NEGOTIATING A FULL AND FAIR SETTLEMENT FOR A PERSONAL INJURY
Aug. 28, 2019
If you have been injured by the negligent or reckless actions of another person or party, you may be wondering how you are going to be compensated for your losses. Unfortunately, this is not usually a simple and straightforward process. It is a very seldom occurrence that the party responsible will freely admit fault and write a check to cover all the damages.
Most often, you will be seeking compensation from the other party’s insurance company. This means dealing with an insurance claims adjuster who is assigned to your case. Insurance companies are not in the business of losing money, and as such, their goal is to pay out as little as possible for your injuries.
Obtaining full and fair compensation from the insurance company will involve a negotiation, and the first thing to keep in mind is that the insurance adjuster is a trained negotiator. Adjusters handle claims for a living, and they have extensive experience dealing with claimants. And since this is an adversarial process, you can expect the adjuster to employ various negotiating tactics in an attempt to gain an advantage.
Right from the outset, you will most likely be contacted by the adjuster asking how you are doing and reassuring you that everything is going to be okay. This tactic is designed to give you the impression that the adjuster is “on your side” so you will let your guard down and maybe say something that the insurance company can use against you later on.
Negotiating Directly with the Insurance Company
Negotiating a full and fair settlement for a personal injury claim is a process that can take as little as a few days up to several months or longer, depending on the circumstances of the case. Many times, insurance companies present a quick settlement offer in hopes of closing out the claim.
In general, it is never in your best interests to accept the first offer they give you, because it is usually for far less than your claim is really worth. One possible exception may be if you sustained minor injuries, you have already been fully treated for your injuries, and you are satisfied with the offer they give you. If your injuries are moderate to severe, however, then it is better to politely declined their offer until you know the full extent (of your injuries) and the total of your compensable losses.
Once you have reached maximum medical improvement (MMI), you can calculate your losses and present a demand letter to the insurance company. Be sure to include both economic and non-economic losses. Economic losses are those that are directly quantifiable, such as medical bills, lost earnings, and loss of future earning capacity. Non-economic losses are intangible and more difficult to assign a dollar figure to. Examples include pain and suffering, emotional distress, diminished quality of life, and loss of consortium.
Once you prepare and submit your demand letter, there will likely be a series of back and forth negotiations. The insurance company will most likely counter your initial demand and cite various reasons why they believe your claim is not worth what you say it is. They may even try to use things you have said or done to deny the claim altogether and not pay you anything.
The latter scenario is more likely to happen in a state like Virginia, where they apply the “contributory negligence” legal standard. Under contributory negligence, an injured party can be barred from recovering damages if they are found to have “contributed” in any way to the underlying accident or incident, even 1%. For this reason, you must be very careful to avoid any potential pitfalls during the settlement negotiation process.
If all goes well, you should eventually be able to arrive at a settlement amount that you and the insurance company can live with. Throughout this process, it is important to be patient and be willing to push back on the assertions made by the insurance company. You must also be able to back up your claims and justify the amount you are asking for.
Retaining a Personal Injury Lawyer to help with Negotiations
Unless you are an experienced negotiator and you are familiar with the injury claims process, you will benefit from the assistance of a skilled personal injury attorney. Your attorney can handle the entire negotiation process for you, and they can often secure a much higher settlement than an injured person can on their own.
Here are just a few of the ways your lawyer can help with negotiating a full and fair settlement:
Advice and Counsel: Your lawyer will advise you on how to best deal with the insurance company, what statements to provide, what information to release, medical professionals you should see, limiting social media activity, and many other areas.
Proper Claim Valuation: Based on a thorough investigation of the facts and evidence of the case and with the assistance of expert witnesses (when necessary), your lawyer will be able to properly value your claim based on other cases like yours.
Strong Negotiation: Your attorney will be able to present the strongest possible claim to the insurance adjuster and optimize your chances of receiving maximum compensation.
Claim Denial Assistance: If your claim has been wrongly denied by the insurance company, your lawyer can fight this denial for you and help you recover the compensation you deserve.
Threat of Litigation: Most personal injury claims are settled out of court. However, if the insurance company is not willing to negotiate in good faith, your lawyer will be ready and able to pursue full damages through litigation. Many times, the credible threat of a lawsuit is enough to bring the other side back to the table to work out a reasonable settlement.