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EVALUATING THE VALUE OF YOUR CLAIM
EVALUATING THE VALUE OF YOUR CLAIM
You may have heard that insurance companies use a mathematical formula to figure out how much compensation should be paid to someone for accident injuries. The formula doesn't actually determine how much compensation someone receives. It is just a device insurance adjusters use to begin the process of figuring out how much a claim is worth. The final depends on several other factors.
In general, a person who is liable for an accident--and therefore his or her liability insurance company--must compensate an injured person for:
- Medical care and related expenses.
- Income lost because of the accident, because of time spent unable to work or undergoing treatment for injuries.
- Pain and other physical suffering.
- Permanent physical disability or disfigurement.
- Loss of family, social and educational experiences, including missed school or training, vacation or recreation, or a special event.
- Emotional damages, such as stress, embarrassment, depression, strains on family relationships or interference with sexual relations.
- Damaged property, which occurs most frequently in automobile accidents.
Figuring out how much your injuries are worth is probably the most important part of any accident claim. And it is the part of a claim about which it is most difficult to generalize.
The Formula
It is usually simple to add up the money spent and money lost, but there is no precise way to put a dollar figure on pain and suffering or on missed experiences and lost opportunities. That's where the insurance companies' damages formula comes in.
At the beginning of negotiations on a claim, an insurance adjuster adds up the total medical expenses related to the injury. These expenses are referred to as "medical special damages" or simply "specials." That's the base figure the insurance adjuster uses to begin figuring out how much to compensate the injured person for pain, suffering, other non-monetary losses, which are called "general" damages.
The adjuster multiplies the amount of special damages by 1.5 or 2 when the injuries are relatively minor, and up to 5--and in a few cases, as high as 10--when the injuries are particularly painful, serious or long-lasting. The adjuster then adds on any income lost as a result of the injuries.
That's all there is to the formula. The total--medical specials multiplied by a number between 1.5 and 5, then added to lost income--is the number from which negotiations begin.
1.5 to 5, Guesswork
Several things determine how large a "multiplier"--the number usually between 1.5 and 5--the insurance adjuster applies to the special damages in your claim.
- The more painful the injury, the higher the multiplier.
- The more invasive and longer-lasting the medical treatment, the higher the multiplier.
- The more obvious the medical evidence of the injury, the higher the multiplier.
- The longer the recovery period, the higher the multiplier.
- The more serious and visible any permanent effect of the injury, the higher the multiplier.
he multiplier also depends on the type of medical treatment given. Treatment that doesn't come directly from physicians--even if they recommend or order it--isn't valued as highly. That means physical therapy, chiropractic treatment and osteopathy are generally not given as much weight when the insurance adjuster decides on a multiplier. Treatments such as acupressure, acupuncture and massage therapy are given little or no weight at all.
The More Serious the Injuries the Higher the Multiplier
In some claims, certain factors line up so overwhelmingly for the injured person that the top multiplier moves up to six or seven times special damages--even as high as ten times those damages. However, only a small percentage of claims justify a higher number. To realistically consider a multiplier of more than five, you must have had a serious injury, and most, if not all, of the following factors must exist:
- your injuries are unquestionably observed or detected by medical examination
- your injuries are obviously painful and dramatic--a fracture, or a wound, tear or displacement that requires surgical treatment or that cannot be completely repaired
- diagnosis and treatment come primarily from physicians and hospitals
- recovery is prolonged--requiring six months or more
- you suffer some permanent consequence--pain, immobility, weakness, discomfort, scarring--which is medically documented, and
- your physicians clearly indicate that you will have recurring, degenerative or future problems as a result of the injuries. If almost all of these factors are present in your claim, you may be justified in seeking more than five times your medical specials.
Comparative Negligence or How Much Were You at Fault
Once you know how insurance companies use the damages formula to start negotiating, you are more than half-way home to figuring out the total compensation value of your claim.
