Abusive Insurance Adjusters – Leveling The Playing Field

Posted By on December 1, 2016

Accidents interrupt lives. Not just yours, but those who rely on you.  The stress from dealing with ordinary life plus coping with injuries as well as doctor visits and recuperation can be overwhelming.  Added to this is the fact that you will likely have to deal with an insurance company adjuster, whose job in part is to pay out as little as possible on a claim, in order to recover the compensation you need to rebuild your life.

In Florida, injury victims are free to deal with an insurance company after an accident without hiring an attorney.  This works for some accident victims.

And as a public service for those victims, we provide online resources to help them negotiate directly with the insurance company handling their accident claim.  We are happy to do so.

For instance, read our post: 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?

More Help in Negotiating with a Florida Insurance Adjuster

For those who have been injured and have decided to try and settle their injury claim with an insurance adjuster without a lawyer, then this article should be helpful to you.

Why?  With our many years of experience dealing with clients and Florida insurance companies and their adjusters, we know that things can get frustrating very fast for an accident victim.  Indeed, we know that all too often, the insurance adjuster will try to take advantage of an unrepresented victim in settlement negotiations.

 

A no money handshake

 

So, we are providing this support for those injury victims who want to go at it alone – someone we know that is already having to deal with so much in the aftermath of their accident and doesn’t deserve to be mistreated by the insurance bureaucracy.

Level the Playing Field Between You and The Insurance Adjuster

All too often, those who file claims with Florida insurance companies face adjusters who ignore them.  Phone calls are not returned.  Questions are not answered.  Paperwork is lost. Low ball offers are sent that are insultingly small.

The information below is intended to give insight and assistance to those who are working with an insurance company and are finding it difficult to get anywhere.

Note: our resources are providing general information but cannot and should not be read to substitute for advice of counsel.  We’re not creating an attorney-client relationship.

Our goal is to share what we know about Florida personal injury law and to help injured victims gain an understanding of how Florida’s accident laws work and how a victim can settle their claim with less frustration and delay.

We don’t like it when someone abuses their power and tries to take advantage of someone simply because the victim has less information than the abusing party.

 

Insurance Companies

Insurance companies are in the business of selling policies to business and individuals to cover their losses in the event they cause an accident.  The United States insurance industry is the largest in the world.

The Department of Transportation considers the American insurance industry to be “vital” to our nation’s economy, with revenues each year exceeding $1,000,000,000.00 (One Trillion Dollars).

This means insurance companies are in the business of making money — and they are very, very good at it.

For you, the accident victim, understanding how sophisticated insurance companies are, despite they homey and personal advertising campaigns, is extremely important.

Why? Because your injury claim, as well as all other accident claims, are threats to their bottom line.  The less money that is paid in claims, the more that is kept in the company coffers.

If you are negotiating with the insurance company, then you need to know their viewpoint.  It’s business to them no matter how caring and concerned they appear in any communications with you.  See, Top 10 Reasons Why Insurance Companies Don’t Pay Car Accident Claims.

For more information, read our posts:

10 Ways To Get the Insurance Company To Pay Your Car Accident Claim

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

What type of notice does your insurance company have to give you regarding PIP?

What does automobile liability insurance cover?

What does your insurance company have to do once you tell them you were in a car accident?

What happens if the driver who hit me as I crossed the street does not have automobile insurance?

How can you collect more car accident damages than the insurance policy limits?

How does an insurance company investigate my past medical history?

How long does an insurance company have to respond to a demand letter?

Who is Protected by Your Auto Insurance Policy?

Are You Covered?: Who is The Named Insured on Your Auto Insurance Policy?

Will Your Insurance Rates Go Up if You Pursue an Accident Claim or Receive Compensation For Your Damages?

Should You Have Stacked Uninsured Insurance Coverage in Florida?

What is Uninsured Motorist (UM) Insurance Coverage?

Florida PIP Insurance: Will Florida Abandon PIP Coverage Next Year and What Happened to the 2012 Florida PIP Reform Law?

5 Things You Should Know About Car Insurance Adjusters When You Have A Car Accident Claim

Florida Homeowners’ Policy and Claims Bill of Rights Draft Released by Florida Consumer Advocate: Protecting Against Insurance Adjusters

Injured People Settling Their Own Insurance Claims in Florida – When Should They Call a Florida Lawyer to Help Get Fair Compensation?

Bad Faith – Insurance Adjusters: Suing Your Insurance Company For Failing to Pay Your Insurance Claim (or Not Paying Enough)

 

Insurance Adjusters

Insurance adjusters are also known as “claims adjusters.”  They may be the employees of the insurance company who sold a policy to the person who is responsible for your accident and injuries.  These are “in-house” adjusters or “staff adjusters.”

Sometimes, they are “independent adjusters.”  They are employees of a separate insurance adjuster company.  Independent adjusters are used, as a general rule, when the insurance company does not have a field office in your location or town.

Then there are “public adjusters.”  These are adjusters that work for the policyholder.  They are an employee of the business or company that paid the insurance premiums and is responsible for your accident.

Their job is always the same, whether they are “in house” or independent or public:  to settle the accident’s claim for as little as possible.  See, “Florida Insurance Adjusters Work Hard to Keep Car Accident Claims Payment As Low as Possible – And They Have a Bag of Tricks to Use to Pay You as Little as They Can.”

For more information, read our posts:

5 Things You Should Know About Car Insurance Adjusters When You Have A Car Accident Claim

Florida Homeowners’ Policy and Claims Bill of Rights Draft Released by Florida Consumer Advocate: Protecting Against Insurance Adjusters

Bad Faith – Insurance Adjusters: Suing Your Insurance Company For Failing to Pay Your Insurance Claim (or Not Paying Enough)

The Problem of Phony Public Adjusters in Florida: Fake Public Insurance Adjusters in Florida Commit a Felony, Hurt Unsuspecting Floridians Needing Help After an Accident or Injury

Are Florida Insurance Adjusters On Your Side?: Beware of the Denied Claim, the Low Ball Claim and the Recorded Statement.

Does a Florida Insurance Adjuster Want to Record Your Statement about an Accident or Injury? 10 Things to Know About Recorded Statements by Insurance Adjusters

What does your insurance company have to do once you tell them you were in a car accident?

 

How to Settle Your Case

If you are negotiating your claim with the insurance company, then you will be dealing with their adjuster.

Be ready.  The adjuster is a trained professional, with past experience dealing with countless claims that are similar to your own.  He or she will be well educated in how to investigate the accident itself, too.  Adjusters are expected to keep up with industry continuing education courses in their areas of expertise.

The adjuster will be responsible for investigating your accident as well as documenting his investigation.  He or she will make their own determination of what has happened and report it to their employer.  It will be with their approval that you will receive a settlement offer.

And it will be with this adjuster that you will negotiate that offer and settle your claim (unless you choose to file a lawsuit against the person who caused your injuries).

Settling most accident claims will involve (1) the adjuster asking you for a recorded statement and (2) a release of your medical records as part of the investigation.  He or she will want the name of your doctor (or doctors), too.

