Florida Medical Malpractice Law: Common and Frequently Asked Questions Regarding Lawsuits For Injury or Wrongful Death Due to Doctor, Hospital or Nurse Medical Negligence

Florida Medical Malpractice Law _Statute of Limitations_fightsforyou.netIn the many hospitals in the State of Florida, as well as in the multitude of urgent care and personal injury clinics popping up, medical malpractice can happen in South Florida and all over the country. Medical malpractice involves negligence litigation where a hospital, doctor, nurse practitioner, dentist, psychiatrist, anesthesiologist or other medical provider violates the accepted standards of care (which requires expert testimony to prove such medical negligence at trial) and acts in a negligent manner, and which then leads to catastrophic injuries or even death.

Some of the most common injuries and causes of medical malpractice in the State of Florida can include the following:

  • Failing to properly deliver a baby or newborn resulting in birth-related injuries (including birth-related neurological injuries, cerebral palsy, shoulder dystocia, brachial plexus injuries, forceps or vacuum injuries, cystic fibrosis, cephalohematoma, subconjunctival hemorrhage, developmental delay, newborn persistent pulmonary hypertension, spinal cord injuries, jaundice, seizures, erb’s palsy, hypoxia (brain damage), nerve injury damage, paralysis, stillbirth, fetal distress, C-section issues, injuries to the mother (such as preeclampsia, and eclampsia in the mother) and other birth injuries;
  • Failure to listen to the patient and recognize symptoms;
  • Failure to examine a patient’s medical history;
  • Failure to interpret tests in a proper manner;
  • Ordering a wrong test for a patient;
  • Failing to monitor a patient after surgery or failing to provide the appropriate post surgical care (which can result in infections from catheters or infections at the surgical wound, sepsis, internal bleeding, necrosis of tissue, blood clots, deep vein thrombosis’, air embolisms and pulmonary embolisms);
  • Pharmacy and medication errors (involving the wrong dosage, wrong medication, label errors and insufficient medical history);
  • Surgical errors (such as leaving a surgical instrument in you, operating on the wrong body part, limb or patient, and post-surgical infections);
  • Leaving foreign objects or bodies in you after surgery (such as a sponge, clamp, plastic glove, surgical needle, forceps, tubing, medical device, etc.);
  • Improper care after a surgical procedure;
  • Lab test errors regarding tissue, blood or urine samples;
  • Failure of nurses, doctors, surgeons, interns or support staff to maintain hygiene and wash their hands;
  • Errors by a nurse practitioner;
  • Errors by a physicians assistant;
  • Errors by a midwife;
  • Errors by a medical doctor (M.D.), doctor of osteopath (D.O.), orthopedic, radiologist, gynecologist, obstetrician, cosmetic surgeon, plastic surgeon, neurologist, neurosurgeon, podiatrist, cardiologist, urologist, psychiatrist, etc.;
  • Errors in administering anesthesia during a surgical procedure;
  • Failing to diagnose, delayed diagnosis or misdiagnosis of a medical condition;
  • Failing to diagnose, delayed diagnosis or misdiagnosis of cancer (such as pancreatic cancer, breast cancer, cervical cancer, colon cancer, lung cancer, liver cancer, bone cancer, gall bladder cancer, gastrointestinal cancer, brain cancer, ovarian cancer, uterine cancer, bladder cancer, kidney cancer, lymphoma, mesothelioma, myeloma, thyroid cancer, prostate cancer, skin cancer (melanoma, basal cell or squamous cell), brain tumors, stomach cancer, testicular cancer and vaginal cancer);
  • Failing to diagnose, delayed diagnosis or misdiagnosis of stroke or heart attack symptoms;
  • Failing to diagnose, delayed diagnosis or misdiagnosis of diseases, viruses, blood disorders (leukemia) and blood infections;
  • Failing to diagnose, delayed diagnosis or misdiagnosis of blood clots, circulation problems and aneurysms;
  • Failing to diagnose, delayed diagnosis or misdiagnosis of bacterial  infections or viral infections;
  • Failing to fully evaluate, treat or monitor a patient;
  • Failing to properly sanitize medical and surgical instruments;
  • Errors involved in blood transfusions;
  • Errors regarding nerve blocks;
  • Errors involved in treating kidney problems (including dialysis errors);
  • Medical device issues involving the design, maintenance or manufacturing, ie., a product defect (can include heart devices, heart monitors, pacemakers, defibrillators, stents, drug-coated stents, drug-eluting stents, artificial valves, cardiac devices, radiological devices, artificial joints, Mirena IUD issues, bone implants (Medtronic Infuse Bone Graft) hip implants (metal on metal hip replacements, DePuy ASR hip implant, Stryker Rejuvenate and ABG II modular-neck stem implants or Zimmer Durom Cup hip replacement implant), jaw implants, breast implants, cosmetic implants, pain pumps, knee replacements (Zimmer NexGen knee implant), respiratory devices, Avaira contact lenses, surgical mesh, transvaginal mesh, Artelon CMC Spacer devices, Bard IVC filters, and hardware implantation for broken bone surgeries or spinal surgeries);
  • Dangerous and defective pharmaceutical drugs, ie., a product defect (can include such drugs as GranuFlo (NaturaLyte), Serzone, diethylstilbestrol (DES)/stilboestrol, Digitek, Tequin, Levaquin, Paxil, Trasylol, Claravis (Chantix), Vioxx, Actos, Ortha Evra, Baycol, Pradaxa, Fosomax, Allopurinol (Zyloprim), Topamax (Topiramate), Fen-Phen, Lexapro (escitalopram), phenylpropanolamine, Yasmin (Yaz or Ocella), Zoloft (sertraline), ;
  • Emergency room (ER) and hospital errors (due to the under-staffing, over-working and communication issues between medical personnel; vague discharge instructions; delayed treatment that causes fatalities or failure to follow up with the patient);
  • Errors involved in gastric bypass surgeries;
  • Errors involved in Lasik eye surgery;
  • Errors involved in dental surgery;
  • Lack of informed consent; and
  • Nursing home errors, neglect and abuse.

What is the Florida Statute of Limitations (ie., how much time a patient has to file a lawsuit) applicable under Florida medical malpractice law?

In general, Florida medical malpractice law states that a patient has two years to file a lawsuit due to a doctor’s or hospital’s negligence. According to Florida Statute 95.11(4)b), if someone sustains an injury or is killed due to the negligence of a Florida medical practitioner (ie., medical negligence), under Florida medical malpractice law, a Miami Florida medical malpractice attorney has two years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued, except that this 4-year period shall not bar an action brought on behalf of a minor on or before the child’s eighth birthday.

Under Florida medical malpractice law, an “action for medical malpractice” is defined as a claim in tort or in contract for damages because of the death, injury, or monetary loss to any person arising out of any medical, dental, or surgical diagnosis, treatment, or care by any provider of health care. In those actions covered by this paragraph in which it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury the period of limitations is extended forward 2 years from the time that the injury is discovered or should have been discovered with the exercise of due diligence, but in no event to exceed 7 years from the date the incident giving rise to the injury occurred, except that this 7-year period shall not bar an action brought on behalf of a minor on or before the child’s eighth birthday.

What damages can be secured if a patient is injured due to the medical negligence or medical malpractice of a Florida doctor, hospital, nurse or other medical practitioner?

Should a patient be injured as a result of medical malpractice and they hire a Hialeah Florida medical malpractice attorney, and a lawsuit is filed, the types of damages that can be secured can include:

  • pain and suffering (both past and future, such as for a future surgery);
  • disability;
  • disfigurement (such as scars and/or loss of a leg or other limb);
  • mental anguish (could include psychological damages);
  • loss of capacity for the enjoyment of life (one may not be able to do the same things you used to);
  • hospital, nurse or other medical expenses, both past and future (medical bills, insurance liens, EMS/ambulance bills, etc.);
  • loss of earnings or wages (if you miss work due to the injury or going to a doctors appointment; loss of sick or vacation time);
  • loss of ability to earn money in the future (whether you can no longer work, or cannot perform the same job you used to);
  • aggravation of a previously existing condition (if you had back or neck pain that is made worse);
  • Punitive damages (although the threshold to prove this type of damage is quite high, they can be awarded if the case is made that a doctor knowingly behaved in a harmful way that caused malpractice or negligence);
  • Wrongful death damages (assuming a death is caused by the medical malpractice or doctor negligence).

What is the definition of a healthcare provider covered under Florida’s Medical Malpractice Act?

According to Florida Statute 766.202(4), a healthcare provider means any hospital, ambulatory surgical center, or mobile surgical facility as defined and licensed under chapter 395; a birth center licensed under chapter 383; any person licensed under chapter 458 (medical doctor’s — ie., M.D.’s), chapter 459 (doctor of osteopath — D.O.’s), chapter 460 (chiropractor — D.C.), chapter 461, (podiatrist — ie., a foot doctor)  chapter 462 (naturopathic treaters such as dietetics, psychotherapist, hydrotherapist, etc.), chapter 463 (eye doctors – ie., optomestrist’s), part I of chapter 464 (nurses), chapter 466 (dentists), chapter 467 (midwifes), part XIV of chapter 468 (orthotics and/or prosthetics), or chapter 486 (physical therapists); a clinical lab licensed under chapter 483; a health maintenance organization certificated under part I of chapter 641; a blood bank; a plasma center; an industrial clinic; a renal dialysis facility; or a professional association partnership, corporation, joint venture, or other association for professional activity by health care providers.

What is the standard of care I would have to prove in a Miami Florida medical malpractice lawsuit or a Florida medical negligence lawsuit for injury or wrongful death caused by a doctor, physician or other medical provider’s medical negligence?

According to Florida Statute 766.102(1), in any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider as defined in s. 766.202(4), the claimant shall have the burden of proving by the greater weight of evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.

(2)(a) If the injury is claimed to have resulted from the negligent affirmative medical intervention of the health care provider, the claimant must, in order to prove a breach of the prevailing professional standard of care, show that the injury was not within the necessary or reasonably foreseeable results of the surgical, medicinal, or diagnostic procedure constituting the medical intervention, if the intervention from which the injury is alleged to have resulted was carried out in accordance with the prevailing professional standard of care by a reasonably prudent similar health care provider.

(b) The provisions of this subsection shall apply only when the medical intervention was undertaken with the informed consent of the patient in compliance with the provisions of s. 766.103.

(3)(a) As used in this subsection, the term:

1. “Insurer” means any public or private insurer, including the Centers for Medicare and Medicaid Services.

2. “Reimbursement determination” means an insurer’s determination of the amount that the insurer will reimburse a health care provider for health care services.

3. “Reimbursement policies” means an insurer’s policies and procedures governing its decisions regarding health insurance coverage and method of payment and the data upon which such policies and procedures are based, including, but not limited to, data from national research groups and other patient safety data as defined in s. 766.1016.

(b) The existence of a medical injury does not create any inference or presumption of negligence against a health care provider, and the claimant must maintain the burden of proving that an injury was proximately caused by a breach of the prevailing professional standard of care by the health care provider. Any records, policies, or testimony of an insurer’s reimbursement policies or reimbursement determination regarding the care provided to the plaintiff is not admissible as evidence in any medical negligence action. However, the discovery of the presence of a foreign body, such as a sponge, clamp, forceps, surgical needle, or other paraphernalia commonly used in surgical, examination, or diagnostic procedures, shall be prima facie evidence of negligence on the part of the health care provider.

(4) The Legislature is cognizant of the changing trends and techniques for the delivery of health care in this state and the discretion that is inherent in the diagnosis, care, and treatment of patients by different health care providers. The failure of a health care provider to order, perform, or administer supplemental diagnostic tests shall not be actionable if the health care provider acted in good faith and with due regard for the prevailing professional standard of care.

What is the standard of care I would have to prove in a Miami Florida medical malpractice lawsuit or a Florida medical negligence lawsuit for injury or wrongful death caused by an emergency room doctor, physician, nurse or other emergency room medical provider’s medical negligence, when responding to a sudden medical emergency?

According to Florida Statute 768.13 (Florida’s Good Samaritan law), an emergency room doctor or other personnel must act with a reckless disregard (could be willful or wanton conduct) to the consequences of their medical diagnosis and treatment.  Under Florida Statute 768.13(2)(a) and 2(b), any person, including those licensed to practice medicine, who gratuitously and in good faith renders emergency care or treatment either in direct response to emergency situations related to and arising out of a public health emergency declared pursuant to s. 381.00315, a state of emergency which has been declared pursuant to s. 252.36 or at the scene of an emergency outside of a hospital, doctor’s office, or other place having proper medical equipment, without objection of the injured victim or victims thereof, shall not be held liable for any civil damages as a result of such care or treatment or as a result of any act or failure to act in providing or arranging further medical treatment where the person acts as an ordinary reasonably prudent person would have acted under the same or similar circumstances.

Florida Statute 768.13(2)(b)(1) Any health care provider, including a hospital licensed under chapter 395, providing emergency services pursuant to obligations imposed by 42 U.S.C. s. 1395dd, s. 395.1041, s. 395.401, or s. 401.45 shall not be held liable for any civil damages as a result of such medical care or treatment unless such damages result from providing, or failing to provide, medical care or treatment under circumstances demonstrating a reckless disregard for the consequences so as to affect the life or health of another.

Florida Statute 768.13(2)(b)(3) For purposes of this paragraph, “reckless disregard” as it applies to a given health care provider rendering emergency medical services shall be such conduct that a health care provider knew or should have known, at the time such services were rendered, created an unreasonable risk of injury so as to affect the life or health of another, and such risk was substantially greater than that which is necessary to make the conduct negligent.

Florida Statute 768.13(2)(c)(1) Any health care practitioner as defined in s. 456.001(4) who is in a hospital attending to a patient of his or her practice or for business or personal reasons unrelated to direct patient care, and who voluntarily responds to provide care or treatment to a patient with whom at that time the practitioner does not have a then-existing health care patient-practitioner relationship, and when such care or treatment is necessitated by a sudden or unexpected situation or by an occurrence that demands immediate medical attention, shall not be held liable for any civil damages as a result of any act or omission relative to that care or treatment, unless that care or treatment is proven to amount to conduct that is willful and wanton and would likely result in injury so as to affect the life or health of another.

What is the definition of medical malpractice or medical negligence under Florida’s Medical Malpractice Act, Chapter 766 of the Florida Statutes?

According to Florida Statute 766.106(1)(a), a “Claim for medical negligence” or “claim for medical malpractice” means a claim arising out of the rendering of or the failure to render medical care or services.

Can I sue a hospital for the medical negligence of its employee’s or agents?

Yes.  Florida Court’s have opined that that the legislature, in enacting section 766.102, and the Medical Malpractice Reform Act in general, intended that the negligence of a hospital’s agents acting in the course of their employment should be treated as the negligence of the hospital, to which the hospital can be held vicariously liable.

What is informed consent and what is required of doctors and physicians under Florida law?

Florida Courts have noted that a physician has an obligation to advise his or her patient of the material risks of undergoing a medical procedure, and that unless a person knows the risks and dangers of such a procedure, “consent” does not represent a choice and is ineffectual under Florida law.

In fact, the Florida legislature has codified the doctrine of medical informed consent in general under Florida Statute 766.103, which states the following (this does not apply in a “Good Samaritan” situation for emergency medical care):

(3) No recovery shall be allowed in any court in this state against any physician licensed under chapter 458, osteopathic physician licensed under chapter 459, chiropractic physician licensed under chapter 460, podiatric physician licensed under chapter 461, dentist licensed under chapter 466, advanced registered nurse practitioner certified under s. 464.012, or physician assistant licensed under s. 458.347 or s. 459.022 in an action brought for treating, examining, or operating on a patient without his or her informed consent when:

(a) 1. The action of the physician, osteopathic physician, chiropractic physician, podiatric physician, dentist, advanced registered nurse practitioner, or physician assistant in obtaining the consent of the patient or another person authorized to give consent for the patient was in accordance with an accepted standard of medical practice among members of the medical profession with similar training and experience in the same or similar medical community as that of the person treating, examining, or operating on the patient for whom the consent is obtained; and

2. A reasonable individual, from the information provided by the physician, osteopathic physician, chiropractic physician, podiatric physician, dentist, advanced registered nurse practitioner, or physician assistant, under the circumstances, would have a general understanding of the procedure, the medically acceptable alternative procedures or treatments, and the substantial risks and hazards inherent in the proposed treatment or procedures, which are recognized among other physicians, osteopathic physicians, chiropractic physicians, podiatric physicians, or dentists in the same or similar community who perform similar treatments or procedures; or

(b) The patient would reasonably, under all the surrounding circumstances, have undergone such treatment or procedure had he or she been advised by the physician, osteopathic physician, chiropractic physician, podiatric physician, dentist, advanced registered nurse practitioner, or physician assistant in accordance with the provisions of paragraph (a).

(4)(a) A consent which is evidenced in writing and meets the requirements of subsection (3) shall, if validly signed by the patient or another authorized person, raise a rebuttable presumption of a valid consent.

(b) A valid signature is one which is given by a person who under all the surrounding circumstances is mentally and physically competent to give consent.

Do all Florida doctors and physicians have Florida medical malpractice insurance?

In general, no. According to Florida Statute 458.320, while doctors are required to have policies of insurance of $100,000 per claim or $300,000 in the aggregate (this requirement is $250,000 with an aggregate of $750,000, for a doctor or physician with staff privileges), just to practice medicine in this State, they can meet this requirement by proving they have other assets (such as letters of credit), or they can simply be able to respond to a judgment in the baseline amounts.  Doctors who avoid the Florida medical malpractice insurance requirement are also required to post a notice in their office in the form of a sign prominently displayed in the reception area and clearly noticeable by all patients or to provide a written statement to any person to whom medical services are being provided. Such sign or statement shall state: “Under Florida law, physicians are generally required to carry medical malpractice insurance or otherwise demonstrate financial responsibility to cover potential claims for medical malpractice. YOUR DOCTOR HAS DECIDED NOT TO CARRY MEDICAL MALPRACTICE INSURANCE. This is permitted under Florida law subject to certain conditions. Florida law imposes penalties against noninsured physicians who fail to satisfy adverse judgments arising from claims of medical malpractice. This notice is provided pursuant to Florida law.”

