Settling Products Liability Claims
People who injure themselves while using a dangerous or defective product might assume that, if they sue, they'll have to appear before a judge in court. The truth is that more than 95% of these cases settle out of court. The odds of your case going to trial are very low.
This article will discuss how the settlement process works. It will also explain why many cases involving dangerous products settle rather than go to trial. Finally, this article will highlight why settling your case may be in your best interest.
Has Your Personal Injury Attorney Already Filed Suit?
The settlement process works differently depending on whether you've already filed your lawsuit. If you haven't sued the defendant(s) yet, your attorney can negotiate a settlement with the insurance company. If you already filed suit, you'll have to deal with the legal team representing the manufacturer or other named defendant.
Your lawyer will do what they can to avoid filing suit. Resolving your claim with the insurance carrier is much less expensive. However, you may have to press forward with a lawsuit at a certain point. If you don't file your legal claim within the statute of limitations, the judge will dismiss your case. If that happens, you and your product liability lawyer walk away empty-handed.
Your Attorney May Settle Your Product Liability Lawsuit Directly With the Insurance Company
Once your attorney notifies the manufacturer, distributor, retailer, or other party that you hurt yourself while using their consumer product, the company will turn the claim over to their insurance company.
The insurance adjuster will determine whether the claim is payable. If they approve your claim, you should receive your insurance check within weeks. If they refuse to pay or only offer to pay part of it, you'll have a decision to make.
You can either settle for a lesser amount or proceed with legal action.
Settlement Options if You've Already Filed Your Lawsuit
You must settle your legal claim with the defendant if you have already filed your lawsuit. This doesn't mean the insurance company won't be the one paying your settlement. It means that the attorneys representing the other party will be the ones to negotiate the settlement offer directly.
Your lawyer will ensure the settlement covers your out-of-pocket expenses and court costs. Ideally, you'll receive 60-80% of your total claim. However, your settlement amount will depend on several factors, including:
- The size of your claim
- The defendant's insurance coverage
- The seriousness of your injuries
- Whether you were partially at fault
- The amount of your medical bills
- The level of your pain and suffering
- The odds of you winning at trial
If the defendant believes you have a good chance of winning at trial, their settlement offer should be higher. However, given the resources available to corporations and other defendants in product liability injury cases, they may decide to take their chances in court.
Can You Also Settle a Wrongful Death Claim?
If your loved one died due to a dangerous or defective product, you may be able to file a wrongful death lawsuit. Your attorney will pursue the product manufacturer and other responsible parties for damages.
If you do file for wrongful death, your family or the victim's estate may recover some or all of the following types of damages:
- Economic losses, such as funeral expenses
- Loss of consortium
- Medical bills and hospitalization bills
- Money spent on prescription drugs
Each state has strict rules on who can file a wrongful death lawsuit. Make sure you meet with a personal injury lawyer before you make any final decisions.
Pros and Cons of Settling Your Injury Claim
Most of the time, your personal injury lawyer will encourage you to settle your case. There are many benefits of settling as compared to going to trial. This does not mean your attorney will force you to settle. One of the attorney-client relationship rules is that they must communicate all settlement offers and give you the power to accept or decline the offer.
Some of the benefits of settling your lawsuit include:
- It can take years for your case to go before a judge
- You run the risk of losing at trial, and you would receive nothing
- Trials are costly and time-consuming
- Evidence can become stale over time
- There is always the chance that the defendant may go out of business
- Your medical bills and other expenses will continue to pile up
When the defendant makes an offer to settle, your attorney may recommend whether you should accept it. You can go to trial if you don't feel the offer is fair. Your lawyer will remind you of the risks of going to trial before you decide.
How Long Does It Take To Settle Your Defective Product Case?
One question a lot of plaintiffs ask is how long it will take to settle their case. There is no simple answer to this question. Attorneys typically resolve these cases within a year or two. It may take your attorney longer if your case is complex.
If strict liability applies to your case, settling may take less time. The defendant knows you or your loved one doesn't need to prove negligence. If the evidence is strong, they may want to settle it sooner rather than later.
How Much Will Your Settlement Be?
Your potential settlement value will depend on your total damages. Determining your damages isn't as simple as adding up your medical bills and lost wages. Most states have specifically identified the types of damages that are allowed in product liability cases.
Generally, these damages can include the following:
- Medical bills and future medical expenses
- Lost wages and lost future income
- Property damage
- Pain and suffering
- Punitive Damages
It is rare for a judge to award punitive damages in a product defect case. The same is true if you sue for a manufacturing defect, design defect, inadequate label, or breach of warranty. You will not receive punitive damages unless your attorney proves that the defendant acted recklessly or indifferently.
Your product liability attorney will ensure that your settlement covers your economic damages. They'll gather evidence and hire experts if that's what it takes. They will do their best to secure you non-economic damages as well.
How Are Your Settlement Proceeds Distributed?
After you settle your case, your attorney will receive your settlement check. The law firm will deposit the check into their account. Once the check clears, the firm will distribute the settlement proceeds. The proceeds do not go directly to the plaintiff. Instead, your product liability lawyer will distribute the money in the order prescribed by their contingency agreement.
First, your lawyer will take their fee. For instance, if your agreement states that your lawyer takes 30%, and your settlement is $100,000, your lawyer gets $30,000.
Your lawyer will next pay your medical bills and any outstanding medical liens. When your private health insurance carrier (or Medicare/Medicaid) pays for your medical care, the provider may file a lien against your settlement. Unless your lawyer negotiates a reduced payoff, they must pay these liens and medical bills in full.
After paying your medical bills and other related expenses, you will reimburse the law firm for any costs and fees. These include the following:
- Copying fees
- Court costs and filing fees
- Expert witness fees
- Travel, lodging, and meals for witnesses
- Medical records fees
- Personal service courier fees
The remaining proceeds will be yours once the firm reimburses themselves for costs paid in your case.
The above section explains that you must pay any outstanding medical liens and bills from your settlement proceeds. This process is called subrogation.
Subrogation means that if an insurance company or employer paid a portion of your damages, such as for medical expenses or lost wages, the insurance company or employer can receive that money back when you settle. The idea is that it is unfair for you to get money to pay medical bills already paid by someone else.
The insurance company files a subrogation claim against your case in a typical situation. The subrogation claim states how much the insurance company paid for medical bills. Your insurers will know about the claim because you must send a notice of your claim to all potentially interested parties, including your medical or disability insurer and your employer.
These parties may attend the settlement negotiations to protect their interests. Sometimes, a settlement can exclude the insurer's or employer's interests by settling around those and allowing them to deal directly with the defendants.
Speak With a Product Liability Lawyer About Settling Your Claim
Settling a product liability claim is common, but it can be complicated. The companies you seek compensation from will have a team of experienced attorneys helping them during the negotiations. Because your settlement will most likely be a full, final, and complete settlement of your claim, you must ensure it's appropriate.
Consider speaking with a product liability attorney today. Most law firms offer new clients a free case evaluation. They may provide you with legal representation, with no up-front costs, if you have a strong case.
You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help
Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.
Contact a qualified product liability attorney to make sure your rights are protected.