How To Negotiate Your Own Personal Injury Settlement
For those who choose to represent themselves in negotiating their own personal injury settlement directly with the insurance company, I offer some tips that may be helpful in your negotiations with the adjuster.
MAKE SURE YOU HAVE A CASEMany people assume because they were injured, someone must be responsible for their injuries. This is particularly true when accidents occur on a premises that is not their own. Just because you are injured does not mean someone else has to pay for your injuries. Whether it is a premises liability, dangerous product or even car accident, make sure you have a reasonable claim or you are simply spinning your wheels.
MEDICAL RECORDSObtaining your medical records after you have been released by your treating physicians is an important step in moving your personal injury claim forward. It is extremely time intensive to gather your records in an appropriate form for submission to the adjuster. Most medical providers and hospitals charge a fee for certified copies of your records. These fees can be as little as $15-$20 and often can be quite a bit higher. Obtaining the records by affidavit is recommended because if the appropriate affidavit is used, the records may be used in a lawsuit should one be filed later.
Most insurance companies will ask for an authorization for release of medical records to be signed by the claimant in order for the insurance company to obtain directly relevant medical records. The downside of this approach is, you lose control over when and how the records are obtained and with an unlimited authorization the insurance company can obtain unrelated personal records that may be remote in time.
We always recommend obtaining your own medical records for submission to the insurance company because you will control the receipt of the medical records and you will also have a good number for the amount of the medical bills. In Texas, the appropriate number for medical bills that were because of the accident are those "paid or incurred". This will be the amount that the health insurance company paid, plus out of pockets and any amount that the medical provider says you still owe after the insurance payments. If the healthcare provider has "written off" portions of the bill, in Texas you can no longer collect the portion which has been reduced.
Tip: We recommend obtaining your own medical records for submission to the insurance company.
DOCUMENTATIONObtaining the accident report if you are involved in a car wreck also is helpful to help explain the crash to the insurance company. Many crash reports contain information such as witnesses, and the statements of the negligent driver which may be helpful in proving liability. While accident reports may or may not be admitted into evidence, the information available in the crash report almost always is helpful.
Most crash reports are available online for a nominal fee.
Tip: When possible, obtain a certified copy of the crash report.
if there are witnesses to your accident that are helpful for explaining the fault of the insured, having statements from the witnesses or providing the names and phone numbers of the witnesses to the adjuster can be helpful in determining liability. Often, for one reason or another, the insured changes their tune from the time of the crash and now contends it wasn't their fault. Having independent third parties available to testify regarding the negligence of the insured goes a long way and helping settle a case.
If you're in injured in a car accident, you will want to obtain photographs of the damage to your vehicle, the accident scene and the other vehicle involved, if possible. Do not assume that the insurance company will get their own photographs. Many times, the adverse insurance company will in fact take photographs but they will be calculated to show the damage in ways that are not helpful should the case not be settled.
Tip: Always take your own photographs showing the scene, damage to your vehicle especially when the damage is severe. If your injuries can be shown with a photo, always photograph the injuries. A picture is worth 1000 words.
The burden of proof on lost wages falls upon those seeking to be repaid for their losses. If you have a job and are paid a salary, documenting your lost wages can be as simple as having your work fill out a form indicating how much you are paid and how much time you lost because of the accident. It is important that you do not stretch with respect to your medical damages or your lost wages but present an accurate and fair depiction to the adjuster.
Tip: Ask your boss to fill out a form documenting your lost wages for submission to the insurance company.
NEGOTIATION WITH THE ADJUSTERAs set forth above, insurance companies generally do not treat personal injury victims who are not represented by counsel the same way that they would as those with an attorney. The reasoning is that the individual has no leverage because they are not able to litigate a case successfully against an experienced insurance defense attorney. Do not assume that the insurance company will pay based upon the cost of litigation because many have gone to in-house counsel to represent their insured. These attorneys are paid a salary and not by the hour.
Expect lowball offers
Almost universally, persons who are handling their own personal injury case are shocked at the first offer they received from the insurance company. The lowball offer is the rule and not the exception these days. That does not mean that the insurance company will not come up from their initial offer, but they use the lowball as a method of reducing expectations from the claimant.
