My wife, 2 daughters and me were hit head on by a drunk driver. We spent a few days in hospital and are now recovering for the past 5 weeks. Car totaled, we all have ribs injuries for the most part. No surgeries. The offending driver has 100K insurance and we have under-insured 500K protection. Medical bills will probably end up in the $250K (around $150K in fact will be have paid by Cigna). Qustions: 1. Is the P&S is indeed a X3-5 factor of medical bills? If yes, what is the base - the alleged as billed by hospital or actual? 2. Even in this magnitude of bills? 3. Does the insurance company gets "discount" for multiple ppl injured? 4. Can I claim aggravating circumstances against my own insurance? 5. Should I wait and see how much my insurance will offer me or assume they will low ball me
First off, thank goodness you and your family are still alive. Head on collisions are generally the most fatal type of wrecks. Here is hoping that none of you will end up with long term impairment or chronic pain.
Without a doubt, hire counsel immediately, so that they can get to work right away making sure evidence is preserved, witnesses are interviewed, and you receive the proper legal guidance and support.
With regards to your questions, it used to be true as a rule of thumb 20 or more years ago that you could generally recover approx. 3x the hard damages such as medical bills as a total settlement, even pre-litigation. However, with the changing legal climate in the last 20 years due to insurance companies and business interests doing everything they can to change the laws and mislead the public about the legal system in order to protect their assets and profits with "tort reform" efforts, it is much harder these days for injured plaintiffs to get justice for what has been done to them. Having said that, experienced personal injury counsel will work to maximize your recovery seeking compensation for all of the damages you and your family may unfortunately be dealing with.
Your first question concerns pain & suffering, which is only one of several potential types of damages that a jury can order the defendant -- in reality their insurance company -- to pay. Others include impairment, disfigurement, mental anguish, past medical expenses, future medical expenses, past loss of earning capacity, and future loss of earning capacity. The attorney you need to hire right away should do everything they can to maximize your recovery, and experienced personal injury counsel will know the best methods and strategies for doing so. Your situation is definitely not one to take on by yourself. Even with an attorney getting paid a fee out of the recovery, you will almost certainly recover more for you and your family with an attorney on your side fighting for you. Believe me, the defendant's insurance company (and even your own car insurance company, unfortunately) will have legal professionals doing everything they can to minimize how much money those insurance companies will pay. Trust me, they are not on your side. (I have to sue my clients' car insurance companies all the time because of lowball UM/UIM settlement offers.) Regarding your medical bills, one thing that all of the insurance companies involved will do is seek to limit the amount of medical bills that a jury would get to see -- in recent years, auto & property/casualty insurance companies -- through campaign contributions, lobbying, and misinforming the public with misleading PR campaigns -- got the law changed so that the only parts of a client's medical bills that get to a jury is the actual amount for the bills that were actually paid by your health insurance company (even though your health insurance company will seek to get reimbursed via subrogation -- a dirty secret a jury is never told), and unjustly, juries routinely get mislead by medical bills that are much lower than the amounts originally billed to the injured party. An attorney that knows what they are doing will know how to best counteract these hurdles, as much as possible.
Regarding your 3rd question, no, the insurance companies shouldn't get a "discount", but if your case against the drunk driver goes to a jury trial, the rules of court provide that the jury is not allowed to even consider insurance (including whether a defendant has auto insurance, and whether you and your family has health insurance), but if you have to end up suing your own car insurance company because of a lowball offer (a common occurrence), you would be suing your auto insurer directly, so the jury would know there is insurance involved in that case. In answer to question 4, given the defendant's somewhat low coverage, likely. Answering 5, assume lowball.
All the best to you and your family. Help is available
I'm sorry to hear about this accident, but glad that, ultimately, you and your family are all right. Here are my best "generalized" answers to your questions (operating on the understanding that most of this is case specific and fact intensive):
1. No. Pain and suffering is the amount of money that a judge or jury will ultimately award at trial based upon the evidence of severity of injuries, the duration the injuries will last, permanency of the injuries, etc. There is no specific formula other than "must be based upon the evidence and fair and reasonable."
