Car, Truck & Motorcycle Accidents

June 8, 2012

Vehicle Ownership and Florida’s Dangerous Instrumentality Doctrine

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.

May 17, 2012

Limited Application of Florida’s Motor Vehicle Accident/Crash Report Privilege

by Jeffrey P. Gale, P.A.

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

March 12, 2012

New Florida PIP Law (Effective 1/1/13) Hammers Consumers

by Jeffrey P. Gale, P.A.

For those who think that all politicians are alike, that it doesn’t matter who is elected, think again. One need only look at what happened in the Florida legislature on Friday, March 9, 2012, to debunk the notion.

Tea-party darling Florida Governor Rick Scott and his right-wing Republican cohorts rammed through an anti-consumer, pro-insurance industry motor vehicle insurance law to rival any in the nation. It is so anti-consumer that even 8 Republican senators voted against it. Unfortunately, the bill passed in the Florida Senate by one vote.

The new law, effective January 1, 2013, deals with PIP (Personal Injury Protection) insurance. (Here’s a link to the law, House Bill 119.)

PIP is a form of insurance that covers medical and lost wages arising out of motor vehicle accidents. The current PIP law covers a total of $10,000 in medical expenses and lost wages subject to a deductible, if any, chosen by the policy holder. Whether and how much is paid in medical expenses is based on the reasonableness and necessity of the medical care.

The new law adds more hurdles to obtaining the full $10,000 in medical coverage.

If an insured fails to seek medical treatment within 14 days of the accident, PIP will not pay any medical expenses. None. It is not unusual for injuries to manifest themselves worthy of medical care more than 14 days after an accident. It is also not unusual for people with real injuries but busy schedules to need more than 14 days to obtain medical care. Factor in the difficulty of obtaining an appointment with a doctor and we anticipate that this provision will eliminate coverage for many policy holders.
Unless the medical treatment is for an “Emergency Medical Condition,” PIP payments will be limited to $2,500. (EMC is defined in the new legislation as: (a) Serious jeopardy to patient health; (b) Serious impairment to bodily function; (c) Serious dysfunction of any bodily organ or part.) This provision will likely spawn significant litigation from medical providers, especially for hospital emergency room services. Nonetheless, it is clearly a high standard that will reduce PIP payments in most cases.

Undoubtedly, the overall impact of the legislation will be to reduce PIP medical payments. Ironically, the legislation does not impose a mandatory reduction in insurance premiums.

Profits over people. And the beat goes on….
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March 9, 2012

“Named Driver Exclusion” is Valid in Florida

by Jeffrey P. Gale, P.A.

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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March 5, 2012

Florida PIP Insurance Payments Satisfying Health Insurance Deductible

by Jeffrey P. Gale, P.A.

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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February 16, 2012

Graves Amendment Does not Apply to Loaner Vehicles

by Jeffrey P. Gale, P.A.

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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September 19, 2011

Florida Automobile Insurance Policies – Classes & Terms

by Jeffrey P. Gale, P.A.

Typically, Florida automobile insurance policies recognize two classes of insureds. Mullis v. State Farm Mut. Auto. Ins. Co., 252 So. 2d 229, 238. (Fla. 1971). Class I insureds are named insureds, usually the owner of the vehicle, and their resident relatives. Travelers Ins. Co. v. Warren, 678 So. 2d 324, 326 n.2 (Fla. 1996) (citing Mullis, 252 So. 2d at 238; Quirk v. Anthony, 563 So. 2d 710, 713 n.2 (Fla. 2d DCA 1990), approved, 583 So. 2d 1026 (Fla. 1991); Florida Statute 627.732(4). Class II insureds are lawful occupants of an insured vehicle who are not named insureds or resident relatives of named insureds; essentially, they are “third-party beneficiaries to the named insureds’ policy. Id. Class II insureds “are insured only because they are drivers or passengers in an insured vehicle with the consent of the named insured.” Florida Farm Bureau Cas. Co. v. Hurtado, 587 So. 2d 1314, 1317 (Fla. 1991) (citations omitted).
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September 11, 2011

Vehicle Owners – Other Than Rental Agencies – Vicariously Liable Under Florida Law

by Jeffrey P. Gale, P.A.

Owners of motor vehicles registered and operated in Florida are vicariously liable for damages caused by their vehicles while operated by a consensual driver. Car rental companies are exempt from this rule.

This form of strict liability is derived from Florida’s Dangerous Instrumentality Doctrine, adopted in Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920), which is based on the proposition that motor vehicles operated on public highways are dangerous instruments and the owners who entrust them to others should be liable for injury to others caused by negligence of the persons to whom the instrumentalities are entrusted.

