Car Accident

Exclusions in Florida Auto Insurance Policies

Published on: November 12, 2019 | by Friedman Rodman Frank & Estrada, P.A.

Anyone who has ever tried to read a Florida car insurance policy knows that they are lengthy, complex, and do not clearly outline what coverage is provided. Most Florida motorists end up purchasing insurance after answering a series of questions online about their vehicles, driving habits, and desired coverage amounts. However, few drivers truly know what their insurance policy covers.

After a Florida car accident, most injured motorists rely on insurance coverage to reimburse them for the expenses associated with the accident, including medical bills and lost wages. Florida car accident victims may have also endured significant pain and suffering as a result of the crash. Unfortunately, too often, the at-fault driver does not have enough insurance coverage to fully compensate an accident victim. In this situation, the accident victim may need to file a claim with their own insurance company under the underinsured/uninsured motorist (UIM) clause.

A UIM clause provides motorists with additional insurance coverage in the event that the at-fault driver does not have insurance or does not have enough insurance coverage to fully compensate them for their injuries. This is especially important in Florida, where it is estimated that approximately 23 percent of drivers are uninsured. Due to the importance of UIM insurance, Florida lawmakers determined that an insurance company most provide UIM coverage in the same amount as bodily injury coverage unless the insured specifically waives UIM coverage. The burden rests with the insurance company to ensure that they obtain a valid waiver of coverage; otherwise, the insurance company may still be on the hook for providing UIM coverage.

Speculation Versus Proof in Florida Personal Injury Cases

Published on: October 30, 2019 | by Friedman Rodman Frank & Estrada, P.A.

In order to prove a Florida personal injury claim, a plaintiff has the burden to prove all of the elements of a negligence claim. Negligence cannot be presumed. This means that there must be at least some evidence to prove each element of negligence. In proving causation, Florida courts have held that the plaintiff must show that the accident was “more likely than not” caused by the defendant’s negligence. Evidence of negligence cannot be based on pure speculation. This is true of proving damages as well, which generally are not presumed either.

A recent state appellate decision illustrates this principle. In that case, the appeals court considered whether there was evidence of negligence when a driver claimed he did not see a pedestrian before he hit him on a highway. The defendant left home early in the morning to go to work about an hour away. He was on his way there, driving along the highway, at or under the speed limit. He was shifting to another lane, looking in his rearview mirror, when “his vehicle vibrated and jerked, and his windshield shattered,” and he realized he had hit something.

Glass flew into the defendant’s face, so he continued until he could pull over along the side of the road. He then walked back to the crash and saw a man in the road, who was later identified as the plaintiff’s husband. The husband died as a result of his injuries. The crash happened at about 5:30 in the morning, it was dark out, and the street was dimly lit. The defendant was driving with his headlights on.

Proving Negligent Entrustment in Florida DUI Cases

Published on: October 28, 2019 | by Friedman Rodman Frank & Estrada, P.A.

In the tragic event of a Florida DUI accident, people other than the driver may be held responsible for the crash in some circumstances. If another person or establishment allowed the operator to drive drunk, they may be found liable for the driver’s actions in a Florida personal injury claim.

A Florida negligent entrustment claim is based on negligently entrusting another person with a dangerous object, such as entrusting a person with a vehicle when the person is drunk. Under Florida law, to prove a negligent entrustment claim, a plaintiff must show that a person supplied directly or through a third person a chattel for the use of another person that the supplier knew or had reason to know would use it a way that involved an unreasonable risk of physical harm to himself and others. Florida courts have held that cars are dangerous instrumentalities and, not surprisingly, also that drunk driving is dangerous. However, Florida courts also generally hold that to prove a negligent entrustment claim in a drunk driving case, an owner will not generally be held liable if a person has a legal duty to return property to its owner. Some Florida courts have found that liability does not depend on ownership, but rather whether the harm was or should have been foreseeable.

Court Affirms $45 Million Award in DUI Negligent Entrustment Claim

Sovereign Immunity in Florida Car Accident Cases

Published on: October 24, 2019 | by Friedman Rodman Frank & Estrada, P.A.

