Car, Truck & Motorcycle Accidents

August 27, 2011

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

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.

August 24, 2011

Florida’s Dangerous Instrumentality Doctrine and Motor Vehicles

by Jeffrey P. Gale, P.A.

Florida’s dangerous instrumentality doctrine imposes vicarious responsibility upon the owner or other possessor of a motor vehicle who voluntarily entrusts it to another for any subsequent negligent operation which injures a member of the traveling public. Jackson v. Hertz Corporation, 590 So.2d 929, 937. See Kraemer v. General Motors Acceptance Corp., 572 So.2d 1363 (Fla. 1990); Susco Car Rental Sys. v. Leonard, 112 So.2d 832 (Fla. 1959); Lynch v. Walker, 159 Fla. 188, 31 So.2d 268 (1947); Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920); Anderson v. Southern Cotton Oil Co., 73 Fla. 432, 74 So. 975 (1917).
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May 30, 2011

Compulsory Medical Exam – Florida Uninsured Motorist (UM) Insureds Beware!

by Jeffrey P. Gale, P.A.

Uninsured Motorist (UM) coverage is 1st party insurance maintained for the benefit of individuals injured by uninsured motorists.

See these blogs:

An insurance policy is a contract. Unless preempted by a statute or case law, the terms of the policy determine the rights and responsibilities of the parties to the contract, namely the insurer and the insured.

A common policy requirement is for the insured to submit to what is called a Compulsory Medical Examination (CME). A CME is where the insured, who is seeking compensation under the policy for an injury or injuries, is examined by a doctor selected by the insurance company. When requested by the insurer, submitting to the CME is a condition precedent to receiving benefits under the policy, meaning that the insurance company can deny benefits to the insured for failing to attend the CME.

Disputes have arisen between insurer and insured over what is allowed by the CME provision. How frequently may the insurer force the insured to attend CMEs? How far can the carrier make the insured travel to attend the CME? Is there limit on the type of doctor who may perform the CME?
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May 22, 2011

Defective Design – Motor Vehicle Airbags

by Jeffrey P. Gale, P.A.

Inflating airbags can cause serious harm or death. The damage occurs when the passenger’s head is struck by the airbag, which can travel at speeds up to 200 mph, before it has fully inflated.

A vehicle’s “occupant protection system” (OPS) consists of airbags, belt/shoulder restraints, and seat tracks. If the system is designed properly, occupants should not be harmed by deploying airbags. Instead of the head being struck by the airbag during deployment, the head should be cushioned by the fully deployed airbag. Two entirely different dynamics… and often the difference between life and death.

When a vehicle strikes an object, the human body continues to move forward at the pre-crash speed of the vehicle until it is restrained by a seatbelt/shoulder harness or comes into contact with the airbag, windshield, or instrument panel. The one factor common to all persons severely injured or killed by an airbag is that they are very close to the airbag at the time of deployment. A properly designed system prevents this from happening.

Seat tracking determines how far forward seats are able to be situated. If located too close to the airbag, the inflating airbag will impact the head before it has fully deployed. The solution to this problem is for manufacturers to limit how far forward seats can move on the track. When designing this aspect of the OPS, manufacturers must assume that the occupants will have their seats fully forward.

The other consideration to prevent occupants from being too close to airbags during deployment, is the seatbelt/shoulder harness system. Shoulder harness pre-tensioning should limit the body from moving forward into the deployment zone.
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May 17, 2011

Florida 4th in the Nation in Number of Uninsured Vehicles

by Jeffrey P. Gale, P.A.

Nationwide, roughly one in seven (13.8%) drivers are not covered by liability insurance and are therefore uninsured. Florida is tied in fourth place with Tennessee and Oklahoma at 24% with the highest percentage of uninsured drivers.

Part of Florida’s numbers are attributable to its motor vehicle insurance laws. Liability insurance is not required to operate a vehicle lawfully on Florida’s streets and highways. The coverage is optional and a premium will be charged to purchase it.

The only coverages that are required to obtain a vehicle registration and, thus, operate a vehicle lawfully, are Personal Injury Protection (PIP) and Property Damage – Liability. (However, in the event of an accident resulting in death or personal injury, if the uninsured motorcyclist or car/truck owner with only PIP/PD is charged with causing the accident, his/her drivers license and all vehicle registrations will be suspended. Sections 316.066(3)(a)1 and 324.051(2)(a) of Florida’s Statutes.) Neither coverage compensates the victim of an at-fault party’s negligence for personal injuries and economic losses.

Little can be done to prevent an accident caused by another person’s fault. However, safeguards can be taken to protect against the one in four chance of finding yourself without insurance coverage to compensate for serious personal injuries and economic losses. The answer is Uninsured Motorist/Underinsured Motorist Coverage. (Florida Statute 627.727.)
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May 9, 2011

Florida Motor Vehicle Insurance Law: What is Stacked Coverage?

by Jeffrey P. Gale, P.A.

Stacking coverage is one of the most misunderstood areas of Florida’s motor vehicle insurance laws. The goal of this blog is to help clear up the confusion.

Stacked coverage is a type of coverage that is available within the broader type of coverage known as uninsured/underinsured motorist (UM/UIM) insurance. Neither coverage is mandatory under Florida law.

