Car Accident

Recovering Attorney’s Fees After a Florida Insurance Coverage Lawsuit

Published on: October 26, 2020 | by Friedman Rodman Frank & Estrada, P.A.

Under Florida Statute § 627.428, a party may be eligible to recover attorneys’ fees when a policyholder prevails and recovers actual insurance proceeds. However, not every insurance dispute or coverage lawsuit results in an award of attorneys’ fees. Typically, Florida courts authorize recovery of attorneys’ fees when the insurer has “wrongly withheld payment of the proceeds” of a policy. The law does not permit recovery of attorneys’ fees if the insured does not recover money or benefits, or if the court determines that the insurance company never wrongfully withheld payments.

Recently, the District Court of Appeal of the State of Florida issued an opinion addressing whether attorneys’ fees were appropriate. In this case, the plaintiff filed a negligence lawsuit against an at-fault driver. The defendant passed away during the proceedings, and the plaintiff substituted his estate as a party defendant. While awaiting the case’s status, the trial court ordered the plaintiff to set up the estate for the defendant and substitute the defendant’s estate for his name. During this time, an estate was created for the defendant in probate court. The court did not name a personal representative, and the plaintiff substituted “John Doe” for the defendant in his complaint. After that, the probate court appointed a representative, however, the plaintiff failed to amend his complaint to include this update.

The plaintiff proposed a settlement agreement, and the defendants moved to dismiss the claim, arguing that the complaint named “John Doe” as the personal representative. The trial court ordered the plaintiff to amend his complaint, and a jury found in favor of the plaintiff. The plaintiff argued that he was entitled to attorneys’ fees, because the defendants rejected his initial settlement offer.

Florida Court Issues Opinion in Case Involving Uninsured Motorist Dispute

Published on: September 21, 2020 | by Friedman Rodman Frank & Estrada, P.A.

Recently, a Florida appellate court issued an opinion in a plaintiff’s appeal of several issues in a car accident lawsuit against their uninsured motorist carrier (UM). The case stemmed from a chain-reaction three-car accident. According to the court’s opinion, the driver of the first car made a sudden lane change and abruptly slammed on their brakes. This resulted in the second-car rear-ending the first car, and the third car, driven by the plaintiff, slammed into the second car. The driver of the first car received a citation and assumed liability.

Shortly after the accident, the plaintiffs sent a demand letter to their UM carrier. They requested full policy coverage but failed to include the husband’s medical records. After the UM requested additional information, the plaintiffs asserted their rights again, and included medical documentation. The UM carrier denied coverage, and requested several other pieces of information, including confirmation of the host vehicle’s coverage, tender of available coverage, and additional hospital records. Certain information indicated that the husband might have been mostly at fault for the accident. However, the plaintiffs advised the company that they would sue if the company did not pay the full benefits. The husband filed a Civil Remedy Notice (CRN), and a jury returned a verdict in favor of the plaintiffs, apportioning 90% fault on the first driver, and 10% on the husband. However, the court reversed jurisdiction to conduct a bad faith trial.

After an initial mistrial, both parties filed motions to preclude the admission of certain documents. The court granted the defendant’s motion to admit the parties’ mediation activity log. The defendants used the log to show that the plaintiffs initially wanted a $50,000 settlement instead of their current demand of $500,000. The husband argued that the log was inadmissible because it was confidential, irrelevant, violated the trial court’s orders, and would only inflame the passions of the jury.

Florida Appeals Court Affirms Punitive Damages in Pedestrian Accident Lawsuit

Published on: September 10, 2020 | by Friedman Rodman Frank & Estrada, P.A.

The First District Court of the State of Florida recently issued an opinion in response to a defendant’s petition for certiorari review of a punitive damages claim. The case arose following an incident where the defendant was driving under the influence of alcohol and marijuana. According to the court’s opinion, the defendant ran his car into the plaintiff and several other pedestrians. The defendant pled guilty to the claims, and the plaintiff amended his complaint to add a claim for punitive damages. The trial court granted the plaintiff’s motion to amend his complaint, and the defendant appealed.

Under Florida law, a party may ask the court for certiorari relief if the party believes that the trial court failed to comply with appropriate procedural requirements. The party must establish that the trial court departed from the law’s requirements, which resulted in a material injury to the case, and the error cannot be corrected on appeal.

In this case, the defendant argued that the trial court erred in allowing the plaintiff to claim punitive damages. The defendant claimed that the plaintiff did not abide by the evidentiary requirements of a punitive damages claim. Further, the defendant argued that the court failed to make the appropriate findings that the plaintiff met the punitive damages evidentiary standard.

What Is a Letter of Protection in a Florida an Uninsured Motorist Claim?

Published on: August 30, 2020 | by Friedman Rodman Frank & Estrada, P.A.

When a person is injured in a car accident and does not have insurance, they often encounter many issues while filing a claim. One such tool plaintiffs will use in this instance is a letter of protection. In Florida, a letter of protection is used by a person without insurance to obtain medical services in exchange for part of their insurance settlement claim. In a recent Florida appellate court case, the court was tasked with deciding whether a jury could have determined the credibility of a doctor who testified under a letter of protection after he made conflicting statements. Ultimately, the court decided that there was enough information presented during the trial for a jury to be able to assess the doctor’s credibility.

