by Guest » Thu Dec 02, 2010 07:02 pm
:?
Facts
10/09 Head-on collision - other driver at fault
Both vehicles totaled
Recd payment for my vehicle - $24k
$23k in medical bills
My Injuries - broken right wrist, arm, bruised sternum, soft tissues injuries to neck and shoulder. Right handed
Personal Injury claim filed and I obtained an attorney
My info
46yr married diabetic no pre-existing conditions or fractures
5/10 my attorney submitted medical records and demand package
7/10 at fault insurance adjuster requested all medical records for last 5 years.
8/10 my attorney submitted signed release forms to at fault ins adjuster.
9/10 my attorney checked on status, at fault ins adjuster stating they were still missing some records 1 - from my OB/GYN and 1 - from my optometrist.
When I called the drs listed above I was told they never sent payment for the medical records so they just waiting for payment from the at fault ins adjuster.
Is this normal I can't help but get frustrated and feel they are trying to just drag this out. I have been patient and ran around getting medicals records from doctors that have nothing to do with the injuries I suffered from the car accident ie., eye doctor come on . What else should I expect from the at fault ins adjuster
Facts
10/09 Head-on collision - other driver at fault
Both vehicles totaled
Recd payment for my vehicle - $24k
$23k in medical bills
My Injuries - broken right wrist, arm, bruised sternum, soft tissues injuries to neck and shoulder. Right handed
Personal Injury claim filed and I obtained an attorney
My info
46yr married diabetic no pre-existing conditions or fractures
5/10 my attorney submitted medical records and demand package
7/10 at fault insurance adjuster requested all medical records for last 5 years.
8/10 my attorney submitted signed release forms to at fault ins adjuster.
9/10 my attorney checked on status, at fault ins adjuster stating they were still missing some records 1 - from my OB/GYN and 1 - from my optometrist.
When I called the drs listed above I was told they never sent payment for the medical records so they just waiting for payment from the at fault ins adjuster.
Is this normal I can't help but get frustrated and feel they are trying to just drag this out. I have been patient and ran around getting medicals records from doctors that have nothing to do with the injuries I suffered from the car accident ie., eye doctor come on . What else should I expect from the at fault ins adjuster
Posted: Mon Dec 27, 2010 03:52 pm Post Subject:
Update offer made (what a joke)
On Friday (Christmas Eve) My attorney forwarded me a fax he received from the at fault insurance company...The offer was 10K "exclusive of PIP. What a joke. I suffered a fracture wrist and arm along with other injuries (see beginning of post) needless to say I rejected their offer.
Posted: Wed Dec 29, 2010 03:18 pm Post Subject:
Unfortunately, because you have an attorney involved, your state's Dept of Insurance cannot intervene on your behalf. This is a clear example of a violation of the Fair Claims Settlement Practices laws that have been adopted nearly verbatim from the NAIC's model legislation.
You can still file a complaint with your state's Dept of Insurance, and I encourage you to do so, because unfair claims practices can still be punished by the state, regardless of your private legal action. For example, United Healthcare is facing a multi-BILLION dollar potential fine in CA for more than 1,000,000 health insurance claims practices violations!
How were they discovered? Through a "market conduct" examination by the CA Dept of Insurance after the number of complaints from insureds, doctors, and hospitals began to skyrocket following UHC's purchase of PacifiCare.
Initially, the exam revealed some 10,000+ violations, then the continuing examination revealed more than 100,000 problems, and now it stands at more than 1,000,000. The maximum fine in CA for this is $10,000 EACH -- so do the math: $10,000 x 1,000,000 = $10,000,000,000. (The minimum fine can be as much as $5,000, so that's still a $5 Billion exposure.)
If it's happening in CA, it's happening in other states, too. It could put UHC out of business -- which is not the intent, and the reason that the fine will probably be far less than $5 or $10 Billion. But it will likely be in the hundreds of millions, plus restitution.
