Slip and Falls on City Owned Property

Posted By on March 23, 2017

In Florida, slip and falls happen every day whether its due to heavy rain, lack of maintenance, or even substances left on the floor. We all know that businesses such as Publix and Walmart can be held liable for a victims damages, but what if the property is owned by the city?

Does Premises Liability Change if the Government Owns the Property?

If the property owner is a city and/or a recognized municipality in the State of Florida, then different laws apply when determining if it will be held legally responsible for a slip and fall claim.

One such difference is the amount of damages a victim can recover. Meaning, there is a limit, or a cap, on how much in compensation can be awarded to a victim.
 
Seal of Miami, Florida

 

Private vs. Public Owners in a Slip and Fall Case

If you slip and fall on property owned by a private entity, like a shopping center, grocery store, hotel, or unincorporated urban area, then you can seek recovery from the property owner under Florida’s premises liability law. If you win your case, then the amount of damages you can recover from the business owner is, generally speaking, not limited by law.

In contrast, if you slip and fall on property owned by a Florida municipality and suffer identical injuries to the private entity scenario above, then you will not be able to recover the same amount of damages. In fact, unless you follow specific procedures and meet certain deadlines exactly, you may not be able to file a lawsuit against the city at all.

Determining Which City Owns The Premises

The site of your slip and fall accident may happen in an incorporated city, or in a municipality, or in an “urbanized area” as defined by the federal government.

It is critical that you determine exactly what city or governing body owns and oversees the site of your accident and injury. Under Florida Statute 180.01, a “municipality” is defined as “any city, town, or village duly incorporated under the laws of the state.”

You need to know if you fell on a site owned by a legally recognized municipality. You cannot depend upon how things look – rural land can be owned by a city, and a strip center or urbanized area can be found in an unincorporated part of the state.

For instance, the City of Miami Department of Real Estate Asset Management reports that the City of Miami covers approximately 35 square miles with a property inventory “…consisting of approximately 631 parcels inclusive of parks, fire stations, City administrative buildings, public facilities, vacant lots and housing sites.” Additionally, there are places like the University of Miami that may be included as city property for the purposes of a slip and fall claim.

Slip and Falls on City-Owned Property in Florida

So, what can you do if you are hurt in a slip and fall on city property? Here are some things you need to know:

Accident victims can be hurt on government property while visiting a ball park, having a picnic, crossing a street, or walking the dog along a city sidewalk. Injuries can happen due to acts of negligence such as:

  • Cracks in sidewalks
  • Grates or covers in the footpath
  • Changes in elevations of walkways or sidewalks
  • Potholes in streets
  • Puddles of water
  • Slippery surfaces caused by oil or sand
  • Foreign objects (including trash) in the foot path
  • Curbs without adequate warning (paint, markers, signs).

For more on slip and fall accidents, see:

Sovereign Immunity Protects Florida Cities

Cities are not run at a profit; they are financed by tax dollars. Public policy deems cities to be worthy of special legal protection from accident injury claims for damages.

Accordingly, the protections in the law include (1) to protect taxpayers and the public treasury from being held liable for huge injury claims and (2) to insure that the community does not suffer from needed financing because of funds being diverted to pay injury damage awards.

Doctrine of Sovereign Immunity

This is done through the doctrine of “sovereign immunity.” Under the doctrine of sovereign immunity, you cannot sue the government for civil damages. It is legally protected from being held liable for your claim. To learn more about this doctrine, read Article X, Section 13 of Florida Constitution.

However, sovereign immunity isn’t without its limitations. It’s not always fair to block the government from being held financially responsible for an accident that its agents or employees caused to happen.

So, the Florida Legislature has passed a law that provides an exception to this general rule of sovereign immunity.

Florida Statute 768.28

Under this limited waiver of sovereign immunity (stated in Florida Statute 768.28.), cities in Florida can be held responsible for injury or loss of property, personal injury, or death caused by the negligent act or omission of any city employee done within the scope of his or her employment.

Additionally, corporations primarily acting as instrumentalities or agencies of the municipality can be sued for damages, too. This includes places like the University of Miami, as one example. See, Jaar v. University of Miami, 474 So. 2d 239 (Fla. Dist. Ct. App. 1985).

However, before you can proceed with a slip and fall accident claim against a Florida city under this statutory exception to sovereign immunity, you need to know the protocols that must be followed in these cases. (see next section)

Pre-suit Notice

Before a lawsuit can be filed for damages sustained in a slip and fall accident on city property, the accident victim must provide notice to the municipality that he or she intends to file the lawsuit.

Be aware that it must be written on paper. Email notices will not be legally valid. Additionally, it must be sent to the appropriate city office.

If you were injured on a university sidewalk or at a city park, then you need to research and make sure that you are providing notice to the right department or city subdivision. Failure to send your written notice to the right place can end up getting your entire damage claim dismissed.

What does your written pre-suit notice have to state? 

While many city websites (like Miami, see below) provide forms, Jeff Atwater, Florida’s Chief Financial Officer explains “… a narrative letter describing the facts and nature of your claims is usually sufficient.”

The notice should include details about what happened in the incident, with details like:

  • The address and exact location of the slip and fall
  • What direction you were walking
  • What problem (crack in sidewalk, etc.) caused you to slip and fall
  • Witnesses to the event
  • Photos or other documentation of the event
  • Medical documentation and support of your injuries
  • Documentation supporting your damages.

You have a deadline for filing this pre-suit notice, too.   Notice of your accident claim must be made within three (3) years of the event.

Additionally, you cannot file your injury lawsuit for six months (180 days) after the notice is given. However, there is an exception. If the city denies your claim before that deadline, then you are free to file your injury lawsuit.

City of Miami Site Form Examples

For slip and fall accident victims hurt on property owned or operated by the City of Miami, see:

Also of interest, the City Attorney for the City of Miami publishes reports on the status of claims made against the city online.  Check out the accident claims, including wrongful death, filed against the City of Miami and their status in the May 2016 City of Miami Litigation Report.

Limits on Recovery from the City

If you do file a claim against the city, then you have to be prepared for the municipality to reduce your damage claim no matter how valid it may be. Why? There are legal caps on the amount of money that a slip and fall accident victim can recover from a city or municipality in Florida.

Under Florida Statute 768.28(5), cities in Florida cannot be held liable for punitive damages or interest covering the time period before the judgment.  Additionally, actual damages are capped at $200,000.

Meaning, it does not matter how serious your injuries are and the ongoing medical care and treatment you may need.  The sovereign immunity doctrine will apply here and you will not be able to recover any amount of damages over this statutory cap.

Attorneys’ Fees Limitation

The Florida Legislature has determined it best to limit and control the percentage that the plaintiff’s bar can charge clients in sovereign immunity cases.

In Florida, personal injury attorneys usually work on injury cases under a “contingent fee” basis. Meaning, they charge a percentage of any recovery obtained in the case.

However, under Florida Statute 768.28(8), the accident victim’s lawyer is capped on what he can charge his client. Attorneys can earn a maximum fee of twenty-five percent (25%) of the recovery.

This is a much lower percentage that the attorneys’ fees customarily charged in slip and fall cases involving private defendants. As a result, many Florida personal injury lawyers will decline to take these cases against a Florida city or municipality. They will argue it isn’t profitable enough for them to handle.

What Should You Do?

If you have been injured in a slip and fall accident on property owned by a city or municipality here in Florida, then that governmental body may be liable to you for premises liability damages resulting from your accident.

There are special circumstances to consider in your case because the government will be asked to cover your damage claims and that is only allowed by law in certain situations.

An experienced Florida slip and fall lawyer can be very helpful in pursuing your claims for damages and in seeking justice for your harm.  However, not every Florida personal injury lawyer will represent slip and fall victims seeking justice from a city or municipality.

A good piece of advice if you you or a loved one have suffered a slip and fall on city owned property, is to speak with an experienced personal injury lawyer before you file a claim to learn about some of the common disputes that can arise with these claims, including the type of evidence needed to prove a claim and the type and amount of damages you can recover. Most personal injury lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person) to answer your questions.

You May Also Be Interested In: Frequently Asked Questions on Slip and Fall Claims (The Basics).

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Do you have questions or comments? Then please feel free to send Alan an email or call him now at (954) 458-8655.
 
 
 
 
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Hotel Injuries Caused By Chlorine    

Posted By on March 9, 2017

Hotels are legally responsible for keeping their hotel guests and invitees safe from harm during their stay.  Florida state law has specific provisions for the hospitality industry.  These laws can be found in Chapter 509 of the Florida Statutes.

