Articles Posted in Personal Injury

A Florida personal injury judgment against an aesthetician and a spa was recently upheld by the Fourth District Court of Appeal. In Case No. 4D16-2530, a woman was injured after a facial at a spa went very wrong. The injured customer filled out a form advising she had the skin condition rosacea, which is a chronic inflammation of the face. Prior to the treatment at the spa, the condition was mild with only a rosy flush in Covered faceher cheeks. The aesthetician performing the facial admitted she did not read the form before the procedure, and if she had been aware of the condition, she would have used a different product or performed a test on a part of her face.

The plaintiff stated her face felt like it was burning during the procedure and continued to burn afterward. The injured woman’s face oozed and remained bright red. During the trial, the injured woman’s face was bumpy and easily turned red whenever the temperature increased or she was out in the sun. The pattern of bumps and redness were in the exact shape of the burn to her face. The woman testified at trial that before the injury, she had smooth skin and never wore makeup. After the incident, people would inquire if she was all right any time her face became red, asking what was wrong. The plaintiff stated that she now has to wear makeup to feel comfortable in public, and she has become more shy and awkward as a result of her appearance.

At trial, the injured woman presented several expert witnesses to the jury to help document the history and worsening of her skin condition. Her treating dermatologist related that her condition was mild and had been improving prior to the facial. Following the peel, he diagnosed her with severe irritant contact dermatitis, prescribing an antibiotic cream. The dermatologist tracked the continued inflammation and hyper-pigmentation in the months after the peel. A plastic surgeon also testified, describing his examination of the plaintiff after the chemical peel. He stated that her face had been permanently damaged because the peel removed the skin’s protective barrier. He opined that the disfigurement and scarring were permanent and that she’d need a lifetime of dermatological care to control the outbreaks of her skin. He stated she could never return to her appearance before the peel.

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Florida car accidents are often caused by poor choices made by other drivers or bad weather conditions. Occasionally, they are caused by hazards created by construction zones or the design of a roadway. The Third District Court of Appeal recently issued an opinion in a negligence action filed against a gas station. The plaintiff alleged a cut across a median requested and promoted by the gas station caused the errant car to strike the plaintiff’s car, causing her bodily injuries.  gas pumpThe claims made by the injured woman against the gas station were dismissed by the trial court, which was affirmed in part and reversed in part by the Court of Appeal.

The car accident happened on a four-lane road with two lanes of traffic on each side of a concrete median. The plaintiff stated another car pulled out of the gas station, went across the cut in the median, and joined the lane of traffic she was occupying. The injured woman claimed the car from the gas station caused her to lose control of her car and hit a palm tree. She did not allege any obstruction in her view.

The gas station purchased the property near the accident after making a deal with the city several decades ago. The gas station petitioned for a cut in the median so that traffic could enter and exit from both eastbound and westbound lanes. During the application process, the gas station submitted a traffic study. The plaintiff alleged that this was done improperly and that the gas station did not make necessary adjustments to their signage to deal with the foreseeable dangers to the public.

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In all civil litigation, the right to appeal an order of the trial court is essential to the judicial process. Incorporating tiers of review injects a system of checks and balances. If one suffers an injury in an accident, files suit, is dealt an unfavorable ruling, and feels the court ruled incorrectly, one can appeal the decision by the trial court judge. Since there are statutory timelines for filing suit, there are timelines for an issue or verdict to be appealed. Statutory time limitations help establish finality and closure for litigants or potential parties. Even with these measures in place, it is not always clear when all appellate options are truly exhausted.  time movesThe Third District recently assessed whether an issue involving Personal Injury Protection benefits (PIP) could be re-examined in light of a state Supreme Court decision issued early in 2017.

The underlying legal issue in this Florida car accident case asked whether or not the PIP automobile insurance policy contained the required specific language to limit provider reimbursements. Section 627.736(5)(a)2.f. Florida Statutes (2013) allows a reduction of 80% of the maximum charges, but the insurer must provide notice it is choosing to elect this reduction to the insured. The medical provider, dissatisfied with the PIP payments issued to them by the auto insurer, filed suit in 2013 for what they considered to be the full amount of PIP payments obligated under the law. The trial court issued a directed verdict for the medical provider, based on its conclusion the auto policy language wasn’t specific, as required by the Florida statutes.

The insurer appealed to the appellate division of the circuit court but did not seek a stay pending review. The medical care provider also did not seek execution or other enforcement of the trial court’s judgment. In 2015, the circuit court appellate panel affirmed the final judgment against the insurer, based on the case law at the time of its decision. The circuit court panel noted in its decision that appeals in other district appellate courts addressed this issue but were in conflict with one another on what constituted sufficient notice. The Third District Court of Appeal did not have a decision at that time to follow.

If a product causes serious injuries, the manufacturer can be held strictly liable for the injury. The manufacturer is accountable for a defective design or failing to warn of dangers. In a recent Eleventh Circuit Court of Appeals lawsuit, the manufacturer of a transvaginal mesh product appealed the final judgment awarding over $6 million to a woman substantially injured by its product. The injured woman’s lawsuit originated in West Virginia but was consolidated and transferred to the Eleventh Circuit with similar Florida product liability cases. The manufacturer argued the federal district court abused its discretion by consolidating the cases. The manufacturer also claimed the court erred by denying it a judgment as a matter of law because the plaintiff failed to present sufficient evidence for both the design defect claim and the failure to warn claim.

