I Was Injured in a Rear-End Car Accident in Miami Florida – What Florida Law Applies in Rear-End Collisions (ie., Florida Rear-End Accident Law) With a Car, Truck, Taxi, Motorcycle, Big Rig or 18 Wheeler?

Florida rear-end car collision_accident_fightsforyou.netThe traffic and congestion on South Florida roads is getting worse, especially the rush hour work commute on the Florida turnpike, I-95, I-75, I-4, State Road 27, State Road 41, Alligator Alley and US 1. When there is a lot of traffic, particularly cars, trucks, SUV’s. motorcycles, mopeds, go-cars, taxicabs, limousines, county buses, vans, 18 wheeler’s and big rigs constantly changing lanes and speeding to pass other motor vehicles,  Miami Florida rear-end car accidents are bound to happen. In fact, with the amount of cell phone use and texting while driving, and the rush that everyone is in to get to their destination so quickly, Florida rear-end collisions are very common (especially low speed collisions or fender benders with very little property damage) and can usually be avoided if the rear-end driver was simply paying attention, not speeding, not following too closely (ie., enough car lengths between their vehicle and your vehicle), staying in their lane and not cutting other vehicles off, yielding the right of way, not running through red lights or yellow lights, and braking in time when the traffic in front comes to a sudden stop or complete stop.

When one is involved in a rear-end collision in Florida due to a driver under the influence of drugs or alcohol (DWI or DUI), a question often asked of a Hialeah Florida rear-end accident law attorney or Miami rear-end collision lawyer, is whether they can be found liable or at fault for the accident and can be sued in a lawsuit for bodily injury (ie., pain and suffering and resultant medical bills, hospital bills, surgery, etc.) and motor vehicle property damage (such as when the car is considered a total loss) when they are the car in front or the middle car in a three car accident or pileup. Reason being, in a lot of low speed car collisions where the impact is minor and not serious, while you as the driver being rear-ended are not hurt (perhaps you have bruises, soreness, stiffness or soft tissue injuries such as neck or back pain, sprains and strains that eventually go away with treatment by a chiropractor, physical therapy or massage therapy), sometimes, passengers are not wearing seat belts and can be jolted around the car and thereby sustain injuries due to striking a portion of the car (dashboard, steering wheel or windshield), or the driver of the car that rear-ended you sometimes sustains serious permanent injuries (whiplash is common, head injuries, post concussive syndrome, broken bones and spine fractures, herniated and bulging discs, etc.) that are much worse than the rear-ended vehicle you are driving in – sometimes, fatalities or even death occurs due to Florida rear-end collisions and for which a wrongful death lawsuit or case may arise.  In these scenarios, the driver or passenger in the truck that rear-ended your vehicle could bring a lawsuit arising out of the Homestead rear-end car accident, wherein many of those rear-end car crash cases either go to trial or a settlement is reached with your car insurance carrier.

Question is, what is the Florida rear-end accident law or Florida rear-end collision law applicable to these types of Fort Lauderdale Florida rear-end car accidents? Common sense tells you that the car that rear-ended your vehicle would likely be at fault.  Well, your intuition would be correct, Florida law for the greater part of the last forty plus years said that in Orlando Florida rear-end car collisions, the rear-end driver (as well as owner under Florida’s dangerous instrumentality law) was presumed to be at fault and negligent in causing the car crash unless the presumption was rebutted by evidence that you as the driver of the vehicle in front (1) cut off the other vehicle or suddenly changed lanes; (2) you came to a sudden or unexpected stop or slow down in a place where it would not reasonably be expected; (3) the rear-ending vehicle suffered a mechanical failure (such as engine, brake or tire failure); or (4) you improperly stopped or illegally parked your vehicle in a manner that it was unexpectedly stopped in the middle of the road, street, bridge or highway such that you are the sole cause of the rear-end accident.

However, the Florida Supreme Court recently turned this established Florida rear-end accident law precedent on its head in the rear-end car and motorcycle collision cases of Cevallos v. Rideout, 107 So.3d 348 (Fla. 2012) and Birge v. Charron, 107 So.3d 350 (Fla. 2012), wherein the Court held that in Florida rear-end motor vehicle collision accidents, they are “substantively governed by the principles of comparative negligence such that the presumption of negligence that attached to a rear driver in a rear-end motor vehicle collision could be rebutted in a negligence action by production of evidence of the negligence on the part of the front driver.” Thus, in these Florida rear-end collision accident lawsuits, “where evidence is produced from which a jury could conclude that the front driver in a rear-end collision was negligent in bringing about the collision—or that the negligence of the rear driver was not the sole proximate cause of the accident—the presumption that the rear driver’s negligence was the sole proximate cause of the collision is rebutted, and all issues of disputed fact regarding comparative fault and causation should be submitted to the jury.” In fact, “regardless of whether an injury is caused by the fault of a front driver, a rear driver, or both, [the] comparative fault statute entitles a plaintiff to judgment ‘against each’ liable party, on the basis of that party’s percentage of fault.”

