Can You Get Paid for Pain and Suffering in Florida Car or Truck Crash?

If someone’s negligence caused your injury in a Florida car or truck crash, “Can you get money for your pain, suffering, mental anguish, and inconvenience?”

Maybe. Let me explain.

(Note: You may also be able to recover many types of damages other than pain, suffering, mental anguish, and inconvenience but that is outside the scope of this article.)

In any claim of tort brought against the owner, registrant, operator, or occupant of a motor vehicle, with respect to which security has been required by ss. 627.730-627.405 or against any person or organization legally responsible for her or his acts or omissions an injured person may recover damages in tort for pain, suffering, mental anguish, and inconvenience arising out of the ownership, maintenance, operation or use of a motor vehicle only if the injury consists in whole or in part of:

(a) Significant and permanent loss of an important bodily function
(b) Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.
(c) Significant and permanent scarring or disfigurement.
(d) Death.  (You have rights if your family member is killed in an accident in Florida.) Florida Statute 627.737(2)

What is the Tort Threshold?

The need to exceed one of the above criteria is known as the tort threshold, threshold injury or piercing the tort threshold.  This law uses the word “motor vehicle” with respect to which security has been provided as required by ss. 627.730–627.7405.  Find out what is considered a “motor vehicle” in Florida.

Warning! While the street definition of “motor vehicle” would include most vehicles that you can think of, under Florida law it does not. There are many vehicles that are not considered “motor vehicles” in Florida and thus are not subject to the tort exemption and limitation of right to sue as mentioned above.

In order to recover damages in tort for pain, suffering, mental anguish, and inconvenience in the above scenarios, your injury does not have fall into more than one of the categories above. It just has to meet one of them.

Example – Negligent Operator Driving a “Motor Vehicle” – Permanent Injury Required

Michelle was driving her car in Miami when she ran a red light and hit Sara.  Sara suffered a wrist fracture and had surgery days later.

Sara had a scar on her wrist.  Sara claimed that the Michelle’s negligence caused Sara’s injury.

USAA was listed on the Florida crash report as Michelle’s auto insurer.

We sent a letter to USAA requesting a disclosure of certain information required pursuant to Florida Statute 627.4137.  USAA sent us the required information which stated that Michelle had a liability insurance coverage with USAA in the amount of $100,000/$300,000.

Maria brings a tort claim against the Michelle, the driver of a motor vehicle (in this case a car) and against an organization legally responsible for her (in this case Michelle’s employer).  

Maria (the injured person) may recover compensation for pain, suffering, mental anguish, and inconvenience arising out of the operation or use of a motor vehicle only if her injury consists in whole or in part of:

(b) Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.

(c) Significant and permanent scarring or disfigurement.

We hired investigator Elena Dyer to speak with the police officer who witnessed the crash.  We also submitted Maria’s medical bills, records and pictures of her scar to USAA.

Sara’s medical bills were significantly less than $100,000.  USAA sent us the check for the $100,000 limits of bodily injury insurance along with a release.

Although USAA did not have a document from Sara’s doctor stating that she had a Permanent injury within a reasonable degree of medical probability, they still paid the limits.

Why Did USAA pay the $100,000 BI Insurance Limit?

USAA paid the $100,000 limit because they knew that:

1. There was a strong likelihood that a doctor will state that her wrist surgery with the insertion of hardware (plate and screws) is permanent injury within a reasonable degree of medical probability.  This is usually the case when an injured person has hardware inserted into their body.

2. Her scarring could be considered significant and permanent scarring.

The insurance adjuster knew that if our Sara’s injury consisted of either one of those or both she may recover damages for pain, suffering, mental anguish, and inconvenience because of bodily injury.

We did not deposit the check or have our client sign the release.  We then sent a financial affidavit and resident relative affidavit and vicarious liability affidavit.

It was only then that USAA told us that Michelle was working for her employer.  Old Dominion Insurance Group insured her employer.

Old Dominion is part of Main Street America Group.

We sent a letter to Old Dominion Insurance Group requesting a disclosure of certain information.  They responded in writing by stating that their insured carried $1,000,000 in liability insurance coverage.

Employer Is Liable for Employee Driver Even if He/She Used His/Her Own Vehicle

Under the doctrine of respondeat superior, if at the time of the occurrence the employee’s conduct was within the scope of his or her employment, the employer will be liable for the employee’s negligence even if the employee was operating his or her own automobile. See, e.g., Merwin v. Kellems, 78 So.2d 865 (Fla. 1955); Standley v. Johnson, 276 So.2d 77 (Fla. 1st DCA 1973).

An employer can be one of the many potential defendants in an auto accident case.

Old Dominion paid $100,000.  Thus the case settled for $200,000.

USAA and Old Dominion sent us their settlement releases.  However, I properly drafted the settlement release so that our client’s rights were protected. 

This includes if you’re a non-resident of Florida and you’re injured as a passenger in a Florida automobile crash with another Florida automobile. Johnson v. Liberty Mut. Ins. Co., 297 So.2d 858 (Fla. 4th DCA 1974).

