Seek Immediate Medical Treatment After an Accident

PIP (personal injury protection) insurance benefits is required to be purchased by everyone who owns a vehicle in the state of Florida. The law requires that at a minimum, $10,000 of benefits be purchased in PIP coverage. PIP is a first-party medical coverage and will help cover your medical expenses, lost wages, and even can be used to reimburse you for things like lawn care, housekeeping and other things losses that result from an accident no matter who is at fault for the accident.

These benefits are not without limitation.  If you do not seek medical attention right away for your injuries, you risk getting disqualified for receiving these benefits.   After an accident, people who have no visible injuries tend to make a decision to forgo going to the emergency room. Even when soreness begins to set in, many people put off going to the doctor and assume the pain will get better on its own. Injury and soreness to the neck or back rarely resolves itself without some sort of therapeutic medical treatment.  The decision to forego immediate medical attention can have significant consequences.  Under current Florida law, you are only entitled to PIP medical benefits “if the individual receives initial services and care…within 14 days after the motor vehicle accident.” Fla. Stat. Ann. § 627.736(1)(a).

Another nuance to the Florida PIP statute is that in order to collect the full $10,000.00 benefit, a medical provider must determine that you have what’s called an “emergency medical condition” (EMC).  An EMC is described as a condition where the lack of immediate medical treatment may put the patient’s health in serious jeopardy.  According the statutes, only certain medical providers can declare an emergency medical condition.  Providers such as physicians, osteopathic physicians, dentists, physician’s assistants and advanced registered nurses can declare an EMC. Chiropractors are not listed and cannot declare an EMC. If you seek treatment within fourteen days of your car accident but do not obtain an EMC, your coverage may be limited to $2,500.00 pursuant to the dictates of the statue.

If you are in an accident and believe at any point in the future you may need to be treated for injuries, you must seek treatment within fourteen days of the accident and should seek treatment from a medical provider who can declare an EMC and qualify you for all of the benefits that you pay for with your insurance premium.  As a matter of best practice, it is a good idea to get checked out by a physician after any accident to rule out any type of life threatening medical conditions. 

If you have any questions about the complexities of the PIP statute, our lawyers will be happy to provide a free consultation and address any concerns you may have regarding these important benefits you have available to you.  

Florida Personal Injury Protection (PIP)

Everyone who owns a motor vehicle has it, but most people don’t know what PIP is or how it can help you after they have been in a car accident. PIP stands for Personal Injury Protection and is required to be carried by everyone who owns a vehicle in the state of Florida. The law requires that each person maintain a minimum $10,000 PIP coverage.  PIP is a first-party insurance coverage and will help cover your medical expenses, lost wages, and even can be used to reimburse for things like lawn care and housekeeping that are required as a result of your accident.

 Fla.Stat. 627.736 requires that the insurance company provide personal injury protection coverage to all insureds insured in the amount of $10,000. This coverage generally will pay up to 80% of all medically necessary treatment due to the accident. The treatment can include surgery, X-rays, dental procedures, rehabilitative treatment and more. PIP also covers 60% of loss wages that were suffered by the accident. This could include immediate time off due to the accident or time off at later dates for doctor appointments or surgery.

Many people do not know that PIP coverage can help pay for household services that you are no longer capable of doing because of the accident. For example, if you are responsible for your own lawn maintenance and are temporarily or permanently unable to continue this chore on your own, you can be partially reimbursed for the hiring of a lawn service.

Finally, PIP is allowed to pay $5,000 in death benefits if you or a loved one were to be in a fatal car accident or sustain injuries that lead to someone passing away. Obviously there is no amount of money that can comfort you when you have lost a loved one, but people need to understand this benefit is available to relieve some of the financial pressures after the death of a loved one.

         

PIP benefits may be available to more than just the named insured. PIP may extend to household relatives, a friend borrowing your car, passengers, or maybe even someone that was hit by a car walking down the street. Who qualifies for coverage can be difficult to determine sometimes on your own and we would suggest that you contact a personal injury lawyer to discuss questions of coverage.

