THE FLORIDA LAW BLOG

BAD THINGS THAT LAWYERS DO !

Here are five bad things that lawyers should not do, and if they do, you should probably hire someone else.

(1)LAWYER SUGGESTS CALLING FROM THE ACCIDENT SCENE

Some television commercials advise you to call a lawyer, or some type of lawyer referral service directly from the scene of a car accident. Their reason for giving this advice, is probably that they want to get their lawyer on your injury case before some one else does. What they don’t tell you is that there is no valid reason to call a lawyer or referral service from the scene. They further don't tell you that you have four (4) years from the date of the accident to bring a claim for your injury. Actually calling a lawyer or referral service from the scene may distract you from what you should be doing, taking photos with your smart phone, getting witness statements, and speaking with the police or paramedics about what happened. Further if your case goes to trial, the fact that you called a lawyer or lawyer referral service from the accident scene may be used against you by the insurance defense lawyer. Your primary objective should be to see that you and your passengers are all ok, and if you or anyone is injured, to seek appropriate medical care at an emergency room or with a doctor of your own choosing. Under Florida law you must see a doctor within fourteen (14) days, so relax, take your time, and choose wisely. There will be time to speak with a lawyer as well, there is no need to talk to a lawyer at the accident scene.

(2) LAWYER CONTACTS YOU AFTER AN ACCIDENT

Should a lawyer or lawyer/medical referral service contact you after your car accident?

I was recently speaking with a friend that was involved in a car accident. She told me shortly after her accident she started getting calls from lawyers wanting to represent her in an injury claim. She also started getting advertisements in the mail the next day after her accident from lawyers wanting to represent her.

In addition she received a call from a well known doctor/lawyer referral service that went something like this: "We just wanted to find out how you were doing after your accident". My friend was very annoyed with these calls and asked me if this was legal or ethical.

The short answer to this question is, this type of conduct is unethical and illegal.

It is a violation of the Florida Rules of Professional Responsibility for a lawyer, or someone on the lawyers behalf, to contact you after a car accident. These forms of communication are known as solicitation and are prohibited in Florida, as set forth in the Florida Rules of Professional Responsibility for Attorneys. (Rule 4-7.18). The only type of lawyer contact that is allowed is an advertisement in the mail, no sooner than 30 days after your accident.

In addition, it is a criminal violation in the State of Florida to use information from accident reports to contact accident victims in order to solicit medical or legal services. Florida Statute 119.105). In addition, it is a criminal violation in the State of Florida to use information from accident reports to contact accident victims in order to solicit medical or legal services. Florida Statute 119.105).

(3) LAWYER SHOWS UP AT MEDICAL CLINIC WITH CONTRACT

Some clients have even reported that a lawyer met them at a medical clinic and insisted that they sign a contract with the lawyer before they could receive treatment at the clinic. This type of contact by a lawyer or lawyers representative is unethical and strictly prohibited.

If you are solicited by a lawyer or someone working for a lawyer and you did not initiate the contact, you should immediately report that lawyer to the Florida Bar.

You should never hire a lawyer when their first contact with you is a solicitation in violation of the Florida code of ethics for lawyers and a criminal misdemeanor.

That is not the type of lawyer to hire. They are telling you by their actions up front that they are unethical and don’t mind doing something that is illegal.

(4) LAWYER SENDS A RUNNER TO YOUR HOUSE OR HOSPITAL WITH A CONTRACT

The TV Advertisement Said, "A Lawyer Will Come to Your House"

I recently saw an advertisement for a lawyer, that said if you call that lawyer, the lawyer will come to your house, even after business hours. If that was true, it would be a nice convenience for the potential injury client, but if a "lawyer" is not coming to your house, and instead it is a "contract runner" or other non-lawyer, then the advertisement is false, misleading and deceptive at best.

When you hire a lawyer, you are entitled to meet with a lawyer to discuss your case and sign a contract for legal representation. You should be able to sit down face to face with the lawyer you are hiring to discuss your case and sign the contract for representation. This meeting is perhaps the most important meeting you will have with your lawyer. In addition, when a lawyer comes to your house, you miss out on the opportunity to see what the lawyers office looks like, meet the legal staff, and see how you are treated when you visit the firm. The only contact you may have is with the person that came to your house or hospital room.

Often high volume law firms that advertise on television employ contract runners, but may call them "investigators". These are usually non-lawyers, anyone with a drivers license, that will come out to your home or hospital room, sometimes in the middle of the night, with a contract for legal representation.

You should be aware that only a lawyer is legally allowed to give legal advice, including answering questions you might have about signing the contact to hire the lawyer. If a non-lawyer is advising you about a legal agreement, that would be a violation of the Florida Bar rules.

You should not agree to meet with a contract runner, and avoid hiring this type of firm. You should insist that you meet with the lawyer you are hiring. Unless the contract runner (investigator) is also a lawyer, that person is not allowed by law to answer any legal questions you might have about the contract or about the representation.

