FAQ: Pedestrian Accident Questions

No one expects to be hit by a car in the midst of an otherwise ordinary day. The shock of a Miami pedestrian accident can leave victims and loved ones reeling, unsure of the next best step.

The Miami injury and accident lawyers at Gerson & Schwartz, P.A., have dedicated more than four decades to representing those whose lives have been changed by negligent drivers. While every case carries with it a unique set of facts and circumstances based on the applicable case law and relevant statutes, there are some common issues and questions we see arise time-and-again. Here, we offer some insight. However, we encourage those with additional questions to contact our Miami law offices for a free consultation.

Q. I have a lawyer. But do I need a different lawyer for a personal injury or pedestrian accident case?

A. Yes. Pedestrian accident claims will be defended by specialist hired by the doctors, hospital, corporation, manufacturer, landowners or individual you sue. Even though many there are lots of attorneys with some knowledge or experience in serious injury or wrongful death claims your rights can be enforced best by a law firm that specializes in this area of the law.

Q. What if I can't afford to pay attorney's fees?

A. Pedestrian accident and other injury and wrongful death cases are almost always handled on a contingent fee basis. This means there are no attorney's fees paid until the very end of the case from the sums collected by a settlement or by judgment. The amounts of the fees are discussed with the lawyer at the time of hiring. Compensating injury lawyers this way levels the playing field between injured people and richer defendants. Those who are unable to fight back against powerful wrongdoers can obtain quality legal representation without fear of financial ruin if there is no recovery made.

Q. How much money can I expect to recover if I file a claim?

A. This is the most common question everyone wants to know. The truth is that no injury attorney will be able to give you a for-sure answer after an initial consultation, but you may get a ball-park estimate. Some factors taken into consideration include:

  • Total Amount of medical bills
  • What insurance is available?
  • Whether any future medical care is necessary.
  • Whether your injury is permanent;
  • The severity of your injuries/ your prospects for a full recovery;
  • Amount of lost wages
  • Whether there is a loss of earning capacity;
  • The impact of your injuries on your activities and everyday life;
  • Whether you have any pre-existing injuries for the same affected area;
  • The proof of a causal link between the crash and your injuries;
  • The degree of negligence of the at fault party;
  • Amount of available insurance coverage
  • Financial Responsibility of the at- fault party;
  • The type of evidence available to prove your legal claim;
  • Whether an injured party was also negligent;
  • If you claim is against a state, government agency or employee damages are capped at $200,000 per person.

Q. How long does the Legal Claim Process Take?

A. Pedestrian accident claims can take anywhere from a few months or longer to resolve. One reason is that injuries need time to heal so they can be evaluated. Without time, there is no way to know whether or not victims will make a full recovery. Most of the time constraints are outside of a lawyer’s control. If a lawsuit is filed, then the process can take longer. But as a rule of thumb, pedestrian accident and injury claims process can take anywhere from 3- 9 months. If a Miami personal injury lawsuit is filed, then the time frame can last longer. Depending on the facts of your cases will affect the time it takes to resolve your claim. Injury victims should know they only get one shot to prove your case. Once your case is settled or a verdict is reach the claim is usually over unless the case is successfully appealed.

For these reasons a qualified Miami accident lawyer should be retained. An attorney can understand all relevant Florida personal injury laws and will explain that there are some cases that can be resolved quickly. For more serious injury and death claims, a responsible lawyer will take time to ensure that the full nature and extent of your damages are understood prior to resolving your case. Though this may be frustrating, victims and family members should understand lawyers are hired to see the big picture. That means understanding the full nature and extent of injuries in a pedestrian accident in Miami or any other involving a significant injury.

Q. I was just struck by a car while walking. What do I do now?

A. After a pedestrian accident occurs, the very first thing you should do (if you are able) is contact 911. This will be the first step in filing a report and seeking medical treatment. If your injuries are severe, the hope is either a witness or the driver who struck you is calling for help (as is the driver’s duty per Florida Statute 316.062’s duty to give information and render aid).

The next important step will be to contact a Miami pedestrian injury attorney. Although state law gives two years in which to file a wrongful death claim and four years in which to file a personal injury lawsuit, in most cases, the time frame immediately after the incident is critical to that important evidence can be preserved, witnesses can be identified, and other important evidence that could later prove to central to your case is preserved and documented.

Q. I was just injured in a pedestrian accident, but I don’t have any health insurance. Who will pay my medical bills?

A. That depends. Coverage could come from several different sources, depending on the nature of what happened, who is at-fault and the severity of your injuries. Florida is a no-fault state for auto insurance, so the first avenue of coverage will likely be personal injury protection, or PIP. Florida Statute 627.736 allows PIP coverage of a driver to extend to a pedestrian. Pedestrians can also access PIP benefits through their own auto insurance policies, or one held by a resident relative. PIP covers 80 percent of all “reasonable expenses for medically necessary… services” so long as the individual receives initial care services within two weeks of the collision. In other words, seeking immediate medical attention preserves your right to obtain further benefits should your injuries arise or become exacerbated later.

As our pedestrian injury lawyers advising Miami can explain, the cost of your medical expenses exceeds $10,000, you can seek compensation from the at-fault driver’s insurance (if coverage exists) or your own uninsured/ underinsured motorist coverage. If you were working at the time of your injury, you could also be eligible to receive workers’ compensation coverage. Note that your workers’ compensation insurer may seek a lien on whatever third-party damages you collect that have already been paid.

