Automobile Insurance SubrogationAutomobile Total Loss ThresholdsDeductible ReimbursementDiminution of ValueFirst Come, First Served: Subrogating Multiple Claims in Excess of Policy LimitsFuneral Procession Traffic LawsImputing Contributory Negligence of Driver to Vehicle OwnerLaws Regarding Using Cell Phones/Headphones/Texting While DrivingLoss Of UseMed Pay/PIP SubrogationOwner Liability For Stolen VehiclesPayment of Sales Tax After Vehicle Total LossPedestrian and Crosswalk LawsRental Car Company Physical Damage and Loss of Use ClaimsRental Car Company’s Liability Insurance Primary or ExcessSlower Traffic Keep RightSudden Medical Emergencies While DrivingSuspension of Drivers’ LicensesUse of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles
Federal , State, and Local Governmental EntitiesMunicipal/County/Local Governmental Immunity and Tort LiabilityState Sovereign Immunity And Tort Liability
General Tort Laws/StatutesAnti-Indemnity StatutesContribution ActionsContributory Negligence/Comparative FaultDog Bite LawsEconomic Loss DoctrineParental ResponsibilitySpoliationStatute of LimitationsStatute of Limitations Exceptions
Health Insurance SubrogationHealth and Disability Insurance
InvestigationAdmissibility of Expert TestimonyPre-Suit Disclosure of Liability Policy Limits in Third-Party ClaimsRecording Conversations
Product Liability SubrogationProduct Liability Law
Property Subrogation“Matching Regulations” And Laws Affecting Homeowners Property ClaimsCondominium/Co-Op Waiver of Subrogation LawsDamage to Property Without Market ValueGeneral Contractor Overhead And Profit Payments In First-Party ACV Property Damage ClaimsLandlord/Tenant Subrogation
Subrogation GenerallyAnti-Subrogation RuleCriminal RestitutionMade Whole DoctrineMedical Expenses, Insurance Write-Offs, and The Collateral Source Rule
Workers’ CompensationEmployee Leasing LawsHospital Lien LawsOCIP/CCIP Subrogation In Workers’ Compensation Construction CasesRecovery Of Increased Workers’ Compensation Premiums By EmployerWhich Workers’ Compensation “Benefits” Can Be Subrogated?Workers’ Compensation Subrogation Waiver EndorsementsWorkers’ CompensationWorkers’ Compensation Claims by Undocumented Employees
Automobile Insurance Subrogation
Automobile Total Loss Thresholds
Total Loss in Florida involves when and under what circumstances a salvage title is required. “Salvage” means a motor vehicle or mobile home which is a total loss. A vehicle is a total loss when:
Insured Vehicle: When carrier pays the owner to replace the vehicle with one of like kind or when it makes payment upon theft of vehicle.
Uninsured Vehicle: When the cost, at the time of loss, of repairing or rebuilding the vehicle is 80% or more of the cost of replacing the damaged motor vehicle with one of like kind.
However, carrier can declare vehicle a total loss or not depending on whether they believe settling for total loss requires less money than cost of repair. It is a business decision.
If insured and insurer agree to repair, rather than replace, vehicle is not total loss. However, if actual cost to repair exceeds 100% of replacement cost, vehicle must be branded “Total Loss Vehicle.” Therefore, vehicle can be repaired up to 100% of ACV before branding of title is required by statute. The “80%” simply means that if the cost to repair a damaged vehicle is 80% of its value or more, then if the vehicle is declared a total loss by the insurance company, that the salvage title returned on the salvage will be a “Certificate of Destruction” in the insurer’s name and not eligible to be rebuilt.
Insurance company does not have to “total” a vehicle if the costs of the repairs exceed 80% of ACV. The statute doesn’t require it, but most companies used it as a rule of thumb.
F.S.A. § 319.30(1)(t) and F.S.A. § 319.30(3)(a)(1)(a)(b).
Automobile: No applicable statute, Administrative Code provision or case law specifically setting forth a duty to reimburse a deductible. Florida law does not appear to recognize an affirmative right or cause of action by an insured against its insurer to be “made whole” beyond the payment of insurance policy proceeds. Instead, it appears that Florida law allows the “Made Whole” Doctrine as a defense used by insureds to protect the insured’s direct recovery from a tortfeasor, where the insured’s own insurer makes a subrogation claim upon the insured’s recovery. Pro-rata reimbursement probably required.
Auto insurer does not violate Made Whole Doctrine where it returns to its contributorily negligent insured a properly calculated prorated portion of insured’s collision deductible after recovery in subrogation action. Schonau v. GEICO Gen. Ins. Co., 903 So.2d 285, 287 (Fla. DCA 2005); Monte De Oca v. State Farm & Cas. Co., 897 So.2d 471 (Fla. DCA 2004).
Related Case Law: Schonau v. GEICO Gen. Ins. Co., 903 So.2d 285, 287 (Fla. DCA 2005); Monte De Oca v. State Farm Fire & Cas. Co., 897 So.2d 471 (Fla. DCA 2004).
Diminution of Value
First Party: Courts have held that that an auto collision policy which provides that the insurer must repair or replace the damaged vehicle “with other of like kind and quality” does not require the insurer “to compensate the insured in money for any diminution in market value after the insurer completes a first-rate repair which returns the vehicle to its pre-accident level of performance, appearance, and function.” Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732 (Fla. 2002).
Third Party: Florida courts have held that “the cost of the repairs made plus the diminution in value will ordinarily be the proper measure of damages, with the burden on the plaintiff to prove in addition to the cost of repairs, that he suffered the additional damage of diminution of value by virtue of the vehicle having been involved in the accident.” McHale v. Farm Bureau Mut. Ins. Co., 409 So.2d 238, 239 (Fla. Dist. Ct. App. 1982); Airtech Serv., Inc. v. MacDonald Constr. Co., 150 So.2d 465 (Fla. App. 1963). In McHale, Florida’s Third District Court of Appeal describes Airtech as “not a ‘cost-of-repair’ case, but a ‘total destruction’ case.” McHale, 409 So.2d at 239. It is not necessary for the vehicle to be sold before damage for diminished value is realized and can be recovered. Meakin v. Dreier, 209 So.2d 252 (Fla. App. 1968).
First Come, First Served: Subrogating Multiple Claims in Excess of Policy Limits
There is a split of authority in Florida over whether a liability insurer must reasonably investigate all multiple claims being presented to it prior to payment of any one claim, keep the insured tortfeasor informed of the claims process, and attempt to minimize possible excess judgments against the insured tortfeasor.
A 4th District Court of Appeals decision caused a split of authority among the 2nd, 5th and 4th Florida District Courts of Appeal over the duties of a liability insurer faced with multiple claims in excess of policy limits. Farinas v. Florida Farm Bur. Gen. Ins. Co., 850 So.2d 555 (Fla. App. 2003). In Farinas, the court approved of a 5th Circuit opinion which held that an insurer should not exhaust available policy proceeds without an attempt to settle as many claims as possible. Liberty Mutual Ins. Co. v. Davis, 412 F.2d 475 (5th Cir. 1969) (applying Florida law); see also Boston Old Colony Ins. Co. v. Gutierrez, 386 So.2d 783 Fla. 1980) (did not address multiple, competing claims. Instead, only required the insurer, among other things, to “investigate the facts.”). The Florida Supreme Court had also chimed in that the insurer should advise the insured of settlement opportunities, the probable outcome of the litigation, the possibility of an excess judgment and any steps that she may take to avoid an excess judgment. Gutierrez, supra. Farinas declared that an insurer in such a position must conduct a full investigation of all competing claims arising out of an accident before endeavoring to settle any one individual claim, while keeping the insured informed at all junctures of the process.
The Middle District of Florida applied the Farinas factors to a multiple-claimant situation under Florida law. General Security Nat’l Ins. Co. v. Marsh, 303 F.Supp.2d 1321 (M.D. Fla. 2004). In Marsh, the liability carrier settled a wrongful death claim, exhausting the policy limits even though there was a remaining serious injury claim. The evidence indicated that the injury claim was worth less than the wrongful-death claim. Under those circumstances, the insurer was entitled to summary judgment applying the standards announced in Farinas. The court found that the insurer acted reasonably and in good faith when it settled with the deceased claimant’s estate to the exclusion of the injured survivor. Id.
Given the split of authority, the Farinas court certified the question to the Supreme Court of Florida. The Supreme Court never addressed the question.
The liability carrier’s ability to settle with one of several claimants when it has limited policy limits hinges on the concept of good faith. Florida holds insurers to “that degree of care and diligence which a man of ordinary care and prudence should exercise in the management of his own business.” Automobile Mutual Indem. Co. v. Shaw, 184 So.2d 852 (Fla. 1938). At the same time, Florida approves the prevailing rule that the insurer must act in good faith toward the insured in its effort to negotiate a settlement. Id.
