In this podcast episode, Josh and Aaron answer the highly sought-after question: What is my car accident case worth? Listen in to learn about the multiple factors that go into determining car accident settlement values. Listen here or read the transcript below. FVF’s Summary Judgment podcast is available wherever you listen to podcasts including Apple Podcasts, Spotify, iHeart Radio, and more.
Introduction: Thank you for tuning into Summary Judgement where Austin Personal Injury attorneys, Josh Fogelman and Aaron Von Flatern of FVF Law, discuss the ins, outs, and in-betweens of personal injury cases.
Aaron Von Flatern: You are indeed listening to Summary Judgement, this is Aaron Von Flatern and I’m here with my co-founder and law partner, Josh Fogelman. And today we’re talking about one of my favorite topics, how much is my car accident settlement worth? Josh, how often do you get that question you think?
Josh Fogelman: All the time and we know people are searching for it all over the internet.
Aaron Von Flatern: Yeah, one of the more common enquiries and a lot of times people want to know before, way too early, sometimes at the car accident scene itself, I think you already know this is going to be a very thorough analysis and there’s a lot of factors that go into it. Josh, why don’t you just kind of start us off with an overview of the law and help people understand why it’s a more complex question than they might think.
Josh Fogelman: Yeah, and one thing to note, too, is there’s a lot of tools out there that people find on different websites that are settlement calculators and a lot of different formulas that might be applied, but I would warn people to be cautious about relying on those before you really have an understanding about what’s going on and basically, the way that the law was designed is we can’t undo time. We can’t rewind the clock and undo an accident that caused somebody harm. And so what we can do and what our society has decided is appropriate to help remedy the wrongs that were caused is we allow people who have sustained harms and losses because of the carelessness of somebody else to seek monetary compensation for whatever those harms and losses are. So it’s under sort of that context that you should understand how a personal injury case works so that you can figure out how you’re going to secure the best resolution for yourself as you possibly can.
Aaron Von Flatern: Right, so let’s talk about some of the factors. What are the main factors that people should consider when trying to figure out what their case is worth?
Josh Fogelman: Yeah, and again, understand that your personal injury case and how much you should expect to recover from your personal injury case is all about what your personal injury is and while that seems really obvious, a lot of people fail to do the work that’s necessary to really understand what’s going on with them. So there are really three primary factors that we should consider when we’re trying to evaluate and advise somebody about how to proceed on their personal injury case, and that is the first factor is how badly were you hurt? This takes time. This is not something in most situations where you’re going to know the answer to that question, the hours, days, weeks, or sometimes even months following the car wreck. Many injury cases have long-term lasting effects, even if they’re minor. I mean obviously, it can range… There are some cases where you know that it’s catastrophic, you know that it’s serious, but many injuries, at first glance, don’t appear like they’re necessarily going to be life-changing.
But the only way to know that for sure, of course, is to be proactive with getting medical care and doing the work to get yourself as recovered as you possibly can, so that you can have an understanding about whether you’re going to be one of those people who’s going to suffer from long-term consequences as a result of the injury, and again this just takes time, it takes patience. But unfortunately, it takes a lot of work. I often tell clients, in this first factor, you’re stuck with a job that you didn’t ask for. And once you have an understanding what those injuries are, just physically – what’s going on inside your body? And what does the future look like for you? We can start to break down the two primary categories of damages that we look at when we are assessing the value of a person’s case. The first category of damages is what we call your Economic Losses.
And those are really things that you could account for on a spreadsheet, things like medical expenses, lost earnings. Some people are hurt badly enough where they can’t do household chores and they have to hire somebody to help, those are all your economic losses. Your non-economic losses, on the other hand, are these kind of intangible harms and losses that are more difficult to calculate, things like physical impairment, pain and suffering, it’s basically the decrease in your quality of life. So only once you really have a thorough understanding of what those losses are, both for the past and likely into the future, can you really have an understanding of what you should be asking for to recover.
Aaron Von Flatern: Now Josh, if somebody says, “Alright, look, I’ve got the worst possible kind of injury, I’ve got lost earnings like crazy, I got medical bills beyond belief,” do they automatically have a huge personal injury case?
Josh Fogelman: It’s a great question and it leads me directly into the second factor, which is, are there enough resources? Someone could have sustained the most devastating or catastrophic of losses that no amount of money could reasonably compensate them for, but it doesn’t really matter if the person who harmed them doesn’t have the money or the financial resources to pay for it. So oftentimes, what we’re looking for when we’re evaluating personal injury cases are, what does the insurance situation look like? And that’s not true just for the driver who caused the car wreck but also your own insurance policy. In Texas, the law only requires you to carry $30,000 worth of insurance to pay for harm that you do to other people for bodily injury, and many drivers only carry that minimum amount of insurance and many drivers carry no insurance, so we have to understand what the insurance situation looks like so that we can evaluate what kind of damage model we can really build and what we can expect to recover.
