Expert: Doctor Settlement - 4/30/2009

Question
Fell 2yrs ago in N.C. slipped in liquid (olive juice)on orange tile floor at restaurant while walking around deli case and my foot slid into employees foot that was coming toward me, due to the liquid. Letter of exit interview from employee and restaurant stated he spilled the juice earlier and neglected to get it up. Two other witnesses at the bar witnessed the fall, but they also did not see the liquid until after the fall. I have a liability acceptance letter from the insurance company, and an advance of $42,400 on the settlement towards lost wages and incidentals. In short, I have suffer a permanent disability in a claim in which I have no negligence and the liability of the insured is well-established. My medical bills at this time exceed $95,000 with foreseeable possibilities of future surgeries,pain medications and physical therapy along with any unforeseen issues,this total will unquestionably increase. I am unable to enjoy the enjoyments of life anymore.

Broke femur in left leg still not healed yet, Have gone through 3 surgeries and physical therapy.(with possible future surgeries per doctors)   Life has been devastated gone from walking upright to walking with cane and most recently a motorized wheelchair.  My husband and son along with other family members have been helping and assisting me with every day life activities.  My son has read most all of your letters and responses and other websites with personal injury info but we have received the most from this one and settlementcentral.com  to negotiate with adjuster. (would love to fax/e-mail just correspondence letters with and if possible for review)

Everything has been moving along until the most recent letter and conversation with the adj, states that to get anymore on settlement we would have to file suit. We have consulted some attys but they want the whole pie instead of just a piece. Although we feel she is not taking every aspect of my injuries.

things we have:
photos of Scares from surgeries, photos of injury scene,notes from conversations with adj,formal letter of acceptance of liability and settlement offer,Doctors letters on past,present and future of injury,Statements from witnesses, Settlement offer of $286000 everything inclusive for release from me and husband.

Questions:
1.She has stated should we file suit they will not be stipulating to liability despite advancements made in good faith and liability would be defended and contributory negligence will be asserted. Is this possible?
2. We are going to use the Last Clear Chance Doctrine as a defense Is there another defense?
3.We have made 3 counteroffers and she says she will make no more at this time and she will wait for suit to be filed. What should we do next Pre-suit mediation,
or just file suit, trying to ADR but not sure which or if she will?(will it look bad on them if they say no)

3. One other little thing her signature on return correspondence is same name but is signed by two different peoples writing what is your thought on that

Respecting and Valuing your response:
Maryanne


Answer
Hello again, Maryanne,

Or maybe I should just say Hello for the first time since I see that you have not yet read my answer.  Since I saw the seriousness of your claim and the untenable position you are in, I jumped on your question and I gave you over two hours of my time and still got an answer posted for you in less than 24 hours after you asked it.

But because you and your family were such thorough researchers, including the comment on how helpful www.SettlementCentral.Com is in your insurance claim, the fact that you have not even read my response these ten days letter gives me worry that your condition has worsened and you are undergoing some serious pain right now.  

I hope your doctors are able to give you some relief.  As I mentioned in my first answer, this is a lifelong disability.  And since you only get one shot at it, I am insisting that you hire an attorney.  

I do hope that when you read my first answer you do take to heart my admonition that the scolding I gave to you is for your own good and MUST NOT be taken personally.  Proper claim resolution for you trumps any ruffling of your ego feathers, Maryanne, and so please understand WHY I did not want to sugarcoat my response to what is truthfully an emergency.  Sugarcoating would have given you no reason to abandon your present course.  But you MUST not continue on, and so it was necessary to speak most frankly in order to demonstrate the reasons why you do not belong in the game that is going to be played at such a high level.

Shock has value for you in this instance since I want you to focus your family and yourself on the techniques I am teaching on how to hire an attorney when you already have a large settlement offer in hand.


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Here are THREE NEW TOPICS that I left out of my answer and I want to impart today.

FIRST is to interview the attorney properly to MAKE him state a high value for your claim.