Efforts to achieve a prorated, comprehensive settlement with one of several claimants may excuse an insurer’s reluctance to settle with less than all of the claimants, but need not do so. It is a question for a jury, which must bear in mind the existence of multiple claims and the insured’s exposure to heavy damages as it answers the question of whether the insurer acted in good faith in managing the proceeds in a manner reasonably calculated to protect the insured by minimizing his total liability. Liberty Mut. Ins. Co. v. Davis, 412 F.2d 475 (5th Cir. 1969) (applying Florida law); see also Fidelity & Casualty Co. of New York v. Cope, 444 So.2d 1041 (Fla. App. 1984) decision quashed, 462 So.2d 459 (Fla. 1985).
When several claimants are involved, and liability is evident, rejection of a single offer to compromise within policy limits does not necessarily conflict with the interest of the insured. The insured hopes to see the insurance fund used to compromise as much of his potential liability as possible. Of course, if the fund is needlessly exhausted on one claim, when it might cancel out others as well, the insured suffers from the company’s readiness to settle. Davis, supra.
Funeral Procession Traffic Laws
Florida law defines a funeral procession as two or more vehicles accompanying the body of a dead person in the daytime when all vehicles have their headlights lit. The lead vehicle, if not a law enforcement vehicle, must have a flashing amber light. The law requires all pedestrians and vehicles, except emergency vehicles, to yield right-of-way to the procession. If the lead vehicle enters an intersection legally, the other vehicles may follow it regardless of a changing traffic signal, stop sign, or yield sign provided they exercise due care to prevent collisions. Other drivers are prohibited from driving between vehicles in the procession, if their headlights are on, unless directed by a police officer. Fla. Stat. § 316.1974.
Imputing Contributory Negligence of Driver to Vehicle Owner
Imputed Contributory Negligence Law: Driver’s negligence is not imputed to the owner-in an action by the latter directly against the actively negligent driver. Weber v. Porco, 100 So.2d 146 (Fla. 1958); Kaczmarek v. Kelly, 479 So.2d 222 (Fla. App. 1985).
Vicarious Liability/Family Purpose Doctrine: No Family Purpose Doctrine.
Florida judicially imposes strict vicarious liability on any owner (not just head of family) who entrusts vehicle to an individual whose negligent operation of the vehicle causes injury or property damage. Florida is the only state with this strict vicarious liability law. Aurbach v. Gallina, 753 So.2d 60 (Fla. 2000).
Sponsor Liability for Minor’s Driving: F.S.A. § 322:09: Any negligence or willful misconduct of the minor when driving a motor vehicle shall be imputed to the person who signed the application. The minor and his parent or guardian will be jointly and severally liable for any damages caused by the minor’s misconduct.
Laws Regarding Using Cell Phones/Headphones/Texting While Driving
Cell Phone/Texting: A person operating a motor vehicle may not use their wireless phone to text, e-mail, etc., while the vehicle is in operation. F.S.A. § 316.305.
No applicable law on using cell phones to talk while driving or requirements that it must be hands-free.
Other Prohibitions: You cannot operate a motor vehicle while wearing a headset, headphone, or other listening device, other than a hearing aid. Exceptions include law enforcement equipped with any communication device that is necessary to their duties, motorcyclists who use a headset inside their helmet and headsets that only cover one ear. F.S.A. § 316.304.
Comments: Regulation of cell phone use is preempted to the state. F.S.A. § 316.0075
Loss Of Use
Loss of Use: Yes. Florida courts have noted that the Restatement (Second) of Torts loss of use provision applies to tort actions involving a damaged motor vehicle so as to include a separate claim for loss of use damages. Damages may amount to the reasonable rental value of a substitute vehicle during repairs, regardless of whether a rental vehicle was actually obtained or whether the vehicle is a pleasure automobile. Meakin v. Dreier, 209 So.2d 252 (Fla.2d Dist. 1968); Alonso v. Fernandez, 379 So.2d 685, 687 (Fla. App. 1980). Loss of use damages are only available when an owner suffers a complete deprivation of their property, which includes time for repair when the property cannot be used. AT & T Corp. v. Lanzo Const. Co., 74 F.Supp.2d 1223 (S.D. Fla. 1999). Loss of use recovery does not require actual rental of another vehicle. Meakin v Dreier, supra. Courts have determined that loss of use special damages may be awarded in the event of a total loss. Wajay Bakery, Inc. v Carolina Freight Carriers Corp., 177 So.2d 544 (Fla. App. 1965).
Lost Profits: No. When the measure of damages involves the loss of use of property used in a business, “profits” allegedly lost because of the loss of use of the property is a concept subject to too many variables to be properly used as a measure of the value of loss of use of the property and the best evidence of lost use value of property is the actual or theoretical reasonable rental value of similar property. Maryland Cas. Co. v. Fla. Produce Distributors, Inc., 498 So.2d 1383 (Fla. Dist. Ct. App. 1986).
Comments: The Florida Supreme Court’s Standard Jury Instructions for civil cases provides for loss of use in property damage claims, noting that the jury should also “take into consideration any loss to (claimant) [for towing or storage charges and] by being deprived of the use of [his] [her] [its] (name property) during the period reasonably required for its [replacement] [repair].”
Florida Standard Jury Instructions: 501.2 Personal Injury and Property Damages: Elements
Standard Jury instructions available HERE.
Med Pay/PIP Subrogation
Med Pay: There is some dispute regarding the subrogation of Med Pay in Florida. Allstate v. Rudnick, 761 So.2d 289 (Fla. 2000) declared Med Pay benefits are collateral source under F.S.A. § 768.76 (2000), but not whether Med Pay benefits were a type of “collateral source” which was subrogable under § 768.76(3). Rodriguez v. Travelers Ins. Co., 367 So.2d 687 (Fla. 3d DCA 1979), approved, 387 So.2d 341 (Fla. 1980) appears to support Med Pay subrogation and so does Despointes v. Florida Power Corp., 2 So.3d. 360 (Fla. App. 2008).
PIP: Subrogation generally prohibited by § 627.736(3). PIP benefits are set off from any verdict or recovery under § 627.736(3). Exceptions: Subrogation allowed if either vehicle involved is “commercial motor vehicle” not required to carry PIP. Carrier paying PIP benefits on a private passenger motor vehicle has a right of reimbursement against the owner or the insurer of a commercial motor vehicle, if the benefits paid result from such person having been either (1) an occupant of the commercial motor vehicle, or (2) having been struck by the commercial motor vehicle while not an occupant of any self-propelled vehicle. F.S.A. § 627.7405. In addition, subrogation is allowed against an uninsured tortfeasor. F.S.A. § 627.733(4).
- No-Fault State. Verbal threshold. Minimum of $10,000 in PIP coverage required. Suit against another insured vehicle allowed only if reaches “tort threshold” of (1) significant and permanent loss of bodily function, (2) permanent injury, (3) scarring or disfigurement, or (4) death. Even if the plaintiff doesn’t reach tort threshold, it can still recover 20% of past medical expenses and 40% of lost income not payable under no-fault. Tortfeasor liable for medical expenses and lost wages that exceed PIP limits.
Made Whole: Can be overridden with Plan language. Florida Farm Bur., Inc. v. Martin, 377 So.2d 827 (Fla. App. 1979).
Statute of Limitations: The four (4) year statute of limitations runs from the date of injury. F.S.A. § 95.11(3)(a) (1997). Subrogation for Med Pay must wait for insured’s BI claim to resolve. If third-party liability policy is depleted, insurer can subrogate against UIM policy.
Owner Liability For Stolen Vehicles
Key In The Ignition Statutes: F.S.A. § 316.1975(1).
Common Law Rule: Liability cannot be imputed to a vehicle owner for injuries caused by a thief. Conversion or theft negates vicarious liability and is an exception to the dangerous instrumentality doctrine. Frank v. Wyatt, 869 So.2d 763 (Fla. 1st DCA 2004); Hertz Corp. v. Jackson, 617 So.2d 1051 (Fla. 1993).
Payment of Sales Tax After Vehicle Total Loss
First-Party Claims: When the insurance policy provides for the adjustment and settlement of first-party auto total losses on the basis of ACV or replacement with another of like kind and quality, the insurer must pay sales tax. Any deviation from this method must be supported by documentation. The insurer must include an itemized list stating the amount of the claim attributable to the value of the auto and the amount attributable to the sales tax. F.S.A. § 626.9743.
Third-Party Claims: Third-party insurers must follow the same rules as first-party insurers. Any deviation from those rules must be supported by documentation giving particulars of the auto condition, and all deviations must be “measurable, discernible, itemized and specified as to dollar amount.” F.S.A. § 626.9743(5)(C).
