Valuation of Claims
When an attorney is trying to resolve a claim by way of settlement, the type of injury and liability are the factors that must be examined.
Type of injury is important in valuing a claim. The soft tissue variety of injury suffered in an auto collision tend to have a lower value than fractured bones, torn tendons, or torn ligaments. One of the reasons for this is because soft tissue injuries, such as generalized neck and back pain (whiplash), rely mainly on subjective reports to medical providers and/or other witnesses. Injuries such as sprains, strains, or other soft tissue injuries require a jury to solely believe what the plaintiff states about their pain and suffering because they (the jury) have no other way of knowing. This makes it more difficult for an attorney to persuade a jury about the value of a plaintiff’s injury above lost wages and medical bills.
On the other hand, fractures, torn tendons, or torn ligaments can be objectively witnessed through radiological studies. A plaintiff’s attorney can have a jury observe an x-ray film up on a screen. The jury can see the injury first and then hear from the plaintiff about what it felt like to suffer that observable injury. This second variety of injury is much easier to prove with respect to pain and suffering. For these reasons broken bones, torn tendons or torn ligaments tend to carry a higher value than soft tissue injuries.
Additional valuation analysis involves the type of injury one has suffered, as discussed above, but also requires an analysis of liability. For example, the parties may agree that a plaintiff fell on ice and suffered a fracture of the left arm. However, the parties may disagree on fault. If a jury determines that a plaintiff was comparatively negligent, the value of the injury is reduced by the percentage of fault assigned. Using the example above, this can be illustrated in a slip and fall matter where a plaintiff fell on ice and suffered a fracture of the left arm. The parties may agree on the full value of the injury, but may disagree on the fault assigned to the plaintiff. The problem here is that a plaintiff needs to act reasonably and if they knew or should have known of the danger, but did not take appropriate precautions a jury could find comparative negligence and the value of the fracture could be reduced. Here, if a jury found that the plaintiff’s broken arm (pain and suffering) was worth $100,000.00, but also determined that the plaintiff was 30% at fault because they knew the walkway was icy but took no precautions, the jury’s award would be reduced by 30%, so the plaintiff would only be entitled to $70,000.00 of the $100,00.00.
If you’ve been injured in an accident it’s important to have an experienced attorney review your case so you know what your claim may be worth.