Getting Evidence from Third Party Sources: Proving Your Florida Accident Claim

Posted By on September 21, 2017

Whether you decide to negotiate your accident claim for yourself or to hire a personal injury attorney to help you with your accident case, you will need to gather and organize the documentation needed to prosecute your case.  A well-documented claim is going to get more respect from an insurance adjuster or defense lawyer – and may result in a higher settlement for you.

We’ve discussed how documents and conversations become evidence in past posts.  There is also our free e-book with tips for filing a Florida accident claim without hiring a lawyer.  (Get it over there in the right sidebar.)

Here, we cover some of the practicalities and steps you have to take to get that evidence, so you have it ready either for your settlement conference or meeting with your lawyer.

 

(Physician examining a patient at bedside) (4645106158)

Doctor’s narrations are part of medical records protected by HIPPA.

 

Your Accident File and Chronologies: Organizing Your Claim

You need something to keep everything that concerns your claim. Whether it be for a car accident or a slip and fall in Florida, the paperwork can be surprisingly voluminous.  It is advised that you create a filing system for your accident file with all your claim documentation.

1. Filing System

The exact filing system that you choose to use depends upon your preference.  Using a series of manila folders in a Banker’s Box is one method, with each folder for a different evidence source.  Another method is using an accordion file or paper portfolio.

Whatever you choose, this is the place where you will not only keep (1) evidence of your claim but also (2) information about the source of that evidence (like the name of the person you spoke with about getting that police report, etc.).

2. Chronology Lists

Keeping a list of documents as you receive them is a good idea in order to obtain quick and easy access to the information you need.  This is called a “chronology.”  Often, several chronologies are helpful: one for the medical records and one for the medical bills, for instance.  (See more, below.)

3. Lawyer’s File

If you hire an accident attorney, he or she will investigate and gather documentation (like depositions, interrogatories, photographs, video surveillance, etc.) and evidence as part of his/her preparation for representing you as your advocate.  How much documentation you will gather for the lawyer will depend upon your particular circumstance.

You will still have documentation related to your case even if you have legal representation, and preparing an accident file for your personal accident records is wise, even if you have delegated the job of collecting evidence to your lawyer.

Medical Bills, Medical Records and HIPPA

After an accident, you’ll be getting all kinds of medical bills.  The EMS company may have an invoice out to you within days of the accident!  It’s important that you keep all these medical bills, even if you have several copies from the same health care provider.

It’s also a good idea to keep a chronological list of each medical bill as it comes in, too.  This is a chart that gives the date, the amount, the provider, and the service provided.  You create this for your files and update it as new medical bills arrive.  This tally can be used to help prove up your damages.

Medical Records vs Medical Bills

Each health care provider you were seen by will have records of what services were provided to you and what products were used for or by you as a part of your care and treatment.

Medical records can include ambulance, hospital, surgeon, therapists, your primary care physician and more.  Any document pertaining to your medical treatment is a medical record, and is evidence supporting your accident claim. 

Medical records include lab tests, drug prescriptions, wheelchair or bed rentals, hospital charts, doctors’ narratives, nurses’ notes, and any exams that were done during treatment (MRIs, EKGs, etc.).

These records and bills can be helpful in proving your damages in a car accident or slip and fall. They can be used to show that you experienced pain and suffering, disfigurement, emotional distress, and even support a lost wages claim (more on that below) as a result of the accident.

Read: Economic v. Non-Economic Personal Injury Damages

HIPPA Privacy Requirements

To get the medical records themselves, you will have to request them in a manner that meets the privacy guidelines of HIPPA (the Health Insurance Portability and Accountability Act of 1996).  HIPPA places federal guidelines and requirements for requesting confidential information, and protects the patient’s privacy.  In other words, if the information is considered “protected health information” (PHA) under HIPPA, then it cannot be released until the HIPPA guidelines are met.

Most hospital facilities have record systems in place for requests that meet HIPPA standards.

For instance, the University of Miami Hospital system has an online web page that gives specific information on how to make a medical records request from its administration.  There is also contact information given for its Office of HIPAA Privacy and Security.

The Miami Medical Center also provides online information on how to request medical records in a manner that complies with HIPPA.  This includes an online pdf form that you can download for use in requesting your medical records from the MMC (their “HIPAA-compliant release form”).

Each health care provider must meet the privacy protections of HIPPA, as long as they have “protected health information” pertaining to your care and treatment.

You may need to check with pharmacies, doctors’ offices, chiropractors, therapists, and more on their individual protocols on releasing medical records under HIPPA. Special steps have to be taken pursuant to federal law in order for health care providers to release your “protected health information” to you.

Police Reports

Police reports are a key part of any Florida car accident claim.  They are usually ready for review within a few days of the incident, having been prepared and filed by the officer(s) at the scene of the accident.

Rest assured, law enforcement agencies will be organized and ready for your request.  They usually have employees who are specifically tasked with the job of responding to requests for police reports.

Call the police department or county sheriff’s office that investigated your accident and ask them about their procedure for obtaining a police report.

For instance, the Fort Lauderdale Police Department has an online web page that provides its contact information and how to request your accident report.  Their Records Unit is located at 1300 West Broward Boulevard, Fort Lauderdale, FL 33312, and can be reached at 954-828-5465.

Florida Statutory Requirements: Affidavit for Traffic Accidents

Police reports can be made for all sorts of accidents.  It’s wise to call the police to a serious slip and fall accident, for instance (the EMS call may bring the police as well).

For motor vehicle accidents, you will have to do more for a police report than for other kinds of accidents.

Certain agencies set specific guidelines and requirements for obtaining a crash report for your car accident claim. Pursuant to Florida Statute 316.066, an affidavit is required if you ask for an accident report involving an auto accident or car crash.

The law requires your affidavit if you ask for the report within 60 days after the accident happened (After 60 days, the affidavit is no longer required). The affidavit must give details explaining why you are entitled to that police accident report.

Law enforcement agencies typically have an affidavit form on file for your convenience.  Below are some links to downloadable affidavit forms for three major South Florida police agencies:

You can mail your request to the police with your Florida Statute 316.066 affidavit if you do not want to visit their offices.

Read: Florida Car Accident Compensation Law

Lost Wages and Wage / Salary Verification

A victim’s employer will have to be involved in seeking compensation after they have been hurt.  To prove lost wages, a victim needs third party verification from their employer detailing their wages (if the victim is self-employed, then tax returns may be needed).

A victim must obtain verification of (1) how much money they were making at your job before the accident, as well as (2) any lost wages they have suffered as a result of the accident and (3) any future lost earnings that they will be facing during their recovery from the accident.

The exact documentation will depend upon the victim’s employer.  If the victim is a salaried employee, then pay stubs may be a good starting point.

However, if the victim works on commission, as a real estate agent for example, then past history of commission earnings may be needed to verified by going back a significant period of time.  Here, the real estate brokerage company will need to provide a commissions history going back 2 years.

Note: Although the above information can sometimes be found through pay stubs, it is not the best evidence. An employer should provide supporting documentation on company letterhead.  Also, at the very least, an affidavit from an employer will likely be needed to support any projections of future lost earnings or lost earning capacity.

Documentation from an employer about wages should include the following minimum information:

  • job title or position
  • your rate of pay
  • how many hours you typically work per week, including overtime
  • how many days of work you missed
  • how many days of vacation and sick days you used
  • total amount of wages you lost
  • expected lost future wages based upon doctor’s estimated date for you to be able to return to work.

Read more: Lost Wage Claims In Florida: What You Need To Know

What Should You Do?

After an accident, victims have a lot to face: recovering from their injuries, dealing with financial concerns, coping with anxiety and depression and pain.  Having to coordinate and organize the gathering of supporting documentation for their accident claim is doable but it can be overwhelmingly stressful, too.

An experienced Florida accident lawyer can be so helpful here.  With a knowledgeable support staff and an organizational system in place, the attorney can assist in gathering evidence from third party sources for the accident victim in many ways.

While the victim may need to be involved and their input is welcomed and encouraged, having a legal team handling all these details is often a great relief to the recovering accident victim and their family.

