Settling for policy limits in wrongful death cases:

My philosophy for prosecuting wrongful death cases is that we start with the assumption that we will get all the available money.  The reason for this philosophy is simple:  the premature loss of a loved one at the hands of a negligent actor is one of the most painful, if not the most painful, experiences a human being can suffer.  No amount of money is enough, so the most obvious place to start is by expecting to get all of the available money.  Usually, that means we demand the full policy limits of all available insurance coverages.  Not all cases settle for the policy limits, but it’s usually the best place to start.

As the wrongful death attorney, I then ask myself what I need to do to convince the insurance carrier to pay the full policy limits.  What evidence do I need to present?  I start with the evidence regarding liability.  The severity of the defendant’s carelessness is a huge factor in the value of wrongful death cases.  Jurors are more interested in punishing wrongdoing than in compensating victims.  If they can punish the wrongdoer by compensating the victim, they are happy to do it.  If I can prove that the defendant violated one or multiple rules intended to protect innocent people, the case’s value increases.  

In trip and fall cases, I’m looking for building code violations or violations of a store’s safety policies and procedures. In car accident cases, I’m looking through the Florida Statutes for the rules of the road violated by the defendant, and I’m establishing to the greatest extent possible that the defendant violated the rules of the road knowingly while knowing that somebody could get hurt.  If it’s a trucking accident case, I’m looking at the Federal Motor Carrier Safety Regulations for violations of the many regulations put forth by Congress to protect the public from trucking crashes.  Again, I seek to prove the defendant not only violated the rules, but did so knowingly and knowing that somebody could get hurt as a result.  I build this evidence using expert witnesses and taking the depositions of the bad actors and corporate representatives of the businesses I’m suing.

At the same time, I build the evidence related to my client’s damages.  I like to get video and photo evidence of the memorial services.  As a lawyer prosecuting the case, I can pay for that service as long as it’s to be used for legal purposes.  I encourage my client to consult their pastor, priest, or other religious leaders, and I encourage my client to seek counseling with a grief counselor.  I go to my client’s house and look through their photo album, their closets, and their bedrooms, and I gather any evidence I can to show the extent of my client’s pain and suffering.  I interview witnesses who know what my client has gone through.  Often I hire a company to create a documentary detailing my client’s story.  I present all of this evidence to the insurance carrier with a demand for the policy limits, and if they don’t pay, I keep pressing, getting more evidence, and pushing the case closer and closer to trial.

I’ve found that the closer a trial date comes, the more likely it is that the defendant’s insurance carrier will pay the full policy limits.  At some point, I like to give them a final offer, one last chance to pay the full policy limits before we go for what’s called an excess judgment, a judgment greater than the policy limits.  If we give the defendant a fair chance to settle for the policy limits and they fail to do so when they could and should have, the insurance carrier could be held in bad faith, and they may have to pay the entire judgment regardless of the policy limits.  When and how to relay the final offer to settle for the policy limits depends upon the circumstances of each case.

If you are considering pursuing a wrongful death case, I highly encourage you to contact an experienced wrongful death attorney immediately.  Evidence tends to fade or disappear with time, and these cases live or die based on evidence.  An experienced attorney can start investigating the underlying facts of the case immediately and can also initiate the process of building the evidence to prove your damages.


Jimmy Fasig

Wrongful Death Lawyer

Fasig Brooks Law Offices