Question From Reader Rachel About Inadequate Insurance By Defendant

A reader identifying herself as “Rachel” posed the following question in a comment on my “About” page (where no one would probably see it, so I decided to make an article out of it). Just to let you all know in advance, I’m not going to make a habit of answering such lengthy or specific questions, so if anyone else posts a question like this, prepare for disappointment. Short questions about topics covered in my articles and posted as comments are fine, but I named my website “I Do Not Want to Be Your Lawyer” for a reason. That being said, on to Rachel’s question:

Florida. Auto accident, at fault party cited 100% fault. Victim, in no fault state ( FL) with severe injuries has only 10K PIP and 5K med pay. The at fault party’s policy limits are 50K, the injured victim’s UM is 25K.

The injured is elderly, while not a direct Medicare recipient, they have a health plan ( advantage type) that Medicare recipients are able to get, by being Medicare eligible, but again not a direct recipient of Medicare ( the laws on subrogation of this are sketchy)

The injured victim was first seeing a chiropractor for 2.5 months and only XRAY’s of cervical and lumbar spine performed, yet the XRAY results mentioned severe cervical disc space narrowing, as well as particular language of lumbar disc herniations, as did the neurotesting done at same chiropractic facility.

Early report stated they would send patient for further testing ( MRI ) if problems persisted, this never happened. Family got involved and demanded MRI. The severity of injury as reported on Cervical MRI should be clear to the adjusters, given they claim medical literacy of serious injury and MRI’s.

A demand for policy limits was made after MRI, before a surgical consult was obtained. The carrier refused and repeatedly offered 3K ( less then the medical bills, granted at the time were only 6K, however, as said the MRI dictated severe injury of the cervical spine, herniated torn discs, deforming spinal cord, causing severe central central cervical stenosis, also stenosis of several foramina regions.

The carrier denied the MRI and medical evidence suggested severe cervical spine injury and then offered 10K. ( past the demand date ) The carrier acted in bad faith on many occasions, prior to this ( rejecting a Fl General Durable POA for the elderly accident victim ) Adjuster stated his legal dept stated a family member could not use this to discuss and settle the injured victims claim dispute ( which was finally resolved, mysteriously) Guess they realized the legal document is in FACT all needed.

The adjuster also told the elderly victim the pain and disability form MVA were the result of their AGE and not injuries from the MVA, in addition, went a step further and claimed to have medical records in hand that showed prior injury, because of this fraud the claimant demanded proof, which they could never produce, hence the claimant and injured victim had NEVER had any history of neck or back injury in their life, the adjuster was abusing the elderly victim at every angle possible.

The adjuster concealed the true policy limits of their insureds policy, this is known because the demand was made for 25K ( what the elderly injured victim thought the document said and when the POA demanded numerous times the policy limits in amount of what was thought to be 25K the adjuster NEVER corrected this and continued to lead all parties into believing the policy limits were 25K and not the true limit of 50K.

This has all been well established and documented for proof, and the POA has literally begged the carrier to act in good faith.

The injured claimant has finally gotten the neuro surgery consult and learned there is in fact Myleopathy and that ANY fall, bump maybe even sneeze could cause paralysis. The 3 level cervical fusion surgery is est to be 100K give or take.

The inured was elderly, but full time employed, now working VERY little just to eat and keep their job ) its the only way for them to survive, they work independent contractor ( as errand runner and driver, if they refuse all work given they will lose job completely, so they are forced to attempt some errands and drives because of the threat as well as needing some income to EAT and help supplement a small SS check monthly.

The claimant is unable to do anything as they normally did due to myleopathy ( used to golf 3 to 4 times a week, no longer able to do that at all, used to bowl, dance socialize) while driving a couple hours a day and running an errand here or there, that is killing the injured, they are laid up in bed suffering pain and obvious disability.

Given the injured needs a 100K surgery, given the total of policy limits ( both carrier and UM ) do not even total the cost of surgery. Given the severely injured claimant will have an obvious long recovery and no guarantee the surgery will repair the damage already done to the spinal cord…and obvious impact on future earnings, and given the MEDICARE subrogation laws….

This elderly severely injured claimant will be ruined not only physically, but financially.

Is this what the severely injured claimant deserves?

I realize Medicare or insurance plans want medical monies paid back they have had to forfeit, why should they PAY because neither policy affords the cost of even surgery, but what about the poor victim, through no fault of their own, having to live their last days in pain and severe disability, not able to work to even supplement the small SS check to eat, and live and ends up like this.

Is there a possibility to request full policy limits for pain, suffering, future lost wages for both policies totaling 75K, for the pain, suffering and future lost wages and be able to use their medicare ( ADVANTAGE PLAN ) for the surgery itself, which would secure the policy limits to enable the claimant food for the rest of their life and supplement income no they are no longer able to gain by working?

Well, Rachel, you said a mouthful here. To start with, I take it you have some connection to the legal field due to the terminology you’ve used (correctly). I can understand why the plaintiff would try to deal with this matter without hiring a lawyer, as the last thing you need when facing inadequate insurance coverage is a lawyer taking 33 1/3 – 40% of that coverage. However, once the tortfeasor’s carrier refused to tender its limits, the plaintiff should have hired an attorney, as she now has a potential bad faith claim that needs to be explored. This isn’t something a non-lawyer should attempt.

