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November 11, 2014

Florida Personal Injury Law: Use Prior Medicals to Prove Damages

cube.jpgClaiming that the plaintiff's injuries are preexisting is a favorite defense tactic. Less responsibility for them. Some injuries, like herniated intervertebral discs and torn or frayed shoulder tendons, are extremely susceptible to this tactic. The defense argument is that the conditions are the result of natural aging and/or prior accidents.

Whenever possible, we like to counter this tactic by presenting prior medical records that are silent with regard to complaints similar to those for which we are seeking compensation. While this strategy may not eliminate entirely the preexisting condition argument, at the very least it shows that any such preexisting condition was aggravated in the accident. Florida law authorizes compensation for aggravation. See C. F. Hamblen, Inc. v. Owens, 172 So. 694 (Fla. 1937) and Florida Standard Jury Instruction 501.5a.

One of our recent cases demonstrates the point. Between September, 2013 and March, 2014, our client was involved in three separate motor vehicle accidents. While the third was the most serious, she sought medical treatment from the same board certified orthopedist for neck and back pain in all three. The doctor ordered cervical and lumbar MRIs to assist in diagnosing her injuries.

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June 13, 2014

Florida's Second DCA Defines the Word "Loans" Under Dangerous Instrumentality Statute

truck2.jpgVicarious liability has been recognized in Florida since 1920. Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920). As applied to motor vehicles, the legal concept allows the owner of a vehicle to be held liable without fault for damages caused by the negligent operation of the vehicle by a consensual driver. This is known as the Dangerous Instrumentality Doctrine.

The financial exposure of owners for damages under the Dangerous Instrumentality Doctrine, as contained in section 324.021(9)(b)(3), Florida Statutes, is lower than it is for consensual drivers. For the statutory section to apply, the vehicle must have been loaned to the permissive user, as demonstrated by the following language: "3. The owner who is a natural person and loans a motor vehicle to any permissive user...."

Disputes have arisen over the meaning of the word "loans" in this section. Recently, in Youngblood v. Villanueva (opinion filed May 21, 2014), Florida's Second District Court of Appeal held that the vehicle involved in a crash, resulting in a wrongful death, had not been loaned. The facts of the case were set forth in the court's opinion:

The testimony at trial established that Youngblood consigned his uninsured vehicle to Teddy Aponte of Extreme Auto Sales with instructions to sell the vehicle. Youngblood testified that he never wanted to see the vehicle again after he handed the keys to Aponte, and he gave him no time limit in which to sell the vehicle. Because Aponte was driving the vehicle for his personal use when he struck and killed Eduardo Villanueva, Youngblood contended that this constituted a theft or conversion which exempted him from liability.

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June 12, 2014

Injured Motorcyclist Benefiting From Florida Uninsured/Underinsured Motorist (UM) Coverage

motorbike-1055084-m.jpgMotor vehicle bodily injury (BI) insurance compensates for economic and non-economic damages caused by the insured at-fault driver and vehicle owner. The amount available under any particular policy is capped by the coverage limits chosen by the insured.

BI coverage is not mandatory in Florida. The insured must pay a premium for the coverage on top of what is required to obtain the mandatory coverage of property damage liability and personal injury protection (PIP). For this reason, many Florida drivers do not maintain BI coverage.

Uninsured/Underinsured Motorist coverage is designed to fill the void where BI is either not available or the BI limit is less than the total damages sustained. Put another way, UM provides coverage for damages which you are legally entitled to recover from the owner or operator of an uninsured or underinsured motor vehicle who causes an accident which results in your bodily injury. Like BI, UM insurance is not mandatory.

Is UM available to a motorcyclist who sustains personal injuries in a crash caused by an uninsured motorist? Maybe.

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April 2, 2014

Purchase a Defense Attorney With Florida Bodily Injury (BI) Vehicle Insurance

handshake.jpgBodily Injury (BI) insurance sold in Florida covers the insured for damages caused by his or her negligence up to the policy limits. The minimum coverage limit is $10,000, but can be in the millions. Inexplicably, BI insurance is not mandatory in Florida. Only PIP and Property Damage Liability are mandatory.

