An injured driver will not be able to recover uninsured motorist coverage from her own auto insurer after she effectively agreed to dismiss this claim during a trial against another driver.
The claim in Millsaps v. Kaltenbach and State Farm Auto Insurance Co., before Florida’s Fourth District Court of Appeal, involved a crash occurring between two vehicles when the driver of the second vehicle allegedly took evasive action to avoid collision with a third unidentified vehicle.
Defendant driver of Vehicle 2 pleaded an affirmative defense; essentially, he conceded he had struck Vehicle 1, causing injury to the driver, but argued he only did so to avoid contact with Vehicle 3, and thus did not fail to exercise reasonable care.
Plaintiff here had a few possible theories to pursue here. She made the strategic decision at the eleventh hour to exclude the unidentified third party vehicle from liability, thus eliminating the claim for uninsured motorist benefits from her own insurer. In the end, this was not successful, as jurors found driver of Vehicle 3 was negligent, but not Vehicle 2. Because unidentified driver of Vehicle 3 was no longer listed as a defendant, uninsured motorist benefits were not an option, meaning plaintiff as limited to her own no-fault personal injury protection benefits, which are usually only between $2,500 and $10,000.
On appeal, plaintiff argued trial court failed as a matter of law in granted directed verdict to her own insurance company as to its liability on the uninsured motorist claim for the actions of Vehicle 3. However, appellate panel found plaintiff waived these claims at trial.
Plaintiff’s original complaint alleged negligence against driver of Vehicle 2 for causing the crash. Driver of Vehicle 2 responded with his affirmative defense, noting the negligence of Vehicle 3 driver. Subsequently, plaintiff filed an amended complaint adding State Farm as a defendant under the belief driver of Vehicle 2 was underinsured for the claim. However, plaintiff was later allowed to amend the claim again and assert negligence by driver of Vehicle 3, and uninsured motorist coverage for the actions of that driver.
However, prior to trial, plaintiff abandoned the UM claim against the auto insurer for the actions of Vehicle 3 driver, saying “We don’t wish to blame the (unidentified vehicle).” It was for this reason the court granted a directed verdict in favor of the insurer, and plaintiff did not object.
Later, jury instructions did include the question of liability by the driver of Vehicle 3, but only as an affirmative defense offered by driver of Vehicle 2. Plaintiff counsel made no objection to these instructions.
A jury verdict found no negligence by driver of Vehicle 3, and thus denied a damage award to plaintiff.
The appellate court ruled based on the 2013 precedent set by Hernandez v. Gonzalez, a party to a civil case can’t complaint about an error for which he or she is responsible or of rulings he or she invited the court to make. In this case, the inability to recover certain elements of damages was a foreseeable risk plaintiff took in dropping Vehicle 3/State Farm as a defendant.
It’s an unfortunate outcome, as it does seem based on facts plaintiff/driver of Vehicle 1 was not at fault at all in the crash either way. This is why it’s important to only trust your case to attorneys with experience and proven success.
If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.
Millsaps v. Kaltenbach and State Farm Auto Insurance Co., Dec. 10, 2014, Fourth District Court of Appeal
More Blog Entries:
Wright v. Carroll – Sudden Emergency Doctrine, Nov. 8, 2014, Lehigh Acres Car Accident Lawyer Blog
Posted in: Car Accidents