With beautiful weather all year and plenty of sites to see, Florida is a popular place for motorcyclists. Unfortunately, the state sees around 10,000 motorcycle accidents a year, with a large number of those accidents resulting in injuries to the riders and passengers. If you’ve been injured in a motorcycle accident that was caused by another motorist, you should seek compensation to pay for the expenses you’ve incurred as well as those you will likely face in the future. However, there is a process for determining what items to include in your claim.
What Is a Claim? What Are Damages?
The legal definition of a claim is a request for a court to enforce a legal right that you have. It is also commonly referred to as a lawsuit. In Florida, while motorcyclists are required to either carry liability insurance or proof of financial responsibility, they’re not under the no-fault insurance laws that cover four-wheeled motor vehicles. What this means is that motorcyclists, unlike motorists, are allowed to file personal injury claims if they are injured in an accident without having to first prove permanent injury.
Damages are a sum of money that the law imposes for a breach of a duty of care in a tort lawsuit. A tort lawsuit is a legal action filed in civil court based on a wrongful act or an infringement of a right leading to liability. There are two types of damages: compensatory and punitive. Compensatory damages are related to the expenses and impacts that the injury has had on the injured party, known as the plaintiff.
Punitive damages are imposed to punish the at-fault party, who is known in the lawsuit as the defendant. It should be noted that punitive damages are rare in Florida personal injury cases and only available in cases where the defendant’s wrongdoing was particularly wanton or reckless. Your experienced motorcycle accident attorney can advise you if punitive damages are warranted in your case.
Proving Liability in a Motorcycle Crash
Motorcycle accidents can be incredibly complex, both due to the severity of injuries that are typically sustained by motorcyclists involved in accidents with other motor vehicles, as well as the tactics used by insurance companies to avoid paying claims to motorcyclists. Insurance companies for defendants subject to legal claims often use negative stereotypes of motorcyclists to try and negate the liability of their insured. Injured motorcyclists must seek the services of an experienced personal injury lawyer to successfully fight for compensation.
While some personal injury claims are based on wrongful acts committed by the defendant, most are based on negligence. Negligence is defined as the failure to behave with the level of care that someone of ordinary prudence would have exercised in similar circumstances. To prove negligence, a plaintiff must establish the following facts:
- The defendant owed the plaintiff a duty of care. In a motorcycle accident case, the duty of care that a motorist would owe the motorcyclist would be to drive his or her vehicle in a safe and legal manner.
- The defendant breached his or her duty of care. This would constitute the negligent behavior engaged in by the defendant.
- The breach in the duty of care resulted in an accident that caused the plaintiff injury.
Establishing a Value to Your Case
To issue a demand letter to the insurance carrier of a defendant in a personal injury claim or to file a personal injury lawsuit on your behalf, your motorcycle accident lawyer will establish a value to your claim. The value of your claim is the amount of compensatory damages you are owed based on the out-of-pocket expenses you’ve incurred due to your injury, which are known as economic or special damages, as well as the negative impact that the injury has had on your life, which are known as non-economic or general damages.
Economic damages are expenses that the plaintiff was either billed for, can prove a financial loss from, or will likely face in the future based on the severity of the plaintiff’s injury. An example of economic damages that a motorcyclist may claim due to injury suffered in an accident include:
- Medical expenses related to the injuries sustained in the accident. Medical expenses include items like ambulance transport from the scene of the accident to the hospital; emergency department expenses; emergency medical treatment or emergency department services; diagnostic and laboratory testing; hospitalization; surgical services; physical or occupational therapy; rehabilitative services; prescription medication; and medical equipment, such as wheelchairs or crutches. In cases involving permanent injuries that have a high probability of requiring ongoing medical care or additional medical treatments, your motorcycle accident attorney will also factor into your case value the estimated cost of those treatments based on information provided by your doctors or by other medical experts with experience in treating similar injuries.
- Lost income. including wages lost due to being too injured to work or from having to miss work to attend injury-related appointments.
- Property damage to the plaintiff’s motorcycle and helmet.
- Other out-of-pocket expenses, such as transportation to and from medical appointments, the cost of household services that the plaintiff used to do but now must pay someone to perform due to the extent of his or her injuries, and the cost of accessibility modifications to the plaintiff’s home that are required to accommodate his or her injuries, such as wheelchair ramps, door widening, or stairlifts.
- Loss of future earning capacity. These damages are claimed by plaintiffs who have suffered a permanent injury that renders them unable to work, or unable to work at the position that he or she formerly held, resulting in a loss of income. These damages are calculated based on the plaintiff’s age, health status, occupation, and income at the time of the injury.
