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(314) 500-HURTEvery personal injury claim is unique, but hearing others' stories can help you understand what to expect. Burger Law offers a collection of our previous clients' stories and how we were able to help.
Dear Alif,
I thought I would share a story about my client Audra. Last week I settled her car crash cases. Two aspects of her claims were unusual. First, she had one rear end collision, went to the ER, and went to a chiropractor. On her way to her fourth (and last) visit she was rear ended again. She was injured more in the second crash. She had physical therapy, orthopedic consultation, back injections, and is permanently injured. What do you do when the defendants in each accident will blame each other for damages? File one lawsuit against both defendants for both accidents. We litigated the case, took depositions, and settled both claims – one the Friday before the Monday trial.
Second, there still was not enough money to fully compensate her for her damages – so we are now filing her underinsured lawsuit against her insurance company. She had worked the same medium labor job for 15 years at a local grocery store. After the car crash, she couldn’t work at all. Her pain was truly excruciating and her doctors restricted her activity. She worked hard to improve herself and eventually was able to return to work. Her employer was great and put her in a less strenuous job – but she makes less.
Underinsured coverage applies when a negligent driver does not have enough insurance to cover all your damages. If your damages are $100,000 and the driver who crashed into you only had $25,000 in insurance coverage, you are underinsured for $75,000. Insurance companies sell coverage to fill in this gap. We always make underinsured claims where damages exceed coverage.
To make an underinsured claim, we first have to settle the claim with the main tortfeasor and exhaust their coverage (including excess or umbrella and we get an affidavit of no more insurance). If a negligent driver has $25,000 in insurance and settles for $20,000, there is no underinsured claim. Insurance companies erect roadblocks against their own insureds in underinsured claims. They do not tell claimants they have underinsured coverage or how to make a claim. Often they will have separate claims adjustors and separate departments for underinsured coverage. After I made Audra’s underinsured claim, the adjustors were calling me to ask if I was really trying to settle a property damage claim, get medical payment coverage or what mistake had I made. Obstacles decrease payouts and improve profits.
After an underinsured claim is made clearly and in writing, the insurance company assigns a separate underinsured claims adjustor. We communicate with that adjustor about the status of the claim and advise when we are about to settle the claim against the negligent driver (they want to make sure there is no more insurance). We get a full recovery from the underinsured carrier for all damages, make time limited, policy limit demands and file suit quickly. In Illinois, we make an arbitration claim as all policies mandate arbitration (which is enforced by statute).
Underinsured policies usually provide a “set off” or credit for the amount recovered from the negligent driver. Lack of disclosure of this is, frankly, a misrepresentation by the insurance company. When you buy $100,000 in underinsured coverage it is promised as such, and you pay the premium on that amount. What you do not realize is only $75,000 in coverage is provided because the negligent driver would have at least $25,000 in coverage. Please call us at [dynamic-phone-number] or email me if I can ever help like we helped Audra. We generously share fees with referring lawyers under Rule 4-1.5(e). I hope this note was informative and thanks for reading.
Gary Burger
Responses:
“Thanks for sharing this with me, it was very informative.”
--Christopher
“Gary, Thank you for your informative email case histories. I have heard reports of your excellent work over the years….”
--Alif A. Williams, Esq.
Dear Dawn,
I was able to secure a little over $1 million settlement for a well deserving client with serious damages and permanent brain damage. Our client Kelly was diagnosed with, but not properly treated for, a brain aneurysm. Kelly went to a Southern Illinois emergency room and was treated by a physician there who diagnosed a recent brain aneurysm but did not monitor her or refer her to neurosurgeon for immediate “coil” surgery. Kelly had a “thunderclap” headache (or the worst headache of your life) and had problems for a few days before she was brought into the emergency room. The doctor there did a CT scan of her brain and found an aneurysm, but did not do a spinal tap to assess whether it was still bleeding or keep her for observation or refer her immediately to a neurosurgeon.
Instead he advised her to call a neurologist the following week for follow-up visit and did not imply any urgency in that. Two days later the aneurysm ruptured again causing brain damage. This is completely contrary to the standard of care. When an aneurysm happens, immediate treatment is needed to prevent further bleeding and brain damage. Fortunately, Kelly has made a good recovery and lives at home with her father. We were able to file suit and aggressively pursue this case and obtain the full insurance policy limits for Kelly. In addition, we worked with the family to put the money in a trust so that Kelly can continue to get benefits to help her for medical care for the rest of her life. This is called a Supplemental Needs Trust and puts the money in a trust for needs that are supplemental, or in addition to, the needs provided by Medicaid.
