South Florida Personal Injury Lawyers Blog

Florida Appeals Court Reverses Lower Court Decision in Auto Insurance Case

Published on: January 31, 2023 | by Friedman, Rodman & Frank, P.A.

In a recent case, the Fourth District Court of Appeals in Florida issued an opinion in an appeal involving an insurance claim between an Appellant, the insurer, the Appellee, the insured. The insured sued the insurer seeking a declaration that she had Uninsured Motorist (UM) coverage following an accident. The jury found in favor of the insured because the insurer failed to obtain a written rejection. The trial court entered a partial final judgment for the insured. The insurer appealed, claiming that verbal waivers of UM coverage are allowed in Florida and that the insured had verbally rejected UM coverage over the phone. The appeals court affirmed the partial final judgment.

The insured then filed a fourth amended complaint, asserting a single bad faith claim based on the insurer’s denial of coverage due to an alleged verbal waiver, and also moved for punitive damages.

The case arose when the insured contacted the insurer over the phone to purchase auto insurance coverage. During the call, the insured declined UM coverage. The insurer told the insured that she would need to sign a rejection form. Days after the policy was purchased, but prior to the insured receiving the rejection form, the insured was involved in an accident. Nearly a month after the policy was purchased, the insurer mailed the insured a letter stating that because the insured had declined UM coverage, she had to fill out and return the UM coverage rejection form. The letter contained the following warning: “If you do not return the form in its entirety or we are unable to match it to your policy, UM coverage will be added to your policy.” The insured sued the insurer seeking a declaration that she had UM coverage.

Florida Appeals Court Affirms Lower Court Decision in Insurance Claim Case

Published on: January 31, 2023 | by Friedman, Rodman & Frank, P.A.

In a recent case, the Third District Court of Appeals in Florida issued an opinion in an appeal involving an insurance claim between the Appellants, the plaintiff, and the Appellee, Citizens Property Insurance Corporation (Citizens). The plaintiff sued Citizens after a claim for hurricane damage he filed was denied by Citizens due to late notice. Citizens moved for summary judgment on the basis that the plaintiff failed to promptly report his claim. The trial court granted summary judgment, and the plaintiff appealed.

The plaintiff was issued a homeowners policy by Citizens. The policy expressly barred any hurricane claims filed outside of a three-year window. Additionally, the policy requires claimants to give prompt notice of damages for claims. In the aftermath of Hurricane Irma, the plaintiff’s home sustained interior and exterior damage to his residence. He retained a public adjuster, and two years and seven months after the storm, he reported a claim to Citizens. Citizens responded by denying the claim, stating that due to the length of time that had passed between the date of the loss and the date the loss was reported, Citizens considers the loss to be a late report claim. Citizens then assigned a field adjuster. According to the field adjuster’s report, due to the passage of time, he was unable to determine if the exterior or interior damages were the result of Hurricane Irma. Citizens requested photographs and documentary evidence from the public adjuster, without success, though the plaintiff did tender a written proof of loss. Citizens denied the claim, asserting late notice.

At trial, the plaintiff testified that he noticed leaks throughout his residence the day after the storm struck. He stated that he observed roof leaks and attempted to effectuate repairs using tar approximately one month after the hurricane. The next year, the plaintiff made more roof repairs, including tile replacement, but did not report damages to Citizen. The plaintiff cited a lack of fluency with the terms of his policy as the reason why he did not report the damage at the time.

Florida Appeals Court Reverses Lower Court Decision in Wrongful Death Case

Published on: January 26, 2023 | by Friedman, Rodman & Frank, P.A.

In a recent case, the Fifth District Court of Appeals in Florida issued an opinion in an appeal involving a wrongful death complaint between the Appellants, the plaintiff, and the Appellee, Stetson University. The plaintiff sued Stetson for wrongful death after Nicholas Blakely died from cardiac arrest during a Stetson football team practice. The trial court found that two identical releases signed by Blakely before the 2016 and 2017 seasons in order to play football were sufficiently clear to bar claims brought against Stetson arising from the cardiac death.

Blakely was a student and scholarship football player at Stetson in 2016 and 2017, his freshman and sophomore years of college. On August 28, 2017, he removed himself from an afternoon practice, complaining of dizziness and chest tightness. The assistant athletic trainer took his pulse, gave him water, removed his helmet, and loosened his pads before sending him over to some shade. Approximately forty to forty-five minutes later, Blakely collapsed. Although Stetson staff called 911 and attempted various emergency medical procedures, Blakely died after being transported to the hospital. The record evidence shows that during an April 2017 practice, Blakely had complained of chest tightness and had mentioned to trainers that he experienced chest tightness twice in high school. There is further record evidence that on the morning of August 28, 2017, Blakely informed the head football athletic trainer that he was not feeling well, complaining of a bad cough, chest congestion, and shallow breathing. The trainer believed he had a cold and did not refer him to the student health clinic, instead allowing him to participate in practice that day without restrictions.

