QuestionQUESTION: MY NAME IS RENAY MY 11 YEAR OLD SON AND I WERE HIT FROM BEHUND AND MY CAR IS A TOTAL LOSS. OVER 8000 DOLLARS WORTH OF DAMAGE. THE PERSON THAT HIT USD WAS GIVEN A TICKET FOR FAILURE TO CONTROL SPEED. THE PROPERTY CLAIM HAS BEEN SETTLED. WE WENT TO ER AND WAS I WAS GIVEN MUSCLE RELAXERS AND PAIN PILLS AND IBUPROFEN. MY SON WAS GIVEN IBUPOFREN FOR PAIN. IWAS UNABLE TO WORK FOR ALMOST TWO WEEKS DUE TO THE PAIN IN MY NECK AND BACK. MY LOST WAGES WERE WELL OVER 4000. DOLLARS. WE BOTH HAVE BEEN GOING TO PHYSIACAL THERAPY 3 TIMES A WEEK. MY SON HAS BEEN RELEASED. I AM STILL GOING THREE TIMES A WEEK. I HAD A PRE EXISTING DEGENERATIVE DISC DISEASE AND 3 BULGING DISC. BEFORE THE WRECK MY LIFE WAS NORMAL OCCASSIONAL PAIN EVERY NOW AND THE. I HAD AND XRAY DONE IN 2005 ONLY I BULGING DISC AND IN JANUARY 2010 I HAD ONE DONE MY PROBELM HAS WENT FROM MILD TO SEVERE IN THE MRI I HADONE AFTER THE WRECK IN MAY MY L5 S1 WS ONLY A 3MM BULGE IN JANUARY , BUT SINCE THE ACCIDENT IT IS A 4MM DISC BULGE. THE ACCIDENT HAS REALLY AGGRAVATED MY CONDITON. MY LEGS AND FEET ARE GOING TO SLEEP AND FEELS LIKE NEEDLES ARE STICKING IN THEM. MY SPINE FEELS NUMB AT TIMES AND I HAVE SO MUCH PAIN IN MY LOWER BACK I CANT EVEN TIE MY SHOE. THE INS COMPANY SENT A LETTER ASKING ME TO SIGN A RELEASE OF MEDICAL AUTHORIZATION FOR MY SON AND I BEFORE SETTLEMENG CAN BE MADE I DID THA AND SENT IN MEDICAL BILLS ON JUNE 5. NO OFFER HAS BEEN MADE I CALLED TODAY BECAUSE MY SON HAS BEEN RELEASED AND THE ADJUSTER SAID THAT SHE WOULD CALL NEXT WEEK WHEN THEY GO OVER EVERYTHING. DO YOU THINK MY PRE EXISTING CONDIOTION WILL CAUSE A PROBLEM. I WAS HONEST I TOLD THEM ALL I WANT IS MY MEDICAL BILLS PAID AND MY LOST WAGES AND PAIN AND SUFFERING . SHOILD I GET A LAWYER?
ANSWER: Hi Renay,
I am so glad that you wrote to me because I think you were on the verge of getting screwed by either or both the insurance company or an attorney who will want full fees for little work. You are going to suffer the rest of your life because of the negligence of this driver, and the least I can do is to give you a full two hours of my time to boost up your confidence and awareness to fight for a fair settlement. You are a good honest person who disclosed everything, and a jury will like you and give you a LARGE award, so do not settle for peanuts: this injury will plague you the rest of your life, even if you have a surgery.
If you do not understand anything I am going to tell you, then ask me again here at allexperts.com. If my quota of questions is filled, or if I am on a vacation, then write to me at my website. Personal injury insurance claim settlement help www.SettlementCentral.Com sample letters forms templates instructions on making your own settlement. EXCEPT IN YOUR CASE, our website is NOT recommended for you UNLESS the tortfeasor has low policy limits. Then you could learn how to settle your insurance accident claim at www.SettlementCentral.Com
But otherwise, do not purchase a membership at my website. Instead, if you do not understand what I am going to tell you, let the staff know that we met here at allexperts.com. Use the "contact us" form, and I have given your name to the staff. They handle the dozens of questions we get each day from accident victims, and unless I alert them, nothing gets passed along to me for an answer. But I WANT to answer any question you may have because you are in a world of trouble with this light-up of your preexisting condition.
