Test tubesA woman was working at a hospital when she fell and hurt her shoulder. When she tested positive for marijuana, the law presumed that the accident was due to her drug use. The court held that she did not successfully rebut the presumption of the drugs being the cause of the accident. Therefore, she was denied workers’ compensation benefits under the law. If you are injured at work, it is important to contact a Florida personal injury attorney as soon as possible. With the assistance of a skilled attorney, the woman in this case may have been able to successfully rebut the presumption and thus be eligible for benefits.

Facts of the Case

 Here, the plaintiff was working at her job cleaning hospital rooms when she slipped and fell as she was running to alert nurses on duty about a patient who was in distress. After she fell, her employer took her to the hospital to get treatment, and then took her immediately to a clinic, which gave her a drug test. She tested positive for marijuana during this test.

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If you get into a car accident due to a visual obstruction, you may wonder who is responsible for the injuries or damage caused by the accident. The Florida Third District Court of Appeals addressed this topic in a recent decision. It held that in this case, the people responsible for the foliage that the plaintiff alleged caused the obstruction could not be held responsible for damages from the accident. If you are injured in an accident, it may be difficult to know who can be held responsible for the conditions that caused the accident. That’s why it’s important to hire a skilled Florida car accident attorney to help you hold the appropriate parties responsible after an accident.

The Facts of the Case

A man riding a motorcycle was killed when he was hit by a car. The driver of the car blamed the fact that there were shrubs planted near the intersection and they obstructed her view. Thus, she sued the city of Hialeah, R.J. Behar & Company, Williams Paving Co., Inc., and Melrose Nursery. R.J. Behar & Company was the designer of the project that planned the layout of the intersection, including the shrubs. Williams Paving Company was the general contractor who was responsible for building the road and the swales, and Melrose Nursery actually planted the shrubs. The paving company, planner, and nursery moved for summary judgment. Summary judgment is granted when there are no genuine issues of material facts and one of the parties is entitled to judgment as a matter of law. That means that if the court grants the motion for summary judgment, the claims against the planner, paver, and nursery will be dismissed.

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In a recent case before the Florida Supreme Court, the court decided what kinds of funds Medicaid was able to put a lien against. It held that only an award of past medical expenses could be used to satisfy the lien, and that Medicaid could not touch the award for future medical expenses. If you are injured in an accident, you should contact a Florida personal injury attorney as soon as possible! They can help you to make sure you receive – and keep – the recovery that you deserve.

Facts of the Case

The facts of this case are relatively straightforward. A man was injured in an all-terrain vehicle accident. He had extensive injuries. He did not have private insurance so Florida’s Medicaid program paid $322,222.27 for medical care to treat his injuries from the accident. Later, he settled with one of the alleged tortfeasors for one million dollars. Medicaid then said he owed them over $320,000 for his medical bills. However, of the million dollar settlement, only $13,881.79 was compensation for past medical expenses. Though the case never explicitly states what the other amounts are for, presumably it is future medical expenses, lost wages, pain and suffering, and other compensable damages under tort law. Thus, the victim’s representative argued that the Medicaid lien should only be for the $13,881.79 allocated to past medical expenses.

Stores are required to use reasonable care in maintaining their premises in a reasonably safe condition.  If a customer is injured while shopping in a store, the store is not instantaneously liable for the injuries suffered.  An injured customer must show the store either created the dangerous condition, or had actual or constructive knowledge of a dangerous condition.  Florida premises liability can be a complicated area of law where it may be a boon to retain an attorney to guide you through the process of filing suit. The Third District Court of Appeal recently weighed in on whether this question should be considered by a jury.  The customer was shopping at a chain hardware store when a large metal object fell off an Store shelvesupper aisle shelf and struck him.  The customer was speaking to a store employee when the incident occurred.  He relayed that he did not see the object before it fell or after it fell, but noticed it falling from his peripheral vision.  The employee he was speaking to showed him a trailer hitch, explaining that that was what hit his knee. 

The store later asserted that heavy objects like hitches were only stored on lower shelves.  The injured testified he witnessed hitches that were stored on the top shelf eight or nine feet above the ground.  The injured customer eventually filed suit against the store for negligence and negligent mode of operation.  The store chain moved for summary judgment, arguing there was no evidence the store had any knowledge of the alleged dangerous condition.  The store stated nothing was offered by the injured to show where the hitch was located at the time of the accident, that it was the store that created this condition, and that it was physically impossible for the accident to have occurred as described by the injured.  While the court disagreed with the characterization that the incident was “impossible”, it found there was no genuine issue of material fact.  The injured customer appealed.

The court noted that the evidence is to be viewed in a light most favorable to the appellant, and the appellant had previously offered that he saw the object fall from above, there were other employees stocking shelves at the time he was in the aisle, that a store employee identified the object from the hitch, and that he saw the hitch located on an upper shelf several feet above the ground.  The appellate court found there was a genuine question for a jury to decide as to whether the store had actual or constructive knowledge of the condition.

