Is this a liability case or just one for my insurance?
February 6, 2014 6:53 AM Subscribe
Yesterday, my partner slipped and fell while dropping our kid off at preschool. Every possible option about how to handle this makes me uneasy. You're not my lawyer, but that's okay, because my question is not if I can call I lawyer (or let my insurance company do the same), but whether I want to do that...
She was walking down a tiled hallway at my son's daycare/preschool after coming in from the snow, and her legs just went right out from underneath her and she landed on her face. She came to in a puddle of blood with a steadily bleeding nose, too disoriented to be able to get to her feet on her own. My nearly five year-old son (little champ that he is) went for help and teachers came to assist. An ambulance was called and she was taken to a nearby emergency room. A CT scan showed that while she had a concussion, she had no brain bleed. Her nose is broken badly in several places. We'll need to consult with a plastic surgeon and she was almost definitely require a corrective nose job. No stitches were needed, as the worst lacerations on her face were deep, but still not wide--less than a quarter inch. The school was very kind throughout. They filed and incident report to be thorough. And when I went back to pick up my son, they'd added "Wet Floors" signs everywhere.
Though, really, the floors weren't in particularly bad shape or anything, even when she fell. They might have been a little wet, but not more than a person would expect with eight inches of snow outside. The floors can get a bit slick there. But my partner also had on high heeled boots, which didn't help on her end.
Here's my dilemma: I know we probably can call a lawyer (or get our insurance company to do more or less the same possibly), but do I want to do that? I mean, yes, my partner fell on their property. And yes, even with insurance, this is going to present a substantial bill--ambulance ride, ER visit, plastic surgery, and all. Paying for this is going to be a significant drag on our resources, just as we were getting above water. Part of me thinks, well, this is why facilities are insured and that's just what you do.
BUT... this is a really small school, run by a really sweet lady. A hefty percentage of the kids there have their way paid by government assistance. It's not like we can just sic our lawyers on The Man and never think about it again. We'd be putting the squeeze on one, extraordinarily kind lady whose lovely, clean, well-run little preschool that caters to blue collar and low income people is practically a public service. Our kid has been going there for three years. Holding this woman and her small business liable would feel just awful.
He's set to keep going there for three more months before his grandmother comes back and spends the late spring/summer with him in advance of him starting kindergarten at public school.
So what do I do? How should I look at this? Do I just call a lawyer or maybe just contact my insurance company and explain the situation and let the people with the nice suits do what they do, because that's how it works? Or do I just say, welp, sometimes we all fall down, pay my insurance deductibles, co-pays, etc. and consider it a cost of living?
She was walking down a tiled hallway at my son's daycare/preschool after coming in from the snow, and her legs just went right out from underneath her and she landed on her face. She came to in a puddle of blood with a steadily bleeding nose, too disoriented to be able to get to her feet on her own. My nearly five year-old son (little champ that he is) went for help and teachers came to assist. An ambulance was called and she was taken to a nearby emergency room. A CT scan showed that while she had a concussion, she had no brain bleed. Her nose is broken badly in several places. We'll need to consult with a plastic surgeon and she was almost definitely require a corrective nose job. No stitches were needed, as the worst lacerations on her face were deep, but still not wide--less than a quarter inch. The school was very kind throughout. They filed and incident report to be thorough. And when I went back to pick up my son, they'd added "Wet Floors" signs everywhere.
Though, really, the floors weren't in particularly bad shape or anything, even when she fell. They might have been a little wet, but not more than a person would expect with eight inches of snow outside. The floors can get a bit slick there. But my partner also had on high heeled boots, which didn't help on her end.
Here's my dilemma: I know we probably can call a lawyer (or get our insurance company to do more or less the same possibly), but do I want to do that? I mean, yes, my partner fell on their property. And yes, even with insurance, this is going to present a substantial bill--ambulance ride, ER visit, plastic surgery, and all. Paying for this is going to be a significant drag on our resources, just as we were getting above water. Part of me thinks, well, this is why facilities are insured and that's just what you do.
BUT... this is a really small school, run by a really sweet lady. A hefty percentage of the kids there have their way paid by government assistance. It's not like we can just sic our lawyers on The Man and never think about it again. We'd be putting the squeeze on one, extraordinarily kind lady whose lovely, clean, well-run little preschool that caters to blue collar and low income people is practically a public service. Our kid has been going there for three years. Holding this woman and her small business liable would feel just awful.
He's set to keep going there for three more months before his grandmother comes back and spends the late spring/summer with him in advance of him starting kindergarten at public school.
So what do I do? How should I look at this? Do I just call a lawyer or maybe just contact my insurance company and explain the situation and let the people with the nice suits do what they do, because that's how it works? Or do I just say, welp, sometimes we all fall down, pay my insurance deductibles, co-pays, etc. and consider it a cost of living?
The first question is, in what way was the school responsible for your partner's fall? Did they fail to do something? If not, perhaps it was just one of those things.
You don't have to pay for everything right away, and yes, it sucks, but there it is.
Sometimes things happens and it's nobody's fault.
posted by Ruthless Bunny at 6:56 AM on February 6, 2014 [9 favorites]
You don't have to pay for everything right away, and yes, it sucks, but there it is.
Sometimes things happens and it's nobody's fault.
posted by Ruthless Bunny at 6:56 AM on February 6, 2014 [9 favorites]
Ooof. This is a tough, tough, tough question, because there are two viewpoints, each valid: the legal viewpoint and the moral viewpoint. Legally? She injured herself on their property, due to conditions present on their property, and there would be nothing at all sketchy/bad about pursuing their insurance company due to this. This is the "legal fault" angle.
But moral fault, on the other hand? That's trickier. What happened to her there could have happened to her anywhere - it's not as though there were unusually bad conditions. She didn't fall BECAUSE she was there, she HAPPENED to fall WHILE she was there. And yeah, as Ruthless Bunny said, sometimes things happen that are nobody's fault.
