Palm Coast Injury Law Blog : Florida Personal Injury Lawyer & Attorney : Philip J. Chanfrau

There are a lot of insurance companies in Florida.  They beat each other up in their ads about  the great services they provide to their insureds at cheap rates.  Miss a payment and you get cancelled.  But when it comes time to make a claim for accident benefits under a Personal Injury Protection policy (mandatory in Florida), some scatter like roaches when the lights come on. Here is an example of poor services from the Lizard company based on a real case so you can decide whether you want to buy Lizard insurance.

In early December, 2011  KD was on her way home with a pizza  from the pizza parlor looking forward to a quiet evening with her husband, maybe watch a movie on TV together.  She never made it home.  She was hit head on by a drunk driver on her side of the road.  It changed her life.  She spent the next 4 days in the hospital recovering after bilateral surgeries on both arms and a broken collar bone.

The day she got home from  the hospital she got a call from the Lizard insurance company.  It had sold her a PIP car insurance policy and promised excellent insurance services. They  already had a claim number and took her recorded statement, learned all about her claim and told her that she would have to wait for another Lizard employee to call her, and then she could get her claim for benefits officially started. They said the other Lizard employee would call the next day.

Despite actually knowing about the claim, the Lizard did nothing but put the statement on the shelf. It should have assigned an adjuster who would have promptly mailed her claim forms, but did not do so. That was 30 days ago, and the Lizard never called and she never heard from another soul at the Lizard.  Her claim was not started, and under the law the Lizard does not officially have to do anything yet because it does not have her application form on file, because it failed to send her the claim form. So, the Lizard foot dragged opening her  claim file to the detriment of KD. 

On December 19, 2011, the hospital where she had surgery sent the Lizard a $48,000+ hospital bill.  That should have been a wake up call to the Lizard that she had a claim to be paid.  The hospital had a claim number and knew exactly where to send their bill. On December 30, 2011 I called the Lizard and tried to talk to the adjuster, Jaquelyn Hughes, but she was out until January 3, 2012.  So my office  sent her a Fax to call and start the PIP claim.

On January 3, 2012 Ms. Hughes was still out. Her voice mail said still had not changed from the week before.  My office  called back on January 4, 2012 to try to speak to her.  She was still "out" so I asked for her supervisor.  Her supervisor is "out  of the office until January 10, 2012.  I left a message asking for the Supervisor's supervisor, Lisa Torello, to call me back. 

In the meantime I faxed copies of medical reports and lost wage documentation to the Lizard.  I asked a temporary adjuster to fax copies of the PIP claim forms.  She said the Lizard will not allow her to send the PIP forms via fax or email, but she would mail them to me.  They should have been mailed 30 days ago.  But, by foot dragging, the Lizard does not have to provide services KD paid for.

Other issues are still coming up.  I am sure this will work out eventually, but KD should not have had to go through all this.  She has decided to change from the Lizard to another company.  She has the right to do that without losing her benefits from the Lizard because her benefits vested (locked in) when the accident happened.  Her benefits locked in then because her PIP policy was in full force and effect on that date.

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There are a lot of attorneys in Florida.  According to the Florida Bar there are more than 90,000 of them  in Florida.  How do you know which one to hire for an accident injury case? The Bar association has leveled the playing field for you to a certain degree. 

1. It has passed rules which tell you that you have the right to get a Statement of Client's Rights before signing any contingency fee contract. This form is Mandatory.  It was prepared for use exclusively in contingency fee personal injury type cases.  So this is standard, just like all cars have 4 wheels.
2. The rates charged by accident injury attorneys are also standardized.  Just like the 4 wheels again. 
3. all lawyer advertising must be approved by the Bar. 

What is not standard?

