Find answers to the most common, basic legal questions here. These answers are for general information. Your case is unique and your personal circumstances may indicate a different answer than listed. Always feel free to call your attorney for an answer that fits the circumstances of your case.

General Questions

Q: What is a personal injury?

A personal injury (sometimes referred to as bodily injury) is any physical or mental injury to a person as a result of someone’s negligence or harmful act.

Some examples of personal injury include:

• Car and truck accidents
• Motorcycle accidents
• Slip and fall accidents
• Dog bites
• Boating accidents
• Home accidents
• Medical malpractice
• Wrongful death

Q: How do I know if I have a personal injury claim?

To have a personal injury case, you must be able to show that you have been injured, either physically or emotionally, by someone else under a negligence, strict liability or intentional misconduct theory. This means someone or some business was at fault for the injury.

Q: Can I get financial compensation in a personal injury claim?

Compensation for your injuries depends on several factors, including physical and mental pain and suffering, economic hardship or financial loss, decreased earning potential and physical impairment, including disfigurement. Depending on the type and extent of your personal injury, you may be eligible for compensatory (actual) damages, and punitive (punishment) damages. The damages may include the following:

• Medical bills
• Lost wages
• Pain and suffering
• Physical disability
• Disfigurement
• Permanent scars
• Emotional trauma
• Mental anguish
• Loss of enjoyment
• Loss of love and affection
• Embarrassment
• Mental disability
• Property damage
• Out-of-pocket expenses (transportation charges, house cleaning, grass cutting and others)

Q: How much time do I have to present my case?

The statute of limitations is a time period within which you must take action in order to preserve your rights in a claim. The statute of limitations varies depending on the case and may be different in each state. Most often the state’s statute of limitation that applies to your injury is that of the state where your injuries took place. You should consult our attorneys as soon as possible to determine the length of time you have to bring your claim.

Q: How long does this type of case take?

The answer to this question is primarily determined by the complexity of the case. The last thing we want to do is resolve a case while our client is still healing or does not have a good understanding of what their future medical condition will entail. It is not a benefit to our clients to rush settlement of an injury case and then find out post-settlement that they need additional surgery or will have ongoing future medical expenses.

Often the average auto accident injury claim, premises liability case or other types of general negligence case is resolved within anywhere from 6 to 12 months after completion of the recommended course of medical treatment. However, if your case is forced into the court system toward trial, it may take considerably longer.

Q: Will I be able to recover money even if I am partly at fault?

Yes. In many cases accident victims can recover money even if they are partly to blame for the accident. There are, however, many factors that go into attributing a certain percentage of fault to each party involved. You should consult an attorney to discuss the specifics of your case.

Q: What are things I may not know that could hurt my case?

• Giving a recorded statement to the insurance company without consulting a lawyer can badly damage or destroy your case
• Exaggerating or underestimating the extent of your injuries
• Talking to anyone about your case (except us and your doctors)
• Assuming the insurance adjuster wants to help you – the adjuster’s sole job is to save the insurance company’s money
• Witnesses and evidence must be secured and maintained immediately after an accident, or they will be lost forever

Automobile Accidents

Must I report an accident?

Absolutely. You should call the local police, sheriff’s office or highway patrol. At your first opportunity, report the accident to your insurance company. Within ten days, you and the other driver must report the accident to the Department of Motor Vehicles if:

(a) the damage to either car is more than $500.00; or
(b) anyone is injured.

You should get a copy of the accident report from the police or insurance company.

What should I do if I’ve been injured in an automobile accident?

When a motor vehicle is in an accident, it is important that certain action is taken. The name and address of the operator of each vehicle should be obtained. Additionally, the name and address of the owner of each vehicle involved should be obtained and the license plate number of all vehicles should be recorded. Lastly, the name of the automobile insurance company for each vehicle should be obtained. If possible, obtain the names, addresses and telephone numbers of any witnesses to the accident. Obtain photos of the damage to both cars, if possible, or make arrangements to get such photos.

If there has been any type of injury, the police should be called to investigate the accident. The police officer will write a report which includes the details of the accident and the nature and extent of any damages and injuries. Insurance companies will require that a report of the accident be obtained before providing any benefits. It is important to immediately contact your own motor vehicle insurance company to report any property damage or personal injury. If you or a passenger is injured in a motor vehicle accident, prompt medical attention should be obtained.

