Car Accident

Court Discusses “Drug and Alcohol Defense” in Recent Florida Motorcycle Accident Case

Published on: April 12, 2019 | by Friedman Rodman Frank & Estrada, P.A.

Last month, a state appellate court issued an opinion in a Florida motorcycle accident case discussing the “drug and alcohol defense” which, in certain situations, can completely preclude a plaintiff’s ability to recover for their injuries after a serious accident.

Under Florida’ comparative fault system, even a plaintiff who is partially at fault can recover for their injuries. In these situations, the court would first determine the appropriate amount of damages the plaintiff sustained as a result of the accident and then reduce the actual damages award by the plaintiff’s own percentage of fault.

The drug and alcohol defense is an exception to this general rule. Under Florida Statutes section 768.36, a plaintiff cannot recover for their injuries if the defendant can establish that the plaintiff was 1.) “under the influence of any alcoholic beverage or drug to the extent that the plaintiff’s normal faculties were impaired,” or that the plaintiff’s blood-alcohol content was .08 or greater, and 2.) “as a result of the influence of such alcoholic beverage or drug the plaintiff was more than 50 percent at fault for his or her own harm.”

Florida Court Considers Notice Requirement in Bad-Faith Claim against Insurance Company

Published on: March 28, 2019 | by Friedman Rodman Frank & Estrada, P.A.

Earlier this month, a state appellate court issued a written opinion in a Florida car accident case discussing whether the plaintiff’s claim that her insurance company acted in bad faith should be permitted to proceed towards trial. Ultimately, the court held that although the insurance company eventually made payment under the plaintiff’s policy, the payment was too late. Thus, the court permitted the plaintiff’s case to proceed.

Bad-Faith Claims Against Insurance Companies

Under Florida law, insurance companies must provide timely payment to policyholders. If an insurance company does not make payment on an insured’s claim, the insured can pursue a bad-faith claim against the insurer. However, before this type of claim can be pursued, the insured must file a civil remedy notice (CRN), giving the insurance company 60 days to respond and cure the bad faith.

The Facts

In its opinion, the court explained that the plaintiff and another driver was involved in a Florida car accident in the summer of 2013. For the purposes of this opinion, it was agreed that the plaintiff was not at fault. Both the plaintiff and the at-fault driver were insured by the same insurance company. Because the plaintiff’s injuries were serious and exceeded the coverage limits of the at-fault driver’s policy, the plaintiff filed a claim under the at-fault driver’s policy as well as her own underinsured motorist (UIM) policy.

The Rear-End Collision Presumption Under Florida Personal Injury Law

Published on: March 18, 2019 | by Friedman Rodman Frank & Estrada, P.A.

Typically, when a Florida car accident victim files a case against another driver, they must establish that the defendant’s conduct was negligent and that their negligence caused the plaintiff’s injuries. However, under certain circumstances, the law imposes what is called a presumption of negligence. A “presumption” allows for a judge or jury to conclude a fact based on the surrounding circumstances unless it can be shown by greater evidence that the presumption should not apply.

One example of a legal presumption in Florida personal injury law is the rear-end collision presumption. In Florida rear-end collisions, without any additional showing, the rear driver is presumed to have been negligent. However, that does not necessarily mean that the rear driver’s negligence was the sole cause of the accident. A recent case illustrates how Florida courts apply the rear-end collision presumption.

The Facts of the Case

According to the court’s recitation of the facts, the plaintiff was rear-ended by the defendant as she was driving on a Florida highway. The plaintiff and defendant offered differing versions of the events leading up to the accident; however, the defendant admitted that he could have avoided the accident had he not been following so closely.

Holding a Florida Employer Responsible for the Negligence of an Employee

Published on: March 14, 2019 | by Friedman Rodman Frank & Estrada, P.A.

An important consideration in any Florida personal injury case is whether a plaintiff will be able to collect on a judgment if they are successful at trial. For example, the financial and emotional expense of taking a case to trial against a defendant who does not have sufficient assets to cover a judgment may not make sense. Thus, it is essential that Florida personal injury victims name all potentially liable parties.

