Attorney R. Clayton Allen

Author: Attorney R. Clayton Allen, Esquire

In Part One, I talked about some considerations of why you might hire a personal injury attorney, and some ways insurance companies may take advantage of you if you don’t have an attorney. In Part Two, I’ll discuss some additional considerations.

1. The more money that is involved, the more you have to lose if you handle it wrong. And the more incentive the insurance company has to take advantage of you.

If your injuries and losses are small, then if you make a mistake in handling your claim then you haven’t lost much. However, if your losses are more substantial, then you have more at risk if you make a mistake. And the insurance company has more incentive to help you make that mistake.

2. Insurance companies train their adjusters to keep people from going to an attorney. The insurance companies call that “controlling the case”.

Why would they do that? Because the insurance companies know that an experienced and knowledgeable attorney will be able to ascertain the full extent of all your damages and losses that you are entitled to collect, will know what a fair value for those losses is, and will file suit if the insurance company won’t pay it. In other words, because the insurance company knows they’ll have to pay out more money if you have an attorney.

3. Most personal injury attorneys charge one-third of the recovery as a fee.

Because your attorney is charging a percentage of the recovery, even if he does a lot of work but doesn’t recover much, you won’t owe him much. The attorney’s financial incentive is to get as much money for you as possible. Suppose your tax preparer’s fee was only a percentage of the money he saved you on your taxes. How hard do you think he’d look to find you more savings?

Some people think a third (thirty-three per cent) sounds like a lot. Usually that’s because they don’t know what the markup is one most of the products they buy. Did you know that the average hot dog vendor on the corner is charging you fifty to sixty-three percent of the price you pay for what you buy? (1) Did you know that when you get a repair at the auto body shop, they are charging you 25% to over 100% “fee” added to the cost of the parts they provide (labor is extra)? (2) Even when you buy a shirt from a store, the store is charging you about a third of the cost you pay. (3) What about paper and envelopes (stationery)?  Average is 40%. (4) So with extensive education, experience and skill required to be an attorney, one-third is a bargain compared to what you pay for products you buy. And remember, too, that the attorney doesn’t get paid until you get paid, too. If the insurance company is difficult, a case may last a year or more, and the attorney doesn’t get paid anything for all the work done until the very end. In the meantime, normally not only is he paying his staff and office expenses and insurance and everything else, he’s also fronting the expenses to file suit, pay doctors for conferences and depositions, court reporter charges, medical records charges, and many other expenses. It’s not unusual for our Firm to be fronting expenses to clients that total in excess of a million dollars, for which we charge no interest. (Many of our competitors do charge interest on advanced expenses, but we do not).

4. You may never have a more educated, more skilled, more experienced advocate for you than when you have a personal injury attorney.

Almost all attorneys have successfully completed a four year college, successfully completed a three year law school, and successfully passed a rigorous licensing examination to be able to practice law. In our Firm, we have attorneys who have attended some of the top colleges in the country, we have attorneys who have attended some of the top law schools in the country, we have attorneys who are listed in the “Best Lawyers in America” books, we have attorneys who have received local, state, national and even international recognition for their accomplishments in the law. We have attorneys who have successfully tried many difficult cases in court on behalf of our clients and have obtained a number of the top verdicts in Virginia. And we enjoy helping people.

Attorney R. Clayton Allen

Author: Attorney R. Clayton Allen

As a personal injury attorney, one of the questions I am most frequently asked is why an injured person needs to hire an attorney to represent them. Here’s an outline of how I usually answer that question.

Sometimes you don’t. If your injuries are relatively minor, if your medical treatment is for only a short period of time, and if your medical expenses and other damages are small, and if you are pretty savvy about business matters and negotiating generally, then you may be able to negotiate a settlement with the insurance company that will net you about the same or maybe even a little more than if you had an attorney. But that’s a lot of ifs, and that only applies to small cases for reasons I’ll discuss below and in Part 2 of this article. Consider the following:

1. Insurance companies have professional adjusters who handle their claims for them, and that’s who you’ll be dealing with.

These are trained professionals whose job it is for your case to cost the insurance company as little as possible. And that means for you to receive as little as possible. They are trained in how to handle claims and how to do that. They know that you have not hired an attorney and that you probably don’t want to. The adjuster assumes you are a person who is willing to struggle along on your own without getting the information and help that you need. And that creates the opportunity for you to be taken advantage of.

