One of the most common complaints from personal injury plaintiffs is how long it takes from the time they are injured to the time they are compensated. Most probably assume that their lawyers are dragging their feet. In some cases, that may be true. However, in the vast majority of cases, there are many unavoidable speed bumps along the way that even Atticus Finch couldn’t avoid.
Delays Before Your Lawsuit is Filed
There are several important reasons why your lawyer does not file your lawsuit immediately after you hire him. First, he needs to investigate your claim — get accident reports, witness statements, medical records, insurance information, etc. Expect at least a 30-day wait before his office starts to receive these materials. Next, he will want to wait until you’ve reached maximum medical improvement (MMI), so he can evaluate how much your lawsuit is worth. This process can take many months, during which time your lawyer will periodically get updated medical records, but not have much else to do.
When you reach MMI, your lawyer will likely want to try to settle your case with the defendant’s insurance company. He usually does this by sending them a “demand letter,” a letter that explains how their insured (the defendant) is at fault and how much you have suffered in damages. He will include supporting records, such as the accident report and your medical records (no insurer will pay without proof of your injuries). He then demands that they pay a certain amount (frequently this will be the maximum amount of insurance coverage) within 30 days or he will file a lawsuit.
Why give them 30 days? 30 days is pretty much the industry standard “reasonable amount of time” for an insurance company to review a demand for settlement. If the insurer fails to reasonably settle within that time, and later on their insured is saddled with a judgment which exceeds his policy limits, the insurer may be responsible for paying the full judgment amount under “bad faith” law. If your lawyer does not give them a reasonable amount of time to review the settlement demand, he may be screwing up your potential bad faith lawsuit against the insurance company. Trust me, it is well worth the 30-day wait to preserve a potential bad faith claim.
So why should your attorney try to settle with the insurance company before filing a lawsuit? Well, in many states, like my home state of Florida, there is a direct benefit to the plaintiff in settling a case before your lawsuit is filed — your attorney’s contingency fee will be lower. In Florida, the standard contingency fee agreement provides that a lawyer gets paid one third (33.333%) of any recovery prior to the lawsuit being filed (not to split hairs, but it is actually up to the time the defendant files an answer in which it denies liability). After the lawsuit is filed, that fee goes up to 40%. So you save over 6% if your case settles before suit is filed (over $6,000.00 on a case which settles for $100,000.00).
Obviously, you will also get paid sooner if your case settles before a lawsuit is filed. Your costs (the expenses your attorney charges in addition to attorney fees, such as court fees, deposition costs, expert witness fees) will also be lower. If you can reasonably settle your case without having to file a lawsuit, you should do so. This is why it is important for your attorney to take his time and build a strong case before filing suit. You don’t want your attorney skipping steps which might ultimately screw up your chance to settle before ever having to file a lawsuit.
Delays After Your Lawsuit is Filed
After your lawsuit is filed, the majority of delays will arise from simple scheduling issues. For example, say the defense attorney wants to depose one of your treating doctors. He will need to coordinate a time to do this which is open for him, for your attorney and your doctor (if there is more than one defense attorney involved, it will have to be coordinated with all of them). How long does it take you to get an appointment to see your doctor for a 15 minute exam? Now imagine trying to find a place in his schedule that is open for a 2 hour deposition. Often, depositions need to be scheduled months in advance to accommodate everyone involved.
Of course, depositions are not the only things which will need to be scheduled. Any motions which need to be heard will need to be scheduled with the court. Finding a hearing date that works for the attorneys and the court will also usually result in a delay of several months.
Many courts will require that the parties go to mediation (a formal settlement conference) before they will give you a trial date. This will need to be coordinated not only among the attorneys and the mediator, but also the parties (including you) and a representative from the defendant’s insurance company. Often, mediation will be a waste of time unless the parties delay it until after a good amount of discovery is completed, including any important depositions (if you could have settled before discovery was done, you probably would have settled before the lawsuit was ever filed).
If your mediation fails to result in a settlement, the court will then give you a trial date. Think you’re near the finish line now? Not so fast. . .
Delays in Your Trial Date
The first thing you should know about how the courts work is that criminal cases always take priority over civil cases (people’s freedom being more important than their money). There is no right to a speedy trial in civil lawsuits. Expect that your trial date will be set many months, if not more than a year, from the time the court issues an order setting the trial. This date will need to be cleared with both parties’ attorneys (keeping in mind that they need to find a time when they have days, if not weeks, available at the same time).
The second thing you should know about civil courts is that they schedule multiple trials for the same time, with the same judge, knowing that most will settle before the trial date. Most times, when you get your trial date, you will not be “first” on the docket, meaning that there are other cases set for trial which take priority over yours. You may be bumped. For example, you could be told that you are set to go to trial on the week beginning 2/28/2011, but that you are “number 3″ on the docket. This means that there are two cases set for trial ahead of yours for that date. Both of these cases must settle or agree to be moved for you to have your trial on that date. If one of those cases actually goes to trial, your trial gets bumped to the next available docket, which could be many months away — and you may still not be “number 1″ on that docket! If the court offers your attorney a chance to be “number 1″ on the docket, often this will require him accepting a trial date which is much further away than one where he can be “number 3″ or “number 4.” Usually you will get to trial faster by not holding out for a “number 1″ position (because the odds are so high that cases ahead of you will settle before trial).
The third thing you should know civil courts is that they grant “continuances” all the time. A continuance is a request by one or more parties to bump the trial date down the road. There are many reasons for requesting a continuance, such as witness unavailability, illness, or the need for more discovery. Just know that if a continuance is granted in your case, it will mean several more months of waiting before your case goes to trial.
Most Delays Are Not Your Attorney’s Fault
Personal Injury lawsuits often take a long time to resolve. Most of the delays you will encounter are not your attorney’s fault. Before suit, they are mostly caused by needing to wait to see how your medical treatment goes. After suit is filed, they are mostly scheduling issues (among people who are booked months in advance). There really is nothing that can be done to speed things up in most cases.
And don’t even get me started on appeals. . .
I have three (3) cases and i have a Lawyer that had them for 1 Year and more.He kee[p telling me One Case is in Bankrutpy,One is where he keep contacting the Car Insurance Lawyer and he won’t contact him back and One case he trying to decided how to send it to the People.What should i do?
First, what I am offering is not legal advice — I don’t know the specifics of any of these cases so it’s tough to give a clear answer. That being said, here’s my take in the order you mentioned:
Having a case for longer than a year is not unusual. As my article discusses, there are lots of thing the lawyer has to wait for (such as MMI) before even sending out a settlement demand, much less file a lawsuit. Believe me, it’s frequently as frustrating for the plaintiff’s attorney as it is for the plaintiff. After all, we don’t get paid until you do.
question; if the criminal cases take priority over civil cases, can the party file a change in venue? At the time of the accident he lived in a different county but now he resided approx; 4 hours from the original county.
Criminal cases take priority over civil cases in every venue, so unless you are trying to change venue to a place that you know has less of a criminal case backlog, it won’t do you much good. The court in the county where the defendant currently resides will have personal jurisdiction to hear the case, but if you’ve already filed in one county, a motion to change venue will be viewed with great skepticism by the judge. He may think that you’re “forum shopping”, i.e., looking for a more plaintiff-friendly judge. Because you, as the plaintiff, are the one who picked the venue to begin with, you’d really have to show good cause for changing it (for example, if most of the witnesses or treating doctors reside in the new venue). Just wanting a venue with a faster docket won’t cut it.
If you really desperately want to change venue, you could voluntarily dismiss your first case and refile it in the new venue (as long as this is your first voluntary dismissal — a second voluntary dismissal is with prejudice, meaning you can never re-file). Of course, the defendant could then move to change back to the original venue, and if most of the witnesses are in the original venue, it will probably be granted.
yes sir, i have three cases with a lawyer from the same accident, my question is do my attorney receive 33.333 total from my cases or 33.333 fromeach one.(the cases are myself the driver, my wife and son also in the automobile).
For your lawyer to represent all three people, he would have to have a fee agreement with each person (if your son is a minor, a parent would sign on his behalf). So, he would be entitled to receive a fee from each case.
When representing multiple plaintiffs from the same accident, each claim can be settled or taken to trial. If your lawyer is able to settle your case, but needs to take your wife’s or son’s to trial, would you expect him to do that for free (yes, he was already paid for your case, but what’s to stop him from dropping your wife’s and son’s cases if there’s no benefit to him from getting them a recovery)?
Sir. thank you very much, you are a service to mankind.
Sir, my case took nearly 10 months for issurrance adjuster to even respone to my lawyer, they finally made the first offer, my question is how long should my lawyer give adjuster to make 2 offer. I’m asking because i think my lawyer is giving adjuster way too muck time.
Most lawyers give insurance companies 30 days from the date of the first settlement offer to respond. Sometimes we’ll extend that if there’s a good reason, but 10 months is way too long. Are you saying that it was 10 months from the date your lawyer sent out the settlement demand, or 10 months from the date of your accident? If it was 10 months from the demand, I can see why you’re upset.
Depending on how much additional information is provided in subsequent demand letters, I’d expect a lawyer to give them anywhere from 10-30 days to respond. Of course, it could go quicker if they are at the point where they are no longer exchanging information and are just making offers back and forth.
thx,
Thanks for your service.
You’re welcome. Thanks for taking the time to say “thanks.”
7 months now, and only have one letter sent to the bank . waiting to meet with them, need date. awfully long time for such little progress-I think. I may fire him today..your opinion please.
stolen drivers license, forged withdrawl slips, all done via drive thru
@ KEY BANK–in one month—$1,000 withdrawn each time x 20. bank refuses to show pics from drive thru…
As an initial matter, this isn’t a personal injury case, so I claim no expertise in the area of law in which your case falls. That being said, if your lawyer has had your case 7 months and has only written one letter, it doesn’t sound like he’s pursuing your case with much zeal.
Before firing him, I’d suggest setting up an appointment to meet with him in person to get some answers as to what he’s been doing and why things are taking so long. If you are unsatisfied with his answers after the meeting, then you’ll know what to do.
After 2 years and 5 months just now my hospital bill was paid in full. Does this mean that the insurance has already paid my lawyer? When i checked with them they did not have any notice of the hospital being paid. Also 2 insurance being sued under 1 lawsuit to which 1 insurance has already paid the policy limit. are my lawyers suppose to give money or am i suppose to wait until both insurance pay?
Your situation sounds odd. I’ve never heard of a liability insurer directly paying a medical provider when the plaintiff has a lawyer, especially where that lawyer had no notice of the payment being made. Was this direct payment part of a settlement agreement? Because your lawyer didn’t know the bill was paid, I assume the check did not go through his office. So, I doubt that your lawyer has been paid. Your lawyer should provide you with a written settlement distribution to sign before deducting his fees. It should list the total amount of the settlement check, the amount of attorney’s fees, an itemized listing of costs, and a listing of liens to be paid from the settlement. Unless your lawyer provided you with one of these to sign, he probably hasn’t gotten any settlement money yet.
When you say that two insurers are being sued, I’m not sure if you mean 2 different defendants with different carriers or one defendant with both “primary” and “excess” coverage (the excess coverage is liable for any amounts which exceed the primary policy’s limits, up to the limits of excess insurance), or a defendant’s insurance and your own UM insurance.
Under most circumstances, a plaintiff does not have to wait for both insurers to settle before getting paid, assuming that the settling insurer has paid enough to satisfy all medical liens after attorney’s fees and costs are deducted. If your medical liens exceed the amount of the first settlement (after attorney’s fees), there wouldn’t be any money to pay out to you yet and you’d have to wait until the second insurer settles.
Thank you for your reply.
when i stated 2 insurance i meant as in 2 different persons. It was a 3 car accident where i was hit once and then once again as i was moving my car out of the way. And i do not think the first payment was enough to cover the medical bills.
Thanks again for your information.
My lawyer tells me the insurance co. wants to settle about 6 months ago and now he tells me their asking for a second doctors depo. is this normal. this whole process has been going on since september 2010 what has changed since they depos. the truckdriver that hit me?
Unfortunately, this is normal. Plenty of things could be going on here to explain your situation. It sounds like your case involves clear liability, but a dispute as to damages (which is very common). The defense lawyer may have sent a strong signal to your lawyer that they want to settle, but now he realizes that you guys are too far apart when it comes to damages. The second doctor depo may be an attempt to answer some questions as to your damages (necessity of future treatment, cost of future treatment, etc.) which could help narrow the gap between the two parties.
It is pretty normal for personal injury lawsuits to take over a year to settle, at least when the defendant has sufficient insurance to cover all of the plaintiff’s injuries (quick payouts by insurers often indicate that their policy limits are not high enough to cover all the damages — a situation you do not want to be in).
Do you have a mediation scheduled? I wouldn’t be surprised if the parties have some unanswered questions they want resolved before a mediation.
Thanks for the feedback.My lawyer says it has not got to that point yet nor abritration…The accident involved a commercial box truck that hit my work truck and damaged my knee that required surgery on my pattella and airbag burns…I was just worried that the insurance co or my lawyer was trying to pull a fast one. Thanks again
I need some advice on a issue with my insurer. My husband was involved in an accident whereas he hit a pedestrian with his car. Some background info: 6 am, dark, pooring down rain, pedestrian was standing in the middle of the road not moving, not at a crosswalk. Apparently the pedestrian has mental issues, hence his being out in the pooring down rain at 6 am. A witness said he does it all the time. My husband was not at fault per the accident report. Our insurance company settles for the standard $100K and told us they had language in the settlement stating the plaintiff could not file a civil suit. Now 6 months later, a request for a jury trial has been sent by the plaintiff’s lawyer. I have no clue what is going on. Can you provide any insight?
Did you skip the part where the plaintiff filed suit? Was your husband served with a copy of the complaint? Did your husband’s insurer hire a defense attorney for him? Are you sure the settlement offer of $100k was accepted by the plaintiff?
Assuming the plaintiff did settle with your husband’s auto insurer, the insurer would have had the plaintiff sign a release which would preclude him from suing your husband (if the lawsuit was already filed, it should have been dismissed after the settlement).
If your husband had a defense attorney assigned to him, call that lawyer ASAP and find out what is going on. If he never had a lawyer assigned to him, call your auto insurer immediately and tell them what happened. They should hire him a lawyer to take care of this.
This sounds extremely unusual.
Yes, the plaintiff did file suit. Apparently, the lawyer was coming up on his statute of limitations of 2 years. We were served with a copy and also our insurance co. sent a letter stating they hired a law office on my husband’s behalf. The settlement has been verbally accepted and from what I am being told, the settlement has not been signed due to Medicare holding a lien on that settlement. Our insurance co. will not release the check until Medicare releases the lien. I will call the law office and find out what is going on for sure. Any thoughts?
It sounds like your insurer is just being cautious about the medicare lien to avoid having to pay the same thing twice. It sounds like your insurer may be negotiating directly with Medicare, and may intend to pay Medicare directly, which is a bit unusual (at least where I practice). Where I practice, typically the settlement check is sent to the plaintiff’s lawyer for the full amount along with a release which contains language that states that the plaintiff will hold harmless and indemnify the defendant for any third party liens (meaning in your case that if Medicare doesn’t get paid by the plaintiff and it sues you or your insurer, you could sue the plaintiff as a “third-party defendant” and he would be liable to pay you for any damages awarded in the suit brought by Medicare).
Of course, it could just be that Medicare is dragging its feet in delivering a final lien amount (they are notoriously slow), and your insurer is just awaiting confirmation that the settlement will cover the lien.
Either way, it sounds like this has been settled and now it’s just in the “book keeping” phase of the settlement.
Going back to your initial inquiry about the request for a jury trial, this may just be a procedural tool the plaintiff’s lawyer is using to avoid the court dismissing his case for lack of prosecution (which will often be done automatically if 1 year, give or take, goes by with nothing being filed with the court) while he waits for the settlement to wrap up. This is a common practice in Florida, where a case cannot be dismissed for failure to prosecute as long as the plaintiff filed what’s known here as a “Notice for Trial” (which asks the court to set a trial date). I can’t see the plaintiff’s lawyer actually doing any more real work on this case while a settlement is pending (especially when it’s just a lien issue causing the delay). So, I suspect that this Request for Jury Trial is nothing to worry about. Definitely confirm this with the lawyer your insurer hired, though.
What happens if the at-fault driver’s insurance limit isn’t enough to cover all of our medical expenses? Is that when our under-insured coverage kicks in? The accident (a drunk driver ran a stop sign) happened only a month and a half ago, but since then we’ve found my husband has two fractured vertabrae and 4 bulging discs…is it likely, then, that the insurance company will settle quickly? They were extremely quick to send us a check for our property damage deductible–we literally had a check from the at-fault’s insurance within 4 days of the wreck. Our attorney and our insurance company reps were absolutely shocked at the speed with which the other insurance company resolved that portion of the claim. In my mind, they are acknowledging the greivousness of their insured’s actions, leading me to hope that this will translate into a faster settlement of the personal injury claim. What do you think?
Yes, your UM insurance pays for damages that exceed the tortfeasor’s BI coverage.
The quick payout on the property damage claim is nice, but may not mean that the BI payout will be as fast. Often, these types of claims are handled by different insurance adjusters. The property damage adjuster may just be super efficient.
The real determining factor in how fast the defendant’s BI insurer will pay is the insurance company’s risk of a bad faith lawsuit if they don’t pay out policy limits. If the defendant’s BI limits are grossly inadequate, you can expect the insurer to pay within 30 days of a demand being made. I hope you have enough UM coverage to make up the difference. Ironically, if you do, it may take a little longer to settle with the UM carrier than if you didn’t have adequate limits. This is because both sides have to truly figure out how much your husband’s claim is worth, as opposed to just saying “Well, it’s clearly worth more than our coverage, so pay the limits.” It may take some time before the full cost of your husband’s injuries can be determined, as well as the extent of any permanent impairment.
Thanks for the information! Much appreciated.
Hello
I have was in a car accident where i was rear ended back in 2009. Now my lawyers assistant keeps telling me that they are in negotiations. This has been the 3rdfollowup since the beggining of Octlast follow up at the begging of December she came back to be stating that the handling attorney and the opposincounsel were in negotiations with a follow due on 12/16. to date I have yet to hear from her. Is it normal for them to try so many negotions with no success?
Well, technically, opposing lawyers are always “in negotiations”. If you want to get a more clear picture of what is going on, ask what the last offer was from their side vs. the last demand from your side. If they can’t give you that info, it sounds like there wasn’t much negotiating going on.
It may be that your lawyer is working your case diligently, and the paralegal is just giving you the quickest answer to get you off the phone. Has suit been filed in your case yet? If not, and you can’t get a straight answer as to why negotiations are dragging, it’s probably time for a face-to-face meeting with your lawyer so he can explain directly to you what’s going on.
why would the people who hit me lawyer need to see my w2s for 5 yrs an address for 10 years an people that lived with me for that time florida is where the accident happened.
These are fairly standard discovery requests in personal injury cases. They want your tax records to see if your lost wage claim is supported (they ask for multiple years to avoid any unusual years which aren’t indicative of your normal income). If you’re not making a wage loss claim, your lawyer should object to this request based on relevance.
They want your address information so they can investigate prior accidents and medical treatment. They want the names of people who lived with you because they are potential witnesses to how you were prior to the accident. These people would likely know of any pre-existing injuries or limitations and how active you were, in case you claim that there are things that you can’t do now that you used to be able to do.
Discovery allows each side to ask for anything that is reasonably calculated to lead to admissible evidence. The things they request do not need to be admissible in and of themselves.
Don’t think that they are singling you out for these requests. These are the types of things defense lawyers ask for in all personal injury cases. They may completely support your case (which the defense would also want to know before trial).
Another procedural type question for you…I could ask our lawyer but didn’t want to be that annoying client that you write about.
Ok, car accident happened in October of 2010. My wife sustained most of the injuries. The defendant’s insurance company gave us an offer which stunk, so we got ourselves an attorney. After doing his thing, the insurance company made another offer (more than double the offer originally made to us). Our attorney says it’s still too low, so he filed suit. Trial date is set for July of this year. My wife was deposed last month. It appears the date is approaching to get expert witnesses lined up. Our attorney expected another offer prior to that. We are waiting to hear back from him but it appears that date came and went without another offer. How should things proceed now? Should we expect additional offers to settle prior to the trial? What about mediation? Does that happen close to the trial date?
I am somewhat surprised that your judge gave you a trial date before requiring a mediation. That’s unheard of where I practice. It’s not necessarily a bad thing, as an impending trial puts a lot of pressure on the defense. I wouldn’t be surprised if you have a mediation arranged in the near future. The sooner the better, as both sides’ costs will rise significantly as trial approaches due to expert witness fees and deposition costs. Most mediations don’t happen until after the plaintiff’s deposition, so the fact that your wife’s deposition just occurred last month could explain why you haven’t had one yet.
Unless your case is one that absolutely needs to be tried, expect settlement negotiations to continue up until (and maybe even during) trial. Some cases, especially those involving disputed liability or causation (they admit the existence of injuries, but deny that the accident caused them) are extremely tough to settle. I had a case once with disputed causation where the result of the trial would either be millions in damages or close to nothing, based on a disputed causation issue. The insurer decided to roll the dice at trial and lost big. Despite three mediations and settlement talks that continued into trial, the case just couldn’t settle because of the “all or nothing” issue and the huge amount of damages at stake. Hopefully, your wife’s case doesn’t have similar issues which would prevent a good settlement.
As to what happens next, expect that most of it will be “behind the scenes” things which don’t require your wife’s attention. Your lawyer will meet with and prepare experts. He’ll get reports from the opposing side’s experts. Both sides will exchange discovery to probe expert opinions and narrow down who will be called as witnesses at trial, and what documents will be submitted into evidence. Each side will conduct depositions of experts and lay witnesses who are expected to testify at trial. Each side will file Motions in Limine, which are motions to exclude certain things from being brought up at trial. Both sides will eventually need to produce final witness and exhibit lists (if they don’t list it, it almost certainly can’t be used at trial). Each side will prepare proposed jury instruction and a verdict form, which sounds like it wouldn’t be contentious, but usually is — believe me, the wording of these forms can dictate the result of the trial.
All unresolved motions and issues will go before the judge at the pre-trial conference, after which everyone should know exactly how the trial will play out. After that, it’s on to jury selection and trial. So, there’s really quite a bit that needs to be done between now and July.
