Florida Injury Attorney Blawg

Florida 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).

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

Florida 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.)

Continue reading "Gifting Away Vicarious Liability Under Florida's Dangerous Instrumentality Doctrine" »

Uninsured/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.

Continue reading "Understanding Florida UM (Uninsured/Underinsured) Coverage " »

Florida 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.

Continue reading "Florida Motor Vehicle Owners Accountable for Damages Without Driving Negligently" »

In 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).

Continue reading "Florida Supreme Court Settles Rear-End Crash Presumption Controversy" »

Fault is an essential element of proof in every Florida personal injury negligence case, including motor vehicle accident cases. To recover for losses (economic and property) and personal injuries, the complaining party must prove that his/her damages were caused by another party's negligence.

Although evidence of who was ticketed by the investigating law enforcement officer may have bearing in pre-trial settlement discussions, the evidence is inadmissible in civil court. Moreover, for traffic infractions that require a court appearance, per Florida Statute 318.19, no contest or not guilty pleas followed by an adjudication of guilt, prevent admissibility of the adjudication in the civil trial. Finally, for some minor infractions, a guilty plea, per Florida Statute 316.650(9) cannot be used as evidence in the civil case.

In some instances a traffic court guilty plea can can be admissible in civil court to prove fault. When a traffic defendant pleads guilty to (1) Any infraction which results in a crash that causes the death of another; and (2) Any infraction which results in a crash that causes "serious bodily injury" of another as defined in s. 316.1933(1), the pleas are admissible in a civil trial. See Mackey v. Reserve Ins. Co., 349 So.2d 830 (Fla. 1st DCA 1977) (A guilty plea to one of the traffic offenses enumerated in F.S. 318.19 is admissible in civil court.)

Continue reading "Traffic Court Guilty Plea as Proof of Fault in Florida Motor Vehicle Personal Injury Cases" »

The only motor vehicle insurance coverages the owner of a vehicle registered in Florida must maintain are Personal Injury Protection (PIP) and Property Damage - Liability. Nothing else is required to lawfully operate a vehicle in Florida.

However, if the vehicle owner or a consensual driver of the owner's vehicle causes an accident involving injury or death, these basic coverages will not prevent the owner from losing his drivers license and having all vehicle registrations suspended. Sections 316.066(3)(a)1 and 324.051(2)(a) Florida Statutes.

There is only one type of insurance coverage that can prevent these these things from happening: Bodily Injury Liability (a/k/a BI). Section 324.021 (7) Florida Statutes. (The Florida Department of Motor Vehicles is responsible for suspending the DL and registrations. It's current policy is that neither action will be taken until a judgment is entered against the vehicle owner. This requires that a lawsuit be pursued to completion against the vehicle owner.)

Continue reading "Keep Your Florida Drivers License by Maintaining Bodily Injury Insurance (or, Basic Coverage is not Enough)" »

Rear-end crashes represent nearly 25% of all roadway motor vehicle accidents. The natural inclination is to blame the driver of the approaching vehicle, the one that slammed into the rear of the other vehicle. Florida law supports this notion by creating a presumption of fault against the approaching driver.

Law enforcement, the courts, and personal injury lawyers are well-advised to think twice before jumping to this conclusion. They must understand that attentive drivers sometimes crash their vehicles into the rear-end of leading or stationary vehicles in broad daylight through no fault of their own.

Our firm and Domnick & Shevin PL are involved in a lawsuit against a motor coach company and its driver for a client who drove his employer's passenger bus into the rear of the motor coach. The motor coach was stopped in a through lane without any traffic forcing it to stop or slow down. It did not have a flat tire, run out of gas, or have a mechanical emergency. Our client, who approached from behind in the same lane, had a clear view of the stopped vehicle beginning from approximately 1000 feet away. There were no cars in front of him in any of the approaching traffic lanes. Our client noticed the motor coach from a distance off, but it wasn't until he was too close to avoid the accident that he perceived it was stopped. Our client sustained catastrophic injuries.

We have hired numerous experts to explain various elements of the case. An engineer will discuss speeds, distances and things of that nature. A trucking expert will describe industry standards and safety issues. Neither of these experts, nor the many doctors who will talk about our client's horrible injuries and the economist, who will calculate past and future economic damages, are qualified to explain the phenomenon of why a trailing driver can plow into the rear of another vehicle without being at fault.