A claim number will be assigned to your case.  You’ll get letters that confirm things, like you have been contacted and that you’ve reported a claim to the company.  That’s so the insurance company can document that they are doing things – it’s not to comfort you or help ease your anxiety.

You will have the responsibility of preparing your own “demand” with documentation to support your claim for damages.  You will need to organize documentation that includes medical records, prescription drug receipts, hospital invoices, lost wages evidence, and things like car repair invoices.

This is an ongoing job.  As you incur more medical bills and doctor visits and as you are not able to work, then you will have to keep supplementing your demand documentation.

The adjuster will not respect nor pay for any demand that is not properly supported in your documentation.

How much should you ask for in your demand?  It will depend upon your individual situation.  Should you make a demand while you are still treating your injuries?  Should you have surgery before making a demand? Should you ask for three times your total medical expenses and lost wages?  Five times?  Ten times?  You will have to decide what is reasonable and fair in your case.

For more information, read our posts:

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

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

What do I need to prove in order to get a Florida slip and fall settlement?

Can Age Affect Settlement Of A Personal Injury Claim?

What happens during a personal injury settlement conference?

Can Settlement Negotiations Be Used Against You in Your Injury Case?

What Can I Expect in Settlement of a Florida Injury Claim?

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?

How Can You Gain Leverage When Settling Your Slip And Fall Claim?

Can I recover for my future damages if I was hurt in a slip and fall?

How to Settle a Walkway or Hallway Slip and Fall Accident

Injured People Settling Their Own Insurance Claims in Florida – When Should They Call a Florida Lawyer to Help Get Fair Compensation?

Why Is It Taking So Long To Settle My Case? Is It Time to Settle Your Car Accident Case (Injury Claim) or to Take Them to Trial?

 

Demand Letters

Your formal written presentation of your accident claim to the insurance company will begin with a “demand letter.”  This is not just a letter you write to the insurance company.  It is a cover letter with details of your claim, together with supporting documentation.

A demand letter is really a package of paperwork.  It may well include photographs of the accident scene and/or your injuries; invoices; receipts; doctor’s reports; X-Rays; and more.  See our post, “5 Documents You Should Include With Your Slip And Fall Demand Letter.”

For more information, read:

What Happens When You Make a “Demand for Damages and Compensation” in a Florida Car Accident Case?

How do I write a demand letter for personal injury without hiring a lawyer?

How long does an insurance company have to respond to a demand letter?

 

How to Prove Your Claim

Your accident claim must be supported by facts and evidence that confirms that what you are demanding is reasonable and fair under the circumstances.  If you are negotiating for yourself, then you have the task of gathering all the proof needed for every part of your insurance claim.  This is a big job.

How so?  First, this will include providing documentation of how and why the accident occurred (liability and fault).  You must show that the insured is liable and responsible for what happened to you.

Second, It will also include giving evidence of past, present, and future costs and expenses (damages).  You have to prove documentation and support for your damages claim – the dollars and cents you are demanding be paid to you.

Damages are defined in Florida law.  What you can collect in an insurance claim may not be all your harm, not every loss is covered here.

Damages that are covered include “compensatory damages.”  These are things you have actual invoices for – doctor’s bills, the EMS charge, etc.  Compensatory damages exist to “compensate” the victim for harm they have experienced.

Some damages may be challenged; whiplash, for instance.  Do not expect the insurance adjuster to want to cover a claim for whiplash without medical support.  Even then, he or she may try and low ball that damage coverage, because adjusters are jaded and suspicious about whiplash claims.

For more information, read our posts:

Walmart Slip And Fall – How to Prove Your Claim In Florida

Grocery Store Slip and Fall – How to Prove Your Claim

Hurt While Food Shopping in Florida?: What are the Evidence Requirements to Prove Your Slip and Fall Injury Claim Against The Grocery Store or Supermarket?

How do you prove your back injuries if you were in a rear end car accident in Florida?

How do you prove permanent injuries from a slip and fall in Florida?

What do I need to prove in order to get a Florida slip and fall settlement?

What happens if I can’t prove how the water got on the floor in my slip and fall case?

How can I prove that the store owner knew about the dangerous conditions that led to my slip and fall accident?

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

How Do You Know If a Florida Hotel Acted Reasonably In Trying To Prevent A Bathtub or Shower Slip and Fall?

Is A Loose Object on the Floor A “Dangerous Condition?”

What happens when there is no evidence that the property owner had actual knowledge of a hazardous condition on their property?

Florida Hotel Slip and Falls: What is the Victim’s Evidence Burden When Falling at Hotel and Trying to Recover Compensation?

Is permanent pain considered a permanent injury in Florida?

How to Prove a Slip and Fall Claim at a Shopping Mall or Strip Center

How to Prove a Slip and Fall Claim at a Theme Park Like Disney World

How to Prove Your Accident Claim: Slip and Fall in a Grocery Store

How to Prove a Restaurant Slip and Fall Claim

Proving a Slip and Fall Claim Against a Florida Hotel

When is a Crime Legally Foreseeable For a Florida Premises Liability Claim?

What Type of Proof Do You Need for Your Florida Slip and Fall Claim?

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

Proving a Florida Slip and Fall Injury Claim: What Does The Person Hurt in a Fall Have to do to Prove Owner Knew of Danger That Someone Could Slip and Fall and Didn’t Fix It?

 

Recovering Damages

Florida law defines what damages are covered in an accident claim.  There are laws for what harm is covered by the insurance policy.  Accident victims may be surprised to learn that not all harm is covered here.

Both the insurance policy as well as Florida laws passed by the Florida legislature (and defined by Florida courts) will decide what damages can be recovered by a Florida accident victim.

If you are negotiating, then know things like emotional distress or pain and suffering can be challenged by the insurance adjuster in an accident claim.  See, e.g., “What are Permanent Injury Damages and How are they Determined in a Florida Injury Case?

There are also laws for who can collect what kind of damages; for example, if there is a fatal accident then Florida Wrongful Death laws explain who files the claim and which family members are allowed to collect wrongful death damages.

For more information, read our posts:

How do you determine pain and suffering damages for back pain caused by a slip and fall?

What kind of damages can I receive if my parent dies in a car accident?

Do you need a physical injury to recover emotional distress damages?

How can you collect more car accident damages than the insurance policy limits?

Can I recover for my future damages if I was hurt in a slip and fall?

How do I recover emotional distress damages?

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

Can An Injury Victim Recover Damages If They Don’t Have Surgery?

How To Recover Emotional Distress Damages Without a Physical Injury in Florida

How Do You Recover Emotional Distress Damages in Florida?

Can You Recover Damages For Depression Even If You Delay Treatment?

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

What Happens When You Make a “Demand for Damages and Compensation” in a Florida Car Accident Case?

Does Fault Impact Damages in a Florida Car Crash?

What damages can you collect for a concussion in a Florida car accident?

Pain and Suffering Claims Now and In The Future – Do You Have a Case for Pain and Suffering Damages?

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?

Ankle Injuries in a Slip and Fall Accident: What Kind of Damages Can You Recover in a Florida Slip and Fall Claim?

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

Is permanent pain considered a permanent injury in Florida?