Moral of the Story: if you are injured or a wrongful death occurs due to medical malpractice, doctor medical negligence, nurse medical negligence, hospital medical negligence or other medical and healthcare professional type neglect, whether the Florida medical malpractice or Florida medical negligence happens in Deltona, Daytona, Fort Pierce, Brandon, Orlando, Lakeland, Tampa, Fort Myers, Naples, Jacksonville, Palm Coast, New Port Richey, Sarasota, Pensacola, Hollywood, Port Charlotte, Palm Beach Gardens, Panama City, Ocala, Cape Coral, Miami Gardens, Saint Augustine, Aventura, Miami Beach, Hialeah, Winter Park, Altamonte Springs, Port Orange, West Kendall, Homestead, the Florida Keys, Titusville, or another area within Miami, Fort Lauderdale or Palm Beach, or anywhere in Miami-Dade, Broward, Palm Beach or Monroe Counties, know that patients who are seriously and catastrophically injured in Florida medical malpractice and medical negligence accidents may have options available under Florida law that may require the retention of a Miami Florida medical malpractice lawyer, a Fort Lauderdale Florida medical malpractice birth-related injury attorney, a Palm Beach Florida failure to diagnose cancer lawyer, or a Miami Beach misdiagnosis medical negligence attorney, given the many complexities involved when injured due to medical malpractice and a doctors neglect, and the unknown of whether a Florida medical malpractice insurance claim is possible given Florida’s two year statute of limitations (SOL) for Florida medical malpractice claims.

Florida Bicycle Accident Law: What Florida Law Applies if Injured in a Bike or Pedestrian Accident?

Florida Bicycle Accident Law_fightsforyou.net

Dramatization/Actor – Not An Actual Event

Given that us Floridians and all of the out of state vacationers and non-residents take advantage of the wonderful weather down here in South Florida, we are always participating in activities such as water sports, boating, wave riding, ATV riding, skate boarding, in-line skating, rollerblading and bicycling. However fun these activities may be, they can involve substantial risks, most notably, bicycling on our public roads (given the few bike paths we have) wherein Florida bike riders have sustained catastrophic injuries, head injuries, neck injuries, leg injuries, knee injuries, ankle injuries, elbow injuries, brain injuries, spinal cord injuries, road rash, broken arms, fractured bones and sometimes even death.  Some of the most common causes of South Florida bicycle accidents include the following:

  • Being in a motor vehicle accident and getting hit by a car, truck, taxi, limo, van, bus or motorcycle;
  • Road defects (such as cracks, sand, gravel, road resurfacing, potholes, street grooves, uneven sidewalks, standing or pools of water, manhole imperfections and raised surfaces);
  • Debris in the roadways;
  • View obstructions (such as trees, bushes, parked cars and utility poles);
  • Running over railroad tracks;
  • A defective bicycle part or component (such as the tires, wheels, pedals, rims, brakes, chain, frame, handle bars or seat); and
  • Riding a bicycle under the influence of drugs or alcohol (ie. drunk).

When Miami Florida bicyclists or vacationers are involved in bicycle accidents (especially in resort and vacation areas such as South Beach, Miami Beach, Clearwater, Fort Lauderdale Beach, and Key West), some of the most common and frequently asked questions of a Miami Florida bicycle accident attorney or Florida Keys bicycle injury attorney include the following:

If I am in a Miami Florida bicycle accident and am hit by a car or truck because they were not paying attention or they failed to yield the right of way, what insurance can be applicable?

If you are struck by a car or truck, you MAY be entitled to personal injury protection benefits (PIP) from the driver or owner of the vehicle that hit you.  If you owned a vehicle at the time of the accident, then you would be able to claim your Florida personal injury protection benefits under your own car insurance policy. For more on Florida’s new personal injury protection (PIP) law, see my previous article.

You may also be entitled to additional insurance coverage if you had Florida uninsured motorist coverage or Florida underinsured motorist coverage, ie., Florida UM or UIM benefits, should the car or truck that hit you not have any insurance or they simply did not have enough to cover the medical bills and bicycle accident injuries sustained (ie., your pain and suffering).  You could also bring a liability lawsuit against the truck or car driver/owner should they have been negligent in causing or contributing to your bicycle accident.

If a car, truck, bus, motorcycle or limo does not strike my bicycle but causes me to swerve and I am injured in a Homestead Florida bicycle accident, can I still recover from the driver or owner of the motor vehicle?

Possibly.  In a bicycle accident of this sort, you can still pursue a liability lawsuit against the driver or owner of the vehicle who caused you to crash and sustain injuries, even if they did not make contact with your bicycle.  In fact, if the driver of the vehicle leaves the scene and this becomes a “hit and run” or “phantom vehicle” accident, you may still be able to pursue a claim against your own car insurer if you had Florida uninsured or underinsured motorist coverage. For an extensive discussion on Florida Uninsured and/or Underinsured Motorist Insurance Coverage, see my previous article.

What is the time limit (ie., the statute of limitations) for filing a Florida bicycle accident lawsuit arising out of the negligence of another bicyclist or a motor vehicle ?

Under Florida Statute 95.11(3)(a), the statute of limitations for negligence actions in the state of Florida is four years.

What is the time limit (ie., the statute of limitations) for filing a Florida bicycle accident lawsuit arising out of a defective bicycle part (ie., product liability)?

Under Florida Statute 95.11, the statute of limitations for product defect actions in the state of Florida is four years.

What is the definition of a bicycle under Florida law, in relation to Florida’s traffic laws?

According to Florida Statute 316.003(2), a bicycle is defined as every vehicle propelled solely by human power, and every motorized bicycle propelled by a combination of human power and an electric helper motor capable of propelling the vehicle at a speed of not more than 20 miles per hour on level ground upon which any person may ride, having two tandem wheels, and including any device generally recognized as a bicycle though equipped with two front or two rear wheels. The term does not include such a vehicle with a seat height of no more than 25 inches from the ground when the seat is adjusted to its highest position or a scooter or similar device. No person under the age of 16 may operate or ride upon a motorized bicycle.

What is the definition of a bicycle path under Florida law?

According to Florida Statute 316.003(63), a bicycle path is defined as any road, path, or way that is open to bicycle travel, which road, path, or way is physically separated from motorized vehicular traffic by an open space or by a barrier and is located either within the highway right-of-way or within an independent right-of-way.

As a Florida bike rider, do I have to obey the traffic laws as if I was a motor vehicle?

Yes.  According to Florida Statute 316.003, a bicycle is defined as a vehicle for purposes of Florida’s Uniform Traffic Control Law. As such, a cyclist must follow the traffic rules common to all drivers, as well as the rules adopted specially for bicycles.  According to Florida Statute 316.2065(1), a cyclist has all of the rights to the roadway applicable to any driver, except as to the special regulations for bicycles. Thus, a person riding a bicycle must obey all traffic control devices such as stop lights, stop signs, yield signs, railroad crossing signs, etc.

As a Florida bicycle rider, do I have to have a permanent seat attached to my bicycle?

Yes. According to Florida Statute 316.2065(2), a person operating a bicycle may not ride other than upon or astride a permanent and regular seat attached thereto.

How many people may ride on a bicycle under Florida law?

According to Florida Statute 316.2065(3)(a), a bicycle may not be used to carry more persons at one time than the number for which it is designed or equipped, except that an adult rider may carry a child securely attached to his or her person in a backpack or sling. Moreover,  a bicycle rider must carry any passenger who is a child under 4 years of age, or who weighs 40 pounds or less, in a seat or carrier that is designed to carry a child of that age or size and that secures and protects the child from the moving parts of the bicycle.

If I am under 16 years old, do I have to wear a bicycle helmet under Florida law?

Yes.  According to Florida Statute 316.2065(3)(d), a bicycle rider or passenger who is under 16 years of age must wear a bicycle helmet that is properly fitted and is fastened securely upon the passenger’s head by a strap and that meets the federal safety standard for bicycle helmets, final rule, 16 C.F.R. part 1203. A helmet purchased before October 1, 2012, which meets the standards of the American National Standards Institute (ANSI Z 90.4 Bicycle Helmet Standards), the standards of the Snell Memorial Foundation (1984 Standard for Protective Headgear for Use in Bicycling), or any other nationally recognized standards for bicycle helmets adopted by the department may continue to be worn by a bicycle rider or passenger until January 1, 2016. As used in this subsection, the term “passenger” includes a child who is riding in a trailer or semitrailer attached to a bicycle.

Under Florida law, if I am 16 years old or older, do I have to wear a bicycle helmet when operating a bicycle?

No.

Under Florida law, can I ride my bicycle while being pulled by a motor vehicle?

No.  According to Florida Statute 316.2065(4), no person riding upon any bicycle, coaster, roller skates, sled, or toy vehicle may attach the same or himself or herself to any vehicle upon a roadway.

If I am riding my bike on the street or roadway under the speed of traffic, can I still ride my bike on the roadway?

Yes.  According to Florida Statute 316.2065(5)(a), any person operating a bicycle upon a roadway at less than the normal speed of traffic at the time and place and under the conditions then existing shall ride in the lane marked for bicycle use or, if no lane is marked for bicycle use, as close as practicable to the right-hand curb or edge of the roadway except under any of the following situations:

1. When overtaking and passing another bicycle or vehicle proceeding in the same direction.

2. When preparing for a left turn at an intersection or into a private road or driveway.

3. When reasonably necessary to avoid any condition or potential conflict, including, but not limited to, a fixed or moving object, parked or moving vehicle, bicycle, pedestrian, animal, surface hazard, turn lane, or substandard-width lane, which makes it unsafe to continue along the right-hand curb or edge or within a bicycle lane. For the purposes of this subsection, a “substandard-width lane” is a lane that is too narrow for a bicycle and another vehicle to travel safely side by side within the lane.

If I am riding on a one-way street or highway, do I have to ride on the left hand edge of the road?

Yes.  According to Florida Statute 316.2065(5)(b), any person operating a bicycle upon a one-way highway with two or more marked traffic lanes may ride as near the left-hand curb or edge of such roadway as practicable.

Can I ride my bike along side more than one bike rider on a public street or roadway?

In general, no.  According to Florida Statute 316.2065(6), persons riding bicycles upon a roadway may not ride more than two abreast except on paths or parts of roadways set aside for the exclusive use of bicycles. Persons riding two abreast may not impede traffic when traveling at less than the normal speed of traffic at the time and place and under the conditions then existing and shall ride within a single lane.

If I ride my bike at night, do I need front lamps?

Yes. According to Florida Statute 316.2065 (7), every bicycle in use between sunset and sunrise shall be equipped with a lamp on the front exhibiting a white light visible from a distance of at least 500 feet to the front and a lamp and reflector on the rear each exhibiting a red light visible from a distance of 600 feet to the rear. A bicycle or its rider may be equipped with lights or reflectors in addition to those required by this section.

If I am riding a bicycle on a sidewalk or crosswalk, do I have the rights and duties of a pedestrian?

Yes.  According to Florida Statute 316.2065(9), a person propelling a vehicle by human power upon and along a sidewalk, or across a roadway upon and along a crosswalk, has all the rights and duties applicable to a pedestrian under the same circumstances.

If I am riding a bicycle on a sidewalk or crosswalk, do I have to yield the right of way to pedestrians?

Yes.  According to Florida Statute 316.2065(10), a person propelling a bicycle upon and along a sidewalk, or across a roadway upon and along a crosswalk, shall yield the right-of-way to any pedestrian and shall give an audible signal before overtaking and passing such pedestrian.

Under Florida law, if I am riding a bicycle on a sidewalk or crosswalk, do I have to watch out for roller skaters and skate boarders?

Yes.  According to Florida Statute 316.2065(11), no person upon roller skates, or riding in or by means of any coaster, toy vehicle, or similar device, may go upon any roadway except while crossing a street on a crosswalk; and, when so crossing, such person shall be granted all rights and shall be subject to all of the duties applicable to pedestrians.

Under Florida law, does my bike have to have brakes?

Yes.  According to Florida Statute 316.2065(13), every bicycle shall be equipped with a brake or brakes which will enable its rider to stop the bicycle within 25 feet from a speed of 10 miles per hour on dry, level, clean pavement.

If I am on vacation and rent a bicycle, if I am under 16 years old, do I need a helmet to rent a bike?

Yes.  According to Florida Statute 316.2065(15)(a), a  person may not knowingly rent or lease any bicycle to be ridden by a child who is under the age of 16 years unless:

1. The child possesses a bicycle helmet; or

2. The lessor provides a bicycle helmet for the child to wear.

If I am required to wear a bicycle helmet under Florida law and do not wear one, am I considered to be comparatively at fault for causing the accident if I file a lawsuit for damages arising out of a Florida bicycle accident?

No.  According to Florida Statute 316.2065(18), the failure of a person to wear a bicycle helmet or the failure of a parent or guardian to prevent a child from riding a bicycle without a bicycle helmet may not be considered evidence of negligence or contributory negligence.

If a car, truck or other motor vehicle attempts to pass me while riding a bicycle, how much distance are they required to have between the car and me?

According to Florida Statute 316.083, the driver of a vehicle overtaking a bicycle or other nonmotorized vehicle must pass the bicycle or other nonmotorized vehicle at a safe distance of not less than 3 feet between the vehicle and the bicycle or other nonmotorized vehicle.

Under Florida law, can I wear a headset or Ipod while riding my bicycle?

No.  According to Florida Statute 316.304, a bicyclist may not wear a headset, headphone, or other listening device other than a hearing aid when riding. Wearing a headset can not only distract you from other vehicles on the road, it also prevents you from hearing other vehicles on the road such as when they honk, brake, etc.

If I am riding a bike and need to make a left turn at an intersection, what does Florida law require me to do?

According to Florida Statute 316.151 (1), a bicyclist intending to make a vehicle left turn is entitled to full use of the lane from which the turn is made. After scanning, signaling, and moving to the center of that lane, the bicyclist must check the signal, then proceed when it is green and safe to do so. However, a bicyclist may proceed through the right-most portion of the intersection and turn as close to the curb or edge as possible at the far side. After complying with any official traffic control device, the bicyclist may proceed in the new direction.

Under Florida law, how do I signal if I intend to make a left or right turn?

According to Florida Statute 316.155 and 316.157, a signal of intention to turn must be given during the last 100 feet traveled by the vehicle before turning. If a bicyclist needs both hands for control, the signal need not be given continuously. A bicyclist may signal intent to turn left or right by extending the left hand and arm upward (left) or by extending the right hand and arm horizontally to the right side of the bicycle (right). If you intend to stop your bicycle or suddenly reduce speed, you can by extending the left hand and arm downward.

Under Florida law, can I ride my bicycle on a highway or limited access facility?

No.  According to Florida Statute 316.091, so person shall operate a bicycle on a limited access facility or an interstate highway. Moreover, no person shall operate a bicycle on the roadway or along the shoulder of a limited access highway, including bridges, unless official signs and a designated, marked bicycle lane are present at the entrance of the section of highway indicating that such use is permitted pursuant to a pilot program of the Department of Transportation.

Moral of the Story: if you are a Florida resident, tourist, vacationer or non-resident and are injured in a bicycle accident, whether the Florida bicycle or pedestrian accident happens in Cutler Bay, Daytona, Fort Pierce, Orlando, Port St. Lucie, Tampa, Fort Myers, Naples, Jacksonville, Sarasota, Bradenton, Hollywood, Port Charlotte, Palm Beach Gardens, Pensacola, Ocala, Cape Coral, Saint Augustine, Aventura, Miami Beach, Hialeah, Gainsville, Palm Coast, Port Orange, West Kendall, Homestead, the Florida Keys, Cutler Ridge, or another area within Miami, Fort Lauderdale or Palm Beach, or anywhere in Miami-Dade, Broward, Palm Beach or Monroe Counties, know that bike riders who are seriously injured in Florida bicycle accidents may have options available under Florida law that may require the retention of a Miami Florida bicycle accident lawyer or a Florida pedestrian accident injury lawyer, given the many complexities involved when injured in a bicycle crash and the unknown of whether a Florida bicycle accident insurance claim is possible.

Chipped Tile Insurance Claims: Are They Excluded Under My Florida Homeowners Insurance Policy?

Florida Chipped Tile Insurance Claims_fightsforyou.netWhether you live in North Florida, Central Florida or South Florida, “chipped tile” or “broken tile” claims are rampant in this state and in such an abundance, its very similar to the way gold mining was in California during the 1800’s. However, these chipped tile insurance claims took a huge hit earlier this year in a Florida Court decision that likely upset many of the property damage restoration contractors, public adjusters and even some Miami, Florida chipped tile insurance claim attorneys, wherein these chipped or broken tile damage claims makeup a good part of their business. In the case of  Ergas v. Universal Property and Cas. Ins. Co., 114 So.3d 286 (Fla. 4th DCA 2013), the Fourth District Court of Appeal (governs Broward and Palm Beach Counties), ruled that a homeowner who dropped a hammer on their tile floor causing chips or damage to same, that this chipped tile or broken tile damage was excluded under their Florida homeowners insurance policy under the “marring exclusion.”

The insured’s homeowners insurer, Universal Property and Casualty, denied their chipped tile damage claim under the “marring exclusion” within their Florida insurance policy, to which the trial court granted summary judgment to Universal (who argued that the chipped tile constituted “marring” and thus was excluded in the insurance policy) and dismissed the insured’s lawsuit for insurance coverage under their policy.  The policy stated the following: Section I: We insure against risk of direct loss to property … We do not insure, however, for loss: … 2. Caused by: … (e) Any of the following: (1) Wear and tear, marring, deterioration…. Of note, Universal argued that “marring” was not ambiguous because it could mean either a sudden act or one that took place over time….and interpreted the word to mean any damage at any time that made the property less than perfect.  The insured argued that the damage caused by dropping the hammer was sudden and thus came within the coverage of the insurance policy.

The Fourth District noted that the Florida insurance policy at issue was an “all risk policy” that covered all fortuitous losses, although it did not cover all conceivable losses.  The Court further went on to hold that  the “chipped tile” damage caused by the hammer dropping constituted marring and thus was excluded from policy coverage, to which they thus affirmed the final summary judgment entered by the trial court.

Moral of the Story: if you are a South Florida homeowner (whether a townhouse, home, condo, duplex, triplex or the like) and happen to damage, break or chip the tile, marble or granite floors in your residence (could be by dropping a hammer, plate or any other type of object), whether you live in Hollywood, Pensacola, Ocala, Cape Coral, Saint Augustine, Aventura, Miami Beach, Hialeah, Gainsville, Palm Coast, Port St Lucie, Port Orange, West Kendall, Homestead, the Florida Keys, Cutler Ridge, Palmetto Bay, Daytona, Orlando, Tampa, Fort Myers, Naples, Jacksonville, Stuart, Jupiter or another area within Miami, Fort Lauderdale or Palm Beach, or anywhere in Miami-Dade, Broward, Palm Beach or Monroe County, know that you if you hire a Miami, Florida chipped tile insurance claim attorney to handle your denied chipped tile insurance claim, according to this new opinion out of the Fourth District Court of Appeal, you may be fighting an uphill battle given this chipped tile or marble damage could be considered excluded under your Florida Homeowners insurance policy under the “marring” exclusion.

