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Articles Posted in Personal Injury

Many Florida personal injury lawyers represent clients on a “contingency fee” basis. Under this framework, an attorney will get paid by deducting a portion of a final, personal injury or wrongful death settlement or from a damages award. Recently, a Florida injury plaintiff moved to assess attorneys fees based upon a settlement proposal. The trial court denied the motion, reasoning that the settlement proposal was ambiguous.

The case stems from injuries the plaintiff suffered while living as a tenant on the defendant’s property. Before litigation, the plaintiff served the defendant with a settlement proposal according to Florida Statutes § 768.79 and Florida Rules of Civil Procedure (FRCP) 1.442. The defendants did not accept the proposal, but a jury found it in favor of the plaintiff. The plaintiff moved for attorneys fees because the judgment exceeded the settlement proposal by more than twenty-five percent.

The defendants argued that the proposal included ambiguous and vague language and was beyond the scope of the claims. Florida courts strictly construe the statute and rule because the common law rule is that each party should pay its fees. Furthermore, settlements proposals must be “sufficiently clear” to allow the offeree to make an informed decision. The purpose of the rule is to conserve judicial resources and reduce litigation costs by encouraging settlement negotiations.

An appellate court recently issued a decision in a Florida accident case resulting in serious injuries. The defendant admitted fault and the issues at trial related to damages, causation, and severity of the plaintiff’s injuries. The jury found in favor of the plaintiff but failed to address whether she was entitled to damages for her preexisting condition.

Florida follows the theory of the “eggshell plaintiff.” Under this concept, negligent parties take the injury victim as they found them. This means that the defendant will be liable for the full extent of a plaintiff’s injuries, even if their injuries were more than an average person would experience under similar circumstances. The doctrine applies in cases when an injury:

  • Activates a latent condition;

A lot of legal jargon sounds as foreign as it is. In the case of “forum non-conveniens,” however, the meaning is much like it sounds. A tactical strategy to avoid litigation, the concept of forum non-conveniens allows defendants to argue that the case against them should be dismissed because the court—or “forum”—where the suit was brought is inconvenient for them.

In the past, big companies defending suits against accident victims have gotten cases dismissed on the ground of forum non-conveniens. The results can be alarming and unfair. Lacking the same resources as the typical corporation, the average accident victim—perhaps still recovering from her injuries—is often unable to bring the case in the court the company says is convenient for them. For example, for obvious reasons, a Florida resident taking on a chain retailer probably would not want to bring her case in Alaska.

In a decision earlier this month, a Florida appellate court denied a large health care company’s attempt to squash a lawsuit through forum non-conveniens. A man had sued the company several years earlier, claiming that the company’s allegedly defective medical device had injured him.

After experiencing an injury because of another’s negligence, an accident victim may be able to collect damages for their losses. Under Florida’s negligence laws, the plaintiff must establish that the at-fault party was responsible for the incident and ensuing injuries. While this may seem straightforward, the law has many nuances that make recovery challenging for many Florida accident victims. Injury plaintiffs must meet the four primary prongs of a personal injury lawsuit to recover damages successfully. In addition, they must be able to overcome any defenses the at-fault party poses.

Broadly speaking, a defendant may be liable for negligence if they failed to use reasonable care. Reasonable care is that which a similarly situated person would use under the same circumstances. Negligence may include the failure to do something that a reasonable person would do or doing something that a reasonable person would not do. The four elements of a Florida negligence lawsuit include establishing that the defendant owed the victim a duty, they breached that duty, that breach was the cause of the plaintiff’s harm, and the plaintiff suffered compensable losses. Defendants can refute any part of a plaintiff’s claim, and if they are successful, the claim will fail. As such, it is vital that claimants contact an attorney to ensure that all elements of their claim are met.

The most critical inquiry in these cases is whether the defendant owed the plaintiff a duty of care. In Florida, the duty of care is the other party’s legal responsibility to the injury victim. A person’s duty of care depends on many factors, including their age and relationship status to the victim. For instance, there are different duties of care for private citizens and their actions towards one another instead of the professional duty of care a medical provider has towards their patient. While a private citizen maintains a duty to drive safely and obey traffic rules, a nurse or doctor has a stricter duty of care to those they are treating than the average person. Similarly, the duty changes when the at-fault party is a business owner.

