QuestionHello Dr. Settlement, I was involved in an accident where the other driver was intoxicated 3X the legal limit in my state, and they were determined to be 100% at fault for not stopping at their stopsign. My state has no-fault insurance, so my own ins. co. paid my medical bills up to my limit, then my personal health ins. paid the remainder. The total is over $25K, but the (two) insurance companies have negotiated rates with the medical providers that lowered the total dollar amount of the medical bills substantially. My question is, when writing my demand letter, do I use the total amount billed, or the lower negotiated rates? Thanks for your time and I'll be sure to leave appropriate feedback once I receive your response.
AnswerHi JS,
I am going to first answer the question you asked, and then I am going to give you some information to help value your claim inasmuch as the gross violation of social conduct standards with THREE TIMES the legal limit will translate to more money from the jury. Hence, you will need some ammo to fight for that since the adjuster's computer valuation program does not include one dime for such things.
First, as for the medical billings. You will always claim the actual GROSS billing -- BEFORE ANY DISCOUNTS---assuming that your doctors will testify that the charges are BOTH reasonable and necessary as a consequence of the impact trauma your body suffered.
The tortfeasor does not get a discount because his victim had the foresight to buy insurance or because he or his agents worked a discount from the medical car providers.
The testimony that proves the value is from your doctor to the effect that her services AND her charges are BOTH reasonable and necessary. Normally we all assume that to be the case and the value of the claims is figured on the gross billing, before any discounts or waivers are allowed.
Now, as to what you actually will collect, there could be a fight if your state does not allow the collateral source rule. Most states DO allow that rule. The point of the rule it that the tortfeasor DOES NOT get to introduce testimony to the effect that your doctor waived some fees or that your insurance paid only part and you have no further obligations. Hence, in those states with the collateral source rule, you will collect the entire amount billed.
Since your insurer paid some of that billing in advance of your settlement, it is to be expected that they will put in a subrogation claim. http://www.settlementcentral.com/page0459.htm
Hence, you will pay back all that they paid up front, but you will retain your out of pocket payments. Does that make sense? Be sure to FIGHT against any attempts at subrogation for those amounts above your no-fault limits.
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Now, on to valuation, and the comment above about a higher value for you.
OK, JS, now is time to learn about valuation factors in personal injury claims; INSURANCE INJURY CLAIM VALUATION TIPS
What about valuation of your claim? How does one figure out what to ask for? Quick Answer: get as much as you can. Figure out what would make you happy, and increase that amount by at least 50%! The value is what you and the adjuster agree it will be. Well, if that is not scientific enough for you, let’s learn a bit more about valuation of personal injury claims.
Valuation is not like going to a drive-in for a fast food meal. It takes time and study of many factors, including liability and medical records. Plus, one would like to meet the claimant to see how she will “sell” to the other side and to the jury. Those online sources that mention a "rule of thumb" is just that: a gross estimate.
So, I have a short answer and I promise to give you the full longer more detailed answer if you ask me later, when you are ready to settle.
SHORT ANSWER: A common theme among those who still think a “rule of thumb” formula will put you in the valuation ballpark is to multiply the medical specials times a number from ONE to FIVE (depending upon factors, some of which I will give you later—or all of which are fully discussed in the members' side of my website, dealing with insurance settlements www.SettlementCentral.Com ). Then that figure is the total value of the personal injury portion of the claim. Of course there is a long list of factors to consider for adding or deducting from the total.
Let's take a look just two factors that put the lie to the general use of this rule of thumb. An obvious one is that if a person with your injuries is left to rely upon the records of a general practitioner to support his claim, it will never have the same value as if one’s records were from an orthopedic surgeon or a neurosurgeon, as you have. Oh, yes, I am aware that general practitioners and chiropractors seem to be better for most soft tissue injuries than taking drugs prescribed by a surgeon, but the insurance industry does not know that.
