Once it is time to attempt to resolve a personal injury, accident or medical malpractice case, the insurance adjustor generally prefers to make the initial offer, but sometimes a demand is warranted prior to making an offer. Claims representatives generally argue the facts and try to shy away from arguing dollars and cents. The strengths of the case are generally pointed out when negotiating. It is helpful for a claims representative to know all of weaknesses of the case so there are no surprises and it is easier to counter a particular attorney’s arguments. Claims adjustors like to chip away at a claimant’s case, pointing out such issues as:
- Low-impact collision
- Not seeking medical attention until weeks after the accident
- Sporadic treatment or gaps in treatment
- Missing medical appointments
- Low disability ratings
- Preexisting injuries
- Advanced age
- No lost time from work
- Contributory negligence
- Emergency circumstances
- Poor witness potential
- Other issues that might be present to potentially reduce it’s the value of a case
In order to increase the value of a claimant’s case, it is important for the claimant’s attorney to review the issues that might negatively affect the case and explain to the client what can be done to help increase the value of the claimant’s case.
Once negotiations fail or just prior to the statute of limitations expiring, the claimant’s attorney will put the case into suit, at which point, the claimant’s adjustor will refer the case out to defense counsel to represent the claimant. This attorney technically represents the insured but is paid by the insurance company by virtue of the coverage afforded under the policy.
After the case is put into suit, the insurance company has the opportunity to conduct extensive discovery through written interrogatories and requests for production, deposing the claimant, the claimant’s witnesses, the claimant’s treating physicians, and, most importantly, having the claimant examined by a doctor that the insurance company hires, who generally disagrees with some or all of the claimant’s treating physicians’ findings, which further helps to reduce the value of the case.
A great number of other considerations also factor into the decision of when to settle a case and for how much. The greatest benefit a claimant has is involving an experienced personal injury attorney in their case right from the start so they get continuous practical advice and do not jeopardize the value of their case.