It’s a simple question with a simple answer. Claimants want money. How much is another question and varies depending upon the individual situation and facts. Attempting to put a value on an individual claim depends on the nature of it, the losses sustained, the liability issues which appear and how they may affect all of the parties involved, and more. While money is important, it is certainly not always the only consideration.
In property damage situations it is somewhat easier to calculate the losses sustained. For example, in a typical auto accident, physical damage to automobiles or trucks may often be calculated by looking at the vehicle's damage and considering parts and labor costs incurred for repairs. The matter may involve damage considered to be a total loss, and factors such as age and condition could apply.
Professionals operating in major metropolitan areas like Los Angeles, New York, Chicago and Miami may have claims involving expensive autos. Situations where the vehicle is considered a total loss and cash value is offered to the claimant may be more difficult to settle. When a vehicle was relatively old but was good, dependable and rather inexpensive transportation for the owner, its low cash value may upset the claimant who feels the settlement offered is insufficient to allow him to acquire similar transportation. Explaining the offer from the insurer’s view is sometimes a difficult exercise. If the adjuster has some latitude with respect to value, then reaching an amicable agreement is more likely.
Aside from physical damage to a motor vehicle there are damages to other property. Collisions between motor vehicles and houses, businesses and so forth do occur. If an enterprise is forced to close for a period of time, business interruption issues must be assessed.
When considering personal injury claims, assessing the extent of the injuries and consequences often becomes more complex. In some instances the injury is relatively obvious and provable, for example a bone fracture can be seen on an x-ray. How it will heal and whether there will be impairment and the degree of impairment are another matter and may require some time before they are evident.
Soft tissue injuries can be harder to prove, as well as any impairment, which is often a matter of dispute and frequently involves conflicting medical opinions. Personal injury claims may involve loss of income to the claimant and affect future ability to work at a particular occupation. Rehabilitation expenses may also be involved, in addition to pain and suffering.
While some claims for compensation when an individual is injured may be fraudulent, in reality many do suffer much discomfort and in some cases on a permanent basis.
Money and the measure of damages are important, but they should not be the only consideration when settling a claim or lawsuit. Claimants are seeking what they believe is just compensation for injuries and losses sustained as the result of actions or inactions of others. However, this is not always their only interest. While focusing on the ‘quantitative’ and how much, the ‘qualitative’ relating to the incident may be lost in the shuffle.
Aside from interest in being compensated for losses sustained as the result of acts or the failure to act by another, sometimes the party sustaining the loss may want recognition and perhaps a degree of heartfelt sympathy.
What does this cost? In reality, nothing and it may result in the claimant agreeing to a settlement that would have cost more without some degree of compassion. This is not to suggest that most adjusters do not already consider this, it is merely a reminder to perhaps enlighten those who are somewhat jaded about claims.
There was a situation involving a guest in a hotel who had accidentally slipped and fallen while attempting to enter an elevator. The hotel staff appeared but treated the situation in a rather cavalier manner, showing little real concern for the guest who had fallen – a bad response to the situation. Eventually it resulted in a claim which probably could have been avoided had more sincere concern been shown by the staff immediately after the incident.
In another litigated matter it appeared that the plaintiff simply felt the need to prevail against the defendant. While this may not necessarily be appropriate, if this had been recognized and considered earlier in the settlement discussions, the defendant might well have settled the matter. Sometimes the claimant is not simply looking for compensation, but is also seeking some degree of sympathy or recognition of their view of the claim. If claimants and their insurers can accept and recognize this, it may help to arrive at a settlement that benefits all parties. It is not always simply a quantitative matter of how much, but involves qualitative considerations of how the other party feels.
Is money important in settling claims? Absolutely, but there are often other considerations involved. Under most circumstances the adjuster assigned to the matter has limited authority and often must consult with a higher level claims manager when a demand exceeds authorized amounts. The adjuster, however, is in the trenches and may have insights into the claimant’s thinking that are not evident to someone on the other end of a telephone line.
As an attorney representing an insured, there have been times when the claims manager has not felt that the demand to settle is appropriate. Again the individual on the front line has the perspective of knowing what is important to an individual claimant and how the issue may be settled to the advantage of all. And when litigation can be avoided, almost always all parties win.
John Gregory Service is an attorney based in Boca Raton, Fla. He has been a member of the Florida Bar since 1974 and is also a Florida Supreme Court Certified Circuit and County Court mediator. Service has been involved in mediation and arbitration as alternative methods of dispute resolution for more than 20 years and has extensive experience as a mediator in the circuit and county courts of Palm Beach County, Florida, and Broward County.
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