South Florida Personal Injury Lawyers Blog

Can You Recover Attorney’s Fees in a Florida Personal Injury Lawsuit?

Published on: November 18, 2021 | by Friedman Rodman Frank & Estrada, P.A.

Many Florida personal injury lawyers represent clients on a “contingency fee” basis. Under this framework, an attorney will get paid by deducting a portion of a final, personal injury or wrongful death settlement or from a damages award. Recently, a Florida injury plaintiff moved to assess attorneys fees based upon a settlement proposal. The trial court denied the motion, reasoning that the settlement proposal was ambiguous.

The case stems from injuries the plaintiff suffered while living as a tenant on the defendant’s property. Before litigation, the plaintiff served the defendant with a settlement proposal according to Florida Statutes § 768.79 and Florida Rules of Civil Procedure (FRCP) 1.442. The defendants did not accept the proposal, but a jury found it in favor of the plaintiff. The plaintiff moved for attorneys fees because the judgment exceeded the settlement proposal by more than twenty-five percent.

The defendants argued that the proposal included ambiguous and vague language and was beyond the scope of the claims. Florida courts strictly construe the statute and rule because the common law rule is that each party should pay its fees. Furthermore, settlements proposals must be “sufficiently clear” to allow the offeree to make an informed decision. The purpose of the rule is to conserve judicial resources and reduce litigation costs by encouraging settlement negotiations.

Florida Court Distinguishes Between Ordinary Negligence and Medical Negligence

Published on: November 10, 2021 | by Friedman Rodman Frank & Estrada, P.A.

Recently, an appellate court issued a decision addressing whether a plaintiff’s claim falls under Florida’s negligence statute or the state’s medical malpractice statute. The plaintiff filed a claim against the defendant, a healthcare group, for injuries he suffered while receiving treatment at the facility. According to the record, the hospital admitted the patient for diagnostic imaging. Following the procedure, the plaintiff tried to move from the exam table to a wheelchair. However, the plaintiff fell because the attendant failed to secure the wheelchair brakes properly. The plaintiff claimed that his claim was based on ordinary negligence, not medical malpractice.

However, the court dismissed the complaint at trial, finding that the claim sounded in medical malpractice, and the plaintiff failed to abide by the applicable statute of limitations.

In cases like this, the initial inquiry is based on determining whether the claim stems from ordinary negligence or medical malpractice. According to Florida courts, these types of “gray-area” cases hinge on the specific circumstances of the injury. However, the law limits a court’s inquiry to the allegations within the “four corners” of the plaintiff’s complaint at the preliminary stages. In this case, the court found that the plaintiff alleged sufficient facts to meet the elements of an ordinary negligence claim. As such, they reversed the trial court’s finding, ruling that the dismissal with prejudice was inappropriate.

The Importance of Expert Witnesses in Florida Personal Injury Cases Seeking Punitive Damages

Published on: November 10, 2021 | by Friedman Rodman Frank & Estrada, P.A.

The Third District Court of Appeals recently addressed a defendant’s appeal following a jury trial awarding the plaintiff compensatory and punitive damages. According to the facts, the cause of action arises from a car accident when the defendant crossed over the center line and slammed into the plaintiff’s vehicle, causing it to flip over nearly two times. The plaintiff and her children survived, and she filed a negligence lawsuit against the defendant. The plaintiff amended her complaint and added a claim for punitive damages, arguing that the defendant was high on heroin at the accident.

Before trial, the parties provided a list of witnesses and any potential expert testimony. The defendant filed an “expert disclosure” for a CPA to testify regarding the plaintiff’s economic damages. Later the same day, the defendant filed a supplemental disclosure for the CPA, indicating that the expert would testify to the defendant’s net worth and the amount he needs to sustain himself. Further, the defendant claimed that the expert would testify about the effect that punitive damages would have on his livelihood. The plaintiff moved to strike the disclosure, arguing it was untimely; the court agreed and limited the CPA’s testimony to economic damages. The defendant testified to his limited financial resources at trial, but he did not call the CPA as a witness. The defendant appealed the jury’s award of punitive and compensatory damages to the plaintiff.

