QuestionQUESTION: After reading the many entries,we should all be grateful there is someone out there to help us all look out for ourselves!
I am writing to ask for some advice on how to handle the claims adjustor without "hanging myself". I went to a mutual friend's Halloween party and after arriving 8 minutes prior,I tripped on pool's sharp corner edging/coping. Backyard was dark for party with pool water died dark red for the Halloween theme, so it wasnt easy to see corner of pool which was accessible at the edge of porch. Anyways,I was following owner who was taking me further in backyard to where other friends were located. Being familiar with pool-edge, he jumped over corner of pool. I, however didnt. One side of my body fell in pool while my hip bone took a hard-direct hit to sharp edging of pool causing me to black-out for a second. Long story short, I have a lower back protrusion L5-S1. I tried working for a few weeks into it, but my job requires standing all day and I was more in the way than anything-with my coworkers trying to accommodate me. The Ortho dr took me off work and Im having my 2nd spinal epidural tomorrow am. Its been a bit challenging because im not a tv or movie person, and injury is quite debilitating. I asked for physical therapy to speed up process to get back to work, but dr says it will irritate nerve causing more problems. This is not the time to be out on medical leave if you are fortunate to have a job these days. Anyways, the homeowners have been quite nasty slinging personal attacks (asking, How do they know that I wasnt drunk to cause this?)
I WAS THERE 8 MINUTES!!! Almost 2-months after incident and I had to fight with them to get get insurance info. The claims adjustor contacted me and questioned me, wanting to see my shoes I was wearing(tennis shoes)and pretty much trying to find holes in my story. He is coming to the house in a couple of days to meet with me. At this point, I am really tired of fighting and defending myself to everyone, like I am inconveniencing them. I am feeling uncomfortable about this whole process that I need to think about involving an attorney, although I would rather not go that route. Any suggestions? I thought about meeting with adjustor, and than see how I felt about things after...
ANSWER: Hi Ami,
Thank you for taking the time to read past answers and for your generous comments. BUT, you may want to rescind those comments once you read what I have to say.
I have handled some swimming pool cases; yes, we DO have a few pools, even in cloudy and rainy Western Washington. What I encountered in each case was some stern resistance, more than other premises liability claims.
It sounds like you are going to meet resistance to a fair settlement offer. They are attacking you on the grounds of both liability and damages. And since this could be a tricky case, I am thinking that you might want to explore and consider hiring an attorney. Find an attorney who has EXPERIENCE in premises liability claims. She does not have to have handled pool cases per se, but she MUST have taken a premises liability case to a jury.
Yes, it is true that Dr. Settlement helps accident victims settle their own insurance claims, and his website, www.SettlementCentral.Com is the best resource for self-help personal injury insurance settlements. BUT, we also know that some cases are best handled by an attorney because they offer the tortfeasor's attorney too many opportunities to defeat the claim, or at least to diminish its value.
The issues here are too sensitive and subject to adjuster's tricks that I would cancel the meeting if I were you, and take on a couple of interviews with experienced attorneys.
The adjuster is NOT "like a good neighbor" and with him you are NOT "in good hands", since he has his hands in your pockets grabbing for your money. He is not there to give you some empathy and find a way to work together to settle this amicably. Instead, you have given him a free pass to trap you and thereby get your testimony down in recording, ALL BEFORE you have a chance to be prepared by your attorney.
There are many questions that he will ask and you will be bound by them at the later trial. When we trial attorneys meet with our clients prior to a deposition, there is a complete review of all the relevant facts, and we get to discuss how a proposed answer might appear to a jury. This is called "sandpapering the client". It is completely ethical since the purpose is to communicate the truth.
But by meeting with the adjuster now, you are foregoing this important benefit. Do NOT go through with the meeting and "see what will happen." You will have diminished the value of your claim, and in exchange you will have received NOTHING whatsoever. Does that make sense?
Best Wishes,
Dr. Settlement, J.D. (Juris Doctor)
http://www.SettlementCentral.Com
---------- FOLLOW-UP ----------
QUESTION: Thanks for your advice. I had alot of red flags going up for me and I was really not comfortable meeting with the adjustor since he was already trying to find holes in my story. I was relieved when the insurance company was finally involved so I didn't have to deal with nasty people anymore... It has gone from bad to worse. Did I mention that I have same homeowners insurance, thinking this would smooth it out some. The fact that a swimming pool was involved makes it more complicated than just a simple tripped and fell injury? We told them to make sure they blocked corner of pool /walkway, so no one else fell. After we left, our friends said they moved a big ice chest to cover corner of pool which was in middle of walkway. Isn't that negligence on their part? I trully appreciate all the knowledge and info that you are providing. I do know what needs to be done, I just want to make sure I'm not jumping the gun.
