Car, Truck & Motorcycle Accidents - Jeffrey P. Gale, P.A.

Jeffrey P. Gale, P.A. // The Science of Looming Motion and Looming Threshold in Rear-End Motor Vehicle Collisions

Jeffrey P. Gale, P.A. — Fri, 19 Dec 2025 18:56:18 GMT

Rear-end collisions account for more than 25 percent of all roadway motor vehicle accidents. The reflexive response is to blame the driver of the approaching vehicle – the one who strikes the vehicle ahead. Florida law reinforces this instinct by creating a rebuttable presumption of fault against the trailing driver. Gulle v. Boggs, 174 So. 2d 26, 27–29 (Fla. 1965) (When “a defendant runs into the rear of a plaintiff’s automobile while the plaintiff is stopped for a traffic light or at an intersection, there is a presumption of negligence of the defendant … . The presumption provides a prima facie case which shifts to the defendant the burden to go forward with the evidence to contradict or rebut the fact presumed. When the defendant produces evidence which fairly and reasonably tends to show that the real fact is not as presumed, then the impact of ‘the presumption is dissipated.’ Whether the ultimate fact has been established must then be decided by the jury from all the evidence before it without the aid of the presumption.”)

That presumption, however, is not absolute. Law enforcement, courts, and personal injury practitioners should resist the temptation to stop their analysis there. Attentive, reasonable drivers can – and sometimes do – collide with the rear of a leading or stationary vehicle in broad daylight through no fault of their own.

Our firm, together with Attorney Sean Domnick, represented a client in litigation against a motor coach company and its driver arising from precisely such a scenario. Our client was operating his employer’s passenger bus when he struck the rear of a motor coach stopped in a through lane of travel. There was no traffic condition requiring the stop. The motor coach was not disabled; it had not run out of fuel, suffered a mechanical failure, or experienced any emergency. Nevertheless, it remained stationary in a live traffic lane.

Our client approached from behind in the same lane with an unobstructed view beginning approximately 2,500 feet away. There were no vehicles in front of or beside him in any lane. He observed the motor coach at a distance, but did not perceive that it was stopped until he was too close to avoid a collision. The result was catastrophic injuries. (Our client was extricated from his vehicle using the Jaws of Life and airlifted to the hospital.)

We retained multiple experts to address discrete aspects of the case. An engineer testified regarding speeds, distances, and stopping calculations. A trucking expert addressed industry standards and safety practices. Medical experts explained the severity and permanence of our client’s injuries, and an economist quantified past and future economic losses. None of those experts, however, was qualified to explain why a reasonably attentive driver can collide with a stationary vehicle without being negligent.

That explanation lies within the domain of human factors science.

We retained a leading human factors expert to address this critical question. Rather than attempting a technical exposition here, I will briefly describe – at a lay level – the most significant principles at issue: “looming motion and looming threshold.”

In roadway safety, looming motion concerns the human ability to perceive whether an object ahead is moving or stationary. Counterintuitively, a stopped vehicle in the roadway can be among the most difficult hazards to detect, even in broad daylight. At long distances, a stationary vehicle can produce visual information indistinguishable from that of a moving vehicle traveling at the same speed as the observer. In such circumstances, the absence of angular expansion delays recognition that the object ahead represents a hazard. Absent strong visual cues – such as warning triangles, visible occupants outside the vehicle, or signs of roadside activity – the human visual system may not immediately register that a vehicle ahead is not moving.

Closely related is the role of expectation. Human perception is influenced by what a driver reasonably anticipates encountering. Expectation can delay the recognition of danger. In our case, the collision occurred on our client’s regular route, one he had driven daily for more than ten years. The location – near the entrance to a major theme park – was specifically designed to allow commercial passenger vehicles to approach without interruption or delay. In all those years, our client had never encountered a vehicle stopped in this portion of the roadway without an apparent reason.

His reasonable expectation was that traffic would continue flowing smoothly toward the entrance gate located 800 to 1,000 feet ahead. Accordingly, although he saw the motor coach, he did not perceive that it was stationary. The combination of diminished perceptual cues and reasonable expectation created the perfect storm. While the motor coach driver had multiple safe alternatives and made an affirmative choice to stop in a through lane, our client – due to a scientifically explainable failure of perception – was deprived of any meaningful opportunity for cognitive choice.

The concept of “looming distance” is well established in human factors research. Mathematical models can determine the distance at which a stationary hazard should become perceptible to a reasonably attentive driver. Predictably, litigation focuses on the variables—such as vehicle speed—to be used in those calculations. In this case, however, both sides’ engineers agree on the speed at impact.

The “looming threshold” is the point at which the rate of angular expansion becomes sufficient for the human visual system to register that an object ahead is stationary or closing rapidly. This threshold is not subjective guesswork; it is a measurable and well-studied phenomenon grounded in vision science.

The looming threshold occurs later—often dramatically later—when:

The stopped vehicle presents a large, uniform profile (e.g., a bus or motor coach);
There are no visual cues indicating distress or abnormality;
The roadway geometry and traffic flow create an expectation of uninterrupted movement; and
Lighting and contrast conditions do not emphasize depth or closure.

Until the looming threshold is crossed, a driver may see the vehicle without perceiving it as a hazard.

Our human factors expert opined – using established science – that by the time a reasonably attentive driver would have perceived the motor coach as stopped, there was insufficient time or distance to avoid the collision. Importantly, all evidence supported that our client was, in fact, attentive.

It also bears emphasis that perception and reaction are not synonymous. Even after a hazard is perceived, additional time is required for cognitive processing and physical response.

This discussion is not intended to suggest that trailing drivers are never at fault. Clearly, many rear-end collisions result from inattention or negligence. The takeaway is more modest, but critical: lawyers must be willing to look beyond presumptions and examine the science. When they do, the results can be both professionally rewarding and profoundly meaningful to the client.

The case was tried before an Orlando jury, which awarded nearly $2,000,000 in damages and apportioned fault almost equally between our client and the corporate owner of the stopped motor coach.

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Contact us at 305-758-4900 or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.

Jeffrey P. Gale, P.A. // Motor Vehicle Rental Agencies Evade Vicarious Liability Under the Dangerous Instrumentality Doctrine

Jeffrey P. Gale, P.A. — Wed, 03 Dec 2025 18:46:58 GMT

Companies make billions of dollars leasing and renting motor vehicles. One might expect that with such profits would come a corresponding responsibility to compensate innocent people injured through the negligent operation of those vehicles. They don’t.

The Florida Legislature once believed they should. It may still believe so, but its will has been overridden by federal law.

Section 324.021(9), Florida Statutes, requires rental and leasing companies to maintain substantial minimum liability insurance on vehicles operated in this state. But that requirement has been superseded by 49 U.S.C. § 30106 – the Graves Amendment – enacted in 2005.

Notably, the Graves Amendment appears to preserve state “financial responsibility” laws. Section 30106(b) provides:

“(b) Financial Responsibility Laws.—Nothing in this section supersedes the law of any State … (2) imposing liability on business entities engaged in the trade or business of renting or leasing motor vehicles for failure to meet the financial responsibility or liability insurance requirements under State law.”

Despite this language, the Florida Supreme Court held that § 324.021(9) is not a financial responsibility law. Rosado v. DaimlerChrysler Financial Services Trust, 112 So. 3d 1165 (Fla. 2013). As a result, rental and leasing companies have no obligation to maintain liability insurance on their vehicles.

Two lessons emerge.

First, We the People should not assume that state and federal governments always act in our best interests. Sometimes profits win out over people. The Graves Amendment is a prime example: it was designed to shield rental and leasing companies’ profits, leaving injured individuals without the insurance protections the Florida Legislature intended.

Second, at least in Florida, individuals do have a way to protect themselves against uninsured or underinsured drivers: uninsured/underinsured motorist (UM/UIM) coverage. The contours of UM/UIM coverage are set out in § 627.727, Florida Statutes. In short, vehicle owners can purchase this coverage to protect themselves and their families from irresponsible vehicle owners and operators.

Here is a real life example of how the Graves Amendment harms innocent people: We were contacted by a young woman who lost her leg in a horrific crash near Hard Rock Stadium. Her car had broken down. A friend came to help and parked behind her disabled vehicle. As she stood between the two cars, another vehicle slammed into the friend’s car, crushing her between the bumpers.

The at-fault vehicle was under a long-term lease – the type of lease addressed in § 324.021. But because the lessee failed to maintain the insurance required by that statute, and because the Graves Amendment prevents the lessor from being held responsible, only $10,000 in liability coverage was available for her catastrophic injuries. We could not help her.

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Contact us at 305-758-4900 or by email to learn your legal rights.

Florida UM/UIM (Uninsured/Underinsured Motorist) Coverage Issues

Jeffrey P. Gale, P.A. — Tue, 02 Dec 2025 20:29:25 GMT

Uninsured/Underinsured Motorist (UM/UIM) coverage – governed by section 627.727, Florida Statutes – is first-party insurance designed to compensate insureds for both economic damages (such as medical expenses and lost wages) and non-economic damages (such as pain and suffering) resulting from motor vehicle accidents caused by uninsured or underinsured drivers. Although every automobile insurer authorized to do business in Florida must offer UM coverage, it is not mandatory. Unlike PIP and property-damage liability coverage, UM may be rejected by the insured.