Do not shoot the messenger, Regan, but I must tell you some bad news. I have handled many clients with serious disc injuries, and this condition is NEVER EVER going to get better than it is right now. With activity of your normal work functions or your normal daily routine or your hobbies, COMBINED with aging, your life is going to be bound to this back problem.
You have suffered A MOST SERIOUS, PERMANENTLY DISABLING LIGHT-UP of a preexisting condition. Your claim has a VERY HIGH value (see below). As such, you CANNOT EVER trust the insurance to "take care of you" in a settlement UNLESS they have low policy limits. In that case, you must take the policy limits, subject of course to the kind of notice that must be given to your own insurers. (See below)
Before meeting with the adjuster, make her get her insured's permission to release information disclosing the policy limits. If she refuses, then do not meet with her. Tell her that the first set of interrogatories out of an attorney's office will REQUIRE disclosure of the limits, so you will be pleased to make her reveal them if she wants to be difficult about it.
Tell her that you have a right to know because of the high value of your claim and the likelihood that you will settle for policy limits. And unless she is interested in making her insured participate unnecessarily in a lawsuit, why does she not call her insured and recommend that the insured authorize her to disclose the limits to you.
If the adjuster will not disclose the limits, or offer the limits, then see what she is going to offer you and DO NOT RESPOND AT ALL (no matter what figure she offers you), except to ask her to put that offer in writing. If she will not put it in writing, then you write to her a letter summarizing what she told you.
Why a writing? So you can get a discount in attorney fees. Let's say she offers you $50,000. REFUSE IT. Then with that in writing, you can hire an attorney and negotiate a discount so that no fees are taken on any settlement amounts for that which you already had an offer.
Anyway, back to the adjuster's bogus offer. Unless it is policy limits, IT IS TOO LOW. Even if she offers you $100,000, IT IS TOO LOW. Do NOT make any response whatsoever, other than to ask that it be put in writing so you can consider it. E-mail is fine. Have her e-mail the offer to you. Tell her you will consider it and get back to her. Do not tell her that you are getting an attorney.
Then, get yourself to an attorney ASAP. But in contracting with that attorney, make darn sure that you do NOT agree to a full contingency fee if:
(1) you already have an existing offer in hand, or
(2) it turns out that the tortfeasor has policy limits of $50,000 or less.
Make sure the attorney agrees to send interrogatories right away just to ask about the limits. Then, you can get some idea of how to proceed. Limits vary from state to state, but the most common are $25K, then $50K, then $100K, then $300K, etc.
There will be a wee bit of work to do if the limits are $50K, but NOTHING that would deserve a big handsome fee. Honestly, once the attorney finds out what the limits are, all he has to do is to collect the medical records and write one letter and the $50K policy limits WILL BE PAID. How much money is that worth? You could hire an attorney by the hour at $250 to $300 to do that work and it would take a MAXIMUM of five to ten hours to settle the claim AND to obtain waivers of subrogation interests. Thus, something like a $5K cap or hourly fees could be fine if the limits are only $50K.
And if the limits are only $25K, a blind dog with a note in its mouth could get that amount in your case, so you must insist upon paying no more than $1,000 to $2,000 for that low limit settlement AND for fighting subrogation.
So when contracting with the attorney, make him agree to a fee cap for both policy limits of $25K and $50K.
