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

One of the questions that often comes up is when is the best time to hire a lawyer after a crash. 

What are the pros and cons of getting a lawyer? In no particular order here are my thoughts:

PROS:

1.  Adjusters cannot call you once you have hired an attorney.  So, you do not run the risk of making a statement which will come back to haunt you later on.  If you have already made a statement, your attorney can get a copy for you.  The single biggest problem with having already given a statement is that any inconsistencies, contradictions or omissions will be magnified to make it look like you and your attorney are changing your story. For example,  if you denied the need for medical treatment at the scene, that may be used to persuade the jury that you weren't hurt by the accident, so why are you making a claim?

2. Physical Evidence can be preserved.   This includes visible things like photographs of the vehicles, crush damage, skid marks,  the scene, bruises, scars, and  photos during the healing process.  Skid or brake marks fade away over time with traffic and weather. Gouge marks left in the pavement, and damage to guardrails are fixed.  Cars which are totaled are sold for scrap and crushed, so they can no longer be photographed.  Seat belts which malfunctioned can no longer be tested.  Shredded tires are vital to proving defects if any.  Sometimes 911 calls and dispatch records are only kept 30 days then  they are recorded over, so any recordings of voices disappear into the netherland.

3.  Key witnesses can be located before they move away, their memories fade and they give statements to insurance companies without having a chance to review and refresh their recollections. Insurance companies are not required to share those statements with you.   Some witnesses do not want to get dragged into a case and refuse to cooperate after talking with the adjusters.

4. Under Florida law, you have the absolute right to choose your doctor.  A lawyer can help steer you  away from an unhelpful insurance oriented doctor. Some doctors are more open to the reality of having to give court  testimony than others.  Some doctors are more inclined to think their patients are malingering or faking injuries to get a big settlement.  

5.  A lawyer can help explain and make a claim for your PIP benefits. Although  PIP benefits are supposedly easy to get and the forms are a cinch, PIP companies deny benefits, or cut off benefits improperly.  A lawyer can assure your rights to medical and wage losses are paid.  

CONS:

1.  If you hire a lawyer he may charge a retainer to cover his time and expenses.  If  your case is meritless, you may have wasted your cash.  This risk can be avoided by hiring a lawyer using a Contingency Fee contract.  Costs and fees can be avoided.  See my earlier Blog.

2.  You lose control over your case.  Your lawyer, not you, deals with the insurance company, decides what expenses if any are needed, and gives advice to you about your case.  Ultimately you may fire your lawyer but if you do so without justification, you will owe him something for his expenses and time.

3.  You cannot settle the case on your own and avoid a legal fee.  He will have a lien on your case which the insurance company will want to honor, or they will have to pay twice.

All in all I recommend hiring an attorney within a couple of weeks after an accident.  TV ads often promote law firms with an 800 nnumber and lawyers who can talk to you 24/7.  Ads like these  create a sense of urgency.  There is no need to hire a lawyer within hours after a crash.  Time should be taken to make a wise choice, check references, check reputations, and ask around.  

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 I will occasionally discuss the law of Evidence on some  things that often create major trial problems for the plaintiffs.  A mistrial always favors the defense because they get  a postponement.  Today's discussion is based on a rule of Evidence.  Sometimes rules of law lead to unusual and bizarre results.  This one reminds me of a Rule which led Mr. Bumble,  a Charles Dicken's character in Oliver Twist  to declare:  "If the law supposes that -- then the law is a Ass."   Bumble was talking about the rule of law in Merry Olde England  which assumed a man controlled, and was therefore responsible for his wife's actions.

During trials involving traffic crashes there is one thing which is so explosive that the mere mention of  it by either side in the presence of the jury will cause a mistrial.   When a traffic accident case goes to trial, the jury always wants to know and expects someone to put on evidence :  who got the "TICKET?"

In Florida good  trial lawyers do not make a proffer of any evidence on Traffic tickets. They intentionally do not say anything about a Ticket being issued  during voir dire or opening statements and their witnesses are taught not  to mention Tickets in front of the jury. When the rule gets violated,  the judge should stop the trial and a new jury should be selected.  Requesting a cautionary instruction to the jury is not a good idea and may waive the error.  Check this out in a recent case on this point: White v Consolidated Freightways of Delaware, 766 So. 2d 1228 (Fla. 1st DCA 2000).  Here is an excerpt from the appellate court decision which revealed a very subtle and reversible defense argument.  The driver of an 18 wheeler, Mr. Dickson,  rear ended a bunch of cars.  The FHP officer did not give him a ticket.  Here is an excerpt from the improper Defense opening statement  which resulted in a reversal and a new trial:

"You'll also hear the testimony of Investigating Highway Patrolman C.C. Barclay who looked at the physical evidence, he talked to everyone who was there; I think the evidence will show that no one claimed that Mr. Dickson had anything to do with this accident at the scene of the accident. 

