South Florida Personal Injury Lawyers Blog

Liability Under Florida’s “Lemon Law”

Published on: November 24, 2020 | by Friedman Rodman Frank & Estrada, P.A.

Florida consumers rightfully expect vehicle manufacturers and dealerships to maintain integrity in their dealings and ensure that vehicles are free from defects. However, despite due diligence, in some cases, motorists end up with a defective car. These vehicles are commonly referred to as “lemons.” Fortunately, federal and state laws protect consumers in these situations.

Florida’s “Motor Vehicle Warranty Enforcement Act,” or “Lemon Law,” protects customers who purchase new or nearly new vehicles. In some instances, the law protects consumers who lease vehicles or purchase a defective recreational vehicle. The law applies to vehicles purchased for personal, family, or household use. It extends to anyone to whom the vehicle is transferred for the same purposes during the statutory period. The statutory period is generally 24 months following delivery to the consumer. The law covers “nonconformities” to the vehicle, which substantially impairs the vehicle’s use, value, or safety. However, the law does not apply when the consumer’s negligence, abuse, or unauthorized alteration caused the defect.

Under the law, manufacturers that cannot adequately repair a defect, must repurchase or replace a vehicle. The law permits the manufacturer a reasonable number of attempts to repair the vehicle before mandating repurchase or repair. Generally, a manufacturer will have to repurchase after they unsuccessfully resolved the problems three or more times or if the car is in a repair shop for more than 30 days.

Florida Car Accidents Caused By Drivers Carelessly Pulling Out Into the Road

Published on: November 12, 2020 | by Friedman Rodman Frank & Estrada, P.A.

Every driver knows that to maximize safety while operating a vehicle, you must look both ways and double-check before pulling out of a driveway or parking spot from a stationary position. When the roadway you’re pulling into is especially busy, it can be even more dangerous. Thus, in these situations, drivers must execute the highest degree of care to avoid a Florida car accident.

Sometimes, however, when operating a larger vehicle like a tow truck, it can be hard to see every angle and vantage point while backing up. Larger vehicles often need significantly more space to pull into a busy roadway or execute large turns when pulling out of spaces than regular pedestrian vehicles, so the dangers are elevated further. Unfortunately, accidents involving tow trucks and pulling out of stationary positions into a busy road can make for a deadly combination when it also involves drivers who are not fully present or paying attention to their surroundings.

According to a recent news report, a 15-year-old girl tragically died in a crash after a tow truck collided with the car she was riding in. According to Florida Highway Patrol troopers, the girl was riding as a passenger in a convertible when the tow truck reversed from a driveway into the street, and the convertible hit its flatbed. Based on reports from local authorities, the girl died at the scene, but neither driver was injured.

Florida Court Addressees University Hospital Sovereign Immunity in Medical Malpractice Lawsuit

Published on: November 10, 2020 | by Friedman Rodman Frank & Estrada, P.A.

A Florida appellate court recently issued an opinion addressing whether a plaintiff could hold a university teaching hospital liable for medical malpractice. The main issue turned on whether sovereign immunity protects the university teaching hospital involved in the case.

In 2004, the university and healthcare system agreed to an affiliation contract that provided that the woman’s treating doctor was a university faculty member and employee. The agreement included an agreement between the doctor and the healthcare system, where the doctor would treat the system’s indigent patients. In 2011, the Florida lawmakers amended 768.28, Florida Statutes, thereby replacing the 2004 affiliation agreement. The amendment covered all patients’ care and provided that all university employees and faculty were acting as an agent of the healthcare system.

The record indicates that the woman received treatment for an illness with several doctors employed by a teaching hospital where the university provides healthcare services. She alleged that her doctors’ failure to prescribed appropriate medication resulted in her disabilities. The plaintiff filed a medical malpractice lawsuit against several parties, including the healthcare system, the university, and her treating physician. In response to the medical malpractice lawsuit, the university contended that they were entitled to immunity under Florida’s sovereign immunity statutes.

