Articles Posted in Uninsured/Underinsured Motorist Coverage

One of the essential elements of any South Florida lawsuit seeking uninsured/underinsured motorist benefits is damages. If the damages exceed $75,000, the injured party may file the lawsuit in federal court. Even if the plaintiff files an action in state court, the defendant may remove the case to federal court if the damages alleged meet the threshold amount, but the defendant must remove the case within a strict timeframe. In some cases, however, the exact amount of damages incurred may not be clear at the onset of a lawsuit, and a removal may be appropriate at a later date. The United States District Court for the Southern District of Florida recently analyzed what constitutes a timely removal in a case in which the plaintiff did not allege a specific amount of damages in the initial pleading. If you were involved in a South Florida car accident with an uninsured or underinsured motorist, it is essential to retain a skilled South Florida personal injury attorney to assist you in pursuing benefits from your insurer.

The Plaintiff’s Pleadings

Allegedly, the plaintiff filed a lawsuit against the defendant insurer in February 2018, alleging she suffered personal injuries in a car accident with an underinsured third party, and suffered permanent and continuing losses. She did not quantify the dollar amount of her damages. In June 2018, the plaintiff produced medical bills in excess of $150,000.00. Then, in August 2018, the defendant offered to settle the claim for $100,000.00, which was the UIM policy limit.

It is reported that the plaintiff rejected the offer and in September 2018, filed a motion for leave to amend her complaint, seeking to add a bad faith claim. In doing so, the plaintiff alleged that the defendant originally denied her claim and then admitted that her damages met or exceeded the policy limits by making the settlement offer. In October 2018, the defendant moved the case to federal court. The plaintiff objected, arguing the removal was untimely.
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Car insurance is required in many states, including Florida, but the specific type of insurance required varies by state. While insurance is meant to provide benefits for harm caused by car accidents, it is not uncommon for an insurer to attempt to deny coverage based on the terms of the policy.

A Florida District Court of Appeals recently overruled a court order granting summary judgment in favor of an insurer, on the grounds that the terms of the clause the insurer relied upon in denying coverage were ambiguous. If you were injured in a South Florida car accident involving an uninsured driver, it is in your best to meet with an attorney who is proficient in dealing with insurance companies to assist you in seeking any benefits you may be owed.

Factual Background

Reportedly, the plaintiff’s parents obtained a policy of insurance with the defendant insurer, in which they insured three vehicles. The policy included uninsured motorist coverage for bodily injury suffered in an auto accident with an uninsured motorist. The plaintiff was subsequently injured in an accident with an uninsured motorist while operating a motorcycle that was not an insured vehicle under the policy. The plaintiff, who was not a named insured, sought benefits under the policy on the grounds that the policy provided uninsured motorist coverage for family members. The defendant declined coverage based on exclusionary language, after which the plaintiff filed a lawsuit against the defendant for benefits under the policy. The defendant filed a motion for summary judgment, which the trial court granted. The plaintiff then appealed.

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Car accidents involving uninsured motorists often cause financial hardship. In many cases, your insurance policy allows you to recover uninsured motorist (UIM) benefits from your insurance provider, which can help ease your financial burden.  At times, however, you and your insurer may not agree on what benefits you are entitled to under the terms of your policy.

In a recent case, a Florida Court of Appeals held that where a policy’s language was unambiguous, an exclusion for uninsured motorist benefits for resident relatives of the insured was valid. If you are involved in a car accident in South Florida, you should consult a knowledgeable Florida car accident attorney to aid you in understanding the terms of your policy and the meanings of any exclusions.

Coverage under the Policies

Reportedly, the plaintiff and her mother lived together and each owned a vehicle. The defendant insured both the plaintiff and her mother under separate auto insurance policies. The mother was the only named insured on her policy, which had an uninsured motorist coverage limit of $100,000, while both the plaintiff and her mother were named insureds under the plaintiff’s policy, which had a substantially lower uninsured motorist coverage limit of $25,000. The policies were otherwise the same. Both policies included exclusionary language stating there was no coverage for an insured who sustains an injury while occupying a vehicle owned by the insured or a resident relative if it is not the insured’s car. The policies also stated that if the uninsured motorist coverage of the policy and any other policy issued to the insured or a resident relative both applied to the same injury, the coverage limits would not be added together.

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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 provisions, 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 claim 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.

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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 remittitur 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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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. 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’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 established 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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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. The 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.  The 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.

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