If your first contact with a law firm is a non-lawyer "contract runner" coming to your house at night, this should be a red flag, this should raise concern over whether you should hire this law firm. Only agree to meet with a real lawyer, not a contact runner, and if possible, meet at the lawyers office.

(5) LAWYER TOUTS THAT HE IS AGGRESSIVE

In law school, we are taught that ours is a noble and civil profession populated by genteel intellectuals guided in their every action by the rule of law. What a shock it is, then, when we encounter an "aggressive lawyer" for the first time, that one attorney who is the complete opposite of what we have been taught to expect. We are in a deposition, and this aggressive attorney may be rude, condescending, hostile, disruptive, vulgar, and/or disrespectful. We are caught by surprise and may not be prepared for how to react or respond. How we handle the situation reflects on the type of attorney we are, on our firms, on our clients, and on our profession in general.

For the general public, finding the right lawyer can be a daunting task. For some clients it may be their first experience with the legal system, aside from a traffic ticket.

It can be tempting to look for a lawyer who claims that he or she is aggressive. It is common to see on attorney's website, or during your meeting with an attorney, the self-proclaimed declaration about how "aggressive" they are; a real "pit-bull" lawyer who loves to cross-examine the police, the defendant, the opposing party, or to make unreasonable demands to a claims adjuster. This is done with the belief that being "aggressive" will somehow get you, the client, a better result.

Here are some reasons to consider a calm, cool and confident lawyer:

1. Aggressive does not mean effective - An aggressive attorney often makes few friends in the courthouse. The judges often have little patience for certain aggressive tactics, such as refusing to agree to a new hearing date. An effective attorney will compromise on procedural issues, realizing that a case is won or lost with arguments and facts, not tricks. You will also find that fighting over such procedural issues often does little more than waste time and money. Ask any judge, and they will tell you that they are tired of lawyers who cannot get along with one another, who argue over the most minute aspects of their case, who accuse other lawyers of misdeeds, who complain about imagined slights, who hold hard-and-fast to deadlines without accommodation or courtesy, and the list goes on.

2. Aggressive attorneys have a harder time reaching settlements - You may think there is no way that you will settle your current case, however statistics show otherwise; upwards of 90 percent of cases settle before trial. Settling a case is far cheaper than going to trial, and attorneys fees are higher for trial, not to mention the extra cost of expert witnesses. Aggressive tactics, especially when dealing with claims adjusters may result in the claims adjuster digging in their heels and sticking with a low ball offer, ultimately resulting in your case having to go to trial rather than settle.

3. Aggressive attorneys are often not realistic - A good attorney will help you understand what the court is likely to consider in your case. He or she will explain the factors the court (or jury ) will consider in determining an award in your case. An aggressive attorney may not give you a reasonable or realistic assessment of the likely outcome, leaving you unprepared for the final settlement or jury award.

4. Aggressive attorneys may alienate the opposition - claims adjusters and defense lawyers are turned off by aggressive tactics, which may thereby reduce or eliminate the possibility of a reasonable settlement, and may result in low settlement offers.

5. "Aggressive" lawyers are often hated by other lawyers - Lawyers discuss among themselves how to handle these obnoxious fellow lawyers, and try to mentor younger lawyers to not behave that way. Good Lawyers Don’t Just "Try" Cases; Good Lawyers Try to "Resolve" Cases. If other lawyers hate you, then you will have an uphill battle when trying to resolve your clients case.

Family law attorneys can probably attest to this fact the most. Aggressive lawyers run up legal fees, eliminate any likelihood of cooperation between parents, and leave children as the victims of litigation. The same is true for civil litigation. Sparing with opposing counsel or writing aggressive letters or emails is useless. Engaging in aggressive behaviors does not change the facts or the law of your case

Overall, while it might initially be tempting to find an aggressive attorney for your case, you may ultimately find that a more calm and reasonable attorney will better suit your long term needs.

To be an effective lawyer, you need to win people over. You do that by being prepared, courteous, and firm. You don’t do it by being aggressive.

ARE YOU SELF INSURED?

Most drivers would say no, they have full coverage. However, many of those drivers are actually self insured and do not know it. Florida law requires mandatory insurance coverage consisting of personal injury protection (PIP) also known as no fault, and property damage liability. If you purchase the mandatory coverage you are actually self insured for liability, and here is why.  The only two required coverages provide coverage for 80% of the first $10,000 of your own medical bills, and coverage for damage to property such as the damage caused when you hit another vehicle.  What is missing and what are you essentially self insured for?  The answer is bodily injury liability, or the damage caused to the other driver or pedestrian.  When you are at fault in an accident you can be sued for the injury suffered by the other driver or pedestrian, and if you do not carry bodily injury liability coverage (BI) then you are essentially self insured. Under Florida law you are not required to carry BI coverage, and it is an optional coverage, but in my opinion an essential coverage.  What happens if you are hit by an uninsured driver, or a driver that carries only the mandatory coverage?  You have the option of purchasing uninsured motorist coverage (UM) that provides coverage for your injury caused by an uninsured or underinsured driver.  If you do not purchase UM coverage, then again you are self insured, and would have only your PIP benefits.  Does it make sense to be self insured? No it does not, however many Florida drivers are self insured and do not know it.  Be smart, speak with your insurance agent and see if you are self insured.

