LawyerFlorida.com Law Office of Lawrence S. Silver

1. What is my personal injury case worth?

This is probably the most often asked question in a personal injury case. An attorney may be able to give you a general ballpark figure early on, however, it is nothing more than an educated guess. The reason an attorney can’t be specific early in the evaluation of the claim is that the attorney needs to know a lot more about a claim than the basics. Claims have damages value based on five areas assuming the liability, i.e. who was at fault, issue is clear. Plaintiff's in personal injury cases not involving death are entitled to five areas of damages. Those areas are as follows:

A. .....Past Medical Bills

B. .....Future Medical Bills

C. .....Past Lost Wage

D. .....Lost of Earning Capacity in the Future

E. .....Pain and Suffering

There is no tried and proven formula to determine exactly how much a case is worth and it really depends on how the evidence comes in on a case. Below is a list of many, but not all, of the factors that go into developing how much a case is worth.

In a traditional personal injury case, such as a car accident, the injured person who is not primarily at fault (the plaintiff), will seek the assistance of an attorney. That attorney, after being retained, will conduct an investigation into the facts of the case, to determine how much the case is worth.

Some of the factors include:

If the plaintiff is still receiving medical treatment, then medical bills can also be hard to figure. Until the plaintiff reaches what is called "Maximum Medical Improvement" (MMI)(which means the person is as good as they’re going to get, even if they haven’t fully recovered), it is difficult to calculate damages. That is why it is often better to wait until the plaintiff has reached Maximum Medical Improvement before settling a case. Once MMI is achieved, it is easy to figure past medical expenses and hopefully the doctors can calculate what percentage of permanent injury has been sustained, if any.

There are many other factors that will also go into determining what a fair settlement will be.

If the plaintiff’s attorney and the insurance company for the defendant or defendants with more than one insurance company can not reach a settlement that the plaintiff agrees to, then the claim will be filed in a lawsuit and if settlement is not reached again the case will ultimately go to trial and a jury will decide.

While the above example deals with a car accident, it is similar for other types of negligence, such as motorcycle, bicycle, boats, dog bites, etc.

2. I was involved in an automobile accident, and my car was totaled. My company is not offering me a fair settlement on my claim. What can I do?

Do your homework. Check the "blue book" for the actual cash value (ACV) of your car, check out the classified advertisements in your local newspapers and check with the car dealerships in your area. Look for the prices of cars similar to yours and submit them to your company, if the prices are higher than the company's offer. If they still fail to offer you more money, you may invoke the appraisal clause in your policy, request mediation or consult an attorney to see if legal action may be taken. Remember their estimate must be based on the local market. Generally, the attorney who represents you in the personal injury claim will resolve the property damage claim as well.

3. I was involved in an automobile accident, and the other party was at fault. My insurance company does not want to subrogate, including the amounts due on my deductible or loss of use. What can I do?

When you have collision coverage and your insurance pays your property damage claim less your deductible they may not pursue the claim against the other party. There is no requirement that your company pursue subrogation. If the company does subrogate, you may be responsible for a portion of the expenses, regardless of the outcome. If the company does not plan to pursue subrogation, you can usually file in small claims court to recover the amounts owed. Or, you may make a claim against the at fault party's insurance policy for your out of pocket expenses.

4. The person that hit my car does not have any insurance coverage. What do I do?

You can take the at-fault party to court. If you obtain a judgment against the owner of the car and they do not pay the judgment, you should contact the bureau of Florida Financial Responsibility in the Florida Department of Highway Safety and Motor Vehicles so they can take the appropriate action against the owner of the car. This is very typical in South Florida and that  is why it is best to carry uninsured/underinsured insurance and collision coverage if you can.

5. I was involved in a car accident and was not at fault. The officer gave a ticket to the other individual. I have contacted the other party's insurance company, and it refuses to honor my claim because its insured has not given notice of the accident. Doesn't that insurance company have an obligation to pay my claim even if its insured does not report the accident?

