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dollars.jpgThe Florida Legislature has made Personal Injury Protection (PIP) insurance a mandatory coverage for all owners of operational motor vehicles. It is coverage that is designed to pay up to $10,000 in medical expenses and/or lost wages incurred by the insured regardless of fault, hence, the reason why it is commonly called “no-fault” insurance. In some instances, the coverage will apply to others, such as some resident relatives and pedestrians.

Before the policy is written, an insurance application must be completed. Insurance companies rely on the information provided in the application to set premium rates. The greater the risk, the higher the premium. Risk is determined by a number of factors, including the age and driving record of the applicant, and the number of potential individuals covered under the policy.

Section 627.409 Florida Statutes outlines the circumstances which allow insurance carriers to deny coverage. The statute reads as follows:

627.409 Representations in applications; warranties.–
(1) Any statement or description made by or on behalf of an insured or annuitant in an application for an insurance policy or annuity contract, or in negotiations for a policy or contract, is a representation and is not a warranty. A misrepresentation, omission, concealment of fact, or incorrect statement may prevent recovery under the contract or policy only if any of the following apply:
(a) The misrepresentation, omission, concealment, or statement is fraudulent or is material either to the acceptance of the risk or to the hazard assumed by the insurer.

(b) If the true facts had been known to the insurer pursuant to a policy requirement or other requirement, the insurer in good faith would not have issued the policy or contract, would not have issued it at the same premium rate, would not have issued a policy or contract in as large an amount, or would not have provided coverage with respect to the hazard resulting in the loss.

(2) A breach or violation by the insured of any warranty, condition, or provision of any wet marine or transportation insurance policy, contract of insurance, endorsement, or application therefor does not void the policy or contract, or constitute a defense to a loss thereon, unless such breach or violation increased the hazard by any means within the control of the insured.
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car-insurance-policy.jpgThe term “Full Coverage” means different things to different people.

For a vehicle to be registered in Florida, Florida law requires the owner to maintain nothing more than Personal Injury Protection (“PIP”) and Property Damage Liability insurance. PIP covers 80% of medical expenses and/or 60% of wage losses up to a total of $10,000, while Property Damage Liability pays for the damage or loss of property caused by the at-fault driver or owner of the motor vehicle. (The minimum coverage limit for PD Liability is $10,000.)

Neither of these coverages compensates anyone for bodily injury losses, also known as non-economic or pain & suffering damages.

Only Bodily Injury Liability (“BI”) insurance and Uninsured/Underinsured Motorist (“UM/UIM”) insurance compensate for non-economic damages. Neither of these coverages is mandatory, which means that a policy containing one or both of the them costs more than the basic PIP/PD Liability policy. Because of the additional cost, many people forego the coverages.
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drunk.jpgAstute personal injury lawyers always look for ways to maximize their client’s financial recovery. Establishing aggravating factors against the at-fault party is one of the main ways of doing this. In motor vehicle accident cases, there is no better opportunity for scoring points against the liable party than connecting alcohol use to the accident.

The involvement of alcohol can lead to a claim for punitive damages. The procedure for claiming punitive damages and the standards for holding a defendant liable for punitive damages are set forth in Florida Statute 768.72.

A claim for punitive damages may not be plead in the initial complaint. Rather, the Plaintiff must seek leave of court to amend the complaint to claim punitive damages. The judge should allow the amendment if evidence in the record or proferred by the Plaintiff provides a reasonable basis for recovery of such damages. Simeon, Inc. v. Cox, 671 So.2d 158 (Fla.1996) and F.S. 768.72(1). Contrary to the proposition often put forward by Defendants, the statute does not require an evidentiary hearing to permit the amendment. Pursuant to section 768.72, a proffer of evidence can support a trial court’s determination. Strasser v. Yalamanchi, 677 So.2d 455 (Fla. 2d DCA 1981).

768.72 says this about what must be shown to establish liability:

(2) A defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence. As used in this section, the term:

(a) “Intentional misconduct” means that the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage.

(b) “Gross negligence” means that the defendant’s conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.

