THE FLORIDA LAW BLOG

SHOULD YOU CALL A LAWYER 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.

HUNGOVER DRIVING JUST AS BAD AS DUI DRIVING

I have previously discussed the dangers of drunk driving in this blog because according to recent statistics from the CDC, alcohol is a factor in nearly 1 out of 3 traffic fatalities. New studies indicate that driving hungover might not be a good idea either.

What about hungover driving the next day?

Researchers at Utrecht University in the Netherlands found that hungover drivers were more impaired than a driver with a blood alcohol concentration (BAC) of 0.05. For the study, each of the nearly 50 volunteers consumed 10 drinks and then underwent simulated driving tests the next day when their BAC was back to zero. Overall, they showed significant lapses in alertness and increases in erratic behavior such as weaving.

A smaller study by the University of the West of England had similar results. Drivers tested the morning after a night of heavy drinking showed poor reaction times, had trouble maintaining a steady speed, and made substantially more driving errors.

These studies confirm a 2008 study by Brunel University in Uxbridge, England. Participants in those tests were hungover, and drove faster, left their lanes more frequently, and committed twice as many traffic violations, running stop signs and red lights. In addition to being hungover researchers felt sleep deprivation, dehydration, and low blood sugar levels all played a role.

Does "sleeping it off" makes you safe to drive after a night of drinking?

In the U.K., new statistics show that "morning after" drunk drivers account for 10% of all drunk-driving arrests. The drivers were pulled over between 6 and 8 a.m., still intoxicated several hours after their last drink.

Do not conclude that a few hours of sleep after a night of drinking will make you ok to drive.

Depending on the amount of alcohol you drink, you can still be over the legal limit the next morning. In an insurance survey, drivers admitted that they do not know how long it takes alcohol to leave the body. Drivers who would never get behind the wheel after consuming alcohol at a bar (and do the right thing by taking a cab, Uber, or Lyft) may still be over the legal limit the next morning without knowing it. It is a false sense of security to think that a shower, some coffee, or a little sleep will eliminate the effects of a night of drinking. The reality is that time is the only thing that will eliminate the alcohol from your system. Often it takes five or more hours after waking up from a night of drinking to be under the legal limit.

Beware, Florida Drivers Are Uninsured

Thinking of coming to Florida on vacation, you should think twice, and be warned that Florida drivers are not required to carry liability insurance, also known as bodily injury liability or BI. Bodily injury liability coverage will pay for your injuries and other losses after being in an accident.

Under the current Florida law, drivers are only required to carry personal injury protection or PIP, which will cover their own injuries, but not yours. In addition Florida drivers are required to carry property damage coverage which will pay for the damage done to your car. However there is no requirement that Florida drivers carry BI coverage which would pay for your injuries when you are in an accident caused by a Florida driver. This is how things have been in Florida since 1972. Florida became the second state in the country to adopt a no-fault automobile insurance plan which took effect January 1, 1972.

This antiquated law has remained on the books ever since, with the exception that the Florida legislature enacted provisions in Florida's new personal injury protection (PIP) on January 1, 2013. The changes required that accident victims seek treatment within fourteen days after their accident or loose their right to collect pip benefits. In addition, if you are not diagnosed with an emergency medical condition, or EMC, the new law will limit the pip benefits to $2,500.00. Under the revised law, PIP will not pay for acupuncture or massage thereapy. The 2013 changes did not make it better for anyone, Florida drivers are still not required to carry bodily injury liability insurance, and the 2013 law instituted hurdles that Florida insured drivers must clear in order to even get coverage under their own policy.

In January 2018, the Florida Senate will consider a proposal that would replace the state's no-fault auto insurance system, while a similar bill has already has gone to the House floor.

The senate proposal would repeal the no-fault law, which requires motorists to carry $10,000 in personal-injury protection, or PIP, coverage to help pay medical expenses after accidents. It would require motorists to carry $5,000 in what is known as medical payments coverage, or MedPay, and minimum amounts of bodily-injury coverage that would increase over time.

The requirement that motorists carry $10,000 in PIP coverage hasn't changed since 1979.

The House proposal does not include a requirement of carrying MedPay coverage. The House measure, which faces opposition from some insurers, business groups and medical providers, has been projected to save motorists on average about $80 a year.

Under the proposed bill, starting Jan. 1, 2019, Florida would set a minimum of $20,000 for bodily injury protection that includes coverage for the injury or death of one person and $40,000 for injury or death of two or more people. The coverage would grow to $25,000 and $50,000 two years later and to $30,000 and $60,000 on Jan. 1, 2023.

