Tort Story 2

Names and other personal data has been changed for privacy regulation, and these may or may not be current or former clients.

Andrea

Andrea was so excited back in 2009. After an ugly divorce and living in a crappy apartment for a few years, her and her new boyfriend finally purchased a home to live in together. It was similar to the layout of the apartment, but with one key difference. In the old place, Andrea would walk out of the bedroom and make an immediate right to the bathroom. In the new place, the bathroom was straight across the hall. Well, sure enough, a few months after moving in, Andrea woke up in the middle of the night and made the wrong turn. To the right in the new house was the basement stairs. She took quite the tumble. After a 3 am emergency room visit she was out of work for a couple days and on muscle relaxers for the soft tissue neck injury, with full recovery in about 10 days.

Fast forward to 2012 – Andrea is driving to work on a busy two-lane road on New Year’s Day. She crests the hill to see a garbage truck stopped and a worker loading trash into the back. She stops to wait, hoping it won’t make her late for her shift. Coming up behind her stopped compact car is a midsize sedan that is not slowing down. All she could think about was smushing the worker in the crash. She cut the wheel left and braced for the impact. She was hit so hard that she not only crossed the lane of oncoming traffic, but went 10 feet off the road and landed against a fence. Her neck immediately began to ache, and she ended up heading to the ER in an ambulance. Here, the force of that impact brought back that old neck injury, and significantly worsened the damage. Andrea now has migraines and neck pain continually, and misses several days of work per month with FMLA. FMLA is unpaid time off.

With limited tort, Andrea would only be able to recover the medical bills for the ER visit, the time she missed from work, and the cost to replace her car, as it was a total loss. With full tort, Andrea could obtain monetary compensation for loss of future income earnings, estimating the days she misses from work unpaid for the years she has left before normal retirement age.

Andrea did have the full tort option on her insurance when this accident happened, but she decided not to recover nonmonetary damages. She truly believed the young woman who hit her just made an honest mistake, and she didn’t have very good insurance, so Andrea felt bad at the thought of the young woman’s wages being garnished or a judgement being assessed. You see, just because you have the right doesn’t mean you have to use it.

Tort Story 1

Stories and examples

Names and other personal data has been changed for privacy regulation, and these may or may not be current or former clients.

Charles

Charles was in a car accident in March last year.  He was hit by a tractor trailer in his small pickup truck.  The truck ended up in 3 pieces on the road.  Thankfully, Charles was not ‘seriously injured,’ as in he was home after 4 days at Prime Hospital and back to work about 2 months later (he has a manual labor job) and to look at him now he’s just fine.  However, he sustained injuries to his lungs and diaphragm, which have required several procedures, and we just learned that the damage from the accident and necessary surgeries have decreased the range of motion in his diaphragm and caused him to develop asthma.  Normally we would call that lucky and move on.  Here’s the thing…  Charles is super athletic, and was signed up for a half Ironman that same summer.  At over 55 years old.  Not only did he have to cancel that ‘bucket list’ item, but with his current lung/breathing conditions, he’ll never be able to do that.  He trained for literally years to get to the point that he could run, bike, and swim that event.  He’s pretty devastated.  This also takes away his ‘stress relief’ activity from his life.  He’ll need to find a sedentary hobby now.  We aren’t sure what that will be.

With limited tort, because Charles isn’t seriously injured, he would only be allowed to get money for the actual medical bills incurred, the money his truck was worth, the time he missed from work, and the fees he lost canceling his trip.  With full tort, he can also receive monetary compensation for the mental anguish of not being able to do his favorite activities, not being able to run 1 mile let alone 26.2, and some pain and suffering for the year plus of doctor visits and procedures.

So, what’s happening and what did Charles have?  Charles had a very good full tort insurance policy. Charles also hired a very good personal injury attorney pretty much immediately.  Not that he had a bad insurance provider, but with so much happening you just want in those really serious cases a third party, and it doesn’t hurt that they get paid when you do.  The case is not settled as of writing this blog. It likely won’t end up with a $1,000,000 payout to Charles, but he will likely see a rather sizeable settlement that will certainly put his two young kids through college and catapult him into a more comfortable retirement.  Money doesn’t take away the pain of losing the ability to do what he loves, but he has his family to support and help him replace those hobbies – and let’s face it – the cash doesn’t hurt.

Tort Q & A

Questions and Comments from Clients:

I am not sue happy, so I don’t need full tort.

I would not define many people I’ve met as ‘sue happy.’ Tort is more about what is important to you. Things like facial scars don’t have monetary value. I’m not a very self-conscious person with my image, but if I developed a nasty scar on my face I might want some compensation for that. Makeup is something I don’t buy now, and from what I know that stuff isn’t cheap!

Would you feel differently if it was your child that developed that facial scar that they are living with for the rest of their life? Your kids get what you picked for them in car insurance until they are old enough to have their own policies!

What if I have limited tort and I’m paralyzed?

Remember in the definition there are some cases where intangible losses are able to be recovered. Serious injury is one of those. Here’s the problem. What exactly is serious injury, and who defines it? Unfortunately, it’s a gray area, and something that fluctuates from time to time. Sure, the biggies can be consistent, paralysis, loss of a limb, loss of eyesight, death, but what about things that are serious to you but not verifiable? Neck pain, back pain, migraines. There are no tests you can go have done that definitively shows you are having a migraine and what the severity is. It’s all in how you feel, which is subjective.

While we’re on the exceptions, let’s talk about the other few… First, if the at-fault driver is from a state that doesn’t have tort. This is just because counter-suing is a normal court practice, and since that other driver wasn’t given an option to select a limited tort, they are getting full so you do too. Second, if you are involved in a pedestrian accident. If someone bowls you over with their car, or even just bumps you, that is a full tort accident. Third, if the at fault party was committing a crime. I think of the big ones like DUI or evading policy, but, it’s still to be determined if they actually have to be charged with the crime and have it stick.

Am I stuck with whatever I pick forever?

Nope, not at all. You are able to change your selection at any time during your policy, except the day after something happens that you wanted what you don’t have. Changing the tort option requires a policy endorsement (our fancy insurance word for making the change) along with your signature on an acknowledgement form, and can only be updated moving forward from the day we speak with you.

What do you recommend?

Legally, we as insurance professionals are not allowed to tell you which one to buy. We can explain the policy language, give real life examples, and tell you what we do ourselves, but you have to make the decision on your own. If you still aren’t sure, have more conversation with your agent.

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