South Florida Personal Injury Lawyers Blog

Florida Court Addresses Declaratory Judgment in Insurance Dispute

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

An appeals court issued its opinion in a Florida insurance dispute between a homeowner and an insurance company. According to the opinion, a homeowner entered into a contract with an insurance company where they agreed that in exchange for a lower premium, the insurance company would have the option to repair any damage with its preferred contractor. The current claim arose after the homeowner’s home experienced water damage after Hurricane Irma. Immediately after the damage, the homeowner contacted a company to perform mitigation repairs. In addition, he contacted a public adjustor company to appraise the value of damage and assist in settling any claims with the insurance company. About a month after the damage, the homeowner contacted the insurance company.

The insurance company acknowledged receipt of the claim and sent its inspector to evaluate the premises. The company’s inspector valued the loss at around $13,000, and the company chose to repair the damage. Pursuant to their policy with the homeowner, the company notified him of their election, and required the homeowner to file a sworn proof of loss within 60 days. After the period lapsed, the company filed an action for declaratory judgment and a breach of loss. The homeowner moved to dismiss the case, and in the alternative, compel appraisal. At trial, the court dismissed the insurance company’s complaint. The insurance company argued that the homeowner’s failure to provide a sworn proof of loss amounts to a contract breach. As such, they argued that the court should find that the breach justified a loss of coverage.

Under Florida law, a party moving for a declaratory judgment must prove that there is a good faith dispute between the parties; there is a question regarding the existence of rights or status, there is a dispute regarding a party’s rights, and there is an actual need for the judgment. When a petition for declaratory relief meets these factors, the court should not dismiss the matter for failure to state a cause of action.

Florida Product Liability Lawsuits Involving Recalled Products

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

Florida product liability laws allow individuals and their families to pursue civil actions to recover damages for injuries they suffered because of a defective product. Product liability claims generally stem from design defects, manufacturing defects, or marketing defects. In these cases, there may be multiple responsible parties. Liability often hinges on the type of defect and the injury the victim suffers. Individuals who pursue these claims must establish that they used the product in the manner that it was intended, and that they followed the product’s directions and contemplated the warnings and risks associated with the product’s use.

In many cases, liable parties will defend against a claim by arguing that they issued a recall, and therefore they should not be responsible for the victim’s injuries. However, a recall does not automatically protect a manufacturer, wholesaler, distributor, or retailer. Injury victims should contact an attorney to discuss how to overcome these assertions.

Generally, federal agencies do not recall products; instead, they urge companies to recall dangerous products and make announcements after the company notifies them of a recall. In some cases, companies refuse to recall dangerous products. When that occurs, federal agencies can commence legal proceedings against the company. Typically, the Food and Drug Administration (FDA) announces medical and food-related recalls, the United States Department of Agriculture and Food Safety and Inspection Service (FSIS) announces meat and poultry recalls, and the United States Consumer Product Safety Commission (CPSC) handles consumer product recalls. In some cases, the recall occurs after the company faces a civil lawsuit for injuries related to a defective product. In other situations, the company issues a recall as soon as they discover a defect.

Pursuing Compensation After a Florida Cruise Ship Slip and Fall Accident

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

Every year, many families travel to tropical destinations aboard cruise ships for the vacation of a lifetime. With so much to do and so many opportunities to relax, a cruise sounds like the perfect option for any adventurous traveler. However, accidents can occur while on these trips. When they do, those who are responsible can be held accountable through a Florida cruise ship injury lawsuit.

In a recent federal appellate opinion, a plaintiff suffered a severe injury while on a cruise ship vacation with her family. According to the court’s opinion, on the fourth day of the trip, the plaintiff went to pick up food from the ship’s breakfast buffet. As she was returning from the buffet line, she was forced to take a detour because diners at a nearby table had rearranged their chairs. While moving around a busboy station, the plaintiff tripped over a cleaning bucket that she had not seen, suffering injuries to her shoulder and fracturing her arm. For the remainder of the cruise trip, the plaintiff was bedridden. Following the trip, she sought medical attention from various doctors and physical therapists due to her injuries. The plaintiff subsequently brought a lawsuit against the operator of the cruise ship.

At trial, the jury returned a verdict for the plaintiff with $650,000 in past general damages, $500,000 in future general damages, and $61,000 in past medical expenses, all to be discounted by 10% due to the plaintiff’s comparative negligence. The total award amounted to roughly $1.1 million in favor of the plaintiff. Following the verdict and damages calculations, the defendant persuaded the lower court to reduce the jury’s award to approximately $16,000, on the theory that a plaintiff’s recovery was limited to the amount that was actually paid for her medical treatment.

Florida Court Issues Opinion in Case Involving Uninsured Motorist Dispute

Published on: September 21, 2020 | by Friedman Rodman Frank & Estrada, P.A.

Recently, a Florida appellate court issued an opinion in a plaintiff’s appeal of several issues in a car accident lawsuit against their uninsured motorist carrier (UM). The case stemmed from a chain-reaction three-car accident. According to the court’s opinion, the driver of the first car made a sudden lane change and abruptly slammed on their brakes. This resulted in the second-car rear-ending the first car, and the third car, driven by the plaintiff, slammed into the second car. The driver of the first car received a citation and assumed liability.

