’t see that upsetting anyone. If they don’t want to come up, expect them to say “sorry, $8k is all we can do.” Hopefully, they’ll offer to split the baby and meet you at $10k. Even if they just come up $500.00, it’s well worth your time in making the counter-offer.

  4. sh says:

    Simple question- when addressing and actually mailing this demand letter- do I need to send a copy to the defendant? The person who hit me and not just their insurance company? All I have is the person’s name and basic insurance info given to me after the accident- I don’t have a mailing address for this person.

  5. Qwertz says:

    Thank you for all of the useful tips and advice in this website. I feel like I’ve gotten a great deal of information.

    Here’s my situation, we are in PA. My young child and I were in a store when a person drove through the window hitting us. My injuries were more severe than my child’s and included a head injury, stitches, scars and eventually surgery to repair tendons and ligaments. I am attempting to handle this on my own. The insurance adjuster feels that our claim may go beyond the driver’s policy limits and go into our UM as well. I have a couple of questions – first when putting together my demand letter, I will include my costs, a summary of the medical bills, I also have pictures of myself from the injury. Do I need to include a starting number? Wouldn’t it be in my best interest to let them give the first number? Knowing in advance what the limits of the policies are, I didn’t want to reduce what I can get by a third by using a lawyer. (Perhaps you think differently?)

    Let’s say the insurer does not go to policy limits and I decide to hire a lawyer. Would a lawyer be open to an agreement where I pay them 33 1/3 to 40 percent of the amount they can get me above what I had already been offered?

    Lastly if I have future medical bills related to this incident, will I need to pay my insurance back?

    Thank you!!

    • fl_litig8r says:

      Traditionally, the plaintiff makes the first settlement demand. It’s not a hard and fast rule, but it will be expected if you are sending them a formal demand package.

      As far as using an attorney, it is always a question of whether you think you can do better on your own than you would if a fee had to be taken out. Because your case involves a child, your settlement will likely require court approval. Often, if the plaintiff doesn’t have a lawyer, the defendant will pay an attorney to see that this is done. However, this attorney will work for the insurer, not you, so there is some trust involved in letting him handle this aspect of the case. Usually, it won’t be an issue.

      Don’t expect lawyers to be willing to base their fee only on the amount of the recovery that exceeds your prior negotiations. We don’t like encouraging people to handle matters on their own, as often people will screw up somehow and make the case more difficult than if we had taken it from scratch. Giving a discount to such people (as you’ll almost always get an offer of some kind) is just not in our best interests. Plus, if you’re going to a lawyer after trying to settle on your own, he knows that you’re not happy with what you could get without him, so you don’t hold a lot of leverage. I think a better suggestion would be to try to get the lawyer to guarantee you at least the amount you had previously negotiated after he takes out his fees and costs. This way, you don’t wind up losing money by using him, and he still has the chance to recover a full fee. At worst, if he just gets you the same amount you would have gotten on your own, you got his work for free.

      With respect to your health insurer, I’ll refer you to this article. The short answer is “probably yes,” but as with most legal questions, it’s more complicated than that.

      • curious says:

        I am so thrilled to find this site before I attempted to settle the car accident case where I was rear ended. Your information is invaluable and I am now re-considering the sanity of my idea to settle on my own. Thank you so much for the wealth of information you offer. Your kindness is greatly appreciated.

  6. ST says:

    Hello. I feel this is a good article with good comments and replies. I have a thought which is not addressed here and I wonder how it is typically handled.

    The question is: Would it be reasonable to include a settlement demand figure that you suspect may exceed the at fault driver’s policy limits but you are not sure because the at fault driver’s insurance company will not disclose the amount except to say that it equals or exceeds my UM/UIM coverage?

    Here are details: I was injured in an auto accident several months ago that caused injury resulting in medical bills of $75k present, $25k future; lost wages of $50k present, $15k future (total of $165,000). In consulting with an attorney a couple months ago and reading statistics, it appears I may be able to recover for pain and suffering around $200,000. Thus, grand total (ignoring other damages) is approximately $365,000 ($465,000 if I “pad” the number for negotiating purposes). MY UM/UIM limit is $250k.

    I know the at fault driver has a policy of 250k or greater, but the insurance adjuster for the at fault driver will not confirm unless I sue. I am trying to do this on my own and want to avoid a lawsuit. I suspect their policy limit is $250k also, but I cannot be sure. To repeat from above, would it be reasonable in my demand letter to simply state a demand for $465,000?

    • fl_litig8r says:

      I would ask for the $465,000.00. Let them come back and tell you that they are only offering $250,000.00 because that is the policy limit. I see no reason to assume that they only have $250,000.00 in coverage just from the information you have and possibly shortchange yourself by only asking for that. If your demand is well beyond their policy limits, that’s their fault for refusing to tell you what the limits are. If they come back with a counter of $250,000.00, make sure you know that this is the policy limit before you consider accepting it. If they still won’t tell you after making such an offer, I’d tell them (assuming you feel this way) that I would be willing to take the $250,000.00 only if they confirm that this is the policy limit. Otherwise, you’d have to hire a lawyer and sue them, as without a confirmation that they are offering limits, you could be leaving over $200,000.00 on the table. I think if they still won’t tell you that this is a sign that the limits are higher than $250,000.00, as they may be risking a bad faith lawsuit if they blow a policy limits settlement just because they refused to tell you their limits. Now, in some states, the insurer is required to get the insured’s consent to disclose policy limits, and the insured may be the one telling them not to tell you. This would likely preclude a bad faith case. If they refuse to tell you the limits after the negotiations discussed above, I’d ask them plainly if their insured is the one who won’t give them permission to disclose his limits. If he is, I’d urge that insurance adjuster to explain to him that if he only has $250,000.00 limits and blows this settlement, he will be personally liable for any amount you recover above that $250,000.00 at trial. See if they’ll take another run at him to get that consent.

  7. DL says:

    I was driving my car when a drunk driver rear ended me, sending me into on coming traffic. Luckily for me I avoided cars and trees, finally coming to a stop several hundred feet away from the impact. The drunk driver hit a telephone pole[splitting it in three places] jumped from his car and ran away. The police eventually caught the drunk driver and arrested him for aggravated DWI and leaving the scene of a accident were an injury occurred. This was clearly 100% drunk drivers fault. My car was completely totaled [he hit me with such force that the rear glass window of the my SUV was pushed into the back seat. My family found several items that were in the back [ sneakers, books]scattered over the road when they had been blasted out of the rear window. I received a concussion and resulting injuries to neck, back and shoulders. Also bruising to left lower leg. I have been treated for severe migraines resulting from this accident [very strong meds and physical therapy]. Physical therapy stopped after 3 1/2 months when no fault insurance deemed I was better. I have no medical insurance so continuing was not a option and I continued at home on my own as best I could. Since NY is a no fault state, my car insurance covered most medical bills and I was given a check to cover totaled car[definitely not enough to cover replacement]. I would like to sue drunk driver for my non economic damages and several bills that were not completely covered by my car insurance but his insurance company will not offer settlement stating that I don’t met one of the nine standards under NY law. Any suggestions on how to proceed.

    • fl_litig8r says:

      As in many no-fault states, you cannot recover any non-economic damages (pain and suffering and emotional distress) unless you meet a certain injury threshold defined by statute. Under New York law, you must have a serious injury, which is defined by N.Y.ISC.LAW §5102(d) using nine standards (this is what the adjuster is referring to). These nine standards for a serious injury are:

      1. A personal injury that results in death;
      2. Dismemberment;
      3. A significant disfigurement;
      4. A fracture;
      5. The loss of a fetus;
      6. Permanent loss of use of a body organ, member, function or system;
      7. Permanent consequential limitation of use of a body organ or member;
      8. Significant limitation of use of a body function or system; or
      9. A medically determined injury or impairment of a non- permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

      Some of these standards are notably vague, as discussed in a New York lawyer’s well-reasoned blog posts here and here.

      Additionally, against another vehicle covered by New York no-fault law, you cannot recover any damages for “basic economic loss”, defined in N.Y.ISC.LAW §5102(a). This includes all of the damages that are part of your $50,000.00 no-fault coverage — notably, you cannot recover the 20% of wage loss not paid under this coverage or any amount not paid due to a deductible. If your economic damages exceed the $50,000.00 coverage, you can still sue for that.

      In short, if your injuries don’t meet any of these nine standards, you can’t recover any non-economic damages, and you would not be able to recover your economic damages if the other driver had NY no-fault coverage and your economic damages were less than $50,000.00.

      I’d suggest that if you think your injuries meet one of the serious injury standards, you should try to retain a New York lawyer (or at least get a free consultation to see what he thinks about your chances of proving a serious injury).

  8. Tara says:

    Great site! Im helping my mother with a claim from Walmart in which she fell on something left on the floor. She has not received MMI yet, but may be close. Some of the bills were paid by Medicare under their allowance but they will look for reimbursement. Can I include a subrogation statement in the demand letter indicating that Walmart deal directly with Medicare and we use the remaining settlement $ and negotiate an amount to be paid on the balance for other insurers and providers?(I do NOT want to deal with the government on this, and I suspect Walmart will negotiate with Medicare directly….but not sure) Medicare has paid such a small % on these bills, but they are also overinflated. The “billed” amount which includes emergency treatment and followup surgery and physical therapy will probably total 70k. Walmart has indicated she will be paid pain and suffering, but don’t know how much or what their insurance limits are :).
    Going to try to settle this for her, but I know my limits and when to get help. Ordering some additional references on the topic, too!
    Would appreciate your comments on the questions above.

    • fl_litig8r says:

      It’s nice that you are doing something so time-consuming and frustrating for your mother. With respect to policy limits, you don’t need to worry about that with Walmart — it’s self-insured, and it has plenty of money. Of course, the bad news is that Walmart is notoriously aggressive and stingy in its claims handling, often forcing litigation where most reasonable business would just settle. If you feel like you’re getting railroaded, consider hiring a lawyer.

      With respect to the Medicare lien, I can’t really say if Walmart would accept a settlement wherein it agrees to pay the lien and then negotiates everything else separately. On the one hand, most defendants want to settle everything in a lump sum, and not leave anything open-ended, such as the amount of a lien which is unliquidated. On the other hand, because you’re pro se, it may feel more comfortable paying Medicare directly to avoid any potential liability should your mother decide not to pay the lien from her settlement. It’s worth suggesting your idea to them, if you really want to avoid the Medicare lien issue. If you get stuck dealing with the lien, you should check out this site, which is the official website for the agency which processes Medicare liens. The information in the Attorney Toolkit and Beneficiary Toolkit sections is pretty informative (and contains forms you can use).

      • Tara says:

        Still working on my mothers claim(actually shes my mother in law)- Im preparing the demand letter- should it be directly from her or can I write it and sign it on her behalf? Do I need power of atty to do this? Or should I just write it like she’s writing it.
        Second question: Im going to ask for the full cost of the charges from each provider and a pain and suffering multiplier. The area she injured is an area where she had previous surgery. Does that make a difference? They may come back and say this was a preexisting condition, but she was healed and doing fine before the fall.
        Final question: The fees from the surgeon are outrageous and Medicare made a conditional payment (13k for surgery, medicare paid 2500)
        So I doubt Walmart will fork out 13k, but Im not sure the doctor will accept less or what medicare paid….very tricky because if I agree to 7k for example, and the surgeon comes back saying they want 9k, she cant afford that difference…..
        Thanks so much for all you do…and by the way…Get some sleep!!:)

        • fl_litig8r says:

          1. I would recommend ghost writing the letter as if it were from your mother-in-law (and have her sign it). I had another commenter here who went the power of attorney route and got nothing but hassles and an accusation of unlicensed practice of law from the insurer. Save yourself that headache.

          2. Expect that they will try to make an issue of the previous surgery. You may want to address that head on in the demand itself and provide proof that she had completely healed and had not received treatment for that injury for some time before the accident. When you ask for your pain and suffering damages, don’t specify that you’re using a multiplier of the economic damages. That’s just a rule of thumb. Use the amount you calculate from the multiplier only, and explain that it’s fair just by referencing the amount of pain from the accident, the treatment, and any loss of ability to perform prior activities (loss of enjoyment of life).

