Articles Posted in Uninsured/Underinsured Motorist Coverage

Section 627.727, Florida statutes delineates the requirements for (UM) uninsured motorist coverage – specifically how an insurer must document the rejection of coverage. The insured can select UM coverage lower than the bodily injury liability limits of the policy or reject coverage entirely, but she or he must do so through writing. In a recent Florida car accident case, No. 4D17-332, the court looked at whether an insurance company failed to follow the UM statutory guidelines. The insured purchased uninsured motorist (UM) coverage for two vehicles. He filled out an online form, which did not allow him to sign anything, nor did it provide the ability to reject or deselect non-stacked coverage. The signing page also did not have warning language, as required by law. The appellate court determined the insurer failed to comply with the written notice carprovisions, and as a result, the insured did not knowingly reject stacked coverage or accept non-stacked UM coverage.

The trial court judge found the documentation used by the insurance company did not comply with the specificities of Florida statute 627.727. The written notice with warning language was to be in a 12-point font and signed by the insured. The warning page did not have a signature line for the insured and was not signed by the insured. A different page had a signature but only incorporated the required warnings by reference. The judge also noted the online form did not allow a user to un-select the automated waiver of stacked coverage. The judge granted the insured’s motion for summary judgment, and the insurer appealed. The insurer did not argue against any of the judge’s findings on appeal, instead claiming the policy-holder orally rejected the stacked UM coverage. The case went on to be tried on the oral rejection issue alone, with a jury verdict in favor of the insurance company.

Section 627.727, Florida statutes is filled with very specific requirements preceded by the word “shall,” strictly limiting the interpretation to what is within the body of the statute. The appellate court noted this was all written with the intent to promote UM coverage and avoid costs borne by the taxpayer after car accidents. The court stated the legislature understood the short attention span of the average consumer and the need for essential information to be relayed efficiently and prominently, thus coming up with the specific requirements. Various appellate courts and the state’s supreme court reviewed these statutory mandates and found them to be acceptable. The legislative history shows this to be a compromise between keeping drivers adequately covered in the event of a UM accident and the insurance companies’ competition.

Civil courts have the power to sanction parties if actions taken or not taken during a litigation period are egregious to the process. A recent Florida uninsured motorist accident appeal heard in Florida’s Fifth District Court dealt with a sanction issued by the trial court to the party. The appellate court felt dismissing the action with prejudice was too harsh a penalty for the concerning behavior.

The plaintiff was injured by an uninsured motorist on a highway in 2014. The injured person’s policy provided $250,000 worth of uninsured motorist coverage. His insurance company denied his Highwayclaim for benefits, and the injured person filed a breach of contract claim against his insurer. During the discovery phase, the insurance company subpoenaed the injured person’s medical records and history, insurance claim history, and employment history.

As a courtesy, the injured person advised the defendant insurer that he was scheduled for surgery within a few weeks. The insurer asked for a compulsory medical examination (CME) prior to the scheduled surgery, and it offered two dates for this to occur prior to the procedure. The injured person advised he could not make either date. The insurer then asked the court to mandate the injured person to undergo the CME, asserting there was insufficient time for it to conduct one before the injured person’s surgery. The trial court granted the motion, ordering the injured person to undergo the CME or delay the procedure. The trial court also required the insurer to provide two more dates for the CME.

Continue reading

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.

Continue reading

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.

Continue reading

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.

Continue reading

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.

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.

Florida auto accident litigation has many phases after the initial lawsuit is filed. Many appellate decisions focus on summary judgments or jury verdicts, but a lot of legal process can be left after a jury trial – especially in auto accident cases in which additional claims must be pursued separately. Post-trial motions can alter jury verdicts to the point they are unrecognizable from the amounts awarded by a jury of peers. Experienced personal injury litigators can make a huge difference by aggressively pursuing different avenues of legal relief and defending the amounts awarded by a jury.

This summer, the Third District Court of Appeal issued an opinion that dealt with an award of attorneys’ fees from the injured person to the injured cyclist’s insurance company. An underinsured driver hit the injured man, who was riding his bicycle in a pedestrian crosswalk. The injured cyclist alleged the collision caused severe and permanent injuries worth over $300,000.bicycleThe injured cyclist filed suit against his own auto insurer, asking for the UM (underinsured/uninsured) coverage through his personal auto insurance policy.

Prior to trial, his insurer provided a couple of proposals for settlement. The proposals gave notice of the insurer’s attempt to resolve the claims. Attached to the proposals were releases that broadly covered all present and future claims that he or any of his heirs or representatives may have. The injured person took the matter to trial, at which the jury found the injured cyclist and the defendant driver to be equally responsible for the injuries that occurred. The jury awarded $110,000 for past medical expenses, but it declined to award future damages, past pain and suffering, and future pain and suffering. The court conducted a post-trial hearing and considered motions by both parties. Ultimately, the court entered a final judgment in favor of the injured person for $5,000. The plaintiff appealed the final judgment, which was affirmed by the Third District Court of Appeal in a per curiam decision. Following that determination in its favor, the insurer then moved for attorneys’ fees, based on its proposal for settlement.

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.

Continue reading

Florida car accident trials can become intricate, complicated lawsuits to litigate. This can be seen in a recent appellate case (No. 3D13-2005) that addresses whether or not it was improper for the trial court to allow evidence of the at-fault driver’s intoxication during the compensatory damages phase of the trial. The case stems from a serious car accident in which the injured party was struck head-on by an intoxicated, uninsured motorist. The injured person’s UM policy only covered up to $20,000 per person. The injured person filed suit against the insurer for its failure to pay the uninsured motorist coverage, alongside a claim for compensatory and punitive damages against the defendant driver.

Prior to trial, both the driver and the insurance company admitted liability for the accident, and they admitted that under the law, the driver was liable for punitive damages for his actions, since he was under the influence of alcohol when he was driving. With the question of liability settled, the remaining issues were the amounts of compensatory and punitive damages to be awarded to the injured person. Compensatory damages cover costs that the injured person incurred after the accident. These can also include future damages that are reasonably certain to occur.  Car accident Punitive damages are exactly as they sound, damages intended to punish the party for egregious behavior.

The insurer moved to bifurcate, or separate, each type of issue. The insurer also moved to exclude references to the driver’s intoxication during the first trial over the compensatory damages. The court granted the first motion but denied the second, and this denial formed the basis of the insurer’s appeal. The insurer argued that the driver’s intoxication became a central theme of the first trial, and the insurer was prejudiced as a result. The injured person presented proof of his damages. He acknowledged a prior back pain condition that led to spinal surgery, and he admitted that he went a long time without medication. The injured person also acknowledged that he became addicted to painkillers after he was prescribed some after the accident. The injured person stated that he now takes suboxone to wean himself away from Oxycontin and that it costs around $560 a month. The injured person also discussed his future earning capacity, saying that he retired right before the accident, accepting a retirement package, but he also supplemented his income by working in the diving industry, earning $2,000 to $2,500 a month. The jury found for the injured person, awarding him over $970,000 in compensatory damages, including over $300,000 for future medical expenses and loss of future earning capacity.

Continue reading