Articles Posted in Car, Truck & Motorcycle Accidents

Florida law has long recognized that a car is a dangerous instrumentality. (The dangerous instrumentality doctrine was adopted in Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920).) This is based on the simple fact that a car, in the wrong hands and used improperly, is likely to cause great damage. To discourage owners from being careless in the use of their vehicles by others, Florida law holds them responsible for the negligent acts of consensual drivers. This is known as vicarious liability, or liability without fault. (Owners can also be liable under a different legal theory known as negligent entrustment. See this blog for an explanation of the theory: Florida Motor Vehicle Owners Accountable for Damages Without Driving Negligently.)

With rare exception*, vicarious liability is determined through title ownership. This proposition gained solid footing in Metzel v. Robinson, 102 So.2d 385 (Fla.1958), which established the following legal standards: (1) as a matter of law, if a person causes or permits his name to be on the title when the vehicle is acquired, he cannot contradict the title by claiming that he did not intend to be an owner at the outset; (2) as a matter of law, once that person has caused his name to be affixed to the title, he must take some affirmative action to divest himself of that interest to avoid liability; and (3) as a matter of law, relinquishing possession of and having nothing to do with the vehicle after its acquisition is not sufficient to divest that person of his legal interest. (This summary of Metzel is laid out by the 5th DCA, in Bowen v. Taylor-Christensen, 98 So.3d 136, @ 142 (Fla. 5th DCA 2012), a must-read case.)
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Florida law has long recognized that a car is a dangerous instrumentality. This is based on the simple fact that a car, in the wrong hands and used improperly, is likely to cause great damage. In consideration of this unique characteristic, two legal doctrines have developed in Florida to hold vehicle owners to account for damages resulting from the negligent operation of their vehicles by others. The two doctrines are vicarious liability and negligent entrustment.

As pertains to motor vehicles, vicarious liability has been a part of Florida jurisprudence since 1920. Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920). The doctrine makes a vehicle owner liable for damages caused by the negligent operation of his vehicle by a consensual driver. The key element of the doctrine is that the owner is liable without being at fault. While this no-fault element can be a good thing for accident victims, the doctrine has limitations. In particular, damages against the vicariously liable vehicle owner are capped by Florida Statute 324.021(9)(b)3. This means that regardless of actual damages, the vehicle owner pays no more than what is designated by statute. In many cases — for instance, those involving catastrophic injuries — actual damages will greatly exceed the statutory caps.
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In November, 2012, the Supreme Court of Florida, in Cevallos v Rideout (No. SC09-2238), issued an opinion that buried a misguided and out-dated 2009 decision by the Fourth District Court of Appeals. (Contemporaneously with its decision in Cevallos, the court issued a similar opinion in Birge v. Charron, No. SC10-1755 (Nov. 21, 2012).) The opinion the Supreme Court shot down is that a person injured in a vehicle which has struck the rear of another vehicle cannot prevail unless it is shown that the driver of the trailing vehicle was completely blameless. The 4th’s opinion was in direct conflict with decisions from various district courts of appeal in Florida. Charron v. Birge, 37 So. 3d 292 (Fla. 5th DCA 2010), Cleaveland v. Florida Power & Light, Inc., 895 So. 2d 1143, 1145 (Fla. 4th DCA 2005), Jefferies v. Amery Leasing, Inc., 698 So. 2d 368, 371 (Fla. 5th DCA 1997), Pollock v. Goldberg, 651 So. 2d 721, 722-24 (Fla. 4th DCA 1995), Johnson v. Deep South Crane Rentals, Inc., 634 So. 2d 1113 (Fla. 1st DCA 1994), and Edward M. Chadbourne, Inc. v. Van Dyke, 590 So. 2d 1023 (Fla. 1st DCA 1991).
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Fault is an essential element of proof in every Florida personal injury negligence case, including motor vehicle accident cases. To recover for losses (economic and property) and personal injuries, the complaining party must prove that his/her damages were caused by another party’s negligence.

Although evidence of who was ticketed by the investigating law enforcement officer may have bearing in pre-trial settlement discussions, the evidence is inadmissible in civil court. Moreover, for traffic infractions that require a court appearance, per Florida Statute 318.19, no contest or not guilty pleas followed by an adjudication of guilt, prevent admissibility of the adjudication in the civil trial. Finally, for some minor infractions, a guilty plea, per Florida Statute 316.650(9) cannot be used as evidence in the civil case.

