South Florida Car Accident Law Blog
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Unfortunately, drivers are not always as careful as they should be around pedestrians.  All collisions between vehicles and pedestrians, however, are not the driver’s fault.  Pedestrians also have a duty of care.  The pedestrian and driver may share responsibility for an accident.  In some cases, the pedestrian may be found to be the sole proximate cause of the accident, especially if the driver made reasonable efforts to avoid the accident.

P9210040The Second District recently upheld an order granting summary judgment in a case involving a truck that hit and killed a man trying to cross the interstate in Panzera v. O’Neal. At approximately 3 a.m., a man climbed a fence and attempted to cross I-75 on foot in an area with no street lights.  He was struck by a tractor-trailer and died as a result of his injuries.  The man’s estate filed suit against the driver and his employer.

The driver testified that he did not see the pedestrian until he ran across the emergency lane into the truck’s lane.  He further testified that he braked hard and tried to swerve but could not avoid hitting the pedestrian.

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Under certain circumstances, a trial court has the power to increase the damages awarded by a jury under the principle of additur. Federal courts do not allow an additur, but Florida state law does. Pursuant to § 768.043, Florida Statutes, the court shall, upon proper motion, grant an additur if it determines the award was clearly inadequate. The court must consider the following factors: whether the award indicates “prejudice, passion, or corruption” of the jury; “whether it clearly appears” the jury ignored evidence or misconceived the merits of the case regarding damages; whether the award is reasonably related to the proven damages and injury; and whether the award is supported by evidence and “could be adduced in a logical manner by reasonable persons.” If the affected party does not agree to the additur, the court must order a new trial on damages.

Florida case law has added a requirement that the trial court provide findings to support the additur. Generally, if a trial court fails to do so, the appellate court will send the case back to allow the trial court to state its findings, but the appeals court may reinstate the jury verdict if it finds an abuse of discretion.

Wrecked Car2.jpgThe Fourth District recently reviewed the appropriateness of an additur in the case of Ferrer v. Serna. The case arose from a low-speed car accident. The plaintiff did not seek treatment on the day of the accident but did see her doctor within a few days. Dr. Epstein found that the plaintiff suffered from a neck injury, sprains, and an aggravated pre-existing back condition as the result of the accident. He also found that she had a degenerative spinal condition that became symptomatic as a result of the accident. Although Dr. Epstein recommended that she not seek back adjustments from a chiropractor, the plaintiff did receive such adjustments from Dr. Rodriguez multiple times per week for several months.
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There are often facts that accident victims hope do not come out in litigation. In some cases, depending on what those facts are, a skilled plaintiff’s attorney may be able to get the evidence excluded. In other cases, the court will allow the evidence, and the attorney must work to minimize its effect.

golf-cart-1448617-639x696.jpgThe Third District recently examined whether a trial court properly excluded evidence in the case of Maniglia v. Carpenter. The parties to the case had been involved in an automobile accident in September 2009. The parties disputed the extent of the accident, with the defendant and his passenger claiming it was just a bump and the plaintiff alleging it was a severe sideswipe.

The plaintiff saw a chiropractor the day after the accident for neck and back pain. According to the doctor’s testimony, the x-rays showed “normal wear and tear,” but no evidence of acute injury.
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Florida law requires an automobile insurance policy to include $10,000 in personal injury protection (PIP) benefits. PIP covers medical treatment resulting from the accident, but there are limitations and procedural requirements. To be obligated to pay a claim, the insurer must receive proper notice of the loss. The recent case of State Farm Mutual Automobile Insurance Company v. Gonzalez addressed the issue of notice. The plaintiff in Gonzalez was treated at a hospital emergency room for injuries she received in an automobile accident in May 2001. The hospital bill was paid by her health insurance.

letter-box-1204824-640x480.jpgIn January 2002, the plaintiff’s attorney sent a letter of representation to her automobile insurer. The letter stated the plaintiff was injured in the accident and requested insurance information. The attorney attached the police report, which indicated that the plaintiff had been transported to the hospital. The attorney’s letter did not include any documentation of the hospital’s charges or a demand for payment for those services.

According to the opinion, the automobile insurer repeatedly contacted the plaintiff’s counsel to request information and bills or statements for any treatment the plaintiff had received, but it did not receive a response and ultimately closed its claim in August 2004.
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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 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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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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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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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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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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