 

Did You Fall Down? All about Premises Liability Claims – Slip and Fall Claims

In past years, there was criminal abuse of the insurance system.  Lots of fake claims were filed in Florida over slip-and-fall accidents.  As a result, the Florida legislature has passed laws to try and stop rampant slip and fall accident fraud.

For many accident victims, who are already dealing with so much as they recover from their injuries,  this can mean a difficult hurdle to jump.  Why?  Because in the effort to make sure that criminals aren’t taking advantage of the system, the law has increased the burden on the legitimate slip and fall victim to prove their case.

The burden of proof placed upon the Florida accident victim is higher now.  It’s also higher than it is in other states, which can surprise victims who are new to Florida.  Under Florida law, the victim must prove the actual knowledge of the business at the time of the accident.  This can be very hard to do – proving with documents and testimony what a business really and truly knew at that moment in time.

Moreover, the duty placed upon the business will differ depending upon what the legal status was for the accident victim at the time of the injury.  Was she an invitee or a licensee or a trespasser?   An invitee gets much more legal protection in a fall than someone who was a licensee or trespasser.  (So expect the adjuster to be trying to find ways to label someone as other than an “invitee.”)

For more information, read our posts:

Does a Hotel Have a Duty to Protect You From Hidden Defects?

Hotel Off-Premises Liability: Hotel Guest Killed Crossing the Highway

Does a Florida Hotel Have Liability When a Hotel Guest Drowns From an Ocean Riptide?

What Happens When Someone Is Injured at a Business or Commercial Location?: Florida Premises Liability Law

What Do You Do If You’re Injured in a Slip and Fall? First Steps to Take in a Fall Injury Claim

What Type Of Legal Duty Does A Florida Property Owner Have For Injuries To Visitors?: Florida Premises Liability’s Invitee, Licensee, Trespasser Distinctions

Hurt at a Florida Theme Park? Did You Slip and Fall at Disney or Another Florida Amusement Park? Florida Premises Liability Law Controls Your Claim

Duty to Protect Yourself at a Hotel, Bar, Theme Park, Concert — Who Has The Responsibility to Protect Customers Against Injuries?

Florida Hotel Liability: If You are Hurt in a Tribal Hotel, Resort, or Casino on Indian Reservation Land Then Florida Injury Laws Will Not Protect You

Have You Been Hurt During the Commission of a Crime in South Florida? Personal Injury Florida Negligent Security Claims Based Upon Criminal Acts

 

Did the Business Owner Act Reasonably?

In Florida, legislation has been passed which places a bigger burden on the accident victim to get their damages covered in an accident.  Premises liability claims particularly must have evidence presented by the person who was hurt that the business owner failed to act in a reasonable manner at the time of the accident.

It’s not the burden of the business to do so – it’s yours, as you settle the claim with the adjuster.  Your settlement demand letter must include documentation to support your argument that the business was not acting reasonably at the time you were hurt.

How do you do this?  We’ve delved into all sorts of scenarios, discussing areas where a business may fail to act reasonably in an accident and be liable for their harm.  Wet floors in a restroom, weakened railings on a stairwell, even failing brake lights can all be evidence of unreasonable business practices under Florida law.

For more information, read our posts:

How Do You Know If A Business or Property Owner Acted Reasonably In Trying To Prevent A Stairway Slip and Fall Accident?

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

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

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 Business Acted Reasonably In Trying To Prevent a Restroom Slip and Fall Accident?

Stage or Elevation Slip and Falls in Florida

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

Backing Car Accidents in Florida

How to Settle a Walkway or Hallway Slip and Fall Accident

30 Questions to Ask After an Entryway Slip and Fall

How Do You Know If A Driver Acted Reasonably In Trying To Prevent a Pedestrian Accident?

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

 

Hurt in an Auto Accident? All about Car Accident Claims

Car crashes and motor vehicle accident claims are perhaps the most common type of claim that an insurance adjuster deals with here in Florida.  If you are settling your accident claim, then we hope that this car crash is the only time that you will ever be involved in an auto accident and suffer injuries.

However, while this may be your own time to deal with the aftermath of an auto accident, remember that the insurance adjuster is a professional expert in these things.  He or she will have made assumptions about your accident long before you start to negotiations.  The adjuster will compare your claim with the thousands he or she has seen before, and use that information to try and keep from paying you anything over his past averages regardless of how unique your situation may be.

It will be your job in negotiation to make sure that the adjuster understands and respects why your claim is unique and not something for a cookie-cutter approach.  For instance, not all rear end accidents are alike, although there is the presumption that the rear car driver is responsible for the crash.

Another example:  distracted driving.  It is very hard to prove that the driver who caused the accident was distracted at the time of the crash.  The adjuster may not be interested in doing the leg work to find out if the driver was in fact on their phone or eating a cheeseburger when the crash occurred.  It will be your job to document these facts as part of your demand and settlement negotiation.

For more information, read our posts:

5 Things You Should Know About Car Insurance Adjusters When You Have A Car Accident Claim

10 Ways To Get the Insurance Company To Pay Your Car Accident Claim

Top 10 Reasons Why Insurance Companies Don’t Pay Car Accident Claims

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

When aren’t you able to recover lost wages in a car accident or slip and fall case?

What kind of damages can I receive if my parent dies in a car accident?

How do you prove your back injuries if you were in a rear end car accident in Florida?

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

What does your insurance company have to do once you tell them you were in a car accident?

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

How does talking on a cellphone or texting while driving affect a car accident claim?

What happens when the person who caused my car accident dies?

How can you collect more car accident damages than the insurance policy limits?

What are the risks of taking a car accident claim to trial in Florida?

Car Accidents With Company Cars or Commercial Vehicles: What is Respondeat Superior?

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

Not Wearing A Seat Belt and Hurt in a Florida Car Accident: Can You Receive Compensation?

Car Accidents: Driver’s Duty to Passengers

12 Common Car Accident Lawsuits in Florida

The 5 Most Popular Car Accident Lawsuits That Go to Trial in Florida

What is Reckless Driving Under Florida Law? Were You Injured in a Car Accident Caused By a Reckless Driver?

What damages can you collect for a concussion in a Florida car accident?

Who Pays Damages and Compensation in a Florida Car Accident Involving Drunk Driving?

Why Is It Taking So Long To Settle My Case? Is It Time to Settle Your Car Accident Case (Injury Claim) or to Take Them to Trial?

Can Your Florida Insurance Company Demand Examination Under Oath for PIP Benefits After a Florida Car Crash? Yes and No for Florida Auto Accident Claims, Here’s Why.

How Do You Know If A Driver Acted Reasonably In Trying To Prevent a Pedestrian Accident?

 

Help With Accident Claims

An experienced Florida personal injury lawyer deals with insurance adjusters all of the time; they know how they operate.  They know how adjusters respond to claims and know which adjusters are more prone to deal fairly, while others tend toward gamesmanship.  Notwithstanding these facts, this article was written to help fight against abusive adjusters and to help level the playing field for those who want to settle their case without a lawyer.

If you or a loved one has been injured in an accident in Florida and you have questions about dealing with an insurance adjuster, 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.

