Articles Posted in Car Accident

Before a trial, there are many instances of communication that occur between the injured party and the defendant’s auto insurer. Sometimes a defendant’s insurer will offer to provide the Personal Injury Protection (PIP) Benefits or an amount within the policy limits early in the negotiating phase of the process. These settlement agreements often come with language requiring the party accepting funds to waive their right to pursue a civil action related to the matter at hand. A recent Third District Court of Appeal decision (No. 3d17-891) covers the considerations an party injured in a Florida car accident should make when discussing a settlement.

In this lawsuit, a party injured in a car accident filed suit against the policy holder. The defendant’s auto insurer sought permission to intervene so that it could seek enforcement of a settlement agreement it believed Desk fileshad been reached between the injured person and the defendant before a personal injury action was filed. The plaintiff was injured on December 24, 2013, treated at a hospital, and discharged in January. Soon afterward, the defendant’s auto insurer sent a letter to the injured person’s counsel, offering to provide the $10,000 bodily injury policy limit to settle the claim against the insured. The letter included a check and a standard release payable to the injured person, his attorney, and the treating hospital. The insurer provided an explanation for its inclusion of the hospital, stating it noticed a lien for the provided medical services. The injured person and his counsel did not respond, nor did they cash the check.

In the following year, the injured person retained a new attorney, who notified the insurer he was the counsel of record and presented a demand for the full policy limits. The attorney requested a settlement draft to his office by the end of the month, and the insurer indicated its willingness to comply and accept modifications to the letter. Another letter was sent, similar to the first one, with a check payable to the injured person, the attorney, and the hospital. The new attorney believed the payment to be a counteroffer, since it included the hospital as a joint payee, and rejected the settlement payment. The insurer and attorney continued to exchange communications, debating about whether or not a settlement had been reached. The insurer issued two more checks with the hospital removed as a co-payee. The injured person rejected both payments. The insurer then filed a motion to enforce the settlement. The matter was heard, and the insurer’s motion was granted to dismiss the lawsuit against the at-fault driver with prejudice, subject to the terms of the settlement agreement. The injured person appealed.

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In Florida, an injured car accident victim can only recover future medical expenses if the care and cost are “reasonably certain” to be incurred. This is accomplished by meeting her burden to provide the fact finder with competent, substantial evidence that future medical expenses are more likely than not to be incurred. An injured party often uses treating physicians and medical administrative staff to relate the need for care and the cost of care. The Fifth District recently reviewed these types of damages in Case No. 5D16-533, in which a Gavel Restingjury awarded a large sum of money for several past and future intangible damages to a woman seriously injured in a Florida car accident, including $250,000 worth of future medical expenses.

The defendant driver appealed, and the court affirmed most of the verdict in favor of the injured woman, but it ordered a new trial or adjustment to the amount of damages, known as remittitur. The court emphasized that past medical expenses by themselves are not enough for a jury to use to calculate future medical expenses. In this lawsuit, the $5,365 for surgery was uncontested. The only testimony provided was about the previous medical bills and household goods and services used before the accident. The appellate court found this to be insufficient to meet the standards established by Florida case law precedent, and it reversed the award. The court allowed the parties to either enter a remittitur under section 768.043 of the Florida Statutes or be granted a new trial for the sole issue of the loss of future economic damages.

The Fifth District also assessed the collateral damages in Case No. 5D17-575 following a jury verdict in favor of a woman who was injured in a rear-end car accident case. The injured woman suffered shoulder, neck, knee, and low back pain as well as depression as a result of her injuries. The injured woman alleged she was unable to work due to her injuries, therefore losing a lot of income and the ability to earn income in the future. The defendant driver conceded fault but challenged the cause of the alleged injuries by the plaintiff and their respective costs. The jury returned a verdict awarding $50,000 for past medical expenses, $25,000 for future medical expenses, and $50,000 for past lost earnings. The jury declined to award any damages for future lost earnings.

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Personal injury litigation involves a lot of strategic anticipation. Even if a plaintiff is successful at trial, a defendant can ask for an adjustment, arguing the evidence did not support the amount of of damages awarded to the injured person. A Florida District Court of Appeal recently assessed a trial court’s refusal to grant Rear-ended carremittitur for a jury verdict awarding $100,000 for future medical expenses in an underinsured motorist (UM) car accident case.

The plaintiff was injured after a Florida car accident with an underinsured motorist. Even though the other driver admitted fault, her own insurance company refused to provide the requested UM coverage from the injured woman’s policy, arguing the alleged injury was not necessarily caused by the accident. The injured woman filed suit against her insurer for the benefits, and the jury awarded her $685,800, which included $158,000 for past medical expenses and $100,000 for future medical costs.

On appeal, the insurer argued the expert’s testimony was not properly disclosed prior to trial, that a treating physician should not have been able to testify as to why he referred the injured woman to a neurosurgeon, and that the comments made by the injured woman’s counsel during closing arguments were unfairly prejudicial. Upon review, the Court of Appeal did not find the trial court to have abused its discretion and affirmed the lower court’s rulings. However, the appellate court found the refusal to grant remittitur to be problematic.

