Deciding whether to accept a settlement offer is one of the most important decisions you will make when filing a claim with the negligent driver’s insurance company after a car accident. You may feel extremely conflicted if the insurance company makes you a settlement offer soon after your collision. You may be anxious to get your claim resolved and receive your check. However, you may have concerns that the amount offered is too low.
If you are in this situation, you are not alone. Many car accident victims worry about how to handle a low settlement offer by the insurance company.
Your Rights When Receiving an Offer From an Insurance Company
If you are offered a settlement that you believe is too low, you have the right to reject it. In fact, you don’t want to accept any settlement offer made soon after the crash, because you don’t yet know the full value of your claim. It takes time to know the extent of your injuries and to reach maximum medical improvement—the stage at which you have recovered as much as you will and know what your medical bills and lost wages will total.
Steps to Take If You Want to Reject a Settlement Offer
You may be afraid that the insurance company will not offer you another settlement if you reject their first one. Fortunately, this is rarely the case. A first offer is simply the start of negotiations between you and the insurance company. Their initial offer may be intentionally low in hopes that they can entice you to accept less than you deserve in your settlement.
If you decide to reject the insurance company’s settlement offer, you want to do it the right way. Here’s what you need to do:
Retain An Attorney
If you have not already done so, you need to retain an experienced car accident lawyer in Nevada right away. You should never make a decision about a settlement offer without first consulting a lawyer. He will know how much you should receive in settlement and can protect your legal rights.
Make A Counter-Offer
After your lawyer conducts an investigation, he can send the insurance company a written demand letter rejecting their offer, outlining your claim, and making a counter-offer. He can take over the negotiations with the insurance adjuster for you. Be prepared that it could take numerous rounds of offers and counter-offers before your claim is resolved.
File A Lawsuit
If the insurance company refuses to be reasonable or the statute of limitations to file your lawsuit is set to expire soon, you do not have to settle your case. Your lawyer will file a civil complaint on your behalf and litigate for fair compensation. You will most likely be able to settle your case before it goes to a jury trial.
Accepting Policy Limits In A Nevada Personal Injury CaseOne question that I have received numerous times from clients over the years is, “Can we go after the personal assets of the person who hit me?” This question usually comes up when we are discussing a policy limits offer from the insurance company of the negligent driver. In this situation, one of two scenarios is playing out: 1) The policy limits are insufficient to fully compensate the client; and/or 2) We are preparing to make a claim against my client’s Underinsured Motorist Policy (“UIM Policy”). My clients usually feel (and rightly so), that it is unfair that their injuries are not covered by the policy of the other driver. As a result, they will inevitably ask if we can pursue the other driver’s personal assets. Over more than a quarter of a century of practice, the answer to that question has always been an emphatic, “No.” There are several good reasons for this.
First, in the vast majority of cases in which there is insufficient insurance, the negligent driver maintains the state minimum limits of insurance. This usually indicates the negligent driver has no assets to protect and likely lives paycheck to paycheck. That being the case, it would require years of wage garnishment to fully compensate the client. This would require “chasing” the negligent driver from job to job and place to place as they try (as they almost certainly would), to avoid paying the judgment and having their wages garnished. Additionally, unless alcohol was involved, a judgment of this type is dischargeable in bankruptcy. This means that the full amount of the judgment, less the insurance policy amount, would essentially disappear once the bankruptcy was completed.
Second, the client assumes the insurance company will pay out the policy limits immediately, allowing them to then pursue the negligent driver. Insurers carry two duties: the duty to indemnify (pay a judgment or claim), and the duty to defend (pay for an attorney to defend you if you are sued). Unless the insurance company receives an executed Release of All Claims, they will not (and cannot) settle the case. This means the client will have to proceed to trial and obtain a judgment. Only then can the insurance company pay out the policy limits. Going to trial and litigating the case will almost always require incurring significant costs. Likewise, the negotiated contingency fee usually goes up once suit is filed and/or the case goes to trial. It is very likely the client could end up with less money than they would have had they accepted the policy limits initially.
