Determining how much money you can expect in settlement of your injury claim

By Robert Greer

If there were perfect justice, a person who causes harm to another, either intentionally or by accident, would be able to make things right through a “do over” -– as if the injury never happened. But “Groundhog Day” and “Edge of Tomorrow” are fiction. We can’t go back and undo the past, restore health, take away pain, and erase memory. Neither can we offer up ourselves to suffer the same thing. “An eye for an eye” may satisfy the half blind with some sense of revenge, but it does not restore sight.

No, all the law can do is order monetary compensation under the fiction that money can somehow make up for that which was taken away. It’s not true of course. Few people would willingly suffer chronic pain in exchange for money or lose a loved one for pay. But it is the best we can do. It harkens back to the biblical concept of restitution. If “men strive together” and one dies not “but keepeth his bed,” if he rise again “and walk abroad upon his staff, then he that smote him shall be quit [released or set free]: only he shall pay for the loss of his time and shall cause him to be thoroughly healed.” Exodus 21:18-19 (KJV). Over the centuries, this idea took root in English law, thence to the colonies which became the United States.

Arizona is much like other states and instructs a jury what factors it may consider when deciding how much to compensate one injured by another’s fault:

  1. The nature, extent, and duration of the injury.
  2. The pain, discomfort, suffering, disability, disfigurement, and anxiety already experienced, and reasonably probable to be experienced in the future as a result of the injury.
  3. Reasonable expenses of necessary medical care, treatment, and services rendered, and reasonably probable to be incurred in the future.
  4. Lost earnings to date, and any decrease in earning power or capacity in the future.
  5. Loss of love, care, affection, companionship, and other pleasures of the marital relationship.
  6. Loss of enjoyment of life, that is, the participation in life’s activities to the quality and extent normally enjoyed before the injury.

Those are factors in evaluating settlement prospects for a claim for monetary damages. What to settle for is based upon a rational prediction of what a jury likely would decide given the facts of the injury and its effect on the life of the person hurt. That is more art than science and takes into consideration as many factors as a thoughtful person can imagine. A sample of questions proves the point:

  • who is at fault?
  • is someone other than the defendant at fault?
  • what percentage of fault should each person involved bear?
  • was the fault aggravated? Will a jury get angry at someone?
  • what were the injuries?
  • what was the cost of medical treatment?
  • was medical treatment reasonable?
  • how much was diagnostic, how much was treatment?
  • are there any permanent injuries?
  • what will future medical expenses be?
  • did the injuries affect the ability to work?
  • what was the lost income?
  • what are the costs of medical treatment?
  • did the person have any pre-existing medical problems?
  • how much did the accident add to the already present medical condition?
  • how well does the person testify about the effects of the injuries on his life?
  • are the parties believable?
  • are they likeable?
  • does the plaintiff exaggerate his/her injuries?
  • what jury trial experience do the lawyers have?
  • how will the lawyers come across to a jury?
  • how strong is the medical evidence?
  • are the testifying doctors credible?
  • where will the trial be held?
  • are juries in that jurisdiction conservative or liberal with money?
  • will the jury be sympathetic to this type of injury?
  • will jurors be able to understand the technical evidence?
  • are punitive or exemplary damages sought?
  • does the judge lean toward plaintiffs or defendants in evidentiary rulings?
  • what have been the results when similar cases have gone to trial?
  • what have other cases with similar injuries settled for?

Those last two factors tend to have greater weight when an insurer evaluates a claim. Bear in mind that insurers have access to databases that have hundreds if not thousands of similar claims. An experienced adjuster would have seen dozens of claims just like the one at issue. For larger claims, there is a “round-tabling” process in which the insurer’s most skilled and experienced casualty claims professionals come together to evaluate hypothetical injury claims by examining settlements in similar claims and published jury verdicts. See In re Farmers Ins. Exchange Claims Representatives’ Overtime Pay Litigation, 336 F.Supp.2d 1077, 1102 (D. Or. 2004). Some insurers use software which incorporate closed claims data from a particular geographical region. While the software is a useful estimating tool, it does not take into consideration external factors like re-injuries to or complications of preexisting conditions, the reputation and experience of trial counsel, aggravated liability, the appearance and believability of the parties and a multitude of other external factors. (After all, juries are never told what other similar claims have settled for.)

