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Post accident, how much to ask for ??(57 posts)
|Post accident, how much to ask for ??||t-moore|
Jan 27, 2004 12:49 AM
|12/13, I was hit/knocked off of my bike. The driver was at fault, and her insurance company has accepted responsibility. We have come to a fair agreement on the property damage, now it is time for the medical and pain and suffering.
My head hit the ground hard enough to crack open my helmet, as I came of in excess of 20 mph. I am glad that I was able to get up and shake it off. I had a hip pointer that healed itsef in a week or so, and I tore a ligament in my hand. My hand has been bothering me since the accident, and I have been to my HMO for x-rays and treatment. My hand is getting better, and I think after another month or so it should be healed, and I will have no permenant injuries from the crash.
I don't want to go the PI attorney route, but do want some compensation for my pain and suffering. The adjuster has been nonadversarial and down right friendly, but I know his job is to settle claims for the least amount possible. What is a reasonable level of compensation that would be a win win for both the insurer and myself?
|out of touch....||philippec|
Jan 27, 2004 2:05 AM
|with America is how I feel when I read things like this. Please bear w/ me for a bit. I was raised in the US and am 1/2 American... so I have a pretty good feeling for the general context of your question. You have had an accident and have had recourse to an arbitration w/ the responsible party's insurer to cover your losses. These include damage to your bike, medical costs and... pain and suffering. Now, I can understand the first two as those are actual cash outlays, and I understand there is considerable legal theory and precedent for the latter. However, on the latter point, there is a real disconnect (is that officially a noun now?) between what I understand and what I feel.
Your hand is healing and might be completely healed in a month (then again, it might give you problems the rest of your life). You may have experienced "pain and suffering" and might possibly do so later. But where do you draw the line between what is simply the outcome of living and what should be monetised into a damage settlement and pinned onto someone elses shoulders? As I type this, I am passing in review a number of incidents in my life where I have experienced pain and suffering. These include the time I first took my 1st bike (a Sears "chopper", complete w/handlebar tassles) onto the roads away from my driveway, got run off by a car and had the chrome fender split my lip through to my teeth (leaving a scar to this day), the time I was roofing and fell off in a sudden rain storm as I tried to keep a co-worker from sliding off and the the persistent dull twinges that I get in my right wrist as I type that may or may not be the precurser to Carpal Tunnel syndrome. Who was responsible for my pain and suffering then? The driver? Sears? the roofing company? the weather channel for not predicting rain? my co-worker for staying exposed on the roof too long? my workplace? Or maybe just fate ... these were some of the lumps that life lobbed my way and overall, I emerged fully functioning and can barely remember the "pain and suffering" now (okay w/ the exception of the wrist thing!). My costs were covered, my bills were paid and I didn't ask for anything more.
So back to my opening statement and to your question. Sometimes I feel like I just don't understand people's discourse on this issue. You look like like you received compensation for what you lost. I'd keep at that and consider the "pain and suffering" just part of life.
Please don't take this the wrong way, I am not targetting you personally -- and I even understand that a.) it is difficult to resist money that is most likely going to be offered to you, b.) that the Insurance industry expects these pay-outs and gouges.. er, I mean charges its subscribers accordingly, and that c.) you are not going to change the system. So here is my easy way out. Take what the Insurance co. offers you and turn around and donate it to a medical clinic that offers services to the un-insured. Perhaps you will build up enough good karma to avoid ever being on the receiving end of a SUV again....
Jan 27, 2004 3:53 AM
|Nobody could have said it better.
It sounds (I may be mistaken here) as if you are trying to pick up a few bucks here. The extent of permanent damage appears to be very limited from the post, and a "pain and suffering" settlement would be relatively small if I were to judge it, given the information available here. The best way to procede would be to contact an attorney.
By the way, I speak from a bit of experience. I spent ten weeks in the hospital due to a cycling accident caused by anothers negligence, and I do suffer to this day (the accident was over 4 years ago.)
Ride in Peace...Mike
|loud applause - nm||MJ|
Jan 27, 2004 4:09 AM
|out of this world...||cyclingforwealth|
Jan 27, 2004 5:09 AM
|Your fault for riding a bike on a road. This accident (assuming you didn't cause it with your reckless behavior, which I doubt) should not be considered as anything more serious than running over someone's mailbox. Would you deserve "pain and suffering" money if you came home and found your mailbox flattened? Think of the poor driver whose rates are going up. Be grateful that the insurance company has given you anything. Cash in your IRA and write a check for a new jacuzzi for the execs at their hdqtrs. (and don't skip on the zeros, because your wrist "hurts" a little too much). Aside from being a gesture of appreciation and gratitude for these selfless paragons, it all but "insures" you against drowning in a hot tub, if you trust in karma.|
|Bravo. Awesome. You go Philippe. (nm)||OffTheBack|
Jan 27, 2004 5:47 AM
|Well said, Phillippe!||KG 361|
Jan 27, 2004 6:44 AM
|Good advice. The only way that I would go after "pain and suffering" is if I was PERMANANTLY disfigured or lost the ability to continue on with my present life-style. Since the adjuster is being decent, make sure you don't get screwed on the replacements and take what they give you for the pain and suffering and move on.|
|yes, you are out of touch||Andy C|
Jan 27, 2004 7:47 AM
|Its a fair system. Your "that's life" attitude is fine, but getting knocked down by a car is not something a person should expect as a part of life, and you're crazy for thinking that. It reminds me of Afghanistan, where stepping on a land mine is simply "Allah's Will", and nobody gives a second thought about planting crops in a mine field.
Its a nice planet you're all living on, but let the Earth man deserve some money for his pain, forcryingoutloud.
Jan 27, 2004 7:51 AM
|And the thought that an insurance company would pay an unjustified claim is ridiculous. He'll be able to squeeze out of them at most what he's entitled to in the first place.|
Jan 27, 2004 8:03 AM
|he should sue for millions - after all - who would have ever thought that when you ride a bike on the road you may get in an acident caused by someone else - and who would ever think that accepting the money that's offered following that accident is the right and proper way to deal with things - he should take them for everything he can - maybe even instruct a lawyer and play "hardball"
enjoy your annual premium increases...
|this is what I'm talking about. You think, as does our||bill|
Jan 27, 2004 9:07 AM
|president, that premium increases are the result of claims, particularly frivolous claims. |
This is bullsh*t. It's a lie. Say it, all together now. It's a lie. A bald, out and out, they should all be ashamed lie.
l don't blame you personally for believing it. It makes sense enough. Right?
