car accidents, legal advice? funny story!

lendaddy · 08-06-2001, 09:16 AM

I am sure this will get yanked into the black hole that is the OT board very soon and that is to be expected and understood. I tried to make it obvious that it was OT in the subject so please forgive me if I wasted anyones time.
OK, here is the deal. I read the post about the no stop sign thing and agree with most of the posts against law suits. However I'll give you my deal here and I honestly want to know what you think.
About 20 months ago I was coming home from my brother in laws anniversary party and was asked to pick up some beer and wine to bring back to their place. I was with my wife and she went into the store first and I followed. I got about five steps inside the glass double doors when I heard something behind me only to see an '81 Cadillac Eldorado come crashing thru the doors I just came thru and mow me down. I was under the car till it stopped at which time I slid across the freshly bleached floor( ah yes bleach in a couple dozen fresh wounds) and took my wife out like a hanging ten pin. My ACL was snapped as well as other knee damage, I couldn't get up and my wife and her cousin helped me to the counter. At this time a very drunk young man climbed out of the passenger seat and started to push the driver over into his now vacated seat(to claim neither was driving) My wifes cousin ran over to stop this and the lad got violent syaing he was gonna get his gun from the trunk and proceeded to do so at which time the store owners threatened using their guns. When her cousin informed me of this they quickly got me to the car and we left( I reported everything moments later to the police)
I had to have reconstructive knee surgury etc.(covered by my auto ins) I was in splints crutches rehab, etc for like 9 months. I retained a lawyer to recover from the slob who did this( oh yea I forgot to mention the driver blew a .23) only to find out that his caddie was his prize possession. Now his insurance want's to settle for 18k when his policy limit is 25k I have 100k Underinsured motorist protection but my lawyer says if we don't get the max from his we'll never get any thing from mine. Now my lawyer wants me to take the 18k he says we might lose in court because now I am pretty much back to normal(40 lbs weight gain from living on the couch for nine months) and have little to no long term damages. I don't know, anyone have any opinions on this one? Am I a greedy sob? All I can say is if I were to do this to someone I would expect to get screwed to the wall and deserve it!

9eleven · 08-06-2001, 09:28 AM

How much were your medical expenses?
3 times your medical expenses is typical for "pain and suffering." Not a hard rule, but typical.
In your case, given the egregious nature of what the insured did, and the pain and rehab involved with knee and ACL surgery, you should get more. If you are not getting near 3x your medical expenses, you are not getting enough. I don't think his insurance company wants to defend the insured and his actions in court, I would stand firm on a demand for the policy limit.
$18K seems very low. What is the 18K for? In addition to your medical bills? Pain and suffering? Lost wages? What?

layzee · layzee's Garage

Not that I know anything about the US legal system but what happened to you pretty terrible, and I don't think $18k really compensates.

Good thing that things like that don't happen here in this leafy London 'burb.

Good luck with the case.

------------------
Phil Garner
phil.garner@ukonline.co.uk
'72 911E Sporto

lendaddy · 08-06-2001, 09:34 AM

yes, the 18k was soley for pain and suffering I guess. His insurance company has not spent a dime on this as of yet. My medical bills were impressive but I don't have a figure right now(I think around 25k but I'm not sure)

9eleven · 08-06-2001, 09:38 AM

If your meds were $25,000, there is no way that his insurance company is going to let the case go to trial, esp. given the facts of the case. They will settle for the $25,000 policy limit. They are just bluffing you and your lawyer. Your lawyer needs some conejos.
That is just my opinion. Your lawyer may know things that I don't know.

[This message has been edited by 9eleven (edited 08-06-2001).]

lendaddy · 08-06-2001, 09:42 AM

Thats kinda what I thought. I don't know if you are a lawyer or if you play one on TV but this is a rather large firm and I think they just want the quick easy money. I am considering calling him today and initiating the actual law suit. I don't know, I've never had to do anything like this before. Does my lawyer have to do what I ask? Thanks again

9eleven · 08-06-2001, 09:52 AM

No, I am not a lawyer, but common sense tells me that you are on a contingency fee. If that is the case, given the $25K policy limit, common sense also tells me that the law firm naturally wants to just scoop the $18,000 up. That is the bulk of the maximum recovery, for little or no work. It does not make sense for them to start going to trial, and incur all of their time and expense, to recover a maximum additional fee of roughly 33% of the additional $7,000 they may recover.

I don't know if you can force them to go forward or not. It seems like you should be able to. There seems to be a conflict of interest, you want to maximize recovery, and the lawyer wants the quick easy money.

