Comparative Negligence Claims | Alan Goldfarb, P.A.

Motorcycle Accidents and Florida’s PIP Exclusions

Jay Butchko — Fri, 23 Oct 2015 13:00:09 +0000

The number of new motorcyclists on roads and highways in Florida increases each year. Unfortunately, new motorcyclists are more likely to be involved in motorcycle accidents due to their inexperience on the road. Navigating the aftermath of a motorcycle accident is complex. This complexity becomes very clear when attempting to navigate insurance claims. Personal injury protection benefits, also known as “PIP”, a part of insurance policies, will not cover injuries that result from a motorcycle accident. While Florida law requires all motor vehicles have PIP, motorcycles are specifically excluded from Florida’s PIP statute.

Medical Payment Insurance can Cover Some Expenses

Fortunately, motorcyclists can purchase optional medical payment coverage, which will cover a motorcyclist’s accident-related medical expenses. Motorcyclists are required to have at least $10,000 in medical insurance coverage. Additionally, if a motorcyclist has private health insurance that will provide benefits for injuries from a motorcycle accident, then the health insurance can be used to meet the $10,000 requirement. A motorcyclist’s passengers are also excluded from using PIP and must have their own medical coverage insurance. Passengers are not required to have insurance if the person operating the motorcycle has coverage that provides medical coverage to passengers.

Motorcyclists Can File a Lawsuit Against the At Fault Driver

While motorcyclists are excluded from recovering losses from the at fault driver’s PIP, a motorcyclist may file a personal injury lawsuit for recovery against the at-fault driver. Filing a lawsuit may be the only way a motorcyclist will be able to obtain compensation required to fully recover from an accident. If an accident victim suffers from permanent injuries, scarring, disfigurement, or is killed, insurance typically will not provide enough coverage for current and future expenses. In the case of death, the motorcyclist’s surviving family should consider pursuing a wrongful death lawsuit to obtain compensation from the at-fault driver.

Not Wearing a Helmet During an Accident

A motorcyclist may file a lawsuit even if the rider was not wearing a helmet. In Florida, motorcyclists are not required to wear a helmet if they are over 20 years old. The law only requires motorcyclists to wear eye protection and have medical payment insurance coverage on their motorcycle. However, it is important to remember that not wearing a helmet can still be examined when a motorcyclist is injured in an accident. This is especially true if the motorcyclist suffers a head injury. In a lawsuit, the motorcyclist’s failure to wear a helmet could be used to calculate comparative fault resulting in reduced damages.

Motorcycle Accident Victims Deserve Compensation

Navigating Florida’s complex comparative fault and PIP rules can be exhausting for a motorcyclist injured in an accident. At the office of Alan Goldfarb, P.A., our personal injury lawyers will help you navigate Florida’s complex laws and seek the compensation you deserve for your injuries. The Miami personal injury attorneys at our office can provide you with advice and counsel on your legal options after an accident. Contact us to schedule a free consultation with our office by calling (305)-371-3111.

Florida’s Dog Bite Law & Children

Jay Butchko — Tue, 13 Oct 2015 16:18:16 +0000

The Centers for Disease Control and Prevention reports that dogs bite 5.4 million Americans each year. Often times, dog bites result in injuries that call for extensive care. Children are more likely than adults to be bitten by a dog. In fact, children between the ages of five and nine are common victims of dog bites. Before navigating a claim for injury, parents of a child bitten by a dog should understand Florida’s complex dog bite laws.

Florida Bite Law is Strict Liability

Florida dog bite law follows a theory of strict liability. This means that the injured person does not have to prove that they may have caused the dog to bite. The dog owner may be liable if his or her dog bit someone. This is true even if the owner had no prior knowledge that the dog might bite. Interestingly, in Florida dog owners are responsible for injuries suffered by a dog bite victim whether the victim is a person or another animal. The rules regarding dogs bits are slightly different when a child is involved.

Important Considerations: Comparative Negligence?