Tip: Be prepared with counteroffers based upon factual information such as objective findings in the medical records and documented lost wages. If you have had more sophisticated testing such as a CT scan or a MRI, if the findings show abnormalities that are due to the accident, these should be pointed out repeatedly to the adjuster.
If there is a hospital or other lien or subrogation interest that must be paid back out of the settlement, be prepared to negotiate the payback directly with the hospital and/or health insurance company as part of the overall settlement. Often, your net in your pocket can be substantially increased by your negotiation with lien-holders or subrogation interests. Do not expect the insurance company to pay you directly and hope you pay the hospital or other subrogation interest.
If part of your medical expenses have been paid by Medicare or Medicaid, you must inform them of the settlement discussions and take appropriate steps to pay them back and deal with future medical if any,
Tip: If Medicare or Medicaid has paid any part of your bills from the accident, start discussions with them as soon as possible.
Tip: When you are getting close to a settlement with the adjuster, start negotiating with the other lien-holders about reducing the payback they require.
SOME GENERAL CONSIDERATIONSSOME GENERAL CONSIDERATIONS
The more serious your injury the more likely it is that you will need to retain an attorney to help you. Likewise, the less serious your injuries the more likely it is that you will be able to handle the case on your own. Cases that involve substantial liens, or medical payback, almost always require an attorney to negotiate in order for the victim to net proceeds in her pocket. This is particularly true when the available insurance is limited.
If you are still being treated for your injuries, and there is no issue regarding statute of limitations, it is generally better not to initiate settlement discussions until you have all of your medical bills in hand. Likewise, as soon as you been released from the doctors it is important that you take steps to obtain your medical records and or allow the insurance company to obtain your medical records directly.
You should have a firm total of the amount of your allowable medical expenses as well as your lost wages or earning capacity prior to negotiating with the adjuster. If you do not know the amount of your medical expenses, it will be extremely difficult for you to negotiate anything properly.
Most adjusters will tell you that they must take a recorded statement from you in order to consider your claim. We recommend that you do not give written or recorded statements without talking to an attorney.
Tip: If you do give a statement, make sure you are factually accurate and that you do not guess. If they take a statement from you shortly after the crash and you're not aware of all of your injuries, make sure you appropriately qualify your answer in that regard.
Opinions of others
Each personal injury claim will be valued based upon many factors including, liability, damages and available insurance coverage. Further, changes in the law in the state where the accident occurred can have a big impact on value. Friends, neighbors and family members who are not attorneys or insurance adjusters should not be listened to when you are valuing your own claim. However, there are very good sources of information regarding claims that are available from jury reporting services that will give an impartial view as to the value of a specific case. One of the most important reasons for hiring a personal injury attorney is their knowledge of the value of the case. In Texas, cases that occurred more than seven years ago are not relevant to compare with present day claims as Texas has adopted fairly radical tort reform which has had a huge impact on every personal injury claim.
IF YOU NEED A LAWYERUsually the sooner you hire in a personal injury attorney the better off you will be. Many people make the mistake of believing that can handle personal injury case themselves only to realize that their way over their head once money gets discussed. Unfortunately, many people have done serious damage to their case that time in trying to handle it by themselves. If you have injuries that are going to be long-lasting and those instances where the medical bills are substantial, you almost always are going to need an experienced attorney to help you.
Do your research
You should always research personal injury attorneys before signing any paperwork hiring them to help you with the case. After this sign the paperwork, it is too late to do your due diligence and learn about the attorney and their abilities. Be wary of some ratings as they may not accurately reflect the ability of the attorney in question. Generally, the State Bar will have a website that will allow you to research an attorney for grievances. You can also Google the attorney or law firm to see if any former clients have sued them claiming malpractice.
Hire an expert attorney, one who has substantial experience with the specific type of accident that you have. If you are injured because of a dangerous product, look for an attorney who has a reputation as a product liability litigator. If you are injured by an 18 wheeler, look for an attorney who handles a large portion of commercial vehicle accidents to help you. Attorneys have niche practices and is always better to hire a specialist.