The company is obligated to pay what the insured is legally liable for because of an accident. A ticket by itself is not evidence of 100% legal liability, therefore, in many instances the company may not have to pay for damages if their insured does not report the accident and cooperation in the investigation. There are many factors taken into consideration when evaluating liability claims. Each situation is judged on its own merit. Some insurance company's are known to be less than fair and some end up going out of business. Your attorney knows how expedite these matters when you have  been injured. 

6. My car has been totaled. The insurance company has made payment, but the amount paid will not cover what I still owe the financial institution. What is next?

Insurance companies are obligated to pay in accordance with their policy provisions, which is usually the actual cash value of the vehicle at the time of the loss. This amount does not always cover the loan balance because you may owe more than the vehicle is actually worth. You would be responsible to pay the difference to the financial institution. Generally when you lease a vehicle there is protection called gap insurance.

7. If my auto repair is delayed while waiting for parts or if the body shop delays, is my auto rental extended?

If you feel you are entitled to rental, check with your adjuster. The adjuster approves or denies all these expenses. Don't delay when this happens.

8. What is the minimum amount of insurance required by the State of Florida?

Any person who has a car in Florida for more than 90 days during the preceding 365 days, resides in Florida, is employed in Florida or has children in school in Florida must purchase Personal Injury Protection ($10,000)  PIP and Property Damage Liability coverage ($10,000).

In addition, if the insured is involved in an accident, the Florida Financial Responsibility Law, regulated by the Florida Department of Highway Safety and Motor Vehicles, also requires Bodily Injury Liability coverage ($10,000 Bodily Injury one person, $20,000 Bodily Injury one accident, or $30,000 combined Bodily Injury).

Personal Injury Protection (PIP) is sometimes referred to as Florida no-fault insurance. It covers you and relatives residing in your household for injuries sustained in an automobile accident regardless of who is at fault. This coverage pay 80% of reasonable and necessary medical bills, 60% of lost wages, and includes a $5,000 death benefit, up to a limit of $10,000.

10. Why do I have to carry PIP if I already have health insurance?

Florida law requires every owner of a motor vehicle required to be registered in Florida carry PIP to protect themselves in the event of injuries sustained in an automobile accident. This coverage is primary over any health insurance.

11. What expenses are covered under Medical Payments coverage?

Medical Payments coverage pays for medical expenses which are caused by injury in an automobile accident. It covers you and members of your family who live with you regardless of who is at fault. This coverage also applies if you are in someone else's vehicle or if you are a pedestrian, as long as the accident occurs in Florida. The premiums for this elective coverage are reasonable and worth considering.

12. How long does an insurance company have to settle an auto claim?

There is no specific time limit during which the company must come to a settlement agreement with an insured or a third party claimant. However, once the person and the company have agreed in writing upon an amount, the company must pay within 20 days or pay interest as provided by Florida Statute 627.4265. Make sure however, that you do not let the statute of limitation run on your claim before you settle.

13. I have my car financed through the bank. I could not afford comprehensive and collision coverage. The bank secured coverage on my vehicle without my consent. Can it do this?

Yes, the bank has the right under their installment loan agreement to protect their interest. The loan agreement includes a provision allowing the lending institution to secure coverage and charge you for it, if you fail to obtain the required insurance. These charges are subject to interest and the premiums will be much higher than if you purchase insurance yourself.

14. Why do we have to use my insurance company if I did nothing wrong to cause this accident?

Florida law requires automobile accidents to be handled through no fault law. There are exceptions under the statute but, generally the p.i.p. portion of your own policy goes into effect when you are in an accident.  This is the classic no fault insurance that legislature designated to pay 80% of a person's medical bills and 60% of a person's lost wages, up to $10,000, whether they are at fault or not.

This situation can also occur when a negligent person causes an accident, and they are uninsured or underinsured and then you can make a claim provided under your uninsured/underinsured policy if you have paid a premium for that coverage with your insurance company. It is best to have your attorney involved with all these matters as soon as possible after your accident. The client pays premium dollars for coverage in those issues and that is what it is there for when you need it.