Also see:

Car Accident Compensation Form

How To Settle A Personal Injury Claim Without a Lawyer

 

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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.

Can you collect damages in a car accident if you have no permanent injury?

Posted By on November 22, 2016

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 you collect damages in a car accident if you have no permanent injury?

A: In most Florida automobile accident cases, in Florida, in order to recover for what’s called non-economic damages, which are your pain and suffering and inconvenience and your disability and inability to lead a normal life, in order to recover those types of damages, in most cases the injured person must prove that he or she sustained a permanent injury within a reasonable degree of medical probability. That is an opinion which his or her doctor will give. Many times the doctor will say there’s a permanent injury, but the insurance company’s doctor will say there’s not a permanent injury. Therefore, the jury will decide but if the jury decides that there is no permanent injury, you cannot recover monetary damages for your pain and suffering in Florida automobile cases only. You still can recover money for unpaid medical expenses and unpaid lost wages, but those usually aren’t sufficient enough to warrant the filing of a lawsuit.

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.

 

 

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

Florida Car Accident Compensation Law

Posted By on November 17, 2016

Living in Florida, you may be aware of “no fault insurance” and the “threshold injury” requirements regarding insurance coverage and car accidents.  Florida’s car accident compensation law is different than most other states when it comes to victims being able to recover compensation for their injuries.

Are All Injuries Covered After an Auto Accident?

In Florida, drivers should know that just because they are hurt in a car accident does not automatically mean they will be able to recover compensation for their injuries.  Why?

The simple answer is that the Florida legislature decided that some car accident injuries should NOT be recoverable under Florida law. 

This fact is important to know especially for those who are trying to settle a claim with an insurance adjuster without the use of a lawyer.

See – How Do You Know If Your Settlement Offer From the Insurance Company is Fair?

 

 

Florida Car Accident Compensation Law:  Florida Statute 627.737

Several years ago, the Florida Legislature passed Florida Statute 627.737 for the purpose, in part, of reducing lawsuits and lowering insurance costs.  Not only has the initial statute been amended since then, but court cases have expanded its application and interpreted its meaning.  It is important to read the statute as well as the case law to know exactly how the law works, including the requirements that must be met before a victim may recover damages for things like the loss of an important bodily function.

Florida Statute 627.737 deals with insurance policies (called contracts under the statute) and car accidents and other motor vehicle accidents that happen in the State of Florida.  It basically sets forth the requirements that must be met before an insurance company is required to pay or compensate a victim for their non-economic damages.

Are There Exceptions to Florida Statute 627.737’s Requirements?

There are some exceptions to the requirements of the statute.  For instance, some plaintiffs are exempt from having to prove permanent injury in order to recover compensation under the law (for example, someone who has been injured while driving in a taxi cab or public mass transit vehicle (bus) is not subject to the permanent injury threshold).

However, for the most part Florida’s car accident compensation law will control your  claim when the party causing the accident has an insurance contract in place.

What Are The Threshold Requirements?

The Florida Supreme Court has held that (1) pain and suffering along with (2) mental anguish and (3) inconvenience are damages that can be recovered by a car accident victim.  These are called “non-economic damages.”

However, the accident victim must prove that their damages are the result of an injury that has been deemed by their doctors “with a reasonable degree of medical probability” to be a permanent injury.  Wald v. Grainger, 64 So.3d 1201 (2011).

Sometimes that’s not easy to determine.  In fact, if the case isn’t resolved by a negotiated settlement, that question is usually answered by a jury.

For instance, in a case where a car accident victim had to have temporomandibular joint (TMJ) surgery on their jaw, experts debated if this was a permanent injury “with a reasonable degree of medical probability.”  Because the medical professionals couldn’t form an unanimous opinion, the answer was left to the jury to decide.  Emanuele v. Perdue, App. 4 Dist., 693 So.2d 1071 (1997).

Permanent Disfigurement and Scars

What about scars or disfigurements as the result of an auto accident?  These damages may or may not be covered under Florida’s car accident compensation law.

Here, the jury will be asked to decide if the scar or “disfigurement” is a permanent injury.  If the case is not settled before trial, then the jurors will observe the scars and disfigurements for themselves, and decide if they are permanent injuries.  If so, then they will be covered as compensable damages.  Cohen v. Pollack, 674 So.2d 805 (1996) .

Property Damage

Most accidents involve claims not only for personal injuries but also damage to property.  In serious car crashes, the vehicles are often totaled.  What happens to claims for damage to your vehicle and its contents under Florida law?

The law does not apply to property damage.  It applies solely to claims for bodily harm and personal injury.  See, Goldkamp v. Rose, 386 So.2d 1257 (1980). 

In other words, accident victims have the right to have all their property damages covered by those whose negligence caused the crash. There is no “threshold requirement” placed on property claims in a Florida car crash.  Faulkner v. Allstate Ins. Co., 367 So.2d 214 (1979).

Evidence of Permanent Injury

How do you prove a “permanent injury” so your non-economic damages (pain and suffering; mental anguish; inconvenience) are covered?

Florida’s car accident compensation law requires evidence of (1) objective medical findings or (2) subjective complaints supported by expert medical testimony.  Mattek v. White, 695 So. 2d 942 (Fla. Dist. Ct. App. 1997).

Some cases are easier than others to demonstrate permanent injury.  Sometimes, you need to hear an expert’s opinion or the the doctor’s belief that the injury is permanent because the injury itself isn’t obviously permanent.  For instance, the loss of a limb is obviously a permanent injury.  The loss of feeling in a limb may be permanent but is not so obvious to an observer (like the jury).

Watch: What is the legal definition of a permanent injury in Florida?

Evidence of Serious Non-permanent Injuries

Accident victims often suffer horribly from things like migraines and involuntary muscle spasms or shakes.  These are things that can be life-altering and debilitating, but are they covered?  After all, they may not be permanent injuries.  So, can a victim suffering from a serious but non-permanent injury recover compensation under Florida’s car accident law?

To prevail with one of these claims, a victim must provide specific evidence supporting their claim.

  1. Headaches and Muscle Spasms

For instance, in one Florida case an accident victim testified to experiencing pain and soreness, headaches, and discomfort not only during the first three months after the accident happened but long afterwards. In fact, some 3 and ½ years later, the victim still had to deal with them.

As a result, the accident victim’s life was compromised.  There were certain things that weren’t an option in activity and lifestyle because of these headaches and spasms.

Result?  The court held that the victim’s testimony was sufficient evidence to prove her right to seek damages under Florida Car Accident Compensation Law.   Mighty Nat’l Exterminators, Inc. v. Powers, 434 So.2d 361 (Fla. Dist. Ct. App. 1983)

  1. Leg Pain

In another Florida automobile accident case, doctors took the stand and testified that the accident victim felt serious leg pain if he lifted his leg above a certain level.  This continued to occur almost three months after the crash.

The doctors’ opinion was that the leg pain was not due to injury to his leg, but to his spine.  The pain was from back strain suffered in the accident.

