When a Defendant Admits Fault, That’s Only Half the Battle

Defendant Admits LiabilityDon’t start celebrating a victory in your personal injury case just because the defendant admitted being at fault (admitted liability, in legalese) for your accident. Plenty of “admitted liability” cases still go to litigation, or even to trial. This is because proving fault is only half of your burden in a standard negligence case. While it’s definitely a positive to not have to prove half of your case, it does not mean that the defendant has agreed to pay you everything you think you deserve.

When a Defendant Admits Liability, It Has Only Conceded Two of the Four Elements of a Negligence Case

As any first-year law student can tell you, a standard negligence case consists of four elements:

  • Duty,
  • Breach,
  • Causation, and
  • Damages.

In most personal injury cases, “Duty” is not a hard-fought issue. Generally speaking, it refers to everyone’s responsibility to use “due care” to not put others at risk of injury. So, a driver has a duty to maintain a proper lookout for pedestrians and other vehicles, and to operate his vehicle in a safe manner. A store owner has a duty to maintain a safe premises, including cleaning up spills in a timely manner (or warning of a wet floor) and stocking merchandise so that it doesn’t fall on customers. Most duties arise from common law (and common sense), though some may be the result of a specific statute, regulation or ordinance.

Once a duty is determined, a “breach” of that duty must occur. Examples would be a driver who gets distracted and rear-ends someone, or a store owner who allows a spill to sit for hours until someone slips on it. If a defendant disputes liability, most often it will be a dispute that he breached a duty (e.g., “I had the green light”) and not a dispute that a duty existed at all. When a defendant admits liability, he is admitting that he both had a duty and breached it. This still leaves the plaintiff to prove the remaining two elements of negligence: causation and damages.

Admitting Liability is Not the Same as Admitting Causation

Causation can refer to either (1) the cause of an accident or (2) the cause of an injury. When a defendant admits liability, he is admitting only that he caused the accident, but not necessarily that the accident caused your injuries. You still bear the burden of proving that all injuries you claim were caused by the accident.

The nature of some injuries makes causation relatively easy to prove. For instance, if you slipped and fell on a spill at the grocery store and broke your arm when you awkwardly landed on it, it would be near impossible for the defendant to claim lack of causation. What would he say, that you broke your arm beforehand and decided to go grocery shopping before seeking treatment?

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Unfortunately, most personal injury cases involve injuries which could be caused by things other than the accident. A herniated disc in your back or neck might be caused by a fall or a car accident, but it could also be caused by any number of other things, such as degenerative disc disease (wear and tear over time). If you have any history of treating for pain in the area of your body you now allege was injured in an accident, expect a pre-existing condition defense to be raised. Even though you may know that your condition now is different or worse than it used to be, you’ll still have to convince a jury of that.

Because most people don’t routinely have their bodies scanned for abnormalities while they are feeling healthy, it’s unlikely that you’ll have definitive medical evidence showing that your injuries were caused by the accident. It will be your word, and hopefully the word of your treating medical providers, against the word of the defendant’s medical experts. Plaintiffs don’t always win this battle, so don’t be overconfident in your causation evidence. The more medical treatment you’ve received in the past to treat pain or injury that seems similar to the injury for which you are now seeking damages, the harder it will be to prove causation.

Other issues can also cloud a causation argument. For instance, if you do not immediately seek medical care after your accident, you leave open the argument that you actually suffered injury between the date of the accident and your first complaint to a medical provider. The longer you wait to treat, the harder it gets to prove causation.

As a subset of this particular problem, sometimes plaintiffs fail to report all of their symptoms at their initial doctor’s appointment (or the doctor fails to document them). If your back pain is excruciating, and your knee pain isn’t nearly as bad, you still need to make sure to report both to the doctor as soon as possible. If you only report the back pain, it could turn out that it’s just a soft tissue injury. Meanwhile, your knee could turn out to be a much more serious injury which requires surgery to repair. Failure to timely report the knee pain could cost you the lion’s share of damages in your case.

The best way to preserve your causation arguments in a personal injury case is to seek treatment early (immediately is always best) and to be sure to report all of your problems at the outset, not just the one that seems the worst.

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Even a Defendant Who Admits Liability is Likely to Challenge Your Alleged Damages

“Damages” in the context of a negligence case refers to both economic (medical bills, lost wages, etc.) and non-economic (pain and suffering, mental distress) elements. Even in cases where the defendant concedes both liability and causation, it will almost surely dispute the amount of damages you claim.

