They may not be equally at-fault. But as a Fort Lauderdale personal injury lawyer can explain, the fact that an injured party was partly responsible for a crash does not bar them from seeking compensation from the other party, at least not in Florida. That’s thanks to a doctrine known as comparative fault.

Broadly, comparative fault (also called comparative negligence or contributory negligence) is a partial legal defense that can reduce the amount of monetary damages a plaintiff can recover in a negligence-based claim. It’s based on the degree to which the plaintiff’s own fault, negligence, or wrongdoing contributed to cause the injury or exacerbate it.

For example, if Person A runs a red light and causes a crash that injures Person B, the latter has a legitimate claim against the former. This is true even if Person B also happened to be speeding at the time of the crash, thereby making their injuries more severe than they might have been otherwise. In this situation, a jury may find that Person A was 80% at fault and Person B was 20% at fault. If the total damages were $100,000, then Person B’s total damages would be reduced according to their own fault – so by 20%. That means the most they could recover in that scenario would be $80,000.

Florida has been a pure comparative fault state since 1973. That meant that even if you were 99% at fault for the injury you sustained, you could still pursue legal action against the other person for their 1% of fault.

However, that changed in March 2023, with updates to F.S. 768.81, Florida’s comparative fault law. The statute was changed to say that if you are 51% or more responsible for your own injuries, then you cannot recover any damages at all. However, you could be 50% at fault and still recover the other 50% from other at-fault parties.

There are a few states where evidence of any comparative fault will eliminate a plaintiff’s claim to monetary damages in a personal injury case. But even despite this new law change, Florida isn’t one of them. We now adhere to what is called “modified comparative fault with a 51% bar.” This is the most common comparative fault standard in the country, though some states set the bar at 50% instead of 51%.

Comparative fault was always a concerning affirmative defense in Florida, but that’s now more true than ever. A finding of comparative fault now not only risks a reduced damage award – but loss of the case altogether.

It’s worth noting that you should not presume that you will be found comparatively negligent until you talk to a personal injury lawyer. The court may look at the series of events differently than you. It’s possible an accident reconstruction will show the crash happened slightly differently than how you are remembering OR that your presumed fault played only a small part in the outcome.

This is also why you should never apologize at an accident scene. Even if you are genuinely sorry they are hurt, you don’t want your words to be misconstrued as an admission of negligence on your part.

If you are hurt in a car accident in Fort Lauderdale, our Broward personal injury lawyers can examine the facts of your case, determine if you have a viable claim, and help you navigate the claims/litigation process.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

F.S. 768.81, Comparative Fault

More Blog Entries:

Broward Injury Lawyer on Car Accident Dangerous Instrumentality Doctrine, Dec. 8, 2024, Fort Lauderdale Car Accident Attorney Blog

As a longtime Fort Lauderdale car accident lawyer, I’ve sadly seen viable damage claims undermined because the person involved made some missteps early on. And it’s understandable – you’re traumatized, maybe disoriented, and possibly overwhelmed.

That’s why it’s always a good idea to contact a personal injury lawyer as soon as possible after a crash, particularly one that involves serious injuries. We’ll help walk you through every aspect and fight for you to receive full and fair compensation.

Note that while Florida is a no-fault state when it comes to car accidents, that does not mean you’ll only be dealing with your own insurance. If your injuries are serious and the other party was at-fault, there’s a good chance you’ll be able to step outside the no-fault system and file a claim against the at-fault driver’s insurer.

Top 4 “Don’ts” After a South Florida Car Accident

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1. Don’t drive away. If you panic and leave the scene of an accident, you could be failing to collect key evidence for a future claim. Not only that, it could be a serious crime. F.S. 316.027 makes leaving the scene of a crash involving death or injuries a third-degree felony (at minimum), which carries a 5-year prison sentence. Now this provision is geared toward the at-fault driver in a crash, but the statute does not specify that – in large part because it may be impossible for the parties on scene to ascertain “fault” in the immediate aftermath. Therefore everyone needs to stay on scene. Leaving could substantially undermine if not eliminate your chances at filing a claim, it could open you to criminal consequences.
2. Don’t discuss the crash with others involved. Don’t talk about the crash on the scene with anyone except law enforcement. Statements you make to police after a crash are likely privileged, meaning they can’t be used against you later. (That doesn’t apply to all statements, nor factual findings by the officer.) However, if you talk to someone else about what happened, that person could testify against you. This includes statements like, “I’m so sorry,” or “I just didn’t see you.” It’s a natural inclination of many to apologize to another if they see they are hurt, even if they aren’t the one responsible for that pain. But in the context of a crash, such statements could be used against you later if you try to pursue a claim for damages.
3. Don’t forget to collect information. You may be reeling in the aftermath of a crash, but if you’re able, don’t forget to collect basics from the other driver. These include: Name, address, cell phone number, driver’s license number, license plate number, the name of their auto insurance company and their auto insurance policy numbers. You’re going to need this information for your own insurance company, even if all you do is file a no-fault claim for personal injury protection (PIP) coverage. It’s also a good idea to take some pictures and/or video and get contact information from any witnesses or bystanders.
4. Don’t underestimate how badly you’re hurt. In the aftermath of a crash, you may be running on adrenaline, and therefore “feel fine.” But you could be more seriously hurt than you realize. This is especially true of head injuries and soft tissue injuries. Even if you think you’re Ok, it’s a good idea to get checked out by a doctor as soon as possible afterward just to be sure. The longer you wait between the time of the crash and seeing a medical provider, the lower your chances of proving your injuries were connected to the crash.

DO contact an experienced Broward injury lawyer as soon as possible after a crash, particularly if you’ve suffered serious injuries. The Florida statute of limitation for filing such claims was recently shortened by lawmakers, so it’s important to act as quickly as possible. Even if you aren’t sure whether you have a claim, we can help you determine if you do and what your next steps should be.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Crash and Citation Reports & Statistics, Florida Department of Highway Safety and Motor Vehicles

More Blog Entries:

Why Broward Car Accident Lawyers Are Reluctant to Represent Both a Driver & Passenger, Jan. 8, 2024, Fort Lauderdale Car Accident Lawyer Blog

Defining a Conflict of Interest

As noted in Florida Rules Regulating the Florida Bar 4-1.7, some ethical conflicts of interest for lawyers exist when:

• The representation of one client would be directly adverse to another.
• There’s substantial risk that representing one or more client would be materially limited by the lawyer’s responsibilities to another client, former client, or third person by a lawyer’s personal interest.

Such conflicts can sometimes be waived if the lawyer believes they can provide competent and diligent representation to all clients, the representation isn’t barred by law, and each affected client gives informed consent.

When Interests May Conflict for Broward Car Accident Victims

When it comes to Broward car accident cases, the most obvious conflict of interest would involve representation of one driver suing another for negligence. That would likely never happen.

Similarly, it’s highly unlikely a Broward car accident lawyer could ethically represent both an injured passenger and the driver being sued for the negligence that caused the passenger’s injuries.

Where the lines become a bit more blurred is when two people in the same crash are suing a third party for negligence that caused both their injuries. For example, it might make sense for two family members injured in the same car accident to hire one lawyer if the other driver was mostly if not entirely at-fault. This is particularly true if you’re a parent of minor children.

However, it’s important to understand that if a driver and passenger suing the same driver for the same act of alleged negligence, a conflict can arise because the money will be paid from the same pot. If the injuries of one person are more severe, fairness would stand to reason that they should get a larger chunk of the money. An attorney representing both clients may find themselves with a conflict of interest because they’re advocating for the maximum payout for each.

Also bear in mind that there are few South Florida car accidents in which one driver is entirely, 100 percent at-fault for the crash. There are often several factors. If you are a passenger in a car with a driver who was just partially at-fault, you may have viable claims against both drivers. In that situation, it would be a conflict of interest for a Broward personal injury lawyer to represent both you and the person who was driving the car you were in.

Florida Bar Ethics Opinion on Car Accident Lawyer Conflicts of Interest

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The Florida Bar Professional Ethics Committee issued an opinion in 2002 that breaks down how Florida personal injury lawyers can determine whether there’s a conflict of interest in car accident cases. The original inquiry came from an attorney asked to represent both a passenger and driver in a lawsuit for negligence and property damage against a third-party driver.

The committee first pointed to a 1993 Florida Supreme Court ruling in in The Florida Bar v. Mastrilli, in which the Court held one attorney could not simultaneously represent both driver and passenger where a passenger is pursuing a damage claim for negligence against the driver.

Similarly, in State Farm Mutual Ins. Co. v. K.A.W., the Florida Supreme Court held that a law firm that represented a driver and passengers against third party insurers and tortfeasors couldn’t later represent passengers against the driver. This was even though the driver had a new lawyer and didn’t object to the passengers’ lawsuit.