SECOND is to SPRING YOUR TRAP and use that high value he just stated to show how reasonable and rewarding your fee arrangement is going to be for both settlement and trial.

THIRD is to offer an additional fee for subrogation moneys he is able to defend and recover for you.

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FIRST is to interview the attorney properly to MAKE him state a high value for your claim.

By this I mean do NOT make the appointment by blurting out the fact you already have a settlement offer in hand.   Do NOT start the conversation by announcing the fact you already have a settlement offer in hand.

Take CHARGE OF THE ATTORNEY FEE INTERVIEW by assuming the position you are there to hire the attorney as if from the beginning of the claim.  That is not being deceptive, since if you like the attorney and if he does cooperate in his fee arrangements then you WILL hire him.  BUT he first must demonstrate some flexibility and fairness in his fee arrangements.   Let the attorney's sales technique WORK AGAINST HIM.  


(A) Get the attorney to place a huge value on the claim.  
He will NOT give a huge value if he knows that you already have an offer.  So before you disclose the fact that you have an offer, get him to commit to a huge value for the claim.  Why?  This will inure to your benefit, as you will see below.


(B) Make him bait his hook with a high value for your claim.
In his efforts to land a client, the real estate broker who mentions the highest value for the house will most often get the listing.  Are you going to list with the broker who insists your house has a value in excess of $500,000, or the one who will not list it at even $450,000?  

Attorneys know that clients seeking representation want to hear a firm conviction that their claim does have SIGNIFICANT value. Hence, as bait for their hook, most attorneys will be tempted to state a larger value for the claim than they think it is worth.  They hope that the potential client will be attracted to their optimistically high value.  They can always squirm out of the optimistic figure later by claiming that the facts—especially the medical opinions—did not come out as they had anticipated they would.

Soooo, in your case, ask him about a vocational rehabilitation expert and a report from an economist.  Go ahead and tell him that you will commit to the costs of such reports (although you might need him to front some of the money).

If you were employed and you have lost your living wage, or even if you can only part time work or on light duty, your award valuation on the economic loss alone will be AT LEAST $200K TO $500K.  And even if you were not employed, loss of all your work at home has valuation in excess of $100K.

Make the attorney get into those discussions and watch his fee calculator start ticking in his brain.


(C) Let the attorney's sales technique WORK AGAINST HIM.
Once the attorney has committed to a high value, you have HIM hooked, instead of the other way around.  For example, in your case, where the offer is already $286K, all inclusive, one could reasonably expect an attorney who considers the economic report of loss to put a value on the claim of $500K to $750K.  

Make him defend the high figures and show that he really believes that somewhere around $600K is an average value of your claim.  


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SECOND is to SPRING YOUR TRAP and use that high value he just stated to show how reasonable and rewarding your fee arrangement is going to be for both settlement and trial.

NOW, SPRING YOUR TRAP.  Have ready those calculations that I gave in my first answer wherein we motioned a fee of 40% on what he gets above the existing offer, or one-third once the settlement amount reaches three times the existing offer (i.e. three times $286K equals $858K).  Tell him that this offer would increase to a flat one-third on the entire sum recovered in the event he has to go to trial.  But the 40% on the increase is intended to bring the case to the morning of trial, including all preparations, including participation in mediation or a court sanctioned settlement conference.

So, have ready on a piece of paper three calculations to show a settlement

Higher fee if he has to go to trial.
Explain WHAT you want the attorney to do. You want him to perform all steps up to going to trial for the fee you are proposing.  Tell him that the adjuster will offer more with the lawsuit, and that alone will pay him handsomely for just filing a lawsuit and sending one letter.  He is going to get an easy fee of $5,000 for a few hours of work since it is reasonable to expect an immediate response of a 9% increase, or $25K.

Tell him that you expect him to go through all of the steps preparatory to trial, including discovery (i.e. depositions, interrogatories, meeting with witnesses and doctors, etc.), motions practice (various motions brought by either side), and mediation or court-sanctioned settlement conferences.  

