One of the most frequently asked questions I get from our personal injury clients is this: “how long do personal injury claims take?”
Well, that depends. I know that sounds like a “lawyer-type” answer, but the time frame often fluctuates based on a number of factors. The best way to answer the question is probably to explain what has to happen before a claim can be resolved. I describe these as “stages” in the progress of a claim.
What are the “stages” of a claim?
There are several parts or stages of a personal injury claim leading to its conclusion. The first stage depends on the length of our client’s recovery from their injuries. The end of this stage is reached either when the client has recovered and is discharged from medical treatment, or when the client has reached the point where – in the opinion of their treating doctor – the client has reached their maximum recovery and whatever residual problems the client still has are essentially permanent. Doctors call this the point of “maximum medical improvement” or MMI. When a client is expected to make a complete recovery, we prefer to start negotiations after our client has been discharged from medical care and the client is satisfied they have recovered from their injuries.
We do this for the protection of the client, because once there has been a settlement agreement, the case is considered concluded. As part of a settlement, you must sign a “release” which is the written document stating that you are giving up all your legal rights against the person who caused your injuries or their insurance company. The release is what you give the insurance company in exchange for the money they are offering in settlement. The release normally states that you understand this is the end of your claim forever if you accept the settlement money and sign the release. If we and our client agree on a settlement with the insurance carrier and then later our client’s injuries cause further problems, it is too late to make a further recovery for those additional problems.
- Preparing a Submittal Package
- In a typical personal injury case, after our client has been discharged from medical care, the next stage is preparing the case for submission to the insurance company. Sometimes a client is discharged from medical care when they still have some minor symptoms and their recovery is not complete, but the doctor thinks the client will go on to make a full recovery without any further medical treatment. While we are obtaining the documents to make the submittal, and while we are negotiating, hopefully the client will go on to complete their recovery. If they don’t, or if they have a relapse, then we can suspend negotiations until any additional treatment is concluded.
- Once the client notifies us they have been discharged, often it takes about 30 to 60 days for us to secure the final bills and records from the medical providers, and confirm in writing from the client’s employer any missed time from work. The legal assistant working on the case will then prepare a package that consists of a lot of documents supporting and explaining the client’s financial damages and other losses. (This is often called the “submittal package”). At this time our attorneys usually review the case and the submittal package, and determine a “value” of the claim within a range.
- Determining the correct value or value range for a particular case is perhaps one of the most difficult activities an attorney performs on your case. Although only a small percentage of cases actually go to trial, the results in those cases determine the “value” of similar cases. From a careful analysis of the important factors in your case that would affect a jury, our skilled and experienced trial attorneys can determine what an appropriate settlement in your case would be. Then we attempt to obtain that amount or more in artful negotiations.
- After submittal, the next stage is negotiations. Frequently it takes 4 to 8 weeks for the insurance adjuster to review the submittal package, complete any investigation or medical review, and obtain authority to negotiate from their supervisor or claims manager. Normally we follow up with the insurance carrier about 30 days after the package has been sent, to find out how the review is progressing or if it had been completed. Once the insurance company makes their initial offer, then we make a counter offer and the process goes from there. The negotiation process can take one week or several months depending on the complexity of the case. Each offer is discussed with the client and their permission to reject any offer is communicated to the insurance company. Most of the time, an acceptable offer can be obtained from the insurance company.
- However, many times an acceptable offer cannot be obtained by negotiations alone. Sometimes the insurance adjuster just does not see the value of the claim as we do, or sometimes the adjuster’s supervisor thinks we will settle for less than the value. For whatever reason, sometimes the insurance company will not make an acceptable offer by negotiations alone. When that happens, we may have to go to the next stage, which is litigation. Sometimes we have to begin litigation because the recovery takes a long time.
- If a claim can be resolved without litigation, then the maximum period is usually two years. That’s because in Virginia there is a two year statute of limitations which applies to most personal injury cases. What this means is that most of the time a personal injury case has to either be settled or a Complaint has to be filed (which is the way litigation is initiated) within two years of the date of the incident. However, most claims are settled long before that time.
- Just because litigation is started and a lawsuit is filed does not mean the case will definitely go to trial. Of the cases that our attorneys file, probably 90% are still settled before trial. So litigation is usually just a step in negotiations. We don’t want to file suit if we can settle the claim without litigation, but if the insurance company won’t offer enough then that is our only option.
So, the answer is…inconclusive
As one can see there is no fixed answer as to how long a case can take to conclude. There are many variables but the most influential variables are the time it takes our client to complete their recovery from the injuries, and how long it takes the insurance company to make an acceptable settlement offer. Since any settlement is final, and you want to be sure you know the full health effects of your injuries, you don’t want to rush a settlement before the case is ready to be properly submitted. At Allen and Allen, we will move your case along as fast as we can consistent with getting the best result we can for you.