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If a person is injured while working, her or his injury and expenses are likely covered through the benefits outlined in Florida’s Workers’ Compensation statutes.  In exchange for providing a path to medical care and financial relief quickly, an employer is rewarded with immunity from civil action.  This helps the employee to feel assured the accident is covered and ensure the employer is confident business can move on without extensive litigation.  Florida’s statutes provide an exception to this immunity.  The immunity fails when an employer commits an intentional tort that causes the injury or death; or the employer engages in conduct knowing based on certain events in the past, death or injury was almost certain to occur.  The immunity does not extend to fellow employees when they act with such Buildingswillful and wanton disregard or gross negligence to have caused the accident. 

The Florida Fifth District Court of appeal recently tackled the question of whether one of the exceptions to the immunity applied in an industrial accident.  The parents of a mill-worker filed suit against his employer and fellow worker after he died while inside the mixing box of a cement-mixing pug mill.  The parents alleged the other employee began operating the mill without checking to see if he was still inside first.  The defendants sought summary judgment in its favor, arguing the claims were barred by workers’ compensation immunity.

The trial court granted the motion, finding there was no genuine issue of material fact and the defendants were entitled to a judgment as a matter of law.  The trial court looked at whether the exceptions applied, and determined they did not.  The parents appealed, arguing this was in error.  The court analyzed the three elements needed to reach one of the exceptions to the immunity against the facts found in Gorham v. Zachry Indus., 105 So. 3d 629, 633 (Fla. 4th DCA 2013).

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If a crew member suffers an accident or death while working on board or nearby for a ship, she or he has access to legal relief under federal statutes.  Federal maritime law covers a variety of vessel and dock issues, but is not the only avenue toward obtaining damages.  A recent state appellate case reveals how an injured party or an estate can pursue action in the state’s civil court system for a death that occurred more than three miles off of Florida’s coast. Florida wrongful death and maritime law can be a complex area where it is beneficial to have an attorney guide you through the process of filing suit.    

The decedent was a crew member for a scuba dive charter boat.  On the night he died, he was helping assist customers taking a night dive.  Adverse currents swept some of the divers up to a half mile away, so he snorkeled to Ocean snorkelingguide them back to the boat.  The crew member suffered a heart attack while doing so.  The crew member’s wife filed suit against the dive center and the captain of ship, alleging negligence, unseaworthiness, state tort negligence against the dive center, Death on the High Seas Act (DOHSA) against the dive center, state tort negligence against the captain, and DOHSA against the captain.

The defendants filed motions to dismiss, arguing the cause of action was controlled by DOHSA as the death occurred more than three nautical miles away from shore.  The deceased’s wife countered the death took place within Florida’s territorial waters, which extend past the three nautical miles to the edge of the Gulf Stream.  The trial court took judicial notice the wreck was 6.5 nautical miles from the shore and granted the defendants’ motions to dismiss, agreeing with the defendants’ assertion that remedies under DOHSA were only available in federal court. 

Florida car accidents not only cause new injuries for those involved in the accident, but aggravate pre-existing medical conditions as well.  Regardless of whether the injuries were old or new, all must be tied to the accident in order to recover damages.  A recent appeal examines the presence of pre-existing conditions in a rear-end collision between a bus and another vehicle that pulled out in front of it.  The case went to trial with a $1.5 million verdict in favor of the injured passenger.  The defendant appealed, arguing the instructions referring to pre-existing conditions were faulty.matthew-henry-14221-unsplash-300x200 

The plaintiff in the suit fell from his seat as a result of the impact and was taken to the hospital immediately after the accident for treatment.  The injured was treated and released the same day, but continued to seek treatment for lower back pain and stiffness.  X-rays revealed arthritis and a degenerative disc condition in his back.  A later MRI showed he had a three-level disc herniation in his lower back and that he suffered from diffuse idiopathic skeletal hyperostosis (DISH).  He filed suit against the defendant driver, alleging she caused the disc herniation in his lower back. 

The defendant admitted she was negligent, but denied she caused the disc-herniation and requested amount of damages.  The defendant asserted the bus passenger’s complaints of pain stemmed from his preexisting conditions.  To counter, the injured offered the testimony of a medical doctor who stated there was a reasonable degree of medical certainty the herniation was caused by the accident.  The doctor came to this conclusion after a review of his own records of examination, the MRI, and his patient’s own statements that he did not have any back problems before the collision.  The physician testified there was no way to tell from an MRI if the herniation occurred  before, during, or after the accident.  The doctor did note the injured suffered from DISH and that the injured had been dealing with DISH for a long time, which causes pain, spasms, stiffness, and other complications.  The plaintiff’s expert testified the DISH was located above the herniated discs and were unrelated to one another.

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In any personal injury case, the injured person must connect the accident to the alleged injury in order to receive damages.  The Florida Fourth District Court of Appeal recently assessed in a Florida car accident case, No. 4D17-1900, whether it was an error for the trial court to allow an expert witness for the injured person to testify about causation and permanency in violation of a trial preparation order.  The plaintiff driver's wheelsought damages for the bodily injuries she sustained due to an accident.  The driver of the other vehicle admitted fault but denied the accident caused the victim’s alleged injuries.  The case moved forward to trial to determine whether the accident did cause her injuries, whether those injuries are permanent, the reasonableness and necessity of medical bills, and damages.