Why Your Family Doctor May Not Help You After Your Car Accident!

I had the opportunity to visit my family doctor today, an MD for my annual physical. I happened to mention the new PIP law in Florida and inquired whether he had seen an influx of auto accident cases. I pointed out that auto accident victims must seek medical treatment within 14 days of their accident in order to qualify for PIP benefits, and that they must have an assessment by an MD, or DO, or dentist, or Licensed Nurse Practitioner in order to qualify for the full amount of PIP benefits.

My doctor, who happens to be an MD responded that they do not treat auto accident cases for several reasons. First, they do not want to get involved in billing auto insurance or haggling with insurance companies about getting their bills paid under the new PIP law.  Second, they do not want to have to be producing medical records to insurance companies and attorneys. Third, they do not have the time to be subjected to depositions and court proceedings, the ultimate result of treating a car accident victim. 

My doctor said that they simply do not have the time to get involved in all of the paperwork, producing medical records, depositions, and court proceedings. My doctor said that they normally refer their patients out, for the most part to chiropractors that handle auto accident cases.  However under the new law, Chiropractors are not able to make a diagnosis of emergency medical condition.

Perhaps when the Florida Legislature enacted the new PIP law they believed that medical doctors (M.D.s) would be interested in treating auto accident cases, in light of the fact that the legislature  has required treatment by an MD, Do, or Dentist as a prerequisite to obtaining the full PIP benefits.

Attorneys that represent auto accident victims can provide injured persons with the names of several reputable doctors that qualify under the new PIP law to conduct the appropriate evaluation to determine if the person had an emergency medical condition.  A short cautionary tale however, some attorneys have close relationships with medical clinics or 800-lawyer/doctor referral services, and those lawyers may have a financial incentive to refer clients to a particular clinic or doctor. When you meet with a lawyer you should ask for the names of serveral different physicians. If your lawyer insists you see one particular clinic, you should inquire whether the lawyer has any type of relationship with that clinic or with a lawyer referral service affiliated with that clinic, and insist that your lawyer provide you with no less than three doctors to choose from.

 

SHOULD YOU SETTLE, OR FILE SUIT IN YOUR AUTO ACCIDENT CASE?

Often you hear personal injury lawyers advertising that they don’t settle their cases, they take their cases to trial. The advertiser then concludes that the insurance companies surely know which lawyers take cases to trial and which ones settle, and that somehow makes a difference in the way the insurance company is going to treat the lawyer handling your case. It implies that the insurance company is afraid of lawyers that file suit and will surely cave in and give that lawyer anything they ask for. There are two fallacies in this logic, first that the insurance companies know which lawyers try cases and which lawyers settle, and second that the insurance companies care or will treat one law firm differently. Insurance companies most definitely do not make their settlement offers based upon whom is representing the plaintiff, rather offers are made based upon the facts of the case and nature and severity of injury suffered by the plaintiff.

FIRST THE STATISTICS

Four percent to five percent of the personal injury cases in the United States go to trial. 95 percent to 96 percent of personal injury cases are settled pretrial. (Source: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics Bulletin, Federal Tort Trials and Verdicts). In addition another statistic that many experts report is that 90 percent of the cases that do go to trial end up losing.

These statistics contradict the claims by lawyers advertising they that file suit and they don’t just settle cases, when 95 percent of personal injury cases are settled and 5 percent actually make it to trial. Further those lawyers making such boastful claims are actually contradicting themselves, because they imply that the insurance company fearing the lawyers history of taking cases to trial, will make a better settlement offer, but wouldn’t that lawyer then accept the great settlement instead of taking it to trial?. 

WHY DO MOST INJURY CASES SETTLE?

Taking an auto accident injury claim to court is a lengthy process. Once you file a personal injury lawsuit, it could take a year, or even years, until the date of the trial. While the case is pending, your attorney and the other drivers insurance company’s attorney will engage in a process called discovery. Discovery is the period in which the accident is researched by the obtaining of documents and witness accounts, and by other information-gathering. Both sides are required to share with the other what they have learned in discovery. It is common practice for defense attorneys to try to wear down a plaintiff, the person who brought the suit, during discovery. This could be accomplished by requiring the sharing of mountains of information to overwhelm you or by examining your personal affairs you may not want publicly disclosed at trial. Often discovery becomes very intrusive and may require the plaintiff to produce medical records going back many years. Further defense attorneys will go to great lengths to discredit you, even conducting surveillance of you when you are unaware you are being followed or video taped. Even if your are successful in proving at trial that the other drivers negligence caused the accident, and your injuries, with various post-trial motions and a possible appeal, it could still be a very long time before you actually receive your award. Litigation itself is stressful. If you take your case to trial, the other drivers insurance company’s attorney will put you on the witness stand, and work very diligently at discrediting you and your case in front of a jury.

