This is totally legal and will be enforced by the courts – so long as the language contained therein is clear and unambiguous. However, if there is any ambiguity in these anti-stacking provisions, the courts will generally decline to apply them. This is important because it can mean doubling or sometimes even tripling the amount to which you are entitled.

Let’s look at one example of this, recently weighed by the Idaho Supreme Court. In Gearhart v. Mutual of Enumclaw Ins. Co., which involved two separate underinsured motorist policies that covered the same young man. The policies written by the same insurance company, but they were separate, one belonging to his mother and another to his father. The couple had previously divorced.

Defendant insurer insisted that anti-stacking language in each of the policies meant plaintiffs could not stack the policies, which were each worth $300,000. That meant the difference between $300,000 in benefits for the seriously injured young man and $600,000 in benefits (minus the $100,000 that had already been paid).

According to court records, plaintiff was in the passenger seat of a vehicle driven by a female teen friend. She was operating her brother’s vehicle. The girl was reportedly negligent and caused a crash. Plaintiff was seriously and permanently injured, suffering a severe brain injury. This resulted in permanent cognitive defects. For purposes of the action before the high court, it was not disputed that plaintiff’s damages as a result of the crash well exceed $600,000.

The insurance policy that covered the negligent driver and her brother (as owner of the vehicle) was exhausted. However, it was nowhere near enough to cover plaintiff’s damages. For this reason, both his parents separately pursued UIM benefits on behalf of their son, to help assist with the cost of his medical care.

Any time an insurer seeks to limit the coverage of the plan (which is well within the firm’s right), the burden is on the insurer to make sure the language used in such provisions is clear and precise. But in this case, the court had this advice to insurers: “Good luck to the average insurance buyer in deciphering the meaning of this provision.”

Specifically, the court was referring to a provision that states that when there is any other policy that applies to the same accident, the maximum limit of liability under all the policies will be the highest applicable limit under any one policy. “Huh?” the court collectively asked. Does this mean we add up all the policy limits and then whatever that sum is, that’s the highest amount payable under any single policy? The court posited that while it would question the advisability of this, but that’s what the language seems to indicate. More likely, the insurer meant that whatever the highest policy limit of those other policies, that’s the most that would be paid. But in this case, this ambiguity, which involves language that is the opposite of clear and precise, is not adequate to restrict coverage. The policy here may be stacked.

If you have a question about stacked coverage following your Fort Lauderdale car accident, we can help.

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

Additional Resources:

Gearhart v. Mutual of Enumclaw Ins. Co., June 27, 2016, Idaho Supreme Court

More Blog Entries:

State Farm Mut. Auto. Ins. Co. v. Jakubowicz – UIM Policy Ambiguous, Court Rules, Aug. 7, 2016, Fort Lauderdale Car Accident Attorney Blog

The claim has to be properly stated, served and filed. All the elements have to be there – on time – or else you risk forfeiting your right to assert damages, perhaps forever.

This was the unfortunate outcome for plaintiff in Sorenson v. Batchfelder, recently before the Wisconsin Supreme Court. Although this is an out-of-state case, the same general principles apply.

According to court records, plaintiff suffered personal injury and property damage as a result of a traffic accident allegedly caused by a state employee.

The state worker was operating a state vehicle and was on-the-job as part of his duties with the Department of Administration. The state worker had been rear-ended by another vehicle, causing him to rear-end plaintiff’s vehicle.

While the driver of that first vehicle certainly could be held to account for those actions, the state worker in this situation could also be held liable for following plaintiff to closely.

In seeking to file her personal injury lawsuit, she served the notice of claim on the attorney general by personal service at the AG’s main office in the state capitol.

Personal service was accepted by the state employee who acknowledged its receipt and it was then forwarded to the attorney general’s personal office at a different location. There, it was processed, endorsed by another state worker and then returned to plaintiff’s attorney’s office.

Following this, the state’s office of risk management issued a check for just $242 for property damage, indicating this was not an admission of liability.

