Before a trial, there are many instances of communication that occur between the injured party and the defendant’s auto insurer. Sometimes a defendant’s insurer will offer to provide the Personal Injury Protection (PIP) Benefits or an amount within the policy limits early in the negotiating phase of the process. These settlement agreements often come with language requiring the party accepting funds to waive their right to pursue a civil action related to the matter at hand. A recent Third District Court of Appeal decision (No. 3d17-891) covers the considerations an party injured in a Florida car accident should make when discussing a settlement.

In this lawsuit, a party injured in a car accident filed suit against the policy holder. The defendant’s auto insurer sought permission to intervene so that it could seek enforcement of a settlement agreement it believed Desk fileshad been reached between the injured person and the defendant before a personal injury action was filed. The plaintiff was injured on December 24, 2013, treated at a hospital, and discharged in January. Soon afterward, the defendant’s auto insurer sent a letter to the injured person’s counsel, offering to provide the $10,000 bodily injury policy limit to settle the claim against the insured. The letter included a check and a standard release payable to the injured person, his attorney, and the treating hospital. The insurer provided an explanation for its inclusion of the hospital, stating it noticed a lien for the provided medical services. The injured person and his counsel did not respond, nor did they cash the check.

In the following year, the injured person retained a new attorney, who notified the insurer he was the counsel of record and presented a demand for the full policy limits. The attorney requested a settlement draft to his office by the end of the month, and the insurer indicated its willingness to comply and accept modifications to the letter. Another letter was sent, similar to the first one, with a check payable to the injured person, the attorney, and the hospital. The new attorney believed the payment to be a counteroffer, since it included the hospital as a joint payee, and rejected the settlement payment. The insurer and attorney continued to exchange communications, debating about whether or not a settlement had been reached. The insurer issued two more checks with the hospital removed as a co-payee. The injured person rejected both payments. The insurer then filed a motion to enforce the settlement. The matter was heard, and the insurer’s motion was granted to dismiss the lawsuit against the at-fault driver with prejudice, subject to the terms of the settlement agreement. The injured person appealed.

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A Florida personal injury judgment against an aesthetician and a spa was recently upheld by the Fourth District Court of Appeal. In Case No. 4D16-2530, a woman was injured after a facial at a spa went very wrong. The injured customer filled out a form advising she had the skin condition rosacea, which is a chronic inflammation of the face. Prior to the treatment at the spa, the condition was mild with only a rosy flush in Covered faceher cheeks. The aesthetician performing the facial admitted she did not read the form before the procedure, and if she had been aware of the condition, she would have used a different product or performed a test on a part of her face.

The plaintiff stated her face felt like it was burning during the procedure and continued to burn afterward. The injured woman’s face oozed and remained bright red. During the trial, the injured woman’s face was bumpy and easily turned red whenever the temperature increased or she was out in the sun. The pattern of bumps and redness were in the exact shape of the burn to her face. The woman testified at trial that before the injury, she had smooth skin and never wore makeup. After the incident, people would inquire if she was all right any time her face became red, asking what was wrong. The plaintiff stated that she now has to wear makeup to feel comfortable in public, and she has become more shy and awkward as a result of her appearance.

At trial, the injured woman presented several expert witnesses to the jury to help document the history and worsening of her skin condition. Her treating dermatologist related that her condition was mild and had been improving prior to the facial. Following the peel, he diagnosed her with severe irritant contact dermatitis, prescribing an antibiotic cream. The dermatologist tracked the continued inflammation and hyper-pigmentation in the months after the peel. A plastic surgeon also testified, describing his examination of the plaintiff after the chemical peel. He stated that her face had been permanently damaged because the peel removed the skin’s protective barrier. He opined that the disfigurement and scarring were permanent and that she’d need a lifetime of dermatological care to control the outbreaks of her skin. He stated she could never return to her appearance before the peel.

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When you file a Florida wrongful death action, the allegations themselves must meet certain criteria set by statutes and case law. The defending party must have notice of the allegations against them in order to appropriately prepare a defense for themselves. The allegations are all written in a complaint, which is filed with the civil court that has jurisdiction over the matter. These complaints must dictate a cause of action supported by law.

The Second District recently reviewed the dismissal of a complaint in Case No. 2D16-3615, filed by the Internal machinerypersonal representative of an estate against a hospital with allegations of vicarious liability, breach of a non-delegable duty, and negligence. The representative filed suit against several doctors and health care providers under the theory the deceased died from complications following a surgery at the defendant hospital to repair a hernia and succeeding procedures provided by other physicians at other hospitals. The trial court dismissed the case against the hospital where the first procedure was performed, and the estate appealed.

