Wrongful Death

Court Rules That Nursing Home Defendant Waived Right to Compel Arbitration

Published on: June 9, 2016 | by Friedman Rodman Frank & Estrada, P.A.

The Supreme Court of South Carolina recently released a decision reversing a lower appellate decision that determined the defendant nursing home maintained their right to compel arbitration of the plaintiff’s wrongful death claim against them, filed on behalf of the plaintiff’s deceased mother. The state supreme court determined that by litigating several issues both before and after the decedent’s passing, the defendant had given up their right to enforce an arbitration agreement signed by the plaintiff when her mother moved into the nursing home.The Plaintiff’s Mother’s Health Declined Quickly after Moving into the Nursing Home

The case of Johnson v. Heritage Healthcare was filed based on the plaintiff’s mother’s quickly deteriorating health and eventual death while living in a nursing home operated by the defendant. According to the facts recited in the supreme court opinion, the plaintiff’s mother was in good health when she moved into the home, but her condition dramatically worsened within six months of moving in. The plaintiff alleged that the defendant’s negligence resulted in her mother’s poor health and eventual death, and she filed a wrongful death lawsuit against them after her mother’s passing.

Prior to the Wrongful Death Lawsuit, the Plaintiff Sought Her Mother’s Medical Records from the Defendant

After her mother’s condition worsened but before her death, the plaintiff filed an action against the defendant, seeking her mother’s medical records to determine why her health had deteriorated so quickly while under the defendant’s care. Although the plaintiff had signed an agreement to pursue claims through arbitration rather than in a state court proceeding, the defendant responded to the plaintiff’s claims in state court. The defendant vehemently resisted the plaintiff’s attempt to access her mother’s medical records, refusing to turn them over after the court ordered that they do so. Until her mother died, the plaintiff was unable to access her medical records in spite of the court’s order compelling the defendant to release them.

Families of Athletes Diagnosed with Chronic Traumatic Encephalopathy May Have Claim against Sports League

Published on: March 25, 2016 | by Friedman Rodman Frank & Estrada, P.A.

By this time, most people have heard at least something about the tragic degenerative brain disease chronic traumatic encephalopathy, otherwise known as CTE. This brain injury has been making headlines across the United States as it was recently discovered that many professional athletes have been suffering with this deadly disease.In the past, CTE was most frequently associated with professional boxers. In fact, it was often called “punch-drunk” syndrome. It is a type of brain damage which is caused by repeated trauma to the head. It is considered a degenerative disease because it persists and worsens over time, and eventually leads the brain to be susceptible to atrophy.

Sadly, the symptoms of CTE are particularly devastating. The most reported symptoms include impulse control issues, memory and cognition impairments, confusion, early-onset dementia, and other mental health problems. As the disease progresses it can lead to behavioral issues including: aggression, severe depression, and even suicidal tendencies. Until very recently, the disease could only be diagnosed after the individual has passed away. There has been some research that revealed signs of CTE just prior to a football player’s death; however, it is still generally considered to be a condition that can only be diagnosed after death.

Florida Mother Fights to Change Wrongful Death Rules

Published on: February 18, 2016 | by Friedman Rodman Frank & Estrada, P.A.

Linda Porter’s son, Pete Thomas, died 12 years ago in a New Port Richey hospital. Now Porter goes to rock concerts and imagines her long-haired guitarist son with her in the audience. This April, Pete would have been 50 years old.

In October 2014, the 38-year-old was admitted to the Morton Plant North Bay Hospital with abdominal pain. Less than 24 hours had passed before he went into respiratory arrest and was put on a ventilator. He died roughly six weeks later. Porter believes the hospital caused Pete’s death by over-medicating him.

Florida Appeals Court Holds Post-Trial Interest Accrues from Date of Judgment, Not Verdict

Published on: February 15, 2016 | by Friedman Rodman Frank & Estrada, P.A.