Moral of the Story: if you are injured and a fatality (ie., wrongful death) occurs due to a Miami Florida rear-end automobile accident or a Homestead Florida rear-end collision, whether you are a driver, passenger or owner of the vehicle in front that is rear ended, or are in the truck that rear-ends another motorcycle in a three car pileup, whether it happens in Hardee County, Hendry County, Hernando County, Highlands County, Hillsborough County, Holmes County, Indian River County, Jackson County, Jefferson County, Lafayette County, Lake County, Lee County, Leon County, Levy County, Liberty County, Madison County, Manatee County, Marion County, Martin County, Nassau County, Okaloosa County, Miami Beach, Hialeah, West Kendall, Homestead, the Florida Keys, Englewood, Highlands County, Florida City, Miami Shores, Fort Myers Beach, Miami Lakes, Everglades City, Key West or another area within Miami, Fort Lauderdale or Palm Beach, or anywhere in Miami-Dade, Broward, Palm Beach or Monroe Counties, know that regardless of whether an injury is caused by the fault of a front driver, a rear driver, or both, the comparative fault statute entitles a plaintiff to judgment against each’ liable party on the basis of that party’s percentage of fault, to which this may require the retention of a Miami Florida rear-end accident lawyer or a Miami Beach rear-end collision injury attorney, given the many complexities involved in these types of cases and lawsuits.

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 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.

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

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

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

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

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

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

Florida Wrongful Death Claim – My Mom Was Killed in a Miami Car Accident: What Damages Are Recoverable in Florida for a Wrongful Death?

Unfortunately, everyday on the roadways throughout South Florida, whether in Miami-Dade County, Fort Lauderdale, Palm Beach or Monroe County (to wit, the Florida Keys, including Key Largo, Marathon, Islamorada or Tavernier), family members, friends and co-workers are hurt in accidents due to the fault of another, and sometimes, they are even killed.  These accidents typically involve cars, although they can also involve trucks, motorcycles, scooters, mopeds, and even bicycles.  Not knowing what to do, a surviving relative (ie., a “survivor”) may seek out the assistance of a Miami, Florida, personal injury and accident lawyer, wondering what types of damages may be recoverable when a “wrongful death” occurs.  Well, Florida Statute §768.21 (part of Florida’s Wrongful Death Act) lends some guidance to this question.  According to this statute, the following damages are recoverable for a Florida wrongful death claim or lawsuit:

Survivor:

  1. Each survivor (the loved one’s spouse, children, parents, and, when partly or wholly dependent on the loved one for support or services, any blood relatives and adoptive brothers and sisters) may recover the value of lost support and services from the date of your loved one’s injury to her or his death, and future loss of support and services from the date of death.
  2. The surviving spouse may recover for loss of the loved one’s companionship and protection and for mental pain and suffering from the date of injury.
  3. Minor children (considered under the age of 25) of the loved one, and all children of the loved one if there is no surviving spouse, may recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury.
  4. Each parent of a deceased minor child may recover for mental pain and suffering from the date of injury, and  each parent of an adult child may recover for mental pain and suffering if there are no other survivors.
  5. Medical or funeral expenses due to the loved one’s injury or death may be recovered by a survivor who has paid them.

Estate:

  1. Medical or funeral expenses due to the loved one’s injury or death (excluding amounts paid by a survivor).
  2. Loss of earnings of the loved one from the date of injury to the date of death.
  3. Loss of the prospective net accumulations of an estate (ie, the loved one’s future earnings), which might reasonably have been expected but for the wrongful death may also be recovered if (1) the loved one’s survivors include a surviving spouse or lineal descendants (ie, children);  or (2) the loved one is not a minor child (ie, 25 and older), there are no lost support and services recoverable by a survivor, and there is a surviving parent.

On a side note, according to Florida Statute section 95.11(4)(d), the statute of limitations (time to bring a lawsuit) for a Florida wrongful death claim arising out of an automobile (whether a driver, passenger, or pedestrian), trucking, scooter, moped, bike, construction, cruise, slip and fall, trip and fall or on the job accident, is two years from the date of incident.

As you can see, these types of cases can be very complex and may require the need for a Florida Keys personal injury and wrongful death lawyer.