Below are just some of the Frequently Asked Questions that many of our clients have either asked us, or were afraid to. Please don’t hesitate to ask us anything.
Do I need a lawyer for my automobile accident case?
In almost all circumstances a lawyer with our firm can substantially increase the recovery you will make as a result of an automobile collision including damages to your vehicle and personal injury bodily injury to yourself. However, in some situations, with limited insurance coverage and the at fault driver or vehicle owner has no personal assets to recover, you may not need a lawyer to make full recovery. If that is the case we will advise you on how to speak with the insurance carrier to collect all of the insurance coverage without incurring attorney’s fees and costs.
However, under no circumstances should you sign any release before speaking with a lawyer about the case.
It is important to understand that there may be several different parties who are at fault or liable for your injuries. There may be several different types or layers of insurance coverage available. The at fault driver may have been on the job or performing some errand for someone else which makes them responsible as well. David M. Dunlap will investigate all these possibilities, provide you with all relevant information and help make the decision that is right for you in your individual situation.
Oftentimes we find an employer or corporate defendant who has excess insurance coverage over and above the driver’s individual coverage. That is not always disclosed to you by the insurance company. Sometimes we find property and unencumbered personal assets of the at fault driver which can be converted to cash and recovered. Of course there may be underinsured motorist coverages on your vehicle or another vehicle in your household if owned and insured by a relative.
The best decision is to allow us to conduct our investigation, without obligation to you and provide you with the appropriate information to make the right decision on hiring a lawyer and pursuing the case.
Who do I recover from in a personal injury case?
In most circumstances the recovery you will make will come from the at fault driver’s or at fault vehicle owner’s automobile insurance company. There may be various levels of insurance coverage on the at fault parties. The individual driver or vehicle owner typically will not pay out of pocket for the settlement or a lawyer to defend him or her. However, if a lawsuit is filed against the at fault driver or vehicle owner there can be no mention of insurance and the actual individual driver and owner will be named as defendants in the case. While we are not allowed to discuss insurance coverage at the trial, most juries understand how automobile insurance coverage works in Florida and understand that the monies being paid by the individual defendant really come from their insurance carrier.
Why is my insurance coverage involved in an automobile accident when it is the other person’s fault?
Florida is a “no fault” state. This means we are all required to carry no fault insurance, commonly referred to as “PIP” or Personal Injury Protection. This insurance pays the first $10,000.00 of expenses for medical bills and lost wages. Our own PIP insurance pays 80% of reasonable and necessary medical charges and 60% of lost wages actually incurred. Many times we have medical payment coverage commonly known as “Med-Pay”. Med-Pay coverage under our automobile policy pays 100% of reasonable and necessary medical expenses.
It is very important to coordinate the insurance coverages that are involved when you are faced with automobile accident injuries. You may want to reserve your “PIP” coverage for wages only and use your private health insurance to pay your medical bills. This maximizes your recovery under your own policy. Additionally, PIP coverage is now limited to $2,500.00 per incident unless you have been certified by a medical doctor as having an Emergency Medical Condition often referred to as “EMC”. You only have 14 days to be certified by a doctor with an Emergency Medical Condition. Once you have obtained that certification in your medical record you are entitled to the full $10,000.00 worth of PIP insurance coverage. Therefore, it is critically important to get to the right doctor or physician within the first 14 days following an accident in order to maximize your insurance coverage that you have paid for.
Florida law requires that all of your own automobile PIP and Medical Payment coverage be exhausted or used up before you are able to apply for coverage under your private medical insurance or care coverage.
The insurance coverage for the at fault driver or vehicle owner is referred to as “Bodily Injury Liability Coverage” and is only paid in a lump sum at the end of the case either as a result of a settlement or a jury verdict in your favor. The at fault insurance carrier will not pay piecemeal or pay your expenses or co-pays along the way.
How are fees calculated in personal injury cases?
All of the attorney’s fees for David M. Dunlap for personal injury cases are referred to as “Contingency Fees”. This means our attorney’s fees are contingent, or based upon, making a recovery in the case. If there is no recovery in the case, there are no attorney’s fees charged to you. We do not bill by the hour or require any up-front retainer.
There are no attorney’s fees charged for property damage reimbursement including rental car reimbursement, diminished value of your vehicle as a result of the collision or loss of use of the vehicle while it is being repaired. We allow those dollars to go directly to you. The attorney’s fee is charged only against the bodily injury portion of the recovery.
If I am in an automobile accident can I take my car anywhere to be repaired and who pays for the repairs, my insurance or the at fault insurance carrier?
Typically, the repairs to your vehicle will be paid by the at fault driver’s insurance carrier. Alternatively, you may choose to have your own insurance carrier pay the damages and they in turn will seek reimbursement (subrogation) from the at fault driver’s insurance carrier. The same is true if your vehicle is considered a total loss. One or the other of the insurance carriers will pay the “actual market value” of the car as it existed just prior to the collision and damage.
You are also entitled to other property damages including loss of use, rental coverage and the diminished value of your vehicle as a result of the damage and repairs. We can recover these for you.
Contrary to what you may be told by the at fault insurance carrier, you have the choice of having your vehicle repaired at the shop of your choice. The insurance companies often have claims offices and car rental services set up at certain large body shops with whom they do regular business. While this may be convenient and appropriate, in some circumstances it may not be right for you.
The attorneys at Dunlap Trial Law are happy to talk with you and make recommendations regarding property damage repairs, total loss of your vehicle and other property loss recovery that you are entitled to make.
What type of damages are we able to recover in personal injury cases in Florida?
