South Florida Personal Injury Lawyers Blog

Florida’s Third District Refuses to Award Costs and Attorney’s Fees in Bungled Premises Liability Case: Design Home Remodeling Corp. v. Santana

Published on: September 19, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In Design Home Remodeling Corp. v. Santana, a man was apparently injured when he fell while visiting a property owned by a condominium association. About 18 months later, the man and his wife filed a premises liability lawsuit against the association. As part of his complaint, the man alleged the association negligently maintained the property. The association responded by arguing a non-party was responsible for any negligent maintenance that existed on the property. The couple then amended their complaint to add the non-party as a defendant in the premises liability lawsuit. The couple also claimed that the newly added defendant failed to warn the injured man about a slippery substance that existed on the floor of the condo association’s property.

Sixty days later, the new defendant served the couple with a proposed settlement offer under Section 768.79 of the Florida Statutes. This section states that a plaintiff may be held liable for a defendant’s attorney’s fees and costs if the plaintiff refuses to accept a settlement offer within 30 days in situations when the final judgment is rendered in favor of the defendant or is valued at least 25 percent below the refused settlement offer. Neither member of the couple accepted the defendant’s settlement offer.

About three years later, a trial court entered summary judgment in favor of the defendant. Summary judgment is only appropriate when no genuine issue of material fact is in dispute and a party to the lawsuit is entitled to judgment as a matter of law. Following the trial court’s order, the defendant asked the court to award the company attorney’s fees and costs. The court denied the defendant’s motion based on Florida Rule of Civil Procedure 1.442(b). Under the rule, a defendant may not make a settlement offer to a plaintiff before 90 days has passed since the lawsuit was commenced. The defendant’s motion for rehearing was denied, and the company appealed the trial court’s refusal to award attorney’s fees and costs to Florida’s Third District Court of Appeals.

Florida Appellate Court Overturns Dismissal in Uninsured Motorist Coverage Dispute: Gallon v. GEICO General Insurance Co.

Published on: September 16, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In Gallon v. GEICO General Insurance Co., a man was injured in a one-car motor vehicle collision while riding as a passenger in a woman’s automobile. The man was thrown from the car and reportedly sustained serious harm as a result of the traffic wreck. At the time of the incident, the driver carried uninsured motorist (UM) coverage on her vehicle. Following the accident, the man made a claim with the driver’s insurer for UM benefits. The insurance company claimed that the woman’s UM policy limits were $50,000 per individual. The man argued that he was entitled to receive up to $100,000 because the woman maintained UM coverage on two separate vehicles. Since the parties failed to come to an agreement regarding the automobile insurance policy limits, the man filed a lawsuit against the insurer.

As part of his lawsuit, the man accused the automobile insurance company of negligent misrepresentation. In Florida, a party alleging such a cause of action must be able to demonstrate that a material fact was misrepresented, the party making the misrepresentation knew or should have known the statement was false, the statement was made to induce another to act on the misrepresentation, and injury resulted to the party who reasonably relied on the untrue statement.

According to the injured man, the driver’s insurance policy lapsed and was reinstated for a higher premium prior to the single-vehicle wreck. He claimed that a representative for the insurer told the woman her policy would pay double UM benefits in the event of a collision because she carried coverage on two autos. The injured man argued the insurer’s agent said this in order to convince the driver to pay higher premiums. The man also stated the driver relied on the worker’s statement, only to have the company limit the man’s damages award to $50,000. The insurance company countered that the driver could not have reasonably relied on the employee’s statement because it directly conflicted with the unambiguous language of the automobile insurance policy. A trial court sided with the insurer and granted the company’s motion to dismiss the man’s lawsuit.

Florida Appeals Court Certifies Bad Faith Insurance Claim Question to Supreme Court: Boozer v. Stalley

Published on: September 12, 2014 | by Friedman Rodman Frank & Estrada, P.A.

Florida’s Fifth District Court of Appeals has certified a question of law to the Supreme Court of Florida in a bad faith insurance dispute. In Boozer v. Stalley, a boy was hurt in a motor vehicle collision that was apparently caused by a woman who was covered by two automobile insurance policies issued by related insurers. Following the collision, the guardian of the boy filed a negligence lawsuit against the woman, and her insurer secured an attorney to represent her. Following trial, jurors awarded the boy more than $11 million in damages. The insurance company paid the policy limits of $1.1 million, and the boy was unable to collect the remaining $10 million. Later, the boy’s guardian filed a third-party bad faith insurance claim against the woman’s liability insurance company. The same attorney continued to appear on behalf of the woman at the request of the insurer during post-judgment proceedings.

