Archives for August 2013

Florida Uninsured (UM) and Underinsured (UIM) Motorist Coverage – What are Injured Motorists Entitled to When in a Car Accident?

I cannot tell you how many automobile accidents occur in South Florida (particularly in the Florida Keys down in Monroe County, including Key Largo, Marathon, Islamorada and Tavernier — these roads are considered prime car accident territory given the amount of drivers that ride down US 1, a two-laned highway for many portions of the road) where you are seriously injured as a driver, passenger or even pedestrian (if riding a bike or simply walking down the street), and you think to yourself, how am I going to pay for all my medical bills, my lost wages and loss of future earning capacity, the home health aides and nurses I now have to pay for to take care of me while I recover from my injuries.   Even worse, you may be involved in a motorcycle accident when you are rear ended by a truck or tractor trailer, sustaining catastrophic injuries such as an amputation, brain injury, spine injury, degloving injury, paralysis, burn injury or severely fractures legs, arms, hips or vertebrae requiring open reduction internal fixation type surgeries with implantation of hardware.  The question most often asked is what are the layers of coverage or sources where you may be able to recover money to cover all these damages.

WHAT ARE THE LAYERS OF POSSIBLE INSURANCE COVERAGE FOR INJURED MOTORISTS IN AN ACCIDENT: an injured motorist’s first layer is typically your personal injury protection insurance coverage (also known as PIP benefits or No Fault insurance coverage), which are no fault benefits (can include a mix of lost wages and payments for medical bills) that your auto insurance carrier will provide whether you are at fault for the car accident or not.  An injured motorist can be provided up to $10,000 in these no fault insurance benefits provided they meet certain requirements under the law.  For more on Florida’s personal injury protection law, see my previous article.

The next layer of coverage or source where you may be able to secure money to cover all your medical bills, etc., is from the owner and/or driver of the other motor vehicle that struck your car.  This typically involves hiring a Florida personal injury lawyer to file a lawsuit in circuit court, wherein an injured motorist has four years (current statute of limitations on negligence actions) from the date of the car, truck or motorcycle accident to file the lawsuit.

The other layer of insurance coverage that one may be entitled to and which most do not even know about, are uninsured/underinsured (also known as UM or UIM injured motorist coverage) motor vehicle insurance benefits.

WHAT IS FLORIDA UNINSURED AND/OR UNDERINSURED MOTORIST COVERAGE: this insurance is a legislative creation which is intended to provide the injured motorist the ability to recover for his or her personal injuries when in a motor vehicle accident, and is not intended to benefit insurance carriers or motorists who cause damage to other motorists.  The statutory framework of Florida Statute 627.727 is intended to allow the injured driver, passenger or pedestrian the same recovery for his or her personal injuries that they would have been entitled to had the adverse operator or tortfeasor been insured to the same extent as the UM coverage (ie., had the other driver who was at fault for causing the accident had bodily injury liability insurance). In fact, because the UM/UIM statutory framework was enacted to provide benefits to innocent motorists who are injured by the negligence of the uninsured motorist, Florida Courts have held that it is not to be chipped away by exclusions and exceptions in one’s insurance policy.

HOW DO I SECURE FLORIDA UNINSURED AND/OR UNDERINSURED MOTORIST COVERAGE: according to Florida Statute 627.727(1) – Motor vehicle insurance; uninsured and underinsured vehicle coverage; insolvent insurer protection — No motor vehicle liability insurance policy which provides bodily injury liability coverage shall be delivered or issued for delivery in this state with respect to any specifically insured or identified motor vehicle registered or principally garaged in this state unless uninsured motor vehicle coverage is provided therein or supplemental thereto for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom. However, the coverage required under this section is not applicable when, or to the extent that, an insured named in the policy makes a written rejection of the coverage on behalf of all insureds under the policy.

As such, when you purchase car insurance from any car insurance company insuring motor vehicles in Florida, you may be entitled to UM or UIM injured motorist coverage if you are not provided a selection/rejection form and specifically make a written rejection of the coverage. When an insured is not provided a selection/rejection form and the injured motorist does not make a written rejection of coverage, Florida Courts have said that the injured motorist is entitled to uninsured and/or underinsured motorist coverage up to their bodily injury liability limits.  In this scenario, if you have a car insurance policy that provides you with $10,000 in bodily injury liability limits (provides you coverage when you are at fault in a car accident an injure someone else), if no written rejection is made, you may be able to make a claim against your own car insurance company for $10,000 in UM or UIM coverage benefits.

It should be noted that Florida Courts have held that an oral/verbal rejection or waiver of UM/UIM insurance by the named insured has been held to be a satisfactory rejection of UM coverage under Florida Statute 627.727.