Defendants can attack your economic damages in many ways. For medical treatment, they can claim that your treatment was unnecessary or excessive. Expect this in cases where you saw a chiropractor for a soft-tissue injury. Such a defense is also often raised in cases where a large portion of your medical treatment consists of pain management. For this reason, you need to be vigilant in ensuring that you don’t “overtreat” for your injuries. Treatment isn’t automatically reasonable just because a medical provider suggested it. Overtreating for injuries is a sure way to price yourself out of a reasonable settlement — your medical bills will eat up so much of the settlement that you will personally receive almost nothing. Don’t just “go with the flow” if your chiropractor wants to see you five days a week, or if your pain management doctor wants to continue giving you trigger point injections after past ones provided no relief. Use your common sense when self-regulating your medical costs.

Non-economic damages will always be contested by the defendant, for the simple reason that plaintiffs will almost always value their own pain higher than most third parties would. If you want $100,000.00 for your whiplash pain, expect to have to go to trial (and not get that kind of award, anyway). You need to be reasonable in determining a fair value to compensate you for your pain and suffering, keeping in mind that a jury can do pretty much whatever it wants with these kinds of damages. While you may get lucky and pick a jury that wants to shower you with money for all the pain you’ve endured (and will endure in the future), you could just as likely pick a jury that thinks you are a malingerer (i.e., you exaggerate your symptoms).

Defendants know that non-economic damages have more “wiggle room” than economic damages because there is no hard evidence or formula a jury can use to determine a fair award. They will always contest the amount of these damages, even in cases where they challenge nothing else.

The Added Danger of Going to Trial in an “Admitted Liability” Case

Plaintiffs may feel emboldened to take admitted liability cases to trial because they feel guaranteed of some kind of victory. Don’t fall into this way of thinking. A defendant doesn’t admit liability out of the goodness of its heart, or just to avoid the added defense costs. There is a very sound strategic reason for admitting liability.

A defendant who goes to trial on an admitted liability case automatically gains some credibility points with the jury. It can argue, “Look, we’re not trying to dispute that we caused the plaintiff’s accident. We just want to pay for what’s reasonable and related to the accident, and no more.” That little bit of honesty that a defendant shows in admitting liability could sway jurors to believe that you forced a trial due to an overinflated damages claim and simple greed. After all, the defendant was reasonable when it admitted that it was at fault. Why would it be unreasonable when it came to causation and/or damages?

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While you and I may know that the defendant really had no choice but to admit liability, a jury will probably still give it credit for doing so. A defendant that denies liability when it is clearly liable can outrage a jury enough to award more damages than a plaintiff hoped for, but a defendant that admits liability not only diffuses that risk, but also paints itself as being reasonable and fair. So, if the jury thinks that the defendant is reasonable and fair, who do you think it will blame for forcing a trial?

Don’t Expect a Quicker Resolution Just Because the Defendant Admitted Fault

If you think that just because a defendant admits fault that it will settle your case quickly, think again. While some personal injury cases involve hotly contested liability issues, most do not. It is common for liability issues to take up a fraction of a case’s time when compared to causation and damages issues. A defendant who admits fault is not saving you much litigation time in most lawsuits. You will still need to deal with the most time consuming parts of your case. Any plaintiff who’s been deposed can tell you that only a very small amount of his or her time was spent answering questions about how the accident occurred — the vast majority of the time was spent on causation and damages questions.

Don’t get upset if I’ve burst your bubble about how great it is that the defendant admitted fault. Lawyers would still rather have a case where the defendant admits liability than one in which it doesn’t — which is why in many states where lawyers offer a split contingency fee, “admitted liability” cases stay at the lower fee percentage even after a lawsuit is filed (check your fee agreement about this). Just temper your enthusiasm about such a development with the knowledge that your fight is still only half over.

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22 Responses to When a Defendant Admits Fault, That’s Only Half the Battle

  1. Jason G says:

    Iknow your site is mostly for plaintiffs but I wanted to see if you could help me out too. (I think your site is great by the way)

    I am the defendant, who admitted liability in an auto accident, but I believe the plaintiff had a pre-existing injury that they are not admitting to. In our interogotories to them they did not admit to pre-existing and my attorney thinks they gave all info to us. Is there anyway to find out if they are trying to hide some prior doctor treatment, MRI’s CT’s or XRays.

