To litigate a Florida personal injury lawsuit, the action must be filed within the prescribed period set by statute and in the correct forum. The time period may differ, depending on the type of negligence action, and can potentially be changed by a contractual agreement between the parties to the case. Likewise, certain criteria set by statute must be met to file an action in state or federal court, and these can be limited even further by contractual agreement. The federal Eleventh Circuit Court of Appeals in Chang vs. Carnival Corp. (Case #: 14-13228) addresses these limits, reviewing whether or not the injured passenger attempted to file suit within the contractually agreed upon parameters set by her cruise ticket.

The injured passenger slipped and fell while on a cruise on December 9, 2012. The injured person’s ticket included a forum selection clause, which limited the time to file suit to one year and required the suit to be filed in the Southern District of Florida federal court, as long as subject matter jurisdiction requirements were met. Wet FloorIf those weren’t met, the forum selection clause then limited any state court filings to occur in Miami-Dade County, Florida. The injured passenger initially hired an attorney based in California. The attorney was twice notified by the cruise line that it would not waive the forum-selection clause on September 4, 2013 and October 22, 2013. The injured passenger then hired counsel in Florida, who filed suit on December 4 or 6, 2013 in state court instead of federal court, as required by the forum selection clause. The cruise line moved to dismiss the state court action. While the motion to dismiss the state action was still pending, the injured passenger’s counsel then filed suit in federal court, nearly three months after the one-year limitation had already passed.

The cruise line filed for summary judgment in the federal court action, again pointing to the failure to file within the prescribed deadline at the correct location. The injured passenger argued that the limitation had equitably tolled, and the case should not be dismissed, since she tried to meet the requirements of the forum selection clause. On appeal, the injured passenger pointed to another, similar case in which the federal court allowed a different injured passenger to continue with his negligence action, despite filing after the one-year deadline and in state court. (See Booth v. Carnival Corporation, 522 F.3d 1148 (11th Cir. 2008).) The circuit court acknowledged they did find in favor of the injured passenger in that case, noting that equitable tolling occurs when four things happen. First, the state court must possess subject matter jurisdiction concurrently with the federal court. Second, the state lawsuit must have been dismissed solely on the ground of improper venue. Third, the defendant must have been aware prior to the expiration of the limitation period that the injured person intended to file suit. Fourth, the injured passenger must be entitled to believe that his state filing might be sufficient, since defendants are able to, and often do, waive the defense of improper venue.

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In a Florida car accident lawsuit, the injured party or parties must show that the injury alleged was caused by the accident. To assist with this, a general rule exists in Florida that a plaintiff is entitled to recover at least the medical expenses incurred for any reasonably necessary diagnostic testing. However, exceptions do exist, which are explored in a recent state appellate decision, Finkel v. Batista (No. 3D15-2509).

In this case, a couple was hit in a fender-bender by a man who was found to be 100% liable for the accident.  Rear-ended carA second trial was held to determine whether the accident caused loss, injury, or damage to the injured woman. The jury returned a verdict awarding zero damages, and the trial court granted a new trial because the jury did not award anything for the diagnostic testing expenses. The defendants appealed, arguing the verdict should stand because the testimony given at trial by the injured person’s expert fell into an applicable exception to the general rule providing for diagnostic testing.

During this trial, the injured woman had her orthopedic surgeon testify. He opined that the accident caused a partial, permanent injury to her lower back but admitted on cross-examination that the injured woman failed to disclose other accidents in her personal history. The woman had previously been in another car accident and suffered a slip-and-fall injury. Both led to hospital visits to treat back pain. When confronted with this information, the surgeon acknowledged that his opinion may have changed if he had known about these undisclosed incidents. Other evidence indicated that the accident did not cause the injury. The defendants’ expert agreed that diagnostic testing was reasonably necessary to determine whether the accident caused the injury, but he also said that an opinion is formed on the assumption the information given is truthful.

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If you are in an auto accident, and the at-fault driver does not have insurance or enough insurance to cover your damages, you, as a policyholder, can look to your own car insurance for coverage under your Uninsured/Underinsured Motorist (UM) provisions. UM policies can help relieve the burden of medical expenses and lost wages, but only if all of the coverage available to you is actually paid. If an insurance company fails to uphold its contractual obligation to pay for claims covered under the policy, a bad-faith action may be filed if the insurance company does not use diligence and care in the investigation and evaluation of the claim, as required by state law. The federal Eleventh Circuit Court of Appeals recently looked at a bad-faith claim in Cadle v. Geico General Ins. Co. (No. 15-11283) to determine whether or not the District Court erred in granting a judgment as a matter of law to the insurance company.

