Sitting in traffic – waiting for the light to change when suddenly you are hit from behind. You were wearing your seatbelt. You were paying attention and doing everything right. Your car was hit so hard that it was pushed into the car ahead of you. What do you do? What’s the next step?
You were driving northboundon US-1 in Miami. You were going the speed limit when suddenly a driver to your right veers into your lane and crashes into you. You stop and get out of your car. The whole side of your car is wrecked, and the other driver begins to shout over and over again, “I’m sorry, I’m sorry, I’m sorry”. What do you do? Who do you call other than the police? Do you call your insurance company? Do you pull over to the side of the road and move your car out of traffic?
You stop at the stop sign on a residential street. You’re making a left turn. It’s a four-way stop. After coming to a complete stop and looking in all directions,you begin your turn-suddenly, a car speeds through the intersection and smashes into the side of your car! You’re hurt. Your head smashes against your driver side window. The next thing you remember is somebody knocking at your windowscreaming, “Are you ok? Are you ok?”. What do you do? Who do you call? What’s your next step?
Car crashes like these occur in South Florida every day. Most people have no idea what to do when a crash occurs. The purpose of this article is to provide some potentially valuable information and advice and help you decide whether you need to hire a lawyer.
In all of these examples, the first thing that you should do is notify 911. Whenever you have been in a crash – even a minor crash, you want to get a police report. A police report is important for a number of reasons. A police report will document the parties involved in the crash, the types of vehicles, their ownership information, insurance information and contact information. Oftentimes, if the accident is significant, the police will make an effort to obtain witness information and gather important data regarding the facts of the crash. Whenever someone is injured in a crash, 911 must be called. Emergency medical technicians, firefighters, paramedics,andambulance personnel are alltrained in emergency first-aid and will providenecessary support and assistance at the scene. If the injuries warrant it, the injured person(s) will be transported to a hospital emergency department. For a less serious crash, whenever possible and if safe to do so, accident vehicles should be moved to avoid blocking traffic.
While waiting for the police to arrive it is advisable to take photographs of all four sides of all of the accident vehicles. Take scene photos, photos of debris, and try to get the names (and license tag numbers) of any witnesses. Witness contact information is essential since many timeswitnesses will not wait long enough to speak with the police.
Do not make statements at the scene about the crash facts. Do not volunteer information except in cooperating with law enforcement. You must cooperate with law enforcement in routine, non-criminal accident investigations. Accident reports are not admissible in civil actions so what you say to the police officer at the scene is not subject to be used against you in a civil case.
Avoid engaging the at-fault driver. Do not act in an aggressive or accusatory manner; simply allow the police to handle the situation. Do not threaten to sue, do not make any sort of remarks that will inflame or aggravate what is already a tense situation.
If injured, seek medical attention promptly. Do not delay. As this article will further explain, there are important insurance considerations with regard to prompt medical care as well.
Following a serious car crash, you are going to have several sets of bills, expenses, forms to fill out, and other concerns that you may not know how to address. It makes sense to hire a lawyer with experience handling motor vehicle crash cases to answer your questions and protect you from being taken advantage of. Some of those are the following:
- Damage to the car. Car crashes result in property damage to a vehicle. Even the most minor rear-end collisions result in thousands of dollars’ worth of car repairs. Who is going to be responsible for this payment? Normally, there are two ways that the payment for your car damage gets resolved. In Florida, you have the option of going through your own insurance carrier. Many people carry what is known as Collision coverage.Collision insurance covers damage to your car in the event of an accident with another vehicle. This is different from Comprehensive coverage which pays for damage such as vandalism, theft or hail, for instance. Many people carry a deductible on their Collision coverage which ranges from $250 up $1,000. This means that you agree to be responsible for that deductible and the insurance company pays up to the covered amount after that deductible is satisfied. For example, if you have a $3,000 repair estimate and a $1,000 deductible; your insurance company will pay $2,000and you will pay $1,000. When you go through your own insurance carrier following a crash that was not your fault, typically your insurance carrier will then seek subrogation or reimbursement from the at-fault party. They will also attempt to recover your deductible from the at-fault party’s carrier.
When you seek reimbursement of your vehicle damagethrough your insurance company, you are subject to the rental coverage limitations that you selected for your own policy. For instance, if your vehicle coverage provides for $30 per day with a maximum of $1,000 for 10 days and it takes longer to repair yourvehicle, you will be out of pocket for all charges over your coverage limitations.Also, your car insurance carrier has the right to utilize its “preferred” repair facilities which may not be the place that you want to fix your car. these repair shops also may not be convenient to you from a location standpoint. Unless there are difficulties in locating the at-fault party’s insurance company or, they are contesting responsibility for the accident, it may make more sense to let the insurance repairs be handled by the at-fault party’s insurance carrier and not your own.
