Should You Settle During a Pandemic? Timing, Case Value, and the End of Deadline Tolling

Published July 14, 2020 · Injury Law Basics · New Laws

The phone call usually comes on a weekday afternoon. The adjuster is friendly, mentions that "with everything going on" the courts are backed up for who knows how long, and offers to wrap up your claim this week with a check. For a family that has been out of work since spring, that offer can sound like a lifeline.

Sometimes it is. More often it is a bet the insurance company is making that you are tired, worried, and short on cash. Here is how I am advising clients to think about settlement timing in the middle of 2020, and the one calendar date every injured Ohioan needs to know about right now: July 30.

Why insurers want to settle now

Insurance companies are not in a hurry to pay claims in ordinary times. When an adjuster suddenly becomes eager to close a file, it is worth asking why.

The answer this summer is leverage. Many Ohio courts postponed jury trials this spring and are working through a backlog of criminal and civil cases. In an injury case, the realistic possibility of a jury verdict is what moves an insurer toward a fair number. When trial dates look far away, the adjuster's calculation shifts: the company can offer less today, and the person on the other end of the phone may take it because the alternative feels like waiting forever.

The other pressures are financial. Lost wages, layoffs, and stimulus checks that did not stretch far enough have left a lot of injured people in a tight spot. A quick offer arrives at exactly the moment you are least able to evaluate it. I wrote years ago about why insurers open with a quick, low number; the pandemic has made that playbook more effective, not less.

Do not settle before you know what you are settling

The single biggest mistake I see is settling before reaching maximum medical improvement, the point at which your doctors can say how much you will recover and what care you will need in the future. A settlement is final. Once you sign the release, you cannot come back for the surgery your orthopedist recommends next spring.

That problem has gotten worse during the pandemic. Elective procedures were put on hold for weeks. Physical therapy clinics closed or cut hours. MRIs and specialist referrals were delayed. For many of our clients, the medical picture is simply less complete than it would normally be at this stage. An adjuster who offers to settle a back injury before the MRI has even been read is asking you to guess about the most valuable part of your claim.

Our guide chapter on what your case is worth walks through how future medical care, lost earning capacity, and permanency drive value. Every one of those numbers depends on a medical record that, for many people, is still being written.

Trial delays cut both ways

It is true that a jury trial may be further away than it was in January. But delay is not only the plaintiff's problem. The insurer is still paying defense lawyers, still carrying a reserve on its books, and still facing the same risk of a verdict when the courts catch up. Juries in 2021 will be just as capable of understanding a serious injury as juries in 2019.

There are also ways to keep a case moving without a courtroom. Depositions are being taken by video. Many judges are holding status conferences by phone. And mediation, a structured settlement negotiation run by a neutral third party, is happening by video conference across the state. I have explained what to expect at mediation before; the format on a screen is different, but the dynamic is the same. An adjuster with real settlement authority, facing a well-documented claim, still has every reason to resolve it fairly.

In my experience, patience usually pays in a case with a serious injury and clear fault. It does not pay to ignore the calendar, which brings us to the deadline problem.

The deadline clock is about to start again

In March, the General Assembly passed House Bill 197, and Section 22 of that bill paused, or "tolled," Ohio's statutes of limitation and other legal time limits, retroactive to March 9, 2020. The Supreme Court of Ohio issued a parallel order for deadlines in its own rules. I explained the basics in our March post on H.B. 197 tolling.

Here is what matters today. According to the Supreme Court's guidance, the tolling period ends on the earlier of two dates: the day the Governor's emergency declaration ends, or July 30, 2020. The emergency declaration has not ended as of this writing, so tolling ends no later than July 30. That is a little more than two weeks away.

Two details in the Court's guidance trip people up:

• Tolling only helps deadlines that fell inside the emergency period. If your deadline was due to expire between March 9 and the end of tolling, it was paused. If your deadline falls after tolling ends, it was not extended at all.
• Time that ran before March 9 still counts. The clock did not reset. It stopped, and it will pick up where it left off.

A worked example

Ohio generally gives you two years from the date of injury to file a bodily-injury lawsuit under R.C. 2305.10(A). Suppose you were hurt in a crash on April 15, 2018.

• Your normal deadline would have been April 15, 2020, which fell inside the emergency period, so it was tolled.
• On March 9, 2020, when tolling began, you had 37 days left on your two years.
• Those 37 days begin running again when tolling ends. If tolling ends July 30, your new deadline falls on or about September 5, 2020.

Now change one fact. If you were hurt on October 1, 2018, your two-year deadline is October 1, 2020. That date falls after the emergency period, so H.B. 197 does not extend it. Many people assume "COVID added time to everything." It did not.

The arithmetic gets harder with weekend and holiday rules, claims against government defendants, medical claims, and contractual deadlines in your own insurance policy. Our guide chapter on deadlines and the timeline of an Ohio injury case lists the deadlines that come up most often. We never cut a filing close to the line, and you should not either.

What this means for you

• A pandemic is not a reason to accept less than your claim is worth. Do not settle before your doctors can tell you where you will end up.
• Trial delays affect the insurer too, and video depositions and mediation can keep a case moving.
• H.B. 197 tolling ends no later than July 30, 2020. If your deadline was paused, it must be recalculated now, and if it was not paused, it may be closer than you think.
• If you were injured in 2018, check your deadline this month.