Articles Posted in Car, Truck & Motorcycle Accidents

dollars-254x300Workers injured in motor vehicle crashes while in the course and scope of employment may be eligible for compensation through uninsured/under-insured (UM/UIM) motor vehicle insurance. UM covers losses sustained by the insured, passengers, and family members through the fault of a party who fails to maintain Bodily Injury (BI) insurance. Hit-and-run and “phantom vehicle” scenarios also fall under UM coverage. UIM covers losses that exceed the limits of coverage available under the at-fault party’s BI insurance. Those same injured workers could also be eligible for workers’ compensation benefits for the same accident.

Section 440.39(3)(a), Florida Statutes (2019) states that in actions by the employee against a tortfeasor, the employee or his representative “shall sue for the employee individually and for the use and benefit of the employer, if a self insurer, or employer’s insurance carrier, in the event compensation benefits are claimed or paid….” Id. This means that the workers’ compensation insurance carrier has a lien against any judgment or settlement ultimately recovered by the employee. Id. 

UM/UIM benefits are not subject to the workers’ compensation lien. See Volk v. Gallopo, 585 So.2d 1163 (Fla. 4th DCA 1991).

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motorway-300x224Florida is one of only a handful of states that operates under a No-Fault system for paying medical expenses incurred in connection with motor vehicle accidents. Florida’s No-Fault Law, commonly referred to as “PIP” (personally injury protection, is contained in sections 627-730-627.7405 of the Florida Statutes. There is a dollar limit as to how much is covered under the No-Fault Law. Section 627.736(1) provides as follows:

REQUIRED BENEFITS.An insurance policy complying with the security requirements of s. 627.733 must provide personal injury protection to the named insured, relatives residing in the same household, persons operating the insured motor vehicle, passengers in the motor vehicle, and other persons struck by the motor vehicle and suffering bodily injury while not an occupant of a self-propelled vehicle, subject to subsection (2) and paragraph (4)(e), to a limit of $10,000 in medical and disability benefits and $5,000 in death benefits resulting from bodily injury, sickness, disease, or death arising out of the ownership, maintenance, or use of a motor vehicle….

Florida jurisprudence allows individuals involved in accidents to seek damages for pain, suffering, mental anguish, and inconvenience because of bodily injury. These are known as non-economic damages. Florida’s No-Fault Law makes obtaining these damages in motor vehicle crash cases more difficult than in other types of accident cases. This is because of the unique requirements outlined in s. 627.737(2):

In any action of tort brought against the owner, registrant, operator, or occupant of a motor vehicle with respect to which security has been provided as required by ss. 627.730-627.7405, or against any person or organization legally responsible for her or his acts or omissions, a plaintiff may recover damages in tort for pain, suffering, mental anguish, and inconvenience because of bodily injury, sickness, or disease arising out of the ownership, maintenance, operation, or use of such motor vehicle only in the event that the 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 or disfigurement.
(d) Death.
The primary battleground in the fight for non-economic damages is part (b), which involves more subjectivity than parts (a), (c), and (d). Typical examples include claims of back, neck, and knee pain. Defendants argue that there hasn’t been an injury or that an injury, as visualized in diagnostic testing such as x-rays and MRI imaging, is preexisting and unrelated to the accident.

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motorway-300x224We have represented many people who have benefited from having UM/UIM insurance. We have represented many more people who have lost out by not maintaining the coverage.

UM covers losses sustained by the insured, passengers, and family members through the fault of a party who fails to maintain Bodily Injury (BI) insurance. Hit-and-run and “phantom vehicle” scenarios fall under UM coverage. UIM covers losses that exceed the limits of coverage available under the at-fault party’s BI insurance.

Florida is one of only a handful of states that does not require owners of registered motor vehicle to maintain Bodily Injury (BI) insurance, which is the type of third party coverage that compensates individuals damaged by an insured’s negligent operation of a covered motor vehicle. Since it is not mandatory and costs the policyholder more to maintain, a large percentage of motorists do not purchase the coverage. Instead, these motorists limit their coverage to the minimum mandatory of Personal Injury Protection (PIP) and Property Damage — Liability. (Property Damage — Liability operates like BI, but for personal property. From this curious arrangement, one could conclude that the Florida Legislature, who creates statutory law, places more value on personal property than on bodily injuries.)