In this case, a woman was rear-ended by a man on I-95. She was insured with a stacked UM policy with a $75,000 limit. The at-fault driver only had a policy with a $25,000 limit. Following the accident, she sought treatment for her pain, but nothing provided relief. The injured woman had previously been in a car accident 18 years before, but she had been doing well prior to the accident at issue. Busted tail lightThe injured woman’s pain continued for the next several years, ultimately resulting in a surgery that removed the 20-year-old facet in her neck and replaced it with a larger facet to stabilize her neck. The cost of all the pain management and surgery totaled over $120,000.00. The insurance company requested the medical records for the care from that accident, and upon review, it only initially offered $500 to settle her UM claim, later increasing it to $1,000. After 2 1/2 years of claims and requests for information, the insurer served the injured woman with a proposal for settlement. The case went to trial in Florida’s state court system, where the jury awarded $900,000, off-set by collateral sources and prior bodily injury settlement. The judge then limited the gross verdict to the amount of the UM policy limits of $75,000 but noted that she was free to pursue other causes of action, including a bad-faith cause of action.

At the federal bad-faith trial, the insurance company provided an expert witness who testified the insurance company did not receive any medical record stating the woman had suffered a permanent injury from the accident. At the end of the trial, the insurance company moved for a directed verdict, stating that the injured woman failed in her burden of proof to show that the insurance company did not accept her demand for the policy limits in the UM benefits. The trial court ultimately agreed with the insurance company, finding that the injured woman and her counsel should have provided the medical records to the insurance company. The federal trial judge ruled that the insurance company was not obligated to conduct their own medical examination to determine a permanent injury. The Circuit Court of Appeals agreed with the District Court’s determination that there was no evidence presented at the trial to show that the insurance company had notice of her permanent injury and therefore was obligated to offer a settlement. Since the injured woman already received economic damages through the payments of PIP, the at-fault driver’s insurance limits, and her own UM policy limits, the judgment as a matter of law was upheld, and she did not receive any additional damages, due to the lack of proof she suffered any permanent injury.

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Maximizing damages in personal injury cases can be more than negotiating and litigating with the at-fault party. If there are unpaid or underpaid medical bills, hospitals and other medical service providers can seek reimbursement from the injured person. Insurers may also seek reimbursement from the policy-holder or from another insurer, depending on how much was paid, if there were multiple insurers obligated to pay, and what was agreed upon in each policy. In Humana Medical Plan Inc. vs. Western Heritage Ins. Co. (No. 15-11436), the Eleventh Circuit Court of Appeals assessed whether or not a corporate insurer, acting as an Medicare Advantage Organization (MAO) under Medicare Part C, can sue the insurer (the primary payer) for a hotel chain that settled a personal injury case with a woman injured on hotel property.  Florida HotelThe MAO initially sought reimbursement from the injured woman and her husband, but then it chose to pursue the insurer, creating new federal case precedence for Florida.

Following the premises liability accident, the injured woman sought medical treatment, which was billed to and paid by the MAO at $19,155.14. After the woman sued the hotel property, the MAO sent her a bill in the same amount, which is allowed under Part E of the Medicare Act (known as the MSP), under which Medicare payments are secondary and reimbursable if any other insurer is liable. This includes a personal injury defendant’s insurer. The amount was not appealed by any party to the action. As part of the settlement, the insurer and hotel chain tried to include the MAO on the settlement draft. The injured woman and her husband refused and sought sanctions for non-compliance with the settlement agreement. The amount was held in trust, and the hotel chain paid $115,000 to the couple. The insurer then went after reimbursement from the hotel’s insurer under the MSP private cause of action, 42 U.S.C. § 1395y(b)(3)(A), which allows double damages. The Florida federal district court granted summary judgment to the MAO, ordering the double damages under the MSP, and the hotel’s insurer appealed.

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As previously discussed, nursing homes occasionally use Arbitration Agreements, which funnel liability disputes to an arbitrator instead of the state or federal civil court system. Recently, several opinions have been issued from Florida District Courts of Appeal that have ruled on whether or not a nursing home resident is bound by the arbitration agreement when she or he did not sign the agreement prior to her or his stay at the facility. The courts have come to conflicting conclusions on this matter. Contract Signature LineThe Supreme Court clarified what’s appropriate under the law in Florida in Mendez vs. Hampton Court Nursing Center, LLC (No. SC14-1349).

In Mendez, the son of a now-deceased resident filed suit against the nursing home for negligence after his father lost his left eye due to an infection acquired during his stay at the facility. The father passed away during the proceeding, and the son moved forward with the case on the estate’s behalf. The nursing home moved to compel arbitration, and the Second District granted it, ruling the resident father was bound by the agreement as a third-party beneficiary, even though the son was the one who signed the agreement. The son appealed.