Remember:

• Do not leave the scene until police or medical aid arrives. If you have hit a parked car, leave a note and an explanation along with your address and phone number
• If there is an injury, seek medical help immediately. If you know first aid and are able to help, do so. If circumstance allow, you may drive an injured party to medical aid. If the party is in danger by remaining where they are, but they are too injured to be moved, you should move them out of harm’s way
• Gather all the information you can such as: the name of the other driver; their address; vehicle registration; name of the owner or owners of the vehicle, if not the driver; driver’s license number with state and expiration date; birth date; phone numbers (office/home/cell phone); insurance company; names, addresses, and phone numbers of passengers
• If you are aware of witnesses, get their identification information. If they drive off before you speak with them, try to get their license plate number
• If you are given a traffic ticket, is okay to sign it as this is not an admission of guilt. But, be sure to contact your attorney before you pay any fine or appear in court
• Take note of the date, time, location, road conditions and weather conditions
• Draw a diagram of the accident scene
• Take photos of damage to both cars and any damage caused to any other property
• Write down the facts as you remember them as soon as it is possible to do so
• Describe, in writing, any injuries you may have sustained and keep a running list of any medical providers with whom you treat

What is Personal Injury Protection (PIP)?

Personal Injury Protection (PIP) coverage is part of your Florida automobile insurance coverage and is required by law in the amount of $10,000.00. PIP pays 80% of medical expenses, 60% of gross wage loss, plus all expenses reasonably incurred in obtaining services that you would have performed for the benefit of your household (such as housekeeping and child care) or yourself had you not been injured. PIP also pays reasonable mileage or expenses for transportation to and from doctors’ offices for medical treatment. All PIP payments are made by your own insurance company, regardless of whose negligence caused the accident. That is why PIP is often referred to as No-Fault coverage. PIP is payable for any injury which arose out of the use, operation or maintenance of a motor vehicle (but not a motorcycle).  PIP may also be offered with a deductible, which reduces the amount of coverage and increases your out-of-pocket expenses if you are injured in your accident.

Why am I responsible for my PIP deductible?

The Florida Legislature has deemed that in the no-fault or PIP statute, policies with up to a $1,000 deductible are allowed by the insurance companies to be sold to consumers. Although this is the largest deductible allowed, it is not mandatory.

When consumers go to insurance companies to buy insurance, they can elect to not carry a deductible or to have a deductible much smaller than a $1,000 deductible. Unfortunately, if you choose to carry a PIP deductible, you are responsible for that deductible amount even if the accident which caused your injuries was not your fault.

Why does my insurance company have to get involved it the accident was not my fault?

Even when our client is in an accident that is based on the negligence of another person, we still are able to make a claim for personal injury protection benefits, more commonly known as PIP. This is the “no-fault” insurance that the Florida Legislature designated would pay 80% of a person’s medical bills and 60% of a person’s lost wages, up to $10,000.00, whether or not they are at fault.

Your personal insurance also becomes increasingly important in the unfortunately common situation where a negligent person causes an accident and they are uninsured or underinsured. You can then make a claim, provided you have paid a premium for uninsured and underinsured motorist coverage with your own insurance company. In these cases, your damages would be paid by your own insurance company as if they have stepped into the shoes of the responsible party.

Can I control whether my car is repaired or replaced?

This can be a difficult issue. For many people, getting back into their own vehicle, as long as it is safe, is a priority. Under the current state of Florida law, the insurance company has the option to either repair or replace your vehicle, depending on whether it costs less to replace your vehicle than to repair it. If the “actual cash value” of the vehicle, as determined by the insurance company’s chosen valuation program, is less than the estimated cost to repair the vehicle, plus any anticipated supplemental repairs, the insurance company will declare your vehicle a “total loss.”

If your car is declared a “total loss,” the insurance company buys your car from you for its actual cash value and then proceeds to have it destroyed or sold for salvage at auction. If you wish to keep the wrecked car, you may purchase it back from the insurance company for its salvage value. The insurance adjuster can deduct the salvage value from the settlement and you can keep the car.

Often, however, the insurance company chooses to repair a vehicle rather than replace it, although it may physically appear “totaled” to you. In this case, if you are concerned about the safety of the repaired vehicle, you should contact our office to discuss your options.

How is the market value of my car determined?

You are entitled to recover the “fair market value” or the “actual cash value” of your vehicle immediately before the accident. Two common sources used to estimate fair market value are Kelley Blue Book and ADP Claims Services software. Other sources of information for market value are the local newspaper or the Auto Trader, which may list the for-sale price of cars of the same make, model, and year as yours. Occasionally, an expert vehicle appraiser is used to help prove the value of your vehicle.

What if I am “upside down” on the loan for my car?

