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My husband was in a head on collision last august, we are getting ready to settle, need advice on pain and suffering amount

Auburn, CA |

2 lane hwy, oncoming driver made unsafe left turn, my husb. was going approx 55. car totalled, broken sternum, problems with nerve area of hip (at belt line). 100% other driver's fault. He was totally uninsured. We have unins. motorist $100k. Ins has paid us for totalled car($2300), has paid chiro bills ($2300) and is ready to pay ER, ERDr and Radiologist (approx $13000). They are willing to pay us for lost wages (we're self emp prob $4000) and pain and suffering. Feeling mostly functional, but still some neuropathy in leg due to nerve at belt line. Def. has affected his normal functionality, but he's feeling like he's about as good as it's gonna get and will prob need to continue chiro care occasionally to work on keeping hips in line. Any ideas about pain and suffering amount?

this was a little car that we just carried liability only on. However our agent had added the coverage in case there was an accident that was 100% the other person's fault (which this was), that allowed us to be reimbursed for the vehicle (which they did give us $2300 for that), and then we do carry the um coverage. Also, seems we're getting feedback that it should be a full limits payout. In your experience, if a full payout happens, is the ins. co. likely to end up dropping you from their coverage?

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Attorney answers 11

Posted

Are you going forward without an attorney? In my opinion, it would be best to be represented by an attorney. An insurance company (even your own) will attempt to low ball you. Most attorneys in this industry would work on a percentage basis and help to insure your medical bills are paid.

With the injuries you have stated, your insurance should fork over its policy limit. Feel free to contact me if you would like a free consultation.

Michael Rabban
(818) 827-2603 direct office line

Posted

If they arent paying the full 100k, you should see a lawyer asap. has your husband been seen by MD? had a lumbar mri? Had emg/nerve conduction tests ? Im not sure he has full diagnosis of injuries yet, treatment may not be complete, and the future is unknown. You also have a loss of consortium claim, and if you were in the car, you may have addl claims of your own.

You really should check with a lawyer before you proceed.

Asker

Posted

Thank you. I was not in the car. He was by himself. He was seen in ER the day of accident. (I took him there). They ran chest xrays cuz his chest hurt, bandaged up his knee (his knee hit the dash), said the tissue around his ribs was all bruised. After two weeks of no relief of pain in chest area, went back to ER and they ran a CT scan and found that the sternum had indeed been fractured.

Asker

Posted

We are self emp and do not carry medical insurance right now. The tests that were run in the ER are waiting payment. At this point we have no out of pocket med bills. We tried calling around to different doctors to see if he could get any further diagnosis, but none would take him based on waiting for insurance to pay, they want $ up front - which we don't have.

Robert Bruce Kopelson

Robert Bruce Kopelson

Posted

A lawyer may be able to help you get treatment on a lien.

Asker

Posted

additionally, they have been making payments to the chiropractor along the way

Robert Bruce Kopelson

Robert Bruce Kopelson

Posted

I dont know if you have med pay and that is whythey have been paying. You want them to pay the med pay limit and you need to show the case is worth more than the um limit plus the med pay limit. If they are saying they will settle with you and pay your med bills directly and send you a small check for your other damages, tell them no.

Asker

Posted

yes, the medpay has been paying the chiro (I think it was 2 or 3k that we had for medpay)

Robert Bruce Kopelson

Robert Bruce Kopelson

Posted

I would be surprised if you had med pay coverage big enugh to pay for the addl medical bills you say are 13000.00. That makes me concerned that they are actually going to dip into the liability portion under um part of the policy and pay your providers directly. That may not be advantageous to you. that is why I suggest you see a lawyer. Im in San jose, which is not that close, but I can try to hook you up with some attys in your area. If you would like that, let me know. Robert 408-293-4000

Asker

Posted

correct, med pay was only a few thousand, which basically has covered the chiro bills . Yes, the way it was expressed was the remaining medical bills would be paid out of the uninsured motorist portion, and that our lost wages and pain and suffering would also come out of the uninsured motorist, that they would be making us an offer once we submitted all the medical bills.

