Comparative Negligence in Florida Whiplash Cases: How Fault Affects Compensation

Florida follows a legal doctrine known as comparative negligence, which significantly impacts the outcome of personal injury claims, including whiplash cases. Comparative negligence means that if you are injured in an accident, your compensation may be reduced by your percentage of fault. This system ensures that each party involved in an accident is held responsible for their actions. Understanding how this principle works is crucial when pursuing a whiplash injury claim in Florida.

Michael Serrano

Founding Attorney

Candace “Cea” Hartley

Associate Attorney

Whiplash is a common injury in car accidents, often resulting from rear-end collisions. It occurs when the neck is suddenly and forcefully jerked back and forth, leading to strains and sprains of the neck muscles and ligaments. Despite the seemingly minor nature of whiplash, it can cause significant pain, discomfort, and long-term health issues. Pursuing compensation for whiplash injuries can be complex, especially when questions of fault arise.

How Fault is Determined in Florida Whiplash Cases

In a whiplash case, determining fault involves a thorough investigation of the accident. Both parties’ actions leading up to the collision are examined. For instance, if one driver was speeding and the other was texting while driving, the fault may be shared between them. The percentage of fault assigned to each party affects the amount of compensation they can receive.

Florida uses the pure comparative negligence rule. Under this rule, you can recover damages even if you are 99 percent at fault for the accident. However, your compensation will be reduced by your degree of fault. For example, if you are awarded $100,000 in damages but found to be 30 percent at fault, your compensation would be reduced by 30 percent, leaving you with $70,000.

Implications of Comparative Negligence on Compensation

Comparative negligence directly impacts the compensation you can receive in a whiplash case. The more fault assigned to you, the less compensation you will get. This reduction can significantly affect your financial recovery, especially if you have substantial medical bills, lost wages, and other related expenses. It is essential to present a strong case that minimizes your fault to maximize your compensation.

Mike Serrano’s law office was everything I needed after a very traumatic accident. He was always super up front and honest with me. I never got the feeling he was trying to sell me on something or to do something that I wasn’t comfortable with. He listened to my concerns and when it tough moments came that I needed to stand my ground. He backed me and made me feel 100% secure. He got me exactly what I needed in a settlement and I would never consider using anyone else. His office staff is also phenomenal.”

- Mary

Mike Serrano was a great attorney for my case!! He was very flexible with phone calls/ Zoom meetings. His staff are always friendly, whether it be on the phone or emails. They keep you updated during your entire case! They don’t leave you silent for months. if you call, they always call back with updates! Highly recommend!"

- Kylie Collier Border

I’ve never had to deal with a lawyer before but Mike has set the bar HIGH. He was always available to communicate my concerns and explain each step of the way. I know no other lawyer would have been able to achieve the same results because he jumped on an opportunity that was a little out of the ordinary and it paid off. He really fought for my case and over delivered. I really hope I never have another accident but if I do I’m running to Mike for help."

- Sandy Carter

Insurance companies often use comparative negligence to their advantage. They may try to assign a higher percentage of fault to you to reduce the amount they have to pay. This is why having a knowledgeable attorney is vital. An attorney can help gather evidence, present a compelling case, and argue against any unfair fault assignments.

Gathering Evidence to Minimize Fault

Evidence plays a crucial role in determining fault in whiplash cases. Various types of evidence can support your claim and help minimize your assigned fault. This includes police reports, witness statements, medical records, and testimonies. Police reports often contain vital details about the accident, such as the positions of the vehicles, skid marks, and initial observations of the officers on the scene. Witness statements can corroborate your account of the accident and provide an unbiased perspective.

Medical records are essential to prove the extent of your injuries and their impact on your life. Detailed records from your healthcare providers, including diagnostic tests and treatment plans, can substantiate your whiplash claim. Testimonies from medical professionals can also provide insight into the severity of your injuries and the expected recovery time.

The Role of Legal Representation

Navigating the complexities of comparative negligence in whiplash cases requires legal experience. An experienced attorney can guide you through the process, ensuring that all relevant evidence is gathered and presented effectively. They can also negotiate with insurance companies on your behalf, advocating for a fair settlement that accurately reflects your damages and minimizes your fault.

Legal representation is crucial when dealing with the tactics of insurance companies. Insurers may attempt to downplay your injuries or assign a higher percentage of fault to reduce their liability. An attorney can counter these tactics by presenting a well-documented case that highlights the true extent of your injuries and the negligence of the other party.

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Medical Documentation and Whiplash Injuries

Proper medical documentation is vital in whiplash cases. It not only proves the existence and severity of your injuries but also establishes a clear link between the accident and your condition. Immediately after the accident, it is crucial to seek medical attention, even if you do not feel severe pain. Whiplash symptoms can sometimes take hours or even days to manifest fully.

Medical documentation should include detailed notes from your initial examination, diagnostic tests, treatment plans, and follow-up visits. Consistent medical care and adherence to your treatment plan are essential. Any gaps in treatment or failure to follow medical advice can be used by the opposing party to argue that your injuries are not as severe as claimed or that they are unrelated to the accident.

Negotiating with Insurance Companies

Insurance companies play a significant role in whiplash cases. They are responsible for compensating you for your injuries and other damages. However, their primary goal is to minimize their payout. When dealing with insurance companies, it is essential to be cautious and well-prepared.

