South Florida Personal Injury Lawyers Blog

Punitive Damages in a Florida Personal Injury Case

Published on: December 1, 2021 | by Friedman, Rodman & Frank, P.A.

When someone is injured while on the job, it can be both physically and emotionally difficult to recuperate. When an employer terminates a worker because they can no longer work at the level they used to, it may be cause for a lawsuit. A Florida appeals court was recently tasked with deciding whether an employee who was terminated after being injured on the job was entitled to, amongst other financial compensation, punitive damages—meaning the employer acted callously and disregarded her rights by not reinstating her.

Under maritime law, when someone works on a ship, the shipowner has the responsibility to provide food, lodging, and medical services—called “maintenance and cure” if a crew member is injured while working aboard the ship. However, the obligation to provide maintenance and cure concludes when the worker reaches maximum medical improvement.

In this case, the plaintiff worked as a server aboard a cruise ship. Approximately three months into her employment, she was hit by a car when on shore leave. The plaintiff then debarked the ship and returned home, and her cruise ship employer—the defendant in this case—paid her medical bills. She later was deemed at maximum medical improvement, returned to work, and then complained about chest pain within weeks; then, her employer told her to speak with a physician and they would reimburse her medical bills. When the plaintiff’s doctor stated the plaintiff was not fit to work as a server but declared her at the maximum medical improvement level, the defendant terminated her benefits. Over the next three years, the plaintiff sent the defendant her medical bills and statements from her doctor; the defendant refused to reinstate her benefits.

Road Rage and Aggressive Driving Lawsuits in Florida

Published on: December 1, 2021 | by Friedman, Rodman & Frank, P.A.

According to the National Highway Traffic Safety Administration (NHTSA), over 90 percent of accidents involve driver error. Moreover, nearly 35 percent of those accidents involve road rage or aggressive driving. In Florida, road rage commonly refers to the anger a driver experiences when they experience stress or frustration while driving. Road rage is a serious problem in Florida, and a person’s fleeting rage can have long-term and potentially fatal consequences for other drivers, passengers, and bystanders.

While Florida authorities often distinguish between “driver error” and “aggressive driving,” many errors begin with an error and escalate into a rage. For instance, news reports described a harrowing road rage accident that took the life of a pregnant woman. The woman hit a motorcyclist and drove away from the incident. While the motorcyclist did not suffer injuries, he followed her to get information. The motorcyclist and two witnessed tried to get the woman to stop at an intersection; however, she continued driving and went to her home. The motorcyclist and witnesses followed her and waited outside of her home, and called 911. The woman appeared from her house with a firearm and pointed it at the motorcyclist and witnesses. The motorcyclist drew his handgun and shot at the woman multiple times. He remained at the scene of the accident until emergency responders arrived. Tragically, the woman died from her wounds.

Some common driver errors include:

New Details Emerge Following Florida Tesla Crash

Published on: November 18, 2021 | by Friedman, Rodman & Frank, P.A.

Recently, news reports described new harrowing details following a Florida Tesla crash that occurred last September. The National Transportation Safety Board (NTSB) conducted an investigation and reported that that the car flew through a yellow light at around 90 miles per hour. The speed limit in the neighborhood was 30 mph. Apparently, as the driver approached reached the intersection, he hit the accelerator to 100%. The driver then sped through the light and slammed into two trees in succession. Following the impact, the car’s battery exploded and burst into flames. The fire reignited at least one time which caused firefighters to experience challenges when trying to extinguish the explosion. The 20-year-old driver and his 19-year-old passenger died at the scene of the accident.

Tesla is frequently under fire for its self-driving or “autonomous” driving options. Many argue that these functions are not nearly as safe as the company touts, and a lack of driver experience and company oversight leads to deadly consequences. However, this accident seems to involve another issue concerning lithium batteries. The NTSB has repeatedly voiced concerns about lithium battery fires in aircraft, Teslas, and other vehicles. The agency has issued safety recommendations urging regulators, manufacturers, and firefighters to prevent and prepare for these types of fires.

Lithium-ion batteries have been the source of highly publicized investigations and recalls. Lithium is the lightest metal with the least dense solid element thereby creating a high-energy-density. This density allows lithium to store more energy over a longer time, compared to traditional batteries. Despite this benefit, the battery poses a serious danger because of its combustible material. A single cell can get hot to the point where it catches fire and spreads to the next cell. This “thermal runaway” effect essentially makes the battery easily catch fire or explode quickly.

