South Florida Personal Injury Lawyers Blog

Southern District of Florida Dismisses Mesothelioma Lawsuit Against Manufacturing Company: Rothchild v. Crane Co.

Published on: August 14, 2014 | by Friedman Rodman Frank & Estrada, P.A.

The Southern District of Florida has dismissed a man’s damages claim against a company he alleges caused him to be exposed to asbestos. In Rothchild v. Crane Co., a man who contracted mesothelioma from his exposure to asbestos fibers filed a lawsuit in state court seeking damages from a manufacturing and distributing company. After the case was removed to federal court, the man alleged he was injured as a result of his exposure to products containing asbestos that the company produced and sold. Although the man claimed that he was exposed to the company’s asbestos-containing products at a manufacturing plant in Boynton Beach between 1961 and 2003 in his state court complaint, neither party to the lawsuit referred to this purported exposure after the case was removed to federal court. In response to the man’s injury lawsuit, the company filed a motion to dismiss the case for failure to state a claim upon which relief may be granted. The company argued that the man failed to plead his case with enough specificity to determine whether the business had any role in his asbestos exposure.

According to the court, the Federal Rules of Civil Procedure require that a plaintiff in a lawsuit plead his or her case with a “short and plain statement of the claim showing that the pleader is entitled to relief.” In addition, the facts alleged must be sufficient to demonstrate that a plaintiff has a plausible claim for relief. The court stated it is required to view a plaintiff’s allegations as true when considering a motion to dismiss a lawsuit. Still, a court may only consider those allegations and exhibits provided in the plaintiff’s complaint.

After examining the man’s federal pleading, the court held that it was not sufficient. The Southern District of Florida stated the complaint did not contain enough facts to demonstrate the company may have committed the acts alleged. Because of this, the federal court granted the company’s motion to dismiss the man’s lawsuit and provided the plaintiff with 30 days during which to amend his pleading to add more specificity.

Florida Court Grants Summary Judgment in Favor of Insurer in Motorcycle Crash Case: American Economy Ins. Co. v. Traylor/Wolfe Architects, Inc.

Published on: August 11, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In American Economy Ins. Co. v. Traylor/Wolfe Architects, Inc., a man filed a personal injury lawsuit against an architect and his company following a motor vehicle accident. According to the man’s complaint, he was injured when the architect caused a collision by negligently driving his personal sport utility vehicle into the path of his motorcycle. In his complaint, the man alleged the architecture company was vicariously liable for the architect’s negligent behavior. The doctrine of vicarious liability allows an injured person to hold an employer financially responsible for the negligent acts of a worker if the worker was under the employer’s control at the time and the employee was acting within the scope of his or her work duties.

At the time of the accident, the architect’s company was insured by a business policy. After the lawsuit was filed, the architectural firm’s insurance company filed a motion for summary judgment, alleging the insurer had no duty to defend or indemnify the architect or his firm under the terms of the insurance policy. In a motion for summary judgment, a party to a lawsuit asks the court to rule in its favor because no genuine issue of material fact is in dispute and the party is entitled to judgment as a matter of law. When a court considers such a motion, the facts of the case are normally viewed in the light that is most favorable to the non-moving party. The injured man opposed the insurance company’s motion, and the Middle District of Florida held a hearing on the matter.

According to the insurer, the architect was not operating the vehicle for a business purpose at the time of the motor vehicle wreck. While reviewing the insurer’s motion, the federal court examined the undisputed facts of the case in order to determine whether the architect was in fact operating his vehicle within the scope of his employment. Although the architect made a business trip to a mobile telephone store prior to the accident, the court found there was no evidence beyond the injured man’s speculation that the architect was using his vehicle for business purposes at the time the collision occurred. The court stated the two trips that the architect took on the day of the accident were separate. In addition, evidence offered to the court indicated the nature of the trip he was taking at the time of the crash was personal. Since the undisputed evidence demonstrated the architect was not operating his SUV within the scope of his employment with his company when he collided with the motorcycle rider, the Middle District of Florida granted the business insurer’s motion for summary judgment and held the insurance company had no duty to defend the architect or his firm.

$15.8 Million Jury Award Reduced in Wellington Family’s Wrongful Death Case: Wisekal v. Laboratory Corp. of America Holdings

Published on: August 7, 2014 | by Friedman Rodman Frank & Estrada, P.A.

The United States District Court for the Southern District of Florida has overturned a jury’s award of approximately $15.8 million in non-economic damages in a wrongful death lawsuit. In Wisekal v. Laboratory Corp. of America Holdings, a laboratory processed two cancer screening tests for a Wellington woman over the course of two years. Although both tests returned a negative result, the woman went to a hospital emergency room for pain and learned she had a large cancerous tumor. She later died as a result of the cancer, and her estate filed a wrongful death lawsuit against both the laboratory and the cytotechnologist who examined the woman’s laboratory specimen in federal court. Following trial, a jury awarded the woman’s estate over $20 million in economic and non-economic damages. Since the jurors determined the woman was 25 percent at fault for her death, the final award was reduced by one-quarter.

