Car, Truck & Motorcycle Accidents

June 11, 2025

Jeffrey P. Gale, P.A. // Understanding Florida’s Rear-End Collision Presumption

In 1958, Florida joined a small number of states in adopting a legal presumption of negligence against trailing drivers involved in rear-end motor vehicle collisions. This shift was established in McNulty v. Cusack, 104 So.2d 785 (Fla. 2d DCA 1958), and later endorsed by the Florida Supreme Court in Bellere v. Madsen, 114 So.2d 619 (Fla. 1959).

The Legal Rationale

The presumption is rooted in practical evidentiary concerns. Typically, plaintiffs bear the burden of proving all four elements of negligence: duty, breach, causation, and damages. But in rear-end crashes, plaintiffs often know they were hit from behind but have no access to the circumstances leading up to the impact—leaving gaps in proof for breach and causation.

To address this, Florida courts created a rebuttable presumption: if a rear-end collision occurs, the trailing driver is presumed negligent. This shifts the burden of production to the defendant, who must offer a “substantial and reasonable explanation” to overcome the presumption. If successful, the case proceeds to the jury without the benefit of the presumption. See Gulle v. Boggs, 174 So.2d 26, 28–29 (Fla. 1965); Brethauer v. Brassell, 347 So.2d 656 (Fla. 4th DCA 1977).

Originally developed during Florida’s contributory negligence era—where any negligence on the plaintiff’s part barred recovery—the rule had significant weight. Under today’s comparative fault framework, however, negligence is apportioned, and partial fault does not automatically defeat a claim. See Shayne v. Saunders, 176 So. 495 (Fla. 1937); Stephens v. Dichtenmueller, 207 So.2d 718 (Fla. 4th DCA 1968), quashed on other grounds.

June 10, 2025

Jeffrey P. Gale, P.A. /// Reimbursement Rights of Health and Disability Insurers in Florida Personal Injury Cases

by Jeffrey P. Gale, P.A.

It is common for health and disability (lost wages) insurance carriers to pay benefits to their insureds who are injured due to someone else’s negligence. Many of these policies include reimbursement provisions allowing the insurer to recover payments from any personal injury settlement or judgment obtained by the insured.

How Much Must Be Repaid?

The reimbursement amount depends on two key factors:

Policy Language
The Source of the Settlement or Judgment

Most policies state that the insurer is entitled to full reimbursement from the insured’s recovery—often before the insured or their attorney receives anything. However, when the recovery is from a tortfeasor (the at-fault party), Florida law may limit the insurer’s rights.

June 8, 2025

Jeffrey P. Gale, P.A. // Understanding Workers’ Compensation Liens and Uninsured Motorist Claims Under Florida Law

by Jeffrey P. Gale, P.A.

It is not uncommon for employees to be injured in motor vehicle accidents while acting within the course and scope of their employment. Such incidents frequently implicate multiple layers of insurance coverage.

Regardless of fault, injured employees may be eligible for benefits including workers’ compensation, Personal Injury Protection (PIP), and health insurance (including Medicare). Workers’ compensation and PIP are considered primary over Medicare, meaning they must pay first. If Medicare does make a payment, it typically expects to be reimbursed from any subsequent workers’ compensation or personal injury recovery.

When an injured employee is not at fault, they may seek damages through a third-party civil action against the negligent driver and, if different, the vehicle’s owner. Recovery in these cases typically comes from the tortfeasor’s and owner’s bodily injury (BI) liability insurance or, if applicable, personal assets.

In many cases, however, the at-fault party either lacks BI coverage altogether or carries insufficient limits. Florida law addresses this risk through uninsured/underinsured motorist (UM/UIM) coverage, governed by § 627.727, Florida Statutes. This optional coverage is designed to fill the gap left by the inadequacy—or absence—of BI insurance.

Per § 627.727(1), the purpose of UM/UIM coverage is:

“…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.”

The Workers’ Compensation Lien Under § 440.39

Section 440.39, Florida Statutes, grants workers’ compensation (WC) carriers an equitable lien on any judgment or settlement obtained by the injured worker from a third-party tortfeasor. This lien allows the carrier to recover benefits previously paid out, including indemnity and medical expenses.

April 30, 2025

Jeffrey P. Gale, P.A. /// Uber Drivers and Passengers, Beware!

by Jeffrey P. Gale, P.A.