Moreover, Florida Statute 627.727(1) states that unless an insured, or lessee having the privilege of rejecting uninsured motorist coverage, requests such coverage or requests higher uninsured motorist limits in writing, the coverage or such higher uninsured motorist limits need not be provided in or supplemental to any other policy which renews, extends, changes, supersedes, or replaces an existing policy with the same bodily injury liability limits when an insured or lessee had rejected the coverage. When an insured or lessee has initially selected limits of uninsured motorist coverage lower than her or his bodily injury liability limits, higher limits of uninsured motorist coverage need not be provided in or supplemental to any other policy which renews, extends, changes, supersedes, or replaces an existing policy with the same bodily injury liability limits unless an insured requests higher uninsured motorist coverage in writing.

In layman’s terms, if you initially reject UM/UIM coverage and you add another vehicle to the policy or simply purchase a replacement vehicle (ie., an extension or change to the policy), the insurance carrier will be not be required to once again secure a written rejection of UM coverage. In addition, if you initially selected UM coverage at limits lower than your bodily injury liability limits (for instance, you have $100,000/$300,000 in BI liability limits but select $10,000/$20,000 in UM coverage), then if you make a change to your policy by adding another vehicle or buying a replacement vehicle, the insurance carrier is not required to provide you with higher UM limits unless you specifically request this type of change in writing.

THE UM/UIM SELECTION/REJECTION FORM: under Florida Statute 627.727(1), the rejection or selection of lower limits shall be made on a form approved by the office. The form shall fully advise the applicant of the nature of the coverage and shall state that the coverage is equal to bodily injury liability limits unless lower limits are requested or the coverage is rejected. The heading of the form shall be in 12-point bold type and shall state: “You are electing not to purchase certain valuable coverage which protects you and your family or you are purchasing uninsured motorist limits less than your bodily injury liability limits when you sign this form. Please read carefully.” If this form is signed by a named insured, it will be conclusively presumed that there was an informed, knowing rejection of coverage or election of lower limits on behalf of all insureds.

WHO IS CONSIDERED A FLORIDA UNINSURED AND/OR UNDERINSURED MOTOR VEHICLE DRIVER: under Florida Statute 627.727(3), the term “uninsured motor vehicle” shall, subject to the terms and conditions of such coverage, be deemed to include an insured motor vehicle when the liability insurer thereof is (a) unable to make payment with respect to the legal liability of its insured within the limits specified therein because of insolvency (ie. the carrier goes bankrupt and goes out of business); (b) has provided limits of bodily injury liability for its insured which are less than the total damages sustained by the person legally entitled to recover damages (ie., the at fault driver of the other vehicle does not have enough insurance to cover the value of your injuries and/or the amount of your medical bills — basically an underinsured motorist); or (c) excludes liability coverage to a nonfamily member whose operation of an insured vehicle results in injuries to the named insured (such as when a good friend or co-worker of yours is driving your vehicle and is at fault for the accident) or to a relative of the named insured who is a member of the named insured’s household (a UM/UIM claim will likely be denied if the at fault driver is a relative that resides in your household).  In addition, your UM/UIM policy would be applicable when the at fault driver has no insurance at all (an “uninsured” driver), which is very common down here in South Florida, or when a party is self insured (also considered an “uninsured” for purposes of the UM/UIM statute).

FLORIDA UNINSURED/UNDERINSURED MOTORIST COVERAGE – TYPES OF VEHICLES COVERED:

  1. Automobiles (including taxi’s): would be covered (even if owned by a resident relative yet not insured under the policy) – in this scenario, a Class I insured (see discussion below) is entitled to UM coverage regardless of the facts when bodily injury is caused by the negligence of an uninsured motorist.
  2. Motorcycles: coverage would depend on the definition of “automobile” within the insurance policy — for instance, the term “automobile” as found within a liability policy of a motorcycle owner defining an automobile as a “land motor vehicle or trailer not operated on rails or crawler treads,” was held by a Florida Court to mean all land vehicles except those specifically excluded — thus, coverage was extended to a motorcycle passenger (under the owner’s liability policy) for injuries received in collision with an uninsured motorist.  Other Courts have held that a motorcycle is a “motor vehicle” for analyzing an injured person’s claim for uninsured motorist coverage, where the person owned and operated a motorcycle that was not an insured vehicle under the policy and which was involved in a car accident.
  3. Mopeds: a moped is not a “motor vehicle” under Florida’s statutory definition (324.021(1)). As such, a Florida Court ruled that a pedestrian injured in an accident in which the alleged tortfeasor was operating a moped was not entitled to personal injury protection or UM benefits under their automobile policy.  However, another Florida Court noted that where an automobile involved in an accident was not covered by insurance and moped upon which the  insured was riding was not owned by the insured or the named insured and neither of them owned any other uninsured automobile, the insurance carriers attempt to exclude coverage because the moped has less than four wheels was an attempt to exclude uninsured motorist coverage based solely upon the mode of transportation, which is an impermissible exclusion.
  4. Off-road vehicles (dune buggy, ATV, etc.): a Florida court has held that an uninsured motorist carrier’s exclusion from coverage of a motor vehicle designed mainly for use off public roads when the vehicle is being operated off public roads at the time of the accident (in this case, a passenger was injured when a dune buggy being driven off road turned over) was not void for public policy reasons.

