South Florida Personal Injury Lawyers Blog

Tampa Court Refuses to Dismiss Insurer From Lawsuit Alleging Employer Committed an Intentional Tort Against Leased Worker

Published on: August 27, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In Companion Property & Casualty Ins. Co. v. All Roof Systems, LLC, a Florida man was apparently severely injured when he fell through a hole that was concealed while working on a roof. At the time, the man was a contract employee who was leased to the roofing company by a staffing agency. As a result of his injury, the hurt man and his wife filed a lawsuit against the roofing company in state court. In the couple’s state court complaint, they argued the roofer was not entitled to enjoy workers’ compensation immunity under Section 440.11(1)(b)(2) of the Florida Statutes.

Next, the roofing company’s insurer filed a motion for judgment on the pleadings with the Middle District of Florida in Tampa. According to the insurance company, it had no duty to defend or indemnify the roofer because the plaintiff’s injury resulting from the concealed hole constituted an intentional tort. Under Florida’s no-fault workers’ compensation law, employers are not provided with immunity for intentional torts. In addition, the insurer claimed such a claim was not covered under the roofer’s insurance policy.

Court Finds Employee is Not Entitled to Ongoing Workers’ Compensation Disability Benefits Despite Receiving Medical Referral for a Minor Preexisting Condition

Published on: August 24, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In Cruz v. State of Florida Dept. of Legal Affairs, a Florida man suffered a compensable workplace injury. While collecting temporary disability for a heart and mental health condition, the worker sought additional temporary total disability or temporary partial disability payments. According to the employee, his work-related harm not only rendered him disabled but also exacerbated his preexisting gastrointestinal condition.

At a hearing before a Judge of Compensation Claims (“JCC”), medical evidence was provided by two cardiologists who treated the worker. Both specialists apparently stated the man would reach his overall maximum medical improvement (“MMI”) for his heart condition before January 1, 2014. Similarly, the worker’s psychiatrists offered testimony that he would reach his overall mental health MMI about six months before that date. As a result, the JCC ruled that the employee was no longer entitled to receive temporary disability benefits as of December 31, 2013.

Florida Residents Injured Aboard a Cruise Ship Must Promptly File Their Personal Injury Case

Published on: August 20, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In Pettit v. Carnival Corp., a cruise ship passenger was apparently hurt when she slipped while on board the vessel in September 2013. Prior to her departure, the woman completed a contract stating any future personal injury lawsuits filed against the cruise company must be brought within one year in the Southern District of Florida. About two weeks before the statute of limitations expired, the injured woman filed a negligence lawsuit against the owner of the ship in Miami-Dade County. In addition, the hurt passenger failed to serve the cruise company until November 2014.

On December 1, 2014, the vessel owner filed a motion to dismiss the case based on the forum selection clause included in the passenger contract. About two weeks later, the woman filed her complaint with the Southern District of Florida. In response, the cruise company asked the federal court to enter summary judgment in its favor, based on the expiration of the statute of limitations. The woman countered that the period should be equitably tolled, since genuine issues of fact were in dispute.

Federal Court Refuses to Remand Florida Woman’s Negligence Lawsuit Back to State Court

Published on: August 17, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In Derringer v. Cracker Barrel Old Country Store, Inc., a woman was allegedly injured when she was struck with a plate of food that a Florida restaurant employee was carrying. As a result of her harm, the woman filed a personal injury lawsuit against the restaurant in a Florida court. About nine months later, the restaurant removed the negligence case to the Middle District of Florida, based on diversity of citizenship. After that, the injured plaintiff asked the federal court to remand the action back to state court.

Under 28 U.S.C. § 1441(a), a case may be removed to federal court when the parties hail from different states and the amount in controversy exceeds $75,000. In general, the party who seeks removal bears the burden of demonstrating to the court that a case should be tried in federal court. If a defendant fails to do so, the action must be remanded back to state court. Additionally, the removal statute is construed narrowly by the courts. Typically, any doubts must be resolved in favor of a case being tried in state court.

Appeals Court Finds Expert Evidence Improperly Excluded in South Florida Cruise Ship Negligence Case

Published on: August 13, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In Sorrels v. NCL (Bahamas) Ltd., a woman was allegedly injured in 2012 when she slipped and fell on a cruise ship deck that was wet from the rain. As a result, the woman and her husband sued the owner of the vessel for damages. In their complaint, the couple accused the cruise company of committing negligence under general maritime law. Under this theory of liability, the owner of a vessel operating on navigable waters owes passengers a duty of reasonable care. In order to demonstrate a cruise ship company committed negligence, an injured plaintiff must demonstrate the company had a duty to protect the plaintiff from a specific injury, the company breached that duty, the breach was the proximate cause of the plaintiff’s harm, and the plaintiff incurred actual damages.

