Picture little Mary Jane. She is a sixteen-year-old Girl Scout troop mentor who just received her license. She is coming back from the beach where she and her troop were taking year-end photos. Although she is typically a very safe driver, she spills her iced tea, looks down in horror as the contents spill in her new Volkswagen, and all of a sudden rear-ends the car in front of her in the beach parking lot. Luckily, she is under an insurance policy that carries coverage limits of $1 million to protect victims of her negligence. The coverage will likely be sufficient for the damages sustained, and her insurance company will probably pay the whole bill for the injured victim; however, when a lawsuit arises and lengthy litigation ensues, although there is probably sufficient coverage, little Mary Jane is named personally as the Defendant.
Why is she named personally when there is likely sufficient coverage and her insurance company is paying for the Plaintiff’s injuries and damages? It is because of Florida’s non-joinder statute, or Florida Statute §627.4136. How does this effect Plaintiffs? Attorneys are prohibited from saying and, thus, the jury will be prevented from hearing, how much coverage a Defendant has, or even the fact that a Defendant has coverage at all. Indeed, the jury will not hear that the insurance the Defendant was safe enough to purchase will likely be the only money used to compensate the Plaintiff for injuries and damages sustained. When presented to the jury, it appears as if the case is against one individual and another. With that being said, although the jury takes an oath to remain neutral and fair, there is still the possibility there may be preconceived notions or feelings of sorrow or sympathy for little Mary Jane or Defendants alike. The 16-year-old Girl Scout troop mentor and her sob story of how this was an accident might, unfortunately, sway the jury, who might consider this girl’s life can be ruined with a verdict of $500,000 even though the Plaintiff has sustained permanent injuries and even though the insurance company will be paying this pursuant to its agreement to do so after the Defendant has paid the premiums to protect innocent injured victims.
Although the Defendant can be personally liable for any excess verdict, this scenario is rare and the Defendant has the option of filing bankruptcy, which would relieve his/her responsibility of having to pay the overage past the insurance coverage allotted anyway.
One reason lawmakers have adopted this statute is to protect insurance companies. The reasoning here is the jury may be more likely to render a higher verdict if it is aware there is insurance coverage rather than thinking there is a business owner, individual, or little Mary Jane who may suffer the monetary consequences. Thus, the jury will not hear the fact that the Defendant has little say in the decision-making process (the insurance company typically makes the decisions in the case and in the negotiation process) and that the Defendant does not hire his/her own attorney (nor do they pay for legal representation) because the insurance company appoints one for the Defendant.
For a perusal of Florida Statute §627.4136, see below.
627.4136 Nonjoinder of insurers.—
(1) It shall be a condition precedent to the accrual or maintenance of a cause of action against a liability insurer by a person not an insured under the terms of the liability insurance contract that such person shall first obtain a settlement or verdict against a person who is an insured under the terms of such policy for a cause of action which is covered by such policy.
(2) Notwithstanding subsection (1), any insurer who pays any taxable costs or attorney’s fees which would be recoverable by the insured but for the fact that such costs or fees were paid by the insurer shall be considered a party for the purpose of recovering such fees or costs. No person who is not an insured under the terms of a liability insurance policy shall have any interest in such policy, either as a third-party beneficiary or otherwise, prior to first obtaining a settlement or verdict against a person who is an insured under the terms of such policy for a cause of action which is covered by such policy.
(3) Insurers are affirmatively granted the substantive right to insert in liability insurance policies contractual provisions that preclude persons who are not designated as insureds in such policies from joining a liability insurer as a party defendant with its insured prior to the rendition of a verdict. The contractual provisions authorized in this subsection shall be fully enforceable.
(4) At the time a judgment is entered or a settlement is reached during the pendency of litigation, a liability insurer may be joined as a party defendant for the purposes of entering final judgment or enforcing the settlement by the motion of any party, unless the insurer denied coverage under the provisions of s. 627.426(2) or defended under a reservation of rights pursuant to s.
627.426(2). A copy of the motion to join the insurer shall be served on the insurer by certified mail. If a judgment is reversed or remanded on appeal, the insurer’s presence shall not be disclosed to the jury in a subsequent trial.
If you or a loved one have been injured due to the recklessness of another, call Dennis Hernandez & Associates, PA. (855) LAW-DENNIS or (813) 250-0000. For more information visit www.dennishernandez.com