Me, personally? I'd suck it up and eat the cost because I know that I'd feel awful about pursuing damages that might hurt the business more than they would hurt ME, solely because I COULD (not because I was really in the right, ethically-speaking). But that is your own choice to make.
posted by julthumbscrew at 7:01 AM on February 6, 2014
But moral fault, on the other hand? That's trickier. What happened to her there could have happened to her anywhere - it's not as though there were unusually bad conditions. She didn't fall BECAUSE she was there, she HAPPENED to fall WHILE she was there. And yeah, as Ruthless Bunny said, sometimes things happen that are nobody's fault.
Me, personally? I'd suck it up and eat the cost because I know that I'd feel awful about pursuing damages that might hurt the business more than they would hurt ME, solely because I COULD (not because I was really in the right, ethically-speaking). But that is your own choice to make.
posted by julthumbscrew at 7:01 AM on February 6, 2014
So how did she fall exactly? If she was wearing shoes suitable for snow I doubt she could slip.
If you sue you might want to start looking for a new school for your son.
posted by devnull at 7:04 AM on February 6, 2014
If you sue you might want to start looking for a new school for your son.
posted by devnull at 7:04 AM on February 6, 2014
Keep in mind that your health insurance company will likely go after the school for reimbursement of amounts they paid for your wife's care. So, you're not really protecting the school from anything by not pursuing this.
posted by melissasaurus at 7:05 AM on February 6, 2014 [6 favorites]
posted by melissasaurus at 7:05 AM on February 6, 2014 [6 favorites]
I'm not your lawyer and this is not legal advice. You should definitely talk to a lawyer.
And that's whether or not you're looking for damages now. Again, this is not legal advice, but would signs have helped? Maybe. Could your wife better protected herself by wearing different boots? Maybe. If this is an area with a lot of snow, would a "reasonable person" (a legal standard) put out anti-skid mats in an area with tiling? Maybe. All of that would be for a jury to decide (or for lawyers to negotiate).
And--please forgive me--would your answer change if your wife were to die on the operating table getting her plastic surgery? Or if she had sinus problems for the rest of her life? Again, forgive the horrible hypothetical--but I'd be leery of reaching out to the school and saying, "Hey, just help with the ambulance costs--accidents happen."
But accidents DO happen, and sometimes facilities should spend $100 on a weather mat to ensure people don't fall and hurt themselves, even if those people are wearing the wrong boots.
Talking with a lawyer will give you, at the very least, an ally who can help protect your rights if you change your mind in the future about what you want.
Again, this is not legal advice and I am not your lawyer.
Good luck.
posted by Admiral Haddock at 7:06 AM on February 6, 2014 [8 favorites]
And that's whether or not you're looking for damages now. Again, this is not legal advice, but would signs have helped? Maybe. Could your wife better protected herself by wearing different boots? Maybe. If this is an area with a lot of snow, would a "reasonable person" (a legal standard) put out anti-skid mats in an area with tiling? Maybe. All of that would be for a jury to decide (or for lawyers to negotiate).
And--please forgive me--would your answer change if your wife were to die on the operating table getting her plastic surgery? Or if she had sinus problems for the rest of her life? Again, forgive the horrible hypothetical--but I'd be leery of reaching out to the school and saying, "Hey, just help with the ambulance costs--accidents happen."
But accidents DO happen, and sometimes facilities should spend $100 on a weather mat to ensure people don't fall and hurt themselves, even if those people are wearing the wrong boots.
Talking with a lawyer will give you, at the very least, an ally who can help protect your rights if you change your mind in the future about what you want.
Again, this is not legal advice and I am not your lawyer.
Good luck.
posted by Admiral Haddock at 7:06 AM on February 6, 2014 [8 favorites]
I'm not sure you're going to have a choice in this. Eventually, your insurance company is going to ask "how did this happen" and when they find out, they will "go after" (notice the quotes) the preschool's insurance because they don't want this to come out of their bottom line. This is sort of standard operating procedure with insurance.
I think you should talk with an attorney about what your options are, but know that with or without your consent the preschool and their insurance are very likely going to be involved, eventually.
posted by anastasiav at 7:07 AM on February 6, 2014 [13 favorites]
I think you should talk with an attorney about what your options are, but know that with or without your consent the preschool and their insurance are very likely going to be involved, eventually.
posted by anastasiav at 7:07 AM on February 6, 2014 [13 favorites]
When my daughter broke her arm at a pumpkin patch our insurance sued their insurance to recover costs. Neither us nor the farm were even informed of the suit until our insurance asked us if we wanted to tack on a filing for damages (we didn't). We had nothing to do with the case and initiated nothing more than an insurance claim, the company did everything else on their own.
posted by The 10th Regiment of Foot at 7:10 AM on February 6, 2014 [4 favorites]
posted by The 10th Regiment of Foot at 7:10 AM on February 6, 2014 [4 favorites]
this is a really small school, run by a really sweet lady.
Surely this really small school run by a really sweet lady has adequate public liability cover? And wouldn't that mean that you're not actually proposing to soak a really sweet lady, but her not at all even slightly a tiny bit sweet insurer?
Also, if it turns out you do get awarded a damages payment that neither you nor your partner is comfortable accepting, what would stop you making a really generous donation to a really small school run by a really sweet lady?
posted by flabdablet at 7:10 AM on February 6, 2014 [1 favorite]
Surely this really small school run by a really sweet lady has adequate public liability cover? And wouldn't that mean that you're not actually proposing to soak a really sweet lady, but her not at all even slightly a tiny bit sweet insurer?
