QuestionMy daughter was a passenger in a car accident in July 2007. She was sleeping in the back seat at the time of the accident and, due to the force of the impact (75mph to 0mph in an instant), she was burned by the seatbelt pretty badly. She was immobilized and transported via ambulance to the local hospital where she was evaluated and eventually released. I should mention that this was while she was traveling with her girlfriend's family and, therefore, all of this happened to her while she was away from her mother and me. She still has issues with traveling in an automobile and bears the scar from the seatbelt to this day, but those are small prices to pay given the alternatives. In truth, we are very, very fortunate that she's still with us.
All of this said, and our gratitude for her relatively minor injuries not withstanding, the time has come to deal with the insurance company. We covered all of her costs (transportation to the hospital, diagnostic and treatment) out-of-pocket and later submitted those costs to our own insurance company. We were reimbursed for 80% of the costs we paid. Since this is our first ever incident, we're not really sure what the mechanism is and what is used to value each of the diagnosed injuries. We also don't understand if their insurance is supposed to reimburse our insurance carrier (at the time) for the 80% they reimbursed us. So, my basic question is, what factors and what weight to those factors should be used in determining a fair settlement from the other insurance company? We are not looking for anything other than what we paid out (20% copays, phone calls to the hospital and insurance company to resolve our bills). I know there's likely an issue of pain and suffering, but that issue would put us in the deep end of the 'understanding' pool. The only real issue I have with their insurance company is why it took them well over a year to even contact us for settlement? Even so, and this might be naive, we don't view the insurance company as an ATM.
Any advice and or links to helpful resources would be greatly appreciated.
Thanks very much!
AnswerHi Joel,
Yes, I agree, it is a real relief to see our children survive what could have been a real disaster. Children auto accidents Doctor Settlement specializes for insurance settlements, so I have seen a lot of parents like you who are so relieved to have their sweet babies alive that they are not looking for too much via the insurance award.
But this is NOT YOUR CALL as to choosing not to "view the insurance company as an ATM." Or, "we are not looking for anything other than what we paid out."
Parents DO NOT have the right to compromise the personal injury claims of their children. If YOU are in an accident and YOU wish to make the adjuster the poster boy for the year for taking advantage of his insured's victim (i.e. you), then that is your choice to settle for next to nothing. But the injury claim of your child must be pursued to a FAIR AND REASONABLE result, even if you do not like the tort system.
The Court will decide what a fair and reasonable settlement is after reviewing the facts. And it will do so only after it hears from an attorney who will be appointed to represent the interests of your child in the settlement. What I am going to present below is the procedure for getting a minor settlement approved. And note that the child's award will be invested at the direction of the court in a blocked account that cannot be accessed until she is eighteen.
As you read below, remember that you need to get the insurance company to agree to pay ALL THE COSTS of the minor settlement procedure. Hence, none of the costs will come from her award. It is, after all, a procedure designed to benefit the defendant inasmuch as it will bind the minor from coming back later and trying to upset the settlement as being inadequate. Hence, insist that the tortfeasor's insurance company pay.
OK, Joel, let's look at this claim in a lot of detail. I am going to give you well over an hour of my time inasmuch as this is a really serious accident, and it sounds like your daughter has not had proper medical care for her emotional distress. Here are the six topics I am going to present for you to study up on.
#1. Learn about insurance settlements for children
#2. Serious injuries: Get Psychologist to help and DO NOT settle too soon.
#3. Learn about emotional distress claims
#4. Learn about valuation factors in personal injury claims
#5. Learn about how to handle your daughter's injury claim on your own.
#6. Learn about how to communicate with the insurance adjuster
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#1. Learn about insurance settlements for children
You cannot settle these claims for your child without a court review. That is because the personal injury claims of minor children are usually subject to review of a court and the settlement awards must be invested in a blocked account.
That does not mean that you must hire an attorney; parents are allowed to negotiate the settlement. BUT the court approval process will require an attorney. The key here is for the parent who negotiates the settlement to MAKE THE COURT APPROVAL PROCESS THE DUTY OF THE INSURANCE COMPANY.
In other words, just before you agree that the claims are settled, make sure that you have also demanded that the insurance company MUST, AT ITS SOLE EXPENSE, obtain court approval.
The expenses for attorney fees must be approved by the court, so even if you did hire an attorney to represent your children, there will be a court review process at the end to ensure that the fees the attorney proposes to charge your children are reasonable.
The claims of minors for personal injuries suffered are strictly controlled. Attorney fees are CONTROLLED BY THE COURT, not the attorney. Parents must invest the funds in the name of the child in a blocked account. Injury claims of minors http://www.settlementcentral.com/page8017.htm insurance settlement procedures.
You asked about money in two respects: repayment of your bills and the repayment for your insurance company. But first, while we are on the topic of the minor claim process, note, as I stated, that your daughter's award will be strictly controlled. Parents must invest the funds in the name of the child in a blocked account. Injury claims of minors http://www.settlementcentral.com/page8017.htm insurance settlement procedures.
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#2. Serious injuries: DO NOT settle too soon.
This was a HUGE TRAUMA, and I expect that your daughter sustained some pretty serious injuries. It has been just over one year, so one would think that all that is going to manifest as a result of the accident has already been seen by the doctors. But may I please just caution not to settle until you are pretty sure your daughter has reached maximum medical improvement. She may still need some treatments, and that is OK, but just make sure that there will be no surprises in the prognosis for future problems.
