Do I need a lawyer if the insurance company is offering me a settlement?
Let me answer that question with a question: Would you perform surgery on yourself? Settlement of a legal claim is a serious matter. It usually pays to have help from an expert; a review of your case by our firm is free.
Insurance companies usually want to settle quickly. The reason for this is they know that, in some cases, injuries become more serious over time. There are many examples of this. One known medical phenomenon is the masking of pain in one area of your body due to an injury in another. For example, you may have hurt both your neck and a knee in an automobile collision. The knee pain might be so severe that you don’t realize that you also hurt your neck until the knee pain subsides weeks, or even months, following the injury. We have had several cases of minor head trauma which, quite some time following the injury, turned out to have aggravated an aneurysm.
If you settle your case before the full extent of your injury is known, there is likely nothing that can be done for you if additional injuries are later discovered. In one notable case, we represented a client whose head trauma did indeed result in a ruptured aneurysm. However, when we contacted the insurance company, we found out that our client neglected to tell us that he signed a general release shortly after the accident for one hundred dollars. He gave up what was likely a six figure settlement for less than the cost of a week’s groceries.
Is it too late to get a lawyer if I already signed a release?
Please note that Pennsylvania law does impose some restrictions as to when and where a general release may be signed. In very rare instances, it may be possible to set aside a release that a client has signed, but this is unusual indeed. If you have signed a release while in the hospital, within 15 days of your injury, or while incapacitated in some fashion, please contact us to review the circumstances of your case.
Can a lawyer get me a bigger settlement?
The most important reason, however, for having legal representation is to make certain that you receive an adequate settlement. We often meet with clients who have received an offer from an insurance company. Occasionally a fair offer is made and we will tell you if we don’t think we can improve upon it. However, it has been our experience that even after payment of legal fees, the net amount that the client receives is usually greater than what the insurance company had offered. Often the net result to the client is substantially better, even after payment of legal fees. So in effect the client has the benefit of having a lawyer and it effectively costs nothing in circumstances where the net result is better than the insurance company’s offer.
Why is this true? You don’t need to accept our experience alone. Let me quote from a book that is little known outside the insurance industry. It is called An Introduction to Liability Claims Adjusting by Corydont Jons. This is a book that has been used in training courses for insurance adjusters. Let me quote from the text:
If you have offered everything the case is worth, there is no more to offer. The case has no increase in value simply because an attorney has been engaged. Therefore, the widely recognized principal: “Never spend your top dollar until you think you can buy something with it.” This dictates caution and restraint in one’s final offer to a claimant.
The author is correct that merely because you have a lawyer your case is not made more valuable. However, insurance companies recognize that when they make an offer, the person receiving the offer may hire a lawyer. Once an attorney is retained, the client will usually not settle unless they net at least what they were originally offered. Therefore, if the insurance company wants to settle the claim, they will have to pay more.
While we usually are able to improve upon what the client has been offered, of course there is no guarantee. There may be facts that come to light that affect the value of the case one way or the other. Even if the client does not realize any improvement over what the insurance company had offered, they have received the benefit of professional representation. The client may have other issues or concerns beyond the settlement of the claim. The client may have concerns about future medical bills or providing for their family in the future. These are types of things which the other party’s insurance company couldn’t care less about, but our lawyers will be glad to help you with these concerns.
When should I hire a lawyer?
Remember that the best time to retain a lawyer is as soon as possible after an injury. At Bernard Stuczynski & Barnett we are always happy to provide a free evaluation of your claim. If you have received an offer from an insurance company, it makes sense to contact us to review if your offer was fair. Once we review everything that is known about your case, we will likely advise one of three steps to take:
- The offer is reasonable and you should accept it;
- We think there is a good possibility we can do better; or
- Further investigation is necessary to determine whether it is a fair offer.
If you’re curious as to whether or not you are being offered a fair settlement, call our firm today for a free consultation. We’ll let you know.