Other reasons why you may want to let the other party’s insurance pay for your car damage is:
- You control where your car gets fixed.
- If it takes longer to fix your car then your own rental insurance will pay for, the at-fault party’s carrier has no such limitation.
- You control the terms of the repair (new vs. old parts, place of repair, etc.)
- There is no deductible that you will have to pay.
- The claim does not show up on your insurance history since your insurance company is not paying for it. People worryabout their premiums going up even following an accident that was not their fault. While not directly related, it certainly goes into your overall claim history and the less your insurance has to pay the better when it comes to this rating.
- Diminution of Value.Many times, especially with newer cars, even after a quality crash repair, the car is not worth the same amount as it was before the accident. This loss in value is known as diminutionvalue and is a recoverable item of damage. Anytime a Carfax or other automobile history is run, it is supposed to show a car’s maintenance and accident history. A car that has had a crash is worth less than a car that has not had a crash even if the repair is perfect. It is this delta between pre-crash value and post-crash value that is known as diminution in value and is recoverable from the at-fault party or their insurance carrier.
- Loss of Use.What happens if your car is used for business purposes or is a unique or expensive vehicle? The at-fault party’s insurance carrier is responsible for placing you in a like vehicle during the repair period. If it is a work vehicle, they have to rent you a work vehicle. If it’s an expensive sedan they have to rent,you asimilar vehicle of like quality.
- Total Loss.Total loss means that the vehicle damage is greater than 80% of the vehicle’s value. Oftentimes there is some subjectivityas to when a car must be declared a total loss. Allowing a car that should be totaled to be fixed frequently results in extremely long repairs that often leave the vehicle in an unsatisfactory condition requiring supplemental repairs.Utilizing your own appraisal service or conducting data evaluations on the vehicle will often result in a close call being turned into a total loss. Once the car is deemed a total loss, then the at-fault party’s insurance carrier must pay the actual cash value of the vehicle. You can still keep the car if you wish but will be issued a non-rebuildable title.This again can turn into a dispute over what your car was worth moments before the crash. Did you have any upgrades? Was the car customized or were after-market accessories and parts added? Did the vehicle have low mileage or high mileage? Was it a collector’s item? These are all factors that go into the evaluation and assessment of a total loss.
Frequently, car damage claims involve aconsiderable amount of time and work and require some level of expertise. Most attorneys handling a personal injury case do not charge for this service. Many times, following a crash where a car is not safe to drive, immediate action must be taken to get a replacement vehicle or rental vehicle so that the client can get back on the road to work or to get medical care. Working with the insurance companies to conduct a rapid turnaround on theliability assessment (fault of the parties) and authorization to provide a rental car is an important service that your lawyer can provide. Also, it is critical that the release documents be reviewed carefully to be sure that important rights and claims are preserved and not waved away. Explicit preservation language can be put in an overly broad release in the event that the carrier is unwilling to negotiate the terms of this form document. These are all valuable services that your injury lawyer can provide relating to property damage.
- Insurance Coordination of Benefits.The aftermath of a car crash often finds the victim injured, confused and uncertain of what to do next. Insurance questions always come up. Knowing your rights,which insurance company pays what, and understanding the rules is essential. Here are some brief but important points:
- Florida is a no-fault jurisdiction. In Florida, a person’s own insurance company pays a portion of their medical bills and lost wages regardless of whether or not they are at fault for the crash. Under Florida law, every motor vehicle owner must carry a minimum of $10,000 in personal injury protection coverage (PIP). The Florida PIP statute 736 is lengthy, confusing and the subject of constant litigation. There are lawyers that dedicate their entire practice to PIP cases. Under 627.736, the PIP statute, it states, “An insurance policy complying with the security requirements of s. 627.733 must provide personal injury protection to the named insured, relatives residing in the same household, persons operating the insured motor vehicle, passengers in the motor vehicle, and other persons struck by the motor vehicle and suffering bodily injury while not an occupant of a self-propelled vehicle, subject to subsection (2) and paragraph (4)(e), to a limit of $10,000 in medical and disability benefits and $5,000 in death benefits resulting from bodily injury, sickness, disease, or death arising out of the ownership, maintenance, or use of a motor vehicle.” (Incredibly, there are 17 enumerated paragraphs and 132 subparts of the PIP statute).
Simply put, following a motor-vehicle crash PIP insurance benefits areprimary over health insurance and all other coverages. If you are involved in a motor vehicle crash and it is not due to your own fault, carelessness or negligence; even though your own insurance company must pay your PIP benefits, your premiums will not be increased as a result.