Litigation is also expensive. Most personal injury attorneys work on a contingency basis, which means that they will collect their payment as a percentage of your award. This is also true with settlements. However there are significant costs associated with a personal injury trial such as deposition costs, and witness fees, all of which can substantially eat up any jury verdict you might achieve because the attorney is entitled to recover costs he expended on the trial.

In addition there are certain financial risks that plaintiff’s face if you chose to file suit. When suit is filed and an answer is served, the attorneys fees increase from one third of the recovery to 40% of the recovery. Any verdict obtained in court will be offset by your PIP coverage. In other words, if you obtained a verdict of $50,000.00, that amount would be offset by your PIP coverage so that the judgment would be $40,000.00.

There will also be expert fees and costs associated with the trial of your case. Below is a sample disbursement summary of the same amount at both a pre-suit (settlement) and a litigation (trial) situation:

Settlement	$30,000.00	Trial Verdict	$30,000.00
PIP Set Off	$0	PIP Set off	$10,000.00
Medical Bills	$5,000.00	Medical Bills	$5,000.00
Presuit Costs	$500.00	Presuit costs	$500.00
Suit costs	$0	Suit costs	$20,000.00
Attorney Fees	$10,000.00	Attorney Fees	$12,000.00
Net to Plaintiff	$14,500.00	Net to Plaintiff	-$17,500 (loss)

Using the above example, if you achieve a settlement of $30,000.00 after payment of medical bills, fees and costs, the plaintiff would net about $14,500.00. If the same $30,000.00 represented a verdict in trial, the plaintiff would end up with a net loss of $17,000.00. In order to net the same amount at trial the verdict would have to be $80,000.00 to net as much as a pre suit settlement of $30,000.00.

RISK OF DEFENSE ATTORNEY FEES AND COSTS

Another consideration is exposure with respect to the attorneys fees and costs incurred by the defendant. When a suit is filed the plaintiff runs the risk that he could be responsible for the other side's attorney's fees and costs and for his own attorney's costs. So, it is important to think about these risks when you are considering what type of settlement you would be willing to accept. Florida courts have developed a system designed to facilitate settlement known as an Offer of Judgment. The Offer of Judgement is explained in Florida Statutes 768.79 which states as follows: "768.79 Offer of judgment and demand for judgment.—(1) In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees incurred by her or him or on the defendant’s behalf pursuant to a policy of liability insurance or other contract from the date of filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney’s fees against the award. Where such costs and attorney’s fees total more than the judgment, the court shall enter judgment for the defendant against the plaintiff for the amount of the costs and fees, less the amount of the plaintiff’s award".

Therefore if the plaintiff fails to "beat" the defendants offer of judgement, the defendants could then be entitled to attorney fees and costs from the plaintiff. In plain English if you loose at trial, you might end up paying the defense attorneys fees and costs, even though you were the one injured.

THRESHOLD INJURIES

In a trial, sometimes, absent surgery, there is a very real chance of a defense verdict on the issue of threshold injuries. "Threshold injuries" means that in Florida if you wish to recover more than just your medical bills, you must meet a threshold being that you must have a doctor state within a reasonable degree of medical certainty that you have suffered a permanent injury or a significant loss of a bodily function. In some cases, even if a doctor, or doctors, have made those statements, the jury can still find that the injuries have not met the threshold and can find against the plaintiff and for the defendant meaning that the plaintiff would make no recovery and may actually end up owing the other side's attorney's fees and costs. This is codified in Florida Statute 627.737 (2) which states as follows: "In any action of tort brought against the owner, registrant, operator, or occupant of a motor vehicle with respect to which security has been provided as required by ss. 627.730-627.7405, or against any person or organization legally responsible for her or his acts or omissions, a plaintiff may recover damages in tort for pain, suffering, mental anguish, and inconvenience because of bodily injury, sickness, or disease arising out of the ownership, maintenance, operation, or use of such motor vehicle only in the event that the injury or disease consists in whole or in part of: (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." 　

In a recent study of civil lawsuits, they found that most of the plaintiffs who decided to pass up a settlement offer and went to trial ended up getting less money than if they had taken that offer. The lesson for plaintiffs is, in the vast majority of cases, they are perceiving the defendant’s offer to be half a loaf when in fact it is an entire loaf or more," said Randall L. Kiser, a co-author of the study and principal analyst at DecisionSet, a consulting firm that advises clients on litigation decisions. Defendants made the wrong decision by proceeding to trial far less often, in 24 percent of cases, according to the study; plaintiffs were wrong in 61 percent of cases. In just 15 percent of cases, both sides were right to go to trial — meaning that the defendant paid less than the plaintiff had wanted but the plaintiff got more than the defendant had offered.

