When you are injured in a car accident that is not your fault, it would seem that if the other driver involved in the crash was negligent and you are injured, that generally, you should be entitled to recover for your injuries. In fact, basic law school text teaches us that negligence law involves having a duty of care, breaching that duty, and causing injury. Prove that, and you are entitled to recover.
Well, when it comes to car accidents, things are not so simple. The law involving car accidents presents another, often onerous hurdle to recovery-permanency. As a general rule, in order to be entitled to recover for damages in a car accident, you must have a permanent injury.
The History of PIP
Before we talk about permanency, let’s explore why the law requires this extra hurdle. It all stems from personal injury protection insurance ( often called “PIP” or “no-fault” insurance).
Before PIP existed, in order to recover for damages from a car accident, you had to show someone was liable for your injuries, like any other injury case. But that meant that for every car accident involving injuries, there was someone getting repayment for injuries (the “innocent” driver), and someone who was not (the negligent driver). In some cases, there may be no other driver at all, such as when someone just loses control of his or her car or hits an object on the road. This led to a lot of people being injured while driving, with limited means with which to seek medical treatment. So, the Florida legislature created PIP.
To remedy that problem, Florida law requires all drivers carry PIP insurance. Unlike liability insurance, PIP will cover about $10,000 of your medical expenses or lost wages no matter what—regardless of who is at fault (hence the “no fault” moniker). Hit a tree or fall asleep at the wheel and hit another driver – PIP does not care. You get those insurance benefits anyway (although PIP insurers do sometimes try to take those benefits away, but that is another story).
Because those PIP benefits are yours, without your having to prove anybody was negligent in an accident, insurance companies had some concern that they would be paying out a lot of money to insureds. In order to appease insurance companies, the legislature created the fiction of permanency. It mandated that in order for people to recover for any liability against another driver, they could not just be injured. They had to show they were permanently injured.
This way, insurance companies would receive the benefit of fewer or smaller liability claims and a better chance of winning cases at trial in return for the increased PIP payouts.
So, what does permanency mean and how do you prove it? As the name implies, it is an injury that does not go away. It does not necessarily mean severe, though it often does—a broken bone in a pinky that will forever lead to minor dysfunction in the finger is still permanent. A severe injury in which the victim fully and completely recovers is not permanent.
In some cases, we may know immediately that an injury is permanent. For example, medical science currently has no way to heal a severed spine. A victim that suffers a paralysis-type injury may certainly improve, but will never recover fully. In those types of cases, we may know that a victim has suffered a permanent injury right away. And yes, death is considered permanent.
Often we do not know how an injury will heal or how a victim will recover from an injury. The victim often has to undergo a full course of treatment before showing permanency. Some people may fully recover from certain injuries, while others never may after suffering the exact same injury. There is no way to know one way or the other, until a doctor says that you have improved as much as can be expected. That is sometimes called “maximum medical improvement,” or MMI.
Showing Permanency at Trial
Permanency can be a huge point of argument in a trial. A negligent driver can virtually admit they were negligent, and admit they caused you injury, but deny that your injury is permanent. If he or she wins on that argument, the hope of any significant recovery would be over.
In almost every case, doctors and medical experts will give testimony as to whether an injury is permanent. Because the other side will hire its own doctors, who often will do their own medical evaluation of your injuries, permanency often comes down to a “battle of the experts.”
It can be frustrating for victims to keep going to doctors or therapy, or to keep seeking new medical options, even when they feel that they are never going to fully recover. But stopping treatment early may prevent your doctor from giving the crucial testimony as to permanency that is need to recover damages at trial.
The law of permanency does not prevent you from recovering economic damages—that is, anything out of pocket, such as medical bills or lost wages. The permanency threshold only applies to non-economic damages, such as pain and suffering, loss of the enjoyment of life, anger and sadness, and other damages that can not be measured in dollars and cents. These are often the most painful aspects of a victim’s accident, making a permanency showing all the more important.
If you are in a car accident, make sure your attorneys understand the insurance issues that may be involved, and which can make the difference between winning or losing your case. Contact Brill & Rinaldi today about a free consultation to discuss your injuries.