Until 2005, when the Bush Administration and the Republican Congress carved out an exemption, through the Graves Amendment (49 U.S.C. Sec. 30106), the doctrine applied to the car rental industry. To this writer, the exemption is dangerous because it removes nearly every motivation the industry might have to know who is driving its vehicles. (See this blog for an example of what I mean: Profits Over People – The Willful Ignorance of Florida Car Rental Companies.)
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September 6, 2011

Florida Legislature Leaves Intact Much of the Crashworthiness (D’Amario) Doctrine

by Jeffrey P. Gale, P.A.

I have blogged here in the past that the 2011 Republican-controlled Florida Legislature seemed bound and determined to gut one of the state’s most important laws at holding vehicle manufacturers accountable for producing defective products. Although some within the legislature may have had this outcome as a goal, reasonable minds prevailed in the 2011 legislative session to the extent that the legislative body’s modifications did not eviscerate the law as many within the civil justice community had feared.

The principle of law under discussion is the crashworthiness doctrine. It stands for the proposition that vehicle manufacturers can be liable for harm caused by unsafe vehicles, even if the vehicle was put to the test by another negligent party. Kidron v. Carmona, 665 So. 2d 289 (Fla. 3rd DCA 1995) (following Larson v. General Motors, 391 F. 2d 495 (8th Cir. 1968)).

The principle was later bolstered by the holding in D’Amario v. Ford, 806 So. 2d 424 (Fla. 2001), which limited the use of comparative fault in crashworthiness cases.

In D’Amario a minor was the passenger in a vehicle that struck a tree. A fire began that ended in an explosion, causing the minor to lose three limbs and suffering burns to much of his body. The fire resulted from a defective relay switch manufactured by Ford.

The minor and his mother sued Ford for the damages resulting from the defective switch. They did not seek to recover compensation from Ford for injuries from striking the tree.

At trial, Ford sought to introduce evidence as to the cause of the initial accident, which was that another minor was intoxicated and negligently drove the vehicle into the tree. The plaintiffs (mother and son) argued that this evidence was irrelevant to the claim for damages caused by the defective switch. The trial court admitted the evidence, meaning that it allowed the jury to hear the evidence. The jury returned a verdict for Ford.

The case was appealed and made its way to the Florida Supreme Court. The court considered cases from other states and concluded that the majority view in the nation was that such impact evidence was relevant. Nevertheless, the Florida Supreme Court adopted the minority view, ruling in favor of the catastrophically injured minor and his mother.

Before D’Amario, in crashworthiness cases jurors were allowed to hear evidence of the driver’s fault and apportion damages against the driver. This tended to direct the focus of responsibility onto the negligent driver and take it off the manufacturer whose defective product caused the enhanced injury. D’Amario eliminated the chance of such evidence distracting, confusing, or angering juries.

Not surprisingly, automobile manufacturers have been trying for ten years to reverse D’Amario. Many thought their goal would be accomplished in the 2011 legislative session. Although a measure was proposed that would have satisfied the manufacturers, amendments filed on the Senate Floor by Senator David Simmons (R) and passed by both chambers of the Legislature prevented the crashworthiness doctrine from being eliminated altogether in Florida. The bill that passed, which does modify D’Amario, revised Florida Statute 768.81.

The revised 768.81(3)(b) provides as follows:

In a products liability action alleging that injuries received by a claimant in an accident were enhanced by a defective product, the trier of fact shall consider the fault of all persons who contributed to the accident when apportioning fault between or among them. The jury shall be appropriately instructed by the trial judge on the apportionment of fault in products liability actions where there are allegations that the injuries received by the claimant in an accident were enhanced by a defective product. The rules of evidence apply to these actions.

August 27, 2011

Strategies for Handling Florida Personal Injury Claims Against Drunk (DUI) Drivers

by Jeffrey P. Gale, P.A.

Personal injury cases against drunk drivers present positive opportunities for Plaintiff lawyers to seek punitive damages and recover enhanced compensatory damages (e.g., pain & suffering; lost wages).

Punitive Damages

The procedure for claiming punitive damages and the standards for holding a defendant liable for punitive damages are set forth in Florida Statute 768.72.

A claim for punitive damages may not be plead in the initial complaint. Rather, the Plaintiff must seek leave of court to amend the complaint to claim punitive damages. The judge should allow the amendment if evidence in the record or proferred by the Plaintiff provides a reasonable basis for recovery of such damages. Simeon, Inc. v. Cox, 671 So.2d 158 (Fla.1996) and F.S. 768.72(1). Contrary to the proposition often put forward by Defendants, the statute does not require an evidentiary hearing to permit the amendment. Pursuant to section 768.72, a proffer of evidence can support a trial court’s determination. Strasser v. Yalamanchi, 677 So.2d 455 (Fla. 2d DCA 1981).

768.72 says this about what must be shown to establish liability:

(2) A defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence. As used in this section, the term:

(a) “Intentional misconduct” means that the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage.

(b) “Gross negligence” means that the defendant’s conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.