What is the Tort Threshold in a Florida Auto Injury Case? Pain and Suffering

The tort threshold is the requirement that an injured person must have a certain type of injury in order to recover damages for pain, suffering, mental anguish, and inconvenience in certain types of vehicular accidents in Florida.

Tort Threshold Is Also Called the “No-Fault Threshold”

The ability to meet the tort threshold is also known as having a “threshold injury” or “piercing the tort threshold”.

Often Need a Threshold Injury To Get Pain & Suffering $ If Other Motor Vehicle Has PIP

In order to recover damages in tort against the owner or operator of a motor vehicle (with respect to which security has been provided as required by Florida Statutes ss. 627.730–670.7405), the victim may recover damages for pain, suffering, mental anguish, and inconvenience because of bodily injury, only if the injury consists of 1 of certain injuries (see below).

Which Injuries Make Up the Tort Threshold?

To meet the tort threshold, you need 1 of these injuries:

(a) Significant and permanent loss of an important bodily function.

(b) Permanent injury within a reasonable degree of medical probability.

(c) Significant and permanent scarring or disfigurement.

(d) Death.

You meet the tort threshold if you have any of the above injuries.

You Have Right to Sue for Pain & Suffering If You Have 1 of The Above Injuries

In Florida, you keep your tort rights for the recovery of non-economic damages if the claimant has one of the above permanent injuries or if the injured person dies.

Non-economic damages are pain, suffering, mental anguish, inconvenience and loss of enjoyment of life.

Purpose of Tort Threshold is To Limit Less Serious Injury Lawsuits

The tort threshold’s purpose is to limit tort lawsuits – if PIP covers the economic loss – when the injury is less serious.

Economic loss primarily consists of medical bills, lost wages, reimbursement for mileage.

Threshold is 1 Reason Why Getting $ for Pain & Suffering May Be Hard

The ability to meet this high standard is one reasons why it may be difficult to get money for pain and suffering in many Florida car accident cases.

Can Get $ for Medical Bills & Lost Wages Without Meeting the Tort Threshold

An injured person does not need to meet the tort threshold to recover economic damages.  These include out of pocket medical bills, lost wages, etc.

Do You Need a Threshold Injury for Uber Accidents?

If another driver’s negligence caused the crash, an Uber driver doesn’t need a threshold injury if the Uber was engaged in a ride.  This is because the Uber driver is not entitled to PIP.  Thus, the Uber driver doesn’t get the tort threshold defense.

As an example, I settled a injury claim for $260,000 for an Uber driver was in an accident in Miami, Florida.  At the time of the crash, he had a passenger.  Thus, he wasn’t entitled to PIP through Uber’s insurer, Progressive.

The Uber driver didn’t have PIP insurance since he didn’t own a car.  We didn’t need a threshold injury against the at fault driver.

An Uber passenger who is hurt doesn’t need a threshold injury in his personal injury claim against the Uber driver.  Again, this is because the Uber doesn’t have PIP.  Thus, the Uber driver doesn’t get the tort threshold defense.

If the Uber passenger is covered by PIP, then the passenger likely needs a threshold injury in his case against the other driver (not the Uber driver) if the other driver’s negligence caused the crash.

Let’s assume an Uber driver is logged into the app, but not engaged in a ride.  Most people injured by the Uber will likely need a threshold injury in your claim against the Uber driver.  However, there are many exceptions to the need to have a threshold injury.

One example is if an Uber caused a motorcyclist’s injury, the motorcyclist never needs a threshold injury against the Uber driver to be entitled to money for pain and suffering.   This is because the motorcyclist isn’t entitled to PIP.  Thus, the Uber driver never gets the tort threshold defense in the motorcyclist’s injury case.

However, let’s assume the motorcyclist is making a uninsured motorist insurance claim against a Florida auto insurance policy.  Then, the motorcycle rider will likely need a threshold injury.

Lyft Passenger Needed Threshold Injury To Get Pain and Suffering Compensation

In a $70,000 settlement for a Lyft passenger who was hurt in a crash, he needed a threshold injury in order to get money for pain and suffering.  This is because the other car had PIP.

