Personal Injury

Florida Appeals Court Refuses to Limit Discovery Regarding Doctor’s Relationship With Law Firm in Car Accident Negligence Case: Brown v. Mittelman

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

In Brown v. Mittelman, a plaintiff who was injured in a car accident sought medical treatment from a physician following the collision. The plaintiff’s attorney apparently referred the plaintiff to the medical provider. In addition, the doctor reportedly treated the plaintiff under a letter of protection agreement. Such an agreement is generally used to help an injured person pay for medical care they would not be able to afford otherwise. In many cases, a letter of protection is sent to a medical provider by a plaintiff’s attorney who agrees to remit payment for services following an accident settlement.

After the plaintiff filed a lawsuit against the defendant, the defendant sought to discover certain billing documents from the non-party physician. The doctor objected to the defendant’s request, and a trial court overruled the medical provider’s objections. After that, the lower court compelled discovery of the evidence that was sought by the defendants. In response, the non-party physician filed a writ of certiorari seeking to quash discovery with Florida’s Fourth District Court of Appeals.

According to the physician, Florida Rule of Civil Procedure 1.280(b)(5) prohibited discovery of the information sought by the defendant because there was no evidence to support the notion that the plaintiff’s law firm directly referred the plaintiff to him for treatment. The appellate court disagreed and stated a lawyer’s financial relationship with a medical provider is discoverable because the relationship may result in bias. The Fourth District added that jurors should be allowed to review evidence related to such a relationship because the doctor may have a financial interest in the outcome of the plaintiff’s negligence lawsuit.

Tampa Federal Court Refuses to Sever Bad Faith Claim Against Insurer From Underlying Lawsuit: Jirau v. Wathen

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

The Middle District of Florida has refused to sever a bad faith insurance claim filed against an automobile insurance company from the underlying negligence action. In Jirau v. Wathen, a man was hurt in a Brandon traffic wreck. Following the crash, the man filed a negligence lawsuit against the allegedly at-fault driver in state court. He also sought underinsured or uninsured motorist coverage from his vehicle insurer. In addition, the man accused his insurance company of acting in bad faith when settling his claim. After the man filed his lawsuit, the insurer successfully removed the case to the Middle District of Florida in Tampa based upon diversity of citizenship. Diversity of citizenship is appropriate only when each of the parties to a lawsuit is a resident of a different state, and the amount in controversy exceeds $75,000.

Following removal to federal court, the injured man sought to have the case remanded back to state court because the at-fault driver was also a Florida citizen. Despite evidence to the contrary, the auto insurer claimed diversity of citizenship existed and asked the court to sever the at-fault driver from the case rather than remand the entire lawsuit. Following a hearing, the federal court granted the injured man’s motion and sent the case back to state court. According to the Middle District of Florida, “the power to sever non-diverse defendants to maintain jurisdiction should be used sparingly” in order to prevent potential prejudice. In response, the insurance company filed a motion for reconsideration as to the bad faith claim pending against it with the federal court.

After reviewing the claims the injured man made against the at-fault driver and his insurer, the court stated that severing the bad faith cause of action would waste judicial resources. Additionally, the court held it would be unfair to require the accident victim to pursue two different cases against the same defendant in both state and federal court. The federal court added that doing so could require the plaintiff to prove damages related to the same accident twice. Since severing the claims would be unnecessarily unfair to the plaintiff, the Middle District of Florida in Tampa denied the auto insurer’s motion for reconsideration.

Orlando Federal Court Refuses to Remand Underinsured Motorist Claim Back to State Court: Stephenson v. Amica Mutual Insurance Co.

Published on: August 28, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In Stephenson v. Amica Mutual Insurance Co., a man suffered permanent physical injuries when he was struck by an automobile while riding his bicycle. Following the collision, the man filed a demand letter seeking $100,000 in damages with the provider of his underinsured-motorist coverage. After the injured man’s automobile insurance company denied his claim, he filed a lawsuit in a Florida court against the insurer and the driver who struck him, seeking more than $15,000. In response, the automobile insurance company filed a number of discovery requests that the injured man apparently ignored.

After the bicyclist settled his case against the Florida motorist, the insurance company filed a motion to remove the lawsuit to federal court based upon diversity of citizenship. In order to remove a case to federal court on this basis, the parties to a lawsuit must be citizens of different states, and the amount in controversy must exceed $75,000. In addition to filing its motion, the insurance company also submitted a request to the injured man asking him to admit that the amount in controversy did not exceed $75,000. After the bicyclist refused to answer because the question “invaded the province of the jury,” the case was removed to the Middle District of Florida in Orlando.

Not long after the personal injury case was removed to federal court, the injured man filed a motion to remand the case back to state court based on a lack of timeliness and a failure to meet the amount in controversy threshold. The Orlando court stated removal is proper when a case that was filed in state court could have initially been brought in federal court. According to the court, the injured man’s demand letter demonstrated the amount in controversy exceeded $75,000. The Orlando court also said the allegations in the man’s complaint did not provide enough information to determine the actual amount in controversy. After that, the Middle District of Florida held that the amount in controversy exceeded the jurisdictional threshold based on “judicial experience and common sense.”

