Crash Recovery—A Personal Story
In January 1999 I was hit by a tow truck on SR 25 just north of Clermont in Lake County. I was fortunate that my physical injuries were healed within a year; however, negotiating Florida’s legal system, has been a four-year process.
by Duke Breitenbach
Introduction: Crash Recovery can take physical, mental and financial toll on riders
Most road cyclists eventually experience a crash and the resulting physical, mental and financial recovery process. Hopefully they will be minor incidents that result in no more than a bit of road rash and minor discomfort. For some, however, a crash involves a more serious encounter with a motorized vehicle.
Not only is the injury likely to be more serious, but also it significantly compounds the recovery process.
I was in a crash involving a tow truck in Lake County in January 1999. I was fortunate that my physical injuries were healed within a year.
Negotiating Florida’s legal system, however, has been a four-year process.
Even so, it’s a procedure that must be pursued by every victim of a bike crash involving a motorized vehicle. As I think back on the entire incident, I see many areas that may be of interest to other Florida cyclists. So over the next few issues of the Messenger I will lay them out for your inspection.
“Recovery” in this series will include
- Crash site issues
- Law enforcement issues
- Emergency medical care
- Legal advice
- Follow up medical care
- Physical/Mental recovery
- “Victim” support
- Florida’s NO FAULT insurance
- Obtaining an attorney
- Civil proceedings
From my experience there appears to be an obvious bias against bicyclists in Florida from law enforcement and the legal system. A prime example of this is the case of Ray Howland, a fellow cyclist, who was killed in Lake County in October 1998.
Ray was off his bicycle and standing next to the road—legally, a pedestrian—when he was struck and instantly killed by a motorist. A detailed account of this incident, “Accident at Mount Dora,” was published in the May 1999 issue of Bicycling magazine.
The final outcome was that Ray was dead, and the motorist received a couple of points that he could work off by attending a class. The family decided to not pursue civil charges. It is my opinion that the lack of a subsequent civil suit was not in the best interest of cyclists.
Since it clearly was a case of wrongful death, the motorist’s insurance company would readily have reached a financial settlement.
Although a financial settlement can never compensate for a life, it makes a clear statement to law enforcement, the legal system and the insurance industry.
For example, with the family’s consent a representative could have been appointed to handle the legal procedures with the proceeds used to promote bicycle awareness, education and safety in Florida.
Obviously the first step is to avoid an incident. Abiding by the Florida Statutes (which consider bicycles as vehicles), taking the League of American Bicyclists classes and using good judgment can help keep you from experiencing a crash. Like a pedestrian, a cyclist is “unprotected.” They do not have a “steel box” that surrounds them and provides a margin of safety.
There is no equivalent of a fender bender in bicycle crashes; the cyclist is going to sustain some degree of injury—especially when the crash involves a motorized vehicle. If you are an average cyclist, you don’t ride around thinking about the various aspects of recovery until you are the victim or an observer of an incident.
But being aware of recovery issues and doing some planning can help if you are involved in a bicycle crash. So follow along for the next several issues of the Messenger wherein I will attempt to share some of the wisdom I’ve gained during my four-year adventure through the medical and legal recovery process.
Crash Recovery Begins at the Crash Site
In January 1999 I was hit by a tow truck on SR 25 just north of Clermont in Lake County. I was fortunate that my physical injuries were healed within a year; however, negotiating Florida’s legal system, has been a four-year process.
There were four in the group. We had just finished one of the “Mt. Dora” rides, but starting from the south end of the loop. We were returning to the motel on SR 25 after passing under the Sunshine State Parkway.
Although it is a busy highway, we had determined it was the only way back to the motel. There was a wide shoulder for about half the distance to the motel and then no shoulder for the last half-mile.
We had discussed the return and the need for extreme caution. We elected to stay separated by about a 100 ft to allow traffic to pass and were very conscious to stay on the ‘fog line’ when the shoulder ended.
The tow truck avoided the last rider, just barely missed my wife, continued to drift right and collided with me from the rear.
I was catapulted into the air and fell back into the lane of traffic, none of which I remember.
As you can imagine, there was a lot of confusion at the scene of the crash. Since I was unconscious, my wife had no idea whether I was dead, paralyzed, or alive.
In a matter of a few seconds my helmet saved my life twice: first as I was ejected upward through the truck’s rearview mirror and second as my head hit the pavement. I’ve kept it as a vivid reminder of why everyone should wear his or her helmet.
