Obviously, from the get go of a personal injury claim, it is very important to determine its potential value. An even more important question is, how much can I recover on my personal injury auto accident claim? The value and the potential recovery of your personal injury claim are not the same. The first question that must be answered is, what is the maximum potential recovery of my personal injury claim?
To determine what the maximum potential recovery of your personal injury claim, you must first know how much insurance is available. The first thing to determine is how much liability insurance does the adverse driver have? In the State of Nevada, this can be determined by the use of NRS 690B.042, which simply states that an adverse carrier must release proof of liability insurance upon receipt of a medical authorization and a list of your health care providers. Sometimes, we can get a general idea of how much insurance is available by taking a look at the adverse driver’s insurance company. Generally speaking, major insurance carriers like State Farm, Farmers, and Allstate, are companies that will write liability policies above the statutory minimum. The minimum liability insurance in the State of Nevada is $15,000.00 per person and $30,000.00 per accident. Other company’s only write minimum policies, because these company’s are not as financially solvent as the major carriers. These marginal insurance companies try to limit their exposure by only writing minimum liability coverage policies.
Once you have determined how much liability insurance the adverse driver has, the next thing to do is to look for additional liability insurance policies that may be applicable to your personal injury claim. In the event that you have an adverse driver who is not the owner of the vehicle, the owner’s liability coverage will provide primary liability coverage, and the driver’s liability insurance policy will provide secondary liability coverage. We also know that commercial policies will generally carry higher limits that personal auto policies. In the event where you have an employee driving his employer’s vehicle, this may be a case where there are two liability insurance policies available for your personal injury claim.
Umbrella Insurance Policy
When you determine that the adverse insurance policy is at least a $100,000.00/$300,000.00 policy, this is a sign that there may be an umbrella policy available that can provide additional liability coverage. An umbrella policy generally provides excess liability coverage in the amount of $1,000,000.00. In cases involving large businesses, their coverage is generally layered, so there may be one company that writes the initial liability policy and other companies that write layered excess policies.
After your attorney has determined how much liability coverage is available on your claim, the next thing to do is to look at your own insurance coverages. In the event that you have med pay coverage on your Nevada auto policy, you do not pay back your insurance company for the medical bills that they pay from any recovery that you receive from the adverse party. Med pay will generally increase your net recovery. However, off-sets for med pay coverage will apply under circumstances where you make an uninsured motorist claim or an underinsurance claim with your own company. For additional information on this subject, please refer to my blawgs on auto insurance coverage.
After you have determined all of the available insurance on your personal injury claim, you will be able to determine your maximum potential gross recovery. In rare cases, the person who caused the personal injury may have the ability to pay beyond any insurance coverage he or she may have. However, this should never be counted on as a source of compensation.
The reality of personal injury claims is that many of them have a value in excess of applicable liability coverages and underinsurance coverage.
Can you get more from the adverse insurance company rather than the adverse liability limits? In the event that any insurance company receives an offer to settle your claim within it’s liability policy limits and they refuse to settle your claim within their liability limits, and you obtain a judgment against the adverse carrier party in excess of his insurance coverage, you can attempt to receive an assignment from the adverse party of his bad faith cause of action against his own insurance company. This will allow you to file suit against the adverse in an attempt to make the insurance company liable for the excess judgment. This does not happen very often, and this is the exception rather than the rule on personal injury claims.
Rules to determine how much your claim is worth
After you determine the maximum potential gross recovery for your personal injury claim, the next step is to determine how much your personal injury case is worth. This is difficult to determine at the beginning of a personal injury claim. However, there are some basic rules that apply.
The first general rule is that the greater the amount of property damage to the vehicles involved in an automobile accident, the greater the insurance companies perceive the potential is injury and, therefore, for a higher recovery. Insurance companies do not like to take cases to trial where the property damage to the involved vehicles is devastating.
With the application of new technology to the bumper systems of vehicles, a person can be involved in an injury accident without visible property damage to the involved vehicles. Insurance companies hate these cases. Insurance companies refer to them as “minimal impact soft tissue cases” or “low impact cases.” In the event that you have a low impact claim, the insurance company will most likely only make a minimal offer to settle your claim. In the event that you do not have med pay coverage to cover your bills, your case will generally end up in litigation. Juries may not be sympathetic to individuals who claim to be injured in low impact cases. Defense attorneys try to convince the jury that injuries are not to be believed or that the motivation in bringing the lawsuit is for secondary gain.
For example, if you are involved in a low impact accident and you have a spinal surgery, the insurance company will hire doctors, engineers and biomechanical experts who are willing to testify that the accident did not create an injury potential.
Another important factor increasing the value of your personal injury claim is egregious behavior on the part of the adverse driver. Was he drunk? Was he using drugs? Was he engaging in a speed contest or reckless driving at the time of your accident? Does he have a felony record? Egregious conduct on the part of the adverse driver can raise the value of your claim. Juries don’t like these Defendants.
Your pre-existing injury and prior treatment, if any, can effect the value of your claim. If you have no pre-existing conditions related to your injury and you had no prior treatment for a similar injury, your claim will be worth more. If you are claiming a neck or back injury and you have had prior treatment for conditions involving your neck and back, or if you had prior claims involving injury to these body parts, an insurance company will offer less money to settle these claims.
As previously mentioned in my insurance blawgs, all accident claims are indexed on a nationwide computer database that is used by most insurance companies. Once an adverse carrier receives your date of birth and/or your Social Security number, they can obtain information on your prior claims.
