South Florida Personal Injury Lawyers Blog

Florida Appellate Court Rejects Gross Negligence Claim in Workplace Injury Case

Published on: July 26, 2022 | by Friedman Rodman Frank & Estrada, P.A.

If a worker is injured on the job, there may be many avenues of relief for them to receive treatment and compensation. In the event of a purely accidental injury, the first line of coverage for an injured worker is workers’ compensation insurance. This insurance will pay for treatment and lost work expenses for an injured employee of the policyholder. Workers’ compensation coverage is desirable because it covers injured employees regardless of fault. Workers’ compensation coverage does not generally pay out as much as would a negligent or intentional tort claim.

In Florida, an injured worker may be able to pursue a personal injury claim against their employer or any other negligent party who caused the worker’s injuries. A personal injury claim may include higher amounts of damages for things like disability/disfigurement, pain and suffering, and other special damages. Because personal injury claims allow larger awards than workers’ compensation claims, injured Florida plaintiffs may want to pursue a personal injury claim instead of a worker’s compensation claim when appropriate. The Florida Court of Appeals recently rejected an injured plaintiff’s attempt to recover damages for her workplace injury through a personal injury claim.

The plaintiff in the recently decided case was the project manager for one construction company on a construction site. Employees for the defendant, another subcontractor on the job, moved a staircase from in front of the plaintiff’s trailer and failed to return it before leaving. After the plaintiff arrived at her trailer in the early morning, she didn’t see the missing staircase, fell over 3 feet, and was injured. The plaintiff pursued a worker’s compensation claim with her employer as well as a personal injury claim against the company that employed the workers who moved the staircase.

Florida Correctional Officer Pursues Workers’ Compensation for Cardiac Event

Published on: July 26, 2022 | by Friedman Rodman Frank & Estrada, P.A.

Recently, the First District Court of Appeals in Florida issued an opinion in an appeal involving a workers’ compensation claim from a correctional officer who suffered a cardiac arrest. According to the record, while the Bradford County Sheriff’s Office (BCSO) initially accepted compensability under Florida’s “pay-and-investigate” law, the BCSO later denied the claim. The correctional officer countered the denial, stating his claim was valid under the so-called “Heart-Lung” statute, which creates a presumption in favor of firefighters, police officers, correctional officers, and others that any “condition or impairment” that is “caused by tuberculosis, heart disease, or hypertension resulting in total or partial disability or death shall be presumed to have been accidental and to have been suffered in the line of duty unless the contrary [is] shown by competent evidence.”

The judge of compensation claims (JCC) denied his claims, reasoning that the correctional officer “must have successfully passed the physical examination required by this subsection upon entering into service as a . . . correctional officer . . . with the employing agency, which examination must have failed to reveal any evidence of tuberculosis, heart disease, or hypertension.” While the JCC found that the correctional officer did not successfully pass a physical examination upon entering service as a correctional officer, that was due to the fact that the BCSO does not require correctional officers that were previously working part-time to take a physical examination upon beginning service as full-time correctional officers. The plaintiff passed a physical examination when he initially began work as a part-time correctional officer.

In fact, in a dissenting opinion, it is highlighted that the employer, BCSO, failed to require and affirmatively disavowed the need for a renewed physical examination for the plaintiff or any part-time correctional officer who is promoted to full-time employment. BCSO’s policy affirmatively prevents the physical examination required by statute. The dissenting opinion states that, by failing to either require an additional test when part-time correctional officers begin service as full-time correctional officers or by disavowing the need for a renewed physical examination, the BCSO forfeits the ability to contest the statutory presumption that would otherwise arise in this matter.

Florida Insurance Companies Must Act in Good Faith to Settle Your Accident Claim

Published on: July 18, 2022 | by Friedman Rodman Frank & Estrada, P.A.

Accident victims in Florida who have worked with insurance companies probably understand how difficult it can be to get an insurance company to honor a claim. While insurance companies are notorious for making the claims process cumbersome and difficult, they still hold a duty to negotiate and attempt to settle a claim in good faith. A federal appellate court recently reversed a jury verdict that was in favor of an insurance company because the jury had not been properly instructed considering the good faith requirement.

