Part 2: Tips for Negotiating Pain and Suffering...
This page gives negotiation tactics for obtaining pain and suffering compensation in slip and fall cases. This does not include "hard cost" quantifiable items such as ambulance rides, emergency room and doctors' bills, or prescription costs.
More on How to Negotiate a Settlement:
Part 1: Tips for Negotiating "Hard Costs" when Settling Personal Injury Claims
Part 3: More Negotiation Techniques for Slip and Falls (Sample Dialogue with Adjuster)
Pain and suffering payments are designed to compensate you for the non-quantifiable pain and suffering you endured as a direct result of your injuries. (The words "pain and suffering" and "mental anguish" are normally interchangeable.)
Slip and fall claims are uniquely difficult to negotiate. One of the maxims you may hear is that pain and suffering equals one to five times "special damages" (also known as Hard Costs). Although that's been the standard for at least thirty years, unless you know the negotiation tactics to convince the adjuster to compensate you, you may not progress much further than payment for hard costs.
There are no laws which compel an insurance adjuster to pay for pain and suffering. The adjuster has to weigh the likelihood that you'll file a lawsuit if he doesn't pay and how much a jury would award if the case goes to trail and you win. The adjuster also has to consider the increased expense of taking the case to trial.
A critical negotiation tactic is to convince the adjuster why he's better off paying you a pain and suffering settlement and that the financial payout could be much worse if your case goes to trial.
Pain and suffering is impossible to exactly quantify. The adjuster may believe you suffered pain and anguish as a direct result of his insured's actions, but he may not agree with the amount of money you think should be paid as compensation for that suffering.
There are no reference guides listing amounts to be paid for pain and suffering. Coming to an agreement with a claims adjuster on the amount is the most difficult aspect of settlement negotiations. The adjuster usually has the upper hand - he has the money and you don't. He's not going to pay any amount for pain and suffering unless you convince him to.
Read through the following negotiation tactics and strategies to better understand the inner workings of the insurance claims process. You can apply these tips in your own claims negotiations. They're well-founded and the result of years of application by personal injury attorneys.
Don't tell him anything which could be construed as a final demand. Once you do, the negotiation will end. It will end because it has ceased to be a negotiation. You have effectively told the adjuster there is only one amount you will accept and it has to be the one you just gave him.
As soon as the adjuster hears this he has two choices, either pay what you're demanding, or close his file and send the claim up to the insurance company's legal department. Ultimatums are almost always sent to the legal department.
Make copies of all medical bills related to your injuries. These documents include, but are not limited to: ambulance, hospital, therapy and pharmacy bills. Have these readily accessible during the negotiation.
Due to patient-physician privilege and HIPAA laws (Health Insurance Portability and Accountability Act), your medical providers will require an Authorization for Release of Information before giving you copies of confidential records.
Get copies of your entire hospital chart as it tracks all treatment you received while in the hospital. Referring to entries made on your chart by doctors and nurses will help you explain or defend any added costs of additional tests, hospital stays, or therapy related to your injuries.
Having any of the documents certified is unnecessary. The records are to be used for negotiations and not in trial, therefore it would be a waste of money to have them certified. (Certified copies may be necessary if the claim went to trial, but often they are inadmissible as hearsay.)
If someone slips and falls inside a major retail store during normal business hours a summary is usually made by security or management. This is often known as an "Incident Report". The summary should include a description of events at (or close to) the time of the fall. Unless the person making the summary is dishonest, the likely cause of the fall will be noted. The summary should also include statements of any witnesses.
If you suffered your injuries in a smaller "Mom and Pop" store, there may not be a written summary. In that case, be sure to get the name and address of their insurance company. If you were hurt seriously enough to be taken by ambulance to the hospital you may not have had an opportunity to get the insurance company's name and address. Be sure to have someone follow up as soon as possible after the fall.
Many smaller stores won't want to report an injury to their insurance company for fear of insurance policy cancellation or an increase in premiums. They have a tendency to "wait and see," hoping you will disappear and never come to them looking for injury compensation. If they refuse to cooperate and persist withholding insurance company information the next step will be to notify them in writing (by certified mail).