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IMG_5345-225x300We are representing a gentleman who was struck by a pickup truck just before sunrise while walking to a bus stop on his way to work. The driver turned quickly without warning from a main road onto a small side street while our client was halfway across after looking both ways before proceeding. Our client spent two weeks in the hospital in intensive care. The driver of the vehicle was charged with failing to yield the right of way.

We learned that the vehicle was purchased by an administratively dissolved corporation and loaned by the sole officer and shareholder of that defunct corporation to the driver for personal use. While the dissolved corporation did not maintain personal injury liability insurance, our investigation determined that the officer/sole shareholder (O/SS) owned unencumbered real estate worth in excess of $1,000,000, almost enough to cover our client’s medical expenses, lost income, and personal injuries. (We made this asset determination by searching the public records and by obtaining an asset affidavit from the O/SS. The driver of the vehicle is uninsured and does not have assets of any meaningful value.)

Through experience and legal research, we have concluded, based on two intertwining legal theories, that the O/SS is likely personally liable for our client’s significant damages.

Section 607.0204, Florida Statutes (2019), part of the Business Corporation Act, provides as follows:

Liability for preincorporation transactions.All persons purporting to act as or on behalf of a corporation, knowing that there was no incorporation under this chapter, are jointly and severally liable for all liabilities created while so acting.

For us to be able to impose personal liability on the O/SS under this statute, we must show that he knew or should have known that the corporation was dissolved when he acted. Presley v. Ponce Plaza Associates, 723 So. 2d 328 (Fla. 3rd DCA 1998) and Harry Rich Corp. v. Feinberg, 518 So.2d 377 (Fla. 3d DCA 1987). Given that the gentleman was the sole officer and shareholder of the corporation, which had been administratively dissolved years before the vehicle was purchased, we feel confident in being able to make that proof.

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14525881043se8c1-300x200Every driver of an automobile in Florida who is involved in a motor vehicle accident is required to report the event to law enforcement. See § 316.062, Fla. Stat. (2019).  From 1971 to 1982, the version of the statute designed to promote this public policy, § 316.066(4), Fla. Stat. (1971), provided that accident reports were confidential and prohibited its disclosure. In 1982, the legislature added a sentence providing an exception to “the confidential privilege afforded by this subsection” for breath, urine, and blood tests. Ch. 82-155, § 6, Laws of Fla. (emphasis added). Based on this language, courts interpreted the statute as creating a true privilege. See Brackin v. Boles, 452 So. 2d 540, 544 (Fla. 1984); Pastori v. State, 456 So. 2d 1212, 1213 (Fla. 2nd DCA 1984); Nationwide, Ins. v. Monroe, 276 So. 2d 547, 548 n.2 (Fla. 2nd DCA 1973). And it became known as the “accident report privilege.” See, e.g., Hammond v. Jim Hinton Oil Co., 530 So. 2d 995, 997 (Fla. 1st DCA 1988)Johnson v. Fla. Farm Bureau Cas. Ins., 542 So. 2d 367, 368 (Fla. 4th DCA 1988); Hill v. Allstate Ins., 404 So. 2d 156, 156 (Fla. 3d DCA 1981).

In 1989 the statute was changed by deleting (1) the term “privilege,” (2) the language making the information confidential, and (3) the language prohibiting its disclosure outside of the Department. See ch. 89-271, § 2, Laws of Fla. “By deleting this language, the legislature clearly intended to change the statute from a true privilege to a law of admissibility. Indeed, the legislative history provides that the statute was amended “to make it clear that statements made to an officer by a person involved in an accident shall not be admissible in court but shall otherwise be public record.” Fla. H.R. Comm. on Govtl. Ops., PCB GO 89-4 (1989) Staff Analysis 4 (Mar. 31, 1989).” Anderson v. Mitchell, 219 WL 1296458 (Fla. 2nd DCA 2019).

