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Overview Of A Personal Injury Lawsuit Part Iii Pre Suit Settlement Process

Once the client reaches what is known as “maximum  medical improvement” – the point at which he or she is not going to get any better from  a medical standpoint – then I sit down and prepare a settlement demand letter to the at-fault party’s insurance company or self-insured entity. Included in that settlement demand is documentation showing the amount of my client’s medical bills, lost wages and any other out-of-pocket expenses. The demand amount always includes anticipated “pain and suffering” damages that might be awarded by the  jury. I include a number based on my experience in these types of cases as to how much a jury is likely to award. Many factors go into an award for pain and suffering and include, but are not limited to, whether the client has a permanent injury, the nature, extent and duration of the client’s pain, and what the injury has taken away from my client’s life such as inability to participate in hobbies, sports, etc.
In addition to damages, a key concern that gets addressed in the settlement demand letter is whether my client is “comparatively negligent” for his or her injuries. For instance, if my client was talking on her cell phone when she slips and falls on spilled olive oil in an aisle at Publix, then I’ve got to concede that she’s partially at-fault for her injuries.
It usually takes between 2-4 weeks for the  insurance claim adjustor to make a counteroffer to the settlement demand. Only in a case where the insurance company’s insured is at risk of a bad faith claim if the policy limits are not offered – for example, in a death case where the at-fault driver only has $10,000.00 in bodily injury coverage – will the insurance adjustor agree to settle for the amount  demanded. More often than not, the adjustor makes an offer substantially less than the demand. When that occurs, and depending on the seriousness of my client’s injuries and the odds (based on my experience) of winning at trial, I can either reject the offer and immediately file suit, or, I can make one or two more attempts to settle at a number slightly lower than our settlement demand but still within a range of what I believe will compensate my client. If the claim adjustor still refuses to pay that amount then suit gets filed.
In my next blog I will discuss the filing of the lawsuit.