How do Personal Injury Claims Work in Florida?

How do Personal Injury Claims Work in Florida?

Licensed to practice law in all Florida State Courts and Federally in the United States District Court for the Middle District of Florida, Marie embarked on her career as a Prosecutor in Florida’s Sixth Judicial Circuit. In the crucible of the courtroom, she honed her craft, fearlessly tackling everything from DUIs to First Degree Murders, earning the title of Lead Trial Attorney within a year of joining the State Attorney’s Office.  

Now, Marie stands as a formidable force in both criminal and civil litigation, with her focus on Personal Injury (car accidents, slip-and-falls, wrongful deaths, dog bites, nursing home negligence, and medical malpractice), First-Party Property (home insurance claims), and Criminal/Traffic Defense cases. Her victories against insurance giants are legendary, securing exceptional outcomes for her clients and earning her accolades like Super Lawyer Rising Star, Tampa Bay Magazine’s Top Attorneys & Rising Stars, and a coveted spot as one of Tampa Bay’s Top 10 Attorneys, nominated by NAOPIA.  

But Marie is more than just a legal luminary – she’s a relentless negotiator, a devoted mother and spouse, and conversational in 3 different languages, including English, Spanish, and Italian. In the arena of law, Marie Schoeb isn’t just a name – she’s a force to be reckoned with, a beacon of justice, and a champion for those in need.  

What are the top causes of personal injuries in Florida? 

The umbrella of “personal injury” law is home to many different sub-categories. At the most basic level, personal injury cases most commonly arise from the negligence of one party that resulted in injuries and other related damages to the other party. Negligence is broken down into four elements: duty, breach, causation, and damages. For example, in a car accident, if the at-fault party runs a red light and T-bones another vehicle that had the right-of-way, the victim of that accident would need to prove:   

1) that the at-fault driver had a duty to drive their vehicle in a reasonably safe manner, 2) the at-fault driver breached that duty by failing to pay attention and drive in a reasonably safe manner, 3) the at-fault driver’s breach of that duty caused the injuries and other related damage to the victim, 4) what those damages are (injuries, past lost wages, past and future pain and suffering, loss of future earning capacity, etc…).   

Car accidents and premises liability (including slip-and-falls, and other similar cases with injuries caused by an unsafe condition on the premises of an individual or entity) are of the two most common types of personal injury cases. Other types of cases that commonly arise under the personal injury umbrella in Florida are wrongful death, medical malpractice, dog bites, and nursing home negligence.  

What are Florida’s No-Fault Laws? 

You may have heard that Florida is a “No-Fault State”, but what does that really mean? In Florida, the No-Fault laws were enacted in relation to car accident cases to relieve some of the burden on all parties involved immediately following the accident. The idea was, in part, that they did not want people injured in a car accident to avoid seeking medical treatment for their injuries while they waited for insurance companies to make liability determinations. Instead, Florida’s No-Fault laws require Florida drivers to carry at least $10,000.00 in Personal Injury Protection (PIP) coverage. This means, that regardless of who is determined to be at-fault, under the most common PIP policies, PIP will generally provide coverage of up to 80% of the medical bills submitted to them, up to the policy limits of $10,000.00, depending on the injuries and diagnoses. Under some PIP policies, the individual may also recover up to 60% of lost wages submitted to the insurance company, but it would typically all come from the same $10,000.00 PIP coverage. In order to trigger PIP coverage, it is important that the injured person is treated within 14 days of the accident. Failure to treat within the first 14 days of the accident would likely result in the insurance company denying PIP coverage.  

What is Florida’s statute of limitations for personal injury cases? 

Prior to Florida’s New Tort Reform Law that went into effect on March 24, 2023, the statute of limitations for basic negligence cases, such as car accidents and premises liability cases (not involving death), was four years from the date of loss. That means the lawsuit must be filed within four years from the date of the accident. For car accidents and premises liability cases that occurred prior to March 24, 2023, the four-year statute of limitations still applies, however the other changes in the Tort Reform Law, other than the shortening of the statute of limitations, will affect those cases that occurred prior to March 24, 2023, but were filed after March 24, 2023. Accidents and premises liability cases, like slip-and-falls, that occurred after March 24, 2023, must be filed within two years from the date of loss under Florida’s New Tort Reform Law. Generally speaking, many of the other areas that fall under the umbrella of personal injury, like wrongful death, medical malpractice and nursing home negligence, must be filed within two years from the date of loss. Failing to file a lawsuit prior to the expiration of the statute of limitations applicable to your case will likely result in you losing the ability to recover anything in your case.  