The Supreme Court first cited 21 Williston on Contracts § 57:19, at 181 (4th ed. 2001), which states that third persons who are not parties to an arbitration agreement are generally not bound by the agreement. The court markedly rejected the approach taken by the First and Third Districts, which held that a resident is bound by the contract. The defendant encouraged the court to apply the doctrine of third-party beneficiaries, under which a person sues to enforce a contract, even if they are not a party to the contract. In this scenario, the clear or manifest intent of the contracting parties that the contract primarily and directly benefit the third party must be shown.

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Nursing homeIf a family member goes into a nursing home, a lot of paperwork must be completed. This can be overwhelming, and one may lose track of everything signed. Several nursing homes require the signature of an arbitration agreement before the resident is admitted. An arbitration agreement is a contract between two parties who agree to see an arbitrator, who is usually picked by the facility, to settle any disputes arising from the resident’s stay at the nursing home. This is in lieu of a traditional lawsuit filed in the state or federal court system.
In Olson v. Florida Living Option (Case No. 2D15-5687), the Second District Court of Appeal reviewed an arbitration agreement and whether the negligence alleged by the estate of the deceased resident fell within the scope of the agreement.

The injured resident was injured while living at his most recent nursing facility. He had previously signed an arbitration agreement at a different assisted living facility in the same retirement community. Following the injury and death of the resident, the estate filed suit in the state court system against the nursing home and its parent company. The defendants moved to compel arbitration, using the signed agreement as proof the two were in the same community and affiliated with each other. The trial court granted the motion, finding that the arbitration agreement extended from the then-current residential facility to all future admissions.

The appellate court listed three things that it must consider in any determination of whether to uphold a motion to compel arbitration:  whether a valid agreement exists, whether an arbitrable issue exists, and whether the right to arbitration was waived. The court noted that, while an arbitration agreement can benefit a third party, like an affiliate nursing home, the nursing home company failed on the question of whether or not the scope extended to a third party. The court looked at the relationship between the contract and the claim at issue. The court felt the language of the arbitration agreement was broad in its scope regarding events, using “arising out of and relating to” language, but it limited the agreement to “this Facility.” The second facility to which the resident went did not have its own arbitration agreement, nor did it refer to one in the contract. Since there was no dispute that the second residence was a “separate facility,” the court determined the argument to extend the arbitration agreement to the injury at the second residence failed. The order compelling arbitration was reversed, and the case was remanded back to the trial court, where the estate of the deceased resident can pursue their original negligence action.

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The Florida legislature enacted the Motor Vehicle No-Fault Law, which provides Personal Injury Protection (PIP) benefits to those injured in a car accident. The benefits under Fla. Stat. § 627.736(1) allow motorists injured in a car accident to receive up to $10,000 in medical and disability benefits if the injured person suffered from bodily injury, sickness, disease, or death from owning, maintaining, or using a motor vehicle. To receive the maximum amount, there must be a determination that there is an emergency medical condition. Otherwise, the benefits are limited to $2,500. In Medical Center of the Palm Beaches vs. USAA Casualty Insurance Co. (No. 4D14-3580), the Fourth District Court of Appeal looked at what should happen when there is no determination of an emergency medical condition.

The injured driver in this case suffered from pain to her right shoulder and cervical region after a car accident. Physical TherapyA treating physician referred her to a physical therapy practice, which then submitted bills to the insurer. The injured person’s insurance company refused to pay, explaining that the injured woman had already met her $2,500 limit. The insurer, in its denial, requested a determination of the injured person’s emergency medical condition by an authorized provider. The physical therapist office sued the insurer for breach of contract for not paying the bill presented to them. Moreover, the same office also sent a note from the injured person’s treating physician, who diagnosed her with an emergency medical condition. The insurance company then paid all outstanding charges until the $10,000 limit was reached.

The trial court ruled in the defendant insurer’s favor on summary judgment, agreeing with the insurer that the limit is $2,500 in the absence of a determination of an emergency medical condition. The court also ruled that the defendant did not waive any defenses because it reimbursed the physical therapist office following the determination. The physical therapist office appealed, arguing that the opposite should occur. The office argued that the statute only limits the payment to $2,500 when a statutorily authorized provider determines there is no emergency medical condition. The physical therapist office’s position was that the default should be payment up to $10,000 in the absence of a negation.