Not all damages from motorcycle accidents are physical and result in billable expenses. Florida law allows for plaintiffs in motorcycle injury cases to also recover damages based on the physical, emotional, and psychological impacts that the injury has on his or her personal life. Some examples of non-economic damages that plaintiffs may seek in Florida motorcycle accident cases are:
- Pain and suffering: Pain and suffering damages are based on the amount of physical pain the plaintiff has endured due to the severity of the injuries that he or she sustained, as well as the pain involved in treating these injuries.
- Loss of enjoyment of life: These damages are related to hobbies and activities that the plaintiff used to enjoy but can no longer enjoy due to the injuries sustained.
- Fear, embarrassment, or humiliation: These damages relate to the negative emotions that the plaintiff’s injury has caused, including an altered body image from disability, scarring, or disfigurement that makes the plaintiff uncomfortable being seen in public.
- Loss of consortium: This damage is based on the loss of intimacy in the relationship suffered by the plaintiff’s spouse due to the extent of the plaintiff’s injuries.
When determining the value of your case, or when the jury determines the amount of general damages to award, factors that are heavily weighed include the severity of the injury, the type of medical treatment received by the plaintiff and the amount of pain associated with that treatment, the length of recovery typically required for victims of this type of injury, prognosis, and how profoundly the injury has impacted the plaintiff’s life.
How Do Plaintiffs Establish Non-Economic Damages?
Non-economic damages are those impact-of-life costs that can’t necessarily be proven with bills or financial statements. Instead, personal injury attorneys rely on other means to prove the impacts of injuries to their clients’ lives, such as:
- A mental health professional’s written opinion as to the plaintiff’s emotional state following the injury.
- Testimony from the plaintiff as to the impact the injury has had on his or her life, as well as testimony from the plaintiff’s spouse, caretaker, or family members.
- A prescription history that demonstrates the need for anti-anxiety medications after the injury.
- The opinion of a medical expert as to how injuries like those that the plaintiff suffered would impact an individual’s life.
Things That May Change Your Settlement or Award
Every motorcycle accident claim is unique, based on the individual facts of the case. In the section above, we briefly touched on some of the factors involved in establishing a value to a case that demonstrates both the economic and non-economic impacts that injuries have on a plaintiff’s life. Here is additional information on those factors, as well as other issues that may impact your settlement or award.
- The defendant’s level of insurance coverage. While an individual can certainly file a lawsuit against an uninsured motorist, any award offered may be hard to collect. Your attorney will carefully examine the details of your case to determine all insurance resources that may be available to provide compensation for you, including your own insurance policy and the policy held by all potentially liable parties. If other individuals or entities may have caused the accident and therefore your injuries, you might draw from additional insurance resources.
- The severity of the injuries sustained. Highly visible injuries or those that are particularly painful to treat generally result in higher settlements or awards, as such injuries create a higher multiplier when determining non-economic losses. Non-economic losses are calculated by determining the amount of actual expenses (economic losses) and multiplying that number by 1.5 to 5 (the multiplier). Multipliers are based on injury severity.
- The level of disruption that the injury has caused to the plaintiff’s life. Like the severity of injuries, the disruption that the injury causes to the plaintiff’s daily life may also impact the value of the case. Disruptions include difficulty with functions needed for everyday life, such as the ability to walk or stand, as well as injuries that require the plaintiff to change jobs because he or she can no longer physically perform the tasks of his or her chosen career. The more disruptions the injury causes, the higher the settlement or award will normally be.
- The extent of the treatment and recovery required. Higher multipliers are typically given to the calculation of injuries in cases that require prolonged treatment in a hospital setting as opposed to recovery at home, as well as injuries that the plaintiff will not recover from or that have a particularly prolonged and difficult recovery period.
- Newsworthiness. While not necessarily a fair influence of what the case is worth, cases that involve a high profile defendant, or that have received a high level of publicity due to the egregious conduct of the defendant, may result in a higher settlement or award. Egregious or particularly wanton behavior also may call for a court to award punitive damages, thus further increasing the total amount of the award.
- The plaintiff’s level of patience. Negotiating a settlement is often a drawn-out process. Generally, the more patient the plaintiff is while his or her attorney attempts to negotiate a fair settlement, the higher that settlement will ultimately be. Insurance companies often expect plaintiffs to act impatiently. The companies will offer low settlements in exchange for a quick resolution to the case. However, particularly if a lawsuit is filed and there is a high probability that the client will receive a favorable judgment in the case, the insurance company will usually offer more money as negotiations continue.
- The experience of the plaintiff’s personal injury attorney. Not all attorneys are created equally. In a motorcycle accident case, hire an attorney with extensive experience with these types of cases, skills in proving negligence and establishing case values, powerful negotiating skills, and comfort with litigation if the case does not settle.
If you were injured in a motorcycle accident, a consultation with a skilled motorcycle accident attorney can answer your questions and help determine the compensation you might recover.
Orlando, FL 32814