Some of the scenarios laid out by the ethics committee:

• If there are no actual or potential claims against a driver by injured passengers, one attorney can ethically represent all parties against a third party, so long as there’s sufficient insurance coverage by that third party. However, if there is not sufficient insurance coverage, the attorney needs to explain the potential conflict of interest and all plaintiffs must agree about the distribution of benefits/recovery amongst themselves.
• If there’s evidence of negligence by the driver in a one-car accident, an attorney can’t represent both the driver and passenger. The only exception might be when a passenger and driver are members of the same family and the driver is uninsured/otherwise judgment-proof. Issues of comparative fault can come into play, though, so lawyers need to be very careful when accepting these cases.
• If the driver and passengers are all injured but evidence shows that the plaintiff driver was partially at fault, there’s a conflict of interest between the driver and passengers and a single attorney can’t represent them all ethically – even with everyone’s consent.
• If the passenger and driver are all family members and the driver is underinsured, uninsured, or otherwise judgment-proof, one attorney can ethically represent all parties against the driver’s UM/UIM policy – but only if the attorney determines it’s not worthwhile or appropriate for the plaintiff to sue the driver. An independent guardian or guardian ad litem may need to be appointed to ensure the interests of any minor children involved are protected.

If there is a situation in which a personal injury lawyers concludes there is a conflict of interest after already taking on the case, they may need to withdraw their representation. This could result in unfortunate delays. It’s worth noting too that because injury lawyers are paid on a contingency fee basis (meaning they aren’t paid fees unless/until they win), they won’t be paid if they need to withdraw representation early. This is why lawyers may be particular about the cases and clients they take on. It’s better for everyone in the long-run if potential conflicts of interest are identified at the outset.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Florida Bar Opinion 02-3

More Blog Entries:

Understanding Negligent Security at Florida Hotels – Fort Lauderdale Injury Lawyer Insight, Nov. 8, 2023, Fort Lauderdale Accident Lawyer Blog

Recently, the Florida Supreme Court was asked to weigh in on whether a claimant could pursue claims of dangerous instrumentality against two parties – both parents of the driver, one the title holder and the other the “bailee.” The “bailee” is one who gains possession/control of property but does not actually own it. Here, the father of the negligent, 21-year-old driver was the title-holder. The mother was the bailee; she was the primary driver of the car, but both parents frequently permitted their son to drive it as well.

According to court records in Emerson v. Lambert et al., the young man was driving home from dinner when he struck a motorcyclist, who is the plaintiff in this case. The crash was catastrophic, leaving the motorcyclist a quadriplegic.

In the subsequent Florida injury lawsuit, plaintiff named the driver and his parents as defendants, the latter two allegedly vicariously liable under the dangerous instrumentality doctrine.more

Jurors would later hear testimony that while the mother was the primary driver of the car, it was considered a “family car,” and anyone of driving age was free to take the extra key and use the car as needed. On the day of the crash, the young driver said he understood he had both his parents’ general permission to use the car. He was unsure if he’d spoken to his father that day, but he did expressly ask his mother for permission to take the car before leaving. She granted it.

As the trial wound to a close, the mother sought a directed verdict, arguing she couldn’t be liable under the dangerous instrumentality doctrine because the doctrine didn’t support holding family members liable as bailees. The trial court denied this motion, citing the 2000 Florida Supreme Court decision in Aurbach v. Gallina, a prior state supreme court ruling that left open the chance that a family member with identifiable property interest in a vehicle could be held vicariously liable, even if they didn’t personally own the vehicle.

The question of the mother’s liability as the bailee of the vehicle was put to the jury. The instruction was that if the greater weight of the evidence showed that she, as the vehicle bailee, gave her express or implied consent for her son to drive the car, then she should be held liable for his negligence.

The jury decided that as far as the crash itself, the driver was 75 percent liable and the motorcyclist 25 percent liable. It also found that the driver’s father as the car title owner and mother as bailee could be held vicariously liable for his negligence. Total damages were set at $27.4 million. After weighing fault apportionment and medical/social security disability setoffs, that meant a net judgment in favor of the plaintiff at $18.9 million. That amount was reduced to the statutory maximum of $600,000, pursuant to 324.021(9)(b)3, which limits financial damages owed due to a vehicle owner’s vicarious liability.

The mother again sought a directed verdict, as well as a new trial. Both requests were denied, and the case went to the Florida 2nd District Court of Appeal. The appellate court denied the request for a new trial, but reversed the trial court’s ruling on the issue of the mother’s vicarious liability. The court ruled that if a title owner of a car entrusts that vehicle to a family member who in turn inflicts injury on others with the car, the title owner can be vicariously liable. If a non-title-holding family member has a property interest in a car (as a bailee or otherwise) and then entrusts that car to another who causes injury, the bailee can only be liable if the title owner denies liability for that entrustment. That wasn’t the case here, the 2nd DCA ruled. The father/title owner should be vicariously liable for the entrustment.

The case was remanded to the trial court, but the 2nd DCA certified the question to the Florida Supreme Court, which in a split-ruling determined the appellate court ruled correctly. Vicarious liability under dangerous instrumentality doctrine would extend her to the father as the title owner, but not also the mother as the bailee.

Florida is the only state at this point that recognizes the dangerous instrumentality when it comes to vehicle owner liability for driver negligence. But as this case shows, its application isn’t unlimited.

If you’re injured in a Fort Lauderdale car accident, a Broward injury lawyer can explore every possible avenue and fight for maximum compensation.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Emerson v. Lambert et al., Nov. 16, 2023, Florida Supreme Court

More Blog Entries:

4 Ways Broward Truck Accidents Differ From Other Types of Crash Claims, Sept. 7, 2023, Broward Injury Lawyer Blog

Florida Truck Accident Statistics

Every day, operators of large trucks traversing our nation’s roads are the cause of serious crashes resulting in extensive property damage, serious injury, and tragic deaths. The term “large trucks” refers to medium or heavy trucks (excluding buses and motor homes) with a gross vehicle weight rating of 10,000+ pounds. This can include both commercial and non-commercial vehicles.

According to the National Safety Council, there were 5,700 large trucks involved in large crashes in 2021 – which represented an 18 percent increase from 2020 and a nearly 50 percent increase over the last decade. Part of the explanation for this rise is the fact that there are more large trucks on the road. But even so, the involvement rate per 100 million large truck miles has also increased – up 7 percent from 2020 and 22 percent over the last 10 years.

Big trucks are involved in 9 percent of all fatal crashes.

Specifically in Broward County, there were a total of 4,111 commercial vehicle crashes in 2021. These resulted in 820 injuries and 12 deaths. That’s just a snapshot of a single Florida county, according to the Florida Department of Highway Safety and Motor Vehicles. Statewide, according to the NHTSA, large trucks were involved in more than 350 traffic deaths in a single recent year.

Differences in Broward Truck Accident vs. Car Accident Claims

If you’re injured in a Broward truck accident, you may have grounds for filing a civil claim for financial compensation – same as you would if you were involved in a car accident. You’ll still need to prove negligence (and strongly dispute any allegations of contributory negligence), as well as the extent of your injuries to establish your right to collect damages. But there are a number of ways in which truck crash cases differ from your typical car accident claim.

Among them: more

Severity.

Broward truck accident injuries are almost assuredly going to be more serious than your typical car accident, by virtue of the simple fact that commercial trucks are so much larger/heavier than passenger cars (20-30x the size). Being involved in a crash with a passenger car is more likely than being involved in a truck accident – but you’re far more likely to suffer catastrophic injuries in the latter. That also means that the financial stakes are going to be higher – so you’re more likely to be met with a vigorous defense.

Insurance Coverage.

Commercial vehicles carry much more insurance than is required for passenger vehicle owners/drivers. While all Florida motorists must carry $10,000 in personal injury protection benefits (paid out to insured regardless of fault), most aren’t required to carry bodily injury liability coverage (though it’s a very good idea). Commercial trucks, meanwhile, generally need to carry $300,000 in bodily injury liability – minimum. Some may be required to carry more if they’re freight vehicles ($750,000), oil carriers ($1 million), or hazardous materials ($500,000).

Complexity.

It’s also possible that you’ll be dealing with more than one defendant/insurance company because truck accidents may have multiple defendants, including the driver, the truck owner (which may/may not be the employer of the driver), the supplier, and the carrier.

We also need to look carefully at the circumstances of the crash because that may go a long way toward establishing liability toward third parties. For example, did the trucking company employer/contractor schedule the driver for too many back-to-back shifts or unrealistic deadlines, leading to fatigue/distraction/speeding?

Cause.

In order to collect damages in a Broward truck accident case, we need to prove fault. And in order to figure out who’s to blame, we need to know what caused the crash. Sometimes there are multiple factors. Large trucks must be driven with extreme care because their size makes them harder to facilitate fast maneuvers, such as turning or stopping quickly. For this reason, commercial vehicle drivers are held to higher standards with regard to how much caution they’re expected to use. Going slightly over the speed limit, failing to check mirrors before switching lanes, driving with very little sleep – all of this can be the basis for finding fault.

But we also now as Broward truck accident lawyers must aggressively defend against allegations of contributory negligence, particularly since Florida law changed to allow for cases to be completely barred from any recovery altogether if it’s found a plaintiff is 50 percent or more at-fault.

