A bruised arm or a scratched leg likely isn’t going to cut it. PIP provides up to $10,000 in damages for medical expenses and 60 percent of your lost wages for the time you were forced to take off work. It will also cover things like travel expenses to doctor appointments. It will not cover things like pain and suffering or loss of consortium that would be available in lawsuit.

If your injuries are more serious and $10,000 will not cover your losses, a Broward injury lawyer can review the facts and help you determine if the injuries you’ve suffered medically meet the statutory threshold.more

Florida Serious Injury Threshold

PIP is considered your “primary” insurance following a crash, and it’s available regardless of fault. The downside of this is that it’s limited. $10,000 can seem like a lot at first blush, but the reality is it’s not much in the aftermath of a crash.

To pursue a personal injury lawsuit after a crash – before you can establish fault, before you can argue how much you should be paid – you need to show your injuries are serious enough.

The law breaks it down into four categories:

• Permanent or significant loss of an important bodily function.
• Significant and permanent disfigurement or scarring;
• Permanent injury, as determined within a reasonable degree of medical probability;
• Death.

The law doesn’t go into any further details about how courts should interpret this. What our Broward injury lawyers can say is that prior case law does provide some insight into which injuries meet the threshold and which do not.

Just as an example, a broken arm will likely meet the serious injury threshold. On the other hand, a sprained wrist most likely won’t, even if you’re in a lot of pain. The difference is that most broken bones will impair an important bodily function (i.e., writing, carrying, lifting, walking, etc.). It meets the first criteria, even if it’s not a permanent injury.

Different People, Same Injury, Different Serious Injury Thresholds

Our injury lawyers need to be careful to note there is no brightline rule about which injuries qualify. In fact, two different people could have the same injury and one might qualify while the other would not.

One example might be if an athlete sustains an injury like whiplash, the injury might not meet the “seriously impair” the athlete the same way it might a small child or elderly person – even though it’s the same injury.

This is why it’s important for an experienced Broward injury lawyer to carefully examine the fact pattern in your case to make a professional judgment about whether an injury is significant enough to impair a person’s life.

A defendant can always challenge the serious injury threshold. The defense can ask the court to make a determination on whether one’s injuries truly meet that threshold. If that happens, a hearing may be set, at which time both sides can present evidence, including expert witnesses who can testify as to the seriousness of your injuries and how it impacts your life.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

F.S. 627.737, Serious Injury Threshold Statute

We’re all familiar with those “gotcha” news clips of a person who claimed they were seriously hurt and video evidence showed it clearly wasn’t as bad as they’d alleged. We’re not even talking about those cases. The insurance company and other defendants, they will want to damage your credibility any way they can. Defendants in personal injury lawsuits can request the court grant access to review your page – your posts, your likes, your photographs, your videos and even private messages. (Some courts have held that privacy settings matter when it comes to these requests. For example, a federal appellate court ruled in Crispin v. Audigier Inc. that when a user’s settings are “private,” their posts there are to be treated as private and not-discoverable, based on a 1986 electronics communication law. Yet the Supreme Court of New York, Suffolk County, ruled just the opposite in Romano v. Steelcase, finding the court could compel plaintiff to consent to turning over all current and deleted contents from her social media accounts, absent any consideration for her privacy settings, so long as the information contained therein was “material and necessary.”

What you need to bear in mind is that everything has the potential to be used against you. This is true even among injury plaintiffs that are truthful about how the accident happened and the extent of the injuries they suffered. Sometimes, it’s as seemingly innocuous as emojis or “likes.” more

Take the Romano personal injury lawsuit for instance, wherein plaintiff was injured when her workplace chair collapsed. She sued the manufacturer of that chair, alleging defective design. She asserted in her complaint that her physical injuries had resulted in emotional anguish, as she was not able to leave her home or socialize with friends. To counter this assertion, the defense presented evidence gleaned from her social media page: Showing her in more than one instance outside her home, counting up the number of “friends” she had on her page and even pointing out the smiley-faced emojis with which she often punctuated her posts. Of course, we all know what we post on social media paints a rosier picture than the reality. Nonetheless, it was twisted and used against her.

Some judges have found, in the interest of privacy and to avoid “fishing expeditions,” the alternative is to have a neutral third-party review the material in question to determine its relevance. But Fort Lauderdale injury attorneys know that still doesn’t keep your pages and pictures from being reviewed and potentially entered into evidence in your injury lawsuit.

It should be noted that Facebook does not guarantee complete privacy, and regardless of one’s privacy settings, the company’s own disclaimer states, “Please be aware that no security measures are perfect or impenetrable.” (This was the basis on which the court decided the Romano case.) Further, be wary of any new “friend” requests from unfamiliar individuals.

