Tort Reform Affects The Value of Your Claim

Lord & Faris, Minneapolis, St. Paul, Minnesota personal injury attorneys are experienced and skilled in knowing the value of your claim once the claim is ready to be resolved.

I.  Should I Settle Or Go To Trial?

 A. Once your case is ready for settlement or litigation, you can proceed to resolve your case through a settlement demand letter, or trial. The attorney may choose to send a letter to the defendant and/or the insurance adjuster making a demand for a payment of a particular amount of money to resolve the claim or put the case into suit. If the insurer does not agree with the attorney's demand, and negotiations have stalled, the attorney and the client will discuss their options and make a decision to accept the offer or put the case into suit and go to trial. The attorney gets the case started by serving a Summons and Complaint on the Defendant.

After the Summons and Complaint have been served and the Complaint has been answered by the defendant, the attorney will file them with the Clerk of Court. This begins a series of events known as "litigation."  Once the discovery phase of the case is completed, your case will go to mediation and at that time have another opportunity to settle your case or go to trial. 

II.  The following factors will help you to decide to take your case to trial.

A.  How Would A Jury Decide?

In Minnesota, in 2007, approximately 55% of the trials have been won by the Insurance Companies.

B.  Determine The Amount Of Insurance Coverage Available? 

In almost all cases, you can recover only up to the amount of the liability coverage purchased by the person who caused your injury. If you go to trial and the jury awards you, for example, $50,000 but the defendant has only $30,000 in liability coverage, you can only recover the $30,000 that is available on that policy. An injured party can successfully sue for the defendant's assets only if the defendant has assets other than a home (primary residence). In the above example, you may also make a claim for underinsured benefits on your own policy to cover the gap of $20,000.

C. Determine the Liability/Negligence: 

After the trial is completed the jury is brought into the jury room where they are given the following series of questions to answer:

1. Was The Defendant Negligent (At Fault For The Accident)?

Being a member of society requires that we all act, drive, and maintain our vehicle in a responsible way. The jury must consider whether the Defendant (at fault driver) breached his/her duty of acting responsibly to his fellow citizens. Driving through a red light is clearly a breach of that duty, hence negligence. A questionable case is when a driver rear-ends the car in front of her/him because that driver made a very sudden stop.

2. Determine Comparative Fault (Was the Plaintiff in any way at fault?)

In Minnesota, a jury is asked to determine percentages of fault. For example, if they determine that the Plaintiff has some degree of fault such as 15% and Defendant has 85%, the Judge is required to deduct the 15% of Plaintiff's fault from the total award. If the jury attributes the Plaintiff with 51% or more of the fault, the Plaintiff loses and must pay the defendant’s costs and expenses.

3. Determine If The Negligence Was The Cause Of The harm to Plaintiff? 

The jury must then decide whether the Defendant's negligence (driving through a red light and hitting Plaintiff broadside) was the cause of Plaintiff's injuries such as a broken arm.

D.  Determine The Severity Of The Damages: 

1. Past And Future Medical Treatment: 

The jury must consider past medical treatment expenses and if a doctor can document that you will need future medical treatment and can prove the cost of that treatment, those costs will be considered as part of your damages.

2.  Past And Future Pain And Suffering: 

Pain and Suffering is another subjective consideration of the injured person's claim that a jury will address.

3. Past And Future Lost Wages: 

If you have missed a lot of time from work as a direct result of the injury, the loss of wages, both in the past and in the future will be considered in the value of your claim.

II. Tort Reform Is Alive And Well In Minnesota And Will Affect Your Case:

The Minnesota Legislature has devised several ways to prevent a Plaintiff from bringing a frivolous lawsuit. We have some of the most severe consequences of any state if we lose at trial which is an effective deterrent to bringing an unworthy claim. The following are rules that must be considered before deciding to go to trial:

A. Collateral Source Rule: 

Minnesota law requires the Judge to deduct from the jury verdict award all of the collateral source payments [all other sources of benefits that have been contributed to your care as a result of this accident]. The collateral source payments consist of the following:

1. All No-fault benefits received

2. All health insurance payments paid for your medical care that do not have to be paid back. (Most health insurance plans require that the injured person reimburse the health insurer for any medical expenses paid as a result of another's negligence).

