71 factors affect can affect personal injury claims, settlements and lawsuits in 2021.
Technically there are more than 71 factors, but who’s counting.
After you’ve handled several hundred personal injury claims, these factors become obvious. They apply in claims for car accidents, slip and falls and much more.
To get maximum value for your accident case, you need to understand every factor. Otherwise, you may leave big money on the table. And that’s just what the insurance companies want you to do.
So today, I wanted to share these factors with you so that you can learn what the insurance companies don’t want you to know.
So here it goes:
1. Was the Defendant Careless?
To have a personal injury case, someone else must have been careless.
On the other hand, if someone else was not careless, you do not have a personal injury case. These is true no matter how big your injury is.
As a general rule, it’s easier to prove that someone else was careless in a car accident case than in other types of cases.
Because the police officer’s crash report generally does a good job of describing how the accident happened.
And it’s great that many reports have diagrams that show how the accident occurred. Take a look at the one below:
In the diagram above, Ryan was in vehicle 2. He was heading straight down the road. At the same time, Howard was driving his car in the opposite direction. Howard made a left turn directly into Ryan’s car.
Take a look below:
Ryan wound up in the hospital.
He broke his leg and had surgery to fix it.
However, for purposes of liability, the officer got it right. He cited Howard for failing to yield the right of way. In addition, he created the helpful drawing above. In Ryan’s case, proving liability was easy.
That said, I prepare each case like it is going to trial.
Because some insurance companies are not reasonable.
Thus, I sent a request to both auto insurance companies to preserve the vehicles.
Expect the Car Insurance Company to Deny Liability
I was ready to hire an expert to download each car’s event data recorder (EDR).
The car’s EDR report shows the speed (and braking) just before and during the accident. It also shows if the driver and passengers were wearing their seatbelts. And it contains lots of other useful information.
Take a look at a sample EDR report:
Unfortunately, some car insurance companies (like State Farm and CNA) have delayed payment in car accident cases where I believed that their insured driver was 100% at fault.
So you need to be prepared for combat.
Fortunately, companies (like Collision Data) charge a $500 flat fee to download the EDR in most vehicles.
But note, the for some vehicles, like a LandRover or Jaguar, you may have to send the data to France to be read. That gets more expensive.
If you have an attorney, he or she will pay for the report’s cost. Once your lawyer settles your personal injury case, he or she gets this cost paid back from your settlement.
We settled Ryan’s personal injury lawsuit for $300,000. I did not download the EDR from either car.
This saved Ryan $1,000 (or more).
Here are the settlement checks:
After my attorney’s fees, costs and paying his medical bills and workers comp lien, Ryan got $187,371 in his pocket.
What would have happened if Ryan would had been in car #1 and not in car #2?
His case would have been worthless. This is because Ryan would have been 100% at fault for causing the accident.
As you can see, the ability to prove negligence (fault) is a huge factor in a personal injury case.
Example Showing that You Don’t Have a Case if No One Else Is At Fault
Now I’ll show you an example that shows that you don’t have case if another company did nothing wrong.
Let’s say that you slip (or trip) and fall in a supermarket. As a result, you break your hip and have surgery.
However, you have no idea why you fell. Moreover, you don’t think that the store did anything wrong that caused you to fall. In this instance, you do not have a personal injury case.
This is because the store was not careless. In this instance, even if you have a big injury (like a hip fracture and surgery), your case is worthless. For this reason, I turn down many big injury cases every year.
On the other hand, if you think that the property owner (or operator) did something wrong, you may have a great case.
Therefore, it is important to investigate and find out what someone else did wrong that caused your injury.
Look for Past Complaints to Help Increase Your Personal Injury Settlement
Let’s say that you slip and fall in a hotel bathtub. In order to get compensation for your injuries, the hotel must be careless. You (or your lawyer) should look online to see if other guests complained of your injury before you slipped and fell.
This would put the hotel on notice that it may have had a hazard before your accident. I was able to do this in a case.
Let me explain:
Angela slipped and fell in a bathtub in a resort in Orlando, Florida. She slipped in this shower:
As a result of her fall, she broke her arm.
As expected, the hotel’s insurance company (Philadelphia Insurance Company) told me that the hotel did nothing wrong. Insurance companies for hotels love to say that.
However, I did not simply take what they said as the truth. Insurance companies are often wrong.
So what did I do to build Angela’s case?
I looked at the resort’s reviews online. This took several hours.
I found a gold nugget. Specifically, I discovered that a few other guests had complained that the hotel room bathrooms were slippery.
In August 2019, I settled Angela’s slip and fall case for $250,000!
Here is the personal injury settlement check:
After lawyers fees, costs and paying the health insurance company back, Angela got $157,353.
Take a look:
The insurance company (for the party who you are suing) requires its lawyer to send them an overview on liability.
Let’s look at what the Hartford Insurance Company requires its attorneys to send it within 90 days of the lawyer getting the case.
2. Your Particular Injury Affects Your Personal Injury Settlement
The biggest factor that determines the value of a case is your injury. According to the Insurance Research Council, the average auto insurance bodily injury settlement is less than $18,417.
Certain injuries are worth more than others. Basically, an insurance company will assign more money to your pain and suffering damages for certain injuries.
Most Whiplash Cases Settle for Under $25K
Cases where the injured person only has whiplash (neck pain) often result in the smallest settlements. In fact, most cases where the only injury is whiplash settle for under $25,000.
In the photo below, my client is in a neck brace.
We settled his whiplash personal injury case for $15,000.
On the other hand, broken bones usually lead to bigger settlements.
Let me give you an example.
In 2020, Sam (not real name) was riding his bike in South Florida. At the same time, Joe (not real name) was in his car heading north. Joe was turning to go Eastbound.
While Sam rode his bike westbound in the crosswalk crossing, Joe accidentally hit him with his car.
You can see a crash diagram below:
As a result of the impact, Sam broke his ankle.
In the image below, you can see a plate and screws that a surgeon put into Sam’s ankle:
Shortly after his accident, Sam hired me as his injury lawyer.
GEICO made us a lowball offer of just $100,000. Their offer was even 33% of the full value of Sam’s pain and suffering.
I know this because I know that two surgeries to a trimalleolar ankle fracture has a pure exposure value of $300,000 to $350,000 for pain and suffering.
That assumes that you recover well and have major pain reduction. Just look at past Florida jury verdicts for that particular injury.
And that didn’t even include the medical bills that we add to the pure exposure value.
So we rejected GEICO’s $100,000 offer.
We built up Sam’s personal injury case. Eventually, we settled with GEICO for $350,000.
However, if my client didn’t break his ankle and have two surgeries, we would not have gotten $350,000. In other words, if Sam had a smaller injury we would have settled for much less money.
Let me give you another example showing that broken bones may be worth a lot more than just having pain.
In the photo below, you can see my client’s broken arm.
As a general rule, insurance companies pay much more for a broken arm than neck or pain. And that rule held true in this case. The insurance company paid $250,000 for my client’s broken arm.
Of course, there are exceptions to these rules. And we’ll get to those in a moment.
Also, what could have happened does not add value to your case. Often times, people injured in accidents say:
I could have died.
Yes, you could of died. But you did not. Therefore, do not expect an insurance to pay you any money for what could of happened.
75% Chance That You’ll Need Surgery to Get a Payout of $100K (or more)
I looked at my car accident settlements that were for $100,000 or more. Here is what I found:
In 75% of them, my client had surgery after the accident. In 25% of them, my client did not have surgery. He or she either had a brain injury, or a broken bone (without surgery) and a hospital stay of several days.
My conclusion is that there is about a 75% chance that you’ll need surgery to get more than a $100,000 settlement in a car accident injury case.
Every case should be looked at based on its individual facts.
59% Chance You Need a Fracture to Get $50K or More Payout
You’ll likely need a broken bone in order to get a settlement of $50,000 or more. If you look at my biggest 32 car accident payouts, you’ll see that 59% of my clients who got a payout of $50,000 (or more) had a broken bone.
Having a broken bone is not the only way to get a settlement for $50,000 or more. If you don’t have a broken bone, your best chance of getting a payout of $50,000 or more is if you one (or more) of the following:
- a brain injury
- two tears to different ligaments or tendons.
- a herniated disc and a drunk driver hit you
- a herniated disc and several people are competing for a limited policy limit;
- a serious eye injury
- a herniated disc and radiofrequency ablation (RFA) procedure
Send the Insurance Company Past Verdicts for Your Injury
How do insurance companies in a personal injury case calculate pain and suffering values?
Historically, they estimated pain and suffering values for a particular injury by looking at past personal injury cases that resulted in a verdict.
However, the recent trend has been for insurers use past settlements instead of verdicts. That said, insurance companies still look at past jury verdicts. So do defense attorneys.