If you plan on driving in the State of Florida, lets hope that the Florida legislature does the right thing and enacts the proposed legislation to require Florida drivers to carry bodily injury (BI) liability coverage. If they don’t, I suggest you stay away from driving on the Florida highways.

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.

POSSIBLE CHANGES TO FLORIDA'S NO FAULT (PIP) LAW COMING

In January 2018, the Florida Senate will consider a proposal that would replace the state's no-fault auto insurance system, while a similar bill has already has gone to the House floor.

The senate proposal would repeal the no-fault law, which requires motorists to carry $10,000 in personal-injury protection, or PIP, coverage to help pay medical expenses after accidents. It would require motorists to carry $5,000 in what is known as medical payments coverage, or MedPay, and minimum amounts of bodily-injury coverage that would increase over time.

The requirement that motorists carry $10,000 in PIP coverage hasn't changed since 1979.

The House proposal does not include a requirement of carrying MedPay coverage. The House measure, which faces opposition from some insurers, business groups and medical providers, has been projected to save motorists on average about $80 a year.

Under the proposed bill, starting Jan. 1, 2019, Florida would set a minimum of $20,000 for bodily injury protection that includes coverage for the injury or death of one person and $40,000 for injury or death of two or more people. The coverage would grow to $25,000 and $50,000 two years later and to $30,000 and $60,000 on Jan. 1, 2023.

Lawmakers in 2012 passed a package of changes at the urging of Gov. Rick Scott and then-state Chief Financial Officer Jeff Atwater, that were considered a last-ditch effort to maintain the no-fault system after rates increased because of fraudulent claims. Lawmakers in both chambers have considered bills annually since 2013 that sought to repeal PIP.

ANNULMENT OF MARRIAGE IN FLORIDA

I am often asked the question by people seeking a divorce, regarding annulment.

In Florida divorce is the most common way to end a marriage. Annulment of marriage in Florida is a potential way to end a marital relationship with several limitations, as well as a religious process. While divorce acknowledges the legitimacy of the relationship and dissolves it equitably, an annulment of marriage in Florida is applicable only when the marriage was not legitimate or was void from the start.

The most common use of the process of annulment is in the context of a religious annulment.

Some religions prohibit divorce or remarriage, and only allow remarriage after the parties obtain an annulment. This type of annulment is typically pursued through the church.

WHEN CAN YOU PURSUE AN ANNULMENT

In order to pursue an annulment in Florida you must have a marriage that was void or voidable from the beginning. Some valid basis for annulment include;

1. If one of the parties was unable to consent, due to a lack of mental capacity.

2. If the marriage was entered into as a joke, such as a quick marriage in Las Vegas

3. If there was lack of consent for a genuine marital relationship if one or both parties were intoxicated.

4. If physical consummation of a relationship (Sexual relations) is not possible.

5. If either party was defrauded into marrying,

6. If either party was under duress to marry.

WHEN IS ANNULMENT PROBABLY NOT AN OPTION

There are several reasons why you most likely cannot pursue and annulment, which include:

1. If you engage in consensual sexual intercourse with their spouse after finding out about fraud.

2. If you and your spouse have consummated your marriage.

3. If you have continued to cohabit with your spouse after finding out about the issue that makes your marriage void or voidable

WHAT IS THE MOST LIKELY WAY TO END A MARRIAGE IN FLORIDA

The majority of marriages are terminated in Florida by the filing of a petition for dissolution of marriage. In Florida there is no need to prove grounds for divorce, and no waiting period of separation required. All that is required is that you are a Florida resident for six months continuously prior to filing for divorce, and that you allege that the marriage is irretrievably broken and needs to be dissolved. A Florida divorce attorney can assist you in filing the petition for dissolution and the numerous other forms and pleadings that must also be filed. Divorce ultimately requires a hearing before a judge, even if the parties are in complete agreement.

See A Dog or Child in A Hot Car in Florida, Here is What You Can Do!

The Law in Florida - Dogs and Children in Hot Cars!

What do you do if you see a dog in a hot car with the windows closed? When a dogs body temperature reaches 106 degrees, heat stroke can cause organ failure and death. A dog can reach this temperature in just one hour outside in the Florida heat, and much quicker in a hot car with the windows closed. The Florida governor signed a bill into law that grants civil immunity to good Samaritans that break into locked cars to rescue pets or people. Symptoms of heat stroke include: restlessness, drooling, heavy panting, and vomiting, If you see a dog with these symptoms, you should take the following steps: (1) try to find the owner (2) get a witness (3) try to open the car door (4) call 911. If these steps fail and the animal or person is in imminent danger, Florida law now grants civil immunity to a person who breaks into a vehicle to rescue a dog if they have already called 911, tried to find the owner, and tried to get inside without force. The law may be found in Florida Statutes, F.S. 768.139

SHOULD FLORIDA ELIMINATE PIP (NO FAULT) INSURANCE?

