Will My Case Need to Be Filed as a Lawsuit?
December 19, 2020
The vast majority of personal injury claims are settled outside of court. This is because both the insurance company and the injured person have incentive to avoid an injury lawsuit - usually for the insurance company, it is to avoid added expenses and costs of an attorney to defend their insured; for the injured person, it is to avoid a lengthy delay before their claim gets paid out and they are able to get caught up on medical expenses. However, in some situations, it makes sense to proceed to a lawsuit instead of settling.
Statute of Limitations
In Arizona, you must either resolve a personal injury claim against a defendant within two years from the date of the accident, or you will need to file a lawsuit in order to preserve your claim beyond that two-year deadline. This deadline is called the statute of limitations. If you have not settled your claim and you have not filed a Complaint with the court against the adverse driver prior to that deadline, you have forfeited your right to further pursue your personal injury claim.
Generally, it is preferable to wait to submit your claim for evaluation to the insurance company until after you have completed all of your medical treatment. In some cases, the accident is so severe that medical treatment is ongoing for a lengthy period of time. Sometimes that means that the statute of limitations is approaching before the injured person has completed their treatment. In that scenario, the only way to ensure that you can continue receiving the treatment you need while protecting your claim is to file a lawsuit.
In other cases, the process of obtaining all of the necessary records and negotiating the claim with the insurance adjuster may take longer than expected. In such situations, filing a lawsuit would also be a way to preserve your claim past the two-year statute of limitations.
Disagreement in Claim Evaluation
One of the other reasons you may opt to file a lawsuit is because of a disagreement with the adverse insurance company regarding the claim evaluation. This could be due to their liability determination (who is at fault for the accident and to what degree) or due to the amount of money they believe the injured person is entitled to.
Even with months of negotiations, gathering statements and evidence, and discussions about fault, the insurance company may still refuse to budge on their analysis and potentially attribute some percent of fault to the injured person. This percentage is then used to reduce their overall monetary claim evaluation, affecting the amount of money they are willing to offer to pay out to the injured person. You may choose to file a lawsuit at this point in hopes that the trier of fact (an arbitrator or a jury) will make a decision that either sides with you or is at least an improvement over the insurance company’s evaluation. For example, the insurance company may have determined that you are 80% at fault for an accident, therefore offering to pay only 20% of your medical expenses and pain and suffering. However, you may believe that a jury would find you 50% or less at fault. This possibility could be worth the pursuit of a lawsuit.
Similarly, the insurance company may disagree that all of the treatment you received was necessary, that your injuries were all related to the accident, or that your case is worth as much as you think it is. Again, you may choose to file a lawsuit in this situation if you believe an arbitrator or jury would award you more than the insurance company has given as their best settlement offer.
This decision should always be made after discussion with an experienced personal injury attorney who can review possibilities and likelihood of success if you file a lawsuit, as well as potential penalties or bills you may owe if you are unsuccessful (which may sometimes include the other party's legal fees).
Can I Still Settle My Case After a Lawsuit is Filed?
Settlement always remains as a possibility, even after a lawsuit is filed. It is often still a more desirable outcome for both parties, especially if a lawsuit was filed more so to preserve a claim than because the parties disagree over fact or value. Once a Complaint is filed for a personal injury claim, the claim can become more complex as there are certain required (and optional events) that occur after filing, such as depositions, exchanging documents, completing interrogatories and scheduling conferences and hearings. These will be discussed in further detail in a subsequent article, but remember that settlement can occur at any time – in some cases, even after a trial has already begun.
If you would like more specific information on the topics covered in this article, please call or email me for a consultation at 480-450-0626 or kay@joneslegalaz.com.
This article should be used for informational purposes only. It is not, nor is it intended to be, legal advice. It does not create an attorney-client relationship with any reader. If you need legal advice regarding these issues, please feel free to contact me at 480-450-0626, or contact an attorney in your area.