The findings suggest that lawyers may not be explaining the odds to their clients — or that clients are not listening to their lawyers. "Most clients think they are completely right," Michael Shepard, a lawyer at Heller Ehrman in San Francisco. A good lawyer has to be able to tell clients that a judge or jury might see them differently, he continued. "Part of it is judgment and part of it is diplomacy."

 

Meeting With Your Auto Accident Lawyer - What You Need to Bring!

When you first meet with an auto accident lawyer it is important that you bring as much information with you about your accident as possible. Often new clients come in for a visit with their auto accident lawyer and do not bring any paperwork or other documentation with them. It will greatly assist your lawyer when you come in prepared for your initial auto accident consultation.

Here is a list of documents and other information you should bring in for your consultation:  

First, you need to bring the accident report or drivers exchange report. It is important that the police be called when ever you are in an auto accident when there is property damage or personal injury. The police report or drivers exchange report will help identify that at fault driver, and / or at fault vehicle owner, as well as their insurance information. In addition, it will assist your lawyer when they write to the police for the long form accident report which normally will include a diagram prepared by the investigating officer, names of any witnesses, and information about any traffic citations.

Second, if you have had an estimate for the repairs to your car for damage incurred in the accident this information is important for your lawyer to have.  If you have taken photographs of your property damage, you should bring those photos, or have them on an memory card from your camera so your attorney can print them.

Third, you should bring your automobile insurance cards and a copy of your automobile insurance policy showing the declarations of insurance or list of coverages included in your policy.

Fourth, if you have health insurance, or medicare or medicaid, you need to bring your health insurance card, meidcare, or medicaid cards. Even though your medical bills are paid by PIP in an auto accident, your lawyer must contact all health insurance providers and place them on notice regarding your accident.

Fifth, if you have been to the hospital emergency room, bring any discharge papers that were provided after your visit. In addition if you have visited any doctors or had an X-Ray or MRI prior to seeing your lawyer, you should bring a list of any such doctors or medical providers that have treated you since your accident.

Sixth, you should be prepared to discuss all prior accidents and pre-existing injuries with your lawyer. If you have had a prior auto accident, slip and fall or workers comp case, it will assist your lawyer if you have any documentation as to the date, type of injury, and whether you previously brought an injury claim.

By bringing the above documents for your first meeting with your accident lawyer you will assist your lawyer in handling your case, and show your lawyer that you took the time and interest to gather this information for your first meeting.

 

THE BEST REASON TO HIRE A CAR ACCIDENT LAWYER

I have had occasion to speak with physicians that treat auto accident injuries and have noticed a common theme when it comes to hiring a lawyer. The physician may suggest to their patient that perhaps they should hire a lawyer. The patient often responds with "I don't want to sue anyone" or "I can handle it myself".

This response by the patient indicates that either the patient does not understand what a personal injury lawyer can do to help them, thinks it will cost them money to have a lawyer, or mistakenly believes that the lawyer will immediately file a lawsuit.

Probably the number one reason to hire a car accident lawyer is summed up in three letters, LOP.

Perhaps most people dont know what an LOP is, or why they need one. LOP stands for letter of protection and it is a written agreement between a lawyer and the clients medical provider(s) promising to pay the clients medical bill(s) out of any bodily injury settlement that the lawyer obtains for his client.

In light of the new PIP law in Florida, the LOP is going to be even more relevant and necessary. Under the new PIP law, it possible that you no longer have $10,000 in medical benefits, and your PIP may only cover $2,500 in medical bills in certain situations.

Medical providers such as Chiropractors, MRI facilities, MD's, Orthopedic doctors, and others used to rely on PIP for payment of their bills. Under the new PIP law, these medical providers may not be able to rely on PIP paying them, and unless they have some assurance of being paid, may require the patient (accident victim) to pay them up front, or even turn them away.

The assurance of being paid comes in the form of a letter of protection provided by the attorney to the doctor, promising to pay the unpaid medical bills out of any bodily injury settlement that the lawyer is able to achieve on behalf of the client.

The patient is not able to issue their own LOP to the doctor, since the patient already owes the medical bill, their additional promise to pay is meaningless. Only an attorney can issue an LOP to the medical provider.

So when a person decides to go it alone, and not hire an attorney, they may be faced with having to pay their doctors up front, or even risk being turned away by medical providers who fear that they won't get paid.