The deceased sought care from the defendant hospital, undergoing a procedure to repair his paraesophageal hernia. The surgeon used a surgical robot provided by the defendant hospital. During the operation, a part of the robot detached and became embedded in the deceased’s esophagus, causing complications to his health over the following months and years. An exploratory procedure was performed at a different facility three years later to assess the cause of the worsening symptoms. This was ultimately unsuccessful. Another exploratory surgery was performed at the same hospital, where the deceased’s vena cava vein was ruptured, leading to a large loss of blood, a heart attack, and finally his death. An autopsy revealed a small coil around the gastroesophageal junction, leading the representative to believe a part of the robot was left inside the patient at the original operation. The representative additionally alleged the foreign object last was seen at a CT scan prior to the second surgery.

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In Florida, an injured car accident victim can only recover future medical expenses if the care and cost are “reasonably certain” to be incurred. This is accomplished by meeting her burden to provide the fact finder with competent, substantial evidence that future medical expenses are more likely than not to be incurred. An injured party often uses treating physicians and medical administrative staff to relate the need for care and the cost of care. The Fifth District recently reviewed these types of damages in Case No. 5D16-533, in which a Gavel Restingjury awarded a large sum of money for several past and future intangible damages to a woman seriously injured in a Florida car accident, including $250,000 worth of future medical expenses.

The defendant driver appealed, and the court affirmed most of the verdict in favor of the injured woman, but it ordered a new trial or adjustment to the amount of damages, known as remittitur. The court emphasized that past medical expenses by themselves are not enough for a jury to use to calculate future medical expenses. In this lawsuit, the $5,365 for surgery was uncontested. The only testimony provided was about the previous medical bills and household goods and services used before the accident. The appellate court found this to be insufficient to meet the standards established by Florida case law precedent, and it reversed the award. The court allowed the parties to either enter a remittitur under section 768.043 of the Florida Statutes or be granted a new trial for the sole issue of the loss of future economic damages.

The Fifth District also assessed the collateral damages in Case No. 5D17-575 following a jury verdict in favor of a woman who was injured in a rear-end car accident case. The injured woman suffered shoulder, neck, knee, and low back pain as well as depression as a result of her injuries. The injured woman alleged she was unable to work due to her injuries, therefore losing a lot of income and the ability to earn income in the future. The defendant driver conceded fault but challenged the cause of the alleged injuries by the plaintiff and their respective costs. The jury returned a verdict awarding $50,000 for past medical expenses, $25,000 for future medical expenses, and $50,000 for past lost earnings. The jury declined to award any damages for future lost earnings.

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Personal injury litigation involves a lot of strategic anticipation. Even if a plaintiff is successful at trial, a defendant can ask for an adjustment, arguing the evidence did not support the amount of of damages awarded to the injured person. A Florida District Court of Appeal recently assessed a trial court’s refusal to grant Rear-ended carremittitur for a jury verdict awarding $100,000 for future medical expenses in an underinsured motorist (UM) car accident case.

The plaintiff was injured after a Florida car accident with an underinsured motorist. Even though the other driver admitted fault, her own insurance company refused to provide the requested UM coverage from the injured woman’s policy, arguing the alleged injury was not necessarily caused by the accident. The injured woman filed suit against her insurer for the benefits, and the jury awarded her $685,800, which included $158,000 for past medical expenses and $100,000 for future medical costs.

On appeal, the insurer argued the expert’s testimony was not properly disclosed prior to trial, that a treating physician should not have been able to testify as to why he referred the injured woman to a neurosurgeon, and that the comments made by the injured woman’s counsel during closing arguments were unfairly prejudicial. Upon review, the Court of Appeal did not find the trial court to have abused its discretion and affirmed the lower court’s rulings. However, the appellate court found the refusal to grant remittitur to be problematic.

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Expert witnesses help the finders of fact understand complex concepts in a personal injury action. In order to successfully be awarded damages, an injured person must connect the injury to the requested amount. An expert must be qualified to testify as a matter of law, and they may also be scrutinized by the jury and the court. Verdicts can be set aside if a judge concludes a jury could not have rightly entered a verdict in favor of the plaintiff based on the evidence presented.  hospital roomThis is seen in a recent Florida wrongful death appeal, No. 3D16-600.

The estate filed suit against the nursing home that provided the decedent care toward the end of her life. The estate asked for $400,000 for pain and suffering, as well as nearly $91,000 for funeral and medical expenses. The jury found for the estate but only awarded $5,000 in medical expenses and $1,133 for funeral costs. The trial court set aside this award and entered a verdict in favor of the defendant nursing home. The estate appealed.

The appellate court’s majority focused on the expert testimony offered by the plaintiff to help explain the decedent’s medical condition. The physician was an expert in family medicine but did not provide care to the decedent during her life. He provided opinions solely based on a review of her medical records, but many of the ones surrounding larger issues were contradicted by the records he used to form the opinions. The appellate court concluded the central issue was whether or not the expert witness had sufficient evidentiary weight to be submitted to the jury.

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Many legal discussions about time and deadlines in a personal injury action revolve around filing or answering something too late. Sometimes, an action can be filed too early. If a claim is added too early or too late, the litigation can either be dismissed or derailed. This is seen in a recent car accident case from the Third District Court of Appeal (No. 3D17-1086), which determined a third-party bad-faith action was filed prematurely against the defendant’s insurance company.