Lesson 1 – Wear your helmet.
Crash site issues
Since my wife was behind me and witnessed the entire incident, she was quite distraught and totally occupied with my condition.
The other riders arrived at the scene and were involved with the mechanics of “picking up the pieces”— bike remains, shoes, orthotics and glasses—and getting them transported to the motel once it was determined that I was regaining consciousness and could move my limbs.
Stopped motorists using their cell phones made numerous calls to 911. Evidently the dispatcher believed he had numerous cyclists down from all the calls.
Lesson 2 – If you have a cell phone, carry it with you for emergency use.
Lesson 3 – Provide first-aid as appropriate.
The truck driver did pull over and stop . I was told sheriff’s deputies arrived on the scene but took no active role since that highway was not in their jurisdiction.
At least one lady, a nurse, stopped to provide assistance before the medical team arrived. My wife and the other riders remember her stating that it was clearly the truck driver who had drifted right and run into me.
But in the confusion no one remembered to get her name, address or phone number.
No one recorded the names of the responding sheriff deputies either, which may have been important, since we believe they were there when the nurse made her statement regarding probable fault.
Lesson 4 – Someone must have the presence of mind to obtain identification and contact information of all persons that were at the crash site.
Lesson 5 – Do NOT rely on the law enforcement officials to obtain all the crash site information, especially witnesses information.
Lesson 6 – Start your own documentation process immediately; write down everything even remotely related.
I regained consciousness just before being transported and do remember the lady in an aqua pants suit standing next to me, but saw no law enforcement personnel. Since there was concern regarding neck and back injuries, I was carefully put onto a stiff board and transported to the Clermont Hospital Emergency Room.
Law enforcement issues
One of the most aggravating issues related to the this crash was the attitude and performance of the “responsible”’ law enforcement officer, a Florida State Highway Patrol Officer. He was “late,” for whatever reason, in arriving at the crash site, coming on the scene only after I had been transported to the ER.
He talked to the truck driver and determined the condition of the bicycle and truck. He obtained the data he thought was required to fill out the short form crash report.
Our first and only encounter with the state trooper was in the emergency room. After obtaining some information from us he proceeded to give us a lecture composed of the following points:
- He had been a trooper for approximately 30 years.
- He did not like bicyclists.
- He did not like what bicyclists were doing to Lake County.
- He knew the driver of the truck.
- A jury, on a homicide charge, had recently acquitted the truck driver.
- He felt sorry for the truck driver since he had lost his good job and could only find employment driving a truck.
- There would be no citation issued since the truck driver stated I had pulled into him.
- My wife’s description of the incident was not admissible since she was a biased witness.
- He did not interview the nurse/witness.
- He strongly encouraged us to not bicycle in Lake County again.
- We could file a civil suit
- He provided us with his phone number, which he never answered or returned calls
This encounter left us with a very poor opinion of this particular Florida state trooper. It would appear he is/was just part of the “Good Old Boys” network.
After my recovery, I did a bit of investigating on my own, and at least satisfied my own curiosity. The trooper indeed has/had a reputation in Lake County for his attitude toward cyclists and was well-acquainted with the truck driver.
The crash report, generated by the Trooper, contained information favorable to the truck driver.
For example, the truck driver, when deposed during civil proceedings, stated he was looking in his left rearview mirror and going significantly faster than the speed recorded in the crash report.
I wrote a letter, to Governor Bush expressing my concern about the trooper’s performance. It wound up at the Florida Bike-Pedestrian office in Tallahassee; they carry little or no weight on this type of issue.
Resending the letter directly to the Florida State Patrol colonel did produce a phone call to us from the trooper’s supervisor.
I will not even repeat what we were told by him, but you can bet it was not supportive of our concerns.
The good news is that the new generation of local law enforcement in Lake County seems to be more accepting of bicyclists in the county.
I hope that attitude will eventually prevail with all Florida state troopers as well.
Lesson 7 – Beware, the law enforcement team may not be unbiased in their handling of a bicycle crash incident.
Retain all physical evidence from the crash site. In my case it included the remains of the bicycle, the damaged helmet, broken glasses, and damaged clothing. These are necessary to support your insurance claim or civil suit, should it go that far. More on this topic later.
Lesson 8 – Keep the damaged equipment and clothing.