Bottom line: Truck accident cases are inherently going to be more work than typical crash claims. It’s important to hire an injury lawyer with extensive experience in handling cases with extensive experience in successfully handling such high-stakes, complicated claims.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Large Trucks, Traffic Safety Facts, National Safety Council

More Blog Entries:

Will a Pre-Existing Injury Kill Your Fort Lauderdale Injury Claim? June 10, 2023, Broward Truck Accident Lawyer Blog

While every case is different, the most probable answer is: No.

That’s not to say it’s impossible. But the truth is, most Fort Lauderdale car accident cases never even become lawsuits – let alone make it all the way to trial.

Why is this? A few reasons include:

• The crash wasn’t that serious. Florida is a no-fault state when it comes to car accidents. All drivers are legally required to carry $10,000 in personal injury protection insurance coverage that will pay for a portion of medical bills and lost wages – regardless of who was at-fault. The whole point of this system is to reduce the number of car accident lawsuits, which have the potential to significantly clog up the courts. That doesn’t mean you can’t sue someone for negligence if you’re hurt in a Florida car accident. However, F.S. 627.737 requires plaintiffs to meet the serious injury threshold in order to do so. That means the crash resulted in one of the following: Significant and permanent loss of an important bodily function; Permanent injury within a reasonable degree of medical probability; Significant and permanent scarring or disfigurement; Death. But even without the serious injury threshold, it’s unlikely that many minor Florida car accident cases would go to trial because it wouldn’t be cost effective. Unless the financial compensation at stake is fairly high, going to the expense and trouble of a trial would make little sense.
• There may not be much in dispute. With many car accidents, it’s often clear who was primarily at-fault. Not always, of course, but if someone runs a red light or rear-ends another car or makes an abrupt lane change, liability for that crash is fairly easy to determine. Lawsuits – and trials – are more of a last resort. Claimants start by filing the insurance claim. You only sue when key issues – such as liability or the amount of damages – are disputed (usually by way of the insurance company refusing to pay what the claimant says they’re owed). Even if one party was clearly in the wrong, the defending insurer may argue the plaintiff was still partially responsible. This is called comparative fault. In Florida, F.S. 768.81 was recently amended to establish a system of modified comparative fault with a 51 percent bar. That means if you’re injured and you were partly at-fault for the crash, you can still collect damages from the other at-fault party – but only proportionate to their own liability. It’s a means of reducing the amount of money the insurer has to pay. If you’re more than 50 percent responsible for the crash, you can’t collect anything at all. If the question of comparative fault is fiercely contested, that can be one reason for litigation. Sometimes cases go to trial solely to determine how much money the plaintiff should receive. But often, an experienced injury lawyer can negotiate a fair payout without needing to resort to a lawsuit.
• Litigation – and especially trial – is expensive. Lawsuits – and especially trials – are costly. Many courts are backlogged, sometimes years. Pretty much every party involved wants to avoid trial if they can. The longer the case drags on, the more the bills pile up – medical invoices, attorney’s fees, expert witnesses, court fees, etc. Plus, both sides lose a degree of power by handing the case over to the discretion of the judge. Sometimes there’s no avoiding that – and it can turn out well for the plaintiff. But usually, both parties can reach a more mutually agreeable, cost-effective resolution if they can negotiate a fair settlement on their own – out-of-court. Ensuring that you DO get a fair settlement, though, requires the assistance of a Fort Lauderdale injury lawyer. The more serious the injuries you sustained, the more imperative it is to hire a lawyer to protect your rights and best interests. If that means a trial – so be it, and you should hire a lawyer who’s prepared for that possibility. However, if they can successfully negotiate a fair settlement without litigation, that’s often to your benefit.
• There’s no case for punitive damages. For the most part, damages awarded in Florida crash cases are compensatory. That means the person injured by another’s negligence is being compensated for the harm caused. Crash victims can claim compensatory damages for things like property loss, medical bills, lost wages, pain and suffering, emotional trauma, loss of consortium, etc. It’s only in rare situations that a plaintiff can sue punitive damages. Such damages compensate the claimant – but the intention is actually to punish the defendant for particularly egregious behavior, such as gross negligence or intentional misconduct. As noted in F.S. 768.72, you cannot pursue punitive damages in a Florida injury lawsuit without permission from the judge. The only time this really comes up in crash cases is when the other driver was impaired. The Florida Supreme Court particularly singled out DUI cases as uniquely qualified for punitive damages in the 1976 case of Ingram v. Pettit.

If you have been injured in a Fort Lauderdale car accident and aren’t sure whether you need a lawyer, we can help answer your questions in a free initial consultation. We’ll offer a frank assessment of the viability and value of a potential case based on the initial facts, and provide you with insight to help you make an informed decision about your next steps.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Ingram v. Pettit, Dec. 9, 1976, Florida Supreme Court

More Blog Entries:

Will a Pre-Existing Injury Kill Your Fort Lauderdale Injury Claim? June 10, 2023, Fort Lauderdale Car Accident Lawyer Blog

The controversial bill (House version HB 837 and Senate version SB 236) was fast-tracked through the legislature and signed by the governor within hours of it hitting his desk. It undercuts a laundry list of rights for personal injury plaintiffs – but those in Florida motorcycle accidents will suffer a particularly outsized impact.

Essentially, the measure imposes sweeping limitations on Florida lawsuits, most of those broadly and unapologetically shielding insurers and big businesses from payouts in injury cases – at the expense of those most seriously hurt. Many of the motorcyclists who turned up to protest, according to the Tallahassee Democrat, are “diehard, staunch DeSantis supporters, Trump supporters, and lifelong Republicans.” But as several of them noted, “This is bad for everyone.”

What exactly is the change motorcyclists are most upset about? The shift in the comparative fault standard.

As our Fort Lauderdale motorcycle accident lawyers can explain, for years under F.S. 768.81, Florida followed a system of pure comparative fault. Essentially, that means everyone is responsible for their own share of the fault. If you are hurt in a car accident and are 40 percent responsible for what happened, you can still hold the other driver accountable for their 60 percent share of the blame. In a pure comparative fault standard system, this fair share liability principal goes all the way to 99%/1%. So if a plaintiff is 99 percent liable and the defendant 1 percent, the plaintiff can still collect on that 1 percent in damages. (That’s not an ideal outcome, of course, and injury lawyers paid on a contingency fee basis were already less likely to take on weaker cases for this reason, as they are paid a portion of the damages ultimately paid out. This is one of the reasons the argument about “frivolous lawsuits” being problematic holds little water. It’s not easy to win – or get paid – for a Florida injury lawsuit that isn’t strong on its merits.)

This new law turns pure comparative fault on its head. Now, Florida has a standard of modified comparative fault with a 51 percent bar. This means that if the plaintiff is more than 50 percent responsible for their injuries, they can’t collect a dime from the other at-fault party. So if the other driver is 49 percent at-fault, they pay nothing. The financial burden rests solely with plaintiffs.

Why do motorcyclists care so much?

Because a motorcyclist can be faulted for their own head injuries if they don’t wear a helmet.more

Quick reminder: Helmets are not required under Florida law for operators under 21, and haven’t been since the year 2000.

So a possible – maybe even common – scenario in Florida motorcycle accident lawsuits from now on will be:

• Negligent driver crashes into motorcyclist.
• Motorcyclist is not wearing a helmet, and suffers major brain injuries.
• Motorcyclist (or their surviving spouse) sues the at-fault driver for causing the crash.
• Defendant attorneys argue that but-for the lack of a helmet, the motorcyclist’s head injuries wouldn’t be so catastrophic. And head injuries comprise the majority of damages sought.
• Jury finds motorcyclist is 51 percent liable for their injuries – mainly because they weren’t wearing a helmet, not because they caused the crash.
• Motorcyclist is compensated nothing.

Making matters worse is the fact that motorcyclists aren’t entitled to no-fault personal injury protection (PIP) insurance coverage that every other motorist is. PIP coverage offers insureds up to $10,000 in damages for personal injuries and lost wages in a crash – regardless of fault. But motorcyclists aren’t eligible for this coverage. So when we say they walk away with nothing: They’d truly walk away with nothing. (That is, if they can still walk at all.)

And what happens if they can’t work, can’t maintain health insurance, etc.? Taxpayers pick up the tab.

Said a representative of the Florida Justice Association, “This represents the largest transfer of money, rights, and power from Floridians to the insurance industry that we’ve ever seen.”

So while proponents maintain that this measure was necessary to address the “cottage industry of lawsuits,” the reality is that the entire bill (and there’s much more to it) benefits insurers while shutting out consumers – and particularly those individuals who have suffered the most substantial personal injuries, which often include motorcyclists.