If you are making a personal injury, you may want to subscribe to a service that gives you past jury verdicts for particular injuries. Examples of this are Westlaw, Lexis Nexis, and VerdictSearch.
You can use these services to try to itemize the pain and suffering component. However, these services are not free or cheap.
They often start at $395 or so if you want a day pass. The price gets less expensive if you sign a year contract.
When using a jury verdict service, look for past jury verdicts in the past five years for your same injury. Ideally, you should be looking for verdicts in the same county where the accident occurred.
If you can’t find jury verdicts for the county where the accident happened, send them verdicts from nearby counties.
Send good verdicts to the adjuster immediately so that they can set the proper personal injury settlement reserve. Good verdicts are those that have a big pain and suffering award.
The Adjuster to Needs Permission to Settle
If you send the insurance company big verdicts, it may speed up settlement of your case.
Past verdicts with a high pain and suffering component may help the adjuster justify a higher pain and suffering payout. Often, adjusters need settlement authority from their supervisor.
If you send the adjuster big verdicts, it can increase the full value of the case.
Do not send the adjuster any verdicts that you find on an attorney’s website. You are wasting time doing that.
Because verdicts on lawyers’ websites usually just tell one side of the story. The insurance company may have a completely different version of the settlement.
In addition, attorneys generally do not have the pain and suffering damages itemized on their websites. (I try to include these.)
3. Medical bills have a big effect on a personal injury settlement or claim
Medical bills can have a big effect on a settlement. In smaller personal injury cases, an insurance company may pay you more for your medical expenses than for pain and suffering.
However, in bigger personal injury cases, your pain and suffering damages will usually be larger than your medical bills.
In some states, at fault party’s insurance company has to pay you for the total medical billed charges. This often leads to bigger settlements. This is a great law for injured people.
On the other hand, other states only allow you to recover compensation for your out of pocket medical bills (and amounts paid by your health insurance company). Florida is one state that follows this approach.
In a car accident, state laws will determine who pays your medical bills. For example, Florida is one of many No Fault states with mandatory personal injury protection (PIP).
Since the out of pocket medical bills will likely be smaller, so will the total settlement.
Other factors that determine the personal injury settlement are:
- The amount of your out of pocket bills.
- Whether any of the 11 potential defendants get a credit of up to $10,000 for having PIP. This would lower the settlement value.
- Whether the jury gets to hear the total billed charges (or just the paid amount).
4. Were you at fault?
If someone’s negligence (carelessness) caused your injuries, your damages will be reduced by the percentage of your fault (comparative negligence). In Florida, if the injured person is more than 51 percent at fault he or she can still recover damages.
Other than a rear-end collision, in many accidents the injured person is also at fault. This is especially true in slip and fall, or trip and fall accidents.
In slip and fall claims, some lawyers, as a starting point, assume that the victim is 50% at fault. They believe that you’re at fault for not looking where you were walking before you fell. But remember the 50% is just a starting point.
Let me give you example of a case where an insurance company told me that were putting 50% fault on my client for her fall.
Example where insurance company put 50% fault on someone who fell
Dawn went to a wildlife safari park in Osceola County, Florida. During broad daylight, she claimed that she rolled her ankle on a broken walkway, and fell.
You can see a photo that shows the general area of the cracked pavement:
Dawn went to the hospital, where x-rays showed that she had a broken ankle. Specifically, she had a non-displaced right lateral malleolus fracture. She was at the hospital for a few hours.
She wanted to hire an injury lawyer. She looked on Youtube for an injury attorney who had good outcomes. She watched some of my videos and called me for a free consultation to see if I could represent her.
I personally spoke with her and she hired me.
I asked her to lawfully take a photo that showed the measurement of the depth and width of the crack in the pavement that claimed caused her ankle to roll. I told her to use measuring tape. If she didn’t have measuring tape, she could use a deck of cards or a stack of pennies.
She had this photo taken showed a penny in one of the cracks.
In the following months, she received treatment for her broken ankle from an orthopedic doctor.
You can see Dawn with a walking boot on her foot:
I sent this photo to the insurance adjuster.
Fortunately, Dawn did not need surgery. Her ankle made a very good recovery.
National Casualty Company insured the owner of the premises. K&K Insurance Group handled the claim for National Casualty Company. National Casualty Company is part of Scottsdale Insurance Company. Scottsdale is part of Nationwide Insurance Company.
K & K Insurance Group argued that Dawn was partially at fault for not avoiding the walkway since they said it was open and obvious. Their first offer to me was $5,000 to settle Dawn’s injury claim.
Here is the email where they partially blamed Dawn for falling:
Through aggressive negotiation, I settled Dawn’s personal injury case for $30,000. The insurance company may have paid much more than $30,000 if her fall would have happened at night and the area was not lit well. This is because it may have been hard for Dawn to see the cracked pavement at night.
In some fall down cases, you might have little fault
On the other hand, sometimes the injured person has no fault in a fall down case. An example of this may be if you slipped and fell on water that is on white tile at a condominium, store, supermarket or hotel, etc. Perhaps you were unable to see the water (because it blended in with the white tile) before the fall.
On rare occasion, in a Florida slip and fall lawsuit, the defense will admit fault. If the defense admits fault and the only issues to be tried in front of a jury are causation and damages. For example, in 2011 Carnival cruise lines admitted liability in a lawsuit. A passenger slipped and fell on the pool deck and fractured her knee cap (patella).
She claimed that the flooring was hard and slippery as ice. The passenger also claimed that Carnival had known about numerous prior accidents on the same flooring surface on that cruise ship and its other ships.
She underwent six surgeries, and may need future surgery. That case led to a $2.998 Million Final Judgment. That was not my case but it shows the sometimes, albeit rarely, the defendant will not place any blame on the claimant.
Defendants rarely admit liability in a slip and fall case. In a small percentage of cases, after you file a personal injury lawsuit and gather solid evidence they defendant may admit liability. They make you work hard to get a fair payout during your personal injury lawsuit. In some case, they may make you go trial.
(Learn more about Carnival Cruise slip and fall injury claims.)
Children Under Age Six No Fault
In Swindell v. Hellkamp, 242 So.2d 708 (Fla. 1970), the Florida supreme court held as a matter of law that a child under the age of six, who ran into the path of an automobile and was injured, could not be contributorily negligent because a child does not have the capacity to exercise “reasonable care” so as to hold the child responsible for his or her own acts.
This applies to a claim of comparative negligence as well. See Lindenfield v. Dorazio, 606 So.2d 1255, 1257-58 (Fla. 4th DCA 1992). However, a parent or guardian may be negligent for failing to supervise.
However, the child’s injury claim value may be reduced by his or her parent’s negligence for failing to supervise the child.
5. Does the liable party have money to pay?
Even if the defendant is negligent, you may not be able to recover damages (e.g. medical bills, lost wages, pain, suffering, mental anguish, loss of enjoyment of life, etc.) if there is no payment source from which to collect.
The most common sources to collect from are:
- first party coverage including, but not limited to, uninsured motorist (UM) coverage, PIP and Medical Payments (MedPay) coverage in an auto policy.
- potential defendants in an auto accident case.
- liability insurance or a self-insured company.
In Florida, most driver are not required to carry bodily injury liability insurance. If you are in an auto accident, the car that hit you may not have any bodily injury (BI) insurance.
One exception is that tractor trailers (18 wheelers) need to carry at least $750,000 in liability coverage.
Even if you are badly injured by an 18 wheeler tractor-trailer, it is possible that the owner of the 18 wheeler cancelled his insurance before the accident or did not pay his bill.
Do not expect to get much from someone who is uninsured. The saying goes, “You cannot get blood from a rock.”
There are also times when an underinsured driver causes your accident and injury. If you are badly injured, you may end up settling for a fraction of the value of your case.
Let me give you an example.
$37,500 Car Accident Payout for Broken Wrist Due to Limited Insurance
In one case, another made a left turn into a car that my client was a passenger in. The accident happened in Miami, Florida.
As a result of the impact, my client broke his wrist. At the hospital, a doctor put a plate and screws in his wrist.
The at fault driver only had a $10,000 insurance policy. The driver of the car that my client was in only had $25,000 in bodily injury coverage. I was able to get the other driver to pay $2,500 out of his own pocket. That brought the entire settlement to $37,500.
I’ve settled other wrist surgery cases for $135,000 through $210,000.
Here, because there was limited insurance coverage, we had to take a reduced settlement.
6. The county where the accident happened affects your personal injury settlement.
Counties that consist of big cities are known for higher jury verdict awards than counties that consist of smaller cities or towns. These big cities are usually more likely to vote Democrat in elections.