Emergency Medical Care
The transport and medical attention at the emergency room was of good quality for this incident.
It is important that you get prompt quality medical attention. Due to the severity of this encounter, medical transport was obviously required. Fortunately for me, a few x-rays, stitches and cleaning of wounds was all that was required. I was issued a set of crutches, provided with a prescription for a pain medication, and sent on my way.
Lesson 9 – Get prompt quality medical care for all injuries.
Continue the documentation process as soon as you can. Record all of the issues you raised and that were treated. Do not hesitate to bring up possible injured areas.
Cyclists tend to be a macho group and like not to complain, but this is your time to try to identify any and all possible injuries.
However, how does one pay the bill? They do not let you go unless you have provided them insurance information. Not knowing about the Florida No Fault rule, I gave them my medical insurance card.
Wrong, they needed the automobile insurance information. It was just another aggravation getting this billing issue straightened out. There will be more on this insurance issue in another installment.
The Emergency Room care for this crash was good and we could guide the care process.
However, after a more recent self-induced crash, portions of the medical care process were poor. While not going into details, after many inquiries we found out that neither the hospital nor participating physicians were registered with the state medical society. One of the problems was obtaining the medical records.
Lesson 10 – If possible, check the accreditation of the hospital and physicians prior to having any significant procedures performed.
Lesson 11 – Medical Records are your property; sign a release for the desired records before discharge, and take them with you.
Get the picture? It is not a pleasant experience being involved in a bicycle crash from any perspective. During this very difficult time, however, regardless of severity someone really needs to pay attention to details and document them.
To this point you are pretty much at the mercy of the medical and law enforcement teams covering your crash. It gets much more complex from here and I will cover other related topics in the next issue.
Getting the Right Legal Advice
Legal advice and follow-up medical care may come in a different order depending on the severity of the crash. I was fortunate that I did not need immediate follow-up medical care.
At the time of the accident I had no knowledge of Florida NO FAULT laws regarding medical care.
Other Florida cyclists told me that a cyclist’s automobile insurance would cover medical expenses up to the limits of the policy. Beyond those limits major medical insurance would kick in. My automobile insurance agent was not aware of this provision!
It took some persuasion to get him to call corporate and confirm that they were responsible for my medical bills up to the policy limits.
Lesson 12 – At the Emergency Room or hospital provide them with your automobile insurance information.
Should you be involved in a crash with a motorized vehicle, contact your automobile insurance company.
Lesson 13 – Make sure your automobile insurance agent and company are aware of your coverage while you are on your bicycle. Notify them if you have a crash involving another vehicle.
I mistakenly contacted the insurance company of the truck driver. I got a very cool reception from them with a comment to the effect they would not pay medical bills and since I had done no damage to the truck, it was their opinion that there had not been a crash.
At this point I felt the need to obtain legal advice.
I did not have an attorney that I use in Florida, so I asked other cyclists and reviewed several cycling newsletters.
I found another cyclist who was an attorney and represented cycling crash victims.
There is a standard representation contract that you will need to sign. The attorney works on a contingency basis, they get a percentage of the final award. Their percentage is based on how far the case goes in the legal system.
With the papers signed, the attorney took over contacting the insurance companies and provided other recommendations. The first requirement was to document, document, and document all of your injury related issues.
This includes pictures of injuries and equipment as well as a detailed written record of your condition, recovery progress and medical treatment.
If the crash site is not in your local area, you may need to find a primary or second attorney who practices in the county where the crash occurred.
You can get a referral from your primary attorney or you can do some research on your own.
I was fortunate to find an attorney who practices in Lake County and who had worked with FBA on the Ray Howland case [While standing on the shoulder of a road in Mount Dora during the 1999 bike festival, Ray Howland was struck and killed by a motorist. — ed.].
He handles personal injury cases, is a cyclist, and fully understood that my primary objective was to recover my physical abilities as a first priority and material recovery was a second priority. If the insurance company does not come to a reasonable and timely settlement, you will have a lot of interaction with your attorney.
Lesson 14 – Make sure the attorney you select is familiar with and has experience in bicycling legal issues, is, preferably, a bicyclist, and can work with your priorities
Follow-up medical care
The next step was to find follow-up medical care. Again, at the time I did not have a local physician, so the attorney recommended someone who handled injury cases in my area.
Without going into a lot of detail, it was a DO who handled injury cases and rendered victim-favorable reports.