All of this doesn’t mean it’s impossible to win Florida motorcycle accident cases from here on out – but it will be tougher. Having an experienced injury lawyer at your side will be an absolute imperative.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Why Florida bikers are leading the attack on lawsuit limits backed by DeSantis, Republicans, March 14, 2023, By John Kennedy, USA Today Network – Florida

More Blog Entries:

Florida Personal Injury Plaintiffs Now Face New Comparative Fault Standard, April 10, 2023, Fort Lauderdale Motorcycle Accident Lawyer Blog

The sheer volume of motorcycles in the Sunshine State is part of why the Florida motorcycle accident rate is so high. It consistently ranks at the top of the charts for motorcycle crashes, serious injuries, and deaths. According to the National Highway Traffic Safety Administration, Florida outranks every other state – even California, which has nearly double the population – for the highest number of motorcycle fatalities. There were 600 motorcycle accident deaths reported in Florida just in 2020 alone. California ranked No. 2 with 539. The lack of motorcycle awareness by other motorists as well as Florida’s high speed limits don’t help matters.

But there are several ways in which suing after a Florida motorcycle accident is different compared to other types of crash cases.

Here, our Broward motorcycle injury lawyers explain.

What Sets Motorcycle Accidents Apart From Other Crashes?

There are several unique factors with motorcycle accidents that alter the way personal injury lawyers and wrongful death attorneys approach these cases. A few of those include:more

• Greater injury severity. Right off the bat, motorcycle accidents are inherently more serious. NHTSA reports motorcyclists are 26 times more likely to die and 5 times more likely to be seriously injured in a traffic crash compared to occupants of passenger vehicles. The reason is pretty simple: People on motorcycles lack the physical protective barrier of an enclosed vehicle. What might be a fender bender between two cars becomes a direct hit to someone’s body when one is on a motorcycle. Motorcycle operators and their passengers are more likely by far to suffer catastrophic brain injuries and spinal cord injuries. The severity of the case in turn means the stakes in litigation are much higher. That may incline insurance companies to invest more time and resources into resisting a full and fair payout. Such cases usually require a fair amount of investigation (to learn the full extent of the impact/loss) and lengthy – sometimes tense – negotiations with insurers. When insurers take a hard line, it also means the case is more likely to go to trial. (The majority are ultimately settled before trial, but ideally a fair settlement can be reached before you ever get to the stage of needing to file a lawsuit.)
• Florida motorcyclists do not have personal injury protection (PIP) coverage. F.S. 627.736 requires motorists to carry no-fault PIP coverage, which provides up to $10,000 to the insured after a crash – regardless of who was at-fault. Crash victims are required to tap into this resource first. It’s only if/when they suffer from severe injuries, as defined in F.S. 627.737, that they can step outside that no-fault system and pursue damages against the at-fault driver. Motorcyclists, however, are excluded from PIP coverage requirements. Instead, they are required by F.S. 324.021 to carry insurance or proof of financial responsibility in minimum amounts of $10,000 for property damages, $10,000 for bodily injury/death of one person, and $20,000 for multiple people. If the claim is filed by a motorcycle passenger as a result of the operator’s negligence, this is likely the coverage they’d be making a claim on (as well as their own uninsured motorist/underinsured motorist coverage, if they have any). But if the Florida motorcycle accident injuries were the result of another driver’s negligence, the motorcyclist and/or passenger could directly pursue a claim against that other driver without having to first claim coverage through PIP. If the at-fault driver is uninsured or lacks enough coverage to sufficiently compensate the motorcyclist or passenger for their losses, they may file a claim with their own UM/UIM insurance carrier.
• Road conditions and vehicle maintenance. Poor road conditions like fog/brushfire smoke, heavy rain, fierce winds, debris, dust, etc. often play a role in Florida car accidents. However, motorcyclists are particularly vulnerable because of their smaller size and direct exposure to the environment. Of course, no one controls the weather, but if there is evidence the motorcycle was not properly maintained or equipped, there may be a finding of comparative fault. As stated in F.S. 768.81, one can be held partially responsible for their own personal injuries if they shared part of the blame for what happened. If the motorcycle was not in excellent working order and that played a role in causing the crash or exacerbating the plaintiff’s injuries, the plaintiff could be found comparatively at-fault. Fortunately in Florida, this doesn’t mean you’ve lost your case. It does, however, mean that your damage award will be proportionately reduced. (So if the person injured was 20% responsible, their monetary compensation will be reduced by 20%.) Keeping records to show you’ve made reasonable efforts to maintain your motorcycle may be important in this context.
• Failure to wear protective gear may be factored. Another potential issue with respect to comparative fault is failure to wear protective gear, such as helmets and protective eyewear. Helmets aren’t required for Florida motorcyclists over the age of 21 who carry at least $10,000 in medical benefits. But failure to do so could be used as a basis for a finding of comparative fault if one’s injuries were exacerbated by the decision not to wear one. (Similar outcomes are possible for people in cars who don’t wear seatbelts, which are required for all motor vehicle occupants.) That could mean a substantial reduction in the final damage award.
• Anti-biker bias. This is a subtle issue and not always a significant one, but certainly something we’ve had to contend with on occasion. Negative cultural stereotypes of motorcyclists as reckless and hot-tempered may influence witness statements to police. And while it’s rare for a case to go to trial, if it does, that same bias can be present among jurors. It’s important to have an advocate on your side who will fight to ensure you receive the compensation you rightly deserve.

If you are injured in a Broward motorcycle accident, our dedicated team of motorcycle accident lawyers can help you examine the value and viability of your case to seek financial compensation for the resulting losses.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

F.S. 316.211, Equipment for motorcycle and moped riders

As our Fort Lauderdale car accident lawyers can explain, brake checking is essentially a form of road rage. It can be done in response to someone following the brake-checker too closely, a practice called tailgating. Or it can simply be an aggressive driving tactic intended to annoy or scare the driver behind them for other reasons. The intention is rarely to cause a crash, but that’s a very real risk with brake-checking.

Brake checking is illegal. The Florida law on tailgating, F.S. 316.0895, explains that drivers can’t follow other motorists more closely than is reasonable and prudent. They must also have regard for the speed of traffic and road conditions. Sudden braking is a known potential on any road as hazards can quickly arise or conditions can abruptly change. That’s why the law requires drivers to maintain a reasonable distance from the car in front of them. However, if the driver in the lead intentionally or improperly slams on the brakes or stops, this can be used as evidence to effectively rebut the presumption of rear driver negligence in the event of a crash.

In the 2019 case of Fonger v. Nall, the Florida’s 5th District Court of Appeal noted that if left unrebutted, the presumption in rear-end collisions is that the rear-driver was negligent and at-fault. Rebutting the presumption requires proof of one of the following:

• A mechanical failure affecting the rear driver’s vehicle.
• A sudden stop by the lead driver.
• A sudden lane change by the lead driver.
• An illegal or improper stop by the lead driver.

Brake-checking would fall under the second or fourth point here.

As our Fort Lauderdale injury attorneys can explain, an abrupt stop in and of itself isn’t sufficient to rebut the presumption of rear driver negligence because every driver has a duty to remain alert and maintain a safe distance from other vehicles. That means rear drivers must be prepared to stop suddenly. However, if the lead driver’s sudden stop was abrupt, not in a place reasonably expected, and arbitrary (i.e., brake-checking), then the presumption may be rebutted.

The Florida Supreme Court held in the 2000 case of Eppler v. Tarmac America that if a driver slams on their brakes in bumper-to-bumper traffic without warning and for no reason, it’s irresponsible, dangerous, and not reasonably expected – and thus, an effective rebuttal of the presumption of rear driver negligence. However, if an abrupt stop happens where one might reasonably expect it, then the plaintiff (lead driver) can expect to have a directed verdict in their favor.

Even if one overcomes the rebuttable presumption, that doesn’t necessarily mean the rear driver wins. Florida is a comparative negligence state, per F.S. 768.81. That means both drivers could be found to have shared some of the fault for what happened, in which case damages will be proportionately reduced. For example, if the rear driver was following too closely and the lead driver brake-checked, leading to a crash, one might decide each shared 50 percent of the blame. In that case, the plaintiff would only be entitled to collect 50 percent of their total damages from the other driver.

If you’re injured in a Fort Lauderdale car accident, we can help you evaluate what your case may be worth and explore your legal options.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

F.S. 768.81, Florida Comparative Fault Statute

More Blog Entries:

Florida Wrongful Death Lawsuits Bring Closure, and a Safer Future, Aug. 1, 2022, Fort Lauderdale Injury Attorney Blog

As our Fort Lauderdale truck accident lawyers can explain, underride collision truck accidents occur when a passenger vehicle collides with a semi truck and is forced underneath the trailer. Whereas an average passenger vehicle is about 40 inches high, the lowest point of the average trailer is about 45 inches off the ground, meaning the smaller vehicle can get trapped underneath. During these crashes, the trailer or truck might “intrude” into the passenger compartment, which almost always leads to either severe injuries or death.

Recently, the National Highway Traffic Safety Administration (NHTSA) finalized a rule updating two Federal Motor Vehicle Safety Standards intended to bolster protections for drivers and passengers in rear underride crashes where the front end of the smaller vehicle crashes into the back of a larger vehicle (such as a semi truck) and slides under that vehicle.

