Quick Answer
Settling gives you a known outcome and keeps the decision in your hands. A trial hands the decision to twelve strangers. In Kentucky the trial risk is not just that a jury might award less than you hoped. A Kentucky jury is asked to assign a percentage of the total fault to every party, including you, under KRS 411.182, and under KRS 411.188(3) the jury is allowed to hear that other sources already paid some of your bills. Those are two specific ways a verdict can land below an offer you turned down. A sound settlement decision comes from looking at those risks squarely rather than from anger or a wish to punish someone.
There are far more legal disputes than there are courtrooms, judges and lawyers. If every filed case were tried, our state and federal court system could not absorb it. Courts resolve most matters without a trial for many reasons, and limited judicial resources is only one of them. We are not going to give you a percentage, because the Kentucky Court of Justice publishes trial court caseload statistics by case category rather than a settlement rate, and we could not find Kentucky data measuring how often injury cases are tried.
This is true of virtually every kind of legal dispute. Whether you were injured in a vehicle accident, you are ending a marriage, you are facing a criminal charge, or you are a business owner suing a company that cheated you, the odds are good the matter will be resolved through negotiation rather than in front of a jury.
If the Parties Won’t Settle, the Jury Will Decide the Case?
Personal injury litigation is a way to resolve a dispute between you and the insurance company covering the person who caused the accident. That is all it is. There is nothing magical about it. Angels do not appear in the courtroom singing the jury verdict.
You and the insurance company disagree, we cannot reach an agreement, so you put the question in the hands of a judge and jury. You and the insurance company both give up control over the dispute and hand it to other people, hoping for an outcome that may or may not arrive.
Two features of Kentucky law shape what those other people can do with your case, and they pull in opposite directions. The favorable one is that there is no ceiling. Section 54 of the Kentucky Constitution provides that the General Assembly shall have no power to limit the amount to be recovered for injuries resulting in death, or for injuries to person or property, and Section 241 preserves the recovery for a death caused by negligence or wrongful act, to be prosecuted by the personal representative of the deceased. Kentucky does not cap injury damages the way many states do.
The unfavorable one is that the same jury decides how much of the blame is yours. Under KRS 411.182(1) the fact finder assigns a percentage of the total fault to each claimant and each defendant, under KRS 411.182(2) it weighs both the nature of each party’s conduct and how closely that conduct is connected to the damages, and under KRS 411.182(3) the judgment states each party’s equitable share so that each pays only its own share. No cap above and a fault percentage carved out of the middle is a wide range of possible results, and that range is exactly what a settlement closes.
Our Investigation Builds Your Legal Claim
After you are injured and we meet to discuss your case, I am happy to answer your questions. If you want to retain me and it is a case I can take, I will give you a representation agreement to read and sign. Once I am retained, we start investigating.
We find every relevant fact we can. We may hire accident experts for their opinions. We obtain your medical records and may send them to a medical expert for review. Getting those records costs less than most people expect: under KRS 422.317(1), a hospital licensed under KRS Chapter 216B or a health care provider must give a patient a copy of the patient’s medical record without charge on written request, and may charge no more than one dollar per page for a second copy. After we understand the facts and how Kentucky law applies to them, I will give you my view of a fair settlement range for your case. We discuss it, and when we agree, I send a demand letter to the insurance company setting out what our investigation found and asking that you be compensated for the harm you suffered.
There is a deadline running behind all of this. A Kentucky motor vehicle tort action must be commenced no later than two years after the injury or the death, or after the date of issuance of the last basic or added reparation payment, whichever occurs later, under KRS 304.39-230(6). Most injury claims that do not involve a motor vehicle run on a much shorter clock, one year from accrual under KRS 413.140(1)(a). Negotiating does not extend either one.
Will the demand letter settle the case? Often not on its own. The insurance company runs its own investigation, uses its own experts and produces its own number. If the two numbers are close enough and both sides are flexible, we reach an agreement.
Talking about settlement does not weaken your case if it fails. Under KRE 408, evidence that a party offered or accepted valuable consideration to compromise a disputed claim is not admissible to prove liability or the amount of the claim, and evidence of conduct or statements made in compromise negotiations is likewise inadmissible. The rule has limits, and it does not shield a document that was already discoverable, but the negotiation itself is not something the other side can wave at a jury.
When you negotiate, you have to understand what a trial risks. You lose control of how the case is resolved, and you risk a jury seeing the facts very differently from the way we see them. Your case could be dismissed, or you could win and receive a damages award far below what we hoped. Going to trial is a gamble. If you do not like taking risks, you probably do not want to be in that room.
