Attorney
Ever since Liebeck v. McDonald’s Restaurants entered the public consciousness—the hot coffee case—there has been a notion that personal injury suits are a lottery ticket. In reality, the law and a number of practical considerations combine to exert downward pressure on the compensation a Plaintiff can recover for his or her injury. But a skilled attorney can do a great deal to ensure the best outcome.
Insurance
The first practical consideration when determining the value of an injury case is insurance. For example, in a car accident, drivers in Florida often do not carry more than $25,000 in bodily injury coverage, and $100,000 in uninsured/underinsured coverage. Although the at-fault driver would theoretically be liable for whatever the value of the injury, realistically they likely do not personally have the funds to make such compensation. Therefore, the available insurance (called the policy limits) sets the practical ceiling for most plaintiffs’ recovery.
Out of Pocket Expenses
Next, the recovery amount itself is largely determined by calculable out of pocket expenses. For example, what are the past medical bills? What are the reasonable expected future medical bills? What was the lost earning potential during the period of injury? These numbers are usually concrete and easy to obtain.
Other Damages
There are, of course, categories of damages available that are not so easy to calculate, such as “pain and suffering,” “disfigurement,” “mental anguish,” and “loss of enjoyment of life.” It is important to point out, however, that courts and juries are often hesitant to award compensation for damages that are hard to understand, and significant evidence is often required to justify such damages. For example, proving “mental anguish” will likely require more than the bare testimony of the plaintiff as courts will want to see a record of therapy attendance and hear the opinion of an expert.
Health Insurance Subrogation Liens
An often-overlooked limiter of the “value” of an injury case are subrogation liens. Although subrogation is generally understood as a legal right held by insurance carriers to pursue a third party that caused the loss to the insured, a plaintiff’s insurance carrier can also pursue recovery against their own insured’s recovery. This means that, if a medical insurer pays out $10,000 to cover a plaintiff’s medical bills, and the plaintiff recovers $30,000 from the negligent party, the plaintiff’s medical insurer can put a $10,000 lien on his or her recovery. Thus, reducing the Plaintiff’s overall “take home.”
Laws Limiting Recovery
Finally, certain laws can seriously set limits to what can be recovered. Wrongful death cases furnish a surprising example of this. According to Fl. Stat. 768.21 the value of a life is determined by considerations such as “lost parental companionship,” “Medical or funeral expenses,” and “loss of the prospective net accumulations of an estate”—meaning that the life of a 40-year-old man with no children, making minimum wage, may in fact be worth very little in the eyes of Florida law.
Signficance
Notwithstanding all the foregoing considerations, a jury trial remains a great tool to the Plaintiff’s advantage. A clear willingness to take a case to trial, coupled with good preparation, will make an insurance adjuster nervous of an uncertain outcome and more likely to tender a fair offer.
Although a lawsuit for an injury is indeed not a lottery ticket, and a high recovery usually means a significant injury (a situation no person wants to be in), it is nevertheless imperative that an injured plaintiff be made whole for injuries caused by a situation that is not his or her fault. A realistic understanding of what can be accomplished is important, and a skilled attorney to ensure the best outcome is achieved is necessary.
If you have been injured and need representation, contact the attorneys at Boatman Ricci to set a consultation today.
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