Shortly after the accident, the plaintiffs sent a demand letter to their UM carrier. They requested full policy coverage but failed to include the husband’s medical records. After the UM requested additional information, the plaintiffs asserted their rights again, and included medical documentation. The UM carrier denied coverage, and requested several other pieces of information, including confirmation of the host vehicle’s coverage, tender of available coverage, and additional hospital records. Certain information indicated that the husband might have been mostly at fault for the accident. However, the plaintiffs advised the company that they would sue if the company did not pay the full benefits. The husband filed a Civil Remedy Notice (CRN), and a jury returned a verdict in favor of the plaintiffs, apportioning 90% fault on the first driver, and 10% on the husband. However, the court reversed jurisdiction to conduct a bad faith trial.

After an initial mistrial, both parties filed motions to preclude the admission of certain documents. The court granted the defendant’s motion to admit the parties’ mediation activity log. The defendants used the log to show that the plaintiffs initially wanted a $50,000 settlement instead of their current demand of $500,000. The husband argued that the log was inadmissible because it was confidential, irrelevant, violated the trial court’s orders, and would only inflame the passions of the jury.

Florida Homeowner Successful in Bad Faith Claim Against Insurance Company

Published on: September 17, 2020 | by Friedman Rodman Frank & Estrada, P.A.

Recently, an appellate court issued its opinion in a bad faith claim homeowners filed against their home insurance company. According to the court’s opinion, the homeowners filed a claim with their insurance company after suffering losses from Hurricane Irma. The insurance company investigated the claim and determined that the homeowners’ loss was $3,013.20. In response, the homeowners provided the insurance company with their public adjustor’s estimate of their losses. According to the insurance agreement, the insurer began the appraisal process. The policy contained provisions that either party could demand an appraisal if the parties failed to agree to the amount of loss. Further, the policy included a provision that homeowners could not file a lawsuit unless the parties fully complied with the policy’s terms.

The homeowners filed a civil remedy notice of insurer’s violation (CRN), alleging that the insurance company breached its duty to settle the claims in good faith. They argued that the company was given notice of the severity of the homeowners’ losses, and the opportunity to inspect the property. The homeowners contended that, despite this opportunity, the insurer failed to identify the full extent of losses. As such, they filed a complaint based on Florida’s bad faith statute.

Under Florida Statutes, section 624.155, policyholders maintain a civil remedy for an insurance company’s bad faith. The claim applies in situations that an insurer failed to act reasonably, honestly, and in good faith to settle claims. Florida law requires plaintiffs to provide the Florida Department of Financial Services and the insurer with written notice of a violation. The CRN notice must include specific statutory violations, relevant facts and policy provisions, and a statement asserting the plaintiff’s right to pursue a civil claim. The statuary requirements to a Florida bad faith insurance claim require the claimant establish that the insurer was liable for coverage, the policy holder’s damages, and compliance with the notice requirements. The statute does not bar an insured from sending a CRN before a determination of liability or damages.

Court Finds in Favor of Plaintiff in Florida Trip and Fall Accident

Published on: September 15, 2020 | by Friedman Rodman Frank & Estrada, P.A.

Florida premises liability lawsuits often involve a slip and fall or trip and fall. These accidents can occur at businesses, restaurants, grocery stores, hospitals, nursing homes, and public buildings. Generally, under state law, business owners and land occupiers owe invitees a duty to maintain their premises in a reasonably safe condition. Despite the law, property owners often fail to maintain their property safely and often delay making repairs or address hazards.

On the other hand, in some instances, a business owner may believe their property is safe. In these cases, the trier of fact will determine whether the property is safe under a “reasonable person” standard. In other words, the court will ask whether another similarly situated entity would act similarly or evaluate the danger in the same way. Moreover, some business owners may argue that the danger was “open and obvious.” When this occurs, the court will determine whether the condition was so open and obvious that it serves as a warning to the invitee to protect themselves from its dangers.

For example, in a recent opinion, a Florida court addressed whether a groove in the pavement in an ice cream store’s parking lot was an open and obvious hazard. In that case, a woman was navigating a parking lot to get to the ice cream shop when she tripped and fell into a groove in the pavement. The woman initiated a lawsuit against the parking lot owner, alleging that her injuries arose because of its negligence. At trial, the defendant argued that the depression in the pavement was so open and obvious that the woman should have realized its dangers and taken steps to avoid hurting herself.

Florida Appeals Court Affirms Punitive Damages in Pedestrian Accident Lawsuit

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

The First District Court of the State of Florida recently issued an opinion in response to a defendant’s petition for certiorari review of a punitive damages claim. The case arose following an incident where the defendant was driving under the influence of alcohol and marijuana. According to the court’s opinion, the defendant ran his car into the plaintiff and several other pedestrians. The defendant pled guilty to the claims, and the plaintiff amended his complaint to add a claim for punitive damages. The trial court granted the plaintiff’s motion to amend his complaint, and the defendant appealed.

