Articles Posted in Uninsured/Underinsured Motorist Coverage

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Pursuant to Florida Statutes § 627.727, an insurer must provide uninsured motorist (“UM”) coverage alongside vehicle liability coverage, unless the insured rejects the UM coverage in writing.  The statute further provides that UM limits shall not be less than the bodily injury limits, unless the insured selects a lower limit that complies with the plan’s rating.  If the insured chooses to reject coverage or elects lower limits, he or she must do so on a form approved by the Office of Insurance Regulation. When a named insured makes the election on the proper form, it is 734602_63937726presumed that there was an informed and knowing selection by all of the insureds.

UM coverage is frequently litigated. The First District recently examined whether a company could have a policy with a half million dollar UM limit for executives and their families, while only carrying a limit of $30,000 for other insureds under the policy, including other employees.

In Germany v. Darby, an employee was injured in a work-related automobile accident while driving a vehicle both owned and insured by his employer.  The other vehicle involved in the accident was uninsured.  The vehicle was covered under the employer’s insurance policy, which included UM coverage of up to $500,000 for executives, but $30,000 for other employees.  The limits were lower than the bodily injury limits under the policy, but the employer had selected these limits on the appropriate officially approved form.

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Automobile accidents can be very complex events. While fault often lies with one or more of the vehicles involved in the collision, there are sometimes vehicles involved in the events leading up to the accident that are not involved in the collision itself. An unidentified vehicle that was involved in the events leading to the accident but that was not involved in the accident itself is known as a “phantom vehicle.” A phantom 426515_25954070vehicle can complicate the determination of fault and make full recovery difficult.

When a phantom vehicle causes an accident, the injured person’s uninsured motorist coverage may apply. Uninsured motorist benefits are available even if there is no contact between the phantom vehicle and the insured vehicle. It can be difficult, however, to prove the existence and fault of the phantom vehicle, particularly in single-vehicle accidents.

The Fourth District recently heard a case involving a phantom vehicle defense. In Millsaps v. Kaltenbach, the plaintiff sued another driver, alleging that he had caused an accident in which she was injured. The defendant’s answer included an affirmative defense that he was attempting to avoid contact with another vehicle at the time he struck the plaintiff’s vehicle and had not failed to exercise reasonable care. The plaintiff amended her complaint to add an underinsured motorist claim on the grounds that the defendant did not have sufficient coverage to compensate her for her injuries, but she did not include a claim for uninsured benefits to cover any damages attributed to the driver of the phantom vehicle. She was subsequently permitted to conform to the evidence of the phantom vehicle’s negligence and to add a claim for uninsured motorist coverage based on that theory.

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Uninsured motorist (“UM”) coverage provides benefits to the insured when the at-fault vehicle does not have insurance. In Florida, when a person owns multiple vehicles, he or she may pay a premium to “stack” UM coverage, which allows the insured to recover UM benefits under multiple policies for the same accident. If stacked coverage is not purchased, the insured can only recover UM benefits under one policy.

Many people do not fully understand the complex language of insurance policies. What happens, then, when the insurance agent tells the insured she has coverage that the insurer later denies exists? The Second District recently decided such a case.

856340_85280678 (556x800)In Gallon v. Geico General Insurance Company, the plaintiff was injured as a passenger in his mother’s car. The mother had insurance on the vehicle through the defendant, and the plaintiff made a claim for UM benefits. The insurer argued that he was subject to $50,000 limits, even though there were two vehicles on the policy, and the policy indicated that the mother had purchased stacked coverage. Coverage was limited, argued the insurer, since the mother had purchased UM coverage on only one of the vehicles.

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Accidents are traumatic enough, but an insurer can make things worse for the victim by questioning her injuries. The insult is increased when it comes from the victim’s own insurer. In State Farm Mutual Ins. Co. v. Curran, the Florida Supreme Court considered whether an insured forfeits benefits under her policy by breaching a provision requiring a medical examination.


