How to Settle an Injury Claim

You want to know how to settle an injury claim to make sure you aren't falling into any traps, or being taken advantage of by the insurance company's claims adjuster.  The problem is that you don't trust lawyers.  This mistrust is based on stories you have heard about, and your background, beliefs, or upbringing.  You think that only those "other" type of people hire lawyers when they get hurt, and you don't want to be one of "those" people.  Wasn't it Shakespeare who wrote in his play, Henry The Sixth "The first thing we do, let's kill all the lawyers"? 

On the other hand, you don't know much about getting a fair deal in settling with the insurance company.  You don't know what the requirements are.  You know in general what is wanted, but the nuts and bolts of how to do it are causing you problems. 

By this time, you probably have discovered the biggest problem of all . . . actually dealing with the insurance company.  They never answer the phone, it takes days or longer for them to get back with you, they don't ever give a straight answer to any of your questions, and they won't guarantee that they are going to actually pay for the bills that their insured driver or person caused.  They keep telling you that you don't need a lawyer, but they have lawyers on staff, and years of experience in denying or reducing the amounts that need to be paid on claims for a wide array of reasons.  You don't want to say or do the wrong thing. 

Topics of Interest:
Attorney's Fee in injury cases
Settling Injury Claims
Adjuster is Delaying Payment and "Investigating" Claim
Medical Care After an Accident
Notice of Hospital Lien Against Case
Should I Use My Health Insurance After an Accident?
Multiple Car Accidents and Injuries
What You Can Recover in Injury Cases

First, if you were hurt in an accident seriously, or seriously enough that your financial health is at stake, you need to consult an attorney before you settle your claim.  Real injuries typically have real medical bills, some with liens, and with real issues regarding multiple insurance issues: auto insurance companies, health insurance companies, Medicare, Medicaid, and/or Workers Comp.  Settling injury claims has become a maze of twists and turns that can trip up even the most experienced adjusters and attorneys.  The more complicated health and liability insurance has become, the more complicated settling injury claims has become.  

If you weren't hurt but were seen by a medical facility and owe some small bills due to the visit, or your injury was very minor, then there are a few things you can do to get your case settled without hiring a lawyer, and ensure you are not left paying or owing bills that the insurance company should have paid.  

Steps in Settling a Claim:
The following is a guide that will help you determine if you can settle the claim yourself, or if you need a lawyer to help you settle your claim with the insurance company. 

Answer these questions to help you determine if you should try to settle your injury claim without a lawyer:

I.  Types of Cases You Should Never Try to Settle Without an Attorney:
If your answer is "yes" to any of the following questions, you should not attempt to settle the case on your own without first consulting an attorney.  

1)  Is the insurance company waiting to "finish its investigation" before it pays your claim?  
   
If your auto insurance company is waiting to pay on your claim until it can "finish its investigation" then beware!  This can mean multiple things, but it all boils down to one thing . . . they are trying to delay paying you for some reason.

Investigation for an insurance company is done for a few things a) coverage issues; b) liability issues; c) damages issues. 

a)  Coverage Issues:  If they are investigating a coverage issue, then this means they are looking for a reason to say there is "no coverage" and then deny your claim.  This can be for non-payment, for a person driving their car who was not supposed to be driving it, for the other person driving a car that was not listed, for no coverage for the time or date of the accident, for their driver "not cooperating" with them - meaning they aren't calling in the claim.  Yes, they can deny coverage because their driver never calls in the claim - getting the insurance company off the hook for paying your claim.  They "want" their insured driver to not call.  This gives them an excuse to delay paying you and hold on to the money just a little longer, and gives them an excuse to deny coverage some time in the future in case their person never does call in the claim.   You need a lawyer to put the pressure on the other driver so they contact their insurance company so there is no coverage issue due to "not cooperating". 
b)  Liability Issues:  If the insurance company is confirming liability, or investigating liability, this means they are looking for reasons to place the blame on someone other than their driver.  They may try to place the blame on you, or your driver for something they claim you did (didn't put on your brakes in time, cut them off and then slammed on your brakes, failed to veer right or left to avoid the collision, didn't use your horn so the other person would know to get out of the way) . . . or maybe they will try to blame a "phantom vehicle".  Often, the other driver will claim that some vehicle that nobody else saw suddenly cut them off and they had no choice but to hit your vehicle.  They will claim that it wasn't their fault, but the fault of this "phantom vehicle" that nobody saw, and nobody has a license plate for.  This will give the insurance company an excuse to try an deny your claim. 
   