Under Florida law, a party may ask the court for certiorari relief if the party believes that the trial court failed to comply with appropriate procedural requirements. The party must establish that the trial court departed from the law’s requirements, which resulted in a material injury to the case, and the error cannot be corrected on appeal.

In this case, the defendant argued that the trial court erred in allowing the plaintiff to claim punitive damages. The defendant claimed that the plaintiff did not abide by the evidentiary requirements of a punitive damages claim. Further, the defendant argued that the court failed to make the appropriate findings that the plaintiff met the punitive damages evidentiary standard.

Amazon’s Liability in Florida Defective Product Lawsuits

Published on: September 8, 2020 | by Friedman Rodman Frank & Estrada, P.A.

When someone suffers an injury because of a defective product, they may be able to recover damages under Florida’s product liability laws. Product liability lawsuits are claims brought against a manufacturer or seller for putting a defective product into the stream of commerce. In Florida, most product liability claims stem from design defects, manufacturing defects, and marketing defects. The majority of these cases encompass the doctrine of strict liability. Although there are many similarities between ordinary negligence clams and strict liability, the difference is critical. Lawsuits involving strict liability claims do not typically require that the plaintiff provide proof of the defendant’s failure to exercise reasonable care. Instead, liability is imposed based on the defendant’s capacity as a manufacturer, retailer, or seller.

Issues often arise when the defendant is an intermediary or sells products from a third-party, such as is the case with Amazon. Historically, Amazon has avoided liability by maintaining its position as a mere conduit between buyers and sellers. The major online marketplace has relied on the Communications Decency Act, which provides legal protections for online entities for content users post on their platforms. However, courts across the United States have started to examine whether this broad-ranging protection is appropriate.

In fact, a state appellate court recently issued a noteworthy opinion in a product liability lawsuit against Amazon. In that case, the plaintiff purchased a computer battery on Amazon, by a seller using a fictitious name on the website. Amazon charged the plaintiff, acquired the battery from one of their warehouses, prepared it for shipment in Amazon packaging, and mailed it to the plaintiff. The plaintiff suffered severe burns when the battery exploded a few months later.

What Is a Letter of Protection in a Florida an Uninsured Motorist Claim?

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

When a person is injured in a car accident and does not have insurance, they often encounter many issues while filing a claim. One such tool plaintiffs will use in this instance is a letter of protection. In Florida, a letter of protection is used by a person without insurance to obtain medical services in exchange for part of their insurance settlement claim. In a recent Florida appellate court case, the court was tasked with deciding whether a jury could have determined the credibility of a doctor who testified under a letter of protection after he made conflicting statements. Ultimately, the court decided that there was enough information presented during the trial for a jury to be able to assess the doctor’s credibility.

According to the court’s opinion, the plaintiff suffered various injuries, most prominently her right knee, in a car accident. The driver who caused the accident did not have car insurance. Because of this, the plaintiff filed a claim against her uninsured motorist insurance, to cover the costs of the accident. The payment dispute was regarding a prior knee injury; the plaintiff had previously hurt her knee, which was rendered permanently injured after the accident. However, the plaintiff’s doctor claimed that the plaintiff had stopped feeling pain in her knee prior to the accident, while the defendant, as well as evidence from the plaintiff’s own testimony, indicated this was not true.

In this case, the plaintiff was given treatment under a letter of protection. While many are unaware of it, a letter of protection can be extremely beneficial to those without insurance. A letter of protection is a document sent by an attorney on a client’s behalf to a health-care provider when the client needs medical treatment but does not have insurance. Generally, the letter explains that the client is involved in a court case, and in exchange for deferred payment of medical services, the health-care provider will receive part of the settlement or award.

Florida Appeals Court Finds Hotel Did Not Owe Victim a Duty of Care in Recent Wrongful Death Case

Published on: August 27, 2020 | by Friedman Rodman Frank & Estrada, P.A.

In light of COVID-19, many families have been heading out to explore the great outdoors for nature getaways and safer vacations that still adhere to social distancing guidelines. However, no one expects to get into a Florida accident while on a trip, especially one that has devastating consequences.

In a recent state appellate decision, a plaintiff filed a wrongful death claim on behalf of the decedent against a Florida lodge and resort after an accident caused the individual’s death. Evidently, the defendant lodge offered a complimentary golf cart service to take guests around its property. However, the golf cart was prohibited from traveling on public roads beyond the lodge’s property, but could cross the main highway flanking the lodge grounds.

On the night of the accident, the decedent got into a golf cart and asked a bellman from the lodge to take him to a local store located on the other side of the highway. Consistent with lodge policy, the bellman drove the decedent through the lodge grounds and stopped to drop the decedent off. When the decedent exited the golf cart and attempted to cross the highway on foot, he was struck by a vehicle. Following the man’s death, the plaintiff argued that the defendant lodge undertook a duty to reasonably and safely transport the decedent and that they failed to warn him of potential dangers of the highway when he was dropped off. Following the trial, the lower court ruled in favor of the defendant and the plaintiff appealed.