The attorney usually has a number of goals in a dog bite claim. They include proper compensation for the victim, assuring tax-exampt status for the interest on a structured settlement, getting reductions in claims against the settlement (such as those by doctors, health insurers and governmental agencies that paid benefits). They also include the speedy and efficient resolution of your case — resolving it at the lowest cost to you, the faster receipt of money, and the lowest possible expenditure (by you) of effort and stress. All of these goals are well served by settlement.
In the brief titled Policy Limits Settlement, Attorney Kenneth M. Phillips describes the upper limits of a normal dog bite settlement, which would be settlement for the absolute upper limits of the dog owner’s homeowners or renters insurance policy. In the next part of this brief are answers to some of the more basic questions pertaining to settlements:
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!”
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. A fraction of one percent of dog bite victims receive a settlement from liability insurers (in other words, compensation over whatever their health insurance company might pay for medical bills). 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 you 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. The cost, duration and effort to settle are far less than the cost, duration and effort of getting a day in court. Trials are expensive — your doctor whom you worship like a god might charge $10,000 per day to testify at depositions and trials! If there were no trial, there would be no expenditures for expert witnesses, who would otherwise charge tens of thousands of dollars; no increased legal fees, which otherwise would rise from the base percentage of 33-1/3% to 40% of the recovery, increasing thousands of dollars; no trial costs, such as court reporting fees, witness fees, jury fees, exhibit creation fees, motion fees, courtroom graphic fees and related audio-visual rental fees, and many other costs, which would run into thousands of dollars. Additionally, were the opposing party to offer a settlement pursuant to a statute enacted to promote settlements, you would be liable for the payment of the opposing party’s costs in addition to your own; this could double your costs.
If there were no trial, you would receive your share of the settlement in the near future as opposed to the distant future, because you would not have to wait for trial (which can be delayed for many reasons), the motions following trial which pertain to payment of costs, and the possible appeal of the case. The latter would normally take years to resolve, and many times has resulted in the parties having to try the case a second time.
If there were no trial, the resolution of your case would come at a much lower personal cost in terms of time, effort and stress. Prior to the trial, you and your witnesses would have to be present for depositions and meetings; all of you would lose time from work, and therefore would lose income. The victim would have to be examined and reexamined, tested and retested by doctors, including the ones who would be hired by the opposing party. You would have to prepare written answers to final interrogatories and demands for production of physical evidence.
If there were a trial, you and your witnesses would have to be available for it; all of you would again lose time from work, and therefore would lose income. You would have to work up answers to questions that would be posed during direct examination in court and cross-examination by the opposing party’s attorney. You would have to sit through the other side’s presentation of the evidence against you, which you certainly would disagree with, and would have to listen to their arguments against your request for monetary compensation, which could be hurtful for you to hear. You and your family would have to put off resolving any of the financial issues that arose because of the accident, such as the payment of balances to doctors and hospitals; you would have to deal with the anxiety of those bills being unpaid, and the possibility that you might not be able to pay them at any time in the future, or even at all.
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 what the insurance company offered you. Since nobody can predict what a jury will do, you have no realistic choice other than to accept an offer that is 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. Attorney 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.)