Your uninsured motorist claim is most certainly worth more than what the insurance company adjuster tells you it is worth.

Insurance companies want to settle claims for the lowest amount possible. The insurance business strategy is to advertise like mad and then collect insurance premiums.  Paying claims is not a priority for insurers. Paying claims reduces insurance company profitability. Insurer advertising invokes thoughts and feelings that insurers are there for you like a kind wealthy uncle. When they want you to pay, they are awesome. When you need them to pay, not so much.  The insurance adjuster is not Santa Clause. Think Ebenezer Scrooge before his conversion. Know that your claim value evaluation is likely to be higher than the insurer’s claim value evaluation. You simply will be better able to mentally handle the process if you are prepared for a miserly offer.  We have heard time and time again from clients who were unprepared for the harsh treatment they have received from insurers.

The severity of your injury and your medical bill total are the biggest drivers of your uninsured motorist claim value.

• Your injury:

The nature and extent of your injury is a big kahuna in valuing your claim. You must make an objective evaluation of your injury claim that starts with understanding the nature of your injury.  A short term minor injury has modest settlement value. A severe permanent injury has significant value.

The primary injury considerations are:

Permanent v. temporary – permanency can double or triple your claim value.

Single body part v. multiple body parts – multiple injuries can be a multiplier on your injury claim value.

Disabling v. annoying – an injury that truly disables or limits you increases the claim value.

Painful v. annoying – provable pain increases the value of your claim.

Disfiguring v. “invisible” – visible injuries such as scarring or burns increase case value.

 To use an example, you have a back injury. A back sprain is worth less than a herniated disc. A back sprain typically is not as painful, disabling or as expensive to treat as a herniated disc. A back sprain typically heals within months. A typical herniated disc can be excruciatingly painful with pain shooting down your into your legs, it can render you bedridden, and may take years to heal, if it ever heals. The usual back sprain usually requires modest treatment and medical bills: an emergency room visit and follow up with an internist and physical therapy or chiropractic. A herniated disc will require a visit with a specialist such as an orthopedic surgeon or neurosurgeon, an MRI or CT Scan and extensive therapy, injections and maybe surgery.

• Your medical expenses (and income loss)

The amount of your medical bills is the other big kahuna in evaluating your injury claim. Insurance companies know that economic damages typically will be compensated by an arbitrator, therefore the insurance adjuster is inclined to include your medical expenses in the settlement offer. Once upon a time, the concept existed that a case should settle for three times the amount of your medical bills. This is no longer true. It is still true, however, that insurers will use your medical bills as a primary basis for their offer.

Your “non economic damages” (pain, disability, disfigurement).

Your pain, disability and disfigurement should be significant factors in evaluating the worth of your uninsured motorist claim.  How to evaluate these items? Think about frequency, severity and effects.  For example, was your pain constant or occasional, was your pain mild or severe, and was your pain something that prohibited you from normal activities or was is just an annoyance. Be prepared to prove these things in order to persuade the insurer.

The forum

The forum is the place where your case will be decided. In Illinois, uninsured motorist claims are heard in arbitration, if they not settled by negotiation. The hearing can be in front of a three arbitrator panel or in front of a single arbitrator. You need to know who is hearing your case. Certain arbitrators lean toward a more open minded view on injury case value and awarding damages. Some arbitrators are more conservative or restricted in their view of injury claims. You would do well to know.

Who are You?

If you look and sound like a believable person who was injured, the arbitrator will be more inclined to award you proper compensation.  If you are evasive, shifty, slovenly or downright untruthful, you will be penalized with an insufficient award. Tell the truth. Dress well. Look the arbitrator in the eye. If you had an old back injury that was aggravated in this incident, you have to tell the doctors and the insurance company. If your back healed from the old incident, tell them that and you will have more credibility.  In sum, if you look and sound likeable and believable, you increase your chance to obtain fair compensation for your uninsured motorist claim.

Your Policy Limits

Your claim may be worth $1,000,00.00, but if you bought just  $100,000.00 in uninsured motorist coverage, your maximum recovery is the $100,000.00. In 25 years of handling uninsured motorist claims, we have seen far too many clients with woefully inadequate uninsured motorist coverage.  Buying low policy of limits of just $20,000.00 to $100,000.0 is penny wise but may be pound foolish. An overnight stay at the hospital can cost $20,000.00.  Increased coverage limits do not cost as much as you may think. Many attorneys and insurance professionals believe people should have at least $500,000.00 in uninsured and underinsured motorist coverage. Ask your agent about the costs of increased coverage. Increased coverage is not proportionately more expensive. For example, if a policy with $100,000.00 in coverage limits costs $1,000.00 annually, a policy with $250,000.00 in coverage limits much cost just another $100.00. In the event of a serious injury with an uninsured or underinsured motorist, that is extremely well spent protection.

Conclusion and Disclaimer

The above are my thoughts about valuing your uninsured motorist claim.

My thoughts are based on years of experience in representing people in uninsured motorist claims, arguing the facts and law in court, writing on the subject and presenting materials at continuing education seminars.
Every case is unique and your case must be evaluated independently based on the facts of your case and applicable law. This is not legal advice and no attorney client relationship is formed by your reading of this information. I certainly hope the article contains some useful information, and if you have questions, I would be glad to take time to speak with you.

The rule of law must protect the powerless against the powerful.  This principle has been developed in civilized societies and passed down through the centuries. Without the rule of law, those with power are free to oppress, abuse, and take advantage of those without power.  The concept of justice and redress for harm is one prerequisite to a civilized society. Protection of the consumer against corporations is essential.

If people feel helpless and hopeless, they take matters into their own hands.  In order for the law to protect people, it must have some teeth, some effect, and some real consequences for it to have meaning.  Similar to a parent who tells their child to stop drawing with crayon on the wall and imposes no consequence for the continued behavior, if our consumer laws do not exist or are not enforced, the bad behavior will continue.

