South Florida Personal Injury Lawyers Blog

Limits on Expert Examination at Issue in Unique South Florida Auto Crash Case: Goicochea v. Lopez

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

In Goicochea v. Lopez, a South Florida woman sued several motorists for injuries she allegedly incurred during three separate motor vehicle collisions that took place between July 2007 and January 2009. According to the woman, the combined lawsuit was necessary because her injuries were so related that it was impossible to reliably apportion damages from each crash. A defendant driver from the second accident asked the purportedly injured woman to submit to examination by a particular doctor of his choosing, pursuant to Florida Rule of Civil Procedure 1.360(a)(1)(A). Later, defendants from the first automobile accident requested that the plaintiff submit to an exam performed by a different physician under the same rule. The woman instead sought a protective order that would limit the number of expert examinations she was required to submit to. After the trial court granted her motion, one of the defendants asked Florida’s Third District Court of Appeals to overturn the lower court’s decision.

According to the defendant, the trial court’s decision to limit expert testimony was erroneous and would subject him to harm that could not be repaired on appeal. The appellate court agreed and stated that, unlike the case law relied upon by the trial court, the defendant did not ask the plaintiff to submit to multiple expert examinations related to the same cause of action. Instead, three unrelated defendants with adverse interests were being sued at the same time. The court said the injured woman’s allegations forced each defendant to demonstrate his or her own purported negligence was not the source of the plaintiff’s harm. Florida’s Third District stated the trial court’s limit departed from the “essential requirements” of the law and caused each of the defendants irreparable harm. Because of this, the appeals court overturned the trial court’s ruling that the plaintiff was required to submit to examination by only one expert physician.

In the State of Florida, an individual who was hurt in a motor vehicle or other personal injury accident must prove the person or entity that caused his or her injury had a legal duty to exercise reasonable care, failed to do so, and their harm resulted from that failure. For example, a driver has a duty to obey traffic signs and laws. If a motorist speeds excessively and hurts a pedestrian, bicyclist, or another driver in a traffic wreck, he or she likely committed negligence. Depending upon the facts of each situation, proving negligence can be difficult, and establishing the proper evidence at trial is absolutely vital. A skilled South Florida personal injury attorney can help.

Florida Car Accident Case Analyzes Extended PIP Policy Limits: Spaid v. Integon Indemnity Corp.

Published on: June 23, 2014 | by Friedman Rodman Frank & Estrada, P.A.

A Florida appeals court has ordered an automobile insurer to pay all of a car accident victim’s medical expenses pursuant to the terms of the extended personal injury protection (PIP) provision included in her policy. In Spaid v. Integon Indemnity Corp., a woman asked her auto insurer to pay more than $10,000 in medical bills for the injuries she suffered in a 2011 motor vehicle wreck. Although asked to pay all of her medical expenses, the woman’s insurer refused to pay for any medical costs that exceeded her basic PIP policy’s $10,000 limit of liability. In response, the woman filed a lawsuit seeking a declaratory judgment against her automobile insurer.

In Florida, motorists are required to maintain $10,000 in PIP accident protection. This insurance allows a driver or other individual to collect up to $10,000 in immediate medical coverage, depending on the type and extent of car accident injury treatment, regardless of fault. Under current Florida law, an individual who was harmed in an automobile collision must seek medical treatment within 14 days of the crash in order to recover under a PIP policy. Typically, a PIP policy will pay for 80 percent of an accident victim’s medical bills up to the policy’s limit of liability. An optional extended PIP policy will normally increase that coverage to 100 percent of an insured’s medical expenses. The question in this case was whether or not the woman’s extended PIP policy incorporated her basic PIP policy’s $10,000 cap.

Before a trial court, the insured woman claimed that the entirety of her medical expenses should be paid because the plain language of her extended PIP policy included no limit of liability. Instead, the declarations page stated “100% Medical,” on the extended PIP line. In contrast, the automobile accident policy expressly limited basic PIP to $10,000 for each person. Because of this, the woman argued the limits of her policy’s extended PIP were ambiguous. The insurance company claimed the optional extended coverage did not change the overall PIP limit of liability. In the end, the trial court sided with the insurer and the woman appealed her case to Florida’s First District Court of Appeal.