Sovereign immunity protects federal, state, and local governments from lawsuits, and can bar many Florida car accident cases from court. However, federal, state, and local governments can still be sued in many circumstances. This includes tort claims against the state of Florida or local governments for any act for which a private person would be held liable under the circumstances. The government cannot be held liable under Florida law unless there is a common law or statutory duty of care that existed that would hold individuals liable under similar circumstances. If a duty is owed to the plaintiff, a court must then determine whether sovereign immunity bars the claim.

In Florida, governmental immunity comes from the doctrine of separation of powers. The Florida Supreme Court has held that the separation of powers provision in the Florida Constitution requires that certain policy-making, planning, or judgmental governmental functions or “discretionary” functions normally do not benefit from sovereign immunity. Meanwhile, sovereign immunity generally is afforded to decisions made for “operational” functions. The court has said that planning level functions are normally those that require basic policy and planning decisions, while operational level functions are those that are required to implement policy or planning. In addition, courts have said that certain discretionary governmental functions are immune from tort liability because certain functions should not be subjected to scrutiny. Whether an act involved a decision of discretion and public policy rather than one of operation and implementation is not always clear. A recent decision from one state’s supreme court dealt with the issue of immunity in a car accident case involving a county garbage truck.

According to the court’s opinion, a man drove his employer’s vehicle into the back of a county garbage truck that was stopped on the side of the highway picking up garbage. There was dense fog and the man said that he could not see the road, and did not see the truck in time to stop. The man filed a complaint against the county for negligence.

Florida Court Determines City May Be Liable for Accident Victim’s Injuries Based on Dangerous Intersection

Published on: August 6, 2019 | by Friedman Rodman Frank & Estrada, P.A.

In July, 2019, a state appellate court issued a written opinion in a Florida car accident case discussing whether the defendant, the City of Coral Gables, was immune from liability based on governmental immunity. Ultimately, the court concluded that the plaintiff’s evidence gave rise to a material fact that needed to be resolved by a jury. Thus, the court reversed the lower court’s decision granting summary judgment to the City.

According to the court’s recitation of the facts, the plaintiff was driving north on Ponce de Leon Boulevard, approaching the intersection with Navarre Avenue. As the plaintiff, who was riding a motorcycle, approached the intersection, he noticed another driver slowly approaching the intersection in the opposite direction.

The other driver initiated a left turn without yielding the right of way, leaving the plaintiff with no time to react. The plaintiff crashed his motorcycle into the right front fender of the other vehicle. The plaintiff was seriously injured as a result of the crash. The other driver stated that he could not see the plaintiff as he approached the intersection due to several palm trees that were in the center median.

The Importance of Deciding Which Defendants to Name in a Florida Product Liability Lawsuit

Published on: July 26, 2019 | by Friedman Rodman Frank & Estrada, P.A.

Florida product liability law is primarily based on strict liability. Strict product liability refers to a claim in which the plaintiff alleges that the product at issue was defective or unreasonably dangerous. The focus of these claims is on the product itself, and these claims do not require a plaintiff to show that the defendant was negligent in any way.

While strict product liability may seem like a straightforward doctrine to apply, determining which parties are subject to strict liability can actually be quite complicated. A recent state appellate decision illustrates the concept of successor liability as it pertains to the plaintiff’s strict liability claim against a rental car company.

According to the court’s opinion, the plaintiff was seriously injured when the rental car she was riding in was involved in a head-on collision. The vehicle was previously rented through National Car Rental Systems (NCRS); however, NCRS sold the vehicle to a private party years before the plaintiff’s accident. The plaintiff filed her claim against Enterprise rental car company because Enterprise eventually acquired NCRS’s rental car business after the NCRS assets were transferred several times through various companies in a complex series of transactions.

Unsecured Cargo Poses a Serious Danger to Florida Motorists

Published on: July 24, 2019 | by Friedman Rodman Frank & Estrada, P.A.

Under Florida law, all motorists carrying any load must make sure that the load is secure. This law makes driving on Florida roads safer by ensuring that a motorist’s cargo does not shift during transport, fall onto the road, and cause a serious Florida car accident. However, not all drivers follow the rule, and some who try to tie down their cargo do not do a very good job. The result is hazardous. A recent case illustrates the risks unsecured cargo can pose, as well as the legal issues that may arise in a lawsuit against a motorist who fails to ensure they are transporting cargo safely.