A foundational source for understanding Florida UM law is the Florida Supreme Court’s landmark decision in Mullis v. State Farm Mutual Automobile Insurance Co., 252 So. 2d 229 (Fla. 1971). While the majority opinion provides a thorough discussion of UM principles, the specific issue before the Court was whether a resident relative injured while operating a vehicle owned by another resident relative – where that vehicle was not insured under the UM policy – was nonetheless entitled to UM benefits. The policy expressly excluded such coverage. The trial court and First District Court of Appeal upheld the exclusion, relying on United States Fidelity & Guaranty Co. v. Webb, 191 So. 2d 869 (Fla. 1st DCA 1966).

The Florida Supreme Court disagreed, holding that the exclusion was contrary to the UM statute and therefore unenforceable. The Court explained:

“Whenever bodily injury is inflicted upon the named insured or insured members of his family by the negligence of an uninsured motorist – under whatever conditions, locations, or circumstances they may be in at the time – they are covered by uninsured motorist liability insurance issued pursuant to section 627.0851. They may be pedestrians, passengers in someone else’s vehicle, in public conveyances, or occupying vehicles (including motorcycles) owned by but not insured under the UM policy of the named insured.”

The Court emphasized that this broad coverage applies to the named insured and resident relatives, but does not extend equally to all others who may be permissive users or occupants of the insured vehicle. As the Court noted:

“These latter are protected only if they receive bodily injury due to the negligence of an uninsured motorist while they occupy the insured automobile of the named insured with his permission or consent.”

Legislative Caveat After Mullis

Following Mullis, the Legislature amended the UM statute. Section 627.727, Florida Statutes, now permits insurers to offer limitations on UM coverage—but only if specific statutory notice and acceptance requirements are met. See Carbonell v. Automobile Ins. Co., 562 So. 2d 437 (Fla. 3d DCA 1990).

One key limitation in subsection (8)(d) provides:

The uninsured motorist coverage provided by the policy does not apply to the named insured or family members residing in her or his household who are injured while occupying any vehicle owned by such insureds for which uninsured motorist coverage was not purchased.

These limitations are enforceable only if (1) disclosed on a form approved by the Department of Insurance, and (2) knowingly accepted by the insured. Rejecting the limitation generally results in a higher premium.

Additional Important UM Issues in Florida

Settlement with liability insurers
Under section 627.727(6)(a), if an injured person (or personal representative) intends to settle with a tortfeasor and that settlement will not fully satisfy the claim, written notice of the proposed settlement must be sent by certified or registered mail to all UM carriers. Each UM carrier has 30 days to either approve the settlement or elect to preserve subrogation rights.
Examinations Under Oath (EUOs)
Most UM policies include contractual EUO provisions. Failure to appear or cooperate may result in a denial of UM benefits.
Bad-faith actions
Before filing a UM bad-faith lawsuit, the insured must obey the civil remedy requirements of section 624.155, Florida Statutes.

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Contact us toll free at 866-785-GALE or by email (jgale@jeffgalelaw.com & kgale@jeffgalelaw.com) for a free, confidential consultation to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

Jeffrey P. Gale, P.A. /// Disabled Commercial Vehicles Are Serious Roadway Hazards

Jeffrey P. Gale, P.A. — Tue, 18 Nov 2025 23:09:18 GMT

Disabled commercial vehicles pose significant hazards to motorists.

Although approaching drivers often bear much of the blame for rear-end collisions, commercial vehicles that become disabled in active lanes of traffic frequently contribute to serious and fatal accidents—often through little or no fault of the approaching motorist. These crashes occur not only at night or in foggy conditions, or on curved roadways, but surprisingly often in broad daylight on straight, unobstructed highways.

To reduce these dangers, the U.S. Department of Transportation’s Federal Motor Carrier Safety Administration has established detailed regulations governing disabled commercial vehicles. For commercial motor vehicles—buses and trucks with a gross vehicle weight rating (GVWR) over 10,000 pounds (U.S. DOT Rule 571.125 S3) – that stop on the traveled portion of a highway for any reason other than normal traffic, 49 CFR 392.22 requires the following:

Activation of Hazard Warning Flashers.
The driver must immediately activate the vehicle’s hazard-warning flashers and keep them activated until the required warning devices are placed. According to Rule 393.5, hazard warning signals are lamps that flash simultaneously on all sides of the commercial vehicle to alert approaching drivers. Rule 393.19 further requires that these flashers operate independently of the ignition switch.

Placement of Warning Devices.
As soon as possible, and in all cases within 10 minutes, the driver must place the prescribed warning devices in the locations specified by Rule 392.22(b)(1)(i–iii), (b)(2), (b)(2)(iv), and (b)(2)(v). The required devices—three bidirectional emergency reflective triangles, at least six fusees, or three liquid-burning flares—are identified in Rule 393.95. As noted in Section 571.125 S2, the purpose of these standardized devices is “to reduce deaths and injuries due to rear-end collisions between moving traffic and disabled vehicles.”

These requirements apply with only minor variation between daytime and nighttime conditions.

The regulations underscore the critical importance of preparedness. Rule 392.8 states that no commercial motor vehicle may be operated unless the driver is satisfied that the required emergency equipment is present and ready for immediate use.

The purpose of this discussion is to highlight a counter-intuitive but important concept: disabled vehicles can create dangerous conditions that contribute to major accidents even when approaching drivers are exercising appropriate care. Because many of these incidents result in severe injuries or fatalities, fault should not be automatically attributed to the following motorist. A thorough investigation of the specific circumstances of each collision is essential.

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Contact us toll free at 866-785-GALE or by email (jgale@jeffgalelaw.com & kgale@jeffgalelaw.com) for a free, confidential consultation to learn your legal rights.

Jeffrey P. Gale, P.A. // Important Florida Motor Vehicle Insurance Policy Coverage Tidbit

Jeffrey P. Gale, P.A. — Mon, 08 Sep 2025 19:54:21 GMT

Unless otherwise prohibited by law, the terms of a Florida motor vehicle insurance policy govern the rights and obligations of the parties—the insurance carrier and the insureds.

Florida’s Dangerous Instrumentality Doctrine is a long-standing legal principle that makes the owner of a motor vehicle vicariously liable for injuries caused by someone else driving that vehicle with the owner’s knowledge and consent. In other words, if you own a vehicle and give another person permission—express or implied—to drive it, you are liable for any negligence that driver commits while operating the vehicle. The doctrine comes from common law, not statute. Florida first adopted it in Southern Cotton Oil Co. v. Anderson (1920), reasoning that automobiles are inherently dangerous when operated and therefore owners must be held responsible for their use.

Premium charges for Florida motor vehicle insurance policies are primarily risk-based—meaning insurers calculate how likely a claim will be filed against the policyholder and how costly that claim might be. The higher the risk, the higher the premium. One factor that affects the level of risk to the insurer under a motor vehicle policy is the number of individuals who are likely to be driving the insured vehicle, such as individuals living in the same household.

During the insurance application process, applicants are required to disclose all household members, particularly those of driving age. Providing false or incomplete information in response to this question may give the carrier grounds to deny coverage in the event of an accident.

One way policyholders can help manage their premium levels is by designating certain household members as excluded drivers under the policy. See Florida Statute 627.747. When a driver is specifically listed as an “excluded driver” on an automobile insurance policy, that exclusion is very strong. Here’s how it works:

No coverage for the excluded driver: If the excluded person is operating the vehicle and causes a crash, the insurer will deny liability coverage for that driver. That means the policy does not step in to defend or indemnify the excluded driver.
Coverage for the named insured/owner: If the vehicle owner (who is the policyholder) is sued under a theory of vicarious liability (for example, because Florida law generally makes owners liable for the negligence of permissive drivers under the dangerous instrumentality doctrine), the outcome depends on how the exclusion is written:
- Many Florida policies expressly exclude not just the driver, but also any liability imputed to the owner arising from that driver’s negligence. In those cases, the insurer will deny coverage both for the excluded driver and the owner.
- However, if the exclusion is worded narrowly (excluding only the driver’s liability, not the owner’s vicarious liability), the owner may still be covered for lawsuits brought against them, even though the driver is excluded.

Our firm recently encountered such an issue. Our client was injured in a crash caused by another driver’s negligence. It was later revealed that the driver had been designated as an excluded operator under the vehicle owner’s insurance policy. Accordingly, we requested a copy of the owner’s policy for review.

Unfortunately, the Progressive insurance policy stated in clear and unambiguous terms that the exclusion “includes any claim or suit for damages made against you, a relative, a rated resident, or any other person or organization that is vicariously liable for an accident arising out of the operation of a motor vehicle by the excluded driver.”

To make matters worse, neither the driver nor the vehicle’s owner has sufficient personal assets to cover our client’s losses. We confirmed this after conducting an asset search.