Asker

Posted

update: we are trying to get an MRI/nerve conductivity test scheduled with the MRI place (they are checking to see if our medpay has been exhausted. Medpay has pd 1500 to the chiro so far. Chiro has billed out $1300 more and hasn't been pd for that yet. Still having nerve pain in front of hip. New pain, lower back/going down over butt area/down to upper thigh. He went to chiro twice and this seems to be improving and may go away. If nerve conduction/mri doesn't show anything or anything significant, yet he's still having discomfort, does that lessen our case? Also, we just lost our inspections from our main supplier of foreclosure inspections since his score has remained under par. Hence, we have lost 3 weeks of income waiting for inspections to come through, and we finally found out yesterday that he got bumped down in his zones, which basically eliminated his work. Now he's out looking for a job (we've been self-employed for years) or two, whatever can fill the gaps. After his accident, I had to help him do some inspections to try and keep up. I have been an at-home mom for a long time (4 kids, 2 in college). So with this current uncertainty of income, what is the best way to project that out in a demand letter?

Robert Bruce Kopelson

Robert Bruce Kopelson

Posted

I recommend you hire an atty. You will likely get taken advantage of w/o one. Your husband needs to have his injury claim worked up properly, and you shouldnt be draining med pay with chiro treatment. If you continue to proceed on your own, you may do harm to the claim that an atty may not be able to undo later. I offered to give you referrals to local attys awhile ago, and you didnt take me up on that. I still recommend you get a lawyer. However it is your case and you can proceed as you wish. I doubt any atty on line is going to write a demand letter for you. When I do them, they are tailor made for the case. Youre not even at the point that Id recommend a demand letter be sent. I think he should be seeing an MD and probably a specialist. Good luck.

Posted

This is a serious case. Get a lawyer

Posted

You are making a big mistake if you are attempting to settle this claim without the assistance of a good personal injury attorney. It is not realistic to place a settlement value on this claim without knowing much more about the injuries sustained - reading medical records; speaking to treating doctors etc. You have a serious injury with future medical care & possible long term problems. Most personal injury attorneys, like myself, do not charge a consultation fee. Get some professional help with your claim.

This is not intended to be legal advise or as legal representation. I am a California personal injury attorney . Be aware that every state has its own statute of limitations; and statutes & case laws that govern the handling of these matters.

Posted

Without a lawyer, you'll likely settle for 11% of what a good lawyer could get you. You know what to do.

Posted

This is a significant case with substantial injuries! It seems like a policy limits case ($100,000.00). I would demand the policy limits and give them 10 days to pay in full, or tell them you are going to retain an experienced lawyer in the area of autombile liability and uninsured motorist claims and will consider the $100,000.00 policy limit opened up to an unlimited amount! It seems your insurance compnay is playing with you and "acting in bad faith" on a first party claim, trying to save some money by not tendering the $100,000 limits right away given the injuries and clear liability.

Legal disclaimer:This message does not constitute legal advice and does not create an attorney-client relationship. Any statements are made for general informational purposes and do not constitute legal advice. No attorney-client privilege is created by this communication. Attorney is licensed in California only.

Asker

Posted

How could the $100,000 policy limit be opened up to an unlimited amount?

Constantine D. Buzunis

Constantine D. Buzunis

Posted

If they unreasonably refuse to timely pay the policy limits they arguably are acting in 'bad faith' and 'open up' the policy limits to an unlimited amount for acting in 'bad faith'. That is why, given the facts of the accident (clear liability) and significant damages of broken sternum, etc., they should have offered the $100,000.00 a long time ago! Make a written demand for the $100,000.00 and give them 10 days to agree to pay and the check delivered within 20 days. Tell them their refusal with constitute an unreasonable refusal to pay the policy. If your insurance company refuses to pay you under an uninsured or underinsured motorist coverage, you may be able to sue the insurance company for breach of contract on the basis it did not live up to your agreement created when you purchased the uninsured or underinsured motorist coverage. Your insurance policy may, however, require that you arbitrate the claim rather than give you a right to sue in court. If you are successful and the insurance company had no reasonable basis for denying your claim, you may be able to sue your insurance company for “bad faith” denial of your claim. In a successful bad faith claim against the insurance company, not only would you be entitled to recover the damages you suffered from the accident, but also any and all damages you incurred as a result of the insurance company’s bad faith refusal to pay your claim. You would also have the right to ask for “punitive damages” from the insurance company for their callous actions, resulting in a possible substantial award against the insurance company.

Asker

Posted

Okay, so before I would make a request in writing for the policy limits, should they have a copy of all doctor bills? They have some from the 2nd ER visit already

Constantine D. Buzunis

Constantine D. Buzunis

Posted

You need to prepare what they call a demand letter that sets forth the facts, basis for liability, witnesses, police investigation, injuries and damages, past and estimated future medical bills, past and future loss of earnings, loss of earning capacity, round trip mileage to and from medical appointments, car dealer or auto body shop, tow bills, pain & suffering, and your loss of consortium as a separate claim as the spouse for loss of care, comfort and society. You need to attach the medical bills and letter from employer for his lost wages, police report and photos, and main not all of the medical summaries from the hospital, doctors and x-ray lab. I am happy to take this case on for a reduced contingency fee of 25% if you are interested? Normally my fee is 33 1/3% and then 40% if we have to go to the trial readiness conference. Although you are in Auburn, CA and I am in San Diego, most of the work can be via email, fax, regular mail and phone. Good Luck!

