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Posted On December 5, 2013 Personal Injury
One of the hardest parts of handling your personal injury case on your own is accurately calculating the value of your claim. For one thing, there are so many factors that contribute to case value, many of them subjective. Even if you take into consideration every possible detail, determining how these factors should influence value is not as simple as plugging numbers into an equation.
Then there’s the problem of perspective. Obviously, you’re very close to your claim on a personal level. You know exactly how much you have suffered as a result of the accident because you have to live with the consequences every day. Unfortunately, this can make you believe that your claim is worth more than any insurance adjuster is willing to pay, and more than the insurance company would expect a jury to award. It can be very hard to separate yourself from your case enough to determine how much your claim is really worth – to not take your personal injury claim, well, personally – and an insurance adjuster won’t be much help. The insurance company is more concerned with protecting its own profits than with helping you to understand what your claim is really worth. You’re on your own – so it’s essential that you understand as much about the factors that influence your claim as possible.
Years ago, calculating the value of your claim was simpler. Attorneys and insurance adjusters used formulas such as multiplying the amount of your medical bills by various numbers. Now the process has become more complex.
Insurance adjusters are more likely to weigh liability in their determinations. Was their policyholder clearly at fault? Would a jury condemn the negligence that led to the accident? If the person who caused your accident was driving while intoxicated, that added consideration of liability may work in your favor. If the at-fault driver committed an infraction that does not inspire so much public anger, like making a right turn at a red light without first making sure it is safe to do so, the value of your claim might not be quite as high using this guideline.
Another consideration that comes into play a lot in today’s personal injury claims is likeability. Insurance adjusters often pay attention to whether a jury would feel sympathy for you in a trial. Are you someone a juror would be likely to relate to? Did your accident occur in a way that could happen to anyone? Were the effects on your life the sort that could pull on a juror’s heartstrings? For example, maybe your injuries made you unable to provide for your family, specifically around the holidays. Maybe the accident cost you the physical abilities necessary to play with your children, do basic tasks around the house, or continue a beloved hobby.
While you personally have no control over the type of action that caused your accident, you can influence the likeability factor. How you present yourself certainly affects your likeability, and presenting yourself to the insurance adjuster in a way that makes you seem relatable can make them think twice about making you go to trial to get the claim you deserve. You’ll convey your likeability largely through your written demand letter, which we’ll talk about at a later time. However, keep in mind that presenting yourself as a reasonable and good-natured person throughout all of your interactions with the insurance adjuster will influence his or her opinion of you – and more importantly, of what a juror would think of you. Today’s juries can be cynical – but if a claimant is likeable enough, an insurance company would often rather settle than risk taking a case to trial.
While the at-fault party’s history of traffic-related criminal charges or legal cases may or may not impact your claim, your own history could. An insurance adjuster may look at your medical history prior to the accident. If you were in good health, this supports your claim that the accident led to your injuries. Even if you weren’t in perfect physical condition before the accident, it doesn’t mean that you don’t have a claim. You should be honest about this prior injury, but you can still recover compensation for prior injuries that have been exacerbated by an accident.
Insurance adjusters will surely scrutinize your medical history from the time your accident occurred to the present. If you claim to have ongoing debilitating injuries but don’t have the medical records to back up your claim, the insurance company is unlikely to take your argument seriously. Consistency of care is hugely important, so make sure that you inform your doctor of any complaints you have, and that your doctor records these problems in your files. Any lack of evidence will greatly decrease the value of your claim. The most recent prognosis your doctor gave you will also influence your settlement. If some aspect of your injury is permanent – even something like scarring or minimal effects on mobility – make sure your doctor knows that it is ongoing and a source of concern to you.
Most people outside the legal industry don’t fully understand what claimants are seeking compensation for when they pursue a personal injury claim. Obviously, now that you have been hurt in an accident, you know that a claim is no lottery, no easy windfall of money. The compensation you get from a personal injury settlement or trial verdict is meant to repay you for the damages you have suffered as a result of the accident. Attorneys separate these damages into two categories: economic and non-economic.
Economic damages are relatively easy to understand. These are all of the financial expenses that have resulted from your accident. Your medical bills fall into this category. So does unreimbursed property damage (typically not including damage to your car). If you have had to miss work because of your accident, the wages you have lost (or sick or vacation time you had to take to make up for those wages) are also considered economic damages, even though it involves the loss of money that you didn’t yet have. If you had other work-related losses, like loss of health insurance coverage or other earning capacity, you can include these losses, too.
In a car accident, treat property damage as a separate claim, rather than including it in the value of your personal injury claim. For totaled cars, you’ll go by the value in the Kelly Blue Book, but mention any upgrades you have made to the insurance adjuster. Photo Credit: Flickr (Creative Commons license).
