Trial Guides author Nick Rowley recently obtained a $29.25 million settlement against State Farm Insurance for a motorcyclist after State Farm rejected a policy limits demand of $1.25 million and failed to protect its insured driver from litigation. This follows a $10.25 million settlement in December and a $2,551,000 settlement within thirty days of coming into another case where the insurance company had previously refused to pay a $300,000 settlement demand. As is often the case, Nick told us that much of the credit for these outcomes belongs to the other lawyers in his office, his co-counsel, and his staff.
Since we are interested in helping other lawyers obtain the best outcomes in their cases, Trial Guides asked Nick how he and his team are obtaining both record-breaking jury verdicts and such substantial settlements, regardless of the type of cases they’re handling.
First, we asked about the $29.25 million settlement for a moderate traumatic brain injury. If you have ever handled a mild or moderate traumatic brain injury case, or a case where your client was riding a motorcycle, you know that both of these types of cases create difficult factual scenarios. Read below to see Nick’s commentary on his two recent eight-figure settlements.
Nick on the $29,250,000 Settlement:
Steve Glass, the director of special projects at our office, along with my partners Paul and John, spent countless days with our client and his family over the past few years. The human work of caring, love, commitment, and not giving up or settling cheap that they put into it is what made this such a valuable case. If we hadn’t invested the time with the client and his family, the case wouldn’t have seemed as serious as it actually was—the client looked normal and there were allegations of speeding on a motorcycle that we had to deal with. Without Steve’s intensive workup on the case, it would have been worth a fraction of what we achieved.
The defendant claimed our client, a nineteen-year-old on a motorcycle, was driving twenty miles over the speed limit around a curve. The defendant made a left hand turn in front of him. Our client was diagnosed with a moderate traumatic brain injury based mainly on a loss of consciousness of more than thirty minutes. He didn’t need brain surgery, but he was hospitalized and observed for his moderate level TBI. He seemed “good to go,” walking, talking, and tying his own shoelaces when he left the hospital, according to the records. And at first, being young and having no experience with a brain injury, he was mainly upset that his motorcycle was totaled.
But the young man who came home from the hospital after the collision was a different person. That is where the human element of the case needed to be developed. This is where Steve did amazing work by spending time with the family, following the Trial by Human method, involving the right expert witnesses, and getting to understand the young man who woke up the morning before the brain injury compared to the young man who came home from the hospital. The differences were stark.
Neuropsychological testing and the proper case work-up showed a persistent traumatic brain injury. And this simple formula is what made the case worth so much:
• A jury instruction on a life expectancy of more than fifty years into the future
• Plus development of each of the items of noneconomic damages in the statute
• Plus the insurer knowing very well that I would try this case and swing for the fences
When your enemy knows you will go into battle prepared and do everything you can to win for a client you love, they are more willing to settle on your terms. That is why being a trial lawyer is important to getting full justice through a settlement.
The defense argued that our client had made a “remarkable recovery” and would be fine. The present value of our economic damages for supervision and life care ranged from $6 to $9 million. (The past meds in the case in total ended up being less than $200,000.) The defense claimed that since the case went on for as long as it did, and our client had lived without the life care plan, that he didn’t need it and of course they had lower numbers as their worst-case scenario. Our argument was that the family took care of him and if they were gone, our client would be living under a bridge or in the criminal justice system because of behavioral changes.
We demanded the insurer’s policy of $1.25 million early on, and it was rejected. Thirty days after the rejection, it was suddenly tendered. From that point forward, we took the position that the policy was opened. We refused to make any demand. We refused to go to mediation. We said early on we would only make a demand and go to mediation if an offer of $10 million was made and it was acknowledged that the policy was open.
After a series of letters and email demands (which is something that is special about our office, and which I have often been criticized for publicly) we got a call from the head claims rep. from the insurance. They offered $10 million and our counter was $37 million, which I put in one of my special emails that I made sure went to the insured defendant educating her about her bad faith rights.
We had an experienced mediator, and we communicated with him in advance and provided him with everything he needed for a short three-hour mediation. At mediation, we showed up and demanded $39 million because the insurer let our $37 million demand expire before mediation. We stuck hard to our numbers and continued to provide support for the human story of our client’s case throughout the mediation.
Representatives from the insurer flew in from their out of state home office. At the end of the less than three-hour mediation, the insurer told us that we made them care about our client and gave them a better understanding of traumatic brain injuries and their life long consequences. They recognized that they had screwed up by not offering the policy limit on behalf of the defendant. They acknowledged that you can’t judge a book by its cover (our client looked like there was nothing wrong with him, but his family and friends’ stories matched with advanced imaging and neuropsychological testing confirmed the brain damage). I hope that the insurer might evaluate brain injury cases differently now as they are among the worst injuries for victims their and families.
Nick on the $10,250,000 Settlement:
This case involved a man with a below-the-knee amputation. The client was disabled from a previous brain injury from six years ago.
