The accidents, injuries, and illnesses that may occur as a result of negligent, careless, or reckless actions, and occasionally actions with the sole intent to cause harm to another all come under the umbrella known as Personal Injury Law. Whether it’s a business owner or a healthcare professional, these careless, negligent, or reckless actions can result in a direct risk to public safety (and in the most severe instances, cause loss of life).
Personal Injury law can first and foremost be defined in the following way:
“[…]physical injury inflicted on a person’s body, as opposed to damage to property or reputation.”
In the days and weeks following an accident or a wrongful death due to the consequences of someone else’s injurious behavior, it’s important for an accident victim with the potential for legal action to understand their legal rights as they pertain to the area of Personal Injury law. This writeup will cover:
- What is Personal Injury?
- A formal lawsuit or a settlement during mediation?
- When does a case go to trial?
- Understanding the Statute of Limitations in Florida
What is “Personal Injury” (also known informally as accident law) and when is it said to occur?
A “Personal Injury” case can arise when one becomes injured or a wrongful death occurs due to an accident where they were not considered to be at-fault. When a victim becomes injured in a slip and fall accident or sustains a TBI as a result of motor vehicle accident, for example, someone else may be responsible for the recklessness and/or the negligence that directly caused the accident and therefore the injuries, to occur. When loss of life results as the consequence of an accident, this is known as “wrongful death”.
When does a case go to trial?
Personal Injury cases can become “formal lawsuits” when legal representation is retained. Depending on the facts of the case, some may settle during mediation, if the financial compensation able to be recovered is sufficient at that level–if not, the case must go to trial. When the dollar amount offered during a mediation isn’t considered to be sufficient as it relates to the injuries a victim sustained, civil court proceedings (trial, litigation) are then used to determine the amount of damages owed. The latter is referred to as a verdict, and is ruled upon by a judge.
Under normal circumstances, a settlement offer occurs before any lawsuit is filed and is preferable in many cases. A mediation can, in certain cases, save time and money for all parties involved and can be highly preferable to a lengthy trial. The most experienced lawyers tend to opt for mediation whenever this method of Alternative Dispute Resolution is most beneficial to the client. An experienced Personal Injury lawyer is prepared for however a case must proceed.
A formal lawsuit or a settlement during mediation?
Let’s explore the two distinctions and expand on their differences:
- Formal lawsuit: While a criminal case is initiated by the government (either at a state or federal level), a formal Personal Injury claim is generally initiated when a private citizen (known as the “plaintiff”, the victim who sustained injuries) retains a Board Certified civil trial lawyer who files a civil “complaint” against another individual (known as the “defendant”, usually an insurance company) and formally alleges that they acted in a manner that can be considered reckless, careless, or negligent enough to cause serious bodily harm or death.
- Settlement during mediation: When it comes down to the wire, many Personal Injury cases that allege fault against an individual or a business due to serious bodily harm, illness, or injury, or in extreme cases the wrongful death of a loved one are resolved during mediation, when a settlement is reached that is sufficient to provide both quality of life and lost wages on behalf of a victim or surviving family members. Those involved are normally the team of lawyers for the insurance company, and the injured party together with their legal representation. If a settlement can be reached during a mediation (a form of Alternative Dispute Resolution), then no further legal action is required, and both client and lawyer receive the agreed upon compensation.
The Statute of Limitations: what does it matter in the state of Florida?
“Plaintiffs” (the injured party in an accident) are limited in the amount of time allotted to file a lawsuit. This is called the “Statute of Limitations” and in the state of Florida, it is (2) two years.
If the plaintiff exceeds the two-year Statute in which they have a right to file a lawsuit, they forfeit any potential financial compensation they may have sought to gain. The judge will dismiss the complaint every time, no matter how credible or how injured the victim appears to be. There are very few instances where what’s known as the “Discovery Rule” can be applied. This legal principle is normally only used in cases where a wrongful death occurred, as the victim is no longer alive to speak on their own behalf, and consideration must be given to how long they were aware of their illness or injuries.
In 2018’s Wrongful Death Claims: What Every Beneficiary Must Know After Tragic Loss we established a basis for the “Discovery Rule”:
“[…]In order for the court to determine whether the victim could have reasonably known that illness or injury catastrophic enough to be fatal was to occur before they passed away, a lawyer must determine whether or not the death was directly caused by another person. If the victim can be proven to have reasonably known an injury or illness was considered fatal, the clock begins ticking prior to the actual death. For example, thousands of victims living with terminal cancer caused by Monsanto’s Roundup have begun to file their Class Action claims prior to their inevitable deaths.”
The Personal Injury law process is about people
While other areas of law abide by rules found within Statutes (these are known as penal codes in criminal law cases, at state and federal levels), much of the practice of Personal Injury law allows its decisions to made fairly by a judge during trial, or decisions agreed upon during a mediation between a Personal Injury lawyer and the insurance company’s lawyers. This is due to the nature of Personal Injury law, where people have been severely harmed as a result of the actions of another. Moral ethics as well as unbiased compassion must be at the forefront of decisions being made regarding compensation and quality of life for those who have been catastrophically injured.
A handful of states have made attempts to summarize Personal Injury law within written Statutes of their own, however for now, many practical reasons deem that mediation agreements, and when necessary, court verdicts issued by a judge remain the official standard of law in any case resulting from injuries sustained during an accident.