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The Florida Supreme Court recently ruled on an issue in conflict between two District Courts of Appeal in Chirillo v. Granicz (No. SC14-898). Both district courts weighed which legal duty should be applied in wrongful death cases when a patient commits suicide while under the care of a physician or psychotherapist. In Florida, the first stage of an appeal after a circuit court trial is one of five district court of appeals. If these courts rule differently on an issue, it is up to the Supreme Court to determine which interpretation of the law is correct.

In Chirillo, the deceased patient changed medication from one antidepressant to another. The deceased patient stopped the new medication and alerted her primary care physician that she did so because of side effects like not sleeping well and gastrointestinal problems. The deceased reported to the office she was not “feeling right,” and her medication was changed to Lexapro. sadness-1546812-639x852 However, no other appointment was made with the primary care physician. After the patient committed suicide, the estate filed suit against the primary care physician, alleging he was responsible for her death. In this case, the Supreme Court reviewed the Second District Court of Appeal’s reversal of the trial court’s summary judgment in favor of the defendant physician. The trial court had determined a primary care physician did not owe a duty to the deceased patient just because he had knowledge of her depression and changed her medication. The appellate court ruled that the question was whether or not the physician exercised reasonable care in the treatment of the patient. Based on this assessment, the Court of Appeal felt summary judgment was improper because the deceased person’s estate’s expert witness testimony created a genuine issue of material fact regarding whether that duty was breached.

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In all Florida personal injury cases, the jury must decide whether to believe some or all of the version of events put forth by the plaintiff, or some or all of the version of events put forth by the defendant. Formally, they are tasked with determining any genuine issues of material fact. Case law places this task firmly in the hands of a jury. Judges, on the other hand, are responsible for determining matters of law, and they must allow the jury to hear all relevant evidence that is not precluded by law. In a recent decision, McNabb v. Taylor Elevator Corp. (2D15-4838), the district appellate court looked at whether or not an expert witness unveiled a genuine issue of material fact in his affidavit, and whether the trial court erred by ruling in favor of the defendants’ summary judgment, dismissing the case.

The injured party in this case filed suit after sustaining injuries from slipping on an oil leak near an elevator on the premises of a condominium complex.  Elevator Buttons An elevator seal broke prior to the accident, leaking into the machine room and out into the hallway where the fall occurred. The elevator service technician testified that the leak was dripping every two seconds and that the oil was a quarter-inch deep. The injured man alleged that the elevator and the surrounding area were negligently maintained. The defendants in the case (the condominium association and the elevator servicing company) filed for summary judgment, arguing that the testimony of the inspectors ruled out negligent maintenance, since there was no leak at the time of the inspection. The injured man submitted the testimony of his own expert witness, a mechanical engineer, who opined that the seal had been leaking for between 4 1/2 and 18 days. The expert based his determination on the rate of the drip, the depth of oil observed, and the dimensions of the machine room.

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In Florida personal injury and car accident cases, there are always four elements for an injured person or persons to prove:  1) a duty created by law directing the at-fault party to act in a certain way, 2) a breach of that duty, 3) an injury resulting from that breach, and 4) damages incurred from the injury. Often, appellate cases assess an error concerning one of the first three elements. In Safeco Insurance Co. of Illinois v. Fridman (5D12-428), the Fifth District Court of Appeal reviewed two questions on remand from the Supreme Court of Florida concerning damages. The first was whether there was an error in denying the defendant insurance company’s motion for mistrial, based on improper arguments made by the injured person. Busted tail lightThe second was whether or not the trial court should have granted the insurer’s motion for remittitur.

The underlying action began when the injured driver was hit by an uninsured motorist. The injured driver underwent surgery for his injuries three years after the collision, and an expert testified during trial that he would need to have fusion spine surgery in the future. At trial, the injured person provided proof of the injuries suffered as a result of the accident with an uninsured motorist, and he argued that he was entitled to damages from his insurance company. To show the damages he lost from the accident, both past and future earnings, the injured person described his work history preceding and following the accident.

Prior to the auto accident, the injured person had been an electronics salesman for several years, earning from $800 to $1,000 a week. For two years during this period, the injured person also ran a retail marble and tile store, but he was unable to testify about how much he earned from this business. After the accident, the injured person opened a wholesale marble and tile business for 20 days, stating he closed it because he could not lift the marble as a result of the injuries. Afterwards, he worked as a salesman again, first earning between $400 to $600 a week, then $500 to $600, and by the time of trial around $1,200 a week. During trial, an expert testified that he would not be able to work after a fusion spine surgery for three to four months. The injured person testified that if he had remained in the wholesale marble and tile business, he could have made $100,000 to $200,000, based on the profit margin for a square foot of tile. No other testimony or evidence was provided to support his assessment.

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