Blog Topic

Don't Be Dissuaded to Pursue a He Said/She Said Claim
Posted by: James Gitkin
January 18, 2009

There are two main components of an injury claim - LIABILITY and DAMAGES (causation is another big one to be addressed in another post).  Liability concerns who did what wrong in an accident and damages have to do with the extent of a person's injuries, economic losses, and pain and suffering after an accident.  With respect to liability in auto accident cases, often the who did what wrong is relatively cut and dry.  I have many auto cases where my client was rear-ended or where the other party clearly ran a red light and is conceeding liability.  I signed up a case last week where a man ran a red light and slammed into my client's car, causing the car to flip over two times.  When I spoke to the other driver's insurance adjuster I was assured that the liability would simply not be an issue in that case.

Not all cases are that easy, unfortunately.  As an injury and auto accident attorney in Fort Lauderdale, I have seen many accidents where you would think that the parties were in completely different accidents.  My client and the opposing driver have such divergent stories of the accident and are ready to swear on anything that their version of the story is the right one.  Also, there are times where witnesses with fuzzy memories of the accident can cloud the facts and make it even more confusing as to who actually caused the accident.  I have even had clients who received the citation from the investigating officer but were adament that the accident was actually the fault of the other driver.

Do not be dissuaded to speak with an attorney if there are conflicting stories regarding the accident, or even if you were issued the citation.  For starters, Florida law adheres to the doctrine of comparative fault in auto accidents.  Essentially what that means is that in the event you go to a jury trial for your case, the jury does not make a black or white determination of negligence of the defendant driver - i.e., yes it was definitely the other driver's fault or no it was not.  Florida juries are instructed by the court to apportion percentages of fault to all parties (and non-parties) including the injured person that filed the lawsuit.  Thus, even if the jury is somewhat compelled by the other driver's story, they may believe that your version still makes more sense and decide that the other driver is 50, 60, etc. percent responsible for the accident.  You would then receive that percentage of your verdict amount ($200,000.00 verdict; other driver deemed 50% responsible; judgment amount would be $100,000.00).

Also, seasoned trial lawyers know that oral testimony is not the only liability evidence that can be presented at an auto accident trial.  When the damages justify the expense, in a situation where the are conflicting versions of an accident, most good trial lawyers will dig deeper by retaining an accident reconstructionist (an expert who can scientifically reconstruct the accident and many times determine the true way in which an accident occured).  Often the accident reconstructionist will read transcripts of the testimony, examine the crush damage of the vehicles, review the investigative reports and traffic light sequencing reports, and look at the accident site to piece together speeds of vehicles and facts of an accident.  The findings are sometimes used to create animated simulations of the accident that juries can find to be very compelling.

Lastly, receiving a citation does not mean that your case is dead in the water.  In Florida, the Accident Report Privilege is applicable to most accident investigations.  The Accident Report Privilege stands for the proposition that statements made to the investigating officer after an accident are not admissible in a civil(injury) trial.  After most accidents, investigating officers rely primarily on statements which significantly hamstrings the officer's ability to testify about anything in the injury case.  All the officer can typically testify to is what he/she observed or saw.  Also, the fact that you received the citation is not admissible.

Overall, if you have been injured in an accident and believe that the accident was caused by the other driver, speak with an attorney and find out about your rights.  It could be that what you believe to be an insurmountable situation is something that the attorny can navigate through to get you a recovery.

Permalink

Have a Safe and Happy Fourth of July
Posted by: James Gitkin
July 04, 2008

The Fourth of July is a great holiday, especially when it comes on a Friday like this year.  We all get a nice long weekend, and we can spend our Friday with our families and friends bar-b-que-ing at a party, watching fireworks and enjoying the day.  Almost every Fourth of July party involves some amount of alcohol (and there is nothing wrong with that).  Many people like to enjoy a nice, cold beer at their July 4th parties.  We all know where the problems comes though - making that awful decision that you're sober enough and getting behind the wheel of your car.  As a lawyer in South Florida practicing personal injury law, I have handled far too many auto accident cases, and many of them have involved a driver that was intoxicated.  In one of my cases, a drunk driver hit my clients' car and took off; the car was ultimately found ditched at a gas station several miles down the road containing a case of beer and booze, with some of the containers opened.  Thankfully, my clients only suffered neck and back injuries that caused them pain and discomfort, but haven't completely derailed their ability to go to work and live their lives.  I have unfortunately also been a part of cases where victims have not been so lucky where the results are catastrophic.

 I don't mean to be the grim reaper on a nice day.  Everyone should enjoy the holiday and by all means have a beer or two to celebrate the occasion and the day off.  Just remember that getting behind the wheel of your car today after having anything to drink is an incredibly poor decision that could have terrible results for some unsuspecting people.  Take a cab, sleep it off, or just choose not to drink if you are definitely going to drive.  Be safe and have a wonderful Fourth of July!

