How Strong is My Case?

The strength of a negligence case basically comes down to two concepts:  Liability and Damages.  Lawyers look at these two principles to determine the value of a claim, and may refer to a client’s “liability case” or “damages case” (as though each one is it’s own individual case)

Before we discuss damages, let’s address liability, because regardless of how big the damages are, unless you have a case for proving someone else was at fault, you will have no valid claim. When lawyers and adjusters talk about liability, we are really talking about “fault.” In other words, who was at fault in causing the accident? The legal concept of “negligence” comes in to play here, which involves proof that the other motorist breached a legal duty to you (the duty to pay attention while driving, for example). It has been my experience that the vast majority of the time, this is the easiest part of an automobile accident case to prove.

However, there are certainly other times when fault is disputed. The at-fault party’s insurance company may take the position that you were at fault. For example, we see this arise when both parties say they had the right-of-way. Even if we, assume that you have a strong case of proving “fault” or “liability” on the part of the other motorist, it does not necessarily mean you have a valid case. You still must prove that as a result of the other person’s negligence, you have sustained damages.

Assuming that you have a strong case for proving fault, let us look at what the typical damages are that the injured motorcyclist will seek in a Florida accident claim (we are leaving property damage out of this):

I.   Past Lost Wages:  If you have lost wages as a result of the accident at the time your case is settled, then you are entitled to be compensated for those wages.

II.  Future Impairment of Earning Capacity: If you are no longer able to work, or not able to work as much, or if you are in a lower paying job due to your injuries, you are entitled to claim damages for future wage loss. This may be true even if you are making the same money, but there is reason to believe that you may not be able to work as long in your career due to the residual medical problems. This figure can sometimes be quite high (young professional), or nonexistent (elderly or retired person).

III.  Past Medical Expenses:  At the time of settlement, you will likely (but not always) have outstanding medical expenses. This must be added to the total claim.

IV.  Future Medical Expenses: When you settle your case, you get one bite at the apple. For that reason, you better get enough money if possible to pay not only for your past damages, but future as well (there is no “re-opening” a case later). Future medical expenses are such an item. If your doctor has rendered an opinion that you will require future care, than this becomes part of your claim. Future care can involve many types of treatment. You may be more prone to needing surgery in the future, or you may just need periodic massages, injections, or medication therapy. All of these things must be factored into your demand to the insurance company.

V.  Past Pain, Suffering, and Mental Anguish: You are entitled to fair compensation for past pain and suffering up to the time of settlement. Pain and suffering involves quality of life issues.
If you used to enjoy fishing, working on your bike (or bowling, golfing, etc.), and can still do these things, but only with pain, then your quality of life may have been impaired.  If you are completely unable to do these things, then the impact to your life is even greater.
If you are depressed due to your injuries, or your relations with your significant other are diminished, then that can also affect your quality of life.  

VI.  Future Pain, Suffering and Mental Anguish: If you have been permanently injured, then your claim should include future pain and suffering.  Some lawyers recommend a figure of three times the amount of your economic damages (i.e., three times of your past/future wage loss and medical expense damages). Others use a more arbitrary approach. Personally I analyze this amount based on the unique facts of each case.
What is “fair” to one jury is not necessarily “fair” to the next jury. Do understand this: The pain and suffering component of damages can be significant and is sometimes considered the most substantial part of the claim.

How long do I have to file a claim?

You will have four years from the date of accident to formally file a lawsuit against the at-fault party in a typical Florida motorcycle accident case.  However, there are a lot of things that should be done quickly after the accident if you have suffered injuries. 

Should I allow the claim's adjuster to take my statement?

I never allow my clients to give a statement outside of my presence.  You will likely have to allow your own company to take your statement, since you have a contractual obligation to do so by virtue of the insurance policy.  However, you have no obligation to give a statement to the at-fault person's insurance company.

Do I Still Have a Case if I Was Not Wearing a Helmet?

If the accident was the fault of another motorist, and it caused injuries, then there is still a case even if a helmet was not worn.  If some of the injuries claimed involve head trauma, then some fault may be apportioned to the injured motorcyclist.  Nonetheless, a claim does still exist, and at worst the value of the claim might be reduced due to the lack of a helmet.

As a Motorcyclist, What is the Most Important Insurance Coverage I Should Carry?

Given that motorcyclists are not included in the Florida No-Fault scheme, some riders purchase no insurance or minimal coverage.  This is not wise.  For one thing, given that injuries can be so severe in a motorcycle accident, it is essential to carry optional medical coverage, as well as uninsured motorist coverage.  You should be aware of just how common it is that the at-fault party carries either no liability coverage, or very minimal limits.  Uninsured Motorist coverage will protect you if you are injured by a person who carries no coverage (or insufficient coverage).  It will be there to compensate you for your injuries, just as though the at-fault party was insured for that amount.  So, the easiest way to explain it is this: Buy as much Uninsured Motorist Coverage as you can afford! (some insurance companies cap the maximum amount of Uninsured Motorist Coverage available on a motorcycle policy)

You should be aware that you must purchase Bodily Injury Liability coverage (coverage that will compensate someone else if you cause the accident) to qualify for Uninsured Motorist Coverage.  In fact, you cannot purchase more Uninsured Motorist than Bodily Injury (thus, if you want $100,000.00 in Uninsured Motorist Coverage, you must purchase that much Bodily Injury Liability Coverage). 

On the issue of Bodily Injury Liability Coverage, a couple of things I think should be pointed out as to why you should purchase it:

1. Again, because you have to purchase it to have the all important uninsured motorist coverage, and
2. Because it will protect your assets in the event that your negligence causes injuries to another.

If you can afford it, and you have substantial assets to protect, you may want to consider an excess coverage policy, such as an umbrella. If you do purchase this excess coverage, be sure to add the uninsured/underinsured motorist coverage.