Articles Posted in Wrongful Death

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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A Florida appellate court recently assessed an appeal stemming from an accident and negligent care that caused significant, fatal injuries. In a recent case, the personal representative of the injured person’s estate filed suit against several defendants, alleging the decedent was first injured by a malfunctioning sliding door at a drugstore, which led to her receiving inadequate care at a senior home, ultimately resulting in her death. The decedent suffered significant injuries from the fall at the drug store’s premises that were then aggravated by a second fall at the senior center. The representative initially filed two separate actions against the drugstore and the senior center but eventually moved to consolidate the two actions under Florida Rule of Civil Procedure 1.270(a).

In his motion, the representative alleged the wrongful death claim was based on successive injury-producing incidents, and both the drug store and the center contributed to the woman’s death.Book Stack The representative argued there was a substantial risk of inconsistent verdicts because one defendant could place the blame on the other defendant in each case. The representative asserted this could collectively minimize the defendants’ liability and the jury’s award of damages.

The Second District Court of Appeal looked at previous state decisions to determine whether the trial court erred when it denied the motion to consolidate. The Florida Supreme Court previously determined two separate actions involving two automobile accidents should have been consolidated because the damages could not be readily divided among the defendants in each action. (See Lawrence v. Hethcox, 283 So. 2d 41 (Fla. 1973).) The court ruled that separate actions would have increased the injured person’s challenges in proving how much each defendant was responsible. The court felt a denial of consolidation would obstruct rather than promote justice. Other district court verdicts reflect this reasoning in U-Haul Co. of Northern Florida, Inc. v. White and Hickey v. Pompano K of C Inc. Hickey had similar facts to the case at hand, in which a plaintiff suffered two separate slip-and-falls three weeks apart. The plaintiff in Hickey injured her knee, which was alleged to have contributed to the second fall that then exacerbated the first injury. The Fourth District pointed out that the defendant in each action could place the blame on the other defendant, which would result in a low verdict in one or both trials. Low verdicts are not grounds for a new trial, and the plaintiff would be blocked from an adequate remedy by appeal.

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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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Obtaining the damages available in a personal injury lawsuit often goes beyond holding the at-fault party accountable. In car accident cases, the insurers to the parties in the accident must abide by certain duties while handling the case. If an insurer does not attempt to settle in good faith, the insured may file an action against the insurer.  deployed airbagOften, if the insured is the at-fault party in the original car accident, she or he will assign the claim to the injured party. This all takes place after the original car accident litigation has occurred.

In a recent case (No.4D15-4724), the insured party was in a car accident with another man who died as a result of his injuries. The insured party had a $100,000 liability policy under his name and his business’ name. After the accident, the claim was promptly assigned to a claims adjuster. The insurer also advised the insured that the claim by the decedent’s estate could exceed his policy limits and that he had the right to hire his own attorney, which the insured chose to do.

The decedent’s estate’s representative called the claims adjuster to arrange for a statement with the insured about his personal and business assets and whether he was working when the accident occurred. The representative later claimed that the adjuster refused to make the insured available for the statement, but the claims adjuster responded that she would not have refused the request. No deadline was given by the decedent’s estate to make the insured available for a statement, and the representative did not advise that the statement must happen prior to settling the claim.

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One of the important functions of a civil lawsuit is obtaining damages from the at-fault party or parties in an attempt to be made whole. Another is to hold accountable the person, people, or entity responsible. When multiple parties create a negligent environment, civil actions can become complicated. Each personal injury case poses its own unique challenges, depending on the circumstances of the accident. An unpublished federal opinion, Seaboard Spirit Ltd. v. Antwon Hyman (No. 15-12953), looks at whether or not a District Court erred by allowing the estate of a longshoreman the ability to sue the ship owners after he was killed while aboard a cargo ship, helping to unload a vessel.

The estate filed a negligence action against the owners of the ship he was aboard, even though they had filed to be exonerated from the lawsuit. The shipowners had loaded a shipping container in the Bahamas, using a third-party stevedore, or loader.  The crew aboard the ship secured the container, but one of the chains securing it was too tight.Docked Ship When the ship arrived, the deceased man’s employer, a stevedoring company, began to unload the ship. The deceased worker was in charge of safety, so he walked up next to the trailer between the wall of the ship and the trailer, removed the wheel chocks, and verbally gave the OK to the mule driver to drive. Since the trailer was still lashed down, it shifted to the side and pinned the longshoreman against the wall, crushing him to death.