FLORIDA UNINSURED/UNDERINSURED MOTORIST COVERAGE – TYPES OF PERSONS COVERED: 

  1. Class I insured: would include the likes of the named insured, the named insured’s spouse and his/her relatives (must be either a legal or blood relationship) living in the same house — this is notwithstanding that the covered automobile is not involved in the accident from which the motorist was injured (a Class I insured would be entitled to UM benefits whether they were in their own vehicle, a rental car, someone else’s vehicle or involved in the car accident as a pedestrian); as to resident relatives, factors the Courts take into consideration to determine whether one would be considered a “resident” relative would be the extent of time at the residence (ie., whether it was a continuous one), one’s physical presence, whether personal items are maintained at the residence, and the intent of the parties (ie., a son who currently lived at a military base but continued to use his parents address as his permanent mailing address while in the service).
  2. Class II insured: are classified as a permissive user or passenger in the insured vehicle (ie, these insureds would only be entitled to UM benefits from the vehicle they are driving or occupying as a passenger).

WHAT TYPES OF SITUATIONS IS FLORIDA UNINSURED AND/OR UNDERINSURED MOTOR VEHICLE COVERAGE APPLICABLE TO:  in order for UM coverage to be triggered, the injury must have some causal connection with an uninsured or underinsured vehicle and for which the car accident usually must arise out of the ownership, maintenance or use of an uninsured or underinsured vehicle.  A Florida court has analyzed what “use” of a motor vehicle would be sufficient to trigger UM coverage for injuries sustained, providing a three prong test: (1) whether the accident arose out of the inherent nature of an automobile; (2) whether the accident arose within the natural territorial limits of an automobile, with actual use not having terminated; and (3) whether the automobile merely contributed to cause a condition which produced an injury or whether the automobile itself produced an injury. 

FLORIDA UNINSURED/UNDERINSURED MOTORIST COVERAGE IS APPLICABLE TO HIT AND RUN AUTOMOBILE ACCIDENTS (AKA PHANTOM DRIVERS): It should be noted that if you have uninsured/underinsured motorist coverage under your Florida insurance policy, it could also be applicable to cover damages from a hit and run car accident, where you have no idea who the adverse driver/vehicle is (also known as a phantom driver or phantom vehicle).  In fact, it could be applicable even if the hit and run driver did not even make contact with your vehicle, but drove in such a negligent manner that you were forced to react, thereby sustaining an automobile accident.  A “hit and run” accident for uninsured and/or underinsured  motor vehicle coverage purposes, requires either physical contact with another vehicle or the presence of a phantom vehicle that causes your car or motorcycle to get into an automobile accident although without actual contact, such as where your vehicle is forced off the road to avoid a collision.

Of note, your testimony as to the cause of your car accident involving another “phantom” automobile where there is no contact, is sufficient to secure UM/UIM benefits under your policy  —  there does not need to be corroboration by another witness, as such a requirement in an insurance policy has been declared unenforceable.

It is also important to note that UM/UIM policies typically have requirements that one provide notice to the carrier of a hit and run accident within 24 hours, although Courts have interpreted this to mean “as soon as practicable.”

FLORIDA UNINSURED/UNDERINSURED MOTORIST COVERAGE IS APPLICABLE TO MOTORISTS WHO STRIKE OBJECTS IN THE ROAD THAT ORIGINATE FROM UNIDENTIFIED OR PHANTOM MOTOR VEHICLES: it is very common down here in South Florida to be driving on 826 South, I-95 North or South, or the Turnpike, and you have to swerve out of the way because of objects in the road.  A form of “hit and run” accident involving phantom vehicles is when objects (such a lumber, steel beams, cinder blocks, furniture and the like) fall off of motor vehicles, trucks, semis, etc., and either land in the road and you are required to swerve to avoid it, or the object actually strikes your vehicle, causing a major car accident.   So long as there is competent evidence or testimony as to the origination of the objects which cause the accident (ie., that the objects actually fell off a motor vehicle), an unidentified car, truck or semi can constitute a “hit and run” vehicle within the scope of a UM/UIM policy’s definition of an uninsured motor vehicle.

