South Florida Personal Injury Lawyers Blog

Florida Appeals Court Reverses Lower Court Decision in Worker Compensation Case

Published on: February 15, 2023 | by Friedman, Rodman & Frank, P.A.

In a recent case, the First District Court of Appeals in Florida issued an opinion in an appeal involving a claim for authorization of a physician in a worker compensation case between an employee, the Claimant, and the Employer/Carrier (E/C). The Claimant sued the E/C following the E/C disregarding his request for a one-time change under section 440.13(2)(f). The Judge of Compensation Claims (JCC), denied his claim for authorization of the physician and found that the E/C’s waiver defense was tried by consent.

The Claimant suffered a compensable accident on August 21, 2018, and benefits were subsequently initiated. On June 20, 2019, the Claimant sent a written request to the E/C exercising his right to a one-time change under section 440.13(2)(f), and the E/C failed to respond. On July 2, 2019, the Claimant filed a Petition for Benefits (PFB), asserting his entitlement to the one-time change and requesting enforcement of that right. The E/C filed a response agreeing to the one-time change and naming Dr. Feiertag as the alternative physician twenty-seven days after the Claimant filed the first PFB. The Claimant did not attend the appointment and subsequently voluntarily dismissed the first PFB, later explaining that he was concerned with avoiding litigation and “rocking the boat” with his employer. On July 28, 2020, the Claimant filed a second PFB requesting authorization, payment, and scheduling of an appointment for evaluation and treatment with Dr. Roush, his chosen alternative physician. Three days after the second PFB, the E/C wrote to the Claimant, denying treatment with Dr. Roush, stating that Dr. Feiertag was the authorized one-time change doctor.

At trial, the Claimant argued that the E/C forfeited its right of selection of the one-time change physician when it failed to respond to his initial one-time change request. He further claimed that the second PFB was merely a requested enforcement of his previously accrued right of selection, and he was exercising that by selecting Dr. Roush. The E/C argued that the Claimant voluntarily dismissed the first PFB and waived his right of selection. The JCC concluded that due to the fact that the Claimant did not attend the appointment with Dr. Feiertag that was scheduled by the E/C, he did not acquiesce to his authorization. Additionally, the JCC rejected the E/C’s argument that the Claimant forfeited his right of selection due to the length of time between the written request and the selection of the doctor. Regardless, the JCC denied the Claimant’s request, finding that (1) the Claimant withdrew his request, (2) the second PFB was a new request that the E/C responded to in a timely manner, and (3) the Claimant failed to satisfy his burden of proof that the treatment he was seeking reimbursement for was both “compensable” and “medically necessary.”

Former NFL Player Facing DUI Charges After South Florida Crash

Published on: February 15, 2023 | by Friedman, Rodman & Frank, P.A.

According to the AAA Foundation for Traffic Safety (AAAFTS), 13.5% of people reported driving at least once in the past year when they thought their alcohol levels might have been close to or possibly over the legal limit. The National Highway Traffic Safety Administration (NHTSA) found that in 2020, 11,654 people died in alcohol-impaired driving traffic deaths, which was a 14% increase from 2019. According to the NHTSA, 32 people in the United States die every day in drunk-driving crashes. A recently published news report discusses a former NFL player facing DUI charges in Florida following an accident.

According to the news report, the accident occurred early on Saturday, February 4, when former NFL player Vontae Davis rear-ended a pick-up truck that was on the side of the highway due to a flat tire, injuring the truck’s driver, who had been standing outside of the vehicle. According to law enforcement officers, Davis lost control of his vehicle while driving, resulting in a collision with the parked pick-up truck on the side of the turnpike. The impact sent the pick-up truck spinning into a concrete barrier, striking the driver who had been waiting outside. The driver was then taken to a hospital with multiple injuries. According to law enforcement officers, Davis smelled of alcohol, had slurred speech and bloodshot eyes, and could barely stay awake while being interviewed by a trooper after the accident. Davis refused to provide a blood or urine sample and wouldn’t agree to perform a field sobriety test, according to the law enforcement report. Davis told the trooper interviewing him that he had consumed two drinks at a club.