You can always find a lawyer to take the case, if you pay them by the hour. The problem is that you will likely spend the additional $7,000 on legal fees pretty quickly, and may not be able to recover those fees from the insurance company.

JonSeigel · 08-06-2001, 11:03 AM

They will settle. They're just trying to test you. Although I no longer do personal injury work, based on what you've told us, in my opinion, your case is worth in the high five figures and maybe more. At least here, the three times economic damages rule of thumb goes out the window when there is a surgery involved.

I don't know where you are located, but under California "bad faith" law, here's how to handle this. First, make a settlement demand at the $25,000 policy limit. If the insurance company does not accept it, and you go to trial and receive a verdict in excess of $25,000, the insurance company (not the idiot that hit you) is liable for the entire amount, even above the policy limit. This is called "opening up" the policy limits. Based upon what you have told us about the accident and your injuries, they will most likely accept a policy limits demand. If they accept it, then you can make your underinsured (not uninsured) motorist's claim. (Under some policies, you need to get authorization from your insurance company before doing so, or you waive your underinsured motorist's claim) If your lawyer made a demand over $25,000, despite knowing that the driver was virtually asset-less, get a new lawyer. If he has made no demand and the $18k is the insurance company's initial offer and your lawyer wants you to accept it without making a counter for $25k, get a new lawyer. Additionally, in order to open up the policy limits, *you* must make a demand at or below the limit. BTW, when the policy limit is low compared the value of the case at trial, lots of people actually hope that the insurance company rejects a pre-trial demand at or below the limit so there will be unlimited insurance to pay your verdict.

Again, this is just my opinion and this is how it would work under California law. Caveat emptor.

P.S. Anyone got a shark icon?

MRM · 08-06-2001, 08:11 PM

Hi Len. Jon makes some good points but we need some more information. What state did the accident happen in and what insurance company are you dealing with? Did the driver get cconvicted of DWI? Did you lose any income while you were out? What other out of pocket expenses did you have, whether covered by other insurance or not. Has the insurance company had you examined by their doctor yet?

I do agree with Jon that the case is worth more than the $18,000 they are offering. Notice how $18,000 is evenly divisible by three?

Jon's bad faith analysis is right on. If you offer to settle for policy limits, the insurance company refuses and you get a higher verdict, you may have the right to recover the entire verdict from the insurance company. This is an extremely strong incentive for the company to settle at or very near policy limits.

You need to check to see if one of the health insurers has a subrogation interest for your medical bills. If they do, you want to make sure they don't get any of your settlement. You want to know how much "new money" the offer means to you. If there is no subro interest, you are golden: you get to recover the costs of your meds without paying any of it back! The bad guy is responsible for the medical expenses. He pays them to you and you have to pay them to the health insurer, if they have asserted a medical lien. If they haven't, you get to keep it.

Sometimes you can work a deal with an HMO (depending on whose insurance paid the bills) where you can pay the cheaper contract rate (what the HMO actually paid the doctor to perform the work) to satisfy the HMO's subrogation interest, but you can present the entire, non-contract medical bill (what the doctor charges if he doesn;t have to work under the HMO contract) to the jury. You get to keep the difference. I do insurance defense, so I spend my time trying to stop people from getting away with this, but I must admit that it is a thing of beauty (for the injured person) when it does work.

Anyway, that's a long way of saying I think you should stick to the demand for the full policy limits from the bad driver and take your shot at getting the rest from your UIM policy. I have some thoughts on how to maximize that, but you can deal with that next.

Good luck and keep us posted.

MRM · 08-06-2001, 08:14 PM

Len, I almost forgot. Yes, the lawyer works for you and has to do what you say. He can withdraw from the case and assert a lien on your recovery for the work he has done. But he cannot bind you to anything without your permission and you control the lawsuit. The lawyer makes tactical decisions, like which witnesses to call. The client makes the strategic decisions like whether to settle and for how much.

lendaddy · 08-07-2001, 04:42 AM

Wow, you guys know your stuff. I will give you the info you requested. I live in Michigan this is also where the accident happened. His insurance is Allstate. My auto is Citizens(they have already authorized me to settle with Allstate). My lawyer told me that we have new laws here in MI where you have to show that the negligence of the defendant caused you long term damage to your quality of life. Now the problem there is both of MY doctors already said in writing that I am very nearly perfect now, with no long term effects. Just a few more details for ya guys.

JonSeigel · 08-07-2001, 09:01 AM

You could be a victim of tort deform.