Filing a Wrongful Death Lawsuit After a Florida Bicycle Accident

Published on: November 6, 2020 | by Friedman Rodman Frank & Estrada, P.A.

Riding a bike is a great form of exercise and a way for family and friends to get outside in the beautiful Florida weather. However, when an individual gets into a Florida bike accident, the injuries may be fatal – especially if they were hit by a car. When an accident has resulted in death, it is very devastating and traumatic for the deceased’s loved ones. However, loved ones can file a wrongful death lawsuit to financially recover and hold the responsible party accountable.

An 11-year old boy was recently killed after being hit by a car while riding his bike with a friend. According to a local news report, the accident occurred at the intersection of two roads in Pensacola. The boy was rushed to the hospital, and after fighting for his life for a few days, he tragically passed away. In these tragic, preventable situations, nothing can bring the deceased loved one back; however, the family can often file a wrongful death lawsuit. Below are some of the commonly asked questions about filing a wrongful death lawsuit and what this process entails.

What is a Wrongful Death Lawsuit, and Who Can Bring One?

According to Florida Statutes § 768.18 – which governs wrongful death lawsuits in Florida – a wrongful death lawsuit can be brought when a person’s death is caused by the wrongful act or negligence of another individual. Florida created the ability for loved ones to sue the responsible party so the losses can be shifted from the loved ones to the wrongdoer – or as much as possible.

Florida Head-On Car Accidents

Published on: November 4, 2020 | by Friedman Rodman Frank & Estrada, P.A.

Florida car accidents have the potential to cause long-term severe injuries and damages; however, head-on accidents tend to carry the most significant risk of serious harm. Florida head-on accidents often occur when one motorist crosses a median and enters the path of oncoming traffic. In other cases, a head-on collision occurs when a driver fails to obey traffic rules and veers into another car. The majority of these accidents happen on two-lane highways or roads or bridges. Further, these accidents tend to occur during low-visibility conditions, such as during the night or periods of heavy rain or fog. Moreover, certain poorly maintained or designed roadways make a head-on collision more likely to occur. Regardless, of the specific circumstances, individuals who suffer injuries in a head-on collision because of a negligent motorist or government entity, should contact an attorney to discuss their rights and remedies.

According to state reports, Florida has one of the highest rates of accidents in the United States. Nearly 400,000 traffic accidents occur each year in Florida, and the most recent data indicates that as the population grows, so does the rate of accidents. Close to 10% of these accidents are head-on collisions. Although each accident possesses its own unique set of leading causes and circumstances, many head-on collisions share similar fact patterns. The majority of head-on collisions occur because of speeding, distracted driving, passing in a no-passing zone, a driver’s failure to modify driving during inclement weather, impaired driving, and fatigued driving. Most drivers understand that they must abide by traffic laws and operate their vehicles safely, but it is also critical to pay attention to others’ driving behavior. Although this is burdensome, it can save a person from an accident and the ensuing damages.

Although only about 1 percent of Florida accidents are fatal, non-fatal accidents can have devastating consequences. Many head-on collisions result in broken bones, fractures, traumatic brain injuries, and internal bleeding. Additionally, these accidents can cause drivers and passengers to experience psychological issues, including post-traumatic stress disorder, anxiety, and similar mental health issues related to their injuries.

Court Addresses Applicability of Risk Utility and Consumer Expectation Tests in Florida Product Liability Case

Published on: October 30, 2020 | by Friedman Rodman Frank & Estrada, P.A.

The United States Court of Appeals for the Eleventh Circuit recently issued an opinion in a Florida product liability lawsuit. The case arose after a meat-market manager suffered injuries while using a meat saw. The plaintiff filed a lawsuit against the saw’s manufacturer, arguing that the meat saw was negligently designed. The court instructed the jury that the plaintiff needed to establish that the meat saw was not designed with “reasonable care” and was not “reasonably safe” for foreseeable use. A jury found in favor of the plaintiff, and the defendant appealed.

In addition to other issues, the defendant appealed the jury’s ruling arguing that the court should not have provided the jury a general negligence instruction. Rather, the defendant argued that the court should have instructed the jury on Florida’s “risk utility” test or “consumer expectations” test.

