Articles Posted in Car Accident

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.

In a Florida car accident case, an injured person can be owed damages from multiple parties for a variety of reasons. One example is a chain reaction car accident, in which all of the acts of negligence happen almost simultaneously. A passenger could file suit for the negligent acts of the driver of her car and the drivers of other vehicles involved. Another example may be a construction accident in which an injured party is injured in one accident, but the cause of the accident stems from the negligent acts of other subcontractors preceding the accident. The injured person may seek recovery from his own employer under workers’ compensation and file personal injury lawsuits against the contracting companies.

A recently issued decision (Case No. 2D16-4642) looks at the due process surrounding an underinsured (UM) automobile accident with three separate claims of relief. Precise cuttingThe injured plaintiff suffered serious injuries after an intoxicated driver hit the car in which she was a passenger. The injured person filed suit, asking for 1) damages for the impaired driver’s negligence, 2) UM coverage from her own auto insurer, and 3) punitive damages from the impaired driver for his wanton conduct. The insurer moved to remove itself from the claims against the intoxicated driver, citing section 627.4136(1), Florida Statutes (2014). This statute dictates the non-joinder of insurers. The specific subsection states that a cause of action against a liability insurer by a person not insured under the policy must first obtain a settlement against the person insured under the policy before pursuing any cause of action against the insurer.

The insurer also claimed it was entitled to a separate trial from the driver under the rule of civil procedure FRCP 1.270(b) to avoid prejudice. The insurer claimed it was worried the jury would unfairly increase the verdict amount after hearing of the intoxicated driver’s behavior and the fact that the injured person was insured. The trial court agreed with all of the insurer’s arguments for severance and granted its motion.

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In a personal injury lawsuit, the injured person must do more than show the defendant caused an injury. The injured person must also provide details of the damages incurred as a result of the injury. Some may be straightforward, like the bill for services from the Emergency Room visited after the accident. Others require more analysis and calculation. A recent Fifth District Court of Appeal decision (5D15-4423) discusses such damages, and the appellate Foggy tropicscourt reviewed whether or not the court erred by not allowing a new trial after a Florida car accident.

At trial, the injured party was awarded $2.13 million in damages for the permanent injuries he sustained from the auto collision. The defendant driver appealed, arguing the trial court should have granted a new trial based on the improper closing arguments. The driver also sought to limit the jury award for pain and suffering and future medical expenses. All of these motions were denied by the lower court and affirmed on appeal. The appellate court did grant a new trial for the defendant’s motion for remittitur related to the lost earning capacity and collateral source payments.

On this subject, the injured person provided testimony at trial that he worked as a plumber with an hourly wage between $18 and $19.50. He stated his job had evolved into a less physically demanding role in which he only performed minor plumbing duties, but his pay remained the same. The injured person testified that his goal was to continue working as a plumber until age 65 unless he was laid off or moved to another job. On cross examination, the injured man acknowledged he went back to full-time work performing all plumbing duties, even though he was still receiving chiropractic care.

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In the early phases of litigation, parties may move for summary judgment, arguing that the case should not move forward due to some legal preclusion specific to the type of injury. A common argument made by defendants in South Florida car accident cases is that there is no genuine issue of material fact for the jury to consider, so dismissal is the only route acceptable under the law. A trial court has substantial discretion to dismiss an action, but it is not allowed to dismiss based on the weight of the evidence for either party. If there is any factual question of whether or not a defendant or defendants could be found liable, that question must be answered by a jury.

A recent case addresses a summary judgment entered in favor of a defendant golf club that served drinks to a drunk driver who crashed into the decedent, causing her death. The decedent’s representative filed suit against the driver and the golf course that sold alcohol to the driver prior to the accident under Florida’s reverse dram shop liability statute, section 768.125, Florida Statutes (2014).Sand Trap At the time of the accident, the driver had a blood alcohol content of .302.

In its defense, the club asserted it was not liable under the dram shop statute since they did not know the club member was habitually addicted to alcohol. The club stated there was no competent evidence on record that the driver was habitually addicted, nor was there evidence the club had knowledge of her alleged addiction. In response, the representative filed depositions of the driver, a friend of the driver, and relevant employees of the club. The depositions revealed the driver played 70-80 times over a three-year period prior to the crash. The friend testified that she was intoxicated nearly every time they played together at this club. The driver often started with two strong whiskey cocktails, poured by staff of the club. The driver would then return to the clubhouse at the midpoint turn of the course for a third whiskey cocktail, all while purchasing and drinking additional alcoholic beverages from the “cart girl” employee of the club. The friend testified that on the day of the accident, the “cart girl” poured and served eight ounces of pure alcohol to the driver. The estate also submitted an affidavit from a laboratory director at the County’s medical examiner’s department. The affidavit estimated the driver’s blood alcohol content when she left the club to be .27. Despite this proof, summary judgment was granted to the club. The estate appealed.

