Articles Posted in Car Accident

In all civil litigation, the right to appeal an order of the trial court is essential to the judicial process. Incorporating tiers of review injects a system of checks and balances. If one suffers an injury in an accident, files suit, is dealt an unfavorable ruling, and feels the court ruled incorrectly, one can appeal the decision by the trial court judge. Since there are statutory timelines for filing suit, there are timelines for an issue or verdict to be appealed. Statutory time limitations help establish finality and closure for litigants or potential parties. Even with these measures in place, it is not always clear when all appellate options are truly exhausted.  time movesThe Third District recently assessed whether an issue involving Personal Injury Protection benefits (PIP) could be re-examined in light of a state Supreme Court decision issued early in 2017.

The underlying legal issue in this Florida car accident case asked whether or not the PIP automobile insurance policy contained the required specific language to limit provider reimbursements. Section 627.736(5)(a)2.f. Florida Statutes (2013) allows a reduction of 80% of the maximum charges, but the insurer must provide notice it is choosing to elect this reduction to the insured. The medical provider, dissatisfied with the PIP payments issued to them by the auto insurer, filed suit in 2013 for what they considered to be the full amount of PIP payments obligated under the law. The trial court issued a directed verdict for the medical provider, based on its conclusion the auto policy language wasn’t specific, as required by the Florida statutes.

The insurer appealed to the appellate division of the circuit court but did not seek a stay pending review. The medical care provider also did not seek execution or other enforcement of the trial court’s judgment. In 2015, the circuit court appellate panel affirmed the final judgment against the insurer, based on the case law at the time of its decision. The circuit court panel noted in its decision that appeals in other district appellate courts addressed this issue but were in conflict with one another on what constituted sufficient notice. The Third District Court of Appeal did not have a decision at that time to follow.

Personal Injury Protection benefits are available to those who’ve suffered physical injuries in a Florida auto accident. Before PIP is distributed, Florida statutes require the deductible to be subtracted from the total medical care bill before the statutory reimbursement limitations are provided. In a recent district court of appeal decision, an auto insurer attempted to persuade the courts otherwise. In its appeal from the trial court’s calculation, the auto insurer argued the statutory limitations are applied before the deductible is subtracted from that amount.

In the underlying lawsuit, the injured party accumulated several bills for health care from one particular hospital after an auto accident. The total exceeded the $1,000 deductible in his insurance policy. Following the normal course of action, the injured man assigned his PIP benefits to the hospital.  The original hospital charge was $2,781. Busted tail lightTo calculate PIP, the hospital subtracted the deductible and multiplied the difference by 75%, as required by subsection 1.b, which was then multiplied by 80%, leaving a total of $1,068 due. The auto insurer provided payment but applied the 75% before subtracting the deductible. That amount was then multiplied by 80%, which led to an amount of $868.60 due. This was the amount provided to the hospital.

The hospital sued for the difference, arguing this was part of the PIP benefit the insurer owed it. The auto insurer denied liability for the amount and provided affirmative defenses. Both the provider and the insurer filed for summary judgment. The trial court entered summary judgment in favor of the hospital, adopting the calculation method applied by the hospital. The insurer disagreed, initiating the certiorari process.

Many considerations are made when filing a Florida car accident lawsuit. The injured person must name and notify all parties responsible for the injury, think of the experts needed to connect the defendants’ actions to the injury, and collect documentation to show the damages amount needed to cover the incurred hospital bills and lost wages. An important decision, albeit less obvious, is where to file the lawsuit. In a car accident lawsuit, an action may be filed in the home county of the insured, the county of residence of the defendant, or the county where the accident occurred. A recent Fourth District Court of Appeal decision (No. 4D17-1546) reveals additional locations where a lawsuit may be filed when an injured person must file suit against an insurance company to receive uninsured/underinsured (UM) benefits.

This appeal stemmed from a lawsuit against two uninsured motorist insurers. The injured person was a resident of Broward County, and the uninsured defendant driver was a resident of Hillsborough County. Taking the wheelThe accident occurred on I-75 in Manatee County. UM claims were filed with his insurance companies, which were both denied. Both companies were foreign corporations. The injured person then filed suit in Palm Beach County, which contains an office for an agent of one of the insurers. One of the defendant insurers filed a motion pursuant to Florida Rule of Civil Procedure 1.060 to transfer to a different county, which was granted. The plaintiff appealed.