A passenger of a Lyft car who is hurt will often need to meet the tort threshold to get compensation for pain and suffering.

You Don’t Need to Meet the Tort Threshold in Many Vehicle Accidents

There are many situations that address whether the injured person doesn’t have to exceed the tort threshold in order to recover non-economic damages in certain types of Florida vehicular accident cases.

Below are a few situations where you don’t need to have a threshold injury to qualify for pain and suffering compensation.

If Hurt While Not Occupying a “Motor Vehicle“; No Tort Threshold for Pain and Suffering $  

Examples of vehicles that aren’t considered “motor vehicles” in Florida are:

Motorcycles

Big Scooters/Mopeds

Taxis

County or city buses, lawnmower-tractor^1, and many other types of vehicles aren’t considered “motor vehicles” for purposes of the tort threshold.  Thus, if a taxi driver’s negligence caused your accident, you don’t need a threshold injury in your case against the taxi driver.

Online Settlement Calculators Don’t Consider Tort Threshold; Don’t Use for Soft Tissue Injuries

I don’t use my Florida car accident settlement calculator if the only injury that a claimant suffered is a soft tissue injury such as neck or back pain with no objective findings.

This is because many juries won’t agree that a soft tissue injury is a permanent injury.  If they don’t say that your soft tissue injuries are a permanent injury, then they aren’t allowed to award you money for pain and suffering.

No Loss of Consortium Claims if You Don’t Meet the Tort threshold.²

If someone’s negligence causes injury to another in certain types of Florida vehicular accidents, and the injured person is unable to meet the tort threshold, then the injured person’s spouse cannot recover loss of consortium damages.

No Threshold Injury Needed to Sue for Punitive Damages³    

Punitive damages are in addition to the economic and non-economic damages.  In Florida auto accident cases, punitive damages are most commonly awarded if a drunk driver causes your injury.

You may also be able to get them if the careless driver was on a cell phone when the crash happened.

GEICO Pays $95,000 to Man Hit by DUI Driver in Broward County, Florida (Herniated Disc)

A man was hit by a drunk driver. He claimed that the crash caused a herniated disc.

GEICO insured the DUI driver.  GEICO paid $95,000 to settle.

I represented the injured man.

Floridians Need To Meet Tort Threshold in Claim Against Florida Uninsured Motorist Insurance

In a Florida resident’s injury case against a Florida uninsured motorist insurance policy, the Floridian will likely need a threshold injury in order to recover money for pain and suffering.  This is true even if the Florida resident was on a motorcycle, or was hit by an Uber or Lyft car.

This is because Florida statute 627.727(7) requires a threshold injury, unless the Florida UM policy doesn’t say that a threshold injury is required.  Sternberg v. Allstate Insurance Co., 900 So.2d 732 (Fla. Dist.Ct.App.2005)

Nonresidents May Not Need To Meet No-Fault Threshold To Get Money for Pain and Suffering…If They Have UM.

Florida uninsured motorist (UM) insurance doesn’t cover you, in most cases, for your pain and suffering unless you meet the tort threshold requirement.  Sternberg v. Allstate Insurance Co., 900 So.2d 732 (Fla. 4th DCA 2005).

However, if you live in a “fault state” and an uninsured vehicle driver’s negligence causes your injury in Florida, you likely don’t have to meet the no-fault threshold in order to get money for pain and suffering from your UM insurer.  Dauksis v. State Farm Mutual Automobile Insurance Co., 623 So.2d 455, 456 (Fla. 1993). “Fault states” do not have No-fault insurance.

Here is a map that shows states with “Fault” insurance laws: 

In a soft tissue injury or smaller injury case, the pain and suffering component of a nonresident’s (from a fault state) case may be worth more if he or she has out of state UM insurance and the careless driver is uninsured.

This is because your out of state UM car insurance policy likely won’t require that you have a threshold injury in order to get money for pain and suffering.  This assumes the out of state insurance is from a state that doesn’t have no-fault insurance.