The Florida Legislature has taken a step towards scrapping a decades old law that supports the no-fault insurance system in the state and legislation to reform it is pending. The state Senate is also considering its own version of the measure to discard the no-fault auto insurance system.

Also known as Personal Injury Protection (PIP) in Florida, no-fault insurance covers at least $10,000 in medical expenses without the need to determine which party is at fault during a vehicular accident. PIP is intended to pay 80% of medical expenses and 60% of lost wages after an accident.

No-fault or PIP was established in Florida in 1971, and at that time, $10,000 seemed appropriate to cover the average medical bills incurred in an auto accident. Fast forward 46 years and we find that medical bills on a typical auto accident are closer to $25,000.00. In addition, the Florida legislature reduced the amount that PIP would pay to $2500 unless there is an emergency medical condition or EMC. Currently there are 11 states that have this type of antiquated system of car insurance.

If that was not bad enough, insurance carriers have resorted to what are known in the industry as IME’s or independent medical exams, conducted by an insurance company paid doctor (hardly independent), and usually resulting with the insurance company doctor declaring that the patient is fine and needs no further treatment. This is also known in the industry as an IME Cutoff, which terminates any further payments by your PIP coverage.

Here is the best part, in Florida the only insurance coverage that you are required to carry is PIP (see discussion above) and property damage. We already know that PIP is supposed to pay your medical bills, but often does not. The only other coverage that is required is property damage, which covers the damage that the insured driver may do to your car. So under the existing Florida law, you get some of your medical costs paid and you get the damage to your car paid.

What about the injury to people? At this time, Florida does not require anyone to carry what is know as bodily injury liability insurance, or BI coveage. BI coverage would pay for injuries you incur as the victim of an auto accident, your medical bills, pain and suffering and a host of other losses you may incur. Most people don’t know the importance of this until they get hit by a Florida driver that carries only the required PIP and property damage coverage.

Right now, the Florida legislature is considering eliminating PIP and requiring that all Florida drivers carry BI liability coverage in the amount of $25,000/$50,000. This is a good idea for all of Florida. Some legislators are trying to tack on a provision that limits bad faith claims against insurance carriers that deny legitimate claims, lets hope that does not happen.

PROPERTY DAMAGE IN AUTO ACCIDENT CLAIMS

The period after a car accident can be very stressful. If you have recently been involved in an accident involving property damage to your vehicle, it is important understand the property damage-related compensation available.

When your car is damaged in an auto accident, and there is property damage coverage, your insurance company (or the at fault insurance company) will either pay for repairs or "total" your vehicle. When an insurance company totals a vehicle, the vehicle is considered a total loss and the insured is paid the actual cash value (ACV) for the vehicle.

The ACV of your vehicle is how much your vehicle is worth at the time of assessment. You may have bought your car for $38,000, but your vehicle is going to be worth a lot less than what you originally paid when assessing its ACV years, or even just months later.

Your car’s ACV falls immediately after it leaves the dealership by up to 30%, even though your car is still "brand-new" when you’re driving it away from the dealership, insurance adjusters will still count it as "used" once you drive it off the lot.

Knowing the ACV of your car is important, because insurance companies will be paying you that sum if you somehow end up totaling your vehicle. Understanding how ACV is calculated can help you negotiate a better ACV for your vehicle, thus increasing your insurance payout for your vehicle.

Factors used in determining ACV of your car:

1.The age of your vehicle – the older the vehicle, the lower the ACV because of wear-and-tear.

2.How well you maintained the car – regular dealer servicing, regular oil changes, etc

3.Vehicle Model – the model of your vehicle, including special trim packages, limited editions, classic cars, and vehicle recalls.

4.Mileage – the lower your mileage, the higher the ACV

5.Accidents – If your vehicle has never been in an accident your ACV will be much higher compared to a vehicle that has been involved in an accident.

6. Vehicle valuation guides including; Kelley Blue Book (KBB) or the NADA guide.

You may not believe that your car is a total loss, however this determination is made on the basis of the cost of repair versus the car’s worth. A car will be considered totaled if the repair costs exceed a certain percentage of the car’s worth. The percentage will differ from company to company, but usually ranges from 51% to 90%.

