Are You an Injured Tourist?
What You Should Know Before Filing Suit in Florida
Our firm has had the privilege of handling many cases on behalf of citizens of other countries who have been injured in or had an accident here in the United States and have brought suit in Florida as a result. In recent years, our clients have come from countries such as England, Scotland, Wales, Germany, France, Denmark, Australia, Italy, and Austria. Because of our extensive expertise representing injured tourists, we have grown to understand the major areas of misunderstanding regarding litigation brought here in the United States. We hope this section might prove helpful to those of you who have been injured in the United States and/or are considering bringing suit to recover for those injuries.
A Quick Primer on Litigation in Florida
First, some background about how litigation is conducted here. In order to recover, the plaintiff must establish negligence on the part of the defendant – and do so, in most cases, by testimony or documentary evidence presented to a jury of six citizens who receive legal instructions from the judge and then decide the case based upon a unanimous verdict. Except in unusual circumstances, the jury’s decision is binding and cannot be reversed on appeal. Only the legal rulings by the judge or the nature of the instructions given to the jury can form the basis of an appeal.
The defendant may assert a number of defenses to the claim. For instance, Florida has adopted a “comparative fault” rule, which allows the defendant to claim that the plaintiff was also negligent to some degree. If the jury determines that the plaintiff was negligent, then damages are reduced by the percentage of fault the jury apportions to the plaintiff. In addition, Florida allows defendants to assert that some other person or entity is a “joint tortfeasor” and to seek to have the jury allocate part of the fault to that tortfeasor. If the alleged joint tortfeasor is insolvent or not subject to suit, then the allocation of fault to it has the effect of reducing the plaintiff’s recovery for non-economic damages, because the doctrine of joint and several liability has been abolished.
Florida has also modified the common law “collateral source” rule. If the plaintiff’s medical bills or lost wages have been paid from some collateral source, such as a health insurance or disability policy, the plaintiff cannot recover those amounts from the defendant unless the plaintiff is required by the terms of that insurance or disability policy to make repayment out of any recovery.
The Extent of Your Injury Can Make A Big Difference
In cases where the foreign plaintiff’s injury is relatively minor, practical considerations can make it unrealistic to present or pursue a claim here in the United States. Generally speaking, a plaintiff has more leverage to settle with the defendant prior to filing a claim where the threat of litigation, should an amicable settlement not be reached, is most significant. Unfortunately, that threat might not always be as weighty for foreign plaintiffs as it is for plaintiffs residing in the United States.
For example, in almost all cases, the testimony of treating physicians must be presented at trial, and it is almost impossible to present medical testimony merely by the presentation of written reports. Obviously, the expense of taking sworn testimony of one or more doctors in the plaintiff’s country of residence might be significant and, as described further below, could reduce the plaintiff’s net recovery.
Also, the plaintiff would be required to be present in Florida for one lengthy period of time, at a minimum, and perhaps on as many as four separate occasions (including submitting to sworn deposition by the opposing parties; submitting to a local physician for physical examination; attending a mediation conference; and attending trial). It may be possible to consolidate some or all of these required appointments into one trip, but that single trip would likely have to occur at least a week before trial begins, and trial itself could last a week or longer. Because the associated travel and lodging expenses are almost entirely borne by plaintiffs themselves, a plaintiff might easily be discouraged from entering into litigation — which would lessen both the threat of litigation as leverage and the ability of the plaintiff’s attorneys to effectively negotiate a settlement.
The Costs of Pursuing a Claim Here
Beyond these considerations, misunderstandings can arise with regard to the costs of pursuing a claim. Nomenclature is important here. As used in America, the term “costs” includes monies advanced by the attorneys here for investigation and discovery on behalf of the client. They are roughly equivalent to “disbursements” under British law. If the case proceeds to judgment, the plaintiff is allowed to recover a limited amount of these costs from the opposing side. Normally, only the actual costs of filing fees, subpoenas for trial, testimony presented at trial, and depositions used at trial are considered recoverable costs. Even these are often restricted. Travel costs, costs of medical reports and records not entered into evidence, and costs of conferences with physicians are just some of the things that cannot be recovered from the defendant. In addition, if the matter is settled, these costs cannot be recovered as an additional, specific item in the settlement agreement.
Our firm advances the expenses we incur in prosecuting our client’s case, including the expenses of the attorney’s travel, investigation, medical conferences, records and the like. If the case is lost, the client is not obligated to repay us. If the case is won, however, all of these costs are repaid to our firm out of the client’s share of the recovery.
How Fees Would be Handled
Another area of misunderstanding has to do with fees. Our firm handles these cases on a contingency fee basis – meaning we accept a percentage of the total settlement or recovery as our full fee. The standard fee is thirty-three and one-third percent (33 1/3%) if the case is settled without suit, forty percent (40%) if suit is filed, and forty-five (45%) if there is an appeal. These scales are reduced if the defendant admits liability when the suit is filed and on recoveries above one million dollars. Florida law allows these fees to be shared between our firm, as the firm principally responsible for the case, and a British or foreign firm, as the associate attorneys. From our firm’s long experience, we understand that this contingent sharing of fees is appropriate and approved under British law for those matters which are lawfully prosecuted here in the United States. The usual or standard arrangement is that our firm accepts seventy-five percent (75%) of the total fee, while the associate attorneys in Britain, if applicable, accept twenty-five percent (25%) of the total fee.