If you owe more money on the loan for the car than the fair market value of the car, you are “upside down” on the loan. If your vehicle is deemed a total loss, the insurance company is required to pay the “actual cash value” of your automobile. It is our objective to make certain that they live up to their requirement to pay you in full.

In a situation where the amount paid pursuant to “actual cash value” does not come close to the amount owed on the loan, you are responsible for the difference between the amount owed on the auto loan and the actual cash value (ACV) paid to the lender by your insurer. The only way to protect yourself from this common occurrence is to carry “gap” insurance when you purchase the vehicle. This type of coverage will cover the “gap” between the ACV and the loan payoff amount.

What kind of parts will be used in the repair?

You have the right to demand that only original manufacturer parts be used in the repair, so if your car is a Pontiac, you should receive genuine Pontiac (GM) parts. Since your car was probably not new at the time of the accident, however, the mechanic may use refurbished or reconditioned parts.

What if my car already had some damage before the accident?

If your vehicle had damage prior to the accident, it can be difficult to determine exactly what portion of the damage was caused by the accident itself. For example, if your car had a mechanical problem, the insurance company may claim that it existed prior to the accident if there is evidence that shows substantial wear and tear. Therefore, it is important that you can prove the connection between the auto accident and the damage you are claiming. Sometimes your mechanic or collision repair personnel will assist by stating an opinion as to the age of body damage or the cause of a mechanical failure.

Will I have to pay the towing and storage costs?

In most cases, unless there is a dispute as to who was at fault in the accident, the insurance company for the driver who caused the accident will pay the reasonable towing and storage costs (if necessary) of your car. After evaluating the vehicle, if the insurance company declares the car a total loss, they will have the car moved to a wrecking yard or a free storage area. If you refuse to allow the insurance company to move your car, however, you will have to pay the storage costs from the day of your refusal forward, or you can pay to have it towed to your home. To avoid exorbitant storage costs, it is imperative that your car be moved from the garage or tow yard as soon as possible.

What about license and registration fees that I had to pay to drive the car?

In order to drive your vehicle, you had to pay tag fee and registration fees. You are entitled to be reimbursed for the prorated amount of these costs that are unused. The insurance company should also reimburse you for tag transfer fees and, in some cases, a prorated amount of sales tax on the actual cash value of the car at the time of the accident.

What if I need a rental car? Do I have to pay for it while my car is being repaired?

If you caused the accident, or if there is a dispute over who is to blame, then you must either pay for the rental car yourself or seek coverage under your own insurance policy if rental coverage is available. Many insurance contracts do not provide for rental coverage for their own customers, so you need to contact your insurance agent to determine what coverage exists. If the other driver is at fault, then we will demand that the insurance company for the person who caused the accident provide you with a rental car for the time needed to repair your vehicle. Sometimes, you must pay the rental car bill first, with reimbursement coming from the insurance company later.

What kind of rental car am I entitled to?

The insurance company has to pay for the rental costs of a comparable substitute vehicle. Often, there are disputes as to what qualifies as a “substitute” vehicle. Essentially, it should be a vehicle of similar size and quality, within the confines of what is available for rent.

How can I protect my interests if I have an accident caused by someone else?

Make certain that you act promptly to gather and preserve any evidence and witnesses to help investigators. See a physician quickly to evaluate any injuries. Call Goldstein, Buckley, Cechman, Rice & Purtz for a free consultation regarding your case.

Case Valuation

What is my case worth?

Many factors are taken into consideration when a personal injury claim is evaluated for settlement purposes. Cases have value based on the following elements, assuming the liability (i.e. who was at fault) is proven.

Under the law, plaintiffs in personal injury cases are entitled to both economic and non-economic damages. These include:

• Past Medical Bills
• Future Medical Bills
• Past Lost Wages
• Loss of Future Earning Capacity
• Pain and Suffering
• Inconvenience
• Loss of Capacity to Enjoy Life
• Mental Anguish
• Disability
• Disfigurement

There is no tried and proven formula to determine exactly how much a case is worth and it may depend on several factors including: how the evidence is received and evaluated by a jury; whether or not there are any inconsistencies in testimony; the availability of medical records; pre-existing conditions and other factors which would allow the insurance company’s lawyer to attack the credibility of the injured party. However, when negotiating settlements and trying cases before juries in the state of Florida, we are generally able to establish a “range of value” of cases after the attorneys working the case have been able to review all of the medical records and bills and see how the client has responded to medical care and treatment. Because every case is different, even with all of this information, it is very difficult for anyone to establish an exact figure as to the net worth of a case. But, typically, a range of value can be determined.

How do I get compensated for injuries?