Auto accidents with no comparative fault are worth more. If you were involved in an auto accident where comparative fault on your part is involved, this will also decrease the value of your claim. Insurance company’s will fight claims involving comparative negligence. If your comparative negligence for an accident was minor, such as 10%, the adverse insurance company will try to magnify that comparative negligence in their favor, and this will drastically reduce the value of your claim. In Nevada, If your comparative negligence is 51% or greater, you cannot recover from the adverse driver.
You can usually determine how much contempt an insurance company and their computers have for your auto accident personal injury claim by the amount of their initial offer to settle your claim. If you have medical bills that are in excess of $15,000.00, and the insurance company makes an initial offer of $1,000.00 to settle your claim, you will generally be involved in litigation in order to resolve your claim.
Many people think that the more medical bills they have on a personal injury case, the higher their recovery will be. This is not always true. In the event that you have $15,000.00 of physical therapy or chiropractic treatment, without a referral to an M.D., and without a positive diagnostic test, the treatment will generally be considered excessive by the insurance company. Remember, the adverse driver is only responsible for medical treatment that is both medically necessary and not excessive. Therefore, your claim has more value if you have further substantiation of your injuries through diagnostic testing and evaluation by a medical doctor. Keep in mind that if you have a high medical bills relating to an auto accident claim and your treatment is on a lien basis, you will still be responsible for your medical bills in the event that you lose your case.
Other ways to increase your injury claim
There are additional factors which have a tendency to increase the value of your personal injury claim.
Insurance company’s do not like visible injury, or injuries that can be clearly depicted by diagnostic tests such as x-rays. In the event that you have black and blue marks, swelling, open wounds, scarring, broken bones, deformity, etc., resulting from an auto accident, your case is more likely to settle. Claimed injuries that have no visual component to them, are generally worth less. Visible injuries are very easy for juries to understand. If they are present, jurors have a tendency to assess more value to visible injuries, than non-visible injuries.
If you have verifiable wage loss from an accident, this will give your claim more value. If you are unable to work, this usually validates a more serious injury.
Permanent physical disability, such as the loss of function of a part of your body, or disfigurement will add value to your claim. A permanent partial disability evaluation can add to the value of your claim.
Loss of family, social, and educational opportunities such as missing school, missing work related training, inability to go on a vacation, or to attend a recreational or special events, will add value to your claim.
In the event that you have emotional damages such as stress, embarrassment, depression, or strains on family relationships, inability to take care of your dependents, inability to take care of a young child, or interference with sexual relations can add value to your claim.
Medical expenses are called “special damages” or “specials”. General damages are for pain, suffering, inconvenience, and loss of opportunities.
Most people think that personal injury auto accident claims are worth some multiple of their medical bills. In other words, if you have $5,000.00 in medical bills, that you multiply that figure by 3 to get the value of your claim. Insurance company’s do not like these multiplier arguments, because increased medical expenses will result in a higher value of your claim.
Wage loss is generally compensated dollar for dollar. In the event that you use a sick day for paid time off as a result of your injuries or treatment, or if you lost wages as a result of your injuries, this is generally compensable on a dollar for dollar basis. No multipliers are used to evaluate lost income damages.
Most people think that our civil justice system will award them adequate compensation for their auto accident related losses. As a personal injury attorney, I have seen circumstances where juries award very little compensation to an auto accident victim. On the other hand, I have also seen situations where the jury will award much more than what a claim is actually worth, especially in situations involving egregious conduct on the part of the Defendant.
I have been told that to a certain extent, the reputation of a personal injury attorney goes into the formula for determining the value of a claim. The peer rating of your attorney or his success in trying personal injury cases, can add value to your claim. However, sometimes good attorney’s will actually lose cases, and bad attorney’s will sometimes win bad cases.
If you have an injury that will cause you to have pain and suffering in the future and cause you to incur future medical bills, this will add value to your claim. (Caveat: insurance companies don’t like future damages and have a tendency to downplay them.”)
As you can see, calculating the total amount of the value of your personal injury auto accident claim is not easy. Juries struggle with placing a price on things that do not normally carry a monetary value.
Consider these things in your decision to litigate your personal injury claim.
Some insurance adjuster’s will make a commission on your claim, in the event that they settle your claim for less than the authority provided to them by the insurance company. Therefore, adverse adjusters under certain circumstances may have a monetary stake in your claim.
Unfortunately, it is a very expensive and time consuming to take a personal injury claim to trial. Most medical experts will charge $5,000.00 to $10,000.00 for their trial testimony. You may need several experts or treating physicians to testify on your behalf at the time of trial.
In my experience, I find that in personal injury cases, you will either end up with juries that are sympathetic to an injured individual, or they will not be sympathetic. As soon as a juror during voir dire(questioning) mentions that he has had a claim for injury, he will probably be stricken by the defense. Pro-Plaintiff prospective jurors are usually more honest and forthcoming during questioning than jurors that are defense oriented. Defense oriented jurors generally have some hidden agenda or prejudicial feeling toward injured parties that may or may not be discovered during the voir dire questioning process.
Most personal injury accident claims settle before litigation. In order for a personal injury attorney to successfully settle a personal injury claim, it is sometimes necessary for the attorney, the health care providers, and health insurance carriers to compromise their financial positions on a personal injury claim in order to provide adequate compensation to the injured party.
The information provided in this blawg can assist you in determining the worth of your personal injury claim. It can also assist you in making the critical decision to either settle or litigate your personal injury claim.