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Being shot can be very traumatizing event. As a Miami shooting lawyer, it is something that I see more and more often these days, unfortunately. If you don’t believe me, a simple media search will get you multiple new incidents every week. Because of that, it is critical that you have a plan in place in the event that you are shot in Miami.

Here are some things you should keep in mind if you ever find yourself the victim of a shooting:

Get to a safe place and away from the threat as soon as possible

The first thing to worry about is your safety. If you are the victim of a shooting, the number one thing you need to do is survive. If you don’t look out for yourself, it is likely that no one else around you will be looking out for you under such a stressful situation. Make sure to maintain your situational awareness to the best of your ability, and try to get yourself to a safe place as soon as possible. Most shootings are not mass shootings where the shooter walks in with an intent to kill multiple people. Most shootings are robberies gone wrong, assaults on specific people, or accidents. Because of this, getting to a safe place will not be as daunting as it sounds.

If you are conscious and able call 911

The paramedics will take several minutes to respond, depending on where they are, so the quicker you call them the quicker they will be able to respond with lifesaving first aid. Many gunshot wounds can be devastating. Depending on the caliber and the amount of times you are shot you could be losing a lot of blood. That is why getting emergency medical aid as soon as possible is extremely critical. If no one calls 911, no medical aid may be forthcoming until it is too late. You should never assume that someone else has called 911. You should be the one to call, as soon as possible and provide them with any information they need to get to you as soon as possible. The earlier they can get to you, the higher your chances of survival.

If you are able, apply pressure to the wound to slow down the blood loss

If you have been shot in an extremity, like an arm or a leg, use your clothing to reduce the blood flow to the limb by using it as a tourniquet. Make sure to not apply so much pressure that you cut off all the blood flow to your limb.  Completely cutting of the blood supply to the limb for an extended period of time can cause your tissue to die off. While this is better than dying, it is not ideal if you can avoid it. You wouldn’t want to lose an arm or a leg if you could have survived with all your limbs by applying a bit less pressure.

Here is a great clip on making a makeshift tourniquet:

Tell the police the details of your shooting

Assuming you fell victim to a shooting while going about your lawful life and not while trying to rob a bank, it is critical that you share all the details of what happened with the police. The police will conduct an investigation that could lead to the criminal prosecution of the shooter. While that is only half of the justice equation when you’ve fallen victim to a shooting, it is a very important half. That is because the police investigation could assist your lawyer in getting you justice in the civil realm.

Call a Miami Shooting Lawyer

First off, I know what you’re thinking, what is a shooting lawyer? Is that a guy who kicks down doors and shoots my problems away? No, not exactly. A shooting lawyer is a lawyer that handles shooting injuries. If you’re in Miami you’d want to call a Miami shooting lawyer. This is because a Miami shooting lawyer would be most familiar with the court system in Miami, and also the way the different police departments operate.

But, why would you need a Miami shooting lawyer if you’ve fallen victim of a shooting in Miami?

Glad you asked. Most shootings are not only the fault of the person actually committing the shooting itself, but they are also the fault of the property owners in which the shooting took place. For example, let’s say you’re in a store in Miami minding your own business when a person comes in to rob the store. Let’s say the robber gets upset and shoots you, a customer, while the robbery is in progress. Chances are that this was not the first violent crime to happen at that store. Chances are that the owners of the store knew that this shooting was a real possibility. Chances are that they did nothing to help prevent or minimize the incident, even though they knew that it was reasonably expected to happen.

Under Florida law that means that the store-owner is responsible for your injury. That means that the store owner would be responsible for making you whole, which is the lawyer way of saying that they have to pay you enough money to make up for the physical, emotional, and financial losses that you suffered as a result of being a victim of a shooting in their store. Because that is what we call “civil law,” the police or prosecutors can’t help you with that. The only people who can help you with that are lawyers that handle these kinds of cases. That’s why after you’re safe, and followed every other tip in this list you should call a Miami shooting lawyer to help get your life back on track.

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Most people don’t think of hiring a gunshot victim lawyer while they are recovering from a shooting injury. This is because most people don’t know that if you’ve been shot through no fault of your own, you have rights and may be entitled to have the responsible parties compensate you for your injuries. While most of the time the person who shoots another does not have the money to make that person whole, there are usually other parties who are also at fault for a shooting incident.