In addition, there is a laundry list of things that a personal injury lawyer can do for an accident victim, in no particular order:

1. Assisting with property damage repairs or total loss of your vehicle

2. Negotiation for dimished value of your damaged vehicle

3. Obtaining a rental vehicle while your vehicle is being repaired

4. Obtaining compensation for your lost wages

5. Obtaining payment for your medical bills

6. Coordination of your PIP benefits

7. Making sure all medical bills are paid by the end of your case

8. Resolving all liens from medicare, medicaid, health insurance, medpay and all other collateral sources

9. Obtaining compensation for bodily injury, pain and suffering

10. Obtaining compensation for miles driven

11. Obtaining compensation for a permanent injury

12. Obtaining compensation for your spouses loss of consortium

13. Filing a Civil Remedies notice

14. Filing a lawsuit

15. Attending a presuit mediation

16. Completing an accident investigation, obtain the police report, take scene photos

17. Taking photos of property damage and injuries

18. Obtaining medical bills, liens, PIP logs, medicare liens, medicaid liens, and medpay liens

19. Providing legal advice on your options and settlement offers

20. Negotiating a satisfactory settlement for your bodily injury

21. Issuing a letter of protection to medical providers

Most personal injury lawyers work on a contingency fee, meaning that they provide the above services for their clinet and only get paid a percentage of the bodily injury settlement. That pecentatge is specified by the Florida Bar and all lawyers handling contingency fees must comply with that fee structure. Often you see lawyers advertising that they don't make anything unless you win, or claiming "you pay nothing if you hire them"  which is really misleading since all lawyers must adhere to the same fee structure on contingency fee cases.

If you have been in an auto accident, an accident lawyer is going to be essential in light of the new PIP law. Unless you are skilled in law, insurance, and negotiation, handling all of the things a lawyer can do for you is going to be difficult at best.

 

 

WHY DO WE HAVE PIP IN FLORIDA?

Did the Florida Legislature loose sight of the reason we have PIP?

The personal injury protection (PIP) law was adopted in 1972 to make sure anyone injured in an auto accident would quickly get money to treat their injuries. The legislation provided that a driver’s insurance company pay up to $10,000 to cover medical bills and lost wages after an accident, no matter who is at fault.

The public policy in support of having PIP is expressed in Florida Statute Section 627.737 Tort exemption; limitation on right to damages. The intent was to limit injury lawsuits in Florida to the extent of personal injury protection benefits paid. The statute reads as follows:

627.737 Tort exemption: "Every owner, registrant, operator, or occupant of a motor vehicle with respect to which security has been provided as required by ss. 627.730-627.7405, and every person or organization legally responsible for her or his acts or omissions, is hereby exempted from tort liability for damages because of bodily injury, sickness, or disease arising out of the ownership, operation, maintenance, or use of such motor vehicle in this state to the extent that the benefits described in s. 627.736(1) are payable for such injury, or would be payable but for any exclusion authorized by ss. 627.730-627.7405, under any insurance policy or other method of security complying with the requirements of s. 627.733, or by an owner personally liable under s. 627.733 for the payment of such benefits, unless a person is entitled to maintain an action for pain, suffering, mental anguish, and inconvenience for such injury under the provisions of subsection (2)."

The need for this exemption, and the PIP statute is based upon the fact that Florida does not require mandatory bodily injury liability insurance. Florida is a No Fault State. Everyone with auto insurance (not including motorcycle policies) is required to carry PIP (Personal Injury Protection). It typically covers 80% of your medical bills and 60% of your lost wages up to $10,000.00. You can buy medical payments coverage to fill in the 20% gap and you can also buy extended PIP coverage. If you want to save money, you can get wage exclusions on the PIP or a PIP deductible.

What most people aren't aware of is that BI (bodily injury) coverage is not mandatory in Florida so someone can hit you with "full coverage" and be without BI coverage. Mandatory BI coverage is required in many states, but not in Florida. So "full coverage" equals PIP and Property Damage.

A much needed amendment to the new 2012 PIP bill was proposed during this session that would have added mandatory BI (bodily injury coverage) in Florida, however that amendment was shot down. The insurance company lobby prevailed again, as they would prefer not to have mandatory BI coverage in this state, and now have successfully limited PIP coverage with the new bill passed last Friday evening. Perhaps the legislature has lost sight of the needs of the people of Florida, as well as the intent of the PIP staute, and corresponding limitation of liability, and handed the insurance industry a nice gift for 2012 at the expense of the citizens of this state.

 

THE EFFECT OF BANKRUPTCY ON A PERSONAL INJURY CASE

There are occasions when a personal injury claim is pending and the injured party files for bankruptcy during the course of representation. It is essential that a bankruptcy filing be brought to the attention of your injury lawyer immediately, as it will have a significant impact on the handling of your injury claim.

The client should not file a Chapter 7 bankruptcy unless they are willing to give up the claim entirely, including any entitlement to payment of future medical expenses, which is explained in more detail below.

Failure to disclose a pending personal injury claim in your bankruptcy filing is a criminal offense known as bankruptcy fraud.

There are two "Chapters of the Bankruptcy Code (Title ii U.S.C.) under which individuals usually seek relief. Below a summary of their impact on personal injury claims. 