Also, if it turns out you do get awarded a damages payment that neither you nor your partner is comfortable accepting, what would stop you making a really generous donation to a really small school run by a really sweet lady?
posted by flabdablet at 7:10 AM on February 6, 2014 [1 favorite]
Response by poster: Should I speak with someone at our insurance company preemptively?
Also, 10th Regiment... Did the insurance company sue for all costs or just theirs? That is, did you still pay your co-pays, deductibles, etc.?
posted by DirtyOldTown at 7:14 AM on February 6, 2014
Also, 10th Regiment... Did the insurance company sue for all costs or just theirs? That is, did you still pay your co-pays, deductibles, etc.?
posted by DirtyOldTown at 7:14 AM on February 6, 2014
Every time my family has used insurance for anything beyond a non-standard office visit (stitches, emergency appendectomy) the insurance company has mailed us a letter (that we were required to respond to) asking if there is anybody else who was potentially responsible for the incident. They will do everything they possibly can to get someone else to pay for it.
posted by belladonna at 7:17 AM on February 6, 2014 [3 favorites]
posted by belladonna at 7:17 AM on February 6, 2014 [3 favorites]
I am not a lawyer. I've never sued anyone. I am in no way, shape or form qualified to give expert advice on this. All I have is my sense that you have a strong instinct here: you don't think suing the school is the right thing to do.
I think that's your conscience talking, and I think you should listen to it.
I would never say *don't* talk to a lawyer - more information is always good - but if you go that route, you're going to be surrounded by people with a vested financial interest in convincing you that you can ignore your moral qualms. There are certainly times when suing is the best, most ethical option. But it's also true that's it's possible to sue, and win, without that decision being ethical. If you talk to a lawyer, that lawyer is going to do his damnedest to convince you that suing is the right thing to do, and that you deserve that money, but "Can I win?" is not an adequate substitute for "Is this right?" A lawyer can help you answer the first question, but will be actively detrimental to answering the second one honestly. Only you (and your wife) can do that.
Good luck, and I wish your wife a speedy and uncomplicated recovery.
posted by pretentious illiterate at 7:35 AM on February 6, 2014 [7 favorites]
I think that's your conscience talking, and I think you should listen to it.
I would never say *don't* talk to a lawyer - more information is always good - but if you go that route, you're going to be surrounded by people with a vested financial interest in convincing you that you can ignore your moral qualms. There are certainly times when suing is the best, most ethical option. But it's also true that's it's possible to sue, and win, without that decision being ethical. If you talk to a lawyer, that lawyer is going to do his damnedest to convince you that suing is the right thing to do, and that you deserve that money, but "Can I win?" is not an adequate substitute for "Is this right?" A lawyer can help you answer the first question, but will be actively detrimental to answering the second one honestly. Only you (and your wife) can do that.
Good luck, and I wish your wife a speedy and uncomplicated recovery.
posted by pretentious illiterate at 7:35 AM on February 6, 2014 [7 favorites]
I will say that your health insurance may subrogate your claim to the day care's insurance. It happens all the time.
You don't have any control over it.
posted by Ruthless Bunny at 7:35 AM on February 6, 2014 [3 favorites]
You don't have any control over it.
posted by Ruthless Bunny at 7:35 AM on February 6, 2014 [3 favorites]
Initially, obtain whatever medical care necessary and put the bills through your medical insurance provider. Additionally, save all receipts for any additional expenses you incur, such as a taxi to the doctors office or repair of clothing that was damaged/soiled from the accident. Also, keep a record of any wages lost as a result of the accident.
You do not need to rush to an attorneys office. You can take your time with that. You can certainly wait until your child is out of the preschool if you don't want to muddy the waters.
However, if at the end of a few months the sum of injuries makes additional compensation appropriate, do not hesitate to see an attorney. I think that the school's insurance company will step in. The school could have done more. The slippery floor without mats and the addition of signs after the fact clearly indicate as much.
And finally, do not worry about the kind lady and the little preschool. All she will do is forward your complaint to the insurance carrier. It will be a small inconvenience. If there is not a pattern of people being injured on the premises, the insurance carrier will not hold a single claim against them.
posted by elf27 at 7:38 AM on February 6, 2014 [1 favorite]
You do not need to rush to an attorneys office. You can take your time with that. You can certainly wait until your child is out of the preschool if you don't want to muddy the waters.
However, if at the end of a few months the sum of injuries makes additional compensation appropriate, do not hesitate to see an attorney. I think that the school's insurance company will step in. The school could have done more. The slippery floor without mats and the addition of signs after the fact clearly indicate as much.
And finally, do not worry about the kind lady and the little preschool. All she will do is forward your complaint to the insurance carrier. It will be a small inconvenience. If there is not a pattern of people being injured on the premises, the insurance carrier will not hold a single claim against them.
posted by elf27 at 7:38 AM on February 6, 2014 [1 favorite]
Insurance definitely only recovered their own costs, we were still on the hook for the co-pays and deductables, though in her case as it required surgery and a hospital stay, many things were covered.
Relatedly, my father died last year of injuries sustained as a passenger in a car accident. My mother was ruled "at fault" and thus my father's health and life insurance companies sued her auto insurance to recover costs. The big kicker: it was a bundled policy so they were just suing other branches of the same company. My brother and I had so sign off twice that we did not wish to sue our mother for pain and suffering and any any money we might have had coming to us had my father survived.
Incidentally, as a result of my father's death we took a family vacation with my mother to Ireland to get away for the Chistmas holidays and now my 6 year old daughter of the formerly broken arm now sings "Dirty Old Town" at full volume with a thick Dublin barroom brogue.
posted by The 10th Regiment of Foot at 7:43 AM on February 6, 2014 [3 favorites]
Relatedly, my father died last year of injuries sustained as a passenger in a car accident. My mother was ruled "at fault" and thus my father's health and life insurance companies sued her auto insurance to recover costs. The big kicker: it was a bundled policy so they were just suing other branches of the same company. My brother and I had so sign off twice that we did not wish to sue our mother for pain and suffering and any any money we might have had coming to us had my father survived.
