[vc_row css=”.vc_custom_1498824847034{margin-top: 0px !important;margin-bottom: 0px !important;padding-top: 0px !important;padding-bottom: 0px !important;}”][vc_column css=”.vc_custom_1498824852492{padding-top: 0px !important;padding-bottom: 0px !important;}”][vc_row_inner css=”.vc_custom_1498886828165{margin-top: 0px !important;margin-bottom: 0px !important;}”][vc_column_inner width=”5/12″ css=”.vc_custom_1498886834332{margin-top: 0px !important;margin-bottom: 30px !important;}”][vc_single_image image=”1861″ img_size=”full” alignment=”center” css=”.vc_custom_1602687027525{margin-top: 0px !important;margin-bottom: 0px !important;}”][vc_empty_space height=”10px”][vc_column_text]
[/vc_column_text][/vc_column_inner][vc_column_inner width=”7/12″ css=”.vc_custom_1498886840111{margin-top: 0px !important;margin-bottom: 30px !important;}”][vc_custom_heading text=”Attorney: Clint Wallace” font_container=”tag:h3|text_align:left” use_theme_fonts=”yes” css=”.vc_custom_1602686761394{margin-top: 0px !important;margin-bottom: 15px !important;}”][vc_column_text el_class=”home-welcome-text” css=”.vc_custom_1602686674338{margin-top: 0px !important;margin-bottom: 0px !important;}”]Clint Wallace on The Proverbial Lawyer radio talk show with host James Bruner. On this particular show, James Bruner takes questions from listeners and discusses the legal aspects with attorney Clint Wallace, one of the law partners at the law firm of Scott & Wallace, with offices in Tallahassee, Panama City and Thomasville, Georgia.
You can listen to the show (39 minute run time) by clicking play on the media control. Or you can read the show’s transcript available just below the media player control.[/vc_column_text][/vc_column_inner][/vc_row_inner][vc_column_text el_class=”home-welcome-text” css=”.vc_custom_1602686965235{margin-top: 0px !important;margin-bottom: 30px !important;}”]“Rear-Ending” Another Car Creates Rebuttable Presumption of Wrongdoing
Your host has been practicing law for over 30 years and is admitted to practice in four states. Here is “The Proverbial Lawyer” Radio Show host, attorney James Bruner…
Thank you. Welcome to another edition of The Proverbial Lawyer, so pleased to be with you on this Saturday morning. Today a special show with those who helped us out in the personal injury area, we have Scott & Wallace on the line. In fact, we have partner Clint Wallace. We’re used to listening to Clint’s partner Robert Scott wax and wane eloquently on personal injury, but today we have a Clint Wallace on the line. Good morning, Clint. How are you?
Clint Wallace: Good morning. I am doing well. How about you?
I am doing well. Doing well. As we reach out to our listeners in the community, we here at The Proverbial Lawyer like to reach out to wise people to get council. We get counsel from the Word of God, sure, from the law actually read the letter of the law this advices us on our conduct, but sometimes we need to bring wise people together and get consult. And that’s Proverbs 11:14 — Where there is no counsel, the people fail. But in the counsel of the multitude there is safety. And that’s what’s nice about Scott & Wallace. They have a free consultation and you can find out about your case without any kind of obligation. Is that right, Clint?
Clint: That’s right, that’s right. We’re always happy to talk to people and answer questions and see if it’s something that we can help them with.
Excellent. We invite our listeners to participate in The Proverbial Lawyer and they can do so by going to theproverbiallawyer.com filling out a contact form there with their legal questions or you can call us at 855 I GET LAW. For the numerically minded, that’s 855-443-8529. And Clint, if it’s alright with you I’m going to run a question by you. We have Dora from St. Marks writing in to The Proverbial Lawyer — are you ready for this, Clint?
Clint: Sure.
All right.