Noting that truck underride crashes are often fatal, the new rule requires rear impact guards on trailers and semis with sufficient strength and energy absorption to protect occupants of passenger vehicles in multiple crash scenarios, keeping drivers safe and preventing deadly crashes. The final rule amends FMVSS No. 223 and FMVS No. 224 pertaining to rear impact guards and rear impact protection.

In addition to setting these new standards, the rule also requires more research on these crashes and establishes an advisory committee on underride protections. Rear impact guard designs are going to be more closely studied, with state tracking of underride crashes more systematic.more

According to the U.S. Government Accountability Office, there have been 219 fatal underride crashes involving large trucks reported each year. Although these represent less than 1 percent of all traffic deaths, we know this figure is likely an underrepresentation because there is a great deal of variability in state and local data collection on these crashes. Further, police officers responding to crash scenes may receive limited information about how to identify and record truck underride crashes. Another study by the NHTSA estimates annual truck underride deaths number around 500 annually, with injuries topping out at around 5,000.

Many Florida truck side underride crashes involve one of the following scenarios:

• A trucker was attempting a U-turn.
• A truck driver was backing out of a parking lot or driveway into a busy road.
• A truck driver is trying to cross or turn into a street or highway.

Rear underride crashes typically often involve one of the following:

• Dim, dirty, or inoperative tail lights.
• Failure to use reflective triangles or emergency hazards when truck is broken down.
• Poorly-marked trucks slowly entering a road or slowing down.

As longtime Fort Lauderdale car accident lawyers, we recognize that when it comes to personal injury claims, Florida truck accidents are trickier than most other types of traffic incidents. That’s firstly because trucks tend to cause greater harm, which means the cases are automatically higher stakes. But beyond that, trucking cases tend to be complicated by the fact that there are usually numerous defendants. The driver may not be employed by the carrier, which may be separate from the shipping company. There are layers of liability protection for each, though there should be higher insurance coverage for commercial drivers carrying larger/more dangerous loads.

If you have been injured in a Florida truck accident, our dedicated Broward injury attorneys are here to help.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Heavy-Vehicle Crash Data Collection And Analysis to Characterize Rear and Side Underride and Front Override in Fatal Truck Crashes, March 2013, NHTSA

Let’s start with the fact that with very few exceptions, seat belts are required by Florida law for all drivers and passengers in motor vehicles.

Florida’s no-fault car insurance law holds that all vehicle owners must carry personal injury protection (PIP) coverage that provides up to $10,000 in compensation for any insureds injured in a crash with that vehicle – regardless of who was at-fault in causing the crash. An injured person can step outside the state’s no-fault PIP system and pursue a claim for additional monetary damages against any at-fault parties IF their injuries meet the serious injury threshold. As set forth in F.S. 627.737, they must prove their injuries – caused by the crash for which the defendant is responsible – resulted in significant/permanent loss of a bodily function, permanent injury within a reasonable degree of medical probability, significant/permanent scarring/disfigurement or death.

It’s worth noting that Florida is recognized as a pure comparative fault state when it comes to negligence claims. Per F.S. 768.81, that means each person/entity can only be held legally responsible to pay for the damages they caused. So for example, if one suffers $100,000 in damages and Defendant A is responsible for 40 percent and Defendant B is responsible for 60 percent, Defendant A will be ordered to pay $40,000 and Defendant B will be ordered to pay $60,000.

But what if one of the people responsible for a plaintiff’s injuries is the plaintiff themself? That is what we call contributory negligence. By way of their own negligence, they contributed to their own injuries. So if you suffered $100,000 in damages – but are 20 percent responsible for your own injuries – the most you can expect to be awarded is $80,000.

That brings us to the seat belt defense.more

What is the Seat Belt Defense?

Because the law mandates that drivers and passengers wear seat belts, and because it’s well-established that failure to do so can significantly exacerbate the injuries one sustains in a Florida car accident, failure to wear one can be grounds to assert contributory negligence, thus reducing the total amount of financial compensation to which one is entitled. This is called the seat belt defense. It’s something that the insurance company (or the defendant, if the case proceeds to litigation) will bring up to reduce the overall damages to which the plaintiff is entitled.

The validity of the seat belt defense was affirmed in the 1996 Florida Supreme Court case of Ridley v. Safety Kleen Corp. That case concerned a 1992 intersection truck accident involving a pickup truck driven by plaintiff and a service truck driven by a cleaning company employee. The injured plaintiff sued the driver/his employer/truck owner for negligence. The defense raised the issue of plaintiff’s failure to wear a seat belt as an affirmative defense. The trial court denied a defense request to instruct the jury on Florida law requiring motorists to wear seat belts. At trial, the jury found the cleaning company 100 percent liable for the crash.

Upon appeal, Florida’s 1st District Court of Appeal reversed, finding the trial court substantially erred in refusing to give the defense instruction on the state’s seat belt law. The court reasoned that because the seat belt violation constituted evidence of negligence, the jury should have been adequately informed of it. The Florida Supreme Court backed the appeals court, finding that failure to wear a seat belt makes a plaintiff comparatively negligent, and their recoverable damages should be proportionally reduced accordingly.

Subsequent rulings have stipulated that in order to prevail with the seat belt defense, defendants in Florida car accident cases must prove three things:

1. The plaintiff did not use a seat belt that was both available and operational.
2. This failure to use a seat belt was not reasonable, given the circumstances.
3. The failure of the plaintiff to use a seat belt either caused or contributed significantly to plaintiff’s injuries.

Defense attorneys would be responsible for outlining the extent to which not wearing a seat belt caused the plaintiff’s injuries or financial losses. For instance, one’s failure to wear a seat belt may not cause a crash – but it could contribute to the severity of a head injury, particularly if the car occupant was ejected from the vehicle (a scenario far more likely when someone isn’t wearing a seat belt).

Because the seat belt defense can significantly alter the value of your Fort Lauderdale injury case, it’s imperative you work with an experienced civil injury lawyer, experienced in identifying and presenting relevant evidence in your favor.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Ridley v. Safety Kleen Corp., May 30, 1996, Florida Supreme Court

More Blog Entries:

Will PIP Cover All My Damages in a Fort Lauderdale Car Accident? May 15, 2022, Fort Lauderdale Car Accident Lawyer Blog

In a single recent year, more than 5,000 motorcyclists lost their lives while riding. The National Highway Traffic Safety Administration (NHTSA) reports Florida has more motorcycle fatalities than any other state – with 591 reported in a single recent year. That’s more than either California or Texas – both of which have substantially higher populations.

For survivors of motorcycle accidents and their loved ones, knowing the basic steps of a claims process following a serious crash can help ease some of the mental load that can feel insurmountable those first few days. As longtime Fort Lauderdale motorcycle accident attorneys, we can explain that these aren’t handled like your typical Florida car crash claim. There are unique considerations, and it’s worth taking a few moments to better understand them before beginning the process.

What Makes Florida Motorcycle Crashes Different From Others?

The reality is any car accident has the potential to turn your whole world on its axis. With motorcycle crashes, though, there are a few differences. Those include:

• Severity of injuries. Motorcycle operators and passengers lack the same level of protection as other motorists. Helmets aren’t required for adult motorcyclists in Florida, but even with them, riders don’t have the benefit of steel cage protective layer between them and the pavement. The severity of injuries in these cases means they tend to be inherently higher stakes.
• Motorcyclists cannot purchase personal injury protection (PIP) coverage. PIP coverage is required under Florida’s no-fault auto insurance law, extending up to $10,000 in compensation for medical expenses and lost wages, regardless of who was to blame. Without this, many motorcyclists tend to rely heavily on their own health insurance plans. But that won’t cover things like lost wages and other damages. This makes it all the more imperative to closely examine fault of all involved parties – and hold other drivers accountable. Claimants can step outside the no-fault system when they’ve meet the serious injury threshold, as spelled out in F.S. 627.737.

I’ve Been in a Motorcycle Accident – Now What?

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The aftermath of a crash is often stressful and chaotic. But the claims process will begin at the accident scene. The first priority, though, is securing prompt medical care for any who have been seriously hurt/are in immediate danger. (Examination by a doctor is a smart idea even if you have no obvious injuries. They may crop up later, and it will be tougher to prove a causal link if you don’t seek immediate medical attention.) If the police have not been contacted, that’s the next step. Remain on the scene – even if the other driver has fled. Document as much as possible – take photos, get the names/contact information of any witnesses, write down your own recollection.

Also, it is never too early to contact an injury lawyer. If you’re a spouse or parent, you may take this initiative on behalf of someone who is incapacitated as a result of the crash. This will help ensure you’re doing everything by the book, preserving the best possible chance at full and fair compensation.