Basically, the other elements in deciding how much your claim is worth boil down to how the insurance company thinks a jury would decide your claim if it wound up in court. And in measuring its chances in court, the insurance company has to figure in the cost of putting up a legal fight, on top of what a jury might award you, compared with the amount your claim could be settled for without going to court.
The extent each person is at fault is the most important factor affecting how much the insurance company is likely to pay. The damages formula tells you how much your injuries might be worth, but only after you figure in the question of fault do you know how much your claim is actually worth--that is, how much an insurance company will pay you.
Determining fault for an accident is not an exact science. But in most claims, both you and the insurance adjuster will at least have a good idea whether the insured person was entirely at fault, you were a little at fault or you were a lot at fault. And whatever that rough percentage of your comparative fault might be--10%, 50%, 75%--is the amount by which the damages formula total will be reduced to arrive at a final figure.
VOLUME 1 ISSUE 1
HELPING YOUR ATTORNEY GET YOU A FAIR SETTLEMENT FOR YOUR INJURIES
Immediately after being injured in an accident, you are probably angry, in pain and maybe a little depressed. That is not the best frame of mind in which to get organized for an insurance claim. But taking some of the following simple steps in the first few days after your accident can help make the entire claim process easier on you--and increase your chances of receiving all the compensation to which you are entitled.
Write everything down. Jot down things about the accident as soon as possible after it happens, including details of your injuries and their effect on your daily life. These notes can be very useful two or six or ten months later, when you put together all the important facts into a final demand for compensation. Having notes to remind you of all the details of what happened, and what you went through, is far easier and far more accurate than relying on your memory.
Get into the habit of taking notes on anything you think might possibly affect your claim and carry it through the entire claims process. Anytime you remember something you had not thought of before--while you're in the shower, just before you fall asleep, as you're biting into a pastry--write it down and put it with your other notes.
There are several kinds of notes you should keep.
Accident Reports
As soon as your head is clear enough, jot down everything you can remember about how the accident happened, beginning with what you were doing and where you were going, the people you were with, the time and weather. Include every detail of what you saw and heard and felt--twists, blows and shocks to your body immediately before, during and right after the accident. Also include anything you remember hearing anyone--a person involved in the accident or a witness--say about the accident.
Medical Records & Your Own Notes
In the first days following your accident, make daily notes of all pains and discomfort your injuries cause. You may suffer pain, discomfort, anxiety, loss of sleep or other problems which are not as visible or serious as another injury but for which you should demand additional compensation. If you don't make specific note of them immediately, you may not remember exactly what to include in your demand for settlement weeks or months later. Also, taking notes will make it easier for you later to describe to an insurance company how much and what kind of pain and discomfort you were in.
And writing down your different injuries will help you remember to report them to a doctor or other medical provider when you receive treatment. A relatively small bump on the head or snap of the neck, for example, may not seem worth mentioning, but it might help both the doctor and the insurance company understand why a bad back pain developed two or three days, or several weeks, after the accident. Also, by telling the doctor or other medical provider about all of your injuries, those injuries become part of your medical records that will provide evidence later that such injuries were caused by the accident.
Expenses, Lost Pay, Travel, Medical, Rentals
You may be entitled to compensation for economic loss and for family, social, educational or other losses, as well as for pain and suffering. But you will need good documentation. Begin making notes immediately after the accident about anything you have lost because of the accident and your injuries: work hours, job opportunities, meetings, classes, events, family or social gatherings, vacation or anything else which would have benefited you or which you would have enjoyed but were unable to do because of the accident.
Conversations - Write them down
Make written notes of the date, time, people involved and contents of every conversation you have about your accident or your claim. In-person or telephone conversations worth noting may include those with any witness, adjuster or other insurance representative, or with medical personnel.
Confirm Conversations
In the course of your claim, you may be told or promised something or given some information that you want to make sure is not later denied or changed. Immediately after the conversation, send a letter confirming what the person told you. The letter does not have to be elaborate, just a brief restatement of what was said. Make a copy for your own files before you send it.
