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° You must prove that you were injured,
° You must establish that your injury was caused by the accident
and not by a preexisting condition or unrelated event, and
° You must establish that the party who injured you was insured
An
insurance company will only pay for an automobile accident claim if
you prove that your injury occurred because of another's reckless or
negligent actions. You must prove that the negligent party owed you
a duty (either because of a law or because of a general duty to act
with reasonable care) and that the other party failed to meet its duty.
Examples of negligent actions are having your car hit because someone
was following too close; a collision occurred because someone ran a
red light; an accident was caused by a drunken driver, or a driver who
turned left in front of you caused a crash.
More than one person or entity may have been partially at fault in your
accident, and you may have even been partially at fault. In these situations,
the court distributes the fault among all of these entities. Generally,
if the other person bore 80% of the fault and you were responsible for
the remaining 20%, you will recover only 80% of your total damages.
If several people were at fault, there are special rules on "joint
and several liability" that govern the portion of the total damages
that are paid by each person or entity at fault. If you face a situation
where several people or entities may have been negligent, your best
course of action is to consult with an experienced personal injury lawyer
who can help to prove your claim.
If you have been injured through the fault of another, your lawyer should
immediately obtain all records, witness statements and photographic
evidence so that the issue of fault is immediately laid to rest. Your
attorney must act promptly since memories fade, conditions change and
witnesses move. Without proof of fault you cannot support a claim for
your injuries.
In order to prove who was at fault for an accident, your attorney should
also obtain all investigative records from the Florida HighwayState
Patrol and any other police agency involved, including witness and investigating
officer interviews. In more complicated cases, your lawyer may hire
licensed engineers to reconstruct the collision, or civil engineers
to evaluate the effect of the highway design, or mechanical engineers
to evaluate any equipment malfunction
2. What types of money damages can I recover?
You
are entitled to be compensated for your losses if you were injured because
of another party's negligence or careless actions. The justice system's
goal is to attempt to restore you to your position prior to your injury.
While the justice system recognizes that money cannot undo the accident
that caused your injury, it works to provide fair financial damages
to compensate for the injury. There are six main categories of damages
you may be entitled to:
° Property Damages - You are entitled to repair or replacement
of any property damaged in the accident. For example, damage to your
car, your clothes, your eyeglasses or other personal property.
° Medical Expenses - All costs incurred for health care should
be repaid to you including ambulance bills, hospital bills and charges
for surgical, medical or chiropractic care. Depending upon the type
of insurance coverage you or the other party purchased, you may be entitled
to payment of these bills regardless of who caused the accident.
° Future Medical Expenses - You are entitled to a sum of
money that will enable you to pay for future medical care of injuries
or disabilities caused by the accident. For example, you may be entitled
to future surgical care or future in-home nursing care if you are disabled.
° Lost Income - Even if you are self-employed or work on
commission, you are entitled to be paid for the income lost because
of your injury. These damages are meant to cover lost wages from your
job while in the hospital, lost income while recuperating and visiting
the doctor and for continued therapy visits after your return to work.
° Lost Future Earning Capacity - If you are partially or
completely disabled from employment because of your injury, you are
entitled to a sum of money that will compensate you for the lost capacity
to earn income in the future.
° General Damages for Pain and Suffering - You are entitled
to be compensated in dollars for the pain, suffering, disfigurement
and disability you have experienced as a result of the injury. An experienced
attorney can help to assess the dollar amount of the loss based on their
experience in other similar cases as well as their understanding of
the local justice system. Your lawyer will be invaluable in working
with the insurance company and substantiating your claim.
Additional
information on Property Damages
You are entitled to have personal property damages paid by the insurance
company of the person who caused the injury. If the personal property
was damaged beyond repair, you are entitled to the difference between
the fair cash market value of the damaged property immediately before
it was damaged and its salvage value. If the personal property is repairable,
you are entitled to recover the lesser of the cost of repairs plus any
diminished value after the repairs, or the difference between the fair
cash market value before the damage and the salvage value. In either
case, you are entitled to a sum to compensate you for loss of use of
the property during the time reasonably required for repair or replacement.
Often if your only losses are to personal property and you were not
injured in the accident, you can negotiate a settlement directly with
the insurance adjuster without the help of a lawyer.
