Car Accident

The Applicability of the Set-Off Defense in Florida Car Accident Claims

Published on: July 29, 2020 | by Friedman, Rodman & Frank, P.A.

In a recent opinion, an appellate court in Florida addressed the applicability of the set-off defense after a car accident victim filed a claim for damages with an insurance company. The plaintiff suffered injuries when an uninsured motorist crashed into his car, resulting in serious physical and property damage to the plaintiff. In response, the plaintiff filed a claim with his insurance company under the uninsured/underinsured (UIM) provision in his policy. The insurance company denied the claim, and the plaintiff filed a lawsuit for breach of contract.

A jury determined that the plaintiff was entitled to damages for his loss of earnings, medical expenses, and pain and suffering. Subsequently, the insurance company contended that the trial court erred in failing to set off duplicated benefits that the plaintiff obtained from other sources. The defendant asked the court to set off from the damages award, the amount of any settlements the victim received that duplicated any part of the verdict.

The court analyzed Florida’s set-off rules and concluded that the trial court should amend the verdict to reflect the duplication. After a car accident, injury victims may obtain benefits from more than one source for a single accident or claim. This often occurs when the negligent motorist or their insurance company settles or pays out damages for a portion of the victim’s losses. In most cases, the settlement amount specifies what exactly the payout covers. For example, the settlement amount may specify that the payments are for medical benefits or lost wages. Although, Florida’s laws allow double recovery, there are restrictions when there is a duplication of benefits.

The Good Samaritan Act and Its Effect on Florida Personal Injury Claims

Published on: July 15, 2020 | by Friedman, Rodman & Frank, P.A.

Under Florida law, a person who suffers injuries because of a negligent healthcare professional may be able to recover for their damages. However, the plaintiff must meet specific requirements to succeed on their claim. Specifically, a plaintiff must establish that the healthcare provider had a legal duty to provide the appropriate care, that they breached that duty, and they suffered damages as a result of the defendant’s breach. To establish the “breach” element of a claim, plaintiffs must show that the healthcare provider’s conduct fell below the prevailing professional standard of care for a similarly situated provider.

Some healthcare providers try avoiding liability by evoking the Florida Good Samaritan Act (the Act). The Act protects some healthcare practitioners from liability when they are providing necessary emergency care. The Act covers physician assistants, nurses, and other professionals who provide emergency care. In these cases, the emergency provider may not be liable for civil damages if the claim stems from their emergency care or treatment, if another reasonably prudent person would have acted similarly. The law extends coverage, even if the patient did not receive treatment through an emergency room. However, plaintiffs can recover if they prove that the provider exhibited reckless disregard in their care, such that they knew or should have known that their behavior would create an unreasonable risk of injury or harm. Additionally, the Act may not apply when there are questions regarding whether the patient was receiving emergency medical treatment.

Recently, a state appellate court issued an opinion addressing issues that often arise in Florida accident claims. In that case, the plaintiff suffered severe bodily injuries when an ambulance driver ran a red light and slammed into the plaintiff’s car. The ambulance was transporting a patient after he had undergone dialysis. The plaintiff argued that the ambulance driver was not carrying a patient during an emergency situation, and he was not using his lights or siren when he ran the red light. The defendant argued that they were immune under the state’s medical provider immunity act, and they did not engage in willful or wanton conduct. The plaintiff argued that merely operating an ambulance for non-emergency transport is not covered by the state’s act. Ultimately, the court found that the ambulance driver’s actions in driving and running a red light during a non-emergency event were not integral to providing care. Therefore, the court affirmed that the ambulance driver was liable for the plaintiff’s injuries.

The Implication of Voluntary Intoxication in Florida Third-Party Personal Injury Claims

Published on: June 25, 2020 | by Friedman, Rodman & Frank, P.A.

The First District Court of Appeal in the State of Florida recently reviewed a trial court’s order denying a manufacturer a directed verdict in a Florida wrongful death claim. According to the court’s opinion, the company manufactured products containing a synthetic marijuana product, commonly known as “spice.” A warning was contained in the product that indicated it was unsafe for consumption by humans. A man purchased the product voluntarily consumed it, subsequently became impaired, and then drove his car into another vehicle. The man was sentenced to prison for his criminal conduct. The decedent’s representatives filed a wrongful death lawsuit against the manufacturer, arguing that the company was liable for their family member’s death.

At trial, the company filed a directed verdict motion and argued that they were not proximately liable for the death because the man’s intoxication was the sole cause of the decedent’s death. The trial court denied the motion, and the jury found in favor of the plaintiffs, attributing 65% of the fault to the company and 35% fault to the intoxicated driver. The company appealed the ruling arguing, again, that the impaired man’s criminal conduct was the sole proximate cause of the plaintiff’s injuries.