Middle District of Florida Rules in Favor of Insurer Where No Meeting of the Minds Occurred in Rescinded Settlement Offer: Goodman v. SAFECO Insurance Co. of Illinois

Published on: August 21, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In Goodman v. SAFECO Insurance Co. of Illinois, an insurance company provided bodily injury and other automobile coverage to a woman whose vehicle was involved in a 2012 traffic wreck. Immediately prior to the collision, the owner of the insured vehicle apparently allowed another individual to drive her car. Unfortunately, the man who borrowed the vehicle was involved in an accident while he was operating the insured auto. Following the collision, a plaintiff who was allegedly hurt in the traffic wreck filed a personal injury claim seeking $200,000 from the owner of the vehicle’s insurance company. In response, the insurer offered to settle the plaintiff’s claim for the insured’s bodily injury liability limit of $100,000 per person. Following the offer, the insurance company and the plaintiff reportedly entered into negotiations regarding the plaintiff’s property damage.

A few months later, the plaintiff filed a Civil Remedy Notice of Insurer Violations under Florida Statute Section 624.155. According to the plaintiff, the automobile insurance company failed to act in good faith when it attempted to settle the plaintiff’s car accident claim. In addition, the plaintiff stated her claim could be settled for about $107,000. Later, the insurer withdrew its settlement offer and stated the company was not required to cover the automobile accident. In response, the plaintiff filed a breach of contract lawsuit against the insurer and the owner of the vehicle that allegedly harmed her in a Florida court. The insurance company then removed the case to the Middle District of Florida.

Eventually, the insurer filed a motion for summary judgment against the plaintiff asserting that it could not have breached a settlement agreement with her absent the existence of an enforceable contract. When a party to a lawsuit files a motion for summary judgment, the party is asking the court to rule in its favor without proceeding to trial. In general, such a motion will not be granted unless there is no material issue of fact in dispute and the moving party is entitled to judgment as a matter of law. A court must view a motion for summary judgment in the light that is most favorable to the non-moving party.

Southern District of Florida Dismisses Mesothelioma Lawsuit Against Manufacturing Company: Rothchild v. Crane Co.

Published on: August 14, 2014 | by Friedman Rodman Frank & Estrada, P.A.

The Southern District of Florida has dismissed a man’s damages claim against a company he alleges caused him to be exposed to asbestos. In Rothchild v. Crane Co., a man who contracted mesothelioma from his exposure to asbestos fibers filed a lawsuit in state court seeking damages from a manufacturing and distributing company. After the case was removed to federal court, the man alleged he was injured as a result of his exposure to products containing asbestos that the company produced and sold. Although the man claimed that he was exposed to the company’s asbestos-containing products at a manufacturing plant in Boynton Beach between 1961 and 2003 in his state court complaint, neither party to the lawsuit referred to this purported exposure after the case was removed to federal court. In response to the man’s injury lawsuit, the company filed a motion to dismiss the case for failure to state a claim upon which relief may be granted. The company argued that the man failed to plead his case with enough specificity to determine whether the business had any role in his asbestos exposure.

According to the court, the Federal Rules of Civil Procedure require that a plaintiff in a lawsuit plead his or her case with a “short and plain statement of the claim showing that the pleader is entitled to relief.” In addition, the facts alleged must be sufficient to demonstrate that a plaintiff has a plausible claim for relief. The court stated it is required to view a plaintiff’s allegations as true when considering a motion to dismiss a lawsuit. Still, a court may only consider those allegations and exhibits provided in the plaintiff’s complaint.

After examining the man’s federal pleading, the court held that it was not sufficient. The Southern District of Florida stated the complaint did not contain enough facts to demonstrate the company may have committed the acts alleged. Because of this, the federal court granted the company’s motion to dismiss the man’s lawsuit and provided the plaintiff with 30 days during which to amend his pleading to add more specificity.

Florida Court Grants Summary Judgment in Favor of Insurer in Motorcycle Crash Case: American Economy Ins. Co. v. Traylor/Wolfe Architects, Inc.

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

In American Economy Ins. Co. v. Traylor/Wolfe Architects, Inc., a man filed a personal injury lawsuit against an architect and his company following a motor vehicle accident. According to the man’s complaint, he was injured when the architect caused a collision by negligently driving his personal sport utility vehicle into the path of his motorcycle. In his complaint, the man alleged the architecture company was vicariously liable for the architect’s negligent behavior. The doctrine of vicarious liability allows an injured person to hold an employer financially responsible for the negligent acts of a worker if the worker was under the employer’s control at the time and the employee was acting within the scope of his or her work duties.

At the time of the accident, the architect’s company was insured by a business policy. After the lawsuit was filed, the architectural firm’s insurance company filed a motion for summary judgment, alleging the insurer had no duty to defend or indemnify the architect or his firm under the terms of the insurance policy. In a motion for summary judgment, a party to a lawsuit asks the court to rule in its favor because no genuine issue of material fact is in dispute and the party is entitled to judgment as a matter of law. When a court considers such a motion, the facts of the case are normally viewed in the light that is most favorable to the non-moving party. The injured man opposed the insurance company’s motion, and the Middle District of Florida held a hearing on the matter.

