A very common situation that is seen in the law office is where someone has a significant injury but the person that causes the injury has a small insurance policy. Clients sometimes ask why their case is resolving for this small policy amount, even though they have an injury. Please accept this week’s blog entry as a basic discussion of this issue.

 

It is legal in Florida to drive without ANY bodily injury coverage and consequently, in these difficult economic times, many people are driving without this bodily injury coverage. More common yet are people that drive with the smallest bodily injury limits of $10,000 per person and $20,000 per accident. Further, other drivers have $25,000 per person, $50,000 per person, $100,000 per person, $250,000 per person and even greater limits of bodily injury. Of course, while $250,000 seems like a lot of insurance, if a client is unable to work or has significant medical expenses, even an amount like this can be too small for a particular injury case if someone has catastrophic injuries. Thus, the issue of not having enough insurance can be in smaller injury cases (with smaller policies) or more signficiant injury cases even with larger policies.

 

Generally, in a case where the injuries exceed the policy, the insurance company will, upon timely submited proof and documentation of the injuries, tender their insurance policy. The issue becomes: if this policy is less than what the value of the case is, what should a client do. In this example, I am assuming there is no other insurance to collect against. Obviously, if the client would accept the policy tender and sign a release, they would be releasing the person that caused the accident and thus could not do more. The recourse for the client would be to sue the person who caused the accident (and the owner of the car if diferent from the driver), and if they were to win a judgment that was greater than the policy, then they could try to collect from the other side.

 

Another issue that presents itself here is whether the person that you would be suing and attempting to collect against after trial is collectable. There is no way to guarantee whether you will be able to collect a judgment, particularly against an individual but there are some things you could look at. What is the cost of the home where they live and other basic indication of how much wealth, if any, of the person. There are “asset searches” but these commonly can only check for things of public record and may not be so accurate. Of course, while someone may be collectible today it does not mean they will be collectible later on if a judgment is obtained for greater than their insurance policy. Further, that person could try to evade collection attempt and so forth.

 

The point is that there are a lot of considerations when an insurance policy is tendered.

 

It is important to note that sometimes, if an insurance company does not offer its insurance limits and there has been a judicial finding that it was in “bad faith”, then there is a possibility that the client can seek “extracontractual” damages, i.e. they can recover their full judgment against the insurance company. This issue is a bit beyond the scope of this blog entry.

 

It is important to note that every case is unique and should be judged based on the specific facts of the case. The advice in this blog is intended to be general in nature and should not to be construed as specific advice for a case, as a minor difference in the facts of the case could change the result. Also, this blog is, as the web site suggests, based on Florida law and the laws of any other states or even another country could vary from Florida. At Drucker Law Offices, a free evaluation of automobile accident cases and all injury cases is offered. If you have been in an accident, please call for a free consultation at 561.483.9199 in Palm Beach County, 305.981.5363 in Miami-Dade County or 954.755.2120 in Broward County.

Yes, under a new law passed in March of 2023, if you are more than 50 percent at fault, you cannot recover any damages.  This concept of fault is called contributory negligence.

 

 

 

 

The 2024 Florida Statutes (including 2025 Special Session C)

Title XLV TORTS Chapter 768 NEGLIGENCE View Entire Chapter 1768.81 Comparative fault.— (1) DEFINITIONS.—As used in this section, the term: (a) “Accident” means the events and actions that relate to the incident as well as those events and actions that relate to the alleged defect or injuries, including enhanced injuries. (b) “Economic damages” means past lost income and future lost income reduced to present value; medical and funeral expenses; lost support and services; replacement value of lost personal property; loss of appraised fair market value of real property; costs of construction repairs, including labor, overhead, and profit; and any other economic loss that would not have occurred but for the injury giving rise to the cause of action. (c) “Negligence action” means, without limitation, a civil action for damages based upon a theory of negligence, strict liability, products liability, professional malpractice whether couched in terms of contract or tort, or breach of warranty and like theories. The substance of an action, not conclusory terms used by a party, determines whether an action is a negligence action. (d) “Products liability action” means a civil action based upon a theory of strict liability, negligence, breach of warranty, nuisance, or similar theories for damages caused by the manufacture, construction, design, formulation, installation, preparation, or assembly of a product. The term includes an action alleging that injuries received by a claimant in an accident were greater than the injuries the claimant would have received but for a defective product. The substance of an action, not the conclusory terms used by a party, determines whether an action is a products liability action. (2) EFFECT OF CONTRIBUTORY FAULT.—In a negligence action, contributory fault chargeable to the claimant diminishes proportionately the amount awarded as economic and noneconomic damages for an injury attributable to the claimant’s contributory fault, but does not bar recovery, subject to subsection (6). (3) APPORTIONMENT OF DAMAGES.—In a negligence action, the court shall enter judgment against each party liable on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability. (a)1. In order to allocate any or all fault to a nonparty, a defendant must affirmatively plead the fault of a nonparty and, absent a showing of good cause, identify the nonparty, if known, or describe the nonparty as specifically as practicable, either by motion or in the initial responsive pleading when defenses are first presented, subject to amendment any time before trial in accordance with the Florida Rules of Civil Procedure. 2. In order to allocate any or all fault to a nonparty and include the named or unnamed nonparty on the verdict form for purposes of apportioning damages, a defendant must prove at trial, by a preponderance of the evidence, the fault of the nonparty in causing the plaintiff’s injuries. (b) In a products liability action alleging that injuries received by a claimant in an accident were enhanced by a defective product, the trier of fact shall consider the fault of all persons who contributed to the accident when apportioning fault between or among them. The jury shall be appropriately instructed by the trial judge on the apportionment of fault in products liability actions where there are allegations that the injuries received by the claimant in an accident were enhanced by a defective product. The rules of evidence apply to these actions. (4) APPLICABILITY.—This section does not apply to any action brought by any person to recover actual economic damages resulting from pollution, to any action based upon an intentional tort, or to any cause of action as to which application of the doctrine of joint and several liability is specifically provided by chapter 403, chapter 498, chapter 517, chapter 542, or chapter 895. (5) MEDICAL MALPRACTICE.—Notwithstanding anything in law to the contrary, in an action for damages for personal injury or wrongful death arising out of medical malpractice, whether in contract or tort, if an apportionment of damages pursuant to this section is attributed to a teaching hospital as defined in s. 408.07, the court shall enter judgment against the teaching hospital on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability. (6) GREATER PERCENTAGE OF FAULT.—In a negligence action to which this section applies, any party found to be greater than 50 percent at fault for his or her own harm may not recover any damages. This subsection does not apply to an action for damages for personal injury or wrongful death arising out of medical negligence pursuant to chapter 766. History.—ss. 60, 65, ch. 86-160; s. 5, ch. 87-50; s. 79, ch. 88-1; s. 43, ch. 88-277; s. 1, ch. 88-335; s. 38, ch. 91-110; s. 104, ch. 92-33; s. 27, ch. 99-225; s. 1, ch. 2006-6; s. 1, ch. 2011-215; s. 9, ch. 2023-15.