Caused by the sudden jerking of the head back and forth, it’s one of the most common types of accidents that personal injury lawyers deal with: whiplash. Even in accidents that appear to be minor fender benders, many drivers begin experiencing the signs of whiplash within 24 hours of the crash.
But what exactly is whiplash? What causes it? How much of a payment can you expect from your whiplash injuries? If you’ve sustained accidental whiplash injuries, Long, Jean & Weschler, P.A. can represent you on a contingency basis. That means that you will not have to pay out of pocket for our professional legal services. Call today for a free, no-obligation initial consultation. If we believe you have a viable case, we can represent you on a contingency basis.
Understanding Whiplash and Its Effects
One of the most common causes of whiplash is a rear-end car accident, so we will explain it using that example. When a car is impacted from behind, the seat pushes into the driver’s body. The driver’s head, which is at rest, reacts more slowly to the impact, jerking backward. Once it reaches its limit, because the head only goes back so far, it snaps forward, causing a cracking noise like a whip.
The sudden motion involved in this type of accident causes a neck sprain — the tearing of or stretching of ligaments. In some cases, whiplash symptoms may be masked by other injuries in the area. It can also hide cervical spinal injuries. This is why it’s always a good idea to follow up with your doctor after a rear-end collision, even if you don’t immediately feel pain, stiffness, or other injuries.
Steps to Take After a Whiplash Injury
Hiring a whiplash injury lawyer in Florida is in your best interest after a car accident, but injury claims can wait until you take your safety into account first. Here are the steps to take after a rear-end collision to ensure you get the optimal neck injury settlement value.
- Assess the scene and call emergency services. If you can, move your vehicle to a safe area and get yourself out of harm’s way to the best of your ability. Only then should you contact emergency services.
- Document the aftermath and gather information. As you wait for crews to arrive, and if you are physically able, take pictures of the scene, including the vehicles’ license plates and damages, as well as your injuries, street signs, and any markings and debris left in the road. The more photos you’re able to take, the better – but ensuring your own safety is still your priority. This is also when you can approach the other party for their insurance information or consult witnesses who are still on the scene.
- Seek medical attention for any injuries. When medical teams arrive, listen to their assessment and follow their guidance, even if you don’t notice symptoms initially. Failure to seek appropriate medical care can harm the outcome of your whiplash claim.
- Notify your insurance company. Once you’ve taken care of your well-being and made an initial recovery from the emotional and physical trauma of the incident, contact your auto insurance provider and alert them of your condition and the details of what happened. Even if it’s just an initial call, you can provide follow-up updates as you continue to receive treatment and file a lawsuit.
- Call a motor vehicle accident attorney in Florida. Next, call an experienced motor vehicle accident attorney with a strong familiarity with Florida PIP claims, such as Long, Jean, and Wechsler. The faster you’re able to provide key information such as police reports, photos from the scene, and medical tests, the sooner we can start building your case.
- Follow recovery instructions and monitor symptoms. Continue to follow the direction of your doctors to ensure you keep tabs on your recovery or any persistent symptoms. This includes your mental health.
Key Factors That Influence Settlement Amounts
A “whiplash settlement” is a payout from an insurance company or the responsible party to compensate an accident victim for whiplash injuries. Several factors affect whether or not a victim is entitled to a whiplash settlement and the settlement amount.
Establishing Liability in Whiplash Cases
For you to collect a whiplash settlement, your legal team will have to demonstrate that your case meets the following legal requirements.
Requirement 1: Duty of Care
For you to have a case, you must be able to show that the defendant had a legal duty of care. This means that under the law, they have some responsibility to take an action or refrain from an action. All drivers have a duty of care to operate their vehicles in a safe manner. If a vehicle is approaching a car stopped at an intersection, for instance, the driver has the responsibility to apply their brakes before striking the car. Even if the roads are slippery from the rain, which is often the case in Broward, it’s incumbent on the driver to stop in time.
Requirement 2: Breach of Duty
The personal injury lawyer assigned to the whiplash case must next show that the defendant somehow breached their duty. Consider a delivery driver who is trying to find an address with the map on their phone instead of paying attention to the road. If this lapse of attention causes them to strike another vehicle, they’ve breached their duty.
