QuestionLooks like the adjuster keeps the file on her desk even after the complaint is filed, regardless of the defendant being served (she told me this verbally). She also just added that my demand exceeds policy limits (I suspect it is $15-$25k). She is not upping her initial $10k offer. I will file the complaint stating "Plaintiff prays for for judgment for costs of suit; for such relief as is fair, just and equitable; and for compensatory damages. The amount of damages is according to proof" (this is the pre-printed language on the complaint form). Can I file interrogatories (#1 requesting policy limits) regardless of the defendant being served if I decide to delay service for 30 days? If I don't file a Statement of Damages with my complaint (my attorney did prepare a +$100k one), can I file that later? The form states "Do not file with the court unless you are applying for a default judgment under code of civil procedure 585."
Her repeated argument: my injury is "soft tissue" only, my condition is normal degenerative process for my age and no jury will give me what I want. BUT she's my friend, and understands how I feel and is bending over backwards for me...uh huh, right.
Anna
PS I think I owe you a few Starbucks venti lattes
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Sorry to bother you again! You said I should go ahead and file AND serve the defendant because of the risk of not finding her. I have 90 days to serve, know she is in town, and this would most definitely buy me 30 more days to negotiate a settlement with the adjuster, but you still think this is a big risk. If I serve the defendant and supply a courtesy copy of the complaint to the adjuster, please help me understand why a no-default letter really buys me any additional time with the adjuster. If the defendant has 20-30 days to respond to my complaint and summons, and I give written assurance to the adjuster I will not accept a default judgement without a 30-day notice, is it accepted practice for an adjuster to keep the file and try to negotiate a settlement during this extra time? Wouldn't the fact that a complaint has been filed and served be enough for Liberty Mutual to move it into the legal department? This is of course presuming my case is solid.
Thanks again (again),
The little pest from California
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Hi Dr. Settlement,
By the way,I did not let the other driver's insurance company (Liberty Mutual) obtain my medical records. I secured them myself and submitted them with my initial demand package. Also, when I file my civil complaint I am allowing a 30 day period to settle before we serve process on the insured.
A tip for other readers "How to Win Your Personal Injury Claim" 6th Edition, by attorney Joseph Matthews, Nolo Press was also helpful.
And of course the expert opinions of Dr Settlement!
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Hello Dr. Settlement,
Here's a quick summary: I'm in Northern Calif. (Bay Area). I collided with another vehicle at 40mph. Other driver was clearly at fault, cited and her insurance co. accepts full liability. I have settled on property damage for my car (totalled). I am now negotiating on bodily injury. I've had treatment for over 1.75 years. Starting with general practitioner, therapy, chiropractor, then orthopedic doctor, 2nd round of therapy, then 2nd chiropractor. Cervical MRI shows C5-C6 annular disc bulging, mild bone spur, narrowing neural foramina & impression on thecal sac. NO prior history of neck or back problems. I'm 42 years old, otherwise healthy (slim, athletic, non drinker, smoker) good driving record (no accidents). I am still suffering with lingering, intermittent pain, occassionaly stiffness & neck fatigue. Medical specials are $13k (10K w/ collateral source payments offset-Blue Cross med ins). I demanded $50k. First offer came in at $10k (my condition is not a result of accident, my treatment went on too long, blah, blah, blah). Adjuster will not disclose policy limits. I've opened a claim with my Ins. co. in case I need to pursue UIM coverage (if I end up with a policy limit settlement. I have $100k/$300k coverage). If we do not settle within two weeks I am prepared to file the suit/complaint in court. Am I protected in so far as pursuing a UIM claim w/ my ins. co. after the 2 yr statute has expired? Do I need to include them in the complaint, even if I do not know if I am up against the policy limit? Any way to get the third party insurer to disclose policy limit other than during discovery? Also, when is a Section 998 offer to compromise usually submitted to defendant? After the suit is filed? Do you recommend it? (I'm thinking about prejudgement interest, expert & Court costs)
Thank you!
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FOLLOW-UP POSTING
Hello again, Anna,
It occurs to me that I forgot to give you a direct answer to your questions regarding your UIM policy.
Yes, your UIM statute is based upon the contract law, and hence your statute will not expire in three months, but will continue on for some years. You can always ask your company in writing for their confirmation of the expiration date of the written contract statute (4 to 6 years is most common).