If the other driver was at fault, you may be entitled to compensation for your injuries as well as any pain and suffering. This can include a wide variety of expenses related to the accident injuries such as lost wages, etc. While you may ultimately decide not to sue for damages, it is wise to get input from an attorney to protect your rights.

Can’t I just estimate the cost of my own injuries right away?

Because the full extent of many injuries may not be known for quite some time after the accident, an attorney can help you evaluate your potential losses. It’s devastating to sign away your rights only to later discover that your injuries and losses were worse than you originally thought.

Should I accept an insurance company’s settlement offer?

Before accepting a settlement, it is always in your best interest to consult an attorney. Adjusters work for the insurance company, not for you. Their job is to settle the matter for the lowest possible cost to the company. An attorney will work for you and ensure that a settlement results in full compensation for your injuries. You don’t want to sign away your rights only to later discover that your injuries and losses were worse than you originally thought.

Fees and Costs

What are the attorney’s fees and costs for a personal injury case?

As set forth in our Authority to Represent, our fees in a personal injury case are contingent upon the financial recovery in your case. The fees are in accordance with guidelines set by the Florida Supreme Court. If there is no recovery, there is no fee. Therefore, we share a common objective of obtaining a favorable result in your case. Costs are incurred in the pursuit of your case. We do not ask you for a cost deposit up front and we do not bill you for the costs as they are incurred. The costs are reimbursed to us at the end of the case. The most common costs are for investigation and medical records. Our financial arrangement will be clearly and fully explained at the Initial Interview; and several months after your file is opened, a follow-up explanatory letter will be sent to you.

Are the services of Goldstein, Buckley, Cechman, Rice & Purtz expensive?

Our firm utilizes the standard contingency fee contract established by the Florida Bar. Your initial consultation is free in personal injury and wrongful death matters. In Florida, attorneys who handle personal injury claims are paid on a contingency basis. This means that you don’t have to pay anything unless and until we obtain a recovery of your behalf. Our fees will be deducted from your settlement or award. If there is no recovery, personal injury attorneys don’t get paid.

Why must I pay “costs” in my case?

In Florida, a lawyer or law firm is not permitted to obtain a financial interest in the client’s case. To ensure this does not happen, Florida Bar rules governing the conduct of lawyers allows a law firm to advance the costs of a case or litigation, but the client must remain responsible to the law firm to reimburse the costs of the matter. In personal injury cases, our firm advances all costs associated with handling the case. We are then reimbursed when a recovery is made on behalf of the client.

Depending on the type of case involved, costs can be minimal or can run into thousands of dollars if complex litigation is involved. In cases that are settled before a lawsuit is filed, the costs are much less.

Our firm is permitted to advance the costs necessary to properly prepare your case and protect your legal rights. In certain cases, we can recover these expended costs from the insurance company directly.

Filing Suit

Do I have to “file suit” or go to court?

Filing suit is the actual act of filing legal papers at the courthouse. This is done only with the client’s permission after all efforts have been made to resolve the case in pre-suit negotiations. If the insurance company for the party at fault agrees to pay what we believe your case is worth, and you wish to settle for that amount, then you don’t have to go to court.

If the insurance company refuses to pay the amount acceptable to you, then we have to proceed in court. Our accident lawyers make sure you’re fairly compensated for your injuries and losses. Over the last fifteen (15) years the insurance industry has become extremely aggressive in defending these cases and we find ourselves in litigation more and more.

When a law suit is filed, it does not necessarily mean that you will one day be walking up the courthouse steps with one of our lawyers. However, it does mean that it is a possibility. Many injury claims can be settled for their full value through negotiation, mediation or arbitration, without you having to go to court. However, some complex cases may require that you participate in legal proceedings.

Although most cases resolve before trial, there is a possibility that once a law suit is filed in your case, it can go to trial. Regardless of when in the legal process a case settles, we strive to keep the client informed of their options during the entire process. If the case needs to be tried, we are prepared to try it.

Can you predict from the beginning whether a case will settle or go to court?

We cannot predict whether a personal injury case will settle or wind up in front of a jury in a courtroom. Generally, most cases settle out of court because settling reduces risk and is cost-effective for all parties. Whether legal action is ultimately necessary to bring your case to its final disposition is something that is determined after all efforts to settle the case are exhausted. Although the majority of cases are settled, we prepare every case as if it were going to trial. That preparation assists in facilitating a settlement.

Odds and Ends

What is a “Letter of Protection”?

