Palm Coast Injury Law Blog : Florida Personal Injury Lawyer & Attorney : Philip J. Chanfrau

Lots of my clients think they have Full Coverage just because that's what they were told when they bought car insurance. In Florida Full Coverage is sometimes open to debate.  Insurance companies are not too good about explaining it, and clients often wind up with less than full coverage.

The whole subject of automobile insurance coverage is as boring as can be.  Until you have an accident you just pay and pay, for years, never thinking you will be in an accident or have to make a claim.  Lots of people are laid off, and they can't afford to pay for insurance so they drive around with no coverage.  It is estimated that 40% of the drivers in Florida have no insurance.  When you add the people who only have Personal Injury Protection (PIP) benefits, the number of drivers with no liability insurance is probably 50%.

So, the moral of the story is to get insurance so that if you are in an accident you don't have to rely on the at fault driver being financially responsible for your accident.  How?  By getting Uninsured Motorist insurance coverage from your own auto liability insurance company.  Florida law gives you the right to buy this valuable insurance. 

But why get it if you already have a major medical insurance policy through work, or have medicare?

Because Uninsured motorist insurance and Medicare pay for different things that are not covered in a major medical or medicare plan.  Like what?  Let me make a short list:

1. Loss of vision
2. Loss of hearing
3. Loss of ability to talk
4. Loss of taste, touch and smell
5. Loss of ability to drive a car, go shopping, or play golf
6. Loss of ability to fish, swim or bowl
7. Loss of ability to remember
8. Loss of ability to sleep
9. Lost income
10. Lost of a relationship with a loved one

 How much are those things worth?  In my opinion they are priceless.  But the law gives you the right to get compensated for them if you have Uninsured Motorists coverage and are seriously injured by a driver with little or no insurance.

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Having had the privilege of representing Bikers (and going to trial for many of  them) who were seriously injured while riding their motorcycles, there are a couple of things that all motorists need to be reminded about.  First, motorcycles are not as easy to see as larger vehicles and second, injuries involving them, are always extremely serious, and include brain damages due to head injuries, death, paralysis and amputations.  A minor case involves severe road burns and/or scarring. I once got a call from an Alabama man whose beautiful young daughter lost a leg while on the back of her friend's motorcycle.  She had promised to stay off his bike when she was allowed to come to Daytona...Because of the severity of injuries, most cases settle with little legal effort for the "policy limits."  This means the at fault driver had so little insurance it was not  even a fight to get.  Bikers ought to consider getting Uninsured Motorists coverage for as large a limit as possible if they continue to ride.

There are two major accident types which cause these injuries: 

• Drivers who make a sudden left turn into and across the path of the Biker, and
• drivers who rear end the bikers.  Rarely do you hear of a biker who turned into the path of an oncoming vehicle.  My biker friends are sober "as a Judge" when going for a ride, have gone to motorcycle school and leave plenty of room to maneuver when on the road.

In my experience, the biggest challenge to getting a fair trial for a Biker is during Jury selection.  In my opinion  jurors are still of the opinion that Bikers are devil may care, reckless and thrill seekers, even willing to take life and limb risks to ride their bikes.  People who own motorcycles are usually knocked off by the defense using their peremptory challenges.  To prejudiced or ignorant jurors hearing a motorcycle injury case, it makes no difference that the bikers are on the way to work at 7:00  in the morning, or run over from behind by a drunk driver.

We live in a part of Florida where Bike week is celebrated twice a year, once in March and one in October.  The number of Bikers who plan annual trips to attend Daytona is well  over 100,000.  They spend hundreds of millions of dollars locally and deserve our respect.  Many are professional doctors, lawyers, accountants, and own and operate successful businesses out of state.  It galls me to see ads by attorneys who patronize bikers and advertise proudly picture their motorcycles as a means to say "We are Bikers too.  Hire us."   They remind me of the Kodiak bears in Alaska trying to snare salmon during the annual salmon runs.

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Last week I posted a blog about Leaving Money on the Table.  Today, I am discussing something much more exciting and equally as interesting:  finding extra insurance money.  The starting point again is Uninsured Motorists coverage, also known as under-insured motorists coverage.  Uninsured motorist coverage is like standby insurance in case you, a family member or someone in your car gets hurt by a driver with no insurance, or not enough insurance.

In today's tough economy lots of people are driving bare, with no insurance. Driving without the mandatory insurance can result in a suspension of a driver's license.  Continuing to drive after suspension of driving privileges can land a driver in jail. Letting someone drive who has a suspended license may result in the seizure and forfeiture of the vehicle under the Florida Contraband and Forfeiture Act. So, people who need their cars should think twice before doing a favor by letting a suspended driver use it.

I can't tell you how many times a client has come in and says he thought he had "full coverage." It often turns out he has the bare bones minimum policy.  When I hear this I make it a point to carefully question him about how his policy was issued.   In Florida all that is required is $10,000 in property damages and personal injury protection (PIP).  Liability and UM are not mandatory.

UM insurance is bought either by the company you work for or from your own insurance company.  It is intended to protect you if someone hits you without any or enough insurance. If you were injured while driving a company vehicle by another driver who was uninsured or underinsured you should check with your company to see if it ever signed a written rejection of UM coverage.

Whenever a new liabilty insurance policy is issued a written rejection or election about UM must be made. Florida auto insurance law has changed this simple rule into a complex legal maze.  The insured must decide:

• Do I want any uninsured motorists coverage? (Y/N) If NO, a Rejection is signed. The insurance company is off the hook if it gets this decision in writing.
• If Yes, do I want to buy UM coverage for the same amount as my liability coverage or some lesser amount?
• Do I want to stack my UM coverage?

The statute is FS 627.727(1) which in part reads:

"(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 or supplemental thereto 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. However, the coverage required under this section is not applicable when, or to the extent that, an insured named in the policy makes a written rejection of the coverage on behalf of all insureds under the policy..."

The statute goes on to allow only the lessee decided whether to accept or reject UM coverage if a car is rented for more than one year.

So what does this legal mumbo jumbo mean?  Well, if your own insurance company does not have a written rejection in its file from you,  (or your employer) then it is on the hook for any damages the uninsured driver caused you.  It is as if your own insurance company gave you extra insurance for free.  It cannot bill you for the UM coverage after the claim as a condition to providing it to you.  That was the exact holding in Mercury Insurance Company v Anatkov, 929 So.2d 624 (Fla. 3rd DCA 2006).  Better yet, once the insurance company denies you UM benefits, it is required to pick up the tab for your attorneys fees too!  And if your employer  did not sign off on getting UM coverage, you can make a claim for UM benefits through your company's liability insurance company.  That was the holding in Travelers Ins. Co. v Quirk, 583 So. 2d 1026 (Fla. 1991).

Bottom line:  If there is no signed rejection of UM coverage, your own insurance may have to pay you uninsured motorists benefits.  In a case where serious injuries have occured, the rejection should always be checked.

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