That is the job of a human factors expert. We have hired one of the best.

Continue reading "The Science of "Looming Motion" and "Looming Threshold" in Rear-End Motor Vehicle Crashes" »

The primary responsibility of a plaintiff's personal injury attorney is to maximize the client's recovery. Typical recoverable damages include lost wages (past & future), medical expenses, and compensation for pain and suffering (a/k/a non-economic damages).

A damage element often overlooked is the diminished value of a repaired vehicle. No matter how well a repair was done, the vehicle's value is diminished. Period. The attorney should try to recover the loss for his client. The recovery is supported by Airtech Service, Inc. v. MacDonald Construction Co., 150 So.2d 465 (Fla. 3rd DCA 1963).

Continue reading "Recover PIP Premiums and Vehicle Diminution Value in Florida Car Accident Cases" »

Astute personal injury lawyers always look for ways to maximize their client's financial recovery. Establishing aggravating factors against the at-fault party is one of the main ways of doing this. In motor vehicle accident cases, there is no better opportunity for scoring points against the liable party than connecting alcohol use to the accident.

The involvement of alcohol can lead to a claim for punitive damages. The procedure for claiming punitive damages and the standards for holding a defendant liable for punitive damages are set forth in Florida Statute 768.72.

A claim for punitive damages may not be plead in the initial complaint. Rather, the Plaintiff must seek leave of court to amend the complaint to claim punitive damages. The judge should allow the amendment if evidence in the record or proferred by the Plaintiff provides a reasonable basis for recovery of such damages. Simeon, Inc. v. Cox, 671 So.2d 158 (Fla.1996) and F.S. 768.72(1). Contrary to the proposition often put forward by Defendants, the statute does not require an evidentiary hearing to permit the amendment. Pursuant to section 768.72, a proffer of evidence can support a trial court's determination. Strasser v. Yalamanchi, 677 So.2d 455 (Fla. 2d DCA 1981).

768.72 says this about what must be shown to establish liability:

(2) A defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence. As used in this section, the term:

(a) "Intentional misconduct" means that the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage.

(b) "Gross negligence" means that the defendant's conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.

Continue reading "Special Considerations in Florida Motor Vehicle Crash Cases Involving Alcohol (DUI)" »

The essential parts of Florida House Bill 119, addressing Personal Injury Protection (PIP) benefits, were crafted in the closing days of the 2012 legislative session, sometimes behind closed doors, mostly without any public or committee vetting, and, of course, with undue influence from the insurance industry and not enough input from consumers. As has been widely reported, just as Governor Scott, the leading proponent of revising PIP, was lobbying legislators, United Group Underwriters, an affiliate of United Automobile Insurance Company, a leading Florida PIP carrier, gave $100,000 to his Let's Get to Work political committee. Not surprisingly, the end result of the bill is that consumers will receive less while PIP carriers profit more.

The beat goes on....

That said, consumers and lawyers must know the changes. Here's a brief summary of some of the important changes:

MEDICAL (unless otherwise indicated, these provisions become effective January 1, 2013):

• 14 Day Rule (Florida Statute 627.736(1)(a)1): Unless the insured receives medical care within 14 days after the motor vehicle accident from a hospital facility, emergency transport, an M.D., D.O., D.C., or D.D.S., there is no PIP coverage for any medical benefits.


• Followup medical care and services must be "consistent" with the underlying medical diagnosis provided pursuant to the services furnished within the first 14 days (F.S. 627.736(1)(a)2). Put another way, medical coverage is limited to the initial injury diagnosis.


• Medical Coverage Limited to $2500 unless "Emergency Medical Condition": The definition of "Emergency Medical Condition" is located at F.S. 672.732(16). Only the types of medical providers listed in F.S. 627.736(1)(a)3 are allowed to determine if the injured person has sustained an "Emergency Medical Condition." Chiropractors are not included in this list. Interestingly, if any medical provider listed in subparagraph 1 or subparagraph 2 determines that the injured person did not have an emergency medical condition, PIP benefits are limited to $2500. Chiropractors are listed in this group of medical providers.


