Information Needed for a Personal Injury Claim

personal injury attorney Tampa FLOnce a client contracts to retain me to represent them regarding their injury claim, the first thing I do is find out what insurance coverage the at fault party has to compensate the client for the damages sustained by them. In auto accident cases, many times the adverse owner/driver may have minimal coverage, if any at all. If my client does not have uninsured/underinsured coverage (UMI), there may not be much I can do for them.

If there is sufficient insurance to compensate my client, then I secure a copy of the police report. I then will contact any witnesses listed on the report for their version of what happened. I also will visit the accident scene to confirm the information in the report.

Next, I will begin to secure the clients medical records. This will include the records from all of the healthcare providers who have seen and treated the client since the accident i.e. hospital, walk in clinic or physician emergency treatment providers.

Then I will obtain the medical records of any physician who have seen my client for follow-up care and treatment. Also important is whether or not the client has health insurance to pay for the medical charges to receive treatment. Most clients have PIP coverage on their own auto insurance to cover the beginning treatment. PIP usually has a $2000 deductible and then pays 80% of the medical expenses up to $ 10,000.

After that, the client needs to rely on their own personal health insurance to pay for their care. Unfortunately, many people do not have health insurance to pay for continuing health care. If that is the case, I will talk to the client’s doctors to see if they will accept a Letter of Protection (LOP). What this means is the doctor agrees to continue to care for the client and the client agrees to pay for the charges once the case is resolved. If there is a recovery, the medical charges are paid before the client the client receives any settlement proceeds. If, there is no recovery, the charges are still due and payable from the client.

Many health care providers will not agree to accept an LOP. It may take an extended period of time for the case to be resolved and there is no assurance that the client will prevail. I, fortunately, work with outstanding orthopedic physicians who will provide care with an LOP if the chances of a recovery is good.

Next, I will secure lost wage information and other employment information for the client. Keep in mind that PIP also pays 60% of lost wages in addition to medical payments. However, the maximum PIP pays is $10,000 for both. Future loss of wages must also be determined as well as the need for future care and treatment before any settlement can be agreed to.

Once the client has reached Maximum Medical Improvement (MMI) and no future care will improve the injuries and disabilities, then the claim is ready to proceed to settlement discussions with the opposing party’s insurance carrier.

Florida Safety Belt Law

car accident lawyer Tampa FLFlorida law on safety belt usage is set forth at Florida Statute 316.614. You can Google this citation and review the law in its entirety. Here are the most pertinent portions of the law.

Federal Law required automatic crash protection systems to be built in to all new cars as of July 17, 1984. Florida law supported the federal law requiring automatic crash protection by enacting Florida’s seat belt law.

Florida Law provides that it is unlawful for any person to operate a motor vehicle unless the person is restrained by a safety belt. Furthermore, it is unlawful for any person 18 years of age or older to be a front seat passenger unless restrained by a seat belt.

Any person who violates this law commits a non-moving violation and is fined accordingly.

This law also has civil litigation provisions that can affect a recovery in a personal injury lawsuit for compensatory damages. If it is shown that a seat belt was not being used by an injured party at the time of the accident, the defense attorney can claim that the injury would not have occurred or would have been less serious if a belt had been used.

While the at fault driver may have been negligent for causing the accident and injuring you, it can be argued that you contributed also to your injuries and disabilities This will be argued during settlement discussions by the defense and make a settlement more difficult to achieve.

If the case has to be tried and the jury feels that you contributed to your injuries, the verdict will probably be less than what it might have been if you were wearing your seat belt.

The best advice I can give you is to ALWAYS use your seat belt. It is there to help protect you. It does reduce injuries and prevents death. If you are hurt in an accident, make sure the at fault driver and the insurance company compensates you for all of your damages. There is absolutely no reason not to use your seat belt.

HEALTH INSURANCE ISSUES IN PERSONAL INJURY LITIGATION

Health insuranceWhen you are injured in an accident and you receive medical care for your injuries, there are charges for that from the health care providers. Your automobile insurance is the primary source to pay these bills.

Your personal injury protection (PIP) benefit under your no-fault auto policy is the primary source responsible to pay for your medical care after an accident. All auto policies contain this coverage in Florida. PIP pays up to $10,000, 80% for medical bills and/or 60% for lost wages. There is a $2000 deductible that must be met before any PIP benefits are paid.

