The In’s & Outs Of Personal Injury Claims

Negligence Prima Facie

Personal injury claims can only move forward after plaintiffs establish in their pleadings the four elements of a prima facie case for negligence (a claim accepted as legitimate until proven differently).

• Duty of Care: Proof the defendant had a responsibility to avoid conduct that could reasonably cause foreseeable to harm to others.
• Breach of Duty: An assertion the defendant acted wrongly or omitted to act when they had a legal obligation to do so.
• Causation: Conjectures that ascertain the defendant’s breach of duty actually caused the plaintiff foreseeable injuries.
• Damages: Evidence of natural injuries arising from the accident or out-of-pocket expenses appearing from the defendant’s negligent act or omission to act.

Negligence Defenses

Personal injury lawyers for defendants regularly argue the other party was partially or totally liable for the accident that brought the injuries.

Contributory negligence and comparative negligence defense rules differ among the states. But generally speaking, the courts may strike down or lower (mitigate) a plaintiff’s demand for redress if the fact finders discover he or she shares some responsibility for the accident.

Comparative fault statutes allow for a complete bar from recovery when the plaintiff’s negligence exceeds the defendant’s.

Comparative negligence rules reduces a plaintiff’s award by the proportion he or she contributed to damages.

In both defenses, the burden rests with the defendant to present clear and substantial evidence that proves the plaintiff acted negligently in the applied case.

Counter-defenses can defeat contributory negligence and comparative fault contentions. Personal injury lawyers like the ones found at Sanders Phillips Grossman know how to assert effective counter-arguments, including the last clear chance doctrine which suggests even if the plaintiff shares blame, the defendant could have prevented the injury, but elected not to do so.

Assumption of risk defenses can also bar or reduce a plaintiff’s right to recovery; defendants argue here that the opposite party recognized and understood an express or implied risk of harm may take place and negligently chose to engage it.

Again, personal injury lawyer authorities subdue assumption of risk defenses by asserting defendants cannot affirmatively show the plaintiff knew of ALL risks at the time of the injury.

Personal Injury Settlements

According to Black’s Law Dictionary, parties settle ninety five percent of personal injuries out of court. This means American courts only hear five out of every one hundred personal injury claims filed in their jurisdictions.

Out-of-court settling became the norm in personal injury lawsuit proceedings many years ago after lawyers discovered that reaching compensatory agreements among parties was a lot cheaper than spending time and resources litigating personal injury claim to finish.

Settlement negotiations usually start after discovery and may take time to work out when plaintiffs seek extraordinary damages or when one party engages in power bargaining dispute resolution approaches. Plaintiffs receive settlements in consideration for giving up their right to sue defendants.

Sometimes personal injury defense lawyers purposely bring negotiations to a halt to assess the plaintiff’s eagerness to settle. Sanders Phillips Grossman attorneys know how to deal with this and other defense negotiation tactics by countering standstill cases with stupid patience which assures their clients receive adequate and just settlements.

Cash Payouts

Contrary to popular opinion, cash settlements do not put plaintiffs in stronger financial positions; the courts will only uphold settlement agreements that place injured parties in the same standing as they were before the accident took place.

Cash payouts typically cover itemized out-of-pocket expenses; indemnify subsequent recovery expenses; reimburse loss wages; and provide for reparations for an individual’s suffering or quality of life losses.

Settlements money often includes legal fees on top of damage awards. Personal injury plaintiffs may also agree to payment via structured settlement annuity which offers him or her regular tax-free income for a limited amount of time.

Structured Settlements

Structured settlements are now popular among personal injury claims; these types of payouts are essentially annuities that afford individuals fixed income over lengthy periods of time. The courts routinely provide for structured settlement annuities on larger awards or whenever paying lump-sums would place unreasonable burdens on defendants.

Insurance companies create structured settlements by turning lump-sum cash into financial products and use the settlement agreement as the regnant document for measuring how and when plaintiffs are paid.

Post settlement statistics reveal that most plaintiffs spend single payout settlements faster when making large investments in personal recovery; yet, when accident victims know precisely how much income comes in each month, it helps them to better finance healing and to avoid budgetary distresses.

And even when unforeseen events arise, plaintiffs who barter structured settlements can usually cash out their annuities for lump-sum payments minus administrative fees.

Structured settlement payments are also tax free, and unlike regular annuities, plaintiffs can assign their tax free settlement to an heir if their untimely death occurs.

The downside is that once the annuity starts, plaintiffs cannot renegotiate financial terms. Emergency lump-sum payments further take time to disburse, and the IRS most likely will tax the contingency payments along with any untaxed attorney’s fees.

Injury-Related Insurance Claim

When accidents occur sometimes a defendant’s insurance company may attempt to resolve the personal injury claim. In such a case, an insurance adjuster contacts the plaintiff and pursues to indemnify his or her out-of-pocket losses and personal damages as determined by the holder’s policy.

Most insurance coverage however contains policy dollar limits that may not be satisfactorily sufficient to redress all foreseeable harm in the personal injury claim. If the defendant consequently lacks the insurance coverage to make the plaintiff whole again, the party will have no choice other than to file a personal injury lawsuit.

It’s also a mistake for plaintiffs to conclude insurance adjusters are their allies. Insurance companies need to make profits and their adjusters will repeatedly try to settle personal injury claims for minimal compensation.

Negotiating with insurance companies is further unwise because plaintiffs may inadvertently admit fault; insurance attorneys often use a plaintiff’s inattentive testimony in court to demonstrate full or partial liability on his or her part.

Sanders Phillips Grossman advises their clients to abstain from speaking with insurance companies when personal injury claims are extensive. Yet, should plaintiffs inadvertently admit fault to insurance company employees, our attorneys can appeal to case law and assert legal counter-defenses to have the courts strike down evidence seized without legal representation.