IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT JANUARY TERM 2004
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Appellant,
v. Case No. 5D03-2504
GARY PARRISH AND JOELLEN PARRISH, etc.,
Appellees.
/
Opinion Filed May 21, 2004
Appeal from the Circuit Court
for Brevard County,
T. Michael Barlow, Judge.
F. Bradley Hassell and Thomas C. Smith, Daytona
Beach, for Appellant.
Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain &
Williams, LLP, West Palm Beach, and Robert M.
Moletteire of Graham, Moletteire & Torpy, P.A.,
Melbourne, for Appellees.
PLEUS, J.
State Farm appeals a final declaratory judgment in favor of Gary and Joellen Parrish
as Personal Representatives of the Estate of Bradley Parrish. State Farm claims the trial
court erred in finding that stacking uninsured motorist coverage was available to the Parrishes
under their State Farm policy. The issue is whether the Parrishes knowingly selected nonstacking
uninsured motorist insurance coverage, or, more specifically, whether State Farm
met its burden of proving a non-stacking election.
2
Bradley Parrish was killed by an underinsured motorist in an automobile accident in
1999. Eight years before, in 1991, his parents, Gary Parrish and Joellen Parrish, had
purchased an initial automobile policy from State Farm containing $100,000/$300,000 in
bodily injury limits. The policy did not provide for stacking and limited uninsured bodily injury
to $25,000/$50,000. The policy was renewed annually until the accident. While the Parrishes’
policy also provided for $25,000/$50,000 underinsured motorist coverage, the lower court
found it was impossible to tell definitively from the uninsured motorist (UM) form Mr. Parrish
executed in 1991, whether or not he chose to reject “stacking” UM coverage.
The evidence at trial revealed that the Parrishes went to Eric Ponce’s State Farm
agency to procure insurance coverage after they moved from Broward County to Brevard
County in 1991. When Mr. Parrish explored his insurance options, he learned that his move
would entitle himto a 40 percent savings on his annual insurance costs. The Parrishes both
testified that their primary concern was to procure the same kind of “full coverage” they had
possessed in Broward County, and that cost was notanissue. Eric Ponce’s employee, Pearl
Wentz, met with Mr. Parrish. Unfortunately, long before Bradley Parrish’s death, Ms. Wentz
herself passed away. However, Mr. Ponce testified that he had overheard her meeting with
clients, and that he believed she likely would have discussed UM coverage with Mr. Parrish.
Mr. Ponce’s knowledge of the transaction was based on the office policy and his belief that
Ms. Wentz obtained a knowing waiver from/with the plaintiff; Mr. Ponce never spoke to the
Parrishes directly about their insurance needs. “Stacking” UM coverage, as Mr. Ponce
conceded, was not tremendously more expensive than “non-stacking” coverage.
The real issue in this case boils down to the wayin whichthe application form, filled out
3
in 1991, is checked and whether the check mark creates an ambiguity. The trial court says
it does. We disagree.
Standard of Review
Whenthe interpretationof aninsurance contract is in question, the applicable standard
of review is de novo. Allstate Ins. Co. v. Rush, 777 So. 2d 1027, 1029 (Fla. 4th DCA 2000).
Several rules for insurance policy interpretation were
stated in Roberts v. Florida Lawyers Mutual Insurance Co., 839
So. 2d 843 (Fla. 4th DCA 2003):
The scope and intent of insurance coverage is
defined by the language and terms of the policy.
In construing aninsurance policy, the court should
read the policy as a whole, giving every provision
its full meaning and operative effect. Any
ambiguities in an insurance policy are to be
interpreted liberally and in favor of the insured and
strictly against the insurer. A policy is ambiguous
when the language is subject to “more than one
reasonable interpretation,one providing coverage
and another limiting coverage.”
Id. at 845 (citations omitted).
Larusso v. Garner, 29 Fla. L. Weekly D388, D389 (Fla. 4th DCA Feb. 11, 2004).
Admittedly, this case is unique because the alleged ambiguity is not in the language
of the form, but in the manner in which the form is filled out.
Analysis
Section 627.727, Florida Statutes (1991), requires that all motor vehicle liability
insurance policies thatprovide bodily liability coverage include uninsured motorist coverage.
Under section 627.727(1), the amount ofUMcoverage is equal to the amount of bodily injury
liability purchased by an insured, unless the insured rejects UM coverage or selects lower
4
limits of UM coverage. See Chmieloski v. Nat’l Union Fire Ins. Co., 563 So. 2d 164, 166
