South Florida Personal Injury Lawyers Blog

Florida Appeals Court Rules Insurance Company May Not be Joined in Pending Fatal Car Accident Lawsuit

Published on: September 8, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In Geico General Ins. Co. v. Lepine, a Florida man was unfortunately killed in a motor vehicle collision. Following the accident, the man’s wife filed a lawsuit on behalf of herself and her husband’s estate against the driver who was allegedly responsible for the fatal traffic wreck and his automobile insurer. According to the woman’s complaint, the insurance company reneged on its verbal agreement to pay her the full policy limits of $100,000.

In response to the lawsuit, the insurer filed a motion to dismiss the breach of contract claims brought against the company. In its motion, the business argued Section 627.4136 of the Florida Statutes barred the decedent’s wife from filing a direct cause of action against the insurance company. Under the so-called nonjoinder statute, a noninsured may not file a direct action against an insurance company in Florida without first obtaining a settlement or verdict against the insured party.

Negligence Lawsuit Over Florida Psychiatric Patient’s Death Must Comply With Pre-Suit Notice Requirements Enumerated in Medical Malpractice Reform Act

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

In Shands Teaching Hospital and Clinics, Inc. v. Estate of Lawson, a woman with a history of mental illness was admitted to a hospital’s locked psychiatric unit in 2013. Unfortunately, the woman somehow got access to a facility worker’s keys and escaped the building. After that, the woman ran onto a nearby highway and was struck by a vehicle. Sadly, the woman died as a result of her injuries.

Following the woman’s death, her estate filed an ordinary negligence lawsuit against the hospital in a Florida court. The hospital filed a motion to dismiss the case and asserted that the estate’s lawsuit was actually a medical negligence complaint. According to the medical facility, the estate’s case was subject to dismissal because it failed to comply with the pre-suit notice requirements enumerated in Chapter 766 of the Florida Statutes. The trial court denied the hospital’s motion, and the facility sought a writ of certiorari to quash the lower court’s order from Florida’s First District Court of Appeal.

Tragic Infant Death Apparently Caused by Florida Daycare Worker Was Excluded from Personal Auto Insurance Policy

Published on: September 1, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In Bryant v. Windhaven Ins. Co., a Florida man purchased a personal automobile liability policy from an insurance company. After securing the policy, the man operated a van in the course of his employment with a daycare center. As part of his job duties, the man picked up children and drove them to the daycare center each day. Tragically, the driver apparently picked up an infant and forgot the child in the van in July 2011. The infant unfortunately passed away before he was discovered, strapped into his car seat seven hours later.

Following the child’s untimely death, his estate filed a wrongful death lawsuit against the driver, the daycare center, and the owner of the property where the daycare operated. In response to the case, the driver requested that his personal automobile insurer defend and indemnify him. The insurer responded by stating the policy did not apply to the daycare center’s van. According to the insurer, the man’s insurance policy explicitly excluded liability arising from any vehicle that was being used in the course of a driver’s employment and any vehicle other than that covered by the policy that was “furnished or available” for a driver’s regular use.

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.