Articles Posted in Car, Truck & Motorcycle Accidents

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Florida insurance adjusters often argue that vehicles sustaining damage costing in excess of 80% of fair market value (or replacement cost) to repair, must be declared a total loss. The argument is made with such conviction that most people, including many attorneys, believe it is true. It is not true. It is an urban myth.

The truth is that insurance companies must pay for repairs costing up to 100% of fair market value. (Florida Statute 319.30(3)(a)2.)

For many owners, repairing makes more sense than replacing. This is especially true for owners who owe little or no money on their vehicle.

Replacement usually requires owners to lay out more money than they receive as fair market value from the insurance companies. The main reason why is because insurance companies use databases that understate fair market value. Thus, the carriers try to pay less than the actual replacement cost.
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Personal Injury Protection (PIP) (also known as No-Fault Insurance) is one of the few coverages in Florida that is mandatory in most motor vehicle insurance policies. (See this blog about “Full Coverage.”) Its primary function is to pay the medical expenses and lost wages of those individuals injured in motor vehicle accidents. (Which individuals are covered is another subject and beyond the scope of this blog.) However, unbeknownst to many lawyers and lay people alike, the PIP statute also provides for the payment of “Death Benefits.” (See Florida Statute Section 627.736(1)(c) (2008).)

The maximum dollar amount of coverage available under PIP is $10,000. Of this $10,000, only $5,000 is available for death benefits under Section 627.736(1)(c).
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Disabled commercial vehicles are hazardous to motorists.

Rightfully, much blame for traffic accidents is placed on trailing/approaching vehicle drivers. However, commercials vehicles disabled in lanes of traffic often contribute to serious and fatal accidents through little to no fault of approaching drivers. Surprisingly, many of these accidents occur in broad daylight on straight roadways. (More obvious contributing factors include nightime and foggy conditions, and curves in the road.)

The U.S. Department of Transportation Federal Motor Carrier Safety Administration has created rules and regulations designed to reduce the danger. For commercial vehicles (buses and trucks that have a gross vehicle weight rating (GVWR) greater than 10,000 pounds. U.S. DOT Rule 571.125 S3) stopped upon the traveled portion of the highway for any cause other than a necessary traffic stop, Rule 392.22 requires the following:

  • The driver shall immediately activate the vehicular hazard warning signal flashers and contiune the flashing until the driver places the warning devices required by other parts of 392.22. (Hazard warning signals are [L]amps that flash simultaneously to the front and rear, on both the right and left sides of a commercial motor vehicle, to indicate to an approaching driver the presence of a vehicular hazard.” Rule 393.5. The hazard warning signals “shall operate independently of the ignition or equivalent switch….” Rule 393.19.)
  • The driver shall, as soon as possible, but in any event within 10 minutes, place the following warning devices beside and behind the vehicle in the manner outlined in Rule 392.22(b)(1)(i-iii), (b((2), (b)(2)(iv), and (b)(2)(v): Three bidirectional emergency reflective triangles or at least 6 fusees or 3 liquid-burning flares. See Rule 393.95. (In Section 571.125 S2, the U.S. Department of Transportation advises that the purpose of these standardized warning devices “is to reduce deaths and injuries due to rear end collisions between moving traffic and disabled vehicles.)

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Anyone who lives in South Florida knows that the population of road bikers has exploded in recent years. With Lance Armstrong’s exploits and the availability of relatively inexpensive high performance bicycles, it is not uncommon, especially on weekend mornings, to see a countless number of road bikers of all shapes and sizes challenging themselves in their spandex shorts and colorful helmets on the streets and highways.

Even without having to contend with cars and trucks, road biking is a dangerous activity. Potholes, debris, and other bicycles can send a rider to the unforgiving cement in the blink of an eye. Eyes on the road and hands on the handlebars is Rule #1.

South Florida has experienced a rash of highly publicized serious and sometimes fatal motor vehicle vs. bicycle accidents in recent years. With the volume of traffic, motor vehicles and bicycles, on the roadways, one can safely assume that the frequency of such accidents far exceeds the publicized accounts.

This blog will address the points of Florida law dealing with the rights and obligations of road bikers on our roads.

The primary Florida Statute dealing with these issues is 316.2065. Section 316.2065 addresses everything from helmet requirements to carrying children, much of which is beyond the scope of this blog, making it important reading for all bike enthusiasts.

Section (1) of 316.2065 contains the sweeping pronouncement that bicyclists and motor vehicle operators have the same rights and duties. One might conclude this means that bicycle riders can take up entire lanes of traffic without regard to the conditions. This conclusion would be far from correct.