The only trouble is that the statistics don't support it. First of all, no one has any data on "frivolous" claims vs. meritorious claims. No one. Not the insurance industry, not any watchdog group; no one. The reason is easy -- these are in the eye of the beholder. Because, however, the industry has determined that the public responds to this message but is not quite ready to give up on compensation for meritorious claims, they trot it out. And Bush is in the embrace of the insurance industry, as are many, many politicians.
Okay, just because there's no data doesn't make it not so, right?
Well, the truth is that personal injury FILINGS and AWARDS are DOWN. That's right. DOWN (compared to all civil filings in relative numbers, compared to previous PI awards in absolute, inflation-adjusted dollars). Check with the National Center for State Courts, or even the insurance industry's own figures. FILINGS AND AWARDS ARE DOWN. Say it with me now. DOWN. What about the litigation explosion? To the extent that the litigation explosion and crowded courts is not a bald lie, it's about (1) criminal cases, which are way, way up, and (2) business to business claims, which are also way, way up and, btw, which acccount for almost all punitive damage awards. Not personal injury claims.
So, how come premiums are going up? Well, a true cynic will look at Allstate's bottom line, which is skying, and say that it's gouging because the PR climate is right, but we don't need to go there.
It's about investments and about catastrophic losses. You think that our hero's wrist has anything to do with your premiums? No, no, no, mon frer. That's absurd. Think bigger. Think 9/11. Think the stock market in 2000. Think Hurricane Isabel. Think bad commercial real estate investments. Think the sinking dollar. Now, you're getting warmer.
|agree in part||MJ|
Jan 27, 2004 9:22 AM
|but the question was "how much should I ask for"
without casting aspersions on the orginal poster there appears to be an opportunistic agenda operating here
the approach reminds me of the woman who sued for getting burned by hot coffee at MaccyD's
life is dangerous - no one is disputing compensation should be awarded when injury results following someone else's negligence - but the how much can I get out of it approach is a dangerous route
|oh boy, now you've got me started. Re: hot coffee case:||bill|
Jan 27, 2004 10:09 AM
|Couple of points about that case -- |
Everyone thinks that the woman, who was in her seventies, was not really injured. As it happens, she suffered third degree (third!) over a substantial part of her thighs. She underwent several skin grafts and required about $75,000 worth of treatment. That's a lot of treatment, and there is no injury more painful than a burn.
The evidence also was that McD's kept its coffee ten to twenty degrees hotter than anyone else in the industry. And put it in a cup that was not designed for that temperature. And handed it to people on the drive through lines. I also believe that the case was tried in a comparative fault state, which means that there is not a winner and a loser but a mostly winner and a mostly loser, so that the jury could consider the plaintiff's fault and reduce the plaintiff's award accordingly, whcih presumably was done.
What was not evidence but which should enter your thinking is that the plaintiff begged to settle with McDonalds. I forget what the negotiations were, but I at least remember that the plaintiff wasn't asking for anything like the $2.7 million that was awarded. McDonalds said to pound sand and didn't, as I recall, offer anything.
Then, everyone wants to blame the plaintiff or the plaintiff's lawyer. It wasn't the plaintiff who set the number, it wasn't the lawyer. They wanted to settle and to settle reasonably as I recall. Plaintiff's lawyers are not hypnotists. It was the jury, and it was the McDonalds' lawyers who pissed off the jury. Who should we blame for the anomaly? The lady? The plaintiff's lawyers? Or an arrogant, greedy corporation?
Then, I believe that the judge reduced the award, which judges have the prerogative do to, and the case went up on appeal anyway (appealed by McDonalds), and the parties settled for, I believe, an undisclosed sum but whatever it was, it was far less than what was awarded.
So, even that's more complicated.
Jan 27, 2004 10:21 AM
|I'm all for people taking money from Maccy D's - couldn't happen to a better company
but - focus on the other points in my post - the claim jackpot attitude is what is difficult to stomach - you've gotta see that on some level whichever side you fall on
|The "claim jackpot" doesn't exist. I can't say that my clients,||bill|
Jan 27, 2004 10:38 AM
|some of them, many of them maybe for an instant, don't at some point have much bigger dollar signs in their eyes than is realistic, but, believe me, that has almost nothing to do with the process or the end result. No one can impose these desires on the system. And only a very very very small handful have held on to these dreams or even not given them up pretty easily. Most of them just want to know what's a reasonable outcome, get it, and be done with it all. |
The system is not driven to distraction by unrealistic plaintiffs. Not only have I worked both sides of the fence, but I do mediations, where I get to see both sides simultaneously. I see many more unrealistic, intransigent, or, shall we say, very, very hardnosed defendants than I see plaintiffs unwilling to be reasonable.
The other biggest lie -- that plaintiffs are creating any litigation expansion, to the extent any exists -- is more than false. I guess they are in the sense that plaintiffs have the nerve to get injured and then want the responsible party to be reasonble, but far, far more cases end up in litigation because the insurance companies are being unreasonable than vice versa. Far more. That the public perceives it oppositely is indeed very upsetting to me. Because everyone thinks they know what's what and no one wants to hear it.
|lawyers biggest PR problem is Jefferson County||dctrofspin|
Jan 27, 2004 11:18 AM
|is it in Alabama? .. somewhere down South .. where the jury awards did get compeltely out of whack and the insurance and coroporate interests made it well known. Working for GM, I can say that in most product litigation cases we face -- and we face many -- 95 percent come to a quick and reasonable conclusion. In other words, we know when we've got a legitimate issue and we compensate in a way that is just and acceptable for all involved. If we end up in trial, it's because we are absolutely resolute that we're not respsonible for the issue. In those cases, we are usually very successful as well. In the high profile cases we have lost, the awards that we absurdly high have almost universally been reduced by a higher court. So I would agree with you that the system is working and that lawyers are not necessarily the enemy.