. . . .

After he was there for a while and had told the police officer what he saw, then he was allowed to proceed with his trip, and Mr. Dickson will tell you that the first time he heard that anybody was claiming that he had anything to do with this accident was long after, months after it occurred."

(emphasis supplied)

It is not possible to tell if this was an honest oversight of the T-word rule by Defense counsel or a gamble that  a motion for mistrial would not be made. 

Lawyers know just like everyone else that a Ticket is  symbolic of fault.  If admitted it would tell the jury who in the opinion of the traffic cop caused the crash.  Sometimes the cop witnessed the crash, but more likely got there a few minutes later and after asking around either decided to issue a  ticket or not.   His official act is seen as an objective third party point of view gathered promptly at the scene from witnesses whose recall is still fresh.  Also, the court will instruct the jury that a violation of a traffic statute is possible  evidence of negligence. 

I had the misfortune of representing a client on a motorcycle who was seriously injured by an oncoming car.  After the trial I got an irate call from the foreman: How come you did not put on evidence that the Defendant got a Ticket?  I looked it up and you did not put on any evidence.  If you had, we would have returned our verdict for your client."  I was crushed, and so was he. I told him I could not legally put on evidence and he had based his verdict on speculation, since there was no proof of a ticket, and held the Defendant Not Guilty.

Model jury instructions do not mention traffic tickets.  In fairly obtuse wording the Florida Model court instruction 2.1 merely says to the jury they should not "speculate on any matters outside the evidence."  How does a juror know what that means?  What does it mean?  To a layman, a Ticket is inside the evidence and so it is ok to want information about it, and if it is not part of the trial, they think about it. I suggest the model instruction is defective because it is vague, and I have tried cases where a mistrial occurred because someone mentioned a Ticket. How many more were verdicts entered based on speculation?  Who knows?

Generally the failure to testify in a civil action results in an inference that the testimony would have been unfavorable.  There is a  limitation on that rule that the “unfavorable inference which may be drawn from the failure of a party to testify is not warranted when there has been a sufficient explanation for such absence or failure to testify."  Plaintiffs are caught in a no man's land about this because they cannot explain  why they have not put on any evidence about the ticket.

Rule Regulating Florida Bar 4-3.4(e) prohibits lawyers from arguing facts that are not in evidence. Rule 4-3.5(a)  prohibits lawyers from seeking to influence jurors except as permitted by law or the rules of court.

Sometimes it is a necessary to request a special instruction when the Model jury instructions are vague or simply do not cover the issue.  A special instruction was requested (and then abandoned) in one case where a citation issue came up at trial here.  

Many of the standard instructions were crafted before jurors were allowed to read instructions  and the law was less complicated.   There is a great discussion on using special instructions in Ryder TRS, Inc.  v  Hirsch, 900 So. 2d 608 (Fla. 4th DCA  2005).  So long as they do not confuse or mislead the jury, the instruction is within the discretion of the trial court.  Trouble is many Judges don't like to give special instructions even if they are not confusing or misleading.I think the time has come in Florida to request a new special jury instruction in cases where a jury might reasonably expect evidence on the issue of whether a ticket has been issued.  Here is my stab at a special jury instruction in these type of cases:

"You have been instructed not to speculate on any matters "outside the evidence."  That includes speculation about whether a traffic ticket or citation was or was not issued to any party in this case."

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During the last two weeks here in Flagler county the story of a horrific truck crash, totally avoidable unfolded before a local jury.  The jury  listened spellbound to the story of  loving couple who moved here to live out their golden years together.  That came to a sudden end in the blink of an eye when an overworked, angry, truck driver went barreling through a stop sign at 55 m.p.h and obliterated their van. She was killed and he was airlifted by helicopter to a nearby hospital.  Sadly he never even got to say goodby it happened so fast. As the Plaintiff said, "It is hard to beleive your life can change so fast."

Their case was reported by Frank Fernandez of the Daytona News-Journal.  On November 11, 2009 the jury heard the opinion of an almost unbelievable "expert" accident reconstructionist from south Florida.  It was his opinion that the truck driver was a "victim" because Flagler county had paved over a few rumble strips.  He felt the fact that there were several signs warning of the dangerous intersection was not good enough.  Mr. Fernandez wrote about it and there were numerous comments posted before final arguments started today. This type of defense argument had to inflame the jury.  In my opinion it should result in a higher than usual damages award. It was very risky defense  to try and pull over a quick one on the jury.

There were other  aggravating circumstances:

• the driver was on the road in excess of the maximum number of allowable hours,
• the sod company for whom he worked had no idea of his lousy driving or employment record, because they did not pay $10 to get it,
• he refused to cooperate with a mandatory DOT drug test required because of the fatality, 
• the defendants refused to accept responsibility,
• the driver was overworked and tired, and
• His company had no system to monitor his hours so did not know whether he was driving too much.

