In Estes v. Palm Beach County School District, an opinion issued on March 23, 2026, the First District Court of Appeal fundamentally reshaped the workers’ compensation landscape by redefining the application of the statute of limitations (SOL). The decision benefited Nancy Estes by allowing her to file a benefits claim nearly six months after it would have been barred under the previous interpretation of the law, with an additional eighteen months available had she needed it.

The statute of limitations for workers’ compensation claims is governed by section 440.19 of the Florida Statutes. In 1994, a comprehensive overhaul of Florida’s Workers’ Compensation Law took effect. As part of that reform, the Legislature replaced the statute‑of‑limitations framework in section 440.19(1), Florida Statutes, which had allowed claimants to obtain successive two‑year extensions to pursue benefits. Under that framework, a claim could be filed within 2 years after the date of the last payment of compensation or after the date of the last remedial treatment or rehabilitative services furnished by the employer.

Under this pre-1994 regime, the Florida Supreme Court consistently treated the statutory language as an extension of the statute of limitations as opposed to a suspension of it (citations omitted). Starting in 1994, the Florida Legislature changed the text of the operative statute of limitations provision in § 440.19 from an extension-based regime to a tolling-based one. (In doing so, the Legislature reduced the add-on time from two years to one.) Let’s use the facts in Estes to demonstrate how the two systems differ in application:

The accident occurred on September 30, 2021. The Employer/Carrier (E/C) provided workers’ compensation medical and indemnity benefits to Estes for approximately sixteen months, from October 2021 through January 26, 2023. After that period, the E/C denied further benefits, asserting that the accident was not the major contributing cause of her need for additional treatment or compensation. In June 2024 – approximately seventeen months after receiving her last benefits – Estes filed a petition for benefits (PFB) seeking a one‑time change of orthopedist and other relief. The E/C denied the claims, asserting that the statute of limitations barred them in their entirety. Its analysis relied on principles drawn from the pre‑1994 framework, under which the statute of limitations would have expired on January 26, 2024 – one year after the E/C last provided medical or indemnity benefits. The Judge of Compensation Claims (JCC) accepted the E/C’s position.

Relying on straightforward statutory interpretation – overlooked for decades – the First DCA reversed the JCC by concluding that the 1994 amendment created a suspension‑based statute‑of‑limitations system, replacing the pre‑1994 extension‑based model. Under the 1994 framework, the two‑year statute of limitations was suspended – i.e., tolled – from October 2021 through January 26, 2023, the period during which the E/C was providing workers’ compensation benefits. When benefits ceased, the statute did not simply restart with a one‑year extension, as under the pre‑1994 model. Instead, the claimant received that one‑year extension to January 2024, and only after that extension expired did the remainder of the original two‑year limitations period begin to run. Because only one month had elapsed between the accident and the first provision of benefits, approximately twenty‑three months remained on the primary limitations period. Thus, rather than having only one year from January 2023 to file a claim, Estes had the one‑year extension plus the remaining twenty‑three months – giving her until late December 2025 to bring a claim.

If your claim has been denied on statute of limitations grounds, please contact our office for a free consultation to assess whether the assertion was misplaced.

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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.

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.

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.

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.

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.

Insurance carriers have an arsenal of tools designed to execute this strategy. Examinations Under Oath (EUOs), Independent Medical Examinations (IMEs), Compulsory Medical Examinations (CME), appraisals, allegations of policy misrepresentation, and claims of “failure to cooperate” are just a few of their go-to tactics. Some of these are provided by statute, others are embedded in the fine print of policy contracts.

At its core, an insurance policy is a contract. Although statutory law governs certain rights and obligations in the insurer-insured relationship, many critical aspects are controlled by the terms of the insurance policy itself. Inevitably, disputes arise over how these provisions are applied. When negotiations fail, courts are left to sort through the rubble.

One notable battleground in this ongoing war was addressed in the Florida Supreme Court’s decision in State Farm Mutual Automobile Insurance Co. v. Curran, 135 So. 3d 1071 (Fla. 2014). The legal issue in Curran was succinctly framed as:

‘When an insured breaches a compulsory medical examination provision in an uninsured motorist contract, does the insured forfeit benefits under the contract without regard to prejudice? If prejudice must be considered, who bears the burden of pleading and proving that issue?’