I am so proud and have a lot of gratitude for being able to help Kelly and her family – they are the kindest family and deserved good, aggressive and honest representation. If you or a family member have this type of head pain – insist on prompt and thorough evaluation and testing, and be seen by a neurologist or specialist.
We have represented others with brain injuries as well. Each year, an estimated 1.7 million people sustain a traumatic brain injury (or TBI). While around 75% of TBIs are concussions or other forms of mild traumatic brain injury, the other 25% are moderate to severe injuries and can have lasting consequences on a person’s quality of life. In some cases, these injuries can even cost a person his or her life: TBIs make up almost one-third (30.5%) of injury-related deaths in the United States.
Around 5.3 million Americans, or about 2% of the total population, currently live with disabilities that resulted from a TBI. Of the 1.7 million people who experience these injuries each year, 80% (1.365 million) are treated and released from an emergency room in a hospital, but that leaves the other one-fifth in critical condition. The number of hospital visits that are the result of a TBI increased from 2002 to 2006 from 14.4% to 19.5%. Fortunately, it is believed that 75 percent of traumatic brain injuries treated in emergency rooms are reported as mild in severity.
The most frequent cause of TBIs are slip and fall accidents, which result in the greatest number of TBI-related emergency department visits in the United States -- at least 523,000 of them, in fact. They also cause the greatest number of hospitalizations at 62,334 annually on average. Essentially, falls are to blame for more than one-third (35%) of all TBIs. Between 2002 and 2006, there was a 62% increase in fall-related TBIs seen in ERs involving children age 14 and younger. Also between those years, adults age 65 and older experienced a 46% increase in ER visits, a 345 increase in hospitalizations, and a 27% increase in TBI-related deaths.
Diffuse axonal injuries occur when the brain moves back and forth in the skull as a result of acceleration or deceleration. Many concussions are considered to be mild to moderate diffuse axonal injuries. The axons in the brain, responsible for sending messages between neurons, are severed when brain tissue slides over brain tissue. Unlike a blunt force injury, this injury is considered diffuse because it affects the entire brain. Many people who experience a diffuse axonal injury experience swelling in their brain. Most people survive a mild to moderate form of this injury, but very few people survive severe diffuse axonal injuries without permanent impairment. This type of injury is best diagnosed with an MRI. Focal brain injuries occur when someone experiences a severe blow to the head. Focal brain injuries can be open or closed and can involve something, a piece of the skull or penetrating object, piercing the brain. These injuries are referred to as focal because they only affect a specific area of brain tissue. Focal brain injuries often result in contusions and hematomas. A contusion occurs when brain tissue is damaged. A hematoma occurs when there is bleeding present in the skull. The symptoms of a focal brain injury vary depending on the location of the damage to the brain. This type of injury can be easily diagnosed with a CT scan.
While mild TBIs, like concussions, tend to heal after a short period, mild to severe TBIs can present a lifetime of consequences for an individual. Anything from hampered motor skills or mobility issues to a persistent vegetative state can occur after a traumatic brain injury. Even if a person survives a TBI, that injury can present complications further down the road. A moderate head injury, for instance, can increase the risk of developing Alzheimer’s disease by 2.3 times; for severe head injuries, the likelihood of a person developing Alzheimer’s increases to 4.5 times.
The costs of medical care for a person with a TBI can be astronomical, and it’s not uncommon for people in the United States to have to file for bankruptcy just to pay off medical bills. Long term and permanent injuries can have devastating consequences for patients and their family members, and insurance companies sometimes don’t make this process any easier. Brain injuries are always a concern when you are involved in a fall, collision or if an unstable piece of equipment strikes you in the head. You should always be examined for a brain injury if you are involved in a serious accident. Many people don’t know that the symptoms of a brain injury may take time to develop. You may be involved in a car accident in which you sustain a whiplash injury and only start to notice the resulting cognitive impairment once you return to normal activities. It is important for your long term health and recovery to be examined by a medical professional as soon as your symptoms begin to surface. Quick action is also an important factor for a personal injury claim. Thanks.
Responses:
“Great article…very informative…thanks for sharing!!!”
–Dawn R. Berry, CIC
“Interesting read and great settlement! I remember her case.”
--Zsantee
Dear Jim,
My mom, Joan Burger, has joined Burger Law to help in our more complex litigation and mediation practice. I have always looked up to her as a lawyer and remember watching her try a case when I was 13 years old - the age of my son now. She practiced law for 19 years prior to becoming Circuit Court Judge in the City of St. Louis. She then worked as a mediator, but recently ended that phase of her career. (She is also Chairperson of the St. Louis Election Board and an awesome Grandma).