If a law has no enforcement mechanism, then the law is just a lofty sounding platitude. If the law cannot be used to effect real consequences, the law is just a bunch of words on a piece of paper. If the law cannot be used by people to get fairness, or justice, or to hold others accountable, then the law has no real purpose. Without justice, anarchy will soon take hold because the people will have no faith in the law. Want proof? Read history.

Many corporations, politicians and other influential groups have been successfully advocating for weakening, dismantling and eliminating consumer protection law and class action lawsuits. This is a frightening development. Where does the consumer turn when a defective product or service is sold by a corporation? If the customer service desk does not provide a refund, what does the average consumer do?   The fact is that consumer protection laws and class actions hold corporations accountable. Where will change in behavior come from without the threat of accountability?

Does anyone really believe that the consumer who gets the shaft by being sold a defective product or service is going to be able to use the court system on their own to get a remedy? Does anyone really believe the consumer is going to be able to pay legal fees and costs for a defective, faulty or fraudulent $50 service? The consumer either cannot afford the legal fees and costs or the fees and costs far outweigh the potential benefit.  The lawyer cannot possibly use the legal system to benefit the individual consumer because the lawyer has to feed his family and pay rent, staff, utilities, insurance and the dozens of other business expenses required to keep a business operating. The lawyer who takes on noble but unprofitable business will soon be a bankrupt and unemployed lawyer.

Misleading Service Contracts and My Dryer

I write this as I await the 5^th visit to my home in 4 weeks by a dryer repairman. The idea I think is to fix the Maytag dryer purchased 2 short years ago at Home Depot. They sold me a “Service Contract” from the Federal Warranty Service Corporation that is serviced by A and E Appliance Company. You got that?  Of course I thought it genius to buy a service contract or extended service plan or however they phrase it. I have always thought it absurd to have to buy a service contract. If the product is good and you are paying for it, shouldn’t it last? Well the dryer failed. I called the hotline thinking, hopefully, the minor issue would be resolved with one visit.  However, after having taken parts of 4 days off work and spent innumerable hours on the phone and on line with international customer service representatives, it has reached comical proportions. The time, cost, and effort expended to get a working dryer in order that I have clean underwear far exceeds the cost of a new dryer. I probably could have refurbished my entire basement with the lost income from dealing with this circumstance. And, I am a lawyer! I feel basically powerless. Try reaching a customer service rep who has the authority to do anything meaningful like order a replacement dryer.  The kicker? The service contract has an arbitration clause! No court for you they say to their customer.  Court would mean accountability. Oh, and arbitration filing costs can be $300.00! Mind you the dryer cost maybe $700.  Is this funny yet?  Now, have I launched an arbitration demand and letters to corporate legal departments? Yes. Has that had any effect? No. I am, as we all are, just another powerless feeling consumer.

Class actions are an essential and critical legal remedy to protect the relatively weak, powerless consumer. I do not mean weak in the sense of physical, mental of emotional capabilities. I mean “weak” relative to the financial, legal, and political power of corporations.  I mean weak in the sense of one soldier versus an entire army of soldiers. That one soldier might be the biggest, baddest, toughest Rambo out there, but in the face of an army of soldiers, the one soldier is eventually going to lose. The analogy of the lone soldier against an army applies to the consumer against a corporation. The lone soldier and the consumer need resources. And the class action is the vehicle to level the playing field and to interject accountability into the relationship between consumer and corporation.

Corporation’s Profit Motivation

On the radio this morning, a conservative politician was ranting and raving about how liberal politicians are so wrong about wanting corporate regulation. The conservative commentator was venting his view that government regulation will strangle corporations and job growth. It is true we need healthy corporations and job growth, and as a small businessperson, I do not necessarily welcome government regulation, but it is a necessity. How else are people to be protected against over reaching, corner cutting, fraud, deception, and a hundred other ways that corporations can injure, defraud, deceive, or otherwise take advantage of people? What can we rely on?  The good will of corporations? Corporations are, they will all concede, formed to make a profit.  That profit motive, history has proven, often overrides good citizen type decisions. See Enron, Gulf oil spill, flammable infant clothing, and other examples of corporate bad decision making.

Now, we understand that corporations employ good, honest, hard working individuals with good intentions. This is no attack on corporate employees. The point is that a corporation is simply a soulless, lifeless legal entity that has all sorts of rights and a primary motive to make a profit! Corporations have rights to sell products and services. Is it unfair, unjust or wrong for them to have a corresponding obligation to be fair, just, and safe in their business? And how is it that they can be made to be fair, just, and safe in the business practices?  Consumer protection laws and class actions are a powerful means to hold them accountable.

If you believe your rights as a consumer have been violated, call Chicago consumer attorneys at The Law Office of Meyer & Blumenshine for a free consultation - (312) 263-1000

What’s my claim worth?

How to think about the value of your injury case

You have been injured due to someone’s fault, and you want to know the value of your injury claim in Illinois. The question is valid. The answer is not simple. The answer cannot be found in a book or on Google. Why? Because injury case value is not a math or science problem with a definite answer.  You cannot plug in x, y and z and get an answer as you would with a calculator.  Ultimately, if a case is not settled by negotiation, the case value is decided by a jury, judge or arbitrator.  Predicting what people will do is difficult. That is why cases settle. People are unpredictable.

What you need to know are some basics of case evaluation. When you know the basics of case evaluation, you can speak the same language as the insurance company or their attorneys.  When you know the basics of case evaluation you can estimate a range of value for your case. For example, you need to know that your case has a value between $100,000.00 and $125,000.00. When you know case evaluation basics, you can think about your case in an effective manner and perhaps determine a range of value for your case.