Here’s what happened:

Curran, insured by State Farm, sustained catastrophic injuries in a motor vehicle accident. The at-fault driver’s insurance coverage was insufficient, so Curran sought the $100,000 in uninsured motorist (UM) benefits under her State Farm policy. She gave State Farm 30 days to tender the limits, estimating her damages at $3.5 million due to Reflex Sympathetic Dystrophy Syndrome (RSD). On the 29th day, State Farm demanded Curran submit to a Compulsory Medical Examination (CME) under the policy.

The CME request was made pursuant to the terms of the insurance policy, which provide that a claimant has the duty to

“be examined by physicians chosen and paid by us as often as we reasonably may require. A copy of the report will be sent to the person upon written request. The person or his or her legal representative if the person is dead or unable to act shall authorize us to obtain all medical reports and records.”

A different section of the policy provided that “[t]here is no right of action against [State Farm] until all terms of this policy have been met.”

Curran refused to attend the CME and instead filed suit.

At trial, the jury awarded Curran $4.65 million in damages. State Farm appealed, arguing that Curran’s failure to attend the CME constituted a material breach of a condition precedent to coverage, resulting in a forfeiture of all policy benefits, regardless of whether State Farm was prejudiced by her non-compliance.

The Fifth District Court of Appeal disagreed. The court held that although Curran breached the contract by not attending the CME, State Farm still had the burden to plead and prove prejudice resulting from that breach in order to avoid liability. Simply pointing to the breach itself was not enough.

Recognizing the public importance of the issue, Florida’s Supreme Court reviewed the decision and, in a 5-2 ruling, affirmed the Fifth DCA. The Court held that an insured’s failure to comply with a CME provision does not automatically forfeit coverage unless the insurer can demonstrate actual prejudice. Importantly, the burden to prove prejudice rests with the insurer, as part of its affirmative defense.

State Farm’s mistake? It assumed the forfeiture argument would carry the day and neglected to develop the record on prejudice. In fact, the Court noted that Curran had offered to submit to a Rule 1.360 medical examination after litigation began, but State Farm strategically deferred the examination, betting everything on its forfeiture argument. That gamble failed.

The takeaway? Curran was a landmark victory for policyholders, but it also serves as a cautionary tale. Insureds who ignore policy requirements, even minor ones, do so at their peril. The stakes in Curran were immense: either collect the $4.65 million jury verdict — to recover this amount, instead of just the $100,000 UM limit, the insured will be required to show, in a separate trial, that State Farm was in bad faith for failing to tender the $100,000 within the demanded 30 day time period. She preserved the right to do this by filing a Civil Remedy Notice — or walk away with nothing. Had State Farm done a better job of presenting prejudice evidence, the outcome could have been very different.

Rest assured, insurance companies have studied Curran carefully. In future cases, they’ll be prepared to document prejudice to enforce forfeitures. Policyholders and their attorneys must be equally vigilant in navigating these contract provisions.

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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. 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.

How Much Must Be Repaid?

The reimbursement amount depends on two key factors:

1. Policy Language
2. 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. 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.

The most common payment sources are PIP, MedPay, health insurance, Medicare, Medicaid, and bodily injury liability insurance.

With a few exceptions, every owner or registrant of a motor vehicle required to be registered and licensed in Florida must maintain PIP insurance. See Florida Statute 627.733. PIP, which applies without regard to fault, covers medical expenses and lost wages. Most Florida policies limit PIP coverage to $10,000 and apply deductibles.

One of the benefits of the ride share industry is that people can go without owning a vehicle. However, PIP is not automatically available to those PIP passengers who live in Florida and do not reside with a relative who maintains PIP insurance. Likewise, other medical insurance may not be available.

In some instances, ride share drivers have PIP coverage for passengers. The driver must inform his carrier of his ride share work and pay a premium for ride share coverage. If the driver fails to do this, the carrier will deny coverage. Uber is not required to maintain PIP in Florida, so it doesn’t.