Requirement 3: Causation
The breach of duty must have been the cause of the accident or partially caused it. If we’re considering the type of rear-end collision that frequently causes neck injuries, the rear vehicle is usually at fault. Common causes for this type of accident are driving too closely, distracted driving, and driving too fast for conditions.
Requirement 4: Damages
Damages in an accident are assigned a monetary amount, even when the damages don’t result from a financial loss. In personal injury law, damages are economic, non-economic, or punitive. Economic damages represent your financial losses, like medical bills, lost wages, property damage, etc. Non-economic damages are awarded for your pain and suffering. Pain and suffering include emotional trauma, discomfort, incapacity, and general inconvenience.
Economic and non-economic damages are compensatory — they compensate you for the damages you suffered in the accident. Punitive damages in Florida car accidents are additional funds meant to punish the at-fault party for intentional behavior or egregious negligence. Punitive damages are considered non-compensatory and are not always awarded in accident cases. An example of a situation where punitive damages might be awarded would be a drunk driver with a very high BAC whose intoxication leads to severe injuries.
There are no caps on compensatory damages in the state of Florida. The cap on punitive damages is $500,000 or three times the amount of compensatory damages, whichever is higher.
Florida’s Comparative Negligence Law
Under Florida’s modified comparative negligence law, a person injured in an accident may still be able to collect damages even if they were partially at fault. As long as the parties agree that the plaintiff is less than 50% at fault, they can receive a partial claim. The best way to illustrate this concept is with an example.
Driver A suddenly changes lanes, cutting off Driver B, and then brakes suddenly. Driver B then collides with the back of Driver A’s vehicle. The court then rules that Driver A was 20% at fault because of their sudden lane change, but Driver B was 80% at fault because they were not cautious enough to avoid the accident. If Driver A’s total damages are $50,000, they could collect $40,000. Their settlement is reduced by 20% for their liability. Because Florida has a modified liability law, Driver B doesn’t collect anything since they are over the 50% threshold.
What is the average compensation for a whiplash injury?
Trying to pinpoint damages specifically for a whiplash injury can be difficult since many accident victims have other injuries that can significantly increase the cost of medical care and increase the time off from work. The following factors will affect your whiplash compensation calculator:
- Whether or not the victim was transported to the hospital. The average cost of an ambulance ride in Broward is $950.
- Whether the accident involved an overnight hospital stay. The most recent data from KFF shows that the average price for a single night in the hospital is $2,826 in Florida.
- How many days you miss at work. Even if you do not have a labor-intensive job, you may need to take time off from work. The financial cost to you depends on your wages.
- How much your physical rehabilitation costs. According to ValuePenguin, the national cost of physical therapy is $137 per session. If you require eight sessions, it could cost $1,000.
The more severe your whiplash injury is, the greater the pain and suffering portion of your settlement should be. Most Florida personal injury settlements exceed $10,000, but they can easily be twice that amount and, in some cases, even reach the low six figures. You may be looking at this list and wondering if insurance pays for some of these things. Yes, you may receive partial compensation from your auto insurance policy, your health insurance, and in the event of a work-related whiplash accident, through workers’ compensation. If you receive a settlement, these parties will receive compensation for their financial consideration.
How to Apply for Whiplash Compensation
If you are involved in a car accident that has resulted in whiplash, you can file a claim through your insurer or the at-fault party’s insurance company. If you have the minimum legal PIP insurance in Florida, your company will pay up to $10,000 for your injuries. In addition, the defendant’s liability insurance may also pay up to the limits of their policy. While you may file an insurance claim on your own, you should not accept a settlement without first speaking to an attorney. If you’re looking for a personal injury attorney in Broward County, the team at Long, Jean & Weschler, P.A. will review your claim in a free consultation. If you decide to hire us, we will negotiate with the insurance company to get you a full and fair whiplash settlement. We only receive compensation if your case successfully settles or we win in court.
Overcoming Challenges in Whiplash Claims
Due to the nature of whiplash and its unseen effects, there can be certain challenges when it comes to filing this type of personal injury claim, especially with modified comparative negligence in Florida. Here are a few of the main challenges you may experience as you navigate your particular situation.
- Handling Opposing Insurance Companies – It’s nothing new for insurance companies of at-fault parties to approach you with a lower settlement than you may be entitled to, so it’s imperative that you don’t make any definitive statements in the aftermath of an accident. Admitting guilt or inquiring about a settlement offer could make your own claim more difficult to substantiate, so it’s best to call an experienced attorney as soon as possible.