Clearly state your intent to retain an attorney and file a lawsuit if they don't:
a) Give you the insurance company information, or
b) Agree to settle the case themselves, out-of-pocket.
Some smaller stores don't carry liability insurance for such things as slip and fall injuries. In that case, and if they refuse to compensate you for your injuries, you may have to sue them in small claims court. If your hard costs and pain and suffering exceed the jurisdictional limits of small claims court (limits are usually about $5,000), then you will have to retain an attorney and sue them in courts with higher jurisdiction.
If you do go to a higher court it has power to award you full damages for hard costs, mental anguish, and even the costs of filing the suit. The amounts of verdicts in these courts can be forty or fifty thousand dollars, and sometimes even higher. To litigate in these higher courts you really will need an attorney. The environment is far removed from small claims courts (where the atmosphere has a sense of informality).
Unlike governmental entities which will release documents voluntarily or through the Public Records and Information Act, private companies do not have to give you copies of any documents. Technically the only way to get a hold of them is through the discovery rules once a lawsuit is filed.
If the store in which you were injured won't give you a copy of witness statements and the actual report, don't worry. During negotiations with the adjuster he will send you copies. It would all be in the spirit of compromise and settlement.
The summary should include witness statements. Often the best witnesses are those who make what are called "Statements Against Interests." In this claim they would be employees of the store where the fall took place.
The theory basically says that if a person makes a statement against himself, it has a higher likelihood of being honest. In this case the witnesses are part of the company accused of negligence causing the fall. Their statements are an important part of negotiations.
(In the remote possibility the case has to be litigated, those statements, normally inadmissible in court as hearsay, would be admitted as exceptions to the hearsay rule. But that's legal stuff your lawyer would worry about.)
Once you obtain the summary report and witness statements, either through the company or the adjuster, try to contact the witnesses. Their statements were taken at or near the time of the fall.
See if they will talk about the store. Ask them about the substance (olive oil from a broken bottle) which precipitated the fall. Did they know there was a broken bottle of olive oil in aisle three? Did someone tell the manager about it? Did management know about it and do nothing? Try to get as much information as possible. If they will let you record their statements do it. These statements can be used to help you in the negotiations.
Although the word "wages" seems a hundred years old, we all know it means income. For our purposes it's the income lost as a result of injuries you sustained when you fell. The adjuster will need to verify your lost wages.
To expedite the process ask your employer to verify in writing any income you lost. Do not have your employer scribble it on a legal pad, notepad or on the back of a napkin (yes, this actually happened).
The form and substance of the verification is important and it should be typed on company letterhead. If you are not employed by a company which uses letterhead, the verification can be on a company invoice or any other document used by your employer as a form of identifying itself to a customer.
Below is an example of an Income Verification. Take note of the proper way information is set out...
Wilkerson Computer Services
January 2nd, 2011
My name is Thomas Gunter. I am Susan Silverstein's supervisor. Susan has worked here at Wilkerson Computer Services since October 1999.
She doesn't work by the hour. She is paid a salary each week. At the time she was hurt when she slipped and fell on November 1st, 2010, her weekly gross salary was $700.
From the day she slipped and fell until the time she came back to work she missed 6 weeks, totalling $4,200.
Create a summary of all records described above and index them if you can. The claims adjuster will be organized. He has been trained to do this job and deals with dozens of claims at a time. Most claims adjusters today follow a company-specific program designed especially for their company. To be an effective negotiator you need to be able to move from one subject to another seamlessly, and without skipping a beat.
As you are creating your index, study and read each document. In its own way each document is part of the entire claim. Like a large puzzle the claim will not be completed until you've put together the smallest pieces. Once you do that you will be ready and able to negotiate a reasonable settlement with the insurance company's claims adjuster.
After you've completed the preparation of your claim you must persuade the adjuster to pay you a substantial amount for the pain and suffering you endured.
Rather than lecture you on the most effective ways to persuade an adjuster, we've set out an example dialogue between an insurance claims adjuster and an injured party. The dialogue presumes you've followed all the above steps regarding the organization and preparation of your claim.
For more tips and strategies on negotiating slip and fall cases, read this page about settling personal injury claims.
Also be sure to review the sample dialogue with a claims adjuster. It's a real world example of how slip and fall negotiations work.
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