South Florida Personal Injury Lawyers Blog

Florida’s Fourth District Holds Information Prepared in Anticipation of Litigation is Not Discoverable in Slip and Fall Case

Published on: February 18, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In Millard Mall Service, Inc. v. Bolda, a woman filed a lawsuit against the owner of a shopping mall after she sustained an injury in a March 2011 slip and fall accident. In support of her case, the woman requested certain documents from the mall owner. As part of a subpoena, the woman asked the owner for any records related to substantially similar accidents within the preceding three-year-period, mall cleaning and maintenance records from March 2011, and any information related to cleaning or maintenance that was performed by a third party during the same month.

In response to the woman’s discovery requests, the owner of the mall argued the documents were not discoverable because they were prepared in anticipation of litigation. According to the mall owner, the information requested included photos, discussions, and mental impressions regarding incidents that took place on the premises. After reviewing the documents at issue in his chambers, the presiding trial court judge ordered the mall owner to produce the requested information except for the incident report related to the woman’s fall. In response to the trial court’s order, the owner of the mall sought certiorari review before Florida’s Fourth District Court of Appeal.

Middle District of Florida Denies Motion for Summary Judgment in Bad Faith Insurance Case

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

In Taylor v. Geico Indemnity Co., a driver was involved in an at-fault motor vehicle collision with a motorcyclist. Following the traffic wreck, the biker was treated for numerous broken bones. The motorcyclist elected to receive compensation from his own motor vehicle insurer, which would then seek subrogation from the at-fault driver’s liability insurance company. At the time of the collision, the automobile driver carried $10,000 in bodily injury and property damage liability accident coverage.

Eventually, 90 percent of the fault for the collision was attributed to the insured car driver. As a result, the man’s liability insurer notified him that he may be liable for any damages to the motorcyclist that exceeded the limits of the liability insurance policy he carried.

Order Denying Florida Workers’ Compensation Benefits Advance Request is a Final Order for Purposes of Appeal

Published on: February 11, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In Shannon v. Cheney Bros., Inc., a man suffered a workplace back injury in October 2010. The man’s employer accepted liability for the injury and authorized the employee to seek medical treatment. Later, the employee was involved in a traffic collision that was not related to work. As a result of the accident, the worker suffered additional back harm. Not long after the crash occurred, the man’s doctor stated it was his medical opinion that the employee’s workplace injury was no longer the major cause of his need for medical care. As a result, the man’s employer denied his request for follow-up medical treatment.

Next, the injured worker filed two requests for medical benefits related to his back harm. While his requests were pending, the worker sought an advance workers’ compensation payment. Following an evidentiary hearing before a Judge of Compensation Claims (“JCC”), the man’s request was denied and the worker did not appeal the decision. Several months later, the JCC also denied the employee’s two petitions for medical benefits. The worker then appealed each of the JCC’s decisions to Florida’s First District Court of Appeal.

Northern District of Florida Rules Bad Faith Insurance Case Was Filed Prematurely

Published on: February 9, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In Mann v. Taylor, a woman was hurt in a traffic collision that was allegedly caused by another driver. As a result of her accident, she filed a negligence lawsuit against the at-fault motorist in a Florida court. The injured woman also sought uninsured motorist benefits from her own automobile insurance company. In addition, the hurt motorist accused the company of refusing to settle her claim in good faith and asked the court to issue a declaratory judgment against the insurer. After the insurer successfully removed the woman’s case to the Northern District of Florida based on diversity of citizenship, the business filed a motion to dismiss or strike portions of the hurt driver’s claims against the company.

First, the federal court stated an injured person may bring an uninsured motorist case against his or her auto insurance company before resolving the individual’s claim against the negligent party. After examining the woman’s complaint, however, the Northern District of Florida found that the injured driver’s request for relief was unclear and ambiguous. Since the claim was not sufficiently pleaded, the court dismissed the hurt woman’s uninsured motorist benefits claim with leave to amend it in the future.

Florida Court Reminds Plaintiffs General Maritime Law Does Not Recognize a Loss of Consortium Cause of Action

Published on: February 4, 2015 | by Friedman Rodman Frank & Estrada, P.A.

The Southern District of Florida has dismissed a breach of contract and loss of consortium claim that was filed against a cruise ship company. In Friedhofer v. NCL Ltd., two women apparently suffered damage to their hair while traveling aboard a cruise ship. As a result, the women and their spouses filed a lawsuit against the owner of the cruise ship in the Southern District of Florida. According to their complaint, the cruise ship owner breached its contract and acted negligently when the water on board the ship caused damage to the passengers’ hair. In addition, the plaintiffs sought loss of consortium benefits.

In response to the lawsuit, the cruise line filed a Rule 12(b)(6) motion to dismiss the plaintiffs’ breach of contract and loss of consortium claims for failure to state a claim upon which relief may be granted. Typically, such a motion is appropriate when a plaintiff does not plead sufficient facts to demonstrate he or she is entitled to legal relief. When considering a Rule 12(b)(6) motion, a court must accept all of the facts included in the pleading as true and construe any inferences in favor of the non-moving party.

