South Florida Injury Lawyer Blog

As South Florida PIP lawyers we understand the difficulty medical practitioners are going through. We understand that the new PIP laws are causing anxiety and uncertainty. Many practitioners are pondering what to do and if they will be able to keep their practice open. The Florida legislature has given little time for businesses in the PIP field to adapt. Similar laws have taken years to take effect in the past. They usually gives people or corporations in the industry time to adapt and prepare for the new changes. This courtesy was not granted here.

We have received numerous calls regarding the date in which the new Florida PIP law takes effect. Certain parts of the law take effect January 1, 2013 and others on July 1, 2012. Either way, change is coming fast.

On July 12, 2012 the following provisions take effect:

[A]n insurer may limit payment as authorized by this paragraph only if the insurance policy includes a notice at the time of issuance or renewal that the insurer may limit payment pursuant to the schedule of charges specified in this paragraph. A policy form approved by the office satisfies this requirement.

So what does this mean in practice? Here we are talking about fee schedules. The schedules refer to a list of maximum fees for providers who work on a fee-for-service basis. Insurance companies can use, "Medicare coding policies and payments methodologies of the federal centers for Medicare and Medicaid services, including applicable modifiers, to determine the appropriate amount of reimbursement for medical services..." In other words, Insurance companies will be able to apply fee schedule reductions as of July 12, 2012. Some companies like Progressive and Geico may be bound to 80% of bills due to limitations imposed by their policies. However, these limitations may become moot on January 1, 2013.

All other pertinent parts of the new Florida PIP law take effect on January 13, 2012. This includes issues pertaining to the new emergency medical condition (emc) standard discussed in previous blogs. These are the most troublesome sections of this law. Although, allowing insurance companies to apply Medicare and Medicaid payment standards can be troublesome as well. This essentially will incorporate a public assistance standard on private industry. This is surprising coming from many legislators who vociferate the importance of private industry and less intrusion by the government.

Other sections that will take effect on January 1, 2013 include matters of initial care. We are referring to the section requiring a patient to seek care within fourteen (14) days or risk losing his right to seek benefits under his policy. Sections excluding massage therapy and acupuncture will also take effect on January 1, 2013. For more detailed discussion of the new standards taking effect in January 1, 2012 please see previous blogs.

As of now, the Governor has not yet signed the New Florida PIP standards into law. It almost certain he will do so as he was the main driving force behind these changes. His intention was to reduce fraud and reduce premiums for Florida policy holders. We hope that these goals are attained by this new law. However, as South Florida car accident attorneys we are concerned with the rights policy holders and medical providers have lost.

If diminished rights means lower premiums, then perhaps this is not a bad outcome. However, the lowering of premiums is not a guarantee. It is true that PIP premiums are high in Florida. Certainly, fraud has had an effect on premiums. Nonetheless, the rise in premiums is almost certainly also a result of the downturn in the economy. Insurance companies make profits by investing premiums. If their investments are unsuccessful, then a rise in premiums will result. Insurance companies tend lower premiums when the economy is doing well. This provides the insurance companies with more funds to invest.

Miami personal injury attorneys are here to assist you 24/7. We can be reached at 305.764.9907 or 1.888.413.8353.

As South Florida PIP lawyers we understand the concerns chiropractors have about the recent laws passed by the legislature. We have received numerous calls asking for a breakdown of the new standards. Here we will address the new standards as it pertains particularly to chiropractors. In order to analyze the effect of the new pip law on chiropractors it we look to the pertinent language;

"Reimbursement for services and care...up to $10,000 if a physician licensed under chapter 458 or chapter 459, a dentist licensed under chapter 466, a physician assistant licensed under chapter 458 or 459, or an advanced registered nurse practitioner licensed under chapter 464 has determined that the injured person had an emergency medical condition. Reimbursement for services and care...is limited to $2,500 if any provider...determines that the injured person did not have an emergency medical condition."

It is very clear from the above language that a chiropractor cannot diagnose an emergency medical condition and thus will be limited to $2,500 in reimbursements for services provided. It is hard to see what the rationale is or why chiropractors are being affected disproportionately. After all, a chiropractor is just as able to diagnose an emergency medical condition as a medical doctor, physician assistant, or advanced nurse practitioner.

The effect of this new Florida pip law is that many chiropractors will downsize their practices or close them altogether. Many jobs will be lost as a result of this law. Whether any benefit will come to citizens of Florida remains to be seen. This new PIP law was passed with the condition that insurance companies first reduce their rates by 10% and then 25%. However, insurance companies will not be obligated to reduce rates if they can show that it is not financially feasible. Thus, the result will most likely be that Florida citizens lose jobs and their insurance rates will remain the same or even rise.

There are ways in which chiropractors may be able to charge up to $10,000 through their practice. We are endeavoring toward perfecting these mechanisms and will provide services along those lines for chiropractors. We are also endeavoring along with physicians to provide appropriate forms and protocols for the new emergency medical condition (emc) standard. These will be available shortly.

As Miami pip attorneys we understand that things may seem dire for a chiropractor reading this blog. In fact, we have seen a few chiropractic offices close altogether. It is our impression that such rapid actions are not wise. As mentioned above there are still possibilities by which a chiropractor can bill up to $10,000. Furthermore, the validity of these new PIP standards may be in question and will surely be tested in court. In fact, there may be constitutional issues in question.

