The first analysis to undertake is whether your claim can be settled without filing a lawsuit. Generally speaking, the more severe the injury, the more likely you are going to need to file suit. Why is that?
The reason is because the more you are injured, the more your claim is worth. The more your claim is worth, the more the insurance company wants to complete its due diligence before paying. They want to make sure all the bills and pain and suffering you are claiming are indeed related to the wreck and not some pre-existing condition.
Prior to you filing suit, the insurance company is restricted on what information they can get due to HIPAA. In the pre-suit stage, the insurance company cannot see all of your medical history without you either voluntarily providing it to them, or signing a voluntary authorization and allowing them to order it.
Once you file a lawsuit, you make your health at issue in a formal court proceeding. As such, the insurance company is entitled to discovery to order your medical records, among other things.
Therefore, to the extent that a generalization can be offered on this topic, the answer is you are more likely to file suit in a serious injury case because the insurance company wants you to prove your damages before stroking a big check.
Conversely, if the damages you are claiming are nominal, a lawsuit is not going to add case value. In those instances, it is often better to settle pre-suit to avoid the extra litigation costs, time and attorney fees associated with a lawsuit.
Finally, the amount of available insurance coverage will certainly play a role in this analysis. For example, a substantial damages case with minimal insurance will actually make it less likely you file suit because the insurance company is likely to pay its policy limits without you even needing to file suit.
However, a case with a lot of damages and lot of insurance coverage is almost certainly going to need to be litigated.
By Peter Bricks