Articles Posted in Car, Truck & Motorcycle Accidents

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Fault (or negligence) is always an issue in Florida motor vehicle accident personal injury cases. For an individual to be successful in claiming damages against another party, the claimant has the burden of proving that the other party caused the accident.

In some cases, proving fault is an easy matter. In others, the issue will be hotly contested. In those cases, the plaintiff – the party seeking damages – needs evidence to prove her or his case. One place to look (for evidence) is in the traffic court records.

In most Florida motor vehicle accidents, an investigating law enforcement officer will issue a traffic infraction/ticket to one or more of the involved parties. The ticket can be an expression of the investigating officer’s opinion with regard to fault. For example, a driver may be ticketed for following too closely or for failing to yield the right of way.

Although the traffic infraction itself is not admissable as evidence of guilt in a civil case arising out of the accident, the defendant’s response to the traffic charge may be.

With a few exceptions, Florida Statute Section 318.14(4)(a) allows any person charged with a noncriminal traffic infraction to pay the civil penalty by mail or in person without the effective admission of guilt being used as evidence in any other proceedings. “[O]ther proceedings” includes a civil action arising out of a traffic accident.

For purposes of motor vehicle accidents, the most important exceptions to 318.14(4)(a) are contained in Florida Statute 318.19, which contains a list of traffic infractions requiring a mandatory hearing. Those infractions are:

  1. Any infraction which results in a crash that causes the death of another;
  2. Any infraction which results in a crash that causes “serious bodily injury” of another as defined in s. 316.1933(1);
  3. Any infraction of s. 316.172(1)(b);
  4. Any infraction of s. 316.520(1) or (2); or
  5. Any infraction of s. 316.183(2), s. 316.187, or s. 316.189 of exceeding the speed limit by 30 m.p.h. or more.

Unlike the allowance contained in 318.14, a guilty plea in one of the 318.19 exceptions can be used as evidence in any other proceedings, including a civil case for damages. (The record of the plea is admitted, not as establishing the fact [of fault], but as a deliberate declaration or admission of the party himself that the fact is true. Boshnack v. World Wide Rent-A-Car, Inc., 195 So.2d 216, 218 (Fla., 1967).)
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No type of insurance coverage is required to lawfully operate a motorcycle in Florida. The owner of a motorcycle can obtain a license plate and registration without any coverage. This is different than the law with regard to cars and trucks. The owner of either of those types of motor vehicles must, at a mimimum, have Personal Injury Protection (PIP) and Property Damage – Liability insurance to obtain a plate and registration. (PIP is no-fault coverage and can pay the policy holder and a few others up to $10,000 for medical benefits and lost wages, while PD – Liability covers property damage to the other vehicles.)

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 the Florida Statutes. Taking it one step further, these consequences will also result to the inadequately insured owner even if he/she was not operating the vehicle, if the accident was caused by a permissive user. This is because Florida considers vehicles used on its roads and highways to be dangerous instruments, subjecting its owners to the same liability for accidents as the permissive operators.
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I am a member of the Florida Justice Association (FJA), a Tallahassee-based organization dedicated to strengthening and upholding Florida’s civil justice system and protecting the rights of Florida’s citizens and consumers. Within the organization is an Internet discussion group, of which I have been a member for more than ten years, consisting of a sub-group of lawyers who only represent Plaintiffs/Claimants. In other words, no defense attorneys are allowed access to this discussion group. The group discusses legal issues concerning the rights of individuals within the context of the civil justice system. It is an invaluable resource.

Many of my blogs discuss the dangers facing Florida’s civil justice system. Among the specific topics discussed regarding the larger issue deal with what is referred to in Florida as the crashworthiness or enhanced injury doctrine. (Blogs 1, 2, and 3.) I have warned that this important consumer safety law was in danger of being eliminated by Rick Scott and Florida’s Republican-controlled legislature. Well, in just day two of the Rick Scott administration, the doctrine is under assault and, given the Republican numbers, likely to be killed.