Asker

Posted

what is the process for me filing a separate claim?

Constantine D. Buzunis

Constantine D. Buzunis

Posted

just put them on notice that you are making a claim for loss of consortium, loss of care, comfort and society, when you make your husband's claim. You will need to explain how your life is different as a result of his injuries, chores, earnings and financial and emotional support, intimacy, sexual relations, etc.

Asker

Posted

does that 'claim' go as just a separate claim under our uninsured motorists? Is it advised to first include it in our demand letter, just outlining it as a separate amount?

Asker

Posted

update: we are trying to get an MRI/nerve conductivity test scheduled with the MRI place (they are checking to see if our medpay has been exhausted. Medpay has pd 1500 to the chiro so far. Chiro has billed out $1300 more and hasn't been pd for that yet. Still having nerve pain in front of hip. New pain, lower back/going down over butt area/down to upper thigh. He went to chiro twice and this seems to be improving and may go away. If nerve conduction/mri doesn't show anything or anything significant, yet he's still having discomfort, does that lessen our case? Also, we just lost our inspections from our main supplier of foreclosure inspections since his score has remained under par. Hence, we have lost 3 weeks of income waiting for inspections to come through, and we finally found out yesterday that he got bumped down in his zones, which basically eliminated his work. Now he's out looking for a job (we've been self-employed for years) or two, whatever can fill the gaps. After his accident, I had to help him do some inspections to try and keep up. I have been an at-home mom for a long time (4 kids, 2 in college). So with this current uncertainty of income, what is the best way to project that out in a demand letter?

Constantine D. Buzunis

Constantine D. Buzunis

Posted

You really need an attorney who will manage the case, front costs of litigation and take a contingency fee or do the case on a percentage. If you mess up the claim, you may get far less or nothing by trying to save on an attorney. That being said, the less objective evidence, the harder the case to prove. if the MRI, CT Scans and EEGs show objective evidence of disc herniation, etc. the easier the case. As long as the meds are reasonable and necessary they should end up being recoverable, although in the end they will likey exceed the UIM policy limits. Do you not have any medical insurance? Have you applied for Medi-Cal and Social Security Disability? Not sure what score under par means and why you lost inspections? As far as a loss of earnings and loss of earning capacity, you need to bacially take into account earnings prior for several years vs. since and calculate the loss and then what the doctors ultimately say about his ability to work in future if at all, for how long and at what kind of job at what kind of pay, etc? This is usually done in an injury case by economic and vocational rehab experts after looking at doctor's findings on extent of injuries and permanent disabilities and handicaps.

Asker

Posted

We have not had medical insurance for awhile. Have not applied for medical. My husband is not disabled and doesn't want to take any disability. He's always been a hard worker and very healthy. You said as long as the meds are reasonable. I'm not sure what you meant there. Did you mean Md's or medicines? He is not taking any medicines. He took some pain pills in the very beginning, but that was it. We do expect him to keep working, he has been. It is currently affecting his driving (long distance or timewise), and since he just lost a huge chunk of house inspections that he normally does, he is out looking for employment right now.

Constantine D. Buzunis

Constantine D. Buzunis

Posted

I meant that the medical care was reasonable and necessary and not just to rack up bills. If he is injured and he can't work and presumably lost business due to his injuries, put pride aside and apply for medi-cal, social security disability and unemployment if he qualifies? Has the doctor said he can keep working or should he be at least on temporary disability? These benefits might help you keep your home as things get more costly and he is possibly unable to work at all? Why are you reluctant to get an attorney? If you lose the case or mess it up or fail to make the claim properly, then you will lose far more than the lawyers fee!

Asker

Posted

Constantine, if your firm is retained would we likely incur higher fee due to any travel necessary since you are in So Cal.?

Posted

As this collision is less than a year old, I question whether or not your husband has reached maximum medical improvement or a medical end result. The fact he has continuing problems indicates that he needs to be evaluated for any permanent impairments by a well-qualified physician, so that your husband's future can be better determined and the costs of future care estimated.

You have a derivative claim, separate and apart from your husband. Has your insurance company mentioned this to you or offered you payment for your loss?