$1.1 Million Jury Award in Florida Auto Accident Case Upheld: Zelaznik v. Isensee

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

The Second District Court of Appeal in Lakeland has affirmed a damages award in a Florida car accident case. In Zelaznik v. Isensee, a woman was injured when her vehicle was rear-ended in an automobile wreck. Prior to trial, the driver who struck the woman’s vehicle apparently admitted fault for the crash but claimed she was not responsible for the woman’s physical harm. Following trial, a jury awarded the injured woman more than $1.1 million in damages. The at-fault driver and her insurance company then appealed the jury’s verdict to Florida’s Second District.

On appeal, the defendants argued the damages award should be overturned as a result of three evidentiary rulings made by the trial court. The defendants claimed that the testimony of an expert witness and a police officer were improperly excluded and a video of the injured woman’s surgery should not have been published to the jury. According to the appeals court, any error committed by the trial court with regard to the excluded testimony was harmless as the jurors were provided with the evidence by other witnesses and there was no reason to believe the jury would likely have returned a different verdict if provided with the testimony.

The Court of Appeal also disagreed with the defendants’ argument that the video was gruesome and only offered to inflame the jury. The court said relevance is the test for whether or not photographic evidence should be submitted to jurors in a trial. Still, Florida law states evidence that may result in confusion, unfair prejudice, or that might otherwise mislead a jury is not admissible. Because the trial judge viewed the 15 minute video excerpt for appropriateness prior to allowing jurors to view it and the defendants offered no evidence that the video was gruesome, the appellate court held there was no abuse of discretion regarding admission of the evidence. Since the trial court did not abuse its discretion and any evidentiary errors were harmless, the Second District Court of Appeal affirmed the jury’s verdict.

Florida Appeals Court Examines Res Ipsa Loquitur Requirements in Personal Injury Case: MacClatchey v. HCA Health Services of Florida, Inc.

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

Florida’s Fourth District Court of Appeals has ruled that a personal injury case should be tried before a jury. In MacClatchey v. HCA Health Services of Florida, Inc., a woman was injured when a framed piece of artwork fell on her head while she was visiting her spouse in the hospital. According to the woman, a hospital worker cleaned up shattered glass from the picture’s frame and showed her broken hooks on which the artwork was previously hung. Following the incident, the woman filed a negligence claim against the hospital. In her lawsuit, the woman stated she was injured because the hospital failed to exercise reasonable care.

The hospital responded to the woman’s lawsuit by filing a motion for summary judgment. In a motion for summary judgment, a party to a lawsuit is asking the court to rule in his or her favor because there are no material facts in dispute and the undisputed facts of the case entitle that party to judgment in its favor. In the hospital’s motion, the company asserted that it did not know or have reason to know the piece of artwork posed a danger. Additionally, the hospital alleged that the negligence doctrine of res ipsa loquitur did not apply to the facts of the case because numerous third parties had access to the artwork. This doctrine infers negligence based upon a party’s resulting harm without requiring direct proof of negligent behavior where the cause of an injury is under the exclusive control of a defendant and the accident is one that normally would not take place but for an act of negligence. The trial court granted the hospital’s motion for summary judgment and the injured woman appealed her case to Florida’s Fourth District Court of Appeals.

On appeal, the court stated summary judgment was inappropriate in this case because there was a question of fact regarding whether the framed artwork was under the exclusive control of the hospital. The court also determined that several affidavits offered to the trial court showed the circumstances surrounding the purported failure of the picture hanging hooks were in dispute as well. Because the evidence could permit reasonable people to draw different conclusions, the appellate court reversed the trial court’s decision and stated the case should have been submitted to a jury.

Diversity Jurisdiction at Issue in Florida Premises Liability Case: Mortensen v. Omni Hotels Management Corp.

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

A federal district court in Florida has ordered that a man’s premises liability lawsuit be tried before a Nassau County court. In Mortensen v. Omni Hotels Management Corp., a man was allegedly injured when he slipped and fell while visiting a restaurant located inside of an Omni Hotel franchise. Prior to filing his case, the man offered to settle his claim against the hotel for $250,000. After the hotel refused the man’s settlement offer, he filed a premises liability lawsuit against the company in Nassau County, Florida. In his complaint, the man asked the court to award him “more than $15,000” in compensation for his medical care, pain and suffering, and a number of other supposedly continuing damages. The hotel removed the case to federal court based on diversity jurisdiction and the man promptly asked the federal court to remand the case back to state court.