A word about liability

This article is not about liability.  Every case has two parts: liability and damages. Liability is the degree of fault of the other party.  Damages are your injuries and other loss.  With regard to liability, if the other party rear ended your car in an auto collision, that person is likely 100% at fault for your injuries. If the other party sideswiped you on the street and there is evidence you could have seen the other driver and avoided the collision, then the other person might be only 50% responsible for your injuries. So, for purpose of case evaluation, in considering your damages, if the other party is less than 100% at fault, your damages claim is correspondingly reduced. For example if your damages are $100,000.00, and the other party is only 50% at fault, your case may only be worth $50,000.00 or nothing at all. Liability is a threshold issue. This article presumes the other party is a negligent cause of your injuries.

The claim evaluation process

Insurers and attorneys use a claim evaluation process. The informed claimant will also go through a claim evaluation process. The process is important in determining whether to settle the claim or go to hearing or trial to allow a jury, a judge or an arbitrator to render an award on your claim. Personally, I am not an exceptionally handy person. When I have some mechanical problem in my home or with my car that is beyond my capabilities, I go to a specialist.  It is worth the money. The time and effort in learning how to fix some mechanical issue, and perhaps make it worse, make the value of going to a specialist worth the cost. However, even if I go to an expert, I usually attempt to inform myself about the basics of getting my vehicle serviced or getting something done in my home. That is what you are doing now with respect to your claim.

The “Value” of your claim

Asking “what is the value of your claim” can be like asking what is the value of a house.  Value depends on facts. To use the analogy of the house value question, we know that the price of a house will depend on many factors. The major factors include location of the house, the size of the house and the condition of the house.  A big house in a good neighbor that is in updated condition has a greater value than a small, dilapidated house in a tough neighborhood. Similarly, the value of your claim rests on a few main factors: the severity and permanency of the injury, the amount of medical expenses and income loss, and the amount of insurance coverage that is available.

The main elements of your injury claim

The main elements of your injury claim are: 1) the severity of your injury, 2) whether your injury is permanent, and, 3) the amount of your medical expenses and income loss. The amount of available insurance can be a factor. Let us explore these components further.

I. Severity of Injury

      A. Diagnosis

             The primary factor to determine the value of your injury is the severity of the injury. What is your injury?  Stated another way, what did your doctor and other treaters find and diagnose? You may have a back injury, but that injury could be diagnosed as anything from a lumbar strain to a lumbar herniated disc. Generally, a strain is simply not worth as much as a herniated disc in the eyes of insurers, defense attorneys jurors and many arbitrators.  A strain is a muscle pull or stretching that is somewhat painful and disabling and expected to heal in weeks or a few months. A herniated disc is something that can be knee buckling, disabling and never heal.  A strain will never be a surgical condition whereas a herniated disc is often treated with an operation.  It is quite true that even “minor” injuries can be painful, disabling and permanent. However, in the land of insurance adjusters, defense attorneys and many judges and jurors, they will look skeptically at a claimant who seeks major dollars for strains and sprains.  When informed that an injury victim had a brain injury, broken bones, herniated discs, burns, scarring or other significant trauma, people can sit up and take notice.

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What’s my claim worth?

How to think about the value of your injury case

You have been injured due to someone’s fault, and you want to know the value of your injury claim in Illinois. The question is valid. The answer is not simple. The answer cannot be found in a book or on Google. Why? Because injury case value is not a math or science problem with a definite answer.  You cannot plug in x, y and z and get an answer as you would with a calculator.  Ultimately, if a case is not settled by negotiation, the case value is decided by a jury, judge or arbitrator.  Predicting what people will do is difficult. That is why cases settle. People are unpredictable.

What you need to know are some basics of case evaluation. When you know the basics of case evaluation, you can speak the same language as the insurance company or their attorneys.  When you know the basics of case evaluation you can estimate a range of value for your case. For example, you need to know that your case has a value between $100,000.00 and $125,000.00. When you know case evaluation basics, you can think about your case in an effective manner and perhaps determine a range of value for your case.

A word about liability

This article is not about liability.  Every case has two parts: liability and damages. Liability is the degree of fault of the other party.  Damages are your injuries and other loss.  With regard to liability, if the other party rear ended your car in an auto collision, that person is likely 100% at fault for your injuries. If the other party sideswiped you on the street and there is evidence you could have seen the other driver and avoided the collision, then the other person might be only 50% responsible for your injuries. So, for purpose of case evaluation, in considering your damages, if the other party is less than 100% at fault, your damages claim is correspondingly reduced. For example if your damages are $100,000.00, and the other party is only 50% at fault, your case may only be worth $50,000.00 or nothing at all. Liability is a threshold issue. This article presumes the other party is a negligent cause of your injuries.

The claim evaluation process

Insurers and attorneys use a claim evaluation process. The informed claimant will also go through a claim evaluation process. The process is important in determining whether to settle the claim or go to hearing or trial to allow a jury, a judge or an arbitrator to render an award on your claim. Personally, I am not an exceptionally handy person. When I have some mechanical problem in my home or with my car that is beyond my capabilities, I go to a specialist.  It is worth the money. The time and effort in learning how to fix some mechanical issue, and perhaps make it worse, make the value of going to a specialist worth the cost. However, even if I go to an expert, I usually attempt to inform myself about the basics of getting my vehicle serviced or getting something done in my home. That is what you are doing now with respect to your claim.

The “Value” of your claim

Asking “what is the value of your claim” can be like asking what is the value of a house.  Value depends on facts. To use the analogy of the house value question, we know that the price of a house will depend on many factors. The major factors include location of the house, the size of the house and the condition of the house.  A big house in a good neighbor that is in updated condition has a greater value than a small, dilapidated house in a tough neighborhood. Similarly, the value of your claim rests on a few main factors: the severity and permanency of the injury, the amount of medical expenses and income loss, and the amount of insurance coverage that is available.

The main elements of your injury claim

The main elements of your injury claim are: 1) the severity of your injury, 2) whether your injury is permanent, and, 3) the amount of your medical expenses and income loss. The amount of available insurance can be a factor. Let us explore these components further.