While experts will argue about the level of dysfunction and damages between above-the-knee and below-the-knee amputations—they should all be policy limit cases. Not less. The full policy limits. Don’t under settle your cases. It seems easy not to care about smaller injury cases, and with the bigger ones, you can get tempted to accept lower than the full value.
Do not take the bait and grant extensions, or buy into the bologna from the adjuster or defense lawyer saying they need to do discovery. It’s just plainly not true. The duty to settle exists when you make a demand and the duty is that of the insurer. How often do we hear from defense lawyers, “it’s not my decision, the insurance company won’t listen to me”? Then the defense lawyer acts like he or she is upset that they have no control. It is all a bunch of bologna. It is our job to demand the value of our client’s case and it is our job to set the insurance company’s reserves.
In this case, we were told by the insurer that the limits were $250,000. It was an insurance company lie: a very common lie. As it turns out, there was an excess policy of $10 million. The defense firm that got involved when we filed the complaint was honest and told us, but we had to push to get it. Otherwise, we wouldn’t have known.
Attorney Steve Mazza pounded the defense with discovery immediately, gave no extension, and insisted the defense produce copies of the policy. His approach to discovery is relentless, like nothing I have ever seen. Especially on a big case, he takes no prisoners. The way he does discovery gives our clients the edge and keeps the defense working and defending, rather than becoming the offense with us being the defense. We got full recovery for this client in large part because of his intensive discovery work.
Before the defense firm got the case, the insurer had taken the position that liability was disputed because our client had been cited as driving the motorcycle at night without a license and having a passenger on the back. The passenger suffered no injuries whatsoever, and our client had a broken leg. Well, the broken leg, which required an external fixator, got infected—thus the amputation. The defense wanted medical bills and proof of all of our claims.
We gave them nothing but a photograph of me and the client and had his friend hold my phone while I did a sixty-second interview with him on my iPhone talking about his leg and how he was going to have it amputated. That and our demand for payment of the policy was all that was needed in order for the insurance company to have the duty to settle.
For those who think we need to give the defense time to take a deposition and do an IME and all that nonsense in order for the duty to settle to be triggered, I do not agree. Make your demands clear and unequivocal. Use the words that I learned years ago from attorneys Michael Bidart and Ricardo Echeverria: “This is a Clear and Unequivocal Opportunity To Globally Settle This Case And Protect Your Insured From The Consequences Of A Verdict and Judgment In Excess Of The Limits of The Insurance Policies.”
While the discovery was pending, I sent two emails to defense counsel demanding disclosure of the policy limits, informing the defense counsel that my client’s leg was in really bad shape and that we would likely resolve the case for policy limits, but needed to know what the policy limits were and have proof. When I didn’t get a response, I followed up by email and stated that our willingness to settle the case for policy limits was soon to expire and that we needed to know what the policy limits were and needed a statement or deposition from the insurance broker and proof.
The discovery was due, and it turned out that there was $10.25 million in total coverage. We also demand, in conjunction with the interrogatories, production of all policies and declarations pages. We cannot count the number of times that defense lawyers have lied in discovery about the limits of insurance only to later find out there is more—often way more—and then the defense lawyer claims he or she didn’t really know.
Also, the demands were by email, nothing on paper. You don’t need long written paper demands to settle a big case when the insurer knows you will litigate if the case isn’t settled. A long demand letter requires more time to review. We send demands by email weekly. We insist in every demand that the email demand be immediately forwarded to the insured by email and to any independent counsel. We outline that we will be seeking a multi eight-figure verdict and what the insured will be exposed to if the insurance company fails to pay the demand. In this case, I gave the defense ten days to pay the demand. I refused to discuss settlement with the defense at all, and specifically stated in the email demand that any counter offer would be a rejection, thereby opening the policy.
Like all of our cases, it was a team effort, handled in the way I discuss in Trial by Human. Each of my partners and others from our office has spent time with our client. We have been to his home; he is somebody we care a lot about. One of my law partners was at the hospital with him on Friday after his leg was amputated. One of my staff was there with him for five hours before he went into surgery. I was at his home with my kids the day before Thanksgiving, talking him into checking into the hospital because I could see his leg was infected.
I think we can all get more money for our deserving clients if we commit to doing things differently and not conforming to the systems that the insurance companies have set up.
If you are willing to do the work, care about your client, live and breathe your case, say no to mediation unless there is a good enough offer, and most importantly—commit to taking your cases all the way to trial, you can achieve great results in every deserving case.
It is clear that Nick obtains these high outcomes by following exactly what he discusses in his book, Trial by Human. Trial Guides will release a new video set by Nick Rowley starting in a few weeks and will have his new book on settling cases out later this year. Until that time, you can learn all about Nick’s successful methods in Trial by Human and his DVD, Connecting with the Jury.