QuestionIs this insurance settlement offer fair? 1/2 Brief history: We were involved in a no fault rear end collision over two years ago. We hired an attorney right away. Wife had complications about 6 weeks later, a Detached Retina. We both had therapy for soft tissue related injuries. After a heated discussion with the Attorney about the detached retina I instructed him to sue for maximum damage since there firm didn’t believe the detached retina could have been caused by two speeding cars hitting us (we were stopped on the freeway due to an accident in front of us) at 55 miles plus per hour. The other two vehicles were totaled while ours had minimal damage. The first car (SUV) wound up in front of us. This heated argument happened 1 year after we hired him. The Attorney resigned from the case 2 weeks later. I searched for 6 months trying to find another attorney to take this case to no avail. We then started working with our Insurance to file an uninsured motorist claim since my wife and I, nor could our insurance company, get a response from AFI (the other persons)on the claim. 28 days after the statute of limitations were up, guess what AFI contacted our insurance and said they had an open claim and they would take care of it. They did, they told us that the SOL has run out and they will not pay. I repeat they will not pay. We have turned this over to the insurance board and filed a complaint, there response was (long story short), that AFI did not respond according to the policy act they have to follow especially towards the end of SOL claims. They have to document they tried to contact us so many times before the SOL runs out. They did not. We were the only ones with insurance cards at the time of the accident. And our information was accurate. Our Insurance Company is offering half settlement on my part of the claim with no Pain/Suffering or time missed/lost (I’m self employed). This won’t handle my doctor’s bill much less anything else. We lost everything. HOUSE, CAR, everything because of this accident. No workie no money to pay for car or house. Any suggestions? Know any associates or co workers that might want to examine this case. The system doesn’t work for the little guys.
AnswerHi Jim,
As experienced in personal injury insurance claims as Dr. Settlement is, I cannot fix your situation from here. Moreover, I cannot recommend membership in our self help insurance claims website www.SettlementCentral.Com since legal issues appear to be what need some attention in your case.
ONLY an attorney can help you, and something does not sound right about the statement that you: "searched for 6 months trying to find another attorney to take this case to no avail." You and I will have to work together to fix that search so that you CAN attract an attorney RIGHT NOW.
I think that you and your claims are in bad financial shape and MUST be beefed up with some legal help. Hence, I am going to give you more than an hour of my time in an effort to educate you on why you are stuck and how to get unstuck and push this claim to a successful conclusion.
I think we can divide my answer into five issues, Jim, and organize them in a way that you can communicate with an attorney so that she will take on your claim.
Issue #1: Does your claim include a detached retina or not?
And is this the issue that drove away prospective attorneys or not? It sounds like your insistence that this was the result of the auto accident and the insistence on a trial is the reason your attorney quit and also the reason no other attorneys wanted to deal with you. Attorneys believe that they do not (want or) need clients telling them how to do their business. So if you were pushing the detached retina idea and the trial idea, it is understandable why no attorney would express an interest in your case.
The detached retina IS REALLY PART OF THIS CLAIM in your mind, and what we have to do is to figure out how to sell that idea to an attorney so she can meet with a doctor and sell the idea to a doctor.
Is it possible to suffer a detached retina in an auto accident in which the vehicle suffers only minor damage? ABSOLUTELY. The minor vehicle damage issue is troublesome because we want a dramatic amount of impact trauma if we are claiming a detached retina. I once had a friend try a case with minor damage to his client's car, which, unfortunately, he had not bothered to repair prior to trial. The defense attorney had the jury go out and look at the car. THAT did a lot of damage to the claims of injury by the plaintiff. So lack of damage to the vehicle might have colored the opinion of your attorney such that he would not seek to get a medical opinion supporting your theory.
BUT, at least in my opinion, some of the mechanics of transfer of impact trauma in today's vehicles are designed to save the vehicle, but transfer the impact trauma to the occupants. That force of impact has to go somewhere, and it can be dissipated in the occupants. Unfortunately, one might have to hire an engineer to testify to this fact if there is a real fight about lack of vehicle damage. But a detached retina is a large enough case in terms of damages to warrant spending a few bucks to hire an engineer if need be.