(Fla.2d DCA 1990). An insured may reject such coverage in writing, and the insured’s written
rejection constitutes a prima facie showing that uninsured motorist coverage does not apply.
Long v. Prudential Prop. & Cas. Ins., 707 So. 2d 390, 391 (Fla. 5th DCA 1998) (citing
Jackson v. State Farm Fire & Cas. Co., 469 So. 2d 191, 193 (Fla. 2d DCA 1985)). With
regard to the rejection or selection ofUMcoverage, section 627.727(1) specifically provides:
The rejection or selection of lower limits shall be made on a form
approved by the Insurance Commissioner. The form shall fully
advise the applicant of the nature of the coverage and shall state
that the coverage is equal to bodily injury liability limits unless
lower limits are requested or the coverage is rejected. The
heading of the form shall be in 12-point bold type and shall state:
“You are electing not to purchase certain valuable coverage
which protects you and your family or you are purchasing
uninsured motorist limits less thanyour bodily injury liability limits
when you sign this form. Please read carefully.” If this form is
signed bya named insured, it will be conclusively presumed that
there was aninformed,knowing rejection of coverage or election
of lower limits on behalf of all insureds.
Absent exigent circumstances suchas forgery, fraud, or trickery, the insured is deemed to be
bound byhis signature onaninformed rejection form. Long, 707 So. 2d at 391; Nationwide
Mut. Fire Ins. Co. v. Kauffman, 495 So. 2d 1184, 1187 (Fla. 4th DCA 1986).
Here, the insured, Mr. Parrish, signed an approved uninsured motorist coverage
rejection/selection form. However, when the trial court determined that the manner in which
the form was completed created a patent ambiguityonits face,State Farmwasunable to take
advantage of the conclusive presumption of waiver in the statute.
The uninsured motorists rejection/selection form provides:
5
SELECTION/REJECTION OF COVERAGE
Florida Law requires that motor vehicle liability policies include “stacking”
Uninsured Motorist coverage, unless you select “non-stacking” coverage. The
selected coverage must be at limits equal to the Bodily Injurycoverage limits in
your policy unless you select lower limits of coverage. You also have the right
to reject Uninsured Motorist coverage.
9 1. I hereby reject Uninsured Motor Vehicle Coverage.
9 2. I hereby select Uninsured Motor Vehicle Coverage with one or more of
the following reductions:
9 a. I reject the stacking form of coverage and select the nonstacking
form of coverage.
9 b. I select limits of $ / which are lower than my Bodily
Injury Liability limits.
Our review of the form, attached as an exhibit to this opinion, shows the check mark
was in box 2a., and not in between boxes 2a. and 2b., with part of the X lying in both boxes.
Box 2b. is not checked but the numbers 25,000 and 50,000 are selected as the lower limits
of bodily injury protection. The trial court found that the form, as filled out by the parties, had
a patent ambiguity on its face because both boxes 2a. and 2b. would have to have been
checked for the coverages listed in the policy($25,000/50,000 uninsured bodily injury limits).
This is not the case.
Apparently, thismisunderstanding resulted inanincorrect interpretationof the form and
caused the trial court to conclude that an ambiguity existed. The trial court said:
I notice that Plaintiffs’ Exhibit One has Block 2 checked, which
says, Iherebyselect uninsured motorist, uninsured motor vehicle
coverage with one or both of the following rejections. Then there
follows two boxes, A and B. One which rejects stacking, the
other selects lower limits. Only one of those two boxes is
checked.
6
That’s patent ambiguity on the face of the form, because
in order to issue this policy that State Farm issued, both of those
blocks would have had to have applied. There is no indication in
this form, as a matter of fact, that both blocks were selected.
* * *
So, Ido find that there is anambiguity in the election form,
because both boxes are not checked. And indeed, it is unclear
as to whether Box A or Box B or both are indicated. I, therefore,
find thatbecause there is anambiguity in the form, it is nota valid
election form.
We therefore reverse the trial court’s entry of declaratory judgment in favor of the
Parrishes, which found stacking uninsured motorist coverage available under their insurance
policy with State Farm. The trial court erred in finding a patent ambiguity on the face of the
Florida Uninsured Motor Vehicle Coverage-Selection/Rejection Form. State Farm was
entitled to rely upon Mr. Parrish’s signature on the form as a conclusive presumption of the
Parrishes’ knowing and voluntary waiver of stacking UM coverage.
REVERSED.
PETERSON and GRIFFIN, JJ., concur.
7

