Insurance coverage in personal injury trials – What you need to know in Georgia
Typically in a personal injury trial, a deliberating jury will want to know about insurance. Specifically, the jury wants to know if the negligent defendant has liability insurance and, if so, how much. The jury also wants to know if the injured victim has health insurance to help compensate for the medical expenses incurred due to the defendant’s misdeeds.
Whenever the jury’s questions about insurance come out of the jury room to the judge, the answer is the same, “The jury cannot consider the issue of the parties’ insurance coverage.” Why is this so? Georgia law prohibits the jury from knowing anything about insurance because there is an ill-founded concern that if juries could learn information about a defendant’s insurance coverage (which would relieve a liable defendant from having to actually pay out of his own pocket for his personal negligence) awards would be unreasonably high in favor of injured parties. Conversely, jurors cannot know about a plaintiff’s health insurance coverage because they will assume (erroneously) the plaintiff’s medical bills have been covered and therefore there is no need for an award for such damages.
The Dow Firm, P.C. has a strong record of holding negligent defendants and their insurance companies responsible for their actions. The Dow Firm, P.C. has secured over 50 million dollars ($50,000,000) in judgments and recoveries in serious injury and wrongful death cases in a little over a decade. You can contact The Dow Firm, P.C. at (912) 264-1919 or (800) 557-JDOW or receive a free case evaluation by accessing this page and filling out the 1 minute form.
Several things must be understood about the dynamic of a personal injury action and, in particular, insurance coverage matters.
A defendant’s insurance information is actually revealed in jury selection
In a personal injury case in Georgia, before a jury trial commences, the presiding judge will ask the potential jury panel questions during jury selection about their affiliations with particular insurance companies. The reason for this questioning is to identify whether any jurors have insurance or stock holdings with the on-trial defendant’s insurance company. If a juror has an interest in the same insurance company that is providing coverage to a negligent trial defendant, the juror will have to be excused from consideration due to a conflict of interest. As such, if you are called for jury duty in a personal injury case where the defendant has insurance, the jury selection process itself will likely reveal the fact the defendant has insurance and with whom the defendant has insurance.
In almost every personal injury case the defendant has insurance
In almost every personal injury case tried before a jury, the defendant has insurance. The jury is just prohibited from knowing about it and for that reason the attorney for the injured party cannot bring the existence of the defendant’s liability coverage to the jury’s attention. Given the cost of litigation, however, it is fair to expect that if an attorney is representing a defendant at trial in a personal injury suit, the defendant has insurance and his defense is being provided by his insurance company’s preferred attorneys.
Personal injury victims with health insurance have to reimburse their own insurance companies
In almost every personal injury case tried before a jury, if an injury victim does have health insurance which has paid injury-related medical expenses, any recovery for these expenses will have to be paid back to the victim’s healthcare insurance company. This reimbursement scheme is called, “subrogation” which is a formal way of saying, “double-dipping”.
This is an absolutely true characterization, because while the insurance company is entitled to repayment from an injury victim’s recovery, the insurance company is not required to reimburse the injury victim’s monthly premiums. In other words, before and after the time of a plaintiff’s injury, the health insurance company is permitted to collect the injured plaintiff’s insurance premiums (in contemplation of the plaintiff needing healthcare). Then it also gets reimbursed out of the jury’s verdict for the medical expenses it (the insurance company) paid for which were caused by the negligent defendant. Basically the healthcare insurance company gets paid twice and the personal injury victim gets nothing in return for his/her premium. What is more, the healthcare insurance company gets to collect its money free of charge, thanks to the efforts of the plaintiff and his/her attorney. Incredibly though, there is no downside for the insurance company. If a victim and his attorney advance their time and money and lose a case at trial, the insurance company (which would have sought reimbursement from a recovery) does not have to share the burden of an unsuccessful litigation.
This is can be especially onerous on the plaintiff when, after waiting years for trial and after counsel has expended countless hours and several thousands of dollars in litigation expenses, a jury issues an award of just medical expenses. In such a case, a jury (which unwittingly believes an award of medical expenses will help restore the victim to his/her place before the injury) has actually done little to nothing to address the victim’s losses.
The defendant’s attorney is paid by the insurance company to represent the defendant and the defendant does not have to pay out-of-pocket for the legal representation or the jury verdict in favor of the injured plaintiff
In almost every personal injury case tried before a jury, the attorney for the defendant has been paid (and will continue to be paid during and after trial) regularly and at a definite hourly rate by the defendant’s insurance company and the defendant will not have to personally pay any legal fees. As such, a defendant faces no real burden for ongoing legal fees and a defense attorney faces no financial risk in handling the case for as long as a matter may exist. As long as a case is active, a defense attorney can expect that his fees will be paid. This stands in stark contrast to the method of payment that an injured person has with his lawyer.
The contingency fee method is the only realistic and fair way for injured parties to secure legal representation
Most injured parties hire lawyers on a contingency fee basis. Under such an arrangement, someone who is hurt is able to secure representation without paying a lawyer “up-front” and “out-of-pocket”. With a contingency fee, the attorney agrees to receive delayed payment (if at all) for the present provision of legal services. Payment is ultimately made in the form of a percentage of the amount recovered for a client. Typically contingency fees range between 25% and 40% of a client’s gross recovery and the fixing of a lawyer’s fees depends upon factors such as the nature and complexity of a legal matter, the costs of pursuing a given legal matter and the likelihood of recovering for the client in a legal matter. Unlike defendants who are provided legal representation funded by their insurance companies, after an accident injured parties ordinarily do not have the luxury of appointed legal counsel waiting at-the-ready. Conversely, the insurance company adjusters and their stand-by lawyers often spring into action to gain advantage in a case against an unrepresented person who has been hurt.