I gather you are attempting to handle this matter without the assistance of counsel. That is a large mistake. Your uninsured motorist carrier is neither your friend nor your good neighbor. Their sole goal is to pay you nothing or as little as possible on your claim.

You should obtain needed medical care and treatment immediately and follow the doctor's advice. Do not give any statement to the adverse party or insurance company nor grant them access to any medical records. Photograph the injuries and the damage done to any property. Contact a personal injury attorney in your area as soon as possible so that you can protect your rights. You may also find it helpful to review the Legal Guides I have published on Avvo.com dealing with many of the issues you are now facing. The Guides can be accessed through my profile page on Avvo.com.

Legal Disclaimer:

If this information has been helpful, please indicate below.

Mr. Lundeen is licensed to practice law in Florida and Vermont. The response herein is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that, if known, could significantly change the reply and make it unsuitable. Mr. Lundeen strongly advises the questioner to confer with an attorney in your state in order to ensure proper advice is received.

This ans. does not create an attorney/client relationship.

Asker

Posted

when you say a derivative claim, are you talking loss of consortium?

Lars A. Lundeen

Lars A. Lundeen

Posted

A spouse has a derivative claim. Simply stated, a spouse may have lost the benefit of one or more of other spouse's services in and around the home. In some states you may be able to recover for the value of nursing services,lost income to nurse your spouse Etc. As such, a spouse is entitled to be compensated for this loss. Since this is the case, insurance companies generally will not settle a claim, unless both spouses are included in the settlement agreement.

Asker

Posted

assuming they would agree for policy limits let's say, does that just mean I would be named in the settlement

Asker

Posted

or would it automatically require arbitration if I was going to be in the agreement?

Lars A. Lundeen

Lars A. Lundeen

Posted

You would sign a release. Arbitration is necessary if you cannot agree on an amount.

Posted

yes, I have a very good idea of pain and suffering amount = policy limits. And, you will need to maximize your recovery from this by negotiating/eliminating any claimed medical liens on this recovery. My office is in Sacramento and I'd be happy to discuss this with you 916-442-0000 - Fred

Asker

Posted

eliminate the medical bills? how would that work?

Asker

Posted

I understand negotiating the price down, especially if they're going to be paid cash, but eliminated?

Frederick Joseph Sette

Frederick Joseph Sette

Posted

depending on the basis of the lien, the Made Whole Doctrine is alive and well in Cali. If this young lady is not made whole by the policy, then you've got a very good argument. Additionally, this resolution will have to go before the court. Through both case and code law the court has great discretion to order whatever is in the best interest of the minor, to include addressing any claimed medical liens.

Asker

Posted

There's no minor involved. It's my husband. He was the driver and only person in the vehicle. Other person that his is 100% at fault.

Frederick Joseph Sette

Frederick Joseph Sette

Posted

apologize for the mis-read but the Made Whole would still apply. In summary, lien issues are complicated. I'm not saying whatever liens are being asserted can be eliminated, but there may be a chance and most definitely they can be reduced. Your first step is getting the policy limits which based on the information I have (limited) is warranted.

Posted

If someone suffers a fractured sternum... not an easy bone to fracture, by the way, which can cause one heck of a lot of pain... and have potential problems down the road... and if one also has other significant injuries... one should be more worried about policy limits not being enough to cover the amunt he or she deserves.

I've been posting my biased opinions and comments here and there on the Internet and Avvo for a while now (since Al Gore invented the online attorney forums, I believe), and every time I see a post about a person doing battle all by his or her non-lawyer self against an insurance company, I keep thinking the post might as well read something like, “my no-insurance nephew needs to get that brain aneurysm removed, but it’s located right near his mah-doola. His headaches have gotten so bad he's up to eight cans of Rheingold a day for the pain. So, what I need to know is whether I should use my Black ‘n Decker cordless to go in through the back of his thick skull or through his big mouth...”

No one who has suffered personal injury should do battle against an insurance company without a lawyer. No one but a neurosurgeon should do brain surgery, even if one’s nephew is a schmuck.

We personal injury lawyers offer free consultations. We handle cases on a contingent basis. We actually love the game, the battling, the negotiations, the tactics, etc. Some of us... like me... practice anywhere in California... An injured person should just worry about getting better.

- Paul

Paul J. Molinaro, M.D., J.D.
Attorney at Law, Physician, Broker
Fransen & Molinaro, LLP
980 Montecito Drive, Suite 206
Corona, CA 92879
(951)520-9684
www.fransenandmolinaro.com / www.888MDJDLAW.com

"When you need a lawyer, call the Doctor... Call Paul J. Molinaro, M.D., J.D... Call (888)MDJDLAW."