• Ability of the attorney.  In Florida lawyers who are fresh out of law school, who have never been in any kind of case before, can legally handle first degree murder trials, crashes involving 18 wheelers, medical malpractice cases involving hospitals, and lousy doctors, public offerings, and other highly complex legal matters.  Some attorneys handle everything they can, while others limit their cases to a certain area.  Get one who limits his or her type of cases.  You would not want a general practice doctor to do heart surgery...Same thing with personal injury cases. There are attorneys in Flagler County who advertise themselves as Personal Injury attorneys who have ZILCH for experience.  Most prospective clients are afraid of offending the lawyer so don't even ask about trial experience.
• Budget. a lot of what goes for name recognition on TV, the internet, and everywhere in between depends on the size of the lawyers budget. Some TV lawyers spend millions of dollars and get lots of cases. Do you want to be another number on their shelf?
• Experience and judgment.  These two factors are important enough that I recommend questioning your prospective attorney about his experience in cases just like yours.  Has he been to trial?  What is the highest verdict he got?  How long ago?  Was he lead counsel on the other case?
• Accessibility:  I give my clients my personal cell number to call me. Other lawyers never even talk to their clients- they let their staff do it.  Legal issues cannot wait for days or weeks to be answered and you deserve the right to an answer from an attorney, not the paralegal who never went to law school.
• integrity:  A lawyer knows there is a lot of competition for cases like yours.  He should be honest with you in his evaluation of your claim.  He should not sugar coat your case so that you hire the lawyer with the biggest evaluation.  There are always potential defenses: two sides to the story.  His evaluation needs to make sense to you.
• Clarity:  This is very important.  You, the client, should be able to understand the  major legal arguments in favor and against your case.  If he cannot explain them to you in clear and understandable ways, maybe you should ask yourself, how is he going to do that for a jury?

Knowing how to hire an attorney is the first step in the successful completion of a legal fight.  I have 40+ years of experience and would be happy to discuss your case for free so you can make an informed decision.

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Drunk drivers cause a lot of accidents with injuries and death.  What are the steps taken by the criminal justice system to make them pay? Just because you were in a wreck does not automatically mean there will be DUI charges.

If you have been the victim of a drunk driver you should expect to have a conference with the State Attorney within a few weeks after the wreck.  He represents the State, not you, but might be able  to indirectly help you.  During the interview with the victim, the State Attorney will ask basic questions about the accident, and should also find out how seriously you were hurt.  If you have evidence to show him, bring it to the conference.  He will want copies of your hospital and doctors' bills, photographs of your injuries and some idea of your injuries.  If you have wage losses then let him know about them too.

Once the State Attorney hears all of the evidence he will make a decision about whether to charge the suspect with  DUI, or maybe reckless driving instead. The State Attorney will be getting toxicology information from the lab based on blood alcohol or other chemical tests done shortly after the wreck.  He will know for example whether the suspect has a bad driving record, including prior DUI arrests and convictions.

So how does this help the victim?  The state of Florida has adopted important victim's rights legislation which gives  victims of  crimes the right to know about all of the important stages of the criminal prosecution.  You might be able to get a suspect to agree to pay you restitution for the losses you have as part of any plea deal.  The State Attorney is not a collection agency for victims, but should be willing to at least keep you informed.  The victim has the right to go to the sentencing and tell the judge and the Defendant what he did to you, and how much it means for him to be sent away or pay restitution.

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Medicare pays doctor's bills, hospital bills and nursing home care.  If the Medicare patient needs these types of medical care because of an accident, Medicare pays on the expectation that at the end of the case, Medicare will be reimbursed out of the settlement.

One of my clients is a Medicare recipient.  He was injured about 18 months ago and all of his medical bills, including his hospital, emergency room, nursing home charges and doctors bills were submitted to Medicare.  They totaled over $250,000.  Medicare paid them at a reduced rate, and has a lien on the settlement for close to $100,000.

So how does medicare's lien get paid off?

Medicare has contracted with MSRPC to handle its worker's compensation liens, and third party liability cases.  When the case settles, MSRPC reviews the final settlement paperwork, and then reduces its lien pro-rata for the costs of collection paid by the Medicare recipient. In other words, if the Medicare patient paid 33 1/3% to his attorneys, then medicare will reduce its lien by 1/3rd.  MSRPC will send a letter within 65 days after the case settles to advise what the exact lien amount is, and that amount must be paid within 60 days.

