Wednesday, October 14, 2015

Social media and accident cases

Lately, I have witnessed an interesting development: insurance companies are routinely and regularly using injured people's social media to evaluate them as claimants.

I recently settled a case at a mediation. The mediator informed me afterwards that I had done quite well, considering that the insurance company had evaluated my client before mediation as being only a 'D' caliber plaintiff. I asked how in the world had they made that judgment, since my client was very presentable, credible, and in my opinion a very good person for personal injury lawsuit purposes.

His response was that they had found her on Facebook, and that there were several risqué photos of her on that site. The insurance company may have planned on somehow using these photos in the litigation, and trying to make them admissible at trial. But at a minimum, the client's posted information gave the company a way to evaluate my client's life story beyond just the information that the attorney provides them.

Most insurance companies rely to some extent on computers to value each claim. Some programs use a factor within the data that the adjuster enters that includes a subjective rating of a claimant's credibility, likeability, and overall grade as a potential plaintiff should the case go to court. This rating can directly change the value that the insurance company will pay to settle your case.

Later, when I looked at my client's Facebook page, I saw what they meant. My client was clearly trying to put out a good vibe directed toward their friends and others in their age group. However, this may not have appealed to a typically older jury panel that we typically see. Had the case not settled, I would have fought the insurance company and likely would have kept anything not directly relevant to our case out of evidence.

Yet on many cases, when we have someone who has been forced to reduce their activities, they may like to post their accomplishments and fun activities online. These posts may appear to be inconsistent with their injuries, and could be admissible in cross examination.

So a couple words of advice.... Be very careful what you post on Facebook, Twitter, Instagram, and other social media sites. Insurance companies, and others, are routinely looking, and if they see anything that may make you look bad, they will use it to reduce their valuation of your claim. Your online persona may negatively influence how insurance companies grade you as a claimant, and cost you a considerable amount of money.

Wednesday, October 31, 2012

Advance payment of medical costs and lost wages

In Montana, in many injury cases we can force liability insurance companies to advance pay medical bills and lost wages. By advance payment, I mean that you can get certain costs paid in advance of having to sign a final settlement. This option is only available when 'liability is reasonably clear', and the cost is directly related to the injury suffered in the accident. If liability is disputed, the advance payment option will be very hard to obtain.

This option is unavailable in most other states. It is available in Montana thanks to a couple of good Montana Supreme Court decisions.

In Ridley v. Guar. Nat'l Ins. Co., 286 M 325, 951 P2d 987, 54 St. Rep. 1430 (Montana 1997), the Court held that the insurer had a duty to pay plaintiffs' undisputed medical expenses up to the limits of its coverage and without the benefit of a settlement agreement.

In DuBray v. Farmers Ins. Exch., 2001 MT 251, 307 M 134, 36 P3d 897 (Montana 2001), the Montana Supreme Court stated that an insurance carrier must also pay lost wages that are reasonably certain and directly related to an insured's negligence or wrongful act.

This is one example of why most people are better off hiring an experienced personal injury attorney. Most people who are injured in an accident have no idea about these specific Montana rules for advance payment of medical bills and lost wages. They think that the only way to get their bills paid is to sign a final settlement, and they easily get rushed into settling before they know the full duration and extent of their injuries. Don't get rushed into settling before you should... Consult with an experienced injury lawyer first! You can see my web site for further information:, or call us at (406)563-3195 for your free initial consultation.

Wednesday, January 12, 2011

Should I settle my accident claim for $5,000?

It is not unusual that I get calls from people that were hurt in a car accident a few months ago, handled the claim themselves, and now have an insurance company offer to settle their case for a certain amount of money. They want me to tell them whether or not they should settle for that amount.

There are a number of things I will talk to them about. I am trying to find out how clear the liability is for the accident, how badly they were hurt, how much the medical bills were for, whether they have lost wages, have they fully recovered, and even whether they had any prior injuries of a similar nature. If I think that the offer to settle that they have in hand is significantly too low, I may offer to take the case and exempt the amount they have already been offered from my contingency fee.

To me, this is the ultimate proof that having a good attorney can add value to a case. I have repeatedly taken cases like this and helped my clients come out better than they would have without my services.

A lady called me and had an offer from the insurance adjuster to settle her auto accident case for $18,000. We took the case, and exempted that offer from legal fees. A couple months later, after we investigated and fully worked up the case, the client got a net settlement of $46,000 after all costs and fees were deducted.

Just this month I am settling a case where my client had been offered only $3,800 to settle by the insurance adjuster before I was involved. Again, after taking the case, filing a complaint in court, and fully developing all the injury issues, we have obtained a gross settlement of $20,000. That client will net over $14,000, and we are still pursuing another party who bears partial responsibility for the accident.

The morale of this story is that before you sign a release, and forever waive your rights, you should have a qualified accident attorney review the proposed settlement. More often than you might think, you can come out substantially ahead for taking the time to do so.

Thursday, December 23, 2010

The insurance industry smear campaign against lawyers and the trial justice system

Here in Montana, we are about to embark on another legislative session. This session will be dominated by a Republican controlled state house and senate. We need to watch out for so-called 'tort reform' bills that will be inevitably headed our way.

What is 'tort reform'? It is an insurance industry sponsored attempt to re-write the rules of how accident and injury cases are handled in the courts.

A few years ago, our Montana Legislature enacted a law capping 'non-economic' damages in medical malpractice cases at $250 thousand per case. This means that even in the most horrific case, and injured person can't get more than that amount of 'pain and suffering' or 'emotional distress' damages. Even if a young person will have excruciating pain for fifty years, those damages are capped at $250 thousand.