No, you do not include your UIM carrier in your complaint filed versus the tortfeasor. You start your UIM action with a petition for arbitration, or the like. That is, unless yours is one of those sneaky companies that has hidden its right to make you go through a jury trial for UIM disputes. Please see:
"Do you have the right to choose arbitration in UIM? Is your company deceiving you with a clause that removes your rights to arbitration?" on this page: http://www.settlementcentral.com/page8008.htm
Finally, you do not make the offer to compromise until after the litigation is started. In this case, as I suggest below, if you insist on going forward for one round of negotiations after the suit is filed, you can do that and then if you have to hire an attorney, she can then file the offer to compromise. Your attorney will want to have input as to what to put in that document.
Filing it now will not get you any advantages on prejudgement interest and costs that you will not already get when you file the offer later on once you have an attorney on board.
Best wishes,
Dr. Settlement, J.D. (Juris Doctor)
www.SettlementCentral.Com
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Dear Anna,
You have VERY SERIOUS injuries, worth a lot of money in case valuation. DO NOT EVER REDUCE YOUR DEMAND AT THIS POINT.
Look, Anna, I have a website where we teach people to settle their own insurance personal injury claims. And if you started there earlier, with six months to go before the statute of limitations, I would ask you to look at some of our free information for hints.
But at this stage, I am going to discourage you from going any further on your own. The reason is that you are too close to the statute, and getting a good attorney to help you is not like going thru a short-order drive-up window. Thus, I am going to suggest SEVEN things to do for right now: some are just reading and some are alternative courses of action (just in case you might insist on going ahead on your own).
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1. Do Not Negotiate Away Your Position.
2. CONSIDER USING A DOCTOR'S NARRATIVE REPORT to assist in settling the insurance claim.
3. Learn how to submit and settle your own personal injury insurance claims—DO IT YOURSELF SETTLEMENTS.
4. Policy Limits Tactics
5. Get an Attorney to File and Serve Your Lawsuit, and to Make Interrogatories for Policy Limits Discovery
6. How to Hire a Good Personal Injury Attorney for Representation—And Get FEE DISCOUNTS.
7. Establish Firm, Professional, and Positive Relationships With the Insurance Injury Claims Adjuster
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1. Do Not Negotiate Away Your Position.
If you do hire an attorney, she will not want to come in to a case wherein you have already negotiated below the place you need to be. I would think that your valuation is just about where you should be, and if I were the attorney, I would not want to come in and take on a case where the client had shown a willingness to go beneath what I think is a proper position. If you insist on getting in one more round of negotiations, follow the last paragraph here, and do it ONLY IN WRITING. Also, drop down no more than $2,000, maximum.
In my site we teach people how to make a “second salvo” letter after the shock of the first offer. One thing to do is to attack their defense head-on with both arguments and new facts.
What would you argue? Tell the adjuster that he and his supervisor are not doctors and they are not authorized to make medical opinions as to what is caused by an accident. Tell him that they are not witnesses and their opinions count for nothing once this case goes to trial. They have no testimonial knowledge. They are bound to adjust the claim in good faith, and thus, unless they have some medical opinion to back up their statements, they must give due credit to the opinions of your doctors.
Also, we teach our members to use new facts in the second salvo letter. Recite something new that shows you had no prior problems and were quite active, and then go on to recite some problem you are having at work sitting or standing too long. Tell them that if it were not for your Spartan attitude, you would have been off work a lot more than you were.
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2. CONSIDER USING A DOCTOR'S NARRATIVE REPORT to assist in settling the insurance claim.
It sounds like the adjuster may not appreciate the seriousness of your injury. Maybe the records he got are not all that good. Have you seen any of the doctors' records that went to the insurance adjuster? If not, it is easy enough to get a copy so you can make sure that everything of importance you discussed is included therein IN READABLE FASHION.
Cryptic notes may be medically significant, but why make the insurance adjuster struggle to figure out the significance of the injuries? A narrative report or letter spells things out so the adjuster can see, read, and understand the doctor's diagnosis and prognosis and her record of the problems and pain and suffering you have endured.
Plus, narrative letters can tie together the trauma and its after-effects in a way that is authoritative.
We recommend that claimants almost always include some type of typewritten medical information to accompany to computer coded medical records and/or handwritten records. That is the first clue as to when to use the narrative report: if you are asking the adjuster to evaluate your claim on the basis of handwritten records and/or computer coded records that indicate diagnosis and treatment codes, then you need to supplement the record with a narrative report.
