Important Factors Affecting Payouts for Bodily Injury Claims

How much are your injuries worth? Learn factors that boost the value of bodily injury claims, and what the insurance company will use against you.

When another person’s negligence causes you physical harm, you expect the at-fault party to compensate you for your injuries. But how do you get compensation? What’s your claim worth?

In most personal injury situations, compensation is paid by the at-fault person’s insurance company.

Don’t rely on an insurance adjuster to decide what’s fair compensation for your injuries. Adjusters are trained to protect the insurance company’s profit, not your financial interests.

Here’s where we unpack the basics of calculating personal injury claims, the factors that affect your final payout, and what you can do to protect your interests.

Calculating Bodily Injury Claims

Figuring out the general value of your bodily injury claim starts with adding up your hard costs, called “special damages” in insurance lingo.

Special damages, or “specials” include:

  • Medical or chiropractic bills
  • Therapy or treatment bills
  • Out-of-pocket expenses related to the injury
  • Cost of replacement services, like lawn care
  • Lost income

Adding up your special damages is pretty easy because you will have bills and receipts. Just make sure you are adding up the full cost of your medical and pharmacy costs, even when some or all of it was covered by health care coverage.

Figuring out “general damages” like pain, suffering, and emotional distress can be a little trickier. There is no objective measurement for the injury’s impact on your life. The adjuster won’t just take your word for it.

If you’ve fully recovered from your injury, and have evidence of your pain and suffering, you can add one or two times the total of your special damages to account for your pain and suffering.

The total of your special and general damages is a good estimate of your bodily injury claim value.

Pain and suffering for severe, potentially disabling injuries is calculated at a much higher rate. You won’t be able to get a fair amount of compensation on your own.

If you’ve suffered severe or permanent injuries, talk to a personal injury attorney immediately to protect your interests.

Reasonable and Necessary Medical Costs

Higher medical costs usually lead to higher injury settlements if the medical costs make sense. You can’t assume the claims adjuster will simply agree with the amount of medical and chiropractic bills you submit for reimbursement.

Insurance companies are only obligated to pay for “reasonable and necessary” injury treatment bills. The adjuster knows the medical standards for treating whiplash and other soft tissue injuries.

Beware of “accident doctors” who run repeated tests or order questionable therapy, just to run up your medical bills for the insurance company. The insurance company can legally refuse to pay excessive bills, and you’ll be on the hook for the balance due.

Adjusters are always on the lookout for exaggerated injury claims, and won’t hesitate to send you to one of their doctors for an independent medical exam.

Where the Accident Happened

Where your accident occurred can have a big impact on the amount of compensation you receive. Insurance adjusters take “venue” into account when they decide how much to pay for settlements.

Venue is the location where your injury claim will go to trial if you file a lawsuit. Some venues are known to be more favorable to injury victims than to big insurance companies.

The adjuster is likely to offer more money to settle your claim, just to keep you from filing a lawsuit in a venue that tends to award big verdicts for bodily injury cases.

Attorneys often research jury verdicts in previous cases with similar fact patterns. By reviewing how much compensation was awarded in those cases, attorneys can get a good idea of what a personal injury case might get if it went to trial.

There are no guarantees with a trial, but venue research does offer a yardstick for case values.

How Liability Affects Compensation

If you’re injured in a car accident in a no-fault insurance state, you won’t have to prove who caused the accident for most claims.  You will negotiate with your own insurance company to settle your injury claim under your Personal Injury Protection (PIP) coverage.

For claims against the other person’s insurance company, you will bear the burden of proof to show their insured was liable, meaning responsible for your injuries.

Unless the insurance company accepts liability for their insured, your claim will be denied.

To prove liability, you’ll need to show their insured:

  1. Had a duty of care to avoid causing harm to others
  2. Did something wrong, or failed to do what any reasonable person would do under the circumstances, making them negligent
  3. Directly caused your injuries through their negligence

Shared Liability Can Kill Your Claim

You may be convinced the other party was completely at fault for your injuries. However, the adjuster will always look for ways to put some of the blame on you.

Insurance companies can deny or reduce your bodily injury claim if you share responsibility for your injuries.

Contributory Fault

In Alabama, Maryland, North Carolina, Virginia, and the District of Columbia, the insurance company can use the pure contributory negligence rule to flatly deny your claim if you share as little as one percent of the blame for your injuries.

Comparative Fault

In states with pure comparative fault rules, you can seek bodily injury compensation from the other party, even when you are mostly to blame.

Most states use modified comparative fault rules, meaning the insurance company would have to prove you were equally to blame (50% rule) or more to blame (51% rule) than their insured before they can deny your injury claim.

