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How Much is My Case Worth?

How Much Is Your Personal Injury Case Worth?

How much is your personal injury case worth? Your case is worth what a jury awards after hearing all the facts.

But what if you don’t want to go all the way to a jury trial. What is your case worth for settlement purposes?

Although there are no exact formulas, there are factors you need to consider that will increase or decrease the amount of the claim value. You always start with deciding what the jury is likely to award. The insurance company is usually willing to settle the case if the amount is less than what the jury might award, and you, on the other hand, will be willing to take less if you can get the money right away.

There are many factors other than the nature of the injury that influences the value of your claim.

You must consider your chances of winning the case. If there is no real chance of your winning your case, then the claim is worth little or nothing over the litigation expenses. But if your case has substantial merit, then the value of the matter is more directly related to the extent of the injuries. If there is a strong chance of you losing the case, then that would lower your value. There are specific factors, such as a drunk driver, that increase the value, particularly if you consider you may have a punitive damages claim to punish the wrongdoer for intentional or reckless conduct.

You must consider the amount of insurance available. If there is only a small insurance policy and the defendant has no personal assets, then the settlement will have to be within the policy limits. If the injuries exceed the amount of insurance available, but the defendant is a business or otherwise has assets, you may not be limited to the insurance policy amounts.

The nature of the injury is the most significant factor in deciding the value of your claim.

So, let’s look at what evidence the jury can consider concerning the nature of your injury. At a trial, the Judge gives direction to the jury on how to calculate damages. It is the role of the jury after hearing all the evidence at a trial to decide how much the plaintiff receives. The Judge’s jury general instructions on what damage factors should be in their verdict will include three:

  1. medical expenses,
  2. economic loss and
  3. non-economic loss.

The medical expenses included medical bills, hospitalization, and treatment costs, as well as expected future medical bills. Economic loss includes loss of time or income and losses other than medical expenses and the financial loss you are reasonably likely to incur in the future. Non-economic loss includes pain, suffering, disabilities, disfigurement, and any accompanying mental anguish past, present, and future.

The jury decides the reasonable value of these items. So, all evidence relevant to determining the fair value is included:

  1. amount billed,
  2. the amount paid, and
  3. any write-offs.

The Judge will also tell the jury that in determining the amount of the damages, you must consider the plaintiff’s age, condition of health before and after the accident, and the nature, extent, and duration of the injuries.

If the injury created more than minimal discomfort, then you are compensated for pain and suffering. There is no unit value and no mathematical formula that the law or the Judge will give for determining items such as pain, suffering, disability, and mental anguish. In general, the jury must establish an amount that will fairly and adequately compensate you, but the exact amount rests with the discretion of the jury.

The Judge will only let the jury consider those items upon which there is at least some evidence.

The defendant is allowed for future damages to reduce future economic losses to present worth.

Disfigurement can be considered by the jury. The law defines disfigurement as that which impairs or injures the beauty, symmetry, or appearance of a person which renders the area unsightly, misshapen or imperfect or deforms in some manner.

The impairment of an injured part’s capacity to earn is also relevant. You compare what the injured person could make before with what the person is capable of making after the injury.

Loss of enjoyment of life is a valid subcomponent of pain and suffering.

Anxiety based upon a reasonable fear that the injury will lead to a future condition is considered. For the fear to be reasonable, you don’t need to show that the prospect is a medical certainty but that there is a substantial possibility for such an occurrence.

If the damages award is for diminished earning capacity based on disability, the loss is considered economic and not subject to a damages cap.

What about damage caps?

However, a statute K.S.A. 60-19a02 provides for a limitation on certain types of damages, so it limits your personal injury case worth. Under the old common law, the jury could award any dollar amount if it was under the amount formally asked by the plaintiff. The Kansas Constitution in Section 5 also guarantees the right to a jury trial, but specific statutes such as K.S.A. 60-19a02 give the jury limitations. These damage caps are increasingly being challenged as unconstitutional. In one such case, the injured motorist brought a negligence action against the owner of a commercial truck that struck her vehicle. After entry of a jury verdict in favor of motorist that included $301,509.14 in non-economic loss damages, the Sedgwick District Court, reduced motorist’s non-economic loss damages to $250,000 following the statutory cap on such damages. The Supreme Court then decided that statutory cap on jury awards for non-economic damages in personal injury actions violates the constitutional guarantee of the right of trial by jury. We are still waiting to see how far-reaching the court’s decision will be.

