Placing a Value on the Injury Case
It is impossible to provide a formula or list of reliable case values for various types of injuries. Victims of collision-related injury truly receive nothing more than a cause of action, or a mere right to sue. If another driver causes you injury, there is no formula or law that defines exactly what the other driver and all insurance carriers owe you. Instead, you are legally allowed to file a civil action and pursue a claim for all damages arising from driver negligence through a jury trial. If a jury grants a verdict in your favor, only then is the value of the case fixed. Until then, settlement negotiations are simply an effort to agree on what a jury might award.
Because of the nature of victims’ legal claims, the only way to fairly value your personal injury claim is to research trial results and jury verdicts throughout the state of North Carolina. Focus primarily on your local area and counties that have similar demographic patterns and similar jury awards. Certain counties are typically more generous than others. Under the North Carolina Civil Practice Act, the plaintiff/victim can file suit in either his or her own county of residence or in the county where the defendant/at-fault driver resides. When researching case value, look at the most favorable available trial venue and price the claim in that county.
Online verdict research can be conducted using Lexis/Nexis and Westlaw accounts. The North Carolina Verdict Reporter is a printed publication that can be accessed through subscription. This is the most thorough catalogue of trial verdicts reached throughout the state in all types of civil cases. Also, the Lawyer’s Weekly publication, which provides the most up-to-date reporting on the appellate decisions of the North Carolina Court of Appeals and the North Carolina Supreme Court, will also provide information about settlements and verdicts reached all over the state.
Proper determination of injury case value depends on careful consideration of the victim’s unique circumstances and on the full impact of all injuries on the victim’s life. There are certain value factors that are considered by insurance companies and by juries in the case value determination. Victims and lawyers should construct case presentations to highlight the following case value factors:
- Driver error involved — Egregious errors and intentional conduct typically lead to higher settlements and verdicts. For example, drunk driving or excessive speeding should increase settlement value.
- Collision dynamics — Head-on and roll-over collisions are the most frightening and dangerous. Care should be taken to highlight collision dynamics that would increase jury sympathy and awards.
- Driver-victim relationship — If the victim is the guest passenger in the at-fault vehicle and if at-fault driver is a close friend or relative, the jury may be less inclined to render a large verdict. However, in some cases, the relationship increases case value. If the at-fault driver is the defendant and a favorable witness on damages and the extent of suffering, the insurance carrier should tender a more generous payment.
- Emergency response — Careful and proper description of the collision scene and emergency response can enhance case value. For example, if fire rescue is involved or if life flight is involved, we would always see higher verdicts and settlements. Similarly, victim entrapment and use of the Jaws of Life for extraction would also be a compelling and sympathetic fact warranting higher settlement value.
- Collision consequence evidence — If the collision is particularly violent or horrific or if other victims suffered very serious injury, these factors would certainly be of interest to any jury. Be prepared to offer evidence that would help a jury distinguish more serious collisions from the fender-benders that typically occur.
- Victim collision scene experience — If the victim is trapped in the vehicle and receiving medical attention at the scene or if he or she is forced to be placed under full spinal protocol at the scene, these factors would certainly increase victim anxiety and should be carefully described to insurance adjusters and jurors. The ambulance or life-flight experience and the details of hospital care should also be carefully described and considered.
- Timing of first medical attention — Many collision victims are unaware of the extent of injury until twenty-four to forty-eight hours following the collision. While some victims are removed from the scene by ambulance or life flight, others may go directly home and later visit with physicians. Insurance companies always look at the timing of treatment. They perceive any delay as a suggestion that the injuries are minor or trivial.
- Nature of initial medical treatment — If the collision results in ambulance transport, hospitalization, and emergency surgery, the case would certainly be more valuable than one involving more conservative injury and care.
- Nature and extent of follow-up treatment — Please take your time to work with doctors until you have recovered from all injuries. Insurance adjusters always look at the nature and duration of medical care when they determine how much to pay for pain and suffering. An accident victim under medical care for two weeks would not receive as much compensation as the victim under medical care for six months. The nature and difficulty of medical care must also be considered. If medical care was primarily diagnostic testing, which revealed no injury, the award for pain and suffering would not be as high as for a victim with the same medical expense, where those expenses were for active clinical therapy and treatment.
