Insurance adjusters are trained how to settle claims.  They always try to settle as low as possible.  But sometimes, even in cases where they know they will have to pay a claim, they worry most about claims that include any of these factors which I call “Bell Ringers”:

1.  Claims involving despicable behavior such as drunk driving, lewd and lascivious behavior, especially involving kids, repeated misconduct, torture, or gross and reckless indifference.

2. Claims causing death, or surgery which has already been performed, legitimate use of pain killers, lengthy hospitalizations, brain damages including, loss of sight, hearing, touch, taste or smell, severe burns, scarring and disfigurement, amputations, and paralysis. This is a short list but will help you understand what types of losses I am talking about.

3. Claims  resulting in the permanent loss of a high paying good job or loss of a career.

We are getting ready for a mediation (confidential settlement conference) for one of my clients.  She was a 40 year old married woman in the front seat passenger in a car. It was broadsided, and she got hurt, went by ambulance to the ER and was released without having to have surgery, stitches or be hospitalized.  She has low back pain due to herniations and gets lumbar injections for the back pain three times a year.  She is not a surgical candidate and is not now or ever been one, does not take pain killers and cannot show any loss of income due to the accident. She owns her own business and is still working.

What is her case worth?  Since none of the “Bell ringers” are present her claim is not one which has a lot of high end worry for the insurance adjuster.  The range is somewhere a little north of her total medical bills.

Being honest  with her about the settlement value of her case has caused me some concerns. At mediation she may have such high and unreasonable expectations that she will blow the chance for a reasonable settlement, and force a trial.  The message here is to get an attorney who has experience in recognizing the “Bell Ringers” so you can get a proper size settlement.

Courts instruct juries to base their verdicts solely on the evidence  without speculating on what might be held back.  Jurors often want to know if a traffic ticket was given and conclude that if there is no proof a ticket was given, then they must acquit, or if a ticket was given the defendant was at fault.

Florida law forbids any proof on this delicate issue.  Courts reason that the opinion of a cop is irrelevant, and prohibit any mention one way or the other on this issue.   As a  trial lawyer representing plaintiffs I would like to be able to let the jury know the defendant got a ticket, but it would instantly result in a mistrial. Sometimes a defendant will want to put into evidence that they did NOT get ticketed.  Same rule applies.

I have over dinner parties with friends discussed this rule of evidence and they are always outraged, think the law is stupid, and make comments about how this doesn’t make sense.

I once tried the same case twice because of this rule.  The defendant accidentally turned left at a red light into my client riding his motorcycle, causing severe injuries.  She got a ticket for violating his right of way, and careless driving.  In the first trial, the defendant blurted out to the jury that she got a ticket.  That resulted in an immediate MISTRIAL.  In the second trial, with a new jury, there was no proof of a ticket. After hearing the case, the second jury speculated whether a ticket was given.  They concluded since there was no evidence that the defendant got a ticket she must not have done anything wrong,  and therefore returned their Verdict for the defendant.

After the trial, I got a call from the jury foreman, who had gone to the police station to look up the incident.  He was angry.  He demanded to know why I had not put the ticket into evidence.  When I explained why, he was amazed, but it was too late to fix the Verdict. Even after I explained why he still did not believe me.  I told him he had violated his oath as a juror by speculating about something that was not in evidence.

It is important to follow the law or injustice will result. A Verdict should not be based on speculation.   If you have any questions about accident cases, please feel free to call or email.

Some dogs bite other dogs and some bite people.  Who is responsible for the damages done by a dog?  Headlines this week in Palm Coast discuss the attack of 5 pitbulls in Daytona North on May 4, 2013.  The attack was so vicious the victim had to be hospitalized.

What does Brandi Bookamer need to win her case? There are several steps that need to be checked out.  First, who owns the dogs?  That is very important because the dog owner is liable for the attack. And, if there is a homeowner’s insurance policy for the dog owner, then it will pay for the loss which the owner is responsible for.  Note: Some insurance companies have begun excluding liability for dog bites in their insurance policies. They want to know what kind of dog the homeowner has.  Certain breeds of dogs are known to be more dangerous than others.  Sometimes ownership is vague.  The owner will not admit to ownership, and the dogs may not be wearing dog tags.  In that case the fact where the dogs live creates a presumption of ownership.

Next, the owner needs to have insurance.  As mentioned not every owner has insurance.  And it has been my experience that renters seldom have insurance.  So if the renter who owns the dog has no insurance are you out of luck?  Maybe.  If the landlord knows his renter owns a dangerous dog, and he dog bite happened on the premises, and there is no Warning: Bad Dog sign posted, then I’d recommend making a claim against the landlord.  His liability will depend on proof that the landlord knew the renter had dangerous dogs living at the rental.  Proof of what the owner knew  can be difficult if the landlord lives out of the area, unless other attacks have brought the danger to the landlord’s attention.  He has a duty to people coming onto his property to make sure it is not dangerous.  If he allows a dangerous dog to live there he may be liable just as if he owns the dog himself.

Florida does not exempt the first bite.  It is not “free” as some people think.  The owner of a dog is responsible for controlling it, and in rare cases the landlord can also be held liable too.

