South Florida Personal Injury Lawyers Blog

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.

Pensacola Court Considers Proposed Evidence in Florida Semi-Truck Accident Case

Published on: July 23, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In Bryan v. Whitfield, a Florida man apparently suffered a traumatic brain injury in a car accident that occurred on Interstate 10 in Santa Rosa County. More than two years after the collision occurred, the man filed a personal injury lawsuit against a tractor-trailer driver and his employer in the Northern District of Florida. According to the injured man’s complaint, the semi-truck driver committed negligence when he struck another car from behind and caused the multi-vehicle crash in which the man was hurt.

Following the collision, the company that owned the big rig admitted the driver committed negligence. The company also stated it was liable for the driver’s negligent acts under the doctrine of respondeat superior. This legal doctrine states an employer may be held responsible for the negligent acts of a worker when the acts are performed within the course of the worker’s employment. In addition, the company admitted the plaintiff suffered permanent harm in the collision. As a result, the only issue at trial was the injured man’s past and future non-economic damages.

Summary Judgment Upheld in South Florida Premises Liability Case

Published on: July 16, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In an unpublished opinion, the 11^th Circuit Court of Appeals affirmed an order granting summary judgment to a department store in a premises liability case. According to his complaint, a man supposedly injured his right eye when he walked into a clothing rack that was protruding into an aisle at a South Florida department store in late 2011. The man apparently struck the rack with enough force to fall backwards and hit his head. After his fall, store workers reportedly escorted the man to a customer service area, where a guest incident form was completed. In addition, one of the employees took photos of the clothing rack at issue.

After seeking medical treatment, the man filed a negligence action against the department store in a Florida state court. The case was then removed to federal court based on diversity of citizenship. In his complaint, the man accused the department store of breaching its duty of reasonable care by failing to warn him of the hazard created by the placement of the clothing rack. The man also asserted that the store knew or should have known about the dangerous condition prior to his accident. The man asked the court to award him damages for his resulting vision loss, light sensitivity, headaches, and seizures.

South Florida Court Dismisses Jones Act Case for Lack of Jurisdiction

Published on: July 14, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In Tarasewicz v. Royal Caribbean Cruises Ltd., a welder and pipefitter who was a Polish national suffered an ischemic stroke while working aboard a cruise ship off the coast of Florida. Although the man was apparently misdiagnosed initially, he was later removed from the ship and treated at a Fort Lauderdale hospital.

Less than two years later, the man and his wife filed a lawsuit against the owner of the vessel, the ship’s captain, and others in the Southern District of Florida. According to the couple’s complaint, the Polish man suffered the stroke as a direct result of the unsafe working conditions aboard the cruise ship. Because of this, the man asked the court to award him damages for negligence, breach of implied warranty, negligence under the Jones Act, failure to provide maintenance and cure, and other claims. In response, the defendants filed a motion to dismiss the man’s lawsuit because it was filed in an improper forum. According to the defendants, the United States court lacked admiralty jurisdiction.