Equal protection under the law is guaranteed under the Florida and Federal constitution. Section 2 of the Florida Constitution states:

"Basic rights.--All natural persons, female and male alike, are equal before the law and have Inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property; except that the ownership, inheritance, disposition and possession of real property by aliens ineligible for citizenship may be regulated or prohibited by law. No person shall be deprived of any right because of race, religion, national origin, or physical disability."

The question here will be whether the new PIP standards will affect a chiropractor's fundamental rights. Indeed, there is a case on point. In Dan Ray Warren v. Statefarm Mutual Automobile Insurance company, a chiropractor alleged that Florida Statute 627.736(5)(b) denied, "'equal protection under the Florida Constitution to [chiropractors and other health care providers] by differentiating [their] bills from hospital and ambulance bills." 899 So.2d 1090 (Fla. Supreme Court, 2005). To clarify, Florida Statute 627.736(5)(b) states that providers have no duty to pay for treatments that were rendered more than 30 days after postmark date. This same requirement was not applied to hospitals or ambulances.

Here the Supreme Court of Florida determined that different billing standards and deadlines did not constitute a fundamental right and chiropractors and other health care providers did no fall into a suspect class. By suspect class one refers to race, nationally, gender, etc. In other words, it did not seem to be law aimed at a particular group of people. This is a law that appears neutral on its face. The Court then reasoned that,

"[a] constitutional equal protection challenge to a statute that does not involve a fundamental right or suspect classification is evaluated by the rational relationship test...Under this test, a court must uphold a statute if the classification bears a rational relationship to a legitimate governmental objective. Our analysis in this case is governed by the rational relationship test because section 627.736(5)(b) does not implicate a fundamental right, nor do the petitioners claim to constitute a suspect class or claim that a fundamental right is at stake." Id at 1095.

Here the Florida Supreme Court came to the conclusion that billing standards did not entail any sort of fundamental right or issue triggering a higher scrutiny. Thus, the Florida Supreme Court upheld the law.

However, the current situation seems to be different. There is an argument that caps imposed on chiropractors may indeed entail an issue relating to a fundamental right. We are referring to the right "to be rewarded for industry." Why should a chiropractor or health care facility be limited as to the amount they may be able to bill an insurance company? On its face, the counter argument is that one is not prejudicing chiropractors or distinguishing between anybody. The new pip standard places caps based on whether an emergency medical condition is present. Nonetheless, one has to look at who can make this determination and it is quite apparent that chiropractors have been left out of the list.

If the courts determine that there is fundamental right in question they will apply a strict scrutiny standard. This would mean that the government would have to show that a compelling interest exists to justify the policy. This standard is very hard to meet and in many cases leads to the nullity of laws and standards passed by governments.

Our view is that a fundamental right is a stake here. This relates to ability of chiropractors and their employees to make a living and enjoy the fruits of their labor. Few things are more fundamental than that.

Continue reading "How Will the New Personal Injury Protection (PIP) Law Affect Chiropractors in Florida" »

Many policy holders, medical practitioners, chiropractors, and medical institutions are concerned about the new standards imposed on PIP in Florida. We have written a previous blog on the matter, but one blog is not sufficient to fully explore the issue. Thus, our goal here is to expand our analysis as it pertains to the definition of an emergency medical condition.

The new PIP standard defines emergency medical condition as, "acute symptoms of sufficient severity, which may include severe pain, such that the absence of immediate medical attention could reasonably be expected to result in any of the following: (a) Serious Jeopardy to the patient health.(b) Serious impairment to bodily functions.(c) Serious dysfunction of any bodily organ or part." It would seem that the key factor in determining whether an emergency medical condition exists is the detection of acute symptoms. Without finding of acute symptoms an emergency medical condition is unlikely.

Fortunately, there are cases that provide some guidance as to the definition of an acute symptoms. For example one court provides, "[a]n acute symptom is a symptom 'characterized by sharpness or severity...having a sudden onset, sharp rise, and short course...[as] opposed to chronic.' Moreover, as a verb, 'manifest' means 'to show plainly.' ...[T]he acute indications of injury or illness must coincide in time with the emergency medical condition." Grennery Rehabilitation Group, Inc. v. Hammon, 150 F.3d 226 (2nd Circuite, 1998).

As car accident attorneys in Miami we understand that back injuries are common as a result of vehicular impacts. Therefore, back injuries will result as a good example to in application of the acute symptom analysis. The following are common in relation to acute spinal cord injuries:

• Muscle Weakness
• Loss of voluntary muscle movement in the chest, arms, or legs,
• Breathing problems
• Loss of feeling in the chest, arms, or legs
• Loss of bowel and bladder function

Thus, if a patient complains of back pain and is combined with any of the symptoms above, then the most likely outcome is that the emergency medical condition standard would be met. For the most part, medical practitioners agree that emergency medical attention is needed if there is an inkling of a spinal cord injury. Medical practitioners should then be able to follow up their initial determination of an emergency medical condition with tests such as x-rays and MRI's. These should be covered under the new PIP standard under the emergency medical condition standard and perhaps trigger $10,000 for continuing care and rehabilitation. A similar analysis should apply to other types of injuries.

As we explained on previous blogs, much remains to be seen as it relates the new PIP standards. As South Florida PIP attorneys we understand the difficulties and uncertainty this has caused health care providers. There is no doubt that many businesses and jobs will be affected by these changes.

Continue reading "What is Considered an Acute Symptom as it Pertains to an Emergency Medical Condition Standard in the New Florida Personal Injury Protection (PIP) Law?" »

Recently the Florida legislature passed standards regulating PIP coverage in the state of Florida. Many attorneys, policy holders, chiropractors, and medical doctors have been trying to make sense of these new standards. As Miami car accident attorneys we understand that new laws and standards produce anxiety and uncertainty. This is augmented due to the fact that all drivers in the State are affected by these changes.