A gunshot victim lawyer will tell you that the property owner may be responsible for your shooting injury

In Florida, property owners have a duty to keep their property in a reasonably safe condition. That means that they have a duty to make sure that people on their property do not fall victim to reasonably foreseeable acts of violence. Put simply, if you’re a property owner and you know that everyone around you is getting robbed, shot, and murdered, you have a responsibility to enact reasonable security measures to make sure that that doesn’t happen to the people that visit your property.

If you’re trespassing on someone else’s property you’ll likely not to have a right to compensation from the property owner

In Florida, whether you’re entitled to compensation from a property owner if you’re shot on the property depends on many factors. One of those factors is whether you were invited on the property, or whether you were trespassing. If you go onto someone else’s property without permission and are injured there, your ability to receive compensation is substantially diminished. In that case there may not be much that a gunshot victim lawyer can do for you. On the other hand, if you’re on the property under invitation, or for a legitimate business purpose (like buying something), then your ability to receive compensation will be much higher.

If you’re actively engaged in violent/illegal conduct at the time of the shooting you’re likely not to have a right to compensation from the property owner

If you were shot because you were trying to rob a store, trying to kill someone, or engaged in a drug trafficking operation that went wrong, you are likely not entitled to compensation. Not only are your legal options limited here, as they should be, but you’d also be hard pressed to find a competent gunshot victim lawyer to represent you in that case. Frankly, any lawyer that would take a case like that should be shot.

If you’re shot on public property, such as a the beach or a public roadway, you’re likely not going to have a right to compensation

The laws governing public property are slightly different from those governing private property. As such, your ability to get compensation if you’re shot on a city street, for example, is very limited. Also, in Florida there is something called sovereign immunity. Sovereign immunity is a law that protects public bodies like cities and counties from liability from certain wrongs. We could go in-depth here as to why if you’re shot on the street you’ll have a hard time recovering, but instead we’ll just leave it at that. Suffice it to say that the law in Florida in that respect makes it almost impossible for a gunshot victim lawyer to help you out.

If your injury is minor you’re likely not going to be compensated

The law compensates you for injuries caused as a result of someone else’s fault. The more severe the injury, the greater the recovery. Bringing a claim for compensation in the civil justice system is a long an expensive process. If your injury is not severe enough, the recovery will not be sufficient to justify the costs and time of litigation. As a result, if you have been shot but your injury is not severe, you should consider yourself lucky and move on with your life.

If you’ve been shot while on someone else’s property you should consider hiring a gunshot victim lawyer. These cases can be difficult to prosecute, and time is of the essence.

In the meantime, if you’d like to find out what a lawsuit for this kind of case is about, feel free to check out our post on the subject.

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If you’ve been the unfortunate victim of a shooting incident in Miami you may have considered the possibility of bringing a lawsuit. While you may be vaguely familiar with how a lawsuit works, you will likely not be familiar with the intricacies of a shooting lawsuit. If you’re considering bringing a shooting lawsuit, you should know that the lawsuit will be broken up into these parts:

Filing the shooting lawsuit

The first step in the lawsuit process will be to file the actual shooting lawsuit. A lawsuit is just a piece of paper that sets out the allegations in the case. In a shooting lawsuit, the paperwork will allege that the defendant failed to meet its standard of care, resulting in your injuries. The specifics of the allegations will depend on what the Defendant knew or should have known at the time, and the ways in which the Defendant failed to act to keep you safe. Once this paper is filed in court and served on the Defendant the lawsuit has officially started.

Discovery

After the shooting lawsuit is filed, the discovery process begins. Discovery is what lawyers call the process used to gather information about the lawsuit that may be in the possession of the parties or other entities. In Florida this process includes requests for production, interrogatories, requests for admissions, and depositions. This process is governed by the Florida Rules of Civil Procedure. It is during this process that the lawyers can information that may otherwise not been available before the shooting lawsuit was filed. Things that are commonly obtained during this process include: surveillance video of the incident, internal policies and procedures of the Defendant, and admissions of fact regarding the incident.