There is no federal statute requiring that Medicare's name be included on the check.  Medicare law requires the insurance company to notify medicare (MSRPC) of the claim, and if it does so, the insurance company has satisfied its obligations.  The patient's obligation is to pay the lien.  If the patient does not do so, Medicare can deduct the cost of the lien from his future Social Security checks or deny future medicare benefits. 

Right now only Worker's Compensation benefits are included in the statute.  But, attorneys handling liability claims in general are following the same settlement procedure model that is required in all worker's comp cases.  Also, MSRPC wants people who are almost 65 to advise Medicare of a liability claim so that Medicare can be aware of it.

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It would be a miracle if each person who negligently or carelessly caused a bad accident with injuries had plenty of insurance.  But they don't.  Sometimes my clients get a settlement offer for the full amount of the insurance policy and want to do an asset search before deciding to accept the insurance and drop the claim.

There is a lot of bad information about asset searches.  From my experience, they are not worth the money, not accurate or reliable.  First of all they cost several hundreds of dollars.  The validity of the search is misleading.  Why:  Because the search leaves out a whole tun of stuff.  It is impossible to know if the Defendant has a big trust, bank accounts, or stock brokerage accounts, or jewelry.  Those types of assets are not public record.  Deeds to real estate can be found, but who knows where to look?  An asset search in Flagler County will not reveal deeds owned in Volusia County.

Getting the Defendant to sign an affidavit disclosing assets is also unreliable.  Even if they agree, how can you REALLY know the defendant is telling the complete truth?

Also, if you insist on finding out the true assets, it may take  a final judgment before you can get subpoenas issued to know what the defendant owns.  Getting a final judgment may take a year or two.  During that time you do not have the use of the settlement, and are stressing out over a trial.Is it really worh it?  Unless you are suing Donald Trump, I don't think so.

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Lots of people have driver's licenses.  Most of them are physically and mentally able to take control of a car and drive it.  Due to momentary distractions they cause accidents.  They are texting, talking on their cell phones, rubber necking, listening to the radio, looking at the pretty girl in the car next to them,etc.

Sometimes the person driving is not medically able to drive and continues to drive anyway.  All  sorts of medical and mental problems can interfere with driving ability.  Like near blindness and black out spells, delusions, etc.  When those sorts of problems are present, the driver should know better than to try and drive. In fact, family members and doctors should and often do report them to the Florida Department of Motor Vehicles in Tallahassee.  The report is confidential and will result in an investigation.  It may require the driver to go through a driving test, or to get a report from the family doctor.  If the license is pulled, they can not drive anymore.

The loss of a license is a terrible inconvenience.  It is the loss of independence, a change of life, and is a discouraging part of life.   There is a moral duty to turn in suspected incompetent drivers but family pressures often make the family members look the other way.  Florida law allows ANYONE to report a suspected bad driver to the Department of Motor Vehicles.  Any and all reports are confidential. Here is a link to the official website which tells all about how to report the suspected incompetent driver to DMV.

As the holiday season approaches, it is a good time to be thinking about bad drivers.  I hope you and your loved ones not only survive, but actually enjoy Christmas this year!  If you have been worried about a loved one's ability to drive safely I encourage you to consider asking DMV to get them checked out.

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I personally oppose a system of government which showers special interest groups with favors.  It is now abundantly clear that the Florida legislature, showered the doctors in Florida with favored treatment in 2003 when it enacted caps on damages in medical malpractice cases, based on bogus information from the American Medical Association.

What is a cap on damages?  A cap is a legislatively dictated maximum amount which can be granted by a court of law no matter what the jury says the damages are.  For instance, if a woman dies after delivering a healthy baby boy when the doctors butcher her insides and causes her  to bleed to death, a question comes up about how much her surviving son should get for the loss of his mom.  This very thing happened in the case of the Estate of McCall v US, when the mother died in 2006. The court awarded $2,000,000 in damages.  It was later reduced to $1,000,000 because of the cap which the legislature set in 2003.