Third District Court of Appeal
State of Florida, January Term, A.D. 2008
Opinion filed April 9, 2008.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D06-725
Lower Tribunal No. 05-329
________________
Olga Peraza,
Appellant,
vs.
Irma Robles,
Appellee.
An Appeal from the Circuit Court for Monroe County, Luis M. Garcia, Judge.
Hunter, Williams & Lynch and Christopher J. Lynch and Steven Hunter, for appellant.
Anania, Bandklayder, Blackwell, Baumgarten, Torricella & Stein and Douglas H. Stein, for appellee.
Before COPE and SUAREZ, JJ, and SCHWARTZ, Senior Judge.
ON MOTION FOR REHEARING
SCHWARTZ, Senior Judge.
We grant appellant’s motion for rehearing. The opinion issued on July 18, 2007, is withdrawn and the following opinion is substituted in its place.
After the plaintiff-appellant Peraza was involved in a serious automobile accident caused by the defendant-appellee Robles, Peraza’s counsel sent Robles’ liability carrier MGA Insurance Company a bad faith letter demanding that it pay the $10,000 policy limits within fifteen days. Virtually by return mail, a $10,000 draft from MGA claims adjuster Mario Fernandez was forwarded to counsel. The letter required that the check be held in escrow by Peraza’s counsel until MGA received “an unaltered release executed . . . along with a copy of the U/M Carrier Authorization of Settlement and Waiver of Subrogation Rights.” [emphasis in original]. The plaintiff did not negotiate the draft, however, and filed suit in Monroe County circuit court. This appeal is by the plaintiff from a final order enforcing the $10,000 settlement and dismissing the case. We reverse.
We agree with the plaintiff’s contention that MGA’s response to her offer – that is the claims adjuster’s demand for the unaltered release, which included an objectionable hold harmless provision and the UM carrier subrogation waiver – did not demonstrate an effective acceptance of Peraza’s offer. Because the documents demanded in MGA’s response were not shown to be “usual settlement documents” implicit in any settlement, Nichols v. Martell, 612 So. 2d 657, 658 (Fla. 3d DCA 1993); Erhardt v. Duff, 729 So. 2d 529, 530 (Fla. 4th DCA 1999); Boyko v. Ilardi, 2
613 So. 2d 103, 104 (Fla. 3d DCA 1993), and thus, constituted a separate additional requirement that conditioned the settlement on the submission of the requested documents, we conclude that MGA’s response was a counteroffer that served as a rejection of Peraza’s offer. See Nichols v. Hartford Ins. Co. of the Midwest, 834 So. 2d 217, 220 (Fla. 1st DCA 2002), review denied, 845 So. 2d 890 (Fla. 2003); Ribich v. Evergreen Sales & Serv., Inc., 784 So. 2d 1201 (Fla. 2d DCA 2001); see also Cheverie v. Geisser, 783 So. 2d 1115, 1119 (Fla. 4th DCA 2001), review denied, 805 So. 2d 806 (Fla. 2001); Grimsley v. Inverrary Resort Hotel, Ltd., 748 So. 2d 299 (Fla. 4th DCA 1999); Bateski v. Ransom, 658 So. 2d 630 (Fla. 2d DCA 1995); Dale Swope, Tips for Auto Practitioners, Fla. Just. Ass’n J., Aug. 2007, at 25; cf. Dania Jai-Alai Palace, Inc. v. Sykes, 495 So. 2d 859 (Fla. 4th DCA 1986).
Robles counter argues, however, that Peraza accepted the counteroffer, rendering the settlement binding and enforceable. In support of that contention, she submitted an affidavit of her claims adjuster to the effect that he spoke with Peraza’s counsel’s secretary, and that she agreed to provide MGA with an executed release and a UM carrier authorization. We do not accept this contention because, in response, Peraza denied those allegations and sought an evidentiary hearing to resolve the conflict. See Architectural Network, Inc. v. Gulf Bay Land Holdings II, Ltd., 933 So. 2d 732 (Fla. 2d DCA 2006); Nichols v. Martell, 612 So. 2d at 658-
3
59. In seeking enforcement of the purported agreement, it was MGA’s burden to prove the secretary’s acceptance and her authority to agree. Because it failed to do so, we reverse the dismissal, and remand for an evidentiary hearing.
Reversed and remanded.
Suarez, J., concurs.
4
Peraza v. Robles
Case No. 3D06-725
COPE, J. (dissenting).
The legal question is whether there was a valid offer and acceptance in this case, or whether the settlement documentation demanded by MGA Insurance Company amounted to a counteroffer. In my view the trial court correctly found there to be an acceptance. We should affirm the order under review.
While walking, plaintiff Olga Peraza was struck by a car driven by the defendant, Irma Robles. The plaintiff’s counsel sent a letter to the defendant’s insurer, MGA, requesting a tender of the $10,000 policy limits within fifteen days. MGA replied by sending a check for the $10,000 limit, conditioned on (a) execution of a release which included a hold harmless agreement, and (b) a waiver of subrogation rights by plaintiff’s uninsured motorist (UM) carrier.
The plaintiff took the position that MGA’s demand for the execution of the settlement documents amounted to a counteroffer. The plaintiff contended that she had rejected the counteroffer, and there was no settlement. Plaintiff’s counsel retained custody of the settlement check but did not cash it.
The defendant filed a motion to enforce settlement and requested dismissal of the lawsuit. The defendant contended that MGA had validly accepted the plaintiff’s settlement demand by tendering the policy limits. The defendant
5
maintained that the settlement documents were customary and did not amount to a counteroffer.
At the non-evidentiary hearing below, the plaintiff conceded that the request for a release was permissible and did not constitute a counteroffer. However, the plaintiff maintained that the demand for a hold harmless agreement and UM waiver amounted to a counteroffer.
The trial court granted the motion to enforce the settlement and dismissed the case. This appeal followed.
When a plaintiff demands the policy limits, the demand is necessarily subject to compliance with statutory and case law requirements. That is so even if the plaintiff makes no mention of such requirements in the demand for policy limits–because the plaintiff must, as a matter of law, comply with applicable statutory and case law requirements.
Under our case law, when the plaintiff demands the policy limits, the defendant may insist upon the execution of the customary settlement documents. Nichols v. Martell, 612 So. 2d 657, 658 (Fla. 3d DCA 1993). The defendant’s tendering of the policy limits, along with customary settlement documents, is an acceptance, not a counteroffer. Id.; see also § 627.4265, Fla. Stat. (2005).
As already stated, the plaintiff conceded that she had an obligation to execute a release. If there is a dispute about whether the language contained in a
6
release is customary, then the dispute over language is a matter to be resolved by the trial court, but the existence of such a dispute does not undo the settlement.
This takes us to the hold harmless agreement and the waiver of subrogation rights by the UM carrier. It is my understanding that provisions for satisfaction of hospital liens (which is what the hold harmless does), and waiver of subrogation rights, are customary in personal injury settlements. To paraphrase the Fourth District, it would make no sense for the insurer to tender its policy limits if there remained a possibility that it could still be liable for further claims arising from the same incident. See Erhardt v. Duff, 729 So. 2d 529, 530 (Fla. 4th DCA 1999). These requests are reasonable and customary, and not a basis on which to say that MGA made a counteroffer.∗
We should affirm the trial court’s ruling. If the majority has doubts about what settlement documents are customary in this context, then at best there should be a remand for an evidentiary hearing on that issue.
Perhaps it should be mentioned that, at the original oral argument in this case, plaintiff’s counsel was fairly direct in saying that this entire controversy stems from a desire to set the stage for a “bad faith” action against the insurer.
∗ At the hearing below, the plaintiff contended that her UM carrier likely would refuse to execute the waiver of subrogation rights. By statute, if the UM carrier refuses permission for the proposed settlement, then the UM carrier must pay the plaintiff the amount of the settlement. § 627.727(6)(b), Fla. Stat. (2005).
7
Except for that fact, it seems clear this matter would have been resolved long ago. We should adopt rules which encourage, and do not thwart, settlements.
For the stated reasons, the order now before us should be affirmed.
8