Mediation

Mediation is a step of the process where the parties agree to meet and see if they can resolve the issues in the lawsuit without the need for a trial. A mediator will usually be chosen by all the parties in order to facilitate this process. A mediator is simply a neutral person who is trained in negotiation whose job is to facilitate the negotiations among the parties to see if a resolution can be reached. Mediation is strictly confidential, and nothing that is said during the mediation can be used at trial.

Trial

Trial is the culmination of the shooting lawsuit. If the parties cannot come to an agreement before trial as to who is at fault and how much money should be given to the person bringing the shooting lawsuit, the parties will take the case to trial. Trial in Florida is almost always done before a jury. The jury is a pool of people from the community chosen by the parties to decide issues such as who is at fault, and if the Defendant is at fault how much money should be awarded to the victim of the shooting. Most shooting lawsuits resolve before getting to this point.

Appeal

Regardless of who wins at trial there will usually be an appeal. An appeal is a way for the losing side to take the case up to a higher court and try to get a new trial. Unless someone made a serious mistake during the trial, appeals typically fail. But an appeal can take a year or more to resolve, and in the meantime you will not see any compensation if you won at trial.

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If you’ve been shot in Miami you will find yourself in a roller-coaster of police, medical providers, pain, suffering, and medical bills.  Most people who are shot in Miami know that there will be a criminal investigation, and hopefully the person who shot them will be held accountable in the criminal justice system. Other than that, most people do not know what other remedies are available to them if they are shot in Miami.

Here are some things that you should know if you’re shot in Miami.

The police and prosecution can only help you as far as the criminal justice system goes

The prosecutors and the police will do what they can to help you get justice in the criminal justice system. In laymen terms that means that they will prosecute the person who shot you and try to put them in jail for what they did to you. While that is definitely a helpful measure of justice, that will do nothing to help you regain your mobility, pay your medical bills, and compensate you for the pain and suffering that you went through and may continue to go through. This is because the criminal justice system isn’t set up to make you whole, it is set up to punish the person who injured you. In the best of cases in the criminal system you can expect that the person who shot you will be punished to some extent, and nothing more than that. Your medical bills, your loss of employment, your lack of mobility, and every other aspect of your injury will be something that you would have to deal with, without any help from the police or prosecutors. The system is just not built for that.

If you were shot in Miami on private property, the property owner may have to compensate you for what happened to you

All is not lost, however. If you were shot in Miami while on private property, like for example, a Walmart or McDonald’s, or even a housing complex, the property owner may have to pay you for your losses. This is because Florida law requires that property owners take reasonable measures to keep these kinds of incidents from happening on their property. If you’ve ever been somewhere and you’ve seen security guards, prominently displayed cameras, lighting, etc., you have witnessed the kind of reasonable measures that property owners are expected to take. The most common example is that of a night-club or bar where you have one or more bouncers to ensure the safety of the customers.

Unlike the criminal system, the civil justice system is perfectly equipped to hold the property owner accountable for his/her failure to provide adequate security. Under the civil system you are entitled to receive money for pain and suffering, medical bills, and lost wages. This means that if the property owner’s failure to establish reasonable security measures contributed to you being shot, you should receive money from the property owner to make you whole.

Your shooting was likely preventable and avoidable, if the property owner had done the right thing

Unfortunately, the great majority of shootings in Miami could have been avoided or prevented had the property had the property owner put on reasonable security measures. There are way too many shootings happening on or around the same properties. If these property owners spend some of their business profits to add security guards, cameras, and proper lighting, a lot of these shootings would never take place in their property.

Most property owners do not do the right thing when it comes to protecting their patrons and tenants

Most property owners, however, do not do the right thing when it comes to protecting their patrons and tenants. This is because additional security measures affect their bottom line. If they have to pay a security guard, that is money that has to come out of the business profit margin. More money for security means less money in the pocket of the property owners. It is sad that we live in a world where people and companies are willing to risk people’s life and limb in order to save a couple of bucks, but that is the world we live in. This profits-over-people mentality leads to countless deaths and shooting injuries.  

While the prosecution and police are there to hold the shooter criminally accountable, there is no government body that is set up to help you hold the property owner civilly accountable

If you’ve been shot in Miami, you know that the police and prosecutors are available to help. In fact, those two bodies are designed for the purpose of investigating and prosecuting crimes. But you’d be surprised to learn that there is no government body that is set up to help you hold the property owners accountable if you are shot in Miami. There are no government civil prosecutors or police for that. You’re literally on your own.

