Baxley Maniscalco Attorneys At Law
We believe that it is wrong to sign up a case and take a contingency fee from a client where the amount that can be recovered from insurance is limited and liability is clear.
In these cases, we want to help you prepare your own demand so that you can keep 100% of the funds recovered in your pocket or pay your medical bills. We simply don't believe in taking a fee where the injuries are substantial, your case requires little work, and the policy limits are small and can be quickly tendered.
There is plenty of work for us to do after insurance companies refuse to pay a fair demand for settlement.
Don’t Believe Everything You Hear
With that being said, it is important not to be too quick to believe the insurance companies when they claim there is no more coverage. Unfortunately, we have found that insurance companies often mislead us about the total amount of coverage available to help pay for an individual's injuries.
Before you accept any offer of settlement that the insurance company claims is the policy limits, require them to provide you with a copy of the policy.
Be Very Sure the Driver Wasn’t Driving for Work or Running Errands for Someone
You also want to be very certain that the driver was not acting within the course and scope of agency or employment or running an errand for a third party when they hit you. These third parties may have insurance that would cover this claim.
Accept Nothing Less Than Policy Limits
When your injuries are significant and life-altering and your medical bills aren't even covered by the insurance funds available, settle FOR POLICY LIMITS ONLY with the insurance carriers you are aware of. So, if the driver disclosed a policy of insurance on the accident report, make a demand for the policy limits of that coverage.
Don't Forget to Check Your Own Policy for UIM Coverage
If you have UM/UIM coverage on your automobile insurance policy, get consent from your carrier BEFORE settling with the liability carrier, and then make a separate demand for the policy limits of your UM/UIM insurance. (We really don't recommend that you try to settle your own claim if you know you have UIM coverage . . . there are just too many traps to fall into that can cause your carrier to refuse to pay.
Don’t Leave Money on the Table
Sadly, we believe that hundreds of millions of dollars of insurance money are being left on the table each year because individuals are accepting low settlement offers and not demanding full justice for the injuries they suffered.
How the Process Works
When you begin the claims process for a personal injury, the decision of whether or not to pay the policy limits (all of the coverage available) is made by the insurance companies. A lot of people feel bad for "going after" the driver who hit them, mistakenly believing that that person will be "on the hook" for any money that gets paid. Injury victims also tend to believe that the driver has more control over the process than they actually do. In reality, insurance companies exercise nearly full control over whether the claim settles and for how much. They rarely even seek the at-fault driver's input.
Big Shocker: Insurance Companies Often Don’t Act Reasonably
Insurance companies and their trained employees frequently fail to act reasonably to look out for the interests of their insured policyholders, and negligently fail to settle for policy limits. When an insurance company acts greedily like this and fails to take a reasonable opportunity to settle, this is called 'bad faith'.
When an insurance company acts in bad faith and the proper letters have been sent by the injured person or their attorney, this creates an opportunity for the injury victim and the at-fault insured driver to work together to hold the insurance company responsible. When this happens, the insurance company can be made to pay the FULL AMOUNT of compensation due to the injured party, no matter how high the damages are.
How Can You Make the Insurance Company Pay More Than the Policy Limits of the Insurance Coverage?
The insurance company has a contractual and fiduciary duty to look out for the best interest of their policyholders and to accept reasonable offers of settlement by injury victims to protect their policyholders.
This is because the policyholder paid for insurance coverage to protect them in just such a case as this: when they mistakenly hurt someone through their negligent conduct. This is why each of us purchases insurance: to protect our assets and to compensate anyone we may negligently cause harm to.
When an insurance company fails to settle a case within the policy limits of the coverage paid for by the policyholder, it exposes the policyholder to a verdict or judgment with no limits on how much it may be. This can be financially devastating to the policyholder.
How Does the Duty to the Policyholder Help You?
Why are we talking about the at-fault policyholder so much and not the injured victim? Because the duty the insurance company has to their policyholder also helps you, the injured party.
When cases go to trial, jurors are able to award any amount of money they believe to be fair based on the evidence presented to them. Juries are not allowed to consider the amount of insurance coverage at all in their deliberations. So, if you take your case to trial and win, the at-fault driver (who is now “the defendant”) is facing a judgment for the amount of the verdict, the costs of the litigation, and in many instances, pre and post-judgment interest. Insurance companies are well aware of this.
It is important to remind the insurance company of their obligations while at the same time warning the at-fault driver of the risks they are facing if the case does not settle.
Average Personal Injury Settlement
The average personal injury settlement typically ranges from $3,000 to $75,000. The likelihood of a payout of some amount is 70%. About 4% of cases go to trial. Settlements include money for medical bills, lost wages for time off work, mileage to and from medical appointments, pain and suffering and loss of the ability to enjoy life.
‘Opening the Policy'
When you make a demand for policy limits that contains the key phrases needed, you have a very good chance of ‘opening the policy’.
Opening the policy is the lingo lawyers use when you are able to document that the insurance company had a chance to settle within the policy limits and failed to do so, instead acting in ‘bad faith.’
Setting Up a Claim for Bad Faith
A very effective way to make a claim that sets the insurance company up for bad faith if they do not pay is to send a handwritten letter or personally typed email that demands disclosure of and settlement for the policy limits.
Frequently after a clear settlement demand for policy limits is received by the insurance company, the injured claimant will receive a letter back saying that the insurance company lacks some information needed to properly evaluate the claim.
You’ll see one or more of these common excuses:
- The investigation is not complete;
- Denial of liability or liability "not clear;"
- Request for "more information."
Don’t be surprised or discouraged when this happens. It is frivolous and is usually based on a form letter from their system. These sorts of tactics by the insurance company can actually help you out later in the process.
Don’t respond to these frivolous letters. Go radio silent after sending your demand. If you were clear and provided all the documentation needed in your demand packet, there is no need for further discussion with the insurance company.
Don’t wait to make a settlement demand. Do it quickly! Give the insurance company enough information that it is clear that your medical bills, out-of-pocket expenses, lost wages, and pain and suffering are worth well over the policy limits.
Give the Insurance Company a Deadline
When you make your demand to the insurance company for benefits, make sure that you include a timed demand in your letter. We recommend giving the insurance company thirty days to evaluate your demand. Your letter should include a phrase like “Please let me know by November 14, 20XX whether you will pay the policy limits.”
Under the principles of contract law, when you make a clear and unambiguous offer of settlement, it must be either accepted or rejected. If the insurance company fails to respond within thirty days or makes one of the excuses listed above, they have rejected your offer.