PIP benefits are here to help you begin to restore your life to the way it was before an accident. You pay for this coverage so do not miss out on the benefits that you are entitled to receive.

Fabre (non-party) Defendants and Trial Procedure

Trial strategy is an important part of the preparation of any claim or claims to be tried before a jury.  Both Plaintiff’s attorneys and Defense attorneys must evaluate their case and determine the best possible way to present evidence to a jury so that it is understood and it creates the best chance of success for the client.  The developing of an effective trial strategy is one of the most important considerations in hiring a trial attorney. 

All trial attorneys are trained in the rules of evidence and trial procedure.  Part of developing an effective trial strategy is the lawyer’s effective use of the rules of evidence and trial procedure.  However, sometimes a trial attorney tries to trap the opposing attorney in the minutia of trial procedure to such a degree that it could be considered “gaming the system.”

Rules governing the use of non-party defendants are particularly complex and sometimes ripe for gamesmanship that denies one side fair access to the judicial system.  A non-party defendant is a person or entity that a Defendant claims may be entirely or partially responsible for damages claimed by a Plaintiff in a civil case.   Fabre v. Marin, 623 So.2d 1182, 1185 (Fla.1993).  This principle is important because a Defendant may avoid financial responsibility for damages if a jury determines a non-party defendant is at fault for the damages claimed by the Plaintiff. 

Complications arise when a Plaintiff is damaged by multiple persons or entities.  The Plaintiff must sue or make claims against all persons or entities who may be responsible and during the course of settlement negotiations, some of the defendants may enter into settlement agreements with the Plaintiff and thus will be dismissed from the lawsuit.  Depending on the circumstances, a Defendant may ask the Court to allow the jury to consider the negligence of a settled Defendant in apportioning the fault of the non-settled Defendant. 

So what happens when a Plaintiff settles against potential Defendant’s and the remaining Defendant asks the Court to have the jury consider the negligence of the settled Defendant’s?  All manner of gamesmanship options can arise for the Defendant.  This is the scenario that the Second District Court of Appeal considered in a recent case.  Edwards v. Rosen, 41 Fla. Law Weekly D295 (Fla. 2nd DCA January 29, 2016).

In the Edwards case, the Plaintiff settled with multiple Defendants prior to trial.  At the start of trial, the remaining Defendant sought to add some of the settled Defendants as non-party Defendants.  The Court allowed the last minute addition and the Plaintiff was forced to adjust its trial strategy to address the arguments associated with the non-party Defendant’s.  However, at the end of the trial, the Defense attorney withdrew his non-party defendant request, which meant that the jury was no longer going to consider any non-party Defendant. 

The Plaintiff had expending much of his trial strategy addressing the Defense arguments that were no longer going to be considered by the jury, instead of addressing the negligence of the Defendant that remained in the case.  The Defense attorney used procedure to force the Plaintiff to argue against one theory, and then at the last minute was able to convince the trial judge to change the theory presented to the jury. 

The District Court of Appeal was not fond of the Defendant’s trial strategy of essentially baiting the Plaintiff’s attorney to argue one way, then requesting something different after the trial was concluded.  The Court ruled that the trial Court abused its discretion allowing the Defense attorney to game the procedure and system as he did.  As a result, the Plaintiff was granted a new trial where he could present his case without being prejudiced by the gamesmanship by a Defense attorney taking advantage of the Rules of Civil Procedure.   

Exclusions, Exclusions, Exclusions!!!!!!!!

Many folks purchase insurance policies and assume they are protected from all manner of legal consequences if their actions inadvertently cause injury to another person.  Many times, you would be right to assume this.  For example, if a person is not necessarily paying attention to the road while they are driving and accidentally rear ends another person, the at-fault party’s liability insurance would protect the at fault driver in the even that he or she was sued. 

However, many insurance policies contain exclusions.  An exclusion in an act that if occurs, will not be covered by the insurance policy.   If an event happens that could potentially fall within an exclusion of an insurance policy, then the insurance company will not pay out money on any claim and it will leave the insured exposed to personal liability for which he or she will be responsible for. 