Florida Workers’ Compensation Law: Most Common and Frequently Asked Questions (FAQ) for Employees Injured at Work, Regarding Florida Workers Compensation Claims and Benefits

Worker Compensation FormUnfortunately, workplace accidents happen on the job every day down in Miami and throughout the rest of South Florida, for which employees are injured and require medical care to get them back to health.  When this occurs, Florida has a no fault system to protect an injured workers rights — the system provides the ability for an employee that sustains a work-related injury to recover money and remuneration in order to pay their medical bills and lost wages.  What is this system or workers’ rights called — this is Florida’s Workers’ Compensation Law under Chapter 440 of the Florida Statutes.

To check and see if your employer has workers compensation insurance, you can access the Florida Division of Workers’ Compensation’s Proof of Coverage Database at https://apps8.fldfs.com/proofofcoverage/Search.aspx.

If you are injured on the job as a result of a Miami work accident, and you are unsure how to proceed, you may wish to retain a Florida workers compensation lawyer to assist you in your claim.  For more information on Florida workers compensation insurance and third party liability claims arising out of a Florida workplace accident injury, see my prior article on Florida Workplace Accident Law and On The Job Injuries.  The following are some of the most common and frequently asked questions regarding Florida workers compensation law and Miami Florida workers compensation claims, for Florida employees hurt at work due to work-related accidents:

Does Florida workers compensation law allow me to sue my employer for pain and suffering damages arising out of my Florida work accident injury?

In general, no, your employer has immunity from suit under Chapter 440 of the Florida Statutes, provided they have workers compensation insurance to provide you benefits in case of an on the job injury.  There are some exceptions to this general rule, and they are discussed in my prior article on Florida Workplace Accident Law and On The Job Injuries.

Under Florida workers compensation law, what workers compensation benefits are generally provided for my Florida workplace injury?

In general, Florida’s workers compensation law provides the injured employee with benefits to cover a portion of their lost wages, as well as their medical bills and treatment, and if a worker is killed on the job in a Florida workplace accident, the worker’s estate or family members can recover death benefits and funeral expenses.  However, benefits for an injured employee’s pain and suffering are not provided for under Florida law.

How long after a Florida work-related accident do I have to report it to my employer?

30 days – Pursuant to Florida statute 440.185(1)  – Notice of injury or death – An employee who suffers an injury arising out of and in the course of employment shall advise his or her employer of the injury within 30 days after the date of or initial manifestation of the injury. Failure to so advise the employer shall bar a petition under this chapter unless:

(a) The employer or the employer’s agent had actual knowledge of the injury;

(b) The cause of the injury could not be identified without a medical opinion and the employee advised the employer within 30 days after obtaining a medical opinion indicating that the injury arose out of and in the course of employment;

(c) The employer did not put its employees on notice of the requirements of this section by posting notice pursuant to s. 440.055; or

(d) Exceptional circumstances, outside the scope of paragraph (a) or paragraph (b) justify such failure.

When should my employer report the workplace injury to their insurance company?

Within 7 days – Pursuant to Florida Statute 440.185(2), your employer shall report such injury or death to its carrier within 7 days after actual knowledge of your injury or death, and shall provide a copy of such report to the employee or the employee’s estate.  Normally, the first step is after initial notice of the work injury, the employee will be asked to assist in filling out a First Report of Injury or Illness, which basically sets forth a description of the Florida work accident, it will include the employer and employee’s information, it will identify the workers compensation insurance carrier, it will specify the first date of employment and the last day worked, it will specify the work accident injury incurred and the part of the body affected, and it will specify the wage scheme of how you are paid (ie., bi-weekly, etc.) and whether you your employer will be paying your wages instead of you receiving Florida workers comp benefits (since the incident occurred).

Under Florida workers compensation law, is my employer’s insurance carrier required to provide me information on Florida workers compensation law after being notified of my work -related injury?

Yes. Pursuant to Florida Statute 440.185(4), the carrier shall mail to the injured worker within 3 days after the employer or the employee informs the carrier of an injury an informational brochure approved by the department which sets forth in clear and understandable language an explanation of the rights, benefits, procedures for obtaining benefits and assistance, criminal penalties, and obligations of injured workers and their employers under the Florida Workers’ Compensation Law.

My employer will not report my Florida work accident injury to the insurance company. What can I do?

An employee who sustains a workplace injury has the right to report the injury to their insurance company. Moreover, pursuant to Florida Statute 440.185(11), upon receiving notice of an injury from an employee under subsection (1), the employer or carrier shall provide the employee with a written notice, in the form and manner determined by the department by rule, of the availability of services from the Employee Assistance and Ombudsman Office. The substance of the notice to the employee shall include:

(a) A description of the scope of services provided by the office.

(b) A listing of the toll-free telephone number of, the e-mail address, and the postal address of the office.

(c) A statement that the informational brochure referred to in subsection (4) will be mailed to the employee within 3 days after the carrier receives notice of the injury.

(d) Any other information regarding access to assistance that the department finds is immediately necessary for an injured employee.

Under Florida workers compensation law, am I entitled to Florida workers compensation benefits if injured on the job as a police officer, firefighter, emergency medical technician, or paramedic?

Yes. According to Florida Statute 440.091, if you are a law enforcement office, firefighter, emergency medical personnel or paramedic and sustain a work injury while in the course and scope of employment, you should be entitled to workers compensation benefits from your civic employer.  This may include when you are injured when driving to and from work, if injured while at lunch, etc.

Am I entitled to workers compensation benefits under Florida law if I am injured in a car accident, truck accident, moped accident, scooter accident, motorcycle accident or other type of motor vehicle accident, while I’m on the job and working in the course and scope of my employment?

Yes. Employees generally are covered under Florida’s Workers Compensation Act when they are injured in the course and scope of their employment, including employees who are required to travel as part of their job.  This could include air conditioning contractors, electrical contractors, construction site personnel, plumbers, engineers, pizza delivery contractors, paper delivery contractors, food and product delivery personnel, and really any other worker or employee who is required to travel in connection with his/her employment, and who suffers an injury while driving during the course of performing their work.

What kind of medical treatment am I entitled to after a Florida workplace accident?

According to Florida Statute 440.13(2), you are entitled to such medically necessary remedial treatment, care, and attendance (of any authorized provider), including medicines, medical supplies, durable medical equipment, orthoses, prostheses, and other medically necessary apparatus. You are also entitled to work-hardening programs or pain-management programs when such care is given based on a referral by a physician.  It should be noted that medically necessary treatment, care, and attendance does not include chiropractic services in excess of 24 treatments or rendered 12 weeks beyond the date of the initial chiropractic treatment, whichever comes first, unless the carrier authorizes additional treatment or the employee is catastrophically injured.

Can I recover Florida workers compensation benefits for a mental or nervous Injury due to my work-related accident?

Yes.  Under Florida Statute 440.093 – Mental and Nervous Injuries, if you have a physical injury that requires medical treatment, and the injury is accompanied by a mental or nervous injury due to stress, fright, or excitement, so long as the mental nervous injury is linked to the compensable physical trauma by a licensed psychiatrist. The compensable physical injury must be and remain the major contributing cause of the mental or nervous condition and the compensable physical injury as determined by reasonable medical certainty must be at least 50 percent responsible for the mental or nervous condition as compared to all other contributing causes combined. Compensation is not payable for the mental, psychological, or emotional injury arising out of depression from being out of work or losing employment opportunities, resulting from a preexisting mental, psychological, or emotional condition or due to pain or other subjective complaints that cannot be substantiated by objective, relevant medical findings.

It should be noted that a physical injury resulting from mental or nervous injuries unaccompanied by physical trauma requiring medical treatment shall not be compensable under this chapter.

What happens if my employer refuses to pay for my initial medical care and treatment arising out of my work-related injury?

According to Florida Statute 440.13(2)(c), if the employer fails to provide initial treatment or care after a request by the injured employee, the employee may obtain such initial treatment at the expense of the employer, if the initial treatment or care is compensable and medically necessary and is in accordance with established practice parameters and protocols of treatment as provided for in this chapter. There must be a specific request for the initial treatment or care, and the employer or carrier must be given a reasonable time period within which to provide the initial treatment or care. However, the employee is not entitled to recover any amount personally expended for the initial treatment or care unless he or she has requested the employer to furnish that initial treatment or service and the employer has failed, refused, or neglected to do so within a reasonable time or unless the nature of the injury requires such initial treatment, nursing, and services and the employer or his or her superintendent or foreman, having knowledge of the injury, has neglected to provide the initial treatment or care.

Under Florida workers compensation law, do I have to pay any of my medical bills due to me being hurt at work?

No.  According to Florida Statute 440.13(3)(g) and section (13), all authorized medical bills are to be submitted by the medical provider to your employer’s insurance company for payment, and in general, the injured employee is not liable for payment for medical treatment or services provided.

Will I be paid if I lose time from work due to my work-related injury?

Possibly.  According to Florida Statute 440.12(1), you can not recover lost wages for the first seven days of your employment related disability, although if you lose time from work because your disability extends to over 21 days, you are entitled to lost wages from the date your work related injury or disability started (which would include the first 7 days).

How much will I be paid in lost wages if I lose time from work due to a Florida work accident and have a permanent total disability?

According to Florida Statute 440.15(1), you are to be paid 66 2/3 percent of your average weekly wages (under section 440.14, average weekly wages is essentially what you make from all employment during any given week in the thirteen weeks before the work accident occurred) during the continuance of such total disability. However, it should be noted that no compensation will be payable  if the employee is engaged in, or is physically capable of engaging in, at least sedentary employment.

It should also be noted that according to Florida Statute 440.15(1)(b), the following injuries are considered to be a permanent total disability arising out of a work accident (this is not applicable if you are physically capable of engaging in at least sedentary employment within a 50-mile radius of your residence):

1. Spinal cord injury involving severe paralysis of an arm, a leg, or the trunk;

2. Amputation of an arm, a hand, a foot, or a leg involving the effective loss of use of that appendage;

3. Severe brain or closed-head injury as evidenced by:

a. Severe sensory or motor disturbances;

b. Severe communication disturbances;

c. Severe complex integrated disturbances of cerebral function;

d. Severe episodic neurological disorders; or

e. Other severe brain and closed-head injury conditions at least as severe in nature as any condition provided in sub-subparagraphs a.-d.;

4. Second-degree or third-degree burns of 25 percent or more of the total body surface or third-degree burns of 5 percent or more to the face and hands; or

5. Total or industrial blindness.

How much will I be paid in lost wages if I lose time from work due to a Florida work accident and have a temporary total disability?

According to Florida Statute 440.15(2)(a), you are to be paid 66 2/3 percent of your average weekly wages although in general this is not to exceed 104 weeks. However, an employee who has sustained the loss of an arm, leg, hand, or foot, has been rendered a paraplegic, paraparetic, quadriplegic, or quadriparetic, or has lost the sight of both eyes is to be paid temporary total disability benefits of 80 percent of her or his average weekly wage, these payments will generally not extend beyond 6 months from the date of the accident.  It should be noted that such benefits shall not be due or payable if the employee is eligible for, entitled to, or collecting permanent total disability benefits.

How much will I be paid in lost wages if I lose time from work due to a Florida work accident and have a temporary partial disability?

According to Florida Statute 440.15(4)(a), you are to be paid 80 percent of the difference between 80 percent of your average weekly wage and the salary, wages, and other remuneration you are able to earn post-injury although these weekly temporary partial disability benefits may not exceed an amount equal to 66 2/3 percent of your average weekly wage at the time of accident.  Of note, according to 440.15(e), these benefits are to be paid during the continuance of your disability although they are not to exceed a period of 104 weeks.  Moreover, once you reach the maximum number of weeks, temporary disability benefits cease and your permanent impairment must be determined.

How much will I be paid in lost wages if I lose time from work due to a Florida work accident and have a permanent impairment?

According to Florida Statute 440.15(3)(a), once you have reached the date of maximum medical improvement, impairment benefits are due and payable within 14 days after the carrier has knowledge of the impairment.  Moreover, according to 440.15(3)(c), you are paid biweekly at the rate of 75 percent of your average weekly temporary total disability benefit, although such benefits shall be reduced by 50 percent for each week in which you have earned income equal to or in excess of your average weekly wage.

Under Florida workers compensation law, how much time does my employer’s insurance carrier have to pay me my benefits for total disability or death arising out of a Florida workplace injury?

In general, 14 days after the employer receives notice of the injury or death. According to Florida Statute 440.20(2)(a), the carrier must pay the first installment of compensation for total disability or death benefits or deny compensability no later than the 14th calendar day after the employer receives notification of the injury or death, when disability is immediate and continuous for 8 calendar days or more after the injury. If the first 7 days after disability are nonconsecutive or delayed, the first installment of compensation is due on the 6th day after the first 8 calendar days of disability.  In fact, under subsection (6)(a), if any installment of compensation for death or dependency benefits, or compensation for disability benefits payable without an award is not paid within 7 days after it becomes due, a penalty is to be added of an amount equal to 20 percent of the unpaid installment.

Can I get disability or death benefits arising out of an occupational disease caused by my work?

Yes.  According to Florida Statute 440.151(1)(a), the disablement or death of an employee resulting from an occupational disease shall be treated as the happening of an injury by accident, and to which the employee or, in case of death, the employee’s dependents, shall be entitled to compensation under Chapter 440.  In fact,  under 440.151(c), even if an occupational disease is aggravated by any other disease or infirmity which is not itself compensable, or where disability or death from any other cause that is not itself compensable is aggravated, prolonged, accelerated or in anywise contributed to by an occupational disease, you are entitled to compensation only if the occupational disease is the major contributing cause of the injury.

Under Florida workers compensation law, how much can my estate or family members get in death benefits for an employee being killed in an on the job Florida workplace accident?

According to Florida Statute 440.16, your estate and/or family member can receive up to $150,000 in death benefits, along with up to $7,500 in funeral expenses.

Can I get disability or death benefits due to a subsequent accident or injury or an aggravation of a prior injury?

Yes. According to Florida Statute 440.15(5)(a),  the fact that you have suffered a previous disability, impairment, anomaly, or disease, or received workers compensation as a result of same, this does not prevent you as an employee injured on the job from getting workers compensation benefits for a subsequent aggravation or acceleration of the pre-existing condition or preclude benefits for death resulting therefrom.  However, no benefits are payable if you at the time of entering into your employment, falsely represent in writing as not having previously been disabled or compensated because of such previous disability, impairment, anomaly, or disease and your employer detrimentally relies on this misrepresentation.

Can I still get disability benefits for a temporary partial disability if I leave my previous employer and get a new job?

Yes. According to Florida Statute 440.15(7), if you are injured on the job and receive compensation for temporary partial disability, if you leave the employment of the employer by whom you were employed at the time of your accident for which such compensation is being paid, you can still get benefits for you prior accident provided you provide your old employer an affidavit in writing containing the name of your new employer, the place of employment, and the amount of wages being received at such new employment — until you give such an affidavit, your compensation for temporary partial disability will cease.

When will I get my first check after my Florida work-related injury?

As stated above, according to Florida Statute 440.20, an injured worker should receive their  first benefits check within 21 days after the injury is reported to the employer.

If I am only temporarily disabled, how long can I receive my benefit checks for?

As stated above, according to Florida Statute 440.15(2) and 440.15(4), you can receive temporary total or temporary partial disability payments during your disability for no more than a maximum of 104 weeks.

Under Florida workers compensation law, can I receive social security benefits and Florida workers’ compensation benefits at the same time?

Yes. According to Florida Statute 440.15(9), you can receive both sets of benefits at the same time although you cannot receive combined benefits that exceeds 80 percent of your average weekly wage.

Under Florida workers compensation law, can I receive Florida unemployment compensation benefits and Florida workers’ compensation total disability benefits at the same time?

No. According to Florida Statute 440.15(10)(a), no workers compensation benefits shall be payable for temporary total disability or permanent total disability while you are injured and your are receiving reemployment assistance or unemployment compensation benefits.

Can I receive Florida unemployment compensation and Florida workers’ compensation temporary partial disability benefits at the same time?

Yes.  According to Florida Statute 440.15(10)(b), if you are entitled to temporary partial benefits and reemployment assistance or unemployment compensation benefits, such reemployment assistance or unemployment compensation benefits shall be primary and the temporary partial benefits shall be supplemental only — the sum of the two benefits are not to exceed the amount of temporary partial benefits which would otherwise be payable.

What can I do if I am not receiving my benefit check after my work-related injury?

If you are an employee injured in a workplace accident on the job, and you are not receiving your benefit check, you can simply call your employer or your employer’s insurance carrier.

For the time period that I am receiving disability benefits and am unable to return to work , does my employer have to hold my job for me?

No, your employer is not required to hold your job position while you are receiving workers compensation benefits.  Moreover, Florida is an at-will employee job state which means that your employer can let you at any time whether it is for cause or not.

Can my employer fire me simply because I am unable to return to work because of an on the job injury and am receiving workers’ compensation benefits?

No.  According to Florida Statute 440.205, no employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee’s valid claim for compensation or attempt to claim compensation under Florida’s Workers’ Compensation Law.

If I am having difficulty getting a prescription filled or I am having problems with the pharmacy where I get my workers’ compensation medication, what can I do?

According to Florida Statute 440.13(3)(j), an employee injured on the job in Florida has the right to select a pharmacy or pharmacist — Florida law expressly forbids the department, an employer, a carrier, or any agent or representative of the department, employer, or a carrier, from selecting a pharmacy or pharmacist which the sick or injured employee must use.  Thus, if you have problems with your chosen pharmacy, you can simply choose another pharmacy to fill your prescriptions.

My employer and the insurance company have denied my claim for workers’ compensation benefits. Do I need legal representation (ie., a Florida workers compensation denied claim attorney or lawyer) to get my disability or death benefits?

If you are hurt or work, sustain an on the job injury, sustain a workplace  injury or disease or are killed at work, and your claim for Florida workers compensation disability or death benefits is denied, delayed or underpaid, you can inquire with a Florida workers compensation attorney or lawyer to assist you in your process.

What is the time limit (ie., the statute of limitations for Florida workers compensation claims before a Judge of Compensation Claims) for filing a Petition for Benefits?

In general, the statute of limitations for Florida workers compensation lawsuits is two (2) years from the date of injury.  According to Florida Statute 440.19(1), all employees petition for benefits is barred unless the employee, or the employee’s estate if the employee is deceased, has advised the employer of the injury or death pursuant to 440.185(1) — ie., within thirty days of the injury, and the petition is filed within 2 years after the date on which the employee knew or should have known that the injury or death arose out of work performed in the course and scope of employment.  Of note, if the injury claimed is an occupational disease (such as black lung, asbestosis, mesothelioma, etc.), the Florida statute of limitations for these types of Florida work injury claims begins to run from the date of disability and not the date on which the accident or the contraction of the disease took place.