We have a lot of free legal tips on insurance claims settlements using doctor narrative reports http://www.settlementcentral.com/page8003.htm. You can get information there as to how to ask for a narrative letter and what it might cost. Talk to the doctor's office manager about it.
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If you insist on making another round of negotiations, then do these three things:
a) become knowledgeable on how to make a do it yourself personal injury insurance claim settlement;
b) learn about policy limits claims and subrogation; and
c) get an attorney to file and serve your lawsuit, along with a set of interrogatories. That way you can negotiate for a bit if you give the adjuster written assurance that you will not take any action against his insured without giving 30 days written notice of your intention to do so.
That last part is needed to keep the file in the hands of the adjuster and not transferred to a defense attorney.
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3. 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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4. Policy Limits Tactics
You are on the right track to make inquiry of the policy limits. What if the tortfeasor has only $15,000 or $25,000 or something like that for insurance limits? You could get that amount by yourself instead of paying an attorney $8,333 to get it for you.
You need to read up a bit on policy limits claims. There is nothing you cannot handle yourself, including a subrogation reduction letter to your own insurance (PIP or health, or both).
You can learn how to do this yourself. Directory of Legal Information Liability Insurance Policy Limits Settlements in Personal Injury Insurance Injury Claims http://www.settlementcentral.com/page0451.htm. This stuff is not rocket science, but it does require some reading and some work on your part. Still, the savings in a big and obvious claim such as yours is tremendous.
If you get an attorney to file and serve your lawsuit and draft you just two questions in interrogatories, you could discover the limits. In direct answer to your question, I know of only two states with laws requiring the adjuster to reveal the limits upon request. Thus, formal discovery is usually the only way—but that is not all that difficult. There is no magic format for interrogatories. Just ask a couple of questions. Maybe go to your county clerk and ask to see a couple of files that she knows might contain a set of interrogatories just to get the format. Or go to a law library and ask for Am Jur 2nd Forms. They will have a full set of interrogatories, including ones for policy limits. Once you are in litigation, they have to answer the policy limits question.
BUT BE CAREFUL WITH POLICY LIMITS inasmuch as you need to be sure your own UIM carrier has a chance to buy out your settlement offer (in case they might want to sue the tortfeasor directly). Also, you will need to do some subrogation reduction work if you get a limits settlement. California does have a “made whole” precedent, so you argue that the tortfeasor’s limits were too low to make you whole, and thus the subrogated interests of your PIP and health insurers should be waived.
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5. Get an Attorney to File and Serve Your Lawsuit, and to Make Interrogatories for Policy Limits Discovery
To do this you need to shop around. For younger attorneys $400 or $500 cash will be a good thing. They will not appear for you: the papers will be drafted pro se. You will have to hold the attorney harmless should things go badly in the lawsuit.
You will need to send the adjuster some written assurance that no default will be taken against his insured unless you give 30 days written notice of your intention to do so.
Then this will give you two things: 1) the power to use policy limits leverage if the tortfeasor has low limits; and 2) a demonstration to the adjuster that you are very serious about your claim and will not just take a minimal offer and go away.
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6. How to Hire a Good Personal Injury Attorney for Representation—And Get FEE DISCOUNTS.
Here you need an experience attorney. I would suggest that you inquire as to whether or not they are members of the American Association for Justice (formerly American Trial Lawyers Association) and the CONSUMER ATTORNEYS OF CALIFORNIA (980 9th St. Ste. 200; Sacramento, CA 95814-2721; PHONE: 916/442-6902; FAX: 916/442-7734; CAOC@aol.com).
I guess that the main thing would be to have a member of the California Trial lawyers—aka that Consumer Attorneys group. Why? Because then you have some assurance that the attorney does a lot of personal injury work and will be kept up to speed with monthly newsletters, etc.
NEGOTIATE with the attorney for a fee reduction for three things. First, get a reduction for any offer you have in hand. There are different ways of doing this, but just so you get some credit for having an offer. Second, get a reduction in fees for any policy limits settlement that is on a limit of $25,000 or less. In other words, as to that, the fees should be less than one-third inasmuch as that should be nearly a “gimmie”.
Third, get a reduction on your UIM claim, unless it goes to trial or arbitration. There is no risk of losing here, and absent a trial or arbitration, this will be mostly office work. Why should you pay a full one-third?