One of the major causes of uncertainty relates to the term emergency medical condition. The new PIP standards define emergency medical condition in the following manner; "acute symptoms of sufficient severity, which may include severe pain, such that the absence of immediate medical attention could reasonably be expected to result in any of the following: (a) Serious Jeopardy to the patient health.(b) Serious impairment to bodily functions.(c) Serious dysfunction of any bodily organ or part." This standard seems to be taken from the Emergency Medical and Active Labor Act (EMTALA) which can be found at 42 U.S.C. 1395d.

EMTALA is meant to induce hospitals emergency rooms to treat individual who have emergencies regardless of whether they have benefits. If a hospital emergency room determines that an emergency medical condition exists, then it would be required to stabilize the patient. The important thing to note here is the standard provided by EMTALA is almost always applied in emergency room situations. Indeed, the Florida lower chamber's early drafts of the law stated that an emergency medical condition could only be diagnosed in a hospital. The language in an early version of HB119 stated, "[t]he medical diagnosis and the determination of an emergency medical condition shall be rendered in a hospital." This may be evidence showing that the Florida legislature has a different concept for the application of the definition of emergency medical condition for private practitioners and clinics.

The final version of the new PIP law states that, reimbursement can be "up to $10,000 if a physician licensed under chapter 458 or chapter 459, a dentist licensed under chapter 466, a physician assistant licensed under chapter 458 or chapter 459, or an advanced registered nurse practitioner licensed under chapter 464 has determined that the injured person had an emergency medical condition." Reimbursement is limited to $2,500 if it is determined that an emergency medical condition is not present. The fact that an emergency medical condition diagnosis need not be made at a hospital says volumes about the intent of the legislature.

As mentioned before, most if not all statutory interpretation of the Emergency Medical Condition standards are applied to emergency room situations. An example of such a case is Correa v. Hospital San Francisco, 69 F.3d 1184 (Court of appeals, 1st Circuit 1995). In this case an elderly patient is taken to a hospital complaining of chest pain, but is ultimately ignored. This ultimately leads the patient to expire. The court determined that a hospital has a duty to provide an appropriate medical screening and if an emergency medical condition exists, then the hospital has a duty to stabilize the patient. In another case, the court stated that EMTALA was enacted "in the mid-1980s based on concerns that, due to economic constraints, hospitals either refusing to treat certain emergency room patients or transferring them to other institutions." Torretti v. Main Line Hospitals, Inc. 580. F3d 160 (Court of Appeals, 3rd Circuit 2009). The plaintiff in most of these cases is trying to show that the hospital or health care facility owed a duty of care which the institution failed to provide. In other words, much of this case law deals with negligence or question of malpractice rather than questions of coverage. Thus, much is of the case law out there may not be directly applicable to PIP coverage analysis.

Indeed, the major concern for readers of this blog is coverage and payment up to $10,000 for PIP benefits. For the insured to be provided adequate treatment it would be preferable that the standard for an emergency medical condition be lax. Otherwise, a Florida PIP policy holder would be limited to $2,500 in benefits. The Arizona Supreme Court addressed the issue of coverage in Scottsdale Healthcare, Inc. v. Arizona Health Care Cost Containment System, 75 P.3d 91 (2003). ). In this case there was no dispute as to the emergency medical condition. As the Court noted, "[t]he question is] whether...at the time [of the transfer of the patients] ...each still suffered from an 'emergency medical condition'..." The court goes on to say that the "statute requires that the medical condition manifest itself by 'an acute symptom (including severe pain).'" The court further explains, "[t]he statute mandates that AHCCS must cover services for treatment of that condition so long as absence of immediate treatment for that condition could reasonably result in" serious jeopardy, serious impairment, or serious dysfunction to patient health. It is helpful for healthcare providers that severe pain is considered an acute symptom by many courts analyzing the definition of emergency medical condition.

As PIP attorneys in Florida we understand that these changes are producing anxiety and concern among health care providers in the State. Other blogs will be dedicated to what constitutes an emergency medical condition. This is only a preliminary blog. Other blogs will address what constitutes an acute symptom and whether subsequent treatment due to an emergency medical condition can be reimbursed up to $10,000. Also, we will address the effect of this new PIP standard on chiropractors.

We want to note that this new standard will most likely create substantial litigation. Ultimately, it is likely that courts will determine that whether an emergency medical condition exists is matter of fact that should be decided by a jury. If this ends up being the case, then it will be beneficial to policy holders and providers. Extended litigation will make it economically restrictive for insurance companies to contest the issue.

Continue reading "What is Considered an Emergency Medical Condition Under the New Personal Injury Protection Coverage (PIP) laws in Florida" »

Last Friday night the Florida legislature passed new standards as it pertains to Chapter 627 of the Florida Statutes. As expected these changes have created a sentiment of uneasiness among Florida PIP policy holders and medical providers. This uneasiness has been augmented by interpretations of the new standards by media. In many cases these interpretations are wrong or incomplete. This is to be expected as statutory interpretation (especially done under the deadlines imposed on journalists) is for the most part a complex matter. Furthermore, interpretations by the media tend to be oversimplified. Thus, our goal here is to provide an in depth analysis of the new 2012 PIP standards. To that end, we include here a link to the Florida PIP reforms passed on Friday, March 9, 2012.