2. When you are trying to handle something that you are not knowledgeable about or experienced in handling, it’s very stressful.

You are making decisions about your claim without knowing how to properly make the decisions. Should you give a recorded statement to the insurance company? Should you sign the authorizations the insurance company wants you to? Are you including all the items that you can claim for in your case? Are you calculating them the right way? Is the amount the insurance company offering in settlement a fair amount? Should you sign the release they want you to as part of the settlement?

Facing all these decisions without the proper knowledge and information to feel comfortable with the decisions you are making will make most people miserable. Isn’t the peace of mind of knowing it’s being properly handled to protect your legal rights worth something? And if you end up with the same amount of money as you might net with an attorney handling the case, then in essence you’ve just paid for an attorney you didn’t get. Or the peace of mind.

3. When you are trying to handle something that you are not knowledgeable about or experienced in handling, and money is involved, you are likely to be taken advantage of.

Many people do not like to buy a car. Why? Often because the salesman is very skilled at getting you to buy and you are worried about being pressured into buying, but also because you don’t really know which car is best and what is a good price. When you deal with an insurance adjuster, usually you are dealing with a very knowledgeable professional who is trained to persuade you to do what the insurance company wants and, ultimately, to accept a low offer. The adjuster knows “how the system works” and you don’t. How will an adjuster try to take advantage of you? Well, here are a couple of the most common ways.

Insurance adjusters are trained to try and settle cases shortly after an accident for a small amount of money. The goal is to tempt someone who may not yet fully recognize the extent of their injuries and losses into settling cheap. The insurance company wants a quick settlement for a low amount so it can avoid having to pay a larger amount later when the losses are fully known. In the industry, it’s called “flash money”. The idea is to “flash” the prospect of immediate money in front of the injured person in hopes they’ll take it. That’s just one of the ways that insurance companies try to take advantage of injured people.

Another way insurance adjusters take advantage of claimants is the recorded statement. The insurance adjuster knows the right words to use in asking the questions to lead you into saying things using words that have a meaning or effect that you didn’t realize. That type of interviewing is a learned skill.

Many people are shaken up after an accident, and have a fuzzy memory of the events of the accident. There’s a medical reason for this. Often in the whiplash motion that accompanies many impacts, the brain hits against the inside of the skull and affects immediate short-term memory. This is called a “contre coup” injury. (1) Insurance adjusters take advantage of this when they take recorded statements. The questioning may go something like this:

Q: I guess things seemed to happen pretty fast out there when the accident happened.

A: Yes, it’s almost like a blur.

Q: Do you remember seeing how many people were in the other car before it hit you?

A: No, I don’t recall that.

Q: Do you remember seeing the color of the other car before it hit you?

A: No, I don’t recall that.

Q: Do you remember noticing what make and model the other car was before the impact?

A: No, I don’t remember noticing that either.

Q: It sounds like you didn’t notice very much. I guess it happened so fast you didn’t really see the other car before the impact.

A: No, I guess I really didn’t.

What the adjuster knows and you don’t is that Virginia has a rule of law called contributory negligence. Under that rule, even if the other driver is 99% at fault in causing your accident, if you as the injured person are even 1% at fault in a way that significantly contributes to cause the accident, then you lose. You don’t get a dime. And based on your statement, the insurance company will argue that you are partly at fault too, because you weren’t paying attention since the car was in plain view approaching before it hit you in the side. But the truth is you probably did see it, you just don’t remember because of the type of injury you sustained. But the adjuster knows you don’t know that.

About the Author: Clayton Allen is a Richmond car accident attorney with over 20 years of experience with the Allen Law Firm.

Bill Bootwright, Claims Consultant

Author: William P. “Bill” Bootwright, Claims Consultant

You have often heard the expression “you can’t have your cake and eat it, too.” (1) But that’s exactly what the insurance companies try to do in handling claims. Whatever the situation, they try to argue that means the injured person wasn’t hurt very much. Sometimes they create a problem, and then try to benefit from it. Just the other day I had a case with a claims adjuster where this expression applies.

To give you a little history, the claim involved a motor vehicle intersection accident where our client sustained soft tissue injuries. The collision was so hard his car was totaled. Even though there was an independent non-biased eyewitness who told the police officer at the scene that the defendant (the other driver) had indeed run the red light, and the police officer charged him, the defendant claimed to his insurance company that he had a green light. The defendant’s insurance company did not initially accept that the defendant was responsible for causing the accident, and in fact dragged their feet in conducting their investigation. Finally, they accepted liability in the accident about two months later.