Two years later, plaintiff filed a negligence lawsuit against the state worker, who responded with a motion to dismiss for improper service of notice of claim. He argued plaintiff had not satisfied the state law requirement mandating plaintiff’s to provide service by certified mail. Because she instead use personal service, she didn’t comply with the statute, he alleged.

The trial court disagreed with defendant and denied his motion to dismiss because the attorney general had received the notice of claim. The court ruled this was all that was required.

On appeal, however, the appellate court reversed. The appeals court noted the statute clearly says service must be accomplished by certified mail and that by personally serving the notice, she failed to strictly comply with the statute. Because the statute of limitations had already run on the claim, she no longer had time to proper serve the claim and refile the lawsuit.

Plaintiff’s only recourse at that point was to appeal to the Wisconsin Supreme Court, which granted review.

The state high court affirmed, holding that the language of the statute had a clear, plain meaning. That means it is unambiguous and easy to understand.

Plaintiff didn’t dispute the language or meaning of the statute. She did argue, however, that her actions fulfilled the intention of the statute by providing actual notice to the attorney general’s office. Further, she argued that to regard her personal service as not in compliance with the statute would have an absurd result – i.e., the dismissal of her otherwise viable claim.

However, the Wisconsin Supreme Court ruled that strict compliance with the literal adherence to the words was necessary in this case, and affirmed the appellate court’s decision to grant defendant’s motion to dismiss.

An experienced injury lawyer can help ensure that you don’t fall into these kinds of procedural traps. Only partial compliance with procedural statutes in injury cases is often not good enough.

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

Additional Resources:

Sorenson v. Batchfelder, May 12, 2016, Wisconsin Supreme Court

More Blog Entries:

Florida Construction Accident Investigated, April 25, 2016, Fort Lauderdale Injury Attorney Blog

Researchers with the Virginia Tech Transportation Institute, in a new paper published in the journal Proceedings of the National Academy of Sciences, shows that Americans are in some way distracted more than 50 percent of the time when they are behind the wheel. Of all the crashes the study authors observed, almost 70 percent involved some type of “observable” distraction. That means the actual number is probably even higher, as humans can be easily distracted even by their own thoughts.

But it gets worse: The U.S. used to be one of the safest place for motorists. Prior to the early aughts, we had fewer traffic deaths per mile traveled than most other developed countries. Today, we rank 17th out of 29.

The reason doesn’t take a rocket scientist. The primary culprit, researchers say, is the cell phone.

Distraction has always existed among drivers, of course. But now, it has become nearly impossible for some people to resist. The vibration of an incoming call or the tone of a text or social media alert practically demands a response. But at what cost?

For this study, which was funded by the U.S. government and unprecedented in scope, tracked more than 3,500 drivers, who agreed to allow researchers to affix cameras, sensors and radar on their vehicles. So these were even people who knew they were being watched every time they got in their vehicle for a full three years.

In all, study authors analyzed not only what happened just before a crash, but also at all points during each trip. In total, they collected more than 35 million miles of data.

When they JUST looked at cell phone use behind the wheel, they discovered:

• Drivers actually dialing a phone 0.14 percent of the time behind the wheel. This activity alone increased the risk of a crash by 12 times compared to drivers who were alert, sober and attentive.
• Drivers texting 1.91 percent of the time.These drivers were six times more likely to crash while engaging in this activity.
• Drivers talking on the phone 3.24 percent of the time. Doing so doubled the risk of a crash.
• Reaching for a cell phone numerous times during a trip, increasing their accident risk by five times.

But cell phones apparently weren’t the only risk. Among the other distractions observed:

• Talking with a teen or adult passenger – 14.6 percent of the time, increasing the crash risk factor by 1.4 times. (This is interesting because previously, the presence of an adult passenger was believed to have a positive effect on driving; these results suggest that’s not the case.)
• Driving while emotional. Although sadness/ crying/ emotional agitation was observed just 0.2 percent of the time, it increased the crash risk by an astonishing 1,000 percent.