CHAPTER7

If there is not a surplus beyond all debt, the injured party has no standing to participate in the settlement process, nor to object to the amount of the settlement. The trustees have very little incentive to push for maximum recovery, they are only liquidators. An additional complication when a Chapter 7 bankruptcy case is filed is that the medical expenses incurred after the filing of the bankruptcy are not dischargeable in the bankruptcy case. Bankruptcy only discharges debts in existence when the case is commenced. While those medical expenses will be an administrative expense of the bankruptcy estate to be paid out of any settlement as necessary to support and prove the claim, the bankruptcy trustee will be attempting to minimize payment to all medical providers in order to maximize payment to pre-petition creditors who are the beneficiaries of the bankruptcy estate. He has no incentive to negotiate a release of personal liability to the injured - just to settle claims against his estate as cheaply as possible. Insurance defense attorneys are trained to do bankruptcy checks because if the injured party filed bankruptcy and didn't disclose the cause of action, the defense attorney can move for dismissal on the day of trial for improper party plaintiff often after the statute has run for refiling.  Since it is too late for the bankruptcy trustee to refile, his only recourse is to sue the debtor for non-disclosure, move to revoke has discharge, and possibly refer the case to the F.B.I. for criminal charges for bankruptcy fraud.

 CHAPTER 13

Chapter 13 is considered the "wage earner's reorganization" and is available only to individuals, not corporations. (There are three other reorganizations: generally Chapter 9 is for government units: Chapter II is for corporations or individuals with extraordinarily large debts, usually engaged In business; Chapter 12 is for family farmers or family fishermen with regular annual income.)

 

If a client has an actionable personal injury claim but they are in collection or being sued by creditors, a Chapter 13 bankruptcy case is ordinarily the best solution. The client is protected by the "automatic stay" of bankruptcy from all collection actions.

Instead of the cause or action being turned over to a trustee, as it is in Chapter 7, the Chapter 13 debtor chooses and retains counsel and through the bankruptcy attorney, that counsel is approved by the bankruptcy court to represent both the interests of the debtor and of the bankruptcy estate/Chapter 13 trustee. Once personal injury counsel has been approved by the bankruptcy court the case proceeds normally, with day to day litigation decisions generally being made by the client and personal injury counsel. Day-to-day litigation decisions should be made by the debtor and litigation counsel and it does not normally require that a motion for court approval of litigation actions be made until a proposed settlement has been reached.

 

When the client and personal injury counsel agree that a binding offer should be accepted, that acceptance must be expressly subject to bankruptcy court approval. (a motion for approval of the settlement). Normally at the same time a motion to approve the fees of personal injury counsel is also filed. It is very unusual for the judge to deny either motion. Bankruptcy judges do not want to discourage personal injury counsel from representing debtors in bankruptcy and generally approve the contingency contract and costs as agreed and incurred unless the bankruptcy judge finds those to be unfair under the factual circumstances. At the time personal injury counsel is authorized by the bankruptcy judge to represent the debtor and the bankruptcy estate, the order normally says that personal injury counsel's fees and costs shall be such as the bankruptcy court shall determine. Fees and costs awarded are always within the discretion of the bankruptcy judge. Upon separate motion the Bankruptcy Court will determine distribution of the rest of the proceeds between the debtor and the bankruptcy estate.

In Chapter 7 bankruptcy cases, unless the cause of action is exempt under law such as a Worker's Compensation claim, upon commencement of the case the cause of action is given over to the bankruptcy trustee as the representative of the creditors. The injured plaintiff may remain injured, but he or she is no longer the proper party plaintiff. The real party in interest is the bankruptcy trustee acting on behalf of the "bankruptcy estate", who has complete authority to pursue the litigation and negotiate settlements. Any settlement is subject to the bankruptcy judges approval, which is rarely withheld. The original injured plaintiff has no standing to object to any settlement unless they can convince the judge that there should be sufficient recovery to pay all creditors in full, with some surplus repayable to the injured original plaintiff (a difficult burden to prove). This means all creditors must get paid in full, including such unusual debts as deficiencies on foreclosed real estate.

 

MISCONCEPTIONS ABOUT UM INSURANCE COVERAGE

What Most People Don’t understand about UM insurance.

There are two common misconceptions about UM, also known as un-insured or under-insured motorist insurance coverage.

First Many insurance agents discourage people from purchasing UM coverage and tell their customers that UM is not necessary or they can save a little money by not purchasing this coverage. For the most part UM is not an expensive addition to your policy premium compared to liability coverage or collision coverage, neither of which cover your injury in the event of an accident with an uninsured or underinsured motorist. The real reason agents discourage buying UM is that it is a very affordable coverage and a great bargain for the client, but not a good deal for the insurance company.

Second Many people who do have UM coverage don’t want to pursue a claim against their own insurance carrier, or don’t understand how or why they would have a claim under their UM coverage.