Uber maintains bodily injury liability (BI) coverage and MedPay under its Florida insurance policies. Contrary to popular belief, it does not maintain UM/UIM coverage. Uber’s BI only applies if its driver is at-fault. It covers non-economic damages such as pain and suffering and economic damages such as income loss and medical expenses. Like PIP, MedPay applies without regard to fault. If PIP isn’t available or is exhausted, it will cover up to $5,000 in medical expenses. Unlike PIP, it must be reimbursed from BI payments (its own or from third-parties).

Health insurance, Medicare, and Medicaid may also cover medical expenses. Like MedPay, they must be reimbursed from BI money.

Medical expenses are costly. Steps can be taken to limit personal exposure to those expenses.

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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. 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.

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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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. 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.

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. 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.

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. 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.

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. 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.

In any action to which this part applies in which liability is admitted or is determined by the trier of fact and in which damages are awarded to compensate the claimant for losses sustained, the court shall reduce the amount of such award by the total of all amounts which have been paid for the benefit of the claimant, or which are otherwise available to the claimant, from all collateral sources; however, there shall be no reduction for collateral sources for which a subrogation or reimbursement right exists.

768.76(2)(a) defines “Collateral sources” as follows:

(a) “Collateral sources” means any payments made to the claimant, or made on the claimant’s behalf, by or pursuant to:
1. The United States Social Security Act, except Title XVIII and Title XIX; any federal, state, or local income disability act; or any other public programs providing medical expenses, disability payments, or other similar benefits, except those prohibited by federal law and those expressly excluded by law as collateral sources.
2. Any health, sickness, or income disability insurance; automobile accident insurance that provides health benefits or income disability coverage; and any other similar insurance benefits, except life insurance benefits available to the claimant, whether purchased by her or him or provided by others.
3. Any contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the costs of hospital, medical, dental, or other health care services.
4. Any contractual or voluntary wage continuation plan provided by employers or by any other system intended to provide wages during a period of disability.

Interestingly, under 768.76(2)(b), “Medicare, or any other federal program providing for a Federal Government lien on or right of reimbursement from the plaintiff’s recovery, the Workers’ Compensation Law, the Medicaid program of Title XIX of the Social Security Act or from any medical services program administered by the Department of Health shall not be considered a collateral source.” Subpart (2)(b) is there to make it clear that the enumerated programs have a right of subrogation or reimbursement. However, as suggested by the second clause of subpart (1), there can be other entities that have paid compensation to the benefit of the claimant with the right of subrogation or reimbursement. The most common of these are health and disability insurance carriers. The right to subrogation or reimbursement can be by contract or common law. See Centex-Rodgers Construction Company v. Herrera, 761 So.2d 1215 (Fla. 4th DCA 2000). However, unlike most rights by contract, the common law right only applies if the insured has been compensated for all of his or her damages. See Humana Health Plans v. Lawton, 675 So.2d 1382 (Fla. 5th DCA 1996):

Where full recovery has been made and the insured has been made whole, any payments to the insured exceeding the actual damages may be viewed as a double recovery, thus equitably entitling the insurer to subrogation against the insured’s recovery. 675 So.2d at 1384; see also Magsipoc v. Larsen, 639 So.2d 1038 (Fla. 5th DCA 1994).

What often occurs when amounts have been paid for the benefit of the claimant by entities with the right of subrogation or reimbursement, is that the claimant negotiates with the entity to reduce or waive the lien. Liability carriers then argue that the claimant’s damages are the negotiated amount rather than the full amount paid by the collateral source. If the argument were valid, which it is not, it would reduce the liability carriers’ exposure. The argument was made and shot down in Centex-Rodgers Construction Company v. Herrera, M.D., 816 So.2d 1206 (Fla. 4th DCA 2002). The Court held as follows:

Section 768.76 of the Florida Statutes does not imbue a wrongful tortfeasor with the benefit of a plaintiffs settlement of a third party claim with a negotiated subrogation waiver. Bruner v. Caterpillar, 627 So.2d 46 (Fla. 1st DCA 1993).