Now we can fully expect similar proposals to change the law in auto accident and other tort cases in Montana. Already several bill draft requests appear designed to head in that direction. See
All Montanans should be very worried about these insurance friendly proposals. If you or a loved one are hurt in an accident, you should get full, fair compensation that truly reflects your actual damages. We do not need artificial caps on the amount of damages.

There is a huge amount of propaganda about large jury verdicts. First of all, they are much more rare than you would think. When one actually happens, it is always a big news story. When smaller verdicts, or defense victories, occur, they barely make the news at all. Secondly, when a large verdict is handed down, the insurance industry often distorts the facts to leave out a clear explanation of why a jury awarded such a large verdict.

The truth is that we have an adversarial process with fair rules. Both sides get their say in a lawsuit, and believe me, the insurance industry doesn't hold back. After the big fight in Court is over, if a jury awards a large amount, it is well deserved.

All of us should vigorously oppose any so-called tort reform.

Tuesday, August 17, 2010

Sorting through the internet to get legal help

Several times in looking at the effectiveness of my own law firm's advertising (Grayson Law Firm), I have done sample searches on the Internet to see if my ads show up. I have spoken with several Internet marketing firms, and have become quite disillusioned with Internet advertising.

There are firms that pay thousands of dollars a month to try to capture your search on Google for 'Montana accident lawyer' or 'car wreck attorney' or some similar variation. It is big business, and I am not sure the injured victim always wins.

Do these firms really give people personal service, honest advice, and timely responses? I don't know, but I do think there are some important questions to ask about:

1. Will my case be handled by the named partner or a young associate? Many large firms farm out the work on their numerous cases to young lawyers fresh out of law school, who learn on the job. If I were hurt, I would want an experienced lawyer who has trial experience to handle my case.

2. How many cases does the lawyer have open right now? Many firms have too many open cases, and do not devote enough time to each case.

3. How much turn over in attorneys and support staff does that firm have? If people are quitting and new staff hired all the time, how can you develop a rapport with the lawyer or the firm?

4. Is the lawyer you speak with just telling you what you want to hear, or is he telling you the truth? Hard to know the answer to this one at first, but there is nothing better than finding a lawyer with personal integrity, and nothing worse than one without it.

Thursday, April 15, 2010

Whiplash for $200 anyone?

This week a new client told me that their insurance adjuster said they would only be paid $200 for their whiplash, and that was the standard amount.

What? At first I thought my client was kidding me, but he was not. I have not fully investigated this case, but I do want people to know that there can be no 'standard' settlement amount for a whiplash claim. Each case will vary according to the nature, duration, and extent of the injury.

Whiplash is a serious injury that happens by the backward and forward movement of a person's head due to sudden acceleration or deceleration of a vehicle involved in a collision. The pain may be due to the sudden strain on the neck muscles or ligaments which sometimes produce muscle spasm. Whiplash injury can be very painful, and the person may suffer long term pain.

It is also not at all unusual for whiplash pain to first develop from hours to days after the accident.

Unfortunately, whiplash has been stigmatized by the insurance industry. People who actually have whiplash are made to feel like malingerers, even though they are truly suffering. I have had several people tell me that they never put any stock in whiplash claims until they had a whiplash injury of their own, and now they know it is real.

It is important to get medical treatment if you have pain in your neck, shoulders, or head after a car accident. It may in fact turn out not to be serious, and may just heal on its own. However, it may be something more serious, that will need to be treated by a physician.

Wednesday, March 10, 2010

Do I really need a lawyer to handle my car accident case?

So you've been hurt in a car accident, and some people are saying that you shouldn't hire an attorney. Why pay the fees? You can do it yourself...

Is that true?

The longer I have been representing people in accident cases, the more clear it becomes to me that about 95% of the population is better off hiring a qualified attorney to represent them. Why?

1. Experience in valuing a case. Attorneys that have worked in this area for any length of time learn how to properly value a case. We can look at the history of local jury verdicts and prior settlements on similar cases. We know in detail how insurance companies value your case, and how to get the maximum value from your case.

2. Ability to sue. Very few people who are not lawyers can properly handle civil litigation. The implied threat to sue, the ability to prepare a Complaint properly and get it filed and served, explains why case values go higher when lawyers get involved. Insurance adjusters know that once a lawyer has signed onto a case, we will not hesitate to sue if they won't pay fair value. Hence, offers tend to rise, and get closer to 'fair'. Still, it is not at all unusual to have to sue to get full value.

3. Knowledge of insurance laws and rules. Did you know that for certain types of claims, in Montana you can legally 'stack' benefits higher depending on how many vehicles are on the policy? Do you understand insurance 'bad faith' rules thoroughly? Those rules explain what are, and what are not, allowable insurance industry practices, and if you don't understand them, you are at risk of being taken advantage of.

4. Do you know how to make a claim for advance payment of medical or lost wage costs without being forced to settle the entire claim? This tactic if often crucial to avoid being forced to accept a premature settlement. In Montana, this can be done in any clear liability case by a qualified attorney.

I could go on and on, but suffice it to say that it is almost always worth consulting with a good lawyer. Most do not charge for initial consults, and most will agree to work on a contingency fee basis. That means you need no cash up front, and that the lawyer's fee is based on whether the claim is successful, and the amount of the settlement.

One final note: although the insurance adjuster may be friendly and seem to be on 'your side', please keep in mind that their job is to minimize the amount of money paid on claims. Period. They are friendly only when that tactic works to get you to settle on the cheap. Please be careful if you represent yourself, and get lots of advice from others, and learn as much as possible before signing anything. Once you sign a settlement, remember that you are done forever. The claim can probably not be re-opened, and if further complications develop, you will be out of luck.

Mike Grayson
The Grayson Law Firm