In Florida the only insurance that is mandatory is PIP (Personal Injury Protection which covers 80% of your medical bills and 60% of your lost wages after an accident regardless of fault up to $10,000.00. Right now PIP is being overhauled in the Florida Legislature and may change drastically after this week, unless our law makers in Tallahassee are unable to reach some agreement.

If you are involved in an accident in which the at fault driver either has no liability insurance coverage or is under-insured with regard to bodily injury liability, you may find that there is no coverage for your injury, or insufficient coverage for your injury, other than the minimum PIP coverage as required by law.

If your injury is serious, your medical bills may well exceed $10,000.00, and if you have a serious or permanent injury you may be entitled to compensation for those injuries from the at fault driver that caused the accident. You would expect the at fault driver to have liability insurance to cover your loss, but in Florida there is no requirement that any driver carry bodily injury liability insurance. In the current economy, many drivers elect the minimum required insurance coverage of PIP and property damage, and forego purchasing liability coverage.

To add insult to injury, if the at fault driver is in such a financial condition that he or she cannot afford liability insurance coverage, then they probably don’t have any assets to speak of, which means that filing a lawsuit against them would not be of any benefit either, as any judgement you might achieve in court would likely be uncollectible.

Uninsured motorist coverage then takes the place of the bodily injury coverage the at fault driver failed to carry, or supplements the inadequate or under-insured coverage of the at-fault driver.

The injured person can pursue a claim against their UM coverage in the same manner that they would have pursued their claim against the un-insured or under-insured driver.

In the case of an under-insured driver, for example, the at fault driver carried $10,000 in liability, but your loss is in excess of this amount, you would first pursue a claim against the at fault driver for the limits of their liability coverage, then pursue a claim under your own UM coverage for the remaining value of your injury claim. In the case of an un-insured driver, your claim is under your own UM from the outset once it is determined that the at fault driver has no liability insurance.

Clients are often hesitant to pursue a claim against their own insurance company when the accident is not their fault, however this would defeat the whole purpose of having UM coverage. It is like having homeowners insurance and not wanting to file a claim after your house burns down. It makes no sense not to utilize a coverage that you paid for, which will cover your loss.

Making a claim under your uninsured motorist coverage is not any easier, or simpler than making a claim against the at fault driver. Most insurance companies do not simply pay out the benefit available under your UM coverage and require that you prove your claim, normally with the assistance of a lawyer, in the same manner as you would against the at fault driver. Clients normally find their own insurance company fighting them for the UM benefits they paid for, and offering settlements under the UM coverage that are far less than the value of the claim.

 

DISTRACTED DRIVING KILLS

WHAT IS
DISTRACTED DRIVING?

Distracted driving is any activity that could divert a person's attention away from the primary task of driving. All distractions endanger driver, passenger, and bystander safety. These types of distractions include: 

• Texting
• Using a cell phone or smartphone
• Eating and drinking
• Talking to passengers
• Grooming
• Reading, including maps
• Using a navigation system
• Watching a video
• Adjusting a radio, CD player, or MP3 player

But, because text messaging requires visual, manual, and cognitive attention from the driver, it is by far the most alarming distraction.

The best way to end distracted driving is to educate all Americans about the danger it poses

Key Facts and Statistics 

• In 2009, 5,474 people were killed in crashes involving driver distraction, and an estimated 448,000 were injured. (NHTSA)
• 16% of fatal crashes in 2009 involved reports of distracted driving. (NHTSA)
• 20% of injury crashes in 2009 involved reports of distracted driving. (NHTSA)
• In the month of June 2011, more than 196 billion text messages were sent or received in the US, up nearly 50% from June 2009. (CTIA)
• Teen drivers are more likely than other age groups to be involved in a fatal crash where distraction is reported. In 2009, 16% of teen drivers involved in a fatal crash were reported to have been distracted. (NHTSA)
• 40% of all American teens say they have been in a car when the driver used a cell phone in a way that put people in danger. (Pew)
• Drivers who use hand-held devices are 4 times more likely to get into crashes serious enough to injure themselves. (Monash University)
• Text messaging creates a crash risk 23 times worse than driving while not distracted. (VTTI)
• Sending or receiving a text takes a driver's eyes from the road for an average of 4.6 seconds, the equivalent-at 55 mph-of driving the length of an entire football field, blind. (VTTI)
• Headset cell phone use is not substantially safer than hand-held use. (VTTI)
• Using a cell phone while driving - whether it's hand-held or hands-free delays a driver's reactions as much as having a blood alcohol concentration at the legal limit of .08 percent. (University of Utah)
• Driving while using a cell phone reduces the amount of brain activity associated with driving by 37%. (Carnegie Mellon)

View this video to see first hand how distracted driving can result in tragedy.

http://www.distraction.gov/content/faces/index.html#/faces/casey-feldman/