Florida’s Uninsured Motorist Law
Every motor vehicle liability insurance policy issued in Florida which provides bodily injury liability coverage must include an equal amount of uninsured motorist vehicle coverage, unless the insured makes a specific rejection of that UM coverage. If the insurer cannot reproduce a copy of the rejection form that you signed when you took out the policy, in most cases they have to provide coverage equal to the amount of your bodily injury coverage. Legal counsel is recommended to advise you in more detail about this situation.
Purpose of Uninsured Motorist (UM) Insurance
UM is a legislative creation intended to allow an insured the same recovery that he would have been entitled to had he been insured to the same extent as the UM coverage. For instance, if you are involved in an accident with someone who has no bodily injury coverage, underinsured motorist coverage may apply. Because the UM statute was enacted to provide relief to innocent persons who are injured through the negligence of an uninsured motorist, it is not to be whittled away by exclusions and exceptions.
Definition of UM Insurance
The definition of an uninsured motor vehicle is as follows:
Is unable to make payment with respect to the legal liability of its insured within the policy limits because of insolvency (carrier goes out of business);
Has provided limits of bodily injury liability for its insured which are less than the total damages sustained by the person legally entitled to recover damages (underinsured motorist); or
Excludes liability coverage to a nonfamily member whose operation of an insured vehicle results in injuries to the named insured (friend driving your vehicle and they are responsible for your injuries, therefore bodily injury coverage is available but does not apply to you as an insured) or to a relative of the named insured who is a member of the named insured’s household (in most cases, you cannot make an underinsured motorist claim when the at fault driver is a resident relative.)
Time Limitations on UM (Uninsured Motorist) Claims
Because courts have likened UM, uninsured motorist, coverage claims to contract disputes, the statute of limitations for a UM claim is five years, rather than the four years for a typical tort claim. The statute of limitations begins to run at the time of the accident. This means if you have a UM, uninsured motorist, coverage claim in Florida that happened 4 years ago, there is still time to call the Law Office of Rue & Ziffra at 800-526-4711 to speak to an attorney about your claim now or fill out our contact form for a free uninsured motorist claim consultation today.
Absent such exigent circumstances as “fraud, forgery, or trickery,” an insured is deemed to be bound by his signature on an informed rejection form applicable to UM coverage.
A self-insured motorist is not a “liability insurer” within the meaning of the definition found in Florida Statutes, section 627.727. As such, a self-insurer with a certificate of self-insurance providing limits of liability lower than the damages sustained by the injured person is not an “underinsured motorist.” Rather, a self-insured motorist is an “uninsured motorist.”
Self-insurance is not a “policy” of insurance. Self-insured employer was not required to provide UM coverage on a vehicle used by employee and was not required to offer the employee coverage.
Under Florida law, UM coverage under an automobile insurance policy is not available if the claim is made against the same policy which provides liability coverage to the automobile in question and if the policy says that an insured automobile cannot be considered an uninsured automobile.
Rejection of UM Coverage by Insured
Although uninsured motorist provision of Fla. Stat. § 627.727 prohibits delivery or issuance in Florida of automobile liability insurance unless uninsured motorist protection has the same limits as liability insurance, insured is allowed to reject coverage and select lesser coverage; unless insured selects lesser coverage, uninsured motorist coverage is by operation of law equal to general liability coverage.
The insurer must obtain a written rejection from the insured of UM coverage, otherwise the insured is entitled to UM up to the limit of the bodily injury liability coverage provided by the policy. It is essential that you contact an attorney as soon as possible to investigate this situation, or you may be losing valuable coverage that could apply for your injuries.
Here are some examples in which the insurer may not need to have another UM rejection signed by you:
Example 1: Adding new vehicle to existing automobile insurance policy was extension or change for which insurer was not required to again obtain express rejection of UM coverage equal to liability limits. Addition of vehicle is governed by statute stating that, when named insured has initially selected limits of UM coverage lower than bodily injury limits, high UM limits need not be provided in or supplemental to any other policy which renews, extends, changes, supersedes, or replaces the existing policy.
Example 2: Likewise, an insured that was once rejected full coverage under UM portion of automobile insurance policy need not again reject that coverage when he buys a replacement vehicle.
Form for Rejection
Rejection of UM coverage or selection of lower limits must be on a form approved by the insurance commissioner.
The form must fully advise the insured of the nature of the coverage and state that the coverage is equal to bodily injury liability limits unless lower limits are requested or the coverage is rejected.