My assessment was that the report might be favorable, but the care would be less than what I thought would be adequate.
I opted to switch to an orthopedic physician. From this point forward I received quality medical care. The medical care required diagnosis and treatment by the orthopedic physician and therapy and rehabilitation over time.
Beware of the insurance industry.
All of my care and rehabilitation was at the direction of the orthopedic physician, but my insurance company did not pay all of the bills. There was a disagreement between the physician’s office and rehabilitation providers with the insurance company regarding billing dates.
There is a 30-day regulation regarding billing for the care provided. I am convinced that the providers billed well within the 30 days, but the insurance company returned the documents for additional information and then claimed the second submittal exceed the 30-day limit. The end result was that I had to pay the portion of the disputed medical bills.
Lesson 15 – Get quality medical care
Lesson 16 – Discuss the billing procedure with your medical care providers.
This may now be resolved, but having the bills sent with a return receipt required assures confirmation of the billing date. If all of this sounds complicated, it is. My experience shows that the insurance industry is not your friend when you are filing a claim.
Documentation included taking pictures of injuries and the equipment and retaining all of the damaged equipment and clothing. I even returned to the crash site and took pictures of the road where the crash took place. Document on a daily basis your treatment, recovery and impact on all of your life’s activities.
As an example, I have a heart condition for which regular exercise is a very desirable, but I was unable to do most of those activities for an extended period of time. I kept detailed records of dates that I could resume my activities. For the swim, bike, run activities this included distances and times.
An important part of the process was to grade the pain levels at each injured area on a weekly, monthly, and eventually quarterly basis. Since the crash resolution took over FOUR YEARS, there was a very complete and comprehensive diary that was available for the discovery, deposition and negotiation processes.
This documentation serves as a reference for your use during the proceedings, so you do not have to rely on your memory, which can get blurry over four years. There will be more on these legal processes later.
Lesson 17 – Document in detail all of your injuries, treatments, recovery or non-recovery, level of pain and limitations on a regular basis.
The following sections deal with your physical and emotional recovery and your evaluation of the process. I emphasize the need to document the entire crash process.
These notes will be invaluable if you cannot come to a reasonable settlement with the insurance companies.
Depending on the severity of the crash, the physical recovery can take from weeks to years.
For crashes involving a motor vehicle, the period is likely to an extended period of time for treatment, procedures and therapy. Furthermore, the recovery may not be 100% for all of your injuries.
Your documentation plays a key role when it comes to an eventual settlement. Do not leave it up to memory, it gets very hazy after a long period of time. Write the details down as they are happening.
If your injuries are serious and you need extensive medical care, it is important that you keep a record of these events.
If you are out of work for a period of time, this needs to be documented.
The insurance companies involved will evaluate records of your medical teams from prior to the crash and those that are a result of the crash. Make sure they are accurate and reflect an objective evaluation of your conditions.
For the physical events that I participate in on a regular basis—swim, bike, run—I established pre-crash levels of time, distance and frequency BEFORE values.
For the first year, I recorded AFTER values on a monthly basis. AFTER levels were recorded at 3- and then 6-month intervals as the time period extended.
These regularly recorded values provided an objective documentation of the physical recovery process.
Pain is an inherent part of a crash. Hopefully, the recovery process will include the elimination of all physical pain resulting from the crash. I made up a table of all the areas injured as a result of my crash. I assigned a pain or discomfort levels for each area BEFORE the crash.
I evaluated and documented these levels at the same intervals noted above for the physical limitations. I used a scale of 0 to 10 to indicate the severity of the pain.
- Several things should be noted. I did have some pre-existing conditions
- One area required surgical intervention
- All areas did not return to BEFORE levels
- Most of the medical and therapy treatments are not shown in this table
As stated earlier, these self-evaluations must be as objective as possible. Do not over state the effects of an injury, but do not avoid dealing with an issue that may be a permanent injury or loss of capability.
The Legal community will request your medical records from before the crash from your medical providers to determine pre-existing conditions.
Mental recovery is an issue that you and your medical team must address. A simple example is, are you willing to continue your enjoyment of bicycling?
I did not have a problem with this, but I do get a bit tense when I hear a large diesel truck behind me. As in physical and pain recovery, document any issues you have and whether they were resolved.
Lesson 18 – In summary, fairly and thoroughly document the physical, pain, and mental recovery processes.