According to the insurer, the architect was not operating the vehicle for a business purpose at the time of the motor vehicle wreck. While reviewing the insurer’s motion, the federal court examined the undisputed facts of the case in order to determine whether the architect was in fact operating his vehicle within the scope of his employment. Although the architect made a business trip to a mobile telephone store prior to the accident, the court found there was no evidence beyond the injured man’s speculation that the architect was using his vehicle for business purposes at the time the collision occurred. The court stated the two trips that the architect took on the day of the accident were separate. In addition, evidence offered to the court indicated the nature of the trip he was taking at the time of the crash was personal. Since the undisputed evidence demonstrated the architect was not operating his SUV within the scope of his employment with his company when he collided with the motorcycle rider, the Middle District of Florida granted the business insurer’s motion for summary judgment and held the insurance company had no duty to defend the architect or his firm.

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.

Florida Appeals Court Examines Res Ipsa Loquitur Requirements in Personal Injury Case: MacClatchey v. HCA Health Services of Florida, Inc.

Published on: June 16, 2014 | by Friedman Rodman Frank & Estrada, P.A.

Florida’s Fourth District Court of Appeals has ruled that a personal injury case should be tried before a jury. In MacClatchey v. HCA Health Services of Florida, Inc., a woman was injured when a framed piece of artwork fell on her head while she was visiting her spouse in the hospital. According to the woman, a hospital worker cleaned up shattered glass from the picture’s frame and showed her broken hooks on which the artwork was previously hung. Following the incident, the woman filed a negligence claim against the hospital. In her lawsuit, the woman stated she was injured because the hospital failed to exercise reasonable care.

The hospital responded to the woman’s lawsuit by filing a motion for summary judgment. In a motion for summary judgment, a party to a lawsuit is asking the court to rule in his or her favor because there are no material facts in dispute and the undisputed facts of the case entitle that party to judgment in its favor. In the hospital’s motion, the company asserted that it did not know or have reason to know the piece of artwork posed a danger. Additionally, the hospital alleged that the negligence doctrine of res ipsa loquitur did not apply to the facts of the case because numerous third parties had access to the artwork. This doctrine infers negligence based upon a party’s resulting harm without requiring direct proof of negligent behavior where the cause of an injury is under the exclusive control of a defendant and the accident is one that normally would not take place but for an act of negligence. The trial court granted the hospital’s motion for summary judgment and the injured woman appealed her case to Florida’s Fourth District Court of Appeals.

On appeal, the court stated summary judgment was inappropriate in this case because there was a question of fact regarding whether the framed artwork was under the exclusive control of the hospital. The court also determined that several affidavits offered to the trial court showed the circumstances surrounding the purported failure of the picture hanging hooks were in dispute as well. Because the evidence could permit reasonable people to draw different conclusions, the appellate court reversed the trial court’s decision and stated the case should have been submitted to a jury.

Is There a Non-delegable Duty to Supervise Florida Hospital Doctors?

Published on: May 27, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a 2012 case, a plaintiff appealed a final judgment that entered a defense verdict for a hospital in her wrongful death case. The case arose when her husband went in for back surgery and died the next day from cardiac arrhythmia. After that, the plaintiff sued the hospital for its own negligence and the negligence of its employees.

The plaintiff named an ER physician as a negligent agent for whose actions the hospital was liable. The plaintiff claimed the hospital was vicariously liable under the respondeat superior doctrine. This doctrine permits a company to be held responsible for its employees that act in the course and scope of employment on the employer’s behalf. The plaintiff also alleged the hospital was responsible for the physician’s conduct because there it had a nondelegable duty to supervise him.

The plaintiff’s expert witness testified in deposition that the doctor had violated is duty by delaying in his response to an emergency situation. The hospital filed a motion for partial summary judgment. It argued that the ER doctor was an independent contractor and therefore it wasn’t liable for him. The trial court granted the partial summary judgment, ruling the doctor did not serve as an actual agent of the hospital. The trial court concluded there was no non-delegable duty to supervise. Continue Reading ›

Releases for Dangerous Activities in Florida

Published on: May 13, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case, a man whose wife drowned while scuba diving in 2010 appealed the court’s granting of summary judgment in favor of the recreational diving operation Key Dives. The wife had drowned at the start of an advanced open water dive to an underwater wreck.

It was Key Dives’ practice to require customers to sign a release before a day’s dive. The man and his wife signed these releases in favor of Key Dives on previous dives. On the morning of the fatal dive, the couple was late in arriving. They did not sign the release for that day’s dive. It was a dive for which dive industry standards dictated a particular type of release was to be used.

On the morning of the dive, the woman was worried about diving for unknown reasons. Ocean swells were between 4-5 feet. The husband went in first and his wife followed. After going down about 10 feet, she signaled she wanted to come back to the surface. She tried to board the boat but lost her grip and drifted off. An alarm was sounded, but she was found drowned.