If you have questions about what to post – or avoid posting – you can discuss these concerns with your personal injury attorney. However, when in doubt, go the cautious route.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Crispin v. Audigier Inc., May 26, 2010, U.S. District Court, Central District, California

More Blog Entries:

Families Seek Damages for Florida Keys Truck Accident That Killed Four Tourists, Sept. 22, 2018, Fort Lauderdale Personal Injury Attorney Blog

Now, the 2nd District Court of Appeal joined the 4th DCA’s prior opinion, holding that these non-economic damages are also not constitutional. The Florida Supreme Court is still weighing the 4th DCA’s opinion on the issue.

This could result in the biggest change in Florida injury litigation in more than a decade. Two years ago, the Florida Supreme Court ruled in McCall v. U.S. that medical malpractice damage caps – imposed by a 2003 state law under then-Gov. Jeb Bush – were not constitutional in cases where the patient had died. Now, the 2nd DCA has ruled in Port Charlotte HMA v. Suarez that the same is true when the patient survives medical negligence. This backs the findings of the 4th DCA in North Broward Hospital District v. Kalitan. F.S. 766.118 caps non-economic damages (i.e., those garnered for pain and suffering, loss of consortium, etc.) are not to exceed $500,000 per claimant. No defendant will have to pay more than $500,000 per claim for non-economic damages, though, no matter how many claimants there are.

Support for the 2003 legislative change was that doctors insisted big-money jury awards were driving up their insurance premiums and some were forced to retire, leave Florida or refuse to perform high-risk procedures (in turn limiting the availability of health care). Some called the problem “unprecedented.” However, the Florida Supreme Court in its analysis of the “alleged medical malpractice crisis,” found there was no rational basis for these assertions. Specifically, the existence of a medical malpractice crisis are “not fully supported by available data.” The number of physicians from 1991 to 2001 in Florida actually grew in both non-metropolitan and metropolitan areas (19 percent and 11 percent, respectively). So the number of doctors during this “crisis” was actually growing, not falling.

Plus, the Government Accountability Office found that of Florida medical malpractice lawsuits that resulted in payments of over $1 million over a 14-year stretch, only 7.5 percent involved a jury trial verdict. Further, more than 10 percent of the settlements with payouts of more than $1 million were resolved without a lawsuit ever being filed. Ultimately, only a small percentage of medical malpractice payments were the result of jury trial verdicts.

These facts cast serious doubt over the findings of the legislative task force that juries were responsible for a “medical malpractice crisis.” What’s more, the court was critical of language used by the task force that was highly speculative. For example, the court noted the task force indicated lawmakers “believed” that the alleged crisis “could get worse,” that premiums, “might become unaffordable,” etc.

In reality, prices for insurance premiums went up because insurance premiums had been under-priced for years and there was a dramatic drop in investment income for insurers. Tort reform changes had nothing to do with it.

So that brings us to the Suarez case. Plaintiff alleges her prematurely-born daughter did not receive proper treatment at a hospital in Port Charlotte when she was born in 2010. Today, the girl is fully-dependent on others, requiring 24-7 care for the rest of her life.

Her total damages awarded were $9.6 million, including $4 million in non-economic damages. However, that amount was reduced to $6.7 million. The hospital is seeking to further lower its obligation.

The Florida Supreme Court’s pending decision in the Kalitan case will prove the deciding factor.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Another appellate court finds med mal caps unconstitutional, Oct. 27, 2016, By Jim Rosica, FloridaPolitics.com

More Blog Entries:

U.S. Supreme Court Declines Review of Florida Workers’ Comp. Ruling, Nov. 17, 2016, Fort Lauderdale Medical Malpractice Attorney Blog

It is not unheard of for judges in criminal court to order restitution to the victim, who may or may not have a pending civil case. However, that restitution is unlikely to cover the full cost of damages. Victims may be lucky if they get even a fraction of their losses covered – and that’s assuming the defendant even pays. Although criminal restitution isn’t dischargeable in a bankruptcy, it’s not uncommon for victims to walk away without ever seeing a dime of that money. On the other hand, civil lawsuit damages take into consideration not just medical bills, but lost wages, pain and suffering and loss of consortium. Further, they are usually paid by insurance companies and other third parties, which increases the chances of the victim actually receiving the money owed.

This is why it’s imperative to discuss your case with an experienced Fort Lauderdale injury lawyer – even if the prosecutor pursuing action against the person who harmed you promises to also ask for restitution.

The recent case of Johnson v. Colorado, the Colorado Supreme Court weighed in on the issue of distributing restitution in the case of a woman who suffered injuries suffered in a car accident. It involved the payment of medical bills directly to the victim, who in turn reportedly failed to pay the health care providers.