    Again I admit to causing the accident, just not that much medical injuries

    • fl_litig8r says:

      There are several ways to find out about past medical treatment, some more cost effective than others. The easiest is to review the medical records from the person’s primary care doctor, which will usually have the most complete histories (including any mention of prior injuries or treatment by other doctors). You could also subpoena health insurance records, so if the treatment was paid for via health insurance, it will appear. If the person has used the same pharmacy for a long time, those records will reflect all meds prescribed, along with the doctors who prescribed them. Also, if you know the nature of the treatment and approximately where (city) the treatment took place, you could issue subpoenas to all doctors in that specialty (orthopedics, chiropractic, etc.) regardless of whether they were disclosed by the plaintiff. If the doctor doesn’t have any records, he’ll just respond to the subpoena saying so.

      These are just off the top of my head. I’m sure there are other ways, as well. Because there are so many ways to find out about pre-existing conditions, I always warn my clients to disclose all past treatment.

  2. Joe says:

    In my case i filed because excluded driver n parents owner of truck and who excluded son from policy refuse to pay me directly after they have lied over and over and lies are on printed txt message. They got a loan and used the money to hire attorney then filed general denial. My question is, is my suit for damages since injuries are being treated through my medical insurance, a lost cause in texas jp court.

    • fl_litig8r says:

      It’s not a lost cause from a legal standpoint, but it probably is from a practical standpoint. The problem with getting a judgment against an uninsured defendant is that he or she probably won’t be able to pay it out of pocket, and that it would cost so much to locate, seize and auction their assets to satisfy the judgment that it isn’t worth the time or effort. In your case, this is made even worse by the fact that you’ll likely have to pay your health insurer back out of any recovery you make, and your total recovery will be limited to a maximum of $10,000.00 in Texas JP (Justice of the Peace, for my other readers) court. So, is it worth your time to litigate this when the limited amount of money you may eventually be awarded, assuming you recover any of it, will probably go to your health insurer?

      I’d think about calling their lawyer and seeing about settling for whatever you can.

  3. Yoyo says:

    The employers negligent actions caused me to be set on fire from the waist to the top of my head. They admitted liability and my lawyer got excited and became friendly with them. I almost fired him because to me that was too quick and a warning sign. I was right I just read today where they are denying the entire lawsuit filed by my attorney against them. They stated the constitutional rights are being violated in several different ways and at the same time are asking a jury to award me less than 500,000 or 150,000.00.
    What do they mean there rights are being violated? They are the ones who waited over one hour to call for help while they figure out a story. The delayed my right to immediate care. According to cases in Texas people in my case are awarded around 7 million dollars for my kind of injuries. They asked a jury not to give me too much money but only money according to my wage loss. I was poor, how fair is that? These are extremely wealthy people. And to make matters more curious my lawyer stated a jury may do that weeks before I read what was called the defendants denial original answer. Does that mean they deny the entire lawsuit? What response is my lawyer to supposed to file in response to that?
    This is my lawyers first case like this. No one can give me back my old face.

    • fl_litig8r says:

      When you say “the employers”, do you mean your employer? If so, has your employer chosen to participate in the workers’ compensation system (Texas does not mandate workers’ compensation for most employers, though most still participate). If this is your employer, and it opted into the workers’ compensation system, that would be your only avenue for recovery for a workplace accident.

      From what you’ve described, I can’t tell what types of constitutional defenses are being raised, so I can’t give you my opinion on them. I don’t even know if they are defenses under the state or federal constitution. You’d have to be more specific for me to have an idea as to what they’re claiming.

      If a case doesn’t settle before suit is filed, you can expect that the Answer the defendant files in response to your Complaint is going to deny most, if not all of your claim. In some cases, the defendant will admit liability, but dispute causation and/or the amount of damages. Again, without knowing what the defendant admitted or denied, I can’t say what is happening in your case. I can say that the defendant denying a claim in its Answer is normal — they are required to file an Answer in response to your Complaint, and anything they don’t deny is deemed admitted. Typically, after the Answer is filed, discovery begins — though if in your case the defendant is claiming that this matter should be a workers’ compensation case, that issue would likely need to be resolved by the judge before the matter proceeds any further. Usually, a Reply to the defendant’s Answer is not necessary, so your lawyer may not file anything specifically in response to the Answer.

