South Florida Personal Injury Lawyers Blog

Written Interrogatories in Florida Slip and Fall Cases

Published on: April 3, 2014 | by Friedman Rodman Frank & Estrada, P.A.

An important aspect of the discovery process during litigation is the preparation of responses to interrogatories. A common practice among plaintiffs’ lawyers is to ask their clients to prepare handwritten responses to the defendant’s discovery. These responses are solely for the attorney’s benefit. Certain interrogatories may ask for an opinion or contention not within the personal knowledge of the plaintiff, though it is within the knowledge of the attorney. Therefore a written interrogatory response may differ from a draft response prepared by a plaintiff for her attorney.

In a recent appellate decision on a discovery battle, a plaintiff sought review of a court order compelling her to produce privileged attorney-client communications. The case arose because the woman filed suit against a supermarket alleging that she had suffered personal injuries after a slip and fall in a large puddle at the store.

The market had served a set of written interrogatories on the plaintiff during the discovery process. The plaintiff had answered them and verified them as true and correct to the best of her knowledge. One of the interrogatories asked her to provide the facts that formed the basis for her allegation that the defendant market knew of the dangerous condition.

Unconscionable Arbitration Agreements for Florida Nursing Homes

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

In a recent case, a healthcare and rehabilitation center appealed a trial court’s order denying its motion to dismiss and compel arbitration. The case arose out of a case in which a wife admitted her husband to the rehabilitation center’s nursing facility in accord with a durable power of attorney he had signed. He lived there for two years. Days after he was discharged, the husband died.

The wife sued as personal representative of his state for violating his nursing home residents’ rights, negligence and wrongful death. The nursing facility moved to compel arbitration. The wife had signed an arbitration agreement when her husband was admitted. Signing the arbitration agreement was a condition of being admitted into the nursing home.

The trial court, however, denied the nursing facility’s motion to compel arbitration. It found that the durable power of attorney did not give the wife authority to sign the arbitration agreement on behalf of her husband. It also found the agreement was substantively unconscionable because the estate didn’t have the ability to pay arbitration costs, and that is was procedurally unconscionable in the way the agreement was presented to the wife.

Uninsured Motorist Coverage in Florida

Published on: March 24, 2014 | by Friedman Rodman Frank & Estrada, P.A.

Under section 627.727(1) of the Florida Statutes (2007), car insurers must offer uninsured motorist coverage unless an insured expressly rejects coverage. This includes coverage for an underinsured motor vehicle. This coverage is intended to protect those that are legally entitled to recover damages for injuries caused by uninsured or underinsured motorists.

In a recent case, the Florida Supreme Court weighed in on the question of whether an insured person forfeits benefits without regard to prejudice under an uninsured motorist insurance contract if he breaches a compulsory medical examination provision. It also answered the secondary question of who has the burden of pleading and proving prejudice.

The case arose out of a 2006 traffic accident involving Robin Curran and an underinsured motorist. Curran and the motorist settled their case and the settlement was approved by Curran’s insurer State Farm. Curran asked State Farm for her $100,000 underinsured motorist policy limits and offered to settle with State Farm if it tendered the policy limits by a specific date. The plaintiff noted her damages were actually about $3.5 million because she had reflex sympathetic dystrophy syndrome. State Farm tried to schedule a compulsory medical exam based on a provision of the policy requiring it.

Indemnification Agreements in Florida Personal Injury

Published on: March 20, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case, a hotel appealed after the court entered summary judgment in favor of Lufthansa on its cross-claim for indemnification. Lufthansa is a German airline that brings travelers to Miami among other locations. Lufthansa had drafted and contracted with the hotel in 2003 so that the hotel would provide lodging for the airline’s flight attendants on overnight layovers.

In 2008, flight attendant Juergen Wauschke was staying at the hotel because of the agreement. When he tried to open his 7th floor hotel room window, the window fell out of its frame and struck another hotel guest Jaime Young who was sitting below his bedroom.

Young sued the hotel for vicarious negligence and added Lufthansa and the engineering firm responsible for design and maintenance. The claim against Lufthansa was based on the theory that Lufthansa had vicarious liability for its employee Wauschke’s negligence.
Lufthansa requested indemnification from the hotel based on the written agreement. The indemnification clause of the written agreement stated that the hotel would indemnify and hold Lufthansa harmless from liabilities including injury and death that arose from the hotel’s negligence or willful misconduct.

Victory for Medical Malpractice Wrongful Death Claimants

Published on: March 17, 2014 | by Friedman Rodman Frank & Estrada, P.A.

Recently, the Florida Supreme Court issued a major decision regarding statutory caps on non-economic damages in medical malpractice cases. The case arose when a 20-year-old pregnant woman, the dependent of someone in the Air Force, was admitted to a government medical center with severe preeclampsia. The doctors induced labor and she delivered her child vaginally. However, she lost a lot of blood and didn’t deliver the placenta. She went into shock and cardiac arrest, lost consciousness and died.

Through her estate, her parents and her baby’s father sued for wrongful death and medical malpractice against the United States in the United States District Court for the Northern District of Florida. At a bench trial, the court determined that their economic damages were $980,462.30. Their noneconomic damages (items such as pain and suffering) were $2 million. The district court relying upon section 766.118(2), which covers wrongful death noneconomic damages, capped the damages at $1 million.

