1010 Market Street, Suite 950 St. Louis, Missouri Peter B. Hoffman

Transcription

1 1010 Market Street, Suite 950 St. Louis, Missouri Peter B. Hoffman

2 Missouri Settling Cases Settlement of Personal Injury Claims From Defendant s Perspective

3 A. Defendant Representative Basic Philosophy: Evaluate claim as early as practicable. Terminate litigation against all affiliated insureds. Partial settlements may foster further litigation.

4 B. Negotiating the Settlement 1) Timing a) Defense counsel usually not retained until lawsuit filed; b) Unproductive until Plaintiff is ready to negotiate; c) Defense needs basic information before settlement; d) No magic time to settle;

5 1)Timing (contd.) e) Mutual uncertainty can be helpful; f) Defendant avoid suggesting fear of trial.

6 2) Understanding the Opponent a) Don t disrespect claim professional; b) Basic information is prerequisite for Defendant; c) Cooperation can benefit both sides; d) Know your opponent.

7 3) Preparation a) Understand nature of claim (writing): i) What theories are being emphasized; ii) Obtain essential facts to assess liability; iii) Venue where accident occurred;

8 3) Preparation (contd.) iv) General nature of injury; v) Medical records can affect liability evaluation; vi) Medical records can affect injury evaluation.

9 4) Plaintiff s Records a) Raw records vs. canned report; b) Treaters vs. frequent fliers ; c) Hospital, treating provider, therapy; d) Wage loss & future lost earnings; e) Bills paid, written off, pending.

10 5) Evaluating Liability a) Nature of claim (legal theory); b) Nature of fact pattern; c) Any aggravated liability; d) Comparative negligence/fault? e) 3rd Party/Co-Defendant contribution?

11 6) Evaluating Injury a) Nature of injury? b) Causation issues? c) Pre-existing or subsequent injury? d) Healed; Healing? e) Future care needed?

12 6) Evaluating Injury (contd.) f) Permanent? g) Disfiguring? h) Disabling? i) Pain and suffering?

13 7) Evaluating Potential Damages a) Bills for treatment; b) Type of care chiropractic? c) Specialists vs. frequent fliers; d) Excessive diagnostic studies; e) Any gaps in treatment?

14 (7) Evaluating Potential Damages (contd.) f) Wage loss how well documented; g) Other types of damages? h) Possibilities for Voc. Rehab? i) Consortium claim? j) Work Comp; Hospital; Medicare/Medicaid liens?

15 8) Making an Offer a) Tone be professional, respectful; b) In writing (plain speaking); c) Include all conditions (liens); d) Specify any deadline or time frame; e) Keep record of all offers;

16 9) Considerations during Negotiation a) Negotiate only with existing authority; b) Maintain civil relations with opponent; c) Promptly communicate all demands; d) Maintain complete negotiation record; e) General Release preference;

17 Considerations during Negotiation (contd.) f) Confidentiality 1) Specify what is to be confidential; g) If Negotiations Break off: 1) Document last demand & offer; 2) Maintain communication with opponent;

18 11) Possible Issues: A) Partial Settlement Statute ( ) Partial settlement must be in good faith; Settlement reduces judgment against other tortfeasors; Settlement discharges settling parties only from: Contribution claims or tort indemnity claims.

19 B) Prejudgment Interest R.S.Mo. Available in tort actions i) Demand must comply with statutory requirements ii) If Judgment exceeds prejudgment interest demand, interest awarded on complete Judgment iii) From triggering date to date of Judgment

20 B) Prejudgment interest demand: 1) In writing, Certified Mail Return Receipt; 2) Include affidavit of claimant describing: a) Nature of claim, injuries & damages; b) Must include supporting documentation; c) List of medical providers & employers;

21 B) Prejudgment interest demand (contd.): 2d) Include signed authorizations; 2e) Specifically reference the section; and 2f) Must be left open for 90 days. 2g) Strict compliance is required: Hawley v. Tseona, WD76358, ( )

22 C) Minor s Settlements 1) Require court approval if under 18; 2) Without court approval are voidable by minor; 3) Court approval trumps parental consent; 4) Conservatorship required over $10,000 to minor; 5) Begin with Chapters 475 & 507 R.S.Mo.

23 D) Wrongful Death Settlements 1) Hierarchy of claimants ( ); 2) Require Court approval ( ); a) Cut off unasserted claims; b) Apportionment of funds if no consent.