Incidentally, as a result of my father's death we took a family vacation with my mother to Ireland to get away for the Chistmas holidays and now my 6 year old daughter of the formerly broken arm now sings "Dirty Old Town" at full volume with a thick Dublin barroom brogue.
posted by The 10th Regiment of Foot at 7:43 AM on February 6, 2014 [3 favorites]
Response by poster: Things my partner pointed out I should have mentioned: there was only a single not especially large weather/door mat in place that day; my kid (who had winter boots on) also slipped and fell on the same spot when she did.
posted by DirtyOldTown at 7:55 AM on February 6, 2014
posted by DirtyOldTown at 7:55 AM on February 6, 2014
The school almost certainly has its own insurance. I'd be gobsmacked if they didn't. If they don't, then they shouldn't be in business, and I don't care how sweet and nice they are.
You should absolutely talk to a lawyer. As others point out, it's possible that your insurance company will pursue a legal claim, but if you have expenses not covered by your insurance, it isn't obvious that the insurance company can or will recover them on your behalf. Either way, you need to consult with a lawyer to sort that out. I think it would be a big mistake just to assume your insurance company will take care of it, or that they will have your best interests at stake.
So there's not really any reason for you not to talk to a lawyer. It shouldn't cost you anything to do so.
(I am a lawyer, by the way, but I don't practice in this area, and I'm not acting as your lawyer here.)
posted by mikeand1 at 8:18 AM on February 6, 2014
You should absolutely talk to a lawyer. As others point out, it's possible that your insurance company will pursue a legal claim, but if you have expenses not covered by your insurance, it isn't obvious that the insurance company can or will recover them on your behalf. Either way, you need to consult with a lawyer to sort that out. I think it would be a big mistake just to assume your insurance company will take care of it, or that they will have your best interests at stake.
So there's not really any reason for you not to talk to a lawyer. It shouldn't cost you anything to do so.
(I am a lawyer, by the way, but I don't practice in this area, and I'm not acting as your lawyer here.)
posted by mikeand1 at 8:18 AM on February 6, 2014
IAAL, and though IANYL, I have both prosecuted and defended personal injury cases, including slip-and-falls like this one.
And I can tell you that there is exactly one way to get a decent read on potential liability here: sit down with a personal injury lawyer in your jurisdiction and go over all the facts.
This is especially true in this particular case, because slip-and-fall cases are notoriously difficult to win. There are a lot of PI attorneys who won't even take them. There's a pretty simple explanation for this. Landowners are only responsible for mitigating dangerous conditions of which they are aware or reasonably should have been aware. They are not liable for conditions of which they are reasonably unaware.*
Of course, that puts potential plaintiffs in a tough spot, because all people have a duty of reasonable care, which in the slip-and-fall context boils down to "Watch where you're going." That includes awareness of and allowance for weather and lighting, i.e., if you know it's raining/snowing, you have to be extra careful. So for a slip-and-fall case to succeed, the condition which caused the slip** needs to be sufficiently obvious that the landowner reasonably should have known about it, but not sufficiently obvious that the plaintiff would have avoided it if being reasonably careful. If that sounds like a very delicate balance, that's because it is.
All of that being said, many if not most landowners have insurance policies which provide for a small amount of coverage on a no-fault basis for stuff like this. Limits of $5,000-15,000 are common. If you are injured on their property, for almost any reason, and this coverage is available, it'll pay out.
But getting that check without a lawyer can be really difficult. You're welcome to try, but you'll probably find that the insurance company is going to jerk you around unless you lawyer up. If you're clear from the outset that this is all you're going for, it shouldn't be too difficult to find an attorney who would take the case on contingency. You can expect a fee in the 20% range if there's a settlement before suit is filed.
TL;DR: the liability case is a nightmare for slip-and-falls, but you may have better luck with no-fault coverage if it exists. Consult a local PI attorney.
*Or have not had a reasonable opportunity to mitigate. For instance, if you slip on ice fifteen minutes after it starts precipitating, you're probably SOL.
*And make no mistake, there does need to be a condition. If you trip over your own two feet, you're definitely SOL.
posted by valkyryn at 8:22 AM on February 6, 2014 [10 favorites]
And I can tell you that there is exactly one way to get a decent read on potential liability here: sit down with a personal injury lawyer in your jurisdiction and go over all the facts.
This is especially true in this particular case, because slip-and-fall cases are notoriously difficult to win. There are a lot of PI attorneys who won't even take them. There's a pretty simple explanation for this. Landowners are only responsible for mitigating dangerous conditions of which they are aware or reasonably should have been aware. They are not liable for conditions of which they are reasonably unaware.*
Of course, that puts potential plaintiffs in a tough spot, because all people have a duty of reasonable care, which in the slip-and-fall context boils down to "Watch where you're going." That includes awareness of and allowance for weather and lighting, i.e., if you know it's raining/snowing, you have to be extra careful. So for a slip-and-fall case to succeed, the condition which caused the slip** needs to be sufficiently obvious that the landowner reasonably should have known about it, but not sufficiently obvious that the plaintiff would have avoided it if being reasonably careful. If that sounds like a very delicate balance, that's because it is.
All of that being said, many if not most landowners have insurance policies which provide for a small amount of coverage on a no-fault basis for stuff like this. Limits of $5,000-15,000 are common. If you are injured on their property, for almost any reason, and this coverage is available, it'll pay out.
But getting that check without a lawyer can be really difficult. You're welcome to try, but you'll probably find that the insurance company is going to jerk you around unless you lawyer up. If you're clear from the outset that this is all you're going for, it shouldn't be too difficult to find an attorney who would take the case on contingency. You can expect a fee in the 20% range if there's a settlement before suit is filed.