• Massage and acupuncture no longer covered by PIP

OBTAINING PIP LEDGER (627.736(4)(j). The new statute only requires insurers to provide their insureds with PIP payment logs once litigation is commenced. This is silly; PIP carriers should be required to produce logs at all reasonable times including presuit. Some litigation is commenced because the insured, through no fault of his own, does not know what benefits have been paid. A ledger avoids this situation. Also, logs are needed to help resolve personal injury claims. It lets both sides know how much the amount of outstanding medical expenses. Even though current law, Southern Group Indemnity, Inc. v. Humanitary Health Care, Inc., 975 So.2d 1247 (Fla. 3rd DCA 2008), does not require carriers to provide ledgers presuit, they typically do as a courtesy. Let's hope the revised PIP statute does not put an end to this courtesy.

Continue reading "Summary of Important Changes to Florida's PIP Law (2012/2013) " »

Florida adheres to the dangerous instrumentality doctrine. The doctrine stands for the proposition that since motor vehicles are dangerous instrumentalities, their owners should be held liable for the negligent operation of the vehicles by persons to whom they have been entrusted. The doctrine has been a part of Florida law since 1920. Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920).

While Florida is one of only a handful of states to apply the doctrine, its impact has been watered down by arbitrary damage caps created by the Florida Legislature. The caps, contained in Florida Statute 324.021(9)(b)3, read as follows:

The owner who is a natural person and loans a motor vehicle to any permissive user shall be liable for the operation of the vehicle or the acts of the operator in connection therewith only up to $100,000 per person and up to $300,000 per incident for bodily injury and up to $50,000 for property damage. If the permissive user of the motor vehicle is uninsured or has any insurance with limits less than $500,000 combined property damage and bodily injury liability, the owner shall be liable for up to an additional $500,000 in economic damages only arising out of the use of the motor vehicle. The additional specified liability of the owner for economic damages shall be reduced by amounts actually recovered from the permissive user and from any insurance or self-insurance covering the permissive user. Nothing in this subparagraph shall be construed to affect the liability of the owner for his or her own negligence.

The imposition of owner liability is difficult to overcome. Consider these case examples:

• Susco Car Rental Sys. v. Leonard, 112 So.2d at 835, negligence of a person not allowed to drive bound the owner.


• Bowman v. Atlanta Baggage & Cab Co., 173 F. Supp. 282 (N.D. Fla. 1969), liability imposed even where driver exceeded stated area limitations.


• Tillman Chevrolet co. v. Moore, 175 So. 2d 794 (Fla. 1st DCA 1965), cert. discharged, 184 So. 2d 175 (Fla. 1986), owner liable even though accident caused by a hitchiker allowed to drive by a customer convicted of stealing the car.


• Ivey v. National Fisheries, Inc. 215 So. 2d 74 (Fla. 3d DCA 1968), employer who permitted a truck driver to use vehicle for delivery only between home and work liable for driving by drinking buddy given truck after worker stopped at bar and became intoxicated.

Rarer is the situation where owner liability is not imposed. Consider:

• The vehicle has been stolen. Read the Susco case;


• The vehicle has been used without authority by the employee of a facility where the vehicle has been left for repairs. Castillo v. Bickley, 363 So.2d 792 (Fla. 1978);


• The title is held for security purposes, as in a conditional sale; or,


• Where the title is only intended to be held temporarily, as where a transfer of title is in the process but not completed.

Continue reading "Vehicle Ownership and Florida's Dangerous Instrumentality Doctrine" »

To promote the gathering of facts surrounding motor vehicle accidents, the Florida Legislature has devised a number of statutes each with the essential character of compelling certain individuals to disclose information to law enforcement personnel.