Under these statutes, as well as common law, Florida hotels are held to a high standard of care or safety when it comes to protecting their invitees.

For example, if there is an accident in a Florida hotel pool where someone is hurt by another hotel guest in an altercation or a hotel guest slips and falls in their hotel room bathroom or shower, then the hotel may be legally liable for damages and subject to a negligence claim.

Hotel guests and visitors should know that a hotel’s duty of safeguarding its visitors and guests goes beyond providing adequate security, fire safety, food protection and preventing slip and falls.  Even measures like properly securing chemicals or monitoring chlorine levels in a pool or spa are included in their duty of care.
 
The Peninsula Bangkok Pool
 

Hotel Swimming Pool Injuries from Chemicals

Hotel owners and operators also have a duty to use pool chemicals in order to keep hotel guests safe from serious infections and illnesses caused by bacteria that would otherwise grow in the standing water of a hotel pool.

Pool Chemicals Can Be Dangerous

Pool chemicals often cause injuries because of improper use and storage.  People can become sick and seriously injured from pool chemicals especially when (1) incompatible products are mixed together; (2) chemicals are spilled or sprayed; and/or (3) fumes escape from a chemical container.

See, “Acute Illness and Injury from Swimming Pool Disinfectants and Other Chemicals United States, 2002-2008,” published by the Centers for Disease Control and Prevention in October 2011.

Pool chemical injuries can include respiratory problems; damage to the eyes; and skin injuries.  Some of these injuries can be serious and even life-threatening.

Hotel Pools May Look Safe But Beware: CDC Statistics

The Centers for Disease Control and Prevention (CDC) monitor the health and safety of public pools, including hotel pools and compile their research into annual reports. From the CDC data we know:

  1. Over 10% of Open Hotel Pools May Need to Be Closed For Public Health SafetyAlmost 1 in 8 (12.1% or 13,532 of 111,487) routine pool inspections conducted during 2008 identified serious violations that threatened public health and safety and resulted in an immediate closure.
  1. More than 10% of Public Pools Have the Wrong Levels of Chlorine: More than 1 in 10 (10.7% or 12,917 of 120,975) routine pool inspections identified pool disinfectant level violations.

Pool Shock

One example of hotel safety concerns for guests is the common practice of tossing high amounts of chlorine all at once into the swimming pool.  This process is called pool shock.

Why do this?  Florida is an inviting environment for bacteria to grow, and keeping it at bay is a constant fight here. Often, hotels will put extra chlorine into their swimming pools to kill off the rapidly growing bacteria.

Hotels should not allow swimmers to enter the pool or pool area during pool shocking. Anyone who wades into the swimming pool during the shocking process will be exposed to high levels of chlorine.  They may suffer from respiratory problems, or even burns on their skin as a result.

There should be warning signs and other protective measures taken during any pool shock.  Failure to warn and failure to keep swimmers out of the pool area during a pool shock may be the basis of an accident claim.

Most Common Pool Chemical

The most popular pool chemical is chlorine.  It comes in the form of chlorine chalk tablet, liquid, or powder.  They release and disperse the chemical into the pool water.  The chemical kills bacteria in the pool that might be harmful to humans, like giardia and e. coli.

However, chlorine is a toxin. Meaning, it is poisonous to humans.  The trick is balancing using enough chlorine to kill bacteria but not so much that it can harm the humans swimming in the pool water.

Recreational Water Illnesses (RWIs)

Swimmers who are harmed from swimming in a hotel pool may suffer something experts call a recreational water illness, or RWI.   Here, the swimmer is harmed by chemicals in the water itself, either by absorbing the chemical into his or her skin or by swallowing some of the tainted water.

RWI can also be caused by chemicals that have evaporated from the pool into the air.  In this case, those in and around the pool may be harmed by inhaling chemical fumes.

RWIs are usually considered minor injuries.  The CDC reports diarrhea as the most common complaint of RWIs, but victims can suffer from gastrointestinal, skin, ear, respiratory, eye, neurologic and wound infections.

However, recreational water illnesses can be serious.  When a hotel guest is exposed to chlorine at the hotel swimming pool, they may suffer from severe harm (including death).

Chlorine Poisoning

Chlorine can poison you and it can cause serious damage to the respiratory tract if it is inhaled.  It is a toxin that can permanently harm or even kill you if swallowed.

Here’s an example of how dangerous chlorine can be: it was used in World War One as a weapon of poison gas.  Chlorine has also been reported by the New York Times to have been used as a chemical weapon in Syria in 2015.

1.  Inhaling Chlorine Gas Vapors

How is it lethal?  If there is too much chlorine in the swimming pool, the chlorine gas will collect on or near the water’s surface.  Chlorine is heavier than air.  Swimmers who breathe in the chlorine gas can be injured.

Extremely high levels of chlorine in swimming pools can release gas off the surface, and cause chlorine poisoning.  You cannot readily see the gas vapors, and by the time you realize that you smell something unusual (chlorine has an odor similar to bleach), your system may already be compromised.

2.  Swallowing Chlorine in Pool Water

Chlorine is a powder, liquid, or solid that reacts with water and turns into gas. It also happens when someone swallows chlorine in a pool.

As Healthline explains, chlorine will react with the water in your digestive tract just as it does with the water in the swimming pool.   Chemically, when chlorine turns into a gas it forms both hydrochloric acid and hydrochlorous acid.  Both are toxic to humans.

This means that swimmers who are exposed to chlorine in its solid powder form at the pool and swallow it are vulnerable to serious injury.  Swimmers that swallow water with excessive amounts of chlorine gas in it are also at a high risk of bodily injury form chlorine poisoning.

Symptoms of Swimming Pool Chlorine Poisoning

According to the CDC, symptoms of chlorine poisoning from a hotel swimming pool can include:

  • Nausea
  • Vomiting
  • Burning in throat
  • Itchy and watery eyes
  • Dull pain in chest
  • Difficulty breathing
  • Shortness of breath
  • Blurred vision
  • Blisters on the skin

Long Term Damage from Chlorine Poisoning

If someone breathes in a large amount of chlorine or high concentration of chlorine gas, then he or she may die from the poison.  Survivors may suffer permanent harm to their respiratory system.  This includes pulmonary edema (fluid in the lungs).

The Mayo Clinic advises that pulmonary edema can develop suddenly (“acute pulmonary edema”) and may cause death if there is not fast medical treatment.  However, if emergency treatment is provided, then the prognosis is better.  It is possible to recover from pulmonary edema caused by exposure to chlorine at a hotel swimming pool.

Additionally, chlorine exposure from inhaling or swallowing chlorine can damage your circulatory system.  Chlorine exposure can also permanently harm your eyes and vision.

Chlorine Burns

If there is too much chlorine in the pool water, the swimmer’s skin can be exposed to the chemical.  The chlorine gas can also damage skin tissue.

Chlorine is a chemical that can burn the skin just as an open flame can cause a burn.

Also, when skin comes into contact with high levels of chlorine in the air near the pool, a chemical burn can result.  Chlorine gas can also cause a chemical burn, even if the hotel guest never enters the pool water.

Steps to Take After Hotel Pool Chlorine Chemical Burn

Those who experience a burn while in a hotel swimming pool should be quick to exit the pool and the pool area.  They should strip off their clothing and safeguard it for testing later, along with any towels, shoes, etc. that they had poolside.

Next, it is recommended that chlorine burn victims shower with cool or cold water for an extended time.  Soap can be used to remove the chlorine from the skin surface.  Medical treatment should be sought.

What Kind Of Damages Can Be Recovered In A Chlorine Injury Claim?

We have spoken about the different types of injuries a victim may suffer due to overexposure to chlorine. Now, if you or a loved one have suffered injury due to a hotels negligent maintenance and regulation of the chlorine levels in the swimming pool, you may file a claim against the business. If you or the victim chooses to do so, there are a variety of damages one can receive if their injury claim prevails.

These can include economic and non-economic damages. Economic damages are those that can be tallied through invoices such as hospital bills and medical equipment, or through calculations of money lost over time such as lost wages. Non-economic damages are those related to pain and suffering and loss of the enjoyment of life, that aren’t set money values and must be calculated by weighing factors such as time, level of pain, and the recovery process, to name a few.