Was it covered?  Yes.  The court held that the medical opinion was sufficient evidence to prove a serious, non-permanent injury with a material degree of bearing on his ability to resume his normal activity and lifestyle. Snowden v. Sprouse, 375 So. 2d 901 (Fla. Dist. Ct. App. 1979).

Watch: Is permanent pain considered a permanent injury in Florida?

Admissibility of Evidence

Obviously, the key to overcoming the hurdle of Florida’s car accident compensation law is to gather admissible evidence to demonstrate the right to be compensated.  Not all evidence will work here.

For instance, a medical opinion may need to be provided by a treating physician.  That’s because the doctor who actually sees the patient during the course of his or her treatment and recovery will know much more than a physician who reviews paper records and looks at X-Rays.

Even doctors themselves will acknowledge the superior knowledge of a treating physician on what is, and is not, a permanent injury.  Powell v. Napolitano, 578 So. 2d 747 (Fla. Dist. Ct. App. 1991).

What about licensed chiropractors?  Their opinions are respected in Florida courts on whether or not an accident victim has suffered permanent injuries.  See, Horowitz v. American Motorist Ins. Co., 343 So. 2d 1305 (Fla. Dist. Ct. App. 1977).

Damages

The key issue under Florida’s car accident compensation law is what damages will be covered after an auto accident in Florida.  Our state law limits coverage of non-economic damages.

For details on the different kinds of damages in an accident claim, read our posts:

Our No-Fault Law excludes all tort damages to the extent that personal injury protection (PIP) benefits are payable in the first instance, then allows non-economic damages only if the permanency threshold is met.  Smiley v. Nelson, 805 So. 2d 870 (Fla. Dist. Ct. App. 2001).

To get covered for non-economic damages, the accident victim must meet certain criteria under the law. Things like past or future disability, physical impairment, or loss of capacity for the enjoyment of life, are not available until the accident victim proves they should be covered under the language of the law. Smiley v. Nelson, 805 So. 2d 870 (Fla. Dist. Ct. App. 2001).

There are other considerations here as well.  For instance, the percentage of the motorist’s comparable negligence will be subtracted from the total economic damages found by the jury.  This is done before subtracting personal injury protection (PIP) benefits. Assi v. Florida. Auto Auction Of Orlando, 717 So. 2d 588 (Fla. Dist. Ct. App. 1998). 

Additionally, future medical expenses and lost earnings can be recovered even if the accident victim did not suffer permanent injury.  Smey v. Williams, 608 So. 2d 886 (Fla. Dist. Ct. App. 1992).

Punitive Damages

In Florida, juries are allowed to, but rarely do, assess damages over and above what the accident victim has proven in evidence, or even what the accident victim has suffered regardless of proof.

These damages are called “punitive damages.”  They are allowed as “punishment” in some kinds of car accident cases.

Here, a jury simply determines an amount to award as punishment for the wrongdoer’s behavior.

The goal and hope of punitive damages is not only to punish particularly loathsome conduct of that defendant, but to provide an example to others.  It is done in the public interest.

Punitive damages are allowed under Florida’s car accident compensation law but they are rarely awarded.  A victim would have to show the wrongdoer was wanton or willfully negligent, reckless or acted intentionally or with utter disregard of the consequences.  For example, traveling at an excessive rate of speed, driving while intoxicated or driving impaired (maybe, while texting and driving).  And, most insurance company will probably not cover the wrongdoer for punitive damages. Meaning, the victim will likely have to collect any punitive damage award directly from the wrongdoer and not from their insurance company.

Further, punitive damages can be awarded in Florida even though we are a “No Fault” state.  And, punitive damages are available in a car accident case even if the accident victim fails to provide sufficient evidence to overcome the “threshold requirement” for his non-economic losses.  Nales v. State Farm Mut. Auto. Ins. Co., 398 So. 2d 455 (Fla. Dist. Ct. App. 1981).

What Should You Do?

Knowing the complexities of Florida’s car accident compensation law and how it can apply in a particular circumstance can be invaluable to a victim who is already having to deal with so many difficulties.

If you or a loved one has been injured in a car accident in Florida or would like to learn more about the car accident compensation law, 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 with these claims, 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.

Related:

What does your insurance company have to do once you tell them you were in a car accident?

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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How does waiting to see a doctor impact your Florida car accident claim?

Posted By on November 15, 2016

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: How does waiting to see a doctor impact your Florida car accident claim?

A: Waiting to see a doctor in a Florida car accident claim can have some effect on the amount of a settlement in a case. It’s best if you feel pain or discomfort at the scene of an accident to go to the emergency room so your complaints can be lodged at least on a medical record. However, many people feel pain at the scene of an incident or don’t feel pain for a couple of days and decide to give it a chance to see if the condition will disappear in a few. That’s understandable. Many times an insurance company will use that against you and say well if the injury wasn’t so bad at the beginning, or in fact if the person didn’t feel any pain at the beginning, well yes perhaps a few days later a sprain or a strain arose but that it couldn’t possibly be a lifelong, permanent condition. That’s why waiting to see a doctor sometimes will affect an insurance company’s view of how significant the injury you sustained is.

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 are examples of loss of enjoyment of life that you can recover damages for in a personal injury lawsuit?

Posted By on November 8, 2016

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 are examples of loss of enjoyment of life that you can recover damages for in a personal injury lawsuit?

A: Examples of loss of enjoyment of life resulting from an injury that you’ve sustained in an accident, there are too many to list. What we see in most court cases is that an injury has caused the person to completely eliminate certain activities that they enjoyed doing before the accident, or partly eliminated the capability to do those activities, or eliminated the ability to do those activities as well. Someone sustains a serious injury, let’s say a knee injury and loved playing tennis and other sports and because of the injury either no longer plays tennis or plays tennis at a much lower level, that’s loss of enjoyment of life.

    We’re all here probably only once in this world and we all enjoy certain activities. It’s how a particular injury has affected your ability to do those things that you enjoyed, whether it’s cooking, whether it’s playing any type of game that you can no longer play or do as well, whether it’s yard work. Many times people come in and say, “because of my back or knee condition I can’t work in my yard as well as I did beforehand, or as much as I did beforehand.” The jury assesses the value of that and has to put a monetary value of that. Those are some of the examples of loss of capacity for the enjoyment of life.

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 Defamation of Character Lawsuits

Posted By on November 3, 2016

Sometimes getting justice in Florida for defamation (libel or slander) means having to file a lawsuit to recover compensation for your injuries.

However, not every wrongful statement (spoken or written) warrants the filing of a lawsuit (these cases can be expensive and, even if you win your case, you may not be able to recover from the wrongdoer). So, how do you know if you have a case worth pursuing and what are some of the issues that you will face during a defamation lawsuit?

Preliminary Issues before Filing a Defamation Lawsuit

Before anyone takes that the step to file a defamation lawsuit, two issues need to be considered.  Can they meet the elements needed to prove a libel or slander claim?  Is there evidence to support a damages claim?

Liability

First, a victim needs to analyze and confirm there is evidence to support a defamation of character claim under Florida law.  This includes understanding possible arguments that the defendant may assert to avoid liability.