According to the facts discussed in the appellate opinion, the plaintiff in the recently decided case is a man who was injured several years ago in a motorcycle accident. The plaintiff retained a personal injury attorney shortly after the accident, but communication was spotty between his counsel and the defendant. Months later, the plaintiff’s counsel sent a settlement offer to the defendant. The defendant did not communicate with their client about the settlement offer, and the plaintiff sued the driver and policyholder personally, obtaining over a $12 million verdict at trial.

After the initial trial, the plaintiff sued the insurance company directly, seeking to collect the $12 million judgment from them. The plaintiff argued that the defendant failed to act in good faith when considering the settlement offer, as required under Florida law. Specifically, the plaintiff alleged that the defendant’s failure to consult or advise their client of the settlement offer, or the consequences of a much larger trial verdict, constituted bad faith. After the parties presented their cases at trial, the plaintiff proposed a jury instruction explaining the requirements for a finding of bad faith, but the trial court rejected the instruction. The jury returned a verdict in favor of the defendant, and the plaintiff appealed the jury instruction issue to the U.S. Court of Appeals.

Properly Investigating a Florida Medical Malpractice Claim Before Filing Suit

Published on: July 18, 2022 | by Friedman Rodman Frank & Estrada, P.A.

Victims of medical malpractice in Florida must comply with strict procedural requirements before being allowed to file a medical malpractice lawsuit. Florida law demands that a plaintiff complaining of medical malpractice perform an investigation into the reasonableness of their claim before pursuing legal action. Florida medical malpractice plaintiffs must submit a statement by a medical expert corroborating the reasonableness of the plaintiff’s malpractice claim. A plaintiff who fails to properly obtain and append such a report to their claim runs the risk of having the claim dismissed before being heard by the court. A Florida Court of Appeals recently ruled against a plaintiff on these grounds.

The plaintiff in the recently decided case is a woman who received care from the defendant in a Florida hospital complaining of abdominal pain. The plaintiff alleges that the defendant inappropriately discharged her before she obtained the needed treatment, causing her condition to worsen and eventually require surgery. The plaintiff pursued a medical malpractice claim against the defendant. As part of the pre-suit investigation process, the plaintiff obtained a statement from a gastroenterologist that corroborated the reasonableness of her claim. In response, the defendant argued that the plaintiff’s expert was not qualified because they did not work in a hospital setting. The trial judge denied the defendant’s arguments without putting any reasoning on the record, and the plaintiff’s case was set to proceed.

The defendant appealed the denial of their motion to the Florida Court of Appeals. On Appeal, the court noted that it is a statutory requirement for a trial court to put their reasoning on the record when accepting a medical expert opinion for purposes of the pre-suit investigation requirements for a Florida malpractice claim. Because the court’s ruling was not explained in the record, the Court of Appeals reversed the ruling and remanded the case to the trial court. Under this ruling, the plaintiff still may obtain relief, however, the ruling does make the process more timely and complicated.

The Impact of Jackknifing Truck Accidents

Published on: July 1, 2022 | by Friedman Rodman Frank & Estrada, P.A.

Truck accidents are a common everyday occurrence and can, unfortunately, lead to not only road closures, but devastating injuries for the parties involved. In 2019, according to the National Highway Traffic Safety Administration (NHTSA), there were 5,005 people killed and an estimated 159,000 people injured in crashes involving large trucks. NHTSA also found that approximately 10 percent of combination truck occupant (commonly known as semi-trucks or trucks with one or more trailers) fatalities are associated with jackknifing.

Jackknifing is a term that is used to describe a situation where a large truck skids and the trailer attached to the truck swings, or folds in an angle that resembles a folding pocket knife. Jackknifing accidents are considered one of the most common types of trucking accidents and can be caused by various factors. These factors may include, but are not limited to, speeding, turning too quickly, improper loading, or driving in bad weather conditions when there are slippery roads.

For example, in a recent news report, a big rig was traveling in the center lane when a tractor-trailer hit the left rear of another big rig in the outside lane. As a result, the first big rig jackknifed in the center and outside lanes, while the second big rig ended up in the outside lane and shoulder. The driver of one of the big rigs was taken to a hospital with serious injuries, while the driver of the other big rig had minor injuries.