PIP pays 80% of your medical bills up to $10,000 and 60% of your lost wages. To trigger payment of PIP benefits, the individual must receive initial medical services and care within 14 days after the motor vehicle accident (F.S. 627.736(1)(a)). To receive medical care from a licensed healthcare provider, a determination by that provider of an emergency medical condition must occur.Without an emergency medical condition determination, PIP benefits are limited to $2,500. Certain medical benefits are excluded from PIP such as massage and acupuncture. Unlike health insurance and other coverages, the insurance carrier providing PIP benefits has no right to reimbursement from any settlement. So, not only is PIP primary but it has no right of subrogation (except in a limited circumstance involving a commercial carrier) which makes it even more important to seek PIP benefits first before any other coverage pays.
In addition to PIP, certain insurance policies provide medical payment coverage. Medical payment coverage provides benefits that supplement and exceed personal injury protection benefits. Medical payment benefits do have a right of reimbursement if a settlement or judgment is attained. It is also possible to have supplemental PIP which is additional insurance over and above the standard PIP coverages. If a person is driving a vehicle for work, there may actually be multiple types of insurance that come into play. That injured worker may have workers compensation coverage, personal injury protection, medical payment coverage, health insurance and other benefits from their commercial policy of insurance. Coordinating the insurance benefits for the injured party is paramount. PIP has an added benefit of allowing the injured driver to select any licensedhealthcare provider of their choice. The PIP carrier cannot dictate what healthcare provider the injured person must see.
In order to trigger health insurance benefits, most health insurance companies require a PIP exhaustion letter. This is a letter from aPIP carrier certifying all PIP benefits have been paid. Additionally, benefits received under any workers compensation law get credited against PIP benefits.IfMedicaid pays a person’s bills, PIP must reimburse Medicaid.
It is important to immediately provide notification to the PIP carrier following an accident (the statute says as soon as practicable, however in practice, the sooner the better). Typically, PIP benefits must be paid within 30 days. The insurance carrier, upon receiving written notification must reserve $5,000 of PIP to physicians providing emergency services – this includes hospitals. PIP is personal – meaning, it follows the person and not necessarily the automobile they are in. A person’s own PIP may pay their bills even when in another car besides their own. While health insurancebenefits may become payable following a motor vehicle crash where PIP is exhausted, health insurance benefits are payable according to the contract with the insured. Meaning if your plan requires that you get approval from a primary care physician, the insurance contract controls the terms of the benefits –not the PIP statute. Additionally, most health insurance contracts have a of right reimbursement against a settlement or judgment. A very specific letter must be sent to a health insurance carrier (provider of collateral sources) in order to give them notification of intention to claim damages from the at-party. This is detailed in Florida Statute 768.76(6). If the carrier fails to respond to this letter within 30 days, theirright of reimbursement is waived. It is preferable to send this letter as early in the case as possible and be sure it is sent by certified or registered mail.
It is important to review your insurance benefits before you have a crash to determine if you carry essential coverages. In order to register a vehicle in the state of Florida, only personal injury protectionbenefits,and property damage coverage are mandatory. Incredibly, Florida does not require insurance carriers to provide benefits other than PIP and PD of $10,000. Under Florida Statute 627.739, a named insured may elect a deductible and/or modify PIP coverages. Deductibles range from $250 to $1,000. Coverages for income loss and earning capacity loss can be excluded and deductibles can be applied to the named insured only. A careful review of your insurance policy coverages before you are involved in a crash is essential. Is your coverage limited by a highdeductible? Do you have comprehensive and collision coverage? Most importantly, in Florida, do you have uninsured motorist coverage or underinsured insurance (which protects you in the event the at-fault party is underinsured or uninsured)? Do you have MedPayor extended PIP? What are your rental car coverage limits?These are what are referred to as first-party benefits. Benefits that are personal to you and provided by your own insurance carrier. Many people carry basic, stripped down coverage with the assumption that the at-fault party’s coverages are responsible for all of their medical bills. This is incorrect under Florida law and often results in anxiety and significant financial loss after a crash.
Understanding your insurance benefits, how insurance coverages following a car wreck are applied and which benefits pay first are essential to properly manage your affairs following a motor vehicle accident.
- Medical Injuries and Financial Losses – Who is Responsible?The person who causes the automobile accident is responsible for the damages. Additionally, the owner of a motor vehicle is responsible for the actions of a permissive driver. This is known as the Dangerous Instrumentality Doctrine and has been a matter of Florida law since the 1920s. Like mostgeneral rules, there are exceptions.