Consider the need for long-term care and/or medication that may be required to treat your crash injuries. There could be a significant cost for this long-term treatment. Make sure you fully evaluate the long-term implications of the crash injuries. For my crash, that includes a significant amount of discomfort on a daily basis in my right shoulder and both ankles.
Lesson 19 – Do not rush into a quick settlement. Make sure all of the long-term effects of your crash have been addressed.
For this article, I consider the bicyclist as the victim, since in my case an inattentive truck driver caused the crash. However, there are instances where the crash is a result of careless or inattentive bicyclists and he/she is the cause of the crash. Most of the issues here are applicable in either case.
If you have not been involved in auto or bicycle crashes the solution process can be daunting. Once you are in the recovery process, the medical treatment is fairly well defined, but the legal, insurance and emotional issue solutions are not nearly as well understood.
It was at this point that I got in touch with FBA. Several phone conversations with then executive director Carol Wilson were very helpful in putting my experience into perspective. She provided me with additional information on possible contacts within the state that could provide assistance in resolving my outstanding issues.
For me this included suggestions for legal representation in Lake County and avenues to research what I thought were inappropriate actions by the Florida Highway Patrol. FBA is in the process of developing a more structured Crash Assistance program. If you are involved in a bicycle crash, do not hesitate to call FBA for information.
Lesson 20 – Use FBA resources to help with your crash recovery process.
I would certainly encourage you to talk with other bicyclists that have experienced bicycle crashes. They have been through the process and can provide valuable information.
This goes beyond just comparing injuries. They may well have positive recommendations for medical care providers and legal assistance. This is another valid reason to contact and support your local bicycle clubs and bicycle shops.
Lesson 21 – Obtain information and advice from the bicycling community.
An example from my incident was the issue of Florida’s No Fault insurance. My insurance agent was unaware that it applied to bicyclists, but the owner of our local bicycle shop in Bradenton was well acquainted with this provision of Florida law.
The Florida No Fault insurance issue will be discussed in the next article. It took patience and determination during the four-year process, but I am hopeful some of these lessons will be helpful for others.
Insurance and Legal Representation
Please keep in mind that I have no training in insurance or legal matters. The terminology and opinions stated here are derived from the experiences associated with my crash.
There can certainly be less complicated recovery and settlement process than those I encountered, but they can be much more complex as well. I only address the situation where a bicyclist is involved in a crash with an insured driver of a motorized vehicle. Consult your insurance agent and attorney for specific details.
Florida’s NO FAULT insurance
Not all states have a NO FAULT insurance law, so the following may not be accurate in other states.
Florida’s NO FAULT law states that YOUR automobile insurance company will pay your medical bills up to the limits of your Personal Injury Protection (PIP) limits if you are riding a bicycle, regardless of who may have been at fault. A standard amount is $10,000. There were some deductions, which reduced my coverage to about $8,000 for PIP.
An optional coverage you can obtain is “Automobile Medical Payments.” My limit for this coverage is $5,000 and the premium is only $12.39 per six months. Again, in my case that provided medical coverage for me under my automobile policy of approximately $13,000.
It is my understanding that expenses beyond the stated limits would be paid under the provisions of your major medical insurance. However, they will request to be reimbursed for their coverage in the final settlement from the motorist’s automobile insurance.
Typically, we do not tend to understand all of these interactions until we are involved in an incident.
Lesson 22 – Take the time to have a basic understanding of how your insurance coverage would work in the event of a crash while you are riding a bicycle.
It will also shed light on the general provisions of the policy. This may sound straightforward, but beware of complications. Insurance companies, even your own, are not inclined to always make payments according to the rules you think are applicable. A few examples I encountered are:
- My automobile insurance agent was unaware of the bicycle coverage.
- My automobile insurance company paid some, but not all of the medical expenses.
They invoked a 30-day invoice-billing rule by not accepting the first claim, and by the time the provider resubmitted the claim, the 30 days had expired. As noted in a previous segment, your medical provider should send claims in a manner that clearly documents the date of the first submission.
These unpaid claims just add to the complication of the care and settlement process. Unless you pay them—not recommended—it is difficult to obtain further care from that medical provider.
Our primary residence is in Idaho and we have a long established relationship with the medical community in our hometown. My shoulder required additional care—surgery to be specific—to alleviate pain that increased in severity the summer following the crash.
A controversy ensued between the Florida automobile insurance company and my Idaho major medical provider over which company should pay the bill.