According to court records, the at-fault driver in this case was convicted of careless driving no injury. As a result of that conviction, the criminal court ordered him to pay $23,400 in restitution for the financial losses suffered by (among others) a woman whose vehicle he struck, as well as to the woman’s seven medical providers. Initially, those restitution payments were made directly to the woman. She was obliged in turn to pay her medical providers.

However, after prosecutors became aware that the medical providers hadn’t been paid, prosecutors moved to alter the restitution payee, requiring those restitution payments be made directly tot he providers.

The careless driver then filed a motion for reconsideration. He argued that prosecutors’ request to change the payee was in effect a new restitution request and further, wasn’t timely. The county rejected this argument and the district court affirmed. The state supreme court granted review, and ultimately affirmed.

The court noted the car accident had seriously injured the victim, and the restitution included:

• $4,300 for 8 weeks of lost wages;
• $850 rental car;
• $48,400 in medical expenses not covered by any insurance due to policy limits;

There had been a $25,000 settlement from defendant’s auto insurance company. Prosecutors then sought to obtain $23,400 in restitution for victim.

A few years later, it was learned that despite receiving $25,000 from the auto insurer and $3,200 in restitution toward the remaining $23,400, the injured woman hadn’t made any further payments to her medical providers. As it turned out, she had filed for bankruptcy protection, which in turn discharged her obligation to pay those debts. Prosecutors therefore requested that all future restitution payments be made directly to the medical providers. Prosecutors reduced the total by the amount that had already been paid.

As prosecutors noted, they weren’t increasing, decreasing or adding any new recipients of the money. Rather, they were simply changing the payee. This, the courts ruled, did not amount to a new order of restitution.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Johnson v. Colorado, Sept. 12, 2016, Colorado Supreme Court

More Blog Entries:

$20 Million Verdict Against Truck Company for Traumatic Brain Injury, Sept. 14, 2016, Fort Lauderdale Personal Injury Lawyer Blog

Video of the incident shows the victim pulling up to the hotel’s valet service with her Lexus sport utility vehicle. An attendant begins unloading her belongings and she steps out of the car. Suddenly, a man who was seen in earlier frames looking on nearby approaches. He calmly gets into the car and sits in the driver’s seat. The scene quickly turns chaotic. He violently slams the vehicle into reverse. He knocks over several valets and hotel guests. Plaintiff instinctively reaches out to the door handle, but the suspect jerks forward, forcefully pulling her arm. In all, seven people were struck and four had to be hospitalized – one in critical condition.

Now, plaintiff argues the hotel and valet service knew or should have known this act might occur and done more to prepare for it or at least warn their guests. According to Courtroom View Network, the assailant had attempted to steal at least five other vehicles from this very same valet service, which operates in the South Florida region. One of those attempts occurred at the very same hotel. All of those incidents occurred in the months before this incident.

In this case, the 50-year-old defendant did eventually make it out of the valet service area with the vehicle. However, the vehicle was found abandoned and the suspect was cornered at a local motel less than 12 hours after the incident.

So how is the hotel or the valet service responsible for the carjacker’s actions?

The issue comes down to foreseeability.

Foreseeability involves whether the person who caused the injury – or was in a position to prevent it – should have reasonably foreseen the consequences that would result from his or her conduct. In the case of third party property owners accused of negligent security, courts have since the 1960s taken the stance that while the property owner may not have known a particular suspect would carry out a particular action, the incident was foreseeable due to recent similar incidents in the same location or nearby. There is a focus on what the relationship was between either the criminal and the defendant or the victim and the defendant.

The legal duty owed to an injured party is summarized in the Restatement (Second) of Torts, Section 344. The invitor who opens the property to the public or for business is subject to liability if an invitee on the premises is physically harmed by a third person because the invitor failed to exercise reasonable care to:

• Learn that such acts were being done or were likely to be done;
• Provide an adequate warning to let visitors know about the danger or otherwise protect them.

Foreseeability is considered in light of all the circumstances.

In this case, plaintiff alleges that despite the carjacker’s previous attempts at stealing cars in just this way, neither the hotel nor the valet service tried to do anything to alter their operation to make it safer, nor did they warn guests about it.

Plaintiff is seeking compensation to cover her medical costs for elbow surgery and post-traumatic stress disorder.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Battle set for possible punitives claim against luxury hotel in suit over carjacking, June 10, 2016, By Arlin Crisco, CVN

More Blog Entries:

Facebook While You Drive? Better Make Sure You Can Afford the Insurance Bill. July 1, 2016, Miami Personal Injury Lawyer Blog