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The Explainer: To sue or not to sue; that is the question

  • By Charles Pelkey
  • Published Jan. 13, 2011
  • Updated Jan. 17, 2011 at 8:42 PM EDT

Q. Dear Explainer,
About three months ago, I was hit by a delivery truck turning right across a bike lane in my town.

Fortunately (in a way), I was thrown off my bike. The bad part was that I hit the curb with the side of my head, just below the helmet and then my shoulder and arm. I was knocked out for a bit and when I came to, there were about 10 people around me, some calling 911 on their cell phones. The good part was that if I hadn’t been thrown, I probably would have died.

Not that I saw it, but one of the witnesses told me the driver kept going and dragged my bike for two blocks before he stopped to see what the sound was. He stayed put and when the police came, he said he never even saw me. He got a ticket for careless driving resulting in serious bodily injury. Because he claimed he didn’t see me or know that he’d hit me, they did not ticket him for leaving the scene.

First off, my bike — worth around $2500 or so — was completely trashed. The most noticeable of my initial injuries — a broken arm, two ribs and collarbone — have pretty much healed and, as far as those go, I am mostly okay. My collarbone has a noticeable bump, but everything seems to work okay.

My biggest problem, though, is that even though the doctors said that I had a “slight concussion” at the time, I’ve had headaches, which I’d never experienced before, and I get dizzy spells, which one of my doctors diagnosed as Ménière’s disease. Both are symptoms I had never experienced before.

Within a day after I got out of the hospital, the delivery company’s insurance company started calling me. At first they just offered to pay my medical bills and then later offered to pay for my bike, even though the claims agent said that “$2500 is too much for a bicycle.” I haven’t done anything and my medical bills are pretty much covered by my insurance. I have other bikes, but I would eventually like to get that one replaced.

Anyway, the adjuster has been helpful and supportive and now they are offering a “final settlement” of $20,000. The company’s adjuster says I have “just a few days” to accept or reject the offer and that “the clock is ticking on this one.” I think that’s BS.

I didn’t plan to sue, but I don’t think their offer is enough. Should I just sign and take the money or should I sue? Is it worth all the trouble to sue these guys?
– Randy

A. Dear Randy,
Right away, without having more detail available, I would strongly advise you not to sign the first thing the insurance company puts down in front of you, even if they do call it a “final” offer. Whatever you do, don’t accept what I suspect is really their first offer. I would suggest contacting a lawyer, but even working on your own, you may be able to up the ante by a bit and that may all you’re looking for. If you decide to sue, there are things to consider first.

What follows is a very general summary of what happens in many cases like this, but please, please, please do not rely on this column as formal legal advice. I am not your lawyer, I am not privy to all of the details of your case, and unless you’re in Wyoming, I am not licensed to be your lawyer. Even if you are in Wyoming, I probably would not be in a position to take your case. This is a very general guideline and should be used only as stuff to keep in mind when you do go to a lawyer.

First off, I’m not sure what he means by “the clock is ticking,” but it sure doesn’t apply to the time you have available to you to pursue a personal injury lawsuit. Three months is well within the statute of limitations, the time in which you can file suit. Those limits vary from state to state and can range anywhere from one to six years. Check with a lawyer on that one.

Next, it’s a good thing that the guy was ticketed. It really makes your case that he was at least negligent. Indeed, in many states, there is something known as negligence per se, which pretty much means that if a defendant has violated a safety statute intended to protect people like you and you’ve been injured as a result of that violation, you’ve got most of your case made. In other states — Wyoming included — violation of a safety statute is only a factor for the court to consider.

Either way, though, it puts you in a strong position to negotiate with the insurance carrier before taking the whole thing to court. I would still advise you to seek the assistance and advice of an attorney, but you have to keep in mind that there may be considerable expenses associated with that as you work your way through the process.

No, actually, you are not in good hands

With or without an attorney, the first rule to remember as you do that is that the insurance company is not your friend. The made an offer and want you to believe that is the end of it. It probably is not. The insurer’s representative has one incentive and one incentive only and that’s to minimize costs for his employer. The $20,000 figure is what they hope to pay in order to walk away from this one. Although you don’t mention what they mean by “final offer” and “accept or reject,” it’s pretty clear that they would want you to sign a release that would bar you from taking further action.

To begin, what you probably got from the insurance company was an opening offer and not a final offer. Most insurance companies take claims like this and lump them into general categories. Once your case has been dropped into a particular group — say, one that would note that their client was clearly at fault, and that injuries, but no deaths, resulted and there was some property damage. At that point, the insurer will give the adjuster some latitude in making a settlement offer. Perhaps in this case it would be $20,000 to $25,000 or something along those lines.

By making an offer to you, the insurance company has already acknowledged that you deserve “compensatory damages.” Those are payments designed to make you “whole again.” In other words, money paid to you to bring you as close to the physical and economic condition you were before this bonehead hit you with his truck. Now the question is what those damages are. Don’t accept an offer that would ultimately leave you in dire straits with no further recourse.

You need to make your own assessment of what damages you’ve suffered and are likely to suffer. To do that, you need to compile a complete accounting of the damages you suffered. Of course, the two most obvious are your medical bills (even if they are covered by your own medical insurance) and the damage to your bike. You also need to keep an accounting of any work that you missed as a result of the accident. That includes time covered by sick leave, since that leave time is yours and has an economic value.

Long-term issues?

If that were the end of it, you could probably come up with your own figure and make an honest counteroffer. But you’ve been diagnosed with a potentially chronic problem that very well could be the result of the accident. Did your doctor conclude that the Ménière’s disease could have been caused by that trauma to the head? If so, what are the long-term consequences of the problem? Has the doctor suggested that the issue may only be transient or is it a lifelong condition? Compile answers to those questions, even if the answers are inconclusive. Put together a summary of the chronic problems you have, but don’t limit yourself to what you know now.

