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

A few days ago I exchanged emails with a potential client who had been rear ended at a red light by a truck.  These same rules apply even if you were on a motorcycle. The main thing he wanted to know was "Do I have a case?"  This question comes up a lot and is best answered by going through a checklist with me.

1. Were you seriously injured? A "serious" injury is a prerequisite to having a case. In layman's terms this deals with the amount of DAMAGES which can be recovered.  Pictures of the vehicles tend to show whether or not a crash was serious.  If there is very little damage then the likelihood is that there is no case.  On the other hand a roll-over collision which totals a car is probably indicative of a case.   The law looks at "Serious" and defines it in terms of injuries to  the passengers.  It means the injured person must have one or all of these things to have a case:

• either a significant and disfiguring scar; or
• a permanent (forever) injury of some kind, usually to the bones and ligaments and soft tissues, but it may include headaches alone;
• or a death.
• if none of the above then you have a case only to get your medical bills and your wage losses (if any) in excess of those payable by your own insurance company

If the answer to any or all of these is YES, then this is the next question I ask:

2. Is there any insurance to pay for your medical bills, lost wages and other damages?  This has also been known as the "Deep Pocket."

• insurance means that the at fault driver has liability insurance, to pay for the damages he/she caused by their negligence, or
• backup insurance, known as "uninsured motorists" or underinsured motorists coverage which protects against negligent drivers.  It has been estimated that 40% of all drivers in Florida have NO INSURANCE.
• medicare and group health carriers will have the right to get any money back they payout for your medical care due to the accident.  This is called a "Lien."

If the answer to 1. and 2. is yes, then the next question I ask is

3. Who caused the accident?

• Liability is another word for responsibility, or fault.  Florida is not a Black or White state. There can be more than one person who caused the accident and judging fault can be tricky.  Just because a ticket was given out does not mean the ticketed person was at fault.  See my earlier blog about the T Word.
• If the liability is "iffy" or unclear, such as where each driver claims they had the green light, then that enters into the decisions.  It makes me wonder how much time and effort it will take to get a fair settlement. 
• Independent eyewitnesses are golden, as are scene photos showing skid marks, and crush damages.

4.  Finally, there are some intangibles.  Do I think my client will come across as deserving?  Or as someone who is trying to get something for nothing?  Does what they say make sense?  Do they have unreasonable expectations about what they will get out of the case?  Have they been injured before? How serious is the injury?  It's hard to tell if it has only been a week or two.

Bottom line:  If you were in a wreck, at the very least call your doctor right away and get some treatment started.  What seems like a nuisance injury can be very serious.  Men are usually macho and try to tough it out and make the mistake of not getting in to see a doctor for weeks or longer.  This makes it harder to link the accident to the injury.  Take photos of the car and the scene and keep them for later on.  If there are witnesses ask them for a brief written description of the accident.

I do not charge for initial consults with clients and can explain this in greater detail during an office conference. 

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This important question is at the top of every client's list.  News  of multi-million dollar verdicts offer little or no explanation of how the jury was able to come up with huge amounts.  People watching or reading get the impression that juries are out of control, and that plaintiffs are getting rich on flimsy cases.  People think their insurance premiums are skyrocketing based on ridiculous juries and their greedy trial lawyers, or lazy judges.  There is a legal system and Courts all over the land know there are maximum amounts of damages which juries can award.  Too bad the Media doesn't know.

It will come as a surprise that the Code of Hammurabi, an ancient Code from Babylon, set the first limits on retribution.    At Code section 196 we find the famous "eye for an eye" quote. "If a man put out the eye of another, his eye shall be put out."   From that time on damages had to be equal to what was taken away: an eye for an eye.  The injured person gets back what was taken away.  Since the award is for a whole lifetime of problems he gets compensated for those problems now instead of coming back every couple of years for more.

The Florida  Model Verdict form defines the 3 types of damages you can get into 1) past and future medical bills, 2) past and future lost income or wages, and 3) quality of life losses for the past and future.  For example if a person has been injured and can't work, has to have surgery, and will never be able to use their right arm again for the next 30 years, all of the fact are given to a jury and the jury literally fills in the blanks of a Verdict form.