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crushed vehicle.jpgThe essential parts of Florida House Bill 119, addressing Personal Injury Protection (PIP) benefits, were crafted in the closing days of the 2012 legislative session, sometimes behind closed doors, mostly without any public or committee vetting, and, of course, with undue influence from the insurance industry and not enough input from consumers. As has been widely reported, just as Governor Scott, the leading proponent of revising PIP, was lobbying legislators, United Group Underwriters, an affiliate of United Automobile Insurance Company, a leading Florida PIP carrier, gave $100,000 to his Let’s Get to Work political committee. Not surprisingly, the end result of the bill is that consumers will receive less while PIP carriers profit more.

The beat goes on….

That said, consumers and lawyers must know the changes. Here’s a brief summary of some of the important changes:

MEDICAL (unless otherwise indicated, these provisions become effective January 1, 2013):

  • 14 Day Rule (Florida Statute 627.736(1)(a)1): Unless the insured receives medical care within 14 days after the motor vehicle accident from a hospital facility, emergency transport, an M.D., D.O., D.C., or D.D.S., there is no PIP coverage for any medical benefits.
  • Followup medical care and services must be “consistent” with the underlying medical diagnosis provided pursuant to the services furnished within the first 14 days (F.S. 627.736(1)(a)2). Put another way, medical coverage is limited to the initial injury diagnosis.
  • Medical Coverage Limited to $2500 unless “Emergency Medical Condition”: The definition of “Emergency Medical Condition” is located at F.S. 672.732(16). Only the types of medical providers listed in F.S. 627.736(1)(a)3 are allowed to determine if the injured person has sustained an “Emergency Medical Condition.” Chiropractors are not included in this list. Interestingly, if any medical provider listed in subparagraph 1 or subparagraph 2 determines that the injured person did not have an emergency medical condition, PIP benefits are limited to $2500. Chiropractors are listed in this group of medical providers.
  • Massage and acupuncture no longer covered by PIP

OBTAINING PIP LEDGER (627.736(4)(j). The new statute only requires insurers to provide their insureds with PIP payment logs once litigation is commenced. This is silly; PIP carriers should be required to produce logs at all reasonable times including presuit. Some litigation is commenced because the insured, through no fault of his own, does not know what benefits have been paid. A ledger avoids this situation. Also, logs are needed to help resolve personal injury claims. It lets both sides know how much the amount of outstanding medical expenses. Even though current law, Southern Group Indemnity, Inc. v. Humanitary Health Care, Inc., 975 So.2d 1247 (Fla. 3rd DCA 2008), does not require carriers to provide ledgers presuit, they typically do as a courtesy. Let’s hope the revised PIP statute does not put an end to this courtesy.
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maze.jpgFlorida adheres to the dangerous instrumentality doctrine. The doctrine stands for the proposition that since motor vehicles are dangerous instrumentalities, their owners should be held liable for the negligent operation of the vehicles by persons to whom they have been entrusted. The doctrine has been a part of Florida law since 1920. Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920).

While Florida is one of only a handful of states to apply the doctrine, its impact has been watered down by arbitrary damage caps created by the Florida Legislature. The caps, contained in Florida Statute 324.021(9)(b)3, read as follows:

The owner who is a natural person and loans a motor vehicle to any permissive user shall be liable for the operation of the vehicle or the acts of the operator in connection therewith only up to $100,000 per person and up to $300,000 per incident for bodily injury and up to $50,000 for property damage. If the permissive user of the motor vehicle is uninsured or has any insurance with limits less than $500,000 combined property damage and bodily injury liability, the owner shall be liable for up to an additional $500,000 in economic damages only arising out of the use of the motor vehicle. The additional specified liability of the owner for economic damages shall be reduced by amounts actually recovered from the permissive user and from any insurance or self-insurance covering the permissive user. Nothing in this subparagraph shall be construed to affect the liability of the owner for his or her own negligence.

