Articles Posted in Car, Truck & Motorcycle Accidents

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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Our firm was recently retained by the grieving mother of a young adult killed instacking a motorcycle accident. Because her son was not married or the father of a child, she and the boy’s father can bring a civil claim for mental pain and suffering and funeral expenses against any party whose negligent conduct caused the accident. See §768.21(4) & (5) Florida Statutes.

It is too early in the investigation for us to know what happened. Law enforcement has not filed a Florida Crash Report or homicide report and the investigating officers are not talking. We do not know the cause of the accident or whether others were involved.

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P1010046.JPGUnder common law, principals are generally not liable for the negligent acts of independent contractors. Interstate shipping companies took advantage of this standard to avoid liability for accidents caused by the owners of rigs who contracted to transport their goods. The practice allowed carriers to keep from having to purchase liability insurance. Given the volume of interstate traffic and the risk of catastrophic injury resulting from big rig crashes, the premium savings were tremendous.
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truck2.jpgFlorida motor vehicle owners beware! You can be held to account for accidents caused by other drivers even when you are nowhere near the crash scene.

Because motor vehicles, like guns, in the wrong hands and used improperly are likely to cause great damage, Florida motor vehicle owners are liable without regard to their own fault for damages caused by the negligent operation of their vehicles. This principle is known as vicarious liability.
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car-insurance-policy.jpgRisk and exposure drive insurance premiums. The greater the risk and exposure, the higher the premium. Period.

In the vernacular of this blog, risk and exposure have different meanings. Risk represents the chance of something happening, while exposure represents the consequences after that something happens. Premiums are set based on both: A high risk driver pays more than a low risk driver, and the higher the coverage limits, the higher the premium.
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cube.jpgClaiming that the plaintiff’s injuries are preexisting is a favorite defense tactic. Less responsibility for them. Some injuries, like herniated intervertebral discs and torn or frayed shoulder tendons, are extremely susceptible to this tactic. The defense argument is that the conditions are the result of natural aging and/or prior accidents.

Whenever possible, we like to counter this tactic by presenting prior medical records that are silent with regard to complaints similar to those for which we are seeking compensation. While this strategy may not eliminate entirely the preexisting condition argument, at the very least it shows that any such preexisting condition was aggravated in the accident. Florida law authorizes compensation for aggravation. See C. F. Hamblen, Inc. v. Owens, 172 So. 694 (Fla. 1937) and Florida Standard Jury Instruction 501.5a.

One of our recent cases demonstrates the point. Between September, 2013 and March, 2014, our client was involved in three separate motor vehicle accidents. While the third was the most serious, she sought medical treatment from the same board certified orthopedist for neck and back pain in all three. The doctor ordered cervical and lumbar MRIs to assist in diagnosing her injuries.
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truck2.jpgVicarious liability has been recognized in Florida since 1920. Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920). As applied to motor vehicles, the legal concept allows the owner of a vehicle to be held liable without fault for damages caused by the negligent operation of the vehicle by a consensual driver. This is known as the Dangerous Instrumentality Doctrine.

The financial exposure of owners for damages under the Dangerous Instrumentality Doctrine, as contained in section 324.021(9)(b)(3), Florida Statutes, is lower than it is for consensual drivers. For the statutory section to apply, the vehicle must have been loaned to the permissive user, as demonstrated by the following language: “3. The owner who is a natural person and loans a motor vehicle to any permissive user….”

Disputes have arisen over the meaning of the word “loans” in this section. Recently, in Youngblood v. Villanueva (opinion filed May 21, 2014), Florida’s Second District Court of Appeal held that the vehicle involved in a crash, resulting in a wrongful death, had not been loaned. The facts of the case were set forth in the court’s opinion:

The testimony at trial established that Youngblood consigned his uninsured vehicle to Teddy Aponte of Extreme Auto Sales with instructions to sell the vehicle. Youngblood testified that he never wanted to see the vehicle again after he handed the keys to Aponte, and he gave him no time limit in which to sell the vehicle. Because Aponte was driving the vehicle for his personal use when he struck and killed Eduardo Villanueva, Youngblood contended that this constituted a theft or conversion which exempted him from liability.

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motorbike-1055084-m.jpgMotor 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.
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