2. See #1. In my experience, the higher the economic damages (i.e., things provable with a receipt such as medical bills) then the higher the noneconomic damages (i.e., no receipt, such as mental anguish) will be.
3. No, although they will try to. You need a lawyer to deal with them otherwise you are all but guaranteed to get shortchanged.
4. Potentially. Again, a lawyer can help assist you with policy interpretation and your insurance company's actions.
5. No. You should take action and lawyer up. The insurance company has. As the ultimate "plaintiff" (i.e., person filing suit), most lawyers will take your case on a contingency basis wherein you and your family pay no out of pocket costs and the lawyer only gets paid if you recover money.
I hope this helps. Heal quickly and take care.
There are a number of factors including the type of medical treatment you received, any permanency, and the jurisdiction the claim will be filed. Hire a lawyer and let them handle claim valuation. The insurance company will low ball you. With this much at stake you need an experienced personal injury attorney to make sure you get your full measure of damages.
Oh my -- hire a personal injury attorney right away! There is more money available than you have identified!!
In no way am I offering you legal advice, and in no way has my comment created an attorney-client relationship. You are not to rely upon my note above in any way, but insted need to sit down with counsel and share all relevant facts before receiving fully-informed legal advice. If you want to be completely sure of your rights, you must sit down with an experienced criminal defense attorney to be fully aware of your rights.
You definitely need a personal injury lawyer who handles cases against drunk drivers. Mothers Against Drunk Driving provides a list that includes myself and other lawyers. I'm sorry to hear that this has needlessly happened to your family.
You have excellent questions that cannot be sensibly answered without knowing all of the facts. You need to consult with a qualified personal injury attorney now because you need to exhaust all possible sources of recovery. From your factual summary, you need to examine one additional vein of recovery. Determining how the driver got drunk will allow you to investigate filing a Dram Shop action. With every passing day, videotapes of the inside of bars are copied over and evidence disappears. There are many complexities in this area, so hire someone experienced to help you. With the level of your damages, qualified attorneys from all over Texas will be willing to represent you.
By providing this legal analysis of the issue presented, no attorney-client relationship is being formed. Additionally, attorney is not agreeing to represent the individual who presented the question concerning the legal issue. A signed retainer agreement is required before an attorney-client relationship is established. The analysis provided is meant solely to provide general guidance about the legal issue presented.
I am sorry to hear of this accident. Generally, there is no actual multiplication formula for pain and suffering. However, there are things that can show pain and suffering and increase your damages related to this suit. I like to call witnesses that can attest to how you were before and after the accident, how it has impacted you and made life difficult. Some close friends or relatives who see the change are best for this.
And ultimately, you yourself are the best evidence of the impact this accident has had on your life. I advise most seriously injured clients to keep a pain journal that documents their injuries and symptoms on a daily basis. When a jury sees the journal entries from a year after the accident say something honest and emotional like, "I woke up and could barely move" or something along those lines.... they tend to feel that there is tremendous pain and suffering still ongoing.
When you talk general damages like mental anguish and P&S, you and your lawyer are largely in control of those numbers. How you present and your attorney present will guide your recovery significantly.
As for the UIM/UM coverage, you'll need to max out the 3d party liability and then present similar evidence for them. They are your insurance, so the difference here is you have to work with them more, give statements and documentation, etc. Ultimately you can still sue them as well if they don't offer you a fair amount. We have good attorneys in Austin, good luck.
With pain-and-suffering the biggest single factor to the testimony of your physicians and or witch doctors have disabling medical records. It is a mistake to assume any formula will apply. Medical bills are now calculated based on what was actually paid or incurred- (what your health insurer paid, plus out of pocket costs). You can pretty safely assume with an underinsured claim in Texas that you may be low balled. Texas judges have given the insurance companies every incentive to play hardball with their own insured with uim cases.
Do you know where the drunk driver got drunk? A bar or club may have some exposure depending on the facts.
Talking with an attorney in your area who offers a free consultation is not a bad idea.