Under Florida law, courts can exercise discretion when determining whether to allow an untimely disclosed witness. Courts should make their decision primarily based on whether the testimony will prejudice the objecting party. Prejudice refers to the objecting party’s surprise, not to the adverse nature of the testimony. Some factors that a trial court should consider including:

Court Finds in Favor of Florida Boat Accident Victim, Reversing Mandatory Arbitration

Published on: October 31, 2021 | by Friedman Rodman Frank & Estrada, P.A.

A Florida appellate court recently reviewed a woman’s appeal after a trial court compelled arbitration of her personal injury lawsuit. The case arose when she sought damages following injuries she suffered in a boat accident. She suffered injuries on the ladder of a boat she rented as part of her club membership with the defendant. In response, the defendant moved to dismiss the complaint, and in the alternative, compel arbitration. The plaintiff filed a response, contending that the defendant waived its right to arbitrate by filing and participating in a limitation of liability action in federal court.

The record indicates that the defendant filed a complaint in federal court for exoneration based on several issues including the Limitation of Shipowners’ Liability Act. The complaint addressed the plaintiff’s claim, and the plaintiff answered by filing her lawsuit, raising affirmative defenses, and preserving her right to a jury trial. After that, the defendant objected to all of the plaintiff’s assertions and argued that her injuries resulted from her negligence moved to compel arbitration.

Under Florida law, waiver occurs when a party voluntarily and intentionally relinquishes a known right or conduct. Courts evaluating whether a party waived their right to arbitrate must look at the totality of the circumstances and whether the defaulting party acted inconsistently with their right to arbitrate. Florida courts have held that initiating a lawsuit without seeking arbitration amounts to an affirmative selection of a path that runs counter to the point of arbitration. Once a party waives their right to participate in arbitration, they may not reclaim their right without the other party’s consent.

Florida Court Finds Relation-Back Doctrine Permits Injury Lawsuit Against Deceased Defendant

Published on: October 31, 2021 | by Friedman Rodman Frank & Estrada, P.A.

A Florida appellate court recently decided a case addressing whether a trial court erred in dismissing a plaintiff’s car accident lawsuit against a deceased defendant. Four years after the accident, the plaintiff filed a lawsuit against the defendant. The defendant in the case passed away three months before the plaintiff’s action. The lower court removed the deceased woman from the filing and substituted the woman with the personal representative of her Estate. In response, the Estate moved to dismiss the complaint, contending that the court lacked jurisdiction over the action. Specifically, they argued that the action could not proceed because it named a deceased person as a defendant. Further, they asserted that the complaint could not be amended and relate back to the original filing.

Under Florida law, negligence actions must include a:

A cause of action in negligence;

Do Florida Schools Have a Duty to Children Walking to the Bus Stop?

Published on: October 24, 2021 | by Friedman Rodman Frank & Estrada, P.A.

A Florida District Court issued an opinion addressing whether a School Board is liable for injuries a child suffered while walking to her bus stop. The case arose when a car hit the child while crossing the road to reach her school bus stop. In response to the plaintiff’s lawsuit, the School Board (School) filed a motion for summary judgment asserting sovereign immunity. The trial court denied the motion, and the School appealed.

Sovereign or governmental immunity is a legal concept that protects federal and state governments from certain civil lawsuits. Under Florida law, individuals may commence a tort claim against the government if their employee’s actions caused the plaintiff’s damages. However, the statute only allows these cases in certain situations and imposes strict notice requirements and provides limitations to the damages one can recover against the government.

Typically, governmental entities may be liable if they create a “known, dangerous condition” that may not be readily apparent, and they have knowledge of the presence of individuals likely to suffer injuries. In those cases, the governmental entity has a duty to warn those who might suffer injuries or avert the danger. However, Florida courts have explained that the duty only applies in cases where the condition is “so serious and so inconspicuous” that it essentially amounts to a trap.

Florida Accident Victim Prevails on Appeal Based on Jury Instruction

Published on: October 24, 2021 | by Friedman Rodman Frank & Estrada, P.A.

An appellate court recently issued a decision in a Florida accident case resulting in serious injuries. The defendant admitted fault and the issues at trial related to damages, causation, and severity of the plaintiff’s injuries. The jury found in favor of the plaintiff but failed to address whether she was entitled to damages for her preexisting condition.

Florida follows the theory of the “eggshell plaintiff.” Under this concept, negligent parties take the injury victim as they found them. This means that the defendant will be liable for the full extent of a plaintiff’s injuries, even if their injuries were more than an average person would experience under similar circumstances. The doctrine applies in cases when an injury:

Activates a latent condition;

Understanding Florida Dog Bite Laws

Published on: October 15, 2021 | by Friedman Rodman Frank & Estrada, P.A.