      When you say that this is your lawyer’s “first case like this”, I’m not sure what you mean. First personal injury case? First burn case? First case where he’s trying to avoid workers’ compensation damages?

  4. Neecy says:

    My husband was rear ended 6 months ago (16 foot box truck going 40+ miles per hour, he had to brace for the impact), I immediately called a big lawfirm here in town, it started out great, they arranged for the auto repair shop, and even had what I thought was a Dr. call us and schedule an appointment for my husband, when we got to the office it was only a chiropractor, which was fine he needed it, my husband had neck and back injuries, well this is where it gets crappy, we waited 6 months for an offer, we have $1,000.00 in missed wages, $500.00 in out of pocket prescription costs, $15,000.00 in medical bills, and there was close to $10,000.00 in repairs to my car. Their chiropractor they sent us to released my husband too early, we immediately called the lawyer, they had also sent him to a pain management Dr, who then was advised to write a referral to this chiropractor to get my husband back in, the Dr, sent two referrals both went unanswered, all of this was expressed to law office early on, We got a call last week from lawyer who said they had received an offer, we thought great until we heard the dollar amount, We walk away with ZERO! Our lawyer said we had to accept because adverse company said they will not negotiate and this was a one time only offer. What about future medical? We have no Insurance and ALL of the medical records say he needs Physical therapy! What about pain and suffering, the loss of value for my car? Oh my lawyer says he can’t and won’t do anything about the diminished value for my car, we went to 4 dealerships and they refuse to do a trade because they say it only has wholesale value now, before accident it was Blue booked at $20,000.00. Lawyer has repeatedly ignored requests for documents, and the actual demand letter. How can this be fair? Please advise, how can we get a new lawyer?

    • fl_litig8r says:

      What a mess. Cases in which the plaintiff has only received chiropractic and pain management care usually don’t result in large settlements, which your lawyer no doubt knew when he took the case. Has your husband received an MRI to determine if he has any herniated discs (which would increase the value of the case significantly)?

      Typically, chiropractic care has quickly diminishing returns on the value of a lawsuit — the cost of the care reaches a point where it adds nothing to the case, but makes it impossible to fairly settle due to the huge chiropractor bills. Chiropractic case is not viewed very highly in the personal injury industry, as it often only provides temporary relief without providing any long-term benefits. The amount of care your husband received was likely excessive in light of the potential settlement amount. I’ve actually received calls from angry chiropractors when I’ve advised my clients that their frequency of treatment was going to result in an un-settleable case (which caused them to cut back on visits). Your husband’s treatment may have priced him out of the typical settlement range for a soft-tissue injury case.

      That being said, if you really want to find a new lawyer, the best route is to make this lawyer fire you — because if you fire him, you may still have to pay him. He will likely withdraw if you tell him in no uncertain terms that you won’t accept that settlement offer and you want to go to trial. As an alternative strategy, you could ask him to accept a reduction in his fee so that you receive money from the settlement, but I don’t know if even that will be enough to get you the amount you think is fair.

      As far as the car is concerned, this should be negotiated separately from the bodily injury claim. Many plaintiffs settle these claims on their own, as some lawyers will want to take a fee from that part of the settlement, which ensures you won’t get full value for your car. In cases where the lawyer doesn’t take a fee from this part of the claim, how hard do you think he’s going to work to get you the best settlement for your car? If you handle this part on your own, you could pick up this cheap e-book on the subject, which discusses diminished value claims specifically, and gives helpful negotiating tips.

  5. Donna McCusker says:

    Thank you. This is a very informative Web site. I was bitten by a dog, and have been unable to get an attorney to handle the case because the owner did not have homeowner’s insurance! I’m trying to muddle through on my own because this dog bit someone previously, and I strongly feel if they had done something I might not have been bitten.

    • fl_litig8r says:

      Usually you won’t even have to prove a history of bad behavior by the dog, as dog bites are typically a matter of strict liability, absent provocation by the person bitten. If the small claims courts where you are have decent jurisdictional limits (some states go up to $10,000.00), you may want to consider using that, even if it means you won’t be awarded your full damages (you can only recover up to the limit, plus costs). These cases are usually resolved much faster than in non-small-claims courts, and the procedural rules are relaxed to accommodate pro se parties. You might want to take into consideration how much you think the defendant can pay out-of-pocket within a reasonable time frame when making your decision, as not going the small claims route may involve a lot of work that will ultimately never pay off.

