What Happens if the Other Driver is Under-Insured?
This question comes up often, especially in catastrophic injury cases. For example, the medical bills and associated expenses in spine injury cases could be more than $1 million in the first year and close to $5 million over the course of a lifetime.
Most tortfeasors (negligent drivers) do not have nearly enough insurance coverage to make good on these damages, especially since Florida has one of the lowest auto insurance minimum requirements in the country.
In these situations, the court sometimes forces the tortfeasor’s insurance company to pay damages which exceed the policy limits. But typically, a Brandon car accident attorney must look for an additional source of compensation. Typically, that means third party liability.
Respondeat superior (“let the master answer”) is probably the most common employer liability theory in Florida. It applies in most commercial driver claims, such as taxi drivers, Uber drivers, and truck drivers. This legal theory has three basic prongs:
- Employee: The tortfeasor must have been an employee. In this context, an “employee” is not just someone who receives a regular paycheck. Independent contractors, owner-operators, and even many unpaid volunteer drivers are employees in this context. The employer controls these individuals, and sway over things like work hours and route travelled is sufficient to establish an employer-employee relationship.
- Scope of Employment: The negligence must have happened in the scope of employment. In times past, the “scope of employment” meant something like delivery drivers making their normal routes. But under modern Florida law, any act which benefits the employer in any way is within the scope of employment. That includes driving an empty Lyft vehicle which bears the company logo. The free advertising benefits Lyft.
- Foreseeability: A car crash is almost always a foreseeable result of an employer-employee relationship. However, facts like an employee breaking into the parking garage and stealing a car may defeat foreseeability.
Other employer liability theories include negligence hiring, which is basically hiring an incompetent worker, and negligence supervision, which is failure to properly monitor workers. These theories often arise in assault and other intentional tort claims.
Owners are vicariously liable for damages if they allow incompetent operators to use their vehicles and these individuals cause a car crash. Commercial negligent entrustment cases, like U-Haul truck rental crashes, are a bit more complex, because of the Graves Amendment. Evidence of incompetence includes:
- Direct Evidence: Drivers without licenses, or with safety-suspended licenses, are usually incompetent as a matter of law, no matter how much driving experience they have.
- Circumstantial Evidence: A poor driving record or a number of “near miss” accidents may be circumstantial evidence of incompetency.
In both cases, victim/plaintiffs must normally establish that the owner knew the operator was incompetent.
Alcohol Provider Liability
Florida has a limited dram shop law which holds restaurants, grocery stores, and other commercial alcohol providers liable for damages if:
- They sell alcohol to minors, or
- The patron was “habitually addicted” to alcohol.
Evidence of habitual addiction includes prior sales transactions at that location and any statements the tortfeasor made about an alcohol problem.
The foreseeability rule applies in dram shop liability cases as well. This element is often an issue in packaged alcohol sales. Generally, however, it is foreseeable that a person will open a can of beer and drink from it on the way home.
Contact Assertive Attorneys
The tortfeasor may not be the only responsible party in a vehicle collision claim. For a free consultation with an experienced car accident injury lawyer in Brandon, contact Reed & Reed, Attorneys at Law. We have four area offices (St. Petersburg, Lakeland, Tampa, and Clearwater).