Sometimes they will blame it on God himself.  They call it an "Act of God".  Acts of God include weather, sun, wind, rain, or ice.  Everyone on the road may be driving normally, and within the limits that the weather dictates, but their driver has decided to drive too fast for the conditions, or change lanes when unsafe and loses control on the water, or gets sun in his eyes, and tries to place the blame for the accident on an Act of God.  This gives the insurance company a reason to deny liability, because their driver did nothing wrong - it was Mother Nature, or God who caused the accident. 
   
c)  Damages Issues:  If the insurance company is waiting to pay because they have to confirm some issues about "damages" (medical treatment, lost income, or other out of pocket expenses), then they are looking to see if they can find a reason to not pay your damages (medical bills, lost income, or other out of pocket expenses).  If you had another accident or injury claim with another insurance company from an auto accident, or from a Workers Compensation claim, or from a premises liability case or slip and fall, then they are likely contacting those other insurance companies to see what injuries you had in those older cases to see if your injury you are claiming now is similar.  If it is similar at all, they will try to blame your current injury on your old accident or injury, and claim that they do not owe it.  Insurance companies have access to databases that let them know about all your other injury claims you have had, with all the different insurance companies you have made any claim with.  They will know about any prior claims of injury, even if it was just a minor complaint, and they will use that information against you and try to blame your current injury on the old claim - in order to get out of paying. 

If the insurance company is delaying payment due to "investigation" reasons, you need a lawyer.  This means the insurance company is looking for a reason to get out of paying - coverage, liability, or damages - they are looking under each rock to see what they can find, and if they find something, they will use it against your claim. 

2)  Were you taken to a hospital for your injury? 

If yes, you were taken to a hospital for your injury, you need to contact an attorney to review your case.   Often hospitals have liens that must be paid.  The automobile insurance company will typically string you along leading you to believe they will "take care of everything".  When they say they will "take care of you", or "take care of everything", this is a general statement that doesn't mean anything.  All it means is that they are trying to pacify you for a few weeks or months, and then when it comes time to settle, they are going to take care of you in the way they want (which is not the way you expect).  They will then make an offer that is lower than what is owed, telling you that the hospital charged more than they should have.  You have not clout with the hospital, you don't know how to bargain with the hospital.  The hospital has a lien, so the settlement must go to them - and you have other bills as well.  It starts to look like all the money will go to the hospital, and nothing will go to your other out of pocket expenses (medication, lost income, rental bills, towing, visits to your personal doctor, other medical bills). 
   
If you were taken to a hospital for your injury.  Your claim is not as simple as you think.  You need to contact a lawyer to help you with your claim, or at least review it with you to determine if anything can be done in your situation. 

3)  Did a health insurer pay your medical bills for your injury (health insurance, Medicare, Medicaid, Workers Compensation)? 

If yes, a health insurer paid your bills, then you need to consult a lawyer (such as Medicare, Medicaid, Workers Comp, or your own health insurance). Do not try to settle the claim without contacting an attorney first and discussing your case.  You likely need an attorney.  Your health insurance will want their money back.  If you don't pay them, it can affect your coverage (where they don't pay you for future health insurance, Medicare, Medicaid, or Workers Comp claims).  This can lead you to being worse off than you were before you settled the personal injury claim. 
   
If any type of health insurance has paid for anything, or will pay for any of your medical bills related to your injury, do not settle your claim.  Contact an attorney to discuss your situation and see what can be done to help in your situation. 

4)  Was there a DWI or drugs suspected?

If you suspect a DWI or that the other driver was intoxicated by some type of drug, then you likely need to talk to a lawyer regarding your claim prior to attempting to settle.  You will need to discuss the facts with your lawyer so they can investigate and determine what the value of your case is.  You do not want to try and settle this type of claim without the help of a lawyer.  There are many pressure points in this type of case that an experience lawyer can use to ensure you recover the full value of your case. 

5)  Was the other driver driving "distracted", such as using a cell phone or texting that led to the collision? 
   
If the other driver was on their phone, you will need the help of an attorney to subpoena those records to prove your claim.  If they were driving distracted, and that distraction caused the accident, this can affect the value of the case - depending o/n what happened and what was said afterwards.  Often the other driver will admit at the scene they were driving distracted, but will later deny it to their insurance company - even when they admit it to the police officer.  They try to claim the officer didn't hear them correctly, or did not speak to them (only spoke to you).  You will need an attorney to help prove it - to solidify your claim that they were on a cell phone at the time - especially if they deny it at any time. 