In this case, an accident victim reached a settlement with the at-fault driver and subsequently requested her $100,000 underinsured motorist policy limits. The policy contained a provision requiring her to submit to examination by physicians as often as the insurer reasonably required. It also stated that she had no right of action against the insurer until all of the terms of the policy were met. Her insurer, State Farm, attempted to schedule a compulsory medical examination (“CME”), but after some correspondence, including a reservation of rights letter, the woman ultimately refused to attend.

The woman filed suit and State Farm asserted an affirmative defense that she had breached the policy’s terms. The trial court granted summary judgment in favor of the plaintiff, finding she had placed conditions on her participation that were not unreasonable. A jury awarded damages in excess of $4.6 million to the plaintiff and the court entered judgment against State Farm for the $100,000 policy limits.

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If a driver had insurance that met minimum legal requirements, but did not have payment limits high enough to pay for damage caused by an accident, that driver would be considered underinsured. In 2007, it was estimated that the amount of uninsured/underinsured motorists could average as high as 25% of the population in some areas.

The victim in this Florida uninsured motorists case was in the process of making a legal left turn when an uninsured/underinsured motorist failed to yield the right-of-way to a red traffic signal and plowed into the side of the victim’s vehicle, causing a massive collision in the middle of the intersection. Fortunately, the victim was wearing his seat belt when the accident occurred.

Paramedics transported the victim from the accident scene via ambulance to the emergency room with initial complaints of pain to his right shoulder and hip. After undergoing a thorough examination and diagnostic workup, he was eventually released with instructions to follow up with a physician. Subsequently, he followed up with a local chiropractic group with continued complaints of pain to the left shoulder and hip. In addition, he developed severe pain in the cervical, thoracic and lumbar spine. As a result, he was diagnosed with severe traumatic cervical hyperflexion/hyperextension injury with radiculopathy to the left upper extremity, left shoulder arthralgia, severe traumatic thoracic myositis and severe traumatic lumbar myositis with sciatica to the left lower extremity.

Due to his complaints and the physical examination, the victim was immediately placed on a conservative chiropractic/therapeutic rehabilitation program consisting of ultrasound, electrical muscle stimulation, moist heat, cryotherapy, mechanical traction, massage therapy, active range of motion exercises and adjustment manipulations. In addition, he was immediately referred to an orthopedic surgeon. The orthopedic surgeon found that he was suffering from a shoulder separation, as well as what he believed to be a lumbar disc herniation with radiculopathy.

The orthopedic surgeon performed surgery on the victim’s lumbar spine at a local surgery center which included provocative discography at L2-L3, L3-L4, L4-L5 and L5-S1. The post-operative diagnosis included confirmed herniated discs at the L3-L4, L4-L5 and the L5-S1 levels. Based upon the discography findings, he was immediately scheduled for surgery on the lower back.

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Our client in this case was a 31 year old divorced father who has sole custody of his 11 year old son.

On a rainy afternoon in June, the victim of this Florida uninsured motorists claim was traveling in Belle Glade, Florida on County Road 880 when another motorist lost control of his vehicle, causing him to enter the oncoming lane of traffic and strike our client’s vehicle virtually head-on. When he saw the other vehicle coming toward him, our client did hit the brakes and turned to the right as much as possible, but there was nothing he could do to avoid this crash. There was massive damage to both vehicles. Fortunately, our client was wearing his seat belt when this accident occurred.

The victim in this case was transported via ambulance to the hospital in Belle Glade. Once the extent of his severe injuries was ascertained, it was determined that he had to be immediately transferred to a trauma hospital. Accordingly, he was taken via ambulance to a hospital in Delray Beach, Florida, where he was treated for a constellation of traumatic injuries. X-rays revealed that he had suffered severe injuries to his left hip, including a fracture, and displacement and impaction of the left femoral head.

As a result of these massive injuries, this victim was taken into emergency surgery for an open reduction and fixation, which was very complicated as it involved the insertion of two separate plates which needed to be reduced with screws. What further complicated his condition was the fact that he had a dislocation of the hip and a fracture to the pelvis as well. The end result of the dislocation was a poor blood flow to the top part of the femur. It is this condition which resulted in avascular necrosis and ultimately resulted in the need for a second surgery, a hip replacement.