Nonresidents of Florida May Have to Meet the Threshold if They Get PIP

If a nonresident is not covered by PIP and he struck while he or she is a pedestrian in Florida, the injured person doesn’t need to meet the threshold requirement.

Tort Threshold Often Results in Lower Offer

If a car insurance company believes that your injuries don’t meet the tort threshold, you will usually get a smaller offer.  

This is because they won’t offer money – or they’ll offer a smaller amount of money – for the pain and suffering component of your claim.

What is the Time Limit to Sue if You Have to Meet the Tort Threshold?

In a Florida car accident case, the time limit to sue depends on several things, including but not limited to whether the:

• careless party is a private individual/company or governmental entity; and
• injured person is making a claim against the careless driver, or an uninsured motorist (UM) insurance claim
• possibly other factors.

Driver Gets $100,000 for Herniated Disc from Car Crash; No Mention of Permanent Injury

A lady was driving her car in Broward County, Florida.  A car crashed into her car.

She claimed that the crash aggravated her pre-existing herniated disc.  She also had a small fracture to a bone that didn’t need treatment.

The doctor didn’t state on a report that she had a permanent injury.

GEICO insured the careless driver.  GEICO paid its $100,000 BI insurance limits shortly after the crash.

Driver Hit By Truck Gets $100,000 for Herniated Disc

See a $100,000 settlement for a client who claimed a herniated disc in his neck when his car hit a truck that cut him off in Homestead, Florida.

Defense Gets to Hire Doctor to Say You Don’t Have a Threshold Injury

If you sue the careless driver or other responsible parties, they can hire a doctor to review your records and examine you.  These defense doctors often say that your injuries aren’t permanent.

This is true even if your treating doctor says that you have a permanent injury.

What is the worst part?

Jurors can choose to believe whichever doctor they want.  If they believe the defense doctor, you might not get a dime for pain and suffering.

$20K Settlement for Finger Discoloration After Rollover Car Accident (Homestead, Florida)

Finger discoloration might get an insurance company to pay you for pain and suffering even if a doctor doesn’t say that you have a permanent injury.

That is exactly what happened in this case.  Here is a short video about the settlement:

In that claim, I didn’t have any medical records that said that my client had a permanent injury.

However, I argued to Progressive Insurance that they needed to pay the $20K insurance limits because my client lost some pigmentation (color) and sensation in his finger.

After some hesitation, Progressive paid me the at fault driver’s $10K limit.  They also paid my client’s $10K uninsured motorist insurance limit.

GEICO only offers $3,500 to crash victim who claimed permanent injuries

This isn’t my case.  

A DUI driver hit a lady who was driving her car.  Her doctor said that she suffered a permanent injury from the car accident.

Her Own Doctor Said She Had Permanent Injuries

He said that she had an overall 23% permanent impairment rating to the body as a whole.

He also said that continued medical care costs would be approximately $3,000 per year (which included doctor visits, medication, physical therapy, a TENS unit, epidural blocks, and home therapy.

Her doctor said that she might consider surgery for her elbows, which would cost approximately $5,000 each.

Even though doctor said injuries are permanent, GEICO only offered $3,500

GEICO disagreed and offered $3,500 to settle.  Its offer was based on its conclusion that her injuries were not permanent.

She Had Neck Surgery and Got a $539,800 Verdict

She ended up having neck surgery and got a verdict of $539,850.00.  Insurance companies aren’t always right with their evaluations.

Footnotes

¹ Miller v. Allstate, 560 So.2d 393 (Fla. 4th DCA 1990)

² Faulkner v. Allstate Ins. Co., 333 So.2d 488 (Fla. 4th DCA 1976).

³ Nales v. State Farm Mutual Automobile Insurance Company, 398 So.2d 455 (Fla. 2d DCA 1981); rev. den. 408 So.2d 1092 (Fla. 1981).

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Editor’s Note: This post was originally published in February 2015 and has been completely revamped and updated.