Out-of-court settlements usually benefit everyone in personal injury cases. They give the parties more control over the outcome, are less risky than trials, and conclude matters faster. As a result, only about 3 percent of civil cases go to trial. The rest either settle or are thrown out of court in some way, mostly on technicalities.
Settlement timing is very important, especially in vehicle collision matters. If the case settles too early, the settlement amount may not be enough to cover all the victim/plaintiff’s damages, especially hidden medical expenses. And, once a case closes, it is almost impossible to reopen it.
Similarly, a lawyer should not needlessly hold out for more money and delay settlement. That approach is not good for clients and also often draws the ire of Cobb County judges.
So, an experienced Marietta personal injury attorney knows the right time to begin settlement negotiations, the right time to end them, and the right amount of money to demand. That amount usually depends on a combination of the factors listed below.
This element of compensatory damages is typically the largest one. It usually includes medical bills, lost wages, and property damage.
Emergency care is usually the largest component of medical bills, but there are additional expenses as well. Most injuries require many months of physical and/or occupational therapy. Physical therapy is regaining lost functions; occupational therapy is learning a new job because the victim cannot work in the old one. Ancillary costs, like prescription drugs and medical devices, usually cost thousands of dollars as well.
If medical insurance paid some of these costs, the collateral source rule may be a factor. This rule, which varies by state, controls the admissibility of insurance payments and other “collateral source” payments. Georgia is an amount-billed state. Generally, defendants cannot present evidence of collateral source payments to reduce the damage award.
Assume Tom is hurt in a car crash, he incurs $25,000 in medical bills, and his health insurance company pays $20,000. The Cobb County jury would not know anything about the insurance payment. As far as the jury is concerned, Tom’s medical bills were $25,000 and not $5,000.
The collateral source rule does not come up very often. Most health insurance companies do not pay car crash related bills, for liability reasons.
Lost wages are usually easy to calculate. If the victim was unemployed or self-employed (or self-unemployed), lost wages are a bit trickier.
Property damage is in the “economic losses” category, but these losses are not just financial. Typically, the family car has an emotional value in addition to a monetary value. The same thing is true of any personal items lost in the crash.
The defendant is liable for all damages, at least in most cases. Family pets are the big exception. Although pets have substantial emotional value, Georgia law generally only allows recover for the animal’s economic value.
These losses are the intangible losses which come with serious injuries. Some common noneconomic damages include:
- Pain and suffering,
- Loss of enjoyment in life,
- Emotional distress, and
- Loss of consortium (companionship and contribution to household affairs).
To calculate noneconomic losses, some attorneys multiply the economic damages by two, three, or four, depending on the other factors listed below. Other attorneys use a per diem approach. If it takes Tom six months (180 days) to recover from his injuries and he normally earns $200 a day, his estimated noneconomic losses would be $36,000.
Identity and Preferences of the Parties
Let’s start with the insurance company. As a rule of thumb, large national car insurance companies, like State Farm, put up more of a fight than small, local insurance companies, like Peachstate.
Large companies usually have in-house lawyers, so the company does not care how long the fight takes or how much it costs. Small companies usually pay their attorneys by the hour, so they are motivated to settle quickly.
Likewise, the victim/plaintiff is sometimes motivated to settle the matter quickly. Other times, the victim/plaintiff wants or needs to hold out for more money. In other words, a Marietta personal injury attorney sometimes reduces a financial demand to facilitate a faster settlement. But that’s only if the client authorizes such a strategy.
For the victim/plaintiff, evidence is usually the key factor. For the insurance company, a legal defense is usually the key factor. A Marietta personal injury attorney must account for both these things.
The more evidence the victim/plaintiff presents, the easier it is to establish ordinary negligence or negligence per se. Additionally, Cobb County jurors usually award more damages if there is considerable evidence of negligence. Some common sources include:
- Police accident report
- Medical bills
- Victim’s testimony
- Witness testimony
- Physical evidence, such as the vehicle’s Event Data Recorder.
Victim/plaintiffs must establish negligence by a preponderance of the evidence (more likely than not). That’s the lowest standard of proof in Georgia.
Since the standard of proof is so low, insurance companies usually cannot win straight-up fights. Instead, they look for legal loopholes to reduce or deny compensation. Some of these loopholes include:
- Contributory Negligence: This doctrine shifts blame for the accident from the tortfeasor (negligent driver) to the victim. For example, one driver might have made an illegal lane change while the other one was speeding.
- Sudden Emergency: If the tortfeasor reasonably reacted to a sudden emergency, the tortfeasor is not liable for damages. Insurance company lawyers usually try to stretch sudden emergency to things like jaywalking pedestrians, but the defense normally does not apply in these situations.
- Last Clear Chance: This defense often arises in rear-end and head-on crashes. If the victim did not avoid the crash when s/he had the last clear chance to do so, the tortfeasor is not liable for damages.
Generally, these defenses must survive two layers of scrutiny. First, the judge must decide if the defense is legally applicable. Second, the jury must decide if the defense fits the facts.
Contact an Aggressive Lawyer
Determining a claim’s settlement value is partly science and partly art. For a free consultation with an experienced personal injury attorney in Marietta, contact The Phillips Law Firm, LLC. Attorneys can connect victims with doctors, even if they have no money or insurance.