State Courts, Federal Courts, and your Pennsylvania Insurance Claim
Everyone knows that we have a federal court system and state court system, but when asked to explain the differences, few people are able to do so. The purpose of this blog is to provide a short, basic summary of the difference between the two court systems and how it can affect your personal injury claim.
The federal courts are established by Article III of our Constitution. Federal judges are appointed by the President of the United States and are confirmed by the Senate for life. The federal courts decide cases that arise under specific federal laws which establish jurisdiction (the power to hear the case), in the federal courts. Examples of federal question jurisdiction are securities fraud, income taxation, bank robbery, and laws regarding the environment and telecommunications. In general, matters which affect “interstate commerce” can be regulated by Congress through law and the question of what is “interstate commerce” has been very generously decided in favor of the federal government.
Finally, federal courts are empowered to hear cases under what’s called “diversity jurisdiction.” This requires that the parties be citizens of different states and the case or controversy have a good-faith value of more than $75,000.00. While federal courts are usually regarded as more important by ordinary citizens, this is not the case. It is simply that the federal courts have distinct areas over which they have jurisdiction.
State courts hear cases which arise under the state or local laws of the state. The laws which impact us in most of the aspects of daily life usually arise under state law. For instance, laws regulating controlled substances, the operation of your vehicle (while intoxicated or not), real estate, decedent’s estates and our complete crimes code all arise under the state law. This also includes auto accidents, workers’ compensation, and various defective products cases. Under Pennsylvania law, these cases are all brought in the particular county in which the case or controversy arose.
Appeals are heard by either the Superior Court or the Commonwealth Court and further appeals can be heard by the Supreme Court of Pennsylvania. Pennsylvania judges are elected positions with a ten-year term, at the expiration of which the judge must stand for a “retention vote” to serve another term.
Federal and State Courts oftentimes have concurrent jurisdiction. In other words, a case can be heard by either of them. This frequently happens with insurance disputes.
While the regulation of insurance is a matter of state law, insurance carriers can and frequently will remove the case to federal court under diversity jurisdiction. There are many strategic reasons why this strategy is employed. For instance, in state court, Pennsylvania courts have decided there is no right to a jury trial in an insurance bad faith case, However, the federal courts in Pennsylvania have held that there is a right to jury trial in such cases.
This blog is intended to provide a basic summary on this topic. For more information and the application to a particular situation, you should obviously consult an attorney.
Is the insurance company offering me a fair settlement?
As experienced personal injury lawyers in Pennsylvania, we get calls from injury victims every day asking “is the insurance company offering me a fair settlement?” Although it happens once in a blue moon, the answer is usually “no.” Insurance adjusters are highly skilled at negotiating claims and convincing you that your case is worth less than its true value. Further, without an attorney, the insurance company has all the leverage. They know that you, without a lawyer, do not have any power to force the insurer to pay more than they’re offering by filing a lawsuit. Here are some things to watch out for in your negotiations and signs the insurance company is trying to take advantage of the fact that you don’t have a lawyer.
Four signs the Insurance Company is trying to take advantage of you:
Telling you that you don’t need an attorney
Insurance adjusters frequently tell people, “You don’t need an attorney; I’m offering you a fair value and attorney will simply take a third of whatever you get.” Although the adjuster might seem friendly and act like they have your best interest at heart, don’t let them fool you. The insurance company makes more money by paying you less money; it’s as simple as that. Why would you take advice from the person negotiating against you?
The fact of the matter is, a skilled personal injury attorney typically pays for himself in establishing the true value of your case and getting you paid what you deserve. The insurance adjuster doesn’t want you to retain an attorney because it saves them money.
It never hurts to at least sit down for a free consultation. Although rare, I have personally told people during a free consultation that the insurance company’s offer is reasonable and that it doesn’t make sense to hire me—it just doesn’t happen often. I’m always happy to sit down with people to figure out what’s best for them. If someone tells you that you shouldn’t speak to a lawyer, red flag should go up in your head that they’re trying to take advantage of the fact you haven’t retained counsel.
