Defending Against a Personal Injury Lawsuit in Miami

If you have been served with a personal injury lawsuit in Florida — most often arising from a car accident, but sometimes from a slip and fall, dog bite, or other incident — the most important thing to know is that ignoring it will not make it go away. A Florida defendant who fails to respond to a complaint within 20 days of being served can have a default judgment entered against them, after which the plaintiff can pursue collection against your wages, bank accounts, and other assets. The next 20 days are critical.

The First Step — Notify Your Insurance Carrier

If the lawsuit arises out of a car accident or other event covered by your auto, homeowner's, umbrella, or business insurance, your first step is to notify your carrier immediately. Almost every liability insurance policy includes a "duty to defend" — meaning the carrier is contractually obligated to hire a defense lawyer for you (at the carrier's expense) and to indemnify you up to the policy limits.

Failing to give prompt notice can give the carrier grounds to deny coverage on a "late notice" or "prejudice to the carrier" theory. Do not wait. Send the lawsuit papers (the complaint and the summons) to the claims office that has been handling the matter, with a clear written request for defense and indemnity.

If Your Insurance Carrier Refuses to Defend

Sometimes a carrier disputes coverage and refuses to provide a defense. This puts you in a serious position because you must respond to the lawsuit within 20 days regardless of the coverage dispute. If you find yourself in this position, hire your own counsel immediately to:

• File an answer to the complaint to avoid default
• Pursue a separate action against the carrier for breach of the duty to defend
• Negotiate with the plaintiff while the coverage dispute is resolved

The 20-Day Deadline

Florida Rule of Civil Procedure 1.140(a)(1) requires a defendant to serve a response (typically an answer, but sometimes a motion to dismiss or a motion for more definite statement) within 20 days after service of the complaint. Service is most often accomplished by personal delivery of the summons and complaint to you by a process server or sheriff's deputy. The 20-day clock starts the day you are served, not the day you read the papers or the day you call your lawyer.

Defenses That May Be Available

Personal injury defendants in Florida have a range of potential defenses depending on the case:

• Comparative negligence. Florida applies modified comparative negligence with a 51% bar — if the plaintiff was more than 50% at fault, recovery is barred entirely.
• Statute of limitations. For negligence claims arising on or after March 24, 2023, the statute is two years.
• Assumption of risk in some recreational contexts (gym injuries, equine activities, sports).
• Failure to meet the serious injury threshold in auto cases under § 627.737.
• Failure to satisfy § 768.0755 in slip and fall cases — the constructive-knowledge requirement.
• Lack of causation — the alleged injuries were not caused by the incident.
• Pre-existing conditions that account for the alleged damages.
• Florida Statute § 768.0755 in slip and fall cases.
• Sovereign immunity in cases against government entities.
• Statutory caps on damages in certain categories.

What Not to Do

• Do not call the plaintiff or the plaintiff's lawyer to "explain your side." Anything you say can be used against you.
• Do not destroy or alter any evidence related to the incident — your texts, your phone records, your vehicle, your camera footage. Spoliation of evidence has serious legal consequences.
• Do not delete social media posts related to the incident or the plaintiff. Defense lawyers will subpoena your accounts and any deletions can be used against you.
• Do not admit fault in writing or in conversation with anyone other than your own lawyer.
• Do not ignore the lawsuit. Default judgments are real and they cost real money.

Settling vs. Defending

Many personal injury lawsuits resolve through settlement before trial — usually within the limits of the defendant's available insurance. Whether to settle and on what terms is the carrier's decision in most cases (subject to the duty of good faith owed to you), but you have the right to be kept informed and to give consent in many policies. If the demand is within policy limits and the carrier refuses to settle, the carrier may face third-party bad-faith exposure for any later excess judgment against you.

Reading the Complaint

The first task of defense counsel is a careful read of the complaint paragraph by paragraph. Florida is a fact-pleading state — under Rule 1.110(b) the plaintiff must allege ultimate facts supporting each element of each cause of action. Many complaints contain conclusory allegations that can be challenged by a motion to dismiss for failure to state a cause of action, or by a motion for more definite statement under Rule 1.140(e). Causes of action typically asserted in a Florida personal injury complaint include negligence (with subsidiary theories such as negligent entrustment, negligent hiring, and negligent maintenance), strict liability, breach of warranty, premises liability under § 768.0755, dram-shop liability, and respondeat superior. Each theory has its own elements and its own defenses. A defense lawyer who does not unpack the complaint into its constituent legal theories misses opportunities to narrow the case before discovery begins.