Florida does consider comparative negligence when a child sustains a dog bite injury. First a court must determine whether a child provoked a dog and caused the accident. If a child is under the age of six, the Florida courts presume that child was not capable of being negligent. If a child is over six, a court will decide whether the child was capable of understanding the danger and avoiding the injury. If a court finds a child caused the dog bite the result could be decreased compensation for the child’s injury. Similarly, a court will also determine whether a parent failed to properly supervise their child. This means that the child’s parent could be the cause of the injury.

What is the dog was dangerous?

These considerations may matter less to a court if a dog was a known “dangerous dog”. Florida’s dangerous dog law requires owners to take special actions. If a dog is dangerous, the dog must be kept in a secure area that has warning signs. The owner must restrain the dog with a muzzle and a harness or leash. Injuries caused by a dangerous dog may also result in criminal charges against the owner.

Dog Bite Victims Deserve Compensation

Nearly one out of five dog bites becomes infected. Furthermore, a dog bite victim may need physical therapy or psychological care. Parents of children bitten by a dog must take time away from work to ensure their child receives the care that they need. Additionally, insurance may not cover all of the expenses related to a child’s injury. If your child is the victim of a dog bite in Miami, then you will need assistance from a personal injury attorney with experience with navigating Florida’s dog bite injury laws.

The personal injury lawyers at our office will use their experience to help you ensure your child has a full recovery and seek compensation for your losses. Please call Alan Goldfarb, P.A. at (305) 371-3111 or call toll-free at (866)936-9761 to discuss your case.

Understanding Comparative Negligence Claims in Florida

Jay Butchko — Wed, 01 Apr 2015 15:28:54 +0000

Scenario: Someone hits your car with their vehicle. You injure your neck and require long-term hospitalization and miss months of work. You sue the driver of the car that hit you for negligence to recover your expenses, but the driver claims you were on your cell phone and that you are therefore partially responsible for the accident. This is the theory of comparative negligence. If you are partially responsible for your injury and receive a monetary award from the court, your recovery will be reduced by the amount you were decidedly at fault.

The Affirmative Defense of Comparative Negligence

A complaint is the document that begins the legal process in civil litigation cases. The victim, known as the plaintiff, files the complaint, and the defendant, the alleged wrongdoer, has a finite amount of time to answer. The complaint lays out what the defendant allegedly did or did not do to lead to the victim’s injury. In the defendant’s answer, they can assert “affirmative defenses”. Affirmative defenses are a defendant’s way of essentially admitting that the allegations in the complaint are true, but that the defendant nonetheless should not be held responsible due to some other factor. One of the most common affirmative defenses in negligence cases is comparative negligence.

Comparative and Contributory Fault Methods

There are three ways jurisdictions deal with comparative fault:

Contributory Negligence: If the plaintiff contributed at all to the accident, there will be no recovery.
Partial Comparative Negligence: There will be no recovery if one party is found more negligent than the other party (more than 50%)
Pure Comparative Negligence: All negligent parties can recover.

The latter (pure comparative negligence) outlines the current law in Florida. Back to the example: if the matter goes to trial and the judge decides that the plaintiff was 60% responsible for the accident and the defendant only 40% responsible, the plaintiff will still recover for the 40% the defendant was at fault. This is a favorable method for addressing comparative negligence issues since both parties will gain/lose quite literally what they contributed to the accident.

Affirmative Defense Implications

If the defendant asserts an affirmative defense in the answer, it does not mean that the plaintiff can no longer prevail. Even if comparative negligence is a sound legal defense in that particular case, as we saw above, the award will merely be limited, not barred like it may be in some other jurisdictions.

Miami Auto Accident Injury Attorneys

Deciding to file a lawsuit after an accident or injury can be a big decision. At Alan Goldfarb, P.A., our team of experienced auto accident attorneys knows how to strategize everything from filing the initial lawsuit all the way through trial. We have the knowledge necessary to vigorously advocate for our clients with regards to affirmative defenses to ensure that you receive the maximum amount of compensation that you are entitled to by law. If you or anyone you know has been injured or killed in an auto accident in the greater Miami, Florida area, do not hesitate to contact our office to learn more about your legal rights.