Late last year, the Florida Supreme Court issued an opinion amending Rule 1.510, Florida’s summary judgment standard. Before making substantive changes, the Court allowed the public to submit comments. After receiving and reviewing the comments, the court issued an opinion amending Rule 1.510, effectively adopting the text of the federal standard. This change will undoubtedly have a significant impact on Florida’s injury lawsuits, as many cases are resolved during this stage of litigation.

The Florida Supreme Court noted that the public comments persuaded them that adopting the federal summary judgment rule would provide the courts with the most seamless and effective transition. The Court emphasized three leading changes in the amended rule.

First, there is an inherent similarity between the directed verdict and summary judgment standard. Under both standards, inquiries regarding whether a genuine issue of material fact exists hinges on the substantive evidence that the parties present. When the moving party does not hold the burden of persuasion, that party can obtain summary judgment without disproving the nonmoving party’s case. Instead, the movant can meet their burden by either producing evidence that a fact is not as it seems or by pointing out the other party’s failure to provide evidence to substantiate an issue.

Recently, the United States Supreme Court issued an opinion unanimously ruling against Ford in a product liability lawsuit. The ruling will significantly impact a Florida product liability accident victim’s ability to file a lawsuit in the state. The case arose when a woman died when her vehicle’s tread separated, and the car spun and rolled into a ditch. The other claim involved a passenger who suffered brain damage when the vehicle’s airbag failed to deploy. In response to the plaintiffs’ lawsuits, Ford argued that the states hearing the cases did not maintain jurisdiction because the cars in the incident were not designed, manufactured or initially sold in the state. The auto manufacturer maintained that allowing the cases to be heard in those forums upended their ability to know where and under what circumstances accident victims may sue them.

Historically, Florida product liability accident victims face challenges in establishing where to sue. Generally, Florida plaintiffs cannot sue a negligent company in any state that the plaintiff chooses. The law provides that plaintiffs must establish that the Court has jurisdiction over the case. Jurisdiction inquiries typically involve examining whether the company maintains “minimum contacts” with Florida and if they “purposefully availed” themselves of the state’s privileges. Courts will also look to whether hearing a lawsuit in the state comports with theories of “fair play and substantial justice.” These analyses are fact-specific and require the experience of an attorney well-versed in these complex jurisdictional issues.

In the recent case, the Supreme Court Justices opined that Ford purposefully availed itself of the privileges of conducting activities in both states involved in the lawsuit. The law does not require plaintiffs to establish a causal link between where the company sold the car and where they designed or manufactured it. Specific jurisdiction occurs in situations when a company encourages a market for a product in the forum state. In this case, the automaker advertises and markets its products in the forum states and cultivates relationships between the vehicle owners. The Court found that the defendant systemically fostered a relationship between consumers and the vehicles involved in the accidents. As such, there is a relationship between Ford, the states, and the litigation. This finding will undoubtedly result in a drastic change in the legal landscape regarding product liability lawsuits involving vehicles.

Although people are generally familiar with the stages of a criminal lawsuit, there tends to be an extraordinary amount of misinformation and confusion regarding Florida civil lawsuits. There are many critical stages of a civil lawsuit that can significantly impact a plaintiff’s avenue for recovery after an accident. Individuals should contact an attorney at the onset of their lawsuit to ensure that they maintain the ability to recover for their damages.

Pleadings are the first stage of a Florida personal injury lawsuit. Although the term is often conflated with “all documents” in a case, the term is much narrower in scope. Pleadings are only documents and filings that set forth allegations, causes of actions, and the defending entity’s responses and defenses. This stage includes the complaint, answers, responses, counter and cross-claims, and relevant amendments.

Florida personal injury lawsuits commence when a party files a complaint or petition. The victim or complaining party should include factual assertions and the associated legal claims. In some situations, the pleadings must conform to special rules, such as claims arising out of medical malpractice or governmental entities. Florida Rules of Civil Procedure allow plaintiffs to proceed under inconsistent theories; however, the rule extends to defenses as well. Courts may rule in favor of a defendant and grant summary judgment if the complaint is insufficient. For example, a Florida appeals court recently dismissed at plaintiff’s claims based on a pleading deficit. In that case, the plaintiff asserted a negligence claim against his neighbor for a fire that a third-party contractor started. The plaintiff failed to address the third party in the complaint. The court found that both parties agreed that the defendant was not negligent and, therefore, only a vicarious liability claim would be viable against the defendant. However, the court dismissed the complaint because the plaintiff failed to allege vicarious liability in their pleading.

