California Auto Accident PI Claim

Hello.  My 20 year old son was a passenger in a car accident 3 months ago and sustained significant internal bleeding/injuries.  The driver was 100% at fault, having hit a parked highway maintenance truck.  He was taken by ambulance to a small nearby hospital that couldn't manage his condition.  He was then evacuated by ambulance 100 miles to a trauma center where he spend 4 days in ICU and one day in a general med/surg unit.  His couldn't eat for 5 days due to the digestive system trauma and pancreatic bleeding.  They had him on an IV drip for hydration and morphine for pain.  The experience was very traumatic for my wife and I - not knowing whether he would be okay.  The total billed charges are over $100,000 so far and he needs continued physical therapy.  Thankfully he alive and almost back to normal, albeit with back and neck pain.

I haven't filed a claim against the drivers insurance company yet and am contemplating whether I should do so myself or hire an attorney.  They have twice asked for him to authorize release of medical records which we have refused to date.  I have a few questions:

(1) If I choose to file a claim on his behalf to I need a special power of attorney, since he is over 18?

(2) Other posts and sites refer to a BASE calculation for compensatory (pain, suffering) that suggest 2X to 3X medical bills.  Is this reasonable?  While he may have some ongoing medical needs asking for $200k - $300k seems a bit high.

(3) If there are compensatory damages do those go do my son or can they be held in trust?  Wouldn't want him to buy a brand new red convertible with it!

(4) Does the size of a claim impact whether I should hire an attorney or is determined by other factors?

Thank you.

PeeBee:

I haven't filed a claim against the drivers insurance company yet and am contemplating whether I should do so myself or hire an attorney.  

Neither.

Your son is an adult. It's his injury and his claim. You can certainly guide him and make recommendations but if a lawyer is needed, he's the one that has to hire him, not you. There is nothing in this claim for you. Your emotional difficulties as a result of your son's injuries are understandable but they are not compensable.

PeeBee:

They have twice asked for him to authorize release of medical records which we have refused to date.

The other driver's insurance company has a right to the records if your son ever expects to have his claim processed as opposed to ignored. He'll have to sign the authorization sooner or later. Again, it's not up to you to refuse or agree. He's an adult. It's up to him.

PeeBee:

(1) If I choose to file a claim on his behalf to I need a special power of attorney, since he is over 18?

Even if you had power of attorney you could not act for him in this claim. For one thing, the insurance company would not talk to you. Your son's an adult. For another, you'd be engaging in the unauthorized practice of law which could subject you to criminal prosecution.

PeeBee:

(2) Other posts and sites refer to a BASE calculation for compensatory (pain, suffering) that suggest 2X to 3X medical bills.  Is this reasonable?  While he may have some ongoing medical needs asking for $200k - $300k seems a bit high.

I don't know why that myth is still around but it's not true. Each claim is based on its own merits. For example, if your son's medical costs were over 100,000 and he was permanently disabled where he could never work again, it could run into millions. If he fully recovered after a few months, the pain and suffering portion could be only a few thousand.

There is no way to even begin to figure the pain and suffering portion of the claim until your son is completed recovered with no residual issues or has reached maximum medical improvement and a percentage disability can be computed.

PeeBee:

(3) If there are compensatory damages do those go do my son or can they be held in trust?

To your son. He's an adult. Unless you intend to have a court declare him incompentent and appoint you conservator, then it's his money, to do with as he pleases.

PeeBee:

Wouldn't want him to buy a brand new red convertible with it!

Why not?

After all those months of suffering, he's entitled to a red convertible if that's what he wants. Hopefully you've raised him with enough common sense to use just part of the money for an inexpensive older red convertible instead of a 2010 Shelby GT500 Mustang Cobra red convertible (with white racing stripes).

PeeBee:

(4) Does the size of a claim impact whether I should hire an attorney or is determined by other factors?

Well, yes and yes.

While it never hurts to consult an attorney and review your options, it isn't all that critical to run out and hire one until you see which way the insurance company's wind is blowing.

I'd be happy to provide you with some suggestions based on my professional experience as a claim rep as the claim progresses.

For the moment, here are a few.

1 - Have him go ahead and sign the authorization for the medical records. It's probably going to take a month or more for the insurance company to round them all up and then all they will do is sit on them until it's time to settle.

By then you might have an update regarding his medical progress.

2 - Since he was a passenger in the car I'm guessing that he was fairly well acquanted with the driver. See if he can find out what the driver's Bodily Injury Liability limits are (per person and per accident). A copy of the cover page of the policy would be nice.

Come back and report those limits.

Then let's continue this discussion. Please keep the discussion to this thread and don't open new ones. Adding to this one brings it to the top of the active list and I'm here every day to see it.