I. Severity of Injury

      A. Diagnosis

             The primary factor to determine the value of your injury is the severity of the injury. What is your injury?  Stated another way, what did your doctor and other treaters find and diagnose? You may have a back injury, but that injury could be diagnosed as anything from a lumbar strain to a lumbar herniated disc. Generally, a strain is simply not worth as much as a herniated disc in the eyes of insurers, defense attorneys jurors and many arbitrators.  A strain is a muscle pull or stretching that is somewhat painful and disabling and expected to heal in weeks or a few months. A herniated disc is something that can be knee buckling, disabling and never heal.  A strain will never be a surgical condition whereas a herniated disc is often treated with an operation.  It is quite true that even “minor” injuries can be painful, disabling and permanent. However, in the land of insurance adjusters, defense attorneys and many judges and jurors, they will look skeptically at a claimant who seeks major dollars for strains and sprains.  When informed that an injury victim had a brain injury, broken bones, herniated discs, burns, scarring or other significant trauma, people can sit up and take notice.

      B. Treatment

 An important factor in the injury evaluation process include the type, timing and frequency of your treatment. Immediacy of treatment or how soon after the incident that you had treatment, the type of treatment you received, and how long your treatment lasted are all considered by insurers and defense attorneys.  If you did not have immediate treatment after your auto collision, the insurance company will downgrade the value of your claim. If you had initial emergency room treatment, but did not seek follow up treatment for a month after the initial treatment, the insurance company will reduce its evaluation of your claim. And jurors are likely to do the same with your claim if they do not see evidence of treatment consistent with a serious injury.

 Whether your treatment was invasive or non-invasive is an important consideration. Non-invasive treatment would be things like radiology tests such as x-rays or MRIs, medication, physical therapy or chiropractic manipulation.  Invasive treatment would include such things like injections or surgery.  The thinking on invasive versus non-invasive treatment is that invasive treatment suggests a more serious or painful injury. A person would not undergo an injection or surgery unless they were in a dire condition that allowed them to decide to have a needle put into them or to undergo anesthesia and be operated upon.

 How long did your treatment last? If you are still in treatment 3 months after the incident, most doctors will consider your condition chronic and likely to have long lasting effects. If you are recovered after 2 months of treatment, you have an uphill battle persuading an insurer that you have a serious and valuable injury claim.  Certain treaters and types of treatment carry perceptions that effect the value of a claim. Years ago, chiropractic physicians did not always have the most favorable view in the eyes of insurers. I believe that has changed and a capable chiropractic doctor can be an invaluable member of your recovery team and be able to provide helpful records and reports regarding your symptoms, objective signs of injury and progress through treatment. If you have a neurological type injury with something like brain trauma, you are going to likely have a neurologist, a psychiatrist  a neuropsychologist and perhaps a physical and occupational therapist to assist you. The fact that you have different specialists treating you is notable and can be persuasive in establishing the extent of your damages.

     C. Pain

Pain is a compensable element of damages under Illinois law. The fact that pain is an element of damages reflects the societal value placed on being healthy and pain free.

Witness the endless commercials for over the counter and prescription pain medications and the relief from pain which its vendors promise.  Being able to live and conduct our affairs free from pain is the ideal human condition.  The fact that an injury causes us to live in pain and requires us to go through our daily activities plagued by pain is the basis of compensation for pain under the law of damages.

 Pain can be proven by the testimony of yourself, medical treaters, family members, friends, co-workers and other associates. Medical records can establish specific locations, features and extent of pain.  Pain can be proven through physician’s prescriptions of pain medication, and prescription of treatment designed to lessen or eliminate pain.  The severity, frequency and duration of your pain is a factor in determining your case value. Did you experience pain for over a year? If so, then your damages are more extensive than a person who recovered from their pain in a month.  Was your pain constant? If so, that factor suggests a higher claim value than an injury that caused occasional or intermittent pain. The element of pain is a significant feature of your damages that is worth careful consideration.

     D. Disability

 What is disability or “loss of normal life? Any reduction or elimination in your activities in known as disability. The element of disability involves a look at your activities before and after your injury. In Illinois, disability has come to be known or defined as “loss of normal life.” A normal life is deemed to be one in which a person has a range of personal, household, work, family, social, spiritual, recreational and other activities. To the extent that a person is impaired in those activities because of injuries, they have partial disability or loss of normal life. To the extent is completely unable to do certain things, they have total disability or loss of normal life as to those particular life activities.

     E. Disfigurement

 Disfigurement is the term for visible injuries such as scars, burns or other deformities.  The law states that disfigurement is a compensable element of damages. An at fault party is responsible for your disfiguring injuries. The most common visible injury is scarring.  Scarring can result from the direct physical trauma such as a cut, or from the stitching after a surgical procedure. Other examples of disfiguring injuries are burns or severely broken bones that are knocked out of their normal alignment by the original injury or the subsequent surgical procedure.  As disfigurement such as scarring is usually permanent, it can have considerable value. It can be a significant element of damages in your injury claim.

      F. Temporary or Permanent Injury

 A major factor in evaluating your injury claim is whether your injury was short term or temporary in duration versus long term and permanent in duration.  If your case goes to a jury, and your injury is permanent, the jury is provided with a life chart which provides your life expectancy. If you are a 40 year old woman in otherwise good health, the life charts will indicate you may have an expected life of another 40 years. If the evidence, including doctor’s testimony is that your injury will have permanent effects, it can be argued that you are entitled to compensation for the pain, disability and medical expenses over the duration of your expected 40 years. On the other hand, if your injury is resolved and you reach a point of recovery, then the judge or jury may only consider the effect of your injuries during the duration of your condition.  Accordingly, it is essential that your medical treater be informed of the exact nature of your condition, symptoms and limitations during your course of treatment.