TL;DR: the liability case is a nightmare for slip-and-falls, but you may have better luck with no-fault coverage if it exists. Consult a local PI attorney.
*Or have not had a reasonable opportunity to mitigate. For instance, if you slip on ice fifteen minutes after it starts precipitating, you're probably SOL.
*And make no mistake, there does need to be a condition. If you trip over your own two feet, you're definitely SOL.
posted by valkyryn at 8:22 AM on February 6, 2014 [10 favorites]
Um, why don't you first just ask the school directly whether they have insurance to cover such things? I do have a little problem with the high heels though. If the floor is of standard material, and the weather conditions were obvious, and your partner was wearing high heels, in principle (ethically, even if legally) how exactly is the school at fault?
posted by Dansaman at 8:31 AM on February 6, 2014
posted by Dansaman at 8:31 AM on February 6, 2014
Something about your question really rubbed me the wrong way, and I think it is the great lengths to which you went to describe that this is not a daycare that (as far as you think) makes a lot of money. I don't really see how this is relevant to whether they were responsible for your partner's fall and it makes me think that you'd really like to get money out of this particular situation even though you already know that it's just not right and cannot get around the emotional barrier of suing an actual person.
I think you have to ask yourself this question: WHAT IF your daycare center was owned by an unlikable person who made a lot of money? Would you be describing this situation in different terms? Would there suddenly be certainty as to whose fault it was?
posted by rada at 8:42 AM on February 6, 2014
I think you have to ask yourself this question: WHAT IF your daycare center was owned by an unlikable person who made a lot of money? Would you be describing this situation in different terms? Would there suddenly be certainty as to whose fault it was?
posted by rada at 8:42 AM on February 6, 2014
Lawyer up. They almost certainly have insurance -- it's probably illegal for them not to -- and if they don't, you'll find that out soon enough. In the US, litigation is how we apportion responsibility and costs for accidents; there's zero moral problem with pursuing litigation when you are injured on someone else's premises.
And the fact that two people that you know of slipped and fell there in a short time is a strong indication that proper safety measures weren't in place.
posted by jayder at 9:03 AM on February 6, 2014
And the fact that two people that you know of slipped and fell there in a short time is a strong indication that proper safety measures weren't in place.
posted by jayder at 9:03 AM on February 6, 2014
Response by poster: it makes me think that you'd really like to get money out of this particular situation even though you already know that it's just not right and cannot get around the emotional barrier of suing an actual person.
I have not entertained any possibility in which I "get money." I specifically said I have zero interest in suing for damages. The issue is, as working class people, the costs we will be incurring, even with insurance, are enough of a hardship that we must consider whether there are avenues we are comfortable with for recouping our costs. We're trying to separate whether there is real liability here that we might be glazing over because of our affection for this woman and her business.
It is true that because of how we feel about this woman and her business, our bar for pursuing any action would have to be extra high. This is a different thing from saying we would lower our standards for an unlikable person or a wealthy business. Under no circumstances would we attempt to take advantage of any business.
I'm actually a little disappointed at what I've learned, in that it appears the most likely scenario is us paying a bunch of money for deductibles, co-pays, and other associated costs, with our insurance company going after the preschool and their insurance to recover their costs. This really seems like the worst of both worlds.
posted by DirtyOldTown at 9:53 AM on February 6, 2014
I have not entertained any possibility in which I "get money." I specifically said I have zero interest in suing for damages. The issue is, as working class people, the costs we will be incurring, even with insurance, are enough of a hardship that we must consider whether there are avenues we are comfortable with for recouping our costs. We're trying to separate whether there is real liability here that we might be glazing over because of our affection for this woman and her business.
It is true that because of how we feel about this woman and her business, our bar for pursuing any action would have to be extra high. This is a different thing from saying we would lower our standards for an unlikable person or a wealthy business. Under no circumstances would we attempt to take advantage of any business.
I'm actually a little disappointed at what I've learned, in that it appears the most likely scenario is us paying a bunch of money for deductibles, co-pays, and other associated costs, with our insurance company going after the preschool and their insurance to recover their costs. This really seems like the worst of both worlds.
posted by DirtyOldTown at 9:53 AM on February 6, 2014
We'd be putting the squeeze on one, extraordinarily kind lady whose lovely, clean, well-run little preschool that caters to blue collar and low income people is practically a public service
Well, not exactly. You'd be putting the squeeze on her insurance company. I can't imagine that any legally run daycare would operate without liability insurance.
For what it's worth, I broke my nose years ago, and someone else was liable for it (I was bit by a dog, the family knew the dog was aggressive, did not warn me, and was not surprised after I got bit). I never even thought about getting a lawyer or pursuing any legal action, because it was my friend's dog and I didn't know that homeowner's insurance would pay for it, I assumed I would have to go after them personally. I was a teenager supported by my family and had health insurance--but it still cost me and my family a lot of money in copays, medications, time missed from school and work and surgery. Over the years, it added up to thousands and years of treatment.
Now that I know that this is the kind of stuff liability insurance is for, I really wish I had talked to a lawyer to see what my options were.
posted by inertia at 10:42 AM on February 6, 2014
Well, not exactly. You'd be putting the squeeze on her insurance company. I can't imagine that any legally run daycare would operate without liability insurance.
For what it's worth, I broke my nose years ago, and someone else was liable for it (I was bit by a dog, the family knew the dog was aggressive, did not warn me, and was not surprised after I got bit). I never even thought about getting a lawyer or pursuing any legal action, because it was my friend's dog and I didn't know that homeowner's insurance would pay for it, I assumed I would have to go after them personally. I was a teenager supported by my family and had health insurance--but it still cost me and my family a lot of money in copays, medications, time missed from school and work and surgery. Over the years, it added up to thousands and years of treatment.