Pedestrian and Crosswalk Laws
F.S.A. § 316.130: Vehicles must yield to pedestrians in crosswalk when pedestrians are on vehicle’s half of road. Pedestrians must not leave curb when vehicles are close.
F.S.A. § 316.130: Pedestrians must yield to cars when outside of crosswalks. No crossing diagonally. At intersections with traffic signals, pedestrians must use crosswalk to cross.
Summary: Pedestrian was struck after stopping car on side of road to lend aid to another vehicle. Failure to not walk on the left side of the road under these circumstances was not prima facie evidence of negligence. Hagan v. Knobloch, 186 So.2d 525 (Fla. Dist. Ct. App. 1966), cert. denied, 192 So.2d 498.
Rental Car Company Physical Damage and Loss of Use Claims
Recovery From Renter: Recovery of physical damage and loss of use are not prohibited or otherwise regulated. Terms of rental agreement control. Collision Damage Waivers not regulated.
Recovery From Third-Party: Loss of use damages allowed generally. Nothing specifically governing recovery by car rental companies. Damages may amount to the reasonable rental value of a substitute vehicle during repairs, regardless of whether a rental vehicle was actually obtained or whether the vehicle is a pleasure vehicle. Meakin v. Dreier, 209 So.2d 252 (Fla.2d Dist. 1968); Alonso v. Fernandez, 379 So.2d 685, 687 (Fla. App. 1980); Badillo v. Hill, 570 So.2d 1067 (Fla. App. 1990). When the measure of damages involves the loss of use of property used in a business, “profits” allegedly lost because of the loss of use of the property is a concept subject to too many variables to be properly used as a measure of the value of loss of use of the property and the best evidence of lost use value of property is the actual or theoretical reasonable rental value of similar property. Maryland Cas. Co. v. Fla. Produce Distributors, Inc., 498 So.2d 1383 (Fla. Dist. Ct. App. 1986).
Rental Car Company’s Liability Insurance Primary or Excess
Summary: A car rental company’s liability coverage is primary unless the rental agreement sets forth the following in 10-pt. font: “The valid and collectible liability insurance and personal injury protection insurance of any authorized rental or leasing driver is primary for the limits of liability and personal injury protection coverage required by §§ 324.021(7) and 627.736, Florida Statutes.” This shifting provision operates only when there is coverage to which liability can be shifted. Shivers. v. Enterprise Leasing Co., 950 So.2d 494 (Fla. App. 2007); Rosati v. Vaillancourt, 848 So.2d 467 (Fla. App. 2003).
Slower Traffic Keep Right
Statute: F.S.A. § 316.081(1), (2), and (3)
Summary: Florida requires motorists to drive in the right-most lane except when passing other vehicles or when an obstruction makes it necessary to drive to the left of the center of the highway. Slower vehicles in left lane must yield to faster vehicles.
Sudden Medical Emergencies While Driving
Sudden and Unexpected Loss of Capacity Defense. The operator of an automobile who unexpectedly loses consciousness or becomes incapacitated is not chargeable with negligence as a result of his or her loss of control. Feagle v. Purvis, 891 So.2d 1096 (Fla. App. 2004); Bridges v. Speer, 79 So.2d 679 (Fla. 1955).
To establish the defense of sudden and unexpected loss of capacity or consciousness, the defendant must prove (1) defendant suffered a loss of consciousness or capacity, (2.) the loss of consciousness occurred before the negligent conduct, (3.) the loss of consciousness was sudden, and (4.) the loss of consciousness was neither foreseen nor foreseeable. Abreu v. F.E. Dev. Recycling, Inc., 35 So.3d 968 (Fla. App. 2010).
Suspension of Drivers’ Licenses
Administrative Suspension: Thirty (30) days after receipt of notice, the Department will suspend the license of any party to the crash who didn’t have the required liability insurance. F.S.A. § 324.051(2). The license will be reinstated upon payment of fee and proof of insurance, but will remain suspended for three (3) years until the uninsured driver complies. F.S.A. § 324.071.
Judgment: When a judgment is obtained against an uninsured tortfeasor and the judgment remains unsatisfied after thirty (30) days, the judgment creditor can request in writing that the court forward a certified copy of the judgment to the Department of Highway Safety and Motor Vehicles, who will suspend the driver’s license/registration of the judgment debtor. F.S.A. § 324.121(a). The license suspension shall be sustained until the said judgment is satisfied or stayed. F.S.A. § 324.131.
Contact Information: State of Florida, Department of Highway Safety and Motor Vehicles, Bureau of Financial Responsibility, Neil Kirkman Building, 2900 Apalachee Parkway, Room B260F, MS 87, Tallahassee, FL 32399-0585, (850) 617-2000, http://www.flhsmv.gov.
Use of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles
Authority: F.S.A. § 501.30 to 34.
Summary: The insurer and/or the repair shop must notify the consumer of the use of non-OEM parts by identifying the non-OEM parts in the written estimate. Additionally, a disclosure must be attached to the estimate informing the consumer that the part manufacturer or distributor warrants the non-OEM parts, not the auto manufacturer.
Federal , State, and Local Governmental Entities
Municipal/County/Local Governmental Immunity and Tort Liability
Florida Sovereign Immunity Statute: Government entities (including counties and municipalities) liable for damages resulting from negligent acts of public employees in the scope of their employment, if a private person would be liable under similar circumstances. F.S.A. § 768.28(1) (1973).
Notice Deadlines: Notice of claim must be given within three (3) years (two (2) years for wrongful death and six (6) months after settlement for contribution claims). F.S.A. § 768.28(14). File suit after denial or after six (6) months. F.S.A. § 768.28(6)(d).
Statute of Limitations: Suit must be filed within four (4) years after claim accrues. F.S.A. § 768.28(14).
Claims/Actions Allowed: Four categories of public duty doctrine acts: (1) Legislative, permitting, licensing: Immune. (2) Law enforcement. Immune. (3) Capital improvement/ property control: Liability of private person. (4) Professional, educational, and general services: Duty of care. F.S.A. § 768.28.
A. Discretionary Government Act: (1) Does act involve governmental policy, program, or objective? (2) Is act essential to accomplish that policy, program, or objective? (3) Does act require exercise of policy evaluation, judgment, and expertise? (4) Does the government agency possess the legal authority and duty to do the activity? If these questions can be answered “yes”, the government act is “discretionary.”
B. Public Duty Doctrine: See CLAIMS/ACTIONS ALLOWED.
Damage Caps: $200,000 per person. $300,000 per occurrence. Limit may be increased if municipality has liability limits in excess of this. Judgment in excess of statutory limits recoverable only if specially authorized by legislature. F.S.A. § 768.28(5).
State Sovereign Immunity And Tort Liability
Tort Claims Act: Florida’s Sovereign Immunity Statute.
Government entities may be liable for damages resulting from negligent or wrongful action of public employees in the scope of their employment, if a private person would be liable in similar circumstances. F.S.A. § 768.28(1) (1973).
Notice Deadlines: An action may not be brought against the State or one of its agencies, unless claimant presents the claim within three years after such claim accrues. For wrongful death claim, it must be presented within two years. F.S.A. § 768.28 (6)(a).
Claims/Actions Allowed: Operational functions, such as negligently driving a motor vehicle, are not covered within the discretionary act exception. Kaisner v. Kolb, 543 So.2d 732 (Fla. 1989).
Comments/Exceptions: Public duty exception. A governmental entity is not liable for a tort caused by the breaching of a duty owed to the public at large. Lewis v. City of St. Petersburg, 98 F. Supp.2d 1344 (M.D. Fla. 2000) aff’d in part, rev’d in part, 260 F.3d 1260 (11th Cir. 2001). Discretionary Function Exception. A governmental agency is immune from tort liability based upon actions that involve discretionary functions. Cook ex rel. Estate of Tessier v. Sheriff of Monroe County, Fla., 402 F.3d 1092 (11th Cir. 2005).
Damage Caps: The State shall not be liable to pay a claim to any one person which exceeds the sum of $200,000 or $300,000 for any claim arising out of the same incident or occurrence. F.S.A. § 768.28 (5). No punitive damages against the State. F.S.A. § 768.28 (5).
General Tort Laws/Statutes
Prohibits Intermediate Indemnity. Applies to Construction Contracts or Agreements. Fla. Stat. § 725.06.
Applicable to contracts entered into after July 1, 2001.
Pure Several Liability. Removed joint and several liability in 2006. Now a system of pure comparative fault – does not apply to certain actions, including intentional torts. F.S.A. § 768.81; T&S Enterprises Handicap Accessibility, Inc. v. Wink Indus. Maint. & Repair, Inc., 11 So.3d 411 (Fla. App. 2009). Contribution is the legal doctrine that allows a tortfeasor to collect from others responsible for the same tort after the tortfeasor has paid more than his or her pro rata share, wherein the shares represent the percentage of fault attributable to each of the tortfeasors. Section 768.31 states that a party can only seek contribution when a tortfeasor has paid more than his “pro rata share of the common liability, and the tortfeasor’s total recovery is limited to the amount paid by her or him in excess of her or his pro rata share.” Therefore, § 768.31 and Florida’s Comparative Fault Statute, § 768.81 are somewhat in conflict because the latter restricts a tortfeasor’s contribution beyond his own pro rata share of the entire liability.