Order Providing Discounted Benefits for Pre-Existing Condition Overturned in Florida Workers’ Compensation Case

Published on: February 2, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In City of Fort Pierce v. Spence, an employee was hurt in a 2012 work-related car accident. Following the collision, the man’s employer admitted that his claim was compensable. An authorized physician recommended that the worker undergo a number of procedures on his back, including facet injections and orthopedic surgery. In a deposition, however, the doctor stated a degenerative spinal condition that was diagnosed prior to the accident was about 70 percent responsible for the worker’s need for the facet injections. The doctor also said the condition was normal for a man who was the worker’s age. Following a hearing before a Judge of Compensation Claims (“JCC”), the man received a discounted award related to the facet injections. In addition, the JCC denied the man’s orthopedic surgery claim.

On appeal, Florida’s First District stated the medical evidence offered in the case suggested that the man’s pre-existing degenerative condition was the major cause of his need for the facet injections. The court held that the JCC misapplied the law when she took into account the physician’s statement that the man’s back disorder was normal given his age. According to the appellate court, the relevant inquiry was whether the underlying condition independently required treatment before the employee was hurt at work. Since the medical evidence suggested it did, the District Court of Appeal of Florida, First District overturned the JCC’s award for the facet injections and affirmed her decision on all other counts.

Appellate Court Holds Negligent Security Plaintiff’s Status is Relevant in Lawsuit Against Florida Apartment Complex

Published on: January 29, 2015 | by Friedman Rodman Frank & Estrada, P.A.

A Florida appeals court has found that a negligent security plaintiff’s status on the land is relevant. In Nicholson v. Stonybrook Apartments, LLC, a woman was shot while attending a party in the common area of an apartment complex. Following the incident, the woman filed a negligence lawsuit against the complex in a Florida court. According to the woman’s complaint, the apartment complex failed to provide adequate security or maintain the premises in a safe manner. In response, the complex countered that the woman was trespassing on the property when she was shot. Because of this, the complex argued that its duties related to the woman’s safety were extremely limited.

Prior to trial, the woman sought to exclude all evidence related to her status on the property at the time of the shooting. In addition, the woman argued that whether she was a trespasser was irrelevant because she did not file a premises liability case against the apartment complex. The trial court ruled that the woman’s status to the land at the time of her injury was important because it had an effect on the duty the apartment complex owed to her. Because of this, the trial court instructed the jurors to determine whether the injured woman was a trespasser or an invitee when she was shot.

Florida’s Second District Reverses Over Trial Court’s Erroneous PIP Offset Ruling

Published on: January 26, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In Moody v. Dorsett, a man was hurt in a motor vehicle collision that a jury determined was caused by another driver. As a result, jurors returned a verdict of about $11,000 against the negligent woman. Prior to trial, the man received approximately $5,500 in personal injury protection (“PIP”) benefits from his automobile insurer. After the jury returned its verdict, the negligent driver asked the court to offset the award by the amount of PIP benefits that were received by the injured man. The trial court refused, and the woman filed an appeal with Florida’s Second District Court of Appeal.

In the State of Florida, drivers must maintain $10,000 in PIP insurance protection. This coverage allows a motorist or other individual to collect up to $10,000 in order to pay for any immediate medical expenses regardless of fault. In order to recover under a PIP policy, current Florida law requires an individual who was injured in a motor vehicle collision to seek medical care within two weeks of the traffic wreck. A PIP policy will typically pay for 80 percent of an accident victim’s medical costs up to the policy’s limit of liability. A Florida motorist may increase that coverage to 100 percent of his or her accident-related medical expenses by purchasing an optional extended PIP policy.

Southern District of Florida Holds UIM Benefits Case Must be Adjudicated Before Bad Faith Insurance Claim May be Considered

Published on: January 22, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In Shapiro v. Government Employees Insurance Co., a couple was seriously injured in a Florida automobile accident that was caused by an uninsured motorist. At the time of the collision, the hurt individuals maintained an uninsured and underinsured motorist (“UIM”) policy on each of their vehicles. Following the automobile crash, the couple sought financial compensation from their UIM insurer. Unfortunately, the insurance company refused to pay the couple damages for the harm each sustained in the traffic wreck. As a result, the couple filed a claim for UIM benefits in Broward County. The couple also sought a declaratory judgment under Sections 86.011 and 86.111 of the Florida Statutes and accused their UIM insurer of committing bad faith.

In response to the couple’s complaint, the insurance company removed the lawsuit to the United States District Court for the Southern District of Florida, based on diversity of citizenship. After that, the company filed a motion to dismiss the couple’s bad faith claim as well as their request for a declaratory judgment.

Appellate Court Affirms Legal Fees Award for Plaintiffs in Florida Medical Malpractice Case

Published on: January 19, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In Duong v. Ziadie, a woman filed a medical malpractice lawsuit on behalf of her incapacitated son against his doctor, the practice where the doctor was employed, and other defendants. According to the woman’s complaint, the physician’s negligent care caused her son to become permanently paralyzed. In her lawsuit, the mother sought damages related to her son’s medical bills, pain and suffering, and loss of earning capacity. She also asked the court to award his minor children financial compensation for their loss of parental services and other damages.

Prior to trial, the mother submitted a formal proposal for the settlement of each person’s claim to the allegedly negligent physician. The woman also stated she would seek sanctions against the doctor if he refused the offer and a jury issued an award against him for at least 25 percent more than her $1 million proposal. The man’s doctor refused to settle the case, and the lawsuit proceeded to trial. After reviewing the evidence, jurors issued an award of approximately $10 million in favor of the plaintiffs. In addition, the jury found that the physician was 75 percent responsible for the incapacitated man’s harm. The jurors also determined that another doctor was 25 percent at fault.