Now, imagine that you’re the insurance company and that you have to pay your lawyer by the hour to handle all of these things. Do you think you might want to take another stab at settlement?
It sounds like your lawyer is doing a good job and is trying to keep your costs under control (this is why you delay incurring expert costs until absolutely necessary). I hope your wife gets some good settlement offers, and if she doesn’t, I hope your lawyer knocks it out of the park at trial.
Hi i have a accident case which my lawyer told me its been settled down for $100,000, he wants to take 40% and he saying that the case went to litigation. how can i believe his saying the truth? the person insurance limit who was involved in a car accident was $15000 and my lawyer got the rest of the money from my own insurance. i never showed up in a court or anything like that. does my lawyer have the right to charge me 40%. what kind of a paper work should i ask him to show me before i sign and agree to his term for charging 40%?
Thanks!
The 40% fee is typically triggered by the filing of the defendant’s Answer to your Complaint. In Florida, if the Defendant admits liability in its Answer and requests a trial on damages only, the fee stays at 33 1/3%. Your fee contract (which you should have a copy of) will state if your fee agreement follows this standard.
The Complaint is the very first thing filed in a lawsuit, and the Answer to the Complaint is due within 20 days of the defendant being served with the Complaint. Therefore, it wouldn’t be surprising if the 40% fee was triggered without you ever having to go to court or even answer any discovery.
To confirm that the 40% fee was triggered, ask to see a copy of the Complaint and the Answer. If the Answer does not admit liability (fault) for the accident, you definitely owe the 40%.
To see if the Answer admits liability, find the numbered paragraph in your Complaint where you allege that the defendant was negligent. Look for the same numbered paragraph in the Answer. If it says “Denied,” the defendant did not admit liability. If it says “Admitted,” the defendant did admit liability, which should result in your fee staying at 33 1/3% (assuming your contract provides this).
Your lawyer would get in serious trouble with the state bar if he tried to claim more of a fee than he was allowed to under your contract, so I doubt that he’s lying about you owing the 40%.
I was in car accident with two of my daughters. I have two herniated discs, one daughter seems fine, the other daughter has back problems. my attorney said we had court day end of january 2012. we went into negotiations mid January. I just got settlement package, it was not what my attorney stated on the phone. They want to settle for 70,000.00. This is a huge insurance company for a school, (School bus rear ended me). can I still go to court? I don’t think my attorney had all his ducks in a row. He was afraid because they hired an expert to say the bus couldn’t cause the injury and in docs findings I apparently have arthritis. OH another thing. I work for the school district, whose bus hit me. I have not signed anything but they are denying any liability, but in the depo the bus driver did admit liability.. what should I do?
When you say “it was not what my attorney stated on the phone” do you mean that you did not give your attorney the authority to settle for the amount stated? If you gave him permission to “get as much as he can”, or something vague like that which didn’t specify an authorized settlement amount, you are likely stuck with it. If you told him to take no less than $100,000.00, and he took $70,000.00, there is still hope to correct this, as long as you haven’t signed the release/settlement agreement.
Because you sued a local government agency, there is a good chance that there is a statutory cap on the amount of damages you can recover, which is often $100,000.00-$200,000.00 per person (e.g., in Florida this was recently increased to $200k from $100k). Find out from your lawyer if there is such a cap, as it may affect your analysis of whether it is worth going to trial. Also, there may be a cap on your lawyer’s attorney’s fees in such cases (again, in Florida, fees in negligence cases against state and local governments are capped at 25%, instead of the usual 33-40%).
From what you’ve described, it sounds the school district isn’t disputing liability (who caused the accident), but they are disputing “causation” (whether the accident caused your injuries). These cases can be tricky, as they often hinge on a war between the two sides’ medical experts. Also, they are particularly tough to settle because a finding for the defense often negates a huge portion of your damages. If the other side is just alleging that you had arthritis which wasn’t caused by the accident, that’s not as bad as them arguing that your herniated discs are unrelated to the accident. Find out which it is.
I’d really suggest having a face-to-face meeting with your lawyer so he can explain in detail his perceived problems with your case, and why he thinks you should take this settlement offer. If he thinks that you have a 50/50 chance of winning the causation argument at trial, and your damages are capped at $100,000.00 by statute, $70,000.00 may not be a bad settlement offer. You need to know a lot more details to decide whether this settlement offer sounds fair.
Hello!
I was involved in an accident in the middle of September of 2011. The other driver was arrested for alcohol use. She crossed the line on a two lane road into my lane, I tried to pull into her lane to avoid her, but she hit my rear passenger quarter and the damage made my car a total loss. I received severe bruising of the chest and shoulder injuries that have been treated with physical therapy. After I finished PT, I dropped the records of my treatment to my lawyer. This was the day after Thanksgiving. They said to give them a call after the first of the year.
I called them the first week of January and they said they were in the process of verifying medical records and documentation. I haven’t heard anything in over a month. I’m at wits end things just keep piling up. I’ve been working since a week after the accident, but the amount of distress i’ve had since the accident worrying about money and how i’m going to make ends meet has been taking it’s toll on me. I’m going to call tomorrow and just ask if there’s anything they need from me as far as paperwork to speed things along. After reading this, it seems normal, but the other driver was clearly at fault and I didn’t think there would be that long of a period after I dropped my records off before I heard something back.
Any advice or suggestions would be more than welcome. Thank you.
It’s a good idea to call tomorrow and offer your help. That’s a very non-confrontational way to give your lawyer an extra “nudge”. While liability certainly seems clear in your case, disputes over the amount of damages can be just as difficult to resolve. Cases where the defendant admitted liability go to trial all the time just to resolve the issue of damages.
There is a silver lining to the delay in your case: it likely means that the defendant has enough insurance to fully compensate you. Cases involving clear liability and an underinsured defendant tend to settle quickly, because it’s frequently clear that the plaintiff’s damages exceed the defendant’s coverage. In those cases, the two sides never have to come to a real agreement as to the actual value of the case. They both just agree that the case is worth more than the defendant’s limits. In cases where the defendant has adequate policy limits, the hard work of coming up with a specific value of the case to which both sides can agree can slow down the settlement process. If your lawyer needs to come up with a real value for your case, it’s going to take time. Remember that your past medical treatment isn’t the only consideration. Any treatment you may need in the future will need to be nailed down before your lawyer can make a proper settlement demand. Even if it’s just occasional follow-up visits with the doctor, or pain medication, or a visit to the ortho a year from now to see if your shoulder is developing arthritis from the injury, your lawyer will want to have all bases covered.
Your lawyer’s office could be waiting on an MMI report from your primary doctor, which usually sets out your anticipated future medical needs and any permanent limitations you may have which could affect your ability to work. There could also be delays from your health insurer or medical providers in delivering lien information. Or, it could just be that someone in his office just hasn’t gotten around to your demand letter yet. Either way, continue to be nice to them and offer your help. That’s usually enough to get your case off the back burner.
Thank you so very much.
I wasn’t expecting a response today, but you’ve done just that. I appreciate the advice and to hear that i’m not totally boned or crazy in thinking a nudge may be in order. I’ll give them a call! Thank you again!
~Bill
You’re very welcome. If you find any articles on the site helpful, Facebook “likes” or Google “+1s” are appreciated (buttons are at the bottom of every article). They help other people find the site in search engines.
This is a texas case.I was rearended by a woman he policy is 300k,it happened in jan 2008 we have done mediation and was offered 5k we laughed and my attorney went in and talked to the insurance company attorney,he came back in and said there is money in that room so the mediation was canceled for another date,that date came and went. we have been set to go to trial 4 times now,2 of them I was never told about. we are set to go to trial again mar 12th 2012 is there a limit on how many times a trial and be in continuence? My attorney says we have filed a stowers demand on the insurance co. my lawyers legal assistant does not like me at all and i don’t care for her either,she sent me my trial date of mar 12th i contacted he again and asked her for the time of the trial she again sent me only the date,the 12th. I emailed my attorney and he sent her a email and asked her to get me the time of the trial she has not sent it to me. I have a friend that has been to several trial accident injury cases. I asked him it it is true that the court does not give the date of the trial and the time of the trial at the same time,He said to his knowledge they are given at the same time. My attorney says they don’t ,I can’t get my attorney to talk to me he is very blunt when I ask a question and sounds like he is taking his assistance’s side. She is outright rude to me. I told him I didn’t want her to do anything on my case but she continues to. We are now into the fifth year how much longer can this take? I have severe spinal cord injury 3 vertabra’s pressing into my spinal cord 2 at about 10 percent the third at about 75-80 percent I have no income just drawing food stamps and i cannot work and my life has been destroyed. and also should i tell my attorney i want a jury trial? my understanding in a bad faith(stowers demand) if we win we can ask for any amount we want and is it ture they have to pay my attorney’s fee and all medical bills and I get what the judgment was all to myself? I am about to the point of my days are limited here on earth. I suffer every day and cannot get medical attention. The operation I need costs over 100k and my attorney won’t help me get it nor will the insurance company.
Any help appreciated
Wayne
Wayne,
Thank you for your questions. I’ll break my answer into sections for clarity:
Is there a limit to the number of times your trial can be continued?
Theoretically, no. In practice, however, a trial judge is much less likely to grant a motion for continuance when the case has been continued previously. Some or all of your prior “continuances” may not have been due to either side requesting them. When setting a trial date, courts typically docket several cases to go to trial on the same date and assign a priority to each case. So, if there are 5 cases set for trial on the same day and your case is #3 on the docket, you won’t go to trial unless cases #1 and #2 go away, either through settlement, a requested continuance, or any other reason which terminates the cases. If your case has run into this issue multiple times, your lawyer can often request that the judge assign you a trial date where you will be #1 on the docket. Unfortunately, this usually means taking a trial date that is much later than earlier ones where you might get #2 or #3 position. It’s a tough decision between taking a “#1 docket” trial date a year from now versus a “#3 docket date” 4 months from now. Sometimes, lawyers just get unlucky and wind up behind cases that don’t settle. You should find out from your lawyer whether your current trial date puts you in the #1 docket position. If not, you may get bumped again. If there is a case ahead of you which will only take 1 day to try, you may still go to trial if yours can be tried in 4 or less. Your case would just start on the second day of the trial week.
Should you know the exact time to show up on the trial date?
If your case isn’t #1 on the docket, you may not, for the reasons stated above. If you are #1, you should know by now when to show up. You should be there for jury selection (voir dire). However, the court may schedule certain pre-trial motions to be heard the morning of the first day of trial, which could delay jury selection and explain why your lawyer can’t tell you exactly when to show up yet. Trial procedures vary not only from court to court, but also from judge to judge. Some judges might not be as diligent in setting the time to show up as others.
Should I tell my lawyer I want a jury trial?
I cannot envision your lawyer not having asked for a jury trial. The demand for a jury trial is most often found in the Complaint, so if you have a copy of that, you can check to see if one was requested. If, for some weird reason, your lawyer hasn’t requested a jury trial by now, it’s way too late. Procedural rules set short deadlines for requesting a jury trial.
What is the effect of the Stowers demand?
In Texas, the Stowers demand is a formal settlement demand for an amount within policy limits that sets the groundwork for a bad faith claim against the insurer, should you ultimately obtain a judgment which exceeds limits (an “excess judgment”). As in all bad faith cases, an excess judgment does not automatically entitle you to recover the excess amount from the insurer. You would need to obtain an assignment of the bad faith case from the defendant (the insurer acted in bad faith towards him, not you) and litigate the bad faith separately if the insurer does not automatically roll over. Most of the time, if an excess judgment is obtained, the insurer won’t require a full-blown bad faith lawsuit and will try to settle the claim.
I see nothing in Texas bad faith law that would allow the recovery of your attorneys fees as part of a typical bad faith claim. There may be another procedural tool to allow this (there is in Florida, known as a “proposal for settlement” or “offer of judgment”), but it has nothing to do with your bad faith case per se. Nor do I see any means of requiring the insurer to pay your medical bills beyond that which was awarded in the excess judgment. The bad faith claim simply allows you to make the insurer pay the full amount of the judgment you obtained at trial, regardless of the policy limits (which is still pretty good).
What to do about the paralegal?
I wrote an article about dealing with the paralegal assigned to your case. Unfortunately, it may be too late in your case to mend any fences with this paralegal. Rude paralegals usually keep their jobs because they make up for their rudeness with competence, kind of like Dr. House on TV. I’m not surprised that your lawyer hasn’t pulled this paralegal off of your case. It would take a huge effort to bring a new paralegal up to speed on a case this old.
If it seems that he’s “siding with” her over you, it’s probably because pissing you off will cause him fewer problems than pissing the paralegal off (who he sees every day and relies on continuously). It’s not fair. It’s just law office politics. If she were a lousy paralegal, he probably wouldn’t hesitate to fire her. So, maybe you can take some small comfort in the fact that her rudeness may be a sign that she does a good job.
I hope you keep your trial date and I wish you success at trial. Hopefully, you’ll get a nice fat excess judgment that the insurer will immediately pay in full. Please come back after your trial and let us know the outcome.
Dear fl_litig8r. I want to thank you for all your help but I am now in need of more help as I told you my trial date was set for March 12 2012. I contacted my attorney’s office Friday March 9 2012 to find out if my trial was still a go. To my disappointment it has been put into continuance again,this is the 5th time. She said it has been moved to July 6th 2012. My attorney will not talk to me so I had to speak to the legal assistant that does not like me. She told me the defense attorney contact the judge and asked for a continuance again and was granted the continuance the very next day. After I spoke with the legal assistant I thought I better get her to send me this information by email to cover myself just in case my trial had not been canceled and move to another date and I didn’t show up it would be thrown out of court. I am going to send you the email that I was sent from another attorney in his firm,here it is:
Mr. XXXX:
Esmeralda informed me that you wished for an e-mail from an attorney handling your case regarding the continuance the Court granted of the 3/12/12 trial date. The Defendant’s counsel moved for a continuance, claiming that they had other obligations, like they did in October. Unlike the previous continuance, however, this time the Court did not allow any time for response, though we told the Court we were opposed. The Court simply granted the continuance the next day after it was filed and informed the parties a week later that they would have to agree on a trial date that was convenient for everyone. The earliest setting the Court had was July 16, 2012.
When we received no written notice re-setting the trial to that date, Esmeralda called the coordinator this morning so that she would have a certain date to give to you, rather than telling you it had been reset and we didn’t have a date yet. The coordinator confirmed that your case was re-set to July 16, 2012.
If you have any additional questions, please let me know.
Sincerely,
****** *****
I thought I better not send her name as it might cause me some problems.
Is it a judges practice to give a continuance on a case without discussing it with my representative/council . And is it common practice for my council not to contact me to inform me of the continuance of my trial date as it is over 125 mile drive for me to get there and he knows I have no transportation of my own and no income coming in and I have to rely on help from a friend to get me there and use his money to supply gas to get me there. They have known about it for 2 weeks now as per what his legal assistant told me.
Is there a statue of limitations on a case like mine. In other words do they have a time limit to settle with me.
His legal assistant also told me if they do this again they will sanction. can you please explain what that means?
Is there anyone I can go to to put a stop to what is going on maybe like contacting The Supreme Court or another lower court and get my case moved from this court that is allowing all these continuance’s. Or who has jurisdiction over this court because I know if I piss this judge off I will not have a chance in h*ll.
I have lost approx. 25-30 percent use of my left arm since the last time I contacted you. I am in dire need of medical attention.
I am not sure what is going on in this court house,,the judge and the insurance company are sleeping together or something.
Thanks again
If you would like to contact me to say something in private please email me hawkshaw333 at gmail dot com
Judges have a broad amount of discretion in deciding whether to grant a continuance or not. If the grounds for the motion made it clear to the judge that he would grant it no matter what your lawyer said (e.g., if the defense attorney had a family medical emergency or another trial scheduled for the same day), I’m not surprised that he didn’t wait for your lawyer to respond before granting the motion. It’s not ideal for a judge not to allow your lawyer to possibly challenge the grounds upon which the continuance was sought, but it happens.
You really have no recourse when a continuance is granted, as an appellate court will almost never overturn the granting of a continuance. They’d be far more inclined to overturn the denial of a continuance, especially if the moving party has shown good cause.
Your lawyer definitely should have notified you once he received the judge’s order continuing the trial. From his e-mail, it sounds like he delayed telling you until he received the new trial date. This isn’t a great excuse for the delay, given your travel situation. He really should have told you once he knew the trial was canceled, and then contacted you again when he got the new date.
As to the paralegal stating that they would seek sanctions if the defendant tried to continue the trial again, I imagine that your office and the court cleared the July trial date with the defense lawyer’s calendar in such a way to ensure that there would be no more work conflicts. So, if he tries to pull this stunt again your lawyer will move for sanctions based on the defense lawyer’s false representation that he would be available in July. Sanctions will vary from court to court. Sometimes they will involve money (which the defense lawyer would have to pay personally). Sometimes they will involve striking defenses or witnesses.
Once your lawsuit is filed, the statute of limitations becomes irrelevant. There is no time limit on bringing a case to trial (though courts usually set “aspirational” goals which are not enforceable), so the defendant can try to delay the trial as many times as the judge will allow.
I doubt that your judge is in bed with the defense. His hands were probably tied due to the grounds under which the continuance was sought. If he denied the motion, the defense may have immediately appealed, which would likely stay your case and cause the trial to be delayed anyway. The judge may have let the defense know that if they try to continue the case again for anything but a severe emergency that they would face sanctions.
On the bright side, I’m surprised you were able to get a July trial date. That’s a lot sooner than I would have expected. Of course, you’re probably not the #1 trial on the docket, so unless the cases ahead of you settle or are otherwise disposed of, you may get bumped again regardless of what your lawyer or the defense lawyer do. For your sake, I hope the July date holds.
So what you are saying I am less than a animal,no animal would be treated this way,if it was someone would be going to jail for animal cruelty,is there such a thing as human cruelty???? And I think I would be better off doing what they are hoping I do,END MY LIFE. I have been suffering for since Jan of 2008
Between JUDGES and ATTORNEYS I have no rights,hey just be honest!!
After all honesty is the best policy!!
I don’t know how you read that into my response. I’m not saying that how continuances are granted is fair or right. I’m just telling you from my experience how they work. Believe me, I’ve been plenty infuriated over continuances and other delays which have affected my own cases. Plaintiffs and plaintiffs’ lawyers always want their cases set for trial as quickly as possible. Often, defense lawyers will take advantage of continuances when they shouldn’t. Judges are stuck with granting these continuances under suspect circumstances because there are times when these requests will be legitimate and they often can’t tell (at least not with the proof to avoid being overturned on appeal) when the defense really needs one and when they are just taking advantage of the system.
You have rights and ultimately you will have your day in court. Don’t let the defense frustrate you into giving up. I hope you were just blowing off steam with the comment about ending your own life. If not, please talk to a friend, counselor or call the National Suicide Prevention line at 1-800-273-TALK (8255). July isn’t that far away. You’ve waited this long for your day in court. Don’t give up now. The system isn’t rigged against you. It’s just slow and inefficient. Eventually you will get your day in court.
I have one more question. well its a few but its the last time I will bother you. Would it do me any good to contact the Attorney General’s office or the news media or human right’s activist’s or civil rights activist’s? for some reason there was no reply button on your last comment so I used this one.
I doubt that any of them would do you much good. The AG doesn’t have the power to make any changes in the way your case is being handled or how continuances are dealt with in general. The news media and human rights groups probably wouldn’t be interested because delays like the one in your case are not all that unusual. It wouldn’t shock them in the least to find out that your case has taken over 4 years to get to trial (I’ve personally handled several cases that took longer).
If you want to change the way continuances are handled in civil cases, your state bar association and state supreme court would need to develop and approve a change to the Rule of Civil Procedure which governs continuances. In most states, the bar association has a “rules” committee which proposes changes, which then must be approved by the state supreme court. Some changes which might help avoid situations like yours would be:
Obviously, these are just broad brush strokes and the details would need to be worked out. Unfortunately, even if a rule change occurred, it wouldn’t happen in time to help you, just future plaintiffs.
I just want to thank you for your patience with me. Yes I am very frustrated. These insurance companies get by with murder and they will get by with more if we the people don’t stand up and fight them along with judges and our politicians. I see this country dropping to its knees very very soon. I feel sorry for the rich when it happens. We out number them by millions. This country is doomed and it will be man against man. Maybe God will then save us all.
I have a speeding traffic ticket about 38 in 25 mph zone. My driving history is clean. The court date is a month and more from today. I need to bring that date closer as possible because I want to use the documentation settlement in other issue. My question is how can that be acheived? Can a lawyer does that.
General Q. My husband was in a car accident about a year ago (he was not at fault), he was driving through an intersection (just turned green), when a car coming through the opposite way, ran her red light and hit his car. We had taken him to the ER that night because of pain in his lower back. We had to pay the deductable $500 out of pocket to get the car out of the mechanics (front end was a mess but they replaced everything). The lady at fault, did not have insurance. Now the Insurance is stating because my husband had ‘football injuries’ over ten years ago in his back that it was not her fault – but he has never been to the Dr.’s after football was over. It has been about a year now and my husband has seen the p.t., docs, etc. and has done everything they requested him to do. Our Lawyer just sent over the ‘lost wage’ form but we are only getting a $6K payout (what it looks like), and my husbands medical bills are about $4K and ontop of that the lawyers fees. Is there something we are missing? What happens to the driver at fault with no insurance (in the state of CO you need valid insurance). Can we go after her for any of the expenses? Seems like she is getting off easy, or am I just not in the ‘know’ because we are not being told anything.
While you could sue the person who hit your husband, if she didn’t have car insurance, it’s unlikely she would be able to pay any judgment you may get against her (most people who don’t have car insurance are broke). Most lawyers don’t bother suing the uninsured for this reason. They’d never get the cost of the lawsuit back, much less make any money to pay their clients or their fees.
Did your husband have UM insurance? I assume he did, as Colorado is no longer a no-fault state and you mentioned a wage loss claim. This would be your only avenue of recourse when hit by a “judgment-proof” (broke) uninsured driver. If you have “med pay” coverage, that would pay for some of your medical bills (but not lost wages or pain and suffering).
If your husband’s UM insurer is disputing his claim based on a pre-existing back injury, you don’t just have to accept it. If he has received no medical treatment for his football injuries in 10 years, it sounds like it might be worth litigating this issue. Even if his pre-existing condition hadn’t completely resolved, you can still recover for an aggravation to a pre-existing condition. Your husband’s doctors would need to support the relatedness of his current medical treatment and back pain to the auto accident, of course.