Also, you need to be very careful in Florida when dealing with UM coverage. Before settling with the tortfeasor’s liability carrier, you need to obtain permission from the UM carrier. I know this sounds odd, but this is required by statute so that the UM carrier can preserve its subrogation rights against the tortfeasor (in the event the tortfeasor might be able to pay an excess judgment). If the UM carrier refuses to give this permission, it doesn’t really affect the plaintiff, as the UM carrier must pay the plaintiff the amount of the tortfeasor’s liability insurance to make this refusal. In the case you describe, you’d send a letter to the UM carrier asking permission to accept the $50,000.00 BI limits, and the UM carrier can do one of two things: (1) send you a letter saying it’s o.k. to accept the limits and release the tortfeasor or (2) send you a letter saying you cannot release the tortfeasor along with a check for $50,000.00. Failure to obtain this permission from the UM carrier before accepting the BI limits will likely void the plaintiff’s UM coverage.

While this isn’t really an issue in the case you describe, as the limits were never tendered by the liability insurer, it’s just a warning as to a potential “trap for the unwary” a plaintiff can fall into if she doesn’t have a lawyer when settling her own case. On to your more specific questions:

Settlement tip

Is this what a severely injured claimant deserves? Obviously not, but unfortunately the only real protection one has against an underinsured driver is adequate UM insurance. In this case, the plaintiff only had $25,000.00 in UM. This is fine for fender benders, but not nearly enough for any serious injury. I’m not trying to kick your plaintiff while she’s down, but I will use her as a cautionary tale for other readers who may not have adequate UM insurance themselves.

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As to your more relevant question, which I read as “Can the plaintiff get the $75k in BI and UM, use the medicare advantage (MA) to have her surgery, and not give any of the $75k to the medicare advantage plan?” If this were a pure medicare case, I’d say absolutely not. With medicare, you’d have to set aside a portion of the settlement to reimburse medicare for future medical care (called a “medicare set-aside”). So you can’t avoid paying medicare by postponing a surgery until after the settlement. With medicare advantage, I’m not so sure (never had it come up). If you can get the insurers to pay limits and settle with the MA plan for past medicals before your plaintiff gets the surgery, this may be possible (I’d definitely hire a lawyer to make that determination, though).

If you’re asking whether you can settle the claim for policy limits and avoid repaying MA by cleverly not asking for any medical expenses in your demand, you wouldn’t be the first to try. Even if you can say that all of the settlement money was paid for things other than medical expenses, you’d still have to give the tortfeasor a full release of all claims, which would include medical expenses. In short, I doubt that there is a court out there that would support a characterization of the settlement as being for “other than medical expenses” when you are giving the defendant a full release. So, while I appreciate what you’re trying to do, I don’t think it will work. I think you’d have a better shot with the tactic of delaying the surgery until after you repay MA (it’s not like they can demand you pay in advance for a surgery the plaintiff may decide to never have).

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I hope this addresses your question. If not, you can comment on this article (not on my About page please). If any readers have any experience with this situation involving a Medicare Advantage plan and subrogation claim, I’d encourage you to comment as well.

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33 Responses to Question From Reader Rachel About Inadequate Insurance By Defendant

  1. Rachel says:

    Thank you in advance for the obvious time you took in reading, as well as understanding the specific issues that needed addressed.

    I do hope someone may chime in on past experience pertaining to the MEDICARE LIEN issues and laws pursuant, as opposed to an indirect Medicare recipient having opted of Medicare and obtaining an HMO through one of the ADVANTAGE plans.

    Its too bad your website is specific to ” I do NOT want to be your lawyer ” because, you would obviously be an excellent choice for legal representation given the time you took in reading what I presented, as well as your understanding and honing in specifically to areas needing addressed.

    Your having done just that, ( all the above) leaves me little to comment on, but again to say a huge thank you, and for generalities would like to say If the situation did not involve a medicare recipient and because of this, obviously the age of the claimant /recipient means that a long litigation process, would do nothing for the claimant at this point, but cause further suffering at this stage in life, however, of the age were not of issue, I would certainly assist the family member in pursuing a judgment against the at fault party, which in turn would force the carrier to ANSWER for all the bad faith claim practice’s that have ensued ( deception, fraud and more ).

    The elderly family member who was not long ago full of life and in great health, has had their world turned upside down, in every form and fashion as is excepted from a severe injury, in addition, most likely their life will now be shortened as a direct result of these serious injuries. Obtaining a huge monetary verdict for the injured family member would be a great lesson for the carrier, because eventually that huge monetary judgment/verdict would have to be paid by the carrier, however, the injured claimant really needs to be able to live the rest of their days knowing they will be able to eat and possible pay the light bill, mortgage and such, as there is no need of a pile of money for anything else after being injured in this way.

