Car Accident

Florida Appeals Court Refuses to Order Neurological Exam Absent Good Cause in Negligence Case: Gray v. Richbell

Published on: July 11, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In Gray v. Richbell, a woman was killed when her automobile was rear-ended by another car as she passed a tractor-trailer. The force of the impact apparently caused the woman to lose control of her vehicle and drive into oncoming traffic, where she collided head-on with a truck. Following the fatal motor vehicle accident, the woman’s parents filed a negligence lawsuit against the driver of the truck. According to the woman’s family, the driver negligently failed to avoid the deadly crash. In their complaint, the woman’s parents also claimed that the driver’s age and health contributed to the wreck.

During discovery, an accident reconstruction expert for the parents apparently determined the truck driver caused the fatal crash without actually viewing his medical records. Later, however, the woman’s family was provided with a copy of the driver’s medical records and the opportunity to depose his doctor. Next, the parents asked the trial court to compel the truck driver to submit to a neurological examination. The man objected by stating the woman’s parents failed to demonstrate good cause for the exam as required by the Florida Rules of Civil Procedure. About one week before trial, a judge held a hearing on the matter and ordered the driver to submit to the examination. Since the neurological examination order was issued only one week prior to trial, the truck driver asked Florida’s Fourth District Court of Appeals to review the case and filed a petition to overturn the trial court’s order.

The appeals court granted certiorari in the case because the discovery order was one that could cause “material injury” to the truck driver, and there would be “no adequate remedy on appeal.” The court then examined the requirements of Rule 1.360 of the Florida Rules of Civil Procedure. According to the Fourth District, the rule allows one party to request a medical examination of another only with good cause and where there is a controversy regarding the purported medical condition being examined. Next, the court stated the truck driver’s conduct was the only issue in the case and said the driver’s health was not material to the question of whether or not he committed a negligent act that ultimately led to the traffic collision. Since the woman’s parents failed to demonstrate good cause for their request, Florida’s Fourth District Court of Appeals granted the truck driver’s petition to prevent a court-ordered neurological examination of him.

Florida Appeals Court Affirms Workers’ Compensation Benefits for Sheriff’s Deputy Injured in a Semi-Truck Crash While Commuting: Levy County Sheriff’s Office v. Allen

Published on: July 9, 2014 | by Friedman Rodman Frank & Estrada, P.A.

Florida’s First District Court of Appeal has affirmed an order granting workers’ compensation benefits to a sheriff’s deputy who was hurt on his way to work. In Levy County Sheriff’s Office v. Allen, a deputy employed by the Levy County Sheriff’s Office for more than 41 years was traveling to work in his personal vehicle when he came upon a stalled semi-truck that was partially blocking one lane of a highway during the early morning hours. Due to the purported unsafe condition, the deputy stated he decided to stop and direct traffic around the big rig despite that he was assigned to provide security services at a local courthouse. The man testified that he also intended to call for additional law enforcement officers to assist him in removing the large vehicle from the highway. Unfortunately, the deputy was unable to stop his vehicle before striking the semi-truck. As a result of the unfortunate collision, the deputy apparently sustained significant personal injuries. At the time of the accident, the deputy was wearing his uniform and carrying both his assigned badge and weapon on his person.

Following the injury accident, the Levy County Sheriff’s Office workers’ compensation insurance carrier refused to pay any benefits to the deputy related to his accident injuries. According to the employer-insurer, the man’s harm did not result from his job duties because he was hurt while commuting to work. In addition, the carrier claimed the man’s harm did not arise out of his employment because his primary work assignment was to provide courthouse security services.

At an evidentiary hearing, both the deputy and several co-workers offered testimony stating Levy County Sheriff’s Office policy requires all deputies to address any obvious safety hazards whether or not they are currently on duty. According to a Judge of Compensation Claims, the deputy’s security assignment did not relieve him of his duty to resolve dangerous conditions such as that posed by the tractor-trailer. Also, the judge found that the man’s injury occurred while he was performing one of his primary job duties. Finally, the judge held that the deputy was “acting within the course of his employment” under Section 440.091(1) of the Florida Statutes. Because of this, the judge ordered that the man’s injury accident was compensable. The employer-insurer then appealed the judge’s decision to Florida’s First District Court of Appeal.