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Contact us toll free at 866-785-GALE or by email (jgale@jeffgalelaw.com) for a free, confidential consultation to learn your legal rights.

Jeffrey P. Gale, P.A. // Understanding Florida’s Rear-End Collision Presumption

Jeffrey P. Gale, P.A. — Wed, 11 Jun 2025 14:56:33 GMT

In 1958, Florida joined a small number of states in adopting a legal presumption of negligence against trailing drivers involved in rear-end motor vehicle collisions. This shift was established in McNulty v. Cusack, 104 So.2d 785 (Fla. 2d DCA 1958), and later endorsed by the Florida Supreme Court in Bellere v. Madsen, 114 So.2d 619 (Fla. 1959).

The Legal Rationale

The presumption is rooted in practical evidentiary concerns. Typically, plaintiffs bear the burden of proving all four elements of negligence: duty, breach, causation, and damages. But in rear-end crashes, plaintiffs often know they were hit from behind but have no access to the circumstances leading up to the impact—leaving gaps in proof for breach and causation.

To address this, Florida courts created a rebuttable presumption: if a rear-end collision occurs, the trailing driver is presumed negligent. This shifts the burden of production to the defendant, who must offer a “substantial and reasonable explanation” to overcome the presumption. If successful, the case proceeds to the jury without the benefit of the presumption. See Gulle v. Boggs, 174 So.2d 26, 28–29 (Fla. 1965); Brethauer v. Brassell, 347 So.2d 656 (Fla. 4th DCA 1977).

Originally developed during Florida’s contributory negligence era—where any negligence on the plaintiff’s part barred recovery—the rule had significant weight. Under today’s comparative fault framework, however, negligence is apportioned, and partial fault does not automatically defeat a claim. See Shayne v. Saunders, 176 So. 495 (Fla. 1937); Stephens v. Dichtenmueller, 207 So.2d 718 (Fla. 4th DCA 1968), quashed on other grounds.

Modern Interpretation: Birge v. Charron

In Birge v. Charron, 107 So.3d 350 (Fla. 2012), the Florida Supreme Court clarified that the rear-end presumption is “an evidentiary tool” designed to bridge gaps in liability and causation when evidence is one-sided. Importantly, it is not absolute.

Where there is evidence that the front driver may have been negligent, the presumption is rebutted. At that point, the case must go to a jury for resolution—without the presumption. It may remain only as a permissible inference the jury is free to accept or reject. This standard was reaffirmed in Crime v. Looney, 328 So.3d 1157 (Fla. 1st DCA 2021).

Real-World Application: A Case Study

We recently handled a case involving a catastrophic, multi-vehicle crash on Florida’s Turnpike. Our client was sideswiped by an SUV that had been rear-ended, causing their vehicle to be propelled into a tree at high speed. The chain-reaction began with a rear-end collision—clearly placing the trailing vehicle at the center of the causation analysis.

We argued that the presumption of negligence should apply to the vehicle that initiated the sequence. However, the court noted that the rear-ended SUV had come to a sudden stop on a section of highway where such stops are not expected, unlike urban roads with frequent stops for businesses or intersections.

Because there was a factual dispute over whether the front vehicle’s conduct contributed to the crash, the court ruled that the presumption did not apply. The case ultimately settled for a confidential amount.

Key Takeaways

Presumption of Negligence: In Florida, a rear-end collision creates a presumption that the trailing driver was negligent.
Rebuttable Standard: The presumption can be rebutted by presenting a reasonable explanation (e.g., sudden, unexpected stop by the lead vehicle).
Comparative Fault: Even if the lead driver was partially at fault, liability can be shared rather than barred entirely.
Not Always Applicable: The presumption is less likely to apply on highways or areas where sudden stops are unusual.

This rule continues to play a vital role in rear-end crash litigation, especially where direct evidence is hard to come by. But as our case illustrates, it is not a one-size-fits-all solution.

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Contact us at 305-758-4900 or by email to learn your legal rights.

Jeffrey P. Gale, P.A. /// Reimbursement Rights of Health and Disability Insurers in Florida Personal Injury Cases

Jeffrey P. Gale, P.A. — Tue, 10 Jun 2025 16:09:01 GMT

It is common for health and disability (lost wages) insurance carriers to pay benefits to their insureds who are injured due to someone else’s negligence. Many of these policies include reimbursement provisions allowing the insurer to recover payments from any personal injury settlement or judgment obtained by the insured.

How Much Must Be Repaid?

The reimbursement amount depends on two key factors:

Policy Language
The Source of the Settlement or Judgment

Most policies state that the insurer is entitled to full reimbursement from the insured’s recovery—often before the insured or their attorney receives anything. However, when the recovery is from a tortfeasor (the at-fault party), Florida law may limit the insurer’s rights.

Florida Statute § 768.76(4): The Governing Rule

When recovery is made from a tortfeasor, Florida Statute § 768.76(4) controls, regardless of what the insurance policy says. This was confirmed in Ingenix v. Ham, 35 So. 3d 949 (Fla. 2d DCA 2010). In that case, United Healthcare sought full reimbursement after paying most of the decedent’s medical bills. However, the court limited reimbursement based on the statutory formula in § 768.76(4), stating:

“A provider of collateral sources…shall have a right of reimbursement…if such claimant has recovered…from a tortfeasor.”

A Different Outcome: When the Statute Doesn’t Apply

In contrast, Travelers v. Boyles, 679 So. 2d 1188 (Fla. 4th DCA 1996), involved a settlement with an uninsured motorist (UM) carrier—not a tortfeasor. The court held that § 768.76(4) did not apply and allowed the health insurer to pursue full reimbursement under its policy terms. The statute wasn’t triggered because a UM carrier is not considered a tortfeasor under the law.

Importantly, the Ingenix court emphasized that the Travelers decision does not mean policy language trumps the statute when § 768.76(4) does apply.

When Both Standards Apply

In certain cases—such as auto accidents involving inadequate bodily injury (BI) coverage and a payment from an underinsured motorist (UIM) policy—both Ingenix and Travelers may apply. Reimbursement rights may then be split between the statutory formula (for the tortfeasor’s share) and policy language (for the UIM portion).

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Contact us at 305-758-4900 or by email (kgale@jeffgalelaw.com and jgale@jeffgalelaw.com) to learn your legal rights.

Jeffrey P. Gale, P.A. // Understanding Workers’ Compensation Liens and Uninsured Motorist Claims Under Florida Law

Jeffrey P. Gale, P.A. — Sun, 08 Jun 2025 19:36:52 GMT

It is not uncommon for employees to be injured in motor vehicle accidents while acting within the course and scope of their employment. Such incidents frequently implicate multiple layers of insurance coverage.

Regardless of fault, injured employees may be eligible for benefits including workers’ compensation, Personal Injury Protection (PIP), and health insurance (including Medicare). Workers’ compensation and PIP are considered primary over Medicare, meaning they must pay first. If Medicare does make a payment, it typically expects to be reimbursed from any subsequent workers’ compensation or personal injury recovery.

When an injured employee is not at fault, they may seek damages through a third-party civil action against the negligent driver and, if different, the vehicle’s owner. Recovery in these cases typically comes from the tortfeasor’s and owner’s bodily injury (BI) liability insurance or, if applicable, personal assets.

In many cases, however, the at-fault party either lacks BI coverage altogether or carries insufficient limits. Florida law addresses this risk through uninsured/underinsured motorist (UM/UIM) coverage, governed by § 627.727, Florida Statutes. This optional coverage is designed to fill the gap left by the inadequacy—or absence—of BI insurance.

Per § 627.727(1), the purpose of UM/UIM coverage is:

“…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.”

The Workers’ Compensation Lien Under § 440.39

Section 440.39, Florida Statutes, grants workers’ compensation (WC) carriers an equitable lien on any judgment or settlement obtained by the injured worker from a third-party tortfeasor. This lien allows the carrier to recover benefits previously paid out, including indemnity and medical expenses.

However, critically, the WC lien does not attach to UM/UIM proceeds. Florida courts have addressed this distinction:

Volk v. Gallopo, 585 So. 2d 1163 (Fla. 4th DCA 1991): Held that a WC carrier cannot benefit from a UM recovery due to the plain language of § 440.39(3)(a), which excludes UM recoveries from lien applicability.
§ 627.727(1), Fla. Stat.: Explicitly states that UM coverage “shall not inure directly or indirectly to the benefit of any workers’ compensation … carrier.”

When BI and UIM Coverage Coexist: Procedural Mechanics

In claims involving both BI and UIM, procedural requirements under § 627.727(6)(a)-(b) govern how settlements must be handled:

(a) Notification Requirement

If the injured party agrees to settle with the liability insurer but the settlement won’t fully satisfy their claim (thereby triggering a UIM claim), they must notify all UIM carriers by certified or registered mail. The UIM carrier then has 30 days to either:

Authorize the settlement, or
Preserve subrogation rights under paragraph (b).

(b) Preservation of Subrogation Rights

If the UIM carrier elects to preserve subrogation, it must:

Pay the BI settlement amount to the injured party within 30 days.
Thereafter, the UIM carrier may pursue subrogation against the at-fault party and their liability carrier.