          3. If the doctor already took the $2500 from Medicare, he can’t “balance bill” your mother-in-law for the rest. If you’re sure that Medicare already paid, feel free to demand the $2500 from Walmart. You’re right to assume that it won’t pay any more than that, if that payment was accepted by the doctor.

          I’ll sleep when I’m dead. 😉

  9. sh says:

    Truly a fantastic site!
    I’ve sent off my demand letter with a 30 day limit. I’m at day 20 now and I haven’t hear anything from the insurance company- no give or take-nothing. I have a postal certified mail receipt for the day I mailed the package of info…. If they just drop the ball am I looking at bad faith? Small claims? I expect this case to settle around $10K at most. This is Allstate which the adjuster (in CA) told me to mail any info to their scanning center in TX.

    • fl_litig8r says:

      You only have a shot at a bad faith claim if your lawsuit is worth more than the tortfeasor’s policy limits. Because you value the case at around $10k, that seems unlikely. When the policy limits are adequate to cover the claim, the only incentive the insurer has to meet your deadline is to avoid you filing suit.

      Before you rush off to small claims court, know that the California small claims limits for personal injury cases resulting from car accidents when liability insurance is available is still only $7,500.00. While the general small claims limit for most claims was raised in January 2012 to $10,000.00, it stays at $7,500.00 for insured auto accident cases until 2015. This means you’d be capping your damages at $7,500.00 if you sue in small claims court. It may be worth the cost of an attorney’s fee to avoid small claims court and the $7,500.00 cap.

  10. sh says:

    I’m thinking this is just too small for big boy court- the lawyer fees would eat everything. $7500 would be OK but I also understand in CA the defendant can appeal if it’s over $2500 from small claims.

    Don’t they have any obligation to negotiate with me? Wouldn’t that make them look bad to a judge in court? This is a rear end accident- they’ve accepted all responsibility – there’s no claim whatsoever against my insurance. I was rear ended at a sitting at a stop light.

    Oh.. and because of the defendant’s ability to appeal from small claims (which is what these insurance companies are doing these days so they can bring their lawyers)… I’m wondering- can an individual (me) file directly to court beyond small claims? I’m an MBA and really organized and OK with public speaking and debate. Is there any advantage to small claims if I’m going to get appealed anyway?

    • fl_litig8r says:

      Well, I took some time and read up on California small claims court rules due to your description of their procedures, which sounded ridiculous to me but turned out to be 100% accurate. To give you some perspective as to why I was surprised by California’s rules, in Florida attorneys are allowed in any small claims case, and an appeal of a small claims decision is reviewed as an appeal should be (a review looking for error by the trial court based on the record from the original trial) — not a complete retrial as is the case in California.

      But yes, you are correct — no lawyers are allowed in the original small claims hearing; only defendants can “appeal” (really, this is a retrial and not an appeal, but I’ll use the term appeal to avoid confusion); they can only appeal if the damages awarded exceed $2,500.00; and yes, for some reason attorneys are allowed at the new appeal trial even though they weren’t allowed at the original. There really doesn’t seem to be much incentive for an auto accident defendant to put much effort into the original trial if they get to use a lawyer at a new appeal trial, so I don’t see the logic behind this process.

      On to your questions. . .

      Technically, they have no legal obligation to negotiate with you. Their duty to pay you arises only after you get a judgment against their insured. Until then, they owe you nothing and don’t have to negotiate if they don’t want to.

      Realistically, they know that litigating the matter, especially in a case worth about $10,000.00 is not really cost effective. If they believe that you will actually sue them if they don’t settle, they probably will want to negotiate. Even if they don’t respond to your demand letter (because it wasn’t sent by a lawyer, so they may think you really won’t or can’t sue), if you sue them in small claims court they’ll probably want to negotiate then. I would imagine that in a case of admitted liability, they wouldn’t want to ultimately have to pay a lawyer when they can settle for $10,000.00 or less. So, while you’re concerned about them hiring a lawyer to appeal a small claims judgment, I doubt that it would get that far. A lawyer might be able to reduce your judgment, but probably not by enough in a case of admitted liability to justify his fees — at least not when your damages already max out at $7,500.00. It’s just not cost effective.

      I really wouldn’t recommend trying to file suit in anything other than small claims court. While you may be smart enough to learn the rules, it won’t be worth the effort required and you’ll still have no experience, which is more important than raw intelligence when it comes to trying a case (in a court that will hold you to all formalities). Plenty of excellent lawyers are scared to death to go to trial, and the longer it is since their last trial, the more scared they get because they keep forgetting more and more as time goes by, and there’s a lot you need to know to conduct a trial. I strongly suggest that you stay in small claims court if you’re going to sue on your own. The advantages I see are two-fold: (1) they may not be so quick to appeal, for the reasons I stated above and (2) the procedures tend to be far more relaxed in small claims court — it’s just a much easier environment when the judge is kind of walking you through the process. That won’t happen in a non-small claims court.

  11. LoriS says:

    Hello, learning many tips on this site since we’re going to be sending a demand letter shortly.

    Our vehicle was hit from behind (we were doing 40 and the other driver was doing 80 – admitted and in the police report); she hit the back then spun and hit the side of our car so we rolled once landing on the tires. My husband was driving; I was a passenger in the front and 13 year old in the back passenger side. The happened on a very busy freeway in California.

    We have loads of injuries, loss wages, PTSD, depression, and surgery for husband (spinal).

    My questions are:

    1) Do we send a separate demand letter for each one of us or one letter with one grand total?
    2) Are policy limits per person – meaning, for example, if they have $100,000 but we ask for $500,000 between the three of us, is it possible for a $300k offer/settlement or only $100k?
    3) Do we copy our own insurance company on the letter – putting them on notice they may need to pay out on the under-insured part of our own policy?
    4) The driver is not the policy holder – it’s her father’s insurance. If the insurance meets policy limits, do we sue the father or the daughter or both for the remaining amounts?

    Thanks for your time!!

    • fl_litig8r says:

      1. A single demand letter is fine. I would recommend having separate sections for each of your damages, e.g., “Wife’s Name’s Wage Loss, Husband’s Name’s Wage Loss, Wife’s Name’s Medical Expenses, Child’s Name’s Medical Expenses, etc. I would demand separate amounts for each claim. This would be important both for preserving your potential bad faith claims and for negotiating health insurance liens.

      2. Policy limits can either be split or combined single limit. If they are listed like “100/300”, then they are split and the first number is the per person limit (the second is the limit for all people combined). If they are expressed as a single number, like “300”, then they’re combined single limit, and that total just limits all damages from all plaintiffs combined, with no individual limit. So, under a split limit, an individual claim worth $150,000 could only recover $100,000, even if the two other claims are only worth $10,000 each. Under a combined single limit, the $150,000 claim could be paid in full as long as the other two claims are worth $150,000 or less combined (so they don’t exceed $300,000 total). There’s really not much point to demanding more than policy limits unless you know their insured has the ability to pay the excess amount within a reasonable time. Most of the time, this isn’t the case and demanding more than policy limits makes it easier for the insurer to say no (as there’s now no risk of a bad faith claim).

      3. I wouldn’t copy your insurer on your letter to the BI carrier. California law doesn’t require that you get permission from your UIM carrier to settle with the BI carrier, and only requires notice to your UIM insurer when you file a lawsuit against the underlying tortfeasor (not when you’re making a settlement demand). To learn basically all I know about California UM/UIM law, see my July 20, 2012 comment to Vicki after this article. While your UIM insurer has no duty to pay until after the BI carrier has paid its policy limits (another reason to make separate demands for each claimant), if you feel that one or more of your claims will exceed those limits, you could send a separate demand letter to your UIM carrier now which includes all the same information as you sent to the BI carrier, but demands the amount which exceeds the BI carrier’s limits (assuming your UIM limits exceed the BI limits). You could also choose to wait until after the BI claim is resolved, but sending your UIM demand(s) now could save time if you’re sure that you have one or more claims that will trigger this coverage.

      4. What you should do is hire a lawyer — not try to sue on your own. That being said, under California law, vehicle owners are only liable for up to $15,000 unless they were independently negligent when allowing the third party to drive their car (e.g., they knew the person was unfit to drive), so you couldn’t collect anything more from the owner without proving that he was negligent in allowing his daughter to drive. In theory you could sue the daughter, but the insurer isn’t going to settle unless you give both insureds a full release. They won’t pay you anything without such a release.

  12. SBF says:

    My case will be settled soon. The settlement letter states the defendants are free to sue the plaintif after the case is over. If I have to drop all lawsuits against the defendant, to accept the settlement offer, why should the defendant be allowed to sue me, the plaintiff? Can I cross this out, or ask that it be removed from the settlement letter? Is this wording normal from the Insurance Comapany? This is a personal injury lawsuit where the defendant has accepted. (A case of my injury due to gross neglect on the part of the homeowner.)

    • fl_litig8r says:

      The wording, as you describe it, is not normal for a personal injury release. While a standard release will contain “indemnify and hold harmless” language, which basically allows the insurer/defendant to sue the plaintiff if an unpaid (usually medical) lienholder sues them for repayment after the settlement, it isn’t normal for such a release to state that the defendants specifically reserve the right to sue the plaintiff for anything.

      While you could cross it out, I would suggest calling the adjuster and discussing it first. Not only would this make the revision process smoother (you could agree to any replacement language ahead of time), but it may also let you feel out whether the defendant is legitimately thinking about suing you for something. Don’t expect to just slip the revised (crossed out) release by them — they will notice. So, it’s better that you handle your revisions openly, which will save you time in getting this matter resolved. They may surprise you and just agree to the removal of the language.

  13. vanessa says:

    This may be miniscule but I slipped and fell in a local grocery store. Its one of the biggest grocers in the state of Texas. I didn’t go to a doctor because its mostly pulled muscles, soreness, bumps and bruises. I was out of work for a day and was off the next two days. I was sore for about a week and a half. I talked to the adjuster and she said the could offer me $400 out of courtesy for my lost work time. I tried to tell her that I had to put my life on hold to heal, I had a hard time taking care of my special needs child and she said to think about the offer and its only a courtesy since they have not done of full investigation into the claim to determine liability. I slipped on finger nail polish remover that was spilled in the middle of the aisle. $400 seems low to me. Your thoughts?

    • fl_litig8r says:

      Given your lack of medical treatment, I doubt that there would be many, if any, lawyers interested in taking your case. This means you have to get the best you can on your own. Slip and falls due to spills are not slam dunk cases, especially when the spilled substance was likely spilled by a customer and not by an employee or caused by defective equipment, like a cooler. It really boils down to how long the spill remained there, which often you have no way of knowing (unless there is surveillance video of the spill, which might be erased by now). You would have to prove that the spill was there for a sufficient amount of time that a store, through reasonable policies, should have detected it. As you might expect, the law doesn’t require that stores constantly monitor every aisle for spills. I’m sure the store will argue that it has some policy in place for periodically checking for spills at reasonable intervals, but for you to contest this on your own seems impractical.

      While this matter might have been worth pursuing had you suffered a serious injury that required medical care, I really think you’re in a position to just take what you can get. It wouldn’t hurt to ask for more (I doubt that they’d move more than $100-$200 from their initial offer, if at all), but the reality is that $400 is better than $0, which is likely what you’ll get with a case that no lawyer will touch. As long as you’re sure that your injury is fully healed, and not something serious, you should seriously consider their offer.

  14. Jenny says:

    I am 20 years (insured by my parents but do not have not UM insurance) and live in Florida which is a no fault state. I was in a pretty bad car accident recently where I was a passenger and the driver drove into a tree going 70 miles per hour. The car caught fire was a total loss. I lost several personal items and I endured permanent injuries.

    I have a C1 fracture, C5 and C7 herniated discs and straightened C spine. Because of the injuries locations there is really nothing they can do at this time just monitor the injuries, make sure the fracture heals without impeding on my spinal cord.