Lastly, in the event there is UIM coverage, it makes no sense not to accept the policy limits from the negligent driver and proceed to collect against the client’s own insurance company. Clients are so hesitant to make a claim against their own insurance company. They always assume their premiums will go up. As I have discussed in a prior blog post, this is not the case. Nevada law precludes an insurer from raising premiums solely for making a claim when there is no fault on the part of their insured. Not using UIM benefits is like paying for health insurance and insisting on paying cash rather then allowing a doctor’s office or hospital to bill their insurance. No one would even consider doing this. However, the insurance industry has done a masterful job of scaring people into believing they have to pay exorbitant premiums without ever using the coverage. This is why it is critical that you have an experienced personal injury attorney to represent you throughout the claim and litigation process.
In the event you have UIM coverage but choose to pursue the negligent driver above and beyond their policy limits, you may not be able to access your UIM benefits unless and until you have collected the full amount of the judgment against the negligent driver. You may also have an offset in that amount which means you may not be able to obtain your own policy limits which could have fully compensated you for the injury you sustained.
There may be a time to pursue a negligent party’s personal assets. However, that would be a very rare case. Always seek out an experienced personal injury attorney to help you navigate your automobile accident claim. Let Jones Wilson’s experience help you get the maximum recovery possible on your claim.
Car Accident Legal Rules Regarding Insurance
In most instances, if you are injured while a passenger in a car being driven a family member or friend, you are normally limited to making a claim under the Bodily Injury (BI) coverage. As a passenger in the vehicle you also become an insured under the policy of insurance entitling you to all applicable coverages under the policy. However, even if your injuries are so severe that the coverage limits are insufficient to make you whole, the language in the insurance policy do not allow you to make a claim under the Uninsured Motorist/Underinsured Motorist (UM/UIM) Coverage when making a claim against another person who is also deemed an “insured” under the policy. To do so would violate what is known as the “anti-stacking” provisions under Nevada insurance law. However, the Nevada Supreme Court carved out an exception to this rule in cases in which there are two or more separate drivers who are found to be concurrently negligent. Delgado v. American Family Insurance Company, 125 Nev. 564, 217 P.3d 563(2009).
In Delgado, Dionicia Delgado was injured in an automobile accident while riding as a passenger in a car owned and operated by Eunice Marcelino. Marcelino attempted to turn left across the northbound lanes of traffic on Nellis Boulevard in Las Vegas. A northbound car, owned and operated by Toquanda Dean, struck Marcelino's car, severely injuring Delgado. Marcelino was insured by American Family Insurance Group for liability up to $50,000 per person, and had underinsured motorist coverage up to $25,000 per person. Dean carried an insurance policy with a $15,000 liability limitation.
In Certain Instantances You Can Make Multiple Claims In A Car Accident Case
Delgado made a claim against both at-fault drivers’ insurance policies and recovered the liability limits under both of those policies. She alleged her damages exceeded the limits of both liability policies, and submitted a first-party UIM claim against Marcelino’s American Family policy. American Family denied her first party claim based on its position that, under Nevada law, an insured who is covered under a liability policy cannot also recover under the underinsured motorist provision of the same policy. American Family asserted such a recovery amounted to impermissible “stacking” of the policies. After Delgado filed suit against American Family, a district court granted American Family summary judgment. Delgado appealed the district court’s ruling.
American Family argued two prior cases decided by the Nevada Supreme Court in which an insured party was precluded from claiming recovery under both the liability and the UIM coverages. The Nevada Supreme Court distinguished these cases on the bases that they both involved claims against a single driver who was also deemed an insured under the policy. The reasoning of the Court was that since the drivers of the two vehicles which caused Delgado’s injuries were both concurrently negligent, arguably the driver of the other vehicle was the “under insured” rather than the driver of the vehicle in which she was a passenger. Under that rationale, Delgado was entitled to recover both parties’ bodily injury liability limits, as well as make a claim under the UIM policy.