Being South Florida car accident attorneys we have dealt with the issue of PIP on numerous other blogs. In those blogs we explained that PIP stands for personal injury protection. PIP is an insurance coverage that covers up to $10,000 of medical costs due to a car accident regardless of fault. For the most part, this still remains true. As Miami PIP attorneys we understand that this is a very important issue to medical providers and thus will address it first.

An insurance company must provide $10,000 in medical and disability benefits and $5,000 in death benefits resulting from injury as a result of ownership of a motor vehicle. The $5000 in death benefits are in addition to the medical and disability benefits provided under the insurance policy. The insurance company must provide coverage for 80% of all reasonable medical expenses as long as the individual receives initial services and care within fourteen (14) days after motor vehicle accident. Initial services can be provided by a medical doctor, dentist, chiropractic physician, or hospital, or hospital owned facility.

Reimbursements for services by the above is limited to up $10,000 if a physician, dentist, physician assistant, or advanced registered nurse practitioner, has determined that the injured person had an emergency medical condition. What should be noted here is that chiropractors are not on this list. This means that chiropractic physicians will not be eligible to bill up to $10,000 for medical emergency conditions. If a medical doctor, chiropractic physician, physician assistant, or advanced nurse practitioner, determines that the accident did not result in an emergency medical condition, then reimbursements are limited to $2,500.

This begs the question of what is an emergency medical condition. According to the new standard an emergency medical condition means, "acute symptoms of sufficient severity, which may include severe pain, such that the absence of immediate medical attention could reasonably be expected to result in any of the following:

(a) Serious Jeopardy to the patient health.
(b) Serious impairment to bodily functions.
(c) Serious dysfunction of any bodily organ or part."

This definition is vague to say the least. Insurance companies will probably disagree with physicians as to what constitutes an emergency medical condition. This may lead to litigation in order to define the term. Ultimately, it may end up being a question for a jury to determine. However, it should be noted that the best person to make this determination is the examining physician. The physician who examines the injury closest in time to the accident will be best suited to determine whether it amounts to an emergency medical condition. It will be difficult to undermine these initial evaluations as they are related to the observations of the physician in that particular instance.

PIP medical benefits will not be extended to massage therapy or acupuncture regardless of whether an emergency medical condition is involved. It should be noted that an insurance company does not have to amend any policies in order for any of these changes to become effective. They are also not required to notify providers, or claimants, of such changes. The above mentioned changes will take effect on January 1, 2013.

Another area that will be affected by changes to the PIP statute is examinations under oath ("EUO"). An EUO Is a post loss requirement that may be a precondition to receiving PIP coverage. During an EUO the insurance company may ask an insured questions that are relevant to the loss. The new standard states; "the scope of questioning during an examination under oath is limited to relevant information or information that could reasonably be expected to lead to relevant information. Compliance with this...is a condition precedent to receiving benefits." However, the insurance company must have a reasonable basis to take an EUO. Thus, they don't have a carte blanche as it pertains to taking an EOU. Nonetheless, it should be noted that "[a]n insured's refusal to submit to or failure to appear at two (2) examinations raises a rebuttable presumption that the insured's refusal or failure was unreasonable." In other words, if an insured fails to show up to two EUOs he must be able to show good cause for doing so.

The above covers most of import issues addressed in the new pip legislation. However, there are other points that should be covered that address questions regulating medical providers. These will be addressed with more specificity in another blog.

Continue reading "New Florida Personal Injury Protection (PIP) Standards Passed in 2012 " »

As Miami homeowner's claims attorneys we often get asked about our fees. Often the question of attorney's fees is also related to the question of an adjuster's fees. Before many homeowners hire an attorney they tend to hire public adjusters. Public adjusters evaluate the loss to the home or property and submit a claim to the homeowner's insurance company. On many occasions, claims prepared by public adjusters are denied. Indeed, if the claim is denied the only recourse left to the homeowner is to hire an attorney to further pursue the matter. So at this point a homeowner is subject to both attorney's fees and adjuster's fees.

We are often asked what fees public adjusters are entitled to. Adjusters usually charge between 10% and 20% contingency fees. According to Florida Statute 626.854 a public adjuster cannot charge more than 20% contingency on non-emergency claims and no more than 10% on claims related to a declaration of emergency event. Events that may count as emergencies are hurricanes, tornadoes, earthquakes, tsunamis, etc.

Nonetheless, this will be better explained by an example. An adjuster signs up a new client who had a water loss and agrees to pursue the claim for 20% contingency . The adjuster fails to get any compensation for his client. The client is now obliged to go and hire an attorney. Six month later the attorney settles the case for $50,000 on the client's behalf. The attorney agrees that $40,000 will go toward the water loss and $10,000 will go toward attorney's fees. Here the adjuster would be entitled to 20% of $40,000. The adjuster would not be entitled to 20% of the attorney's fees. It goes without saying that adjusters are often not happy with such results. As South Florida homeowner's water loss claims attorneys we are well aware of this.

Be sure to ask questions to both your adjuster and attorney as it pertains to contingency fees. In some instances it may be wise to make a flat fee agreement with your adjuster. This is more true when dealing with large claims that are the result of fire or catastrophic events. The issues of fees may get more complicated when dealing with appraisals. An appraisal is a process by which an insurance company and the insured try to agree on the proper amount to compensate a claim. However, this is topic for another blog and we will not address it here.