Recently, the Supreme Court of Florida answered a certified question regarding the state’s current summary judgment standard. The lower court certified a question asking the court whether there should be an exception to the summary judgment standard when the moving party has video evidence that refutes any evidence that the non-moving party presents.

The case arose after a fatal Florida rear-end car accident. The decedent’s estate filed a lawsuit against the front-car driver and the driver’s employer. At trial, the court relied on the front-car driver’s video evidence showing that the driver was not negligent. However, the appellate court reversed, stating that the trial court “improperly weighed’ conflicting evidence, leading to the certified question.

In the last year, the Florida Supreme Court advised the public of its intention to adopt the summary judgment standard explained by the United States Supreme Court. The court explained that despite the similarities, the Federal Rules of Civil Procedure and the Florida Rules of Civil Procedure had not been aligned. The first difference stems from Florida courts’ refusal to recognize the similarities between summary judgment standards and directed verdicts. Next, Florida courts place the burden on the moving party to disprove the other party’s case theory, to successfully eliminate any issue of fact. Federal courts discharge the moving party’s burden when there is an absence of evidence to support the other party’s case. Finally, Florida courts permit a broad understanding of what amounts to a “genuine issue of material fact”, where the “slightest doubt” is enough to preclude summary judgment. Florida courts have announced that the federal standard best serves the civil procedure rules, and the change will take place in May 2021.

Florida’s attorney-client privilege is one of the oldest recognized privileges in American judicial history. The privilege protects and preserves the confidentiality of communications between attorneys and their clients. The rule provides clients with the right to refuse to divulge and prevent another person from disclosing confidential communications between the client and attorney. Although there are significant policy justifications for the privilege, at its foundation, the rule is designed to promote and encourage the free and open sharing of information between clients and their attorneys. This allows clients to provide their attorneys with accurate and complete information, allowing them to provide more precise and well-reasoned advice and representation.

The attorney-client privilege is an evidentiary rule, as it prevents lawyers from testifying about their clients’ statements. In addition to the privilege, attorneys owe their clients a duty of confidentiality. This prevents attorneys from discussing information related to their clients’ cases in any other context. They must protect all information regarding their client’s case, regardless of the information’s origin. Both of these protections have certain exceptions that may be relevant if a client dies, in cases where the client is actively engaged in fraud, or if the disclosure is necessary to prevent certain death or substantial harm.

Throughout history, courts have heard and addressed various claims involving attorney-client privilege. One recent Florida decision in Worley v. Central Florida Young Men’s Christian Assn., held that the attorney-client privilege protects a law firm’s referral of a client to a treating physician. In that case, a woman fell and suffered injuries in a YMCA parking lot. During pretrial proceedings, the defendants asked her to disclose whether her attorney referred her to her treating doctors. The trial court compelled her to produce the information; however, on appeal, the Florida Supreme Court held that attorney-client privilege protects a party from disclosing information of that nature.

When you head to an appointment with a Florida medical provider, you expect to be treated with respect and to get better soon. But what happens when you’re injured or hurt because of the health care service you receive? Can you sue for medical malpractice? Was it medical malpractice to begin with?

Medical malpractice cases in Florida are unique, in that they have their own requirements. When determining whether a medical malpractice theory applies, courts look to whether the injury arose out of the delivery of, or failure to deliver medical care or services by a health care provider. Healthcare providers in Florida include licensed physicians, osteopaths, podiatrists, optometrists, dentists, chiropractors, pharmacists, hospitals or ambulatory surgical centers. If the defendant is a health care provider under Florida law, then the case falls under medical malpractice and requires stricter procedural rules. Additionally, health care providers or facilities that are not expressly included within the definition of the statute can also be vicariously liable for acts of health care providers.

However, not all situations involving health care related services are necessarily considered medical malpractice in Florida. For example, in a recent state Supreme Court opinion, a plaintiff brought suit against her massage therapist after he allegedly sexually assaulted her during a massage. Before the assault, two separate customers had complained to the facility about the therapist’s conduct and how he had been inappropriate with them during their massages. The plaintiff sued the massage therapy company and claimed that it was negligent in its training, supervision, and retention of the massage therapist who assaulted her.

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