Articles Posted in Uninsured/Underinsured Motorist Coverage

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.

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.The 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. The 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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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.  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.

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In State Farm v. Bailey (Case No. 2D15-3487), an appellate court reversed a ruling in favor of an injured motorist, ruling that the scope of the injured person’s employer’s UM (uninsured/underinsured) motorist coverage did not extend to the injured person. In this case, the injured man was working when the accident happened. The injured man was driving a flatbed vehicle with a crane attached, but he was standing 10 to 20 feet away from the truck, observing the operation of the crane, when the accident happened. The uninsured motorist struck the worker while he was monitoring the crane after losing control of the vehicle.

The injured worker filed suit against the employer’s auto insurer for uninsured motorist coverage. Both the injured worker and the insurer filed for summary judgment. The insurer argued that the injured man was not covered because he was not inside the insured vehicle. 

The appellate court first tackled the question of who was considered insured under the employer’s policy. In the policy, an insured was defined as either the person named in the policy’s declarations, his or her spouse, their relatives, or any other person who was occupying the insured car within the scope of consent of the owner. The Business Named Insured Endorsement section of the policy defined an insured as the named party, any person using the car within the scope of consent, and any other person or organization liable for the use of the car. The appellate court found that the only way the injured worker would be insured under the policy was if the injured person fit the “occupied” section of the definition.

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If you are in an auto accident, and the at-fault driver does not have insurance or enough insurance to cover your damages, you, as a policyholder, can look to your own car insurance for coverage under your Uninsured/Underinsured Motorist (UM) provisions. UM policies can help relieve the burden of medical expenses and lost wages, but only if all of the coverage available to you is actually paid. If an insurance company fails to uphold its contractual obligation to pay for claims covered under the policy, a bad-faith action may be filed if the insurance company does not use diligence and care in the investigation and evaluation of the claim, as required by state law. The federal Eleventh Circuit Court of Appeals recently looked at a bad-faith claim in Cadle v. Geico General Ins. Co. (No. 15-11283) to determine whether or not the District Court erred in granting a judgment as a matter of law to the insurance company.

In this case, a woman was rear-ended by a man on I-95. She was insured with a stacked UM policy with a $75,000 limit. The at-fault driver only had a policy with a $25,000 limit. Following the accident, she sought treatment for her pain, but nothing provided relief. The injured woman had previously been in a car accident 18 years before, but she had been doing well prior to the accident at issue. The injured woman’s pain continued for the next several years, ultimately resulting in a surgery that removed the 20-year-old facet in her neck and replaced it with a larger facet to stabilize her neck. The cost of all the pain management and surgery totaled over $120,000.00. The insurance company requested the medical records for the care from that accident, and upon review, it only initially offered $500 to settle her UM claim, later increasing it to $1,000. After 2 1/2 years of claims and requests for information, the insurer served the injured woman with a proposal for settlement. The case went to trial in Florida’s state court system, where the jury awarded $900,000, off-set by collateral sources and prior bodily injury settlement. The judge then limited the gross verdict to the amount of the UM policy limits of $75,000 but noted that she was free to pursue other causes of action, including a bad-faith cause of action.

At the federal bad-faith trial, the insurance company provided an expert witness who testified the insurance company did not receive any medical record stating the woman had suffered a permanent injury from the accident. At the end of the trial, the insurance company moved for a directed verdict, stating that the injured woman failed in her burden of proof to show that the insurance company did not accept her demand for the policy limits in the UM benefits. The trial court ultimately agreed with the insurance company, finding that the injured woman and her counsel should have provided the medical records to the insurance company. The federal trial judge ruled that the insurance company was not obligated to conduct their own medical examination to determine a permanent injury. The Circuit Court of Appeals agreed with the District Court’s determination that there was no evidence presented at the trial to show that the insurance company had notice of her permanent injury and therefore was obligated to offer a settlement. Since the injured woman already received economic damages through the payments of PIP, the at-fault driver’s insurance limits, and her own UM policy limits, the judgment as a matter of law was upheld, and she did not receive any additional damages, due to the lack of proof she suffered any permanent injury.

