Personal injury law provides a pathway for individuals who have suffered damages due to others’ actions or failures to act, and oftentimes may pursue compensation through the court system. Many personal injury claims, however, are actually settled outside of court, often between the injured person and the insurance company of the party the injured person considers responsible for their injuries. Not every personal injury case will involve insurance negotiations, but discussions with insurance companies are very common in some of the most familiar types of personal injury cases, with driver liability insurance featuring prominently in many car accident cases and business liability insurance often playing a role in settling premises liability claims.
Additionally, insurance adjusters deal with claims every day, so knowing what to watch for in their response to a claim can provide important clues to how strong the adjuster believes a case to be. Personal injury attorneys are also in a position to assess the relative strengths or weaknesses of a personal injury case, and having a dedicated personal injury lawyer on your side can prove an invaluable asset as you weigh your options for pursuing a claim. To schedule a free case evaluation with Shillen Mackall Seldon & Spicer, call (802) 457-4848 to reach our offices in Florida, New Hampshire or Vermont.
What Is the Meaning of “Personal Injury Case”?
Personal injury cases generally fall within the area of law known as civil torts. A tort, according to Cornell Law School’s Legal Information Institute (LII), is an action or failure to act by one party that does harm or injury to another party, with “harm” referring to a “loss or detriment” and “injury” defined as the invasion of a legal right. Personal injury cases deal with both harms (losses or detriments) and injuries (adverse impacts on the affected party’s ability to enjoy one or more of their legal rights), and the torts law under whose auspices they are handled is “civil” in that legal actions over civil torts are filed in civil courts, by plaintiffs (or by legal counsel on a plaintiff’s behalf), rather than prosecuted by the government (state or federal, depending on jurisdiction) through the criminal court system.
Persons, Harms, and Injuries
A personal injury case does not necessarily need to involve physical wounds; plaintiffs in personal injury lawsuits frequently allege financial harms, rather than bodily ones. Another definitional peculiarity that often takes people by surprise is that “personal” can refer to a legal entity (corporations in particular are noted for enjoying the status of “person” for certain legal purposes) in addition to the ordinary human being kind (known as a “natural” person when the legal context calls for clarification). A “personal injury” case arises when one legal person alleges that they have suffered some form of loss or “detriment” (often characterized by suffering), or some infringement on their exercise of a legal right, resulting from another party’s tort.
Grounds for Personal Injury Actions
LII describes three “grounds” (bases) for legal action in a personal injury case. These grounds include:
- Strict liability
- Negligence
- Intentional tort
Negligence tends to dominate the personal injury landscape – but some situations, such as certain types of product liability claims, may call for the application of strict liability, and there are occasional situations in which it is appropriate to proceed on the grounds of intentional tort. These types of distinctions are most important if the personal injury case goes to court, but in practice many personal injury cases are settled without legal action.
An action in legal contexts usually means a court filing; typically, in a personal injury lawsuit, this would be the initial “complaint” filed by the plaintiff, or by an attorney on the plaintiff’s behalf if the party alleging personal injury has retained professional legal counsel. If there is no legal action, there is no plaintiff, but there may still be a claimant – a party who seeks to claim compensation for harms or injuries they claim to have suffered as the result of another party’s negligence, strict liability, or intentional tort.
Cases vs. Actions vs. Claims
The word case may be used in two ways. In formal legal terms, it functions as a synonym for “action” and refers to legal proceedings through the court system – in the context of a personal injury case, this would be the civil court system. Less formally and especially outside the legal profession, “case” has a more general meaning as an instance or example (as in “use case” or “case study”), but also as something close to what legal professionals are more likely to call a “matter”: a situation at hand or under discussion. All cases (under either the broader or the narrower definition) are matters, but not all matters are cases in the legal sense – a personal injury matter becomes a personal injury action, and a case in the legal sense, if the “matter” proceeds to a court filing.
Generally speaking, the plaintiff in this court filing will seek to make a claim for damages – but the pursuit of damages is also called a “claim” when the alleged victim seeks compensation from the party they hold responsible directly, without filing a legal action (and opening a court case). This circumstance is very common in motor vehicle accidents, for which the first step (after seeking medical attention and getting estimates for vehicle repairs and the like) is usually to file a claim with the responsible driver’s auto insurance provider. This type of personal injury claim may not proceed to court if the claim is undisputed and the insurance company is willing to cover the full estimated amount.
