QuestionHi Bennie,
I will try to be concise and offer the relevant details. (Not an easy marriage!)
I suffered an air bag injury in an auto accident in March 2006. Four of my bottom teeth were significantly displaced. I saw several dental specialists but could not begin treatment until a year after the accident, because the teeth were too loose. Also, I was pregnant, and X-rays could not be taken.
I am now in dental braces (for the second time in my life). Also as a direct result of the injury, I had two root canals and gum surgery. Additionally, I was also referred to an oral surgeon because I may require jaw surgery before the braces are removed. Prior to all of this, the extent of my dental work was a few fillings.
My treatment is not expected to be completed until the fall of 2009, and that's if everything goes like clockwork. To put it into perspective, I was three months' pregnant at the time of the accident, and my daughter will be three years old by the time my treatment is completed.
I won't cry on your shoulder and tell you the details of how difficult this has been, but I am the mother of five children (including the baby). Having to take all of them with me to appointments is just one of the unusual challenges that I've faced that is probably not common for most accident victims.
The adjuster has been very sweet and has merely called on a monthly basis for updates since we were in a holding pattern for so long.
I think that she is waiting until my bottom braces are on before offering to settle. Since the statute of limitations is up in five months, I think I'd better go ahead and submit my demand letter in case the insurance company does not agree to a fair amount, I will have sufficient time to hire an attorney.
My intent is to send a demand letter to the at-fault company, offering to settle for policy limits if my demand exceeds them. I will send a copy to my own company in an effort to preserve my underinsured motorists coverage.
Here are my questions:
1. Does this sound like a wise plan?
2. Also, should my demand exceed the at-fault party's policy limits, will I have to sue the tortfeasor before attempting to collect my own UIM?
3. Does the at-fault party have to agree to a policy-limits settlement in order for me to collect anything under my UIM?
Thanks so much!
Answer************************FOLLOW UP*************************
Hi Allie,
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Bennie 10-27-07
Hi Allie,
At least you are luck to live in one of the 7 states that have a 3 year statue of limitations.
Unfortunately, I feel that you have pushed the time envelope to short to accomplish all the things you need to do to be able to accomplish them in 5 months. I am going to make some suggestions and explain the reason later in this answer.
You must settle this loss with the adverse party and with your own insurance companies Under Insured Motorist coverage BEFORE the statue of limitations expire. There are absolutely NO grounds for you to miss this date. If you blow the statue date, you lose all rights to any recovery.
First, find out through whatever source necessary how long the statue of limitations will be extended of you file a lawsuit. It should be at least one year.
Second, hire the very best Paralegal in your area to prepare a lawsuit for you. Do some research so you are sure that you hire the most qualified, experienced person available. This document must be all inclusive and letter perfect. You can expect to pay $750 - $1,500 for this service. You should have about a dozen copies (photocopies are OK) before signing. Most states require your original signature on each copy, so don't sign until after you have made the copies. The Paralegal should be able to better advise of the number need.
Third, file these documents at the local courthouse. Most states require three copies. Again, ask the Paralegal's advise. The court charges a filing fee, again this varies from state to state, so ask the Paralegal or call the proper department at the courthouse.
No one is going to dispute the fact that you have suffered injuries but you have to demand a settlement amount and prove why you are entitled to this amount. Once you actually make your demand, it is usually followed by months of negotiations before an agreement is reached.
From everything I read in your question, it appears that you don't yet know the policy limits of the adverse party.
These limits should have been made available to you two years ago.
You can ask the Adjustor, he may or may not tell you.
You can send a written demand to the company for them to reveal the limits, but they may ignore you. It is entirely conceivable that you will have to hire an Attorney (for about $350) to sent a demand for release of the limits.
Lets assume for a moment that the adverse party has a maximum limit per person of $100,000. If you have 300/500 Underinsured motorist coverage, then there is an additional $200,000 available. If you only have 100/300 then there is nothing available. It's normal that you are only entitle to the difference between the adverse party's lower limits and your higher limits.
You can only file an Underinsured Motorist if your demand is greater than the adverse party's limits and you received a settlement of their full limits.
Now we come to the proof issue. You need to build three identical files, one for yourself, one to present to the adverse company and one to present to your own company if and when you file an underinsured motorist claim
Again state laws vary widely, so you must learn exactly how the policy applies in your state.
Once again, if the adverse offers to settle for their policy limits, it's normal that you must get written permission from your own company and their agreement to allow you to open an Underinsured Motorist claim against them before accepting the offer.
All these laws vary from state to state, so learn exactly what applies in your state.