But what I struggle with...and its come up in this thread... is the idea of "greedy and mean corporations" that are hellbent on beating the tar out of the little guy. It's just not the case. The other thing that I can't stand is the idea that everyone is owed something. In the case at hand, doesn't the rider shoulder some of the risk of riding in the first place? You don't need to be a genious to know that when you ride a bike around a bunch of 4000 lbs cars, you're engaging in a risky behavior. The insurance company has compensated for the property loss, and probably is willing to throw in some sugar to keep this out of court. Isn't that enough? Does society owe us 100 percent protection against all risk? I fear that the downward spiral of controlling risk will simply result in a restraint of activities that we enjoy.
|why is that the lawyers PR problem? There were lawyers on both||bill|
Jan 27, 2004 1:40 PM
|sides, weren't there? No lawyer made the call to award the bucks -- it was the jury. It was people who listened to both sides present their cases. The system doesn't always work, and it probably works some places better than others, but in most places the decks aren't stacked as you describe. |
Why aren't you equally upset with jurisdictions where the corporations and insurance companies get every break, where a plaintiff is very, very unlucky to be? Where a plaintiff who may be a victim of a rear ender just wants to get medical bills paid and can't even get that to happen because of attitudes planted by the insurance industry? It's not news, but it happens, and it happens more often than you think.
It isn't risk that is being eliminated -- the law in Virginia, D.C., and Maryland and in most everywhere I've ever heard about provides that the plaintiff can't recover for any risk assumed. If that risk contributes in any way to the loss, recovery is barred. I assume certain risks of riding, but I don't assume the risk of other people's acting unreasonably for my safety. It is the unreasonable part that people forget is an essential element of these claims.
Wacky stories occur, no doubt, but less often than the chips fall the other way. I would say that of every ten cases that get tried, a plurality, maybe a majority, fall predictably. In the next largest group, maybe three or four of the ten, the jury awards less than you'd expect. The smallest group, maybe one or two, the jury awards more. And it ain't a lot more, either.
|Micro perspective from someone who works in insurance so....||myette10|
Jan 27, 2004 5:00 PM
|...I can lend this perspective. I've spent many many years on the other side of the fence from Bill and he does raise some valid points that most likely apply in general to the insurance industry. Catastrphic losses (East Coast hurricanes, West Coast fires), poor investments (what company hasn't made those) and political influence (what industry doesn't have them) are a reality and do affect the direction of the industry as a whole and the net effect on your is premium increases. Bill has highlighted some great points on the macro level, let's think of things on the micro level. Afterall, on a wide scale we could all probably find fault with some of the larger institutions in this country such as education, health care, military, etc...
When thinking about insurance though please do not loose sight of a very important point: every state with the exception of Massachusetts lets market factors affect the rates companies charge. Each company individually determines the risk posed by each insured and charges a premium based on a factor by which that risk index is multiplied.
The implication of this is two fold. The conservative investing (0% JDSU in their portoflio), savvy underwriting (picks good "risks" to insure), meticuliously actuarial (good risk calculating) company should be able to charge a lower premium as they assume no unnecessary risks, do not squander their investment capital, and have the risk percentages nailed. This is not the case though, and rates in fact are high across the board. To say that these "perfect" insurance companies do not exist may be true, but there are some that score better in these areas than others and still all premiums are going up.
The second thing to consider is that in this particular market, the lines differentiating supplier (in this case insureds, who supply premiums) and consumer (in this case claimants, who consume indemnity payments and claims services) is blurred. Every individual, business, non-profit that the insurance company makes contact with who is not already an insured has the potential to be one. It is therefore in the interest of the survival of the company to deal with their claimants in an equitable manner. If not on an individual level, certainly collectivly. Are there companies out there who low-ball every single injured claimant? Sure, but those companies fail to see the long term successes available to them in reduced legal expenses, decreased renewals because of displeased agents and insureds (who are aggrivated when presented with suit papers, EUOs, etc). Insurance is a buisiness on the micro level, customer service (including possible future customers) is critical to success. It has to be, it is the only thing that the insurance company produces.
There is no question the system as it exists is broken. Companies pay on to many bad claims to avoid prolonged expense and open reserve (money set aside for each claim when it is ffirst opened) balances and as a result unnecessary claims take up a greater percentage of an adjusters time.
As this thread has focused on catastrophic claims let's discuss those: fractures, disfigurement, and the like. The handling of these claims is tough. Someone here mentioned that $30,000 won't ever make their shoulder feel the same, but for that matter, would $30 million? No, your shoulder will unfortunately always hurt whether you drive a Escort or an Escalade. Settlements are relational and relevant, for both sides. Adjusters compare a broken leg on a 15 yr old female soccer playing high schooler to that of a 35 yr old male bike messenger and try to make a decision: The soccer player case settled for $45,000 so perhaps this guys is worth $30,000? The bike messenger may be thinking "The lady at McDonald's got $7 million, my leg is worth at least $500,000." So the gap between parties is born.
It is not science, or the whole thing would be automated. "Colussus" was a program that tried to automatically gene
|Bill, you missed my point||dctrofspin|
Jan 28, 2004 6:04 AM
|You've been venting that there is a huge misonception regarding lawyers and alledged out of control settlements. My point was that juries down in Jefferson County -- a place where no doctor will practice -- have been a national story, a favorite place for insurance and corporate PR types to point blame. As far as jurisdictions where corporations and insurance companies get big breaks and my lack of being upset, two quick points: 1) I'm not upset at lawyers, just facinated with your vigorous defense of the profession as being nearly perfect on these issues and the insurance companies perpetrating a 100 percent no wiggle room lie; and 2) you answered the question yourself....its the jury that renders the verdict, not the corporation. Please tell me where these easy jurisdictions are so I can let our evil corporate lawyers in on the secret.
BTW, if you'd like to delve into how "big corporations get off easy" I'd be glad to let you skip through some of the cases and verdicts we are hit with as an auto company. You're perspective is colored -- rightly so -- by where you sit as a lawyer. Mine is colored by being a wicked corporate giant. If you could see some of the outlandish and contrived things we deal with, you may feel differently.