Some policyholders also purchase Medical Payment coverage which pays up to $5000 or more toward medical bills after the PIP benefits are exhausted.

If there are charges that are not paid after your auto coverage is used, then you look to your health insurance to pay the remaining unpaid bills. Health insurance is secondary coverage to your auto insurance and is not responsible for any payments until your auto insurance is exhausted.

However, when your claim is resolved, either by settlement or jury verdict, your health insurance is entitled to be repaid some, if not all, of the funds they paid for your medical expenses. This is called SUBROGATION. It is part of all health insurance policies. There are very strict laws that make the claimant responsible to repay the health carrier. Also, your attorney is secondarily liable if repayment isn’t made by the client.

You do not have to repay your auto insurer for the PIP payments but you do have to repay them for any medical payments they make under your MedPay coverage.

Therefore, after paying your attorney fees and costs, the subrogation claims discussed above also must be paid before you receive your net recovery from the settlement. SUBROGATION is the theory that if you had not been injured and incurred medical expenses because of the fault of someone else, the health insurer would not have had to pay the medical bills. If you are compensated for your injuries by the at-fault party, then they have the right to recover the sums they paid out from your recovery.

What to Do When You Are in a Car Accident

Richard M Mitzel PAThe first thing that needs to be done is to call the police. Even if you have to wait a while, wait for the police arrive. They will investigate and determine exactly what happened, who is at fault and put all of the pertinent information in their final report. They also will put a diagram of the accident scene in the report showing where the vehicles collided and where they came to rest.

All of this is very important. It provides a record of when and where the accident happened and who was involved. I have had clients consult with me about having an accident where they were injured but did not call the police. They exchanged information with the adverse driver and then left the scene. When I would contact the at fault driver, they would claim they knew nothing about the accident, they were out of town on that date etc. Without the police report there was no way I could prove a claim against them. Even if you have a passenger in your car who was a witness, it is still your word against theirs.

Also, if you have an iPhone, take photos of the scene and the position of the cars. Many times the cars are moved before the police arrive. Most of the time there is disagreement as to what happened, who was in which lane and who caused the accident. Photographic proof goes a long way in establishing who is telling the truth regarding fault and responsibility for the accident.

Always report the accident to your insurance company. They have the right to know about the claim and failure to promptly advise them could violate the policy provisions and result in a denial of coverage. Your insurance company will help you with your claim against the other party and their insurance company.

On the other hand, the adverse insurance company is not your friend. It is their job to show that you were at fault, you were not injured and try to minimize the amount of compensation they have to pay you to settle the matter. If you give them a recorded statement, it will be used to discredit your claim. Think twice before speaking to them.

Better yet, call me for advice on how to proceed. The consultation is free. There are many issues to consider in successfully prosecuting a personal injury claim and a possible lawsuit to be fairly compensated for your injuries, lost wages, medical bills and your pain and suffering. The insurance company has attorneys. I would suggest you retain a lawyer to level the playing field and make it a fair fight. Nothing is owed to me unless and until we prevail and you are compensated for your damages.

WHAT IS THE FEE TO HIRE A PERSONAL INJURY ATTORNEY?

lawyer-3Most attorneys charge clients a fee based on the time spent in prosecuting the claim at an hourly rate. The hourly rate can vary from $200 an hour to $500 an hour, or more, depending on the complexities of the case and the expertise of the attorney.

That is not the way the fee for a personal injury attorney is calculated. Instead of charging an hourly rated fee, plaintiff’s lawyers charge a contingency fee. The vast majority of clients who have been involved in an accident and have received injuries as a result thereof, cannot afford to pay an attorney an hourly rate and all expenses up front prior to receiving compensation for their injuries.

The contingency fee has often been described as the “POOR MAN’S KEY TO THE COURTHOUSE.” When you hire a personal injury attorney, there is no fee or cost to be paid by the client to the attorney until such time as the CONTINGENCY has been met. The contingency is that the client pays nothing in terms of fees or costs until a recovery has been made compensating the client for economic damages, i.e., medical bills, lost wages, etc., and non-economic damages, i.e., pain and suffering as a result of the injuries. If the contingency is not met, i.e., no recovery for economic and/or non-economic losses sustained by the client, the client owes nothing to the attorney for fees and costs.

