Settlement: FAQs

To increase the chances of getting a worthwhile legitimate settlement, you should get immediate medical assistance. If there is the availability to be taken to a hospital by first responders or an ambulance, certainly avail yourself of that opportunity so that you do not suffer any more harm. Follow medical advice and treatments to help you heal and recover, including physical and occupational therapy, rehabilitation, psychiatric care, etc. Obtain copies of your medical records that document your injuries, treatments, medications, therapies, and surgeries.

It is difficult to accurately predict what your case is worth until it can be determined how you are recovering and all information regarding your situation has been evaluated. Some factors that determine value include:

1. The amount of all your medical and hospital bills and other damages that lawyers call “special damages.” These are specific items that can be calculated.
2. Losses to income and employment benefits resulting from your injury. This also may include loss of future work horizon.
3. Whether you were hospitalized. Whether you are facing future hospitalizations or medical care.
4. The extent of liability of the potential defendant and whether you were partly at fault. If you contributed to the accident, your ability to be fully compensated may be reduced under Pennsylvania law. Pennsylvania also has a law dealing with joint tortfeasors, which can be very complex and affect what a person is entitled to.
5. Whether there are quality witnesses who can testify at a trial.
6. How much pain, suffering, loss of life’s pleasures, disfigurement, inconvenience and loss of marital relationship is involved.
7. Which insurance company is involved and the amount of insurance available for the accident.
8. The jurisdiction where the case will be tried and the jury pool drawn, as some juries are more generous than others.

• Whether medical and hospital treatment is completed. What is expected in the future.
• Pennsylvania has certain immunity laws, depending upon the issue involved. There may be caps on damages, such as under the Political Subdivision Tort Claims Act and the Commonwealth immunity statute.
• There are many complex laws which factor into what a person can collect and what they can keep or may have to repay to others.

Your settlement may compensate you for:

1) Monetary (economic) losses that will include your:

• Medical and hospital bills
• Physical therapy
• Allied expenses
• Lost wages, income benefits and future wage horizons
• Property damages
• Reparations for any specific monetary and other losses stemming from the accident and your injuries.

2) Non-economic losses for pain and suffering, loss of quality of life, loss of life’s pleasures, disfigurement, and other damages. Your spouse may also have what is called a “consortium claim,” which is a claim for loss of society and services, including sex. In making a settlement offer, the insurance company will keep track of these factors and also consider how permanent your injury is, the quality of evidence against their insured, the quality of your witnesses and their witnesses, and any contribution of liability on your part. The insurance company may also consider whether another party is negligent. Should your case go to trial, the judge and jury may consider these factors as well.

No, there is no minimum or maximum settlement amount in personal injury cases in Pennsylvania, except for a cap on punitive damages of two times the amount of actual damages. Punitive damages are sometimes imposed by the court as a deterrent for repeating the injury-causing behavior. However, Pennsylvania has a “modified comparative negligence rule,” where compensation is reduced by an amount equal to your percentage of fault. There is a cap in Pennsylvania on damages against the Commonwealth and “local agencies.”

While it may be difficult to determine the value and anticipated time period when you first consult an attorney, this will become more evident as the case progresses.

It may take as little as months to as much as years to go to settlement or trial, depending on the circumstances of your case. Often, your lawyer will wait until you have completed or come close to recovering from your injury before trying to settle. In many cases, bills and treatment continue for a long time, and it is difficult to predict future costs that will affect settlement.

How long a case will take to settle or go to trial also depends upon the county and jurisdiction. Some courts are faster than others. Some cases have to be brought in federal court, and some in state court. This can also make a big difference.

The question of subrogation, called “reimbursement” under the Employment Retirement Income Security Act, is extremely complex. Sometimes, the insurance company has to be reimbursed out of personal injury settlements and other times not. There is also a question as to whether government agencies have to be repaid, such as Medicare, on the federal level. Cliff Rieders has written a book which addresses many of these issues. You need to have a lawyer who understands the question of repayment and when they can properly and legitimately be avoided or reduced.

First, your lawyer will investigate and do research on your case and monitor the progress of your recovery. Then, when it seems appropriate to attempt settlement and a range of the amount has been determined, your lawyer will send what is called a “demand” letter to the insurance company that summarizes your claim. The insurance claims adjuster will meet with supervisors to obtain settlement authority and then respond to the letter and negotiate with your lawyer.

The insurance company will rarely agree to pay the initial demand, but it should still be reasonable, as an unreasonably high settlement demand will often delay the process and possibly make the insurance company refuse to make any offer at all. Therefore, it is most important that you have an experienced lawyer who can determine the proper amount to ask for and negotiate the best offer.

The situation may be similar when there is no insurance company involved, or there may be a different route to take. Many cases these days are subject to alternative dispute resolution, which means that mediation or arbitration may be tried. In some cases, arbitration is absolutely required by a contractor agreement you may have signed. It is particularly concerning with respect to nursing homes. When arbitration is imposed and when it is not required is a matter of great complexity. You should have an attorney who knows the law.