The ship owners filed under the Limitation of Liability Act to be exonerated from liability, claiming that they were not responsible for the worker’s death. The estate protested, arguing that the ship owners were liable under the Longshore and Harbor Workers Compensation Act (LHWCA). The estate alleged that the ship was responsible because the crew helped secure the cargo in the Bahamas, acting as an on-loading stevedore. The District Court agreed with the ship owners that their actions in on-loading and securing did not proximately cause the accident that resulted in the longshoreman’s death. Instead, the court found that the longshoreman was responsible for his own death by choosing to place himself between the wall and the trailer. Even with these findings, the court found that the estate may file a separate lawsuit against the shipowners.

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Nursing homeIf a family member goes into a nursing home, a lot of paperwork must be completed. This can be overwhelming, and one may lose track of everything signed. Several nursing homes require the signature of an arbitration agreement before the resident is admitted. An arbitration agreement is a contract between two parties who agree to see an arbitrator, who is usually picked by the facility, to settle any disputes arising from the resident’s stay at the nursing home. This is in lieu of a traditional lawsuit filed in the state or federal court system.
In Olson v. Florida Living Option (Case No. 2D15-5687), the Second District Court of Appeal reviewed an arbitration agreement and whether the negligence alleged by the estate of the deceased resident fell within the scope of the agreement.

The injured resident was injured while living at his most recent nursing facility. He had previously signed an arbitration agreement at a different assisted living facility in the same retirement community. Following the injury and death of the resident, the estate filed suit in the state court system against the nursing home and its parent company. The defendants moved to compel arbitration, using the signed agreement as proof the two were in the same community and affiliated with each other. The trial court granted the motion, finding that the arbitration agreement extended from the then-current residential facility to all future admissions.

The appellate court listed three things that it must consider in any determination of whether to uphold a motion to compel arbitration:  whether a valid agreement exists, whether an arbitrable issue exists, and whether the right to arbitration was waived. The court noted that, while an arbitration agreement can benefit a third party, like an affiliate nursing home, the nursing home company failed on the question of whether or not the scope extended to a third party. The court looked at the relationship between the contract and the claim at issue. The court felt the language of the arbitration agreement was broad in its scope regarding events, using “arising out of and relating to” language, but it limited the agreement to “this Facility.” The second facility to which the resident went did not have its own arbitration agreement, nor did it refer to one in the contract. Since there was no dispute that the second residence was a “separate facility,” the court determined the argument to extend the arbitration agreement to the injury at the second residence failed. The order compelling arbitration was reversed, and the case was remanded back to the trial court, where the estate of the deceased resident can pursue their original negligence action.

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The Florida Supreme Court recently ruled on an issue in conflict between two District Courts of Appeal in Chirillo v. Granicz (No. SC14-898). Both district courts weighed which legal duty should be applied in wrongful death cases when a patient commits suicide while under the care of a physician or psychotherapist. In Florida, the first stage of an appeal after a circuit court trial is one of five district court of appeals. If these courts rule differently on an issue, it is up to the Supreme Court to determine which interpretation of the law is correct.

In Chirillo, the deceased patient changed medication from one antidepressant to another. The deceased patient stopped the new medication and alerted her primary care physician that she did so because of side effects like not sleeping well and gastrointestinal problems. The deceased reported to the office she was not “feeling right,” and her medication was changed to Lexapro. sadness-1546812-639x852 However, no other appointment was made with the primary care physician. After the patient committed suicide, the estate filed suit against the primary care physician, alleging he was responsible for her death. In this case, the Supreme Court reviewed the Second District Court of Appeal’s reversal of the trial court’s summary judgment in favor of the defendant physician. The trial court had determined a primary care physician did not owe a duty to the deceased patient just because he had knowledge of her depression and changed her medication. The appellate court ruled that the question was whether or not the physician exercised reasonable care in the treatment of the patient. Based on this assessment, the Court of Appeal felt summary judgment was improper because the deceased person’s estate’s expert witness testimony created a genuine issue of material fact regarding whether that duty was breached.

