Help with pain and suffering on uninsured motorist claim (motorcycle)
May 24, 2013 6:06 AM   Subscribe

So I was in a motorcycle accident a month and a half ago when an inattentive driver caused me to get into a single-vehicle accident. Because that driver did not stop, my insurance company covered me under uninsured motorist coverage. The company, Progressive, has been great about everything so far, but now they want to cover the "pain and suffering" portion of the claim. I'm at a bit of a loss as to how to proceed and would appreciate guidance from people who have been through this sort of thing.

So the brief details of the accident- I was riding my bike, when a pickup going the opposite direction drifted very far into my lane. I ended up off the road to avoid getting hit and ended up off my bike, dislocating my elbow and fracturing my medial epicondyle. The driver, who I suspect was paying no attention at all, did not stop. I had surgery about 6 weeks ago, and I've been going to physical therapy (actually, occupational therapy, but close enough) 3 times a week since then. So far, my range of motion in my elbow in flexion is poor, and it's quite annoying; I can't button my shirt easily, etc. The therapy is ongoing, but no one can yet predict what range of motion I will get back.

I have a lot of mixed feelings about the "pain and suffering" portion of this. First, my insurance company has been very cooperative, and given the "phantom vehicle" nature of the accident, I'm appreciative of that fact. At the same time, my understanding is that in the "uninsured motorist" coverage, they are, essentially, representing the asshat who caused my accident. Most significantly, I don't have any idea (at all) what they will offer or what is reasonable.

I don't have quantifiable financial losses due to the accident. (My job is very flexible as far as sick leave, scheduling, etc.). At the same time, I don't know how much range of motion in flexion of my elbow I will get back, and I don't know whether this will continue to bother me for the rest of my life. (I'm currently in my mid-30s if that enters into the formula at all.) I'm tempted to say I'd like to wait until I'm done with the PT before settling the claim, but I'm not certain if that's the best plan.

Any guidance from anyone with experience with any part of this would be very much appreciated. (Yes, I know YANML, TINLA, etc.) This is posted anonymously for several reasons, but if you have follow-up questions, I will find a way to answer. Thanks!
posted by anonymous to Travel & Transportation (10 answers total)
Here's the thing about pain and suffering. You typically get 5 times your total medical bills for pain and suffering. If you get a lawyer, you get to give him 33% of your take.

I agree, you need two things to evaluate their offer, you need to finish PT and you need your doctor to give you a rating of disability. For example, mine was 15% for my back injury.

Then, once you have that, you can evaluate.

So, get all of your medical bills together, and total them up. Then times 5. See if that's near what they're offering.

Just speak to your person at Progressive "I'd like to settle this too, but we're still in limbo about how I'm healing. I'd like to keep the claim open until after I've completed PT and seen my doctor for a rating of my disability."
posted by Ruthless Bunny at 6:17 AM on May 24, 2013

They're volunteering pain and suffering payment?

I would first find out where the money is coming from. Sceptical eye, and one eyebrow raised.
posted by Kruger5 at 6:28 AM on May 24, 2013

Get a lawyer. Russ Brown is a motorcycle attorney. Seriously.
posted by Sophie1 at 7:21 AM on May 24, 2013

RB is correct. I used to work in insurance claims as an adjuster working with people who had been injured and settling claims. From what I recall, 5x injuries is about correct. It's sometimes a hard sell, though, because pain and suffering is something that doesn't always translate directly into dollars, from the perspective of the injured person. But this is how the courts have decided that things should be indemnified, through money. A resulting disability also has a dollar amount, based on industry standards.

A few things to keep in mind. First, you will want to wait until you are sure you are done with treatment, because once this thing is settled, it's done. By cashing the check you a agreeing to a particular settlement, and you can't come back later and ask for more.