A Florida appellate court recently reversed a lower court’s ruling that when the amount of the judgment in a tort case is modified on appeal, post-trial interest must accrue from the date of the verdict rather than from the date of the original judgment. The court reasoned that the earlier accrual date in such circumstances unjustly punishes the losing party.In the fall of 2011, a jury rendered a verdict of roughly $7.5 million in a wrongful death lawsuit, finding appellate Shoemaker 40 percent at fault for decedent Stephen Sliger’s death. Following the verdict, Shoemaker and his co-defendants filed a motion to cap non-economic damages according to section 766.118(2) of Florida Statutes. They argued that under 766.118, the non-economic damages should be capped at $500,000. Sonia Sliger, the representative of Stephen Sliger’s estate, responded that section 766.118’s damages limitation violated the Florida and U.S. constitutions.

Florida Appeals Court Remands Wrongful Death Lawsuit Filed Against Ship Owners for a New Trial

Published on: January 4, 2016 | by Friedman Rodman Frank & Estrada, P.A.

In Soto v. McCulley Marine Services, Inc., a man tragically drowned near Longboat Pass on July 4, 2009 when he fell from a jet ski and was sucked underneath a moored barge while wearing a life preserver. At the time of the unfortunate drowning, a nearby dock was being used as a staging area in connection with an ongoing artificial reef program established by Manatee County. When the man drowned, the barge and a 65-foot tugboat that were permitted to participate in the reef building program were both moored at the dock.

Following the man’s untimely passing, his estate filed a wrongful death lawsuit against the owner of the two ships. According to the man’s personal representative, the ships were docked in a negligent manner. As a result, the configuration of the vessels allegedly exacerbated the strong tides that were present in the area and caused the man to be pulled beneath the barge despite his safety jacket.

Florida Appeals Court Rules Insurance Company May Not be Joined in Pending Fatal Car Accident Lawsuit

Published on: September 8, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In Geico General Ins. Co. v. Lepine, a Florida man was unfortunately killed in a motor vehicle collision. Following the accident, the man’s wife filed a lawsuit on behalf of herself and her husband’s estate against the driver who was allegedly responsible for the fatal traffic wreck and his automobile insurer. According to the woman’s complaint, the insurance company reneged on its verbal agreement to pay her the full policy limits of $100,000.

In response to the lawsuit, the insurer filed a motion to dismiss the breach of contract claims brought against the company. In its motion, the business argued Section 627.4136 of the Florida Statutes barred the decedent’s wife from filing a direct cause of action against the insurance company. Under the so-called nonjoinder statute, a noninsured may not file a direct action against an insurance company in Florida without first obtaining a settlement or verdict against the insured party.

Tragic Infant Death Apparently Caused by Florida Daycare Worker Was Excluded from Personal Auto Insurance Policy

Published on: September 1, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In Bryant v. Windhaven Ins. Co., a Florida man purchased a personal automobile liability policy from an insurance company. After securing the policy, the man operated a van in the course of his employment with a daycare center. As part of his job duties, the man picked up children and drove them to the daycare center each day. Tragically, the driver apparently picked up an infant and forgot the child in the van in July 2011. The infant unfortunately passed away before he was discovered, strapped into his car seat seven hours later.

Following the child’s untimely death, his estate filed a wrongful death lawsuit against the driver, the daycare center, and the owner of the property where the daycare operated. In response to the case, the driver requested that his personal automobile insurer defend and indemnify him. The insurer responded by stating the policy did not apply to the daycare center’s van. According to the insurer, the man’s insurance policy explicitly excluded liability arising from any vehicle that was being used in the course of a driver’s employment and any vehicle other than that covered by the policy that was “furnished or available” for a driver’s regular use.

Supreme Court of Florida Holds Deceased Worker’s Estate Cannot Recover Tort Judgment from Employer’s Insurance Company

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

In Morales v. Zenith Ins. Co., a Florida man was tragically killed in a workplace accident. Following the fatal incident, the decedent’s wife agreed to a workers’ compensation settlement with the man’s employer and the employer’s insurance company. The wife also signed a release stating the settlement was the sole remedy for which the insurer would provide coverage to the employer.

