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Montgomery v. Potter – Uninsured Driver Struck by Insured Motorist

Florida has one of the highest rates of drivers without auto insurance in the country – nearly one in four, according to the Insurance Information Institute. That doesn’t include the significant portion of drivers who are also woefully underinsured, meaning they don’t carry enough coverage to pay for damages in the event of a significant collision.airbag2

We often talk about this problem in terms of what it means when an insured driver is struck by an uninsured driver. In these cases, insured drivers must often rely on uninsured/underinsured motorist coverage from their own insurer.

However, when an uninsured driver is struck by an insured driver, the process is slightly less complicated, so long as the uninsured driver is not at-fault. He or she may receive a citation for driving without insurance. After all, it is against the law. But in these instances, the insured, at-fault driver’s coverage should kick in to pay for coverages of injury and property damage.

The major disadvantage would be if the at-fault driver in a Broward car accident didn’t have insurance either or didn’t have adequate insurance. In that case, the uninsured victim would not be able to seek uninsured motorist benefits. It would be possible to hold the at-fault driver personally liable, but the chances of collecting vary depending on the circumstances.

The issue is handled the same way in most other states. However in Oklahoma, prior to the recent state supreme court decision in Montgomery v. Potter, uninsured drivers were barred from recovering certain non-economic damages, such as pain and suffering. The Oklahoma Supreme Court has now declared this law unconstitutional.

According to court records, plaintiffs filed a negligence action against defendant following a crash in which plaintiff was rear-ended by defendant vehicle. Plaintiff and her 3-year-old son were injured as a result of the crash.

In her lawsuit, plaintiff sought damages for medical expenses, personal injury and pain and suffering.

However, at the time of the wreck, plaintiff was an uninsured driver. She reportedly allowed it to lapse just two months earlier. Just like in Florida, driving without insurance is against the law.

Unlike Florida, a state law specifically barred uninsured motorist from collecting certain kinds of non-economic damages – pain and suffering included. It’s called a “No Pay, No Play” law, which only allows collection of certain non-economic damages under special circumstances – none of which applied in this case. (Other states with similar laws include: Alaska, California, Iowa, Kansas, Louisiana, Michigan, New Jersey, North Dakota and Oregon.)

When the case went to trial, plaintiff argued the state law was in violation of the state constitution, and filed a motion for declaratory relief. Trial court ruled in plaintiff’s favor, finding the measure improper.

Defendant appealed, and the trial court certified its ruling for review by the Oklahoma Supreme Court, which accepted.

Ultimately, the court ruled the “No Pay, No Play” law was unconstitutional. Essentially, the legal foundation for the ruling was based on the fact a subset of negligence plaintiffs were set aside for different treatment. Here, it was on the basis of lack of insurance coverage. But this restricted damages for victim who would have otherwise been entitled to collect greater compensation.

Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights.

Additional Resources:

Montgomery v. Potter, Dec. 16, 2014, Oklahoma Supreme Court

More Blog Entries:

December National Impaired Driving Month, Dec. 23, 2014, Broward County Accident Lawyer Blog

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