Given the importance of the doctrine to the safety and well-being of people in Florida, this assault on the doctrine is a hot topic of discussion on the FJA’s Internet discussion board. I found one post particularly enlightening and have decided to post it here (slightly edited). The author is Florida Attorney Rich Newsome.

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This coming Tuesday afternoon, the Florida Senate Judiciary Committee, chaired by Senator Anitere Flores, will take up an anti-consumer bill involving automobile safety. This bill is being spearheaded by Ford Motor Company and if passed, will have huge consequences for consumers who are maimed and killed by defective cars. (Blogger’s note: In 2009, Ms. Flores introduced and shepherded workers’ compensation legislation that has resulted in the drastic curtailment of the ability of injured workers to obtain benefits. The legislation is in the process of being appealed as unconstitutional to the Florida Supreme Court.)
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Without knowing any better, one might believe that most lawsuits are frivolous. This is a popular message in American society spread through ignorance and deceit. The truth reveals a different reality.

Through my blog, I will attempt to debunk through facts and reason this false notion regarding lawsuits. It will be undertaken in multiple installments.

The first thing to understand is that, for the past 30 years, big business has made a concerted effort to undermine the integrity of the civil justice system. The reason why is simple: Profits over people.

The civil justice system is the best vehicle an individual in our society has of holding a much stronger corporation accountable for wrongdoing. When the system works as designed by our Founding Fathers, powerful companies can be made to answer to judges and, more importantly, jurors.

Not happy with being held accountable, big business has undertaken a campaign to undermine the integrity of the civil justice system. In addition to the creation of laws making it more difficult for individuals to pursue claims, big business has developed a successful propoganda machine designed to pollute the minds of our citizenry against individuals who bring claims against companies.

Hardly an adult in America has not heard the expression “Frivolous Lawsuit.” Unfortunately, nearly every potential juror has been tainted with the false concept, some of whom are downright hostile against individuals who would sue a company. It a classic counter intuitive response: Everday Americans reflexively siding with big business over “We, the People.” Sad but true.

Big business is patting itself on the back for successfully turning individuals against their own best interests. They are laughing at you and me for being such fools.

In Florida, the minimum cost to file and serve a lawsuit on a single party is nearly $500. $500 is $500, not small change to most people, especially nowadays, including lawyers and law firms. Add in the fixed costs of rent, supplies, and salaries and the cost of filing a lawsuit approaches upwards of $1,500-$2,000. (This does not include, for example, the requirement in medical malpractice cases of obtaining an expert opinion before filing suit, which, depending on the complexity and seriousness of the case, can easily cost more than $5,000, or the practical need in other cases to obtain an expert’s knowledge before filing suit.)

The point is, it takes a significant amount of time, energy, and money to get a case off the ground. This is all without any guarantee whatsoever of being paid penny one in the case, even the strongest case. That’s right, contrary to the false ideas spread by the propogandists and those who have been duped into believing their garbage, the mere fact of filing a lawsuit does not assure a recovery. What it does guarantee is a knock-down, drag-out fight. I liken the consequence of filing a lawsuit to being on the back of an angry bull as it leaves the cage with the sole intent of bucking the rider off its back. Hold on tight and expect a rough ride.

Given the significant initial expense of filing suit and the uncertainty of success, does it make sense that lawyers make a practice of filing baseless (i.e., “frivolous”) claims? Not in the common sense world in which I try to live.

Stay tuned for more installments.
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It is unlawful for any person whose driver’s license has been suspended to operate a vehicle upon the streets and highways of Florida. Florida Statute 322.34. In addition, any vehicle owner who knowingly allows a person with a suspended license to operate his/her vehicle in Florida commits a misdemeanor of the second degree. 322.36. (Since Florida Statute 322.38, which addresses the minimum duty owed by rental agencies, uses the word “person” in reference to an owner who rents his/her vehicle, the use of the word “person” in 322.36 makes its provisions applicable to rental agencies.)