  6. rtb says:

    I am confused on how to calculate or approximate damages for my injuries. I stopped for an accident on a highway. There was snow and ice. I was rear ended at a speed fast enough to cause the loading area of my vehicle to buckle and overlap almost 10 inches. None of the doors on my vehicle could be closed after they had been opened. I was removed from my vehicle on a back board and my head was restrained until I reached the emergency room. I have not been able to walk independently, rotate my neck, bend over or reach above my head, since the accident and am in the process of filing for disability. I have lost a great amount of strength and my stamina to hold my head up. My diagnosis shows I have degenerative disc disease. I was on my way to a job I had for 15 years. I was required to lift up to 70 lbs, drive, stand, walk, and be in and out of a step van at least 40 times a day. The driver of the vehicle is not able to provide a driver’s license for the past three years, but he was driving a commercial construction truck for a company. I have been told by three doctors that surgery would not help me to get much better just delay the progression of my disease. I do have an attorney, but he says my medical issues are
    multi-complicated. It has been 8 months since my accident.

    • fl_litig8r says:

      Your medical issues do indeed sound complicated. Degenerative disc disease is such a broad diagnosis that it really gives little indication as to the severity of your injury. From your symptoms, which seem to involve impairment of motor function, I would have expected there to be some impingement of the spinal cord by one of your discs. However, if three doctors have said that surgery won’t help, it seems unlikely that this is the case (surgery is almost always recommended when motor function is impaired by cord impingement).

      What this leaves you with are severe symptoms without an objectively provable reason (disc impingement of the spinal cord would be visible on an MRI). Soft tissue injury around the neck could explain the neck weakness and pain in raising your arms above your head. A neck injury without cord impingement wouldn’t explain difficulty walking or bending. That sounds more like a lumbar spine issue, which, given the motor function issues with your walking, also suggests a disc impinging the cord. If that’s been ruled out as well, then I can see why your lawyer is having a hard time dealing with your medical issues. Your symptoms appear too severe to match the objective medical findings. So, unless your doctors have some really good explanation as to why you have such severe symptoms, but won’t be helped by surgery, expect the other side to suspect you of malingering.

      A functional capacity exam might help combat a malingering defense, as there are certain tests conducted (such as a grip strength test) which are nearly impossible to fake — you use maximum effort during the test, so if you are faking weakness it is practically impossible to fake the same amount of weakness during the repeated exertions required. Such a test may be required as part of your disability claim, so it may be worth waiting to see if they order one before asking your lawyer to pay for it. They are expensive (they take all day and will easily exceed $1,000, possibly much more depending on your location), and the cost of that will be taken out of your share of the settlement if your lawyer has to pay for it. If it is done at the request of your disability carrier (or the SSA — you didn’t say what type of disability claim you have), they will pay for it, but you can still use it in your personal injury case.

      Given that you’ve already seen three doctors, I really can’t think of anything else that might help support the level of impairment you are claiming from an injury that won’t be helped by surgery.

  7. Barb says:

    I am a plaintiff in a personal injury case. I met with my attorney prior to my deposition at the defendant’s attorneys’ office. The defendant was supposed to be deposed also. Prior to my deposition, my attorney met with the insurance company’s attorney while I sat in the conference room with the stenographer.
    Then, my attorney came into the room, asked the stenographer to leave and told me that the defendant is going to accept liability and we are going to drop punitive damages and go to mediation. My attorney referred to it as a “stip”. Later on in my case I asked the attorney to depose the defendant and look into the history of the defendant for prior offenses/complaints. My attorney said a judge would never allow this because the defense admitted liability. And, it would be a waste of money. Was my attorney honest in saying ( in an email) that a Judge would not allow such requests because they admitted liability? This does not make sense. What if we go to trial?

    I forgot to add, I was then deposed and the defendant was not, the day the defendant admitted liability.

    • fl_litig8r says:

      Your lawyer is right. Even without the defendant admitting liability, any prior offenses wouldn’t be admissible absent unusual circumstances, as I discuss in this article. Once the defendant admits liability, this really makes all evidence of the details of his negligence, even in your case, irrelevant. Dropping the punitive damages claim eliminates any need to prove that his negligence was particularly egregious, so once he admitted fault, the details of his negligence became no longer relevant to your case. Your case is really just about your damages now. There’s no need to depose the defendant for that, because he has no idea what your damages are.

