Florida Injury Lawyer Blog

Samson v. Nahulu – Pedestrian Injury Case to be Retried

January 10, 2016 | Associates and Bruce L. Scheiner

The case of a teen pedestrian who suffered serious injury as a result of being struck by a vehicle will be retried after the Hawaii Supreme Court ruled instructions to the jury prior to the verdict were both erroneous and prejudicial.

The case of Samson v. Nahulu was complex for the fact that it contained a host of witness descriptions of the incident, and several of those were conflicting. That meant there were many different issues of material fact for the jury to weigh. Juror instructions are critical in any injury lawsuit, and mistakes could open the door for a successful appeal – no matter which side prevails at trial.

Both plaintiffs and defendants have the opportunity to propose jury instructions on various issues of law as they pertain to the case, through it’s ultimately up to the judge whether to approve or reject submissions. Continue reading ›

Hampton v. County of San Diego – Overcoming Design Immunity in Accident Lawsuits

January 8, 2016 | Associates and Bruce L. Scheiner

Collecting compensation for injuries sustained due to faulty highway design or construction is difficult in Florida, and it was made tougher by a law passed in 2005, codified in F.S. 337.195, limits on liability.

The statute serves to limit liability for road designers, consultants and contractors and it does so by establishing legal presumptions in their favor in civil litigation. In order to win (and it is possible to prevail), plaintiffs have a tough task of overcoming those strong presumptions in favor of defendants. Generally, it means asserting gross negligence or intentional misconduct that results in injuries or damages. It can also be circumvented when contractors fail to adhere to maintenance of traffic safety plans, as required by the government contract.

Similarly, government entities are protected by sovereign immunity laws, though those have been waived under certain circumstances. Continue reading ›

Serra v. Estate of Broughton – Exchange Student to Receive UM/ UIM Benefits of Host Family

January 6, 2016 | Associates and Bruce L. Scheiner

A foreign exchange student from Spain, seriously injured in a crash while riding in a friend’s car, was insured by her host family’s uninsured/ underinsured motorist benefits, the Oklahoma Supreme Court ruled.

In a case that could serve as a guide in other jurisdictions, justices reviewing the facts of Serra v. Estate of Broughton sought to clarify whether the term “ward” in the auto insurance policy should be defined as a court-ordered arrangement or as its ordinary meaning. The court chose the latter, thereby extending benefits to the injured teen.

Although every auto insurance policy may vary, most contain provisions that extend coverage to resident relatives, frequent drivers and, in some cases, “wards.” In this case, the term “ward” wasn’t defined in the policy, but the trial court decided it should be defined as it had been statutorily. That meant applying a statutory definition in which the individual had a formally-appointed guardian or conservator over his or her person or property. On appeal, plaintiff argued that “ward” should be defined as an ordinary term because the policy lacked a definition and thus was ambiguous in this regard. When insurance policies are ambiguous, courts have generally held disputes should be determined in favor of the insured. Continue reading ›

South Florida Judge Rejects Waiver as Absolution Argument by Crash Defendants

December 28, 2015 | Associates and Bruce L. Scheiner

Citing the 2015 Florida Supreme Court decision in Sanislo v. Give Kids the World, Inc., defendants in a fatal van accident lawsuit argued before Collier Circuit Judge Hugh Hayes that a liability waiver meant they weren’t liable for a 17-year-old’s death in December 2011. Hayes, though, wasn’t buying it. In rejecting a defense motion for summary judgment, Hayes determined the four-sentence waiver on its own wasn’t enough to free the company from responsibility in this wrongful death case, particularly when the alleged negligence was so egregious.

Decedent was one of eight youths in a van driven by an employee of a work camp contractor with the Department of Juvenile Justice. Plaintiffs say the 17-year-old was working to turn his life around. He and the other teens were returning from an athletic trip in Daytona Beach – one they had earned with good behavior.

The driver, a 25-year-old employee with a poor driving record who in fact should not have been working for the contractor, was talking on his cell phone when he lost control of the vehicle at a 90-degree curve on a dirt road. After sliding into a traffic sign, the van overturned and flipped into a canal. Seven of the teens got out. One 16-year-old survivor said as he pushed his way out of the van, he felt a tug on his leg. He thrust his hand into the cold water, trying to reach the other passenger, to help pull him up. But their hands slipped.

“And I knew right then, it was (him),” the survivor told The Naples Daily News. Continue reading ›

Avoidable Medical Complications Prompt Millions in Penalties Against Lee Memorial

December 27, 2015 | Associates and Bruce L. Scheiner

The Fort Myers News-Press reports that Medicare is penalizing Lee Memorial Health System millions of dollars over the next 12 months because the hospital’s rate of avoidable patient infections and other preventable issues is too high.

The hospital system will not receive $2.4 million in Medicare payments in 2016 as a result of hospital-acquired infections, which include bloodstream infections, and also for problems with bedsores and falls.

According to Kaiser Health News, hospitals in Lee Memorial were among 721 punished by the federal government for high rates of patient injuries and infections. Some cases involved the most renowned hospitals in the country, including the Cleveland Clinic, the Hospital of the University of Pennsylvania in Philadelphia and the Brigham and Women’s Hospital in Boston. In fact, 1 in every 7 hospitals nationally will have their Medicare payments reduced by 1 percent over the course of the 2016 fiscal year, which began in October. In total, 31 hospitals in Florida faced similar penalties. Continue reading ›

Florida Lawmakers Propose Tougher Texting-While-Driving Law

December 26, 2015 | Associates and Bruce L. Scheiner

Everyone knows a texting driver is a dangerous driver. But the consequences for doing so – particularly in Florida – are weak in comparison to the penalty paid by victims. That’s why it keeps happening, and why the number of crashes nationally attributed to texting drivers is now at 340,000, according to the National Safety Council.