    The owner of the car (also 20 and insured by parents insurance $25,000 BI limits) asked another friend (also 20 and insured by parents $100,000.00 BI limits) to drive me home because she had been drinking. Can I request BI limits for both the owner of the car as well as the driver of the car?

    • fl_litig8r says:

      Yes (wow, that was an easy one). Both the owner and driver of the vehicle are liable for your injuries, so if they are two different people insured under two different policies, you can recover from the BI insurance of both policies.

  15. shawn says:

    We were hit head on by a driver that had expired license , and actually admitted to her own fault, and was speeding for the road conditions. We had a total of around $80,000.00 in medical bills what would you ask for if you was going to demand phase. Another thing that scares me is that she has the same insurance company that I do State Farm so I am afraid we will get cheated. the accident involved Me My wife and my two sons

    • fl_litig8r says:

      Do you know the other driver’s liability limits and did you have UIM coverage? How much to ask for may not be a big issue if the available policy limits don’t even equal your medical costs. If you have reached MMI and are sure you’re ready to make a demand, I can only refer you to this article for general guidelines in valuing a case. I can’t say just from your medical bills (or any other information I can get from just an Internet discussion) what you should ask for, only that after you’ve come up with a ballpark from using the valuation article I linked, you should ask for more than that in your demand so that you have room to negotiate.

      If there are very high limits available and you feel that the insurer is lowballing you, you should really consider hiring a lawyer. I know you want to avoid the fee, but when you’re talking about a case where the medicals are $80,000, unless the insurer is tendering policy limits you’ll probably make out better with a lawyer than without, even taking his fee into account.

      As far as State Farm being both yours and the other driver’s insurer, I wouldn’t worry too much about that. State Farm is the largest auto insurer in Florida, so we see this scenario quite often. I’ve yet to have it cause any problems.

  16. Elizabeth Rigel says:

    I was just wondering if I am making a mistake. My son and I were rearended by a pickup truck(we were in a G35 coupe).My car had $10,000 in damage and was a total loss. My son suffered a minor laceration to his neck from the seat belt and a severe headache. He visited the ER and was released. He missed one day of school for observation at home. The insurance adjuster is offering $400 for his pain and suffering. His ER bill was about $450. Is this a fair offer or completely lowballed? The adjuster also tried to get me to agree to settle for my ER visit, not realizing that I am in physical therapy. My left shoulder is still having major issues 3.5 months after the accident.

    • fl_litig8r says:

      As far as your son’s claim, $400 doesn’t sound too bad for a little pain, an ER visit and a day off from school, assuming that this is in addition to them paying the ER bill. I wouldn’t waste time second guessing whether you could have gotten more — if you could have, it wouldn’t have been much. As long as you’re sure that his injuries have resolved, that deal sounds o.k. to me.

      With respect to your shoulder, make sure you’re at MMI before discussing settlement with the adjuster. You don’t want to rush into a settlement only to find out afterward that your injury is worse than you expected and will cost you a lot more than you thought. Let your treatment continue until you’re sure you know the full extent of the care you’ll need and any long term or permanent problems you may have.

  17. Katherine says:

    This is a great article! Super-informative; thank you.

    I just received a check from my insurance company today, with this note attached to the check: “Dear Katherine, Enclosed is a check for the deductible you incurred ($250) as a result of your claim. We have been able to fully recover the amount we paid for your loss and our file is now closed. We would like to thank you for your business and if you have any further questions, please contact our service center at __.”

    Two things: 1) The other insurance company already sent me a check for the $250 deductible months ago, and I used it to pay the people who fixed my car. What is my obligation re: what to do with THIS check?

    2) A number of years ago I was in a car accident in Ohio, with probably a similar amount of medical bills as I’ve incurred in THIS accident (~ $5000; I was recently rear-ended in WA State; it has been determined that the other driver was at fault). After the accident in Ohio, the other driver’s insurance company sent me a check for $5000, after they had paid all medical bills. Does that sort of thing happen in Washington, as well, i.e., that I can expect that more funds will come my way from the other insurance company, or when MY insurance company says “our file is now closed,” does that mean I’m “done”?

    Thanks for your help!

    • fl_litig8r says:

      1) I’d keep the check. It sounds like the other insurer paid your insurer the amount of the deductible as part of your insurer’s subrogation claim under your collision coverage, not realizing that it already paid that amount directly to you. You could send the check back to your insurer, who could then reimburse the at-fault driver’s insurer, but I doubt anyone would ever catch it if you just kept it. Certainly your own insurer doesn’t care, and the time and effort it would take for the other insurer to try to get the money back if it ever discovers the error probably isn’t worth it for $250. So, think of this more as practical advice than legal advice.

      2) Your insurance company saying that their file is closed relates only to the claim for damage to your vehicle paid under your collision coverage. Your insurer paid to repair your car and recovered its money from the other insurer’s property damage coverage, so as far as it is concerned, that claim (the collision claim) is closed. It has nothing to do with your claim for bodily injury. I would expect the at-fault driver’s insurer to make you a separate offer to settle your bodily injury claim, with some portion being for medical bills and lost wages (if applicable) and likely a decent amount above that for pain and suffering. I can’t say how much they will offer, because there are too many factors involved in valuing a case, but if they don’t make you an offer, you should send them a demand once you reach MMI.

  18. Katherine says:


    I’ve answered my own questions (above): I called my insurance company and let them know of their mistake in sending me the $250 deductible (that I’d already received from the at-fault party’s insurance company) and I’ve voided the check.

    The “our file is now closed” was just referring to the portion having to do with my car. I will receive more formal (i.e., not just on a check stub) notification when the medical portion is complete. Because I have completed my medical treatment, I can contact the other insurance company directly, and inquire about any further settlement.

    Ta dah! Thanks for this site: it’s empowering just to read it.

    • fl_litig8r says:

      Well, damn. That’s what I get for answering a comment before I check to see if there were any follow-ups by the same user. I just finished answering your first comment. Congratulations on your honesty in telling them about the check. I wouldn’t have (as you can see from my prior response). Hopefully your good karma will be rewarded.

  19. Melissa [last name removed by admin] says:

    Hello; I was injured in a slip & fall accident last winter ( 2013.) My wrist was broken and 2-3 places as well as the humerus bone on the same arm. I had a cast on the wrist, the bones healed on time. But I am left with damage; frozen shoulder, stiff hand & wrist and can’t make a fist. Demand letter was sent asking $150,00. I just told them I want to start the process of settling. The area where I fell ( right outside front doors of the business) is in bad shape. Broken concrete, un even seams. The next morning after the accident they had a crew there repairing it. All they did was spray white stuff and chiseled some of the cracks, it’s actually just as bad now as when I fell on it. The company also owns the outside area I slipped on. The adjustor said they don’t have liability ins. but have a pooled resource of ‘funds’ for settling claims. What advice can you give me so as not to make mistakes? Was the demand amount too low? BTW: the claims adjustor thinks he’s ‘Columbo’. And.. I don’t want you to be my lawyer, just my brother\ advisor.
    thank you!

    • fl_litig8r says:

      I can’t say whether your demand was to low because I just can’t evaluate a case over the Internet (I’m assuming you meant to write $150,000 and not $15,000, which would almost certainly be too low). So much goes into valuing a case that I’d really just be guessing about the value of yours, which does you no good. I can say that you can bet your offer is too low if the other side immediately accepts it, so if that didn’t happen, at least you have that going for you.

      It sounds like the business is part of some group self-insurance fund, which isn’t good news. Even though these types of claims are often handled by third party adjusters, they aren’t insurance, so they aren’t subject to traditional bad faith remedies if they don’t negotiate reasonably. Also, because you’re not dealing with a billion-dollar company like an insurer, they tend to be more tight fisted with the purse strings. Who knows how much money they have available to pay claims, or what limit the fund places on individual claims before the owner has to pony up his own money? Even if you’re in a state that requires liability insurers to disclose their limits to claimants, the laws requiring this likely don’t apply to self-insurance funds. It’s going to make things harder.

      I say this not to discourage you, but just to brace you for some hard negotiating. For now, the only advice I can give is to wait for their counter-offer. Don’t bid against yourself if they come back merely saying that your demand was too high. If they won’t make a counter-offer and expect you to keep throwing lower and lower numbers at them, then you should hire a lawyer. If they start with a lowball counter, don’t assume that they won’t eventually get to a reasonable number. Just gauge your own counter by how much you think they have to move to satisfy you. If they make a large move, then you shouldn’t make a token move in response (and vice versa). As long as they’re moving in the right direction, keep the talks going until you hit their top dollar — don’t give up if it seems like they aren’t moving enough at first. Sometimes it takes a few exchanges before you start talking reasonable figures.

      Also, don’t forget that you’re probably going to have to pay back your health insurer for the amounts it paid for your accident-related treatment. Be sure to get an accurate figure on the health insurer’s lien (their subrogation department should give this to you without any problem) before you agree to a settlement.

  20. melissa [last name removed by admin] says:

    Hi: Sorry, yes, the claim amount is $150,000. The injury is to my right\dominant arm. The area where it happened is part of a county, my state’s biggest county. The claim is with that county not a private business\owner. Wouldn’t that mean they have more funds? If there is a limit for claimants with this type of ‘fund’ for pay outs shouldn’t I just ask? The thought of haggling with them if all along they know the end result is demeaning.
    I appreciate your help & knowledge, thank you!

    • fl_litig8r says:

      The fact that this is a county does change some things. First, you are right that the amount available to pay claims should not be an issue. But, on the flip side, you now have to deal with sovereign immunity issues. This generally means that there will be a cap on the amount of damages you can recover in a negligence claim set by statute (for example, in Florida, that amount for individual claims is currently $200,000) and there is likely a requirement that you must give formal notice of your claim within a certain time frame or lose your right to sue. In Florida, you must give notice within 3 years not only to the government agency you intend to sue, but also to the Florida Department of Financial Services. In other states, this formal notice deadline is much shorter, so you should research your own state’s “waiver of sovereign immunity” law to find out what it entails, as well as the maximum amount you can recover. Even though the county is obviously aware of your claim, failure to comply with the formal notice requirements is required to ensure that you retain your right to sue.

  21. melissa [last name removed by admin] says:

    Thank you again fl litgtr! I would not have know about sovereign immunity and will check that. I can handle the negotiating but don’t want to lose my cool with them and my goal has been to get this done without an attorney. I have to say, there aren’t many lawyers with sites like this. I realize this is an LLC but you are helping those of us who believe we can get justice without paying for it. I guess many of us are rogues, like yourself. I left a message with ‘Columbo’ on Thursday to start the settlement process, how that starts I don’t know. They will have to go over my medical bills ( which are now over 13K. ) They have my x rays, pictures, etc. I am wondering how long before we start talking numbers? I think you might practice in Fl, the state of crazy wacky laws. I see now that personal injury law is complex & I have respect for it. It’s there to protect people who get injured through circumstances that were out of their control, for the most part
    I will try to not take up more of your time unless I really need it. There are so many out there who are desperate for help; we need more like you!
    BTW: I bought a car, it was a lemon, I fought a group of car dealers on my own to get the sale rescinded. They told me it wasn’t going to happen, threatened me, tried to offer me another car, etc. I found the loop hole-a lie they put on my app. and went for it. I got the car back and still drive it. I framed the rescind notice. Negotiating with ‘Columbo’ doesn’t seem as intimidating, we’ll see.
    Take Care

    • fl_litig8r says:

      Florida is not “the state of crazy wacky laws”. All states have some strange laws, or laws that don’t fulfill their intended purpose. Florida is no worse than any other state. In fact, we have some very good laws, which others states should follow, such as the requirement that liability insurers disclose their policy limits to claimants, the fact that our UM/UIM coverage is always treated as the full amount above and beyond whatever liability coverage an at-fault driver may have (some states only allow you to recover UIM insurance to the extent it exceeds the at-fault driver’s liability limits, meaning that you’re paying for coverage that may be useless and illusory), and the fact that we require insurers to pay settlements within 20 days or interest must be added to it for every day late.