Can You Recover Attorney’s Fees in a Florida Personal Injury Lawsuit?

Published on: November 18, 2021 | by Friedman, Rodman & Frank, P.A.

Many Florida personal injury lawyers represent clients on a “contingency fee” basis. Under this framework, an attorney will get paid by deducting a portion of a final, personal injury or wrongful death settlement or from a damages award. Recently, a Florida injury plaintiff moved to assess attorneys fees based upon a settlement proposal. The trial court denied the motion, reasoning that the settlement proposal was ambiguous.

The case stems from injuries the plaintiff suffered while living as a tenant on the defendant’s property. Before litigation, the plaintiff served the defendant with a settlement proposal according to Florida Statutes § 768.79 and Florida Rules of Civil Procedure (FRCP) 1.442. The defendants did not accept the proposal, but a jury found it in favor of the plaintiff. The plaintiff moved for attorneys fees because the judgment exceeded the settlement proposal by more than twenty-five percent.

The defendants argued that the proposal included ambiguous and vague language and was beyond the scope of the claims. Florida courts strictly construe the statute and rule because the common law rule is that each party should pay its fees. Furthermore, settlements proposals must be “sufficiently clear” to allow the offeree to make an informed decision. The purpose of the rule is to conserve judicial resources and reduce litigation costs by encouraging settlement negotiations.

Florida Court Distinguishes Between Ordinary Negligence and Medical Negligence

Published on: November 10, 2021 | by Friedman, Rodman & Frank, P.A.

Recently, an appellate court issued a decision addressing whether a plaintiff’s claim falls under Florida’s negligence statute or the state’s medical malpractice statute. The plaintiff filed a claim against the defendant, a healthcare group, for injuries he suffered while receiving treatment at the facility. According to the record, the hospital admitted the patient for diagnostic imaging. Following the procedure, the plaintiff tried to move from the exam table to a wheelchair. However, the plaintiff fell because the attendant failed to secure the wheelchair brakes properly. The plaintiff claimed that his claim was based on ordinary negligence, not medical malpractice.

However, the court dismissed the complaint at trial, finding that the claim sounded in medical malpractice, and the plaintiff failed to abide by the applicable statute of limitations.

In cases like this, the initial inquiry is based on determining whether the claim stems from ordinary negligence or medical malpractice. According to Florida courts, these types of “gray-area” cases hinge on the specific circumstances of the injury. However, the law limits a court’s inquiry to the allegations within the “four corners” of the plaintiff’s complaint at the preliminary stages. In this case, the court found that the plaintiff alleged sufficient facts to meet the elements of an ordinary negligence claim. As such, they reversed the trial court’s finding, ruling that the dismissal with prejudice was inappropriate.

The Importance of Expert Witnesses in Florida Personal Injury Cases Seeking Punitive Damages

Published on: November 10, 2021 | by Friedman, Rodman & Frank, P.A.

The Third District Court of Appeals recently addressed a defendant’s appeal following a jury trial awarding the plaintiff compensatory and punitive damages. According to the facts, the cause of action arises from a car accident when the defendant crossed over the center line and slammed into the plaintiff’s vehicle, causing it to flip over nearly two times. The plaintiff and her children survived, and she filed a negligence lawsuit against the defendant. The plaintiff amended her complaint and added a claim for punitive damages, arguing that the defendant was high on heroin at the accident.

Before trial, the parties provided a list of witnesses and any potential expert testimony. The defendant filed an “expert disclosure” for a CPA to testify regarding the plaintiff’s economic damages. Later the same day, the defendant filed a supplemental disclosure for the CPA, indicating that the expert would testify to the defendant’s net worth and the amount he needs to sustain himself. Further, the defendant claimed that the expert would testify about the effect that punitive damages would have on his livelihood. The plaintiff moved to strike the disclosure, arguing it was untimely; the court agreed and limited the CPA’s testimony to economic damages. The defendant testified to his limited financial resources at trial, but he did not call the CPA as a witness. The defendant appealed the jury’s award of punitive and compensatory damages to the plaintiff.