It is odd however if your accident were on June 30, 2014, you would cap out at $250,000.00 in pain and suffering. If you had an accident a few days later, say July 2, 2014, the law would then allow you $300,000.00. There is no explanation in the law or the court opinions on why the award should depend not on the severity of the injury but the date of the accident. The law does not explain why a claim based on the identical facts would be worth more just because of the occurrence date. You can find a link to the non-economic cap at this link.

The statute provides:

If a personal injury action is tried to a jury, the court shall not instruct the jury on the limitations of this section. If the verdict results in an award for non-economic loss which exceeds the limit of this section, the court shall enter judgment for all the party’s claims for non-economic loss in the amount of:

(1) $250,000 for causes of action accruing on or after July 1, 1988, and before July 1, 2014;

(2) $300,000 for causes of action accruing on or after July 1, 2014, and before July 1, 2018;

(3) $325,000 for causes of action accruing on or after July 1, 2018, and before July 1, 2022; or

(4) $350,000 for causes of action accruing on or after July 1, 2022.

Such entry of judgment by the court shall occur after consideration of comparative negligence principles in K.S.A. 60-258a, and amendments thereto.

(e) The provisions of this section shall not be construed to repeal or modify the limitation provided by K.S.A. 60-1903, and amendments thereto, in wrongful death actions.

Kan. Stat. Ann. § 60-19a02

In wrongful death cases the statute provides:

Damages may be recovered for, but are not limited to:

(1) Mental anguish, suffering or bereavement;

(2) loss of society, companionship, comfort or protection;

(3) loss of marital care, attention, advice or counsel;

(4) loss of filial care or attention;

(5) loss of parental care, training, guidance or education; and

(6) reasonable funeral expenses for the deceased.

Kan. Stat. Ann. § 60-1904

In any wrongful death action, the court or jury may award such damages as are found to be fair and just under all the facts and circumstances, but the damages, other than pecuniary loss sustained by an heir at law, cannot exceed in the aggregate the sum of $250,000 and costs.

Kan. Stat. Ann. § 60-1903

So there is a cap in wrongful death cases for nonpecuniary or non-economic losses such as mental anguish, but no cap on financial or economic damages. So as you might imagine, a lot of time and effort is spent figuring out what is and what is not subject to the statutory cap or even if the lid is valid.

Also, in Kansas, you have what is called comparative negligence, so the verdict is reduce by any percent of fault allocated to you. If your fault is 50% or more, you get nothing.

Finally, you have to find out the nature and extent of any liens. A lien is a claim on your award, usually made by some entity that paid some or all of your medical bills early on. In some cases, the lien amount can be so large it will be hard to settle for a fair amount.  There are several ways a lawyer can lower or reduce the amount of these liens,

The value is finally determined by looking at actual jury verdict amounts in real cases.

After we consider all these factors, we come up with a value based on the track record of what similar juries award for similar fact patterns and come up with a range of what the actual jury verdict might be. We then discount those that range for early settlement and make an offer on the high end.

The final factor in determining the value is you. Are you a person the jury will like? If so, you will get more; if you are a person the jury will hate you will get less. We must consider which county the case will be filed in; some county juries consistently come in at higher figures, and some much lower.

Finally, you must consider the experience of the person negotiating. If you have no experience, you will not know how to make the offer or see when the other side is playing games. The skill of your lawyer plays a part; the more highly skilled lawyer will add value by carefully considering and presenting all the needed evidence to the adjuster to get you the highest value. In a settlement negotiation, we start on the high end, and the insurance company begins at the low end, and if we meet in the middle, the case is settled. If you’d like to discuss the specifics of your case, please give me a call at 785-273-4330.

We don’t make the law, but we will fight to get you as much justice as the law allows.

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