QuestionI was the last car stopped in morning rush hour traffic and out of force of habit I looked in my rear view mirror to see what the vehicles behind me were doing. I could see the vehicle coming at a high rate of speed and although I tried to get out of its way by attempting to get into the fast lane median I prepared myself for the impact. I hit the concrete median wall and proceeded to flip side to side several times. I did not loss conciousness but only know this due to the witnesses who had pulled over to help and get me out of the car. The police report states the young lady who hit me said she was messing with her cellphone and her radio but at the end of the report she stated she was not on her phone yet the police officer found it flipped open which meant she was either talking or texting. She also stated she did not have time to slow down and hit me pretty much at full speed. I'm very thankful that I my injuries consisted of a contusion in my shoulder and a slipped disc in my neck which pinched a nerve and was very painful until it was finally diagonised what was causing me so much pain. I am at a point where I am ready to send a demand letter and as of right now without the service of an attorney. My medical bills were approximately $23,000, I am a single mother who just recently moved to a new area, I have a son with special needs and needed the summer (accident happened 6-21-07) to get involved with different support groups. My daughter was unable to join a new gym for tumbling. I have done alot of research to make my demand letter as good as I can but I was wondering if I am doing the right thing with trying to handle this on my own. Although my injuries weren't visible the personal diary I kept during recovery shows alot of pain and strain in my relationship with my children. I have documented everything and want to be treated fairly. How do I know if I'm asking too much or too little? ANy advice would be greatly appreciated.
AnswerHi Beth,
You are asking two questions: 1) can you handle this claim yourself; and 2) how much should you ask for. I am going to take two hours to put a long answer together for you because it sounds like you might have A VERY SIGNIFICANT INSURANCE INJURY CLAIM.
I am afraid that my answer will not be definitive for you inasmuch as there is just too little information to go on, plus we are not allowed to guess at claim values since that could be construed to be the practice of law, and such a guess would expose us and the website to a potential malpractice claim if we were way off. But I CAN provide you with some good free information and some pointers on how to proceed with your claim.
There are some inconsistencies that need to be addressed. In the first place, I got the idea from your narrative that your injuries were VERY serious, as evidenced by the big medical costs. But to the contrary, near the end, you seem to dismiss your injuries as nothing too significant. I am going to assume the former position, to-wit: all that you describe in terms of a cervical disc are caused by the accident. I am also going to assume that your medical expenses were reasonable and necessary to treat the injuries you sustained in the accident.
Given that, let’s start with the first thing in the demand letter (after you set forth the amount of your demand).
You need to tell the adjuster that you will settle for their policy limits, if offered. See insurance policy limits http://www.settlementcentral.com/page0451.htm
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POLICY LIMITS AND SUBROGATION CONSIDERATIONS
You have the right in discovery in litigation to know the policy limits, but most companies will not honor a simple letter request to disclose the limits outside of litigation, UNLESS THE CLAIM CLEARLY EXCEEDS THEIR LIMITS.
In your case, one would think that anyone with policy limits of $50,000 or less should disclose her limits and offer them up in exchange for a release. A cervical disc, caused by this accident, is a life-long problem, even if no surgery is recommended at this time. You will need clear medical records that identify the etiology as directly caused by the trauma, and the prognosis to be guarded, with a high probability of future medical care, including possibly surgery.
With that kind of medical record, one would be able to add in the cost of future surgery (or other appropriate treatment) and hence increase the value of the claim. If you have such a prognosis, then the value could exceed $100K, all totaled.
But for the moment, let’s assume that the third party adjuster sees that her limits of $25K or even $50K are clearly insufficient, and she offers those limits in exchange for a release.
You will have to give your PIP or MedPay carrier, your health insurer, and your Underinsured Motorist (UIM) carrier notice of your intent to accept a policy limits offer, and that they have certain rights to investigate the financial strength of the tortfeasor to determine whether or not they want to “buy out” the tortfeasor’s offer (by paying it to you directly) and pursue the tortfeasor’s assets.
If you have no UIM and the policy limits are $50,000 or less, you best seek advice from an attorney as to how to proceed (i.e. accept the limits versus sue the tortfeasor) AND how to defend against your insurers’ subrogation clams.
That is another topic to learn about since any claim that involves a policy limits settlement MUST ALSO involve you in a fight to defeat your OWN COMPANIES (auto and health) that seek to be reimbursed for the payments they made on your behalf. See defending insurance subrogation http://www.settlementcentral.com/page0459.htm claims in personal injury settlements.
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CAN YOU SETTLE THIS YOURSELF? FREE PERSONAL INJURY CLAIM TUTORIALS
Another topic you asked about is whether or not you could do this settlement yourself, without involving an attorney. The answer there is a qualified YES. You seem to be a good worker because you have done your homework, including finding this site. One other thing you might think of is to become familiar with the basics of do it yourself personal injury insurance settlements http://www.settlementcentral.com/page0014.htm
Learn about the personal injury insurance claim system before you go too much further.
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
Use a Confidential Personal Injury Diary for TOP DOLLAR Insurance Claim Settlements http://www.settlementcentral.com/page0208.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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SIGNIFICANT ELEMENTS OF DAMAGES
One HUGE problem I see for converting this into a major claim is that you do not cite any real elements of damages—no real pain and suffering problems or inability to do work or physical activities.