Read more: Economic vs Non-Ecomonic Damages

National Capital Poison Center

If you or a loved one suspect you have been injured by chlorine, then you can call the National Capital Poison Center at any time (day or night) for free advice.  Experts there can confirm if you are suffering from exposure to chlorine and how best to get immediate medical treatment for chlorine exposure.

The NCPC phone number is toll-free (1-800-222-1222) and there is no charge for contacting them.

What Should You Do If You Are A Victim Of A Hotel Chlorine Injury?

If you have been injured by chlorine at a Florida hotel swimming pool or spa, then the hotel owner and operator may be obligated to compensate you for your damages, including your pain and suffering.

A good piece of advice if you you or a loved one have suffered from exposure to chlorine at a Florida hotel swimming pool, is to speak with an experienced personal injury lawyer before you file a claim to learn about some of the common disputes that can arise with these claims, including the type of evidence needed to prove a claim and the type and amount of damages you can recover. Most personal injury lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person) to answer your questions.

You May Also Be Interested In:

Florida Hotel Guests and Hotel Injuries: Do Hotels Consider their Duty to Provide Safety and Security as “Risk Management”?

Hotel Accident Claims: Hurt in the Hotel Pool

Can a person entering a hotel to use the swimming pool without authority change their status from trespasser to invitee by befriending or conversing with hotel guests?

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Do you have questions or comments? Then please feel free to send Alan an email or call him now at (954) 458-8655.
 
 
 
 

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Florida Personal Injury Settlement Disputes

Posted By on February 23, 2017

In Florida, when an injury victim opts to negotiate a personal injury claim with the insurance company on their own, he or she needs to be prepared to deal with sophisticated adjusters who strive to keep settlements as low as possible.

Insurance adjusters are trained to negotiate settlements in the insurance company’s favor. This means that a victim will likely be in a position of unequal bargaining power. That discrepancy of bargaining power is what usually leads to a dispute when it comes to a personal injury settlement.

To help level the playing field between accident victims and insurance companies, we created a free guide for those Florida accident victims who wish to negotiate their insurance claim on their own.  You can download our free e-book on settling a Florida personal injury claim without a lawyer here.

 

Car-accident

 

Common Reasons Why The Parties Disagree and Are Unable to Settle a Florida Accident Claim

For an accident victim, preparation, organization and honesty are the keys to settling a personal injury claim on their own.  Knowing in advance some of the common issues that may surface in a settlement dispute can be very helpful.  In our experience, you may run up against the following:

1. Causation

One of the most common disputes an insurance adjuster will use is regarding causation. So, a question you will have to ask yourself is, “what caused the car crash, or the slip and fall?”

As the claimant, you will not only have to provide proof of the accident, but also provide proof of what caused the accident to occur. By providing convincing evidence of causation, you will have a better claim against the insurance company and the at-fault party.

For more information, read: What is Concurrent Causation?: Determining Who Pays Damages For Your Injuries When More Than One Person is Negligent

2. Fault

After you have established the cause of the accident, the next question from the insurance company will involve fault.  Who was at fault?  Who caused the car crash, or slip and fall accident?

Your claim will need to explain why their policyholder is at fault for the accident.  Facts will need to be presented to show that their policyholder made a mistake that ended with you being injured.

In legal terms, you will need to show that their policyholder had a (1) legal duty to you that (2) was breached and (3) caused your harm.

What you need to do here will depend upon your type of accident.  Car crashes will be treated differently than slip and falls, for instance.

Also, expect a dispute over whether or not your own actions caused, or contributed, to the accident.  The insurance adjuster may argue that you were at fault, at least partially.  This will lessen the amount of damages that the insurance company will have to pay on your claim.

In Florida, this legal concept is known as comparative fault.

For more, read:

Fault, Blame, and Damage Claims: Contributory Negligence in Florida

Does Fault Impact Damages in a Florida Car Crash?

a.  Premises Liability

Slip and falls in Florida are also known as “premises liability” claims.  Florida’s premises liability law imposes legal duties upon business or property owners.  

For example, the owner or operator of the property where the slip and fall occurred has a duty to keep the premises reasonably safe for invitees, clients, customers, and guests (the duty owed to an invitee varies depending on what caused the slip and fall – was it because of a transitory substance on the floor of a grocery store?).

Disputes often arise as to the duty owed to the victim as well as whether or not the business owner acted reasonably and/or had knowledge of a dangerous condition.

See our related posts:

How Do You Know If A Business Acted Reasonably In Trying To Prevent an Office Slip and Fall Accident?

How Do You Know If A Business Acted Reasonably In Trying To Prevent a Parking Lot Slip and Fall Accident?

a.  Car Accidents

Often, in car accidents the insurance company will dispute who caused or who was at fault for the accident – it is important to know how an insurance company determines whether or not a driver was acting reasonably at the time of an accident.

For more, read our posts including:

How Do You Know If A Driver Acted Reasonably In Trying To Prevent a Loss of Control Car Accident?

How Do You Know If A Driver Acted Reasonably In Trying To Avoid A Rear End Car Accident?

3. Amount of damages

Accident claims consists of two parts: (1) liability and (2) damages. To prove liability, the victim must show the policyholder was responsible or at-fault for the accident. To prove damages, which is the compensation a victim receives to make them whole again, the victim has to provide documentation and, in some instances, expert testimony.

Damages are legally defined under Florida law. When a victim files their own accident claim, they should know what damages are recoverable, which can be economic or non-economic in nature.

The insurance company may dispute your claim by saying that you were not hurt as bad as you say you are or that you were not hurt at all.

For more, see our related articles:

4 Factors Used To Determine The Amount of Damages Suffered By An Injured Car Accident Victim

Who Pays for Damages In a Florida Traffic Accident When The Driver is On the Job?

4. Medical treatment

It’s important to get medical treatment after you have been injured. That should be your first priority. However, be aware that claims for certain kinds of medical treatment may be disputed.

For instance, where you go for medical care may be an issue. Different kinds of health care professionals are treated differently under our personal injury laws. For example, chiropractors may be of great help to your injury, but there may be a limitation on the amount or type of treatment you can receive under certain insurance policies.

Moreover, you may have a time deadline to seek treatment.  In a car accident, under Florida’s PIP law, a car accident victim has a 14 day deadline to seek medical treatment.

For details, read our posts about:

Florida Car Accident Compensation Law

Florida Personal Injury Lawsuit Risks

5. Certain damages are not covered under the policy

Insurance policies do not cover every type of harm that can happen in an accident. The sad reality is that accident victims may face having losses that will not be covered by the person responsible for their injuries.

For instance, your economic damages may not be covered. These are things like the EMS bill, your doctor expenses, and the tab at your local pharmacy. For example, having surgery done on your shoulder after a car accident may have greatly improved your shoulder injury, but an insurance adjuster may argue that the surgery wasn’t necessary.

Other losses, called non-economic damages, may not be covered.  These are things that usually don’t have corresponding invoices.  The most commonly known non-economic damage is pain and suffering. Also, victim can collect “loss of enjoyment of life” damages for not being able to attend his or her son’s graduation.

Non-economic damages are just as real to a victim, but insurance companies usually have limits or exclusions regarding these damages.

For more, read our posts including:

What Kind of Florida Personal Injury Money Award Can You Expect To Receive if You Are Injured? Economic vs Non-Economic Damages

How Do You Recover Emotional Distress Damages in Florida?

6. High medical bills

Doctors set their fees and hospitals can charge a high price because both are in business to make a profit. Your claim must include all your medical expenses if you want them to be covered by the insurance claim. However, insurance adjusters are not interested in the reasons that your surgeon set his or her rate at a high amount. Insurance companies have their own way of looking at health care charges. Because of this, you may have a huge fight on your hands over whether or not that bill should be paid, and if so, how much will be covered.

For example, one of the most common injuries that arise out of a slip and fall are ankle injuries. These include breaks, sprains, fractures, and even pain. The cost of doctors visits, treatment, and pain medication add up quickly and may be devastating to a victim who is forced to incur these expenses. Knowing how to handle a dispute with an insurance adjuster who is trying to avoid compensating a victim for his or her treatment can make a huge difference to the outcome of the claim itself.

Additionally, insurance companies have comparable charges in your area for the health care services you received. If your claim is much higher than those comparables, expect a challenge to that claim item. Hint: talk to the business office of that physician, clinic or hospital. They may be able to help you deal with the insurance adjuster and get the bill amount respected and paid.

For more, watch:

Why is it so difficult to get a car accident settlement from a car insurance company?

What is the best accident claim advice that I can share?

