Personal Injury Law

Traffic Accident Injury

Florida DHSMV says that there are, on average, more than 700 vehicle accidents occur daily on our streets and highways. That’s an unbelievable total of more than 250,000 accidents per year! The result of these accidents is equally staggering because there are more than 200,0000 people seriously injured and more than 3,000 people are killed each year.

If you have been injured, mounting medical bills and lost wages can be quickly become overwhelming, and trying to understand the Florida No-Fault Law can be confusing to say the least. At The Law Offices of Martin Schwartz, we understand the tactics employed by the insurance companies to minimize your injuries and your compensation. We know how “no fault” insurance works in Florida and the options available for your specific case involving uninsured or under-insured motorists.

Traffic accident injuries often happen as a result of auto accidents which account for over 90% of all vehicle accidents in Florida. A simple moment of carelessness or distraction behind the wheel of a vehicle can forever change the lives of innocent victims. Even at low speeds, a collision can cause very serious injury and dramatically alter someone’s life.

Alcohol related crashes result in more than 22,000 accidents and more than 1,200 deaths annually. DUI is a serious crime.

Many drivers fail to renew or keep up with their insurance payments and thus, drive without insurance. When involved in an accident, many of them are tempted to flee the scene to avoid liability, heavy fines or jail. Hit-and-run accidents occur more than 3,300 times per year in Florida.

The Law Offices of Martin Schwartz aggressively represents clients injured by those who have been negligent and caused the injuries sustained. We are experienced in dealing with drunk driver cases and with those that are under-insured. As always, there are no attorney fees or costs unless we obtain recovery for you.

Violation of Traffic Laws as Proof of Negligence

In an automobile accident action against a driver for damages suffered in a car collision, the driver’s violation of a traffic law can be evidence of his or her negligence. The law calls negligence based upon the violation of a specific requirement of law “negligence per se.” Negligence per se means that as a matter of law negligence existed. While the violation of a traffic law is negligence as a matter of law, the violation does not mean that the driver is liable unless the negligence was the proximate cause of the plaintiff’s injury. Negligence is ordinarily a question for a jury. It only becomes a question of law when a court determines that only one conclusion can reasonably be drawn from the evidence. If the violation of the traffic law is treated as negligence per se, the question of negligence will not be given to the jury.

For a traffic law to set a minimum standard of care so that its violation is negligence per se, the courts have noted that the law must be one to promote safety; the plaintiff must be a member of the protected class; and the defendant must be a person upon whom the statute imposes specific duties. Some courts do not consider the violation of a traffic law to be negligence per se. Some consider it prima facie negligence. Other courts call it evidence of negligence. Another group of courts consider it negligence per se and, therefore, the proximate cause of the injury. Finally, another group of courts see it as negligence per se, but it is for the jury to decide whether the negligence proximately caused the injury.

Some courts state that while the violation of a traffic law is presumably negligence, the presumption is not conclusive. The presumption can be rebutted by proof that the act was justifiable or excusable under the circumstances. For instance, it is against the law to travel on a road at night without headlights and a driver, who does so, is in an accident. The driver could show that although he knew that the headlights were not working, the car was the only way to get his ill child to a hospital. In such a case, the decision of whether that driver was negligent under the circumstances goes to the jury.

Often, a question of whether a plaintiff is contributory negligent for his or her own injuries arises because the plaintiff violated a traffic law. If the violation of the law is negligence per se, the plaintiff must show that the negligence was not a contributory factor to the accident. In the case of a violation of a mandatory seat belt usage statute, most courts hold that it does not establish negligence as a matter of law or negligence per se for comparative fault purposes. A majority of jurisdictions do not allow evidence of seat belt use to reduce a plaintiff’s recovery.

Punitive Damages in Automotive Products Liability Actions

A plaintiff in an automotive products liability action is generally required to prove that a motor vehicle as sold contained a defect in its design, in the way in which it was manufactured or assembled, or in the failure to warn of a risk inherent in its operation that created an unreasonable risk of death, personal injury, or property damage when the vehicle was used for its intended purpose and that the defect caused an accident or similar incident, such as a vehicle fire, that resulted in the loss or damage for which the plaintiff seeks to recover damages. Because proof of the existence of such conditions does not involve passing judgment on the conduct of the manufacturer, but merely on the status of the vehicle as sold, the plaintiff in such a case can ordinarily recover only his or her actual damages, which can include economic losses and damages for non-economic losses based on the jury’s determination of the dollar value of the pain and suffering resulting from the accident. Sometimes, though, the manufacturer’s conduct in dealing with the alleged vehicle defect becomes an issue in the case, and the plaintiff may then attempt to recover punitive damages in addition to the actual damages suffered.

