Florida Injury Lawyer Blog

Insurer Liable for $200k Medical Bill After Drunk Driving Crash

January 26, 2018 | Associates and Bruce L. Scheiner

A life insurance company has been ordered by the U.S. Court of Appeals for the Sixth Circuit to pay a $200,000 medical bill for an insured who reportedly crashed his dirt bike while under the influence of alcohol.

The life insurance carrier outright denied claimant’s bid for benefits, citing policy exclusion for injuries that arise from the “illegal use of alcohol.” However, the district court ruled – and the appellate court affirmed – this provision, when read and interpreted according to its ordinary meaning, refers to things like drinking alcohol while under the age of 21 or imbibing against a court order. It is inherently different, the court ruled, than engaging in illegal conduct after one has legally consumed the alcohol. That would mean actions like drunk driving would still be covered; it’s not the drinking that was against the law, it was the actions one took after drinking – something not specifically excluded in the policy language.

This case is interesting for a few reasons. The first is that it is not your typical car accident lawsuit in that it involves dirt bikes and it happened off-road. Secondly, this was not a plaintiff claiming injury as a result of someone else’s negligence. He conceded his own misconduct caused his injuries. Nonetheless, he argued his life insurance company should be responsible to cover his damages.

According to court records, plaintiff was 22-years-old – of the legal drinking age – five years ago when he and his friend drank alcohol and then proceeded to ride their dirt bikes in a field near their home. While engaging in this, the two crashed. Plaintiff suffered serious injuries. It was ascertained that his blood-alcohol level shortly after the crash was almost nearly twice the legal limit for use of an off-road vehicle in that state. Continue reading ›

Slip-and-Fall and the “Continuing Storm Doctrine”

January 24, 2018 | Associates and Bruce L. Scheiner

National Weather Service records indicate it has never snowed in Naples or Fort Myers, even as overnight temperatures have dipped into the freezing territory in recent weeks. Our northern neighbors – even those just in the northern part of the state – have been dealing with frozen precipitation. This buildup of snow and ice has the potential to generate numerous hazards, including those entering and exiting businesses. In many states where this is a regular hazard, the courts follow something called the “continuing storm doctrine.” This means that business owners have no duty to customers to remove snow and ice from sidewalks when a continuing storm does not allow the owner a reasonable opportunity to remedy the issue.

This type of case is known as a “premises liability” cause of action, more commonly known as a slip-and-fall. Premises liability claims in Florida are heavily dependent on the legal status of the visitor (which dictates the duty of care they are owed). For instance, those who are on site for the financial benefit of the property owner are owed the highest duty of care.

F.S. 768.0755 indicates that when plaintiffs are injured in Florida slip-and-fall accidents caused by transitory foreign substances on a walking surface, plaintiffs must prove defendant had actual or constructive knowledge of the hazardous condition and failed to address it. Constructive knowledge is proven via circumstantial evidence that shows:

Condition existed for such a length of time that the business would have or should have discovered it in the exercise of ordinary care;
Condition occurred with such regularity it was foreseeable.

Settlement Release Not Necessarily the End of Injury Lawsuit

January 21, 2018 | Associates and Bruce L. Scheiner

It’s generally advisable for car accident victims to avoid accepting an early settlement offer from the at-fault plaintiff’s insurer, particularly before it is reviewed by an experienced injury attorney. The reason is by so doing, you may be required to sign a release through which you agree not to pursue any further claim of damages – no matter how much greater your damages are compared to what you agreed to accept initially.

Recently, the South Dakota Supreme Court reversed a summary judgment in favor of a defendant who sought enforcement of a release of liability from all claims with a settlement of $3,000. Problem was, plaintiff’s actual medical bills along amounted to $400,000. Although the trial court granted summary judgment on the basis of that early settlement release form, the state supreme court found there were genuine issues of material fact as to whether consent was obtained with undue influence and also whether the release actually precluded plaintiff’s claim. Plaintiff hasn’t exactly won the case, but she will get a shot at taking the matter to trial.