7. Reasonableness of medical bills

The amount of your medical expenses will be reviewed by the insurance adjuster.  So will the procedures that have been coded and billed by the medical provider.

These items will be evaluated to answer questions such as: “Was the charge reasonable for your area?” and “Was the expense reasonable and necessary?”

Insurance companies use sophisticated software programs to analyze accident claims. Not only will the type of procedure be considered for reasonableness, but also the area and location in which it took place. Reasonable fees for a procedure in Miami-Dade County may be much different than in Orlando or in Tampa.

The insurance company may only want to pay what it deems appropriate based upon its own internal company determinations, so you may have a dispute over the reasonableness of the amount charged by your health care providers.

For more, see:

Colossus and Xactimate: Did You Know That Big Insurance Companies Use Software Programs To Decide How Much Your Injury Claim Is Worth? [Evaluating Your Car Crash Claim or Slip and Fall Injury Case Part 1]

What are Independent Medical Examinations (IME) and How Do They Relate to a Florida Damage and Injury Compensation Claim?

8. Insurance Company Bad Faith

Under Florida law, insurance companies are held to a legal duty to act in good faith in the settlement of accident claims. Of course, the reason that the law has imposed this duty upon insurance carriers here in Florida is because they were denying valid accident claims in bad faith just to save company money.

If you believe that your accident claim was denied wrongfully, then you may have a new legal action to consider.  You may have a lawsuit based upon “bad faith” by the insurance company.

Bad faith legal actions are independent of accident claims. They are civil lawsuits filed against the insurance company for an intentional bad act.

For more on bad faith insurance claims, see our posts:

Abusive Insurance Adjusters – Leveling The Playing Field

How Do You Know If Your Settlement Offer From the Insurance Company is Fair? Have You Considered All of The Factors Involved in a Florida Damages Claim?

9. Questioning Claims for Back Injury Damages

Often, serious accidents result in back injuries. The human body is vulnerable to spinal cord injuries, as well as injuries to the spine itself, such as herniated discs. Less severe injuries can also be very painful and long-lasting; these are called “soft tissue injuries.”

Unfortunately, insurance companies are skeptical of back injury claims. If your accident claim involves a back injury, then you need to be ready for a dispute over the validity of your claim and the extent of your harm.

a. Did accident cause the back problem – didn’t show up right away

One common dispute involving accident claims based on back injuries happens when the back injury does not reveal itself at the time of the accident.

The human body is complicated; sometimes, an accident victim may walk away from the accident scene thinking they haven’t been hurt badly. Weeks or even months later, the back injury reveals itself.

When a back injury is delayed onset, it is likely that the insurance adjuster will argue that the accident was not the cause of the harm (also known as “delayed-onset injuries.”)

Medical experts may be needed to provide their explanation in support of your claim. Back surgeons and other health care providers who work with spinal injuries are well versed in insurance company attitudes to back injuries.

For more, read:

Did You Delay Seeing A Doctor Because It Didn’t Hurt That Bad At First?: The Case Of The 5 Month Back Surgery Delay

Delay in Doctor Visit: Waiting to See a Doctor Can Be Used Against You

b. Causation dispute especially if there is back surgery involved

Another common dispute between accident victims and insurance adjusters in back injury claims involves causation. When there is a prior back surgery, then the claim may be dismissed or denied under the argument of “pre-existing condition.”

Again, the opinion of medical experts can be very important here. A past back injury may have nothing to do with the current back injury that was caused by the accident. Your doctor may be able to clarify the distinction and get your claim paid.

Read: Can a Pre-existing Condition Hurt Your Accident Claim?

What Should You Do If You Have A Dispute Over Your Personal Injury Claim?

Attorneys can be very helpful in negotiating with the insurance adjusters simply because most experienced personal injury attorneys can tell you how most insurance companies respond to an injury claim and they can share their past experience in dealing with an individual company or adjuster.

Also, if the victim and the insurance company cannot resolve their differences about causation or the value of a claim, then a victim may be best served by having a personal injury trial lawyer file a lawsuit and present their case to a jury.

A good piece of advice if you have a personal injury claim and are trying to settle the claim on your own, is to speak with an experienced personal injury lawyer before you file a claim to learn about some of the common disputes that can arise with these claims, including the type of evidence needed to prove a claim and the type and amount of damages you can recover. Most personal injury lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person) to answer your questions.

You May Also Be Interested In:

How Much Money Can You Expect From Your Florida Car Crash Claim? Try Our Car Accident Compensation Form

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Do you have questions or comments? Then please feel free to send Alan an email or call him now at (954) 458-8655.

 

 

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Can fault in an automobile accident claim be shared between parties?

Posted By on February 14, 2017


In this video, Alan Sackrin answers a question that he has been asked many times before by clients and visitors to this site. If you have questions after watching the video, Alan is available to talk with you now and answer your questions free of charge:

Q: Can fault in an automobile accident claim be shared between parties?

A: Fault in Florida car accident cases can in fact be shared by multiple parties. In fact, there are some cases where 3 or 4 drivers are found at fault in causing a collision. Fault just means the failure to use reasonable care. Fault is the same as negligence. In many multi-vehicle car accident cases, there is shared responsibility where a jury, if it goes all the way to a jury, assigns percentages of fault to the different motorists that were involved in the car crash. That could be also you, as the plaintiff. You could also be found at fault, as well as another driver. That’s called comparative fault or comparative negligence. It’s a very complicated area of the law, and that’s why you need a Florida bar board certified civil trial attorney to guide you through the process.

Related:

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Do you have questions or comments? Then please feel free to send Alan an email or call him now at (954) 458-8655.

 

 

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Shoulder Injury Claims Caused By A Car Accident

Posted By on February 9, 2017

Shoulder injuries are one of the most common car accident injuries which, in some instances, can be devastating to one’s health. Whether the victim is the driver or the passenger of the vehicle involved in the crash, he or she can suffer severe injuries to his or her shoulder(s) that can last a lifetime.

That is because the shoulder is a very complicated joint and considered one of the three most complex joints in the human body.  Why?  It has a ball and socket connection (as do the knees and the hips). Also, the structure of the shoulder includes interrelated muscles and tendons that allow not only for support of the joint but also motion of the arms, neck, and back.

Despite how common this kind of injury is in an auto accident, and the complexity of the joint, victims often face insurance adjusters who dismiss shoulder injury claims which makes these claims difficult to settle.

Here’s why.

Shoulder joint

 

1.  Different Types of Car Accident Shoulder Injury Claims

Shoulder injuries aren’t always black and white. Depending upon whether or not the bones are involved, there are many different shoulder injuries that can occur as a result of the impact of a car crash.

Below you will find details on each type of injury one can sustain to their shoulder.

A.  Fractures

A “fracture” is the medical term for a broken bone.  The shoulder is comprised of several bones that may not remain intact after a serious car crash. The bones that make up the shoulder are the:

  • clavicle (collar bone);
  • proximal humerus (top of arm bone);
  • scapula (shoulder blade).

Fortunately, most fractures to these bones can be treated without surgery unless the fragments are forced out of position. These fractures can result in one or more of the following:

  • Pain
  • Swelling
  • Bruising (mild or severe)
  • Immobility; or
  • Limited range of motion
  • “Dead arm” sensation

Doctors recognize that the scapula (the shoulder bone) is commonly fractured or broken from high impacts such as the force sustained in a car crash. This is true due to the fact that the scapula is protected by several muscles and the chest.

B.  Dislocations

Another kind of shoulder injury is a “dislocation.”  Here, the bones are not aligning in the joint as they should.

The shoulder has three main joints. These include:

  • acromioclavicular joint (collar bone joint)
  • glenohumeral joint (the ball and socket joint)
  • sternoclavicular joint (between the clavicle and sternum)

The dislocation of one of more of these joints after an auto accident can result in a lengthy recovery for a car accident victim. The victim’s recovery can involve ice packs, pain killers, the very unpleasant “popping back in” of the dislocated joint into the socket, or maybe even surgery.

C. Soft Tissue Injuries

Another type of shoulder injury a car accident victim can sustain are soft-tissue injuries.  Such injuries are tears (“sprains”) in the victim’s ligaments, muscles, or tendons as a result of the impact of the car crash. There can also be labral tears and rotator cuff tears in the joint itself (the “joint capsule”).

In addition to tears, there can also be strains and contusions (bruising) in the soft tissue.

These kinds of accident injuries are considered by doctors to be acute soft-tissue injuries because they are caused by a sudden trauma to the body, such as when a car accident occurs.

