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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Court Says Florida Auto Insurance Policy Doesn't Cover Off-Road Vehicle - Baldassini v. State Farm

January 6, 2014,

Insurance policies can often be complex documents that are rife with legalese and leave a policy holder wondering just what it is that's covered by the contract. In Baldassini v. State Farm, the U.S. Court of Appeals for the Eleventh Circuit explains that state law requires that the terms of an insurance contract be interpreted according to their "plain meaning." In this case, that meant a specific automobile insurance policy didn't extend coverage to off-road, electric vehicles.

spell-check-1090781-m.jpgMr. Fiallo was injured in an accident in Key Biscayne when he was struck by an ST Express, a four-wheel electric vehicle, driven by Ms. Baldassini. The driver was 15 years old at the time of the accident, and her family was caring for the vehicle while its owner was away on a trip. Fiallo later sued Baldassini, her parents and the vehicle's owner for negligence. State Farm, the insurance company under which the owner held a recreational vehicle policy, eventually paid Fiallo $100,00 for his injuries. Although the Baldassinis also held an automobile insurance policy with State Farm, the company denied their request for coverage, finding that this particular policy didn't cover recreational vehicles. The family ultimately settled with Fiallo and assigned to him their legal right to pursue coverage under the State Farm policy.

The insurance company then filed suit in federal court in Florida, seeking a declaratory judgment stating that the ST Express accident wasn't covered under the Baldassinis' policy. The district court agreed, finding that the policy's terms were unambiguous and clearly limited coverage to traditional automobiles.

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"Stacking" Limits in Florida Auto, Motorcycle Insurance Claims - Brannan v. Geico

December 25, 2013,

In Brannan v. Geico, the U.S. District Court for the Northern District of Florida explains how so-called "stacking" limits in auto and other insurance policies can limit the money an insured gets from his or her insurance company following an accident.

motorcycle-silencers-1149406-m.jpgMr. Brannan was injured in an October 2010 Florida motorcycle accident in which the driver at fault for the crash was uninsured. He held two insurance policies with Geico at the time of the accident: a motorcycle insurance policy and an automobile insurance policy for three cars. Although the company offered to pay him the $10,000 limit of uninsured motorist benefits available under the motorcycle policy, Brannan argued that he was entitled to an additional $300,000, representing the full amount of UM benefits available under his separate automobile policy.

Brannan sued Geico for breach of the insurance policies, claiming that he was entitled to "stacked" UM coverage combined under the two policies. In response, the company argued that the auto policy's terms made clear that it didn't cover the motorcycle. The District Court sided with Geico. "Insurance contracts are construed in accordance with the plain language of the policies as bargained for by the parties," the Court explained, citing the Florida Supreme Court's 1993 decision in Prudential v. Swindal. "This Court may not rewrite a contract of insurance, extending the coverage afforded beyond that plainly set forth in the insurance contract."

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Settlements, Ambiguity and Costs and Fees in Florida Car Accident Cases - Alamo Financing v. Mazoff

December 18, 2013,

Settlement is often an attractive option in Florida car accident cases, because it allows the parties to resolve a dispute without sinking time and money into costly and sometimes protracted litigation. In Alamo Financing v. Mazoff, the Fourth District Court of Appeals looks at one of the main requirements of a settlement offer - that it be unambiguous - and explains that a party who rejects an offer and then loses his or her case may be on the hook for some of the opposing party's costs and fees.

untitled-1416933-m.jpgMr. Mazoff was injured in an April 2007 incident in which he stopped his car on a highway and got out to assist the occupants of an overturned vehicle. The overturned vehicle was struck by a passing car while Mazoff was helping the occupants and the overturned vehicle then struck Mazoff. Ms. Alvarado-Fernandez was driving the passing car, which she had rented from a company called Alamo Rental at the time. Alamo Financing, a related entity, owned the automobile. Mazoff sued Alvarado-Fernandez and Alamo Financing almost two years later, alleging that the latter party was vicariously liable for the accident because it owned the car and Alvarado-Fernandez was driving it with the company's permission.

The company offered to settle the claims against it in March 2010 by paying Mazoff more than $13,000. In exchange, it requested that he agree to dismiss the claims and generally release Alamo Finance's "parent corporations, subsidiaries, officers, directors, and employees" from any and all claims. The company deemed the offer rejected after Mazoff didn't respond within a month. A trial court later granted summary judgment to the company. Under Florida's so-called "Graves Amendment," a car owner who leases the vehicle isn't vicariously liable for harm that results from the use, operation or possession of the car during the term of the lease.

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Rear End Presumption, Comparative Negligence in Florida Car Accident Cases - Worley v. State Farm Mutual Automobile Insurance Company

December 11, 2013,

In Worley v. State Farm, the U.S. District Court for the Middle District of Florida explains two important concepts in Florida car accident cases: the presumption of negligence in rear end collisions and the principle of comparative negligence.

hammer-to-fall-673264-m.jpgMs. Worley was injured in a September 2010 accident when a car driven by an uninsured driver rear ended her vehicle. She claimed that she was stopped at a yield sign when the other driver, Mr. Thomas, slammed into her minivan. Mr. Thomas later testified, however, that Worley had begun to proceed through the intersection and make a right turn when she suddenly stopped for no reason, causing the crash. There were no other cars or pedestrians present who would have made it necessary for Worley to stop at the time, according to Thomas.

Worley later sought payment from State Farm, her auto insurance carrier, for combined/stacked uninsured motorist coverage for bodily injury in the amount of $350,000.00. The company declined, finding that Worley was at least partly responsible for the accident. She sued in federal district court, adding a claim for loss of consortium by her husband. Worley later moved for summary judgment, arguing that she was entitled to judgment as a matter of law because Florida law presumes that the driver of a trailing car in a rear end accident is responsible for the crash.

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