Much has been written about the type of insurance coverage available to Uber passengers and other third parties for accidents caused by Uber drivers. Less has been written about the coverage available to Uber drivers and their passengers for injuries caused by third parties such as other drivers.

Currently, we are handling a case for an Uber driver who was hurt through the negligence of another driver. Our client’s passenger was also hurt.

Florida motor vehicle insurance policies offer a variety of coverages. For individuals, only Property Damage Liability and PIP are mandatory. The other available coverages are Uninsured Motorist/Underinsured Motorist (UM/UIM), Comprehensive, Collision, and Medical Payments. A premium is charged for each type of coverage.

Uber maintains insurance coverage in Florida with Progressive. We received a copy of the policy applicable to our accident. The available coverages are:

Liability to Others – Bodily Injury and Property Damage Liability – $1,000,000 combined single limit
Comprehensive – $2,500
Collision – $2,500
Medical Payments – $5,000 each person

Uber rejected UM/UIM. PIP was not an option.

March 18, 2025

Jeffrey P. Gale, P.A. /// Practice Pointer: Keep Your Eye On the Ball

by Jeffrey P. Gale, P.A.

Everyone is familiar with the idiom, “Keep your eye on the ball.” What it means, quite simply, is to keep one’s attention focused on the matter at hand. Lawyers must remember this during intense situations.

Last week we experienced just such an intense situation. In a case involving severe personal injuries sustained by our client, we attended a hearing on the Defendant’s motion for summary judgment. The corporate defendant was asking the court to enter a judgment that it was not vicariously liable for the negligence of its agent. In other words, Defendant was asking the court to throw out the case against it. Serious stuff.

Defendant’s motion was brought under Florida Rule of Civil Procedure 1.510, which reads in pertinent part as follows:

(a) Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary judgment, identifying each claim or defense-or the part of each claim or defense-on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law (bold added for emphasis).

The burden is on the moving party (in our case, the Defendant) to demonstrate the absence of genuine material facts, that no material issues remain for trial, and that the movant is entitled to judgment as a matter of law. See, Florida Rule of Civil Procedure 1.510(a). “An issue is genuine if ‘a reasonable trier of fact could return judgment for the non-moving party,’ and ‘[a] fact is material if it might affect the outcome of the suit under the governing law.’” Birren v. Royal Caribbean Cruises, LTD, 2022 WL 657626, at *2 (S.D. Fla. March 4, 2022), quoting, Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11^th Cir. 2008) and Anderson v. Liberty Lobby, Inc., 477 U.S. 22, 247-48 (1986).

July 21, 2024

Jeffrey P. Gale, P.A. // Comparative Fault Not Part of Manfredo Formula Equation

by Jeffrey P. Gale, P.A.

Not infrequently, both a workers’ compensation case and a personal injury liability case will arise from the same accident. For example, a construction site supervisor involved in a motor vehicle crash while traveling to Home Depot for supplies can pursue workers’ compensation benefits from the employer and civil liability damages from the at-fault party.

Florida Statute 440.39(2) provides that “the employer or, in the event the employer is insured against liability hereunder, the insurer shall be subrogated to the rights of the employee or his or her dependents against such third-party tortfeasor.” This means that the employer and its workers’ compensation insurance carrier are entitled to recover a portion of their expenditures from money the injured employee receives from the at-fault third party.

Typically, it is not a dollar-for-dollar recovery. The formula for the recovery is contained in section 440.39(3)(a).

April 29, 2024

Jeffrey P. Gale, P.A. // Florida Fails Again at Mandating Bodily Injury Insurance Coverage

by Jeffrey P. Gale, P.A.

For the eighth year in a row, the Florida Legislature has considered but failed to make bodily injury (BI) insurance coverage mandatory for every owner or operator of a motor vehicle required to be registered in this state. The two bills proposed for this reason during the recently concluded legislative session failed to receive a committee hearing.

Florida and New Hampshire are the only two states in the Union that do not require all drivers to carry BI coverage.

What Florida does require is personal injury protection or PIP and property damage (PD) liability coverage in the amount of $10,000 because of damage or destruction to the property of others in a crash.

Three years ago, Florida’s Legislature passed a bipartisan bill that would have required BI coverage. Pressured by the insurance industry, Gov. Ron DeSantis vetoed the bill. This year’s proposed bills addressed some of the concerns expressed by Gov. DeSantis when he vetoed the bill. Nevertheless, the insurance industry kept the bills from gaining traction.

