FAQ

The primary issue in evaluating a claim for personal injury relates to the “standard of care” for the incident. In simple terms, every person is liable to others for injuries, when those injuries arise from the act or omission of the person causing the injury. When presented to a jury, the issue is whether the person who caused the injury failed to satisfy the standard of care for any person in the same or similar situation. All persons are expected to act with reasonable care in their actions and choices. This is subject to interpretation in virtually all situations, which is why we have jury trials. The real issue to be considered, for example, is whether the injury arises from the failure of a landowner to keep the property in a reasonably safe condition, or whether the injury arose from the failure of a driver to act reasonably under particular road conditions. Regardless of how the injury occurred, the first thing to consider is whether the person who caused the injury failed to act reasonably. If they did not, they may be liable to you.

Most damages in a personal injury claim fall into three categories, those being economic, non-economic, and punitive. Economic damages are associated with any financial impact to the injured person, due to the act or omission of the defendant. If a person suffers an injury due to the negligence of another, and incurs medical expenses or loses wages, these may be recoverable as economic damages. Non-economic damages are less defined and are more subjective, as these relate to the pain, inconvenience, and loss of enjoyment of life as consequences of someone else’s negligence. Because these damages tend to be more abstract, you should retain counsel with experience in presenting these issues in a wide variety of settings. Lastly, some claims warrant punitive damages, which are designed to punish the defendant for their actions, rather than as recovery for the plaintiff. These damages require a lot of legal wrangling, and require an evaluation of the specific actions taken by the defendant to cause the injury.

The vast majority of personal injury cases involve insurance in some form. Whether the case is associated with professional negligence or malpractice, or by someone that owns property in a premises liability case, most individuals or property are insured. Most insurance policies are broad in their protection of people against their own negligence. When a lawsuit is filed, the insurance company for the defendant will even retain an attorney to defend the lawsuit for its insured. When we take a new case, in addition to our evaluation of the liability issues and the damages, we also examine the resources to be able to recover for our clients. Under Florida law, we are able to get access to defendant’s insurance policies and make an informed decision as to the coverage available. The process of evaluating insurance is often the most important part of the legal representation of a client, as to impacts the client’s decision to pursue the claim.

The insurance company is obligated to evaluate your claim in a timely and thorough manner. In most claims, be it sinkhole, hurricane, water damage or otherwise, this will necessitate the hiring of an appropriate professional to determine the nature and extent of the damage. The findings of these experts are not final, and you are free to obtain your own experts to make their own independent determination. While it is important for you to continue to cooperate with the insurance company, you are entitled to present your own evidence and opinions to support your claim. As to whether the filing of a lawsuit is necessary, the State of Florida provides for a variety of solutions to avoid litigation (e.g. mediation, neutral evaluation). The important thing for you is to obtain an independent evaluation of your claim, so that you can determine at that stage what options may exist for you.

Under Florida law Section 627.428, Florida Statutes, an insurance company must pay the attorneys’ fees and costs involved in an insurance dispute with its insureds. This law is designed to punish insurance companies from making poor decisions in their evaluation of claims. This law is interpreted liberally for the benefit of people who buy insurance. For example, if you have a dispute regarding sinkhole damage and are forced to hire a sinkhole attorney, you are able to recover your fees from the insurance company if you win against the company. This is the case even if the insurance company obtains the opinion of an expert that says there is no sinkhole activity at your property. Thus, even if the insurance company reasonably believed their decision was correct, they still must pay your attorneys’ fees and costs if you prevail. In so doing, this encourages insurance companies to take great effort to assist their insureds and to pay claims when they should.

We always recommend that insureds notify their insurance company immediately if they believe the amount of money paid on a property damage claim is not sufficient to return the property to a pre-loss condition. However, we recognize that sometimes people are not aware until much later that they may need additional amounts of money under their insurance policy. The classic example of this relates to an insured that learns months or even years later that the fire damage to the home was worse than originally believed. While there are a series of exceptions, the latest you would ordinarily be able to dispute a payment for property damage would be five years from the date of the original payment. Again, there are many exceptions to this, and the facts of the claim will drive the ultimate time frame.

In common circles, these terms are often used interchangeably, but they are all very different. Starting with the term “litigator,” this term is used to refer to a lawyer who files lawsuits and participates in mediations and negotiates settlements between a client and an opposing party. This is the most common role of attorneys, given that the vast majority of lawyers rarely if ever actual participate in trials or present cases to juries. Most people would be surprised to learn that most lawyers have very little experience in the courtroom, but instead urge their clients to settle without going to court. This is because trial work requires particular skills and is costly for a law firm to front the costs. Nonetheless, retaining a lawyer who can document their experience in the courtroom assures an ability to maximize recovery. You should always ask a lawyer for a list of the cases they have tried, with their results. If a lawyer rarely, if ever tries cases, they would be best described as a litigator, and would likely recommend settlement without a trial. The term attorney refers to all lawyers, regardless of whether they participate in lawsuits, or draft documents for business transactions.

Insurance companies are obligated to conduct a complete and thorough investigation of all claims. Following this process, they must confirm or deny coverage within a reasonable period of time. Once a decision on an insurance claim has been made, the insurance company must provide you a reasonable explanation, in writing, for the basis for their decision. In simple terms, if you file a claim for property coverage, you should be treated fairly and in good faith, without delay. If an insurance company fails to act consistent with these standards, they may be exposed not only to a claim for breach of contract, but also for a separate claim of bad faith. This is a unique cause of action and permits an insured to obtain other damages not recoverable under contract or policy of insurance. An insurance lawyer can provide you the specifics on these technical claims. Whether you have a sinkhole claim, a fire loss, or any other property claim, the issue of insurance bad faith is always something to evaluate.

The primary rule in the United States is that each party pays their own fees, unless there is a contract between the parties that says otherwise, or if there is a specific law associated with the kind of dispute involved. This is often a hindrance in modest commercial disputes, as the cost of hiring counsel can often exceed the likely recovery. For insurance disputes, there is a specific law permitting the insured’s lawyer to be paid from the insurance company if the insured wins. Experienced commercial trial lawyers, especially experienced insurance lawyers, can find avenues to recover fees from your opponent. In personal injury cases, the fees are often paid from the recovery, where a percentage of the total recovery is paid to the lawyer, but only if a recovery is made.