In some instances a traffic court guilty plea can can be admissible in civil court to prove fault. When a traffic defendant pleads guilty to (1) Any infraction which results in a crash that causes the death of another; and (2) Any infraction which results in a crash that causes “serious bodily injury” of another as defined in s. 316.1933(1), the pleas are admissible in a civil trial. See Mackey v. Reserve Ins. Co., 349 So.2d 830 (Fla. 1st DCA 1977) (A guilty plea to one of the traffic offenses enumerated in F.S. 318.19 is admissible in civil court.)
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The only motor vehicle insurance coverages the owner of a vehicle registered in Florida must maintain are Personal Injury Protection (PIP) and Property Damage – Liability. Nothing else is required to lawfully operate a vehicle in Florida.

However, if the vehicle owner or a consensual driver of the owner’s vehicle causes an accident involving injury or death, these basic coverages will not prevent the owner from losing his drivers license and having all vehicle registrations suspended. Sections 316.066(3)(a)1 and 324.051(2)(a) Florida Statutes.

There is only one type of insurance coverage that can prevent these these things from happening: Bodily Injury Liability (a/k/a BI). Section 324.021 (7) Florida Statutes. (The Florida Department of Motor Vehicles is responsible for suspending the DL and registrations. It’s current policy is that neither action will be taken until a judgment is entered against the vehicle owner. This requires that a lawsuit be pursued to completion against the vehicle owner.)
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The primary responsibility of a plaintiff’s personal injury attorney is to maximize the client’s recovery. Typical recoverable damages include lost wages (past & future), medical expenses, and compensation for pain and suffering (a/k/a non-economic damages).

A damage element often overlooked is the diminished value of a repaired vehicle. No matter how well a repair was done, the vehicle’s value is diminished. Period. The attorney should try to recover the loss for his client. The recovery is supported by Airtech Service, Inc. v. MacDonald Construction Co., 150 So.2d 465 (Fla. 3rd DCA 1963).
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The essential parts of Florida House Bill 119, addressing Personal Injury Protection (PIP) benefits, were crafted in the closing days of the 2012 legislative session, sometimes behind closed doors, mostly without any public or committee vetting, and, of course, with undue influence from the insurance industry and not enough input from consumers. As has been widely reported, just as Governor Scott, the leading proponent of revising PIP, was lobbying legislators, United Group Underwriters, an affiliate of United Automobile Insurance Company, a leading Florida PIP carrier, gave $100,000 to his Let’s Get to Work political committee. Not surprisingly, the end result of the bill is that consumers will receive less while PIP carriers profit more.

The beat goes on….

That said, consumers and lawyers must know the changes. Here’s a brief summary of some of the important changes:

MEDICAL (unless otherwise indicated, these provisions become effective January 1, 2013):

• 14 Day Rule (Florida Statute 627.736(1)(a)1): Unless the insured receives medical care within 14 days after the motor vehicle accident from a hospital facility, emergency transport, an M.D., D.O., D.C., or D.D.S., there is no PIP coverage for any medical benefits.
• Followup medical care and services must be “consistent” with the underlying medical diagnosis provided pursuant to the services furnished within the first 14 days (F.S. 627.736(1)(a)2). Put another way, medical coverage is limited to the initial injury diagnosis.
• Medical Coverage Limited to $2500 unless “Emergency Medical Condition”: The definition of “Emergency Medical Condition” is located at F.S. 672.732(16). Only the types of medical providers listed in F.S. 627.736(1)(a)3 are allowed to determine if the injured person has sustained an “Emergency Medical Condition.” Chiropractors are not included in this list. Interestingly, if any medical provider listed in subparagraph 1 or subparagraph 2 determines that the injured person did not have an emergency medical condition, PIP benefits are limited to $2500. Chiropractors are listed in this group of medical providers.
• Massage and acupuncture no longer covered by PIP

OBTAINING PIP LEDGER (627.736(4)(j). The new statute only requires insurers to provide their insureds with PIP payment logs once litigation is commenced. This is silly; PIP carriers should be required to produce logs at all reasonable times including presuit. Some litigation is commenced because the insured, through no fault of his own, does not know what benefits have been paid. A ledger avoids this situation. Also, logs are needed to help resolve personal injury claims. It lets both sides know how much the amount of outstanding medical expenses. Even though current law, Southern Group Indemnity, Inc. v. Humanitary Health Care, Inc., 975 So.2d 1247 (Fla. 3rd DCA 2008), does not require carriers to provide ledgers presuit, they typically do as a courtesy. Let’s hope the revised PIP statute does not put an end to this courtesy.
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