Wrongful Death

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.

Florida Appeals Court Affirms Jury Decision in Wrongful Death Case Against Tobacco Companies: Philip Morris USA Inc. v. Buchanan

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

Florida’s First District Court of Appeals has affirmed a wrongful death judgment entered against two tobacco companies. In Philip Morris USA Inc. v. Buchanan, the personal representative of a deceased man sued both Philip Morris and the Liggett Group over her husband’s wrongful death. After jurors entered judgment against the defendant tobacco companies, the businesses appealed the decision to the First District Court of Appeal.

According to the tobacco companies, the lower court should not have limited their access to cross-examine the man’s wife regarding the brand of cigarettes he smoked at trial. Since the defendant tobacco companies stipulated that the decedent only infrequently smoked other brands of cigarettes, the appeals court found that the trial court appropriately exercised its discretion when it limited cross-examination regarding the matter. The court added that the decision to limit cross-examination related to the issue served to limit confusion. Additionally, since the tobacco companies were permitted to discuss inconsistencies between the woman’s sworn testimony and her other evidentiary statements, Florida’s First District held that cross-examination was not required for impeachment purposes.

Next, the appeals court addressed the defendants’ claim that a particular jury instruction was improperly denied. According to the tobacco companies, the trial court committed error when it refused to provide jurors with a proposed jury instruction on the statute of repose. After stating the proffered instruction for jurors was not an accurate statement of the law, the appellate court dismissed the defendants’ argument. Finally, the Florida court rejected the defendants’ assertion that Florida Supreme Court and other precedent barred the woman’s wrongful death claim and certified that its decision conflicted with an earlier decision entered by Florida’s Fourth District Court of Appeals. In June 2013, however, the Supreme Court of Florida agreed to review that appellate court decision.

Unconscionable Arbitration Agreements for Florida Nursing Homes

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

In a recent case, a healthcare and rehabilitation center appealed a trial court’s order denying its motion to dismiss and compel arbitration. The case arose out of a case in which a wife admitted her husband to the rehabilitation center’s nursing facility in accord with a durable power of attorney he had signed. He lived there for two years. Days after he was discharged, the husband died.

The wife sued as personal representative of his state for violating his nursing home residents’ rights, negligence and wrongful death. The nursing facility moved to compel arbitration. The wife had signed an arbitration agreement when her husband was admitted. Signing the arbitration agreement was a condition of being admitted into the nursing home.

The trial court, however, denied the nursing facility’s motion to compel arbitration. It found that the durable power of attorney did not give the wife authority to sign the arbitration agreement on behalf of her husband. It also found the agreement was substantively unconscionable because the estate didn’t have the ability to pay arbitration costs, and that is was procedurally unconscionable in the way the agreement was presented to the wife.

Victory for Medical Malpractice Wrongful Death Claimants

Published on: March 17, 2014 | by Friedman Rodman Frank & Estrada, P.A.

Recently, the Florida Supreme Court issued a major decision regarding statutory caps on non-economic damages in medical malpractice cases. The case arose when a 20-year-old pregnant woman, the dependent of someone in the Air Force, was admitted to a government medical center with severe preeclampsia. The doctors induced labor and she delivered her child vaginally. However, she lost a lot of blood and didn’t deliver the placenta. She went into shock and cardiac arrest, lost consciousness and died.

Through her estate, her parents and her baby’s father sued for wrongful death and medical malpractice against the United States in the United States District Court for the Northern District of Florida. At a bench trial, the court determined that their economic damages were $980,462.30. Their noneconomic damages (items such as pain and suffering) were $2 million. The district court relying upon section 766.118(2), which covers wrongful death noneconomic damages, capped the damages at $1 million.

The plaintiffs appealed to the Eleventh Circuit Court of Appeals, which affirmed the application of the cap. The appellate court ruled there was no controlling precedent and therefore certified four questions of law for the Florida Supreme Court to answer. These questions included whether the cap violated due process under the Florida Constitution, whether it violated the right of access to the courts, whether it violated the right to trial by jury, and whether it violated separation of powers.

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.

Evidence of Drug Use in Florida Wrongful Death Cases

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

Tragically, many car accident fatalities occur because of drug or alcohol intoxication. Under what circumstances does evidence of drug or alcohol intoxication stay out of a trial proceeding? A recent case illustrates how a defendant can keep evidence of intoxication from the jury by admitting liability.

The case arose when a city employee was standing at the rear of a city vehicle parked in a median area of the road, and was hit by a truck driver who crashed into him. The employee died immediately.

The deceased’s representative sued the other driver for wrongful death and asked the court for compensatory damages for the man’s widow and both compensatory and punitive damages for the estate. The final judgment against the other driver was more than $6 million. The other driver/defendant appealed.

Is There Liability for Freak Accidents in Florida?

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

In a 2010 case, the appellate court considered whether summary judgment was proper in a wrongful death lawsuit. The case arose when a man drowned while a floating dock was being installed at property owned by Walt Disney World. He was employed by a water sports concession located at a Disney resort. His company contracted with a plumbing and heating company to install a floating dock system to facilitate personal watercraft rentals.

The water sports concession wasn’t familiar with assembly of a floating dock system. Accordingly, a plumbing company employee agreed to oversee the installation and show the water sports employees how to do it.

The man agreed to have delivery of certain sections to the resort. The entire dock could have been assembled on dry land, but not all of the pieces arrived at the same time. The plumbing supervisor and water sports employees assembled those parts that were available. A Disney ferry put it out on the lake. The plumbing supervisor’s plan was to add the two missing sections with a special tool that wouldn’t require anybody to go in the water.

Security Guard Negligence in Florida

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

Interesting questions are presented in cases in which a security guard is negligent, leading to personal injuries or even death. Is the guard responsible for intentional misconduct by another person? In a recent case, a woman was murdered at her home in a gated community by a burglar. The community was a six-street neighborhood that was surrounded by a golf course and a lake. Guards were stationed there 24-hours a day. While one guard stayed at the guardhouse, the other moved around the property in a vehicle.

At the time of the murder, the patrolling guard was supposed to be continuously patrolling, checking into various checkpoints to show he was patrolling appropriately. The police caught the murderer. In his sworn confession, he said he had entered the community by bicycle on an open pedestrian path. He didn’t know the victim before that night. He saw there was a small open window and cut the screen from that window. Although the screen had security wires, the alarm company had improperly installed the alarm, so the alarm didn’t go off.

The murderer was stealing credit cards and other things, and ran into the victim. He strangled her. The estate and the alarm company settled. At trial, the estate proceeded against the security service. The estate’s expert testified that “continuously” meant that the guard should have been moving continually. The guard had failed to do that based on data from the checkpoints.

Florida School Not Liable for Personal Injuries After School Hours

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

In a recent case an appellate court reviewed a high school’s liability in the death of a student and catastrophic injury of another after consuming excessive alcohol at a private home.

The case arose when students received copies of a somewhat unintelligible invitation to an end-of-the-year party at a home that was miles away from school. The invitation specified it was for students from that high school only.

The cards had nothing to do with the school, although they referenced it. The morning before the party the principal questioned the two students throwing the party. They told him their parents would at the party. The principal also read an announcement to the student body that implied it might squelch the party.