In Dominos Pizza v. Wiederhold, 248 So.3d 212 (Fla. 5th DCA 2018), Medicare and Cigna paid $863,056.55 on the decedent’s behalf. The estate satisfied the liens for $51,612.49. Dominos argued that it would be an inappropriate windfall to allow the estate to recover the total amount paid by Medicare and Cigna. The trial court agreed. The 5th DCA disagreed. Here is what it said:

The estate has a right to claim medical expenses paid by or on Mr. Wiederhold’s behalf. Id. § 768.21(6)(b); Horton v. Channing, 698 So.2d 865, 869 (Fla. 1st DCA 1997) (determining that $425,824.42 paid by insurance providers constituted medical expenses paid on behalf of decedent, and therefore, constituted damages as provided by section 768.21(6)(b), despite fact that plaintiff and estate had no obligation to repay providers). Further, such damages are not subject to reduction when subrogation or reimbursement right exists. § 768.76(1), Fla. Stat. (2012); Sutton v. Ashcraft, 671 So.2d 301, 303 (Fla. 5th DCA 1996). “The waiver or relinquishment of such rights does not destroy their character.” Sutton, 671 So.2d at 303. “[I]t is the existence of such rights, not their exercise, which denies a tortfeasor the statutory right to a collateral source reduction.” Id.; see Centex-Rodgers Constr. Co. v. Herrera, 816 So.2d 1206, 1207 (Fla. 4th DCA 2002) (following Sutton, and noting that disability carrier’s release or waiver of its subrogation rights, pursuant to negotiated settlement, does not destroy character of disability payments). In other words, Domino’s cannot escape liability for medical expenses paid on Mr. Wiederhold’s behalf because she settled those claims. As this Court has explained:

It may seem unfair that, by virtue of a contractual arrangement with the insurance carrier, the survivors received substantially more than their stipulated damages and that the defendants are required to pay the full amount of damages even though part of those damages had been paid. On the other hand, plaintiffs’ counsel was ingenious in inducing Allstate, in return for a $95,000 discount on the face amount of the UM coverage, to surrender its subrogation rights and the opportunity to pursue and settle a claim of speculative value. There is no reason that ingenuity should accrue to the benefit of the tortfeasors. Walker v. Hilliard, 329 So.2d 44 (Fla. 1st DCA 1976). The principle behind the collateral source rule is that it is better for the wronged plaintiff to receive a potential windfall than for a tortfeasor to be relieved of responsibility for the wrong. Respess v. Carter, 585 So.2d 987, 990 (Fla. 5th DCA 1991).

Based on the plain wording of section 768.21(6)(b), we conclude the trial court erred in prohibiting Mrs. Wiederhold from seeking compensation for medical expenses paid on Mr. Wiederhold’s behalf.

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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.

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. 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.

Our client lost his right leg when run over by the lawnmower he was operating for his employer. Initially thinking that the mower was owned by the employer, which would give the employer workers’ compensation immunity, we set our sights on a product liability case as the only way to secure a civil remedy for our client.

We quickly discovered that any products liability case was barred by Florida’s Statute of Repose. We also learned that our accident was caused by a post-manufacture alteration to a safety feature.

On the shoulder of a Palm Beach County roadway, our client placed the riding mower in neutral and exited the machine to discard garbage in its path. It was a task his superiors previously instructed him to do to avoid damaging the machine. Unfortunately, the riding mower still moved forward and ran over his right leg, ultimately requiring amputation above his knee.

The machine had been designed with a kill switch to prevent it from operating without a driver on the seat. The owner of the mower had disabled the kill switch.

Section 440.11, Florida Statutes, grants employers immunity from civil damages (e.g., non-economic losses such as “pain and suffering”) for all conduct short of criminal resulting in injury. Not even removing the kill switch would qualify as conduct egregious enough to lose the immunity. The difference in damages recoverable through workers’ compensation and civil law can be in the millions.

After initially thinking that the machine was owned by the employer, our subsequent investigation disclosed that it was instead owned and maintained by a subsidiary company of the employer. This company tampered with the kill switch. Typically, subsidiary companies do not get workers’ compensation immunity. Our subsidiary was not entitled to the immunity.

Once we convinced the owner’s liability insurance carrier that its insured was not entitled to workers’ compensation immunity and had altered the kill switch, the carrier quickly tendered policy limits.

The moral of the story is to conduct a painstakingly thorough investigation on the issue of workers’ compensation immunity.

