Bodily Injury Claims and Settlement

Personal injury or bodily injury claims can seem overwhelming at first, but they don’t have to be. Let’s review how the bodily injury claims process works and the questions to ask when going through the process. 

Do I have a personal injury claim? 

First, you must figure out if you have a valid personal injury claim. There are 4 parts to a personal injury claim, they are as follows: 

  1. Duty
  2. Cause
  3. Breach
  4. Damage

This is legalese, put more simply, there must be negligence (a failure to act in a reasonable manner) and that negligence must lead to some tangible damage. If you were the one at fault, you do not have a claim.  In order to have a claim, you also obviously must be injured. You do not have a claim if someone knocks you down but you pop back up and do not have any injuries. (See the damages discussion below).

In Virginia, in order to have a valid bodily injury claim, you cannot be at fault at all.  Some states are comparative negligence states and other states are contributory negligence states. Virginia is a contributory negligence state, which means that you cannot be at fault at all in order to recover on your personal injury claim. For example, if you change lanes without signaling and are hit by a car going double the speed limit, neither driver has a valid claim because both share some fault.

What should I do for a personal injury claim? 

Let’s assume that you have a valid personal injury claim, meaning you were injured by the fault of another and you do not share any blame. What do you do? There are a few universal things to do in every case: take photos of the accident scene and the injuries, get treatment for your injuries, and report your injuries to your insurance company.

How much time do I have to file a personal injury claim? 

The statute of limitations on personal injury claims in Virginia is 2 years.  Generally, this means that you have 2 years from the date of the injury to file a claim, although there are exceptions to every rule based on special circumstances.

How to file a personal injury claim?

You have two options to pursue a personal injury claim; engage with the insurance company yourself or hire a lawyer to engage with the insurance company. With smaller claims, when the injuries are minimal and inexpensive, you may want to engage the wrongdoer’s insurance company yourself. Remember an insurance adjuster’s job is to resolve your claims for as little as possible.  However, many insurance adjusters are reasonable and fair so working with one directly may save you money versus hiring a lawyer. 

For large personal injury claims that may include more severe injuries, permanent injuries, death, or large medical bills it makes sense to get legal representation. To guide you in this decision, it is helpful to know what lawyers charge for personal injury claims. 

How much does a personal injury lawyer cost?

In Virginia, personal injury lawyers generally charge a contingent fee of 33%-40% of the total recovery depending on the type of claim. This means that you keep about two-thirds and the attorney receives about one-third of the settlement. Therefore, in some circumstances, you can do better without getting a lawyer involved.

How to file a bodily injury claim? 

You have two options for filing a personal or bodily injury claim. You can file a claim either by yourself or through a lawyer. Regardless of the route you take for your claim, below is a list of items to keep in mind when going through the claims process. 

Filing A Claim Yourself

When filing a bodily injury claim or personal injury claim yourself remember to collect your bills, any lost wage information, photos of the scene and photos of your injuries, other documents regarding your injuries, bills, or losses. Submit these documents to the insurance adjuster along with a demand for a set amount of money for compensation. Determining the compensation amount is up to you. Choose a compensation amount for your claim that you believe is fair, reasonable, and that would satisfy you for damages. Once you’ve settled on your ideal insurance payout amount, double that number. An insurance company will never pay you what you demand.

Tip: Insurance adjusters will try to offer to reimburse you for what your health insurance paid on your medical bills. Do not fall into this trap.  You are entitled to be reimbursed for the face amount of the bills, not just what a health insurer paid on those bills.

Filing A Claim Through a Lawyer

When working with a personal injury lawyer to file a claim, allow the lawyer to take care of the claim. The lawyer should work with you to develop your claim, collect the correct documents and bills, help you come up with a demand amount for compensation of damages and pain and suffering, and will present the facts of your personal injury or bodily injury claim in the most compelling way possible in order to maximize your recovery or compensation.

What is involved in bodily injury claim settlement?

Most bodily injury or personal injury claims settle.  However, in order to get the maximum settlement payout or compensation, you must be prepared to go to trial. Insurance adjusters understand the power of money and they may try to tempt you with a small insurance payout early in the process in order to get you to settle your injury claim for cheap and less than you deserve.  The small payout amounts from insurance adjusters typically are not enough to fully and fairly compensate you for your injuries and damages. Insurance adjusters will offer a higher settlement payout if they see that you are serious or that you are not willing to accept small payouts to go away.