Proximate cause is a legal theory that imputes liability on a party when their actions set forth a sequence of events that led to an injury. Under Florida law, questions regarding proximate cause are left to the fact-finder; however, in some situations, a judge may address the issue where evidence suggests there is no more than one inference. Moreover, the Florida Supreme Court has found that when an actor’s behavior creates a dangerous situation, the law does not permit a jury to find a proximate cause where an unforeseeable, intervening act is responsible for the injuries. In some cases, plaintiffs may argue that third parties that create a dangerous situation could reasonably foresee that their negligence could set a chain of events in a motion that may result in injuries. However, Florida does not allow a jury to consider proximate cause in cases where the person responsible for the injuries is voluntarily impaired or purposely misuses a product.

What Is “Stacking” Under Florida Insurance Law?

Published on: May 20, 2020 | by Friedman, Rodman & Frank, P.A.

Florida has one of the highest rates of car accidents involving uninsured or underinsured (UIM) drivers in the country. Car accidents with drivers without appropriate insurance can have long-term medical and financial consequences on a car accident victim, and Florida drivers must protect themselves.

Florida requires that motorists maintain two types of auto insurance, personal injury protection (PIP), and property damage liability (PD). Florida’s designation as a “no-fault” state means that a motorist’s PIP coverage will cover covert medical expenses up to $10,000, without consideration of fault. However, Florida does not require motorists to carry bodily injury coverage; this coverage pays expenses the other party incurs because of an accident. The only time this does not apply is if the responsible driver has been convicted of DUI.

In response to these potentially devastating situations, Florida insurance law requires insurance companies to offer motorists the option to purchase UIM coverage. Thus, although UIM coverage is not mandatory, insurance companies must offer coverage to policyholders. The insurance protects the insured if they are involved in an accident with another motorist who does not have any or enough bodily injury insurance. However, policyholders must understand that UIM coverage is only an option if they carry bodily injury coverage in an amount higher than the UIM coverage. Florida’s minimum bodily injury coverage is $10,000 per person and $20,000 per occurrence.

Court Finds Florida County Is Not Entitled to Summary Judgment in Recent Bike Accident Case

Published on: April 13, 2020 | by Friedman, Rodman & Frank, P.A.

Florida biking accidents are a common cause of serious injuries in the state. In fact, the cyclist death rate in Florida is over 50% higher than in surrounding states. Miami leads the list of the Florida cities with the highest fatality rates. Bikers, motorists, and pedestrians must take special precautions while operating their vehicles or walking in roadways. Individuals who have been involved in a Florida bike accident should contact an experienced injury attorney to discuss their rights and potential remedies.

Late last month, an appellate court issued an opinion in a plaintiff’s appeal of summary judgment in favor of a county in a Florida negligence lawsuit. The biker filed a lawsuit after he suffered injuries when he lost control of his bike and fell into a drainage ditch. In his lawsuit, he alleged that the county had actual or constructive notice of the ditch. The country argued that it was not liable for the biker’s injuries because the plaintiff did not establish the element of causation.

According to the court’s opinion, the biker could not remember the exact moments right before falling into the ditch. However, the biker recalls that he was heading west when he approached the intersection and noticed a car stopped on the northbound lane. The plaintiff attempted to proceed south, but he did not know what the car was going to do, so he tried to go around the corner and stay on the shoulder. However, he was then struck by a vehicle and blacked out for several hours.

Florida Court Discusses Liability When a Vehicle Owner Lets Another Use Their Car

Published on: April 9, 2020 | by Friedman, Rodman & Frank, P.A.

Those who have experience dealing with a Florida insurance company, know the process can be a difficult one. Earlier this month, a state appellate court issued a written opinion in an insurance dispute case arising from a fatal Florida car accident. The case illustrates the difficulties that many accident victims face when attempting to recover for their injuries through either a Florida personal injury or a wrongful death lawsuit.

According to the court’s opinion, a driver caused a fatal accident while using his step-father’s vehicle. At the time of the accident, the driver had his step-father’s permission to use the vehicle. There were several insurance policies in effect at the time of the accident. Specifically, the driver had three policies with three different insurance companies, one of which was with Geico. In addition, the driver’s step-father had a policy with Allstate.

Allstate paid out $250,000 to the plaintiffs, which was the policy maximum. Pursuant to that agreement, the $250,000 was not an agreement to release the driver of all liability, but would offset any other recovery obtained by the plaintiffs.

Florida Appellate Court Discusses Whether Motorist Has a Duty to Install Trailer Brakes

Published on: March 13, 2020 | by Friedman, Rodman & Frank, P.A.

Last month, a state appellate court issued a written opinion in a Florida pedestrian accident case involving a pick-up truck that struck a woman who was standing on the side of the road waiting for a bus. Specifically, the court was asked to determine whether the owner of the pick-up truck had a duty to install brakes on the trailer that was being towed. Ultimately, the court concluded that such a duty may exist, depending on the surrounding circumstances, but remanded the case to the lower court to make the determination.