As part of the bad faith insurance lawsuit, the boy’s guardian sought to depose the at-fault motorist’s lawyer. The attorney refused to be questioned and asserted the attorney-client privilege. The attorney-client privilege requires a licensed attorney to protect most confidential statements made by a client in connection with his or her legal representation from disclosure. Despite this, a client may waive the privilege in a number of ways. After a trial court ordered the attorney to submit to deposition, he appeared as instructed. Although the legal advocate answered general questions posed by the boy’s guardian, the lawyer refused to disclose information he felt was privileged. The deposition was adjourned, and the woman and her attorney filed a petition for review with the Fifth District Appeals Court.

According to the boy’s guardian, his evidentiary requests were appropriate because Florida precedent states he may obtain discovery materials that would have been available to the at-fault driver. The Fifth District disagreed, however, and held that the lower court’s order compelling the woman’s attorney to disclose legally privileged materials was inappropriate and should be quashed. After analyzing the relevant case law, the Fifth District stated precedent shields attorney-client communications from discovery in a first-party bad faith claim. Since Florida case law is currently silent regarding whether attorney-client communications are shielded from discovery in a third-party bad faith insurance case, Florida’s Fifth District Court of Appeals certified the question to the Florida Supreme Court.

Florida Supreme Court Overturns Decision in Medical Malpractice Case: Saunders v. Dickens

Published on: September 9, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In Saunders v. Dickens, a Florida man went to see a physician over pain, numbness, cramps, and lack of coordination while standing. The neurologist diagnosed the man with peripheral neuropathy caused by diabetes, although the doctor did not perform tests to confirm his diagnosis. He also sent the man to a local hospital for treatment. An MRI revealed the man suffered from a narrowed spinal canal. After that, the physician apparently consulted with another doctor and performed a neurological examination on the man. Following the examination, the doctor recommended the man undergo surgery for lumbar decompression.

Unfortunately, the man’s condition worsened following surgery. As a result, his doctor ordered additional testing, which revealed other areas of compression in the man’s neck and back. Prior to a second surgery, the man developed deep venous thrombosis.

Eventually, the Florida man obtained a second opinion from a neurosurgeon. The neurosurgeon recommended the man undergo at least two additional surgeries. Before this could happen, however, the man developed degenerative quadriplegia and passed away. Prior to the man’s death, he and his wife filed a failure to diagnose lawsuit against the physician, neurosurgeon, and hospital that treated him. The man settled his claims against each defendant except the doctor with whom he initially sought treatment. According to the physician, the man’s injury resulted from his neurosurgeon’s negligence.

Florida Appeals Court Refuses to Limit Discovery Regarding Doctor’s Relationship With Law Firm in Car Accident Negligence Case: Brown v. Mittelman

Published on: September 5, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In Brown v. Mittelman, a plaintiff who was injured in a car accident sought medical treatment from a physician following the collision. The plaintiff’s attorney apparently referred the plaintiff to the medical provider. In addition, the doctor reportedly treated the plaintiff under a letter of protection agreement. Such an agreement is generally used to help an injured person pay for medical care they would not be able to afford otherwise. In many cases, a letter of protection is sent to a medical provider by a plaintiff’s attorney who agrees to remit payment for services following an accident settlement.

After the plaintiff filed a lawsuit against the defendant, the defendant sought to discover certain billing documents from the non-party physician. The doctor objected to the defendant’s request, and a trial court overruled the medical provider’s objections. After that, the lower court compelled discovery of the evidence that was sought by the defendants. In response, the non-party physician filed a writ of certiorari seeking to quash discovery with Florida’s Fourth District Court of Appeals.

According to the physician, Florida Rule of Civil Procedure 1.280(b)(5) prohibited discovery of the information sought by the defendant because there was no evidence to support the notion that the plaintiff’s law firm directly referred the plaintiff to him for treatment. The appellate court disagreed and stated a lawyer’s financial relationship with a medical provider is discoverable because the relationship may result in bias. The Fourth District added that jurors should be allowed to review evidence related to such a relationship because the doctor may have a financial interest in the outcome of the plaintiff’s negligence lawsuit.

Tampa Federal Court Refuses to Sever Bad Faith Claim Against Insurer From Underlying Lawsuit: Jirau v. Wathen

Published on: September 2, 2014 | by Friedman Rodman Frank & Estrada, P.A.

