Part 1: 3 Elements of a Personal Injury Claim
A big first step, in successfully prosecuting an injury claim is to understand the elements that make up a solid case. If you start from the beginning knowing what can be expected and what will both help and hurt your case. It makes it much simpler for your attorney; to help you, help yourself.
A good attorney can assist you in maximizing your claim, but no lawyer is a miracle worker. It is important for you to understand the process and manage your expectations accordingly. The media may make it seem that every personal injury case is a gold mind waiting to be dug, but in truth, the final value of an injury claim, is governed by a strict set of laws that while open to interpretation, must be adhered to.
As with most things, knowledge is power. So in the interest of educating you, as to how the system works and what you can expect, I present this series on Injury Claims. I will begin with an overview and then in subsequent articles, delve into more details.
Basic Elements
Whether we are talking about a slip and fall, a vehicular accident or any other type of injury case, there are three basic elements that must be present for any injury claim to move forward. They are:
- Liability
- Damages
- Collectability
Liability
In simple terms, liability means, who is responsible. It must be established that some person or company, acted in a negligent way that created the situation where the accident happened. It could be a motorist changing lanes without carefully checking their mirrors. It could be, someone running a red light or an employee mopping a floor, without placing a “Caution Wet Floor” sign out as a warning.
The important thing to remember is, that fault must be established.
Damages
Under Florida Law, damages may include:
- Aggravation of pre existing condition
- Disability
- Disfigurement
- Earning capacity
- Future medical bills
- Loss of the capacity of the enjoyment of life
- Lost wages (past and future)
- Mental anguish
- Out of pocket expenses
- Pain and suffering
- Past medical bills
The one thing, that is common to all of these categories is that an injury must have occurred.
While, from time to time, you may hear of a case being settled solely based on a mental anguish or Loss of the capacity of the enjoyment of life claim, these cases are very difficult to prove. Someone hurting your feelings or making you angry is not generally considered grounds for a lawsuit.
Collectability
In short, collectability means, is there any way to collect the damages owed, if you receive a judgment from the court. For the vast majority of cases, this can be translated to mean, how much insurance coverage there is.
As the old saying goes “You can’t get blood from a turnip” and the truth is, unless there is insurance involved, yours (more on this later) or theirs, many times there is nothing to collect regardless of the judgment.
These are the elements of an injury case. In the following articles I will endeavor to cover each of them in more detail and offer you some advice as to what you can do to help establish your case and what you should expect from the system as a whole.