South Florida Personal Injury Lawyers Blog

Nursing Home Arbitration Contracts Still Common, Despite Being Disfavored

Published on: July 16, 2018 | by Friedman Rodman Frank & Estrada, P.A.

Nursing homes have come under fire over the past few years for the manner in which they get residents and their families to give up their right to pursue a case against the nursing home in court. Often, these arbitration clauses are, at best, written in small text hidden among countless other pages of documents or, at worst, presented to residents in a take-it-or-leave it fashion, such that if they refuse to sign their application will be rejected.An arbitration clause is not so much about what a nursing home resident is getting, but about what they give up. Under the U.S. Constitution, everyone has the right to access the court system to resolve grievances; however, that right can be waived through an explicit agreement to arbitrate all claims instead of using the court system. One of the problems with arbitration, however, is that it often puts a nursing home at an unfair advantage.

Thus, government agencies and watch-dog groups have been advocating for nursing homes to do away with arbitration clauses in their pre-admission paperwork. These are often presented to a potential resident or their family in a time of desperation, when the consequences of waiving their rights may not be fully realized. Notwithstanding that fact, nursing homes continue to include arbitration clauses in their pre-admission paperwork, although few have the gall to deny a resident admission if they refuse to sign it. Instead, nursing homes are relying on a resident not fully understanding what it is they are signing or simply overlooking the clause altogether.

Driver Fatigue Determined to Be the Cause of Near-Fatal Florida Toll-Booth Accident

Published on: July 12, 2018 | by Friedman Rodman Frank & Estrada, P.A.

Earlier last month, video of a serious Florida car accident occurring at a toll booth spread across the internet, with most viewers surprised by the fact that no one involved in the accident was killed. According to a local news report, the accident occurred on the Florida Turnpike, near St. Cloud in Osceola County, in one of the road’s several pay booths.The video shows a white sport-utility vehicle traveling toward the toll booth at what seems like full-speed. As the SUV approaches the booth, it does not slow down, takes out several of the warning cones placed in front of the booth, and collides head-on with the cement barrier that divides two of the toll booths.

After the initial collision, the car is thrown upward into the air as it catches fire. However, immediately after impact, one of the passengers in the car was catapulted through the front windshield of the vehicle onto the pavement some 60 feet away from where the accident occurred. The video, which may be too graphic for some viewers, shows the passenger’s head narrowly miss several obstacles before coming to a rest against one of the toll booths.

Plaintiff’s Slip-and-Fall Accident Permitted to Proceed To Trial Over Defense’s Summary Judgment Motion

Published on: July 9, 2018 | by Friedman Rodman Frank & Estrada, P.A.

Recently, a state appellate court issued a written opinion in a Florida premises liability case requiring the court to determine if the plaintiff presented sufficient evidence to survive a defense motion for summary judgment. Although the trial court granted the defendant’s motion, finding that the plaintiff presented insufficient evidence that the defendant was aware of the hazard that caused his fall, the appellate court reversed the lower court’s decision based on the plaintiff’s own testimony.

Summary Judgment

Summary judgment is a stage in many Florida personal injury cases in which one or both parties ask the judge to rule in their favor prior to trial. A judge will grant a party’s motion for summary judgment only when there are no contested issues of fact and, after considering the uncontested evidence, the moving party is entitled to judgment as a matter of law. Essentially this means that after taking into account the uncontested evidence, the non-moving party would not be able to prevail at trial.

The Facts of the Case

The plaintiff was seriously injured when a heavy object fell and struck him in the back of the leg while he was shopping in the defendant hardware store. After the accident, the plaintiff was told by an employee that the object that hit him was a trailer hitch that had fallen from high up on the shelf. The plaintiff testified that after the accident, he saw employees stacking trailer hitches high up on the shelves.

Court Limits Employer’s Duty in Recent Case Stemming from Pedestrian-Railroad Fatality

Published on: July 5, 2018 | by Friedman Rodman Frank & Estrada, P.A.

Recently, a state appellate court issued a written opinion in a Florida pedestrian accident case involving the duty a defendant employer owes to a plaintiff employee. The case presented the court with the opportunity to discuss the outer limits of an employer’s duty to protect an employee. Ultimately, the court concluded that the defendant employer owed no duty to the employee, and thus, could not be held liable for her death.

The Facts of the Case

The plaintiff worked for the defendant employer, a financial services firm. The defendant maintained a bar on-site to encourage employees to socialize and stay at work longer than they may otherwise have chosen to. One day, the plaintiff visited the defendant’s bar after work. After a few drinks, the plaintiff began to get agitated at other employees, and she was eventually told to leave and subsequently escorted out. Her access into the building was revoked.

The plaintiff then began to walk toward her home, which was ten miles away. She was walking along a set of railroad tracks when she was struck by an oncoming train. She was killed instantly.

Court Discusses Plaintiff’s UIM Rejection in Recent Car Accident Case

Published on: July 2, 2018 | by Friedman Rodman Frank & Estrada, P.A.

A state appellate court recently issued an opinion in an interesting car accident case. The case presented the court with the opportunity to discuss whether a plaintiff’s signed rejection of uninsured motorist (UIM) protection was valid under state law. Ultimately, the court concluded that the plaintiff’s rejection of UIM coverage was valid and the defendant insurance company was not required to cover the plaintiff’s claim.The case is important for Florida car accident victims because it illustrates the benefits of UIM coverage and the potential problems accident victims can encounter if they do not obtain sufficient UIM coverage.