6)  Were multiple people injured? 

If multiple people were injured in your auto accident, you need a lawyer.  There are only so much in insurance proceeds for a particular auto accident.  To ensure you are not left out in the cold, you need an attorney to investigate and pursue your claim for you.  If the auto insurance company pays all the other people first and exhausts all the money on the policy, you may have nothing left for your claim, even if your injury was the worst of all.  In this situation, hire a lawyer to help pursue your claim and protect your rights to the insurance proceeds. 

7)  Were you traveling in someone else's vehicle when you were hurt (a friend, family member, or someone else)? 
   
If you were injured while in someone else's vehicle, there will be questions as to which insurance company is primary, and which is secondary.  If your injury is serious, then you possibly will need the use of your underinsured motorist insurance.  In those situations there are certain procedures to make your claim.  The procedures depend on the facts of the case.  If you mess up the procedures (do it out of order) then you can forfeit the rights you have to those insurance proceeds. 
   
If you were injured while in someone else's vehicle, hire an injury lawyer to help determine the order of responsibility of the insurance companies involved so the claims can be made in the correct way so that you don't lose coverage you should have available to you. 

8)  Were you already treating for another condition or injury in similar area of body? 

Often, people are treating for a condition already when an accident happens and causes 1) an aggravation of your injury, causing additional medical treatment that you would not have incurred if the accident had not happened; or 2)  a new injury in a part of the body close to the area already injured.
   
If it is an aggravation of your preexisting injury, then you need a lawyer who can gather the information needed to show how the injury was aggravated, and what the difference is between your prior condition, and your current condition. 
   
If this is a new injury, then you need a lawyer who knows what information to gather to show the difference between the old injury or condition, and the new injury caused by the accident. 
   
These are not as simple as you may think.  If this is your situation, you need an injury lawyer to help you present your claim to ensure you recover. 

9)  Did you treat for another condition or injury in a similar area of the body in the past? 

If you were hurt in the past in a similar area of the body, the liability insurance company will try to blame your current injury and condition on the old injury you treated for previously.  They won't want to pay for it.  You will need an attorney to present the claim in a way that explains the difference. 

10)  Was the other driver uninsured? 

If you were injured by a driver who did not have insurance at the time of the collision, you need to contact a lawyer to see if they can help you locate coverage that will help in your situation.  Often people may have other coverage that may help in particular situations.  Each case is different, so your attorney will need to investigate and determine what coverages you may have available to help in your situation. 

11)  Were you the victim of a hit and run? 
   
If the driver who caused the injury hit and ran from the scene, you will need an attorney to help investigate and present your claims you may have.  There are certain procedures in presenting your claim that need to be followed.  You need to have someone present your injury claim for you in a way that ensures there is coverage, and that you are able to recover from the other driver. 

12)  Were you injured by a driver who was in the middle of a road rage? 
   
If the other driver was having a melt-down, and was in the middle of a road rage incident when the accident occurred, then you definitely need to talk to a lawyer BEFORE you even talk to the insurance company.  This is a common way that insurance companies try to get out of covering a claim.  They don't cover "intentional acts".  The insurance company will ask you questions designed to guide you into saying that everything that happened was "intentional".  This helps them to deny the claim, since they won't cover intentional acts. 
   
What the insurance company won't tell you is that not all "road rage" accidents are intentional.  The other driver may have swerved into your lane intentionally, or maybe even drove up quickly behind you and tailgated very close while screaming at you.  He may have swerved into your lane and slammed on his brakes.  But he may have done all this to scare you - not to hit you and damage your vehicle - as well as causing damage to his own vehicle too.   If the impact wasn't intentional, then it is not an intentional act.  Often, because the person who is having road rage is acting like a fool, the victim of the road rage accident tells the police and insurance companies, and anyone else who will listen that the other driver did it "on purpose".  It may seem like he did it intentionally.  Certainly his swerving, yelling, and all his gyrations were intentional, but can you truly say the impact was intentional?  You were probably scared and angry at how the other driver behaved, and rightfully so.  It may seem like you are going to get the other driver in more trouble by saying this, but it might not be true.  
   
In these situations, you need to consult with a lawyer to present your claim for you.  When you are emotionally involved, angry, scared, or otherwise upset about how the other person behaved, you need to have a mouthpiece to present your claim for you, so you don't mess up your claim by saying something that you might "think" happened, but don't "know" happened. 
   