We are currently involved in litigation against Enterprise Leasing Company of Florida, LLC (Miami-Dade County case number 08-80070 CA 23), for catastrophic injuries caused by the renter of one of its vehicles in a highway roll-over accident. When Enterprise allowed the renter to drive its vehicle off its lot, his Florida license was under suspension for moving violations.

Enterprise’s defense is that it did not know or have a duty to determine if the renter’s license was suspended. Interestingly, an Enterprise representative testified in deposition that, had the company known [of the suspension], it would have been negligence on its part to entrust its vehicle to the renter. We have asserted that Enterprise had a duty to limit the risk to our client, which included making an effort to determine, at a minimum, the status of its renter’s Florida license. In a Motion for Summary Judgment, Enterprise asked the court to decide the issue. The court denied Enterprise’s motion, allowing us to proceed with our case.

Since 1999, Florida driver license status records have been searchable through the Internet by DL number or name/date-of-birth/sex, making status information available in a matter of seconds. Enterprise did not perform this simple and fast search in our case. Had it done so, it would have learned of the suspended license, which was registered in the database since 2006, some two years before our accident. (By the way, Enterprise’s customer, who did not have a valid credit card, paid cash to rent the vehicle.)

Was this a case of willful ignorance to avoid the chance of turning away a paying customer?

For many years, numerous car rental companies had been using databases to screen driving records of potential renters. See articles #1 and #2. (It is estimated that 6-10% of potential renters are denied by the screening process. The reasons for the denials vary from suspended licenses to poor driving records.) However, among the major car rental companies, Enterprise was an exception to that policy.

Sadly, the pack may soon, if not already, be following Enterprise’s lead.
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Fifteen-passenger vans, especially those manufactured before 2004, are, by design, inherently unstable and unsafe, making them prone to roll over during tire blowouts and quick maneuving at higher speeds. People are being severly injured and killed when the vans roll over. Sadly, federal regulators and auto safety experts have known for years that these vans are unfit to transport people, yet they continue to be manufactured.

These vans were originally designed to carry cargo, not people. Those designed before 2004 lack even the most basic safety improvements and NHTSA-required warnings and advisories. However, even the newer models are unstable.

Federal law prohibits the sale of 15-passenger vans for the school-related transport of high school age and younger students, yet they continue to be rented for family use by the major rental agencies.

More than 500,000 of these vehicles are in use in the United States.
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In 1920, the Florida Supreme Court, in Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920), applied the dangerous-instrumentality doctrine to automobiles. The significance of the holding is that owners of automobiles are responsible for personal injuries caused through the negligence of those who drive their vehicles. The legal theory that holds the owner accountable is known as vicarious liability. The Supreme Court reasoned:

This form of vicarious liability is not based on respondent superior or an agency conception, but on the practical fact that the owner of an instrumentality which [has] the capability of causing death or destruction should in justice answer for misuse of this instrumentality by anyone operating it with his knowledge and consent.

(See this blog for a major exception to the danagerous-instrumentality doctrine.)

In 1984, the Florida Supreme Court expanded the dangerous-instrumentality doctrine to include golf carts, even those being used on the golf course. Meister v. Fisher, 462 So. 2d 1071 Fla. 1984). However, as the evolution of common law doctrine moves at a glacial pace, it has not yet been determined if ATVs are dangerous-instrumentalities for purposes of vicarious liability. The question is likely to be answered soon.
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tire_blowout.jpgThere is more to tire safety than adequate tread depth and proper inflation levels. Age alone is a major factor in tire safety. As tires age, the rubber dries out and makes them more prone to blowouts and tread separation. This applies to new-old-stock tires as well as to used tires.

No laws in the United States restrict the age of tires. In states with inspection laws – Florida is not one of them – all that is tested is tread wear. A tire has a useful life of six years. Accordingly, for consumers to get at least two years of useful life from a tire, it should be no more than four years old at the time of purchase.