 II. Economic Damages or “Special Damages” and Income Loss

      A. Medical Expenses

Expenses which you incur, or income that you lose due to conduct causing your injuries are compensable damages. Financial or economic losses are sometimes referred to as “special damages.”  Damages such as pain and disability are sometimes referred to as general damages.   The primary economic damages resulting from an an injury are often medical expenses. Medical expenses includes ambulance, emergency room, radiology, physician, physical therapy, surgery, medication, devices and all other medical related services and items for which you are billed. And if you are billed but you have insurance to pay the bill, you are still entitled to claim those medical expenses as items of loss.  It is important to remember that you may have multiple bills for just one medical related visit to a medical facility. For example, a visit to the hospital emergency room, will likely involve charges from the hospital, the emergency room physician, the radiology group and perhaps others.  Keeping track of your expenses is essential. One of the primary factors used by insurance companies and attorneys in evaluating your case will be medical expenses.

     B. Income Loss

The income lost due to your injuries is another potential item of damages. Whether your income is from salary, wages or independent contractor type payments, if that income loss is due to your injuries, the law provides that the other party is responsible for that loss. You may have additional losses related to loss of 401k or profit sharing contributions, bonuses, or other performance related items which you have lost.

Forum

Where your case will be heard (the forum) a factor in evaluating your case value. For example, Cook County is considered a more liberal or generous place for your case as opposed to DuPage County which is considered a more conservative or stingy place for your case.  Jury pools in Cook County tend to be diverse in socioeconomic background and tend to take a dim view of corporate shenanigans as opposed to a county like DuPage where you have more corporate types who tend to take a dim view injury claims. These are broad generalizations, however they have support based on jury verdicts. If you have an uninsured or under insured motorist claim headed for arbitration, the arbitrator or arbitrators are critically important in evaluating your claim. It is important to know the inclinations of the arbitrator(s) and his or her experience and practice areas.

Eye of the Beholder

Are you likeable? Are you presentable? People are more prone to provide full compensation to someone who tends to be more likeable and presentable. This is a fact of human nature. These inclinations have been proven in experiences and study after study. We have done focus groups, spoken with jurors, negotiated with insurance adjusters, negotiated with defense attorneys, and there is an undeniable “x” factor that plays a role in resolving injury claims. Whether a case is settled by negotiations or decided by a jury, how a person looks and acts can be important factors. Let’s face it, we all tend to like or dislike people in our lives, in part based on how they walk, talk, look and conduct themselves. An honest look at that part of yourself will be helpful in getting a fair assessment of your claim.

Conclusion

You are best served by having an idea about how to evaluate your injury claim. You need a guide or framework within which you can analyze your claim. You must begin with the end in mind. In other words, if your goal is $100,000.00, you have to justify that amount. And in order to come up with a settlement goal, you must understand the basic elements of damages: pain, disability, medical expenses and income loss.  You must also know how to evaluate the nature and extent of your injury and whether or not the injury is permanent. The claim evaluation is as much an art as it is a science. It also may involve an ability to properly present your case and argument in favor of your claim.

Contact a Chicago personal injury lawyer if you would like to file a Chicago injury claim. Call Meyer & Blumenshine for a Free Consultation – (312) 263-1000

  B. Treatment

An important factor in the injury evaluation process include the type, timing and frequency of your treatment. Immediacy of treatment or how soon after the incident that you had treatment, the type of treatment you received, and how long your treatment lasted are all considered by insurers and defense attorneys.  If you did not have immediate treatment after your auto collision, the insurance company will downgrade the value of your claim. If you had initial emergency room treatment, but did not seek follow up treatment for a month after the initial treatment, the insurance company will reduce its evaluation of your claim. And jurors are likely to do the same with your claim if they do not see evidence of treatment consistent with a serious injury.

Whether your treatment was invasive or non-invasive is an important consideration. Non-invasive treatment would be things like radiology tests such as x-rays or MRIs, medication, physical therapy or chiropractic manipulation.  Invasive treatment would include such things like injections or surgery.  The thinking on invasive versus non-invasive treatment is that invasive treatment suggests a more serious or painful injury. A person would not undergo an injection or surgery unless they were in a dire condition that allowed them to decide to have a needle put into them or to undergo anesthesia and be operated upon.

How long did your treatment last? If you are still in treatment 3 months after the incident, most doctors will consider your condition chronic and likely to have long lasting effects. If you are recovered after 2 months of treatment, you have an uphill battle persuading an insurer that you have a serious and valuable injury claim.  Certain treaters and types of treatment carry perceptions that effect the value of a claim. Years ago, chiropractic physicians did not always have the most favorable view in the eyes of insurers. I believe that has changed and a capable chiropractic doctor can be an invaluable member of your recovery team and be able to provide helpful records and reports regarding your symptoms, objective signs of injury and progress through treatment. If you have a neurological type injury with something like brain trauma, you are going to likely have a neurologist, a psychiatrist  a neuropsychologist and perhaps a physical and occupational therapist to assist you. The fact that you have different specialists treating you is notable and can be persuasive in establishing the extent of your damages.

     C. Pain

Pain is a compensable element of damages under Illinois law. The fact that pain is an element of damages reflects the societal value placed on being healthy and pain free.

Witness the endless commercials for over the counter and prescription pain medications and the relief from pain which its vendors promise.  Being able to live and conduct our affairs free from pain is the ideal human condition.  The fact that an injury causes us to live in pain and requires us to go through our daily activities plagued by pain is the basis of compensation for pain under the law of damages.

Pain can be proven by the testimony of yourself, medical treaters, family members, friends, co-workers and other associates. Medical records can establish specific locations, features and extent of pain.  Pain can be proven through physician’s prescriptions of pain medication, and prescription of treatment designed to lessen or eliminate pain.  The severity, frequency and duration of your pain is a factor in determining your case value. Did you experience pain for over a year? If so, then your damages are more extensive than a person who recovered from their pain in a month.  Was your pain constant? If so, that factor suggests a higher claim value than an injury that caused occasional or intermittent pain. The element of pain is a significant feature of your damages that is worth careful consideration.

