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• Introduction
• If Injured, What To Do First
• Who Should Pay
• Types of Insurance
• Ensuring Full Compensation
• Elements of a Claim
• When is Payment
• Ensuring Protection Under the Law
• Further Information

The United States of America has long established a tradition of fair, reasonable, and complete compensation for any injury or loss sustained by a person. Although new forums for relief are becoming available through procedures of arbitration and even structured mediation, the majority of claims are processed and handled by the judicial system, to which all persons are entitled to access. The Florida constitution provides "the courts shall be open to every person for redress of any injury..."
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Often injury at the outset is underestimated and sometimes not even perceived. Some physical conditions and symptoms will arise for an injury days or even months after the harmful event. Symptoms due to brain injury may never be perceived and may be detectable only after the conduct of batteries of electrical and written tests. It is important and crucial that any person who is concerned about the possibility of injury SEEK A MEDICAL PROFESSIONAL OR HOSPITAL IMMEDIATELY to determine what, if any, injuries he has sustained. Any symptom regardless of how small or intermittent should be examined since English and American common law have always stressed the need for full compensation of any injury. This compensation should include not only lost wages but also the diminished ability to earn money, plus pain and suffering, anguish, and inconvenience sustained in the past and to be foreseeably suffered in the future.
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Our nation, together with its system of full compensation for losses, has established a long tradition of spreading the losses sustained to any individual persons to the community at large through the social mechanism of insurance. Most injuries caused by another person or business are covered through contracts with insurance companies. It is important that the insurance company covering any loss be contacted immediately so that they may preserve their rights to conduct an investigation and not dismiss claim coverage to their insured due to a lack of notice. Many times, their own insured person who caused the loss may not notify them, and it is essential that they be notified by the injured person immediately. Insurance which might pay for injuries usually involves either automobile insurance, premise liability insurance, or insurance owned by the injured person himself, such as health insurance or uninsured motorist coverage.
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Most states require that an insurance company divulge or disclose its coverage upon receipt of a request from an injured person. This request should be sent out immediately so that an injured person may determine whether a claim should be made against the person causing their injury or the insurance company itself. Upon receipt of this request, an insurance company will usually contact the person who caused the injury, conduct an investigation, and exclusively negotiate and resolve the claim themselves without the assistance or aid of the person who actually caused the injury. In the State of Florida and in several states in America, there are the following types of insurance which may cover an injury or loss:

No-Fault Insurance

This is an involuntary and mandatory insurance program created by the state and requiring all motorists to carry insurance for their own personal injury and lost wages. Usually this program does not pay the entire amount of medical bills sustained or wages lost. The injured person is usually responsible for a small portion such as twenty percent. Regardless of the degree of fault of the injured person in causing his own injuries, this insurance must pay his or her medical bills and lost wages. Most legislatures passed these mandatory programs styled as "tort reform" in an effort to minimize claims and litigation against third parties by payment of claims through each motorist's own policy.

Bodily Injury/Business Liability 

Most insurance policies using the term "liability" cover all claims which involve the injury or loss caused to another person. These type of policies insure responsibility for losses caused by the negligence or wrongful conduct of a person. It is important to determine the existence of this type of coverage immediately since if there is no coverage, often there will be no recovery made. Most persons, even businesses, who have committed negligent or wrongful acts do not have assets sufficient to compensate an injured person.

Uninsured Motorist Coverage 

This is insurance sold to a person for coverage for his own injuries in the event that he is hurt by a person or entity which is not covered by liability insurance. A large percentage of motorists do not carry liability insurance and this type of insurance insures that there will be at least some compensation for any loss.

Medical Payments Coverage 

This is insurance purchased by a person to cover medical bills for his own injuries regardless of fault and for the entire amount of such bills.

Health Insurance 

Usually provided by the employer or union and covering a portion of medical bills which are deemed reasonable and necessary. Many health policies do not cover injuries sustained through the negligent act of another and may not pay the bills of providers who are not participating in their program. Most states now require that a health insurer be repaid from any recovery the sums expended for treatment.
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Seek the advice of an attorney immediately.