Now that I know that this is the kind of stuff liability insurance is for, I really wish I had talked to a lawyer to see what my options were.
posted by inertia at 10:42 AM on February 6, 2014
p.s. i'm not a lawyer, and this is not legal advice.
posted by inertia at 10:42 AM on February 6, 2014
posted by inertia at 10:42 AM on February 6, 2014
I broke my elbow very badly in a moped accident when a girl on a bike cut me off in the middle of the road. It was absolutely, 100% her fault and she was absolutely, 100% the only one responsible. And she was a nice college kid who was immediately sorry, because she did something really stupid. But I still had to register it as worker's comp because it happened during the work day while I just happened to be riding over to a press conference. Sucks, but them's the breaks.
I still had to pay for a ton of things like a new coat (ripped during the accident), moped repair, a crapton of taxi rides to and from doctor's appointments (because I couldn't drive), all that. Technically I could have sued or even submitted some of these costs for reimbursement, but by that point it would have been too much of a pain to deal with. It's up to you to decide what you're willing to put up with/can afford, and in some ways there's no right or wrong answer.
When I spoke with a lawyer (because I am not a lawyer, and this is not legal advice, and your state will likely have different laws anyway), he said that even if you go with a "no fee until you win" lawyer, they will recoup the amount from the other party's insurance and you'll end up with only about a third of the settlement. I think it first pays back YOUR insurance (or the workers comp or whatever), and then it pays the legal fees, and you get the rest. So, again, it might be more trouble than it's worth. (Small claims court is different, if you have certain expenses that are under $5k or whatever. But, again, ymmv.)
Just find out as much as you can and proceed thoughtfully. The preschool really has no choice here; they will probably have to go through a rigamarole one way or another. They're not bad people; you're not bad people; the lawyers you or they speak with are not bad people. Shit happens.
posted by Madamina at 10:48 AM on February 6, 2014
I still had to pay for a ton of things like a new coat (ripped during the accident), moped repair, a crapton of taxi rides to and from doctor's appointments (because I couldn't drive), all that. Technically I could have sued or even submitted some of these costs for reimbursement, but by that point it would have been too much of a pain to deal with. It's up to you to decide what you're willing to put up with/can afford, and in some ways there's no right or wrong answer.
When I spoke with a lawyer (because I am not a lawyer, and this is not legal advice, and your state will likely have different laws anyway), he said that even if you go with a "no fee until you win" lawyer, they will recoup the amount from the other party's insurance and you'll end up with only about a third of the settlement. I think it first pays back YOUR insurance (or the workers comp or whatever), and then it pays the legal fees, and you get the rest. So, again, it might be more trouble than it's worth. (Small claims court is different, if you have certain expenses that are under $5k or whatever. But, again, ymmv.)
Just find out as much as you can and proceed thoughtfully. The preschool really has no choice here; they will probably have to go through a rigamarole one way or another. They're not bad people; you're not bad people; the lawyers you or they speak with are not bad people. Shit happens.
posted by Madamina at 10:48 AM on February 6, 2014
You're ultimately asking a moral question about who you feel should pay the costs for this equation: bad weather + probably poor shoe choice + probably minimal wet-floor cleanup = expensive medical bills. And this we can't answer for you.
I can give you my own personal answer, as the former board member of a small and trying-hard-to-make-it school: Don't sue. You'll hurt people who are trying really hard, even if their insurance ultimately pays, because their names will be on the law suit and they'll go through the whole pre-trial and trial period taking it very, very personally. They will lose sleep, they will grow to hate you, and you will grow to hate them because they will oppose everything you say -- that's what lawsuits do. They pit you against them, and it's painful and awful for everyone.
You will be forced to explain why they're negligent and uncaring. They will be forced to explain why your partner is clueless and clumsy and ultimately undeserving of compensation. This will not be simply a battle between two insurance companies. It will be a personal battle between you and them.
There will be important financial consequences to this lovely little school. Their insurance premiums will go up, and they may lose coverage, even if they prevail in court, because the cost of the lawsuit is so high. They will lose time and money responding to depositions and reading documents and meeting with their lawyers. They will spend energy and focus on your lawsuit, and not on the children in their care.
There will be major financial consequences to you, too. You will have to take time off work, and spend hours on this thing. You will spend money on exhibits and filing fees and experts. If you win, you probably won't be fully compensated anyway. And if you lose, you'll pay the daycare center's legal costs too.
I realize that it's painful to pay these medical costs, and that yes, the center almost certainly could have prevented the accident with more care. But yes, I think this is the cost of living. The center has probably learned a lesson, and hopefully you have too, and you've done everything you can in your own house, job, etc. to protect people coming in from the snow and the rain from falling.
So, that's my answer. I don't know if it's yours or not -- that's your call. IAAL and I would not sue.
posted by Capri at 11:32 AM on February 6, 2014 [2 favorites]
I can give you my own personal answer, as the former board member of a small and trying-hard-to-make-it school: Don't sue. You'll hurt people who are trying really hard, even if their insurance ultimately pays, because their names will be on the law suit and they'll go through the whole pre-trial and trial period taking it very, very personally. They will lose sleep, they will grow to hate you, and you will grow to hate them because they will oppose everything you say -- that's what lawsuits do. They pit you against them, and it's painful and awful for everyone.
You will be forced to explain why they're negligent and uncaring. They will be forced to explain why your partner is clueless and clumsy and ultimately undeserving of compensation. This will not be simply a battle between two insurance companies. It will be a personal battle between you and them.
There will be important financial consequences to this lovely little school. Their insurance premiums will go up, and they may lose coverage, even if they prevail in court, because the cost of the lawsuit is so high. They will lose time and money responding to depositions and reading documents and meeting with their lawyers. They will spend energy and focus on your lawsuit, and not on the children in their care.