Here is the dope on low limit settlements and the notice you must give. Accepting a policy limits settlement is the TRICKY PART. You cannot accept a policy limits offer unless and until your insured subrogees (see subrogation link below) and your Underinsured Motorist Carrier (UIM) have an opportunity to "buy out" that offer of limits. If they were to do that, then they would have seen some benefit of paying you directly the amount of the offer and suing the tortfeasor directly. That would mean that the tortfeasor has assets that can be executed upon as part of a big judgment obtained against him.
http://www.settlementcentral.com/page0459.htm
Introduction to Subrogation—Forced Payback to YOUR OWN Insurer From Your Personal Injury Award
http://www.settlementcentral.com/page0451.htm
Directory of Legal Information on Liability Insurance Policy Limits Settlements in Personal Injury Insurance Injury Claims: Car Accident Injuries, Dog Bites, & Slip and Fall Insurance Claims
Here is why your claim has a very high value. You had a preexisting condition that you were living with. The fact that your condition made you more susceptible to lasting injury than an ordinary person is no defense to the tortfeasor. They MUST pay for ALL damage proximately caused by their negligence.
In your case, what was a livable situation has now been made into a life-long living hell. You will live in chronic pain and even with a surgery later on, there will be residual problems, such as restrictions on your movements and a dull ache that will not go away. No one is going to give you one dime after you let this insurance claim go, so fight for all that you can get, Renay.
There is a jury instruction and a lot of law ON YOUR SIDE, and I am going to go and look stuff up for you right now. When I come back, I hope to be able to give you some stuff you can read to the adjuster regarding the fact that your situation is specifically provided for in the law because your preexisting condition will not be held against you.
OK, Renay, here is some of the stuff I found that you can use to counter what the adjuster says.
Juries are to be told that defendants take plaintiffs as they are when there is evidence of preexisting conditions which predispose the plaintiff to injury or greater injury than would occur without the preexisting conditions
The eggshell skull rule (or thin-skull rule) is a legal doctrine used in both tort law and criminal law that holds an individual liable for all consequences resulting from their activities leading to an injury to another person, even if the victim suffers unusual damages due to a pre-existing vulnerability or medical condition.
The term implies that if a person had a skull as delicate as the shell of an egg, and a tortfeasor or assailant who did not know of that condition were to tap that person on the head, causing the skull to break, the responsible party would be held liable for all damages resulting from the wrongful contact, even though they were not foreseeable. The general maxim is that the defendant must "take their victim as they find them".
Here that is, in the form of a jury instruction, with case cites below. This is from California, but most states are similar.
3928. Unusually Susceptible Plaintiff
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You must decide the full amount of money that will reasonably and fairly compensate [name of plaintiff] for all damages caused by the wrongful conduct of [name of defendant], even if [name of plaintiff] was more susceptible to injury than a normally healthy person would have been, and even if a normally healthy person would not have suffered similar injury.
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Sources and Authority
• “That a plaintiff without such a [preexisting] condition would probably have suffered less injury or no injury does not exonerate a defendant from liability.” (Ng v. Hudson (1977) 75 Cal.App.3d 250, 255 [142 Cal.Rptr. 69], internal citations omitted, overruled on another ground in Soule v. General Motors (1994) 8 Cal.4th 548, 574 [34 Cal.Rptr.2d 607, 882 P.2d 298].)
• “The tortfeasor takes the person he injures as he finds him. If, by reason of some preexisting condition, his victim is more susceptible to injury, the tortfeasor is not thereby exonerated from liability.” (Rideau v. Los Angeles Transit Lines (1954) 124 Cal.App.2d 466, 471 [268 P.2d 772], internal citations omitted.)
Here is another jury instruction regarding making a preexisting condition worse. The tortfeasor must pay for ALL damages he causes.
3927. Aggravation of Preexisting Condition or Disability
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[Name of plaintiff] is not entitled to damages for any physical or emotional condition that [he/she] had before [name of defendant]’s conduct occurred. However, if [name of plaintiff] had a physical or emotional condition that was made worse by [name of defendant]’s wrongful conduct, you must award damages that will reasonably and fairly compensate [him/her] for the effect on that condition.
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Sources and Authority
• “A tortfeasor may be held responsible where the effect of his negligence is to aggravate a preexisting condition or disease.” (Hastie v. Handeland (1969) 274 Cal.App.2d 599, 604 [79 Cal.Rptr. 268], internal citations omitted.)