More than 20 comments by readers who followed the trial in Fernandez's column  were available online first thing this morning. The overwhelming majority thought the accident reconstruction expert was a joke and implored the jury to ignore his testimony.  I don't know whether the Plaintiff's very fine trial lawyers Steve Pajcic  and Tad Griffin of Jacksonville were aware of their comments when they prepared for final summation.  Mr. Pajcic made the final argument.  He asked for almost $10 million in damages, which was in his opinion fair given all the circumstances.  I agree and hope the jury agreed with him too. I thought it was worth more.  There was a lot of evidence to support the request.

Knowing how much to ask the Jury for  is a delicate, tough and lonely decision for any plaintiff's trial lawyer, no matter how skilled,  and experienced he is.   If he asks for too little, the jury award will not be adequate.  Too much and the jury will be insulted.  The venue should and must be considered too.  In a place like Flagler county, jurors may feel a lawyer is asking for too much, whereas under the same facts in south Florida, another jury may easily feel at home with a large damage award. 

 The "comments" from readers of Mr. Fernandez column on this case might be a good indicator of what the jury will do with the damage award in this case.  We'll know the results soon.

*******

P.S.  Late in the day on November 12, 2009 the Jury returned a Verdict for $5.1 million according to the latest column by Frank Fernandez.

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Last week I posted a blog about Leaving Money on the Table.  Today, I am discussing something much more exciting and equally as interesting:  finding extra insurance money.  The starting point again is Uninsured Motorists coverage, also known as under-insured motorists coverage.  Uninsured motorist coverage is like standby insurance in case you, a family member or someone in your car gets hurt by a driver with no insurance, or not enough insurance.

In today's tough economy lots of people are driving bare, with no insurance. Driving without the mandatory insurance can result in a suspension of a driver's license.  Continuing to drive after suspension of driving privileges can land a driver in jail. Letting someone drive who has a suspended license may result in the seizure and forfeiture of the vehicle under the Florida Contraband and Forfeiture Act. So, people who need their cars should think twice before doing a favor by letting a suspended driver use it.

I can't tell you how many times a client has come in and says he thought he had "full coverage." It often turns out he has the bare bones minimum policy.  When I hear this I make it a point to carefully question him about how his policy was issued.   In Florida all that is required is $10,000 in property damages and personal injury protection (PIP).  Liability and UM are not mandatory.

UM insurance is bought either by the company you work for or from your own insurance company.  It is intended to protect you if someone hits you without any or enough insurance. If you were injured while driving a company vehicle by another driver who was uninsured or underinsured you should check with your company to see if it ever signed a written rejection of UM coverage.

Whenever a new liabilty insurance policy is issued a written rejection or election about UM must be made. Florida auto insurance law has changed this simple rule into a complex legal maze.  The insured must decide:

• Do I want any uninsured motorists coverage? (Y/N) If NO, a Rejection is signed. The insurance company is off the hook if it gets this decision in writing.
• If Yes, do I want to buy UM coverage for the same amount as my liability coverage or some lesser amount?
• Do I want to stack my UM coverage?

The statute is FS 627.727(1) which in part reads:

"(1)  No motor vehicle liability insurance policy which provides bodily injury liability coverage shall be delivered or issued for delivery in this state with respect to any specifically insured or identified motor vehicle registered or principally garaged in this state unless uninsured motor vehicle coverage is provided therein or supplemental thereto for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom. However, the coverage required under this section is not applicable when, or to the extent that, an insured named in the policy makes a written rejection of the coverage on behalf of all insureds under the policy..."

The statute goes on to allow only the lessee decided whether to accept or reject UM coverage if a car is rented for more than one year.

So what does this legal mumbo jumbo mean?  Well, if your own insurance company does not have a written rejection in its file from you,  (or your employer) then it is on the hook for any damages the uninsured driver caused you.  It is as if your own insurance company gave you extra insurance for free.  It cannot bill you for the UM coverage after the claim as a condition to providing it to you.  That was the exact holding in Mercury Insurance Company v Anatkov, 929 So.2d 624 (Fla. 3rd DCA 2006).  Better yet, once the insurance company denies you UM benefits, it is required to pick up the tab for your attorneys fees too!  And if your employer  did not sign off on getting UM coverage, you can make a claim for UM benefits through your company's liability insurance company.  That was the holding in Travelers Ins. Co. v Quirk, 583 So. 2d 1026 (Fla. 1991).

Bottom line:  If there is no signed rejection of UM coverage, your own insurance may have to pay you uninsured motorists benefits.  In a case where serious injuries have occured, the rejection should always be checked.