Now we come to the proof. You need to build three identical files, one for yourself, one to present with your demand letter and one for later if you wind up presenting an Underinsured motorist claim. You need copies of every single Medical, Dental, Oral Surgeon and Orthodontic bill for the expenses you have incurred right up to the day your demand letter is typed. You need to have each one prepare a narrative report of what they have done and why plus explain your future Medical/Dental/Oral Surgery needs and their estimated costs. You need to include all other expenses such as ER, Prescription drugs etc. You need to compile a log book of each and ever single visit you made to see one of your attending doctors, showing the date, who you visited the round trip mileage at $0.43 per mile.
If you were employed, you need documentation form your employer of your lost wages.
The narrative reports are extremely important to your case because they not only show what you have been through but include your future medical/dental costs. Each specialist will charge $350-$750 for these narratives.
Once you have the files completed, total your past expenses
(including any items that I may have missed suggesting)
and then add in the anticipated future expenses which have been included in the specialists narratives. Now multiply this total by 3.2. The resulting total is the amount that you should demand as a settlement for your pain and suffering.
Now, go back to the Paralegal and have him/her prepare your demand letter. Be sure to include a demand for response time, usually 10-15 days. The adverse company needs time to study your demand and all the information that you have presented them. The first offer from the adverse company is going to be very low, probably 2 - 2.2 times your losses
(unless their client's policy are that low of an amount or less). If course you are going to know that right away because, as I stated earlier, you are going to do whatever is necessary to force them to reveal those limits immediately.
If their client's policy is equal to or exceed your demand, then there is going to be months of negotiations between you and the adjustor and you can best hope to settle for between 2.6 and 2.8 times your losses.
Of course what you have paid for the narratives is a non refundable expense.
If you had hired an Attorney, his contract generally stipulates that he is allowed to deduct the expenses off the top and then retain 33% of the balance if he can settle the case out of court. He would have secured these same narratives but the Doctors would have charged him more than they are going to charge you. He would not have just sent a written request to those Doctors but paid a special visit to each one to get their statements and opinions and charged you $350 per hour for his 'expenses'.
Up to this point, you can really handle the case yourself and secure a fair settlement.
If your settlement offer is for their policy limits and your demand was greater, then you probably have to get permission from your own company to settle and open a UIM claim. By this time you will already learn what your company requires.
After getting the approval from your own company, you can then settle with the adverse carrier. They will require you to sign a 'release of all claims' for any future action against them and the at fault party. (or using the word from the latter part of your question 'tortfeasor')
I can tell that you have been reading Doctor Settlement.
I have been licensed in California for 46+ years, in and out of Attorneys offices and courtrooms and have never heard that word spoken aloud.
Now comes handling the UIM claim. First of all, your company will want copies of many things (they will tell you what when you are securing their approval to settle and open a UIM claim, among the things they request is a copy of your lawsuit and a copy of your 'specials', this is on of the three identical files I stated you need to create).
The standard wording in an Insurance Policy is that any claim you file against them be handled through arbitration.
You can learn your state rules by simply reading your own policy.
This you can not handle yourself. I know, been there done that and put the check in the bank.
I handled my own case, even wrote the suit and filed it with the courts, settled with the adverse company for policy limits, opened a UIM claim and then hired an Attorney.
The Insurance company picks an attorney, you hire an attorney and the tow of them agree on a 3rd attorney to be the arbitrator. By a prearranged agreement in your policy language, the decision of the arbitrator is final and binding on all parties.
Your own attorney will want a copy of your lawsuit and the 3rd copy of your 'specials'.
After reviewing your 'specials' and the specialists narratives, they have the right to demand an Independent Medical Examination. His sole job is to review all your 'specials' and Specialists narratives and try to dispute your specialists treatment, observations and future needs and costs. He will testify against you at arbitration you will be setting right beside your attorney for the entire proceedings which will last 1 1/2 to 3 days.
When choosing an attorney, try to get the very best one in the area. You may visit and consult with several different ones before find just the right one. It is normal and standard that this first consultation is free. after arbitration is over, the arbitrator will usually provide a written statement of his decision within three weeks.
I can't believe that I have spent 3 hours on this. I had to read your question several times to be sure I understood everything, roll it around in my head and then answer it in the proper oredr so everything made sense. I hope I have successfully done that and didn't miss anything.
I trust that this will be of help, please write again if I can provide more assistance.
Your feedback to my answer will be greatly appreciated.
Sincerely,
Bennie
San Francisco Bay Area 10-25-07 9:42 AM PST