The imposition of owner liability is difficult to overcome. Consider these case examples:

  • Susco Car Rental Sys. v. Leonard, 112 So.2d at 835, negligence of a person not allowed to drive bound the owner.
  • Bowman v. Atlanta Baggage & Cab Co., 173 F. Supp. 282 (N.D. Fla. 1969), liability imposed even where driver exceeded stated area limitations.
  • Tillman Chevrolet co. v. Moore, 175 So. 2d 794 (Fla. 1st DCA 1965), cert. discharged, 184 So. 2d 175 (Fla. 1986), owner liable even though accident caused by a hitchiker allowed to drive by a customer convicted of stealing the car.
  • Ivey v. National Fisheries, Inc. 215 So. 2d 74 (Fla. 3d DCA 1968), employer who permitted a truck driver to use vehicle for delivery only between home and work liable for driving by drinking buddy given truck after worker stopped at bar and became intoxicated.

Rarer is the situation where owner liability is not imposed. Consider:

  • The vehicle has been stolen. Read the Susco case;
  • The vehicle has been used without authority by the employee of a facility where the vehicle has been left for repairs. Castillo v. Bickley, 363 So.2d 792 (Fla. 1978);
  • The title is held for security purposes, as in a conditional sale; or,
  • Where the title is only intended to be held temporarily, as where a transfer of title is in the process but not completed.

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cemetery1.jpgWho can be compensated and the types of damages that are available when a person dies through the wrongful act or negligence in Florida of any person or company is prescribed by statute in the “Florida Wrongful Death Act,” sections 768.16 through 768.26. The chart below is a breakdown of section 768.21.

Wrongful Death claims are brought on behalf of statutory “survivors” by the Personal Representative of the decedent’s estate. The Personal Representative, typically a family member and often a survivor, is appointed by the court after due notice is given to all interested parties. The Personal Representative hires the attorney who will bring a claim to recover damages for the decedent’s estate and survivors. Florida wrongful death attorneys handle these cases on a contingent basis, meaning that attorney’s fees are paid only after a successful recovery has been made in the case. The standard within the legal industry is for the fee to be a percentage of the overall recovery, rather than being based on an hourly rate.

Who may recover under the Act and to what extent varies according to the circumstances of each case and can be confusing. There have been many legal challenges to the Act, yet it has survived all challenges essentially intact. At this point in time, it will take action from the Florida Legislature to change the Act.

The goal of this blog is to make the Act understandable. The chart shows the types of damages that can be recovered and by whom. Many of the variations and exceptions are counterintuitive and unfair. For example, a surviving spouse will preclude the recovery of any damages by the decedent’s parents. In addition, the Act gives special consideration to medical providers, in some instances putting them beyond the reach of the law for causing death by medical negligence/malpractice.

Spouse Dies – Surviving Spouse but no Surviving Children
Spouse’s Damages:

  • Loss of Decendent’s Companionship and Protection
  • Mental Pain and Suffering from date of injury
  • Loss of Support and Services from date of injury to date of death (w/ interest)
  • Future Loss of Support and Services from date of death (at present value)
  • Medical and Funeral Expenses due to decedent’s injury/death if paid by survivor

Spouse Dies with Surviving Children and Surviving Spouse
Spouse’s Damages:

  • Loss of Decendent’s Companionship and Protection
  • Mental Pain and Suffering from date of injury
  • Loss of Support and Services from date of injury to date of death (w/ interest)
  • Future Loss of Support and Services from date of death (at present value)
  • Medical and Funeral Expenses due to decedent’s injury/death if paid by survivor

Children’s Damages:

  • Loss of Support and Services from date of injury to date of death (w/ interest)
  • Future Loss of Support and Services from date of death (at present value)
  • Minor children only (under the age of 25 – Section 768.18(2) Florida Statutes), or all children if there is no surviving spouse, may also recover loss of parental companionship, instruction, and guidance and mental pain and suffering from date of the injury

Parent Dies with Surving Children but no Surviving Spouse
Surviving Children:

  • Loss of Support and Services from date of injury to date of death (w/interest)
  • Future Loss of Support and Services from date of death (at present value)
  • All children may recover loss of parental companionship, instruction, and guidance and mental pain and suffering from date of the injury

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pothole.jpgMust a landowner warn a visitor to the property of an open and obvious pothole? Probably not. Does a landowner have a duty to repair the pothole? Probably.