While the difference between $10,000 and, say, $1,000,000 in BI coverage is significant, the insurance company has a duty to defend the insured equally regardless of the limit. This is another benefit of maintaining bodily injury insurance.

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April 1, 2014

Florida Vehicle Accident Law: Parental & Guardian Vicarious Liability for Minor

application.jpgThis link contains an overview of permit and license standards in Florida for drivers between the ages of 15 and 17.

Florida Statute §322.09(1)(a) requires an authorized adult (e.g., parent or guardian) to sign and verify the minor's application. In turn, §322.09(2) makes the adult jointly and severally liable for any damages caused by the negligence or willful misconduct of the minor under the age of 18 years when driving a motor vehicle, any motor vehicle, upon the roadway.

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February 17, 2014

List of Coverages Available Under A Florida Motor Vehicle Insurance Policy

car-insurance-policy.jpgEvery owner or registrant of an operable personal use motor vehicle is required to maintain only two types of insurance coverage in Florida: Personal Injury Protection and Property Damage - Liability. See Florida Statute 627.733 Required security. Nevertheless, other types of coverage are available under every policy written in Florida. While there's an additional premium cost associated with each different coverage, the benefits are valuable. For example, a person who has minimum coverage (PIP and Property Damage Liability) only, can still have his or her driving privileges suspended where their fault has caused someone else to sustain personal injuries. We are strong advocates for Bodily Injury and Unininsured/Underinsured Motorist insurance at substantial limits.

Personal Injury Protection (PIP).
This coverage is outlined in Florida Statute 627.736. For accidents that happen in Florida, PIP covers the named insured, relatives residing in the same household, persons operating the insured motor vehicle, passengers in such motor vehicle, and other persons struck by such motor vehicle and suffering bodily injury while not an occupant of a self-propelled vehicle. For accidents that happen outside Florida but inside the U.S. or Canada, PIP covers you and relatives who live in your home. In this case, you must be driving your own vehicle. Persons other than you or your relatives are not covered. PIP pays:

  • 80 percent of reasonable medical expenses related to the accident

  • 60 percent of lost wages as a result of the accident

  • $5,000 for death benefits
The typical policy limit is $10,000 per person, subject to a deductible of up to $2,000.

Property Damage Liability (F.S. 324.022). This insurance pays for damage you, or members of your family, cause to another person's property while driving. The term "property" includes, for example, a fence, telephone pole or building, as well as another car. Coverage applies even if you drive someone else's car. Depending on the terms and conditions of your policy, it may also include anyone else who uses your car with your permission. The minimum policy limit is $10,000.

Bodily Injury Liability (BI) (324.021). is generally not required in Florida. However, if you have been convicted of a DUI, BL is required for a period of three years after your license has been reinstated. If you were convicted on or before October 1, 2007, you must get a minimum of $10,000 worth of coverage per person and $20,000 worth of coverage per incident. If you were convicted after October 1, 2007, you must have $100,000 worth of coverage per person and $300,000 worth of coverage per accident.

BI pays for serious and permanent injury or death to others when your car is involved in an accident, and the driver of your car is found to be at fault to some extent. This policy pays for injuries caused by you and relatives who live with you, even if they are driving someone else's car. It also covers people who drive your car with your permission. BI coverage applies only after PIP benefits are exhausted. With this type of policy, the insurance company will also pay for your legal defense if you are sued. The minimum coverage limit is $10,000 per person/$20,000 per accident. The maximum can be in the millions. Umbrella coverage is an option to increase the coverage limit.

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January 22, 2014

Surprising Application of Uninsured/Underinsured Motorist (UM) Crash Coverage for Florida Insureds

puzzle2.jpgUnderstanding Florida motor vehicle insurance law can be puzzling. The various coverage options include Personal Injury Protection (PIP), Bodily Injury (BI), Comprehensive/Collision, Property Damage Liability, and Uninsured/Underinsured Motorist (UM/UIM). Presently, only PIP and Property Damage Liability are mandatory in Florida. Neither of these coverages compensates the victim of an accident for non-economic damages like pain and suffering arising from a bad injury. Only two of the coverages do: BI and UM.