For an individual claims professional to recommend settlement in an amount outside the norm requires an extraordinary showing of why this case is different from the run of the mill case. In other words, is the risk of a higher jury verdict on these facts with these parties great enough to merit offering more money in settlement and eliminate the risk. In other words, what do I think a jury will most likely award if this case goes to trial?

Sometimes there are external considerations which bear on a defendant’s decision to settle. Do we want to defend the product or this professional or this company through trial to send a message to other claimants that a suit against us is never easy? Do we want to avoid adverse publicity either from a trial or from a settlement? Do we have business or financial reasons to delay a settlement? Are policy limits so low that the insurer risks having to pay its own money if it does not settle now and puts the policy holder at risk?

In summary, there is no easy answer. There is no chart to refer to which will tell you what to expect. Even experienced lawyers or claims professionals may have different opinions of valuation from the same set of facts.

Our advice? Hire a lawyer after carefully interviewing him or her about experience with this type and claim and this type of injury. The State Bar of Arizona has in place a certification program through which attorneys are tested and screened for subject matter expertise, number of jury trials, review by their peers and respect of judges. There are far fewer certified specialists than there are lawyers who advertise. Check the list at azbar.org.

personal injury case value

Evaluating Your Personal Injury Case Value

personal injuryIt’s not surprising that one of the questions asked most often by plaintiffs in personal injury cases is the most obvious one: “What is the value of my personal injury case?”

The honest answer is also an obvious one: “It depends.” While many things can factor in to determining the value of a personal injury case, there are a few things to consider when trying to assess how much your claim may be worth.

For example, no matter how serious your injuries are or how large your medical bills have become, the amount you can recoup in a personal injury case is limited to the amount of available insurance and the defendant’s assets. While laws can vary from state-to-state, a personal injury case is most likely limited to the amount of available insurance. If your car is hit by a driver who carries only the minimum amount of insurance – let’s say it’s $25,000 – and no other insurance policy is available, the most you can realistically recover may be that amount, $25,000.

If the driver who hit you carries only the minimum amount of insurance mandated by your specific state, and your policy includes underinsured motorist coverage, you might be able to pursue an uninsured motorist claim for additional money. Check with your attorney to see how much you can recover, based on your policy.

This is just one of many reasons which underscores the importance of retaining the services of a knowledgeable and experienced personal injury attorney. He or she will look at all applicable insurance policies to make sure you recover the largest amount possible for your personal injury case.

When it comes to being compensated for any harms and losses you’ve experienced as a result of your injuries, you can get a ballpark idea of what you might recover by looking at the total damages of your claim. When your insurance company makes an offer to settle your claim, they will take into account several things: lost wages, your total medical bills, any out-of-pocket expenses incurred – as a result of your accident, along with any pain and suffering you experienced from your injuries.

The total amount of your settlement offer for pain and suffering will be calculated by the extent of your injuries, along with the type of medical treatment you went through. Some injuries are so severe they need surgery and many months of physical rehabilitation. Other injuries are less serious, requiring a lower threshold of medical care. It all comes down to one thing: the more involved your injuries were, and the more elaborate the medical care you required, the more money you should be offered to compensate for your pain and suffering.

As you’ve no doubt figured out, there are many factors in play when trying to determine the value of your personal injury case and what your settlement offer may be. Although it would be impossible and improper for a lawyer to promise a specific settlement amount at the beginning of your claim, a good attorney will be able to consider the various components of your case, and make an educated guess as to the value of your claim. He or she will come up with a plan for the best way to maximize your specific case to obtain the best possible settlement.

baird-williams-greer-faq

Personal Injury | Frequently Asked Questions

personal-injury-claim

  1. I have just been in an accident and have been injured. What should I do?

First, seek medical attention if you are suffering from a personal injury to ensure you are treated promptly and competently. This should be your first priority, because everything you tell a healthcare provider will be written down and will later be read by everyone involved in any future personal injury claims arising from the accident. Therefore, remember these rules:

  • Be accurate.
  • Do not exaggerate.
  • Be thorough. That is, do not skip over symptoms and do not ignore pains. (Insurance companies looking at medical records often conclude that if it’s not written down, it does not exist.)
  • Follow-up with appointments. Appointments or missed appointments are often interpreted by an insurer as the patient being symptom-free.
  • Do not over-treat. Make sure you are progressing and feeling better, and double check with your family doctor about the need for treatment if you find that you are not getting better.