Additional Information on Medical Expenses
As a personal injury victim, you are allowed any medical expenses incurred
as a result of your automobile accident. These expenses will be paid
by the insurance company of the party at fault for causing your injury.
To acquire these sums, your attorney will collect all of your medical
records from health care providers, including bills. This documentation
is then provided to the insurance company to prove that the expense
was incurred and that the treatment was required because of the accident.
The insurance company may attempt to argue that you had a preexisting
condition that dictated the treatment or that another injury required
the treatment. In order to protect you against this ploy, a skilled
attorney will obtain a complete history of medical care predating the
accident, including a written statement from the attending physician
confirming that in their professional opinion the need for treatment
was more than likely attributable to the accident.
Recovering compensation for medical expenses from an insurance company
is similar to filing for an income tax refund from the government -
you need to collect all of your receipts and accurately fill out the
required paperwork.
Additional Information on Future Medical Care
You are entitled to compensation to pay for future medical care related
to your injury. The insurance company will require an accurate, detailed
estimate from the physician or health care workers who will provide
your future health care services.
Your attorney will obtain your complete written medical records from
all health care providers so that the insurance company (and you) can
see the doctor's diagnosis and recommended treatment for your injury.
Your lawyer will meet regularly with physicians to review the records
and help them to address the insurance company's requirements in order
to pay for future medical care.
It is important to remember that there is a one-time lump-sum payment
for future medical care paid at settlement. Once a claim is settled,
it is not generally possible to reopen the claim.
Additional Information on Lost Income
If you have been injured through the fault of another, you are entitled
to recover all the lost income caused by the injury, including lost
wages from your job while in the hospital, lost income while recuperating,
doctor visits and any continued therapy visits after your return to
work. Medical proof of your inability to work and the amount of pay
that will be lost due to the injury must be calculated. If you are a
wage earner who lost a specific number of hours of work, you are entitled
to receive your hourly wage for each hour lost. However, if you work
on commission (like a realtor), or if you are self-employed (like a
contractor), your lawyer must reconstruct your financial losses by reviewing
business, tax and accounting records from prior years to determine your
future wages.
Your lawyer will obtain your complete written medical records from all
health care providers to confirm the doctor's opinion regarding your
medical situation. Your attorney will also meet regularly with doctors
to review the records and help them to address the specific requirements
imposed by the insurance companies before they are willing to concede
that a client has been unable to work because of the injury.
Additional Information on Future Lost Income
You are entitled to compensation for the loss of future income or future
loss of earning capacity. In order to receive an award, you must provide
medical proof that your injury will inhibit your ability to earn income
in the future. You must also demonstrate the amount of income you will
lose. Projecting the amount of future income lost can be a simple or
complicated process depending on your type of employment. While this
can be difficult, we employ experts experienced in economic reconstruction
and projection.
To prove that you are unable to work or cannot work at the same level
of earnings you enjoyed before the injury, your attorney will obtain
a written statement from a doctor describing your medical condition
and prognosis. This documentation is then reviewed by a vocational rehabilitation
specialist who can better assess your ability to perform in the work
force with the medical condition. The specialist's review often requires
extensive physical, mental and psychological testing. Once the vocational
specialist establishes a level of employment ability, an economist will
be consulted to estimate the difference between the anticipated future
earnings prior to the accident and the earnings you can now expect in
the future as a result of total or partial disability. This difference
is the loss of future earnings or loss of future earning capacity.
If you were partially or completely disabled as a result of an injury
caused by someone else, the loss of future income or an inability to
work at the same level can have a significant impact on your capacity
to support yourself and your family.