The next step is to file the insurance claim. But while Florida no-fault crash claims can often be fairly easily resolved by filing a claim with one’s own insurer, motorcycle accident claims are likely to be a bit trickier. That’s because you’ve got to establish fault in order to collect from the other driver’s insurer. Insurance companies are not often quick to concede this point, if they can avoid it. Working with an injury attorney helps ensure you’re following all the proper steps and that you have the necessary evidence to (hopefully) avoid a drawn-out process that could entail litigation. If/when you do talk to the insurer, do not try to explain the accident, assign blame, admit any guilt/wrong=doing or discuss the details of your injuries. Some information will need to be provided to the insurer, but it’s best to strictly stick to the facts. Let your attorney do this, if you can help it.

Next, the insurance company may offer you a settlement – part for property damage and part for bodily injury. If the injuries sustained were serious, it’s wise to have an attorney look over the terms before signing anything. Once you sign this document, you may be forfeiting your right to pursue any further claims. You won’t be allowed to go back and try to negotiate for a higher settlement. That’s why this part is important.

If the insurer doesn’t agree to pay/or you decline the offer as unreasonable, the case may proceed to litigation (a lawsuit). This decision should only be made after careful review of the facts by your attorney. From there, settlement negotiations may continue all the way up until just before a verdict.

You generally have four years from the date of a crash to pursue a personal injury claim and two years in which to pursue a claim for wrongful death. Other factors could impact that timeline, so it’s best to talk to an injury lawyer if you have any questions.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Motorcycles, Traffic Safety Facts, September 2021, NHTSA

More Blog Entries:

Why Are There So Many Bicycle Accidents in South Florida? Feb. 15, 2022, Fort Lauderdale Motorcycle Accident Lawyer Blog

As our Fort Lauderdale personal injury lawyers can explain, this could impact how we as attorneys approach settlement negotiations.

The case that kickstarted the dispute in Gallardo v. Marstiller is a tragic one. A 13-year-old girl has been left in a persistent vegetative state after she was hit by a truck while getting off a school bus. She received a settlement of $800,000 against the owner of the truck, the driver, and the school board. (The cost of catastrophic injuries like this for someone so young can easily stretch into many millions of dollars over her lifetime.)

But then, the Florida Agency for Healthcare Administration imposed a lien on her settlement money, asserting that it was entitled to seize $300,000 of the money that was set aside for past and future medical expenses. The district court in Florida ruled against the state, arguing the federal Medicaid Act barred the state from being reimbursed for past paid medical expenses from the portion of the settlement that is set aside for future medical expenses. In the summer of 2020, the U.S. Court of Appeals for the 11th Circuit reversed in favor of the state’s action.

It was appealed to the U.S. Supreme Court, which heard oral arguments in January and is expected to rule in the coming months.

This was expected to be a fairly straightforward question of statutory interpretation on what state Medicaid programs should receive from third-party litigation – but the high court was surprisingly divided. Most justices appeared to agree that where the state had paid for injuries that the beneficiary suffered, it had a right to take from the part of the settlement/damages that is apportioned to past medical expenses. The problem arises, though, when the settlement reached for past medical expenses isn’t actually enough to repay Medicaid for what it paid. So then is the state also allowed to take part of the settlement set aside for future medical expenses?

Federal statutory guidance on this is a bit confusing. For starters, Medicaid is responsible for paying medical expenses. It does not loan money so they can be reimbursed later. So for the most part, the state isn’t allowed to recover its expenses from the person who was injured. But the game changes when a third-party was responsible for the injury and thus is liable to pay for the injured person’s expenses. In that instance, the state can seek reimbursement from that third party, per 42 USC 1396k(a)(1)(A). The way that statute is worded though, it might seem to allow for collection for past payments from a future medical expense fund. However, a bit further down, the provision seems to indicate a narrower definition.

The justices focused a lot of analysis on the statutory language. Several of their initial comments seeming to suggest that the language supports the state’s view that it can collect on all medical expense payouts, whether for past or future medical expenses, up to the amount the state has paid. However, as the discussion progressed, a number of the justices seemed to be dissatisfied with the broad implications of the state’s legal interpretation. By all accounts, Sotomayor appeared firmly against the state’s position, but how the other justices will decide is still up in the air.

Although it’s understood that the state has the right to subrogation and recovery of payments it’s already made, the broader interpretation could require personal injury lawyers representing Medicaid-covered clients to negotiate for higher reimbursement of damages dedicated to all medical expense reimbursements.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources: SCOTUS Hears Arguments on Florida Medicaid Reimbursement Dispute, Jan. 21, 2022, SCOTUS Blog More Blog Entries: What if the Driver Who Hit Me Was Not Insured?, Aug. 15, 2021, Fort Lauderdale Injury Lawyer Blog

Dump trucks carry heavy, uneven loads and are known to make frequent stops. They’re often out early in the morning, when streets are still dark. Drivers who work long hours, making them more prone to fatigued driving. All these issues lead to outsized danger when you’re dealing with a dump truck, a Class 8 vehicle that can weigh 33,000 pounds or more.

Dump Trucks and Garbage Trucks are Considered “Large Trucks”

Dump trucks and garbage trucks aren’t the same as the big rigs and 18-wheelers you spot barreling down the highway, but legally, they’re in the same category as other “large trucks.” Weight is the primary determining factor in terms of what is considered a “large truck” by the Federal Motor Carrier Safety Administration (FMCSA). Vehicles with a gross weight of 10,000 pounds or more is considered a “large vehicle.”

Per the FMCSA, Large Truck Traffic Safety Facts, more than 70 percent of the people who die in crashes involving large trucks are the people in the other vehicle. Nearly 160,000 people are injured in large truck accidents each year in the U.S. In three-fourths of deadly crashes involving large trucks, the truck involved weighed more than 26,000 pounds, placing them in the “heavy” large truck category.

Despite the massive size and weight, dump trucks are used to make repeated trips between construction sites, suppliers, and waste drop-off points. Repeated trips increase the potential for collisions. Drivers are often under significant pressure to get the job done, leading to dangerous actions behind the wheel, including speed, distraction, and aggressive driving.

Another significant danger with dump trucks is that in their rush, dump truck drivers sometimes travel with loads that are uncovered. This can result in debris falling off onto the road – and into the path of falling traffic. This creates a serious road hazard that puts others’ lives at risk.

Garbage trucks, meanwhile, are similar to dump trucks in that they are considered heavy vehicles, though as Class 7 vehicles, they tend to weigh in at slightly less, between 26,000 to 33,000 pounds. The disparity of weight and mass between a garbage truck and passenger vehicle, pedestrian or bicyclist makes a collision with one incredibly dangerous. Data from the FMCSA reports that in a single recent year, more than 100 garbage/refuse truck deaths and more than 1,400 injuries. A quarter of those killed were sanitation workers. An analysis by OSHA on garbage truck accidents reveals dozens of fatal or serious injuries among employees in one year.

Examples of Florida dump truck accidents just in the last few weeks include:

• A dump truck crash in Broward County on I-75 near Miramar Parkway lead to the truck overturning, spilling its contents onto the highway.
• A 67-year-old man died and two others were hospitalized with serious injuries in a Land O’ Lakes dump truck crash involving three vehicles on SR 52 in August. Troopers reported the truck driver didn’t see stopped traffic ahead of him until it was too late.
• Nearly a dozen people were injured in a Daytona Beach dump truck crash when the truck driver slammed into several vehicles and failed to stop at the scene of the crash.
• A 53-year-old Silver Springs man was killed in September after crashing into a dump truck.
• One person died and another suffered critical injuries in May when an SUV collided with a dump truck in Gainesville.
• A construction worker was struck and killed by a dump truck in Orlando in October.
• A North Fort Myers man was critically injured in October after his SUV collided with a dump truck in Cape Coral.
• A man died in January in a Tampa crash when a dump truck reportedly pulled in front of the victim’s pickup on I-75. Several others were injured.

Causes of Dump Truck Accidents and Garbage Truck Accidents

All commercial vehicle operators, including those steering garbage and dump trucks, must comply with federal and state training guidelines, pass a CDL knowledge and skills test and clear a physical fitness test. Despite all this, drivers of dump trucks and garbage trucks still cause Florida truck accidents. More often than not, crashes can be traced back to driver error. Alcohol and drug impairment are frequently cited, as are speeding, drowsy driving, distracted driving, and failure to adequately secure cargo.

If you’re injured in a Fort Lauderdale truck accident or have lost someone to a fatal truck accident, our experienced Broward injury lawyers can work to help you secure fair compensation for your losses.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Family, Cleveland Schools mourn loss of science teacher killed in dump truck accident, Nov. 5, 2021, By Kevin Freeman, FOX 8

Lots of us were raised to apologize anytime we think someone has been hurt or inconvenienced, even if we didn’t directly cause their pain. And it’s one thing to say you’re sorry if you accidentally bump into someone in the grocery store or step on their toe in a movie theater aisle. But offering a mea culpa following a Fort Lauderdale car accident can cause you problems down the road when it comes to determining legal responsibility for the crash.

To be clear, whatever spontaneous utterances you make at the scene of the crash won’t be the last word in the case. Liability (or fault) is going to be based on the totality of the evidence. But an apology from one of the drivers involved can be used as a piece of evidence.

