South Florida Personal Injury Lawyers Blog

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.

The Effect of Willful Non-Compliance in a Florida Insurance Claim Proceeding

Published on: October 14, 2020 | by Friedman Rodman Frank & Estrada, P.A.

Owning a home is a major milestone, but also comes with significant responsibilities and costs. Unlike renting, maintenance is no longer a call away to help fix things when they break or leak in your home. Home insurance, however, can often provide recourse in unexpected situations that are out of your control. These insurance policies often have specific rules and instructions on how to file a claim in the event of an issue that gives rise to a claim. As a homeowner, it is crucial that you read and understand these rules so that if an incident arises in your home, you can properly assert your rights for recovery.

In a recent Florida District Court of Appeal opinion, a homeowner filed a lawsuit against his home insurance company, arguing that they had breached their contract. The plaintiff’s home was insured by the defendant. The insurance policy provided that in the event of a loss giving rise to the claim, the homeowner must provide “prompt notice” to the defendant, give the defendant the requested records and documents, and submit to an examination under oath to recover for the loss.

Following a major plumbing leak incident in the homeowner’s house, the plaintiff provided notice and documentation of loss, but failed to show up for his examination under oath because he was out of the country and unaware that the examination under oath had been scheduled. The defendant subsequently denied the plaintiff’s claim, arguing that the plaintiff had breached the insurance policy’s requirements. The lower court ruled in favor of the defendant, and the plaintiff appealed.

Filing a Florida Products Liability Case After A Hot Beverage Spill

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

Visiting a coffee shop and purchasing a hot beverage is a delight for many people. However, when the coffee cup is defective, it can lead to serious injuries. Those injured by defective or dangerous products may be able to obtain compensation for their injuries through a Florida product liability claim. In a recent case, a state appellate court was tasked with determining whether a coffee shop could be held liable for a plaintiff’s injuries. The case involved a plaintiff who was injured after she purchased a cup of hot tea in a defective cup and accidentally spilled it onto herself. Ultimately, the court determined that the hot tea and defective cup were too remotely connected to the plaintiff’s injuries, and thus, the coffee retailer could not be held liable.

According to the court’s opinion, the plaintiff ordered a cup of hot tea from a local coffee shop. The plaintiff picked up her cup of tea at the counter and noticed the beverage was “double-cupped,” but did not have a sleeve around the outside of the cup. After grabbing her tea, she removed the lid and tried to sit down at a nearby table when the chair pushed forward unexpectedly. She grabbed onto the table to maintain her balance, which caused the drink to spill onto her legs, and she suffered second-degree burns. After the accident, she filed a products liability suit against the coffee shop.

Under a products liability claim, a plaintiff alleges the defective product caused their injuries. The manufacturer, distributor, or retailer can be held liable if a defect in their product causes an injury when the product is being used in a foreseeable way. A product can also be defective if it fails to include a warning about its known risks. To succeed in their product liability claim, a plaintiff must show the defective product, or the lack of warning, was the ultimate cause of their injuries.

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.