In many cases, this means naming the employer of the at-fault party as a defendant. Generally speaking, employers have more substantial assets than employees, and they may also have higher-limit insurance policies making collecting on a judgment much less of a headache for a successful plaintiff.

In Florida, an employer may be liable for the negligent acts of an employee, even if the employer was not negligent in causing the accident. This is referred to as vicarious liability. Of course, employers cannot be named in every Florida personal injury accident. In Florida, to establish that an employer is liable for the negligent acts of an employee, the plaintiff must show that the at-fault employee was acting within the scope of his employment at the time of the accident and that he was “engaged in his master’s business.” A recent state appellate decision illustrates how courts view vicarious liability claims.

Florida Personal Injury Cases Against the Federal Government Are Not Subject to Minority Tolling

Published on: March 4, 2019 | by Friedman Rodman Frank & Estrada, P.A.

One of the most common concerns among Florida personal injury victims is when they must file their claim. Typically, all personal injury claims must be brought within a certain amount of time, which is outlined in the statute of limitations. However, the rules differ when cases name state or federal government entities. Recently, a federal appellate issued a written opinion discussing whether a claim brought under the Federal Tort Claims Act is tolled while the plaintiff is a minor.

The Accident

According to the court’s opinion, when the plaintiff was five years old, his father was killed in a car accident on an interstate highway. The plaintiff’s mother filed a timely administrative claim with the Federal Highway Administration (FHWA) claiming that a highway barrier that had failed during the accident was not adequately tested or approved for use. Five years after the accident, and while the plaintiff was still a minor, the plaintiff’s mother filed a personal injury case against the FHWA in federal district court on behalf of the plaintiff.

The Federal Tort Claims Act

Generally, the federal and state governments are immune from tort liability. However, under the Federal Tort Claims Act (FTCA), specific lawsuits can be brought against the U.S. government and its subdivisions. To bring such a lawsuit, plaintiffs must comply with strict procedural requirements. Among these requirements is a two-year statute of limitations.

Florida Court Determines Residential Community Is Not Liable for Car Accident Allegedly Caused by Dangerous Parking Policy

Published on: January 15, 2019 | by Friedman Rodman Frank & Estrada, P.A.

Earlier this month, a state appellate court issued a written opinion in a Florida car accident case discussing whether a private residential community could be held liable for the injuries sustained by motorists who were involved in a collision within the community. Ultimately, the court concluded that any alleged negligence of the community was not the proximate cause of the car accident, and thus the plaintiff’s case was dismissed.

The Facts of the Case

According to the court’s opinion, the plaintiffs were driving through a residential community when another motorist rear-ended them. Evidently, the plaintiffs’ vehicle had come to a stop to allow oncoming trucks to pass through a narrow area of the road where there were cars parked on both sides of the street. As the plaintiffs waited for the vehicles to pass, they were rear-ended.

The plaintiffs filed a Florida personal injury lawsuit against the motorist that struck their vehicle as well as the residential community. In support of their claim against the residential community, the plaintiffs cited a city code that prohibited parking on both sides of the street. Apparently, when the community was first created parking was only permitted in the driveways of residents’ homes; however, after discovering that this policy resulted in a severe parking shortage, the community allowed parking on both sides of the street. The plaintiffs claimed that by allowing residents to park on both sides of the road in violation of the city ordinance, the residential community was partially responsible for the accident.

Court Discusses Permissible Scope of Liability Release Waiver in Recent Florida Car Accident Case

Published on: January 11, 2019 | by Friedman Rodman Frank & Estrada, P.A.

Recently, a state appellate court issued a written opinion in a Florida car accident case requiring the court to determine if a liability release waiver signed by the plaintiff prevented her from pursuing a case against the defendant. Ultimately, the court concluded that the scope of the release waiver did not include the specific type of claim brought by the plaintiff.

The Facts of the Case

According to the court’s written opinion, the plaintiff was run over by a pick-up truck while she was attending a race at the Daytona International Speedway. Evidently, before the accident, employees of the speedway instructed the tow-truck driver to back the truck up into the area where the plaintiff was standing.