- Non-medical evidence of pain — Medical records are typically the primary focus of adjusters and juries when determining the extent of the patient’s pain. However, the patient’s own testimony and testimony of friends and other witnesses also helps to establish the extent of the victim’s physical pain and emotional suffering.
- Victim’s family situation — If the injury and related limitations were particularly difficult because of the victim’s lifestyle or responsibilities, the award for pain and suffering would higher. For example, a single mother who is rendered unable to work and care for her children would be entitled to more generous compensation because of her particular difficulties.
- Amount of medical charges — As noted in the “billed versus paid” discussion above, evidence of medical charges has been significantly restricted by recent North Carolina legislation. The total amount of medical bills is a key factor that insurance adjusters and juries typically rely on when determining how significant the injury truly was.
- Extent of physical limitations and suffering — Detailed care should be taken to interpret and summarize medical records to highlight all evidence confirming the patient’s pain complaints and physical limitations. Juries today are most fair when their attention is focused on the extent of the patient’s pain, limitations on mobility and physical ability, the impact of the injury on quality of life, and on the practical difficulties arising from personal injury.
- Evidence of injury permanency — Careful legal inquiries to physicians will generate the best and most thorough medical evidence confirming permanency of injury and the potential need for future medical care. Since the responsible driver owes for all medical treatment for the balance of the victim’s life, thorough medical evidence must be offered to confirm all lasting symptoms, the likely prognosis and future course of all injuries, and the full cost of anticipated future medical treatment. Juries are typically quite generous with personal injury awards in cases involving permanent injury with significant physical limitation.
- Impact on employment and productivity — Income loss claims must be supported by medical evidence that confirms that lost wages and missed work resulted from accident-related medical disability. If a physician orders the victim out of work, this allows the victim to collect all lost earnings. Juries also are typically more generous in the award of pain and suffering compensation when they see that a productive individual is forced to remain out of work.
- Quality of evidence of physical injury — Photographs and video are the best evidence to show the extent of visible injuries and the course of healing. Take early steps to collect and preserve this evidence. It will generate significantly higher settlement offers and trial verdicts.
- Quality of legal representation and validity of trial threat — If the insurance company sees that the victim has legal counsel with a reputation for successful trial practice in the personal injury arena, they will understand that they are fully obligated for your losses. They will see that if they do not offer a fair settlement, your lawyer will simply file suit and collect the same amount through a jury trial. If this occurs, they not only pay what they could have settled for, but they must also pay a lawyer to defend the at-fault driver in court, 8 percent prejudgment interest on your trial verdict, and their own medical experts.
- Extent of any scarring or disfigurement — Permanently visible injuries result in higher settlements and trial verdicts. This is a relative value factor. A scar on a person’s face is worth more than a scar on his or her foot. A scar on a younger individual is typically worth more than a scar on an older person. Scars on women are typically valued higher by juries than scars on men. Thus, we look at the extent of scarring and disfigurement uniquely based on the victim’s age, gender, profession, and circumstances.
- Personality of defendant — If the at-fault driver is a drunk driver or is an otherwise unsavory character, this would typically result in a more generous trial verdict. If there are uniquely negative characteristics of the at-fault driver or the driver’s conduct, this should increase case value.
- Credibility and character of the victim — The jury must like you and feel comfortable with you before they will grant a generous verdict. Evidence of past criminal convictions is often admissible as evidence of victim credibility. This seems terribly unfair, but it is the law. When determining whether to go to trial or whether you could expect a generous verdict, you should be honest about any prejudices the jury might have against you. Similarly, an honored or respected professional or otherwise likeable and credible victim would likely receive a more generous verdict from a jury.
Obviously, many factors are involved when a jury decides on the verdict and value of a personal injury claim. Therefore, many factors are involved in settlement negotiations and discussions with insurance carriers. Creative case presentation highlighting all positive value factors will certainly motivate higher settlement offers and more generous injury claim compensation. Take the time to creatively tell your story, and make sure that you convey the full impact that the collision and all related injuries have had on your life.