Our offices offer a free initial consultation.  Please feel free to give us a call.

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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.

Your Medications May Cause a Slip and Fall

Posted By on September 7, 2017

AgingCare.com

Falls are the leading cause of both fatal and nonfatal injuries in adults 65 and older. As we age, simple tasks become more and more difficult. Your body may need medication to help you get through the day.

However, it is important to be mindful of the side effects of the prescriptions you are taking. This is because adults who take five or more medications at a time are at highest risk of falling.

Taking multiple drugs can cause serious health issues. Fortunately, there are ways you can prevent serious fall injuries by paying attention to possible side affects you may be experiencing. If you are experiencing any of the following, you should contact your medical provider immediately.

  • Tiredness, sleepiness or decreased alertness
  • Constipation, diarrhea or incontinence
  • Loss of appetite
  • Confusion, either continuous or episodic
  • Falls
  • Depression or general lack of interest
  • Weakness
  • Tremors
  • Hallucinations, such as seeing or hearing things
  • Anxiety or excitability
  • Dizziness
  • Decreased sexual behavior
  • Skin rashes

Read more


Related:

Banana peel

6 Balance Exercises To Prevent A Slip and Fall

Grocery Store Slip and Falls

A Guide To Slip/Trip and Falls in Florida

6 Strength Exercises to Prevent A Fall

Posted By on August 31, 2017

Go4Life.nia.nih.gov

As we age, our muscles grow weaker without proper exercise. Everyday tasks such as grocery shopping, climbing stairs, getting up from a chair, or even playing with your grand kids becomes more difficult, and your risk of falling and sustaining a serious personal injury grows with each passing day.

Even if you aren’t used to exercising, or your physical endurance isn’t the best, it is important to keep in mind that every little bit counts when it comes to strengthening your muscles. Don’t be afraid to start small and work your way up, as long as you are moving forward with your exercises.

Below are six lower body exercises that can help build muscle strength and improve your ability to prevent injury when completing ever day tasks:

  1. Back Leg Raise- strengthens your buttocks and lower back.
  2. Side Leg Raise- strengthens hips, thighs, and buttocks.
  3. Knee Curl- strengthens thighs and buttocks.
  4. Leg Strengthening- strengthens your thighs and may reduce symptoms of arthritis of the knee.
  5. Chair Stand- strengthens your abdomen and thighs.
  6. Toe Stand- strengthens your calves and ankles.

For details on each of these exercises, read more here.


Related:

Banana peel

Winning Your Slip and Fall Against Walmart

A Guide To Slip/Trip and Falls in Florida

Grocery Store Slip and Falls

Pedestrian Accidents in Florida: Deadliest in the Nation

Posted By on August 24, 2017

The unfortunate truth is that pedestrians are seriously injured or killed in pedestrian accidents every day in Florida.  So much so, that Florida ranked first in the nation for Pedestrian Accidents in a 2016 research study.

In its annual Dangerous by Design report, the advocacy group National Complete Streets Coalition -SmartGrowthAmerica studied accident reports from across the country, focusing not only on states but also on metropolitan areas.

 

Roundabouts are being built in Florida to help prevent pedestrian accidents.

 

Nine Florida Metro Areas Rank in Top 15 Most Pedestrian Accidents

According to this study, Florida is the most dangerous state for walkers.  As for pedestrians, the following nine metro areas are among the Top 15 Most Dangerous Metro Areas for Pedestrians:

No. 1     Cape Coral-Fort Myers, FL          

No. 2     Palm Bay-Melbourne-Titusville, FL        

No. 3     Orlando-Kissimmee-Sanford, FL              

No. 4     Jacksonville, FL

No. 5     Deltona-Daytona Beach-Ormond Beach, FL        

No. 6     Lakeland-Winter Haven, FL       

No. 7     Tampa-St. Petersburg-Clearwater, FL    

No. 8     Jackson, MS

No. 9     Memphis, TN-MS-AR

No. 10   North Port-Sarasota-Bradenton, FL        

No. 11   Miami-Fort Lauderdale-West Palm Beach, FL

No. 12   Bakersfield, CA

No. 13   Birmingham-Hoover, AL

No. 14   Little Rock-North Little Rock-Conway, AR

No. 15   Houston-The Woodlands-Sugar Land, TX.

Furthermore, according to a review by the U.S. Department of Transportation of literature about vehicle travel speeds and pedestrian speeds, which contained data compiled from State of Florida,  pedestrian deaths increase significantly when they are hit by a car going 40+ mph.  Survival rates increase to over 90% chance of survival if the car is moving at 20 mph or less.

Are Pedestrian Accidents Common For People of All Ages?

The Dangerous By Design report confirms there is a very high risk of being hurt in a motor vehicle accident while walking here in Florida.  It’s a danger that faces pedestrians of all ages although the data shows that people of color and older adults are disproportionately represented among pedestrian deaths compared to their representation in the population.

For experienced personal injury attorneys, this isn’t news.  Sadly, representing pedestrians who have been seriously injured in an accident has become commonplace.

For details about the type of damages a pedestrian can recover in this type of car accident, read one of our previous articles, “Pedestrian Accidents in Florida.”

“It’s the Pedestrian’s Fault!”

Pedestrian car accident victims, just like any other injury victim, bear the burden of proving their case with admissible evidence. Meaning, they must show that the driver was negligent and that negligence is what caused the accident.

For pedestrians, this can be especially difficult because all too often the driver points the finger at the person on foot as the cause of the accident.

Even the police officer on the scene of the accident may have a bias against the pedestrian in this type of car accident.  Rarely do the police charge the driver in a pedestrian accident with any kind of misdemeanor (much less a felony).

The bias against pedestrians is most obvious when dealing with automobile insurance companies because insurance adjusters, as well as insurance defense lawyers, quite often deny these claims based upon the pedestrian being the cause of the accident for failing to yield the right of way or failing to cross at a crosswalk.

Government Attitude to Pedestrian Accidents Is Changing

Fortunately, this prejudice against the pedestrian in Florida pedestrian accidents is changing.  Agencies and officials with growing concern over the high number of pedestrian accidents here are taking the time to learn what is happening and how to reduce the danger.

The powers that be are realizing that Florida roads and traffic patterns have not been designed for walking pedestrians.  See the article written by Douglas C. Lyons in the Sun Sentinel for details: “Cultural shift key to liberating South Florida pedestrians.

The reality is that motorists are driving too fast; they are driving without regard for those with whom they share the road; and everyone is moving along routes that have ignored the safety of pedestrians in their design.

Changes to Make Florida Safer for Pedestrians

Accordingly, the following changes are being discussed and some are being implemented in Florida to address the high risk of pedestrian accidents.  Each of these proposals offers a partial solution to the current epidemic of pedestrian accidents and may help to alleviate the overall bias against the pedestrian. 

These ideas and proposals may also help the pedestrian demonstrate how fault for their accident lies with the driver or the design of the street or the traffic pattern. 

1.  Lowering Speed Limits on State Roads

The Florida Department of Transportation has a pilot program underway in Tampa Bay to test if lowering speed limits will impact the number of pedestrian accidents.  It’s part of an overall program called the Complete Streets Initiative.

How does it work?  FDOT lowers the speed limit on state roads currently at 40-45 mph to much lower speeds.  Some will be as slow as 25 mph.

Hopefully, this will not only allow the driver to be more aware of pedestrians sharing the roadway with him or her but if there is a pedestrian accident, the victim will have an increased chance of survival.

2.  Installing Roundabouts

The Florida Department of Transportation is building roundabouts in Florida, beginning with three traffic roundabouts on U.S. Highway 27 in Leesburg.

Roundabouts replace the typical intersection, eliminating the need for traffic signals and stop signs and they minimize the chances of a pedestrian being hit by motor vehicles because they slow down traffic at intersections.

In fact, FDOT statistics show that roundabouts have 90% percent fewer accident fatalities and 75% fewer injuries.  Pedestrian accidents are lowered by 10 to 40 percent.