However, if there is a recovery and the client is compensated for the injuries and losses as a result thereof, then the contingency has been met and the fee and costs are due the attorney when the settlement proceeds are distributed.

The contingency fee agreement in a personal injury matter provides that if the matter has been successfully concluded, then the plaintiff’s attorney is to receive a portion of the recovery as his fee, plus whatever costs were incurred by the attorney in the prosecution of the claim. Basic contingency fee agreement is the same for all lawyers in Florida. The maximum that the Florida Supreme Court will allow a personal injury attorney to charge is as follows. If the case is resolved to the client’s satisfaction without the necessity of filing a lawsuit, then the fee is one-third (1/3) of the recovery. However, if the injury attorney has to file a lawsuit or a demand for appointment of arbitrators, then the fee is increased to forty percent (40%) once the answer to the complaint is filed by the defense or demand for the appointment of arbitrators is made by the defense. The forty percent (40%) recovery remains the same whether the matter is settled shortly thereafter or if it takes an extended period of time to achieve a recovery, i.e., the contingency.

Many people believe that the fee does not go from the one-third to forty percent unless the case goes to trial. That is incorrect. Again, it goes to forty percent (40%) once a lawsuit or the arbitration claim has been answered by the defense.

The only additional fee that might be charged in a personal injury case is if the judgment matter is appealed by either side after the entry of a judgment concerning the issues. Very few cases are appealed by either side once a judgment has been entered. As a matter of fact, most cases are not tried in the first place, but are amicably resolved between the parties prior to a trial.

Because of the contingency fee agreement, the injured party can retain a qualified, experienced and successful attorney to represent them because the fee is the same no matter who the injured party retains to represent them.

Again, if the contingency of financial recovery is not met, then the attorney is owed nothing for fees and costs. However, if the contingency is achieved, the applicable percentage of the recovery is paid to the attorney as his fee, plus all costs incurred by the attorney.

What is the Statute of Limitations for a Personal injury claim?

lawyer-2A Statute of Limitations is a law which places a time limit on filing a claim for a legal remedy because of negligent conduct. If the statutory period expires, the injured party loses the right to file a lawsuit for money damages and other relief.

There are different statutory periods for different types of negligence claims. The Statute of Limitations starts at the time of the act giving rise to the injury.

An action founded on negligence has a four year Statute of Limitations. This includes automobile, truck, motorcycle, train, slip and fall, including premises liability, and product liability claims. The Statute of Limitations for a Uninsured/Underinsured vehicle claims is 5 years.

Medical Negligence claims have a two year Statute of Limitations from the time of the incident giving rise to the action or within two years from the discovery with due diligence not to exceed four years. This includes licensed physicians, osteopaths, podiatrists, dentists, pharmacists, chiropractors, hospitals and nursing homes. The Statute of Limitations for any negligent conduct causing Wrongful Death is two years.

The Statute of Limitations for Legal Negligence claims is two years from the time the cause was discovered or should have been discovered with the exercise of due diligence. If you wish to know which statute applies in a specific situation, please call us. Don’t let the time to file suit expire because your claim will be forever barred if that happens.

Why You Should Have Uninsured Motorist Coverage

Over the years, my clients who have been in an automobile accident have come to me and have made a claim for injuries against the adverse party’s insurance carrier. Much to their chagrin, some clients find out that the other drivers had only minimal vehicular insurance, none of which would pay a client any funds for economic losses, i.e., lost wages, medical bills, etc., or non-economic damages, i.e., permanent pain and suffering as a result of the accident and the injuries.

When I have asked my clients what automobile insurance coverage they have, they usually respond that they have “full coverage.” That is a “misnomer.” Florida is a “no-fault” automobile insurance state. What this means is that if you drive on Florida’s highways, you only have to have a minimum coverage of $10,000.00 for personal injury protection benefits and $10,000.00 for property damage liability. This coverage only pays for medical expenses and lost wages for the driver of the vehicle, no matter who is at fault in the accident. In other words, your own insurance pays for your medical expenses and lost wages, and the other driver’s insurance company pays for their medical bills and lost wages. Therefore, if you are in an automobile accident and the at-fault driver only has this bare-bones coverage, his insurance carrier does not have to pay you anything for your economic or non-economic damages because the adverse driver did not have bodily injury coverage.

