Car Accident

Testifying in a Personal Injury Case in Florida

Published on: June 18, 2013 | by Friedman Rodman Frank & Estrada, P.A.

During trial, it can be difficult for some witnesses to control their emotions, particularly if they believe they’ve been wronged by the other side or their insurer. A recent personal injury case illustrates the importance of controlling one’s emotions in a trial setting, particularly if a judge has expressly ruled that a witness cannot talk about a specific subject.
In the case, the plaintiff was a driver of a car that had gotten rear-ended. She experienced injuries that required surgery. She sued the owners of the other car for damages, as well as her own uninsured motorist insurance carrier, State Farm. Liability was not contested at trial, but damages and causation were.

Before trial, the insurer filed a motion in limine to prevent any evidence from coming in about the insurer’s failure to follow its contractual obligations to the plaintiff. Motions in limine are filed to keep certain information out of the trial and away from the jury.

In this case, the insurer argued its failure to live up to its contractual obligations was irrelevant evidence and it was also inflammatory. The judge granted the motion to exclude the information. However, while testifying, the plaintiff had an outburst regarding the insurer’s failure to pay for her damages.

The insurer moved for a mistrial, arguing that the harm could not be undone. The judge denied the motion and asked the jury to disregard the testimony. The attorney for the other driver asked that the plaintiff’s attorney not be able to make any “bad insurance company” arguments. The plaintiff’s attorney agreed not to do so, but during closing arguments, he made several of these arguments.

Florida Personal Injury Case Involving False Testimony

Published on: June 11, 2013 | by Friedman Rodman Frank & Estrada, P.A.

In Florida, Rule 1.540(b)(3) covers the question of fraud or misconduct of an adverse party during a lawsuit. The rule is modeled on a federal rule of civil procedure. Fraud or misconduct “of an adverse party” can include misconduct by either the other party to the lawsuit or his or her attorney. For example, it occurs if a party asks a witness to testify falsely or where an attorney knowingly presents false testimony. It does not include a witness’ own independent fraud, even when such a fraud helps an adverse party’s case.

One type of motion that can be filed if it is discovered that an adverse party committed fraud or misconduct in a lawsuit is a motion for relief from judgment. If a motion for relief from judgment on the basis of fraud is filed, the judge must hold an evidentiary hearing to assess the credibility of the witnesses. Importantly, it is not enough to show a fraud occurred; the party raising the issue must show the other party or his attorney participated in the fraud or knowingly permitted the fraud to go forward.

In a recent car accident case, a motion for relief from judgment became an issue. The case arose from an accident in which the driver of a car was traveling about 35 miles per hour as a motorcycle was waiting to turn left. According to the motorcycle driver he had already come to a stop in the median and was waiting to turn. According to the car driver, the motorcyclist was still in her lane of travel when she hit him; she saw him trying to cross in front of her and he was still moving when she hit him.

The car driver testified she did not skid, but there were skid marks at the scene. The main issue was whether the car was responsible for the accident or whether, as the car driver testified, the motorcyclist was still moving when she hit him. The location of the motorcycle during the accident, as shown by the skid marks, could prove who was responsible.

What is Florida’s Dangerous Instrumentality Doctrine?

Published on: May 24, 2013 | by Friedman Rodman Frank & Estrada, P.A.

The Florida Supreme Court adopted the dangerous instrumentality doctrine in 1920. This doctrine provides: a vehicle owner (and others that own inherently dangerous tools) may be held vicariously liable when he or she consents to let someone drive his vehicle who operates it irresponsibly and causes damages. The doctrine is similar, but separate from, the doctrine of respondeat superior, which imposes liability upon a “principal” for negligent acts of his agent that occur during the course and scope of the agent’s employment.

Parents of minors in Florida must take particular note of the dangerous instrumentality doctrine. A parent who signs his or her minor’s application for a driver’s license may be held vicariously liable for the child’s negligent operation of a motor vehicle.

A Florida appellate court recently considered the question of whether application of the dangerous instrumentality doctrine means that a driver can be considered an agent of the car’s owner. This is less complicated than it may sound.

The question came up during a wrongful death lawsuit. A car crash killed both the driver of a vehicle and his passenger when the driver failed to stop at a red light. The passenger’s mother filed a lawsuit against the driver’s estate and the driver’s father, who owned the vehicle. The father was included in the lawsuit under the dangerous instrumentality doctrine.