Your insurance company will assign an adjuster to your case. That person is not likely to be your local agent. Your local agent is basically a salesman and does not directly mange your claim. However, they do a great job of managing your bills!
I tried to deal directly with my insurance company adjuster and found that tactic to be ineffective. It would appear that their role is to save the company money, not necessarily help pay your bills. Over a drawn out claim, the your adjuster will likely change several times.
I very naively thought that I could communicate with the opposing insurance adjuster and get an idea of where this process was going. Boy was I wrong! I got totally stonewalled by that person (“There was no crash; you did no damage to the truck.”).
You may be lucky to have an insurance agent that is thoroughly knowledgeable about all of your specific issues, but it became clear to me early in the program that additional resources would be required to sort out all of the issues. I was reluctant to seek assistance but soon realized it was time to call in the legal team.
Personal Injury (PI) attorneys deal with all of this on a daily basis. They are aware of the correct avenues to settle the claim and the “games” that are played in that process.
Lesson 23 – Obtain the services of a PI attorney as soon as practically possible after the incident.
Obtaining an attorney
Some of the issues regarding the services of acquiring an attorney were outlined under the previous section – Legal Advice.
If you have an attorney or firm with whom you have established a working relationship, consult with them first and see if they handle PI cases. If they do, follow their recommendations.
If you do not already have an attorney whom you deal with, try to obtain the names of potential candidates from friends or cycling acquaintances.
In general, I have found it better to use someone that is personally recommended rather than making a ‘blind’ phone call from a telephone directory. The more experience they have with bicycle related crashes, the better they will be able to represent you as an injured bicyclist.
It is even better if they are bicyclists themselves. From my crash experience, it is clear that the Florida law enforcement and legal system are biased towards motorists, so the more expertise you have on your side the better your results will be.
Lesson 24 – Obtain legal council that has extensive experience in bicycle incidents.
Aside from your recovery one of the first questions is: Who pays the legal fees?
Based on my case, where there was reasonable expectation that the motorist was at fault, the attorney will work on a contingency basis. That is, they get a percentage of the final settlement. That means you do not have to pay their expenses out of your pocket. Based on their experience and knowledge, they know they will be compensated for their efforts.
There is a standard representation contract you sign that explicitly defines their percentages and other costs based on how far the settlement process needs to go.
Lesson 25 – Understand the provisions of the representation contract you sign
Interview the prospective attorneys before signing on the dotted line! Make sure the person and firm you select shares your same priorities and agenda.
My priorities were the best medical care and treatment to assure the best possible recovery. Some firm’s goals are to maximize the final settlement so they make the most money. There seem to be ways this can be accomplished, but they may not fit your agenda.
Lesson 26 – Select an attorney that understands and supports your objectives and goals.
Depending on how far your settlement goes, you may be dealing with your legal representative over a long period of time. Choose carefully!
Signing with legal council will take a good burden off your shoulders. They can help settle the billing issues and other similar tasks.
As you reach the end of your recovery process they can recommend medical evaluations that will clearly document your recovery and permanent injuries. If you have questions, and you will, related to the crash and settlement process, they are there to answer them.
Lesson 27 – Establish a good working relationship with your attorney and have a lot of patience.
The end game here is to arrive at a fair and just settlement. This can be a very complex procedure with many variables. If the motorist was issued a citation, that will work in your favor and may bring a quicker settlement from the motorist’s insurance company. If there is no infraction or no criminal charges against the motorist, it is likely to be a whole different ball game.
As an injured party, you have the right to file “civil charges” against the motorist.
There are many directions this can take and I will outline the avenue I took for my 1999 crash in the next segment.
You get to these steps if you have NOT reached a settlement with the insurance companies. You have come to this point with guidance from your attorney. For this discussion, I will assume that the vehicle operator is assumed to be the “At Fault” party, had insurance and you, the bicyclist, were not responsible for the crash.
In my case, the Florida Highway Patrol did not cite the truck driver for any violation. The insurance company for the truck driver would not offer any settlement.
Florida law provides you the right to file a civil suit against the vehicle operator. From my experience, these seemed the only way to get the attention of the insurance company and let them know you are serious about the claim.
Lesson 28 – Do not hesitate to file a civil suit. It appears to be the only way to get serious attention.