Additional Information on General Damages for Pain and Suffering
The law is clear regarding a victim's right to recover money damages
for pain, suffering, disability and disfigurement. However, it is more
difficult to estimate the amount of money required to compensate a victim
for their loss. This difficulty is compounded by the need to prove the
calculation to an insurance company or a court. While medical expenses
or lost wages can be substantiated through bills or pay stubs, how is
a value assigned to pain? How do we measure what pain is worth? Since
we can't ask volunteers to describe how much money they would be willing
to accept to be seriously hurt in an automobile accident, instead we
estimate the money value in a pain and suffering claim by analyzing
damage awards made in similar cases. This involves reviewing the Florida
Jury Verdict reporter and looking at cases similar to yours on a regional
basis. These comparisons help us to secure the most fair settlement
amount with the insurance company. In situations where the insurance
company refuses to pay a fair settlement, our attorneys have the skill
to present real human losses to a jury in a compelling way. Because
we are always prepared to take a claim to trial (and the insurance companies
know it), we can usually obtain a favorable settlement that includes
an appropriate amount for general damages in an out of court settlement.
3. How much is my injury claim worth?
There are two ways to estimate the monetary settlement value of a claim.
To find a total claim value, add up the amounts you are entitled to
for property damage, medical expenses to date, future medical expenses,
lost earnings to date, future lost earnings, and general damages for
pain and suffering. Since damages such as general damages for pain and
suffering are difficult to evaluate, the second method of assigning
a monetary settlement value is used. We will review the Florida Jury
Verdict reporter and find regional cases with similar injuries and similar
liability patterns to help determine the value of your case. If you
have been seriously injured through someone else's fault, you should
not attempt to estimate the value of your claim without professional
assistance
4. What should I do immediately to help preserve my claim?
To support your claim until you meet with an attorney, it is important
to preserve evidence and protect your negotiating position. By documenting
your accident and injuries, you are substantiating your claim and providing
your chosen attorney with a head start on your legal strategy.
The first step in preserving evidence is to obtain the name, address,
phone number and insurance information from the party that caused the
accident. Take photographs of the accident scene, pictures of the damaged
automobiles, photographs of your injury, and photographs of yourself
during your recovery period. Do not attempt to interview witnesses to
the accident. Instead, record their names, addresses and phone numbers
so that if there is a later dispute you will have objective bystanders
to support your version of events. Also, be sure to keep a daily journal
beginning with the date of the accident to document all physical and
mental injuries, as well as your perspective of the accident. Bring
all of this to your lawyer once you have selected one.
Next, preserve your negotiating position. Do not sign anything presented
by the insurance adjuster. Do not give a written or oral statement to
an insurance adjuster. Do not attempt to negotiate a settlement with
an insurance adjuster who works to minimize payouts. As you are in the
process of preserving evidence and protecting your negotiating position,
you can also invest the time to find an experienced, proven personal
injury lawyer.
5.
How does the insurance claim process work?
Insurance companies are in business to make a profit. Generally, the
insurance company's profit is the difference between what it collects
in premiums and what it pays out in claims. Therefore, the insurance
adjuster's job is to settle your claim for as little as possible to
maximize the company's profit. Your lawyer's job is to settle your claim
for its maximum value.
We know how to work with insurance companies. We have former insurance
adjusters who work with us as paralegals. Insurance companies have developed
a huge bureaucracy to scrutinize, criticize, evaluate and ultimately
pay insurance claims. The insurance adjuster's job is to identify false
or fraudulent claims and to refuse to pay undocumented claims. The insurance
adjuster is trying to build a file, to critically evaluate your claim,
and to pay as little as possible to settle your claim as soon as possible.
The insurance adjuster is not your friend! Remember, the insurance adjuster
reports to a supervisor. If the adjuster has a thin, small file on a
claim that was settled for $10,000, the supervisor is likely to say
"You paid too much. This file does not support a $10,000 payment."
Conversely, if the adjuster settles a claim for $100,000 and gives the
supervisor a thick and well-documented file that includes complete witness
statements, complete medical opinion letters, and comprehensive records
of all medical care, wage losses, and other expenses, the supervisor
is more likely to say, "That's fine, the claim was worth $100,000".
Your attorney's role is to help the insurance adjuster build a file
that supports a full and fair claim settlement.
Your lawyer's goal should be to maximize your financial recovery from
your injury. Your attorney should have a reputation for honest dealing;
for a fair but firm settlement posture; for refusing to settle for a
penny less than the claim is worth; and for being prepared to take each
claim to trial to get a full and fair recovery.