In response to the jury’s multi-million dollar award, the defendants filed a motion for remittitur or a new trial on the issue of damages. When a party to a lawsuit files a motion for remittitur, the party is asking the judge to reduce the amount of a jury’s verdict because it was excessive based upon the facts of the case. The Southern District of Florida first said the evidence offered at trial reasonably supported the jury’s award for lost earnings and other economic damages. Next, the court examined the defendants’ claim that $20 million in non-economic damages such as loss of companionship for the woman’s surviving family members was too high. Although the federal court disagreed with the defendants’ argument that the jury award could only have resulted from passion or prejudice, the Southern District of Florida held that the non-economic damages award was not logically supported by the evidence offered at trial.

Florida law requires that a non-economic damages award must be reasonably related to both the facts of a case and the general trend in similar cases. When determining whether a jury’s award was excessive, a court applying Florida law must determine if it was the result of prejudice or passion, if the jurors ignored any relevant evidence, if the award was derived through speculation and conjecture, if the award was reasonably related to the injured party’s damages suffered, and if reasonable people could have arrived at the same damages award based upon the evidence. Since the jury’s non-economic damages award was excessive when compared to similar wrongful death cases, and there was no evidence offered to support such a large award, the court granted the defendants’ motion for remittitur on the issue of non-economic damages. The Southern District of Florida reduced the non-economic damages in the case to $5 million before the deceased woman’s comparative fault was taken into account. The court also ordered a new trial on the issue of non-economic damages, should the woman’s estate refuse to accept the reduced award.

11th Circuit Says Florida Workers’ Compensation Laws Apply to Temporary Driver Injured in Dump Truck Crash: Wesco Insurance Co. v. Casto

Published on: August 4, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In Wesco Insurance Co. v. Casto, a man sued a Florida company in federal court for personal injuries he allegedly suffered in a collision while driving a dump truck that was owned by the company. In response to the lawsuit, the company sought defense and indemnity from its motor vehicle insurer. The insurance company then filed a motion for summary judgment, arguing the injured man was an employee at the time of his injury. According to the insurer, the man’s injury was subject to the Floridaworkers’ compensation statute and excluded from coverage pursuant to the terms of the company’s automobile policy. When a party to a lawsuit files a motion for summary judgment, that party is asking the court to rule in his or her favor because no material facts are in dispute and the party is entitled to judgment as a matter of law. The district court granted the insurer’s motion, and the injured man filed an appeal with the 11th Circuit Court of Appeals.

On appeal, the injured man argued that his harm was not properly subject to the workers’ compensation statute because he was not being compensated for driving the dump truck. Instead, he claimed that he was a volunteer. The man also claimed that the district court committed error when it granted the insurer’s motion for summary judgment because there was a genuine issue of material fact regarding whether he was a volunteer or temporary worker who was not included under the company’s motor vehicle insurance coverage.

First, the 11th Circuit examined whether the injured man was in fact a volunteer at the time of the dump truck crash. The court stated the relevant inquiry regarding whether a person is a volunteer relates to the expectation of payment for services. Since the injured man testified that he expected to be compensated for driving the dump truck on the date of the accident, and no contrary evidence was offered to the district court, the appellate court held that the man was not a volunteer under Florida law.

Orlando Court Rules on Evidentiary Issues in Bad Faith Insurance Case: Soto v. GEICO Indemnity Co.

Published on: July 29, 2014 | by Friedman Rodman Frank & Estrada, P.A.

The Middle District of Florida in Orlando has refused to allow an automobile insurance company to introduce certain evidence in a bad faith insurance lawsuit. In Soto v. GEICO Indemnity Co., two drivers were involved in a motor vehicle accident in Volusia County, Florida. At the time of the crash, the at-fault driver was insured by GEICO Indemnity Co. Following the traffic wreck, the other motorist sued the at-fault driver and her insurer for damages related to the injuries the plaintiff allegedly sustained in the auto collision. Following a trial before the Circuit Court of the Seventh Judicial Circuit in and for Volusia County, the plaintiff obtained a judgment of more than $100,000 against the driver who caused the accident.

The plaintiff later filed a third-party bad faith insurance lawsuit against the at-fault driver’s auto insurance company, alleging the insurer committed bad faith in handling her claim against the other motorist. In Florida, an insurer has a duty to pay a valid insurance claim in good faith and without unreasonable delay. If an insurance company fails to do so, it may be held accountable.

