Articles Posted in Car Accidents

For a long time, plaintiffs in bad faith insurance cases reserved the claim until after liability had been determined. Then, they would proceed with filing the bad faith claim.

It’s still true that bad faith claims can’t be decided before liability has been established. However, some lawyers in cases where insurers have dragged their feet on paying legitimate claims have begun including a count for bad faith in the original liability claim.

Recently, Florida’s Fourth District Court of Appeal established procedure for how to handle this, and it involves abatement of the bad faith claim (or setting it aside) rather than dismissing it. That means the matter can’t be determined prior to the liability claim, but plaintiffs don’t have to refile. That saves time and legal expense, and could make for a swifter receipt of compensation. If an insurer is found to have engaged in bad faith, it can be ordered to pay far in excess of the original policy limit.
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Rare is the instance where any auto insurance company is going to offer an injured party a fair settlement straight out of the gate. Obtaining rightful compensation for injuries – including medical bills, lost wages and vehicle damage – almost always requires the intervention of an experienced accident attorney.

Those involved in “no contact” accidents are going to face an even steeper uphill battle for coverage. These would be instances where the driver takes evasive action to avoid a collision with another vehicle, but ends up crashing into some other object. He or she may still suffer injury or property damage, though it’s likely not as severe as if there had been impact with the other vehicle. However, because there was no contact, proving negligence on the part of the other driver can be difficult.

This was the case for a plaintiff in Inman v. Whiteville, where the North Carolina Court of Appeals, was asked to weigh liability in a “no contact” crash, where plaintiff asserted she was run off the road by another driver.
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When an auto insurance company fails to provide fair, timely coverage to policy holders or others entitled to it, this is called “acting in bad faith.” It means the insurer did not act reasonably in the discharge of the fiduciary duty it owed, and when proven, can result in compensation that exceeds even the original limits of the policy.

The hope is that by making the repercussions so severe for insurers who act in bad faith, there will be compelling reasons to treat insureds fairly. Of course, these are insurance companies we’re talking about, and the mantra at these institutions is almost always: Deny, Deny, Deny.

In the recent case of GEICO v. Paton, a woman had to fight her insurance company twice: First in a bid for adequate underinsured motorist coverage and then in a bad faith insurance action. She won in both cases, but the insurer still sought to avoid payment, by appealing on the grounds that the trial court in the bad faith action improperly weighed the excess verdict amount reached at the uninsured motorist trial.
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The U.S. Court of Appeals has upheld ruling from a trial court granting summary judgment in favor of an auto manufacturer facing allegations of liability for failure to install a fuel shut-off switch on its cars.

In passenger vehicles, a fuel shut-off switch acts to cut power to the engine as soon as impact is detected. The purpose is to prevent the vehicle from catching fire as a result of a fuel tank rupture. In Hughs v. Kia Motors Corp., plaintiffs alleged lack of this device kept the vehicle in motion far longer than what it would have otherwise been the case, resulting in injuries that were ultimately fatal to the driver.

Sarasota car accident lawyers note specific claims included strict liability for inherently dangerous design and negligence for the lack of airbag deployment, lack of fuel shut-off device, failure to warn of the inherently dangerous design and failure to remedy it.
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Recently, Florida’s Fourth District Court of Appeal was tasked with considering whether an insurance agent’s misstatement characterizing a customer’s coverage could ultimately result in doubling payout for her injured son.

Answer? It’s possible.

In Gallon v. GEICO, the primary issue in dispute was plaintiff’s claim of negligent misrepresentation. Plaintiff asserted his mother relied on purportedly incorrect information given to her by the insurance agent when purchasing her policy. Relying on this information, she agreed to pay a higher premium. Had she been told the truth, he contended, she never would have paid a higher amount. Or perhaps she would have shopped around for a different plan. The bottom line, he says, is that his mother reasonably relied on this information, and when he was injured, it proved false.

Our Fort Myers car accident lawyers note the 4th DCA didn’t determine he was necessarily entitled to damages, but rather that trial court’s summary judgment was improper. There was enough substantial evidence to take the claim before a jury, which will be the next phase in the process.
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Florida’s Fifth District Court of Appeal has ruled that attorney-client privileges between an at-fault driver and an insurance defense lawyer are still protected, even in third-party bad faith insurance claims.