There are basically five steps the insurance adjuster must take in handling
a personal injury claim:
1. Collecting Information
2. Setting Reserves
3. Evaluating Damages
4. Negotiating Settlement
5. Defending in Trial if Necessary
Collecting
Information. Since the adjuster must collect information
needed to understand your claim, your lawyer should provide all the
required information to validate the claim to the adjuster and their
company. Sometimes insurance adjusters are so busy looking for damaging
information about you or your claim that they miss favorable information.
Your attorney should collect and highlight that favorable information
- witness statements, photographs of the collision and your injury,
opinion letters from experts in medicine, accident reconstruction and
economic loss. When your attorney presents the claim to the adjuster,
he is more likely to understand the significance of your claim.
Setting Reserves. When a claim comes in, the
company must set reserves, an accounting entry, to assure government
regulators that the company has adequate money to pay the claim. If
initial reserves are set too low, when the time comes to settle the
claim, the adjuster will sometimes be too limited in the amount of money
he can offer in settlement. Your attorney must get the appropriate information
to the adjuster as soon as possible to assist the company in setting
high enough reserves that the ultimate settlement can be for the full
claim value.
Evaluating Damages. Since the adjusters must
evaluate the claim value, your attorney should provide them with all
relevant information, including comparable cases from state, regional
and national publications and computerized databases, and our own evaluation
of the claim's value to assist the adjuster in coming to a full and
fair evaluation.
Negotiating Settlement. There is an old saying,
"A lawyer who represents himself, has a fool for a client."
Likewise, a personal injury victim who attempts to negotiate a settlement
with a professional insurance adjuster is likely to recover far less
than the claim's true value. Do not attempt to negotiate a settlement
of your personal injury claim without professional advice.
Defending in Trial if Necessary. If a settlement
cannot be negotiated, the insurance company must defend its position
in court. To improve your chances for compensation at trial, your attorney
must have a quality reputation, proven credentials, a fair but firm
settlement posture that refuses to settle for less than a full claim
value, and the ability and resources to prepare for an aggressive litigation
of your claim.
6. What can I do if the person who caused the injury is uninsured?
If you are uncertain as to whether the party at fault for the accident
has sufficient insurance, contact a lawyer immediately to help you in
gain this critical information. We have handled many claims for individuals
who have been injured by an uninsured or underinsured party who cannot
pay a full and fair claim. While these cases can be difficult, do not
give-up until you investigate other potential sources of compensation
for your injuries. The most important way to protect yourself from uninsured
and underinsured drivers is to carry Uninsured Motorist Coverage (UM)
in an amount equal to your own liability coverage. UM coverage will
take the place of the at fault driver’s coverage if they have
insufficient insurance or none at all.
7. What if I have a preexisting medical condition?
If another party is to blame for your injuries, you are entitled to
be compensated for only the injuries suffered in the accident. If the
insurance company suspects that your injury existed prior to the accident
or that you were injured in an unrelated event, they may refuse to pay
your claim. To prevent this situation, we obtain your entire medical
history so that we can identify what has been reported in the records,
and we can then reassure the insurance company that no preexisting or
unrelated injury exists. The proof of a causal link between the accident
and the injury may seem simple, but your lawyer must work hard to eliminate
the insurance company's natural skepticism which can lead to non-payment
of your claim.
Special rules govern compensation for aggravation of preexisting injuries.
If your automobile accident has been caused by the negligence of another
party and you have been injured in an area where a pre-existing infirmity
exists, you are in the complicated situation that requires expert legal
help. If prior to the accident you had a pre-existing bodily condition
that was causing pain or disability and then the accident further exacerbated
the pain or disability, you are entitled to compensation for the aggravation
of that condition.
If you had a pre-existing condition or disability prior to the accident
and it made you more vulnerable to injury than a normally healthy person,
you are also entitled to compensation for those injuries and damages
caused by the accident. You are not entitled to compensation for an
injury sustained in a subsequent accident that is a normal consequence
of an impaired physical condition caused by the original injury and
which would not have occurred had the plaintiff's physical condition
not been impaired.
8. How long do I have to file a claim?
The statute of limitations on an auto accident in Florida is generally
four years. There are certain exceptions and the time period could be
shorter. You should not wait until the last minute to bring a claim
or you may have an extremely difficult time finding a law firm willing
to take your case.
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