She is working with me on cases and proving invaluable. It is really fun to be able to practice with her - it only took me 24 years to get up to her speed (I have to up my game). If you have any questions for Judge Burger, please call us and she will answer them. Or, as always, call anyone else at Burger law with a legal question.
My mom and I are presenting Burger Law’s first CLE on April 28, 2016, from 10 am - 1:15 pm. A total of 3 MCLE credit hours will be available with 1 hour ethics credit. The presentations are as follows:
We both have done great CLEs in the past to educate lawyers on practical legal issues and improve our profession. We are pumped to present together. There is only one rule for our CLEs: No war stories. Please come to get educated and to advance your practice. This CLE is kind of FREE – we ask attendees to make a generous donation to Legal Services of Eastern Missouri.
What do you do when a defendant in an auto crash and their insurance company refuse to settle a case or even communicate with you? File, litigate and try the case. This is what I did for the Smith- Washington family a few weeks ago. On February 18, 2016, I tried their auto accident case in St. Clair County, Illinois and obtained a $234,317 judgment. This is an excellent victory as our medical specials were about $24,000, with about $9,000 in property damage and rental car costs. The court gave $200,000 for pain and suffering for our two clients. They had low back injuries with chiropractic care and some epidural steroid injections.
Most people assume that if they are in a car accident and it is someone else’s fault, the case should settle quickly for all their damages. Nope. Ultimately the only power a car crash victim has is to file a lawsuit and go to trial. Suing the at-fault driver is necessary to combat cheap insurance companies. Those companies have contracts with the insureds to indemnify, or pay, for personal injury damages that the negligent party causes. That’s what we did for the SmithWashington family. We filed suit and litigated the case. Our clients’ depositions were taken and we took depositions as well. We presented our medical evidence through evidence depositions of physicians. You think that a crash that is so violent that it takes the back bumper off a car would settle easy. Not!!
But no, there were a number of lawsuits related to this case. The lawsuit we tried and won, a separate declaratory judgment action against the defendants regarding insurance coverage, which we appeared in and litigated, and an arbitration case against our own clients’ insurance company recovered damages under their policy. For a previous article on that case, click here. We continue to fight for the Smith-Washington family and continue to fight for all of our clients, despite the position taken by our opponents. Thanks for reading.
Gary Burger
Board Certified/AV Rated/Superlawyer
Responses:
“That’s a good one I bet people are responding to this one…I’m forwarding to my marketing person as an idea we can maybe use down road nice work man.”
--James
Dear John,
Well, practicing with my mom is off to a great start. We have done three depositions together, producing clients in two serious injury cases (injured lawyer and a child with brain damage) and deposing the defendant truck driver in a tractor-trailer crash. In that depo, my mom ruled against me and for Matt Noce. LOL
So, what do you do when your mom rules against you? Didn’t think I would be in a depo saying “Aw, come on mom, please…” I think she can do it next time.
Our CLE on April 28, 2016, quickly sold out. So we are doing it again the same day in the afternoon from 2 to 5 pm. A total of 3 MCLE credit hours will be available with 1 hour ethics credit. The presentations are as follows:
We both have done great CLEs in the past to educate lawyers on practical legal issues and improve our profession. Register quick to get educated and to advance your practice. Limited space and FREE - we ask attendees to make a generous donation to Legal Services of Eastern Missouri.
I tried my second case of the year last week before Judge Cohen in St. Louis County. It was a hard fought battle against Rufus Tate. The Judge was kind enough to complement our lawyering and professionalism at the end of the case to the jury (Rufus is a good trial lawyer). I represent a young woman who alleged she was fired from her job because she was pregnant. There was no resolution – we will have to try it again. The judge determined that the jury could not reach a decision and declared a mistrial.
After the jury was out for about 4 hours they sent a note to the judge saying they were Deadlocked, 8 to 4 for the plaintiff (my client). In Missouri state court a plaintiff needs 9 of 12 of the jurors to agree on a verdict. There is an instruction sometimes called the ‘hammer’ instruction that a judge can read to a jury when they are deadlocked, encouraging them to come to a resolution and that the law favors final decisions in disputes. This instruction is sometimes read to encourage a jury to continue deliberating so that they can compromise and come to a final decision.