A word of final caution here. Though quite similar in some details, the laws governing claims in the various states can vary considerably. For example, the rule of law allowing a jury to allocate part of the fault to a third party or entity applies in Florida, but does not apply in all states. While some states require application of the law based upon where the accident occurred, this is not true in all states. While generally the “place of the accident” governs the application of law, there are many exceptions to this general rule.
These considerations must be balanced against the general statement that United States juries and courts tend to award substantially larger damages than do foreign courts such as those in Great Britain. This reality is extremely significant in cases involving death or serious injury, which may produce a substantial receovery for the client. In minimal injury cases, however, the benefit may be small or non-existent. This is true because both the attorneys’ fees and costs serve to reduce the settlement or judgment, thus producing a smaller “net” recovery to the client than might occur in Great Britain or elsewhere.
A Special Word about Claims Involving Motor Vehicle Accidents Here
Beyond the above, you should also keep in mind some additional special considerations in cases involving motor vehicle accidents or automobile collisions in Florida.
In Florida, unlike in many other states, the owner, lessor, and non-driving lessee are absolutely responsible for any negligence of the driver of that automobile. In most states, some type of agency must be established in order to hold anyone other than the driver responsible for negligently caused injuries or death. That is not the case in Florida.
Florida also has “No-Fault” insurance in automobile cases. In most circumstances, a plaintiff’s damages may be limited by this no-fault law, which provides up to $10,000.00 of medical expenses and lost earning capacity to a person injured in an automobile accident without the need to prove any fault. Eighty percent (80%) of medical expenses and sixty percent (60%) of lost earnings or earning capacity are covered under the law. Amounts recovered under this no-fault law may not be obtained from the negligent party in litigation. The no-fault law also prevents a plaintiff from recovering damages for non-economic losses (such as pain and suffering and the inability to lead a normal life) unless the plaintiff establishes that he or she has suffered a “permanent injury.” Insurance companies are often unwilling to make any payment without some sort of documentation from a doctor that there has been a permanent injury. If the matter proceeds to trial, the issue of “permanent injury” will often become the focal issue.
A plaintiff’s practical ability to recover damages in an automobile case may be constrained also by the general rule concerning limited coverage insurance policies. Unlike in many countries, almost all automobile policies providing coverage to automobiles in the United States have monetary liability limits, many limiting the company’s responsibility to $10,000 per injured individual and to $20,000 for all persons injured or killed in an individual accident. There are, of course, policies of insurance with much larger limits, and additional insurance coverage may be provided by the owner of the automobile, as distinguished from the driver, or by the employer of the driver. Nevertheless, one of the preliminary matters that must be determined, in most cases, involves the availability of insurance coverage. While the negligent individual will be responsible for damages in excess of the limits of insurance, history has shown us that rarely can any actual funds be recovered above the policy limits.
The above reality has led to two unique features of Florida law relating to insurance coverage.
Individuals injured in Florida frequently have access to “uninsured motorist coverage” or “underinsured motorist coverage.” Such coverage may be provided by the injured person’s own policy, holiday travel policy, or a policy of insurance for the automobile in which they are passengers. The coverage is contractual, but its details are in many respects dictated by legislation. Actions for recovery of uninsured/underinsured motorist benefits are brought by suing the insurance company itself. Such uninsured/underinsured motorist coverage is extremely important because of the high incidence of vehicles being operated without any insurance at all (which is unlawful), with property damage liability insurance only (which is lawful), or with low-limits insurance coverage (likewise lawful).
Another peculiarity of Florida law arising as a result of limitations on insurance coverage is a concept generally referred to as “bad faith liability.” Under some limited circumstances, a plaintiff may be able to require that a defendant’s liability insurance company pay an entire judgment even though the amount of that judgment greatly exceeds the amount of insurance provided by the company. An insurance company is required to exercise good faith in protecting its insured from personal liability and must, if it can, settle a liability claim within its liability limits. If it unreasonably refuses to settle within the liability policy limits, and if the plaintiff obtains a judgment in excess of those liability policy limits, the plaintiff may, in some circumstances, recover the entire amount of the judgment. These rights arise under the common law of Florida and specific statutes – both of which, as you might suspect, vary considerably from state to state.
These additional considerations in cases involving motor vehicle accidents reinforce the need, in appropriate circumstances, for the British solicitor (or foreign citizen or lawyer) to obtain a general evaluation of the potential for a recovery before the matter is actually sent to the United States for litigation. Most reputable plaintiffs’ personal injury law firms in the United States will provide an initial evaluation without charging any attorneys’ fees. Our firm certainly will.
We hope this information, though lengthy, has been helpful to you, as you consider your options in the wake of an accident here in Florida or elsewhere in the United States. We would be happy to analyze your case and advise you as to the probability and range of potential recovery. We invite you to seek our input by using our Free Case Evaluation form today.