If I get Florida workers compensation benefits, are creditors able to take a portion of my checks to pay my debts?

No.  According to Florida Statute 440.22, your Florida workers compensation disability or death benefits received under Chapter 440, are exempt from all claims of creditors, and from levy, execution and attachments or other remedy for recovery or collection of a debt, which exemption may not be waived. However, the exemption of workers’ compensation claims from creditors does not extend to claims based on an award of child support or alimony.

If I lose my claim for Florida workers compensation benefits, can I appeal an Order entered by a Judge of Compensation Claims?

Yes.  According to Florida Statute 440.271, any review of an order by a judge of compensation claims is to be by appeal to the District Court of Appeal, First District. Appeals shall be filed in accordance with rules of procedure prescribed by the Supreme Court for review of such orders.

Can my Miami Florida workers compensation claim lawyer recover attorney’s fees if I am forced to file a petition for benefits arising out of my workplace accident?

Yes. According to Florida Statute 440.34(1), a claimant’s attorney may recover an attorney’s fee approved by a judge of compensation claims for benefits secured on behalf of a claimant, said fee which must be equal to 20 percent of the first $5,000 of the amount of the benefits secured, 15 percent of the next $5,000 of the amount of the benefits secured, 10 percent of the remaining amount of the benefits secured to be provided during the first 10 years after the date the claim is filed, and 5 percent of the benefits secured after 10 years. Of note, a retainer agreement between an injured employee and their Florida workers compensation claim attorney, as to fees and costs, may not be for compensation in excess of the amount allowed under this section.

Under Florida workers compensation law, can I get a lump sum settlement from my Florida workers compensation claim, arising out of my work-related accident or work-related injury?

Yes. If an injured worker due to a Florida work accident hires a Miami Florida workers compensation claim lawyer and they file a workers compensation claim (ie., a petition for benefits), lump sum settlements may be entered into with their employer whether the claimant is represented by counsel or not.  According to Florida Statute 440.20(11)(a) and (b), when a claimant is not represented by counsel, a lump-sum payment can be made in exchange for the employer’s or carrier’s release from liability for future medical expenses, as well as future payments of compensation expenses and any other benefits provided under this chapter.  In this situation, the employer or carrier may not pay any attorney’s fees on behalf of the claimant for any settlement unless expressly authorized elsewhere in chapter 440.  According to Florida Statute 440.20(11)(c), where the employee is represented by a Florida workers compensation claim lawyer, the claimant may waive all rights to any and all benefits under this chapter by entering into a settlement agreement releasing the employer and the carrier from liability for workers’ compensation benefits in exchange for a lump-sum payment to the claimant. The settlement agreement requires approval by the judge of compensation claims only as to the attorney’s fees paid to the claimant’s attorney by the claimant.

If I settle my Florida workers compensation claim for medical benefits with my employer’s insurance company and my work injury condition gets worse after my settlement, who pays for my future medical care or surgeries?

Once you settle your claim, you release your employer and their workers compensation insurance carrier from any further liability or responsibility due to your workplace injury.  As such, in this instance, you would be responsible for all future medical care and needs once you settle your claim for medical benefits.

Can I get Florida workers compensation benefits to cover me for my pain and suffering related to my Florida work accident injury?

No. Florida’s workers compensation law only provides the injured worker with benefits to cover lost wages and medical bills from an authorized medical provider. For an explanation of how an injured worker can recover pain and suffering damages arising out of their Florida work accident, see my prior article on Florida Workplace Accident Law and On The Job Injuries.

Should I use my health insurance to cover my medical bills related to my on the job injury?

No. In general, Florida’s worker compensation benefits provide for the covering of an injured employee’s medical care by an authorized medical provider.  Thus, if you choose to go to your own doctors, and these doctors are not authorized by your employers workers compensation carrier, you will likely be responsible for paying those medical  bills.

In Florida, workers, contractors and employees are injured on the job on a daily basis as a result of workplace accidents and injuries on the job. Some of Florida’s most prominent employers where work-related accidents can happen include the following places:

  • Supermarkets: Publix, Albertsons, Winn-Dixie, Sedanos Supermarket, Food Lion, Presidente, Whole Foods, Save A Lot, Stop & Shop, Fresh Market, Sweetbay Supermarket, and Walmart Supercenter.
  • Shopping and strip malls: Florida Mall, Dadeland Mall, Broward Mall, Boynton Beach Mall, Sawgrass Mills, Bayside Market Place, The Falls, Las Olas Shops, Dolphin Mall, Mall of the Americas, Aventura Mall, Mall at Millenia, Downtown Disney Marketplace and Shops, The Shops at Sunset Place, Orlando Premium Outlets, Southland Mall, Merrick Park, Festival Bay Mall and Factory Outlet Malls.
  • Restaurants: Applebee’s, Mcdonald’s, Subway, Olive Garden, Red Lobster, Chilli’s, Red Robin, Burger King, Wendy’s, Buffalo Wild Wings, Arby’s, Taco Bell, Chipotle, Domino’s Pizza, Pizza Hut, Papa John’s, Krispy Kreme, Cracker Barrel, Outback Steakhouse, Panera Bread, Starbucks and Kentucky Fried Chicken (KFC).
  • Pharmacies: CVS, Walgreens and others.
  • Electronic retail stores: Brandsmart, Best Buy, HH Greg, Tiger Direct, Sears, Rent A Center, AT & T Retail Outlets, Verizon Wireless Retail Outlets and RadioShack.
  • Hardware stores: Home Depot, Lowe’s and Ace Hardware.
  • Convenience Stores: Super K, Farm Stores and 7-Eleven.
  • Gas Stations: Chevron, Citgo, Shell, Exxon-Mobil, British Petroleum, Valero, U-Gas, Sunoco, Texaco, Hess, Raceway and Marathon.
  • Big box stores: Walmart Supercenter’s, Target, Kmart and Big Lots.
  • Wholesale stores: BJ’s Wholesale Club, Costco and Sams.
  • Amusement and theme parks: Walt Disney World, Epcot, Disney’s Magic Kingdom, Disney’s Animal Kingdom, Universal Studios, Islands of Adventure, Legoland, Disney’s Blizzard Beach, Disney’s Typhoon Lagoon, Wet and Wild, Busch Gardens, Downtown Disney, Disney Quest and Sea World.
  • Discount retail stores: Marshalls, TJ Maxx, Ross Dress For Less, Dollar General, Family Dollar, Discount Dollar and Dollar Tree.
  • Department Stores: Sears, Macy’s, Bloomingdales, Bealls, Saks Fifth Avenue, Dillards, Kohl’s, JC Penney, Belk, Nordstrom and Neiman Marcus.
  • Hotels and Motels: Hilton, Marriott, Best Western, Hampton Inn and Suites, Red Roof Inn, Ritz Carlton, Radisson, Fairfield Inn and Suites, Springhill Suites, Disney Resort’s, Sheraton, Hardrock Hotel, Renaissance Hotels, Westin, W Hotel, La Quinta Inn & Suites, Loews Hotels, Motel 6, Super 8 Motels, Holiday Inn, Crowne Plaza, Embassy Suites, Wyndham Hotels, Comfort Suites, Courtyard Marriott and Doubletree Suites.

Moral of the Story: if you are a Florida employee who is injured on the job at your workplace or somewhere else while in the course and scope of your employment, whether the work-related accident happens in Palmetto Bay, Daytona, Orlando, Tampa, Fort Myers, Naples, Jacksonville, Stuart, Jupiter, Hollywood, Pensacola, Ocala, Cape Coral, Saint Augustine, Aventura, Miami Beach, Hialeah, Gainsville, Palm Coast, Port St Lucie, Port Orange, West Kendall, Homestead, the Florida Keys, Cutler Ridge, or another area within Miami, Fort Lauderdale or Palm Beach, or anywhere in Miami-Dade, Broward, Palm Beach or Monroe Counties, know that workers injured due to work-related accidents have many options available under Florida workers compensation law that may require the retention of a Miami Florida workers compensation lawyer or a Florida work-related accident injury lawyer, given the many complexities involved when an employee is hurt at work and suffers an on the job injury or occupational disease.

Florida Workplace Accident Law and On The Job Injuries – What are Workers’ Options Under Florida Law When They Are Hurt at Work, Apart From a Workers Compensation Claim?

Casualty at work

Dramatization/Actor – Not An Actual Event

Workplace accidents happen on the job every day down in South Florida.  In fact, some of the most common causes of Miami Florida work-related accidents and work-related injuries can include the following:

  1. Slip and fall on food, produce, oil, water or some other substance on the floor;
  2. Trip and fall over bunched up carpet, rugs or matts, raised sidewalks and potholes in the parking lot;
  3. An object falls on you from above due to improper stacking or shelving;
  4. You carry or push an object that is too heavy (such as lifting a computer, heavy boxes or equipment);
  5. Repeated use a body part that sustains an acute injury (such as carpal tunnel syndrome by typing on a computer);
  6. Automobile or truck accident while driving a company truck, van or car (such as a taxi driver, limosine driver or pizza and paper delivery contractor);
  7. A restaurant chef or cook cuts or burns their hand, wrist or fingers;
  8. Inhalation or breathing in of toxins, dangerous gases or substances (such as asbestos from working in automotive repair shops, boiler making, construction, mines, mills, factories or pipe fitting);
  9. Injured by a co-worker or co-employee of another subcontractor or general contractor (GC) on a construction site, including crane accidents, ladder accidents, rooftop accidents, forklift accidents, scaffolding accidents, OSHA violation accidents and dump truck accidents).

Unfortunately, these types of work-related accidents can cause employees to suffer from a variety of work injures on the job, including broken bones (legs, hips, arms, knees, ankles, wrists, shoulders, vertebrae, feet and hands), spinal injuries (herniated and bulging discs, torn annulus, nerve injuries), head injuries (including post-concussive syndrome and traumatic brain injuries (TBI)), torn muscles, tendons and ligaments (including a torn labrum (SLAP tear) or rotator cuff), tendinitis, eye sight loss (including loss of an eye) and hearing loss, amputations, burn injuries (including electrocution), hypothermia due to the cold, and sickness or disease from exposure to gasses, dust, fibers or other toxic chemicals or debris (such as asbestosis, mesothelioma, lung cancer or black lung).  In fact, construction site accidents usually involve catastrophic injuries such as loss of limb, paralysis and even cases where workers are killed on the job.

Because workplace accidents are so common in South Florida and employers wish to lessen the occurrences of workers being hurt on the job, they really try to emphasize employee training and supervision.  However, in a lot of instances, the employer training and supervision is simply not enough.  It does not matter whether you work for Sea World, Disney World, Universal Studios, Publix, Home Depot, Lowes, K-Mart, Wal-Mart, Winn-Dixie, Wholefoods, Sedanos Supermarket, Burger King, McDonalds, Subway, Wendys, Starbucks, KFC, Panera Bread Company, Costco, Sams, Taco Bell, Target, CVS, Walgreens, Best Buy or any other Florida restaurant, hotel, supermarket, retail chain or shopping mall (such as Dadeland), workplace accidents can happen and employees are often searching for answers from a Florida Work Injury lawyer or Florida Workers Compensation Attorney, to guide them in their potential filing of a workers compensation claim for benefits that have been denied, delayed or underpaid.

When an employee is hurt  at work and suffers work-related injuries, they have several options at their disposal under Florida law:

  1. Elect to pursue a workers compensation claim against their employer (a no-fault system that will allow the employee to recover medical benefits and lost wages) and thereby eliminating any future claim against their employer;
  2. Elect to pursue a workers compensation claim against their employer but specifically including within the settlement and release that the employee still retains the right to pursue a claim against the employer under the intentional tort exception;
  3. Sue their employer in tort under the intentional tort exception to an employers workers compensation immunity provided under Florida law;
  4. Sue a co-employee in tort under the gross negligence or willful/wanton conduct exception to immunity;
  5. Sue a co-contractor in tort (horizontal relationship) under the gross negligence exception to immunity; or
  6. Bring a third party liability claim against any third party who may have caused or contributed to the workplace accident (such as a janitorial company for leaving floors wet while a security guard performs their duties; a manufacturer of a product that contains a product defect or was negligently designed).

The following is a discussion and analysis of Florida workplace accidents and some of the options an injured employee has under Florida law.

FLORIDA’S WORKERS COMPENSATION LAW UNDER CHAPTER 440 PROVIDES MEDICAL AND DISABILITY BENEFITS FOR WORKERS INJURED IN ACCIDENTS AT THE WORKPLACE: Florida’s workers compensation law (a n0-fault system) is a statutory creature governed by Chapter 440.  Under section 440.015, it is the legislatures intent that Florida’s Workers’ Compensation Law be interpreted so as to assure the quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the worker’s return to gainful reemployment at a reasonable cost to the employer…. and …. to ensure the prompt delivery of benefits to the injured worker.

Of note, Florida’s private employers who have four or more employees in a non-construction realm, or one employee in the construction realm (under Florida Statute 440.10(b), where a contractor sublets any part or parts of his or her contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment, and the contractor shall be liable for, and shall secure, the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment — the general contractor in this case would be considered a “statutory employer”), are required by law to obtain workers compensation insurance (unless they are exempt) to cover their employee’s for injuries, accidents or deaths that occur at the workplace and are related to some effect from the workplace, ie., on the job injuries that result from work accidents.

It should be noted that Florida Courts require that the work-related accident not only caused the injury, but also that the accident must be greater in significance and importance than any other single other cause, ie., the major contributing cause of the disability or need for work place accident treatment.  Given this standard, one who exacerbates a pre-existing condition may be denied workers compensation benefits for a work injury that occurred as a result of an on the job injury but was not the main cause of the work place injury.  In that scenario, an injured employee who was hurt at work may need to hire a Florida Workers Compensation lawyer to to file a workers compensation claim, in order to secure their medical and disability benefits that have been wrongfully denied or undervalued.

Some important definitions under Florida’s workers compensation law for employees hurt at work are the following:

  1. 440.02(1) (1) – Accident: means only an unexpected or unusual event or result that happens suddenly. Disability or death due to the accidental acceleration or aggravation of a venereal disease or of a disease due to the habitual use of alcohol or controlled substances or narcotic drugs, or a disease that manifests itself in the fear of or dislike for an individual because of the individual’s race, color, religion, sex, national origin, age, or handicap is not an injury by accident arising out of the employment. Subject to s. 440.15(5), if a preexisting disease or anomaly is accelerated or aggravated by an accident arising out of and in the course of employment, only acceleration of death or acceleration or aggravation of the preexisting condition reasonably attributable to the accident is compensable, with respect to any compensation otherwise payable under this chapter. An injury or disease caused by exposure to a toxic substance, including, but not limited to, fungus or mold, is not an injury by accident arising out of the employment unless there is clear and convincing evidence establishing that exposure to the specific substance involved, at the levels to which the employee was exposed, can cause the injury or disease sustained by the employee.
  2. 440.02(10) – Date of maximum medical improvement: means the date after which further recovery from, or lasting improvement to, an injury or disease can no longer reasonably be anticipated, based upon reasonable medical probability.
  3. 440.02(11) – Death: as a basis for a right to compensation means only death resulting from an injury.
  4. 440.02(13) – Disability: means incapacity because of the injury to earn in the same or any other employment the wages which the employee was receiving at the time of the injury
  5. 440.02(15)(a) – Employee: means any person who receives remuneration from an employer for the performance of any work or service while engaged in any employment under any appointment or contract for hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed, and includes, but is not limited to, aliens and minors.
      1. 440.02(15)(b): employee also includes includes any person who is an officer of a corporation and who performs services for remuneration for such corporation within this state, whether or not such services are continuous.
      2. 440.02(15)(c): employee also includes (1) A sole proprietor or a partner who is not engaged in the construction industry, devotes full time to the proprietorship or partnership, and elects to be included in the definition of employee by filing notice thereof as provided in s. 440.05; (2) All persons who are being paid by a construction contractor as a subcontractor, unless the subcontractor has validly elected an exemption as permitted by this chapter, or has otherwise secured the payment of compensation coverage as a subcontractor, consistent with s. 440.10, for work performed by or as a subcontractor; (3) An independent contractor working or performing services in the construction industry; (4) A sole proprietor who engages in the construction industry and a partner or partnership that is engaged in the construction industry.

      3. 440.02(15)(d)an employee does not include (1) an independent contractor who is not engaged in the construction industry; (6) a volunteer, except a volunteer worker for the state or a county, municipality, or other governmental entity; )10) a taxicab, limousine, or other passenger vehicle-for-hire driver who operates said vehicles pursuant to a written agreement with a company which provides any dispatch, marketing, insurance, communications, or other services under which the driver and any fees or charges paid by the driver to the company for such services are not conditioned upon, or expressed as a proportion of, fare revenues.

  6. 440.02(17)(b)(2) – Employment: includes all private employments in which four or more employees are employed by the same employer or, with respect to the construction industry, all private employment in which one or more employees are employed by the same employer
  7. 440.02(19) – Injury: means personal injury or death by accident arising out of and in the course of employment, and such diseases or infection as naturally or unavoidably result from such injury. Damage to dentures, eyeglasses, prosthetic devices, and artificial limbs may be included in this definition only when the damage is shown to be part of, or in conjunction with, an accident. This damage must specifically occur as the result of an accident in the normal course of employment.

FLORIDA WORKERS INJURED ON THE JOB MAY RUN INTO EMPLOYER IMMUNITY FOR WORKPLACE ACCIDENTS CAUSED BY EMPLOYER OR CO-WORKER GENERAL NEGLIGENCE: under Florida Statute 440.11(1) – Exclusiveness of Liability, a worker or employee injured on the job is pretty much limited to a workers compensation claim for recovery of medical benefits and lost wages, one cannot recover benefits for pain and suffering arising out of a work place accident by way of a workers compensation claim.  Florida Statute 440.11(1) states that the liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability, including vicarious liability, of such employer to any third-party tortfeasor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death.  However, there are some exceptions to this general rule of employer negligence and lawsuit immunity, including the following:

Florida Statute 440.11(1)(a) – employer failure to secure workers compensation insurance: if an employer fails to secure payment of compensation as required by this chapter, an injured employee, or the legal representative thereof in case death results from the injury, may elect to claim compensation under this chapter or to maintain an action at law or in admiralty (ie., you can bring a lawsuit against your employer for general negligence in order to recover pain and suffering damages for your workplace injuries) for damages on account of such injury or death. In such action the defendant employer may not plead as a defense that the injury was caused by negligence of a fellow employee, that the employee assumed the risk of the employment, or that the injury was due to the comparative negligence of the employee (ie., when an injured employee hires a Florida workplace accident injury lawyer, and they bring a lawsuit for disability or death benefits, the employer can not defend the case by stating the employee was negligent in causing the accident) .

