If you've reached a stalemate with the insurance company, and settlement is no longer an option, you have to decide whether to file a lawsuit or walk away with nothing. There are several reasons your personal injury claim may not settle:
If your injuries are relatively minor and you don't have ton of medical bills, you may be able to file a lawsuit yourself in small claims court. If your injuries are serious, however, you'll likely need an attorney to file suit in a higher court.
Every state has numerous small claims courts. They were created by each state's legislature to relieve the serious backlog of lawsuits that continued to build up in their state and county courts.
Before small claims courts were created, people without attorneys (referred to as "Pro Se" plaintiffs) sometimes had to wait months, even years to have their cases heard. When they finally got to court, most were overwhelmed by rules of evidence, motions, legal briefs, and other legalities from opposing attorneys. As a result, many of their cases were dismissed.
Small claims courts gave people the opportunity to present their grievances before a judge (and a jury in some situations) and have their cases heard within in a matter of weeks. The rules were substantially relaxed, so people didn't have to understand professional legal maneuvers like motions and objections.
Today, small claims courts hear many different types of cases, including minor personal injury disputes. If you're thinking about filing a small claims action, your first consideration is the amount you'll be suing for.
Small claims courts have jurisdictional limits. This means there's a cap on the amount you can sue for. Some states' limits are quite low, like Kentucky at $1,500, while others are very high, like Tennessee's cap at $25,000. Most states fall somewhere in between.
A verdict in small claims court is just as enforceable as one from your state's highest court. Depending on local laws, if the defendant fails to pay, you may be able to:
States have various rules regarding having a judge or jury hear small claims cases. Some permit either the plaintiff or the defendant to request a jury, usually made up of six people chosen from the voter rolls. Jury trials are more complicated and lengthy than "bench trials" (where only a judge hears the case).
Whether you should request a jury or not depends on the facts of your case. If liability is clear and the facts are entirely in your favor, choosing a judge is probably a good idea. Judges only consider the facts of the case, and tend to ignore emotional testimony or other "soft" arguments.
If your facts aren't as clear, you may have a better chance with a jury. Juries often render verdicts based on what they believe is fair, sometimes in spite of the facts.
If you've been trying to get a settlement from an adjuster, but she's denied your claim, or refuses to offer a fair settlement amount, sometimes just mentioning a lawsuit is all you need to prompt a fair offer. Suggesting a lawsuit isn't a magic button, however. It only succeeds when the adjuster thinks the facts lean in your favor.
The adjuster will do a cost analysis of your claim. If the amount you're asking for is close to what it will cost her company to send an attorney to court, there's a good chance she'll settle your claim, but not necessarily.
If the adjuster is convinced her insured had absolutely no liability for your injuries, she may deny your claim outright. If she's confident a judge or jury would never render a decision close to the amount you're asking for, she won't budge from her offer. It really depends on the insurance company, and the adjuster's evaluation of liability and damages.
If you've reached an impasse with the adjuster, you have nothing to lose by letting her know you're considering a small claims lawsuit. However, simply threatening a lawsuit out of anger or frustration won't work. Adjusters aren't intimidated by baseless threats from non-lawyers.
Instead, calmly tell the adjuster you've weighed all the facts of the claim and you believe a judge or jury might see your case differently. If the adjuster realizes you've thought the issue through and are serious about filing a lawsuit, she'll react more favorably.
There are advantages and disadvantages to any legal action. The reality is, the facts of your case may not be enough to guarantee a successful outcome. When deciding whether or not to file a lawsuit, consider the following factors that can help or hurt your case.
Advantages of filing a small claims lawsuit:
Disadvantages of filing a small claims lawsuit:
If you have a choice between accepting a settlement offer that isn't quite what you were hoping for, and refusing that offer to file a small claims lawsuit, consider the following:
Take a very close look at any settlement offer made by the insurance company. Consider the amount, and the pros and cons of following through with a lawsuit. If you've studied the facts of your case, weighed the pros and cons, and decided to proceed to trial, then you should have the confidence to win.
These jurisdictional limits are current as of 2014. Check your updated state laws to confirm.
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