One last point on the purity of the profession....the trial lawyers are at present running the mother of all advertising and PR campaigns against the pending asbestos legislation. The ads are so sensational and distortive it hurts. I would also point to the silicon breast implant issue as another case in point where things got totally out of control. In that situation, the conclusive result of the most exhaustive medical review in the history of medical reviews was that the issue never existed in the first place. (I know you're spitting mad now, but honestly, I love these conversations and I think you're a stand-up guy with a great point of view!).
|couple of points in response:||bill|
Jan 28, 2004 7:47 AM
|One is that there are trial lawyers and there are trial lawyers. I stopped my membership to ATLA because the cheerleading for big verdicts against companies was unfair and made me squeamish about what I do -- which is to help people get a little help getting pieces of their lives back. So, I don't have much to do with those special interests, which probably are no better or worse than any other. I also make no case that lawyers are pure -- although I will say that I've had many more clients, both defense and plaintiff, lie to me than lawyers, and, while some are better than others, the vast majority of lawyers I deal with every day are perfectly nice, intelligent, decent people. With few but very noteworthy exceptions. So, that's what I think of lawyers, and what I say is not so much in defense of plaintiff's lawyers or even lawyers in general -- there is purity or lack thereof to go around -- as to say that the ire against lawyers is misplaced. Plaintiff's lawyers are participants in the system, as are defense lawyers and judges and juries, and they certainly are no greater part. The assumption when there is a big verdict is that some slick plaintiff's lawyer has pulled off an injustice, and everybody says, oooooo, trial lawyers, bad, but that overlooks the entire rest of the system. Like as not, the case went bad for the defense because of corporate arrogance -- that's not propaganda, that's a fact, related many times by people in said trenches. And, remember that the system swings the other way, too, and it's been swinging in the trenches far, far more the other way than the way of the storied slick plaintiff's lawyer. |
My vehemence was directed at the insurance industry particularly, not corporations in general, which is a different issue as far as this stuff goes. Do I think that corporations are always wrong, always buy justice, and never do the right thing? Of course not. Do I believe that the current PR campaign about insurance premiums and frivolous suits and malpractice suits driving doctors out of business is a bald lie that is told again and again because people kind of want to believe it? Absolutely, completely, yes. The data either don't exist to support the argument or, to the extent they do exist, support the opposite conclusion.
You bring up one county. I actually am not familiar with it, but it's a big country, my brother, and there are bazillions of little horror stories the other way. Bazillions.
|You can never trust the sanity of a guy who rides||dctrofspin|
Jan 28, 2004 9:10 AM
|in 15 degree weather in DC .|
Jan 28, 2004 12:14 AM
|where do you practice? what areas do you cover? do you have an email I can contact you on?|
|e-mail me at email@example.com||bill|
Jan 28, 2004 2:54 AM
|I do litigation, all civil, half PI, half commercial. Office is in Arlington, VA, practice in VA and DC.|
|oh boy, now you've got me started. Re: hot coffee case:||Cary1|
Jan 27, 2004 10:23 AM
The lady wanted to settle for her medical costs, nothing more.
McDondalds claimed that when the coffee spilled that she did not mitigate damages because she should have immediately jumped out of her car and stripped here clothes off to minimize exposure to the hot liquid.
Punative damages are to punish defendant, in this case, the profits on MCDonalds coffee sales for 1 week.
|oh boy, now you've got me started. Re: hot coffee case:||al0|
Jan 27, 2004 3:01 PM
|If I remember the case properly that was not a cup self-destruction. Cup just fas overturned when that women put in in inappropriate place and has started to drive. Women's age and so shall matter nothing. I strongly believe that she deserved zero (literally ZERO) compensation.
Adult person shall make decisions and be responsible for outcome.
Tendency that ultimately goes to relieve people of such responsibility (and protect them from themselves) is quite dangerous for society in long run.
|Not too defensive here!||dctrofspin|
Jan 27, 2004 10:06 AM
This isn't about what the stats are, it's about personal responsibility, assumed risk, and just compensation for an accident. There's no question that the insurance industry is expert at running the PR game -- witness the Inusrance Institute for Highway Safety and their "exclusive" Datline NBC crash tests. You say the insurance companies are in Bush's pocket. Hmmm. And the Trial Lawyers Association and its members are not some of the biggest supporters of the Democratic party? C'mon, it all goes around and the legal profession plays the PR game just as well (Fenton Communications here in DC has made it an art form, not to mention Clarence Ditlow, Joan Claybrook and the rest of crusdading "consumer" advocates) as the insurance industry. All of this churn comes out of all of our pockets -- yours, mine and our hero's.
I know you're a lawyer, but eegads, what are you so defensive about? "It's a lie. A bald, out and out, they should all be ashamed lie." Had your clock cleaned in court by an insurance company lately?
|I'm just very offended by the debate. Not to mention that most||bill|
Jan 27, 2004 10:23 AM
|of the so-called reforms don't come close to addressing frivolous lawsuits. The system already deals with those quite nicely, thank you very much. The lawyers won't take them, the insurance companies don't pay them, and the juries chew them up and spit them out. No, the reforms are about limiting what insurance companies have to pay for real, catastrophic injuries. It isn't even about absolute dollars and a limited sum to pay claims or any kind of zero sum game -- the companies can already do that with premiums and investments, and they still make money. No, insurance companies like predictability, and they see these reforms as a way of managing cashflow. |
Even when I did defense work, we used to sit around and bemoan that we had to give lip service to the insurance companies' party lines, even though we knew it was unjust. And I have discussed the selfsame thing with insurance adjustors.
Look, most of my cases are well within the limitations proposed. The reforms themselves won't change my life much at all. What is changing is that meritorious cases where you know people should get help aren't going to work out that way, if the insurance companies get their wishes, which this White House is devoted to doing. And the public will not be a whit better for it. Suckers ye.
BTW, the other truth I failed to mention -- the state-by-state limitations that have gone into effect have resulted in virtually no premiums savings. Because the so-called problem has nothing to do with small-time claims (or even big PI claims) and premium rates. There are forces much, much larger at work.
Defensive? I don't know. Maybe that's one way of seeing it. The dishonesty, though, is so rich, the lie so big, that I don't know how to avoid it.
