This is probably the most frequently asked question we get, and the clients who do not ask, want to know. “What is my case worth?” The truth is, a lawyer can almost never know the true value of the case at the beginning because there are a number of factors, and some of them have to unfold over time. These factors include:
How clear is the other side’s fault?
In Texas, insurance companies pay based on the percentage of fault. Frequently, there is more than one cause to the accident. Perhaps you were speeding a little, and the other side pulled out in front of you because he thought he had time. In that case, the police may have put most of the fault on the driver that pulled out in front of you, but you would be at least partially at fault. If you were 10% at fault, then your case would be reduced by 10%. So the more clear it is that the accident was the other driver’s fault, the more your case is worth.
How serious are your injuries?
The more serious the injuries, the larger the value of the case, but this is only the starting point of the analysis. there are many questions that cannot be answered at the beginning stages of a case. How quickly will you recover? How large are your medical bills going to be? Does the doctor recommend surgery? Did you actually get surgery? Are the injuries objectively proven through an MRI or other medical study? Will you have ongoing medical care in the future? Do you have any permanent scars or disfigurement? Do you have any permanent physical limitations or impairment as a result of the car wreck? Did you suffer lost wages? Do you have any future lost wages? Is there a psychological component to your injuries (meaning that injuries caused depression or anxiety.) The answers to these questions will unfold during your course of treatment, and they will greatly impact the value of your case.
Is there enough insurance?
You can have a clear-cut case against the other driver and very serious injuries in the case, but if there is not enough insurance to pay, then the victim is left holding the bag. At our firm, we work hard to make sure that we uncover every possible insurance policy. The at-fault driver is legally obligated to have liability insurance, but this is just the starting point. Sometimes, you have insurance such as UIM and PIP. Sometimes, there is a corporate policy. Sometimes there is an umbrella policy. Sometimes the driver was on the job at the time, and his employer will be responsible for the damages.
Where did the accident happen?
The value of a case is ultimately determined by what a jury would likely decide if the case were to go to trial. Thus, an accident that happened in Bexar county will be worth somewhat more than the same accident in a more rural counties. This is because, typically, rural juries are more conservative than juries in more urban areas.
Do you have an attorney?
It sounds self serving, but it is most certainly true that insurance companies take notice if you are represented. The reason is simple: the only real leverage you have against an insurance company is the ability to file (and ultimately win) a lawsuit. Unless you think you can represent yourself in court, you have no practical ability to take your case to trial. So this means that there is little you can do if the insurance company makes a low offer. However, if you do have a lawyer -- particularly the right lawyer -- then you are a credible threat because you can go to court if it is necessary. Some time ago, Allstate wrote an internal training manual for its claims adjusters that captures the whole point, stating that when an injured person has a lawyer, Allstate pay 2-3 times the amount to settle the claim. Of course, these are only averages and there are exceptions, but it never hurts to have leverage on your side.
Do you have the right attorney?
Not all lawyers are right for your case. Insurance companies are fully aware of the lawyers who are willing to go to court and those who want to settle every case no matter what. And it makes a big difference. As already mentioned, when everything’s said and done, insurance companies calculate the value of the case by determining what a hypothetical jury would award if the case went to court. Thus, if the adjuster believes that your lawyer will never really go to court, then he will have little incentive to give you his best offer. One way to make sure that your lawyer is really willing to go to court is to see if he is board certified. You cannot get board certified in personal injury unless you have substantial experience actually trying injury cases to juries.
What are the subrogation (reimbursement) claims?
Subrogation is when your health insurance company seeks reimbursement for the medical bills that they paid that are related to the accident. (We know, some of you pay $800 a month for health insurance, and when your insurance pays your bills, it seems unfair that they have right to be reimbursed out of your share of the settlement.) Fair or not, the Texas Supreme Court has made a real point to protect the health insurance companies -- even at the expense of quadriplegic victims who have future medical bills to pay. However, not all subrogations claims are created equal. A few are invalid as a matter of law. Others are capped at ⅓ of the recovery, and others are, unfortunately, not capped. Some hospitals have a right to reimbursement and others do not. It all depends on the particulars of your situation. Please know that insurance companies often seek reimbursement even when they are not legally entitled to it. Other times, they are entitled to some reimbursement, but not all. An experienced attorney will be able to carefully evaluate these reimbursement claims and negotiate on your behalf so you maximize your take home recovery, and it makes a difference -- many times it makes all the difference.