3. Worker's compensation payments for an accident on the job

4. Disability payments not directly purchased by client

5. Dental insurance payments paid for your dental care

B. Health Insurance Subrogation Right: 

If your health insurer has covered any of your medical expenses as a result of this accident, the law allows them to be reimbursed in full unless they fall into an exception. The exception is found in Minn. Stat. 62A.095, Subd. 2(1) which provides that a subrogated medical provider cannot receive reimbursement until the covered person has received “full recovery.” By law, the reimbursement must be paid out of your share of the recovery.

C. What Is An Offer Of Judgment And How Does It Work? 

The Plaintiff can lose at trial even if she/he wins at trial. By law, the Defendants can make a formal written Offer of Judgment or Settlement to the Plaintiff, pursuant to Civil Procedure Rule 68 in order to settle the case. The Plaintiff can refuse the Offer Of Judgment and choose to go to trial. However, if she/he wins at trial but the jury award, after the deductions for comparative fault and the other collateral sources results in an amount less than the Offer of Judgment/Settlement Offer made to the Plaintiff, the Plaintiff will collect nothing and in fact will be forced to pay to the Defendant all the Defendant's costs/expenses for the case.

Example:
$10,000 Offer of Judgment (Made by Defendant Prior To Trial)

$9,500 Jury Award

The Jury Award is $500 less than Offer of Judgment and as a consequence, according to the rule, the Plaintiff will lose the trial.

D. Loss At Trial Requires Reimbursement Of Defendant's Case Expenses: 

If a Plaintiff lost the trial, by law she/he is forced to pay all the expenses of the other side including her/his own case expenses. If the Plaintiff lost at trial the defense Insurance Companies routinely obtain a judgment against the Plaintiff for their costs/expenses of the case regardless of the Plaintiff's financial situation. In addition, if the Plaintiff lost at trial, she/he, depending on the agreement with their attorney, may also have to pay their own case costs/expenses incurred in the litigation.

Needless to say, going to trial with these severe consequences for losing makes all of us think long and hard about the advantages of settlement. The following rather random calculations have been put together to show the difference between what a Plaintiff can expect to get at trial or in settlement.

III. TRIAL OR SETTLEMENT CALCULATIONS: 

Assume the following FACTS:

1. Liability Insurance (Defendant's insurance coverage) is- $30,000
2. Insurance adjuster has OFFERED - $15,000 to settle the case.
3. Plaintiff will be assessed 5% of FAULT by the jury.
4. Plaintiff has been paid some COLLATERAL SOURCES:

COLLATERAL SOURCES PAID
Health Insurance Paid  - $1,200
Work Comp/Disability Payments Paid  - $ 1,000
No-Fault Benefits Paid-$ 5,000-$ 5,000 - $ 5,000
Total Collateral Benefits Paid - $ 7,200

CASE EXPENSES(those expenses incurred while working on the case):

Case Expenses Before Trial Starts - $ 800
Case Expenses After Trial  - $ 5,000

JURY VERDICT OF - $30,000

DEDUCTIONS FROM THE VERDICT AMOUNT
5% Comparative Fault - $  1,500
All Collateral Sources Deducted  - $ 7,200
Attorney’s Fees Of 1/3of $30,000  - $10,000
Case Expenses - $  5,000
Total Case Costs - $23,700
NET TO PLAINTIFF: - $ 6,300

SETTLEMENT OFFER OF - $15,000

Attorney’s Fees Of 1/3 - $5,000
Health Insurance To Be Paid Back  - $1,200
Workers’s Comp Payments - $1,000
Case Expenses  -$ 800
Total Case Costs - $ 8,000

NET TO PLAINTIFF - $7,000

In the case of settlement, Plaintiff does not have to deduct any collateral sources or percentage of fault from the settlement. However, health insurance payments and worker comp payments must be reimbursed so they are deducted anyway. Plaintiff receives almost as much as she/he would at trial with out the risks and without the 5% deduction of comparative fault or the deduction for No-fault benefits of $5,000.

Three Locations to Serve You