    My hope is to do the right thing for the family member, and their best interest, and in securing them with at least peace of mind that they will be able to eat, however, the MEDICARE issue is of great concern.

    Right now there is NO Medicare Advantage LIEN, hence there was no deductible on the PIP, and the MED PAY LIEN is the at fault party carriers lien.

    I was hoping the claimant could settle both policies for limits, and I understand your statements regarding ” stipulations in release for everything but MEDICAL expense”

    Of course, not knowing the extent of injury, and there not being a way to configure (pain, suffering, past, present, future, but on another level, adding past, present, future wage loss ) for a spinal cord injury and the settlement totaling 75K to account for that, sounds reasonable. Of course its just my opinion, and don’t know what a Judge may determine would be reasonable, its a crap shoot, if it became a legal matter later.

    If anything I have said strikes a further thought, idea or other, please think aloud here in writing. I am fighting this for my father with everything I have in me and its taking a toll, but nothing like what he’s enduring.

    One never really understands insurance till they are faced with the worst and so your statements regarding making sure you have enough UM of your own should the worst happen are 100% true.

    Thanks again, so very much, you are awesome!

  2. Rachel says:

    I hope you may answer to this. What is the law concerning settling a UM ( under insured ) claim with your own carrier ( UM ) prior to the 3rd party ( at fault parties insured carrier )

    IF the injured UM carrier agrees to settle for policy limit of 25K, before ANY 3rd party settlement ( the at fault parties carrier ) will that null and void future rights to obtaining policy limits from the at fault parties carrier at a future date.

    The best scenario would be if both policies recognized the severe injury, in addition to the combined limits being insufficient for the claimant, however, its not the case and should the claimants own UM carrier recognize the insufficiency and tender the full UM limit of 25K, will that BAR the injured claimant from receiving policy limits from 3rd party claim in the future. Hope I have explained properly.

    Thank you for any and all thoughts.

    • fl_litig8r says:

      I understand your question, and I assume it’s in response to my warning about settling with the BI carrier without the UM carrier’s prior approval. That warning doesn’t apply to the scenario you describe (because the statute was meant to protect the subrogation rights of the UM carrier against the tortfeasor, a right the liability carrier would not have against a UM carrier). In short, you can settle with the UM carrier without any risk to the claim against the BI carrier, with one huge warning.

      The UM carrier will want the plaintiff to sign a release. It will likely be worded very broadly to release practically everyone. Make sure the release specifically states that “Specifically excluded from this release is any claim or claims [insert the language they use for the releasing party, usually “releasors” or “the releasing parties” have against [insert the name of both the driver and owner of the tortfeasor’s vehicle (if they are separate people)], their insurers or other third parties that may be responsible for paying damages on behalf of [tortfeasor’s and owner’s names again] due to the subject accident.” If the tortfeasor’s BI carrier was the same as the plaintiff’s UM carrier (which I’m assuming it isn’t because one is paying and one isn’t), you’d need to make sure that the release only releases the insurer as to UM benefits owed. The UM carrier should have no problem with this language being inserted into its form release. They may even tell you to handwrite it in, which is fine. Just make sure the plaintiff includes his initials near the addition.

      Also, make sure that you are sure that you are getting the full UM. If the UM is coverage is “stacked”, you multiply the coverage by the numbers of cars on the policy (which will all have stacked UM). So, if the plaintiff has 2 cars with stacked UM of $25,000.00, the total coverage for each accident would be $50,000.00. If the plaintiff was driving a vehicle owned by someone else, and that person also has UM, you could go after that coverage as well. There’s a lot of “i” dotting and “t” crossing when it comes to settling a claim.

      I’d still make sure the UM carrier tells you in writing that it has given you permission to settle with the BI carrier, so if you wind up going after the BI carrier for bad faith, you don’t have the UM carrier tagging along on your coattails to get its money back from the bad faith suit.

      tl;dr version: It’s o.k. to settle with UM carrier. Just be careful not to release the tortfeasor or BI carrier in the UM carrier’s settlement release. Also, be sure you know all potential UM insurers and their limits.

  3. Rachel says:

    Thank you again for such sound direction! You are AWESOME AS SAID!

  4. Laura says:

    Can you tell me – if you know what the defense side is contending – can you avoid trial by taking a polygraph test and is it regarded as credible?

    Thank you in advance –

    Laura

  5. Laura says:

    I wonder why the attorney seemed happy I would take one? He is trying to keep this out of court and since I know I would pass it – it would be a way to save on deposing a lot of witnesses who evidently look like they are lying currently.

    • fl_litig8r says:

      He might just want to use it for settlement purposes — to convince the other side that you’re telling the truth so they’ll be more inclined to settle. Of course, if the other side only cares about what can be proven in court it won’t help much.

  6. Laura says:

    Yep, I think that’s what he wants. He doesn’t want to go to court, and truth be told – I don’t think the other side does either. It’s a Employer case and I don’t think they want current employees or former employees along with this manager’s spouse to see the actions of a manager. If it were to go to trial all this testimony becomes discoverable by the public. Just not to their advantage.