Chapter 47 of the Florida Statutes provides the guidelines for determining proper venue. If the defendant is a domestic corporation, the lawsuit can only be brought in the county where the corporation usually keeps an office to handle its usual business, where the cause of action happened, or where the property in litigation is located. Similarly, lawsuits against foreign corporations are brought where the business has an agent or other representative, where the cause of action accrued, or where the property in the litigation is located. If there is more than one defendant, Chapter 47 allows the lawsuit to be brought in any county in which any defendant resides.

In a recently issued Florida car accident decision (Case No. 2D14-5925), the Second District Court of Appeal affirmed a Florida circuit court ruling that found Chapter 2000-439, section 18, Laws of Florida to be unconstitutional. This ruling stemmed from a serious car accident case that resulted in two periods of multi-day treatment at a publicly funded hospital system. These stays cost a total of $84,199.99. Claims were filed against the driver and the owner of the car, who had insurance policies with separate insurers.

After each stay, the hospital recorded a claim of lien. Soon after the accident, the driver’s insurer offered the injured person to pay the limits of the driver’s bodily injury coverage as a “full and final settlement,” based upon the amount shown in the hospital lien. This was communicated by the injured person’s attorney to the hospital, who asked the hospital to write off the balance of the amount due. The hospital declined and proposed a counter offer of $6,666.66.  Fast CarsThe injured person then signed and delivered a release to the defendant driver’s insurer. The auto insurer provided a $10,000 check to the attorney representing the injured person for the bodily harm, a separate check to the attorney for property damage, and $10,000 worth of Personal Injury Protection (PIP) directly to the hospital. The owner’s insurer paid the bodily injury limit of $10,000 directly to the hospital.

The hospital then filed a lawsuit against both insurers of the defendants, alleging that each had impaired the liens the hospital recorded against the injured person and that the entire amount of the two liens over $84,000 remained unpaid. The owner’s insurer was dismissed from the lawsuit by joint stipulation, and the driver’s insurer filed a motion for summary judgment, claiming Chapter 2000-439, section 18, Laws of Florida is not permitted by Article III, §11(a)(9) of the Florida Constitution. The special act in question created the public health care system in Lee County, setting forth duties and powers for its maintenance and operation, including the enforcement and execution of liens. Article III of the Florida Constitution specifically states there can be no special law or general law of local application pertaining to the creation, enforcement, impairment, or extension of liens for clients based on private contracts.

When responsible drivers purchase car insurance, especially additional coverage for uninsured/underinsured motorist (UM) coverage, they believe they are ensuring payment when accidents occur. A recently issued opinion from Florida’s Second District Court of of Appeal presents all of the various considerations a claimant should have when seeking payment from the insurer. The plaintiff-appellant in this Florida auto accident lawsuit was injured as a passenger in her father’s car. The woman filed claims against the driver of the other vehicle, alleging the costs of her injury exceeded the policy limits of the defendant. The injured daughter was covered by two UM policies through her father and mother, each from different auto insurers. The father’s policy provided $20,000 worth of UM coverage, and her mother’s provided $25,000 of UM coverage.

The daughter sued her mother’s insurer for UM benefits but did not sue her father’s insurer.  Pushing throughThe circuit court found she did not satisfy the condition precedent in her mother’s policy, denying her benefits of any amount. The court additionally ruled that even if the condition precedent were satisfied, she would only be able to access the difference between the policies in the amount of $5,000.00. Her mother’s insurer moved for summary judgment after this assessment, knowing the statute of limitations prevented the injured person from obtaining the father’s policy limits, so she would never be able to satisfy the preceding condition. The injured person appealed.