This mechanism ensures the UIM carrier can protect its reimbursement rights by preventing the injured party from releasing the tortfeasor from further liability.

When UM is BI

In Metrix South v. Rose, 758 So. 2d 1259 (Fla. 4th DCA 2000), the UIM carrier refused to authorize settlement of a $100,000 BI offer and instead paid that amount directly to the claimant to preserve subrogation rights. The workers’ compensation carrier claimed a lien on the payment.

The trial court ruled that the payment constituted UM benefits, thereby exempt from the lien under § 440.39. However, the Fourth DCA reversed, holding that the payment was the equivalent of a third-party recovery, making it subject to the WC lien:

“… the trial court erred in characterizing the $100,000 payment to appellees as UM benefits and not a judgment or settlement recovered by the employee.”

This decision illustrates the complexity that arises when UM and UIM coverage functions as a stand-in for third-party BI liability, particularly in lien determinations.

Conclusion

Understanding the relationship between workers’ compensation lien rights and UM/UIM insurance is essential in motor vehicle accident cases involving injured workers. While Florida law generally prohibits WC carriers from recovering UM/UIM proceeds, exceptions exist—especially where UIM payments substitute for BI coverage through statutory subrogation mechanisms.

Practitioners must closely evaluate the structure and source of all settlements to determine lien exposure under § 440.39, and comply with § 627.727’s procedural requirements when both BI and UIM are in play.

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Contact us at 305-758-4900 or by email (kgale@jeffgalelaw.com and jgale@jeffgalelaw.com) to learn your legal rights.

Jeffrey P. Gale, P.A. /// Uber Drivers and Passengers, Beware!

Jeffrey P. Gale, P.A. — Wed, 30 Apr 2025 17:22:19 GMT

Much has been written about the type of insurance coverage available to Uber passengers and other third parties for accidents caused by Uber drivers. Less has been written about the coverage available to Uber drivers and their passengers for injuries caused by third parties such as other drivers.

Currently, we are handling a case for an Uber driver who was hurt through the negligence of another driver. Our client’s passenger was also hurt.

Florida motor vehicle insurance policies offer a variety of coverages. For individuals, only Property Damage Liability and PIP are mandatory. The other available coverages are Uninsured Motorist/Underinsured Motorist (UM/UIM), Comprehensive, Collision, and Medical Payments. A premium is charged for each type of coverage.

Uber maintains insurance coverage in Florida with Progressive. We received a copy of the policy applicable to our accident. The available coverages are:

Liability to Others – Bodily Injury and Property Damage Liability – $1,000,000 combined single limit
Comprehensive – $2,500
Collision – $2,500
Medical Payments – $5,000 each person

Uber rejected UM/UIM. PIP was not an option.

Uninsured Motorist insurance is coverage for when the at-fault party does not maintain Bodily Injury Liability insurance coverage. Underinsured Motorist applies when the Bodily Injury Liability coverage limits are insufficient to fully compensate for all damages.

Florida Statute 627.748(7) outlines the insurance requirements for transportation companies like Uber and Lyft — referred to in the statute as “Transportation Network Companies” and “TNC” — and their drivers. The statute provides that “Uninsured and underinsured vehicle coverage as required by s. 627.727” must be maintained while a participating TNC driver is logged on to the digital network but is not engaged in a prearranged ride or while a TNC driver is engaged in a prearranged ride. Subsection (7)(d) further provides:

If the TNC driver’s insurance under paragraph (b) or paragraph (c) has lapsed or does not provide the required coverage, the insurance maintained by the TNC must provide the coverage required under this subsection, beginning with the first dollar of a claim, and have the duty to defend such claim.

The statutory language gives the appearance that UM/UIM would always be available, when applicable, through the TNC or its driver. Appearances can be deceiving! In Progressive Express Insurance Company v. Raiser-DC, LLC, 724 F.Supp. 1273 (USDC, S.D. Florida 2024), summary judgment was entered in favor of Progressive’s position that UM and UIM coverage did not exist under the TNC’s insurance policy. This left its driver [Karina Monasterio], who was seriously injured by the negligence of another driver, who was underinsured at the time of the accident, without UIM insurance. Here are key parts of the ruling:

In pertinent part, the Florida UM/UIM statute requires that:

(1) 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 … However, the coverage required under this section is not applicable when, or to the extent mat, an insured named in the policy makes a written rejection of the coverage on behalf of all insureds under the policy.”

Fla Stat. 627.727(1) (emphasis added). Florida courts have already interpreted that Subsection (1) of the Florida UM/UIM Statute “limits the applicability of the uninsured motorist requirements to liability policies covering specifically insured or identified motor vehicles.” Hooper v. Zurich Ins. Co., 789 So. 2d 368, 369 (Fla. Dist. Ct. App. 2001).

The Parties state, and Ms. Monasterio readily concedes, that the Period Policy “is not issued for specifically insured or identified vehicles.” The Period Policy does not identify any specific vehicle nor is Ms. Monasterio’s vehicle specifically identified. As Subsection (1) is therefore not applicable to the Period Policy, Ms. Monasterio cannot point to any text in the Florida UM/UIM Statute that would require coverage for her vehicle during the May 6, 2022, incident. Her argument that Subsection (1) of the Florida UM/UIM Statute is the only subsection to limit its applicability to specifically insured or identified motor vehicles, does undermine the limitation nor in and of itself create language that mandates UM/UIM insurance for all other types of insurance policies.

However, Ms. Monasterio urges this Court to recognize the result that follows. Subsection (1) of the Florida UM/UIM Statute only requires UM/UIM coverage for “specifically insured or identified vehicles.” The Period Policy was written to cover “any auto while being used by a TNC driver, but only while engaged in providing a prearranged service utilizing the ride-share application …” It is likely that most TNC policies will be written similarly and it would be virtually impossible for any TNC to possibly identify each vehicle in the written policy. Therefore, it is further likely that no TNC driver or vehicle would ever be specifically insured or identified by the TNC’s insurance policy, and as a result, never meet the condition precedent for Subsection (1) of the Florida UM/UIM Statute. By referencing, the Florida UM/UIM Statute, the TNC Act makes the requirement for UM/UIM coverage meaningless for TNC insurance policies.

The court acknowledged “that this interpretation might be counter to the Florida Legislature’s intent when they drafted the TNC Act.” However, it relied on basic statutory interpretaton to reach the final result:

Notwithstanding the legislative intent however, my inquiry must focus on the language of the statute in its final form, and the statute references the Florida UM/UIM Statute in its entirety. The TNC Act only mandates UM/UIM insurance as required by the Florida UM/UIM Statute and Subsection (1) of the UM/UIM only requires that policies that specifically insure vehicles provide such coverage. I believe this is the result that the final text of the TNC Act requires. Belanger v. Salvation Army, 556 F.3d 1153, 1155 (11th Cir. 2009) (“When the statute is clear and unambiguous, courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent.”).

In our case, because Uber’s driver, our client, did not cause the crash, the Bodily Injury Liability coverage in Uber’s Progressive policy does not come into play for our client or his passenger. The only injury-related coverage in Uber’s policy for our crash is the Medical Payments coverage. This coverage does not compensate for non-economic damages such as pain and suffering. Thankfully, the at-fault driver maintained enough bodily injury liability insurance to compensate for our client’s non-economic damages. Had our client’s injuries been more serious, that would not be the case. We do not know the full extent of the passenger’s injuries or what other insurance coverage he may have to know whether he will be fully compensated.

Bottom line: to protect against uninsured and underinsured situations, TNC drivers must maintain their own UM and UIM insurance. The TNC will not provide the coverage for them. The same goes for passengers. If the driver has UM/UIM and the passenger does not have other insurance considered primary for the same measure of damages, the driver’s UM/UIM should provide coverage.

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Jeffrey P. Gale, P.A. /// Practice Pointer: Keep Your Eye On the Ball

Jeffrey P. Gale, P.A. — Tue, 18 Mar 2025 21:37:28 GMT

Everyone is familiar with the idiom, “Keep your eye on the ball.” What it means, quite simply, is to keep one’s attention focused on the matter at hand. Lawyers must remember this during intense situations.

Last week we experienced just such an intense situation. In a case involving severe personal injuries sustained by our client, we attended a hearing on the Defendant’s motion for summary judgment. The corporate defendant was asking the court to enter a judgment that it was not vicariously liable for the negligence of its agent. In other words, Defendant was asking the court to throw out the case against it. Serious stuff.

Defendant’s motion was brought under Florida Rule of Civil Procedure 1.510, which reads in pertinent part as follows:

(a) Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary judgment, identifying each claim or defense-or the part of each claim or defense-on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law (bold added for emphasis).

The burden is on the moving party (in our case, the Defendant) to demonstrate the absence of genuine material facts, that no material issues remain for trial, and that the movant is entitled to judgment as a matter of law. See, Florida Rule of Civil Procedure 1.510(a). “An issue is genuine if ‘a reasonable trier of fact could return judgment for the non-moving party,’ and ‘[a] fact is material if it might affect the outcome of the suit under the governing law.’” Birren v. Royal Caribbean Cruises, LTD, 2022 WL 657626, at *2 (S.D. Fla. March 4, 2022), quoting, Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11^th Cir. 2008) and Anderson v. Liberty Lobby, Inc., 477 U.S. 22, 247-48 (1986).

