South Florida Personal Injury Lawyers Blog

Fort Myers Federal Court Refuses to Remand Car Accident Case Back to Lee County

Published on: October 1, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In Jackson v. St. Jude Medical Neuromodulation Division, a man was injured in a rear-end collision while riding as a passenger in an automobile. About one year later, the man filed a lawsuit in Lee County, Florida seeking damages from both the driver and the owner of the vehicle that rear-ended him. The injured man later amended his complaint to release the named defendants and include the company that insured the allegedly at-fault driver at the time of the crash. In his lawsuit, the man accused the insurer of breach of contract over the company’s purported failure to make timely disability and medical payments related to his traffic wreck injuries.

Several months later, the man again amended his complaint to add a medical device manufacturer to the lawsuit. According to the man, the company manufactured two separate devices that malfunctioned before and after the automobile wreck. About six months later, the medical device manufacturer was served with notice of the case. In response, the company sought removal to federal court. Although both the medical device manufacturer and the automobile insurer consented to removal, the plaintiff claimed the federal court lacked subject matter jurisdiction. After the case was removed to the Middle District of Florida in Fort Myers, the injured man filed a motion for remand.

Orlando Court Refuses to Dismiss Couple’s Negligence Lawsuit Against Cruise Ship Owner

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

In Shore v. Magical Cruise Co., Ltd., a couple set sail on a themed cruise ship. While aboard the vessel, the wife apparently suffered a staphylococcal infection following a treatment in the ship’s spa. In addition, the husband allegedly became ill as well. After the couple returned from their cruise, they filed a negligence, strict liability, and loss of consortium lawsuit in the Middle District of Florida against the owner of the cruise ship and the operator of the spa where the wife was purportedly injured.

In response to the couple’s lawsuit, the defendants argued that the couple failed to plead sufficient facts to support a negligence lawsuit. Specifically, the defendants claimed the couple failed to allege they had a duty to warn the woman or that they breached their duty. Normally, in order to demonstrate negligence, a plaintiff must assert the at-fault party owed the plaintiff a duty, the at-fault party breached that duty, the plaintiff was injured as a result of that breach, and the plaintiff suffered damages. The federal court disagreed with the defendants and stated the allegations included in the couple’s complaint were sufficient to state a negligence claim.

Miami Federal Court Holds Statute of Limitations Expired in Defective Drug Lawsuit

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

In Plascencia v. GlaxoSmithKline, LLC, a Florida woman filed a products liability action against a drug manufacturer on behalf of her minor child and herself in 2012. According to the woman’s complaint, she ingested an anti-depressant medication that was manufactured by the drug company during the first six weeks of her pregnancy. As a result, the woman alleged her child was born in 1996 with numerous heart defects.

In December 1997, the woman’s primary care physician noted in her medical record that the child’s heart condition was “apparently due to” his mother’s use of the pharmaceutical medication. In 2005, the drug manufacturer notified the woman’s doctor and other physicians across the country that a recent study found the drug was associated with an increased likelihood for congenital conditions, including heart defects. A second letter sent by the drug company said another study found that women who ingested the medication during the first trimester of pregnancy increased their risk of delivering a child with a cardiovascular malformation.

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.”