Reward for Insurance


by Kevin K. Ross-Andino, Esq.

Do you have employees who drive company vehicles in the state of Florida? Accidents happen, and you should know that if you possess personal injury protection insurance AND your plaintiff has not suffered a “permanent” injury, then you may be exempt from liability for tort, or non-economic damages. While state law requires that automobile owners in Florida carry personal injury protection insurance, it also “rewards them for doing so by exempting them from liability for noneconomic damages except in cases involving permanency or death.”

Section 627.737(1) of the Florida Statutes exempts a defendant “from tort liability for damages because of bodily injury arising out of the ownership, operation, maintenance, or use of [a] motor vehicle to the extent that” insurance benefits are payable for such injury. Section 627.737(2), in turn, allows for an action to be maintained for tort damages, such as “pain, suffering, mental anguish, and inconvenience, “but only if the injury meets what’s been termed a “permanency threshold.” Specifically, the plaintiff must show that the resulting injury or disease consists in whole or in part of:

  1. Significant and permanent loss of an important bodily function.
  2. Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.
  3. Significant and permanent scarring or disfigurement, or
  4. Death.

The Florida Supreme Court has articulated and attributed multiple purposes for this statutory “reward,” including:

  • a lessening of the congestion of the court system,
  • a reduction in concomitant delays in court calendars,
  • a reduction of automobile insurance premiums,
  • an assurance that persons injured in vehicular accidents would receive some economic aid in meeting medical expenses and the like, in order not to drive them into dire financial circumstances with the possibility of swelling the public relief rolls.

In short, the legislative theory is that if every automobile has personal injury protection insurance coverage, “injured motorists will be reimbursed by their own carriers for most of their economic damages regardless of fault, and negligence actions against third parties will be limited to the more serious cases.”

It’s important to remember that in order to be effective, you have to invoke the statute as an affirmative defense and show that you are covered by personal injury protection insurance. Nonresident policies that comply with the Florida no-fault law requirements will also suffice.

Once the affirmative defense is established, it is the claimant’s responsibility to establish that he/she has suffered a “permanent” injury “within a reasonable degree of medical probability.” This is an issue of fact that will be determined by the jury (or factfinder). But because it is “based on a reasonable degree of medical probability [the] requirement that can only be satisfied by expert medical testimony.” Thus, the question of “permanent” injury becomes an expert battle for the heart and mind of the jury.

Don’t forget to keep your insurance current, and don’t hesitate to contact us with any questions!