In Florida, a first-time DUI offense is usually considered a misdemeanor. Generally, the person charged will have their license suspended for six months, with the penalty increasing to one year if they refused to submit to chemical testing when they were stopped. In Florida, first offenses carry a fine ranging from $500 to $1,000 and carry a maximum jail sentence of six months. Additionally, judges in Florida are required to place people convicted of their first DUI on probation and order them to complete at least 50 hours of community service.

Florida Appeals Court Reverses Lower Court Decision in Wrongful Death Case

Published on: February 8, 2023 | by Friedman, Rodman & Frank, P.A.

In a recent case, the Fourth District Court of Appeals in Florida issued an opinion in an appeal involving a wrongful death complaint between the Appellee, the plaintiff who is a personal representative of the decedent’s estate, and the Appellants, Cleveland Clinic Florida Health System (Cleveland Clinic). The plaintiff sued Cleveland Clinic for wrongful death after the decedent was admitted to the hospital through the emergency room, and healthcare providers performed an intubation action that caused fatal brain injuries. The trial court made a non-final order granting the appellee’s motion to amend a wrongful death medical malpractice complaint to assert a claim for punitive damages.

The decedent was admitted to the hospital through the emergency room. When his condition deteriorated, healthcare providers performed an intubation action that caused fatal brain injuries. To support their claims, the appellee relied on comments purportedly made by the hospital’s chief medical officer following the decedent’s death and arguments related to the appellants’ general failure to follow current policy procedures, make changes to their policies, and use the incident as a teaching opportunity for its interns, residents, and fellows. At trial, the court ruled that proffered evidence showed the doctors and other health care providers were grossly negligent by, contrary to the emergency room physician’s recommendation, placing the decedent on a floor level with fewer observation checks, failing to attend to the decedent during the various emergency calls, and beginning intubation without proper supervision, causing the delayed intubation that led to the decedent’s death. To support the punitive damages claim against the hospital, the trial court found a jury could conclude that the hospital’s response to the incident reflects its “condonement and ratification of the provider’s gross negligence.”

On appeal, the Cleveland Clinic argues that the trial court erred in ruling that the plaintiff made a “reasonable showing” under section 768.72 to recover punitive damages. The appellate court reverses the lower court decision for two reasons. First, the appeals court found that the proffered evidence at the hearing failed to show that the healthcare providers involved were grossly negligent. Second, neither the complaint nor the proffered evidence demonstrated how the appellants’ actions either before or during the decedent’s treatment ratified or approved the healthcare providers’ alleged negligent conduct. The appellate decision stated that “appellee’s proffered evidence provided no reasonable basis for recovery of punitive damages, which are reserved ‘to express society’s collective outrage.’” Further, the opinion states that even assuming the proffered evidence demonstrated gross negligence by the health care providers, the trial court erred in finding that a jury could reasonably conclude that the appellants ratified or condoned that negligence to subject it to punitive damages. The appeals court points out that the trial court relied on conduct that post-dated the treatment of the decedent and that such actions are not admissible on the issue of punitive damages. Subsequently, the appellate court reversed the lower court order.

One Dead and Two Injured in Florida Crash Involving a Motorcycle and a School Bus

Published on: February 8, 2023 | by Friedman, Rodman & Frank, P.A.

Driving or riding on motorcycles is a relatively risky activity, and the numbers bear that out, both in Florida and throughout the nation. In 2020, there were an estimated 620,077 registered motorcyclists in Florida. Motorcycles are inherently riskier than cars as they don’t have airbags or metal frames and are smaller than other vehicles. Between 2018 and 2020, the number of fatal motorcycle accidents in Florida increased slightly as did the rate of fatal injuries. Taking relevant and common sense safety seriously is vital if you ride or drive a motorcycle. Such steps include having all motorcycle riders wear their helmets and protective gear. While it might be tempting to forego such steps, either because the riders are driving a short distance or moving at slow speeds, doing so could have a significant impact on a victim’s recovery in the event of an accident.

Given the substantial risk of fatal motorcycle accidents in Florida, riders should be aware that in Florida, pure comparative negligence in auto accidents can have a significant impact on a victim’s recovery. A skillful plaintiffs’ attorney can use pure comparative negligence to advocate for a larger recovery for a victim and navigate past strong legal defenses. A recent local news article discussed a recent fatal Florida motorcycle accident.