In T&S Enterprises Handicap Accessibility, Inc. v. Wink Indus. Maintenance & Repair, Inc., 11 So.3d 411 (Fla. App. 2009), the court held that the abolition of joint and several liability acts to defeat all third-party causes of action for contribution. Because judgment is now entered purely on a pro rata finding of fault, there is no longer a need to seek recovery from a non-party joint tortfeasor. A defendant who intends to place fault on a non-party joint tortfeasor is required to plead such as an affirmative defense and prove the fault of that non-party as a Fabre Defendant (non-party defendant whom a party defendant asserts is wholly or partially responsible for the negligence alleged by plaintiff pursuant to § 768.81(3). To allocate fault to a “Fabre defendant”, it must (a) plead the fault of the non-party and identify the non-party in an affirmative defense, and, (b) prove at trial by a preponderance of evidence the fault of the non-party (the Fabre defendant) causing plaintiff’s injuries in order to get that non-party on the verdict form for purposes of having the jury allocate damages to the non-party.
When a release is given in good faith to one of two or more persons liable in tort for the same injury, it does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless it so provides. It does reduce the claim against the others to the extent of the amount of the settlement and It discharges the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor. F.S.A. § 768.31. Boca Raton Transp., Inc. v. Zaldivar, 648 So.2d 812, 813 (Fla. App. 1995).
Section 768.31(5) requires that the settling parties act in good faith with respect to the non-settling ones. Am. States Ins. Co. v. Kransco, 641 So.2d 175, 177 (Fla. Dist. Ct. App. 1994). “Individuals not participating in the settlement are barred from seeking contribution only if the settling parties acted in good faith with respect to them.” International Action Sports, Inc. v. Sabellico, 573 So.2d 928, 930 (Fla. App. 1991). Good faith “consists of a good faith determination of relative liabilities.” Am. States Ins. Co., 641 So.2d at 177. Factors that are considered in determining good faith are the amount of settlement, the depositions of settling parties, and any evidence of collusion or bad faith. See Seaboard System R.R., Inc. v. Goforth, 545 So.2d 482, 483 (Fla. App. 1989).
Equitable subrogation can be used to allow an initial tortfeasor held liable for the entirety of a personal injury plaintiff’s damages to recover from a subsequent tortfeasor whose negligence (e.g., medical malpractice) exacerbated plaintiff’s injuries. Underwriters at Lloyds v. City of Lauderdale Lakes, 382 So.2d 702 (Fla. 1980).
The statute of limitations is one (1) year after judgment. F.S.A. § 768.31(d)(2). If no judgment, must discharge liability within underlying statute of limitations period and file contribution action within one (1) year after payment. F.S.A. § 768.31(d)(1). For contribution against state or local government, six (6) months after settlement for contribution claims. F.S.A. § 768.28(14).
Contributory Negligence/Comparative Fault
Pure Comparative Fault: Damaged parties can recover even if 99% at fault. If plaintiff is at fault, that percentage will diminish proportionately the amount he is entitled to recover. F.S.A. § 768.81(2).
Dog Bite Laws
Dog owner can be found liable upon first bite, but comparative fault of victim can reduce damages by the percentage the victim is found liable. Dog owner not liable if they post an easily readable “Bad Dog” sign. Fla. Stat. § 767.04.
Economic Loss Doctrine
Majority Rule. Florida’s “Independent Tort Doctrine” (ITD) has eclipsed the ELD in that state. The ITD bars a plaintiff from pursuing a tort action where a contract created the duty to act, performance is measured against the contractual obligations, and the contract provides the remedy for defective performance. Tiara Condo. Ass’n, Inc. v. Marsh & McLennan Cos. Inc., 110 So.3d 399 (Fla. 2013). In effect, it prevents raising a tort cause of action that restates a breach of contract action. The Economic Loss Doctrine applies in only two situations: (1) where the parties are in contractual privity and a party seeks to recover tort damages for matters arising out of the contract, or (2) where the defendant is a manufacturer or distributor of a defective product which damages itself but does not cause personal injury or damage to any other property. Indemnity Ins. Co. of North America v. American Aviation, Inc., 891 So.2d 532 (Fla. 2004). The ELD is still in use, but it is mainly applied in cases involving product liability. Id. The ELD bars tort actions when the plaintiff has not suffered damages to property other than the damaged product itself. Simply put, the ELD is a judicially created Doctrine that sets forth the circumstances under which a tort action is prohibited if the only damages suffered are economic losses. Indem. Ins. Co. of N. Am. v. Am. Aviation, Inc., 891 So.2d 532 (Fla. 2004). The exact origin of the ELD is subject to some debate and its application and parameters are somewhat ill-defined. Moransais v. Heathman, 744 So.2d 973 (Fla. 1999). In Casa Clara Condominium Ass’n, Inc. v. Charley Toppino and Sons, Inc., 620 So.2d 1244 (Fla. 1993), Florida recognized the ELD as “the fundamental boundary between contract law, which is designed to enforce the expectancy interests of the parties, and tort law, which imposes a duty of reasonable care and thereby encourages citizens to avoid causing physical harm to others.” Florida relied on East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858 (1986) when it adopted the ELD. Florida Power & Light Co. v. Westinghouse Elec. Corp., 510 So.2d 899 (Fla. 1987). However, Florida recognizes several exceptions below, including allowing claims for torts committed independently of the breach of contract, such as fraudulent inducement and negligent misrepresentation, and claims for which they found public policy prohibits limiting liability, such as claims for professional negligence.
Service Contracts. The ELD does not apply to service contracts. Indem. Ins. Co. of N. Am. v. Am. Aviation, Inc., supra. It applies to homeowners. Casa Clara Condo. Ass’n v. Charley Toppino & Sons, Inc., supra.
No Alternative Theory of Recovery. Florida recognizes a “no alternative theory of recovery” exception to the ELD. Airport Rent-a-Car, Inc. v. Prevost Car, Inc., 660 So.2d 628 (Fla. 1995). However, this exception applies only when there is a supervisory relationship between the parties. A.R. Moyer, Inc. v. Graham, 285 So.2d 397 (Fla.1973). Therefore, after the 2013 limitation of the ELD, it has little application to product liability cases.
Privity of Contract. In 2004, the Florida Supreme Court further declared that the ELD did not bar a tort action against a company which was neither a manufacturer nor distributor of a product, as the parties were not in privity of contract. Am. Aviation, Inc., supra. The ELD applies where the parties are in contractual privity or the defendant is a manufacturer of a product. Id. Lack of privity is a defense if it is a service rather than product liability.
Statutory Violation. Another exception to the ELD is for statutory violations. Comptech Int’l, Inc. v. Milam Commerce Park, Ltd., 753 So.2d 1219 (Fla. 1999).
Other Property. Florida recognizes an exception to the ELD if there is damage to property other than the product. Indem. Ins. Co. of N. Am. v. Am. Aviation, Inc., 891 So.2d 532, 536 (Fla. 2004). Little precedent exists delineating the border between “property” and “other property” under the Economic Loss Rule. A roof of a building is an integral part of the building. Pulte Home Corp. v. Osmose Wood Preserving, Inc., 804 F. Supp. 1471 (M.D. Fla. 1992). A seawall is an integrated component part of a house, pool, and patio, despite the fact that it is physically distinctive and geographically separate from the other parts of the house. The “product” is the home with all of its component parts. Fishman v. Boldt, 666 So.2d 273 (Fla. App. 1996). The analysis isn’t as simple as determining whether the product “came with” the finished product. For example, an under counter coffee maker which came with a motor home was not an “integral component” of the motor home and the home constituted “other property” in an action against the manufacturer of the coffee maker, Black & Decker. McAteer v. Black & Decker, Inc., 1999 WL 33836701 (M.D. Fla. 1999).
Sudden and Calamitous Event. Florida has rejected the “sudden, calamitous event” exception. Casa Clara Condo, Ass’n, supra; Airport Rent-a-Car, Inc. v. Prevost Car, Inc., supra.
Application To Cases Not Involving Product Liability. Despite its underpinnings in the products liability context, the ELD was, over time, applied to other circumstances when the parties have entered into a contract and one party seeks to recover damages in tort for matters arising from the contract. However, that came to an end with the court’s decision in Tiara Condo. Ass’n, Inc. v. Marsh & McLennan Companies, Inc., supra.
