Florida has the highest number of motorcycle casualties in the nation. In the state of Florida, 20% of deaths are caused by motorcycles compared to other forms of motor vehicles. While Florida is a no-fault state, if the damage is permanent, the courts allow one to sue the at-fault party for compensation. That is why we at the Jacksonville Personal Injury Attorney provide services to motorcycle accident victims to ensure they get the compensation they deserve.
Florida’s Catastrophic Injury Laws
Catastrophic injuries are life-changing, weakening, and damaging, leading to a significant loss of bodily function. The injuries can lead to permanent damage or the victim facing a lifetime of rehabilitation. The degree of seriousness separates it from other minor injuries. While there is no legal definition, catastrophic injuries are considered injuries that cause long-term, weakening symptoms and require a lengthy time to heal. Injuries that will not fully recover are also regarded as devastating. Catastrophic injuries may cause permanent disability, needing constant assistance or live-in care, or make you suffer a loss in the quality of life.
The common catastrophic injuries include traumatic brain injuries, loss of limb or disfigurement, organ damage, severe burns, blindness, and spinal cord injuries. These injuries can cause physical change, require extensive rehabilitation and multiple surgeries affecting you for a lengthy period of your life.
Florida’s Laws on Motorcycle Accidents Claims
Florida follows the no-fault system, which means that motorists involved in an accident are expected to get compensation for their damages from their respective insurers. The insurance companies are required to cover the expenses of the clients, regardless of who caused the accident. In all states, motorcycle owners are not required to apply for the Personal Injury Protection insurance. Despite the regulation, Florida requires a rider to carry a $20,000 total bodily injury or a $10,000 bodily injury per person and a single limit liability of $30,000.
However, in cases where the victim’s injuries are catastrophic, then one can ignore the no-fault regulation and sue the other party for damages. Section 627.737 subsection 2 of the Florida Statutes, describes permanent damages as:
- Permanent loss of a significant bodily function
- Amputation and disfigurement
- Permanent injury with a reasonable degree of medical probability
Florida State follows a pure comparative negligence system. This system allows for the partially at-fault person to be compensated for the damages. The state assigns a percentage of fault to each party involved and uses the information to allocate the compensation for the loss. For the case to be settled out of court, the apportionment of responsibility is decided by the personal injury attorney and insurance adjuster. If the case goes to trial, the jury will determine the allocation.
You are required to file a claim within four years after the accident or a period of three years if you are filing a claim against the government. The three year period should include 180 days for investigation. If you fail to file the lawsuit within the stated period, the court will disallow your case. The case may only proceed if there is a presence of new circumstances. Late discovery of an injury or disease as a result of the accident will be allowed for court proceedings.
How to Prove the At-Fault Party in a Motorcycle Accident
Chapter 768 of the Florida statutes state that the victim bears the burden of showing the defendant's actions lead to damages by establishing the elements of negligence.
Proving a liability depends mainly on establishing the defendant owed you a duty of care, breached that duty, and that the failure resulted in damage to you. You have to prove the following:
- Responsibility - You should illustrate how the defendant owed a duty of care
- Breach - The defendant’s actions caused the breach of duty
- Causation - The defendant’s actions or lack of action caused your injury
- Damages - You were harmed as a result of the defendant’s actions or inactions
Apart from negligence, some other factors may also be used to determine legal liability:
- If the accident occurred on a poorly built or maintained facility or structures. The structures may include roads, traffic lights, or road signs. In this case, the property owner is liable to the damages as they owe the duty of maintenance regardless of who initially built the structure.
- If a defective item on the motorcycle caused the accident, then the motorcycle manufacturers are liable and should compensate you for the damages.
- If the other party caused the accident but had no duty of care towards you, then you are partially at fault, and your compensation will be reduced. The reduction will depend on the percentage of fault assigned to you. The allocation is where the pure comparative negligence system applies.
However, if multiple parties share a degree of fault as defendants, rules regarding joint liability may apply. The joint liability rule allows you as the personal injury victim to sue for and recover the full amount of damages from one of the defendants.
You can target the defendant with the most resources and one who can compensate for all your damages. It necessarily does not have to be the defendant with the highest percentage of fault. Once the defendant pays you, then the corporation can sue the other parties involved in the accident for their percentage involvement. The damages will then be allocated accordingly.
