Personal Injury

Eleventh Circuit Reverses Lower Court Decision Involving the Definition of a “Land Motor Vehicle

Published on: May 10, 2023 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case, the United States Court of Appeals for the Eleventh Circuit issued an opinion in an appeal involving a dispute regarding the definition of a land motor vehicle in an insurance policy. The plaintiff, State Farm Mutual Automobile Insurance Company (State Farm), sued the defendant, an individual with a car insurance policy with State Farm after the defendant filed a claim when she was struck by an uninsured driver of an electric motorized scooter. State Farm denied the defendant’s claim and then sued, seeking a declaratory judgment that the Policy provided no coverage. Both parties moved for summary judgment. At trial, the district court denied the defendant’s motion and granted summary judgment in part to State Farm. The plaintiff then filed a timely appeal.

The incident that triggered this case occurred on a Florida highway when the defendant’s insured Nissan Altima was struck by a driver operating a Razor Pocket Mod scooter (the Scooter). The Scooter had a top speed of 15 mph with a total battery life of 40 minutes of continuous ride time. The Scooter was not manufactured with a taillight, brake lights, turn signals, or exterior mirrors, and no such equipment had been added. The defendant suffered serious injuries to her neck, back, and knee, with surgery expected as a result of the crash. The Nissan Altima sustained a cracked headlight and fog light, a crushed front bumper and fender, and a cracked passenger side mirror.

Following the crash, the defendant submitted a claim to State Farm for UM coverage in the amount of $100,000. State Farm denied the claim, stating that the Scooter was not an “uninsured motor vehicle” under the policy. The State Farm insurance policy stated that it would “pay compensatory damages for bodily injury an insured is legally entitled to recover from the owner or driver of an uninsured motor vehicle.

Florida Legislature Enacts Sweeping Personal Injury Reforms

Published on: April 30, 2023 | by Friedman Rodman Frank & Estrada, P.A.

On March 24, 2023, Florida Governor Ron DeSantis signed a far-reaching tort reform bill into law. The new law enacts several major changes to the Florida negligence liability system, the standard for bad-faith insurance claims, and the use of contingency-fee multipliers when calculating attorneys’ fees. Each of these changes directly influences how plaintiffs are able to pursue their claims in Florida moving forward. The announcement of the changes triggered a rush to the courthouses with negligence lawsuits in advance of its effective date, suggesting that the bill will curtain the overall tort liability landscape throughout the state.

Modified Comparative Negligence

The headline of the changes enacted by the Florida tort reform bill is the statewide shift from a pure comparative negligence system to a modified comparative negligence system. Under the old pure comparative negligence system, a plaintiff could recover an amount in proportion to the defendants’ percentage of responsibility for the plaintiff’s injuries regardless of the plaintiff’s liability. In practice, that meant that if a defendant was 30% responsible for a plaintiff’s injuries, the plaintiff could recover 30% of the damages associated with the injury from the defendant, even if the plaintiff was 70% liable. Under the old system, the plaintiff had four years to file a negligence lawsuit.

Under the new system, a plaintiff is able to recover in proportion to the defendants’ percentage of responsibility only if the plaintiff’s own share of responsibility is 50% or less. Meaning that if a plaintiff is more than 50% liable, the plaintiff cannot recover from the defendant. Additionally, the plaintiff has two years to file a negligence lawsuit, not four.

Increased Risks Associated with E-Bike Accidents

Published on: March 31, 2023 | by Friedman Rodman Frank & Estrada, P.A.

E-bike accident levels have continued to rise as e-bike usage climbs throughout the nation and Florida. Nationally, the sale of e-bikes has rapidly increased, with roughly 804,000 sold in 2021, up from only about 152,000 in 2016, according to the National Bicycle Dealers Association. E-bikes are a popular vehicle option for several reasons, including convenience, cost savings on gas, and reduced environmental impact relative to cars.

Unfortunately, e-bikes pose an elevated risk relative to conventional bicycles due to the greater velocity of e-bikes. The greater power and subsequent velocity that riders receive from e-bikes places riders at increased risk of accidents and greater harm resulting from such accidents. In fact, a 2020 study published in the peer-reviewed journal, Injury Prevention, found that riders of e-bikes are more likely to require hospitalization following accidents than riders of manual bicycles. A recent news article detailed a fatal crash between a truck and an e-bike in the Upper Keys.

According to the article, the crash occurred when a truck hit and killed a 59-year-old man on an e-bike was hit by a truck while trying to cross the road near Snake Creek Bridge in Islamorada. The Florida Highway Patrol said that the man was traveling north on the east side of U.S. 1 when he collided with a pickup truck driven by a 70-year-old man heading south towards Snake Creek Bridge. Per the law enforcement report, the man on the e-bike entered the southbound lane and into the pickup truck’s path before being struck on the right side. The man riding the e-bike died of his injuries. The Florida Highway Patrol is still investigating the crash, and charges are pending.