How much your husband’s lawsuit is worth is an entirely different issue. Four thousand dollars in medical bills is not chump change, but it also doesn’t scream “serious injury” (i.e, permanent or requiring surgery). I would hope that your settlement would result in all of your husband’s medical bills being paid, with enough being added for wage loss and “pain and suffering” to cover your attorney’s fees and costs and still put some money in his pocket.
So my lawyer says they have a check for me but it may take another 30days befor i receive it. why is this?
First, see this article. Also, did your lawyer actually receive the check yet, or is he still waiting to get it from the insurer? 30 days is a common time for delivery of a settlement check after an agreement is reached.
If your lawyer has the check, it must clear his trust account — which can take up to 10 business days. He must also pay any medical providers to whom you have given a “letter of protection” or who otherwise have a lien, along with your health insurer, if it paid any accident-related bills. Getting final totals from these lienholders (and trying to negotiate them down) takes time. In some cases, 30 days may not be enough to resolve all the lien issues.
I was in a accident 12/11. The lady hit me from the back while I was sitting at a red light. She said her and her mother was looking in the mirror because the truck behind them was so close up on them….. And that’s when she hit me. I called the cops he told us to go over to the store. He asked the truck driver did he have anything to do with the accident or saw what happen, he sad no. This is 12/17 so traffic is heavy for Christmas. The lady said she THINKS the man hit her but NO damage was on her truck. So got the report call insurance companies then I went to the ER. Few days later her insurance company say she has damage. I call a lawyer cause the said they was not paying. So now we are at the point now where her insurance company has not responded. Whats next is that automatic payment for me?
Well, if you were at a full stop and rear-ended, someone’s going to have to pay. Your lawyer may wind up having to sue both the driver behind you and the truck driver if it’s not clear whether the truck forced her into you. Obviously, the amount at stake depends on how badly you were injured and whether your state has no-fault insurance. For example, in Florida, a no-fault state, you would have up to $10,000.00 in PIP insurance to pay for your own injuries and wage loss, and wouldn’t recover any amounts paid by PIP from the at-fault driver. You’d still be entitled to recover for the damage to your car, and any personal injury damages not covered by PIP.
Did either of the drivers (the lady or the trucker) get a ticket from the accident? If so, that’s most likely the party you’ll wind up recovering from. Most insurance companies don’t dispute liability when their driver is cited with the accident.
That is the problem there is NO info on the truck driver( Poor Police Work). And iam not sure if the lady recived a tickect or not. Even with that isn’t she/Her insuracne suppose to pay for my car damage?
Her insurance won’t pay for the damage to your car unless you can prove that she was at fault for hitting you. If her car was hit from behind and driven into yours (and she would have been able to stop otherwise) she’s not at fault. The full accident report (often you are only given a limited report at the scene) should say whether she was ticketed. It should also indicate damage to the vehicles, with a diagram of the cars — the officer circles the areas on the pictures where the cars suffered damage. If the diagram does not indicate damage to the rear of her car, odds are she wasn’t hit from behind (at least not with sufficient force to drive her car into yours).
If you have collision coverage, your insurer can pay for the damage to the car (minus your deductible) and would then have the right to sue her insurer to recover what it paid. Sometimes they will agree to try to recover your deductible as well.
If your accident was fairly minor, and is mostly vehicle damage, you may not be able to find a lawyer willing to take your case and will have to handle the property damage claim one your own. Your first step should be to get the “long form” version of the accident report from the police, to see what you’re up against.
I won a judgment 6 years ago. My attorney says that he’s awaiting on some back accounts that he sent to be frozen. How long does that take? he also is thinking of going to the sheriff to foreclose on a property. The cost is about 7 thousand. He says that he is waiting on the fronzen bank accounts before going to the sheriff. Why is he waiting? and How long do I expect to get anything from this? It’s been four years already and I have not seen a penny. I’m not sure why he is taking so long to act when the person has properties we can go after. She already sold a property and we could not get a penny out of it because the buyer accepted the properties with all the liens. This frustrated me. Any help or advise for me to understand this? thanks.
I can only guess as to why your lawyer prefers to pursue the bank accounts over the real estate. I would think it’s because if you levy on the bank accounts, you get instant cash, instead of having to auction off seized property. Also, it may be that the real estate is so encumbered with liens (and mortgages would take priority over your judgment lien) that there would be little to nothing left over for you if they were seized and sold. It would be a lot of work for little payoff. If your county has its official records online, you can check to see what liens are filed against these properties to see how encumbered they are.
In short, while it may take longer to get at the bank accounts, as long as they are frozen, the money’s not going anywhere and probably presents the best chance for you to have your judgment satisfied. If your lawyer’s working on a contingency fee, he has every incentive to pursue the quickest and largest recovery possible — so I doubt that he’s dragging this out on purpose.
The difficulties you face are the reason why so many personal injury lawyers, myself included, don’t sue the uninsured, no matter how solvent they may seem. It takes a long time to collect against a person when you have to go after his or her personal assets. Luckily, your judgment will be good for a very long time, assuming your lawyer keeps up with the necessary filings.
thanks for the reply! The property does have some liens but he says that our lien came first so our judgment will be ahead of them. He says that in a month or two he will check if it’s feasible for him to put the $7000 into the sheriff’s fees. I assume he will get that money back if there is enough money left, correct?
I’m not an expert in collection law, so I’m not sure how the fee issue works with the sheriff. Typically, the costs of collection are recoverable as part of such a proceeding, so I would assume that he wouldn’t pay the $7,000.00 if he didn’t think that he would be able to recover that from the levy and sale of the property.
I suffred a Rupture quadriceps tendon requiring surgery. My Attonery has sent out Bill od Particulars to 3 different Defendants Attornet. Does mean a settlement has to agree with the 3 different
Defendants?
No, you can settle separately with each defendant. There are strategic reasons why one defendant wouldn’t want to settle without another, or why your lawyer would not want to settle with just one, but there is no legal reason you would not be able to settle with each one separately (or settle with one and go to trial against the others).
I see you are REALLY helpful and very knowledgeable on this subject. I commend you for offering up what advice you can to people on such complicated and scary issues for people.
That being said, I was involved in a motorcycle accident that required extensive surgery and rehab (about a year and the pain still lingers). The doctor released me and had no answer for the lingering pain other than ‘wait it out’. I have spent a lot of my own money keeping my business afloat during this down time (and probably will need more to keep it going until I am back). My attorney does not think I can collect on this money and views it as an investment I made. I disagree. I would not have had to make the investment if I were not injured.
My question is two fold; Can I collect on money I spent after losing my ability to work to replace myself and other assets with my company? and How much longer will I have to float the company from my personal savings (time estimate from your experience)? I don’t have the capital to support another year of this and think I may be forced to close up shop if I am not reimbursed or made whole (physically) again.
It’s not that you can’t collect lost income just because you are self-employed; it’s just that it’s more difficult to prove due to there being more “moving parts” to your income equation than a typical employee has. A typical “employee” plaintiff that has either hourly or salary-based income must prove one thing to establish his wage loss claim: did his injury affect his ability to show up and perform his job? After that, figuring out the damages is fairly easy.
Conversely, a self-employed plaintiff must also account for all of the other variables which might affect his business’ income: the strength of the economy, fuel prices, cost of goods sold, etc. In your case, you had to hire someone (or pay someone for extra hours) to fill in for you while you could not work. If it were a simple matter of comparing your business’ income from the year prior to the accident to the year after, and seeing a drop in profit that correlates directly with the increased cost of hiring another worker, it wouldn’t be too difficult to prove your claim. Unfortunately, businesses rarely encounter the same exact costs and revenue from year to year to allow such a comparison. If your business had a great year after your accident and turned a higher profit than the year before your accident, you’re stuck trying to prove lost income even though your income technically increased. You can do this, but it makes it harder to explain to a jury. The reverse of this scenario is possible as well, and a defendant should not have to pay for any lost income which occurred due to your business suffering a terrible year after your accident, if that terrible year was caused mostly by market forces. It becomes even more of a mess if the business fails (can you prove that it would have continued on and regained profitability but for the accident).
The bottom line is that you can recover lost income as a business owner, but you’re going to have 10x more explaining to do (both to your lawyer and to a jury) to make it happen. If the only thing you’re trying to recover is the additional cost of the worker(s) who replaced you, that would tend to simplify things, as long as you can reasonably relate the hiring of this worker to your lost time at work (as opposed to an expansion of operations — this would be an investment). If you want to recover other elements of lost income (say the business didn’t run as smoothly even with a replacement worker), you’re going to have a much harder time proving the relatedness of the lost income to your injury.
My advice would be to try to make your lost income claim as simple as possible so that both your lawyer and a potential jury will have no trouble understanding it. Make it clear that the hiring of the additional worker was just to maintain the status quo (from when you could work), and not to expand business.
If your lawyer keeps saying that you can’t recover for the replacement worker, ask him the following: Say I was a homeowner who cut his own lawn prior to the accident. After the accident, I could no longer cut my own lawn and had to hire a service. Are you telling me that I would not be able to claim the cost of that service as damages? (Answer: you could). You are allowed to recover all reasonable damages caused by the tortfeasor. If your lawyer tries to say that the self-employed can’t bring a lost income claim, get a second opinion. In my opinion, the cost of hiring of a replacement worker is definitely a recoverable element of your damages.
As to your second question (how much longer must you float your company), I can’t say because I have no idea what the current posture of your case is. Has a settlement demand letter been sent out? Has suit been filed? Has discovery been completed? Have you mediated?
Reading through these post and seeing your responses made me want ask my questions. Almost a year ago my dad was in a car accident, he was a passenger in the car but the other party was at fault. His friend’s car was totaled on the scene.. However, maybe a month or two, his friend received a settlement of about $23,000. When this accident took place my dad had suffer many injuries, including a permanent (according to his doctor) injury. He had lost the use of both his hands for a couple of months, where as he had to be off work because they both were in cast. He also had cuts above his eyebrows and on his leg (stitches were needed).. He has finally completed his paper and has been released from the doctor saying he has permanent injury and will not have the same strength in his hands. As of current, His lawyer tells him that unless the insurance pays out 100%, he will not receive much. He stated that they will only pay out what the policy is worth and he could not get any more than that. Why is that? If the party who was at fault insurance will only pay a portion, shouldn’t my father be able to go after his friend’s insurance company? I guess I am trying to understand if someone has a policy for $100,000 and the insurance also only pays per claim/incident; if they pay one person $25,000, are they saying the other person who may have suffered more injuries (pain and suffering) is only allowed $75,000 because of the policy amount? Please help me understand…Thank you
The liability insurer for the at fault driver will not pay more than the bodily injury policy limits provide. Technically, your father can sue the at-fault driver for the full amount of his injuries, but realistically, most drivers (especially those with low BI limits) can’t afford to pay any judgment above their policy limits, so it usually isn’t worth the time and effort of a trial to do so. There are generally two types of policy limits issued for bodily injury liability coverage: split limit and combined single limit. The at fault driver will have one of these two types, and how much coverage is left for your father will be affected by which type the at-fault driver had.
Split Limit
Most bodily injury liability policies have a split limit. If you look at the policy declarations page, it will look like: “25,000/50,000″ or some other combination of a smaller number followed by a larger number. The first number is the per person limit. This limits the total amount of money any one plaintiff can recover under the policy. The second number is the per accident limit. This limits the total amount all plaintiffs can recover collectively under the policy from a single accident. So using the 25,000/50,000 example, here’s how it works in three different scenarios:
So, if your father and his friend were the only two plaintiffs and the tortfeasor had a $25,000/$50,000 split limit policy, both your father and his friend would be able to recover no more than $25,000 each.
Combined Single Limit
A Combined Single Limit (CSL) policy will only have one amount listed as the bodily injury limit, and it is treated like the per accident limit in a split policy, with the exception that each plaintiff doesn’t have an individual limit placed on how much he can recover. So, if the tortfeasor in your dad’s case had a $50,000 CSL limit and settled with the friend for $23,000, there is now $27,000 left to pay your father.
Other Insurers Who May Have to Pay
Unless your dad’s friend was partially at fault for the accident, his bodily injury insurance won’t cover any of your dad’s injuries. Bodily injury insurance only pays when you are at fault.
Uninsured/Underinsured Motorist (UM) coverage is a different story. If your father owned a car at the time of the accident, and he had UM coverage, that would be an additional coverage from which he could seek compensation. Also, in most states, if your father’s friend had UM coverage, that too would cover your father. I’ve seen one case out of Tennessee where a UM insurer was able to deny the claim of a non-relative passenger, but in most states all passengers, relatives or not, are covered by the policy of the owner in whose car they were riding.
Bad Faith
Short of the bodily injury carrier committing bad faith in failing to timely accept a demand for policy limits from your father’s attorney, I don’t see any other way for your father to recover more than the remaining BI limits (unless there is UM coverage available, as stated above).
I hope this helps you understand what’s going on with your father’s case. If not, feel free to ask a follow up and I’ll try to clear it up for you.
So the Property Damage Liability Insurance for the at fault party, would that not cover my dad’s friends car? His friend should have had two different checks that came from the at fault party insurance provider, one from his car being lost and then the other from the BI, right? If so, then would my dad’s amount maybe increase since the policy is paying from 2 different parts of the policy?
If part of the $23,000 settlement your father’s friend received consisted of a property damage settlement for his car, that part would not count against any bodily injury limits. It would come from the separate property damage coverage, as you thought.
Once my attorney servers the defendant with the “Bills of Particular” what is the next step in the process and how long should it take for the defendant attorney to response?
“Bills of Particulars” are only used in a handful of U.S. states anymore — as the “motion for more definite statement” and discovery have really made them obsolete — but New York is one of the remaining jurisdictions that still uses them (I saw that you have a New York internet provider). In New York, the recipient of a Bill of Particulars has 30 days to respond (CPLR 3042(A)) from the date of service.
My accident was on July of 2011. My lawyer advised me to go to the chiropractor and i have been going for about 8 months now. I finished my sessions at the chiropractor and they have send out my file, with my medical information to the lawyer. I don’t want to get lied to or anything by this lawyer, because this is my first time ever dealing with legal matters, so that is my biggest fear. I have been calling the office for the past 3 weeks trying to find out what happens now, or what the next step should be, but they tell me that they will call me back all the time. Until today, when i called again,and the receptionist told me that, it might be months until the lawyer gets to my case, and that there is a 2 year limit for the case to work on, so i still have until 2013!!! this is unbelievable, and crazy. All i want to know is that they are not lying to me, because i am worried, and if there is anything i should know, or do. And also, if this lawyer takes forever, can i transfer my case to another lawyer. I’ve read about it, and it it says that if the lawyer has not started on the case, he can not charge me for any work done. Keep in mind, i dont want to change lawyers, i am just concerned on how long it will take because these type of things make me nervous.
Thank you.
The “it might be months until the lawyer gets to my case” line is a big red flag that your lawyer probably has too many cases, and shouldn’t have taken yours on. The fact that your statute of limitations won’t run until 2013 is no reason for your lawyer to ignore your case for months.
After you finished your chiropractic treatment, assuming that you are at MMI, the next step for your lawyer would be to send a settlement demand letter to the insurance company for the at-fault driver. This is something that shouldn’t take months, as most of the time these letters are written by paralegals and are only fine-tuned by the lawyer.
Before looking for another lawyer, try the tips I suggest in my article about lawyers not returning phone calls, specifically the scheduling of a phone conference with your lawyer or a face-to-face meeting. Discuss with him personally (not through the paralegal) what the next step in your case is and when he expects to accomplish it. If he’s still talking about it taking months (without a damn good reason), see if he’ll agree to let you out of your contract so you can find a lawyer with a lighter caseload.
If you fire him, he may still be able to assert his right to fees from you (assuming you ultimately make a recovery in your case). These fees would be based on an hourly rate for the time he put in on your case, also known as quantum meruit, and not the percentage stated in your contract (though quantum meruit fees are capped at the fee percentage stated in the contract, so the lawyer can’t get more than he would have under the contract). It will really come down to 1) whether he intends to bother asserting this claim and 2) whether a court finds that his termination was without “good cause”. An anticipated delay in the prosecution of your case for several months due to the lawyer’s workload would be good cause in my eyes, but I’m not your judge.
If your lawyer hasn’t filed suit yet (I assume he hasn’t), he shouldn’t be able to assert a charging lien on the proceeds of your case (this is a lien on your recovery which a subsequent lawyer would have to honor — if it is held valid by the court, your new lawyer would need to pay your old lawyer at the time he disburses your settlement money). However, depending on your fee contract, he may assert a retaining lien on your file, which allows him to hold on to your file until his costs (not fees) are paid. Usually, this won’t be a problem, as a subsequent lawyer will pay the costs to assume your case. He’d likely have to pay those same costs anyway if he were to try to assemble a new file on you from scratch (such as the cost of medical records).
So, my advice is to try to work it out and light a fire under your current lawyer through a phone or in-person meeting. However, if it still seems like he’s not going to pursue your case in a timely manner, ask to be let out of your contract. If he says no, then fire him, find another lawyer (don’t forget to ask my 2 questions this time!) and deal with the fee issue later.
Good Evening!
Firstly, thank you for the excellent article! It definitely puts my mind at ease somewhat regarding delays.
I will do my best to keep my question very brief (hopefully):
Four months ago I was rear ended pretty hard by a drunk driver in a school zone while I was at a dead stop at a stop sign. We have confirmed evidence in the police report that he was extremely intoxicated and cited/arrested for this.
While I had very irritating but not seriously debilitating lower back pain before the accident, I was otherwise fine. After the accident, my back pain increased twenty fold to the point where I cannot sit, sleep, or even stand for very long. I continuously get dead spots and numbness in my legs. Forget anything more strenuous than a short walk!
I also began to experience excruciating pain in my neck that regularly causes paralysis in my right arm.
Further medical investigation from an MRI scan revealed that I have 2 badly herniated and bulging disks in my neck that are aggravating nerves that control arm function and caused a permanent curvature. While apparently I had very minor arthritis in my back (Bah, at 22 years old!), the scan also revealed 3 herniated and bulging disks in my lower lumbar that are severely restricting my mobility.
A GP, Chiro, and Orthopedic doctor all concluded that the herniation/bulging in back discs and entire neck damage was caused by the accident.
I have only been able to work a partial schedule because of my injuries and I am not able to make rent! At first the insurance companies were both claiming that I have made this up, as the damages to my car were only about $1000 (keep in mind my car is also 11 years old. Its not a beauty queen, that’s for sure!) but MRI results and 3 doctor conclusions later…well, the proof is in the pudding.
(For the record, the doctors are now treating me with powerful steroids, they are trying to avoid surgery although it may be a possibility.)
The drunk driver who slammed into me has a 30,000 policy limit just the same as I do. Ironically, we BOTH have the same insurance company which has really seemed to complicate things.
So what’s my question to you?
1) My lawyer seems *extremely* confident that the insurance company will fold quickly and settle for the $30,000 policy maximum to cover my four months of losing half my pay (probably about $4000 alone), medical, and the whole nine yards. While I understand every situation is different and you are not the consulting attorney, what is your opinion?
2) Three years ago when I signed up for my insurance as a dumb, broke kid, I signed away my right to PIP (I know, feel free to mock me now). My attorney says this will not be an issue since I have substantial UI coverage. Thoughts?
3) My lawyer also seemed way more concerned with my UI coverage than attacking the other driver’s policy even though he has already been considered at fault… When I questioned him about this, he briefly glossed over that he would be hitting him too, but my UI coverage would pay for most of it. Does that sound weird, or did I just misunderstand something basic?
4) After this my lawyer is also going after my health insurance who has so far been paying for most of my medical attention and treatments, however has denied me short term disability (I have fees deducted from my paycheck every month to have this extra coverage with my health insurance company). He plans on attacking them as well once we are done with the car insurance warfare. Thoughts? Is this commonplace?
So that wasn’t very brief… but if you could find the time to throw me a bone, I would be so appreciative!
-Aedion
I think your lawyer feels that the defendant’s insurer will cave due to the clear liability of the defendant, the seriousness of your injuries, and the insurer’s exposure to a bad faith lawsuit if it doesn’t immediately tender its policy limits. The only concern I have is the fact that you have not been considered for surgery. I’m no doctor, but in my experience, once you start having severe radiculopathy (the occasional “paralysis” in your arm), surgery is likely needed to correct this — it means one of your herniated discs is impinging the spinal cord, or at least some significant peripheral nerves. Non-surgical cases tend not to be worth near as much as surgical, so that would have a significant impact on your damages.
Just to be clear, I’m not saying that you should have surgery just to boost the value of your case. I’m just hoping that while your doctors are being cautious and hoping that you can recover through non-surgical means, they are not discounting the likelihood that you’ll eventually require surgery. You don’t want to settle your case for a “non-surgical” value only to find out that a year later your doctors are going to say “looks like you really do need surgery”.
That being said, given the limited info you’ve presented, you’re lawyer is probably right about the defendant’s BI insurer caving quickly. Herniated discs are serious, and I don’t think the insurer will want to gamble with the unlimited exposure it would face in a bad faith lawsuit over $30,000.00.
I’m betting that your lawyer is focused on your UM insurance (that’s what we call Uninsured/Underinsured Motorist coverage where I practice) because he considers the defendant’s BI insurer to be a given. It’s not that your UM insurance will pay more than the BI insurer. In fact, your UM insurer’s liability doesn’t even start until your damages exceed the BI insurer’s limits — so your UM insurer only pays for the value of your case which exceeds $30,000.00. Your lawyer is probably most concerned about the UM issue because he’s going to have to prove that a non-surgical case (as of now) is worth more than $30,000.00 to convince them to pay anything. It’s not that the UM claim is more attractive or more valuable. It’s just that it will require more work for him to get them to pay than it will for the BI insurer.
As to your short-term disability coverage (which is a completely separate coverage from your health insurance, even though the insurer may be the same for both), if you got your policy through your employer, it’s going to be governed by federal ERISA law. If your claim has already been denied, and it’s an ERISA policy, you only have 180 days to appeal the denial of your claim (you appeal to the insurer) or you lose the right to sue them. So, don’t wait too long to address the short-term disability claim. Most personal injury lawyers are not well-versed in ERISA law, so don’t assume that your lawyer is (many wrongly think that they are handled like any other breach of contract claim against an insurer). You may need to hire a separate lawyer to pursue the short term disability claim — one who regularly handles ERISA disability cases. Make sure your lawyer knows what he’s doing for your short-term disability claim before it’s too late.