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In Florida personal injury and car accident cases, there are always four elements for an injured person or persons to prove:  1) a duty created by law directing the at-fault party to act in a certain way, 2) a breach of that duty, 3) an injury resulting from that breach, and 4) damages incurred from the injury. Often, appellate cases assess an error concerning one of the first three elements. In Safeco Insurance Co. of Illinois v. Fridman (5D12-428), the Fifth District Court of Appeal reviewed two questions on remand from the Supreme Court of Florida concerning damages. The first was whether there was an error in denying the defendant insurance company’s motion for mistrial, based on improper arguments made by the injured person. The second was whether or not the trial court should have granted the insurer’s motion for remittitur.

The underlying action began when the injured driver was hit by an uninsured motorist. The injured driver underwent surgery for his injuries three years after the collision, and an expert testified during trial that he would need to have fusion spine surgery in the future. At trial, the injured person provided proof of the injuries suffered as a result of the accident with an uninsured motorist, and he argued that he was entitled to damages from his insurance company. To show the damages he lost from the accident, both past and future earnings, the injured person described his work history preceding and following the accident.

Prior to the auto accident, the injured person had been an electronics salesman for several years, earning from $800 to $1,000 a week. For two years during this period, the injured person also ran a retail marble and tile store, but he was unable to testify about how much he earned from this business. After the accident, the injured person opened a wholesale marble and tile business for 20 days, stating he closed it because he could not lift the marble as a result of the injuries. Afterwards, he worked as a salesman again, first earning between $400 to $600 a week, then $500 to $600, and by the time of trial around $1,200 a week. During trial, an expert testified that he would not be able to work after a fusion spine surgery for three to four months. The injured person testified that if he had remained in the wholesale marble and tile business, he could have made $100,000 to $200,000, based on the profit margin for a square foot of tile. No other testimony or evidence was provided to support his assessment.

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Florida licensed drivers may be initially surprised to learn who is covered under an insurance policy and when this coverage is available. A driver, depending on the terms of his or her insurance contract, may be covered when he or she drives another vehicle, like a rental car, if he or she gets in an accident while driving an automobile not specifically listed on the policy. The policy may also cover any driver of a car listed on a policy, even if the driver is not the policyholder or a named insured. In a recent Second District Court of Appeals case, State Farm Mutual Automobile Ins. Co. v. Smith (2D14-1402), the appellate court analyzed whether an automobile insurance policy extended coverage to the son of a policyholder who had an accident while driving another family’s car.

In this case, there were two automobile policies available to the driver (the main party at the center of this suit) and the passenger of the car. One policy was issued to the driver’s mother, and the other was issued to the passenger and her parents, who were the owners of the vehicle in the accident. Both policies were with the same insurance provider. The accident that formed the foundation of this litigation occurred when the driver attempted a right turn from the left lane, colliding with a car waiting for a red light at the intersection.

After actions were filed by both the driver and the passenger against each other, the driver filed for uninsured benefits under his mother’s policy. The insurance company moved for summary judgment during the litigation over this claim, arguing that the driver was not “uninsured” as defined by his mother’s policy. The trial court disagreed, eventually entering a final judgment against the insurance company after the jury found liability at trial, assigning 92% to the passenger and the owners of the car, and 8% to the driver. The jury awarded over $200,000 to the driver, but the award was later reduced to the policy limits of $150,000 under the uninsured part of the policy. The insurance company appealed the award to the driver.

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As a responsible Florida driver, you purchase the minimum coverage required by law, which is known as “no fault” insurance or Personal Injury Protection (PIP). This mandatory coverage carries a $10,000 limit that can be used for the driver’s losses, regardless of fault. While this can pay some lost wages and medical expenses, the total costs of an accident are often much greater than the coverage provided under PIP. This is especially true if the other driver involved in the accident does not have any insurance or also carries the minimum amount of coverage required by law.

According to the Florida Department of Transportation, in 2014 over 15.6 million of Florida’s residents were licensed drivers. An Insurance Research Council Study, looking at the same year, shows that 3.2 million of Florida’s drivers were uninsured, making up more than 10% of the drivers across the nation that drive without coverage. That means if you are in an accident, there is a 20% chance of having an accident with an uninsured motorist. In a serious collision, the doctors’ bills and time off from work can quickly add up to an overwhelming number that far exceeds the coverage provided by PIP. Even if the driver has insurance, his or her policy limits may be so low it would not provide much help with your expenses. This sort of driver is considered to be underinsured.

UM coverage helps pay for present and future medical expenses, future lost wages, lost wages that haven’t been paid by the no fault coverage, and other damages like pain and suffering, loss of consortium (or ability to enjoy life), and disability. So what can be done to protect yourself in the event of an accident with an uninsured or underinsured motorist?

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