AnswerHello again, Ami,
Sorry for the delay, but Dr. Settlement took a little winter driving trip and I just got back this afternoon. I am not sure what it is you want for me to do this, time, so I will just quote a couple of your sentences and try to address any issues you raised therein. Plus, I will add some info on negotiating attorney fees at the end.
#1. Ami: "Did I mention that I have same homeowners insurance, thinking this would smooth it out some."
ANSWER: No, it will make any difference whatsoever, except in just one instance. First off, the claims department has no idea nor any care where you are insured for your own homeowners. They have their own guidelines and goals and there is not one chance in a thousand that they will even know where you are insured, OR (even if you told them) that they would let that info in any way influence their valuation of your claim.
They will negotiate the claim with you just as if you were insured by any other company, except in one possible instance. If you were to have an insurance agent that you purchased from, and if you have been with the company for awhile, and if the agent can be convinced that you are being treated unfairly and hence to agree to make an inquiry on your behalf, THEN the claims department might take note of your contract and that might have some little sway in how you are treated.
#2. Ami: "The fact that a swimming pool was involved makes it more complicated than just a simple tripped and fell injury?"
ANSWER: Yes, this may just be my own prejudice based upon my own experience, but the store examples or the rotten stairs in the apartment example both have a lot of solid case law that gives a little guidance as to standards of reasonableness for those kinds of cases.
Plus, my own pool episode cases always revolved around a party atmosphere, so maybe that also contributed to my idea that pool cases were tougher to prove. DO NOT let this deter you, Ami. It is just one attorney's experience in my few pool cases. BUT I do think it is a relevant thing to think about if you are deciding whether or not to hire an attorney inasmuch as some professional help may be needed.
You never asked me about my opinion as to whether or not you have a good case. If you had shown up at my office back when I was practicing law, Dr. Settlement would have taken your case with no reservations whatsoever. You have a good case, Ami, and do not let any adjuster try to manipulate you by telling you any different. From what you have told me, I think that they are 100% at fault and you are ZERO percent at fault. Do NOT let the adjuster try to get you to admit any fault. Stop him in his tracks and do not let him put that idea on the table.
#3. Ami: "We told them to make sure they blocked corner of pool /walkway, so no one else fell. After we left, our friends said they moved a big ice chest to cover corner of pool which was in middle of walkway. Isn't that negligence on their part?"
ANSWER: No, placing the ice chest in and of itself is NOT proof of negligence. However, it IS POWERFUL evidence that there was a corrective action that could and should have been taken. Hence, it is excellent evidence in your favor, and your attorney will hammer this again and again as an easy cure that should have been taken, ESPECIALLY in light of the circumstances that made seeing the corner of the pool difficult (darkened lighting and darkened water). The fact that they had available to them a cure for their actions in darkening things, and that the cure was at no real cost, with BOTH weigh in your favor.
That is all that need be said here on this topic, but in case some later premises liability reader should come along, maybe I will go into the topic of the evidence of expensive cures as being admissible in other premises liability cases. You can skip this if you wish, Ami, since the cost of cure in your case is nothing but placing a cooler on the corner. Admissibility is a balance between relevance and risk of prejudicing the jury. Remember, Ami, I am not here talking about your case, but instead I am giving an example for later readers who want to know how to use the cost of cure in premises liability claims. For this example only, we have chosen a cost of cure that is inappropriately expensive in relation to the risk of harm to passersby.
Sometimes, in cases unlike yours, the tortfeasor will avoid liability entirely by saying that it was waaaay to expensive to take corrective action in light of such a small risk of injury to a passerby. Since it is winter now, let's imagine that there was a slip and fall accident in one of those huge mall parking lots. The owner had the snow removed right after a snowfall, but of course some residual was left on the pavement.
The customer came the two days later and slipped and fell on that residual ice/snow material. He contends that the owner has the available means to hire the snow removal contractor and remove some of that ice/snow residual since there was some melt in the one day elapsed, and hence there was additional risk to customers walking the lot.
Pretend that you are on the jury, Ami, and you will hear the judge instruct you that "negligence" is a balance between risk and the cost of avoiding risk, and that you—the trier of fact (usually a jury in personal injury claims)— will get to make the determination of whether or not a "reasonable person" should be required to invest in such an expensive prophylactic cure.
The injured plaintiff would say that the owner had a cure available to him, if only he had hired removal each day. And the property owner would say that it would be waaaay to costly to hire removal for each day, and that in light of the small risk (shoppers know to look out on mall parking lots even after they have been scraped). The owner will have expert testimony that shows the occurrence of slip and fall incidents in mall parking lots two days after snow removal is just about nil. They will have a chart showing the occurrence of such falls at such a time after snow removal will be very small—maybe something on the order of one in ten thousand shoppers.
So, the landowner will argue, the risk of loss is very small, and the cost to cure by daily ice/snow removal when nothing had fallen the night before would be prohibitive and not necessary in light of the small risk. Hence, the evidence that the snow removal contractor was free to come out the day or two after he had already cleared the lot would be INADMISSIBLE: it is not relevant evidence.