But that’s not entirely accurate. While there are no government bodies that are set up to help you get the money that you deserve for your loss, there are civil lawyers who sue on behalf of people who are injured in shootings. We at Cornish Hernandez Gonzalez handle these kinds of injury cases and have recovered millions of dollars for our clients.

If you find yourself in the unfortunate position of being shot while on private property, we can help. Do not hesitate to give us a call or fill out the form.

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One of the lessons I have had to learn as a civil plaintiff’s attorney is how difficult it can be to collect money from defendants … even after they signed a written settlement agreement. My goal in this article is teach you how to properly close a lawsuit (pursuant to a settlement) so that you can easily file a motion and have the judge enforce the settlement.

Jurisdiction

If you want the judge to be able to enforce the judgment, you must close the case in a way where the judge retains jurisdiction. If the Plaintiff dismisses his/her own case with prejudice (as many settlement agreements demand), then the judge forever loses jurisdiction on that case and CANNOT enforce that case’s settlement. MCR Funding v. CMG Funding Corp., 771 So.2d 32 (4th DCA 2000); Dandar v. Church of Scientology Flag Service Organization, 190 So.3d 1100 (2nd DCA 2016). So, DO NOT dismiss your own case with prejudice unless you want to have to file a whole other lawsuit (breach of contract) to enforce your settlement.

Here is the simplest and easiest way to ensure that the judge retains jurisdiction to enforce the settlement:

  1. Have the judge enter an order of dismissal.
  2. Include the following language in the order of dismissal “This Court reserves jurisdiction to enforce the terms of the settlement agreement.” Dandar, 190 So.3d 1100.

Here is a more complicated (and therefore less desirable) way to ensure that the judge retains jurisdiction to enforce the settlement follows:

  1. Bring your settlement agreement to the judge for her to review.
  2. Have the judge enter an order of dismissal.
  3. Write the order of dismissal in a manner that incorporates the settlement agreement into the order. MCR Funding, 771 So.2d 32;

Motion to Enforce Settlement

The motion itself is fairly simple and straightforward. You need to make sure you include the following three (3) items in your request for relief: (1) enforce the settlement agreement, (2) movant interest, and (3) attorney’s fees associated with bringing the motion to enforce (assuming your settlement agreement allows for attorney’s fees to enforce the agreement).

The body of the motion can be pretty short. You must state (1) what you and the defendant agreed to (the part the defendant breached) and (2) that the defendant breached your agreement and how the defendant breached the agreement.

I like to include a Statement of Facts that includes a timeline of the end of the case, the settlement agreement, and the breach. I make sure to include dates that I contacted the defendant to ask them to perform their portion of the contract for two reasons: (1) because professional courtesy demands contacting opposing counsel before getting the court involved (it’s always possible that opposing counsel made a good faith mistake) and (2) because, if it does go to the judge, you look good because your were being courteous and professional.

Illustration

I recently went through a situation where the defendant and my client agreed to settle a case for a certain amount of money. We announced it in open court. The judge entered an order dismissing the case with prejudice. And then we waited for the defendant to pay us. And we waited. And waited.

The settlement agreement called for us (the Plaintiff) to dismiss the case with prejudice once the settlement agreement was executed. However, the judge became impatient and entered the order of dismissal on her own initiative. Luckily for us, her order specifically reserved jurisdiction to enforce the terms of the settlement agreement. So, after an inordinate amount of time and many unreturned emails and phone calls, we emailed the defendant our motion to enforce and let them know we would file it within a week if we did not have checks in hand. And wouldn’t you know it, the check miraculously appeared after three (3) days.

All in all, it took a number of months from the day we announced in open court that we had settled the case to the day that the defendant paid what they agreed to pay.  I had always thought that, as a lawyer, the legal work was the most difficult part of the job. I have since learned that collecting money from defendants can be even more difficult.

In conclusion, if you are going to dismiss your case pursuant to a settlement agreement, have the judge enter an order of dismissal. Make sure that order of dismissal specifically reserves jurisdiction to enforce the settlement agreement. And be courteous to opposing counsel. Chances are you will be able to work the issue out without having to involve the court.