FLORIDA UNINSURED/UNDERINSURED MOTORIST COVERAGE IS APPLICABLE TO SELF INSURED MOTORISTS: It should be noted that if you are in a car accident with a self insured motorist with a certificate of self-insurance with limits of liability lower than the damages sustained by you, the self insured driver will be deemed to be statutorily “uninsured” for purposes of having your UM/UIM benefits applicable to the car accident.

FLORIDA UNINSURED/UNDERINSURED MOTORIST COVERAGE IS ESSENTIALLY EXCESS INSURANCE: under Florida Statute 627.727(1), the coverage described under this section shall be over and above, but shall not duplicate, the benefits available to an insured under any workers’ compensation law, personal injury protection benefits, disability benefits law, or similar law; under any automobile medical expense coverage; under any motor vehicle liability insurance coverage; or from the owner or operator of the uninsured motor vehicle or any other person or organization jointly or severally liable together with such owner or operator for the accident; and such coverage shall cover the difference, if any, between the sum of such benefits and the damages sustained, up to the maximum amount of such coverage provided under this section. The amount of coverage available under this section shall not be reduced by a setoff against any coverage, including liability insurance. Such coverage shall not inure directly or indirectly to the benefit of any workers’ compensation or disability benefits carrier or any person or organization qualifying as a self-insurer under any workers’ compensation or disability benefits law or similar law.

FLORIDA UNINSURED AND UNDERINSURED MOTORIST COVERAGE ALLOWS THE UM/UIM INSURER AN OFFSET BY WAY OF THE UNINSURED MOTORIST’S LIABILITY POLICY: under Florida Statute 627.727(6)(c), the underinsured motorist insurer is entitled to a credit against total damages in the amount of the limits of the underinsured motorist’s liability policy in all cases to which this subsection applies, even if the settlement with the underinsured motorist under paragraph (a) or the payment by the underinsured motorist insurer under paragraph (b) is for less than the underinsured motorist’s full liability policy limits. The term “total damages” as used in this section means the full amount of damages determined to have been sustained by the injured party, regardless of the amount of underinsured motorist coverage. Nothing in this subsection, including any payment or credit under this subsection, reduces or affects the total amount of underinsured motorist coverage available to the injured party.

FLORIDA UNINSURED/UNDERINSURED MOTORIST COVERAGE CAN BE STACKED: Florida Courts have acknowledged that UM coverage can be stacked.  The stacking of UM coverage allows the coverage of two or more motor vehicles to be added together to determine the limit of insurance for UM coverage available to an injured motorist or person for any one accident.  As such, if you have three cars in your household, each with $10,000 in UM coverage (stacked), if you get in a car accident with a vehicle that has no insurance, you can add up all three of your polices to secure a total of $30,000 in total UM/UIM benefits.  Of note, in general, Class I insureds can stack while Class II insureds cannot.

FLORIDA UNINSURED/UNDERINSURED MOTORIST AUTOMOBILE COVERAGE CLAIMS – STATUTE OF LIMITATIONS: if you are injured in an automobile accident and the adverse vehicle has no insurance or too little to cover injuries and damages sustained, you can have a Florida car accident lawyer bring a lawsuit for UM/UIM benefits.  While a lawsuit against the adverse operator must be brought within four years from the date of accident, a UM/UIM claim must be brought within five years from the date of accident (is viewed as a breach of contract claim given that you would be suing your own car insurance carrier under your policy of insurance). 

FLORIDA UNINSURED/UNDERINSURED MOTORIST COVERAGE AND EMPLOYER OR WORK VEHICLES: so your an air conditioning contractor, plumbing contractor, or you simply work construction and are provided a work vehicle, and you happen to get in an automobile accident in the work vehicle (an “on the job” accident) to which the adverse vehicle has no insurance.  Question is, is your employer required to provide you UM/UIM coverage given that they provide you with the work vehicle.  The Florida Supreme Court has spoken, and they have held that an employer is not required to provide uninsured motorist coverage to an employee, nor are they required to provide an employee with the opportunity to accept or reject uninsured motorist insurance even though the employer provides the employee through employment a contract of insurance in compliance with the financial responsibility law and Automobile Reparations Reform Act and other indemnity and insurance coverages on the employee’s personal vehicle used by the employee in the employer’s business.