The at-fault driver is responsible for your medical bills and lost wages not covered by your PIP, and if you sustain a permanent injury, they are responsible for payment of your additional damages. In mostmotor-vehicle accident trials, the single most hotly contested issue is whether or not the Plaintiff (person bringing the case)suffered a permanent injury within a reasonable of medical probability. This is known as the “tort threshold”. Under Florida statute 627.737(2), 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 in the event that the injury or disease in whole or in part of:
- Significant and permanent loss of an important bodily function.
- Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.
- Significant and permanent scarring or disfigurement.
One of these four threshold requirements are necessary to seek future damages for such non-economic claims as pain and suffering and loss of the capacity for enjoyment of life. Permanent injury is proven by medical testimony through a healthcare provider; usually, your treating doctor. The defense has a right to have a Plaintiff seeking damages for physical injury evaluated by a doctor of their choice who will normally have a contrary opinion. Without some objective and easy-to-understand injuries such as a broken bone, serious scar or worse, the case may boil down to a battle of the experts. Unless this threshold of “permanency”is met, a Plaintiff’s damage award, even in a case where there is a finding of clear liability, would be limited to the non-covered economic damages. There is no pain and suffering withoutmeeting the threshold set forth in the statute cited.
With many neurologic and orthopedic injuries following an accident, proof of these conditions takes time, medical documentation, evaluation and care. Frequently, management of serious car accident-related injuries costs well in excess of the limited $10,000 in PIP coverages.
This tort threshold only comes into play where the at-fault party carries proper Florida insurance coverage on their vehicle. An uninsured motorist cannot require a Plaintiff to prove a tort threshold.
If the Defendant is driving a vehicle owned by another person, there are limitations set forth in Florida law as to the vehicle owner’s financial responsibility for the crash. Under Florida Statute 324.021(b)(3), the owner who is a natural person and loans a motor vehicle to any permissive user shall be liable for the operation of the vehicle or the acts of the operator in connection therewith only up to $100,000 per person and up to $300,000 per incident for bodily injury and up to $50,000 for property damage. If the permissive user of the motor vehicle is uninsured or has any insurance with limits less than $500,000 combined property damage and bodily injury liability, the owner shall be liable for up to an additional $500,000 in economic damages only arising out of the use of the motor vehicle. This means that if you loan your car to somebody you can be liable for up to $600,000 worth of damages.
There are different rules for leased vehicles. The lessor of a car with a lease 1-year or longer is not considered the owner of a car for liability purposes if there is a $100,000/$300,000 bodily injury liability policy with $50,000 coverage for property damage. The moral of the story; be careful when you lend a vehicle you own. Business Vehicles, when used for the operation of the business, make the business owner liable when the driver is negligent.
Many insurance policies sold in Florida do not contain coverages for bodily injury. This means that if you injure somebody, or the driver of your vehicle injures somebody, there is no bodily injury liability insurance coverage to protect youor your driver. It is important that you review your policy to make sure you have adequate bodily injury coverage that, in the event of an accident, would protect you from the injuries and damages your motor vehicle causes. This is especially true when you have children on your policy that use your car. Also, of great importance in the State of Florida is adequate uninsured/underinsured motorist coverage.This type of insurance coverage protects you in the event the driver of an at-fault vehicle does not have insurance or only has a minimal policy.
- Final Thoughts. In conclusion, the question of whether you need an attorney following a motor-vehicle crash appears obvious – you do. When you have been seriously injured, have medical concerns, financial losses, bills, loss of use of your vehicle and other questions, an experienced Florida accident and injury lawyer can help put the pieces back together for you. Jeff Davis is a board-certified civil triallawyer with more than 34 years of experience representing people in motor vehicle accidents throughout the State of Florida. The law firm focuses on immediate action: making sure that our clients get prompt and adequate medical care, making sure that all involved insurance companies are notified, witnesses are identified, and evidence is secured. We monitor our clients’ claims from the beginning to end to be sure that all necessary notifications and procedural deadlines are met to protect our client’s interests. There are many questions that come up following a car crash. Do I give a statement to the at-fault party’s insurance company? Do I give a statement to my own insurance company? Can I sign a release for my car damage? What is a no-fault benefits application,and do I need to complete one? Do I need to notify my health insurance carrier? Should I be taking photographs of the vehicles and the scene and my injuries? Should I get a statement from the witnesses? How do I get the police report? My vehicle was towed to a tow yard – what do I do now? My family doctor does not want to see me because it’s an accident case-do I need to see a specialist? What type of doctor and who should I go to? Do I reserve PIP benefits to cover my lost wages or should they all be applied for my medical bills? These and numerous other important decisions need to be made in nearly every motor vehicle accident case.
Please call Jeffrey R. Davis,P.A. at 305-577-3777 for guidance as to whether we can assist you with these questions. Our office is available on a 24/7 basis and we are bilingual and serve clients throughout the state of Florida.