South Florida Personal Injury Lawyers Blog

Appeals Court Says Video Deposition Evidence May be Used During Closing Argument in Florida

Published on: January 5, 2015 | by Friedman Rodman Frank & Estrada, P.A.

Florida’s First District has refused to order a new trial in a truck accident case. In Borden Dairy Co. of Alabama, LLC v. Kuhajda, a woman was apparently hurt in a Florida traffic collision that was caused by the driver of a 30-foot delivery truck. Following the accident, the woman filed a negligence lawsuit against the driver of the truck and his employer in state court. In her complaint, the woman sought financial compensation for the injuries she allegedly sustained in the motor vehicle crash.

The delivery truck driver’s videotaped deposition was admitted into evidence at trial. At the time, neither defendant objected to its inclusion. In addition, the driver testified before jurors that the collision occurred while he was turning left out of a parking lot across a divided highway. The man claimed that another car unexpectedly pulled out of a different parking lot and prevented him from continuing on his intended path. As a result, the driver stated the delivery truck was stopped with the trailer blocking each of the southbound lanes of the roadway when the accident occurred.

First District Appellate Court Affirms Decision Denying Florida Workers’ Compensation Benefits Over Employee Misrepresentation

Published on: December 30, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In Clark v. R&L Carriers, a semi-truck driver was allegedly injured on the job in two separate traffic collisions in 2012. According to the trucker, he suffered serious neck, back, and shoulder injuries in the two accidents. Following the crashes, the man’s employer authorized medical care for both incidents. Later, the employer received a copy of the man’s medical records that predated the 2012 collisions. In the healthcare records, the trucker apparently complained of injuries that were similar to those for which he sought compensation from his employer. Around the same time, the driver’s employer also learned that the man engaged in prior litigation over this harm in another state. As a result, the trucker’s employer refused to compensate him for any further benefits related to the 2012 tractor-trailer accidents, based on the truck driver’s alleged misrepresentation.

Following a hearing on the matter, a Florida Judge of Compensation Claims (“JCC”) ruled that the truck driver committed misrepresentation when he did not alert his physicians to his prior medical history. Because of this, the JCC held that the trucker’s workers’ compensation claims were barred under Florida law. In response, the worker asked Florida’s First District Court of Appeal to review the decision.

Appellate Court Rules Negligence Case Against Hospital is Not Subject to Florida Medical Malpractice Act

Published on: December 24, 2014 | by Friedman Rodman Frank & Estrada, P.A.

Florida’s Fifth Circuit Court of Appeal has refused to grant a hospital’s petition for a writ of certiorari. In Holmes Regional Medical Center, Inc. v. Dumigan, a man was apparently injured by a drug that was used on him during a surgical procedure even though it was previously recalled. As a result of the hospital’s alleged failure to dispose of the recalled drug, the man and his wife filed a negligence and products liability action against the medical facility where his surgery was performed. After a trial court refused to grant the hospital’s motion to dismiss the case, the hospital asked Florida’s Fifth District Court of Appeal to review the lower court’s order.

According to the hospital’s petition for a writ of certiorari, the plaintiffs’ lawsuit was inappropriately characterized as a products liability and negligence action. The medical facility claimed that the statutory presuit notice requirements enumerated in the Florida Medical Malpractice Act (“FMMA”) instead applied to the case. Since the plaintiffs failed to comply with the FMMA’s notice requirements, the hospital argued that the trial court should have dismissed the case.

Florida Appeals Court Holds Auto Insurer is Not Liable for PIP Benefits Above the Statutory Maximum Absent Bad Faith

Published on: December 22, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In Geico Indemnity Co. v. Gables Ins. Recovery, Inc., a woman was hurt in a motor vehicle collision. Following the accident, she obtained medical treatment and assigned the personal injury protection (“PIP”) benefits provided by her car insurance company to the business that performed her x-rays. The company then assigned the woman’s PIP benefits to a medical insurer. After the medical insurer submitted a request for payment to the woman’s motor vehicle insurer, it received less than the total bill.

