Personal Injury

Southern District of Florida Refuses to Dismiss Negligence Claim Filed Against Cruise Ship Company Following Passenger’s Snorkeling Excursion Drowning

Published on: November 24, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In Pucci v. Carnival Corp., a woman set sail on a seven-day cruise with her family. While on board the ship, the woman purchased a snorkeling excursion that was marketed and sold on the vessel using brochures and television advertisements. The cruise ship company also marketed the excursion on its website. Despite the company’s sales efforts, the snorkeling excursion was operated by a third business which shared all profits and losses with the cruise company.

Prior to purchasing the snorkeling excursion, the woman apparently informed cruise ship employees that she was not a strong swimmer. Despite this, the workers reportedly assured the woman that she would remain safe during the event. After receiving the supposed assurances, the woman purchased a ticket for the snorkeling excursion.

Appeals Court Orders New Trial in Florida Car Accident Case

Published on: November 10, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In Maniglia v. Carpenter, two men were involved in a nighttime car accident on Interstate 95 in Florida in 2009. The accident was purportedly caused when the left front portion of one car struck the right rear corner of another vehicle while changing lanes. Although the driver who was changing lanes and his passenger asserted that the collision was minor, the other driver complained that it was a serious accident.

Following the crash, the allegedly hurt motorist sought chiropractic treatment for neck and back pain. An x-ray showed no injuries except for “normal wear and tear.” As a result, the chiropractor did not place any work restrictions on the injured driver. About one month later, the injured man collided with a car while driving a golf cart. The man was apparently thrown to the ground as a result. He was also arrested following an altercation with law enforcement authorities who responded to the incident. Despite this, the injured driver apparently failed to disclose the subsequent accident to his chiropractor. The hurt man also sought treatment from a surgeon, who suggested the man undergo surgery after examining magnetic resonance images taken following the golf cart incident.

PIP Benefits Not Due When Insurer Lacked Notice in Florida Pedestrian Injury Case

Published on: October 23, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In State Farm Mutual Automobile Insurance Company v. Gonzalez, a pedestrian was apparently struck by a car in Florida in May 2001. Following the incident, the injured woman was treated at a local emergency room. The woman’s health care insurer later paid the hospital $685 for the woman’s treatment. The hospital did not send a bill to the woman’s auto insurer.

More than six months later, the pedestrian’s attorney sent a letter of representation and a copy of the accident report to the woman’s liability insurer. The lawyer also requested certain insurance information from the company. Despite the correspondence, the woman’s counsel failed to include a hospital bill or request payment from the auto insurer. After that, the insurance company allegedly made numerous unsuccessful attempts to contact the injured pedestrian’s lawyer regarding her harm. The insurer ultimately closed the woman’s claim in August 2004.

Appeals Court Rules Summary Judgment Was Not Merited in Florida Negligence Case

Published on: October 20, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In Peterson v. Flare Fittings, Inc., a man was apparently struck in the head by a 10-foot balloon that was tethered to a tree while he was attending a sporting event and trade show on a piece of property owned by a major theme park. According to the man, the balloon suddenly descended due to a gust of wind. As a result, the man reportedly became dazed and suffered pain.

After he was injured, the man reported the incident to a member of the event staff, who then brought the balloon down. A theme park manager allegedly told the man that the company would pay for any injuries he sustained due to being struck by the balloon. The manager also supposedly advised the man to seek medical treatment. Later that day, the injured man received x-rays and pain medication at a nearby hospital.

Florida Liability Insurer Held Jointly and Severally Liable for Costs in Car Accident Case

Published on: October 15, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In New Hampshire Indemnity Co. v. Gray, a Florida driver was sued following a catastrophic auto accident. Throughout the case, the man’s insurance company provided a defense to the motorist, pursuant to the terms of his liability insurance policy. At the close of the trial, a jury awarded the plaintiff about $2.3 million in damages.

After a final judgment was entered against the driver, the injured plaintiff sought tax costs against the insurance company. The plaintiff also sought to join the insurer in the judgment. The company opposed the injured plaintiff’s request and argued it could not be held responsible for costs under the terms of the liability policy. Additionally, the insurer claimed it could not be joined in the judgment because the plaintiff failed to comply with the procedural requirements enumerated in Section 627.4136(4) of the Florida Statutes. After the plaintiff complied with the terms of the law, but before the insurance company received notice, the trial court held the company jointly and severally liable for over $135,000 in costs.

Middle District of Florida Holds Medical Malpractice Case Against Federally Supported Hospital Must Comply With Notice Provisions in the FTCA

Published on: October 8, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In Rodriguez v. Heart of Florida Health Center, Inc., the estate of a deceased woman filed a medical malpractice lawsuit against a hospital and a doctor in Marion County, Florida. According to the complaint, the woman’s cancer diagnosis was seriously delayed as a result of the physician’s negligence. As a result, the estate sought damages for the decedent’s pain, suffering, disability, emotional anguish, medical expenses, and more. After the lawsuit was filed, the defendants removed the case to the Middle District of Florida based on diversity of citizenship.