      The only scenario I can envision in which the details of the accident might become relevant again is if the defendant disputes causation — i.e., he disputes that the accident caused some or all of your injuries. For example, if his medical experts claim that your accident was low-impact, making it unlikely that you suffered serious injury, you could certainly depose the defendant about the accident to dispute this. Under those circumstances, details of the severity of the impact and how your body was bounced around would be relevant. If however, all he’s disputing is the value (e.g., the type of treatment required and/or the amount of your pain and suffering) of your injuries, I see no need to depose the defendant at all.

  8. Sandra says:

    Last year my niece got into a car accident where she was struck by a speeding truck. Said truck (I found out yesterday from my niece) struck the plaintiff while he was sitting on a riding law mower. She got the ticket because she pulled out in front of the truck. My insurance at the time refused to pay because I had excluded her as a driver to keep my costs down. Now I am being sued by the lawn mower man. I can’t afford a lawyer, and I am barely making ends meet. My account is more often than not in the negatives. On paper, I make okay, but take home pay is “which bill do I pay with this check?” Can they take my paycheck? I live in Texas

    • fl_litig8r says:

      I am not a Texas lawyer, but it appears that they cannot, according to this article from Nolo (a pretty reliable source), and ever other source I found in a quick Google search. Texas only allows wage garnishment by a few specific creditors in cases of alimony/child support, unpaid income taxes and student loans. It doesn’t allow wage garnishment by someone who just gets a damages judgment against you in a civil lawsuit.

      I’m kind of surprised that this plaintiff’s lawyer is going after you if you have no insurance to cover the accident. Most lawyers aren’t interested in getting judgments that will likely never be collectible, as the effort required to find and seize assets (those which can be seized under the law, which will vary from state to state) just isn’t worth it unless the defendant is rich (and rich defendants usually have insurance, anyway). It could be that the plaintiff’s lawyer thinks that your insurer should have provided coverage (not for your niece as the driver, but for you as the owner) and is seeking a judgment against you as a way of pursuing a bad faith claim against the insurer. If you’re living paycheck to paycheck, I can’t see him thinking that suing you is worthwhile, unless there’s some other goal he has in mind aside. Lawyers usually don’t like trying to get blood from a stone.

  9. Roxanne says:

    I am a plaintiff in a medical malpractice case. I sustained a ureter injury (cauterized) which was not diagnosed by my doctor despite consistent complaint of right flank pain, dizziness, nausea, constipation, etc.

    She refused to do any diagnostic test. She told me all my pain is part of procedure. She told me that I will still have some sharp pain on my right side for about a year. After 8 weeks, she released me to go back to work with no restrictions.

    One year after, a different doctor ordered an Abdominal Ultrasound. It was discovered that aside from gallbladder stones, I have hydronephrosis of the right kidney. CT scan and more tests were ordered, and it was confirmed that I have been living on only one kidney for about a year and my right kidney function at 3% is insignificant.

    Medical Malpractice suit was timely filed against the doctor, hospital, and the Ob-gyn group.

    During deposition, my doctor admitted both causation and liability. Admitted that she breached the standard of care, etc. Medical Malpractice was clearly established.

    My concerns :

    1. The hospital representative was not deposed;
    2. The Ob-Gyn Group was not deposed.

    My lawyer will not tell me if there was a settlement offer before the mediation from any of the three defendants. He said the offer is mediation. Should I trust this response?

    At the mediation, my lawyer convinced me to take the offer on the premise that it is risky to go to trial and expensive.

    I have not yet signed the Release, Final Settlement Agreement, etc., but I have signed a handwritten Settlement Memorandum which does not outline the terms of the settlement.

    He now wants me to sign an Authorization for him to endorse the settlement check, Release, and Settlement Agreement. I refused to do so since I have not seen the actual settlement check, the allocation of the settlement amount, the Release, and the Settlement Agreement.

    My lawyer mentioned unintentionally that there is a second check. Then he rattled when I asked him how many checks are there and just evaded the question.

    How do I check what is really going on? Is the Settlement Memorandum enforceable?

