I’m going to say something right off the bat that I know won’t win me brownie points with Florida motorcyclists: You should all start wearing motorcycle helmets.
Before you scroll away, hear me out. This is not me getting preachy about the risks. You already know them. And it’s not that Florida’s motorcycle helmet law has changed. You still don’t legally have to wear one (assuming over 21 and have sufficient insurance, in accordance with F.S. 316.211).
This is about a recent state law change that will significantly impact the amount of damages you can collect if you’re injured in a crash while you aren’t wearing protective headgear – even if the crash wasn’t your fault.
As a longtime Fort Myers motorcycle accident lawyer, I have always been proud to advocate for the people in Southwest Florida who have been harmed in the course of their everyday lives through little-to-no-fault of their own. This includes Florida motorcyclists who aren’t breaking any laws in exercising their right to forego a helmet. This new law won’t shake that commitment. It will, however, make the job much harder.
Florida’s new comparative negligence standard is going to affect basically everyone who is filing a personal injury action in Florida from here out, but motorcyclists especially need to take heed.
Changes in Florida’s Injury Law Standards
The new tort reform measure, HB837, was rushed through the state legislature on the faulty premise that frivolous lawsuits are driving up insurance premiums. Not only is this incorrect, but we’d be willing to wager high stakes those auto insurance rates won’t drop much if at all.
There are many concerning elements contained in the new law, but it’s the altered comparative negligence standard we’re presently focused on. Overnight, we went from following a standard of pure comparative negligence to one of modified comparative negligence with a 51 percent bar.
Before we get into why that matters, let’s start with the fact that in many car accidents, motorcycle accidents, and bicycle accidents, more than one party is at-fault. Maybe you were speeding, but the other person entered your lane unsafely. In cases where there is more than one party at-fault, insurers and/or courts assign fault percentages. These can be used to determine how much the injured person is owed. For instance, if you’re assigned 20 percent fault and the other driver 80 percent and your total damages are $100,000, the other at-fault driver would be responsible to pay you $80,000.
Pure comparative fault, which is what we had before, allowed plaintiffs to be found up to 99 percent at-fault – and still collect the remaining 1 percent of damages from the other at-fault driver. (That’s not an ideal outcome for the plaintiff, of course, but it ensures everyone is accountable for their own actions.)
But now, we have a 51 percent bar on the plaintiff’s fault. What that means is if you’re more than 50 percent at-fault, you can’t collect any damages at all. The other driver could be 49 percent at-fault, and wouldn’t have to pay a thing.