  7. Laura says:

    The polygraph is my idea! The other side has a slew of witnesses lying for this manager. It’s one way to stop the lying and get them to settle. Even though – I really don’t care about the money. I want him stopped. 🙂

    • fl_litig8r says:

      I think you may be optimistic about it stopping the lies, but assuming it goes well, it should create some doubt on the part of those with settlement authority. Of course, I wouldn’t disclose that you’re taking a polygraph until it’s over and you’ve passed. Polygraphs aren’t perfect (which is why they’re not admissible).

  8. Laura says:

    Thank you for your comments. Your right about trying to stop the lies coming from the other side. What an eye opener this has been. It can be ruthless because people lie either to protect their jobs or save face. Sad really!

    Thank you again for your comments. I’ll let you know how I did!

    Laura

  9. Anita says:

    This case is small potatoes compared to most. But I am so angry with the insurance company over their handling of this case.

    I was sitting stopped at a red light.. the light turned green but I could not move because of backed up traffic. I was rear ended… the lady even got ticketed for failure to maintain control of her vehicle. She admitted to me as soon as she got out of her car that she never saw me and never had time to even hit her brakes. She said she was looking down reaching for her cup from the cup holder.

    My injuries were moderate, head, neck and back pain. I did have severe pain for a month or so. I went for physical therapy which was difficult and painful. My medical bills were only around $5,000 at most. I had the expense of a rental car… out of pocket maybe $800. I suffered pain for about 3 months and still from time to time have some neck and back pain. I do not work so I was not out any income.

    I drive a car that is a collectors type car.. it is a special edition, last year they were made, 02 Trans Am WS6 with less than 40,000 miles on it. It was in mint condition.

    When the insurance adjuster gave the estimate for repairs to my car the repair shop said there was no way they could fix the car for that amount and turned down the work. We called 2 other repair centers and were turned down by them as well. Their reason was because of the original condition of my car it would be difficult to repair to their satisfaction AND there would be no way they could do it for the amount the insurance company was offering. My attorney haggled back and forth with the insurance company. After my car sat for one month the insurance company called me to say they would no longer pay for a rental car until work began on my car. My attorney suggested I turn it over to my insurance company so it would get fixed properly. So I did. The repairs ended up being over $3,500 more than the original estimate by her ins. co. My insurance company was able to settle with the defendants insurance company and recovered some if not all of the money.

    My attorney worked up what he believed to be a fair amount for my medical bills and other expenses including diminished value of my car as well as pain and suffering. I only wanted a fair amount as my injuries were not that bad. I’ve been more upset about my car than anything. So he made an offer to the defendants ins co. for $10,600. I felt it should be a little higher but he said if we didn’t go too high it would likely be settled quickly so I agreed. The ins. co. turned it down and did not even comeback with another offer. He told them if they would not accept the offer we would have to go to court. They then told him that her policy was only for the amount of $15,000. for personal injury. I guess they thought he’d drop the offer lower by telling him this. So he told me we will have to file suit so we did.

    He told me to take my car in for an appraisal to get the exact diminished value of the car. I knew I was already having some problems from the repairs. Such as leaking tail lights, lose screws and a few gaps here and there. I knew I would have to take it back in and the work is warranted.

    The car appraiser was stunned at the repair work. He said the frame of my car is still bent and that is why my lights are leaking and full of water. He said the work they did was incomplete and not done right. He estimated the car needs another $3,000-3,500. in additional work. He said the diminished value on top of that would be $6,500. So the car as is is worth $9,000.-10,000. less than before the accident. My attorney informed me that this amount comes from the personal injury part of the insurance money.. meaning the $15,000. Is this true? It wouldn’t fall under personal property damage? It seems to me that the ins. company would have been better off settling with me for the mire $10,600. I don’t understand why they didn’t. The offer was more than reasonable.

    So this is where we are now.. I just filled out my interrogatories. I will be meeting with my attorney tomorrow.

    So are we still only entitled to the max of $15,000.? Will my attorney’s fees have to come out of this? And could we file a bad faith suit as u have discussed? BTW the girl who hit me appeared to be poor and has since disappeared with no forwarding address. I’m not sure if her insurance company has her forwarding address.

    Any help you could offer me would be greatly appreciated.
    Thank you very much!

    • fl_litig8r says:

      The damage and diminished value to your car should be covered under the other driver’s property damage (PD) coverage, not her bodily injury (BI) coverage (I don’t know of any insurers that lump PD and BI together under a single coverage). Of course, the PD coverage has now been reduced by the amount the other insurer paid to reimburse your insurer, so depending on how much PD coverage she had, there may not be enough left to fully compensate you (if she had $10,000.00 in PD coverage, for example). A bad faith claim would, in theory, be available to cover an excess amount, assuming that the other insurer doesn’t tender the rest of its PD limits on demand and you later receive and excess judgment. However, such a claim would probably be financially impractical from a litigation standpoint. It would cost too much to litigate for so little.

      Hopefully, you did not sign a release or authorize your insurer to release the other insurer on your behalf from the property damage claim as part of settling its subrogation claim. If you did, you may still be able to sue your own insurer for the defective repairs (assuming you didn’t release them), but again, the cost involved may not make such a claim practical for a lawyer to handle.