In Florida, the only mandatory coverages are Personal Injury Protection (PIP) and Property Damage – Liability. Every other type of coverage is optional.

One type of optional coverage is Bodily Injury, or BI. BI coverage pays for personal injuries, death, and economic losses caused by the insured’s negligence. Because an additional premium is charged for BI coverage, it is not purchased by every insured.

Uninsured/Underinsured coverage protects against the negligent motorist who does not have BI coverage – UM takes its place – or whose BI coverage limits are not sufficient to cover the losses – UIM. In other words, it performs for the insured (the person who has been damaged) as the at-fault party’s BI coverage otherwise would have.

Whenever BI coverage is purchased, UM/UIM will be included in the policy unless waived in writing by the insured. Like BI, it is not mandatory and a premium will be charged for the coverage.

Stacked coverage is an optional type of coverage that is available with the purchase of UM/UIM coverage. Like UM/UIM, stacked coverage will be included in the policy unless waived in writing by the insured.
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April 24, 2011

Florida’s Dangerous Instrumentality Law – Tractor/Trailer Rigs

by Jeffrey P. Gale, P.A.

Adopted in 1920, Florida’s dangerous instrumentality doctrine imposes strict vicarious liability upon the owner of a motor vehicle who voluntarily entrusts that motor vehicle to an individual whose negligent operation causes damage to another. See Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 468, 86 So. 629, 637 (1920). As expressed in Southern Cotton Oil:

[O]ne who authorizes and permits an instrumentality that is peculiarly dangerous in its operation to be used by another on the public highway is liable in damages for injuries to third persons caused by the negligent operation of such instrumentality on the highway by one so authorized by the owner.

Over the years, the doctrine has been applied to golf carts, trucks, buses, tow-motors and other motorized vehicles. Meister v. Fisher, 462 So. 2d 1071 (Fla: Supreme Court 1984); See, e.g., Eagle Stevedores, Inc. v. Thomas, 145 So.2d 551 (Fla. 3d DCA 1962).

Does the doctrine apply to trailers that make up the semi, tractor-trailer rigs so common to our highways? To the surprise of many, including some lawyers, the answer is No. See Saullo v. Douglas, 957 So.2d 80 (Fla. 5th DCA 2007); Pullman v. Johnson, 543 So.2d 231 (Fla. 4th DCA 1987); Edwards v. ABC Transportation Co., 616 So.2d 142 (Fla. 5th DCA 1993).
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April 22, 2011

Instructions for Florida Car/Truck/Motorcycle Accident Victims

by Jeffrey P. Gale, P.A.

Motor vehicle accident victims would be well advised to follow these basic suggestions, many of which are applicable to other types of accidents:

DO NOT give any statements, in writing or over the phone, to anyone about your car accident or injuries. This can even apply to your own insurance company, although caution must be taken here to avoid giving your insurance company an excuse for denying coverage. This condition is one reason why it is important to consult with a lawyer about your case as soon as possible. Car accident cases present countless landmines to those who are unaware of them.
Take photographs of your car before it is repaired. Save and give the photographs to your lawyer. If you are unable to take photographs, your lawyer should get it done.

April 21, 2011

Supreme Court of Florida Gives Free Ride to Car Rental Agencies

by Jeffrey P. Gale, P.A.

By its decision in Vargas v. Enterprise Leasing Company (Case no.: SC08-2269; opinion issued on April 21, 2011), the Supreme Court of Florida has declared that car rental agencies, unlike regular citizens and other businesses, are not vicariously liable for accidents involving the vehicles they own. Score one for big business!

Rafael Vargas was rear-ended and injured in his car by a rental vehicle owned by Enterprise Leasing Company. Vargas sued Enterprise for personal injuries on the theory of vicarious liability. The trial court dismissed the case and the Fourth District Court of Appeal affirmed the judge’s decision, inviting the Supreme Court to answer a question certified to be of great public importance:

DOES THE GRAVES AMENDMENT, 49 U.S.C. § 30106, PREEMPT SECTION 324.021(9)(b)2, FLORIDA STATUTES (2007)?

The Supreme Court accepted the invitation and answered the certified question in the affirmative.

At the urging of the Bush Administration, in 2005 the Republican-controlled Congress enacted the Graves Amendment. Proponents of the federal law sought to immunize rental agencies from laws in the various states which held them financially responsible for injury and death caused by their vehicles. One of those laws is/was Florida Statute Section 324.021(9)(b)2. Opponents argued that the Graves Amendment did not preempt the Florida statute. Hence, the stage was set for Vargas v. Enterprise Leasing Company.
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April 10, 2011

Limiting Injury in Vehicle Rollover Accidents

by Jeffrey P. Gale, P.A.

Vehicles like the Ford Bronco II, Ford Explorer and 15-passenger vans are designed with an unreasonable risk of rollover. Although there are many things manufacturers can do to prevent rollover accidents, rollover accidents will occur in vehicles considered safe. Knowing this, manufacturers should implement safety features designed to limit rollover accident injuries.

Although rollover accidents constitute 1.74% to 6.3% of all accidents depending on the type of vehicle involved, they account for 33% of all serious injuries and death.

Amazingly, the federal government does not require manufacturers to conduct rollover accident testing. The consequence of this is a gap in knowledge in how best to prevent rollover accident injuries and many vehicles lacking available equipment to optimally protect occupants in a rollover.
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