The 2019 version of the statute remains true to the purposes of the 1989 version. In pertinent part, it 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. 

Section 316.066(4), Florida Statutes (2019).

Interestingly, even after the substantial changes made in 1989, courts continued to refer to the statute as creating an “accident report privilege.” See, e.g., Perez v. State, 630 So. 2d 1231, 1232 (Fla. 2d DCA 1994)Wetherington v. State, 135 So. 3d 584, 585 (Fla. 1st DCA 2014)Alexander v. Penske Logistics, Inc., 867 So. 2d 418, 420 (Fla. 3d DCA 2003). Some courts have also used language describing the post-1989 version of section 316.066(4) as making the statements both inadmissible and privileged. See, e.g., Perez, 630 So. 2d at 1232; Nelson v. State Dep’t of Highway Safety & Motor Vehicles, 757 So. 2d 1264, 1265 (Fla. 3d DCA 2000).

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Rodin2-Thinker-233x300Not infrequently, both the driver and passenger(s) involved in a motor vehicle crash will consider hiring the same personal injury lawyer. Because of conflict of interest concerns, lawyers must be exceedingly cautious in taking on dual representation in these circumstances. The concerns arise in various fact situations, including the following:

1. The driver and passenger prospective clients are both injured and liability is
clearly with the third party driver. There are no claims of comparative negligence
or fault against the plaintiff driver.
2. The driver and passenger prospective clients are both injured and liability lies
mostly with the third party driver. However, the third party’s insurance company
is alleging comparative fault by the plaintiff driver.
3. Driver and passenger prospective clients are members of the same family and
both are injured in an auto accident. While the plaintiff driver may have been
partly at fault, the driver was uninsured and has no assets to satisfy an adverse
judgment.
4. The driver and passenger prospective clients are both injured and evidence
shows that the plaintiff driver was definitely at fault as well as the third party
driver of the other vehicle.
5. The driver and passengers, who are members of the same immediate family,
are all injured and the third party tortfeasor is claiming some fault on the part
of the driver. The driver is the wife/mother of the passengers. Her liability policy
has denied coverage for the other family members due to a “family exclusion”
clause in the policy; she has no significant assets. The driver has uninsured/
underinsured motorist coverage.
Regarding multiple representation of clients, the Florida Rules of Professional Conduct, ethics opinions and opinions of Florida courts provide guidance. Whereas the judgment call may be challenging under certain circumstances, one rule is clear: One attorney cannot simultaneously represent both driver and passenger in an auto accident where the passenger is pursuing a claim for negligence against the driver. Dual representation in these circumstances would violate Rule 4-1.7(a). See Florida Bar v. Mastrilli, 614 So.2d 1081 (Fla. 1993). See, also, Robertson v. Wittenmyer, 736 NE 804 (Court of Appeals of Indiana, 2000)(Attorney sanctioned for filing suit against his own client on behalf of another client who was injured in a motor vehicle crash while occupying a vehicle operated by the client who was sued).

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Rodin2-Thinker-233x300Florida case has long allowed the spouse of an injured married partner to bring a cause of action for loss of consortium, and though derivative in the sense of being occasioned by injury to the spouse, it is a direct injury to the spouse who has lost the consortium.  Busby v. Winn & Lovett Miami, Inc., 80 So.2d 675 (Fla.1955). Such damages range from the loss of household services (such as cooking and cleaning) to adversely affected sexual relations. It is precisely because of the spouse’s right to loss of consortium damages that both spouses are typically required to sign settlement releases.

While the consortium claim is a separate cause of action, as a derivative claim it must be brought in the same lawsuit as the underlying injury claim. As so eloquently stated by ace Florida trial lawyer Dale Swope, there are consequential reasons for not rushing headlong into bringing a claim for loss of consortium: “[T]hey can do more harm than good. They open the door to broader discovery, lead to internal disagreement, create the potential risk of execution on jointly held assets, and look to the jury like a lawyer-created claim that is just excessive. They also do not increase the coverage available (except in sovereign cases) and can also cause trouble with Medicaid if the allocation of a global recovery is made unilaterally.” See May/June 2019 Florida Justice Association Journal. Hence, unless the spouse has demonstrable damages, it may be best to let is rest. (All too often, spouses overestimate the value of consortium claims or their lawyers fail to give adequate consideration to the negatives.)

