South Florida Personal Injury Lawyers Blog

Court Entitles Florida Homeowner to Recover Additional Funds in Insurance Dispute

Published on: February 28, 2022 | by Friedman Rodman Frank & Estrada, P.A.

The District Court of Appeal in Florida issued a decision in an insurance coverage dispute in a case involving the insurance company’s liability provision. According to the facts, the insurance company insured the homeowner’s residence. A failed cast iron sanitary plumbing system in the home caused water to escape and cause damage to the dwelling. The cast-iron pipes deteriorated because of wear and tear, deterioration, and corrosion.

The insurance company permitted coverage for the water damage for $10,000, under the Limited Water Endorsement (LWD) in the policy. The homeowners claimed that the insurance company owed them additional funds for the cost of tearing out and replacing the concrete slab. The owners cited language in the primary policy, which stated that the company covered losses related to water damage, including the cost of tearing out and replacing necessary parts. Finally, the parties agree that the policy does not cover the repair or replacement costs of the corroded pipes.

The parties agree to most of the policy terms; however, they disagree with the liability provision in the LWD endorsement. The company argues that the $10,000 applies to water damage and the related costs, whereas the homeowners contend that the limitation applies only to the water damage.

Florida Teacher Pursues Workers Compensation for Classroom Fall

Published on: February 28, 2022 | by Friedman Rodman Frank & Estrada, P.A.

Recently, the First District Court of Appeal in Florida issued an opinion in an appeal involving claims from a teacher who suffered injuries after falling in a classroom where he worked. According to the record, the teacher sustained injuries after losing his balance because his leg fell asleep. The judge of compensation claims (JCC) denied his claims, reasoning that the teacher’s injury did not “arise out of” his work as a teacher.

The doctor performing the independent medical exam (IME) on behalf of the school district testified that the teacher reported occasional numbness before the accident. However, the numbness the teacher experienced after the fall was not related to any medical illness. Instead, the numbness the teacher experienced before the fall was likely the result of brief nerve compression. The teacher’s expert reached a similar conclusion. In response, the teacher argued that he sufficiently established “occupational causation” because the accident happened in the “course and scope” of his employment.

Florida’s Workers’ Compensation Act compensates an employee’s injury if it stems from an accident that “arises out of the work performed in the course and scope of employment.” Arising out of and in the course of employment refers to where and under what circumstances the incident occurs. Understanding that work causation is not always straightforward when the incident involves an idiopathic condition, the fact remains that there must be a causal connection between employment and injury.

Florida Court Finds Willfully Serving Minors Amounts to Intentional Misconduct

Published on: February 22, 2022 | by Friedman Rodman Frank & Estrada, P.A.

The First District Court of Appeal recently issued an opinion addressing the apportionment of liability stemming from a Florida pedestrian accident. According to the court’s opinion, the underage driver worked at a bar where he received a 50% discount on drinks. After drinking at his place of employment, he drove drunk and proceeded to hit a pedestrian. The pedestrian, who was also underage, was served alcohol at a different bar. The pedestrian filed a lawsuit against both bars to recover damages for her injuries. On appeal, the bar employing the driver argued that they should have asserted a comparative fault defense. The plaintiff asserts that the claim falls under the state’s Dram Shop statute, and therefore the law does not entitle the defendant to this defense.

Florida’s comparative law statute provides that a claimant’s contributory fault reduces their compensation based on their level of fault. However, the law applies to negligence actions, not intentional torts. In this case, the plaintiff cites the state’s Dram Shop statute, which provides that an establishment that sells or provides alcohol to a person will be liable for any injuries or damages resulting from the intoxicated person. The Court reasoned that the dram shop statute does not create a new cause of action; therefore, it does not transform the existing action into an intentional tort.

In light of the finding, the defendant purported to use the “alcohol defense” to thwart liability for the driver’s action. Under the defense, a plaintiff may not recover for damages if:

Fee-Related Disputes Under Florida’s Workers’ Compensation Statute

Published on: February 22, 2022 | by Friedman Rodman Frank & Estrada, P.A.

Recently, an appeals court issued a decision in a Florida workers’ compensation case where the Employer appealed the Judge of Compensation Claims (JCC) order. In this case, the E/C granted the employee/claimant’s request for a one-time physician change. The E/C agreed and scheduled the Claimant with a new physician. The new doctor and E/C completed a new form fee agreement that exceeded the base amount under the workers’ compensation fee schedule. The Claimant argued that the higher-than-schedule fee transformed the physician into an independent medical examiner (IME) instead of a treating physician. As such, the JCC terminated the E/C physician and allowed the Claimant to receive a one-time physician change. The E/C claimed that it was an error to strike the physician based on a fee agreement.