    • fl_litig8r says:

      For someone who agreed to a settlement, you seem to be missing a lot of information about what happened in your case. With whom did you settle? If you didn’t settle with everyone, what happened to the remaining claims? Are there multiple checks because multiple defendants settled? Do you even know the amount of the settlement, which should have been stated on any mediation settlement agreement you signed?

      I don’t know that balking at signing the checks and releases now will do you much good. If you agreed to the settlement at mediation, regardless of whether you reduced everything to writing, the defendants can very likely enforce that settlement against you. Any misconduct by your own lawyer (not that I’m implying that there was any) would not affect the defendants’ ability to hold you to your agreement. Any concerns you now have about your settlement not being adequate after your health insurance liens, medical liens, attorney’s fees and costs are deducted are way too late. Once an agreement is made, even orally, the signing of checks and releases is largely a formality. Unless the defendants also regret the settlement and want to get out of the deal (in which case you should probably want to enforce it yourself), they’ll ask the court to hold you to your agreement and it’s very likely they’ll win. I agree that your lawyer should have given you at least a solid estimate of whatever liens you’ll need to repay from your settlement before you agreed to it, but it is also your fault for not asking for that information before agreeing to settle. Even if you get that information right now and are unhappy with it, there’s probably nothing you can do about it. I’m not saying you shouldn’t still ask for that information — it’s important to know — but refusing to sign the checks and releases doesn’t really afford you much leverage to change your situation if the liens turn out to be more than you hoped, given that the court can compel you to complete the settlement to which you agreed.

      If your lawyer wants you to sign checks and releases, that’s a pretty easy way to find out who wrote the checks, how much they are for, and who you are releasing. Why not go in to your lawyer’s office to see these documents before hitting the panic button? Have a sit-down meeting to review them and get an estimate of your current liens and planned distribution of settlement funds.

  10. Pramai says:

    I wish I had come across your website sooner. I too am writing on the behalf of my mom (age 72), independent and very social, excellent eyesight 20/20 (much better then mine) and no major health problem. She volunteer at the Temple by donating her time and cooking and selling food she make and donate all to the Temple. She’s more active then me.

    Three months ago a young lady (18 recently got her license) was trying to cross 6 lane divide highway from a private driveway (no traffic light) and t-boned mom’s car. Mom’s car was totaled and mom was also injured. The young lady admits fault to the police officer and there were a lot of witnesses. Mom was rushed to ER and was there 6 hours, after all x-rays she came out with shattered right heel. They released her since there was no other broken bones. We left the hospital and stopped to get her some pain medication and a walker.

    I file a report/claim the next day (Friday), called a lawyer and was able to get her to go she another doctor (her primary was off). We were waiting to go in and I left to go get something to drink. When I returned, mom was on the phone and asked to whom is she talking to. She said the insurance company, I took the phone from her and I told the agent to call back cause mom is incoherent at this time. After I hang up the phone mom told me that they said she have to give statement now or the other party will sue (according to the insurance interpreter). After seeing the doctor, the lawyer was able to come to the house and talk to us. He came 4 in the afternoon and after talking we decided to hire him. Mom also got an appraiser to give her the amount that they’re are going to pay for her car.

    Week 1. The lawyer called to tell me some disturbing news. He said; “the policy that was given to the police was invalid” (if I were to do this on my own I would probable be extremely upset and give up) but he said; “don’t worry, we’ll sort this out”. As it turn out the girl was under her parents policy and the last name of the father and the girl don’t match. So the at-fault insurer said they would have to investigate before they can release anything. She also went to see the podiatry and received some good news, no surgery, she have a clean break in 3 places. She was fitted with a soft cast $400 (medicare paid).

    Week 2, nothing from the at-fault insurer. We (my brother and I) have to build wheelchair ramp for mom. But for the inside staircase mom have to crawl up and scoot down on her bottom.

    Week 3, sometime this week the lawyer got an answer from the at-fault insurer, they admit faults and that the at-fault only have 25/50 and we would only get $25K plus car damage and deductible. I told the lawyer that that is not enough to compensate mom’s injury and a totaled loss her car.

    The following week, the lawyer called to tell us that we could go after mom’s UM (100/300) but mom might get $40K from $100K and that mom have $25k medical coverage so her treatment won’t eat up too much of the settlement, so in total she would get $65k and I said, it’s still not enough because she will have pain and suffering for the rest of her life, her quality of life will never be the same. The lawyer said he is going to check the family financial and to see if they have any other hidden coverage. He also want mom to start physical therapy cause too much time has already past without any treatment. And of course the family don’t have anything (they live in an apartment).