UM is typically thought of as coverage purchased for the benefit of the named insured or insureds and resident relatives (see definition at Florida Statute 627.732(6)). It takes the place of BI where BI is not available (UM) or not adequate (UIM) because the loss exceeds available coverage limits. UM/UIM are not thought of as providing coverage to those other than named insureds and resident relatives. This thinking is incorrect.

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September 29, 2013

Vicarious Liability and Negligent Entrustment Create Liability for Florida Motor Vehicle Owners

truck2.jpgBecause motor vehicles, like guns, in the wrong hands and used improperly are likely to cause great damage, Florida has developed two legal doctrines aimed at holding vehicle owners liable for the harm resulting from the negligent operation of their vehicles by others. The doctrines are vicarious liability and negligent entrustment.

Regarding motor vehicles, vicarious liability has been recognized in Florida since 1920. Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920). Under this doctrine, a vehicle owner is liable without fault for damages caused by the negligent operation of his or her vehicle by a consensual driver. (The owner is not liable, for example, if the vehicle is stolen. However, the doctrine may be applied against the owner if a non-consensual driver comes into possession of a vehicle through the owner's negligence, such as where the owner leaves his car keys out at a house party of unsupervised young drinking adults. This element can bleed into the doctrine of negligent entrustment, explained below.) Damages available from the vicariously liable vehicle owner are capped by Florida Statute 324.021(9)(b)3, which means that actual damages may exceed the owner's exposure.

The distinguishing element of negligent entrustment from vicarious liability is that the owner is independently at fault in granting consensual use of the vehicle. Florida courts consistently hold that one who negligently entrusts a car to someone is liable for damages flowing from the misuse of that car. Clooney v. Geetting, 352 So. 2d 1216 (Fla. 2nd DCA 1977) ("we see no reason why this theory is not available to claimants injured in automobile accidents in this state.") The Florida Supreme Court long ago held that because the use of a dangerous instrumentality involves such a high degree of risk of serious injury or death, the highest degree of care is required. Skinner v. Ochiltree, 5 So. 2d 605 (Fla. 1941).

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July 16, 2013

Strict Vicarious Liability Under Florida Tort Law for All-Terrain Vehicle (ATV) Accidents (Are ATVs Dangerous Instrumentalities?)

ATV.jpgFlorida's dangerous instrumentality doctrine "imposes strict vicarious liability upon the owner of a motor vehicle who voluntarily entrusts that motor vehicle to an individual whose negligent operation causes damage to another." Aurbach v. Gallina, 753 So. 2d 60, 62 (Fla. 2000). "Operation of a vehicle falls within the strict liability doctrine because a vehicle is dangerous to others when used for its 'designed purpose.'" Harding v. Allen-Laux, Inc., 559 So. 2d 107, 108 (Fla. 2d DCA 1990) (quoting Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629, 638 (Fla. 1920)).

In Salsbury v. Kapka, 41 So. 3d 1103 (Fla. 4th DCA 2010), the issue presented on appeal was "whether an all-terrain vehicle ("ATV") is a '"dangerous instrumentality"' under Florida's tort law.

Due to a lack of evidence, the appellate court (4th DCA) withheld judgment on the issue. Instead, it remanded the case to the trial court for the parties to gather more evidence.

In Meister v. Fisher, 462 So. 2d 1071 (Fla. 1984), the Florida Supreme Court held that a golf cart was a dangerous instrumentality. It considered three factors in making its decision: whether golf carts fit the statutory definition of "motor vehicle"; whether golf carts were extensively regulated by statute; and record evidence regarding the causes and consequences of golf cart accidents.

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July 8, 2013

Co-Ownership of Florida Motor Vehicle Can Mean (Full) Liability

crushed vehicle.jpgFlorida's Dangerous Instrumentality Doctrine, a part of Florida jurisprudence since 1920 (Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920)), holds a motor vehicle owner vicariously liable for damages caused by the negligent operation of his or her vehicle by a permissive user. The damage caps contained in Florida Statute 324.021(9)(b)(3) limit the owner's liability.