     D. Disability

What is disability or “loss of normal life? Any reduction or elimination in your activities in known as disability. The element of disability involves a look at your activities before and after your injury. In Illinois, disability has come to be known or defined as “loss of normal life.” A normal life is deemed to be one in which a person has a range of personal, household, work, family, social, spiritual, recreational and other activities. To the extent that a person is impaired in those activities because of injuries, they have partial disability or loss of normal life. To the extent is completely unable to do certain things, they have total disability or loss of normal life as to those particular life activities.

     E. Disfigurement

Disfigurement is the term for visible injuries such as scars, burns or other deformities.  The law states that disfigurement is a compensable element of damages. An at fault party is responsible for your disfiguring injuries. The most common visible injury is scarring.  Scarring can result from the direct physical trauma such as a cut, or from the stitching after a surgical procedure. Other examples of disfiguring injuries are burns or severely broken bones that are knocked out of their normal alignment by the original injury or the subsequent surgical procedure.  As disfigurement such as scarring is usually permanent, it can have considerable value. It can be a significant element of damages in your injury claim.

     F. Temporary or Permanent Injury

A major factor in evaluating your injury claim is whether your injury was short term or temporary in duration versus long term and permanent in duration.  If your case goes to a jury, and your injury is permanent, the jury is provided with a life chart which provides your life expectancy. If you are a 40 year old woman in otherwise good health, the life charts will indicate you may have an expected life of another 40 years. If the evidence, including doctor’s testimony is that your injury will have permanent effects, it can be argued that you are entitled to compensation for the pain, disability and medical expenses over the duration of your expected 40 years. On the other hand, if your injury is resolved and you reach a point of recovery, then the judge or jury may only consider the effect of your injuries during the duration of your condition.  Accordingly, it is essential that your medical treater be informed of the exact nature of your condition, symptoms and limitations during your course of treatment.

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 II. Economic Damages or “Special Damages” and Income Loss

      A. Medical Expenses

Expenses which you incur, or income that you lose due to conduct causing your injuries are compensable damages. Financial or economic losses are sometimes referred to as “special damages.”  Damages such as pain and disability are sometimes referred to as general damages.   The primary economic damages resulting from an an injury are often medical expenses. Medical expenses includes ambulance, emergency room, radiology, physician, physical therapy, surgery, medication, devices and all other medical related services and items for which you are billed. And if you are billed but you have insurance to pay the bill, you are still entitled to claim those medical expenses as items of loss.  It is important to remember that you may have multiple bills for just one medical related visit to a medical facility. For example, a visit to the hospital emergency room, will likely involve charges from the hospital, the emergency room physician, the radiology group and perhaps others.  Keeping track of your expenses is essential. One of the primary factors used by insurance companies and attorneys in evaluating your case will be medical expenses.

     B. Income Loss

The income lost due to your injuries is another potential item of damages. Whether your income is from salary, wages or independent contractor type payments, if that income loss is due to your injuries, the law provides that the other party is responsible for that loss. You may have additional losses related to loss of 401k or profit sharing contributions, bonuses, or other performance related items which you have lost.

Forum

Where your case will be heard (the forum) a factor in evaluating your case value. For example, Cook County is considered a more liberal or generous place for your case as opposed to DuPage County which is considered a more conservative or stingy place for your case.  Jury pools in Cook County tend to be diverse in socioeconomic background and tend to take a dim view of corporate shenanigans as opposed to a county like DuPage where you have more corporate types who tend to take a dim view injury claims. These are broad generalizations, however they have support based on jury verdicts. If you have an uninsured or under insured motorist claim headed for arbitration, the arbitrator or arbitrators are critically important in evaluating your claim. It is important to know the inclinations of the arbitrator(s) and his or her experience and practice areas.

Eye of the Beholder

Are you likeable? Are you presentable? People are more prone to provide full compensation to someone who tends to be more likeable and presentable. This is a fact of human nature. These inclinations have been proven in experiences and study after study. We have done focus groups, spoken with jurors, negotiated with insurance adjusters, negotiated with defense attorneys, and there is an undeniable “x” factor that plays a role in resolving injury claims. Whether a case is settled by negotiations or decided by a jury, how a person looks and acts can be important factors. Let’s face it, we all tend to like or dislike people in our lives, in part based on how they walk, talk, look and conduct themselves. An honest look at that part of yourself will be helpful in getting a fair assessment of your claim.

Conclusion

You are best served by having an idea about how to evaluate your injury claim. You need a guide or framework within which you can analyze your claim. You must begin with the end in mind. In other words, if your goal is $100,000.00, you have to justify that amount. And in order to come up with a settlement goal, you must understand the basic elements of damages: pain, disability, medical expenses and income loss.  You must also know how to evaluate the nature and extent of your injury and whether or not the injury is permanent. The claim evaluation is as much an art as it is a science. It also may involve an ability to properly present your case and argument in favor of your claim.

Contact a Chicago personal injury lawyer if you would like to file a Chicago injury claim. Call Meyer & Blumenshine for a Free Consultation – (312) 263-1000

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To “litigate” is to fight in court. Insurance companies often litigate. (See footnote 1 below). For those of us fighting insurance court battles on behalf of consumers, it often seems that insurance companies force people to fight for the smallest of policy benefits.  Insurance companies often rely on technical insurance policy fine print to delay or deny paying claims. Sometimes, the courts hold insurers in check.

The Illinois appellate court recently struck a blow for common sense and fairness in the insurance claims law.  In their written opinion, the justices ruled that an insurance company may not use an insurance policy cooperation clause to attempt to avoid a claim without good faith cause. Progressive Direct Insurance v. Jungkans, 2012 IL App (2d) 110939 (Kendall County 6/27/12).