      Some states (not Florida) still ascribe to the theory of “contributory negligence”, where a plaintiff who is even 1% at fault for her own injuries is barred from any recovery against the 99% at-fault defendant. Florida’s Supreme Court just ruled in March of this year that our statutory caps on non-economic damages in medical malpractice cases are unconstitutional (a big victory for the worst victims of medical malpractice). There are other states that have med mal damages caps still in place that limit not only non-economic damage recovery, but economic, as well, such that a person who has a catastrophic injury (or dies) due to medical malpractice doesn’t even get to recover the full cost of the medical care and/or wage loss necessitated by her injury.

      I could go on and on, but my point is that Florida really gets a bad rap from national media. We certainly don’t have the worst (or even weirdest) laws in the country. A few high profile, outlier cases may make it seem that way, but it’s just not the case.

  22. melissa [last name removed by admin] says:

    Hi fl; Strike my comment. I have issues with ‘stand your ground’ as it is now. Not all states have it and it varies state to state. FL is a beautiful state, I will say that. Thanks again for the help you offer to us. If I hit a rough patch in the negotiations I may be back for expert advice. Seems so futile to have this haggle-fest when the county pretty much knows what they will pay, I’m hoping it is fair.

    • fl_litig8r says:

      Well, as you say, Florida is far from the only “stand your ground” state. We just got the most attention for it due to the Zimmerman case. Unfortunately, it’s one of those laws that has superficial appeal (i.e., “Why should a victim of violence have to run from an attacker?”), but in practice it can be very messy and difficult to apply, especially if there are no third party witnesses to verify (1) who the aggressor was and (2) if the person asserting the defense was faced with a reasonable fear of severe bodily injury. It’s a lot easier to sell the superficial message to voters than it is to explain the nuanced problems with its potential application.

      Of course, there are lots of bad criminal laws on the books in most states, from ridiculous drug laws (including civil forfeiture) to mandatory minimum sentences. Politicians are always safer supporting these laws because they don’t want to appear soft on crime, regardless of how unjust they may be. At least with drug laws, it appears that public opinion is starting to change — so there’s hope for reasonableness in the future on that front.

  23. Beatrice says:

    I live in Oregon. Where the 20.080 small injury claims law encourages insurance companies to respond to claims under $10,000 by making them pay attorneys’ fees if they do not respond within 30 days.
    A car crashed into mine a year ago. My insurance told me that the other driver declared that he has accepted liability for the accident.
    I had $12k in medical covered by PIP: soft tissue neck injury chiropractic treatment, ER; plus I dealt with PTSD by seeing a psychologist who used EMDR. I researched solutions for PTSD and found that EMDR, which works with most people is also expedient, ergo inexpensive.
    After much research on what to do after an accident, I have written a settlement claim letter ready to send with USPS certified receipt mail to the other driver and to his insurance company’s representative.
    The thing is I am stuck. I am afraid of making a mistake and/or of the insurance company taking advantage of me. I am wondering if I could find an attorney who would review the letter. I am wondering if I just lacking confidence.
    BTW: This crash opened my eyes to the world of (forgive me) ‘ambualnce chasers.’ I have been very impressed with almost every attorney I have spoken with. While it took me a while to realize why they were not particularly interested in my claim, most were very helpful and good people.
    In the past, I was aware of the false marketing efforts to encourage people to believe things like “This is a litigious society.” etc. (i.e.,The truth about the McDonald’s coffee case.) It never occurred to me that Personal Injury Lawyer were not getting the credit you deserve. Your site is the best.

    • fl_litig8r says:

      I can’t imagine too many lawyers would be willing to review your demand letter for you without taking your case outright. Too much risk with too little reward. You might be able to get one of the JustAnswer lawyers to do it for a reasonable flat fee, but I’m not sure if even they would be allowed to do something so case-specific. It may be worth a try if you don’t have any other ideas and you’re still nervous.

      Otherwise, you’ll just have to decide how comfortable you are with going it alone, especially if you’re still dealing with mental health issues. Lots of people settle their own claims, especially if they’re relatively small, so you know it can be done. You seem to be educated and you write well, so I don’t see why you couldn’t handle it on your own. Plus, as long as you make 67% of what a lawyer would have recovered (assuming Oregon lawyers use a 1/3 fee), you’ve come out ahead.

      In short, if a JustAnswer lawyer won’t help you for a small fee, I don’t see why you shouldn’t at least try to settle on your own. If you get cold feet or think that they’re trying to take advantage of you, you can always try to hire a lawyer at that time.

      P.S. Thanks for the positive words about PI lawyers. While most of us aren’t really bothered by the public’s negative opinions about us (we need thick skin to do what we do, anyway), it is refreshing to occasionally be thanked for what we do.

      • Beatrice says:

        Who are you?! I am reminded of the Lone Ranger.
        I am amazed at your service. Are you just waiting for an email to come in so you can answer it immediately?
        Yes, OR attorneys take a 1/3 fee. (Not 30% as I was corrected on one occasion. jeez)
        The EMDR was effective for the PTSD, so far. I saw the psychologist last November. I guess this is just lack of confidence.

        • fl_litig8r says:

          I think you’re just getting lucky with the timing of your comments. Like right now, I just logged in to answer a question from someone else who posted earlier and here’s your post — so I might as well respond to them both at the same time. I try to answer questions within 24 hours, generally. I’d say I’m batting about 90% on that (every now and then there will be an issue where I don’t get e-mail notifications), but there are a lucky few like yourself who seem to have a knack for posting at the right time and you get to ride the coattails of an earlier commenter to a faster answer.

          Glad to hear that you’re doing better. If you’re up for it, I don’t really see any harm in you taking a stab at settling on your own. You can always try to find a lawyer to take over if it becomes uncomfortable or you think they’re not taking you seriously (though you shouldn’t base that on their first offer, which will typically be low).

          P.S. Yeah, we lawyers are kind of sensitive about the 30% vs 1/3 fee thing. It may sound insignificant, but we really want to avoid having a client on a $100,000 case ask us why we’re taking an “extra” $3,333.33 when “we agreed” it was a 30% fee (in other words, we didn’t correct them when they misstated what was in the contract). So, we are in the habit of correcting people immediately on that issue. It’s a reflex for most of us.

          • Beatrice says:

            I love you.
            I have been reading more of your posts. I noticed you have one on the HBO MacDonalds lawsuit that I mentioned. I researched that case many years ago when the brouhaha was all over the news. I am often suspicious when things are sensational. Do you know the story behind the story regarding Ted Kaczynski’s case? Gives one a different perspective.
            I have also read many of the comments and your replies. You are very patient and unbiased when you answer. Admirable. And, you are very funny.
            I don’t want to overdo the adulation, but you are so impressive. Did I say I love you?

          • fl_litig8r says:

            Now you’ve got me curious about Ted. I’ll have to look into that. Thanks for the adulation — it’s nice to hear. I’ll try not to let it go to my head.

  24. Brian says:

    Your site is extremely informative. Thank you. I feel that my question has been addressed already, but I am still unclear. Let’s assume the driver is fully at fault, my medical totals 35K, and that the collision was very traumatic, required surgeries, and significant scarring will remain. My understanding is that such a claim would be worth at least medical plus 3x medical or 140K. The insured is underinsured (undisclosed, but probably 25K). I have 100K in underinsured coverage and a 10K PIP (which would reduce the amount I owe the providers to 25K). When I draft my letter to the underinsured’s adjudicator, do I ask for 140K or do I ask for the policy limit? If I ask for for the limit, that still leaves 115K wanting. So, do I then ask for the limit of my policy? My concern is they would give me that limit and then ask me to pay for the full 35, but my value was 115K and they only gave me 100K, so should I have to pay anything back?

    • fl_litig8r says:

      As far as the at fault driver’s insurer is concerned, you could go either of two ways. You could request the total value of your claim and wait for them to respond with a counter-offer of their policy limits, or you could make your demand simply for their (unknown) policy limits. Either way, I’d require proof of the policy limits as a condition of accepting an offer. The advantage of a demand that merely requests policy limits is that it creates the potential for a bad faith lawsuit, should the insurer reject your demand or make you a counter-offer of less than policy limits. This puts more pressure on them to settle quickly.

      Depending on your state’s laws regarding UIM insurance, you may need to first obtain the approval of your own insurance carrier before accepting a policy limits demand from an underinsured tortfeasor (for example, this is required in Florida). So, if you’re in a state with this requirement, you should include in your demand that acceptance of their policy limits tender would also have to be contingent on your own UIM carrier’s approval.

      States also vary on whether UIM coverage pays the full amount of its stated limits, over and above whatever BI coverage the tortfeasor may have, or whether it deducts the amount of the tortfeasor’s BI insurance from your coverage. Under the first method, you would have $125,000 in total coverage available ($25k BI + $100k UIM). Under the second, you’d only have $100,000 in total coverage available ($25k BI + ($100k UIM – $25k offset for BI)). You need to figure out how your state’s UIM coverage works so you know the total amount of coverage available under both policies.

      With respect to paying back part of the $25k in medicals after your PIP pays its $10k, that depends on who you owe the money to. If it’s a medical provider, like a doctor or hospital treating under a letter of protection, they may be willing to reduce their bills a little if you can sell them on you not having made a full recovery — but they really don’t have to. If it’s a health insurer, it depends on many factors which I discuss in this article.

      • Brian says:

        Thank you this was exactly the information I needed!

      • Brian says:

        One more issue though. If I demand policy limits, because I feel my case is worth more than those limits, why wouldn’t they counter offer with an amount less than policy limits? If a policy limit is 100,000, should I not request 200,000 so that they can counter with the policy limit? Or is the request for policy limits already implying that the case should be valued above those limits?

        • fl_litig8r says:

          With respect to the BI insurer, a policy limits demand actually puts more pressure on them due to the threat of a bad faith lawsuit. If you never said you were willing to settle for policy limits, there’s little risk of them being exposed to bad faith liability.

          With respect to the UIM insurer, asking for more than policy limits will just make it look like you don’t know what you’re doing. You know the maximum amount they are legally obligated to pay under your policy and so do they. You’re not going to trick them into thinking they got a bargain at policy limits by asking for more than they would ever have to pay.

          That being said, feel free to state the value of your case as being well beyond policy limits. The point of this is to give the impression that there’s no way they’d get off paying less than policy limits if it went to a jury (so there’s no point in them offering less. . .). However, when you come to point of making your actual demand to settle, make it for policy limits. Asking for more really gets you nothing, and will probably encourage them to jerk you around because you don’t seem to know what you’re doing.

  25. Andrew says:

    Mr litigator, thank you for all of your great advise! This is an excellent source for those if us that are dealing with a difficult situation. I was involved in a car wreck 1 year ago in Colorado. I broke my wrist and required multiple surgeries. I also had neck and back damage that required 7 months of treatment. To date my medical bills are at $28,000.00 my Orthopedic hand surgeon told me at my follow up today that I am developing arthritis and will need to fuse my wrist in the future. He said it could be 2 years or 5 years down the road depending on how fast my wrist degenerates. He anticipates future medical to be $50,000.00-$60,000.00 lost wages and income are upwards of $40,000.00 I am a self employed general contractor(construction). I’m also an avid rock climber. I will never be able to climb like I used too. I have had to hire out allot if the physical work that I used to do myself. The at fault parties insurance has hired a lawyer to represent them. I’m pretty sure they have a very large policy. The insured is a successful business owner. His policy is with a company that also does asset management. I am confident in my ability to negotiate and write a demand letter. My question to you is, given the complexity of my case (future medical, self employed, rock climber etc..) should I get a lawyer or go it alone? My Dr is writing a letter stating the condition of my injury and the cost of future med expenses. I can show a substantial difference in tax returns from last year to this year. I can get letters from clients stating that they did less business due to my diminished capacity etc.. I can prove that the level of climbing I was at was advanced and is now severely diminished.Thanks again for this great resource!