Q. What responsibility does a driver have to avoid hitting a pedestrian in Miami?

A. More often than not, drivers are clearly liable for colliding with pedestrians. Drivers owe a general duty of care to all those with whom they share the road to use reasonable care in operating their motor vehicle. Reasonable care is defined as the way in which a prudent driver would behave in the same or similar circumstances. Failure to use reasonable care – either by act or omission – is negligence. A driver who is negligent in causing a crash is liable to pay for the resulting damages. Failure to obey traffic laws, failure to pay attention, failure to maintain control of the car – these are all examples of negligent driving. But even beyond that, we have Florida Statute 316.120(15), which requires drivers to “exercise due care in avoiding colliding with any pedestrian.” Even further care and precaution is required upon observing any child pedestrian or someone who is obviously confused or incapacitated.

Q. Are drivers always at-fault when pedestrians are struck in or near the crosswalk?

A. Not always. Drivers are expected to yield the right-of-way to pedestrians in crosswalks, but it’s not expected they will anticipate cases wherein a pedestrian suddenly steps out from the curve directly into the vehicle’s path.

Q. What if I was partially at-fault for the accident?

A. Everyone has a responsibility to use reasonable care in avoiding unnecessary injury to themselves. For pedestrians, attorneys would point to the rules of the road as outlined in Florida Statute 316.130. In general, pedestrians are expected to obey the traffic control signals, use sidewalks and cross the street in marked crosswalks. However, even if you are partially responsible for what happened, you can still file a claim for damages against the driver, assuming they too were at-fault. Florida follows a system of pure comparative negligence. Per Florida Statute 768.81, whatever degree to which you were negligent is the degree to which your recovery will be limited. For instance, if you are found 20 percent negligent for the pedestrian accident, you can only recover 90 percent of your total monetary damages.

Q. What if the driver who struck me didn’t have any insurance or fled the scene?

A. This is unfortunately an all-too-common scenario, with the National Highway Traffic Safety Administration (NHTSA) reporting 1 in 5 pedestrian fatalities involved a hit-and-run driver, and nearly 1 in 4 motorists in Florida being uninsured (per the Insurance Research Council). In these cases, an injured pedestrian could seek benefits from their own PIP insurer, and also from their own uninsured or underinsured motorist coverage carrier benefits. These benefits do not always exists for injured victims. Also, if they do exist, UM or UIM benefits may be subject to policy language and exclusions, but those would be the first places we would look. If the driver was underage and drunk, we might look to see whether Florida’s dram shop law, Florida Statute 768.125, would be applicable, in which case one could hold the serving establishment accountable.

Q. How long do I have to file a claim for a Pedestrian Accident Injury in Miami?

A. Florida’s statute of limitations for injury and wrongful death lawsuits are outlined in Florida Statute 95.11. As your attorney can also explain, personal injury claims like pedestrian accidents that do not involve a death, must be filed within four years of the pedestrian accident. This is unless the accident involves a state, county, or governmental agency. In these cases, the time frame can be much shorter. Under Florida law, pedestrian accident wrongful death lawsuits must be filed within two years. If your pedestrian injury claim is against a state, government agency or employee, then you will have to follow the claims process as outlined by the Florida Division of Risk Management. This requires a formal letter or notice of claim within 6 months and a three year deadline to file a lawsuit. But strict legal requirements in the form of proper notice are a pre-requisite to filing a pedestrian accident lawsuit. Failure to follow these strict procedural requirements of Florida Statute 768.28 can result in dismissal of the claim or your claim being time barred. Of course all of these law and rules can be subject to change and other fine line distinction. For these reasons, we do not advise potential clients to rely on the information above nor should it be interpreted as legal advice. Consult with a personal injury attorney in Miami, Florida to discuss how these pedestrian accident laws may apply to your case by calling 305-371-6000, or email us today to set up a free case consultation.

Q. Why does Florida have so many accidents involving pedestrians?

A. Florida is one of the most dangerous states for pedestrians, consistently ranked as having some of the highest numbers and rates of related accidents. It was assumed for some time this had to do with the influx of visitors from our thriving tourism industry. However, in looking at patterns of where these incidents are most likely to happen, we begin to see it has more to do with suburban sprawl. As the annual Dangerous by Design report by Smart Growth America notes, most roads built after WWII were designed to accommodate a growing suburban population commuting to the cities for work. This resulted in wide, high-speed corridors geared primarily toward motor vehicle traffic. There are few sidewalks, few crosswalks and poor lighting for pedestrians. Although some communities are working to change this, it’s not an overnight process. There may be some cases in which poorly-maintained or defectively-designed roads may be grounds for a liability claim against the government agency with oversight, particularly where many previous accidents occurred in the same location.

Q. Do I need an attorney or can I handle the claim myself?

A. Yes. As pedestrian accident attorneys serving Miami, Coral Gables, Miami Beach and other areas, we’ve seen too many accident cases where people try to negotiate insurance settlements on their own. At the end they are usually undercompensated. Keep in mind that insurers do not have your best interests at heart and will be working to minimize how much they have to pay. Your first consultation with a qualified Miami personal attorney is free. So, it’s usually beneficial to at least make a phone call to weigh your options. Gerson & Schwartz, Miami Injury and accident lawyers are always paid on a contingency fee basis. That means there are no fees unless we recover money. If you or someone you love has been injured in a pedestrian accident, please contact the Miami Pedestrian Accident Attorneys at Gerson & Schwartz, P.A., for a free consultation by calling 305-371-6000 or using our online contact form.

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