Many considerations are made when filing a Florida car accident lawsuit. The injured person must name and notify all parties responsible for the injury, think of the experts needed to connect the defendants’ actions to the injury, and collect documentation to show the damages amount needed to cover the incurred hospital bills and lost wages. An important decision, albeit less obvious, is where to file the lawsuit. In a car accident lawsuit, an action may be filed in the home county of the insured, the county of residence of the defendant, or the county where the accident occurred. A recent Fourth District Court of Appeal decision (No. 4D17-1546) reveals additional locations where a lawsuit may be filed when an injured person must file suit against an insurance company to receive uninsured/underinsured (UM) benefits.

This appeal stemmed from a lawsuit against two uninsured motorist insurers. The injured person was a resident of Broward County, and the uninsured defendant driver was a resident of Hillsborough County. Taking the wheelThe accident occurred on I-75 in Manatee County. UM claims were filed with his insurance companies, which were both denied. Both companies were foreign corporations. The injured person then filed suit in Palm Beach County, which contains an office for an agent of one of the insurers. One of the defendant insurers filed a motion pursuant to Florida Rule of Civil Procedure 1.060 to transfer to a different county, which was granted. The plaintiff appealed.

Chapter 47 of the Florida Statutes provides the guidelines for determining proper venue. If the defendant is a domestic corporation, the lawsuit can only be brought in the county where the corporation usually keeps an office to handle its usual business, where the cause of action happened, or where the property in litigation is located. Similarly, lawsuits against foreign corporations are brought where the business has an agent or other representative, where the cause of action accrued, or where the property in the litigation is located. If there is more than one defendant, Chapter 47 allows the lawsuit to be brought in any county in which any defendant resides.

In a recently issued Florida car accident decision (Case No. 2D14-5925), the Second District Court of Appeal affirmed a Florida circuit court ruling that found Chapter 2000-439, section 18, Laws of Florida to be unconstitutional. This ruling stemmed from a serious car accident case that resulted in two periods of multi-day treatment at a publicly funded hospital system. These stays cost a total of $84,199.99. Claims were filed against the driver and the owner of the car, who had insurance policies with separate insurers.

After each stay, the hospital recorded a claim of lien. Soon after the accident, the driver’s insurer offered the injured person to pay the limits of the driver’s bodily injury coverage as a “full and final settlement,” based upon the amount shown in the hospital lien. This was communicated by the injured person’s attorney to the hospital, who asked the hospital to write off the balance of the amount due. The hospital declined and proposed a counter offer of $6,666.66.  Fast CarsThe injured person then signed and delivered a release to the defendant driver’s insurer. The auto insurer provided a $10,000 check to the attorney representing the injured person for the bodily harm, a separate check to the attorney for property damage, and $10,000 worth of Personal Injury Protection (PIP) directly to the hospital. The owner’s insurer paid the bodily injury limit of $10,000 directly to the hospital.

The hospital then filed a lawsuit against both insurers of the defendants, alleging that each had impaired the liens the hospital recorded against the injured person and that the entire amount of the two liens over $84,000 remained unpaid. The owner’s insurer was dismissed from the lawsuit by joint stipulation, and the driver’s insurer filed a motion for summary judgment, claiming Chapter 2000-439, section 18, Laws of Florida is not permitted by Article III, §11(a)(9) of the Florida Constitution. The special act in question created the public health care system in Lee County, setting forth duties and powers for its maintenance and operation, including the enforcement and execution of liens. Article III of the Florida Constitution specifically states there can be no special law or general law of local application pertaining to the creation, enforcement, impairment, or extension of liens for clients based on private contracts.

When responsible drivers purchase car insurance, especially additional coverage for uninsured/underinsured motorist (UM) coverage, they believe they are ensuring payment when accidents occur. A recently issued opinion from Florida’s Second District Court of of Appeal presents all of the various considerations a claimant should have when seeking payment from the insurer. The plaintiff-appellant in this Florida auto accident lawsuit was injured as a passenger in her father’s car. The woman filed claims against the driver of the other vehicle, alleging the costs of her injury exceeded the policy limits of the defendant. The injured daughter was covered by two UM policies through her father and mother, each from different auto insurers. The father’s policy provided $20,000 worth of UM coverage, and her mother’s provided $25,000 of UM coverage.