Second, make notes to yourself as to what happened with as much detail as you can recall. It is important to be very accurate, since it may be days or weeks before you are interviewed about the events, either by an insurer or an attorney.

Third, make contact with the party who you believe is at fault for the accident. Usually you will be referred to an insurance company. They will want details of the accident and all medical and lost income information in order to evaluate whether you have a personal injury claim, and, if so, what to offer in settlement. If you are uncomfortable doing this, it may be a good time to contact an attorney experienced in personal injury claims.

Fourth, wait until your doctor has accurately diagnosed your medical condition, provided his or her views about your condition, and prescribed a recommended treatment before you seriously discuss settling a claim. Baird Williams & Greer highly recommends talking to a specialized personal injury attorney if you have any concerns about the reasonableness of a settlement offer.

personal-injury-faqs

  1. The insurance company wants to take my statement. What should I do?

When you are injured and the person who may be at fault has insurance, it is common practice for the insurance company to do an investigation and to gather information with which to evaluate a personal injury claim. Taking statements is a routine part of that. Usually, these statements are recorded. You have nothing to be concerned about giving such a statement so long as you follow these rules:

First, before giving any statement, take time to think about what happened and recall the events in order. It is best to write down exactly what happened with as much detail as you can remember. Because you will be asked many months even years later exactly what happened, it is important that you prepare a record that will jog your memory.

Second, when you give your statement, answer only the questions that are asked. Answer truthfully, avoid guessing at things that you do not know, and do not guess at things. If you do not know or do not remember, say so. If you are taking medication that affects your ability to remember, say so.

Third, while you are being interviewed ask for a copy of the transcript of the interview, so that you can look at it again and make any changes. Sometimes questions will be asked that you have not thought of before and it takes a little reflection before you answer. If you can review your statement and make notes on it for clarification, you get the benefit of that reflection.

  1. What if I am hurt if a product fails or does not do what it is supposed to do?

Do not use the product again. Keep others from using it and preserve it as best as you can.

Product failures present complex questions that usually require an inspection, and an evaluation by engineers and other experts in the field. It is critical that they are able to examine the product in the condition that it was at the time of the failure and/or injury occurred. On this type of claim, you will definitely need professional help from an attorney with products liability experience.

  1. Do I need a lawyer?

Maybe. For minor injuries that heal without any permanent or long-term effects, you may be able to reach a settlement that you believe is fair without hiring a personal injury lawyer. If an insurer admits that the other party is at fault, you can usually negotiate a fair settlement by yourself. However, it may be worthwhile for you to pay for an hour of an attorney’s time to get advice as to the reasonableness of a settlement offer.

If the insurer questions whether the other party is at fault or believes your injuries were either not caused by the event or are not as serious as you believe them to be, you will probably need a personal injury attorney.

For serious injuries or death, it is a good idea to hire a personal injury attorney soon after the event. Evidence will need to be preserved and an investigation conducted when the facts are fresh. This is particularly true if a truck was involved, there was an aviation accident or a product failure.

Most lawyers working for folks who are hurt do so on a contingency fee basis; that is, they will not be paid unless they can reach a settlement and then they will take a percentage of what is collected as fees. The percentage is something you can negotiate; it’s usually between 25-40 percent, depending on how complex the case is and what is at stake. In some matters, you may decide to negotiate for a fee based upon time worked at an hourly rate. However, you will have to pay that amount win or lose and probably on a monthly basis. In addition to fees, you will have to reimburse the attorney for out-of-pocket expenses, regardless of the outcome.

  1. Will I have to go to trial?

95 percent of all personal injury claims are settled without actually going into a courtroom and presenting evidence. Nevertheless, you will probably have to give testimony under oath before trial in order for the parties involved to understand the nature of the claim, as well as evaluate injuries and losses which happen because of the injury. Sometimes personal injury claims settle without ever even having to file suit, but even that requires giving a great deal of information to an insurance company, so that it can evaluate its risks and potential losses should the matter go to trial.