Continue reading "Florida Homeowner's Insurance Claims and Attorney's Fees" »

Looking at the title of this blog it would seem that it is about car accidents. However, as accident attorneys in South Florida we understand that this also applies to other sorts of accidents like slip and falls. It is imperative to document the accident at the scene. This may be difficult because of the physical and emotional force of an impact. Nevertheless, it is imperative to remain at the scene and have the proper authorities document the accident. If it's a car accident, then the proper authority is the police. If we are talking about a slip and fall, then ask for a manager or an employee to document the incident. If there is no one to document the incident and you are in need of assistance, the EMS (Emergency Medical Services) can document the location and the time of the incident. This will most likely not be as complete as a police report.

If for some reason you cannot reach the police or a manager at the scene of an accident, then it is important to try to take as many pictures as you can. If you cannot take pictures then ask a relative, friend, or a person in the vicinity to do so. Furthermore, take the names of any witnesses in the area that may help document the circumstances of the accident.

It is difficult for an attorney to show that something happened when there is no documentation or report detailing the accident. In some locations there may be video cameras that may record the incident. This is often the case in super markets and other commercial locations like restaurants and convenience stores. However, do not rely on this to establish or document that an accident took place. A camera may have an inadequate point or insufficient resolution. As slip and fall attorneys in Miami we have encountered these sort of problems with cameras. Furthermore, there is no guarantee that a tape of the incident will be accessible.

Another reason why one should stay at the scene of an accident is because it is a requirement under Florida law. Under Florida Statute 316.061 it is a misdemeanor to leave the scene of a car accident. Florida Statute 316.061 requires that;

1) you stop at the scene of the accident or as close to the scene of the accident as possible,
2) and do your best not to interrupt the flow of traffic.
If an accident involves injury or death then Florida Statute 316.062 also applies. Florida Statute 316.062 requires that;
1) Name, address, vehicle registration number, be provided to other party involved in accident and also any police officer at the scene. It also requires that you exhibit your driver license upon request and,
2) provide reasonable assistance to an injured party. This includes making arrangements to carry injured person to a hospital or physician if it is apparent that treatment is necessary, or if the injured party requests it.

It should be noted here that leaving the scene of an accident where a death or serious injury involves is a felony under Florida Statute 316.027.

Continue reading "Never Leave the Scene of an Accident in Florida " »

As Miami-Dade car accident attorneys we understand the dangers of driving in South Florida. Traffic is hectic and drivers can be aggressive, careless, and reckless. Below are some of the major causes of car accidents in South Florida:

1) Distracted driving. The National Highway Traffic Safety Administration (NHTSA) estimates that some 80 % of car accidents result from distracted driving. Some common distractions include text messaging, eating, putting on makeup, and talking on the cell phone.
2) Speeding. Driving beyond the speed limit may make it more difficult to react in time. There is a reason for the speed limit allocated to a certain road or highway.
3) Drunk Driving. When driving a vehicle it is necessary to be in full control. Intoxication compromises the ability to evaluate and react to situations on the road.
4) Reckless Driving. These are drivers who take unnecessary risks on the road because they are impatient, in a hurry, or just plain careless. It is important to always keep your eyes open for this sort of driver.
5) Rain. Many people drive in the rain like they would on any other occasion. However, the rain may produce slippery conditions on the road. Also, it may limit visibility as it often does in South Florida and on many occasions without warning. If it is raining it is important that you drive extra carefully, watch vehicles around you, and keep a safe distance from other vehicles.
6) Running a red Light and Running a Stop Sign. Running a light or stop side can cause side-impact which can be catastrophic. It is imperative to treat intersections with extreme caution.

Our main concern here is with distracted driving for obvious reasons. No doubt it is the main cause of most vehicular accidents on the road today. It is probably so because it is the tendency of the mind to get distracted by billboards, sights on the road, the radio, and even our own thoughts. Also, driving becomes a second nature sort of activity. This is very true in South Florida where people spend a lot of time commuting. It is almost as if we are on auto pilot. But make no mistake about it, there is no auto pilot.

The nature of the problem is more complicated now with cell phones, texting, ipads, ipods, and other gadgets. People feel like they need to be productive and multitask. They don't want to waste their time just driving. As South Florida accident attorneys we know that this is the sort of attitude that leads to accidents. It is important to remember that car travel at great velocities and have tremendous mass. The vehicles we drive are not machines to be taken lightly. They are a responsibility each drivers bears and thus it is important to drive keeping that in mind.

One of the big problems in Florida is the amount of serious accidents that are caused by texting and talking on a cell phone while driving. The legislature is so concerned about it that some members such as Rep. Irv Slosberg are trying to pass legislation to regulate it. Rep. Irv Slosberg has suggested that minors should not be using a cellphone while they are driving. Senate Bill 416 proposes to impose fines on those who text and drive. Some thirty-five (35) states have passed laws limiting texting in some form or another.

From a practical point it may be difficult to enforce these laws. So it remains to be determined how effective they will be if ever enacted in Florida. Nonetheless, this is more an issue of education than passing a law. This sort of education could be instituted through the Florida Department of Motor Vehicles, high schools, and even colleges. It is better to create a culture of safety, rather than pass laws which may be difficult to enforce.

Continue reading "Texting and Driving and Accidents in South Florida" »

In previous blogs we have written on the subject of PIP at length.
PIP is an insurance coverage that is required by the State of Florida.
This means that when you buy car insurance you must buy this sort of
coverage. The state requires that you purchase at least $10,000 in PIP
coverage. This $10,000 is meant to be used toward your own medical
expenses regardless of fault. Indeed, this is why it is called a
no-fault benefit. Meaning that these $10,000 should be used toward
your medical treatment even if you are not at fault.

