Personal Injury Claims -- Common Issues in Florida
This area of the site will address the various elements and issues that can arise in a personal injury claim. Of course, this information is general, and is not intended to provide legal advice to you, because each case has unique facts and issues that must be discussed one on one with an attorney to make sure you are adequately protected. By now, you should have seen the disclaimer.
Before we discuss damages , let's address liability , because regardless of how big the damages are, unless you have a case for proving liability, you will have no valid claim. When lawyers and adjusters talk about liability, we are really talking about "fault." In other words, who was at fault in causing the accident? The legal concept of "negligence" comes in to play here, which involves proof that the other motorist breached a legal duty to you (the duty to pay attention while driving, for example). It has been my experience that 90% of the time, this is the easiest part of an automobile accident case. In most cases, the insurance company will not dispute that their insured was at fault, especially if it is the typical "rear-ender." Therefore, in most cases you do NOT need a lawyer to prove fault. However, there are certainly other times when fault is disputed. The other person's insurance company may take the position that you were at fault. For example, we see this arise when both parties say they had the green light. But again, assuming fault is clearly on the part of the other person, this should not provide a big obstacle for you. On the other hand, if the adjuster is claiming you are to blame, or partly to blame, this may be a very tough case for you to settle on your own, and you will likely want to talk with an attorney.
Moving on, let us assume that you have a strong case of proving "fault" or "liability" on the part of the other motorist. This does not necessarily mean you have a valid case, because you still must prove that as a result of the other person's negligence, you have been damaged. As you see, most cases come down to two things: Liability and damages. You can have a great liability case (hit by drunk driver), but no damages case (suffered no injuries). The opposite can be true, as well: A large damages case (multiple injuries), but poor liability case (you ran the red light). Again, assuming that you have a strong case for proving fault, let us look at what the typical damages are that the injured motorist will seek from a Florida accident (again, we are leaving property damage out of this, and just now concentrating on the personal injury claim):
I. Past Lost Wages: If you have lost wages as a result of the motor vehicle accident at the time your case is settled, then you are entitled to be compensated for those wages.
II. Future Impairment of Earning Capacity: If you are no longer able to work, or not able to work as much, or if you are in a lower paying job due to your injuries, you are entitled to claim damages for future wage loss. This may be true even if you are making the same money, but there is reason to believe that you may not be able to work as long in your career due to residual medical problems that are progressing. This figure can sometimes be quite high (young professional), or very low (elderly or retired person).
III. Past Medical Expenses: At the time of settlement, you will likely (but not always) have outstanding medical expenses. This area can be very tricky if you do not know what you are doing. For example, medical expenses paid by your own auto insurance company under the personal injury protection and medical payments coverage does not amount to "out of pocket" medicals, because you do not have to pay them back from your injury settlement. On the other hand, your private health insurance frequently does have a right to be reimbursed, so when calculating your unpaid past medical expenses, you would want to include anything paid by your health insurer.
Again, this is where an attorney can come in very handy. We do all of our computations on a spreadsheet that we call a "Medical Matrix." It tells us each medical provider, how much they have been paid, who paid it, how much of a lien there is, how much the client and his/her auto insurer paid, and any outstanding balance. By keeping this record, we assure ourselves that we are not overlooking an expense that the client will have to pay from the settlement proceeds. If you are trying to settle your case on your own, be very careful with this. If you have a general question, you can feel free to call me to discuss. A sample of our medical matrix format is available in the area of downloadable forms.
IV. Future Medical Expenses: When you settle your case, you get one bite at the apple. That means, you better get enough money if possible to pay not only for your past damages, but future as well (there is no "re-opening" a case later). Future medical expenses are such an item. If your doctor has rendered an opinion that you will require future care, than this becomes part of your claim. Future care can involve many types of treatment. You may be more prone to needing surgery in the future, or you may just need periodic massages, injections, or medication therapy. You should make certain that all of these things are factored into your demand to the insurance company. Get your doctor to render an opinion on the costs associated with future care and treatment so that you do not leave off this important aspect of settling your claim.
V. Past Pain, Suffering, and Mental Anguish: If you have been permanently injured as a result of the automobile accident, then you are entitled to fair compensation for past pain and suffering up to the time of settlement. Pain and suffering involves quality of life issues. If you used to enjoy spending time in the garden (or bowling, golfing, etc.), and can still do these things, but only with pain, then your quality of life is affected. If you can no longer do some of these things at all, then your quality of life is affected. If you are depressed due to your injuries, or your relations with your significant other are effected, then that can also affect your quality of life. Pain and suffering is a very tough item of damage to liquidate in terms of dollars and cents. After all, if your case were decided by jurors, you might have some people on the jury that do not even believe in pain and suffering damages. On the other hand, some jurors may be inclined to give a generous amount for pain and suffering.
It is extremely difficult for an attorney to know what a jury might award for pain and suffering (assuming that the jury finds permanent injuries). This is frequently the highly unknown variable that results in a case being tried in the first place. The parties may have a general idea as to what a jury will do with medical expenses and lost wages, but pain and suffering is sometimes anyone's guess.
VI. Future Pain, Suffering and Mental Anguish: If you have been permanently injured, then your claim should include future pain and suffering. Again, this is frequently tough to gauge. Some lawyers recommend a figure of three times the amount of your economic damages (i.e., three times of your past/future wage loss and medical expense damages). Others use a more arbitrary approach. Again, if you do not settle your case with the insurance company, it is tough to know what a jury might do with the item of pain and suffering. The judge will instruct the jury to bring back a "fair amount" if they determine that you have been permanently injured. What is "fair" to one jury is not necessarily "fair" to the next jury. Do understand this: The pain and suffering component of damages can be significant and is sometimes considered the most substantial part of the claim.
Consortium Claim
Not to be overlooked is that your spouse may have his/her own claim for loss of support and services (a consortium claim). Without significant injuries to the injured plaintiff, juries are commonly reluctant to award large amounts of money to a spouse. Nonetheless, if your spouse has been affected because he or she must now do the household chores that you used to, and the workload is now increased, then their quality of life is likely affected, too. Other items involve everything to how your injuries have affected the quality of your relationship, and even sexual relations. Again, this is the type of claim that might be tough to assign a number to, but your spouse should generally seek fair compensation.
Understand that your spouse's consortium claim is tied to your claim. If you settle your claim and forgot or failed to bring a claim for your spouse, it will be too late.
Summary of Damages
I have summarized the most common types of damages seen in a Florida personal injury claim. There may be other types of damages due to unique circumstances in your claim, so this section is not intended to provide you with legal advice.