Manufacturer Or Distributor In A Commercial Relationship. A manufacturer or distributor in a commercial relationship has no duty beyond that arising from its contract to prevent a product from malfunctioning or damaging itself. Indem. Ins. Co. of N. Am. v. Am. Aviation, Inc., 891 So.2d 532 (Fla. 2004).
Breach of Warranty. A warranty claim, whether implied or express, against a supplier of a product is barred if there is no privity between the injured party and the supplier. T.W.M. v. American Medical Systems, Inc., 886 F. Supp. 842 (N.D. Fla. 1995). In T.W.M., the plaintiff was injured from a defective implant which the plaintiff did not purchase from the manufacturer, but had surgically implanted by a doctor. Although the written opinion does not clarify whether a manufacturer’s written warranty was delivered as part of the deal, it does make the following broad statement:
The law of Florida is that to recover for the breach of a warranty, either express or implied, the plaintiff must be in privity of contract with the defendant. Kramer v. Piper Aircraft Corp., 520 So.2d 37 (Fla. 1988); West v. Caterpillar Tractor Co., 336 So.2d 80 (Fla. 1976). “Privity is required in order to recover damages from the seller of a product for breach of express or implied warranties.” Intergraph Corp. v. Stearman, 555 So.2d 1282, 1283 (Fla. 2d DCA 1990).
Extraordinary Circumstances. In order to proceed on a common law negligence claim based solely on economic loss, there must be some sort of link between the parties or some other extraordinary circumstance that justifies recognition of such a claim. Tank Tech, Inc. v. Valley Tank Testing, L.L.C., 244 So.3d 383 (Fla. App. 2018); Monroe v. Sarasota County School Bd., 746 So.2d 530 (Fla. App. 1999) (holding that the general rule is “that bodily injury or property damage is an essential element of a cause of action in negligence,” but recognizing that essential element could be waived “under extraordinary circumstances which clearly justify judicial interference to protect a plaintiff’s economic expectations”); Limones v. Sch. Dist. of Lee Cty., 161 So.3d 384, 389 n.5 (Fla. 2015) (“Of course, as McCain [593 So.2d at 503–04] acknowledges, some facts must be established to determine whether a duty exists, such as the identity of the parties, their relationship, and whether that relationship qualifies as a special relationship recognized by tort law and subject to heightened duties.”); DaimlerChrysler Ins. Co. v. Arrigo Enters., 63 So.3d 68, 74 (Fla. 4th DCA 2011) (“The existence of a legal duty means that a defendant stands in a ‘relation to the plaintiff as to create [a] legally recognized obligation of conduct for the plaintiff’s benefit.’”(quoting Biglen v. Fla. Power & Light Co., 910 So.2d 405, 408 (Fla. 4th DCA 2005).
Minor’s Driving. Person verifying driver’s license jointly and severally liable. F.S.A. § 322.09. The limits of liability are unlimited.
Vandalism. Parents liable for willful destruction or theft of property. F.S.A. § 741.24. The limits of liability are unlimited up to the value of the actual damage. Child must be under 18-years-old.
No Independent Cause of Action For First-Party Spoliation: An early case concerning lost patient records gave Florida courts their first opportunity to fashion a claim for “negligent failure to preserve evidence.” In Bondu v. Gurvich, 473 So.2d 1307 (Fla. 3rd D.C.A. 1985), the court recognized that this new tort had been addressed in other states and asked the threshold question “whether there is a duty owed to the plaintiff by the defendant which the law recognizes.” It held that there was a duty in the statutes at the time which required a hospital to maintain records of patients and produce them upon request. The plaintiff was found to have stated a cause of action for “negligent failure to preserve evidence” because she alleged that she could not prove her cause of action against the doctor practicing at the hospital. The court discussed the elements of negligence: (1) existence of a duty; (2) breach of that duty; and (3) damages caused by the breach. The Florida Supreme Court later determined in Martino v. Wal-Mart Stores, Inc., 908 So.2d 342 (Fla. 2005), that the remedy against a first-party defendant for spoliation of evidence is not an independent cause of action for spoliation of evidence. This holding clarified a split regarding the tort of spoliation between the 3rd and 4th District Courts of Appeals.
Third-Party Tort of Spoliation: The holding in Martino is limited to first-party spoliation. Florida Appellate Courts have recognized an independent claim for spoliation against third-parties. Townsend v. Conshor, Inc., 832 So.2d 166, 167 (Fla. Dist. Ct. App. 2002); Jost v. Lakeland Reg’l Med. Ctr., Inc., 844 So.2d 656 (Fla. 2d DCA 2003). Third-party spoliation claims, however, do not arise until the underlying action is completed. Lincoln Ins. Co. v. Home Emergency Servs., Inc., 812 So.2d 433, 434-435 (Fla. Dist. Ct. App. 2001). In order to establish a cause of action for spoliation, a party must show: (1) the existence of a potential civil action, (2) a legal or contractual duty to preserve evidence which is relevant to the potential civil action, (3) destruction of that evidence, (4) significant impairment in the ability to prove the lawsuit, (5) a causal relationship between the evidence destruction and the inability to prove the lawsuit, and (6) damages. Jost v. Lakeland, 844 So.2d 656, 657-685 (Fla.2d DCA 2003). The third-party tort of spoliation can also be maintained against an employer otherwise immune under the Exclusive Remedy Rule. In Builder’s Square, Inc. v. Shaw, 755 So. 2d 721, 724 (Fla. Dist. Ct. App. 1999), an employee of Builder’s Square successfully maintained a suit based on the tort of spoliation against his employer, who was aware of the injury yet destroyed or disposed of the evidence (ladder), thereby making the plaintiff’s case impossible to prosecute. Spoliation is established where the moving party demonstrates, (1) the missing or destroyed evidence existed at one time, (2) the non-moving, allegedly spoliating party had a duty preserve the evidence, and (3) the allegedly spoliated evidence was crucial to the movant’s ability to prove a prima facie case or defense. Walter v. Carnival Corp., 2010 WL 2927962,(S.D. Fla. 2010); QBE Ins. Corp. v. Jorda Enterprises, Inc., 2012 WL 948838 (S.D. Fla. 2012).
Sanctions: In Public Health Trust v. Valcin, 507 So.2d 596, 599 (Fla. 1987), the court held that when evidence was intentionally lost, misplaced, or destroyed by one party, trial courts were to rely on sanctions found in Fla. R. Civ. P. 1.380(b)(2), and that a jury could well infer from such a finding that the records would have contained indications of negligence. If the negligent loss of the evidence hinders the other party’s ability to establish a prima facie case, then a rebuttable presumption of negligence for the underlying tort will be applied. This presumption and sanction were upheld in Martino v. Wal-Mart Stores, Inc., 908 So.2d 342, 346-47 (Fla. 2005).
Statute of Limitations
Personal Property4 YearsF.S.A. § 95.11(3)(a),(o)
Personal Injury4 YearsF.S.A. § 95.11(3)(a),(o)
Personal Injury/Wrongful Death2 YearsF.S.A. § 95.11(4)(d)
Personal Injury/Malpractice2 YearsF.S.A. § 95.11(4)(b)
Breach of Contract/Written5 YearsF.S.A. § 95.11(2)
Breach of Contract/Oral4 YearsF.S.A. § 95.11(3)(k)
Breach of Contract/U.C.C./Goods4 YearsF.S.A. § 95.11(3)(k)
Statutes of Repose/Products20 YearsF.S.A. § 95.031*
Statute of Repose/Products/Life of 10 Years or Less12 YearsF.S.A. § 95.031*
Statues of Repose/Real Property10 YearsF.S.A. § 95.11(3)(c)**
Breach of Warranty/U.C.C.4 YearsF.S.A. § 95.11(3)(k)
Breach of Express Warranty5 YearsF.S.A. § 95.11(2)(b)
Workers’ Comp Third Party Case4 YearsF.S.A § 440.39
Strict Product Liability4 YearsF.S.A. § 95.11(3)(a),(e),(k)
Statute of Limitations Exceptions
*12 Years from delivery if product has useful life of 10 Years or less, otherwise 20 Years. If warranty more than 20 years then statute of repose is warranty period. F.S.A. § 95.031.
**10 Years from improvement to real property, from possession of owner, issuance of certificate of occupancy, date of abandonment of construction, or termination of the contract between the professional engineer, registered architect or licensed contractor and his or her employer, whichever date is latest. F.S.A. § 95.11.
Health Insurance Subrogation
Health and Disability Insurance
Statute of Limitations: 4 Years. F.S.A. § 95.11(3)(a); F.S.A. § 95.11(3)(o). Wrongful Death: 2 Years. F.S.A. § 95.11(4)(d). Medical Malpractice: 2 Years. F.S.A. § 95.11(4)(b).