Both parties to the lawsuit reportedly agreed that the only issue at trial was whether the insurer acted in good faith when it handled the plaintiff’s claim against the at-fault driver. Prior to trial, the plaintiff and the insurer filed a number of motions in limine. In general, a motion in limine asks a judge to determine whether certain evidence may be included or excluded before the finder of fact.

Florida Court Dismisses Slip-and-Fall Case Against Cruise Line: Torres v. Carnival Corp.

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

The Southern District of Florida has dismissed a slip-and-fall case against a cruise ship operator. In Torres v. Carnival Corp., a passenger on a cruise ship filed a negligence and failure to warn lawsuit against the company that owns the vessel on which she traveled, seeking damages for the injuries she allegedly sustained in a slip-and-fall accident on an exterior deck. According to the woman, she tripped over a raised threshold that was obscured by a rug while walking through an opening during disembarkation.

In response to the woman’s lawsuit, the cruise ship company filed a motion for summary judgment. When a party to a lawsuit files such a motion, the party is asking the court to find that no genuine issue of material fact exists and that the party is entitled to judgment as a matter of law. When considering a motion for summary judgment, a court must view all of the evidence offered by each party in the light that is most favorable to the non-moving party. When a summary judgment motion is granted, a court is essentially stating a jury trial is not required based on the facts of the dispute.

To prove negligence, an injured person is required to demonstrate that an at-fault party owed him or her a duty, violated that duty, and directly caused his or her harm because of that violation. According to the Southern District of Florida, the woman failed to carry her burden of proving negligence because she did not demonstrate the carpet lying on the threshold was unreasonably dangerous. In fact, testimony offered to the court suggested exactly the opposite was true. In addition, the court stated that even if a dangerous condition existed, the cruise ship did not fail to warn the woman because Florida does not require any warning for an obvious hazard like a rug.

Tampa Court Dismisses Case Against Insurer’s Parent Company: Patoo Enterprises, Inc. v. Landmark American Ins. Co.

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

The United States District Court for the Middle District of Florida in Tampa has dismissed a lawsuit that was filed against the parent company of an insurer. In Patoo Enterprises, Inc. v. Landmark American Ins. Co., a licensed transportation broker purchased a commercial liability insurance policy from Landmark American Insurance. In addition to this general liability policy, the company also purchased an umbrella policy from Commerce and Industry Insurance Company. Commerce’s parent company is American International Group, Inc. (AIG). While both insurance policies were in effect, the transportation broker and its parent company were sued following a motor vehicle collision. In response to the lawsuit, the transportation companies filed a claim under both insurance policies. After the insurers denied both claims, the transportation companies filed a lawsuit against Landmark, Commerce, and AIG seeking a declaratory judgment in their favor. AIG then filed a motion to dismiss the lawsuit alleging the court lacked jurisdiction against the company and that the transportation companies failed to state a claim on which relief may be granted.

Initially, the federal court stated a motion to dismiss a lawsuit must be viewed in the most favorable light possible to the party who is opposing the motion. Because of this, the court said it is required to assume anything alleged in a complaint is true for purposes of a motion to dismiss for failure to state a claim on which relief may be granted. According to the court, dismissal is only appropriate where a plaintiff failed to allege sufficient facts to demonstrate the party is entitled to relief. Although an AIG employee denied the transportation companies’ claims under the umbrella policy on an AIG letterhead, AIG is a separate company from Commerce. Since AIG did not issue the umbrella policy, the company asserted it should not be required to defend itself despite that the transportation companies argued AIG was a proper party to the lawsuit.

Ultimately, the Middle District of Florida agreed with AIG. According to the court, only Commerce would be required to provide coverage if the transportation companies were entitled to relief under the umbrella policy. Because of this, AIG’s motion was granted and the case against the insurer was dismissed.

Florida Appeals Court Affirms Jury Decision in Wrongful Death Case Against Tobacco Companies: Philip Morris USA Inc. v. Buchanan

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

Florida’s First District Court of Appeals has affirmed a wrongful death judgment entered against two tobacco companies. In Philip Morris USA Inc. v. Buchanan, the personal representative of a deceased man sued both Philip Morris and the Liggett Group over her husband’s wrongful death. After jurors entered judgment against the defendant tobacco companies, the businesses appealed the decision to the First District Court of Appeal.

According to the tobacco companies, the lower court should not have limited their access to cross-examine the man’s wife regarding the brand of cigarettes he smoked at trial. Since the defendant tobacco companies stipulated that the decedent only infrequently smoked other brands of cigarettes, the appeals court found that the trial court appropriately exercised its discretion when it limited cross-examination regarding the matter. The court added that the decision to limit cross-examination related to the issue served to limit confusion. Additionally, since the tobacco companies were permitted to discuss inconsistencies between the woman’s sworn testimony and her other evidentiary statements, Florida’s First District held that cross-examination was not required for impeachment purposes.