Evidence - The Be all and End All of Winning
The first few days immediately following an accident are often the most important for finding and preserving evidence of what happened--and documenting your injuries.
Physical evidence
Who was at fault for an accident is sometimes shown by a piece of "physical" evidence--something you can see or touch, as opposed to a description of what happened. Examples include a worn or broken stair which caused a fall; the dent in a car showing where it was hit; an overhanging branch that blocked visibility on a bike path. Also, physical evidence can help prove the extent of an injury: damage to the car can demonstrate how hard a collision was; and torn or bloodied clothing can show your physical injuries very dramatically.
Moreover, physical evidence that is not preserved or photographed in the first few days following an accident can get lost, modified by time or weather, destroyed or repaired. So, any physical evidence you have--your damaged car or bike, your damaged clothing, a defective product--should be preserved exactly as it was at the accident. You can later show it to an insurance company as proof of what happened.
Photographs
If you do not have a piece of physical evidence, or for any reason cannot preserve it, the next best option is to photograph it. Regular photos are better than Polaroids. Not only do they usually show greater detail and more accurate light conditions, but you will be able to give an insurance company prints while holding onto the negatives. Take a number of photos from different angles so that you can later pick out the ones that show most clearly whatever it is you want to highlight to the insurance company.
Take the photos as soon as possible so that they will accurately represent the condition of the evidence immediately after the accident. To establish the date the photos were taken, ask a friend to both watch you take the pictures and to write a short note stating that he or she observed you taking the pictures on that date. Also, get the film developed immediately and make sure the photo shop indicates the date on the back of the prints, or at least on your receipt.
Returning to the scene
If an accident occurred somewhere other than in your home, return to the scene as soon as possible to locate any evidence and photograph any conditions you believe may have caused or contributed to the accident. You may be amazed to find something you were not aware of when the accident occurred but which may help explain what happened: a worn or torn spot on which you fell, a traffic light that isn't working. And while looking around, you may also find someone who saw what happened, or who knows of other accidents which have happened in the same spot.
Take photographs of the accident scene from a number of different angles--particularly your view of things right before the accident--to keep a good picture of it in your mind and to give to the insurance company later on to indicate how well prepared you are to get the settlement you deserve. Photograph the scene at the same time of day as your accident occurred, and for vehicle accidents, the same day of the week, to show the appropriate amount of traffic.
Witnesses
A witness to an accident can be immensely valuable to you in making your case to an insurance company. Witnesses may be able to describe things in an accident that confirm what you believe happened, backing up your story. And they may provide you with information you were not aware of but which shows how the other person was at fault. Even a witness who did not actually see the accident may have seen you soon after you were injured and can confirm that you were in pain or discomfort. Or, a witness may have heard a statement made by another person involved in the accident indicating that someone other than you was at fault.
However, time is of the essence. If witnesses are not contacted and their information confirmed fairly soon after the accident, what they have to say may be lost. People's memories fade quickly, and soon their recollections may become so fuzzy that they are no longer useful. Also, a witness might no longer be around if you wait too long; people move frequently.
Seek Medical Advice
The best ways to preserve evidence of your injuries are by promptly reporting all of them to a doctor or other medical provider, and by photographing any visible marks, cuts, bruises or swelling, including any casts, splints, bandages or other devices. Without an early medical record of all your injuries, and photos if possible, it will be more difficult later to convince an insurance company that you were injured in the ways and to the degree you claim you were. Visible injuries heal and will not look as serious later, and failing to seek immediate treatment can lead an insurance company to believe that your injuries were not so serious, or even that you invented or exaggerated them after the accident.
***NO ATTORNEY/CLIENT RELATIONSHIP IS DEEMED CREATED BETWEEN THE READER AND THE PROVIDER OF THE CONTENTS OF THIS PAGE - IF YOU NEED LEGAL ADVICE - CONSULT AN ATTORNEY IN PERSON***
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