According to the local news article, the accident occurred around 2:30 p.m. on Highway 98 and Avenue Due Fontaine Bleau in Mary Esther on Wednesday, January 25. According to the Florida Highway Patrol, the motorcyclist was traveling west on Highway 98 when an Okaloosa County school bus was facing south on Avenue Due Fontaine Bleau at a stop sign. The crash occurred when a school bus entered the intersection, crossing into the path of the motorcycle. The motorcycle then collided with the left side of the school bus. The Florida Highway Patrol stated that there were five children on the bus at the time of the crash. The 28-year-old motorcyclist is dead, and two children were injured during the crash.

Florida Appeals Court Reverses Lower Court Decision in Auto Insurance Case

Published on: January 31, 2023 | by Friedman, Rodman & Frank, P.A.

In a recent case, the Fourth District Court of Appeals in Florida issued an opinion in an appeal involving an insurance claim between an Appellant, the insurer, the Appellee, the insured. The insured sued the insurer seeking a declaration that she had Uninsured Motorist (UM) coverage following an accident. The jury found in favor of the insured because the insurer failed to obtain a written rejection. The trial court entered a partial final judgment for the insured. The insurer appealed, claiming that verbal waivers of UM coverage are allowed in Florida and that the insured had verbally rejected UM coverage over the phone. The appeals court affirmed the partial final judgment.

The insured then filed a fourth amended complaint, asserting a single bad faith claim based on the insurer’s denial of coverage due to an alleged verbal waiver, and also moved for punitive damages.

The case arose when the insured contacted the insurer over the phone to purchase auto insurance coverage. During the call, the insured declined UM coverage. The insurer told the insured that she would need to sign a rejection form. Days after the policy was purchased, but prior to the insured receiving the rejection form, the insured was involved in an accident. Nearly a month after the policy was purchased, the insurer mailed the insured a letter stating that because the insured had declined UM coverage, she had to fill out and return the UM coverage rejection form. The letter contained the following warning: “If you do not return the form in its entirety or we are unable to match it to your policy, UM coverage will be added to your policy.” The insured sued the insurer seeking a declaration that she had UM coverage.

Florida Appeals Court Affirms Lower Court Decision in Insurance Claim Case

Published on: January 31, 2023 | by Friedman, Rodman & Frank, P.A.

In a recent case, the Third District Court of Appeals in Florida issued an opinion in an appeal involving an insurance claim between the Appellants, the plaintiff, and the Appellee, Citizens Property Insurance Corporation (Citizens). The plaintiff sued Citizens after a claim for hurricane damage he filed was denied by Citizens due to late notice. Citizens moved for summary judgment on the basis that the plaintiff failed to promptly report his claim. The trial court granted summary judgment, and the plaintiff appealed.

The plaintiff was issued a homeowners policy by Citizens. The policy expressly barred any hurricane claims filed outside of a three-year window. Additionally, the policy requires claimants to give prompt notice of damages for claims. In the aftermath of Hurricane Irma, the plaintiff’s home sustained interior and exterior damage to his residence. He retained a public adjuster, and two years and seven months after the storm, he reported a claim to Citizens. Citizens responded by denying the claim, stating that due to the length of time that had passed between the date of the loss and the date the loss was reported, Citizens considers the loss to be a late report claim. Citizens then assigned a field adjuster. According to the field adjuster’s report, due to the passage of time, he was unable to determine if the exterior or interior damages were the result of Hurricane Irma. Citizens requested photographs and documentary evidence from the public adjuster, without success, though the plaintiff did tender a written proof of loss. Citizens denied the claim, asserting late notice.

At trial, the plaintiff testified that he noticed leaks throughout his residence the day after the storm struck. He stated that he observed roof leaks and attempted to effectuate repairs using tar approximately one month after the hurricane. The next year, the plaintiff made more roof repairs, including tile replacement, but did not report damages to Citizen. The plaintiff cited a lack of fluency with the terms of his policy as the reason why he did not report the damage at the time.

