Articles Posted in Car Accident

motorcycleIn the U.S., we have both federal and state courts. If you are involved in a car or motorcycle accident, a knowledgeable South Florida personal injury attorney can help you to determine which court would be proper to file your suit in. Sometimes the suit may start in one court and then be moved – referred to as “removed”- to the other.

Motorcycle Accident

The underlying facts of this case involve a motorcycle accident. The plaintiff was riding his motorcycle when it shut off suddenly. This caused him to lose control of the motorcycle and he was injured. In the original demand letter, plaintiff asked for $275,000 plus “med pay benefits.” At the time the letter was sent, plaintiff’s medical bills had so far totaled $68,218.87. The plaintiff filed his suit in state court and the defendant removed the case to federal court. Now, the defendant is asking for the case to be moved back to state court. The case was decided by the Middle District of Florida, which is a federal court.

car accidentIf you are injured in a car accident, you may envision that the only person that you need to take legal action against is the driver who caused the accident. However, oftentimes insurance companies will also need to be brought into court in order for them to pay the damages that they owe. Even if your insurance company seems cooperative, they may just be trying to get you to settle for less than you deserve. If you are injured in a car accident, you should contact a knowledgeable South Florida personal injury attorney as soon as possible. They can help you to decide whether you should take the settlement offered or if you need to involve the insurance company in legal action.

The Car Accident

A man was driving on a Florida highway with his friend in the passenger seat. The driver fell asleep at the wheel and crashed into a cement barrier. While the driver was not injured, the passenger suffered serious injuries and was paralyzed from the waist down. To complicate matters even more, the car itself was owned by the driver’s father’s business. The insurance policy included a one million dollar garage liability policy and a two million dollar commercial umbrella policy.

Legal News GavelGenerally, when one car rear ends another car, the driver of the car that does the rear-ending is at fault for the accident. However, that is not always the case. In this appeal, the parties disputed whether the rear ending occurred while the injured passenger’s car had been stopped for a time, or whether the injured passenger’s car had just completed an unsafe lane change. If you are in a car accident, you should contact a skilled South Florida car accident attorney as soon as possible. They can help you to gather all available evidence to help you present your case in the most persuasive light.

The Facts of the Car Accident

On a rainy day while stopped at an intersection, one car rear-ended another car. A passenger in the car that was rear-ended claimed that the accident caused her a significant back injury. The injured woman claimed the other driver was negligent, which caused the accident and her injuries. The other driver disputed this account and said that the driver of the injured woman’s car quickly changed lanes right before the accident occurred. They also argued that her back injuries were not caused by this accident, but instead were the result of previous accidents, injuries, and congenital conditions.

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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.

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.legalnews 

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 Legal News Gavelsought 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 Legal News Gavelfound 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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The Fifth District Court of Appeal reached an interesting conclusion in Case No. 5D16-2794 in a Florida wrongful death case involving a corporate pizza chain, its franchisee, and a widow who was not married to the decedent at the time of the accident.  The decedent was first injured in a serious car accident after he swerved into the median to avoid another car that pulled in front of him.  This move caused his car to drift back over into his lane and flip a couple of times.  The driver became a quadriplegic as a result.  The other car was driven by a pizza deliveryman.  A month after the accident, the injured person filed suit against the driver, the owner of the pizza shop, and the pizza corporation, claiming the driver was negligent and the franchisee and corporation were vicariously liable for the deliveryman’s negligence. 

Within a year of the accident, the injured person married his girlfriend, who was a passenger at the time of the accident.  Soon after that, he died, and his wife became the personal representative of his estate.  She continued with the original action and included a claim for wrongful death damages as the injured person’s surviving spouse.  The franchisee settled its part of the claim with the deceased’s Legal News Gavelspouse for $1 million.  The pizza corporation filed many motions for summary judgment that argued the widow was not a surviving spouse under the Wrongful Death Act because she was not married to the decedent at the time of the injury, that it was not vicariously liable because it did not exercise control over the franchisee’s day-to-day operations, and that all but one claim for medical and hospital expenses were barred because no claims had been filed in the probate proceeding.  All of the motions but the medical expenses were denied, limiting the surviving spouse to only recover $1,165.67 for the expenses claimed.

At trial, the jury found against the pizza company, finding the franchisee was an agent of the corporation, the driver’s negligence was 90% of the cause of the deceased’s injury and eventual death, and the total expenses for the home renovations necessary to accommodate the deceased’s injuries were over $100,000.  The jury also awarded the widow $10 million for loss of companionship and mental pain and suffering as a result of her husband’s death.  The company sought a directed verdict and a new trial, arguing the closing argument was improper. 

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Many Florida car accident cases do not make it to a trial in front of a selected jury. Often, the parties can reach a settlement agreement before a lawsuit is even filed, ideally to the satisfaction of both parties involved. The Fourth District recently reviewed a settlement agreement between an auto insurer and a plaintiff injured in a car accident. The injured person appealed the enforcement of a Legal News Gavelsettlement agreement, arguing they did not have a “meeting of the minds,” or a mutual understanding of what was agreed upon, thus voiding the contract.

The defendant in the lawsuit was insured under a policy with a $25,000 limit for bodily injury per person, a $50,000 limit for bodily injury per accident, and a $10,000 limit for property damage. The injured person’s counsel submitted a demand letter to the insurance company, asking for the policy limits of $50,000 for bodily injury and $10,044 for property loss. The letter also requested an affidavit from the at-fault driver to establish she had no other insurance coverage available, along with a copy of the insurance policy. No release was included with this letter.

The auto insurer accepted the offer and provided the injured person with all of the requested documents. The insurer provided a proposed release and asked that it be signed by the injured person and his mother. The letter specified signing the release was not required for the case to settle and was not a counter offer or new terms. The injured person rejected the proposed release and requested a “standard” release. A second letter was issued by the insurer with two proposed releases. One was an edited version of the first release, and the other was a standard release created by a section of the Florida Bar.

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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 Legal News Gavelhad 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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