Further in Section (1) is language that qualifies the broad pronouncement, while Section (5)(a) provides the simple details of the limitations. (5)(a) instructs that bicycle riders who are unable to to travel at the normal speed under the conditions at the time “shall” ride as close as practicable to the right-hand curb or edge of the roadway. As the typical lone rider travels at an average of 14-18 mph, and a pack (or pelaton) of strong riders around 5 mph faster than that, most road bikers will always be traveling slower than the speed limit. This means that most of the time, most riders should be riding at the edge of the roadway.

There are exceptions to this rule, also contained within Section (5)(a). Under the following circumstances, riders may leave the right-hand curb of the roadway:

  • When overtaking another bicycle or vehicle proceeding in the same direction
  • when preparing to make a left turn (see, also, 316.151(c))
  • To avoid any condition, such as parked cars, debris in the roadway, and a pedestrian.

Also included as an exception within section (5)(a) is one relating to roads of “substandard-width,” meaning roads not wide enough to safely accomodate a bicycle and a vehicle traveling side by side. For bikers, motorists, law enforcement officers, and the courts, this provision may be the most controversial within Florida Statute 316.2065.

What is a road of “substandard-width?” Arguably, the answer is any road that is less than 14 feet wide.

The Florida Department of Transportation’s Manual of Uniform Minimum Standards recommends an outside lane width of 14 feet as the “minimum width that will allow passenger cars to safely pass bicyclists within a single lane,” i.e., without the need for passing motorists to use part of the next lane. A typical passenger vehicle is from 5.5 feet (car) to 7 feet (SUV) wide. This means that you need at least 8 feet of lane width for a car. (That’s the narrowest parking lane width allowed).

Florida Statute 316.083 states that motorists must pass bicycles at least 3 feet away. Add another 3 feet for the width of a bicycle and its rider, and 14 feet (8 + 3 + 3) is the narrowist width a road should be for bicyclists and automobiles to safely travel side by side. (This minimum does not account for commercial vehicles and utility trailers which are 8.5 ft wide and can have mirrors extending to 10 feet. Those vehicles MUST use part of another lane to pass safely.)
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Florida’s maze of motor vehicle insurance laws can be difficult to comprehend.

A case in point: Personal Injury Protection (PIP) and Property Damage – Liability are the only required coverages for an owner to lawfully operate his/her vehicle on Florida’s streets and highways. (PIP pays 80% of medical bills and 60% of lost wages for the insured up to $10,000, while Property Damage – Liability pays to repair or replace the other owner’s motor vehicle.) With these coverages, the vehicle owner is able to purchase a license plate and a vehicle registration.

Surprisingly, however, in the event of a motor vehicle accident involving injury or death, having the minimum mandatory coverages will not prevent the at-fault party from having her drivers license and all vehicle registrations from being suspended. Sections 316.066(3)(a)1 and 324.051(2)(a) Florida Statutes.

The type of insurance coverage that will prevent the suspensiong is Bodily Injury (a/k/a liability insurance) in the minimum amounts of $10,000 per person/$20,000 per accident. Section 324.021 (7) Florida Statutes.
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  • Contact fire rescue (for injuries) and the police from the accident scene.
  • Take photographs of the vehicles – damage and location.
  • Photograph visible injuries.
  • Obtain names and contact information of independent eyewitnesses.
  • Cooperate with law enforcement. Describe the accident and provide your motor vehicle insurance information.
  • Before leaving the scene, obtain a copy of the short form police report or other police report identifying information.
  • If your vehicle must be towed from the accident, determine by whom and to where. Remove personal belongings before the vehicle is towed away.
  • If necessary, allow fire rescue to transport you to the hospital.
  • Provide fire rescue and the hospital with your vehicle and health insurance information.(The “PIP” coverage under your own insurance policy is primarily responsible for paying for a limited dollar amount of your medical care.)
  • Report the accident to your insurance company.
  • Obtain claim number from your insurance carrier.
  • If necessary, seek follow up medical care.
  • Provide medical providers with your vehicle and health insurance information.
  • The at-fault party’s Florida insurance company should pay for your vehicle damage. In some instances, it is easier to have your own insurance company handle the repairs. However, not every insurance policy covers the cost of such repairs. It is not required coverage. Check your policy to see if you have “Collision” coverage. (Be careful of what you say to the at-fault party’s insurance company. The company will be looking for ways to deny your claim.)
  • If your injuries are serious, contact a personal injury lawyer as soon as possible. The lawyer will handle a myriad of issues associated with your accident, including medical matters, insurance coverage, vehicle repair or total loss payments, etc.