Additionally, while in the hospital, this victim suffered a swollen calf, which required an ultrasound examination. This exam revealed the horrific finding that he had developed deep vein thrombosis. He was forced to be placed on anticoagulant therapy and had a radiologist implant an IVC filter to prevent any thombotic episodes such as a stroke or a heart attack. He then had to be placed on Coumadin to address the deep vein thrombosis, which he remains on to this day.

This victim spent nearly two weeks in the hospital recovering from the injuries from this accident. When he was finally discharged, he was completely non-weight bearing and bedridden.

In addition to his very severe hip injuries, this victim also sustained a left knee contusion and laceration. An MRI of his left knee indicated acute internal derangement. Fortunately, his physician did not initially recommend surgery, but has confirmed that if his left knee pain persists, a diagnostic left knee arthroscopy may be indicated. Furthermore, the victim confirms that he still suffers from decreased range of motion and weakness in his left ankle and there has been no definitive diagnosis for his left ankle symptoms which are likely related to his entire left side, hip and knee injuries.

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Probably the least understood coverage on an automobile insurance policy is the Uninsured/Underinsured Motorist coverage. Of course, the uninsured motorist problem varies widely from state to state, but statistics from the Insurance Research Council show that in a study recently released, in 2007 Florida was one of the five states with the highest uninsured driver estimates, stating that 23% of drivers on the road in Florida were uninsured drivers. There is no way to determine how many drivers are underinsured in the case of a serious accident, but in all likelihood, it would be a staggering amount.

The law in Florida does not require drivers to carry insurance coverage to pay for bodily injury to others. In other words, insurance which pays for medical expenses, lost wages and, if you have suffered a permanent injury, pain and suffering. However, Florida law does require that drivers carry property damage coverage to pay for any property damage that may be caused to your car or other property. The sad fact is, many drivers don’t carry any insurance at all, and as a result, we take a risk every time we operate an automobile in the State of Florida that we will be injured in an accident by a person who does not have enough insurance coverage available to cover our injury claim nor adequate personal assets to satisfy a judgment.

If the injuries sustained in an automobile accident are minor, it is possible that the PIP benefits of $10,000.00 may provide adequate coverage. However, many drivers sustain serious injuries in auto accidents that would far exceed the PIP benefits. By purchasing Uninsured/Underinsured Motorist (UM) coverage, you can be assured that insurance benefits will be available in the event you are injured in an accident caused by the uninsured/underinsured driver.

Unfortunately, insurance companies avoid paying claims whenever possible and many times even try to discourage drivers from purchasing UM coverage by telling them it’s just excess coverage because they already have medical payments coverage, or if they have health insurance they don’t need UM coverage. UM coverage is not that expensive and can more than pay for itself if you are injured by an uninsured/underinsured driver.

UM coverage protects you and usually the passengers in your vehicle at the time of the accident. UM coverage protects you even if you are a passenger in another person’s vehicle or if you are a pedestrian at the time of the accident. UM coverage protects you when the accident is caused by a hit and run driver or if the identity of the other driver is otherwise unknown.

Your UM coverage in Florida can be stacked. This means that the limits of your policy can be multiplied by the number of cars that are insured on your policy. In other words, if you have $100,000.00 in UM coverage and you insured two cars on your policy on the date of an accident, you should have a total limit of $200,000.00 available in UM coverage.

Personal health insurance coverage will only cover a portion of your damages in a serious automobile accident. Even if your medical expenses are covered by your health insurance, if you have not obtained UM coverage, you will not be able to recover your lost wages and pain and suffering that you sustained in the accident.

Here at Schuler, Halvorson and Weisser, P.A., our team of personal injury lawyers understand the insurance laws in the State of Florida and are always committed to protecting your rights and best interests. If you or your loved ones are ever involved in a dispute over uninsured/underinsured motorist coverage, we urge you to seek advice from one of our experienced personal injury attorneys before talking with anyone from your insurance company. We will provide you with a free consultation, with no attorney’s fees or costs, unless and until you receive compensation.