September 20th, 2018|
If you’ve made it to this page, its probably because you, a family member or friend sustained injuries resulting from the negligence of a company or individual. According to the National Safety Council, motor vehicle crashes in the United States during 2017 resulted in 40,100 deaths and 4,500,000 seriously injured people. Those numbers are mindboggling—110 people die each day in a motor vehicle collision and more than 12,328 are injured daily. For teenagers, car crashes are the number one cause of death. Tragically, you have a 1 in 102 odds of dying in a car crash during your lifetime. Being struck as a pedestrian is 1 in 561 and for those riding motorcycles, the odds are 1 in 846. Slip and fall statistics are also alarming. You have a 1 in 119 odds of dying as a result of a fall. The above numbers are ridiculously high, and you can see the real life and close-to-home tragic consequences of such events.
Negligence is frequently the result of somebody’s violation of the safety rules which are designed to protect us and keep us safe. Some sort of distraction, lack of proper attention, inadequate training, not following protocols, taking short cuts and otherwise not doing what a reasonable person would do creates the negligent conduct. When that safety violation occurs, the negligent party has an obligation to make things right. The question is—what is right?
How much money is right? What factors are considered in valuing an injury claim?
Although some might think it unseemly to value injury claims in dollars, that is the only method our system of justice allows. The United States’ system of justice derived from the common law system developed in England. Although many changes and modifications were made following our Declaration of Independence in 1776, we still hold to the judicial system that requires a negligent wrongdoer to fully compensate an injured party for his or her losses. Failure to do so is a failure to do justice. We are very fortunate to have the system we do because a justice system used in other parts of the world dates back to around 1754 B.C. Known for Babylonia King Hammurabi, its called the Code of Hammurabi. You are likely familiar with this justice system based upon retribution, an eye for an eye and tooth for a tooth.
So, returning to your inquiry, what is a case worth? Numerous factors dramatically affect the value of an injury claim. Many will be discussed below, but some common factors include the defendant’s conduct, the injuries sustained, medical care, lost wages, permanent injury and where the injury occurred. Although you may have heard from a friend or family member about a formula for determining case value, that system or process really has not existed for decades. Insurance companies today use computers to determine case value. Experienced injury attorneys are aware of this and have the tools and resources to fight for fair compensation.
Are there any liability issues?
The first step in assessing proper case value is resolving any and all liability issues. Liability simply means who is at fault. Is the at fault party completely at fault, or only partially at fault? Is fault disputed? Depending on the state where the negligence occurred, fault is crucial. The District of Columbia, Maryland and Virginia are three of the five jurisdictions in the United States that follow the concept of contributory negligence. In most states, comparative negligence is the standard. Why is that important to case value? In contributory negligence states, if the injured person is even 1% at fault then he or she is not entitled to any money—nothing! A harsh result, but that’s the legal standard in contributory negligence jurisdictions. In most of the US, the standard is one of comparative negligence. In such states, a comparison is made between the negligence of the parties and the injured person’s money award is reduced by his/her comparative negligence. So in a contributory negligence jurisdiction, if the injured party is found 1% at fault for a car crash, there would be no recovery. However, if with same set of facts the car crash occurred in a comparative jurisdiction (Pennsylvania) and the jury awarded $100,000.00 to the injured person, the award would be reduced by the injured person’s negligence (1% = $1,000.00), so the award would total $99,000.00.
How does an insurance company evaluate the value of your case?
In the past, an insurance company adjuster would use his/her common sense, education, training and experience to determine case value. However, in the mid 1990s, the claims departments of most large insurance companies underwent a radical transformation based upon suggestions by McKinsey Consulting. The suggestions were designed to reduce the amounts insurance companies were paying to injury victims, thereby dramatically increasing profits. So currently, most insurance companies use computer software based upon potentially hundreds to thousands of different data points to determine case value. One such program is called Colossus, which was originally created by Computer Science Corporation and leased to hundreds of insurance companies. The human element in reviewing claims has been significantly reduced, and at times, all but eliminated. The insurance industry cost savings have been huge while payments to injury victims have been dramatically decreased.
So, if an insurance company is going to use computer software to reduce the value of a case, what can be done about it? First, it’s important to retain a law firm experienced in handling claims with insurance companies using the computer software. Accurate documentation of injuries, type of medical care, body parts, loss of enjoyment, medical procedure codes, supporting records, medical billing codes, permanent injuries, etc. are important when preparing settlement demands that will be assessed by the computer.
Second, it’s critical to retain a lawyer and a law firm with a well-earned reputation for going to court. Insurance companies track and record which law firms fight for their clients by filing suit and which lawyers are more likely to just take the money and run. If your lawyer has a reputation for settling, you will get less of an offer than another lawyer with a reputation for fighting for his/her client. Normally, settlement value increases after suit is filed and may continue to increase as you get closer to the actual trial date.