Thanks Adjuster Jack!

It's been about four months since my son's accident and he continues to experience back and neck pain and is getting PT three times per week.  No end in sight since there has been little improvement.  Couldn't work this Summer in the same job he had last year.

Finally got through to the medical claim examiner (submitted claim 6 weeks ago).  She doesn't want to close the claim yet since he still needs care.  That made sense to me.  Also learned that the driver's father had limited medical liability on the car policy but was covered by the mother's policy which they can tap into as well.  Adjuster suggested there is "plenty of coverage available."  I also learned that there are three medical claims and one workers' compensation claim from one of the construction workers who was injured.  Wondering if there really is enough coverage since she didn't share the total liability limit.

Man, this takes a long time!

You can help him with the paperwork but you really need to have him consult an attorney. You cannot represent him if this ends up in court. And given the amount of money involved so far, I would not suggest handling this without help.

Since he is 20, I'll be holding his hand through this process.  Just curious though: If the medical bills were significant at the beginning and have since dropped off to a few hundred a week (only PT at this point) what would I get with counsel versus going it alone (at least initially)?  In this instance is the claim worth less if he has only soft tissue issues that hopefully will improve over time?  I've heard that big medical claims don't necessarily translate into big settlements if there is no permanent damage and the prognosis is reasonably good.  

I offered to settle but they are recommending I hold off until his prognosis begins to improve.  Would the insurance company act differently if he has representation?

You have no standing to 'offer to settle' unless your son is a minor.

I certainly agree with Lynn, considering the amount of $$ spent on medical who  is also an attorney.  He is very foolish to try and settle with the insurance company without an attorney, particularly since his medical bills are significant, prognosis not yet determined and possibly his injuries may be lasting since you state he still has back and neck pain.

If your son needs assistance locating a PI attorney in your state, the Find A Lawyer feature to the right of this page is an excellent resource.   Initial consultation is usually without charge. 

You should encourage your son to seek a lawyer to handle this case. It's admirable that you want to help him, but he is not a minor. As for any award to him, it goes to him. It cannot be held in a trust. You can encourage him to be wise with financial matters, but you have no control over it.

Okay.  Almost 8 months have gone by and my son is back to good health - thank goodness! After the initial accident and 5 days in the hospital he endured months of physical therapy.  His last visit was last week.

He incurred over $110,000 in billed medical expenses, most of which was paid by my health insurance plan (they have put a lean on the claim for the $55,000 they paid after provider discounts).  The car insurance paid me $5,000 in medpay.

The auto insurance company now want him to sign a document that will allow them to seek all medical records from all providers.  Should he sign?  The adjustor makes it sound like we can't settle the claim without a signed release.

They also stated in writing that all four claimants (several passengers were hurt) must agree to the settlement or none of the claims get settled.  Is that allowed?  It seems like my sons claim could be held hostage to someone holding out for more money.

Lastly, I read a case summary that states that the auto insurance company is responsible for paying the full billed charges - not just what the health insurance company paid to providers.  Is that accurate?  I'm starting to feel like they will low ball us on compensatory damages and therefore want to know what my sons rights are.  I think I need a lawyer!

PeeBee:

The auto insurance company now want him to sign a document that will allow them to seek all medical records from all providers.  Should he sign?  The adjustor makes it sound like we can't settle the claim without a signed release.

Be careful. There are two different concepts there.

One is the release to get medical records. The insurance company is correct. He needs to sign that so they can get all the records and complete their investigation into his injury. No sign, no money.

The other is a release to get the settlement money. That one will say something like "in exchange for the money he won't make any further claims."

Make sure he/you reads the document VERY CAREFULLY and fully understand what's being signed and keep a copy.

But, yeah, have him go ahead and sign the medical release form. I told you to do that months ago. They could have had all the records by now. Now, they'll have to start from scratch and it could take a couple of months to round them all up. And, no, you/he doesn't get to pick them up and provide them to the insurance company.

PeeBee:

They also stated in writing that all four claimants (several passengers were hurt) must agree to the settlement or none of the claims get settled.  Is that allowed?

Yes.

PeeBee:

 It seems like my sons claim could be held hostage to someone holding out for more money.

That's true. It's because the "per clam" liability limit might not be sufficient to pay everybody's claims in full and the insurance company has to allocate the limits to each claimant on a prorated basis and requires a settlement agreement for each of the claimants before settling for all.

Remember that the other driver's insurance company is not your insurance company and owes you nothing unless and until a court of law finds the other driver responsible and says how much. Till then that insurance company pretty much calls the shots.

PeeBee:

Lastly, I read a case summary that states that the auto insurance company is responsible for paying the full billed charges - not just what the health insurance company paid to providers.  Is that accurate?  I'm starting to feel like they will low ball us on compensatory damages and therefore want to know what my sons rights are.  