My wife had an accident…

..and she called a lawyer from the phone book..

..the girl who answered said..

..she has to have a permanent injury..

..to have a case..is this true?

A:  Yes and no.  The Florida Motor Vehicle No Fault Law requires that a claimant sustain a permanent injury in order to receive any money whatsoever for pain, suffering, anguish and inconvenience.  That said, that same law mandates that each claimant’s own auto insurance company pays their medical expenses and lost wages, no matter who is at fault.  With basic coverage, 80% of medical bills and 60% of a person’s average gross wage is paid by their own carrier.

So even without a permanent injury, a claimant is entitled to the other 20% of medical expenses and 40% of wages from the at fault driver and their insurance carrier, provided that driver carries bodily injury liability coverage.

Let’s look a moment, though, at legislative intent and definitions.

Very often insurance adjusters will tell an unrepresented claimant just that…that they are not entitled to any money for pain and suffering if there is no permanent injury.

But do bruises, sprains, stiffness, soreness and the like prevent someone from pursuing a case?  That is, unlike broken bones, stitches, surgeries, etc. are they inherently not a permanent injury?

Don’t let insurance companies nor unseasoned lawyers fool you.

First, that state No Fault Law has four specific definitions of permanent injury:

1.  Death.

2.  Permanent and significant scarring or dismemberment.

3.  Permanent loss of an important bodily function.

4.  Permanent injury within a reasonable degree of medical probability.

Now, lawyers on both sides of an issue love to argue any single word in a law or rule that has any degree of ambiguity to it.  So, as to number 2, they love to argue what is significant and what isn’t.  Likewise, in number 3, they love to argue what is important and what isn’t.

Number 4 is the catch-all.  Any qualified physician in Florida (medical doctor, osteopath, chiropractor, podiatrist, oral surgeon, dentists) can testify as to the permanency of a plaintiff’s condition.  While not an absolute requirement, most doctors turn to the American Medical Association’s Guides to the Evaluation of Permanent Impairment to determine the degree of permanent impairment, if any.

