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How much to settle your injury claim?

If there were perfect justice, anyone who caused harm to another, whether on purpose or by accident, would be responsible to make things right through a “do-over” – and make it as if the injury never happened. However, that isn’t reality. It’s not possible to go back and undo the past, take away the pain, restore health, and erase memory.

In the legal world, all that can be done is have an attorney pursue financial compensation for an injured client under the theory that money can somehow make up for the experienced losses. Of course, we know that financial compensation doesn’t truly compensate for an injury. There aren’t many people who would willingly lose a loved one for pay or suffer chronic pain in exchange for money. Unfortunately, it is the best we can do. It ties back to the concept of restitution in the Bible. Over time, this idea took root in English, then American law.

Arizona instructs a jury what factors it may consider when deciding how much to compensate one injured by the fault of someone else:

  • The nature, extent, and duration of the injury.
  • The pain, discomfort, suffering, disability, disfigurement, and anxiety already experienced, and reasonably probable to be experienced in the future as a result of the injury.
  • Reasonable expenses of necessary medical care, treatment, and services rendered, and reasonably probable to be incurred in the future.
  • Lost earnings to date, and any decrease in earning power or capacity in the future.
  • Loss of love, care, affection, companionship, and other pleasures of the marital relationship.

Loss of enjoyment of life, that is, the participation in life’s activities to the quality and extent normally enjoyed before the injury.

What to settle for is based upon a rational prediction of what a jury likely would decide upon the facts given. Those same points are used in evaluating the range of settlement potential for a claim for monetary damages.

That is more art than science and takes into consideration many factors. A sample of questions proves the point:

  • Who is at fault?
  • What were the injuries? Are any of them permanent? Was the accident a cause?
  • What percentage of the fault should each involved person bear?
  • Was the fault aggravated? Will a jury get angry at someone?
  • Was medical treatment reasonable?
  • What was the cost of medical treatment?
  • Will there be future medical expenses? If so, what will they cost?
  • Did the injuries impact the ability to work?
  • What amount of income was lost as a result of the injury? Will there continue to be lost income in the future?
  • Did the injured individual have any pre-existing medical problems? Were they aggravated by the accident?
  • How well does the person testify about the effects of the injuries on his life?
  • Are the parties believable? Likable?
  • Does the plaintiff exaggerate his/her injuries?
  • How strong is the medical evidence?
  • Are the testifying doctors credible?
  • Will experts be needed for the jury to understand engineering, scientific or medical evidence?
  • Which expert will be believable?
  • Where will the trial be held?
  • What are the chances of a judge deciding there is no legal support for the claim?
  • Are juries in that jurisdiction conservative or liberal with damages?
  • Will the jury be sympathetic to this type of injury?
  • Will jurors be able to understand the technical evidence?
  • Are punitive damages sought?
  • What jury trial experience do the lawyers have?
  • How will the lawyers come across to a jury?
  • Does the judge lean toward plaintiffs or defendants in rulings on evidence?
  • What have been the results when similar cases have gone to trial?
  • What have other cases with similar injuries settled for?

When an insurer evaluates a claim, those last two factors tend to have greater weight than the others. Insurers have access to databases that have hundreds, maybe even thousands of similar claims. An experienced adjuster will have seen many claims just like the one at hand. For larger claims, a “round-table” process takes place where the insurer’s most skilled and experienced casualty claims professionals gather to evaluate injury claims by asking the questions above and by examining similar settlement claims and published jury verdicts. Some insurers will use software that incorporates closed claims data from a specific geographical region. While the software is useful as an estimating tool, it doesn’t take into consideration external factors such as re-injuries to or complications of preexisting conditions, the experience or reputation of the trial counsel, aggravated liability, the appearance and believability of the parties, and a several other factors. (After all, juries are never informed as to what other similar claims have settled for, and they are never told about insurance.)

For an individual claims professional to recommend settlement in an amount outside the norm requires ample evidence for why this claim is different from the run of the mill case. Is the risk of a higher jury verdict on these facts with these parties great enough to merit offering more money in settlement and eliminate the risk. In other words, what do I think a jury will most likely award if this case goes to trial?

Other considerations can impact a defendant’s decision to settle. Do we want to defend the product or this professional or this company through trial to send a message to other claimants that a suit against us is never easy? Do we want to avoid adverse publicity either from a trial or from a settlement? Are there business or financial reasons to delay a settlement? Are insurance policy limits so low that the insurer risks having to pay its own money if it does not settle now and puts the policyholder at risk?

There is no chart to refer to which will tell you what to expect. Even experienced lawyers or claims professionals may have different opinions of valuation from the same set of facts. And as new information comes to light evaluations change.

Our advice? Hire a lawyer after carefully interviewing him or her about familiarity with this type of claim and this type of injury. Gathering information bearing on fault and damages takes diligence and skill.  Presenting those facts to persuade an insurer requires a depth of understanding, experience and artistry.  A lawyer’s opinion of settlement value will fluctuate as information bearing on risk changes.  Ask your lawyer for a range of potential settlements and for updated evaluations as new information is learned.