Every Florida personal injury attorney would prefer going to trial in a personal injury case in Hillsborough County instead of Lee or Collier County.
Verdicts are simply higher in Hillsborough County.
Counties in northern Florida (generally heavy Republican areas) such as Holmes County are known for having smaller jury verdicts, and thus smaller personal injury settlements. But at the end of the day, the value of your case largely depends upon the facts of your case.
If you were injured on a cruise ship and the ship touched an American port, there is a great chance that your lawsuit with need to be filed in Miami, regardless of where you sailed from.
7. Whether You Are Entitled to Pain and Suffering
Even if someone was careless and caused your injury, you may not automatically be entitled to money for pain and suffering. This is because some states have laws that require your injury to meet a certain threshold in order to qualify for pain and suffering compensation.
These laws apply in some car accident cases. For example, in most Florida car accident cases, you need to meet the tort threshold in order to be entitled to money for pain and suffering. Basically, you’ll need a permanent injury in order to get even one penny for pain and suffering.
Not every Florida vehicular accident case requires that you meet the tort threshold, so you must understand the law cold.
Do not expect the adjuster to explain the law to you. An adjusters are not your friend!
Most, if not all, Florida uninsured motorist insurance policies say that a claimant can’t recover pain and suffering compensation unless the claimant has a threshold injury. This law applies even if the Floridian was hurt in a crash in another state that doesn’t require a permanent injury.
8. Time Passing Without You Getting Medical Treatment Affects Your Personal Injury Claim
Gaps in medical treatment may decrease the value of any personal injury claim. The claims adjuster will argue that you delayed getting medical treatment because your pain was not bad.
In a Florida auto accident case, PIP coverage does not pay medical bills if the claimant waited more than fourteen (14) days to get treated.
9. How Minor or Severe Was the Impact?
If you are trying to prove that someone’s negligence caused your injury, the adjuster will be looking at the severity of the impact. This is true whether you were in a car accident, truck accident, slip or trip and fall, or other type of accident.
A claims adjuster may argue that it is questionable whether an item that is not “heavy,” could have injured you if you were struck by it. You should never bring this up to the claims adjuster, or agree with their stance.
The above picture is of an 18 wheeler truck that crashed into the back of an 18 wheeler that my client was driving. My client claimed that his shoulder surgery was caused by the accident. I settled the case for $210,000 before a lawsuit was filed. If the damage to both trucks was minor, the liability insurer would have argued that my client’s shoulder surgery was unrelated to the accident.
The liability insurer’s argument is stronger in cases where it is possible that your injury is not acute, such as shoulder or rotator cuff tear, herniated disc, ankle tear, bulging disc, neck injury, back injury, carpal tunnel, a meniscus tear.
The claims adjuster has a weaker argument if you have a bone fracture (broken bone) as it is generally the result of trauma.
Some situations where a liability insurer may argue that the object that struck you wasn’t heavy enough to cause injuries are if you are struck by a:
– Disco ball at a nightclub that comes loose and falls on you. I worked on a case like this many years ago.
– Object that falls on you or is pushed into you by an employee, such as a vacuum, a carpet cleaning service wand, or other device at a hotel, store or somewhere else.
I settled a case for $25,000 where my client was struck by a carpet cleaning wand. A carpet cleaning company employee used it to steam clean my client’s carpet.
One of the adjuster’s arguments was that it is possible that the cleaning wand wasn’t heavy. The said it could not have caused a tear in my client’s ankle.
If you are involved in a minor impact car accident where you have soft tissue injuries, be prepared to confront the insurance company defense of “Your injuries couldn’t have been caused by this minor accident.”
10. Did you take an ambulance to the hospital?
If an ambulance takes you to the hospital, your case is usually worth more. This is because jurors often award more money for pain and suffering if you take an ambulance to the hospital.
In addition, your medical bills will be higher.
Just look at Uber’s accident claim form:
One of the first questions Uber asks is:
Was anyone transported by ambulance?
11. Was 911 Called?
If 911 was called after your accident or incident, this may affect the settlement value of your claim.
I’ve had a cases where the other driver called 911 and admits fault. For example, the other driver may say “I made a mistake. I hit a pedestrian or someone on a bike.”
You can use their statement against them at trial and during the case.
12. Pre-existing injuries may lead to a smaller personal injury settlement.
Insurance companies often claim that your injuries existed before the accident.
Insurance companies will have access to all of your past claims. When you make a new claim, the insurance company will run an ISO search on your past claims.
According to ISO, a Verisk analytics company, this is what an ISO claim search looks like:
Here is the bottom half of the page:
As you can see the claim search identified 3 slip and fall claims for the same person. So don’t try to hide any past claims from an insurance company.
The insurance company will also want you to sign a medical authorization. They want to dig through your past medical records and see if you complained of pain before the accident.
They often do this in personal injury claims where you are claiming that the accident caused your neck or back pain, or a tear. But the truth is they just don’t do it in cases with those injuries. They look for pre-existing injuries in every case.
It is your burden to prove that the accident caused your injury. If you can’t meet this burden, you are not entitled to money for your case.
Let’s take a look at a personal injury claim where the claims company argued that my client’s injuries were pre-existing.
$15K Settlement (Despite Pre-existing injuries)
I represented a guest who claimed that she slipped and fell on water at a Marriott hotel in Miami, Florida. After her fall, her friend took a photo of water on the floor.
Check out the photo:
The photo was good. However, it would have been perfect if her friend took it in landscape view. Landscape view is when you hold the camera sideways.
My client (Chiquetta) claimed that the accident caused her back and neck pain.
The hotel claimed that my client’s neck injury was old (chronic). In other words, they claimed that she had neck pain before the accident.
Take a look at the Marriott’s email to me below:
We settled her case for $15,000.
Don’t give up if you have pre-existing injuries. Sure, you may have to accept less money to settle than if you didn’t have pre-existing injuries.
However, you may still have a good case.
Here’s an example:
Frank had Achilles tendon surgery, and he was using crutches to get around. While at a supermarket in Miami, he claimed that he slipped and fell on water.
After the fall, he had two skin grafts to repair the incision that busted open in his fall.
The insurance company and defense attorney argued that these surgeries were due to complications from an achilles tendon surgery that he had before he fell.
During his lawsuit, I settled his personal injury claim for $300,000.
13. Is your injury permanent?
Find out what a qualifies as a “permanent injury” is in a car accident case.
Learn why having a permanent injury may affect your personal injury settlement.
14. Your doctors
Your doctor is a huge part of your personal injury claim.
If your doctor says that your injury is not related to your accident, then you cannot get damages (e.g. medical bills, lost wages, pain and suffering, mental anguish, loss of enjoyment of life, etc.) from the party whose carelessness caused your injury.
As mentioned in #11, if a doctor says that you do not have a permanent injury this can hurt your case.
That is why it is so important to know the reputation (as it applies to accident cases) of the doctor that you are treating with.
The best way to know whether the doctor can kill your personal injury case is to speak with a lawyer who knows the doctor’s reputation.
Check out this article (with links to maps that have contact information) about doctors in Florida who want to help accident victims.
15. Insurance company
Some insurance companies pay better than others. For example, Progressive, Farmers, United Auto, and Allstate are all terrible. This means that you are more likely to need to file a personal injury lawsuit against these companies.
On the other hand, Hartford, Nationwide and USAA are all above average insurance companies. You are less likely to need to file a personal injury lawsuit against these companies.
But don’t get too excited.
Plenty of people have had to file personal injury lawsuits against The Hartford, Nationwide and USAA. After all, they are still insurance companies. And insurance companies care more about making a profit than anything else.
16. Witnesses Affect Your Personal Injury Claim
Regardless of the type of injury case that you have, a witness can make or break a case. For example, I represented a woman who slipped and fell on water in the lobby/cafeteria area in a Hyatt Hotel in Doral, Miami-Dade County, Florida.
She tore her quadriceps (thigh muscle). Zurich Insurance Group insured the Doral hotel. I sent the Zurich claim adjuster my client’s medical bills and records.
The argument was that the hotel was negligent because the floor had been mopped before my client’s fall.
I also said that the employee failed to put up a warning sign.
The adjuster offered nothing for my client’s personal injury claim. He agreed to pay $5,000 under the medical payments (MedPay) coverage in the hotel’s insurance policy.
My client told me that her co-worker/friend, Gina, could testify that she saw my client lying on the floor in pain after her alleged fall.
Gina, also said that before the fall she (Gina) saw a hotel employee mop the area, but failed to place a warning sign in the area.
I drafted an affidavit and sent it to the witness. Once I gave the affidavit to the insurance company, they eventually increased their offer to $23,000.
Prior to them receiving the affidavit, they wouldn’t offer a penny.
