Articles Posted in Personal Injury

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.

Continue reading

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.

Continue reading

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.

Continue reading

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.

Continue reading

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.”

Continue reading

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.

Continue reading

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.

Continue reading

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.

Continue reading

Eyewitness testimony in a car accident case can determine whether a defendant is held liable for negligence and the extent of the damages related to the injury. Courts can summon, or require, a person to appear in court or at a deposition to provide a statement and answer questions. However, sometimes a witness becomes unavailable or is incapable of providing testimony. Busted tail lightCourts have long recognized that small children may not be able to provide any sort of meaningful testimony and have measures in place to help determine whether a child is mature enough to participate in the litigation process.

The role of a child eyewitness became a central concern in a recent decision (Case No. 2d16-4018). The plaintiff-mother was rear-ended at a gas station by another vehicle while waiting to turn onto a road. The injured person’s son was the only other passenger in her car and was not a party in the case. At the time of the accident, he was eight years old. After the mother filed suit, the defendant driver raised two affirmative defenses, alleging that the injured mother was negligent and that she failed to use a fully operational seatbelt. As part of the proceedings, the defendant driver sought to depose the injured mother’s son but was rebuffed by the mother. The mother claimed that the son could not provide any meaningful testimony relevant to the proceedings, and submitting him to deposition would cause unnecessary embarrassment, burden, annoyance, and expense.

The mother testified at her deposition that her son remembered the details of the accident at the time, but they had not spoken about it recently. She asserted she was at a complete stop when the accident occurred and using a seatbelt. The injured mother described the pain she continued to suffer in her neck and shoulder as a result of the accident. The mother also revealed that since the accident, she and her son had gone to Busch Gardens and ridden adult rollercoasters.

Continue reading