Auto Insurance Claims: Involved in Auto Accident 7 years ago, s max, corner of my eye


Question
I was involved in an auto accident over 7 years ago.  I was driving in a funeral precession, was crossing the street and the light turned red.  I continued on and from the corner of my eye, I saw a car approaching towards my side of the car (I was driving).  I tried to avoid getting hit, to no avail.  I ended up having to climb out the car window and the car was not drivable at all.  She told me that she didn’t even notice a funeral precession was taking place, yet when she got the ticket, she told the cop that there was a pretty big gap between my car and the car ahead of me, so she thought it was over (which of course, just doesn’t make sense).

Since then, my whole left side of the body has been screwed up ever since.  Almost every day I'm in pain.  I've seen numerous specialists and have been told many things.  I've even been to several physical therapists.

The only thing that seems to help is manual therapy, stretching daily and muscle strengthening.  If I happen to skip a session of manual therapy (which I go to weekly), I end up back in pain.

I haven't been diagnosed with a permanent condition, just chronic.

We are scheduled to go to court next week.  According to my attorney, it will be a jury trial.  I'm not very comfortable at public speaking and am worried about how I will come across once I'm on stand.  I asked the attorney if he thinks they will settle out of court, and he said probably not because he is asking for the insurance policy's max (what ever that was, he didn't know at the time).

The first offer from them was 10,000.00 (over 3 years ago) and when we went to arbitration, they said they didn't think they were liable and offered 0.  I want to say, the arbitrators said they felt the case was worth $20,000.00 at the time, even tho there was no idea what was going on with me (physically) at the time.  My attorney said not to worry about what they thought and that it was normal for the apposing attorney to say that they didn’t feel their client was at fault.

The best I can explain the pain is the muscles on the left side of my body (from my hand to my toes) is like one very tight rubber band that just never relaxes.  It's so tight that it causes my pelvis to become off balanced which on bad days, I end up limping.

I've pretty much learned to live with the pain and just move forward.

Without question, the other driver is as fault, but I'm worried because I haven't been truly diagnosed with a "condition", it will haunt me.

My health insurance has picked up all my medical bills (except for co-pays), but I only have a limit of $3,000.00 limit per year for therapy.  Since I go every week, in less than 2 months, I will be SOL and will probably end up being in the same position as the first day I started going (my biggest fear).

Because I've been to so many different doctors, I'm worried their attorney is going to ask me who, when and how long I saw so and so and what did they say about the situation.  Which of course, I would have no clue at this time.  
Any tips on what to expect and how I should approach speaking in public without sounding to nervous (which I think the jury may feel I'm not telling the truth)?

I have an appointment to see the attorney the day before so I can go over some details with him, but so much has gone on since then that there's just no way I can remember who I saw, when I saw them and what they concluded.  

They’ve also deposed at least 3 of my doctors and of course they took my statement years ago.  Ironically, my attorney did not depose the person who hit me.  He claims she lived in Frankfort (married a guy from the army), and now lives in Virginia.  I personally think he should have deposed her and worry that he’s slacking big time.

All I know is almost everyday since the accident, I've been in pain.

The insurance company we are suing is State Farm.  As part of the settlement, we will ask that they reimburse all the medical plans that have since paid the bills.  But, what happens to the bills for the future?  

By the way, I was involved in motorcycle accident 17 years ago, but never sustained any personal injuries from it.  I have a feeling they may try to blame my condition on that accident, which if it was the case, I would have been in pain prior to the car accident.

4 years ago, an elevator door slammed into me at work (while walking into an opened elevator, the door did not sense me and started closing which slammed into my left shoulder).  The only injury from that case was that my left arm turned very cold on and off for months.  I settled that case for $20,000.00.

Any suggestions would be greatly appreciated prior to June 13th.
~Cindy

From Illinois

Answer
Dear Cindy,

I am VERY CONCERNED about your apparent lack of preparation, and by some comments made about your attorney, so I am going to give you at least an hour of my time trying to help you at this late date.  

First, don’t go into a panic: if the attorney fails, he has malpractice for you to fall back on.  But let’s not think that way; let’s trust that your attorney did win the arbitration, and hence he should prevail at the trial.  After all, he did win at arbitration, although one would think that $20,000 is a bit on the light side if your doctors have supported what you told me in their records.  I suspect that your attorney is doing OK, even if he has not communicated with you as you might wish.  Contrariwise, I suspect that it is your doctors who are responsible for any undervaluation of your claim by reason of their failure to listen to you and to make an accurate record of what you are suffering.  

There is not anything you can do about that at this date.  So don’t panic now.  Just take it easy on yourself.  This trial is NOT A SPEAKING IN PUBLIC PERFORMANCE: the jury is not expecting a polished performance because they are regular folks, just like you.  Don't worry so much: you are not trying to fool anybody; all you have to do is to tell the truth, AND TO BE PREPARED.  You are taking care of the being prepared part right now.  There are two parts to your question.  The first deals with what you should do, and the second is a concern about the competency of your attorney.

COMPETENCY OF YOUR ATTORNEY—MANY QUESTIONS AND RED FLAGS
Let's wonder about the second issue right now.  Why has your attorney not brought you in LONG BEFORE THIS to go over your testimony?  Well, sometimes we think the last minute is OK since the client will be fresh just before trial.  Also, sometimes we think that we can get a last minute settlement and “sell it” to the client, so we do not make all the preparations that one would like to see for a jury trial.  One would think that If your attorney has already tried your claim in arbitration, then he is pretty much prepared to go to a jury trial.  