Federal Court in Tampa Remands Bad Faith Auto Insurance Case Back to Pinellas County Court

Published on: July 2, 2014 | by Friedman Rodman Frank & Estrada, P.A.

The United States District Court for the Middle District of Florida in Tampa has remanded a personal injury and bad faith automobile insurance case back to state court. In Hall v. State Farm Mutual Automobile Insurance Co., a woman filed a lawsuit in Pinellas County Circuit Court against her automobile insurance company following a collision with an uninsured motorist. In her complaint, the woman asked the court to award her at least $15,000 in damages related to personal injuries she sustained in the traffic wreck. She also accused her motor vehicle insurer of bad faith. After the woman’s lawsuit was filed, the insurance company removed the case to federal court based upon diversity jurisdiction. The woman responded by filing a motion to remand the case back to state court.

Federal law allows defendants in a lawsuit to remove a case to federal court for a number of reasons, including diversity jurisdiction. In order to establish diversity, the parties to a lawsuit must hail from different states and the amount in controversy must exceed $75,000. Because a plaintiff normally selects his or her desired venue when a lawsuit is filed, a defendant will bear the burden demonstrating that diversity jurisdiction exists. In general, a federal court is required to construe the facts of a case in which diversity jurisdiction is disputed in favor of remand.

According to the plaintiff in the case, the auto insurer failed to establish that the amount in controversy meets or exceeds the statutory requirements. Because of this, the woman argued the federal court lacks subject matter jurisdiction over the dispute. The insurer countered by claiming a demand letter the plaintiff submitted to the insurer several months before that sought to recover the entirety of her $300,000 automobile insurance policy limits establishes that the she seeks to recover more than $75,000. The Middle District of Florida stated although a settlement offer may be relevant in ascertaining the amount in controversy in a diversity jurisdiction dispute, it is not determinative. Because the woman’s demand letter failed to allege her specific damages and the insurer’s settlement offer of only $12,500 supported the plaintiff’s contention that the amount in controversy was well below $75,000, the federal court ordered that the case be remanded back to Pinellas County.

Limits on Expert Examination at Issue in Unique South Florida Auto Crash Case: Goicochea v. Lopez

Published on: June 26, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In Goicochea v. Lopez, a South Florida woman sued several motorists for injuries she allegedly incurred during three separate motor vehicle collisions that took place between July 2007 and January 2009. According to the woman, the combined lawsuit was necessary because her injuries were so related that it was impossible to reliably apportion damages from each crash. A defendant driver from the second accident asked the purportedly injured woman to submit to examination by a particular doctor of his choosing, pursuant to Florida Rule of Civil Procedure 1.360(a)(1)(A). Later, defendants from the first automobile accident requested that the plaintiff submit to an exam performed by a different physician under the same rule. The woman instead sought a protective order that would limit the number of expert examinations she was required to submit to. After the trial court granted her motion, one of the defendants asked Florida’s Third District Court of Appeals to overturn the lower court’s decision.

According to the defendant, the trial court’s decision to limit expert testimony was erroneous and would subject him to harm that could not be repaired on appeal. The appellate court agreed and stated that, unlike the case law relied upon by the trial court, the defendant did not ask the plaintiff to submit to multiple expert examinations related to the same cause of action. Instead, three unrelated defendants with adverse interests were being sued at the same time. The court said the injured woman’s allegations forced each defendant to demonstrate his or her own purported negligence was not the source of the plaintiff’s harm. Florida’s Third District stated the trial court’s limit departed from the “essential requirements” of the law and caused each of the defendants irreparable harm. Because of this, the appeals court overturned the trial court’s ruling that the plaintiff was required to submit to examination by only one expert physician.

In the State of Florida, an individual who was hurt in a motor vehicle or other personal injury accident must prove the person or entity that caused his or her injury had a legal duty to exercise reasonable care, failed to do so, and their harm resulted from that failure. For example, a driver has a duty to obey traffic signs and laws. If a motorist speeds excessively and hurts a pedestrian, bicyclist, or another driver in a traffic wreck, he or she likely committed negligence. Depending upon the facts of each situation, proving negligence can be difficult, and establishing the proper evidence at trial is absolutely vital. A skilled South Florida personal injury attorney can help.

Florida Car Accident Case Analyzes Extended PIP Policy Limits: Spaid v. Integon Indemnity Corp.