Florida Statute 440.11(1)(b) – the intentional tort exception: when an employer commits an intentional tort that causes the injury or death of the employee. For purposes of this paragraph, an employer’s actions shall be deemed to constitute an intentional tort and not an accident only when the employee proves, by clear and convincing evidence, that: 

1. The employer deliberately intended to injure the employee; or

2. The employer engaged in conduct that the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee, and the employee was not aware of the risk because the danger was not apparent and the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.

Florida Statute 440.11(b) – co-employee willful and wanton conduct or gross negligence: while the the same immunities from liability enjoyed by an employer shall extend as well to each employee of the employer when such employee is acting in furtherance of the employer’s business and the injured employee is entitled to receive benefits under this chapter, such fellow-employee immunities shall not be applicable to an employee who acts, with respect to a fellow employee, with willful and wanton disregard or unprovoked physical aggression or with gross negligence when such acts result in injury or death or such acts proximately cause such injury or death, nor shall such immunities be applicable to employees of the same employer when each is operating in the furtherance of the employer’s business but they are assigned primarily to unrelated works within private or public employment.

Florida Statute 440.11(b) – officer or managerial employee conduct that is a violation of law: while the same immunity provisions enjoyed by an employer shall also apply to any sole proprietor, partner, corporate officer or director, supervisor, or other person who in the course and scope of his or her duties acts in a managerial or policymaking capacity and the conduct which caused the alleged injury arose within the course and scope of said managerial or policymaking duties and was not a violation of a law, whether or not a violation was charged, for which the maximum penalty which may be imposed does not exceed 60 days’ imprisonment as set forth in s. 775.082 (ie., if the managerial employee’s conduct violates the law and the penalty exceeds 60 days in jail, workers compensation immunity may not apply to this employee).

Florida Statute 440.10(e) – sub-contractor gross negligence on a construction site or job: a subcontractor providing services in conjunction with a contractor on the same project or contract work is not liable for the payment of compensation to the employees of another subcontractor or the contractor on such contract work and is protected by the exclusiveness-of-liability provisions of s. 440.11 from any action at law or in admiralty on account of injury to an employee of another subcontractor, or of the contractor, provided that:

1. The subcontractor has secured workers’ compensation insurance for its employees or the contractor has secured such insurance on behalf of the subcontractor and its employees in accordance with paragraph (b); and

2. The subcontractor’s own gross negligence was not the major contributing cause of the injury.

RECENT EXAMPLES OF INJURED OR KILLED WORKERS AND THE APPLICATION OF THE EXCEPTIONS WITHIN LIABILITY LAWSUITS BROUGHT AGAINST EMPLOYERS, CO-CONTRACTORS AND CO-WORKERS: the following recent cases are some examples of the application of the standards referenced above, when a worker that is injured or killed by way of a Florida workplace accident, brought a lawsuit against their employer for wrongful death or tort damages (ie., pain and suffering, as these damages are not recoverable in a Florida workers compensation claim):

Figueroa v. Delant Const. Co., 118 So.3d 272 (Fla. 3d DCA 2013): this case involved a construction worker that was allegedly injured by way of a Florida workplace accident, and he brought a lawsuit against his construction company employer (considered a statutory employer)  under the intentional tort exception (ie., requires conduct that is virtually certain to cause injury or death).  The Court granted summary judgment to the employer, of which the Third District Court of Appeal (governs workplace accidents that occur in Miami-Dade County Florida) affirmed the decision.  The appeals court noted that there were no prior similar accidents or a specific warning explicitly identifying a known danger, which would thereby establish that the construction company employer engaged in conduct it knew was “virtually certain to result in injury or death” to the employee, the evidence demonstrated that the danger or risk was apparent to the employee, and there was no concealment or misrepresentation by the construction employer. Therefore, the Court ruled that the employee could not establish as a matter of law that the intentional tort exception to workers’ compensation immunity was applicable, and that the trial court properly entered final summary judgment in favor of the construction company employer.

Boston ex rel. Estate of Jackson v. Publix Super Markets, Inc., 112 So.3d 654 (Fla. 4th DCA 2013): this case involved a Publix Supermarket worker that was killed on the job when a co-worker accidentally backed his tractor trailer up to the warehouse door and struck the employee.  The estate of the worker that was killed on the job had a Florida workplace injury lawyer bring a  wrongful death lawsuit against Publix under the intentional tort exception to the workers compensation immunity statutory framework, and a gross negligence suit against the co-worker in order to get past Publix’s employer immunity for injury or death caused by general negligence.

The Court noted that the tractor was equipped with backup alarms, although an inspection after the incident revealed that the backup alarm on the tractor was not working, to which the co-employee testified that he knew the backup alarm was inoperable and had not been working for months. The Court further noted that the co-employee did not report it to Publix maintenance, nor did he fill out inspection reports designed to call attention to any maintenance problems, that Publix’s policy for safety inspections and maintenance would have required that the tractor trailer be taken out of service to repair the backup alarm, but the tractor trailer was overdue for safety inspections, and that the tractor trailer had been in for other maintenance, and that the maintenance staff should have checked the backup alarm and taken the tractor out of service to repair it.

The Court also noted that no prior accidents had occurred at the distribution center involving the tractors, with or without a failed backup alarm, in which an employee was pinned between the back of the trailer and the loading dock or where a tractor-trailer backed into an employee — Publix apparently knew of three prior accidents at the distribution center, but none involved a tractor, and none occurred in backing up a vehicle.  Apparently, following this incident, Publix was cited by OSHA for having an inoperative backup alarm on the tractor trailer, to which the OSHA report stated that Publix “did not furnish to each of [its] employees employment and a place of employment which were free from recognized hazards that were causing or were likely to cause death or serious physical harm to employees….”

The Court affirmed the trial court’s granting of summary judgment to the employer as to the intentional tort exception to general employer immunity for general negligence — the trial court ruled that even taking the facts in the light most favorable to Plaintiff, the evidence fails to establish that Publix engaged in conduct that Publix knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the decedent…there was no concealment of the risks involved … the danger should have been obvious to the decedent … and that this tragic accident was just an act of simple negligence (ie, the virtually certain standard is so high that the conduct must be so egregious to overcome general employer immunity).

Of note, however, the Third District did reverse on the gross negligence claim against the co-employee, finding that material issues of fact existed as to whether the co-employees conduct constituted gross negligence that caused injury of death.  The Court noted that “Gross negligence … is defined as an act or omission that a reasonable, prudent person would know is likely to result in injury to another,” while ‘simple negligence is that course of conduct which a reasonable and prudent man would know might possibly result in injury to persons….’ ”  The Third District also noted another definition of gross negligence by a sister court, ie., “[A] finding of gross negligence requires the following: [F]irst of all, gross negligence presupposes the existence of a “composite” of circumstances which, together, constitute an “imminent” or “clear and present” danger amounting to more than normal and usual … peril….Secondly, gross negligence must be predicated on a showing of chargeable knowledge or awareness of the imminent danger spoken of. And thirdly, the act or omission complained of must occur in a manner which evinces a “conscious disregard of consequences,” as distinguished from a “careless” disregard thereof (as in simple negligence) or from the more extreme “willful or wanton” disregard thereof (as in culpable or criminal negligence).”

Villalta v. Cornn Intern., Inc., 110 So.3d 952 (Fla. 1st DCA 2013): in this case, the estate of deceased drywall worker (the employee fell from a scaffold and sustained fatal injuries) filed a negligence action against a drywall subcontractor that had subcontracted drywall work on the construction project to the injured worker’s employer. The Circuit Court in Duval County entered summary judgment in favor of the drywall subcontractor on the basis of statutory immunity as provided under Florida’s Workers’ Compensation Law. The estate appealed, to which the First District Court of Appeal affirmed the summary judgment, holding that the intentional tort exception, and not the gross negligence exception to tort immunity under Florida’s Workers’ Compensation Law, governed the negligence action.

The Court noted that because the general contractor had contracted out the drywall work to another subcontractor, who then subcontracted out the work to the injured worker’s employer, that the subcontractor of the general contractor became the injured worker’s statutory employer under Florida Statute 440.10(1), and thus was immune from a lawsuit (ie., general negligence).

This case sets forth a good discussion as to whether the intentional tort or the gross negligence exception applies for workplace accidents and injuries on a construction site. The killed worker’s estate brought a lawsuit against several parties, including the subcontractor that had contracted the drywall work to the employee’s employer (ie., a vertical relationship under the same subcontract). The drywall subcontractor asserted its immunity from suit under section 440.11(1). Under this section, particularly §440.11(1)(b), an exception to the statutory immunity applies if an intentional tort was committed (which the Court found was not). The estate relied on a theory of gross negligence and asserted that the suit could be brought against the drywall subcontractor pursuant to section 440.10(1)(e)(2), which provides section 440.11 immunity for a subcontractor sued by the employee of another subcontractor unless the first subcontractor’s own gross negligence was the major contributing cause of the injury. The Court noted, however, that reliance on the gross negligence provision in section 440.10(1)(e)(2), ignores the distinction between a vertical subcontracting relationship and upon which section 440.11(1) immunity applies, and the horizontal type of subcontractor relationship to which section 440.10(1)(e)( 2) may be invoked.

The Court noted that a vertical relationship is created when a contractor sublets part of the work to a subcontractor, who then further sublets work to another subcontractor. That is the situation in the present case. In contrast, a horizontal relationship exists between subcontractors engaged on the same construction project but under different subcontracts outside the vertical chain of a contractor to subcontractor to sub-subcontractor. The immunity granted to subcontractors outside that vertical chain is governed by section 440.10(1), including the section 440.10(1)(e)(2) provision for gross negligence. The immunity for subcontractors within a vertical relationship, as in the present case, is governed by section 440.11(1), with the section 440.11(1)(b) intentional tort exception. The Court held that because the evidence submitted by the injured worker’s estate in this case did not support an intentional tort, and because the subcontractor that was sued was in a vertical subcontracting relationship with the employee’s drywall employer and was thus his statutory employer for workers’ compensation benefits, the drywall subcontractor was entitled to section 440.11(1) immunity. The Court noted that the gross negligence exception in section 440.10(1)(e)(2) did not apply in this situation, and that summary judgment in the civil suit was properly entered for the drywall subcontractor in accordance with section 440.11(1).

Villalta v. Cornn Intern., Inc., 109 So.3d 278 (Fla. 1st DCA 2013): in a companion case to the one above, the drywall employee killed on a construction site also brought suit against the HVAC contractor (heating, vacuum, air conditioning) on the job site, to which the First District noted that this was a horizontal relationship (as opposed to a vertical relationship in the case above), and that the immunity applicable was under Florida Statute 440.10 (ie, the gross negligence exception of a fellow contractor) as opposed to Florida Statute 440.11 (ie., the intentional tort exception for a vertical contracting relationship).  As such, the Court held that disputed issues of material fact existed as to whether the HVAC contractor was grossly negligent in creating and then failing to cover cut-out in floor at construction site where drywall subcontractor’s employee was working on a scaffold, or to warn of hazard created by the cut-out, such that the HVAC subcontractor was not entitled to statutory immunity as provided under Florida’s Workers’ Compensation Law, and thus precluding summary judgment in civil action for damages upon the death of the employee when he fell off scaffolding.

List Industries, Inc. v. Dalien, 107 So.3d 470 (Fla. 4th DCA 2013): in this case, an employee that suffered an amputation of a significant portion of his dominant hand while operating a piece of machinery brought an intentional tort claim against his employer. The Circuit Court for the Seventeenth Judicial Circuit in Broward County entered judgment on a jury verdict for the employee, to which the employer appealed. The Fourth District Court of Appeal (governs Broward and Palm Beach Counties) held that the employee did not establish a personal injury claim under the intentional tort exception to Florida’s workers’ compensation law’s exclusivity provision.  The Court ruled that the injured employee did not establish a personal injury claim under the intentional tort exception to Florida’s workers’ compensation law’s exclusivity provision — although the employee proved that there were prior accidents on different machines which performed different functions, the injured employee did not prove that there were prior “similar” accidents on the machine at issue, and thus, the employee did not prove that it was “virtually certain” that operating the machine would result in injury, as there had been no prior accidents on the machine, and the employee did not prove that he was unaware of risk and that the danger was not apparent, given that it was obvious to the injured employee that the machine could crush a hand from the times he saw steel being inserted into machine.

Gorham v. Zachry Indus., Inc., 105 So.3d 629 (Fla. 4th DCA 2013): in this case, an employee claims he was injured while working on a construction project for his employer, who contracted with Florida Power & Light (“FPL”) to build a natural gas plant in Loxahatchee, Florida. During the process of setting a wall at the plant, the employee was injured and apparently had a Florida workplace accident injury lawyer bring a personal injury lawsuit against his employer alleging an intentional tort had occurred, in order to avoid his employer’s statutory worker’s compensation immunity from tort.  The Court noted that the employee was working as a rigger on the FPL power plant construction site, when on  the day of the accident, the crew was attempting to lift and place a nine-ton wall.  Apparently, two cranes were available to lift the large pre-fabricated wall into place. A tag line to keep the wall from swaying as the crane lifted the wall was attached to the wall, and because of the danger of swaying, attention to the wind speed was very important.

The Court further noted that on the morning of the incident, the injured employee participated in the first lift, in which the wall was raised slightly. After the wall was vertical, the injured employee walked over to help others disconnect shackles off the wall, to which the crane operator began to move the wall alongside the cooling tower near the site, and once the wall got into that area, the wind was blowing.  The injured employee tried to stabilize the wall, which then began dragging him.  The crane operator sounded the emergency horn to signal that everyone was to let go and run, although the injured employee did not let go as he grabbed a rope around his arm and wrapped his arm around the tag line. The employee received significant injuries to his arm in the process. Apparently, the crane operator waited for the wind to die down before he made a second attempt, he then checked the wind again which was varying between 5 and 25 mph, and the wind continued to cause difficulties in completing the second lift.

The trial court entered summary judgment for the employer, which was affirmed by the Fourth District.  The District Court noted that the elements which the employee must prove for the intentional tort exemption to workers compensation immunity, are: 1) employer knowledge of a known danger, based upon prior similar accidents or explicit warnings specifically identifying the danger that was virtually certain to cause injury or death to the employee; 2) the employee was not aware of the danger, because it was not apparent; and 3) deliberate concealment or misrepresentation by the employer, preventing employee from exercising informed judgment as to whether to perform the work.  The District court held that there was no evidence to support the requirement that “[t]he employer engaged in conduct that the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee.”

Moral of the Story: if you are a Florida employee injured at your office or somewhere else while in the course and scope of your employment, whether the workplace accident happens in Hollywood, Dania, Weston, Plantation, Aventura, Miami Beach, Bal Harbour, Coral Gables, West Kendall, Homestead, the Florida Keys, Cutler Ridge, Palmetto Bay, Orlando, Tampa, Fort Myers, Naples, Jacksonville, Stuart, Jupiter or another area within Miami, Fort Lauderdale or Palm Beach, know that there are many options available under Florida law that may require the retention of a Miami Florida workers compensation lawyer or a Florida workplace accident injury lawyer, given the many complexities involved when an employee is hurt at work and suffers a work-related accident or work-related injury while on the job.

Florida Rental Car Accident Law – Is the Rental Car Company Responsible for Injured Motorists Simply as the Owner of the Vehicle?

Everyday, people come to Florida as tourists from the North East and from all over the world, given our hot temperatures and lush beach towns (such as Miami Beach, South Beach, Hollywood Beach, Fort Lauderdale Beach, beaches throughout the Florida keys (including Key West, Islamorada, Marathon, Tavernier and Key Largo), Sanibel, Naples, Siesta Key, Daytona Beach, Clearwater Beach, Cocoa beach, Delray Beach and Palm Beach). Many of these vacation or snow bird activities involve getting a rental car for the time spent in South Florida, such as from Enterprise, Hertz, Fox Rent a Car, Dollar Rent a Car, Thrifty Car Rental, Alamo, Budget, National, Ace Rent a Car, Midway Car Rental, EZ Rent a Car or Payless. Unfortunately, car accidents are so very common on our Florida road ways, many of which involve serious injuries to drivers and passengers of rental cars, or even traffic accidents with motorcycles, bicycles and/or pedestrians. A question often asked of a Miami, Florida rental car crash attorney, is whether the rental car company is responsible for injuries sustained by one in an rental car accident simply by way of their ownership of the motor vehicle.

According to the Florida Supreme Court in Vargas v. Enterprise Leasing Co., 60 So.3d 1037 (Fla. 2011), when drivers or passengers of rental cars (short term, ie., for a period of days such as when on vacation) are in involved in an automobile accident, the rental car companies are no longer vicariously responsible for the negligence of the rental car driver under the dangerous instrumentality doctrine unless certain exceptions are met. In Vargas, Enterprise Leasing Company leased a vehicle to a person for less than one year (ie., a short term car rental), who ended up getting into a motor vehicle accident by rear ending another vehicle.  The other injured driver would end up bringing a lawsuit against Enterprise, claiming that the company was vicariously liable as the owner of the motor vehicle pursuant to section 324.021(9)(b)(2). The injured driver did not contend that Enterprise was negligent, that its lease of the rental car was improper, or that Enterprise Leasing was in any way at fault for the motor vehicle accident.

The Florida Supreme Court ruled that 49 U.S.C. § 30106 (ie., the Graves Amendment), preempted section 324.021(9)(b)(2) of the Florida Statutes, involving short term leases of motor vehicles.  The Federal Graves Amendment states the following:

§ 30106. Rented or leased motor vehicle safety and responsibility:

(a) In general.—An owner of a motor vehicle that rents or leases the vehicle to a person (or an affiliate of the owner) shall not be liable under the law of any State or political subdivision thereof, by reason of being the owner of the vehicle (or an affiliate of the owner), for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease, if—

(1) the owner (or an affiliate of the owner) is engaged in the trade or business of renting or leasing motor vehicles; and

(2) there is no negligence or criminal wrongdoing on the part of the owner (or an affiliate of the owner).

(b) Financial responsibility laws.—Nothing in this section supersedes the law of any State or political subdivision thereof—

(1) imposing financial responsibility or insurance standards on the owner of a motor vehicle for the privilege of registering and operating a motor vehicle; or

(2) imposing liability on business entities engaged in the trade or business*1040 of renting or leasing motor vehicles for failure to meet the financial responsibility or liability insurance requirements under State law.

