< SECTION V
Duke Breitenbach
Settlement
Civil Proceedings
You get to these steps if you have NOT reached a settlement with the insurance companies.
You have come to this point with guidance from your attorney. For this discussion, I will assume that the vehicle operator is assumed to be the “At Fault” party, had insurance and you, the bicyclist, were not responsible for the crash.
In my case, the Florida Highway Patrol did not cite the truck driver for any violation. The insurance company for the truck driver would not offer any settlement.
Florida law provides you the right to file a civil suit against the vehicle operator. From my experience, these seemed the only way to get the attention of the insurance company and let them know you are serious about the claim.
Lesson 28 – Do not hesitate to file a civil suit. It appears to be the only way to get serious attention.
By now all of your documentation: crash report, medical reports, medical history records, witness reports, pictures, damaged equipment, etc. have been made available to your attorney. From this and your statements, your attorney will build the case and notify the opposing insurance company of your actions and intents. Your attorney may suggest you get a current medical exam to confirm your current condition.
The vehicle operator’s insurance company will have legal counsel representing them. This is where the real negotiations begin. Your attorney and their counsel discuss the merits of the case on the threat of filing the civil suit. You may luck out at this point and reach a reasonable settlement. It looked like we had a chance at this, but several changes of assigned attorney for the defense further complicated the process.
he time frame to this point was nominally two years after the crash. My physical condition had stabilized and the legal wheels turned very slowly. No reasonable settlement offer was presented at this point.
Barring a settlement, the next step is actually to file the civil suit in the appropriate court. Again after many delays, the process continues with the “disclosure” phase.
Both sides are allowed to “depose” the individuals for each side. In simpler language, each side interviews/interrogates the other’s client and, possibly, witnesses and medical providers.
The counsel for the insurance company set a time to depose both my wife and myself. For us, it was at least a two-hour grilling of each of us for all issues related to the case. Your attorney is present during the deposition and you are allowed to refer to all of the documentation provided in the case file prepared by your attorney.
The legal profession is really good at finding discrepancies in documentation and statements.
Lesson 29 – Be sure your deposition statements are truthful and consistent with the written documentation provided.
Your attorney will depose the defendant and other appropriate witnesses. Now each side has a good idea of the “character” of the opposing clients. Here again is a point at which you may get a reasonable settlement.
In our case, however, I was made out to be “Tarzan” since I was able to regain an ability to swim, bike and run. There was no concern regarding pain or reduced levels on their part. Since there was still no reasonable offer made at this point, Florida requires that you present your case for “mediation” prior to actually scheduling a court date.
Arriving at a Settlement
I was very disappointed with the mediation process. Although the mediator had had the case file for well over a week prior to the mediation date, he did not even know my name.
Present at the mediation are the insurance adjuster, insurance counsel, your counsel and yourself. Each side presents a summary of their case and then the two sides retire to separate rooms.
The mediator then shuttles between the two rooms presenting proposals and counter proposals. The mediator then gave us a “boiler plate” speech, basically stating that we should take whatever the insurance company offers.
The process took well over three hours, starting with a ridiculous offer from the insurance company and never even getting close to a reasonable settlement. The adjuster had come with a maximum amount he was authorized to offer, but of course that did not come out until after the three hours and all the haggling.
The game is to establish a bracket of a possible settlement amounts. After the three hours it was evident that we were not going to come to a settlement. I could only suggest that the mediation process in my case was nothing more than a welfare system to support a retired judge.
My attorney had provided me with a range of settlement values of what he thought would be reasonable based on his and peer experience.
Lesson 30 – Establish a settlement value that is reasonable and do not be intimidated into accepting something significantly below that level.
Up to this point your only out-of-pocket expenses incurred are your travel and lodging expenses if they are required.
Typically office fees for copying, etc; filing fees and mediation expenses are paid out of a fund established by your attorney.
So now it is off onto the next step. Throughout this process the opposing counsels are communicating with each other. If a court date is set, each side will probably elect to depose additional witnesses. Since most of my medical treatment was done in Idaho, this would have meant additional expenses to pay for my attorney to depose my doctors in Idaho. Airfare, recording expense and the fees charged by the doctors for their time would have been incurred.
Your attorney initially pays these expenses, but they are then deducted from your portion of the settlement. Another point to take into account is that proceeds from an out of court settlement are not taxable as income.
At this point, both sides in my case recognized the escalated costs and risks to pursue the suit beyond this point. From my perspective, the risks became significantly higher.
The decision would be in the hands of an unknown jury and if the award was low, I would have to compensate the insurance company's attorneys. The defense recognized their risks and additional costs and finally made an offer that met my minimum threshold.
After a lengthy discussion with my attorney, we agreed to accept the offered settlement. This settlement was completed four years after the crash.
Lesson 31 – Be reasonable in your expectations and carefully evaluate the reward to risk factors and accept a reasonable settlement.
Lesson 32 – Exercise patience and common sense.
This brings us to the end of my 'crash recovery" saga. I hope this series may make it easier for those that have to endure a similar process. However, it should be noted that at each juncture there might be a different avenue appropriate for your case.
The obvious solution is to avoid the crash in the first place, but that is not always under your control.
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