Published on: June 23, 2014 | by Friedman Rodman Frank & Estrada, P.A.

A Florida appeals court has ordered an automobile insurer to pay all of a car accident victim’s medical expenses pursuant to the terms of the extended personal injury protection (PIP) provision included in her policy. In Spaid v. Integon Indemnity Corp., a woman asked her auto insurer to pay more than $10,000 in medical bills for the injuries she suffered in a 2011 motor vehicle wreck. Although asked to pay all of her medical expenses, the woman’s insurer refused to pay for any medical costs that exceeded her basic PIP policy’s $10,000 limit of liability. In response, the woman filed a lawsuit seeking a declaratory judgment against her automobile insurer.

In Florida, motorists are required to maintain $10,000 in PIP accident protection. This insurance allows a driver or other individual to collect up to $10,000 in immediate medical coverage, depending on the type and extent of car accident injury treatment, regardless of fault. Under current Florida law, an individual who was harmed in an automobile collision must seek medical treatment within 14 days of the crash in order to recover under a PIP policy. Typically, a PIP policy will pay for 80 percent of an accident victim’s medical bills up to the policy’s limit of liability. An optional extended PIP policy will normally increase that coverage to 100 percent of an insured’s medical expenses. The question in this case was whether or not the woman’s extended PIP policy incorporated her basic PIP policy’s $10,000 cap.

Before a trial court, the insured woman claimed that the entirety of her medical expenses should be paid because the plain language of her extended PIP policy included no limit of liability. Instead, the declarations page stated “100% Medical,” on the extended PIP line. In contrast, the automobile accident policy expressly limited basic PIP to $10,000 for each person. Because of this, the woman argued the limits of her policy’s extended PIP were ambiguous. The insurance company claimed the optional extended coverage did not change the overall PIP limit of liability. In the end, the trial court sided with the insurer and the woman appealed her case to Florida’s First District Court of Appeal.

$1.1 Million Jury Award in Florida Auto Accident Case Upheld: Zelaznik v. Isensee

Published on: June 19, 2014 | by Friedman Rodman Frank & Estrada, P.A.

The Second District Court of Appeal in Lakeland has affirmed a damages award in a Florida car accident case. In Zelaznik v. Isensee, a woman was injured when her vehicle was rear-ended in an automobile wreck. Prior to trial, the driver who struck the woman’s vehicle apparently admitted fault for the crash but claimed she was not responsible for the woman’s physical harm. Following trial, a jury awarded the injured woman more than $1.1 million in damages. The at-fault driver and her insurance company then appealed the jury’s verdict to Florida’s Second District.

On appeal, the defendants argued the damages award should be overturned as a result of three evidentiary rulings made by the trial court. The defendants claimed that the testimony of an expert witness and a police officer were improperly excluded and a video of the injured woman’s surgery should not have been published to the jury. According to the appeals court, any error committed by the trial court with regard to the excluded testimony was harmless as the jurors were provided with the evidence by other witnesses and there was no reason to believe the jury would likely have returned a different verdict if provided with the testimony.

The Court of Appeal also disagreed with the defendants’ argument that the video was gruesome and only offered to inflame the jury. The court said relevance is the test for whether or not photographic evidence should be submitted to jurors in a trial. Still, Florida law states evidence that may result in confusion, unfair prejudice, or that might otherwise mislead a jury is not admissible. Because the trial judge viewed the 15 minute video excerpt for appropriateness prior to allowing jurors to view it and the defendants offered no evidence that the video was gruesome, the appellate court held there was no abuse of discretion regarding admission of the evidence. Since the trial court did not abuse its discretion and any evidentiary errors were harmless, the Second District Court of Appeal affirmed the jury’s verdict.

Florida’s Fifth District Court of Appeals Reverses Summary Judgment in Car Accident Case: Hubner v. Old Republic Insurance Co.

Published on: June 5, 2014 | by Friedman Rodman Frank & Estrada, P.A.

Florida’s Fifth District Court of Appeals has reversed a summary judgment order in a car accident case. In Hubner v. Old Republic Insurance Co., a volunteer for Boy Scouts of America repeatedly transported a potential Eagle Scout in his personal vehicle to a cemetery to participate in a clean-up event. Following the final stage of the clean-up event, the man apparently drove home to retrieve a camera in order to photograph the end result of the Boy Scout’s efforts. After the volunteer returned to the cemetery and took photos, he headed home. The volunteer made no stops on his way home from the cemetery. While en route, the man reportedly struck another vehicle head-on. Both the volunteer and the other motorist were allegedly severely harmed in the automobile accident.

