Written by attorney Matthew A. Dolman



Part 3: Florida’s Non-joinder statute

The final installment of this series concerning information missing from trial focuses on Florida’s Non-joinder Statute. As a ** St. Petersburg automobile accident attorney,** I cannot articulate the frustration we have with this very Statute. Section 627.4136 of the Florida Statutesconcerns the treatment of insurance carriers in civil actions. Subsection three of the statute allows insurance companies to include clauses in their contracts that preclude individuals (besides the insured person him or herself) from joining the company as a party defendant alongside the insured person prior to the verdict. The carrier can only be joined in an action once the verdict and damages have been decided by the jury and only for the purposes of entering final judgment or enforcing settlements.

What this statute means to you as a possible future plaintiff or juror, is that you will never hear about the defendant’s insurance throughout a personal injury trial. Attorneys are banned from mentioning: (1) The fact that a defendant has insurance or may be indemnified by insurance; (2) the type of coverage the defendant had; (3) how much coverage was in place at the time of the accident; and (4) any statement of fact concerning the significant impact of the insurance company on the litigation itself.

Basically, Florida’s non-joinder statute makes it a violation to utter any word, suggesting that a defendant, is protected against judgment by an insurance company. As far as the jury is concerned, the courts demand that the case is never between John Smith and State Farm, but rather between John Smith and Jane Doe (State Farm’s insured). To the jurors, every personal injury action is between one individual and another individual.

The purpose of non-joinder is, as you probably guessed, is protection of the Insurance carrier. It’s obvious that a jury will be more likely to deliver a verdict favoring a plaintiff if they are informed that John Smith (the plaintiff) isn’t trying to take Jane Doe’s house to pay his medical bills; and legal minds have determine that simply isn’t fair. Because juries will more likely award damages that will be covered by insurance rather than an individual, a family, or a small business, lawmakers have decided that juries shouldn’t be allowed to know about coverage.

The reasoning behind the law is curious. Clearly it is difficult to argue against the proposition that insurance companies will face biased outcomes if juries are informed of the existence of coverage. However, implementation of the law causes serious hardship to plaintiffs. Juries are misinformed and are left to infer that all pretrial negotiations and buildup involved the defendant named in the suit. However, the named defendants in personal injury trials have little or nothing to do with settlement negotiations or any real decision-making concerning their defense. The insurance company chooses the defendant’s attorney, makes decisions on whether to settle pre-trial, and even sends representatives to all hearings and mediation. But jurors never hear any of this at trial; instead, they are led to believe that John Smith v. Jane Doe is a battle between citizens with one party’s livelihood on the line. As a result, Plaintiffs are forced to overcome the prejudice caused by a deliberate statute-sponsored misrepresentation of fact to jurors, while insurance companies enjoy shelter from the truth of their own involvement in proceedings.

It is unlikely that many Florida residents understand Section 627.4136, or even know it exists. Jurors likely walk into the deliberation room believing that whatever verdict they hand down will be collected from the individual named defendant; that simply is not the truth. To repair the prejudicial imbalance created by Florida’s non-joinder statute, citizens must become informed about its existence.

Here are some basic facts to remember the next time that you are a juror in a personal injury or wrongful death action involving an auto accident.

  1. Florida Statute Section 324.151 requires that all owners and operators of motor vehicles carry liability insurance coverage for property damage and bodily injuries.
  2. Plaintiff’s Attorneys often carry the cost of litigation until a settlement is collected. This means that the attorney has no right to any compensation until the defendant actually pays the plaintiff a settlement or judgment.
  3. A favorable verdict at trial does not ensure that the plaintiff or any of his representatives will collect any amount based on the judgment.

These facts mean that it is almost always financially insane to litigate a personal injury action when the defendant does not carry liability insurance in violation of state law. Tortfeasors who do not have insurance coverage face personal liability for the damages that they cause while driving. This means that the tortfeasor’s personal property and all other assets (with the possible exception of a homestead) may be subject to a judgment lien imposed by the court. An individual without insurance could lose everything as a result of a judgment lien. That is why those with enough wealth to enable them to pay a judgment levied against them out of pocket almost universally carry insurance; it’s in their own best interests.

Consequently, individuals without auto-liability insurance are very unlikely to have enough personal assets to justify a lawsuit. Lawyers and plaintiffs alike would consistently lose money if these claims were regular; so they aren’t. Almost every personal injury/auto accident case that is tried in court involves a defendant that carries liability insurance. In addition, it is very likely that in the case of an uninsured defendant, you will hear of the defendant’s failure to observe Florida laws.

As a juror, you should understand that the verdict you deliver is highly unlikely to cost Jane Doe her house, and likely will not result in any persona l exposure to the defendant. Auto accident defendants do not even pay their own attorney’s fees. The insurance carrier provides legal counsel to their insured (the defendant) as well. So don’t be fooled by the misdirection you face in court. Remember who the real parties to your trial are. Remember that the defendant ‘s attorney you’re observing during a personal injury trial is not there to protect her own financial livelihood; she’s there to protect the insurance company and the company’s interest in paying as little as possible.

Dolman Law Group is a ** St. Petersburg personal injury law firm.**

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