Additionally, drivers running red lights are a big cause of pedestrian accidents.  Roundabouts should help prevent these kinds of accidents because drivers have to yield before entering an intersection containing a roundabout.

3.  Cities Are Redesigning Dangerous Roads

Florida cities are considering redesigning roadways that have a high pattern or history of pedestrian accidents.  In Tampa, for example, authorities are considering a redesign of two miles along Fowler Avenue, which routes near the University of South Florida campus.

It is considered one of the most dangerous roads in the county, and it routes through an area with a growing population.  The redesign will provide things like sidewalks and walkways along this stretch of road.

This plan is part of the Tampa Innovation Alliance, working with the FDOT Complete Streets Initiative.

Some roads are simply not designed with pedestrians in mind.  They fail to have sidewalks, or they have barriers in place that prevent drivers from having a clear view of people walking or jogging alongside the traffic path.  Redesigning these roads will help to lessen pedestrian accidents. 

4.  Fort Lauderdale Joins Vision Zero

In 2015, Fort Lauderdale was the first city in Florida to join with Vision Zero. The goal of this global initiative is to work toward a Zero Percentage of Road Deaths by the year 2035. Broward County is one of the city’s partners.

This is a sweeping project involving a five-fold approach: education, engineering, evaluation, encouragement, and enforcement.  Included in the plans for preventing pedestrian accidents are more availability of sidewalks and revamping the management and flow of traffic and traffic congestion.

It is a worthy goal for Broward County to have zero traffic fatalities and to consider all motor vehicle accidents as preventable crashes.  As noted above, this attitude may help change the bias against pedestrians as being the cause of pedestrian car accidents.

5.  Changing the Landscape in Broward County

In Broward County, steps are being taken to protect pedestrians from being hit by cars in a basic way: they are changing the landscape of streets with things like wire mesh and palm trees.

By installing rows of palm trees surrounded by wire mesh, medians in some high danger areas are blocked from pedestrian traffic.  This prevents walkers from crossing larger streets and moves the pedestrian traffic to safer crossing zones.

People living in South Florida are well aware that some roadways are not built for pedestrians.  There can be several lanes of traffic with few intersections along the route to provide for crossing.  Pedestrians are tempted to cross via medians because they may have no other option.  Routing pedestrians to safer crossing spots will help alleviate these accidents.  So will recognition that landscaping is a factor in pedestrian accidents.

6.  Red Light Cameras in Broward and Miami-Dade

Right now, the Broward County cities of Davie, Sunrise, Tamarac, West Park, and 16 different cities in Miami-Dade County all have red light cameras installed on streets to catch drivers exceeding the speed limit.  Pembroke Pines and Boynton Beach are turning their red light cameras back on this year.

Red Light Cameras are controversial, but statistics from the Florida Department of Highway Safety and Motor Vehicles reveals that pedestrian accidents drop almost 20% for intersections that are monitored by a red light camera.

Bottom line: Fast moving vehicles cause a lot of pedestrian fatalities that lower speeds do not.  Speeding drivers are less likely to be aware of their surroundings to see people who are walking or jogging alongside the traffic path.  Red light cameras may discourage speeding drivers which in turn may save the lives of pedestrians in South Florida.

What Should You Do If You Are Involved in a Pedestrian Car Accident?

The outcome of a pedestrian accident claim is dependent upon its individual facts and circumstances.  No assumptions should be made regarding cause or who was at fault.

Because of the changing attitude towards pedestrian accidents, there are several essential questions that should be considered when evaluating the strength of a claim.  For instance:

  • Was the location of the car accident designated to have its speed limit lowered?  If so, speeding is likely a known problem which may have contributed to the accident;
  • Is a roundabout planned for the intersection? If so, then there may be a pattern of drivers running the intersection, speeding through it, or otherwise endangering pedestrians here and causing accidents;
  • Have the authorities or researchers studied this route and determined it to be dangerous?
  • Are red light cameras planned for this accident site, or have they been installed but turned off?  Then this location may be known as having a problem with drivers speeding through the intersection.

Having an experienced personal injury lawyer to help investigate and pursue a pedestrian accident is important, given the assumptions and bias that exist regarding these claims.  The police as well as the insurance adjusters will likely assume the pedestrian is to blame and caused the pedestrian accident.  Fault must be established with facts, not assumptions.

A good piece of advice if you have been injured in a pedestrian accident is to speak with an experienced personal injury lawyer to learn about some of the issues 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, whichever you prefer) to answer your questions.

For more information:

_______________

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 Are The Best Shoes To Prevent A Slip And Fall?

Posted By on August 10, 2017

MyAgingParent.com

Most of us don’t realize that footwear is one of the most common factors contributing to slip and falls including those in restaurants, grocery stores, condominiums and nursing homes. We may not be able to control the negligent acts of others, but wearing the right shoes could prevent a serious injury, and perhaps even a lengthy lawsuit to recover money to make us whole again.

Fortunately, it is never too late to educate yourself about what aspects make up shoes that are safe. Below are some points to be aware of when shopping for slip resistant shoes.

Common shoe conditions that cause a slip and fall:

  • Shoes that are too big
  • Backless slippers/sandals
  • Shoes with worn out soles
  • High heels/wedges

A safe shoe should consist of one or more of the following:

  • A ribbed, rubber, slip-resistant sole;
  • Raised back to support the ankle;
  • Velcro fastener; or
  • Strong laces to ensure a secure fit.

Read more…

 

Are You Being Sued By An Insurance Company For Money It Paid To The Party You Hurt Or Whose Car You Damaged?

Posted By on July 27, 2017

Subrogation lawsuits by insurance companies are a common occurrence in Florida car accident cases.

What is Subrogation?

Subrogation is when an insurance company seeks reimbursement from the party that caused a car accident for the money it has to pay to its insured for a claim.  The most common subrogation lawsuits relate to property damage claims (i.e. the cost to repair or replace a car) but they also include personal injury claims.

Sometimes, reimbursement can be sought from another insurance company (i.e.. the at-fault driver’s insurance company).  However, a lot of times, reimbursement is sought from the person determined to be the cause of the accident.  These are called “subrogation claims” or “subrogation lawsuits.”

In insurance industry terms, the accident victim’s insurance carrier will “subrogate” against the at-fault driver and/or his insurance companies to pay for the damage claims of their policyholder (the accident victim), called the “subragor.”

Car-accident

 

What Happens When A Subrogation Lawsuit Is Filed?

A subrogation lawsuit is filed just like any other lawsuit in the State of Florida. A complaint is usually filed in the county where the defendant resides and he or she is served with the lawsuit by a process server.  Once the defendant is served, he or she will need to file an answer within 20 days of being served or risk a “default judgment” being entered against him or her.

In the subrogation lawsuit, the plaintiff will be named as “Named Insurance Company a/s/o accident victim” versus “Other Driver”.  The complaint will explain that the insurance company plaintiff “became subrogated” to the rights of its insured against the defendant.

Which Insurance Companies Are Involved After a Motor Vehicle Accident in Florida?

In Florida, any number of insurance policies may provide financial assistance through insurance coverage after a car accident.

Personal Injury Protection (PIP) Insurance, which is mandatory under Florida law, covers you – regardless of fault (i.e. whether or not you cause the crash) – up to the limits of your policy (the minimum in Florida is $10,000.00).

There’s also Underinsured/Uninsured Motorist coverage (UM) which pays medical expenses, lost wages and related damages if a driver is in a car accident caused by a driver who does not have liability insurance.

The victim’s health insurance, through the victim’s employer or the victim’s own policy, may cover some of the medical expenses, including ambulance services, surgery and physical therapy.  If there is no health insurance policy, then Medicare or Medicaid may cover some of the medical expenses.

Property Damage and Bodily Injury Claims

There are two kinds of damage claims after a car accident.  After someone is in a crash, they may have to deal with physical injuries suffered in the accident as well as replacing or repairing their vehicle and other property that was impacted by the collision.  In a severe accident, for example, the accident victim may spend time in the hospital recovering from fractures or concussions while their SUV has been towed to a lot somewhere, undriveable.