The Guides hold that medically documented pain, rigidity (stiffness), and/or loss of range of motion, over a period of time (to be determined by the doctor) constitutes a finding of permanent partial impairment…in other words, a permanent injury.  Rephrased, x-rays and other films such as MRI can show absolutely no fractures, no herniated disk(s), nor any other disk abnormality/injury, no damage to the meniscus in the knees, nor rotator cuff in the shoulders, etc., but damage to muscle tissue…which cannot be seen on film, can be considered permanent.

By their very nature, auto accidents produce hundreds, or thousands, of foot-pounds of shearing force even when the damage to the vehicles is essentially minimal.  And injured muscles HURT!

So what do you do?  Call me.  The first and foremost issue is your health.  That said, you want to be sure to treat with a doctor who is familiar with the AMA Guides and will give you a fair shake, so to speak, as to the finding of any residual (lasting) impairment or disability.

Believe me, there are doctors out there who are squarely on the side of the insurance industry and are going to minimize your injuries, even saying there is no permanent impairment when by definition you have suffered just that.  Doctors who will even say that an objective finding like a herniated disk is not related to the accident!

I recommend doctors who are usually board certified in their specialty, adept at getting patients well, are quick and accurate with their reports, and who testify well.

So even if you think you’ve just got a little bruising, a little soreness, just a little stiff the morning after the accident, you may be entitled to many thousands of dollars.

Call me!  Even after 5pm, including Saturdays and Sundays.  I look forward to hearing from you.  The consultations are free, and there’s no pressure.  You will know all of your potential rights and benefits.

I don’t make a lot of money…

..so I put the minimum insurance on my car…

..I mean, that’s all I need for my tag..

..and registration and to drive, right?

A:  Ask yourself this:  are you willing to bet your and your family’s best interests, perhaps even entire future(s), that you will never cause an accident?

If you took the minimum requirements in Florida to register and tag your vehicle, that means you’ve got PIP (personal injury protection) and property damage liability coverage.  The odds are you took out the largest deductible allowed on PIP ($1,000) too.  This means you have

NO bodily injury liability coverage, NO medical payments coverage (“medpay”), NO collision coverage, NO comprehensive coverage, and NO uninsured motorist coverage.

Let’s look at two different situations…one in which you cause an accident, and one in which you are injured by someone else who is at fault.

If you cause an accident….many people believe that since their property damage liability coverage (required by Florida as discussed) will fix the other guy’s car up to ten thousand dollars’ worth, that the other party won’t go after them for “pain and suffering money” because they don’t have that type of coverage.  That’s true only to a degree.  The person(s) you injured has only one viable source of recovery:  uninsured motorist protection, or going against your personal assets (and this does happen)…BUT…the uninsured motorist insurance company that pays their claim will very often subrogate against YOU.  What this means is that the insurance company who pays their claim for, among other things, pain, suffering, anguish, and inconvenience, will go after you and your personal assets (savings of any form, equity in your home, cars, etc. etc.) to get their money back.  They can file liens and ruin your credit and keep you from making major purchases, including cars and homes, for years.

By not purchasing bodily injury liability coverage (you can purchase a relatively small amount), you are leaving yourself exposed, not to mention your family.

Now, let’s say you’re in an accident with another driver who was at fault.  And what if that at fault driver did the same thing you did…purchase only PIP and property damage liability coverage, the minimum Florida requires?

Well, they’ve got the coverage to fix your car, providing it doesn’t cost over ten thousand dollars.  And under state law, your own insurance company will pay your medical expenses and lost wages up to ten thousand dollars.  BUT…your company only pays 80% of medical bills and 60% of average gross wage, and remember, you have a one thousand dollar deductible.  So you could wind up (between the deductible and 20%) with thousands of dollars of unpaid medical expenses….and believe me, hospitals in particular will file liens to go after their money…once again, potentially ruining your credit for years.

And no matter how severe your injuries, even if broken bones, extensive suturing (stitches), surgeries, or even worse….you would get zero dollars in this example for pain and suffering, not to mention even higher unpaid medical bills.

These are good reasons to purchase medpay (pays the other 20% of bills), to get NO deductible on PIP (not that much more money) and to have uninsured motorist protection also, which protects you and your family not only against an uninsured motorist (either their coverage was lapsed because they didn’t make their premium payments or they had minimum coverage as outlined), but also against another driver who doesn’t have enough insurance (underinsured motorist) and also against phantom vehicles (hit and run drivers being one example).