Prior to the workers’ compensation settlement, the man’s estate filed a wrongful death action against the man’s employer. As a result, a default judgment of nearly $10 million was entered in favor of the estate. After the employer’s insurer refused to pay the judgment, the estate filed a breach of contract lawsuit against the insurance company in a Florida court. The insurer removed the case to the Middle District of Florida and filed a motion for summary judgment. In its motion, the insurer argued that a workers’ compensation exclusion included in the employer’s policy barred the estate from suing the company. The federal court then granted the insurance company’s motion and entered judgment in its favor.

Florida’s Fourth District Discusses Essential Elements of a Settlement Agreement in Tragic Auto Accident Case

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

In Thompson v. Estate of Maurice, a young man was unfortunately killed while riding as a passenger in an automobile. Following the collision, the decedent’s parents demanded payment from the liability insurance company that provided coverage for the vehicle. The letter included a settlement offer that expired in one month. The insurer responded with a counteroffer that was nearly identical but requested that the young man’s parents sign a release of all claims against the vehicle’s owner and the liability insurer as a condition of settlement. The release was never signed, and no money exchanged hands.

About two years later, the decedent’s parents filed a wrongful death lawsuit against the estate of the individual who was driving the vehicle at the time of the deadly accident and the owner of the car. In their complaint, the decedent’s parents claimed that the driver caused their son’s death by negligently operating the automobile. They also asserted vicarious liability claims against the owner of the car.

$15.8 Million Jury Award Reduced in Wellington Family’s Wrongful Death Case: Wisekal v. Laboratory Corp. of America Holdings

Published on: August 7, 2014 | by Friedman Rodman Frank & Estrada, P.A.

The United States District Court for the Southern District of Florida has overturned a jury’s award of approximately $15.8 million in non-economic damages in a wrongful death lawsuit. In Wisekal v. Laboratory Corp. of America Holdings, a laboratory processed two cancer screening tests for a Wellington woman over the course of two years. Although both tests returned a negative result, the woman went to a hospital emergency room for pain and learned she had a large cancerous tumor. She later died as a result of the cancer, and her estate filed a wrongful death lawsuit against both the laboratory and the cytotechnologist who examined the woman’s laboratory specimen in federal court. Following trial, a jury awarded the woman’s estate over $20 million in economic and non-economic damages. Since the jurors determined the woman was 25 percent at fault for her death, the final award was reduced by one-quarter.

In response to the jury’s multi-million dollar award, the defendants filed a motion for remittitur or a new trial on the issue of damages. When a party to a lawsuit files a motion for remittitur, the party is asking the judge to reduce the amount of a jury’s verdict because it was excessive based upon the facts of the case. The Southern District of Florida first said the evidence offered at trial reasonably supported the jury’s award for lost earnings and other economic damages. Next, the court examined the defendants’ claim that $20 million in non-economic damages such as loss of companionship for the woman’s surviving family members was too high. Although the federal court disagreed with the defendants’ argument that the jury award could only have resulted from passion or prejudice, the Southern District of Florida held that the non-economic damages award was not logically supported by the evidence offered at trial.

Florida law requires that a non-economic damages award must be reasonably related to both the facts of a case and the general trend in similar cases. When determining whether a jury’s award was excessive, a court applying Florida law must determine if it was the result of prejudice or passion, if the jurors ignored any relevant evidence, if the award was derived through speculation and conjecture, if the award was reasonably related to the injured party’s damages suffered, and if reasonable people could have arrived at the same damages award based upon the evidence. Since the jury’s non-economic damages award was excessive when compared to similar wrongful death cases, and there was no evidence offered to support such a large award, the court granted the defendants’ motion for remittitur on the issue of non-economic damages. The Southern District of Florida reduced the non-economic damages in the case to $5 million before the deceased woman’s comparative fault was taken into account. The court also ordered a new trial on the issue of non-economic damages, should the woman’s estate refuse to accept the reduced award.