However, there is case law discouraging the use of a hammer instruction if the court knows how the jury is voting. This occurs more often in criminal cases – if the jury is 11 to 1 for guilty and the judge says go deliberate more, the court is kind of asking for a 12-0 guilty verdict. In our case, although the court did not ask, the jury’s note said they were 8 to 4, and a hammer instruction might encourage a plaintiff verdict. The judge brought the jury out and asked each if they thought further deliberations would help, and all 12 said no. So, the judge declared a mistrial. The jury really worked hard and had a genuine impasse they could not resolve. We hope to try the case again and get a win. To be continued ……
Responses:
“Always listen to mama!”
--John
Dear John,
I’d like to share my good fortune – I got married on Saturday!!!! I am so lucky to have met and fallen in love with an amazing woman. We had a bunch of friends and family join us over the weekend at the 9th Street Abby in Soulard. The food was great and our friends Joe and Shawn, of Falling Fences, played great tunes (they play Sunday nights at McGurks). Kristen and I met about 2 years ago and we have had a great time together ever since. We have full, busy lives and parent our three kids, Jordan, Lucy and Audrey. I am still a little numb, but am so happy to call Kristen my wife. I didn’t think I would find this at this stage of my life. I work on my gratitude to appreciate how good I have it – but having gratitude for my family comes easy. Remember and treat your spouse or partner like a newlywed every day.
Burger Law’s April 28, 2016 afternoon CLE will include 1 hour of ethics instructions and is almost full. Attendees to my past CLEs have appreciated the nuts and bolts information we try hard to convey. The ethics instructions will include Rule 1.15(e) which governs co-counseling and referral fees. I am asked more and more often to work with other lawyers on their cases to achieve great results. We co-counsel on Auto, Truck, Motorcycle crashes, medical malpractice claims, slip and falls, workers’ compensation and class action suits. The presentations are as follows:
But what a crazy few weeks leading up to the wedding – I had back to back trials right up to the wedding. The second was a two week trial in Federal Court against General Motors on behalf of my client. We sued GM alleging their roof on GMC Savannah was too weak to protect occupants in a rollover crash. We worked on the case for over 2 years prior to trial.
Thousands of documents were produced, many depositions taken and we fought really hard for an amazing and deserving client. Rollover cases can be tough and their success depends on the vehicle, the strength of its roof, the snugness of the seatbelt and the facts of the incident. Forces in a rollover can be serious, juries can be reluctant to blame a manufacturer, and they are hard fought by the defendants.
I partnered with a large law firm and tried a rollover case against Chrysler back in 2006. We put a lot of work in that case and tried it for 6 weeks in the City of St. Louis. At the end of the case we asked for a large recovery for our clients (2 deaths, one severely injured client and other minor injured) We lost – the jury returned a defense verdict. But that crash was at 70 mph and involved many rollovers.
The case last week was different: 30mph roll on exit ramp to rest stop; 2 rolls; 2 woman occupants and 4 dogs. But the injuries were catastrophic – my client was paralyzed from her 6th cervical vertebra down. She handled her injury with poise, courage, and temerity. Her testimony was moving and her efforts to recover and live with her injury have been heroic. We had top notch experts and presented our case well. We really burned the midnight oil and gave it our all. Unfortunately the jury returned a defense verdict and no recovery was obtained.
Why write about it? Good trial lawyers don’t win every case. I am as proud of my work in this case, or more so, as I am for other successes for clients I write about. It’s important to fight the good fight and stand up for what is right. And we hone our craft through trials and zealously representing our clients; we can learn as much in defeat as in victory.
As we progress in life we relearn the wisdom of the serenity prayer – We can only control our actions and not the outcome of many things in life. It’s hard to truly accept the things we cannot change – or as my client said on the stand. "I prayed for God to heal me, but whether He would was up to Him." As heartbreaking as the loss was, I redouble my efforts in my other cases to do as well as I can.
Some lessons: When defendant’s experts have testified a lot you don’t need OSI’s (other similar incidents) in a products liability case – use their other cases; remember we are trying cases in 2016 and jurors often are numb to our client’s plight and don’t look on lawsuits well. The public is also numb to corporate bad behavior – what was outrageous 20 years ago is ho hum now.
In a products liability case Plaintiff must show a defect was unreasonably dangerous when put to anticipated use. It seems like you have to show really bad stuff to win these days - unless you have the killer smoking gun document or depo, you will have a tough time. We have really good ways to do this, and I am psyched for the next one.
Our next CLE will include products liability claims and lessons learned from this and other cases. If you have any questions about this case, or any other, email or call me at [dynamic-phone-number]. Thanks.
Gary Burger
Responses:
“Gary, I am very happy of you. That is terrific news.”
--John
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