Soft tissue injuries to the shoulder after a car accident can be very serious.  For instance, if the car accident causes a severe sprain (Grade 3), then the shoulder ligament is completely torn apart.  The joint will not be functional for a significant period of time, and therefore, the accident victim should be compensated as such.

2.  Did You Seek Help of a Medical Expert to Treat Your Injury?

After a car accident where the victim has suffered a shoulder injury, more than one kind of medical professional can be involved in the care and treatment of the injured person. The treating physician may call in specialists, like an Orthopedic Surgeon to consult on whether or not surgery is warranted.

Medical experts can be expensive, which can increase the value of a claim.  Be aware, an insurance adjuster may claim the severity of a shoulder injury did not warrant surgery or the intervention of an orthopedic specialist.

3.  Difficulty in Treating a Shoulder Injury

Due to the complexity of the shoulder joint as well as the variety of damages the joint can sustain in the sudden impact of a car crash, these injuries can be very difficult to treat.

Surgery, Immobilization, Rehabilitation

Shoulder injuries may require more than one surgery, as well as prolonged physical therapy and rehabilitation.  The victim may suffer long periods of time where the his or her shoulder is immobile. Afterwards, the shoulder may have a limited range of motion during the healing process.  Sometimes, the shoulder joint does not recover full mobility, in which case, there is permanent damage and impairment.

Even if there is a dislocation or separation without any fractures, there can be weeks or even months of recovery ahead. The duration of this process can vary depending on how many broken bones are involved.

However, if a fracture is involved, this can mean months of specialized treatment and oversight of surgery and surgical recovery as well as immobilization, rehabilitation, and therapy.

Impact on the Value of the Accident Claim

From a legal perspective, because of the difficulty in treating an injury to a shoulder joint, an insurance adjuster may need to be educated about the accident victim’s pain and suffering. After providing the adjuster with the victim’s medical records and his or her course of treatment, the adjuster should acknowledge the victim requires an increased amount of medical care and treatment to help recover from his or her injuries.

In other words, depending on the course of treatment and the length of recovery, some shoulder injury claims can be larger than other bodily injury claims.

4.  What Caused the Shoulder Injury?

The nature of the shoulder injury itself may provide evidence on the issue of negligence and the cause of the injury. For instance, if the shoulder injury is sustained on the driver’s left shoulder, then the driver’s seat belt may have caused some of the harm.  How?

While it is true that the use of a safety belt saves lives, it is also proven that safety belts can cause injuries in a car crash.  This is true, regardless of what caused the car accident.

A shoulder injury can be caused by a seat belt in an auto accident for a number of reasons, including:

  • Having the seat belt on too tight;
  • Wearing the seat belt improperly (having the belt too high or too low on the body upon impact can result in a shoulder injury); or a
  • Defective safety belt.

An insurance adjuster will investigate if the belt itself caused the harm to the shoulder because of mis-use or because of a defect.

If the adjuster can support this argument, then he or she may use that as an excuse to deny the claim or make a low-ball offer.

Thus, a victim may need an expert opinion (this can be done via a sworn statement and/or a deposition), not only from the doctors, but also from industry experts, on safety belts and their use and operation.

Establishing Fault

It is important to any injury claim that the car crash victim be able to establish the other driver was at-fault. The insurance adjuster will try through all means necessary to assign fault on the injured victim to avoid paying any compensation.

A victim can prove the other driver was at fault by proving he or she was not acting reasonably at the time of the crash. Some issues to consider when trying to prove to the adjuster that their insured driver was at fault are:

  • What speed was his car being driven at the time of the accident? Was he speeding?
  • What were the road conditions at the time of the accident?
  • Was the driver being reasonably cautious and aware of the weather conditions and dangers, like standing water on the roadway?
  • Was the driver on the phone? Was he chatting with other passengers in the car?
  • How old was the driver? How much experience did he have behind the wheel?

Read: Was The Driver Reasonable in Your Loss of Control Crash?

5.  Is the Shoulder Permanently Injured because of the Car Accident?

When a shoulder has been severely injured in a motor vehicle accident, there can be a life-altering change to the body and the joint may never fully recover. There can be limitation of movement resulting in loss of control of the arm or hand to some degree as well as extended pain and trauma.  Arthritis may also develop as a result of a shoulder injury.

Replacement Surgeries

Medical advances are working to help victims of shoulder injuries.  This includes full shoulder replacements by orthopedic surgeons.  The procedure is called a “total shoulder replacement arthroplasty.”

However, these shoulder replacements are not as successful as other types of replacement surgeries.  Any claim valuation must include the potential need for continued treatment after replacement surgery has occurred, along with any possible complications, risk of death, pain and suffering, disability, loss of consortium, etc.

An insurance adjuster may consider these claims as unnecessary or unreasonable which is why your demand package needs to be complete when making a claim. Thus, you should include your medical records and the doctor’s recommended course of treatment.

Read: 5 Documents You Should Include With Your Slip And Fall Demand Letter

Loss of Use of the Shoulder

If true, shoulder injury claims should include a written opinion of a medical expert that the damages are permanent.  The loss of use of the shoulder joint can not only impact the victim’s enjoyment of life, but can also impact their ability to earn a living.

The accident victim will need the written opinion of the expert to convince the insurance adjuster the procedure was medically necessary. This usually comes in the form of a written statement by his or her doctor after treatment is completed, where the doctor will give a doctor report stating the permanent partial disability with the impairment ratio in a percentage format.

6.  Valuing a Shoulder Injury Claim

When an accident victim presents their injury claim to the at-fault drivers insurance adjuster, he or she needs to be prepared to go to trial if their settlement offer is excessive.

This means that they should reasonably “value their case” as part of their negotiation strategy.

  • How much will the insurance company be willing to pay on this claim in settlement?
  • What’s the bottom line that the accident victim is willing to take in settlement before taking the case to a jury?

In a shoulder injury, the victim must consider not only how serious that shoulder damage is (and the likelihood of permanent harm), but also how a jury would view their claim.  How likely is it that the jury will find the other driver responsible for what has happened?

Experienced personal injury lawyers will be able to help in this analysis.  Their past experience with juries – as well as their experience with adjusters and insurance defense lawyers – can be invaluable here.

Valuing the Case:  Calculating the Damages

Shoulder injuries will have some damages that are easy to calculate, and others that are not. There are two main categories for damages that an accident victim may receive: economic damages and non-economic damages.

Economic damages are those that are monetary, such as medical expenses. These may include emergency room treatment, hospitalization, doctor’s visits, and physical therapy.

The impact on the ability to work can be shown as monetary damages, as well.

Some permanent shoulder injuries can mean the loss of a career and therefore, lost wages.  For example, a commercial truck driver may no longer be able to drive a big rig after a serious shoulder injury.  His claim can include documentation to show how he must find a new line of work.

Often times, shoulder injuries may mean a long-term career adjustment.  For instance, a high school basketball coach who can’t shoot baskets any longer can still teach, but his job is still impacted.

Non-economic damages are those that are fluid; not monetary. These damages will also need to be compensated for. Below is a list of non-monetary damages a victim of a car accident who filed a shoulder injury claim may receive:

  • Pain and suffering
  • Mental anguish
  • Wrongful death
  • Loss of consortium
  • Emotional distress
  • Disfigurement
  • Disability

For more on pain and suffering damages, see, “What is Pain and Suffering under Florida Law?

Valuing the Case:  Jury Awards

Finally, in a shoulder injury claim, it is important for a victim to understand how a jury might view a claim so he or she can understand how liability may be assigned to the parties.

  • Will they find the defendant sympathetic?
  • How strong is the evidence showing that driver at fault?
  • And what will the jury think about that shoulder injury? Will they think the seat belt contributed to the shoulder injury?
  • Will they discount the severity of the shoulder damage?
  • Will they disrespect the soft tissue injury?

What Should You Do?

In any car accident, even if you don’t feel any pain at the scene, the first thing to do is to seek medical treatment.  Shoulder injuries are sometimes not obvious. They can take days, or even weeks, to manifest themselves.

Additionally, a good piece of advice if you have suffered a car accident related shoulder injury, is to speak with an experienced Florida personal injury lawyer to learn about your rights, including learning how most insurance companies respond to shoulder injury claims and the type and amount of damages you may be entitled to recover. Most personal injury lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

Read: Florida Personal Injury Lawsuit Risks

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Do you have questions or comments? Then please feel free to send Alan an email or call him now at (954) 458-8655.

