6 Steps of the Personal Injury Claim and Settlement Process

Learn the basics of the personal injury claim process with this easy guide. Follow the steps to get fair compensation for your losses.

Injuries caused by someone else’s carelessness happen every day. Insurance companies pay out billions of dollars in compensation for injuries caused by car accidents, slip and falls, dog bites, medical malpractice, and more.

To win a fair personal injury settlement, you have to prove your case. For minor injuries, it’s a relatively simple process. You will file a claim with the at-fault party’s insurance company and negotiate a payout to cover your losses. For serious injuries, it gets more complicated. Most serious injury claims require an experienced attorney.

We explain the personal injury claims process from start to finish, so you have the information you need to get the injury compensation you deserve.

  1. Identify Who’s Responsible for Your Injuries
  2. Send Notification You’re Filing a Claim
  3. Gather Evidence to Support Your Claim
  4. Make Your Demand for Compensation
  5. Negotiate the Settlement Amount
  6. Sign the Settlement Release Agreement

Bonus: What to Do When Settlement Negotiations Fail

1. Identify Who Is Responsible for Your Injuries

Identifying the at-fault party is the first step in a successful personal injury claim. Depending on the circumstances leading to your injuries, more than one party may be at fault. There may also be coverage from more than one insurance policy.

Common types of injury claims and possible at-fault parties:

Auto Accidents:

  • Driver of the car that hit you
  • Parents of a negligent teen driver
  • All drivers in a multi-car accident
  • Driver of the vehicle if a passenger is injured
  • Employer of a driver using a company vehicle

Premises Liability / Slip-and-Falls:

  • Business property owner
  • Homeowner
  • Residential tenant
  • Store owner
  • Property maintenance company

Defective Products:

  • Manufacturer
  • Product designer
  • Product installer
  • Retail outlet

2. Send Notification You Are Filing a Claim

If you hired a personal injury attorney, your attorney will handle all communications with the insurance company. If you decide to handle your claim without an attorney, letters and calls from the insurance company will come directly to you.

As soon as possible after your injury, send a notification letter to the at-fault party and their insurer to let them know you intend to file a claim. The insurance company will then assign a claims adjuster to manage the claim.

First Contact from the Insurance Company

Don’t be surprised to get a Reservation of Rights letter from the insurance company. These letters are standard. They generally state that the company will investigate your claim, but they might deny it if they decide there is no coverage for your injury.

When the insurance adjuster first calls, they might ask for a recorded statement and for you to sign a medical release form. Watch what you say when giving a recorded statement. Anything you say can be used against you.

Also, only sign a release for medical records relating to your present accident and injuries. Adjusters want access to your old medical records to look for any pre-existing injuries. If the prior injuries are in any way related to your current injuries, they could try to reduce your compensation.

3. Gather Evidence to Support Your Claim

Strong evidence is critical to winning a fair personal injury settlement. The insurance company won’t pay you a dime unless you can prove you were injured and their insured is at fault.

If you’re able, gather evidence at the scene of your injury and throughout your treatment. Evidence like police reports or incident reports, pictures and video, and eyewitness statements can help prove your claim.

High-dollar, serious injury claims often require evidence that’s hard to get on your own. In these cases, you’ll need a personal injury lawyer to issue subpoenas and interrogatories, and seek court orders for protected information.

Showing You Were Hurt

It’s not enough to complain of pain or stiffness. You must have medical bills and treatment records that connect your injury to the accident.

Get medical treatment immediately. Go to the hospital emergency room, an urgent care center, or your primary healthcare provider. Tell every medical provider exactly when, where, and how you were injured. The medical records must reflect the full extent of your injuries and tie your injuries directly to the accident.

When you’re ready to make an insurance claim, request copies of your medical records and bills from your doctors, physical therapist, and anyone else who treated you.

4. Make Your Demand for Compensation

Don’t let the insurance adjuster rush you into an early settlement. If you’re still in treatment for your injuries, it’s too soon to know what your injury claim is worth.

Calculating Injury Claim Value

The losses you suffer because of an injury are called “damages” by insurance companies and injury lawyers. The adjuster won’t tell you everything you can claim for damages, so include as much as possible.

For personal injury claims, damages are separated into two categories: “special damages” and “general damages.”

Special damages are expenses you can measure, such as medical and rehab bills, out-of-pocket expenses, lost wages, and replacement services. Adding up your special damages should be relatively simple. You’ll have bills and receipts, and a letter from your employer detailing your lost wages.

General damages are losses you can’t measure, like pain and suffering, emotional distress, and loss of consortium. General damages don’t have a price tag, so they are harder to calculate. Still, there are ways to justify your general damages as part of your demand for compensation.

For example, if your medical records show you were not allowed to lift more than ten pounds, your emotional distress because you couldn’t care for your 20-pound toddler is justified.

For most minor injury claims, it’s reasonable to add one or two times the total of your special damages to account for your general damages. The total is a rough estimate of your claim’s value.