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Unlike prior PIP statutes that applied the “usual and customary” standard to determine allowable charges for medical services, Florida’s 2008 version (627.736), mostly mandates that allowable charges are 200% of prospective payments for the same services under Medicare Parts A & B. (Main exceptions: emergency transportation and emergency hospital services.)

For the most part, the Medicare tie-in reduces the amounts payable to medical providers, and because the PIP statute also explicity prohibits medical providers from balance billing beyond the 20% remaining after PIP’s 80% payment of allowable charges (627.736(5)(a)5.), the Plaintiff’s (patient) out-of-pocket medical expenses are likewise reduced. No longer may a medical provider seek full reimbursement from the patient for charges unpaid after the receipt of PIP payments. Doing so under the 2008 PIP statute is an actionable offense.
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law books.jpgFlorida Statues may allow PIP carriers to conduct medical examinations and perform paper reviews, but no authority, including the statute itself, grants PIP carriers license to reference those procedures as an “IME,” “Independent Medical Examination,” or a “Peer Review.” In short, PIP carriers have created the terms out of whole cloth to mislead juries.

The doctors are not independent or conducting peer reviews. (Merriam-Webster Dictionary’s only definition of “peer review” is: a process by which something proposed (as for research or publication) is evaluated by a group of experts in the appropriate field.) They are hired by the defense and paid by the defense. If the jury hears that doctors are “independent” or a “Peer Review,” the jury may be confused into believing or thinking the doctors were appointed by the court, a governing body, or with the approval of the Plaintiff or the Plaintiff’s attorney.

When preparing for trial, the Plaintiff’s attorney should consider moving the court for an In Limine order preventing the insurance company from perpetuating the falsehood.
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A well-established common law principle in Florida is that motor vehicles are “dangerous instrumentalities.” Southern Cotton Oil Co. v. Anderson, 86 So. 629 (Fla. 1920). In 1941, the Florida Supreme Court held that because the use of a dangerous instrumentality involves such a high degree of risk of serious injury or death, whoever deals in such instrumentalities must exercise the “highest degree of care.” Skinner v. Ochiltree, 5 So.2d 605 (1941). This decree is consistent with the court’s opinion that “as the risk grows greater, so does the duty, because the risk to be perceived defines the duty that must be undertaken.” McCain v. Florida Power Corp., 593 So.2d 500 (Fla. 1992).

Until 2005, this longstanding and reasonable principle of law applied to both individual private vehicle owners and billion dollar rental car agencies alike. However, with the passage into law of the Graves Amendment, the U.S. Congress and the Bush Administration (George W. Bush), allowed rental car agencies across the country to escape liability for serious personal injuries caused by their rental vehicles.

The constitutionality of the law is being challenged in courts across the nation. One of the main arguments in opposition to the federal law is that the individual states should be allowed to create laws that effect its own residents. The constitutionality issue will ultimately be decided by the U.S. Supreme Court.

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law books.jpgPersonal Injury Protection (PIP) insurance is mandatory in Florida for owners of operational motor vehicles and usually provides coverage up to $10,000 for medical benefits and lost wages. In many instances, the coverage will extend to other individuals besides just the owner of the vehicle.

After choosing a carrier, the vehicle owner must complete an insurance application to obtain the coverage. Most applications require that all drivers residing in a household be listed. The purpose of this requirement is for the insurance company to be able to properly assess its risk to determine the appropriate premium (i.e., cost of the policy).

Section 627.409 Florida Statutes gives the insurer the right to deny coverage if a misrepresentation in the insurance application is: (1) fraudulent; (2) material to the risk being assumed; or (3) the insurer in good faith either would not have issued the policy or would have done so only on different terms had the insurer known the facts.

Most people would agree that an insurance company should be allowed to deny coverage to an undisclosed driver injured in an accident while driving the covered vehicle. Quite simply, the carrier should not be required to provide coverage to someone on whose behalf an insurance premium was not paid. A more problematic scenario involves the question of coverage for a listed driver injured in an accident while driving the covered vehicle, where the carrier learns that an unlisted listed driver also resides in the household. Regretably, the trend in Florida seems to be towards allowing carriers to deny coverage to the disclosed driver. See United Auto. Ins. v. Salgado , No. 3D07-461 (Fla. App. 8/5/2009) (Fla. App., 2009).
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