Florida’s a No-Fault State, But Fault Still Matters

Despite efforts in the most recent legislative session, Florida remains a no-fault state when it comes to car insurance. What that means is that vehicle owners are required to carry personal injury protection (PIP) insurance that will cover up to $10,000 in damages, regardless of who is at-fault. However, $10,000 only goes so far in a serious crash.

If your injuries meet the criteria as outlined in F.S. 627.737, you can step outside that no-fault system and pursue damages against the at-fault driver(s). But fault will be a key element in your ability to collect. You have to prove the other driver was negligent in causing the crash or exacerbating your injuries. That means establishing the other driver owed a duty of care, breached that duty, and the breach of duty resulted in your damages.

Florida is a pure comparative fault state, which means you can still collect damages even if you partially share some of that blame. However, the amount of financial damages to which you are entitled will be reduced proportional to your fault. So if you are 20 percent liable and the other driver was 80 percent, you are only entitled to collect 80 percent of your total damages from that driver. You want to be able to collect 100 percent of your damages. Telling the other driver “sorry” at the scene of the accident (or at any point thereafter) is evidence that can be used against you to establish that you bore at least some responsibility for what happened. That can proportionately reduce the amount of damages that you are entitled to receive.

Refrain From All Apologies

Even if what you meant by, “I’m sorry” was, “sorry that you’re hurt” or, “sorry you’re upset” or, “sorry this happened,” it can easily be interpreted as, “I’m sorry for causing you this pain/inconvenience/etc.”

Bear in mind that insurers are in the business of protecting their bottom line. They will not be bothered by using your well-intentioned niceties against you if it means they can pay out less.

If at all possible after a crash, avoid apologizing. Instead, if you’re able, simply ask the other motorists/passengers if they are injured, and then do whatever you can to ensure help is on the way. This is the best way to demonstrate your care and concern for their welfare, while also side-stepping having your well-meaning words misconstrued.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Florida Insurance Requirements, FLHSMV

Florida Law Requires Vehicles Be Covered by Car Insurance

Before you registering a four-wheeled vehicle in Florida, you need to show proof of both personal injury protection (PIP) and property damage liability. PIP is going to cover 80 percent of what are considered “necessary and reasonable medical expenses” up to $10,000 – no matter who caused the crash. The property damage liability will cover damages to another person’s property if you or someone else cause a crash driving a vehicle insured by you.

You may notice that what is not required is bodily injury liability (unless you’re driving a taxi or commercial vehicle or if you’ve been convicted of a DUI). Bodily injury liability is the kind of coverage that will go to cover the expenses of others injured in a crash you cause.more

Likewise, uninsured/underinsured motorist (UM/UIM) coverage is not required either, though insurers are required to offer it to you. This is coverage that will extend to you if the person responsible for the crash does not have insurance or doesn’t have enough insurance to cover your losses. If you purchase UM/UIM, you will need to carry bodily injury liability coverage in the same amount. It’s highly advisable, especially in a state like Florida with so many uninsured drivers, to carry UM/UIM coverage.

Although the state doesn’t require bodily injury liability coverage, it does have a Financial Responsibility Law. This provision mandates that a person who is at-fault for a crash provide financial coverage of at least $10,000 per person and $20,000 per accident. So either you obtain insurance coverage or you post a bond. For this reason, most people who are insured do have at least that much bodily injury liability coverage.

But $10,000 – whether it’s from PIP or bodily injury liability coverage or even both – often isn’t enough to cover the losses sustained in a serious crash. This is why it’s so important to have UM/UIM coverage.

Your Options for Recovery

You have several options for financial recovery if the driver did not have car insurance (or didn’t have enough). Your first go-to will be your own PIP carrier. If the crash was serious, it’s unlikely this amount will cover your losses.

From there, you will take action against the other driver. They may not have the assets to personally compensate you, though as a debtor, the state could compel them to pay by:

• Garnishing their wages.
• Putting a lien on their non-homestead real estate.
• Seizing their personal property.
• Garnishing their bank account.

Beyond this, your UM/UIM coverage is your best bet. This is insurance coverage that you pay for that will cover you in the event the at-fault driver cannot. However, you still must establish that the other driver was at-fault. Florida is a pure comparative fault state, which means it’s possible your own insurer will try to argue that you were at least partially to blame to reduce your UM/UIM payout. The amount to which you are entitled can be reduced proportionate to your degree of fault. So if you were 20 percent at-fault, you would only be entitled to 80 percent of the total damages.

This area of law can quickly get complicated, and insurers are never working in your best interests. It’s important if you’re seriously hurt in a South Florida crash to contact an injury lawyer as soon as possible.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Florida Insurance Requirements, Florida Highway Safety and Motor Vehicles

Both the Florida House and Senate signed off on SB 54, a bill subject to substantial back-and-forth to close out the end of this legislative session.

Current law requires all vehicle owners to purchase PIP that covers $10,000 for their own medical, disability and funeral expenses if they’re hurt in a crash – regardless of fault. But as any Florida car accident attorney will tell you, $10,000 isn’t nearly enough to cover healthcare costs after most accidents. (The amount hasn’t changed since 1979.) Besides that, only $2,500 is available if injuries don’t require emergency treatment. Furthermore, PIP isn’t always as easy to obtain as it should be, and many injured motorists need assistance from an attorney to ensure they’re fairly compensated. The only way to step outside the no-fault system and pursue compensation from the at-fault driver is if one’s injuries meet or exceed the serious injury threshold, as outlined in F.S. 626.737.more

Under current law, bodily injury liability coverage isn’t required, though Florida’s financial responsibility law requires motorists be able to provide at least $20,000 in bodily injury liability or wrongful death damages. A fair number of drivers do carry it anyway, so not much may change for them.

If DeSantis signs SB 54, motorists would be required to purchase a minimum $25,000 per person and $50,000 per incident in bodily injury liability coverage. Although PIP would no longer be mandatory, insurers would be required to offer optional med-pay plans of $5,000 and $10,000 without a deductible.

Although some drivers may not mind carrying the small minimum level of insurance, there is always the risk is they could be sued personally if the expenses of those injured in a crash they caused exceed that amount. One in four drivers doesn’t maintain any insurance. These issues have caused many motorists to rely on uninsured/underinsured motorist coverage.

Said one lawmaker of the new bill: “You may not like every bit of this bill, but Florida’s got to do something about their car insurance.”

Gov. DeSantis has not yet indicated his position on the law.

Those opposed to the bill (primarily insurance industry advocates) say it will result in more Floridians being without car insurance because it will require additional coverage that people can’t afford in a state where rates are already sky-high. Yet the Florida Office of Insurance Regulation concluded just a few years ago that a shift to bodily injury coverage would result in a 6 percent savings for the average driver.

Whether costs will go up or down will likely depend on what kind of insurance you already have. If you already maintain some form of bodily injury liability coverage, your bill will probably be reduced because you’ll no longer need PIP. However if you weren’t maintaining bodily injury liability before, your bill may go up slightly. The trade-off is you’re less likely to be personally sued because your insurance may cover the full extent of the damages.

Ultimately, this bill would allow those injured in car accidents to collect damages from the insurers of those responsible.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Should you care if no-fault auto insurance gets repealed? April 19, 2021, By Ron Hurtibise, Sun-Sentinel

More Blog Entries:

Fort Lauderdale Car Accident Lawyers on Handling Crashes With Uninsured Drivers, Feb. 1, 2021, Fort Lauderdale Car Accident Attorney Blog

There are many theories about why this is, but the bottom line for us as Fort Lauderdale injury lawyers is that many accidents involve an uninsured driver. This poses some definite challenges in terms of how we approach an injury case.

You can still often recover damages if you’re injured in a crash with a driver who isn’t insured, but it will depend on your own coverage, the personal finances of the at-fault driver, who owns the vehicle that was driven and whether any third-parties were at-fault.

Car Insurance Laws in Florida

Florida requires residents to carry a minimum level of insurance if they want to be road-legal. This includes $10,000 in personal injury protection (PIP) and $10,000 in property damage liability coverage. You must have this before you can even register your car, and it must be maintained, whether you drive it regularly are not. Failure to show proof of insurance upon request by a law enforcement officer can result in a three-year license suspension, with a $500 reinstatement fee.

PIP coverage is part of the state’s no-fault insurance law. This coverage is intended to provide up to $10,000 for the policyholder and his/her passengers – regardless of who was at fault. This $10,000 covers a portion of medical expenses and lost wages. But $10,000 only goes so far in a serious crash. Florida does not require bodily injury liability coverage, but those who don’t have it are personally responsible to cover at least $20,000 in damages. Without insurance, that’s quite difficult.

If you have health insurance, it’s probable a good portion of your medical bills will be covered – regardless of the other driver’s insurance status.

If your injuries are serious, you can step outside of the no-fault system and pursue a bodily injury claim.