With an economist's report in hand that shows a minimum of $150K loss, one would expect the mediation or settlement conference result to be no less than an offer of settlement of $400K.


Hence, have this spelled out in the paper you bring into the interview.  $400K less the offer of $286K, leaves $114K, times 40% equals a VERY HANDSOME fee of $45,600 for doing nothing of much in terms of trial work.  

How can he refute your figures since you came in UNDER his valuation by a full $100K?  


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THIRD is to offer an additional fee for subrogation moneys he is able to defend and recover for you.  Add sugar to his fees by giving 15% for all money he saves you on subrogation.  

It is not clear who has paid for your medical expenses to date.  If you have any insurance that has paid for your medical or wage loss to date, then your own insurer will own a subrogation claim versus your award.

Introduction to Insurance Subrogation— http://www.settlementcentral.com/page0459.htm Forced Payback to YOUR OWN Insurer From Your Personal Injury Award.  If he has to participate in any arbitration regarding subrogation, increase the fee to one-third of any sums he saves.

A defense of subrogation IS POSSIBLE HERE since the tortfeasor is alleging your were negligent to some high degree.  Have the attorney acknowledge that if you are comparatively negligent, then the medical payments or wage loss payments made by your own insurers are NOT DUE BACK to the insurer to the extent of your comparative negligence.

Hence, MAKE THE ADJUSTER EXPLAIN IN WRITING HER CLAIM THAT YOU WERE PARTIALLY AT FAULT FOR NOT AVOIDING THE ACCIDENT.

In summary of the subrogation issue: if he writes a letter or two and obtains a reduction, then he gets 15% of the amount saved.  The fee increases to one-third for arbitration.
Once he gets though those steps and assuming that mediation or a court-sanctioned settlement conference does not produce a satisfactory result, then tell him you will pay him the full one-third if he actually has to go to trial.  Let him know that you will be willing to take a reduction in value rather than go to trial.  



OK, Maryanne, that is about it.  I trust that extra my time here has produced some new information that has been of value to you, and thus I would respectfully request that you take the time to locate the FEEDBACK FORM on this site and leave some feedback for me.

Best Wishes,

Dr. Settlement, J.D. (Juris Doctor)
http://www.SettlementCentral.Com




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Hi Maryanne,

I am so sorry to hear of these life-long problems that you are suffering.  It is tough to have acceptance of such injuries when someone else caused them and now they are trying to escape paying their fair share.

I am going to have you try once more in writing with the adjuster and then—NO MATTER WHAT THE ADJUSTER ADDS TO HER OFFER—you will make a deal with an attorney to take over under terms that I am going to give to you below.

First, however, let's hand out a compliment on your family working together on this and all of the research you have done as a team.  Of course I do appreciate the compliments to Dr. Settlement's writings on allexperts.com AND for the statement that the insurance claim advice on SettlementCentral.Com was the best information.  

But next comes the scolding, so I am not sure when I get done with you that you will, in fact, "respect and value" my response!  Like a parent telling the child about to get spanked, "this is for your own good."  And because what I am about to do is to show how ineffective you have been, I will give you one and one-half hours of my time (hey, I did not advertise to be the fastest typist you know!).  I am also motivated to give you a ton of free time because you are suffering so much and it is obvious that you are lost in this entire process of negotiations and making a claim at such a high level.

Maybe you will thank me once you recover from the thrashing I am about to hand out to you.  I am going to work real hard to help you, so do not take my scolding personally.

Are you ready to be admonished?  Here we go, then, Maryanne.

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I believe you are abusing both allexperts.com and SettlementCentral.Com by relying upon us for information on a claim that clearly requires an attorney.  NO EXCEPTIONS in a premises liability claim.  