In order to remove a lawsuit to federal court, 28 U.S.C. § 1332(a) states the parties must be citizens of different states and the amount in controversy must exceed $75,000. According to the Middle District of Florida, the injured man and the hotel chain agreed that they hailed from different states. The only question at issue in the case related to the amount in controversy. Since the hotel sought to remove the case to federal court and the injured man did not specify the amount of damages he sought, the federal court stated the burden of demonstrating the amount in controversy was more than $75,000 fell on the business. Additionally, the court said any doubts regarding proper federal jurisdiction should be decided in favor of remanding the case to state court.

Next, the Florida federal court examined the facts of the case. Although a settlement offer may provide evidence regarding the amount in controversy, the court stated the man’s request for $250,000 appeared to be simple settlement posturing when compared to his accrued medical expenses. The court also found that the man’s purported ongoing medical needs did not support a finding that the amount in controversy requirement was met. Likewise, the court stated that the fact that no stipulation existed regarding the amount of damages the man expected to recover did not suggest the amount in controversy exceeded $75,000. Finally, the federal court said although awards from similar cases can assist a court in determining the amount in controversy, none of the cases offered as supporting evidence by the hotel suggested the injured man would likely recover more than $75,000. Since the hotel did not offer sufficient evidence to suggest the amount in controversy supported federal jurisdiction, the court remanded the man’s premises liability lawsuit to state court.

Florida Appeals Court Clarifies Notice Requirements in Workers’ Compensation Case: Caceres v. Sedano’s Supermarkets

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

Florida’s First District Court of Appeals has overturned a judge’s denial of a repetitive use injury workers’ compensation claim. In Caceres v. Sedano’s Supermarkets, a grocery store employee filed a workers’ compensation claim for repetitive trauma injuries he allegedly sustained while on the job several years earlier. A Judge of Compensation Claims denied the man’s claim without considering the extent of his harm because the judge determined that the man filed his claim too late to recover. The worker then appealed his case to Florida’s First District.

According to the appeals court, Florida law requires that an injured worker inform his or her employer of a workplace injury within 30 days of the date of the injury or the initial manifestation of the harm. The Court of Appeals stated that this statutory period normally begins to run on the date of last exposure in cases of repetitive harm. Next, Florida’s First District found that the Judge of Compensation Claims misinterpreted the statute when he ruled that the supermarket worker filed his claim too late without considering any evidence related to the date, cause, or extent of the worker’s alleged harm. Instead, the judge apparently read Section 440.185(1) of the Florida Workers’ Compensation Statute too narrowly when he summarily denied the man’s request for benefits because more than 30 days had passed since the purported injury had occurred. Since there was insufficient information with which to examine whether the man’s workers’ compensation claim was filed in a timely manner, the appellate court reversed the judge’s order and remanded the case for further consideration.

In Florida, individuals who are hurt at work are generally entitled to collect workers’ compensation benefits. Employees who suffered harm while on the job may be entitled to collect lost wages, temporary and permanent disability benefits, and medical expenses. Certain relatives of someone who was killed in a tragic workplace accident may also be entitled to collect funeral costs and other compensation. In some cases, a person who was hurt at work may be entitled to file a personal injury lawsuit against a third party, such as a defective equipment manufacturer, who was somehow partially responsible for a worker’s injury. Regardless of the type of harm suffered, it is vital for an injured employee to file his or her workers’ compensation claim in a timely manner.

Florida’s Fifth District Court of Appeals Reverses Summary Judgment in Car Accident Case: Hubner v. Old Republic Insurance Co.

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

Florida’s Fifth District Court of Appeals has reversed a summary judgment order in a car accident case. In Hubner v. Old Republic Insurance Co., a volunteer for Boy Scouts of America repeatedly transported a potential Eagle Scout in his personal vehicle to a cemetery to participate in a clean-up event. Following the final stage of the clean-up event, the man apparently drove home to retrieve a camera in order to photograph the end result of the Boy Scout’s efforts. After the volunteer returned to the cemetery and took photos, he headed home. The volunteer made no stops on his way home from the cemetery. While en route, the man reportedly struck another vehicle head-on. Both the volunteer and the other motorist were allegedly severely harmed in the automobile accident.