As a side note, PIP coverage is being debated both in Tallahassee and
in the media. Insurance companies are debating that PIP policies are
no longer profitable and are a burden to their companies and profit
margins. Some groups and Florida citizens are arguing that the PIP is
driving up the cost of car insurance and that it should be done away
with due to the harsh economic climate. As South Florida motorcycle
accident attorneys we understand the importance of PIP benefits. We
don't want to expand on this debate right now, but Florida drivers
should have this minimal protection. If the insurance companies have
their way many Florida drivers will have to pay medical expenses out
of pocket and still have to pay their insurance premiums. Meaning that
insurance will bear all the benefits and little of the risk.
Nevertheless, we leave this for another blog.

The purpose of this blog is to deal with PIP coverage as it pertains
to motorcycles, bicycles, and pedestrians in Florida. Florida law does
not require that motorcyclist carry PIP coverage. Although, a
motorcyclist may buy a special PIP coverage. If you own a motorcycle
we recommend that you buy adequate PIP coverage even though it is not
required by the State. As Miami-Dade Motorcycle accident attorneys we
understand the dangers of driving without proper coverage. It should
be noted that your car insurance will not extend its PIP coverage to a
motorcycle accident. Insurance policies generally have an exclusion to
this effect. This leaves motorcyclist at a great disadvantage.
Injuries to motorcyclist are generally much more severe than those
involved in car accidents.

PIP coverage for your car will apply if you are involved in a bicycle
accident. If you do not have a car, then the policy attached to
another vehicle at the property may apply. If neither of these is
available, then the policy of the person who caused the accident may
apply. The same principal applies to pedestrians.

Of course, the simplest way to deal with these issues is to buy adequate
coverage. If you own a motorcycle ask your insurance agent about
getting the appropriate PIP coverage. If you own a motorcycle and
don't have this sort of coverage, then it would be wise to stop
driving until you have adequate protection. This would also include
UM or uninsured or underinsured motorist coverage. This policy comes
in handy if the person who caused the accident has no insurance.

Continue reading "Personal Injury Protection and Motorcycle, Bicycle, and Pedestrian Accidents in Florida " »

As a South Florida car accident attorney I know that many people do not think of hiring a lawyer right after their accident. In fact, I know that many people in Miami would not even think of it. Many people distrust attorneys (accident or personal injury lawyers especially). After all, terms like ambulance chaser are not very endearing. Also, referral companies are saturating the airwaves and billboards with tasteless and deceiving advertisements. Indeed, man y of these advertisements are revolting to myself and I can see how they create a negative light on attorneys practicing personal injury law.

If you are going to use a referral service to find an attorney it is best to look to the Miami-Dade Bar Association, the Broward Bar Association, or any other genuine bar association. The referral services that are saturating the airwaves are mostly focused on the PIP part of the claim. That is, they are after the $10,000 of your no fault medical benefits. The referral service will quickly assign you to a treatment or chiropractic in order to bill your insurance company for these benefits. Sending you to an attorney is almost a secondary function. Genuine referral services like the Miami-Dade Bar Association will focus on finding the best attorney for your situation. Your attorney will help you find a place to treat your injuries if you have not done so.

A reason to be careful with these referral services is that they may send you to clinics that do not genuinely care about your treatment. They may just focus on billing out your PIP and not bother to send you out to get a MRI to quantify and analyze your injuries. The result then is that you end up with a subjective final report from a chiropractor or an M.D. with no objective data to back it up. As Miami-Dade car accident attorneys we understand that the value is greatly reduced if there is no objective data to back it up

I explained where it is wise to find an attorney, but I have not explained why you should find one right after an accident. In short, if you do not hire an attorney the insurance companies will most like take advantage of the situation. For example, I have seen people sign waivers for $500 for bodily injury not knowing what it was or meant. Their injuries were serious and could have commanded policy limits. Why did this happen? Because these individuals did not hire an attorney right after the accident.

In some cases insurance companies want to settle the claim right away. This usually happens when there are many victims and a limited policy. In these cases the insurance company usually requests a mediation. A mediation is a process in which all parties try to settle the matter. If you do not have an attorney present at the mediation the most likely result is that you will receive a minimal amount when compared to the parties that brought an attorney . I have seen this happen many times to individuals who did not hire an attorney or failed to show up to a mediation.

Another reason you should hire an attorney right after an accident is that they will stop the insurance company from contacting you directly. This is beneficial because you do not want to say things that are detrimental to your case.

To summarize, it is imperative to contact an attorney after the claim. This is beneficial because an attorney will make sure to contact the insurance company and relay that there is an attorney on the case. The attorney will make sure the insurance company does not contact you directly and also protect your interests and rights. Your attorney will also make sure that you get the right treatment and documentation to support you claim for damages. If you are going to use a referral service to find an attorney then use one that is related to Florida Bar or any Bar Association. The rule of thumb is that if the referral service has jingle, then most likely this is not your best bet to find an attorney to help with your claim.

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As South Florida car accident attorneys we are concerned with all aspects of the auto industry. We closely watch any and all safety developments by car manufactures and their behavior at the time of impact. We have watched with fascination and awe the development of autonomous and self-driving cars. These are vehicles that are able to drive themselves. This may seem a farfetched possibility, but one would be wrong to assume this is the case. For example, the state of Nevada is planning to adopt rules to specifically deal with driverless cars by 2012.