    • fl_litig8r says:

      It seems that you have a pretty good handle on what you need to do to prove your damages, though I will warn you that proving wage loss for the self-employed can be a nightmare even for lawyers. Tax returns are nice (especially if you didn’t do anything questionable on them, as so many self-employed people do), but proving that a downturn in business is attributable to your injury and not market conditions or other factors isn’t as simple as it seems. You seem to be able to articulate your claim well enough that I think you could give settling on your own a shot. If, after a round or two of offers, you feel that they aren’t being reasonable, you could always retain a lawyer at that point.

      Be very careful with respect to their requests for information. As a lawyer, I never give liability insurers medical releases for my clients — however, they may require this from you because they are less likely to trust that a pro se litigant will give them complete records on his own. That’s something you may need to compromise on, in which case I’d make sure that the medical releases state clearly that they are good for a single use only. If they want to take a recorded/sworn statement from you, that’s another deal entirely. Again, this is something I don’t allow my clients to do for liability insurers. I would really advise against you agreeing to this, either. You can tell them your facts in writing for now, and answer any questions they have in writing as well. Sworn statements just create opportunities for inconsistencies with a possible later deposition and/or trial testimony that you simply don’t need to risk.

      Other than those two common issues for pro se litigants, I can’t think of any other caveats. Be ready for their first offer to be very low. That’s common — and a reason to make your initial offer way too high. If they don’t start coming into the range of reasonable offers after that first round of negotiation, I’d hire a lawyer at that time.

  26. Andrew says:

    Thank you for your prompt reply! I have spoken with several attorneys that have given me basic numbers estimating what they feel could be won at trial. They range from $250,000.00 to $500,000.00+ (one attorney said it could go to 7 figures. I think he’s full of it) Another factor I didn’t mention is that you can visibly see the deformation of my wrist along with a sizable scar. I also had my 2 young daughters(1 and 3) in the car with me at the time of the wreck. They were uninjured but shaken emotionally. This is going to be a life long injury severely effecting my lifestyle (prior to the wreck I worked out daily, mountain biked, golfed, and as previously mentioned rock climbed) the list goes on. Since the wreck I haven’t been able to do any of that. Given that current medical is $28,000.00 Future medical is $50,000.00 (conservatively), Lost wages are $20,000.00 (Lets split the 40k in half as a worst case scenario). Do you think an initial demand of $600,000.00 is a reasonable starting point? One other point, I live in a very conservative military town. The jury will likely be made up of retired or active duty military. At first glance this is bad, I would get a larger sum from a jury of more liberal oriented folks at a trial. But, I have friends that would be willing to testify to my character and loss of lifestyle who are high ranking officers and combat veterans. My wife is a veteran as well. Should I state that in my demand letter or simply get them to write a separate letter and send it along with the demand. Also, the defendants attorney wants me to meet him at his office so I can give him copies of my medical records. Obviously I wont sign or agree to a recorded statement, but are there any other potential pitfalls that I could encounter in doing this? He says it is to expedite the negotiation process with the insurance company. I’m leaning towards just writing a strong demand letter and emailing him copies of that along with the medical records, police report,etc…Should I CC: the insurance company with the demand letter? Does he have an obligation to show them all of our exchanges or can he pigeon hole information so its more likely he gets a trial out of it? Does he have any incentive for a trial or does he get compensated the same for settling out of court? I know these are a ton of questions but I like to gamble with a full house. Thanks again for all of your help! This site has helped me sleep better already!

    • fl_litig8r says:

      Don’t forget to include future lost wages in your claim, especially if you’re potentially looking at $20,000/yr. That would make a $600,000 demand a lot more palatable. You also need to consider the effect that your future surgery will have on your earnings, so you could claim that the $20,000/yr figure is conservative based on your current condition, which will only worsen over time due to arthritis and a second surgery. While $600,000 seems high for a wrist injury, your initial demand should be high, and if you can justify it through future wage loss it won’t seem totally crazy.

      Your instincts about your local jury pool are spot on. Military jurors tend not to be the most generous folks. Of course, just because you’re in a military town doesn’t guarantee that your jury will have a single military person on it, so I wouldn’t be too discouraged by this fact.

      I wouldn’t really discuss character witnesses in the demand, or submit any letters by them. The insurer really won’t care about that. If one of them wants to write a letter verifying your previously active lifestyle and how the accident has affected you, that might be worthwhile (though not necessary). They could throw in a line or two about your character in there, but I wouldn’t make that the focus. Anyone can get a friend to write a letter about his character, so the insurer won’t give that much, if any, weight.

      There’s no need to meet with the defense attorney just to give him medical records. Clearly, he wants to meet just to get some free discovery out of you — even if he doesn’t record it, there’s no need to subject yourself to his in-person questioning. I see no benefit to you in meeting with him. Don’t let him fool you into thinking that such a meeting would have any beneficial effect on settlement talks. I find it pretty interesting that the insurer has already brought a lawyer into this in the first place — that could be a good sign that they see your case as fairly valuable.

      Ethically, the defense attorney should show the insurer your full demand package and I doubt that he’d hold back information just to mess up a potential settlement. That being said, if you are willing to bear the cost, I see no harm in copying the insurer on your demand. The defense attorney is paid by the hour, so there is a difference in how much he makes if the case settles quickly or drags on forever. However, having done defense work early in my career, I can say that I’ve never seen a defense lawyer purposely obstruct settlement negotiations just to bill more hours. I’m not saying it never happens, but it’s not the norm and I wouldn’t assume that he would. He wants to keep the insurer happy, so if he can negotiate a fair settlement and help them avoid a lawsuit, it’s most likely that he will.

  27. Andrew says:

    Thank you so much! You have helped me a tremendous amount. I’m on my cell phone at the moment but when I get to my PC I’m gong to buy a few $10.00 tips! One more question, given all of the above, what would you consider to be a fair settlement from the at faults insurance pre trial? If they offered $150,000.00 would you advise one of your clients to accept? Thanks again for all of your time and energy on this. I can’t say enough how great this site is and how thankful I am to have run accros it!

    • fl_litig8r says:

      It’s really impossible for me to properly evaluate a case based on information I get online. In your case, a lot would depend on how certain (and convincing) your doctor is about the need for a $50-60,000.00 surgery in the next few years, how that would impact your wage loss claim, and how provable your wage loss claim is. For example, a $20,000/yr loss on a $100,000+/yr business is a lot easier to claim than on a $60,000/yr business. If you were to base your claim solely on the medical bills and wage loss you’ve incurred to date (along with pain, suffering and loss of enjoyment of life), I’d probably say that $150,000 is a really good deal, especially for someone who doesn’t have to pay any attorney’s fees. Once you add in the future surgery and future wage loss, assuming they’re reasonably provable, I would expect more. How much more is tough to say without getting a feel for how strong the “future loss” claims are. Of course, being able to review jury verdict/settlement reporters from your area to see what similar claims are being resolved for would be the best way to evaluate your claim. Unfortunately, most law libraries don’t carry these reporters, so I doubt that this is something you’d be able to do on your own.

      Ultimately, it really comes down to how satisfied you are with the amount you would get after paying off your medical liens. Taking less than you’d get if you hired a lawyer and potentially litigated the claim might be a good trade-off for you if it means a quicker settlement and not owing attorney’s fees.

  28. Andrew says:

    Managed to buy a tip from my phone! Thanks again for all of your work. I will recommend this site to every one I know!

    • fl_litig8r says:

      Well, even though the tip is worthless to you because you don’t have a lawyer, I appreciate the gesture (save it for a friend who might benefit from it in the future). I really don’t expect any compensation for answering questions here, but as a lawyer it is against my nature to reject an offer of free money. 😉 I wish you luck in trying to resolve your case.

  29. Andrew says:

    The tip could still be very valuable if I do seek an attorney. Even without having an attorney it still gave me some insight that could help with my decision to hire a lawyer. Thanks again for all of your advise!!

  30. Dali [last name removed by admin] says:

    Good afternoon and thank you for all your useful information! I only wish I had found your site before I asked for arbitration (California) for an UM claim where the driver struck me and has left me w/ severe whiplash injuries, which I think I will suffer from some degree the rest of my life possibly. My policy limit is 50K and my insurance company has offered 30K of “new money”, (5K of this settlement will go to the medical lien), and flung the CPP998 @ me. Of course I have lots of chart notes, provider visits, images, treatments and physical therapy to throw in the mix. We have done the interrogatories and depo, which were similar to being drug thru a keyhole backwards. I actually had to stop myself from laughing out loud when I was asked about intricately detailed questions about my health and medical providers from 40 years ago. Needless to say many of my response were “I don’t remember” Since I have been threatened w/ the CPP998 do you think 30K is their top offer? They started @ 14K. I would really really like to be done with this process. Again I appreciate the straight language on your site, and have all ready forwarded it to several folks. Thank you again.

    • fl_litig8r says:

      For those who don’t know, a CCP 998 offer is a settlement offer made pursuant to California Code of Civil Procedure §998 (so this discussion only applies to California, though many, if not most, other states have similar rules). The gist of this rule in the case of an offer made by a defendant is that if a plaintiff rejects the offer, and subsequently recovers less than the offered amount at trial or arbitration, the plaintiff (a) is not entitled to recover any costs it incurred from the date of the offer and (b) must pay the defendant’s costs from the date of the offer. Under this rule, “costs” does not include attorney’s fees unless the claim itself is one where attorney’s fees are otherwise awarded to the prevailing party. The plaintiff can also make offers under this rule to the defendant (and the penalty for defendant’s failure to accept is triggered by the plaintiff recover more than the offer at trial or arbitration), but a plaintiff’s offer has less teeth because a plaintiff who makes any recovery at trial or arbitration is already entitled to recover his costs. It appears that the only thing such an offer gives to the plaintiff is an entitlement to recover expert witness fees.

      With all that out of the way, on to your question. . . I can’t say for sure that this is the defendant’s top offer, but strategically speaking, if it has made multiple offers and suddenly decided to make the $30k one a CCP998 offer, I’d think that’s its top offer. If you are considering trying to make a counter-offer, I’d be careful to word it in such a way as to not reject the CCP998 offer. I wouldn’t even use the term “counter-offer”, because that implies a rejection of the prior offer. A safe way to do this would be to ask “Would you be willing to go to [insert dollar figure]?” If they say no, you can still accept the prior offer because you didn’t reject it via your question. Be sure to make your acceptance in writing, because the rule requires that.

      As an aside, and without knowing anything specific about your case or injuries, $30k for a whiplash case with $5k in medical bills sounds pretty damn good.

  31. Dali [last name removed by admin] says:

    Thank you ever so much for your response! It is so refreshing to get some clear language after slogging thru all the codes and legalese. And thank you for the suggestion of the wording. I will make the carefully couched “counter offer” and not reject the CPP998 and be willing to settle w/ the 30 K. I cannot even begin to tell you also, as I am sure many have in the past, how much this communication has meant to me. In “Pro Per” is an experience I will not repeat.

  32. Zach says:

    Some months ago I was rear ended while at a stop light. I missed 2 weeks of work and had tworked trips to the hospital, they excused me from work and told me it was whiplash. I still suffer from ptsd. The insurance adjuster has offered me my lost wages and $200, seems like a low ball offer, right? I’m a little lost as to how much to ask for but I’ve been told from multiple people that 200 is too low. I’m in Oregon if that matters.
    Any guidance would be much appreciated!

    • fl_litig8r says:

      Given the fact that Oregon isn’t a no-fault state (it mandates PIP coverage, but doesn’t preclude plaintiffs from suing at-fault drivers for pain and suffering damages unless they meet a “permanent injury” or dollar amount threshold, like true no-fault states), I’d say that the offer sounds low. Because you are free to recover pain and suffering damages from the at-fault driver without having to prove a permanent injury or meet any other no-fault threshold, $200 would seem low for any Oregon auto accident case with an injury. While I can’t say how much your claim is really worth (and whiplash cases typically aren’t high value cases) because that depends on issues specific to your case, I can say with confidence that the insurer is easily at risk for more than $200 for your pain and suffering damages if you choose to sue their insured. Their defense costs alone would greatly exceed that, so they aren’t even offering you “nuisance value” at this point.

