South Florida Personal Injury Lawyers Blog

The Presuit Requirements for a Florida Medical Negligence Lawsuit

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

Florida medical malpractice claims require claimants to demonstrate that their medical provider made an error that fell below the “prevailing professional standard of care.” This standard of care varies depending on the provider’s specific care, skill, surrounding circumstances and incident. Thus, courts view the prevailing standard of care in light of the unique circumstances of the particular situation. Further, medical malpractice claims require claimants to establish causation. Even if a provider’s standard of care fell below the prevailing standard, claimants must still prove that the mistake was not inconsequential.

Medical malpractice can stem from a variety of situations. Under Florida law, misdiagnosis, surgical errors, failure to treat, anesthesia errors, medication errors, and specialist malpractice can precipitate a medical malpractice lawsuit. However, successfully recovering damages requires strict adherence to Florida’s various medical malpractice procedural and evidentiary laws.

The Supreme Court of Florida recently considered the statutory presuit notice requirement under section 766.106. In this case, the plaintiff mailed the notice before the expiration of the limitations period; however, the defendant did not receive the notice until after the period would have expired, absent tolling. At issue is whether the statute of limitations is tolled upon the claimant’s mailing of the presuit notice of intent to begin litigation.

Vicarious Liability for Florida Loaner Vehicle Accidents

Published on: April 23, 2022 | by Friedman Rodman Frank & Estrada, P.A.

Recently, the Eleventh Circuit issued an opinion addressing a Florida car accident involving a loaner vehicle. The defendant owns a car dealership that operates a service department. Under the car dealership’s protocol, the dealership provides customers with loaner vehicles while their cars are undergoing service. The current incident arose following a situation when the defendant’s customer caused an accident while using a loaner vehicle from the dealership. The accident victim filed a lawsuit against the dealership for vicarious liability under Florida’s dangerous instrumentality doctrine.

At issue on appeal was (1) whether the defendant rented or leased the vehicle and (2) whether summary judgment was improper because the defendant used conflicting labels for the vehicle. In reviewing the case, the court analyzed the Graves amendment. Under the Graves Amendment, generally, a motor vehicle owner who rents or leases the vehicle to a person shall not be liable under the law for harm that results from the use, operation, or possession of the vehicle during the rental period if the owner is engaged in the trade or business of renting or leasing motor vehicles; and (2) there is no negligence or criminal wrongdoing on the part of the owner.

The plaintiff argued that summary judgment in favor of the defendant was improper because the agreement referred to the vehicle as both a “rental” and a “loaner .”Further, the plaintiff argued that the agreement did not contain consideration because there was no payment of money to the loaner. The court first held that the consideration in the agreement was that the driver agreed to bring their car and pay for repairs in exchange for the use of a loaner vehicle. Second, the court further held that whatever label the defendant happened to assign to the car, be it a “loaner” or “rental,” did not control. Instead, the substance of the transaction, not the labels, controls the transaction. Thus, the court held that the defendant enjoyed the protection of the Graves Amendment.

Proof of Loss Requirement for Florida Home Insurance Claims

Published on: April 23, 2022 | by Friedman Rodman Frank & Estrada, P.A.

Florida insurance companies review thousands of property damages claims a year. In an effort to expedite claims, companies require claimants to abide by various requirements. Many companies enforce a requirement to provide “sworn proof of loss.” Insurance companies claim that requirement allows them to assess claims quickly and fairly. Issues often arise when a claimant suffers a loss but fails to abide by the proof of loss requirement.

Several Florida cases address lawsuits involving a claimant’s failure to provide a sworn proof of loss. Together the cases hold that if a claimant files a lawsuit against an insurance company before submitting a required sworn proof of loss, the company is relieved of its duties under the policy, thus barring the lawsuit. However, if the claimant submits the proof of loss untimely, but before filing a lawsuit, courts will permit the lawsuits and determine whether the delay prejudiced the company.

Recently, a Florida appeals court issued an opinion addressing a case involving an untimely sworn proof of loss. The homeowner purchased an insurance policy from the company in 2017. A condition of the policy was that the insurance company had “no duty to provide coverage under this policy if the failure to comply with the following duties is prejudicial to us.” The homeowner appealed the lower court’s summary judgment ruling in favor of her home insurance company. At issue is a policy that requires the claimant to send a sworn proof of loss to the company within sixty days of the company’s request.

How Comparative Negligence Affects Your Pedestrian Accident Claim

Published on: April 16, 2022 | by Friedman Rodman Frank & Estrada, P.A.