At the time of the collision, the Boy Scouts of America maintained a liability insurance policy that covers the organization’s registered volunteers who are acting within the scope of their official duties. According to the insurance policy, such duties were defined quite broadly. The two men involved in the crash later filed a claim against the insurance company for damages related to their accident injuries. As part of a declaratory judgment action, the insurance company acknowledged that the man was a registered volunteer with the organization for approximately 55 years when the wreck happened but argued before a trial court that he was no longer acting within the scope of his duties as a volunteer when the injury accident occurred.

The insurance company next filed a motion for summary judgment. In order to prevail on a motion for summary judgment, a moving party like the insurance company is required to demonstrate that no material issue of fact exists and the party is entitled to judgment as a matter of law. The trial court granted the insurance company’s motion for summary judgment and the injured parties appealed the case to Florida’s Fifth District. Continue Reading ›

Employer Liability for Rental Car Accident in Florida

Published on: May 2, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case the Florida plaintiffs were injured in a car accident involving a rental car. The rental car was paid for by the employer Bell Partners and authorized for its employee to drive for business purposes. However, at the time of the accident it was driven by the employee’s husband.

The plaintiffs sued the employer under the dangerous instrumentality doctrine. It claimed that the employer was vicariously liable for authorizing and paying for the driver’s wife to rent the vehicle. The employer denied liability. It argued that it had not agreed to the employee’s husband driving the rental car and that its policy prohibited unauthorized drivers or personal use of company rental cars.

Both parties filed cross-motions for summary judgment. The driver’s wife frequently traveled for her employer who owned several senior living communities in multiple states.

Can a Florida Co-Owner of a Car Avoid Vicarious Liability for an Accident?

Published on: April 24, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case, the Florida Supreme Court answered a certified question on the question of whether a co-owner of a car could avoid vicarious liability by claiming he didn’t intend to be owner of the vehicle and had relinquished control to a co-owner. Robert Christensen paid for a Chrysler PT Cruiser in 2003, putting the title in both his wife’s name and his own name. Both signed the application under penalty of perjury to have the title paperwork list them as co-owners. They were in the process of divorcing.

The husband didn’t receive the certificate of title because it went to his wife. He did not have a key or use the vehicle, nor did he live with his wife, though title was in his name. About 22 months later, the wife negligently hit and killed a man while driving the car. The title was still in the name of both husband and wife as co-owners. The car was operated with the husband’s consent.

After the accident, the decedent’s wife Mary Jo Bowen sued for wrongful death against both Christensen and his wife. The plaintiff claimed that Christensen was vicariously liable for his wife’s negligent operation of the vehicle under the dangerous instrumentality doctrine. Christensen argued that he wasn’t vicariously liable. He later testified he had bought the car as a gift for his wife and wasn’t involved with the car after purchase.

Uninsured Motorist Coverage in Florida

Published on: March 24, 2014 | by Friedman Rodman Frank & Estrada, P.A.

Under section 627.727(1) of the Florida Statutes (2007), car insurers must offer uninsured motorist coverage unless an insured expressly rejects coverage. This includes coverage for an underinsured motor vehicle. This coverage is intended to protect those that are legally entitled to recover damages for injuries caused by uninsured or underinsured motorists.

In a recent case, the Florida Supreme Court weighed in on the question of whether an insured person forfeits benefits without regard to prejudice under an uninsured motorist insurance contract if he breaches a compulsory medical examination provision. It also answered the secondary question of who has the burden of pleading and proving prejudice.

The case arose out of a 2006 traffic accident involving Robin Curran and an underinsured motorist. Curran and the motorist settled their case and the settlement was approved by Curran’s insurer State Farm. Curran asked State Farm for her $100,000 underinsured motorist policy limits and offered to settle with State Farm if it tendered the policy limits by a specific date. The plaintiff noted her damages were actually about $3.5 million because she had reflex sympathetic dystrophy syndrome. State Farm tried to schedule a compulsory medical exam based on a provision of the policy requiring it.