According to the court’s opinion, the plaintiff was standing on the side of the road, waiting for a bus with her grandchildren when she was struck by a pick-up truck towing a trailer. The driver of the pick-up truck was the daughter of the truck’s owner, who had loaded the truck in preparation for the trip. However, before leaving, the owner of the truck did not feel well and asked his daughter to make the trip. The trailer was overloaded and did not have brakes installed.

As the owner’s daughter was driving, the traffic in front of her suddenly stopped. She applied the brakes in an attempt to safely come to a stop. However, as the owner’s daughter approached the traffic ahead of her, she realized she wasn’t going to stop in time. She swerved onto the shoulder to avoid stopped traffic, but struck the plaintiff.

Importance of Florida Uninsured Underinsured Motorist Coverage

Published on: February 27, 2020 | by Friedman, Rodman & Frank, P.A.

Florida motorists must purchase automobile insurance that provides at least $10,000 in personal injury protection (PIP) and $10,000 in property damage. PIP coverage is a no-fault coverage that provides compensation to motorists and qualified family members for certain accident-related medical expenses. Florida is a no-fault state, and insurance companies cover their policyholders in an accident. However, the law does not require motorists to purchase insurance to protect themselves when they are negligent. When someone is involved in an accident with a driver that does not have adequate protection, the victim may face significant challenges recovering for their losses.

To avoid potential significant financial burdens, motorists should purchase uninsured/underinsured motorist (UIM) protection. Unlike several other states, Florida automobile insurance laws do not require motorists to purchase uninsured/underinsured motorist (UIM) protection; however, this coverage provides drivers, their passengers, and household family members, with additional financial security.

UIM protection is useful in cases where motorists are involved in an accident with an at-fault driver with inadequate insurance coverage. Further, this coverage protects policyholders in hit-and-run accidents, unknown vehicle collisions, or if the policyholder or their family members suffer injuries as a pedestrian or cyclist.

Jury Awards Plaintiff $1 Million Verdict Against Insurance Company

Published on: February 20, 2020 | by Friedman, Rodman & Frank, P.A.

Car accidents can leave injured motorists, passengers, and pedestrians with substantial property damage, physical injuries, and psychological trauma. After seeking medical attention, one of the first steps a Florida car accident victim should take is to file a claim with the at-fault driver’s insurance company. Many Floridians assume that insurance companies operate swiftly and fairly; however, this is often far from the truth.

In most instances, car accident victims will attempt to recover damages from the at-fault party or their insurance company. This requires filling out lengthy forms, providing detailed information, and explicitly requesting appropriate compensation. Insurance companies rarely agree to the amount the victim claims and will either counteroffer, deny, or even delay deciding the clam. If an insurance company is engaging in unlawful practices or countering an inadequate amount, injury victims should contact an attorney to file a complaint

To initiate a lawsuit against an insurance company, potential plaintiffs should file a complaint in court. Attorneys can assist the plaintiff in including all relevant and pertinent details, including a demand for damages. During pre-trial pleadings, both parties will have the opportunity to file motions to support their claims. If the case survives pre-trial proceedings, the parties will then engage in discovery and then trial.

Sudden Emergency Doctrine and Other Affirmative Defenses in Florida Car Accident Lawsuits

Published on: February 18, 2020 | by Friedman, Rodman & Frank, P.A.

Under Florida’s personal injury laws, individuals who suffer injury because of a negligent driver may be able to recover for their losses through a Florida car accident lawsuit. However, these cases are rarely straight forward, and plaintiffs must ensure that they understand the evidentiary and procedural requirements they must follow. In addition to fact and evidence disputes, plaintiffs must anticipate and refute any defenses that the defendant may present.

There are three main types of defenses in Florida car accident claims that, if successful, can defeat liability. These defenses are, assumption of the risk, contributory negligence, and force of nature or unexpected loss of capacities. To overcome these defenses, plaintiffs must be able to pierce the evidence that the defendant presents.

The assumption of risk defense reduces a plaintiff’s right to recover when the defendant establishes that the plaintiff voluntarily and knowingly assumed the risks of the dangerous activity that led to their injuries. Plaintiffs must present evidence that they did not know there was a risk of the same type that they suffered, or that they did not voluntarily take on the danger. Defendants may also argue that the plaintiff somehow contributed to their injuries and subsequent damages, and therefore their recovery should be reduced by their level of fault. To avoid a significant reduction of compensation, plaintiffs must be able to show that their behavior did not contribute to their damages. Finally, some defendants argue that an unexpected loss of capacity or other force of nature led to the plaintiff’s injuries. This defense typically requires a defendant to prove that the behavior giving rise to the incident was unanticipated, exceptional, unavoidable, or related to a grave natural disaster or phenomena.