As I’ve continued to grow and gain experience as a personal injury trial attorney, I’ve come to realize that no case is perfect. However, I’ve also come to realize that meaningful value can be realized in some of our most imperfect cases. To determine such value, it is critical to strategically position a client for success prior to trial. This is particularly true in the dreaded “no pay” case.
As an attorney it is common that an insurance adjuster or defense attorney proudly proclaims, “no pay” and refuses to offer a single penny. Insurance companies are notorious for their “no pay” position, and when they say it, they mean it. Here is our firm’s recent story of how we turned an insurance company’s “no pay” case, into a six-figure settlement.
The plaintiff in this case was involved in a classic automobile rear-end collision. The facts are simple, the plaintiff was approaching traffic due to construction and came to a complete stop. Suddenly and without warning, plaintiff was rear-ended by the defendant going 20-25 mph. There was minimal damage to the plaintiff’s vehicle, and she drove herself to the hospital later that day. The defendant alleged in her Form C Interrogatories that the plaintiff had stopped short, causing her to collide into the plaintiff. Thereafter, the plaintiff treated conservatively, namely physical therapy and chiropractic treatment.
Following MRIs, it was determined that the plaintiff sustained injuries to her neck and back. This included one broad disc protrusion to her cervical spine and one small midline disc herniation to her lumbar spine. Importantly, the plaintiff treated a chiropractor only three weeks prior to the car accident. As you may have guessed, the defendant/insurance company alleged that her injuries were pre-existing degenerative conditions. This was a standard verbal threshold herniation case.
Prior to the lawsuit, the insurance had denied permanent bodily injury due to the verbal threshold. After the lawsuit was filed, it was clear that the insurance company was going to maintain a “no pay” position. This included the insurance company retaining two medical experts, as opposed to the plaintiff’s one medical expert. During non-binding arbitration, the plaintiff was only awarded $17,500.00. This low arbitration award only continued to bolster the insurance company’s “no pay” position.
Shortly thereafter, our firm determined it was more likely than not that our firm would be trying this case in a county notorious for no cause verdicts in verbal threshold cases. After speaking with the plaintiff, she agreed to make the defendant/insurance company a $15,000 offer of judgment. Our firm strategically made a low offer of judgment, since it was likely the insurance company would not accept the same. However, our client was prepared to resolve the case at $15,000 if accepted.
Following the offer of judgment, the defendant/insurance company filed numerous motions in limine, motions to bar certain discovery, and a motion for summary judgment. Likewise, our office filed numerous oppositions to defendant’s motion, motions in limine, and other discovery related motions. Due to various issues, the trial was adjourned multiple times, which required our firm to prepare for trial several times.
In any case, whether it retains multimillion dollar value or “no-pay”, our firm’s trial preparations remain the same. This includes demonstrative evidence, trial graphics, videos, and researching the jury panel. Our office is fortunate to have a full-size courtroom to practice opening statements and prepare the client for numerous sessions of trial testimony in front of a live jury. While lead counsel conducts direct examination of plaintiff, another firm attorney acts as defense counsel and cross-examines the plaintiff harshly. All potential trial scenarios are explored.
Approximately one week prior to trial, the defendant/insurance company requested a new settlement demand and stipulated liability. Since our firm made numerous efforts to settle without any counteroffer, the plaintiff withdrew her last settlement demand and made a subsequent settlement demand for $185,000.00. If the parties were going to trial, it was reasonable to make a high settlement demand, so if the defendant/insurance company sought to settle during trial, the plaintiff retained a position of power. It was clear that the trial judge was not thrilled by the plaintiff’s settlement demand of $185,000.00, especially considering the $15,000.00 offer of judgment.
Like most cases, the insurance adjuster was present during trial. This was critical, whereby the insurance adjuster witnessed how prepared our firm was, particularly in utilizing technology during trial. Due to our client’s preparations, she was a star on the witness stand. Likewise, our firm’s jury panel research allowed us to obtain a favorable jury.
Our firm was also strategic in obtaining an aggravation charge, which clearly concerned the insurance company. Since the defendant alleged that plaintiff’s injuries were degenerative in nature, plaintiff alleged any asymptomatic degenerative conditions she had prior to the accident were aggravated to the point she was now symptomatic. Notably, the defendant’s medical expert admitted that degenerative conditions could be aggravated by trauma. Likewise, the plaintiff’s medical expert testified in detail to the same. All personal injury attorneys should be aware of Edwards v. Walsh, 397 N.J. Super. 567 (Super. Ct. App. Div. 2007), which allows the aggravation charge despite plaintiff initially denying the existence of any pre-existing condition. In that case, the defendant raised the issue through their own medical expert and during cross-examination of the plaintiff’s medical expert.
Prior to closing statements, the insurance company made its first settlement offer. It was clear the insurance company was concerned about the aggravation charge, and any potential legal fees related to the offer of judgment if plaintiff obtained a verdict for $18,000.00+. Clearly, the threat of a substantial verdict, and offer of judgment was a driving force towards settlement. Due to plaintiff’s settlement demand of $185,000.00 just prior to trial, our client was able to obtain a six-figure settlement in an insurance company “no pay” case.
As stated before, value can be obtained even in “no pay” cases, but you need to be willing to try the case and strategically prepare for trial in advance. Please reach out if you have any questions or would like to discuss your case.