When involved in an automobile accident it is important to know and understand complex rules and cases relating to insurance coverage. It is important to have a personal injury attorney who knows and understands the law to ensure the maximum recovery for you. If you have been injured in an accident reach out to Jones Wilson Injury Lawyers for a free consultation to discuss your legal rights to ensure the maximum settlement possible in your case.
Differences Between Nevada Car Accident Claims and Lawsuits
When you must assert your right to compensation for injuries in an auto accident in Henderson, you may hear many legal terms that you do not understand. Two words that are sometimes used frequently are “claim” and “lawsuit.” These are very different proceedings and it is important to understand the differences so that you can protect your legal rights.
Filing an Insurance Claim in a Henderson Car Accident Case
Filing a claim is a process of notifying the negligent driver’s insurance company that you have a claim for compensation following a car accident caused by their insured. It is a somewhat informal process to obtain the compensation you deserve for your medical expenses, lost wages, and pain and suffering. It is best to let your attorney contact the insurance company to file a claim on your behalf and to negotiate your settlement.
Your lawyer most likely will start the process of filing your claim by sending the insurance company a demand letter notifying them of your claim and the amount of damages you should receive. The insurance company would investigate your claim and either deny it or contact your attorney to make a counteroffer of a monetary settlement. Settlement negotiations could go on for some time, and your attorney may have to provide additional documentation regarding the accident and your injuries to convince the insurance company to be reasonable.
What Is a Lawsuit?
A lawsuit is a legal proceeding that is begun by filing a complaint against the negligent driver with an appropriate court. Your attorney would file a lawsuit against the at-fault party if he was unable to settle your claim or the statute of limitations was expiring soon. The statute of limitations is the time period that you have under Nevada law to file your lawsuit. If you fail to file it within this deadline, your complaint would most likely be dismissed.
Filing a lawsuit is a formal legal process. Once your complaint is filed, a judge would be assigned to oversee the progress in your legal case and to decide disputes. Your attorney and the lawyer for the insurance company would litigate your case. This can include sending each other written questions to answer, requesting production of documents, taking depositions, which is testimony given under oath, and retaining expert witnesses. If your case is not settled, it would be scheduled for a jury trial where an official decision would be made by the jury on what, if any, compensation you should receive.
How Pain and Suffering Is Determined After a Car AccidentIf you were injured in a car accident, you may have incurred medical bills and lost wages while you recovered from your injuries. If another driver caused your accident, you could be entitled to compensation for these expenses. However, you may also deal with pain and suffering that can include emotional distress and the inability to engage in activities you used to enjoy. But because pain and suffering doesn’t have a monetary value attached, it’s not always clear how these damages are calculated.
Determining Compensation for Pain and Suffering
Compensation for pain and suffering isn’t calculated in an exact way. However, a number of factors are used in awarding pain and suffering damages. The following facts can influence the amount of compensation for pain and suffering:
- How long you waited to get medical treatment after the accident.
- The severity of your injuries and the length of the recovery time.
- Your age.
- Whether you are credible as a witness.
- Whether your actions are consistent with someone experiencing pain.
- Whether you have any pre-existing injuries.
- Whether the injuries impacted your day-to-day activities.
- Whether the injuries impacted your ability to work.
- Whether the injuries impacted the relationship with your family.
- Your pain tolerance and the level of pain associated with the injury.
In order to build the strongest possible case, it is important to document all aspects of your pain and suffering. In addition, having an experienced car accident attorney on your side is critical for maximizing the pain and suffering award you could receive in settlement or at trial.Pain and Suffering Damages in a Henderson Car Accident Case
You could suffer serious injuries in a car accident in Henderson, especially during the holiday season when traffic is more congested at places like the Galleria at Sunset Mall and other popular shopping centers. If a negligent driver caused your injuries, you are entitled to compensation for your medical bills, lost wages, and pain and suffering. While calculation of your medical expenses and lost wages is fairly straightforward, it can be difficult to determine how much you should receive for the pain and suffering you experienced.
