Miami Personal Injury Attorney Blog

Rear Ended Vehicle Usually Wins Liability / Fault Issue

May 15, 2012 | Wolfson & Leon

Every case has two parts: liability and damages. And, to win your case before a jury, you have to prove both by the greater weight of the evidence. In fact, if you cannot show liability, the jury does not even consider damages. Your Miami Car Accident Lawyer explains:

The practical impact of this is that, if a case is being negotiated before a lawsuit has been filed, an adjuster will look to both parts in order to evaluate it. Likewise, if a case has been filed at the courthouse, the lawyer for the defendant will evaluate both liability and damages in order to report to his client what he, she, or it is facing.

Now, in a car accident case, rear end collisions are usually the fault of the rear-vehicle. In fact, once a case gets to trial, there is what is called a “rebuttable presumption” that the person who did the rear-ending in the car accident is at fault, or wrong. This means that the person who rear-ended you is presumed to be in the wrong. He or she can “rebut” or refute that presumption by showing one of four things. To avoid getting a directed verdict at trial on whose fault the accident was, the defendant would have to show (1) that there was something mechanically wrong with his or her car; (2) that the lead driver made a sudden stop; (3) the lead driver made a sudden lane change; or (4) that the lead driver made an illegal or improper stop. Dept. Highway Safety v. Saleme, 963 So. 2d 969 (Fla. 3rd DCA 2007). With regard to the sudden stop exception, a sudden stop, alone, is insufficient. Clampit v. Spencer, 786 So. 2d 570 (Fla. 2001). Rather, for this exception to kick in, “the lead driver’s stop must occur “at a time and place where it could not reasonably be expected by the following driver”. Pierce v. Progressive, 582 So. 2d 712 (Fla. 5th DCA 1991).

Choice of Law — First Party Uninsured Motorist — State of Contract Formation

May 11, 2012 | Wolfson & Leon

Uninsured Motorist cases are founded in contract law. Uninsured Motorist cases are lawsuits against a person’s own insurance company to recover those damages caused by someone who did not have insurance or who did not have enough insurance. Usually, it is as a result of a car accident. But Uninsured Motorist cases can arise out of being injured as a passenger, pedestrian, or even being a bicycle rider!

When an insurer does not settle an Uninsured Motorist case and a Plaintiff sues and gets more than the coverage limits, the Plaintiff can recover the excess judgment if his or her lawyer can show certain factors and perfects the claim. First, such an effort to recover the excess judgment is called a “bad faith” claim. Next, if the bad faith claim is against one’s own insurance company, it is called a “first party” bad faith claim. Such a “first party” bad faith claim has to be perfected by filing a civil remedy notice under Florida Statute 624.155. You can see that law by clicking on this link: http://www.flsenate.gov/Laws/Statutes/2011/624.155. Anyhow, if a Plaintiff gets an excess judgment and can show bad faith and that they complied with Florida Statute 624.155, he or she might be able to get even more money than the policy of insurance they paid for.

On March 30, 2012, the 5th District Court of Appeals ruled in a bad faith first party case. The case was Higgins v. West Bend Mutual Insurance Company. The Higgins were from Minnesota and their insurance policy, a contract, was entered into in Minnesota. They got into an accident while vacationing in Orlando. The Higgins recovered $100,000.00 from the person who caused the accident, or the “third party”. Then, they presented their case to their own insurance company for underinsured motorist coverage. They had $100,000.00 in uninsured motorist coverage. Their own insurance company refused to pay that. So they went to trial. And they won a $260,000.00 verdict. The court ordered West Bend Insurance Company pay their $100,000.00 limits, which they did.

Recoveries Against your Own Insurance Companies

April 11, 2012 | Wolfson & Leon

Our firm represents people against their own insurance companies to get benefits that the insurance company has refused or failed to pay. It doesn’t matter if it is health insurance, car insurance, homeowners insurance, disability insurance, or any other type of insurance. If your company doesn’t pay something that they should have, we will fight for you to get the compensation you deserve. And you don’t have to pay us or forward costs.

We take these cases on a “contingency” arrangement. We can do this because there is a Florida Law that says that if you beat an insurance company in court, they have to pay your attorney’s fees and costs under Florida Statute 627.428(1). These cases against your own insurance company are called “first party” cases.

On March 22, 2012, the First District Court of Appeal filed an opinion in a case involving FIGA. FIGA is the Florida Insurance Guaranty Association. They take over insurance companies that have failed or are on the verge of failing. FIGA is funded through industry assessments that are capped at 2% of a company’s net premiums and an additional 2% to cover insolvencies created by hurricanes, etc. If your company goes belly up, FIGA will stand in its shoes and pay your claims to a limit. The limit is generally $300,000.00. An additional $200,000.00 can be available under certain circumstances. And in condominiums, the limit is $100,000.00 per unit. For detailed explanation of what happens if your insurance company goes under, click on the following link: http://www.figafacts.com/faq.