Expert: Claims Guy - 2/4/2009

Question
Hello,

The day after Christmas, my mother and I were "after Christmas" shopping ... en route back to my home, we were hit head-on (although most of the impact was on the passenger side) by a 22-year-old drunk driver.  The driver was given a DWI and now as two warrents for an intoxication assault arrest as he is now "unlocatable."

My mother was driving, and of course, her vehicle was totaled.  The insurance company has already taken care of the loss, but we are still in limbo with the personal injury claim and have a few questions ... for reference, we are in Texas.

I was pinned inside of the vehicle, removed by the jaws of life, and was taken to the ER by helicopter.  My mother was taken by ambulance.

We are both still under the care of a doctor, and neither of us will be able to resume our previous life/routine for a while, if at all.

In addition to bruises and cuts - I suffered a fracture, sprain and ligament damage in my foot/leg and am still in a fracture boot.  My hand was broken in three places and will be permanently disfigured - I am in physical therapy now to regain mobility.  Not to mention, my air bag did not deploy, so the right side of my head went through the passenger side window, and I suffered a concussion and am still batteling major headaches. Also, my eyes were swollen shut and my head doubled in size ... I now have numerous small scars all over my face along with knots and facial sensitivity.  My job is 90% on-camera.  I was out of work for three weeks and still haven't been able to resume my regular duties.

My mom suffered a fractured sternum, three broken ribs, a severe "air bag burn" on her arm and has several bulging discs in her neck.  She is to see a neuro-surgeon next week and may have surgery.  As an elementary school teacher, her job has also been compromised as she was out for two weeks -plus holiday break - and will be out more for the surgery.

As of now, my medical bills are at $40, plus physical therapy and lost wages.  My mothers are at about $30, plus the pending surgery and lost wages.  The problem is that the drunk driver was only insured to cover each person for $25K.

Luckily, my mother has underinsured motorist protection for $25K.  However, once it is said and done, this may not even cover the bills - let alone pain and suffering.

I also have underinsured motorist protection for $25K, which my insurance company "opened" just in case.  

How is pain and suffering calculated?  I read that it is usually two to three times the medical bill total.  In my case, this is $80 to $120K which isn't feasible due to the policy limits.  If the bills aren't paid, then what?  Do people sue the insurance company?  We dont' want to sue anyone, but we also don't want to be stuck with - in addition to everything else - medical bills due to the carelessness of a drunk driver.

Also, we were told that - for me - my underinsured motorist (which, too, is at $25K) will kick in for a total of $75K for me to work with for pain/suffering, lost wages and medical bills.  Is this indeed a possibility?  Will I have to argue this point with an attorneys help?

Any information or advice you have is greatly appreciated.

Thanks,
Melissa  

Answer
Hi Melissa,

Sorry to hear about your accident.

You have a very serious injury and there are a lot of factors involved.  I would say on the surface, your case is probably worth well in excess of $75,000.

As for how the limits are calculated, I am not sure because I do not know Texas law.  You should call the claim reps for both your Mom's insurer and your insurer, and ask them to clearly explain the maximum you can get from all sources if the claim is determined to be worth more than $75,000.  They may hesitate to do this because they may not want to commit to a value so high early in the process, but if you push them they should be able to explain a "what-if" scenario.  If they won't tell you, don't accept no for an answer - ask for the supervisor and demand a clear explanation.

You mentioned something that caught my attention - the air bag did not deploy.  Do you know why?  Was this vehicle equipped with an airbag?  This is really important because if it was so equipped, then you have a HUGE product liability claim against the maker of the vehicle.  And this could solve your money problem.  If you are unsure whether it was equipped, do a google search to find out the standard equipment for this year model.  You could also go back to your mother's original sales invoice and it should list all equipment.

Regarding an attorney - the bad news is they will take 33% to 50% of your settlement/award, depending on whether the case goes to trial.  This is a lot of money.  The good news is they can help you sort this confusing mess.  Since your case is clearly worth more than the policy limits, I would not hire an attorney for that portion.  You should be able to get that on your own without much difficulty.  And the cost of the attorney fees will outweigh the benefit.

BUT if there is a claim against the manufacturer, you will definitely need an attorney for that.  If you hire an attorney, I would make sure the retainer explains they will not take any fee on the claims against your insurer, your Mom's carrier, or the DWI carrier.  if your case against the vehicle manufacturer is good enough, you should be able to find a lawyer who will do this.

Couple other sources of money -- your health insurer, although they may try to get reimbursed for some of the settlement money.  Also there may be PIP or MPC coverage on your policy or your Mom's policy.  Ask the claim reps about this.