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Many legal discussions about time and deadlines in a personal injury action revolve around filing or answering something too late. Sometimes, an action can be filed too early. If a claim is added too early or too late, the litigation can either be dismissed or derailed. This is seen in a recent car accident case from the Third District Court of Appeal (No. 3D17-1086), which determined a third-party bad-faith action was filed prematurely against the defendant’s insurance company.

The plaintiff sustained an injury as a passenger in a vehicle after another woman struck the car. The Passing of timedefendant driver was insured with a bodily injury policy that provided coverage for $10,000 per person and $20,000 per occurrence. The injured passenger filed suit against the woman within a year of the accident but moved to amend the complaint to include the defendant’s insurer. In the amended complaint, the injured person added a third-party bad-faith claim against the defendant’s insurer.

The insurance company moved to dismiss, arguing the bad-faith claim had not accrued and was premature. Section 627.4136 of the Florida Statutes requires a person seeking an action of liability against another party’s insurance company to obtain a settlement or verdict against the insured of the policy first. The trial court did not dismiss the claim against the insurer, instead choosing to abate the action until the negligence case against the driver was resolved. The insurance company appealed.

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When serious injuries are litigated in a car accident case, the injured party must show the jury the connection between the injury suffered and the accident. The injured person must also demonstrate the types of care needed to treat the long-lasting effects of the injury, along with the associated costs. This is often accomplished through the testimony of expert witnesses.Spinal column The Fifth District recently assessed the testimony of experts in a Florida uninsured/underinsured motorist accident case to determine whether or not the trial court should have awarded a directed verdict.

In this case, the plaintiff suffered injuries to her neck and spine after a car accident. The injured person and her husband sought UM coverage from their auto policy, which was denied. The case proceeded to trial, at which the injured woman and her neurosurgeon testified to the cause of the injury and its permanency. At the end of the insurance company’s case, the plaintiffs moved for a directed verdict, which was eventually granted after the jury verdict. The jury found the plaintiff suffered injuries, damages, and losses, granting $7,000 in lost wages. It did not find the woman suffered permanent injuries. The trial court granted the injured person’s motions for a directed verdict and a new trial.

Florida case law previously established a motion for directed verdict should only be granted when there is no reasonable evidence on which a jury can rely for its verdict in favor of the non-moving party. If there is any conflicting evidence, a directed verdict is not appropriate because factual determinations are to be made by the jury. This includes determinations of the permanency of an injury. A directed verdict for permanency based on expert testimony is disallowed when it is rebutted by another expert, the testimony is impeached, or other conflicting evidence is provided.

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Florida car accidents are often caused by poor choices made by other drivers or bad weather conditions. Occasionally, they are caused by hazards created by construction zones or the design of a roadway. The Third District Court of Appeal recently issued an opinion in a negligence action filed against a gas station. The plaintiff alleged a cut across a median requested and promoted by the gas station caused the errant car to strike the plaintiff’s car, causing her bodily injuries.  gas pumpThe claims made by the injured woman against the gas station were dismissed by the trial court, which was affirmed in part and reversed in part by the Court of Appeal.

The car accident happened on a four-lane road with two lanes of traffic on each side of a concrete median. The plaintiff stated another car pulled out of the gas station, went across the cut in the median, and joined the lane of traffic she was occupying. The injured woman claimed the car from the gas station caused her to lose control of her car and hit a palm tree. She did not allege any obstruction in her view.

The gas station purchased the property near the accident after making a deal with the city several decades ago. The gas station petitioned for a cut in the median so that traffic could enter and exit from both eastbound and westbound lanes. During the application process, the gas station submitted a traffic study. The plaintiff alleged that this was done improperly and that the gas station did not make necessary adjustments to their signage to deal with the foreseeable dangers to the public.

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Florida’s Fifth District Court of Appeal recently issued a ruling in favor of an estate seeking coverage from an auto insurer. A man suffered a fatal accident while riding his motorcycle, and the deceased’s estate sought uninsured motorist coverage benefits from his collector vehicle insurance policy. This policy provided $300,000 worth of coverage for stacked uninsured motorist (UM) coverage for $416 per year. The insurer denied the claim, and the estate filed suit. The insurer argued it was not required to provide uninsured coverage because the deceased was not in the vehicle at the time of this Florida motorcycle accident. The insurer highlighted several limitations and exclusions within the policy to support its argument.

Whenever an appellate court analyzes an insurance policy dispute, it first looks at the insurance policy to determine which sort of coverage was agreed between the parties. Case law for contracts has long Standing motorcycleestablished that courts must first look at the plain language. Auto insurance policies, however, are also governed by state statutes, which favor coverage in the presence of ambiguities or conflicting clauses. The policy in this case was designed to cover the collector vehicle and defined the insured as a policy-holder while occupying the covered vehicle. The policy additionally required the insured to own a principal means of transportation insured by a separate policy. Failing to do so would remove the coverage from the collector vehicle policy.

Both parties had moved for summary judgment in the lawsuit for UM benefits. The insurer looked at a prior decision in the Second District that held specialty insurance policies for antique cars are not required to provide UM coverage for accidents involving other vehicles. The insurer also pointed out the lower premium, which was calculated based on a more limited risk and only covered specific “collector” vehicles at that. The estate asserted the Second District came to the wrong conclusion, based on the conflict with Section 627.727 of the Florida Statutes (2015) and Florida Supreme Court precedent.

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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.