Drivers were also seen applying makeup, eating and drinking non-alcoholic drinks. However, these did not seem to be as much of a risk as previously believed.

One of those that was not so much of a surprise was the risk of alcohol and drug impairment. Although intoxication was observed just 0.1 percent of the time (and keep in mind – this was only based on what researchers could observe), it increased the risk of a crash by 40 times.

Ultimately, what researchers concluded is that 4 million of the 11 million crashes that happen in the U.S. every year could be avoided if drivers eliminated potential distractions.

If you have been injured in a car accident caused by a distracted driver, we can help.

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

Additional Resources:

U.S. Drivers are Distracted More Than Half the Time They are Behind The Wheel, March 8, 2016, By Aarian Marshall, CityLab.com

More Blog Entries:

Florida Supreme Court: Insurers Can’t Unreasonably Delay, March 14, 2016, Fort Lauderdale Accident Lawyer Blog

In Fridman v. Safeco Ins. Co. of Ill., the court denied a bid by the insurer to assert it couldn’t have acted in bad faith because it did finally pay the insured. But bad faith by insurers can be revealed as much as much by the timing of the payment as the amount.

And in this case, the plaintiff – a man who was injured in a car accident by an underinsured driver – waited four full years to get a check from the insurance company. And even then, it came with settlement agreement language that effectively barred him from taking further action to collect anything further. He refused to accept it, and it was another six months before the insurer sent him another check with no such language.

But by that time, plaintiff was set on pursuing a bad faith insurance action. In Florida, people can file either a first- or third-party lawsuit against insurance companies for delaying or denying reasonable claims for benefits under the policy. If the court finds the insurer was liable for the underlying claim and acted in bad faith toward the insured, it can be made to pay triple damages. That’s not three times the policy limit – that’s three times the actual damages.

It’s supposed to serve as a powerful incentive for insurers to treat customers fairly. Unfortunately, many still try to get away with it, hoping the insured will simply settle just to get it over with. But Fort Lauderdale car accident lawyers know this case shows why fighting back can be worthwhile.

According to court records, plaintiff suffered injuries as a result of an auto accident caused by the negligence of an underinsured driver. After the accident, he filed a claim with his own insurer for the limits of his underinsured motorist policy.

By October 2008, plaintiff filed a Civil Remedy Notice as required by law, alleging the company failed to attempt a good faith settlement of his claim. He received no response within the statutory 60 days, so in April 2009, he filed a lawsuit against the company seeking to determine liability under the policy.

In February 2010, plaintiff filed a notice of proposed settlement for the policy limits of $50,000. However, the insurer didn’t respond and the court after 30 days deemed the settlement rejected.

Trial was set for March 2011. A month before the trial date, insurer submitted a check for $50,000, stating on the check it was a full and final settlement of all claims. Plaintiff rejected this offer and insurer requested a continuance, which trial court granted.

Six months later, before the rescheduled trial, insurer submitted a new check with no settlement language. However, it did contain a “confessed judgment,” arguing it should not be held in bad faith. Plaintiff rejected this, asserting a jury should decide how much the insurer should pay under a future bad faith claim.

At trial, jurors determined the other driver was 100 percent responsible for the crash and the insurer was liable to pay the $1 million in damages.

Insurer sought a new trial, which was denied. Insurer appealed, and the verdict was reversed, finding the confession of judgment should have settled the claim and made the UM claim moot.

The Florida Supreme Court, however, quashed that ruling. Ultimately, the court determined that the insured was entitled to a determination of liability and the full extent of his damages in the UM case before he was forced to pursue a first-party bad faith claim.

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

Additional Resources:

Fridman v. Safeco Ins. Co. of Ill., Feb. 25, 2016, Florida Supreme Court

More Blog Entries:

Researchers: Economic Improvement Tied to Uptick in Traffic Deaths, Feb. 10, 2016, Fort Lauderdale Accident Lawyer Blog

In Brown v. Davis, decedent was killed on a bridge crossing over the Mississippi River between Illinois and Missouri. His injuries occurred when a huge “log skidder” tractor fell off of a large truck and onto his vehicle.