Options for Those Involved in Crashes With Uninsured Drivers

Motorists who are seriously injured in a crash caused by an uninsured driver always have the option of suing that driver personally. It’s wise to talk to a personal injury lawyer first to determine whether this is a measure worth pursuing. A negligent driver lacking adequate personal assets may make any lawsuit a wash – or even a loss. But we can look into a negotiated payment schedule that could be enforced by the court. Other options for collecting a personal injury debt may include:

• Garnishing the defendant’s wages or bank accounts.
• Imposing a lien on their non-homestead real estate.
• Seizing personal property.

His/her driver’s license could also be suspended until the debt is paid.

But if this is not an option or does not come close to covering the full extent of your losses, you have some options.

First, we need to make sure that there are no other liable defendants. Other drivers, vehicle parts manufacturers and others may be liable to provide coverage if they were in any way negligent in causing the crash or exacerbating your injuries.

We’ll also look carefully at who owns the car. Florida considers motor vehicles to be dangerous instrumentalities. If someone permits another to drive their vehicle, the owner can be held legally responsible for the negligence of the driver.

Finally, we’ll look at your own uninsured/underinsured motorist (UM/UIM) policy. These aren’t required in Florida, but they come standard with most insurance policies. Once you establish that the other driver was at-fault and that he/she does not have the means to cover the full extent of your injuries, you can seek payment from your UM/UIM insurer.

If you have questions about how to collect damages from the at-fault driver in your South Florida crash, our Fort Lauderdale car accident lawyers can help.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Driving without insurance in Florida, February 2021, Bankrate.com

First, it’s important to explain Florida’s no-fault system of auto insurance coverage and the minimum coverage rates.

The minimum coverage for an auto accident is $10,000 in personal injury protection (PIP) coverage and $10,000 for property damage liability. PIP is the coverage you buy for yourself, per F.S. 627.736, and ensures a portion of coverage for medical bills and lost wages stemming from a crash. This is paid to you (and/or your passengers) regardless of who was at-fault (assuming you didn’t crash intentionally and weren’t committing a felony at the time of the accident). Your passengers may tap into their own PIP, even if they weren’t driving. You may not be entitled to the full $10,000 in PIP if your injuries did not require immediate treatment.more

If your losses exceed that $10,000 or if your injuries meet the “serious injury threshold,” as outlined in F.S. 627.737, you can step outside of the state’s no-fault system and file a liability claim or personal injury lawsuit against the at-fault driver. You will be required to show that the driver was negligent in causing the crash and your injuries, and may need to counter claims of your own fault. (Shared fault won’t strip you of the opportunity to collect damages, but it may reduce the overall amount you can collect.)

Here’s the thing: Florida does not require people to purchase bodily injury liability insurance, which is what would cover others if you cause a crash that results in injury. (There are exceptions if the person has a previous DUI or is operating a taxi or commercial vehicle.) If the driver has uninsured/underinsured motorist (UM/UIM) coverage, then they will also have bodily injury liability coverage that will be at least that much. UM/UIM, which provides excess coverage in case an at-fault driver doesn’t have insurance or enough insurance to cover your damages, is not required in Florida, but highly recommended. So if you have your own UM/UIM policy, you’ll at least be covered up to that amount if the other driver can’t pay. But if the at-fault driver does have liability coverage, you’ll be obligated to pursue that first.

But let’s say that your injuries exceed the policy limits of any of these. As our Fort Lauderdale injury lawyers can explain, insurers aren’t likely to pay an amount that exceeds the designated policy limit. It may be possible to hold the at-fault driver personally liable for your damages and compel them to pay out-of-pocket. Whether this is a worthwhile pursuit will depend on whether the defendant personally has the assets and means to cover your losses.

Although Florida does not require drivers to carry bodily injury liability coverage, there is a Florida Financial Responsibility law that requires an at-fault driver to provide financial coverage of at least $10,000 per person and $20,000 per accident. If the “responsibility” is unmet, one can lose their driving privileges and a court could render a judgment against the to dock their pay, etc.

If your injuries exceed the amount of PIP, bodily injury liability and UM/UIM coverage available, there may be a few options for you to discuss with your lawyer. These include:

• Damages from multiple parties. This is sometimes an option in cases involving a commercial vehicle or Uber driver. It may also apply in cases where there were multiple drivers/vehicles involved or if the driver was drunk (Florida’s dram shop law offers a few options for relief under certain circumstances).
• Damages directly from the at-fault driver. The trouble with this option is many drivers who aren’t adequately insured also can’t afford to pay for damages. But it is an option worth looking into. Damages from the vehicle owner. Florida considers motor vehicles to be dangerous instrumentalities. That means the car owner can be deemed vicariously liable for damages, even if they weren’t driving or otherwise negligent.
• Umbrella policy. Umbrella insurance covers all damages in excess of what is provided by the primary auto insurance policy. So for instance, if you have $50,000 in damages and the driver has only $25,000 in bodily injury liability coverage, the umbrella insurance policy would pick up the remaining balance. (You could also collect from your own UM/UIM carrier.)
• Bad Faith insurance. If an insurance company denies a valid claim, refuses to negotiate a settlement or engages in a number of other bad faith business practices, you can take them to court for bad faith insurance and potentially win triple the value of your original claim. Such cases can be complex, and should only be taken on with the help of an experienced injury lawyer.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

F.S. 627.736, Florida PIP Law

More Blog Entries:

Florida Boating Accidents Cause Lasting Damage, Dec. 1, 2020, Fort Lauderdale Car Accident Lawyer Blog

In a single recent year, there were more than 500,000 crashes involving large trucks, including more than 4,500 that were fatal and 107,000 that resulted in injuries. According to the Federal Motor Carrier Safety Administration, the majority of those injured or killed in these collisions (82 percent) are the people in other vehicles. The number of fatal truck crashes per people in the U.S. has risen 27 percent since 2010.more

The most common causes in large truck accidents are:

• Fatigue.
• Distraction.
• Alcohol or drug use/impairment.
• Speeding.
• Speeding & overtaking.

Determining Fault in Florida Truck Accidents

The very first step in any Florida injury or wrongful death case is determining fault. This is true for any kind of crash. Florida is a no-fault state, meaning that your own personal injury protection (PIP) insurance will kick in first to cover up to $10,000 in damages. In a semi-truck accident, this is usually nowhere near enough to cover all of your losses. F.S. 627.737(2) allows those who have suffered serious, lasting injuries in traffic accidents to pursue claims against the at-fault driver(s) beyond what PIP offers.

Insurance companies may offer a settlement, but it’s important to talk to an experienced truck accident attorney before signing anything because your case could be worth much more than what’s being offered.

Usually the only type of collision wherein there is a presumption of liability is a rear-end collision. In fact there is a name for it: A rebuttable presumption. This means if the semi-truck rear-ends you, there is a presumption that the truck driver was liable. This presumption can be rebutted with evidence, but it’s difficult to overcome.

Beyond that, the nature of the investigation might be simple (where on the vehicle did the impact take place?). More often, though, it involves complex measurements, analyses and expert witness testimony. Surveillance footage (including red light cameras), vehicle instrument recordings, cell phone logs and other information may be used for the court to make a determination.

Truck accident cases often involve multiple defendants, including:

• The truck owner.
• The owner of the cargo.
• The driver (often an independent contractor/separate from the owner of the truck/carrier).
• The manufacturer of the truck.

Whereas insurers in regular car accident cases may not push for an investigation (it may be more time/expense than the claim is worth), semi-truck crash cases are typically investigated much more thoroughly because of what is at stake. Commercial trucking companies are required to maintain between $300,000 and $5 million in insurance coverage, depending on the type of cargo they’re hauling.

If the insurance companies involved find any reason to believe the injured claimant was at-fault, they could decline payment altogether, which could tack on more time. Many commercial truck insurers cover the cost of not only the injuries but the cargo that may have been lost. That could prove a substantial sum, so they’ll look for any reason to avoid paying a settlement.

The Extent of Your Injuries

The substantial injuries typically incurred in a truck accident can also impact the amount of time a case will take. Bigger trucks result in more substantial injuries. These must be carefully documented to ensure a fair settlement. But insurers will insist on closely examining these as well. If there is any evidence that some injuries were pre-existing or aren’t serious as one claims, insurers will not agree to pay what is being asked of them.

It should be noted that pre-existing injuries that are aggravated by the truck accident can still be covered.

Although many crash cases are settled out-of-court, truck accident cases may be more likely to go to trial given what is at stake. In some cases, the insurer will agree the truck driver was at-fault but will dispute the extent of the plaintiff’s losses/damages. Settling a Fort Lauderdale truck accident case can take years, and a trial will take even longer.

The good news is that you do not have to pay your injury lawyer upfront. Your attorney is paid on a contingency fee basis, meaning you do not pay attorneys’ fees unless/until you win.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Large Truck and Bus Crash Facts 2018, FMCSA

More Blog Entries:

South Florida Car Accident Compensation Could Change With Auto Insurance Reform, Jan. 2, 2020, Fort Lauderdale Truck Accident Lawyer Blog