The defendant objected to one of the injured person’s expert witnesses, an orthopedic surgeon, but the court allowed the expert to opine on the causation and permanency of the plaintiff’s injuries.  The surgeon testified the injured person’s shoulder was damaged as a result of the car accident and required surgery.  The physician described his course of treatment and provided copies of the total bill of $58,000 from his practice group.  The injured person also testified, discussing the multiple treatments she received to remedy the injuries from the accident.  The injured person went to an urgent care facility on the day of the accident to address pain and stiffness in the back of her neck and a numbing sensation starting at her shoulders and reaching through her arm to the fingertips.  The injured person additionally described seeking help for several months when she went to physical therapy and underwent an MRI.  Eventually, surgery was recommended by two separate physicians.  The injured person testified she underwent the procedure and had to follow up with additional post-surgical care to improve her strength and ability. 

On appeal, the defendant asserted the trial judge erred in the dismissal of his motions because there was insufficient evidence about the reasonableness and necessity of past services provided for the injured person’s medical care.  Florida requires an injured party to produce more than the mere bill for expenses to prove whether the amount was reasonable.  The defendant argued the physician’s testimony was unnecessary to show the necessity and reasonableness of the bill, but the injured person’s lay testimony was acceptable.  The defendant claimed that since there was no testimony from the injured person connecting each bill to the accident, there was no testimony meeting the burden set by Florida statutes and case law. The appellate court was unpersuaded by this argument and concluded the plaintiff sufficiently proved the reasonableness through her testimony and her expert’s testimony. 

The Florida Motor Vehicle No-Fault Law is designed to help all of the parties involved in a Florida car accident.  The statute attempts to provide available funds through the purchase of mandated auto insurance to an injured driver or passenger under a policy while minimizing costs to the auto insurer and the insured public at large and adequately paying medical treatment providers.  The statute requires an insurer to reimburse a percentage of reasonable expenses for medically necessary services.  An insurer may choose to limit its payment by utilizing a schedule of maximum charges delineated in section 627.736(5)(a)(1).  If an insurer uses this limitation, it must provide notice to the insured of the policy.

The Second District Court of Appeal reversed a summary judgment for a medical center fighting to receive larger Personal Injury Protection (PIP) payments than the schedule of maximum charges in section 627.736(5)(a)(1)–(5), Florida Statutes (2013).  The appellate court Taking Moneyfound the language in the auto insurer’s policy clearly and unambiguously elected to limit reimbursement payments and should have been upheld.  The appellate action stems from 19 PIP claims made by parties injured in car accidents in 2013 who were using the same auto insurer.  The insureds all assigned their auto insurance benefits to the medical facility, which then submitted bills to the auto insurer.  The insurer paid a portion of the 19 submitted bills, following their schedule of payment in the policy.  The medical facility disputed these amounts. 

The auto insurer chose to file an action seeking a declaration of rights under the policy and the PIP statute, section 627.736 of the Florida Statutes.  The medical facility countersued, also seeking a declaration of rights and obligations under the auto insurance policy and an injunction to prevent the auto insurer from continuing to limit its payments for charges.  The policy stated they would pay reasonable charges for bodily injuries, in accordance with the PIP statute.  The insurer advised in this policy it would limit the payment of medical expenses described in the insuring agreement to 80% of a properly billed and documented reasonable charge.  The ceiling on the payment was 80% of the schedule of maximum charges, including the use of Medicare coding policies and payment methodologies.

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When an injury occurs on the premises of a business, it can be difficult to determine who is liable for the accident. When there are multiple entities involved, including insurers, indemnity often comes up between the parties.  Insurance companies often indemnify their insureds, meaning that they handle the suit on behalf of the insured.  Sometimes two companies can agree between themselves that one will indemnify the other in certain situations.  The First District Court of Appeal addressed a question of indemnity in a Florida premises liability case, No. 1D16-5675.

A woman was trapped and injured in an office building elevator.  The property owner had previously entered into an elevator service contract, hiring a company to be responsible for the maintenance and repair of the elevators in the office building.  This included responding to calls Elevator waitfrom people trapped in an elevator.    After the injured person filed suit against the owners of the office building for negligence, the property owner sought indemnification from the elevator maintenance company, per the agreement.  After the contractor refused to indemnify, the property owner filed a cross complaint against the contractor for not honoring the contract, asserting the property owners were not at fault. 

At trial, the jury found the property owners and the maintenance contractors to be 50 percent at fault in their response to the elevator malfunction.  The office building owners moved for a directed verdict, which was granted, absolving them of liability as the legal cause of the plaintiff’s injuries, but still holding them liable for providing safe operation and proper maintenance.  The property owner and the elevator company each reached their own settlement agreement with the plaintiffs during the second phase of the bifurcated trial.  The agreement between the property owner and the injured person was disclosed to the jury, but the agreement between the elevator maintenance company and the injured person was not.  The jury returned a verdict of $13 million, which was in excess of the settlement amount.

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