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If an accident occurs in Florida, an injured party can pursue legal recourse in this state. In a recent case, the appellate court looked at a prior judgment that attempted to address whether a party injured in a Florida car accident could access Personal Injury Protection benefits under her policy obtained in Michigan after she reached a settlement agreement under a Michigan rule of civil procedure. Beach RoadIn this original agreement, the parties stipulated to an entry of a judgment for the injured party for $30,000. Later, the injured party brought a second action in Florida against the insurer for additional PIP benefits from the same policy, based on the medical expenses incurred prior to the filing of the lawsuit.

The insurer moved for a summary judgment, arguing this claim for PIP should not proceed under res judicata, which bars matters that have already been adjudicated by a competent court. The injured woman countered that res judicata did not apply to the PIP benefits, since the entered judgment was for the expenses incurred after the complaint was filed three years before. The trial court determined that the parties had not reached a “meeting of the minds” when the first claim was resolved and vacated the stipulated judgment. The court cited Fla. R. Civ. P. 1.540(b)(1), (2), (4), which allows a trial court to relieve a party from a judgment when the order or judgment is void; when a mistake, inadvertence, or excusable neglect requires relief; or when there’s been the discovery of important evidence. The trial court did not specify which part of the rule it was applying to the situation at hand. The insurer appealed.

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The Second District Court of Appeal recently issued a decision (2D16-353) regarding a highway accident on I-75, when the driver of a large service truck collided with a non-commercial truck. A mattress had fallen onto the highway, but the accounts of what happened afterward differed greatly between those involved. The driver of the truck testified that he saw the driver of the commercial truck behind him and that he was driving too fast. He said he swerved left onto a narrow shoulder when it looked like the driver was going to rear-end him. HighwaySince the left shoulder could not accommodate all of his car, he remained partially in the left lane of the interstate. The driver said the commercial driver forcefully struck him, causing him to roll over. The driver alleged in his negligence action that he and his passenger suffered significant injuries.

In contrast, the commercial truck driver testified that the accident was caused by the other driver when he suddenly swerved into the right lane and then the left lane and shoulder – directly across his path of travel. The commercial driver claimed the mattress was 100 yards away when the traffic in front of him was slowing and stopping. He stated he also slowed down quickly and attempted to avoid hitting the truck in front of him, but he was unable to avoid it because the car was not completely in the shoulder.

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In personal injury actions, an injured party or estate can sometimes seek punitive damages in addition to compensatory damages for medical care and lost wages. Punitive damages are intended to penalize a negligent actor for intentional misconduct and gross negligence. An injured party must show with clear and convincing evidence that the negligent person or entity knew that her or his behavior was wrong and had a high probability of resulting in an injury, or the party’s behavior was so reckless or wanton that it equaled a conscious disregard or indifference to life. The state of Florida limits the amount of punitive damages that may be awarded to an injured party. Typically, the damages awarded cannot exceed either the greater of three times the amount of compensatory damages or $500,000. books If the behavior is considered egregious or unreasonably dangerous, the cap may be increased to either four times the amount of compensatory damages or $2 million.

A recent Court of Appeal lawsuit (Case No. 5D16-863) analyzes a punitive damages award in a rear-end car accident case that resulted in serious injuries and death to the driver and passenger of the front car. The defendant was convicted of two charges of DUI manslaughter and sentenced to two life sentences. The injured driver and administrator of the deceased passenger’s estate filed suit against the drunk driver, originally alleging wrongful death and negligence. Eventually, the complaint was amended to include a claim for punitive damages, based on the drunk driver’s .302 percent blood alcohol level.

The trial was separated into two parts – one to determine the negligence and the compensatory damages and another for the punitive damages. The deceased victim’s estate was awarded $244,419 in damages, and the seriously injured driver received $75,144.35. At the beginning of the punitive damages portion of the trial, both parties submitted proposed jury instructions that differed significantly on the inclusion or exclusion of the defendant’s financial assets. The injured parties objected to the defendant’s desire to tell the jury of his limited resources. The plaintiffs believed that he would benefit by arguing he was in jail and unable to pay. The judge allowed jury instructions that advised they may consider the defendant’s financial resources but omitted the defendant’s proposed phrase admonishing that the jury “may not award an amount that would financially destroy the defendant.”