Florida Wrongful Death Claims Involving Suicide

Published on: July 1, 2022 | by Friedman Rodman Frank & Estrada, P.A.

Dealing with the preventable death of a loved one is one of life’s most challenging burdens. Under Florida’s wrongful death statute, individuals or entities who acted negligently or recklessly in causing another’s death may be liable for the damages they caused. The state’s statute allows the deceased person’s survivors a mechanism to secure compensation for the death of their family members. However, these cases require a comprehensive understanding of the state’s complex evidentiary and procedural laws. An experienced Florida wrongful death attorney can represent family members in their wrongful death claims.

A recent Florida wrongful death appeal highlights the onerous burdens that many plaintiffs encounter when pursuing these cases. The Third District Court of Appeal issued an opinion addressing the dismissal of a wrongful death complaint involving an uninsured motorist. According to the record, the uninsured motorist collided with another motorist, rendering that motorist permanently disabled. After several years of litigation, the motorist died by suicide.

As the personal representative of the motorist’s estate, the motorist’s brother brought a wrongful death lawsuit against some of the motorist’s former attorneys. According to the complaint, the brother alleged that the attorneys’ negligence and legal malpractice were the proximate cause of his brother’s death. Specifically, the plaintiff argued that the attorneys’ failure to render reasonable care and professional skill prevented him from having the ability to pay for treatment and medication and caused him to experience pain and suffering that ultimately led to his suicide.

The Limits of Strict Liability in Florida Defective Product Cases

Published on: June 26, 2022 | by Friedman Rodman Frank & Estrada, P.A.

Companies or individuals that manufacture, market, or distribute consumer products in Florida have a duty to ensure that the products are safe for public use. If a person is injured or killed while using a dangerous product, the companies who manufactured or sold the product may be liable for damages stemming from the incident, however, many exceptions apply to this theory of liability. The Florida Court of Appeal recently denied a plaintiff’s claim against the manufacturer of a computer duster product that was misused and resulted in a car accident that injured the plaintiff.

The plaintiff in the recently decided case is a man who was injured when a driver lost control of her vehicle and crashed into cars parked in his driveway, pinning him under a vehicle and resulting in serious injury. According to the facts discussed in the appellate opinion, the woman driving had recently purchased and inhaled a can of computer duster manufactured by the defendant corporation and sold by Walmart (also a defendant in the case). The woman admitted to using the computer duster to “get high,” and was charged with a felony DUI offense after the crash.

The accident victim sued the driver for negligence based on the injuries he suffered in the crash, and also sued both Walmart and the product manufacturer for designing, marketing, and selling a dangerous product. Using a strict liability theory of negligence, the plaintiff claimed that the manufacturer and seller of the computer duster could be held accountable for reasonably foreseeable conduct that resulted from selling the product, namely that it could be abused as an intoxicant. In response to the plaintiff’s claim, the defendants disputed their liability for the crash, arguing that strict liability should only apply if a person is using the product as intended by the manufacturer.

How Florida’s “Dangerous Instrumentality Doctrine” Affects Liability for Car Accidents

Published on: June 26, 2022 | by Friedman Rodman Frank & Estrada, P.A.

When a Florida driver acts negligently and causes a car accident, it is well understood that that driver (or their insurance company) will be liable for damages caused by the accident. In some states, including Florida, the owner of an automobile can also be held accountable for damages caused in an accident when someone else was driving the car. This vicarious liability is enabled by a legal doctrine that has been in effect in Florida for over 100 years. Under this “dangerous instrumentality doctrine” A car owner can be held liable for damages caused by a negligent driver that had borrowed their car. Although this legal theory has faced resistance and challenges since its enactment, it remains the law. The Florida Court of Appeal recently affirmed the validity of the dangerous instrumentality doctrine in a recently published decision.

The plaintiff in the recently decided case was a man who intervened in a domestic dispute between the defendant and her son, who were his neighbors. According to the facts discussed in the appellate opinion, the plaintiff approached the defendant’s son, who appeared to be escalating the violent situation, and attempted to calm him down. After a further altercation, the defendant’s son got into the defendant’s car and ran over the plaintiff, causing serious injury. The defendant’s son was charged with several crimes for his actions.