In Burton v. MDC PGA Plaza Corp., 78 So.3d 732 (Fla. 4th DCA 2012), the plaintiff was seriously injured when, while loading a vehicle, she stepped into a pothole, tripped, and fell to the ground. The pothole was approximately one foot wide and two inches deep. The plaintiff conceded that she knew about the pothole before she fell.

Because the plaintiff knew about the pothole before she fell, the court ruled that the plaintiff could not maintain an action against the landowner Defendant MDC or its tenant, CVS. Summary judgment was granted for the defendants.
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law books.jpgLittle known by most lay people is that every plaintiff involved in litigation, even those who appear to walk away with favorable judgments, may be subject to court sanctions in the form of paying the defendant’s attorneys fees.

The sanction can be imposed under Florida Rule of Civil Procedure 1.442, known as the Proposal for Settlement rule. Under the PFS rule, if the plaintiff refuses a pretrial offer for 25% more than the case is worth, the plaintiff may have to pay the defendant’s attorneys fees incurred from the date of the offer through the trial of the case. (For purposes of this topic, the worth of a case is the amount of the final judgment. A final judgment is not the same thing as a verdict.)

The courts appear to have found an exception to the PFS rule for survivors in cases brought under Florida’s Wrongful Death Act.

In Kadlecik v. Haim, 79 S03d 892 (Fla. 5th DCA 2012), the court gave the following explanation for the exception:

Under Florida’s Wrongful Death Act, an estate’s personal representative brings all claims on behalf of both the estate and the decedent’s survivors. §§ 768.16-.26, Fla. Stat. (2010). The personal representative has the exclusive authority to conduct litigation and settle all claims. Thompson v. Hodson, 825 So. 2d 941 (Fla. 1st DCA 2002); Pearson v. DeLamerens, 656 So. 2d 217 (Fla. 3d DCA 1995). The survivors are not parties to the wrongful death litigation, even when the claims are brought for their benefit. Accordingly, it is error to award attorneys’ fees against the survivors because the personal representative is the only person with authority to settle the claim and the individual survivors cannot be fairly said to have rejected an offer of settlement. See Beseau v. Bhalani, 904 So. 2d 641, 642 (Fla. 5th DCA 2005) (holding that entry of judgment against survivor was erroneous as, despite being individually named on complaint, she was not proper party to proceeding); Thompson, 825 So. 2d at 952 (holding that attorneys’ fees cannot be assessed against survivors in wrongful death action based on offer of judgment since personal representative alone has authority to settle and survivors cannot be said to have rejected offer of settlement).

Is the exception foolproof? At least one Florida lawyer, the renowned Dale Swope, of Swope, Rodante, P.A., in Tampa, has doubts. (His article on the subject is contained in the March/April 2012 #559 edition of the Journal, a magazine published for members of the Florida Justice Association.)
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Used cars.jpgPurchasers of used goods, such as appliances and cars, often buy from dealers subject to the condition that the items are being sold “As Is.” Does this provision in a sale agreement insulate the seller from liability for personal injuries caused by a defect? Probably not.

Sellers use “As Is” disclaimers with the intention and expectation of disclaiming all warranties, both express and implied. To be valid, the disclaimers must meet certain requirements such as being written and conspicuousness within the written document.

An “As Is” disclaimer is not an exculpatory clause. An exculpatory clause relieves a party of tort liability. Because exculpatory clauses relieve parties of exercising due care, they are looked upon with disfavor in most states, including Florida. To be enforceable, an exculpatory clause must be so clear and understandable that “an ordinary and knowledgeable person will know what he is contracting away.”

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accident scene.jpgTo promote the gathering of facts surrounding motor vehicle accidents, the Florida Legislature has devised a number of statutes each with the essential character of compelling certain individuals to disclose information to law enforcement personnel.

  • Florida Statute 316.066(1) requires a driver to make a report when involved in a crash where there is bodily injury, death, or damage to a vehicle
  • 361.062(1) requires a driver to give his or her information to a police officer upon request when a crash results in injury or death
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