Posted By Alan Sackrin on November 17, 2016
Living in Florida, it is important to be aware of how no fault insurance works and the injury requirements for recovering compensation for a car accident. Unfortunately, these requirements make Florida’s car accident compensation law different than most other states when it comes to victims being able to recover damages for their injuries.
Are All Injuries Recoverable in a Florida Car 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 car accident injuries should NOT be recoverable unless they are significant – a term specifically used in the law.
This requirement is important to know especially for those who are trying to settle a claim with an insurance adjuster without the use of a personal injury lawyer.
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 such as pain and suffering, mental anguish, etc. (This article is discussing non-economic and not economic damages such as lost wages.)
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 (or the at-fault party) has an insurance contract in place.
In any car accident case, the first issue to address is fault. In order to receive compensation, a victim must first prove that someone else’s negligence caused the car accident. Determining fault can be done through:
- accident reports;
- witness statements by passengers in either vehicle;
- medical records establishing injuries and treatment;
- vehicle data recorder; and
- video (red-light camera.)
In Florida, drivers have a legal duty of care to other motorists on the road. If a motorist was texting and driving and caused a rear-end collision, he or she breached this duty. It is only after a victim proves a driver has breached his or her duty of care (or proves the driver was negligent,) that a victim can recover his or her damages.
Other ways a driver can breach their duty of care include:
- failing to pay attention to the road and look out for hazards;
- failing to maintain control of the vehicle;
- failing to yield the right of way;
- failing to use turn signal(s); and
- failing to follow at a safe distance.
What Are The Threshold Requirements to Receive Compensation?
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) .
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).
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.
- 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.
Due to the drivers negligence, 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.
What was the 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)
- 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).
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).
Other Issues to Consider
The key issue under Florida’s car accident compensation law is what the threshold requirements to recover non-economic damages are. In addition to those threshold requirements, there are other issues to be aware of, including:
1. 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).
2. 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).
3. 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).
4. 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).
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). Most insurance companies 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.
Furthermore, 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.
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.