How Do I Get Started with my Claim?
Will an Insurance Company Settle if I was at Fault?
How Does my Lawyer Start Settlement Discussions?
How Long Does It Take to Settle a Claim?
What Makes Property Damage Claims Different?
What Factors Help You Decide Whether or Not to Settle a Claim?
Talk to an Attorney About Your Settlement Options
Whether you suffered personal injuries in an accident while riding your motorcycle or were one of the lucky few who walk away with only damages to your bike, there comes a point when either you or the motorcycle accident attorney representing you discuss settlement of the claim with the liability insurance company. There are many factors contributing to when and if a claim for damages is settled, but almost 97 percent of them end with a negotiated settlement. Bearing in mind that insurance companies do not stay in business by giving away their money, being in the most advantageous position to settle your claim begins by learning as much as possible about the process a claim goes through and what you can do to improve the settlement you get.
It is rare for someone suffering physical injuries or property damage in a motorcycle accident to file a claim for compensation and have the insurance company in total agreement with how the accident occurred and the extent of the damages suffered. This is the reason many claims result in lawsuits where the parties ask a judge or a panel of jurors to resolve the dispute.
Lawsuits take time to process. Once you and your attorney make the decision to file a lawsuit, it progresses through the following stages:
- Service of the answer: This is the written response from the party being sued, the defendant, to the allegations raised in your lawsuit. Laws vary from state to state, but the defendant could have up to 30 days from when the lawsuit was served in order to file an answer to it.
- Discovery: This phase of the process is when each side in the lawsuit tries to gather information about the various issues. Depositions, bills of particulars, interrogatories, demands for release of medical records and physical examinations are only a few of the methods the parties may use to gather information about fault and damages.
- Motions: Motions are written requests asking the court to resolve a legal issue or other matter prior to the case actually going to trial. Motions could be based upon a party’s failure to comply with discovery requests.
- Conferences: Depending upon state laws and local court rules, conferences could be scheduled requiring the attorneys for the parties to meet with a judge to discuss the status of the case. These conferences are usually to ensure the case continues moving along toward trial or other resolution.
- Trial: Once all of the preliminary steps in the process are completed, the case is scheduled for a trial. It is at a trial when the plaintiff has the burden of producing evidence to prove fault on the part of the defendant in causing the accident and the extent of the injuries and other damages suffered by the plaintiff. A judge or a panel of jurors will determine if the plaintiff has met this burden of proof through a verdict in favor of either the plaintiff or the defendant.
A settlement may occur at any stage during this process if the parties agree to resolve the dispute on terms that are acceptable to each of them. Settlements take time to negotiate, but when a settlement is reached, it represents an end to the dispute.
Motorcycle accidents can result in a claim for personal injuries to the rider and passenger. If the bike is damaged, there is also a claim for property damage. A property damage claim is relatively simple as compared to a personal injury claim. Both types of claims begin by contacting the company insuring the party whose vehicle collided with your motorcycle or, if you carry collision coverage on your motorcycle and there was only property damage, the claim is made to your insurer. Check out our article on how to
Claims adjusters try to limit the amount they pay claimants. Going up against an experienced insurance adjuster places you at a disadvantage, so it is usually better to speak to a knowledgeable motorcycle accident lawyer as soon after the accident as possible. In addition to obtaining valuable advice, a consultation could help you decide if the amount of damages, particularly in cases involving only property damage, makes it worthwhile to retain the services of a lawyer. To learn more, check out our article on motorcycle insurance claims.
Personal injury claims usually result in the commencement of a lawsuit within a relatively short time after the accident. Even if it is clear that one party was at fault in causing an accident, there could be disagreement over the amount of compensation the negligent party should be ordered to pay.
Even if you believe you were at fault in causing or contributing to an accident, you might still be able to make a claim for compensation against the other party. A lawyer can advise you about the role of contributory negligence under the laws in your state.
Contributory negligence means the party, known as the “plaintiff,” who is seeking compensation contributed in some way to causing the accident or to his or her own injuries. For example, a motorcycle operator who fails to comply with a local helmet law and suffers a head injury in a collision caused by the driver of another vehicle could have the compensation awarded by a jury or by a judge reduced by the percentage of fault jurors or a judge place on the lack of a helmet.
Either party can initiate settlement discussions at any stage of a claim, including before a lawsuit is started. It is not uncommon for personal injury cases to be settled during a trial or while awaiting the jury to complete its deliberations toward reaching a verdict. The difficulty a plaintiff’s attorney might run across when attempting to initiate settlement negotiations with an insurance company is the widespread perception that motorcycle owners are immature and reckless individuals who “pop” wheelies at every opportunity and weave through traffic causing dangerous situations and likely causing the accidents in which they are involved.
Such anti-motorcyclist bias can cause insurance companies to delay the start of settlement talks until every aspect of the claim and the accident have been thoroughly investigated to rule out contributory negligence on the part of the claimant. The claims adjuster is determined to prove the motorcyclist was at fault primarily because of the prevailing anti-motorcycle bias, but this bias is contrary to research and statistical data.