The workers’ compensation case settled for $300,000!

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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.

The insurance policy contained language entitling the carrier to be reimbursed in full from any money our client was paid as a result of the accident.

We sued two individuals and a company seeking damage compensation for our client. After litigating the case for more than three years, we secured a reasonable settlement. We held the money in trust pending resolution of the Occupational Health & Disability Insurance carrier’s reimbursement claim. Unable to work out the claim amicably, we filed a petition to resolve the claim with the court that handled the underlying personal injury case. (Anticipating problems in resolving the reimbursement claim amicably, we asked the court to retain jurisdiction for that eventuality. Doing so allowed us to keep a smart judge and avoid a new filing fee.)

The policy contained the following language: “The Policy is governed by the laws of the jurisdiction in which it is delivered.”

The insurance carrier was home based in another state and the policy was made available to large companies throughout the United States who used independent drivers like our client, through a trust company based in Washington, DC. The carrier argued that Washington, DC law applied to the reimbursement claim since the policy was delivered to the trust in DC. Under DC law, the terms of the policy would control. This would effectively enable the carrier to recover 100% of the underlying settlement without our client netting anything. (The underlying case had exceedingly difficult liability issues. The most at-fault person, who was intoxicated, had no insurance and died penniless before we got the case. We ended up suing a separate company, which was responsible for highway assistance, for failing to have proper warning lights on its vehicle. We received a sizeable settlement, but the amount paid by the OH&D carrier was more sizeable.)

We argued that Florida law, in particular, Florida Statute 768.76(4), applied to the reimbursement dispute. Under this statute, the court would be allowed to reduce the reimbursement amount owed by taking various equitable factors into consideration including procurement costs and comparing the settlement amount to the full value of the case. See Jeffrey P. Gale, P.A. // Resolving Health and Disability Insurance Liens in Personal Injury Cases Under Florida Statute 768.76. more

Despite the existence of numerous potentially helpful and harmful legal concepts — e.g., contract language ambiguities, lex loci, choice of law, remedial v. procedural law, make whole doctrine — and solid case law favoring equitable distribution — e.g., Ingenix v. Ham, 35 So.3d 949 (Fla. 2nd DCA 2010) and Osler v. Collins, 870 So.2d 65 (Fla. 2nd DCA 2003) — the question of delivery was always foremost on the radar. Since courts favor enforcing the agreements of consenting parties, we figured our judge might simply focus on the insurance policy’s delivery language to guide her decision.

Turns out, Florida law was on our side.

Our client never received a copy of the OH&D policy. Rather, he received a certificate of the policy from the large Florida company for which he was providing trucking services as an independent contractor. This is common in situations like ours where the covered individual does not deal directly with the insurance company. Likewise, the Florida company did not receive a copy of the policy. Instead, it received packets containing the certificates to give to the independent contractors upon their signing up for the coverage.

Chapter 627 of the Florida Statutes addresses insurance rates and contracts. Section 627.402(3) provides as follows:

“Policy” means a written contract of insurance or written agreement for or effecting insurance, or the certificate thereof, by whatever name called, and includes all clauses, riders, endorsements, and papers that are a part thereof. The term “certificate” as used in this subsection does not include certificates as to group life or health insurance or as to group annuities issued to individual insureds.

In other words, unless the policy is one for “group life or health insurance or as to group annuities issued to individual insureds,” the certificate is considered the equivalent of a policy. The subject OH&D did not qualify as one of those exempted policies. Hence, even though the policy itself was not been delivered in Florida, delivery of the certificate of the policy in Florida qualified as the same thing.

Armed with this information, we were able to resolve the reimbursement lien so that our client was able to keep most of his settlement money.

These cases (and those cited therein and to them) explain the issue:

• Blue Cross of Florida, Inc. v. Turner, 363 So.2d 133 (Fla. 1st DCA 1978)
• Mathason v. American Nat. Life Ins. Co., 855 So.2d 261 (Fla. 4th DCA 2003)

Most insurance policies contain choice of law language. With individual policies, like for motor vehicle insurance, where the insured deals directly with the carrier or an insurance agent, the delivery issue is simple. Under Florida law, the carrier is required to deliver the policy to the insured. Moreover, where such a policy is procured in Florida, the policy will name Florida law as the choice of law. With polices like the OH&D in our case, which was procured through a different avenue, policy language can be nebulous and the issue of where the policy was delivered can result in factual disputes.