One final thing — if you do recover short term disability benefits, you’ll likely have to pay the STD insurer back from your personal injury recovery, just as you have to pay back your health insurer.
My daughter had arthroscopic hip surgery that was healing well and was a success; she had just met with her surgeon 2 months post op. Everything was going great.
Then a car t boned her a week later, it tore open her hip capsule where the stitches were and possibly re tore her labrum, plus fractured her tibia, a hematoma in the temple area and a mild concussion.
She ended up having to have an open hip procedure done to fix the damage. The surgeon said it was consistent with the accident.
The persons insurance co. agreed to pay the policy max which was $25,000 now our attorney is going to submit to our um policy for our max which is $100,000. Her bills for the operation ect. are around $70,000, although she may need another surgery plus she became majorly depressed due to having to pull out of school again and not being able to do anything because she was in constant pain. So there are Dr’s / hospital chargers due to the depression also which could be a grey area. I think they want to add all of this to the claim but at that point there wouldn’t be enough. So in the end I assumed she would get nothing except of course the pain that she still has.
She is doing well on Lyrica though and is living life again.
The attorney’s office said there is a stipulation that makes it so the injured do get a % of the award. Can you explain this and how they come up with the percent. We live in Tennessee.
She is 8 months post op from the open and 21 months post op from the original surgery. The open was horribly painful for her, she was in a wheelchair for a while.
I’m really not sure what the attorney is referring to when he says stipulation. Usually, stipulations are private agreements, not statutes or caselaw. He may mean that he has reached an agreement with the health insurer to divide the settlement proceeds so that he, your daughter and the health insurer each receive a certain percentage of the total settlement. He may mean that he has a stipulation in his fee agreement that will reduce his fee to ensure that your daughter receives a certain percentage. Neither of these types agreements would be subject to a standardized formula (as they are not required by statute or common law), so how he would arrive at the percentage allocated to your daughter would be purely a matter of negotiation.
From my own research, it appears that Tennessee applies the “common fund” doctrine to health insurance reimbursement claims (even ERISA-based claims), meaning that the health insurer would have to reduce its claim by the percentage of attorney’s fees charged by your daughter’s lawyer. This, in and of itself, would not guarantee that your daughter would receive a certain percentage of the recovery — a large enough lien by the health insurer, even reduced by attorney’s fees, could still equal or exceed the total amount of the settlement. Therefore, I can only assume that when the lawyer refers to a “stipulation”, he means a private agreement such as the kind I just mentioned.
It is not uncommon in cases involving serious injuries, large liens and inadequate liability insurance for there to be a three-way split of the proceeds (1/3 to plaintiff, 1/3 to lawyer and 1/3 to health insurer). Of course, this largely depends on the generosity of the health insurer and the negotiating skills of the lawyer.
If you can, find out from the lawyer some more specifics about this stipulation and what percentage is being guaranteed to your daughter. I can’t really shed any more light on it without more information.
My lawsuit was settled in New Jersey on march 26th. When we agreed to the settlement, they were to cut two checks one to me and the other for my attorney for his fees. It said the checks were to arrive in one week after paperwork was signed. Its now april 24 and we still dont have the checks. My attorney said he is going to call the Judge to complain. Is there any other action I can take to speed up the process? They are well passed the week that was in writing.
There’s not a lot you can do to speed up the process. It sounds like your lawyer is doing all he can — he may to file what’s known as a Motion to Enforce Settlement Agreement if the checks don’t come soon. At this point, it really boils down to two things: (1) the insurer owing you interest on the late payment and (2) whether it’s worth it to void the settlement due to its noncompliance — which won’t get you your money faster as now you’ll likely have to wait for trial.
You may be able to file a complaint with the state department of insurance. If this insurer has been slow-paying other plaintiffs (who also complained), some disciplinary action might result. Such a complaint might also bring your issue to the attention of someone at the insurance company who will take it seriously.
I just got word that my lawyer has a check with my name on it and I need to come in and sign it for closing but now i’m being charged 40% and not the 33% we spoke about . I looked over my contract and it wasnt stated there. I just dont understand how she will get back more than I do. Her services where not that good. Please help me understand this better.
Be sure to review your contract carefully. Fee contracts that automatically increase from 33 1/3% to 40% after a lawsuit is filed are fairly common. To trigger the 40% fee, usually the defendant needs to file an Answer to your Complaint (and in many cases, that Answer must deny liability — check your contract). So, if your lawyer filed a Complaint, but the defendant didn’t file an Answer before you settled, there’s a good chance your fee should still be 33 1/3%. Of course, if your fee contract does not state that the fee will increase to 40%, you should dispute the increase.
As to your lawyer getting more than you from the settlement, I assume you are not including the part of the settlement going to pay back your health insurance or to satisfy any letters of protection. Any amount going to the attorney’s costs are not a profit to her, as she had to incur those costs in order to deduct them from the settlement. I have a feeling that the amount paid for your benefit, in addition to the amount paid directly to you, exceeds your lawyer’s share (unless her costs were unusually large).
In any event, if you agreed to this fee structure in your contract, you don’t have much reason to complain about it now. If you were unhappy with the amount of the settlement your lawyer obtained for you, you shouldn’t have approved it. Now, you may not have realized how much was going to be deducted from the gross settlement to satisfy attorney’s fees and medical liens, but this is something every client should ask about before agreeing to a settlement. If you didn’t ask your lawyer “how much will I be paid from this settlement” before agreeing to it, you share in the blame for the poor outcome.
I’m the process of a slip and fall lawsuit requiring surgery. My attorneys are meeting with the defendant’s attorney, my questions – what is normally discussed during this meeting and how long does it take for a deposition date to be set?
Thanks you.
There could be any number of reasons for the attorneys to meet. In federal court, the attorneys meet very early in the lawsuit for what’s known as a “parties planning meeting”, at which they discuss scheduling matters, such as discovery deadlines. Your local court may have a similar requirement.
As to when your deposition will be set, expect to be have to answer some written discovery first, such as interrogatories. The defense will also need time to obtain your medical records, which they’ll subpoena directly from your medical providers, before scheduling your deposition.
The initial written discovery and medical subpoenas are usually sent out fairly early on in the case. You will have 30 days to answer the written discovery directed to you. Subpoenas usually allow less time than that. Expect your deposition to be set after you answer this initial discovery (assuming there aren’t any issues with your answers which might cause the defendant to file a Motion to Compel better answers). Exactly when it will be set after the initial discovery is finished will depend on your attorney’s and opposing counsel’s schedules. Frequently, the lawyers will want to do more than one deposition at a time, so they’ll find a day when both of them have all day long to devote to depositions. This can cause some delays, but once your deposition date is set you will receive notice of the date (though hopefully your lawyer will clear the date with you in advance).
So, long answer short, you should know when your deposition will take place shortly after responding to the defendant’s initial discovery.
My deposition date has been set. My question – I am suing five different defendants (all part of the same law suit), will all five attorney ask me questions during my disposition? If the defendants want to settle, dose the action help the defendants pay out less?
Thank you..
Yes, all five attorneys will be allowed to question you, but it’s probably not as bad as you think. They’ll each go one at a time (not all at once), and usually the first attorney will cover most of the things the others need to know. The others will just ask follow-up questions or ask about things the first attorney may have missed — or things that are specific to their own client. They won’t ask you the same questions over and over.
As to settlement, the short answer is that having multiple defendants does help each pay less, especially as to economic damages, such as medical bills. There are complicated legal issues which vary from state to state which govern how damages are apportioned among multiple defendants should the matter go to trial. In some cases, two or more defendants will be responsible for all damages on a “joint and several” basis, meaning that each defendant is responsible for the whole of your damages, and that payment by one will reduce the amount you can collect from the others proportionally (no double-dipping).
If damages are apportioned (not “joint and several”), each defendant is liable for your damages based on his percentage of fault for your accident. So, if you have three defendants with the percentage of fault being split 50%, 30% and 20% among them, each of these defendants will be responsible for paying only his or her percentage of your damages (and a settlement with one would not affect the amount the others have to pay).
This can get even more complicated, because some of your damages may be handled on a joint and several basis, and some may be apportioned. For example, your state may treat economic damages as joint and several, but non-economic damages (pain and suffering) as apportioned. So, if you settle with one defendant, the other defendants may get a set-off as to your economic damages, but not as to your non-economic damages.
I’m sorry if this doesn’t make things clearer for you, but you’ve asked a simple question with an extremely complicated answer, depending on the state and the sources of the defendants’ liability. I may take a stab at writing a whole article about this, because it’s a subject that would require a very long and thorough explanation.
Whats happens when the insurance company ignores my attorney? whats next..?
Your lawyer files suit. That will get their attention.
then they will”settle”…? Its been since October…
Not necessarily. However, they will have to hire an attorney to defend the lawsuit and they won’t be able to ignore your lawyer any more. Whether they will want to settle or not depends on many factors, such as how clear the liability of their insured is, the severity of your injuries and the amount of insurance coverage available. See this article, which discusses the value of your lawsuit, to see what factors the insurer will consider.
Even if the insurer doesn’t want to settle, at least filing suit will start moving your case forward towards trial.
Hey I just got a letter from my lawyer it says in part of the letter ‘ We need you to be in our office at 12:30 so the attorney can prepare you for the deposition.’ What does this mean? And what should I expect to happen? I have social anxiety and I really don’t wanna ruin my chances of winning because of my disorder
You should read this article and this article, both of which deal with preparing for and giving your deposition. The prep meeting isn’t stressful at all. Your lawyer will basically give you the advice I’m giving you in these articles.
As to the deposition itself, try not to get too worked up about it. Everyone is a little nervous while being deposed, even lawyers (yes, we occasionally get deposed). Usually, depositions are done in an informal setting (a court reporter’s office or your lawyer’s office) and most of the time they aren’t really confrontational. You just have to answer the defense lawyer’s questions as best you can. It’s not a test. “I don’t know” and “I don’t remember” are perfectly acceptable answers. Your lawyer will be there to keep the defense attorney in line, if necessary, but he won’t be able to help you answer questions during the deposition.
If you still have questions after reading those articles, feel free to ask. I think that knowing what to expect will help alleviate some of your anxiety. It’s really not that bad. I’m sure that you’ll do fine.
I have asked my attorney on numerous occasions the amount of damages we are suing the defendants for.
My attorney refuses to give me an amount. Why is my attorney taking this approach?
Thank you for all your help during my Law suit.
In some states, like Florida, you don’t specify the amount for which you are suing in your Complaint. You just state that the value of the case meets the jurisdictional requirement of the court (e.g., in Florida you only plead that the value of the case “exceeds $15,000.00″ if you file in circuit court). So, when you ask how much you are suing the defendant for, the answer may be “as much as we can get,” because you haven’t specified an amount. The real questions are:
Some lawyers are reluctant to tell their clients exactly how much they ask for in settlement demands because they will always start way too high and don’t want the client to get the impression that the demanded amount is the actual value of his case. At a minimum, though, your lawyer needs to get your authority to settle for a certain amount before making any demand. So, if you give your lawyer authority to settle for $25,000.00, he can make settlement demands in any amount equal to or above that (and will always start a lot higher). You can get a good idea of how much your lawyer thinks your case is worth from how much he requests in settlement authority.
If your lawyer is making settlement demands and has never gotten authority to settle “at or above” a certain amount from you, and you were not foolish enough to give him authority to settle the case for “any amount he deems fair”, he’s violating the rules of ethics.
I need your help……………I NEED SOME ADVICE ON A CASE I WAS IN VOLVED IN A BUS ACCIDENT IN 1994 APRIL NOW IS JUNE 2012 CASE STILL GOING ON ….HELP
I’ll need more information (and a more specific question) to help you. I’m pretty surprised to hear that an injury claim from an accident that took place in 1994 is still ongoing. I’m assuming that you have a lawyer and that a lawsuit was filed on this case, yes? Has the case gone to trial yet? Did it go through an appeal (maybe more than one)? I need to know the current status of your case (at a minimum) to answer any questions. You’d probably get a better answer directly from your own lawyer. If you’re having trouble with him returning your phone calls, read this article. I’d be glad to help as best I can, but I need to know what your question is.
I fell in a pothole in April 2009, I have a lawsuit against the city of Ny and A gas company. I have had a second surg. on my right ankle on April 24th 2012. I’m going again for PT. I have been to 2 depos and had two Imes prior to my 2nd surg. Question- this has been more painful and i had suffered more. I need to ask you a question I have lost my job and now have to pay all the medical bills what happens to the valve of my lawsuit. What can I do. secondly, Why is this lawsuit taking so long?
[I added this from your second post -- fl_litig8r]
I also forgot to mention that i’m a nurse who was on my feet all day. I dont believe I can work full time again. When i am cleared to go back to work and find a job i will ask for part time only. my Lawyers will meet again on june 19th what am I excepting from this next hearing.
As to your first question about losing your job as a result of your injuries, lost earnings, both past and future, are damages you can recover. Now, this doesn’t mean that you could choose to not work at all just because you are not capable of performing your previous occupation. If you are capable of work that pays less, such as the part time work you plan to resume when you’ve sufficiently recovered, you can recover the difference between the earnings you made prior to the injury (adjusted going forward for anticipated pay increases) and the earnings of which you are now capable. You may need a vocational rehab expert, an economist, or both, to prove this issue — especially as to future lost earnings, which can be significant.
I’m not sure you’re asking this, but if you lost your health insurance and need medical care while your case is still pending, you could try a letter of protection. If you’re asking whether you can recover the value of the lost health benefits as an element of damages, that would be included in your lost earnings. Of course, if there are jobs you can perform that would earn you more money than part time nursing work, and that do provide health benefits, these would be the jobs the jury would consider in determining your lost earnings. You can’t recover damages that you can mitigate through other gainful employment just because you want to stay within your chosen field. As long as you have training and skills that could be applied to other more gainful employment, the jury will use that type of employment in determining your damages.
As to why your case is taking so long, it’s very likely because you just had another surgery in late April 2012. You are probably not even at maximum medical improvement yet, which is necessary to know the full extent of your damages and the value of your case. It is a bad idea to settle a case before the plaintiff reaches MMI, as there may be complications which increase the amount needed to fully compensate you.
Regarding the June 19th issue, I can’t tell you what this is, as it’s not clear to me whether this is a client meeting with you, a meeting with the other side, or a court hearing to which you refer.
What should I do as an OR licensed Massage Therapist with liability insurance, if I receive a sexual assault & Battery Civil Lawsuit settlement letter?
Notify your liability insurer immediately. Failure to do so could allow it to deny coverage for the claim. Your insurer will obviously want to interview you about the claim, as it will need to know whether to try to settle it or fight it (they will provide you with a defense attorney if needed).
I know this is a civil settlement request, but because the alleged conduct could give rise to criminal charges you may want to consult with a criminal defense attorney as well (you would have to pay for this on your own). Depending on how “at risk” you feel about these charges, you may want to consult with the criminal lawyer before talking to your insurer — but do it very quickly because timely notification of the insurer is essential to preserving your coverage.
Thank you!
She is claiming that I massaged her breasts. It was a full hour massage. I left afterwards to go to another massage. The staff never saw her leave. But She left me $10 tips, which my spa owner and another employee collected for me after she left. Then a few hours later she had her friend call and accuse me of massage her breasts. That was back in March.
The letter was sent to me on 5/21. So I have about 3 weeks. I have contacted a local criminal attorney and he suggested I contact my insurance right away and a civil attorney.
So you feel I should contact him again and have him look at my case Monday, before I contact my insurance?
If you’ve already discussed the facts of the case with the criminal lawyer, it should be o.k. to contact the insurer without talking to him again. Understand that your first comment didn’t say whether you were denying the accusation, so I didn’t want to assume that you did. If there was any gray area as to whether you did anything wrong, I didn’t want you to tell your story to the insurer and risk saying something that could support criminal charges without first running this by a criminal defense lawyer.
As it appears that you are flatly denying the alleged wrongdoing, there’s a lot less risk in talking to the insurer. I really wouldn’t let any more time go by before notifying the insurer. It would also help to talk to your co-workers so that everyone’s on the same page as to what happened (make sure that no one’s going to contradict you). Do not ask anyone to lie or exaggerate for you. This includes asking someone who has no direct knowledge of the facts to back up your story (even if it’s true). If it comes out that co-workers lied on your behalf, people will assume that you’re guilty even when you’re not. This is just a warning. I’m not assuming you would do this. Sometimes friends offer to “help you out” by backing your story even when they don’t know anything. Be sure to turn down any such offers and tell everyone you just want them to tell the truth.
There’s no need to hire your own civil defense attorney. As I said before, the insurer will hire one for you if it’s necessary. Depending on the policy language, it may also hire a lawyer to represent you should this issue be brought before your licensing board.
They are asking $10,000 I think that is according to Oregon Law. I am insured up $1,000,000.
Do you predict my insurance Co. will pay them or fight it? If they do, then it could/will go to trial then?
I am very Thankful for your time and help.
I would expect your insurer to fight it unless they can get rid of it for “nuisance value” (like $500.00). I doubt that this is a case that would go to trial, mainly because it isn’t valuable enough and at best it’s a “he said/she said” case. Unless the plaintiff’s lawyer is a relative or has some other personal relationship with the plaintiff, I can’t see him (or her) wanting to even file a lawsuit over such a claim. They may be hoping to just get whatever they can as a settlement based on the demand letter and a few phone calls.
I’m sorry I was confusing with my frist questions to you. Frist of all, I didnt lose my Job due to my Injuries it was unrelated to my injuries. My question to you because I lost my Job prior to my 2nd surg how will this affect my case? Secondly, my surg will write that I can only go back to work part/time as a Nurse when I can find a Job due to the fact it is difficult being on my feet all day due to the injury of my Right feet. Will that hold any weight regrading my case? Thridly, The marjority of my medical Bills were pd from the onset of my Injuries 04/09/2009-March /30 /2012.(as a lein attached to it already) thats when I lost coverage except for the bulk of the surg, aftercare all the Pt sessions, which I was told I will need more an addittional 4 wks worth. this will have to be pd as you explained before as a protection letter against my lawsuit. My question the medical is now up to at least 25000 from the start of all this. As of June 19th I was told from my Lawyers that they will be given the signed medical release forms from me to the other Atty’s so they can get my medical records from the lastest surg with the exception of the Pt because I’m not done with them yet. Is this common and in Your opinion what happens next. When doe they start talking trial and/or mediation dates. 1 more question what if one of the lawyers want to settle frist and not the other (I’m suing 2 parties) can they or do I have to wait for both of them to make up there minds. And do yyou think there will be another IME in my future? thank you again Diane
Because you didn’t lose your job due to your injuries, obviously any lost wages attributed to your unrelated job loss aren’t damages you can recover in your lawsuit. However, because your injuries affect your ability to work in the future, you can still recover for your impaired earning ability — it just becomes more difficult to quantify (when would you have found a new job? would you have been able to find a job in your field but for the accident? etc.). Your surgeon’s opinions about your current ability to perform your job will carry weight. In fact, such an opinion would be necessary to support a “future wage loss” claim. The defendant can dispute your surgeon’s opinion using his own medical expert, such as an IME doctor. This becomes an issue of fact for a jury to decide should a trial be necessary.
It’s not unusual for plaintiff’s lawyers to give medical releases to the defense to allow them to obtain your medical records before a lawsuit is filed (after a lawsuit is filed, the defendant can obtain them using a subpoena). Personally, I don’t give medical releases to the defendant. I obtain the records myself and then forward them to the defendant. I don’t like the possibility of the defendant seeing my client’s medical records before I do (in case there’s an error which needs to be corrected, for instance). I would never give the defendant an open-ended medical release (one which is good for a certain period of time, like a year) — I would make the release good for only a single use. This way, you know the defendant is only getting records up to a certain date, and that it can’t keep updating them without your knowledge past that date — again, this is because I want to see the records before the defendant. Many lawyers don’t have a problem given defendants open ended medical releases. It’s really just a matter of opinion and personal preference.
With respect to mediation and trial dates, neither of these may be necessary. Many cases settle just through informal negotiations before a lawsuit is ever filed. Sometimes the parties will want to mediate before a lawsuit is filed. Most of the time, mediation won’t take place until the lawsuit is filed and the parties have had the chance to engage in some discovery, such as interrogatories and depositions. It’s usually several months after the lawsuit is filed before the parties set a mediation date. As to trial, expect that to be at least a year and half (probably longer) after you’ve filed a lawsuit.
To answer your question about settling with multiple defendants (you sure did manage to squeeze in a lot of questions here), you can settle with just one and proceed with a lawsuit against the other. You don’t need them both to agree to settle. Of course, sometimes there are issues which make it impractical for one defendant to settle without the other, such as a case where one defendant is merely “vicariously liable” for the actions of another. These are strategic and practical barriers to settling separately, not legal barriers.
As to your last question about whether you will need to undergo another IME, I would not be surprised if you will, given that you’ve had another surgery recently. The defendant may need another IME to determine your current level of functioning in light of the new surgery and physical therapy.
My husband is going for a jury trial in a few weeks. The insurance co. is only offering $30,000 when the limit is $150,000. Can a jury award more money than what was offered? I hope so!
Yes, the jury can award more. In fact, if you are referring to a third-party insurer in a personal injury case (such as a defendant’s automobile insurer), the jury can award more than the policy limits. This would result in what’s known as an “excess judgment,” and any amount awarded above the policy limits would be a judgment against the individual defendant. In some cases, this excess judgment could result in a bad faith lawsuit against the insurer (and the insurer could have to pay the full judgment, regardless of policy limits).
Our attorney is going for the $30,000 since thats the highest offer. I just wanted to know if the jury can award above that amount if they wanted to.
My husband also has 2 herneated discs in the L4 and L5 that didn’t bother him too much until about 6 months later. He woke up one morning and couldn’t move because of the pain. The lawyer won’t bring this to the courtroom because he claims that my husband waited too long to have this evaluated. It took several referrals and months of waiting to see the specialist. MRI concluded the results. I wish now that we could get another lawyer but unfortunatly we cant.