When the person responsible for an accident and your injuries does not have any bodily injury insurance coverage, or he does not have enough bodily insurance coverage to compensate the client for their total economic and non-economic losses, the only way to be compensated for your injury and financial losses is UMI coverage. UMI means either “uninsured motorist coverage” or “under-insured motorist coverage.

The only way to protect yourself and your family from sustaining financial loss when involved in an accident with an uninsured motorist, or an under-insured motorist, is to obtain uninsured motorist coverage on your automobile policy. There is an additional premium charged for this coverage, but it is reasonable, and you should not be without it. Keep in mind that a substantial percentage of people driving automobiles in the State of Florida have minimal bodily injury coverage or no coverage at all. Therefore, the chances of your being involved in an accident with one of these people is great.

When you apply for automobile insurance, the agent and/or insurance company are obligated to advise you of your rights to secure UMI coverage. It is your option to either select UMI coverage or reject it. If you decide to reject this coverage, then the insurer must obtain a written rejection from you concerning the coverage. If they do not discuss UMI coverage with you, and do not obtain a written rejection from you, then you are entitled to uninsured motorist coverage benefits up to the limits of your bodily injury liability coverage provided by your policy if you are in an accident.

Another important consideration is called “stacking” of coverage. What that means is that if you own two or more vehicles insured under the same basic policy, you could elect to stack your uninsured motorist coverage for the number of vehicles so insured. Example: if you have a $10,000/$20,000 UMI policy, and you own two vehicles, if you purchase stacked UMI coverage, that means the total available to you in the event you do have a UMI claim is $20,000/$40,000. If you have three vehicles insured for $10,000/$20,000 bodily injury limits, then you have $30,000/$60,000 UMI coverage that inures to your benefit if needed. But again, all of these options increase your premiums, but the coverage is invaluable if the situation arises where you need it. UMI coverage is probably the coverage you will need the most if and when you have an automobile accident which is the fault of someone else and you had serious economic and/or non-economic damages as a result thereof.

Do You know Changes to Your Auto Insurance Medical Benefits?

If you have an automobile, you know that in Florida auto insurance is mandatory. Are you aware of the new changes to your auto insurance policy? Those changes are going to affect your medical bill payment benefits in case of an auto accident. It is important that you know your rights under the new Personal Injury Protection (PIP) law. Florida is a No-Fault State. What that means is that regardless of fault, PIP will pay for your medical treatment and/or loss wages up to $10,000.00.

car accidentPreviously, if you were involved in an auto accident, you did not have a time limit to seek treatment and you could choose medical treatment from a medical provider of your preference in order for PIP to cover your medical treatment.

Under the new PIP law, which went into effect January 1, 2013, states that you have only 14 days from the day of the accident to seek medical treatment. PIP will NOT pay for your medical treatment regardless of the diagnosis after that time. The medical treatment and diagnosis within this 14-day window can only be rendered by a medical doctor (MD), osteopathic doctor (DO), a chiropractic physician (DC), a dentist, or a hospital emergency room. Additionally, if you seek initial medical treatment for injuries within 14 days from a chiropractor, your PIP will only pay up to $2,500.00 in medical benefits, and no more regardless of your condition. In addition, PIP would not cover any therapeutic messages or acupuncture treatment.

Another important change is that PIP will only pay up to $10,000.00 for your medical expenses if your injuries are considered an “Emergency Medical Condition.” “Emergency Medical Condition” is defined as an injury or injuries of sufficient severity, which may include severe pain that seriously jeopardized the patient’s health, that could cause serious impairment to bodily functions, and serious dysfunction of any bodily organ or part. “Emergency Medical Condition” can be made by a medical doctor, osteopathic doctor, dentist, physicians assistant, or an advanced registered nurse practitioner. An “Emergency Medical Condition” cannot be diagnosed by a chiropractic physician. If it is determined that you do not have an “Emergency Medical Condition,” your PIP insurance medical benefits are limited to $2,500.00. Again, the diagnosis can only be made by a medical doctor, osteopathic doctor, physicians assistant, a dentist, or a nurse practitioner.

We all pay our auto insurance month after month and year after year. However, most of us do not know what we are paying for. The new PIP law was designed to reduce vehicle insurance fraud; however, the changes could be catastrophic to your health and pocketbook if you are not aware of your rights.