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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.

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.

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.

The successful denial of coverage in Geico Indemnity Co. v. Walker, Case No. 4D20-764 (Fla. 4th DCA May 12, 2021), is a cautionary tale for Floridians, as the circumstances underlying the denial are exceedingly common.

In Walker, the Geico insured was the driver in a single-vehicle crash that killed him and his passenger. The passenger’s estate filed a wrongful death action against the insured. Geico denied coverage under the driver’s policy because the subject vehicle was not a listed vehicle on its policy. With respect to the incident, Geico asserted that the subject vehicle did not meet the definition of an owned, non-owned, or temporary substitute vehicle.

Following Geico’s denial, the two estates entered into a settlement agreement whereby damages would be determined by arbitration and the driver’s estate would assign its right to sue Geico for breach of duty to defend and to indemnify. The arbitration resulted in an arbitration award of $7,722,150 in total damages for the passenger’s wrongful death claim against the driver.

The case we are discussing is the appeal from the passenger’s lawsuit against Geico facilitated by the assignment. At the trial court level, it was established that the vehicle operated by the Geico insured was a 1992 Porsche, made available to the driver by the owner, his stepfather, to use and take care of for ten years without specific restrictions. The Porsche was not listed under the Geico policy as an insured vehicle. Instead, the vehicle was listed in the stepfather’s automobile insurance policy with Allstate, which also listed the driver as an insured driver on that policy.

Both parties moved for summary judgment. Geico explained that its policy provided coverage for loss arising out of the ownership, maintenance, or use of the owned auto or a “non-owned auto.” The Geico policy defined “non-owned auto” as follows:

Non-owned auto means a private passenger, farm or utility auto or trailer not owned by, furnished or available for regular use of either you or your relative, other than a temporary substitute auto. An auto rented or leased for more than 30 days will be considered as furnished or available for regular use.

The Walker estate argued that the stepfather did not furnish or make the subject vehicle available for the driver’s regular use. It asserted that the subject vehicle, a 1992 Porsche, was a collector’s vehicle which the driver used infrequently and which the driver understood was not intended to be used regularly.

Ultimately, the trial court determined the subject vehicle qualified as a “non-owned auto” and therefore the Geico policy provided coverage for the subject vehicle involved in the accident. Geico appealed.

The appellate court focused on establishing the meaning of the phrase “not . . . furnished or available for regular use.” In deciding that the Porsche did not qualify as a “non-owned” vehicle, i.e., coverage was not afforded under the insurance policy, the court cited the following facts in support of its position:

[T]he stepfather’s testimony established that he gave the subject vehicle to the driver to use and take care of; that the driver had kept the subject vehicle for ten years; that the driver had his own set of keys to the vehicle; that the stepfather never restricted the driver’s use of the vehicle; that the driver had freedom to use it; and that how often the driver used the vehicle was left to the driver’s discretion.

The policy language at issue in the Walker case is common to most Florida motor vehicle insurance policies. While the facts in the case were unique, the language is broad enough to apply to many other scenarios. Consider the following: One of my children drives a fancy SUV. My wife likes to drive the vehicle and has her own key, and our daughter is generous in letting her use it when convenient, which is not often since she lives in another city 75 miles away. However, there could come a time when our daughter decides to move back home for an extended period of time. If this happened, my wife would have unrestricted use of the vehicle. The SUV is not listed on our motor vehicle insurance policy. If we didn’t list the vehicle in the policy and my wife got into a crash, our carrier might rely on the Walker case to deny coverage.

Insurance policies are contracts filled with consequential language. While case law and statutes may control some of a policy’s terms, for the most part the rights and duties of the insured and insurer are set forth in the policy. The language in Walker is a typical example. It was sitting there like a land mine waiting to be triggered. In Walker, the simple language cost the decedent’s estate, made up of her grieving family members, more than $7 million.

Moral of the story: READ AND UNDERSTAND YOUR INSURANCE POLICY!

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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.