Personal injury claims may arise from car accidents, injuries from defective products, medical malpractice, construction accidents, slip and fall injuries, nursing home abuse, and many other situations.
Though personal injury claims vary in nature, the main feature of a personal injury claim is that one person wrongfully injures another and the injured person seeks compensation for his or her injuries. Wrongdoing can include negligence, recklessness, and even intentional actions that harm another person.
The great majority of personal injury cases, and all lawsuits for that matter, end in settlement rather than trial. Despite the prevalence of settlements, the settlement process can at times be confusing and frustrating for an injured person. After all, for many injured persons, it is the first contact of any kind that they have had with a legal claim, the courts or lawsuits. What follows is a brief description of what to expect when settling a personal injury case.
When an accident occurs, there are several preliminary matters to consider. The defendant in a personal injury lawsuit is the party responsible for the harm to the plaintiff, the injured party. A defendant can be an individual, corporation, business, government entity, etc. There can also be multiple defendants in a personal injury lawsuit. Identifying all possible defendants and all sources of recovery is important in the beginning of a personal injury lawsuit. Typically, the source of recovery will be the defendant‘s insurance company if the defendant is insured, which unfortunately is not always the case.
Once the defendants are identified, the first thing that usually occurs is that the insurance company (if there is one) is notified. The insurance company begins a claim file and assigns the claim file a number. An adjuster is then assigned to the case. Upon notification of the claim, the adjuster will open a file.
In cases involving significant injuries or wrongful death, the adjuster may immediately begin his or her own investigation. Not infrequently, the insurance company’s opening position is that their insured was not responsible for the accident or injuries and therefore the insurance company has no liability for the injured person‘s damages. This is not unusual so the injured person should not despair.
The injured person’s attorneys will begin their own investigation. This will include informal discovery involving the collection of police reports, incident/accident reports, medical records, medical histories, information on the insured and so on. Ideally, after the investigation is complete, a demand for settlement could be made immediately. However, in cases involving serious personal injury, that is typically not the case.
The reason for this is that the injured person has not fully recovered. In fact, the injured party may never fully recover but instead simply reach maximum medical improvement (MMI). Only once the injured person has finished treating, fully recovered or reached MMI will the file be ready for a demand letter/demand package to the insurance company.
And this is where the case really begins to take shape. In a nutshell, the demand package will set forth the facts of the case, the basis for liability, and all the recoverable damages. A good demand letter will include all supporting documentation to support the claim. The insurance company’s investigation will often not begin until the demand is received. However, as stated, in very serious cases, the insurance company may begin an investigation immediately with the hope of avoiding or minimizing liability.
No matter when or how the insurance company begins its investigation and response, the demand begins the settlement process. The settlement process can be long, difficult and highly contentious. Pre-litigation settlement negotiations can and often do go on for a couple of years. Often a lawsuit is filed only once the statute of limitations has been reached. Other times, the lawsuit will be filed right away when it is clear that no pre-litigation settlement is possible.
Though settlement cannot be reached without litigation in many cases, the great majority of cases end in settlement. This is true even for those that require litigation. On the other hand, an experienced personal injury attorney will prepare the case all along in expectation of trial. After all, there are those cases though few in number that cannot be settled and end in trial.