      As far as whether your lawyer can deduct a fee from the property damage award, the short answer is probably yes. Your fee contract likely covers all money recovered by your lawyer on your behalf. Some lawyers do PD claims for free (if not too involved) as a part of handling your personal injury claim. Some lawyers don’t handle property damage claims at all (due to the Hobson’s choice of working for free or taking such a large amount of the PD award that you would have done better to have handled the claim on your own). You’ll have to check your contract and ask your lawyer if he intends to take a fee from the PD claim. If he’ll have to litigate that issue, I’d expect that he’d want to.

  10. Melanie says:

    I am glad I came across your website, and appreciate the thoroughness of the responses you have provided. I too am contacting you on behalf of an elderly parent, so this seemed like a good spot to jump in.

    My mother (aged 84) was a backseat passenger in an auto involved in a single vehicle crash. She sustained internal injuries, resulting in a splenectomy, as well as cracked ribs (3, as I recall). She spent 5 days at Shands (4 in ICU) and was then moved to a rehabilitation hospital for 9 days. She received a couple of weeks of in-home physiotherapy. Her medical bills are approximately $150,000, which have been paid by Medicare and her co-insurer. There remain some small balances outstanding, but the bulk of the medical expenses have been covered.

    She has been dealing directly with the claims adjuster for the past 5 months, and, her understanding is that the at-fault driver’s insurance will cover her medical claims. They have been pressuring her to provide them with a “Pain & Suffering” figure so they can complete the claim. She was very stressed by this, and decided to hire a PI attorney. I am concerned that she will come out “upside” down at the far end of this (i.e. owing more in medical repayments/bills than she will net after attorney’s fees). The at-fault driver carries $250,000 BI, and another $100,000 in Uninsured Motorist. I am unclear (as is my mother), whether she herself has any uninsured motorist coverage.

    I have crunched some numbers, and if she received the maximum BI, $83,250 of this would go immediately to the attorney, $150,000 to medical expenses, and her “net” for the pain and suffering (which was significant) and future medical expenses (concern that infections could be deemed “accident related” due to loss of spleen) would be $16,750. This is before any “costs” the attorney might incur that would be passed on to her.

    That number shrinks even further if she did not get the policy limit (which, is after all, just a starting point of negotiations in settlement talks) or if the insurer was to argue shared negligence (she was not wearing a seat belt), and attempt to assign her a % liability for her injuries.

    I have made some assumptions here that may be incorrect, and would welcome your input if that is so, but I do have some specific questions:

    1. What is the total contingency fee payable to the attorney based on — does it include all medical expenses as billed, as well as the P&S portion. As we seem to have agreement from the at-fault driver’s insurer on 100% liability for the medical expenses, I am curious if the medical expenses should form part of the “settlement” amount for purposes of the attorney’s fee?
    2. Can my mother seek damages under the at-fault driver’s UM coverage? I read somewhere in my research that in certain circumstances, this is possible; however, they didn’t explain when specifically.
    3. If the answer to 2 is “yes”, can she seek damages under both (her own UM coverage AND the at-fault driver’s)?
    4. Would we be better off to negotiate directly with the insurance adjuster? I can’t imagine given the severity of her injuries and trauma, that in direct negotiations we couldn’t secure a P&S award in excess of $16,000.

    Thanks for your input!

    • fl_litig8r says:

      “I have crunched some numbers, and if she received the maximum BI, $83,250 of this would go immediately to the attorney, $150,000 to medical expenses”

      That’s wrong. If Medicare paid $150,000.00 in accident-related medical expenses, it would reduce its lien by 1/3 (the same percentage as the attorney’s fee), so she’d only owe $100,000.00. See this article for more information on Medicare liens.

      1. The contingency fee is based purely on the total recovery made. Whatever money the lawyer brings in from a liability insurer is subject to his fee. So if he gets the full $250,000.00 in BI, his fee would be 1/3 of $250,000.00. Whether the insurer is paying due to medical bills or pain and suffering or both is irrelevant to the fee calculation. As an aside, the insurer won’t make a separate determination of liability with respect to economic and non-economic damages. If it thinks it is 100% at fault, that will apply to both types of damages. It won’t say “we’re 100% liable for medicals but only 80% liable for pain and suffering”. That’s not how it works, because if the matter went to trial, the same percentage of fault would apply to all types of damages.

      2. First, the short answer: probably not, but you need to check the policy language and keep your eye out for the Florida Supreme Court’s ruling in Travelers Commercial Ins. Co. v. Harrington, which is probably still many months away and may have a significant impact on this issue.

