Is it worth going to trial instead of accepting a lower settlement given potential litigation costs?: North Carolina personal injury cases
Is it worth going to trial instead of accepting a lower settlement given potential litigation costs? - North Carolina
Short Answer
In North Carolina, going to trial only makes financial sense if you are likely to win more than the insurer’s offer by enough to cover added costs, risks, and time. Trials trigger filing fees, discovery expenses, mediation costs, and expert fees, and a Rule 68 offer of judgment can shift certain post-offer costs if you do not beat it. North Carolina’s pure contributory negligence rule can bar recovery entirely. Compare your probable verdict range and lien paybacks to the offer before deciding.
Understanding the Problem
You are a North Carolina car crash victim deciding whether to accept the insurer’s “top and final” lump-sum offer or file suit. You want to know if a trial could net you more after paying contingency fees, court and litigation costs, and any medical liens—especially since your demand was higher and travel mileage was included in your damages.
Apply the Law
Under North Carolina personal injury law, your decision turns on liability, damages, and litigation risk/cost. Lawsuits are filed with the Clerk of Superior Court, and most Superior Court civil cases must go through a mediated settlement conference. A three-year statute of limitations generally applies. Some costs can shift if you fail to beat a formal offer of judgment.
Key Requirements
Liability: You must prove the defendant was negligent and caused your injuries.
Causation and Damages: You must link medical treatment, therapy, lost income, and reasonable out-of-pocket expenses (like necessary travel) to the crash.
No Contributory Negligence: If you were even slightly at fault, recovery can be barred.
Forum and Mediation: File in District or Superior Court based on claim value; Superior Court cases are ordered to mediation.
Costs and Offers of Judgment: Filing, service, discovery, mediator, expert, and subpoena costs apply; a Rule 68 offer can shift certain post-offer costs if the verdict is not more favorable.
Medical Liens: Provider and certain insurer reimbursement claims can reduce your net; North Carolina caps combined medical lien recoveries from a personal injury recovery.
Apply the Rule to the Facts: If liability is clear and you were not at fault, trial value may exceed the offer—especially if medical records and therapy support your damages and travel was reasonable to obtain care. But if there is any evidence you were even 1% at fault, North Carolina’s contributory negligence rule could reduce your trial value to zero. After subtracting contingency fees, case costs, and paying any valid medical liens (subject to the statutory cap), compare your estimated net from trial to the insurer’s offer net.
Process & Timing
Who files: The injured person (plaintiff). Where: Clerk of Superior Court, civil division, in a proper North Carolina county. What: Complaint (drafted pleading), Civil Summons (AOC-CV-100), and often a Civil Action Cover Sheet (AOC-CV-750). When: Generally within three years of the crash under N.C. Gen. Stat. § 1-52.
After filing: Serve the defendant under Rule 4. The court issues a mediation order in Superior Court; parties select a mediator (typically within a few weeks of the order), exchange information, and mediate. Discovery (records, depositions, expert opinions) proceeds during this period. Timelines vary by county and docket.
If unresolved: Final pretrial, then trial. If the defendant made a Rule 68 offer you fail to beat, the court may shift certain post-offer costs to you. Judgment is entered; liens are resolved from the recovery, then the balance is disbursed.
Exceptions & Pitfalls
Contributory negligence: Any fault on your part can bar recovery; this dramatically raises trial risk.
Rule 68 risk: If you do not beat a formal offer of judgment at trial, you can owe post-offer “costs,” reducing your net.
Liens and reimbursement: Medical providers and certain health plans may claim repayment from your recovery; statutory caps apply to covered medical liens, but some plans (e.g., certain ERISA self-funded plans) may assert different rights.
Cost creep: Experts, depositions, and mediator fees add up. These are usually not recoverable from the other side and come off your share.
Mediation outcomes: Superior Court mediation is mandatory; many cases settle there. Skipping a reasonable settlement can backfire if proof problems surface later.
Conclusion
It is worth going to trial in North Carolina only when strong liability and well-documented damages make it likely you will beat the insurer’s offer by enough to cover added costs and risks. Weigh contributory negligence risk, mandatory mediation, potential Rule 68 cost-shifting, and medical lien paybacks against your projected verdict. If you choose to litigate, file a complaint and summons with the Clerk of Superior Court before the three-year deadline and prepare for mediation.
Talk to a Personal Injury Attorney
If you’re weighing a low settlement against the costs and risks of trial, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at 919-341-7055.
Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.