Third, be prepared for a fight and you must remain patient. If the insurance company makes you an unfairly low offer and suit is filed on your behalf, the insurance company may hold on to its money until very close to trial. Insurance companies understand that they have the money and it doesn’t make much difference whether they pay today or one year from now. It’s not going to have much, if any, impact on the large insurance company. Insurance companies make money over time on their money through investments, so the delay is normally nothing but beneficial for insurance companies. You, on the other hand, have lost time from work, received less than you thought for the value of your vehicle, incurred medical bills that threaten to turn you over to credit agencies, spent through your savings and now feel the need to settle your claim. The insurance company now has you at a disadvantage. Again, an experienced injury lawyer will assist you through this difficult process and help you see the light at the end of the tunnel.
Some of the factors to consider in assessing case value include:
- The defendant’s behavior – The more outrageous the negligent behavior, the better the case value.
- The defendant – Will the defendant make a good or bad witness?
- The amount of insurance coverage
- The type of negligence claim – Minor rear-end crash versus tractor trailer setting off chain reaction collision.
- What county suit could be filed in – Certain jurisdictions are more favorable and insurance companies are aware.
- The injuries sustained and their extent and duration – Muscle strains versus herniated discs, brain injuries, fractures
- How the injuries effect your overall physical and mental well being
- The physical pain and mental suffering in the past and expected in the future
- Scarring – Scar to the face worth more than scar on back
- Medical expenses in the past and expected in the future
- Loss of earning in the past and expected in the future
- Past and future pain, permanent impairment, loss of mobility, companionship, enjoyment of the things you enjoy
No two cases are the same, and even similar facts and injuries frequently lead to widely different outcomes. What may be relatively minor for one person may be devastating for another—how can a computer make that determination? The problem is, insurance companies rely upon them to perform that function thousands of times per day. There is no humanity in using a computer to determine the seriousness of an injury and how it impacts and changes a person’s life. For that, you need an experienced lawyer on your side, one the insurance company knows will file suit if a fair offer is not made. Even so, because of the use of Colossus or similar programs, the insurance adjuster doesn’t have the flexibility to go above the computer value, so the decision must be made—settle or sue?
Ultimately, your case is worth this— what you’re willing to accept in settlement and if not, then what you are awarded at trial. A skilled trial attorney should be able to give you a pretty good idea of the value range of your claim based upon their experience.
A lawyer should also explain the settle or sue options so that a decision in the client’s best interests can be made. If the case ultimately proceeds to trial, then the value will be determined by a jury using many of the twelve criteria listed above.
May 7th, 2018|
One day you are at work driving for the local delivery company delivering packages. It’s rush hour, so traffic is heavy. You are at a red light waiting for the light to change, and out of nowhere, another truck slams into the back of your vehicle. Your neck jerks back and forth from the impact. You are experiencing pain in your back. Your right leg hurts from slamming on the brakes to avoid hitting another vehicle. What do you do? Who do you sue? Who’s going to cover your medical bills? What if you cannot return to work?
Well, if you are injured while on the job and it is the fault of someone else who is NOT your employer or coworker, here’s what you can—and cannot—do.
Can I sue my employer?
No, you cannot sue your employer. But, because your injury occurred during the course of your employment, you can file a workers’ compensation claim so that you can get the cost of your medical treatment covered and receive monetary benefits while you are unable to work. Workers’ compensation is a no-fault system, and as long as you can show that you were injured on the job, you can make a claim. Immediately, you need to report your injury to your employer. If possible, I would report it in writing and keep a copy for your personal records. Your employer should have you complete a claim form, and they should file your claim as soon as possible. This will begin the process for your workers’ compensation claim.
But what about that person or entity who caused my injuries? Can I sue them?
This particular scenario creates a unique situation where you could collect workers’ compensation benefits AND pursue a third-party claim for damages against the person or entity that is at fault (often referred to as a third party). If a third party is responsible for your injuries, i.e. they were negligent, you have a right to bring a third-party claim against them. This unique scenario is what we at ChasenBoscolo call a “companion case.” We call it a companion case because you have two different claims that arise from a single event. Although there are two different claims, let me explain how they go hand-in-hand and how we can help.
How Workers’ Compensation Works
Because workers’ compensation is a no-fault system, you do not have to prove negligence to get workers’ compensation benefits. You basically just have to prove that you were injured in the course of your employment. The first benefit that is allotted to you is medical treatment. Workers’ Compensation will cover all medical treatment that is causally related to your work-related injury that is reasonable and necessary. Second, if you miss time from work due to your work-related injury, you may be eligible for partial wage loss reimbursement. There are four types of wage loss reimbursement benefits:
- You can receive Temporary Total Disability (TTD) benefits if you are unable to work at all as you recover from your injury over the short-term.