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golf-cart-275x300We represent a gentleman who was recently involved in a horrible crash while operating his Ford F-150 truck in a gated Lee County, Florida community. The operator of the other vehicle, which crossed into our client’s oncoming lane of traffic, died in the crash. Our client sustained significant personal injuries, including emotional distress. (For example, he is haunted from the experience of trying to help the dying man at the accident scene.)

We are seeking compensation for our client’s damages. While Florida No-Fault Insurance (a/k/a “PIP”) may cover some of his medical expenses and lost wages, he did not maintain the type of coverage — UM/UIM — under his own motor vehicle policy to compensate for non-economic damages such as pain and suffering and for economic losses (e.g., wage loss (past) and loss of earning capacity (future)) and medical expenses in excess of the PIP policy limit (typically $10,000).

Our investigation has determined that the at-fault driver maintained bodily injury (BI) insurance under his own motor vehicle policy. The listed insured vehicle under the policy is a Lexus. At the time of the tragic crash, the insured was driving a golf cart or a modified golf cart known as a low speed vehicle. The vehicle was not listed in the insurance policy.

Section 320.01(22), Florida Statutes defines a “golf cart” as “a motor vehicle that is designed and maintained for operation on a golf course for sporting or recreational purposes and that is not capable of exceeding speeds of 20 miles per hour.” (emphasis added). By contrast, a “low-speed vehicle” is defined as “any four-wheeled electric vehicle whose top speed is greater than 20 miles per hour but not greater than 25 miles per hour, including neighborhood electric vehicles. Low-speed vehicles must comply with the safety standards in 49 C.F.R. s. 571.500 and s. 316.2122.” § 320.01(42), Fla. Stat. For insurance coverage purposes, the distinction might prove consequential in our case.

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motorway-300x224Personal Injury Protection (PIP), or “No-Fault,” is a type of Florida motor vehicle insurance available to a “named insured, relatives residing in the same household, persons operating the insured motor vehicle, passengers in the motor vehicle, and other persons struck by the motor vehicle and suffering bodily injury while not an occupant of a self-propelled vehicle.” See, section 627.736(1), Florida Statutes. Subject to policy limits (usually $10,000) and deductibles, PIP covers 80% of medical expenses and 60% of lost wages.

Generally, PIP carriers cannot recoup these payments from entities such as at-fault drivers and health insurance. Section 627.7405(1) is the exception to the rule. It reads as follows:

Notwithstanding ss. 627.730627.7405, an insurer providing personal injury protection benefits on a private passenger motor vehicle shall have, to the extent of any personal injury protection benefits paid to any person as a benefit arising out of such private passenger motor vehicle insurance, a right of reimbursement against the owner or the insurer of the owner of a commercial motor vehicle, if the benefits paid result from such person having been an occupant of the commercial motor vehicle or having been struck by the commercial motor vehicle while not an occupant of any self-propelled vehicle.

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CAVEAT: This blog has been superseded by this blog: Jeffrey P. Gale, P.A. // Constitutionality of Florida Hospital Lien Depends on Mechanism of Creation

Hospital liens have been the bane of every Florida personal injury lawyer’s existence. Perhaps no longer.

An enforceable lien is the right to receive a monetary payment from a person or entity, known as a third party, to satisfy a particular debt. In the matter of personal injury cases, the  source is the party responsible for causing the damages, the at-fault party, and in most instances the money comes from that party’s liability insurance policy.

Hospital liens, both for public and private institutions, are created by special laws or ordinances. With rare exception, they provide that the facility gets paid in full before anyone else can make a claim to the money, including the injured party and his/her attorneys.

Hospital bills are typically large, oftentimes resulting in a significant portion of the third party proceeds being siphoned off to satisfy the lien. In some instances, the gap between what is owed and what is available is so wide there is little point in bothering to settle the case. In that situation, the defendant gets away with paying nothing.

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