If your medical expenses alone were more than $23,000, your attorney will need to get a settlement of about $50,000 before you will net anything from this. 100% of the medical expenses are subrogatable to your health insurance company if it paid them, then the attorney takes his cut off the top, too, so that's another $15,000-$20,000, leaving you with about $5,000-$10,000 for your troubles.
That's the reason I initially criticized the rush to involve an attorney in a relatively small matter (if the amount involved does not have "TWO COMMAS" in it, it's a small matter). Everyone else here will win, except the injured insured.
Posted: Thu Dec 30, 2010 07:00 am Post Subject:
Max I obtained attorney a little after 5 months after the accident. I was concerned because of my pre-existing health conditions, ie., diabetic, diabetic neuropathy and frozen shoulder. Also my pain medication is Loratab. Communicating with the adjuster he made it seem like it was my fault because I shouldnt have been driving on pain medication. I was frustrated and didnt know what to say or not to say so I talked to a friend who was a lawyer.
With the insurance company offering me $10k I dont understand the part about filing a complaint. Are they suppose to offer a reasonable amount based on the total medical bills.? I am concerned that the at fault driver's policy limit is only $25k and that may be why the offer was so low...they havent submitted his policy limits to us. My attorney believed my claim should be worth somewhere in $40-50k due to my injuries and ortho doctor's notes regarding my fracture.
Posted: Thu Dec 30, 2010 12:19 pm Post Subject:
I obtained attorney a little after 5 months after the accident.
Way too soon, in my opinion. In an event that resulted in major injuries such as broken bones, you might not have even completed the course of your medical treatment, physical therapy, etc. in only 5 months.
Are they suppose to offer a reasonable amount based on the total medical bills.?
Yes. Your documented medical expenses are the starting point (along with the property damage which, interestingly, has already been paid) -- you would not have had those had the accident not occurred . . . unless they include expenses related to your preexisting conditions unrelated to the collision (which is the reason they needed your medical records, including the OB/GYN, strange as it may appear).
One of the "unfair claims practices" that some insurance companies violate is "Compelling insureds to institute litigation to recover amounts due under an insurance policy by offering substantially less than the amounts ultimately recovered in actions brought by the insureds, when the insureds have made claims for amounts reasonably similar to the amounts ultimately recovered." (The language varies slightly from state to state.)
That could be going on here, and if it is, it's what you would complain to the Dept of Insurance about following the ultimate settlement of your claim if it comes down to actually litigating the claim. Has a civil suit even been filed by your attorney at this point? Or is he simply making phone calls and writing a few letters?
I am concerned that the at fault driver's policy limit is only $25k and that may be why the offer was so low...they havent submitted his policy limits to us. My attorney believed my claim should be worth somewhere in $40-50k due to my injuries and ortho doctor's notes regarding my fracture.
Your attorney should already have determined, by inquiry or discovery, what the at fault party's policy limits are. But I can tell you this, from the simple fact that you received a $24,000 settlement for the value of your destroyed vehicle . . . the Bodily Injury liability portion of the policy is probably at least $50,000, maybe even $100,000 or more.
There are only eight states with $25,000 property damage minimums (MS, NE, NH, NC, ND, RI, SC, and SD) and they are equal to the minimums for bodily injury (NC's BI minimum is $30,000). In any other state, if the at fault party was carrying only minimum liability limits, you never would have received a check for $24,000 for your totaled vehicle if the insured carried only minimum limits as you are thinking. They certainly don't buy minimum PI limits and higher PD limits.
Why? Because people who only carry minimum limits are concerned only about paying the least amount for their insurance. They almost never consider the financial effect of causing more damage than that, and they never ask what the cost would be for higher limits -- although they would be surprised to learn how little it actually adds to the cost.
Communicating with the adjuster he made it seem like it was my fault because I shouldnt have been driving on pain medication.
If the adjuster even suspected that your medication played a part in the collision, you would still be arguing over who was really at fault in this incident. But apparently this is not the case at all.