How does personal injury compensation work in Florida? 

In Florida, there are various ways a person can be compensated in a personal injury case. Common areas of recovery, both non-economic damages as well as economic damages, including but not limited to:   

  • past and future medical expenses, 
  • past and future pain and suffering, 
  • past lost wages, 
  • loss of future earning capacity, 
  • damages related to mental anguish, 
  • out-of-pocket expenses and 
  • loss of enjoyment of life. 

Using a non-fatal car accident for example, insurance companies evaluating the claim will take a look at liability issues, medical treatment, diagnoses, past medical expenses, lost wages, future treatment recommendations, proof of mental anguish, out-of-pocket expenses, and a proposed calculation for pain and suffering, among other things, in their determination of how to value the case. An experienced personal injury attorney knows what documents are needed and what arguments need to be made to maximize and support the valuation of their client’s claim. Most personal injury attorneys can be retained with a signature on a contingency fee agreement. This means that you will not owe your attorney fees and costs unless they win with either a settlement agreement or at trial. In most personal injury cases, the attorney will be owed a percentage of the settlement proceeds for attorney’s fees, plus costs incurred in pursuing the claim.   

How do I prove a personal injury claim in Florida? 

Personal Injury claims can be proven in a variety of ways. Testimony of the parties, witnesses, and experts; medical records; medical bills; lost wage documentation and testimony; photographs, videos, phone records, etc. Prior to filing the lawsuit, proving up the claim relies heavily on the documented evidence, whereas after a lawsuit is filed is where more testimonial evidence is presented. However, in a case like a medical malpractice case, for example, experts must be retained at the beginning of the claim to properly put the other party on notice of the claim under Florida law. Being well-versed in the rules of evidence to assure that the proper foundation is laid to allow the evidence to be admissible is critical.  

What should I do in the first 48 hours for a Florida Personal injury claim? 

In a Florida Personal Injury claim, your health is of the utmost importance. Seeking medical attention as early as possible is important. If you are able, it will be very helpful to your claim to gather information at the scene of the incident like names of witnesses, insurance and contact information from the other party, photographs and/or videos, taking notes on statements that are made and who made them, making a list of providers that you are seeking medical treatment with, and calling police to the location of the car accident, and while it is not required to retain an attorney in a personal injury claim, having their experience on your side, fighting on your behalf, especially with no upfront fees or costs, may give you some peace of mind and ensure you are exhausting all avenues to maximize the value of your claim.  

What is the comparative negligence rule in Florida? 

The comparative negligence rule in Florida has undergone some major changes under Florida’s New Tort Reform Law, that went into effect on March 24, 2023. Regardless of the date of loss, if the lawsuit for a claim was filed after March 24, 2023, it could be subject to the new law depending on what type of claim it is. The comparative negligence rule means that the Plaintiff’s damages could be decreased if they are found to have contributed to their damages by their own negligence. Prior to Florida’s New Tort Reform Law, Florida followed the pure comparative fault doctrine. That is, even if a Plaintiff was mostly at-fault for their injuries, the damages awarded to them would be reduced proportionally based on the percentage of fault assigned to the Plaintiff.  

Since Florida’s New Tort Reform Law, Florida now follows a “modified comparative negligence” system. This means that if the Plaintiff is found to be more than 50% at fault for the car accident, for example, then they will not be able to recover any damages against the Defendant.   

Have there been any recent personal injury law changes in Florida? 

On March 24, 2023, Florida’s New Tort Reform Law went into effect and made significant changes to the existing laws that applied to many different types of personal injury claims. We will not discuss each and every change in this article, but just highlight a few of the most significant changes. Some of these changes have been explained in greater detail in some of the other areas of this article, but here are some of the more significant changes under Florida’s New Tort Reform Law:   

First is the change from pure comparative negligence to modified comparative negligence standard. That means prior to this new law going into effect, Plaintiffs were able to recover for damages against the other party, even if they contributed to their injuries with their own negligence, under the old law, for example, if damages were found to be $100,000.00, but the Plaintiff was found to be 60% at-fault, they would recover $40,000.00 (the total damages reduced proportionately by Plaintiff’s assigned fault percentage). Under the new law, if the Plaintiff in that same example was found to be 60% at fault, they would not be able to recover anything. This has been applied to almost all negligence cases except for medical malpractice cases.  