There will be major financial consequences to you, too. You will have to take time off work, and spend hours on this thing. You will spend money on exhibits and filing fees and experts. If you win, you probably won't be fully compensated anyway. And if you lose, you'll pay the daycare center's legal costs too.
I realize that it's painful to pay these medical costs, and that yes, the center almost certainly could have prevented the accident with more care. But yes, I think this is the cost of living. The center has probably learned a lesson, and hopefully you have too, and you've done everything you can in your own house, job, etc. to protect people coming in from the snow and the rain from falling.
So, that's my answer. I don't know if it's yours or not -- that's your call. IAAL and I would not sue.
posted by Capri at 11:32 AM on February 6, 2014 [2 favorites]
Response by poster: I don't think we're even considering suing at this point, if we ever truly were. We really do like these people, we're really not litigious by nature, and the whole thing is murky anyway.
The no fault settlement idea floated above was probably more akin to what we had considered pursuing, but now that we know that we have little to no influence on whether or not our insurance company tries to subrogate our claim to the school's insurance company, I don't think that appeals to us much either.
At this point, for the sake of being thorough and keeping options open, we will document our various expenses, lost time at work, etc. Not because we plan on contacting a lawyer to use that information, but because there's no harm in doing it, and should the situation spiral out of control, it'd be nice to have that stuff.
Our remaining question at this point would be, if the insurance company floated the option of seeking something above their expenses on our behalf, whether we'd agree to that. I'd still be flatly uninterested in "compensation," but as a working class family on a budget, we'd have to consider it, were there an opportunity to recoup some of the medical costs that are sure to pile up.
posted by DirtyOldTown at 11:53 AM on February 6, 2014
The no fault settlement idea floated above was probably more akin to what we had considered pursuing, but now that we know that we have little to no influence on whether or not our insurance company tries to subrogate our claim to the school's insurance company, I don't think that appeals to us much either.
At this point, for the sake of being thorough and keeping options open, we will document our various expenses, lost time at work, etc. Not because we plan on contacting a lawyer to use that information, but because there's no harm in doing it, and should the situation spiral out of control, it'd be nice to have that stuff.
Our remaining question at this point would be, if the insurance company floated the option of seeking something above their expenses on our behalf, whether we'd agree to that. I'd still be flatly uninterested in "compensation," but as a working class family on a budget, we'd have to consider it, were there an opportunity to recoup some of the medical costs that are sure to pile up.
posted by DirtyOldTown at 11:53 AM on February 6, 2014
BTW: Without trying to debate what's already been said, let me just add this:
You can (and should) consult with a lawyer just to figure out what the options are, even if you decide you're not going to sue. Simply getting advice from a lawyer is not going to lock you into filing a lawsuit. You can walk out of the lawyer's office anytime you want to. The school might not even know you talked to someone. There's basically no downside to this.
Furthermore, it's possible that a lawyer may be able to recover some of your costs without having to file a lawsuit. If we're not talking a huge amount of money, it's possible the school's insurance will settle immediately just so they don't have to incur their own legal costs.
posted by mikeand1 at 1:00 PM on February 6, 2014 [2 favorites]
You can (and should) consult with a lawyer just to figure out what the options are, even if you decide you're not going to sue. Simply getting advice from a lawyer is not going to lock you into filing a lawsuit. You can walk out of the lawyer's office anytime you want to. The school might not even know you talked to someone. There's basically no downside to this.
Furthermore, it's possible that a lawyer may be able to recover some of your costs without having to file a lawsuit. If we're not talking a huge amount of money, it's possible the school's insurance will settle immediately just so they don't have to incur their own legal costs.
posted by mikeand1 at 1:00 PM on February 6, 2014 [2 favorites]
There will be major financial consequences to you, too. You will have to take time off work, and spend hours on this thing. You will spend money on exhibits and filing fees and experts. If you win, you probably won't be fully compensated anyway. And if you lose, you'll pay the daycare center's legal costs too.
This is wrong.
Personal injury lawyers do not require plaintiffs to pay for experts and exhibits unless the case settles or there's a recovery at trial. If the attorney you consult expects this, thank them for their time and don't use them.
Secondly, you will not pay the other side's legal fees if you are in the US. The "American system" is that each side pays their own fees.
posted by jayder at 1:28 PM on February 6, 2014 [2 favorites]
This is wrong.
Personal injury lawyers do not require plaintiffs to pay for experts and exhibits unless the case settles or there's a recovery at trial. If the attorney you consult expects this, thank them for their time and don't use them.
Secondly, you will not pay the other side's legal fees if you are in the US. The "American system" is that each side pays their own fees.
posted by jayder at 1:28 PM on February 6, 2014 [2 favorites]
To support and add to what mikeand1 said, the way these things almost always pan out is that your attorney will initially send a letter to the preschool. He will not file suit. The preschool forwards the letter to their insurance carrier. The insurance carrier looks into the matter and, if they think you have a case, they make an offer.
The insurance carrier for the preschool would rather not go to trail if they think you have a good case. Nobody wants to go to trail, and mostly it does not come to that.
I am touched by capri's expression. I would not want to see the scenario he draws play out either. But speaking as someone with background in the liability insurance industry, that scenario is not the way these things typically go down, at least in my experience.
posted by elf27 at 1:33 PM on February 6, 2014 [2 favorites]
The insurance carrier for the preschool would rather not go to trail if they think you have a good case. Nobody wants to go to trail, and mostly it does not come to that.
I am touched by capri's expression. I would not want to see the scenario he draws play out either. But speaking as someone with background in the liability insurance industry, that scenario is not the way these things typically go down, at least in my experience.
posted by elf27 at 1:33 PM on February 6, 2014 [2 favorites]
1. Many people here said that your health insurance company will probably make a claim against them, but I doubt it. They can, but most of the time a health insurer will not try to assert a subrogated claim if the injured person does not assert a primary claim. If she does, however, then it will want its money repaid.
