Articles Posted in Car, Truck & Motorcycle Accidents

Uber-300x145In a case with far-reaching implications, Florida’s Third District Court of Appeal ruled on February 1, 2017 that an Uber driver was not an employee of Uber. In McGillis v. Department of Economic Opportunity, the court decided that, based on the contract between the driver and Uber and the nature of their relationship, the driver was an independent contractor for the purpose of reemployment assistance under Chapter 443 Florida Statutes (2015).

While the case involves a relatively minor claim for unemployment compensation, the court’s ruling, with its in-depth analysis of Florida’s independent contractor law, will have consequences in other types of Florida cases.

In civilized society a person injured through the negligence of another party should have the right to be compensated for their losses by that party. However, what is good in theory (i.e., the right to pursue a recovery) does not always pan out in reality. Frequently, the at-fault party is not adequately insured, if insured at all, or does not have the personal means to cover the losses. It is the personal injury lawyer’s job to make every effort to find sources of payment.

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crushed vehicleBecause the vast majority of rear-end crashes are caused by the trailing driver, Florida decisional law places a presumption of fault on that driver. See generally Eppler v. Tarmac America, Inc., 752 So.2d 592, 594 (Fla. 2000) (explaining origins of rear-end presumption). However, the presumption is a rebuttable presumption. What this means is that the trailing driver is allowed the opportunity to present evidence of sufficient value to overcome the presumption, but failing this, the beneficiary of the presumption is entitled to judgment as a matter of law. Birge v. Charron, 107 So.3d 350 (Fla. 2012) and Bodiford v. Rollins, So. 3d , 40 FLW D1844 (Fla. 5th DCA 8-7-2015) (as there was no evidence showing that plaintiff Rollins breached any legal duty or failed to use reasonable care, the trial court’s denial of plaintiff Rollins’ motion for judgment notwithstanding the verdict was reversed.).

The “rear-end presumption has never been recognized as anything more than an evidentiary tool that facilitates a particular type of negligence case by filling an evidentiary void where the evidence is such that there is no relevant jury question on the issue of liability and causation,” Birge @ 361. It was “constructed by the law to give particular effect to a certain group of facts in the absence of further evidence.” Gulle v. Boggs, 174 So.2d 26, 28 (Fla.1965) and Clampitt v. D.J. Spencer Sales, 786 So.2d 570, 572-73 (Fla.2001) (same).

In Birge, the passenger of a trailing motorcycle that flipped over when its driver attempted to avoid a rear-end collision, sued the driver of the front vehicle for negligence. In spite of divergent fault evidence concerning the circumstances of the crash, the trial court entered summary judgment for the defendant based on the rear-end presumption. The trial judge ruled, as a matter of law, that the evidence did not rebut the presumption of negligence against the driver of the trailing motorcycle.

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motorway nightNot a day goes by without someone telling us that he or she has “full coverage.”

Insurance companies authorized to sell vehicle insurance in Florida are required by law to offer a full range of coverage options under the standard policy. However, only two types of coverage, PIP and Property Damage (Liability), are required for the vehicle owner to register and lawfully operate the vehicle in Florida. Many people consider this “full coverage.”

The problem with this “full coverage” is that it falls short of insuring against every type of loss that can result from a vehicle crash. Moreover, it leaves the at-fault party at risk of having his or her driving privileges suspended. § 324.051(2)(a) Florida Statutes

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car-insurance-policyFlorida law requires every owner or registrant of an operable personal use motor vehicle to maintain Personal Injury Protection (PIP) and Property Damage (PD) – Liability insurance. See Florida Statute 627.733 Required security. While other types of coverage are available under the standard Florida motor vehicle insurance policy, these are the only two that are mandatory. While a premium is charged for the other types of coverage, the value can be worthwhile. For example, the minimum mandatory coverage (PIP & PD – Liability) does not prevent the at-fault insured from losing driving privileges when an accident involves injuries. Bodily Injury (BI) insurance does.

Here is a summary of the various types of coverage available under the standard Florida motor vehicle insurance policy:

Personal Injury Protection (PIP).
This coverage is outlined in Florida Statute 627.736. For in-state accidents, 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 while not occupying a self-propelled vehicle. For out-of-state accidents occurring within the U.S. and Canada, PIP covers the named insured and resident relatives if occupying a listed vehicle. Remember this: Out-of-state, out-of-vehicle, out-of-luck.

PIP pays:

  • 80 percent of reasonable or allowable accident-related medical expenses
  • 60 percent of lost wages
  • $5,000 death benefits

The typical PIP policy limit is $10,000 per person with a deductible of up to $2,000.

Property Damage Liability (F.S. 324.022). Covers damage to a third party’s property, including motor vehicles, walls, telephone poles, buildings, etc. The coverage travels with the insured, meaning it applies (with exceptions) when the insured is operating a non-listed vehicle. It may also cover a permissive user of a listed vehicle. The minimum policy limit is $10,000.

