Settlement
The attorney may have several possible goals
in a dog bite claim. They include settlement, protecting the victim from
further injuries (whether physical or emotional), and ensuring an accurate
record in any city proceedings. All dog bite claims have settlement as
a goal, while only some have other goals as well.
Why settle?
Some people say, "I don't want to settle!
I want my day in court!"
No you don't.
"Yes I do! I want justice, and I want
everyone to see what that lousy dog owner did to me!"
Not realistic.
When you suffer a bodily injury, the purpose
of the civil justice system is to compensate you. In other words, you get
money. You don't get back your amputated nose or ear -- your suffering
and disability would get more relief with aspirin.
If getting money is your idea of justice,
then you'll be quite satisfied with this system, but if your idea of justice
is something else, you will be disappointed, not only with the limited
goal of the justice system (i.e., to give you money but not take away your
pain), but also with the cost, duration and effort required to reach that
goal. You will not get paid what you deserve simply because you got bit
and asked for money. The nature and extent of your injuries and other losses
(like loss of income from your work) have to be proved. This means that
there will be two investigations, one by your attorney and another by the
insurance company.
And incidentally, if you want an example
of complete injustice, consider the victims who are bitten by dogs belonging
to people who don't have insurance and therefore receive absolutely nothing,
not even money. This brings up one of the best reasons to settle: the dog
owner has a certain amount of insurance and no other firm assets, and his
insurance company is offering to pay all of that insurance today if you
agree to drop your case. Under those circumstances, there is literally
nothing to be gained by insisting on your day in court.
No matter how angry you got after you were
bitten, you will actually get past the anger at some point in the future,
and that point will come prior to the case being ripe for settlement negotiations.
The cost, duration and effort to make a settlement presentation will convince
you that you won't want to endure the cost, duration and effort of getting
a day in court. Trials are expensive -- your doctor whom you worship like
a god might charge $6,000 per day to testify at depositions and trials!
There are fees to be paid to the court, the witnesses, the sheriffs, the
jurors, the court reporters, the exhibit preparation companies, and on
and on.
There are laws in many places that just
about require you to settle under some circumstances. For example, some
laws state that, if the insurance company offers you a certain amount and
you reject it, you have to pay all of the costs of the insurance company
if a jury doesn't give you more money than the insurance company offered
you. Since nobody can predict what a jury will do (remember the O.J.Simpson
trial?), you have no realistic choice other than to accept an offer that
is anywhere in the "ballpark."
What is necessary
to make a settlement?
A settlement can occur when liability
and the nature and extent of the injuries and losses are reasonably clear.
As to each of these aspects of the claim, the attorney has to present proper evidence
to the insurance company. Equally important, the attorney must give the adjuster
a comprehensive analysis in writing, concluding with a reasonable demand for payment
of money to the victim. Kenneth Phillips refers to this as the "settlement presentation."
(For more information about this process, see Insurance Claim.)
What do I have to
sign?
The victim has to sign a release or waiver
of his or her right to receive any further money or other remedies, or
to proceed through the courts. The release or waiver will bind the victim's
spouse and heirs too. If a case was filed in court, then the victim and
his attorney must sign something in the proper format that will end the
case. If a court judgment was rendered, then the victim and his attorney
must sign something that releases the judgment. All of this paperwork is
technical and must be prepared by an attorney.
How is settlement
different for victims who are minors?
A minor cannot sign a release or waiver
of his or her right to receive any further money or other remedies, or to proceed
through the courts. Insurance companies don't want to be sued by the minor when
he or she becomes an adult. In most jurisdictions, there are procedures for getting
the approval of a judge, which will bind the minor, the parents, the attorney
for the minor, the defendant and the insurance company. Children's settlements
are frequently set up as "structured settlements," which provide for periodic,
future payments. (For more information, see Structured
Settlements and Withdrawing
Funds from Blocked Accounts.)
Taxation of settlements
The victim does not have to pay taxes on his
net share of the settlement, except for that portion of the money that
(a) compensates him or her for loss of income, and (b) constitutes punitive
damages. For example, if the victim settled for $112,000.00, and $12,000.00
of the settlement was intended to compensate her for lost wages, and if
the victim's attorney received one-third of the settlement as a fee, then
the victim would have to pay taxes on $9,000.00 (i.e., $12,000.00 less
$3,000.00 for the attorney). If the victim's effective tax rate is one-third,
then $3,000.00 (i.e., one-third of $9,000.00) would be owed as taxes.
When the victim invests the settlement
proceeds, she must pay taxes on gains from the investment (i.e., the gains are
included in her gross income). The only way to avoid paying taxes on the gains
is to enter into a structured settlement. (See Structured
Settlements.)
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and each of its sections, including Dog Bite Law , The Dog
Bite Law Adviser and the foregoing text, are (c) 1999-2005 Kenneth Morgan
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where advance permission is granted in writing.