Moral of the Story: Whether you are a injured (minor or serious) in an automobile or motorcycle accident in Coral Springs, Cooper City, Hallandale, Boca Raton, Homestead, Brickell, South Beach, Pembroke Pines, Cutler Ridge, Palmetto Bay, Key Biscayne, Weston, Pompano Beach, Tamarac, Plantation, Delray, Deerfield Beach or another area within Miami, Fort Lauderdale, Palm Beach or the Florida Keys, know that you may need to retain a Florida personal injury lawyer to analyze the many complexities involved with uninsured and/or underinsured injured motorist coverage claims.

Florida Personal Injury Protection (PIP) Benefits – What am I Entitled to Under Florida’s Motor Vehicle No-Fault Law if I am Involved in an Automobile Accident?

Florida Personal Injury Protection Law_fightsforyou.netDriving on the roadways in South Florida is a treacherous task for which all owners of a motor vehicle are required to carry a minimum of $10,000 in property damage liability insurance (for when you are at fault and cause damage to another car or motor vehicle), as well as personal injury protection insurance (also known as PIP insurance).  You are not required to carry PIP insurance as the driver or rider of a motorcycle or moped given that a vehicle under the personal injury protection statutory framework is one with four wheels. It should also be noted that PIP is not required for drivers of taxi cabs, limousines and school buses.

WHAT IS PERSONAL INJURY PROTECTION NO FAULT INSURANCE:  Florida personal injury protection insurance coverage, also known as PIP benefits arising out of Florida’s Motor Vehicle No-Fault Law, are no fault benefits (can include a mix of lost wages and payments for medical bills) that your auto insurance carrier will provide whether you are at fault for the car accident or not.

WHAT IS ONE ENTITLED TO: If your vehicle is involved in a car accident, trucking accident (say with a UPS, FedEx or other semi/big rig on the highway),  motorcycle accident, you strike a pedestrian or bicycle, or you are struck by another motor vehicle while walking on a sidewalk or riding a bicycle, and you are injured in the accident, your insurance carrier is supposed to pay up to 80% of your medical bills (that are reasonable and necessary, including but not limited to doctor visits, hospital visits, X-ray’s, MRI’s, CAT scans, surgery, dental bills, emergency transport and ambulance bills, physical therapy and rehabilitation bills, home nursing care, prescriptions and pain medication, glasses, hearing aids and other medical appliances necessary for treatment) and 60% of your lost wages (PIP also reimburses you for your transportation costs for “reasonably medically necessary” medical treatment — will simply have to fill out the mileage form). Your PIP insurer will cover a maximum of $10,ooo in total personal injury protection benefits (your automobile insurer will require you to fill out a Personal Injury Protection Benefits “PIP” application, along with a wage loss form, in order to evaluate your PIP claim) assuming you meet the requirements of the new PIP law. For more information on the new PIP law and the statutory amendment in 2012, see my prior article on some of the relevant changes.  A majority of this amendment is effective starting January 1, 2013.

FLORIDA STATUTE 627.736(1) – REQUIRED BENEFITS:  An insurance policy complying with the security requirements of s. 627.733 must provide personal injury protection to the named insured, relatives residing in the same household, persons operating the insured motor vehicle, passengers in the motor vehicle, and other persons struck by the motor vehicle and suffering bodily injury while not an occupant of a self-propelled vehicle, subject to subsection (2) and paragraph (4)(e), to a limit of $10,000 in medical and disability benefits and $5,000 in death benefits resulting from bodily injury, sickness, disease, or death arising out of the ownership, maintenance, or use of a motor vehicle.

Subsection (2) states the following:  Authorized exclusions –Any insurer may exclude benefits:

(a) For injury sustained by the named insured and relatives residing in the same household while occupying another motor vehicle owned by the named insured and not insured under the policy or for injury sustained by any person operating the insured motor vehicle without the express or implied consent of the insured.

(b) To any injured person, if such person’s conduct contributed to his or her injury under any of the following circumstances:

1. Causing injury to himself or herself intentionally; or

2. Being injured while committing a felony.

Subsection (4)(e) states the following:  The insurer of the owner of a motor vehicle shall pay personal injury protection benefits for:

1. Accidental bodily injury sustained in this state by the owner while occupying a motor vehicle, or while not an occupant of a self-propelled vehicle if the injury is caused by physical contact with a motor vehicle.

2. Accidental bodily injury sustained outside this state, but within the United States of America or its territories or possessions or Canada, by the owner while occupying the owner’s motor vehicle.

3. Accidental bodily injury sustained by a relative of the owner residing in the same household, under the circumstances described in subparagraph 1. or subparagraph 2., if the relative at the time of the accident is domiciled in the owner’s household and is not the owner of a motor vehicle with respect to which security is required under ss. 627.730-627.7405.