49 U.S.C. § 30106 (2006).

As such, because of the Federal Graves Amendment, rental car companies will have no liability when it comes to Florida rental car accident lawsuits, simply by way of their ownership of the rental car at issue.  The only way rental car companies will potentially have some responsibility for rental cars involved in Florida traffic accidents, is when there is some other negligence or criminal wrongdoing found on the part of the owner (or an affiliate of the owner).  What this means, is that the injured driver or passenger that sues a rental car company must allege and prove some form of negligence on their behalf (such as failure to maintain the tires, engine, mirrors or some other portion of the car  – ie., maintenance issues), or some form of criminal conduct on behalf of the rental car company.

It should be noted that the Florida Supreme Court has also exempted a “long term lessor” from liability arising out of their ownership of the leased vehicle that was involved in a Florida car accident. In the case of Rosado v. DaimlerChrysler Financial Services Trust, 112 So.3d 1165 (Fla. 2013), a law firm had secured a four year lease from DaimlerChrysler, wherein the driver of the leased vehicle crossed a median on a Florida highway and struck another vehicle.  The injured motorist thus brought a lawsuit against multiple parties, including DaimlerChrysler as the vehicle owner, claiming that because DaimlerChrysler had failed to comply with the insurance requirements of section 324.021(9)(b)(1), Florida Statutes (2002), DaimlerChrysler was vicariously liable for the leased car driver’s negligent operation of the car under Florida’s dangerous instrumentality doctrine.  The Florida Supreme Court ruled that a long term lessor was exempt from liability solely as the owner of the leased vehicle, per the Graves Amendment.  The insurance issue raised by the injured driver was not addressed by the Supreme Court given that it was not preserved for appeal.

FLORIDA DRIVERS OF RENTAL CARS SHOULD PURCHASE UNINSURED (UM) AND/OR UNDERINSURED (UIM) MOTORIST INSURANCE FROM THE CAR RENTAL COMPANY: because the rental car companies are essentially immune from suit in the above referenced situations, and because under Florida law operators of cars and trucks are only required to have $10,000 in PIP insurance and $10,000 in property damage liability insurance (bodily injury liability insurance is optional, especially for motorcycles), it is of prime importance for renters of rental cars to purchase Supplemental Liability Insurance in order to provide them with Florida UM and UIM coverage — this can provide one with another source of benefits (typically will be $1,000,000 in excess UM/UIM insurance coverage) when the adverse owner and/or operator who was in the traffic accident or crash with you, has no insurance or their limits are too low (drivers and owners typically only have $10,000 in bodily injury liability limits).

This rental car supplemental liability insurance can provide medical benefits and compensation for pain and suffering in case one suffers catastrophic injuries such as an amputation, brain injury (including traumatic brain injury – TBI), head injury (concussion), back injury (lumbar or thoracic disc tears, bulges or herniations), shoulder injury (torn labrum, tendons, ligaments or rotator cuff), neck injury (whiplash, cervical disc tears, bulges or herniations), chest injury (bruised or fractured sternum), face injury (fractured cheek or orbital bones), degloving injury, paralysis (quadriplegic, paraplegic or other forms of spinal cord injuries), burn injury, road rash, or severely broken legs, arms, feet, elbows, wrists, hips (pelvis), knees, ankles or vertebrae (typically requiring surgeries with implantation of hardware). For an extensive discussion on Florida Uninsured and/or Underinsured Motorist Insurance Coverage, see my previous article.

Moral of the Story: as you can see, whether you are a driver or passenger of a rental car (or are a pedestrian or bicyclist struck by a rental car, or riding on a moped, scooter or motorcycle struck by a rental car) and are injured in a rental car traffic accident on Florida roads within Coral Springs, Cooper City, Hallandale, Boca Raton, Homestead, West Kendall, Orlando, Tampa, Jacksonville, Key Biscayne, Weston, Pompano Beach, Tamarac, Wilton Manners, Hialeah, Naples, Fort Myers, Stuart, Martin or another area within Miami-Dade, Fort Lauderdale, Palm Beach or the Florida Keys, know that unless you can show some form of negligence or criminal wrongdoing on the part of the owner (or an affiliate of the owner), the rental car or leasing company (whether a short or long term lease or rental) will be immune from liability (simply as the owner) in a Florida rental car traffic accident, for which a Florida personal injury attorney’s lawsuit against a rental car company will be dismissed.

Florida Motorcycle Laws: What Regulations are Applicable to Owners, Drivers and Riders of Motorcycles on Florida Roadways?

Florida Motorcycle Laws_fightsforyou.netAs anyone in South Florida knows, with our beautiful weather, Florida roads and highways are considered prime motorcycle territory to cruise around, particularly in the Florida Keys, Daytona Beach, Tampa, Orlando, Fort Lauderdale and Miami.  Given the amount of riders that utilize Florida roads and the various motorcycle rallies that occur in Florida, motorcycle accidents are a common occurrence, especially ones where riders and passengers sustains serious injuries, including being killed at times.   The question often asked of South Florida motorcycle accident lawyers is what law is applicable to driving a motorcycle in Florida such as the road and traffic  rules, safety equipment regulations (such as Florida’s motorcycle helmet law), bike equipment regulations, the law regarding getting a motorcycle drivers license, motorcycle age restrictions, etc.   The following are relevant Florida statutes that may answer some of your common and frequently asked questions regarding Florida’s motorcycle laws applicable to Florida’s motorcycle riders.

Florida Motorcycle Laws: Relevant Florida Statutes Governing the Operation and Use of Motorcycles on Florida Roadways:

  1. Florida Statute s. 316.208 (motorcycles and mopeds): (1) Any person operating a motorcycle or moped shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of any other vehicle under this chapter, except as to special regulations in this chapter and except as to those provisions of this chapter which by their nature can have no application. (2)(a) Any person operating a moped upon a roadway at less than the normal speed of traffic at the time and place and under the conditions then existing shall ride as close as practicable to the right-hand curb or edge of the roadway except under any of the following situations: 1. When overtaking or passing another vehicle proceeding in the same direction. 2. When preparing for a left turn at an intersection or into a private road or driveway. 3. When reasonably necessary to avoid any condition, including, but not limited to, a fixed or moving object, parked or moving vehicle, bicycle, pedestrian, animal, surface hazard, or substandard-width lane, that makes it unsafe to continue along the right-hand curb or edge. For purposes of this paragraph, a “substandard-width lane” is a lane that is too narrow for a moped and another vehicle to travel safely side by side within the lane. (b) Any person operating a moped upon a one-way highway with two or more marked traffic lanes may ride as near the left-hand curb or edge of such roadway as practicable. (3) A person propelling a moped solely by human power upon and along a sidewalk, or across a roadway upon and along a crosswalk, has all the rights and duties applicable to a pedestrian under the same circumstances, except that such person shall yield the right-of-way to any pedestrian and shall give an audible signal before overtaking and passing a pedestrian. (4) No person shall propel a moped upon and along a sidewalk while the motor is operating. (5) A violation of this section is a noncriminal traffic infraction, punishable as a moving violation as provided in chapter 318.
  2. Florida Statute s. 316.2085 (riding on motorcycles or mopeds): (1) A person operating a motorcycle or moped shall ride only upon the permanent and regular seat attached thereto, and such operator shall not carry any other person, nor shall any other person ride on a motorcycle or moped, unless such motorcycle or moped is designed to carry more than one person, in which event a passenger may ride upon the permanent and regular seat if designed for two persons or upon another seat firmly attached to the motorcycle or moped at the rear or side of the operator.(2) A person shall ride upon a motorcycle or moped only while sitting astride the seat, with both wheels on the ground at all times, facing forward, and with one leg on each side of the motorcycle or moped. However, it is not a violation of this subsection if the wheels of a motorcycle or moped lose contact with the ground briefly due to the condition of the road surface or other circumstances beyond the control of the operator.(3) The license tag of a motorcycle or moped must be permanently affixed to the vehicle and remain clearly visible from the rear at all times. Any deliberate act to conceal or obscure the legibility of the license tag of a motorcycle is prohibited. The license tag of a motorcycle or moped may be affixed horizontally to the ground so that the numbers and letters read from left to right. Alternatively, a license tag for a motorcycle or moped for which the numbers and letters read from top to bottom may be affixed perpendicularly to the ground. Notwithstanding the authorization to affix the license tag of a motorcycle or moped perpendicularly to the ground, the owner or operator of a motorcycle or moped shall pay any required toll pursuant to s. 316.1001 by whatever means available.(4) No person shall operate a motorcycle or moped while carrying any package, bundle, or other article which prevents the person from keeping both hands on the handlebars.(5) No operator shall carry any person, nor shall any person ride, in a position that will interfere with the operation or control of the motorcycle or moped or the view of the operator.(6) A person under 16 years of age may not: (a) Operate a motorcycle that has a motor with more than 150 cubic centimeters displacement. (b) Rent a motorcycle or a moped.(7) A violation of this section is a noncriminal traffic infraction, punishable as a moving violation as provided in chapter 318.
  3. Florida Statute s. 316.209 (operating motorcycles on roadways laned for traffic): (1) All motorcycles are entitled to full use of a lane and no motor vehicle shall be driven in such manner as to deprive any motorcycle of the full use of a lane. This subsection shall not apply to motorcycles operated two abreast in a single lane. (2) The operator of a motorcycle shall not overtake and pass in the same lane occupied by the vehicle being overtaken. (3) No person shall operate a motorcycle between lanes of traffic or between adjacent lines or rows of vehicles. (4) Motorcycles shall not be operated more than two abreast in a single lane. (5) Subsections (2) and (3) do not apply to police officers or firefighters in the performance of their official duties. (6) A violation of this section is a noncriminal traffic infraction, punishable as a moving violation as provided in chapter 318.
  4. Florida Statute 316.2095 (footrests, handholds, handlebars): (1) Any motorcycle carrying a passenger, other than in a sidecar or enclosed cab, shall be equipped with footrests for such passenger. (2) No person shall operate any motorcycle with handlebars or with handgrips that are higher than the top of the shoulders of the person operating the motorcycle while properly seated upon the motorcycle. (3) A violation of this section is a noncriminal traffic infraction, punishable as a nonmoving violation as provided in chapter 318.
  5. Florida Statute 316.211 (equipment for motorcycle and moped riders):  (1) A person may not operate or ride upon a motorcycle unless the person is properly wearing protective headgear securely fastened upon his or her head which complies with Federal Motorcycle Vehicle Safety Standard 218 promulgated by the United States Department of Transportation. The Department of Highway Safety and Motor Vehicles shall adopt this standard by agency rule. (2) A person may not operate a motorcycle unless the person is wearing an eye-protective device over his or her eyes of a type approved by the department. (3)(a) This section does not apply to persons riding within an enclosed cab or to any person 16 years of age or older who is operating or riding upon a motorcycle powered by a motor with a displacement of 50 cubic centimeters or less or is rated not in excess of 2 brake horsepower and which is not capable of propelling such motorcycle at a speed greater than 30 miles per hour on level ground. (b) Notwithstanding subsection (1), a person over 21 years of age may operate or ride upon a motorcycle without wearing protective headgear securely fastened upon his or her head if such person is covered by an insurance policy providing for at least $10,000 in medical benefits for injuries incurred as a result of a crash while operating or riding on a motorcycle. (4) A person under 16 years of age may not operate or ride upon a moped unless the person is properly wearing protective headgear securely fastened upon his or her head which complies with Federal Motorcycle Vehicle Safety Standard 218 promulgated by the United States Department of Transportation. (5) The department shall make available a list of protective headgear approved in this section, and the list shall be provided on request. (6) Each motorcycle registered to a person under 21 years of age must display a license plate that is unique in design and color. (7) A violation of this section is a noncriminal traffic infraction, punishable as a nonmoving violation as provided in chapter 318.
  6. Florida Statute 316.1995 (driving upon sidewalk or bicycle path): (1) Except as provided in s. 316.008 or s. 316.212(8), a person may not drive any vehicle other than by human power upon a bicycle path, sidewalk, or sidewalk area, except upon a permanent or duly authorized temporary driveway. (2) A violation of this section is a noncriminal traffic infraction, punishable as a moving violation as provided in chapter 318. (3) This section does not apply to motorized wheelchairs.
  7. Florida Statute 316.191(2)(a)(racing on highways): (2) A person may not: (a) Drive any motor vehicle, including any motorcycle, in any race, speed competition or contest, drag race or acceleration contest, test of physical endurance, or exhibition of speed or acceleration or for the purpose of making a speed record on any highway, roadway, or parking lot;
  8. Florida Statute 316.293(2)(a)(motorcycle noise): (2) Operating noise limits.–No person shall operate or be permitted to operate a vehicle at any time or under any condition of roadway grade, load, acceleration, or deceleration in such a manner as to generate a sound level in excess of the following limit for the category of motor vehicle and applicable speed limit at a distance of 50 feet from the center of the lane of travel under measurement procedures established under subsection (3). (a) For motorcycles other than motor-driven cycles:
    Speed limit 35 mph or less
    Speed limit over 35 mph
    Before January 1, 1979
    82 dB A
    86 dB A
    On or after January 1, 1979
    78 dB A
    82 dB A

     