The answer to this questions also depends on the complexity of the case and whether it is in suit or pre-suit.  Your medical recovery and condition are the most  important considerations before resolving the claim. The degree  of certainty about your future medical condition is paramount. You do not want to sign a release without knowing whether you need future surgery or subtantial future medical bills still facing  you.  With that being said, typically the average premises liability/auto case or any other type of general negligence case is resolved within 9 months to 2 years after being signed up by the firm. Naturally, that time range is subject to fluctuation depending on the facts of the case.

In many instances people do not have insurance coverage or their PIP benefits have been fully paid and still are in need of medical care. When that is the situation some medical facilities and physicians are willing to take a "letter of protection." This is a document that gives the patient the ability to keep treating without paying for the medical bills at the time of treatment. These letters of protection typically, if accepted by the facility or physician, allow the patient to keep treating and once a recovery is made, the doctor or healthcare facility is reimbursed. However, it is always made clear to the client that even with a letter of protection in their medical file they are ultimately responsible for the medical bills in the event the case does not resolve as expected.

17. I have full coverage, why am I not covered?

Real full coverage means you have uninsured/underinsured, bodily injury, collision, comprehensive, med pay plus the state required, pip and property damage coverage. We have found that clients after an accident find that what they thought was full coverage was simply the minimum state required insurance which is very inadequate in a personal injury claim. Typically, insurance agents will give a potential consumer a quote on whatever type of coverage the consumer asks for. Full coverage can mean a variety of things but, in regards to an automobile negligence case that would entail for purposes of recovering for injuries, PIP or no-fault, medical payment benefits and uninsured/underinsured motorist coverage. The PIP coverage applies whether or not the consumer is at fault or not, the med pay benefits can make up what the PIP does not cover, i.e. 20% of the medicals, 40% of the lost wages, and beyond if extended coverage is there, and the uninsured or underinsured motorist coverage is probably the most important. Underinsured or uninsured motorist coverage allows you to collect from your own company in the event you are injured through the negligence of somebody who has little coverage or no coverage. Typically, we are asked this "full coverage" question in instance where a client of ours has been injured by someone who has no insurance and according to their sales agent, our client thought they had "full coverage." It is unfortunate and is something we deal with quite often. When this situation arises we look at all options as well as whether the insurance company properly provided an election to reject uninsured motorist coverage.

When treating with a doctor eventually we request a final narrative at the conclusion of your treatment. When we speak of conclusion of treatment, it means that when the treating physician has decided you are at MMI. This is an acronym for maximum medical improvement and simply means you are as good as you are going to get. That is not to say you are as good as you were before the accident, but your condition is stabilized and you have a loss. It is at that point that some doctors assign, and insurance companies request, a permanent impairment rating. This is generally done pursuant to American Medical Association AMA guidelines. Although it is technically not necessary to have an impairment rating with a percentage from the AMA  as a basis at trial in an automobile case, many automobile issuance companies like to have the impairment rating so they can evaluate the case. When the Florida Threshold law requires then a permanent injury and or impairment and or significant scarring or death are required to pursue non-economic damages.

Comparative negligence is a legal principle providing that the amount of a person's negligence in an accident is determined by his contribution to the accident. In Florida, the percentage of the individual's negligence in the accident is usually subtracted from the amount he would otherwise recover, if the other person were 100% at fault.

Filing suit is the actual act of filing legal papers at the courthouse. This is generally done only after a serious attempt has been done to settle your claim. There are times however, when it is best to file suit early.

When a case is actually filed that does not mean that you will one day be going to trial. However, it does mean there is a possibility and although most cases resolve before trials, there is a possibility that once your case is filed it can go to trial.

The good news is that most cases that are properly prepared are resolved before a trial, before court appointed mediation, during court appointed mediation or prior to or just  before the actual trial.Some cases are even resolved during trial.