But in addition to the other person’s insurance, many drivers don’t understand their own insurance coverage and we talk all the time in our normal conversations and talk to clients about underinsured motorist coverage. It’s a hot topic inside this law firm. We’re handling these things all the time, and I’m just shocked that many people don’t even know what it is because they just trust their insurance agent to help them choose the right coverage or they’re just buying coverage online and just want to check boxes and get on the road. But there is a lot of insurance that can be purchased to protect yourself from being harmed by somebody else who doesn’t have enough insurance to pay for the damage done. So we have to understand that all of the insurance proceeds that are available, because quite frankly, most people who are out there on our roads don’t have huge bank accounts that we can go after or lots of real estate that we can go and collect from in the event that we take a judgement against them.
Aaron Von Flatern: Yeah, I don’t think people realize how much is exempt in, for example, Texas, you can get a judgement against somebody and it can be fairly large and they can actually have a lot of cash, and they can still be exempt from having to pay that judgement due to our laws here. And so if there’s a wall, there’s only so much insurance and the defendant only has so much assets. What are some other creative things that lawyers can do, for example, to try to find some “pockets” to compensate when someone has been badly hurt?
Josh Fogelman: That’s a good question, Aaron, and we oftentimes have to get creative because we don’t want to advise a client to accept a settlement when we don’t have a full understanding of what resources are available to collect for them. Many people are out there driving somebody else’s car, which can trigger coverage under multiple different insurance policies. If our client was a passenger in somebody else’s car or in a rideshare or in a work vehicle, something like that, we can try to identify other insurance policies that might provide underinsured motorist coverage for them. One of the big ones that we’re always looking for, of course, is to determine whether or not the person who caused the crash might have been on the job at the time. In these days, it’s really hard to tell. So it’s important to make sure that you check those boxes before you start dishing out advice to someone and telling them, “Well, you know, your case might be worth a million dollars.” But there’s only $30,000 to go after so you’re just going to have to cut your losses.
Aaron Von Flatern: Yeah, I always say that one of the reasons to hire a lawyer is for peace of mind. If you got a case that’s limited, it’s in a box and it just doesn’t seem that anyone can improve upon it, at a minimum, what I know we can do is try to secure an affidavit from the defendant, the would-be defendant to the effect that they weren’t drinking at a bar that we could potentially sue. That they weren’t working for somebody, that they don’t live in a household where they’re related to somebody by blood or marriage that has another insurance policy, that they don’t have an oil well or land or a yacht or some asset that could cover judgement, that affidavit is peace of mind because you know later if those all turn out to be lies or any of those turn out to be lies we can unwind that settlement and have a fraud case at that point, which is a really good thing to have in your back pocket when you have to explain to somebody, “Okay, this is all that’s available for this really catastrophic injury.”
So that’s an example of where hiring a lawyer may not get you any more money, but they can help you sleep at night sometimes. And then one thing we didn’t talk much about was fault. I think if someone’s calling us, it’s assumed that they weren’t at fault but the insurance companies don’t always see it that way, do they?
Josh Fogelman: No, no, they don’t. And that’s oftentimes the biggest fight that we have and that’s the third factor. So the first factor is how bad are the damages? The second factor is are there sufficient resources that we can recover against? And the third factor is well, how clear is liability? You can only recover money from a person if you can prove they’re legally liable to pay you for the damages that they have caused. And in Texas that requires you to prove that the other person was negligent, that they were careless, but conversely, they can also point the finger back at you and say that you were also negligent or careless and that your negligence or carelessness contributed to the crash. And we have a kind of a weird contributory negligence scheme here in Texas where if it turns out… Let’s just say that the case makes it all the way to a jury trial. The jury is actually asked to assign a percentage of responsibility to the different people involved in the lawsuit, so that you can figure out who calls or contributed to the accident as a whole. And if the jury assigned you some percentage of responsibility than your award or what you can recover will actually be reduced by that percentage. And if you’re found to be more than 50% at fault, you’re completely barred from recovery, you get nothing.
Aaron Von Flatern: That’s another example where a lawyer can be critical to a case that you might think it’s a slam dunk, but when you have a trip and fall, or say a slip and fall, or say it’s a left turn case where someone’s turning left in an intersection, and those are tricky, and they require advocacy and every single percentage point that you succeed on is more money in your pocket, and it can also be the difference between completely losing the case when you get to that 50.01% threshold that you just described, so yeah, fault is one that we sometimes overlook because we assume that if they’re calling us, they’re not at fault, but if someone’s asking what their case is worth, they really have to check that box as well, right?
Josh Fogelman: That’s right. And you know, Aaron, one of the things that I’ve found in doing this for a decade now, a little more than a decade, a lot of people who get hurt are optimists. They want to believe that they’re not really hurt, they want to believe that an insurance company is going to do the right thing and help guide them through the complexities of the insurance claim process, and that they don’t think necessarily that they need to call a lawyer or need to hire a personal injury lawyer. Can you talk about maybe some of the pitfalls that people can find themselves in if they’re not careful and how to avoid those?