      Think of it this way: if you choose to sue the at-fault driver on your own in small claims court (you’d have to specifically limit your damages to the small claims jurisdictional amount to keep it there), how much would the insurer have to pay to defend that case, even if it winds up winning and you recover nothing? I can guarantee that it would be more than your lost wages plus $200.

      In short, you’re right that this is definitely a lowball offer.

      • Beatrice says:

        If Zach is referring to making claims to his insurance company and he has not agreed to close his medical (MMI), the PIP should cover lost wages and all medical expenses related to the accident, including PTSD.

        As I mentioned in earlier comments asking for your help; I used EMDR and was relieved of the emotional difficulties resulting from my accid…I mean crash after three sessions. This made me happy because I was no longer suffering without extensive therapy, and it made my insurance company happy because it was short and sweet (i.e., relatively cheap)

        Also, Oregon law 20.080 is designed for PI victims in cases where damages are less than $10K who need to sue without an attorney.

        If I am butting in and not helping, feel free to delete me.

        • fl_litig8r says:

          I’m pretty sure Zach was asking about an offer from the defendant’s liability insurer, not his own insurer. I left your post up because it contains information that might be helpful to others, though.

  33. nikki says:

    I submitted my demand letter and haven’t heard back from the insurance company yet (there is still about a week left of the 30 days given to them to respond). At any point within the last week should I attempt to reach out to them or am I better off letting the time run out? The amount I’m asking for is mostlikely much less than the insured’s policy limits so I don’t know how much a bad faith claim would play into this.

    I have a signature as proof of delivery so I know they received it.

    Thank you for your help

    • fl_litig8r says:

      I’d wait until the time runs out before reaching out to them. I see no benefit to contacting them sooner. You know they got the demand. If they want to settle, they’ll get back to you. A bad faith case may still come into play if the insurer fails to accept your offer and you subsequently go on to get a judgment that exceeds its policy limits. Even though your offer is likely less than its policy limits, a jury on a bad faith case may find that your case was worth far more, that you undervalued your case in your demand, and that the insurer, who is more sophisticated in evaluating cases than a pro se litigant, should have known it was being offered a great deal, acted in bad faith by not accepting it.

      If you want to contact them, wait until the 30 days runs out first. It won’t make any difference in your odds of settling, but it may save any bad faith case you might have.

      • nikki says:

        I just received a response from the insurance company. They didn’t acknowledge my demand and simply sent what seems to be a very generic response asking me to fill out forms to release my medical records. Is there any issue or anything I need to keep in mind when doing this? Please note that they already have all the bills that my health insurance gave to me related to my treatment.
        Thanks again for your time.

        • fl_litig8r says:

          Because you’re pro se, it’s to be expected that they’d ask for medical releases because they don’t trust you to send them everything. Give them the releases they want. Make sure that they are each for a single medical provider (no blank releases for them to fill this in or blanket releases for any providers) and alter their language to state that the release is to be good for only a single use (usually they are only limited by an expiration date set in the release). You want to make it so that if they make multiple requests to the same provider, they need to come to you each time and get a release. This way they can’t request records without you knowing about it.

          The letter you got may have been one that is automatically sent in response to a demand, so assume they got the demand. If you didn’t get your own medical records yet (if you only got the bills), I’d request all of them yourself before they get the chance to. Just send your request before you send them back their releases. You don’t want to be surprised.

  34. beatrice says:

    When I send my demand letter, what should I include:
    Should I send copies of pictures of the crash scene?
    Should I send copies of the PIP, or just give the adjuster permission to see the PIP?
    If I send the PIP, is the schedule adequate?
    I have a copy of the PIP schedule, and I have the complete PIP file. The file is a ream or two..

    I received requests from them regarding releasing PIP information to them, but ignored them since the request letter had a note in big, bold, capital letters saying signing it was voluntary.

    • fl_litig8r says:

      1. Yes, send pictures of the crash scene (assuming they’re helpful to you).
      2. With respect to the PIP, I would just send the PIP log for now to show them how much PIP has paid (and if it’s exhausted). If they come back asking for more information about your PIP, you can decide then whether you want to give it to them. I wouldn’t give them a blanket release to get the information directly from your PIP insurer.

      P.S. Thanks for your other private post. I’ll give it some thought.

      • beatrice says:

        I have received the same USPS certified return receipt letter two times requesting that I check one of 4 choices:
        1 – I’m going to planning to make a demand.
        2 – or not.
        3 – I forget the 3rd choice.
        and 4 – other.
        Both have had deadlines, the 1st was 12-1-2014 and the 2nd 12-12-2014.
        They want it signed and dated.
        The letters open with the adjuster saying she has been unable to contact me. I have spoken to the adjuster (hereinafter referred to as Persephone) on the phone and given her my email for future correspondence. A while ago, I asked the rep from my side (PIP chick) for Persephone’s address, she replied with the address and said she was copying her.
        On the USPS letters there is also a note (big, bold, capital letters) stating that the law allows two years from the date of the accident to make a demand.
        I am ignoring Persie’s letters.
        I assume that she is being pushed to close my file before the end of the year?
        Is it likely that I am antagonizing them?
        If so, should I be concerned at their antagony 🙂 nice word…
        It is irritating to have to go to the P.O. only to find the same letter and I do not care to unnecessarily sign anything. Can I get pain and suffering for that? How about time and gas money for going to the P.O.?
        Thanks – again. I think this is all and enough. You are probably glad of that.

        • fl_litig8r says:

          It sounds like Persie’s just blindly following some internal procedure that would allow her to close her file on your claim if she gets a certain response (or no response). As long as you’re within the statute of limitations, you can still make a demand. You’re not beholden to the insurer’s unilaterally-imposed timetable. If they close your file and receive your demand afterward, they’ll just re-open it. I doubt that you’re antagonizing them at this point. I’m sure lots of people ignore their “what are you planning to do” letters and just submit their demands when they are ready.

          • Beatrice says:

            Dear Flit,
            It took a while, but I finally screwed up enough courage to send my demand letter and I enclosed the PIP schedule.
            To review: Oregon 20.080 allows PI victims to sue for up to $10K. If there is no response within 30 days, the defendant may have to pay all legal fees along with the settlement. (I demanded $10K; medical totalled almost $11K and I suffered with PTSD for months before I figured it out and went to a psychologist for treatment).
            I sent the demand letter to Persephone, the queen of the underworld, I mean the insurance adjuster and to the guy who caused the crash via USPS certified mail/return receipt January 28.
            I received a voice mail from ‘Persephone’ this morning (February 4) saying the enclosed PIP schedule was not enough. She wants the medical release signed and returned. She stated that she will email the release and wait for it to be signed and returned. Her reason was she needed to see the diagnosis, etc.
            To quote one source on the law: “According to the statute, all necessary documentation should be provided at the time the demand letter is sent to the at fault party and the insurance company.”

            A) Does her response constitute a reply to my demand within 30 days of receipt? The way I understood the law was that the response needs to relate to a settlement.
            B) If she does have a right to the medical release, does that delay the 30 days to respond since she did not receive all the docs? In which case should I send it CMRR to be sure of the re-set date?
            C) Also, does not having included the necessary docs affect the validity of my demand?
            D) Is it advisable to communicate with her via email?
            E) Via phone? Esp. since cell phones sometimes cut out and the conversation could be misinterpreted…

            The guy who caused the crash has the same insurance company as I.

            I have the complete PIP record that is about 700 pages. Would it be appropriate to send that in lieu of the release? 🙂

            FYI, last year when I received repeated requests to sign and return the medical release, I spoke with an attorney. She said the insurance company does not need a signed release; permission to view the PIP should be sufficient. I suggested including a copy of the PIP schedule and she said that should be sufficient.

            That is all. I think. For now…


          • fl_litig8r says:

            You’re asking something that is too specific to Oregon law for me to answer with any certainty. In a bad faith context, when you make a policy limits demand to a liability insurer, it acts in bad faith if it fails to pay when, from the information provided, a reasonable person would have. The question of whether the information provided was sufficient to show that it should have paid its limits is going to be fact-specific to each case. Oregon’s ORS §20.080 seems to apply a similar standard to its attorney fee penalty for not paying a claim for $10,000 or less, as evidenced by what it requires to be contained in a written demand (subsection 3 of the statute).

            In short, the issue is whether the PIP records you sent would “reasonably inform” the insurer that your claim was worth what you demanded. That hinges on what was contained in the PIP records, so I can’t say whether you’ve given them enough information or if they need the medical records, too. Because the teeth of ORS §20.080 lies in its attorney fee award, you really should consult an Oregon attorney about whether your demand was sufficient as it was. If it was, you’ll need to hire an attorney to take advantage of the statute anyway. If it wasn’t, you didn’t lose anything by consulting an attorney — you can just supplement your demand with medical records and bills that more clearly show the value of your claim and start the 30 day clock over again.

            While I didn’t go letter-by-letter addressing your questions, I hope this explanation clears things up. As to your question about how to communicate with the adjuster, anything in writing is best. I see no problem with using e-mail over conventional mail with your current communications.

  35. Nick says:

    Can a parent in CA settle their 12 year old child’s minor personal injury claim for $10,000 or less without court intervention?

    • fl_litig8r says:

      I’m not a CA lawyer, but it appears that the answer is no. Rather than reinventing the wheel, I’ll just refer you to this 2012 article (pdf warning) written by a California lawyer that does a great job explaining the process.

      Know that it appears that all of the risk of not following the process lies with the defendant, as a settlement with a minor that doesn’t follow the proper procedure can be voided at will by the minor’s guardian, but not by the defendant. I would think that because of this, the defendant would be willing to do the heavy lifting regarding preparing the Minor’s Compromise forms for filing with the court.

  36. Nick says:

    Thanks. Yes; all articles and references I have seen concern claims/complaints that are filed with the court. I suppose the safest way to go is the filing of a petition for a minor’s compromise under an expedited hearing process.

    • fl_litig8r says:

      The article I linked to discusses parents settling their children’s claims prior to suit being filed, so I hope it helps you resolve this. As I suggested, you may want to see if the defendant will do the heavy lifting in prepping the paperwork — they have as much to lose, if not more, than you if this procedure is not done properly.

  37. Nick says:

    Good day, and Merry Christmas. Thank you for your site, and your very helpful advice.

    I was involved in a collision in Georgia in which the at-fault driver pulled in front of me while turning left across an intersection. She was cited for failure to yield, yet claimed that she was unable to see my vehicle because my “headlights weren’t on.” (My headlights were on, as they are wired to come on with the ignition.

    Her insurance company has taken 20 days since the collision, and has yet to contact the witness listed on the report, which seems a little too long for me. Meanwhile, I am driving a vehicle that is not street-legal, and her insurance company refuses to pay for a rental for me.

    I have obtained an estimate for my car, which came to roughly $2,000. Her insurance says my car is a total loss, which I dispute. My car runs just fine, and could be made street-legal (with the damage) for about $100. I did tell her insurance company I would gladly give up my car if they delivered the same year, make, and model vehicle with the same mileage to my door, as long as it was in the same condition as mine was before the collision. The adjuster hung up on me.

    I’m frustrated at this point, and want my car fixed. Before calling her insurance company, I spoke with her and offered to settle for $1,200, which she refused. At this point, do I:

    1.) Send a demand letter to her insurance company,
    2.) Send a demand letter to her, then sue her when she fails to reply,
    3.) Do something else completely?

    Can I abandon my claim with her insurance company and file a suit against her? Or could I just file a suit against her insurance company? Georgia allows attorneys in small-claims court, and I am well within the limits of the courts. I would be litigating this myself, as I’m not going to pay an attorney $1,000 to win $1,000. I am concerned that her insurance company would provide her with an attorney in small claims court, making my case harder to win.