Florida Appellate Court Rules Inconsistent Testimony Is Not Enough to Warrant Dismissal

Published on: May 14, 2013 | by Friedman Rodman Frank & Estrada, P.A.

In Gautreaux v. Maya, a Florida appellate court considered a dismissal of a personal injury lawsuit based upon an alleged fraud upon the court. The case arose from an automobile accident. The plaintiff claimed continuing migraine headaches as a result of an accident caused by the defendant’s negligence.

The defendant filed a motion to dismiss the plaintiff’s lawsuit. He claimed that the plaintiff had falsely claimed she never had headaches before the accident. At the motion hearing, the defendant presented deposition testimony to this effect. During the same month, however, a neurologist examined her. The neurologist’s report of the examination revealed that the medical assistant had noted that the plaintiff did not previously have the symptoms of headache.

Florida Appellate Court Reviews Issue of Privacy in Auto Accident Case

Published on: May 10, 2013 | by Friedman Rodman Frank & Estrada, P.A.

A Florida appellate court recently reviewed the issue of when a driver’s personnel file can be compelled for purposes of providing proof in an auto accident case in Walker v. Ruot. That case arose from a car accident in which an employee of Bright House Networks LLC injured the plaintiff couple by rear-ending their vehicle with a Bright House van.

The couple filed a lawsuit alleging negligence against both employee and employer. In the course of the lawsuit, the couple served on the employer a request to produce the personnel file of the driver. The employer objected that the personnel file included information irrelevant to the lawsuit and that producing the personnel file violated the driver’s right to privacy.

The couple filed a motion to compel the personnel file in the lower court. At the hearing for the motion they argued that the information contained in the file might support their claims against the employer for negligent entrustment, negligent hiring, or negligent retention. They also argued it might help them locate the employee to serve him with the lawsuit. The employer again objected as to the relevance of the personnel file, but agreed it did not have standing to assert its employee’s privacy rights.

The trial court did not conduct an in camera (private) inspection. It simply ordered the employer to produce the personnel file and ruled that the documents were relevant. The employer appealed this decision.

Florida Appellate Decision Recognizes Importance of Accident Victim’s Right to Seek Counsel

Published on: May 6, 2013 | by Friedman Rodman Frank & Estrada, P.A.

The recent appellate decision in Howard v. Palmer illustrates that the courts recognize the importance of being able to hire an experienced, savvy personal injury attorney right away. In that case, an employee of Groupware ran a stop sign and crashed into the plaintiff’s car. The plaintiff sued for personal injuries in a negligence and vicarious liability lawsuit against both employee and employer.

Before trial, the plaintiff’s attorney made a motion to prevent the defense attorney from presenting evidence that on the day of the accident, the plaintiff contacted an attorney who referred him to a doctor. The plaintiff’s attorney believed that the defense attorney would ask all of the plaintiff’s doctors if they knew he had met with an attorney. The defense confirmed that this was its plan, claiming that plaintiff contacting an attorney the day of the accident created an issue as to whether he actually experienced a permanent injury or if it was a manufactured permanent injury.

The trial court ruled for the plaintiff and prohibited the defense attorney from asking questions about when plaintiff contacted an attorney. Nonetheless, when questioning the plaintiff’s treating physicians, the defense attorney asked one of the doctors if he knew that the plaintiff had seen an attorney before going to the first treating doctor. In a sidebar before the court, the attorneys disagreed about what the court’s ruling had been, and the plaintiff’s counsel brought up the case law he had brought up during the motion. That case law concerned a similar issue in which the court ruled inadmissible any evidence of a plaintiff seeing an attorney three days after an accident.

The trial court in the instant case agreed with the plaintiff and said it would give the jury a curative instruction. The plaintiff’s counsel next asked for a mistrial to sanction defense counsel for violating the court’s order.

Florida Legislative Ban on Texting While Driving

Published on: May 2, 2013 | by Friedman Rodman Frank & Estrada, P.A.

After four years of thinking about whether or not to ban texting, the Florida legislature has sent a texting-while-driving ban to Florida Governor Rick Scott this week. The House voted 110-6 to pass the ban, while the Senate voted 39-1 to approve the bill that the House had amended.