It is true that sometimes a pro se claimant can use the members' side materials at SettlementCentral.Com to settle claims valued in excess of $100K, but those times are limited to where the tortfeasor has policy limits substantially less than the value of the claim and no assets worth pursuing.  But I am not sure you ever became a member since I did not find "Maryanne" among the first names of members in the past two years.  Perhaps your husband joined?  If you are a member, by all means use the "contact us" form and identify yourselves and we can perhaps direct you to some additional helpful pages on the members' side that deal with how to respond to a "this is my last offer" tactic.

Be advised that neither allexperts nor SettlementCentral.Com was designed to help people in your situation where there is no policy limit and the claim is valued way in excess of $100K.  Yes, we have great success stories of self-help insurance injury settlements using www.SettlementCentral.Com proven information and forms and letters.  But unless there is a low policy limits situation, we admonish members to use professional help in really big claims such as yours.  

People who play that game at such a high level need to have a bit of understanding that any errors are greatly magnified in terms of reducing the value.  And of course, only an attorney can understand the nuances of the evidence you are producing and thus prepare for trial.  It is the threat of trial that will produce the money, NOT the goodwill of the insurer.  

Hence, there is an unacceptable naivety and hubris about folks who eschew professional help when there is so much on the line.  YES, SettlementCentral.Com IS very effective in teaching insurance claim settlement techniques.  BUT NOT in large value claims since the risks of loss of $$$ FAR OUTWEIGH the costs of hiring an attorney.

OK, I am off my soapbox now, Maryanne, so let's get on with your questions and then I will follow-up with my suggestions.  This forum has no HTML so I will have to use ALL CAPS in MY ANSWERS to distinguish them from your questions.  OK?  Here we go.

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Question #1. "She has stated should we file suit they will not be stipulating to liability despite advancements made in good faith and liability would be defended and contributory negligence will be asserted. Is this possible?"

ANSWER: THIS IS EXACTLY RIGHT.  THE FOLLOWING FACTS THAT YOU MENTIONED ARE NOT ADMISSIBLE: "Liability acceptance letter from the insurance company, and an advance of $42,400 on the settlement towards lost wages and incidentals."
However, I would NOT WORRY too much about the liability issue.  Here is what IS ADMISSIBLE: "Letter of exit interview from employee and restaurant stated he spilled the juice earlier and neglected to get it up."  Also the witness statements.  

Your attorney will not accept any reduction in the claim value for challenges to liability.

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Question #2. "We are going to use the Last Clear Chance Doctrine as a defense. Is there another defense?"

ANSWER: THIS IS A BIT CONFUSING IN THE WAY YOU FRAMED IT.  I SUPPOSE THAT SHE IS SAYING THAT YOU DID IN FACT HAVE AN OPPORTUNITY TO AVOID THE FALL IF ONLY YOU WERE EXERCISING DUE CARE AND CAUTION IN WATCHING WHERE YOU WERE WALKING.  This comes under my category of: So what—no big deal.  EVERY defense raises these issues. Your attorney will fight this effectively.

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Question #3. "We have made 3 counteroffers and she says she will make no more at this time and she will wait for suit to be filed.  What should we do next Pre-suit mediation, or just file suit, trying to ADR but not sure which or if she will? (will it look bad on them if they say no).

ANSWER: ALL OF THESE QUESTIONS REFLECT YOUR IGNORANCE OF THE PROCESS OF MAKING A BIG CLAIM AND PREPARING FOR TRIAL.  AND HENCE, YOUR QUESTIONS ALONE SHOUT OUT YOUR NEED FOR PROFESSIONAL HELP.  Same thing with your negotiating strategy.  You have lost any hope of leverage (see below) if she is dismissing you in this fashion, and that reflects a fundamental misunderstanding of the negotiation process.  

Unless you are a member at SettlementCentral.Com and used our negotiation tactics with "second salvo" letters to respond to offers, it is likely you have compromised your position vis-à-vis what an attorney would have done.

What good would it do you to go to pre-suit mediation or ADR?   These questions show that you have no understanding of the battle you are in.  You think that these people get paid to be fair?  They get paid to abuse pro-se folks like you and then they get their photos posted above the label: "adjuster of the quarter" because they gave you a royal screwing and you felt good about the end result since it was done in mediation or ADR.  