Example: Settlement Offer Reduced for Comparative Fault

Jim was stopped at a red light when his car was struck from behind. He was injured in the collision and made a settlement demand of $10,000 to the other driver’s insurance company.

Normally, a driver who rear-ends the car in front would be 100 percent liable. But in this case, Jim’s brake lights weren’t working when he was hit. The other driver claimed they didn’t see him until the last minute.

The adjuster argued decided Jim was 20 percent at fault for the accident, and her insured was 80 percent at fault.

Under comparative fault rules, Jim’s claim value is reduced according to his share of the blame. Jim was offered $8,000 to settle his claim, representing a 20 percent reduction to his demand.

You don’t have to settle for the insurance adjuster’s version of who is to blame. You can continue to negotiate your injury settlement with a counter-offer, along with your reasons why the adjuster’s division of blame isn’t correct.

At any point in the negotiations, you have the right to consult an attorney. Sometimes a letter from your attorney is all it takes to convince the adjuster to make a fair settlement offer.

Strong Evidence Boosts Claim Value

The final payout you get from the insurance company will be directly affected by the evidence you collect to support your claim.

You or your attorney will use evidence to prove:

  1. The insured party was at fault for your injuries
  2. The severity of your injuries
  3. The scope of your pain and suffering

The better your evidence, the more injury compensation you’re likely to win.

Valuable claim evidence includes:

Bodily Injury Insurance Limits

Most bodily injury claims are paid by auto insurance or homeowner’s insurance policies that have limits of coverage.

Coverage limits are the maximum amount the insurance company will pay for a qualified claim.

If you are severely injured and the at-fault person had low bodily injury coverage limits, the insurance company may hand over the limits as soon as liability is clear. For example, when a drunk driver runs off the road and hits a pedestrian.

If you’re hurt in someone’s home or yard, or their dog bites you, they may have homeowner’s insurance that includes med-pay or liability coverage that will pay for your injuries.

Auto insurance coverage for bodily injury claims may be paid under:

  • Bodily Injury Liability Coverage on the at-fault driver’s policy
  • Personal Injury Protection (PIP) coverage on your policy for you and your passengers
  • Uninsured or Underinsured Motorist Coverage from your policy if the at-fault driver had no or insufficient insurance

Each state determines the minimum amount of auto coverage drivers must carry. Your injury compensation amount may be affected by the limits of available insurance.

Auto policies generally have two limits for bodily injury coverage: A per-person limit and a per accident limit, such as $50,000/$100,000.

The per-person limit applies to each person injured in an accident. If the person who hit you has a per-person limit of $50,000, the most you can get from their insurance company for your injuries and pain and suffering is $50,000.

The per-accident limit applies when more than one person is hurt in the same accident. If the per-accident limit is $100,000, and three people are injured, the $100,000 is the only amount available for their combined damages, up to the per-person limit for each person injured.

How Multiple Victim Accidents Affect Your Settlement

When multiple vehicles are involved in an accident, determining who’s liable for your injuries becomes more complicated. Also, although your injuries may be real, and the costs of treatment reasonable and necessary, your settlement amount may be limited by the insurance policy limits of the at-fault driver.

Using the $50,000/$100,000 example, the at-fault driver only has $100,000 of coverage to go around. There were three badly injured people. The most any one person can get is $50,000.

Suppose each of the three injured people had $50,000 in damages? In most states, the insurance company won’t take responsibility for dividing up the money.

The funds will be deposited with the court. Then it’s up to you and your attorney to convince the court your costs were reasonable and necessary, and your pain and suffering was greater than anyone else’s.

Your attorney will do more than argue your case in court. There are other ways your attorney can increase your injury compensation.

An experienced injury attorney has the legal tools to:

  • Determine assets of the at-fault party outside of insurance
  • Look for additional sources of insurance money from the at-fault parties
  • Handle underinsured motorist claims against your insurance company
  • Negotiate a reduction of medical liens against your settlement

Other Types of Injury Insurance

Commercial vehicle policies, business liability policies, and medical malpractice coverages are examples of injury liability coverages that can easily have million-dollar limits.

Companies that offer high-dollar insurance have armies of defense lawyers ready to fight any serious injury claims made against their insured. You can’t fight them on your own.

You don’t need money to talk to an attorney about the value of your claim. Most injury attorneys don’t charge for the initial consultation, and represent injury victims on a contingency fee basis, meaning they don’t get paid unless your case settles or you win a court verdict.

Video: 5 Factors that Affect Your Settlement

Charles R. Gueli, Esq. is a personal injury attorney with over 20 years of legal experience. He’s admitted to the NY State Bar, and been named a Super Lawyer for the NY Metro area, an exclusive honor awarded to the top five percent of attorneys. Charles has worked extensively in the areas of auto accidents,... Read More >>