Specific legal “elements” must be proven to establish libel or slander.   They are:

  1. the defendant published a false statement;
  2. about the plaintiff;
  3. to a third party; and
  4. the falsity of the statement caused injury to the plaintiff.

See, Border Collie Rescue v. Ryan, 418 F.Supp.2d 1330, 1348 (M.D.Fla. 2006).

Notice a victim needs to be able to show or prove specific things like how the statement was published (was it in social media? as gossip at work?) and who heard it.  In order for there to be defamation, at least one third party has to have been exposed to the defamatory statements.

For more on the different kinds of defamation of character claims in Florida, read our earlier posts:

Damages

Next, a victim should evaluate how easy, or how difficult, it will be to prove their damages.  While some types of damages do not need evidence which assigns an actual dollar value to the injury in a libel or slander lawsuit, some evidence of harm will be needed to prove other types of damages (like a loss of something that has economic value).

For more on Defamation of Character Damages under Florida law, read our prior posts:

 

Poster - Libeled Lady 01

Movie stars are celebrities who will be considered “public plaintiffs” under Florida defamation law.


 

Filing the Defamation Lawsuit and Going through Discovery

Once you and/or your lawyer determine that you have a case, and that you can prove both liability and damages, the next step is to file your lawsuit.  In Florida, defamation cases are filed in our civil courts as personal injury cases.

Issues related to filing a defamation lawsuit include:

  • Jurisdiction and Choice of Law – location of the court to file the lawsuit and should State or Federal Law apply
  • Obtaining Jurisdiction over the Defendant
  • Forum Non Convenience and Motions for Change of Venue
  • Actions Against the State, Municipality or other governmental agency

Once your lawsuit is filed, it follows the standard procedures for any personal injury case.  You serve the defendant with the lawsuit.  You wait for the defendant to file his or her response (called the “answer”).

Then you begin the “discovery process” with each side serving the other with formal requests for documents, request for admissions, and interrogatories.  Depositions, with document requests and without, are taken too.

For more on depositions, see, What Happens in a Deposition for a Personal Injury Case?

Issues related to discovery in a defamation lawsuit include:

  • Confidentiality of News Sources, which includes video and audio tapes
  • Anonymous Internet Authors and Other Authors – popular sites like Facebook, Instagram & Twitter don’t make it easy to discover the identity of a user without specific information being provided
  • Statutory Protections and other protections

Defamation Defenses: Privilege, Immunity, Affirmative Defenses and Preemption

Perhaps the biggest part of discovery for the defamation plaintiff is determining the arguments that the defendant has to avoid responsibility.  These can include privilege, immunity, preemption and affirmative defenses.

The plaintiff may learn of these arguments and how strong or weak they may be under the law during the discovery process (or in their answer).

When a defendant is asked a question in a request for admission, in a request for production of documents, or in deposition questioning, he or she must answer truthfully and that is where he or she may also reveal his or her defenses.

Failure to Prove Defamation

The first defense for any defendant is that the plaintiff has not met his or her burden of proof.  Before the defendant presents his or her own arguments, he or she will try and challenge your case and show the court that you have failed to make your “prima facie” case.

Truth as a Defense

Key to a defamation claim is that the statement in question is false.  The defendant may argue that this has not been proven because the statement was true.

Truth as a defense to defamation claims was established several years ago by the United States Supreme Court in the landmark case of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964).

Limitations Has Passed

You have a time limit to file your lawsuit. Florida law establishes a two year time frame to get your lawsuit filed at the courthouse.  This is the Florida two (2) year statute of limitations for defamation found in Florida Statute 95.11.

If you have filed your case after the deadline, then it will be barred as a matter of law.

Here, the calendar will control.  Did you file your lawsuit within two years (730 days) of the date the statement was first made?  There may be a controversy on when the statement was initially made, especially if it involves slander.

Affirmative Defenses

The defense can also challenge how you view your evidence.  The defendant may challenge the evidence you have presented with the following arguments, or affirmative defenses such as:

  • The statement was an opinion; it was not presented as a fact.  Opinions are not defamatory.
  • The plaintiff’s reputation is so dismal that the statement could not have harmed it or made it worse.  Some people are considered “libel-proof.”   An example of a “libel-proof” plaintiff was found by a New York court to be a convicted felon who unsuccessfully sued for defamation, claiming that the character “Paulie” in the movie Donnie Brasco was based on his life and harmed his reputation.  For details on this story, read the coverage provided by the Reporters’ Committee for Freedom of the Press here.

Privilege and Immunity

Even if you can prove defamation, there are some defendants who are protected by law because of their position (known as an absolute privilege or immunity).  So, regardless of your proof of a false statement and the resulting harm, they will not be held liable for your damages.  They are immune from being held liable or they are protected by a legal privilege.

Examples of these kinds of legal barriers to liability for defamatory statements include:

  • Statements made in court or judicial proceedings (divorce proceedings);
  • Statements made in legislative proceedings;
  • Witnesses and Investigators
  • Jurors
  • Statements made between husband and wife.

The Florida Anti-SLAPP Act

In Florida, legislation has been passed to protect some defendants against defamation lawsuits.  Other states have passed similar laws, called “anti-SLAPP” statutes.

SLAPP stands for “strategic lawsuits against public participation.”  Florida has passed laws that fight against these kinds of lawsuits.

This is a specific defense provided by Florida lawmakers to defendants who are sued for libel or slander. You can read Florida’s Anti-SLAPP Act in Florida Statute 768.295.

For details on how Florida’s Anti-SLAPP Act works, read our 2013 post, “Florida Anti-SLAPP Act: Libel and Slander Lawsuit Defense Provided by State Law to People Sued for Defamation.”

Today, this law is an even bigger tool for a defendant who has been sued for defamation here in Florida.  Our post was written in 2013.  In 2015, the Florida Legislature amended the law to make it provide even more protection.

Under the amendment, courts have the ability to dismiss cases very early in the proceedings if the defendant can prove that the lawsuit has been filed as a means to pressure or intimidate someone’s statements on public matters.

The 2015 amendment expands the speech that is protected by the Florida SLAPP Act.  It also provides the SLAPP laws do apply to private plaintiff lawsuits.

Judge and Jury

There will be many opportunities to negotiate and settle your defamation case.  Settlement talks might begin before you even file the lawsuit.

In Florida, personal injury cases are usually required to go through a court-ordered mediation, which will involve a third-party mediator working to get the case settled before trial.

However, if you fail to resolve the dispute before the trial, then a jury will be empaneled and your case will be tried.  There will be opening statements by both sides, evidence will be placed in the record by your attorney and defense counsel, and then the judge will instruct the jury on the law (related to issues like damages, including the types that can be awarded – the lawyers normally try to agree on the instructions – if not, the judge has the discretion to decide on the instructions).

Jury deliberations will occur, and they will come back with their jury verdict.  When you win, the defendant may move forward with an appeal of the case if his lawyers feel there are legal issues and matters of law worthy of appellate court review.

Appeal and Execution on the Judgment

Appeals must be based upon valid questions on whether or not legal errors happened during the case.  Just being unhappy with the verdict, or thinking the result is unfair, is not enough to appeal a case in Florida.