Making quick settlement offers within weeks or months of the accident
Very few cases are ready to settle within weeks or a few months from the accident. As a practical matter, a case should almost never settle before the full extent of your injuries is known. After a bad accident, it’s common for insurance adjusters to call you with quick, easy settlement offers, hoping to settle your case for pennies on the dollar. They want to settle before you’re diagnosed with something more serious that entitles you to more money.
Unfortunately, it is more common than you’d expect for serious injuries to go undiagnosed for months or even years after an accident. That “crick” in your neck could be a herniated disc requiring a fusion and discectomy and could be the difference between a missed week of work and a lifetime of disability with crushing medical expenses. Our office can help show you how to make the insurance company pay for your medical treatment so you can have a specialist figure out whether or not that pain is something serious. Don’t let the adjuster make your medical decisions.
Even though you might be losing wages and need money now, there are always more options. Don’t make the mistake of settling too soon. If something seems too easy or sounds too good to be true—it probably is. Our lawyers will make sure you don’t settle your case before you’re ready.
Telling you that you aren’t entitled to pain and suffering because of “limited tort” car insurance.
If you have “limited tort” car insurance, the insurance adjuster will almost certainly try to tell you that you aren’t entitled to money for your “pain and suffering.” What the insurance company won’t tell you is that there are a number of exceptions to limited tort. Although the exceptions are narrow and difficult to meet, an experienced personal injury attorney knows how to build your case and prove that you’re an exception to limited tort.
Moreover, there are certain things your own insurance company needs to do after you elect “limited tort” in order to restrict your rights. We know how to order the records to see if you truly even picked limited tort at all.
If you have limited tort, the insurance company is going to underpay you on your claim. You need an attorney to help you prove you’re the exception.
Asking you to sign authorizations for your personal medical records
Never sign anything without having a lawyer look it over. While it’s true that you give up some privacy rights when you make a claim, you don’t give up all your privacy rights. The insurance company simply isn’t entitled to blank authorizations to get all the records they want. They’re only entitled to relevant records. The adjuster is looking to get all your medical records from your past in order to look for that one time you complained of back pain in order to say that all your problems are preexisting conditions. In court, we call this sort of request a “fishing expedition.” Regardless, we can prove that the insurance company is liable for aggravations of preexisting conditions anyway. Don’t let them tell you otherwise.
When you hire our firm, we order and front all costs for obtaining your medical records ourselves so we can pull out things that are irrelevant and private. The insurance company doesn’t get to know about that weird bump or whether or not you’re pregnant—they get records on your injury.
Do I need a lawyer?
While this list could go on and on, those are four big signs that that the insurance company is trying to take advantage of you. When it comes to negotiating a claim with an insurance adjuster, the old maxim remains true: If you have to ask whether or not you should get a lawyer, you should probably get a lawyer. If you’re still not sure, call my office for a free consultation. I’ll show you what my firm and I can do for you. And if you want to hire us, remember that we don’t charge a fee unless we get you a financial recovery.
What is an uninsured motorist claim?
As Erie, PA personal injury lawyers, we have discovered that, unfortunately, many dangerous drivers in Pennsylvania are driving without any insurance—which can leave you “holding the bag” after being badly hurt in an accident. As a practical matter, if you were seriously hurt in such an accident, it is rarely worth it to file a lawsuit against an uninsured driver personally: uninsured drivers usually do not have any assets valuable enough to compensate you for your injuries and months of missed work. Uninsured Motorist (UM) coverage is car insurance coverage that applies when an uninsured driver is responsible for bodily injury damages caused to you in an accident. If you elected to add UM coverage to your insurance policy, your auto insurance will provide coverage for your injuries if the other driver was uninsured. Electing to add UM coverage to your policy is important and is usually good value.