“Dear Proverbial Lawyer: I had a car accident involving me and another car. I was driving and the car in front of me slammed on their brakes. I slammed on my breaks and literally slid into and tapped their bumper with my bumper. I left my vehicle to check on the condition of the other driver of the other car. I am a former EMT. I immediately notice that the other driver was not wearing a seatbelt. I also noticed a workman in front of his vehicle, which is why he had slammed on his brakes. The workman was stopping traffic by simply standing in front of oncoming traffic and raising his hand out with his palms facing the driver. He had no STOP or SLOW sign and no flags. He was wearing a yellow vest. The other driver at first said there was no damage and he was fine and got back into his car. The workman asked that we pull off the road so we did. As we were stood there talking, suddenly he (the other driver) complained of a stiff neck. According to the responding officer’s report, there was no damage to either vehicle. The truth is there was no damage to the other vehicle my new truck had a small crack on the bumper. No one was ticketed for the accident because the responding officer said there was no damage and that he only filled out the report because the other driver complained of neck pain and requested medical assistance and was taken away by an ambulance. The very next morning I got a call from the other driver’s insurance and now not only is he claiming injuries, he’s claiming damage to his car. Thank the Lord, that when they took him away by ambulance, I got pictures of both his vehicle and mine. Am I really at fault for the accident even though I didn’t get a ticket and the workman was not in compliance having a hand sign or flag. Is it automatically my fault because I hit another vehicle from behind? I am grateful no one was seriously hurt and I’m praising God I didn’t hit the other car hard enough to push forward into the workman. I couldn’t even see the workman until he was just outside of my vehicle. I didn’t swerve because, to be honest, I thought I was stopping and time from hitting him and I was just a tad short and tapped him. I’m a strong believer and I want to do what is right, but I don’t want any insurance fraud in any way. What do you think I should do? I love your show. And thank you for anything helpful.”
Thank you, Dora, for writing in. Attorney Clint Wallace of Scott & Wallace, what are some of your initial thoughts on this?
Clint: Sure. First of all, thank you Dora for the question. I’m sorry you’re involved in this accident. The first thing you should do, and it sounds like you’ve already done this, is to notify your insurance company. When you purchase insurance, not only do they indemnify you for any damages you may be liable for, but also, as part of your policy, they will mount a defense and pay for that defense for you. You want to make sure that you call and report this to your insurance company so they can get started defensing you in this. Pursuant of Florida law, there is a rebuttable presumption of negligence in the event that you rear-end somebody. And so the law starts out with the presumption that you have fault here for rear-ending somebody. But that’s not where it stops. Your insurance company is going to put up a defense for you. Okay and there’s defenses here potentially that would absolve you of all liability. Florida is a pure comparative fault state for purposes of determining negligence. What that means is, if the case were tried to a jury, the jury would get a form and they would have to allocate fault to any of the potential parties that may have fault here in this accident. And you’ve identified that there is your vehicle, there’s the car in front of you (that it sounds like stopped suddenly), and there’s the construction company or the flag man that work for them. What your attorneys would do – or the insurance company’s attorney- is talk about other actors that may have some fault as a result of this accident. First, the flag man for the construction company — I don’t know that he was complying with all of the Florida laws and codes required regarding signage and warning and things like that, to notify drivers they’re going to have to stop soon. The details of your question, you know your insurance company will want to get more information about what was out there. Sounds like you took some pictures — always a good thing. Anytime you’re in an accident, best thing to do is to take pictures. Make sure you write down any statements that any party made, because those could become important later. One of your potential offenses may be that the construction company is a fault for this. That they did not properly put signage up to warn motorists, that they weren’t wearing the proper colors or have the proper flag to alert drivers. That may very well be what happened here. Additionally another potential defense may be that the car in front of you that stopped suddenly, that he (or she) wasn’t paying attention and that’s what caused the accident. Your attorneys or your insurance company will want to investigate that. But that’s how comparative fault works.
So we’ve got a rebuttable presumption and comparative fault – some big words. So going back through that, when you rear-end someone, instead of it being conclusively your fault in all cases, what you’re telling us, Clint, is that there is a presumption that it is your fault, but it is rebuttable.
Clint: Correct. What would happen in this scenario if the case were tried, the judge would tell the jury that you’re to assume that Dora is at fault because she ran into the back of the vehicle in front of her; however, you can consider Dora’s arguments that she made to see if she had that rebutted that presumption. Dora’s defense would be some of the arguments that we talked about, that the construction company was at fault or that the car in front of her wasn’t paying attention and stopped suddenly.
