South Florida Personal Injury Lawyers Blog

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.

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.