Sound a little complicated? Well, if you’ve been in an accident, it’s not too late.  EVEN IF ANOTHER ATTORNEY HAS SAID THERE’S “NO CASE”, call me! There are issues to look at like was there a proper rejection of uninsured motorist coverage executed (signed) by you or whoever would have taken out the coverage?  Does the other party have assets to go after?  If you haven’t been in an accident, and would just like to have your auto policy reviewed by an attorney or their staff, with recommendations as to your coverages, again, call me.

My cousin was in an accident…

..he felt like his attorney..

..wanted him to have surgery…

…just to make the case stronger..

Now I’ve had an accident…

…and an MRI showed something bad…

I’m not sure what to do…

A:  A person injured in an accident who has a subsequent scan

(CT, or “cat”, or MRI) that reflects a condition that might require

surgery (torn ligament, rotator cuff, meniscus, herniated disk, etc.) should consult with their doctor(s).  This is a health question that is best answered by the doctor and by you, the patient themselves.

And get a second opinion.  Traditionally, such injuries don’t improve with time, and there’s not a lot of sense in putting off a procedure that will get you on the way to a healthy recovery.

That said, unfortunately, many front line insurance adjusters just won’t pay the full value of a claim based solely on a prognosis, that is a prediction, for surgery.  If a case goes all the way to a courtroom trial, each juror gets what I call a “scoresheet”, officially a Jury Verdict form, and they are asked to plug in dollar figures for past, current, and future medical expenses among other things.  A jury must be convinced, however, if the plaintiff has been prognosticated to have surgery related to an accident but hasn’t had it yet, that such surgery is causally related to the accident and that it will be required in the future within a reasonable degree of medical probability.  This will be attested to, predictably, by your treating physician(s), but the defense is entitled to have you examined by a doctor of their choice, a hired gun who will probably say that surgery isn’t required and moreover question the causal relationship of what can be seen on film to the accident in question.

Before a jury ever reaches the point of plugging in dollar figures for certain categories, medical expenses being among them, as well as an award for pain and suffering, they must answer two questions at the top of that form in the affirmative:

1.  Was the defendant negligent in causing this accident?

(if so, give the percentage of negligence)

2.  Has the plaintiff (you) suffered a permanent injury?

The finding of a permanent injury is a requirement under Florida law for you to receive so much as a dime for pain and suffering.

As a matter of practicality, jurors, and frontline insurance adjusters when the case is still being considered out of Court, generally believe a finding of permanent injury much more quickly so to speak if surgery has actually been undertaken.

Again, that’s a matter of practicality.  The overall answer to your question, again, is that a decision whether to have surgery or not is a health question between you and your doctor(s), not a legal question.

Yes, you’ll generally get more money and get it faster, but that’s, again, a generality, and your health is the primary consideration.  I also reiterate you should get a second opinion, but it would be best with a doctor I recommend – generally board certified in their specialty, and one who is experienced at testifying in such cases.

I’ve always wanted the best for my family..

..and myself…but we live frugally…

…we just bought an older car..

..and only have a few payments to make…

…should I purchase collision coverage

..and/or comprehensive???

A:  It’s very prudent to ask about what insurance coverage(s) you should get before you get into an accident.

When you said that you are fiscally conservative, that is, frugal, the question arises as to whether, with just a few payments to make as you say, you have financed it through a bank or other lending institution or if it is at a “buy here, pay here” location.  Indeed, a tangential question arises as to whether it would be more prudent to just pay the car off and own it outright.

Most institutions that finance cars require you to carry collision coverage on the vehicle for the duration of the financing…that is, until it’s paid off.  This would effect repairs to the vehicle or pay you the fair market value if it’s declared a total loss even if you are at fault in an accident.

And that’s another quick sidebar…if the vehicle is financed, will you owe more on the car than what it’s market value actually is?  If that’s the case and you’re in an accident and the vehicle is totalled, you might still owe money to the bank on the car even after you’re paid for the total loss by the insurance company!  So “gap” insurance is something to consider…even for older cars.

This all gets a little complicated, but what it really boils down to is your

economic situation (which you know better than anyone else) and making you aware of what each type of coverage does, and doesn’t, do

and weighing that against the cost of the coverage.

For instance, in Florida, your own auto insurance pays your medical expenses and lost wages no matter who is at fault in an accident.  Do you want your medical bills paid at 80% or should you purchase the supplemental coverage “medpay” and get 100% of the medical bills paid

(up to coverage limits?)…after all, you might carry health insurance that would pay the other 20% anyway.

Each and every coverage you potentially select…although no fault coverage for medical bills and lost wages, and property damage liability

(to pay for the other guy’s car if you cause an accident) are mandatory,

ties directly in to what you can afford and what other personal situations you are in, having health insurance or not just being one example other than your ability to afford certain coverage(s).  Should you have a deductible on any coverage?  Etc. Etc.

