The new law denying injured persons any damages if they are more than 50% at fault could cause the plaintiff to shoot craps in mediation or negotiation.
The injured plaintiff now faces the risk of taking and recovering nothing unless she can convince an insurance company or a jury that she was not more than 50% at fault–a difficult if not impossible task in many cases where there is no way to objectively predict how a jury would apportion percentages of fault.
This will steeply compromise the plaintiff’s bargaining position in negotiation and mediation, which is precisely what the sponsors of the bill wanted. Faced with the prospect of getting nothing, plaintiffs may feel compelled either to accept a fraction of what they deserve, or risk losing it all.
The biggest change in Florida personal injury law is the change in the law of comparative negligence which now says that an injured party may not recover any damages if the injured party is more than 50 percent at fault.
This will affect every single case where both parties were partially at fault, and where the percentage of fault attributable to each is debatable, as is so often the case.
What if you were seriously injured in a collision at an intersection. In court, suppose the facts are contested, and a jury finds you to be 51% at fault in causing the collision, and the other driver to be 49% at fault.
You may have hospital bills, scars, permanent disabilities and lost earnings for which the other driver was 49% responsible. But rather than collect 49% of those damages from the other side, under the new law, you will get nothing. Nothing.
This means that a sizeable chunk of damages that were previously available under law no longer exists, and many injured persons will be denied recovery of a percentage of damages to which they were formerly entitled. A longstanding civil right to damages simply done away with by an act of the Legislature and the stroke of the Governor’s pen.
I just sent a referring attorney a check for $50,000.00 as a referral fee. He was thrilled.
$50,000.00 is quite a windfall for a lawyer for “just making a phone call.” But bar rules contemplate that the referring lawyer not just make a call, but participate and assume “secondary responsibility” for the case and client. For assuming this “secondary responsibility,” the referring attorney may receive “a maximum of 25% of the total fee.” By the way, the referring attorney not only participates in the fee, but also can be liable if the case is mis-managed and results in a mal-practice claim.
Referral fees in excess of 25% are strongly frowned upon. If the referral fee exceeds 25% the lawyers must obtain permission from the court.
Lawyers are not, repeat not, allowed to share fees with non attorneys, and if discovered to have done so, the lawyer would be subject to discipline including in one recent case suspension from practice.
We are fortunate to have built a network of attorneys over the years who often turn to us to handle their clients’ personal injury cases, through steady, aggressive and ethical representation. If you’re an attorney interested in co-counseling your client’s personal injury case with an attorney who gives each individual case and client personal attention, we may be a good fit for you.
The tragic death of five teenagers on the Palmetto Expressway because of a drunk driver going the wrong way puts a spot light on the issue of punitive damages for drunk driving in Florida. Florida law clearly recognizes that persons injured by a drunk driver are not only entitled to “compensable damages” –damages intended to compensate for one’s injuries such as medical bills, lost earnings, and pain and suffering–but also damages intended to punish the drunk driver. Florida law treats punitive damages resulting from drunk driving differently than punitive damages in other cases. Rather than requiring “clear and convincing” evidence, drunk driving can be proven by “the greater weight of the evidence,” a much lower standard. Also, unlike other punitive damages cases, there is no cap on the amount that can be recovered when punitive damages are sought for drunk driving. Insurance does not provide coverage for damages resulting from drunk driving. Insurance only covers for damages resulting from “Negligent” or :”Careless” conduct; whereas, drunk driving is intentional. But a good personal injury lawyer will still press for such damages–to anger a jury, and to pressure the insurance company to pay its policy limits.
• In Midtown Miami: NE 2nd Ave. and NE 36th Street • In West Kendall: SW 117th Ave. and Kendall Dr. • In Coconut Grove: S. Dixie Highway every intersection south of I-95 • In South Miami-Dade: SW 117th Ave. and SW 152nd St. • In Fort Lauderdale: A1A and Las Olas Blvd. • In Miami Beach: Alton Rd. and Dade Blvd. • In Doral: NW 87th St. and NW 36th St. • In Miami: Brickell Ave. Bridge • Pembroke Pines: Pines Blvd. and S. Flamingo Rd.
And remember, if you’re in an accident,
• Call 911 • Move your vehicle out of the flow of traffic if possible • Exchange driver’s information • Get yourself checked out • Take pictures
Personal Injury Attorney Mark Wolin proudly serves Florida and South Florida communities in Miami-Dade County, Monroe County and Broward County including Aventura, Bal Harbour, Bay Harbor Islands, Biscayne Gardens, Biscayne Park, Davis Harbor, El Portal, Hallandale, Hallandale Beach, Hialeah, Hollywood, Hollywood Beach, Liberty City, Little Haiti, Little River, Miami, Miami’s Upper East Side, Miami Beach, Miami Gardens, Miami Shores, North Bay Village, North Miami, North Miami Beach, Opa Locka, Pembroke Pines, Pembroke Park, Sunny Isles Beach and Surfside, Florida. View our privacy policy here.
