Friday, May 20, 2011

Legislative changes to Crashworthiness Cases in Florida

On Wednesday, May 4, 2011, the Florida Legislature passed SB 142, a bill that significantly impacts all current and future products liability cases against auto manufacturers in Florida. Over the past three years, Cohen & Kuvin, LLC has serves on the front lines with a coalition of products liability experts, focused on countering the efforts of major car manufacturers' to reverse the states high court ruling in D'Amario v. Ford. Despite our best efforts, the auto lobby prevailed and successfully passed legislation designed to reduce their accountability and increase the burden on motorists who are victimized by defective products.
We have summarized the bill below to help our peers understand the legislation and the retro-active impact it can have on your current case load.

How does Senate Bill 142 change existing precedents in the law?

Senate Bill 142 reverses the Florida Supreme Court ruling in D'Amario v. Ford and undermines the crashworthiness doctrine. As you know the crashworthiness doctrine holds that the manufacturer of the vehicle is liable for the enhanced injuries sustained from the second collision. SB 142 protects the automobile manufacturers by allowing them to escape full liability for a defective product by placing blame on the tortfeasor who caused the initial accident instead.

How does SB 142 affect cases that I have currently filed?

It is unknown whether or not the retroactive clause of this law will ultimately be held unconstitutional, but certainly all objections to its application to cases currently in suit should be made and reserved. In many cases, the original tortfeasor's underlying policy has already been tendered and accepted based upon sound legal reasoning and advice by the attorney representing the injured party. To now have the tortfeasor listed on the verdict form as a fabre defendant would be fundamentally unfair to the injured party. That said, we anticipate many trial judges will rule the new law applicable to any case filed, and the actions and conduct of the tortfeasor leading up to the accident will most likely be allowed before the jury.

How does SB 142 affect future products cases?

Going forward, the conduct of the tortfeasor which causes the accident will need to be discovered and thoroughly weighted much more carefully than in the past. Rather than being able to accept his/her policy limits for any damage caused by the original action the tortfeasor must be viewed as a potential defendant in the crashworthy case. It will be vital that settlements for underlying auto policy limits be fully evaluated and not be rushed.

What can I do to protect my clients' rights if they have a product liability case?

Car manufacturers have just earned a golden opportunity to deflect responsibility to the original tortfeasor, and shirk their own obligations to build safe vehicles. SB 142 will reduce their incentive to be innovative and vigilant when it comes to vehicle safety, because they will now be able to shift blame and manipulate juries.

The climate in Florida has changed dramatically, and the consumers of this state are defenseless against the politicians and corporate lobbyists that seek profits over sound public policy. As advocates, we have a duty to understand the nuances of these decisions, and take the appropriate measures required to provide our clients with the best representation. The auto industry touted personal responsibility of motorists as justification for SB 142, all the while, shedding their own accountability.

As attorneys specializing in automotive safety and consumer justice advocates, it is our personal responsibility to ensure the rights of clients are protected. We hope this information is helpful to you and your clients, and encourage you to contact our firm with any questions about the passage of SB 142.

Cohen & Kuvin, LLC
Consumer Justice Attorneys
955 NW 17th Ave, Bldg. D.
Delray Beach, FL 33445

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