The insurer’s policy stated that an injured party may not sue for benefits if they have not met the terms of the policy. The relevant parts of the mother’s policy stated that when the injured person is entitled to recover damages in excess of the other policy limit, the insurer will pay up to the UM policy limit after the other collectible insurance has been exhausted. Florida Rule of Civil Procedure 1.120(c) allows condition precedents to be generally made, but the party denying the occurrence or performance of a condition precedent must plead it with particularity and specificity.

After a serious car accident, the last thing you want is unexpected challenges. An experienced Florida wrongful death attorney can help guide you through the civil litigation process when a difficult period becomes overwhelming. In a recent case (No. 3D15-2750), the parents of a child faced the stressful situation of the defendant disappearing. Their child was killed in an auto accident, and they filed suit for wrongful death. When the defendant driver disappeared, the parents were unable to hold him accountable. Nevertheless, the parents continued their lawsuit.  Hand and wrist

The trial court entered two final summary judgments in favor of the parents. The auto insurer appealed, arguing the judgments were entered in error. The auto insurer notified the defendant driver of its reservation of rights to deny coverage, since the at-fault driver was not listed as a driver under the insurance policy. Soon afterward, the driver absconded and could not be found. The insurer notified the defendant of its reservation of rights a second time, since he failed to cooperate with the investigation. Over the course of this proceeding, several more letters notifying him of his reservation of rights were mailed. Despite this, the insurer continued to represent him for many years of the proceeding, including the post-judgment phase of litigation. The jury returned a verdict of over $15 million in favor of the parents, and the trial court entered a final judgment consistent with the verdict. The insurer then sought to decline coverage based on the defense of breach of cooperation.

The appellate court ruled that the insurer could not use this defense because it failed to follow the requirements of section 627.426 of the Florida Statutes (2015), the Claims Administration Statute. This statute prevents insurers from denying coverage unless they have sent a reservation of rights to assert a coverage defense to the named insured by registered or certified mail or hand delivery to the last known address of the insured within 30 days when they knew or should have known they needed to use the coverage defense. Within 60 days after this, or no later than 30 days before trial, the insurer must then give notice to the named insured of its refusal to defend the insured through registered or certified mail, obtain a non-waiver agreement, or retain an independent attorney who is mutually agreeable to the parties.

In a Florida car accident case, an injured person can be owed damages from multiple parties for a variety of reasons. One example is a chain reaction car accident, in which all of the acts of negligence happen almost simultaneously. A passenger could file suit for the negligent acts of the driver of her car and the drivers of other vehicles involved. Another example may be a construction accident in which an injured party is injured in one accident, but the cause of the accident stems from the negligent acts of other subcontractors preceding the accident. The injured person may seek recovery from his own employer under workers’ compensation and file personal injury lawsuits against the contracting companies.

A recently issued decision (Case No. 2D16-4642) looks at the due process surrounding an underinsured (UM) automobile accident with three separate claims of relief. Precise cuttingThe injured plaintiff suffered serious injuries after an intoxicated driver hit the car in which she was a passenger. The injured person filed suit, asking for 1) damages for the impaired driver’s negligence, 2) UM coverage from her own auto insurer, and 3) punitive damages from the impaired driver for his wanton conduct. The insurer moved to remove itself from the claims against the intoxicated driver, citing section 627.4136(1), Florida Statutes (2014). This statute dictates the non-joinder of insurers. The specific subsection states that a cause of action against a liability insurer by a person not insured under the policy must first obtain a settlement against the person insured under the policy before pursuing any cause of action against the insurer.

The insurer also claimed it was entitled to a separate trial from the driver under the rule of civil procedure FRCP 1.270(b) to avoid prejudice. The insurer claimed it was worried the jury would unfairly increase the verdict amount after hearing of the intoxicated driver’s behavior and the fact that the injured person was insured. The trial court agreed with all of the insurer’s arguments for severance and granted its motion.

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In a personal injury lawsuit, the injured person must do more than show the defendant caused an injury. The injured person must also provide details of the damages incurred as a result of the injury. Some may be straightforward, like the bill for services from the Emergency Room visited after the accident. Others require more analysis and calculation. A recent Fifth District Court of Appeal decision (5D15-4423) discusses such damages, and the appellate Foggy tropicscourt reviewed whether or not the court erred by not allowing a new trial after a Florida car accident.