The Facts of the Case

The opinion was issued as a result of two consolidated cases that presented similar issues. In both cases, the plaintiffs had obtained auto insurance coverage through the defendant insurance company. As is required by state law, the insurance company included UIM coverage as a default coverage. However, the company allowed for customers to opt out of coverage by signing a UIM rejection form.

Court Holds that Alternate Designee in Power-of-Attorney Document Had Authority to Sign Arbitration Agreement

Published on: June 25, 2018 | by Friedman Rodman Frank & Estrada, P.A.

In most Florida nursing home abuse and neglect cases, the threshold issue is whether the case can be pursued through the court system, or if the plaintiff must pursue their claim for compensation through the arbitration process. The reason this issue so often arises is because nursing homes routinely include arbitration agreements in their pre-admission paperwork.While arbitration is generally understood to be a more favorable forum for a nursing home, many families end up signing these agreements due to the inherent emotional pressures that are present at the time a decision must be made. While courts do have the ability to declare arbitration agreements void, it is the plaintiff’s burden to establish why that is the case.

In a recent opinion, the plaintiff’s case was dismissed based on an arbitration agreement that she had signed prior to admitting her mother into the defendant nursing home. In so holding, the court rejected the plaintiff’s argument that, at the time she signed the document, she did not have the legal authority to do so.

Court Finds City Contractors Not Liable for Obstructive Shrubbery

Published on: June 22, 2018 | by Friedman Rodman Frank & Estrada, P.A.

Earlier this month, a state appellate court issued a written opinion in a Florida car accident case discussing the Slavin doctrine, and how it can protect a contractor from liability that was allegedly caused by their work. The case arose in the context of a motorcycle accident that the plaintiff argues was the result of shrubbery that obstructed the view of motorists as they approached the intersection.

The Facts of the Case

The plaintiff was a surviving family member of a motorcyclist who was killed when he entered an intersection and was hit by another vehicle. The plaintiff believed that the accident was the result of shrubbery that obscured the vision of motorists as they approached the intersection. The plaintiff filed a personal injury lawsuit against several entities, including the company that planned the landscaping project, the general contractor, and the landscaping company (‘the contractors”).

Accident Victim’s Failure to Provide Immediate Notice of Case May Preclude Recovery

Published on: June 19, 2018 | by Friedman Rodman Frank & Estrada, P.A.

In most Florida car accident cases, one or more of the parties involved will file a claim with an insurance company, seeking compensation for the injuries they sustained in the accident. In many cases, after an accident, it is an at-fault driver’s insurance company – rather than the driver themselves – that ends up compensating the accident victim for their injuries.An insurance policy is essentially just a contract between the insurance company and the insured, whereby the insurance company agrees to cover certain costs that are incurred in the event of an accident. As with all contracts, both parties have certain obligations and rights. For example, the insured’s main obligation is to pay the monthly premium, and in exchange, the insurance company agrees to provide the insurance contained in the policy.

There are often, however, terms that give rise to additional obligations on the insured’s part. For example, most insurance policies require that notice be given to the company in the event of an accident that may result in a claim being filed against the policy. In a recent case, a court had to determine whether a plaintiff’s failure to provide immediate notice violated a term of the contract and, if so, whether her claim should be dismissed as a result.

In Florida, Statutes of Limitations Cannot Be Shortened by Agreement

Published on: June 15, 2018 | by Friedman Rodman Frank & Estrada, P.A.

When someone is injured due to the negligent actions of another party, the injured party may pursue compensation for their injuries through a Florida personal injury lawsuit. As a general matter, all lawsuits based on some type of injury must be filed by a certain time afterward, usually based on the time at which the injury occurred. These time requirements are outlined in the statutes of limitations.In Florida, the statutes of limitations for each cause of action are listed in Florida Statutes section 95.11. As a general matter, the statute of limitations for Florida personal injury lawsuits is four years. The statute of limitations for Florida medical malpractice lawsuits is two years. Of course, there are exceptions to these general rules.

The determination of when a statute of limitations expires is an important one in many Florida personal injury lawsuits. Thus, establishing when the statute begins is very important. As noted above, most of the time, the statute of limitations begins to run at the time the injury occurs. However, in instances in which an injury is not discovered until later, in which the plaintiff is a minor, or in which fraud or deception is involved, the statute of limitations may begin at a later date.

Court Determines Motorcycle Accident Victim Was Not “Occupying” the Vehicle that Struck Him for Purposes of UIM Coverage

Published on: June 12, 2018 | by Friedman Rodman Frank & Estrada, P.A.

Earlier this month, a state appellate court issued an opinion in a motorcycle accident case that raised an interesting issue that confronts many Florida motorcycle accident plaintiffs. The case involved a plaintiff’s claim that he was entitled to coverage under the defendant’s uninsured motorist (UIM) insurance coverage. Ultimately, the court rejected the plaintiff’s claim.

UIM Coverage

There are several types of insurance included in most insurance policies. Liability insurance covers personal injuries that are results of an accident caused by the insured. However, most insurance policies also include UIM coverage. Uninsured motorist protection covers the insured, and usually anyone occupying the insured vehicle, in the event that the at-fault motorist does not have adequate insurance coverage.

The Facts of the Case

The plaintiff motorcyclist was stopped at a red light when the defendant failed to stop in time and rear-ended him. As a result of the collision, the plaintiff was thrown backwards and landed on the hood of the defendant’s car.