Subrogation of Medical and Disability Benefits are allowed. F.S.A. § 768.76(4); Centex-Rodgers Constr. Co. v. Herrera, 816 So.2d 1206 (Fla. 4th DCA 2002). Made Whole and Common Fund Doctrine apply. F.S.A. § 768.76(4); Humana Health Plans v. Lawton, 675 So.2d 1382 (Fla. 5th DCA 1996). But Made Whole Doctrine is limited to insurers assertion of “subrogation” out of insured recovery and does not apply to insurer’s freestanding claim against a tortfeasor. Schonau v. GEICO Gen. Ins. Co., 903 So.2d 285, 288 (Fla. 4th DCA 2005).
Admissibility of Expert Testimony
Admissibility Standards: Daubert
Case/Statutory Law: F.S.A. § 90.702 (adopted Daubert Standard but was held unconstitutional as infringing on the court’s rulemaking authority in DeLisle v. Crane Co., 2018 WL 5075302 (Fla., Oct. 15, 2018). Then in In re Amendments to Fla. Evidence Code, 2019 WL 2219714 (Fla. 2019), the Supreme Court reversed itself and adopted the Daubert Standard set forth in § 90.702 and Federal Rule of Evidence 702. The Daubert amendments were carefully considered by the Florida Bar’s Code and Rules of Evidence Committee.
Comments: The Florida Supreme Court, by a 4-2 vote on Feb. 16, 2017, declined to adopt as a rule the legislative changes “to the extent that they are procedural” due to “grave constitutional concerns” about the Daubert standard. In re: Amendments to the Florida Evidence Code, 210 So.3d 1231 (Fla. 2017).
On October 15, 2018, the Florida Supreme Court announced that Frye is the governing standard when determining the admissibility of expert testimony. This decision clarifies longstanding confusion and uncertainty among the Florida courts and litigators regarding applicable standards. DeLisle v. Crane Co., 2018 WL 5075302 (Fla., Oct. 15, 2018). Seven months later, the Florida Supreme Court reversed itself and adopted the Daubert standard set forth in F.S.A. § 90.702. In re Amendments to Fla. Evidence Code, 2019 WL 2219714 (Fla. 2019).
Pre-Suit Disclosure of Liability Policy Limits in Third-Party Claims
Duty To Disclose: Yes. Fla. Stat. § 627.4137.
Failure To Disclose A Basis For Bad Faith: Powell v. Prudential P&C Ins. Co., 584 So.2d 12 (Fla. 1991). Section 627.4137 requires auto or CGL carrier who issues a policy in Florida to reveal the following information with regard to each known policy of insurance (including excess or umbrella) within thirty (30) days of a written request: (a) The name of the insurer; (b) The name of each insured; (c) The limits of the liability coverage; (d) A statement of any policy or coverage defense which such insurer reasonably believes is available to such insurer at the time of filing such statement; and (e) A copy of the policy.
All-Party Consent: All parties must consent to the recording and or disclosure of the contents of and electronic, oral or wire communication. Exceptions:(one-party consent required) (1) where there is no reasonable expectation of privacy, and (2) a child under 18 years of age who is a party to the communication recording a statement by another party that the other party intends to commit, is committing, or has committed an unlawful sexual act or an unlawful act of physical force or violence against the child.
Fla. Stat. Ann. § 934.03(3)(d), (2)(k).
Product Liability Subrogation
Product Liability Law
Statute of Limitations/Repose: 4 years for personal injury. F.S.A. § 95.11 (3)(e). Statute of Repose is 12 years. F.S.A. § 95.031(b).
Liability Standards: Strict Liability.
Fault Allocations: Pure Comparative. F.S.A. § 768.81(2).
Non-Economic Caps/Limits On Actual Damages: Paid Meds.
Punitive Y/N and Limits: Yes (Limits).
Heeding Presumption?: No.
Innocent Seller Statute: Yes.
Joint and Several Liability: No. F.S.A. § 768.81.
Available Defenses: Assumption of Risk; Misuse; Learned Intermediary; Inherently Unsafe Products; State of the Art; Presumption; Seatbelts; Government Contractor Defense; Compliance With Government Standards.
Restatement 2nd or 3rd?: Restatement 3rd
“Matching Regulations” And Laws Affecting Homeowners Property Claims
Statute/Regulations: Insurers are required to make reasonable repairs or replacement of items in adjoining area if they do not match. F.S.A. § 626.9744. Florida allows insurer to weigh factors besides appearance in determining the amount of effort taken to match. F.S.A. § 626.9744.
Comments: In 1990, the National Association of Insurance Commissioners adopted a new section to its model regulations relating to unfair property claims:
- When the policy provides for the adjustment and settlement of first-party losses based on replacement cost, the following shall apply:
(2) When a loss requires replacement of items and the replaced items do not match in quality, color or size, the insurer shall replace all such items in the area so as to conform to a reasonably uniform appearance. This applies to interior and exterior losses. The insured shall not bear any cost over the applicable deductible, if any.
Unfair Property/Casualty Claims Settlement Practices Model Reg. § 9(A) (Nat’l Association of Ins. Comm’rs 1997), available at: http://www.naic.org/store/free/MDL-902.pdf.
Condominium/Co-Op Waiver of Subrogation Laws
Every property insurance policy that is intended to protect the condo must provide primary coverage for all portions of condo originally installed and any alterations. Subrogation is determined by the insurer’s policy and applicable association’s by-laws. Any portion of the condo property that must be insured by the association against property loss that is also damaged by an insurable event must be repaired as necessary by the association as a common expense.
Fla. Stat. § 718.111(11)(f) and exceptions in (j). Every property insurance policy intended to protect the condominium is required to provide primary coverage for all portions of the condominium property as originally installed or any alterations of like kind and quality. The condominium master policy or association bylaws govern subrogation of property insurance claims. The association must repair any portion of the condominium property insured by the association and damaged by an insurable event. Fla. Stat. § 718.111(11)(f) and exceptions in (j). Section 718.111(11)(j) does not provide a condominium unit owner with a private right of action against another unit owner for the tortious conduct of the latter’s tenants. Universal Property & Casualty Ins. Co. v. Loftus, 276 So.3d 849 (Fla. App. 2019).
Damage to Property Without Market Value
Service Value: No Case Law
Intrinsic Value: “… the measure of damages for the loss of personal property…if the item has no market value, such as heirlooms, other sources must be used to determine value.” McDonald Air Conditioning, Inc. v. John Brown, Inc., 285 So.2d 697 (Fla. Dist. Ct. App. 1973).
Sentimental Value: “…we conclude that in a situation where the lost property has both a market value and sentimental value, as is the case here, the burden again rests with the plaintiff to prove that market valuation would be manifestly unfair.” Carye v. Boca Raton Hotel and Club, Ltd. Partnership, 676 So.2d 1020 (Fla. Dist. Ct. App. 1996).
General Contractor Overhead And Profit Payments In First-Party ACV Property Damage Claims
Payment And Depreciation Of GCOP/Sales Tax: GCOP is a reimbursable expense in property claims, even where no actual repairs were undertaken, if use of a general contractor is reasonably likely. Mills v. Foremost Ins. Co., 511 F.3d 1300 (11th Cir. 2008). GCOP and labor are depreciable under ACV policies. Goff v. State Farm Fla. Ins. Co., 999 So. 2d 684 (Fla. App. 2008). In RC policies, an insurer is required to include GCOP where the insured is reasonably likely to need a contractor for the repairs, because the insured would be required to pay costs for a contractor’s overhead and profit for the completion of repairs the same way the insured would have to pay other replacement costs he or she is reasonably likely to incur I repairing the property. F.S.A. § 627.7011(3) requires that in RC policies, the insurer must initially pay ACV. The insurer shall pay any remaining amounts necessary to perform such repairs as work is performed and expenses are incurred. If a total loss of a dwelling occurs, the insurer shall pay the RC coverage without reservation or holdback of any depreciation in value. Even though it doesn’t mention GCOP, it must be included. Trinidad v. Fla. Peninsula Ins. Co., 121 So.3d 433 (Fla. 2013).
Florida has avoided per se rules with regard to the “Sutton Rule” (see Oklahoma) and taken a more flexible case-by-case approach, holding that a tenant’s liability to the landlord’s insurer for negligently causing a fire depends on the intent and reasonable expectations of the parties to the lease as ascertained from the lease as a whole. Continental Ins. Co. v. Kennerson, 661 So.2d 325, 327 (Fla. App. 1995) (denied subrogation because the lease provided that damage caused by fire “shall be repaired by and at the expense of Lessor”); State Farm Florida Ins. Co. v. Loo, 2010 WL 445945 (Fla. App. 2010) (rejected presumptions against or for subrogation under the Sutton “Implied Co-Insured Doctrine” or its opposite, the anti-Sutton approach).