    One month and two days later, mom was complaining about being hot, chest pain and shortness of breath. The doctor believed it was a sign of a heart attack due to not be active for a month and advised her to go to ER asap. (over $10k). If medical think this is related to the injury mom’s medical bills has exceed $25k and the rest will come out of her pocket (settlement money).

    To date, with all the medical expenses and physical therapy (soft tissue treatment) mom’s bill probably at $25k or more. I don’t know how much they charge for physical therapy…the first month of her treatment she was going 3 times a week, the following month mom want to go 2 times a week cause her body was better and now we might stop her soft tissue treatment because I need to keep an eye on her medical bill and the real treatment for the actual injury haven’t started yet. Should my mom stop soft tissue treatment now (only once a week)? I will have to ask for billings for the treatments she have had from the therapist. Doctor’s visits and X-ray every time she go see him (which I have to sort out with the lawyer and/or with billing department with the hospital). She has just received a bill for an ambulance ride $1250.00 (they want their money now) and should mom go ahead and pay this? The ER $5450.00 was paid by medicare in the amount of $1025.00, but her insurance company has already reimbursed the money back to medicare for $1025.00.

    Mom is still in cast and was given instruction how to exercise her foot and continue to use a walker with 25% pressure on it.

    With what little I give you (idontwanttobeyourlawyer) can you tell me if mom have a case to go for more or should we just settle? The lawyer said, it’s not a good idea to go after the family because they don’t have assets and it would be hard to prove mom’s case in court. I think the lawyer is willing to settle for $125k from both insurance companies.

    PM

    I forgot to mention this is the state of Colorado.

    • fl_litig8r says:

      With respect to your mother’s bills, she should first submit them to her auto insurer under her med pay coverage. If that has been exhausted, she should next submit them to Medicare. Any amount Medicare doesn’t pay needs to be handled either under a letter of protection or out of pocket.

      As far as her actual medical treatment goes, I wouldn’t base any decisions on how it might affect her recovery in the lawsuit. She should just accept whatever treatment she thinks is reasonable and question what she thinks is not as if there were no lawsuit pending.

      If the tortfeasor’s BI policy limit is $25k and your mom’s UIM limit is $100k, I wouldn’t expect you to be able to recover more than $125k even if you go to trial and get a big judgment. The tortfeasor’s family sounds pretty judgment proof, so what you’d really be doing by going to trial is just driving up your costs, lowering the amount your mother ultimately recovers from the available coverage just to get a judgment you won’t collect unless the defendant hits the lotto. Most lawyers don’t waste time and money trying to recover from a defendant personally if his or her liability coverage is inadequate. Inadequate limits are usually due to the person not having a lot of money. Your mom’s lawyer is probably willing to settle for the $125k because that’s the most she’ll ever get from this case — trying to get an individual judgment against the tortfeasor will likely only reduce her net recovery.

  11. lenora says:

    me and my husband was hit by a drunk driver who ran a stop sign.our suv was totaled at 22,000 dollars we flipped twice that i can remember and skidded until a school fence stopped us.we recieved cuts and bruises my arm and shoulder was hurt,we went to hospital by ambulance,my question to you is can we sue for punitive damges on top of the regular damges,

    • fl_litig8r says:

      The severity of the accident really doesn’t have anything to do with whether punitive damages are available. The conduct of the at-fault is the only thing that matters. Typically, plaintiffs will be allowed to bring a claim for punitive damages against a drunk driver, but this may not be the best thing to do from a strategic standpoint. His insurance won’t cover punitive damages (you can’t be insured for punitive damages for your own conduct as a matter of public policy), so any amount awarded to you as punitive damages would likely not be collectable unless the defendant is rich. If you give the jury the option to award punitive damages, it might shift some of the money it would have awarded you in pain and suffering damages (which are insured) to punitive damages (which aren’t), which hurts you more than helps you. A jury that is not offered the option of awarding punitive damages is likely to still want to “punish” the defendant by awarding you higher non-economic damages than it would in a case where the conduct was merely negligent. Therefore, many lawyers will choose either to forgo a punitive damages claim entirely or drop such a claim before trial so that all damages awarded must be paid by the insurer.

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