If you are in a rental car that is rented in Florida, you need to show that you have a permanent injury in order to have a chance at getting compensation for pain and suffering.

Situations Where Permanent Injury Is Required – category “b” above

The reality is that in most car accidents, there are two cars involved.  Thus, if you were a passenger in a car and the crash was caused another car, your injury would have to generally meet one of the criteria in categories a-d above.

If you entire medical treatment consisted of one hospital visit with complaints of neck pain will usually not get you any money for pain and suffering.

Now, if you treat with a doctor for a few months and your pain does not go away, the doctor may believe that you have a permanent injury and you may be entitled to money for pain and suffering.

If Part of Your Injury Involves a Permanent Injury, Can You Get Pain and Suffering Compensation for All of Your Injuries Related to the Crash?

Yes.  Wald v. Grainger, 64 So.3d 1201, 1205-06 (Fla. 2011).

As long as part of the bodily injury arising out of the motor vehicle accident involves a permanent injury “within a reasonable degree of medical probability,” the claimant can recover noneconomic damages related to his pain, suffering, mental anguish, and inconvenience for all of the injuries related to the accident.

Howard Wald, Jr., was involved in a car accident with Sam Felos, who admitted his fault for the accident.  This isn’t my case.

Wald claimed injuries to his neck, back, right arm, foot, and thigh from the collision. He sued for  compensation for his neck and back injuries.

Wald didn’t seek compensation for his thigh injury because it caused no ongoing chronic pain.

Since the defendant admitted fault, the only issues the jury had to consider were causation, the permanency of Wald’s injuries, and compensation.

Wald’s doctor, Dr. Jackson Tan, said that Wald’s injuries, including his neck, back, right elbow, and right thigh injuries, were permanent and connected with the accident.

Defense Doctor Agreed He Had Permanent Thigh Numbness

The defendant’s expert physician, Dr. Howard Hogshead, testified that Wald had permanent right thigh numbness.  Dr. Hogshead gave Wald “the benefit of the doubt,” that condition was related to the collision.

He also stated his opinion that Wald did not sustain permanent neck or back injury as a result of the accident.

Before the case was decided by the jury, the court (via a directed verdict) found that the thigh injury was permanent.  The jury wasn’t asked if any of Wald’s other injuries were permanent.

The jury entered judgment for Wald.  They awarded him over $1 million for his injuries.  The Florida Supreme Court approved the verdict.

Basically, the jury may have awarded money for his pain and suffering from his other injuries that weren’t permanent.

However, as long as he had one permanent injury, he could also get compensation for other injuries that may not have been permanent.  As mentioned above, his permanent injury was his thigh injury.

Other Categories (a,b,d) Scarring, Death, Loss of a body function

If you were a passenger in a car and the car was hit by another car, you may be able to get money for pain and suffering if you have significant and permanent scarring.

You may also be able to get money for pain and suffering if you lose an important bodily function, such as the loss of your spleen. And of course, your survivors are entitled to pain and suffering damages if you are killed in an accident.

It’s Tougher to Get Money for Pain and Suffering in Minor Impact Smaller Injury Cases

In Florida, it is tougher to get money for pain and suffering if you are in a minor impact smaller injury case because you may need to meet the tort threshold in many instances.  Often times, a jury will find that your injury does not meet the tort threshold.  If that happens, they are not legal allowed to award you any money for pain and suffering.

Some examples of where it is more difficult to meet the tort threshold is if your injury is a bulging disc, herniated disc, neck pain, back pain, knee pain or general pain.

That being said, I settled a South Florida car accident case for $95,000 where my client claimed a herniated disc.  The bulk of that settlement was for pain and suffering.

That one just one of hundreds of Florida car accident cases where we were awarded money for pain and suffering.

Vehicular Accidents where Threshold Injury Is Not Required to Recover for Pain and Suffering

On the other hand, there are some vehicular accidents where you do not to have to show one of the injuries described in Florida Statute 627.737(2) in order to recover damages for pain, suffering, mental anguish, and inconvenience in a tort action brought against the owner, registrant, operator, or occupant of a vehicle.  

This is because these vehicles don’t do not meet the definition of motor vehicle.  

So if you have a tort claim brought against the owner, registrant, operator, or occupant of one of those vehicles below, or against any person or organization legally responsible for her or his acts or omissions, an injured person may recover damages in tort for pain, suffering, mental anguish, and inconvenience arising out of the ownership, maintenance, operation or use of that vehicle even if the injury does NOT consists in whole or in part of:

(a) Significant and permanent loss of an important bodily function.
(b) Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.
(c) Significant and permanent scarring or disfigurement.
(d) Death. [You have rights if your family member is killed in an accident in Florida.]

Vehicles That Aren’t “Motor Vehicles” Under Florida Law

The vehicles below aren’t motor vehicles for which security has been provided by ss. 627.730–627.7405.