Second, you don't necessarily need a lawyer. It doesn't hurt you, except that you will lose 33% of the settlement to the lawyer. We always had the exact same conversation with lawyers that we would have with claimaints, and it was pretty much an issue of collecting the bills, applying the standard formula, and maybe haggling just a little bit based on a few stray variables. Just keep in mind that personal time in working on the claim is not something you can monetize. It has to be a loss that you can establish on paper, either material damage or hospital bills, or lost wages at work.

Third, your company would like to settle with you fairly, and this isn't sketchy. They will undoubtedly be more kind in their dealings with you because you are their insured. But they do want to settle, because otherwise this is an open claim which means that there is indeterminate financial exposure on the books (i.e., an unknown future expense), and companies hate this for recordkeeping. They will (or should be) willing to track with you until your treatment is done, but they would want to settle soon after this, if possible. You can take some time though to make sure your treatment is done and you are healed, though. They should give you the space to do this. Just keep good track of your medical bills and all expenses related to the accident.
posted by SpacemanStix at 7:44 AM on May 24, 2013

IAAL, but IANYL. TINLA. I did a little bit of plaintiff/injury law a few years ago in California. The "33%" number is almost always low. It's generally more like "25% after phone calls, 33% after filing suit, 40% after opening statements, plus client pays 100% of expenses like depositions, expert reports, medical exams, etc." The total difference between what you "win" and what you deposit is frequently and easily over 50%.

I think contingency cases are a bad deal for clients, and P&S is mostly just a way to increase the case value so it makes sense for a lawyer to work on it, with the client still pocketing enough to cover his bare medical bills. (I also realize that without contingency representation, some people would get no representation at all, so it's a necessary evil, but not one I care to get involved with.)

Anyway, I agree with Kruger5 that it's strange of Progressive to be offering to pay P&S. Normally insurance wants to pay things you have bills for, so if you sue, you end up going before the jury to say "but also my feewings were hurt!"

Only you can decide how much you're willing to accept for being forced to live with physical aches & limitations. Then, after you decide, you have to try to get Progressive to agree. A lawyer might help with the latter, but then you have to get Progressive to agree to twice as much.

I don't think there's anything wrong with not getting every last dime out of the insurer; if you're happy and able to move on with your life, and won't be bitter and grumbly about your stiff elbow on cold winter rides, who cares? Life is short, and a bad day on a bike usually beats a good day in court.

Good luck.
posted by spacewrench at 7:47 AM on May 24, 2013

[This is a followup from the asker.]
I just got a call from Progressive, and the reason they want to settle now is because this is my uninsured motorist coverage, and they are prepared to offer the maximum coverage on that. Given that (which I hadn't understood previously) is there any reason I shouldn't settle now?
posted by cortex (staff) at 8:00 AM on May 24, 2013

Someone who has done this more recently may be better suited to answer this, but from what I understand, there wouldn't be a reason to decline the offer at this point. You are unable to go after the liable person directly for payment, and there aren't options to get more money from your insurance company. However, one thing that you might want to investigate is if you had medical coverage on your policy, and if you can dip into that, as well. I'm guessing that your carrier would have let you know about this before now, however, if you had it.
posted by SpacemanStix at 8:30 AM on May 24, 2013 [1 favorite]

You can get more, but it's a process (my sister sued OUR uninsured motorist insurance when she was injured as a passenger in a drunk driving accident in San Francisco). She got more than the max.

Here's the thing though do you feel it's fair and enough? If they aren't holding anything back, then I say, why not? It's a whole lot better than the nothing you're going to get for suing the guy who caused the accident and you get to keep it all, so I'm thinking that you're going to be coming out ahead of most folks in the same boat.
posted by Ruthless Bunny at 8:42 AM on May 24, 2013 [1 favorite]

Before taking the maximum limit, make certain that it is the maximum amount by comparing the offer to the declaration page that lists the coverages.
posted by mygoditsbob at 12:56 PM on May 24, 2013

You may want to pay for an hour of a lawyer's time to make sure there isn't anything you've missed, but it sounds like you should take the money.
posted by twblalock at 2:43 PM on May 24, 2013

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