Overall..it’s at least mildly complicated.  But I do this every day and know the coverages inside and out.

I’ll be more than happy to explain them to you, even if you haven’t been in an accident…over the phone or preferably in person.  Dig your policy out and bring it in.  We can go over what  you currently have, and, based on your personal situation, including your income and year and make of your vehicle(s), I can make recommendations to you…on what coverages you can afford, and what they will potentially do for you.

After all, you’re right…protecting you and your family is very important.

Call me.  24/7, including Saturdays and Sundays.  My consultations are free.

After my accident I got my car fixed…

…and the insurance company offered me some money..

…I hear if I go with a lawyer…

…it takes a long time…I have to reach…

..”maximum medical improvement”..

..what’s that?

(407)883-2618 – FREE consultation

A:  It’s pretty much just what it sounds like.  It’s when your doctor(s) says they have you essentially as well as they can get you.  This could involve a few weeks, or even a few months, of physical therapy, and/or pain management, or other treatment.  Even if you just strained a muscle, there is a process of getting you well.  As long as you continue to improve physically, you have not yet reached that stage called

“maximum medical improvement”, or MMI for short.

Now, you can take money from an insurance company early on if that’s what you want to do.  Bear in mind, however, that they will ask you to sign a full release when they hand you that check.

This means that later on, if you discover that that nagging soreness in your knee is a torn meniscus, or inability to rotate your shoulder is a torn labrum, or numbness and tingling going down your leg(s) is actually a herniated disk in your lower spine, and especially if surgery is prognosticated (predicted), that insurance company is going to wave that release and say that you let them off the hook completely.

While more and more, Florida’s trial courts have been overturning such releases, garnered by insurance companies without knowing the full extent of the plaintiff’s injuries and without the plaintiff being represented by a lawyer, nonetheless this could prove to be a stumbling block.  Hand in hand with the release, the insurance company would try to claim that any more severe injury(ies) discovered later on are not related to the accident.

Most cases in the United States are settled out of Court.  And the vast majority of those are settled within a few months.  And this includes reaching maximum medical improvement.  More severe injuries may take a little longer, but again, most of the time we’re talking about a few months of treatment to get you to the point where you are fairly close to being back to pre-accident status.

So it is most likely well worth your while to get the treatment you need, both for the sake of your health, as well as any potential case and in so doing get the full money value of your claim.

DON’T SELL YOURSELF SHORT.  An insurance company may want to settle now, but there’s a reason for that.  In cases of clear liability (negligence) against the at fault driver, even muscular strains generally settle for multiple thousands of dollars….if you receive the treatment you require and reach maximum medical improvement.

Again, generally, it’s a matter of just a few months.  I reiterate, why not get yourself well and get the money you deserve instead of making a quick settlement for little money with an insurance company that is anxious to do so?

I was in an accident…

..and the ambulance took me to the hospital..

..now I’m getting bills…

..because they say I’ve got a big deductible!

..my agent said I had full coverage..

..what do I do???

A:  I’ve said before that the term “full coverage” is very misleading especially when used by insurance agents.  It generally means you have the coverage necessary to register and tag your vehicle here in Florida and drive it on our roads.  But minimum coverage leaves you exposed in many ways.

Remember, Florida’s Motor Vehicle No Fault Law holds that your own

auto insurance pays for medical expenses and lost wages, no matter who was at fault in the accident.  But…with basic coverage, your company pays 80% of medical expenses related to the accident and 60% of your average gross wage for time missed from work due to the injury(ies), to a combined benefit of ten thousand dollars….however, subject to any deductible you might have elected. Election of a deductible is another one of those “check the block here” things on an insurance application that often has agents and their staff checking the block for you and then it’s just “sign here, here and here.”

The largest deductible that Florida allows on such auto no fault coverage is one thousand dollars ($1,000.00).

So you or a family member (or both) go to the hospital via ambulance.

You’ll get a bill for a few hundred bucks from the ambulance company, another bill from the hospital, yet another bill from the emergency room doctor (generally separate from that of the hospital), and another from the radiologist who reads your x-rays (if any are shot and they generally are in auto accident cases).

So it’s easy to see that your bills can add up to a thousand dollars or more for that emergency room visit complete with emergency transport…and you get stuck with the bill.

Get a rate quote from your agent.  You obviously know what you are paying for auto insurance now…so find out what your no fault coverage (personal injury protection, or “PIP”) would run if you had no

deductible.  You are going to find out it is just a very few dollars more to have a zero deductible, with your company paying medical bills and lost wages from the first dollar.

So why wouldn’t an insurance agent (and therefore insurance company) want to sell policies with no deductible and get higher premiums?

Remember…it’s only a very few dollars more to go from a one thousand dollar deductible to a zero deductible.  Think about the converse of that situation.

