Direct Actions Against Insurers in Florida - GEICO General Ins. Co. v. Lepine

September 23, 2015,

Most automobile accident claims are paid by insurers, but as a general rule, the insurer is not named as a party to the action. There are laws that are intended to keep the jury from learning that insurance would pay for the damages in a case before it so that the jury will not be influenced by that fact. The Second District recently considered whether a woman could bring a direct action against a liability insurer that she alleged had gone back on an agreement to pay the policy limits in GEICO General Insurance Company v. Lepine.

Thumbnail image for phone-1543593-638x368.jpgThis case arose from a fatal automobile accident. The deceased man's wife pursued a claim against the other driver's insurance. She alleged that a representative of the insurance company agreed to pay her the $100,000 policy limits in both a voicemail message and a conversation with her attorney. She further alleged that the insurance company later refused to pay. She filed suit against both the driver and his insurer. In her complaint, she stated causes of action of negligence and wrongful death against the driver. She also alleged a breach of contract claim against the insurer for its failure to pay the policy limits, as well as a breach of contract claim against the driver for the insurer's failure to pay.

The insurer moved to dismiss the claim against it. It argued that the nonjoinder statute barred the direct action against it. The nonjoinder statute, section 627.4136, Florida Statutes, states that a person who is not insured under the liability policy cannot bring a direct action against the liability insurer for a cause of action that is covered by the policy without first obtaining a settlement or verdict against the insured. The insurer may be joined when the judgment is entered or a settlement is reached during the pendency of litigation. The nonjoinder statute is designed to prevent the availability of insurance from influencing the jury's determination of damages.

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Florida Offers of Judgment - Audiffred v. Arnold

August 26, 2015,

Florida law allows the parties in civil litigation to make an "offer of judgment," which is a proposal to settle the case presented to the other party. If the plaintiff makes such an offer, the defendant has 30 days to accept. If the defendant rejects or fails to accept the offer within that time frame, the plaintiff may recover reasonable costs and attorney's fees if the judgment is at least 25% greater than the offer.

car-crash-3-1512740-640x480.jpgSection 768.79, Florida Statutes, sets forth the requirements of the offer. Such offers must be in writing and indicate they are being made under the statute. They must name both the party making the offer and the party to whom the offer is made. The offer must state the total amount of the offer and provide the amount offered to settle punitive damages claims with particularity.

Section 1.442 of the Florida Rules of Civil Procedure provides further clarification of the requirements for an offer. These requirements include naming the "party or parties making the proposal...," stating any conditions with particularity, and stating "the amount and terms attributable to each party" when the offer is a joint proposal. The Florida Supreme Court recently decided what happens when an offer names only one of the plaintiffs as the party making the offer and does not attribute the amounts to the plaintiffs, but does clearly state that both plaintiffs will dismiss their claims if the offer is accepted.

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Limitations on Owner's Liability in Florida Car Accident - Santos v. Brink

July 7, 2015,

When a person is seriously injured in an automobile accident, the driver's insurance policy is often insufficient to compensate the victim for his or her injuries. It is therefore important that an accident victim look to all possible sources of recovery. In Florida, a vehicle owner who lends his or her vehicle to someone else is subject to liability as the owner of the vehicle. The owner's liability is limited, but owner liability is greater when the driver is uninsured or has less than $500,000 policy limits.

The Fifth District recently considered whether the final judgment against a vehicle owner Thumbnail image for 854291_40221579.jpg should reflect those liability limitations. In Santos v. Brink, the Fifth District found that the judgment should reflect the owner's liability limitations to prevent improper consequences to the owner and further litigation. The plaintiff, who was riding a motorcycle, suffered serious brain injuries in a collision. He filed suit against both the owner and the operator of the vehicle. The jury returned a verdict for more than $25 million in damages. After reducing for the plaintiff's comparative fault, collateral source setoffs, and taxable costs, the court entered a final judgment of more than $12 million against the defendants, noting that recovery against the owner was subject to the limitations in section 324.021(9)(b)3, Florida Statutes. The defendants appealed.