Separate from the criminal charges filed against the defendant’s son the plaintiff sought civil relief from both the plaintiff and her son by pursuing a negligence lawsuit. The plaintiff argued that under the dangerous instrumentality doctrine, the defendant should be held responsible for the damages caused by her son after she let him use the vehicle. The trial court denied the plaintiff’s claims, finding that because the defendant’s son’s conduct was intentional, not negligent, the plaintiff could not be held liable for the damages.

Tragic Florida Crash Kills Four People, Including a Five-Year-Old Girl

Published on: June 20, 2022 | by Friedman Rodman Frank & Estrada, P.A.

In the past few decades, trucks and SUVs have become extremely popular with families and daily drivers. Many people choose to buy a large vehicle because they believe that it would be safer in the event of a crash. Although large vehicles do fare better when colliding with smaller vehicles, there are also increased dangers that apply to using a large vehicle for transportation. Notably, trucks and SUVs with high ground clearance can be harder to maneuver around turns, especially when traveling at a high rate of speed. This can result in loss of control and a rollover. A recent single-vehicle accident in Clermont, FL may demonstrate this fact.

According to the facts discussed in a local news story reporting on the crash, a truck containing four people was traveling southbound on County Road 561 in Clermont when the driver failed to properly navigate a curve. The vehicle left the shoulder, tipped over, and rolled down an embankment, striking a tree. When authorities arrived at the scene, all four of the vehicle occupants were dead, including a five-year-old girl. According to law enforcement officers quoted in the report, none of the three adult occupants were wearing seatbelts, and the child was not secured in a car seat. It’s impossible to know if the accident result would have been different if the occupants were using their seatbelts, but it’s reasonable to assume that some or all of the occupants may have survived if they were properly restrained.

Accident victims who are injured or killed in a crash and were not wearing a seatbelt may face obstacles in obtaining full compensation for their injuries. Failure to follow traffic laws, such as Florida’s law that mandates all front-seat passengers and children under 18 must wear a seatbelt, can be seen as an act of negligence on the part of the injured victim. Florida is a state that utilizes the “comparative negligence” theory of liability. This means that an accident victim may have their damage award reduced if the victim contributed to the cause of the accident or the severity of their injuries. Under this framework, an injured passenger who was not wearing a seatbelt may not receive the same damage award they would be entitled to if they were wearing a seatbelt. Because of this, it is advisable for all Florida drivers to properly use safety equipment and follow traffic laws while on the road.

Woman Killed after High Winds Trigger Tragic Parasailing Accident

Published on: June 20, 2022 | by Friedman Rodman Frank & Estrada, P.A.

Water sports and other outdoor recreational activities play a significant role in Florida’s economy and help make our state desirable for tourists and locals alike. Many water sports, especially the motorized type, carry risks inherent to the sport itself. Consumers seeking to participate in a sporting activity facilitated by a private company are usually required to agree to a liability waiver to disclaim the company from legal liability in the event a customer is injured or killed while participating in the activity. An Illinois woman recently died in an accident that occurred on a parasailing excursion that was organized by a Florida company.

According to the facts discussed in a local news report covering the tragedy, the woman and her two sons decided to go parasailing on Memorial Day near Pigeon Key with the company Lighthouse Parasail Inc., based out of Marathon, FL. Parasailing is an activity where one or more people are attached to a parachute, which is tethered to a boat. As the boat accelerates, the parachute fills with air, and the parasailers fly above the water, similar to a large kite being flown from a moving boat. While the mother and her two sons were parasailing, winds picked up and resulted in the cable snapping and the parasailers flying away from the boat without guidance.

Shortly after the parasailers broke free from the boat, the winds pushed them toward the Old Seven Mile Bridge, eventually smashing the three parasailers into a wall portion of the bridge. Bystanders arrived to render aid and free the parasailers from the chute and bridge cables. The mother was pronounced dead at the scene, with the two boys each suffered moderate injuries. While the crash is still under investigation, preliminary reports blame the unexpected weather.