Under an insurance contract, the two different types of claims are referred to as: (1) bodily injury claims and (2) property damage claims.

1. Property Damage

Bodily injury includes any kind of physical harm suffered in the crash, as well as emotional or psychological trauma that resulted from it.  Medical expenses, including any surgeries or physical therapy, are part of a bodily injury claim.  Pain and suffering is also considered part of a bodily injury claim, alongside lost wages, lost future earning capacity, etc.

2. Bodily Injury

Property damage after a motor vehicle accident involves the vehicle itself, of course, but also any of property that was harmed, as well.  Things like the victim’s iPad or laptop, their smartphone, and any other valuables (watch, jewelry, etc.) can add up to a significant property damage claim independent of any physical injuries you suffered.

The Subrogation Process

Because insurance companies know they will have to pay property damage claims and bodily injury compensation to their insured, the accident victim’s insurance companies have reserved certain rights in their policies.  An insurance policy is an agreement between the company and its insured or policy holder in which the parties agree that the carrier can proceed to seek reimbursement from the at-fault party for money it has to pay to its insured after a car accident.

In industry terms,  the  accident victim’s insurer is subrogated to the rights  contained in the insurance policy and can step into the policyholder’s shoes to try and get reimbursed either by settlement negotiations or by filing a lawsuit against the at-fault driver (and his insurance carrier).

1. Property Damage Subrogation

In most automobile accidents, the vehicle suffers some type of damage.  Sometimes, the insurance adjuster may determine that the car is “totalled.”  A totalled car is one where the cost to repair it is more than the cost to replace it.

The insurance company is obligated to cover this type of claim and pay the insured the agreed amount of coverage (replacement value or the fair market value of the car – check your policy).  If there were personal property items inside the vehicle at the time of the crash, they can be covered as well under the property damage provisions of the policy.

Thereafter, the insurance will ask its insured, to sign the necessary paperwork (“subrogation release”) so it can move forward on getting that payment reimbursed by those responsible for the accident.

Next, the innocent victim’s insurance company will demand, and if necessary file a lawsuit, against the at-fault driver for the money that it paid to get its policyholder’s car fixed or replaced, along with the repair or replacement of the damaged personal property.

Here is an example:

Let’s say a car crash occurred in Fort Lauderdale.  The innocent victim’s car is totaled by the other driver.  The victim’s insurance carrier covers the cost of the totaled vehicle under the terms of the policy under which premiums were paid.  It then requests that the victim sign documentation allowing it to pursue subrogation claims with the policyholder as “subragor.”

After the victim signs the paperwork, the insurance company seeks subrogation from the driver who was at fault in the accident.  If a lawsuit is filed, the insurance company will be named plaintiff, not the policyholder whose car was totaled.

2.  Bodily Injury Subrogation

Subrogation provisions in health insurance policies are more complex for bodily injury claims.  Just like property damage claims, they may allow the innocent victim’s carrier to go after the at-fault driver (and his insurance company) for reimbursement of the medical expenses and health care costs that were paid on behalf of the innocent victim.

However, they may also seek reimbursement against any other medical insurance policies that cover the innocent victim if those policies provide coverage for the accident injuries.

For example:

There is a car crash in Miami.  The accident victim has health insurance with his employer.  The victim is hurt in the crash and the medical bills total $20,000.00.  The company health insurance covers the full amount of $20,000.00 in medical expenses.

Then, the health insurance company seeks subrogation from the at-fault driver and his insurance carrier for the full $20,000 it has paid out in the victim’s medical expenses.

Uninsured Motorists and Subrogation Lawsuits

What if the driver has no insurance?  It is possible for an insurance company to file a subrogation lawsuit against the uninsured motorist.  However, these are often called “judgment proof drivers” because they likely do not have the funds to cover the reimbursement claim.

Aggressive insurance carriers may nevertheless file these uninsured motorist subrogation actions.  They may try and negotiate payment plans in settlement given the uninsured driver’s financial condition.

Defenses to Subrogation Lawsuits

Subrogation lawsuits can be hard fought, especially if it pits two insurance companies against each other.  Several defenses may be asserted:

 1. Contract Exclusion

One defense to a subrogation lawsuit is that the policy does not allow it. Contract law may determine that the carrier does not have a right to subrogate under the terms of the insurance policy.

 2. Sole or Contributing Cause

Another defense is the “subragor” was not innocent. Here, the insured accident victim is either the sole cause or contributing cause of the accident.  Thus, the insurance carrier either has no right to recovery or to recover an amount that is “diminished in proportion” to the percentage of cause attributed to their policyholder.

For more on fault, read: Does Fault Impact Damages in a Florida Car Crash?

 3. Failure to Mitigate

Failure to mitigate bodily injury damages is another subrogation defense. In this case, the argument is that the claims paid could have been lower if the innocent victim or the carrier had tried to keep the costs down.  Having admissible evidence of reasonable and necessary medical costs may be challenged as lacking in the subrogation claim.

For more on medical expenses, see: How Do I Pay My Medical Bills After a Florida Car Crash?

4. Failure to Prove Damages

Failure to provide proper evidence of the alleged property damages is another subrogation defense. Here, the argument is that the claims were paid, but the reimbursement claim fails to provide any reasonable basis for the “loss in value” asserted for the vehicle and its contents.

What Should You Do?

After a serious car accident, it’s difficult enough to recover from your injuries and the aftermath of being in the crash. So, being involved in a subrogation lawsuit is the last thing a car accident victim needs at a time like this.

Usually, these subrogation claims take place between the insurance companies and drivers are copied with correspondence and status updates as things progress.  However, subrogation lawsuits do get filed against individuals after there has been a motor vehicle accident here in Florida.

An experienced Florida personal injury lawyer can help you understand what subrogation involves in your circumstances, and what you can expect in any lawsuit that may be filed seeking reimbursement of paid claims by an insurance carrier after your accident.

A good piece of advice if you are being sued by an insurance company related to a car accident is to speak with an experienced personal injury lawyer to learn about some of the issues 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, whichever you prefer) to answer your questions.

For more on car accident damages and subrogation see:

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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 Sexual Assault and Rape Victim Claims Against Property Owners

Posted By on July 13, 2017

The statistics are shocking:  1 in 6 women in Florida have been raped at some time in their lives and almost half (42%) have been the victims of sexual assault other than rape. Additionally, 20% of men in Florida have been victims of sexual violence during their lifetimes.

Furthermore, people of all ages can be victims of sexual assault; from children to nursing home residents. Teenagers between the ages of 14 and 17 are at the greatest risk of being victimized and, sadly, men and women with disabilities are twice as likely to be victims of rape and sexual assault here in Florida than those without disabilities.

These victims can suffer serious bodily injury as well as significant psychological trauma as a result of rape or sexual assault.  For these victims, it is important to be aware of the issues and remedies under Florida’s personal injury law that may help them not only recover damages for the harm they have suffered but also for their future therapeutic and health care needs.
 
Premises Surveillance

For many rape and sexual assault victims here in Florida, justice lies, in part, in a premises liability claim.

 

How Sexual Assault and Rape are defined under Florida Law?

Chapter 794 of Florida Statutes is known as Florida’s sexual battery law. Sexual battery is defined at Florida Statute 794.011 which includes a list of behavior that is unlawful. Additionally, the statute enumerates the punishment that is imposed on an offender based upon the circumstances of the sexual battery, including the age of the victim and/or the offender.

Closely related, Florida Statute 784.046 relates to sexual violence and dating violence.  Under this statute, sexual violence exists “regardless of whether criminal charges based on the incident were filed, reduced, or dismissed by the state attorney.” This statute grants a victim of sexual violence the ability to file a “petition for an injunction for protection against sexual violence on his or her own behalf or on behalf of the minor child.”

How Do Florida Criminal and Civil Laws Help Victims?

Florida’s criminal laws help victims of rape and sexual violence through injunctive relief and imprisonment of the offender.

Additionally, the State of Florida, through the Bureau of Victim Compensation, offers financial assistance to rape victims for certain expenses under the Florida Crime Victims Compensation program.

