Naturally, some Uber drivers cause accidents. However, Uber does not require its Florida drivers to maintain bodily injury (BI) liability insurance. (BI is a type of liability insurance which compensates for personal injuries and economic losses caused by an at-fault party.) Moreover, Uber considers itself and its drivers exempt from §324.032 Florida Statutes, which requires owners or lessees of one or more taxicabs, limousines, jitneys, or “any other for-hire passenger transportation vehicles” to maintain 24-hour commercial liability insurance with limits of $125,000/250,000/50,000. Finally, Uber argues that its drivers are independent contractors, a position which, if correct, would shield Uber from liability for driver negligence. See § 440.02(15)(d) Florida Statutes for a comprehensive statutory definition of “independent contractor.”
Florida Statute §627.737(2) provides that a plaintiff may recover tort damages for pain, suffering, mental anguish, and inconvenience because of injury arising out of the use of a motor vehicle only if that injury or disease consists in whole, or in part of: (a) significant and permanent loss of an important bodily function; (b) permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement; (c) significant and permanent scarring disfigurement; or (d) death.* A plaintiff failing to meet any of these thresholds may recover only economic damages, such as medical expenses or lost wages
Florida law allows lawsuits against insurers whose denial of meritorious claims is in bad faith. Two types of bad faith claims are recognized: Common law, in the third party context only, and statutory (§625.155 Florida Statutes). Reasonable diligence and ordinary care are material in determining bad faith. See Campbell v. Gov’t Employees Ins. Co., 306 So.2d 525, 530-31 (Fla.1974).
Most Florida hospitals and many doctors have contracts with health insurance companies to provide services to covered insureds at discounted rates. The arrangement requires those providers to bill the carriers for covered services without seeking payment from insureds through self-pay and other sources such as third party liability insurance. Some contracts allow providers to collect copayments.
We are currently handling a car crash case involving a local hospital that purposely failed to bill our client’s health insurance company with the expectation of receiving more money from the proceeds of our client’s settlement with the at-fault driver’s bodily injury liability insurance company. The hospital filed a lien for charges totaling more than $39,000 for a three hour emergency room visit. (The hospital is located in Miami-Dade County. An old Dade County ordinance grants hospitals lien rights. However, the lien does not take precedent over contractual obligations between hospitals and insurers.) It received $8,000 from our client’s PIP insurance — not to be confused with health insurance — leaving a $31,000 balance. (We are questioning the hospital’s right to bill PIP. The money it received could have been used to pay medical providers who do not accept our client’s health insurance.) Since the bodily injury policy per person limit is $25,000, something has to give. (Bodily injury liability insurance provides coverage in case you cause an accident in which another person (or people) is hurt. It covers the damages that you are legally responsible for, and provides a legal defense if someone sues you for damages.)
Insurance companies selling coverage in Florida have a fiduciary obligation to protect their insureds from judgments exceeding the limits of their insurance policies. Berges v. Infinity Ins. Co., 896 So.2d 665 (Fla. 2004). The obligation was well articulated in Boston Old Colony Insurance Co. v. Gutierrez, 386 So.2d 783 (Fla.1980):
An insurer, in handling the defense of claims against its insured, has a duty to use the same degree of care and diligence as a person of ordinary care and prudence should exercise in the management of his own business. For when the insured has surrendered to the insurer all control over the handling of the claim, including all decisions with regard to litigation and settlement, then the insurer must assume a duty to exercise such control and make such decisions in good faith and with due regard for the interests of the insured…. The insurer must investigate the facts, give fair consideration to a settlement offer that is not unreasonable under the facts, and settle, if possible, where a reasonably prudent person, faced with the prospect of paying the total recovery, would do so. Because the duty of good faith involves diligence and care in the investigation and evaluation of the claim against the insured, negligence is relevant to the question of good faith.
Ordinarily, “[t]he question of failure to act in good faith with due regard for the interests of the insured is for the jury.” Gutierrez, 386 So.2d at 785; see also Campbell v. Gov’t Employees Ins. Co., 306 So.2d 525, 530-31 (Fla.1974) (“[R]easonable diligence and ordinary care [are] material in determining bad faith. Traditionally, reasonable diligence and ordinary care are considerations of fact — not of law.”).