April 22, 2024

Jeffrey P. Gale, P.A. // Republicans Push Sovereign Immunity for Private Companies

by Jeffrey P. Gale, P.A.

This blog is the second on recent efforts by Republican legislators with the consequence of making Florida’s roads and highways more dangerous. (The first blog: Jeffrey P. Gale, P.A. // Republican Legislators Work to Make Florida’s Roadways Less Safe.)

Section 768.28(5)(a), Florida Statutes limits the recovery against the state and its agencies and subdivisions for tort lawsuits to $200,000 per individual claim and $300,000 total for all claims arising out of the same incident or occurrence.

No matter how catastrophic and life-altering the injuries may be or whether death results from the negligence of the sovereign, this is the hard cap.
It does not matter what a judge or jury decides regarding the extent of the damages.

Section 768.28(5)(a) is the outgrowth of section 768.28(1), which is a limited waiver by the state of the doctrine commonly referred to as “Sovereign Immunity.” The doctrine is derived from English common law under which the King could not be sued on the theories that he could do no wrong, and that there could be no legal rights against the authority that makes the laws upon which the rights depend. See Miles McCann, Visiting Fellow, National Association of Attorneys General, State Sovereign Immunity, Nov. 11, 2017, https://www.naag.org/attorney-general-journal/state-sovereign-immunity/(last visited Jan. 23, 2024).

In Alden v. Maine, 527 U.S. 706, 728 (1999), the Supreme Court of the United States held that the doctrine was adopted by our country’s Founders in the Constitution itself rather than the Eleventh Amendment, solidifying its place in American jurisprudence. The doctrine is available to the federal government and every state.

Not every state chooses to hide behind sovereign immunity. California and New York, states with large populations and high costs of living and medical care like Florida, have no caps on suits against their state and local governments. Among the states using cap limits, Florida’s numbers are some of the lowest, making them a mere slap on the wrist to wrongdoers and failing to encourage safer practices and procedures.

December 22, 2023

Jeffrey P. Gale, P.A. // Recovering Uninsured (UM) Motorist Benefits for Injuries Caused by Road Debris

by Jeffrey P. Gale, P.A.

Florida motor vehicle insurance policies offer a variety of coverages. PIP and Property Damage — Liability are mandatory coverages. Others, like bodily injury and uninsured/underinsured motorist (UM/UIM) are not.

An uninsured vehicle is one that does not maintain bodily injury coverage or, like a hit-and-run phantom vehicle, cannot be identified.

Interestingly, UM coverage may be available for injuries caused by road debris from an unknown source. However, the cases hold that the inference the debris came from another vehicle must be inescapable, or at least “outweigh all contrary inferences to such extent as to amount to a preponderance of all of the reasonable inferences that might be drawn from the same circumstances.” Voelker v. Combined Insurance Co. of America, 73 So.2d 403, 405 (Fla. 1954), citing King v. Weis-Patterson Lumber Co., 124 Fla. 272, 168 So. 858 (1936). See also Little v. Publix Supermarkets, Inc., 234 So.2d 132 (Fla. 4th DCA 1970).

In Allstate Insurance Company v. Bandiera, 512 So.2d 1082 (Fla. 4th DCA 1987), the appellate court denied coverage to a passenger injured by a cinder block from an unknown source. It felt that it was just as plausible that the cinder block was thrown at the car by pedestrians standing at the side of the road.

January 21, 2023

Jeffrey P. Gale, P.A. // Insuring Against Damages in Florida Motor Vehicle Crash Cases

by Jeffrey P. Gale, P.A.

Accidents happen. Being properly insured for motor vehicle crashes is good for the insured and for persons harmed through the insured’s negligence.

Florida is one of only three states that does not require owners of motor vehicles registered in the state to maintain bodily injury (BI) insurance. Bodily injury insurance covers losses for economic (e.g., lost wages and medical bills) and non-economic damages, also known as human damages, such as pain and suffering, disfigurement, mental anguish, and the loss of capacity for the enjoyment of life.

While BI coverage is not mandatory, it is available from every insurance carrier that sells motor vehicle insurance in the state. The first thing to keep in mind when securing BI insurance is the coverage limit under the policy. As with anything else, you get what you pay for. The minimum BI coverage limit in Florida is $10,000; the sky is the limit for how much coverage can be purchased. Individuals and companies with large assets subject to judgments are well-advised to maintain high coverage limits.