Critics of the ban say that this ban is a watered-down bill. It makes texting while driving a secondary offense, rather than a primary one. In other words, a driver has to also violate another law in order to be pulled over for texting. A driver who violates the ban for the first time can only be fined $30.00 plus court costs.

The ban permits cellphone records to be used as evidence only if an accident causes a death or personal injury. While this latter point is good news for those who have suffered a personal injury, it does not help those who are killed as a result of others’ negligence in texting while driving. This is a big enough problem in Florida that the ban probably should have been stronger. Thirty-nine states and D.C. already ban texting.

Most of us know someone who texts while he or she drives, even though studies show that texting while driving is incredibly dangerous. One in 7 adults has admitted he or she texts while driving. Texting while driving diverts a driver’s visual, manual and cognitive attention away from the road. In 2011, 23% of car crashes (which comes out to equal approximately 1.3 million) involved cell phone use. That year, 3,331 people in the United States were killed by a distracted driver (not just including those who texted, but anybody whose attention was fixed on something other than driving).

Florida Appellate Court Rules New Trial Not Appropriate in Car Accident Case

Published on: April 12, 2013 | by Friedman Rodman Frank & Estrada, P.A.

In Smith v. Lllamas, the Second District Court of Appeal of Florida ruled on the question of whether a motion for new trial was appropriately granted in an auto accident case. The case arose from a car collision that occurred in 2008, when a man and woman were each traveling in opposite directions on a two-lane road.

The woman was turning left when the cars crashed. The man sued her, alleging personal injuries in his neck and knees. The woman raised comparative negligence as her defense.
At trial, the parties presented conflicting expert testimony on the man’s neck injury. The neurosurgeon who treated the man said it was a permanent injury and that although he had undergone surgery, he did not expect the surgery to fully eliminate his neck pain. The orthopedic surgeon who testified for the woman said he didn’t think the injury arose from the car accident and that he would have recommended a more conservative approach than surgery.

The parties also presented conflicting evidence with respect to the knee injury the man alleged. The orthopedic surgeon who treated the man said the injury was caused by the accident and permanent, but that the basis for his opinions was partially from the history given by the man. He admitted there were inconsistencies in what the man had told him. For example, the man had gone to the chiropractor immediately following the accident, rather than the emergency room even though he claimed he was bleeding. He didn’t seek treatment for his knees until eight months after the accident. Also, he didn’t consistently report knee pain to his doctors–even four days after the accident.

The jury found the woman solely liable and awarded the man past medical expenses in the amount of $37,000 without apportioning the award between his neck and knee injuries. They found the injuries weren’t permanent and awarded him nothing for his future care and pain and suffering.

New Florida PIP Law Limits Time and Medical Options for Those Injured In a Car Accident

Published on: February 13, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Four children and one adult driver had to be taken to the hospital near Miami, Florida after a driver crossed the center-line and hit their shuttle van head-on. Two children were ejected from the vehicle, but were in stable condition, one child’s condition was unknown, and the fourth child and driver remained uninjured. The driver claimed he was having a heart attack, but that was subsequently shown to be untrue.

While the victims in this recent accident quickly sought needed medical attention, other insured Florida car accident victims may not think they need, or can afford, medical services. The latest version of the Florida Motor Vehicle No-Fault statute, recently made effective at the beginning of 2013, substantially changed the laws regulating Personal Injury Protection (PIP). Foremost among the changes, is the mandate for those injured to receive initial services and care within 14 days of the accident.

Follow-up care is allowed, but must qualify under the statute. The new version of the PIP guidelines delineates the medical care providers that can perform the initial evaluation and treatment. Massage therapists and acupuncturists were explicitly excluded. Once that treatment is administered, then follow-up care related to the underlying condition is permitted.

The amount of coverage you receive under Florida’s new PIP laws will depend on whether the condition is considered an “emergency medical condition”. If it is, then you can receive up to $10,000. If not, then the maximum coverage is $2500. An “emergency medical condition” must be so serious that without immediate care, serious jeopardy to the patient’s health, serious impairment to bodily functions, or serious dysfunction of a body part or organ will occur. The previous statutory coverage also went up to $10,000, but allowed up to 80% of all reasonable expenses for medically necessary services, 60% of disability for any loss of gross income and earning capacity per individual from inability to work that was proximately caused by the accident, and 100% of replacement services like lawn care or childcare.