In considering a motion for summary judgment, the trial court views the facts in the light most favorable to the non-moving party, draws all reasonable inferences in favor of the non-moving party, and may not weigh evidence or make credibility determinations, which are jury functions, not those of a judge. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Birren v. Royal Caribbean Cruises, LTD, 2022 WL 657626, at *2 (S.D. Fla. March 4, 2022), quoting, Lewis v. City of Union City, Ga., 934 F.3d 1169, 1179 (11^th Cir. 2019) and Feliciano v. City of Miami Beach, 707 F. 3d 1244, 1252 (11^th Cir. 2013). Accord, Holl v. Talcott, supra; Piedra v. City of North Bay Village, supra; Villanueva v. Reynolds, Smith and Hills, Inc., 159 So. 3d 200 (Fla. 5^th DCA 2015); Rocamonde v. Marshalls of MA, Inc., 56 So. 3d 863 (Fla. 3d DCA 2011), and Moore v. Morris, 475 So.2d 666 (Fla. 1985). Further, if more than one inference can be construed from the facts by a reasonable fact finder, and only one of those inferences introduces a genuine issue of material fact, then the trial court should not grant summary judgment. Birren, supra; citing, Bannum, Inc. v. City of Ft. Lauderdale, 901 F.2d 989, 996 (11^th Cir.1990).

The bottom line is that summary judgment should be denied if there are genuine issues of material fact. In our case, there were many.

It is easy during hearings to get thrown off track by arguments made by the other side. Think of the proverbial red cape being waived in front of the angered bull. In our hearing, the defense attorney spent a good ten minutes spouting facts he claimed supported his position and the granting of Defendant’s motion for summary judgment. Since we strongly disagreed with his interpretation of the facts and the application of those facts to the law, it would have been easy for us to mistakenly get caught up trying to clean up his mess rather than keep our eye on the ball.

By keeping our eye on the ball, we stayed above the fray. When defending a motion for summary judgment, this is the proper approach. The figurative ball on summary judgment is whether there are genuine issues of material fact. Period. Rather than challenge Defendant head-on, we simply showed the court a whole set of material facts a jury could accept to decide in our favor. It was apparent that the judge had read the Defendant’s Motion for Summary Judgment and Plaintiff’s written response, both of which contained the facts the parties mentioned in the hearing, because his ruling came without hesitation after the lawyers had stopped speaking. He understood from the pleadings that there were genuine issues of material fact.

We knew coming into the hearing that the record contained many genuine issues of material fact. We were hopeful that the judge would see this and follow the law. He did. By keeping our focus on the simple MSJ standard, instead of crawling into the mud to challenge the Defendant’s facts and arguments, we made it simple for the court and avoided ‘snatching defeat from the jaws of victory’ — the subject of a future blawg — by getting off-topic.

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Jeffrey P. Gale, P.A. // Comparative Fault Not Part of Manfredo Formula Equation

Jeffrey P. Gale, P.A. — Sun, 21 Jul 2024 23:18:24 GMT

Not infrequently, both a workers’ compensation case and a personal injury liability case will arise from the same accident. For example, a construction site supervisor involved in a motor vehicle crash while traveling to Home Depot for supplies can pursue workers’ compensation benefits from the employer and civil liability damages from the at-fault party.

Florida Statute 440.39(2) provides that “the employer or, in the event the employer is insured against liability hereunder, the insurer shall be subrogated to the rights of the employee or his or her dependents against such third-party tortfeasor.” This means that the employer and its workers’ compensation insurance carrier are entitled to recover a portion of their expenditures from money the injured employee receives from the at-fault third party.

Typically, it is not a dollar-for-dollar recovery. The formula for the recovery is contained in section 440.39(3)(a).

The formula’s interpretation has been challenged. Manfredo v. Employer’s Casualty Insurance Company, 560 So.2d 1162 (Fla 1990) put much of the uncertainty to rest. Manfredo explained that the percentage of the employer/carrier’s recovery is determined as follows:

Step 1. Establish the “full value” of the liability case.

Step 2. Reduce the actual recovery by attorney’s fees and costs to reach a net recovery.

Step 3. Divide the net recovery by the full value.

Step 4. The result in Step 3 is the percentage of the subrogation lien the employer/carrier is allowed to recover.

Let’s say the employer/carrier’s subrogation lien totals $100,000, and the net recovery divided by the full value is 20%, the employer/carrier’s recovery is $20,000.

Determining full value is an evidentiary matter. Experts, usually seasoned personal injury lawyers, give their opinions based on the facts of the particular case and their experience. The judge decides what evidence to accept.

Florida is a comparative fault state. See Florida Statute 768.81. This means that a tortfeasor only pays for damages in proportion to his or her percentage of fault. For example, if damages are $1,000,000, but the tortfeasor is only 60% at fault for causing the accident which has resulted in the damages, the at-fault party’s share is limited to $600,000.

Interestingly, comparative fault cannot be argued to reduce full value. See City of Hollywood v. Lombardi, 770 So. 2d 1196 (Fla. 2000) and Luscomb v Liberty Mut. Ins. Co., 967 So. 2d 379 (Fla. 3rd DCA 2007).

Another common factor preventing full recoveries is limited insurance coverage. Very few individuals maintain large bodily injury and uninsured/underinsured motorist insurance policy limits — I consider $1 million and above to be large. Damages usually exceed coverage limits.

While the cases cited in the section above discussing comparative fault do not explicitly say that limited coverage can be argued to reduce the full value assessment, it is my opinion that it cannot. There is nothing in the statute or the cases interpreting the statute saying it can. The language of the statute suggests that it cannot. Section 440.39(3)(a) contains the following language:

“[T]he employer or carrier shall recover from the judgment or settlement, after costs and attorney’s fees incurred by the employee or dependent in that suit have been deducted, 100 percent of what it has paid and future benefits to be paid, except, if the employee or dependent can demonstrate to the court that he or she did not recover the full value of damages sustained, the employer or carrier shall recover from the judgment or settlement, after costs and attorney’s fees incurred by the employee or dependent in that suit have been deducted, a percentage of what it has paid and future benefits to be paid equal to the percentage that the employee’s net recovery is of the full value of the employee’s damages.”

Moreover, the Lombardi case involved a compromised policy limits settlement of $100,000 in which the trial court calculated full value at $250,000. The insurance company did not argue that full value should be limited to the $100,000 settlement.

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Jeffrey P. Gale, P.A. // Florida Fails Again at Mandating Bodily Injury Insurance Coverage

Jeffrey P. Gale, P.A. — Mon, 29 Apr 2024 20:51:26 GMT

For the eighth year in a row, the Florida Legislature has considered but failed to make bodily injury (BI) insurance coverage mandatory for every owner or operator of a motor vehicle required to be registered in this state. The two bills proposed for this reason during the recently concluded legislative session failed to receive a committee hearing.

Florida and New Hampshire are the only two states in the Union that do not require all drivers to carry BI coverage.

What Florida does require is personal injury protection or PIP and property damage (PD) liability coverage in the amount of $10,000 because of damage or destruction to the property of others in a crash.

Three years ago, Florida’s Legislature passed a bipartisan bill that would have required BI coverage. Pressured by the insurance industry, Gov. Ron DeSantis vetoed the bill. This year’s proposed bills addressed some of the concerns expressed by Gov. DeSantis when he vetoed the bill. Nevertheless, the insurance industry kept the bills from gaining traction.

Florida’s auto insurance premiums are among the highest in the country. Last year, HB 837 was sold by the insurance industry as a solution to the premium crisis. It was passed into law. The law compromises the rights of individuals harmed by the negligence of others. Meanwhile, insurance rates continue to skyrocket.

According to an analysis by Forbes, Florida drivers pay twice the national average for full coverage. A 2016 report commissioned by the Florida Office of Insurance Regulation found that moving from PIP to mandatory BI would reduce insurance premiums on average from 5.6 to 9.6 percent, and up to 24 percent in Miami-Dade County.

Mostly because of Florida’s prohibitively high insurance rates, more than 20% of at-fault drivers will not have sufficient BI insurance to cover the losses suffered by the accident victim. See Insurance Information Institute, “Facts + Statistics: Uninsured Motorists.”

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Contact us at 305-758-4900 or by email (jgale@jeffgalelaw.com and kgale@jeffgalelaw.com) to learn your legal rights.

Jeffrey P. Gale, P.A. // Republicans Push Sovereign Immunity for Private Companies

Jeffrey P. Gale, P.A. — Mon, 22 Apr 2024 18:12:22 GMT

This blog is the second on recent efforts by Republican legislators with the consequence of making Florida’s roads and highways more dangerous. (The first blog: Jeffrey P. Gale, P.A. // Republican Legislators Work to Make Florida’s Roadways Less Safe.)