Insurance adjusters may contact you soon after the accident to gather information and possibly offer a quick settlement. It is important to avoid making any statements that could be used against you or accepting a settlement offer without fully understanding the extent of your injuries and damages. Consulting with an attorney before speaking with insurance adjusters or accepting any offers is highly advisable.

An attorney can handle communications with the insurance company, ensuring that your rights are protected and that you do not inadvertently say or do anything that could harm your case. They can also negotiate on your behalf, leveraging their knowledge of personal injury law and experience with similar cases to pursue a fair settlement.

Case Results

Car Accident

This client was injured in an auto accident with a driver who improperly merged into her lane. Her vehicle was totaled. She sustained an aggravation of her pre-existing disc herniations in her neck and new disc herniations in her lower back. We obtained the full limits of both the at-fault driver’s bodily injury coverage and our client’s underinsured motorist coverage, which were significant. The settlement was achieved without a law suit and within four months after the client finished treating.

Rear End Collision

This particular client was injured in an accident in late 2015 when she was rear-ended. She sustained an aggravation of pre-existing disc herniations in her neck and a new disc herniation which ultimately required a surgical fusion. By the time of trial, her medical bills exceeded $180,000.00. The Defendants’ offer pre-suit was $20,000.00. We were able to obtain a jury verdict of $441,000.00, plus attorneys’ fees.

Car Accident

A client was injured in a rear-end collision where he sustained an aggravation of a pre-existing disc bulge that developed into a herniation in his lower back. We obtained a jury verdict which was over 6 times what had been offered prior to trial.

Car Accident

In this case, our client injured her shoulder after being struck by a vehicle while she was performing volunteer services. The driver was traveling at such a high rate of speed entering a parking lot that he clipped another vehicle, hit a parking barrier and was launched into a tree. After the client attempted to negotiate with the insurance company prior to hiring us, we were able to obtain an amount that was over double the prior offer.

Intentional Torts

Our client was injured from an assault by a patron of a party while working security. His shoulder required multiple surgeries. He hired our office to pursue a claim to recoup his medical bills, which exceeded $130,000.00. After his assailant offered him $10,000.00 to resolve his case, we took the case to a jury to decide. The jury awarded our client all of his medical bills and tripled his award for pain and suffering.

Car Accident

This client came to us about a car wreck that occurred in 2014 where she sustained injuries. She approached our firm just one week before the statute of limitations was set to expire after being turned away by several other law firms. We filed a lawsuit and were able to obtain the limits of the at-fault driver’s bodily injury coverage and an additional settlement from the client’s insurance carrier.

Truck Crash

This couple was injured in an automobile accident after they were rear-ended in a seven-car pileup caused by a semi-trailer. Of the 15 people who made claims on the same insurance policy, our clients each received the second and third highest offers, which covered all of their past and future medical bills and their attorney’s fees.

Truck Crash

In this case, our client was injured from a rear-end collision with an eighteen-wheeler. Her original lawyer procured a settlement offer of $7,000.00 to settle her case. Because the offer did not approach the amount of bills she incurred from accident related treatment, she came to our firm for a consultation. She decided to hire us. We promptly filed suit and obtained a settlement for her.

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Filing a Whiplash Lawsuit in Florida

If negotiations with the insurance company fail to result in a fair settlement, you may need to file a lawsuit. In Florida, you have a limited time to file a personal injury lawsuit, known as the statute of limitations. For whiplash and other personal injury cases, the statute of limitations is generally four years from the date of the accident. Failing to file within this timeframe can result in the loss of your right to seek compensation.

Filing a lawsuit involves several steps, including drafting and filing a complaint, serving the defendant, and engaging in the discovery process. Discovery allows both parties to gather evidence and information from each other, including depositions, interrogatories, and requests for documents. This phase is critical for building a strong case and preparing for trial.

The Trial Process and Comparative Negligence

If your case goes to trial, the concept of comparative negligence will be a central issue. Both parties will present their evidence and arguments regarding fault and damages. The jury or judge will then determine the percentage of fault for each party and calculate the damages accordingly.

At trial, your attorney will present evidence to support your claim and argue for a fair apportionment of fault. They will also cross-examine the opposing party’s witnesses and challenge any evidence or arguments that unfairly attribute fault to you. The goal is to present a compelling case that maximizes your compensation while minimizing your assigned fault.

Maximizing Compensation in Whiplash Cases

To maximize your compensation in a whiplash case, it is essential to be proactive and thorough in every aspect of your claim. This includes seeking immediate medical attention, documenting your injuries and treatments, gathering evidence, and consulting with an experienced attorney. By taking these steps, you can build a strong case that accurately reflects the extent of your injuries and the negligence of the other party.

It is also important to be patient and persistent. Personal injury cases, especially those involving comparative negligence, can be lengthy and complex. Insurance companies may employ various tactics to delay or minimize your compensation. Having a dedicated attorney by your side can help you navigate these challenges and pursue the compensation you deserve.

Serrano Law Fights Hard for You Contact Us Today

If you or a loved one has suffered a whiplash injury in Florida, it is crucial to understand how comparative negligence can impact your case and compensation. The legal process can be complex and daunting, but you do not have to face it alone. At Serrano Law, our dedicated team is here to help you navigate the intricacies of personal injury law and fight for the compensation you deserve. Contact us today for a free consultation to discuss your case and explore your legal options. Let us help you get the justice and financial recovery you need to move forward with your life.