Tip: Get an affidavit from every witness as soon as possible. As time passes after an accident and emotions simmer down, some witnesses become less likely to sign an affidavit.
Witnesses’ memories fade, they may die or move away and become difficult to contact.
17. Were you hospitalized?
All things equal, if someone’s negligence caused an accident and the injured person goes to the hospital, the full value of the case is higher.
This is because a jury is more likely to believe that the person’s injuries are serious. And insurance companies know this. Even the rideshare company Uber knows this.
For this reason, Uber’s accident report form for co-riders or third-party witnesses asks if anyone was hospitalized:
You may be able to recover many types of damages in a personal injury claim. The most common damages are:
- Diminished Value of Your Vehicle
- Rental Car
- Past Lost Income
- Future lost income reduced to present value
- Past medical expenses
- Future medical expenses
- Replacement value of lost personal property (e.g. damage to your car, broken glasses, watch, etc.)
- Funeral expenses
- Reimbursement for mileage to and from medical appointments
- Past Pain and suffering
- Future Pain and Suffering
- Scarring and disfigurement
- Mental anguish
- Loss of capacity for the enjoyment of life
- Punitive Damages (in rare cases like drunk driving)
Sometimes the types of recoverable damages depend on the type of case. Often times, an injured person does not know how to properly document his or her damages. And if you don’t present your damages to the insurance company, don’t expect to get paid for them.
Certain damages are recoverable in a wrongful death case. These may be different than in a car accident case or slip and fall case.
19. Pictures or Video Can Affect a Personal Injury Settlement
Pictures can increase the value of your personal injury claim. Jurors (and insurance adjusters) love to see pictures. Helpful pictures should be sent to the adjuster as soon as possible after the accident.
Pictures which show the following can help an injured person’s accident case:
- Moderate to severe damage to vehicles involved
- Paramedics and/or police at the accident scene
- The dangerous condition in slip, trip and fall that caused your injury
- Poor lighting at the time of the accident
- Hardware outside of your body such as an external fixator
- Scarring or disfigurement
- The injured person in a hospital bed with an oxygen tubes, scrapes, a cast, an IV line and machines next to you
Generally speaking, the more that a picture makes you cringe, the more it increases the full value of a case. On the flip side, pictures that can hurt the value of a personal injury case are:
- No damage or minor damage to the vehicles involved
- Excellent lighting if you are claiming that you could not see the dangerous condition before you fell
- Excellent lighting if you claim that you could not see the person or vehicle who you struck
There are countless other examples of how pictures can either hurt or destroy your case. Find out the two biggest reasons to take pictures.
20. Do you wear glasses, contact lenses, or hearing aids?
Your eyesight and hearing are at issue in every injury case. If an adjuster believes that you were negligent in failing to wear your glasses, contact lenses or hearing aids and this caused your accident, then he may discount the value of your case.
An adjuster may want to know who prescribed them, when were they prescribed, when were your eyes or ears last examined and the name and address of the examiner.
21. Were you suffering from physical infirmity, disability, or sickness at the time of the incident?
The liability insurer will want to know whether you were suffering from physical infirmity, disability, or sickness at the time of the incident. I settled a personal injury lawsuit for $300,000 for a man who was already on crutches when he slipped and fell. This happened at a supermarket.
The defense attorney hired a physical therapist who argued that my client’s improper use of his crutches was the cause of his fall. The supermarket tried to use my client’s disability against him. We still settled his personal injury lawsuit for $300,000.
In a slip and fall case, you should expect the adjuster to want to know whether your disability caused your fall. They may look through your past and current medical records to see whether they find any mention of past falls or difficulty walking.
You may still have a personal injury claim even if you had a disability at the time of the fall. I settled a slip and fall claim for over $190,000 for a client who was walking in a boot at the time of the fall.
22. Taxes on any personal injury lawsuit or claim
You need to consider whether you will have to pay taxes on your settlement. In most accident cases, you don’t have to pay taxes on the settlement.
Here is what the IRS says:
The main event that may result in you owing taxes is if the insurance company requires your personal injury settlement (or lawsuit) to be confidential.
If possible, you should not agree to a confidential settlement during your personal injury lawsuit or claim.
For example, lets say that you have selected a mediator to mediate your case. You should ask him or her before the mediation to make sure that his or her pre-printed standard mediation settlement agreement does not say that the settlement is confidential.
You don’t want to be arguing this with the mediator during the mediation. Cases are already stressful enough. I’ve argued with a mediator about this before during a personal injury lawsuit. It was not fun.
23. How accurately do your medical records state your injuries, limitations and other issues?
Some clients tell me that they have limitations in their daily activities but the medical records state that there are no limitations. For example, I have had clients tell me that they have difficulty showering but their medical records say “No difficulty washing.”
The best way to ensure that your medical records accurately reflect your limitations or complaints is to call the medical provider (often a doctor) before your next visit and ask them to please have the medical record ready for you.
You can review the medical record while you are waiting and point out any errors to the medical provider. The medical provider may also document his or her records more clearly once they realize that you are reviewing your records for accuracy.
24. Gender (in Cases of Scarring or Disfigurement)
There are many other factors that affect the value of a scar in a personal injury case. In Florida, if a driver’s carelessness (in certain types of car or truck accidents) caused your injury, you must show that your scarring or disfigurement is permanent and significant in order to be entitled to damages for pain and suffering.
If someone’s negligence caused your scarring in a Florida non-motor vehicle case such as slip and fall, and many other types of cases, you do not need permanent and significant scarring in order to recover for damages for pain, suffering, mental anguish, etc.
25. Your Health Insurance May Affect Your Personal Injury Claim
If you don’t have health insurance, the full value of an injury claim tends to be larger because the injured person’s out of pocket expenses are higher. All things equal, if you have health coverage, then the full settlement value is lower.
Health plans or insurers generally pay at a lower rate. In Florida, an injured person can only recover the amount paid by the plan and your out of pocket expenses.
Your out of pocket expenses include your health insurance deductible and co-pays. Find out how health insurance, Medicaid and other first party coverage affect the full value of a case and the injury settlement value.
26. The Full Settlement Value
Is an injury case worth pursuing?
Some personal injury cases have a small full value. All cases take a lot of time and cost to be handled properly. A small full value does not justify the time and expense.
Attorneys cannot represent every person who is injured. If they did, they would go out of business. Some claims are worthless.
Attorneys turn down cases. I estimate that attorneys reject about 33% of personal injury claims because the full settlement value is too small. I know this is true for my firm.
27. Attorney’s Fees and Costs
If you do not want to hire an attorney, you can skip to the next factor. However, many people hire a lawyer. If you do, their fees and costs will affect the settlement. Florida injury lawyers do not charge an upfront fee.
Rather, they are only paid if they recover money. This is known as a contingency fee. This is great for injured claimants.
Most are low-income or middle class. They cannot afford a lawyer without a contingency fee.
Different states allow attorneys to charge different fees. For example, in Florida, the standard fee is 33 1/3% of the total injury settlement.
This is if the case settles before a lawsuit. If your attorney files a personal injury lawsuit, then the fee usually increases to 40%.
Costs are in addition to this amount. Then your medical bills and any liens are paid. The client then receives the net settlement.
The attorney’s fees are less in cases against the government. This is applies to both city, state and federal government entities. Find out more about attorney’s fees in Florida injury cases.
28. Time it takes to settle a personal injury claim
Injury cases take time to settle. This is true if you want a fair settlement. The time it takes to settle may depend on your last medical visit.
It may also depend on whether there is limited insurance. A dollar now is worth more than a dollar in one year. This is known as the time value of money.
Insurers may settle for a reduced amount prior to trial. This is because the injured person’s costs increase as the trial date gets closer. Insurers know this.
29. Insurance Company Closes Your Claim
An insurance company may close your claim. They usually do this for inactivity. Do not worry. It may slightly delay your case. Send them a letter asking them to open the claim.
30. Did the at fault party cause your injuries?
To win a personal injury claim, the defendant must be negligent. After you can prove negligence, you need to show that the negligent party caused your injuries. This is called causation.
Causation means that someone’s negligence was the legal cause of the claimant’s injury. Causation needs to be supported by medical testimony.
31. Potential Defendants
All things equal, the injury settlement value of a case may increase as the number of defendants increases. It is easier for two defendants to each pay $32,000, than it is for one to pay $64,000.
The injured person must know every potential defendant as soon as possible. If they do not, they may be leaving money on the table. Find out the 11 parties who you can file a personal injury lawsuit against in a car accident case.
32. Your lost wages can increase your personal injury settlement
If someone’s carelessness caused you to lose money by being unable to work, you may be able to get paid for your lost wages in the injury case. Your lost wages increase the full value of the case.