In Zurich Am. Ins. Co. v. Puccini, LLC, 271 So.2d 1079 (Fla. App. 2019), a commercial restaurant tenant caused a fire for which Zurich paid over $ 2.1 million dollars. Zurich subrogated against the tenant, who argued he was an implied co-insured under the Zurich policy. The trial court agreed and dismissed the case. The Court of Appeals noted that the lease provisions were very different from those in Kennerson. Although the tenants in Kennerson paid a pro-rata share of the fire insurance, the court did not rely on that fact alone. Instead, the court considered the lease as a whole. The lease in Kennerson provided that “damage caused by fire ‘shall be repaired by and at the expense of [landlord].’ ” Kennerson, 661 So.2d at 328. Moreover, the parties in Kennerson agreed that the tenant “would be excused even from paying rent for damaged premises while [the landlord] applied insurance proceeds … to effect repairs.” Finally, the lease in Kennerson had “no provision making [tenant] liable for damages its negligence might cause.” In Puccini, the parties agreed that the tenant would be “fully responsible” for damage caused by fire, and the landlord had no obligation to make repairs “occasioned by any intentional or negligent act of Tenant, its agents, or its employees.” Further, the lease provided that Tenant would be liable for damages caused by its negligence, that it would maintain its own fire insurance for damage claims “arising out of accidents occurring in or around the Premises[,]” and that Landlord would be held harmless for such damage claims. Thus, unlike in Kennerson, the risk-allocating provisions in Puccini did not show an intent to shift the risk of loss from a negligent tenant to the landlord’s insurer. Instead, the clear intent of the parties was that the tenant would bear the risk of loss due to damage resulting from Tenant’s negligence. Therefore, the court in Puccini found that the tenant was not an implied co-insured under Zurich’s policy and, therefore, Zurich could proceed with its subrogation action against the tenant.
An insurance carrier has no right of subrogation against its own insured. Bulone v. United States Auto. Ass’n, 660 So.2d 399 (Fla. Dist. Ct. App. 1995). If a contract imposes an affirmative duty on a building owner to buy insurance for the benefit of the owner and contractor, then the contractor becomes an insured under the policy, preventing the insurer from bringing suit against the contractor. Ins. Co. of N. Am. v. E.L. Nezelek, Inc., 480 So.2d 1333 (Fla. Dist. Ct. App. 1985). Where a contract required a property owner to carry fire insurance that included a contractor as one of the insureds with the intent of shifting all risk of fire damage to an insurer regardless of any parties’ negligence, failure of the owner to include the contractor in the insurance policy prevented the property owner from collecting from the contractor on behalf of the insurer. Smith v. Ryan, 142 So.2d 139 (Fla. Dist. Ct. App. 1962). An insurer may not be subrogated to the rights of one insured to defeat another insured due to its undertaking to insure both. Ray v. Earl, 277 So.2d 73 (Fla. Dist. Ct. App. 1973). Generally, a builders’ risk insurer may not recover from a co-insured for damages caused to property covered under the policy. Dyson & Co. v. Flood Engineers, Architects, Planners, Inc., 523 So.2d 756 (Fla. Dist. Ct. App. 1988). Where a contractor failed to include an engineering/design firm in their builders’ risk policy, despite having contracted to do so, the contractor’s insurer may not subrogate against the engineering/design firm because the engineering/design firm has “a substantial interest in being held free from any liability arising out of its participation in the project.” Id. An insurer who makes payments to an insured for injuries the insured suffered from an uninsured motorist is entitled to subrogate against money the insured receives from a joint tortfeasor of the uninsured driver. Schwab v. Town of Davie, 492 So.2d 708 (Fla. Dist. Ct. App. 1986) (Allstate, who paid Schwab $190,000 for injuries caused by an uninsured driver, was entitled to subrogate against the $100,000 Schwab was paid by Town of Davie for having negligently designed the road Schwab was injured on). In Dyson & Co., Flood Engineers designed a sewage system for the city of Pensacola, Florida, who subsequently hired the contractor Dyson to build the Sewage system. Dyson was required by contract to maintain a builders’ risk policy that included Flood Engineers as an insured, but Dyson failed to do so and after a fire caused significant damage to the project, Dyson’s insurer attempted to subrogate against Flood Engineers for the damage. Flood Engineers argued that Dyson’s failure to include Flood Engineers as an insured on Dyson’s policy barred Dyson’s insurer from subrogating against Flood Engineers, while Dyson and its insurer argued that Flood Engineers could not be an insured on the policy because Flood Engineers had no insurable interest in the project (e.g., bricks, mortar, tools, etc.). The court ultimately held that Flood Engineers could not be subrogated against because Dyson had breached their duty to include Flood Engineers on their policy, and Flood Engineers had an insurable interest in the project because Flood Engineers had a “substantial interest in being held free from any liability arising out of its participation in the project.”
Florida courts are permitted to award restitution paid by a criminal defendant to “any victim” who sustained a loss as a result of the defendant’s criminal conduct. The criminal restitution statute is inclusive of direct and indirect injuries, stating that a “victim” is “each person who suffers property damage or loss, monetary expense, or physical injury or death as a direct or indirect result of the defendant’s offense or criminal episode.” F.S.A. § 775.089 (West).
Case law in Florida interprets the statute to mean that an insurer qualifies as a “victim,” as “Florida’s restitution statute requires the trial court to consider the amount of the loss sustained by any victim,” and further stated that an insurer would be subrogated to the rights of its insured. State v. Williams, 689 So.2d 1233, 1234 (Fla. Dist. Ct. App. 1997).
Made Whole Doctrine
In 1992, the Florida Supreme Court acknowledged the application of the Made Whole Doctrine stating: “Using the common law subrogation principle, endorsed by Florida courts, the District Court reasoned that the insured was entitled to be made whole before the subrogated insurer could participate in the recovery from a tortfeasor.” Insurance Co. of North Am. v. Lexow, 602 So.2d 528 (Fla. 1992); Florida Farm Bur. Ins. Co. v. Martin, 377 So.2d 827 (Fla. 1979).
The Made Whole Doctrine is intended to apply only in “limited fund” scenarios. Martin, supra. This means it applies only when the tortfeasor lacks adequate funds or insurance coverage. Schonau v. GEICO General Ins. Co., 903 So.2d 285 (Fla. App. 2005). Florida law does not appear to recognize an affirmative right or cause of action by an insured against its insurer to be “made whole” beyond the payment of insurance policy proceeds. Instead, it appears that Florida law allows the Made Whole Doctrine to be used as a defense by insureds to protect the insured’s direct recovery from a tortfeasor, where the insured’s own insurer makes a subrogation claim upon the insured’s recovery. Id.
Therefore, an insurer does not have a common law right to subrogation or reimbursement against a tortfeasor unless the insured has collected all of his damages and been made whole. Magsipock v. Larsen, 639 So.2d 1038 (Fla. App. 1994); Rubio v. Rubio, 452 So.2d 130 (Fla. App. 1984). However, where a full recovery has been made by the insured, who is thus “made whole,” any payments to the insured over and above his actual damages may be viewed as “double recovery,” entitling the carrier to subrogation or reimbursement rights. Humana Health Plans v. Lawton, 675 So.2d 1382 (Fla. App. 1996).
At least one unpublished opinion seems to indicate that an insured’s comparative fault should be taken into consideration when determining whether or not the insured is made whole. Monte de Oca v. State Farm Fire & Cas. Co., 897 So.2d 471 (Fla. App. 2004). It should be noted that Florida case law also indicates that the Made Whole Doctrine may be overridden by contract. Martin, supra; Blue Cross & Blue Shield of Fla. v. Matthews, 498 So.2d 421, 422 (Fla. 1986). In an early Court of Appeals decision, the Court indicated that: “If the insurer pays a claim for a loss caused by the negligence of a third person and requests the insured to prosecute his claim against the tortfeasor, assists in the prosecution of the claim, and bears its share of the burden of preparing the case for trial, it is entitled, out of the judgment recovered, to the amount which it has paid on account of the loss, notwithstanding the judgment recovered is not, according to the insured’s claim, the full value of the property destroyed.” Morgan v. General Ins. Co. of America, 181 So.2d 175 (Fla. App. 1965).
A Florida federal district court decision held that the Made Whole Doctrine does not authorize an insured to “freely and intentionally” breach his contractual obligations to notify the insurer of settlement proceedings or otherwise breach material provisions of the insurance policy. Adelstein v. Unicare Life & Health Ins. Co., 135 F.Supp.2d 1240 (M.D. Fla. 2001). In fact, the Court said that when an insured acts without regard for the subrogation rights of the carrier by settling with the tortfeasor for less than the available policy limits, or by releasing the tortfeasor from all claims, the Made Whole Doctrine will not apply. Id.