Unfortunately, retailers can sell tires that are more than six years old. Many are much older, sometimes 15 years and above. These tires are accidents waiting to happen.
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We are frequently asked if insurance premiums will be increased or policies canceled or non-renewed because of a motor vehicle accident. If the insured was not substantially at faulpretty answer is No. See Florida Statute 626.9541(1)(o)3. An insurance company’s violation of this statute may subject it to a civil lawsuit and government fines for engaging in an unfair and deceptive act.

Further consumer protection is afforded by Florida Statute 626.9702, which provides as follows:

(1) No insurer shall impose or request an additional premium for automobile insurance, or refuse to renew a policy, solely because the insured or applicant was convicted of one or more traffic violations which do not involve an accident or do not cause revocation or suspension of the driving privileges of the insured, without adequate proof of a direct, demonstrable, objective relationship between the violation for which the surcharge was imposed and the increased risk of highway accidents.
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Reproduced below is a letter published in the September/October 2010 issue of The Florida Bar Journal. It was written by my friend, collegue, superb trial lawyer, and advocate for the underprivileged, Cris Boyar. The letter exposes the dirty propaganda disseminated by the insurance industry regarding PIP (Personal Injury Protection) lawsuits. A must read.

Elimination of PIP Multipliers Response

I read the slanted article, “Putting the Lid Back on Pandora’s ‘Jar’: A Clarion Call for the Elimination of Contingency Risk Multipliers in Florida PIP Litigation,” by insurance defense lawyers Douglas Stein and Donald Blackwell in the July/August issue. While it is long on words, it is clearly short on reality. The article fails to mention that insurance companies drive up legal fees by causing expensive and protracted litigation. In the real world, insurance companies not only routinely and unreasonably deny valid claims, but when sued, the insurers file frivolous defenses, deny admissions that should be admitted, propound significant discovery, object to basic discovery, force countless hearings, schedule numerous unnecessary depositions of collateral witnesses, and demand jury trials that can last for days. If the insurer loses, it demands attorneys’ fees hearings and files appeals. Then, after all of the litigation that it caused, the insurer complains the legal fees awarded against it are too high and do not bear a relationship to the amount in controversy. The hypocrisy is obvious to those who sue insurance companies for denying valid claims.

If an insurer wants to limit its exposure to legal fees and costs, it can simply pay valid claims timely. It could also pay the claim in response to the statutorily mandated presuit demand letter, which allows 30 additional days to pay without risk of paying attorneys’ fees. If it is sued for not paying a claim, it can instruct its defense lawyers to agree to a bench trial, admit allegations and admissions, and agree to narrow the issues. If the insurer believes it will lose the case, the insurer, at any time, can simply confess judgment to stop the clock. Alternatively, the insurer can file an offer of judgment. If the insurer then prevails in the litigation, the insurer will be reimbursed its attorneys’ fees and costs by the insured or the medical provider.

Rather than fall prey to insurance industry propaganda, the public should realize the insurance industry has embarked on a strategic campaign designed specifically to poison the pool of potential jurors and bar its insureds’ access to courts, while at the same time filling its coffers with premiums Florida citizens are legislatively mandated to pay.

It must be pointed out that multipliers are very rarely awarded in PIP cases. Most lawyers who handle PIP claims reject a significant number of cases for various reasons. The unfortunate result is that many insureds and medical providers have no recourse when the insurers wrongly and routinely deny valid PIP claims. This is exactly what some of the billion dollar insurance companies hope to accomplish. Accepting premiums and denying claims is a very profitable business model.

The multiplier is the only tool available to encourage competent counsel to accept the most difficult cases that virtually every other lawyer would reject. The applicability of the multiplier should be preserved by the legislature. The trial judges, observing the conduct of counsel for both sides, should be trusted to make the correct decision based on existing Florida law.
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