According to the court’s opinion, the plaintiff suffered various injuries, most prominently her right knee, in a car accident. The driver who caused the accident did not have car insurance. Because of this, the plaintiff filed a claim against her uninsured motorist insurance, to cover the costs of the accident. The payment dispute was regarding a prior knee injury; the plaintiff had previously hurt her knee, which was rendered permanently injured after the accident. However, the plaintiff’s doctor claimed that the plaintiff had stopped feeling pain in her knee prior to the accident, while the defendant, as well as evidence from the plaintiff’s own testimony, indicated this was not true.

In this case, the plaintiff was given treatment under a letter of protection. While many are unaware of it, a letter of protection can be extremely beneficial to those without insurance. A letter of protection is a document sent by an attorney on a client’s behalf to a health-care provider when the client needs medical treatment but does not have insurance. Generally, the letter explains that the client is involved in a court case, and in exchange for deferred payment of medical services, the health-care provider will receive part of the settlement or award.

Florida Appeals Court Finds Hotel Did Not Owe Victim a Duty of Care in Recent Wrongful Death Case

Published on: August 27, 2020 | by Friedman Rodman Frank & Estrada, P.A.

In light of COVID-19, many families have been heading out to explore the great outdoors for nature getaways and safer vacations that still adhere to social distancing guidelines. However, no one expects to get into a Florida accident while on a trip, especially one that has devastating consequences.

In a recent state appellate decision, a plaintiff filed a wrongful death claim on behalf of the decedent against a Florida lodge and resort after an accident caused the individual’s death. Evidently, the defendant lodge offered a complimentary golf cart service to take guests around its property. However, the golf cart was prohibited from traveling on public roads beyond the lodge’s property, but could cross the main highway flanking the lodge grounds.

On the night of the accident, the decedent got into a golf cart and asked a bellman from the lodge to take him to a local store located on the other side of the highway. Consistent with lodge policy, the bellman drove the decedent through the lodge grounds and stopped to drop the decedent off. When the decedent exited the golf cart and attempted to cross the highway on foot, he was struck by a vehicle. Following the man’s death, the plaintiff argued that the defendant lodge undertook a duty to reasonably and safely transport the decedent and that they failed to warn him of potential dangers of the highway when he was dropped off. Following the trial, the lower court ruled in favor of the defendant and the plaintiff appealed.

Court Discusses Pain and Suffering Damages in Florida Personal Injury Lawsuit

Published on: August 20, 2020 | by Friedman Rodman Frank & Estrada, P.A.

Recently, a Florida appellate court issued an opinion in a plaintiff’s appeal of a jury’s finding that she did not suffer permanent injury and was not entitled to pain and suffering damages.

The case arose after the defendant struck the plaintiff’s car as she was exiting the highway. According to the court’s opinion, at trial, the plaintiff, claimed that her emergency room doctor referred her to a treating chiropractor. However, the defendant introduced evidence that the plaintiff’s attorney referred her to her treating chiropractor. The jury returned a verdict awarding no damages for pain and suffering. The plaintiff appealed.

On appeal, the plaintiff contended that the trial court erred in allowing the defendant to argue that there was a referral relationship between the plaintiff’s attorney and chiropractor, resulting in a jury finding she was not entitled to pain and suffering damages.

The Applicability of the Set-Off Defense in Florida Car Accident Claims

Published on: July 29, 2020 | by Friedman Rodman Frank & Estrada, P.A.

In a recent opinion, an appellate court in Florida addressed the applicability of the set-off defense after a car accident victim filed a claim for damages with an insurance company. The plaintiff suffered injuries when an uninsured motorist crashed into his car, resulting in serious physical and property damage to the plaintiff. In response, the plaintiff filed a claim with his insurance company under the uninsured/underinsured (UIM) provision in his policy. The insurance company denied the claim, and the plaintiff filed a lawsuit for breach of contract.

A jury determined that the plaintiff was entitled to damages for his loss of earnings, medical expenses, and pain and suffering. Subsequently, the insurance company contended that the trial court erred in failing to set off duplicated benefits that the plaintiff obtained from other sources. The defendant asked the court to set off from the damages award, the amount of any settlements the victim received that duplicated any part of the verdict.

The court analyzed Florida’s set-off rules and concluded that the trial court should amend the verdict to reflect the duplication. After a car accident, injury victims may obtain benefits from more than one source for a single accident or claim. This often occurs when the negligent motorist or their insurance company settles or pays out damages for a portion of the victim’s losses. In most cases, the settlement amount specifies what exactly the payout covers. For example, the settlement amount may specify that the payments are for medical benefits or lost wages. Although, Florida’s laws allow double recovery, there are restrictions when there is a duplication of benefits.

The Good Samaritan Act and Its Effect on Florida Personal Injury Claims

Published on: July 15, 2020 | by Friedman Rodman Frank & Estrada, P.A.

