QUESTION:
I was rear-ended in an accident that wasn’t my fault, and it resulted to a minimal damage to my car. The other person’s insurance paid $460 in damages. I have a preexisting condition which affected my healing time. I was treated by a chiropractor for 6 months and have a $4,500 medical bill. The other person’s insurance said they will only pay for $1,200 of that bill. PI lawyers don’t seem to want my case since the damage to my car is minimal and my medical bill is higher. What is my best course of action? How do I negotiate with their insurance company? I don’t necessarily want to go to small claims. It seems daunting and I feel that I’m in over my head.
ANSWER:
At the very least, a person who has suffered injury through the fault of another is entitled to “be made whole”—i.e., to be restored insofar as is possible to his or her preinjury condition through a “compensatory” damages award. [CC § 3281 [3:4]. However, if you decide to settle the issue through negotiation with the insurer company, it is noteworthy that “efforts toward settlement normally should begin as soon as (a) the initial fact gathering is complete and all pertinent records and reports have been obtained (medical, wage loss, etc.; see Ch. 2), and (b) claimant’s condition has stabilized to the point that a credible medical prognosis can be made” [4:42] . Filing suit in itself rarely puts pressure on tortfeasors to settle: i.e., most routine p.i. cases (rear-ender auto accidents, relatively minor “slip and falls”) will settle whether or not a lawsuit is filed. Thus, all other things being equal, unless the statute of limitations is about to run, claimants need not initiate litigation before commencing settlement discussions; doing so may simply run up unnecessary attorney fees and costs (drafting the complaint, serving process, etc.) and court costs (filing fees). [4:42]. If liability is clear, the claim is obviously worth more than if liability is disputed. Or, in multiparty cases, settlement value may vary with each potential defendant (indeed, the variables are particularly complex in cases to which Prop. 51 applies; see ¶ 4:50.1–50.3, 4:183.2, 4:185.20 ff.,4:198 ff., 4:473.1 ff.) [4:44].It would be best to consult a lawyer regarding the procedure if you decide to settle through negotiation.