Delays in reporting, diagnosing and treating injuries make it very hard to relate them to an accident claim. I don’t know that I would consider a 6-month delay to be prohibitively long, but if your husband never reported any back pain to any doctor during this time I think it might be a tough sell to a jury. If he had reported back pain soon after the accident, but just didn’t get a diagnosis until 6 months later, that’s not nearly as bad. However, from your description it sounds like he didn’t have the pain until well after the accident. Your lawyer probably thinks that trying to include this claim may damage your husband’s credibility with the jury and hurt his chances to recover for his other, more clearly-related injuries. I can’t say that he’s making the wrong call (he’s in a better position to know).
A jury can award more than the plaintiff’s lawyer requests (assuming the facts support a higher award), but they usually don’t. Of course, usually the plaintiff’s lawyer asks for as much as the facts will support, so this isn’t an issue.
I was injured in a car accident early 2010 by a drunk driver. Since then I was in an out of doctors offices, therapists, etc. Finally in March I was released by the pain management doctor who was the last of the bunch.
I received a letter from my attorney letting me know they are in the process of obtaining medical records etc. and letting me know of the next steps.
In this letter they also requested the following: “We would like you to prepare a letter addressed to “To Whom It May Concern” explaining in detail how the injuries you received have impacted your daily life.”
I am hoping you can help me with this because I have no clue where to start or what to write or say. Are there certain things I should focus on more than others, is there certain terminology I should use? I have never had to do this before and I am not sure how to even start this off.
Your help would be so greatly appreciated.
Thanks!
Don’t overthink this. It’s very likely that your lawyer isn’t planning on sending this letter to anyone (unless it’s really good). It’s more likely that he’ll just incorporate some of the things you write into his demand letter. So, don’t be concerned about “proper terminology” and just try to write it in your normal voice.
As a suggestion, after a brief introduction (e.g., “I am writing this letter to let you know how the accident of [date] and my resulting injuries have affected my life”), I would start with a “day-in-the-life narrative” which just describes your typical day (“Let me start by describing for you how my injuries affect me on a daily basis”). Then, just go through your typical day, from the time you wake up until you go to bed again, identifying the things that are made more difficult or painful (or that you can no longer do) due to your injuries. It doesn’t need to be a minute-by-minute account. Just focus on the things that are affected by your injuries. For instance, if you wake up stiff and sore, not wanting to get out of bed, say that. Say how long it is before the stiffness goes away. If you have problems or pain showering, getting dressed, making breakfast, etc., describe these and the pain level you experience. Tell them about the things you dread doing every day because you know it will hurt (e.g., loading the dishwasher, climbing stairs, etc.). If you work, include your typical work day. if you do the grocery shopping, describe your trip to the store. Describe how often you take any pain medication and how the side effects affect you (drowsiness). Describe interactions with your family (if any) and how they have changed since the accident (you’re more cranky from pain, drowsy from drugs, etc.). When you’re done describing your typical day, end with something like “and as I toss and turn trying to fall asleep, I know I’ll just have to repeat the whole process the next day, and probably every day, for the rest of my life.” It may help, starting tomorrow, to just go through a day being mindful of your pain and how the things you do are affected by your injuries.
After the “day-in-the-life stuff”, you can talk about other activities (such as recreation) which you used to do but which now you either cannot do, or cannot do without pain. Dancing, golfing, bowling, fishing, swimming, shopping at the mall and going for long walks are just a few examples. Obviously, this is going to be very specific to you. I had a client once who loved to paint, but after her cervical injury could no longer tolerate extending her arm out in front of her for long enough to get any enjoyment from it any more. Describing how something you were once passionate about was taken away from you can be very moving.
Of course, be honest. You want to paint the picture of a brave survivor who must now face daily adversity, not a whiner who exaggerates her symptoms. Include things you look forward to and things that provide you relief — “after doing X, I get to lay down and relax for half an hour, a time I look forward to every day, after which my pain has eased enough to continue on with Y“.
If there were any things you had one day dreamed of doing which seem unlikely now because of your injuries, such as learning to scuba dive/snorkle, run a marathon, take up golf, or just lose weight, you may want to close your letter with this for added impact.
Remember, all of this is just a suggestion. If you’re not the most gifted writer, you should still prepare the first draft of the letter yourself, then ask someone who writes well to proofread it and help you with revisions (but not me — no offense).
Thank you for your input. It is greatly appreciated.
I will take what you have said and use it for sure. I will start to write in a day or so.
Thanks Again!
I was injured in January of 2008 on the job { laceration to lower arm/9 stitches/visible scarring }… I hired a lawyer that same month and it has now been approximately 4 years and 4 months and the case still has not settled…There are 3 parties involved in the lawsuit….The thing that troubles me is that I have asked my lawyer how much he suing for and his reply is ” I’m waiting for them to offer a fair amount”. Is this a common practice among lawyers, to allow the parties being sued to set an amount? Because I was under the impression that my lawyer would be the one who would suggest an amount roughly consistent with my injury/pain and suffering etc. Thanks in advance for your guidance.
It sounds like he’s dodging your question because he doesn’t want to commit to an amount the defendants may never reach, and which might later require him to backpedal about why you should settle for less. It’s likely that he wants to see what the offers are to know what a realistic settlement amount is so that he can recommend it (and avoid going to trial). Realistically, I doubt that most lawyers would want to take a case involving a scar to the arm to trial. Not that I’m trying to minimize your injury, but if there’s no impairment to the limb’s function, your whole case is going to consist of past medical bills (I assume that after 4 years the scar is as revised as possible), past pain and suffering (I assume it doesn’t hurt now) and past and future emotional distress. The emotional distress element will depend on how noticeable the scar is and whether you’ve had to have any counseling as a result of the scar (self-consciousness, etc.).
Scar cases can be pretty tough to place a value on, mainly because they will vary so much in appearance from case to case that it’s nearly impossible to find a prior case upon which to base your evaluation.
I’m not trying to make excuses for your lawyer, but I understand why he’s doing what he’s doing. If he tells you that he thinks the case is worth $25,000.00 and the most the defendants offer is $10,000.00, he’s pretty much guaranteed the case won’t settle. Then he either has to choose to drop the case or take it to trial, neither of which is a positive outcome, given the added cost of trial relative to the value of the case.
The bottom line is, I don’t think your lawyer feels comfortable setting a value on your case just because scar cases are so subjective. Therefore, he just wants to get the most money he can from the defendants without having to go to trial. He has no idea how much he can get from the defendants until they make offers. So, he doesn’t want to give you a number until he’s sure it’s a number the defendants will pay.
He doesn’t want to tell you that he doesn’t want to try your case (although I can say I’m 95% sure that’s the case). He doesn’t want to give you a value of your case that exceeds what he may be able to get from the defendants, because then he’d have to tell you that he doesn’t want to try your case should they not offer what he said the case is worth. So, he’s stalling until he gets some offers so he can give you a number he knows they’ll pay.
I’m not really going to be overly critical of your lawyer for doing this. Lots of PI lawyers do this with lower valued cases. The only problem I have is that he’s not being completely honest with you. He should just tell you that he has no intention of trying of trying your case and that he’s just going to try to get as much as possible from the defendants. Some cases just aren’t worth enough to justify the cost of a trial. Most clients understand this when you explain the numbers to them.
Obviously, all of this is just my opinion based on the facts presented.
Everything you’ve stated makes perfect sense and I thank you for your speedy reply. Wish me luck!
Good Luck!
Thanks!
Hello, I know someone that got hurt in work over 2 years ago. She had back surgery and her doctors put her at MMI she hired a worker comp lawyer and she had to go to two doctor for her lawyer and the defence IME she went to all of them now the defence wants her to go to another IME with a psychiatry doctor. Is this normal or should she be worried??She thought she would be settling by now. Thanks
If she’s claiming a psychological injury (depression, PTSD, etc.) in addition to the back injury, a psychiatric IME is not unusual. These usually take longer than physical IMEs because they involve one or more written tests, like the MMPI. Make sure she knows how long the IME will be, in case it needs to be broken up into more than one day (I’ve known some to take 8 hours with all the written testing) to accommodate her back injury.
If she is not claiming a psychological injury, then there is cause for concern, as this indicates that the psychiatric IME is primarily testing for malingering. That wouldn’t bode well for settlement purposes, as it indicates that the employer/insurer thinks she’s exaggerating symptoms.
I no someone right know that one a settlement of 75.000.00 into the lawers bank .the lawer would only give him 7.500 loan from that siad he was waiting on a paper to clear before he could get the rest of his money.and already told him 4 times on a set date he would be getting it and still has not got anything Can the do this to him.
There are two main reasons why a lawyer wouldn’t be able to disburse a settlement check he’s received. First, it hasn’t cleared yet (which could take up to 10 business days). Second, there are outstanding medical or insurance liens that need to be calculated and paid from it. If it’s a lien issue holding up the works, often the lawyer can hold back a sufficient amount to satisfy any liens and disburse the rest to the client. Once the liens are finalized, if there’s any money left over, he would pay the client the balance. See this article and its comments for a more thorough discussion of this issue.
Note that until the lawyer can disburse money to the client, he can’t pay himself either (the money just sits in the trust account), so he has every incentive to try to settle any issues which would prevent him from paying the client as quickly as possible.
Hi I was a passenger in a accident that involved no other cars in 2010 I Broke my shoulder and lost a lot of movement in it. The driver was in his work vehicle. The case is now in the discovery phase i have had to answer questions for both the drivers attorney and the attorney of the insurance companies car i was in.
The companies cars insurance has been paying my medical bills and lost wages since the date of the the accident in 2010. Since that time i was seeing different doctors, the last was a pain management and he released me to go back to work with a bunch of restrictions but I work in a steel factory. Luckily my employer has been very understanding and have let me continue to work and have found other things that i can do. But i am working less then half the hours i was before now they have cut off my health benefits because i am not a full time employee. The car insurance is continuing to pay the difference of what i was making before the accident. But now i have to pay out of pocket to keep my health insurance should they be liable to pay that? And what about work retraining since i am not going to be able to do the job i was doing before and its starting to seem like my employer is getting tired of catering to me since they just cut my benefits?
Also since the accident I was not happy with what 2 other doctors and a physical therapist said when they told me i was at MMI. So i got a 3rd opinion and this doctor wants to do another surgery. I am at about 60%, this doctor says he can get me at 90%. Now i know its obvious that i should go ahead with the surgery but i already submitted my answers from the 2 different attorneys?
I have read all of these post and i have yet to see where a insurance company was paying lost wages and hospital bills before the case was settled. Since they are doing this are they admitting they are liable? At first they were saying the driver of the car is but they still continue to pay, if for some odd reason it goes to trial and they say their not would they have to be reimbursed?
Clearly, the driver of the vehicle is liable as there were no others involved. So, the issue for his employer’s insurer is not one of liability, but of coverage. This would depend on the language of the policy and the answers to these questions:
A “yes” answer to any of these questions would almost certainly result in the employer’s insurer having to cover the accident. The driver’s own insurance company would also provide coverage. The issue would be whether one of the insurers was primary (pays first) or whether they would split the damages on a pro rata basis.
As to whether the insurer has admitted liability by paying your medical costs, technically it hasn’t. However, while its not uncommon for an insurer that disputes coverage to pay for the legal defense of the putative insured, I’ve never heard of a case where the insurer went ahead and paid damages while disputing coverage. I am unaware of any mechanism (absent fraud) by which the insurer could try to recoup its money from you should you lose at trial — which is why I’m surprised that the insurer is paying your medicals and wage loss if it still maintains a coverage defense. If you’ve already had two surgeries, the amount the insurer has paid out so far would exceed most no-fault type coverages available, so it does seem like it’s paying from its liability coverage. Perhaps it just changed its mind as to the viability of its coverage defense.
With respect to your third surgery, you need to do what’s best for you medically. Having your first two doctors opposed to it doesn’t help matters (this goes to the reasonableness of the treatment), but it’s not fatal to you recovering that medical cost (especially if the surgery works). Don’t be surprised if the insurer doesn’t voluntarily pay this bill, in which case you’ll have to force it.
Your health insurance issue is a good question. Yes, they are liable for the additional cost you have incurred in having to obtain your own coverage. One possible exception to this would be from a mitigation defense — if there were other jobs that fit your medical restrictions whose overall compensation package (wages and benefits) exceeds that of your current employer, possibly including full medical, then the defendant could argue that you should have taken one of those jobs instead of staying with your current employer. The burden of proving the availability of such jobs would fall on the defendant.
i was sue in 2005 neather party wants go court they ask nothing in 7 years an i heard nothing can i ask for dismissal after seven years or is there a time limit on going to trail i live in tn. county of scott i have property they got lien on it an i need to move the property
Most courts will dismiss a case for failure to prosecute if there’s been no “record activity” (documents filed with the court) for a certain period of time, often one year. Some courts will dismiss the case on their own and some require the defendant to file a motion asking for it.
If there has been record activity in the case, then technically there is no time limit on when it has to go to trial, as long as the original lawsuit was filed within the statute of limitations.
my husband was granted a lawsuit 3 months ago the attorney who has the funds says the he will send out payments little by little because the attorney says he has not gotten a letter from medicare in the state of Oklahoma even though we have contacted medicare and was told that there is not money owed for any reason but the attoney says that in the state of oklahoma the have to wait for a release from the tribal owners of medicare thats owned by the indian tribes in oklahoma to respond to him before he can release all of the money thats suppose to given to my husband and was settle by the courts is an attorney allow you disburst money that is rightful yours and does medicare indian tribe have to send a letter back to the attorney even though the lawsuit had nothing to do with insurance it had to do with a law suit against a hospital that his mother was in and was raped by another mentally ill patient his mom has since past away but he was money was granted to him
Wow, that’s a mouth full. Your attorney is doing the right thing in giving your husband a partial distribution of the settlement while holding back enough to cover the medicare lien. I actually suggest this approach in this article. After the lawyer settles with medicare, he will send your husband any amounts left over.
If your husband’s claim had been a wrongful death suit, he wouldn’t have to pay back medicare for the treatment his mother received. However, wrongful death suits are only brought for accidents which caused the death of the injured party. When someone dies from a cause unrelated to the incident for which you’re suing, the lawsuit that person had is brought not as a wrongful death lawsuit, but as a survival suit (or “survivor” suit, in some states). In a wrongful death suit, the family members of the deceased sue for their own damages — their own pain and suffering and economic loss from losing the deceased. In a survival suit, a family member steps into the shoes of the deceased and sues for the damages the deceased person suffered before she died.
So, because your husband sued for the damages his mother would have been entitled to if she had lived to sue on her own, he’s also responsible for paying the liens she owes from the proceeds, just as she would have been.
Hi i just want to say thanks to who every reply’s with good or bad information. in summer of 2007 i was in a accident, i rear ended a car going about 5 to 10 mph, long story short they are trying to sue my dad and me, because they think that my dad was the owner of the car and that he gave me permission to drive it when in fact he was not, my mom was the owner. My question is if i went to court would they find my dad and me guilty or would the law suit be dropped against him? My other question is is there anything my lawyer can do for my dad to be dropped without going to court if its even possible? Last thing i was wondering about is if they said something in the summons that was not true would it be still valid?
Thanks you in advance i tried to make it short as possible
If your father isn’t the owner of the car, which should be easy to prove from the car’s title and registration, he’ll likely be dropped as a party by the plaintiff once the error comes out during discovery. If not, his lawyer can move for summary judgment early in the case, which would get him out well before trial.
If the statute of limitations has run on the claim, it is probably too late for the plaintiff to amend the complaint to change it to sue your mother. Normally, this kind of issue arises in the context of a plaintiff suing the wrong corporate party. In those cases, if the statute of limitations has run before the error is discovered, some courts have allowed an amendment to add the proper party when the initial one was a related corporate entity and the proper party had received notice of the lawsuit through its related company. This amendment would “relate back” to the filing of the original complaint and would be considered timely. Most of these cases hinged upon the relationship of the corporate entities. Not all courts will allow this type of party substitution after the statue of limitations has run, and I’ve never seen a case applied to people, so I don’t know if it work for a husband/wife substitution. This is something yours and your dad’s lawyer will need to worry about.
Don’t get too worked up about going to trial. Well over 90% of injury cases settle, and because yours is one that involves pretty clear liability (a rear-ender), I doubt that your insurer will want to go to trial just over a damages issue (especially if the damages are not too bad). Oh, and civil defendants are found “liable”, not “guilty”. You’re not a criminal.
As to the summons issue, I wouldn’t put too much hope in a technical error (like a misspelling) having much of an impact. It’s not like search warrants on cop shows, where the judge throws out all the evidence because they got the guy’s middle initial wrong. Real world courts, especially civil courts, believe in substance over form. As long as you received notice of the lawsuit through service of process, a technical defect in the summons probably isn’t worth arguing over. Even if it were defective, I’m sure the court would allow the plaintiff to fix the summons and serve you again — so you’ll probably gain nothing by pursuing it. Of course, you should tell your defense lawyer about it. He may want to bill some hours spinning his wheels over what will amount to a non-issue.
This is what it says on the court website under EVENT “ORDER SETTING JURY TRIAL” and this under comment “ON WEEK OF 031113 @9AM AND PRETRIAL
CONFERENCE ON 021913 @930AM BEFORE JUDGE BRAY
AND ORDER DIRECTING BIFURCATION OF JURY TRIALS” can you tell me what it means
Well, the pre-trial conference is a hearing before the judge where last minute motions and other pre-trial issues are resolved. Your lawyer handles this. The jury trial is set for the week of 3/11/13. They set it for the “week of” because there may be more than one trial that week. Yours may not be #1 on the docket, so you could start later in the week (or you could get bumped).
“Bifurcation” is splitting a trial into two parts. It can be done for a number of reasons. A common one is where punitive damages are sought. The first part of the trial will include all issues, usually including the issue of whether you are entitled to punitive damages. Then, if the jury comes back and says you are entitled to punitives, the trial continues solely as to the amount that should be awarded. This is done to save time (if the jury says “no punitives” you don’t need a second part of the trial) and to avoid injecting evidence into the main part of the trial (such as the defendant’s net worth) which might prejudice the jury as to unrelated issues. The second part of the trial starts immediately after the first, so there’s no delay. It’s almost always tried to the same jury, though unique circumstances in some cases might require otherwise.
hi i was in an accident on MArch 28 2012 with my two sons. 3 and 1. i was sideswept my this lady on a curve. she came into my lane and hit me on the front side. I didnt get no ticket. my car was totaled that day. that week i went to get the police report . then i got phone calls from the other persons insurance saying that there was a witness that said they saw me cross the lane and that they were behind me while the accident. but i didnt see amyone. and on the polce report there is no witness. that they had an appt.and couldn’t stay and wait for the police. most lawyers didn’t want to take my case there was only 1 that did. He doesn’t return my calls or emails. i have to call him from another phone number so he can answer me. he told me that he was going to file a lawsuit by the end of june 2012. nothing and now by the end of july 2012. not yet. i dont know if he’s lying to me. and now recently i googled. him and from that he was in jail for DUI may 2012. i dont know what to do. i think he has been doing the proper steps. but i haven’t sign no contract either. the only paper i sign was a release form so he can get my medical bills. he send me to a chiropractor send the insurance a paper saying its their fault but they denied i. so whats next. should i change lawyer. im so confuse. how long could a lawsuit last.
I have several concerns about your case. First, not having a written and signed fee contract when the case was taken on a contingency is either an ethics violation or a violation of state law in many (if not most) states. Of course, it makes firing your lawyer much easier in this case.
The fact that your lawyer was so recently arrested for DUI could be just a one-time lapse of judgment, or it could be indicative of your lawyer having a drinking problem (unfortunately, alcoholism is common in the legal profession). You certainly don’t want a lawyer with a potential drinking problem handling your case. Of course, you’ve already indicated that you tried to shop around your case before and this was the only lawyer who was interested. So, I’d suggest calling some more lawyers now to see if anyone else will take your case. If not, then having an impaired lawyer might be better than having no lawyer, if without a lawyer you have no means of recovery. I don’t envy your position.
If you decide to stay with this lawyer (or find yourself stuck with him because no one else wants your case), you should insist on a written fee contract. Otherwise, how will you know how much he will be paid out of your recovery?
Hi, I live in Hollywood fl,I had an accident at work a foklif where my arm were broke into 3 places and the bridge of my nose were broke also. I had sergury on both arm and nose . i have two metal plate on my arm that would stay forever. my question is would you give an Stimate how much a case like that is whorth?
I can’t do that. First, I’m not a workers compensation lawyer, and second, the value of your case depends on your average weekly wage and the nature and length of your inability to work (which I don’t know). Comp cases typically pay for all of your medical care and 2/3 of your lost wages. Non-economic damages, such as pain and suffering, are not recoverable in comp cases.
I am a PA for a gentleman who is the PR for a tobacco litigation case here in Florida (The case was one of the first of the original Engle Trust/Class Action suits from the 80′s). The case has never been tried, and it’s now going on 18 years.
In the past three years, there has been a major step forward in these cases, as all the attorneys and firms that have been holding on to the individual Engle cases (plus many more, after the Engle class-action broke up) have banded together and have set the wheels back in motion, all over the State.
However, I was just told today by the attorney heading up our case (out of 7 different law firms), that the Judge assigned to these civil cases is only allowing 1 trial per year. He explained that the “normal” case-load of Judges is around 1,000 cases per year. With the foreclosure mess, the case-load is now around 3,500, so they will only do 1 tobacco trial per year even though there are over 150 PENDING tobacco cases (each one, I’m told, takes about 3 weeks).
What I (“we”…and the rest of the family) are so upset about, is the fact that their case has been “on hold” for 18 years already. Fortunately, their case is #22 on the list. So far, they’ve tried about 5 cases, but at 1 trial per year, that will be another 17 years before their case goes to trial…most of the surviving children will be in their 70′s. The best our lawyer has told us, is to be thankful we aren’t #130 on the list.
130 years to wait for a trial? That would make it three generations! (the deceased, the plaintiff, and the plaintiff’s children) And that’s just in ONE county! It’s bad enough that “our” case will take an ADDITIONAL 17 years…almost 40 years since the father passed away! Saying this is ‘unacceptable’ is an under-statement!
Is there any forum available to us plaintiffs, to discuss how insane this is? Who would we complain to? What options do we have, to get things moved along faster?
Grrrr!