At the time of the collision, the Boy Scouts of America maintained a liability insurance policy that covers the organization’s registered volunteers who are acting within the scope of their official duties. According to the insurance policy, such duties were defined quite broadly. The two men involved in the crash later filed a claim against the insurance company for damages related to their accident injuries. As part of a declaratory judgment action, the insurance company acknowledged that the man was a registered volunteer with the organization for approximately 55 years when the wreck happened but argued before a trial court that he was no longer acting within the scope of his duties as a volunteer when the injury accident occurred.

The insurance company next filed a motion for summary judgment. In order to prevail on a motion for summary judgment, a moving party like the insurance company is required to demonstrate that no material issue of fact exists and the party is entitled to judgment as a matter of law. The trial court granted the insurance company’s motion for summary judgment and the injured parties appealed the case to Florida’s Fifth District. Continue Reading ›

Panama City Federal Court Orders Department Store to Share Evidence in Slip and Fall Case: Sowell v. Target Corp.

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

A federal court in Florida has refused to allow a department store to claim surveillance video footage of an individual’s slip and fall while on company property was protected from disclosure by the work product privilege. In Sowell v. Target Corp., a woman was purportedly hurt when she fell inside of a chain department store. Following her injury accident, the woman filed a lawsuit against the business and sought a digital copy of the store’s video footage of the incident as part of a discovery request. According to the retailer, all video footage at the company’s chain of stores is erased in the ordinary course of business after a limited time period. Instead of erasing the video, the store saved a copy of the woman’s fall after she reported it. Because of this, the store alleged that the video was prepared in anticipation of litigation and should not be entered into evidence due to the work product privilege.

Although items prepared for litigation in Florida are normally protected under the work product doctrine, anything created in the ordinary course of business is ordinarily discoverable in a lawsuit. According to the Northern District of Florida, the store’s surveillance videotape was not only responsive to the woman’s discovery request, it was created as a part of the chain’s routine business practice of monitoring employees and customers for theft and other potential issues.

Additionally, the court held that the business failed to demonstrate the video was created for any other reason or offer a valid justification for withholding it. Finally, the Florida federal court stated a delay in producing the video might place the injured woman at a disadvantage if store employees were deposed after reviewing the slip and fall tape. Since the department store’s video evidence of the woman’s injury accident was not privileged and withholding surveillance footage of the incident from her might place the woman at a disadvantage at trial, the Northern District of Florida ordered the business to share the film. Continue Reading ›

Is There a Non-delegable Duty to Supervise Florida Hospital Doctors?

Published on: May 27, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a 2012 case, a plaintiff appealed a final judgment that entered a defense verdict for a hospital in her wrongful death case. The case arose when her husband went in for back surgery and died the next day from cardiac arrhythmia. After that, the plaintiff sued the hospital for its own negligence and the negligence of its employees.

The plaintiff named an ER physician as a negligent agent for whose actions the hospital was liable. The plaintiff claimed the hospital was vicariously liable under the respondeat superior doctrine. This doctrine permits a company to be held responsible for its employees that act in the course and scope of employment on the employer’s behalf. The plaintiff also alleged the hospital was responsible for the physician’s conduct because there it had a nondelegable duty to supervise him.

The plaintiff’s expert witness testified in deposition that the doctor had violated is duty by delaying in his response to an emergency situation. The hospital filed a motion for partial summary judgment. It argued that the ER doctor was an independent contractor and therefore it wasn’t liable for him. The trial court granted the partial summary judgment, ruling the doctor did not serve as an actual agent of the hospital. The trial court concluded there was no non-delegable duty to supervise. Continue Reading ›

Establishing Constructive Knowledge in Florida

Published on: May 23, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case, a man appealed a grant of summary judgment as to one of the causes of action in his slip and fall case. The case arose at a country club where the man was an invitee. There was a slippery substance on the dance floor and the man slipped on it. The club had allowed patrons to take drinks onto the dance floor.

The man filed suit alleging that the club had created the dangerous condition, or it knew or should have known of the condition because it was there long enough that it should have been discovered. He alleged that he experienced bodily and other injuries as a direct and proximate result of the club’s negligence.

The club answered and later filed for summary judgment. It argued that the plaintiff had to establish the club’s knowledge of the dangerous condition under Florida Statutes (2010) section 768.0755. It also argued that even though constructive knowledge could be established by showing the condition existed for so long the defendant should have known of the condition by exercising ordinary care, the plaintiff offered no evidence about how long the substance had been on the floor. Continue Reading ›