What's My Case Worth?
Usually, the first question on the injured party’s mind is what is my case worth? This is difficult question to address because each case is different and has a different set of facts. Despite the belief of some insurance companies, there is not a computer program that you can input all your case information into and have it spit out an answer to the question of what your case is worth. There is only one hard fast rule—no two cases are exactly the same, and as such, no two cases are worth the exact same amount of money. There is really no answer to the question, but merely some factors to consider in determining the best outcome that you could receive based on your injuries and the damages that you suffered. Our attorneys at Kobs and Philley, PLLC rely on the following factors when evaluating a case, but we always strive to receive the best possible outcome for our clients even if not every factor weighs in our client’s favor:
Who is at Fault
Who is at fault is a question of whether liability (fault) on the part of the other party is clear, or on the other hand, whether there is evidence that you somehow, someway, no matter how small, contributed to the accident or your injuries. If the other party was clearly at fault, say a drunk driver collided with your vehicle while you were parked, then that would likely increase the value of your case, given that liability will be easier to prove and there is a real possibility of punitive damages. However, what if you were hit by a elderly teacher on the way to school who had never been involved in an any accident before and was truly apologetic. Do you think that impacts the value? You bet. Why? It's because the ultimate decision-maker(s) of what your case is worth is a jury. And each of those scenarios will impact the decision of a jury in awarding damages to the injured victim. It’s human nature. In the last example above, the teacher appears to be a credible witness and comes off very humble. Juries, like most people, are forgiving.
In every personal injury case, you have what are termed “hard” economic damages; these damages are also called your “special” damages. These are medical expenses, lost wages/wage earning capacity, and property damage. You can calculate these damages based on the bills and expenses that you receive. However, you also have more intangible damages, which include things such as pain and suffering, physical disfigurement, mental anguish and emotional distress and physical impairment; these types of damages are more subjective and are left to the sole discretion of the jury to determine. These damages depend on the evidence the jury hears, the credibility of the witnesses who testify, how the jury perceives those witnesses, and the particular facts of your case. There are several factors that can impact whether you recover these damages:
- o How seriously injured were you?
- o How quickly did you seek medical treatment following the accident?
- o Were you a compliant patient who treated according to the doctor’s recommendations, made the appointments, and worked towards returning to work.
- o Do you have any pre-existing injuries, i.e., did you have a similar injury in the past? Even though you may have suffered an aggravation of those injuries, the defendants are going to try to reduce your damages based on your pre-existing condition.
- o Can you document and articulate your pain and suffering and can others testify as to what impact this had on your life? It is very important to show the jury how your injuries have impacted your life, i.e., you may have been an avid outdoorsmen prior to the injuries, but have now lost the desire to get outdoors and enjoy life.
- o Are the jurors sympathetic to you and do they like you? Whether a jury likes you as a person and can relate to you without really knowing you has an impact your credibility with them. A jury that likes you is more likely to empathize with you.
Jurisdiction / Venue
Although where the accident happens is beyond your control, where your case is filed can have an impact on how much your case is worth. Just as different counties vote differently in elections, juries in different counties can award different amounts of money for the same case. Some juries are more conservative than others. An experienced trial attorney will know the reputation of different counties and can advise you accordingly.
The particular judge you have in your case can also impact the value of your case even if a jury decides your case. The judge is the referee of the Courtroom and makes crucial decision as to what evidence the jury hears, which can affect the ultimate outcome of your case.
Insurance / Assets
You have gone through the litigation process and received a favorable verdict. Now, all you have to do is request the check, right? Wrong! Even if a jury renders a verdict in your favor and awards you damages, you still have to collect the money awarded, which can require further litigation. If the responsible party has enough insurance to pay the verdict, this will not be a problem. However, many times you will find the responsible party does not have sufficient insurance to pay the total value of your case. Over 25% of the drivers in Mississippi have no insurance even though it is illegal in Mississippi to do so. When they have no insurance, you have to look to other avenues to receive compensation. Such avenues include the personal assets of the wrongdoer and even your own insurance policy to see if you have Uninsured motorist coverage as well as explore other avenues of recovery. This is where an experienced attorney makes a difference.
Liens / Subrogation rights of the Insurance Company
Although you may receive a certain monetary sum either through a jury award or settlement, that does not necessarily reflect the amount of money you will take home. For instance, if a insurance company or governmental entity pays your medical expenses, they are entitled to seek reimbursement for any amounts paid on your behalf from the party legally responsible for the accident. In the case of personal injury claims, there are certain liens or rights of subrogation you need to be aware of. The following is a list of liens or rights of subrogation that usually arise:
Health Insurance Subrogation Claims
All major health insurance companies have a contractual right of subrogation. If the health insurance carrier pays your medical expenses as a result of an accident you were in, then it has a right to recover the amounts it paid from the other party responsible for your injuries. Usually, the insurance company will put the insured on notice of their liens, so you must be attentive of this notice and forward it to your attorney.
Workers’ Compensation Lien
This type of lien is a “statutory lien” in Mississippi. By statute, the employer or workers compensation insurance company is subrogated to your rights for the amounts it paid on your behalf. In other words, if the workers compensation carrier has paid your wages and medical expenses while you were injured, they can recover the amounts paid on your behalf from a third party responsible for your injuries.
Government Liens (V.A., Medicare, Medicaid)
The general rule is that if the government paid for any portion of your medical care, the government has a right to be reimbursed if you recover any money for your injuries from another person. If the Mississippi Division of Medicaid has paid any portion of your medical care, it is very important that you put them on notice early in the litigation or else you could be held liable for double the amount owed if you settle your claim without their involvement. The same holds true for a Medicare lien except that the federal government enforces it.
As you can see, evaluating and valuing a particular case requires experience and a lot of knowledge. The insurance company of the other party has adjusters and attorneys with the experience to make sure the insurance company is well protected. Without an experienced attorney on your side, you will be at a serious disadvantage if you try to handle your claim yourself.
Further, various liens and rights of subrogation are a legal minefield for the uninformed. That is why you should look to an experienced and knowledgeable personal injury attorney to guide you through this process, not one seeking a “quick settlement” before the facts of the case are known.
It is important that when attempting to settle your case, you are aware of all “liens” which exist. If you settle without resolving any liens, you could be sued to recover the amounts paid on your behalf. You also could be held liable for fees and expenses incurred in having to defend the litigation as well as the insurance company’s costs, fees and expenses in having to prosecute the case. These costs and fees can add up quick, so avoid these pitfalls and contact Kobs & Philley, PLLC to have experienced attorneys working for you.
If you have any questions about your legal rights regarding your injuries or your loved one's injuries, please contact Kobs & Philley, PLLC for a FREE CONSULTATION.