Don't give the person's insurance who was having a road rage meltdown a reason to not pay the claim by volunteering information you are just assuming.  His insurance should pay for it, and his rates should go up, not yours. 

12)  Do you have a bankruptcy pending?  Did you file bankruptcy after the injury occurred? 
   
If you have a bankruptcy pending, or if you file bankruptcy after your injury accident, but before you settle it, you need to talk to a personal injury attorney to make sure you protect your claim and your bankruptcy.  Certain filings need to occur, and permission given by the bankruptcy court before you can settle your auto accident case.  If you fail to do so, you may jeopardize your bankruptcy, and your settlement.  Contact an attorney if you have a bankruptcy issue and are also looking to settle a personal injury claim. 

13)  Are you behind on your child support and owe to the Texas Attorney General, or have a child support lien through the Texas Attorney General's office? 

Sometimes people are behind on their child support payments, and the Texas Attorney General's office has placed a lien against any insurance proceeds from any automobile accidents - including any injury claims you may have.  At the last minute, your insurance adjuster will notify you "hey, looks like you have a lien.  We will need to send this settlement check to the State of Texas."  This is usually done AFTER you have signed a release agreeing to settle the case, but before they send you the actual check.  So you are stuck with the amount, and now with the lien, you don't have enough money to pay all the medical bills, and the money you were expecting to pay for your deductibles and copays, and reimburse you for your lost income is all going to the State of Texas Office of the Attorney General's office (OAG). 
   
Sometimes these liens are out of date.  You may have already paid the amount.  You may have a lien against you based on bad information - the Texas OAG's office may have the children living with your spouse, when in fact, they are living with you! 
   
If you have a child support lien against you, and you are needing to settle a personal injury claim, you need a lawyer to help you negotiate the minefield you are walking in. 

14)  Are your medical bills paid by your health insurance and yourself combined currently greater than $1000.00, or will they likely be greater than $1000.00 in the future? 


If you have over $1000.00 in medical bills, you need to consider hiring a lawyer for your personal injury case.  Anything under this amount, if the injury is minor (if you went to your personal doctor one time, and its been 2-3 months and you are 100%) then yes, you can attempt to settle your case on your own.  Granted, you still are walking a fine line when it comes to dealing with all the insurance issues mentioned above, and all the liens that may be out there.  My suggestion is that you still run your case by a lawyer first, before attempting to settle.  There may be issues that you haven't thought of that will cause you much misery in the future.
   
II.  How to settle an injury claim with an insurance company:

1) Lump sum settlement: 
First thing you need to know, is that this is going to be a one time, lump sum settlement.  They will pay you a certain sum, and in exchange, you will give them a release - ensuring that you can not make them pay anything else in the future for your accident or injury claim(s). 

2)  Bills and Records: 
If you are claiming an amount out of pocket, then you need documentation.  You need to get all the itemized bills, receipts, and records from all the places you claim have caused an out of pocket expense or bill that you still owe.  These include medical bills, lost earning capacity, towing, rental, and any other out of pocket expenses the claim has caused.  Be sure you have also ordered all the treating records as well, for medical treatment - so the insurance company can confirm your bill is actually from treatment related to the injury (and not for getting flu shots, or going to your heart doctor for unrelated treatment). 

3)  Amount for Demand: 
Back in the 1980s, they used to say that a personal injury claim should settle for "3 times medical bills".  This is NO LONGER used.  In the early 1990s, tort reform ran its course in the great State of Texas.  Insurance companies are no longer threatened by many of the legal tools that used to keep them treating people fairly.  Punitive damages had their teeth removed in Texas.  The Texas Insurance Code's Deceptive Trade Practices Act section has been interpreted to only apply to 1st party claims (claims against your own insurance company - not against a liability carrier of the person who caused your injury).  So insurance companies are not allowed to treat 3rd party claimants like they are criminals, and lie to you outright, and be as rude as they can possibly be, with no recourse.  These are the people who were victims of their insured's conduct that actually hurt or killed a loved one.   The Texas courts and Texas legislature has determined that if you have been victimized by a drunk driver, then that drunk driver's insurance company has the right to try and victimize you again by treating you like you are the criminal, for daring to present a personal injury claim. 
   
All that being said, insurance companies no longer pay anything near 3 times medical as a general guideline to settle personal injury claims.  Now, the adjuster will look at the facts of the case (what happened), look at the severity of the impact (how much damage done to the vehicles), and the type of injury you have - and then look at your history of treatment (Was your injury preexisting, or can they make it look like it was?).   After they look at all these factors, they will come up with a number of what they think your case is worth.  Usually the offer is much lower than you would expect. 
   