The plaintiffs appealed to the Eleventh Circuit Court of Appeals, which affirmed the application of the cap. The appellate court ruled there was no controlling precedent and therefore certified four questions of law for the Florida Supreme Court to answer. These questions included whether the cap violated due process under the Florida Constitution, whether it violated the right of access to the courts, whether it violated the right to trial by jury, and whether it violated separation of powers.

Maintenance and Cure on Florida Cruise Ships

Published on: March 13, 2014 | by Friedman Rodman Frank & Estrada, P.A.

General maritime law provides that a seaman can recover compensation for food, lodging and medical services that arise when injured or taken ill while working on a ship. These forms of compensation must continue through recuperation until the seaman achieves maximum medical recovery. “Maintenance and cure” under general maritime law is separate from remedies under the Jones Act.

If you are a seaman who is hurt while employed on a cruise ship because of an employer or coworker’s negligence, the Jones Act allows you to seek damages (such as lost wages or pain and suffering), separate from maintenance and cure. Because of its proximity to the water, Florida sees many cases related to seaman injuries and illnesses. These cases may raise issues under both general maritime law and the Jones Act.

In a 2012 case a professional musician appealed after the trial court granted summary judgment in favor of a Disney Cruise Lines in his complaint for unseaworthiness, negligence, Jones Act, maintenance and cure. The musician had suffered an injury while on board a Disney cruise ship. He received medical care from a specialist in the Caribbean and then went on medical disembark. An orthopedic surgeon treated him and performed two surgeries on his shoulder, rotator cuff and elbow.

One-time Change of Physician Rule in Florida

Published on: March 10, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In Florida, you do not have the right to pick your doctor if you file a workers’ compensation claim. Most of the time the insurance carrier picks the doctor. Florida Statutes Section 440.13(2)(f) gives a worker the opportunity to change a physician once during the course of treatment for a work-related injury.

Once the change is granted and the employer or carrier notifies him or her, the original physician loses authority. The carrier must then authorize an alternative physician not professionally affiliated with the earlier physician within 5 calendar days after receiving the worker’s request. The worker can select the physician if the carrier doesn’t provide the name of the new physician.

Usually attorneys do not recommend that an injured worker change doctors during the early, occupational clinic stage. If you choose to change doctors at that time, you cannot again change doctors at the more important specialist stage. The second physician after your one-time change stays the doctor on the case unless the claimant moves or the initial treating physician no longer takes workers’ compensation cases or withdraws from the case for another reason.

Retroactive Application of a Statute in Florida Slip and Fall

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

A recent case arose from a slip and fall that happened in a mall in 2008. The plaintiff had gone to the mall to buy clothes. The owner of the mall had contracted with a company to clean the mall. The plaintiff slipped on clear slippery material on the floor. She suffered injuries and had to seek medical treatment.

In 2010, she sued the owner of the mall and the cleaning company for negligence. She alleged they should have warned her, should not have let the spill remain on the ground and should have had a clean up plan to make sure spills didn’t stay on the floor. Before trial, the defendants moved for a ruling that section 768.0755, Florida Statutes (2010), applied retroactively and would control the trial. The court denied the motion, and decided that the 2008 version of the statute would be operative.

During the trial’s voir dire, the trial court asked prospective jurors who had participated in a trial or had a family member who had been involved in a trial, other than a divorce. Four jurors answered that they hadn’t been involved in a trial previously. After the plaintiff’s presentation, the defendant moved for a directed verdict. They argued that the motion for directed verdict should have been granted because the plaintiff failed to show their actual or constructive knowledge of the spill or even that they’d breached the standard of care under 768.0710 or 768.0755.

Confidential Settlements in Florida

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

Recently, a Florida plaintiff’s daughter posted a status update on her father’s settlement. It proved to be a terrible error in judgment. The father had been a headmaster whose contract was not renewed. He sued his former employer in federal court and won an $80,000 settlement. The agreement included a confidentiality clause. It prohibited both the plaintiff and the school from talking about the case.

His daughter, however, bragged about the settlement on Facebook to 1200 friends, noting it would pay for her vacation to Europe and telling the school to “suck it.” A number of the friends were former classmates at the prep school, which she had attended. When the school’s lawyers found out, they stated they wouldn’t pay. The plaintiff filed a motion to enforcement the settlement. In his view, his daughter was retaliated against and was a part of what was happening. She had known about the mediation and he felt he had to share what had happened with her. He won the motion to enforce in Circuit Court, but the school appealed.

The Third District Court of Appeal for the state of Florida found for the school and reversed the Circuit Court, throwing out the $80,000 settlement. The court explained that the daughter had done exactly what the agreement was supposed to prevent.

Doctors’ Duty to Prevent Suicide in Florida

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

In a recent case, a Florida appellate court considered whether a medical malpractice case was appropriate in the case of a suicide where the woman was being treated for depression. The woman’s husband brought the lawsuit.

The woman had a history of depression and was taking Prozac before she was switched to Effexor. The doctor was not aware that the woman had stopped taking the Effexor because of its side effects. She had called her doctor and spoken to his assistant in 2008. She told the assistant she didn’t feel right, wasn’t sleeping well, and was experiencing gastrointestinal distress. She thought it was the Effexor. The assistant wrote this information down in a note to the doctor.

When the doctor saw the note soon after, he decided to change the medication to Lexapro and referred her to a gastroenterologist. The office didn’t ask her to schedule an appointment. The woman picked up samples and a prescription on the same day. The next day she hung herself, leaving no suicide note.