All right, and say if that the fault of the other people can be brought forward it is required under for Florida law to be considered and you called the comparative fault, how does that actually work? If you say the total damages to the plaintiff is, say $20,000, how does comparative fault come in to play?
Clint: What would happen is, the attorneys and the judge would ask a jury if the damages are $20,000, the jury would have to assign percentages of fault any of the actors in the case. Here, it sounds like there would likely be three potential actors: Dora. The car in front of her that she hit. And the construction company who employed the flagman. The jury would award, or assign, percentages between 0 and 100% for each of those actors. Let’s say in this scenario that a jury thought that each of the actors was a third at fault. That Dora had a third of the fault, that the construction company had a third and the car in front of her had a third of the fault. Of all the door had a third of the fault. If the total case was worth $20,000, the driver in front of her would collect a third of that from Dora’s insurance company — $6,666 from Dora’s insurance company. Additionally he would collect $6,666 from construction company’s insurance company. And the third one third percent of fault that the driver in front of Dora had he wouldn’t collect because that was his portion of the damages and you can’t collect from yourself for causing your own injury. That’s how that would play out.
Okay. Another question: Where does “PIP” (Personal Injury Protection) come in?
Clint: Personal Injury Protection. This is a good segue into the different portions of the insurance policy that Dora and any other Florida driver is going to have. In Florida you often times hear insurance companies say or use the term “full coverage.” And it’s a misnomer that I don’t like that they use, and what that really means is that you have the minimum coverage required by law, which in Florida every insurance policy sold in Florida has $10,000 PIP or personal injury protection and $10,000 worth or property damage. Start with PIP — Florida is a no-fault state for PIP purposes. Whenever you’re in a car accident, no matter who’s at fault, your own car insurance policy pays 80% of your medical bills up to a $10,000 policy limit. In this case, Dora sounds like she wasn’t hurt and probably will not have any medical bills. But if she did, whether or not she’s at fault, her own car insurance is going to pay 80% of those medical bills. Similarly, the car in front of her, whether or not that person has fault, his or her own car insurance is going to pay 80% of his/her medical bills $10,000 limit. Since Dora is a St. Mark’s residence and has a Florida policy, she will have $10,000 worth of property damage. That’s the minimum every policy has — she may have more than that. So as long as the property damage that the car in front of her sustained isn’t more than $10,000, she will have coverage for that. What Dora ought to do, and everyone should take the time to do, especially before you have an accident, is take a look at your policy, because in addition to the minimum required coverage there’s other coverages that you want to make sure that you have. The first of those is called Bodily Injury coverage. That’s the portion of your policy that protects you in the event that your negligence injures somebody. So, in Dora’s case, if she has bodily injury coverage and the driver in front of her pursues a claim for injuries and is successful, then Dora’s insurance bodily injury portion of her insurance policy will cover the claim so Dora is not personally responsible.
Is bodily injury an add-on to your policy? Like you could be driving out there without having bodily injury coverage in your policy and you’re completely legal, but you may be “half-naked” because if this kind of thing happens and the other driver that you injure, uses up their $10,000 of PIP on their own policy, and they’re going into 11, 12, 13, 15, $30,000 — that overage of the PIP on their policy they’re going to be looking to you personally to pay if you don’t have bodily injury coverage is that fair to say?
Clint: That is fair to say. That’s very accurate. And you definitely want to make sure that you carry bodily injury coverage. It’s not only that they will look to you after they’ve exhausted their $10,000in PIP, remember, PIP only pays 80% of their medical bills. From the beginning, they’re going to have 20% of their medical bills that are either paid by their health insurance or are outstanding for them if they don’t have health insurance. They are going to have out-of-pocket expenses from the beginning. You want to make sure you carry bodily injury coverage and carry enough to cover your net worth. The reason for that is if you seriously injure somebody, and the value of their case against you is a large amount, you want to make sure you have insurance coverage to protect you so your financial future is protected by having insurance. The insurance will be there so that you are not personally liable for an amount that will devastate you financially.