Florida’s workers’ compensation code does not provide JCCs with authority to disqualify a treating doctor because a claimant was dissatisfied with the fee reimbursement agreement between the physician and E/C. Under Florida law, a JCCs role does not extend to resolving disputes about fee arrangements between treating doctors and E/Cs. Further, the workers’ compensation code permits higher-than-fee schedule agreements. Finally, the law does not provide claimants with a recourse for litigating complaints regarding reimbursements before a JCC.

In this case, the court reasoned that the JCC’s authority does not extend to striking a provider’s authorization in light of the law. Moreover, the court recognized that the form used by the E/C and doctor did not include the statutory language that the law requires. However, the E/C and physician amended their agreement before the Claimant‘s rescheduled appointment. Finally, the court found that the workers’ compensation code does not allow claimants to disqualify their E/C-authorized doctor before a JCC. As such, the court reversed the JCC’s final compensation order.

The Rights of a Good Samaritan Injured in a Florida Car Accident

Published on: February 15, 2022 | by Friedman Rodman Frank & Estrada, P.A.

Florida Statutes section 768.13 governs Florida’s “Good Samaritan Act,” which provides protection from liability to those acting in good faith while rendering emergency care in an emergency situation. The Good Samaritan Act stems from a public policy view that encourages bystanders to aid in emergencies without the fear of liability. However, the law only applies to those acting in good faith and exercising due care.

While Florida law does not require individuals to help victims, those that undertake that duty must do so with the care of a reasonable person. The law imposes liability in certain circumstances, such as when: the actor’s failure to exercise due care exacerbates the risk of harm to another person, or the other person suffered an injury due to their reasonable reliance on the actor. It is important to note that the Act does not apply in cases where a victim objects to assistance or compensates the volunteer for their help. Moreover, there are exceptions to the general standard in cases involving a health care provider or law enforcement.

Good Samaritans play a significant role in many Florida accidents; however, these volunteers assume a level of risk in undertaking assistance. For instance, a Florida Good Samaritan recently suffered fatal injuries on 1-75. According to reports, a 19-year-old Toyota driver who failed to stay in the center lane set off a series of deadly events. The 19-year-old overturned after slamming into the back of a semi-truck. The semi-truck pulled over to the shoulder, and another sedan slowed down to pull over when a fourth car rear-ended that vehicle. The 28-year old Good Samaritan pulled over to assist the drivers when a series of events ended with a car slamming into the volunteer, killing him upon impact.

What Is the Discretionary Planning Function Under Florida Personal Injury Law?

Published on: February 15, 2022 | by Friedman Rodman Frank & Estrada, P.A.

Florida Statutes Section 768.28 partially waives a governmental entity’s sovereign immunity protections. However, the waiver only applies in cases stemming from a governmental entity’s operational functions and not discretionary planning-level functions. Recently, an appeals court issued a decision addressing a negligence claim involving the government’s discretionary actions.

A plaintiff filed an amended complaint against a Florida town about injuries their minor child suffered while riding their bicycle. The child was riding a bike on a path along a street when they approached a dumpster blocking the path. The child left the bike path and entered the street to avoid the obstruction. A driver struck the child while he was traveling down the street. In response to the plaintiff’s claim, the county moved to dismiss the case based on sovereign immunity.

On appeal, the court reasoned that the law entitles the defendant to sovereign immunity because the plaintiff’s complaint alleged that the county was negligent in its discretionary planning-level functions. Florida law provides that sovereign immunity protects governmental entities for their discretionary functions. Discretionary functions include quasi-legislative decisions, policy-making, and judgmental governmental functions. On the other hand, sovereign immunity does not apply to operational functions such as decisions that implement policy. As such, plaintiffs wishing to overcome sovereign immunity must allege negligent acts “at an operational level.”

Florida Car Accidents Involving Swerving and Failing to Maintain Lanes

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

According to the World Health Organization, motor vehicle collisions cause more than 1.2 million fatal injuries worldwide and even more non-fatal injuries. Various factors contribute to or exacerbate the severity of a Florida accident. While the causes of Florida accidents are complex, most originate from negligence. Amongst younger motorists, inexperience, lack of tactical skills, and risky conduct seem to be leading factors in accidents. Accidents involving older adults tend to stem from visual, auditory, cognitive and mobility impairments. However, many accidents involve a combination of these factors and other contributing circumstances.

When motorists exhibit the conduct described above, they are more likely to miss obstacles, drift lanes, and cause serious accidents. For example, a recent news article described a fatal Florida multi-car accident. The Highway Patrol report indicates that a pickup truck failed to maintain its lane, crossed into the center, and side-swiped a sedan. The truck driver continued in the wrong direction and slammed head-on with a second vehicle. The pickup truck driver and three passengers in the second sedan died from their injuries. The individual driving the first sedan was able to bring their vehicle to a controlled stop without swerving.