  1. How do I find a good lawyer?

Advertising and the internet have changed the way in which we find professional services. A generation ago, word of mouth was the best way to find a skilled professional. A professional in one specialty will refer patients or clients to another who has the respect of his peers. That is still a good way to go. Ask an attorney you know about the reputation of another.

Ask about experience in personal injury, whether they’ve done work for both injured people and insurance companies, how many trials they have had, what fees they charge, what’s the most recent success they’ve had, what’s the most recent loss they’ve suffered, how available are they to answer questions and how long will it take. Any other question that makes you feel comfortable with the lawyer should be asked. It is important to ask questions, because the fact is once an attorney gets a license, he or she can practice in any area without any experience. Many learn on the job, some with more experienced mentors than others.

Anyone with an advertising budget and marketing skills can put themselves out to the public as one who is accepting clients in different areas of law – from divorce to criminal defense, workers compensation, employment issues, traffic offenses, business formation or tax advice. A slick ad doesn’t qualify an attorney in the field in which he or she advertises.

The State Bar of Arizona certifies specialists in personal injury litigation. The certification means they have the respect of the judges before whom they appear, they are vetted by other qualified attorneys, including their opponents in court, and have several trials under their belt. There are more than 22,000 licensed attorneys, however fewer than 200 lawyers are certified in personal injury litigation. To see a list of specialists, go to www.azbar.org.

Baird Williams & Greer Partner Robert Greer is a licensed personal injury attorney with decades of experience in the courtroom.

If you’ve been injured, contact Baird Williams & Greer today for a free, no obligation case review.

Indivisible Injury and Apportionment of Fault

Arizona statutes require a common liability for the same injury as a predicate for the allocation of fault among parties and non-parties under A.R.S. § 12-2501.

In the case of multiple acts, is there a single, indivisible injury that gives rise to common liability?

The Restatement (Third) of Torts focuses primarily on whether there is a reasonable basis to divide liability based on causation, but distinguishes division by causation from apportionment of responsibility. Division by causation is the process by which one reduces a group of injuries which constitute indivisible injuries. Only after that is done is responsibility for each indivisible injury determined.

This is illustrated by two decisions. In Potts v. Litt, 171 Ariz. 98, 828 P.2d 1239 (App. 1991), Potts was involved in two automobiles collisions, 13 days apart. The court concluded that “even though it might have been difficult to apportion Potts’ damages, it was not impossible.” 171 Ariz. at 100, 828 P.2d at 1241. By the new Restatement view, it was possible to divide the damages by causation and unnecessary to apportion the responsibility, meaning that the case should have been litigated as essentially two separate claims against two separate defendants for two separate injuries. There was no common liability.

Piner v. Superior Court, 192 Ariz. 182, 962 P.2d 909 (1998), faced the same issue, but after the abolition of joint and several liability. Piner was hurt in a rear-end auto accident in the morning and called his doctor complaining of specific injuries. The doctor’s staff told him to call back in the afternoon. However, in the afternoon he was rear-ended again, called the doctor again, and complained of additional pains in the same parts of the body. Unquestionably both collisions contributed to his injuries. Piner argued that because there was an indivisible injury, the liability of both tortfeasors was joint and several.

The Supreme Court concluded that the indivisible injury rule survived despite the abolition of joint and several liability, relieving the plaintiff of apportioning damage according to causal contribution. If the facts make divisibility of the injury impossible, once plaintiff established that each tortfeasors contributed to his injuries, it was up to the defendants to establish who caused what part of the injury. This means that the jury must apportion not damages, but fault, and must do so for each accident. The plaintiff’s recovery will be the total damage sustained and the jurors will be instructed to allocate fault according to A.R.S. § 12-2506, i.e., for the amount of damages in direct proportion to the defendant’s percentage of fault.

In practice, cases like Piner will be rare. Most successive cases involve a factual dispute over whether the injury is indivisible. In that case the jury will first decide the division of damages, then the apportionment of fault. They will attempt to apportion damages from two successive accidents and then turn the page of the verdict form to find that they must then apportion fault for the two accidents.