If you found this information helpful, please share this article and bookmark it for your future reference.

What do you have to prove to get compensation in a Florida dog bite lawsuit?

Posted By on February 7, 2017


In this video, Alan Sackrin answers a question that he has been asked many times before by clients and visitors to this site. If you have questions after watching the video, Alan is available to talk with you now and answer your questions free of charge:

Q: What do you have to prove to get compensation in a Florida dog bite lawsuit?

A: In order to obtain compensation in a Florida Dog Bite Lawsuit, you must prove whose dog bit you or injured you. Sometimes that’s more difficult than one thinks. You must prove that you were injured by a dog, and that you did not instigate the dog or tease the dog, and cause the dog to come and attack you. Most situations in Florida there is strict liability on the part of a dog owner, and a dog owner is responsible for injuries caused by their dog in almost every instance. You also of course, must prove that you were injured as a result of the dog bite, or the aggressive actions of a dog. Many times a significant and serious bites and scars that result from dog injuries and many times if a dog chases after you causing you to injure yourself, you’re able to obtain compensation for whatever injuries that resulted from either a dog bite or from the aggressive actions of a dog.

Related:

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Do you have questions or comments? Then please feel free to send Alan an email or call him now at (954) 458-8655.

 

 

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Florida Personal Injury Lawsuit Risks

Posted By on January 26, 2017

In Florida, we have specific laws in place that address injuries caused by civil wrongs that include: 1) the failure to use reasonable care (negligence), 2) providing an unsafe or defective condition on property (premises liability) and 3) spoken or written words that harm a person’s reputation (defamation).

These personal injury laws are written to make victims whole when they are injured in a car accident or slip and fall by providing compensation for medical expenses, pain and suffering, lost earning capacity and the loss of the enjoyment of life.

The good news is that most personal injury claims settle out of court because of the certainty provided by these laws.  However, there are instances where victims are left to file a lawsuit to obtain justice for their injuries, which can take months or even years before a fair resolution may be achieved.  Unfortunately, time isn’t the only risk a victim may face when dealing with a personal injury lawsuit.

 

Ft. Lauderdale, FL, Courthouse, Broward County, 11-21-2010 (10)

Photo Credit: By Georgia Guercio (Own work)

 

Risks of Filing a Personal Injury Lawsuit

Often, accident victims are unaware of the time, expense and risks associated with filing a personal injury lawsuit, or any type of lawsuit for that matter. For example, even if a victim prevails at trial, the amount of money he or she may recover may not be enough to cover the expenses of hiring experts, paying a lawyer, and paying medical providers.

In fact, there are many risks associated with personal injury lawsuits including:

1. Motion to Dismiss

After a victim has had their life turned upside down, a defendant can make a request for the presiding judge to review the lawsuit and dismiss it without it being submitted to a jury for their consideration.  Dismissing a case means that the judge has signed an order ending the lawsuit (it can be done for substantive reasons, like the plaintiff failed to state a claim or provide sufficient facts to warrant a lawsuit, and/or technical reasons, like the defendant wasn’t properly served with the lawsuit).

Fortunately, in some instances, the lawsuit can be refiled (if the lawsuit was “dismissed without prejudice”).  In other instances, the lawsuit may be blocked from ever being filed again (that happens when the lawsuit is dismissed with prejudice).

In order to avoid or prevail against a motion to dismiss, experienced personal injury lawyers will make sure to investigate and properly address issues such as:

a.  Jurisdiction

Does the court have the power to hear the lawsuit? Does the judge have authority over the people involved in the case and/or the power to address the subject matter of the lawsuit? Should the injury lawsuit be filed in state court or federal court?  In Florida, some personal injury claims may even be a tribal matter.  For instance, some slip and falls at the Hard Rock Café and Casino must be heard under tribal law.

b.  Venue

Lawsuits must be filed in the proper county.  If a victim is hurt in Miami, can the lawsuit be filed in Broward County, simply because it is more convenient for the victim?  The likely answer is no.

c.  Parties

Often, accident victims have to difficulty determining the correct party to sue.  For example, if a victim slips and falls and breaks their arm at a shopping mall, then they would need to sue those responsible for that accident.

In this case, the victim may want to consider suing the owner of the mall, as well as the owner of the store, and even the operator of the cleaning company contracted to keep the floors clean.  If a defendant can show they are not a responsible party, then the judge can dismiss the lawsuit until the victim is able to identify and serve the proper party.

2. Motion for Summary Judgment

After filing a lawsuit, the defendant normally responds by filing a formal “answer” to the complaint. Thereafter, the discovery process begins, which is where each side requests documents and information from each other and from other parties who may be helpful to the case.  For example, during discovery, the accident victim can request that a store turn over its incident records or surveillance video.  Also, a store manager can be deposed by the victim to get sworn testimony of things like what he or she saw and heard that day.

After some discovery has occurred, a defendant may then move or ask the court to enter a judgment in its favor, and end the lawsuit, because there are no issues in dispute or because the lawsuit was filed after the statute of limitations has passed.

Statute of Limitation

In Florida, personal injury cases have to be filed within a certain time frame.  The Florida Legislature has set these deadlines in specific statutes, called statutes of limitations.

According to Florida Statute 95.11, personal injury claims must be filed within 4 years from the date of an accident.

If a victim does not meet that deadline, then no matter how serious their injuries may be the lawsuit will not be permitted to continue. By law, the judge is required to grant a motion for summary judgment in favor of the defendant, thereby ending the lawsuit forever.

3. Costs of Litigation – Time and Money

Most personal injury claims in Florida do not go to trial.  Many of them don’t even reach the courthouse as a lawsuit.  The great majority of accident claims are settled between the parties in pretrial settlement negotiations.

For those cases that don’t settle, the victim is left to file a lawsuit to have a jury determine if compensation will be awarded. In order to win at trial, an victim will have to prove liability and damages, which can be time consuming and expensive to do.

Time

It can take time to gather what is needed to meet the accident victim’s burden of proving liability and damages. During the discovery process, the victim’s lawyer will send interrogatories (written questions served to a person requesting answers under oath), find and discuss the case with expert witnesses, send out requests for production (documents such as medical records to review), and submit to the defendant requests for admissions (for the purpose of having the adversary admit or deny statements given by the person serving the request.)  Preparing, sending and reviewing this information can take weeks or even months to complete.

In addition to discovery, litigation can be delayed due to the time it takes to set and attend hearings. For example, if a Plaintiff files a motion to compel a defendant to provide better answers to discovery, then that motion needs to be heard by the judge presiding over the lawsuit.

The Plaintiff will get a date and time for the hearing, but that happens only after coordinating a time and date that works for the adversarial party. This process of exchanging emails and phone calls to review calendars and find a date that suits both sides can be tedious. There is also the risk that the only available dates for a hearing are weeks, even months, in the future.

Money

A major expense in personal injury litigation are expert fees.  Written opinions from medical professionals may necessary to evaluate things like permanent bodily harm and lost earning capacity.  Doctors’ rates to support damage claims are expensive.  Sometimes, an accident reconstruction expert will need to give an opinion on what caused the car crash or slip and fall injury.  Engineers may charge an hourly fee to prepare and present their expert analysis of fault and liability.

Litigation costs can pile up quickly.  These include filing fees, deposition transcriptions, court reporter costs, photographic and video production and even copying costs.  The good news is that the victim’s personal injury lawyer will advance all of these costs and the victim will only be required to reimburse the lawyer if he or she is able to obtain a settlement or verdict against the defendant.

4. Proposals For Settlement and Paying The Defendant’s Attorney’s Fees

In Florida, there is the possibility that a plaintiff will not only lose the case, but also the court will order the victim to pay the legal fees incurred by the defendant or the defendant’s insurer.

If an accident victim has substantial assets, there could be a great risk in not accepting an offer of judgment served by the defendant. That is a large risk for an accident victim to consider when deciding between accepting a proposal for settlement from the defendant or going forward with the lawsuit and letting a jury decide the value of their claim.

Does this seem unfair?  It may be unfair but it is the law.

When the Florida legislature wrote the law on offers of judgment and demands for judgment, it did so on the basis of being in the public interest to promote settlements in order to ease the burden on our courts.  Under Florida Statute 768.79, the parties are usually required to pay the adversary’s attorney fees in a personal injury lawsuit if the following occurs:

  1. Defendant serves an offer of judgment (settlement offer in a very specific form);
  2. Plaintiff does not accept that offer within 30 days; and
  3. The result of this can be that the plaintiff does not receive a final result that is more than 75% of the offer.

