What is a Personal Injury Claim?
What elements make up a Florida personal injury case?
The fundamental concept behind personal injury claims is that some else has caused you damage and you are entitled to compensation for the damages you have lost. Common examples of personal injury claims include auto accidents, dog bites, slip and falls, medical malpractice, and motorcycle accidents.
Elements of a Personal Injury Claim
Duty of Care
In order to prevail on a personal injury claim, you must do more than show that you have suffered an injury or loss. You must show that the other party owed you some kind of duty of care. The law can impose a duty on a person in a variety of ways. For example, your local grocery store has a duty to make sure their store is safe for you while you are shopping. The levels of duty that a person or company has to you is based on their relationship to you. For example, a doctor has a higher level of duty to care for you than, say, a flea market.
So how do Florida courts determine if an individual had a duty of care? By answering a simple question: Could the harm that the defendant’s actions caused been predicted by another reasonable person in the same circumstance?
To use the doctor example above, one would need evaluate if a similar, reasonable doctor could have predicted that the defendant doctor’s actions would cause harm. Would a reasonable doctor be able to predict that the defendant leaving a tool inside a patient’s body would cause harm? The answer is probably yes.
Breach of Duty
The other person must then fail to meet that duty they owe (i.e. breach their duty of care). In other words, once it has been established that an individual has a duty of care, did they fail to live up to that duty? If so, you are one step closer to proving negligence.
Let’s look at another example. Mateo enters a grocery store to shop. While shopping, he slips and falls on puddle from a leaking air vent, which had been leaking for week and the store had yet to fix it. Mateo suffers a herniated disc in his back. Mateo decides to sue the grocery store for his injuries.
Mateo would first have to prove the grocery store had a duty of care. Since the grocery store invites guests into their building, they have a duty to keep them safe. Next, Mateo would have to prove that the store breached that duty of care. The store knew about the leak and failed to fix it, causing a puddle to form on the floor. This is clearly a breach of the duty because the store failed to keep their shopper safe.
You must be able to show that the other party’s failure to meet their duty was the cause of the injury you suffered. [Read more about the elements of causation.]
For example, in a premise liability context, the law imposes a duty on property owners to keep people they invite onto their property free from known danger. If this property owner invites you over for dinner but fails to warn you about or repair a broken stair, they have breached their duty to protect you from danger. If you are injured because of their breach, e.g. you stepped on the loose stair and tripped, you are entitled to compensation from the property owner for the damages you sustain.
Personal Injury Claims in Florida
Each state has its own set of laws that regulates when and how personal injury claims may be brought. If you plan to file an action for a personal injury in Florida, a few of the basic Florida laws you should be aware of include:
Time Limit: All actions have a limit on how long you can wait to bring your claim in court. This limit is known as the “statute of limitations” and if you wait too long, your claim will be barred from court. In Florida, you have four years1 to bring a personal injury action to court. If your claim is against any government entity, the time limit is shortened to three years.
Limits on Damages: In Florida, there are limits on the amounts you can recover for certain kinds of personal injury claims. For example, for most personal injury cases, punitive damages2 are maxed out at 3x regular damages or $500,000, whichever is greater.
Comparative Fault: Florida follows a “pure comparative negligence” doctrine when assessing damages for personal injury claims. This means that if you recover for your injuries, under Florida law, the amount of your recovery will be reduced by the amount of your fault. For example, you are awarded $100,000 for your medical costs and other damages based on a car accident you were in. However, the jury also determines that the accident was 60% your fault. This means that the amount you are awarded is reduced by 60% and you only receive $40,000.
What damages can I recover for a personal injury claim?
If a plaintiff can prove liability on the part of the defendant, he or she is entitled to recover damages. The amount of damages can be reached by agreement prior to trial in the form of a settlement agreement or can be determined by the judge or jury at trial.
The amount of recovery for a personal injury claim will vary widely depending on the plaintiff, the severity of the injury and countless other factors. Plaintiff will generally be awarded compensatory damages, designed to compensate them for their losses. Compensatory damages include things like medical bills, property damage, lost wages and pain, and suffering.
If the defendant’s actions were especially bad, additional or punitive damages may be awarded. The purpose of this kind of damage award is to punish the defendant and deter others from similar bad behavior. Punitive damages are rarely awarded.
