Articles Posted in Motorcycle Accident

The Florida First District Court of Appeal recently issued an opinion regarding the coverage in an auto insurance policy for a woman severely injured in a motorcycle accident.  The woman’s mother had purchased “two-parent family” auto insurance coverage for herself, her spouse, and her children.  “Dependent children” were defined in the mother’s policy as natural children who are unmarried, under 25, and qualify as legal dependents for tax exemption purposes under the US Tax code. 

The injured woman filed suit and the matter eventually went to a jury trial.  Both witness and expert medical testimony were offered, providing conflicting accounts to the fact-finder.  The insurer claimed the injured woman was not in a coma long enough to qualify for coverage.  The appellate court found there was competent substantial evidence supporting the trial court’s findings of the injury.  The trial court agreed the type of injuries suffered were covered within the auto policy for the coma and third degree burns.  The court, however, did not agree the injured woman was a “dependent child” under the policy.  Standing motorcycleThe court determined she was ultimately not covered and the insurer was not obligated to pay benefits for her injury.  The family appealed. 

Case law directs courts to favor the plain language of an insurance contract.  The appellate court found the policy language to be extremely clear about the definition of a dependent.  The parties agreed the IRS definition for a dependent was based on Internal Revenue Code (I.R.C.) section 152 which allows a qualifying child to be anyone who bears a relationship to the taxpayer, shares the same principal place of abode as the taxpayer, meets the age requirements (under 19 by the end of the calendar year, or under 24 and a student); and has not provided more than half of the individual’s own support.  The insurer argued the policy’s definition contradicted itself with the phrase “under age 25”, which differs from the age requirements in Internal Revenue Code (I.R.C.) section 152.  When she was injured, the plaintiff was over the age of 19 and not a student nor disabled. 

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In Okeechobee Aerie v. Wilde, Nos. 4D14-2770 and 4D14-2771, the court of appeals reviewed an appeal stemming from an $11 million verdict awarded to a motorcyclist injured by a drunk driver. The driver had recently left a social club bar that served him alcohol and contributed to his heavy inebriation. The driver’s blood alcohol content was .26 at the time of the accident, and the testimony of servers during the trial indicated that they knew he was an alcoholic. The injured motorcyclist and his wife filed suit against the bar that sold him alcohol.Motorcycle accident After the trial concluded in their favor, the social club bar appealed, arguing that the trial court erred in several ways. The appellate court agreed, remanding the case back for a new trial.

The social club bar disagreed with the court’s determination to allow evidence and a jury instruction regarding Florida’s Responsible Vendor Act. The injured motorcyclist and his wife claimed that the Act created two causes of action. The bar claimed it created only one cause of action. The appellate court pointed out that it actually eliminates a cause of action, shielding a person or vendor that serves alcoholic beverages from suit in some situations when the right to bring a claim might otherwise exist. An exception does exist, however, if the beverages were sold negligently to a habitual alcoholic. The court felt in this case that it was not enough to show that a drinking establishment knowingly served a habitual alcoholic. The court explained that the injured person must show that the establishment owed a legal duty to the injured person and that a breach occurred. Evidence of common sense, the bar’s failure to adequately train its staff, and societal standards were acceptable, but evidence of the Act went a step too far.

This ruling affected the next issue of whether or not the court erred by allowing evidence of a prior case in which a woman was killed by a different drunk driver who was served by the same establishment. This evidence was submitted solely on the basis that the bar was aware of the statute and its responsibilities under it. Since the introduction of the Act was deemed unacceptable, the evidence of the prior accident was also ruled inadmissible.

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Under Florida law, it is possible for an at-fault driver to be liable for damages that exceed the limits of his or her insurance policy.  While that option is available, often the at-fault driver is not financially able to provide the amount needed by the injured party, especially in a short amount of time. Recently, we wrote about the need for UM coverage on your own policy, in the event an at-fault driver has no insurance or inadequate coverage to pay for expenses incurred from lost wages and medical bills.  A recent published opinion, Kropilak vs. 21st Century Ins. Co., (No. 14-13837), provides insight into alternate ways to pursue payment from the at-fault party’s insurance company when the damages far exceed the policy limits.

vintage-motorcycle-1449383-640x960In this case, a man was injured while he was on his motorcycle after a woman made an improper left-hand turn in front of him.  The motorcyclist’s injuries were severe enough to need a helicopter transport to the hospital.  The woman reported the crash to her insurance company, which sent her a letter emphasizing the policy limits.  In this letter, the at-fault driver was advised she could be held liable for anything in excess of her limits of $10,000, and the insurance company would not be responsible for this excess liability.  The woman was advised she could retain her own counsel. After receiving notice of the injured person’s identity and hospital expenses that were over three times the policy limits, the insurance company mailed a settlement check for the policy limits to the injured man’s attorney.  This was not cashed or formally accepted.

Following this event, the insurance company retained counsel to represent the at-fault party’s interests under her policy.  As you may know, as part of an insurance contract, the insurance company agrees to indemnify or act on behalf of the insured in the event of an accident.  This attorney, once retained, advised the insurance company that the damages suffered by the injured person could reasonably be expected to fall between $150,000 and $300,000.  Follow-up was conducted with the injured person’s attorney regarding the check and settlement offer, but no response was provided for over a year. After a year, the injured person’s attorney sent a letter to the at-fault party’s attorney to address the “failure to settle this claim.” The attorney offered to settle with a consent judgment against the woman for $150,000, which would limit the woman’s personal liability and protect the insurance company from a possible “bad faith” claim, which could subject the insurance company to additional, separate liability from the accident.

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