Under Florida law, the risk utility test addresses and balances six considerations to determine whether a product’s risk outweighs its utility to consumers. If it does, the product is negligently designed. The six factors are: the likelihood of potential injury balanced against its utility, the availability of safer products that meet the same need, the obviousness of the danger and the public’s expectation of that danger, the adequacy of instructions and warning, and the ability to minimize the danger without impairing the product or making it economically unfeasible. On the other hand, the consumer expectations test focuses on if the product was more dangerous than an ordinary consumer would anticipate.

Court Finds in Favor of Plaintiff in Florida Insurance Coverage Dispute

Published on: October 28, 2020 | by Friedman Rodman Frank & Estrada, P.A.

Recently, a Florida appellate court issued an opinion in an insured’s appeal of a circuit court’s final order granting her insurance company’s motion to dismiss her claim for bad faith. According to the court’s opinion, the plaintiff filed a claim with her insurance company for damages to her home from a hurricane. The homeowner claims that, despite admitting the loss was covered, the insurance company “grossly undervalued the claim” and “refused to negotiate the damages.” An appraisal panel found that the damages the woman claimed were appropriate, further supporting the woman’s contentions against the company.

Abiding by the condition precedent to bringing a bad faith action, the woman filed a civil remedy notice (CRN) with the Department of Financial Services (DFS) and the insurer. Within sixty days of the DFS’s acceptance of the CRN, the company did not pay damages. Thus, the homeowner argued that the company committed bad faith in adjusting her claim. The insurance company argued that the notice was ineffective because the CRN misidentified the insurer. The homeowner appealed a circuit court’s ruling in favor of the insurance company, arguing that the company waived their argument by not raising it in its response to the CRN.

On appeal, the homeowner argued that the insurance company never claimed that the incorrect identification caused it any prejudice. Instead, the plaintiff claimed that the insurance company simply denied the claim and argued that the loss did not exceed the policy’s deductible, without attempting a cure. Second, the company had actual notice of the CRN within the cure period and responded to the notice. Next, the company waived any misnomer defects by timely responding without any objections. Finally, the company’s failure to note the misnomer in its CRN response, and failure to bring the defect to her attention, warrants the application of estoppel principles. The insurance company argued that the plaintiff’s claim failed to satisfy the condition precedents because it was filed against another company, the CRN was legally insufficient, and the company could not cure the defect.

Recovering Attorney’s Fees After a Florida Insurance Coverage Lawsuit

Published on: October 26, 2020 | by Friedman Rodman Frank & Estrada, P.A.

Under Florida Statute § 627.428, a party may be eligible to recover attorneys’ fees when a policyholder prevails and recovers actual insurance proceeds. However, not every insurance dispute or coverage lawsuit results in an award of attorneys’ fees. Typically, Florida courts authorize recovery of attorneys’ fees when the insurer has “wrongly withheld payment of the proceeds” of a policy. The law does not permit recovery of attorneys’ fees if the insured does not recover money or benefits, or if the court determines that the insurance company never wrongfully withheld payments.

Recently, the District Court of Appeal of the State of Florida issued an opinion addressing whether attorneys’ fees were appropriate. In this case, the plaintiff filed a negligence lawsuit against an at-fault driver. The defendant passed away during the proceedings, and the plaintiff substituted his estate as a party defendant. While awaiting the case’s status, the trial court ordered the plaintiff to set up the estate for the defendant and substitute the defendant’s estate for his name. During this time, an estate was created for the defendant in probate court. The court did not name a personal representative, and the plaintiff substituted “John Doe” for the defendant in his complaint. After that, the probate court appointed a representative, however, the plaintiff failed to amend his complaint to include this update.

The plaintiff proposed a settlement agreement, and the defendants moved to dismiss the claim, arguing that the complaint named “John Doe” as the personal representative. The trial court ordered the plaintiff to amend his complaint, and a jury found in favor of the plaintiff. The plaintiff argued that he was entitled to attorneys’ fees, because the defendants rejected his initial settlement offer.

