One of the first questions an accident victim asks a San Jose personal injury lawyer is: How much is my case worth? If the question is asked at the first meeting with the lawyer, the only honest answer is: I don’t know.
The settlement value of a personal injury case depends upon several factors. Until full information is available, the best any lawyer can do is to suggest a minimum amount or a range that seems reasonable. As more facts become available, however, that estimate will likely be revised.
Here are some things that experienced San Jose personal injury attorneys consider when determining the settlement value of an injury claim.
California law requires an accident victim’s compensation to be reduced in proportion to the accident victim’s responsibility for the accident. For example, suppose the accident victim entered an uncontrolled intersection without slowing down and didn’t notice that a car was coming from the left. If the accident victim is T-boned, most of the fault rests with the other driver, because the accident victim had the right of way. But the accident victim was also negligent, and is therefore partially at fault, because the accident victim failed to slow down and anticipate that the other driver might not yield.
In that example, the driver who failed to yield might be 80% at fault and the injury victim might be 20% at fault. If the injury victim’s insurance claim has a value of $20,000 without regard to fault, that claim is reduced by 20% to account for the victim’s negligence, giving the claim a final value of $16,000.
Economic losses are the easiest factor to measure. Those losses generally consist of medical expenses and wage loss.
Medical expenses include the accident victim’s out-of-pocket costs (expenses not paid by insurance) and a projection of future medical expenses (such as surgery that will likely be needed a few years in the future to replace a damaged knee joint). But injury victims usually have an obligation to repay their health insurance companies for medical expenses that the insurer paid as a result of the accident, so the settlement must also recover those costs.
Wage loss includes earnings that were not paid because the injury victim could not work while recovering from the accident. Even if the injury victim used vacation pay to cover the time away from work, those replacement wages can usually be included in the settlement.
The loss of future earning capacity is also factored into the settlement when a permanent or long-term injury will prevent the accident victim from resuming full-time employment at the victim’s former occupation. The cost of vocational rehabilitation should also be included if the victim will need job training before pursuing a new career.
When an injury is catastrophic, the cost of coping with the injury is also a factor. Those costs might cover widening doorways or adding a ramp to accommodate a wheelchair, hiring a caretaker to help with daily activities, or room and board at an assisted living facility.
Nature and Extent of Injury
Serious injuries naturally result in larger settlements and verdicts than injuries that resolve quickly. Most car accident injuries produce symptoms that resolve in a few months. The injury victim is entitled to compensation for pain and suffering in addition to economic losses, but an accident victim who experiences four to six months of neck or back pain will obviously receive a smaller settlement than a car accident victim who has experienced nerve damage or some other painful condition that will probably last a lifetime.
The largest settlements involve catastrophic injuries that permanently reduce an accident victim’s quality of life. Limb amputations, paralysis, and brain damage are examples of catastrophic injuries.
Fortunately, most injuries are not catastrophic, but many injuries produce significant suffering and mental anguish, even if the symptoms are not expected to be permanent. Where an injury falls along the continuum from minor to catastrophic is an important factor that determines settlement value.
Compliance with Medical Treatment
Injury victims maximize the settlement value of their insurance claims when they follow a doctor’s advice. That means keeping follow-up appointments, obtaining consultations from specialists, and completing a course of physical therapy if one is recommended.
People who live busy lives often prioritize work, family, or other responsibilities rather than taking care of their injuries. They miss doctor’s appointments and never get around to rescheduling. They stop going to physical therapy because it is time-consuming and painful. They may decide it is easier to live with a nagging injury than to obtain the treatment needed to hasten recovery.
Unfortunately, when patients stop seeing their health care providers, the providers assume that the patient is cured and close the patient’s file. More importantly, insurance claims adjusters (and possibly juries) assume that the patient stopped receiving treatment because the patient no longer had symptoms of the injury.
When it comes time to settle the case and a patient says “I still have pain,” the personal injury lawyer will report that fact to the insurance adjuster, but the adjuster will assume that the patient is malingering. And without medical records to support the patient’s continuing efforts to treat the pain, the adjuster will be unwilling to pay full compensation for the injury.
Personal injury victims owe it to themselves to take care of their health. That means cooperating with treatment providers and following a doctor’s advice. Following through on recommended medical care also allows injury victims to maximize the settlement value of their cases.
Unfortunately, a real-world factor that determines how much a case is worth is often the amount of insurance that is available. A driver who carries California’s minimum bodily injury coverage of $15,000 for one injury victim may not be in a position to contribute to the settlement. If an accident victim’s insurance claim has a value of $50,000 but there is only $15,000 in insurance coverage available, the accident victim may have no realistic choice other than accepting $15,000 to settle the claim.
Personal injury lawyers in San Jose always look for other sources of insurance coverage when bodily injury coverage is inadequate, but sometimes no other insurance is available. We recommend that drivers carry as much uninsured and underinsured coverage as they can afford, so that compensation will be available if they are injured by an underinsured driver.
Other factors, such as whether the drivers involved in the accident are likable and the skill of the personal injury lawyer also affect settlement values. Having an experienced San Jose personal injury attorney review the case is the best way to determine how much a personal injury case is worth.