      Now, the long answer. People covered by UM insurance in Florida are divided into two classes, Class I insureds, which include the named insureds on the policy and all “resident relatives”, and Class II insureds, which includes anyone else in a vehicle covered by UM insurance that doesn’t fall into Class I. I’m assuming your mom is a Class II insured, meaning that she isn’t a named insured on the driver’s policy and isn’t a relative who lives with him. In Travelers Ins. Co. v. Warren, the Florida Supreme Court held that a Class II insured (a passenger killed in a car accident in a vehicle owned and driven by a friend) could not recover UM benefits in addition to the BI benefits on the subject vehicle’s policy. This was due to a specific exclusion in the policy itself for UM coverage under such circumstances. I assume that the policy at issue in your mom’s case has such an exclusion as well, but that’s something her attorney will need to verify. Given that Warren is a 1996 case, I would expect that most Florida auto insurers have adopted its policy language to provide such an exclusion, but stranger things have been left out of insurance policies before. The reasoning in Warren was that while Class I insureds can recover UM benefits in cases where they are passengers in their own vehicles and a friend is driving, that is due to the fact that they are generally excluded from recovering BI benefits from those types of accidents and the Florida legislature specifically enacted Fla.Stat. §627.272(3)(c) to provide UM coverage when BI is excluded under those circumstances. Because Class II insureds can recover BI benefits from the driver’s policy, the Warren Court held that they were not allowed to recover UM as well, for complicated reasons you can read for yourself using the link to the case above.

      To make matters even more complicated, there is a case pending before the Florida Supreme Court right now in which a Class I insured was paid BI benefits under her own policy (apparently they weren’t excluded, as they usually are — again, an example of why you always need to check the policy) and also sought UM benefits under the same policy. This case is Travelers Commercial Ins. Co. v. Harrington, SC 12-1257 (this link is to the docket search — it won’t let me link directly to this case’s docket, so you’ll need to enter the case number — Choose “SC12” from the “FSC Case Number” drop-down box and type “1257” in the box next to it to find it — the last activity I see is the Reply Brief filed on 6/19/2013, so it appears that only oral argument is left, if granted, and a ruling would follow some time — probably several months — after that). This case may be relevant to your mom’s because, while it involves a Class I insured, I expect that the Court will have difficulty rationalizing allowing a Class I insured to recover both BI and UM insurance under the same policy without also addressing why a Class II insured should not receive similar coverage. Both the trial court and district court of appeal ruled in favor of the insured in this case, so it should be interesting to see if the Supreme Court reverses that ruling under the same rationale it used in Warren (that the only reason a Class I insured can recover UM benefits is because BI is typically unavailable, so a case where BI is paid means that UM is excluded) or if it sustains under the theory that Fla.Stat. §627.727(3)(b) requires payment of both benefits — a ruling that should apply to both Class I and II insureds. Your mom’s lawyer is probably eagerly anticipating the ruling in this case for that reason.

      3. Regardless of whether she can or can’t recover UM benefits from the at-fault driver’s policy, she can definitely recover under her own, if she has the coverage. If it turns out that she can recover UM benefits from the at fault driver, either because his policy doesn’t contain the usual exclusion or the Florida Supreme Court eventually requires it under the Harrington case, it is likely that payment will be coordinated by the two insurers on a pro rata basis (they each chip in an equal amount up to each of their limits to cover her damages), although this also depends on the policy language in both policies.

      4. Because of the very complicated UM issue I just tried to describe (I don’t blame you if you got lost), and because having an attorney significantly reduces the Medicare lien as described in the beginning of my response, I wouldn’t suggest trying to dump the lawyer or deal with the insurance adjuster directly. Also, if you fire him without cause, your mom will still have to pay him.

      God, I hope your mention of Shands means that this is a Florida accident, because otherwise I just wasted a whole lot of time.

      • Melanie says:

        Yes, should have mentioned at the outset that she is a Florida resident.

        I certainly appreciate your response, and the links to case law that pertains; have been trying to locate a mechanism for sourcing decisions in the Florida courts.

        As it turns out (with apologies, but hopefully other users will be assisted by your response), the attorney my mom hired has discovered that the at-fault driver, in addition to their auto coverage, also carried a $1M umbrella policy. A minor bit of information that we would probably never have known about without him. Lesson learned – ask the right question – not just what auto coverage the insured has, but ALL insurance coverage available.

        Now I understand why the adjuster dissuaded my mother from seeking legal counsel (oh, dear, an attorney will take 33% of anything you get, you really do not want to hire an attorney). Regrettable that the insurance company is not required by law at the outset to disclose all available policy limit information.

        Many thanks, again, for the great service you provide.

        • Melanie says:

          Regrettably, I am back (had hoped this would have all been resolved by this point, but no luck.

          My mother had her mediation last week. Her attorney started at $865,000, State Farm at $250,000. (Their are arguing shared liability because my mother-a back seat passenger – did not have on a seat belt). After more than 3 hours of mediation, the insurer had come up to only $300,000 and the decision was made to cease mediation. The trial date is set for February 9, 2015.

          My mom’s attorney wants to amend the statement of claim to add State Farm as a defendant, in addition to the named insured. I have not had an opportunity to speak with the attorney directly about this, but can’t understand WHY he would suggest this. Would you have any insight into reasoning/rationale for this? He suggested it would “make the well deeper”, but, with $1.2m in insurance, I think the “well” is deep enough.