Legal services and litigation costs can be expensive, so many people who have been injured cannot afford to fund claims against insurance giants to receive due compensation for their losses. When dealing with mounting medical expenses and diminished income from work (missed due to injuries), a personal injury victim is typically not in a position to pay a lawyer by the hour. If an injured person had to choose between food, shelter, medical care and a monthly legal bill, the priorities would stack-up in a way that the victim’s legal rights would have to come last. In other words, healthcare for painful injuries and feeding oneself to avoid starvation is paramount. This is where the utility of the contingency fee arrangement is apparent.
Contingency fee arrangements are extremely risky for plaintiffs’ lawyers
Under this financial arrangement, a plaintiff’s lawyer will be paid a fee only if and only when his client secures a recovery. This makes plaintiffs work especially risky. To be clear, there is absolutely no guarantee a plaintiff’s lawyer will actually be paid for his representation of an injury victim. While the insurance industry tries to poison public perception by suggesting trial lawyers are “greedy,” the reality is that attorneys who handle plaintiffs’ cases are very courageous and willing to believe in their clients, themselves and the jury system. Further, they are truly committed to the principle of justice for all. Before one believes the insurance industry’s propaganda about plaintiff’s lawyers in general, it is essential to understand that a personal injury attorney essentially works for free until the client recovers. Ask yourself how many people you know who would go to work for years at a time without being paid and without the guarantee that payment was ever going to occur despite years of labor? After that, consider how it feels knowing the fate of an injured person’s future rests in your hands and that your law firm’s investment and dedication to a case will be ultimately entrusted to twelve (12) complete strangers – jurors – to decide the value of your client’s compromised life and your years’ worth of work in just a matter of days. That is the everyday reality in the life of a victim’s advocate.
What makes this fee arrangement even more daunting is the fact that plaintiffs’ lawyers must invest not only their time but also their own money in their clients’ cases. So, in addition to not being paid for legal services until the resolution of a claim, a claimant’s attorney will usually end up advancing substantial amounts of litigation expenses (often in the tens to hundreds of thousands of dollars) just to get the case ready for a trial. Bills for witness fees (especially experts who charge hundreds/thousands per hour depending upon a given specialty), deposition costs, cross-country travel expenses and the like are funded by a victim’s lawyer just to bring the truth before a jury. This litigation financing can go on for years and can ultimately go unreimbursed if a jury finds in favor of a defendant or issues a verdict that is less than full compensation to a client. This is the truth the insurance propaganda machine does not readily distribute. Nevertheless, the prospect of a jury believing the insurance industry’s spin about “greedy” trial lawyers filing “frivolous” cases is a reality and risk bravely and proudly accepted by lawyers who work on a contingency fee basis in championing citizens’ rights.
As such, if an attorney has taken a case to trial for a client it is fair to expect that the lawyer truly believes in the client and the case. After all, in almost every personal injury case tried before a jury, the plaintiff’s lawyer experiences diminishing returns the more he works on the case.
Recognizing the financial dynamic at play in the attorney-client relationship for an injury victim who has to battle an insurance company tends to give folks a different appreciation of the contingency fee arrangement and the lawyers who utilize them.
An insurance company’s tactic of low-ball settlement offers that forced a plaintiff to trial is hidden from a jury
Another insurance-related secret kept from juries is an insurance company’s history extending insufficient settlement offers. Simply stated, if a case ends up at trial, it is likely the insurance company has been unreasonable in the handling of the claim (by making low-ball offers to settle in hopes of frustrating the plaintiff into submission). In fact, some insurance companies have been proven to have organizational strategies designed to prey upon the financial and physical disadvantages of personal injury victims by stalling the resolution of cases and forcing victims to survive on the modest means their compromised circumstances can allow. (See, for instance, AAJ Report: Ten Worst Insurance Companies in America and Auto insurers play hardball in minor-crash claims from CNN.com – February 9, 2007).
Many times a victim will succumb to the financial and emotional pressure caused by their tragedy and finally agree to settle a case on the insurance company’s terms just to try to make ends meet for the short term. However, some victims and their lawyers remain determined to outlast the delay tactic and, on principle, bring their cases before juries. When that happens, a plaintiff should be completely compensated for all damages, otherwise it is a victory for the insurance company and a reward for its intentional plan to thwart justice. The insurance industry’s thought process is that the more it makes claimants work to get fair compensation for their losses, the more claimants’ lawyers will become discouraged, refuse to fight and encourage their clients to just settle for what is offered. By design, insurance companies often consciously elect to waste court resources, string injury victims and plaintiffs’ attorneys along and gamble with trial juries in hopes of saving money on claims to realize increased profits.
The Dow Firm, P.C. understands the insurance industry and specializes in motor vehicle, healthcare, premises and other injury and death claims. If you have a case, contact us via this quick form or call (912) 264-1919 for a free consultation.