Next, the appeals court addressed the defendants’ claim that a particular jury instruction was improperly denied. According to the tobacco companies, the trial court committed error when it refused to provide jurors with a proposed jury instruction on the statute of repose. After stating the proffered instruction for jurors was not an accurate statement of the law, the appellate court dismissed the defendants’ argument. Finally, the Florida court rejected the defendants’ assertion that Florida Supreme Court and other precedent barred the woman’s wrongful death claim and certified that its decision conflicted with an earlier decision entered by Florida’s Fourth District Court of Appeals. In June 2013, however, the Supreme Court of Florida agreed to review that appellate court decision.

Florida Federal Court Discusses Constructive Notice in Premises Liability Case: Feliciano v. Target Corp.

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

In Feliciano v. Target Corp., a woman was allegedly injured when she slipped and fell on a clear liquid while visiting an Estero department store. According to the woman, she failed to notice the notebook-sized pool of liquid on the floor because she was looking ahead, and it was obscured by her shopping cart. In addition, the woman claimed that there was no indication that anyone had noticed or stepped in the liquid prior to her fall. After the woman was injured, a store employee apparently took her statement regarding the incident and then cleaned up the spilled liquid.

About six months after her fall, the woman filed a premises liability lawsuit against the department store seeking damages for her purported injuries. In her complaint, she accused the store of maintaining the premises in a negligent manner and failing to warn her of the allegedly dangerous condition. The department store responded by filing a motion for summary judgment. A party that files such a motion is asking a court to rule in their favor because the undisputed facts of the case demonstrate that the party is entitled to judgment based on current law. According to the department store, the business was entitled to summary judgment because the woman offered no evidence to suggest store employees were aware of or should have known about the spill that caused her fall.

In order to prevail on a premises liability claim in Florida, a plaintiff must demonstrate that a property owner owed the plaintiff a duty to maintain a building, parking lot, or other location that an invitee may visit in a reasonably safe physical condition, the property owner breached that duty, and the property owner’s breach caused the plaintiff’s harm. A property owner is also required to warn invitees of any hazards the property owner knows about or should be aware of. Section 768.0755(1) of the Florida Statutes places the burden on a premises liability plaintiff to prove that a property owner had “actual or constructive knowledge of the dangerous condition” and failed to remedy it. Constructive knowledge may be demonstrated using circumstantial evidence that a property owner failed to inspect the premises for long periods of time. It may also arise when a particular dangerous condition happens with regularity. The mere presence of a spill on a floor in a business, however, is not sufficient to establish constructive knowledge.

Florida Appeals Court Refuses to Order Neurological Exam Absent Good Cause in Negligence Case: Gray v. Richbell

Published on: July 11, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In Gray v. Richbell, a woman was killed when her automobile was rear-ended by another car as she passed a tractor-trailer. The force of the impact apparently caused the woman to lose control of her vehicle and drive into oncoming traffic, where she collided head-on with a truck. Following the fatal motor vehicle accident, the woman’s parents filed a negligence lawsuit against the driver of the truck. According to the woman’s family, the driver negligently failed to avoid the deadly crash. In their complaint, the woman’s parents also claimed that the driver’s age and health contributed to the wreck.

During discovery, an accident reconstruction expert for the parents apparently determined the truck driver caused the fatal crash without actually viewing his medical records. Later, however, the woman’s family was provided with a copy of the driver’s medical records and the opportunity to depose his doctor. Next, the parents asked the trial court to compel the truck driver to submit to a neurological examination. The man objected by stating the woman’s parents failed to demonstrate good cause for the exam as required by the Florida Rules of Civil Procedure. About one week before trial, a judge held a hearing on the matter and ordered the driver to submit to the examination. Since the neurological examination order was issued only one week prior to trial, the truck driver asked Florida’s Fourth District Court of Appeals to review the case and filed a petition to overturn the trial court’s order.

The appeals court granted certiorari in the case because the discovery order was one that could cause “material injury” to the truck driver, and there would be “no adequate remedy on appeal.” The court then examined the requirements of Rule 1.360 of the Florida Rules of Civil Procedure. According to the Fourth District, the rule allows one party to request a medical examination of another only with good cause and where there is a controversy regarding the purported medical condition being examined. Next, the court stated the truck driver’s conduct was the only issue in the case and said the driver’s health was not material to the question of whether or not he committed a negligent act that ultimately led to the traffic collision. Since the woman’s parents failed to demonstrate good cause for their request, Florida’s Fourth District Court of Appeals granted the truck driver’s petition to prevent a court-ordered neurological examination of him.