But I am guessing, Jim, that the reason your attorney would not or could not take on the detached retina as part of the claim is that you had no solid medical opinion that THIS particular trauma was the cause of the problem.
I have had clients try to include all kinds of medical problems in the case when there is no medical testimony to support it. That kind of speculative assertion does not make it into court because the court needs medical testimony to support any theory that a particular condition is caused by trauma. That is why your attorney would not get behind the idea.
What did I do about these claims by my clients? I tried to get medical proof by meeting with their doctors and speaking to the doctors about both the condition and its causes AND the low level of threshold for introduction of medical opinion in civil cases. The doctors are sometimes reluctant to do as you wished they would do in tying the trauma to your wife's detached retina MAINLY because they do not understand the low burden of proof. Doctors will not give their opinion unless they are satisfied on the basis of scientific proof, which is almost a certainty that something is true. By contrast, the attorney needs to educate them that their opinion in a civil case setting need ONLY be by a "more likely than not basis."
Are you following me on this, Jim? I have to guess at what happened since you did not tell me. But is it reasonable to guess that your attorney had no medical testimony to support your theory of the claim? In that case, it is the job of the attorney, if he believes in your theory, to go meet with the doctors. Think of how a doctor would be relaxed to learn that the burden of proof is making it one inch over the 50 yard line, NOT scoring a TD. Another way to describe the burden of proof is that it is the weight of a feather on one side of the scale. It is simply the "more probable than not" basis for their opinion that these doctors need to learn.
The injured accident insurance claimant at www.SettlementCentral.Com is educated self help how to show their doctors what the standard of proof is so that they can take some latitude in making their opinions, RATHER than use the high standard of scientific proof, as most still do.
Anyway, this is and will remain the key issue of the claim until an attorney can get to your doctors and induce them to make an opinion that it is more likely than not that the trauma caused the detached retina. And the first place you will have to start is to educate the prospective attorney with research you can do online. If my memory is correct from a case I had some time ago, this topic is well represented on the Internet. Look for associating some of these words with "detached retina": accident trauma, auto accident, accident impact, etc.
Make a little collection of quotes and links to the URLs and have that ready when you speak to the next prospective attorneys.
Issue #2: Emergency or not regarding timing on the third party claim?
We need to figure out whether or not you do have a third party claim versus a tortfeasor, OR is your claim versus the insurance company that failed to give you the statutory notice? This makes a difference both in terms of how quickly you must take action, AND whether there is a nice juicy target to attract an attorney: i.e. the insurance company.
You can answer this question on your own, Jim, by contacting the Insurance Board and asking them directly whether they reinstated the cause of action versus the tortfeasor, and if so, what is the new deadline by which you must file your lawsuit. OR, as is more likely, whether your cause of action is solely versus the insurance company now. THAT would be a nice thing to know when you try to find an attorney to help you. The attorney will be more attracted to take a case versus the insurance company. There will be a longer time frame for the claim versus the insurance company, so an attorney will not feel pressured to have to do something right away.
Issue #3: Why did your first party PIP or Med/Pay not get your medical bills paid?
Normally this kind of insurance will pay the bills, up to the limits of your policy. Check those limits, which usually range from a low of $10K up to $50K.
Then, do NOT let them deduct those from your UIM award. One tactic is to try to use the UIM limit as the settlement, but subject to subrogation rights back to your same company to repay the PIP. In most this should be fought on the basis that taking from the policy limits of the UIM to repay PIP or Med/Pay violates the policy of the UIM statute in that subrogation reduces the intent of the statute that the insured be put in the same position as if he were going against an insured.