Section 768.28(5)(a), Florida Statutes limits the recovery against the state and its agencies and subdivisions for tort lawsuits to $200,000 per individual claim and $300,000 total for all claims arising out of the same incident or occurrence.

No matter how catastrophic and life-altering the injuries may be or whether death results from the negligence of the sovereign, this is the hard cap. It does not matter what a judge or jury decides regarding the extent of the damages.

Section 768.28(5)(a) is the outgrowth of section 768.28(1), which is a limited waiver by the state of the doctrine commonly referred to as “Sovereign Immunity.” The doctrine is derived from English common law under which the King could not be sued on the theories that he could do no wrong, and that there could be no legal rights against the authority that makes the laws upon which the rights depend. See Miles McCann, Visiting Fellow, National Association of Attorneys General, State Sovereign Immunity, Nov. 11, 2017, https://www.naag.org/attorney-general-journal/state-sovereign-immunity/(last visited Jan. 23, 2024).

In Alden v. Maine, 527 U.S. 706, 728 (1999), the Supreme Court of the United States held that the doctrine was adopted by our country’s Founders in the Constitution itself rather than the Eleventh Amendment, solidifying its place in American jurisprudence. The doctrine is available to the federal government and every state.

Not every state chooses to hide behind sovereign immunity. California and New York, states with large populations and high costs of living and medical care like Florida, have no caps on suits against their state and local governments. Among the states using cap limits, Florida’s numbers are some of the lowest, making them a mere slap on the wrist to wrongdoers and failing to encourage safer practices and procedures.

The Florida Department of Transporation (FDOT) enters into contracts with private companies on many of its projects. The contracts require a degree of vetting to determine competence and allow for oversight by the sovereign. 768.25(5) extends the sovereign caps to these companies while performing under FDOT contracts, providing a measure of insulation not otherwise available to them on private projects. So, for example, the negligence of one of these companies on a private project resulting in catastrophic injuries could lead to a final judgment against the company for millions of dollars, whereas the same facts on a sovereign project would be limited to a $200,000 (per person) final judgment.

For two months every year, Florida’s senators and representatives meet in Tallahassee to create new laws. This year, bills were offered to extend the sovereign caps to companies that were not in privity of contract with the governmental entities. As such, they would not be vetted for competence by the sovereign or be subject to the sovereign’s scrutiny.

This is a recipe for an increase in dangerous conditions. Under no circumstances would the arrangement promote safety.

Thankfully, due to the hard work of the staff and members of the Florida Justice Association (FJA), the worst aspects of the proposed bills were eliminated or watered down.

All of the dangerous bills were proposed by Republicans.

Elections matter.

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Jeffrey P. Gale, P.A. // Recovering Uninsured (UM) Motorist Benefits for Injuries Caused by Road Debris

Jeffrey P. Gale, P.A. — Fri, 22 Dec 2023 20:11:58 GMT

Florida motor vehicle insurance policies offer a variety of coverages. PIP and Property Damage — Liability are mandatory coverages. Others, like bodily injury and uninsured/underinsured motorist (UM/UIM) are not.

An uninsured vehicle is one that does not maintain bodily injury coverage or, like a hit-and-run phantom vehicle, cannot be identified.

Interestingly, UM coverage may be available for injuries caused by road debris from an unknown source. However, the cases hold that the inference the debris came from another vehicle must be inescapable, or at least “outweigh all contrary inferences to such extent as to amount to a preponderance of all of the reasonable inferences that might be drawn from the same circumstances.” Voelker v. Combined Insurance Co. of America, 73 So.2d 403, 405 (Fla. 1954), citing King v. Weis-Patterson Lumber Co., 124 Fla. 272, 168 So. 858 (1936). See also Little v. Publix Supermarkets, Inc., 234 So.2d 132 (Fla. 4th DCA 1970).

In Allstate Insurance Company v. Bandiera, 512 So.2d 1082 (Fla. 4th DCA 1987), the appellate court denied coverage to a passenger injured by a cinder block from an unknown source. It felt that it was just as plausible that the cinder block was thrown at the car by pedestrians standing at the side of the road.

In State Farm Mutual Automobile Insurance Company v. Hanania, 261 So.3d 684 (Fla. 1st DCA 2018), the court reached a different result by conluding that the inference a ladder fell from a motor vehicle was established to the exclusion of all other reasonable inferences. It pointed out that the bridge on which the accident happened was not a pedestrian bridge, that there were no overpasses over the bridge, and that the ladder was located at least a mile along the bridge.

The Hanania court felt that its inference was even stronger than the inference in Denoia v. Hartford Fire Insurance Co., 843 So.2d 285 (Fla. 3d DCA 2003), in which “the Third District held that the plaintiff could seek uninsured motorist benefits for injuries he sustained when his vehicle was struck by a twelve to fifteen-foot steel beam lying in the highway where the only plausible explanation for its being on the roadway was that it had been improperly secured on a truck and had fallen from the truck onto the roadway.” Hanania at 687.

In Denoia, “the car in front of the plaintiff ran over a steel beam which was lying in the roadway. This propelled the beam up into the air, and it struck the plaintiff’s front bumper.” Id. at 286. The court decided that the only plausible explanation for the steel beam being on the roadway was that it had been improperly secured on a truck and had fallen from the truck onto the roadway. It noted that there was no adjacent construction site and no other explanation for the presence of the beam on the roadway.

To recover in these cases, the plaintiff must carry the burden of proof on two inferences. The threshold inference is the one discussed above, namely: that the debris came from a motor vehicle. The second inference is that the debris ended up in the road due to the motor vehicle operator’s failure to act reasonably. See Hanania at 687. This is stacking inferences.

Here’s the rule on stacking inferences:

To prove a prima facie case of negligence…, circumstantial evidence can be used “as effectively and as conclusively” as direct positive evidence, but if a party “depends upon the inferences to be drawn from circumstantial evidence as proof of one fact, it cannot construct a further inference upon the initial inference in order to establish a further fact unless it can be found that the original, basic inference was established to the exclusion of all other reasonable inferences.”

Davie Plaza, LLC v. Iordanoglu, 232 So.3d 441, 445 (Fla. 4th DCA 2017) (quoting Nielsen v. City of Sarasota, 117 So.2d 731, 733 (Fla. 1960)). “The purpose of this rule against stacking inferences is `to protect litigants from verdicts based on conjecture and speculation.'” Broward Exec. Builders, 192 So.3d at 537 (quoting Stanley v. Marceaux, 991 So.2d 938, 940 (Fla. 4th DCA 2008)). “In a negligence action, if a plaintiff relies upon circumstantial evidence to establish a fact, fails to do so to the `exclusion of all other reasonable inferences,’ but then stacks further inferences upon it to establish causation, a directed verdict in favor of the defendant is warranted.” Id. One more thing: Notify the police and the uninsured motorist carrier of the incident immediately, preferably within 24 hours.

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Contact us at 305-758-4900 or by email (jgale@jeffgalelaw.com and kgale@jeffgalelaw.com) to learn your legal rights.

Jeffrey P. Gale, P.A. // Insuring Against Damages in Florida Motor Vehicle Crash Cases

Jeffrey P. Gale, P.A. — Sun, 22 Jan 2023 01:17:25 GMT

Accidents happen. Being properly insured for motor vehicle crashes is good for the insured and for persons harmed through the insured’s negligence.

Florida is one of only three states that does not require owners of motor vehicles registered in the state to maintain bodily injury (BI) insurance. Bodily injury insurance covers losses for economic (e.g., lost wages and medical bills) and non-economic damages, also known as human damages, such as pain and suffering, disfigurement, mental anguish, and the loss of capacity for the enjoyment of life.

While BI coverage is not mandatory, it is available from every insurance carrier that sells motor vehicle insurance in the state. The first thing to keep in mind when securing BI insurance is the coverage limit under the policy. As with anything else, you get what you pay for. The minimum BI coverage limit in Florida is $10,000; the sky is the limit for how much coverage can be purchased. Individuals and companies with large assets subject to judgments are well-advised to maintain high coverage limits.

Whether the coverage limits are large or small, another advantage of maintaining BI insurance is that the insurance carrier will handle the legal aspects of the case brought against the insured, even to the extent of paying a defense attorney. Understand, however, that some policies allow carriers to decide whether or not to pay the coverage limits, and if the coverage is not enough to satisfy the damages claimed, the insured may lose the defense attorney upon the carrier’s tender of the policy limit, leaving the insured to fend for himself.