If you missed work from the accident, this may show that you were truly injured in the accident. This can increase the pain and suffering component of the claim. This is particularly true if you were an employee or worker who rarely missed work prior to the accident.
The injured person should never miss work solely in the hopes to get more money. As I discussed in #12, exaggerating your injuries can cripple your case.
The responsible party who may pay your lost wages paid in Florida is different based on the type of accident in which you were involved. For example, an injured person’s lost wages are paid differently in most Florida car or truck accidents than in a Florida motorcycle crash or slip and fall case.
Find out if you can get paid for your lost wages in a Florida accident case.
33. Were you working at the time of the accident or incident?
If someone’s carelessness causes your injury while you are working in Florida, you may have a personal injury claim against that party. The personal injury claim is in addition to a workers compensation claim against your employer.
There are many cases where the employee cannot file a personal injury lawsuit. For example, an employee generally cannot file lawsuit for personal injury against his or her employer.
In certain cases, the full value and settlement value of your personal injury claim will be smaller against the third party than if you were not working because your economic damages (e.g. particularly your medical bills) may be less since workers compensation pays your medical bills at 100%.
Whereas if someone’s negligence caused your injury while you were not on the job in Florida and did not have health insurance coverage, the full value of your out of pocket medical bills is higher which raises the full value of your case.
The positive aspect about a personal injury case against a third party that arose while you are working in Florida is that the law is very favorable to the injured person in terms of reducing the workers compensation lien.
If you have a Florida personal injury case, the workers compensation insurer is required to reduce its lien at a minimum by attorney’s fees and costs. This is just one of 11 reasons to hire a Florida injury lawyer if someone’s carelessness causes your accident and injury while you are in Florida, or on a cruise or boat.
Without a lawyer, the workers compensation carrier does not have to reduce its lien against the injured party’s personal injury claim by attorney’s fees and costs.
If the injured person was not made whole by the personal injury claim against the careless party, the workers compensation carrier needs to further reduce its lien. The injured person should present all possible evidence to the workers compensation insurer showing that he or she was not made whole.
The most common situations that I have encountered where people are injured while working in Florida or live in Florida, and have a third party claim are when:
- Another truck crashes into the truck driver’s truck (such as a big rig, tractor-trailer) ($210,000 Settlement)
- A car hits a security guard at shopping mall who is driving a vehicle (golf cart, etc.) ($10K personal injury policy limits settlement)
- A car hits a police officer who is responding to an emergency call. ($125,000 Settlement)
- A worker who is on a business trip slips and falls on water while walking in her hotel Miami-Dade County, Florida ($23,000 Settlement). This is just one of my many settlements for hotel accidents.
- A car crashes into (e.g. rear ends, etc.) a worker who is driving a vehicle while in Florida on a business trip. ($57,000 Settlement)
34. Your cell phone use can affect your personal injury settlement
Someone’s carelessness may cause another’s injury. The injured person should expect that the liability insurer may hire a defense attorney.
The attorney will request that the injured person provide them with the number and service carrier associated with each cellular telephone. These are for phones used by the victim and/or registered in his or her name.
This includes all numbers registered to and/or used by him or her under a “family plan” or similar service. They will want this info for those used at the time of accident or currently used.
In most cases, you won’t have to file a personal injury lawsuit. However, in some cases, the insurance company may deny liability or make an unreasonable offer. If this happens, you may need to file a personal injury lawsuit.
The defense attorney may request copies or screenshots of all photographs associated with that account during the two years prior to the date of the accident. He or she may also request copies or screenshots of all photographs associated with that account from the date of accident to the present.
The defense attorney may also request copies of any documentation outlining what calls were made or received on the date of loss.
The defense attorney generally asks these questions to determine if you were on the phone at or close to the time of the accident. If the injured person was on the phone, at the time of an accident, it may constitute comparative negligence and reduce the full value of the claim.
Even if it does not make the claimant at fault, it can discredit his or her testimony because perhaps his or her concentration was lacking.
The worst thing for the injured person can do is lie and say that he or she was not on the phone if it is untrue. If the defense attorney proves that you were lying, it can damage the case beyond repair.
35. Is the Careless Party Likeable?
If someone causes injury to another, in the Florida personal injury case jurors are not supposed to consider the likeability of the careless party when deciding whether the defendant was negligent and, if so, whether the negligence caused the claimant’s injury.
But they do. It is human nature.
If the at fault party is likeable, this makes the case tougher. As a result, you the insurance company may make you a smaller injury settlement offer.
For example, a Disney World adjuster may reduce the full value of a claim because they know that Orlando jurors like Disney. After all, Disney is the happiest place on the earth.
The same can be said about Publix Supermarkets. Many people love Publix, including myself, because shopping there is often truly a pleasure.
Human psychology makes it tougher to punish, or award damages against, people that we like.
That being said, even if a nice person or company’s negligence caused your injury, you may have a great case.
I settled a personal injury lawsuit against the United States government where its driver was a very nice man. The US paid me $125,000 during the lawsuit. Two other insurance companies paid me a combined $200,000 before I sued.
The car crash happened in Coconut Grove, Florida. He felt so bad for not driving more carefully and crashing into my client.
On the flip side, if a defendant’s careless caused your injury and he or she is not likeable, this increases the value of the case. As of May, 2014, 25 percent of Walmart’s “most loyal” customers were shopping there less because of perceptions about how the company treats its workers.
This could hurt Walmart at trial. But Walmart recently just “voluntarily” raised its minimum wage so this should help their likeability.
If the careless party shows little remorse or is angry or prideful, this increases the value of a case. Jurors have an easier time awarding higher pain and suffering amounts against someone who they do not like.
36. Your Experience With Personal Injury Claims (or Lawsuits)
If someone’s carelessness caused your injury, a good barometer that may help you decide whether to hire an attorney is whether you know the purpose behind every question on this detailed twenty-one page personal injury questionnaire.
37. How Much Pain You Suffered
Your pain and suffering level is a huge factor in the settlement value of an injury case. From the second you are injured, your pain and suffering level is being recorded.
Did any surveillance video or video cameras at the accident scene show you in pain? Surveillance video can be in the form red light cameras, store surveillance cameras or witnesses who are recording you with a video camera.
Did any witnesses observe you in pain? When I speak with a witness in an injury case, I ask them questions about my client’s pain level.
Was the injured person client screaming, moaning, crying or making another movement or noise that demonstrates that she or he was in pain. I may send the witness an affidavit to sign which often mentions the pain level of the accident victim.
For example, I settled a slip and fall case against a supermarket. The witness affidavit stated “[Injured person name] was in a lot of pain.”
An affidavit can be just as good in a car or truck crash case, or any other injury case, as well.
I have used affidavits that describe the injured person’s pain level in many Florida personal injury cases that I have settled.
Warning! A poorly drafted affidavit can destroy the value of an injury case. So be very careful. Drafting affidavits is not for the inexperienced or those without an excellent command of the English language.
If you called 911, the audio recording and written transcription may reflect the level of pain that you are experiencing. The same is true if a witness called 911. If the 911 call helps your case, send it to the claims adjuster immediately.
Warning! The 911 audio or written transcription will always be available, but only for a short period of time after the incident or accident.
The ambulance medical records will state the numeric (from 1 to 10) level of pain of which you complained. The type of drugs (e.g. morphine vs. an over the counter pain reducer) which you received will demonstrate the amount of pain which you experienced.
More controlled substances are only given when the patient complains of a high level of pain. Over the counter drugs are given when you have less pain.
However, I settled a truck case for $210,000 where my client’s pain was not recorded in a 911 call. It was also not recorded in medical documentation until five (5) or so days after the crash.
The hospital and doctors’ medical records will also state that level of pain that you experienced.
38. The actual hospital where you treated.
Certain hospitals are more generous with reducing your medical bills than others after you settle your personal injury case. I settled a motorcycle crash case for $445,000 for an uninsured motorcyclist.
His bill was about $125,000. The hospital reduced its bill to $25,000 or so because he was uninsured. This is a rarity though, and has never happened to me before or after that case.
Certain hospitals provide you with your medical records shortly after you request them. Others take a long time. Some hospitals take longer to send you an itemized bill.
Some hospitals, such as Jackson Memorial Hospital in Miami-Dade County, are terrible at responding to our calls asking them to explain the difference between account balance and patient balance.
This can delay the time in which the injured person finally knows how much he or she gets in her pocket from an injury settlement. The $445,000 was paid by Chartis Insurance. Chartis is now known as American International Group (AIG).
39. The Liability Claims Adjuster
Many insurance adjusters are nice. However, they are not your friend.
In certain accident cases, I have filed a consumer complaint against an insurance company. I have done so even though the adjuster was nice. Many nice adjusters still make low offers and delay claims.