By now all of your documentation: crash report, medical reports, medical history records, witness reports, pictures, damaged equipment, etc. have been made available to your attorney. From this and your statements, your attorney will build the case and notify the opposing insurance company of your actions and intents. Your attorney may suggest you get a current medical exam to confirm your current condition.
The vehicle operator’s insurance company will have legal counsel representing them. This is where the real negotiations begin. Your attorney and their counsel discuss the merits of the case on the threat of filing the civil suit. You may luck out at this point and reach a reasonable settlement. It looked like we had a chance at this, but several changes of assigned attorney for the defense further complicated the process.
he time frame to this point was nominally two years after the crash. My physical condition had stabilized and the legal wheels turned very slowly. No reasonable settlement offer was presented at this point.
Barring a settlement, the next step is actually to file the civil suit in the appropriate court. Again after many delays, the process continues with the “disclosure” phase.
Both sides are allowed to “depose” the individuals for each side. In simpler language, each side interviews/interrogates the other’s client and, possibly, witnesses and medical providers.
The counsel for the insurance company set a time to depose both my wife and myself. For us, it was at least a two-hour grilling of each of us for all issues related to the case. Your attorney is present during the deposition and you are allowed to refer to all of the documentation provided in the case file prepared by your attorney.
The legal profession is really good at finding discrepancies in documentation and statements.
Lesson 29 – Be sure your deposition statements are truthful and consistent with the written documentation provided.
Your attorney will depose the defendant and other appropriate witnesses. Now each side has a good idea of the “character” of the opposing clients. Here again is a point at which you may get a reasonable settlement.
In our case, however, I was made out to be “Tarzan” since I was able to regain an ability to swim, bike and run. There was no concern regarding pain or reduced levels on their part. Since there was still no reasonable offer made at this point, Florida requires that you present your case for “mediation” prior to actually scheduling a court date.
Arriving at a Settlement
I was very disappointed with the mediation process. Although the mediator had had the case file for well over a week prior to the mediation date, he did not even know my name.
Present at the mediation are the insurance adjuster, insurance counsel, your counsel and yourself. Each side presents a summary of their case and then the two sides retire to separate rooms.
The mediator then shuttles between the two rooms presenting proposals and counter proposals. The mediator then gave us a “boiler plate” speech, basically stating that we should take whatever the insurance company offers.
The process took well over three hours, starting with a ridiculous offer from the insurance company and never even getting close to a reasonable settlement. The adjuster had come with a maximum amount he was authorized to offer, but of course that did not come out until after the three hours and all the haggling.
The game is to establish a bracket of a possible settlement amounts. After the three hours it was evident that we were not going to come to a settlement. I could only suggest that the mediation process in my case was nothing more than a welfare system to support a retired judge.
My attorney had provided me with a range of settlement values of what he thought would be reasonable based on his and peer experience.
Lesson 30 – Establish a settlement value that is reasonable and do not be intimidated into accepting something significantly below that level.
Up to this point your only out-of-pocket expenses incurred are your travel and lodging expenses if they are required.
Typically office fees for copying, etc; filing fees and mediation expenses are paid out of a fund established by your attorney. So now it is off onto the next step. Throughout this process the opposing counsels are communicating with each other. If a court date is set, each side will probably elect to depose additional witnesses. Since most of my medical treatment was done in Idaho, this would have meant additional expenses to pay for my attorney to depose my doctors in Idaho. Airfare, recording expense and the fees charged by the doctors for their time would have been incurred.
Your attorney initially pays these expenses, but they are then deducted from your portion of the settlement. Another point to take into account is that proceeds from an out of court settlement are not taxable as income.
At this point, both sides in my case recognized the escalated costs and risks to pursue the suit beyond this point. From my perspective, the risks became significantly higher.
The decision would be in the hands of an unknown jury and if the award was low, I would have to compensate the insurance company’s attorneys. The defense recognized their risks and additional costs and finally made an offer that met my minimum threshold.
After a lengthy discussion with my attorney, we agreed to accept the offered settlement. This settlement was completed four years after the crash.
Lesson 31 – Be reasonable in your expectations and carefully evaluate the reward to risk factors and accept a reasonable settlement.
Lesson 32 – Exercise patience and common sense.
This brings us to the end of my ‘crash recovery” saga. I hope this series may make it easier for those that have to endure a similar process. However, it should be noted that at each juncture there might be a different avenue appropriate for your case.
The obvious solution is to avoid the crash in the first place, but that is not always under your control.