The daughter sued her mother’s insurer for UM benefits but did not sue her father’s insurer.  Pushing throughThe circuit court found she did not satisfy the condition precedent in her mother’s policy, denying her benefits of any amount. The court additionally ruled that even if the condition precedent were satisfied, she would only be able to access the difference between the policies in the amount of $5,000.00. Her mother’s insurer moved for summary judgment after this assessment, knowing the statute of limitations prevented the injured person from obtaining the father’s policy limits, so she would never be able to satisfy the preceding condition. The injured person appealed.

The insurer’s policy stated that an injured party may not sue for benefits if they have not met the terms of the policy. The relevant parts of the mother’s policy stated that when the injured person is entitled to recover damages in excess of the other policy limit, the insurer will pay up to the UM policy limit after the other collectible insurance has been exhausted. Florida Rule of Civil Procedure 1.120(c) allows condition precedents to be generally made, but the party denying the occurrence or performance of a condition precedent must plead it with particularity and specificity.

In any Florida wrongful death case, the defendant’s goal is to deny liability and eliminate or minimize damages. Many tactics are used by defendants throughout the litigation to pursue this goal, trying to prevent a family from receiving the damages they need and deserve. The Third District Court of Appeal recently issued a ruling in a wrongful death action in which two major drugstore companies asked to quash a trial court order denying a request to shift the cost of discovery to the plaintiff-estate.Medication Pile The appellate court dismissed the petitions for lack of jurisdiction, citing the defendants’ failure to show the order created irreparable harm to the defendants.

The personal representative of the estate filed suit against the two drugstores, alleging they caused the victim’s death of multiple-drug toxicity by their collective negligence in filling the prescriptions. The plaintiff eventually filed an amended complaint that alleged one drugstore company filled 275 different prescriptions by 18 different physicians, and the other filed 95 different prescriptions by 10 different physicians. A majority of the prescriptions were narcotics. Soon after this amendment, the representative sought the personnel files of the employees of each pharmacy at the time the prescriptions at issue were filled.

One company moved for the representative to pay for the time of its counsel to review and redact the financial and health information from the personnel files of 40 identified pharmacists. The other drugstore company moved for the representative to be placed on a payment plan for unspecified costs associated with gathering the personnel files of 18 identified pharmacists. The representative did not contest the need for information to be redacted but objected to both companies’ requests of the court for the estate to pay for the costs of discovery.

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Florida’s statutes for punitive damages have gone through changes over the last 20 years. A recent decision issued by the Second District Court of Appeal (No. 2D16-1603) addresses arguments centered on which version of the punitive damages statute applied in a wrongful death action. In this case, a tobacco company appealed a second amended final judgment in favor of a daughter acting as the personal representative of her mother’s estate. The daughter filed a Florida wrongful death action against the tobacco company, alleging her mother’s death was caused by the company’s negligence, fraudulent concealment, and conspiracy to commit fraudulent concealment.

The daughter was awarded both compensatory and punitive damages. The jury found the company to be 60% responsible for the compensatory damages, awarding nearly $3 million.Gavel Resting It also awarded over $12 million in punitive damages as related to the conspiracy and concealment claims. The trial court had previously vacated the punitive damages award, which was then reinstated by the Second District Court of Appeal. Upon remand, the daughter moved for entry of the full amount into the judgment, but the company objected. It argued the punitive damages were subject to the post-1999 statutory cap. The trial court overruled the objection and entered the full amount of damages awarded, including interest. The tobacco company appealed.

The appellate court agreed with the trial court’s determination that section 768.73(1)(a) and (b), Florida Statutes (1995) applied rather than the post-1999 version that requires punitive damages to be capped at the amount that is three times greater than the compensatory damages award. The tobacco company had argued the post-1999 version applied because the daughter’s wrongful death action was based on her mother’s death in 2007. The company also attempted to argue that even if the pre-1999 version of the punitive damages statute applied, the daughter fell short of the legal requirements by not showing the damages award was supported by clear and convincing evidence.

