What Is A Tortfeasor?
Helping You Navigate Your Way Through The Complicated World Of Auto Accident Claims

February 2011 - By Benjamin W. Loving

You have just been in an auto accident. What should you do? You will need to collect all of the information about your accident. More specifically, you will need the names of the parties involved in the car accident and the names of any witnesses to the accident. Most of this can be accomplished by calling the police. You should call the police so that a police report or accident report can be generated. You should also take photographs of the collision scene with your cell phone or digital camera. Most importantly, after an auto accident, you may need to seek medical attention. Injuries from an auto accident can vary, because no accident is the same. Even if you feel normal or just a little bit sore, you will want to rule out any injuries, because some injuries can take several days to appear.

After the dust has settled, you will want to contact your insurance company or have qualified auto accident attorney contact them for you. Time is of the essence, as most insurance companies have a specific window of time in which you must report an accident in order to file a claim. Under Florida's no-fault insurance laws your insurance will pay the first ten-thousand dollars of your out-of-pocket expenses. This coverage is called Personal Injury Protection or "PIP." With some insurance companies this process can be easy and with others, it is not so straight forward. An attorney should guide you through this process in order to make sure you receive all benefits and coverage available to you. The remainder of your expenses or damages that exceed ten-thousand dollars can be recovered from the Tortfeasor or the Tortfeasor's insurance company. What exactly is a Tortfeasor? Tortfeasor literally means wrongdoer, an individual who commits a wrongful act that causes injures to another. The Tortfeasor will be labeled the Defendant if you have to file suit to recover for damages in excess of the ten-thousand dollars of PIP benefits.

What happens next? You or your personal injury attorney will work with an insurance company to get your vehicle repaired. In some cases you will work with the Tortfeasor's insurance company, but depending on the coverage or the circumstances, you may be required to look to your own insurance company to repair your vehicle. Your PIP benefits will cover medical expenses as well as cover your lost wages if you have to miss work because of the car accident. Even though you have PIP benefits, your insurance company will only pay 80% of your medical expenses and 60% percent of your lost wages. Ten-thousand dollars may seem like enough money to cover your medical expenses, but with the ever increasing cost of medical care, it most likely will not be enough to cover many types of injuries, even seemingly minor ones.

If you do have injuries that exceed your PIP coverage, your attorney will need to seek contribution from the Tortfeasor's insurance company for additional money to cover your expenses. A lawsuit does not need to be filed with the Court at this stage. This request can be accomplished by your attorney sending a demand letter to the Tortfeasor's insurance company. Several factors come into play when requesting money from the Tortfeasor's insurance company. First, it will need to be established if you have recovered completely from your injuries, or in the alternative, if you know how much your continued treatment will cost and how long you will need to continue treatment. Second, your attorney will need to know how much money you have lost and how much money you may lose in the future because of work missed due to the accident. The third factor is how much has already been paid and where that money came from. This has to do with your insurance company's right to subrogation. Subrogation is when your insurance company seeks reimbursement from the Tortfeasor's insurance company for money it has paid for your injuries. As you can see, pre-lawsuit issues can be rather complicated and it is important to have a qualified personal injury attorney who specializes in auto accident litigation on your side.

This takes us to the lawsuit or the litigation phase of an auto accident claim. Litigation can take a fair amount of time. The lawsuit document, the "Complaint", will be filed in the appropriate Court and sent to the Tortfeasor, who is now officially the "Defendant." The injured party, (the one filing suit) is called the Plaintiff. After the Complaint is filed, on behalf of the Plaintiff, the Defendant's insurance company will arrange for an attorney to handle the lawsuit on the Defendant's behalf. After receiving the Complaint, the Defendant has 20 days to respond, and refute the claim and/or state a defense that may remove his or her liability.

The next phase of litigation is the discovery phase. The discovery phase is where both parties, the Plaintiff and the Defendant, are allowed to gather information about each other and about the accident. The discovery phase is designed to aid both parties in preparation for a trial. At this point in the lawsuit, two alternatives to trial will present themselves.

A Proposal for Settlement and mediation are two alternatives to a trial. A Proposal for Settlement is very similar to the demand letter. Your attorney will gather all of your medical bills, medical records, and your treating physician's final medical report. Your attorney will use this information to arrive at a proposed settlement figure to send to the Defendant's attorney. It will be up to the Defendant to decide whether it is an acceptable proposal or not. Now bear in mind, the Defendant is more than just the Tortfeasor, it is also the Tortfeasor's insurance company. Ultimately it is the Tortfeasor's insurance company that will pay you.

Mediation is the other avenue that may eliminate the need for a trial. Mediation is where both parties meet to negotiate the settlement. In Florida, mediation is mandatory. It is designed to help resolve disputes before trial and to help lessen the workload of the Courts. Often, mediation is described as the last chance for both parties to control the outcome of a case, because at trial, the case is turned over to a jury.

If the Proposal for Settlement or Mediation process fails to resolve the lawsuit, your attorney will have to prepare for a trial. At trial, your attorney will need to show the jury that you are injured and that the Tortfeasor is liable for your injuries. Your attorney will also need to show the jury the facts surrounding your General Damages, also known as Actual Damages, which are your medical bills, lost wages, and any other expenses you have incurred due to the accident. These damages are objective, meaning your attorney can present bills for the expenses or any losses you have sustained. The other type of damage is called Special Damages. These damages are subjective and they deal with your pain and suffering. Unfortunately, with injury, pain is often a factor and depending on the type of injury, the level of pain and suffering will differ from case to case. This type of damage is left up to the jury to determine, and they will determine the amount of compensation you should receive for you pain and suffering.

At the end of your trial, the jury will return with a verdict on liability and if the jury finds that the Tortfeasor is liable for your car accident, the jury will award you damages. The damages award is to take care of any medical bills and satisfy your insurance company's right to subrogation on bills that it may have paid. Your attorney will work with your medical providers to try to reduce some of these bills. At this point the litigation is over, you and your attorney will tie up all of the loose ends to make sure that all issues related to the case are resolved.

As you can see, auto accident claims can be quite complicated. You need a qualified attorney on your side, to help guide you through this process. Remember, if you are in an auto accident, call the police, seek medical attention, and contact a qualified auto accident attorney.