The Middle District of Florida has refused to sever a bad faith insurance claim filed against an automobile insurance company from the underlying negligence action. In Jirau v. Wathen, a man was hurt in a Brandon traffic wreck. Following the crash, the man filed a negligence lawsuit against the allegedly at-fault driver in state court. He also sought underinsured or uninsured motorist coverage from his vehicle insurer. In addition, the man accused his insurance company of acting in bad faith when settling his claim. After the man filed his lawsuit, the insurer successfully removed the case to the Middle District of Florida in Tampa based upon diversity of citizenship. Diversity of citizenship is appropriate only when each of the parties to a lawsuit is a resident of a different state, and the amount in controversy exceeds $75,000.

Following removal to federal court, the injured man sought to have the case remanded back to state court because the at-fault driver was also a Florida citizen. Despite evidence to the contrary, the auto insurer claimed diversity of citizenship existed and asked the court to sever the at-fault driver from the case rather than remand the entire lawsuit. Following a hearing, the federal court granted the injured man’s motion and sent the case back to state court. According to the Middle District of Florida, “the power to sever non-diverse defendants to maintain jurisdiction should be used sparingly” in order to prevent potential prejudice. In response, the insurance company filed a motion for reconsideration as to the bad faith claim pending against it with the federal court.

After reviewing the claims the injured man made against the at-fault driver and his insurer, the court stated that severing the bad faith cause of action would waste judicial resources. Additionally, the court held it would be unfair to require the accident victim to pursue two different cases against the same defendant in both state and federal court. The federal court added that doing so could require the plaintiff to prove damages related to the same accident twice. Since severing the claims would be unnecessarily unfair to the plaintiff, the Middle District of Florida in Tampa denied the auto insurer’s motion for reconsideration.

Orlando Federal Court Refuses to Remand Underinsured Motorist Claim Back to State Court: Stephenson v. Amica Mutual Insurance Co.

Published on: August 28, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In Stephenson v. Amica Mutual Insurance Co., a man suffered permanent physical injuries when he was struck by an automobile while riding his bicycle. Following the collision, the man filed a demand letter seeking $100,000 in damages with the provider of his underinsured-motorist coverage. After the injured man’s automobile insurance company denied his claim, he filed a lawsuit in a Florida court against the insurer and the driver who struck him, seeking more than $15,000. In response, the automobile insurance company filed a number of discovery requests that the injured man apparently ignored.

After the bicyclist settled his case against the Florida motorist, the insurance company filed a motion to remove the lawsuit to federal court based upon diversity of citizenship. In order to remove a case to federal court on this basis, the parties to a lawsuit must be citizens of different states, and the amount in controversy must exceed $75,000. In addition to filing its motion, the insurance company also submitted a request to the injured man asking him to admit that the amount in controversy did not exceed $75,000. After the bicyclist refused to answer because the question “invaded the province of the jury,” the case was removed to the Middle District of Florida in Orlando.

Not long after the personal injury case was removed to federal court, the injured man filed a motion to remand the case back to state court based on a lack of timeliness and a failure to meet the amount in controversy threshold. The Orlando court stated removal is proper when a case that was filed in state court could have initially been brought in federal court. According to the court, the injured man’s demand letter demonstrated the amount in controversy exceeded $75,000. The Orlando court also said the allegations in the man’s complaint did not provide enough information to determine the actual amount in controversy. After that, the Middle District of Florida held that the amount in controversy exceeded the jurisdictional threshold based on “judicial experience and common sense.”

Florida Appeals Court Affirms Judgment in Premises Liability Case Where Property Owner had No Actual or Constructive Notice of Dangerous Condition: Walker v. Winn-Dixie Stores, Inc.

Published on: August 25, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In Walker v. Winn-Dixie Stores, Inc., a woman claimed that she was hurt when she fell on a wet floor while visiting a Florida grocery store. According to the woman’s complaint, she was accompanied to the store by a disabled friend who utilized an electric cart in order to shop. Following the 30-minute shopping trip, the woman apparently returned her friend’s scooter to the store while he waited in her vehicle. As she was returning the electric cart, it apparently began to mist rain outside. About one minute after the woman returned the scooter, she was allegedly injured when she slipped and fell inside of the store.