- You can receive Temporary Partial Disability (TPD) benefits if you are unable to return to your pre-injury employment but have found a new job that would accommodate your injury. You may receive a wage loss benefit that is equal to 2/3 the difference between what you earn at your current job that accommodates your injury versus what you earned at your old job.
- You can receive Permanent Total Disability (PTD) benefits if your injuries are so severe that they are deemed permanent after you have reached maximum medical improvement. This benefit will warrant you a lifetime wage replacement benefit.
- You can receive Permanent Partial Disability (PPD) benefits if your injuries are permanent but do not completely limit your ability to work.
Last, there’s a fifth benefit, which is vocational training. You can be retrained to work in a new field if your injury prevents you from being able to return to work in your pre-injury field. This benefit can get you back to earning a meaningful wage.
How does the third-party claim (aka a negligence claim) work?
First, we have to be able to prove negligence. This requires having evidence to show four legally required elements at court.
The first element that you have to prove is that the other person had a duty to you or to the general public to exercise reasonable care for others’ physical safety and the safety of their property at the time that you were hurt. For example, if we are driving a car on the roadway, we have a duty to other drivers and pedestrians on the roadway to follow the safety rules to prevent harm or death.
Second, you have to show that the person’s choices breached the duty they owed to you by failing to conform to the required standard of care. For instance, a driver who chooses not to pay full attention to the road and causes a motor vehicle collision does not meet the standard of care.
Third, you must be able to show that the person’s choices were the proximate cause of your injury. Proximate cause simply asks if the harm or injury that you suffered was foreseeable. For example, if a driver negligently drives his vehicle, it is foreseeable that he might cause a motor vehicle collision with another vehicle, hit a pedestrian or crash into a storefront?
Finally, you have to show that you were in fact harmed and harmed in a way that can be compensated. (However, if you are making a claim against a manufacturer for a defective product, you may only need to prove that there was a defect and that it caused your injury. This is what is called strict liability.)
Unlike a workers’ compensation claim, you can receive compensation from a third party for the following:
- All past and future medical care and treatment;
- All past and future loss of earnings;
- All time lost at work, even if paid under sick leave, vacation time or other benefits (third party does not get to benefit by the benefits you earned and may have used up);
- Loss of enjoyment of life and activities that you have missed out on;
- All past and future pain, suffering, emotional distress and inconvenience;
- Property damage if you were using your own property (ex: driving your own vehicle).
What kinds of work injuries create companion or third-party cases?
Any combination of circumstances and people can come together to cause a work-related injury. However, many work-related injuries tend to fall into the following categories:
- Someone gets into a car crash while driving for work — If you are driving as part of your job and get into a car collision that is not your fault, you may be able to sue the other driver in addition to collecting your workers’ compensation benefits.
- Slips and falls and other injuries that happen on someone else’s property — If you are working on someone else’s property and you are injured due to a dangerous condition, you may be able to sue the building owner, property manager and/or cleaning company in addition to collecting your workers’ compensation benefits.
- Injuries to subcontractors working on construction sites — If you’re injured on a construction site while working for a subcontractor, you may be able to bring a lawsuit against the general contractor in addition to collecting your workers’ compensation benefits.
- Defective products — If you are using a certain tool or device and it is defective due to faulty manufacturing, you may be able to sue the manufacturer in addition to collecting your workers’ compensation benefits.
What else should I know about companion or third-party cases?
No matter the category that your claim may fall under, it’s important to know what impact your third-party claim will have on your workers’ compensation claim and vice versa. Because ultimately that third-party is the cause of your injuries, they do not get to benefit from workers’ compensation paying for your medical treatment and partial reimbursement for lost wages. In fact, the workers’ compensation carrier (your employer’s insurance carrier) has a right to be reimbursed for benefits paid to you as a result of this negligent third-party. The workers’ compensation carrier may place a lien on your claim, which basically means they have to reimburse out of the proceeds of your third-party claim. This process whereby the insurance carrier claims a right to reimbursement from the third party, who is also responsible for the loss, is known as subrogation.
Having a workers’ compensation claim and a personal injury claim going on at the same time can be overwhelming and time-consuming. Therefore, it is very important to have an experienced attorney handle your companion case. There are many traps and pitfalls that an attorney who is not well versed would not be able to avoid. Having an experienced attorney can also be effective in making sure you recover for all your damages and help you maximize your possible recovery. An experienced and knowledgeable attorney, like those at ChasenBoscolo, can help by negotiating with your employer’s insurance carrier and the third-party’s insurance carrier to maximize your recovery and make sure you are fully compensated on both claims.