Latest News

The Successful Defense of an Uninsured Motorist Insurer’s Right of Subrogation:

In Green v. United States, Case No. 6:11-cv-1774-Orl-18KRS, we were successful in defending an uninsured motorist’s insurer’s right to seek subrogation against an alleged tortfeasor.  In that case, the plaintiff sued the United States as tortfeasor, claiming that the plaintiff was injured by a government employee’s negligent operation of an automobile. The plaintiff sued his own uninsured motorist insurer as well, arguing that he should be entitled to make an uninsured motorist coverage claim because the United States government vehicle was not covered by a traditional automobile insurance policy. On behalf of the UM insurer, we filed a crossclaim for subrogation against the United States. The United States moved to dismiss the crossclaim, arguing that Florida Statute 727.727(6)(b) should prevent the UM insurer from asserting a subrogation claim until the UM claim was finally resolved, under the Florida Supreme Court’s recent Tepper opinion. On behalf of the UM insurer, we pointed out that the statute only applies to situations in which the tortfeasor has liability insurance and that liability insurance has been offered to settle the claim. Senior United States District Judge Sharp agreed, and denied the United States’ motion. Following that denial,  the plaintiff and the United States stipulated for the dismissal of the insurer from the action.  Copy of order

Dismissal Obtained of Florida Antitrust and Unfair and Deceptive Trade Practices Act Claims:

On behalf of an aircraft maintenance facility, the firm recently obtained dismissal of claims asserted by the plaintiff under Florida’s antitrust laws and under Florida’s Deceptive and Unfair Trade Practices Act. The customer, a Florida resident, had work performed on his aircraft at the facility’s operation in Colorado. The court rejected the customer’s attorney’s arguments that he should be able to assert a claim under these Florida laws because the customer was claimed to have suffered some damage in Florida from the Colorado repair work.

Dismissal With Prejudice of Claims Against Flight School:

The Broward County Circuit Court recently granted our motion to dismiss with prejudice a suit against our client flight school. The estate and survivors of one of the school's independent contractor flight instructors had sued the school for the instructor's death from a midair collision. The estate's claim was that the school was negligent in 'supervising' the instructor or, alternatively, that the collision was caused by the student pilot's negligence and that the school, as the aircraft owner, should be held liable under Florida's dangerous instrumentality doctrine. Judge Krathen dismissed the suit against the flight school with prejudice, ruling that the school had no duty as a matter of law to 'supervise' the instructor's conduct of the flight and that the dangerous instrumentality doctrine did not, as a matter of law, operate to impose liability upon the school as owner.

Does a Defendant in an Auto Case Still Have the Right to Have the Plaintiff’s Claim Reduced by Statutory PIP Benefits, When a Plaintiff is Required to Purchase PIP Coverage, But Does Not?

Florida requires all motor vehicle owners to maintain at least $10,000 of “no fault” automobile insurance, which includes personal injury protection (PIP) coverage.  In case of an accident, PIP coverage pays 80% of the insured’s medical bills and 60% of the insured’s loss of income caused by an automobile accident, to a maximum limit of $10,000, regardless of whether the insured is at fault in causing the accident.  §627.736, Fla. Stat. The Legislature’s plan was to have every motorist involved in an accident rely on their own PIP insurance for payment of most of their medical bills and lost income, and have no right to seek recovery of those against someone who has caused the accident.  Therefore, Florida’s No-Fault Act provides that a defendant motorist who is accused of causing an accident is not liable for a plaintiff’s claims to the extent that PIP benefits should be payable.

What happens when the Plaintiff violates the statute by operating his or her vehicle without PIP coverage and is involved in an accident?  The statutes say that when that occurs the vehicle owner becomes “personally liable for the payment” of PIP benefits, and has “all of the rights and obligations” of an insurer providing those benefits.  §627.733(4), Fla. Stat.

How a court deals with uninsured Plaintiffs now depends on the part of Florida in which the case is pending.  Florida’s Fifth and Second District Courts of Appeal have held that no PIP set-off is available for Defendants who are involved in an accident with a Plaintiff who does not carry PIP insurance coverage.  Stephens v. Renard, 487 So.2d 1079 (5th DCA 1986); Jedlicka v. Proctor, 724 So.2d 668 (2nd DCA 1999).  However, the Third and Fourth Districts have held that the Plaintiff’s violation of the statute should not be rewarded, and that the Defendant should be entitled to a setoff for the PIP benefits which the Plaintiff should have procured, but did not.  Cases v. Gray, 894 So.2d 268 (3rd DCA 2004); Holt v. King, 707 So.2d 1141 (4th DCA 1998).

The issue remains unsettled in Florida.  The Fourth District in its Holt case certified the question to the Florida Supreme Court as one of great public importance, but the Supreme Court has not yet resolved the issue.  In several cases we are presently defending, we have asked the courts to address this issue, as one which should be settled uniformly throughout the state.