Insurance Adjusters and Personal Injury Claims
Besides car accident cases, insurance companies often play a role in several other types of personal injury cases, including premises liability (notably “slip and fall” accidents, but there can be a variety of other types of premises liability claims that may be handled by an insurance company) and sometimes medical malpractice lawsuits. The “adjusters” who work for these insurance companies see personal injury claims every day, and it is their job to evaluate the validity of each claim and assess the accuracy of the claimant’s estimate with respect to the amount requested as compensation.
If the insurance company to which you submit a personal injury claim seems eager to settle your claim quickly, out of court, that can be a sign of a strong personal injury case, should you wish to proceed to legal action. There are always variables that depend on the circumstances of the specific situation, but generally speaking, the more willing the insurance company is to pay a substantial amount in compensation, and the less the company attempts to dispute the estimate presented, the more likely it is that the adjuster believes the claimant’s personal injury case is strong, and likely to succeed if the matter goes to court.
Professional Case Evaluation by an Attorney
Unfortunately, another important part of an insurance adjuster’s job is minimizing both the number of claims the company is obliged to pay and the amount paid out for each claim. While insurance companies are often willing to come to a settlement agreement that avoids the potentially substantial expense of a protracted legal battle through the civil court system, these organizations are by their nature not in the business of pursuing justice for its own sake, and their interests typically run directly contrary to those of the person filing a personal injury claim. For these reasons – even if you feel that you are making good progress with an insurance company – you may wish to consider getting a professional evaluation of your personal injury case by an attorney who practices in this area of law.
Many people outside the legal profession are not aware of this fact, but most personal injury attorneys in the United States practice on what is known as a “contingency” basis. The “contingency” is winning the case, and a lawyer operating on a contingency basis is usually paid via a portion of the damages awarded when their client wins in court or achieves a satisfactory settlement through negotiations with the other party. If the client loses their personal injury case, the lawyer receives nothing – meaning that personal injury lawyers are understandably reluctant to take cases they consider unlikely to succeed. The personal injury attorneys with Shillen Mackall Seldon & Spicer also offer free case evaluations in Florida, New Hampshire, and Vermont – so personal injury victims can take advantage of an experienced lawyer’s assessment of the relative strength or weakness of their case.
Other Indications of a Strong Personal Injury Case
Besides relying on feedback from insurance adjusters and personal injury lawyers, there are a couple of other ways to estimate whether you may have a strong personal injury case. Understanding your state’s laws concerning liability may be especially helpful, as these can play a role in determining not just your eligibility to pursue compensation in court, but the amount you are able to receive as the result of a favorable verdict.
As the American Bar Association (ABA) explains, liability and damages are the two central components of a personal injury case – liability is the defendant’s legal responsibility for the harms or injuries the plaintiff has suffered, and “damages” are the compensation (usually financial compensation) awarded to essentially make up for the injured party’s losses or the infringement of their rights. New Hampshire, Vermont, and Florida all use versions of the “comparative negligence” or “contributory fault” doctrine, which holds that a plaintiff in a personal injury case who is deemed to have been partially responsible for their own damages may still pursue legal action to recover compensation, but the amount of the total award must be reduced by the degree of the personal injury victim’s own responsibility. States using any version of the “comparative” rubric for determining liability typically apply a cutoff point at 51% – a victim who bears more than half of the responsibility for his or her own situation cannot receive an award of compensation in these states.
Schedule a Free Consultation To Learn More About Your Legal Rights
Personal injury law can be complex, particularly when questions regarding determinations of comparative negligence or contributory fault come into play. The frequency with which personal injury cases are handled outside the courtroom can add another layer of complexity, as negotiations with insurance adjusters and even with responsible parties directly can raise numerous concerns regarding the accuracy of estimates of long-term expenses related to the damages a personal injury victim has suffered. Arriving at accurate estimates for personal injury claims involving bodily harm can be especially complicated, as it may be difficult to determine an individual’s long-term prognosis after sustaining a physical injury.
To seek assistance determining whether you have a strong personal injury case, consider scheduling a free case evaluation with Shillen Mackall Seldon & Spicer. Our experienced personal injury team regularly handles cases in Vermont, Florida, and New Hampshire, and we are committed to helping individuals who have suffered as the result of other parties’ negligence seek fair compensation for their damages. Call (802) 457-4848 today to set up a meeting with one of our attorneys near you.