On appeal, the plaintiff raised two issues. First, that the language in the release was insufficient to be enforceable as a matter of law, and second that genuine issues of material fact exist concerning the scope of the release and whether Stetson’s alleged tortious conduct fell within that scope. The appellate court decision found merit in the plaintiff’s first argument, subsequently reversing the final judgment entered in favor of Stetson, and thus did not feel the need to address the second issue. The opinion stated that the combined factors surrounding the release, including the language found within, allowed the court to determine that the exculpatory clause was not clear and unambiguous and that the trial court erred in granting summary judgment in favor of Stetson.

One Dead in Fatal Miami-Dade Tow Truck Car Accident

Published on: January 26, 2023 | by Friedman, Rodman & Frank, P.A.

Speeding is one of the top causes of car and traffic accidents. Driving at high speeds increases both the likelihood and the severity of car crashes. Driving at higher speeds makes it more difficult to react to changes or mistakes on the road. Additionally, higher speeds lead to more serious crashes when drivers do collide with other vehicles or obstacles. Unfortunately, Florida experiences extremely high levels of car accidents and auto fatalities. According to the Florida Department of Highway Safety and Motor Vehicles (FDHSMV), in 2021, car accidents spiked throughout Florida after two straight years of decline. Throughout 2021, Florida saw 401,170 total car accidents. Additionally, approximately 40% of car accidents in Florida result in fatalities. Even more concerningly, according to the FDHSMV, fatal car accidents have been on the rise throughout the state. A recently published news article discusses a fatal crash in Miami.

According to the news article, the accident occurred late on the night of Sunday, December 11, around midnight. The crash happened just after midnight in the area of Southwest 22nd Avenue and Southwest 17th Street. A tow truck collided with a Honda CR-V. The CRV skidded about 83 feet before hitting a curb and flipping onto the driver’s side before skidding another 57 feet and coming to a stop. The CR-V then became engulfed in flames. The driver of the CR-V was a 69-year-old Miami-Dade College sign language professor.

The driver of the tow truck was taken into custody at the scene after performing roadside exercises. He refused to consent to a breath sample, and a warrant was executed for blood to be drawn. Blood was drawn 4.5 hours after the crash and came back negative for drugs or alcohol. According to the arrest report, the tow truck had a flashing light and an audible siren activated while it was traveling at a high speed in a residential area when it collided with the CR-V. Witnesses stated that the tow truck was weaving and passing slower-moving vehicles. The posted speed limit is 35 mph in that zone, but the tow truck data showed it was going 81 mph roughly three seconds before the crash, according to the arrest report.

Florida Appeals Court Reverses Lower Court Decision in Wrongful Death Case

Published on: January 21, 2023 | by Friedman, Rodman & Frank, P.A.

In a recent case, the Fourth District Court of Appeals in Florida issued an opinion in an appeal involving a wrongful death complaint between Appellants, known as “the School” and Appellee, the plaintiff. The plaintiff sued the School for wrongful death after her 13-year-old son committed suicide following the School’s request that he withdraw from the school for selling a cape pen to a classmate. The School filed a motion to dismiss or compel arbitration. The appeals court reversed the lower court decision, ruling that an order denying the School’s motion to dismiss or compel arbitration is reversed.

The plaintiff’s complaint alleged that the School violated its policies and procedures as well as a common law duty to assess and provide suicide prevention and crisis support to a disciplined student. The complaint further alleged that the School was negligent for failing to conduct a full investigation and imposing a punishment that had no basis in its policies and procedures. Notably, at least twenty of the plaintiff’s allegations implicated the School’s investigation of the incident and the appropriateness of the School’s disciplinary measures.

The School moved to dismiss the complaint or, in the alternative, to compel arbitration pursuant to the enrollment contract that the plaintiff signed when the child was admitted to the school. The enrollment contract provides that “in the event of a disagreement with [the school], or if I have a legal claim against [the school], I agree to address any such disagreement or claim through the process of conflict resolution, including Christian mediation and binding arbitration as outlined in the Parent/Student Handbook.” Additionally, the handbook contained a section prohibiting vape pens and provided that possession or use of a vape pen will result in the termination of enrollment. Ultimately, the trial court denied the School’s motion, concluding that the plaintiff’s son’s death did not arise out of her child’s enrollment at the school.

Florida Appeals Court Affirms Lower Court Decision in Workers’ Compensation Case

Published on: January 21, 2023 | by Friedman, Rodman & Frank, P.A.