In Ortiz v. Regalado, So.3d. , 38 FLW D502a (Fla. 2d DCA 3-1-13), a vehicle owner asserted that he was entitled to this cap protection for an accident caused by the co-owner of his vehicle. The owners of the vehicle were father and son. The son crashed their jointly owned vehicle, killing a minor child. Father and son we're sued. The father was sued on the theory of vicarious liability as the owner of the vehicle. The son was sued as the owner and negligent operator.

The jury awarded millions in damages allocated between the two defendants. .

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May 11, 2013

Maintain Motor Vehicle Bodily Injury (BI) Insurance Coverage to Avoid Suspension of Florida Drivers License (DL)

car-insurance-policy.jpgFlorida drivers are surprised to learn that their license privileges can be suspended following a crash determined to be their fault which results in death or bodily injury. They mistakenly believe that being in compliance with the state's minimum insurance requirements protects them against this and other negative consequences of a crash. (To appreciate some of the misunderstanding, read this blog: "Full Coverage" Vehicle Insurance Does Not Mean What Most Floridians Think.)

There are only two types of vehicle insurance coverage required to lawfully register and operate a motor vehicle in Florida, Personal Injury Protection (PIP) and Property Damage - Liability. Neither coverage compensates for death or bodily injury. The only type of third party coverage (as opposed to first party coverage, the subject of another conversation) that does is called Bodily Injury or BI. It is described at Florida Statute Section 324.021 (7). Without BI coverage, the vehicle owner, whether or not the at-fault operator of the vehicle (read, Florida Motor Vehicle Owners Accountable for Damages Without Driving Negligently), can have his drivers license suspended and all vehicle registrations suspended. See the authority for these principles at Florida Statutes 316.066(3)(a)1, 324.051(2)(a), and Section 324.021 (7).

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January 22, 2013

Gifting Away Vicarious Liability Under Florida's Dangerous Instrumentality Doctrine

people.jpgFlorida law has long recognized that a car is a dangerous instrumentality. (The dangerous instrumentality doctrine was adopted in Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920).) This is based on the simple fact that a car, in the wrong hands and used improperly, is likely to cause great damage. To discourage owners from being careless in the use of their vehicles by others, Florida law holds them responsible for the negligent acts of consensual drivers. This is known as vicarious liability, or liability without fault. (Owners can also be liable under a different legal theory known as negligent entrustment. See this blog for an explanation of the theory: Florida Motor Vehicle Owners Accountable for Damages Without Driving Negligently.)

With rare exception*, vicarious liability is determined through title ownership. This proposition gained solid footing in Metzel v. Robinson, 102 So.2d 385 (Fla.1958), which established the following legal standards: (1) as a matter of law, if a person causes or permits his name to be on the title when the vehicle is acquired, he cannot contradict the title by claiming that he did not intend to be an owner at the outset; (2) as a matter of law, once that person has caused his name to be affixed to the title, he must take some affirmative action to divest himself of that interest to avoid liability; and (3) as a matter of law, relinquishing possession of and having nothing to do with the vehicle after its acquisition is not sufficient to divest that person of his legal interest. (This summary of Metzel is laid out by the 5th DCA, in Bowen v. Taylor-Christensen, 98 So.3d 136, @ 142 (Fla. 5th DCA 2012), a must-read case.)

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January 9, 2013

Understanding Florida UM (Uninsured/Underinsured) Coverage

maze.jpgUninsured/Underinsured Motorist (UM) insurance coverage in Florida, located in F.S. 627.727, is first party insurance to compensate insureds for economic losses (e.g., medical expenses and lost wages) and non-economic damages (e.g., pain & suffering) resulting from motor vehicle accidents. Although it must be offered by every carrier authorized to sell motor vehicle insurance in Florida, unlike PIP and property damage liability it is not mandatory, so it can be rejected.

