Defending Against a Personal Injury Lawsuit in Miami

If you have been served with a personal injury lawsuit in Florida — most often arising from a car accident, but sometimes from a slip and fall, dog bite, or other incident — the most important thing to know is that ignoring it will not make it go away. A Florida defendant who fails to respond to a complaint within 20 days of being served can have a default judgment entered against them, after which the plaintiff can pursue collection against your wages, bank accounts, and other assets. The next 20 days are critical.

The First Step — Notify Your Insurance Carrier

If the lawsuit arises out of a car accident or other event covered by your auto, homeowner's, umbrella, or business insurance, your first step is to notify your carrier immediately. Almost every liability insurance policy includes a "duty to defend" — meaning the carrier is contractually obligated to hire a defense lawyer for you (at the carrier's expense) and to indemnify you up to the policy limits.

Failing to give prompt notice can give the carrier grounds to deny coverage on a "late notice" or "prejudice to the carrier" theory. Do not wait. Send the lawsuit papers (the complaint and the summons) to the claims office that has been handling the matter, with a clear written request for defense and indemnity.

If Your Insurance Carrier Refuses to Defend

Sometimes a carrier disputes coverage and refuses to provide a defense. This puts you in a serious position because you must respond to the lawsuit within 20 days regardless of the coverage dispute. If you find yourself in this position, hire your own counsel immediately to:

• File an answer to the complaint to avoid default
• Pursue a separate action against the carrier for breach of the duty to defend
• Negotiate with the plaintiff while the coverage dispute is resolved

The 20-Day Deadline

Florida Rule of Civil Procedure 1.140(a)(1) requires a defendant to serve a response (typically an answer, but sometimes a motion to dismiss or a motion for more definite statement) within 20 days after service of the complaint. Service is most often accomplished by personal delivery of the summons and complaint to you by a process server or sheriff's deputy. The 20-day clock starts the day you are served, not the day you read the papers or the day you call your lawyer.

Defenses That May Be Available

Personal injury defendants in Florida have a range of potential defenses depending on the case:

• Comparative negligence. Florida applies modified comparative negligence with a 51% bar — if the plaintiff was more than 50% at fault, recovery is barred entirely.
• Statute of limitations. For negligence claims arising on or after March 24, 2023, the statute is two years.
• Assumption of risk in some recreational contexts (gym injuries, equine activities, sports).
• Failure to meet the serious injury threshold in auto cases under § 627.737.
• Failure to satisfy § 768.0755 in slip and fall cases — the constructive-knowledge requirement.
• Lack of causation — the alleged injuries were not caused by the incident.
• Pre-existing conditions that account for the alleged damages.
• Florida Statute § 768.0755 in slip and fall cases.
• Sovereign immunity in cases against government entities.
• Statutory caps on damages in certain categories.

What Not to Do

• Do not call the plaintiff or the plaintiff's lawyer to "explain your side." Anything you say can be used against you.
• Do not destroy or alter any evidence related to the incident — your texts, your phone records, your vehicle, your camera footage. Spoliation of evidence has serious legal consequences.
• Do not delete social media posts related to the incident or the plaintiff. Defense lawyers will subpoena your accounts and any deletions can be used against you.
• Do not admit fault in writing or in conversation with anyone other than your own lawyer.
• Do not ignore the lawsuit. Default judgments are real and they cost real money.

Settling vs. Defending

Many personal injury lawsuits resolve through settlement before trial — usually within the limits of the defendant's available insurance. Whether to settle and on what terms is the carrier's decision in most cases (subject to the duty of good faith owed to you), but you have the right to be kept informed and to give consent in many policies. If the demand is within policy limits and the carrier refuses to settle, the carrier may face third-party bad-faith exposure for any later excess judgment against you.

If you have been sued in Miami-Dade, Broward, or Monroe County for a personal injury claim and need defense counsel, contact the Law Offices of Albert Goodwin. Call 786-522-1411 or email [email protected].