The seriously injured consumer was named Kyly Jungkans. He received some compensation from the insurance company for the liable driver. Kyle signed papers to receive the compensation from the liable driver’s insurer.  Due to the inadequate liability insurance, Mr. Jungkans then requested that his insurer, Progressive Direct Insurance Company, provide him with under insured motorist benefits. Mr. Jungkans had purchased under insured motorist coverage in the event he sustained injuries at the hands of a driver with inadequate liability insurance. The unfortunate event arose, and Mr. Jungkans then asked his insurer Progressive to honor the insuring agreement.

Progressive Direct, however, denied Mr. Jungkans’ claim. Progressive stated that Mr. Jungkans violated the “cooperation” clause. Progressive argued that the “cooperation” clause in the Progressive policy required Mr. Jungkans to notify Progressive and obtain Progressive’s approval prior to settling with the at fault party and his insurer.  Progressive argued that the settlement with the at fault insurer prejudiced Progressive’s reimbursement right.

Mr. Jungkans’ lawyers pointed out that Progressive did in fact know of the settlement, (because it had been reimbursed $5,000.00 by the at fault insurer). Mr. Jungkans also argued that the at fault driver had no income or assets so that Progressive had no realistic right of getting any reimbursement from the at fault driver. In other words, Progressive suffered absolutely no prejudice by way of the settlement because it knew of the settlement, and because it had no chance of reimbursement from the judgment proof at fault driver.

The Illinois appellate court noted that many other state courts have held that an insurer may not rely on a technical violation of a cooperation clause to deny coverage if the tortfeasor with whom the insured settled was headed for jail and without assets or income.

“We agree that “[a]llowing an insurer to avoid coverage when it lost subrogation rights which carried no reasonable possibility of collection beyond the tendered policy limits would constitute a forfeiture and ‘would produce an undeserved windfall to the insurance company.’ ”

In a notably sarcastic tone, the court ruled: “The cooperation clause exists to protect the insurance company’s substantial interests, not merely to afford it the chance to litigate for the sheer joy of it. We also note that the substantial-prejudice rule requires just that: substantial prejudice. Thus, the theoretical possibility that the tortfeasor might win the lottery or inherit millions before the statute of limitations runs (neither having happened here yet) does not create a reasonable possibility that the insurer will obtain significant relief by pursuing an action against him. As one court noted, allowing such far fetched theoretical possibilities to amount to substantial prejudice would ‘completely negate’ the prejudice requirement.“  In colorful terms, the Illinois court here struck the insurer’s heavy handed use of insurance policy verbiage.  Insurer’s thus may not rely on inapplicable policy terms and force a court fight, just for sport.

The Illinoiscourt thus rejected the insurer’s unjustified reliance on a technical policy term. A civilized society needs fair laws. One purpose of the law has been said to be to “protect the weak against the strong,” (US Supreme Court in Halter v. Nebraska., 205 U.S. 34 (1907)). When our courts step up and prohibit insurers from relying on inapplicable technical insurance policy language, insurance consumers have a more level playing field in seeking insurance benefits.

1. Insurance companies have a tremendous fund of knowledge, rightfully gained, regarding insurance practices, the nature of claims, the types of disputes and the number of private ordering arrangements that can be made. The insurance consumer cannot match this information. Menke v. Country Mut. Ins. Co., 78 Ill.2d 420, 401 N.E.2d 539 (1980).

Insurance “games”? Insurance is serious business right? You buy insurance for the peace of mind you are provided against unforeseen loss.  Insurance company advertisements promise the warm fuzzies of protection to you and your family.

And certainly, many claims are paid promptly and fully. Certainly, some claims are without merit and are properly denied. What is unacceptable, however, are insurance company claims handling procedures that are used for the sole purpose of delaying and denying meritorious claims.

What are insurance company claims games?

Any insurance company claims handling activity that is motivated by the goal of improperly delaying or denying a claim payment may be part of a “game” that you may not be prepared to “play.” Those of you who have encountered an insurance company delay or denial may have unwittingly entered the process.

We understand that insurance companies are profit motivated corporations formed and managed with the goal of returning investment to company owners. The courts and regulators have, however, noted that certain insurance business involve a public trust. Auto insurance policies, for example, are mandatory in order to establish some compensation for those injured on public roadways.  Thus insurers must be held to a higher standard of conduct. Their actions affect the public.

What are examples of claims games?

The following activities are examples of insurance company claims games:

-          taking statements from claimants while they are suffering the physical and emotional effects of their injuries,

-          taking statements from claimants while they are under the influence of pain and other medication due to their injuries,

-          requesting claimants to sign authorization forms disclosing private personal information,

-          advising or suggesting to claimants that they do not need legal representation,

-          attempting to settle a claim before the nature and extent of injury or damage is determined,

-          misrepresenting insurance policy provisions,

-          failing to advise of insurance policy provisions,

-          portraying itself as the claimant’s friend, counsel, or advisor,

-          making inaccurate statements about the law,

-          making inaccurate statements about the facts,

-          requesting duplicative information,

-          taking advantage of a claimant’s compromised physical and financial condition to secure an unfair settlement,

-          requiring a lawsuit to be filed in order for a claimant to recover,

-          using computer programs to determine the “value” of personal injuries,

-          failing to fully investigate a claim by, for example, not interviewing witnesses, and,

-          any tactics that unfairly use an insurance company’s position of power and  knowledge, to exploit  the insured’s position of physical and financial vulnerability, weakness, or naiveté.

Anything that an insurer does to wrongfully deny a claim, delay a claim, take advantage of a claimant, frustrate the claimant, wear the claimant down, or exhaust the claimant’s resources is a game. In short, any insurance company claims tactic that is not designed to honestly and fairly evaluate and resolve a claim is a game. I represent individual claimants. I have seen the tactics. But I do believe that is possible to make an objective determination as to what is legitimate claims evaluation and what is pure game playing. What is going on in much of the area of insurance claims handling is gamesmanship.