Fourth, get a commitment to have her do some subrogation letter writing and negotiation for reduction in subrogation for free or at no more than 15% of the amount saved. If she has to go to a trial or arbitration, then 25%.
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7. FINAL TOPIC: 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.
That is about it, Anna. 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
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Oops, while I did compliment you in my last answer regarding the usefulness of the Mathews book, I STRONGLY DISAGREE WITH NOLO if it is their recommendation to wait thirty days to serve the lawsuit when you are up against a statute of limitations deadline.
It is hard enough to find many people two years after an accident. And you only have 60 to 90 days at most to get the lawsuit served, or else your filing will not be effective to toll the statute of limitations. So I think Mr. Mathews and NOLO are WRONG in advising you to try to settle the claim before serving the defendant.
Here is a link to the SettlementCentral.Com statute of limitations legal resource page:
http://www.settlementcentral.com/page0452.htm
To save you from searching that page, I will present our thinking on getting your service done ASAP.
"Plus, even aside from the workload burden on attorneys brought by last minute tort case filings, there is the prickly problem of personal service of process against the defendant. Contacting the insurance adjuster will do you no good; she will never voluntarily reveal the location of her insured-even IF she does know.
If you have waited until one month prior to the expiration of the statute of limitations, then-given the mobility of our society-there is a good chance the defendant will not be where he was years ago at the time of the accident, and he may even have left the state.
Defendants have to be served within a certain number of days (usually 90) following the date of filing of the lawsuit, so you are putting great pressure on the attorney to locate and serve them, or to arrange substituted service, such as publication or service via your state Secretary of State of Department of Licensing.
But these latter two means of service are fertile grounds for malpractice because there are special technical rules for using substituted service, and one error will kick out the lawsuit. Sure, the defense attorney may have a copy of the lawsuit that you sent to the insurance adjuster, but that alone does not constitute service.
And with substituted service, all it takes is just one technical error to doom the entire effort.
And, guess what, the defense will never tell your attorney that she made an error until they make a motion to dismiss for lack of personal jurisdiction WELL AFTER the statute has run, so your attorney cannot possibly correct her error and re-serve the defendant in time. The casebooks are littered with the skeletons of otherwise promising lawsuits that remain forever barred because of non-compliance with a substituted service statute."
It costs little to serve someone, and I recommend that you do it ASAP after you give the adjuster her copy of the lawsuit. I suggest that you file the lawsuit and mail a courtesy copy to the adjuster, with the court filing stamp and cause number on it. You will include your no-default reassurance letter with that package.
Only AFTER you get the copy to the adjuster do you then send it out for service. That way you preserve the credibility of the adjuster with her supervisor to the effect that she is still has control of the situation and that you can be trusted.
Serving the defendant before sending out your courtesy copy and letter will guarantee that your case will be removed from the adjuster to the defense attorney.
While the NOLO book surely is filled with many good ideas from the perscective of an attorney, we at SettlementCentral.Com are BOTH attorneys and insurance adjusters, so that may be why the difference in approach to this topic. Our SettlementCentral.Com insurance adjusters are able to present the position of the insurance company, and to guide our members as to what will work best to achieve any particular goal.
Best wishes,
Dr. Settlement, J.D. (Juris Doctor)
www.SettlementCentral.Com
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No problem at all answering your questions, Anna.
The USUSAL AND ACCEPTED practice is to take the claim over to the litigation department just as soon as a lawsuit if filed. They will not wait until the insured is served. So waiting to serve the insured does not gain you anything but saving the $40 process service fee.
Sometimes the company is not interested at all in a no-default letter. In fact, that is probably the usual mode of internal handling the claim. There is just too much risk of an adjuster overlooking a file deadline, so why not just have the attorney put in her notice of appearance so as to protect the company?
So, usually, absent any upfront agreement with the plaintiff’s attorney, the file will be sent to legal just as soon as they get a copy of the filing, and irrespective of when their insured is served. Thus, the service on their insured is not any particular trigger to move the file along: they will do that when it is filed, unless you have already worked out an arrangement to retain it in that adjuster’s hands.
Just my old-school way of thinking of things, but I used to like to give the adjuster another bite at the apple now that she knows we are moving forward with a lawsuit. I always thought that she would be more willing to fight for more money with her supervisor than the legal department.
Why? The legal department has its own goals, which may not mesh with the goals of the adjuster. Most often legal is in HQ, and NOT even in the same city as the attorney who will handle the claim. It is going to be an outside contract attorney. Or if it is an employee attorney, she will be in an office in or near your city, but the litigation department will be back at HQ.