Sending a Settlement Demand Packet

Now that you know how to value your personal injury claim, the next step in the process is putting together a demand packet. This tells the insurance company how much money you think they should pay to settle your claim.

Your packet will contain a personal injury demand letter that gives the details of the accident, your injuries, medical treatment, and lists all of your damages.

You’ll also attach copies of your medical bills, receipts, and other paperwork that backs up your claim. Make copies of everything in the packet. Send one copy to the insurance company by certified mail, and keep one copy for your records.

When you receive the green confirmation card back confirming delivery, attach it to your copy of the packet. Now you’ll have a copy of everything you sent to the insurance company, along with proof they received your demand.

5. Negotiate the Settlement Amount

The claims adjuster will eventually respond to your demand. This is when negotiations begin in earnest. Before starting the process, you should have a basic understanding of how to negotiate a personal injury settlement.

The first counteroffer from the adjuster is usually very low. They might act like the offer is doing you a favor or try to justify it by saying your demand exceeds their “authority.” The adjuster wants to settle your claim quickly, and for as little as possible.

Some adjusters might say your medical bills and lost wages are too high for the type of injuries you had. They might go so far as to say that if you don’t accept the settlement offer right away, they may not be able to offer it again.

Don’t fall for the adjuster’s tactics. They’re testing you to see if:

  • You really understand how the settlement process works
  • You’re impatient enough to jump at a ridiculously low offer
  • You believe their authority is limited
  • You’re intimidated enough to give in to their arguments
  • You’re serious and willing to file a lawsuit if you don’t get a fair offer

The best way to let them know you’re not intimidated is to thank them for the offer and say you don’t agree with the amount. Calmly explain that your injuries were real, and your doctor ordered your treatment because it was medically necessary.

You can tell the adjuster you might consider reducing your demand, but not by much. Thank them, and say you’ll be back in touch after reviewing the offer.

Negotiations resume when you respond to the adjuster’s offer and reduce your demand amount slightly. Always work down from your original demand, bit by bit. Never work up from the adjuster’s counteroffer.

The process will continue with offers and counteroffers between you and the adjuster. You’ll continue to defend your position, and the adjuster will do the same. Eventually, you’ll both come to a figure you are willing to accept.

6. Sign the Settlement Release Agreement

Negotiations can be stressful, but don’t let your guard down when you’re close to a settlement. Make sure the proposed compensation and terms meet your needs.

Before signing the settlement agreement, be sure:

  • The amount of compensation will cover your full medical expenses, lost wages, and pain and suffering
  • Any future medical expenses are included, if applicable
  • You understand exactly what the agreement covers (such as injury expenses and property damage)

As soon as you and the adjuster have come to an agreement, write down the details. Send a written follow-up to the adjuster confirming the amount you’ve agreed to accept and the terms of your agreement.

When you get the formal settlement agreement and release, carefully review the document to make sure it matches your verbal agreement. The settlement agreement is a legal contract. It’s up to you to know what you’re signing.

You have the right to consult an attorney before settlement. Once the release agreement is signed, you won’t be able to pursue more money.

Beware of Liens on Your Settlement

You are responsible for paying any liens out of your settlement proceeds. In some states, the insurance company is legally obligated to pay liens out of your settlement before cutting you a check for the remaining amount.

Legitimate liens can come from doctors and hospitals, workers’ comp, your private health insurance provider, Medicare, Medicaid, the VA, and even unpaid child support obligations.

What to Do When Settlement Negotiations Fail

Although it’s better for both sides to settle the claim, sometimes negotiations fall apart. Remember, the adjuster does not have to look out for the injured party’s best interests.

When settlement negotiations fail, you have several options, including:

  • Mediation is essentially taking another run at negotiations using a neutral person to facilitate the settlement discussions. If both sides can be encouraged to compromise a little, you may be able to reach an agreement.
  • Arbitration is more formal, in that both sides present their position and respond to questions from the arbitrator (often a specially trained attorney or retired judge). The arbitrator makes the final settlement decision, which is often binding on both parties.
  • Small Claims Court is an option if your damages don’t exceed the court’s limit. Most states have small claim limits between $5,000 and $10,000. Court actions are filed against the at-fault party, not their insurance company. You don’t need an attorney to file a small claims case.
  • Filing a lawsuit in your state’s Circuit or District court is appropriate when your damages exceed the limits for small claims court. You’re better off hiring an experienced attorney to file your lawsuit in a higher court.

If the settlement process for your personal injury case has dragged on, watch out for the statute of limitations, which is the deadline in your state for filing a personal injury lawsuit.

The adjuster knows that if you haven’t settled your claim or filed a lawsuit before the statutory deadline, you lose the right to seek compensation for your injuries. But don’t expect the adjuster to tell you when the deadline is looming.

Don’t wait until the last minute to protect your claim. Most personal injury attorneys offer a free consultation to injured claimants. When settlement negotiations stall, there’s no cost upfront to find out what an experienced attorney can do for you.

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 >>