Pain & Suffering Amount - Help!

Posted: Thu Sep 22, 2011 11:27 pm Post Subject:

No one can really answer that question for you. And most of us here would tell you not to go looking for an attorney until you have come to an impasse in your dealings with the insurance company. Or in the event you need to file a civil suit -- because a failure to file with the correct words or failure to state a cause of action can get your case tossed out, and if it's now beyond the statute of limitations, you would be totally out of luck, legally, unable to file a new suit.

So here are some questions to consider:

Did you have lost wages? How were your medical bills paid? Have they covered all of the other expenses to your satisfaction? Aside from the minor nerve damage (which might repair itself over time, or not), do you have any permanent disfigurements, loss of range of motion, or permanent disabilities? Aside from the regular icings of the knee, what impairments do you have?

When it comes to general damages -- the pain and suffering stuff -- it's a judgment call on the part of the insurance company . . . just as it is when in the hands of a jury. If you have no permanent impairments or disfigurements, this is not likely to be a high value matter (but a plaintiff's attorney could attempt to blow things way out of proportion in order to justify his 30%-40% fee.

You don't have to accept a settlement you do not believe is fair, but you also have to be mindful of the statute of limitations for filing a legal claim via a civil suit or a demand tor "alternative dispute resolution".

Some states have a 1 year SOL, others 2 or 3 years, and a few have SOLs up to 10 years. If you fail to file a legal action within the SOL, then you may be "S-O-L" as a result.

In lieu of a civil suit, you can opt to take your matter to alternative dispute resolution -- mediation or arbitration. It's far less costly, faster, and somewhat less adversarial, and the normal rules of evidence do not always apply -- the arbitrator is not strictly bound by the law when making a decision.

But the mediator or arbitrator will usually have special knowledge of the relevant law surrounding the matter -- you and the insurance company each choose a person, or several, and look over the selections and come to an agreement as to which one will hear your matter. Claims over a certain threshold (like $25,000) are usually heard by a panel of three arbitrators instead of only one (and a vote of 2-1 will decide the matter one way or the other).

If you can get The Hartford to agree to take the matter to arbitration without having to file the matter on your own, they may pay the full cost (usually about $300-$500) to open an arbitration, plus the expense of the arbitrator at the necessary meetings (many arbitrations require only one meeting of a few hours, unless there is a lot of testimony to be presented, so that only adds another few hundred dollars -- $500 to $1000 -- to the total). Or you will have to split the expense with them. Either way, they save thousands in additional legal fees that would accompany a civil trial.

You can represent yourself, or you can hire legal counsel. Generally, each side in an arbitration will cover its own legal expenses, rather than demanding the other side pay them. But you can always petition to have yours paid by the insurance company, since they were the one who forced you to take action to get your claim off the back burner.

If you go it alone, you will need to be able to cite legal precedents for your claim, which may mean some hours in the law library doing research. But you shouldn't feel intimidated by the process. Just get all your ducks in a row -- receipts, medical records, physician's statement, etc. -- in order to present a coherent case and reason for your demand. You will be required to come up with the amount you believe is fair and reasonable, and explain how your came up with the numbers.

Hope this helps.

Posted: Fri Sep 23, 2011 05:42 pm Post Subject: Thanks for the reply!

The Hartford has paid for everything so far, rental, repairs, medical (will be paid upon/in addition to settlement). The orthopedic surgeon I saw said it could take up to FIVE years to resolve (WA St SOL is 3 yrs). The patellofemoral syndrome also may or may not be permanent. My knee is in pain EVERY day, and hasn't changed or resolved since the accident (I could barely walk for several days becuase of both knees at the time). It's constantly swollen, constantly numb in one spot and on a scale of 1-10, a 5 every day, some days 7-8. It has impacted my physical activity greatly - I went from going to the gym and a personal trainer to barely being able to walk a mile w/out my knee getting worse.

So with two diagnosis on my knee, both of which may or may not be permanent over time, the Hartford said they won't include anything that may or may not be in the future; They said they only base their settlement offers on what they believe a jury would award should this go to trial.

Anyway, I could go on and on :-) I don't want to be greedy, I just want to be fair and I honestly don't believe $7,000 for over a year of no change is fair. But, with that said, what is fair?

An arbitration might be a good idea and thanks for that suggestion.

Thanks again for replying. I really appreciate any thoughts on this.

Posted: Fri Sep 23, 2011 06:13 pm Post Subject:

the Hartford said they won't include anything that may or may not be in the future; They said they only base their settlement offers on what they believe a jury would award should this go to trial.

Posted: Fri Sep 23, 2011 06:14 pm Post Subject:

I've seen quite few claimants settle without attorneys. Most averaged around 4-5 times medical bills. 15K might be a reasonable place to start the negotiations.

Sickening thing about the attorneys is that's all they do...negotiate. Maybe 2-3% of their cases ever go to trial.

Posted: Fri Sep 23, 2011 08:03 pm Post Subject:

Thanks so much, again! I appreciate the input greatly. I actually have done all of that already w/the medical records and all of the diagnosis outlining the impact each one has had and continues to have if it hasn't resolved yet, and I found similar court cases w/just the patellofemoral syndrome from an MVA diagnosis. Of the three I cited they avereaged $37,000. I know this is a negotiating game, I just don't want to be greedy or totally off in what is fair, which is why I was seeking opinions on what is fair.

Since sending the above info and the letter I got from the dealership about the diminished value, I have not heard a reply; I was told a week and a half ago that I would hear back in couple of days. But, I am being patient :-)

They would not tell me what the policy limits are, but rather that I was no where near them in my request.

Thanks everyone!

Posted: Fri Sep 23, 2011 09:10 pm Post Subject:

Something to keep in mind is that the adjuster is looking at some papers... that is all. After looking at (most of) them, the adjuster is then writing down some numbers (treatment duration, cost of visits, etc). There is no "substance" to this data. It's up to you to paint a picture of everything that you went through. You want to paint a picture of what it's going to looks like to a jury in court. But you also need to remain objective. This is why an attorney can do a good job. They can paint that picture but they are still able to treat it like a negotiation.

Posted: Fri Sep 23, 2011 10:35 pm Post Subject:

tcope and I are both reluctant to steer people to attorneys too soon in the claims process. If you can't get The Hartford off the pot in the next few weeks, then you may find your case will progress more rapidly if you get legal counsel involved.

You could pay an attorney a couple of hundred dollars to write a letter on your behalf without obligating you to giving up the 30%-40% fee. But the proverbial "lawyer letter" won't necessarily get the job done. If it doesn't, then you'll have to bite the bullet and hire a bulldog of an attorney to go after the insurance money, in exchange for that hefty cut of the recovery.