          I am quite concerned about the attorney wishing to amend the statement of claim. My mom is quite anxious for this to be over, and is seriously considering the latest offer (the mediator and her attorney have continued to interface with the insurer, who have now come up to $350,000). In speaking with her last night, one of her biggest motivators at this point is the 6-9 month delay anticipated by attorney if he amends the original claim.

          I am of the opinion that my mom’s leverage for reaching a settlement with State Farm hinges on her trial date….the nearer we get to trial, the more motivated State Farm, and I just can’t see any logic in amending the claim.

          What could be the rationale for amending the claim, resulting in a delayed trial date?

          [Additional info added by Melanie and merged with this comment by admin]:

          Just spoke with my brother and got some clarification. There was evidently a “phantom driver” tailgating the woman driving the car my mom was injured in, and she claims she was watching him in the rear view mirror when the accident happened. Not sure what the relevance of that is in adding State Farm as a defendant, but it might, so figured I’d pass it on, in case it makes a difference.

          • fl_litig8r says:

            That additional information makes a world of difference. Here is why I think you mom’s lawyer is doing the right thing: if the defendant/driver has properly raised the argument that a third party (the phantom driver) may be at least partly at fault for the accident, any percentage of liability assigned to that phantom driver by the jury would be money your mother could not recover unless State Farm was added as a defendant (due to its UM coverage). It’s complicated, but stay with me.

            In Florida, a defendant in a civil case can try to shift liability to another at-fault party, even if that party isn’t a defendant to the lawsuit, and in your mom’s case, even if the specific identity of that third party is unknown. Assuming this defendant followed the correct procedures in raising this defense, the “empty chair” party will be listed on the verdict form as someone who can be assigned a percentage of liability. Imagine the result in your mom’s case if the jury assigns 20% liability to the phantom driver and State Farm is not a party to the lawsuit. The current defendant would pay 80% of the damages awarded and the remainder would go “poof”, regardless of the amount of liability insurance the current defendant has. That 20% would be lost.

            So, how does State Farm being added as a party keep this from happening? We already talked about the issue of whether State Farm’s UM coverage would apply to the current named defendant’s negligence, and it turns out the Florida Supreme Court case I cited back then was subsequently decided and pretty much slammed the door on that possibility. However, this only precludes UM coverage for negligence by the driver of the car your mom was in. It does not preclude UM coverage for a phantom driver (who is deemed uninsured). Your mom can receive UM coverage under the driver’s State Farm policy for the portion of her injuries caused by a phantom driver.

            If your mom’s lawyer adds State Farm as a party, it basically acts as a substitute for the “phantom driver” because its UM coverage will pay any of your mom’s damages attributed to the phantom driver. This way, she doesn’t wind up recovering nothing for the amount of damages a jury attributes to the phantom driver. She can recover “phantom driver” damages up to the amount of the State Farm UM limits (which hopefully would completely cover any such amount).

            Even though this will delay the trial, I think adding State Farm as a party is the only smart thing to do to account for this phantom driver defense. You really don’t want to gamble on the jury completely rejecting the phantom driver argument. Even if a jury assigns only 5% fault to a phantom driver, in a case worth $800,000 that’s $40,000 that no one would have to pay your mom — unless State Farm is added as a party.

            I hope that wasn’t too confusing.

  11. Tired Already says:

    Hi I live in new jersey, if a defendant has inadequate insurance
    can you go after the homeowner’s ?

    • fl_litig8r says:

      I’m going to need more info than that. What type of claim are you making? Is this a car accident, a slip and fall, etc.? Who is the defendant (not a name, but who is it in relation to the homeowner)?

  12. Tired Already says:

    I’m sorry it was a car accident, and the defendant is the wife.

    • fl_litig8r says:

      You can’t collect from a husband’s homeowner’s insurance just because his wife caused a car accident, if that’s what you’re asking. If he was the owner of the vehicle she was driving, he may be personally liable for the damages she caused, but his homeowner’s insurance wouldn’t cover such a claim.

  13. Melanie says:

    Thank you for this information.
    I am curious how the driver/defendant properly raises the phantom driver defense, and how to determine if they “followed the correct procedures” in raising this defense.
    I reviewed the crash report taken at the time of the incident, and there was no mention of a phantom driver. I understand that the crash report is inadmissible in court, but find it hard to believe that the driver/defendant can simply at some point after the incident, can claim there was a phantom driver, and there is no burden of proof required – plaintiff has to just accept that.
    I know my questions get lengthy, but do value your expertise. I understand that the legal reasoning which establishes the inadmissibility of the crash report in litigation is to protect the individuals from self-incrimination. In this instance, there is nothing in the crash report that self-incriminates the driver/defendant, and am curious if there has ever been a successful challenge to include the crash reports to establish what was NOT said at the time (i.e., since no reference to a phantom driver in the exists in the crash report, if it was presented to the jury, they would have reason to suspect the “phantom driver” defense).