• “Plaintiff may recover to the full extent that his condition has worsened as a result of defendant’s tortious act.” (Ng v. Hudson (1977) 75 Cal.App.3d 250, 255 [142 Cal.Rptr. 69], internal citations omitted, overruled on another ground in Soule v. General Motors (1994) 8 Cal.4th 548, 574 [34 Cal.Rptr.2d 607, 882 P.2d 298].)
• “It is by no means self-evident that an act which precipitates a flare-up of a pre- existing condition should be considered a ‘cause which, in natural and continuous sequence, produces the injury.’ Thus, general instructions on proximate cause were not sufficient to inform the jury on the more specific issue of aggravation of pre-existing conditions.” (Ng, supra, 75 Cal.App.3d at p. 256.)
• “[An instruction on preexisting condition] is proper only where the injured is the claimant seeking compensation for his injuries. That is not the case here in a wrongful death action.” (Vecchione v. Carlin (1980) 111 Cal.App.3d 351, 358 [168 Cal.Rptr. 571].)
OK, Renay, I think I have given you enough information to turn you around three times and to "round your brain" But it is for your own protection, and of course, I do hope that I am wrong about the permanency of your injuries. Let's hope that they go away in three months. But just in case they do not, I wanted you to get as much information as possible.
I trust that my extra time here has produced some information that has been of value to you, and thus I would respectfully request that you take the time to locate the FEEDBACK FORM on this site and leave some feedback for me.
Best Wishes,
Dr. Settlement, J.D. (Juris Doctor)
http://www.SettlementCentral.Com
---------- FOLLOW-UP ----------
QUESTION: Dr, Jd,
What if i wanted to accept the limits of liability and my insurance was expire a t the time of the accident.i would not be able to file on my uim and my insurance company would not be able to try to buy them out vecause i was not covere at the time of the accident, Then what do i do. Actually at the time of the accident i was on the phone paying my renewal when i was hit. By the time the rep posted my payment it was six minutes after the accident occurred. So therefore my inurance cmpany i ssaying that i was not ccovered at the time of the acident, Can this cause a problem with my settlement>?
AnswerThank you for the kind words, Renay—I appreciate that.
Your situation is not good right now, and I am not sure that there is anything I can do to make it better. BUT I am going to put a lot of effort into helping you. And while I appreciate your saying that you would like to pay me, Doctor Settlement volunteers with legal help just because no one else is going to be there to help people like you.
Before we go any further, I want to say that it is important to be accurate with your recitation of what happened with your insurer. This could be a separate lawsuit versus your own insurer. We just need to get the facts down in order.
DO NOT SETTLE with the tortfeasor in the meantime. Get their address from the accident report and I will see what kind of neighborhood they live in. What kind of car did they drive? I am going to ask you to think about the tortfeasor and guess what kind of assets he has. The reason being, you may have to go after his assets as well.
But we are getting ahead of ourselves since first we need to get all the facts down in writing, and then I am going to try to find an attorney who will take on your own insurance company, assuming that the facts are as you state them to be.
What I need is to correspond via e-mail, and since I cannot expose my e-mail address on this forum, I need for you to write to me at my website: www.SettlementCentral.Com
Use the "contact us" form, and I have given your name to the staff. They will be looking out for your e-mail. Just include the mention of allexperts.com and your name. I will need your phone number as well so we can speak to get the facts down.
Here is what I need for you to gather. Do you have the accident report? Do you have any e-mails or correspondence with your insurer? Explain why the policy was being cancelled. I want to be sure that the statute of limitations does not expire on us, so let me know the date of the accident and the state in which you were hit.
And also let me know a good time to call you. There is no way you can ever pay me. This is something I like to do because sometimes we can make a difference in a situation that is difficult for an accident victim.
Best Wishes,
Dr. Settlement, J.D. (Juris Doctor)
http://www.SettlementCentral.Com