As a condition of allowing the plaintiff into the raceway, the racetrack asked that she sign a release of liability waiver. In essence, that waiver stated that the plaintiff acknowledged that there were dangers associated with standing on or near the raceway and that she agreed not to pursue any claims if she was injured due to “any negligent” actions of the defendant.

Florida Court Explains the Limits on Circumstantial Evidence in Recent Car Accident Lawsuit

Published on: December 27, 2018 | by Friedman Rodman Frank & Estrada, P.A.

In a recent state appellate decision, a Florida court upheld a jury’s verdict in favor of a plaintiff who was seriously injured after being rear-ended by a van while stopped in traffic on the Buckman Bridge. The case required the court to determine whether the plaintiff’s case improperly relied upon the stacking of multiple inferences in light of the fact that the plaintiff’s evidence was circumstantial in nature. Ultimately, the court determined that the plaintiff’s claim was not reliant upon the improper stacking of inferences and affirmed the jury’s verdict in favor of the plaintiff.

Circumstantial Evidence

There are two types of evidence: direct and circumstantial. Direct evidence is evidence that tends to prove a conclusion without the need for any inference. For example, eyewitness testimony that a driver made a lane change without signaling would be considered direct evidence that the driver changed lanes and did not signal.

On the other hand, circumstantial evidence requires at least one inference to be made before reaching a conclusion. Circumstantial evidence is also known as “smoking gun” evidence. For example, if a man is shot and turns around only to see a woman with a smoking gun in her hand, the man’s observations are circumstantial evidence that the woman shot him. It is not direct evidence because he did not see the woman pull the trigger. However, it can be inferred that the fact the gun was smoking means that it was recently fired.

Court Dismisses Appeal Based on Plaintiff’s Failure to Object at Trial, Illustrating Importance of Properly Preserving Issues in Florida Personal Injury Cases

Published on: December 18, 2018 | by Friedman Rodman Frank & Estrada, P.A.

Recently, a state appellate court issued a written opinion in a personal injury case illustrating the importance of taking all steps to properly preserve any issues a party believes a judge decided wrongly in a Florida personal injury case. In this case, the court ultimately dismissed the plaintiff’s appeal because she failed to make a timely objection.

The Facts of the Case

According to the court’s opinion, the plaintiff was rear-ended by the defendant and subsequently filed a personal injury lawsuit against the defendant. Before trial, the plaintiff filed several proposed jury instructions, including an instruction on the doctrine of negligence per se. The case proceeded to trial, and before sending the jury back to deliberate, the judge held a charging conference where the judge discussed how he would instruct the jury and hear arguments from counsel about proposed charges.

Evidently, the charging conference was not memorialized. At the conclusion of the conference, the judge determined the instructions would not include the plaintiff’s proposed instruction on negligence per se. The judge asked the parties if they had anything to add, to which the plaintiff’s attorney responded: “I have no issues with the charge, Your Honor.” The jury was instructed accordingly, and then returned a verdict in favor of the defendant.

Court Declines to Impose Duty on Landowner to Trim Trees Near Intersection

Published on: November 29, 2018 | by Friedman Rodman Frank & Estrada, P.A.

In a recent personal injury opinion, a state appellate court rejected a plaintiff’s claim against the defendant landowner that was based on the landowner’s failure to trim trees that the plaintiff claimed blocked the view of oncoming traffic. The case presents an interesting issue for Florida car accident plaintiffs because it illustrates the concept of landowner liability in a Florida personal injury case. Additionally, given the court’s unique concerns that may not apply in Florida, it is possible that the case may have been decided differently by a Florida court.

The Facts of the Case

According to the court’s opinion, the case arose from a fatal accident that occurred at a rural intersection of two gravel roads. There were no road signs at the intersection. The plaintiff approached the intersection at the same time as another motorist, and the two vehicles collided.

Evidently, a post-accident investigation by law enforcement determined that neither of the drivers had applied the brakes or attempted to avoid the collision. Also, one law enforcement officer explained that it would have been impossible for the motorists to see the other approaching because the trees on the southeast corner of the intersection obscured the motorists’ vision.