Once the case is final, then you and your attorney can work on execution of the judgment in order to obtain payment of the damages award.  The judgment is used to execute on assets owned by the defendant that are non-exempt (homesteads are not available for execution, for example).

The defendant will likely be sent a form titled “Fact Information Sheet“, form 1.977 found in the Florida Rules of Civil Procedure, where the defendant is required to disclose the nature and value of their assets.  One important question here is whether or not the defendant has insurance to cover for defamation claims (the plaintiff will know this answer early on in the case as the insurance company will likely provide a defense (a lawyer) to the defendant).

Can You Sue for Defamation of Character?

In Florida, most of us know that a person harmed by libel or slander  has the right recover their damages from the person who made the defamatory statements.   However, most victims are not aware of how the legal process works with these lawsuits.  The most common questions include:

  • Do the facts support a defamation claim?
  • What kind of damages can I recover?
  • What defenses are available to the defendant?
  • What happens at a defamation trial?

Every defamation case is different, both in proving liability and gathering evidence (Was the defamation made anonymously on social media? If so, how do you discover who made the statements? Will Facebook cooperate in identifying the party who made the statement? Will Facebook turn over a post that was made months ago but has been since deleted?).

If you believe you have a claim for defamation and believe a lawsuit is needed to collect compensation, a good piece of advice is to speak with an experienced Florida defamation 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 Chat with Alan in the comments below, at info@hallandalelaw.com, or (954) 458-8655. If you have a specific or personal situation, please call or email Alan because he can’t answer specific fact questions in general comments.
 
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When aren’t you able to recover lost wages in a car accident or slip and fall case?

Posted By on November 1, 2016

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: When aren’t you able to recover lost wages in a car accident or slip and fall case?

A: You are not able to recover lost wages in a car accident case or a slip and fall case in Florida if in fact you did not miss time from work and do not expect to miss time from work. But more importantly to answer that question, there are many instances where people actually do sustain significant lost wages but have jobs such that they are in a cash business and do not report all or part of their income. In those cases, a Florida Bar board certified civil trial attorney will normally or should tell that plaintiff not to proceed with a lost wage claim, because the person would be subjecting themselves to criminal prosecution by saying, “I lost $60,000 in wages,” but only show $10,000 in income because of non-reporting of most of that income.

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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How do you determine pain and suffering damages for back pain caused by a slip and fall?

Posted By on October 25, 2016

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: How do you determine pain and suffering damages for back pain caused by a slip and fall?

A: You determine pain and suffering for a back injury in a Florida slip and fall case by a multiple of factors. The first manner would be whether or not you have had a preexisting condition. Whether you have gone to the doctor at any time in your life before the slip and fall accident for treatment to your back, whether it was from another accident or whether it was just something you had waking up one morning. Other factors in determining back pain and pain and suffering in slip and fall cases are the extent to which, in fact, the back pain limits your ability to lead a normal life. How is your life restricted as a result of the back pain? Are you able to work as you did beforehand? Are you able to enjoy your life’s activities such as sports or other hobbies that you may have? Are you able to run and job as you did before the incident?

    These are some of the factors that are used to determine pain and suffering damages for back injuries in a Florida slip and fall case.

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 Defamation of Character Claims

Posted By on October 20, 2016

What is Defamation in Florida?

Defamation can be in two forms. The first is libel, which is where someone seriously injures or tarnishes your reputation in writing. The second is slander, which is where someone uses spoken words to harm another person.

Together, “libel” and “slander” make-up what is commonly known as defamation of character. And, committing one of these acts in Florida can be the basis of a civil lawsuit for damages.

Meaning, someone can sue for defamation of character in a Florida court and force a bad actor to compensate the victim for the harm they have caused.
 
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What Are The Elements Of A Florida Defamation Of Character Claim?

To prove defamation of character in Florida, a victim must provide admissible evidence of four elements (these elements apply to both libel and slander claims).

The four elements are:

1. the defendant published a false statement;
2. the statement is about the plaintiff;
3. the statement is made to a third party; and
4. the falsity of the statement caused injury to the plaintiff.

See – Bass v. Rivera, 826 So.2d 534, 534 (Fla. 2d DCA 2002); Border Collie Rescue, Inc. v. Ryan, 418 F.Supp.2d 1330, 1348 (M.D.Fla. 2006).

What is Defamation Per Se in Florida?

Sometimes, the evidence needed to prove harm is not a large hurdle to overcome. In these cases, a victim does not have to provide as much evidence to win their case as with other defamation of character claims.

This happens when the slanderous or libelous act is considered to be defamation per se. Here, the courts have found that some defamatory statements are so bad that the law will presume that a victim’s reputation has been harmed; the words are so bad, printed or verbal, that the courts impute that harm has happened.

These are words or statements that inspire hatred, distrust, ridicule, contempt, or disgrace; or they harm your work or profession just by being said. See, O’Neal v. Tribune Company, 176 So. 2d 535 (Fla. Dist. Ct. App. 1965)(and litany of cases cited therein).

For more on defamation per se, read our article Defamation Per Se: When Libel or Slander Is So Bad, Do You Need Evidence of Damages Before Punitive Damages Can Be Awarded?

Public v. Private Figures

One of the first things a victim should consider before filing a defamation lawsuit is whether or not the law will consider the victim to be a public figure or a private figure – not all defamation plaintiffs get the same treatment under Florida’s defamation laws.

Public figures have a higher hurdle to jump before they can be awarded damages in a defamation case. They have to prove “actual malice” in order to win.

Who are public figures? In Florida, celebrities and famous people are public figures. And, Florida courts have also found police officers, prison corrections officers, and hospital administrators to be public figures, too.

Why? Florida law has a broad definition of “public figures”. The Florida Supreme Court looks at more than popularity. If an individual has some kind of discretion or power over members of the public, then it may be argued that he or she is a “public figure” for purposes of proving a defamation of character claim.

For example, in Smith v. Russell, 456 So.2d 462 (Fla. 1984), a police officer was found to be a public figure who had to prove actual malice to win his defamation case as a “…highly visible representative of government authority who has power over citizens and broad discretion in the exercise of that power.”

See, Is it Harder to Sue for Defamation in Florida if You Are a Public Figure?

Actual Malice and Negligence

The reason a defamation of character victim needs to determine if they will be considered a “public figure” or “private figure” under Florida law is because of the evidence burden to prove a claim. If a victim is a private figure, the claim is likely easier to prove.

Private figures can prevail with a claim after providing evidence that the defendant was negligent when they spoke or wrote the defamatory statement. Meaning, the bad actor didn’t bother to check to see if the statements they made were true or false before they made them (something a reasonable and prudent person would do before they made a statement that could harm another person).

Public figures have to go further with their proof. They have to show that the defendant was more than negligent. Public figure plaintiffs have to prove that the defendant acted with “actual malice,” i.e., that they knew the statements were false or they made them with reckless disregard of their falsity.

See,  Defamation Claims In Divorce Proceedings or Between Ex-Spouses – Do You Have a Libel or Slander Lawsuit Against Your Ex?