I feel for you, but this issue is so complicated that there won’t be any easy answers. Obviously, more judges are needed to handle the caseload currently crushing the trial courts. I’ll refer you to the Florida Constitutions’ provisions on the judiciary for who is involved in the process of hiring more judges — basically the Florida Supreme Court, the legislature and the governor. In these economic times, good luck lobbying them to hire more judges to speed up tobacco litigation. As I’m sure you know, the state is full of people who don’t realize that these cases stem from before everyone knew that smoking was bad for you — so it’s unlikely to get a lot of grassroots support.
On a case-by-case basis, if the plaintiffs are over 65 years old, they can try to expedite their case on the docket under Fla.Stat. 415.1115. This statute still gives the trial judge discretion as to whether to advance the case, so it’s not a sure thing.
As a final “Hail Mary” type move, an attorney with a lot of time on his hands could try to sue the state for a violation of the Florida Constitution’s right of Access to Courts, which provides:
I say this is a “Hail Mary” because as far as I know, it’s never been tried before. It would basically involve convincing Florida’s courts to acknowledge a direct cause of action to be brought against the state for a violation of the state constitution, similar to what the federal courts allowed in Bivens cases.
I’m not particularly optimistic about any of these options. I am particularly disappointed that the courts can see fit to mow through foreclosure cases at a breakneck pace, while tobacco litigants who have been waiting far longer for their day in court are forced to wait forever. It just goes to show you who has the best lobbyists.
if it has been already 9 months after the MMI was given and lawyer called client into office and told client of caps, that insurance companies would settle for and client has had really bad issues such as cant afford to make rent nor bills and suffering finanical differculties what do they do when they have not heard from attorney by mail or via phone ???????
If the lawyer isn’t returning calls, read this article.
Hi again I’m writing you again for additional info. Frist of all I’m confused. On June 19TH my Atty met with the Attorneys from the city of nyc and a gas company in which i’m suing. I was told from my Attys that they was a court ordered Depo in my case for August 2nd 2012. and the judge ordered it done before Aug 8th. The reason for the depo was because I had a 2nd surg in April 2012. To my knowledge all the paperwork from my care and aftercare was forwared to the Attys for the otherside. Will that never happenned because On August 1st The otherside Attys canceled and I was told that day a new Depo was ordered for Sept 6th and that The calendar clerk mentioned to me about another Ime. I have already gone to 2 prior depos and 2 imes prior to the 2nd Surg so I expected the next rds of Depos and Imes’s but this is why I’m cunfused and which doesnt sound normal is that when I called the calendar clerk today she said that they cancelled the depo again for Sept 6th because the otherside ( Attys for the city of NY). Is waiting for a motion on Sept 12th they have a another court date I wasnt told about. On June 19th I was told about a court hearing with all sides minus me For Sept 25th. Can the City Attys ask for a hearing other then what was ordered by the Judge for Sept 25th and can they just not have a Depo that was ordered by the Judge? That was scheduled by the Judge no later the Aug 8th. What is going I’m worried and I’m not getting any answer from anyone. 2nd Question Does your financial sitution, credit reports, W2′s ,Money you owe maybe to the Irs come outof you settlement or one thing as nothing to do with other?
The deposition deadline set by the judge is just that — a deadline, not a requirement that the defense actually conduct a deposition (they could choose to forgo it entirely). The defense may have filed a motion to extend the judge’s deposition deadline (that may be the Sept. 6th hearing), perhaps to wait until after another IME. As long as they have good cause for the delay, the judge would like grant an extension. Of course, I’m just guessing as to what’s going on.
As to your second question, state ethics rules will govern which liens your attorney must pay directly from your settlement money. Some situations are pretty clear “do pay” scenarios, such as Medicare/medicaid/health insurance liens and letters of protection. Others, not so much, such as an IRS tax lien or a judgment lien — while you would still owe these debts, it’s uncertain whether your lawyer needs to pay them or can just turn all of the settlement money over to you. Common debts such as credit cards do not need to be paid directly from the settlement. If you’ve got complicated debt issues, you should probably consult a CPA or tax lawyer. I’m sure your lawyer is going to have headaches over this, and he may need to call the state bar’s ethics hotline for guidance.
I suffered a serious knee injury requiring surgery in October 0f 2011. My deposition has been canceled 3 times by the defendant’s attorneys. My disposition has now been re- schedule for October 2012. My Question – is this a normal process or the defendant’s attorney playing the waiting game hoping I will settle for a lower compensation.
It is pretty unusual for a plaintiff’s deposition to be rescheduled so many times. Technically, this shouldn’t make your lawsuit take longer, as long as your lawyer is able to conduct his own discovery. Once he’s ready, he can notice the matter for trial regardless of whether the defense has done a bit of discovery. The court would likely have little sympathy for the defendant’s foot dragging (though realistically trials take so long to be set that it likely wouldn’t be a problem for the defendant to do whatever he needs to after it is set).
So, if the defense is using this as a delay tactic, it’s not a very effective one. It would certainly make mediation unlikely, as defendants rarely want to mediate prior to the plaintiff’s deposition. But, if the defendant was inclined to settle it probably wouldn’t be postponing your deposition so many times, anyway.
Great advice here, question:
I was a passenger in auto accident, and my medical bills are about 17,000, i was treated from a doctor that my lawyer sent me too. Our initial demand was about 75,000$, we waited the 30 days and just got the counter offer of 3,500$ ! Both cars were totaled, and i was subjected to soft tissue damages, the policy limit is 100,000. I live in FL, and the at fault driver was received a ticket. should i expect a settlement in between those numbers? around 35-40k?
I wouldn’t assume from just one offer that the defendant is looking to split the baby between its offer and your demand. In fact, for a soft tissue case, I’d be very surprised if it got nearly that high. How did you manage to accumulate $17,000.00 in medicals from a soft tissue injury? Are you including the portion that PIP paid, as you won’t be able to recover that from the defendant (because you don’t need to pay PIP back).
You need to have at least one more round of offers before you can tell where the negotiations are heading.
Yeah 10k is from PIP, I have scoliosis that never caused me pain before the accident, and the car crash was pretty hard, both cars totaled, i went for maybe 4-5 months of therapy, Thanks so much for your reply, you are an awesome person, whats your guess of a final settlement?
Well, the scoliosis issue certainly adds a layer of complication to the issue, but not in a bad way. Typical soft tissue cases will range between $8,000.00-$25,000.00, depending on your location and the severity of the injury. However, given that you had a previously asymptomatic condition which has become symptomatic due to the accident, yours is not a typical soft tissue case. If the condition was resolved through therapy, then you’re probably looking at the higher end of a typical soft tissue case. If it hasn’t then it could be higher.
Of course, it all comes down to what the defendant is wiling to pay, which at this point is unclear, due to there having been only one offer so far. So, my opinion is purely a guess, at best.
i have a question, i was in a accident where it was me,my son, and husband in the car i was pregnant at the time also,in the state of nj. i was being delivered home from a supermarket, when a car hit the delivery van we were in. now the lawyer wouldn’t do a case on my son but he did it for me and my husband. since i was pregnant and at the time i could only receive certain treatment, when i went back right after i had my child which was two days later, does it matter that i missed some treatments in a month will that affect my case, even though i have back, neck and shoulder injuries?
If you “missed” treatments due to the pregnancy, it shouldn’t have any negative affect on your case. A defendant takes its plaintiffs as it finds them (in your case, pregnant) and has to deal with whatever extenuating circumstances arise from the plaintiff’s particular condition at the time of the accident. So, if you couldn’t have certain treatments due to your pregnancy, and the missed treatments caused you damage or a longer recovery, it’s still the defendant’s fault.
If you had missed treatments unrelated to the pregnancy, that would be another story.
I have a question… I was involved in a 3 car accident on September of 2010. The defendant was proven guilty. My attorney says I have to split whatever I get with my passenger and the 3rd party since it was the same accident. Their insurance policy is supposed to be a 15person/30accident. My chiropractor has like 20,000 in bills for 6 months of service (yes way overpriced). I have great coverage with Farmers insurance and my policy included PIP & UM coverage. The chiro has been paid out, but he was supposed to be on a lien, meaning he would only get paid at the end of the settlement. He billed MY insurance company and they paid it out. How much money am I losing here and is it worth my time even pushing this because my attorney is taking 33-40%. The defendants insurance company agreed to settle out of court for the 30k, but what does that mean for me? Am I wasting my time with this? I lost my box truck that the other driver smashed… it totaled the front end and they only gave me $2000 for the recovery cost of property. Am I screwed here?
Thanks.
I don’t think you’re screwed at all. As to your chiropractor, I would expect that he would bill your PIP initially (that’s what it’s for) and then have lien for the rest against your liability recovery under a letter of protection. It really wouldn’t make sense for him not to use your PIP, so I don’t think he did anything wrong there (though I have an issue with the amount he charged for your treatment).
As to the bodily injury recovery, it is a common problem in cases with multiple injured parties and low liability limits to not have enough to fully compensate everyone. Most often, these get resolved on a pro rata basis, with the people who have the worst injuries taking the largest percentage of the bodily injury coverage. Luckily for you, your UM insurance is still available to make up the difference between what your case is worth and what you get paid from the tortfeasor’s BI coverage. So, as long as you have adequate UM limits, you shouldn’t have to worry about not making a full recovery.
I’d like to ask for ur opinion on my case. I was in an accident 12/21/11. I was stopped, waiting to make a right turn from a parking lot. Car #1, an 18 yr old in a Corvette sped across 5 lanes to enter the parking lot but I guess he didnt see car #2 in his path. He hit the front of my car, spun it around and car #2 hit the back. $15k in damage to a car my husband had bought for me brand new 4 months earlier. Car# 2 had insurance but she wasnt at fault so my attorney isnt pursuing her. Car#1 was cited, he had no ins. My UM policy paid for.my rental and repaired my car. I started seeing a chiro who took x-rays which revealed permanent spinal curvatures. He referred me to message therapy as well as PT. I treated for 6 mths. No loss wages, I am a homemaker but this was definitely a disruption. My attorney sent a copy of the demand letter to me. He is asked for $25,000, my policy limit. In the letter, he states that if litigation was necessary I could be awarded $62+ so it would b beneficial for them to settle at $25k because I am 100% not at fault. The only thing I could see being an issue is the fact that I didnt start treating until 2 1/2 weeks later. My Grandmother died two weeks after the accident after a 5 mth battle with pancreatic/liver cancer. My attorney disclose this in the settlement letter. I know u can’t say for sure, but do u think I have a long legal battle ahead. The MRI revealed 2 herniated/bulging disc, I was on xanax and taking prescrition pain killers, permanent spinal.curvatures and a need for future doctor visits to minimize pain. Thanks in advance for ur thoughts.
Knowing just what you’ve told me, I wouldn’t be surprised if they just paid the policy limits. The only thing that I see working against you is the nature of your treatment. Chiropractors aren’t very well trusted in the personal injury world, and I suspect that your discs are more likely bulging than herniated. If they were truly herniated, I would have expected you to be evaluated by an M.D. for possible surgery (not that I’d recommend having the surgery if your only issue is pain, as opposed to numbness and tingling — which tends to respond better to surgery).
Your insurer won’t really be threatened too much by the idea of going to trial. Its policy limits will shield it from any judgment above $25,000.00 in all but the most extreme circumstances. Unlike third party liability insurers who have to seriously worry about bad faith lawsuits, first party UM insurers (your own insurer) are much more difficult to successfully sue for bad faith.
Now that I’ve given you the bad news, I still think there’s a good likelihood of your insurer just paying up due to the clear liability and the relatively low limits — it would probably cost the insurer more in defense costs to fight it than just to pay its limits now.
Hello, I’m hoping for good predictions on this so I know what to expect. I was in a 3 car accident on the highway and I was hit when construction closed down 1 lane. I got hit once by vehicle 2 and got hit again when vehicle 3 hit her and pushed her more into me. This was in April of 2011, I had my deposition 2 months ago and the other 2 parties also had their’s. Neither of their insurance companies want to be the one more at fault. The last deposition was in July of last year. Now my lawyer’s paralegal said they just filed paperwork with the court for 2 possible trial dates. Does this mean my case will definitely go to trial? Or will the 2 parties come to a settlement before then? I really thought after the depositions they’d offer me something, I was never paid on my totaled vehicle, I paid for my rental out of pocket and was not reimbursed for one thing! My lawyer is suing for bodily injury and property damage.
Thanks for any info!!
Filing a “Notice for Trial” doesn’t mean that you are definitely going to trial at all. Getting trial dates (which will probably be very far in the future) just puts additional pressure on the defendants to move the case forward. Now they know that they can’t drag this matter out indefinitely. Because your case involves a lot of finger-pointing by the two defendants, your best shot at settling will probably be at mediation. Now that the main depositions are out of the way, now would be a good time for that. Some courts will even order that mediation take place when they set a matter for trial, so that may be another motive for your lawyer requesting a trial date.
It sounds like your lawyer is doing a good job in moving your case along and keeping the pressure on the defendants. Good luck.
Thank you so very much. I did in fact see an M.D who monitored my progress. He works in the same facility where I did PT and massage. He also ordered the MRI. So hopefully this will b smooth sailing. Thanks again!
I ‘ve settled my civil case, how long till I get paid if company in bankruptcy proceedings, but agreed to pay settlment.
That’s going to vary, depending on how long it takes the trustee and bankruptcy judge to approve payment of the claim. It’s too case-specific to estimate.
thank you for the info. Just had to know r thought I would ask.
I don’t understand why there are no laws put into place to help the person who is injured in a accident that was not their fault…If someone was in a accident and clearly it was the others person fault and you had witnesses to confirm and the at fault party paid for car damages but draging out the personal injury part…You have obtain a lawyer from jump and had the discovery and mediation the at fault party low ball a settlement offer and have not made another offer…I think there should be some kind of law that stops the insurance companies from draging out cases that was clearly their fault..IJS
Liability is only one part of a personal injury case. Insurers can still fight quite vigorously about the amount of damages to which you are entitled even in cases of admitted liability.
I don’t think any new laws will speed up the litigation process. The biggest impediment to cases moving forward is a lack of judges. Because these judges legally need to give priority to criminal cases (where more than “just money” is at issue), civil cases are always back-burnered on any issue that comes before the court, from hearings on motions to trial dates. If there were more judges, everything would move more quickly through the system. Unfortunately, due to the economic climate, I don’t foresee any additional judges being hired anywhere in the U.S. any time soon. In fact, most courts are being cut to the bone.
You really answered my question (blushing) thanks..
Hello:
I was involved in a car accident in June of this year. The other driver failed to yield turning left on a green light and slammed into the drivers side of my vehicle. The hit completely spun my car around and cause $4000 worth of damage. The day following the accident I woke up in a lot of pain in my neck and back. I started seeing an orthopedic doctor and was first diagnosed with a neck and back sprain. My neck pain eventually got better, but my back pain got worse. Two mohths later, the doctor ordered an MRI and found that I have a small central disc profusion at L5-S1 with annular tear , resulting in mild narrowing of the central canal. I have taken two rounds of steroids, and continue to take anti-inflammatory medication, along with physical therapy. The other driver did take full responsibility of the accident, and the adjuster from the driver’s insurance has been in frequent contact with me. My questions is…is this a case that I should try to settle on my own, or should I obtain an attorney? The doctor says that as long as my pain continues to subside, he will release me in October. What would be the range of compensation for an injury like mine? I am clueless as to where to even start.
I appreciate your help.
I wrote a whole article on whether you should try to settle on your own. You can find it here. As to how much your lawsuit is worth, see this article. I would strongly suggest that you wait until you reach maximum medical improvement before trying to settle your case.
I currently have a lawyer I hired her over one year ago to sue the public utility as well as the city for sewer backups. The DOJ is suing the city I live in for the EPA. So I know there is a case here as well as with my utility company, I have drinking water that is lead filled. The water has been tested by two different agencies. Back to the reason I am writing you. My lawyer has everything she needs to bring this case to court. I have provided her with videos, photos, documents etc. A 60 day letter has been written and she has not sent it. She tells me she wants to try this case in the news. They are not interested. She said she wants to take this before the county commissioners office, they cannot help I have called each of these people and they tell me that this needs to go before a court of law. Also she mentioned that she wanted to go before the board at the utility company. They will not talk with her, she is dragging her feet. When she first took my case she said for me to pack up and get ready to move, this has been over one year ago. I have cancer, she knows this and still she is putting me off. I am on social security and I do not have the funds to hire another attorney. I have emailed her begging her to please send the 60 day letter and lets get things moving along. She has not commented on that email where I asked her more than once to send the letter out. I am ready to scream. Please anything you can offer for advice would be greatly appreciated.
Thank you
Pamela
I really can’t guess why she hasn’t sent out the notice of intention to sue (which I’m assuming is a prerequisite to suing the government agency). My only suggestion would be to set up a face-to-face meeting to discuss her reasons for waiting and to set a firm deadline for sending the notice. If she still doesn’t want to send it, it’s probably time to find another lawyer. An unreasonable delay in pursuing your claim should be sufficient good cause to avoid having to pay her a fee, but you may want to shop the case around to see if any other lawyers are interested before letting her go. You don’t want to wind up with no lawyer.
Do the lawyer provide their client with a copy of the demand letter? or is that somehting the client requests a copy of?
This varies by the lawyer — some do, some don’t. If you want it, just ask to be copied on it.
I was involved in a car accident 4 years ago, I finally settled the case for $150,000. The settlement was split in two $35,000. from the taxi cab in which I was a passenger at the time of the accident, and $115,000. from the other car involved in the accident. I have received the $115,000. from the other vehicle’s insurance, $95,000 of that went to my lawyers and hospital bills. I signed the release saying that once I receive the $35000. I can’t sue them any more, but before they sent the check they filed for bankruptcy. Since then I have submitted my proof of claim form along with my proof of settlement paperwork as well, how long before I can get paid? Do i fall under the “avoidable preference” provision of the Bankruptcy Code?
If the bankrupt defendant was paying the settlement from its liability insurance, you should still be fully compensated, as no other creditors will have a right to those funds. Bankruptcy will be a speed bump, but you should ultimately get the full settlement. If it was self-insured (paying from its own money), then I would expect that you’d be treated as any other unsecured creditor, meaning you may not get the full settlement amount. I am not a bankruptcy lawyer, so take this advice for what it’s worth.
Thanks alot. One more question, is there a state imposed time period for them to pay me? The NJPLIGA have had my file since 06/2012.
I may have misunderstood who it was that filed for bankruptcy. Was it the defendant, or the insurance company? My previous answer was aimed at the defendant having filed bankruptcy, but now that you mention the NJPLIGA, I’m thinking it was the insurance company.
For insurance companies, N.J.A.C. 11:2-17.7(f) provides:
So, it appears that insurers have 10 business days from receipt of a settlement agreement in which to pay the settlement. However, the NJPLIGA is not technically an insurance company. It is an entity that acts as a receiver for insolvent insurance companies. I do not see any time limit imposed by law for it to pay. There may be some means to force payment of a settlement, such as a motion to enforce a settlement agreement, but that would depend on several factors, including whether you made settlement agreement with the now-insolvent insurer or with the NJPLIGA.
The settlement agreement was made with the now insolvent insurance company.
The settlement agreement was confirmed and signed by both parties on 03/16/12, my lawyer wasn’t concerned about the length of time it was taking them to send the check out because she said it can sometimes take up to 30 days. Anyway, while we were waiting for the check, the bankruptcy filing papers came instead, these papers were not filed until 06/22/12. So I sent off the proof of claim form and the proof of settlement agreement to the NJPLIGA since 07/15/12, my question is what is the average length of time for me to get paid.
With no statute to guide me and no experience dealing with NJPLIGA or New Jersey bankruptcy courts, I can’t give you an educated answer.
Wow, a lot of information here to read. I have a quick question. I was involved in a car accident 2 years ago, Oct 2010. My car got t-boned when I was making a left and the person who hit me was making a left also but he had a stop sign and I didn’t. The accident pushed the inside big door handle on my side half way into my seat where it hit my hip. I was in pain right away. The CHP noted it down and the next day I went to the orthopedic doctor. At the time I couldn’t afford to take time from work to rest and heal. So after months of PT. It seemed like it was getting better but 3 months later it flared up. I hired a lawyer 5 months after the accident happened. So in June of 2011 I had to take time off work and file for state disability. Since June of 2011 I haven’t been able to work. Went threw more PT and injections on my hip to heal. Until June of 2012, where my orthopedic doctor did a mri and found torn cartilage in my hip and some bone that he said that need to be shaved down cause it was causing me to experience some of the pain. He referred me to a hip specialist which I did go and see in Aug. The specialist said that he recommended me to have arthopedic hip surgery. I did and I am still recovering. In June of this year I had to quit my job because if you are out more than a year on disability if it’s a off the job injury. I lose my position within the company. Basically I get demoted. So that is why I quite because I didn’t want to start from the bottom again. I was with my job for almost 10 years. Now my question is. Is it standard procedure for the persons who hit me insurance company to not reveal there policy limits? We still don’t know. My lawyer called me about 1 month ago before the surgery and asked them what his policy limits were. My lawyer asked, does he have 100k policy. They said, we will not say. Then my lawyer asked, well is it at least 50k they said, yes. So my lawyer got back to me and said from what she thinks they may have a big policy limit. My lawyer already filed suit just to protect our case since in the state of California you have 2 years to settle. When do you think the person who was at fault insurance company will tell us there policy? Also, when do you think we will settle? The person who hit me was clearly at fault from the police report and also paying me out for my vehicle that was totaled. Also, my lawyer is asking for full policy from them to. Let’s just say, he only has 50k and my medical bills along with pain and suffering are higher than that? Could we sue him personally? What if the person already passed away this year? He was 81 years old at the time. Never in my life have I ever had a injury like this. Always been a gym rat, healthy person. Thank you if you can answer this for me.
First, that is not a “quick question”. That’s a bunch of questions. Just sayin’.
In California, an insurer needs written permission from its insured to disclose policy limits. If it failed to ask its insured for such written permission and denied disclosure on its own, it has probably exposed itself to a bad faith suit in the even of a judgment exceeding policy limits, as discussed in this case. It may never disclose its policy limits prior to you getting a judgment against its insured. Of course, this hampers settlement possibilities, so hopefully the insured (assuming it is he who denied permission for disclosure) will have a change of heart well before you have to go to trial. I can’t predict whether this will happen, but I would think that the higher the insured’s limits, the less motivation he has to disclose them (as he will have less fear of an excess judgment). So, his non-disclosure would indicate limits well in excess of your anticipated recovery — at least in the insured’s eyes.