Insurance carriers in Pennsylvania are required to offer the purchase of UM coverage in an amount equal to the liability coverage on your policy. For instance, if you purchased $100,000 in liability coverage, your insurer must offer you the ability to purchase at least $100,000 worth of UM coverage. You may elect to carry any amount of UM coverage below or equal to your liability coverage or you can reject UM coverage entirely. Our personal accident lawyers recommend that you carry as much UM coverage as you can afford. If you are willing to pay $100,000 to provide bodily injury coverage to other drivers, why wouldn’t you pay a smaller premium to provide the same coverage to protect yourself?
For a clearer understanding of UM coverage, we have listed several instances in which it potentially applies:
- If the other driver’s insurance company becomes insolvent or goes out of business (this has occurred on many occasions when our clients are pursuing claims);
- The other insurance company denies coverage due to a policy exclusion. For instance, there is coverage on the vehicle, but the driver is excluded;
- The accident was a hit-and-run and the driver flees before you obtain his license plate number; and
- An unknown driver runs you off the road and then speeds away. This circumstance is known as a “phantom vehicle” claim.
How does having an uninsured motorist claim affect my rights?
While claims involving uninsured drivers are difficult, our personal injury lawyers have pursued many such cases. It is important to note that UM claims are contractual—which can affect the statute of limitations and the timeframe in which you must make a claim; it can also require you to take particular steps in accordance with your insurance policy in order to preserve your right to make such a claim. Failure to follow such steps can potentially preclude you from recovery. If you hire one of our lawyers to represent you in your uninsured motorist claim, our, Erie, PA lawyers will review your insurance policy and make sure your claim is preserved and your rights are protected.
To learn more about Pennsylvania car insurance coverage, read our article on Understanding Car Insurance.
What is Insurance Bad Faith? Has Your Insurance Carrier Acted in Your Best Interests?
Insurance bad faith may be a term you have heard mentioned at some time or another. It is often used in articles, legal ads, and a variety of similar sources. Insurance bad faith refers to the improper conduct of your insurance company in the handling of your claim. Not every insurance claim denial by your insurance company constitutes insurance bad faith.
As defined by Pennsylvania case law, insurance bad faith occurs when your insurance company knowingly denies a claim which it knows to be valid or which claim is denied in reckless disregard. The simple denial of a claim by your insurance company does not establish bad faith. Case law requires that the insured (you) must prove, by clear and convincing evidence, that their denial involves a knowing and intentional denial of a valid claim. Your insurance company owes you very high duty under the law to process your claim, which is sometimes referred to as a “fiduciary duty.” This duty requires them to put their obligation towards your claim before those of its own in processing claims. It is important to distinguish the duties owed to you by your insurance company versus the duties owed to you by the “other guy’s” insurance company. The “other guy’s” insurance company owes you absolutely no duty. So its denial of your claim does not constitute bad faith (at least as to you). Any duties to the other party are to its own insured only. Read more about we can help you with insurance bad faith.
Insurance bad faith law is an extremely complicated subject. Pennsylvania law defines several types of bad faith. For instance, common law bad faith is conduct the courts traditionally would declare as improper. In 1990, Pennsylvania passed its first bad faith law; “statutory bad faith,” which legislatively created the law that declared the intentional conduct of insurers to be in bad faith. Various statutes like the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL) also provide a separate remedy for improper denial of claims.
Why is the ability to establish your insurance company acted in bad faith so important? Traditionally, the insurance companies would often deny many valuable claims. The reasons were that there were no consequences for the improper denial of a valid claim. If the insured was able to establish the claim was valid through litigation, the result was the insurer had to pay the claim. There were usually no other adverse consequences to the carrier. Now, with Pennsylvania insurance bad faith statute and case law, the intentional denial of a valid claim can result in various penalties imposed on your insurance company. These penalties can include interest, attorneys’ fees and additional damages to punish the insurance company for its conduct. Those amounts could be substantial, depending upon the circumstances of the case.