Think about that for a moment, Maryanne, and you will see how foolish you are if you continue on your own.  You are not alone, though.  The insurance industry has spent a fortune of your premium dollars trying to propagandize the citizenry that they are "like a good neighbor" who puts you "in good hands".  BULL!

They are one of the most despicable businesses in the country and they will NEVER help you one bit beyond what they think they can get away with.  The larger the claim, the more difficult it is to get justice.  Once you get above $100K, the "goodwill" aspect is entrirely gone and they will pay ONLY TO THE DEGREE YOU PRESENT A RISK.  

Now, you can clearly see how confused you were.  The adjuster is telling you just that: right now you are no risk at all.  And you are asking me whether going thru mediation or ADR will make you any more of a risk shows that you are naïve and in need of a fighter on your side.

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Question #4. "One other little thing her signature on return correspondence is same name but is signed by two different peoples writing what is your thought on that?

ANSWER: NO WORRIES.  MY ASSISTANTS USED TO SIGN FOR ME SO THE MAIL COULD GO OUT IF I WAS AWAY FROM THE OFFICE.

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OK, Maryanne, let's leave the bruising beating I just gave you behind, and move on toward my suggestions.

Suggestion #1.  Make one last run at getting a few more dollars added to the settlement, BUT DO NOT EVER ACCEPT THEIR OFFER, NO MATTER HOW MUCH SHE ADDS.  

Technique #1. Hereafter, make your next (and last) communication in writing only. Learn how to communicate with the insurance adjuster and Establish Firm, Professional, and Positive Relationships With the Insurance Injury Claims Adjuster http://www.settlementcentral.com/page0059.htm

How about avoiding those phone calls and try to always communicate with the adjuster in writing, showing your own analysis of value?   Always have your information and ammunition in writing to give to the adjuster.

Let her know that you are FIRM IN YOUR RESOLVE to get what you are demanding (NOT "asking", since that invites a counter-offer, but instead "demanding" as fair and reasonable compensation) by asking her what the options are to resolve the matter fairly should he not agree to a reasonable claim value. In other words, let her know that you will go through with a court filing if need be.


Technique #2. You have shut off any further offers from them because they deem you too intransient and your offers do not present much risk of loss.  In other words, you have no leverage in your offers.  

What is leverage in negotiations?  It is when the adjuster thinks that if she does not come up toward your offer, then she is going to lose her chance since you will go to an attorney.  

An example might be your vehicle.  Let's say that you are an American economic patriot and own a nice 2002 Cadillac with a value in the market of $18,000.  You advertise it at $19,000, hoping to negotiate a bit above market.  

If I come along and offer $11,000 are you at all motivated to even respond to me?  NO.  If another buyer offers $16,000 and states that she has an appointment that afternoon to look at a similar vehicle, will you respond to her?  Of course.  Why?  Because her offer has leverage.  You will act for fear of losing it, and you will make a counter offer.

Ah, you say, that is just what we have been doing.  But I say that you have not made any real progress toward the adjuster's reserves in the case with your offers. She does have reserves much higher than her offer, and it is up to a good negotiation strategy to shake that fruit off the tree.  

I am not saying to reduce your offer waaay too low, but the technique here is to make a substantial reduction and to state that this offer is made only if the claim is settled pro se.  If you have to hire an attorney, then the offer is automatically rescinded without notice.

See if you can get her to nibble at your new bait and attract one last increase in her offer.

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Technique #3. Enclose some new document that she has not seen before or some new facts.  Since she threatened liability, get one or both witnesses to make a brief statement and enclose those.  You are trying to give her an excuse to go one of two things: (1) pay a bit more of her authority; or (2) to go to her supervisor and ask for more authority.

You should use a rough computation of lost wages or diminished wages for the rest of your working life, for example.