The court affirmed the evidentiary rulings the defendants challenged without further discussion, but it did address the owner's contention that the judgment against him should not have exceeded $600,000.

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Wife May Reject Florida UM Coverage as Agent of Husband - Progressive American Insurance Co. v. Grossi

June 24, 2015,

Under Florida law, an automobile insurance company that provides liability coverage must also provide uninsured motorist coverage, unless the insured rejects the uninsured motorist coverage in writing. Section 627.727, Florida Statutes. Uninsured motorist coverage is insurance that covers damages caused by a driver who does not have insurance. For purposes of uninsured motorist coverage, Section 627.727 defines "uninsured vehicle" to include a vehicle with policy limits that are less than the total damages, after the liability insurer has provided the bodily injury policy limits. Thus, uninsured motorist coverage applies in situations when the at-fault vehicle was either uninsured or underinsured.

The Fifth District recently addressed the issue of whether uninsured motorist coverage 1380082_13568771.jpg can be rejected by the spouse of the named insured in Progressive American Insurance Company v. Grossi. In this recent case, the husband was the named insured on an insurance policy. His wife was an additional insured under the policy. The policy had been in place for approximately three years. During that period, the wife had made numerous changes to the policy that resulted in reduced premiums. The insurer sent a policy declaration showing the changes to the husband after each change. Among the changes made by the wife was a rejection of uninsured motorist coverage.

Because of the rejection of coverage, the insurer denied uninsured motorist coverage after an automobile accident. The Fifth District's per curiam opinion does not provide a lot of factual or procedural history, but it does note that the trial court had granted a final summary judgment in favor of the insureds. The insurer appealed the order for summary judgment.

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Florida Court Takes on Insurer's Stalling Tactics in Uninsured Motorist Case - Safeco Insurance Company v. Rader

March 26, 2014,

Despite what they may tell you, auto insurance companies don't always have your best interests in mind. In fact, many will go to great lengths to try to avoid or limit claims that are perfectly reasonable and clearly covered under the applicable policy. That includes clogging up the legal process with a wide variety of stalling tactics, technical disputes and appeals. In Safeco Insurance Company v. Rader, Florida's First District Court of Appeals takes a look at one insurer's attempt to limit liability by trying to force an insured driver to file claims for uninsured motorist (UM) benefits and bad faith separately.

goats-on-a-road-in-greece-458886-m.jpgMr. Rader was injured in a car accident with a third party and later sought coverage from his insurer, Safeco, for UM benefits. Rader said his damages exceeded the $25,000 available under the other driver's insurance company and therefore sought the coverage available for UM benefits under his policy. He then sued the company, alleging that it failed to offer him the full amount of the coverage available. Safeco later tendered Rader the full $100,000 of UM coverage made available under his policy. The company subsequently responded to Rader's complaint by arguing that the payment represented a "confession of judgment as a matter of law" and that the trial court should simply close the case by entering judgment for Rader for the $100,000 he already received.

Rader, on the other hand, sought to amend his complaint to include a separate claim for bad faith against Safeco. The trial court denied Safeco's claim for judgment on the pleadings in the case, in which the company asserted that the bad faith claim was premature until there was a final ruling on Rader's UM claim. Instead, the trial judge granted Rader's motion to amend his complaint and said the parties could resolve the UM claim by either entering a stipulation to that effect or by Safeco accepting the judgment against it.

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Court OKs Florida Car Accident Claim against Auto Lender - Walters v. Flag Credit Union

March 19, 2014,

In Florida car accident cases, much of the finger pointing is inevitably directed at the drivers involved. But there is a wide range of third parties who may also be liable in the event of a crash, including passengers, auto manufacturers and insurance companies. Liability may even extend to a car finance company, as the U.S. District Court for the Northern District of Florida recently noted in Walters v. Flag Credit Union.

car-toy-1193245-m.jpgThe case stemmed from a Florida car accident in which Mr. Walters' vehicle was totaled. Walters had purchased the vehicle with a loan from Flag Credit Union. He also entered a guaranteed asset protection (GAP) contract, providing that the credit union would forgive any of the outstanding loan - in excess of any insurance recovery - in the event that the car was stolen or totaled. In turn, Flag purchased an insurance contract from CUMIS Insurance Society to protect itself from any amounts that might eventually be due to Walters. The CUMIS contract included a provision indicating that it didn't cover salvage vehicles.

