The opportunity for settlement of your injury case often raises many questions. The basic one “should I settle my case” requires you to think about a number of issues.
Unsurprisingly in a settlement, there is always paperwork. One basic truth is be sure you understand what the paperwork means and the terms of the settlement before you agree to it.
Be Sure You Understand The Deal
The basic deal in a settlement is the insurance company for the at-fault party wants to pay you money in exchange for your agreement to end the case. A settlement is generally final and binding. It releases the at-fault party from any future financial responsibility. Before you agree to a settlement offer, you and your Idaho personal injury attorney will discuss whether you understand and accept all of the terms and conditions of the settlement of an injury case.
Evaluate the Settlement Amount
You and your Idaho personal injury attorney will of course discuss whether the amount of the settlement offer is reasonable under the circumstances. Whether to accept a settlement amount is always your choice. But your attorney should give you a professional evaluation of the reasonableness of an offer. He can discuss the likely costs and outcome of a trial against the certainty and benefits of settling now.
Your injury lawyer will discuss “case value” with you. Case value estimates are the thing that an experienced lawyer can bring to the table for you. Reaching an estimate of case value requires consideration of the risks and costs of trial along with a fair estimation of the quality and quantity of proof of damages the jury will see.
But whether to accept an offer is your choice. Rejecting one settlement offer does not mean you will never get another. Many defendants and insurance companies expect to go through several rounds of offers, rejections and counteroffers.
Consider All The Others Who Must Be Paid From Your Settlement Funds
Any debt, subrogation claim or lien that you might owe to others because of treatment for injuries you incurred must be considered.
In the worst case, a settlement offer not sufficient to pay off debts connected to the incident may well leave you on the hook for the rest.Sometimes, your lawyer can help by negotiating or using other remedies available under the law to make sure all of your obligations are covered. Depending on the circumstances, your lawyer might be able to convince creditors to take a lesser amount in exchange for immediate payment. But because this is an uncertain process, it is important to discuss your debts and obligations with your lawyer when analyzing a settlement offer.
Subrogation is a specific type of claim to be repaid for something already paid for your benefit. For example, when your insurance company pays a medical bill for treatment arising from your injury it will have a right to be paid back. If you have medical insurance, it probably covered your initial medical care. Subrogation can be complex and depends on state and federal laws as well as individual contracts. Your personal injury attorney should help you understand how — or whether — it applies in your situation.
Medical Liens Can Affect Settlement Of Your Injury Case
Liens are legal claims against personal property, used to secure a debt. The paying insurance company cannot ignore a medical lien. It is something like a residential mortgage. The lender for a buyer will be sure and payoff the lien before getting money to the seller.
Idaho’s medical lien law provides medical providers a lien right against your injury case recovery. Some medical providers abuse this right and create problems in resolution of injury cases. They do this because Idaho has a special law that gives medical providers strong rights against injured people’s claims for damages.
Resolving lien claims is difficult because of the laws that apply to them. And because holders of lien claims are often slow to respond. The law does not always say that lien holders are required to respond to requests for a lien amount within a specific time. It sometimes takes months to get an appropriate answer. This delay prevents prompt payments of settlement funds to clients like you. It can be frustrating for you and your lawyer.
When multiple insurers or debts are involved, things almost always become quite complex. For example, you might run into complicated lien problems when you have your own private health insurance, a automobile medical payments policy, and are also using Medicare as a secondary insurer. Figuring out who paid what when and needs what repayment can be a complex accounting exercise.
Medicare Has Its Own Special Rules
When it is not certain whether Medicare is a primary or secondary insurer, Medicare will make a conditional payment. If it is later determined that some other party was responsible for that payment, Medicare is entitled to a refund from that party. Or from you or the health care provider, if one of you was paid by that party. And Medicare requires you account for any future medical care in your settlement. It will not pay for care you have been paid for. You might have to deal with a Medicare set-aside to finalize settlement of your injury case. This is important because the federal government may place a lien on your property to recover this type of conditional payment. It might also be entitled to make a subrogation claim against your settlement. And your lawyer might have personal liability as well. And the insurance company for the at-fault party might have additional liability if you do not take care of Medicare. This is because the government has passed laws to be sure it gets paid back. You can be sure your settlement funds cannot be distributed until Medicare issues are handled.
Other Considerations For Settlement Of Your Injury Case
Obviously the costs of your representation is a thing you need to take into consideration. If you go forward are there additional expenses of an increases in a percentage of a contingent fee?
There can be other legal ramifications of settlement. For example you may have claims against more than one defendant or insurance company. Or you might be considering a lawsuit over the same injuries against another party. In those cases, you need to evaluate whether settling with one defendant could limit or eliminate your right to pursue the other cases.
If you have a claim under your own auto insurance underinsured or uninsured provisions you need to be sure you have dealt with any notice requirements. Otherwise you might lose your rights under your under insured motorists policy.
Speed of settlement of your injury claim can be important. Sometimes, obtaining a quick settlement is one of the most important services an Idaho personal injury attorney can provide. While often speedy settlements do not provide full “case value” a rationale decision to can be made to settle quickly given your particular circumstances.
Certainly the costs and risks of trial is an important consideration as well. Your lawyer can take you through the various scenarios that arise in a jury trial setting. We can talk about our many successes but also the cases that had less favorable outcomes.
Your personal experience of having the case go forward too is important. Do you feel comfortable with risk? Do you want to just put the case behind you and move on with your life? Is it important to you to have a public day in court? These and other personal questions also are things for you to consider when evaluating a settlement offer.
The number one consideration in settlement of your injury case is to get complete advice from you attorney. Be sure that you have had a chance to evaluate all the relevant issues. And, in the end, do what is right for you.BACK TO ARTICLES