• Motorcycle
• Moped
• Taxicab
• Mobile Home
• Government-owned vehicle used for 5 or more passengers (mass transit) (e.g. Miami-Dade county public bus)
• Farm Tractor or Farm Trailer (subjecting to licensing exception)
• Vehicles used only on private property
• Dune Buggies, Go-Carts, recreational vehicles that are not used on roads
• Golf Carts
• Off-road construction machines (rollers, graders, bulldozers)
• Vehicles on tracts (e.g. railroad)

When You Don’t Need a Threshold Injury in Florida

You don’t have to show that you have one the injuries listed in Florida Statute 627.737(2) – in order to recover money for pain and suffering if, in Florida:

11. A taxi driver’s carelessness causes your injury.
12. A driver of another vehicle caused your injury while you’re a passenger in a taxi, and you’re not entitled to PIP. Check out how to get your medical bills paid after a taxi accident in Florida.

12a. A driver of another vehicle caused your injury while you’re driving a taxi, and you’re not entitled to PIP. Utvich v. Felizola, 742 So. 2d 847 – Fla: Dist. Court of Appeals, 3rd Dist. 1999.
13. A public bus hits you.
14. Someone’s careless causes your injury while you are on a motorcycle. Learn how to get your medical bills paid after a motorcycle crash in Florida.
15. You are a nonresident of Florida who is struck by a car while you are a pedestrian.
16. You are a passenger in a public bus that was struck by a car, truck or other vehicle.
17. You’re driving a city or county bus, and a car or truck hits you.  Santiagoherrera v. Stout, 470 So.2d 718(Fla. 5th DCA 1985)
18. You are a driver or passenger of a scooter than was more similar to a motorcycle than a scooter.
19. You’re driving a truck or car and it hits a pothole in a road or parking lot maintained by the county or any business. Tomlinson v. Orange County, Fla., 785 F. 2d 933 – Court of Appeals, 11th Circuit 1986

Example Where You Don’t Need a Permanent Injury

For example, if a taxi ran a red light and struck you, a jury could give you money for pain and suffering even if your entire medical treatment consists of one hospital visit.

In Florida, there is no limit (cap) on the amount of money that you can get for pain and suffering damages in a car accident case. But you have to prove that you have damages that justify getting money for pain and suffering.

Now that you know when you can recover damages for pain and suffering in a Florida vehicular accident case, you may want to know how much your pain and suffering is worth.

Pain and Suffering Compensation if Your Car Wasn’t Insured

If you owned a car in Florida at the time of the crash in Florida, and it wasn’t insured, you can still make a claim for pain and suffering compensation.

This is, of course, subject to the laws mentioned entire article.

Will Uninsured Motorist Insurance Pay for Pain and Suffering From a Car Accident?

If an uninsured motor vehicle caused your injury, then uninsured motorist (“UM”) insurance may pay you compensation for your pain and suffering.

You may be entitled to UM insurance coverage from your own car, or from a family member’s car, or from your employer’s vehicle.

Using an Online Settlement Calculators for Calculating Pain and Suffering 

Don’t Use an Online Settlement Calculator to Calculate Pain and Suffering in a Florida car accident case.

I strongly suggest that you do not value the pain and suffering component of a Florida car accident case based on an online settlement calculator in a Florida.

There are many reasons why settlement calculators may not work for Florida car accident cases.  This is true whether you are looking at my Florida car accident injury settlement calculator or one that someone else made.

Online settlement calculates are even less useful in a Florida minor impact smaller injury case because you may need to exceed the tort threshold to have a chance at getting any money for pain and suffering.

Injuries Where You May Have a Pain and Suffering Claim From a Vehicle Accident

Herniated Disc

You may be able to get money if someone’s negligence caused your herniated disc in a Florida truck or car crash.  A few of the many cases that I have had where my client claimed a herniated disc (in a Florida car or truck accident) settled for the following amounts:  $210,000, $100,000, $100,000, $100,000, $95,000.

Those settlements included money for pain and suffering.

Shoulder Injury (e.g. Rotator Cuff or Labrum Tear, etc.)

You may be able to get money for pain and suffering if a driver’s carelessness caused your shoulder injury in a Florida car or truck accident.  We have settled Florida rotator cuff tear and labrum tear car or truck accident cases for $210,000, $147,000, $65,000, $57,000, $10,000.

Those settlements included money for pain and suffering.

Broken Hand or Fractured Wrist

Find out if you can get money for pain and suffering if a Florida car or truck driver’s negligence caused your hand or wrist fracture.  I have had Florida car or truck wreck settlements, which included money for pain and suffering for a broken wrist or hands, in the amounts of: $200,000, $135,000, $35,000, $10,000 and more.

Did someone’s carelessness cause your injury in a Florida car crash or other type of accident?

See Our Settlements

Check out some of the many Florida injury cases that we have settled, including but not limited to car accidents, truck accidents, motorcycle accidents, bike accidents, pedestrian accidents, taxi accidents, drunk driving (DUI) accidents and much more.

We want to represent you if you were injured in an accident in Florida, on a cruise ship or boat. If you live in Florida, but were injured in another state we may also be able to represent you.

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Editor’s Note: This post was originally published on March 2013 and has been completely revamped and updated.