Wedding Guest Sues Bride and Caterer for “Poisonous” Marijuana-Laced Wedding Food

Published on: January 11, 2023 | by Friedman Rodman Frank & Estrada, P.A.

Wedding guests are generally subject to the desires of the bride and groom when it comes to the food and drinks served at a wedding. Guests with dietary restrictions or strong food preferences may need to avoid certain wedding foods, or even skip out on a reception entirely if an undesired or dangerous food is on the menu. For party guests to make an informed decision about whether to eat the food that is offered, the guests should be made aware of what exactly is on the menu. A Florida wedding guest has recently filed a lawsuit against both the bride and a catering company for serving marijuana-laced food at the wedding without the guests’ consent.

According to a recently published local news report discussing the lawsuit, the plaintiff was a guest at the defendant’s wedding held in the Orlando area in February 2022. The bride hired the other defendant, a catering company, to serve food at the wedding reception. The plaintiff’s lawsuit alleges that the wedding guests were not notified that there would be any drugs or other adulterants added to the wedding food, but the plaintiff and other guests reportedly began to feel ill after consuming the wedding food. Other guests identified the feeling as marijuana intoxication, and authorities were called to the scene. Several wedding guests were treated for the intoxication, with some reportedly being hospitalized. Police took some of the food samples into evidence, and it was later confirmed that the food contained highly intoxicating levels of marijuana. The bride and the caterer were later arrested on drug and criminal negligence charges.

The plaintiff’s lawsuit alleges that the bride and caterer were negligent in serving intoxicating drugs to wedding guests without their consent. The lawsuit claims that the plaintiff suffered from marijuana poisoning by consuming the food, and suffered serious damages as a result. Poisonings are the leading cause of deaths and hospitalizations among Florida residents aged 25-54 years old, with many of these events resulting from the consumption of illegal or improperly administered drugs. Poisoning hospitalizations also occur as a result of chemical exposure and foodborne illness. Florida residents who have been poisoned by another, whether intentionally or negligently, may have a cause of action for damages against the other party. An aggrieved party can pursue a Florida personal injury claim to hold the other party accountable for their actions and receive compensation for the negative effects of the poisoning.

Florida Assault and Battery Claims Under the Civil System

Published on: March 31, 2022 | by Friedman Rodman Frank & Estrada, P.A.

In some instances, those who suffer injuries from an intentional act may seek financial compensation from their attackers. Under Florida law, assault and battery victims may file a civil claim against the at-fault party similar to victims of traffic accidents, trip-and-falls, or other accidents in which they suffer harm. These claims are unique in that, unlike many other civil claims, these cases involve an intentional act by the assailant. Florida courts address assault and battery as separate claims, even though they often co-occur.

Assault refers to an intentional unlawful threat to physically hurt another. The threat can stem from the threatening party’s apparent ability to act upon their actions, words, or combination. Aggravated assault tends to involve using a deadly weapon to instill fear in the victim. Deadly weapons can be any mechanism that can inflict serious bodily injury upon a victim, such as a gun, knife, taser, or similar item.

These cases hinge on the claimant’s ability to establish that the threatening party demonstrated a clear intent to inflict harm. An attorney can assist claimants in gathering evidence and preparing a compelling case that illustrates that the threatening party instilled fear. Recently, the Third District Court of Appeals issued an opinion in an appeal of a Florida civil assault claim. The relevant background explains that a couple lived together in an apartment complex when they met with the property manager to discuss renewing the lease in the primary tenant’s name. A disagreement ensued, and the plaintiffs contended that the property manager pulled out a gun and placed it on a table in front of the claimants explaining that he would be vacating their lease.

Can You Recover Attorney’s Fees in a Florida Personal Injury Lawsuit?

Published on: November 18, 2021 | by Friedman Rodman Frank & Estrada, P.A.

Many Florida personal injury lawyers represent clients on a “contingency fee” basis. Under this framework, an attorney will get paid by deducting a portion of a final, personal injury or wrongful death settlement or from a damages award. Recently, a Florida injury plaintiff moved to assess attorneys fees based upon a settlement proposal. The trial court denied the motion, reasoning that the settlement proposal was ambiguous.

The case stems from injuries the plaintiff suffered while living as a tenant on the defendant’s property. Before litigation, the plaintiff served the defendant with a settlement proposal according to Florida Statutes § 768.79 and Florida Rules of Civil Procedure (FRCP) 1.442. The defendants did not accept the proposal, but a jury found it in favor of the plaintiff. The plaintiff moved for attorneys fees because the judgment exceeded the settlement proposal by more than twenty-five percent.

The defendants argued that the proposal included ambiguous and vague language and was beyond the scope of the claims. Florida courts strictly construe the statute and rule because the common law rule is that each party should pay its fees. Furthermore, settlements proposals must be “sufficiently clear” to allow the offeree to make an informed decision. The purpose of the rule is to conserve judicial resources and reduce litigation costs by encouraging settlement negotiations.