In a recent case, the First District Court of Appeals in Florida issued an opinion in an appeal involving a benefits dispute between an employer and an employee, with one of the justices concurring in part and dissenting in part. The claimant is an employee of Brevard County Fire and Rescue seeking compensation for treatment for post-traumatic stress disorder (PTSD). The Judge of Compensation Claims (JCC) found that the accident in question did not give rise to any need for treatment due to PTSD or any other compensable mental injury. The claimant argued on appeal that first responder claimants can seek workers’ compensation benefits for PTSD under either § 112.1815(2)(a)3 or paragraph (5), or both.

The majority on the court of appeals affirmed the lower court ruling. While the majority agreed with the claimant’s argument that first responder claimants can seek workers’ compensation benefits for PTSD under either § 112.1815(2)(a)3 or paragraph (5), or both, they found that the availability of these claims did not alter the outcome in this case. However, one member of the appeals panel concurred with the majority in part and dissented in part. The dissent engages with the issue of first impression, in this case, establishing the burden of proof that first responders must meet to establish entitlement to medical benefits only for mental or nervous injuries, such as PTSD, arising from their employment where no physical injury accompanies the injury.

The dissent found that the JCC erred in concluding that the only path for first responders to establish the compensability of a mental or nervous injury such as PTSD was via subsection 112.1815(5), Florida Statutes, which was enacted in 2018 to allow for medical and indemnity benefits for PTSD arising out of employment involving eleven specific events. Instead, the plain language of subsection (5) states that it applies to PTSD claims “notwithstanding sub-subparagraph (2)(a)3.” and related statutes, which is a legislative acknowledgment that both provisions were intended to co-exist. Subsection (5) supplements and complements sub-subparagraph (2)(a)3. For this reason, the claimant was entitled to seek medical benefits (but not indemnity benefits) under sub-subparagraph (2)(a)3. The opinion goes on to state that the JCC erroneously concluded that even if a PTSD claim could be brought under sub-subparagraph (2)(a)3., the claimant failed to present clear and convincing evidence of his claimed injury. However, this standard of proof is specified by statute for only situations where the mental injury arises from a physical injury. In the case here, the default standard is a preponderance of the evidence, meaning the claimant’s claim should be reevaluated on remand under the proper standard.

Florida Appeals Court Affirms Lower Court Decision in Premise Liability Case

Published on: January 11, 2023 | by Friedman, Rodman & Frank, P.A.

In a recent case, the First District Court of Appeals in Florida issued an opinion in an appeal involving a duty to warn or duty of reasonable care premise liability action between a plaintiff that was a customer in a store and the defendant, the company operating the store. The suit resulted from an incident where the plaintiff tripped inside the store. The trial court found in favor of the defendant, finding that the plaintiff due to an open and obvious condition. In Florida, the open and obvious doctrine provides that a landowner is not liable for injuries and harm caused by a dangerous condition of their land when the danger is known or obvious unless the landowner would anticipate those injuries.

A recent state supreme court case explored the issue of the open and obvious doctrine when a plaintiff sued a church after tripping on the top step of a flight of stairs. In that case, the court ruled that due to the fact that the plaintiff had used those stairs just minutes before and due to the fact that the top step was made from different material and looked different from the other steps, the danger was open and obvious, and therefore the defendant was not liable for the injury.

While the open and obvious doctrine can prevent plaintiffs from successfully holding landowners fully accountable for injuries in Florida, there are other ways to make sure injured parties are properly compensated. Florida landowners are still required to maintain their land and the premises in a safe condition. The courts of Florida have ruled that landowners can still be at fault for failing to maintain a safe premises, even if an obvious or open danger means they do not need to warn others. Specifically, even in circumstances that are open or obvious, property owners should anticipate that people on the property will encounter the hazard, and subsequently can be found negligent for failing to maintain the premises safely. In such a situation, the plaintiff may be found to have contributed to their own injury, but the landowner can still be apportioned blame.

Wedding Guest Sues Bride and Caterer for “Poisonous” Marijuana-Laced Wedding Food

Published on: January 11, 2023 | by Friedman, Rodman & Frank, P.A.

Wedding guests are generally subject to the desires of the bride and groom when it comes to the food and drinks served at a wedding. Guests with dietary restrictions or strong food preferences may need to avoid certain wedding foods, or even skip out on a reception entirely if an undesired or dangerous food is on the menu. For party guests to make an informed decision about whether to eat the food that is offered, the guests should be made aware of what exactly is on the menu. A Florida wedding guest has recently filed a lawsuit against both the bride and a catering company for serving marijuana-laced food at the wedding without the guests’ consent.