A prime example of claims games is demonstrated in articles that appeared in Business Week and the Chicago Tribune. The stories discussed the tactics of a major insurance company that seeks to put people in its “Good Hands.” The articles revealed that a major overhaul of the insurers claims process involved putting on “Boxing Gloves” to deal with claimants. The company denied much of the story, but those of us who toil in the field, know the Boxing Glove approach. Delay and Denial are the marching orders.

Distracted driving is epidemic. A poll released by Harris Interactive/HealthDay, indicates that most adults who drive on a regular basis readily admit to having engaged in distracted driving behaviors. Eating and drinking lead the list at 86%, talking on non hands free cell phone 59%, using a GPS 41%, texting 37% and applying make up 14%.

Distracted driving is dangerous. In 2010, 3,092 people were killed in crashes involving a distracted driver. An estimated additional 416,000 were injured in motor vehicle crashes involving a distracted driver. 18% of injury crashes in 2010 were reported as distraction-affected crashes.

Driving distracted is easy. As my 17-year-old daughter Audrey answered in response to the question why do so many people use cell phones while driving: Cell phone use is “normal.”  We use cell phones all the time, so why not while driving?

Cell phone use is a major cause of distracted driving. We think we can multi-task and do it well. We cannot. Research studies show that a multi-tasking person does nothing as well as the sole task person. Research studies show that multi-tasking results in poor performance, slow performance and non-performance.

I am reading a book called Brain Rules by molecular biologist John Medina. In the chapter on Attention, the author writes: “The brain cannot multi-task. Multi-tasking, when it comes to paying attention is a myth.” Wow. I thought we can all walk and chew gum at the same time. Yes he says, you can walk and chew gum at the same time, but he is talking about the brain’s ability to pay attention. He says the research firmly establishes the fact that our brain’s can only focus on thing at time.

For drivers, this is critical information. We think we can talk on the cell phone and drive well. Science establishes that we cannot talk on the cell phone and drive with maximum safety. Research shows that a driver on a cell phone has reaction times similar to a legally intoxicated driver with a blood alcohol content of .08. Research shows that a driver who is texting is twice as dangerous as that of a person at the legal level of intoxication. That is scary information.

Recently, I was privileged to present End Distracted Driving  presentations to students at York High School in Elmhurst, Illinois. The students were mostly in Drivers Education class, so they are ready to go. These young people are at the front lines of the soon to be driving public.  The experience of sharing with and hearing from the students was an eye opener. Guess who they seemed to single out as the worst offenders when it comes to distracted driving? Yes, parents.

We must work to make safe, undistracted driving “normal.” And we can all take a couple simple steps to do that. One step we can all take is to put away the cell phone when we drive.  A second step is to speak up when we see others using their cell phone while driving. Let’s make safe driving “normal.”

Photo by Kyle May

This year, approximately 43 million people will attempt to tackle a home improvement project of some kind. According to the Home Safety Council, one in five of these ambitious folks will be injured in the process. Trotta, G (2011, June 09), Do-it-Yourself Projects That Lead to the Most ER Visits, Consumer Reports.  Many “big box” stores and other retailers attract people to their locations with the promise of being able to save money and enjoy the satisfaction of doing it on your own. However, injuries to do it yourselfers can occur before a project even begins. One customer injured at such an Illinois store was Anthony Pullia. He sought compensation for his injuries. The Illinois Appellate court described the basis for the store’s liability.

Mr. Pullia set out to buy posts at a local home improvement store for a backyard fence he was building. At the store, the posts hung from racks that were attached to a wall in the self-serve section of the store. The posts Mr. Pullia wanted were just out of his reach. A store employee said he would help Mr. Pullia “in a minute”, but after 20 minutes of waiting, no employee appeared to assist. While attempting to get the posts himself, Mr. Pullia stepped up onto a lower ledge and held onto the rack’s face plate for support. Using his other hand, he removed the desired fence posts from the rack, and placed them on the floor. Mr. Pullia then turned and began to step off the rack arm when he felt his wedding ring catch on the rack face plate. He was unable to stop his downward momentum, and his finger was completely severed at the knuckle.

Questions for the court included: Did the home improvement store subject Mr. Pullia to an unreasonable risk of harm? Is it reasonable to expect that a customer might try to climb the rack to retrieve goods in the self-service section? Did the home improvement store do anything to prevent customers like Mr. Pullia from being injured at their place of business?

Businesses have a responsibility to keep their premises safe. 740 ILCS 130/2. Generally, in Illinois, a possessor of land owes an invitee on the premises a duty to use reasonable and ordinary care in keeping the premises reasonably safe. Stores and other businesses that encourage customers to put themselves at risk of serious injury without proper warnings need to adapt so that disabling injuries like Mr. Pullia’s do not happen to others.

The court ruled that the home improvement store knew (or should have known) that displaying merchandise beyond the reach of customers of ordinary height subjects them to an unreasonable risk of harm. Displaying merchandise in such a manner encourages the self helper to step on lower shelves to reach goods on the upper shelves. Store owners who desire to stack merchandise vertically in order to increase profits should be liable for a customer’s foreseeable injury resulting from the practice. Providing an accessible shelf of goods encourages self-service customers to step up to retrieve goods. Also, the store should have expected that self-service customers who want to purchase goods just beyond their reach might try to find other ways to grab items on their own, and that those customers might not realize how much danger they are subjecting themselves to. Finally, the court determined that the store failed to do enough to warn or protect customers against the danger of stepping onto the racks. A simple sign or barricade could have prevented the mishap.

The lesson is that businesses to have an obligation to anticipate and warn against foreseeable dangerous conditions.

Article Co-Authored by Maxwell Brown