The heading of the form must state in 12-point bold type: “You are electing not to purchase certain valuable coverage which protects you and your family or you are purchasing uninsured motorist limits less than your bodily injury liability limits when you sign this form. Please read carefully.”
The insurer must notify the named insured at least annually of his options as to UM coverage. This notice must be part of, and attached to, the notice of premium. Additionally, this notice must provide a mechanism for the insured to request UM coverage in a manner approved by the department of insurance.
The insured’s signing of this form creates a conclusive presumption that there was an informed, knowing, rejection of coverage or election of lower limits on behalf of all insured.
Phantom Driver, also known as a Hit and Run Driver
A “hit and run” accident requires either physical contact with another vehicle OR the presence of a phantom vehicle. In the instance of a phantom vehicle, that phantom vehicle must cause another vehicle to wreck, without actual contact; i.e. where another vehicle is forced off the road to avoid a head-on collision.
The purpose of the physical contact requirement is to prevent fraudulent claims by proving the accident occurred as the insured claims it did.
The physical contact may not actually be necessary if the jury finds that the accident occurred as the insured claimed it did.
The “corroboration” provision, which required competent testimony other than the testimony of the injured claimant if there was no physical contact with a hit and run vehicle, or UM policy was deemed un-enforceable because it conflicted with the UM statute.
Example 1: Hit and run provision of UM policy did not apply to a cinder block where there was no competent evidence as to origination of cinder block and it would be mere speculation to claim it fell off a vehicle.
Example 2: However, when a steel beam fell off an unidentified truck, causing the insured’s accident when another driver hit the beam lying on the highway and forced the beam to strike the insured’s vehicle, the unidentified truck constituted a hit and run vehicle within the scope of the policy’s definition of an uninsured motor vehicle.
Notice to Insurer of “Hit and Run” Accident
Your insurance policy usually requires notice of a hit and run accident within 24 hours or as soon as possible. Prejudice to insurer is presumed where notice of a hit and run accident is not given to police or appropriate government authority within 24 hours of the accident. However, if insured can demonstrate that insurer was not prejudiced by such lack of notice, insurer will not automatically be relieved of liability. Insurer can waive late notice for proof of loss requirements if the insurer fails to raise late notice and takes inconsistent action.
This means that if you don’t report the accident immediately, there may be evidence that was available that could identify the at fault party. It is imperative that you notify the authorities, the insurance company and your attorney as soon as this happens so any possible leads may be investigated.
Named insured, named insured’s spouse and his or her relatives living in the same house covered are under the UM policy, even when the covered automobile is not involved in accident from which the injuries arose (a resident of your household that is NOT related to you is not included within this definition).
Whether an individual is residing in the same household is most often determined by looking at the totality of the circumstances. Generally, the relationship between the insured and the injured party must either be a legal or blood relationship to receive UM coverage.
Factors to be considered in determining status as a resident relative include continuous residence, physical presence, personal items maintained at the residence, and the intent of the parties. For instance, an insured’s son may be considered a resident relative even though he was stationed at a naval base. The son had resided continuously with his parents prior to enlisting, continued to maintain a majority of his personal effects at his parent’s home, and continued to use his parents address as his permanent mailing address while in service.
Another example includes an insured’s son was not considered to be a resident of insured’s household at time of automobile accident where, although son was living with insured at time of accident, there was no evidence that he had an intention to continue living there, and after the accident he returned to Indiana where he had resided with his wife prior to being laid off from his job. As such, the policy issued to the mother providing uninsured motorist coverage and other benefits for relatives if they resided in insured’s household did not apply to the son.
A child of divorced parents can be deemed to be a resident relative of both of his parent’s households, so long as both parents clearly intend the child to maintain relationships with both parents and the child spends regular time at both households.
The question of residency is always a “gray” area and should be discussed with your attorney as soon as possible.
Permissive User or Passenger in the Insured Vehicle
An injury complained of must have some causal connection with uninsured vehicle for coverage under policy to exist by reason of statutory UM provision.
Example 1: Provision of policy extending UM coverage to injuries caused by accident and arising out of ownership, maintenance or use of an uninsured or underinsured vehicle did not extend UM coverage to insured for injuries sustained by him when, as a passenger in his taxicab pulled a gun and demanded money, insured grabbed for gun and as a result, sustained injuries to his left hand from the gun barrel or a bullet coming from the gun.
Example 2: Physical connection to vehicle may be a factor. Discharge of shotgun which was still mounted to a permanently affixed gun rack attached to the vehicle amounted to a sufficient causal connection between the use of the vehicle and the injury so as to fall within the UM provision.