Although our furry friends are often companions for life, sometimes animals can lead to accidents with significant consequences. When unexpected injuries take place, it is crucial that potential plaintiffs have a full understanding of their rights under Florida law.

In a recent District Court of Appeal case, a Florida court examined a dispute stemming from an alleged dog bite incident. In the case at hand, the plaintiff alleged that the defendant’s dog caused him to suffer physical and neurological injuries. At trial, the plaintiff and his wife testified that they were watching the dog for a few days when the plaintiff turned his back and the dog ran behind him and knocked him down, rendering him unconscious. Because of other conflicting testimony from both parties, it appeared unclear whether the defendant’s dog or if dogs that the plaintiff also owned caused the plaintiff’s injuries. As a result, the jury rendered a verdict for the defendant and found that the dog was not the legal cause of the plaintiff’s alleged injuries. The plaintiff, however, was later granted a directed verdict and a new trial on the issue of damages.

On appeal, the court reversed the lower court’s directed verdict and sided with the defendants. In directing the trial court to reinstate the jury’s original verdict, the District Court of Appeal stated that testimony introduced at trial equipped the jury to make a decision. Because the evidence presented was ample and provided the jury with the opportunity to accept or reject the testimony presented to them, the jury had a reasonable opportunity to make its conclusions and the trial court erred in overriding the jury’s verdict.

Court Addresses Overbroad Terms in Florida Bad Faith Insurance Case

Published on: October 15, 2021 | by Friedman Rodman Frank & Estrada, P.A.

An appellate court recently issued an opinion in a bad faith insurance lawsuit stemming from an accident between an 18-year-old driver and a motorcyclist. The accident occurred when the 18-year-old turned into a median in front of the biker. The biker slammed into the driver’s car with such force that the vehicle spun 180 degrees. The biker suffered serious injuries from the collision and was airlifted to a hospital.

The 18-year-old was driving his mother’s car at the time of the accident, and when he called the insurance company, he reported property damage but neglected to report any physical injuries. The insurance company interviewed the driver, who disclosed that the biker suffered injuries, and he indicated that the biker might have been speeding. The preliminary insurance investigation revealed that the accident occurred in a low-speed limit area, the motorcycle left long skid marks, and the driver did not receive a citation. With these facts, the insurance company concluded that the biker was likely contributorily negligent.

About ten days after the accident, the insurance company decided to tender the bodily injury limits to the biker; however, they asked the biker’s attorney if they could inspect the motorcycle. The next day the insurance company delivered a “tender package” to the biker’s attorney. The package included a cover sheet and described the content of the delivery, which included a $50,000 check and a form that released the company of “all claims.” The letter invited the biker’s attorney to edit the release or suggest changes to a release. The biker’s attorney did not address the release but rejected the offer stating the insurance company was trying to take advantage of the biker and his family by including an overbroad release.

Understanding Florida Product Liability Claims

Published on: October 11, 2021 | by Friedman Rodman Frank & Estrada, P.A.

When we buy a product, whether it’s food, an appliance, or a car, we expect and trust that the product will be safe for our use. Sometimes, however, these products can cause property damage or injury, which may mean that you may be eligible to receive compensation. From prescription drugs to negligently manufactured appliances, product liability lawsuits are always available for consumers so that the public can hold manufacturers accountable.

According to a recent news report, a major car accident involving a Tesla is prompting a federal investigation into the vehicle’s new technology and safety for consumers. After the accident killed two people, U.S. safety investigators from the National Transportation Safety Board sent three representatives to specifically look for photos or videos of the crash or the fire that broke out after the initial accident. Because Tesla vehicles are electric do not use gasoline, it is unclear what specifically caused the crash or the fire. It is also unclear whether the vehicle’s automated driving system was activated at the time of the collision, which has been the subject of federal interest in recent years. The report investigators plan to generate will create recommendations to other federal agencies about future safety regulations.

In Florida, there are frequent incidents that give rise to similar product liability claims. These claims, however, are subject to specific laws and requirements that govern product liability lawsuits. Because these cases can often be complex, it is crucial that potential plaintiffs understand the details surrounding filing a product liability lawsuit and what a claim will entail.