    • fl_litig8r says:

      The short version about the procedure is that the defendant had to allege that a third party was responsible in an affirmative defense in her answer to your complaint. In Florida, it’s commonly known as a Fabre defense. When the defendant knows the identity of the third party, they must name names in the actual defense, but in the case of an unknown third party, that extra technicality wouldn’t apply. If an affirmative defense isn’t raised, it is considered waived (though sometimes the court will grant leave to amend an answer to add a defense, depending on the circumstances). I can’t see any good reason why the court would allow this affirmative defense to be added in your case if it wasn’t in the original answer, mainly because it is based on facts that the defendant would have to have known at the time. I don’t know if this defense was pled, but given that you and your lawyer seemed surprised by this phantom driver claim, I suspected that it wasn’t.

      I am not aware of any recognized exception to Florida’s accident report privilege for omissions from a privileged party’s statements. I doubt that such a challenge would succeed, as it would open a Pandora’s box allowing what drivers didn’t say to form the basis for admitting accident privilege-covered statements. The policy behind the privilege is the fact that Florida wants accurate traffic accident data which it can use to make the roads safer. It protects people’s statements not only in a criminal context, but a civil as well to encourage drivers to give accurate information to the reporting officer. While I get what you’re saying about this particular driver in your case having no motive to withhold information about a phantom driver from the reporting officer because such information would not work against her even if there were no privilege, I can also see the argument being made that such a ruling would have a chilling effect on drivers giving an accident report because now they’d be afraid of what they might overlook in reporting. It might encourage people to stick with “I don’t know” and “I can’t remember” and “It happened so fast” types of answers, rather than risk giving details that might contain inadvertent omissions. This would work against the policy goal of gathering as much information about accidents as possible.

      • Melanie says:

        Thanks, again. Appreciate your reply.

        Just as an aside, because obviously it is too late to change the current situation, we WERE aware of the “phantom driver” from early on (I recall hearing it while my mom was still at Shands, so within days of the accident). Unfortunately, I didn’t fully realize the implications of the claim until just recently. As I have not seen the defendant’s response, I can’t speak with certainty about whether it was included, but would be surprised if it wasn’t. They have been through a deposition (in November) and mediation in December, though I wasn’t present for either, am sure this wasn’t just “sprung” on us at the last minute. Which, begs the question, why didn’t her attorney react to this sooner? This whole process has been most stressful for my mom, and at 86, her health and the effects of this stress on her are most worrisome. I am having real difficulty understanding why her attorney waited until after mediation to amend the claim to include State Farm (UM) as a named defendant. This most certainly could have been done, at minimum, after the deposition, which would have almost certainly given time for reply without jeopardizing her trial date.

        • fl_litig8r says:

          I don’t know why he didn’t add the UM insurer as a defendant to compensate for the phantom driver defense sooner. Phantom driver defenses aren’t really all that common (I’m struggling to recall if I’ve ever had to deal with one personally in over 15 years, and I’m drawing a blank), so maybe it just suddenly occurred to him that the UM insurer would be liable for the phantom driver’s negligence. I really can’t say.

          I know you’re probably thinking of chewing him out for missing what seems like something obvious, but I will caution you against this — at least for now. You gain nothing by going after him for this now. What’s done is done and no amount of complaining will get your mom a quicker trial date. You’re just going to alienate him and potentially risk him withdrawing, and it’s really not easy to find another lawyer to take up a case that’s so far along in litigation. Think of the risk/reward issues here. The only reward you get is some temporary satisfaction, while you’re risking your mother losing her lawyer. Because he caught this issue before any permanent damage could be done to the case, this wouldn’t be malpractice. It may be weak lawyering (or not — I don’t know his reasons for not adding the UM insurer sooner), and he may deserve an ass chewing, but I would urge you to save that until you no longer need him. If you want to bring it up now, be diplomatic about it while your mom still needs a lawyer. I’d adopt the “disappointed parent” attitude toward him for now — no displayed anger, but maximizing his guilt.

          • Melanie says:

            Thank you for your words of caution. You are correct, my initial reaction is to “chew him” out for missing something which I felt should have been obvious to a lawyer who deals with Florida personal injury law on a daily basis. But, if it is in fact a rare occurrence, will give him the benefit of the doubt and soldier on with the situation we must deal with.
            We are leaning towards taking the final offer on the table, as quite frankly, the stress on my mother is overwhelming, and would prefer to see this behind her, rather than continuing the on-going strain on her. And while we all concur that her claim is worth much more than State Farm is offering, the extended trial date puts all the cards back in their deck, with time being their greatest ally given her age, health issues, and strain of this unending stress. Thank you, again, for your sharing your perspectives!

  14. Tired Already says:

    Hi I was rear ended a year ago tomorrow, I need surgery on my back L-3 L-4 I just found out that the person who hit me only has 15,000 BI. Her PD coverage took care of my truck. I have 14,300 in medical bills so far still being treated. No offers yet from her insurance co. Can I get her policy limits and my underinsured coverage of 25,000 ? Thanks

    • fl_litig8r says:

      While there are lots of factors which could make your claim worth less than $40,000 (preexisting conditions or issues with causation in general being chief among them), knowing only what you’ve written I’d certainly start by demanding policy limits from both insurers.

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