Florida Insurance Law Blog : Florida Insurance Lawyer & Attorney : Mark Nation Law Firm : Orlando, Longwood, Gainesville

While our client was stopped at a traffic light, another driver got out of his car and attacked our client in a random road rage incident.  Our injured client submitted her medical bills to her PIP No-Fault insurer, Nationwide, for reimbursement.  PIP insurers in Florida are required to pay for all medical expenses that are "related" to the "use, operation or maintenance" of a motor vehicle. The PIP insurer alleged that this incident was not "related" to the use of the motor vehicle, but instead was an intentional criminal assault which it believes is not covered by the insurance policy.

In Blish v. Atlanta Casualty Company, 736 So. 2d 1151 (Fla. 1999), the Florida Supreme Court noted:

Acts of violence are an ageless and foreseeable hazard associated with the use of a vehicle-for once a person sets out in a vehicle, he or she is vulnerable. The highwaymen and desperados of bygone times preyed on the wayfarer, and these villains are with us still. Each Floridian today, when he or she gets behind the wheel, faces a variety of dangers: a car-jacking at a stoplight, or a strong-arm robbery at a deliberately staged rear-end collision, or a road rage assault in rush hour traffic, or even a random shooting by an anonymous sniper from an overpass. The danger is particularly acute when the motorist is stranded as the result of a disabled vehicle.

The scenario in the present case is every motorist's nightmare. Losses resulting from a violent encounter with this ageless road hazard-i.e., the highwayman or opportunistic thug-might reasonably be said to be very much in the contemplation of Florida consumers when they are contracting to purchase auto insurance. The motivation of the assailant-whether it be to “possess or use” the vehicle, or to steal the victim's wallet or purse, or simply to harm the victim-is a nonissue to the consumer. We note that insurance companies were placed on notice at the time of enactment of section 627.736(1)... that the statute contemplates broad coverage.

The supreme court held that the driver's injuries were a reasonably foreseeable consequence of-- and that the injuries arose out of--the "ownership, maintenance, or use of a motor vehicle” and were therefore covered under the PIP portion of his auto insurance policy.

Nation Law Firm Attorney Paul Perkins filed a lawsuit against Nationwide for failing to pay the PIP benefits under the clear pronouncement from the Supreme Court that road rage incidents are covered by PIP. In the past, we have successfully handled several cases where PIP insurers have refused to pay medical expenses incurred in these types of road-rage incidents.

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On December 11, 2008, the Florida Supreme Court held that a parent does not have the authority to execute a pre-injury release on behalf of a minor child when the release involves participation in a commercial activity.

In Kirton v. Fields, SC07-1379 (Fla. Dec. 11, 2008), a parent took his 14 year old son to ride his ATV at a motor sports park. In order to gain entry to the facility and ride the ATV there, the father signed “release and waiver of liability, assumption of risk, and indemnity agreement.” Tragically, the child was killed immediately after a jump when his ATV landed on top of him.

In Florida, pre-injury releases (also known as exculpatory agreements) are looked upon with disfavor, but allowed. In an unusual twist, the boy’s father signed an affidavit on behalf of the defendants admitting: he willfully and with full understanding executed the release; it was his intention to waive the right to sue for the death of his son; he understood that by signing the general release, he was forever discharging the defendants for any circumstances which would cause the death of his son, even if caused by the negligence of the defendants.

Despite the release and the father’s stated intent, the supreme court found that public policy concerns do not allow parents to execute pre-injury releases on behalf of minor children. The court acknowledged that a parent’s decision to allow a minor child to participate in a particular activity is part of the parent’s fundamental right to raise a child, but that right does not lead to a conclusion that the parent has a fundamental right to execute a pre-injury release of a tortfeasor on behalf of a minor child. Referencing the financial burden placed on the family members, community, and people of the State when a minor child is injured, the court noted: “when a parent decides to execute a pre-injury release on behalf of a minor child, the parent is not protecting the welfare of the child, but is instead protecting the interests of the activity provider.”

In making its decision, the court referenced its decision in Global Travel Marketing v. Shea, 908 So. 2d 392, 399 (Fla. 2005), whereby it had earlier determined a parent could enter into a pre-injury agreement to arbitrate. The court drew a sharp distinction between waiving a minor’s actual legal claim/right versus waiving the forum in which such a claim is presented.

The supreme court also distinguished commercial activities from community-run and school-sponsored type activities, because they involve different policy considerations. In community and volunteer-run activities, the court stated “providers cannot afford to carry liability insurance because ‘volunteers offer their services without receiving any financial return.’ If pre-injury releases were invalidated, these volunteers would be faced with the threat of lawsuits and the potential for substantial damage awards, which could lead volunteers to decide that the risk is not worth the effort.”

This important case resolves a conflict between the districts regarding the propriety of a parent releasing future, unknown claims of a minor child. It will be interesting to see the fallout of this case as these exculpatory agreements are commonly used in children’s extra-curricular activities (from activities such as karate, soccer, or gymnastics, to popular birthday party events for minor children).
 

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The Nation Law Firm was recently successful in a suit against Progressive Select Insurance Company for Personal Injury Protection benefits.