Have there been other issues? Neck and back problems can take some time to appear and a long time to resolve. No, I am not talking about making things up or wrapping yourself in a neck brace or showing up to the adjuster’s office in wheelchair, but get a serious checkup and make sure there are no other potential problems lingering out there before you make a counter-offer to the insurance company. Keep in mind that your own medical insurance company may be eligible for its portion of the award, so you may have to share that with them. That’s an issue you need to address with your own attorney, if you have one.

Also, keep in mind that you should be paid for your “pain and suffering,” too. That’s a little tougher to define. But damn, man, you were hit by a truck. That stuff hurts!

With that in mind, you can play a little hardball with the insurer, even if you do it on your own. No, I don’t necessarily mean that you should come back with something outrageous. If they offer $25,000, you probably won’t reach a settlement if you counter with a demand for $1  million. Be reasonable, but, in this case, the definition of “reasonable” is up to you.

If you make a counteroffer be prepared for the possibility that they might just accept it. If so, you’re done. Take the check, get a new bike and put some money away.

But, if they don’t budge or if they come back with their own counteroffer that’s still too low, go ahead and hire a lawyer. It may be time to sue.

So you want to sue?

The insurance company may be prompted to raise its offer once you have an attorney involved. It may be cheaper for them to up the offer than to take the case to court.

A lot of law firms do nothing but insurance defense (plaintiffs’ lawyers say those guys are working for “the dark side”) and a lot of them are really good at it. They also bill accordingly and charge those insurance companies for everything from lawyers’ time to copying and faxing fees that would make Kinko’s blush.

While the insurance company may be paying its lawyers by the hour, you may not be in a position to do that. Most personal injury attorneys offer the option of taking your case on a contingency basis. That means you don’t have to pay the lawyer unless you get a settlement. Because of that, some plaintiffs’ attorneys may not want to touch a case unless the damages are high enough to make it worth their effort.

The lawyer’s cut

Keep in mind that those contingency fees can go as high as 40 percent of your final settlement, if the case goes to court. Many attorneys offer a sliding scale when it comes to contingency fees, starting with a low percentage — or even an hourly fee — if they can resolve the case to your satisfaction with just a few phone calls and letters, and raising the stakes as the case progresses, ultimately topping out at the highest figure if it goes to trial.

Keep in mind that a contingency fee usually only covers the lawyers’ time. The expenses related to the case are taken out of your share. Those, too, can be high. If the thing ends up in court, you may well have to hire expert witnesses to discuss the precise nature of your damages. If a doctor testifies as an expert on the long-term consequences of a trauma-induced Ménière’s disease, his fee will come out of your share. Fancy graphics and PowerPoint presentations, too, get charged to you as expenses. Some lawyers can cover those expenses up front and will bill you later. Others require you to put money into a trust account, from which the lawyer can withdraw case-related expenses as they arise. Be sure to get clear with your lawyer on all of that.

All states require a lawyer to walk you through the fee structure and you will get a pile of paper to sign when you hire a lawyer on a contingency basis. Read everything carefully and ask questions before you sign. It may be obvious, but it’s worth remembering that a fee and representation agreement is a contract and you’re signing a contract with a lawyer … a person well-versed in fine legal art of CYA.

While some view the whole concept of contingency fees as unfair, it’s often a client’s only option if he or she wants to sue. Obviously, the lawyer is taking on something of a risk, in that if the case goes all the way to trial and you lose, the lawyer doesn’t get paid.

A few words of advice here. First, don’t sue for the “principle of the thing.” Yours is not a moral crusade to punish all drivers for all offenses against two-wheeled, human-powered transport. You are seeking to be justly compensated for damages you have suffered. Don’t make it anything more than that.

Second, be prepared to spend a lot of time. The decision to pursue a lawsuit may involve a serious commitment of time. Civil dockets in some states are so full that it may take years before your case is even presented in court. The whole process will seem like it’s dragging on forever.

Third, stay realistic when it comes to settlement offers. Any offer made to you by the other side has to be subject to your approval. Your lawyer cannot, without consulting you and getting your approval, sign off on any offer, no matter how good it looks. Sometimes, after watching a case drag on what seems like forever, a plaintiff can be so frustrated that even a remarkably good offer can seem like a pittance.

Indeed, I have one attorney friend who invested two years into developing a solid case against a defendant. It was so solid that the other side made an amazing offer on the eve of the trial: $2 million. Two million dollars. My friend took the offer to his client and, despite the lawyer’s best efforts to persuade his client to take the money and run, the plaintiff insisted on taking the thing to trial because he knew he could get more and he just wanted “to teach that son of a bitch a lesson.”

Yeah, you guessed it. The jury found for the defendant. The final award was zero, nothing, nada. Well, someone got a lesson.

And that brings me to number four: Juries are unpredictable. No matter how solid a case you think you have, all of the evidence you’ve lived with this whole time may not seem as persuasive to members of the jury as it is to you.

In all, it’s a big investment of time, money and psychic energy to sue. That’s not to say it isn’t worth it. You just have to balance your risks and potential benefits. It’s not an easy decision. Talk to a lawyer and discuss your options.

Good luck and let me know how it goes,
Charles


“The Explainer” is a regular feature on VeloNews.com. If you have a question feel free to send your query toCPelkey@CompetitorGroup.com and we’ll take a stab at answering. Not all letters will be published and some questions may be combined with those of other readers. Please include your full name and hometown.

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