Punitive damages, sometimes called exemplary damages, are damages assessed against a defendant in a legal action in order to punish the defendant financially for the conduct that has resulted in the incident that gave rise to the action. Punitive damages in products liability cases are sought in situations where a manufacturer’s actions are alleged to exhibit what amounts to a heedless disregard for the safety of purchasers or users of a product. An example of conduct that might give rise to a claim for punitive damages in an automotive products liability case would be the failure to conduct a safety-related recall campaign on a group of vehicles after the manufacturer has obtained knowledge of an inordinate number of catastrophic failures of a part or assembly in those vehicles that has created an unreasonable risk of injury. A manufacturer may assert in response that its conduct was not such as to justify an award of punitive damages, or that the amount of punitive damages sought is out of proportion to any alleged misconduct by the manufacturer or to the actual damages suffered by the plaintiff.

The law of products liability, including automotive products liability law, has evolved in the United States over the course of more than half a century out of the separate legal systems of each of the states rather than from a single unified body of federal law. As a result, the legal standards governing awards of punitive damages in automotive products liability cases will vary from state to state.

Proof of Loss Obligations

When an insured has suffered a loss and wants to prove coverage under an automobile insurance policy, the insured must show the issuance and delivery of the policy, payment of the premium, a loss caused by a risk insured against, and notice and proof of loss to the insurance company. The proof of loss must give the insurance company adequate data from which it can determine its liability under the policy. The proof of loss must be in writing and set forth the injuries or damage sustained. A valuation of the loss should also be provided.

An insured can take a damaged automobile to an insurance company’s adjuster for an estimate of repair. The insurance company will then submit a proof of loss to the insured based on the adjuster’s contract for repairs. An insurance agent who issues an automobile insurance policy has no authority to waive a written proof of loss. An insured should not rely on such a “waiver.”

Insurance coverage can be forfeited if an insured fraudulently misrepresents items in a proof of loss. This forfeiture is authorized by statute. The fraud must be a deliberate false assertion of facts in the proof of loss. An inflated valuation of a claim is not necessarily fraud.

The proof of loss should contain whatever is required by the insurance policy. However, an insurance company cannot reject a written proof of loss because it does not contain a policy number or any other information that the insurance company already has. The failure of an insured to provide a proof of loss has been held to preclude recovery under the insurance policy.

Attorneys Retained by Auto Insurers

When a lawsuit is filed against an automobile insurance company’s insured for damages allegedly suffered by a claimant in an automobile accident with the insured, the insurance company has a duty to defend the insured. A part of the insurance company’s duty can be the right to retain an attorney for the insured’s defense and to pay that attorney’s fee. Because the insurance company selects and pays the defense counsel, questions arise regarding who is the attorney’s client and whether the attorney owes a duty to only the insured or to both the insured and the insurance company.

Whether an attorney represents the insured or the insurance company, there is a one-client relationship. If the attorney represents the insured, than he or she owes no duties to the insurance company. The attorney owes the insured a duty of loyalty, a duty to use his or her independent professional judgment, and a duty use every ethical means to lessen the insured’s exposure to liability. When an attorney represents the insured and the insurance company, there is a two-client relationship, also called a tri-partite relationship. The attorney still owes both clients the same duties. If a conflict of interest exists between the clients, the attorney must disclose the conflict to both clients and obtain their consent to continue the two-client representation.

The insurance company’s right to choose the attorney, who will defend its insured, can be found in the insurance policy. The duty to defend clause, the cooperation clause, the supplementary payments clause, and the voluntary payments condition are generally considered as the sources of the right. The same clauses also govern the extent of the insurance company’s rights and duties to defend. For instance, an insurance company cannot tell a retained attorney to stop representing the insured because the insurance company is concerned over the cost of the defense. Likewise, until the insurance company had discharged its duty to defend, it cannot stop the attorney’s representation because the insurance company has paid out the policy limit on the claim.

If an insurance company agrees to defend an insured in a lawsuit, but the insurance company reserves its right to challenge the coverage of the claim, some courts require the insurance company to retain and pay an attorney of the insured’s choosing. That attorney may be referred to as independent counsel. If the insurance company files an action in court regarding the coverage of the claim issue, it must continue to pay the retained attorney or the insured’s independent counsel until the coverage claim is decided in its favor.