Although the amount Walters owed Flag exceeded the amount of his insurance recovery, the company declined to cancel the outstanding balance. That's because CUMIS told the company that the re-insurance contract didn't cover Flag's vehicle because it was a salvage car. In other words, Flag tried to apply the salvage provision from the CUMIS contract to the separate GAP agreement with Walters, even though the GAP agreement itself didn't include any language related to salvage vehicles.

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Suing Florida Auto Insurance Companies for Breach of Contract - Arnold v. Wausau Underwriters Insurance Company

March 12, 2014,

It's an unfortunate reality that auto insurers don't always have their clients' best interests in mind. There are a number of ways in which these companies look to limit coverage payouts after an accident, including the so-called "rejection" of coverage at issue in Arnold v. Wausau Underwriters Insurance Company.

to-sign-a-contract-3-1221952-m.jpgMr. Arnold filed a claim with Wausau seeking uninsured motorist coverage following an October 2011 car accident that occurred while Arnold was working as a "Road Ranger" for Roy Jorgensen Associates. RJA held an auto insurance policy with Wausau, which originally included $1 million in Florida uninsured/underinsured motorist coverage and under which Arnold was covered as RJA's employee.

Wausau denied the claim, however, arguing that the parties had agreed to modify certain policy provisions just two months after it was executed in June 2011. Among those changes, Wausau claimed that RJA signed a form rejecting any and all Florida uninsured/underinsured motorist coverage. Yet, as the Court noted, the rejection paperwork wasn't signe or dated and wasn't actually endorsed until February 2012, roughly six months after Arnold's accident. And while it was Wausau's common practice to refund premiums related to coverage rejections at the end of a policy year, it didn't do so in this case until August 2013, half a year after Arnold sued the company for breach of contract.

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Florida Bad Faith Insurance Claims Require Detail, Facts - Rodriguez v. Integon

March 5, 2014,

Florida law generally requires auto insurance companies to act in "good faith" when handling claims against the people they insure. Failure to do so can result in a lawsuit, either by the insured individual or family or by those with claims against them. In Rodriguez v. Integon, the U.S. District Court for the Middle District of Florida explains the basics of a bad faith claims and reminds us that a complaint must provide sufficient allegations for a court to determine whether those claims are viable.

egret-1417450-m.jpgAlex Rodriguez was injured in an October 2010 car accident in which the car he was driving collided with a car owned by Mr. and Ms. Monteclaros. Integon, the couple's auto insurer, later issued a letter to Rodriguez (whom the company incorrectly referred to as "Anthony"), offering to settle his claims against the Monteclaros for $100,000. In exchange for the money, the company required Rodriguez to sign a release form, releasing all claims related to the accident against the Monteclaros and Integon. Rodriguez declined the offer and instead sued the Monteclaros for negligence. He was awarded a judgment against the family in excess of the $100,000 offered by Integon. Rodriquez later sued the company for bad faith.

Dismissing the action, the District Court said Rodriguez failed to adequately state a claim for bad faith upon which the court could grant relief.

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Jurisdiction Over Third Parties in Florida Car Accident Cases - Marina Dodge v. Quinn

February 27, 2014,

When a car accident happens, most of the finger pointing that follows goes on between the drivers of the vehicles involved (and their insurance companies). There is a wide variety of third parties, however, who may also be responsible for a crash. In Marina Dodge v. Quinn, Florida's Fourth District Court of Appeals explains that injured persons who go after one or more of those third parties better be sure they're doing so in the right state.

usamap-jpg-1417432-m.jpgMs. Quinn purchased her car in New York from two local companies, Marina Dodge and Webster Auto Brokers. She was living in Florida when she was later involved in a 2007 vehicle collision in the Sunshine State. Quinn sued the companies in Florida, alleging that the car was defective and that this defect led to the accident. A trial court denied the companies' motion to dismiss the complaint, in which they argued that the court didn't have personal jurisdiction over them.