Greg Baumgartner has 2 law degrees (less than 1% of all attorneys)- Perfect 10 Avvo rating. This answer is intended to be general in nature and not specific as to any person or fact situation. No attorney-client relationship exists for those reading this answer and readers should contact an attorney of their choosing for legal advice on their specific situation.
I'm coming late to the party on this one but here is my input:
Qustions: 1. Is the P&S is indeed a X3-5 factor of medical bills?
No, that is a myth. If I lost both hands in an accident I could probably get the injuries addressed for around $50,000 but the general damages (pain and suffering) for a lifetime with no hands would be valued much higher than $150,000 to $250,000.
If yes, what is the base - the alleged as billed by hospital or actual?
In Texas you can legally recover, and put into evidence for the injury, the sum of any amount paid by health insurance, plus any amount paid you you, plus any amounts you still owe. You cannot recover any amount written off by the medical providers. This is so called "paid versus incurred" math. The statute is Texas Civil Practice & Remedies Code Sec. 41.0105.
2. Even in this magnitude of bills?
3. Does the insurance company gets "discount" for multiple ppl injured?
No. Each individual claim stands on its own merit. There is a per-person accident limit to the drunk's policy, and a per-accident limit. I can't tell from your post if his per-person is $100,000 or if that if his per-accident limit.
4. Can I claim aggravating circumstances against my own insurance?
My answer is yes, but only to a limited extent. You cannot recover exemplary/punitive damages via an underinsured motorist (UIM) claim. But if your UIM carrier lowballed you and you sued them, you have to prove liability on the drunk driver so the intoxicated driving may come into evidence that way. While the jury may not be able to award punitive damages against your UIM carrier, it may be reflected in their award of physical pain and mental anguish, which is covered by UIM. A more efficient approach to all this might be to sue the drunk and your UIM carrier in the same lawsuit, though that's clearly not a DIY project. UIM claims are weird claims thanks to the Texas Supreme Court's opinion in Brainard v. Trinity Universal, holding that there is no duty on a UIM carrier to pay anything until there has been "a judicial determination of liability and damages." Often times UIM carriers hide behind Brainard to save money and force their policyholders to sue to recover their damages.
5. Should I wait and see how much my insurance will offer me or assume they will low ball me
I think you'd be crazy to entertain settling any of your claims this early on. Injuries can linger for months. Sometimes they get better with time, sometimes they get worse. Once you settle there's no coming back to ask for more money. I would recommend all of you seek good follow-up care and make sure any and all injuries are addressed. Remember, this is a PERSONAL INJURY claim, so documentation of the injuries and the effects of those injuries is critical.
I've included some links below to AVVO video guides I've made that may be of help to you given the facts you've provided. I think you have a strong claim, but it needs to be properly developed and presented to settle for the "right money."
Disclaimer: answers posted by attorney Daragh Carter to questions posted on AVVO are NOT privileged or confidential and will not and should not be construed to create an attorney-client relationship between attorney Daragh Carter and you or anyone else.
Agreed, sorry to hear that. Seriously you should not be dealing with on your own. Your last statement about a low ball offer is correct. You need a lawyer who is not afraid to litigate the matter should it not settle. There are numerous factors that go into a case evaluation all of which cannot be discussed in this forum.
I urge you to contact reach out to a litigation lawyer to get your case handled. This will be your only way to maximize damages. Any lawyer in Texas can help you. Consultations are free.
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Best to contact any of the well respected attorneys that have responded to your query. Your situation deserves a Board Certified Personal Injury Trial Lawyer. Set up an appointment as soon as you can.
Was my answer "HELPFUL" and/or a "BEST ANSWER?" I appreciate you for noting same. Thank you. The information contained herein is not to be construed as legal advice. The questioner should seek independent legal advice from a qualified attorney after establishing a proper business relationship. Forrest Welmaker is Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization. No attorney fees unless a recovery is made. Doctor referrals are usually available.
I can think of at least fifty different questions I would need you to answer - in addition to what you have listed above - in order to accurately and honestly answer your questions. In this scenario, I cannot recommend to you highly enough that you contact an attorney immediately. Most personal injury law firms, including mine, offer free consultations. You absolutely should take advantage of that.
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