An insurance claim eventually consists of three parts: a presentation of the applicable law, transmittal of medical and other evidence. and a demand for payment based on a reasonable evaluation of the victim’s legal damages and losses.
The presentation of law includes the relevant city, state or common law (i.e., case law), and tells why the liability for this particular claim falls on the shoulders of the insured. Sometimes, insurance coverage is an issue, so the presentation of law also includes language from the insurance policy (or the standard form of policy if the particular policy is not available), and explains why there is coverage for this claim.
The presentation of evidence includes information about the victim, the dog, the witnesses, the medical treatment, the loss of income, scarring, disability, and other relevant evidence, including photographs of wounds and scars, depending on the particular circumstances.
The attorney must augment the medical records with medical reports by doctors who are in a position to comment about future medical treatment, long range prognosis (i.e., will the scars be permanent?), future disability, and future medical costs. The attorney pays for the cost of those reports.
Information about the witnesses includes a statement as to what the witness will say. In some cases, the statement will be from the witness. In critical cases, the statement will be in the form of a deposition of the witness (which requires the prior filing of a lawsuit).
The evaluation is the attorney’s opinion of the settlement value of the claim. The easy items to evaluate are the medical and other bills. The hardest items to evaluate are the intangible losses — the pain and suffering, the emotional harm, the losses to the victim’s family.
The evaluation should state which items of loss are presented under which portions of the insurance policy. Three coverages might be applicable:
- Medical bills (up to a limit) are covered under the medical payment provisions.
- Torn clothing, broken glasses and other property losses are covered under the property damage provisions.
- Pain and suffering, lost income, bystander claims and most other losses come under the liability provisions.
There is no formula for evaluating claims. Certainly, the bills are a beginning. But there is no formula that works in every case. Some elements of a claim are particularly difficult, including scarring and disfigurement. The attorney must rely on his or her experience. Additionally, there are specialized publications that are reliable and, in fact, should be consulted. These include collections of jury verdicts, settlements and the results of mediations, and statistical studies of jury verdicts.
A settlement can occur when liability and the nature and extent of the injuries and losses are reasonably clear. Additionally, an insurance settlement requires that coverage be established. As long as those conditions exist, the timing of the claim is determined by the specifics of the evidence and the requiements of the applicable litigation rules. There is no reason, usually, for failing to present the claim as soon as possible — and every reason for starting it soon and keeping it moving as quickly as possible:
- Witnesses disappear and memories fade.
- Scars might fade (although they actually might get worse).
- A cute little boy who would make a sympathetic victim might turn into someone who appears less than sympathetic (especially if he suffers from emotional distress which causes him to “act out” in any way).
- Insurance companies from time to time go out of business, which effectively destroys the victim’s change to recover damages.
- A knowledgeable attorney can turn a net insurance recovery of, say, $45,000.00 into a net, tax-free settlement of $150,000.00 or more by structuring it properly, if the recovery is for a young child. That same victim will only receive the $45,000.00 if she waits until she becomes older.
Prior to making the claim itself, it is wise for the attorney to inform the insurance adjuster of the range that the claim may fall in. The reason is that insurance companies must reserve sums of money for all of their claims. The attorney must be sure that an adequate of amount is reserved for this claim.
The adjuster reviews the settlement presentation and determines whether more evidence is needed for a proper evaluation from the insurance company’s point of view. The dog owner is interviewed. Sometimes an attorney is consulted, especially if the adjuster has legal questions about liability or the quality of the evidence being presented; sometimes the adjuster seeks an attorney’s opinion about the value of the claim.
The adjuster frequently requests an interview of the victim. Sometimes an investigator secretly follows the victim, if there is a claim for current disability. If the adjuster has medical questions, a medical doctor may be retained for the purpose of evaluating the medical evidence or examining the victim.
After the adjuster is satisfied that he or she is knowledgeable about the claim, the adjuster prepares an evaluation for his or her supervisors. These may include managers and claims examiners, depending on the size of the claim. Local insurance company offices apply to regional managers or corporate officers for authority to settle larger cases.
When the adjuster is given authority to settle the case at a certain monetary figure, the settlement negotiations begin.