However, it is through the civil courts and premises liability law that many victims of rape and sexual assault can find meaningful compensation for what they have experienced. This is because in Florida, state law can hold a property owner or business operator liable for monetary damages if it is found to be negligent in providing security at the time the crime occurred.

See: “Crime Victims’ Compensation in Florida: Money Provided for Florida Victims of Crime Who Are Injured and Hurt During Crime.”

Premises Liability for Rape and Sexual Assault

Property owners and business owners are under a legal duty to protect and keep people safe. These include landlords, universities, department stores, restaurants, bars and hotels.  Premises liability claims relating to sexual assault and violence involve examining several issues, including:

Duty to Protect

Property and business owners are to provide security that protects individuals on their premises from being victims of crime.  Measures that these duty bound parties should take include ensuring that:

  • Door locks are in good working order on apartment and rental home doors;
  • Window locks are in good working order on apartment and rental home doors;
  • Door and hallway and access door locks are in good working order for dorms, care facilities, nursing homes, hotels, resorts, and hospitals;
  • Background checks are run on all residents living in the apartment complex;
  • There is active patrolling of access points including parking lots, parking garages, hotel lobbies, dorm lobbies, hallways, elevators, and other areas vulnerable to criminal access; and
  • Repair and maintenance of premises is being kept up with, including adequate lighting of parking facilities and stairwells; upkeep of parking areas including landscaping; alarm systems and video monitoring of the premises.

Read: Landlord Failed to Prevent a Crime; Can The Tenant Sue The Landlord For Injuries?

Higher Standard of Care?

Some establishments may be held to a higher standard of care because of the kind of business or service they provide. Specifically, the hospitality industry (hotels, motels, resorts), schools and universities offering dorms for full-time student living, and nursing homes and care facilities must meet a higher duty of care to keep their residents safe.

Landlords

Florida laws lay out rules and regulations to ensure that landlords take proper precautions to keep tenants safe. For example, Florida Statute § 83.51(2)(a) mandates that Florida landlords must reasonable provisions for locks and keys and for the safe condition of common areas.  The locks need to work, and no one besides those who are legally allowed to have keys to the property should have them.

For more, see: Florida Landlord May Be Legally Responsible Under Negligent Security Laws For An Injury To A Tenant Who Has Been The Victim Of A Sexual Assault Crime

Serving Alcoholic Beverages

Statistically, the likelihood of a rape or sexual assault occurring increases in places where alcohol is sold or allowed to be consumed.  If the perpetrator of the rape or sexual assault was over-served intoxicating beverages by the owner or operator, then this may be shown as a breach of their duty of care to keep patrons safe from harm.  In other words, bars, clubs, or restaurants that allow patrons to get drunk may be liable if that patron later commits rape or sexual assault.

Hotels

Customers trust hotels and other establishments in the hospitality industry to provide a second home or dwelling that is peaceful and safe, even if it is only for a single night.  Accordingly, the hospitality industry is held to a higher standard of care in providing safety and security to its guests.

See: Do Hotels Consider their Duty to Provide Safety and Security as “Risk Management?

School Campus

Public and private schools, as well as Florida colleges and universities are entrusted with keeping their students safe from harm while on school property.  They have a high duty of care to protect students from sexual violence.  Statistics show that children, especially teenagers in their high school years, are especially vulnerable to becoming victims of sexual assault and rape.  Accordingly, Florida law will find the educational facility liable for negligent security damages if it has failed in its duty of care.

See: Crime Victim on Florida College or University: Have You or Your Child Been Hurt in a Crime on a Florida School Campus?

Foreseeability

In any rape or sexual assault, the victim has the burden of proving the event occurred, which can be done with evidence compiled in the criminal case.  The victim must also show that the crime was “foreseeable” in order to hold the owners and operators liable for negligent security.

This can be done in a variety of ways.  One factor will be crime statistics.  If there has been a history of criminal activity in the area, then it can be used as evidence that the victim’s attack was foreseeable.   If there have been prior criminal acts on the premises owned or operated by the defendant, then this is concrete evidence that the victim’s attack was foreseeable by the owner or operator.

For more, read: When is a Crime Legally Foreseeable For a Florida Premises Liability Claim?

Proximate Cause

Another key component of the plaintiff’s case in a negligent security claim based upon rape or sexual assault is “proximate cause.”  Here, the victim must provide evidence that the crime occurred as a direct result of the negligence of the premises owner or operator.  There must be proof providing a direct link, or “proximate cause” between the failure of the owner or operator in its duty to provide security and protection with the criminal act.

For instance, if the rape or sexual assault happened in the stairwell of an office building or dorm, then evidence that the locks on the exterior access doors were not working, allowing the criminal to enter that stairwell will be sufficient to show the landlords negligence was the proximate cause of the sexual battery.

Similarly, if the crime victim was hurt during a sexual assault in a parking lot after sunset, then evidence that the owner or operator had failed to keep up the lighting in the parking lot or that they had failed to man the security guard posts that evening would also likely be enough show the property owner’s failure to act (or negligent security) was the “proximate cause” of the attack.

Premises Liability Insurance

Because Florida law places a duty of care upon property owners, and holds them financially liable for their negligence that results in rape or sexual assault, many of these owners and operators buy liability insurance policies to protect them from these claims.

Insurance can be helpful for a rape or sexual assault victim because it means that there should be money available to cover their personal injury claim.

However, liability insurance also means dealing with experts in defending against liability claims and in trying to limit or low ball settlements.  

See:  Are Florida Insurance Adjusters On Your Side? Beware of the Denied or Low Ball Claim

Negligent Security Claims

Negligent security is the failure of a business or premises owner or operator to provide safeguards to reduce the possibility of foreseeable criminal conduct on the property, resulting in personal injury.

Damages recoverable for a negligent security claim include medical expenses like EMS charges, hospital costs, prescription drug expenses, physical therapy needs, surgery costs, and other economic damages.

Especially important for rape and sexual assault victims are the psychological treatment expenses that should be covered as well.  This includes therapy costs, counseling, and any psychiatric medications that have been prescribed, or will be prescribed in the future (as expected by medical experts).

Rape and sexual assault victims should demand compensation for their emotional distress (past, present, and future) as well as their pain and suffering and lost wages.

Read: Damages and Money Awards to Crime Victims: Can You File a Personal Injury Lawsuits for Financial Help and Justice After a Crime?

Related Claims: Defamation

Media coverage of the sexual assault trial of Bill Cosby and the claims brought against him in civil actions has educated many rape victims and sexual assault victims about the option of suing for defamation under certain circumstances.

If a rape victim or someone who has been the victim of sexual assault here in Florida chooses to file a defamation action, then they can do so.  However, the claim need not be related to a premises liability action based upon negligent security.

Defamation claims in a sexual or rape setting generally relate to the harming the victim’s reputation by calling the victim a liar in the public domain.  Of course, the elements of a defamation of character claim are different than those needed to prove a negligent security claim.

Florida Premises Liability Lawyer Can Help Victims Get Justice

If you or a loved one has been a victim of rape or sexual assault, then you may want to investigate the possibility that this crime could have been prevented if the property owner or operator had taken appropriate and reasonable steps to provide adequate security at the time of the crime.

This is a tragic and painful experience, and we understand the complex difficulties that victims of sexual crimes must face.  However, victims need to know that premises owners and operators may share in the culpability along with the offender if they were negligent in providing security and other measures on their premises.

A good piece of advice if you or a loved have been the victim of rape or a sexual assault is to speak with an experienced personal injury lawyer to learn about some of the issues 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, 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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How Do You Know If A Cafeteria Acted Reasonably In Trying To Prevent a Slip and Fall Accident?

Posted By on June 29, 2017

Unfortunately, South Floridians and our visitors are no strangers to slip and falls in cafeterias. We have all kinds of cafeterias, including those at local public schools and university dining halls, as well as restaurant cafeterias, like the popular Piccadilly Cafeteria chain here in the Miami area.