Aaron Von Flatern: Man, where to start. This is such a great topic. I feel like I can talk forever on it. Insurance companies have a track record of self-interest, and I used to work for an insurance company. I was an adjuster for eight years and a lot of clients, potential clients call us and they say, “Well, the other person had such and such insurance company, and I’m feeling pretty good because they’re such a good insurance company,” and maybe it’s because of their advertisements, maybe it’s because of some family member had a good experience with that particular carrier but almost every single time I can tell you that none of that marketing matters, whether it’s a good neighbor or good hands or whatever the slogan is, what it comes down to is these are publicly traded companies who protect profits and that’s it. And the adjusters are human beings. They don’t mean to be evil or anything like that, but I always say that good people are only as good as their training. When the training is coming from a corporation, it’s there to make profits, so what happens is they’re going to let you walk into a bunch of traps.
They’re not going to actively visit evil upon you, they’re just going to let you walk into these traps, and one of the main ones is a gap in your treatment, so you go to the ER or maybe you failed to go to the ER for a few weeks, they’re going to blame you for that. If you don’t follow up in the three days that they told you to at the ER, instantly, your case is dubious to them. They don’t know if you fell off a ladder later or what. All they see is there’s a gap in your treatment, so we’re only going to pay for the first three days of your case. That’s a common one and it can sometimes be really deflating in a nagging injury because you get somebody who’s plateaued in their injury. They just can’t get any better and maybe they’re not getting to the right diagnostics, sometimes they give up, and sometimes they’ll go for months without treatment and then it’ll get too bad and they’re losing sleep and they’ll go back to their provider that maybe wasn’t getting them the diagnostics in the first place.
And it helps to have some guidance from a lawyer that can keep you on track. And one of the biggest things I see is pursuing the diagnostics, right? If you settle your case without knowing what’s wrong with you, you may have left a lot on the table, we find that it’s never appropriate to settle a case where you haven’t gotten someone to a high level specialists where you don’t have imaging that shows you parts of the body that can’t be seen on an x-ray where you don’t have input from someone about what future care is going to cost. Signing on the dotted line too quickly, I think is probably the biggest problem. Relying on insurance companies to tell you what your case is worth, this happens all the time. They seem like the experts and they do this all day long. They have words, vocabulary surrounding their evaluations, “Well, you have this much in specials,” they call it, or they give you the different factors of liability. It sounds like they know what they’re talking about, but I promise you they’re just really using a bunch of rules of thumb that have been passed down from other adjusters, and a lot of times their evaluations have no relation to what juries actually feel. Juries don’t care as much about treatment caps. They understand people are human. But adjusters will sometimes convince you that there’s a major problem with your case, for example. This all boils down to settling too quickly. And that’s kind of my bottom line — give us a call and get informed.
Josh Fogelman: What about a situation where the insurance company reaches out and says, “Hey, you know, we’re going to go ahead and pay you a few thousand dollars for the inconvenience and we’ll pay your medical bills for the next few weeks?” What do you feel about those types of offers?
Aaron Von Flatern: Man, it’s a diabolical approach. I have to respect their creativity because on the one hand, they’re coming at you with money. Money is overwhelmingly persuasive when you have kids to feed and when you have a job that you can’t work. I mean you need that cash sometimes for groceries and I get it. And also, because they’re coming at you with money, they look reasonable, so they get a halo effect sort of, that they’re coming to you and they seem like the reasonable folks who are trying to do the right thing, and in the meantime, what’s really happening is you don’t have those diagnostics, you don’t know if this thing that’s bugging you is going to turn into a nagging injury that you’re still going to be feeling when you’re 80 years old. You don’t know how much your future care is going to cost you, and they’re going to put a budget on that. A lot of times they’ll say, “Well, here’s $1000 for your inconvenience, and then we’ll pay for up to $3000 of future medical care.” How does that help you if you need surgery, right? And so it’s another example of when in doubt, give us a shout, right?
It’s a terrible tagline but call us. We have built an entire law firm on giving out as much free information as people can possibly stand in a very low, no-pressure environment. If it’s a good fit for us to work on your case, great. If not, we are just really glad to get someone down the road and better than we found them. So anyway, Josh, this has been another episode of Summary Judgment. It was fun doing this with you. Any last words?
Josh Fogelman: Yeah, just to kind of sum things up, trying to figure out how much your car accident settlement is worth is a very complicated endeavor. It’s not something that you should trust random tools on the internet to tell you. You need to get informed. You need to figure out what’s going on with you. You need to figure out what the long-term consequences are. A lot of work to be done, a lot of information to be gathered, and we’re happy to help any way that we can. So we hope that you’ve found this helpful. We hope that if you have any further questions, you won’t hesitate to give us a call.