* This post and all others I make on Internet are for informational purposes only. None of the information or materials I post are legal advice. Nothing I post as comments, answers, or other communications should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing of this information does not constitute, an attorney-client relationship. While I try to be accurate, I do not guarantee accuracy.
** Fransen & Molinaro, LLP practices in the areas of personal injury, medical malpractice, and real estate law.

Paul J. Molinaro, M.D., J.D. ... Attorney at Law, Physician, Broker... Fransen & Molinaro, LLP... 980 Montecito Drive, Suite 206... Corona, CA 92879... (951)520-9684... www.fransenandmolinaro.com / www.888MDJDLAW.com... "When you need a lawyer, call the Doctor... Call Paul J. Molinaro, M.D., J.D... Call (888)MDJDLAW." ... * This post and all others I make on Internet are for informational purposes only. None of the information or materials I post are legal advice. Nothing I post as comments, answers, or other communications should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing of this information does not constitute, an attorney-client relationship. While I try to be accurate, I do not guarantee accuracy... ** Fransen & Molinaro, LLP practices in the areas of personal injury, medical malpractice, and real estate law.

Asker

Posted

and if the policy limits are not as much as deserved?

Paul J Molinaro

Paul J Molinaro

Posted

Re: "and if the policy limits are not as much as deserved?" That is a question with an answer that would involve a discourse on law, politics, insurance regulations, ethics, and more... and could be taught as an entire course at some ivory tower institution... California allows drivers to cruise around with minimum of $15,000.00/$30,000.00 coverage… and this is in the year 2013 when a trip to the ER via ambulance for some scans, a few bandages, a prescription for some pain meds, and a wallet biopsy can run $15,000.00 all by itself. While many of us personal injury types do our part to lobby for higher minimum limits (as well as aggressive fight MICRA on medical malpractice cases… another humongous topic)… the best we can do in the short term for our current clients is to make sure our client gets recovery from every possible avenue – the driver, the vehicle owner, the wmployer of the driver, the employer of the vehicle owner, the premises (if private), the vehicle maker (maybe a defective vehicle), and all of the applicable insurance companies… including our client’s own policy… finding the money is our job! - Paul Paul J. Molinaro, M.D., J.D. Attorney at Law, Physician, Broker Fransen & Molinaro, LLP 980 Montecito Drive, Suite 206 Corona, CA 92879 (951)520-9684 www.fransenandmolinaro.com / www.888MDJDLAW.com "When you need a lawyer, call the Doctor... Call Paul J. Molinaro, M.D., J.D... Call (888)MDJDLAW." * This post and all others I make on Internet are for informational purposes only. None of the information or materials I post are legal advice. Nothing I post as comments, answers, or other communications should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing of this information does not constitute, an attorney-client relationship. While I try to be accurate, I do not guarantee accuracy. ** Fransen & Molinaro, LLP practices in the areas of personal injury, medical malpractice, and real estate law.

Asker

Posted

Paul, if your firm is retained, would it be likely to incur higher costs due to any necessary travel?

Paul J Molinaro

Paul J Molinaro

Posted

Not on contingent matters such as personal injury or medical malpractice. That said I do take into account the overall value of a case as compared to distance in our very large state.... so, while I may take a small case right next door, I would not take the same case on the Oregon border... the bottom line, is that whether a case is here or up there, once I take the case, it will get the same attention and aggressive representation.... if I was not certain of that I would not take the case. - Paul

Posted

You should consult a qualified personal injury attorney immediately to assist you in evaluating your case. The fractured sternum and the nerve issues are of primary concern. You as spouse also have a loss of consortium claim. Your lawyer should refer you to a specialist to determine long term prognosis and degree of permanency and disability.

Posted

I'm not licensed in CA, but I could never under the facts you stated recommend to a client of mine to settle for less than $75K, and I certainly would be willing to take it to trial where a jury verdict could easily exceed the policy limits. You have a solid case and you need to get some professional help from a personal injury attorney in your state. If your insurance company does not act right, then you may also have a bad faith claim against them too.

Attorney Stacy E. Pepper is licensed in all State and Federal Courts in Mississippi. He is a founding Partner in the law firm of Pepper & Odom, P.C. Nothing posted here constitutes any attorney client relationship and is meant for educational purposes only. Office hours are 8:00 a.m till 5:00 p.m. Monday through Friday. Phone: 601-914-9219 Facsimile: 888-456-2160 www.pepperodom.com