Personal Injury

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.

Indemnification Agreements in Florida Personal Injury

Published on: March 20, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case, a hotel appealed after the court entered summary judgment in favor of Lufthansa on its cross-claim for indemnification. Lufthansa is a German airline that brings travelers to Miami among other locations. Lufthansa had drafted and contracted with the hotel in 2003 so that the hotel would provide lodging for the airline’s flight attendants on overnight layovers.

In 2008, flight attendant Juergen Wauschke was staying at the hotel because of the agreement. When he tried to open his 7th floor hotel room window, the window fell out of its frame and struck another hotel guest Jaime Young who was sitting below his bedroom.

Young sued the hotel for vicarious negligence and added Lufthansa and the engineering firm responsible for design and maintenance. The claim against Lufthansa was based on the theory that Lufthansa had vicarious liability for its employee Wauschke’s negligence.
Lufthansa requested indemnification from the hotel based on the written agreement. The indemnification clause of the written agreement stated that the hotel would indemnify and hold Lufthansa harmless from liabilities including injury and death that arose from the hotel’s negligence or willful misconduct.

Confidential Settlements in Florida

Published on: March 4, 2014 | by Friedman Rodman Frank & Estrada, P.A.

Recently, a Florida plaintiff’s daughter posted a status update on her father’s settlement. It proved to be a terrible error in judgment. The father had been a headmaster whose contract was not renewed. He sued his former employer in federal court and won an $80,000 settlement. The agreement included a confidentiality clause. It prohibited both the plaintiff and the school from talking about the case.

His daughter, however, bragged about the settlement on Facebook to 1200 friends, noting it would pay for her vacation to Europe and telling the school to “suck it.” A number of the friends were former classmates at the prep school, which she had attended. When the school’s lawyers found out, they stated they wouldn’t pay. The plaintiff filed a motion to enforcement the settlement. In his view, his daughter was retaliated against and was a part of what was happening. She had known about the mediation and he felt he had to share what had happened with her. He won the motion to enforce in Circuit Court, but the school appealed.

The Third District Court of Appeal for the state of Florida found for the school and reversed the Circuit Court, throwing out the $80,000 settlement. The court explained that the daughter had done exactly what the agreement was supposed to prevent.

Do Parents Have a Duty to Protect Relatives From Their Violent Son?

Published on: February 25, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case, a Florida appellate court considered a tragic shooting incident whereby a couple’s 35-year-old son Paul shot and killed his family members at Thanksgiving. Sixteen family members were in attendance. The couple attended every year, but their son didn’t. In fact, the year before, the host had told the couple he would cancel dinner if they brought Paul.

The reason for this statement was because Paul had a history of violence. He was showing signs of aggression and chronic violence in his early 20s. He threatened his immediate and extended family. Two years later he was deemed legally disabled.

He lived with his parents from 1994-2006. During that time, the police were called 10 times based on his threats of violence and refusal to take his prescribed psychotropic medication. He was involuntarily committed at one point and at another, shot himself in the chest. Paul had a grudge against his uncle and sisters. He was violent towards his sisters and she had once gotten a restraining order against him. In spite of his issues with threats and firearms, the couple didn’t do anything to prevent him from buying firearms with money they gave him.

What is “Judicial Estoppel” in Florida?

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

Judicial estoppel in Florida may be found where a party has previously maintained an inconsistent claim or position as a preliminary matter or part of a final disposition in a judicial proceeding. A party is “estopped” from maintaining the later inconsistent position. In a recent case, a Florida husband and wife appealed a final summary judgment against them, granted on the basis of judicial estoppel.

Their case arose from personal injuries experienced by the husband in his work as a condominium security guard. In 2008, a ladder being used by DirectTV fell on him. A few months later the couple consulted a firm that agreed to take their personal injury case. The law firm sent a letter to the condominium’s insurance carrier summarizing the husband’s case.

Later the couple filed for Chapter 13 bankruptcy (in which debts must be repaid according to a plan). The lawsuit was not listed on the portion of the bankruptcy petition for contingent claims. A few months later, the court approved the couple’s debt repayment plan.

Is Failing to Report a Prior Accident Fraud Upon the Court in Florida?

Published on: February 18, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case, a Florida appellate court considered a personal injury case in which it was alleged the plaintiff had committed a fraud upon the court. The plaintiff had sued the defendant after a car crash in January 2010, claiming injuries to his neck and back. He had a laser surgery in his lower back late that year.