Car accident injury lawyers in Fort Myers note while this appears on the surface to depart from the 2005 Florida Supreme Court decision in Allstate Indemnity Co. v. Ruiz, the primary difference in Boozer v. Stalley is the distinction between attorney-client privilege and the “work product” produced in a personal injury case that later leads to a bad faith claim.

The 5th DCA had previously ruled that in bad faith lawsuits against insurance companies that fail to settle within the policy limits, all materials in the company’s claim file up to the date of judgment in the underlying lawsuit are obtainable and should be produced when sought in discovery. Additional documents or memos in the file after the judgment date can be obtained when the plaintiff shows good cause.
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This year, Florida became one of the last states in the nation to implement a ban on texting while driving. The new measure was welcome, but it’s still rather weak.

For one thing, the action is considered only a secondary offense, meaning an officer must have some other reason to stop an offender. Secondly, a first-time offense garners a maximum $30 fine ($60 for a second offense within five years). Finally, as the Tampa Bay Times reported recently, law enforcement across the state is on track to issue less than 1,800 citations in the year since the law passed.

There is, however, some heartening news on two fronts: The courts and technology. Our Lehigh Acres car accident attorneys note in late August, a Florida jury awarded $4.3 million to a passenger injured in a texting-and-driving case. Two weeks later, it was revealed the combined efforts of a chemical engineer, an auto insurance company and a major phone service provider might help disable the texting feature for drivers.
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Although expert witnesses are not required in Naples car accident lawsuits as they are in medical malpractice cases, use of an expert witness can sometimes make or break a case.

However, in order to be considered an “expert,” a person must meet certain criteria for the purported field of study. Last year, Florida adopted a more stringent standard for expert witnesses. Previously, the state adhered to the Frye standard, which was established by the 1923 case of Frye v. U.S. This principle held that scientific theory, principle or procedure from which the expert witness testimony was derived had to be sufficiently grounded or generally accepted in the particular field of study.

The problem was that while general acceptance of peers in the scientific community was important, the principle lacked consideration for the individual’s qualifications as an expert. This resulted in the introduction and passage of House Bill 7015, which required Florida to join 40 other states in adopting the Daubert standard for admissibility of expert witness testimony. This more stringent standard weighs whether the theory or technique in question can be tested, whether it has been subjected to peer review, whether there is a known or potential error rate, the existence of standards to control its operation, and whether there is widespread acceptance within the relevant scientific community.
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A second Florida appellate court has certified a question to the state supreme court regarding whether a defendant must have actual knowledge of a crash in order to be criminally charged with leaving the scene of an accident involving death.

Florida’s First District Court of Appeal, in Cahours v. Florida, reversed defendant’s criminal conviction for hit-and-run on grounds that standard jury instructions on this matter are unclear. The court also urged the state legislature to consider stepping in to clarify this matter for the judicial system.

Our Cape Coral personal injury lawyers recognize that while this is a criminal case, not a civil one, it could ultimately impact future civil cases for the simple fact that criminal convictions can help bolster the position of the plaintiff in a civil case arising from the same basic facts.
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Another state supreme court has struck down the so-called “family step-down provision” so prevalent in auto insurance contracts across the country. Unfortunately, that state supreme court that took this step wasn’t ours, but South Carolina’s.

Still, the recent ruling in Williams v. GEICO sets an important precedent that our Lehigh Acres car accident attorneys hope our lawmakers and court justices will soon recognize. After all, the decision in the Williams case was modeled after a similar ruling by the Kentucky Supreme Court.

Most people who have family step-down provisions in their policy may not even be aware of it, as it is not usually detailed in the “declarations” page of the policy, but rather buried in the “exclusions” portion. Many never hear of it until they or a loved one is seriously hurt in a crash and tries to collect the full liability limit for the policy they purchased, only to be told the exclusion is applicable and they are entitled only to the minimum statutory coverage.
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