As to whether you will settle, your guess is a good as mine. The vast majority of personal injury lawsuits do, so the odds are in favor of it.
If he doesn’t have sufficient limits to cover your injuries, and you don’t have UIM insurance to cover the excess (in California, your UIM insurance only pays the difference between his liability limits and your UIM limits — so if he has $50,000.00 BI limits and your have $100,000.00 UIM limits, you can only recover $50,000.00 in UIM), you could sue him for the full amount of your damages, and any amount you receive above his policy limits will be collectable against him personally. Of course, if he only has $50,000.00 limits, odds are good that he won’t be able to afford to pay an excess judgment, so it probably wouldn’t be worth the effort. As I stated above, though, there is the possibility of a bad faith lawsuit against the insurer to collect that excess amount — but that really depends on the insurer’s reasonable efforts and opportunity to settle the lawsuit within policy limits.
If the defendant passed away, you would sue his estate. This does raise an interesting issue regarding whether the insurer tried to get permission to disclose policy limits. It may have assumed that since he’s dead, it didn’t have to ask — which is probably wrong. You may want to have your lawyer push the adjuster on whether it actually tried to get written permission to disclose limits before it refused. If they didn’t bother to ask, your lawyer can use the case I cited above to push them to try to get permission from his next of kin, which would help with settlement discussions.
How long does it normally take the other parties insurance company to respond to the demand letter?
Usually within 30 days.
I recently spoke with my lawyer and she said the other parties insurance offered the 1.5 which is significantly low and believes the case is worth more than that.. How long would you say it is going to take before a settlement will be reached and this case can be closed?
I can’t even guess. Their offer could be just an opening offer that they’re willing to negotiate up from right now or it could take some time and discovery before they’re willing to offer more. If this is an initial offer, it’s doubtful that this is their top dollar, but that doesn’t mean that they’ll ever come up to a number acceptable to you without going to trial.
thanks
In February 2010, I was a passenger in a 6 car accident. The accident occurred on a major highway at 2am in the morning.
The first driver had a disabled vehicle that was blocking the far left lane(it was a 3 lane highway, right after a large curve in the highway).
Multiple vehicles were involved, it was a huge clusterf**k of a variation of neglectful and intoxicated drivers. The first driver passed away on the scene.
I sustained a broken hip, a broken foot, a broken hand, punctured lungs as well as a subdermal hematoma. I was in the hospital for over a week and rehabilitation for months.
Since then, my lawyer has not informed me of any part of the case. I have asked him several times to please keep me informed and all I get from him is “be patient”. I
just want to know where we are at in the lawsuit, as its almost been 2 years since the accident. We did depositions in June, and since then I’ve emailed/called him several times with NO response at all.
I’m not sure what to do from here, I feel like I should be more informed in what settlement offers are or even just in general in what stages the case is in.
Is this normal behavior for a lawyer, how can I get him to tell me whats going on and where we are at, it makes me very nervous when he doesn’t answer me or gives me very short responses with no real explanation. It seems like its taking for ever, and its very obvious that as a passenger in someone else’s vehicle that I was not in any way at fault.
If you’re having problems getting a return phone call, see this article. Your case is already in litigation, so at least you know progress is being made. Any number of things could be going on now. They could be setting up expert witness depositions, arranging a mediation, or any number of things. Given the number of people involved in the accident, I’m sure that there are coverage issues (how to split up the limited amount of coverage) and scheduling issues due to the number of lawyers involved which are gumming up the works.
While you are clearly not at fault, that doesn’t mean your case is easy. Defendants may be disputing their percentages of fault, the relatedness of some of your injuries to the accident, or even the reasonableness of the treatment you’ve received for these injuries. There’s still a lot to be sorted out.
While none of this excuses your lawyer ducking you, he may have already told you about scheduling delays due to some of the issues I’ve mentioned and feels that he can’t explain it any better (so maybe he thinks you’re just calling to complain to him). Take my suggestions from the phone call article to heart. Let him know that you’re not calling to bitch, that you value his time and won’t waste it, but that you don’t understand why things are taking so long and would appreciate a few minutes of his time to explain this.
Thank you for all your help. You have helped me tremendously during my law suit. Just to recap, I suffered a ruptured tendon 10/2011 requiring surgery and a year of physical therapy. My deposition finally took place on 10/12. The defendants were represented by three different attorneys. I was asked every question allowed by law and then some. Thanks to your Blog, I knew how to handle the attorney’s questions. So much so, that the last attorney asked me if someone prepared me for my deposition. My question – What are the next steps in the process.
Glad that you did well at your deposition. Aside from telling you that you can expect more discovery, such as depositions of other witnesses (like your doctors), more written discovery, like interrogatories, and maybe an IME, usually the next step after sufficient discovery is done is mediation and/or trial. It really depends on the specific case and the lawyers involved. There isn’t really a set playbook that everyone follows.
hello I am a mother of a four yr old minor who sufeered a severe brain injury during a heart transplant he was 19 months at the time of the accident my lawyers have did the findings of what happen the dr that we was suing committed suicide what happenes with my case?
This shouldn’t be a cause for concern. Your lawyer will simply substitute the estate of the doctor for the doctor as the defendant, so instead of suing Dr. X, you are now suing The Estate of Dr. X, deceased. His insurance company will still be on the hook if he is found liable. If he hasn’t been deposed, then he won’t get to testify (obviously), and the case will likely boil down to a battle of expert witnesses. If he has been deposed, then his deposition testimony can still be used at trial.
The fact that he’s dead will be known to the jury, but the fact that he committed suicide will not unless he left a suicide note admitting that he was negligent.
i have a question, i had an accident over 3 years ago, i received my summary medical bills and liens today, what’s next? when i suppose to receive my compensation?
I’m really not sure what you mean. Has your case already settled and your lawyer is trying to resolve the liens now?
I am the plaintiff in a personal injury case. I had my depositions involving all the defendants’ attorneys. My question – can I be called on a again for additional depositions?
In theory, yes. While some courts require parties to seek leave of court to depose the same person more than once, many do not. Even in the ones that do, if the parties give a good reason for needing another deposition, such as new issues that arose through discovery, or that it’s been a long time since the first one (so info needs updating) the court will allow it.
If they try to set your deposition again and you don’t think that they have good reason to do so, you could file a motion for a protective order asking the court to either deny them the subsequent deposition or limit the subject matter to specific issues which are newly arisen.
Our complaint was filed about 22 months ago and there have been no depositions yet. Discovery is not complete. This seems like a very long time? I have a feeling our attorney has sidelined our case?? In the mean time i still have to pay out of pocket for medicals..
I’d schedule a face to face meeting with the lawyer to discuss this. 22 months does seem like a long time for a lawsuit to go without having taken any depositions. There may be a good reason for this, but I’m at a loss to speculate about one (maybe you’re not at MMI?). The only way you’ll find out is to talk to your lawyer. If he has no good reason for this delay, you may have to fire him.
Hi,
I am a nurse at a very big hospital, they’re self insured. I hurt my back in January of 2012, symptoms didn’t get worse until June. Even though I filed an incident report the day of injury and went to employee health they wouldn’t allow my claim, so I got an attorney in June. Employee health diagnosed me with muscle strain, but MRI revealed L5-S1 disc herniation that has made me miserable. The first 2 scheduled hearings were cancelled d/t employer asking for continuance. I was seen by their independent dr. We went to the 3rd hearing and the claim was approved. Employer appealed. In the mean while I was seen by a neurosurgeon and was referred to a pain specialist. Received 3 steroid injections which did not help a bit. They scheduled a hearing, which employer asked for continuance claiming that they received the neurosurgeon’s report two days prior(which was a very good report). rescheduled hearing again and were granted another continuance; Counsel for employer was given full hearing block for that day (which i don’t even understand). I am just getting really frustrated, I’m depressed, barely push myself to work 12 hr shifts, I was told I need a discectomy. Every time I call the law firm I only speak to the paralegal, don’t understand why I can’t speak to the lawyer. How many times can a employer ask for a continuance? Could you give me some tips regarding this matter? Thanks.
Continuances are granted at the judge’s (or hearing officer’s) discretion, meaning that as long as he feels there are grounds to grant one, he can keep doing it. As far as talking with the paralegal instead of your lawyer, that’s not uncommon when your questions are about scheduling and how long things are taking. Be sure to read my articles about dealing with the paralegal and how to get your lawyer to return your phone call if you really need to talk to him.
Hello,
My question – my lawyers are meeting with the Judge and the defendant’s attorney. Based on my conservation with my attorney, this step in the process is to make sure all the discovery information has been completed. What happens after the attorney meet with the Judge.
Thanks in Advance…..
This sounds like either a case management conference or a pre-trial conference, both of which give the court a status update on how your case is moving along and usually involve setting deadlines for the parties to complete their discovery. If it’s a pre-trial conference, a trial date will be set, and deadlines will be set for disclosure of witnesses, exhibits and the filing of pre-trial motions (such as motions to exclude evidence, called motions in limine — pronounced “Li-mi-nee”) and other things such as proposed jury instructions and verdict forms. If it’s a case management conference, in addition to possibly setting discovery deadlines and disclosure of expert witnesses, it may set a date for the final pre-trial conference.
So, your next step is probably a bunch of last minute discovery squeezed in before the deadline, and possibly a lot of work from your lawyer on motions and other things which need to be done before trial.
If your case hasn’t been mediated yet, the court may order you to mediate, as well.
Hi, I have a question. I will try to keep this as short as possible. I slipped at my local Walmart and messed up my back in April. I contacted a lawyer, went to the doctors, did all the medical stuff that has to be done. My lawyer sent a demand letter to walmart’s insurance, asking them to settle or respond by the deadline date Dec 7th. I haven’t heard from my lawyer if they settled, counter-offered or anything. Does insurance companies usually wait until the last minute to respond, negotiate or deny? Or does lawyers usually wait until the last day to contact their clients to tell them what is going on?
Thanks,
Erica
First of all, Wal-Mart is self-insured, meaning it handles and pays its own personal injury claims — so you’re not dealing with an insurance company. Second, Wal-Mart is notorious for fighting personal injury claims as a matter of policy, even ones it expects to lose. It figures it will save money in the long run by discouraging personal injury lawyers from taking cases against it — lawyers may turn down these cases just because they know they will rarely (almost never) get an easy settlement.
With that said, you really need to wait until the deadline runs out before getting anxious. Wal-Mart may not respond at all, and force your lawyer to file suit. I doubt that your lawyer heard back from them and just hasn’t called you. Wait until a few days after the 7th (to allow for mail time) before calling your lawyer to ask for the status — assuming he hasn’t called you by then.
You may want to check out the Wal-Mart Litigation Project website (and send the link to your lawyer) to see what you’re in for. I have no affiliation with that site, but it has some good information for both plaintiffs and their lawyers.
Hello…….Was in a wreck someone ran red light she admitted to being at fault i have an attorney working on the case. I had just got a job making great money i was going to start the following monday…..as far as wage lost goes how do i ask for wages lost that i never got a chance to make? I have the manager onboard he says he will answer any quastions he needs to about what i would have been making and when i was to start. Wreck happend in october and the insurance would not give a rental car until my vehicle had been seen by the adjuster ….well that took a month! And then they decided it was totaled so i wouldnt get a rental car…few days later the adjuster says they have a check that i needed to fill out papers and send them back with copy of i.d and the title, problem is i had just bought the car and i had transferred the title over and it take 3 to 4 weeks to get back so im still waiting on the title. Mean time i lost a job and havent had a car in over a month almost two…..is the insurance liable for me being without a vehicle for so long and me losing a job ? Is that part of painand suffering and loss wages i already have medical bills aswell…….thank you
As long as your future employer can support your claim for lost wages based on the job you were unable to start, you should be able to recover those damages. If this is a salary or hourly work situation, that should not pose a problem. If it is commission-based, you may have a problem just due to the inherently speculative nature of commissions.
As to your car, while you are entitled to damages under the other driver’s property damage coverage for lost use of the vehicle (while it was being repaired, or in your case, while you waited for the adjuster), usually this will be quantified by the cost of renting a replacement car. If you didn’t incur this expense by renting a car on your own, how will you prove the amount of damages you suffered from lost use? Of greater concern is that it sounds like you’ve already reached a settlement agreement for the property damage claim, seeing that you are preparing to sign over the title for the totaled car. If you’ve already agreed to an amount for this claim, you may have lost your opportunity to recover for the lost use of the vehicle. Lost use of the vehicle isn’t pain and suffering. It’s an element of your property damage claim.
Ok thank you for your help, yes the job was an hourly wage job. The manager had to find someone else pretty fast because they have been behind schedule on alot of jobs (auto collision shop). As far as the rental car goes i couldnt affor to pay for one i had just sold my Atv’s to buy the car so i was pretty strapped for cash.It happened at the worst possible time for me. I guess i lost out on any compensation as far as not having a vehicle for over 2 months , and having to drive 60 miles each trip 3 times a week to the dr. I already signed the papers for the property damage just waiting on the title and then that check will be sent. Hey thanks for your help , there is alot of good inf on this site and you have helped alot of people.
Well, you can still recover for the lost wages and the mileage to your doctor’s appointments (which would both fall under the other driver’s bodily injury coverage), but the value for lost use of the vehicle in and of itself would be considered settled as part of the property damage settlement.
I was hit by a driver in December of 2011. I required arm surgery. 100% other driver’s fault. I filed claim worth $100,000. Driver’s insurance is $25,000. Driver’s insurance co. denied claim, suit has been filed. I am assuming suit was filed to my insurance co. as I have $100,000 UM as I have already answered two separate interragatories.. Scheduled for depostion at Attorney’s office. When does trial date get set?
Under many rules of civil procedure, your lawyer can notice the matter for trial (ask for a trial date) any time after the defendant files an answer (very early in the case). In practice, most judges won’t give lawyers a trial date until after discovery is nearly over, and many won’t until the matter has been mediated. So, don’t expect to be given a trial date until after your deposition and the depositions of the defendant and expert witnesses (your doctors and any medical experts from the other side). It could be a while.
Thanks for the reply. I got a bit confused when the interragatories had our local district courthouse requesting the answers. I am assuming that it was because the tortfeasor was served?
Why would my attorney request the interragatories be answered in 30 days then have me come in for the deposition 1 month after I returned them? Seems like he is dragging his feet a bit. He said the defendant is slow in returning his questions. I thought they only had 30 days?
I’m not 100% sure what’s going on, but it sounds like your lawyer may have been late in answering the defendant’s interrogatories (which happens frequently, and may have been due to issues beyond his control, such as a delay in getting records needed to answer them or an expert report) and the other side may have filed a motion to compel, asking the court to order him to answer them. Your lawyer may have then asked the court for an additional 30 days to answer (which is a common time frame to ask for, even if you don’t need the full 30 days) and may have asked that your deposition be rescheduled for after the answers are provided. Usually, a defendant won’t want to take your deposition until he has received your interrogatory answers, and this one may have scheduled yours for soon after the answers were originally due. So, your lawyer may have had to ask that the depo be pushed back to compensate for the late interrogatory answers.
Again, this is really just my best guess based on what you’ve told me. If this is what happened, don’t be too quick to blame your lawyer for foot dragging, as there are really any number of good reasons why lawyers need more time to answer opposing counsel’s discovery. While it causes minor delays in the litigation, it may not have been his fault.
The easiest way to find out is to ask your lawyer.
Once again, thanks for the reply.
Spouse had accident in 2009 with 18 wheeler, not at fault, truck went down the wrong way on the highway. had maximum medical treatment. we have a hearing soon, what should we expect? Thank you
You’re going to have to be more specific as to the nature of the hearing. Many hearings can be had on various motions or other matters throughout the course of a single lawsuit.
Thank you so much for your reply. The only thing our attorney said was that we have a hearing and we might settle.
Are you sure he wasn’t talking about a mediation?
Thats what i am thinking, i guess if it were going to trial we would have been notified already. I just have one question, in the last 3 years if my attorney had gotten offers did he have to let us know?
Yes, ethically he would have. The only exception would be if you had agreed to some prearranged settlement amount, and the offers had been below that amount. So, if you said, “Don’t settle my case for less than $100,000.00,” he could reject any offers below that amount without consulting you again (though it would still be a good idea to inform you of the offers, especially if the offers weren’t ridiculously below that). Most often, these types of arrangements are set up so that the lawyer can make quick back and forth offers with the defendant and not stall the negotiations in the event you weren’t immediately available to approve or reject each offer.
Hi ive a wee question can you help
? i had an operation 2and a half years ago which went wrong i have seeked legal advice and my lawyer has passed my notes onto a doctor 2 go through them hes has had them since november and when i do manage to get in contact with her she tells still no word ive asked her to contact him as hes had notes along time ..how long can it take for a doctor to get back to the lawyer with a response ..thank you ..x
Experts can be a royal pain to deal with, even for lawyers. The only thing you can do is keep contacting your lawyer at regular intervals (no more than once every 10 days, I’d suggest) to check on the status. Express concern about the statute of limitations. This should prompt him to pester the expert.
thank you so muchhhhhhhhhhhhhhhhhhh x
i have a personal injury case that has been goin on for 5 years (since date of accident) so far i was just offered an amount of 100,000 (after waiting 5 long years) not to mention i have over 300,000 in medical bills alone! the offer of 100,00 was below my initial demand of 950,000. how long is it going to take them to settle? is my first question, and can i demand a speedy trial for a personal injury case?
There is no right to a speedy trial for civil cases. Some states have statutes that allow you to get an expedited civil trial if you are over a certain age (like 70+), but that’s about it.
As to how long it will take them to settle, I can’t say. I can’t even say if it will settle from the information provided. Was the $100,000.00 a policy limits offer? Are you doing this on your own or do you have a lawyer? Has a lawsuit been filed? Have you mediated?
I do have a lawyer who’s handling this matter for me, but first i’ll take a step back to provide you with better information. I have claims against Kiewit Southern Co. ( construction co.) and Florida Department of Transportation, for failure to provide a safe “roadside recovery area” at the time of our emergency. me and a very close friend (who died in that accident) was traveling north on I-95 ( i was the passenger) when suddenly our vehicle became disabled in the middle of the highway! -in a construction zone. it was a dark and rural section of the highway (with no lights) other than the blinking construction lights and to avoid being hit by another vehicle, we were sure to turn our hazard lights on as well and we tried to get the car off the road as quickly as possible, to avoid getting hit in the middle of the road. it was causing a safety hazard for not only us, but other motorist especially. we then Immediately noticed there was a drop off on the right side of the road (with no right shoulder lane) so we couldn’t push the car to the right. to our left (left shoulder) towards the center of the highway dividing the north and south traffic, you would normally have a roadside recovery lane there as well but there was construction equipment blocking access to this emergency lane. it was an obstical for us but we finally found what looked like enough room to push the car and as we were pushing…(me) outside the driver side, pushing while steering. and my friend was pushing the car from the trunk since he was the bigger person. all of a sudden and out of nowhere we get hit by what felt like an explosion was actually a truck ! to answer your first question, i doubt the 100,000 was a policy limit because at this point the truck drivers insurrance case has already been settled (he was at fault). i was more referring to the construction company and FDOT. Yes I believe a lawsuit has been filed. and i’ve had a video taped deposition taken with not only FDOT but with Kewit together. the mediation i think is the 100,000 so far, correct me if im wrong. i haven’t heard any offers other than that.
This may be tougher to settle than you’d expect. For the claim against the FDOT, you have the problem of your recovery being limited to $100,000.00 under Florida’s sovereign immunity statute (because your accident happened prior to October 1, 2011 — the state raised the limit to $200,000.00 per person, per claim, just recently, but the increase won’t apply to your claim). You won’t be able to recover more than that from FDOT without getting the legislature to pass a claims bill (which almost never happens). So, if it’s just the FDOT offering the $100,000.00 that’s really as good as you can reasonably hope to get from them.
The construction company doesn’t have the same statutory protection as FDOT, even though it was contracted to perform work for the state, so you should be able to recover any amount against them (up to what they and/or their insurer can pay). Keep in mind that you won’t be able to recover twice for the same damages, so the amount you already received from the truck company should be taken into account when talking settlement with the remaining defendants.
If you’ve already mediated your case (as opposed to just sending settlement offers back and forth between lawyers), and it didn’t settle, it may not settle at all and you may have to go to trial. The fact that you don’t seem sure whether you’ve mediated or not makes me think that you haven’t — it’s usually a long process and you have to be there for it. While cases do settle even after failed mediations, they tend to do so either (1) right after the mediation (when one party has second thoughts) or (2) not up until you get close to trial (when both parties tend to get more nervous).
This is a long way of saying that I can’t say when or if your case will settle. If you’ve already mediated, I’m less optimistic about you settling any time soon (unless your trial is approaching). If you haven’t mediated, that would be the most likely time to settle.
First of all it makes no sense why one has to wait for maximum medical improvement before the case sees trial it doesnt take a doctors deposition to determine whose at fault its just another way of delaying the case for the insurance companies,So as in the case of my son is what happens when they can’t afford the medical do you think its given away freely..lol..yea try that and see how far you get not to mention when it takes years to reach maximum medical improvement with out the care they can’t afford what about every day living expenses when there is no money coming in ..well that falls on someone else and then they find that they have to sell or pawn their belongings or scrounge in order to get by too Altho it states that maximum medical improvement should be achieved before a settlement should be made it doesnt take maximum medical improvement to prove who is at fault so that the insurance company can pay for all of the proper medical attention and a bi weekly or monthly check for normal every day living expenses by dragging these cases out until MMI is achieved you are just putting more stress on the victims and their families or friends which makes the victim more susceptible to take a low ball offer after they have been starved out for years,,Such an injustice to the injured party could not be any more clear ..so how do they reach MMI when they cant afford the medical or the food to feed themselves. SO if it means that the cases have to go to trial twice,once to prove fault and then to show how much the case is worth then so be it,but to starve these victims out and then see that they don’t get the proper medical attention because they can’t afford it is nothing less than part of the problem rather than part of the solution and only benefits the insurance companies ability to starve them out and leave the victim with less medical attention than they require or afford,because you put it off on some other entity that should not have to carry the burden that others are responsible for..this is a joke and a travesty for the victims and their families and need to be changed
While I understand your frustration, there is a reason why the system is set up as it currently. Merely proving fault does not entitle you to payment. As discussed in this article, you still must prove causation and the reasonableness of your damages. Plenty of cases go to trial on causation and damages even after the defendant has admitted fault. So, to get paid as you go for medical treatment, as you suggest, would require not only a trial to prove fault, but one every time the defendant challenges the reasonableness and relatedness of the medical treatment. We just don’t have enough judges to handle the number of trials such a system would create.