As it stands, insurance companies and their agents are getting almost the same amount of money for a one thousand dollar deductible on PIP.

When an accident happens, that’s a full one thousand dollars less they have to pay out.  I think you can see that they are profiting with these tactics.  And you, the consumer, get left holding the bag on a thousand bucks or more.

Here’s the best solution even if you haven’t been involved in an accident:  CALL ME.

We can set up a meeting…bring your auto policy of insurance in, and we’ll go over issues like your current coverage, your economic status, the year and make of your car, and make recommendations to you on all types of coverage that you can potentially purchase.  So you’ll be a lot closer to “full coverage” than you are now.  And your family will be protected.

I look forward to hearing from you.  Even after 5pm, including

Saturday and Sunday.

After my accident…

..the other guy’s insurance company..

..fixed my car but said they didn’t have coverage..

..to pay for my injuries…

..my own company paid part of my medical bills..

..but said I don’t get anything more…

..because I don’t carry “uninsured motorist”

..coverage…is this true?

A:  Well, it wouldn’t be the first time in American that an insurance company has been a little less than forthcoming when talking to a claimant that is not represented by an attorney.

There are a couple of factors that come into play here.

Let’s look at “the other guy’s insurance company” first.

It sounds like the at fault driver in your case carried the state minimum insurance coverage to register and tag their vehicle.  Florida requires PIP (which would pay that driver’s medical expenses and lost wages without regard to fault but do nothing for you), and property damage liability.

That’s it.  Florida does not currently require bodily injury liability coverage, and that’s what it sounds like here…they had the coverage to pay for your car, but nothing for pain and suffering.

But…you won’t know that for sure unless the insurance company sends you an official, written declaration of their coverages.  I can put them on notice, in writing, and compel them to produce such a declaration.  And this costs you nothing unless I recover money for you.  You have to get paid for me to get paid, so you have nothing to lose and everything to gain.

That same law, called Florida’s disclosure law, says that as your legal representative if you choose to hire me, I can also put your own insurance company on notice and likewise compel them to declare coverages, to include whether or not you carried uninsured motorist protection for just such an instance.

In fact, if your insurance company in certain instances cannot produce a particular form showing you clearly rejected the coverage, including that it is properly signed and dated and the block where rejection is checked is initialed by you, then you get the coverage ( ! ).

And it gets better.  Even if you don’t have uninsured motorist protection on your own policy, if you have a relative who lives with you who has that coverage, most often you get the coverage.  And if you were occupying someone else’s car when an accident occurs, you can generally draw it (uninsured motorist coverage) from their policy as well.

So things are generally not quite as cut and dried as an insurance company would have you believe.  It doesn’t cost to have an attorney in these cases….it pays to have an attorney.

Yeah, I was in an accident a month ago…

The insurance company fixed my car okay…

…and my emergency room bills got paid…

…by my auto insurance…

..so I’m good to go, right?

A:  Maybe.  Like so many issues in life, often things seem to be okay when it’s really a bit more complex than it might first appear.

One of the things to consider is that people are generally “shaken up” in a car accident.  There’s a big “boom!” and often shattered glass, you’re wrenched around, perhaps just barely missing other cars, and it’s scary for anyone.  Since you’re in that state, often it’s a little difficult to think about the myriad of things coming at you in a time of need.  Suddenly, you have no way to get to work, the ambulance whisked you and/or a family member off to the hospital, bills are coming in, the insurance company is pressing you for a statement, and you’re not feeling up to par in the first place.

In the example you gave, since your car seems to be repaired to your satisfaction, looks okay, presumably paid for and also assuming you were in a rental car that was paid for during the repairs, let me ask you this:

What if the bumper on your car falls off next week?  Did you sign a property damage release for the insurance company?  If so, they may refuse to effect any further repairs even though the example I gave, that of a part falling off so soon after an accident repair, is undoubtedly related to the accident.

Are you sure the bills for that ambulance ride, the hospital and emergency room doctor, and the radiologist, are paid for at 100%?

Or could it have been at 80%, the amount prescribed with basic coverage by Florida’s No Fault Law?

And what if the insurance company failed to see to it that factory parts were used in the repair of your vehicle?  What if something fails a year from now?

A similar analogy concerns your body.  What may be a little soreness and/or stiffness right now in your neck, back, knee, or shoulder could get worse with time.  What if you “gut it out” only to find out months, or years, down the road that the condition has deteriorated and you’re much worse off than you thought you were?

It’s a minefield even if you think everything’s been taken care of.

And my consultation is free.  So even if you think “everything’s fine now”, why not avail yourself of a no pressure, free consultation, at least over the phone?  You may have benefits including a cash settlement coming that you didn’t even know about.

And that an insurance company darned sure isn’t going to tell you about.