By Theodore C. Levy.
The days of a client walking into your office with a rear end collision case and the lawyer knowing it’s a guaranteed recovery are long gone. Tort reform has greatly limited the right of plaintiffs to recover for their injuries. The area in which this is most strongly felt on a day to day basis for plaintiff’s attorneys are the limited tort/verbal threshold automobile cases.
Many state legislatures have passed laws that limit the right of citizens to sue for automobile accidents. These laws will often require that a plaintiff have a “serious injury” or “serious impairment of bodily function” in order to recover damages for their pain and suffering.
Most plaintiff’s lawyers will not take these cases. They know that the insurance companies fight hard and will not make a good settlement offer or in some cases, will not make any settlement offer. However, by taking the following seven steps, these cases become very winnable.
It happens every day throughout the country. Plaintiff’s lawyers turn down good cases because they do not believe their client will pierce a tort threshold, when in fact there was an exception that makes the tort threshold inapplicable. For example, in Pennsylvania a limited tort plaintiff could be deemed full tort in the following ways:
The plaintiff’s insurance company cannot produce the limited tort selection form. In Pennsylvania every person selecting limited tort must make a proper tort election. Unless the plaintiff or their family member signed a limited tort election and the insurance company can produce the signed form, the plaintiff is full tort. (This actually happens. It happened to me in one of the first cases I handled and I got a good recovery on a case that many people would have rejected or settled for nuisance value.)
Most states have exceptions like Pennsylvania. As a plaintiff’s lawyer, you need to know the exceptions to prevent yourself from turning down an otherwise good case.
The average plaintiff has no idea what type of car insurance they have. They likely selected a limitation on lawsuits and are unaware of this. They will have high expectations about the value of their case from the outset, not understanding why there is chance they will not recover even though they were injured and the accident was not their fault. Take some time to explain it to them. Get client expectations down about some huge settlement figure. Let them know that insurance companies do not like paying out on cases with tort thresholds and fight them to the end. Tell them that this case very likely will have to be tried and settlement talk is unlikely until depositions and written discovery are completed, at the very least.
You can also use it to try to get the plaintiff invested in the case. Explain that in order to recover fully, they need to prove a serious injury and that the only way they can do that is to go to treatment as long as they have problems and follow the recommendations of their doctor. When their treatment lapses, call the client and explain how there is nothing you can do for them unless they are diligent about treating for their injuries.
In a car accident case in which the defendant’s insurance company accepts liability, plaintiff’s lawyers will usually send a demand package with medical records enclosed. Barring a catastrophic injury which is worth far more than the insurance policy, this is a waste of time in a limited tort case. 30-60 days after sending the demand package, you will get a letter from the insurance adjuster stating that your client’s injuries are not serious and the insurance company will offer you the outstanding medical bills. If the insurance company believes they have a causation defense, the offer will be zero. File suit, hit them with discovery and put pressure on them.
Many states, such as Pennsylvania, have a compulsory arbitration track for lower value cases. In Pennsylvania, the cut off is $50,000. Even in a limited tort case that you would settle for $25,000 (or in a case where the defendant’s insurance policy is only $25,000) you need to file as a major jury matter. This is the only thing that will scare an insurance company into settlement.
Plaintiff’s lawyers can forget about settlement at the arbitration level. Insurance companies like State Farm and Allstate usually give marching orders that their attorneys arbitrate the limited tort case and often direct their attorneys to appeal losses they incur at the arbitration, even when the award is well within the reasonable range.
A major jury case gives the defendant’s insurance company a cost of defense and potential exposure, which will scare them and they will often end up paying full tort value for the cases. Insurance companies will, eventually and after a long fight, make an offer of close to full tort value in limited tort cases unless they do not believe the plaintiff has a chance to prevail at trial.
The plaintiff’s answers to interrogatories and answers in his/her deposition are much more important when a tort threshold applies than when it does not apply. In a case without a tort threshold, it is difficult to lose the case at the deposition (although you certainly can hurt it). In a limited tort case, if the defense attorney ever can lock your client into making any statement suggesting that he/she is not badly hurt, can do pretty much everything he/she could do prior to the accident or has had no major lifestyle changes since the accident, your case is over.
Deposition prep is essential. Hours of preparation will be necessary and the client will need to be able to explain how the injuries impact his/her life in a daily basis. Your client must have answers ready when the Defense attorney asks what they can no longer do as a result of the accident and what they can no longer do as well as they could before.
Does a herniated disc pierce limited tort? Does a bad sprain? Does a hairline fracture? I have no idea and neither does anyone else. At deposition and at trial, it will not be enough to for a client to explain what hurts and have their doctor explain the plaintiff’s medical diagnosis. The focus must be on the impairments and how each impairment affects the plaintiff’s life.
Does the plaintiff’s bad back prevent her from picking up her grandchildren? Have her prepared to answer the question. Anything anecdotal is powerful, a specific time that the plaintiff realized that he/she couldn’t lift the grandchildren, carry grocery bags or make love to his/her spouse is very powerful. Stories are better than lists for explaining impairment.
One of the instructions that plaintiff’s lawyers give before their clients are deposed is to give the most succinct answer possible to the question and don’t give any additional information. This is a very bad default when harms and losses are discussed in tort threshold cases.
When the defense attorney inevitably asks your client what he or she cannot do since the accident, your client needs to have an answer ready, an answer that will let the defense attorney know that your client has a good chance of piercing the tort threshold at trial. Substantial deposition prep, often two prep sessions, is what you need to accomplish this.
Do not take a case with a tort threshold in the hopes that it will settle easily. It won’t. At the very least the defendants will want depositions. Usually they will want to complete discovery and go through the settlement conference and pretrial conference. But if you’ve litigated the case properly up until that point, the defendants will usually want to settle with you, often for close to the amount they would have offered if the tort threshold did not exist. And if they are not interested in settlement and you have to try the case, you will be prepared and have a good chance of prevailing and getting an award for your client.
Theodore Levy is a trial lawyer with Fine and Staud, LLP in Philadelphia. His areas of practice include auto, bus and truck accidents, defective products/products liability, slip and falls, premises liability, medical malpractice, breach of contract, bad faith and unfair trade practices.