If you need help understanding your rights as the victim of a dog bite, keep in mind that the law is there to help, and you may be preventing another attack by making a claim.

I occasionally will see clients who have been in a couple of accidents within weeks of each other.  For example, I have a client who was rear ended on the Interstate in Seattle in December, 2012 and then moved to Palm Coast, Florida where she was again rear ended in January.  Who pays?  What is fair? Should she be able to collect double or what?

The law requires her doctors to apportion the damages she had in each accident if they can.  In her case, she mostly had right arm injuries from accident #1, and some neck injuries, and left leg injuries and neck injuries in #2.   Since the doctor in accident #1 was in Seattle he obviously only treated her for injuries cause by the first wreck.  Doctor for accident #2 is apportioning his time for treating accident #1 and #2, and both so there will be sensible apportioned bill at the end of her case. The same principal is at work if one of the accidents causing injuries was a slip and fall and the other was a auto case.

If it is not possible to apportion the treatment, and resulting pain and suffering what happens then?  Then both drivers are fully responsible for all injuries.  If the bills for #1 are $10,000 and the bills  from #2 are also $10,000 and the pain and suffering is also equal then each driver will owe half of her total claim.  If the at fault  driver for #1 or #2 had no insurance then my client will make a claim against her own UM carrier for the amount owed by the at fault driver who had no insurance.

This stuff gets really complicated!  Just writing about it is hard to do since there is so many possible variations of what can happen.  I suggest you definitely should see a qualified lawyer to discuss and explain your legal rights if you have been in several accidents. I once had a client who was rear-ended 3 times in 6 months.  It was no laughing matter to her.  I recommended she get a Hummer!

Stop Pain

When a client with a diagnosis of RSD/CRPS as a result of some traumatic injury (usually a minor one) comes to my office they need to know what they can do to improve the chances of getting a substantial recovery.   I am helping a client now who had a  sprained ankle in a restaurant.  The severe RSD signs and symptoms did not show up for several months.  This makes a diagnosis of RSD  harder because usually the pain and symptoms ease up as time goes by.  Hopefully the lessons learned from helping other clients will be helpful to maximize your recovery.

1.  You must be prepared for the defense that you do not have RSD.  The defense will claim that you already had some kind of painful condition before, and that you are in a state of denial about the real reasons for your RSD.  This defense may come from a review of your old medical records which for example might  include back surgery with lingering complaints of pain as you recovered. This type of pain is a red herring in my opinion.  EVEN IF you have lumbar pain, sometimes called sciatica or radiculopathy, it is entirely medically possible for a traumatic event to occur which magnifies or worsens the pre-existing medical condition.  An honest defense doctor will have to admit that a person like you,even if you have a “Failed Back Syndrome” or “Transitional Pain” following a lumbar fusion AKA arthrodesis, is also subject to getting RSD after a trauma.

2.  The “gold standard” to prove whether you have RSD/CRPS is a diagnostic test called a Triple Phase Bone scan.  This is considered the best proof of RSD/CRPS by pain management doctors.  This test is done by injecting a special dye into the body.  After a couple of hours the person is sent to get an image done of the area believed to have RSD/CRPS.  The picture will show a collection of the dye in the affected area, which is attracted to the area by the metabolism of the bones.  The test  says something like :  RSD or Osteomyelitis is causing the uptake.  A blood screen is done to rule out Osteomyelitis.  So, if your doctor has not sent you to get one of these tests, ask him to do so.

3.  There is a great book which you should get.  It is called Medifocus Guidebook on Reflex Sympahetic Dystrophy.  It is available at Amazon.com and collects all of the latest medical information about RSD/CRPS.

4.  Get a digital infrared thermometer.  Learn how to use it and document temperature differences between the affected limb and the non affected limb.  Temperatures within 2 degrees are not significant.  Take photos of the affected limb especially when there are color changes, or changes in your fingernails  or hair.

5.  Go to a doctor who specializes in Pain Management.  Doctors who are not specialists in this disease do not have the special skills, knowledge or training to diagnose the disease or treat it.  Believe it or not, but most doctors do not get any special training in Medical School or as a  resident on how to diagnose and deal with chronic pain.  They do not know that the signs and symptoms of RSD/CRPS come and go, sometimes worse than others, sometimes there and sometimes not there.   The constant is the horrible disproportionate pain, not usually caused by a minor trauma.

6.  Do not be reluctant to go see a shrink.  This terrible condition requires help on all levels, and ultimately it is helpful to have evidence  that your mind is not just playing tricks on you.  This is called a “somataform” pain disorder, or a factitious disorder.  The defense will claim it is “all in your head” without giving you credit for the fact that the pain is real, not just being faked. There are certain diagnostic tests like the MMPI-2 which are standardized.  They rule out fakers and malingerers and destroy the defense that it is all in your head.

Finally, get a lawyer who has had experience with RSD cases.  The last one I tried resulted in a Verdict of $1,320,000.  My client was thrilled and thanked me for giving him his life back.  Other lawyers had recommended that he take $200,000 and run!