Once your car is deemed totaled and you are paid actual cash value for it, your car is taken to a salvage yard where it is auctioned off. If you are attached to your car, actual cash value may not seem like an equitable deal to you, however when you sign a contract with your insurer, it is understood that the insurer will not have to pay more than the car is worth. But the insurer also agrees to make you whole by placing you in the same position as you would have been without the accident, hence the ACV of a comparable make, model, year, and quality vehicle.

If you want to keep your car, you can accept the actual cash value minus your deductible, minus the salvage value (what the insurer would have gotten at a salvage yard). If you do decide to retain your vehicle, you must register the vehicle as a "salvage title" vehicle, which tells the world that your vehicle was deemed a total loss as a result of an accident. If you repair the vehicle, and try to resell it, you must disclose this to any potential buyer, and will find that it has much less value due to the salvage title.

In addition to the costs of repairing or replacing property damage to one’s vehicle caused by the wrongful conduct of another, you may also recover the cost of a rental car for a reasonable period of time while your car is being repaired or replaced. However, once an offer has been made by the insurance company to compensate one for the loss of a vehicle, the insurance company will normally terminate the rental car reimbursement period, because it is assumed that you could then obtain a replacement vehicle with the total loss payment. Similarly once repairs are completed, rental reimbursement will end.

A personal injury attorney can represent you for your vehicle repairs, or total loss negotiations with the insurance company, and this is normally a free service combined with representation for your bodily injuries. In a contingency case, the attorney normally receives a percentage of any bodily injury settlement, however the attorney does not receive a percentage of your vehicle repairs or total loss payment, and as such the lawyer is assisting you with your property damage for free. Many clients do not realize that the lawyer handling their injury claim is handling their property damage for free.

Problems may arise when repairs are not completed to the clients satisfaction, and these should be brought to the attention of the repair facility and your attorney immediately. In some cases, a supplement is paid by the insurance company in order to properly complete the repairs. Other problems arise when a client believes that his or her vehicle are worth much more than the ACV offer from the insurance company. In these cases, the client can assist their attorney by providing documentation, and comparable sales to bolster what the client believes the vehicle is worth.

WHO OR WHAT DETERMINES THE VALUE OF A PERSONAL INJURY CLAIM

If you think that it is your lawyer, or your lawyers elaborate demand package that determines the value of your personal injury claim, think again.

Personal injury claims are and have been valued by a computer program called Colossus starting in 1980. This program was developed in Australia by the government to reduce the value of workers compensation claims. 

Since 1980, Colossus is now used in the United States by more than 50 percent of the nations claims adjusters, and by 38 agencies representing 300 insurance companies.

Here is the interesting part, claims adjusters no longer value injury claims.  They input data into the Colossus program which then returns a claim value. The claims adjuster is limited by the number that Colossus spits out and has the ability to increase the valuation by no more than 10%.

So what data do claims adjusters input into Colossus?  Good question, it is only the medical records. The medical records are the only source of data input used by the program. The well written and strongly worded demand package submitted by the lawyer is not input into Colossus.

With this in mind, it is very important for anyone that is pursuing an injury claim to seek medical diagnosis and treatment for any injury they sustained.  The medical records must be clear and concise and detailed. If the medical records are chicken scratch or check the box type records, these cannot be input into Colossus. The medical records must specify the exact nature of the injury, and hopefully the  diagnostic codes that are associated with each type of injury. Further if there is some degree of total body impairment, the medical records must specify what that percentage is.  Failure to seek medical diagnosis and treatment as well as gaps in treatment will severely limit the value of an injury claim. Poorly written or inadequate medical records will also severely limit the value of an injury claim.

Once your medical records have been submitted to Colossus, and a value is spit out by the program, it becomes very difficult to change that valuation, even with additional medical treatment. Claims adjusters are hesitant to request the manager's permission to have Colossus re-evaluate your claim when new records are submitted. With that in mind it is worth waiting until your treatment is complete before submitting your medical records and formal demand package. It may appear that your attorney is not doing anything on your case, but the reality is that your lawyer is probably waiting for your treatment to be complete before submitting a demand package.

What is the alternative to the Colossus offer?  You always have the option to file a lawsuit and ask a jury to value your claim instead of Colossus.  However on small cases in the value range of $10,000 to $25,000 it is normally not economically feasible to take these cases to trial, considering the cost of expert witnesses, depositions and other costs related to trial.