According to a recently published local news report discussing the lawsuit, the plaintiff was a guest at the defendant’s wedding held in the Orlando area in February 2022. The bride hired the other defendant, a catering company, to serve food at the wedding reception. The plaintiff’s lawsuit alleges that the wedding guests were not notified that there would be any drugs or other adulterants added to the wedding food, but the plaintiff and other guests reportedly began to feel ill after consuming the wedding food. Other guests identified the feeling as marijuana intoxication, and authorities were called to the scene. Several wedding guests were treated for the intoxication, with some reportedly being hospitalized. Police took some of the food samples into evidence, and it was later confirmed that the food contained highly intoxicating levels of marijuana. The bride and the caterer were later arrested on drug and criminal negligence charges.

The plaintiff’s lawsuit alleges that the bride and caterer were negligent in serving intoxicating drugs to wedding guests without their consent. The lawsuit claims that the plaintiff suffered from marijuana poisoning by consuming the food, and suffered serious damages as a result. Poisonings are the leading cause of deaths and hospitalizations among Florida residents aged 25-54 years old, with many of these events resulting from the consumption of illegal or improperly administered drugs. Poisoning hospitalizations also occur as a result of chemical exposure and foodborne illness. Florida residents who have been poisoned by another, whether intentionally or negligently, may have a cause of action for damages against the other party. An aggrieved party can pursue a Florida personal injury claim to hold the other party accountable for their actions and receive compensation for the negative effects of the poisoning.

Wrong-Way Driver on I-95 Causes Devastating Crash in Palm Beach County

Published on: January 1, 2023 | by Friedman, Rodman & Frank, P.A.

In Florida and the United States, drivers almost always are required to drive on the right-hand side of the road. This has been the practice since the days of the horse and carriage, and generally, it is easily followed by everyone on the road. As cities have grown and traffic control has become more complicated, the chances of wrong-way accidents have increased. One-way streets and divided highways can confuse some drivers and result in them traveling the wrong way into head-on traffic. A man was recently killed in Palm Beach County when he entered Interstate 95 going the wrong way and got into a head-on collision with another vehicle.

According to a local news report discussing the recent crash, a 26-year-old man driving a Toyota Corolla entered the I-95 northbound traffic lanes from the wrong direction on the 6th Avenue exit in Lake Worth Beach at around 4:00 AM on December 2nd. The wrong-way driver traveled a short distance on the interstate and then crashed head-on into a Chevrolet Silverado that was traveling northbound. Emergency crews responded quickly to the crash, but the driver of the Toyota was pronounced dead at the scene. The driver of the Chevrolet was transported to a local hospital with life-threatening injuries.

The design and construction of freeway entrances, exits, and interchanges are not consistent across our state. Drivers approaching an unfamiliar traffic feature have a duty to pay attention to the signage and instructions and remain on the correct side of the road while getting on the freeway. Drivers who fail to abide by traffic rules and cause an accident can be found civilly, and even criminally liable for the consequences of their behavior. If an at-fault driver is killed in a crash, their insurance company and estate may be held civilly liable for injuries caused to other drivers involved in the crash. Florida law does not require motorists to obtain bodily injury liability coverage, however, most drivers do so. Because not all drivers in the state have liability converge, we recommend drivers obtain coverage for uninsured/underinsured on their own policies.

Orlando Test Drive Ends Tragically Ends in Woman’s Death

Published on: January 1, 2023 | by Friedman, Rodman & Frank, P.A.

When a prospective car purchaser wants to try out a vehicle and go for a test drive, it can sometimes become a dangerous situation. Test drivers may not have experience driving the type of vehicle that they are trying out. Furthermore, the experience of test driving a vehicle can be distracting, as the driver is often trying to evaluate the car quickly, while performing a test drive that may include a dealership representative in the vehicle, further increasing the distraction. Last month, an Orlando test drive turned deadly when a prospective car purchaser was struck by another vehicle while entering the dealership upon completing the test drive.

According to a local news report discussing the accident, an elderly couple visited an Orlando dealership last month to test drive a Nissan SUV. The 86-year-old husband was driving the vehicle, his 76-year-old wife was in the passenger seat, and a dealership representative was riding in the back seat. When the driver attempted to make a left turn back into the dealership, he did so into the oncoming path of another SUV, which struck the Nissan near the front passenger side, causing the SUV to roll over onto its side. Emergency crews responded to the scene, where the 76-year-old woman was declared dead. The husband suffered minor injuries, and the dealership representative was not injured in the crash. According to the news report, all people involved in the accident were wearing seatbelts at the time of the crash.

As drivers get older, their driving abilities generally diminish with time. It can be tough for authorities and the family members of aging drivers to assert that the driver may no longer be able to safely operate a vehicle. Florida has enacted the “GrandDriver program” to offer resources and support (as well as additional rules) for drivers over 80 years old and their families. Florida drivers over 80 years old must renew their license every 6 years (compared to every 8 years for younger drivers), and pass a Mature Driver Vision Test at an approved location. These additional rules have been enacted to help mitigate the dangers of allowing aging drivers to retain their driving privileges.