If a slip and fall occurs at one of these venues, then the victim will be required to prove that the owner or operator of the cafeteria was negligent by showing how they failed to act reasonably in preventing an accident and protecting their customers.

Fruit-bar-pic-Web - Flickr - USDAgov

 

Slip and Fall Law In Florida

Someone who is injured by a slip and fall in a cafeteria due to the negligence of the owner or operator can suffer serious loss as a result. Under Florida law, the losses which can be recovered from the negligent party include:

  • lost wages,
  • hospital bills,
  • pain and suffering,
  • emergency room expenses,
  • physical therapy,
  • ambulance expenses, and
  • other economic and non-economic damages.

Read: Economic vs Non-Economic Damages

Our state’s “premises liability” law says a cafeteria owner or operator is responsible to pay for the slip and fall victim’s damages, or losses, if the accident victim can prove that (1) the cafeteria had notice of a condition which would causes a slip and fall and the condition causing the fall was the actual and proximate cause of that accident and (2) the victim was harmed as a result of the cafeteria’s negligence.

In other words, if the cafeteria owner/staff failed to act reasonably to protect its patron from falling and being hurt on its business property, then it is legally liable for that person’s damages.

How Do You Know If A Cafeteria Owner or Operator Acted Reasonably In Preventing a Slip and Fall?

Besides government regulations, a useful resource to examine when evaluating whether or not a cafeteria owner or operator acted reasonably is the risk control recommendations made by their insurance company.

There are several national insurance companies that provide coverage for slip and fall accidents in cafeterias. These insurance carriers are in the business of providing accident policies tailored to the food services industry like cafeterias, as well as fast food franchises, gourmet restaurants, etc. They are well versed in how those in the restaurant business (particularly cafeterias) should operate safely.

Cafeteria Insurance Company Risk Manuals

Since the insurance company will be the party paying the damage claim, they work hard to understand how slip and fall accidents can happen in a cafeteria, and what steps can be taken to minimize the risks of slip and fall accidents.

These insurance companies compile their research studies and past experience in risk manuals. Many of these cafeteria insurance carrier risk manuals are available online, including those provided by Travelers, Liberty Mutual, and Zurich.

Government Oversight of Cafeteria Safety

There are also Federal laws and regulations that govern how cafeteria operations are to be performed for maximum safety. Federal agencies like OSHA (Occupational Safety and Health Administration) and state agencies, such as the one published online by the University of California system, publish studies on the risk of slip and fall accidents in cafeteria settings.

These studies focus on increasing the safety for both patrons of cafeterias as well as cafeteria workers, as a public service. Laws support them in various ways. For instance, OSHA can inspect both public and private cafeterias and issue fines to the cafeteria operators failing to meet with OSHA safety regulations. The Americans With Disabilities Act (ADA) also sets federal standards for cafeteria premises, and the failure to comply with ADA statutes can result in fines and more.

See the EEOC’s ADA Guide for Restaurants here.

Questions and Issues to Consider After a Florida Cafeteria Slip and Fall Accident

When evaluating whether or not to proceed with a slip and fall claim against the owner or operator of the cafeteria, you’ll want to evaluate the strength of your case.

How do you know how strong your claim is against the cafeteria?

The more evidence that you can gather regarding what happened to you, and what the cafeteria owner or operator did (or failed to do) to prevent a slip and fall accident on their property, the better your chances are of a achieving a satisfactory resolution of your claim.

Evidence can include both witness testimony, as well as documentary evidence like photos, police reports, video surveillance, medical reports, etc.

Read: Documentary Evidence in Florida Personal Injury Cases

The keys here are to be organized and to be educated when negotiating with the insurance adjuster or the defense attorney.

Can you point to specifics that show the failure of the cafeteria to act in a reasonable and prudent manner to prevent your slip and fall accident?

Here are some questions we have compiled from our past experience with slip and falls and from several online risk manuals provided by food services insurance carriers that may help you evaluate your case against the Florida cafeteria. These questions include some taken from the above-referenced risk manuals published online by Traveler’s Insurance, Liberty Mutual, and Zurich.

1. Condition of the Cafeteria Floor

  • What was the condition of the floor itself at the time of the slip and fall? Was it slippery? Was it wet? Was it slick from grease or oil? Was it slippery from food particles?
  • If something that fell on the floor caused your slip and fall accident, how long had it been there? What was it? Who put it there? When was it removed? Who removed it? Was it their customary job to do so?
  • Where there floor mats in the area where you slipped and fell? If not, why not?
  • If so, were these floor mats slip resistant? Were they in good condition, or were they frayed or otherwise damaged or used?
  • If you fell in the kitchen or food prep area, then what was the condition of the floor in the cooking area? The dishwashing area? The paths leading to and from the kitchen to the serving area?

2. Furniture

  • Was there any cafeteria furniture near you at the time you fell? Did it hamper you?
  • What was the condition of the furniture (the chairs, the table, the tray stand, etc.)? Was it in good condition?
  • Was the cafeteria furniture designed for this purpose? Was it stable? Was it sturdy?

3. Trash

  • Where were the trash receptacles located in the cafeteria? Were there enough trash cans? Were they clean?
  • Was there any trash overflowing from them?
  • Did they smell? Were they sticky? Failure to maintain trash receptacles in a food services setting is often a sign that other cafeteria maintenance is not being performed, as well.

4. Clean Up

  • How often is the cafeteria swept?
  • How often is the cafeteria mopped?
  • How often are the cafeteria tables wiped?
  • How often are the cafeteria trays picked up?

5. Caution Warnings

  • When there is a spill or the floors are freshly mopped, are “Wet Floor” signs placed there as a warning?
  • Are there caution signs like “wet floor” used in the cafeteria?
  • Where are they kept? Who is responsible for putting them out as a public warning?
  • Who is responsible for putting caution signs out in the private kitchen and prep areas?

6. Foreign Substances

  • If you tripped over something on the floor, what was it? Was it a food item? Was it debris of some sort? Was it a chair, stool, tray, or other item?
  • Who is responsible for removing hazards off the cafeteria floor? How often do they do this? Why wasn’t this done before you fell and were hurt?

7. Maintenance of the Cafeteria

  • How fast are cafeteria employees instructed to clean up spills? How fast does this really happen?
  • How often are cafeteria employees instructed to sweep the floors? How often does this really occur?
  • How often are cafeteria employees instructed to wipe off counters? How often does this really occur?
  • How often are cafeteria employees instructed to wipe off handrails or supports? How often does this really occur?

8. Dishes and Trays

  • Does the cafeteria provide covers for drinks to minimize spills? If not, why not?
  • Does the cafeteria provide napkins and trays to protect against spills? If not, why not?

9. Ramps and Rails

  • Are there ramps and rails to help people carrying food items to move safety through the cafeteria, from the food line to the tables to the cash register?
  • Are there ramps and rails to help people easily access and exit the cafeteria?
  • Do these support systems comply with the ADA?

10. Workers’ Attire

  • What requirements are made upon the cafeteria workers’ attire: do they have to wear hair nets?
  • Do they have to wear shoes that are closed-toed? Are they required to wear shoes that are not high-heeled? Must their shoes have non-slip soles?

11. Third Parties

  • Have there been any repairs made on the cafeteria in the past six months? If so, who did the repairs? Did they contribute to the fall accident?
  • Is there a third-party cleaning service that cleans the cafeteria before, during, or after closing? If so, have there been complaints about this cleaning service? Have any other slip and fall accidents happened in locations they service in the past year?

Do You Have a Slip and Fall Damages Claim Against a Florida Cafeteria?

If you or a loved one have been the victim of a slip and fall accident that happened in a cafeteria here in South Florida, then you may want to investigate possible legal claims against the owner and operator of that cafeteria with an experienced Florida personal injury lawyer.

If the business who owns or operates that cafeteria failed to act reasonably to prevent that slip and fall or trip and fall accident, it may be legally obligated to cover the injury damages resulting from that fall, including physical therapy expenses, pain and suffering, medical costs, lost wages, and more.

A good piece of advice if you or a loved one has been injured in cafeteria slip and fall, is to speak with an experienced personal injury lawyer to learn about some of the issues 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, whichever you prefer) to answer your questions.