Jan 27, 2004 9:55 AM
|In almost 20 years of driving I have never caused an accident and never injured anyone else. I am so sick of crappy drivers and people's general acceptance of recklessness, poor driving skills and a general lack of attention that I could puke. In the last year two pedestrians have been killed within a mile of my house. If you get hit by a car and it's their fault I say take them for all they are worth.|
Jan 27, 2004 7:48 AM
|I don't see the mystery here. You seem to be conflating two issues. One, is how to separate things that are somebody's fault from things that are nobody's fault (the result of living, as you say); another is how to separate "real" damages from pain and suffering (ephemera? just one of those things?), supposing somebody is really at fault. Now, in a given situation, either or both of the two questions might be terribly hard (or not) without necessarily impugning the general project of sorting things out.
Taking the story posted at face value: we have a real person who was really injured by real negligence. Some of his losses are easy to quantify (e.g., the x-ray cost x-dollars). Some are not so easy to quantify. Typically, the not-so-easy ones get bundled together and are figured as some function of the easy ones. That may or may not be the best way to operationalize certain hazy concepts of loss, but it doesn't seem to me to impugn the idea that there's something lost here. Equally, it doesn't seem to impugn the idea that a careless person should pay for that loss in some way or that such potential losses might be anticipated before the fact.
The tort system is supposed to compensate victims for losses (after the fact). It's also supposed to discourage irresponsible behavior (before the next fact). It cannot serve either function very well by cooking up fabulous riches as compensation for very minor injuries; but neither can it serve either function by sweeping all sorts of damages under the rug. One reason not to hit somebody with your car is that, even if you do not kill or permanently cripple them (or even if you do permanently cripple them), you will HURT them. It hurts when they get hit. And it may hurt to do very basic things in life for quite some time afterward. I understand that it might be tricky to come up with a particular number (there's a court system and a settlement system to haggle over such things and develop guidelines about them; and whether we think that they operate efficiently or not is another story). But I don't see the mystery in thinking that there should be something here.
Sorry, but I just don't feel the disconnect between what I understand here and what I feel is right. I was once injured because somebody did something truly stupid. I had to be carted off in an ambulance. I wasn't crippled, but for months I experienced some significant discomfort and could not do what I wanted (for example, I couldn't ride my bike). I got something for my injury. Not rich--the settlement was in four figures, not six or seven--but I got something. I didn't feel guilty about it then and I don't now. It seemed to me right that I got something.
|You are out of touch....||lyleseven|
Jan 27, 2004 8:04 AM
|Yes, you are out of touch... I hope you never end up on my jury some day if I am injured... Are we supposed to pay the premiums to the insurance company for this coverage and then vow never to make claims against them... get real....|
|The good, the bad and the ugly . . .||ms|
Jan 27, 2004 8:23 AM
|I agree with a great deal of what you say. But, then, I may be more out of touch than you are -- I am a lawyer that has spent most of the last 20 years representing corporations and insurance companies (although not in personal injury litigation). I drafted about three or four responses to your post and erased them. For me to respond fully to the themes that you raise would require my writing a major thesis on American law, American society, life, etc. So, instead, here are three quick thoughts:
The Good: Motorists know that if they hit someone, it is likely that the person will make a claim against their insurance company and their rates will go up. At the margins, I think that this is good -- it makes people more careful. A lot of bike accidents are caused by people who are not paying attention -- talking on the cell phone, backing out of a driveway without looking. So, making a claim for pain and suffering may actually help the rest of us.
The Bad: Many people in the US are unwilling to take responsibility for their actions. An example: When I crashed in July (solo crash descending too fast on a wet road) more than one person asked me if I was going to sue "someone" -- it must be "someone's fault." Well, the only person at fault was me. But, to many people it seemed that if I was hurt I should be able to get $$ from somewhere. The bad part about this is that it makes all of us much more defensive. Two examples: (1) When my oldest daughter was born, we were interviewing prospective pediatricians. One of my stock questions was whether it made any difference to the doctor that I was a lawyer. One doctor said that it did -- he probably would be much more conservative (in other words, my kid would suffer many unnecessary tests, etc.) Another stammered before he said, unconvincingly that it would not make a difference. Well, we picked the one that said, without hesitation, that it would not make a difference (then I disclosed that the only time that I had been involved in a medical malpractice case I was representing the doctor). (2) A neighbor has a pond on his land. Here in Maryland, ponds such as this one freeze about once every two or three years. This past weekend, the neighbor said did I think that it was OK for kids in the neighborhood to skate on it. I told him that he was crazy if he let kids skate on it -- if the ice broke or someone were hurt playing hockey on the ice, some parent probably would be making a claim against him or his insurance company. He let the kids skate. But, here is the bad part -- if I controlled the pond, no one would be skating on it except for me, my family and people who signed releases.
The Ugly: Litigation is an ugly process. It beats trial by combat or trial by ordeal. But, litigation takes a toll on all involved (except for crazy people like me who like it). Even people who win contested cases often are scarred by them. Many people go into a fight without realizing the full costs of it (kind of like the US invasion of Iraq -- but that is a rant for another day).
|professional advice||wooden legs|
Jan 27, 2004 2:18 AM
|you probably assumed that i was going to give you professional advice. ha. nope. my advice is to search out a lawyer through your friends of friends and just ask him for a reasonable estimate, or look up a bike specific lawyer in your area and ask him or her. my experience especially with bike specific / specializing lawyers has always been positive, and it's good to have a figure that you know is standard and stick with it HARD. the adjuster will probably laugh at you and try to humiliate you into going down (not unheard of at all), or otherwise use psychology in knocking off a few thousand, after all us laymen have little to no experience with things like this. my accident i learned was worth around 40k, i would have thought at first that 10K would be excellent, who knew? a lawyer, i guess. the driver only had 25k in insurance, so the adjuster ended up being a pushover for 25, but i really would never have thought it would be worth that much as standard practice. ask around, any damage that can POSSIBLY affect lifelong quality of life, i.e. torn ligaments which quite often never heal fully or anything that can interfere with work or supplemental income (all those race prizes you could be missing due to your hand troubles), especially visible scars on the face or neck are worth far beyond what a layman would assume, good lawyers have set high precedents in the past. make absolutely sure you know a reasonable amount before you settle, one rarely gets the opportunity you're presented with. glad you're relatively unhurt, too.|
|GO SEE AN ATTORNEY||fredstaple|
Jan 27, 2004 3:18 AM
|Rule of thumb.............||Len J|
Jan 27, 2004 5:02 AM
|Total medical expenses Times 3 = Pain & Suffereing.