Under Florida law, courts can exercise discretion when determining whether to allow an untimely disclosed witness. Courts should make their decision primarily based on whether the testimony will prejudice the objecting party. Prejudice refers to the objecting party’s surprise, not to the adverse nature of the testimony. Some factors that a trial court should consider including:

Court Finds in Favor of Florida Boat Accident Victim, Reversing Mandatory Arbitration

Published on: October 31, 2021 | by Friedman, Rodman & Frank, P.A.

A Florida appellate court recently reviewed a woman’s appeal after a trial court compelled arbitration of her personal injury lawsuit. The case arose when she sought damages following injuries she suffered in a boat accident. She suffered injuries on the ladder of a boat she rented as part of her club membership with the defendant. In response, the defendant moved to dismiss the complaint, and in the alternative, compel arbitration. The plaintiff filed a response, contending that the defendant waived its right to arbitrate by filing and participating in a limitation of liability action in federal court.

The record indicates that the defendant filed a complaint in federal court for exoneration based on several issues including the Limitation of Shipowners’ Liability Act. The complaint addressed the plaintiff’s claim, and the plaintiff answered by filing her lawsuit, raising affirmative defenses, and preserving her right to a jury trial. After that, the defendant objected to all of the plaintiff’s assertions and argued that her injuries resulted from her negligence moved to compel arbitration.

Under Florida law, waiver occurs when a party voluntarily and intentionally relinquishes a known right or conduct. Courts evaluating whether a party waived their right to arbitrate must look at the totality of the circumstances and whether the defaulting party acted inconsistently with their right to arbitrate. Florida courts have held that initiating a lawsuit without seeking arbitration amounts to an affirmative selection of a path that runs counter to the point of arbitration. Once a party waives their right to participate in arbitration, they may not reclaim their right without the other party’s consent.

Florida Court Finds Relation-Back Doctrine Permits Injury Lawsuit Against Deceased Defendant

Published on: October 31, 2021 | by Friedman, Rodman & Frank, P.A.

A Florida appellate court recently decided a case addressing whether a trial court erred in dismissing a plaintiff’s car accident lawsuit against a deceased defendant. Four years after the accident, the plaintiff filed a lawsuit against the defendant. The defendant in the case passed away three months before the plaintiff’s action. The lower court removed the deceased woman from the filing and substituted the woman with the personal representative of her Estate. In response, the Estate moved to dismiss the complaint, contending that the court lacked jurisdiction over the action. Specifically, they argued that the action could not proceed because it named a deceased person as a defendant. Further, they asserted that the complaint could not be amended and relate back to the original filing.

Under Florida law, negligence actions must include a:

A cause of action in negligence;

Do Florida Schools Have a Duty to Children Walking to the Bus Stop?

Published on: October 24, 2021 | by Friedman, Rodman & Frank, P.A.

A Florida District Court issued an opinion addressing whether a School Board is liable for injuries a child suffered while walking to her bus stop. The case arose when a car hit the child while crossing the road to reach her school bus stop. In response to the plaintiff’s lawsuit, the School Board (School) filed a motion for summary judgment asserting sovereign immunity. The trial court denied the motion, and the School appealed.

Sovereign or governmental immunity is a legal concept that protects federal and state governments from certain civil lawsuits. Under Florida law, individuals may commence a tort claim against the government if their employee’s actions caused the plaintiff’s damages. However, the statute only allows these cases in certain situations and imposes strict notice requirements and provides limitations to the damages one can recover against the government.

Typically, governmental entities may be liable if they create a “known, dangerous condition” that may not be readily apparent, and they have knowledge of the presence of individuals likely to suffer injuries. In those cases, the governmental entity has a duty to warn those who might suffer injuries or avert the danger. However, Florida courts have explained that the duty only applies in cases where the condition is “so serious and so inconspicuous” that it essentially amounts to a trap.

Florida Accident Victim Prevails on Appeal Based on Jury Instruction

Published on: October 24, 2021 | by Friedman, Rodman & Frank, P.A.

An appellate court recently issued a decision in a Florida accident case resulting in serious injuries. The defendant admitted fault and the issues at trial related to damages, causation, and severity of the plaintiff’s injuries. The jury found in favor of the plaintiff but failed to address whether she was entitled to damages for her preexisting condition.

Florida follows the theory of the “eggshell plaintiff.” Under this concept, negligent parties take the injury victim as they found them. This means that the defendant will be liable for the full extent of a plaintiff’s injuries, even if their injuries were more than an average person would experience under similar circumstances. The doctrine applies in cases when an injury:

Activates a latent condition;