The plaintiff sustained an injury as a passenger in a vehicle after another woman struck the car. The Passing of timedefendant driver was insured with a bodily injury policy that provided coverage for $10,000 per person and $20,000 per occurrence. The injured passenger filed suit against the woman within a year of the accident but moved to amend the complaint to include the defendant’s insurer. In the amended complaint, the injured person added a third-party bad-faith claim against the defendant’s insurer.

The insurance company moved to dismiss, arguing the bad-faith claim had not accrued and was premature. Section 627.4136 of the Florida Statutes requires a person seeking an action of liability against another party’s insurance company to obtain a settlement or verdict against the insured of the policy first. The trial court did not dismiss the claim against the insurer, instead choosing to abate the action until the negligence case against the driver was resolved. The insurance company appealed.

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In a slip and fall case, the location of the accident often determines which venue is appropriate for a civil action. Sometimes if one files suit against a business, the injured person may choose to file suit in the state where the corporation’s headquarters are located. In an appellate decision out of the Third District Court of Appeal, the court reviewed whether or not the state court system was an appropriate venue for a slip and fall that occurred while a woman was about to embark on a cruise.

The injured passenger alleged the corporation had a duty to supervise, control, and direct the crowd using the escalator as they collectively boarded the ship. She claimed they failed to provide safe ingress and egress to the cruise ship by using a faulty entranceway. The cruise ship company moved to dismiss, arguing the venue was improper based on the forum selection clause.  Ship walkwaysWhen the passenger purchased her ticket, she agreed to all of the terms and conditions within it, including the selection of the U.S. District Court for the Southern District of Florida if an incident leads to litigation. The passenger asserted her case was properly filed in state court because the federal court lacked subject matter jurisdiction. The trial court agreed with the injured passenger and denied the defendant’s motion to dismiss, as well as the motion to reconsider. The cruise ship company appealed.

The state court of appeal noted the federal court’s general authority to hear maritime cases stems from the U.S. Constitution. They also looked at federal and state case law, which has long established forum selection clauses on cruise ship tickets are enforceable. The court concluded that federal court is the preferred venue, and it is only in the absence of admiralty jurisdiction when the proper venue is in the state court.

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When serious injuries are litigated in a car accident case, the injured party must show the jury the connection between the injury suffered and the accident. The injured person must also demonstrate the types of care needed to treat the long-lasting effects of the injury, along with the associated costs. This is often accomplished through the testimony of expert witnesses.Spinal column The Fifth District recently assessed the testimony of experts in a Florida uninsured/underinsured motorist accident case to determine whether or not the trial court should have awarded a directed verdict.

In this case, the plaintiff suffered injuries to her neck and spine after a car accident. The injured person and her husband sought UM coverage from their auto policy, which was denied. The case proceeded to trial, at which the injured woman and her neurosurgeon testified to the cause of the injury and its permanency. At the end of the insurance company’s case, the plaintiffs moved for a directed verdict, which was eventually granted after the jury verdict. The jury found the plaintiff suffered injuries, damages, and losses, granting $7,000 in lost wages. It did not find the woman suffered permanent injuries. The trial court granted the injured person’s motions for a directed verdict and a new trial.

Florida case law previously established a motion for directed verdict should only be granted when there is no reasonable evidence on which a jury can rely for its verdict in favor of the non-moving party. If there is any conflicting evidence, a directed verdict is not appropriate because factual determinations are to be made by the jury. This includes determinations of the permanency of an injury. A directed verdict for permanency based on expert testimony is disallowed when it is rebutted by another expert, the testimony is impeached, or other conflicting evidence is provided.

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Florida car accidents are often caused by poor choices made by other drivers or bad weather conditions. Occasionally, they are caused by hazards created by construction zones or the design of a roadway. The Third District Court of Appeal recently issued an opinion in a negligence action filed against a gas station. The plaintiff alleged a cut across a median requested and promoted by the gas station caused the errant car to strike the plaintiff’s car, causing her bodily injuries.  gas pumpThe claims made by the injured woman against the gas station were dismissed by the trial court, which was affirmed in part and reversed in part by the Court of Appeal.

The car accident happened on a four-lane road with two lanes of traffic on each side of a concrete median. The plaintiff stated another car pulled out of the gas station, went across the cut in the median, and joined the lane of traffic she was occupying. The injured woman claimed the car from the gas station caused her to lose control of her car and hit a palm tree. She did not allege any obstruction in her view.

The gas station purchased the property near the accident after making a deal with the city several decades ago. The gas station petitioned for a cut in the median so that traffic could enter and exit from both eastbound and westbound lanes. During the application process, the gas station submitted a traffic study. The plaintiff alleged that this was done improperly and that the gas station did not make necessary adjustments to their signage to deal with the foreseeable dangers to the public.

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