In Cases Involving Personal Injuries From an Accident, why is a Lawsuit Filed Against the Person Causing the Accident Instead of his or her Insurance Company?

Years ago, Florida allowed an injured person to sue the at-fault person or company’s insurance company directly, since that was who would pay for damages that were awarded for medical expenses, lost wages and pain and suffering from personal injuries. However, the insurance industry believed that juries would be overly sympathetic towards an injured person when compared to an insurance company resulting in unfairly large sums and lobbied the Florida Legislature accordingly.

The result is codified in Florida Statute § 627.4136, which was enacted in 1976 and is referred to as the “nonjoinder statute.” It provides that, before a liability insurer can be sued, a judgment must be entered against, or a settlement reached with, the person or entity at fault for causing the injuries. Once such a judgment or settlement has been reached, the insurer may be added as a party to the lawsuit in order to allow for collection efforts to proceed.

Because of this, the jury is kept unaware that an insurer will pay some or all of a judgment rendered against the at-fault person. Most injury cases that go to trial, at least here in the Jacksonville area, involve defendants who have insurance.

By the same token, an attorney for a defendant cannot suggest to a jury that the plaintiff seeks to have defendant pay a large sum, if that defendant is insured. This is because the statement is not true – the insurer, not the defendant, would pay for all or part of a resulting verdict.

This was established in the Jacksonville case of Hollenbeck v. Hooks, 993 So. 2d 50 (Fla. 1st DCA 2008), in which a new trial was ordered because the defense attorney stated to the prospective jurors during the jury selection process that he represented an individual and “not some fancy company, not some conglomerate.” In truth, that lawyer was hired by the defendant’s insurance company. It was clear the attorney’s statements sought to garner sympathy by suggesting the individual would have a more difficult time paying a judgment than a big company, when, in fact, a big company was exactly who would be paying any judgment rendered.

In injury cases, the one exception to this rule occurs when someone involved in a car accident files suit against his or her own automobile insurance company for uninsured motorist benefits. Uninsured motorist coverage protects the person purchasing it in the event that he or she is injured by a driver that either has no bodily injury coverage or that has bodily injury coverage that is insufficient to cover the extent of the injured person’s losses.

In a suit for uninsured motorist benefits, the injured person sues his or her insurer directly. It has been our experience in the Jacksonville area at least, that juries tend to find in favor of plaintiffs and award higher amounts in uninsured motorist claims as opposed to cases where the insurer is not a party to the lawsuit.

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