A Short Primer regarding Florida Property Damage Claims and Personal Injury Auto Claims
This Legal Guide is meant to be a simple primer regarding both Property Damage Claims and Personal Injury Auto Claims in Florida to give the lay person involved in an accident some general information on the processes for presenting his or her claims.
1. Who is at fault?The state of Florida is what is known as a "pure comparative negligence state." What this means is that any driver can be assessed anywhere from 0% to 100% liability for any accident. If, for instance, a driver is considered partially at fault at the liability percentage of 40%, then his or her settlement offers for both property damage and/or bodily injury would be reduced by that 40% and he or she would be offered 60% of his or her damages.
Some types of accidents have a rebuttable presumption of 100% negligence attached to them (e.g., a rear-end type motor vehicle accident). What this means is that the driver who rear-ends another is automatically presumed to be at fault unless there is some type of compelling evidence to show otherwise and rebut that presumption.
Parking lot accidents can be problematic regarding liability, as normally the lines of demarcation for right-of-way can be fuzzy and most of the time there are no independent witnesses, so it can come down to a he-said-she-said situation.
No matter what kind of an accident it is, it is always advisable to report the accident to the police. Although a Police Report is not considered evidence in court (it is considered "hearsay") and the police officer himself or herself will not be allowed to testify as a witness since he or she did not actually witness the accident and his or her testimony would also be considered "hearsay" (there is also a Florida statute called the "Police Officer Privilege" statute that bars police officers from testifying in any accident case, even if they witnessed the accident, unless they have given "Miranda Warnings" to the parties involved), it is advisable to report each and every motor vehicle accident to the insurance companies involved so at least there is a written record of the accident (and the insurance companies will use the police report as one of their tools in assessing the liability of the parties).
2. Property Damage - What Am I Owed?Legally, the insurance company owes you the repair amount of your vehicle. If the damages to your vehicle exceed the value of the vehicle, or meets the state percentage of the total actual cash value used to determine if a vehicle is a total loss, the insurance company does not have a duty to pay to repair your vehicle, to get you a replacement vehicle, or pay off your loan; it only owes you what is called actual cash value or fair market value, basically what a vehicle similar to yours (same year, make, model, accessories, condition, and mileage) would have sold for on the open market prior to the motor vehicle accident. If you have a loan balance or are upside-down on an auto loan, the insurance company does not owe you for the balance of your loan, either, as they are not responsible for your being upside-down on a loan if what you owe is higher than the actual cash value of the vehicle.
It doesn't matter if you had your own collision coverage with your insurance company or if you used the at-fault person's insurance company. If , however, you think the insurance company is not giving you the actual cash value/fair market value, you can do your own research into the value of your car by checking Kelly Blue Book's website, NADA's website, or do a search of want ads in your area to confirm what a similar vehicle is selling for right now and then present this evidence to the insurance company. You can also request, however, from the at-fault party's insurance company a rental vehicle for a reasonable time period until the insurance company makes an offer (or they will have to reimburse you for a reasonable rental vehicle expense during that time).
Although this is generally not recommended, you also may be able to keep the car and have a salvage title issued, but then you won't be able to register it for road use until it has been repaired. The insurance company will then deduct from the total loss of your vehicle the salvage value of the vehicle, so you won't be getting either the true estimated amount to repair your vehicle or the true actual cash value of your totaled vehicle,
3. Injury Claims - How to ProceedIf you are injured in a Florida motor vehicle accident, your first bit of business is to get medical treatment as soon as possible. No-Fault or Personal Injury Protection (PIP) coverage is a required coverage in Florida (for now, anyway, as there are rumblings in the Florida Legislature that PIP may soon be repealed).
The PIP law states that you must have some type of medical treatment within the first fourteen (14) days of the accident in order to be eligible for the PIP coverage (which covers up to $10,000.00 at 80% of any reasonable, necessary, and related medical treatment, and 60% of any reasonable, necessary, and related lost wages). If an injured person waits longer than fourteen (14) days to begin his or her medical treatment, he or she will not be eligible for the PIP coverage and will have to attempt to present the medical bills to his or her health insurance carrier, which sometimes can be problematic. Also, if the health carrier does in fact pay out for any treatment related to the motor vehicle accident injury, then it will have a "lien" against any eventual settlement for what it paid out (generally, this "lien" will be a reduced amount from the actual bill based on the contract the health insurance carrier has with the providers involved). The PIP insurance company, however, will not have a lien against any eventual settlement, so that is the preferred coverage to use initially until and unless the PIP coverage of $10,000.00 exhausts. Sometimes, there is also what is called Medical Payments Coverage on the insurance policy for the injured party, which will pick up the 20% out-of-pocket expenses that PIP does not cover. The limits on the Medical Payments Coverage are not set by law, so the limit amounts may vary.
Then, the injured party after seeking treatment within the first fourteen (14) days must obtain from a medical doctor, dentist, or other specialized medical professional what is called confirmation of an Emergency Medical Condition (commonly referred to as an "EMC"). If the injured person does not obtain an EMC (and for this, there is no time limit), the PIP insurance carrier will limit the PIP coverage limits to $2500.00 until and unless they are provided with the EMC.
