Articles Posted in Car, Truck & Motorcycle Accidents

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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Florida adheres to the dangerous instrumentality doctrine. The doctrine stands for the proposition that since motor vehicles are dangerous instrumentalities, their owners should be held liable for the negligent operation of the vehicles by persons to whom they have been entrusted. The doctrine has been a part of Florida law since 1920. Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920).

While Florida is one of only a handful of states to apply the doctrine, its impact has been watered down by arbitrary damage caps created by the Florida Legislature. The caps, contained in Florida Statute 324.021(9)(b)3, read as follows:

The owner who is a natural person and loans a motor vehicle to any permissive user shall be liable for the operation of the vehicle or the acts of the operator in connection therewith only up to $100,000 per person and up to $300,000 per incident for bodily injury and up to $50,000 for property damage. If the permissive user of the motor vehicle is uninsured or has any insurance with limits less than $500,000 combined property damage and bodily injury liability, the owner shall be liable for up to an additional $500,000 in economic damages only arising out of the use of the motor vehicle. The additional specified liability of the owner for economic damages shall be reduced by amounts actually recovered from the permissive user and from any insurance or self-insurance covering the permissive user. Nothing in this subparagraph shall be construed to affect the liability of the owner for his or her own negligence.

The imposition of owner liability is difficult to overcome. Consider these case examples:

• Susco Car Rental Sys. v. Leonard, 112 So.2d at 835, negligence of a person not allowed to drive bound the owner.
• Bowman v. Atlanta Baggage & Cab Co., 173 F. Supp. 282 (N.D. Fla. 1969), liability imposed even where driver exceeded stated area limitations.
• Tillman Chevrolet co. v. Moore, 175 So. 2d 794 (Fla. 1st DCA 1965), cert. discharged, 184 So. 2d 175 (Fla. 1986), owner liable even though accident caused by a hitchiker allowed to drive by a customer convicted of stealing the car.
• Ivey v. National Fisheries, Inc. 215 So. 2d 74 (Fla. 3d DCA 1968), employer who permitted a truck driver to use vehicle for delivery only between home and work liable for driving by drinking buddy given truck after worker stopped at bar and became intoxicated.

Rarer is the situation where owner liability is not imposed. Consider:

• The vehicle has been stolen. Read the Susco case;
• The vehicle has been used without authority by the employee of a facility where the vehicle has been left for repairs. Castillo v. Bickley, 363 So.2d 792 (Fla. 1978);
• The title is held for security purposes, as in a conditional sale; or,
• Where the title is only intended to be held temporarily, as where a transfer of title is in the process but not completed.

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To promote the gathering of facts surrounding motor vehicle accidents, the Florida Legislature has devised a number of statutes each with the essential character of compelling certain individuals to disclose information to law enforcement personnel.

• Florida Statute 316.066(1) requires a driver to make a report when involved in a crash where there is bodily injury, death, or damage to a vehicle
• 361.062(1) requires a driver to give his or her information to a police officer upon request when a crash results in injury or death

Now you have it, now you don’t.

This is a disappointment every plaintiff’s personal injury lawyer experiences when learning that a wrongdoer’s bodily injury insurance coverage is negated by a “Named Driver Exclusion.” Hope is crushed like the vehicle in this blog.

The declarations page of a motor vehicle insurance policy will list the primary insured and other named insureds, usually family members with drivers licenses.

Bodily injury, or BI, coverage under the policy is protection, to the extent of the coverage limit, for personal injuries and economic losses sustained by third parties through an insured’s negligence. Coverage information will also be listed in the declarations page. Since BI is not mandatory, a first glance at the dec page with BI coverage provides some consolation to those harmed by a wrongdoer insured’s negligence.
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When motor vehicle accidents cause serious personal injuries, it is not uncommon for PIP benefits to exhaust before all necessary medical care has been received. When health insurance carrying a large deductible is available, does the amount paid by PIP count against the deductible?

The likely answer is Yes. However, the final answer depends on language in the health insurance policy.

A health insurance policy is a contract. Unless contravened by public policy – statutes and case law – its terms control the duties and responsibilities of the parties to the contract. If the language of the contract is vague and confusing, or the contract is otherwise silent on the subject, the insured should win the issue.

We are not aware of any public policy pronouncements on the subject of this blog. Accordingly, the outcome depends on policy language.

Health insurance policies contain many different sections, although the sections where the language concerning this issue are most likely to be found are the patient responsibility section and the coordination of benefits section.

The insurance carrier may argue that because PIP payments do not equal payments from the insured, the deductible has not been satisfied. This argument is a red herring. It is not a matter of the insured being out-of-pocket, only that the billed amount (or “allowed amount” – see below) meets the deductible. Our position is that the deductible calculation should be the same whether the insured paid the bills, owes the money, or the bills were paid by PIP or some other source, perhaps another health insurance carrier.
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49 U.S.C. Sec. 30106 (the “Graves Amendment”) shields those “engaged in the trade or business of renting or leasing motor vehicles [when] there is no negligence or criminal wrongdoing on the part of the owner” from vicarious liability for the rented or leased vehicle. Sec. 30106(a).

Given this language, does the Graves Amendment shield car dealerships from vicarious liability for accidents involving loaner vehicles? The one decision discussing the Graves Amendment vis-a-vis free service loaners, Zisersky v. Life Quality Motor Sales, Inc., 866 N.Y.S. 2d 501 (N.Y.. Sup. Ct. 2008), says No. Correctly, in our view, the court concluded that a loaner is neither a “lease” nor a “rental.”

The Graves Amendment has been used to shield rental agencies from vicarious liability for serious personal injuries caused by the drivers of their vehicles. We take issue with the Graves Amendment being applied under any circumstances, yet, sadly, it seems to be carrying the day in courts of most states with regard to rental agencies … at great harm to many individuals.

For example, our office is currently involved in a case where the negligent renter of an Enterprise vehicle caused it to flip over numerous times on I-75 near Gainesville, Florida. Enterprise is hiding behind the Graves Amendment to deny needed compensation to our client, an innocent passenger who was airlifted to Shands Hospital.
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