According to court records, the 55-year-old plaintiff was a passenger in her boyfriend’s vehicle when the vehicle was rear-ended by defendant motorist. Law enforcement cited plaintiff’s boyfriend, indicating he committed unsafe lane use for using a through-traffic lane rather than the left turn lane to turn left. However, they also cited defendant for careless driving (driving too closely). Defendant later pleaded guilty in traffic court to that charge. Continue reading ›

Proving Nature and Extent of Injury in Florida Car Accidents

January 18, 2018 | Associates and Bruce L. Scheiner

Part of securing damages for your car accident injuries means not only proving the defendant motorist was at-fault in the crash, but also showing that the causal nature and extent of your injuries. Some Florida car accident trials center solely around these facts, with defendants arguing you weren’t as seriously injured as you allege or that the injuries you attribute to the crash were caused by something else.

Proving negligence means showing:

Defendant owed plaintiff a duty of care (in these cases, that driver had a responsibility to drive with reasonable care);
Defendant breached that duty;
Breach caused plaintiff’s injuries.

A recent case out of Nebraska shows how critical that causal element is in securing financial compensation. Continue reading ›

Product Liability Lawsuit Ends With Endorsement of Innovator Liability Against Brand Name Drug Makers

January 15, 2018 | Associates and Bruce L. Scheiner

The state supreme court in California has ruled that makers of brand name medications first of all owe a duty of reasonable care to make sure product labels have adequate warnings (regardless of whether the end user is exposed to the brand name drug or the generic version) and also that liability for failure to warn could be found even if the product maker stopped making the drug and no longer owns it.

That ruling, which relied on a previous decision by a federal appellate court, could have big implications for product liability litigation in California. Although it doesn’t directly impact Florida cases, it’s common for state supreme courts to rely on their sister courts’ reasoning when faced with similar dilemmas. The decision is likely to open the doors to more product liability lawsuits against brand name drug manufacturers.

The case involves a woman who was prescribed a generic version of the brand name drug Brethine, which is prescribed to curtail premature labor. She was pregnant with twins at the time. The drug was originally an asthma medication, but was given for the off-label use of halting or slowing the potential for preterm labor. Both boys were born seemingly fine, but were diagnosed with developmental delays at age 3. By age 5, they were diagnosed with autism. A lawsuit filed on their behalf against the brand name drug manufacturer, Novartis, alleged the company was aware or should have known about the drug’s potential risk of adverse effects to fetal brain development. Continue reading ›

Jury Awards $5.2 Million to Worker Fired for Reporting Nursing Home Abuse

January 12, 2018 | Associates and Bruce L. Scheiner

A nurse was reportedly fired from her nursing home position after she reported alleged abuse of residents to authorities and now, a jury has awarded her $5.2 million for wrongful termination.

Although this is technically an employment law case, it highlights the atmosphere that allows abusive, neglectful and negligent actions to persist in a nursing home setting. As our nursing home abuse attorneys know, employment actions pertaining to a nursing home can shed a lot of light into the kind of workplace it was, and therefore the type of care facility it was.

As the National Center on Elder Abuse reports, the prevalence of elder abuse today is roughly 10 percent of all seniors, who suffer physical abuse, psychological and verbal abuse, sexual abuse, financial exploitation and neglect. One ground-breaking study in New York revealed that some 260,000 elder adults in that state (or about 1 in 13) suffered some type of abuse in the previous 12 months. Data from Adult Protective Services at the state level indicate these are increasing trends, and are likely to continue on this trajectory as the population ages without adequate care facilities to meet their needs.

Potential risk factors for nursing home abuse in Florida include:

Dementia;
Experience of previous traumatic events (i.e., domestic and interpersonal violence);
Being female;
Low income/ poverty;
No spouse/ partner.

Lawmakers Ax Plan Allowing Self-Driving Carmakers to Skirt Liability for Crashes for Failed Maintenance

January 9, 2018 | Associates and Bruce L. Scheiner

Self-driving cars, while not yet fully autonomous, provide motorists with the opportunity to cede some of the control behind the wheel. There is much evidence that this is a whole lot safer, as driver error is the primary cause of auto accidents in Florida. However, it has also meant the question of liability has become a vexing one. If a crash happens, who was in control – the driver or the auto manufacturer?

Recently in California, the state Department of Motor Vehicles announced it would not adopt a rule (recommended by General Motors) that would allow manufacturers of automobiles to evade liability for car accidents wherein the self-driving vehicle hasn’t been maintained to the letter of the manufacturer’s specifications. Advocacy group Consumer Watchdog calls the decision a “major victory for consumers,” according to the Associated Press. The rules, as proposed by the automaking industry, would have effectively absolved producers of these vehicles of product liability for things like the owner’s failure to properly clean the vehicle sensors or having a tire that was slightly under-inflated or not precisely meeting oil change recommendations.