That has to do with the "collateral source rule." I won't go into a discussion here because there are plenty of resources in the following search result that will explain it to you:

http://www.google.com/search?hl=en&source=hp&q=california+collateral+source+rule&aq=0&aqi=g4&aql=&oq=california+collateral+&gs_rfai=C3E9L2O7eTMyVBaW4iwPHq8jrAQAAAKoEBU_QlkkW

If the other driver's insurance company's limits are not sufficient to pay for your son's claim, you will need to open an Underinsured Motorists claim with your own insurance company.

Keep in mind that if your son enjoyed full recovery after 8 months with no permanent disability, then the claims not worth much beyond the cost of the medical treatment.

Any idea yet what kind of dollars the insurance company is contemplating or what the other driver's policy limits are?

Thanks Jack.  Your posts are extremely helpful!

The driver's insurance adjuster won't disclose the amount of medical coverage to me but suggested that there is "plenty" for all claimants.  I'm skeptical but he sounded fairly confident.  I'm assuming, therefore, that they have 250k/$500k, but that's just a guess.

You noted that since be is back to health after 8 months that the claim isn't worth much more than the medical bills.  Really?  What about compensatory damages? The 5 days in the hospital were agonizing for us.  If it's not worth more than the medical claims then why hire a lawyer?  Everything is going to go back to the health insurance company for the subrogation.

And thanks for the Collateral Source Rule link.  Very helpful.

PeeBee:

The driver's insurance adjuster won't disclose the amount of medical coverage to me but suggested that there is "plenty" for all claimants.  I'm skeptical but he sounded fairly confident.  I'm assuming, therefore, that they have 250k/$500k, but that's just a guess.

If you want to make that guess a little more positive, go over to the other driver's house and see where he lives and what kind of cars are in his family. A nice house and nice cars often translate into higher limits.

Then get on the county assessor's website and get the assessment information. Should also give you lots of other stuff about the property. Then look up the propery on the county recorder's website. You should be able to find the mortgages or deeds of trust showing how much he's borrowed on the house.

But if there are sufficient limits then the business about needing everybody to settle for anybody to get paid is just just a negotiating ploy. Trouble is, that doesn't matter. The claim rep can and will use any kind of negotiating ploy to settle for the lowest amount possible.

It's up to your son to decide at what point he says "stick it" and files a lawsuit.

PeeBee:

You noted that since be is back to health after 8 months that the claim isn't worth much more than the medical bills.  Really?  What about compensatory damages? The 5 days in the hospital were agonizing for us.

It's been mentioned before that there is no "us." This is your son's claim. There is no money in it for you or your wife.

PeeBee:

If it's not worth more than the medical claims then why hire a lawyer?  Everything is going to go back to the health insurance company for the subrogation.

Your son is certainly entitled to something for pain and suffering in addition to his medical costs. Maybe a few thousand per month for the 8 months that it took to recover, even in spite of the large amount of medical bills.

Did he lose any earnings? Did he lose any time from school? Is there any residual partial disability? Answers to those questions could have an effect on the amount of the claim.

Wow.  A few thousand a month x 8 months for pain and suffering in ICU for 4 - 5 days with internal bleeding/organ injuries?  Hardly worth it to him (I know there is no "us" in this situation) considering what he went through.

He is a college student and missed a few weeks of school.  In addition, he couldn't work this summer has he had in the past, due to the neck and back pain.  Perhaps a prior year W-2 is enough to prove an additional few thousand from lost work.

Unless the collateral source rule works to his advantage it's hardly worth a lawyer's time or contingency fee.  Yawn.

PeeBee:

Wow.  A few thousand a month x 8 months for pain and suffering in ICU for 4 - 5 days with internal bleeding/organ injuries?  Hardly worth it to him (I know there is no "us" in this situation) considering what he went through.

What I'm trying to point out is that his settlement is likely to be measured in thousands and not hundreds of thousands.

People with gunshot wounds or heart transplants can be in ICU for 5 days and back on their feet in a couple of months.

PeeBee:

He is a college student and missed a few weeks of school.

But managed to complete the semester.

PeeBee:

In addition, he couldn't work this summer has he had in the past, due to the neck and back pain.  Perhaps a prior year W-2 is enough to prove an additional few thousand from lost work.

Yes, the loss of earnings should be part of this claim. The W-2 would be helpful but it's better to have a written statement from his employer that he would have had a job that summer and how much he lost in wages for not being able to work.

PeeBee:

Unless the collateral source rule works to his advantage it's hardly worth a lawyer's time or contingency fee.

That might well be true.

Has he and the clam rep talked money yet?

Or is he just waiting till the insurance company makes an offer?