My Actual Case: $110,000 Settlement for a pedestrian. A car hit her. She suffered an orbital fracture.
This settlement is before deduction for attorney’s fees and expenses. Most cases result in a lower recovery. It should not be assumed that your case will have as beneficial a result.
Imperial Fire & Casualty insured the driver.
Imperial Fire & Casualty is a National General Company.
The accident happened in Homestead, Dade County, Florida.
Her orbital (bone above the eye) fracture required surgery. Her husband had underinsured motorist (UIM) insurance with Progressive.
Injuries: My client was thrown to the ground and sustained facial injuries and minor head trauma. Fire rescue (ambulance) came to the scene and airlifted to Ryder trauma center.
She was stable when she was transported. She suffered an orbital fracture resulting in surgery with hardware placed in her face/head to the left of her eye.
You can see the facial bones in the illustration below.
She also suffered bruising throughout her body.
Fault: The actual accident diagram is below. The investigating police officer stated on the report that my client was walking southbound in the cross walk as she crossed the street.
A vehicle was approaching a green signal. The report said that my client walked into the path of the vehicle causing her to be struck. I believe that the driver was at fault. I discuss this further below.
Total Available Insurance
Personal Injury Protection (PIP) auto insurance: $10,000. This paid for some of my client’s medical bills. In Florida, PIP for medical bills is paid directly to the medical providers.
It was paid because my client was a pedestrian and was hit by a vehicle in Florida, so her PIP from her own car paid for 80% of her medical bills up to $10,000. Attorneys are not allowed to take a fee on this coverage.
Bodily injury (BI) liability auto insurance of at-fault vehicle: $10,000 through Imperial Fire & Casualty Insurance Company (RAC).
Underinsured motorist (UIM) auto insurance: $100,000 through my client’s husband’s auto insurance policy with Progressive Auto Insurance.
Medicaid: My client had Medicaid so we had to pay back Medicaid from the total settlement for the medical bills that it paid. But the good news is that the Medicaid lien was small and left my client with no owed medical bills.
I sent the driver of the at-fault car an affidavit to complete and he swore under oath that he was not working at the time of the accident.
Total Settlement: $110,000.
My thoughts: This settlement is a perfect example of why, in certain situations, you should not worry too much about who the investigating officer thinks caused the accident.
Even though the crash report listed my client as the cause for the accident, she still had a good case. This case did not go to trial, but in Florida if it did, the jury would not get to see the crash report because it is inadmissible according to the rules of evidence.
If I would have had to argue fault, I would have said that as soon as my client was in the cross walk she “owned the cross walk” and thus was not at fault. I invite you to learn more about when a driver or vehicle is at fault for hitting a pedestrian.
Even though the police officer blamed my client for the accident, a driver still has a duty to act reasonably. My argument would have been that the driver had a clear view at the time of the accident.
There were no cars to his right and no visual obstructions. I would have argued that the driver had plenty of time to see my client.
She crossed an entire lane before his car struck her. I would have subpoenaed his cell phone records to see if he was using a phone at the time of the accident.
Florida is a comparative fault state which means that the amount of damages (pain and suffering, medical bills, lost wages) that you may be able to get is reduced by your fault in the accident.
Your fault is one of the many things that can lower the value of your accident case.
So just as an example, let’s say that my client was 50% at fault (and I am not saying that she was) for this accident. Then her damages would be reduced by 50%. So if the full settlement value of her injury case was $200,000 (and I am not saying that it was), then she would receive $100,000.
I arrived at this number by reducing the hypothetical full value ($200,000) of the case by her percentage of fault (50%).
There was limited insurance in this case which “may” have resulted in a smaller settlement than had there been additional insurance. I say “may” because there is always the chance that we could have gone to trial and gotten zipped (nothing).
But the reality is that most cases settle, and it is in the best interest of a liability insurance company to settle a personal injury case than “roll the dice” at trial. Fortunately, my client’s husband had UM/UIM coverage on his auto insurance policy. UM/UIM is not required in Florida.
As soon as I started working on this case, I let Medicaid know that my client had a personal injury case against an at-fault party. You should notify Medicaid of your case as soon as possible because then they can open a claim file and you won’t delay settlement of the case later on.
If you have Medicaid, once you have settled your case, you should try to pay Medicaid as quickly as possible. This is especially true if you are still receiving medical treatment.
The sooner that you advise Medicaid of a settlement, then the sooner they will give you their lien (right to get paid from the settlement) amount and their lien will not continue to increase. If there is limited liability insurance, then you will get less money as Medicaid’s lien increases.
You should also note that if your total damages (medical bills, lost wages, and pain and suffering) are bigger than the settlement amount, you may have some arguments to the court to get Medicaid to reduce its lien.
If Medicaid has a small lien, it is not worth going through this process.
If the driver had been working at the time of the accident, his employer would have also been responsible to pay the pedestrian’s damages (medical bills, lost wages and pain and suffering).
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