Next, the medical insurer filed a breach of contract lawsuit against the motor vehicle insurance company. According to the auto insurer, it paid the full benefits of $10,000 under the woman’s PIP policy to the plaintiff pursuant to Section 627.736(5)(a)2.f. of the Florida Statutes. The medical insurer argued that the PIP provider was required to pay 80 percent of the woman’s medical bills and filed a motion for summary disposition. The motor vehicle insurance company then filed a cross motion, stating all of the woman’s PIP benefits were exhausted. The trial court granted the medical insurer’s motion, and the PIP provider appealed the case to the Circuit Court of the Eleventh Judicial Circuit. After the appellate court affirmed the trial court’s order, the auto insurer filed an appeal with Florida’s Third District Court of Appeals.

Florida’s Fifth District Refuses to Consider Unpreserved Liability Issue in Car Accident Case

Published on: December 17, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In Witherell v. Larimer, a young woman apparently struck a male pedestrian while driving her mother’s automobile. As a result, the man filed a personal injury lawsuit against the driver and her mother in a Florida court. At trial, both parties claimed the other was responsible for the injury accident. According to the man, the driver struck him because she failed to pay sufficient attention to the roadway. The motorist countered that the pedestrian contributed to the incident because he was under the influence of alcohol when he crossed the roadway.

After both the pedestrian and the driver presented expert evidence, jurors returned a verdict stating each party was 50 percent responsible for the injury accident. In addition, the jury awarded the man no noneconomic damages and almost $90,000 in past medical bills. The presiding judge and both parties agreed that the noneconomic damages award was inconsistent with the medical expenses awarded to the pedestrian and asked jurors to reconsider their decision. The jury then increased the man’s noneconomic damages award to $1, and the judge entered final judgment in the lawsuit.

Florida Appellate Court Reverses Directed Verdict in Favor of Tobacco Company in Negligence and Strict Liability Case

Published on: December 15, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In Whitney v. RJ Reynolds Tobacco Co., a woman filed a strict liability and negligence lawsuit against a tobacco company in a Florida state court over the company’s allegedly defectively designed cigarettes. According to the woman, the design defects made her more apt to become addicted to cigarette smoking. As a result, the woman purportedly suffered lung cancer.

At trial, the woman presented a great deal of evidence to support her claims. As part of her case, the woman obtained testimony from an expert physician. The doctor testified under oath that the purported design defects included in the tobacco company’s product made it more likely for smokers to become addicted. The physician also claimed that the cigarettes at issue made it possible for carcinogen-containing smoke to enter deeper lung cavities than other types of tobacco products. According to the expert, this made it more likely that a smoker who used the product at issue would develop cancer. In addition, the doctor stated the cigarettes did not deliver on their promise to reduce health risks by lowering the amount of tar in the product.

Supreme Court of Florida Holds Deceased Worker’s Estate Cannot Recover Tort Judgment from Employer’s Insurance Company

Published on: December 10, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In Morales v. Zenith Ins. Co., a Florida man was tragically killed in a workplace accident. Following the fatal incident, the decedent’s wife agreed to a workers’ compensation settlement with the man’s employer and the employer’s insurance company. The wife also signed a release stating the settlement was the sole remedy for which the insurer would provide coverage to the employer.

Prior to the workers’ compensation settlement, the man’s estate filed a wrongful death action against the man’s employer. As a result, a default judgment of nearly $10 million was entered in favor of the estate. After the employer’s insurer refused to pay the judgment, the estate filed a breach of contract lawsuit against the insurance company in a Florida court. The insurer removed the case to the Middle District of Florida and filed a motion for summary judgment. In its motion, the insurer argued that a workers’ compensation exclusion included in the employer’s policy barred the estate from suing the company. The federal court then granted the insurance company’s motion and entered judgment in its favor.