All to often, important and essential facts which can only be determined immediately from the scene or within a few days after an injury are lost due to the failure to obtain educated and experienced professionals who can conduct an investigation and put parties on notice to make certain that all areas of possible insurance coverage are established. An experienced attorney can also suggest to an injured person the type of medical professionals needed to determine the full extent of their injuries. An attorney can also assist his client in determining the existence of available insurance so that the client's concerns about growing medical bills can be addressed up front.

Often, a personal injury attorney will agree to the retention of his services without the need for payment up front. It is always important that if there is an agreement whereby the attorney and the injured person share in the proceeds of his or her recovery, that this agreement is in writing. In the State of Florida, it is a matter of law that this agreement be in writing. It is important that the agreement provides that no disbursements or any payments to any person shall be made without the client's written authorization.
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Every injury, save for those involving product liability, usually involves the same elements which must be proved either to the responsible insurance company or to a court of law. Each element forms the issues which are to be decided by a jury or judge and include the following:

Duty

There must be a relationship or circumstance between persons justifying the exercise of care or duty of care to each other. A person may have a duty to practice reasonable care toward another person when operating a motor vehicle or permitting them on their real property. This duty of one person may extend through persons such as employees or other drivers who may create responsibility for their actions to this person who may be the owner of a vehicle or land. There are instances when there may not be any duty between persons, such as between a government and its citizens or when there has been a knowing waiver of said duty.

Negligence 

Where there is a duty established, the next element of a claim to be proven is the breach of said duty or the failure to use reasonable care. Reasonable care is defined as that degree of care which a reasonably careful person would use under like circumstances. Juries are crucial in determining what constitutes the practices and proper conduct of a "reasonable" person. Negligence often can be quantitatively separated between parties and the law usually holds that a person is only responsible for his percentage or degree of negligence which caused an injury. This area of a claim is very important, and it is essential that an attorney immediately be contacted so that all facts may be gathered to prove the full extent of negligence of the injuring party.

Causation

Negligence alone is not sufficient for a claim, but it must be negligence which is found by the jury to be a legal cause of loss, injury, or damage. Symptoms or losses claimed to have been sustained may not have been caused by the negligence of the other person and this often becomes a question for the medical professionals in any claim. These medical professionals will be intent on looking at the type of symptoms, any delay of onset of symptoms, and the existence of similar symptoms in the past. It is important that all prior and similar symptoms of injury be disclosed so that each medical professional may form an accurate opinion of the cause of injury. Often failure to disclose prior symptoms needlessly damages the credibility of the claimant and angers the jury.

Damages

Damages include medical bills, if reasonable, lost wages, lost earning capacity, disability, pain, suffering, mental anguish, inconvenience, loss of capacity for the enjoyment of life. These damages are considered not only for the past but also are to be awarded for the future through the expected duration of the person's life. These damages may be reduced by a person's own negligence in causing his own injury, and they may also be reduced by insurance or other sources, such as sick pay, which have paid for medical bills or lost wages. These damages are defined broadly and extend even to the spouses or family members of a person injured who may incur their own suffering or responsibility for economic losses.

Damages Threshold

In many states and in the State of Florida, it is necessary to prove the existence of an injury which is permanent and perhaps significant in order to recover losses exceeding medical bills and lost wages. In order to prove this permanent injury, it is necessary to have a medical professional testify to its existence. These thresholds often relate to automobile accidents but not to accidents involving slips, falls, or intentional conduct. This threshold was part of legislation characterized as "tort reform" which limited a person's right to pain, suffering, and non-economic losses in the absence of a permanent injury.
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Settlement

Most claims are settled between the insured, his attorney, and the insurance company involved. Insurance companies often have a duty by law to handle claims reasonably and fairly and, if presented with sufficient information to determine the negligent cause of an injury, will pay for losses sustained. Insurance companies are in the business of earning profits for their shareholders and it is to be expected that they will pay as little upon a claim as possible, and it is important for an attorney to be contacted so that he may negotiate the fullest compensation for the injured person.

Litigation

When claims cannot be settled, it is often necessary to file a complaint or written plea of relief in the local state court against the person causing the injury. A complaint need only set forth the above-described elements and need not seek a precise sum of money. The insurance company is rarely included as a party in the suit but, pursuant to its policy, employs the attorney who defends the person alleged to have caused an injury.