4. Accidental bodily injury sustained in this state by any other person while occupying the owner’s motor vehicle or, if a resident of this state, while not an occupant of a self-propelled vehicle if the injury is caused by physical contact with such motor vehicle, if the injured person is not:

a. The owner of a motor vehicle with respect to which security is required under ss. 627.730-627.7405; or

b. Entitled to personal injury benefits from the insurer of the owner of such a motor vehicle.

WHO PAYS THE PERSONAL INJURY PROTECTION NO FAULT INSURANCE BENEFITS: Assuming you are entitled to PIP benefits and meet one of the specifications referenced above, the next question one likely will have is who pays my PIP benefits. Typically when you own your own vehicle and are injured in an automobile accident (whether a driver or passenger in your own vehicle or someone else’s, or are struck by a car while riding your bicycle or walking down the street as a pedestrian), your own car insurance will be the party initially responsible for paying your personal injury protection benefits. However, if you do not own a motor vehicle, you would then look to the insurance company of a resident relative who resides with you to be responsible for PIP insurance benefits, regardless of whether they or their car was involved in the accident.  If a resident relative’s insurance is not applicable and you are injured as a passenger or driver of someone else’s car, you can look to have the PIP benefits paid by the insurance company of the owner of the car in which you were a driver or passenger.  If you are injured as a pedestrian (provided the injury results from the ownership, maintenance, or use of a motor vehicle), you can look to the at-fault party’s car insurance to pay PIP insurance benefits.

PERSONAL INJURY PROTECTION INSURANCE BENEFITS EXAMPLE WHEN IN A CAR ACCIDENT: Given the aforementioned, one would probably ask what the practical application of all this is assuming you are seriously injured in an automobile accident.  Your PIP insurance can have a deductible depending on what you selected when purchasing your policy. What this means is that if a person’s medical bills reach $15,000, the insurer is responsible to pay up to $10,000 of these bills (assuming they are reasonable and necessary)  if the person has no deductible on their policy, leaving you with $5,000 left over in medical bills. Assuming you have a $1,000 deductible, the insurer would apply their 80% starting at $14,000, to which they would pay up to $10,000, leaving you with outstanding bills amounting to $3,800.  You essentially must incur approximately $12,500 in medical bills for the insurance carrier to pay the maximum benefits of $10,000 (80% of $12,500 is $10,000).  Please keep in mind that the $10,000 maximum limit is all dependent on whether you meet the requirements of the new PIP law.  For more information on the PIP statutory amendment in 2012, see my prior article on some of the relevant changes.  A majority of this amendment is effective starting January 1, 2013.

Moral of the Story: whether you live in Miramar, Deerfield Beach, Coconut Creek, Doral, Lauderhill, Margate, Miami Lakes, Pembroke Pines or another area within Miami, Fort Lauderdale, Palm Beach or the Florida Keys (including Key Largo, Marathon, Islamorada, Tavernier or another Key down in Monroe County), and you are seriously injured in an automobile accident whether as a driver, passenger or pedestrian, know that you may be entitled to up to $10,000 in personal injury protection No Fault benefits from your own insurance carrier although your insurer will likely deny some of your medical providers’ claims, thus necessitating the retention of a Florida personal injury protection benefits (PIP) lawyer to assist you in getting the benefits you are entitled to under Florida’s Motor Vehicle No-Fault Law.

All-Risk Homeowners Insurance Policy: Does it Cover Water Damage Incurred by a Broken and Deteriorated Pipe Under Your House?

Florida insurance claims_fightsforyou.netAccording to a recent case out of the Third District Court of Appeal, this type of policy can cover damages that frequently occur when a pipe failure below one’s floor or concrete slab occurs due to the pipe’s deterioration over the years.  Obviously, each homeowner’s case is different depending on the language within their respective homeowners insurance policy, as well as the facts surrounding the insurance claim loss.

In the case of Cheetham v. Southern Oak Ins. Co., 114 So.3d 257 (Fla. 3d DCA 2013), a Florida homeowner suffered damage to their home when a pipe located on the “residence premises” broke and/or collapsed due to age and deterioration (which usually provides insurance carriers ammo to deny claims under the notable and common “wear and tear exclusion”). As the pipe was located underneath the ground, debris entered the pipe, forming a blockage, which ultimately caused waste water and/or material to back up through the blocked pipe and into the “residence premises” through drains.  The homeowner filed a claim with their insurer, Southern Oak, after their home sustained water damage.   After Southern Oak denied the claim, the homeowner filed suit, claiming the loss was covered by their all-risk homeowners’ insurance policy.   In response, Southern Oak asserted that a “Water Damage” exclusion was applicable, and, therefore, the homeowners loss was not covered.

