When Should You Settle Your Personal Injury Case?
Following a car accident, slip and fall or some other event, eventually the claimant will be confronted with the possibility of settling their case. A settlement can take anywhere from a few weeks up to a few years depending on the injury. There are many moving parts in a personal injury claim. First and foremost, you must determine the filing deadline and/or notice requirements for your claim.
Always be Clear on the Notice and Filing Deadline
The statute of limitations governs, and limits, the period an injured party can bring a claim against the tortfeasor, commonly referred to as the negligent party. These deadlines vary from state to state and are widely dependent on the type of harm you may have suffered.
Generally, in North Carolina you must file a personal injury claim within three (3) years of the date in which bodily harm caused by the negligent act is—or should have been— known, whichever occurs first. However, in cases of medical malpractice, an action must be filed within three years (3) of the act or omission giving rise to the injury, or within two years (2) of the date of discovery, up to a maximum of four years if you could not have immediately known of or discovered your injuries. An exception is made for foreign objects left in the patient by a medical provider, e.g. a medical instrument left in the body by a surgeon. In this instance, the lawsuit must be filed within one year (1) of the discovery of the injury, but no later than ten (10) years from the date of surgery. However, wrongful death cases must be filed within two (2) years.
Other rules and/or exceptions may apply to your specific circumstances, but typically there are few exceptions to the statute of limitations. Claimants need to know how the statute of limitations applies to their specific situation because they may be forever barred from filing a personal injury claim and or being awarded a settlement (or be entitled to any kind of recovery whatsoever).
In addition to the statute of limitations requirement, there may be statutory notice provisions which you must comply with prior to filing your lawsuit with the court. Any injured party can bring a claim against the federal government, local municipality, county, and/or state agency, but these government agencies typically have provisions which require specific notice be given. In some instances, notice must be given to a designated representative of the government agency. Other notice requirements may require you to file a claim directly with a specific government agency. The time limit for providing the requisite notice is generally and explicitly shorter than the statutory limitations period to file your claim with the court.
The North Carolina Tort Claims Act (NCTCA), N.C. Gen. Stat. § 143-291, allows parties to bring a claim against the state of North Carolina in certain instances. However, there are specific rules, exceptions, and notice requirements you must comply with when you file a claim against a North Carolina government agency. The laws dictating what the government agency can be sued for and how to proceed with a claim are exceedingly complicated. The rationale behind these laws is that an employee working for the government, and the government agency itself, cannot be sued for an act which was done within the scope of his/her employment.
Government agencies and employees acting within the scope of their employment may be sued, but only for ordinary negligence caused by the government employee who was acting within the scope of their authorized service.
All claims against any and all State departments, institutions, and agencies shall henceforth be forever barred unless a claim be filed with the Industrial Commission within three years after the accrual of such claim, or if death results from the accident, the claim for wrongful death shall be forever barred unless a claim be filed by the personal representative of the deceased with the Industrial Commission within two years after such death. N.C. Gen. Stat § 143-299.
In North Carolina, claims against all state departments or agencies of the State must be filed with the North Carolina Industrial Commission (Commission). The Commission will act as the court to adjudicate your negligence claims and determine the amount of damages you may be awarded.
The NCTCA applies in any case where the state could be sued if it were a private entity.
The aforementioned statute of limitations and notice requirements are not inclusive, so make sure you know ALL of the requirements and filing deadlines for your potential claim.
When Settlement Is Possible
For obvious reasons, you may want to engage in settlement negotiations soon after the date of your injury. Many times people are unable to work and may need the financial security a settlement can provide. However, you should never settle too soon. The amount of any settlement or award should be proportionate to the extent and severity of your damages and injuries. Further, there is a direct corellation between your treatment and your settlement (or judgment if you try your case).
There are strengths and weaknesses in every case. When a lawyer and/or an insurance company looks at a case both sides are looking at the evidence which can be presented at trial and the issues (questions) that a jury will have to answer. In many car accidents it is clear who was at fault. Therefore if you decide to try your case in front of a jury the jury will have to answer two questions. They are: (1) was the Plaintiff (you) injured by the negligence of the defendant? and (2) what amount is the Plaintiff entitled to receive for personal injury? How both sides view the likely result of a jury’s response to the above two questions forms their individual opinions as to the value of the case. One way to think about it is you have an asset to sell, that asset being your case. The insurance company values your asset (and makes an offer to buy it) based on the above.
When answering question “2” the jury will look at your medical records as way to see how injured you were from the accident. The treatment creates a perception about the injury, i.e. no treatment creates a perception of no injury and frequent, consistent treatment creates a perception of a significant injury. In other words, the value of a case (question “2”) is directly correlated to the treatment received. Our office repeatedly stresses to every client to make their health the number one priority and get the medical care they need. When dealing with the adjuster on your case, both sides look very closely at the medical records, because the jury will as well.
Settlement discussions should only commence once you have reached your maximum medical improvement. What is maximum medical improvement (MMI)? According to the Guide to the Evaluation of Permanent Impairment, published by the American Medical Association, Maximum Medical Improvement is “a condition or state that is well stabilized and unlikely to change substantially in the next year, with or without medical treatment.” A medical doctor, or doctors, will exam you and review your medical history and records in order to determine your MMI.
Your MMI is a critical factor in determining your damages because it directly affects your future medical needs and expenses, future earning capacity, and vocational rehabilitation you may need to reestablish your working capacity. Other economic damages may be calculated in determining the value of your injuries, and in turn any settlement you may be awarded. These include past medical expenses, lost wages, property damage, out-of-pocket expenses, as well as the value of lost household services, including, but not limited to: home maintenance; housekeeping, transportation; lawn care, and companionship.
It is important to note economic damages are determinate; therefore, they must be quantified by a dollar amount. Furthermore, economic damages must be supported by evidence. In other words, you must prove your financial losses. This is typically substantiated by documentation such as medical bills, receipts, paystub stubs, and income tax returns.
In addition to the physical harm caused by another’s negligence, you may suffer from emotional trauma as well. It is not unusual to experience, among other things, fear and anxiety after sustaining such an injury. Do not let these feelings entice you to settle your claim prematurely. Take the necessary time to investigate your injuries and determine what the long-term physical, medical, and financial impact will have on you.
If you have been injured in car accident or other personal injury we invite you to contact us to discuss your case. You will speak with a lawyer who can answer all of your questions. Call our office at (704) 714-1450, to schedule a free initial consultation with one of our experienced personal injury attorneys.