It ends up as a negotiated settlement, but if you can get north of 2.5 you are probably doing OK. I would try myself, sounds like they are working with you. This is a pretty small claim and one easily settled.
I wouldn't bother with an attorney here, unless a security blanket is worth 40% of the settlement.
|This is what the insurance co will understand||irregardless|
Jan 27, 2004 6:32 AM
|This speaks their language. Good job Len.|
|give and take/take and give...||RemmingtonShowdown|
Jan 27, 2004 5:27 AM
|What you ought to do is grab as much cash as you can from the insurance company and make a ripe old donation to a cycling program for impoverished youth. Not only will the devil on your shoulder feel vindicated, the angel will be wearing a smile too.|
|re: Post accident, how much to ask for ??||mtpisgah1|
Jan 27, 2004 5:33 AM
|Which ever route you take, make sure you are completely healed before trying to settle. It could be another 3 or 4 months but it will be worth it. After you sign the release, that is it, you will not be able to get another penny if you realize you have not healed correctly.
If you won't have any permanent injuries, your pain & suffering is worth something but not as much.
I was hit two years ago and other than the replacement of the bike, we didn't even talk to the insurance company for a little over a year. I had been healed for a few monthes but my attorney wanted to make sure everything was ok. Also, if you are too quick to settle, you will likely get less money in the end.
|Take what they offer.||dctrofspin|
Jan 27, 2004 6:26 AM
|You are fine, you are healing, you can work, etc. We all assume some risk when we get on a bike and ride. Accidents happen and that's just the way it is. You should take what they offer and not a penny more. Be thankful you're okay and on the mend. I think it's admirable that you thought enough to ask for opinions. I'm sure they'll be many who think you should turn the screws for all you can.|
|Take what they offer....and be a pawn of the insurance industry!||lyleseven|
Jan 27, 2004 10:17 PM
|Sure...let the insurance industry dictate the value of what they should pay out in claims after they have collected our premiums... Where did you come up with such a bizarre attitude. You earlier mentioned that the biker "assumes the risk" of cycling??? Give me a break. Does the pedestrian in the cross-walk assume the risk of crossing the street because the cars weigh 4000 lbs? You'd be the juror that would vote against the little old lady in the cross-walk hit by the guy driving the 4000 lbs. car who ran the red light from what I glean.
The tort system works fine and those that buy into the idea that we should pay the premiums but not make claims are the pawns of the insurance industry.
|Yes! It's true! I AM........evil bastard! Power to the corp! nm||dctrofspin|
Jan 28, 2004 7:33 AM
Jan 27, 2004 7:51 AM
|In the fall (late September), I got picked off by an SUV after he came through a stop sign. Got knocked off, lots of x-rays, trashed lots of my bike, on crutches for a few weeks, yadda yadda yadda.
I was confronted with the same question you were: how much? And let me say first off it shows that you have already some intelligence and class for coming here and talking to us instead of running to a PI attorney.
I didn't read all of the previous posts (I have to work once in a while), but I caught a few glimpses, and one of the ideas thrown out was to do some good with the extra money you will receive. I was going to get a PI attorney and go after the insurance company, and then give the money away to some good causes, sort of like Robin Hood in a way. But then I realized I would just be one of those people who fuels the fire for "ambulance-chasing attorneys" and would contribute to all of our premiums going up.
So what did I do? I had about $2k in bike and medical costs, and I settled with the insurance company for $4500. The extra money went to pay for shoulder surgery for my dog (at $1800) and helped me put new windows in my house, two causes that I don't feel terrible about putting money towards, as they benefit other people than just me.
It turns out my old teammate is a lawyer who used to defend insurance companies and he walked me through the whole process, so if you have any questions, we can email outside of this board if you like. I learned a lot in the process and don't feel bad about the money I settled for, nor do I feel like I cheated myself.
|re: Post accident, how much to ask for ??||Fender|
Jan 27, 2004 8:38 AM
|One question. Is your HMO plan offered via your employer or is it an individual plan? If it group coverage (i.e. your company pays for it) I would recommend you just ask for your bike damages, medical (copay's, etc) and lost wages. Now if you have an individual plan (you went to an insurance agent and bought it), then I would have the insurance company pay for your increases for the next year or two, since your HMO plan might not want to cover any wrist injuries due to it's pre-existing condition at renewal time.
If your still not sure on what to ask for from the insurance company, think about this "how much would you be willing to pay out of your own pocket if you had caused the same injury to somebody else?"
|The tort recovery system is ancient and well-established, and it||bill|
Jan 27, 2004 8:41 AM
|keeps us (theoretically) from duels at dawn and shootouts at noon. It is sort of kind of fair, although it is certainly not, as this White House would like to suggest, biased towards the plaintiff. The opposite is true. Because of well-run public relations campaigns on all levels of media and government by very well-monied interests (the so-called Trial Lawyers have NOTHING on the insurance industry -- just think for a moment about a lawyer, any lawyer, multiplied by a bazillion times, and compare to Travelers and CitiGroup and State Farm and Allstate and GEICO and any number of smaller companies working together). |
The court system is NOT in the hands of lawyers -- some lawyers are better than others, but there are enough good ones on both sides to go around -- or plaintiffs or anyone other than judges and juries, and the insurance companies have got to the juries, big time. The old formulas are dead. When I started practicing seventeen or so years ago (on the defense side, btw), the 3-5x medical bills thing was true enough. No more. Now, because of attitudes you see reflected on this thread, getting your medicals back can be a coup. And then you have to pay costs, and pay your lawyer, and often enough your health insurer. You can end up owing money for having to face an intransigent insurer. They know it, and maybe you'll get a fair offer and maybe they'll sit back and make you work for your pennies.
Your injuries don't sound too awful, and I agree that you have taken the risk of the road, but in our system, if you are acting reasonably yourself you never take the risk of someone else's acting unreasonably for your safety and ending up injured. You are entitled to be compensated for what you've lost, which is a bit of physical integrity, time taken to heal, and your physical well being that period of time. No more, no less. I have never, ever heard of a personal injury plaintiff who believes that the money was worth what they've lost. Ever.