In Florida’s civil justice system, unless a court is sitting as the trier of fact, which is the exception rather than the rule, the court’s role is typically limited to ruling on matters of law, leaving fact questions to be resolved by juries. Only when pleadings and evidence properly filed show that there is no genuine issue as to any material fact, is the court supposed to enter judgment as a matter of law. This is called Summary Judgment. See FRCP 1.510. Given the importance of juries in the civil justice system, the procedure is supposed to be used sparingly and with caution. (Citations omitted because they are so plentiful.)
Unfortunately, some Federal court trial judges have chosen to ignore this admonition. What follows is a discussion of some recent Federal Court insurance bad faith cases.
RULINGS FAVORING INSURANCE COMPANIES
Harris v. GEICO General Ins. Co., 961 F. Supp. 2d 1223 (S.D. Fla. 2013). The jury returned a verdict for Harris, the insured, concluding that Harris proved to a preponderance of the evidence that Geico acted in bad faith in failing to settle her claim during the 60-day safe harbor period (Fl. Stat. § 624.155(1)(a), (b)(1)). Geico moved for judgment as a matter of law during trial and renewed its motion subsequent to the jury verdict. Federal trial court judge Kenneth L. Ryskamp granted GEICO’s motion. He made the following points: (1) Fusion surgery was performed after the bad faith action was filed; (2) GEICO was not provided with evidence of a permanent impairment before the bad faith action was filed; and (3) the statutes (Fl. Stat. § 627.727(10) and § 624.155) do not say that the damages are what a jury awarded in an underlying liability action. See Geico General Ins. Co. v. Bottini, 93 So.3d 476 (Fla. 2d DCA 2012) (Altenbernd, J., concurring); King v. Government Employees Ins., Co., 2012 WL 4052271, No. 8-10-cv-977-T030-AEP (M.D.Fla. Sept. 13, 2012).
Coulter v. State Farm Mut. Auto Ins. Co., No. 4:12cv577-WS/CAS (N.D. Fla. 2014). The trial court entered Summary Judgment for State Farm. While the facts, which were convoluted, were not so much in dispute, the trial judge nevertheless took it upon himself to rule that the carrier’s actions did not amount to bad faith as a matter of law. The court’s action flies in the face of black letter law that “[t]he question of failure to act in good faith with due regard for the interests of the insured is for the jury.” The court’s opinion sets forth the facts in great detail. It’s an interesting read for how everyday issues are handled.
Houston v. Progressive American Ins. Co., No. 8:13-cv-194-T-35AEP (M.D. Fla. 2014). A multi-claimant case with limited insurance coverage involving varying degrees of injuries and a global settlement. The most seriously injured claimant alleged that Progressive acted in bad faith by scheduling a global settlement conference rather than tendering the policy’s $10,000 per person limit upon learning of her injuries. The court disagreed, granting Summary Judgment in Progressive’s favor. The court did, however, concede that there could be instances “in which the injuries to a specific victim are so grave, the injuries to the remaining potential claimants are so minor, and the concomitant documentation and information before the insurer of those injuries is so clear, that a duty arises on the part of the insurer to jettison the global settlement approach, which it unquestionably has the discretion to choose [italics added for emphasis], and make a full tender to the gravely injured victim.”
I have blogged here ad nauseam about the continual conflict between insurance companies and their insureds over claims. While carriers insist upon receiving premium payments timely, their all too common approach to the claims process is delay and deny.
Carriers have at their disposal a bag of tools designed to effectuate this delay/deny business model. Examination Under Oath (EUO) (an oral examination conducted under oath by an insurance company of an insured making a claim under a policy), Independent Medical Examination (IME), appraisal, policy application misrepresentation, refusal to cooperate are just some of the tools at their disposal. Some are statutorily prescribed, others are a matter of contract.
An insurance policy is a contract. While statutes control various rights and obligations between carriers and insureds, the terms of the insurance policy determine many others.