- Understanding the Extent of the Whiplash Injury – While you may or may not feel whiplash immediately, it’s even harder to prove without medical results and a clearly documented timeline. This is why you must follow the advice of medical personnel, and keep careful records of your treatment, including test results and doctors’ reports. You should consider keeping a journal to document how the injury is affecting your daily life.
- Being Knowledgeable of Florida’s Legal System – It’s important to understand certain legal stipulations in Florida’s system regarding motor vehicle accidents and personal injury, including the no-fault insurance system and the state’s comparative negligence law. You also need to know how long you have to settle a PIP claim, which is currently two years. This is why you are best represented by a personal injury attorney.
- Proving the Economic and Non-Economic Damages – While it may be easier to total the economic damages of your vehicle or medical bills, asking for non-economic damages such as emotional distress, loss of quality of life, and PTSD can all factor into your claim if you’re able to provide substantial proof.
Neck Injury Symptoms & Diagnosis
People who suffer whiplash injuries in car accidents don’t always know immediately that they’ve been injured. Symptoms may appear shortly after the accident, or may emerge later — even days later. To further complicate matters, whiplash symptoms aren’t always consistent. Of course, most people recognize neck pain, stiffness, and limited range of motion in the neck as possible symptoms of whiplash. But others are less obvious.
Some of the most common include:
- Headaches
- Shoulder or back pain
- Numbness or tingling in the arms
Still, some symptoms do not even seem to be neck-related, such as:
- Fatigue
- Dizziness
- Blurred vision
- Cognitive issues
- Depression or irritability
- Ringing in the ears
- Sleep disruptions
Because of the range of symptoms, some people don’t immediately connect the problems they’re experiencing to the accident, and may delay seeing a physician or even fail to mention the car accident when first consulting a physician. After a car accident or any other traumatic event, it is generally best to err on the side of caution and see a medical professional right away if anything seems out of the ordinary.
One challenge in the diagnosis of whiplash injuries is that, as a soft tissue injury, whiplash doesn’t show up in an X-ray or other imaging test. The doctor may run those tests to rule out more serious injuries, but the actual diagnosis of whiplash is based on a combination of the information provided by the patient and the doctor’s observations. For instance, a treating physician will typically ask you to turn your head to assess your range of motion and what type of movement increases your pain.
Unfortunately, insurance companies often use the lack of clear diagnostic proof of a whiplash injury to fight claims or attempt to minimize compensation.
What is the Best Treatment for Whiplash?
Whiplash treatment typically involves both pain management and work to restore the range of motion in the neck. Depending on the pain level, pain management may be as simple as a day or two of rest, some over-the-counter medication, and the application of heat or cold. In more serious cases, stronger medications may be required. Some possibilities include prescription pain medications, muscle relaxers, or even lidocaine injections.
A person suffering a whiplash injury may also be advised to wear a foam collar. Medical opinions on the use of cervical collars vary, and this is typically determined on a case-by-case basis. While the collar provides support, it also limits motion, which can be counterproductive.
The treating physician will usually also recommend specific exercises intended to restore range of motion and make it easier for the injured person to go on with his or her regular activities. In some cases, this may require physical therapy.
It’s important to follow the doctor’s recommendations, including following up with physical therapy if recommended. Failing to properly treat a whiplash injury may extend the duration of the injury and increase ongoing pain and limitations. In addition, failure to follow medical advice may hurt any claim for damages, as the responsible party’s insurance carrier may argue that the injury would have been less serious if the injured person had done as instructed.
Valuing a Florida Whiplash Claim
In Florida, your PIP is the primary source of coverage for medical expenses associated with a car accident injury. PIP covers up to $10,000 in medical expenses. That’s enough to cover many whiplash injuries, which means there’s often no litigation with the responsible party. If your medical expenses exceed that limit, you may be able to seek reimbursement from the responsible party. However, Florida law limits who can pursue a claim for intangible damages like pain and suffering, mental anguish, and inconvenience.
Generally, a car accident victim is entitled to these additional damages only in cases involving:
- Significant and permanent loss of an important bodily function.
- Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.