Second, prior to the passing of Florida’s New Tort Reform Law, a Plaintiff had four years from the date of loss in standard, non-fatal negligence cases. The new law has shortened that from four years to two years. If a car accident occurred prior to March 24, 2023, that case would still have the 4-year pre-tort reform statute of limitations, but other tort reform changes, such as the modified comparative negligence standard, would still apply to those cases if the lawsuit was filed after March 24, 2023.  

Third, the admissibility of how a Plaintiff can present evidence the amount of their medical bills was significantly changed under Florida’s New Tort Reform Law. Prior to the new law, Plaintiffs were allowed to present the full amount of charged medical expenses to a jury. Since the new law was passed, Plaintiff’s are limited in what amounts they can present for their past and future medical expenses. Specifically, if the Plaintiff has health insurance, regardless of whether their treating doctor used that, they would only be able to present evidence of the amount the insurance coverage would be obligated to pay the provider plus the plaintiff’s portion of the medical expenses. If the Plaintiff does not have health insurance or has Medicaid or Medicare, they would only be able to present 120% of the Medicare reimbursement rate in effect on the date the Plaintiff incurred the medical services, or if there is no applicable Medicare rate, they would only be able to present 170% of the applicable state Medicaid rate, regardless of what they actually owe the provider. For evidence of future medical expenses, under the new law, Plaintiffs can only present what their insurance coverage would provide plus their portion of the medical expenses under their insurance coverage contract. For those that don’t have insurance or carry Medicaid or Medicare, they would only be able to present 120% of the Medicare reimbursement rate at the time of trial or 170% of the applicable state Medicaid rate to support the amount of future medical expenses, regardless of what a particular provider would actually charge or accept.   

There were other notable changes introduced by Florida’s New Tort Reform Law that we encourage you to look into related to changes in Plaintiffs’ rights in bad faith actions against insurance companies, significant changes in what juries can consider in negligent security cases, and changes in the awarding of attorney’s fees and calculations of the same.  

Can you sue the government for negligence in Florida? 

The short answer is yes, but there are many specific prerequisites that could affect your ability to sue them if not properly followed. Under Florida Statute, there are strict pre-suit notice requirements that must be complied with, and a waiting period of up to 6 months from that pre-suit notice. Important considerations should be contemplated when deciding to pursue an action for standard negligence and wrongful death in cases against the state entity. Most notably, there are statutory damage caps of $200,000 for a single state entity, or $300,000 for multiple state entities. This means that even if the jury awards $500,000, for example, in a car accident case where a law enforcement officer was negligent and caused injuries or death to the Plaintiff, the award would be reduced to the statutory amount allowable for that cause of action. For further details, please reference Florida Statute 768.28.   

What type of personal injury claims have you worked on in Florida? 

I have handled various types of personal injury claims, including accidents involving vehicles, pedestrians, motorcycles, semi-trucks, commercial vehicles, and ATVs; wrongful death claims; medical malpractice; nursing home negligence; dog bites, and premises liability claims with various types of dangerous conditions on the premises resulting in injury and/or death.  

What makes a great personal injury lawyer in Florida? 

Compassion, diligence, experience, patience, and availability are what I would say lays the framework for a great personal injury lawyer in Florida. It is important that a personal injury attorney gives realistic expectations about the potential issues that may arise and takes the time to explain the process to their clients. It is important to be compassionate and understanding of what the client is going through. Even if the case may not be worth millions of dollars, it is still overwhelming and life-altering for their client. Taking the time to explain things and educate clients on how these cases work and addressing the strengths and weaknesses of each claim will allow the client to confidently make an informed decision on how to proceed, with their lawyer on the front lines diligently fighting to maximize the value of their claim. No client should ever feel that they are just a number; they should feel valued and know that their case is being taken seriously by the attorney they have trusted with their case. A great personal injury attorney will make themselves available to answer their client’s questions and walk them through the process.   

With 3 convenient locations in Tampa Heights, South Tampa and Brandon, we are ready to meet you where you need.  Give us a call today: 813.225.2695 

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