In support of their claim, the plaintiffs offered expert testimony regarding “the degree of slip resistance” on the ship deck. After that, the cruise ship company asked the trial court to strike the expert evidence from the record and issue summary judgment in the company’s favor. The court granted the vessel owner’s motions, and the couple filed an appeal with the 11^th Circuit Court of Appeals.

Florida Appeals Court States Evidence Code Applies to Workers’ Compensation Cases

Published on: August 10, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In Perry v. City of St. Petersburg, an employee who was purportedly injured at work filed a workers’ compensation claim. In her request, the woman sought benefits related to the medical care she required following the on-the-job incident. At a hearing on the matter, a Judge of Compensation Claims (“JCC”) denied the woman’s request to admit the expert opinion of her employer’s independent doctor. In response, the worker sought to challenge the JCC’s denial under Section 90.702 of the Florida Statutes.

According to Section 90.702, technical, scientific, or other expert testimony may be admitted as evidence if it is based on sufficient facts and utilizes reliable methods. The JCC responded by ruling that he was not obligated to address the woman’s evidentiary challenge. After that, the worker filed an appeal with Florida’s First District Court of Appeal.

Volusia County Correctional Officer May be Entitled to Recover Workers’ Compensation Disability Benefits for Heart Disease

Published on: August 6, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In Scherer v. Volusia County Dept. of Corrections, a Florida correctional officer stopped working after he was diagnosed with a heart condition in late 2009. The officer returned to work in 2010 after he had a defibrillator implanted into his chest. Due to the officer’s deteriorating health, he ultimately retired from his position in early 2012. In the following year, the former correctional officer underwent a heart transplant.

In 2013, the worker filed five separate petitions for workers’ compensation benefits. Each of the man’s requests relied on the presumption included in Section 112.18 of the Florida Statutes, which states a correctional officer’s heart condition and resulting disability is compensable as a work-related accident, absent competent evidence to the contrary. The officer’s former employer defended against his claim by arguing the presumption included in the law did not apply, since the man failed to file his benefits request within 180 days of leaving his position. The worker countered that the portion of the law that included the 180-day limit applied only to worker disabilities that began after July 1, 2010. A Judge of Compensation Claims (“JCC”) agreed with the man’s employer and denied the correctional officer’s claim.

Equitable Subrogation Question Certified to Florida Supreme Court in Personal Injury Case

Published on: August 3, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In Allstate Insurance Company v. Theodotou, a young man suffered head trauma and other injuries when he was struck by a motorist while riding his scooter in Florida. Following the collision, the boy was treated at a local hospital. Unfortunately, his injuries were apparently made worse as a result of medical negligence.

Not long after the accident, the young man’s guardian sued the motorist who struck him as well as the owner of the vehicle. At trial, the defendants were precluded from presenting evidence that the young man’s condition was made significantly worse due to negligent medical care in accordance with prior Florida precedent. Ultimately, the defendants were ordered to pay the young man more than $11 million. After that, the driver’s auto insurer paid the boy’s guardian the full accident policy limits of $1.1 million.

Appeals Court Finds Medical Malpractice Pre-Suit Notice Statutes Do Not Violate Florida Constitution

Published on: July 31, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In Weaver v. Myers, a Florida woman filed a medical malpractice lawsuit against a physician following the death of a loved one without first complying with the pre-suit notice requirements enumerated in Sections 766.106 and 766.1065 of the Florida Statutes. According to the woman, certain 2013 amendments to the law violated the federal Health Insurance Portability and Accountability Act (“HIPAA”) and the Florida Constitution. After both parties filed a motion for summary judgment, the trial court found that the amendments at issue were constitutional and were not preempted by the federal law.

Next, the woman filed an appeal with Florida’s First District Court of Appeal. In support of her case, the woman argued the amendments were not valid because they violated the separation of powers doctrine, violated a special legislation limitation imposed by the Florida Constitution, impermissibly burdened her access to the courts, and violated the deceased patient’s right to privacy. The woman also claimed the law was preempted by the HIPAA statute.

Lakeland Appeals Court Rules Car Accident Defendant Entitled to Legal Fees After Plaintiff Rejects Settlement Offer

Published on: July 24, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In Miley v. Nash, a woman was injured in a Florida automobile collision. Following the accident, the woman filed a personal injury lawsuit against the driver who allegedly caused the crash and the owner of the vehicle in a Florida Court. In addition, her spouse sought damages for his loss of consortium. Prior to trial, the defendants made a settlement offer of more than $58,000 to the woman. The offer required the woman to dismiss all of her claims against both defendants and pay her own legal fees. Although the offer did not address her husband’s loss of consortium cause of action, he later dropped his claim.

The woman rejected the defendants’ settlement proposal, and the case proceeded to trial. Following a jury trial, jurors issued a verdict of nearly $18,000 in favor of the woman. Next, the defendants filed a request for attorney’s fees and costs under Section 768.79 of the Florida Statutes. Under the law, a plaintiff who receives a verdict that is at least 25 percent less than a written settlement offer may be ordered to pay the legal fees of the opposing party.