Besides the statute, a good place to start to gain an understanding of UM coverage is the Supreme Court of Florida case Mullis v. State Farm Mut. Auto. Ins. Co., 252 So.2d 229 (Fla. 1971). While the court majority provides a thorough overview of UM law, the holding itself is limited to whether or not a resident relative injured while operating a vehicle owned by another resident relative, but not covered under the UM policy, is entitled to UM benefits. The explicit terms of the insurance policy excluded coverage under these circumstances. The trial court agreed that the exclusion defeated plaintiffs' cause of action and the First District Court affirmed, on appeal, citing in support its decision in United States Fidelity & Guaranty Co. v. Webb, Fla.App. 1966, 191 So.2d 869. The Supreme Court decided that the exclusion was contrary to the UM statute and, thus, uneforceable. It explained:

Whenever bodily injury is inflicted upon named insured or insured members of his family by the negligence of an uninsured motorist, under whatever conditions, locations, or circumstances, any of such insureds happen to be in at the time, they are covered by uninsured motorist liability insurance issued pursuant to requirements of Section 627.0851. They may be pedestrians at the time of such injury, they may be riding in motor vehicles of others or in public conveyances and they may occupy motor vehicles (including Honda motorcycles) owned by but which are not "insured automobiles" of named insured.

The court pointed out that this level of coverage is not extended to "other persons potentially covered who are not in the class of the named insured and relatives resident" in the named insured's household. Importantly,

"These latter are protected only if they receive bodily injury due to the negligence of an uninsured motorist while they occupy the insured automobile of the named insured with his permission or consent."

CAVEAT: After Mullis, the legislature amended section 627.727, Florida Statutes (1989), to allow insurers to offer limitations on the coverage provided by uninsured motorist coverage if certain statutorily mandated notice requirements are met. See, Carbonell v. Automobile Ins. Co., 562 So. 2d 437 (Fla 3rd DCA 1990).Specifically, the current version of subsection (9)(d) of section 627.727 provides:
The uninsured motorist coverage provided by the policy does not apply to the named insured or family members residing in her or his household who are injured while occupying any vehicle owned by such insureds for which uninsured motorist coverage was not purchased.

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December 20, 2012

Florida Motor Vehicle Owners Liable for Accidents Without Being at Fault

crushed vehicle.jpgFlorida law has long recognized that a car is a dangerous instrumentality. This is based on the simple fact that a car, in the wrong hands and used improperly, is likely to cause great damage. In consideration of this unique characteristic, two legal doctrines have developed in Florida to hold vehicle owners to account for damages resulting from the negligent operation of their vehicles by others. The two doctrines are vicarious liability and negligent entrustment.

As pertains to motor vehicles, vicarious liability has been a part of Florida jurisprudence since 1920. Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920). The doctrine makes a vehicle owner liable for damages caused by the negligent operation of his vehicle by a consensual driver. The key element of the doctrine is that the owner is liable without being at fault. While this no-fault element can be a good thing for accident victims, the doctrine has limitations. In particular, damages against the vicariously liable vehicle owner are capped by Florida Statute 324.021(9)(b)3. This means that regardless of actual damages, the vehicle owner pays no more than what is designated by statute. In many cases -- for instance, those involving catastrophic injuries -- actual damages will greatly exceed the statutory caps.

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November 28, 2012

Florida Supreme Court Settles Rear-End Crash Presumption Controversy

accident scene.jpgIn November, 2012, the Supreme Court of Florida, in Cevallos v Rideout (No. SC09-2238), issued an opinion that buried a misguided and out-dated 2009 decision by the Fourth District Court of Appeals. (Contemporaneously with its decision in Cevallos, the court issued a similar opinion in Birge v. Charron, No. SC10-1755 (Nov. 21, 2012).) The opinion the Supreme Court shot down is that a person injured in a vehicle which has struck the rear of another vehicle cannot prevail unless it is shown that the driver of the trailing vehicle was completely blameless. The 4th's opinion was in direct conflict with decisions from various district courts of appeal in Florida. Charron v. Birge, 37 So. 3d 292 (Fla. 5th DCA 2010), Cleaveland v. Florida Power & Light, Inc., 895 So. 2d 1143, 1145 (Fla. 4th DCA 2005), Jefferies v. Amery Leasing, Inc., 698 So. 2d 368, 371 (Fla. 5th DCA 1997), Pollock v. Goldberg, 651 So. 2d 721, 722-24 (Fla. 4th DCA 1995), Johnson v. Deep South Crane Rentals, Inc., 634 So. 2d 1113 (Fla. 1st DCA 1994), and Edward M. Chadbourne, Inc. v. Van Dyke, 590 So. 2d 1023 (Fla. 1st DCA 1991).

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