The key to getting a fair settlement for all of your economic damages is to document everything. You’ll need your medical bills. To make a claim for lost wages, you’ll need a statement from both your doctor stating that you are unable to work and from your employer verifying the length of time you missed work and the salary you should have made. Economic damages may cover expenses you don’t think of right away, but only if you have the proper documentation. Say you had to pay for parking for every doctor’s appointment you had to make. A few dollars here and there can add up quickly when you need continuing medical care. Get receipts for every accident-related expense, and save them all. When it comes time to submit a demand package, you’ll need them.
In some ways, managing the economic damages is the easy part. Once you gather together all of your documentation, you can pull out a calculator and simply add up the costs to determine your economic losses. Sure, you have to watch out for a few pitfalls. For example, you can’t collect money for damages that another insurance policy has already paid. If your health insurance company paid for some of your medical bills, you may have to reimburse them for the medical bills they covered. This can be a difficult determination to make. You can ask your health insurance company if they would put a lien – an amount of money you owe – on any personal injury settlement you get. However, the paperwork they send to prove whether they would do so or not is often a long, complex legal document that may not make much sense to those without experience in the law.
Still, the complications of economic damages are very different from the difficulties of determining non-economic damages. Even in the field of personal injury law, we consider this area an art rather than an exact science. Though you’ve probably heard the phrase “pain and suffering,” you may not realize exactly what it means. Pain and suffering refers to the impact of the accident on your life. It includes compensation for some important but very subjective things: your aggravation, your humiliation, your inconvenience. Though even lawyers balk at making substantial claims for things like “emotional injuries,” pain and suffering as a whole includes this type of trauma. Though non-economic damages aren’t instantly quantifiable, you need to document them as precisely as possible, just as you would do with your economic damages. Keep track of the ways your injuries affect your life so that you can tell the insurance adjuster the full story.
In the world of PI law, we use a term that might surprise you: market value. If you’re wondering whether this is a personal injury claim or a lobster dinner, you’re actually on the right track. Just as with a sought-after high-end meal, the value of a personal injury claim fluctuates based on a simple question: What will the market bear? “Market value” describes how your claim fares in comparison to other cases on the market, or in the legal system. It encompasses the probable responses of an imaginary jury or judge, in the hypothetical situation that your case went to trial.
In addition to the factors we discussed earlier – liability, likeability, and history – a major influence on the value of your claim is jurisdiction. Market value varies from one location to the next, and that’s as true for a personal injury claim as it is for any product or service. You have little control over this factor – it’s the luck of the draw, based largely on how juries tend to respond in trials – but knowing as much as possible about your jurisdiction can help you make smart negotiation choices.
The market value of a claim in Philadelphia is likely to be higher than in other, more rural areas because of what juries would expect to happen in a courtroom. Photo Credit: Wikimedia Commons (public domain).
As a general rule, certain areas tend to have a more liberal pool of jurors, meaning they are more likely to award higher verdicts than others. If your jurisdiction is in a big city, the seat of the county, or an area with a larger population, the verdict in a potential trial would likely be higher than in a smaller, rural jurisdiction. This gives you more leverage in your settlement negotiations.
You may also have the advantage if your claim is against a commercial corporation rather than an individual. Insurance adjusters know something the average person doesn’t: in a trial, jurors don’t know that insurance companies will pay an amount of the settlement they award. This fact can’t be mentioned in a trial, so many jurors are more likely to keep verdicts smaller in a suit against an individual, but to reach larger verdicts against corporations. An insurance adjuster for a commercial entity knows that if the case went to trial, the verdict against the large corporation would likely be higher than the verdict in a similar trial against an individual. You can also do some research on your own about your specific jurisdiction to learn how juries in your area typically respond to personal injury claims.
A final factor in the value of your claim is coverage limits. The coverage limits determine the maximum amount of money you can receive in a settlement. No matter how good of a negotiator you are, you cannot get a settlement from this insurance company that is higher than the coverage limit.
The problem is that the insurance company is not required to disclose the coverage limits to you unless your claim enters the lawsuit phase, in which it becomes very difficult for you to handle the suit yourself. The good news is that there are ways for you to manipulate the system and trick the insurance company into letting you know what the coverage limits are. You can ask the insurance company what the policy limits are at the start of filing your claim, but they probably won’t give you that information. The best tip we can recommend for finding out the policy limits is to make a demand either for a higher settlement amount than you expect, for the full policy limit, or simply to know the policy limits. The insurance company may then tell you the policy limit. Otherwise, they may simply tell you that there is insufficient coverage for the amount you have demanded. Press them to tell you how much coverage there actually is. We’ll talk in more detail about writing a demand letter in the future.
There’s nothing simple about calculating the value of your claim, but by documenting all of your damages carefully, paying attention to the market value of your jurisdiction, and keeping in mind the many factors that influence your case, you can make sure you don’t settle for less money than you deserve.
You’re almost to the most important step in pursuing your personal injury claim. Check back soon for the next installment of How to Handle Your Own Personal Injury Claim to learn how to submit your demand letter.