Insurance companies give great weight to opinions of orthopedic surgeons and neurosurgeons. http://www.settlementcentral.com/page0052.htm
A second, not so obvious, but very important factor that shows how inaccurate a “rule of thumb” formula can be is just plain location of the trial. Let's start with geography. Values differ from state to state, and within each state. City values are often different than rural values on claims, especially if the economy is tenuous in small towns. And the differences can be HUGE between these areas, even if only 20 miles apart.
Here is a listing of factors that will affect both the multiplier you will use, as well as the value of the claim inasmuch as they will increase or decrease the product of your multiplication.
1. LIABILITY DISPUTE
This is a big one because it most dramatically affects value. You should NOT ACCEPT any reduction in value for fault. Your fault cannot be used to reduce your award.
2. Trauma suffered
The value of your claim increases with a bigger crash, and decreases with a low damage tripping wherein one catches himself. Why? Just human nature. You probably had a BIG CRASH.
3. Medical special damages
Cost of medical and related health care expenses; higher costs usually equate to an increase in value (excepting, of course, cases of gross overtreatment).
4. Type of injury
Where does the injury fall within the insurance industry's "hierarchy list" of valuing injuries? Irrespective of which injury may cause more pain, injuries are valued according to seriousness, tendency to be persistent or permanent, and whether or not they need objective proof to be believed (e.g. a broken bone versus soft tissue strain).
5. Type of medical care
Where does the medical care fall within the insurance industry's "hierarchy list" of valuing medical care? Orthopedists at the top, chiropractors near the bottom. You did well with your specialists.
6. Prognosis- future care—permanency of injury or pain and suffering—does your doctor recommend 6 months of care, or were you done treating 4 months ago? Even if you are done treating, will the doctor predict future problems?
Your claim value gets a boost if your doctor specifies that you will need some future medical treatment, and right now the recommendation for surgery is important.
7. Your medical and claims history, prior accidents, prior injuries or treatment of the same area of the body.
8. Impairment of quality of life.
9. Quality and persistence of pain suffered.
10. Quality and thoroughness of your medical records.
11. Lost wages.
12. The legal or social stigma attached to the tortfeasor's acts.
(a) the social disapproval of the tortfeasor's actions, which in this case runs high inasmuch as we do not like drunk drivers.
(b) the favorable impression of the plaintiff, which in this case is good, partially because you do work that we all approve of (even if we never want to watch you do it!)
THIS TELLS US THAT YOU WILL HAVE JURY EMPATHY INASMUCH AS THIS IS THEIR FEAR, AND IT IS HIGHLY SOCIALLY UNDESIRABLE BEHAVIOR. HENCE, A HIGHER MULTIPLIER IS MERITED TO FIGURE GENERAL DAMAGES
13. The Insurance Company and Adjuster you are dealing with
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Dr. Settlement teaches bodily injury victims about successful insurance claims at http://www.SettlementCentral.Com Our members have access to a lot of information, but at least exposure to some of that on the free side of my site can be of benefit to you. Hence, I am going to give numerous pages of information just so you can get a flavor for how to make a successful auto accident insurance claim settlement.
One thing that is on the members’ side that is not on these free pages consists of an analysis of valuation based upon the social stigma placed upon the actions of some tortfeasors. For example, let’s consider two auto accident victims WITH THE SAME INJURIES. If one were hit by a drunk driver who then took off in a hit and run, that victim is going to get a HIGHER insurance injury settlement higher than someone who was hit by an innocent tortfeasor whose foot slipped off the brake. Why? Human nature, I guess. The jury has real people before it and in deciding between the two parties, the wrongdoing of the first one is going to be punished by awarding a bigger sum.
Of course that does not translate exactly to the situation where you are dealing with an adjuster. But when auto accident victims at www.SettlementCentral.Com learn insurance claim settlement topics, we always tell them to emphasize to the adjuster the wrongdoing of the tortfeasor, and of course, the great trauma suffered by YOU, the victim.