#4. Ami: "I truly appreciate all the knowledge and info that you are providing. I do know what needs to be done, I just want to make sure I'm not jumping the gun."
ANSWER: Thanks for the kind remarks, but I am not sure which gun you might be jumping. Did you mean that you wanted more info before meeting with the adjuster, or did you mean you wanted more info before deciding to meet with an attorney?
Of course, I am lobbying you to think about hiring an attorney. Or at least speaking to one or two. That way, you will have a better idea of whether you will be comfortable to handle your own claim, or if you have found someone in whom you can place trust for a good representation. Remember, by merely agreeing to consult with an attorney does not mean you are marrying them! Plus it does NOT commit you to making a lawsuit or going through with a trial. Those are decisions you and your attorney will fully discuss in the future. For now, just take an interview or two and see if an attorney appeals you.
Is she someone you can work with? Will she allow you to have input on the case? Does she have a good legal assistant who can help when the attorney is in trial with other clients? She does not have to demonstrate experience on pool cases, per se. But she MUST have some premise liability case experience. Or she should have a mentor in the law firm with such experience.
ATTORNEY FEE TIPS
Here are three tips on contracting with an attorney. You must do these at the time you are interviewing, before you sign the contract with the attorney.
FIRST, try to avoid paying full attorney fees on money she recovers for your health care subrogation.
SECOND, try to get her to fight subrogation with a fixed maximum fee for her efforts.
THIRD, try to reduce the fees on an easy liability or easy damages case.
LOWER FEES ON SUBROGATION PAYMENTS
This does not come into play unless you have a health insurer or cooperative that is paying your medical bills, and which will file a subrogation claim against your settlement. Please see Introduction to Subrogation— http://www.settlementcentral.com/page0459.htm Forced Payback to YOUR OWN Insurer From Your Personal Injury Award.
You have a SERIOUS lower back injury, Ami. You have only moderate expenses to date, but there is the prospect of huge medical costs in the future. You did not mention who is paying your bills. If the tortfeasor's insurer is paying the medical bills, then you can skip this part about subrogation. Others who read this response are likely not so lucky and so will find this relevant. So I elect to present this in any event to the benefit of this Board as a whole.
Let's say that by the time your trial comes to an end, your health care insurer has paid out $15,000. They will file a claim for subrogation against your award. If you settle for $90,000, and you do not make arrangements to limit subrogation fees, the attorney will take her fees on your subro money. Let's say all your "costs" (court costs, deposition costs, doctor expert witness fees, etc.) total $6,000.
The usual payout would be $90,000 award, less 1/3rd attorney fees ($30,000), less subrogation owed (15,000), and less costs ($6,000), leaves $39,000 in your pocket.
Maybe, after reading my arguments here, and reading a bit about subrogation, you might get her to agree to a reduced fee on subrogated amounts by some healthy percentage, say a 15% reduction, UNLESS she agrees to fight some subro, as in the following suggestions.
MAKE HER AGREE TO FIGHT SUBRO CLAIMS AT A FIXED FEE.
Chances are SLIM she will agree to forego her entire fee on the subro amounts, but you can ask for two things.
First, make her DEMAND both (1) a reduction in subrogation (see some of the defenses alluded to on my subrogation page cited above); and (2) that the subro party share in the fees and costs in ratio of their amount to the entire award. That way, they would pay their share. You will not have to pay for 100% of their recovery.
Think of those $6,000 trial costs. If their claim is 16.7% of the recovery ($15K divided by $90K), then they would have to pay 16.7% of those costs AND in truth, your attorney should be able to get them to pay that percentage of your overall attorney fees.
Listen to what she wants to offer in this respect. She might be flexible and offer some interesting combinations.
In General: REDUCED FEES ON EASY LIABILITY OR EASY DAMAGES CASE
OK, Ami, this takes a bit of skill to pull off, but since attorneys want to think that they can be the ones to get you the most money, they will sometimes brag up the case in the first interview, kind of showing how much you would get if the case were to be placed in their hands.
Let them say how strong your case is for liability or how good your damages proof will be. You have objective proof of back injuries. That makes them easier to prove.
So you can turn that bragging against them and suggest that since liability or damages are easier to prove than normal, you should not have to pay the usual percentages. That percentage is a reflection of higher risk in both liability and damages than we have in this case. Hence, argue for a fee reduction. Do NOT be afraid to do this. If the attorney is annoyed, say goodbye and go to another one. You can slip the request in, but DO NOT ACT AFRAID to do so—you have a RIGHT to fair fees. If this case has easy proof of liability or damages, then remind them of their statements to that effect and ask for a reduction in fee percentage of 5% to 9%. I have given those kinds of discounts when the case is easy to prove and presents little risk of loss.
That is about is, Ami. 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
