At Lesser, Lesser, Landy & Smith, we represent clients and families who have suffered personal injuries or the loss of a loved one due to the negligence of truck drivers or the trucking companies for which they drive.  Accidents occur due to driver fatigue, careless driving or speeding, defective equipment, unsecured loads, alcohol and drug use, and improper maintenance and inspection of  vehicles.  Sometimes, it is the trucking company that does not provide adequate safety training to its drivers.  Often, the trucking company places unrealistic expectations and schedules on its drivers which cause lack of sleep, fatigue and erratic driving by drivers and employees. 

Recently, the Federal Motor Carrier Safety Administration (FMCSA) has established new standards for the commercial driver’s license (CDL) testing and new standards for the issuance of the commercial learner’s permit (CLP).  Novice truck drivers will be required to pass federally approved CDL testing of knowledge and skills.  This means that in order to obtain a CLP, drivers will have to meet the same requirements as a full CDL.  Applicants must be eighteen years old, have clean driving records, and hold a learner’s permit for two weeks before making application for the full CDL.  As regulations such as these continue to be strengthened it is hoped that deaths and injuries involving large trucks will continue to decline.  Additional safety and regulatory information may be found at the FMCSA website: http://www.fmcsa.dot.gov/

Having a driver’s license and driving on the roadways is a privilege given to us by the state of Florida. Just like any privilege, if it is abused, it can be suspended or revoked by the state in which the license is issued. A parent or guardian of a minor driver (under the age of 18) can also withhold or suspend such privilege.  You, as a parent or guardian, must sign for your teenager’s driver’s license in order for the license to be issued. Therefore, if you have any concerns about your teenager’s ability or responsibility to operate a motor vehicle safely on the roadways, you may withhold your signature, thus preventing the teenager from obtaining a driver’s license until you say it is okay or until the teenager reaches the age of majority.

Florida law requires that all vehicles have the requisite insurance in order to drive on Florida roadways. Not only should the vehicle your teenager drives be insured, but your teenager should also be listed as a driver on any and all vehicles intended for his use. If not listed and a car accident occurs, he could be excluded from any recovery under the policy.  It is equally important to advise your teenager that only he or she has your permission to drive the vehicle. Under Florida law, if your teenager lends the vehicle to a friend, whether you approve or not, you, as the owner of the vehicle and as the insurance policy holder, can be held legally liable for any injury or damage caused while operating the vehicle.

An area of concern is teenage drinking. Florida law has  zero tolerance for underage drinking and driving. A person of any age can be found guilty of Florida Statute 316.193:Driving under the Influence of Alcoholic Beverages, Chemical Substances or Controlled Substances(DUI)–if his normal faculties are impaired or if there is a blood alcohol level of .08 or higher. The penalties are quite severe and increase with each offense. Your teenager needs to understand that even if he is under the influence of legitimate prescription medication, or over the counter medication, such as cold medications, if his ability to driver safely is affected, he can be a danger to himself and others on the roadway. For more information on prevention, go to  www.madd.org or  www.sadd.org  to see what agreements you and your teenager can enter into to avoid the bad choice of drinking and driving.

Many teenagers use texting as a way of communication. It has become a widespread  hazard on the roadways and at Lesser, Lesser Landy and Smith we have seen too many crashes that could have been avoided had the driver simply not been talking on the cell phone or texting. Many states, such as Florida,  are in the process of approving legislature that makes holding a cell phone and talking on it illegal while driving. The Florida legislature is also looking to pass laws making it illegal to text while driving.

Driving a vehicle on Florida’s roadways must be taken seriously. A parent or guardian, has an obligation to make sure teenagers are safe while driving on the roadways. Any offense against a teenager’s driver’s license will not bode well for young drivers, and it certainly can be costly for  parents who are paying the automobile insurance policy premiums–which is the subject for another day’s topic.

Reality, of course, is much different from television drama.  Many civil disputes are resolved before a lawsuit is even filed.  Of those that are filed, well over 9 out of 10 are settled without the client ever setting foot in the courthouse.  Florida has a very strong pre-trial mediation program.  This program is mandatory, and no case can go to trial in Florida without first going through the mediation process.  Trained mediators help the parties try to reach a compromise they can live with.  We have had great success in resolving cases through pre-trial mediation.

