| First: liability | | | | Many people are seriously injured in low-impact or low |
| The first issue your lawyer must consider in every | | | | property damage collisions. Proving causation in these |
| auto accident claim is whether it can be proven the | | | | types of cases requires your lawyer to have a full |
| other party was at fault. Lawyers call this establishing | | | | understanding of the medical and engineering |
| liability. Legally, it means the other party owed a duty | | | | principles which will be argued by the insurance |
| which they breached, such as driving at a reasonable | | | | industry against you. This must be fully discussed |
| speed, maintaining control of their car, stopping when | | | | with any lawyer you hire. |
| required, or yielding the right-of-way. You may be | | | | The second area in which causation issues may be |
| thinking this should be quite obvious. Many times it is. | | | | argued by the insurance company typically arises if |
| But many times it is not so obvious. What about two | | | | you have been injured in a prior accident or reported |
| cars colliding in an intersection with both drivers | | | | a prior injury, most commonly involving the back or |
| claiming to have had a green light? Many multi-car | | | | neck. When the injury claimed in your current |
| rear end collisions involve proving which car caused | | | | accident involves a part of the body which has been |
| the first impact. For example, did the second car in | | | | previously injured, or otherwise required medical |
| line cause the accident by striking the first car (car | | | | treatment, you can expect the insurance company |
| number two is liable), or did the third car hit the | | | | to question whether the accident caused the current |
| second car, driving it into the first car (car number | | | | injury or whether it simply aggravated a pre-existing |
| three is liable). The physical evidence of how the | | | | condition. The insurance company will work very hard |
| accident occurred, along with statements of the | | | | to find any such evidence. They have access to a |
| most credible witnesses, will control the question of | | | | medical claims database which often shows whether |
| proving liability. | | | | you have previously had medical claims paid. Armed |
| In evaluating the issue of liability, the insurance | | | | with that information they will ask your lawyer for |
| company will look for every opportunity to argue the | | | | medical records from every provider they can locate |
| injured party also was at least partially at fault in the | | | | in search of evidence of some pre-existing injury or |
| accident. This is known as arguing comparative fault. | | | | condition to the same area of your body involved in |
| Florida is a comparative fault state, which means | | | | the current accident. This requires your complete |
| when an accident occurs involving two cars, it is | | | | cooperation with your lawyer. The last thing you |
| possible that both cars may be found responsible (or | | | | want in your claim is for your lawyer to be surprised |
| be held liable) for the accident. Every insurance | | | | with medical records produced by the insurance |
| adjuster evaluates every accident with the goal of | | | | company revealing treatments or complaints of a |
| attempting to place as much blame as possible on | | | | pre-existing condition. You should fully discuss with |
| the injured party for any fault they may have had in | | | | your lawyer any prior accidents, particularly accidents |
| causing the accident. | | | | in which you received any injury. You should also a |
| Why is this important to you? | | | | carefully recall whether you have ever reported pain |
| The evaluation process requires a careful examination | | | | or discomfort to your doctor to any part of your |
| of the facts to determine whether the insurance | | | | body injured in your current accident. Your attorney |
| company will be successful in proving whether you | | | | will need a full understanding of these facts. |
| are also at fault. They do not have to place the fault | | | | Third: damages |
| entirely on you. Any amount of comparative fault | | | | Once you and your lawyer consider liability and |
| they can successfully prove will reduce the amount | | | | causation, the issue of damages must be evaluated. |
| they you owe in compensation . For instance, if the | | | | Damages include both tangible and intangible losses. |
| at fault driver turned into the path of your oncoming | | | | Tangible losses are your financial losses, including |
| vehicle, they would be liable for damages. However, if | | | | wages, wage earning capacity, medical expenses |
| their insurance company could successfully prove you | | | | which must be repaid to insurance companies and |
| were also responsible for some percentage of fault in | | | | other third parties, including Medicare, Medicaid, VA |
| the accident, due to unlawful speed or some other | | | | and Worker's Compensation insurance carriers, as well |
| factor, any percentage of your fault would reduce | | | | as unpaid medical expenses incurred and in those you |
| your settlement or verdict by that percentage. | | | | more likely than not will need in the future. This will |
| Proving comparative fault by you of twenty five | | | | require your lawyer to have a full understanding of |
| percent in causing the accident would reduce your | | | | your medical treatment and any medical treatment |
| settlement or verdict by twenty five percent. Any | | | | your doctor believes you will more likely than not |
| combination of fault can be made by a jury, if the | | | | require in the future, together with the cost of such |
| evidence shows that both parties were at fault. | | | | treatment. In proving any lost wages and wage |
| The issue of evaluating exactly what each driver did | | | | earning capacity, your lawyer will need to obtain |
| leading up to a crash is extremely important. Your | | | | evidence of your earnings and evaluate whether an |
| lawyer needs to question you closely and you need | | | | expert could be used to establish the likelihood that |
| to be honest in telling your lawyer exactly what | | | | you will suffer a loss of your earning capacity in the |
| happened. Otherwise, both you and your lawyer may | | | | future. |
| be caught off guard later, hurting your case. Rest | | | | Fourth: insurance coverage |
| assured, the other driver's insurance company is | | | | Finally, your lawyer must determine if the at fault |
| going to look for every argument you were also at | | | | party has the ability to pay the losses that you have |
| fault. If they are successful in making that argument, | | | | suffered. This usually comes down to insurance |
| it will save them money. | | | | coverage and investigation of the defendants assets, |
| Second: causation | | | | if necessary. Is the at fault party insured and what |
| The second issue which must be proven is that | | | | limits of insurance coverage are available to pay your |
| someone's negligent act caused your injury. This is | | | | losses? Are there other sources of insurance? Based |
| referred to as causation. Causation can be | | | | on the circumstances of your case, your lawyer may |
| straightforward, such as when a pedestrian's leg is | | | | be required to do one or more of the following in |
| broken by a car running them down, or when your | | | | order to investigate coverage: |
| car is severely damaged in a rear end collision which | | | | Determine whether the vehicle was owned by the |
| causes you neck or back injuries. However, there are | | | | driver or some other person, corporation or |
| two major areas involving auto automobile accidents | | | | governmental entity; |
| where causation issues frequently arise. The first is in | | | | Request and obtain sworn policy information from |
| rear end impact cases where there is no evidence of | | | | any insurance company providing coverage for the |
| impact on your vehicle. Lawyers frequently see cases | | | | driver, the owner, and any other entity having legal |
| involving collisions resulting in absolutely no evidence | | | | responsibility for the vehicle, including any excess or |
| of impact on the car occupied by the injured person. | | | | umbrella insurance policy; |
| Commonly, complaints of neck and back injury result | | | | Request and obtain sworn policy information from |
| from such collisions involving minor soreness and soft | | | | your auto insurance company regarding any uninsured |
| tissue damage. Many insurance companies have set | | | | underinsured motorist coverage available on your |
| up special teams to handle the defense of claims | | | | policy. If your insurance company maintains you |
| involving little or no property damage. They are | | | | rejected uninsured/underinsured motorist coverage |
| sometimes as MIST cases (minor impact soft tissue). | | | | on your policy, require them to produce any rejection |
| They believe showing photographs of a car with no | | | | form to make sure it complies with the requirements |
| property damage will allow them to convince a jury | | | | of Florida's insurance laws. |
| the accident did not cause any injury claimed. | | | | Conduct an assets check of any assets owned by |
| However, other accidents involving little or no | | | | the owner, driver, or other entity legally responsible |
| property damage result in clear, objectively provable | | | | for the vehicle. |
| injuries, typically disk injuries of the neck or back. | | | | |