The Court noted the following relevant provisions within the policy:

HOMEOWNERS 3—SPECIAL FORM

SECTION I—PERILS INSURED AGAINST

A.  Coverage A—Dwelling And Coverage B—Other Structures

1.  We insure against risk of direct physical loss to property described in Coverages A and B.

2.  We do not insure, however, for loss:

a.  Excluded under Section I— Exclusions;

…..

c. Caused by:

…..

(6) Any of the following:

(a) Wear and tear, marring,  deterioration;

…..

Exception To c.(6)

Unless the loss is otherwise excluded, we cover loss to property covered under Coverage A or B resulting from an accidental discharge or overflow of water or steam from  within a:

(i) Storm drain, or water, steam or sewer pipe, off the “residence premises”;  or

(ii) Plumbing … system…  on the “residence premises ”.  This includes the cost to tear out and replace any part of a building, or other structure, on the “residence premises”, but only when necessary to repair the system…. However, such tear out and replacement coverage only applies to other structures if the water … causes actual damage to a building on the “residence premises”.

…..

We do not cover loss to the system … from which this water … escaped.  For purposes of this provision, a plumbing system … does not include a sump, sump pump or related equipment or a roof drain, gutter, down spout [sic] or similar fixtures or equipment.

…..

Section I—Exclusion A.3. Water Damage, Paragraphs a. and c. that apply to surface and water below the surface of the ground do not apply to loss by water covered under c.(5) and (6) above.

…..

B. Coverage C—Personal Property

We insure for direct physical loss to the property described in Coverage C caused by any of the following  perils unless the loss is excluded in Section I—Exclusions.

…..

12. Accidental Discharge Or Overflow Of Water Or Steam

a.  This peril means accidental discharge or overflow of water … from within a plumbing … system….

b. This peril does not include loss:

(1) To the system … from which the water … escaped;

…..

(3) On the “residence premises” caused by accidental discharge or overflow which occurs off the “residence premises”;  ….

…..

c. In this peril, a plumbing system … does not include a sump, sump pump or related equipment or a roof drain, gutter, downspout or similar fixtures or equipment.

d. Section I—Exclusion A.3. Water Damage, Paragraphs a. and c. that apply to surface water and water below the surface of the ground do not apply to loss by water covered under this peril.

…..

SECTION I—EXCLUSIONS

A.  We do not insure for loss caused directly or indirectly by any of the following.   Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss.   These exclusions apply whether or not the loss event results in widespread damage or affects a substantial area.

…..

3. Water Damage

Water Damage means:

a.  Flood, surface water, waves, tidal water, overflow of a body of water, or spray from any of these, whether or not driven by wind;

b. Water or water-borne material which backs up through sewers or drains or which overflows or is discharged from a sump, sump pump or related equipment;  or

c. Water or water-borne material below the surface of the ground, including water which exerts pressure on or seeps or leaks through a building, sidewalk, driveway, foundation, swimming pool or other structure; caused by or resulting from human or animal forces or any act of nature.

The Court addressed the following issues: (1) whether the all-risk policy is ambiguous where it provides for coverage for the “accidental discharge” of water “within a … plumbing … system … on the ‘residence premises’ ” caused by “deterioration,” but excludes “water damage” caused by “[w]ater or water-borne material which backs up through sewers or drains,” and (2) whether the exclusion applies when a pipe located within the plumbing system of the “residence premises” breaks due to deterioration, causing debris to enter the pipe and forming a blockage, and as a result of the blockage, waste water and/or material backed up through the blocked pipe “within” the “plumbing system” and then into the “residence premises” through drains.

The Court opined that at first glance, without examining the “Section I—Exclusions,” it would appear that the claimed loss would not be covered because the loss was caused by a deteriorated pipe, ie., one of the most common exclusions insurance carriers cite to deny homeowners insurance claims.

However, the policy also included an exception to the no-coverage provision involving “deterioration,” which provided as follows:

Exception To c.(6)

Unless the loss is otherwise excluded, we cover loss to property covered under Coverage A [Dwelling] or B [Other Structures] resulting from an accidental discharge or overflow of water … from within a:

…..

(ii) Plumbing … system … on the “ residence premises ” ….

Therefore, the Court noted that based on paragraph (ii) under “Exception To c.(6),” an “accidental discharge” of water from within a plumbing system caused by deterioration is a covered loss, “[u]nless the loss is otherwise excluded.” Exclusions pertaining to water damage are found in Section I A.3. of the policy.

SECTION I—EXCLUSIONS

A. We do not insure for loss caused directly or indirectly by any of the following….

…..

