Do I Have a Case and How Much is My Case Worth?
If you have been injured, you may be wondering about whether you have a case for a lawsuit against those causing injury, and how much your case is worth. These questions are inter-related, as noted below.
In general, the calculation for what a case is worth is determined by considering:
- The amount of damages to which the injured person may be entitled, including non-economic damages such as pain and suffering and potential punitive damages
- Who may be liable for damages
- The availability of assets of the defendant(s) (including insurance policies) to pay for the damages
- Whether the injured person has other insurance available (such as an uninsured/underinsured policy)
- The potential liens of medical providers and others to compensation gained through litigation
- How clear that it is that the defendants are at fault for causing injury
- The likely investment of expenses and time required to prove the case
What Damages Is the Injured Person Entitled To?
While all injury cases will be different, potential damages that are recoverable in a lawsuit often include the following:
- The cost of damaged vehicles, or other property damages
- Medical bills, including prescriptions, rehabilitation, and therapy. If future medical costs (like surgery) are likely, such future costs are also recoverable.
- Lost wages, including both past lost wages, as well as future lost wages, including lost wages attributable to an injury victim no longer being able to perform the same type of work that they previously performed.
- Pain and suffering, including both past pain and suffering as well as future pain and suffering likely to be endured, either as the result of ongoing pain or future surgeries. It can even include psychiatric bills, such as if a person needs to see a psychiatrist as part of learning to adjust to a disfigurement. Please see our page on pain and suffering, which discusses the factors that are often used by juries in calculating this aspect; in the interim, lawyers will generally make an estimate or range of likely pain and suffering damages in determining the value of a case.
- Loss of affection and companionship. If a person is severely injured and not able to engage in normal lifestyle activities, they are entitled to compensation. Such activities can include personal activities (such as running), as well as family activities (such as playing catch with a baseball or football with children).
- In-home services, modifications to a home, and other requirements (such as a special vehicle). As an example, if a person is confined to a wheelchair as the result of an injury, household modifications may be necessary. A wheelchair-accessible vehicle may also be required, and the injured person may need to hire help for household activities that they are no longer able to undertake. These types of damages are all compensable.
In a personal injury or wrongful death case, our role will be to determine all past and future damages that are compensable, and then to bring suit against all those who may be liable.
Who May Be Liable?
An initial consideration in accepting a lawsuit is to understand who may be liable for the injuries sustained. In a car crash, for instance, it may be the case that only the other driver is at fault. Or, in addition to the other driver, others may potentially be at fault, such as a city for non-functioning traffic control devices, a tire manufacturer for having a defective tire that caused the collision, or even the car manufacturer of the victim’s car, if the air bags failed to inflate properly.
Often experts may be needed to determine all of the potential defendants in a lawsuit, so that all of those liable may be held accountable for their share of the damages and injuries.
What are the Assets of a Defendant(s)?
Once the defendants have been identified, the next step is to assess the potential damages that may be available for a settlement or judgment.
Today, the majority of Americans have few unencumbered assets of significant value. Studies show that most Americans cannot afford an unexpected $400 expense. Many people also carry credit card debt, and do not own significant assets free and clear (like a house).
As a result, in a vehicle crash involving another vehicle, motorcycle, bike, or pedestrian, it will be important to determine whether the negligent driver is insured, and if so, the amount of insurance coverage available. Unfortunately, many drivers today are uninsured (even though this this illegal), or they are significantly underinsured (their insurance is far too low to pay for the damages that have been caused). If a negligent driver has little or no insurance, thus can be a significant detriment in the value of lawsuit.
If there are other defendants in a vehicle crash – such as a city or tire or car manufacturer – this will be helpful, as these types of defendants typically have insurance that will be implicated in the event of a crash. It is important to consider, however, that such entities will only be liable to the extent of their fault in the crash. So, for instance, if a jury determines that a city is 10% at fault, the city would only be required to pay for 10% of the damages.
Does the Injured Victim Have Uninsured or Underinsured Coverage?
In the event that a driver does not have sufficient insurance coverage, we will also want to know whether the victim carried uninsured or underinsured coverage. Having uninsured or underinsured coverage is beneficial in two respects.
First, it means that additional money will be available in an injury claim.
Second, the uninsured/underinsured carrier will likely have a requirement to immediately begin making payments to the injury victim. It’s important to understand that when a claim is made against the insurance company of the liable driver, that insurance company will have a duty to defend their insured driver, which normally means to contest payments. In other words, they have no duty to you – the person injured.
Conversely, if you have uninsured/underinsured coverage, your insurance company represents you, and they have a duty to pay you compensation in accordance with the terms of your insurance policy.
What Liens Will Apply
Insurance companies and medical providers will have contractual or statutory liens for the amount of money they have paid or the services they have provides. The government may also have a lien, if Medicare or Medicaid payments were made for medical care.
Under the law, these entities will be entitled to be reimbursed for the amounts that they have paid, or for the services that they have provided, from any settlement or jury award. The amount of these liens and the assets and insurance money available from the defendants will affect the ultimate amount available to both the attorney and to the injury victim.
Often, in representing an injury victim, we will seek to obtain an agreement from those with statutory liens to reduce their liens to take into account the legal time and expenses that must go into seeking a recovery. More specifically, if your insurance company has to pay medical costs and perhaps the cost of a totaled vehicle, the responsible defendant (and their insurance company) are never going to simply pay what they owe. Instead, litigation efforts are needed to secure compensation. It is only fair that these insurance companies – like the injury victim – pay an amount to a lawyer for the lawyer’s time and efforts in securing compensation.
With the case of Medicare, there are already statutory procedures in place for lien reductions to account for legal fees; with others who may have a lien, the lien reductions need to be negotiated.
How Hard Will it be to Prove Damages and Liability?
Every case will be different. In some cases, liability will be clear, such as if there is video of a defendant running a red light and hitting another car. In other cases, liability will not be as clear-cut.
Similarly, in some cases damages will be much easier to prove than in other cases. For instance, cases involving only past damages (like medical bills) will be easier to prove than future damages, or damages such as pain and suffering.
Before making a decision to accept a case, attorneys will usually consider carefully how difficult it will be to prove damages and liability.
Making the Final Decision
Once all of these factors are either known or estimated, an attorney can then determine the likely value of the case. Unfortunately, in some situations – such as those where a defendant has no insurance or assets or where the medical bills far outweigh the insurance and assets, it may not be economically feasible for a lawyer to accept a lawsuit. These situations are really difficult for everyone, particularly for those who are injured who cannot recover fully for the financial burdens and for the pain and suffering to which they have endured.
At our firm, we are experienced in representing those injured, and the families who have lost a loved one, as the result of the negligence and reckless actions of others. If you have been injured or suffered from a wrongful death in your family, we would invite you to contact our firm for a free consultation to learn how we can help. As we accept injury and wrongful death cases on a contingency fee basis, we are only entitled to a fee if compensation is recovered.