After the person has completed his or her treatment (and in some cases of very serious injuries, completion of any and all treatment is not necessarily needed), the injured party presents a claim for bodily injury against the at-fault driver's/owner's insurance company. If the at-fault party did not have Bodily Injury Liability coverage (which at the time of this writing is NOT a required coverage in Florida), then the injured person can present an injury claim against his or her own Uninsured Motorist Coverage (if the injured person does, in fact, have that coverage on his or her policy). Also, if the at-fault party does not have enough Bodily Injury Liability Coverage to cover the injured party's injury claim, the injured party can also present a claim against his or her own insurance policy if there is Underinsured Motorist Coverage on his or her policy.
4. What Is My Injury Claim Worth and What Am I Owed?How much is a bodily injury claim worth? That is the $64,000 question. Each injury case is different, so there is no set answer to this question. What a personal injury attorney would do is to sit down after the injured party has completed his or her treatment, assess what a reasonable and prudent juror would assess as to the liability of the parties, how much out-of-pocket medical expenses there are, what the total lien amounts are that will have to be considered for reimbursement to either the medical providers or health insurance company involved, calculate how much lost wages there were and how much of those wages were unpaid (again, PIP will only cover 60% of any reasonable, necessary, and related lost wages), whether additional treatment and/or surgery will be needed, whether there is what is called a Partial Permanent Impairment (PPI) and what percentage of that was assessed by the medical professional, and what a jury would award for the particular injury involved. Florida tort law limits any settlement offers to the confirmed out-of-pocket expenses noted below unless there is some type of specific injury outlined by the statute: "(a) Significant and permanent loss of an important bodily function, (b) Permanent injury within a reasonable degree of medical probability other than scarring or disfigurement, (c) Significant and permanent scarring or disfigurement, (d) Death." Florida Statute 627.737. Item (b) in the statute is where the need for the PPI comes in.
Then, "the dance" begins, as the attorney will begin the negotiation process with the insurance company or companies involved by sending what is called a "demand package" to the insurance adjuster (a cover letter demanding a specific amount, copies of all medical bills, copies of all medical reports, confirmation of any PPI, an explanation of the out-of-pocket expenses for medical treatment, lost wages, and mileage related to the motor vehicle accident, etc.).
Normally, this "dance" takes several months and if a reasonable settlement offer is not made by the insurance company, the attorney may or may not recommend filing a lawsuit.
The attorneys' fees in Florida are set by the Florida Bar (they can be lower but cannot exceed the Florida Bar's guidelines) at 33 1/2 % for pre-suit cases and 40% for those cases where a lawsuit has been filed. There are some other exceptions to this based on the total amount of settlement if it exceeds $1,000,000.00.
The attorney will also attempt to negotiate any outstanding medical bill amounts and any hospital or health insurance company liens. This is very important, as both the injured party and the attorney have a duty to protect liens and no final settlement check can be issued to the injured party until these liens are taken care of. Some lienholders will negotiate their liens and accept a reduced amount and others will not.
If the claim is for Uninsured or Underinsured Motorist Coverage, this is what is known as a "first party" claim. Generally, the attorney will suggest in these cases prior to a lawsuit being filed that a Civil Remedies Notice (CRN) be filed with the state, as "bad faith" in UM cases is governed by statute.
5. Should I Retain an Attorney to Assist Me?The attorneys in this forum will always try to give you the best information possible given the facts that are outlaid. However, probably 99% of the time, the main theme you will see in any answer is to obtain whatever medical treatment you need for your injuries and then to consult with an attorney, as there is no possible way that any attorney in this forum, based on the limited amount of facts that can be given, can address the issues in full. This is not because attorneys are just trying to get your business but because we know that insurance companies don't always treat unrepresented claimants fairly.
I'm not saying that all insurance companies are going to try to cheat you by any means, however. I have handled lawsuits as an insurance adjuster for thirty-three (33) years for three (3) of the larger insurance companies in the U.S. Those companies always attempted the best they could to be fair and came up with a fair and reasonable settlement range for injury cases most of the time. However, what you must understand is that even the most reasonable insurance carriers are going to offer you the lower end of what they consider a reasonable settlement range and try to get you to take it. All insurance companies are in the business of making money and saving on costs and are not in the business of spending money like a drunken sailor. The less than reasonable insurance companies will not be as kind as some of the larger companies out there. Don't try to handle your case on your own.
Your best bet is to consult with an attorney in your area to obtain a more specific answer and get all of your legal options before deciding what to do. The attorney will also investigate all available coverages to ensure you have the maximum amount of coverages available to you. You may have some coverages on your own auto policy that can assist you. You can use the "Find a Lawyer" link at the top of this page for names of attorneys in your area. Most offer a free consultation and work on a contingency fee basis, so you won't have to pay anything up front.
Also, just as some added information, for any lawsuit regarding the at-fault driver's liability for either any property damage or bodily injury liability claims, you must remember you cannot file a lawsuit against the insurance company (Florida has a law against non-joinder of an insurance company for an insured's negligence). Generally, the only time you may include an insurance company as a defendant, other than in a derivative "bad faith" lawsuit, is for first party claims only (e.g., PIP, UM, Collision coverage cases).
6. Legal cases disclaimerPLEASE NOTE THAT THIS LEGAL GUIDE IS NOT INTENDED TO BE ALL-INCLUSIVE AND IS SIMPLY INTENDED AS A SHORT INTRODUCTION TO FLORIDA LAW REGARDING MOTOR VEHICLE ACCIDENT PROPERTY DAMAGE AND PERSONAL INJURY CLAIMS.
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