As discussed above, if it is determined that you were partially at fault for the injury you suffered, the damages you are awarded will be reduced proportionally.
Should You Negotiate a Personal Injury Claim or File a Lawsuit?
Updated / Reviewed April 1, 2020
Choosing between a claim or lawsuit is your first step in going after the injury compensation you deserve. Here’s what you need to know to get started.
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When another party (like a person or business) causes you to get hurt, you have the right to expect compensation for your injuries.
Every day someone like you is injured by car accidents, slip and falls, dog bites, defective products, medical errors, and more.
Imagine you’re injured in a car accident caused by someone else. You have hospital and doctor bills, costs for medications and bandages, and continuing therapy bills. You’re hurt and can’t work. The pain you suffer continues daily.
Should you file a lawsuit against the at-fault driver, or do you file a claim and try to negotiate a settlement? A personal injury claim and a personal injury lawsuit are separate and distinct from one another. It’s important to understand which one best applies to your situation.
Difference Between a Claim and Lawsuit
Claims and lawsuits are different ways of seeking compensation for damages. Personal injury damages often include:
Medical and dental bills
Physical therapy or rehabilitation expenses
Out-of-pocket medical expenses like medications, crutches, and bandages
Cost of ruined personal items like clothes and eyeglasses
Pain and suffering
A personal injury claim usually involves an insurance company, such as auto insurance, homeowner’s insurance, business liability insurance, or malpractice insurance.
Personal Injury CLAIM
A personal injury claim is between you and the insurance company. In most cases, like car accident claims, you’ll file your claim with the at-fault driver’s insurance company before any lawsuit is considered.
The claims process is a series of negotiations between you (or your attorney) and the insurance company’s claims adjuster. The negotiations hopefully result in a compromised settlement payment, where both parties are satisfied.
You may decide to handle a minor injury claim without an attorney. You should be able to work directly with the insurance company for car accident, slip and fall, and other small liability claims.
For injuries caused by medical malpractice, dangerous drugs, workplace poisoning, and similar complex cases, you’ll need an attorney to win fair compensation.
Personal Injury LAWSUIT
A personal injury lawsuit is filed when the negotiation process breaks down, and a compromise can’t be reached.
The breakdown may occur because the claims adjuster denies their insured was at fault, or doesn’t agree with the severity of your injuries and the amount of compensation you’re demanding.
When claim negotiations hit a wall, the next step is a lawsuit.
Beginning a Personal Injury Claim
A claim begins after a victim suffers bodily injuries or property damage caused by another person’s negligence. In car accident cases, the victim pursues the at-fault driver, who turns the matter over to their auto insurance company.
Once the insurance company is notified, it generates a claim number and assigns the case to a claims adjuster. The adjuster opens a claim and contacts the victim to negotiate a settlement. If the two can agree on a settlement, a lawsuit will not have to be filed.
You should always put the at-fault party’s insurance company on notice that you intend to file a claim as soon after the accident as possible.
However, do not make a demand for compensation or begin settlement negotiations until you are completely recovered from your injuries.
To settle the case, the claims adjuster needs proof that the accident was caused by the insured (the at-fault driver), that the insured was negligent, and that the victim’s injuries are severe enough to qualify for a settlement. To get this proof, the adjuster will investigate the facts of the case.
In a car accident claim, the investigation may include:
Reviewing your medical charts and bills
Speaking with you, and any witnesses to the accident
Reviewing the police report
Going to the scene of the accident and taking photos
Looking over the damage to your car and estimating repair costs
Evaluating any other evidence you provide
Your communication with the claims adjuster needs to be accurate and support your case.
During the claims process, you must convince the adjuster:
Their insured’s negligence caused the accident
Your injuries are real and required medical attention
The cost of your medical treatment is substantial
Your out-of-pocket costs are real and directly related to the accident
Because of your injuries, you were unable to work and earn income
You suffer continuing pain and discomfort
When the investigation is over, the claims adjuster will make a decision based on all the information in the claim file. The decision can range from paying the entire amount of your demand, to paying nothing. Generally, the adjuster’s response is somewhere in between.
At any time during the claim process, you have the right to consult an attorney about handling your claim.
After receiving the adjuster’s response, you’ll start negotiating. If you eventually come to an agreement, the insurance company sends you a release form and a check.
Once you sign the release and cash the check, your claim is finished, and final. You have “released” the right to seek more compensation.