The advantage of driverless or autonomous cars is that they will be more effective drivers than humans. They will also be a great advantage to those who are unable to drive for one reason or another. Self-driving cars will also reduce traffic significantly. This will be a great relief for those stuck on the 826 at 5:00 P.M or a family evacuating city due to a hurricane warning. It will also be a great benefit to tourists who do not know the area. Also, not to mention how much more productive we all will be able to be. Perhaps, even DUIs may become a thing of the past.

Of course, there are many questions here. How will driverless cars deal with vehicles driven by humans? How will insurance companies react? Will insurance be needed at all? Will autonomous cars be limited to certain roads? Will there be a progressive integration of these vehicles? Will there be significantly less accidents? How will this affect the South Florida economy?

This may all seem like an unlikely scenario, but it's not wise to bet against companies like GM and GOOGLE. If GM says there will be autonomous cars by on the road by 2020, then this will most likely be the case. After all, there are cars that can parallel park on the road right now. We all have been witness to the breakneck pace of technological development these last two decades. Once cannot deny that these technologies have drastically changed society. I believe self-driving cars will change society in fundamental ways.

Indeed, if there are less accidents many facets of the South Florida economy will be affected. For example, body shops, towing companies, insurance companies, car accident clinics and chiropractors, and Miami car accident attorneys will be affected. Of course, the benefit here greatly outweighs any effect on the economy.

It would be seem we are all destined to become a society of passengers. We may not have to worry about irresponsible drivers and the dangers of the road. Perhaps, the only accidents that will occur are those caused by faults in programming. PIP, collision, and BI coverage may become a thing of the past. This may be our future, but nothing is certain. It is possible that it may take a while for people to give control of the steering wheel over to a program.

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As a South Florida car accident attorneys we understand the frustrations of dealing with the aftermath of an accident. One of the most frustrating things to deal with after an accident is the property damage. In other words, getting your vehicle fixed. Many people just don't want to deal with the eyesore of dented or destroyed car. They want to get back to normal as soon as they can. However, this is not always so simple.

Unfortunately, driving in the streets of Miami-Dade is a bit like walking into a casino. If you are involved in car accident your frustration level will vary depending on what insurance company the culpable driver has. This is especially true when you are dealing with a total loss. Section 319.30 of the Florida Statutes define total loss in the following manner:

[A total loss occurs][w]hen an uninsured motor vehicle or mobile home is wrecked or damaged and the cost, at the time of loss, of repairing or rebuilding the vehicle is 80 percent or more of the cost to the owner of replacing the wrecked or damaged motor vehicle or mobile home with one of like kind and quality.

What this means is that if the cost of repairs amounts to 80% or more of the value of the vehicle, then it will most likely be deemed a total loss. For Example, if a vehicle is worth $5,000 at the time of the accident and repairing the vehicle will cost $7,000, then the likely result is a total loss. The question becomes then, what are your options after a total loss. One consequence which may be difficult to deal with is that the insurance company values your car at the time of the loss and you still owe the bank money. This is an issue that was addressed in a previous blog about Gap Insurance.

As Fort Lauderdale car accident attorneys we understand that another problem that is common is the issue of time. As was mentioned above driving in South Florida and dealing with car accidents is a bit like the lottery. The insurance company of the culpable party makes a difference as to how much and when you will be paid for damages to your vehicle. In fact, many times it is best to process your property damage through your own collision insurance. This is assuming you have collision insurance. Otherwise you have no choice but to deal with the insurance company provided by the culpable party. If you have collision insurance then most likely you will have a deductible which will most likely be reimbursed by the culpable person's insurance company in time. Note the operative language "in time." But in the end this may be the best recourse if you want to resolve the property damage issues quickly.

Alright, so what happens if you have a total loss and you are making a claim against the culpable person's insurance company. The best case scenario is that the insurance company responds in an efficient manner and determines that the vehicle is a total loss and that it is willing to pay the actual cash value of the vehicle at the time of the crash. This offer may take one of the following forms:

1) The insurance company will pay the actual cash value and will keep the destroyed or totaled vehicle.
2) The insurance company will pay the actual cash value and will allow you to keep vehicle.
3) The insurance company will pay the actual cash value and will be deem vehicle salvaged. In this you can get further compensation when you take vehicle to a salvage yard.

As Miami car accident attorneys many times we are asked what to make of these options. The answer requires a case by case analysis. Of course, it is always best when you get paid the actual value of your car and get to keep with a clean title. This often happens with older vehicles with little damage. This is because the damage is minor, but yet the repair cost more than 80% of vehicle.

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If you drive down any highway in South Florida you will find that there are always trucks about. These heavy vehicles tend to make people nervous. They are big and heavy and can cause much more damage than a regular car accident. As South Florida truck accident attorneys we understand the dangers these vehicles present on the roads.

To protect drivers against dangers posed by trucks the Federal Motor Carrier Administration (FMCSA) recently introduced new rules which put more focus for safety on the driver of the vehicle rather than the carrier. This new rules are embodied in the Comprehensive Safety Analysis (CSA). The purpose of these rules is to reduce the incidence of accidents causes by trucks by addressing the main causes. The main mechanism by which the CSA hopes to reduce truck accidents is by monitoring on the drivers.

Drivers are monitored using the BASIC system which looks at seven (7) factors. These factors include, unsafe driving, fatigued driving, driver fitness, drug and alcohol use, vehicle maintenance, load securement, size and weight faults, and crash history. The above mentioned factors can be used by Miami truck accident attorneys to determine the liability of a driver or carrier. The BASIC system should be effective and up to date as drivers scores are updated every thirty (30) days.