    Thanks again for your advice

    • fl_litig8r says:

      If her insurer says that your car is a total loss, what value are they offering to pay for that loss? Whatever it is, I can’t imagine they wouldn’t be willing to offer a little less if you don’t want to surrender the vehicle and title. You shouldn’t be negotiating directly with the driver. She’s not going to pay you anything out of her pocket. She has insurance. She’s going to let them call the shots, as she should. If you sue her, you’re not abandoning the claim against the insurer because any judgment you may get against her will be paid by the insurer — and yes, they will hire an attorney for her if you sue her in small claims court.

      Yo should take another shot at negotiating with the insurer. I don’t know that this type of claim really warrants a demand letter, as that will probably just make things move more slowly. This time when you speak with them, refrain from dramatic but useless references to them providing you with the same exact car as the one you lost. If your car is a total loss, they have to pay whatever the value of the car was at the time of the accident. If it isn’t a total loss, they have to pay the cost of repair (assuming that doesn’t exceed the total value of the car). Because you’re talking about $1,200-$2,000, they’re not looking to spend a whole lot of time on this. You should be able to resolve it without having to file suit. Find out what they’re actually willing to pay and then decide whether it’s worth the extra time and effort to sue her in small claims court over the difference in your valuations (and at the amounts you’re talking, I doubt it will be).

  38. ron says:

    Good day to you
    I will be attempting soon a negotiation with the at vault driver insurance adjuster who’s client has admitted 100% liability.

    I’m self employed, assuming my 1040 schedule C profit and loss form is used to provide proof of business income.

    What information should I allow for them to see and/or what information can I delete? The reason for this question is I’m not comfortable with insurance adjusters having access to all 7 pages of my taxes. Also,

    In the last 5 months I have had 30 scheduled appointments with DR’s, MRI’s, PT sessions, IME exams, ER and urgent care visits. How would I calculate these days into Loss of earnings? also,

    I’m from Central NY, medical bills are being paid from my PIP coverage. To date, I have $8000 in medical bills, a torn medicus with my right knee and a torn left shoulder rotater cuff that my ortho Dr. has recommended I will need future surgery plus a re-aggrevation of my C-spine from a previous accident from 2007 that is still being treated.

    The at fault driver has minium $25,000 and I have $100,000 in under-insured policy limits.
    Should I send a demand letter asking the adjuster to tender the policy limits?

    Thank you in advance with any assistance you could provide.

    • fl_litig8r says:

      With $8,000 in past medicals and a recommendation for future surgery, I see no reason not to just demand policy limits from the at-fault driver’s insurer. That’s not to say that your case is definitely worth that much (New York’s collateral source rule would prevent you from recovering the amounts paid by PIP from the at-fault driver), but I see no benefit in making an initial demand for less than policy limits.

      As far as proving lost income for a self-employed person, this is a huge pain in the ass and there is no clear and easy way to do it (as an aside, it always surprises me how many clients of mine are self-employed — it seems the self-employed are more accident prone). The bottom line is you have to figure out what information is reasonably necessary to prove your claimed lost income, and you need to come up with your own method of figuring out how much you lost by not being at work. It’s going to vary from business to business and you really need to play it by ear. For example, as a lawyer, if I miss 5 days at work due to an injury, how much has that cost me? It’s really hard to say, as I don’t bill hourly and the most likely detriment to my income from missed time would be not being available to talk to potential new clients. So, who’s to say what new clients I lost or what their cases were worth? Would it be fair for me to just take my income from the prior year, figure out a daily rate and apply that? What if my income varies widely from year to year based on the quality of cases that come through my door? As you can see, figuring out a method for calculating lost income for the self-employed is quite a chore, but you need to do that first before you can figure out what information you need to provide to prove the lost income based on your method of calculation.

      Of course, the insurer can always reject your method of calculation and demand more information because it has its own ideas as to how your lost income should be determined, making this an even bigger mess. You really just need to play it by ear and come up with some reasonable means of calculating your own lost earnings based on how your business operates. There’s no one-size-fits-all method for the self-employed, which is why we are such a pain in the ass for personal injury lawyers when it comes to wage loss.

  39. ron says:

    How does New York’s collateral source rule factor in to settlement amounts?

  40. ron says:

    No need to reply to last question, I looked it up and understand.

  41. Michael says:

    I am trying to determine if it is better to file a claim directly with an insurance company or work with an attorney. I had an initial consult with an attorney and he felt there would be trouble proving liability. The situation (In Mass), my wife was rear ended by someone as she exited interstate and drove under the overpass. My wife had slowed due to falling debris from overpass (since repaired by DOT), and other driver did not slow down. There were no tickets issued. My wife was injured, and next day due to pain she was transported via ambulance to ER. Diagnosis compression burst fracture in T3 spine. She has since seen orth doc (stable and no surgery required) and pain mgmt. She has had work from home, and has been offered temp disability if she wants its….about $3k in car damages, and other unintended consequences….having to sleep upright on couch for first 4-5 weeks, pain meds, etc. I though we might have reason for a case and looking for a second opinion…

    • fl_litig8r says:

      I think this case really needs a lawyer’s attention. First, the fact that no one was ticketed in a rear-end collision kind of confirms the consulting lawyer’s opinion that it may be difficult to prove liability against the other driver. That’s not to say that it isn’t possible, but I would expect the other driver’s insurer to be reluctant to pay anything without the genuine threat of a lawsuit (or an actual lawsuit, which is more likely) which comes with having a lawyer. Second, your wife may have a negligence claim against the state for the falling debris. Claims against the government usually have pre-suit notice requirements and some states have very short deadlines for this. There may also be a cap on the damages available (for example, in Florida these claims are limited to $200,000 per claimant).

      I think this case is a bit too complicated for someone to handle without a lawyer.

  42. SIMONE says:

    So i was in a car accident, i had the right away going through an intersection and the at fault driver had a flashing yield. in the police report he admits he was drinking and didnt see me. He also left the scene but the officers found him. He had insurance. i have back,hip,shoulder and neck pain. My front tooth was chipped bc i hit my face on the wheel. my mouth is killing me now and my other tooth is loose. I already had ptsd from driving bc i was in a car accident where my friend lost his leg saving me and this has worsen my symptoms . i can barley pick up my baby or sleep comfortably bc of my back pains/stress. it feels like my back is to weak to hold my body. I have missed a day and a half of work but i have to work to pay my bills and car note still on my totaled car. I have rented a car for two weeks out of my pocket. My car is totaled and i owe 14grand on it. im stressed and depressed bc i had to miss my daughters birthday bc of this and im in the process of moving and i have 60 days to do so but all this has put a halt to my house hunting….i dont know what to tell them . i understand calculating my medical bills/therapy/dentist bills . I did an initial call to them giving them the specifics and they asked do i have a ballpark range of the settlement amt. but do i tell them i need my car paid off and what else do i ask for. my kids carseats where in the car and i know they shouldnt be used. I have a lawyer but i feel they are not proactive enough, i dont have alot of money to keep renting a car and paying a note until my physical therapy is done and the adjuster said they will call me in a day or two. I dont know what to tell the adjuster. i will call my lawyer but i think they are bullshitting i wish i didnt sign a contract bc i feel ill be doing the legwork.thanks for your advice.

    and another question i talked to my lawyers case manger today and they told me i could go ahead and settle with the insurance company about the car damages they just handle my personal injury …soooo does that include pain and suffering ….

    • fl_litig8r says:

      You should listen to your lawyer and just handle the property damage claim on your own. Let your lawyer handle the bodily injury claim, which will include any pain and suffering if it’s available (this depends on what state you’re in — some are no-fault and require a permanent injury to allow a plaintiff to recover pain and suffering). It sounds like your accident happened fairly recently, so I think you’re way off-base to think that your lawyer isn’t being proactive enough. As I say in this series of articles and others, a plaintiff should really wait until she’s at maximum medical improvement (MMI) before trying to settle a bodily injury claim. Being impatient and expecting a quick settlement before you’ve reached MMI will wind up costing you in the long run. Let your lawyer do his job. The “legwork” that you’re doing now for your bodily injury claim isn’t helping anyone. Stick to the property damage claim.

  43. Lauren says:

    First, I’d like to reiterate the sentiments others and express my gratitude for your thoughtful comments on this website. I have a couple questions as it relates to settling a car accident claim in California.

    I was driving straight and the other driver, who was at a stop sign, made a left hand turn in front of me. Establishing his fault was not an issue. When initially giving my statement to my insurance company a few days after the crash, I told them I was injured and seeking medical attention. This must have been conveyed to the other driver’s adjuster (whom I’ve never spoken to) because I’ve received numerous correspondences from her asking for medical releases, etc. I have not intention of speaking with her before I send the demand letter.

    I am still in treatment, so not ready to write a demand letter yet, but I am doing some preparations for it. I was wondering if it would be appropriate for me to request a copy of the recorded interview I had with my insurance adjuster. Was the other party’s adjuster automatically privy to that recording? I know that if this gets brought to trial (or arbitration if it ends up being pursued under a UIM claim), they might try to use something I said in that interview as part of their defense and I’d like to be as prepared as possible. I’d also like to know when/if it was appropriate to ask what the policy limits for the other party are. Or should I just make a demand without this information?

    Thanks for any help you can give!

    • fl_litig8r says:

      It’s certainly appropriate to ask for a copy of your recorded statement. In fact, in my state (Florida), adjusters are legally obligated to provide copies of recorded statements to the people who give them. I couldn’t find whether this is a legal requirement in California, but it may be. It certainly is appropriate to ask for it either way. The other party’s adjuster likely won’t get a copy of your statement automatically sent to them. It may be discoverable during litigation, but generally your own insurer doesn’t sell you out to an at-fault party’s insurer. I also doubt if the at-fault party’s insurer first heard about your potential claim from your insurer. Their own insured likely reported the accident to them and they pursued it from there.

      You can request the defendant’s liability insurance limit information at any time. Of course, it being California, they don’t have to tell you, in which case you just demand what you think your case is worth (inflated of course in your initial demand in anticipation of bargaining). I have little experience with blind negotiations like this, because in Florida liability insurers are legally required to tell us their limits.

  44. Lauren says:

    Thanks for your reply! I can only assume my insurance adjuster told the other adjuster because me and the other party in the car accident have the same insurance company. We called to report the accident immediately after it happened and I wasn’t in pain then – I was actually hyped up from all of the excitement. I didn’t have issues until a couple hours later. I told my insurance adjuster I was injured when I talked to her two days later. Despite the fact I think my adjuster told her colleague what I said in my statement, I doubt there’s really anything I can do about it – am I correct?

    One question I forgot to ask in my previous post was since in California the statue of limitations is 2 years, at what point should I start negotiations even if I’m not at MMI? Would about 1-1/2 years (giving six months for negotiations before potentially filing suit) be reasonable? I’m no where near this point in my situation, but just something I was curious about.


    • fl_litig8r says:

      You’re right that there’s nothing you can do if your adjuster told the other adjuster about the accident. In fact, it’s kind of helpful when the defendant’s insurer is notified by any means, because failure of the defendant to notify his insurer of the potential claim can jeopardize the coverage. That coverage defense is a pretty tough sell when the insurer already learned of the claim through other means.

      Leaving 6 months to try to settle sounds reasonable, but don’t leave it to the last minute to try to find a lawyer if negotiations don’t appear to be going well. You’ll want to leave a lawyer plenty of time to gather the records he needs and file suit if it looks like it will be needed, so I’d hire one at least 3 months out from the statute running. The more time he or she has, the better.

  45. Karin says:

    I made a demand using Oregon law 20.080 for the maximum allowed $10,000.

    The adjuster replied with an offer of $4000 without an explanation.
    A few days later, while I was researching how make a convincing argument to persuade her that I believe the $10,000 is very reasonable, I received her second offer of $6500.
    (I learned a long time ago that when negotiating for a car, silence is the best tactic, but I was not doing that in this case.)
    She noted in her email that this is their last best and final offer. She stated that they agree to ‘resolve and satisfy the PIP subrogation lien’ on my insurer’s claim.
    I want to be fair. On the other hand, this is kind of fun. Should I accept that this is last, best and final; or perhaps ask if she could go a little higher. Since she has not given any reason I would just be reiterating the reasoning of my demand letter.