Watch Out for the Statute of Limitations
Personal injury claims are subject to legal deadlines called Statutes of Limitations. You must settle your injury claim or file a lawsuit before the deadline, or you’ll forfeit the right to pursue compensation for your injury.
The clock starts running when your injury occurred, not when you filed your insurance claim. It’s up to you to keep track of the time you have left to act.
The insurance company is under no obligation to help you settle your claim before the deadline, or to warn you that time is running out. The adjuster knows if the statute runs out before you settle, they win.
Each state has its own statute of limitations for personal injury cases. Most are between two and three years, so check your individual state’s laws.
Normally, the state where the accident occurred is the state whose statute applies. With few exceptions, it’s also the state where the lawsuit must be filed.
Beginning a Personal Injury Lawsuit
A civil lawsuit may become necessary when you can’t reach an agreement with the claims adjuster. Technically, you can file a lawsuit anytime, starting from the first day of the accident. But for most minor accidents, a lawsuit is a last resort.
A lawsuit must be filed against the at-fault person, not their insurance company.
It’s probably not in your best interest to file a lawsuit for minor injuries, at least until claim negotiations break down and other methods of resolution have failed, such as arbitration.
A negotiated settlement is often the best result because it avoids the high costs and stress of litigation. Unless you’ve been severely or permanently injured, you might not come out ahead financially with a lawsuit, even if you are awarded more than the adjuster offered for settlement.
Although you might not be satisfied with the amount of money being offered, before you refuse, consider the expense and time needed to pursue a lawsuit.
Lawsuit expenses can include:
Court filing fees
The cost to have a sheriff serve your lawsuit
Time off from work
Court reporter costs for depositions and transcripts
Expert medical testimony at depositions and trial
Copying costs for medical records, police reports, etc.
Never file a lawsuit because you’re indignant over the amount the insurance company offers to settle your claim. Before you file a lawsuit on your own, talk to an experienced personal injury attorney about the value of your claim.
Arbitration Instead of a Lawsuit
Arbitration can take place after settlement negotiations fail, but before filing a lawsuit. It’s like going to court, without actually having to go to court.
In arbitration, both sides agree on a third party, called an arbiter (or arbitrator), who listens to both sides and decides the outcome. In most cases, once the arbiter makes a decision, it cannot be appealed.
Warning: Arbitration does not stop or “toll” the statute of limitations.
Unless the statutory deadline is looming, arbitration is an excellent alternative to filing a lawsuit. There are various types, including one that guarantees you’ll receive at least some amount of money.
Compared to a lawsuit, arbitration takes less time and less money to get to a final resolution of your case.
No-Fault Claims and Lawsuits
Most car insurance companies won’t pay a claim unless the victim can prove their insured was completely to blame for the accident. Years ago, proving fault could take a lot of time and effort, and even minor injury cases ended up in court.
To prevent lawsuits and help injured victims get paid faster, many states adopted no-fault auto insurance laws.
If you live in a no-fault insurance state:
Your insurance company must provide Personal Injury Protection coverage (PIP)
PIP will pay your medical bills and lost wages no matter who caused the accident
You are not allowed to seek compensation from the other driver for most injury claims
PIP does not pay an amount for pain and suffering
No-fault states allow exceptions for severe, high-dollar injury claims. You may legally pursue compensation from the at-fault driver if the cost of your injuries is more than the available PIP coverage, or your injuries meet a certain threshold of severity.
Serious Injury Threshold
Threshold injuries are very serious injuries. To fall in this category, the injury must have caused significant damage, and either be permanent or limit a person’s ability to do normal, daily activities for a specific period.
Although the various states define threshold injuries differently, some are common to all.
Threshold injuries include:
Significant disfigurement or scarring
Loss or significant limitation of a body organ
A medically-certified injury or impairment that may be non-permanent, which prevents you from performing acts that are customary and usual for at least 90 days of the 180 days following your injury
If your injuries don’t meet the threshold, and you live in a no-fault state, give very serious thought to settling your claim – even for less than you think it’s worth. You could end up with nothing if you try to go after the other driver.
On the other hand, if your injuries are bad enough to exceed the no-fault threshold, you are almost always better off hiring a skilled personal injury attorney to handle your case.
Any further questions please contact Dynamic Health & Wellness at 813-605-0591...