Permalink

Uninsured/Underinsured Motorist Coverage is Crucial in Florida
Posted by: James Gitkin
June 13, 2008

As a lawyer practicing personal injury law in Florida, many of my clients ask me about the different types of auto insurance available to drivers.  There are four main types of auto insurance in Florida:  no fault/personal injury protection (PIP); property damage (PD); bodily injury (BI); and uninsured/underinsured motorist coverage (UM/UIM).  Florida law requires car owners to carry PIP insurance.  It provides medical benefits and lost wages up to $10,000.00 for a driver involved in an accident, regardless of who is at fault for the accident (thus the phrase 'no fault' insurance).  If a driver is responsible for an accident, PD insurance will compensate the other driver for the property damage sustained by that person's car, and BI insurance will compensate the other driver if he or she is injured.  If you carry ample property damage and bodily injury insurance, you can reduce the potential for injured persons attempting to seek out your personal assets after an accident.

While personal injury protection, property damage, and bodily injury insurance are very important to carry in Florida, perhaps the most import auto insurance a driver can and should carry is uninsured/underinsured motorist coverage.  The way UM/UIM coverage works is as follows - in the event you are injured in a car accident and the other driver is at fault and is either carrying no bodily injury insurance or inadequate bodily injury insurance, you can recover from your own insurance company for the injuries you sustained and the pain and suffering you experienced (in some circumstances).  This is so important because Florida law does not require drivers to carry any bodily injury insurance.  Thus, in the event you are in an accident with one of these drivers, if you are carrying UM/UIM insurance, you will have an avenue to be compensated for your losses.

In handling auto accident cases throughout Florida, I have found that too many at-fault drivers simply do not have bodily injury insurance, or they are carrying very low BI insurance.  If the injured driver does not carry uninsured/underinsured coverage, the results can sometimes be devistating.  I currently represent a man who was involved in a very serious accident.  He has endured multiple surgeries, has been laid up in the hopspital for two months, and it looks as though he may never work again.  There were two other vehicles that were partially responsble for the crash and both drivers were carrying very little insurance.  Unfortunately, my client was not carrying UM/UIM insurance.  We are now struggling to find any sources of coverage to compensate him for his very extensive damages.

Conversely, I have had some nice recoveries over the last few years for people who were fortunate enough to carry UM/UIM motorist coverage.  Last year, I was able to recover $250,000.00 for an eighty plus year old man whose car was rear-ended in Delray Beach by an uninsured driver.  My client suffered shoulder and back injuries and spent additional time in the hospital after incurring an infection.  Thankfully he was carrying enough uninsured coverage to appropriately compensate him.  Recently, I was also able to obtain $115,000.00 for a man who suffered nerve damage after his arm was pinned by a car backing out of a parking space - again the other driver was not carrying any insurance.

 It's amazing how many people I talk to in Florida who do not know how crucial it is to carry UM/UIM insurance until it is too late.  The bottom line: if you are not carrying this very important insurance, you should consider adding it soon to your policy.  I personally recommend carrying at least $100,000.00 in coverage, but at least carry something because if you are in an accident, there is a very real chance that the other driver will not be carrying insurance.

Permalink

Technology Can Lead to Distractions and More Accidents
Posted by: James Gitkin
June 09, 2008

The recent advances with technology and the various gadgets in cars have made the overall driving experience much more enjoyable.  MP3 players and satellite radios provide infinite music options; navigation systems give drivers real-time directions; blue-tooth allows drivers to use cell phones right through the radio; and, some cars are even equipped with TV's, DVD players and video game consoles.  All of these devices allow drivers to enjoy the ride, get perfect directions, conduct business, pacify the kids, etc.  But as a lawyer in South Florida specializing in personal injury cases, I have found that many times these gadgets and devices are distracting to drivers and ultimatley lead to serious accidents.  Driving in South Florida can be difficult - there is no question that Miami and Fort Lauderdale have some of the most agressive drivers you will find anywhere.  Add in a driver distracted by following directions on a navigation system or turning the dial of a satellite radio, and accidents are bound to happen.  At my law firm, Salpeter Gitkin, LLP, we have updated our discovery requests in car accident cases to be more current with the times.  We ask what devices were present in the car at the time of the accident, subpoena records in an attempt to confirrm what technology was being utilized at the time of the crash, and make sure that we hold drivers accountable for not paying attention to the roads.

There is certainly nothing wrong with having new and exciting technology in our cars to enhance the drive and to capitalize on time spent in the car.  Many of us are commuting in stand still traffic for too long, and these devices make the drive much more tolerable.  But, drivers should never lose track of the ultimate purpose of driving a car, getting to a particular destination safely and in one piece.  Other drivers should not bear the burden of property damage and serious injuries because a driver is too distracted to pay attention to the road.

Permalink