Under Florida law, a person who suffers injuries because of a negligent healthcare professional may be able to recover for their damages. However, the plaintiff must meet specific requirements to succeed on their claim. Specifically, a plaintiff must establish that the healthcare provider had a legal duty to provide the appropriate care, that they breached that duty, and they suffered damages as a result of the defendant’s breach. To establish the “breach” element of a claim, plaintiffs must show that the healthcare provider’s conduct fell below the prevailing professional standard of care for a similarly situated provider.

Some healthcare providers try avoiding liability by evoking the Florida Good Samaritan Act (the Act). The Act protects some healthcare practitioners from liability when they are providing necessary emergency care. The Act covers physician assistants, nurses, and other professionals who provide emergency care. In these cases, the emergency provider may not be liable for civil damages if the claim stems from their emergency care or treatment, if another reasonably prudent person would have acted similarly. The law extends coverage, even if the patient did not receive treatment through an emergency room. However, plaintiffs can recover if they prove that the provider exhibited reckless disregard in their care, such that they knew or should have known that their behavior would create an unreasonable risk of injury or harm. Additionally, the Act may not apply when there are questions regarding whether the patient was receiving emergency medical treatment.

Recently, a state appellate court issued an opinion addressing issues that often arise in Florida accident claims. In that case, the plaintiff suffered severe bodily injuries when an ambulance driver ran a red light and slammed into the plaintiff’s car. The ambulance was transporting a patient after he had undergone dialysis. The plaintiff argued that the ambulance driver was not carrying a patient during an emergency situation, and he was not using his lights or siren when he ran the red light. The defendant argued that they were immune under the state’s medical provider immunity act, and they did not engage in willful or wanton conduct. The plaintiff argued that merely operating an ambulance for non-emergency transport is not covered by the state’s act. Ultimately, the court found that the ambulance driver’s actions in driving and running a red light during a non-emergency event were not integral to providing care. Therefore, the court affirmed that the ambulance driver was liable for the plaintiff’s injuries.

The Implication of Voluntary Intoxication in Florida Third-Party Personal Injury Claims

Published on: June 25, 2020 | by Friedman Rodman Frank & Estrada, P.A.

The First District Court of Appeal in the State of Florida recently reviewed a trial court’s order denying a manufacturer a directed verdict in a Florida wrongful death claim. According to the court’s opinion, the company manufactured products containing a synthetic marijuana product, commonly known as “spice.” A warning was contained in the product that indicated it was unsafe for consumption by humans. A man purchased the product voluntarily consumed it, subsequently became impaired, and then drove his car into another vehicle. The man was sentenced to prison for his criminal conduct. The decedent’s representatives filed a wrongful death lawsuit against the manufacturer, arguing that the company was liable for their family member’s death.

At trial, the company filed a directed verdict motion and argued that they were not proximately liable for the death because the man’s intoxication was the sole cause of the decedent’s death. The trial court denied the motion, and the jury found in favor of the plaintiffs, attributing 65% of the fault to the company and 35% fault to the intoxicated driver. The company appealed the ruling arguing, again, that the impaired man’s criminal conduct was the sole proximate cause of the plaintiff’s injuries.

Proximate cause is a legal theory that imputes liability on a party when their actions set forth a sequence of events that led to an injury. Under Florida law, questions regarding proximate cause are left to the fact-finder; however, in some situations, a judge may address the issue where evidence suggests there is no more than one inference. Moreover, the Florida Supreme Court has found that when an actor’s behavior creates a dangerous situation, the law does not permit a jury to find a proximate cause where an unforeseeable, intervening act is responsible for the injuries. In some cases, plaintiffs may argue that third parties that create a dangerous situation could reasonably foresee that their negligence could set a chain of events in a motion that may result in injuries. However, Florida does not allow a jury to consider proximate cause in cases where the person responsible for the injuries is voluntarily impaired or purposely misuses a product.

What Is “Stacking” Under Florida Insurance Law?

Published on: May 20, 2020 | by Friedman Rodman Frank & Estrada, P.A.

Florida has one of the highest rates of car accidents involving uninsured or underinsured (UIM) drivers in the country. Car accidents with drivers without appropriate insurance can have long-term medical and financial consequences on a car accident victim, and Florida drivers must protect themselves.

Florida requires that motorists maintain two types of auto insurance, personal injury protection (PIP), and property damage liability (PD). Florida’s designation as a “no-fault” state means that a motorist’s PIP coverage will cover covert medical expenses up to $10,000, without consideration of fault. However, Florida does not require motorists to carry bodily injury coverage; this coverage pays expenses the other party incurs because of an accident. The only time this does not apply is if the responsible driver has been convicted of DUI.

In response to these potentially devastating situations, Florida insurance law requires insurance companies to offer motorists the option to purchase UIM coverage. Thus, although UIM coverage is not mandatory, insurance companies must offer coverage to policyholders. The insurance protects the insured if they are involved in an accident with another motorist who does not have any or enough bodily injury insurance. However, policyholders must understand that UIM coverage is only an option if they carry bodily injury coverage in an amount higher than the UIM coverage. Florida’s minimum bodily injury coverage is $10,000 per person and $20,000 per occurrence.