Florida Appeals Court Reverses Lower Court Decision in Wrongful Death Case

Published on: January 26, 2023 | by Friedman, Rodman & Frank, P.A.

In a recent case, the Fifth District Court of Appeals in Florida issued an opinion in an appeal involving a wrongful death complaint between the Appellants, the plaintiff, and the Appellee, Stetson University. The plaintiff sued Stetson for wrongful death after Nicholas Blakely died from cardiac arrest during a Stetson football team practice. The trial court found that two identical releases signed by Blakely before the 2016 and 2017 seasons in order to play football were sufficiently clear to bar claims brought against Stetson arising from the cardiac death.

Blakely was a student and scholarship football player at Stetson in 2016 and 2017, his freshman and sophomore years of college. On August 28, 2017, he removed himself from an afternoon practice, complaining of dizziness and chest tightness. The assistant athletic trainer took his pulse, gave him water, removed his helmet, and loosened his pads before sending him over to some shade. Approximately forty to forty-five minutes later, Blakely collapsed. Although Stetson staff called 911 and attempted various emergency medical procedures, Blakely died after being transported to the hospital. The record evidence shows that during an April 2017 practice, Blakely had complained of chest tightness and had mentioned to trainers that he experienced chest tightness twice in high school. There is further record evidence that on the morning of August 28, 2017, Blakely informed the head football athletic trainer that he was not feeling well, complaining of a bad cough, chest congestion, and shallow breathing. The trainer believed he had a cold and did not refer him to the student health clinic, instead allowing him to participate in practice that day without restrictions.

On appeal, the plaintiff raised two issues. First, that the language in the release was insufficient to be enforceable as a matter of law, and second that genuine issues of material fact exist concerning the scope of the release and whether Stetson’s alleged tortious conduct fell within that scope. The appellate court decision found merit in the plaintiff’s first argument, subsequently reversing the final judgment entered in favor of Stetson, and thus did not feel the need to address the second issue. The opinion stated that the combined factors surrounding the release, including the language found within, allowed the court to determine that the exculpatory clause was not clear and unambiguous and that the trial court erred in granting summary judgment in favor of Stetson.

One Dead in Fatal Miami-Dade Tow Truck Car Accident

Published on: January 26, 2023 | by Friedman, Rodman & Frank, P.A.

Speeding is one of the top causes of car and traffic accidents. Driving at high speeds increases both the likelihood and the severity of car crashes. Driving at higher speeds makes it more difficult to react to changes or mistakes on the road. Additionally, higher speeds lead to more serious crashes when drivers do collide with other vehicles or obstacles. Unfortunately, Florida experiences extremely high levels of car accidents and auto fatalities. According to the Florida Department of Highway Safety and Motor Vehicles (FDHSMV), in 2021, car accidents spiked throughout Florida after two straight years of decline. Throughout 2021, Florida saw 401,170 total car accidents. Additionally, approximately 40% of car accidents in Florida result in fatalities. Even more concerningly, according to the FDHSMV, fatal car accidents have been on the rise throughout the state. A recently published news article discusses a fatal crash in Miami.

According to the news article, the accident occurred late on the night of Sunday, December 11, around midnight. The crash happened just after midnight in the area of Southwest 22nd Avenue and Southwest 17th Street. A tow truck collided with a Honda CR-V. The CRV skidded about 83 feet before hitting a curb and flipping onto the driver’s side before skidding another 57 feet and coming to a stop. The CR-V then became engulfed in flames. The driver of the CR-V was a 69-year-old Miami-Dade College sign language professor.

The driver of the tow truck was taken into custody at the scene after performing roadside exercises. He refused to consent to a breath sample, and a warrant was executed for blood to be drawn. Blood was drawn 4.5 hours after the crash and came back negative for drugs or alcohol. According to the arrest report, the tow truck had a flashing light and an audible siren activated while it was traveling at a high speed in a residential area when it collided with the CR-V. Witnesses stated that the tow truck was weaving and passing slower-moving vehicles. The posted speed limit is 35 mph in that zone, but the tow truck data showed it was going 81 mph roughly three seconds before the crash, according to the arrest report.