  9. Florida Statute 316.304 (wearing of headsets): (1) No person shall operate a vehicle while wearing a headset, headphone, or other listening device, other than a hearing aid or instrument for the improvement of defective human hearing. (2) This section does not apply to: (a) Any law enforcement officer equipped with any communication device necessary in performing his or her assigned duties or to any emergency vehicle operator equipped with any ear protection device. (b) Any applicant for a license to operate a motorcycle while taking the examination required by s. 322.12(5). (c) Any person operating a motorcycle who is using a headset that is installed in a helmet and worn so as to prevent the speakers from making direct contact with the user’s ears so that the user can hear surrounding sounds. (d) Any person using a headset in conjunction with a cellular telephone that only provides sound through one ear and allows surrounding sounds to be heard with the other ear. (e) Any person using a headset in conjunction with communicating with the central base operation that only provides sound through one ear and allows surrounding sounds to be heard with the other ear. (3) The Department of Highway Safety and Motor Vehicles shall promulgate, by administrative rule, standards and specifications for headset equipment the use of which is permitted under this section. The department shall inspect and review all such devices submitted to it and shall publish a list by name and type of approved equipment. (4) A violation of this section is a noncriminal traffic infraction, punishable as a nonmoving violation as provided in chapter 318.
  10. Florida Statute 316.400 (headlamps): (1) Every motorcycle and every motor-driven cycle shall be equipped with at least one and not more than two headlamps which shall comply with the requirements and limitations of this chapter. (2) Every headlamp upon every motorcycle and motor-driven cycle shall be located at a height of not more than 54 inches nor less than 24 inches to be measured as set forth in s. 316.217(3). (3) A violation of this section is a noncriminal traffic infraction, punishable as a nonmoving violation as provided in chapter 318.
  11. Florida Statute 316.405 (motorcycle headlights to be turned on): (1) Any person who operates a motorcycle or motor-driven cycle on the public streets or highways shall, while so engaged, have the headlight or headlights of such motorcycle or motor-driven cycle turned on. Failure to comply with this section during the hours from sunrise to sunset, unless compliance is otherwise required by law, shall not be admissible as evidence of negligence in a civil action. During the hours of operation between sunrise and sunset, the headlights may modulate either the upper beam or the lower beam from its maximum intensity to a lower intensity, in accordance with Federal Motor Vehicle Safety Standard 571.108.(2) Failure to comply with the provisions of this section shall not be deemed negligence per se in any civil action, but the violation of this section may be considered on the issue of negligence if the violation of this section is a proximate cause of a crash.(3) A violation of this section is a noncriminal traffic infraction, punishable as a moving violation as provided in chapter 318.
  12. Florida Statute 316.410 (taillamps): (1) Every motorcycle and motor-driven cycle shall have at least one taillamp which shall be located at a height of not more than 72 nor less than 20 inches. (2) Either a taillamp or a separate lamp shall be so constructed and placed as to illuminate with a white light the rear registration plate and render it clearly legible from a distance of 50 feet to the rear. Any taillamp or taillamps, together with any separate lamp or lamps for illuminating the rear registration plate, shall be so wired as to be lighted whenever the headlamps or auxiliary driving lamps are lighted. (3) A violation of this section is a noncriminal traffic infraction, punishable as a nonmoving violation as provided in chapter 318.
  13. Florida Statute 316.415 (refelctors): Every motorcycle and motor-driven cycle shall carry on the rear, either as part of the taillamp or separately, at least one red reflector. A violation of this section is a noncriminal traffic infraction, punishable as a nonmoving violation as provided in chapter 318.
  14. Florida Statute 316.420 (stop lamps): Every motorcycle and motor-driven cycle shall be equipped with at least one stop lamp meeting the requirements of s. 316.234(1). A violation of this section is a noncriminal traffic infraction, punishable as a nonmoving violation as provided in chapter 318.
  15. Florida Statute 316.425 (lamps on parked motorcycles): (1) Every motorcycle must comply with the provisions of s. 316.229 regarding lamps on parked vehicles and the use thereof. (2) Motor-driven cycles need not be equipped with parking lamps or otherwise comply with the provisions of s. 316.229. (3) A violation of this section is a noncriminal traffic infraction, punishable as a nonmoving violation as provided in chapter 318.
  16. Florida Statute 316.430 (multiple-beam road-lighting equipment): (1) Every motorcycle other than a motor-driven cycle shall be equipped with multiple-beam road-lighting equipment. (2) Such equipment shall: (a) Reveal persons and vehicles at a distance of at least 300 feet ahead when the uppermost distribution of light is selected; (b) Reveal persons and vehicles at a distance of at least 150 feet ahead when the lowermost distribution of light is selected. On a straight, level road under any condition of loading none of the high intensity portion of the beam shall be directed to strike the eyes of an approaching driver. (3) A violation of this section is a noncriminal traffic infraction, punishable as a nonmoving violation as provided in chapter 318.
  17. Florida Statute 316.440 (brake equipment required): Every motor-driven cycle must comply with the provisions of s. 316.261, except that: (1) Motorcycles and motor-driven cycles need not be equipped with parking brakes. (2) The wheel of a sidecar attached to a motorcycle or to a motor-driven cycle, and the front wheel of a motor-driven cycle, need not be equipped with brakes, provided that such motorcycle or motor-driven cycle is capable of complying with the performance requirements of this chapter. A violation of this section is a noncriminal traffic infraction, punishable as a nonmoving violation as provided in chapter 318.
  18. Florida Statute 316.445 (performance ability of motorcycle brakes): (1) Every motorcycle and motor-driven cycle, at all times and under all conditions of loading, upon application of the service brake, shall be capable of: (a) Developing a braking force that is not less than 43.5 percent of its gross weight; (b) Decelerating to a stop from not more than 20 miles per hour at not less than 14 feet per second per second; and (c) Stopping from a speed of 20 miles per hour in not more than 30 feet, such distance to be measured from the point at which movement of the service brake pedal or control begins. (2) Tests for deceleration and stopping distance shall be made on a substantially level (not to exceed plus or minus 1 percent grade), dry, smooth, hard surface that is free from loose material. (3) A violation of this section is a noncriminal traffic infraction, punishable as a nonmoving violation as provided in chapter 318.
  19. Florida Statute 316.455 (other equipment): Every motorcycle and every motor-driven cycle when operated upon a highway shall comply with the requirements and limitations of: (1) Section 316.271(1) and (2) on the requirement for horns and warning devices. (2) Section 316.271(3) on the requirement for the use of horns. (3) Section 316.271(4) on the requirement for sirens, whistles, and bells. (4) Section 316.271(5) on the requirement for theft alarms. (5) Section 316.271(6) on the requirement for emergency vehicles. (6) Section 316.272 on the requirement for mufflers and prevention of noise. (7) Section 316.294 on the requirement for mirrors. A violation of this section is a noncriminal traffic infraction, punishable as a nonmoving violation as provided in chapter 318.
  20. Florida Statute 316.613 (child restraint systems): (1)(a) Every operator of a motor vehicle as defined in this section, while transporting a child in a motor vehicle operated on the roadways, streets, or highways of this state, shall, if the child is 5 years of age or younger, provide for protection of the child by properly using a crash-tested, federally approved child restraint device. For children aged through 3 years, such restraint device must be a separate carrier or a vehicle manufacturer’s integrated child seat. For children aged 4 through 5 years, a separate carrier, an integrated child seat, or a seat belt may be used. (b) The department shall provide notice of the requirement for child restraint devices, which notice shall accompany the delivery of each motor vehicle license tag.(2) As used in this section, the term “motor vehicle” means a motor vehicle as defined in s. 316.003 that is operated on the roadways, streets, and highways of the state. The term does not include: (a) A school bus as defined in s. 316.003(45). (b) A bus used for the transportation of persons for compensation, other than a bus regularly used to transport children to or from school, as defined in s. 316.615(1)(b), or in conjunction with school activities. (c) A farm tractor or implement of husbandry. (d) A truck having a gross vehicle weight rating of more than 26,000 pounds. (e) A motorcycle, moped, or bicycle. (3) The failure to provide and use a child passenger restraint shall not be considered comparative negligence, nor shall such failure be admissible as evidence in the trial of any civil action with regard to negligence.(4) It is the legislative intent that all state, county, and local law enforcement agencies, and safety councils, in recognition of the problems with child death and injury from unrestrained occupancy in motor vehicles, conduct a continuing safety and public awareness campaign as to the magnitude of the problem. (5) Any person who violates this section commits a moving violation, punishable as provided in chapter 318 and shall have 3 points assessed against his or her driver license as set forth in s. 322.27. In lieu of the penalty specified in s. 318.18 and the assessment of points, a person who violates this section may elect, with the court’s approval, to participate in a child restraint safety program approved by the chief judge of the circuit in which the violation occurs, and, upon completing such program, the penalty specified in chapter 318 and associated costs may be waived at the court’s discretion and the assessment of points shall be waived. The child restraint safety program must use a course approved by the Department of Highway Safety and Motor Vehicles, and the fee for the course must bear a reasonable relationship to the cost of providing the course. (6) The child restraint requirements imposed by this section do not apply to a chauffeur-driven taxi, limousine, sedan, van, bus, motor coach, or other passenger vehicle if the operator and the motor vehicle are hired and used for the transportation of persons for compensation. It is the obligation and responsibility of the parent, guardian, or other person responsible for a child’s welfare, as defined in s. 39.01(47), to comply with the requirements of this section.
  21. Florida Statute 316.614 (safety belt usage): (1) This section may be cited as the “Florida Safety Belt Law.” (2) It is the policy of this state that enactment of this section is intended to be compatible with the continued support by the state for federal safety standards requiring automatic crash protection, and the enactment of this section should not be used in any manner to rescind or delay the implementation of the federal automatic crash protection system requirements of Federal Motor Safety Standard 208 as set forth in S4.1.2.1 thereof, as entered on July 17, 1984, for new cars. (3) As used in this section: (a) “Motor vehicle” means a motor vehicle as defined in s. 316.003 which is operated on the roadways, streets, and highways of this state. The term does not include: 1. A school bus. 2. A bus used for the transportation of persons for compensation. 3. A farm tractor or implement of husbandry. 4. A truck having a gross vehicle weight rating of more than 26,000 pounds. 5. A motorcycle, moped, or bicycle. (b) “Safety belt” means a seat belt assembly that meets the requirements established under Federal Motor Vehicle Safety Standard No. 208, 49 C.F.R. s. 571.208.(c) “Restrained by a safety belt” means being restricted by an appropriately adjusted safety belt which is properly fastened at all times when a motor vehicle is in motion. (4) It is unlawful for any person:(a) To operate a motor vehicle in this state unless each passenger and the operator of the vehicle under the age of 18 years are restrained by a safety belt or by a child restraint device pursuant to s. 316.613, if applicable; or (b) To operate a motor vehicle in this state unless the person is restrained by a safety belt. (5) It is unlawful for any person 18 years of age or older to be a passenger in the front seat of a motor vehicle unless such person is restrained by a safety belt when the vehicle is in motion. (6)(a) Neither a person who is certified by a physician as having a medical condition that causes the use of a safety belt to be inappropriate or dangerous nor an employee of a newspaper home delivery service while in the course of his or her employment delivering newspapers on home delivery routes is required to be restrained by a safety belt. (b) An employee of a solid waste or recyclable collection service is not required to be restrained by a safety belt while in the course of employment collecting solid waste or recyclables on designated routes. (c) The requirements of this section do not apply to the living quarters of a recreational vehicle or a space within a truck body primarily intended for merchandise or property. (d) The requirements of this section do not apply to motor vehicles that are not required to be equipped with safety belts under federal law. (7) It is the intent of the Legislature that all state, county, and local law enforcement agencies, safety councils, and public school systems, in recognition of the fatalities and injuries attributed to unrestrained occupancy of motor vehicles, shall conduct a continuing safety and public awareness campaign as to the magnitude of the problem and adopt programs designed to encourage compliance with the safety belt usage requirements of this section. (8) Any person who violates the provisions of this section commits a nonmoving violation, punishable as provided in chapter 318. (9) By January 1, 2006, each law enforcement agency in this state shall adopt departmental policies to prohibit the practice of racial profiling. When a law enforcement officer issues a citation for a violation of this section, the law enforcement officer must record the race and ethnicity of the violator. All law enforcement agencies must maintain such information and forward the information to the department in a form and manner determined by the department. The department shall collect this information by jurisdiction and annually report the data to the Governor, the President of the Senate, and the Speaker of the House of Representatives. The report must show separate statewide totals for the state’s county sheriffs and municipal law enforcement agencies, state law enforcement agencies, and state university law enforcement agencies. (10) A violation of the provisions of this section shall not constitute negligence per se, nor shall such violation be used as prima facie evidence of negligence or be considered in mitigation of damages, but such violation may be considered as evidence of comparative negligence, in any civil action.

Relevant Florida Statutes Governing the Licensing and Education of Motorcycle Riders on Florida Roadways:

  1. Florida Statute 322.0255 (Florida motorcycle safety education program): (1) The department shall establish a Florida Motorcycle Safety Education Program. The program shall be funded as provided by ss. 320.08 and 322.025. (2) The department shall establish and administer motorcycle safety courses. The department shall prescribe the curricula for such courses, which must include a minimum of 12 hours of instruction, at least 6 hours of which shall consist of actual motorcycle operation. The department may adopt or include courses, curricula, or materials developed by the Motorcycle Safety Foundation or by other traffic safety groups determined to be comparable by the department. (3) The department shall prescribe the qualifications for certification of instructors in the program. The department may include the qualifications specified by the Motorcycle Safety Foundation or by other traffic safety groups determined to be comparable by the department, and may recognize, for purposes of certification, instructor training provided by the Motorcycle Safety Foundation or by other traffic safety groups determined to be comparable by the department, as fulfilling the department’s training requirements. (4) Every organization shall be approved by the department before it may conduct motorcycle safety courses. The department may enter into agreements with organizations to provide for such courses. Such agreements shall include provisions for compensation of the costs of conducting the courses. Students may be required to purchase insurance as required by the organization providing the course. (5) Each organization that provides an approved motorcycle safety course may charge a registration fee, not to exceed $20 per student. This fee must be refunded if the student completes the course. However, any student who registers for, and does not complete, the course must forfeit his or her registration fee. Forfeited fees may be retained by the organization that conducts the course. (6) The department may adopt rules to implement this section. (7) On and after January 1, 1989, every first-time applicant for licensure to operate a motorcycle who is under 21 years of age shall be required to complete a motorcycle education course as established pursuant to this section. Proof of completion of such education course shall be presented to the driver license examining office prior to such licensure to operate a motorcycle.
  2. Florida Statute 322.12 (requirements to get a motorcycle drivers license): (1) It is the intent of the Legislature that every applicant for an original driver’s license in this state be required to pass an examination pursuant to this section. However, the department may waive the knowledge, endorsement, and skills tests for an applicant who is otherwise qualified and who surrenders a valid driver’s license from another state or a province of Canada, or a valid driver’s license issued by the United States Armed Forces, if the driver applies for a Florida license of an equal or lesser classification. Any applicant who fails to pass the initial knowledge test incurs a $10 fee for each subsequent test, to be deposited into the Highway Safety Operating Trust Fund. Any applicant who fails to pass the initial skills test incurs a $20 fee for each subsequent test, to be deposited into the Highway Safety Operating Trust Fund. A person who seeks to retain a hazardous-materials endorsement, pursuant to s. 322.57(1)(d), must pass the hazardous-materials test, upon surrendering his or her commercial driver’s license, if the person has not taken and passed the hazardous-materials test within 2 years before applying for a commercial driver’s license in this state. (2) The department shall examine every applicant for a driver’s license, including an applicant who is licensed in another state or country, except as otherwise provided in this chapter. A person who holds a learner’s driver’s license as provided for in s. 322.1615 is not required to pay a fee for successfully completing the examination showing his or her ability to operate a motor vehicle as provided for herein and need not pay the fee for a replacement license as provided in s. 322.17(2). (3) For an applicant for a Class E driver’s license, such examination shall include a test of the applicant’s eyesight given by the driver’s license examiner designated by the department or by a licensed ophthalmologist, optometrist, or physician and a test of the applicant’s hearing given by a driver’s license examiner or a licensed physician. The examination shall also include a test of the applicant’s ability to read and understand highway signs regulating, warning, and directing traffic; his or her knowledge of the traffic laws of this state, including laws regulating driving under the influence of alcohol or controlled substances, driving with an unlawful blood-alcohol level, and driving while intoxicated; and his or her knowledge of the effects of alcohol and controlled substances upon persons and the dangers of driving a motor vehicle while under the influence of alcohol or controlled substances and shall include an actual demonstration of ability to exercise ordinary and reasonable control in the operation of a motor vehicle. (4) The examination for an applicant for a commercial driver’s license shall include a test of the applicant’s eyesight given by a driver’s license examiner designated by the department or by a licensed ophthalmologist, optometrist, or physician and a test of the applicant’s hearing given by a driver’s license examiner or a licensed physician. The examination shall also include a test of the applicant’s ability to read and understand highway signs regulating, warning, and directing traffic; his or her knowledge of the traffic laws of this state pertaining to the class of motor vehicle which he or she is applying to be licensed to operate, including laws regulating driving under the influence of alcohol or controlled substances, driving with an unlawful blood-alcohol level, and driving while intoxicated; his or her knowledge of the effects of alcohol and controlled substances and the dangers of driving a motor vehicle after having consumed alcohol or controlled substances; and his or her knowledge of any special skills, requirements, or precautions necessary for the safe operation of the class of vehicle which he or she is applying to be licensed to operate. In addition, the examination shall include an actual demonstration of the applicant’s ability to exercise ordinary and reasonable control in the safe operation of a motor vehicle or combination of vehicles of the type covered by the license classification which the applicant is seeking, including an examination of the applicant’s ability to perform an inspection of his or her vehicle. (a) The portion of the examination which tests an applicant’s safe driving ability shall be administered by the department or by an entity authorized by the department to administer such examination, pursuant to s. 322.56. Such examination shall be administered at a location approved by the department. (b) A person who seeks to retain a hazardous-materials endorsement must, upon renewal, pass the test for such endorsement as specified in s. 322.57(1)(d), if the person has not taken and passed the hazardous-materials test within 2 years preceding his or her application for a commercial driver’s license in this state. (5)(a) The department shall formulate a separate examination for applicants for licenses to operate motorcycles. Any applicant for a driver’s license who wishes to operate a motorcycle, and who is otherwise qualified, must successfully complete such an examination, which is in addition to the examination administered under subsection (3). The examination must test the applicant’s knowledge of the operation of a motorcycle and of any traffic laws specifically relating thereto and must include an actual demonstration of his or her ability to exercise ordinary and reasonable control in the operation of a motorcycle. Any applicant who fails to pass the initial knowledge examination will incur a $5 fee for each subsequent examination, to be deposited into the Highway Safety Operating Trust Fund. Any applicant who fails to pass the initial skills examination will incur a $10 fee for each subsequent examination, to be deposited into the Highway Safety Operating Trust Fund. In the formulation of the examination, the department shall consider the use of the Motorcycle Operator Skills Test and the Motorcycle in Traffic Test offered by the Motorcycle Safety Foundation. The department shall indicate on the license of any person who successfully completes the examination that the licensee is authorized to operate a motorcycle. If the applicant wishes to be licensed to operate a motorcycle only, he or she need not take the skill or road test required under subsection (3) for the operation of a motor vehicle, and the department shall indicate such a limitation on his or her license as a restriction. Every first-time applicant for licensure to operate a motorcycle must provide proof of completion of a motorcycle safety course, as provided for in s. 322.0255, before the applicant may be licensed to operate a motorcycle. (b) The department may exempt any applicant from the examination provided in this subsection if the applicant presents a certificate showing successful completion of a course approved by the department, which course includes a similar examination of the knowledge and skill of the applicant in the operation of a motorcycle.
  3. Florida Statute 322.03(4) (a drivers license is required to operate a motorcycle on Florida roadways): (4) A person may not operate a motorcycle unless he or she holds a driver’s license that authorizes such operation, subject to the appropriate restrictions and endorsements.It should be noted a Florida court has held that gas powered mini motorcycle fell within statutory definition of “motor vehicle,” as it was self-propelled, not operated upon rails or guideway, and did not fall within any of the statutory exclusions, in that it was not moved solely by human power, nor was it a motorized wheelchair, and, thus, defendant was required to have a license to operate it.
  4. Florida Statute 322.57(1)(g) (tests of knowledge concerning specified vehicles): (1) In addition to fulfilling any other driver’s licensing requirements of this chapter, a person who: (g) Drives a motorcycle must successfully complete a test of his or her knowledge concerning the safe operation of such vehicles and a test of his or her driving skills on such vehicle. A person who successfully completes such tests shall be issued an endorsement if he or she is licensed to drive another type of motor vehicle. A person who successfully completes such tests and who is not licensed to drive another type of motor vehicle shall be issued a Class E driver’s license that is clearly restricted to motorcycle use only.

Moral of the Story: as you can see, if you wish to drive or ride a motorcycle on Florida’s highways, whether in in Coral Springs, Cooper City, Hallandale, Boca Raton, West Kendall, Homestead, Key Biscayne, Weston, Pompano Beach, Tampa, Jacksonville, Orlando, Naples, Fort Myers, Stuart, Martin or another area within Miami-Dade, Fort Lauderdale, Palm Beach or the Florida Keys, there is a lot to think about when it comes to Florida motorcycle laws for riders and passengers, securing a motorcycle drivers license, having the equipment required to drive a motorcycle (even though the helmet is no longer required), and complying with Florida’s traffic laws in order to avoid being injured in a serious motorcycle accident which could require the assistance of a Miami Florida Motorcycle accident attorney.

Florida Motorcycle Accidents – Injured Motorists and the Relevant Law Applicable to Motorcycle Insurance Claims

Florida Motorcycle Accident Law_fightsforyou.net

Dramatization/Actor – Not An Actual Event

Every year, thousands of accidents occur on South Florida roadways (particularly in the Florida Keys down in Monroe County, including Key Largo, Marathon, Islamorada and Tavernier — these roads are considered prime motorcycle accident territory given the amount of riders that ride down US 1, a two-laned highway for many portions of the road), wherein many crashes involve motorists who are seriously injured as a driver, passenger or even pedestrian (if riding a bike or simply walking down the street).  Many of these accidents involve motorcycle riders and/or passengers who are rear ended, cut off or struck by cars that are speeding.  Unfortunately, when riders are involved in a motorcycle crash, they usually sustain catastrophic injuries such as an amputation, brain injury (including traumatic brain injury – TBI), head injury (concussion), back injury (lumbar or thoracic disc tears, bulges or herniations), shoulder injury (torn labrum, tendons, ligaments or rotator cuff), neck injury (whiplash, cervical disc tears, bulges or herniations), chest injury (bruised or fractured sternum), face injury (fractured cheek or orbital bones), degloving injury, paralysis (quadriplegic, paraplegic or other forms of spinal cord injuries), burn injury, road rash, or severely broken legs, arms, feet, elbows, wrists, hips (pelvis), knees, ankles or vertebrae (typically requiring surgeries with implantation of hardware).  Sometimes, a motorcycle crash is bad enough wherein the rider, driver or passenger is killed, ie., a “wrongful death.” The question most often asked is what law is applicable to Florida motorcycle accident claims and what are the layers of Florida motorcycle insurance wherein you may be able to recover money for your injuries and damages.

FLORIDA MOTORCYCLE ACCIDENTS AND THE MOST COMMON CAUSES: whether one is involved in a car, truck or motorcycle accident, some of the most common causes of accidents on our South Florida road ways include the following:

    1. speeding;
    2. failing to yield;
    3. sudden lane changes or cutting vehicles off (especially without the use of an indicator or blinker);
    4. following too closely (should have multiple car lengths between vehicles depending on the speeds);
    5. weaving in and out of traffic (especially motorcycles, such as “lane splitting”);
    6. driving while intoxicated (DWI) or driving under the influence (DUI) of drugs and/or alcohol and/or prescription medication;
    7. driving while distracted or using a cell phone (calling or texting);
    8. driving while tired or fatigued, or even falling asleep at the wheel;
    9. road defects (potholes, uneven pavement (dips, rivets, cracks, loose gravel), drop offs)
    10. road sign or traffic control issues (blocked signs by vegetation, out of order lights, downed signs);
    11. poorly designed streets, highways and roadways;
    12. construction and crews improperly warning oncoming motorists, cars, trucks and other motor vehicles;
    13. improperly or poorly lit streets, highways and roadways;
    14. defective motorcycle part or design;
    15. tire blowouts; and
    16. bad weather (whether fog, rain or wind).