Discovery

After a complaint has been filed and an answer filed in response, it is then the duty of the opposing attorneys and their respective clients to investigate and determine facts of the claim and any facts forming part of the defense. This process is known as discovery and involves depositions or oral examinations of witnesses and parties. Discovery also involves the written questions through interrogatories of witnesses or parties and the request of documents and things to be examined and reviewed. In personal injury cases, there is often a doctor who is selected by the defense who is entitled to conduct an examination of the injured party and testify as to his opinion of their injured condition, if any. The same doctors are routinely employed by insurance companies, and can usually be relied upon for a biased opinion favorable to the insurer.

Mediation

Most state courts now require that before a claim may go to trial before a jury that a mediation be conducted face to face between the parties. At this mediation, a third person, the mediator, usually a retired judge or experienced attorney, will convey offers between the parties in an attempt to settle the case on its issues and not on any personal animosities or biases. Often these mediations are successful in avoiding further litigation and trial.

Offer of Judgment

Most states, including the State of Florida, are now imposing a program whereby the loser pays for the costs of litigation. This system is usually implemented through the use of offers to settle, which any party may make to the opposing party. If the offered party is less successful than the offer which has been provided, they may be responsible for the attorney's fees and costs incurred by the other party. These offers can be made also by the injured person to the Defendant who is offered settlement for a sum, and where that offer is exceeded the offeror may recoup his legal fees and costs.

Trial

In each state, almost all actions are guaranteed a right to a trial by a jury of one's peers drawn from the community. The jury, made up of six to twelve persons, actually decides all factual disputes of the case, and the judge is restricted to providing the law of how to decide disputes. In a trial, the rules of evidence are employed to narrow the facts introduced to the jury to the relevant and essential issues. While the attorneys are entitled in their opening and closing statements to address the jury, the majority of time in a trial is spent on the introduction of evidence through witnesses and review by the jury of documents or objects. The jury, after hearing the evidence and argument of each respective party's counsel, then deliberates in secrecy until determining, usually with the requirement of unanimity, their decision to be written upon the verdict. The broad use of a jury to determine the need and extent of compensation is unique to America and provides the individual with an unfiltered right to accountability.

Judgment 

The court, after reviewing the verdict of the jury, enters a judgment against the person who has been found to have caused an injury. Most insurance companies upon entry of this judgment will immediately pay the full sums of the judgment within the limits of their policy. However, if there is no insurance, then action must be taken against the adjudged party through seizure of property or assets held in a bank or with other persons. This judgment is structured to include all claims that a possibly injured person may make, and that injured person usually cannot return to the court for his injury at any time in the future if a judgment has been entered on his behalf. It is thus important that an attorney be employed so that all losses suffered or to be suffered are included within the claim so that a person may achieve full compensation.
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The law constantly changes, both through the operation of judicial opinions and through the legislature. Recently there have been efforts on the part of businesses and insurers to limit the rights of persons seeking recovery for their losses. These efforts are commonly referred to as tort reform and usually involve the imposition of an obstacle to recovery such as the permanent injury threshold described above, or the limitation of damages such as the mandatory reduction of any medical bill award by insurance proceeds already paid. These efforts almost always involve taking away the decision making process from the judge and jury. With more and more potential power being concentrated in large corporations and insurance companies through the use of expensive lobbying, it is important that the powers of the jury remain as a protection for the individual against the wrongful acts and negligence of others. Legislatures too often only hear the concerns of big businesses and insurance companies in maintaining their profits and income and less often from persons injured whom have not gotten full recovery, of which there are many. In order to make sure that each and every citizen gets his fair share when injured by the wrongful conduct of another, it is important that you voice your concerns to your legislature and to consumer groups who devote their energies to the protection of individuals. Unfortunately, it is only consumer's groups and lawyer's associations which fight for the rights of the individual and the jury. Legislative programs sponsored by big businesses and insurers once approved are rarely, if ever, repealed, and forever change the legal process itself to which we are all entitled to a fair hearing and full compensation.

There is no legal cure for injury, but America's long held beliefs in complete reimbursement and the fairness of the jury can form a strong medicine not only for the injured person but also in the prevention of future injury to others.
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