The truck was driven by one defendant for his uncle, another defendant, who owned a logging company, also named as defendant. Plaintiff was decedent’s wife and mother of his two children. She alleged defendant’s were negligent because driver failed to exercise due caution, the owner of the vehicle failed to block oncoming traffic and the company was vicariously liable.more

According to court records, the crash happened in 2011. The nephew driving the vehicle was an independent contractor who was delivering the log skidder owned by his uncle’s company from Illinois to a buyer in Missouri.

The two-lane bridge over which he had to cross is 20-feet wide. The log skidder is 10 feet wide, so the vehicle had to cross the center line, encroaching on the opposite lane, to pass.

At trial, the local sheriff testified the practice had been that for wide loads to cross that bridge, the company had to call law enforcement and file a request for oncoming traffic to be stopped. The driver knew about this practice and so did his uncle. However, driver stated he preferred to “close” the bridge on his own, sending another driver out ahead to block the opposite lane. He testified he had crossed this bridge carrying similar large loads “thousands” of times before, often with his uncle with him.

His uncle would cross first in a pickup truck and close the lane until the large load was safely across. The pair had reportedly done this together “hundreds” of times. The uncle testified he sometimes called law enforcement and sometimes blocked traffic himself.

On this particular day, they decided to block traffic themselves. The uncle went ahead in his pickup truck. Nephew drove slowly onto the bridge and then pulled over onto the shoulder to wait for his uncle to tell him the path was clear. After he got the “all clear” phone call, he continued.

However, as soon as he crossed under the first superstructure, he spotted a car coming fast at him from the other direction. He tried to move over quickly, but instead struck the side of the bridge with the log skidder, causing it to rip loose from the trailer and fall onto the oncoming car. The impact killed the driver.

Although the uncle had stopped at one portion of the bridge, he admitted he would not have been able to stop oncoming traffic from a nearby motel parking lot and two gas stations that were closer. That’s where it’s believed decedent was traveling from.

After the jury verdict finding negligence and vicarious liability and awarding $3 million in damage, the uncle and his company appealed. (The driver did not appeal.)

Defendants argued the driver’s negligence in speeding broke the chain of causation. However, both the lower court and the appeals court disagreed, finding defendant’s failure to stop decedent’s car from driving onto the bridge in the first place was the primary cause of the truck accident, exacerbated by the negligent warning given to driver.

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

Additional Resources:

Brown v. Davis, Feb. 23, 2016, U.S. Court of Appeals for the Eighth Circuit

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Student Athlete Concussion Target of Fort Lauderdale Teen App, Feb. 20, 2016, Fort Lauderdale Car Accident Lawyer Blog

Now, given the precedent set by a recent settlement agreement in Minnesota, there may be another alternative for victims of drugged drivers: Action against the doctor or clinic where the driver received prescription medications.

Given the fact that Florida was not long ago labeled the “Oxy Express” and that abuse of prescription painkillers led to an epidemic of opioid addiction and overdose, it’s likely we might see similar cases crop up here.more

As media outlets reported late last month, the legal action was triggered by a fatal car crash in 2012 that involved one of the defendants’ patients. The woman had reportedly driven 100 miles from home to the clinic and received a prescription for take-home methadone (a powerful drug given for severe pain or to wean heroin addicts). She then stopped at a gas station and injected the medication before continuing on her drive. But she didn’t get far before she reportedly crossed the center line and crashed into a pickup with two workers inside. That vehicle was then forced into the path of an oncoming semi-truck. The two workers were killed.

Their families then filed a wrongful death lawsuit against the clinic, later adding the doctor as a defendant. Prior to that, the state board of medicine had reprimanded the doctor, concluding he was prescribing excessive quantities of controlled substances while failing to assess the risks to patients. He was also reprimanded for prescribing an opioid addiction drug to three times as many patients as he was allowed under federal guidelines. He was banned for one year from dispensing methadone or other controlled substances.

