The In’s and Out’s of a Personal Injury Case in Tampa
If you have been involved in an motor vehicle accident and have subsequently sustained injuries, you’re going to get medical treatment. After a certain point, your physician will say you have reached what we call maximum medical improvement. In other words, from the time of the accident, you were improving, and all at once you plateaued. You’re not getting any worse, you’re not getting any better; you’ve reached what we call MMI, Maximum Medical Improvement. It is usually at that time that a claim package will be put together called a settlement demand letter.
1. Steps in a Personal Injury Case
The attorney will put together a narrative that explains usually to the insurance company for the at-fault party what happened in the accident, what damages you suffered both in terms of your injury, in terms of its effect on you – the medical bills, the wage loss, your non-economic damages – it’ll talk about the property damage of the vehicles that were involved. Generally, that settlement demand letter will go out to the at fault party’s insurance company with a deadline, usually 30 days. You’re asking them to amicably resolve the case within that 30-day period. If for whatever reason, you’re not able to amicably resolve it – let’s say that the insurance company says we just don’t see the liability here; we don’t think our guy’s at fault, or they say we don’t think your person’s injured as badly as his doctors say they are.
Insurance companies generally fight these cases in three ways. The first way is they say the accident wasn’t our fault. The second way they defend it is they say well, the accident may have been our fault to some extent or maybe totally, but the impact from the accident wasn’t great enough that anybody could’ve been injured. The third way they defend these cases is they say well, the accident might’ve been our fault, maybe totally our fault, the impact was great enough that someone could’ve been injured, but your client’s injuries are pre-existing; they’re from the other two accidents they had from another slip and fall case, or they’re what we call degenerative based on their age. In other words, it’s from wear and tear on their body, not from the trauma from this accident.
Generally, that’s how insurance companies defend these cases, so if you cannot amicably resolve your case for whatever reason, then suit has to be filed. Once suit is filed, generally a complaint is filed with the court, service is made on the at fault party, and their insurance company retains an attorney and comes in and defends them. They have to file what’s called an answer, in other words, either admit or deny your allegations in the complaint, and they file an affirmative defense, things like you weren’t wearing your seatbelt, you were at fault for the accident yourself, at least wholly or in part, that you had pre-existing conditions. Your attorney will answer those affirmative defenses, and the case at that point in time will be at issue.
At that point in time, the case moves into what we call discovery, where they can ask you questions called interrogatories. You have to answer them. They can ask for documents in what’s called a request to produce. They can ask for medical records, medical bills, photographs of the vehicles and things like that. They can also take your deposition and they can ask you to be examined by a doctor of their choosing in what’s called a compulsory medical examination.
After all this discovery is done, you then will go to a mediation to try and resolve your case amicably, and if your case cannot be resolved amicably, then your case is placed on a trial list, and it’s tried.
One of the things that’s important to remember in this whole process is generally the plaintiff’s attorney is paid based on results, while the defense attorney is paid by the amount of time that he puts into the case, so sometimes we hear that the mantra of the defense lawyer is delay, delay, delay. Depending on the complexity of your case, you’re probably looking at a minimum of a year before the case actually reaches trial. Keep in mind, if you go to trial and you get a good result, maybe a result that the at fault party’s insurance company thinks is too good, they can always take an appeal, and that can tie your case up for at least two years into the future. It’s a very difficult time question to ask how long will it take for my claim to reach fruition.
- Once your recovery and healing has plateaued, your attorney will present the at-fault party’s insurance company with your damages, and ask them to settle amicably in 30 days.
- If the case cannot be settled amicably, a suit will have to be filed.
2. How to Select a Personal Injury Attorney
If I was looking for a personal injury lawyer, the first thing I would do is look to that person’s experience in the area that you expect the case to be in. For example, if it’s a motor vehicle case, you want to have an attorney that has handled motor vehicle accidents, has had experience handling motor vehicle accidents, and has been to trial trying motor vehicle accident cases.
You want a firm that’s large enough that they can adequately fund your case if you need an expert. For example, either on the liability end, some engineer to talk about why this accident and this injury occurred, and also on the medical end to bring your doctors to trial or to take their depositions by videotape to be presented to the jury at trial. These experts, both mechanical or engineering and medical, are very expensive, so the law firm has to be able to have the financial wherewithal, not just the experience, to support the bills that are going to be occurred in getting your case, if needed, to trial.
You need to pick out an attorney with a temperament personality that you can get along with because it’s very important that the attorney and the client are able to communicate with another and to work with one another. This is because this is a fairly involved and sometimes long procedure from the time of an accident until the time that a trial, if it’s needed, is concluded.
You’re really looking for someone with experience – sometimes also you need to look at the undergraduate degree. If this is going to be an area where there’s an engineering issue, you may want someone that has an engineering undergraduate degree. You also need to make sure that the law firm is adequately funded, that they can take these cases to trial. You want to know about whether or not they do go to trial because many attorneys will advertise and hold themselves out as trial lawyers and they don’t go to trial. They settle everything. If you get with a law firm that settles everything, over time the insurance companies know who these law firms are, and they throw them crumbs so to speak knowing that they are not the hammer that will take them to trial. You need to go with a law firm that has the ability, and the history, and the financial wherewithal to take your case to trial in case it needs to be tried. Those are some of the things that I would look for if I was picking a personal injury lawyer for a personal injury claim.
- Always ensure you have done your own independent research before picking a personal injury attorney.
- The personal injury attorney you pick should have experience successfully tackling personal injury cases relevant to yours.
3. How Long You Have to File a Claim
For most personal injury claims, you have four years from the date of the event within which to pursue a claim. There are exceptions to that. For example, if you are injured in a motor vehicle accident or a collision and the adverse driver has no coverage but you have underinsured or uninsured motorist coverage, you have five years to bring that claim against your insurance company because that’s a contractual claim. Medical malpractice claims, which are also considered personal injury claims, there’s a two-year statute of limitations from the time that you knew or reasonably should have known. The same in product liability; claims are four years.
- Generally, you have 4 years from the date of the event within which you must file a claim.
- Motor vehicle accidents, product liability and medical malpractice may be exceptions to that rule.
Dealing with an at-fault party’s insurance company can be an incredibly nerve-wracking and stressful. Contact the law office of Morgenstern & Herd, Tampa’s experienced injury attorneys.