Your attorney will argue that if the policy limits do not come up to the value of the claim, then the insured victim (that is you, Jim) cannot be "made whole" if he has to repay subrogation to his own company. And since subrogation is supposed to be an EQUITABLE right, instead of a CONTRACTUAL LEGAL right, the equitable thing to do is to allow the insured to be made whole by collecting his general damages (pain and suffering) BEFORE one dollar is paid back in subrogation.
I do not know how much you have heard about subrogation, so here is a good introduction to Subrogation http://www.settlementcentral.com/page0459.htm Forced Payback to YOUR OWN Insurer From Your Personal Injury Award. Www.SettlementCentral.Com members learn subrogation tips for negotiating discounts, but I think this is something your attorney will have to do for you.
Issue #4: UIM denial perhaps legal issue, not for www.SettlementCentral.Com membership.
There are five issues at play here, and only this fourth one, the UIM claim part regarding winning your personal injury claim www.SettlementCentral.Com is best for do it yourself insurance claims. There are a lot of ideas on how to present a claim and how to negotiate an insurance claim at www.SettlementCentral.Com since members are taught insurance claim settlements. BUT here again, I am looking back at what you said, Jim, and wondering if you will not need an attorney to discover why in the world they cut your UIM value in half. You should know that if they explained their offer to you, but maybe they did not, and just made the offer.
For this reason, you DO need an attorney since I am guessing there is some legal issue that you has not been communicated to you for them to do this. Just to be clear: in a case where there is no fault on your part, there is no legal way to cut the value of your claim in half. You ARE entitled to full pain and suffering under your UIM. Do you mean that they paid your full UIM limits, but the value of what they paid is about half the value of the claim? If so, that is all you get from your own insurance (i.e. the "limits" you purchased), OTHER THAN SUBROGATION MAGIC, by which you can require them to pay all of your medical bills up to the limit under your PIP or Med/Pay first party coverage. Once they have paid all of your bills, or exhausted your PIP limits, whichever comes first, you can fight them on subrogation to keep from having to reimburse your own carrier.
This can be kind of hard to follow, so PLEASE do not hesitate to shoot me a follow-up question to better explain anything that is even a bit confusing. OK?
Issue #5: How to get an attorney.
Attorneys are not like fast food places where anyone can order up service. Good attorneys DO in fact turn away MORE cases than they take. With the little information you provided me it is hard to guess why attorneys turned you down. The fact that personal injury attorneys do know how to take on cases that will earn them a good fee tells you that they do not see your claim in that category. OR they see you as a difficult client, and life in the law practice is hard enough without having the hassle of dealing with someone who is pushy. So those are my guesses as to why no one wants your case.
Here is what I would do. Ask the attorneys who turned you down (assuming you liked one or two) for a referral to an attorney with less experience. You may not need a good attorney, who has her pick of cases. Try one who may be a bit more hungry and willing to take on your claim. Since this claim require (in my guess, as stated above) an attorney with enough knowledge to sit down with a doctor, you do not want a beginning attorney. But there will be someone that experienced attorneys will recommend to you as a lead.
Two other tactics could help your interview. First, do not try to control how the case is going to be resolved. Let the attorney do that part instead of having to make her fight you.
Second, if you really cannot find anyone, or if you really want an attorney who says he is not interested, you can offer a higher fee percentage than usual. This is a way of dressing up your "bait" to attract an attorney. For example, if they usually charge 331/3%, why not offer them 36% or 38%? A couple of percentage points will not break you, but it might help to get an attorney more interested in your case. They are in business, so when they are worried about some aspect of taking a case, offering them a higher fee might turn the trick in your favor.
Good luck, Jim. Do not become discouraged because of the proof problems on the retina. An attorney can visit the doctor and educate him about the burden of proof and get him to make an opinion in your favor. Just go ahead and make effort to get an attorney ASAP, and use what I have given you to structure your attorney contacts.
I trust that my extra time devoted to your question has generated some information that is of value to you. May I respectfully request that you take the time to find the feedback format on this site and leave some feedback for me.
Thank you and Best Wishes,
Dr. Settlement, J.D. (Juris Doctor)
Www.SettlementCentral.Com