It will be the insurance adjuster who usually wants to settle early, so just be glad that he was not hounding you all along to get this thing done. That usually plays right into the strategy of the insurance company. Here is page from my website that shows in detail why you should never make an early personal injury insurance claims settlement http://www.settlementcentral.com/page0211.htm
I know that you think this is going on too far with this one topic, Joel, but I HAVE TO TELL YOU that this is a REAL danger that I have seen many times. So just have patience a bit longer and commit yourself to read the following to your daughter:
There may be a dull ache at night following a day at work or some physical activity or pain the next morning. DO NOT LET LITTLE PAINS GO UNATTENDED SINCE YOU DO NOT KNOW WHETHER THEY WILL CONTINUE OR GO AWAY. We all hope and believe that such little pains will disappear soon. But on the other hand, we have no way of knowing since this is the way serious fractures and soft tissue injuries can behave.
So, when this happens, even if a couple months or more post-treatment, do not hesitate to SEE A DOCTOR AND ATTRIBUTE THE PAIN TO THE ACCIDENT WITHOUT EQUIVOCATION. It is NEVER TOO LATE TO REPORT PERSONAL INJURIES FROM A FALL ACCIDENT http://www.settlementcentral.com/page0104.htm
"No medicine: no money"; medical costs increase worth of personal injury insurance claims http://www.settlementcentral.com/page0045.htm
NOW, what should the claim include: you will be repaid for your out of pocket expenses, and so will your insurance company. You and your wife also have transportation expenses at the current IRS rate of 58.5 cents per mile. Plus you get paid for all the time off work necessary to attend to medical care. But you will also make a claim for the general damages suffered by your daughter. This is not only pain and suffering, but also loss of enjoyment of life AND emotional distress.
I think that this issue has not been diagnosed or treated at all. Hence, may I suggest that you get some care for your girl on this issue? First off, your own insurance PIP or Med/Pay will pay ALL of her medical costs. I am mystified as to how they got away with offering you only 80% of the costs you paid. You bought the insurance: MAKE YOUR INSURANCE PAY 100% OF HER MEDICAL BILLS.
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#3. Learn about emotional distress claims
I am wondering two things regarding mental injuries: FIRST, it is entirely possible that your daughter hit her head. If so, how hard did your daughter hit her head? It sounds like a pretty hard whack at the speed you mentioned, and it would be natural for her to move so fast that her head could have struck something. If that happened, WRITE ME BACK IMMEDIATELY AND I WILL GIVE YOU INFORMATION ON A MILD BRAIN INJURY TREATMENT. IT IS NEVER TOO LATE TO RAISE THAT ISSUE, AND MILD BRAIN INJURY MUST BE TREATED NOW. So be sure to write me back if she did hit her head.
SECOND, you have describes a basic case of negligent infliction of emotional distress. This can be a compensable item IF THE INJURED PERSON IS TREATED FOR ACCIDENT-CAUSED EMOTIONAL DISTRESS BY A PROFESSIONAL. i.e. a medical doctor, or a psychologist. I suppose that if you cannot get in to see a psychologist, then use a counselor, BUT MAKE SURE HER RECORDS ARE SHARED with her medical doctor and thus become part of his records and hence, part of his treatment regimen.
We often see doctors treating "the nagging fear of getting hit again every time we drive somewhere." To start out in treatment, it could be difficult to convince the tortfeasor's adjuster to authorize treatment. It is better if you use your own health insurance or your automobile insurance.
SCHOOL PERFORMANCE AND EMOTIONAL DISTRESS. This is compensable, and in fact, it could become a major item of her claim. Often we see children manifest emotional distress not only in fear of driving, but also in changes school performance.
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#4. Learn about valuation factors in personal injury claims; INSURANCE INJURY CLAIM VALUATION TIPS
What about valuation of your daughter's 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.
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 of the scar that you mentioned. There may have been NO treatment costs per se. And it likely is not subject to revision by a plastic surgeon. YET SCARRING IN A YOUNG WOMAN BRINGS MONEY DISPORPORTIATE TO THE COST OF TREATMENT.
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. The fault of the driver of the car she was riding in cannot be used to reduce your daughter's award. She would then have a claim versus both drivers.
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. Your daughter had a HUGE crash, so this is a PLUS for your side.
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). Scarring shows the tremendous trauma of the impact.
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.
6. Prognosis- future care—permanency of injury or pain and suffering—does her doctor recommend 6 months of care, or was she done treating 4 months ago? Even if she is done treating, will the doctor predict future problems?
Her claim value gets a boost if her doctor specifies that she will need some future medical treatment, and right now you could check out plastic surgery as a possibility.
7. Her medical and claims history, prior accidents, prior injuries or treatment of the same area of the body.
8. Impairment of quality of life. Emotional distress fits in here.
9. Quality and persistence of pain suffered.
10. Quality and thoroughness of her medical records.
11. Lost wages.
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. This is also a good way to boost the value of the claim. And whatever you pay will be repaid to you from her settlement.
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#5. Learn about how to handle your daughter's injury claim: DO IT YOURSELF INSURANCE CLAIM SETTLEMENTS
OK, Joel, Let’s Look at self-help methods of resolving your daughter's claim. Learn how to settle her personal injury insurance claim AND DO IT YOURSELF.
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.
Just skim this one and don't spend much time on it: 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
Use a Confidential Personal Injury Diary for TOP DOLLAR Insurance Claim Settlements http://www.settlementcentral.com/page0208.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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#6. Learn about how to communicate with the insurance adjuster: FINAL TOPIC—COMMUNICATE IN WRITING AND "DEMAND" NOT "ASK"
FINAL TOPIC, Joel: 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