Some common exclusions in insurance policies in Florida include, Acts of God, Intentional Acts, Criminal Acts exclusions, non-owned vehicle exclusion, workers compensation exclusion, and resident relative exclusion.

Insurance companies write policies and issue exclusions to protect their own financial interests.  However, if an insurance company tells you that and event is an excluded event, you need to have someone look at the claim more closely.  Some acts that cause financial damage or personal injury seem to be excluded under insurance policies but after a closer look, may actually be the exact type of incident that the insurance policy was meant to protect against.  The line between a covered act and an excluded act can often times be very thin. 

If you are involved in any incident where you may have a claim against an insurance company, please consult a lawyer prior to accepting the insurance company’s response that an event is an excluded event.  As a consumer and a person who has potentially been harmed by an event that was not your fault, it is important to make sure your rights are protected.  Don’t let an insurance company tell you that your accident, injury, or damage is not covered by an insurance policy. 

Sovereign Immunity and the Power of the Government

“The King can do no wrong.”  That is the thinking behind the concept of Sovereign Immunity and how it applies to the Government in Florida.  This entry will focus on Sovereign Immunity as it applies to people who are injured due to the negligence of the Government.  Generally speaking, the State of Florida cannot be sued for its wrongdoing.  For limited circumstances, the State has waived Sovereign Immunity for its own negligence if it injures somebody and that waiver can be found at Fla. Stat. 768.28.

The law states that if the government injuries someone due to its negligence, it will be responsible for damages up to $200,000.00 per person and $300,000.00 per incident.  Think of the damage limits as if it were policy limits on an insurance policy.  Obviously, many injuries caused by the government’s negligence would be sufficiently covered by the limits.  However, issues arise if the government is negligent and causes a catastrophic injury. 

 If damages from an injury exceed the above mentioned limits, a claimant must receive a final judgment pursuant to a verdict in order to collect the full amount of the damages.  Once the judgment is obtained, the statute requires the claimant obtain a “claims bill” from the legislature in order to receive the money proceeds in excess of the limits mentioned above. 

The “claims bill” process is extremely difficult and complex.  The claimant must find a state legislator to sponsor a bill, introduce it to committee, and the bill must proceed through the State Legislature similar to any other new law.  If the claims bill passes both the Florida House and Senate, it must then be signed into law by the Governor. 

The process is extremely time consuming and requires thousands of attorney hours in order to procure.  However, the biggest problem with attempting to obtain a large verdict against the government is that the government can dictate exactly how much the attorney for the claimant receives. 

In   Searcy Denney ScarolaBarnhart & Shipley v. State, 40 Fla. Law Weekly D1647 (Fla. 4thDist. Ct. App. July 15, 2015), the claimant’s attorney represented a family whose baby suffered a catastrophic brain injury as the result of the negligence of a government hospital.  The jury returned a verdict against the government for approximately 30 million dollars.  A Claims Bill was introduced to the legislature and a claims bill was eventually passed authorizing the state to make a payment of 10 million dollars to the family for their damages. 

Based on the percentage of recovery, the claimants law firm should have been entitled to recover 2.5 million dollars in fees in addition to reimbursement for the nearly $500,000.00 advanced by the law firm to pursue the claim.  However, the claims bill specifically limited the total amount payable to the claimant’s law firm to be $100,000.00. 

The law firm presented evidence that over the course of several years, it had expended approximately 7000 attorney hours and approximately $500,000.00 in advanced litigation expenses.  The Court specifically ruled that the legislature had the authority to limit the attorney’s fees.  So, the law firm that had put in the work and earned over 2.5 million in attorney’s fees and spent $500,000.00 was only compensated $100,000.00 for the entirety of its work. 

The effect of this ruling will likely be that in the future, when the government causes catastrophic injuries based on its negligence, it will be very difficult for the injured party to find an attorney willing to take the case because of the time and money that will need to be spent and the great likelihood that the State will significantly limit the law firm’s compensation.  This is an example of how the Government can write and enforce laws to keep injured persons from being represented by competent counsel.   

