Posted By Alan Sackrin on November 5, 2015
Last Update: 02/01/17
Settlement or Trial: How Age Can Impact Your Injury Case
A lot of times when someone is involved in an accident it is not only the injury victim who is affected. Sure, it may be a single individual who is physically harmed in a car crash or slip and fall in Florida, but their loved ones and family members may be impacted as well.
Wives, husbands, sons, daughters, and parents of the injury victim can also experience a change in their lives. One accident can involve many claims.
Under Florida law, loved ones, usually the spouse, and the accident victim may all have their own damages to assert against the person who caused the accident (For example, claims related to the loss of enjoyment of life or emotional distress).
Insurance adjusters and insurance defense lawyers are prepared to address these claims. Not only will they have statistics and past claim histories to reference, but they may also use actuary tables to determine the life expectancy of a victim, when determining how much a claim may be worth.
Age as a Factor in an Injury Claim
Which brings us to the issue of age. The age of the injured person, and all the related claimants, will be considered by the insurance company as they evaluate things like lost earning capacity, pain and suffering, and permanent damages that impact the enjoyment of life. The defense will use age to try and reduce the value of a claim by asking questions such as: How many years is this person expected to work?, What is their life expectancy based upon the actuarial tables? Age will be argued by the defendant as a mitigating factor (age can also work the other way – if the victim is young, then they may have years of pain and suffering ahead of them that needs to be considered when valuing their injury).
Meanwhile, what about the injured person and their family members?
Age impacts the plaintiff side of things as well.
Age as a Factor in Settlement Decisions: Do You File a Lawsuit?
For plaintiffs, the question for many will be when to settle, not if to settle, with the insurance carrier. Most cases settle. Over 90% of all accident claims end up being settled; the other are taken to trial.
Being ready to try a case is one thing. As lawyers, we prepare for that possibility.
However, it’s understood that the practicalities of everyday living will weigh into every injury case. The question for our clients often becomes if it’s time to accept the offer that is being made by the other side. Should they settle or should they file a lawsuit and go to trial?
For injured victims and their families, how those practicalities impact their decision to settle their claim may be influenced by their age.
Age can make a difference in how many plaintiffs view their choice between settlement of a claim versus taking a stand to go to trial.
Plaintiff Injury Victim: 30-40s
For instance, if a Florida injury victim is a man in his 30s or 40s, he may well be a family man. He may be the main breadwinner — he may even be the sole provider for his wife and kids. He’s busy working a job, building a career. There are retirement plans to think about, maybe college funds to build.
This plaintiff may think he doesn’t have the time to deal with all of the time off work for depositions, responding to questions and battling in court to fight with defendants. Does he have to attend hearings downtown at the courthouse? How much time does that take from work? What about a deposition? How much time away from his job is that going to take?
This plaintiff may have the attitude that accepting a settlement earlier rather than later in the litigation proceedings is best. He may want to settle the claim before a lawsuit is filed. However, if that main is unable to work as well or as much do to an accident and his family is dependent on him to survive, the case may have to go to trial if an insufficient offer is made to compensate for those lost wages, which often are in dispute.
Plaintiff Injury Victim: 50-60s
Another situation may face a man in his 50s or 60s. Here, he’s living in an empty nest with his wife and he’s planning on retiring soon. After all, this is Florida!
He’s not pushing to build a career or long hours on the job; he’s established. For this plaintiff, every penny counts. He may see himself as someone who will not accept any settlement offer that is placed in front of him; he may be much more willing to fight in a courtroom for justice than the 30 – 40 year old guy in the earlier scenario. However, he may not want to risk going to trial as there is a chance he will be responsible for thousands of dollars in attorney’s fees and costs of his opponent if he loses or does not receive an award that is at least 75% of what was offered during the lawsuit.
Plaintiff Injury Victim: 70-80s
Then there’s the senior plaintiff. A man in his 70s or 80s is living his golden years, he’s enjoying each day as it comes.
Hopefully, he’s still able to share them with his spouse. He’s on a set retirement income, and he’s wise to what a fight involves. For this plaintiff, going to trial means a stressful experience that he may view as best to avoid. Who needs it?
Final note: for most South Florida personal injury lawyers, their attorneys’ fees will increase by 20% (from 33% to 40%) if a lawsuit is filed and the defendant responds in writing that he/she/it is denying the claim. This means that if a case is settled before a defendant responds to a lawsuit in Florida, there will less in legal fees and expenses deducted from the settlement amount. It costs approximately $500 to file and serve a personal injury lawsuit in Florida, and that is assuming there is only one defendant.
For some injury plaintiffs, that difference in money may be a big incentive in whether to move forward into a courtroom contest, or to settle their claim pre-litigation.
Deciding When or If To Settle?
In our many years of representing plaintiffs and their families in injury cases resulting from car accidents, slip and falls, pedestrian accidents, and other situations where they have been hurt because of the actions of another, we know that making the decision whether to accept a settlement offer is a matter that involves considerable soul searching. The decision is actually a business decision, just as the decision made by an insurance company what to offer is a business decision.
The strength and weakness of the case are the most significant matters that must be evaluated in deciding whether to accept an offer.. However, how a lawsuit and the stress of litigation will impact their lives is worthy of much consideration, too. Plaintiffs at different stages of their lives may view the choice between settlement and trial from very different perspectives. And that is perfectly fine. We understand. The decision to settle is the client’s decision, not the lawyer’s choice.
What Should You Do Now?
A good piece of advice if you think your age can affect your personal injury settlement, is to speak with an experienced personal injury lawyer before you file a claim to learn about some of the issues that can arise with these claims, including the type of evidence needed to prove a claim and the type and amount of damages you can recover. Most personal injury lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person) to answer your questions.
- What happens during a personal injury settlement conference?
- What Can I Expect in Settlement of a Florida Injury Claim?
- Can Settlement Negotiations Be Used Against You in Your Injury Case?
Do you have questions or comments? Then please feel free to send Alan an email or call him now at (954) 458-8655.
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