The driver, 28-year-old Vanessa Brigan, was convicted of two counts of criminal vehicular homicide and sentenced to six years in prison.

In the civil lawsuit, families received permission to seek punitive damages against the clinic and the case was set for trial when a settlement was reached.

That settlement included:

• $5.7 million clinic liability
• $2.5 million doctor liability

Of that total, 75 percent will go to the family of the worker who left behind a wife and children.

These amounts will be paid for by defendants’ respective insurance carriers.

As part of the agreement, both the doctor and the clinic concede to a judgment classifying them as negligent.

Although fewer people are dying of prescription pain medication overdoses in Florida than in years past, it’s still a serious problem. A recent study by the American Journal of Public Health revealed that after a series of state laws were passed that aimed to address the problem, the number of drug-related deaths and arrests fell.

Still, some researchers have called the effect “modest,” with the state reporting a 1.4 percent decline in the number of opioid prescriptions dispensed from 2010 to 2012.

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

Additional Resources:

Families get over $8M in precedent-setting case against methadone clinic, Jan. 26, 2016, By Ramona Marozas, NNCNOW.com

More Blog Entries:

Wrong-Way Accidents in Broward, Miami-Dade Target for Safety Advocates, Jan. 25, 2016, Fort Lauderdale Accident Attorney Blog

A full year in Fort Lauderdale with no one killed while crossing the street or riding a bicycle or driving a car. It seems like such a distant reality from the one we are in, where this city is No. 2 in the nation for its pedestrian fatality rate and No. 5 in the nation for its overall traffic fatality rate.

Still, it’s a dream the city’s transportation manager Debbie Griner insists is achievable. Griner recently told The Sun-Sentinel that their offices are committed to changing the perception that such incidents are simply “accidents,” facts of life over which people have no control. Rather, she says, these are incidents that can be avoided. Every single person who lives, works or visits this area has an opportunity to prevent traffic deaths, and Griner believes city leaders can empower them to do so.

The strategy involves:

• Redesigning and constructing “Complete Streets” that are safer and easier for all users;
• Ensuring and pedestrians are 0beying all applicable traffic laws;
• Enforcing strict penalties for traffic violations by motor vehicle operators.

All of this, Griner said, will over time, “Add up to zero.”

Fort Lauderdale is the first city in Florida to sign onto the Vision Zero plan, which was birthed in Sweden and has been implemented in New York City, Boston, San Franciso and and San Antonio. Dozens of others are considering it. So far, however, none in the Southeastern U.S. have done so – until now.

Last year in Florida, 133 bicyclists were killed, according to the National Highway Traffic Safety Administration (NHTSA). That was the second-highest number of fatalities in the nation (behind California) and the highest rate once you factor in population.

As far as pedestrians go, the NHTSA reports 4,735 were killed and 66,000 injured nationally just in 2013 alone. Of those deaths, 501 were in Florida, and accounted for 45 percent of the state’s overall traffic deaths.

In terms of overall traffic deaths, there were 2,407 in 2013. Our fatality rate per 100 million vehicle miles traveled is 1.25, higher than the national rate of 1.09, according to the federal agency.

The director of the Broward Metropolitan Planning Organization, which is partnering with the city on this, says the danger on local roads is worsening, particularly with the proliferation of smart phones in recent years. Drivers and pedestrians especially are consumed by those glowing screens, and it leads to tragedy when it occurs behind the wheel or when crossing a busy street.

The MPO has indicated its office and city staff will collaborate on a five-year plan to help study progress made on the initiative.

Educational and outreach efforts are already underway, including distribution of materials to pedestrians about safe street crossing.

In April, local law enforcement intends to increase its efforts to identify traffic law violators and will be giving out warnings all month. The following month, the city plans to drive home the point by issuing tickets to violators.

There is also a call to action for lasting physical change by redesigning roads, encouraging reduced traffic speed and adding and/or widening bicycle lanes and crosswalks.

Those backing the Vision Zero plan say that while it’s human to err, the city can design streets that are more forgiving of those mistakes, so in turn it’s less dangerous for the rest of us.