So, go check your policies. Check your bodily injury coverage. Figure out your net worth and see if you have enough coverage.
We’re talking to Clint Wallace of Scott & Wallace, a personal injury law firm here in Tallahassee. When we get back from the break we’re going to talk a little bit more about these insurance coverages and then I’ve got a question for Clint on how do you put a value on pain and suffering?
*BREAK*
Back to talking to Clint Wallace of Scott & Wallace, a personal injury law firm right here in Tallahassee, personal injury cases throughout the Big Bend area, and Clint, I understand you even take cases in Georgia?
Clint: That’s correct. We have an office in Thomasville, Georgia and we are licensed in Florida, Georgia and Alabama.
If one of our listeners wanted to set up a call or a meeting with you, how do they reach out to you? What’s your number, please?
Clint: In Florida: 850-222-7777. And Georgia: 229-236-3636.
How do you get those good phone numbers? My law office you have to memorize the darn number! Yours is beautiful! How do you get those numbers?
Clint: I hear ya. Livin’ right, I guess.
Good for you. Love your new offices on East Brevard Street. You’ve renovated that building very nicely. Plenty of parking over there. It’s a pleasure to visit your office.
Clint: Thank you, James. We like it over here. I live right behind the office and can walk to work.
That’s great! We were talking about Dora’s question regarding her rear-ending someone, and we found out that there is a rebuttable presumption of negligence on her part. She gets a chance (although I doubt a case of this minor level would get to jury) but it’s illustrative of the rear-end accidents and what one can argue. She can rebut the presumption that she was negligent by looking at the conduct of the other actors involved in in our scenario. We’ve got a flagman and we’ve got the car in front of her, and we’ve been talking about the insurance company and how the insurance company would step in defend her on these things and how various categories of insurance coverage work to protect each of us. We’ve just been talking a about the “PIP” — personal injury protection and property damage, where in Florida it’s only a $10,000 each of those categories that is required by law. A third category, bodily injury insurance coverage, is not required by law, but it’s something that Clint Wallace was telling us we should get to cover any of the overage — so if that other party is hurt more than $10,000 limit (plus the 20% co-pay not covered by PIP) that you have something in your insurance policy (your auto insurance policy) that covers that overage. We call that bodily injury. Clint, can you pick a number out of the out of the sky and say “I want the max” bodily injury, or are the insurance companies going to say, “No, no. We’re only going to give you bodily injury coverage up to what you can prove your net worth to be.” How does that work? Can you just pick a number?
Clint: Generally, you can purchase insurance in any amount as long as you are willing to pay for it. Bodily injury comes in two numbers. For instance, $10,000 / $20,000. That means is if you’re in an accident and you injure any one person, the most the insurance company would pay one person is $10,000. The $20,000 number is the most the insurance company would pay everyone in total that you injured as a result of your negligence. For example, if you hit a vehicle that has four people in it and enjoyed them all in the second number the $20,000 insurance coverage would pay to them collectively if their injuries amounted to that.
This exposes you if the total injuries are in excess of $20,000, aggressive plaintiffs will look to what the driver’s personal financial worth is.
Clint: Absolutely. One of the one of the services that we offer at Scott & Wallace, and it’s free, we’ve had a lot of people take us up on this, if you have an insurance policy and it is difficult for you to understand (most insurance companies don’t go through each thing, what they mean and what coverage you should have) if you have questions about your insurance policy, you are welcome to call us and we can explain what you have and what is likely we think you need.
That’s an awesome service.
Clint: And we’re happy to do that. Just give us a call if you have questions about it. Earlier, we talked a little bit about bodily injury, PIP and property damage. There are a couple of other portions of your policy you want to make sure that you purchase. In Dora’s situation, she would want to see if she had Collision coverage. Collision coverage is the coverage that you carry in the event that her (Dora’s) vehicle is damaged due to Dora’s fault. Maybe she is at fault here. So, her collision coverage would pay to fix her personal vehicle. Generally you carry collision with a deductible ($500 or $1000) — if Dora’s vehicle had $2000 worth of damage and she had a $500 deductible, Dora would pay the first $500 and the insurance company would pay the rest, $1500. That’s using $2000 worth of damage as an example. Collision coverage is another coverage that you want to make sure that you carry.
