I believe I said, somewhere along the line, that I would be willing to settle for less. But, as I understand it, the enemy did not make a counter offer; they apparently just ignored list of demands and that has led to my attorney resorting to litigation. I still harbor hopes that the case never goes to trial; I might accept mediation but not binding arbitration. I would much prefer a counter offer and an out of court settlement.
For the record, my attorney gets 30%, not 33.333333 etc., etc.
Dude, arguing with an asshole like Frank is like wrestling with a pig in mud if you know what I mean…
I don’t understand the “set downside risk.” I know you said you are not that nice, but would you humor me on this one? Please?
Actually, in many cases now in California, the progression is 33 percent pre-trial, 40 percent at trial, and 50 percent post trial.
I was always grateful I was at the other table, with a steady income. 
I’ve often wondered about American practice with costs. We follow the English method of first calculating damages, and then calculating costs as a separate issue. Loser gets to pay winner’s costs for the most part, in theory. But if the plaintiff wins, the “costs” that he can recover from the loser are never as much as he actually paid out to his lawyer. Lawyers charge according to market rates, but a rich guy shouldn’t be allowed to get Rolls Royce lawyering for a crappy little claim and screw the other guy for full freight in costs. So costs are recoverable according to a scale, which turns out to be a lot less than what the winner actually paid his lawyer.
In the US, where lawyers get a percentage, is that percentage built into the damages award? Do you calculate actual loss, and out-of-pockets, then multiply by 2 to allow for 50% costs? Or does the lucky plaintiff just miss out on 50% of what he needs to get by on?
Maximum medical improvement, in theory, is the point at which you will not get any better. In other words, if you tore a bicep, your doctor may tell you that you will never be able to lift more than 80% of what you previously could. Once you hit 80%, you’re at MMI.
In actual practice, MMI is the point at which you stop getting medical care. In Florida, you are entitled to follow up appointments post-MMI but you’ll be responsible for a co-pay.
When you reach MMI, your doctor will assign you an impairment rating (a percentage representing your permanent loss of function, which is determined using a bunch of tables which are called the Florida Impairment Guidelines. The amount of money you get from the insurer in the settlement will largely depend on your impairment rating. 0% (ie., you’re fully healed) means your case is nuisance value. 50% means lots of money. You’re unlikely to have that sort of number for a back injury, though. I’ve only seen one PIR that was above 20% for a single injury, and that was for a woman who lost both hands.
The insurance policy is only written to cover a certain amount of damage/injury cost. Here, the most common figure is $10k property damage and $10k bodily injury per occurrence. That means that if you sue the guy that hit you for $100k, his insurance company will (at most) be paying out $10k; the other driver himself will be on the hook for the remaining $90k. So, if you’re asking for more than the policy limit, there’s absolutely no reason for them not to roll the dice and go to trial.
Can’t speak for the US system, but here in Canada where there are both costs and contingency fees, the answer is that the damage award is based solely on the injury suffered by the plaintiff, and lawyers’ fees are not factored in. If there is an award of costs, that is applied against the amount owing under the contingency fee, but as in your question, costs awards don’t cover all of a lawyer’s fees. The remainder comes from the contingency fee. So, the successful plaintiff represented by a lawyer on a contingency will not personally get the entire award.
As a general rule, attorneys’ fees are not part of the damages calculation. Each party is expected to bear the costs of his or her own representation and they are not won back. In only exceptional cases, when one party is found to have engaged in some kind of litigation abuse, may courts impose sanctions on one side that might include paying for the other party’s costs.
But in my case, the guy who hit me had $500K bodily injury insurance, so we (my attorney and I) are NOT asking for more than the policy limit, but we are asking for the entire policy limit. Privately, I don’t, even in my wildest dreams, expect to recover that amount. But, my ability to perform the work I was performing is pretty well lost; I just can’t handle the required lifting and the hours behind the steering wheel any more. In my mind, I deserve compensation for lost wages and that for the remainder of my life. I am in constant pain, as my surgeon told me I would be, but the degree of that pain varies from day to day. I wasn’t in constant pain prior to the accident, so it seems clear to me that the accident resulted in the pain I now experience. Surely I might expect some compensation for that? And for the pain management medication(s) I will need, presumably for the rest of my life? I sure feel sorry for me, don’t I?
I forgot to add that I am very much enjoying this conversation, even if I’m not hearing exactly what I would like to hear. The conversation has been educational and my ignorance has been fought on several fronts. I hope the conversation might continue for a while longer.
My thanks to all participants.
That’s just it- there’s no reason for the insurer to settle for the full policy limit amount, since that’s more or less all they can lose by allowing the case to go to trial*.
The point of settling cases such as yours is risk limitation. Let’s say you had a pre-existing back injury, so there’s a chance they won’t be found liable for The insurer will happily give you $250k minus whatever medical and indemnity costs they’ve paid out so far, because otherwise they could lose $500k. However, they won’t give you $500k, because if they go to trial and lose, they’ll still only be out $500k.