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

Additional Resources:

Fort Lauderdale embraces new vision: No deaths on the road, Dec. 27, 2015, By Larry Barszewski, Sun Sentinel

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Bicycle Accident Questions Posed on Driver Safety Tests, Jan. 3, 2015, Fort Lauderdale Bicycle Accident Lawyer Blog

The 40-year-old movie star was a front seat passenger in a rare 2005 Porsche Carrera GT, driven by professional racer friend Roger Rodas. The vehicle struck a lamppost and tree in suburban Los Angeles. The vehicle burst into flames shortly after impact, and Rodas and Walker, 40, were burned beyond recognition.

Although investigators with the county and state deduced that high speeds were likely the core cause of the crash, the lawsuit filed by Walker’s father asserts the vehicle lacked important safety features found not just on other high-end racing cars, but on the company’s basic models.

It was well-established even after the crash that this vehicle is different than most you will find on the road. For starters, it reaches a top speed of more than 208 mph. As the editor-in-chief at Car and Driver magazine once pointed out, the car was created specifically for racing, and it’s, “Not a car for novices.”

It is not an easy vehicle to drive, and there have been some who have commented this was by design. In fact, it is a key point of contention in pending litigation. Specifically, the vehicle is unusual because it lacks a feature known as electronic stability control. When it comes to mistakes, experts say, the vehicle is “unforgiving.” A vehicle that is equipped with electronic stability control can help correct slides or keep the driver from losing control. This vehicle changes directions very quickly and the throttle can allow for hyper-fast acceleration. Pro-racers describe the vehicle as “tricky.”

The National Highway Traffic Safety Administration (NHTSA) passed a measure that requires electronic stability control to be phased into standard equipment on all passenger vehicles under 10,000 pounds by no later than 2012 models. The car Walker was in was a 2005 model.

Walker’s father asserts the company’s failure to install this system meant that drivers and passengers were vulnerable to swerving actions in vehicles that were already hypersensitive. Further, plaintiff alleges the side-door reinforcements were weak, and the design of the seat belt was defective. Plaintiff asserts that the collective effect of these designs was that when the vehicle made impact, Walker’s torso was snapped backward with thousands of pounds of force. His pelvis and ribs were broken. He was trapped in a horizontal position, alive, until the vehicle caught fire about 90 seconds later.

The lawsuit also asserts the fire was preventable had the car manufacturer installed a breakaway fuel line that would have shut down the flow of fuel automatically.

Porsche, however, has countered that Walker’s death was caused by his own comparative fault. The celebrity was a knowledgeable passenger, well aware of the risks associated with driving this particular vehicle. Walker, who owned the car, altered it significantly, according to the manufacturer. The $450,000 vehicle was allegedly running with 9-year-old tires, Porsch alleges. This improper maintenance and reckless operation of the vehicle, the company opines, was the cause of the two deaths.

Both California, where this case was filed, and Florida, adhere to a pure comparative fault model, which allows plaintiff’s share of fault to reduce or offset defendant’s liability. However, a plaintiff’s own negligence will not bar the claim entirely. In fact, plaintiff who is majority at fault in a pure comparative fault model system can still collect damages from a defendant who shares at least some of the blame.

Although there aren’t likely to be many lawsuits involving this particular model – there are only 1,300 of them in existence – there are many vehicles that are not properly designed, and this can play a critical role in crash causation or failure to mitigate injuries. If you are injured in a serious traffic accident in Fort Lauderdale, call our attorneys to learn more about how we can help. This particular type of action, against the manufacturer of a product, is known as product liability, and it’s an aspect of any crash case that should be explored.

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

Additional Resources:

Porsche is Blaming Paul Walker for His Fatal Car Accident, Nov. 17, 2015, By Megan Friedman, Esquire.com

More Blog Entries:

Joerg v. State Farm – Florida Supreme Court Rules on Collateral Source Benefit Evidence, Dec. 2, 2015, Fort Lauderdale Car Accident Lawyer Blog