The product at the center of the litigation was a transvaginal mesh device prescribed and transplanted by doctors. The product is a mesh sheet that is implanted to prevent the uterus, rectum, or bladder from falling through the vagina. The material making up the mesh was made from a type of plastic and cleared by the FDA, based on its similarity to an equivalent device on the market. The plaintiff had the mesh implanted in 2008 after suffering from pelvic Rusted Meshorgan prolapse. Following the surgery, she experienced pain and bleeding during intercourse, pelvic pain and pressure, and incontinence. Six months after the surgery, a visit to the doctor revealed she had exposed mesh in her vagina. The doctor operated in-office to trim the exposed mesh, but that did not alleviate the discomfort. Eventually, a second procedure was needed, which resolved the pain but caused her to lose sensitivity in her vagina.

On appeal, the defendant argued the consolidation caused unacceptable prejudice. The Circuit Court was unpersuaded by this, looking at established case law in holding the decision to consolidate is purely discretionary. Many factors are considered when weighing consolidation, including the burden on the parties, witnesses, the availability of judicial resources, and the length of time to conclude several cases as opposed to one. Prejudice against the opposing party is also assessed, but courts look at available remedies to mitigate the risks of confusion and prejudice. The appellate court concluded a joint trial was appropriate because there was substantial overlap in the evidence, facts, witnesses, and issues. The district judge had also utilized jury instructions to remind the jury there were multiple plaintiffs with unique aspects to their cases.

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Many considerations are made when filing a Florida car accident lawsuit. The injured person must name and notify all parties responsible for the injury, think of the experts needed to connect the defendants’ actions to the injury, and collect documentation to show the damages amount needed to cover the incurred hospital bills and lost wages. An important decision, albeit less obvious, is where to file the lawsuit. In a car accident lawsuit, an action may be filed in the home county of the insured, the county of residence of the defendant, or the county where the accident occurred. A recent Fourth District Court of Appeal decision (No. 4D17-1546) reveals additional locations where a lawsuit may be filed when an injured person must file suit against an insurance company to receive uninsured/underinsured (UM) benefits.

This appeal stemmed from a lawsuit against two uninsured motorist insurers. The injured person was a resident of Broward County, and the uninsured defendant driver was a resident of Hillsborough County. Taking the wheelThe accident occurred on I-75 in Manatee County. UM claims were filed with his insurance companies, which were both denied. Both companies were foreign corporations. The injured person then filed suit in Palm Beach County, which contains an office for an agent of one of the insurers. One of the defendant insurers filed a motion pursuant to Florida Rule of Civil Procedure 1.060 to transfer to a different county, which was granted. The plaintiff appealed.

Chapter 47 of the Florida Statutes provides the guidelines for determining proper venue. If the defendant is a domestic corporation, the lawsuit can only be brought in the county where the corporation usually keeps an office to handle its usual business, where the cause of action happened, or where the property in litigation is located. Similarly, lawsuits against foreign corporations are brought where the business has an agent or other representative, where the cause of action accrued, or where the property in the litigation is located. If there is more than one defendant, Chapter 47 allows the lawsuit to be brought in any county in which any defendant resides.

When responsible drivers purchase car insurance, especially additional coverage for uninsured/underinsured motorist (UM) coverage, they believe they are ensuring payment when accidents occur. A recently issued opinion from Florida’s Second District Court of of Appeal presents all of the various considerations a claimant should have when seeking payment from the insurer. The plaintiff-appellant in this Florida auto accident lawsuit was injured as a passenger in her father’s car. The woman filed claims against the driver of the other vehicle, alleging the costs of her injury exceeded the policy limits of the defendant. The injured daughter was covered by two UM policies through her father and mother, each from different auto insurers. The father’s policy provided $20,000 worth of UM coverage, and her mother’s provided $25,000 of UM coverage.

The daughter sued her mother’s insurer for UM benefits but did not sue her father’s insurer.  Pushing throughThe circuit court found she did not satisfy the condition precedent in her mother’s policy, denying her benefits of any amount. The court additionally ruled that even if the condition precedent were satisfied, she would only be able to access the difference between the policies in the amount of $5,000.00. Her mother’s insurer moved for summary judgment after this assessment, knowing the statute of limitations prevented the injured person from obtaining the father’s policy limits, so she would never be able to satisfy the preceding condition. The injured person appealed.

The insurer’s policy stated that an injured party may not sue for benefits if they have not met the terms of the policy. The relevant parts of the mother’s policy stated that when the injured person is entitled to recover damages in excess of the other policy limit, the insurer will pay up to the UM policy limit after the other collectible insurance has been exhausted. Florida Rule of Civil Procedure 1.120(c) allows condition precedents to be generally made, but the party denying the occurrence or performance of a condition precedent must plead it with particularity and specificity.

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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