*Plus their defense costs (which will be much, much less than $500k - say, $50k at the outside)
If that still doesn’t make sense, consider this analogy. I bet you a dollar that Pro Football Team X will beat Pro Football Team Y in the Big Game. We’re watching the game, and at halftime, X is beating Y by three touchdowns. I offer to give you 50 cents right now, regardless of the eventual outcome, hoping to minimize my losses. You take the 50 cents, because you think that a guaranteed 50 cents is better than a potential dollar.
Continued 'cause the edit window was running out…
Now, let’s say we make the bet, and at halftime my team is still down by three touchdowns. Only this time, you say, “how about you just give me 95 cents now and we’ll call it quits?” Well, I could give you 95 cents, and save myself 5 cents, or I could go ahead and see what happens. Obviously, this time I’m a lot more likely to stand pat and see if my team can pull off the comeback. That’s what your insurer is doing. Of course, they may even think it’s more likely that they’ll win than lose, in which case they probably won’t even pay half the policy limit.
Sorry… Y is beating X in both examples, not the other way around.
Yeah, I follow your logic; basically, from the enemy’s point of view it boils down to “What do I have to lose?” But, I honestly expected them to make a counter offer and it really kind of scares me that they didn’t–it makes me wonder what they have up their sleeves. If their failure to make a counter offer is just “business as usual,” then my concern (paranoia) might not be as intense as it is. At this point, I mainly just wanna get it over with.
LouisB, I really cannot overemphasize how it is the tactic of insurance defense attorneys to delay, delay, delay.
The only way you get them off their time-buying mindset is to make a VERY lowball offer. I wouldn’t necessarily read anything into their failure to counteroffer beyond it being part of their normal way of going about things. About the only thing it tells you is that they ultimately believe that the case will settle for a whole lot less than the initial demand.
IME, this is not strictly true. Adjusters want files settled, and settled now. They’ll only brook delays insofar as it allows for additional investigation, unless the plaintiff is making silly offers or refusing to make a demand at all.
From reading what you posted, it sounds like the insurance company blew off the demand letter and your attorneys have just filed a lawsuit, correct?
A lot of insurance companies have the attorneys who handle these cases in house. While the pleadings may say have a lawfirm name, the lawyers are employees of the insurance company. Other insurance companies have a list of counsel that they will refer the matter to. Those attorneys are working for the insurance company at reduced hourly rates. What this means for the insurance company is that fighting a lawsuit isn’t that expensive for them.
Often, what happens is that cases will settle after discovery. This occurs because they have been able to ascertain what your damages are.
As a former defense attorney, I dispute this assertion. And as a general rule, I counseled my clients to resolve cases as quickly as expedient, since that way they aren’t having to leave an opening for complications down the road to creep in.
I would also doubt that the demand for policy limits has truly been ignored. Of course, if the insurance company has not yet assigned the case out to counsel (or engaged the services of staff attorneys), the adjuster might not have bothered to respond to your pro forma demand. But an attorney would have an obligation to the client (which is NOT the insurance company, but rather the insured) to convey the fact of the demand (and would be obligated to convey the demand to the insurance company). And since there can be consequences for failure to respond timely to offers to settle, the likelihood is high that some response was received, if only a “fuck you, no.”
Finally, it should be noted that, at least in California, where I practiced, the policy limits are NOT the limit of what the lawsuit can obtain. This is why the attorney for the insured who was at fault is NOT the attorney for the insurer, although the insurer may well be providing the cost of that defense (and even the attorney from its own staff; I was staff counsel for Fireman’s Fund for a couple years doing some of that). If the actual damages are, say, $640,000, and the policy limits are $500,000, then the insured is liable for the excess damages (unless there is an umbrella policy, or some other excess insurance). Of course, most insureds tend to be somewhat judgment proof, making going after them a waste of time. But the insurance company will have a responsibility to settle at the policy limits if there is substantial possibility of a judgment higher than those limits (in California, failure to do so can result in a “bad faith” punitive lawsuit against the insurer :eek:).
And in my humble experience, PI lawyers are generally the bottlenecks on resolving cases, because while they will ALWAYS be willing to settle if you offer too much money, they rarely are willing to settle for a decent amount (read, something representing the actual chances of the case at trial) until they are forced to do so by the pressures of actually having to prepare for trial and face the settlement conference judge (at which point, I must admit, many adjusters suddenly get the religion of reasonableness).
I don’t believe that’s the case here, except where an excess carrier of some sort is involved. Florida is generally a Republican state and generally quite insurer-friendly.
Our legislature actually imposed statutory limitations on attorney’s fees payable to claimant’s attorneys in workers’ comp cases (which have naturally since been struck down by the SCOTSF)