Other points to keep in mind:

Carriers charge premiums based on risk. Various factors are considered in determining premium rates. Driving records, coverage limits, and who will be driving the vehicle are a few of the main considerations. BI insurance will cover losses caused by permissive users. However, if a permissive user also lives with the insured and this fact is not disclosed in the insurance application or within a reasonable period of time (often defined by the insurance policy) after the person begins to reside with the insured, the carrier can deny coverage for the reason that the risk to the carrier was greater than the carrier knew and for which its premium was determined. Likewise, the failure to disclose the business use of a personal vehicle — Uber, for example — may result in the loss of coverage.
While BI is not mandatory, persons causing personal injuries in a crash may have their driving privileges suspended for not maintaining the coverage. See s. 324.051(2), Florida Statutes.
Uninsured Motorist/Underinsured Motorist (UM/UIM) insurance is available with the purchase of every BI policy. It costs extra. The insurance covers the insured and various others when the at-fault party does not have BI (UM) or the BI limits are not enough to pay for all of the damages (UIM), making it a form of 1st party BI insurance. UM/UIM coverage can be stacked or non-stacked. See generally, Jeffrey P. Gale, P.A. // Uninsured Motorist (UM)/Underinsured Motorist (UIM) Insurance — Don’t Leave Home Without It.
PIP and property damage liability insurance are mandatory. PIP covers a limited amount of medical bills and lost wages for the insured and others covered under the policy. It does not pay for human damages like BI coverage. Property damage liability does not pay for the repair or replacement of the insured’s vehicle.

The list of considerations mentioned in this blog is not comprehensive. Feel free to contact our office to discuss these matters further.

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Jeffrey P. Gale, P.A. // Florida’s Vehicle Crash Rear-End Fault Presumption Not Absolute

Jeffrey P. Gale, P.A. — Thu, 17 Nov 2022 22:08:34 GMT

In 1958, Florida joined a handful of other states in adopting the evidentiary rule that a presumption of negligence arises against the trailing vehicle in motor vehicle crashes. See McNulty v. Cusack, 104 So.2d 785 (Fla. 2d DCA 1958) (Other jurisdictions limited the rear-end aspect of the collision to creating an inference of negligence.). Shortly thereafter, the rule was approved by the Florida Supreme Court in Bellere v. Madsen, 114 So.2d 619 (Fla. 1959). The usefulness of the rule was explained in Jefferies v. Amery Leasing, 698 So.2d 368 (Fla. 5th DCA 1997):

A plaintiff ordinarily bears the burden of proof of all four elements of negligence—duty of care, breach of that duty, causation and damages. See Turlington v. Tampa Elec. Co., 62 Fla. 398, 56 So. 696 (1911); Woodbury v. Tampa Waterworks Co., 57 Fla. 243, 49 So. 556 (1909). Yet, obtaining proof of two of those elements, breach and causation, is difficult when a plaintiff driver who has been rear-ended knows that the defendant driver rear-ended him but usually does not know why. Beginning with McNulty, therefore, the law presumed that the driver of the rear vehicle was negligent unless that driver provided a substantial and reasonable explanation as to why he was not negligent, in which case the presumption would vanish and the case could go to the jury on its merits. Gulle v. Boggs, 174 So.2d 26, 28-29 (Fla.1965); Brethauer v. Brassell, 347 So.2d 656, 657 (Fla. 4th DCA 1977). At the time when this rear-end collision rule was developed, Florida was still a contributory negligence state. Thus, if the presumption were not overcome, the following driver’s claim would be barred. Under contributory negligence, a negligent plaintiff could not recover against a negligent defendant. See Shayne v. Saunders, 129 Fla. 355, 362, 176 So. 495, 498 (1937). Stephens v. Dichtenmueller, 207 So.2d 718 (Fla. 4th DCA), quashed on other grounds, 216 So.2d 448 (Fla.1968).

As the court explained in Birge v. Charron, 107 So.3d 350, 361 (Fla. 2012), “the rear-end presumption has never been recognized as anything more than an evidentiary tool that facilitates a particular type of negligence case by filling an evidentiary void where the evidence is such that there is no relevant jury question on the issue of liability and causation.”

The presumption is not absolute. As explained in Birge, supra:

[B]ecause rear-end collision cases are substantively governed by the principles of comparative fault, we hold that where evidence is produced from which a jury could conclude that the front driver in a rear-end collision was negligent and comparatively at fault in bringing about the collision, the presumption is rebutted and the issues of disputed fact regarding negligence and causation should be submitted to the jury. Further, consistent with our prior decisions, we also hold that where the presumption of rear-driver negligence is rebutted, the legal effect of the presumption is dissipated, and the presumption is reduced to the status of a permissible inference or deduction from which the jury may, but is not required to, find negligence on the part of the rear driver. See Gulle, 174 So.2d at 29 (“When the matter goes to the jury in this posture it must be without the aid of the presumption, which has been reduced to the status of a permissible inference or deduction which the jury may or may not draw from the evidence before it.”).

The Birge principle was applied as recently as November, 2021. See Crime v. Looney, 328 So.3d 1157 (Fla. 1st DCA 2021).

We recently resolved a case involving a multi-vehicle Turnpike crash. There was uncontroverted evidence that a rear-end crash was the trigger that sent vehicles caroming around the highway. Our client’s vehicle, which was hit on the side by one of those vehicles, an SUV, was pushed off the highway and struck a tree head-on at more than 50 mph, suffering catastrophic injuries. We argued to the court that a presumption of fault should be applied to the trailing vehicle, the one that made the initial contact. However, because there was evidence that the rear-ended SUV attempted to stop suddenly on a section of the roadway where such a stop was unexpected, the court refused to grant our motion. The rear-end presumption has been applied in situations where the vehicle struck from behind has stopped suddenly, but it was on roads where sudden stops were to be expected, such as commercial districts where vehicles are pulling into and out of business establishments. The difference in our case is that the sudden stop happened on a straight stretch of the Turnpike under circumstances where a sudden stop was not reasonably expected. We were ultimately successful in proving fault against both the trailing vehicle and the rear-ended vehicle.

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Jeffrey P. Gale, P.A. // Florida Motor Vehicle Insurance Protections Gutted by The Graves Amendment

Jeffrey P. Gale, P.A. — Fri, 22 Jul 2022 16:21:48 GMT

Companies make billions of dollars leasing and renting their motor vehicles. You’d think they’d have some corresponding corporate responsibility to compensate individuals injured through no fault of their own by the negligent operation of their vehicles. They don’t.

The Florida Legislature once believed they did. They may still feel this way, but its will has been overridden by Federal law.

While section 324.021(9), Florida Statutes requires rental and leasing companies to maintain a substantial minimum amount of liability insurance on their vehicles operated in the state, it has been superseded by 49 U.S. Code Sec. 30106, also known as the Graves Amendment, which was enacted into law in 2005.

Interestingly, the Graves Amendment seemingly makes space for the continued application of 324.021, which is part of Chapter 324, Florida Statutes, entitled “Financial Responsibility.” 49 U.S. Code Sec. 30106(b)(2) reads as follows:

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

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

The Florida Supreme Court has concluded otherwise, deciding that 324.021(9) is not a financial responsibility law. Rosado v. DaimlerChrysler Financial Service Trust, 112 So.3d 1165 (Fla. 2013). As a result, rental and leasing companies are not obligated to maintain insurance on their vehicles.

There are two lessons to be learned from this situation. The first is that We The People should not assume that our state and federal governments are always looking out for our best interests. Sometimes, profits are put over people. This blog makes that point. The Graves Amendment was designed to maximize company profits at the expense of individuals. While companies continue to rake in billions, they are insulated by the law from having to spend any of their profits to see that individuals harmed through no fault of their own are fully and fairly compensated for their losses.

The second lesson is that, at least in Florida, individuals do have a means at their disposal to protect themselves against uninsured or inadequately insured motor vehicles. The solution is uninsured/underinsured motor vehicle insurance, the contours of which are outlined in Florida Statute 627.727. In essence, owners of motor vehicles can purchase this type of coverage for themselves and others as a way of protecting against irresponsible owners and operators of motor vehicles.

Here is an actual example of how the Graves Amendment has harmed someone. We were recently contacted by a woman who lost her leg in a motor vehicle crash. Her car had broken down near Hard Rock Stadium, home of the Miami Dolphins. A friend drove over to render assistance and parked behind the disabled vehicle. As the woman was standing between her car and the friend’s car, another vehicle plowed into the back of the friend’s car, pushing it forward and pinning the young woman between the two vehicles. The at-fault vehicle was under a long term lease, the type which is addressed in sec. 324.021. Unfortunately, because the lessee did not maintain the coverage required by the statute and the Graves Amendment did not require the company’s guarantee, there was only $10,000 in liability insurance available to the poor woman. We could not help her.

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Contact us at 305-758-4900 or by email to learn your legal rights.

Jeffrey P. Gale, P.A. // Florida Liability Insurance Carriers Not Obligated by Duty of Good Faith to Settle Claims of All Insureds

Jeffrey P. Gale, P.A. — Tue, 19 Jul 2022 18:39:54 GMT

Florida liability insurance policies often provide coverage to many individuals, including those not named in the policy. For example, the standard Florida motor vehicle policy will insure vehicle owners and unlisted permissive users. This was the scenario in Contreras v. U.S. Sec. Ins. Co., 927 So.2d 16 (Fla. 4th DCA 2006).

Insurance companies are obligated under Florida law to act in good faith and with due regard for every insured’s interests. Boston Old Colony Insurance Company v. Gutierrez, 386 So.2d 783 (Fla. 1980). Under this duty, carriers must give fair consideration of any settlement opportunity and settle the claim when it can and should do so. Powell v. Prudential Property & Casualty Ins. Co., 584 So. 2d 12, 13 (Fla. 3rd DCA 1991).