From my vantage point, your attorney does not appear to be aggressively pursuing the $50,000 that he has led you to believe your claim is worth. You need to ask HIM what the problem is. He stands to make $16,700 at that 33% level, so what is he doing to earn his $6600 and even presenting a $20.000 offer to you (other than his professional responsibility to inform you of what the insurance company is offering)? He would still walk away with more than you after your medical expenses are accounted for.
This is another point of contention I have with attorney's fees. Subrogation amounts should come off the top BEFORE attorney's fees, but they never do. It would look like this if they did:
$50,000 Settlement minus $23,000 medical expenses = $27,000 net minus $9,000 attorney's fee = $18,000 to the client. A true 33/67 split.
33/67 . . . that's what people believe will happen when the attorney says, "I only take 33%." When it comes off the top, compared to what the client receives, it's more like 60/40 (or worse).
So if he's going to flinch and tell you to accept a $20,000 offer, then he first needs to negotiate a 60% reduction in the subrogation amount with your medical insurance company, too.
If this was my claim, and without the need for an attorney, I would simply tell the adjuster what I wanted: 100% of my medical bills paid and an equal amount of money for me. And wait for them to counteroffer. Then I would repeat my demand. And wait for them to counteroffer higher than before. If this went on for more than 12 months without a resolution following the end of my medical treatments, then I might consider something more drastic, such as filing a civil suit against the at fault party.
You have to give the insurance company some room to negotiate. Once an attorney is involved, things become more adversarial, and the negotiations often come to a grinding halt. "We'll just wait until they file a suit," may become the attitude applied to the claim.
I'm not trying to justify that attitude, by any means. It's just a fact of life in the insurance company vs attorney-plaintiff world. If the case against their insured is strong, the insurance company will settle long before going to trial, if it's not, then they'll wait and see what the plaintiff may be willing to settle for the moment before the start of the trial -- that will delay the payment of the claim by months or years. Or they'll take their chances in front of the jury -- which will also delay the payment of the claim by months or years.
Most litigants are not that patient, and many attorneys are not that confident in their ability to try a case. So they accept the insurance company's last-minute settlement offer, which is not usually all that much more than the initial settlement offer. And it violates the intent of the unfair claims practices laws.
So here you are, frustrated (and not without good reason), 14+ months after the accident, 7+ months of it with attorney representation, and nothing much is happening. The "game" is going entirely according to the plan. Are you ready to give in? Or are you willing to take it as far as necessary to get what you believe you deserve? What is your attorney willing to do? Will he take it as far as you want to? Those are the questions you need to answer/have answered.
Posted: Thu Dec 30, 2010 01:08 pm Post Subject:
I finished treatment and did not know that I would be having this aching pain and crackling sound forever
As a follow on to an earlier post of yours, I can tell you this, I broke my elbow in 1978. Although I no longer have any associated pain (that disappeared within a few months of the injury), my elbow joint still "pops" on a regular basis. Probably always will. They say it's simply a buildup of gas in the joint space -- but it sure doesn't feel like it.
If you are still having some residual effects from the injury, all the more reason not to settle for the low amount of the current offer. It's all going to boil down to how much stamina you have. Stick to your guns and fight for what you believe is fair. And don't permit anything less from your attorney.
Posted: Fri Dec 31, 2010 01:08 am Post Subject:
Max I spoke with my friend/attorney and he said the weaknesses in my case are as follows:
1. The doctor's late diagnosis of my fracture (fractured not detected until 1/10 after a MRI was done. Prior to MRI had 3 xrays that did not show a fracture so he sent to me physical therapy until I complained about the pain then he ordered an MRI on 12/30/09. So for approximately 3 - 4 weeks I attended physical therapy with a fractureed wrist. lol
2. Being a Diabetic resulting in a longer healing time from my injuries.
The strengths
1. No disputing the liability
2. Length of treatment nd type of injuries I sustained
His game plan is to send a demand letter for "low $50 to smoke out the at fault policy limits". My lawyer is concerned about the at fault policy limits being $25k as well. He has not subpoened the policy limits I guess is how you call it. He has just corresponding through faxes and letters. He does say that this insurance is hard to deal with and the adjuster is trying to drag it along.