In an effort to combat this problem, a group of Florida lawmakers have reintroduced a measure that would empower local law enforcement to make enforcement a greater priority throughout the state. As it now stands, F.S. 316.305, known more broadly as the “Florida Ban on Texting While Driving Law,” stipulates that the violation is a secondary offense. What that means is a law enforcement officer isn’t allowed to stop a driver solely for breaking the texting law. There has to be some other valid reason for the stop, and only then can an officer issue a citation for texting-while-driving.

House Bill 537, introduced by W. Keith Perry (R), would revise this statute to make the violation a primary offense, meaning officers can stop drivers and issue citations for texting. If it passes the legislature, the measure would become effective Oct. 1, 2016 – exactly three years after the initial ban went into effect. Continue reading ›

$1.45 Million Settlement For Lacking Barriers in Fatal Crash; $9.5 Million Lawsuit Still Pending

December 20, 2015 | Associates and Bruce L. Scheiner

A commissioner for the City of Portland, Ore. has received an agreement to settle one of the pending wrongful death actions for the loss of her husband for $1.45 million. The settlement was reached with the Oregon Department Transportation following a head-on collision in September 2014 on a stretch of interstate with no cable median barriers. Another $750,000 was paid by the state to the family of the front seat passenger, who also died.

Another $9.5 million lawsuit against two other drivers is still pending.

Additionally, decedent’s widow pushed hard for legislative action that would specifically require the Department of Transportation to finish erecting median barriers on 100 miles of unprotected highway identified as prone to deadly cross-over crashes, such as the one that killed decedent. Senate Bill 921, known as the “Fritz-Fairchild Act,” was passed by both legislative bodies, signed by the governor and codified in Chapter 275 of the state’s 2015 laws. It becomes effective Jan. 1, 2016. The measure will specifically target a dangerous, unbarricaded stretch of interstate that has been neglected for years as political priorities shifted. This was despite the DOT being aware of the need for updates as far back as 1996.

These new changes will cost an additional $20 million. Continue reading ›

Metro. Prop. & Cas. Ins. Co. v. Estate of Benson – Homeowners’ Insurance and Intentional Acts of Harm

December 17, 2015 | Associates and Bruce L. Scheiner

Homeowners’ insurance is intended to provide compensation to those injured by members of the household. Usually, this coverage extends to incidents that occur in the home, on the property and sometimes out on the street (though incidents involving motor vehicles are generally excluded).

However, almost all homeowners’ insurance policies have some provision that excludes coverage for intentional acts. That is, if an insured acted with some specific intent to injure the victim, the resulting injury will not be covered under the policy. Many courts have held the intention of the insured is a question of fact for a jury, though sometimes there is substantial evidence and intent to harm (or lack thereof) is clear.

There may be some cases, however, where even intentional criminal acts could be covered. For example, if the perpetrator was acting in self-defense and used more force than was actually needed, coverage might be extended. Same for actions for which the accused lacks the mental capacity to act rationally. But it will all depend on the specific language in the policy. Continue reading ›

Yang v. Little Rock City – Death of Boy, Mother Spurs Lawsuits Alleging Poor Emergency Response

December 14, 2015 | Associates and Bruce L. Scheiner

A woman was traveling less than a mile from her home to her son’s daycare in Arkansas when her vehicle hit a patch of black ice near an intersection. She careened into a nearby pond, and immediately called 911. Frantic as she and her 5-year-old sunk deeper into the icy water, the woman waited for emergency response that would be too late for her.

It took 53 minutes from the time she placed the call until firefighters and police arrived. She was deceased when they pulled her out. Her son did survive initially, but was critically ill and suffered brain damage. He died two years later from injuries related to the crash.

His father filed two wrongful death lawsuits against the city for failed emergency response. The first case, Yang v. Little Rock City, et al., was filed in 2013 on behalf of his son. A second lawsuit with the same name, Yang v. Little Rock City of, et al., was filed this year on behalf of his wife. The lawsuits allege the long delay in the arrival of a water rescue team meant his wife and son suffered prolonged exposure to cold water, which ultimately led to their deaths. He asserts this delay was preventable, and could be attributed in large part to a single employee who was known to have serious performance issues, even before she was hired. Continue reading ›

Stensland v. Harding County – Government Liability for Poor Road Conditions

December 13, 2015 | Associates and Bruce L. Scheiner

In most car accident lawsuits, plaintiffs take action against at-fault drivers and their insurance companies. Sometimes, plaintiffs may file uninsured or underinsured motorist coverage through their own auto insurer if the at-fault driver’s coverage is inadequate.

However, the possibility that a government agency may be responsible for poor construction or maintenance of a roadway can’t be overlooked. This is especially true in single-vehicle accidents. If it can be shown the government agency owed a duty to keep the road in a reasonably safe condition, and its failure resulted in injury to someone using the road, that may be grounds for compensation.

Such cases require extensive analysis from at least one and possibly more expert witnesses and a law firm with ample resources to ensure all necessary information can be gathered in preparation. Continue reading ›