Clint (continued): Perhaps the most important coverage is uninsured or underinsured motorist insurance coverage. This covers you if you are injured by someone carry bodily injury or doesn’t carry enough of it, you’ve purchased insurance to allow you have a potential recovery that stands in the shoes of the person who didn’t carry bodily injury coverage or enough of it. Studies show that in Florida, 50% of people don’t carry bodily injury coverage. That means half the time that you’re in an accident and you are injured, the person that hit you is not going to have the appropriate amount of coverage or bodily injury insurance coverage. To protect yourself from that, and it’s relatively cheap for what you get, purchase uninsured motorist coverage. You going to want to make sure that you look at your insurance policy — if you don’t have it, you’re going to want to add uninsured motorist coverage to your policy.
Okay. Is there another category? I’ve got some questions about claiming on insurance. But anymore categories of insurance that we want to see in our policies?
Clint: The last thing I want to mention today is if you’re making payments on your vehicle, that you have Gap coverage for the lienholder. What Gap coverage is when you buy a new vehicle and drive it off the lot, that vehicle depreciates and they depreciate a lot early on. For instance, if you buy a car for $20,000, the minute you drop it off the car lot, it’s not worth $20,000 — it’s worth a lot less. Oftentimes you can owe more on a car than the car is worth. Example: if you owe $15,000 on a car that’s only worth $10,000, and you’re in an accident, then you may have to not only if your car is totaled, you lose your car, but you may still have to make payments on a car you don’t have anymore. The way you protect yourself from that is to purchase what’s called Gap Coverage. Many lien holders require Gap Coverage whenever you finance a new vehicle — but not always. Make sure that you carry that. Gap coverage is very cheap for what you get. That way you’re not having to pay for a vehicle that is total that you no longer have and I not have access to that car.
That’s like adding insult to injury.
Clint: Absolutely.
Let me ask you about stacking. When I sign up for insurance, they say “Do you want it stacked? Or not stacked? And you’ll have to sign this…” What are they talking about? Stacked? Or non-stacked?
Clint: Good question. You buy uninsured motorist and it comes either stacking are non-stacking. Start with non-stacking – what that means is the numbers we talked earlier, $10,000/$20,000 uninsured motorist policy that’s non-stacking. That means if you get into an accident that someone else caused and you are injured, and that person doesn’t have insurance or not enough insurance, then you uninsured motorist non-stacking policy would pay any one person (you or anyone in your car) $10,000, and collectively pay the total of all persons that were injured $20,000. If you change that and make the policy “stacked,” you stack the number of vehicles that you have on your insurance policy to increase those amounts. Let’s say a family has four vehicles and they have that same $10,000/$20,000 uninsured motorist coverage, stacked, rather than non-stacked, under that scenario you multiply those numbers by four. They would have access to $40,000 uninsured motorist coverage for any one person and $80,000 for a collective total for a two or more people that are injured. Always a good idea to have “stacking” rather than “non-stacking.”
Got it. And I think stacking it, if I recall, I think that’s a pretty cheap add-on to your policy.
Clint: Absolutely it is. Insurance companies recognize that and weren’t too keen on having to offer that. And the legislature recognized that and have made insurance companies have you fill out a form that they have advised you have the right to purchase uninsured motorist coverage including stacking uninsured motorist coverage and you have to knowingly reject them and sign the form.
If you don’t sign the form, are you stacked?
Clint: Nope. If you don’t sign the form you are deemed to have the same amount of uninsured motorist coverage stacked that you would have bodily injury coverage. And we see that a lot — about one out of every 20 cases — that we look at their rejection form we see people that didn’t purchase uninsured motorist coverage but the insurance company didn’t offer it correctly, and in that scenario, they are deemed to have uninsured motorist coverage because the insurance company did not comply with what the legislature required. A knowing waiver of uninsured motorist coverage.