    The Release: Are the releases relatively standard? I read it and it looks…legal. 😛 I could not see anything that appeared to me to be outside the parameters of the claim. Should I be skeptical?

    Payment: Her email says ‘upon receipt of the release, payment will be issued.’ Can I assume I will receive the payment within a week or so (something reasonable)?

    I read somewhere – probably on this site – that insurance payments are not taxable. Am I correct?

    • fl_litig8r says:

      For those not familiar with the Oregon statute you cite, it allows (in cases where the damages pled are $10,000 or less) the plaintiff to make a pre-suit settlement demand to the defendant which entitles the plaintiff to recover attorney’s fees if she wins her case and the defendant had not responded to her demand with a settlement offer equal to or greater than the amount she ultimately recovered via a judgment (*whew*).

      In your case, I suspect that someone at the insurer got cold feet about the first offer they made you in light of the risk of attorney’s fees, so they took a closer look at your case and reevaluated their offer. Usually silence doesn’t produce a new offer in settlement negotiations, so I wouldn’t bet on it happening again. I see no harm in trying to squeeze a little more money out of them. I seriously doubt that they’d withdraw their offer, so realistically the worst that could happen is they could say no and you could still accept their last offer. If you phrase your counter in the form of a question, e.g. “Would you be willing to go to $7,000?”, that’s technically not a counter-offer so it’s not a rejection of their prior offer. If you’re a particularly worrisome type, you could go that route, which is best done over the phone rather than by letter, due to the informal nature of the phrasing.

      Insurers’ releases are usually pretty standard. Unless you have multiple possible claims, like against another tortfeasor or a UIM insurer, they’re usually o.k. to sign as is. They’re more likely to inadvertently contain something that would screw up another claim you may have than they are to have intentionally malicious language hidden in them. If you have other claims, usually the insurer is willing to alter or add language to be clear that you are preserving those claims.

      As far as payment, typically I’d expect it within 30 days of the release being returned to them. It may be shorter, but 7 days is a bit optimistic.

      Settlements for personal injury claims are not currently taxed, so you’re partly correct.

      • Karin says:

        Partly? Meaning I did not read it here?

        I enjoy reading your posts and comments. Your replies reveal the logic of the law and your demeanor encourages us to be respectful. I hope that those in your profession appreciate that you are representing attorneys in a very positive light.

        Is the avatar you or your alter-ego. Too small be recognizable – to me.

        • fl_litig8r says:

          It’s “partly” because you framed the issue as “insurance payments” not being taxable. This is true in personal injury cases, but not in others, such as certain long term disability insurance benefits. You know us lawyers — sticklers for phrasing.

          As for the avatar. . . I’ll never tell.

  46. Charles says:

    Hello. My wife and I were passengers in a car which was rear-ended while stopped at a red light. I had one rotator cuff surgery (signed a surgical lien, don’t have health ins), but need surgery on my left shoulder (confirmed through MRI) and possibly hip as well. I am 41 and had no prior injuries, though I did find out I had some degenerative changes in my hip joint which likely predate the accident and which the accident exacerbated. My current medical expenses are around $40k – first surgery was three weeks ago. I had to quit my high-travel job since I couldn’t sit on long flights or load and set-up convention materials. I have not been able to go back to work, but have started an app-based business which produces residual income – in total, I make about $3k less/mo. than before I quit. My docs estimate each surgery has a 6 month rehab and PT period, but the two shoulder surgeries could start 6 weeks apart.

    My wife was also injured, but not to as great a degree. She saw a chiropractor, pain clinic and had an MRI which showed she did not need surgery. She is currently doing some PT and a bit of chiro to complete her recovery. Her total bills are about $7k with around $2-3k more when PT is finished. She also had to quit her job for the same reasons – we worked for the same company and both traveled a lot. She was out of a job for 3 months (at $5200.00/mo) and now works as an executive in franchise sales making $2k less per month, but doesn’t have to travel.

    She is having to do everything for our family right now – work and take care of home life and me during my recovery(s) – even though she still has migraines from her neck and shoulder injuries.

    The at-fault driver’s insurance is $25k each/$65k total. They have agreed to pay that max $25k to me, plus $20k to my wife (the driver of our car also will get $20k). They said they wouldn’t normally have offered $20k on my wife’s claim, but since it would have been close, they’re just paying out the whole policy.

    My question is about the underinsured coverage of the driver of the car we were in. It is $50k per person, $100k per accident. I think they will probably pay out the max to me of $50k due to my bills and inability to work, but that will only barely cover my actual medical bills with nothing left over for pain and suffering. I want to try to get the biggest settlement possible for my wife as well, since that’s the money we’d have to use to live on. Her claim isn’t as strong since she only suffered what you call soft tissue injuries, but her life has been turned upside down between her own injuries and having to help me deal with mine.

    I checked into Utah law – it seems like the policy amounts are added here (for a total of $75k), not $50k minus the $25k paid by the first carrier. I want to ask for the full $50k for myself and my wife. What do you think the chances are they’ll pay? Is there anything I can do to enhance my chances?

    By the way, I made sure they know we’d present very well to a jury. We have four kids – two of whom are on a jr. olympic development team and require almost daily trips to their training gym and frequent trips to in and out-of-state tournaments. Without me helping, my wife is truly running ragged.

    Thank you.

    • fl_litig8r says:

      I can’t say what your odds are of getting the full UIM tendered without litigation. Some of it will depend on the luck of the draw with the adjuster you get. For your claim, I’d emphasize the medicals, because they are going to be less easy to dispute than the wage loss (it’s not too hard to argue that someone isn’t maximizing their income). If you’re at $40k already with another surgery in the near future, it’s not too hard to claim that on medicals and pain and suffering alone that your claim exceeds their limits. Add lost wages even if you aren’t maximizing your income and that should scare them enough.

      Your wife’s claim will be a much harder sell, and will likely boil down to whether the policy treats loss of consortium claims as part of the injured spouse’s bodily injury limit. Here’s a short article I found which discusses this issue under Utah law. The damages she claims from having to run herself ragged stem from your injuries, not hers, which is why this would be a loss of consortium claim. She has her own individual claim as well, but it wouldn’t include the burdens she’s had to assume because of your injuries. Because under Utah law, policy language can affect whether loss of consortium claims fall under the injured spouse’s bodily injury limit, this will come down to what the specific UIM policy says. Without being able to make her loss of consortium claim outside your “per person” limits, I’d say the odds of her getting much from the UIM carrier are poor. At worst, it should make the full limits payout on your per person limit more certain.

      • Charles says:

        Thank you very much for your input and for finding that article. I’m not sure why you do this for free, but I’m really happy you do! Thank you.

  47. inga says:

    Hello, I was involved in an accident where the other party was at fault. Their insurance adjuster accepted liability. I had my baby in the car and my husband. Both my husband and I have horrible neck and back pain, which we are getting treatment for. The adjuster has been very hard to deal with. He offered a low ball settlement of $500 for my husband and I and $100 for my baby. I think this is ridiculous. The accident caused me to go in a complete panic attack because I had my baby in the car. It seems like the adjuster is dragging settling the bodily injury claim. I get a call every few weeks to see how I’m doing. Is this common? My PIP coverage is paying for our chiropractic claims. I’d like to get this settled quickly. Should I send a demand letter even though an initial settlement offer has been made (which I declined right away). I have not given the adjuster my demand settlement amount.

    • fl_litig8r says:

      If you’re in a no-fault state, you may not be entitled to recover non-economic damages (pain and suffering and emotional distress), as most no-fault states require a permanent or severe injury (their language varies) to qualify for those damages. You’ve only mentioned pain and chiropractic treatment, so it sounds like you’d have a fight on your hands if you need to prove a permanent injury — one that you’re unlikely to win without a lawyer. This may explain the low offers from the liability insurer, as it may only be offering amounts that cover what it anticipates to be the amount that PIP won’t pay for your economic damages (medical and wage loss).

      Before sending a demand, you should first check to see if you need to meet a “permanent/severe injury” threshold in your state to recover non-economic damages. If you do, you’ll need your chiro (or doctor) to back up your claim that you meet this threshold. Otherwise, you won’t be able to recover anything for pain and suffering and emotional distress.

  48. Carlene says:

    I have a slip and fall case whereas I fell down steps at a neighbor’s house. The accident report report states I had a glass of wine. Should I address this in my demand letter or will it sound like I’m making excuses? The glass of wine had no impact as to why I tripped on an object and slid down the stairs. My medical expenses are $100,000. Should I address that it was not actually a full glass of wine, only a couple sips and that I had the wine with a meal or just ignore?

    • fl_litig8r says:

      I think it would probably be better to mention the wine and the reasons why it shouldn’t be a consideration. I’m sure the insurer saw it mentioned, so it will come up — better for you to get in front of it than look like you’re hiding it. I’m assuming you didn’t have a blood alcohol level taken as part of your treatment, so proving how much you had to drink will depend on your own testimony and that of any witnesses. If this incident happened relatively soon after your arrival at your friend’s house, such that you wouldn’t have had time to drink a significant amount (assuming you didn’t arrive drunk), that might help sway the adjuster as well. It’s a lot more believable that you didn’t have that much to drink if the fall occurred in “hour one” of the visit versus “hour four”.

      Of course, even assuming you were totally drunk, that would only serve to reduce their liability if they can show that the intoxication contributed to the fall. If a sober person would have tripped over the offending object, you can still argue that they are 100% liable. It’s just easier to have the “I wasn’t drunk” argument as your initial line of defense, and the “it didn’t matter if I was drunk, anyway” argument as a fallback.

  49. inga says:

    Thank you for your response, I’m in Washington, which I believe is not a no fault state…Im allowed to collect pip from my insurance and collect pain and suffering from the other insurance. Do you have any suggestions for my original question? I would think insurance companies would want to settle quickly. Thank you so much!

    • fl_litig8r says:

      You are lucky, as Washington is indeed a “fault” state, meaning you don’t need to meet any injury threshold to recover non-economic damages. Knowing that, it appears that the insurer is just seeing what it can get away with by offering you so little. I think your original plan of sending a demand letter will let them know that they’re dealing with a savvy plaintiff, and not someone likely to take their token offer. I suggest waiting until you reach MMI before sending the demand, but it seems that you want to resolve this quickly and it doesn’t sound as though the injuries involved are particularly complicated, so it may be o.k. to send it out early. Hopefully, they will offer a more reasonable amount after they see that they’re dealing with someone who did her homework. If not, you should probably start talking to lawyers.

      • Inga says:

        I sent the demand letter in the demand letter I gave the insurance 30 days to make a decision. It’s been almost 40 days. Two weeks ago I called and left a message for the adjuster, no call back. I called again a week ago and still no call back. It feels like they’re ignoring my calls. What should my next step be? I was hoping to settle this pretty quickly, but can’t if they ignore the demand letter and my calls.

        • fl_litig8r says:

          The next step is one of two things: (1) wait longer or (2) file suit. The downside of trying to settle on your own is that insurers don’t face the imminent threat of a lawsuit that they face when an attorney is involved. If you choose to sue, I’d try to retain a lawyer to do that for you.

  50. BCCC says:

    I have worked for 30 years outside my home; however, a month before my accident I was let go from my employer. With a broken right leg and unable to drive, can I add loss of opportunity to look for a job, (for example four to six months for my recovery time) in my demand letter and base it upon my last wages? I am still going to physical therapy for recovery.

    • fl_litig8r says:

      You can seek the lost wages, but whether it’s reasonable to base them on your prior salary depends on what you could reasonably expect to be paid at a new job. Plenty of people who are laid off after working a long time for a particular company aren’t able to find a new job that pays them what they used to make (mostly because a good part of their prior wage was based on tenure with that particular company). Expect the insurer to dispute the amount of time it would have taken to find a new job, as well as what you would have earned from that new job. I doubt that they’ll use your old income as their benchmark.

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