The Applicability of Risk-Utility Tests and Consumer Expectation Tests in Florida Defective Device Lawsuits

Published on: October 23, 2020 | by Friedman Rodman Frank & Estrada, P.A.

Florida law concerning design defect claims is continuously evolving, and courts have not reached a consensus on which test is appropriate in these matters. In most cases, courts use one of three different product liability tests: the consumer expectations test, the risk-utility test, or the reasonable alternative design test. In a recent opinion, a Florida appellate court considered whether the consumer expectations test or risk-utility test was appropriate in a defective complex medical device lawsuit. The case is based on a wrongful death lawsuit that was filed against several defendants, including a hospital, its surgical team, and the manufacturer of the medical device. The decedent’s estate filed the lawsuit after the victim died while undergoing lung surgery. The plaintiff’s lawsuit against the device manufacturer claimed that the manufacturer was liable for the product’s design defect, failure to warn, and negligence.

After settling with the health care providers, the claim against the manufacturer proceeded to trial. At trial, the plaintiff submitted a jury instruction that stated that the jury could find the defendant liable for an unreasonably dangerous product if the plaintiff established the consumer expectations test or risk-utility test. Florida law provides that the consumer expectation imposes liability if the plaintiff can prove that the product failed to perform as safely as a consumer would expect, if the product is used in a reasonably foreseeable manner. In contrast, the risk-utility test imposes liability if the plaintiff establishes that the risk of danger outweighs the benefit. The defendant proposed the risk-utility test, and the trial court proceeded with that jury instruction. On appeal, the plaintiff claimed that the judge overseeing the trial should have provided the jury with a consumer-expectations instruction, and the judge’s failure to do so required a new trial.

The plaintiff argued that previous Florida courts adopted the consumer expectations test in Aubin v. Union Carbide Corp. In this case, the appellate court distinguished the case at hand with the previous ruling, primarily finding that this case involved a medical product that is “too complex” for the consumer expectation test. Further, the prior court found that plaintiffs may opt to proceed with a consumer expectations test for design defect claims, but they did not address whether a medical professional may be considered an “ordinary consumer.” Moreover, even if a portion of the consumer expectations test could apply, the jury instruction would need to address a medical professional’s reasonable expectation. Ultimately, the court determined that the plaintiff’s requested instruction would have only confused the jury, and providing such an instruction would have been a misstatement of the law. As a result, the plaintiff’s appeal was dismissed.

Damages Caps in Florida Lawsuits Against Government Entities

Published on: October 16, 2020 | by Friedman Rodman Frank & Estrada, P.A.

The Florida Supreme Court recently addressed the state’s statutory damages cap in cases against a governmental entity or actor. The state supreme court was tasked with answering whether the governmental immunity law caps damages at $200,00 for all injuries or deaths as claims “arising out of the same incident or occurrence.” The question stems from a negligence lawsuit that a father brought against Florida’s Department of Children and Families (DCF).

In this case, a man shot his estranged wife and five of her children, resulting in the death of the woman and four of the children. The children’s father filed a negligence and wrongful death lawsuit against DCF. He argued that the agency received several domestic disturbance calls at the residence. Further, he alleged that the agency failed to investigate the circumstances of the calls appropriately. He contends that the agency’s inadequate investigation and ultimate finding that the children were not at significant risk of harm were negligent and a breach of their nondelegable duty to protect the children. In response, the agency raised several defenses and argued that Florida statute 768.28(5) provides a limitation on the plaintiff’s available recovery.

Florida law provides a waiver to the archaic “sovereign immunity” doctrine, which provided complete protection against lawsuits against the government. The waiver allows individual parties to file tort actions against the state to recover money damages for the victim’s injury, loss of property, or death caused by the negligence or wrongful act or omission of a state actor. However, the law provides a limitation to a plaintiff’s available recovery against the state agency or actor. The state cannot be liable for a claim by one person, which exceeds $200,000 for the same incident or occurrence.