Motor vehicle accident and other personal injury cases

• Author: Steven F. Samilow
• Pages: 191-324

MOTOR VEHICLE

ACCIDENT CASES

2-1

CHAPTER 2

MOTOR VEHICLE ACCIDENT AND

OTHER PERSONAL INJURY CASES

I. GENERAL POINTS

§2:01 Essential Elements

§2:02 Referral Fees

II. TYPES OF PERSONAL INJURY ACTIONS

§2:10 Motor Vehicle Accidents: The Most Common Claim

§2:11 Wrongful Death Claims

§2:12 Survival Actions

§2:13 Medical Malpractice

§2:14 Other Types of Personal Injury Actions

III. OFFICE PROCEDURES

§2:20 The Initial Client Contact: Telephone Procedures

§2:21 Inter viewing the Client

§2:22 Evaluating the Client and the Case

§2:23 The Contract

§2:24 Alternative Contingency Fee Agreement Approved by Court

§2:25 Constitutional Limitations on Contingent Attorney’s Fees in Medical Malpractice Cases

§2:26 Termination of Employment Contract

§2:27 Record Authorizations Before a Settlement Demand

§2:28 Record Authorizations After a Settlement Demand

§2:29 Advances to Cover Costs

IV. CASE INVESTIGATION

A. Liability

§2:40 Determining Liability and Causation

§2:41 Contributory Negligence Replaced by Comparative Fault

§2:42 Joint and Several Liability Replaced by Fabre v. Martin Standard

§2:43 Acting Quickly

§2:44 Hiring an Investigator

§2:45 Retaining Experts

§2:46 Soft Tissue Injuries

B. Damages

1. General Points

§2:60 Types of Damages

§2:61 Gathering the Data

§2:62 Medical Records and Bills

MOTOR VEHICLE

ACCIDENT CASES

Florida Small-Firm Practice Tools 2-2

2. Types of Damages

§2:70 Past Medical Expenses

§2:71 Future Medical Expenses

§2:72 Disf‌igurement

§2:73 Physical and Mental Pain

§2:74 Emotional Distress

§2:75 Loss of Consortium

§2:76 Lost Wages and Earning Capacity

§2:77 Physical Impairment

§2:78 Property Damage

§2:79 Punitive Damages

§2:80 Prejudgment Interest

C. Insurance Coverage and the Florida Motor Vehicle No-Fault Law

§2:90 Determine Insurance Coverage

§2:91 PIP Coverage

§2:92 Specif‌ic PIP Benef‌its

§2:93 Limitation of Damages

§2:94 PIP Claims

§2:95 Assignment of PIP Claims

§2:96 Liability Coverage

§2:97 Uninsured Motorist/Underinsured Motorist Coverage

§2:98 Exclusion from Coverage

V. BRINGING THE ACTION

§2:110 Statute of Limitations

§2:111 Filing the Complaint

§2:112 Insurer Cannot Be Joined as a Third-Party Defendant

§2:113 Forum Non Conveniens

§2:114 Responding to Complaint

§2:115 Determining Insurance Coverage: Duty to Defend Versus Duty to Indemnify

§2:116 Duty to Defend Is Broad

§2:117 Death of a Party

VI. DEALING WITH INSURANCE COMPANIES

A. The Opponent’s Insurer

§2:130 Insurance Adjusters

§2:131 Reserves

§2:132 Notice Letters

§2:133 Timing for a Demand Letter

§2:134 The Amount of the Demand

§2:135 The Demand Letter

§2:136 Brochures and Videos

§2:137 Negotiations

B. The Client’s Insurer

§2:150 Uninsured/Underinsured Coverage

§2:151 Insurer’s Subrogation Rights

§2:152 Stacking Policies

§2:153 Personal Injury Protection (PIP)

C. Bad Faith

§2:160 Duty of Good Faith and Fair Dealing

§2:161 The Bad Faith Cause of Action

§2:162 Document Delays and Unfair Dealing

§2:163 Failure to Settle for Policy Limits

§2:164 When Representing Plaintiffs

§2:165 When Representing Defendants

§2:166 Punitive Damages Cannot Be Excessive

MOTOR VEHICLE

ACCIDENT CASES

2-3 Motor Vehicle Accident and Other Personal Injury Cases

VII. SETTLING THE CASE

A. Types of Settlements

§2:180 Cash (Lump Sum)

§2:181 Structured Settlements

§2:182 Tax Implications

B. Working with the Client

§2:190 Client’s Refusal to Settle

§2:191 Capacity and Authority

§2:192 Settlement with Minors or Incompetents

C. The Settlement Agreement

§2:200 Review the File and Procedures

§2:201 Settlement Agreement as a Contract

§2:202 Consideration

§2:203 Writing and Filing Requirements

§2:204 Mary Carter Agreements Are Void

§2:205 Release

D. Third Parties

§2:210 Subrogation Claims

§2:211 Tax Consequences

§2:212 Paying the Bills

VIII. DISCOVERY

§2:220 Comply with Requests You Receive

§2:221 Informal Discovery and Request for Disclosure

§2:222 Interrogatories, Production and Admissions

§2:223 Documents and Physical Exams

§2:224 Depositions

IX. ARBITRATION AND TRIAL

§2:230 Arbitration

§2:231 Trial Preparation

§2:232 Opening Statement

§2:233 The Physician as Witness

§2:234 Admission of Expert Testimony

§2:235 Evidence of Settlement Offers

§2:236 Post-Accident/Incident Surveillance Evidence

§2:237 Accident/Incident Surveillance Evidence

§2:238 Admissibility of a Traff‌ic Citation

§2:239 Perjury for Underreported Income

§2:240 Collateral Source Rule

§2:241 Closing Argument

§2:242 Verdict

FORMS

Form 2:10 Procedures—Telephone Intake

Form 2:20 Questionnaire: Basic Case

Form 2:30 Questionnaire: Complex Case

Form 2:40 Interview

Form 2:50 Declining to Continue Representation—No Insurance or Assets

Form 2:60 Declining Representation—No Personal Injury and Only Property Damage

Form 2:70 Declining Representation—No Liability

Form 2:80 Contract for Employment

Form 2:90 Statement of Client’s Rights

Form 2:100 Medical and Employment Records Release