Faded Memories and Sworn Testimony

In Personal Injury cases when the insurance company denies the claim, the injured party always has the option to file a lawsuit against the person or company that injured her.  A problem sometimes arises when an injured person chooses to file a lawsuit.  Often times, the commencement of the lawsuit does not happen until at least a year after the accident that caused the injury.  The reasons for the delay can be attributable to a number of factors including the nature of the injury, willingness of the insurance company to negotiate the claim, and a complete and accurate calculation of the full measure of the injured persons damages. 

During the time before the commencement of a lawsuit, memories of the fine details of the events leading to the injury may change or become less clear.  This makes sense of course because all of our memories fade over time.  However, during the course of your lawsuit, you will be asked very specific questions under oath about the fine details of the events leading to your injury.  Often times when an injured person is faced with these very specific questions, they will make assumptions about what they believe the answer to be.  Of course, the assumptions may be made with faded memories and could potentially cause the injured person to give inconsistent or inaccurate testimony. 

It is important to understand that when this happens, it often happens as the result of fading memories and bad assumptions and perceptions of events that took place over a year earlier.  This is not typically the result of an injured person being dishonest. 

Recently, the Second District Court of Appeal addressed this very scenario in Grover v. Karl, 164 So. 3d 1285 (Fla. Dist. Ct. App. 2d Dist.2015).  In this case, the injured party testified in her deposition to facts that were different from the facts that she alleged in her original complaint.  The Court acknowledged that sometimes memories fade and can be different from time to time.  The Court ruled that even if her memories of events were different from her original complaint, she should be given the opportunity to amend her complaint and present the evidence as she recalls unless it clearly appears that (a) allowing the amendment would prejudice the opposing party, (b) the privilege to amend has been abused, or (c) amendment would be futile.

Regardless of the Court’s ruling, the best course of action for an injured person is to always discuss with your lawyer your memory of the fine details of your accident prior to filing a lawsuit or giving sworn testimony.  This ensures that any faded memories you have will not turn into false assumptions during your testimony. 

Florida Statue of Limitations

You may have heard of the term “Statute of Limitations.”  This term is commonly used to refer to a law that tells you how long you have to file a lawsuit against a person who has wronged you.  In Florida, if you have been injured as the result of another’s negligence, you have four years to file a lawsuit against the person who injured you.  The Statute of Limitations can be found at Fla. Stat. 95.11(3)(a).  It is important to understand that in Florida, there exists many different statute of limitations.  For purposes of this post, we will limit our discussion to the statute of limitations for general negligence.  Please note that medical negligence and malpractice have a very different time period for purposes of calculated the time that a lawsuit must be filed under the Statute of Limitations.

If a person fails to file the lawsuit within the four year limitations period, the claim or case will most likely be forever barred.  The important date to keep in mind when calculating a Statute of Limitations is the date that the incident occurs that caused your injury.  For example; if you are involved in a motor vehicle crash on July 23, but you do not discovery your injury from the crash until the following day, the Statute of Limitations will be calculated from July 23. 

In a very limited number of circumstances, the Statute of Limitations could be extended if certain circumstances and criteria are met.  Sometime a Statute of Limitations can be “tolled” or extended in limited circumstances such as mental incompetence of the injured person or if the claim for the injured person accrued while the person was a minor.  However, regardless of if there is a situation where the Statute of Limitation may be tolled, it is always more advisable to file your lawsuit prior to the expiration of the time period and not rely on a tolling or extension.    It is important to discuss with any potential lawyer the Statute of Limitations prior to when you hire them. 

In this post, we primarily discussed the time period for negligence and personal injury cases, but there are many other types of cases that have statutes of limitations such as Medical Malpractice, Professional Malpractice, Liable and Slander, Breach of Contract, Fraud, Damage to Property, and many others.  Make sure you know the applicable Statute of Limitations when considering your claim.