In many instances, I do not believe adjusters. I had one adjuster tell me that he reserved the case at $100,000. My client did not have any significant medical treatment following the adjuster’s comment. However, several months later I settled the case for $445,000.
I am glad that I did not believe the adjuster.
40. Medicare Affects Your Personal Injury Lawsuit
If someone’s negligence caused your injury, Medicare may have a huge effect on your injury case. Medicare may pay your medical bills following an accident.
In Florida, a Medicare lien is one components that make up the full value of a case. If Medicare pays for bills, it decreases the full value of the damages case, which then leads to a lower settlement value.
Medicare is entitled to be repaid for the amounts that they pay for treatment related to your claim minus attorney’s fees and costs. One of the many advantages of hiring an attorney – who hopefully knows the law – is that Medicare will discount the amount that you have to repay them by your attorney’s fees and costs.
Learn more about whether Medicare will pay your medical bills after a Florida motorcycle accident.
41. Social Media Accounts
You should expect the insurance company to be looking at your social media accounts. I’ve had this happen on several occasions.
Heck, I often look at defendants social media pages. If I find something that they say that helps my case, I will take a screenshot. And I will be sure to show to this to their insurance company.
You should set all of your social media accounts to private. However, a court can still order you to produce your photos and messages from those accounts. So be careful with what you share on those accounts.
In one case, a judge required the injured person to turn over their social medial photos to the defendant (Target). Nucci v. Target Corp, Case No. 4D14-138.
Let’s say that you were the man in the above picture, and you were making a personal injury claim. Would you want the insurance adjuster to see the above picture?
If your answer is No, then don’t put your photos on social media.
42. Your weight
All things equal, thinner people tend to get larger personal injury settlements in injury cases. They are less likely to have pre-existing back and joint pain.
In addition, jurors tend to like attractive people. And thinner people tend to be more attractive.
43. Your Dates of Employment
Your dates of employment for the past 10 years may affect your injury case. Consistent employment shows stability. It is acceptable to move from job to job if you are changing jobs because you are taking on more responsibility.
On the other hand, someone who cannot hold a job may be viewed by an adjuster as someone who may not make a good witness. Injury attorneys love to represent injured people who have been at the same job for many years.
In one case, my client had worked at the same job for 25 years or so. He lost his job due to his injuries. During his personal injury lawsuit, the defense attorney asked him about his employment.
He made a good witness because his long period of employment with the same employer showed his loyalty. I settled his personal injury lawsuit for $300,000.
If you do not have steady employment, this can hurt your loss of future earning capacity claim.
44. Did you sign a settlement release?
Don’t just blindly sign the insurance company’s settlement release. You should demand or negotiate the terms of the personal injury settlement release with the claims adjuster.
If you do not, you can lose the right to make any other claims arising from the same accident.
Auto Accident Cases
In a Florida motor vehicle (e.g. car, truck, motorcycle, etc.) accident case, you must give the uninsured motorist insurer a chance to match the bodily injury (BI) liability insurer’s offer or waive subrogation. If you fail to do this, you lose your right to make an uninsured motorist (UM) coverage liability claim.
In addition, if the BI liability release does not preserve your right to make a UM claim, you lose this right. Auto insurance releases do not have this language. You have to demand that the BI claims insurer include this language.
Premises Liability Accidents
If a company’s negligence caused your injury on their premises, and you settle with a tortfeasor, you need to make sure that the release preserve the right to make a claim against the others. If the release does not preserve this right, you cannot make a claim against the others.
For example, let us assume you a hotel guest in Fort Lauderdale, Florida. You close the bathroom door. It shatters and cuts you.
You may want to make a personal injury claim against the hotel. You may also want to make a personal injury claim against the glass installer.
If you settle with the hotel (often via its insurer) and fail to preserve your right to make a claim against the glass installer, you kill your right to make a claim against the installer. You can be leaving a lot of money on the table.
In Florida, you also need to be sure to always preserve your right to make a claim against future individuals or companies for medical malpractice which arises out of the accident.
If the injury settlement release does not preserve this right, you cannot file a medical malpractice lawsuit against any medical professionals for medical malpractice. This is true even if the doctor gave you badly injured you.
45. Punitive Damages Can Increase Your Personal Injury Settlement
Punitive damage claims are in addition to economic damages and non-economic damages. If DUI driver’s negligence, or driver who was on a cell phone, caused your injury in a Florida car or truck crash, you may be able to make a punitive damage claim.
If the Florida DUI crash victim is a witness is the criminal trial, it can increase the likelihood that he or she may make a punitive damage claim.
Punitive damages increase the full value of a case. Check out some DUI injury settlements. You can see that DUI accident claims are generally worth more.
46. Giving a Statement Can Kill the Chance of Getting a Personal Injury Statement
If the injured person gives a statement to the liability claims adjuster, he or she may be decreasing the value of his or her case.
Examples of liability adjusters, to whom you should not give a statement without an attorney, are: the tortfeasor’s auto insurer, or an adjuster for a premises where you were injured (e.g. supermarket, store, hotel, house, restaurant, condominium, apartment complex, mall, cruise ship, etc.).
You have a duty to give a statement to a PIP or UM insurer to which you are an insured under the policy. A recorded statement can later be used against you.
You have a right to get the recorded statement from the adjuster. In my initial letter of representation to every insurer, I request a copy of any statements in addition to insurance information and other documents.
47. Filing for Bankruptcy Can Affect Your Injury Claim
A personal injury lawyer’s nightmare come true is getting the following call from a client.
Hey, Mr. attorney, I filed for bankruptcy.
Because when you file for bankruptcy, your personal injury claim may then belong to the trustee. This means that it might no longer be your personal injury case. It will depend on the type (chapter) of bankruptcy that you filed.
On the other hand, if someone who caused your injury files for bankruptcy, your case may wind up being worth pennies on the dollar.
Companies that have been around for years have filed for bankruptcy. For example, Hertz rent a car have filed for bankruptcy. People who once had a great case may see their case become almost worthless. If the defendant files for bankruptcy, it can turn a $1 million dollar case into a $20,000 claim.
If the person or company who caused your injury files for bankruptcy, you best hope is that they are not self insured. In other words, you hope that they have liability insurance.
If they have liability insurance, you can still make a claim against their liability insurance even if they file bankruptcy. To do so, you may have to file a motion to lift stay of bankruptcy (up to the insurance policy limits). You will likely want to hire an attorney to file this motion.
48. Your Ability to Calculate the Personal Injury Settlement Value.
If you do not know how to calculate the settlement value in an injury case, you will not get a fair settlement. The adjuster will just make you a low offer.
When calculating the value of a personal injury claim, you should assign three ranges for pain and suffering. Those ranges should be high, medium and low.
If needed, also assign different percentages of fault. Use an Excel or Google docs worksheet to factor in fault and the different pain and suffering ranges.
It takes many years to become excellent at evaluating personal injury case values.
49. Your marriage may affect the personal injury settlement
Find out why married people who are injured may get more money than unmarried individuals.
50. Whether you have an experienced attorney
In order to get a fair offer, or an offer at all, sometimes the injured person will need to file a personal injury lawsuit. A trial date is usually the best pressure to get an unwilling party or his or her insurance company to to settle.
I had a case against Sedano’s supermarket in Miami where a customer slipped and fell on the sales floor. He claimed that the grocery store’s negligence in failing to keep its floor clean caused him to have two (2) skin grafts to his lower leg.
I tried to settle the case before litigation, but neither Sedano’s nor its insurer offered any money.
I filed a personal injury lawsuit and got a trial date. We fought hard during the case. A couple of months before trial, I settled his personal injury lawsuit with the supermarket’s insurance company (Crum & Forster).
They paid us $300,000. Crum & Forster is an excellent insurer. This is one of the many cases that I filed a personal injury lawsuit after negotiations failed.
Insurance adjusters may look at an attorney’s track record when deciding how much to offer their client. If your attorney lacks experience handling Florida accident cases, this may decrease the offer.
Florida ethics rules prevent lawyers from saying that they are the best. Attorneys are not allowed to claim to be the “best Florida injury lawyer” or “best Miami accident attorney.”
However, there are many factors that can help you choose a good Florida accident lawyer.
52. Video of the Incident Can Affect Your Personal Injury Settlement
If a picture speaks a thousand words, then a video speaks ten thousand. I settled a slip and fall personal injury lawsuit for $300,000 against a supermarket. The accident occurred in Miami.
Before I filed a personal injury lawsuit against the supermarket, I requested the video of the accident. The supermarket’s insurance company sent me some surveillance video that captured the fall.
After I filed a personal injury lawsuit against the store, they gave me video. The additional video helped our case grocery store accident case.