How did the legislature justify the cap?  It based its decisiion on bad information supplied by the American Medical Association.  The AMA said  1) Florida was a "crisis" state and doctors were getting sued so much they were leaving to go somewhere else, and 2) average verdicts in Florida against doctors were so high that they could not get affordable malpractice insurance.

It should come as no surprise that both points were wrong:

• Accounting Office, No. GAO-04-124, Physician Workforce: Physician Supply Increased in Metropolitan and Nonmetropolitan Areas but Geographic Disparities Persisted (Oct. 2003), at 23, available at http://www.gao.gov/new.items/d04124.pdf (finding that, from 1991 to 2001, Florida's physician supply per 100,000 residents grew from 214 to 237 in metropolitan areas and from 98 to 117 in nonmetropolitan areas, or percentage increases of 11 and 19, respectively) 

• U.S. Dep't of Justice, Bureau of Justice Statistics, NCJ 216339, Medical Malpractice Insurance Claims in Seven States 2000-2004 (Mar. 2007), at 1, available at http://bjs.ojp.usdoj.gov/content/pub/pdf/mmicss04.pdf (finding that nearly 43 percent of Florida medical malpractice insurance claims were closed with a payout of combined economic and noneconomic damages of less than $100,000, two-thirds under $250,000, and only 5.5 percent had a payout of more than $1 million).

In other words, there was not  a crisis to justify caps on medical malpractice verdicts in 2003. Shame on you legislators who take away peoples' rights and give favors to special interest groups like doctors.

The battle is not over.  The Florida Supreme Court has been asked to review the McCall case and the  statute and tell us if it is constitutional or not. 

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An adjuster for a major insurance company (think of the lizard) sent me a letter about injuries in a case we are trying to settle.  He said that my client was not entitled to a settlement because he had previous back treatment.   This startled me because of his obvious misunderstanding of the law concerning accident cases.

There is a major difference between accident insurance coverage and health insurance coverage.  One of the concepts which comes up in both types of insurance is "pre-exisitng conditions."  This is fancy language regarding medical conditions which existed before the policy went into effect.  A health insurance company is entitled in most cases to "exempt"  or "exclude" having to pay for any bills due solely to treatment of conditions which it excluded in its policy, 

On the other hand, an accident insurance policy cannot exclude having to pay for  treatment of an injured body part even if the affected body part was previously injured or in bad shape due to wear and tear, old age or a congential defect.  Any injury to the body has to be paid for by an accident policy even  if the injured or diseased body part had  a "pre-existing" condtion..  For example, a 50 year old who is rear ended probably has something called "DDD" meaning degenerative disc disease.  As we grow older, the bones and discs in our back undergo changes due to the aging process.  They are more vulnerable to injury by accident.  Bottom line:  any injury which is caused by another person must be compensated for by the accident insurance company.  If the injury was caused by an auto accident, and permanently aggravates or worsens the pre-exisitng condition, then the at fault driver owes you for your lifetime of pain and suffering, in addition to lost income, and medical bills.

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I am very angry about a law on the books in Florida.  Florida statue 768.735  forbids a court from letting a Jury know that no matter how vile, disgusting and unacceptable the Jury finds the  behavior of the Defendant to have been, that the court will after getting their Verdict chop it down if it is more than 3 times the compensatory damages.  This law makes me mad because I have always respected Juries.  I have found them to be the absolute bedrock of fairness.

Now, the Florida legislature has basically said:  We don't trust our fellow Floridians who sit on a Jury to do what is fair.  Not only that, we will not even let the Judge tell them we don't trust them!

I have a case under advisement. YOU know the type of case where you get so angry at what the Defendant did, it makes you sick to your stomach.  Disgusting. 

No wonder some people do not like the legal system.  The search for the Truth has taken a dive.  Thanks to the legislature. Big Business has bought them off.

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