Florida pedestrian accidents are a serious public safety concern for all road users. These accidents can result in fatalities and severe injuries that require lifelong care. The National Highway Traffic Safety Administration (“NHTSA”) studied pedestrian accidents to address these safety concerns and minimize serious injuries. The study defines a pedestrian as any “person on foot, walking, running, jogging, hiking, sitting, or lying down .”Key findings of the study revealed that Florida was in the top three states with the highest number of pedestrian fatalities. These harrowing statistics highlight the importance of pedestrian and driver safety.

The study also found that pedestrian deaths account for about 17 percent of all traffic fatalities and 3 percent of all people who suffer injuries in traffic crashes. Further, alcohol involvement for the driver or pedestrian was reported in nearly 50 percent of fatal pedestrian crashes. Finally, hit-and-run accidents account for one of every five pedestrian fatalities.

Recently, authorities reported on a fatal Florida pedestrian accident. According to the crash report, a driver was traveling east when he hit a man crossing the road at an unmarked point. Generally, pedestrians have the right-of-way when moving along a marked or unmarked crosswalk in Florida. However, if a traffic signal alerts the pedestrian to wait to cross, they do not have the right-of-way until the sign indicates.

Excess Judgments Under Florida Bad-Faith Insurance Laws

Published on: April 16, 2022 | by Friedman Rodman Frank & Estrada, P.A.

Under Florida law, those who bring a bad-faith claim against an insurance company for failing to settle a lawsuit must prove various elements. One element involves establishing that the insurance company’s conduct caused the insured’s loss. There are different ways to demonstrate this requisite caution element. One such method is by providing evidence that the insured experienced an “excess judgment” because of the company’s actions.

Typically, excess judgments must exist for the court to have jurisdiction to hear a Florida bad faith insurance claim. Excess judgments refer to instances when a judgment in a case is for a higher amount than the insured party has under their insurance policy limit. Excess judgments leave the at-fault party personally liable to the victim for their losses in these situations. Further, it fails to fully compensate the injury victim for damages because individual parties often lack the funds to pay a claim.

Bad faith arises when the insurance company owes the insured a duty, and the company breaches the duty, and because of the breach, an injury occurs. While Florida law requires insurance companies to settle a case where a reasonably prudent person would do so, mere negligence does not amount to bad faith.

Florida Court Issues Personal Injury Opinion Discussing Aggravation of Existing Injuries

Published on: April 8, 2022 | by Friedman Rodman Frank & Estrada, P.A.

Preexisting injury and conditions refer to a person’s medical state before an accident they are making a claim about. In the context of a Florida accident, victims may face challenges recovering compensation after they suffer aggravation to an existing injury. At-fault parties may refute liability and responsibility for damages by arguing that the victim’s injuries were unrelated to the accident.

Accident victims with preexisting conditions should consult with an attorney to ensure that they recover the compensation they deserve. An attorney can collect relevant evidence and present a compelling case for damages. The failure to gather relevant evidence such as medical records, expert witness testimony, and employment records may limit the amount a person can recover.

For example, a Florida district court recently issued a decision in an appeal involving a Florida uninsured motorist claim. According to the record, the injury victim suffered injuries in a collision between her car and another vehicle. She contended that the accident and her injuries were caused by an uninsured/underinsured motorist (“UM”). The insurance company appealed the trial court’s order that allowed the victim to argue and present evidence for aggravation of preexisting injuries.

Florida Theme Park Injuries and Fatalities

Published on: April 8, 2022 | by Friedman Rodman Frank & Estrada, P.A.

Florida is an international hub for some of the world’s most well-known amusement parks. While various governmental entities issue guidance and regulations regarding amusement park safety, many rides pose inherent risks. Although most amusement park-goers sign release of liability waivers in the event of an accident or injury, these waivers are not iron-clad. In some instances, injury victims may still pursue claims against a negligent amusement park.

Recently, a 14-year-old boy fell to his death at Florida’s ICON Park. The teenager fell from a FreeFall drop tower ride, which transports riders up and then drops them about 400 feet at speeds exceeding 75 mph. According to authorities, the 14-year-old weighed more than 300 pounds and stood nearly 6-feet, 5-inches tall. The ride’s operations manual states that the maximum passenger weight is about 287 pounds. The manual further states that ride operators should use care when seating large guests. Operators should confirm that the passenger fits within the contours of the seat and brackets. In this case, the employee operating the ride at the time of the incident completed training at the end of February.

