Articles Posted in Personal Injury

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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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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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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Anyone who suffers a severe accident in Florida needs a tremendous amount of funds to cover the cost of living with expensive and on-going medical care. The circumstances around an accident dictate the number of avenues of relief available to the plaintiff. If there is more than one party responsible for the injuries, liability and damages can be divided among the parties – including the injured party. Determining who pays which amount can extend beyond assigning percentages. Sometimes injuries are compounded by another party in a separate, subsequent incident.

Old scooterThis is seen in a recent Florida Supreme Court case, which asks whether the defendants could seek the difference in damages from another allegedly responsible party after they were held liable at trial. The injured party suffered serious head trauma after an automobile collided with his scooter. His guardian alleged that in addition to the injury caused by the negligent driver, he suffered medical negligence by the care providers he saw immediately after the accident. The guardian first tried the allegations against the driver and her father and successfully blocked the jury from considering whether the medical negligence was a contributing cause to the injuries. The father and daughter were found liable for the injuries, and a judgment was entered for a little over $11 million.

The defendant driver was using an insured vehicle owned by her father. After the judgment was entered, the policy limit of $1.1 million was paid by the insurer, but the remaining $10 million was left unpaid by the father and daughter. The guardian then filed a separate medical malpractice action against the medical provider defendants for the same injuries. The father and daughter were allowed to intervene, and both the injured person and the family defendants sought equitable subrogation, or payment and liability in the place of the other defendants, from the medical providers. The medical providers sought dismissal of the lawsuits, arguing neither the insurer nor the father and daughter were entitled to subrogation, since they did not pay the damages in full.

If you’ve been injured while physically in the state of Florida, you generally have a right to seek damages from the negligent tortfeasor under Florida’s civil court system. You do not have to be a resident of Florida to file suit against another Florida resident or business entity with relevant connections to Florida. As with all things, there are exceptions. Even when an accident has ties to Florida through location or through business contacts, the legal avenue of relief through Florida’s court system may be unavailable to the injured person.

A Third District Court of Appeal case (No. 3D16-556) addresses the legal issues in an example of this scenario. A cabin steward on a cruise ship alleged severe injuries due to the constant heavy lifting, twisting, turning, and bending he had to perform as a cabin steward. docked shipThe steward claimed the ship owners were negligent, provided an unseaworthy ship on which to work, failed to provide living subsidies and medical expenses (also known as maintenance and cure in maritime matters), and failed to provide treatment for his injuries.

The company running the cruise line is based in Spain and required all employees to sign an employment agreement with the ship management company, which was based in the Bahamas. The agreement in this lawsuit covered the term of employment, the salary, and jurisdiction over disputes. The section of an employment agreement that covers jurisdiction is known as the forum selection clause. By signing the employment contract, the employee agrees to resolve disputes with the employer in the jurisdiction chosen by the employer. The ship in this case was owned by a Maltese company, and the forum selection clause specified that all disputes must be settled in Malta. The defendant company moved to dismiss the steward’s complaint in Florida, arguing the forum selection clause precluded personal injury actions outside Malta. The steward countered that the clause was unreasonable because the location was inconvenient and expensive for him to litigate. The trial court granted the company’s motion to dismiss, finding the forum selection clause was reasonable under the circumstances because the ship was based in Malta, the owner was incorporated in Malta, and the country of Malta has an interest in regulating its ships and shipowners as well as enforcing seamen’s rights.

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Personal injury lawsuits are all uniquely complex. Medical malpractice actions in particular have additional statutory requirements that add to the general challenges of a civil suit. The Florida legislature enacted Chapter 766 to create a pre-suit procedure for all medical malpractice actions. This process requires a claimant to conduct an investigation to see if there are reasonable grounds for a medical negligence lawsuit. The injured party must provide this corroboration of reasonable grounds with a verified medical expert opinion from a person who regularly practices medicine and meets the requirements set forth in subsection (5).Hand and wrist If the defendant in the case is in a specialty, the expert must also practice in the same specialty.

A recently issued decision from the Second District Court of Appeal (2D16-4052) addresses the qualifications of a pre-suit expert. The plaintiff sought treatment from an orthopedist after breaking her toe. The defendant physician provided different types of care, including surgery. The problems with her toe remained, and the woman sought a second opinion. The second physician advised that the surgery performed was unnecessary for injuries like hers, and the injured woman filed suit against the institute where the first physician practiced. As part of her claim, the woman offered the required “corroboration of reasonable grounds to initiate medical negligence litigation,” accompanied by an affidavit of a board-certified podiatrist. The institute objected to the affidavit, claiming he was not qualified to testify as an expert because he was a podiatrist rather than an orthopedic surgeon. The injured woman did not respond to this objection.

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