If the Verdict form is filled in wrong, with too little or too much money, the Lawyers get to argue to the Judge why it needs to be fixed, and the Court has the discretion to adjust the award up or down. If not done correctly there can be an appeal.

So the next time you hear about a large damages award, you will know the Jury and the Court were just filling in the blanks and doing their  duty.  Shame on the media for not telling you the back story.

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Daytona Bike week is around the corner.  Its an exciting time for bikers coming into the area.  Most will leave with great memories.  Experience tells us some will leave with most of their body parts, and some will not leave at all.  Some will lose friends and have damages to their motorcycles.  NHTSA estimates the chances of a fatality on a motorcycle are 30 times higher than in a car.  I recall one biker who had suffered a traumatic castration.  You should have seen the look on his face when he learned there was only $10,000 of insurance.

Out of curiosity I called a Florida agent who offers biker insurance through six major carriers.  Based on what she said, I think there is a knowledge gap about UM (Uninsured or underinsured motorists) coverage.   This whole area of UM and rejections was discussed in another Blog.

Here are some of the highlights of what I found out:

• The agent could not explain the legal differences between UM and HMO/Group coverage
• Bikers think they can skip getting UM when they have a major medical  or HMO policy to cover their medical bills

If the agent doesn't know,  how is a Biker supposed to make an informed decision to buy the UM or not?

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When we were little kids our moms taught us some important lessons.  She did not know it but some of the lessons she was teaching us about included the basics of  foreseeability:  look both ways before crossing the street, don't run while carrying sharp objects like knives or scissors, don't play with fire.  All of these lessons included  the basics of foreseeability.  In each instance we were being warned bad things could happen if we were not careful under the circumstances.  We were taught to foresee, or look ahead.  As we mature we learn more adult lessons about life and human nature until as a "reasonable man" we are expected to know and follow  most of life's little lessons.

There is some confusion and maybe misconception about the law of damages and foreseeability.  Once the Plaintiff has proven the defendant's conduct was a cause of  the injury, the Plaintiff is entitled to a verdict for all of his damages which were caused by the negligence, even if they were entirely unforeseeable. In an RSD case, for example, the development of searing pain caused by this horrible condition may not be foreseeable, but the defendant must pay for it if he caused it.   I think some attorneys need to refresh themselves on this rule.  See Silva v Stein, 527 So. 2d 943 (Fla. 3rd DCA 1988). The case is an extremely instructive and important  one clearing up the apples and oranges difference between foreseeablity and liability, and foreseeablity and damages.

The following is an excerpt from Professors Prosser & Keeton  in their 1984 book on the Law of Torts, pg 291-292:

"It is as if a magic circle were drawn about the person, and one who breaks it, even by so much as a cut on the finger, becomes liable for all resulting harm to the person, although it may be death. The defendant is held liable when the defendant's negligence operates upon a concealed physical condition, such as pregnancy, or a latent disease, or susceptibility to disease, to produce consequences which the defendant could not reasonably anticipate. The defendant is held liable for unusual results of personal injuries which are regarded as unforeseeable, such as tuberculosis, paralysis, pneumonia, heart or kidney disease, blood poisoning, cancer, or the loss of hair from fright. The defendant of course is liable only for the extent to which the defendant's conduct has resulted in an aggravation of the pre-existing condition, and not for the condition as it was; but as to the aggravation, foreseeability is not a factor. One of the illustrations which runs through the English cases is that of the plaintiff with the ‘eggshell skull,’ who suffers death where a normal person would have had only a bump on the head; and an obviously related rule is that the defendant who kills another must take the chances, as to damages for the death, that the other has a large income, although the defendant has no reason to expect it."

This rule comes up in final arguments to the jury in cases where one would not expect the consequences of the defendant's negligence to be as great as they turned out. The jury needs a lawyer to explain causation in the context of the injury which the defense is going to argue is being blown out of proportion to the reality.  I have an interesting case I am working on now where my client was rear-ended and suffered a heart attack at the scene.  Other cases I've handled included clients who developed RSD, have had repeat cervical fusions, and various types of mental injuries such as PTSD. 

The lesson is that if the defendant caused the injuries it is no excuse or defense to say that they could not have been anticipated.  You are not expected to be as tough as Arnold Schwarznegger.

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