Medical Expenses, Insurance Write-Offs, and The Collateral Source Rule
Collateral Source Rule: The CSR is complicated in Florida. Florida’s common law CSR prohibited party from introducing evidence of collateral benefits, as well as the set-off of such benefits from the verdict. Sheffield v. Superior Ins. Co., 800 So.2d 197 (Fla. 2001). CSR modified by comprehensive statute in 1986. Section 768.76 did NOT change the evidence portion of the common law CSR – such evidence still NOT allowed. However, the court must reduce the jury verdict by the amount of benefits paid plaintiff from all collateral sources. There is no reduction when a subrogation or reimbursement right exists. F.S.A. § 768.76.
Recovery Of Medical Expenses Rule:
Private Insurance: Plaintiff entitled to introduce into evidence gross (billed) amount of medical bills, rather than lesser discounted amount paid by health insurer, because he paid premiums to obtain the private insurance or otherwise “earned” them in some way. Nationwide Mut. Fire Ins. Co. v. Harrell, 53 So.3d 1084 (Fla. App. 2010). But see Dourado v. Ford Motor Co., 843 So.2d 913 (Fla. App. 2003); Horton v. Channing, 698 So.2d 865 (Fla. App. 1997). Plaintiff may recover damages only for those medical expenses actually paid – not those subject to write-down. Goble v. Frohman, 901 So.2d 830 (Fla. 2005); Mercury Motors Express, Inc. v. Johnson, 393 So.2d 545 (Fla. 1981). Plaintiff must send party with subrogation rights notice of intent to pursue tortfeasor and copy of complaint. Party waives subrogation rights if it doesn’t provide plaintiff with statement of benefits paid within 30 days. Subrogated party must cooperate with plaintiff. F.S.A. § 768.76(6)(7)(9).
No-Fault PIP Benefits: Plaintiff can prove all damages, but PIP benefits have no subrogation right and are set-off from jury verdict. F.S.A. § 627.736(3). Med Pay benefits not considered “collateral source” and not subject to set-off. Sutton v. Ashcraft, 671 So.2d 301 (Fla. App. 1996).
Medicare/Medicaid/Workers’ Comp.: F.S.A. § 768.76(4)(b) provides that benefits received under Workers’ Compensation, Medicare, Medicaid, Social Security, or any other federal program providing for a federal government lien on or right of reimbursement from the plaintiff’s recovery, are not collateral sources and not subject to set-off. Defendant can introduce evidence of such benefits. Plaintiff also cannot recover damages for which Medicare benefits paid. Cooperative Leasing v. Johnson, 872 So.2d 956 (Fla. App. 2004). Defendants precluded from introducing evidence regarding collateral source benefits that plaintiffs may receive in the future from social legislation, such as Medicare and Medicaid. There was no guarantee of these benefits. Medicare benefits were free and unearned. Joerg v. State Farm Mut. Auto. Ins. Co., 176 So.3d 1247 (Fla. 2015).
Workers’ Compensation: Amounts paid by employer to injured employee above and beyond benefits payable under Workers’ Compensation Act, are considered a gratuity. F.S.A. § 440.20(14).
Employee Leasing Laws
Any employer who utilizes the services of an employee leasing service is entitled to immunity under the Exclusive Remedy Rule. F.S.A. § 440.11(2). However, such immunity will only extend to an employer and to each employee of the employer who utilizes the services of the employees of a help supply services company as set forth in Standard Industry Code Industry Number 7363.
Hospital Lien Laws
Statute: No overlying state statute in Florida.
Comments: Hospital liens laws are enacted on a county-by-county basis in Florida. Not every county has a standing hospital lien law. Given that there are 67 counties in Florida, the list is too extensive to include on this chart.
OCIP/CCIP Subrogation In Workers’ Compensation Construction Cases
OCIP Law: Very little law on OCIP/CCIP programs. Possibly no exclusive remedy protection for an owner because it is not required to obtain workers’ compensation coverage for contractor’s employees. Wenzel v. Boyles Galvanizing Co., 920 F.2d 778 (11th Cir. 1991). An OCIP may only be used in connection with a public construction project. F.S.A. § 255.0517.
Statutory Employer Law: if a contractor subcontracts for any part of his contract work to a subcontractor, all of the employees of the contractor and the subcontractor shall be deemed to be employed in one and the same business or establishment, and the contractor is liable for the payment of workers’ compensation insurance to all such employees, with the exception of employees of a subcontractor who have secured such payment. F.S.A. § 440.10.
Comments: Vertical immunity is addressed in § 440.10(1)(b). Contractors are responsible for securing workers’ compensation coverage for their employees in exchange for the exclusive remedy protection set forth in § 440.11. It affords immunity to the contractor and all subcontractors below it with a direct vertical connection to the injured worker. Horizontal immunity was adopted in 2003, along with § 440.10(1)(e). It eliminates the direct, vertical link requirement between company and worker, effectively extending immunity to every construction site employer. Amorin v. Gordon, 996 So.2d 913 (Fla. App. 2008); Employers Ins. of Wausau v. Abernathy, 442 So.2d 953 (Fla. 1983).
Recovery Of Increased Workers’ Compensation Premiums By Employer
Recovery For Increased Premiums? No.
Statute/Case Law: Southland Constr., Inc. v. Greater Orlando Aviation, 860 So.2d 1031, 1033–34, 1036 (Fla. Dist. Ct. App. 2003); Agency for Healthcare Admin. v. Associated Indus, of Fla., 678 So.2d 1239 (Fla. 1996) (Tobacco litigation; increased premiums too remote).
Rule Summary: Increased workers’ compensation premiums resulting from a third-party tortfeasor’s injuries to employees are harms that are not foreseeable or are otherwise too remote to be subject to liability and In the Southland Construction case were foreclosed by Pennsylvania’s workers’ compensation scheme.
Which Workers’ Compensation “Benefits” Can Be Subrogated?
Section 440.39(3)(a) provides that the workers’ compensation carrier is entitled to recover “the amount of compensation benefits paid or to be paid as provided by subsection 3.” Section 440.39 then goes on to state that the lien is upon any judgment or settlement recovered to the extent that the court may determine to be their “pro rata share for compensation and medical benefits paid or to be paid under the provisions of this law.” “Medical benefits” is not defined in that particular statute, but § 440.027) defines “compensation” as:
(7) “Compensation” means the money allowance payable to an employee or to his or her dependents as provided for in this chapter.
The carrier can require the employee to undergo a reemployment assessment and must hire a qualified rehabilitation provider to provide the assessment. Fla. Stat. § 440.491(4)(a).
The carrier’s subrogation rights do not extend to payment of vocational benefits, attorney’s fees or miscellaneous claims expenses such as investigation or the use of experts. Fla. Stat. §440.39(2),(3)(a) (1997); Employer’s Casualty Insurance Company v. Manfredo, 542 So.2d 1365 (Fla. App. 1989), aff’d, 560 So.2d 1162 (Fla. 1990). The employee is responsible for his/her own attorneys’ fees. Fla. Stat. §440.34.
Workers’ Compensation Subrogation Waiver Endorsements
Subrogation Statute: F.S.A. § 440.39
Waiver Allowed? Yes.
Effect Of Waiver Endorsement on Carrier’s Right To Assert A Lien On Claimant’s Recovery: In Specialty Disability Trust Fund, et al. v. Comcar Indus., 675 So.2d 1019 (Fla. App. 1996), the court recognized a self-insured’s waiver of their lien on past benefits as well as on future proceeds from the third-party action in exchange for a release and settlement of the claim.
Other Applicable Law: None.
Statute of Limitations: 4 Years. F.S.A § 440.39.
Can Carrier Sue Third Party Directly: Year 1 – Plaintiff | Year 2 – Carrier* | Year 3 – Plaintiff
*must give 30 days-notice to employee.
Right to Intervene: No, MUST file Notice of Lien.
Recovery from UM/UIM Benefits: No.
Subrogation Against Medical Malpractice: Yes.
Subrogation Against Legal Malpractice: No.
Recovery Allocation/Equitable Limitations: The carrier gets the lien, less pro-rata fees, unless the plaintiff shows Manfredo Formula.
Employer Contribution/Negligence: No.
Attorney’s Fees/Costs: Pro-Rata.
Future Credit: Yes, the carrier may also recover in a third-party suit if the carrier files suit.
Auto No-Fault: Yes.
Workers’ Compensation Claims by Undocumented Employees
Statute: The statute expressly includes legally or illegally employed employees. It does not expressly mention “aliens.” Fla. Stat. § 440.02(15)(a).
Case Law: Gene’s Harvesting v. Rodriguez, 421 So.2d 701 (Fla. App. Ct. 1982); Safeharbor Employer Services v. Velazquez, 860 So.2d 984 (Fla. App. Ct. 2003).
Comments/Explanation/Other: *Florida prohibits workers’ compensation if the employment was done under false information/pretenses. Gene’s reasoned that if the legislature had wanted to exclude illegal immigrants, they would have.