But in truth, there are so many issues to go over and to rehearse that a meeting with the attorney two weeks before trial would be preferable.  Nothing you can do about that now, except to study up on your records.

Next, your attorney has not deposed the adverse party.  If she is a party to the lawsuit, she should have been deposed unless the accident facts are so obvious that it would be a waste of time.  But the other side did not admit liability, so she might surprise your attorney at trial.  I wonder why he is taking this risk since the adverse party is not admitting liability.  One would want to get her version down or record and to know what she is going to say long before she takes the witness stand at trial.

In truth, I have done as your attorney is don’t a few times, but NEVER when there is a serious question of liability.  Part of the reason why is that the jury can find in your favor, but as a nod to the other driver, also find that you were partly at fault.  So if they were to find in your favor and then reduce the award by 20% for your contributory negligence, how would your attorney explain to you that it was not necessary to depose the adverse party?

Next, one wonders why he has not yet ascertained the amount of the policy limits.  That is among the first questions an attorney will include in his first set of interrogatories.  By the way, did he send out such a set?  Maybe he knows the limits and he has not told you.

Finally, one wonders how your Underinsured Motorist coverage (UIM) is going to be activated.  Please see Directory of Legal Information on Liability Insurance Policy Limits Settlements in Personal Injury Insurance Injury Claims: Car Accident Injuries http://www.settlementcentral.com/page0451.htm  If the other side were to tender their policy limits at the last moment, has your attorney prepared your UIM carrier for its right to intervene?

There is a lot of ground work that needs to be done in order to pursue your UIM claim and one hopes that your attorney has done so already because there is also a time limit on when you can make the claim.  He probably already has in mind a procedure for your UIM claim, but he has just not yet communicated it to you.

One other thing that is bothersome to me is the fact that you went in to an arbitration trial and now apparently the defendant is going to appeal.  There are two concerns here.  The first is that from what you tell me, you have a VERY SIGNIFICANT soft tissue injury that appears to be a permanent partial disability.  The problem is, as you point out, your doctors have not made a good enough record to support such a conclusion.  Maybe you are exaggerating to me, and they have it right in their records, but I suspect the opposite: your doctors have not articulated the seriousness and permanency and need for future care that you are conveying to me.  

This is not your fault, and it is only tangentially the fault of your attorney.  It is a common practice inasmuch as most doctors do not want to take the effort to support injury claims for fear of having to go to court to testify.  But if in fact their records do not support the seriousness that you have communicated to me, then you might be stuck with a valuation that is a lot lower than it should be.  This truly is a common problem, and we address it on our website inasmuch as the medical profession—including chiropractors—is often arrogant and will not take the time to understand and to record what their patients are going through.  Moreover, some treatment modalities, particularly such as physical therapy, will almost always paint a rosy picture of how their work has improved the injured patient.  After all, that is essential to their getting any further referrals, isn’t it?

There is not too much an attorney can do in such circumstances, other than try to get the client in to a doctor who is willing to take the time and effort to listen to the patient and t make an accurate record.  This is not easy, since your attorney does not want the defense to be able to level a charge of “doctor-shopping” at you.  So, if your claim is undervalued, then look first to the doctors and physical therapist, NOT at the attorney.

This brings up the second point of concern about arbitrations.  This is a little late to be asking about now, but if your claim is really worth what it appears from your own complaints made to me above, then why did you qualify for mandatory arbitration?  Did your attorney explain whether or not this was a mandatory arbitration?  Most states have a provision whereby claims of a medium value, say $30,000 and less, have to first go to mandatory arbitration.  In Illinois, this is your Supreme Court Rule 86: Actions Subject to Mandatory Arbitration.  It provides: (b) Eligible Actions. A civil action shall be subject to mandatory arbitration if each claim therein is exclusively for money in an amount or of a value NOT IN EXCESS OF THE MONETARY LIMIT authorized by the Supreme Court for that circuit or county within that circuit, exclusive of interest and costs.
What this means is that your county has set the maximum value for arbitration, and at some point, your attorney agreed that your claim was less than this value.  Has he told you what that value is?  Also, has he told you what would happen should the jury come back with a verdict in excess of that value?  In most states, once the attorney agrees that the case qualifies for mandatory arbitration, that is the limit that can be awarded, but hopefully Illinois is different and you can get a jury award in excess of that arbitration limit.  Or maybe your county set the value very high.


WHAT YOU SHOULD DO NOW: PREPARING FOR TRIAL ON YOUR OWN
Here is what I would do now: 1) Review questions you might be asked; 2) Review how the injuries impacted your life, including lost wages, pain and suffering, and loss of enjoyment of life; and 3) Review your medical care history.

1) Review questions you might be asked.  Your attorney will go over these with you.  But here is an advance list of a few ideas relating to the accident.  Have someone ask you these questions and see how you answer them.

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

2) Review how the injuries impacted your life, including lost wages, pain and suffering, and loss of enjoyment of life.  Make an outline of ideas, and ask friend, family, and co-workers for ideas and what they observed.  Keep written notes and turn them over to your attorney.

3) Review your medical care history.  Get your attorney to make copies of your medical records and read them over and make notes and think back on how you felt at that time.  


If you do all of these things ASAP, you will be prepared for your meeting with your meeting and better prepared for your trial.

Remember these tips, do your homework, print out your evidence, show resolve to get your fair jury award, 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 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