We briefly looked at the BASIC categories above, but they deserve a bit more of attention and detail:

1) Unsafe Driving. This category looks at whether the truck driver has any speeding, reckless driving, or other sort of relevant traffic violations
2) Fatigued Driving. This category looks at whether truck drivers are ill or fatigued. A violation would consist of exceeding hours of service, keeping inaccurate logbooks, or driving while ill or fatigued.
3) Driver Fitness. This category looks at whether driver has the proper training or experience to drive vehicle in question. It also looks at whether the driver may have a physical condition that should keep him from driving.
4) Controlled Substances and Alcohol. This category looks at whether driver has used a substance legal or illegal that has impaired his/her ability to drive vehicle.
5) Vehicle Maintenance. This category looks at whether vehicle has been properly maintained.
Violations may include faulty lights or brakes among other maintenance failures.
6) Cargo-Related. This category includes failure to properly manage cargo such as shifting loads and spilled cargo.
7) Crash Indicator. This looks at the crash history of the driver.

To further road safety the FMCSA has also started the pre-employment Screening Program (PSP). This program allows carriers to electronically analyze crash records when hiring a new driver. No doubt this information is helpful as it helps keep unsafe drivers off the road. However, in some circumstances it may be helpful as evidence in negligent hiring claims. In Jones v. C.H. Robinson 558 F. Supp. 2d 630 (W.D. V.A. 2008) and in Schramm v. Foster 341 F. Supp. 2d 356 (D. Md. 2004) the Courts determined safety ratings could be used to show negligent hiring. Thus, perhaps BASIC driver ratings can be used to show negligent hiring in Florida Courts.

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As South Florida Car accident attorneys we understand the struggles that a victim has to deal with. Victims have to deal with painful injuries, loss of work, medical bills, and getting their life back in order. To facilitate this, our office does everything it can assist our clients in their time of need. We help our clients by dealing with the insurance companies involved and dealing with issues of medical treatment, vehicle repair and rental, and making claims for bodily injury as a result of the accident.

However, in many instances one encounters resistance from insurance companies. There are cases in which there are serious injuries and for one reason or another an insurance company refuses to tender a bodily injury (BI) policy limit. Note that insurance policy limits vary from policy to policy. For example some policies have a limit of $10,000/$20,000 and some $100,000/$300.000. This means $10,000 per person and $20,000 per incident.

So what can a victim do when he/she has a serious injury which justifies tendering of a policy limit and the insurance company refuses to comply. As Miami car accident attorneys we understand that this circumstance may give rise to a bad faith claim. A bad faith claim can be filed by the victim of a car accident (3d party) and also by owner of the policy or party at fault (1st Party). Florida Statute 624.155(b)1 allows for a bad faith claim when an insurance company fails to settle when under all circumstances it should have done in fairness toward its insured.

Before filing a bad faith claim or lawsuit a Civil Remedy Notice (CRN) should be entered through the Florida Department of Financial Services. A CRN puts the insurance company on notice that it may be liable for bad faith. At that point the insurance company can avoid the bad faith claim by paying for damages or remedying the circumstances which gave rise to the violation. A good CRN should be specific and to the point in order to avoid being dismissed. If a victim prevails on a CRN it means he may be entitled to damages, Court costs, and attorney's fees. The advantage here is that the damages awarded may be beyond the policy limits. Meaning, that if you have damages that amount to a $1,000,000 and the policy limit is $300,000 the insurance company is out of luck and will have to pay for the entire cost of the damages.

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There are many types of losses that can occur to a home or a business in South Florida. As Miami-Dade homeowner's insurance claims attorneys we have seen many of these. Some of the most typical kinds of claims involve wind damage, plumbing leaks, floods, sinkholes, and theft.

In any sort of loss you should take all steps possible to mitigate the damage. Most, if not all, insurance policies require one to mitigate damage. This means that you should take all steps possible in order to prevent the damage from getting worse. For example, if there is a plumbing leak than you should shut off the water, contact a plumber, and dry any areas that are wet. If we are dealing with a roof leak than you should do everything possible to stop the leak (like putting a tarp on roof) and drying any affected area.

After the damage is mitigated it is important to contact your insurance company and report the loss. Most insurance companies require that you report the loss within a reasonable time. To avoid making this into an issue it is imperative that you call your insurance company soon after the loss. If you feel uncomfortable speaking with your insurance company then contact an attorney immediately who can assist you with this. The insurance company will then most likely send someone out the property to take pictures, make an estimate, and perhaps take a recorded statement. At this time it would be wise to have an attorney present. Insurance companies can be particularly coy when it comes to dealing with recorded statements. Certain insurance employees may use tactics in order to elicit answers that will not be beneficial toward your claim.

It is also very import to record any and all damages that have occurred to your property as a result of the loss. Take pictures of any areas of the home or business that have been damaged. Also, if you make any repairs be sure to save a copy of your receipts. On that note, it is imperative that you hire licensed professionals to make any repairs as it pertains to the loss. If you do repair the entire loss, then it is important to note that your claim may be limited to that amount.

When dealing with a theft claim it is important to have receipts of purchased items. Being insurance property loss attorneys in Fort Lauderdale we know how important it is to have this evidence. Thus, it is important to have records of any significant items you may buy. For example, jewelry, expensive clothes and shoes, electronics, etc. It should be noted that if you do suffer a theft it is important to report this to the police as soon as possible. It goes without saying that it is imperative to provide an official record of the theft.

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