Proving fault is essential as the court may bar the claim, the damages may be reduced, or you might not be able to sue a preferred defendant in a joint and a several-liability case. Presentation of evidence is needed to show the negligence of the at-fault party, which caused the injuries that resulted in you suffering catastrophic injuries. The evidence establishing fault might include the following:
- Proof of violations of the law
- Testimony by an accident reconstruction expert
- Police reports
- Witness testimony
- Video recordings or pictures of the accident
- Photo of the catastrophic injuries
- Admissions by the defendant
Possible Damages Earned from a Motorcycle Accident
When you file a lawsuit, you will be seeking compensation for the loss you suffered due to the defendant's wrongful conduct. While you may be awarded compensation in various forms, a monetary award is the most common. To understand a potential lawsuit’s worth, you need damages admissible in court. The following are three main types of monetary damages you can receive as part of resolving a civil suit:
The first type of damage is known as compensatory damages, which is generally the most concrete and identifiable class of damages. Your attorney will seek a definitive amount of compensatory damages based on your injuries and property. The most common forms of compensatory damages are:
Motorcycle Repair and Total Loss
Property damage involves repairs to the motorcycle or for a total loss. Total loss means that the insurance will pay you the fair market value of the bike if the amount of repairs exceeds the value of the motorcycle. You will have to get the actual amount of the repairs from an auto-shop to determine a total loss.
You can recover your medical bills incurred both in the past and in the future. Additionally, a doctor's professional opinion will be used to acknowledge that you will need medical treatments in the future as a result of the accident. If future treatment is confirmed, then you can acquire the compensation for that cost as well.
Lost wages apply when you were unable to attend your regular job routines, or you were dismissed from your current job. The unemployment means that you will be compensated for the amount of income lost as a result of you taking time off work to recover. You will also be allocated the cost of the benefits you receive from work.
Out of Pocket Costs
Out of pocket costs are expenses paid directly rather than charged to another party or organization. They may include parking fees at the hospital, gas money for traveling to and from the hospital, and payment for additional services incurred due to the accident.
If the tragic motorcycle accident results in the death of either a passenger or driver, you can get wrongful death compensation from all involved parties.
General damages are sought for injuries alongside compensatory damages. Factors to consider when evaluating the compensation value for general damages depend on your age, occupation, income, and the severity and nature of your injuries. Future medical expenses are also considered. They may include the following:
Lost Earning Capacity
The lost earning capacity refers to the reduced ability to make money in the future due to catastrophic injuries such as a permanent disability or long-term injuries. The calculation for this form of damage is done by considering factors such as your work-life expectancy as dictated by the federal government statistics.
Pain and Suffering and Mental Anguish
Pain and suffering, and mental anguish refer to the pain you suffer as you perform your daily routines and chores. You may also be experiencing psychological distress and trauma while dealing with the fact that the accident has caused you a lot of losses. The losses may include indirect suffering brought about by injuries such as missing out on family events or being unable to participate in your hobbies. You can also claim damages for impairment for activities you can no longer participate in. Things like playing soccer or golf, moving around the house, or carrying your baby fall under impairment claim.
Loss of Consortium
Loss of consortium is the loss or falling out of a relationship with a partner. In a personal injury case, it is as a result of the injuries caused by accident. Your partner or a family member can sue for the loss of affection, love, companionship, or sexual relations you provided before the accident.
Punitive damages are meant to punish the defendant for the wrongful conduct. In most cases, the punishment is due to a DWI situation. When the defendant was driving recklessly or while intoxicated, risking the lives of other motorists and injuring you in the process, then you can file for punitive damages. Punitive damages mostly apply to avoid such circumstances from happening again, as damages for personal injuries may not be that severe.
How to Write a Demand Letter
A demand letter is prepared before going to court to inform the other party of your payment demands. Demand letters often initiate a successful resolution in most personal injury cases. The demand letter should lay out reasons why the other party owes you money, and state failure to comply will result in resolving the case in court. It is essential to touch on the following in the letter:
The letter should review the history of the dispute. If the trial ends up in court, the note will present the judge with information about the damages and claims. You should establish facts by referring to the evidence.
You should be professional and avoid personally attacking the defendant as this will result in the other party replying in the same manner. It is essential to indicate your demands civilly, for the other party to adopt a business-like analysis.
The demands should be specific by indicating the exact amount to be paid by a set date and the mode of payment. You should break down the costs to clearly show the purpose of every dollar spent.
You should firmly state your intention to proceed to court if your demands are not met by the reported date.
Personal Injury Claim Settlement Procedure
After sending the demand letter, the defendant's insurance will respond with a counterclaim or opt for a settlement. The insurance adjuster will, in most cases, reduce the amount to try and save money for the company. The low-blow technique will then initiate the negotiation process. By increasing your deserved compensation to a higher amount, you are leaving room for negotiations, which will, in turn, land you a fair settlement.