There is no formula for what to ask, or what to settle.  You look at what you are out of pocket, what you owe due to the accident.  You then look at what they are offering.  You compare what they are offering to what it will cost to get more (hire an attorney and possibly file a lawsuit).   You don't want to leave money on the table, so you ask for higher than what you expect to get . . . but not too much higher, because if the adjuster thinks you are totally unreasonable, they might not even try to make you any fair offers.     

4)  What is a fair settlement amount?:
It is the amount that makes both sides unhappy (really!).  Both sides have given up more than they want to give up in order to get the case settled.  If you are at this point, and you can live with the amount offered (even if the amount just burns you up with anger), then you may have gotten a fair offer. 
   
If you aren't sure, you probably need to call an attorney first and run the facts by him to determine if you are better off hiring an attorney, or taking the settlement. 
   
I have had many calls where I thought "I could make some money off this case if I signed them up", only to find out later in the conversation that there is a fairly decent offer on the table already, and that I don't see them getting anything more by hiring me.  Its advice that any decent and fair personal injury attorney will give, they should be willing to tell you "I don't see that you will get significantly more by hiring me", if that is what they see.  If that is the case, a good attorney will let you know.  We don't want unhappy clients who think we actually put them in a worse position by hiring us - since we take a percentage of what we recover on cases.  If your case does not look like we can obtain a better offer or verdict than what you are already being offered, then we won't take the case.  Beware though, some firms will. 
   
All this said, no lawyer can guarantee results.  We can give our opinion based on our experience handling cases such as yours, what we think of your case, and whether you are getting a fair offer or not.  In my experience, usually you are not getting a fair offer.  This may be because I only get calls from people who are unhappy with the offers they are getting.  (People who are happy with the offer the insurance company makes . . . I don't think those people usually call attorneys - no reason to call a lawyer, they are happy with their offer).  That being said, I can't remember the last person who I talked to about their injury claim where they were with the insurance's settlement offers - even with people who I just know personally as friends or family where they were trying to get the case settled on their own, it just doesn't seem to happen. 
   
5)  Filing a lawsuit is going to cost money: 
You have been negotiating with the insurance adjuster, and you are certain that the adjuster is low balling you.  You know they should be offering more to settle your case.  How can I determine if I need a lawyer? 
   
First, and easiest, is just call us.  We can ask a series of questions to see if your case makes sense.  If you are certain a lawsuit needs to be filed, we can know fairly quickly if it makes economic sense to file a lawsuit in your case.   In the smallest auto accident personal injury case, the cost out of pocket for the attorney is going to be about $3000-$4000 to get the lawsuit filed and be ready to present it at trial. 
   
The out of pocket costs to the attorney includes a) filing fee of about $300 to the county to file the lawsuit; b) service of process of about $150 to hire a process server to serve any defendants; c) deposition costs of about $400 per deposition for the other driver, any witnesses, and police officers needed - $1200 approximately if only these 3 depositions needed; d) affidavits for medical bills and records are about $50-$100 per affidavit, and you need 2 affidavits from each medical facility - if you have an ambulance, hospital, ER doctor, family doctor, orthopedic, and physical therapy - you have 6 facilities which means 12 affidavits - a total cost of about $600-$1200 typically;  e)  mediation is ordered in almost all personal injury lawsuits, a mediator charges about $400-$500 per side to try and mediate the case to a settlement.  This is done before trial.
   
The total out of pocket costs to an attorney to get your case ready for trial is $3050-$3750 for even small personal injury cases, when a lawsuit has been filed.
   
You will need to consider the size of your case.  If you have a small case ($500-$1000 in medical expenses), and you are needing to file a lawsuit to pursue your claim, because your insurance adjuster is denying your claim, or is not offering a fair amount, you need to consider that an attorney may not be able to take the case because the costs will be too high to get their expenses back out of the case.  Insurance companies know this.  Unfortunately, they use it against small cases - as they know it is unlikely you will be able to get an attorney to take a small case, since the attorney will end up spending more than they can make out of the case. 
   
Before you give up, give an attorney a call about your case - you may have factors that you haven't considered that make your case more valuable than you realize.  You have nothing to lose by contacting an attorney - if it turns out that you don't have a case that is economically feasible to pursue, then at least you will have peace of mind in having run it by an attorney's office to make sure.  But if your case is worth more than you realize, you should know that as well.