Our client was taken by rescue squad directly from the scene to the emergency room where he was examined, and x-rays showed there were no fractures. Our client was treated and given instructions to stay out of work and take some medications he was prescribed. He was also told to follow up with his primary care physician if needed. Like a lot of people, our client didn’t like going to doctors and thought if he just gave it time, he would get well. Also, he didn’t have any transportation because his car was a total loss, he was in a financial bind because he was unable to work due to his injuries, and he also didn’t have any health insurance.

Because of the delay in the insurance company accepting liability for the accident, our client was unable to seek any further medical care. When the insurance company finally accepted liability and settled his claim for the damage to (loss of) his car, our client was able to purchase a replacement vehicle which enabled him to get to his doctor. When he saw his family doctor about 60 days after the accident, the doctor sent him for physical therapy for eight weeks. With that treatment and the medications, our client made a good recovery, and when he returned to his doctor, the doctor released him from further care for his injuries. (Our client wasn’t completely well, but had recovered to the point the doctor felt he would go on to a complete recovery in the next few weeks without any further treatment).

After we obtained all the medical records and bills and a verification of his time missed from work, we submitted our client’s case to the insurance carrier for settlement discussions. The adjuster’s first offer was only $700.00 over the hospital emergency room bill, and her justification was that because of the delay in treatment from the initial emergency room visit until 60 days later, she couldn’t consider any treatment except the emergency room visit. The adjuster then argued that our client had failed to “mitigate his damages” (2) by following up with his doctor sooner, and that because of the gap, our client’s treatment was prolonged. Therefore, the insurance company would not be responsible for the later treatment. I explained to the adjuster that the reason why the client had not sought further care was because of transportation and financial issues which were caused by the negligence of their insured and the insurance company’s own delay. I further pointed out that our client had indeed practiced “mitigation” of his damages by not going to his family doctor until it was clear that the medications, rest, and staying out of work were not going to allow him to recover.

After several months of negotiations, the claims adjuster finally agreed with my explanation, but only accepted the medical bills for only the first 4 weeks of physical therapy. When I asked why, the adjuster stated that for soft tissue injuries the standard time period for recovery was three months, and that was in the middle of the physical therapy. I pointed out to the adjuster that this “standard” (3) was at best an average, which meant that half the people with these injuries took longer. Furthermore, everybody wouldn’t be at the average unless we were all “cloned”, which is certainly not the case, and that every accident is different with varying forces of impact, different body positions, and many other variables that make recovery time highly variable and unpredictable. Negotiations are continuing, and we will probably have to file a lawsuit.

So the insurance company wants to unreasonably delay accepting responsibility in a case, and then wants to complain the effects of their delay mean they should pay less to the injured person in settlement. (4) Now if that doesn’t fit the expression of “wanting to have their cake and eat it too”, then “I’ll eat my hat.” Oops, oops.

About the Author: Bill Bootwright is a claims consultant in the Mechanicsville branch of the personal injury law firm of Allen and Allen. A former insurance adjuster, Bill works under the supervision of attorney Christopher A. Meyers to assist clients with their personal injury claims.

(2) The “duty to mitigate damages” means that a person must take reasonable steps to reduce their losses, which usually means for injuries to seek medical attention and then follow the doctor’s advice. However, a duty to mitigate damages is violated only to the extent that the failure causes the losses to be greater. See Lawrence v. Wirth, 226 Va. 408, 309 S.E.2d 315 (1983). In this case, there was no indication that our client’s injuries lasted longer or were more expensive to treat due to the delay in treatment. Many doctors do not believe that physical therapy should be prescribed immediately after an injury, but instead there should be some healing of the acute injury before starting physical therapy.

(3) Even the most conservative doctors usually agree that these injuries may take up to a year to recover. Depending on age and pre-existing structural conditions, many people may take longer than that or even have permanent injuries.

(4) Fortunately, juries rarely accept these ridiculous arguments, and usually understand the “reasonable efforts” required to mitigate damages include waiting to see if soft tissue injuries are going to heal with time, rest and medications, before seeking additional treatment. But it’s unfortunate that a lawsuit and maybe trial is necessary to get a fair recovery for somebody who has been injured by someone else’s carelessness. And then the insurance companies complain the system doesn’t work because there are so many lawsuits!