While negotiating, your attorney and the insurance adjuster will calculate the settlement amount by adding up the damages and multiplying it by a number between 1.5 and 5. How low or high the number depends on specific facts about the case such as:
- The severity of your injuries
- The medical treatment you have received up to this date is also a determinant
- The medical treatment you anticipate needing in the future
- Prognosis of your injuries. The prediction determines the likelihood or expected development to establish if you will recover, worsen, or remain stable
- Permanent or long-lasting effects
- Impact on your daily life
Your attorney will also add compensation for general damages after calculating the compensatory damages. In extraordinary cases where you are permanently disabled, recovery is prolonged, and the injuries are immediately apparent, the multiplier will be increased.
However, several factors may make it difficult to calculate your claims:
If, for instance, you were unemployed at the time of the accident, you are allowed to claim the earnings of your previous job as your lost earning capacity. The allowance depends on the length of time you were unemployed. For a lengthy period of unemployment, you can not file for a lost earning capacity. You will also have no lost earning capacity if you are retired. If you are self-employed, you can claim the amount of income declared in your tax returns as your lost earning capacity.
You can only receive compensation for recognizable medical procedure costs. The rule implies that if your physical therapy cost is indicated as $700 while the reasonable fee is $500, you will only receive $500 as compensation. Disagreements may arise due to this, and later on, affect the negotiation process.
Loss of Consortium Compensation
The loss of consortium compensation only covers children, parents, guardians, and domestic partners in the state of Florida. In cases where the partners are divorced, the cost of damages awarded will be negatively affected. Also, the insurance includes single injury limitations in their liability policies. This means the loss of consortium damages will have to be filed separately from the personal injury claim.
Insurance Policy Limits
In most cases, the compensation you deserve may accumulate to millions of money but may be affected by the insurance policy limit. If the motorcycle owner was under-insured, then you will receive the maximum amount, which is $20,000. After covering your medical bills and attorney fees, you will be left with an unsatisfying amount that barely covers your needs. You have the option of filing a court case against the driver, but in most cases, the motorist will probably not have much in assets.
The Procedure of a Personal Injury Lawsuit in Civil Court
The process is initiated by filing a civil complaint against the person, corporation, or agency responsible for the motorcycle accident that resulted in your injuries. This mostly happens after settlement negotiations, between you and the insurance, break down. Then the case will go through a standard civil court process. After filing the lawsuit, the defendant may respond either through a counterclaim or a motion to dismiss the case. The case may go through the discovery process. Here the defendant requests interrogatories, depositions, or other relevant documents from you. Your attorney will then disclose all the evidence admissible in a court proceeding to the other party.
A mandatory settlement conference is ordered by the court to try and solve the case outside court by negotiating further. An alternative dispute resolution such as mediation can also be used to ensure there is a fair settlement.
The judge will then listen to evidence given by both parties at the trial. The evidence may include witness testimonies, images, and videos of the scene, police reports, and medical professionals to indicate the severity of your injuries.
If the jury finds the other party liable, they will decide on fair compensation for your damages. If the other party is not satisfied with the verdict, they can appeal to an appellate court in Florida's judicial system.
Disbursement of Your Injury Settlement
Once a settlement has been reached or a lawsuit won, it will take about one to three weeks from the date the case is settled for your firm to receive the check from the insurance company. The money is then allocated accordingly by your law firm. The lawyer fee, which is 33% of the compensation, is then deducted. You might have signed a fee agreement with the attorney under the contingency fee. That means you will not pay any fees upfront, and your lawyer will receive a payment if your case reaches a favorable outcome for you. The amount may be less if the case resolves before a lawsuit is filed. The IRS will then tax income you claimed in the trial. Other taxable settlements are any interest payment, compensation for your pain, and suffering and punitive damages.
The preparation of a settlement statement is then done to indicate where all the allocations for the amount will proceed. This is done after you agree with the report and disbursement of funds. The law firm will pay the medical bills and other necessary payments. Afterward, you will be paid the proceeds that are not owed to third-party and attorney fees. The funds will include all damages, such as lost wages and lost earning capacity, pain & suffering, emotional distress, or future medical procedures. You will then be free to use the money as is best for you and your family.
Find a Personal Injury Attorney Near Me
Personal injury cases can be complicated and require skills and knowledge that an experienced legal counsel can provide. There is a chance you may feel uncertain or doubtful of the legal move to make as the negotiation process can be time-consuming and overwhelming. It is vital to seek the services of an attorney that will provide top-quality legal support and open communication for legal matters. If you need a brilliant team of lawyers in Jacksonville, Florida, that offers the best service and legal experience, contact the Jacksonville Personal Injury Attorney at 904-800-7557.