Our client was injured in a car accident and sought PIP benefits from Progressive, which insured the car he was riding in at the time of the accident.  Progressive denied the claim and said that our client should file for PIP with Allstate (which insured his grandmother's automobile). It was Progressive's position that our client was a "resident relative" with his grandmother at the time of the crash and, since his grandmother carried PIP with Allstate, he should seek PIP benefits from Allstate. Allstate denied the claim because his grandmother gave a recorded statement to Allstate and claimed that he was not a resident relative at the time of the crash.

The law in Florida is clear on which PIP carrier must provide coverage. The first place to look for PIP is the injured person's own insurance company if he owns a car. If he has his own PIP, then that insurer will provide coverage. If he owns a car and does not carry PIP, then no PIP will be afforded. (One is not required to carry PIP on an "inoperable" car). The next place to look for PIP is from the auto insurer of a "resident relative." If a resident relative has PIP, then that insurer will provide coverage. Finally, if there is no other PIP available from the first two sources, then the last place to look for PIP is from the insurer of the car in which the injured person was riding at the time of the crash.

At the time of the crash, our client owed a car, but it was inoperable. He did not carry PIP on that car. Thus, PIP had to come from either his grandmother's PIP as a resident relative; or from Progressive as the insurer for the car in which he was injured. The battle lines were drawn - the case turned on the factual issue of whether our client was, or was not, a resident relative with his grandmother at the time of the crash.

Two days before the accident which injured him, our client had moved out of his grandmother's house after a fight. At the time of the crash, and for some time after, he moved from place to place, but did not return to sleep at his grandmother's. At the time of the crash, his driver's license still had grandmother's address, he still got mail at his grandmother's house, he still had his belongings at his grandmother's house. But, he never slept at her house after leaving two days before the accident. This was still all true some two years after the accident also. Our client testified that at the time of the accident, he had no intent to move back to his grandmother's house.

We filed a declaratory judgment action against Progressive seeking a judicial determination that he was not a resident relative of his grandmother at the time of the crash. Just last week, after much discovery, Progressive agreed to pay the PIP claim in full, and to pay all of our attorney's fees and costs incurred in prosecuting the case.
 

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The demographic and workforce study, "Mapping the Future - Estimating Florida Again Services Needs 2008 to 2030," recently concluded that Florida's 85-and-over population is forecast to grow by 126 percent in the next 22 years. This huge increase is on top of the fact that Florida already has the highest percentage of senior citizens in the United States.

This sharp increase points out the growing need for Long Term Care Insurance for Florida's citizens. Along with the increase in the issuance of Long Term Care policies, I have seen an increase in denials of claims.  There are two ways insurance companies pay benefits under a long-term care policy.  The policy might pay a fixed dollar amount per day (known as "indemnity based coverage") or the policy might pay certain actual expenses you incur (known as "expense based coverage").

These policies and their terms are extensively regulated by Florida Statutes Section 627.9401 - 9408, as well as Florida Administrative Code 69O-157.001 - 304. These statutes and regulations set forth the minimum benefits that must be offered under Long Term Care policies, as well as establishing how these long term care policies can be marketed, and sold.

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Tropical Storms can cause significant property damage.  In August, 2008, Tropical Storm Fay caused extensive damage across Florida, prompting President Bush to declare the entire state of Florida a Federal Disaster Area.  The Orlando Sentinel reported that Brevard County, alone, suffered approximately $10 to $12 million dollars in property damage due to Fay. 

One of our clients suffered roofing damage from Tropical Storm Fay's winds.  Our client is insured with Tower Hill Select Insurance Company, and submitted his claim for the storm's damage to Tower Hill.  In response, Tower Hill retained the services of engineering firm "Rimkus Consulting Group, Inc." to examine the roof.  Rimkus has stated that the roof damage is not due to Tropical Storm Fay's winds, but instead is due to improper construction, and poor maintenance.  On the contrary, we believe that we will be able to show that the roof, which never leaked until after Tropical Storm Fay, was indeed damaged by Fay's high winds, and extraordinary rainfall amounts. 

The Nation Law Firm has previously been successful in showing an extensive (both long-lasting and deep) financial relationship between Rimkus Consulting and the insurance industry.  We anticipate being able to once again demonstrate that connection.

As usual, if we are successful in prosecuting our client's roofing claim, Tower Hill will be required to pay our attorney's fees and costs to bring the claim and secure justice for our clients.  If The Nation Law Firm is not successful in securing insurance coverage for our client, we will work for free. 

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The typical statute of limitations on an uninsured motorists claim is 5 years from the date of the accident. In Rundell v. Progressive Express Insurance Company, 33 FLW D2665 (Fla. 1st DCA November 17, 2008), Progressive filed a declaratory judgment action alleging that there was no UM coverage for a passenger injured in an accident.

More than 5 years from the date of the accident, the passenger sought UM benefits under the policy. Progressive sought a declaration that the claim was barred by the 5 year statute of limitations. The Court first confirmed that the passenger’s UM claim was a compulsory counterclaim; and then, citing Londono v. Turkey Creek, Inc., 609 So. 2d 14 (Fla. 1992), held that in cases where the damages are “fungible,” such as for money damages, the “statutes of limitations do not apply to compulsory counterclaims.”
 

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