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A fundamental rule of job searches, business deals, and many other areas of one’s financial life is to always reject the first offer. This rule especially holds true in personal injury negotiations. Frequently, an insurance adjuster makes the first settlement offer while the victim is still in the hospital. At this point, many victims aren’t thinking clearly, because of their pain and possible head injuries. Instead of backing off, insurance adjusters relentlessly pressure victims to sign on the dotted line.
With that in mind, accepting a pre-litigation settlement offer isn’t necessarily a bad idea but we strongly suggest it be reviewed by an attorney before acceptance. If liability and damages are clear, insurance companies usually have a duty to make fair settlement offers within a month. Rejecting a fair offer violates another negotiating rule of thumb.
Usually, as outlined below, personal injury claims feature liability and/or damage disputes. Therefore, an insurance company won’t offer an accident victim a fair offer. In these cases, a personal injury lawyer must be a good litigator and negotiator. An attorney must analyze a case and build a strong negligence claim that withstands insurance company defenses.
Insurance adjusters typically use boilerplate tables (X injury in Y city means Z amount of compensation) to make initial offers. A skilled personal injury lawyer must calculate a claim’s settlement value to determine if any offer, whether it’s the first one or the last one, is fair.
In New York, an injury claim’s settlement value, which is like a new car’s sticker price, has three basic components.
Proof in the Case
Evidence in a personal injury claim usually includes the police accident report or other official incident report, witness statements, and medical bills. Victim/plaintiffs have the burden of proof in negligence claims. So, without proper evidence, a claim’s settlement value is practically zero.
At an accident scene, emergency responders interview witnesses, examine physical evidence, and determine accident fault.
Fault is a preliminary determination. Liability for damages is all that matters in a civil claim. A fault determination normally means a liability finding, but exceptions are common in both cases.
A judge often reverses a preliminary fault determination because the evidence isn’t as solid as it seems. Witnesses rarely lie, but they do remember things selectively. Generally, we see and hear what we want to see and hear.
Moreover, additional evidence usually surfaces later, like information from a vehicle’s Event Data Recorder. EDR information, like vehicle speed and steering angle, confirms or denies the aforementioned evidence.
So, even if an insurance adjuster or emergency responder says you were at fault, always consult an experienced personal injury lawyer to evaluate your case.
Legal Theories
The evidence determines what claims and defenses apply, as well as the strength of these claims and defenses.
Basically, negligence is a lack of care. Most drivers and property owners have a duty of reasonable care. They must take care to ensure that other drivers and invited guests are reasonably safe. If a breach of duty causes injury, a personal injury attorney can obtain compensation for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.
These same damages are available in negligence per se claims. Essentially, negligence per se is a violation of a safety law, like DUI or a dog leash law. If that violation substantially causes injury, the tortfeasor (negligent actor) is presumptively liable for damages.
Comparative fault, in one form or another, is the most common negligence defense. This defense is stronger if the victim was drunk at the time of the wreck, ignored a “Beware of Dog” sign, or similar evidence exists.
Intangibles
Some insurance companies may tell their lawyers to make seemingly high settlement offers. Likewise, some victims may want to accept the first offer that comes in. These victims could instruct their lawyers to accept lower settlement offers.
Other intangibles include the type and location of injury. Some cases are statement cases, for insurance companies or victims. Additionally, if the injury occurred in a victim-friendly or victim-unfriendly jurisdiction, the settlement value could go up or down.
Victims should carefully consider each insurance company settlement offer. For a free consultation with an experienced personal injury lawyer, contact Napoli Shkolnik. We are ready to provide you with your legal options with no obligation.