I would not wish to cast aspersions at defense attorneys, but if they are on contract (as most still are) they get paid by the work they do, and so it seemed that they always wanted to run up some billings by starting discovery RIGHT AWAY.
Hey, sending out a set of canned interrogatories and setting up a few depositions is easy work and it pays well. They have no incentive to move directly into settlement mode. Does this make sense?
On the other hand, the former adjuster most often will lose the file in litigation. Although sometime companies (State Farm comes to mind) allow the original adjuster to stay in charge of the file through litigation.
It always seemed to me that the first adjuster might have more incentive to resolve this thing before it becomes a full blown trial. I discussed this with our website adjusters and they concurred and even went so far as to say that companies DO keep track of what percentage of an adjuster's files get settled, versus the number that go to trial.
NOW, that is the background on your question. I have no recollection of deals with Liberty Mutual and our adjusters have not, either. We do not know their processes. Mo' Betta you speak directly with your adjuster.
Let her know what you are planning to do, and ask her what kind of letter would work for her to maintain the file in her office for a chance at getting a settlement.
Who knows-----she might just say to send the lawsuit because she has no desire to deal with you anymore. That would be short-sighted on her part, but you will have to abide by what that particular regional manager has set as their policy.
I do not see them changing the policy of retaining the file versus passing it along just based upon whether or not the insured was served. Usually they will send the file along to legal just as soon as they get a copy, UNLESS the plaintiff’s attorney has alerted the adjuster and REACHED SOME AGREEMENT ON THE TYPE OF NO-DEFAULT LETTER SHE WOULD LIKE.
In your case, it appears that the defendant is stable, so the risk of losing track of her is minimal if you were to wait to serve her. Thus, this does not seem to cry out for immediate service, and if you feel that waiting for service would encourage your adjuster to make another offer, then I do not see anything wrong with that choice. After all, any increase in your offer should result in a larger discount on your attorney’s fees later on.
I used to call the adjuster and discuss with him how he wanted me to proceed. That again, is a sign to his supervisor that I could be trusted to try to work through our differences in good faith. Maybe a little note at this time to that effect would help to pave the way for the adjuster to retain the file. She would like to get the matter off of her desk with a settlement, as opposed to having it be recorded as a loss of file to litigation.
Hope this clears up your questions, Anna.
Dr. Settlement, J.D. (Juris Doctor)
Http://www.SettlementCentral.Com
AnswerHi Anna,
Thanks again for the nice comments on the feedback forum.
With regard to the limits, I am guessing they are low, as you suspect. Yes, you may send along the interrogatories with the lawsuit. They technically will get extra time to send their answer, but most adjusters are not interested in playing "hide the ball" and just want some paper to cover any liability. Thus, my experience has been that they would send the declaration page if I faxed them some interrogatories.
BTW, do you have access to a law library for AmJur 3rd FORMS? That is where the format can be found. No big secret deal. Just use Word legal template from Office and use the introductory language you find online or in a form book. Or pay your attorney $50 to have her copy a set for you to copy.
All you have to do is to ask like three questions. First, was there any policy of insurance covering that car and/or that driver? Second, identify the company, policy number, etc. Third, Please state the policy limits of said policy of insurance with respect to bodily injury per person and per occurrence.
That is it. Leave room for them to answer below the questions. Ask your attorney or county clerk how many copies you should serve. Usually it is an original and one copy.
Yes, file statement of damages later.
NO, SHE IS NOT YOUR GOOD NEIGHBOR AND NO, YOU ARE NOT IN HER GOOD HANDS. With a neighbor like her, you would move away, and her good hands are picking your pocket.
She is total BS. Once you find out the policy limits you will have to make sure your own company will allow you to settle for them. There is a little mention of that here:
http://www.settlementcentral.com/page0451.htm
Then you make an offer to settle for the limits. DO IT IN WRITING SO AS TO PRESERVE A CHANCE AT A BAD FAITH CLAIM. In fact, do not speak with her at all. Did I not send you the part about not talking to them?
You recite all of what she said in your letter because should you ever end up in a bad faith claim, it is well to have a good accurate record of the reasons she gave for refusing to pay policy limits when any reasonable professional could see that such was warranted.
That kind of degenerative BS pisses me off. What, you are 70 yoa? Even then, you were getting along fine before this doofus hit you.
Best,
David