• Florida Statute 316.066(1) requires a driver to make a report when involved in a crash where there is bodily injury, death, or damage to a vehicle


• 361.062(1) requires a driver to give his or her information to a police officer upon request when a crash results in injury or death


• 316.064(2) requires the occupant of a vehicle to make a report under sections 316.065 and .066 when the driver is physically incapable of making a report


• 316.064(3) requires the owner of a vehicle to make a report under chapter 316 when the driver is incapable of making a report


• 316.065(1) requires the driver of a vehicle involved in a crash resulting in injury or death to report the accident to the police

Some of the statements could be self-incriminating. To "ensure that the state does not violate an individual's constitutional privilege against self-incrimination when he or she is compelled to truthfully report to law enforcement the facts surrounding an automobile accident," a statutory privilege was enacted. State v. Cino, 931 So.2d, 164, 168 (Fla 5th DCA 2006). The current version of the privilege, contained at Section 316.066(4) Florida Statutes, reads as follows:

(4) Except as specified in this subsection, each crash report made by a person involved in a crash and any statement made by such person to a law enforcement officer for the purpose of completing a crash report required by this section shall be without prejudice to the individual so reporting. Such report or statement may not be used as evidence in any trial, civil or criminal.

The privilege is limited. First of all, the privilege only applies to a driver, owner, or occupant of a vehicle because these are the only people compelled to make a report under the statutes. Sottilaro v. Figueroa, District Court of Appeal of Florida, Second District (Opinion filed February 8, 2012). In Sottilaro, the young friend of a minor child killed while crossing a highway, was allowed to have his trial testimony impeached from statements he gave to a police officer at the accident scene.

Continue reading "Limited Application of Florida's Motor Vehicle Accident/Crash Report Privilege" »

For those who think that all politicians are alike, that it doesn't matter who is elected, think again. One need only look at what happened in the Florida legislature on Friday, March 9, 2012, to debunk the notion.

Tea-party darling Florida Governor Rick Scott and his right-wing Republican cohorts rammed through an anti-consumer, pro-insurance industry motor vehicle insurance law to rival any in the nation. It is so anti-consumer that even 8 Republican senators voted against it. Unfortunately, the bill passed in the Florida Senate by one vote.

The new law, effective January 1, 2013, deals with PIP (Personal Injury Protection) insurance. (Here's a link to the law, House Bill 119.)

PIP is a form of insurance that covers medical and lost wages arising out of motor vehicle accidents. The current PIP law covers a total of $10,000 in medical expenses and lost wages subject to a deductible, if any, chosen by the policy holder. Whether and how much is paid in medical expenses is based on the reasonableness and necessity of the medical care.

The new law adds more hurdles to obtaining the full $10,000 in medical coverage.

• If an insured fails to seek medical treatment within 14 days of the accident, PIP will not pay any medical expenses. None. It is not unusual for injuries to manifest themselves worthy of medical care more than 14 days after an accident. It is also not unusual for people with real injuries but busy schedules to need more than 14 days to obtain medical care. Factor in the difficulty of obtaining an appointment with a doctor and we anticipate that this provision will eliminate coverage for many policy holders.


• Unless the medical treatment is for an "Emergency Medical Condition," PIP payments will be limited to $2,500. (EMC is defined in the new legislation as: (a) Serious jeopardy to patient health; (b) Serious impairment to bodily function; (c) Serious dysfunction of any bodily organ or part.) This provision will likely spawn significant litigation from medical providers, especially for hospital emergency room services. Nonetheless, it is clearly a high standard that will reduce PIP payments in most cases.

Undoubtedly, the overall impact of the legislation will be to reduce PIP medical payments. Ironically, the legislation does not impose a mandatory reduction in insurance premiums.

Profits over people. And the beat goes on....

Continue reading "New Florida PIP Law (Effective 1/1/13) Hammers Consumers" »

Now you have it, now you don't.

This is a disappointment every plaintiff's personal injury lawyer experiences when learning that a wrongdoer's bodily injury insurance coverage is negated by a "Named Driver Exclusion." Hope is crushed like the vehicle in this blog.

The declarations page of a motor vehicle insurance policy will list the primary insured and other named insureds, usually family members with drivers licenses.

Bodily injury, or BI, coverage under the policy is protection, to the extent of the coverage limit, for personal injuries and economic losses sustained by third parties through an insured's negligence. Coverage information will also be listed in the declarations page. Since BI is not mandatory, a first glance at the dec page with BI coverage provides some consolation to those harmed by a wrongdoer insured's negligence.

Continue reading ""Named Driver Exclusion" is Valid in Florida" »