Instead, there is some mention of how this interfered with raising or tending your children. While that means a lot to YOU, it means darn little to the adjuster. Remember, the adjuster is NOT INTERESTED in making you a fair settlement. All she wants is to get rid of your claim for as little payout as possible. Are you feeling those “good hands” yet from your “like a good neighbor” treatment? Notwithstanding what President Bush and like-minded politicians say, there is NO NEED FOR TORT REFORM to help the struggling insurance industry: indeed, they made almost $60 BILLION in 2006—record profits by a huge margin. And just remember that they did not get that way by doing your research for you and making a fair settlement. YOU will do the work to present your claim in a competent and convincing manner, and YOU will hold firm to get a fair settlement.
How are you going to do that? One way is to continue to build on the topic of the pains that you mentioned.
Next is to use a witness or two. Home, work, friends, etc. Any source will do. Witness Statements Settle Personal Injury Insurance Claims http://www.settlementcentral.com/page0196.htm
INTRODUCTION TO ELEMENTS OF YOUR DAMAGES
We consider the damages in three categories: special damages, general damages, and future damages (which will be both special and general).
Special damages are things that are capable of ascertainment by calculation or documentation. These include such topics as medical and chiropractic expenses, appliances (crutch, or cervical collar, or dental appliance for a jaw joint claim), physical therapy, lost wages, transportation to and from medical appointments, hired chore and personal help, and the like.
General damages are for pain and suffering, loss of enjoyment of life, severe emotional distress, and the like.
Usually general damages are the “wild card” in the settlement, and that is where the negotiation centers. Assuming that they agree to the special damages, what is left is to argue about the value of the claim for the suffering that you have and will endure.
FUTURE DAMAGES—surgery in five years?
Your accident sounds like a pretty good hard crash (based upon your description of the speed involved), and thus you might have a settlement attempted by the adjuster fairly soon, but at the same time, you need to consider the long term prognosis from your doctor. Future damages (which will be both special and general) will be paid ONLY UPON A FIRM COMMITMENT by the doctor. Your doctor cannot just state that you will need some additional care in the future, or that a surgery is “POSSIBLE”. NO, he has to make it an unambiguous statement of need: a firm prediction that you will encounter problems in the future “on a more likely than not basis” (that latter being the standard of proof). This should be a SPECIAL paragraph or two in his prognosis.
You doctor does not need to give a firm statement of costs if he is not comfortable in doing so. But maybe he can tell what a course of treatment would be. For example, it is easy to know future costs if there is an additional course of physical therapy treatment estimate; and one could estimate the costs of various surgeries; and one can make an estimated requirement for additional chiropractic care.
Thus, in future damages, you will include both the estimated cost of a course of treatment AND the pain and suffering and loss of enjoyment of life that will be experienced by the predicted condition cited in your doctor’s prognosis.
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Narrative Reports—THE SECRET INGREDIENT FOR SUCCESS!
Have you seen any of the doctors' records that will go 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.
Make darn sure your doctor does have updated full information in her records, or the adjuster may not give you credit for what you have been through. For example, if you just ask for a narrative letter now, you best go in for another appointment first and document for the doctor all of those nagging signs of injuries you are noticing following a full day of sitting at your computer or doing physical activities. Personal Injury Medical Records http://www.settlementcentral.com/page0114.htm
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INSURANCE INJURY CLAIM VALUATION TIPS
What about valuation of your 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.
So, I have a short answer and I promise to give you the full longer more detailed answer if you ask me later, when you are ready to settle.
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.
This is the so-called “secret BASE formula" of Dan Baldyga. He has a website from which he sells his book, and he writes articles touting his "secret" B.A.S.E. "formula" for settling claims. Maybe he has some other ideas of merit in his book, but this BASE thing is NOT among them. Once it became apparent to everyone on the Internet that this was NO REAL “SECRET”, inasmuch as anyone in the business knew that years ago it was somewhat relevant, Dan stopped using that “SECRET” adjective as a sales tactic and actually put it out in articles he has written.
Here is a link to his website, where you can try out the so-called formula and buy his book if you wish: http://www.autoaccidentclaims.com/index.asp
Let's take a look just two factors that put the lie to the general use of this BASE. An obvious one is that if a person with your injuries is left to rely upon the records of a chiropractor to support her claim, it will never have the same value as if one’s records were from an orthopedic surgeon. Oh, yes, I am aware that chiropractic is better for most soft tissue injuries than taking drugs prescribed by a surgeon, but the insurance industry does not know that.
Insurance companies give great weight to opinions of orthopedic surgeons
http://www.settlementcentral.com/page0052.htm
But severe whiplash injury best treated by chiropractic (if NO disc injury)
http://www.settlementcentral.com/page8010.htm
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.
Just for the heck of it, here is another factor that shows the Baldyga BASE formula is BOGUS and a scam. What about the proof of the injury? It can make a HUGE DIFFERENCE whether or not the injury can be proven by objective evidence (nerve conduction study, x-rays, etc.), or whether the only proof is subjective (one’s statements that you feel pain).
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 & comparative negligence
This is a big one because it most dramatically affects value: minus if you have any fault. You are OK on this one.
2. Trauma suffered
The value of your claim increases with a bigger crash, and decreases with a low damage fender bender. Why? Just human nature.
Therefore, the total value of the property damage (e.g. cost to repair or replace a motor vehicle) becomes significant.
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). Again, assuming that your medical expenses were reasonable and necessary, you are good on this one.
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). Assuming you have objective evidence of your cervical disc, this is also a strong one for you.
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 your doctor recommend 6 months of care, or were you done treating 4 months ago?
Your claim value gets a boost if your doctor specifies that you will need some future medical care.
7. Your medical and claims history, prior accidents, prior injuries or treatment of the same area of the body.
8. Impairment of quality of life.
9. Quality and persistence of pain suffered.
10. Quality and thoroughness of your medical records.
11. Lost wages.
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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.
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