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For most people, being arrested and being forced to navigate the criminal justice system is a scary proposition.  Knowing what to expect can ease this anxiety.  Every criminal case develops in the same way after the prosecution has decided to prosecute the case.  Once the prosecution has levied charges against a person that person has two options: option 1) take the case to trial before a jury of his or her peers, option 2) reach a deal with the prosecution.

I. Trial

If a person chooses trial, the prosecution has to prove the accusations beyond every reasonable doubt to a jury before the person can be convicted.  A good defense attorney can make sure that the jury sees all the evidence in the case that can help the defendant, and in that way increase the chances of an acquittal.

II. Plea

If a person chooses to not take the case to trial, then the person has to make a deal with the prosecution.  In Miami Dade County there are three typical resolutions to a case.  If a person has no previous contacts with the criminal justice system the person will usually qualify for the Pre-trial Intervention program (PTI).  To go into the PTI program in Miami Dade the person is not required to plea guilty to the charges.  Once the person completes the program the prosecution will dismiss the charges against the person.  PTI is the best resolution to a criminal case because it does not carry a risk of conviction or jail time.

The next potential resolution to a criminal case is a probationary sentence.  A probationary sentence can come with a conviction or with a withhold of adjudication, which does not result in a conviction.  While there are many different conditions of probation that a person may be require to abide by, the typical conditions of probation are random drug tests, submission to warrantless searches by a probation officer, reporting requirements, community service hours, and not leaving the county without permission.

The third potential resolution to a criminal case is a straight time sentence.  In this scenario the person pleads guilty to the charge and proceeds to serve a jail or prison sentence.  Upon completion of the jail or prison sentence the person is done with the case and has no additional requirements.

The fourth potential resolution to a criminal case is what is called a split sentence.  In this scenario the person pleads guilty and is sentenced to jail or prison time, to be followed by a probationary sentence.  In this scenario once the person finishes his or her jail sentence the person is under the supervision of a probation officer and has probationary conditions to abide by.

In any event, a person who violates probation is subject to the maximum penalty he or she would have been subjected to if he or she was convicted at trial.  This means that a person who violates probation can be sentenced up to the maximum sentence allowed by law for the charge regardless of how long or how short the original probationary period was.

If you or a loved one is navigating the criminal justice system give us a call.  We would love to help.

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How do you get the money you deserve from an insurance company?

Insurance companies want to make and keep as much money as they possibly can. That means they are happy to take your monthly premiums but are loath to part with any of that money to pay Plaintiffs on insurance claims. They will do everything they can to avoid paying all of what they owe.

Insurance companies pay a fraction of what they owe by betting against the Plaintiff’s lawyer. They bet that the Plaintiff’s lawyer would rather settle the case for a quick buck than fight for the amount that the Plaintiff deserves. So, they offer a fraction of what the case is worth and bet that the lawyer settles it. The insurance company dares the lawyers, “We dare you to walk away from this small settlement off and fight for you client.”

The sad part is, most lawyers nowadays back down from that dare. They accept easy money and leave their clients out in the cold. What’s worse is that the more often lawyers back down, the less the insurance companies are willing to pay. The insurance companies thinks: if I can get $30,000 lawsuits to go away for $2,000, why not make them go away for $1,000.

A few reasons why some lawyers don’t fight for their clients:

  • Many law firms are “mills,” high volume practices that make little bits of money from lots of cases. They don’t practice law, they practice advertise and settle. These law firms sign up clients, beg the insurance company for money, and accept whatever they get. Working up cases goes against their business model. So when they have a client that won’t settle for the crumbs an insurance company offers, the “mill” will usually fire their own client!
  • Filing a lawsuit and litigating a case is difficult and can take up a lot of time. If you file a lawsuit, you have to pay $400 just to file it, you’ll have to write motions, find and speak to witnesses, go to court, and deal with unpleasant people on the other side. Most lawyers would prefer not to go through that headache (forgetting that all of the above is their job description). So they take a discount on justice, their clients suffer, and they call it the price of not having to work.
  • Most lawyers are afraid to go to trial. Once you file a lawsuit, the natural endpoint of that lawsuit is a trial. Trials have high-stakes and require tons of preparation and time without any guarantee that you will win. Plus, to be any good at trial, you have to have a healthy amount of trial experience. The sad truth is that trials are so rare nowadays, that most people who call themselves “trial lawyers” haven’t even tried 10 jury trials. So, when the case starts getting close to trial, most lawyers will try every way they can to get out of trial; typically that means settling for less than the client deserves.