Damages are available to victims of personal injury negligence in Florida of all types, including automobile accidents, slip and fall/trip and fall incidents, defective products, medical negligence, premises liability, negligent security or any other personal injury negligence claim. These damages include past medical expenses incurred as a result of the injuries, future medical expenses to be incurred over your lifetime, lost wages, future lost wages or loss of earning capacity over your lifetime, loss of household services if you are required to hire someone to do household tasks you were able to do before the incident. All of these are referred to as the “economic damages” in your case.
Additionally, you are entitled to recover the “non-economic damages”. These damages including pain, suffering, mental anguish, frustration, loss of enjoyment of life, change in your lifestyle, loss of the ability to conduct activities of daily living, psychological and emotional distress associated with a physical injury.
While the economic losses may be a result of mathematical calculations, there is no specific calculation for the non-economic damages in these cases. Each case is different and each case must be prepared from the beginning in a way to maximize the non-economic damages and thus your total recovery.
When a case settles the at fault party pays a lump sum and there is no specific designation as to what type of damages are incurred. Contingency fee attorney’s fees and the case costs are taken from the total recovery of the case before any payment of past medical expenses or other obligations are made.
In a wrongful death claim, who brings the case and how is it handled?
Florida has a specific statutory section known as the “Wrongful Death Act”. The Wrongful Death Act specifically sets out who is entitled to bring the case and how it is to proceed. Generally, the Court must appoint a personal representative of the estate of the deceased person or persons who is then identified as the plaintiff and is in charge of making a recovery for the beneficiaries and/or survivors of the deceased. In most instances, the spouse of the decedent is identified as the personal representative or the parent of the deceased child or the adult child of a deceased parent. Typically there is a family relationship involved, but the law does not require one.
The personal representative brings the case on behalf of the beneficiaries or survivors which would include the decedent’s spouse, parents and/or children. There are different damages available based upon who the survivors are. Most frequently those damages include past medical expenses, past lost wages, future lost earnings or earning capacity and of course, the main component, non-economic pain and suffering loss of the companionship type damages.
In some circumstances there are recoveries by the Estate of the decedent. This would include the potential future earnings, less expenses of the decedent over his or her lifetime. This is referred to as the prospective net accumulations. In some instances we direct the personal representative to allocate 100% of the recovery to the individual beneficiaries with no recovery going to the estate. This avoids directing money from the recovery to pay past medical expenses or pay other creditors who make a claim against the estate once it is opened and notification is published.
Florida law has set forth specific rules for damages involving medical negligence cases which can be very devastating to families. Primarily, there must be a spouse or a minor child (a child under age 25) surviving the decedent victim of medical negligence to bring a wrongful death claim against a doctor, hospital or medical facility. Additionally, there are specific rules that apply to damages in wrongful death cases against nursing home facilities which must be specifically explored.
The attorneys at David M. Dunlap, P.A. handling these types of claims can gather appropriate information and advise you on who has a claim and what type of claim can be brought when you or your family has lost a loved one as a result of another’s negligence.
Is a property owner automatically at fault if I am injured while on their property?
No, a property owner’s negligence depends on the specific circumstances surrounding your injury. The duty of care owed by the landowner to you as a visitor depends upon your reason for being on the property. The highest duty of care is owed to an invitee such as a guest or a business customer of a property owner. This is the most common situation and requires the property owner to maintain its premises in a reasonably safe condition free from defects that are known to the landowner but unknown to the guest. The injured person must prove that there was a defect on the property and that the landowner knew or in the exercise of reasonable care, should have known about the defect and did nothing to correct it. Alternatively, if the landowner is aware of a defect he may be relieved of liability if he has properly warned the guest of the potential danger or hazard.
Slip and fall, trip and fall and other premises liability cases are extremely difficult under Florida law. It is extremely important that we get involved in these cases as soon as possible to photograph the condition of the property as they existed at the time of the incident. It is critically important to identify witnesses at the business or restaurant or other location. Defects in the property are often fixed or abated by the landowner quickly after the incident making it extremely difficult to prove the condition. Oftentimes surveillance video captures the incident, but the surveillance video is recorded over after 36 to 48 hours and the evidence is lost. For these and other reasons it is critically important to contact the lawyers at David M. Dunlap P.A. as soon as possible after an injury on someone else’s property so that the investigation can begin immediately.
I am not sure if my case is a workers’ compensation case or a personal injury case or both; how do I know?
A workers’ compensation claim exists if you are injured while in the course and scope of your employment. Your employer would be required to provide 100% medical coverage for you and pay you 66 2/3% of your wages up to a state maximum compensation rate if you miss a certain number of days from work.
Many times, our clients are injured in the course and scope of their employment by a negligent driver or as a result of a defective property condition on another’s property. In these situations, you have a workers’ compensation claim and a personal injury claim. It is very important to coordinate the benefits and insurance coverages in this situation to maximize your recovery in both claim.
Unfortunately, the Florida Workers’ Compensation law gives the workers’ compensation insurance carrier a right to choose your medical doctors and control your medical treatment. The law requires that the workers’ compensation insurance be primary and first in line of paying medical expenses before any automobile no fault insurance or liability insurance. Additionally, Florida law gives the workers’ compensation insurance carrier the right to be repaid if you are successful in recovering from a negligent third party including another driver, vehicle owner or property owner. However, the lawyers at David M. Dunlap, P.A. can coordinate these recoveries and negotiate the repayment to the workers’ compensation insurance carrier to a fraction of what they paid or initially claim. If you have any question about whether your case involves workers’ compensation or personal injury call us and speak to one of our attorneys as soon as possible.