Criminal Libel Laws

Sometimes, defamation can be a crime under Florida law. In fact, there are Florida criminal statutes that define certain written statements as being illegal, which can be found in Florida Statutes 836.01 – 012. These statutes are narrowly written and only apply in specific situations.

For instance, Florida Statute 836.06 forbids anyone to make any false statements about “… the solvency or financial standing of any banking institution or building and loan association doing business in this state.”

For more, read Florida Criminal Defamation.

Defamation by Implication

Can you ever win a defamation case by arguing that the defamation was implied? Yes, Florida courts recognize the claim of “defamation by implication.”

What is defamation by implication? Unfortunately, in Florida it is not that easy to define.

Here, a defendant says something that is true, but under the circumstances the statement gives a false impression. “Literally true statements can be defamatory where they create a false impression,” explains the Florida Supreme Court as it recognized this cause of action in Jews for Jesus, Inc. v. Rapp, 997 So.2d 1098, 1106 (Fla. 2008).

For an example of a plaintiff who won their case of defamation by implication, read 3 Examples of Florida Defamation Cases Where Plaintiffs Were Victorious.

What Damages Are Recoverable For Defamation of Character?

It may seem difficult to find evidence of your damages after you have been the victim of libel or slander. Unlike a car accident or a slip and fall, you may not have a file folder filled with doctor bills and hospital invoices. Florida law understands that defamation damages may be hard to prove; still, there are ways to do so.

1. Legal Presumption of Damage (Actual or Presumed Damages)

Some kinds of harm from libel or slander are presumed to exist under the law. These are the kinds of things that everyone understands result from defamatory statements being made about you.

Without invoices or other paperwork, Florida juries can award damages for things like humiliation, impairment of reputation and standing in the community, anxiety, embarrassment, etc.

Defamation damages can also include mental suffering and mental anguish.

See: What Damages Are Recoverable In A Defamation of Character Claim?

2. Specific (Special) Damages as Compensation

Other kinds of harm are those than can be documented. Did you lose your job because of the libel? If so, can you document your damages through pay stubs or income tax statements?

These are damages related to an actual pecuniary loss (something having an economic value). And, a plaintiff suing for defamation of character can be awarded economic damages including lost wages or lost employment as long as the claim can be proven up with paperwork or documentation.

Watch: Alan discusses recovering medical expenses related to a defamation claim.

3. Punitive Damages for Defamation

Sometimes, the libel or slander is so shocking and horrible that the law will find it is in the public interest to punish the wrongdoer for their actions. These are called “punitive damages” and they are also available under Florida law.

The Florida Supreme Court has ruledthat punishment damages can be assessed against defendants who defame their victim with malice, or ill will, toward him (or her).

What does the plaintiff have to do here? Provide evidence that the defendant acted with “ill will, hostility, and an intent to harm the plaintiff.”

For more, read Can You Collect Punitive Damages for Defamation of Character?

Privileges and Defenses

Once you have proven your defamation case, the defendant may still be able to avoid responsibility. Under Florida law, there are several privileges and defenses which a defamation defendant can assert.

These include the following:

1. Truth

You’ve probably heard about truth as a defense. If a defendant makes a true statement about a victim, then the victim likely won’t be able to prevail in a claim for libel or slander. This concept was settled by the United States Supreme Court in the landmark case of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) and followed by the Florida Supreme Court in Miami Herald Publ’g Co. v. Ane, 458 So.2d 239 (Fla.1984).

See, Florida Defamation Lawsuits: What are The Defenses to Libel and Slander Claims Seeking Damages Under Florida Law?

2. Opinion

Opinion is also a defense to defamation. The First Amendment allows citizens to speak freely and voice their opinions. This is free speech. If someone calls Joe Smith a “fool” or “stupid” then that’s their opinion. The test? The statement cannot be proven to be true or false. It’s just an opinion, even if does do harm to the victim.

See, Can You Sue for a Bad Review? Libel, Slander, and Defamation Lawsuits for Negative Reviews

3. Comments – Blogs, Social Media and Website Owners

In social media cases, it’s important to note that the Communications Decency Act provides protections for bloggers and web site owners when a third party posts something defamatory on a blog or website. If there is a defamatory comment left on a blog, then the owner or publisher may be able to argue that federal law protects them against liability.

For instance, the online review site Yelp.com has faced several lawsuits seeking defamation damages for bad reviews placed on the site by unhappy customers of various businesses.

Yelp’s defense? It is a publisher and these were the comments of third parties. Under Section 230 of the Communications Decency Act, Yelp was protected from liability. The plaintiff could only seek relief from the individuals who wrote the words in the online reviews, not Yelp as a website host.

Furthermore, Section 230 may also apply to protect social media sites like Facebook, Twitter, Snapchat and Instagram.

For more, see YELP Online Review Site Is Filing Lawsuits For False Reviews – What About Defamation (Libel) Claims Based on Yelp Reviews?

Statute of Limitations

How long does a victim of defamation of character have to file a lawsuit for the damages they have suffered from libel or slander? Not long! The Florida legislature has defined a time limit for anyone wanting to sue for defamation.

Under Florida Statute 95.11(4)(g), cases based upon libel or slander must be filed within two (2) years of the publication.

Also, a libel victim needs to be careful to meet the “single publication rule” of Florida Statute 770.07. There, the time deadline begins to run “…at the time of the first publication or exhibition or utterance thereof in this state.”

Does this include something published online? According to one Florida Court of Appeals, the answer is yes. See, Rudloe v. Karl, 899 So. 2d 1161 (Fla. Dist. Ct. App. 2005).

The bottom line here is don’t procrastinate if you think you have a defamation of character claim. The statute of limitation law is an absolute bar, no matter how seriously your reputation has been injured.

What Should You Do?

If you have been harmed by libel or slander then you may have a legal claim for damages against those who made the defamatory statements.

Under Florida law, each defamation of character case is different.  Each bad act has to be evaluated not only on what was said or written, and where, and about whom the statements were made, but also in terms of damages.  What damages can be presumed under the law?  What damages must be proven with documented evidence?  Are the damages larger enough to justify the time and expense of a lawsuit?  Can the victim collect a judgment from the defendant?  Does the defendant have assets? Does the wrongdoer have insurance?  Is the wrongdoer asset protected?

If you believe you have a claim for defamation, a good piece of advice is to speak with an experienced Florida defamation 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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If I win my slip and fall claim at trial does the other side have to pay my attorney fee?

Posted By on October 18, 2016

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: If I win my slip and fall claim at trial does the other side have to pay my attorney fee?

A: If you win your slip and fall case at trial, ordinarily the other side, the business establishment or it’s insurance company, does not have to pay your attorney’s fee. There is a limited exception where if in during the course of the lawsuit you have offered to settle the case for let’s say $60,000 and your lawyer has sent that offer over to the other side pursuant to a Florida statute and a Florida rule of procedure. If the business establishment rejects your proposal to settle and if you go to court and obtain a verdict from a jury which exceeds 25% higher than the amount you would have settled for, which in this case would have been %75,000 with a $60,000 offer. You go to court with an offer to settle for $60,000 and the jury gives you $100,000, then most likely the other side will have to pay your attorney’s fees from the date that you made the offer on.

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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