For a discussion on Florida Motorcycle laws and regulations governing motorcycle safety, equipment (including Florida’s motorcycle helmet law and the law regarding protective eye wear), age requirements and restrictions, and Florida’s traffic laws such as the one on lane splitting, see my article on the Florida law applicable to motorcycle owners and operators.

FLORIDA MOTORCYCLE CRASHES AND APPLICABLE LAW TO INJURED MOTORISTS:  when a motorcycle rider or passenger (whether on a Harley, sport bike, cruiser (such as a Harley or chopper), standard (muscle bike or Ducati), crotch rocket, touring bike, dirt bike (for off road, such as motocross, enduro, rallies, trail, trials and track racing), dual purpose/sport (supermoto), police motorcycle, moped, sidecar, underbones or scooter) is involved in a car accident or crash, the following are some of the relevant laws applicable to these types of Florida motorcycle injury claims:

State Uniform Traffic Control Definitions (Chapter 316):

    1. Florida Statute section 316.003(22): under Florida’s state uniform traffic control section of the Florida statutes, a motorcycle is defined as any motor vehicle having a seat or saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground, but excluding a tractor or a moped.
    2. Florida Statute section 316.003(21): under Florida’s state uniform traffic control section of the Florida statutes, a motor vehicle is defined as a self-propelled vehicle not operated upon rails or guideway, but not including any bicycle, motorized scooter, electric personal assistive mobility device, swamp buggy, or moped.
    3. Florida Statute section 316.003(77): under Florida’s state uniform traffic control section of the Florida statutes, a moped is defined as any vehicle with pedals to permit propulsion by human power, having a seat or saddle for the use of the rider and designed to travel on not more than three wheels; with a motor rated not in excess of 2 brake horsepower and not capable of propelling the vehicle at a speed greater than 30 miles per hour on level ground; and with a power-drive system that functions directly or automatically without clutching or shifting gears by the operator after the drive system is engaged. If an internal combustion engine is used, the displacement may not exceed 50 cubic centimeters.
    4. Florida Statute section 316.003(82): under Florida’s state uniform traffic control section of the Florida statutes, a motorized scooter is defined as any vehicle not having a seat or saddle for the use of the rider, designed to travel on not more than three wheels, and not capable of propelling the vehicle at a speed greater than 30 miles per hour on level ground.
    5. Florida Statute section 316.003(89): under Florida’s state uniform traffic control section of the Florida statutes, a swamp buggy is defined as a motorized off-road vehicle that is designed or modified to travel over swampy or varied terrain and that may use large tires or tracks operated from an elevated platform. The term does not include any vehicle defined in chapter 261 or otherwise defined or classified in this chapter.

Florida’s Motor Vehicle License Definitions (Chapter 320):

    1. Florida Statute section 320.01(1)(a): under Florida’s motor vehicle license section of the Florida statutes, a motor vehicle is defined as an automobile, motorcycle, truck, trailer, semitrailer, truck tractor and semitrailer combination, or any other vehicle operated on the roads of this state, used to transport persons or property, and propelled by power other than muscular power, but the term does not include traction engines, road rollers, special mobile equipment as defined in s. 316.003(48), vehicles that run only upon a track, bicycles, swamp buggies, or mopeds.
    2. Florida Statute section 320.01(26): under Florida’s motor vehicle license section of the Florida statutes, a motorcycle is defined as any motor vehicle having a seat or saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground, excluding a vehicle in which the operator is enclosed by a cabin unless it meets the requirements set forth by the National Highway Traffic Safety Administration for a motorcycle. The term “motorcycle” does not include a tractor or a moped.
    3. Florida Statute section 320.01(27): under Florida’s motor vehicle license section of the Florida statutes, a moped is defined as any vehicle with pedals to permit propulsion by human power, having a seat or saddle for the use of the rider and designed to travel on not more than three wheels, with a motor rated not in excess of 2 brake horsepower and not capable of propelling the vehicle at a speed greater than 30 miles per hour on level ground, and with a power-drive system that functions directly or automatically without clutching or shifting gears by the operator after the drive system is engaged. If an internal combustion engine is used, the displacement may not exceed 50 cubic centimeters.
    4. Florida Statute section 320.01(45): under Florida’s motor vehicle license section of the Florida statutes, a swamp buggy is defined as a motorized off-road vehicle that is designed or modified to travel over swampy or varied terrain and that may use large tires or tracks operated from an elevated platform. The term does not include any vehicle defined in chapter 261 or otherwise defined or classified in this chapter.

Florida’s Drivers License Definitions (Chapter 322):

    1. Florida Statute section 322.01(26): under Florida’s driver’s license section of the Florida statutes, a motorcycle is defined as a motor vehicle powered by a motor with a displacement of more than 50 cubic centimeters, having a seat or saddle for the use of the rider, and designed to travel on not more than three wheels in contact with the ground, but excluding a tractor, tri-vehicle, or moped.
    2. Florida Statute section 322.01(27): under Florida’s driver’s license section of the Florida statutes, a motor vehicle is defined as any self-propelled vehicle, including a motor vehicle combination, not operated upon rails or guideway, excluding vehicles moved solely by human power, motorized wheelchairs, and motorized bicycles as defined in section 316.003.
    3. Florida Statute section 322.01(43): under Florida’s driver’s license section of the Florida statutes, a vehicle is defined as every device in, upon, or by which any person or property is or may be transported or drawn upon a public highway or operated upon rails or guideway, except a bicycle, motorized wheelchair, or motorized bicycle.
    4. Florida Statute section 322.01(46): under Florida’s driver’s license section of the Florida statutes, a tri-vehicle is defined as  an enclosed three-wheeled passenger vehicle that:

      (a) Is designed to operate with three wheels in contact with the ground; (b) Has a minimum unladen weight of 900 pounds; (c) Has a single, completely enclosed, occupant compartment;(d) Is produced in a minimum quantity of 300 in any calendar year; (e) Is capable of a speed greater than 60 miles per hour on level ground; and (f) Is equipped with: 1. Seats that are certified by the vehicle manufacturer to meet the requirements of Federal Motor Vehicle Safety Standard No. 207, “Seating systems” (49 C.F.R. s. 571.207); 2. A steering wheel used to maneuver the vehicle; 3. A propulsion unit located forward or aft of the enclosed occupant compartment; 4. A seat belt for each vehicle occupant certified to meet the requirements of Federal Motor Vehicle Safety Standard No. 209, “Seat belt assemblies” (49 C.F.R. s. 571.209); 5. A windshield and an appropriate windshield wiper and washer system that are certified by the vehicle manufacturer to meet the requirements of Federal Motor Vehicle Safety Standard No. 205, “Glazing Materials” (49 C.F.R. s. 571.205) and Federal Motor Vehicle Safety Standard No. 104, “Windshield Wiping and Washing Systems” (49 C.F.R. s. 571.104); and 6. A vehicle structure certified by the vehicle manufacturer to meet the requirements of Federal Motor Vehicle Safety Standard No. 216, “Rollover crush resistance” (49 C.F.R. s. 571.216).

Florida’s Motor Vehicle No-Fault Law Definitions (Chapter 627):

    1. Florida Statute section 627.732(3): under Florida’s Motor Vehicle No-Fault Law Section of the Florida statutes, a motor vehicle is defined as any self-propelled vehicle with four or more wheels which is of a type both designed and required to be licensed for use on the highways of this state and any trailer or semitrailer designed for use with such vehicle and includes: (a) A “private passenger motor vehicle,” which is any motor vehicle which is a sedan, station wagon, or jeep-type vehicle and, if not used primarily for occupational, professional, or business purposes, a motor vehicle of the pickup, panel, van, camper, or motor home type; and (b) A “commercial motor vehicle,” which is any motor vehicle which is not a private passenger motor vehicle.

      The term “motor vehicle” does not include a mobile home or any motor vehicle which is used in mass transit, other than public school transportation, and designed to transport more than five passengers exclusive of the operator of the motor vehicle and which is owned by a municipality, a transit authority, or a political subdivision of the state.

FLORIDA MOTORCYCLE RIDERS OWNERS OPERATORS ARE NOT REQUIRED TO SECURE PERSONAL INJURY PROTECTION BENEFITS (PIP) UNDER FLORIDA LAW AS PART OF THEIR INSURANCE REQUIREMENTS: under Florida Statute section 627.732(3), Florida’s Motor Vehicle No-Fault Law Section of the Florida statutes, because a motor vehicle is defined as any self-propelled vehicle with four or more wheels, owners of motorcycles, mopeds, scooters, trikes, motorcycles with a side car or  tri-vehicle’s, are not required to secure the $10,000 in Florida personal injury protection insurance that owners of motor vehicles are required to purchase in order to drive on the roadways. For more on Florida’s new personal injury protection (PIP) law, see my previous article.

Florida Motor Vehicle Financial Responsibility Law Definitions (Chapter 324):

  1. Florida Statute section 324.021(1): under Florida’s Financial Responsibility Law Section of the Florida statutes, a motor vehicle is defined as every self-propelled vehicle which is designed and required to be licensed for use upon a highway, including trailers and semitrailers designed for use with such vehicles, except traction engines, road rollers, farm tractors, power shovels, and well drillers, and every vehicle which is propelled by electric power obtained from overhead wires but not operated upon rails, but not including any bicycle or moped. However, the term “motor vehicle” shall not include any motor vehicle as defined in s. 627.732(3) when the owner of such vehicle has complied with the requirements of ss. 627.730-627.7405, inclusive, unless the provisions of s. 324.051 apply; and, in such case, the applicable proof of insurance provisions of s. 320.02 apply.

FLORIDA MOTORCYCLE RIDERS OWNERS OPERATORS MUST COMPLY WITH FLORIDA’S FINANCIAL RESPONSIBILITY LAWS AND BE ABLE TO PROVE THEIR ABILITY TO PROVIDE $10,000 PER PERSON OR $20,000 PER ACCIDENT FOR BODILY INJURY LIABILITY, AND $10,000 PER ACCIDENT IN PROPERTY DAMAGE LIABILITY: under Florida Statute section 324.021(1), Florida’s Financial Responsibility Law Section of the Florida statutes, a motor vehicle is defined as every self-propelled vehicle which is designed and required to be licensed for use upon a highway.  The the Florida Supreme Court has held that this definition of a motor vehicle within Florida’s Financial Responsibility, includes motorcycles.  As such, pursuant to Florida Statute section 324.021(7), all owners and operators of motorcycles must prove their ability (ie., in general, you are not required to secure this type of insurance but must be able to respond in case of a motorcycle accident or crash) to respond in damages for liability on account of crashes arising out of the use of a motor vehicle (ie., motorcycle):

(a) In the amount of $10,000 because of bodily injury to, or death of, one person in any one crash;

(b) Subject to such limits for one person, in the amount of $20,000 because of bodily injury to, or death of, two or more persons in any one crash;

(c) In the amount of $10,000 because of injury to, or destruction of, property of others in any one crash; and

(d) With respect to commercial motor vehicles and nonpublic sector buses, in the amounts specified in ss. 627.7415 and 627.742, respectively.

FLORIDA MOTORCYCLE RIDERS OWNERS OPERATORS ARE GENERALLY NOT REQUIRED TO SECURE ANY INSURANCE (PIP, BODILY INJURY LIABILITY AND/OR PROPERTY DAMAGE LIABILITY) IN ORDER TO OPERATE A MOTORCYCLE ON FLORIDA ROADS:  under Florida law, in general, operators of cars, trucks, etc., are required to have $10,000 in PIP insurance and $10,000 in property damage liability insurance (bodily injury liability insurance is optional).

As for motorcycles, as stated previously, personal injury protection insurance is not required (must have four wheels).  Moreover, motorcycle riders, owners, operators and/or drivers are also not required to secure $10,000 of property damage liability insurance.  Pursuant to Florida Statute 324.022(1), every owner or operator of a motor vehicle required to be registered in this state shall establish and maintain the ability to respond in damages for liability on account of accidents arising out of the use of the motor vehicle in the amount of $10,000 because of damage to, or destruction of, property of others in any one crash. The requirements of this section may be met by one of the methods established in s. 324.031; by self-insuring as authorized by s. 768.28(16); or by maintaining an insurance policy providing coverage for property damage liability in the amount of at least $10,000 because of damage to, or destruction of, property of others in any one accident arising out of the use of the motor vehicle. The requirements of this section may also be met by having a policy which provides coverage in the amount of at least $30,000 for combined property damage liability and bodily injury liability for any one crash arising out of the use of the motor vehicle. The policy, with respect to coverage for property damage liability, must meet the applicable requirements of s. 324.151, subject to the usual policy exclusions that have been approved in policy forms by the Office of Insurance Regulation. No insurer shall have any duty to defend uncovered claims irrespective of their joinder with covered claims.

It should be noted that under this same section, to wit, 324.022(2), a “motor vehicle” is defined as any self-propelled vehicle that has four or more wheels (ie., excluding motorcycles, trikes, scooters, mopeds and the like) and that is of a type designed and required to be licensed for use on the highways of this state, and any trailer or semitrailer designed for use with such vehicle. The term does not include:

1. A mobile home.

2. A motor vehicle that is used in mass transit and designed to transport more than five passengers, exclusive of the operator of the motor vehicle, and that is owned by a municipality, transit authority, or political subdivision of the state.

3. A school bus as defined in s. 1006.25.

4. A vehicle providing for-hire transportation that is subject to the provisions of s. 324.031. A taxicab shall maintain security as required under s. 324.032(1).

Thus, Motorcycles, mopeds, scooters, trikes and the like (all of which have less the four wheels) are not required to secure a policy of insurance for property damage liability (ie., when you are in an automobile accident, are at fault and cause property damage to another vehicle).  Moreover, under Florida Statute s. 324.023, bodily injury liability insurance is only required if you have been found guilty (by adjudication or guilt) or plead no contest to driving under the influence. Under  s. 324.023, every owner or operator of a motor vehicle (this definition is  not limited to four or more wheels) that is required to be registered in this state, or that is located within this state, and who, regardless of adjudication of guilt, has been found guilty of or entered a plea of guilty or nolo contendere to a charge of driving under the influence under s. 316.193 after October 1, 2007, shall, by one of the methods established in s. 324.031(1) or (2), establish and maintain the ability to respond in damages for liability on account of accidents arising out of the use of a motor vehicle in the amount of $100,000 because of bodily injury to, or death of, one person in any one crash and, subject to such limits for one person, in the amount of $300,000 because of bodily injury to, or death of, two or more persons in any one crash and in the amount of $50,000 because of property damage in any one crash. If the owner or operator chooses to establish and maintain such ability by furnishing a certificate of deposit pursuant to s. 324.031(2), such certificate of deposit must be at least $350,000. Such higher limits must be carried for a minimum period of 3 years. If the owner or operator has not been convicted of driving under the influence or a felony traffic offense for a period of 3 years from the date of reinstatement of driving privileges for a violation of s. 316.193, the owner or operator shall be exempt from this section.

IN CONCLUSION – FLORIDA MOTORCYCLE INSURANCE REQUIREMENTS: in general, all Florida Motorcycle riders, owners, drivers and/or operators are not required to carry personal injury protection (PIP) no fault insurance, nor are they required to carry bodily injury liability or property damage liability insurance.  However, if you have been found guilty (by adjudication or plea of guilty) or plead no contest to driving under the influence after October 1, 2007, you are required to secure insurance for bodily injury liability ($100,000 per person/$300,000 per accident) and property damage liability ($50,000 per accident or crash). Notwithstanding the aforementioned, all Florida motorcycle owners and operators must still be able to comply with Florida’s financial responsibility laws under Florida Statute section 324.021(7), to wit, they must be able to respond to a judgment in case of a motorcycle accident of crash in the amount of $10,000 per person and/or $20,000 per accident for bodily injury liability, and $10,000 per accident in property damage liability.

FLORIDA MOTORCYCLE RIDERS OWNERS DRIVERS OPERATORS CAN PURCHASE UNINSURED (UM) AND/OR UNDERINSURED (UIM) MOTORIST INSURANCE:  Florida UM and UIM coverage can provide one with another source of benefits when the adverse owner and/or operator who was in the motorcycle accident or crash with you, has no insurance or their limits are too low (drivers and owners typically only have $10,000 in bodily injury liability limits).  For an extensive discussion on Florida Uninsured and/or Underinsured Motorist Insurance Coverage, see my previous article.

FLORIDA MOTORCYCLE INJURED MOTORISTS DO NOT HAVE TO PROVE PERMANENCY TO SECURE PAIN AND SUFFERING AS DAMAGES IN A CLAIM OR LAWSUIT: under Florida Statute section 627.737(2), Florida’s Motor Vehicle No-Fault Law Section of the Florida statutes, in any action of tort brought against the owner, registrant, operator, or occupant of a motor vehicle with respect to which security has been provided as required by ss. 627.730-627.7405, or against any person or organization legally responsible for her or his acts or omissions, a plaintiff may recover damages in tort for pain, suffering, mental anguish, and inconvenience because of bodily injury, sickness, or disease arising out of the ownership, maintenance, operation, or use of such motor vehicle only in the event that the injury or disease consists in whole or in part of: (a) Significant and permanent loss of an important bodily function; (b) Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement; (c) Significant and permanent scarring or disfigurement; and/or (d) Death.

Because the definition of a “motor vehicle” under Chapter 627 is a self-propelled vehicle with “four or more wheels,” injured motorists arising out of accidents or crashes where they are driving a motorcycle, moped, scooter or  tri-vehicle, are not required to prove permanency in order to recover past or future pain and suffering damages within a Florida lawsuit or claim.

Moral of the Story: as you can see, whether you are a Florida motorcycle rider, owner, driver, passenger or operator, and you are involved in a motorcycle accident or crash in Coral Springs, Cooper City, Hallandale, Boca Raton, Homestead, West Kendall, Key Biscayne, Weston, Pompano Beach, Tamarac, Wilton Manners, Hialeah, Naples, Fort Myers, Stuart, Martin or another area within Miami-Dade, Fort Lauderdale, Palm Beach or the Florida Keys, there is a lot to think about when it comes to securing insurance for your motorcycle, the Florida law you must comply with to drive your motorcycle on the Florida highways, and the law that may be applicable in case you are in a deadly motorcycle accident and require the services of a Florida personal injury attorney to advise you with regards to any motorcycle claims or lawsuits you may have to bring.

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.