What Is Pain and Suffering?
Pain and suffering encompasses both physical and emotional pain. Physical pain and suffering is the pain and discomfort caused by the accident and your injuries. Emotional and mental pain and suffering includes the anxiety, depression, loss of enjoyment of life, fear, insomnia, and other negative emotions you have experienced. Depending on the seriousness of your injuries, this portion of your compensation may be substantial.
How Is Your Pain and Suffering Determined by the Negligent Driver’s Insurance Company?
Unfortunately, there is no precise way to determine the value of your pain and suffering. The insurance company for the negligent driver may use one of these methods to calculate how much this part of your claim is worth:
When this method is used, your medical expenses and lost wages would be added together and multiplied by a certain number, which is generally between one and five, to arrive at an amount for your pain and suffering. The multiplier chosen would be based on how serious your injuries were.
Per Diem Method
If a per diem approach is utilized, an amount, for example $100, is multiplied by the number of days from the date of your crash to when you reach your maximum medical recovery.
Some insurance companies use a computer program that takes into account many factors, such as the type of injury and treatment sought, to decide what amount to offer in settlement.
Reasons to Hire a Lawyer in Your Henderson Car Crash Case
When you are facing mounting medical bills following a car accident in Henderson and have no income because you are too injured to work, you may be tempted to try to negotiate a settlement with the negligent driver’s insurance company by yourself. However, this could result in you receiving less than you deserve in your settlement. To ensure that you receive what you are entitled to, you need the assistance of an experienced car accident attorney in Henderson to protect your legal rights.
Why You Need a Lawyer to Negotiate Your Car Accident Settlement
The insurance adjuster for the negligent driver will most likely have years of experience denying claims and negotiating car settlement claims—often for less than what a victim is entitled to. He will also have a team of experienced car accident attorneys who work for the insurance company. You will be at a serious disadvantage if you try to work with them on your own. Here are some of the benefits of retaining an attorney to represent you:
Understanding Nevada Law Regarding Car Accidents
An experienced car accident attorney will have a thorough understanding of the Nevada laws that apply to your case, including the statute of limitations for filing your lawsuit and what you have to prove to win your case. In addition, a skilled local lawyer will understand the local court procedures that must be followed because he regularly handles auto crash lawsuits in courts in Henderson and Las Vegas.
Investigating Your Car Accident
An attorney can conduct an extensive investigation of your accident and collect the evidence you need to prove the other driver’s negligence. He can recover surveillance tapes from a business that may have recorded your crash, obtain witness statements, and retain a qualified accident reconstruction to create a reenactment of your accident if its cause is in dispute.
Valuing Your Car Accident Claim
If your attorney has settled and tried many car accident cases, he will be able to accurately determine how much your claim is worth so that you receive what you deserve in your settlement. It can be complicated to determine the amount of your pain and suffering damages and your future medical and wage losses if you suffered a serious injury without a lawyer’s assistance.
Negotiating Your Car Accident Settlement
Even if the other driver was clearly at fault in causing your wreck, his insurance company could try to reduce or deny your claim. An attorney will have years of experience negotiating with the insurance adjuster so that you receive what you deserve. At Jones Wilson Injury Lawyers, we have the added advantage of having worked for insurance companies, so we understand their tactics in these cases.
Representing You At Trial
While most car accident claims are settled out of court, in some cases the insurance company will not be reasonable. If you are in this situation, you need an attorney who is experienced in trying these cases and who will aggressively litigate your case.
Have You Been Involved In A Henderson Or Las Vegas Car Accident?
If you've been injured in a car accident you need to speak with an experienced car accident lawyer as soon as possible. Contact us online or call our Henderson office directly at 702.405.6000 to schedule a free initial consultation.