In many instances people with more serious injuries do not have insurance coverage or have exhausted their PIP benefits. When that is the situation some medical facilities and physicians are willing to take a “letter of protection.” This is a document that gives the patient the ability to keep treating without paying for the medical bills immediately or at the time of treatment. These letters of protection typically, if accepted by the facility or physician, allow the patient to keep treating and once a recovery is made, the doctor or health care facility is reimbursed. However, it is always made clear to the client that even with a letter of protection in their medical file, they are ultimately responsible for the medical bills in the event the case does not resolve as expected.

What is MMI?

When you are treating with a doctor, eventually we request a final narrative from the physician at the conclusion of your treatment. When we speak of conclusion of treatment, that means the point at which the treating physician has decided you are at MMI. This is an abbreviation for “Maximum Medical Improvement” and simply means that you are as good as you are going to get. That is not to say you are as good as you were before the accident, but that your condition is stabilized and you have a loss. It is at that point that some doctors assign, and insurance companies request, a permanent impairment rating. This is generally done pursuant to AMA guidelines.

In Florida, to be compensated for pain and suffering in an auto accident case, it is required that a treating doctor state that a permanent injury exists. Therefore, upon completion of the doctor’s recommended course of treatment, your attorney will specifically request a final report indicating a permanency rating from the doctor.

Premises Liability

What is premises liability?

Premises liability generally refers to accidents that occur due to the negligent maintenance, or unsafe conditions upon property owned by someone other than the injured victim. The State of Florida requires landowners to maintain their property in a manner that does not cause injury to those that, for various reasons, visit the property. This law pertains to both business owners and homeowners. It is crucial to a premises liability settlement to be able to show how long the defect or injury-inflicting element was there, how visible it was and how much notice the owner had of the dangerous condition before the accident.

Defects can include uneven or broken pavement, wet or slippery floors, or other dangerous conditions on premises.

What should I do if I’ve been injured in a slip & fall accident?

Most businesses and homeowners carry liability insurance to protect them in the event that someone is injured while on their property. The owner or possessor of a residence, land or place of business has the duty to exercise reasonable care for the protection of those individuals who are invited to come upon the premises, i.e., individuals visiting for business or pleasure. In such cases, the owner, company or person must inspect the premises to discover any dangerous conditions and warn the invitee of dangers upon said premises. Those injured by a negligent owner or possessor of a premise may recover damages for their injuries, including loss of income, medical expenses, pain and suffering, etc.

The Service of an Attorney

When is a personal injury attorney needed?

If you have been seriously injured or are unsure as to the outcome of your injury, you are better off hiring an attorney as soon as possible. You should always consult an experienced personal injury attorney before you give any statements or sign papers of any kind. A qualified personal injury attorney will ensure that you receive fair compensation for your injuries.

How soon should I call an attorney?

You should consult an attorney as soon as possible after being injured. In most cases there are time limits for filing claims after an injury occurs, and if this deadline passes, your claim could be dismissed. You should seek an attorney’s advice before admitting guilt or any responsibility for the accident and any resulting injuries, including your own. In addition, finding witnesses and gathering evidence to support your case becomes more difficult the longer you wait.

How do I choose an attorney?

The success of personal injury attorneys is based on several factors, including education, legal skill and experience. The attorney you retain should have a proven record of winning cases similar to yours and should be willing to thoroughly explain his or her recommendations based on the specific details of your case. Your attorney should also have extensive experience settling cases through negotiation and trying cases in court. Another very important factor is for you to feel comfortable with your attorney, and confident that your interests will be a top priority. The hiring of an attorney is an important decision and should not be based on advertising alone. You should ask the questions set forth above to ensure that the attorney you hire has the experience your case may require.

Wrongful Death

What is Wrongful Death?

Wrongful death occurs when a person’s death was caused by the negligence, willful and wrongful act, omission or default of another, such as careless driving or a deliberate murder. In addition to injuring the person who died, people who depended upon the deceased for financial or emotional support may be entitled to compensation for the wrongful death. The State of Florida has enacted a statute permitting a lawsuit to be brought by the relatives of a person who died as a result of a wrongful act.

Under what circumstances can a wrongful death occur?

Wrongful Death law provides financial compensation to the family of a person whose death was caused by the negligent, willful or wrongful act of another. Wrongful death cases are filed as a result of a variety of situations, including:

• Medical malpractice resulting in decedent’s death
• Automobile, bus, train, airplane or other common carrier fatality accident
• Death during a supervised activity (sports tournament, field trip, etc.)

Goldstein, Buckley, Cechman, Rice & Purtz, P.A. has six offices in Southwest Florida. The offices are located in Fort Myers (two offices to serve you), Cape Coral, Naples, Lehigh Acres, and Port Charlotte for your convenience. Call us first at 800-332-9404 or fill out a simple case form today.