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| Legal Questions and Links
Welcome to the page where you will find answers to common legal questions, as well as links to useful resources. How are damages calculated when a motor vehicle has been damaged? If it is practicable to repair the vehicle, the measure of damage is the reasonable cost to repair the vehicle, with due allowance for any difference between its value immediately before the accident and its value after repair. If however, the vehicle is a total loss, the measure of damage is the difference between the value of the vehicle immediately before the accident and its value immediately thereafter. Florida Standard Jury Instructions in Civil Cases, 6.2g. Is recovery permitted for loss of use of a damaged or totaled vehicle? The courts award damages for loss of use of a vehicle during the period of time reasonably required for its replacement or repair, as well as for towing and storage charges during that period. Florida Standard Jury Instructions in Civil Cases, 6.2g. Also, loss of use damages may be awarded even when no replacement vehicle is actually obtained. Alonso v. Fernandez, 379 So.2d 685 (Fla. 3d DCA 1980). The replacement vehicle is to be equipped equally to the vehicle it replaces. Meakin v. Dreier, 209 So.2d 252 (Fla. 2d DCA 1968) What happens when an adverse carrier has a lower estimate than the one on which your company paid? When you introduce evidence showing the cost of repair, you have made a prima facie case that the cost of repair was reasonable. The burden then shifts to the defendant to prove by a preponderance of the evidence that the repairs increased the value of the vehicle. Absent such proof, the plaintiff is awarded the full cost of repair. McHale v. Farm Bureau Mutual Insurance Company, 409 So.2d 239, 240 (Fla. 3d DCA 1982) Is interest awarded on the monies paid for property damage or bodily injuries? For property damage, interest begins accruing on the date a carrier pays for the damage. However, interest accrues on the insured’s deductible and out-of-pocket expense from the date of the accident. For personal injuries, prejudgment interest is not awarded. Argonaut Insurance Company v. May Plumbing, Co., 474 So.2d 212 (Fla. 1985). What is the prejudgment interest rate on property damage claims? In 2007, the rate is 11%. The rate was 10% in 2006; 7%in 2005 and 2004; and 6%in 2003. The rates are set on December 1 of each year for the following January pursuant to Section 55.03, Florida Statutes. What is the interest rate on judgments? Statutory interest accrues on all money judgments at the rate in effect on the day of the judgment for the life of the judgment. If my insured has executed a release, can I still pursue subrogation? You can still subrogate, so long as you can prove the adverse carrier had knowledge that your company paid the claim prior to the time it received the release from your insured. Lincoln National Health and Casualty Insurance Company v. Mitsubishi Motor Sales of America, Inc., 778 So. 2d (5th DCA 2001). When subrogation claims exceed the available policy limits, can an adverse carrier be forced to pay its limits without receiving a release of its insured? If you receive a judgment against the adverse carrier’s insured, your company becomes a third-party beneficiary of the policy and can insist on payment without execution of a release. If the adverse carrier fails to pay its limits, it could open itself up to a bad faith claim for the portion of the claim exceeding its limits. Thompson v. Commercial Union Insurance Company of New York, 250 So. 2d 259 (Fla. 1971). In any event, the adverse carrier’s insured can be pursued for the excess monies after the limits are paid. Is Florida a comparative negligence state? Yes. Therefore, subrogation can be pursued, as long as some percentage of liability can be placed on the tortfeasor. Section 768.81(2), Florida Statutes. Is there joint and several liability for tortfeasors? No. Courts enter judgments against liable parties based on their percentage of fault and not on the basis of joint and several liability. Section 768.81(3), Florida Statutes. However, joint and several liability exists for causes of action that accrued before April 26, 2006. If an owner of a vehicle can prove his vehicle was taken without permission or that it was used outside the scope of the permission he gave for its use, can a judgment nevertheless be obtained against the owner? The owner of a vehicle is liable for any use of his vehicle that does not constitute conversion or theft. Therefore, the owner is liable when he allows a person to use his vehicle who thereafter violates his explicit instructions or allows a third party to drive the vehicle without the owner’s permission. Union Air Conditioning Inc. v. Troxtell, 445 So.2d 1057 (Fla. 3d DCA 1984). Is a minor’s negligence imputable to the person who signed his driving application? Under Section 322.09 Florida Statutes, the signer and minor are jointly and severally liable for any negligent or willful misconduct of the minor while driving a motor vehicle. Is an employer liable when its employee negligently operates a motor vehicle in the course and scope of his employment? Yes, the employer is liable under the doctrine of respondeat superior, even if it did not own the vehicle operated by its employee. Hertz Corp. v. Rhode Island Hospital, 784 So.2d 506 (Fla. 5th DCA 2001). Does the Fair Debt Collection Practices Act apply to the collection of subrogation claims in Florida? No, the Eleventh Circuit has ruled that such debts are not consumer debts that are governed by the FDCPA. Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367 (11th Cir. 1998). When does the statute of limitations begin to run in automobile subrogation cases? In wrongful death cases, the statute begins to run on the date of death. Fulton County Administrator v. Sullivan, 753 So. 2d 549 (Fla. 1999). In negligence cases, the statute begins to run on the date of the accident. The date the carrier pays the claim is irrelevant. Allstate Insurance Company v. Metropolitan Dade County, 436 So.2d 976 (Fla. 3d DCA 1983). What statute of limitations is applicable to automobile subrogation cases? The limitations period is five years from the date of a debtor’s breach of a written agreement. The period is four years for negligence cases and only two years for wrongful death actions. Section 95.11, Florida Statutes. Are there special notice requirements for claims against Florida governmental entities? Yes, a statutory notice must be provided on or before the third anniversary of the accident, or else the claim will be barred. Section 768.28 (6)(a). Are insurers entitled to reimbursement for personal injury protection benefits? Subrogation is permitted against the owner of a commercial vehicle or its carrier where PIP benefits are paid to a passenger in a commercial vehicle or an insured who was struck by a commercial vehicle while not an occupant of a self-propelled vehicle. There are no other situations in which such benefits are payable under Section 627.7405, Florida Statutes. Can a carrier split its cause of action by filing a subrogation action for property damage before it pays an uninsured motorist claim for bodily injuries arising out of the same accident? Yes, insurance subrogation is an exception to the rule that all damages accruing to a person as the result of a single wrongful act must be claimed or recovered in the same action. Rosenthal v. Scott, 150 So.2d 433 (Fla. 1961). Does the “made whole” doctrine require insurers, who make subrogation recoveries from third parties, to pay their insureds for 100% of their deductibles when the insureds are partially responsible for their automobile accidents? No, negligent insureds are liable for the portion of their deductible reflecting their comparative negligence. Monte De Oca v. State Farm Fire & Casualty Insurance Company, 897 So.2d 471 (Fla. 2004). Arbitration Forums, Inc. Corporations, Division of Clerks of Court Websites Department of Highway Safety and Motor Vehicles Driver License Check FindLaw Florida Government Florida State Courts Florida Statutes Insurance Company Search National Association of Subrogation Professionals Rehabilitation and Liquidation, Division of Law Offices of Neil E. Polster, P.A. Phone: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. Copyright © 2008 by The Law Offices of Neil E. Polster, P.A. All rights reserved. You may reproduce materials available at this site for your own personal use and for non-commercial distribution. All copies must include this copyright statement. | | 
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