Reversing the decision on appeal, however, the Fourth District held that neither company had sufficient contacts with the State of Florida to justify the trial court exercising jurisdiction over them. As the Court explained, "personal jurisdiction can exist in two forms: 'specific,' in which the alleged activities or actions of the defendant are directly connected to the forum state, and 'general,' in which the defendant's connection with the forum state is so substantial that no specific or enumerated relationship between the alleged wrongful actions and the state is necessary."

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Negligence and the "Sudden Loss of Consciousness" Defense in Florida Car Accident Cases - Marcum v. Hayward

February 20, 2014,

In Marcum v. Hayward, Florida's Second District Court of Appeals considers the "sudden loss of consciousness" defense, a legal doctrine that absolves a negligent person from liability under certain limited circumstances, including in some car accident cases.

love-under-cannon-1395190-m.jpgMs. Marcum was driving a company vehicle owned by Artistic Pools when the car was involved in an accident. Marcum, who was an assistant manager for the company, later said that she felt like she blacked out behind the wheel momentarily prior to the crash, woke up briefly and then blacked out again. She said she woke up a second time after the crash as paramedics were removing her from the vehicle.

Mr. Heninger, an Artistic Pools employee who was riding in the vehicle at the time of the accident, also said that Marcum told him that she felt like she had just blacked out prior to the accident. Marcum said she didn't feel well and asked where they were going and then suddenly became unconscious, according to Heninger. He claimed that he reached down quickly to try to push the car's brake pad with his hands when the accident occurred but was unable to do so because he was wearing a seatbelt.

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Fraud on Court Claims in Florida Car Accident Cases - Bosque v. Rivera

February 13, 2014,

In order to sue for negligence related to a car accident in Florida, you need to have sufficient evidence to support your claim. After filing suit, the plaintiff is also expected to truthfully respond to questions from the opposing side during the discovery process. One man's failure to do so recently almost cost him his case, as the Fifth Circuit Court of Appeals explains in Bosque v. Rivera.

boat-652644-m.jpgMr. Bosque was 20 years old when he was involved in a two-car accident with Mr. Rivera in Orange County in January 2010. He claimed that he suffered back and neck injuries as a result of the collision and ultimately underwent surgery for those injuries nearly a year later. Bosque later sued Rivera for negligence, claiming that Rivera caused the accident, which - in turn - caused Bosque's neck and back injuries.

Bosque responded "none" when asked during the discovery process prior to trial to list any car accidents, slip and fall accidents or worker's compensation claims for which he reported an injury in the last year. Nevertheless, a medical treatment record from his hospital on the day of the accident indicated that Bosque had previously been in a car crash, but that he didn't report any injuries related to that prior collision. Bosque answered "no" when asked during a later deposition whether he had been in an accidents prior to the crash with Rivera. He also denied having sustained any previous neck and back injuries.

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Court Says Some Facebook Posts Not Discoverable in Mom's Lawsuit Over Florida Truck Accident That Killed Son - Root v. Balfour Construction

February 6, 2014,

Generally, information from social media accounts like Facebook, Twitter and Snapchat is "discoverable. That means that the information may have to be turned over to an opposing party in a lawsuit if it's sufficiently related to the case. In Root v. Balfour Construction, Florida's Second District Court of Appeals explains that social media information is subject to the same rules, restrictions and legal protections that apply to more traditional sources of evidence.

modern-laptop-computer-isolated-1432157-m.jpgThe case stemmed from a tragic accident in which Ms. Root's son was killed when he was struck by an oncoming vehicle outside of a construction project in Cape Coral. Root sued the city, the main contractor on the project and a number of subcontractors for negligence. She claimed that the defendants failed to properly maintain the premises in a condition that was safe for pedestrians. She also asserted a claim for loss of parental consortium, seeking damages for the loss of her child's love, compassion, companionship, society and comfort. In response, the defendants argued that Root was negligent in allowing the boy to be under the care of his 17-year-old aunt at the time of the accident.