At trial, the injured party was awarded $2.13 million in damages for the permanent injuries he sustained from the auto collision. The defendant driver appealed, arguing the trial court should have granted a new trial based on the improper closing arguments. The driver also sought to limit the jury award for pain and suffering and future medical expenses. All of these motions were denied by the lower court and affirmed on appeal. The appellate court did grant a new trial for the defendant’s motion for remittitur related to the lost earning capacity and collateral source payments.

On this subject, the injured person provided testimony at trial that he worked as a plumber with an hourly wage between $18 and $19.50. He stated his job had evolved into a less physically demanding role in which he only performed minor plumbing duties, but his pay remained the same. The injured person testified that his goal was to continue working as a plumber until age 65 unless he was laid off or moved to another job. On cross examination, the injured man acknowledged he went back to full-time work performing all plumbing duties, even though he was still receiving chiropractic care.

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In the early phases of litigation, parties may move for summary judgment, arguing that the case should not move forward due to some legal preclusion specific to the type of injury. A common argument made by defendants in South Florida car accident cases is that there is no genuine issue of material fact for the jury to consider, so dismissal is the only route acceptable under the law. A trial court has substantial discretion to dismiss an action, but it is not allowed to dismiss based on the weight of the evidence for either party. If there is any factual question of whether or not a defendant or defendants could be found liable, that question must be answered by a jury.

A recent case addresses a summary judgment entered in favor of a defendant golf club that served drinks to a drunk driver who crashed into the decedent, causing her death. The decedent’s representative filed suit against the driver and the golf course that sold alcohol to the driver prior to the accident under Florida’s reverse dram shop liability statute, section 768.125, Florida Statutes (2014).Sand Trap At the time of the accident, the driver had a blood alcohol content of .302.

In its defense, the club asserted it was not liable under the dram shop statute since they did not know the club member was habitually addicted to alcohol. The club stated there was no competent evidence on record that the driver was habitually addicted, nor was there evidence the club had knowledge of her alleged addiction. In response, the representative filed depositions of the driver, a friend of the driver, and relevant employees of the club. The depositions revealed the driver played 70-80 times over a three-year period prior to the crash. The friend testified that she was intoxicated nearly every time they played together at this club. The driver often started with two strong whiskey cocktails, poured by staff of the club. The driver would then return to the clubhouse at the midpoint turn of the course for a third whiskey cocktail, all while purchasing and drinking additional alcoholic beverages from the “cart girl” employee of the club. The friend testified that on the day of the accident, the “cart girl” poured and served eight ounces of pure alcohol to the driver. The estate also submitted an affidavit from a laboratory director at the County’s medical examiner’s department. The affidavit estimated the driver’s blood alcohol content when she left the club to be .27. Despite this proof, summary judgment was granted to the club. The estate appealed.

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If an accident occurs in Florida, an injured party can pursue legal recourse in this state. In a recent case, the appellate court looked at a prior judgment that attempted to address whether a party injured in a Florida car accident could access Personal Injury Protection benefits under her policy obtained in Michigan after she reached a settlement agreement under a Michigan rule of civil procedure. Beach RoadIn this original agreement, the parties stipulated to an entry of a judgment for the injured party for $30,000. Later, the injured party brought a second action in Florida against the insurer for additional PIP benefits from the same policy, based on the medical expenses incurred prior to the filing of the lawsuit.

The insurer moved for a summary judgment, arguing this claim for PIP should not proceed under res judicata, which bars matters that have already been adjudicated by a competent court. The injured woman countered that res judicata did not apply to the PIP benefits, since the entered judgment was for the expenses incurred after the complaint was filed three years before. The trial court determined that the parties had not reached a “meeting of the minds” when the first claim was resolved and vacated the stipulated judgment. The court cited Fla. R. Civ. P. 1.540(b)(1), (2), (4), which allows a trial court to relieve a party from a judgment when the order or judgment is void; when a mistake, inadvertence, or excusable neglect requires relief; or when there’s been the discovery of important evidence. The trial court did not specify which part of the rule it was applying to the situation at hand. The insurer appealed.

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