Moreover, safety officials visually inspected the ride in a “non-destructive test.” Reports indicate the ride met Florida’s qualifications. The Florida Department of Agriculture and Consumer Services is working with the sheriff’s office to investigate the incident and make changes to protect amusement park patrons.

The “Going and Coming” Rule Under Florida Workers’ Compensation Law

Published on: March 31, 2022 | by Friedman Rodman Frank & Estrada, P.A.

The District Court of Appeal recently issued an opinion stemming from an employee’s appeal of his Florida workers’ compensation claim. The employee worked as a baggage handler for a major airline when the accident occurred. On the day of the incident, the claimant clocked out walked through security toward a parking lot shuttle bus stop when he injured his calf stepping off of the curb. The claimant reported the accident to his superiors and visited an on-site medical clinic the next day. The clinic workers provided the claimant with pain medications, crutches, a boot, and a prescription for an MRI. After his MRI, providers referred him to an orthopedist. His employer and later the Judge of Compensation Claims (JCC) denied his claim for benefits.

On appeal, amongst several issues, the claimant argued that the JCC improperly applied the “going or coming” statute under § 440.092(2). The statute typically precludes workers’ compensation benefits for injuries while an employee is commuting to or from work. Under the law, injuries occurring while going or coming to work are not an injury “arising in and out of” or under the “course and scope of” employment. This preclusion applies whether or not the employer-provided transportation if transportation was available for exclusive personal use by the employee. An exception applies if the employee was on a “special mission” for the employer.

The employee argues that the statute does not apply in his case. Instead, he cites the premises rule. Under the premises rule, an employee with fixed hours and place of work who suffers injuries while going to or from work is in the course of employment if it happened on the employer’s premises. He contends that the injury occurred while traveling the area between two parts of his employer’s premises. In support, he purports that the public areas between his job site and the parking lot are part of the regularly used premises of the employer.

Florida Assault and Battery Claims Under the Civil System

Published on: March 31, 2022 | by Friedman Rodman Frank & Estrada, P.A.

In some instances, those who suffer injuries from an intentional act may seek financial compensation from their attackers. Under Florida law, assault and battery victims may file a civil claim against the at-fault party similar to victims of traffic accidents, trip-and-falls, or other accidents in which they suffer harm. These claims are unique in that, unlike many other civil claims, these cases involve an intentional act by the assailant. Florida courts address assault and battery as separate claims, even though they often co-occur.

Assault refers to an intentional unlawful threat to physically hurt another. The threat can stem from the threatening party’s apparent ability to act upon their actions, words, or combination. Aggravated assault tends to involve using a deadly weapon to instill fear in the victim. Deadly weapons can be any mechanism that can inflict serious bodily injury upon a victim, such as a gun, knife, taser, or similar item.

These cases hinge on the claimant’s ability to establish that the threatening party demonstrated a clear intent to inflict harm. An attorney can assist claimants in gathering evidence and preparing a compelling case that illustrates that the threatening party instilled fear. Recently, the Third District Court of Appeals issued an opinion in an appeal of a Florida civil assault claim. The relevant background explains that a couple lived together in an apartment complex when they met with the property manager to discuss renewing the lease in the primary tenant’s name. A disagreement ensued, and the plaintiffs contended that the property manager pulled out a gun and placed it on a table in front of the claimants explaining that he would be vacating their lease.

Florida Bad Faith Insurance Dispute Over Delayed Appraisal Awards

Published on: March 25, 2022 | by Friedman Rodman Frank & Estrada, P.A.

The District Court of Appeal issued an opinion in favor of a homeowner’s in a Florida bad faith insurance dispute. According to the record, lightning struck the homeowner’s residence in July 2009, causing serious property damage. The owner filed a claim with his insurance provider, who determined the amount of loss and made payments over eight years. However, in 2017 the homeowner disputed the paid amount, and the insurance company invoked the appraisal provision. While the appraisal process was ongoing, the owner filed a notice of his intent to file a bad faith claim against the insurance company. Amongst several claims, the insurance company argued that the sixty-day cure period was tolled pending the appraisal award and payment cured the bad faith allegations.

Under Florida law, insurance companies maintain two distinct duties: contractual and statutory. As such, first, they must timely evaluate and pay benefits. In most cases, the insurance policy conditions dictate how the parties must proceed before an insurer fulfills a claim. For example, as is the case in this situation, the provider might maintain the right to invoke an appraisal.

Second, they must act in reasonably good faith in evaluating claims. If a party experiences damages by an insurance company’s failure to comply, they may pursue civil action against the company.