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In personal injury actions, it is frequently necessary to help the fact-finder understand how the alleged negligence caused the injury to the plaintiff. Often, this is accomplished by expert testimony, which is guided by Florida Statutes and Rules of Civil Procedure (See Fla. Stat. §90.702 and Florida Rule of Civil Procedure 1.390.) The court first determines whether expert testimony is appropriate for the subject matter. This may include an assessment of whether or not there is recognized science or specialized knowledge available to support the subject. The court then decides whether the witness offered by counsel is qualified to testify.

Gavel RestingThe Third District Court of Appeal recently reviewed whether or not sanctions were appropriate after the trial court dismissed a wrongful death action when it determined that the estate did not comply with the statutory requirements guiding expert witness qualifications in medical malpractice lawsuits. In Bery v. Fahel (3D15-0756), the personal representative filed suit against a family practitioner, relying on the affidavit of an emergency medical physician to support the allegations against the defendant family practitioner during the initial stages of the litigation. The defendant moved to dismiss, claiming the estate failed to comply with Fla. Stat. §766.202 and Fla. Stat. §766.203. The trial court agreed with the defendant and dismissed the lawsuit. The personal representative appealed, but the appellate court affirmed the lower court’s ruling. On remand, the trial court awarded the defendant fees and costs as part of the sanctions, and the estate appealed once more.

Fla. Stat. §766.202 and Fla. Stat. §766.203 add additional responsibilities for the injured party to meet when a personal injury action involves medical malpractice. The injured person or the estate must conduct a pre-suit investigation prior to issuing a notification of intent to initiate medical negligence litigation. This investigation is supposed to establish whether there are reasonable grounds to believe there was negligence in the care or treatment of the injured person, and whether the negligence caused the injury. The law dictates that the affidavit must be completed by a medical expert who regularly engages in the practice of his or her profession and specializes in the same specialty as the defendant.

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Often, personal injury actions involve contract law. For example, in many Florida automobile accident cases, the injured person must deal with either his or her own insurance policy or the policy of the at-fault party. In these types of cases, the terms of the policy are scrutinized to determine whether a clause will either provide or limit benefits to the injured person or persons. For any contract, the terms of the policy must be clear, and any vagueness in the contract is interpreted in favor of the party who did not draft the document. But before any contract can be effective, all parties must agree to the terms and have the presence of mind to do so.

The Second District Court of Appeal recently affirmed a ruling in favor of an estate filing a wrongful death case against a nursing home. In this case, the nursing home appealed the trial court’s decision not to grant their motion to compel arbitration per the Resident Admission and Financial Agreement.
hospital bed

In Sovereign Healthcare of Tampa v. Estate of Otto N. Schmitt (2D15-2969), the personal representative and widow of the deceased filed suit against the nursing home that provided him long-term residential care twice before his death. The nursing home attempted to move the proceeding to arbitration per the agreement signed at the beginning of each residence. The agreement was not signed by the deceased resident, and it became clear that the wife did not have the authority to sign on her husband’s behalf. In its ruling, the appellate court pointed to a prior ruling made in 2014 dealing with the same issue in Sovereign Healthcare of Tampa v. Estate of William S. Yarawsky (2D13-2083).

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In all personal injury actions, the at-fault party or parties must owe a duty to the injured party or parties in order to be found liable for the damages incurred by the victim or victims. A duty exists when the law requires a certain person or entity to exercise a specified amount or type of care in a certain profession or situation. If no duty exists, a claim against a defendant can be dismissed by a trial court judge toward the beginning of the proceedings.

Money PharmacyIn Sorenson v. Prof. Compounding Pharmacists of Western Pennsylvania (Case No. 2D15-441), the executor of an estate sought review of the dismissal of the estate’s claim when the pharmacist failed to use proper care in filling a prescription. The deceased man had previously suffered lower back pain caused by a car accident, and he managed his pain through a pump delivering hydromorphone into his spinal canal. The man, originally from another state, visited a Florida Pain Management Center, where he received a prescription for hydromorphone that increased the concentration from 10mg/mL to 30 mg/mL.

The prescription was sent to the defendant pharmacist, who compounded the medication and sent it to the Pain Management Center. The center administered the medication through his pain pump, and he died later that same day. The executor filed suit against the Pain Management Center, several health care providers used by the center, and the pharmacy that compounded the medication. In its claim against the pharmacist, the estate alleged the pharmacy negligently prepared and dispensed the prescription for hydromorphone, alleging the dosage amount was unreasonable on its face. The trial court dismissed this claim with prejudice, finding that the pharmacist did not owe a duty to the deceased man.

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