At CHG, we believe it’s time to change the paradigm. A lawyer’s default position shouldn’t be to settle a case, it should be to go to trial. The best way to deal with insurance companies is the same way you deal will bullies: fight them. Dare us to walk away from a crumby settlement offer and fight? Gladly. That’s the only way to ensure that our clients get their full measure of justice.

Put six in the box.

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Recently, a Miami jury awarded $27.7 million in punitive damages to the Pereira family after Judge Schlesinger allowed them to consider whether punitive damages should be awarded in a hit and run accident as a result of a defendant’s failure to stay on scene; a novel concept being that most behavior warranting punitive damages occurs before the wrongful conduct.

It was a Monday night on a one-lane road on Northwest 12th Avenue and Northwest 108th Terrace just before 9:30 p.m. Sixteen year-old Cash Pereira was skateboarding down the street when he was suddenly struck by the defendant, Gabriel Fleuricourt, from his skateboard. While the defendant claims it was an accident, and that he was just trying to pass the car ahead of him, the defendant’s next actions are what contributed to the punitive damages award and young Cash’s death.

The defendant, Mr. Fleuricourt, did not stop. He did not try and help. He did not stay and call the paramedics. Knowing that young Cash did not have anything to stand between his young body and the metal frame of his vehicle, Mr. Fleuricourt still made the wilful and deliberate decision to flee the scene where he had just struck young Cash off his skateboard. He never stopped to render aid to young Cash as he laid on the one-lane road. Stopping to render aid could have made a difference to Cash Pereira’s life. Stopping to render aid could have at least provided young Cash a chance.

In the Daily Business Review published on October 16, 2017, it was reported that prior to allowing the Plaintiff to move forward on punitive damages, Judge Scola, who was substituting for Judge Schlesinger, informed the plaintiff’s attorney that he needed to demonstrate that there was a connection between young Cash dying at the scene, and the defendant’s decision to flee rather than stop and render aid. Judge Scola wanted more support because there is no case law explicitly stating that leaving the scene of an accident warrants punitive damages as a matter of law.

Under Florida law, for punitive damages to be awarded, the plaintiff must prove that defendant “had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage…would result” or “that the defendant’s conduct was so reckless or wanton in care that it constituted a conscious disregard of indifference to life [or] safety.” In the plaintiff attorney’s second motion for punitive damages, he argued that a lack of timely medical treatment was the nexus between the defendant fleeing the scene and Cash’s death. This was corroborated by one of the detectives, who told the court that there were approximately ten minutes that passed between the crash and the arrival of the first responders. The detective stated that those minutes are critical and possibly could have saved Cash’s life. Judge Schlesinger granted the second motion for punitive damages, and at trial, the jurors awarded $37 million dollars to the Pereira family, which included $27.7 million in punitive damages.

Take away

When there is no case law on whether punitive damages are permitted as a matter of law, as an advocate, you cannot back down from arguing why you believe your specific case warrants punitive damages. It requires more work. It requires more analysis, but in the end, your ability to think outside the box and think through the facts of your case is absolutely necessary to help your client, and the greater community at large. While compensatory damages are meant to pay your client for what he or she specifically suffered, punitive damages are meant to tell your surrounding community that the conduct in question, like leaving the scene of an accident, will not be tolerated.

Tip your cap to attorney Justin Shapiro for his great work for the family of young Cash Pereira and for the great work that he has done for plaintiff’s all over Miami and Florida. As s result of his passionate and zealous advocacy, plaintiff’s attorneys around the state, and possibly the country, can use Judge Schlesinger’s order as persuasive authority when advocating for punitive damages in hit-and-run accidents.