Remember a claim settlement is final! It is in your best interest not to settle your personal injury claim until you have reached your maximum amount of recovery or settlement payout. Try to get the most you are able to demand from the insurance company, even if you do not get back to your pre-injury self.  If you settle your injruy claim too early, you may be selling your claim short considering ongoing effects and injury recovery. For example, what if you reach an injury settlement after six weeks for $1,500, then end up experiencing pain for another 6 months? In this case, a $1,500 payout for 6+ months of pain and suffering is too low for your compensation

Remember, you have 2 years to file a personal or bodily injury claim (There are exceptions to this general rule).  Therefore, don’t rush when going through the claims process. However, don’t miss your injury claim filing deadline either.  If you wait two years from the incident of your injury to try to settle with the insurance company, the insurance company will try to delay the settlement and payout.  I have seen insurance companies use delay tactics many times, so try to file your claim quickly. Please do not wait until the 2 year deadline to try to settle your claim.

Tip: Lawyers are very hesitant to get involved in a personal injury claim when the statute of limitations or the time limit a claim may be filed is close to appraching.  If you’re considering working with a personal injury attorney to file your claim, please act quickly after the incident and injuries happen and avoid waiting until two years post-accident.

How to determine bodily injury claim settlement amounts?

Ultimately the 2 ways to value a personal or bodily injury case are the amount an insurance company will payout and the compensation amount a jury will award.

There are a number of drivers of value that determine what an insurance company will pay or what a jury will award. The drivers of your payout or jury award compensation amount include the cost of your bills, the severity of the pain, the type of injury, the length of recovery time, loss of income, inconvenience, and the permanency of the injury.  

Generally speaking, you are entitled for reimbursement of the face amount of your medical bills regardless of whether or not you or your health insurer paid the entire amount. In some circumstances medical bill reimbursement can be a lot of money.  For example, you are struck in a motor vehicle crash and puncture your spleen. You undergo emergency surgery and a 5 day hospitalization. Your bills could cost $150,000 or more. You are entitled to recover the full amount of these bills in your settlement plus money for pain, suffering, inconvenience, and lost wages.

Tip: If you do not seek medical treatment after your claim injury, an insurance adjuster or court jury will discount your injuries even if you were legitimately hurt and experiencing pain and suffering.  It helps to follow up on medical treatment after an injury occurs.

Unsurprisingly, higher severity cases involving permanent injuries, permanent loss of wages, disfigurement, and death, will generate larger settlements and jury awards than soft tissue injuries (sprains).

With respect to death cases, the elements of recoverable damages are set out in Virginia Code Section 8.01-52:

1. Sorrow, mental anguish, and solace which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent;

2. Compensation for reasonably expected loss of (i) income of the decedent and (ii) services, protection, care and assistance provided by the decedent;

3. Expenses for the care, treatment and hospitalization of the decedent incident to the injury resulting in death;

4. Reasonable funeral expenses; and

5. Punitive damages may be recovered for willful or wanton conduct, or such recklessness as evinces a conscious disregard for the safety of others.

The amount of insurance coverage available will limit your settlement or verdict, no matter how badly you are injured. For example, I have represented a number of families in death cases where their loved one was struck and killed by a motorist with only $25,000 of insurance.  In each of those cases, we were limited to a $25,000 recovery even though the damages were huge. Of course there are exceptions to every rule. One exception to your compensation limit is the coverage of your own insurance policy.  If you have higher insurance coverage than the person that hit you, you may be able to use your insurance up to your policy limits. This is called underinsured motorist coverage (UM). Another exception to the amount of compensation available in a bodily injury claim is to collect money personally from the person who hit you.  However, the wrongdoer or person at fault must have valuable assets that you can claim, which in practice is rarely done.  Individuals with valuable assets generally have more than a $25,000 insurance policy. 

How to prove pain and suffering in a bodily injury claim?

Pain and suffering is a large driver of settlement and jury awards.  Some of the ways you can exemplify pain and suffering are through employment records or taxes demonstrating days missed from work, and proof of multiple doctor visits. You can also show proof of injury with medical records indicating weeks of physical therapy treatment and/or with photographs and videos of your injuries. Additionally, a list of your medication related to the injuries and the length of time that you were prescribed to take those medications.  

For permanent injuries, you would base your payout or monetary demand on both your past pain and suffering and your future pain and suffering, as supported by a medical expert. Additionally, for permanant injuries you would calculate the costs of your future medications and medical care and include that in your monetary demand to the insurance company or jury.

As mentioned above, you must have the documents and paperwork to prove your pain and suffering in an injury claim.  You cannot effectively show pain and suffering through your word alone, there must be documents and evidence to support your injury claim.  If you’re in pain from an injury, do not suffer in silence, go to the doctor. Your medical visits will help create a paper trail of your bodily injury to support your testimony.

If we at Cuthbert Law Offices can help you answer any questions about a bodily or personal injury claim or wrongful death claim, give us a call. We do not charge anything to chat. We are here to help.