Bodily Injury Liability (BI) (324.021). Not mandatory in Florida. However, for those convicted of DUI, it is mandatory for a period of three years after  license reinstatement. For convictions before October 1, 2007, the minimum coverage limits are $10,000 per person/$20,000 per accident. On or after October 1, 2007: $100,000/$300,000.

BI covers for injuries and loss of life caused by the insured while operating certain listed vehicles. It may also afford coverage to the insured while operating a non-listed vehicle, like a friend’s car. An added bonus of maintaining BI is that the insurance carrier will furnish a legal defense on its tab. The minimum BI coverage limits are $10,000/$20,000. The maximum can be whatever the insured desires and can afford. Umbrella insurance is a way of increasing limits while saving on cost.
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UberUber is an app-based transportation service company. The company arranges for service through private motor vehicle owners.

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.”

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dollarsAn employee injured or killed in the course of his or her employment by the negligence or wrongful act of a third-party tortfeasor may receive workers’ compensation benefits and pursue a remedy by action at law against such third-party tortfeasor. (Where the employee has been killed, the third-party action will be handled through the decedent’s estate by a court appointed Personal Representative.)

Pursuant to Florida Statute 440.39, if the employee or his or her dependents accept workers’ compensation benefits, the employer or its workers’ compensation insurance company shall be subrogated to the rights of the employee or his or her dependents against such third-party tortfeasor, to the extent of the amount of compensation benefits paid or to be paid. This is known as the workers’ compensation lien.

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crushed vehicleThe main object of a vehicle (e.g., car, truck, motorcycle, van) crash claim or lawsuit is to obtain full compensation for the person harmed by the negligence of another. The standard damage elements are pain & suffering, loss of income (past and future), past and future medical expenses, and vehicle damage repair or replacement.

A crash damaged vehicle, even if repaired, has a diminished resale value. The diminished value is a measure of damages that can, under the right circumstances, be claimed as compensation from the at-fault party. (Typically, this means the at-fault party’s insurance company. Whether such a claim can be made against one’s own insurance policy in a first-party claim is a matter of contract law. Since Florida law does not require insurers to provide this coverage to their own insureds, whether or not it is available depends on the terms of the insurance contract. The coverage is usually not provided.)

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truck2Regarding recovery based on fault, present-day Florida tort law is governed by the standard established by the Florida Supreme Court in Hoffman v. Jones, 280 So.2d 431 (Fla., 1973). Hoffman replaced Florida’s contributory negligence rule (West v. Caterpillar Tractor Co., Inc., 336 So.2d 80, 90 (Fla.1976): the “gist of the doctrine of contributory negligence is that the person injured should not recover when it appears that the injury would have been avoided if the injured person had exercised reasonable care”) with a system of tort recovery based on a “pure form” of comparative negligence:

“If plaintiff and defendant are both at fault, the former may recover, but the amount of his recovery may be only such proportion of the entire damages plaintiff sustained as the defendant’s negligence bears to the combined negligence of both the plaintiff and the defendant.” Hoffman, 280 So.2d at 438.

Following the opinion in Hoffman, the Florida Legislature in 1986 codified the Court’s adoption of a system of comparative negligence, and its concomitant abolishment of the rule of contributory negligence, by enacting section 768.81 Florida Statutes (2015 version).

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IMG_1539In a state (Florida) that does not require motorists to maintain Bodily Injury (BI) insurance, having Uninsured Motorist (UM)/Underinsured Motorist (UIM) coverage, within the prescripts of Florida Statute 627.727, is the best protection against uninsured/underinsured drivers. Per 627.727(1), UM/UIM is designed

“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.”

We were recently contacted by a woman who sustained severe injuries from striking a tree after swerving to avoid hitting a dog. She had UM/UIM insurance, but because the dog, of course, was not operating an uninsured or underinsured motor vehicle, the coverage was not triggered. By contrast, had the woman swerved to avoid colliding with a so-called phantom vehicle which had cut her off, the prerequisite for UM coverage would have been met.

These are straightforward examples. Some are not.

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Florida’s motor vehicle insurance laws can be confusing, even to lawyers and  judges. It is little wonder, then, that lay people often face unfortunate motorway nightpredicaments because of uninformed insurance decisions. One of the most common predicaments is the suspension of driving privileges and vehicle registrations following a motor vehicle crash.

Vehicle insurance is a significant expense for most people. Every different type of coverage comes at the cost of a premium payment. Only two types of coverage are mandatory in Florida to register a motor vehicle: PIP and property damage liability. Because of cost concerns and a lack of knowledge, many Florida vehicle owners limit themselves to the basic package.

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