Whatever is fair can't be estimated with scientific precision. A lawyer can help you sort it out, although you may learn something if you encounter difficulty finding a lawyer to take the case. A torn ligament is not nothing, but it's not the end of the world, either, if it heals okay. I agree that you should wait to see how that goes.
|a perspective from the other side of the coin||terry b|
Jan 27, 2004 9:14 AM
|A couple of years ago I had a sectional sofa I wanted to get rid. My step daughter had a friend who needed a sofa. Good match.
Her friend came to pick it up, took a section himself went out onto a dark porch (over my protestations,) slipped and shattered his knee cap. I took him to emergency, went back home, loaded the couch and that was that.
My insurance company offered to cover his medical bills, lost wages and some additional money for his pain. He declined, got a lawyer and sued me for $200,000.
His claim - it ruined his skiing and it dampened his career prospects of owning his own restaurant (he was an unemployed waiter/student at the time.)
From there, 3 or 4 years of bitter wrangling, harassing depositions, threatening letters, fear that I was going to lose my home and my retirement and him putting his life on hold. In the end, it was finally settled a day before we went to court, when my wife got ugly with our insurance company and told them to make it go away. What did he get - $48,000 to cover $30,000 in medical bills and $18,000 fees for his attorney.
I'm not going to tell you what to do, but I will say this - it takes years, it gets ugly and it puts the person who hit you through the wringer. It sounds to me like she has been straightforward with you, as has her insurance company. You need to decide whether this is about a genuine need (are you truly permanently injured) or whether you're trying to punish someone for your (undeserved) misfortune. People think that just because they're dealing with an insurance company that there is no human element. I can assure you, there is. Decide how much you want to make her life miserable before you move forward. She made a mistake, she apparently tried to make it right, does she deserve to be hassled?
|some quick points in response||wooden legs|
Jan 27, 2004 10:38 AM
|speaking from experience there's a huge difference between getting railed by an suv blowing through a stop sign, a car making an unsignaled left with a driver on a cell phone, or being clipped by someone's right side mirror who just doesnt't realise that bikes can ride on the shoulder and spilling hot coffee on yourself at mcdonalds. i find the comparison unreasonable and really insulting to injured cyclists like myself who were denied months of biking, working (i was a messenger), training, and who had to go through physical therapy and otherwise have their lives altered for months significantly by someone else's carelessness and ignorance of bicyclist's rights.
not that i was bitter, i rolled with my accident and recovery just like i rolled across the windshield of the sedan that rammed me, smoothly and in slow motion.
bill makes a very important point that undercuts most of the arguments for "just taking what the insurance offers", which is that premiums are not rising due to frivilous claims, at least according to the sources i believe, sources not connected to the insurance business which lends them some extra credibility in my opinion.
.i don't believe it's selfish or self serving to get compensation which at first look may seem outragous if you're not used to dealing with these sums (like 13k for a broken knee, my experience, especially when recovery is going well. but thinking to the future, although my knee is at 95% now, what about when i'm 30? 40? it may be weakened forever, knock on wood that it's not. think about your hand in 25 years when things like arthritis begin to complicate things. at least in 40 years if my knee is weak enough to impact my quality of life i can look back and say "this is the price i paid for my first house, or a beutiful spontanious week in italy with my girlfriend, or the thousands of hours of pure enjoyment on my custom made lugged steel frame from the local framebuilder," things as impossible to quantify as pain and suffering and therefore an even trade in my opinion.
also, arguing to be kind to the insurance industry because our hero happened to get a kindly speaking adjuster is like saying go easy in your policy on the khemer rouge, the representitive they sent was very diplomatic. it's their job. although i'm not saying that the adjuster isn't a good person, who they represent is not, the insurance industry $#@@$#s more people than it helps every year, that's how they stay profitable. i would not let myself be one of the ones taken advantage of.
|My experience........||Len J|
Jan 27, 2004 11:13 AM
|Hit by car while on bike:
broke back, collarbone & two ribs
Lost wages $5,000; reimbursed
Property, trashed bike & clothes; reimbursed reasonable replacement value of used frame + clothes.
Medical; $10,000; Reimbursed.
Pain & Suffering. Negotiated a settlement with Insurance Co w/o an attorney for $30,000 1 year after accident.
A Few thoughts. At the time, while all advice from friends in the industry (Insurance) etc was 3 times Medical as a target, I was frankly a little uncomfortable with this being appropriate from both a reimbursment and societal point of view. As Phillipe says, didn't I have some responsibility? Was my pain & suffering worth $30,000? All of these questions were running through my head. Nontheless I settled and depositied the check.
Now 18 mos or so after the accident, I have a different view. My shoulder will always hurt if I sleep wrong on it. My Back has become a weather predictor, getting some uncomfortable with barometric pressure changes that it's hard to concentrate.
What is my point? The older we get the more severe an accident is, the longer you have pain & suffering. I'd give the $30,000 back if my back & shoulder could be healed. I was hit by someone who panicked and made a hugh mistake. I am still paying for it.
The dollars may look big, but compared to a whole body they are peanuts.
As to my responsibility, I was (as the cop said) doing everything right. On the shoulder, aware & awake, not distracted. It shouldn't be dangerous to be alive. If I had fallen on my own then I think Phillipe has a point, otherwise, there has to be a penalty for irresponsible behavior or the world will go mad.
|WTF are you talking about?||terry b|
Jan 27, 2004 11:15 AM
|I wasn't arguing to be kind to the insurance industry, I was only offering that holding out for more money has consequences beyond jacking around corporate jackals with pots of money to burn. Especially if one is holding out because they think they deserve something.