The video showed that our client’s crutch glided when it made contact with the floor.
We settled a case for $210,000 where our client fell down at a Denny’s restaurant in Dade County, Florida and broke his wrist. After I filed a personal injury lawsuit against the restaurant, they gave us video surveillance that showed my client’s fall.
Video can make or break a case. As soon as possible after an incident, you should send the prospective defendants a written request to preserve any and all video of the entire premises where the incident occurred.
Some ambulances have a built-in video that records whenever there is a hard brake. So, you should ask a commercial driver to preserve and send you video of the crash.
If you slipped and fell or were injured on a county bus, there may be video that shows your movement (if any) at the time of the accident. If the impact (your fall or movement) was not that hard, this can destroy or hurt your personal injury case.
Even if you received a lot of medical treatment, if a video shows that you hardly make contact with something or moved at the time of an accident, you may have a very difficult case.
53. Exaggerating your injuries.
Tell your doctors about all of your pain, but do not be dramatic. The last thing you want is for your medical records to say that you have excruciating pain yet your gym records show that you were working out every day.
Once a lawsuit is filed the defendant or its insurance company can basically get (subpoena) more information than you can ever imagine, and they often do.
Expect the insurance company to hire a private investigator to follow you. From the moment of your accident forward, you should prepare as if the case is going to trial. Do not exaggerate your injuries.
Assume that from the second you are injured in your accident, every moment has been recorded by a private investigator hired by the insurance company. Apart from being morally wrong, exaggerating will hurt your case much more than it helps.
Yet I still hear stories of injured people exaggerating their injury in an attempt to get more money. It always backfires.
In an abundance of caution, act as if the defendant or claims adjuster has access to all of your social media accounts including, but not limited to, Facebook, Twitter, Linkedin, Google+, Pinterest, Instagram and Vine.
They will be looking to find you doing activities that you say that you cannot do since the accident. The insurance company will be looking to see or hear you talking about how good life is.
They will be looking to see if you are out dancing at a club when you are telling your doctors that your pain is debilitating.
On the flip side, defendant’s post things on social media than can cripple their case.
Do not lie! Don’t lie to your attorney. Or your doctors. Don’t lie to the insurance company.
You may think that it is going to help you get more money but it can kill your entire case. The court can dismiss your case if you lie about something material (important to the heart of your case) such as pre-existing injuries.
55. Did you sign a pre-injury release?
If an adult signed a pre-injury release, he or she may have no case. You need to thoroughly examine the pre-accident release.
56. Do You Have Minor Children?
If an injured person has one or more minor children, this may increase the value of their case. This is because an injury may make it more difficult to take care of your minor child.
Moreover, if you have a special needs child, this may also increase the case.
But don’t take my word for it.
In one case, the judge said:
Plaintiff argues… about the impact of those injuries on her life should come into evidence because it is relevant to the valuation of Acosta’s claim and the reasonableness of GEICO’s settlement overtures.
Specifically, GEICO knew that Acosta’s injuries impaired her ability to take care of her special needs daughter, and Plaintiff likely will argue that GEICO should have taken that into consideration when valuing Acosta’s claim… The Court agrees that such evidence is relevant to the issue of GEICO’s valuation of Acosta’s claim.
That quote was from Hines v. GEICO Indemnity Company, Dist. Court, MD Florida 2016.
In addition, an injured person’s claim value may increase with the number of minor children that he or she have. So all other things being equal, someone with 3 kids may get more than someone with 1 child.
The theory is that an accident has impacted your life more if you have several children, as opposed to one, who you cannot enjoy spending time with after an accident.
If you have multiple minor children, it tends to show that you are family oriented. Jurors and adjusters tend to like family oriented people because it may show compassion and stability.
I am not trying to minimize the negative impact on your relationship with your only child if you only have one. More children means more potential witnesses to talk about the extent and effect of your injury on your lifestyle.
This can be great if your children can articulate the limitations that the accident has had on your activities of daily living including, but not limited, spending quality time with your kids because you were in pain or disabled.
More kids also means more potential witnesses to the accident, and as you will see further below, witnesses can make or break a case.
57. Where you live affects your personal injury settlement
The city that you live in may impact the value of your case. Some locals do not take kindly to outsiders. For example, Key West, Florida, is a small community and its juries are known to be harsh to non-residents.
However, if you have a great case, you may still be able to get a good result in Key West.
For example, an ambulance crashed into some one driving a moped. It resulted in crushed facial bones and fractures of the vertebrae in the man’s spine. Despite Key West being a tough venue, the injured person got a $2.1 Million verdict. (That was not my case.)
Key West is just one example of a city where juries may potentially be tough on outsiders. However, there are also many other cities throughout the state of Florida where the same may be true.
I have settled several cases for people who were in an accident in the Keys. In those cases, another driver crashed into my client. As a result, my client was injured. Key West juries are known to be more sympathetic to residents.
58. Conflicting Accounts (He said, She said.)
In a personal injury case, the victim must prove that the defendant acted negligently. Sometimes the parties to the dispute give conflicting accounts of how the incident happened.
For example, a customer may claim that a store employee assaulted him or her.
The customer and the employee may have two different versions of events. The store employee may say he was acting in self-defense. The customer may claim he was attacked for virtually no reason.
When this happens, witness testimony is huge. But if there are no witnesses, it may boil down to the credibility of each party involved. Sometimes the injured person should seriously consider reducing the full value of the case if they want to settle.
This may very well be true if there are conflicting stories and no witnesses.
59. The date of the incident affects your personal injury settlement
The date of the accident may affect an injury claim for 3 reasons.
Laws change, which may affect the burden of proof. For example, a few years ago Florida’s slip and fall law was changed to now require the injured person to prove actual or constructive notice if you fall on a transitory foreign substance at a business.
The date of the accident also affects the time that you have to file a personal injury lawsuit for negligence in Florida.
If the date of your incident may make it such that you complete your treatment toward the end of the year. If this happens, you should send the carrier your demand before the end of the year. Your case may then have a chance of settling quicker. It may also settle for a larger amount.
Liability insurers like to close our cases. This includes settling them. They need to close their books out by the end of the year.
You need to get all documentation that supports your claim as soon as possible. Send it to the carrier. This is so they can properly sets its reserves in time.
60. The exact time of the accident.
The time of the accident may be used to verify whether you were on a cell phone when you were injured.
A claims adjuster may discount the value of your case by your comparative negligence if he believes that your cell phone use distracted you and caused your injury.
An adjuster may think that you are at fault because certain hours of the night may be associated with drinking or drugging. For example, an adjuster may think that you may have been on drugs or drunk if your accident happened at 4 a.m. and you were going or coming to a party.
61. Your criminal convictions can affect your personal injury settlement
Have you been convicted of a crime, other than a juvenile adjudication, which under the law under which you were convicted was punishable by death or imprisonment in excess of 1 year, or that involved dishonesty or a false statement regardless of the punishment?
If the answer is yes, it may decrease the value of your case. That being said, I settled a personal injury slip and fall lawsuit for $300,000. In that case, my client was a past political prisoner of foreign country.
I also settled a claim for nearly $200,000 for a past convicted felon. Those are just a couple of examples of the many injured people who I have represented who have been convicted of felonies.
Don’t think that the liability adjuster won’t spend $24.00 to run a Florida criminal history information search on you. You should assume that they will.
Sometimes I search my clients past criminal history. This is particularly true if I am about file a personal injury lawsuit.
This is because the defense gets to ask you this question during a lawsuit for personal injury. And you have to answer it.
Once I know my clients criminal history, I can properly evaluate the value of a personal injury case.
If you were convicted of a crime while you were a minor, it should not affect your injury case.
Example of how some past crimes do not affect your Florida injury case value
Assume a claimant accepted a withhold of adjudication and probation for misdemeanor theft. He successfully complete probation. His file was sealed.
Since he was given a withhold of adjudication, it means that he has not been convicted of a crime. (See Rule 3.692 of the Florida rules of Criminal Procedure and Florida Statutes 943-943.059).
If the defense attorney asks the injured person if he has been convicted of a crime, his answer should be no. Therefore, the jury will never get to hear about it and it does not decrease the case value.
62. Your employer.
Your employer can be a great witness in an injury case. A supervisor can make a great before and after witness. He or she may be able to talk about how you have been affected by the accident. An adjuster may be more likely to believe a co-worker than a family member.
If you are self-employed, then you may have a more difficult time showing your wage loss than if you a W-2 employee.
If you have health insurance through your employer, then the type of company (e.g. large company vs. small company or governmental entity) that you work for may have an effect on settlement value. Your employer’s status may affect whether you can present the full billed medical charges to the jury.