In this case you have one very important thing going in your favor: THREE TIMES the legal limit. Now, there may also be other things that you will need to remember to show how disoriented the driver was. You will keep track of those. You may need to fight this with the adjuster inasmuch as the adjuster will be under pressure to comply with the results of his computer valuation software. What you MUST insist upon is that he must take into account the fact that juries WILL PUNISH TORTFEASORS who commit gross violations of our social contract and injure innocent people.
The adjuster will try to tell you that the insured will admit liability and thus his intoxication will not be in evidence. BUT a good attorney can ALWAYS find a way through the testimony of witnesses or the investigating officer to get the fact of gross intoxication before the jury. AND hence you must insist upon the case being valued on the basis of the jury knowing those facts of intoxication.
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Next to last are a few free pages to give you some guidance in how to bring your own claim to a successful settlement. Now it is to learn how to submit and settle your own personal injury insurance claims—DO IT YOURSELF SETTLEMENTS.
Here is a series of pages that you can review. Take what makes sense to you and don't worry about the rest. Just get a flavor of how the system works without spending a ton of time right now.
Overview Tort Law Personal Injury Legal Claims http://www.settlementcentral.com/page3000.htm
Managing Medical Care After Auto Accident: http://www.settlementcentral.com/page0203.htm
Medical Care Documentation-the Key to Successful Personal Injury Insurance Claim Settlements http://www.settlementcentral.com/page0217.htm
Keys to a MAXIMUM INSURANCE INJURY CLAIM SETTLEMENT http://www.settlementcentral.com/page0089.htm
Outline of questions to be expected from insurance claims adjuster http://www.settlementcentral.com/page0190.htm
Detailed listing of questions to be expected from insurance claims adjuster http://www.settlementcentral.com/page0207.htm
By the way, did you know that getting an early settlement is a favorite trick of the insurance adjusters? Please see my website wherein we show Insurance Claim Adjuster Secret Tactics http://www.settlementcentral.com/page0092.htm
Responding to Settlement Offer From Insurance Claims Adjuster http://www.settlementcentral.com/page0244.htm
Do It Yourself Advantages, or do these claims need an attorney? As for an ATTORNEY, this does not seem to be a case that involves any legal issues in dispute nor any large or complex damages. Why should you pay someone one-third to do what you can do yourself? Do-It-Yourself Personal Injury Claims; Eliminate Personal Injury Attorneys' Fees; Save Thousands of Dollars Settling Your Own Insurance Claim http://www.settlementcentral.com/page3011.htm
Without having to join my website, I have given a lot of free information on handling insurance claims without having to join as a member. Read the module at "5 Easy Steps to Do-it-Yourself Insurance Claim Settlement" http://www.settlementcentral.com/page0102.htm
This stuff is not rocket science, but it will take some effort on your part to read and cut and paste letter examples and to communicate. But hundreds of people are doing it each day, and they are getting good results.
What if you get only two-thirds the way to your settlement goal? Well, you can get as big a settlement as you can and then turn it over to an attorney and save a lot of fees. Thus, you could go it alone just to get an insurance settlement offer, and then take that insurance settlement offer to a personal injury attorney, thus exempting the amount of the offer from her fees. Do It Yourself Personal Injury Settlement Offer Reduces Personal Injury Attorney Fees http://www.settlementcentral.com/page0109.htm
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FINAL TOPIC, JS: Effective communication with insurance claims adjusters. Establish Firm, Professional, and Positive Relationships With the Insurance Injury Claims Adjuster http://www.settlementcentral.com/page0059.htm
Always communicate with the adjuster in writing, showing your own analysis of value. It is OK I guess to have one call or so, but no more. Always have your information and ammunition in writing to give to the adjuster.
Let him know that you are FIRM IN YOUR RESOLVE to get what you are demanding (NOT "asking", since that invites a counter-offer, but instead "demanding" as fair and reasonable compensation) by asking him what the options are to resolve the matter fairly should he not agree to a reasonable claim value. In other words, let him know that you will go through with a court filing if need be.
Remember these tips, do your homework, print out your evidence, show resolve to get your fair settlement, and you will DO JUST FINE.
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