Prior to trial, a magistrate judge recommended that Root be ordered to comply with a discovery request from the defendants seeking copies of postings to her personal Facebook account related to her relationship with her son and other family members before and after the accident, as well as any mental health, stress and substance abuse problems she had before and after the accident and any psychological counseling she underwent after the accident.

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Federal Court Weighs in on "Bad Faith" Insurance Claims in Florida Car Accident Cases - Cabrera v. MGA

January 27, 2014,

"Bad faith" is a legal theory under which a person can sue an insurer for wrongly refusing to pay an insurance claim. In Cabrera v. MGA, the U.S. District Court for the Middle District of Florida explains that, in order to sue an insurer for bad faith, you must first establish that the company should have paid out the claim.

palm-tree-760640-m.jpgMr. and Ms. Cabrera were involved in a car accident with Ms. Jimmie in September 2003 and alleged that they suffered personal injury and property damages as a result of the collision. The filed a claim with MGA, Jimmie's insurer, two months later. MGA denied the claim, however, explaining that Jimmie's auto insurance policy was void because she provided false information to the company in an application before the policy was issued. The Cabreras later sued Jimmie in state court and were ultimately awarded more than $504,600 in damages.

Jimmie then assigned her rights under the insurance policy with MGA to the Cabreras. In turn, they sued the company in federal court, asserting that MGA had engaged in bad faith by denying their previous claim.

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Single Car Accidents and Third-Party Liability - O'Malley v. Ranger Construction Industries

January 20, 2014,

In O'Malley v. Ranger Construction Industries, Florida's Fourth District Court of Appeals considers a single car accident case in which the injured motorist didn't blame other drivers for the crash, but instead pointed the finger at an allegedly negligent road construction company.

roads-and-fields-1436791-m.jpgMr. O'Malley was injured in a single-car accident in Florida while driving on I-95. The accident occurred at dusk, and the Court said it was raining and had been raining most of the day. He later sued Ranger Construction, the company responsible for maintaining the stretch of road where the accident occurred. He alleged that the company was negligent in failing to remove standing water from the highway and to provide adequate drainage.
He also said the company failed to warn him of the hazardous standing water on the road.

The only witness to the accident, a driver who was in the far right lane of the highway at the time, said O'Malley was in the far left lane at the time of the crash and appeared to be traveling too fast, given the conditions. A state trooper who later arrived on the scene testified that he saw standing water in the road near where the accident occurred. The trooper prepared an accident report indicating that O'Malley was driving too fast and the accident happened when he came in contact with the slick surface.

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Court Reverses Florida Car Accident Verdict on Settlement Evidence Beef - Bern v. Camejo

January 13, 2014,

Florida car accident cases, like a wide variety of other legal matters, are often settled among the parties before or during trial. In Bern v. Camejo, the state's Third District Court of Appeals explains that one party's settlement of claims against it should not be considered by a jury in assessing similar claims against another party.

day-at-the-beach-1426365-m.jpgMs. Bern was injured in a three-car accident in Miami when the car she was driving collided with cars driven by Ms. Acevedo and Ms. Perez. She later sued Acevedo and Mr. Camejo, the owner of the car Acevedo was driving, as well as Perez and Mr. Martinez, the owner of the car Perez was driving. Bern settled her claims against Perez and Martinez prior to trial and dismissed the claims against them.

Also prior to trial, it became clear that Acevedo and Bern intended to argue that it was Perez who caused the accident by driving negligently. The trial judge partly denied Bern's motion in limine seeking to exclude the defendants from telling the jury that Perez had originally been party to the suit. The judge agreed with the defendants that the jury had the right to know that Perez was still a party to the suit when she gave a deposition in the matter because it was relevant in weighing the credibility of the testimony she gave. The trial court granted a portion of the motion in limine, however, prohibiting the parties from mentioning or introducing evidence that Perez had settled with Bern.

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