Next, the United States filed a motion to substitute the government as the defendant in the case. According to the U.S., the hospital and the doctor in her capacity as an employee were immune from suit because the facility enjoyed federal support. The U.S. also filed a motion to dismiss the medical malpractice lawsuit, due to lack of subject matter jurisdiction. In its motion to dismiss, the government argued the estate’s only remedy was a case brought under the Federal Tort Claims Act (“FTCA”). The U.S. also asserted that the lawsuit should be dismissed because the estate failed to exhaust all administrative remedies as required by the statute.

Appellate Court Finds Florida Couple’s Products Liability Case is Time Barred

Published on: September 29, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In Dominguez v. Hayward Industries, Inc., a Florida man was apparently seriously injured when a swimming pool filter unexpectedly exploded in 2012. Following the incident, the man and his wife filed a products liability lawsuit against the filter manufacturer, the distributor of the product, and the company that installed it 13 years earlier. According to the couple’s complaint, the defendants committed negligence and other torts against the man when they manufactured, sold, and installed the allegedly defective swimming pool filter. Because of this, the couple sought damages for the man’s resulting head injury.

In response to the couple’s lawsuit, the defendants filed a motion for summary judgment, claiming the 12-year statute of repose enumerated in Section 95.031 of the Florida Statutes barred the couple’s products liability case. Much like a statute of limitations, Florida’s statute of repose limits the time frame during which specific causes of action may be filed. If a lawsuit is not brought before the statute of repose expires, a plaintiff’s claim is typically barred forever. The trial court agreed with the defendants and entered judgment in their favor. The couple then filed an appeal with Florida’s Third District Court of Appeal.

Florida Appeals Court Overturns Summary Judgment in Air Show Negligence Case

Published on: September 11, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In Slora v. Sun ‘N Fun Fly-In, Inc., a woman was injured when a tornado hit a security guard booth at Lakeland Linder Regional Airport. At the time of the incident, the woman was employed by a security staffing agency that provided security services to an air show company whose operations were subject to the regulatory jurisdiction of the Federal Aviation Administration (“FAA”). Because of this, the company was required to file certain certificates of waiver with the FAA and agree to provide security and policing services in order to perform the show.

After the woman was injured, she collected workers’ compensation benefits from her employer. The worker then filed a negligence action against the air show operator in a Florida circuit court. According to her complaint, the severe weather that caused her injuries was foreseeable, the air show company failed to maintain the guard booth in a reasonably safe manner, and the business failed to warn her of the personal injury risks she faced in the event of severe weather. As a result, the security guard asked the court to award her damages. In response, the air show company filed a motion for summary judgment, arguing the guard’s claims were barred by Section 440.10(1)(b) of the Florida Workers’ Compensation Law.

Tampa Court Refuses to Dismiss Insurer From Lawsuit Alleging Employer Committed an Intentional Tort Against Leased Worker

Published on: August 27, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In Companion Property & Casualty Ins. Co. v. All Roof Systems, LLC, a Florida man was apparently severely injured when he fell through a hole that was concealed while working on a roof. At the time, the man was a contract employee who was leased to the roofing company by a staffing agency. As a result of his injury, the hurt man and his wife filed a lawsuit against the roofing company in state court. In the couple’s state court complaint, they argued the roofer was not entitled to enjoy workers’ compensation immunity under Section 440.11(1)(b)(2) of the Florida Statutes.

Next, the roofing company’s insurer filed a motion for judgment on the pleadings with the Middle District of Florida in Tampa. According to the insurance company, it had no duty to defend or indemnify the roofer because the plaintiff’s injury resulting from the concealed hole constituted an intentional tort. Under Florida’s no-fault workers’ compensation law, employers are not provided with immunity for intentional torts. In addition, the insurer claimed such a claim was not covered under the roofer’s insurance policy.

Federal Court Refuses to Remand Florida Woman’s Negligence Lawsuit Back to State Court

Published on: August 17, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In Derringer v. Cracker Barrel Old Country Store, Inc., a woman was allegedly injured when she was struck with a plate of food that a Florida restaurant employee was carrying. As a result of her harm, the woman filed a personal injury lawsuit against the restaurant in a Florida court. About nine months later, the restaurant removed the negligence case to the Middle District of Florida, based on diversity of citizenship. After that, the injured plaintiff asked the federal court to remand the action back to state court.

Under 28 U.S.C. § 1441(a), a case may be removed to federal court when the parties hail from different states and the amount in controversy exceeds $75,000. In general, the party who seeks removal bears the burden of demonstrating to the court that a case should be tried in federal court. If a defendant fails to do so, the action must be remanded back to state court. Additionally, the removal statute is construed narrowly by the courts. Typically, any doubts must be resolved in favor of a case being tried in state court.