Of course, not every case settles before trial.  We have found that, after getting over the initial butterflies, our clients almost universally agree that the process is not as bad as they expected.  Palm Beach County is blessed with the finest judiciary in the State of Florida.  Our Judges do not allow the sort of behavior seen on television dramas, and the experience is simply not as nerve-wracking as TV would suggest.

Our lawyers have a vast amount of trial experience. Insurance companies and defense lawyers know this.

Our abilities in the courtroom allow us to resolve most of our cases before trial.  While it might be natural to have feelings against “going to court,” that should never be a reason for not pursuing a valid claim.

1. Safety helmets – Section 316.211 Equipment for Motorcycle and Moped Riders – Not required for those over the age of 21 with a minimum of $10,000 in medical insurance. Despite the fact that the law does not require the use of a helmet, it is without a doubt the single most important element of motorcycle safety. As trial attorneys, we have encountered those clients that have been involved in motorcycle accidents that, due to the use of a helmet, broke their bones but kept their brains intact. On the other hand, we have also encountered the tragic results of a catastrophic brain injury, and even death, which may have been prevented by the use of a helmet.

2. Licenses and Educational Requirements – Prior to their obtaining their license, the riders must pass a skill as well as a knowledge test. Florida will accept motorcycle endorsements from other states.

3. Eye protection – Eye protection is required by Florida law at all times while operating a motorcycle.

4. Daytime use of headlight – In order to maximize the motorcycle’s visibility to oncoming traffic, daytime use of headlights is required by Florida law, although a modulating headlight is permitted.

5. Passenger – A passenger seat, as well as passenger foot rest, are required for all passengers. There is no age restriction for motorcycle passengers.

6. Speakers – Motorcycle speakers, as well as helmet speakers, are allowed. On the other hand, earphones are illegal as they are obstructive to proper hearing of the motorcyclists.

7. Safety inspections – Florida has no periodic safety inspection requirement.

8. Mufflers – Pursuant to Florida Statute 316.293(5)(A), Noise Abatement Equipment Modifications – No person shall modify the exhaust system of a motorcycle or any other noise abatement device of a motorcycle operated or to be operated upon the highways of this state in such a manner that the noise emitted by the motorcycle is above that emitted by the vehicle as originally manufactured.

9. Insurance Requirements – The financial responsibility laws are unique in Florida as they apply to motorcyclists. Florida’s no-fault, or “PIP law”, is mandatory for cars and trucks. This coverage pays for the occupant’s first $10,000.00 or more in medical expenses. This law does not hold true for motorcyclists – Florida’s no-fault law is inapplicable to motorcyclists. On the other hand, the financial responsibility law does apply to all motor vehicles including motorcyclists. Thus, it is highly recommended that all motorcyclists purchase motor vehicle liability insurance. Failure to carry property damage and bodily injury insurance, in case of a crash, may result in possible license suspension.

10. Operation – Pursuant to Florida Statute 316.209, motorcyclists may operate two abreast in the same lane. Specifically, the statute states, “Motorcycles on Roadways Lanes of Traffic – (1) All motorcycles are entitled to full use of a lane and no motor vehicle shall be driven in such manner as to deprive any motorcycle of the full use of a lane. This subsection shall not apply to motorcycles operated two abreast in a single lane.”

On the other hand, motorcycle lane splitting is prohibited. Pursuant to Section 316.209(2), Operating Motorcycles on Roadways Laned for Traffic, “The operator of a motorcycle shall not overtake and pass in the same lane occupied by the vehicle being overtaken. (3) No person shall operate a motorcycle between lanes of traffic or between adjacent lines or rows of vehicles.”

Motorcycles are fun to operate and serve as an economical source of transportation. In order to stay safe and protect yourself, it is imperative to follow the laws of the road.

Florida is one of a handful of states that deem a car to be a “dangerous instrumentality” and, therefore, hold the owner liable for the harm it causes.  Common experience tells us that cars are dangerous and frequently cause injury and even death.  The “dangerous instrumentality” doctrine is logical and helps to protect the innocent victims of car crashes.

There are some limited exceptions to the rule.  When control of the vehicle is relinquished to a valet or a mechanic, the law generally does not hold the owner liable.  Similarly, if the vehicle is stolen, the owner is not liable.  There can still be liability, though, if the vehicle was stolen when the keys were left in it.  Finally, the law places certain caps on an individual’s financial liability as owner of the vehicle.