You Need to Put Your Feelings Aside When Negotiating a Personal Injury Lawsuit Settlement
You decide whether to settle and for how much. I create the foundation and build the case, but the case is yours and the decision is yours. What I will ask of you is that you be reasonable about it. You may be very angry, and the accident may have wrecked a part of your life, but this is ultimately a negotiation about money. We have to put a figure on your situation and on what it will take for you to move forward. The insurance company will produce its own figure, and ideally the two meet.
If you will not look at the same cold facts a jury will look at, and you see the case only as a way to punish the other side, we are not the right fit and you should find another lawyer. There are very good reasons to pursue everything your claim is worth. There is no good reason to hold out for a number the evidence will not support, because the person who pays for that is you.
One thing worth clearing up, because it drives a lot of unrealistic expectations. Punitive damages are not a routine part of a Kentucky injury settlement. Under KRS 411.184(2), punitive damages are recoverable only on clear and convincing evidence that the defendant acted toward the plaintiff with oppression, fraud or malice. KRS 411.184(1)(c) defines malice as either conduct specifically intended to cause injury, or conduct carried out both with flagrant indifference to the plaintiff’s rights and with subjective awareness that it will result in human death or bodily harm. Both halves of that second branch are required. Where punitive damages are in play at all, KRS 411.186(2) lists what the jury weighs in setting the amount: the likelihood serious harm would result, the defendant’s awareness of that likelihood, the profitability of the misconduct, how long it went on and whether it was concealed, and anything the defendant did to fix it once it came to light. That is a demanding standard, and an ordinary negligence case does not meet it.
What a Settlement Actually Ends
A settlement is a release, and a release has consequences beyond the party who wrote the check. Under KRS 411.182(4), a release, covenant not to sue or similar agreement given to one liable person discharges that person from liability for contribution, does not discharge anyone else unless it says so, but reduces your remaining claim against everyone else by the released person’s equitable share of the obligation. In a case with more than one potentially responsible party, taking an early number from one of them does not leave the rest of the claim intact. Know what a release covers before you sign it.
There is also the question of who else is owed money out of the recovery. Under KRS 411.188(2), at the commencement of an action for damages the plaintiff or the plaintiff’s attorney must notify by certified mail every party believed to hold subrogation rights to any award, warn them that failing to intervene under Kentucky Civil Rule 24 will cost them those rights, and file a certified list of everyone notified with the clerk. And under KRS 411.188(3), collateral source payments other than life insurance, along with known subrogation rights, are an admissible fact at a civil trial. That last point is a real trial risk and it is one most people never hear about: at a Kentucky trial the jury can be told that your health insurer already covered part of your treatment. A settlement is negotiated without a jury ever hearing it.
Starting Down the Road to an Injury Trial Doesn’t Mean We’ll Get There
If negotiations after the demand letter are not going anywhere, we will probably file the lawsuit and start down the litigation path. Both sides then spend more time, energy and money on the case, but both sides also learn a great deal more.
We move into discovery. The parties send each other written questions, exchange information and produce documents. There may be depositions, where the parties, witnesses and expert witnesses answer questions under oath from the lawyers on both sides.
Cases often resolve after discovery because both sides have put their cards on the table. The relevant facts are known, each side has a sense of who will be a strong or weak witness, and the legal problems in the case have surfaced. Both sides have a much better idea what the claim is worth, and most disagreements get worked out.
If we still cannot reach a conclusion and a trial is approaching, we may use a mediator. Kentucky has rules for that. Under Civil Rule 99, adopted by the Supreme Court of Kentucky effective February 1, 2022, decision making authority stays with the parties, the parties normally divide the mediator’s fee equally, and an insured party has to bring a representative of its insurance carrier with full settlement authority. A good mediator may find creative solutions, see the case in a different light and help both sides focus on what they need rather than what they want.
If that does not work and the insurance company will not be reasonable, we go to trial. Settlements still happen just before and even during a trial. Even a win may not end things, because the other side may have grounds to appeal, and an appeal can delay payment of a jury award. That possibility is part of what you weigh when a settlement is on the table.
Take the Next Step. Contact Our Office.
Whatever path your case takes, I am here for you. I will do the work the case needs so that any offer you consider is an informed one. If it does not settle, I will tell your story at trial, defend your rights and make the case that the other party is responsible for your injuries and that you deserve to be compensated. What I will not do is promise you a result, because no honest lawyer can.
Weighing a Settlement Offer Against a Kentucky Trial
The hardest moment in most injury claims is not the crash and it is not the courtroom. It is the afternoon you have a number in front of you and no way to know what the alternative would have been. The Fleck Firm, PLLC was founded by attorney Tyler M. Fleck, a U.S. Army veteran who built his practice to serve people throughout Kentucky. If an offer is sitting on your kitchen table, we will tell you what the evidence supports, what share of the fault a jury could put on you under KRS 411.182, what the release would do to any claim against another party, who holds subrogation rights that will come out of the money, and what it would cost in time to find out.