If, for example, a plaintiff requests a $100,000 offer of settlement and they only award $50,000, then the defendant is entitled to have its attorney’s fees and costs incurred from the date of serving the offer of settlement deducted from the $50,000 award. The plaintiff may end up with a judgment against him/her, especially when the jury awards little to nothing and an offer of settlement was made by the defendant.

How does the defendant collect?  Just like any other bill collector. A judgment is entered by the judge and filed in the court house records, stating that the plaintiff owes the defendant a set amount which covers both costs and attorney fees incurred by the Defendant.

What if the defendant’s costs and fees total more than the judgment against the defendant?  Then the court will enter a judgment for the defendant in a net amount (total court costs and legal fees less amount of the judgment against the defendant).

What if the defendant has insurance that provides a legal defense? The plaintiff will still have to cover any judgment even if the defendant has an insurance policy that covers legal expenses. The insurer for the Defendant is entitled to recover its attorney’s fees and costs incurred from the date of serving an offer of judgment to the Plaintiff.

5. Damages Capped by State Law

Here in Florida, the legislature has passed statutes that “cap” damages in some kinds of personal injury cases.  This has been done in the public interest as decided by the lawmakers.

Damage Caps set a specific amount that is the maximum the accident victim is allowed to receive in their personal injury claim.  That’s all the victim will be able to recover from the defendant, doesn’t matter how serious he or she has been hurt.

Non-Economic Damages

Usually, Florida Damage Caps apply to “non-economic damages.”  We’ve discussed non-economic damages before.  Economic damages are those things you can easily document, like medical bills and lost wages.  Non-economic damages are fluid; non-monetary losses.  They aren’t as easy to prove.  Pain and suffering damages are an example of “non-economic damages.”

Punitive Damages

Punitive damages are another kind of damage that is capped (limited) for Florida personal injury claims.  If a victim is hurt in a car crash or a slip and fall due to a wrongdoer’s reckless and wanton behavior, then a victim may feel that those responsible should be punished beyond making the victim whole.

That is the purpose of punitive damages: to punish the wrongdoer, independently of the amount of damages proven to be suffered by their victim.  See our earlier discussion on punitive damages for details.

However, punitive damages are limited (capped) in Florida personal injury cases.  Under Florida Statute 768.73, punitive damages can be no higher than 3 times the amount of compensatory damages or $500,000.00, whichever is greater.

Medical Malpractice

Medical malpractice claims have additional Damage Caps under the Florida statutes.  See Florida Statute 766. 118.  These are special limitations placed upon negligence claims against health care providers.  They limit recoveries even more than the standard damage caps for personal injury claims.

What Should You Do?

Personal injury lawsuits, like most lawsuits, comes with risks. Risks related to time, money and, in some instance, a victim’s well being.

If you have suffered serious damages in an accident here in Florida, and are considering settling your case or are assessing the risks of filing a lawsuit, then a good piece of advice is to speak with an experienced Florida personal injury lawyer to learn more about some of these issues, including how most insurance companies normally respond to personal injury claims claims and the type and amount of damages you may be entitled to recover. Most personal injury lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

Related:

_______________

Do you have questions or comments? Then please feel free to send Alan an email or call him now at (954) 458-8655.
 
 
 
 
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Can I prove injuries if I didn’t feel any pain at the time of the car accident ?

Posted By on January 24, 2017

In this video, Alan Sackrin answers a question that he has been asked many times before by clients and visitors to this site. If you have questions after watching the video, Alan is available to talk with you now and answer your questions free of charge:

Q: Can I prove injuries if I didn’t feel any pain at the time of the car accident?

A: If you did not feel pain at the time of the car crash, or shortly thereafter, you still can prove that you have sustained injuries, and sometimes significant injuries, as a result of that crash. Many people, at the time of a motor vehicle collision, are hurt but don’t realize it because there’s adrenaline flowing. Many people legitimately are not hurt at the time of an accident but the injuries are felt hours or even days later; that is not an uncommon occurrence.

However, in Florida car crashes, it is important for a plaintiff to prove that he or she has sustained a permanent injury from a car crash in order to recover money for pain and suffering. Sometimes, in those situations, it may be difficult for a jury to believe that a permanent injury was sustained when there was no injury claimed at the time of the accident. However, it still can be proved through your doctor’s testimony, through your testimony, and the testimony of people close to you.

Related:

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Do you have questions or comments? Then please feel free to send Alan an email or call him now at (954) 458-8655.

 

 

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Do I have to reimburse my personal health insurance company for medical expenses from my personal injury case?

Posted By on January 17, 2017

In this video, Alan Sackrin answers a question that he has been asked many times before by clients and visitors to this site. If you have questions after watching the video, Alan is available to talk with you now and answer your questions free of charge:

Q: Do I have to reimburse my personal health insurance company for medical expenses from my personal injury case?

A: If you have personal health insurance that has paid some of your medical bills resulting from a Florida personal injury case, you must reimburse that health insurance company some of the medical bills in most instances. That’s because of a concept known as subrogation. Since the health insurance has paid for medical bills that you are claiming resulted from the negligence of somebody else in a personal injury lawsuit in Florida, equity and fairness requires that at least some of those medical bills be returned to the health insurance company. Now it all depends upon the amount you recover and how difficult the case was. The health insurance company will negotiate with you and sometimes take pennies on the dollar.

Related:

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Do you have questions or comments? Then please feel free to send Alan an email or call him now at (954) 458-8655.

 

 

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Why Does It Matter If Someone Wasn’t Acting Reasonably At The Time Of An Accident?

Posted By on January 12, 2017

In Florida, we all know that an accident victim has the right to pursue money damages against a negligent wrongdoer (aka the “tortfeasor”). That, of course, assumes the victim’s injuries were caused by the tortfeasor’s action (or inaction).

The law in Florida, like most states, is that a tortfeasor is held to account for his or her failure to act reasonably.  Failing to act reasonably (or acting negligently) is the backbone of most personal injury law.  How does this work? To prove negligence and recover damages after an accident, a victim must prove the tortfeasor did not consider the harm they might foreseeably cause another person.

What is Negligence?

Negligence is a type of tort (a tort is a civil wrong where someone is injured). In Florida, our negligence law is made up of both statutes (laws written by our legislatures) and court opinions.

Additionally, under our negligence laws, tortfeasors can be held to compensate a victim for damages to the person as well as to their property.  Of course, not every loss related to a tortfeasor’s negligence can or will be recovered by the victim.

Watch: What are types of pain and suffering damages you can recover in a Florida slip and fall lawsuit?

Reasonable and Prudent Standard

Florida law places limitations on accident claims.  Meaning, before an accident victim can recover compensation, he or she will need to prove that the wrongdoer failed to act in a “reasonable” manner.

In Florida, every person is held to a “reasonable and prudent” standard.  So is every business. 

It is only when the tortfeasor fails to act reasonably that the tortfeasor can be found negligent under the law.

This means when you drive your car, you are expected to drive as a “reasonable and prudent” driver would under the circumstances.  If you are a grocery store, then you are to keep your store aisles clean and free from spills as any “reasonable and prudent”  grocer would do.

Doctors, are held to the same standard.  When a surgeon performs surgery, he or she is expected to act in the same manner as a “reasonable and prudent” member of the surgical profession in the community would do so.

The Florida Supreme Court explains it this way:

Negligence is the failure to use reasonable care, which is the care that a reasonably careful person would use under like circumstances.  Negligence is doing something that a reasonably careful person would not do under like circumstances or failing to do something that a reasonably careful person would do under like circumstances.

Florida Supreme Court Form Jury Instruction, Negligence, 401.4.

 

Scale of justice gold
 

Accident Claims and Reasonableness

Let’s consider two big areas of negligence law and damage claims:  car accidents and slip and falls.

In both of these injury claims, there will be an injured person, and there will be a negligent party.  Maybe this is another driver.  Maybe this is a business owner or operator, like a restaurant, a supermarket, or a hotel.

For both of these accident claims, the burden of proof is on the victim. The victim must show someone was negligent and the negligence caused their injuries.

A victim does this by providing authentic and admissible evidence of negligence.  In a personal injury lawsuit, these requirements must be met in order for the jury to consider their claim.