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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What Can You Do When A Judge Won’t Rule On A Motion?

Posted By on June 15, 2017

In Florida, personal injury lawsuits are filed at the county courthouse every day of the week.  These cases proceed through the court system according to established rules of procedure.  There are the Florida Rules of Civil Procedure as well as local rules for particular counties and courts.

Checking Status of Lawsuit and Motion Online at Clerk’s Office

The lawsuits are indexed and maintained by the county clerk’s office.  The status of all civil lawsuits filed in the tri-county area can be checked by reviewing the online databases maintained by the clerk’s office.  For example, a slip and fall victim may review the status of his or her case at:

At these websites, you can find all of the documents filed in each personal injury lawsuit.  They will include all written filings by the parties, as well as Orders issued by the Judge.  Heavily-contested cases can have hundreds of documents filed with the clerk before the matter is concluded.

During the course of a slip and fall lawsuit in Florida, a variety of requests (usually in the form of “Motions”) will be made to the Judge pertaining to things like hearings, discovery and the entry of a judgment. Motions must be made in writing and they must follow certain criteria, including things like notice requirements.

Motions are presented to the clerk for inclusion in the case file and consideration by the Judge.  If the Motions do not meet procedural requirements, then the clerk may refuse to file them or the Judge may refuse to hear them.

 
Chase County, Nebraska courthouse courtroom 1

 

What is a Motion?

Motions are written requests by a party to a lawsuit asking a Judge to make a specified ruling or Order related to an issue. For example, a slip and fall victim as a “party plaintiff” can “move” to have the court issue an order requiring the defendant turn over any video surveillance of the slip and fall.

The judge’s decision on a Motion is official once it is documented through a written order signed by the judge with copies provided to all parties.

To see an example of a motion filed in a Florida court, see our “Motion to Set Aside Summary Judgment.”

Getting a Judge to Rule on a Motion

For the most part, Judges decide, at their discretion, when they will issue a ruling.

So, what can you do when a Judge won’t rule on a motion?  From our years of experience, here are 5 practical suggestions to get the Judge to rule on a motion:

1.  Set a Status Conference

In Florida, either side can schedule a conference with the Judge.  All the parties must be notified of the request, of course.  Under Florida Rule of Civil Procedure 1.200, you can ask for something called a “Case Management Conference”.

Here, you can remind the Judge that a motion is still pending.  But be prepared, once you request a status conference, things may snowball.

At the conference, the Judge can do several things.  For instance, the Judge can rule on pending matters, either on his or her own volition or because of another party’s request. Additionally, the Judge can:

(1) Scheduling hearing dates to hear motions;

(2) Scheduling the trial date;

(3) Making rulings on discover, including the admissibility of documents into evidence;

(4) Discussing agreements between the parties regarding safeguarding of electronically stored information / evidence;

(5) Pursuing the possibility of settlement;

(6) Order Mediation;

(6) Referring issues to a magistrate for findings of fact; and

(7) Scheduling more conferences or determine other matters that may aid in the disposition of the case.

2. Call Judge’s Office

Another approach is to call and check on the motion with the Judge’s office (usually the Judge’s Judicial Assistant, or JA, will be the one answering the phone). The JA is the “front office” for the Judge’s office.

This is an informal tactic and is entirely legal to do without notifying the other side that they are following up with the court.

However, no attorney should speak to the Judge about a pending matter without all other counsel being present.  That is not ethical and it is not allowed.

This approach begins with the lawyer (or his or her assistant) calling and asking to speak with a Judicial Assistant.

Judicial Assistants provide administrative support to the court.  This includes answering questions about the court’s calendar and the status of pending motions.

For instance, if you want to follow up on your Motion, a phone call with the JA may reveal that the Judge has been presiding over a time intensive trial and has spent most work days occupied over this proceeding.  The JA will likely inform you that the Judge will get to pending motions as soon as he or she can.

3.  Seek an Extraordinary Writ

After some time has passed, or when there is urgency to your motion, you may need to take some extraordinary measures to get a ruling on your motion.  This may mean going to the reviewing court (the state court of appeals) for help.

Here, you can file something called an “extraordinary writ.”  Writs are orders that allow actions to proceed and they are issued by the higher courts at both the state and federal levels.  There are all sorts of writs, such as “writs of certiorari” issued by the U.S. Supreme Court, to “writs of habeas corpus” issued in criminal cases.

For a pending motion, it is likely that the extraordinary writ you will seek is a “writ of mandamus.”  You do this by filing a “Petition for Writ of Mandamus” to the Florida appeals court.

If your petition is granted, then the higher court will issue its “writ of mandamus” to the Judge presiding over your lawsuit.

It will compel the trial Judge to rule on the motion.  The appellate court will not rule on the motion, but it has the power to demand that the lower court Judge do so.

Before taking this step, consider the following:  Obtaining a Writ of Mandamus is difficult to achieve.  This is because your burden is high: you must establish that the Judge has failed to follow his or her duty to rule on your Motion.

Also, the other party (parties) to your lawsuit will be required by the appeals court to file a response to your petition.  They may disagree with your petition and may seek to undermine your petition by pointing out weaknesses in your position and argue them against you.

Additionally, some trial Judges do not appreciate having their behavior reviewed, but particularly on something like a calendar delay.  Judges in Florida are busy, and chances are they have a good reason for not yet ruling on your motion.

Finally, filing an extraordinary writ must be weighed against the very human reaction a Judge may have for taking this step to force him or her to act.

4. Write a Letter

Another informal approach may be to write a letter to the Judge about the pending motion and the need for a ruling.  The Rules of Procedure states that this is acceptable as long as all the parties are copied with the correspondence.

In the letter, you can be short and sweet.  Just remind the Judge that a motion is outstanding, and ask for an update.  Address the letter to the attention of the Judicial Assistant.

5.  Check the Rules of Procedure

Finally, there are certain cases where the Judges do have some procedural requirements to meet in ruling on Motions made in pending litigation.

For instance, family law cases are special kinds of matters.  In family law, child custody issues may be vitally important and need fast action.  The same is true for child support issues.

So, in Florida family law cases, the Florida Supreme Court has enacted a special set of procedural rules.  These include mandates where Judges have to rule, or at least set a hearing, on certain issues. See, Florida Family Law Rules of Procedure.

Motions for Summary Judgment

Most motions deal with specific issues, such as extending discovery deadlines, excluding some type of evidence or witness, or compelling actions like depositions.  However, there is a Motion that can end a case by entry of a judgment in favor of the moving party, called a Motion For Summary Judgment (MSJ).

Florida Rule of Civil Procedure 1.510 governs this type of request.  Under the rule, the Judge is instructed that a judgment must be rendered immediately “…if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

In a Motion For Summary Judgment, the party is asking the Judge to rule on the entire case and enter a final judgment in the proceeding.

These motions replace the need for any trial because they are summary dispositions of the lawsuit.

Accordingly, it will likely take a Judge longer to review, analyze and decide on a Motion for Summary Judgment.   The Judge may be mandated to rule “immediately,” but that does not mean he or she will not need time to consider the arguments of counsel during the hearing, as well as the documents filed, like memorandum of law, regarding the MSJ.

Strategically, it may not be wise for the movant to be anxious when awaiting the Judge’s decision on a summary disposition.  If it’s a close call, then aggression may sway things to a non-appealable denial of the MSJ.

For more on motions for summary judgment, see:

What Should You Do?

If you have been injured in a slip and fall here in Florida, then you may have no choice but to file a lawsuit for damages if the person (or persons) responsible for your injuries refuses to settle or take responsibly for their actions.

Some slip and falls are notorious for having stubborn defendants who may force the injured person to file a personal injury lawsuit.  For instance, grocery stores like Publix and Walmart can be very difficult when it comes to these claims.

Having an experienced Florida personal injury lawyer on the team can be a great advantage to a victim.  For example, experience can provide insight into the strategies of insurance companies and their defense lawyers as to how they respond to claims.