Other facts:
My outstanding medical bills are $16k ($10k paid by PIP) however no lien has been placed on my settlement to date.
I live in Kentucky and the at fault driver is 74yrs old and the vehicle he drove that hit me was part of the Toyota's recall.
Everything you said makes so much sense and I am beginning to think I was wrong in my judgement on me not being handle the claim on my own even with my pre-existing conditions....
Posted: Fri Dec 31, 2010 03:34 am Post Subject:
Kentucky's auto liability minimum limits are $25,000 per person/$50,000 per accident and $10,000 property damage. If the insurance company paid a $24,000 vehicle damage loss, it is almost a given that the bodily injury limits are much higher than the minimum 25/50. My guess is at least 50/100/25, maybe even 100/300/50.
I'm not sure if PIP in Kentucky can be subrogated -- someone else with better knowledge may weigh in on this. If it cannot, then the minimum you need to settle for is $25,000 so your lawyer can have his 33% and the health insurance company can have its 100%. It would still leave you with nothing.
Prior to MRI had 3 xrays that did not show a fracture
This is not unusual, and should have no bearing on the outcome of your claim if there are no other possible explanations (other medical events, falls, etc) in your medical records (certainly not in your optometrist or OB/GYN!).
Being a Diabetic resulting in a longer healing time from my injuries.
Well, that, too, should have no diminishing effect on your settlement. It should actually be in your favor.
He has not subpoened the policy limits
Well, I wonder why not? If he knew that the insured had 100/300 limits he could be demanding much more and expecting more of less than that. The insurance company is playing him as much as he is playing you. And all of that is unfortunate.
Posted: Fri Dec 31, 2010 06:23 am Post Subject:
Wow I wish you were my lawyer :) Guess all I can do is sit and wait and now become an advocate on hiring an attorney as the last possible option.
Posted: Fri Dec 31, 2010 06:31 am Post Subject:
I hate to tell my lawyer how to do his job but I guess I better..I am going to ask him to subpoena the policy limits instead of sending a demand letter for $50k. If his policy limit is 100k and he comes in demanding 50k they counter with 40 or 30 they will be very happy I imagine. Thanks Max for the input and your expertise.
Posted: Fri Dec 31, 2010 04:17 pm Post Subject:
I would simply ask, "Why don't we know what the policy limits are? Aren't we entitled to discovery on this?"
But at this point, there may not have been any civil suit filed, so a formal discovery request would not have been made. Your attorney may never have inquired directly about the policy limits, so the principle of "don't ask, don't tell" is at work.
If, for example, your attorney filed a civil suit against the at-fault driver for $100,000, and the policy limit was $50,000, you can bet that, in defense of their insured, the insurance company would come back with that information to see if you were willing to settle for that lesser amount, so their insured is not exposed to the amount that exceeds the policy limit.
Demand letters are fine and a necessary step prior to filing a civil action, but they carry little force. Civil suits mean that there could be a trial and that the insured could lose, resulting in the insurance company paying the award up to the policy limit.
Now, here's your real issue: unless I am mistaken, the civil statute of limitations for personal injury in Kentucky is ONE YEAR. Your attorney should have known this and acted accordingly.
Your injury occurred in October 2009. If a civil suit was not filed within 365 days of that event, you probably cannot file such an action now, (unless it is possible to mark the date your fracture was discovered as the result of the MRI as the point at which the statutory time limit begins to run, but that may be stretching things too much). Now you're at the mercy of the insurance company. They'll eventually pay, but they know their insured is no longer exposed to a civil action, so why not drag things out as long as possible . . . see if they can starve you into submission, so to speak?
It doesn't matter that the insurance company delayed things by requesting medical records or other information (which is their right, and even if the delay was exacerbated by their failure to pay for the records) -- in fact, that used to be a common, but unlawful, tactic employed by insurance companies with their own insureds, let alone third parties . . . delay just beyond the statute of limitations and then deny the claim. No payment, no recourse -- until the "bad faith" lawsuits began to be filed against the insurance companies and the unfair claims practices statutes were enforced.
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