It may also affect the amount of money that you may need to repay your health insurance plan from the personal injury settlement. I discuss this further below when I talk about health insurance in #25.
63. Does the careless party have a self insured retention (SIR)?
Florida Car, Truck, Motorcycle and all Vehicular Accidents
If a negligent driver caused your injury in a Florida accident, and any potential defendant has an SIR, you may be able to make a claim against any uninsured motorist coverage (to which you are an insured) from dollar one. This is the only situation in Florida personal injury law where the claimant may be able to collect the same damages twice.
I settled a case for $210,000. A truck driver’s negligence caused my client’s shoulder injury in a crash. The negligent driver was driving a truck for Customized Trucking Services, which is a division of Crowley. The careless driver was covered under the Jacksonville, Florida trucking company’s liability insurance.
The policy was with Travelers Insurance and it had an SIR. We immediately made a claim against the uninsured motorist (UM) coverage insurer, Progressive Insurance, for the $10,000 limits.
Progressive old me that my client had no case for UM coverage. Progressive then paid us the $10,000 limits before we even received a dollar from the trucking company or its insurer.
Tougher to Get Money
It may be tougher to get money from a company that has a SIR because the company is settling the case with its own money. Insurers often have an easier time parting with their money than companies that have a SIR.
However, we have still settled cases against companies who have an SIR for as much as $210,000.
Which companies may have a SIR?
- American Airlines arena
- Bed Bath & Beyond
- Big Lots
- Buy Buy Baby
- Carnival Cruise lines
- Dadeland Mall (Simon malls)
- Denny’s (corporate)
- Dolphin Mall
- Fresh Market supermarket
- Gap store
- Hyatt hotels (corporate)
- NAPA auto parts stores
- Petco and Petsmart
- Publix Supermarket
- Royal Caribbean
- Sawgrass Mills
- Sedano’s Supermarket
- Sun Life Stadium
- Sunset Place Mall
- Target Stores
- Walt Disney World in Orlando
- Whole Foods
- Winn Dixie Stores
- Universal Orlando Resort (Universal Studios)
- Large hotels, resorts and motels
- Large malls.
- and much more.
64. Did you drink alcohol, or take drugs or medications, within 12 hours before incident?
65. Pain Medication Taken Since the Accident
I know defense doctors who will agree that prescribing a narcotic to an injured person is a significant decision. An example of a narcotic is Lortab. They will agree it is significant because of the risks.
Lortab is prescribed for moderate to severe pain. Defense doctors will agree that if someone has been taking Lortab for two years, it would indicate that he or she has been in moderate to severe pain for two years.
Some defense doctors will say that they cannot measure pain. They cannot tell what pain someone has or does not have. Some defense doctors will say that they cannot say that someone will not have pain when they are older.
The full value of an injured person’s claim increases as they take more narcotics for the pain.
66. Lighting Conditions
The lighting conditions may affect your personal injury claim value, regardless of the type of accident.
Slip, Trip and Fall Cases
The above picture is from a personal injury case where my client, tripped over a dangerous curb and fell in a Miami Beach apartment complex courtyard, and fractured her hip. I paid $1,200 of my own law firm money to retain an engineering expert to take pictures and measurements of the dangerous curb and the lighting.
As is standard in many Florida injury lawyers’ fee contracts, my contract states that the client is not responsible for costs if we do not recover money.
Motor Vehicle Accident Cases
I settled a case $110,000 where a car hit a pedestrian in Homestead, Miami-Dade County, Florida and she suffered a facial fracture. The incident occurred during daylight hours so the full value of the case was not reduced due to lighting.
I have handled many other cases where lighting did not increase my client’s fault in the case.
67. Your age may affect your personal injury settlement
Your age may have a big affect on your settlement value. If you are elderly, the insurance company may purposely try to delay your case until you die.
If you die of unrelated causes, your personal injury settlement value takes a big drop.
68. Do You Make a Good Witness?
The quality of the plaintiff (person bring a personal injury claim) can have a big effect on the value of his or her case. This may affect your personal injury settlement value of a case pre-suit. This is particularly true if you give a statement to the liability claims adjuster for the insurance company.
Speaking with the insurance company is one of the 3 things that you should never do after an accident, unless you have a duty to do so pursuant to your auto insurance contract. If you are an honest, emotionally stable, hard-working, nice person this will help your case.
Juries like people who do everything possible to get back into the workforce. Insurance adjusters think the same way. If you are unlikable, dishonest, angry, greedy, you should expect to get less money in your personal injury case than someone who is likeable.
69. Your rate of pay.
Injured people who have a higher rate of pay tend to get larger personal injury settlements. This is because they have a higher past lost wages, and larger loss of future earning capacity. In Florida, there is no cap on the amount of money that can be awarded for lost past wages or future loss of earning capacity.
High wage earners may have wage claims that can reach the millions.
70. Is the Insurer Using Claims Evaluation Software for Personal Injury Settlements?
Some liability insurers use Colossus, which is a software that evaluates bodily injury claims so that the offers can be consistent. The adjuster will answer questions about the injured person’s medical treatment, degree of pain and suffering, degree of permanent impairment to the injured person’s body, and the effect on the claimant’s lifestyle.
Once the adjuster answers these questions, Colossus will give him or her a summary of the claim, which includes an injury settlement range. Colossus is used for both personal and commercial lines insurance.
A personal lines insurer covers personal auto or motorcycle insurance, boat and homeowner’s insurance.
Examples of a claim where a personal lines insurer provides liability coverage are accidents arising from a private passenger car accident, motorcycle wreck, truck crash, dog bite, slip or trip and fall at a home. The personal lines insurers that most people are familiar with are State Farm, GEICO, Allstate, USAA as well as many other insurers.
A commercial lines claim would be a personal injury claim for a slip and fall or other injury at a business establishment. It also includes an accident involving a truck used for business purposes.
The problem with Colossus is that is lacks the human component.
It has difficulty or does not incorporate the likeability of the claimant. This can be a huge factor that affects the injury settlement value. For smaller injury claims, Colossus may be used more frequently.
For larger claims, senior adjusters will evaluate the claim based on their experience and put less weight on Colossus’s input. Some insurers use Fault Evaluator software that helps adjusters through the auto accident fault determination process. It gives consistent injury settlements.
Senior adjusters rely more on their gut and experience than newer adjusters. If your attorney has filed a personal injury lawsuit, it’s likely that a senior level adjuster is assigned to your case.
Senior level adjusters have more experience with personal injury lawsuits than lower level adjusters. Senior adjusters have a better understanding of what affects case value.
An insurance company will assign its best adjuster to your personal injury lawsuit.
Attorneys who have handled several personal injury claims and lawsuits deal with the same issues over and over. We see the same defenses that the at fault raises in personal injury lawsuits.
I have attended hundreds of hours of continuing legal education on Florida injury and auto accident cases which has also helped me evaluate cases.
Adjusters also attend many seminars.
71. Whether Medpay Coverage is Available
Medical payments (Medpay) coverage is optional insurance coverage that pays for the injured person’s medical bills, up to a certain amount, regardless of fault. Unlike liability coverage, Medpay coverage is not reduced by the injured person’s fault in the accident.
In Florida, an injured person may have access to Medpay coverage in two (2) types of accidents: motor vehicle accidents, and accidents at a premises.
Medpay coverage in auto accidents
In a Florida auto accident, Medpay pays the 20% of medical bill that are not covered by PIP.
Accidents at a premises (e.g. slip, trip and falls, other accidents)
If you are injured at a premises, their Medpay coverage may pay for your bills, up to a certain amount.
Large stores and supermarkets generally do not have Medpay coverage. I settled a personal injury claim for a client who tripped and fell at a Miami Beach apartment complex. The apartment had $5,000 in Medpay coverage.
In addition, I settled a personal injury claim for a $78,000 for a lady who tripped and fell. Her accident happened at a condominium building in North Miami Beach, Florida. As a result of the fall, she broke her nose.
The condo building had $5,000 in Medpay coverage. I have settled many other premises accident cases where the premises had an insurance policy with Medpay coverage.
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Over the past 16 years, I have settled cases where someone’s carelessness caused my clients’ injuries in many following Florida counties and cities.
Editor’s Note: This post was originally published on April 2013 and has been completely revamped and updated.
1 See Davenport v. State Farm Mut. Auto. Ins. Co., No. 3:11-cv-632-J-JBT, 2012 WL 555759, at *1 (M.D. Fla. Feb. 21, 2012); see also Patterson v. Turner Constr. Co., 931 N.Y.S.2d 311, 312 (N.Y. App. 2011) (holding that the “postings on plaintiff’s online Facebook account, if relevant, are not shielded from discovery merely because plaintiff used the service’s privacy settings to restrict access”).