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Florida auto accident litigation has many phases after the initial lawsuit is filed. Many appellate decisions focus on summary judgments or jury verdicts, but a lot of legal process can be left after a jury trial – especially in auto accident cases in which additional claims must be pursued separately. Post-trial motions can alter jury verdicts to the point they are unrecognizable from the amounts awarded by a jury of peers. Experienced personal injury litigators can make a huge difference by aggressively pursuing different avenues of legal relief and defending the amounts awarded by a jury.

This summer, the Third District Court of Appeal issued an opinion that dealt with an award of attorneys’ fees from the injured person to the injured cyclist’s insurance company. An underinsured driver hit the injured man, who was riding his bicycle in a pedestrian crosswalk. The injured cyclist alleged the collision caused severe and permanent injuries worth over $300,000.bicycleThe injured cyclist filed suit against his own auto insurer, asking for the UM (underinsured/uninsured) coverage through his personal auto insurance policy.

Prior to trial, his insurer provided a couple of proposals for settlement. The proposals gave notice of the insurer’s attempt to resolve the claims. Attached to the proposals were releases that broadly covered all present and future claims that he or any of his heirs or representatives may have. The injured person took the matter to trial, at which the jury found the injured cyclist and the defendant driver to be equally responsible for the injuries that occurred. The jury awarded $110,000 for past medical expenses, but it declined to award future damages, past pain and suffering, and future pain and suffering. The court conducted a post-trial hearing and considered motions by both parties. Ultimately, the court entered a final judgment in favor of the injured person for $5,000. The plaintiff appealed the final judgment, which was affirmed by the Third District Court of Appeal in a per curiam decision. Following that determination in its favor, the insurer then moved for attorneys’ fees, based on its proposal for settlement.

The Florida First District Court of Appeal recently issued an opinion regarding the coverage in an auto insurance policy for a woman severely injured in a motorcycle accident.  The woman’s mother had purchased “two-parent family” auto insurance coverage for herself, her spouse, and her children.  “Dependent children” were defined in the mother’s policy as natural children who are unmarried, under 25, and qualify as legal dependents for tax exemption purposes under the US Tax code. 

The injured woman filed suit and the matter eventually went to a jury trial.  Both witness and expert medical testimony were offered, providing conflicting accounts to the fact-finder.  The insurer claimed the injured woman was not in a coma long enough to qualify for coverage.  The appellate court found there was competent substantial evidence supporting the trial court’s findings of the injury.  The trial court agreed the type of injuries suffered were covered within the auto policy for the coma and third degree burns.  The court, however, did not agree the injured woman was a “dependent child” under the policy.  Standing motorcycleThe court determined she was ultimately not covered and the insurer was not obligated to pay benefits for her injury.  The family appealed. 

Case law directs courts to favor the plain language of an insurance contract.  The appellate court found the policy language to be extremely clear about the definition of a dependent.  The parties agreed the IRS definition for a dependent was based on Internal Revenue Code (I.R.C.) section 152 which allows a qualifying child to be anyone who bears a relationship to the taxpayer, shares the same principal place of abode as the taxpayer, meets the age requirements (under 19 by the end of the calendar year, or under 24 and a student); and has not provided more than half of the individual’s own support.  The insurer argued the policy’s definition contradicted itself with the phrase “under age 25”, which differs from the age requirements in Internal Revenue Code (I.R.C.) section 152.  When she was injured, the plaintiff was over the age of 19 and not a student nor disabled. 

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In Florida, an injured party or representative of an estate can pursue punitive damages in addition to compensatory damages in a Florida personal injury case if the plaintiff can show there is a reasonable basis for recovery of such damages. A defendant can only be held liable if the trier of fact finds the defendant engaged in either intentional misconduct or gross negligence. This finding must be based on clear and convincing evidence, a higher burden of proof than what is required for compensatory damages. The claim for punitive damages may be added following Florida Rule of Civil Procedure 1.190(f).

Research stackThe Third District Court of Appeal tackled a question regarding punitive damages in a recently issued decision (No. 3D17-1315). The parents and personal representatives of a deceased child filed suit against the owners, managers, and maintenance companies for the apartment complex where the fatal accident occurred. Their son died after a driveway gate fell on him. The parents moved to amend the initial claim to add one for punitive damages. Florida Rule of Civil Procedure 1.190(f) requires the plaintiffs to attach their proposed amended complaint to the motion. The parents included facts to help support their reasonable basis for recovery, but they only attached the amended complaint with the claims for punitive damages after the trial court had granted the motion to amend.