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Personal Injury Protection (PIP) is a benefit offered to motorists in their mandated auto insurance coverage. In recent years, the types of benefits paid were narrowed by statute, and those injured in a car accident have experienced greater challenges to getting providers paid. If the PIP benefits fail to cover the cost of treatment, the medical provider can seek the difference from the insured. This scenario is found in a recent Fourth District case (No. 4d16-1013). The plaintiff’s auto insurer paid some of the medical bills, but not as much as the the injured person expected. The injured person was billed the remainder. Dark Hospital The injured person asked the court for a declaratory judgment from the civil court system to show the auto insurer did not use the proper method when determining the reasonable amount to reimburse. The injured person alleged this calculation was not in her policy and asked the court to order the insurer to reimburse her and others like her.

Section 627.736 of the Florida Statutes allows insurers to choose between two methods to assess PIP medical reimbursements. The insurer can pay a reasonable amount, following the guidelines in subsection (5)(a)(1), or it can choose to apply the Medicare fee schedule, following the guidelines in (5)(a)(2) of the statute. If an insurance company chooses the latter method, it must provide notice to the insured that it is using this schedule. If this method is chosen, the statute prohibits providers from billing or collecting payments from the insured. In this lawsuit, the insurance company readily acknowledged that it did not choose the method relying on the Medicare fee schedule. The injured woman argued that they followed the fee schedule anyway and that she was inappropriately billed by the medical centers that provided her care. The lower court granted the insurer’s motion to dismiss.

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Florida applies the dangerous instrumentality doctrine in personal injury lawsuits, which holds the owner of a vehicle generally liable for injuries that are caused by the negligent operation of the vehicle, no matter who is driving. Not all states use this doctrine. In a recent decision (Case No. 5D16-1641), the Fifth Florida District Court of Appeal looked at whether or not the plaintiff and the defendant were subject to this doctrine when the accident occurred in South Carolina, and they were both Florida residents.Beach Road South Carolina does not have a dangerous instrumentality law. In South Carolina, they apply the Family Purpose Doctrine, which makes it harder to hold an owner liable for the negligent driving of another person using her or his vehicle.

The injured driver was rear-ended by the defendant-owner’s brother-in-law. The owner moved for a final summary judgment, arguing that South Carolina law prevailed, and he was not vicariously liable. The owner argued the case should be dismissed because there was no evidence that the owner negligently entrusted the vehicle to his brother-in-law. The trial court agreed, and the injured driver appealed. The appellate court of Florida agreed to review the lawsuit to determine which state’s law applied to the accident at hand.

To resolve conflicts of law, Florida uses the “significant relationships test” from the Restatement (2nd) of Conflict Laws, which looks at the connection the parties have to the state to determine which law to apply. The location of the injury is still taken into consideration, but the residence of the parties and the place where the relationship is centered are also assessed. With personal injuries, the default is to look at the location of the accident, but if another state has a more significant relationship under the test, that state’s law will be applied.

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Due process is an important element in both the civil and criminal branches of the judicial system. No court can hear from one side alone without providing the other side notice and an opportunity to also be heard. The Second District Court of Appeal issued an opinion on this issue in a recent case (Case No. 2D15-1952). In this lawsuit, the plaintiff was seriously injured after an inebriated truck driver slammed into his car at 60 miles per hour. The other passengers were also seriously injured but had settled their individual claims prior to the appeal of this action. The truck driver was driving a company truck at the time of the accident. Liability was not contested, but the cause and extent of the damages for the injured man were hotly debated.

The injured man claimed a variety of damages that included pain and suffering, past, present, and future loss of earnings, and medical expenses. The injuries were mainly for his back and arm. Highway SpeedingTo further complicate matters, the man was in another car wreck four years after the accident. The defendants accused the injured man of not completely answering the discovery responses with the candor required in court proceedings. The company defendant asked for the names of the medical providers who treated him. The man first answered in April 2012, a month after the second accident, and identified eight providers between January 2008 and April 2012. In 2013, he amended his answers to include several other providers, including a radiology center and a chiropractic center, between March and June 2012. The driver-defendant asked a similar set of questions in the later part of 2013, and the injured person again identified most of the providers but left out the radiology center and chiropractic center. He also answered the question of whether or not there were other accidents after the first one with “Not that I remember.”

During his deposition, he did mention being rear-ended but did not consider it an accident. He said that he was stopped at a stop sign, and a pick-up “touched us and took off quickly.” The injured man said that the car suffered minimal damage, but his back hurt much more following this event. Soon afterward, the company moved for the trial court to dismiss the injured man’s lawsuit, alleging the injured man testified falsely about the severity of the accident and failed to disclose his visits to the radiology and chiropractic centers. The motion included the written interrogatory answers and the deposition transcripts for this lawsuit. It also included a deposition for the second accident that included the injured man’s descriptions of the second event as an accident with a very fast impact. The court did not have a formal hearing on the matter and ruled solely on the documents submitted by the company. While the man briefly defended himself, he was not given an opportunity to be fully heard and present documents. The injured man appealed the dismissal.

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