Technique #4. NEVER EVER ACCEPT HER FINAL OFFER, no matter how much she comes up. Thank her for making what she thinks is fair, and apologize for not doing a good enough job of presenting your claim.  So tell her that you are disappointed in her final offer, but you will take a few days to think about it.  Goodbye.  


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Suggestion #2. Hire an attorney who will agree to take a percentage ONLY on the "new money" she earns above the offer you have in hand.  You state that the arrorneys wanted all of the pie for their percentage or none.  Well, FIND A DIFFERENT ATTORNEY and negotiate fees with her on the basis of your existing offer belonging to YOU and her fees being figured on the new money only.

Here is how to make that attractive: give her 40% or even 45% of what she earns above the existing offer.  You need to provide some incentive to attract a good attorney to your claim and no good attorney is going to work for you if all you are offering is the standard one-third, to be taken on just the new money.  

You have to convince the attorney of two things.  First, that you have not been to the well so many times that there is no water left.  She has to have a feeling that there is enough pie left to make it worth her efforts.  

To do this, make her address the topic of lost wages in terms of (1) voc rehab experts she has used, and (2) economic report authors she has used.  This is the kind of testimony that you MUST HAVE to make any fair settlement.  Point out that with such a report, your lost wages alone will show as being over $500K.

Do not go bragging about all the negotiations you had to do to get this offer.  Otherwise, the attorney might think that you have left no room for her to be effective.  Unless asked, do not go into the 5 negotiation sessions you have had.  Just let the attorney know what the offer is and that you are willing to offer a much higher percentage than normal if she will go after what is left in the reserves (and beyond, if she is successful)

Technique #5. You may agree on a fee of 40% on the new money, BUT YOU MUST LIMIT THAT TO TWO AND ONE-HALF TIMES THE EXISTING OFFER OR ELSE YOU WILL REALLY SHORT YOURSELF IF THE ATTORNEY SHOULD DO REAL WELL.

Do the math to play with this and negotiate for what you and the attorney agree is fair.  

For example, if one adds the medicals and lost wages, let's say that they total $108K, and then she is offering you $42K on top, so the existing offer is $150K.  Now you play around with the numbers to see what the attorney gets and what you get in each case.  Pick a good high one for your example so the attorney will see that this will make it worth her while.  

Let's say that she can use a voc rehab expert and an economic expert and thus increase the offer to $250K.  Deduct $150K and then the attorney gets 40% of $100K, or a fee of $40K, which is not too bad.

Now, on the other hand, let's say the attorney gets a recovery of $600K.  Here, you can see that the 40% is unfair to you.  The net increase is $450K, and at 40%, the fee is $180K, which is way too high.  

So, if you try taking two and one-half times the existing offer as the break point, that is a bit more fair.  Beyond two and one-half times the existing offer the fee reverts to one-third on the amount of the increase.

Hence, in the $600K example, $150 comes off the top to you, including any subrogation owe http://www.settlementcentral.com/page0459.htm

Then since the increase of $450 is over 2.5 times the existing offer, the fee reverts to one-third of the amount over the existing offer, or 1/3 of $450 or a fee of $150, which is surely fair to both you and the attorney.  Play with the math on this and get two of three examples down in writing that you can share with the attorney during your fee negotiations.

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I hope that you can see the advantages of proceeding as I have suggested.  You CAN EASILY find that attorney who will agree on the basis presented above.  Do NOT BE INTIMIDATED: GOOD ATTORNEYS ARE HUNGRY AND THEY WILL AGREE TO A GOOD OFFER LIKE THIS.   If three are not interested, then build up your evidence you are brining into the meeting and the fourth or fifth or sixth WILL AGREE.  Persistence will pay off in this.


OK, Maryanne, you got over two hours of my time, and I trust that extra my time here has produced some information that has been of value to you, and thus I would respectfully request that you take the time to locate the FEEDBACK FORM on this site and leave some feedback for me.

Best Wishes,

Dr. Settlement, J.D. (Juris Doctor)
http://www.SettlementCentral.Com