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A young man I represented was involved in a horrific accident and lost a leg.  He was on his motorcycle and was run over from behind by a drunk driver.  Worse, the drunk driver was uninsured.  This was not surprising to me since In Florida about one in every four drivers are "uninsured."  Chances are good that if you are in an accident in Florida an uninsured motorist will be at fault.  They are the biggest road hazards going.    What was surprising was that the young man's father, with whom he lived, had paid for $100,000 in UM insurance but would not let his son make a claim for uninsured motorists benefits.

Why wouldn't he let his son make a claim?

• His father's reasoning showed a lack of understanding of the nature of UM insurance and how insurance companies set their rates.   
• Basically, every insurance company decides to takes certain risks based on statistics. 
• They know what percentage of drivers on the roads are uninsured, and of that group statistically how many of them will have a wreck. 
• They do some sophisticated math and calculate their premiums, figuring how much they need to charge to cover all of their expenses and their losses, and still make a profit. This part of the insurance business is done behind the scenes and is called underwriting.  
•  When they issue a new insurance  policy they build their profit and expenses into the  premium.   They collect enough from a large pool of people to be able to pay off the losses on a few and still turn a profit.
• They decide that they will make enough money on those drivers who are NOT in accidents with uninsured motorists to cover any losses they will sustain on their  own insured drivers who do make claims.

So in this case, the father had paid for insurance and would not let his son make a claim.  To me that was like not making a claim for insurance if your house burns down.  There must be something else going on so I decided to investigate further.  The father was of the mind that it was improper to make a claim when he personally did nothing wrong, even though his son was injured by an uninsured driver.  The father thought of this as a "frivolous claim" and the uninsured motorist should pay, not his UM company.  This mental hurdle was too big and the father never let his son make the claim.  I said, "Who needs the money more, your son or Prudential Insurance?" He had never made a claim in over 49 years and did not want to blemish his perfect record.  (It's as if we have the strange idea that we owe premiums to insurance companies, but they don't owe anything back.)

Turns out the father was afraid his own insurance premiums would go up, or he might get cancelled or they might not renew if he allowed his son to make a claim.  I suggested that the father call his own insurance agent and ask whether, based on this one claim, they would cancel his own insurance or increase his premiums for the same coverage. He still refused to budge.  Gosh, if he wasn't going to allow his son to make a claim I could not imagine any circumstances when he would make a claim for UM benefits. 

Cancellation of an insurance policy is serious business.  It makes it much harder to get new coverage.  Increasing premiums just because of a single claim is also serious.  Both cancellations/nonrenewals and premium increases are goverened by Florida laws.

FS 626.9541 contains a list of unfair claims practices which includes:

3 a. Imposing or requesting an additional premium for a policy of motor vehicle liability, personal injury protection, medical payment, or collision insurance or any combination thereof or refusing to renew the policy solely because the insured was involved in a motor vehicle accident unless the insurer's file contains information from which the insurer in good faith determines that the insured was substantially at fault in the accident.

b. An insurer which imposes and collects such a surcharge or which refuses to renew such policy shall, in conjunction with the notice of premium due or notice of nonrenewal, notify the named insured that he or she is entitled to reimbursement of such amount or renewal of the policy under the conditions listed below and will subsequently reimburse him or her or renew the policy, if the named insured demonstrates that the operator involved in the accident was:

(I) Lawfully parked;

(II) Reimbursed by, or on behalf of, a person responsible for the accident or has a judgment against such person;

(III) Struck in the rear by another vehicle headed in the same direction and was not convicted of a moving traffic violation in connection with the accident;

(IV) Hit by a “hit-and-run” driver, if the accident was reported to the proper authorities within 24 hours after discovering the accident;

(V) Not convicted of a moving traffic violation in connection with the accident, but the operator of the other automobile involved in such accident was convicted of a moving traffic violation;

(VI) Finally adjudicated not to be liable by a court of competent jurisdiction;

(VII) In receipt of a traffic citation which was dismissed or nolle prossed; or

(VIII) Not at fault as evidenced by a written statement from the insured establishing facts demonstrating lack of fault which are not rebutted by information in the insurer's file from which the insurer in good faith determines that the insured was substantially at fault.

c. In addition to the other provisions of this subparagraph, an insurer may not fail to renew a policy if the insured has had only one accident in which he or she was at fault within the current 3-year period. However, an insurer may nonrenew a policy for reasons other than accidents in accordance with s. 627.728. This subparagraph does not prohibit nonrenewal of a policy under which the insured has had three or more accidents, regardless of fault, during the most recent 3-year period.

Thus, the insured has major league protections against an insurance company which tries to cancel or non-renew, or which increases its premiums after an accident which the insured was an innocent party to.  Violations like these open the insurance company up to possible punitve damages and attorneys fees.

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