In Contreras, a permissive user struck and killed a pedestrian while driving at a high rate of speed after consuming alcohol. Both the owner of the vehicle and the permissive user were covered under a U.S. Security motor vehicle liability insurance policy. Coverage under the policy for wrongful death was limited to $10,000.

The lawyer for the decedent’s estate offered to settle the case for $10,000. U.S. Security sent a letter tendering the policy limit along with a general release form discharging both the vehicle owner and driver. The estate’s lawyer offered to accept the release for the vehicle owner, but not the driver.

After U.S. Security rejected the offer, the estate filed suit against both the owner and the driver. A jury trial resulted in a judgment for compensatory damages against the owner and driver for $1,000,000, as well as a punitive damage judgment against the driver in the amount of $110,000. Thereafter, because neither the owner nor the driver had the financial resources to satisfy the judgment, the estate filed a bad faith claim against U.S. Security and proceeded to trial. The purpose of the action was to collect the excess judgment from the carrier.

At the end of Plaintiff’s case, U.S. Security moved for and was granted a directed verdict. The judge stated as follows:

It [the offer to settle with Dessanti [owner] but not Dale [driver]] immediately places the insurance company then in the Hobson’s choice. If they don’t agree to that, they’re sued for bad faith, and if they do agree to it, they’re sued for bad faith. If they agree to it and cut Dale loose, the Plaintiff simply takes an assignment from Dale. If they don’t agree to it and leave Dessanti in, the Plaintiff simply takes an assignment from Dessanti. The Plaintiff’s protected either way and the insurance company loses either way, and I don’t think that’s the state of the law. By creating it that way, what, in essence, the Court is permitting is it’s letting the Plaintiff dictate whether a bad faith claim arises as opposed to looking at the conduct of the insurance company. It creates an automatic bad faith. Either Dessanti should have been protected and wasn’t, in which case she has a bad faith claim, or Dale is cut loose and the insurance company had a duty to defend him, in which case he has a bad faith claim, and the insurance company is sitting squarely in the middle with no way to turn.

The trial court’s reasoning was reversed on appeal and the case was remanded for a new trial.

The appellate court framed the issue on appeal as, “whether an insurer acts in bad faith in refusing to pay a reasonable settlement demand in order to obtain a release of one of its two insureds, where the claimant refuses to settle with the other insured.” It acknowledged that the issue was one of first impression in the state.

The court analyzed the issue in the context of the common law standard that what constitutes bad faith is whether under all the circumstances an insurer failed to settle a claim against an insured when it had a reasonable opportunity to do so. It relied on the principles set forth in Boston Old Colony to reach its conclusion.

The court agreed that U.S. Security had an obligation to act in good faith towards both of the insureds. However, it concluded that this duty was fulfilled when it attempted, without success, to secure, in exchange for the policy limits, a release for both the owner and the driver. Once its obligation to the driver was met, “U.S. Security thereafter was obligated to take the necessary steps before [the estate’s] offer expired to protect Dessanti [the owner] from what was certain to be a judgment far in excess of her policy limits. Under the terms of its policy, had U.S. Security paid out its limits, its duty to settle or defend would have ceased. See Underwriters Guarantee Ins. Co. v. Nationwide Mut. Fire Ins. Co., 578 So.2d 34 (Fla. 4th DCA 1991).”

Since U.S. Security acted in good faith toward the driver, its exposure in the bad faith case arose solely from its failure to protect the vehicle owner from an excess judgment. This exposure could have been avoided by the simple payment early on of the $10,000 policy limit on behalf of the vehicle owner.

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Contact us at 305-758-4900 or by email to learn your legal rights.

Jeffrey P. Gale, P.A. // UM Carrier Not Entitled to Setoff for Benefits Paid by Private Health Insurance

Jeffrey P. Gale, P.A. — Fri, 29 Apr 2022 22:28:37 GMT

The law disfavors windfall recoveries and insurance carriers are always seeking to be the beneficiaries of this public policy. One way carriers seek to benefit from this policy is by reducing jury verdicts by amounts recovered in damages from other sources. This is known as “Setoff.”

Uninsured and underinsured motor vehicle coverage is an optional form of insurance provided in motor vehicle insurance policies “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.” Section 627.727(1), Florida Statutes.

The statutory section contains the following setoff language:

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.

In State Farm Mutual Automobile Insurance Company v. Vega, 753 So.2d 738 (Fla. 3rd DCA 2000), State Farm argued that the setoff language of 627.727(1) authorized the reduction of a jury verdict by the amount paid on Plaintiff’s behalf by his group health insurance company, Guardian. The appellate court rejected this argument, reasoning as follows:

We disagree as we conclude that Guardian’s group health insurance benefits were payable pursuant to its private contract with its insured (Vega) and not payable pursuant to any legislatively enacted “similar law” as contemplated by section 627.727(1) of the uninsured motorist statute.

Interestingly, the Court decided that even if it had held against Vega on this point, it would have denied the setoff due to a valid reimbursement provision in the Guardian insurance policy. Citing Travelers v. Boyles, 679 So.2d 1188 (Fla. 4th DCA 1996). The Court’s position on this point implicates Florida’s collateral source rule contained in section 768.76, Florida Statutes.

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Contact us at 305-758-4900 or by email to learn your legal rights.

Jeffrey P. Gale, P.A. // Florida Uber and Lyft Riders and Drivers Beware!

Jeffrey P. Gale, P.A. — Thu, 07 Oct 2021 21:18:19 GMT

Riders and operators of Uber and Lyft rides will be surprised to learn that they are barely covered by insurance or not covered at all for economic losses and personal injuries resulting from crashes caused by uninsured and underinsured motorists.

Florida Statute 627.748 outlines the insurance requirements for Transportation Network Companies (“TNC”) such as Uber and Lyft. When the TNC driver is logged on to the digital network but is not engaged in a prearranged ride, the insurance coverage requirements are:

$50,000 for death and bodily injury per person,
$100,000 for death and bodily injury per incident,
$25,000 for property damage,
Personal injury protection benefits, and
Uninsured and underinsured vehicle coverage (“UM/UIM”).

When the TNC driver is engaged in a prearranged ride, defined in 627.748(1)(b) as “when a TNC driver accepts a ride requested by a rider through a digital network controlled by a transportation network company, continuing while the TNC driver transports the rider, and ending when the last rider exits from and is no longer occupying the TNC vehicle,” the coverage limits above are bumped up to “at least $1 million for death, bodily injury, and property damage.”

Of the five varieties of coverage required by the statute, only the first four in the list above are mandatory. Uninsured and underinsured vehicle coverage, which is for the protection of persons insured under bodily injury policies who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, can be rejected by the “insured named in the policy” on behalf of all insureds under the policy. Section 627.727(1), Florida Statutes.

While the TNC statute, 627.748, leaves it up to the companies or the drivers to secure the required coverage, the reality is that the companies secure the coverage. This makes the companies “the insured named in the policy” authorized to reject the UM/UIM. Since UM/UIM adds to the cost of the insurance policy, TNC companies typically reject the coverage (Lyft) or select limits lower than the required BI limits (Uber). (627.727(1) allows insureds to reject altogether or select limits lower than the BI limits. Hence, Uber is able to select $10,000 in UM/UIM coverage even though its BI is $50,000/$100,000 or $1,000,000.)

Given these realities, TNC drivers should consider purchasing UM/UIM on their own vehicles. CAVEAT: To avoid a denial of coverage following an accident, the driver must inform his or her insurance carrier during the application process that the coverage should include TNC driving.

If the TNC driver causes the crash, injured riders will be covered by the TNC’s bodily injury insurance, which, unlike UM/UIM, cannot be rejected. Even still, in cases involving catastrophic injuries to multiple individuals, the $1,000,000 in coverage may not be sufficient to fairly compensate everyone injured. In this scenario, the UM/UIM issues discussed in this blog may impact those individuals.

Where the crash is caused by a party other than the TNC driver and the at-fault party failed to maintain BI or maintained inadequate BI policy limits, riders will face the UM/UIM problems discussed here. Namely, the TNC won’t have UM or the limits may not be adequate.

Some riders have a remedy. The remedy is set forth in F.S. 627.727(9)(c):

(c) If the injured person is occupying a motor vehicle which is not owned by her or him or by a family member residing with her or him, the injured person is entitled to the highest limits of uninsured motorist coverage afforded for any one vehicle as to which she or he is a named insured or insured family member. Such coverage shall be excess over the coverage on the vehicle the injured person is occupying.

Since the TNC vehicle is not owned by the rider or a family member, a rider who is a named insured or an insured family member under a policy with UM/UIM may be eligible for the coverage. For example, our daughter uses Uber and Lyft regularly. She does not own a motor vehicle, but is a named insured under our motor vehicle policies. If she is involved in a crash as a TNC rider, she can avail herself of our UM/UIM.

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Contact us at 305-758-4900 or by email to learn your legal rights.