Florida Accident Victim Prevails on Appeal Based on Jury Instruction

Published on: October 24, 2021 | by Friedman Rodman Frank & Estrada, P.A.

An appellate court recently issued a decision in a Florida accident case resulting in serious injuries. The defendant admitted fault and the issues at trial related to damages, causation, and severity of the plaintiff’s injuries. The jury found in favor of the plaintiff but failed to address whether she was entitled to damages for her preexisting condition.

Florida follows the theory of the “eggshell plaintiff.” Under this concept, negligent parties take the injury victim as they found them. This means that the defendant will be liable for the full extent of a plaintiff’s injuries, even if their injuries were more than an average person would experience under similar circumstances. The doctrine applies in cases when an injury:

Activates a latent condition;

Florida Court Refuses to Dismiss Accident Victim’s Personal Injury Case

Published on: July 24, 2021 | by Friedman Rodman Frank & Estrada, P.A.

A lot of legal jargon sounds as foreign as it is. In the case of “forum non-conveniens,” however, the meaning is much like it sounds. A tactical strategy to avoid litigation, the concept of forum non-conveniens allows defendants to argue that the case against them should be dismissed because the court—or “forum”—where the suit was brought is inconvenient for them.

In the past, big companies defending suits against accident victims have gotten cases dismissed on the ground of forum non-conveniens. The results can be alarming and unfair. Lacking the same resources as the typical corporation, the average accident victim—perhaps still recovering from her injuries—is often unable to bring the case in the court the company says is convenient for them. For example, for obvious reasons, a Florida resident taking on a chain retailer probably would not want to bring her case in Alaska.

In a decision earlier this month, a Florida appellate court denied a large health care company’s attempt to squash a lawsuit through forum non-conveniens. A man had sued the company several years earlier, claiming that the company’s allegedly defective medical device had injured him.

Establishing the Duty of Care in a Florida Personal Injury Lawsuit

Published on: July 15, 2021 | by Friedman Rodman Frank & Estrada, P.A.

After experiencing an injury because of another’s negligence, an accident victim may be able to collect damages for their losses. Under Florida’s negligence laws, the plaintiff must establish that the at-fault party was responsible for the incident and ensuing injuries. While this may seem straightforward, the law has many nuances that make recovery challenging for many Florida accident victims. Injury plaintiffs must meet the four primary prongs of a personal injury lawsuit to recover damages successfully. In addition, they must be able to overcome any defenses the at-fault party poses.

Broadly speaking, a defendant may be liable for negligence if they failed to use reasonable care. Reasonable care is that which a similarly situated person would use under the same circumstances. Negligence may include the failure to do something that a reasonable person would do or doing something that a reasonable person would not do. The four elements of a Florida negligence lawsuit include establishing that the defendant owed the victim a duty, they breached that duty, that breach was the cause of the plaintiff’s harm, and the plaintiff suffered compensable losses. Defendants can refute any part of a plaintiff’s claim, and if they are successful, the claim will fail. As such, it is vital that claimants contact an attorney to ensure that all elements of their claim are met.

The most critical inquiry in these cases is whether the defendant owed the plaintiff a duty of care. In Florida, the duty of care is the other party’s legal responsibility to the injury victim. A person’s duty of care depends on many factors, including their age and relationship status to the victim. For instance, there are different duties of care for private citizens and their actions towards one another instead of the professional duty of care a medical provider has towards their patient. While a private citizen maintains a duty to drive safely and obey traffic rules, a nurse or doctor has a stricter duty of care to those they are treating than the average person. Similarly, the duty changes when the at-fault party is a business owner.

Florida Supreme Court Amends Summary Judgment Rule

Published on: May 20, 2021 | by Friedman Rodman Frank & Estrada, P.A.

Late last year, the Florida Supreme Court issued an opinion amending Rule 1.510, Florida’s summary judgment standard. Before making substantive changes, the Court allowed the public to submit comments. After receiving and reviewing the comments, the court issued an opinion amending Rule 1.510, effectively adopting the text of the federal standard. This change will undoubtedly have a significant impact on Florida’s injury lawsuits, as many cases are resolved during this stage of litigation.

The Florida Supreme Court noted that the public comments persuaded them that adopting the federal summary judgment rule would provide the courts with the most seamless and effective transition. The Court emphasized three leading changes in the amended rule.

First, there is an inherent similarity between the directed verdict and summary judgment standard. Under both standards, inquiries regarding whether a genuine issue of material fact exists hinges on the substantive evidence that the parties present. When the moving party does not hold the burden of persuasion, that party can obtain summary judgment without disproving the nonmoving party’s case. Instead, the movant can meet their burden by either producing evidence that a fact is not as it seems or by pointing out the other party’s failure to provide evidence to substantiate an issue.