Courts frequently become embroiled in conflicts involving the application of contested policy provisions. One such conflict of significance was fought out in State Farm v. Curran, (Fla. 2014). The Florida Supreme Court framed the conflict as follows:
WHEN AN INSURED BREACHES A COMPULSORY MEDICAL EXAMINATION PROVISION IN AN UNINSURED MOTORIST CONTRACT, DOES THE INSURED FORFEIT BENEFITS UNDER THE CONTRACT WITHOUT REGARD TO PREJUDICE? IF PREJUDICE MUST BE CONSIDERED, WHO BEARS THE BURDEN OF PLEADING AND PROVING THAT ISSUE?
Curran, State Farm’s insured, sustained catastrophic injuries in a vehicle crash. Because the at-fault party’s insurance coverage was inadequate, Curran demanded from State Farm the $100,000 in UM available under his own policy. He gave State Farm thirty days to tender the money, estimating his damages to be $3.5 million because she suffered from reflex sympathetic dystrophy syndrome (RSD) type 1. On the 29th day, State Farm demanded that Curran undergo a Compulsory Medical Exam (CME) pursuant to the terms of the policy. Curran refused and proceeded to sue State Farm. A jury trial culminated in an award of $4,650,589 in damages to Curran.
Motor 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.
Florida Statute 624.155 provides a civil remedy for persons damaged by an insurer’s failure to settle claims in good faith. The remedy can include an award of damages in excess of the insured’s policy limits, attorney’s fees and litigation costs. This threat is the spur that motivates insurance companies to handle claims properly. (Side note: Insurance companies hate that their insureds have this stick at hand to keep them in line. Each legislative session for the past few years, Republican legislators friendly with the insurance industry have sponsored legislation to eliminate or water down the law. Thankfully, each effort has failed. Unfortunately, they will continue trying.)
The law was recently put to the test in Perdido Sun Condominium Association, Inc. v. Citizens Property Insurance Corporation, 129 So.2d 1210 (Fla. 1st DCA 2014).
Citizens is an insurer created by the legislature for the public purpose of providing “affordable property insurance to applicants who are in good faith entitled to procure insurance through the voluntary market but are unable to do so.” § 627.351(6)(a)1., Fla. Stat. As a creature of statute, Citizens’ operations, procedures, duties, and legal status are governed by section 627.351(6), Florida Statutes.
After its insured property was damaged by a hurricane in 2004, Perdido Sun made a claim on its insurance policy with Citizens. Perdido Sun was not satisfied with the amount of Citizens’ eventual payment on the claim and filed a breach of contract action to recover additional sums under the insurance contract. Perdido Sun prevailed on the breach of contract claim.
Based on the result in the breach of contract case, Perdido Sun filed a second lawsuit against Citizens for the civil remedy provided in section 624.155(1)(b)1., Florida Statutes, a statutory “bad faith” claim. Citizens asserted that it was immune from suit under section 627.351(6)(s)1., Florida Statutes, and that a statutory bad-faith action under section 624.155 was not among the specifically listed exceptions to this immunity. § 627.351(6)(s)1., a.-e., Fla. Stat.
Bodily 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.
This 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.
Many people, including some personal injury lawyers, believe that UM insurance always provides coverage when the insured is not at fault and there is no other insurance to cover the losses. This is wrong.
When the driver of an uninsured or underinsured (UIM) vehicle causes an accident, UM/UIM should kick in to compensate for losses such as wage loss, medical expenses, and pain and suffering. This is prescribed by Section 627.727(1) Florida Statutes, which provides, in pertinent part, as follows:
No motor vehicle liability insurance policy which provides bodily injury liability coverage shall be delivered or issued for delivery in this state with respect to any specifically insured or identified motor vehicle registered or principally garaged in this state unless uninsured motor vehicle coverage is provided therein or supplemental thereto for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom. (Italics provided)
Crashes without the wrongdoing of another driver do occur. Our office was recently retained by a woman who struck a tree after swerving her car to avoid hitting a dog that had suddenly entered the roadway. She sustained severe whiplash and a blow to the head which caused her to lose consciousness. She was rushed to the hospital by ambulance and admitted for testing and overnight observation. Her car was totaled. The accident was not her fault.