During discovery, the defendant had propounded discovery requests upon the plaintiff, including an interrogatory that asked him to list and describe in detail all prior car accidents, slip and falls, and workers’ compensation claims he had reported over the past decade. Among other things the plaintiff had to provide a disability rating and explain what part of the body this applied to. The plaintiff answered none to this interrogatory.

A request for production to the plaintiff sought copies of his medical records and other related treatment reports. One document produced by the plaintiff was a treatment note regarding his visit on the date of a crash; the noted stated the plaintiff had one prior accident with no injuries claimed.

Negligence and Strict Liability in Florida Roll-Over Crash Case

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

Roll-over cases in Florida involving both negligent driving and product defects can be complex and challenging because different standards apply to different aspects of the case. In a 2012 case, a woman tried to recover damages for injuries she suffered in a car accident. She had been hurt in a roll-over crash while driving her boyfriend’s Ford Explorer.

The woman sued Ford for strict liability, negligence, and associated claims of defects, including negligent design of the suspension system. She alleged that the suspension system was designed so that it would roll over with a sudden lane change, and that its roof and safety systems didn’t offer proper protection.

Ford defended itself by arguing that the plaintiff was negligent in how she drove. It moved for summary judgment on that basis. The evidence attached to the moving and opposing papers were limited. Ford argued that the plaintiff was legally intoxicated at the time of the accident and that was why she was hurt. It also argued she didn’t present expert testimony on the issue of defects.

Applicability of Maritime Law to Florida Boat Accident

Published on: February 10, 2014 | by Friedman Rodman Frank & Estrada, P.A.

Boating for recreation is common in Florida. If an accident arises while boating, what law applies? Whether maritime law applies depends upon the body of water involved. In a 2009 case a personal representative of a decedent’s estate brought a lawsuit for personal injuries sustained by the decedent in a boat accident. The case arose when Jeffrey Briggs rented a boat from a lighthouse marina after drinking alcohol. His mother and father were boat passengers.

Two or three hours after they started boating, Jeffrey hit the wake from a larger boat. His mother flew into the air and broke her back on the floor of the boat. She had to be in a body cast for 8 months after the accident. Almost four years after the accident, she sued her son, the company that rented him the boat, and the boat’s manufacturer. In an amendment to the complaint, she alleged that the company had negligently entrusted the boat to her son and claimed breach of contract against her son.

The defendant filed for summary judgment. Initially they were denied, but they were filed again after discovery. The defendants argued that the woman’s claims were barred by a three-year statute of limitations for torts under maritime law. The trial court granted summary judgment, finding that the incident happened in navigable waters and bore a substantial relationship to maritime activity. Since it had been filed four years after the accident, the plaintiff’s action was barred.

Slip and Falls in Landscaped Areas in Florida

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

While landowners in Florida have a responsibility to maintain their property in a safe condition or warn of nonobvious dangers, this duty may not apply if you are walking someplace on the property you are not supposed to be, such as landscaped areas, when other options are available.

In a recent case, a man went to the store Sam’s Club to buy something. He parked in their parking lot, which was landscaped with dirt, trees and grass that was not bounded with curbs. It had walkways that permitted people to walk from one landscaped area to the next without stepping onto the landscaped area. No signs told people to use these walkways.

The man left his car and tried to move through the landscaped area towards the store entrance. He knew there were walkways, but he chose to walk through the landscaping because it presented a shorter distance from the car to the entrance. His foot caught on a tree root and the man fell on a parking stop. He had to be taken to the hospital.

Stacking of Inferences in Florida Personal Injury Cases

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

Stacking inferences is impermissible in Florida personal injury cases, but a defendant may not frame a single inference as multiple inferences in order to defeat a plaintiff’s claim. In a recent case that illustrates this point, a Florida appellate court considered a single-vehicle accident that happened on a part of Interstate 95 that a construction company was contracted to resurface.

The case arose from an accident at dusk. It had been raining most of the day and was raining at the time of the accident. Another driver witnessed the accident, which started in the far left passing lane. The witness thought the plaintiff’s car, which was traveling in that lane, was going too fast for the rainy weather. The witness saw a sheet of water on the road and saw the car go sideways in the air. When he was cross-examined on this point, he stated he wasn’t sure whether there were puddles. The plaintiff’s car landed in the grass by the right lane.

A few minutes after the accident, a state trooper arrived. The plaintiff was taken to the hospital. Later the trooper testified at a deposition that there was standing water in the far right lane. His report included a diagram, which suggested the plaintiff lost control of the car when it touched standing water.