The woman testified that she did not see water on the floor prior to falling. She also stated the water was not noticeable, and she had no idea how long it may have pooled before she fell. In addition, the grocery store manager stated he did not know whether it began raining immediately prior to the woman’s injury accident or earlier in the day. Still, the manager stated the umbrella racks located near the entry and shown on surveillance video of the woman’s fall were only placed in the location if rain was anticipated or ongoing.

In response to the woman’s personal injury lawsuit, the grocery store denied negligence and filed a motion for summary judgment. In a motion for summary judgment, a party to a lawsuit asks the court to find that no meaningful facts are in dispute and that the moving party is entitled to win the case without proceeding to trial. According to the trial court, Section 768.0755 of the Florida Statutes requires that a property owner have actual or constructive notice of an allegedly dangerous condition in order to be held responsible for an individual’s slip-and-fall injury. Since there was no evidence offered to demonstrate the grocery store knew or should have known about the water on the floor at the time of the woman’s accident, the trial court granted the grocery store’s motion.

Middle District of Florida Rules in Favor of Insurer Where No Meeting of the Minds Occurred in Rescinded Settlement Offer: Goodman v. SAFECO Insurance Co. of Illinois

Published on: August 21, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In Goodman v. SAFECO Insurance Co. of Illinois, an insurance company provided bodily injury and other automobile coverage to a woman whose vehicle was involved in a 2012 traffic wreck. Immediately prior to the collision, the owner of the insured vehicle apparently allowed another individual to drive her car. Unfortunately, the man who borrowed the vehicle was involved in an accident while he was operating the insured auto. Following the collision, a plaintiff who was allegedly hurt in the traffic wreck filed a personal injury claim seeking $200,000 from the owner of the vehicle’s insurance company. In response, the insurer offered to settle the plaintiff’s claim for the insured’s bodily injury liability limit of $100,000 per person. Following the offer, the insurance company and the plaintiff reportedly entered into negotiations regarding the plaintiff’s property damage.

A few months later, the plaintiff filed a Civil Remedy Notice of Insurer Violations under Florida Statute Section 624.155. According to the plaintiff, the automobile insurance company failed to act in good faith when it attempted to settle the plaintiff’s car accident claim. In addition, the plaintiff stated her claim could be settled for about $107,000. Later, the insurer withdrew its settlement offer and stated the company was not required to cover the automobile accident. In response, the plaintiff filed a breach of contract lawsuit against the insurer and the owner of the vehicle that allegedly harmed her in a Florida court. The insurance company then removed the case to the Middle District of Florida.

Eventually, the insurer filed a motion for summary judgment against the plaintiff asserting that it could not have breached a settlement agreement with her absent the existence of an enforceable contract. When a party to a lawsuit files a motion for summary judgment, the party is asking the court to rule in its favor without proceeding to trial. In general, such a motion will not be granted unless there is no material issue of fact in dispute and the moving party is entitled to judgment as a matter of law. A court must view a motion for summary judgment in the light that is most favorable to the non-moving party.

Florida’s Fifth District Court of Appeals Holds Man Must Litigate Injury Case Separately From Bad-Faith Insurance Claim: GEICO Casualty Co. v. Barber

Published on: August 18, 2014 | by Friedman Rodman Frank & Estrada, P.A.

The District Court of Appeal of Florida, Fifth District has ruled that a man must litigate his bad-faith claim against an automobile insurance company separately from his personal injury case. In GEICO Casualty Co. v. Barber, a man filed a complaint for uninsured or underinsured motorist benefits from his automobile insurer following an injury traffic crash. The man also filed a Civil Remedy Notice claiming his harm exceeded his policy limits. The insurer responded to the man’s claim by stating it would not offer to pay him the entire policy limits of $10,000.

Several years later, the insurer sent the man a proposed settlement offer of $10,000 after learning he underwent surgery that was apparently related to his accident injuries. Despite the insurer’s proposal, the man refused to accept the company’s offer of settlement.

Eventually, the insurer filed a motion for summary judgment asking the court to rule in the company’s favor. Before the court issued a ruling, however, the injured man amended his complaint and asserted additional claims against the insurance company. After the court held several hearings, it granted the insurer’s motion with regard to the underinsured motorist benefits because the company made a confession of judgment. A confession of judgment normally occurs when one party to a lawsuit agrees to allow the opposing party to enter judgment against it. In addition, the court allowed the injured man to file a second amended complaint including a bad-faith cause of action against the insurer. The insurance company responded by filing an appeal with Florida’s Fifth District Court of Appeals.