There are many motorcycle accidents where each party bears at least some responsibility. The law adjusts for this, and in Florida, the judgments for negligence directly reflect the apportionment of fault. This means that in the Sunshine State, you can file a personal injury lawsuit and receive damages even if you were partially at fault for the crash.
Motorcycle accidents also tend to produce catastrophic injuries, require knowledge of particular legal issues like helmet laws, and involve unusual circumstances like hit-and-runs. The attorneys at Kogan & DiSalvo are experienced with the unique aspects of these accidents and can advise you on your right to compensation despite partial liability.
Negligence is decided in court by a specific logical formula:
- Duty – The defendant must owe the plaintiff a duty; typically, this is to act as a reasonable person under the circumstances;
- Breach – The defendant must breach this duty, typically by failing to act as a reasonable person under the circumstances, i.e., driving or riding recklessly;
- Injury – The plaintiff must suffer a loss of some sort, i.e., an injury; and
- Causation – The defendant’s breach of duty must have directly caused the injury.
Once liability has been proven in this calculation, the court will then analyze “damages,” or the money paid due to the lawsuit. However, at any time before the conclusion of a case, the sides can settle (and most do).
Pure Comparative Negligence
Florida is a pure comparative negligence jurisdiction. This means that damages will be awarded in direct proportion to the fault established by the evidence. However, even if you are primarily at fault, there is no prohibition on collecting damages. A plaintiff who is found to be 80% at fault, for example, could still collect 20% of the damages.
This is why it’s all the more important to have a knowledgeable attorney advocating on your behalf. The other side will be looking for any degree of liability to reduce a settlement or judgment, and a well-presented argument can minimize this.
Common Issues in Motorcycle Accidents
While catastrophic injuries occur with any vehicle, motorcyclists are far more likely to suffer severe injuries. Because of the high amount of damages at stake, insurance companies are likely to spend more money to defend, deny, or delay a settlement.
Tragically, a motorcycle accident is far more likely than other vehicular accidents to end in a death. When this happens, family may be able to pursue a wrongful death case or survivorship action. Survivorship actions will allow loved ones to press the claim of a lost family member, such as the injuries suffered in the accident. Meanwhile, a wrongful death case will attempt to compensate family members for their losses. This includes loss of services, such as childcare or home health care for a disabled spouse.
Lastly, many people will assume that a motorcycle rider is naturally reckless. Successfully navigating this obstacle can require an argument from an attorney who not only knows the law, but also appreciates and can relate to motorcycle culture.
What to Do Immediately After the Accident in Which You Were Partially at Fault
If you have been involved in an accident, depending upon whether injuries will allow, there are a few things that you can do immediately to protect your rights. This can include:
- DO NOT ADMIT FAULT TO ANYONE or talk about anything that may have led to the accident – insurance agents and opposing counsel will look for any mistake that could reduce their liability. This includes social media, text messages, and other communications that may come out during the discovery process;
- Photographing damages to your motorcycle;
- Photographing any injuries;
- Taking videos and photographs of the scene to document the weather, any road hazards, traffic, and other conditions that may have led to or exacerbated the accident;
- Call the police – the police report will include a statement that will be important in your case; and
- Privately record your recollection of the incident to refresh your memory later.
Remember, statements against one’s interest or made to witnesses can add to an argument for contributory negligence. This will include statements that an insurance company may request in a settlement before you have an opportunity to speak with an attorney to understand their full implication.
An experienced attorney will be able to prevent an insurance company from placing disproportionate blame on you and instead building a narrative that accurately assesses fault and represents your best interests.
“Compensatory” damages, which are paid to compensate a plaintiff for their losses, include economic and non-economic damages.
Economic damages are those that have a receipt or market value. A few examples include:
- Property damage
- Medical bills
- Physical therapy bills
- Mental health counseling for trauma
Non-Economic damages are a bit more intangible, such as:
- Physical pain and suffering;
- Emotional trauma;
- Loss of enjoyment of life; and
- Loss of consortium.
On occasion, a defendant has acted particularly egregiously and may be liable for punitive damages. These damages punish and make an example of a particularly wrongful-acting defendant. Even if a plaintiff is partially responsible, this would not eliminate the liability of a driver that leaves the scene of a hit and run.
How a Kogan & DiSalvo Attorney Can Help
At Kogan & DiSalvo, our motorcycle accident lawyers have significant experience handling these cases and winning substantial compensation for our clients, even if they were partially at fault. Call today for a free consultation.