That’s why the agent kind of tracks you down to get these things signed. If you’re trying to go bare-naked minimum under the law, if the agent is on their game, they’re going to be tracking you down to get this thing signed so they don’t run afoul of that legislative requirement.
Clint: Absolutely.
Any other comments for Dora? She had her damage, she doesn’t want to participate in insurance fraud. What about that? I mean is this smelling of fraud where she didn’t see any injuries and then there are claims of neck pain and an ambulance ride — any thoughts on that? Or is this small thing just going to turned over to the insurance company and she won’t have any power over the morality of it all?
Clint: Ultimately it will be a business decision for her insurance company to make. She’s not participating in any type of fraud as long as she tells the insurance company what happened. Provided them with her evidence. The other participants in the accident, that will be for them to get with their respective insurance companies. She can’t control what they say or do. All Dora needs to do is go to her insurance company, obviously tell the truth and provide any evidence she has and the insurance company will take it from there and make a business decision on how they want to handle the situation.
That’s a great answer. You can’t be the world’s policeman and control other people’s conduct. You just have to tell it like it is, what you saw, control your own conduct and leave it up to the insurance companies regarding a potential fraud angle. Let me ask you two questions: We all have a fear of a fender bender or there’s just property damage, we have a fear of putting in claims with our insurance company, cause they will jack up our rates. One story I remember, this one company said something like “I’m sorry your payout on a claim has exceeded your premiums so we are dropping you under such and such…” Should we have a decent fear about making claims?
Clint: No. Making a claim on your insurance policy is not what makes insurance policies go up, generally. What makes insurance policies premiums go up is having at-fault accidents. You caused the accident. Especially the more damage you caused, the insurance company is a higher risk to insure verses someone who has not caused an accident. Being at-fault — that’s what makes your insurance policy go up. Not the fact that you made a claim. Now, as far as worrying that an insurance company is going to drop you, I’m always puzzled little bit by people’s allegiance to their own insurance company. And then they get dropped. Your showing your insurance company allegiance by paying premiums, often times for many years, without making claims, and when you get dropped by that company, it’s natural you want to go back, but they dropped you — and there are hundreds of companies out there. There’s no reason to have an allegiance to one particular insurance company. Shop out your policy every year. Check and see if you can get better coverage for the least amount of money. It’s a good idea.
We hear about pain and suffering. It’s a “damage” – what they call a “noneconomic” damage. How do we put a price on pain?
Clint: That can be difficult. In large part it depends on the degree of pain and suffering to someone has. We see cases from cases like Dora’s talking about luckily it sounds like the injuries are going to be very severe and everyone recovers quickly. We also see cases on the other end of the spectrum where people have lost family members — obviously the pain for something like that is going to be a lot greater. Ultimately it’s a question for a jury in any personal injury case the potential damages you have are: medical bills (past & future), lost wages (past & future), and the pain and suffering. One of the questions the jury would have to determine is: What has going through this situation, how do we value that? In the end you hear the evidence about how it’s impacted their lives. In a smaller case, it’s generally going to be the person who had doctor’s appointments and ultimately the doctor may say that they’re as good as they were before the accident, they’re the same person they were before. In a case like that, you expect pain and suffering to be relatively minor. On the other hand, consider evidence when someone who lost a child in a car accident or lost a family member, spouse; in that case, the pain and suffering there’s going to be a whole different level. There is no easy way to answer your question. It is a jury decision and depends on the specific evidence of how this is impacted somebody and how it has changed them.
We’re tight on time, so maybe we’ll do another interview where we could break this down a little bit more, because some people process pain differently than others. I just wonder if a jury is able to see those nuances, but then what you’re saying is that it is an inexact science.
Clint: It is an inexact science and we could talk about this for a whole segment. What we see generally is that juries get it right. Juries apply the facts to the law and they make good decisions. And our system while not perfect, is the best that there is in the world. And juries generally get it right.
We’ve been talking to Clint Wallace of Scott & Wallace here in Tallahassee. Thank you, Clint.[/vc_column_text][/vc_column][/vc_row]