According to the U.S. Department of Transportation, the perception people have about motorcycle riders is simply not true. The truth is that most motorcycle owners are more than 40 years of age. Researchers at the University of South Florida reviewed motorcycle crash reports for a 10-year period and concluded that 60 percent of collisions involving motorcycles and other types of motor vehicles were caused by the drivers of those other vehicles.
The length of time it takes to settle a claim depends upon how long it takes for all parties in the case to complete their investigations and other preliminary work to achieve a clear understanding of the evidence supporting each of the following issues:
Fault: Which of the parties was primarily at fault in causing the accident and the damages suffered by the plaintiff? If the party seeking damages was at fault, what percentage of fault can be attributed to that person?
Damages: What proof exists to support the claim for damages by the plaintiff? Do the medical records of the treatment received by the plaintiff prove the existence of the injuries the plaintiff claims to have suffered in the accident?
Having a clear understanding of the damages and the evidence available to prove their existence is equally as important for the plaintiff as it is for the defense. The last thing an injured plaintiff wants to do is settle a claim for personal injuries without knowing what, if any, medical care will be needed in the future. Once a case is settled, any future medical care or other expenses, such as physical therapy, becomes the responsibility of the plaintiff. This makes it essential for the injured party to anticipate future medical needs before agreeing to settle the claim.
Once the question of fault is resolved, the only issue in a claim for damage to a motorcycle is the cost of repairs or replacement. Most insurers want you to provide an estimate from a repair shop before they schedule an inspection of the vehicle by an adjuster. If the market value of your motorcycle is less than the estimated cost of repairs, a decision might be made by the adjuster to offer you the motorcycle’s value instead of paying to have it repaired.
If you are not certain of the value of your motorcycle, there are guides available on the internet to help you. NADA and Kelley Blue Book are two of the guides frequently used by owners and insurance adjusters for cars and motorcycles.
A common dispute arising in motorcycle property damage claims has to do with damage unrelated to the accident. There could be rust or other evidence spotted by an insurance adjuster leading to the conclusion that it was there before the most recent accident, so the insurance company refuses to pay for it.
Photographs of your motorcycle can be more than simply keepsakes or mementos. They can be used as evidence to support your argument that the damage was caused by the accident. Recent photos give you a decided edge in negotiating a settlement for property damage.
Settlement discussions in property damage claims usually occur soon after the motorcycle is inspected by a claims adjuster. If your claim is filed under your collision coverage, fault in causing the accident is not an issue. This is not the case when you are seeking payment from the insurer for the other party. Even if the evidence shows their insured was at fault in causing the accident, adjusters will look for any excuse to pass as much of the responsibility on to you.
For example, collisions between cars and motorcycles frequently occur when the motorcycle is making a left turn across the lane in which the car is traveling or making a right turn to enter the flow of traffic. Adjusters routinely attempt to place some of the responsibility upon the motorcyclist. This can lead to protracted negotiations and could force a motorcyclist to accept less than the full cost of repairs unless the person is willing to go to court.
Two key questions personal injury attorneys need answered before advising clients whether or not to settle are: What is the likelihood of prevailing at trial, and how much might the jury award in damages? A settlement is usually less than you would expect to receive at trial, but the advantages offered by a settlement include:
- It avoids the risk of a panel of jurors awarding you less or, even worse, siding with the defendant and awarding you nothing because they believe you were at fault.
- The money from a settlement is guaranteed once it is agreed to by the parties. Depending upon the amount of insurance coverage the defendant has, a verdict in excess of the policy limits results in a judgment for the balance that you must take steps to collect through various collection procedures. There is nothing guaranteeing recovery beyond what the insurance company pays. Perhaps the defendant has few or no assets or the assets are protected from collection, so the amount actually received by the plaintiff would be dramatically less than the actual jury award.
- It can take a while before a case advances far enough on a calendar to be assigned to a judge for trial. Aside from the time, trials cost you more in expenses for expert witnesses and other costs you probably would avoid with a settlement.
Another advantage that a settlement might offer is the opportunity for both the insurance company and the plaintiff to structure it in a way that works best for each of them. For example, instead of receiving the entire settlement amount at one time, a plaintiff might opt for a structured settlement if one is offered by the insurance carrier.
A successful settlement will include funds to pay for the following:
- Current and past medical expenses related to your treatment
- Expenses related to future medical treatment predicted by your physicians
- Compensation for the wages you lost from being unable to work
- Anticipated lost or diminished earnings due to disability related to the accident
- Pain and suffering damages compensate you for the physical and emotional pain and discomfort resulting from the accident
There could be other elements of a settlement, such as the availability of punitive damages under the laws of your state, that you should discuss with your attorney.
Depending upon the circumstances, a settlement might offer options beyond a lump-sum payment. A structured settlement allows the insurance company to purchase an annuity that makes payments to the plaintiff according to an agreed upon schedule. The total amount received by a plaintiff over the course of the payout period is more than what would have been offered by the insurer through a traditional settlement. This is because the payments to the plaintiff are paid over time allowing the money invested in the annuity to grow. The initial investment in the annuity is less than the total amount of the payments, so the insurer benefits by saving money.
Keep in mind that insurance companies are not on your side, so you need an advocate whose only commitment is to you and your wellbeing. Motorcycle accident lawyers have the knowledge, skills and insight to offer advice to help you achieve the best possible settlement of your claim, so call one today.