Jeffrey P. Gale, P.A. // Permanent Injury Not Required if Tortfeasor Does Not Have Insurance Policy Complying With Florida PIP Law

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.

To benefit from s. 627.737(2), the burden is on the owner, registrant, operator, or occupant of a motor vehicle or any person or organization legally responsible for her or his acts or omissions, to show that the insurance coverage required by ss. 627.730-627.7405 has been provided. Failing this, the Plaintiff does not have to prove any of the 627.737(2) elements to have the right to be awarded non-economic damages. See s. 627.733(4), which provides: “An owner of a motor vehicle with respect to which security is required by this section who fails to have such security is effect at the time of an accident shall have no immunity from tort liability.” 

The practical effect for Plaintiffs of not being burdened by 627.737(2) is limited. If the person or other responsible entity is uninsured, it is unlikely any money can be collected from them. They’ve already demonstrated their irresponsibility by failing to maintain required insurance coverage, which suggests a shortage of funds to purchase coverage and a lack of concern about having assets to lose. Where the loophole sometimes comes into play is where the tortfeasor is from out of state and maintains motor vehicle coverage under a policy issued in another state. Under this circumstance, the policy must be reviewed to determine if it complies with the security requirements of s. 627.733. All policies issued in Florida are required to comply with Florida law. Obviously, this is not the case for policies issued in other states.

The question arises whether the s. 627.737(2) elements have to be established to recover non-economic damages under uninsured motorist coverage. In Dauksis v. State Farm Mutual Insurance Co., the Florida Supreme Court explained “it is clear that the statute does not require an insurance carrier to provide uninsured motorist coverage for pain, suffering, mental anguish, and inconvenience unless the threshold requirements of section 627.737(2) have been met.” However, the Court decided that language in the subject UM policy obviated the insured’s need to prove a permanent injury. Following Dauksis, most carriers removed language from their policies of the type that trapped the carrier in Dauksis. Ultimately, the Florida Legislature enacted s. 627.727(7) to further protect insurance carriers:

The legal liability of an uninsured motorist coverage insurer does not include damages in tort for pain, suffering, mental anguish, and inconvenience unless the injury or disease is described in one or more of paragraphs (a)-(d) of s. 627.737(2).

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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.