The key elements to prove of each of these types of negligence claims are: (1) a legal duty of care was owed to the victim; (2) that duty of care was breached; this (3) caused the accident; and (4) damages resulted from the accident.

The duty of care is the first element that the accident victim after a car crash or slip and fall injury must establish.  What is that “duty of care”?  The answer is to act in a reasonable and prudent manner under the circumstances.

Negligence exists when the other driver (or the store or hotel, etc.) failed to act reasonably in the circumstances and someone was hurt because of it.

Here are some examples:

Car Accidents

After a car accident, a victim will file a claim for damages with the at-fault driver’s insurance company.  If the at-fault driver failed to drive as a reasonable driver would have under the circumstances, then he or she should be deemed negligent.  Here are 4 types of common car accident claims:

1. Loss of Control Car Accident

It’s not easy to define a “loss of control” car accident, because these kinds of crashes involve all sorts of circumstances.  For instance, someone who jackknifes on the highway and causes an accident is responsible for a loss of control car accident.  Depending on the facts, a rear-end accident may also be classified as a loss of control accident.

The key here is that the other driver was not able to control his or her vehicle.  And, the key to his or her liability will be if he or she was not acting as a reasonable and prudent driver would act under the circumstances.

For more factors to consider in a loss of control accident, see our post, How Do You Know If A Driver Acted Reasonably In Trying To Prevent a Loss of Control Car Accident?

2. Rear End Car Accident

Rear end crashes happen all the time here in Florida.  They happen for several reasons.  Maybe the at-fault driver was distracted.   This might be from road noise, or from his own activity like texting on their phone; eating in the car; or checking the GPS.

Often, rear end car accidents happen when the driver in the front car gets scared because of a road hazard.  Maybe an animal darts into the road ahead.  Maybe a basketball bounces into traffic, and the driver is afraid a child will run out into traffic.

Also, a driver may suddenly decide to take a right hand turn, right into the path of another vehicle that has the right of way.  Or, maybe the front car slams on its brakes for whatever reason.

The key here will be if the driver was acting reasonably at the time of the accident.  Was it reasonable to be distracted by their phone?  Probably not.  Was it reasonable to brake because of a basketball bouncing into the car’s path?  Maybe so.

For more factors to consider in a rear end car accident, see our post How Do You Know If A Driver Acted Reasonably In Trying To Avoid A Rear End Car Accident?

3. Backing Car Accident

A backing crash happens when a driver puts his vehicle in reverse and hits the gas pedal.  He or she drives into or over someone who is not in a car.  The victim may be walking, or on a bicycle.  Backovers can happen on public or on private property, like a restaurant parking lot. Often, children are the victims of these kinds of accidents.

Was the backing driver reasonable or was she negligent?  Each case is different.  For more factors to consider in a backing car accident, see our post discussing Backing Car Accidents in Florida.

4. Pedestrian Accident

Pedestrian accidents happen when a driver hits someone on foot with his or her moving vehicle.   Insurance companies usually assume the driver is at fault in these kinds of cases.  However, this is not always true.

There are situations where the driver was driving defensively and will not be found negligent and liable for the accident.  For example, if a child suddenly darts out into traffic, then the driver may not have been able to avoid the accident.

Was the driver reasonable or negligent in your case?  Each case is different.  For more factors to consider in a pedestrian accident, see our post How Do You Know If A Driver Acted Reasonably In Trying To Prevent a Pedestrian Accident?

Slip and Falls

Slip and fall accidents happen in all kinds of places.  Anytime someone loses their footing and falls, that is considered a “slip and fall” accident.  It may be caused by a substance on the floor at a grocery store, or a napkin left on a restaurant floor, or the slip and fall is caused by soap scum in a hotel shower tub or shower.  One thing remains the same for all slip and fall accidents: Florida’s premises liability law will hold the owner or operator of the premises liable for the accident if their negligence caused the fall and the victim is injured as a result of the negligence.

1. Stairways

Falling down on a stairway often results in serious bodily injuries.  So much so, insurance companies have done research studies on stairway slip and falls to try and minimize these risks.  Stairs are required to have all sorts of safety features as a result:  things like handrails at a certain height.

Did the owner of the stairway act reasonably and take steps to prevent a slip and fall (was there adequate lighting or were slip resistant strips in use on the stairs)?  For more factors to consider in a stairway slip and fall accident, see our post discussing Stairway Slip and Fall Accidents.

2. Parking Lots

In Florida, owners of parking lots have two duties of care to their invitees:  (1) to maintain the premises in a reasonably safe condition and (2) to give warning of concealed perils.  Burton v. MDC PGA Plaza Corp., 78 So.3d 732, 734 (Fla. 4th DCA 2012).

Failure to warn of a crack in the asphalt footpath may be negligence, just as having failed to mop up standing water after a thunderstorm.

Again, did the owner of the parking lot take reasonable steps (were the wheel stops and speed bumps painted yellow or was proper warning signage in use) to prevent a slip and fall accident?  For additional factors to consider in a parking lot slip and fall accident, see our post discussing Parking Lot Slip and Fall Accidents.

3. Restrooms

Public restrooms need to be clean and well-maintained so they are safe for those invitees who have access to them.  If there is a slip and fall accident in a public restroom, then all sorts of failures on the part of the business owner may have contributed to the victim’s injuries (slippery floor, poor lighting, leaky roof, etc.).   The key here will be if the owner or operator of the public restroom acted reasonably in trying to keep the restroom safe for patrons.

Was the owner of the restroom reasonable?  Here are some factors to consider in a restroom slip and fall accident, discussed in our post “How Do You Know If A Business Acted Reasonably In Trying To Prevent a Restroom Slip and Fall Accident?

4. Stage or Elevation

Any kind of change in a footpath, like going up as you step forward, is considered a “stage” or “elevation” for accident claim purposes.  These are called “change in elevation slip and falls.” They can be caused by all sorts of things, like raised seating areas, platforms, piers, mezzanines, or curbs.

Did the owner of the stage or elevation act reasonably in trying to prevent an accident from occurring? What steps did he or she take to protect against foreseeable injuries?  For factors to consider in a stage or elevation slip and fall accident, see our post Stage or Elevation Slip and Falls in Florida.

5. Walkway or Hallway

Accidents where someone falls and is hurt in a walkway or hallway can happen in a wide variety of locations and businesses.  After all, there are walkways and hallways in most business establishments.

For a successful negligence claim, the accident victim must show a failure to maintain reasonable care of the area, causing the slip and fall (like not treating a tile or marble floor, or another slippery surface, with a slip resistance film or not mopping or waxing the floor regularly).

Was the owner of the walkway or hallway reasonable?  For factors to consider in a walkway slip and fall accident, see our discussion on Walkway or Hallway Slip and Fall Accidents.

6. Entryway

A business owner or operator owes a duty of care to its invitees from the minute they cross the property line.  If someone slips and falls in a business entryway, then that owner will be liable for that accident if they were negligent in taking care of that entryway (like not having slip resistant mats when it is raining outside or failing to replace old or damaged mats or mats that are curling).

Entryways must be both inviting and safe.  Was the owner of the entryway reasonable in taking care of the area when you slipped and fell?

For factors to consider in an entryway slip and fall accident, see our post discussing 30 Questions to Ask After an Entryway Slip and Fall.

7. Office

When you are injured in an office, the business owner or operator may be held liable for the accident.  However, if you are an invitee the law will be applied differently than if you are an employee.  In Florida, if you are injured in an office slip and fall accident, then you may have coverage with your employer’s workers’ compensation coverage.

However, in both situations the question of negligence will be the same. Was the owner of the office reasonable (like safely positioning trash cans or boxes out of foot path traffic or in a spot where someone won’t trip over them) in trying to prevent this kind of accident in the office?  For other factors to consider in an office slip and fall accident, see our post discussing Office Slip and Fall Accidents.

Do You Have an Accident Damages Claim?

If you have been hurt in a slip and fall accident,  or in a car crash, then the key to your accident claim is whether or not a duty of care was violated.  If the person (or business) who caused the accident failed to act reasonably, then they can be held liable for your damages. Damages can include medical bills, lost wages, pain and suffering  and more.

If you or a loved one has suffered harm due to the negligence of another person or business, a good piece of advice is to speak with an experienced Florida personal injury lawyer to learn about some of the issues that can arise, including how most insurance companies respond to these claims and the type and amount of damages you can recover. Most personal injury lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

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Do you have questions or comments? Then please feel free to send Alan an email or call him now at (954) 458-8655.
 
 
 
 
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