Florida Appeals Court Reverses Lower Court Decision in Wrongful Death Case

Published on: January 21, 2023 | by Friedman, Rodman & Frank, P.A.

In a recent case, the Fourth District Court of Appeals in Florida issued an opinion in an appeal involving a wrongful death complaint between Appellants, known as “the School” and Appellee, the plaintiff. The plaintiff sued the School for wrongful death after her 13-year-old son committed suicide following the School’s request that he withdraw from the school for selling a cape pen to a classmate. The School filed a motion to dismiss or compel arbitration. The appeals court reversed the lower court decision, ruling that an order denying the School’s motion to dismiss or compel arbitration is reversed.

The plaintiff’s complaint alleged that the School violated its policies and procedures as well as a common law duty to assess and provide suicide prevention and crisis support to a disciplined student. The complaint further alleged that the School was negligent for failing to conduct a full investigation and imposing a punishment that had no basis in its policies and procedures. Notably, at least twenty of the plaintiff’s allegations implicated the School’s investigation of the incident and the appropriateness of the School’s disciplinary measures.

The School moved to dismiss the complaint or, in the alternative, to compel arbitration pursuant to the enrollment contract that the plaintiff signed when the child was admitted to the school. The enrollment contract provides that “in the event of a disagreement with [the school], or if I have a legal claim against [the school], I agree to address any such disagreement or claim through the process of conflict resolution, including Christian mediation and binding arbitration as outlined in the Parent/Student Handbook.” Additionally, the handbook contained a section prohibiting vape pens and provided that possession or use of a vape pen will result in the termination of enrollment. Ultimately, the trial court denied the School’s motion, concluding that the plaintiff’s son’s death did not arise out of her child’s enrollment at the school.

Florida Appeals Court Affirms Lower Court Decision in Workers’ Compensation Case

Published on: January 21, 2023 | by Friedman, Rodman & Frank, P.A.

In a recent case, the First District Court of Appeals in Florida issued an opinion in an appeal involving a benefits dispute between an employer and an employee, with one of the justices concurring in part and dissenting in part. The claimant is an employee of Brevard County Fire and Rescue seeking compensation for treatment for post-traumatic stress disorder (PTSD). The Judge of Compensation Claims (JCC) found that the accident in question did not give rise to any need for treatment due to PTSD or any other compensable mental injury. The claimant argued on appeal that first responder claimants can seek workers’ compensation benefits for PTSD under either § 112.1815(2)(a)3 or paragraph (5), or both.

The majority on the court of appeals affirmed the lower court ruling. While the majority agreed with the claimant’s argument that first responder claimants can seek workers’ compensation benefits for PTSD under either § 112.1815(2)(a)3 or paragraph (5), or both, they found that the availability of these claims did not alter the outcome in this case. However, one member of the appeals panel concurred with the majority in part and dissented in part. The dissent engages with the issue of first impression, in this case, establishing the burden of proof that first responders must meet to establish entitlement to medical benefits only for mental or nervous injuries, such as PTSD, arising from their employment where no physical injury accompanies the injury.

The dissent found that the JCC erred in concluding that the only path for first responders to establish the compensability of a mental or nervous injury such as PTSD was via subsection 112.1815(5), Florida Statutes, which was enacted in 2018 to allow for medical and indemnity benefits for PTSD arising out of employment involving eleven specific events. Instead, the plain language of subsection (5) states that it applies to PTSD claims “notwithstanding sub-subparagraph (2)(a)3.” and related statutes, which is a legislative acknowledgment that both provisions were intended to co-exist. Subsection (5) supplements and complements sub-subparagraph (2)(a)3. For this reason, the claimant was entitled to seek medical benefits (but not indemnity benefits) under sub-subparagraph (2)(a)3. The opinion goes on to state that the JCC erroneously concluded that even if a PTSD claim could be brought under sub-subparagraph (2)(a)3., the claimant failed to present clear and convincing evidence of his claimed injury. However, this standard of proof is specified by statute for only situations where the mental injury arises from a physical injury. In the case here, the default standard is a preponderance of the evidence, meaning the claimant’s claim should be reevaluated on remand under the proper standard.