My read of the original post was that he was fine, albeit his hand had not healed yet to his satisfaction. If he's lost function, or use, or if he has pain every day of his life then he should go for it. I'm only offering that there are other impacts to be considered. And since this is supposed to be a discussion group, I thought viewpoints were what was being sought.
|Holy crap, you're a messenger...as in the city? HA!||dctrofspin|
Jan 27, 2004 11:59 AM
|And you obey the laws of the road?? The bike messengers here in DC (and I've seen the same riding in NYC) are OUT OF THEIR MINDS with how they ride. Swooping through pedestrian crosswalks, blowing through red lights, hanging on cars for a tow, riding on sidewalks -- and that's the low level stuff. There isn't a cyclist on this board who obeys all the laws of the road and you know it. The only difference is that when a bike hits a car, the car owner ends up filing a claim against their comprhensive policy. You may have had a legitimate acccident and claim, but don't cop the victim routine on how well behaved cyclists are. There's plenty of blame and accounatbility to spread around.|
|Holy crap, you're a messenger...as in the city? HA!||wooden legs|
Jan 27, 2004 12:53 PM
|for one thing i live in pittsburgh, pa - a bit of a different climate than dc or nyc, messenger-wise. when i got hit i was going down a straight 2 lane road, no cars in front of me, no cars in back, at a steady 20 - 25 mph down a slight grade in the center of the lane. the opposing lane was bumper to bumper and at an unregulated intersection(no lights, stop sign on the side street to main street but not main street to side street) a driver in a sedan on a cell phone gunned his engine and made a fast left directly into me, unsignaled. driver's carelessness, cost me 4 months of work and life.
the one time i got hit blowing a red light it was entirely my fault, in the first 6 months of me working, and i apologized, bent my bars straight, made sure there was no damage to the car, and rode away sore, no questions asked. my riding is generally with the letter of the law, and all my friends who have been hit recently (6 total, this winter has been bad, pittsburgh drivers aren't used to this much snow) were following the letter of the law.
in all the recent examples i can give you the drivers have been more at fault, and mostly because of their misunderstanding that bikes don't belong on the road, which they DO. i think that cars separate you from the outside world and make it easier for drivers to ignore what's going on around them, not seeing or even considering that cyclists may be on the road, whereas bikes cannot ignore cars at all, obviously. in addition, when a bike hits a car, however that may happen, the cyclist can be injured or die and the car gets a scratch. when a car hits a bike, the cyclist can be injured or die and the car gets a scratch. i know that's an oversimplification, but because of that one fact i believe that cars have a great responsibility on the road that few people live up to, and to shift blame to cyclists, or even 50-50, in the event of an accident is almost always counter productive and incorrect.
not that i've never seen a messenger do something stupid and get tagged for it, and on a few occasions i've seen messengers do reckless things that resulted in situations that could have injured third parties. but in my messenger and non messenger life, 90% of accidents i've witnessed between bikes and cars are caused primarily by the car.
slightly off topic, but had to get that out.
|well said man||JPRider|
Jan 27, 2004 2:31 PM
|...staying off topic...living and training in boston during college basically put me on my bike every day in traffic for hours. and i can say all my near misses and non misses were the drivers' fault. you make some pretty good points in there.|
|Reasonable point, but..||dctrofspin|
Jan 28, 2004 6:29 AM
|I think you're completely unrealistic about the risk and responsiblity trade-offs. Of course cars have more share of the responsiblity, there's far more of them. But the fact is simply that the visual footprint of a biker on a bike is far different than that of a car. You have to factor that while riding your bike. Clearly in your case the car was at fault. If you'd been in a car, you'd likely been hit as well. But your statement about your riding being "generally" within the letter of the law is telling. Most arguing in this thread would not give the same slack of being "generally" in compliance to the driver of the car. And that's my point...if a bike rider blows the stop sign (a near 90 percent occurance in my experience around DC), he hits a car, the implications are far different than the car rolling the stop sign and hitting biker. I think it is only wise that bikers ride extremely defensively, understanding that people driving cars while talking on cell phones and drinking coffee make stupid mistakes. You may be morally right that it wasnt' your fault...but it shouldn't be a shock. BTW, we can all scream to the heavens that bikes should get equal billing on the roads, but that will happen when a monkey flies outta my...well, you know the saying.|
|I feel your pain, but, in the end, didn't the system work||bill|
Jan 27, 2004 10:57 AM
|(mostly)? It is no fun to be sued, I understand. It is also not a great party to sue someone, I assure you. Because you are assured of . . . nothing. And this whole thing about greedy lawyers -- if that case went on for three or four years and went through what you say, I'll bet that lawyer made about $25 per hour. At that rate, there isn't much left for greed. The client may have been unreasonable (I'll bet dollars to donuts it wasn't the lawyer; it almost never is), the insurance company may have been unreasonable, but, in the end, no one made a fortune.|
Jan 27, 2004 11:21 AM
|and all those months I spent wondering whether 27 years of hard work were going down the drain were wasted. Couple that with the months he wasted thinking he was going to end up with a nest egg to start his own business.
Lawyers? maybe - but I agree with you. It was much more likely that he thought it was a ticket to financial freedom and he found an attorney (interestingly, not a PI attorney) to try and get it for him. I ended up keeping things that I should not have lost given the nature of the accident. He ended up with his bills paid. Certainly not satisfactory from his standpoint and I feel robbed and sullied for losing lots of time due to the distraction.
|"One millon dollars" Dr. Evil nm||thegarzacomplex|
Jan 27, 2004 10:41 AM
|So you're out on your bike...||Uncle Tim|
Jan 27, 2004 10:56 AM
|...riding on the roads in a legal manner when some IDIOT slams a huge vehicle into you. The Insurance Company has agreed to cover the liability of this driver who, simply because he/was in a hurry or not controlling the vehicle as required by law, slammed into you, risking your very life. You could have very easily been killed. The insuracne company covers these morons because they want to make money. End of story.
If you are naive enough to think that the Insurance Compnay cares about your life or your health as an innocent victim of widespread stupidity, you are beyond naive. Your pain and suffering is real and has value. You need to be made whole.
Worried about higher insurance premiums? Maybe the Insurance Companies should stop insuring these terrible drivers who don't pay attention.
|Question for non-US lawyers and legal observers . . .||ms|
Jan 27, 2004 3:05 PM
|Philippe's response to the initial post has sparked an extensive debate about liability and responsibility for injuries. Based on the context of Philippe's response and the comments in the debate, I assume that most of the respondents are from the US. Given that some people who responded to Philippe, including me, are sympathetic to his views, it is hard to say that his views wholly are the product of his living in France. However, I also wonder how much of his views are the product of his living in a different legal system (i.e., civil law v. common law), his living in a country with a better developed social welfare system or other factors. My questions are: (1)How would other legal systems deal with the situation raised by the initial post? (2) Any thoughts as to why the differences exit? (3) Why is your country's system better (or worse) than the US system?|
|will this be on the final? (nm)||litespeedchick|
Jan 28, 2004 9:13 AM