The tragic accident above illustrates how even minor moves can set off a path of destruction and fatalities. Failing to maintain a lane and swerving to avoid accidents are common occurrences, but they can lead to multi-vehicle accidents. There is very little a driver can allege to defend their failure to maintain lanes. However, swerving can be an instinctual reaction to avoid an oncoming vehicle; but safety experts urge drivers to understand alternatives to swerving and how to do so safely.

Pre-Suit Requirements for Florida Medical Malpractice Lawsuits

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

The Third District Court of Appeal in Florida recently issued an opinion in a defendant’s motion to dismiss a complaint. The plaintiff in the matter filed a lawsuit for injuries he suffered when a surgical table collapsed underneath him while he was preparing to undergo eye surgery. The victim argued that the facility breached a duty of care by warning him about the table. In addition, he contended that the facility failed to maintain and use the table properly. The defendants moved to dismiss the complaint contending that the complaint did not meet Florida’s medical malpractice statute. The trial court found that the plaintiff adequately filed the complaint under the state’s ordinary negligence statute.

Under Chapter 766, the pre-suit requirements apply to claims arising out of the medical care or services in Florida. However, Fla. Stat. 766.106(1)(a) further explains that “merely because a wrongful act occurs in a medical setting” does not automatically mean that it falls under the state’s medical malpractice statute. Instead, the wrongful act or omission must directly relate to professional judgment or skills or the improper application of medical services. Under Florida law, there is a two-step inquiry to determine whether a claim stems from medical malpractice first, whether the wrongful act arose out of medical diagnosis, treatment or care, and second whether a healthcare provider rendered the treatment.

In this case, the plaintiff alleges ordinary negligence; however, the court must decide whether the complaint sounds in ordinary negligence or medical negligence. Here, the plaintiff’s allegations relate to the collapsing table and not to anything related to medical judgment or skills. The appeals court found that the mere fact that the table was used for a medical procedure does not amount to a medical malpractice claim. In support of their position, the Court cited similar cases which involved medical settings. For example, a Florida court held that a case involving a nursing caretaker’s restraining hold on an unruly patient did not require medical skill and thus did not fall under medical malpractice. Further, a previous decision explained that a medical provider’s decision to leave a critical care patient unsupervised, causing him to fall out of a bed, did not fall under medical malpractice. As such, the court denied the defendant’s petition to dismiss and affirmed the case in favor of the plaintiff.

Florida Auto Accidents with Police Vehicles

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

Generally, Florida personal injury lawsuits follow a clear pattern; however, cases involving governmental entities present additional challenges and burdens. Pursuing lawsuits and collecting damages after an accident with a governmental entity or vehicle requires a comprehensive understanding of complex negligence laws. Unlike other states, but for three primary exceptions, Florida permits individuals to pursue negligence actions against governmental entities.

A government employee may be held liable for damages or injuries under certain circumstances in Florida. These situations typically involve cases where the injury stems from a negligent act, omission, or wrongful act of the government employee, there are compensable damages, and the law would hold the responsible party negligent even if they were not a government worker.

Those who have suffered injuries in an accident with a Florida government vehicle should seek legal representation as soon as possible. While the law permits accident lawsuits against Florida police officers, these cases are very fact-specific. For instance, a recent Florida appeals court issued an opinion involving a lawsuit against a police vehicle. In that case, an off-duty police officer rear-ended another vehicle. The vehicle owners filed a complaint against the City of Miami (City) for their damages and losses. However, the City argued that they were entitled to sovereign immunity because the office was off-duty at the time of the incident. The trial court found in favor of the City.

Fatal Florida Accidents Involving T-Bone Collisions

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

T-Bone or side collisions refer to situations where the front of one vehicle collides into the side of another vehicle. Florida broadside accidents tend to happen at intersections, parking lots, or in situations where one driver fails to stop at a red light or stop sign. These accidents are more likely to result in tin severe injuries or fatalities. Scientific literature from the Association for the Advancement of Automotive Medicine categorized the severity of injuries from these types of accidents.

An analysis of the crash data indicated that about 49% of victims suffered injuries to the chest/abdomen, 24% experienced pelvic/lower extremity injuries, and 4% to their neck/spine. In addition, the largest source of injuries involved arterial damage followed by brain and heart injuries. Generally, four factors influence the severity of injuries in a Florida t-bone accident. These factors include; accident type, occupant exposure, impact area, and crash direction; interestingly, seat belt use was not a primary factor. However, the literature suggests that seat-belt use was critical in reducing ejection and rebound injuries.

Almost all data suggests that the most dangerous type of t-bone accident involves vehicle-to-vehicle collisions. For instance, news reports recently described a tragic accident involving a family vacationing in Florida over New Year. A driver t-boned the family’s vehicle as they pulled into a fast-food restaurant. According to witnesses and a police report, the family’s car rotated across the roadway, onto a sidewalk, and slammed into a light pole. Emergency responders transported the family to a local hospital; however, the mother and son succumbed to their injuries. The case is still under investigation, and it is unclear whether the driver will face charges.