Affirmative Defenses That Must Be Pled

Under Florida Rule of Civil Procedure 1.110(d), most affirmative defenses are waived unless pled in the answer. Common affirmative defenses in personal injury cases include:

• Statute of limitations under § 95.11(3) — two years for general negligence since HB 837
• Comparative fault under § 768.81, with the 50% bar
• Assumption of risk in limited recreational contexts, including the spectator-at-sporting-event doctrine under § 768.1305
• Lack of duty — for example, no special relationship triggering a duty to control third-party criminal acts
• Intervening or superseding cause — an unforeseeable later event broke the chain of causation
• Failure to satisfy the PIP threshold under § 627.737 in auto cases
• Failure to satisfy the constructive-knowledge requirement under § 768.0755 in transitory-substance slip cases
• Pre-existing condition as the cause of the alleged damages
• Failure to mitigate damages by foregoing recommended treatment
• Fabre non-party notice identifying other potentially-at-fault actors whose share of fault must be apportioned by the jury
• Sovereign immunity and the § 768.28 damages caps in claims against government entities
• Release, accord, satisfaction, and payment when the plaintiff has previously settled with another defendant covering the same injury

An answer that fails to assert each available defense at the outset risks waiver. Amendment to add defenses later is allowed under Rule 1.190 but is subject to the court's discretion and prejudice analysis.

Working With Insurer-Appointed Counsel

When a liability insurer provides a defense, it typically selects and pays defense counsel. Florida law recognizes a tripartite relationship: the lawyer represents the insured, but the insurer pays the bill and directs aspects of the defense. Conflicts arise when the carrier reserves rights on coverage — for example, asserting that some claims may fall outside the policy. When that happens, the insured generally has the right to independent counsel paid by the carrier (often called Cumis counsel after the California decision recognizing the principle, with Florida analogues recognized in Florida Insurance Guaranty Association v. Giordano and related cases). If you receive a reservation-of-rights letter from your carrier, do not assume the assigned defense lawyer is fully aligned with your interests. Independent review by personal counsel — paid by you or arguably by the carrier — protects against being steered toward an excess judgment that becomes your personal exposure.

Coblentz Agreements and the Insured Acting Alone

When a carrier wrongfully denies coverage or refuses to defend, the insured is not without options. Under Coblentz v. American Surety Co. of New York, 416 F.2d 1059 (5th Cir. 1969), and its Florida progeny, an insured who is left to defend alone can enter into a consent judgment with the plaintiff and assign rights against the carrier. The plaintiff then pursues the carrier directly for the judgment amount. The agreement must be reasonable, made in good faith, and untainted by fraud or collusion. Coblentz strategy requires careful execution — done wrong, it can compromise both the underlying defense and the later bad-faith case. Done right, it can resolve catastrophic exposure when a carrier abandons its insured.

Discovery Strategy on the Defense Side

Florida discovery is broad — Rule 1.280 allows discovery of any non-privileged matter relevant to the subject matter of the action. Defense priorities typically include:

• Plaintiff's complete medical history through authorized release and subpoena to prior providers — looking for pre-existing conditions, prior injuries, and credibility issues
• Plaintiff's social media history — Facebook, Instagram, TikTok, fitness apps
• Plaintiff's employment records and wage history
• Plaintiff's prior litigation, claims, and insurance history
• Surveillance — particularly when the alleged injury restricts physical activity
• Independent medical examination under Rule 1.360
• Deposition of the plaintiff, treating physicians, and witnesses

Defense counsel who runs discovery effectively can often move a case to favorable resolution at mediation rather than trial.

Mediation, Summary Judgment, and Trial

Nearly every Miami-Dade civil case is referred to mediation before trial. The 2023 amendment to Rule 1.510 brought Florida's summary-judgment standard into alignment with the federal Celotex/Anderson/Matsushita framework, making summary judgment more readily available than under the old Florida standard. A focused summary-judgment motion on a discrete issue — causation, threshold injury, lack of constructive knowledge, statute of limitations — can dramatically improve settlement leverage even when the motion does not fully dispose of the case. When mediation fails and summary judgment is denied, trial is the next step. Most Miami-Dade personal injury cases are tried before six-person juries with strict time limits set by the trial judge.

Declaratory Judgment on Coverage Issues

When coverage is disputed, the insured (or in some cases the carrier) can file a declaratory-judgment action under Florida Statute Chapter 86 to obtain a binding judicial ruling on the existence and scope of coverage. A dec action filed early can resolve the coverage question before the underlying liability trial, eliminating the need for risky Coblentz strategy or the uncertainty of post-judgment bad-faith litigation.

If you have been sued in Miami-Dade, Broward, or Monroe County for a personal injury claim and need defense counsel, contact the Law Offices of Albert Goodwin. Call 786-522-1411 or email [email protected].