2. Virtually every commercial general liability policy includes "medical payments" coverage which is made just for this type of situation. It provides coverage only for out of pocket medical, and it often does not pay unless and until its insured, the school, asks or insists. Most importantly, it pays without requiring that fault be proven. The idea is that paying a small amount on a no-fault basis will often prevent a lawyer and a lawsuit for much more. The limits are often $5,000, sometimes higher.
posted by yclipse at 2:04 PM on February 6, 2014 [1 favorite]
2. Virtually every commercial general liability policy includes "medical payments" coverage which is made just for this type of situation. It provides coverage only for out of pocket medical, and it often does not pay unless and until its insured, the school, asks or insists. Most importantly, it pays without requiring that fault be proven. The idea is that paying a small amount on a no-fault basis will often prevent a lawyer and a lawsuit for much more. The limits are often $5,000, sometimes higher.
posted by yclipse at 2:04 PM on February 6, 2014 [1 favorite]
I sometimes handle insurance claims for a city, and I nth elf27. Most trip and falls are like this...yeah, maybe there should have been a matt or sign, and she probably shouldn't have been wearing heels. We deny a lot of these, but in a serious accident like this often make a good faith offer. We don't admit liability, and you agree not to sue later. We do this all the time, and for us it's no big deal. Talk to the school... be honest about your motivations, be nice. Most likely they'll send your receipts and the incident report to their insurance, who'll say yes or no. If they say no, no harm done.
This is likely to be a slow process.
posted by jrobin276 at 3:59 PM on February 6, 2014
This is likely to be a slow process.
posted by jrobin276 at 3:59 PM on February 6, 2014
I sued a friend for a PI. I broke my back on his boat. I only wanted his insurance to cover my 10% copay. The copay total was $2300. I thought I could just call them and be direct and it would all be over. His insurance would not return my phone calls and sent him over to my house to get a copy of my medical insurance coverage. His agent was such an ass that I retained a lawyer and told my friend why I was going to be suing him. He understood.
It was eighteen months of hell. His insurance agent had a problem with my claim and so did their lawyer. They investigated me back to High School. Made all kinds accusations about my character. But I was pissed. I would not let it go. My lawyer took care of everything. He specifically dealt with marine insurance issue's so this was a small case for him but he was a family friend. I won my case at arbitration and it cost his insurance company 100 times what they would have had to payout if they had just stepped up to the plate in the first place.
I would never go through this voluntarily again. My 2-day, 10 hour deposition was brutal. My friend is still my friend because we talked about what I was doing. Even though I could sue beyond the limits of his policy I made it clear to my lawyer that I would not be doing that. It was about his insurance company not him.
I would talk with the school and a lawyer. Find out what you can and then make your decision on how to proceed.
posted by cairnoflore at 4:12 PM on February 6, 2014
It was eighteen months of hell. His insurance agent had a problem with my claim and so did their lawyer. They investigated me back to High School. Made all kinds accusations about my character. But I was pissed. I would not let it go. My lawyer took care of everything. He specifically dealt with marine insurance issue's so this was a small case for him but he was a family friend. I won my case at arbitration and it cost his insurance company 100 times what they would have had to payout if they had just stepped up to the plate in the first place.
I would never go through this voluntarily again. My 2-day, 10 hour deposition was brutal. My friend is still my friend because we talked about what I was doing. Even though I could sue beyond the limits of his policy I made it clear to my lawyer that I would not be doing that. It was about his insurance company not him.
I would talk with the school and a lawyer. Find out what you can and then make your decision on how to proceed.
posted by cairnoflore at 4:12 PM on February 6, 2014
Everyone thinks you should call a lawyer, but this is also a question of personal ethics.
My personal ethics dictate that I would never proceed with any legal claim against this small school whose director you respect. (I might have a very firm conversation requesting safer flooring and making clear that you mean that in a Very Serious Way.)
This really comes down to your own inner voice and your partner's own inner voice, that no one on metafilter, and no lawyer, can represent better than you and your partner can.
posted by latkes at 6:19 PM on February 6, 2014
My personal ethics dictate that I would never proceed with any legal claim against this small school whose director you respect. (I might have a very firm conversation requesting safer flooring and making clear that you mean that in a Very Serious Way.)
This really comes down to your own inner voice and your partner's own inner voice, that no one on metafilter, and no lawyer, can represent better than you and your partner can.
posted by latkes at 6:19 PM on February 6, 2014
I second what latkes said, and I would add that in the Western world we tend to think a litigious system or approach is the only system or approach, but it's not. For example, in Japan it is considered poor etiquette to "lawyer up". You have a choice whether you want to participate in a litigious process or not, just like someone who is getting a divorce can choose whether to "lawyer up" or use a collaborative process such as a mediator. That's why in my first response I said why don't you just first talk to the school owner about the situation? That's why human beings have mouths, ears, and brains. We don't always need to rely on lawyers to try to solve problems.
posted by Dansaman at 9:33 AM on February 7, 2014
posted by Dansaman at 9:33 AM on February 7, 2014
Response by poster: In the end, circumstances beyond our control effectively guided our hand on this. Our insurance company sent us a letter requesting the specifics of the injury, if it happened on a person or company's property and asking that we get their insurance information and pass it on. In gathering this info, it turns out that the school has the type of insurance mentioned above that covers out of pocket expenses for injuries on its property. We are assured this is standard and should not hurt the school. Hopefully, our insurance company isn't going to give them too much grief, but that as well, is beyond our control.
posted by DirtyOldTown at 1:41 PM on March 14, 2014
posted by DirtyOldTown at 1:41 PM on March 14, 2014
This thread is closed to new comments.
posted by DirtyOldTown at 6:56 AM on February 6, 2014