Also, what you propose would be to change our current system of liability insurance, wherein an insurer only has to pay if a judgment is entered against its insured or if it agrees to pay through a settlement, into a quasi-health insurance system, where each insurer would need to set up infrastructure to review each claimant’s medical bills as they accrue to determine relatedness and reasonableness. This would in turn significantly drive up the cost of liability insurance, causing fewer people to have it, and those who do to likely opt for lower, more affordable, limits.
The reason we want plaintiffs to be at MMI before trial or settlement is because, before that time, their future damages are speculative. Juries are specifically instructed not to speculate when determining damages, so how are they to fairly compensate someone who is not at MMI?
I know that many plaintiffs, especially those without health insurance, cannot afford their needed medical treatment out of pocket. Letters of protection can help with getting many forms of treatment. If a plaintiff needs care that won’t be covered by a letter of protection, and has no other means to raise the money, a lawsuit loan might be able to help. While neither of these options are perfect, they are a better solution than changing our entire liability insurance system and holding multiple trials for each lawsuit.
I have a question. I fell down a set of steps about a year ago at an apt complex that i was living at. I do have a lawyer who is handeling my case. All my treatment is done,because i am not going to get surgery. I kwas told that all my medical record were sent out around 12/14/2012.I have not heard anything as of this date,so I called my lawyer yesterday,he told me that he spoke with someone from the insurance company a couple of days ago,but they did not give him any numbers. I asked if a lawsuit was filed he told me no he was going to give them a couple more days. To me it seems like everything is a secret(WHY IT IS MY CASE). I have no clue about anything. I don’t even know how much this case is even worth! can you give me some insight PLEASE.
It could be a simple matter of the insurer needing more time to review your records or maybe obtain records from other medical providers if it is concerned about possible preexisting conditions. If your lawyer has a fee that goes up after a lawsuit is filed, he is doing you a favor by trying to work out a settlement before filing suit.
Your lawyer should be willing to tell you how much he demanded in his demand letter to the insurer (usually the plaintiff makes the first settlement offer). Some lawyers are reluctant to tell their clients this initial demand amount because it is usually well beyond what the lawyer ultimately expects to recover — he doesn’t want to inadvertently raise your expectations. Have you given him a settlement number that would be acceptable to you, or told him to get you as much as he can? Without you having done one of those two things, your lawyer really shouldn’t be making any settlement offers, as he needs your permission to settle the case. So, if you gave him permission to settle for $20,000.00, he may make an initial demand of $100,000.00 (or any amount at or above $20,000.00). As long as the offers going back and forth between him and the insurer stay at or above $20,000.00, he doesn’t need to keep going back to you for permission (though it would be wise to do so if he gets close).
So, as long as your lawyer isn’t making settlement offers without you having given him your permission to settle for a certain amount (or told him to get as much as he can, which leaves it up to him to determine a fair amount), I don’t see this delay in the negotiations to be problematic or unusual.
I suffered a serious injury requiring surgery back in October of 2011 surgery back. My Lawyers informed me – before the courts assign a court date to hear my case, the defendants have to also go through I disposition, if that correct? Is so, why are the defendants attorney drag their feet in regards to the disposition.
Thanks in advance..
I’m not sure if you’re referring to a deposition or if you’re talking about a summary judgment motion (sometimes referred to as a “summary disposition”). Which is it?
Thank you for your reply – my understanding. The defendants must also go through the process of a deposition. The term “summary deposition” was not mentioned during my conversation with my attorneys.
Yes, it is typical for both the plaintiff and the defendant (and often third party witnesses and doctors) to have their depositions taken prior to trial. You’ll have to be patient with the scheduling. Usually, the lawyers will want to set aside a whole day so they can multiple depositions at once, which requires them to find a day when both lawyers are available. Also, the defendant may need more information prior to taking your deposition, such as medical or work records. This part of the lawsuit takes the most time. You’ll just have to be patient and trust your lawyer to try to move things along as best he can.
My (the plaintiff) deposition was taken back in Oct 2012. I had to provide all my1099 forms over the paste few years,
gym membership and how many time I went to the physical therapist, etc…. I guess my question is,
Who sets the time frame for the defendants to set a date for their deposition. And can you give an
idea want are some of the question my attorney will ask the defendants.
Thank you so much..
Your lawyer sets up the deposition of the defendant (subject to the availability of the defense lawyer). Most of the questions asked of the defendant will relate to how the accident occurred, though depending on the nature of the case, it can cover other areas. It will be much shorter than your deposition was, due to the fact that the defendant has no damages/medical treatment/wage loss that needs to be explored.
Hi, I have a longwinded question I will try to simplify. I’m being defended under a reservation of rights. The insurer has filed for relief of coverage through a DJA. From your experience, how long will it take for a judge to adjuticate the DJA, and will it be ruled on before or after the underlying PI claim is investigated? We are 6 months into the underlying case, and 3 months into the DJA. Depositions for underlying case are next week. The attorney appointed by the insurer can’t comment on the DJA due to confllict of interest. Thanks,
MikeinGA
Just for those who don’t know what you mean by DJA, it stands for Declaratory Judgment Action, and it is often used by insurers who have claim that they should not have to provide coverage for a claim. Essentially, the insurer says to the court, “We believe we have don’t have to cover this claim because of X reason, and we want you to rule on this one issue before we refuse to provide a defense to the insured for this claim so we don’t wind up committing bad faith.” Many times, the insurer will attempt to have the underlying lawsuit stayed pending the resolution of the coverage issue (as the underlying claim itself may be dropped if there is no insurance coverage, so both sides may wind up wasting their time and money if the court rules for the insurer in the declaratory action). It doesn’t sound like they’ve tried to do that in your case, so both actions will proceed concurrently.
Because the issues in a DJA vary from case to case, and may involve disputes as to facts which affect the coverage issue, I can’t say how long it will take the court to rule. If it’s a pure contract interpretation issue, with no real disputed facts, it could be a few months (or less), depending on the relative speed of the judge handling the case. If it’s more complicated than that, it could be much longer. Sorry I can’t be more specific, but the issues in these cases and the speed of different judges create too many variables for me to even give you an educated guess.
I’m sure your lawyer on the underlying claim has advised you that you can hire your own attorney to represent you in the declaratory action (as he can’t due to the conflict of interest you mentioned). It may or may not be worth your time to do this. That really depends on how likely you think the plaintiff is to continue to seek payment directly from you should the insurer have a valid coverage defense. If you don’t already have representation in the DJA, you should call around and see if any attorneys are willing to represent you on a contingency fee, as you may be entitled to an award of attorney’s fees if you win, such as under OCGA 33-7-15(b.1).
I would expect that even without a stay, the DJA will be resolved long before the underlying claim, seeing that there’s probably no chance of it settling while the coverage is at issue.
Wow, great answer. So, it looks as though I’m stuck in this until the DJA is ruled on. Ok, one more question. Because of this tripartitie relationship that I am in, I feel that the attorney is more loyal to the insurer than me. Am I entitled to independant cousel (paid for by the insurer) if I feel that I am getting a “token defense?” I read that under a reservation of rights defense, I am entitled to a “vigorous defense” which I don’t believe that I am getting. I guess my question to you is, what exactly should I expect from my defense attorney in the discovery period when investigating a PI claim? just interoggetories and depo’s? And am I entitled to see the medical records of the plaintiffs? I might be expecting too much. Thanks, MikeinGA
Unfortunately, only three states have statutes governing how this situation is to be handled and Georgia isn’t one of them, meaning that your answer will rely on Georgia caselaw (which isn’t part of my online research plan). I’ve seen several sites that discuss this issue under Georgia law, but none of them gave a direct answer as to whether the insurer is required to pay for independent counsel. One stated that when the insurer sends you a reservation of rights, it must ask if you will accept their defense of your case in writing. If you refuse, then the insurer must do what it can to prevent a default in the underlying action and request a stay while it seeks declaratory relief (implying that this is all that their lawyer is allowed to do). It did not state whether they would have to hire you your own attorney. If you were sent a form and agreed to accept their defense, that in and of itself may waive any right you may have had to have them hire independent counsel.
While I understand your concern about the attorney in the underlying claim, he is still bound by the rules of ethics to represent you and he would not be able to share any information he obtained from you in that claim that may be damaging to your coverage issue with the insurer. If such a conflict arises, he must withdraw. Consider that he still has every incentive to represent you to the best of his abilities, for if the insurer loses its DJA, it will be on the hook for the underlying claim — so it’s not going to want the lawyer to do a bad job defending you either.
This is a question (whether the insurer must pay for additional counsel) you’re really going to need to ask a Georgia lawyer, as I don’t feel comfortable answering based on my limited resources.
Thank you so much for your responses. I really do appreciate it. Well, depo’s are confirmed for this Wednesday, so it should be interesting. Just FYI, I’m the passive tortfeasor as a respondant superior, hence the DJA. Thanks again, MikeinGA.
No problem. Just FYI, it’s respondeat superior (Latin for “Let the master answer”), not respondant. So, I’m assuming you’re just the owner of the at-fault vehicle, and not the driver.
I’m hoping you can help me/advice me.
This question may be out-side of this forum . However, here goes .
After the Sandy shooting (a week after) a detective came to my home. I was not home, my 28 year old daughter answer the door. The detective, asked for me and my son (14 years old). My daughters relied,
my father is not home, What is this in reference to – the detective relayed, a neighbor who moved two years ago saw me with a gun out side of my house and he was here to investigate the charge and told another neighbor who lived two blocks away. The neighbor who lives two blocks away -called the police department on 12/22/2012. I was shocked I have never own an legal or illegal gun.
I wrote several letters to the police department and finally got the case number and the name of the Neighbor who falsely charged me and my family with numerous lies. I received the official police report, based all the false allegations – I asked the captain of the department-“I have a concerns for my family safety”.
The captain never called me back. For the record, I am African American in an area that has only one other African American family (much older couple).
Can you please advice on what legal actions I can take against these false allegation and to protect my family .
Thank you in advance…..
In theory, if the police do not think this conduct warrants bringing criminal charges for filing a false statement against the former neighbor, you could potentially sue him for malicious prosecution, abuse of process and/or libel. Realistically, to have any shot at prevailing on any of those claims you’d have to prove that the former neighbor knew that his statements were false when he made them (as opposed to mistaken identity or some other error). Even with that, because it doesn’t seem that you’ve suffered any serious damages as a result (e.g., actually being arrested, losing a job, etc.), it’s unlikely that a lawyer would want to take such a case. It’s also unlikely that this neighbor would have any insurance to cover such a claim, making it even less attractive to a prospective lawyer. If you feel strongly enough about it, and can’t find a lawyer, you could sue him in small claims court on your own (though your damages would be capped at the small claims limit for your state — often between $5,000.00–$10,000.00).
Thanks so much for your help.
Is it legally advised, for me to write the complainer a letter, stating; due to the false allegations, I am requesting the name of the neighbor who falsely lied of me having a gun out side of my home? for the purposes, of legal actions (Small Claims court)?
It wouldn’t hurt to try to find the name of the person who filed the complaint. Whether that is something they are legally required to give you depends on your state’s public records laws (assuming you’re talking about requesting it from law enforcement).
Hi,
My mother and I suffered a car accident on Feb of 2010. We sustained serious injuries which required back surgery (which we did not yet have done). Our attorney has been “going back and forth on negotiations with the Insurance Company(which is larger carrier). And keeps telling me that they are not getting back to him or answering his calls. He has a peculiar way of calling me after every holiday to update me on pretty much nothing. Just that the adjuster went up some small amount. His excuse is that this Carrier does negotiations this way. They go up 2 o 3 k every two weeks. ABout three months ago he told us that the carrier was offering 73k & 78 k but it was an unofficial offer. Our lawyer says that they will continue to go up from 63 and 67k(their last offer) until they reach that unofficial number (which we turned down) at which point he will counter offer. Its driving me nuts because it sounds to me like they are not taking him serious! I asked him to copy me on all emails regarding negotiation. Is this normal? Are we being jerked around? Has this case be thrown? Or is it typical. Mind you I am in Florida I believe the statue of limitations is 4 years to file suit.
If we are not happy with our lawyer can we still hire a new one? Or should I trust that this is just the way things are/
Negligence claims in Florida (including car accidents) have a 4 year statute of limitations. If you have UM insurance, you have 5 years to sue your own insurer because it is based on a written contract.
While it is normal to go back and forth with an insurer several times during pre-suit settlement negotiations, there comes a point when it becomes obvious that it is not going to reach a number that will be acceptable to the client. I don’t know if you’re there yet. Keep in mind that the standard attorney fee contract in Florida provides that your attorney’s fee will increase from 33 1/3% to 40% once he files suit, so it does pay to do your best to settle before filing suit.
It may help you to see the actual letters (assuming that this is being done in writing) going back and forth between your lawyer and the insurer, so you can get a feel for why it is moving so slowly. Are they asking for more information or questioning a particular issue that you may be able to help address and move the negotiations along sooner? Is each side only moving a little bit each time, afraid to make a larger move for fear that the other side won’t reciprocate (if that’s the case, it may be worth seeing it play out)?
Before thinking of firing your lawyer (because you may still have to pay him if you do), schedule a sit-down appointment with him to go over the settlement negotiations and see what is causing the delay. There may be a method to his madness that he’s just not explaining well over the phone.
Hi,
Thank you for getting back to me so soon.
All the Carrier asked for was provided. My attorney even negotiated our medical bills down and all of a sudden a has slowed down tremendously. I am not sure if you can call this “method to his madness” I do know there is madness involved. The thing is that every time we talk he tells me …” i think the last number the adjuster gave me was 63 or 67k and I think the number I gave them was a lot lower than I originally told them. And he goes from there to I said I dropped my amount significantly and they needed to come up significantly.
I dont want to go to court. I just want to be clear on what is going on.
Thank you for your time.
As I said, there may come a time when further negotiations seem pointless and you just have to file suit, but without knowing the specifics of the negotiations I can’t say whether you’ve reached that time yet.
Hi,
I currently have 3 different lawsuits going on. All were no fault, and all on different dates, My question is- 2 of these already settled and insurance already paid. However my lawyer has yet to pay me and tells me that he needs to wiat for the 3rd one. Is this correct? given that these were all seperate lawsuits on seperate dates, One of the was in 2009. So my question is- Can/is my lawyer suppose to pay me for those that have already closed or is this something I can request for him to do?
It depends on whether the injuries overlap and whether you currently have enough to satisfy any outstanding doctor and/or health insurance liens, after fees and costs from the first two cases. So, for example, if you injured your back in all three accidents and you can’t distinguish what medical care is due to the first, second or third accident (or a combination of them), it may not be possible to quantify or satisfy your outstanding liens until you finish treatment (reach maximum medical improvement). It may also be that the amount you settled for in the first two accidents is not sufficient to cover your liens after fees and costs, so your lawyer can’t disburse any money until he settles the third.
If this is not the case, and your injuries are distinguishable and you have enough to pay the liens for the first two accidents, I see no reason why he should hold onto your money pending settlement of the third case.
I think that you are wonderful thank you for taking the time out to answer all these questions I am sure you have better things to do, but I had came across this site with a whole bunch of questions now after reading through the comments I have a whole bunch of answers, anyway I too have an accident injury suite and and my Lawyer is very vague and evasive when answering my questions we are at the point now where they have turned down the first offer and now we are back at the table but before we had gotten the offer she said it would take about 30 days and someone called me about 3 months after that with the first offer when they call its like I never speak to the same person twice its always someone new and I asked with the second offer about how long should it take and they had responded with “We can stop whenever you are ready”, I just do not understand why I am not entitled to a straight answer it’s not like I am not asking direct questions. I understand the first offer is normally very low and they always advise you to keep going until you are please so my question to you is how long do I have to go now and when do you think a good stopping point is (or how far should I take the offer)?
Usually, offers go back and forth a few times before you can tell whether a pre-lawsuit settlement is even a possibility. Often, one side will finally make it clear that they’ve reached their top or bottom dollar and the other side either takes it or gears up for a lawsuit. The timing of these back and forth offers varies based the adjuster, the lawyer and whether either side is waiting on further information before making another offer. I would expect that after 3 months, each side has all the information it needs, unless your medical condition is still subject to change (in which case you probably shouldn’t be trying to settle your case now, anyway).
It would probably be a good idea to schedule a 15 minute phone call or in-person meeting with your lawyer just so you can review the offers to date and discuss the probability of settlement — make sure you are both on the same page as to the value of our case, and the decision to file suit should future negotiations indicate that you’re not going to reach that number through pre-suit negotiations.
Hi,
Recently we met with an accident and we filed suite. After requesting initial interrogoroties the defendant claiming that he was not recollecting anything with the accident and he was not on driving side of the car when emergency team pulled him out of the car. His blood alcohol level was .26 and he is claimed he was under medication. With the police report, they clearly mentioned he is the only one in the car. We dont know how it will be impact the case / the claim we made to the insurance. Please advise your views / suggestion …appreciate your views..
If he is the owner of the car, his liability insurance will cover the accident whether he was driving or not. If you saw that he was the only person in the other car (as opposed to someone else getting out and running away after the accident), then the issue of who was driving shouldn’t be a problem. When you say it was him driving, and he says he doesn’t remember anything, a jury could only conclude it was him (because he hasn’t created a dispute as to that fact).
It doesn’t sound like his not remembering he was driving will be an issue in proving that he was both driving and at fault. When weighing your story that “he was driving and at fault” versus the other party saying “I don’t remember and I was under medication” (and he also happened to be very drunk), I doubt too many insurers would try to dispute your version, unless there’s some strong physical evidence or other witnesses that contradict you.
Hi,
Thanks for the quick response and it assures some light of hope. The guy who hit me also hit few other car(s) and their claims are processed by defendant’s insurance. Will that add any +ve points to my case? Also, insurance initially sent a note with adjust details for point of contact. As insurance assigned a lawyer for the case / suite..it started with this kind of push back…and got to know from my attorney that defendant is so stuburn to get the answers..
Multiple cars being hit by the same driver is usually a positive when it comes to proving fault, but a huge negative when it comes to getting paid, as the driver may not have adequate insurance policy limits to pay for everyone’s damages. Normally, automobile liability insurance is issued as either (1) a combined single limit (CSL), meaning its limit will be expressed as one number (like $250,000), and all injured parties must collect from that single pool of money, or (2) a split limit, in which the limit is expressed as two numbers (like $100,000/$250,000), where the first number is a per person limit and the second number is a per accident limit. In the split limit example I gave, each injured person could recover no more than $100,000, and the total recovered by all injured people combined would be limited to $250,000.
If the at fault driver doesn’t have enough money to pay every injured person in full (and he has no other means paying the damages apart from the insurance), then you may recover only a portion of your damages, usually determined by pro rating everyone’s injuries and paying people based on how injured they are compared to the other claimants (and capped by per person limits if the policy has a split limit).
If you have under-insured motorist (UM) coverage, that may allow you to recover in full in the event the at fault driver doesn’t have sufficient insurance (which is why I suggest that everyone get UM coverage if they can afford it).
I was involved in an accident in July 2012 along with my 2 kids, we were at a local event and involved in a wreck on a small little train. I suffered bruises and cuts on my legs, which have turned to scars. I also suffered torn tendons and muscles in my shoulder. My son suffered a knot and cuts on his head, and my daughter had cuts and bruises on her leg, hip, shoulder and face. We were the only ones in the accident who has contacted an attorney to the best of my knowledge. My attorney has received all our medical records and sent them to the driver of the train, he had no insurance so the company said they are not responsible. My attorney then sent everything over to the company who were responsible for hiring the man and his train for the event. They have sent it all over to their main attorney in a different state. They have had all the information going on 3 months and have yet to respond to my attorney. I talked to him a couple of weeks ago and he said he was going to file a suit against them to try and get the ball rolling. I was just wondering if he files suit how much longer this whole process could drag out. Also this company is a big company here where I live and my attorney doesn’t think they will want to go to court and they will want to settle out of court if so how long could that take? Thanks
There’s no way of telling how long it could take at this point. Your attorney did what he could to settle it before having to file suit, and filing suit now seems like the right move. Whether the company will want to settle after that depends on several factors, not the least of which is if this company can be held liable for the actions of the train operator (just because they hired him for the even doesn’t mean they are automatically liable, especially if he was an independent contractor).
This could be a case of them waiting to see if suit would be filed (i.e., whether your lawyer was serious about the case) before making a settlement offer, or it could be that they’re going to drag it out through some discovery (many months) and maybe try to settle later. If they think they have a complete defense to being held liable, such as successfully arguing that the train operator was an independent contractor over whom they had no control (other than retaining his services), they may only offer nuisance value to avoid the cost of litigation. Really, everything I’m discussing is speculation at this time, so don’t get nervous about it unless your own lawyer tells you to.
You and your lawyer will know better where you stand after the defendant responds to your initial complaint.
i had a car accident 08/08/2012. I received my first offer 04/01/2013. My question is, how long after first offer does it take for second offer? I did read above that my lawyer could give the other insurance company 30 days to reply. Did I understand that correct? My case was pretty simple and the first offer was quite low and my attorney suggested i reject it. I am planning to move out of Florida and may be impatient, but all my attorney’s assistant keeps telling me is that it takes a while. Just trying to get some kind of time frame.
Thanks in advance for your reply
Usually, plaintiff’s lawyers put a 30 day deadline on their initial offers. After that, we kind of play it by ear. Unless the defendant isn’t waiting on newly requested records, it shouldn’t take more than 30 days for it to respond to any subsequent offers. Of course, some insurers tend to be slower than others, so this really isn’t a hard and fast rule. Your only real recourse to the defendant not responding to an offer quickly enough to satisfy you is to file a lawsuit. In Florida, that means your attorney’s fees go up from 33 1/3% to 40%, so it’s usually be worth waiting a little longer to see if the case can be settled before filing suit. While the initial offer was predictably low, that’s not necessarily an indication that you won’t eventually get a fair offer without having to file suit. I’d recommend being patient, and trusting your lawyer to know when/if the time comes to end negotiations and file a lawsuit.