- Significant and permanent scarring or disfigurement, or
- Death
Some whiplash injuries are permanent. In one study, researchers found that people who suffered whiplash injuries were more likely than those who suffered other relatively minor injuries to have long-term reduction in quality of life. Still, it may be difficult to establish that the injury is permanent “within a reasonable degree of medical certainty.” Another circumstance in which a whiplash injury victim may be able to pursue this greater range of damages is when the whiplash injury is accompanied by at least one other injury that meets the statutory requirement.
Calculating Damages in a Whiplash Case
You may have heard that damages in a car accident case are determined by a formula, such as three times your economic damages. Economic damages are countable monetary losses, such as medical expenses and lost wages.
While that sort of general rule is sometimes helpful in getting a rough idea of what might be possible, many variables impact the value of a specific claim. Some examples include:
- The seriousness of your injury
- How the injury occurred
- How clear liability is
- Whether the injured person was partly responsible for the accident
- The available insurance coverage
The amount of a car accident settlement or verdict may also be impacted by factors that aren’t directly related to the accident and injury. Some of these may include the quality of your representation, the county in which the accident occurred, and the insurance company involved.
Underinsured Motorist Coverage
While a car accident lawsuit is technically filed against the responsible driver, it is typically that driver’s insurance company that provides an attorney, determines whether to settle the claim and for how much, and makes payment of any settlement or verdict. That’s important because most drivers don’t have money or assets to cover a significant settlement or judgment.
Unfortunately, Florida leads the nation in uninsured drivers. That can leave a seriously injured person without a way to recover fair compensation. However, if the injury victim has purchased uninsured motorist coverage, that policy may provide compensation. While this coverage is optional in Florida, it provides important protection for those who are injured by drivers who aren’t carrying liability insurance.
Frequently Asked Questions Regarding a Whiplash Settlement in Florida
The following are the most common questions victims who have suffered from whiplash after an automobile accident ask before hiring a personal injury attorney.
Do I need a lawyer if I think I have whiplash?
While you’re not obligated to hire a lawyer to fight on your behalf, legal counsel can be invaluable in almost any personal injury case involving motor vehicles. Not only will it help you fend off persistent insurance agencies, but it will also help you fight for the settlement you deserve, which is almost always more than what the other party’s insurance is offering.
What if I don’t realize my symptoms right away?
In the case of whiplash, late-onset symptoms are not uncommon. You are advised to seek medical attention as soon as you begin noticing them, whether it’s directly after the accident or days later. While insurers may try to dispute your diagnosis, having medical documentation will help bolster your claim.
How long will it take to settle a whiplash claim?
Depending on the severity of the crash and the extent of your injuries, whiplash cases can be settled in anywhere from a few months to more than a year. This will largely depend on the amount of evidence available and the diligence of the law firm, which can act expeditiously when provided with the proper documentation.
What if I was partially at fault in the accident?
Due to modified comparative negligence in Florida, you can not recover damages if you are found to be more than 50% responsible for the accident. However, if you are less than 50% at fault, compensation is reduced based on your level of fault. Since Florida requires minimum personal injury protection of $10,000 regardless of fault, you will be covered for injuries up to this amount. Additional damages may be collected based on varying factors.
Can I sue in addition to filing a whiplash claim?
Because you’re covered primarily through Florida PIP claims for car accident injuries, you’re not able to sue for whiplash damages unless they’re deemed severe enough by law. Examples of cases with this severity might include things like scarring and disfigurement, permanent injury, or significant or permanent loss of functionality.
Consult an Experienced Florida Car Accident Lawyer
If you’ve suffered a whiplash injury or other serious injuries in a Florida car accident, speak with a local motor vehicle accident attorney right away. You may have heard that you have four years to file a car accident claim in Florida, and that is usually true. However, there are exceptions.
Even when you have plenty of time to pursue a claim, it’s to your advantage to act promptly. Shortly after the injury, it will be easier for your attorney to conduct a thorough investigation, assemble evidence, and contact witnesses. Over time, physical evidence may be lost or destroyed, and it may be difficult to identify or locate witnesses. Memories will fade–including your own.
The attorneys at LJW Legal understand how important it is that you have access to accurate information and guidance after a serious injury. We offer free consultations to help you educate yourself and make good decisions about your next steps. Contact us to schedule yours right now.