It is important to note that not all insurance companies can be sued in bad faith. A workers’ compensation insurer is typically immune to bad faith claims. An employee benefit plan through your employer is also immune. These special situations are complicated.
If you believe your insurance company has wrongfully denied your claim, it is important you contact our Erie lawyers. This article barely scratches the surface of insurance bad faith. Contact our insurance bad faith lawyers to further discuss if you are the victim of insurance bad faith.
The insurance adjuster asked me to give a recorded statement. What should I do?
Although insurance companies participate in a complex industry involving complicated laws and regulations, insurance companies have a simple business model. Claims paid and overhead expenses are deducted from premiums paid and investment returns to give the insurance company its profit. The insurance industry is big business, with insurance companies making billions in profits.
An insurance company’s biggest expense is insurance claims paid. The less an insurance company has to pay in claims the higher the insurance company’s profit. Insurance companies train their employees to look for loopholes and defenses to valid and legitimate claims in an effort to pay as little as possible on each and every claim. The effort to minimize payment on a claim begins when you initially report your
When you initially report a claim, either to your own insurance carrier or to the insurance carrier of the negligent party, know that the insurance adjuster you are speaking with is very familiar with the fine print of the applicable insurance policy. Insurance adjusters are trained to look for loopholes and exclusions found in the fine print of the applicable insurance policy so they may seek to deny payment of any kind under the policy. Do you really think you know the fine print of your insurance policy better than the insurance adjuster?
Additionally, insurance adjusters are trained to find ways to create a record that allocates blame to someone other than their insured and minimize the injuries of all involved. Insurance adjusters attempt to create this record as soon as they are aware a claim is being made.
You should never, under any circumstances, provide any insurance company with a recorded statement without first consulting with an attorney.
This rule even applies when it is your own insurance company asking for the recorded statement. The sole purpose of obtaining your recorded statement is for the insurance adjuster to create a formal record unfavorable to your claim before you have legal representation and before you may even know the full extent of your injuries. The insurance adjusters are trained to create a record that they can and will use against you.
Do not allow the insurance company to take advantage of your good will and misplaced trust. Contact our office for a free consultation to discuss your rights and responsibilities when communicating with insurance adjusters about your claim.
Full Coverage vs. Full Tort Insurance
The Motor Vehicle Financial Responsibility Law (MVFRL) took effect in Pennsylvania in July of 1990. It created the concept of limited tort and allowed consumers to select that coverage on their auto policies. Although we have been governed by this law for over 25 years, it still is a source of great confusion for most consumers.
One particular problem I have experienced with many clients is the confusion between “full tort” and “full coverage.” Understanding the distinctions between these terms can make a real difference in a potential recovery for accident victims.
What is Full Coverage?
“Full Coverage” is not defined in the law, but to consumers the term typically has meant that your auto policy includes collision coverage. In other words, your policy includes coverage to replace or repair the insured vehicle when it is damaged in an accident, even if the accident was entirely your fault. Your policy can also include comprehensive coverage, which will provide for repair or replacement of a vehicle which becomes damaged, but not by operation of the vehicle (namely, theft, fire, a falling branch, etc.). Many people opt not to purchase collision coverage because it is typically the most expensive coverage, particularly when the insured vehicle is older and the policy payment is less.
What is Full Tort?
“Full Tort,” on the other hand, refers to the ability of the insured to pursue a claim for injuries without restriction in the event of an accident. Thus, a policy may have both full tort and full coverage. Conversely, it may have neither. The two terms are distinct and should not be interchanged. You need not include collision coverage on your policy, but you should not confuse this with whether or not you have a full tort election.
To learn more about “full tort” versus “limited tort” car insurance, please read our article on Understanding Car Insurance Coverage. If you were in an accident in which you suffered injuries, call our office for a free consultation.