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Why Is It Difficult to Get Damages in a Personal Injury Case?

Rosensteel Fleishman Conference Room Table

Insurance companies are in the business of making money, not spending it. The insurance industry, like many industries, is gambling, gambling that it will have to pay out less money than it takes in. 

In a personal injury case, the goal of the injured person (the plaintiff) is to be made financially whole. Depending on the severity of the plaintiff’s injuries, either a small sum or large sum will be necessary to make the plaintiff whole. In many personal injury cases, the party (defendant) who caused the injury will have insurance. Therefore the first step in seeking recovery of damages is to contact the insurance company. 

Unfortunately for plaintiffs, the goal of the insurance company is to pay them as little money as is necessary. This often leads to insurance companies either making a low offer to resolve a case or refusing to admit liability on behalf of the insured and therefore refusing to settle.  

Factors Taken into Consideration

Personal injury cases are fact intensive. No two personal injury cases are the same. Personal injury settlements take a number of factors into consideration. These include:

  • how severe the injuries are
  • the medical costs - doctors visits, prescriptions, rehabilitation, assistive devices, changes to a home
  • the  nature or severity of the injury - how long the injury will last - is it temporary or permanent?
  • lost wages - current and future. Once again, the severity of the injury comes into play here. A truck driver who is paralyzed as a result of a car accident and never able to work again will have significantly greater wage loss than a plaintiff who suffers a broken arm and can’t work for 6 weeks.
  • emotional distress - a plaintiff involved in a minor fender bender will likely suffer no emotional distress. A plaintiff like the truck driver in the above example, or whose passenger is killed in a car accident could suffer from PTSD, anxiety or a variety of other psychological conditions.
  • the evidence available to show what actually happened 
  • any limits that might exist on the insured’s policy
  • in any state, but especially in North Carolina which follows the contributory negligence doctrine, whether the plaintiff’s actions contributed to the injuries. If a North Carolina plaintiff is found to be even partially at fault for the accident that caused his/her injuries, he/she could be precluded from recovering any damages. One defense to the contributory negligence theory is the Last Clear Chance Doctrine.

Settlement v. Trial 

The majority of personal injury cases are resolved through settlement, though some do go to trial. Settling a claim involves negotiating with either the insurance company or the defendant or both. Settlement involves a compromise between the parties, meaning that neither party will get what they want but hopefully then can agree to a number that is acceptable to both of them and avoids the time and expense of litigation. In the majority of cases the process begins with the insurer making an offer to settle the case. Typically this offer is on the low side which allows parties room to negotiate. The negotiation process can be a particularly emotional experience for the plaintiff. Having an attorney who can advocate on the plaintiff’s behalf can make it easier on the plaintiff and make it clear to the insurance company that they are in it for the long haul - settlement or trial. 

If a case cannot be settled then it will need to be litigated. Litigation is expensive and time consuming for both parties. Factors that need to be considered are: 

  • the severity of the injuries. In an accident where a plaintiff suffered severe damages under very specific circumstances, punitive damages might be available. Punitive damages, unlike compensatory damages which are intended to make the plaintiff whole, are intended to punish the defendant. In the case of severe or horrific negligence, a plaintiff could receive a punitive damages award in addition to, and in excess of, a contributory damages award. 
  • liability. If a plaintiff is partially at fault, and the Last Clear Chance Doctrine does not apply, then the plaintiff could sue and wind up recovering nothing while paying at least some of the costs associated with trial.
  • the defendant. Is the defendant solvent? If not, and if the amount requested exceeds the amount of any insurance policy limits, a plaintiff could end up recovering nothing. 

Why Hiring an Attorney Could be Crucial in a Personal Injury Case

The unique nature of personal injury cases makes valuing them particularly hard. That is why hiring a Charlotte attorney to advocate on the victim’s behalf, particularly in the case of serious injury, is important. Many personal injury attorneys have seen hundreds, if not thousands of injuries over the course of their careers. They have experience with a wide array of facts and which fact scenario is more likely to lead to a settlement and which is more likely to lead to trial. In addition, an experienced personal injury attorney can help with nuances in the law like the Last Clear Chance Doctrine referred to above, which allows a plaintiff to recover if he/she was partially at fault and IF he/she can prove that the defendant had one last clear chance to avoid the injury and failed to do so. So for example, in a car accident case, if a plaintiff turned right on red when he/she should not have, but the defendant had enough time to see the plaintiff and stop but didn’t, then the Last Clear Chance Doctrine could apply and allow the plaintiff to recover even though he/she was partially at fault.

Why Do I Need a Charlotte Law Firm?

Incidents leading to personal injury claims happen daily. Personal injury cases are fact specific and the law in North Carolina can be challenging for plaintiffs.  The Charlotte, NC based lawyers at Rosensteel Fleishman, PLLC are experienced personal injury attorneys who can help you understand your rights and whether or not you have damages and should proceed with a claim. Please contact our office at 704-714-1450. There is no fee for an initial consultation. 

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