Although it is true that vehicle owners have a responsibility to adequately maintain their vehicles (or face potential liability when failure to do so results in an injurious crash), these kinds of stringent maintenance requirements don’t exist for the standard human-driven vehicle. Continue reading ›

$4.75M Settlement for City Garbage Truck Accident Injuries

January 7, 2018 | Associates and Bruce L. Scheiner

An Illinois city recently agreed to a $4.75 million settlement to a woman in a sport utility vehicle who was struck by an on-duty city worker driving a garbage truck. It was reported the garbage truck driver was traveling eastbound, crossed over the double yellow lines on the road and side-swiped victim’s vehicle, which was traveling westbound. She spun and was struck by another vehicle.

The 33-year-old victim explained to The Chicago Tribune that her left leg was broken and she remains unable to move her left hand. Her attorneys explained in her personal injury lawsuit that she had suffered serious and permanent injuries that will not only cost her dearly for medical expenses, but also have rendered her unable to carry out certain functions of daily living, such as returning to her job as a home care worker and cashier.

Accidents involving garbage trucks are sometimes described in media reports as being “freak” occurrences. The reality is, they are more common than one might think. One study reported by the New York Daily News revealed that over a three-year stretch, garbage trucks killed an average of 24 pedestrians per 100 million miles driven. Compare that to taxis, which were involved in 6 fatal accidents per 100 million miles driven. Researchers cited potential design flaws in trucks that may make it difficult for garbage truck drivers to see. Continue reading ›

Wrongful Death Lawsuit Thwarted by Untimely Filing

January 5, 2018 | Associates and Bruce L. Scheiner

Florida wrongful death lawsuits can be tricky matters when it comes to who has the right to sue. One can pursue a claim as a representative of decedent’s estate or they can pursue action as a survivor of decedent. Claims by survivors may result in higher damage awards, depending on the circumstances, because there are different types of damages one can assert. Those with a right to claim damages as a survivor generally include (in descending order) the decedent’s:

Spouse;
Children (particularly those under 25);
Parents;
Siblings or other blood/ adoptive relatives who were at least partially dependent on decedent for support or services.

Still, it is incumbent on those who have the right to pursue such a claim to do so in a timely manner. For example, a spouse may have statutory priority over a decedent’s parents in a wrongful death claim, but unless the spouse actually files the claim within the wrongful death statute of limitations (2 years in Florida), they may not be able to successfully challenge a prior claim, settlement or verdict.

Such was the case in a matter recently before the Tennessee Supreme Court. According to court records, the mother of an unmarried man who died in handcuffs while in the custody of a retail store was able to secure a wrongful death lawsuit settlement in 2010, claiming to be the sole heir of the decedent. However, 20 months after the case was dismissed in lieu of that settlement, a woman who reportedly gave birth to decedent’s child filed a motion to set that order aside and substitute her (as her child’s representative) as the real party in interest, allowing the claim to relate back to the original filing. Continue reading ›

Wrong-Way Crash Victim Awarded $4.7M in Damages in South Florida Trial

January 2, 2018 | Associates and Bruce L. Scheiner

Although the majority of car accident lawsuits in Florida are either settled or dismissed prior to trial, it’s important to work with an attorney you know will be prepared for the possibility of a trial. In the event that settlement negotiations break down and defendants are unwilling to extend a fair agreement to our clients, our Fort Myers trial lawyers are willing to do exactly that, and have a long history of success in such matters. It’s important that when you’re looking for a car accident attorney in Lee County that you ask about their trial experience, even if it seems unlikely the case will proceed to that point. This is especially important in cases involving serious injury or death.

Recently in Miami, a wrong-way crash victim was awarded $4.7 million by jurors in a car accident lawsuit that advanced to trial.

The Daily Business Review reports the head-on collision occurred in 2012 on Interstate 95. Although fault in a case like this may seem relatively easy to prove, this case was made even more challenging by the fact plaintiff was adamant about not testifying in front of the jury. In fact, she didn’t even want to enter the courtroom during the proceedings, citing the immense trauma she suffered after the crash. Just 20-years-old at the time of the crash, plaintiff had been a passenger in her friend’s vehicle when they were struck in Broward County around 3 a.m. by the wrong-way car. Continue reading ›