I get asked this question hundreds of times each year and in almost every auto accident case where I have the honor of representing accident victims. The truth is there is no easy answer. The billboards you see on the roadways of Florida, with accident victims holding large checks and usually victims involved in an accident which had tragic losses or injuries.
No attorney can tell you during your initial conference what your lawsuit is worth. I can offer you some insight:
• The cases you read about in the paper are generally important exceptions to money awards in lawsuits. If these cases weren’t “different” (either very low or very high,) then the media wouldn’t be interested in them.
• No two lawsuits are exactly the same. Just because another person settled for a certain amount or was awarded a certain amount by a jury doesn’t mean that you should or can recover the same amount.
• Most people who file lawsuits do not get every penny they want or every penny they deserve. Since the harm done to you is personal, no amount of money can make it “right” for you.
Nevertheless, it is wise to keep your expectations realistic.
• The “worth” of your case will be determined in one of three ways—either by settlement prior to filing suit, or after suit is filed by mediation or trial by a jury. In other words, the “worth” of your case is the amount you are willing to settle for (prior to filing suit or in a mediation) or the amount that the jury decides that your injuries are worth.
• If we enter settlement negotiations or mediation for you, I will advise you about each offer you receive. This advice is given based on knowledge of the facts of your case (both for you and against you) and based on my firm’s knowledge and experience.
HOWEVER, in order to recover MORE than your outstanding medical bills, lost wages, or mileage, you MUST have suffered a threshold injury in Florida. The tort threshold is the requirement that an injured person must have a certain type of injury in order to recover damages for pain, suffering, mental anguish, and inconvenience in certain types of vehicular accidents in Florida, the tort threshold is called the “no-fault threshold.”
In order to recover monetary damages for pain, suffering, mental anguish, and inconvenience because of bodily injury, you MUST have
(a) Significant and permanent loss of an important bodily function; (b) Permanent injury within a reasonable degree of medical probability;
(c) Significant and permanent scarring or disfigurement; or
In your case, your treating physician will need to make the determination that you have “suffered a permanent injury within a reasonable degree of medical probability” and assign you a permanency rating.
The above injuries make up the tort threshold requirement and the inability to meet this high standard is one of the reasons that it may be difficult to get money for pain and suffering in many Florida car accident cases. It is also one of the reasons that my office may not file suit if the only injury you suffered is a soft tissue injury such as neck or back pain with no objective findings. In essence, if there is no finding of a “permanent injury” by a physician, or if the treating physician cannot testify that you have sustained a permanent injury within a degree of medical probability, the judge in a case, by law, will not allow the case to be decided by a jury.
In Florida, generally, you may only recover non-economic damages (pain and suffering type damages) if you have permanent injuries (or if the injured person dies). Non-economic damages are payment of money damages for pain, suffering, mental anguish, inconvenience and loss of enjoyment of life. The tort threshold’s purpose is to limit tort lawsuits – if PIP covers the economic loss – when the injury is less serious.
Remember, in Florida, your PIP (Personal Injury Protection) insurance pays your medical bills at 80%, and lost wages up to 60%, both combined up to a single limit of $10,000.00. So if a physician charges $100.00, your PIP pays $80.00 and you are responsible for the other $20.00. For lost wages if you have lost $100.00 in wages, your PIP carrier will pay you $60.00 and the insurance carrier for the driver who caused the accident, will be responsible for the other $40.00.
Without a threshold injury, the other side’s insurance company will only offer you enough money to pay your outstanding medical bills and lost wages but no money for your pain and suffering, or money in your pocket.
Therefore, it is important to follow your treating physicians’ instructions and recommendations for your course of treatment. Remember to tell you physician what is hurting. If you are asked, “How are you feeling?” and you reply “I’m fine” – all your doctor can document is “patient has no complaints.” The other side’s insurance carrier will then use that against you, claiming you have no complaints so “how bad is your client injured.” Of course, do NOT over-exaggerate your claims either. Remember your physician is a professional and if your complaints are out of proportion to your physical exam findings, it will not help your case.
If you have been involved in a car accident in Florida and want to know your rights, call Mark P. Cressman, a Central Florida lawyer focusing on car accidents and providing Representation For The Injured. Call today, 407-877-7317.