Hold the Adjuster’s Feet to the Fire
The personal injury settlement process can be very frustrating for personal injury victims. Insurance companies, through their adjusters, make it so as a part of their business model.
Insurance companies are in the business of making money. Paying out fair settlements is not consistent with that mission. You have to hold their feet to the fire. Except in small claims, this requires the help of an experienced personal injury attorney.
Personal Injury Claims Arise from a Wide Variety of Accidents
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 their injuries. Wrongdoing can include negligence, recklessness, and even intentional actions that harm another person.
Most Personal Injury Cases Settle Before the Trial
Most personal injury cases, and all lawsuits for that matter, end in settlement rather than trial. Despite the prevalence of payments, the settlement process can sometimes be confusing and frustrating for an injured person. After all, for many injured persons, it is the first contact 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.
Step #1: Identify the Defendant
When an accident occurs, there are several preliminary matters to consider. The first is identifying the defendant (the person or entity responsible for the accident and consequent harm). This seems relatively straightforward, but it can get complex.
A defendant can be an individual, corporation, business, government entity, etc. There can also be multiple defendants in a personal injury lawsuit. And depending on the nature of the defendant, there can be different rules and deadlines.
Identify All Available Insurance
Identifying all possible defendants and all sources of recovery is essential at the beginning of a personal injury lawsuit. Typically, the head of the recovery will be the defendant’s insurance company if the defendant is insured, which 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 transferred 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 their investigation. Not infrequently, the insurance company’s opening position is that their insured was not responsible for the accident or injuries. Therefore the insurance company has no liability for the injured person’s damages. This is not unusual, so the injured person should not despair.
Begin Collecting Documentation on the Accident and the Injuries
The injured person’s attorneys will begin their 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. A settlement demand could be made immediately after the investigation is complete. However, that is typically not the case in cases involving serious personal injury.
The reason for this is that the injured person has not fully recovered. The injured party may never fully recover but reach maximum medical improvement (MMI). Only once the injured person has finished treatment, recovered, or reached MMI will the file be ready for a demand letter/demand package to the insurance company.
Prepare the Demand Package Incorporating All Supporting Documentation
And this is where the case begins to take shape. The demand package will set forth the case facts, 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 severe cases, the insurance company may initiate an investigation immediately to avoid or minimize liability.
No matter when or how the insurance company begins its investigation and response, the demand starts the settlement process. The settlement process can be long, complex, and highly contentious. Pre-litigation settlement negotiations can and often do go on for a couple of years. Usually, a lawsuit is filed only once the statute of limitations has been reached. Other times, the case will be filed immediately when it is clear that no pre-litigation settlement is possible.
Prepare for Trial Even Though Case Will Probably End in Settlement
Though settlement cannot be reached without litigation in many cases, most 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, a few issues cannot be settled and end in practice.