Florida Appeals Court Orders New Trial in Motorcycle Crash Case

Published on: December 8, 2014 | by Friedman Rodman Frank & Estrada, P.A.

Florida’s Second District Court of Appeals has ordered a new trial in a motorcycle collision case. In Shaver v. Carpenter, a motorcycle carrying a husband and wife was struck by an automobile in an intersection. Following the traffic wreck, the couple filed a negligence lawsuit against the driver who allegedly caused their crash injuries. As expected, the issue of fault was a main source of contention at trial. In the end, a jury found that the defendant motorist was 95 percent at fault for the couple’s accident harm. The jury also determined that the couple was five percent liable for the collision. In response to the jury’s award, the allegedly negligent motorist appealed the damages award.

On appeal, Florida’s Second District stated the damages award issued by the jury was tainted by inadmissible evidence. According to the court, a state trooper was erroneously permitted to offer testimony regarding which driver failed to yield the right of way. Although the allegedly at-fault driver admitted some level of culpability for the collision, the appellate court found that evidence related to which driver had the right of way was inconclusive. Despite the automobile driver’s objections, the lower court allowed the law enforcement officer to state the defendant driver violated the couple’s right of way. The Second District held that this ruling was in error based on the relevant case law.

Jacksonville Court Rules That Jury Verdict Must be Offset in Underinsured Motorist Coverage Case

Published on: December 3, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In Primo v. State Farm Mutual Automobile Insurance Co., a man was allegedly injured when his car was struck from behind by an underinsured motorist. As a result of the collision, the man received a $10,000 settlement from the negligent driver. After that, the injured man filed a lawsuit in the Middle District of Florida seeking underinsured motorist benefits from his automobile insurer. In Florida, underinsured motorist coverage is a supplemental automobile insurance policy option that provides a driver with bodily injury and property damage coverage in the event that he or she is involved in a collision with a motorist who lacks sufficient liability insurance coverage.

Prior to trial, the man and his insurer agreed that the underinsured driver acted negligently. Because of this, the only issue for the jury was whether and to what degree the negligent motorist caused the man’s harm. Following trial, the jurors returned a verdict stating the negligent driver caused the man more than $57,000 in past damages. In addition, the jury found that the injured man did not sustain any permanent injuries and declined to award damages based on his future impairment or medical expenses. Ultimately, the jurors failed to award the man any non-economic damages. In general, non-economic damages include pain, suffering, loss of consortium, and other subjective types of harm.

Tampa Court Holds Diversity Jurisdiction is Proper in Medical Malpractice Case Where Parties Were Fraudulently Joined

Published on: November 26, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In Byrnes v. Small, a Florida woman was allegedly injured in 2006 by a medical product that was implanted into her spine in a manner that was not approved by the nation’s Food and Drug Administration. In 2014, the allegedly injured woman filed a personal injury lawsuit against the company that designed, manufactured, and distributed the product that allegedly harmed her, her doctor, and his employer in a Florida state court. Soon afterward, the product manufacturer removed the woman’s case to the Middle District of Florida in Tampa based on diversity jurisdiction.

Federal diversity jurisdiction is appropriate under 28 U.S.C. Section 1332(a) when the parties to a lawsuit are citizens of different states and the amount in controversy exceeds $75,000. In general, the party seeking removal to federal court must demonstrate that federal jurisdiction was justified at the time the case was filed. According to the medical product manufacturer, the physician and his employer were fraudulently joined in the lawsuit in an effort to defeat federal jurisdiction. The manufacturer argued that such joinder was not permitted because the statute of limitations for filing a case against each of the other two defendants had passed. The manufacturer argued before the court that this meant the citizenship of the non-diverse defendants should be ignored. In response, the allegedly injured woman claimed the case should be remanded because the medical product manufacturer failed to meet its burden of demonstrating diversity.