The defendants objected, and the appellate court agreed the Florida civil rule requires the party filing a motion to amend to attach the proposed amended pleading to the motion. The parents attempted to argue the rule allows plaintiffs to file a separate motion when the proposed amendment only adds a punitive damages claim. The Court of Appeal determined there’s no waiver or ability to dispense with the requirement within the body of the rule, applicable statutes, or relevant case law.

When one seeks damages in a Florida personal injury case, the question of where to file suit may not be one of the injured person’s top concerns. Filing an action in the county in which the accident occurred is straightforward, but occasionally the question of jurisdiction is more complex. Passengers on cruise ships from around the U.S. and across the world may be surprised to learn that they must file an action in Florida, where the cruise ship company is based. Agreements to litigate matters are included on the ticket, and these type of corporate-led arrangements are allowed by law. Similarly, cruise ship employees are bound by employment agreements and can be required to file suit in Florida.

A recent appellate decision (No. 4D17-514) addresses this topic. A cruise ship employee sued for negligence in Florida under the Jones Act, alleging the vessel was unseaworthy after he lost a finger and permanently damaged three others while mooring a supply vessel. The cruise ship corporation moved to dismiss, arguing forum non conveniens. Cruise shipsForum non conveniens is a common law doctrine that allows a case to be tried in a different jurisdiction that is more convenient, even though a local court technically has jurisdiction. This doctrine is also used to prevent plaintiffs from “forum shopping” for the best result when the choices involve international locations.

The cruise ship company in this case moved to dismiss, arguing the Florida county was an inconvenient forum and Florida had no true connection to the case. The company provided affidavits and contracts to the court, showing they sold the ship for scrap before the employee was hired by another company to help move the ship to India from the Bahamas. The ship made a stop in Namibia, where the injury-causing accident occurred. The company argued this sequence of events showed they did not have control over the ship, nor the employee. The company argued the ship was never docked in Florida after it was sold, the employee was not medically treated in Florida, and none of the witnesses were located in the state. The company pointed out they were initially and mistakenly listed as the owner of the ship in the employment contract, but they felt they had provided enough proof the ship had been sold and delivered to the buyer prior to the employee’s hire.

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After a serious car accident, the last thing you want is unexpected challenges. An experienced Florida wrongful death attorney can help guide you through the civil litigation process when a difficult period becomes overwhelming. In a recent case (No. 3D15-2750), the parents of a child faced the stressful situation of the defendant disappearing. Their child was killed in an auto accident, and they filed suit for wrongful death. When the defendant driver disappeared, the parents were unable to hold him accountable. Nevertheless, the parents continued their lawsuit.  Hand and wrist

The trial court entered two final summary judgments in favor of the parents. The auto insurer appealed, arguing the judgments were entered in error. The auto insurer notified the defendant driver of its reservation of rights to deny coverage, since the at-fault driver was not listed as a driver under the insurance policy. Soon afterward, the driver absconded and could not be found. The insurer notified the defendant of its reservation of rights a second time, since he failed to cooperate with the investigation. Over the course of this proceeding, several more letters notifying him of his reservation of rights were mailed. Despite this, the insurer continued to represent him for many years of the proceeding, including the post-judgment phase of litigation. The jury returned a verdict of over $15 million in favor of the parents, and the trial court entered a final judgment consistent with the verdict. The insurer then sought to decline coverage based on the defense of breach of cooperation.

The appellate court ruled that the insurer could not use this defense because it failed to follow the requirements of section 627.426 of the Florida Statutes (2015), the Claims Administration Statute. This statute prevents insurers from denying coverage unless they have sent a reservation of rights to assert a coverage defense to the named insured by registered or certified mail or hand delivery to the last known address of the insured within 30 days when they knew or should have known they needed to use the coverage defense. Within 60 days after this, or no later than 30 days before trial, the insurer must then give notice to the named insured of its refusal to defend the insured through registered or certified mail, obtain a non-waiver agreement, or retain an independent attorney who is mutually agreeable to the parties.