3. Water Damage

Water Damage means:

a. Flood, surface water, waves, tidal water, overflow of a body of water, or spray from any of these, whether or not driven by wind;

b. Water or water-borne material which backs up through sewers or drains or which overflows or is discharged from a sump, sump pump or related equipment; or

c. Water or water-borne material below the surface of the ground, including water which exerts pressure on or seeps or leaks through a building, sidewalk, driveway, foundation, swimming pool or other structure; ….. caused by or resulting from human or animal forces or any act of nature.

The Court noted that the exclusion above related to water damage applied to damage caused by outside forces unrelated to the residence premises’ plumbing system.  As such, the Court held that “because the claimed loss in this case was caused by the deterioration of a pipe within the plumbing system, which caused water or water-borne material emanating from the residence premises’ plumbing system to back up into the residence premises,” the homeowner’s loss was a covered loss under the policy.

Moral of the Story: whether you are a homeowner that lives in Hollywood, Dania, Weston, Homestead, Plantation, Aventura, Miami Beach, Bal Harbour, Tamarac, Kendall, Boca Raton or another area within Miami, Fort Lauderdale or Palm Beach, if you sustain water or mold damage to your home due to a pipe beneath your floor or concrete slab that bursts due to deterioration or wear and tear, and if your homeowners insurance carrier denies your claim under the “wear and tear” exclusion, make sure you consult with a homeowners insurance damage claim attorney to verify whether your policy may provide you coverage notwithstanding the letter from your insurance carrier denying your claim.

Personal Injury Protection Benefits (PIP): Can an Insurance Carrier Require You to Submit to an EUO to Secure PIP Benefits?

So you are seriously injured in a motor vehicle accident when your car or motorcycle is rear ended by a truck, and you put your car insurance carrier on notice.  Part of the benefits that you may be entitled to (assuming you have PIP insurance)  include your personal injury protection coverage (also known as PIP benefits), which are no fault benefits (can include a mix of lost wages and payments for medical bills) that your auto insurance carrier will provide whether you are at fault for the car accident or not.

The legislature recently amended the PIP statute in 2012, ie., section 627.736, and included a provision to include the requirement that insureds seeking benefits under the Florida Motor Vehicle No–Fault Law “comply with the terms of the policy, which include, but are not limited to, submitting to an examination under oath.” 627.736(6)(g).  For more information on the PIP statutory amendment in 2012, see my prior article on some of the relevant changes.  A majority of this amendment is effective starting January 1, 2013.

So the question becomes, what happens if your accident occurred prior to the effective date of the new statute.  Prior to this amendment, while an insurance policy may have stated that in order to secure coverage under the policy, the insured may have been required to submit to an EUO (examination under oath – an examination akin to a deposition where the carrier investigates the accident, the extent of your injuries, etc.),  the PIP statute did not have this provision requiring them to comply with the terms of their policy.  As such, prior to this amendment, if your policy required you to possibly submit to an EUO in order to secure benefit sunder your policy, did that mean that if you failed to submit to a requested EUO, that the insurance carrier could simply deny you PIP benefits under your auto policy.  According to the Florida Supreme Court, an injured person’s failure to submit to an EUO did not cancel his or hers PIP coverage under their policy in order to secure no-fault benefits.

In the case of Nunez v. Geico Gen. Ins. Co., — So.3d —-, 2013 WL 3214401 (Fla. 2013), the Florida Supreme Court answered the above question in the negative. In Nunez, an insured of Geico was injured in a car accident in September of 2008, to which she made a claim for personal injury protection benefits.  When Geico denied her claim after failing to submit to an EUO, Nunez filed suit for declaratory relief, seeking a judgment that Geico violated the 2008 version of 627.736, Florida’s PIP statute.  The Florida Supreme Court held that because Nunez’s policy with Geico was issued in 2008, her accident was in 2008, and she filed her class action complaint in 2009, and because the amendment did not take effect until 2013 and that the purpose of the no-fault statutory scheme is to provide swift and virtually automatic payment, the Florida Supreme Court ruled that EUO conditions in Nunez’s insurance policy were invalid as contrary to the terms of section 627.736 (2008).

Moral of the Story: whether you live in Miami, Fort Lauderdale, Palm Beach or any other area of Florida, should you sustain injuries in a motor vehicle accident, car accident, trucking accident, motorcycle accident, or are even walking or on a bicycle and struck by a car (ie, a pedestrian accident), and your accident occurred prior to the PIP amendment that was effective in January of 2013, you may wish to secure a PIP or injury lawyer to assist you with a potential claim for improper denial of your car insurance benefits if you have been denied personal injury protection benefits given your failure to attend an examination under oath (EUO).