If your vehicle is frequently used by another, be sure to bring this to the attention of your insurance agent.  You want to be sure your liability exposure is covered under your policy.  Many policies exclude coverage for unlisted drivers who regularly use the vehicle.  While this might give the insurance company a defense to coverage, your financial liability will remain.  Cover yourself appropriately so the “dangerous instrumentality” doctrine does not take a bite out of your family’s financial well being.

In this challenging economy, your agent realizes that many people are simply looking to secure the least expensive automobile insurance available in order to simply fulfill the minimum state mandated requirements. This agent may therefore sell you insufficient insurance out of concern that you may go to one of the agent’s competitors and purchase a less expensive policy from that competitor, or may not take the time necessary to make sure that all necessary information is disclosed on the insurance application. You MUST be proactive and take the time to review the insurance application to make sure the information is correct, and that all pertinent information requested is provided. 

On many occasions, I have seen clients frustrated over their insurance company’s denial of their medical benefits incurred following a car accident because they did not take the time to review their insurance application. During these occasions, after a claim for medical benefits, people then often receive the insurance company’s denial of medical benefits based on a “material misrepresentation.” The most common example of the insurance company’s “material misrepresentation” defense involves the named insured failing to disclose resident relatives in the same household. It does cost more to insure an individual who resides with his wife and kids than it does to insure that same individual who resides alone, but it is imperative to purchase not only enough insurance, but also proper insurance in compliance with the information requested on the application. In Florida, there is a presumption that if you signed it, you understood what you signed. It is typically not a good excuse to respond to a material misrepresentation claim by saying “my agent did not explain that I also had to list my household family members,” when the application clearly requests that information be provided. No one expects to be in a car accident, but you need to be proactive just in case one does occur. Therefore, review your insurance application carefully to make sure all the information requested is provided accurately. We are available to answer any questions you may have and to review your insurance information with you.

1. If you are able to safely do so, move your vehicle out of the way. Turn on your emergency flashers. Make sure your vehicle is securely in “park.” Don’t cause a second accident by rushing to deal with the accident that has already happened.

2. Are you injured? If so, call 911 immediately and immediately tell the operator this is an accident with injuries so an ambulance can be dispatched without delay. Don’t assume your injuries aren’t serious. Let trained professionals diagnose you and, if necessary, treat you.

3. If you are not injured and you can safely do so, check everyone else involved in the accident for personal injuries. Now is not the time to argue about whose fault the accident is, etc. Check for injuries and call 911 immediately. Tell the 911 operator up front that this is an accident with injuries, if that is the case.

4. Even if there are no injuries, call the police. ALWAYS. Let the police do their job and document the accident. Sometimes even seemingly minor accidents turn out to be something more. It doesn’t matter if you caused the accident or someone else did – protect yourself by calling the police.

5. While waiting for emergency personnel, NEVER stand in the roadway or in front of your car. Other drivers often gawk at an accident scene. Don’t survive a fender bender merely to become a wrongful death victim. Get safely out of the way. If your car is in the roadway, warn oncoming drivers as best as you safely can.

6. If you are not injured, take pictures. If you are injured and someone is with you who isn’t, ask them to take pictures. Most cell phones today take good quality pictures. Photograph the vehicles (take multiple pictures of the property damage) and the scene (taking particular care to document skid marks and debris in the roadway).

7. DO NOT DISCUSS HOW THE ACCIDENT HAPPENED WITH ANYONE OTHER THAN THE POLICE. Cooperate fully with the police. Tell them what happened. In Florida, statements made to police officers following a simple car accident are privileged and cannot be used against you in a civil case. Admissions of fault to others can always be used against you; they are NOT “hearsay.”

8. Be sure you exchange information. Do not leave the scene without getting the name, address, phone number, license plate number, driver’s license number, and insurance information (name of company, policy number & name and number of agent) for all drivers – regardless of whom you believe to be at fault for the accident. Get as much information you can from all potential witnesses. If a helpful witness needs to leave, take their name, address, and telephone number so they can be contacted later.

9. Report the accident to your insurance company ASAP. You have a duty to cooperate with your insurance company’s investigation. Do NOT discuss the accident with an adjuster representing one of the other drivers. This adjuster is not your friend and is really trying to have you say something helpful to her insured.

10. If you are injured, call us. Personal injury and wrongful death is what we do. Please visit our web site for additional information about our experience and qualifications: www.lesserlawfirm.com