How often do we, as plaintiff’s lawyers, pick up the phone when an insurance company calls only to receive a ridiculous pre-litigation settlement offer? Unlike the adjustor, we trial lawyers know that a Philadelphia jury can be our client’s best friend. They are likely to return a verdict much higher than the carrier’s offer. So we take the obvious next step of filing a Major Jury Complaint in the Philadelphia Court of Common Pleas, knowing that our client’s injuries are worth in excess of $50,000. In about a year, twelve Philadelphians will decide if the carrier’s offer was fair, or in bad faith. An excess jury verdict above the defendant carrier’s insurance limits is likely and the threat of bad faith is real.
The Major Jury program is the plaintiff’s greatest ally. The jury determines fair value of the claim. From the beginning of our democracy, the jury of our peers has been the bedrock of our judicial system and our sense of fairness and morality.
So what do you do when a defense
lawyer pleads for the matter to be remanded to Common Pleas Arbitration at the Case Management Conference, or defense counsel files a Motion to Remand to Arbitration, or the matter is sua sponte remanded to compulsory Arbitration? While we’ve all seen numerous Plaintiff awards at the hands of an arbitration panel, the low values on these awards, always below $50,000, make it impossible to get a full value settlement after an appeal. The insurance company now hangs its hat on this low valuation in trying to force a settlement below the fair jury value of
the claim. Even worse is that justice delayed is justice denied. Once the case is remanded, the case remains in the Court system for over two years from the date of filing the suit, to the remand to arbitration, to the arbitration appeal, and eventually to the jury trial. Compare this to a case that remains as a Major Jury case throughout and resolves in twelve months, in the Plaintiff’s original chosen forum.
The “test” for Major Jury worthiness is not what the defense adjuster determines that settlement value should be or what other plaintiff lawyers settle their cases for. Instead, the test is whether a Philadelphia Jury could return a verdict in excess of $50,000, and if so, would that verdict be subject to remittitur by the Court; a result I have never seen in my time practicing.
So what do you do when a Motion is filed to remand your case to compulsory arbitration? Utilize the below strategies:
1. Include Boardable Medical Bills, Both Past AND Future
Even as early as the Case Management Conference, present the Court with your client’s out-of-pocket or outstanding medical bills. By the time suit is initiated, your client likely has unpaid outstanding medical bills. Remember that under Pittsburgh Neurosurgery Associates, Inc. v. Danner, a Plaintiff may introduce the full amount of medical bills
to a jury in an action against Defendant and that amount may not be subject to Act VI reduction (only after the verdict can the Court mold the award to reflect the Act VI amount). These numbers cannot be ignored by the Court or the carrier. Further, depending on your client’s injuries, she will likely need to continue to
undergo further care. Be prepared with your expert doctor’s plan for future medical care or treatment if required and utilize a life care planning expert to determine the cost of
the future treatment, testing, procedures, and potential loss of household services.
2. Include Wage Loss and Loss of Future Earning Capacity Claims
Where applicable, introduce evidence of lost future earning capacity along with you past wage loss claim. Utilize where applicable, a vocational expert if the Plaintiff is, or may in the future be unable to perform his or her job, or the overtime or side work outside his or her regular work hours. Just be careful that the client files tax returns. If she doesn’t, then the defense can make your client out to be a tax evader.
3. Fight the Remand
If you do find yourself being sent back down to Compulsory Arbitration, fight the remand. File a Motion for Reconsideration of the Remand Order. Explain to the Court why the case belongs in the Major Jury pool. Make sure to include medical records, deposition testimony, excess medical bills and any additional economic and non-economic evidence you may have.
4. Research Comparable Philadelphia Jury Verdicts
Even a cursory research project will reveal numerous Pennsylvania cases in this decade, with facts similar to those of your case that have resulted in jury verdicts well in excess of the Arbitration limits. Judge and jury verdicts from Philadelphia, and varying jurisdictions throughout Pennsylvania, cannot be ignored by the Court or the insurance company. You will find that many of these cases with facts similar to, or even less convincing than those of your own case have returned verdicts beyond the arbitration limits and often in the six figures.
Marc I. Simon, is the CEO of Simon & Simon, PC, is a fourteen lawyer plaintiff’s injury firm in Pennsylvania and New Jersey handling primarily limited tort motor vehicle collisions and fall downs. For further information please visit www.gosimon.com