However, it’s also important to understand how an experienced injury attorney can provide expertise in how best to keep your case moving forward toward trial and a final result, such as having Motions heard and Orders issued.

A good piece of advice if you are having difficulty getting a motion heard by the court, is to speak with an experienced personal injury lawyer. 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 Be Also Interested In:

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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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How Do Personal Injury Contingent Fee Agreements Work in Florida?

Posted By on May 24, 2017

How Much Money Will A Victim Receive if a Settlement or Jury Award is Granted In a Personal Injury Lawsuit?

If you have been injured in a car accident or a slip and fall in Florida and have hired a personal injury attorney to represent you with your claim for compensation, then you have likely entered into a “contingent fee agreement” with that lawyer.

FEMA - 14016 - Photograph by Jocelyn Augustino taken on 07-14-2005 in Florida

What happens to the hospital bill when you sign a contingent fee agreement?

What is a Contingent Fee Agreement?

A “contingent fee agreement” is a type of written legal agreement where you and your attorney establish an attorney-client relationship.  These agreements are required when hiring a lawyer to commence legal representation on a contingent personal injury matter.

The language in a contingent fee agreement outlines how much an attorney will be compensated for his or her services. This amount paid to the attorney for services rendered is contingent upon:

(1) A settlement of the case;

(2) A trial verdict in favor of the injured party; or

(3) An arbitration award on your behalf.

Thus, a personal injury lawyer will not receive payment for services rendered unless the victim receives compensation from the negligent party (or their insurance company).

Does The Client Pay a Retainer to The Attorney?

In most contingency fee agreements, a client does not pay a retainer to the attorney. A retainer is typically only required in cases where the lawyer is being paid an hourly rate, and not on a contingency fee basis.

How is The Attorney Fee Determined?

At the time the contingent fee agreement is signed, the lawyer will discuss with the client the percentage of the recovery that will be paid to the lawyer for his or her services. Some common issues that impact the percentage paid to a personal injury lawyer include:

1.  If The Case Goes to Trial or Appeal

Most personal injury contingency fee agreements allow for the percentage paid to the lawyer to increase if the case goes to trial, with another increase if the case is appealed.

2.  If The Lawyer is Not Successful

The key factor in a contingent fee agreement is that the lawyer will not be paid unless the case is won and damages are paid to the victim.
Additionally, the accident victim does not have to pay his or her lawyer while the case or claim is being pursued.

3.  Florida Rules of Professional Conduct Set the Percentages

Every lawyer licensed to practice in the State of Florida is governed by the Florida Rules of Professional Conduct (“Rules”), as set forth by the Florida Supreme Court.

These rules set the maximum percentage rate that can be charged by a Florida personal injury attorney in a contingent fee contract. This is true unless:

(1) a smaller fee is agreed upon and written into the contingent fee agreement; or

(2) the court approves a higher fee at the time that the case is filed as a lawsuit.

**Note: There are different rules for standard accident and injury matters and medical malpractice contingent fee cases.

For details in how these percentages are established under the Rules, and “creative attorneys’ fees,” read the discussion of “Personal Injury Fees in Florida,” on our website HallandaleLaw.com.

How Does The Amount of Compensation Received By a Victim Change When a Personal Injury Lawsuit is Filed?

The longer a claim or case stays open, the more costly it becomes for the plaintiff. That’s because contingent fee agreements state that the victim’s personal injury lawyer receives more compensation if the case requires filing a personal injury lawsuit.

Because the amount of fee paid to a personal injury lawyer increases once a lawsuit is filed, some clients instead choose to accept a pre-suit settlement offer.

Sometimes, the best time to accept a settlement offer is during pre-suit negotiations with an insurance adjuster. This is true even where the liability is clear and the documentation of damages is well established. (For more on this issue, read our post on documenting your Florida personal injury case.)

However, a victim is sometimes unable to settle their claim quickly, as insurance adjuster will try to diminish their damages as much as possible. This is commonly seen with car accident injury claims.

See: Why is it hard to get a settlement in a rear end car accident claim?

Trial and Appeal

When pre-suit settlement can’t be reached, a victim must file a personal injury lawsuit in order to get justice.

When a case is in litigation, your lawyer will have to spend additional time and money to purse a claim. This in turn means the compensation your lawyer will receive will increase. That’s because of the time spent on things like discovery, attending court hearings and the trial and the costs for things like expert witnesses, filing fees, discovery fees, services of process, and court reporter related charges.

Furthermore, in the event an Appeal is filed, then the lawyer will have to perform even more work including legal research, drafting an appellate brief, possibly drafting a responsive brief and/or arguing before the appellate court, along with paying for trial transcripts. All of this extra works involves many hours of work, which is why a higher fee is charged when a case is take up on appeal.

Read: What Happens in a Deposition for a Personal Injury Case?

Co-Representation

Sometimes, your lawyer will find it advantageous to your case to bring in additional counsel to pursue a claim.  The are several situations in which a client may benefit from having additional lawyers working on their file.

One common example is “local counsel,” where hiring an attorney from the local area is helpful when the case is being litigated in another county or other part of the state.

More commonly, additional counsel may be hired to research specific areas of the law in your case This person would be considered the “research attorney”.

It is important to note that if another lawyer comes on board, it does not change the amount of recovery that you will receive should there be a settlement or jury verdict.  Your original lawyer will receive less, not you.

Expenses of Litigation

Expenses during litigation include things like:

  • Certified Fees for things like Police Reports
  • Copy costs for things like financial records to prove your lost wages
  • Filing fees at the clerk’s office
  • Deposition costs / court reporter fees
  • Expert witness fees for expert witnesses (like a doctor giving his opinion on the severity of your injuries).

Payment of these expenses are sometimes deferred until a later date; they are deducted from your recovery after your case has been settled or won at trial.

Your contingent fee agreement will outline the possible costs of litigation and how they will be deducted from your share of the recovery amount. Meaning, the payment of these expenses does not come out of your lawyer’s share of the recovery.

Court Reporters

Court reporters record the words that are said by the judge, the lawyers, and the witnesses, which then becomes “trial record.”

Specifically, they are expert stenographers who are entrusted with the transcribed record of the case during trial as well as transcriptions of testimony before trial.

They also assist in depositions. In their official capacity, they swear in witnesses and take down their testimony, as well as any objections made by the lawyers during the deposition. Everything that happens in a deposition is recorded in the deposition transcripts.

Court reporting services can be a big expense in an injury case that becomes a lawsuit and goes to trial. Additionally, if the case is appealed, then the entire “trial record” must be ordered to prepare the appellate briefs and arguments.

Typically, court reporters charge for the transcription per page, and charge an hourly fee for their appearance at a hearing or deposition.

Medical Liens

Health care providers generally understand the process when a personal injury claim has been filed. They know that the at fault person will ultimately be held responsible for compensating the victim for their medical expenses.

However, these providers will still take steps to make sure that their invoices are paid, and may file medical liens in order to do so.

These liens are filed in order to insure that the provider has a legal claim against the final recovery in the case. Under Florida law, a valid medical lien can be asserted against personal injury settlement funds or recovery proceeds.

However, if the medical provider does not file a medical lien, his or her invoice must still be paid in full.

What is a Closing Statement?

At the end of the case, you will be given an itemization of all the costs and expenses incurred during the course of your representation (a “Closing Statement”).

It will detail all the costs and expenses as well as the attorney’s contingent fee.  It will also tally how each item is deducted from the total recovery and show any costs that you do not have to pay.  Most importantly, the statement will provide you with the net recovery that you will receive.

Both you and your attorney will go over this itemized statement, and both of you must sign the Closing Statement before the proceeds can be distributed.

What Should You Do?

If you have been injured in an accident, then an experienced Florida personal injury lawyer can be very helpful in pursuing your claims for damages and in seeking justice for your harm.

A good piece of advice if you have been harmed as a result of someone’s negligence, is to speak with an experienced personal injury lawyer before you file a claim to learn about some of the issues that can arise with these claims, including the type of evidence needed to prove a claim and the procedures to lawfully recover certain evidence. Most personal injury lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person) 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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