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When you are injured through the negligence or wrongdoing of another, it can be a pretty traumatic event. Undoubtedly, your injury involved pain and suffering, mental anguish, and other terrible inconveniences. In Florida, if you or a loved one has been injured in a motor vehicle accident, a recovery for pain, suffering, mental anguish, and inconvenience may be obtained. However, under Florida law, in the great majority of motor vehicle accident cases, in order to make a recovery for pain and suffering, the permanent injury threshold must be satisfied.

Specifically, Florida Statutes § 627.737, provides that in any tort action brought against a person legally responsible for his or her actions, a plaintiff may recover damages in tort for pain, suffering, mental anguish, and inconvenience because of bodily injury … arising out of the ownership, maintenance, operation, or use of such motor vehicle only in the event that the injury or disease consists in whole or in part of:

  • Significant and permanent loss of an important bodily function;
  • Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement;
  • Significant and permanent scarring or disfigurement;
  • Death

Accordingly, in a great number of motor vehicle accidents, if a doctor or medical expert does not make a finding that your injury consists in whole or in part of one of the 4 (four) above-mentioned elements, then it is likely you cannot recover damages in tort for pain and suffering.

However, in the law, because everything always seems to “depend” on something else, it should be noted that you do not always need to have a permanent injury to recover pain, suffering, mental anguish, and inconvenience. Knowing as much could make a world of difference for your case.

In Utvich v Felizola, 742 So.2d847 (Fla 3d DCA 1999), a taxi driver (Felizola) was injured after being rear-ended by another car (Utvich). The tax-driver sued the other car for his injuries, and at trial, the jury awarded the taxi-driver damages for past lost wages, past medical expenses, past pain and suffering, and loss of future earning capacity. The attorneys for the other car argued that the taxi-driver could not recover damages for pain and suffering because the tax-driver did not prove a permanent injury.

The court, however, held that “taxis are definitionally excluded from the no-fault law,” citing Florida Statutes §627.733(1). The court went on to say that in Lasky v. State Farm Ins. Co., 296 So. 2d 9, 21-22 (Fla. 1974), taxis, motorcycles, buses, and commercial vehicles do not come within the provisions of the no-fault act. As such, such vehicles do not fall within the scope of the statutes requiring claimants to prove permanency.

For most involved in a motor vehicle accident, this caveat might not mean much. But when you have been injured in an accident involving one of these types of vehicles, knowing you may be entitled to pain and suffering damages regardless of proving permanency could go a long way for you and your family.

If you or a loved one has been injured through the fault of another we know that this can be a very difficult time.  You do not have to deal with it alone, we would love to help.

Give us a call or fill out the contact form for a free consultation.

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In a Florida personal injury case a person may be entitled to receive money meant to compensate many of the negative impacts that the injury caused the person in his or her every day life.  The money is meant to be a way for the wrongdoer to put the injured person back in the position that he or she was in at the time of the injury, also known as making the injured person whole. But sometimes, when the wrongdoers’ act is specially outrageous, the injured person is entitled to damages meant to punish the wrongdoer.

Here is a brief explanation of the many possible things you may be entitled to recover money for in Florida if you have been injured.

Economic Damages

Economic damages are those that can be quantified in a dollar value and are easily measured.  These are things like past and future medical expenses, loss of wages, loss of earning capacity, etc. This category of damages is meant to pay you for money that you spent (or are going to spend) as a result of the injury, and also money that you would have earned had you not been injured.

Non-Economic Damages

Non-economic damages are damages that cannot be measured in dollar amounts at the outset.  They are the kind of thing about which reasonable minds may differ and for which there is no readily available market for in everyday life.  These include pain and suffering, mental anguish, loss of enjoyment of life. In Florida the jury is free to award as much or as little as it deems appropriate for non-economic damages.

Punitive Damages

The purpose of personal injury law is not to punish the wrongdoer, but rather to make the injured person whole.  Under the law, however, there are times when the wrongdoer’s conduct is so outrageous that the law allows for money awards that are meant not to make the injured party whole, but rather to punish the wrongdoer and also send a message to those who are in the same position as the wrongdoer that this kind of conduct will not be tolerated.

There are limited ways to recover punitive damages in Florida and a specific set of rules that must be followed in order to be able to recover these damages.  If you’d like to know more about punitive damages see our punitive damages article.

If you or a loved one has been injured through the fault of another we know that this can be a very difficult time.  You do not have to deal with it alone, we would love to help.

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