According to the court’s opinion, the plaintiff was driving when, suddenly, she looked up and saw a mattress flying towards her vehicle. The plaintiff did what she could to avoid the mattress, but ended up crashing into a nearby barrier. Witnesses to the accident tracked down the truck that was carrying the mattress, and provided the truck’s information to law enforcement. The truck was towing a trailer with seven-foot sides.

Police officers stopped the truck and talked to the driver. The driver told police that he was not aware of any mattress in the trailer, but that there may have been a mattress back there. The motorist told police that he wasn’t sure about whether there was a mattress in the trailer because co-workers were responsible for loading and unloading the trailer.

The Importance of Expert Witnesses in Florida Personal Injury Cases

Published on: July 22, 2019 | by Friedman Rodman Frank & Estrada, P.A.

In a Florida personal injury case, the jury consists of six average citizens. Because of this, in some cases, the issues raised in the case may be beyond the common understanding of the jurors. In these cases, courts allow parties to call on expert witnesses to testify as to their opinions.

While not every case requires an expert witness, many personal injury cases can be made stronger with the presentation of an expert witness. In some cases, such as Florida medical malpractice cases, expert witnesses are almost always required due to statutory requirements. Regardless of the type of claim, expert witnesses can be extremely important, as is the decision on which expert to select in any given case. A recent state appellate opinion discusses why it is crucial for personal injury victims to thoroughly vet and interview all potential expert witnesses.

According to the court’s opinion, the plaintiff was sitting in her vehicle at a stop sign when the defendant crashed into the back of her. The plaintiff immediately began to experience pain in her head and neck, and was went to the hospital later that day. The plaintiff tried various treatments for her pain, but none were effective. Eventually, the plaintiff saw a doctor who told her that she had reached maximum improvement and that her symptoms were likely to continue for the rest of her life.

How the Doctrine of Negligence Per Se Helps Florida Accident Victims Prove Their Claims

Published on: July 18, 2019 | by Friedman Rodman Frank & Estrada, P.A.

In most Florida personal injury cases, the plaintiff must establish that the defendant violated a duty of care that was owed to the plaintiff, and that the defendant’s breach of this duty resulted in the plaintiff’s injuries. However, in some situations, Florida accident victims can utilize the doctrine of negligence per se to prove the first two elements of a negligence claim: duty and breach.

Negligence per se is a legal doctrine that results in a legal finding that the defendant acted negligently. For negligence per se to apply, a plaintiff must present evidence that the defendant violated a regulation, law, or statute that was passed to protect people in the plaintiff’s position. If a plaintiff is able to establish that negligence per se applies, the plaintiff must only prove that the defendant’s actions were the cause of their injuries. A recent state appellate decision illustrates a situation in which the court determined negligence per se applied.

The court explained the facts as follows: the plaintiff was driving when she looked up to see a mattress flying towards her car. The plaintiff tried to avoid the mattress, but in so doing crashed into a cement barrier. Witnesses to the accident were able to obtain the other vehicle’s license plate number, and police officers eventually caught up with that driver, who was towing a trailer.

Comparative Negligence in Florida Personal Injury Cases

Published on: June 13, 2019 | by Friedman Rodman Frank & Estrada, P.A.

One of the most important legal doctrines that all accident victims should understand is the concept of comparative fault. While some Florida personal injury accidents are solely the fault of one party, many accidents involve a situation where the parties share responsibility for that accident. The doctrine of comparative fault determines which parties involved in an accident can recover for their injuries.

Under Florida Statutes section 768.81, any “contributory fault chargeable to the claimant diminishes proportionately the amount awarded as economic and noneconomic damages for an injury attributable to the claimant’s contributory fault, but does not bar recovery.” This means that an accident victim’s negligence will be considered by the jury, and will be used to reduce the victim’s overall recovery amount, but will not completely prevent them from recovering for their injuries from any at-fault parties.

While some states prohibit an accident victim who is more than 50% at fault from pursuing a claim, Florida law employs the “pure” comparative negligence model, meaning a plaintiff can bring a claim even if they are found to be more than 50% at fault. For example, assume a Florida car accident victim is found to be 30% liable for causing the collision, and the only other driver involved is determined to be 70% at fault. If the plaintiff’s damages were $500,000, then the plaintiff would be entitled to recover $500,000 less 30%, or $350,000.