Personal Injury

Florida Apartment Shooting Generates Questions of Landlord Liability

Published on: February 21, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Recently in Florida, three people were shot while walking in an apartment’s public space by an unknown number of suspects. Two of three died from their injuries and one remained wounded. The apartment is in a gated residence. Crime in apartment complexes or other public spaces are common, and accountability and relief does not just come from the perpetrator of the crime, but from the owner of the premises.

A landlord can be held liable for a crime that occurs on his or her property by a third party if the crime is considered foreseeable and if the crime would have been considered preventable, had the owner put certain precautions in place. Much of the liability hinges on the relationship of the owner to the person injured on the property. If the injured party was a tenant or a guest of the tenant, or someone else invited onto the property by the owner, then the landlord has a duty to maintain a reasonably safe condition. They must also warn of any dangers that these same parties may not know themselves. However, if the people on the property were not invited, then the landlord does not have a duty to guard against third party crimes.

Florida courts have considered what is foreseeable. If other prior crimes of a similar nature have occurred on the premises, then that type of crime is considered foreseeable. (See Prieto v. Miami-Dade County, 803 So. 2d 780 (Fla. 3d D.C.A. 2001)). Also, if the area is a “high crime” area, where similar crimes occurred in temporal and geographic proximity to the apartment, then liability for a crime on the premises could be created.

Some Florida courts have extended beyond similar crimes or crimes that have occurred in a specific geographic proximity. The Fourth District Court of Appeals has allowed evidence of dissimilar crimes and the Third District allowed evidence of crimes in an area outside of the premises so long as they weren’t ‘substantial distances away’. (See Holiday Inns, Inc. v. Shelburne, 576 So. 2d 322, 331 (Fla. 4th D.C.A. 1991) and Lomillo v. Howard Johnsons Co., 471 So. 2d 1296, 1297 (Fla. 3d DCA 1985).)

Landlords are liable for accidents and injuries beyond criminal acts that occur on the premises. If an accident occurs because of damaged property or negligently maintained structures, then the landlord is also liable to any occupant or other invited guest. A landlord must maintain safe and healthy premises, and should not leave common spaces in disrepair. Poorly lit hallways or slippery stairs may contribute to a fall which can lead to expensive medical care.

New Florida PIP Law Limits Time and Medical Options for Those Injured In a Car Accident

Published on: February 13, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Four children and one adult driver had to be taken to the hospital near Miami, Florida after a driver crossed the center-line and hit their shuttle van head-on. Two children were ejected from the vehicle, but were in stable condition, one child’s condition was unknown, and the fourth child and driver remained uninjured. The driver claimed he was having a heart attack, but that was subsequently shown to be untrue.

While the victims in this recent accident quickly sought needed medical attention, other insured Florida car accident victims may not think they need, or can afford, medical services. The latest version of the Florida Motor Vehicle No-Fault statute, recently made effective at the beginning of 2013, substantially changed the laws regulating Personal Injury Protection (PIP). Foremost among the changes, is the mandate for those injured to receive initial services and care within 14 days of the accident.

Follow-up care is allowed, but must qualify under the statute. The new version of the PIP guidelines delineates the medical care providers that can perform the initial evaluation and treatment. Massage therapists and acupuncturists were explicitly excluded. Once that treatment is administered, then follow-up care related to the underlying condition is permitted.

The amount of coverage you receive under Florida’s new PIP laws will depend on whether the condition is considered an “emergency medical condition”. If it is, then you can receive up to $10,000. If not, then the maximum coverage is $2500. An “emergency medical condition” must be so serious that without immediate care, serious jeopardy to the patient’s health, serious impairment to bodily functions, or serious dysfunction of a body part or organ will occur. The previous statutory coverage also went up to $10,000, but allowed up to 80% of all reasonable expenses for medically necessary services, 60% of disability for any loss of gross income and earning capacity per individual from inability to work that was proximately caused by the accident, and 100% of replacement services like lawn care or childcare.

Injured Florida Worker Denied Opportunity to Hold Negligent Employer Liable

Published on: February 7, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Florida’s Fourth District Court of Appeals recently echoed a lower court’s ruling that prevented an injured Florida man from holding his employer directly liable for his construction accident injuries. Florida grants immunity to employers since employees are covered under mandatory workers’ compensation insurance. Workers cannot pursue personal injury claims against the employer unless they fall under the narrowly tailored exception. In this case, the court maintained that the worker did not show the employer knew of the danger from prior occurrences, that he himself was unaware of any dangers, and that the employer actively misled the worker of the project’s safety.

The worker was employed by a construction contractor who was installing a nine-ton wall on the day of the accident. Safe installation of that size of wall depends heavily on favorable weather conditions and cannot be performed if the wind speeds are too high. Prior to the accident, the installation had been delayed due to high winds over 20 mph. On the morning of the accident the winds were determined to be safe enough to proceed. Testimony from the general foreman and one of the crane operators differed from each other. The foreman testified that he radioed to the crew and informed them of 16-18 mph winds, but the crane operator recalled being informed the winds were 12-15 mph. The injured worker provided conflicting accounts, some indicating that he was concern with the windy condition, but didn’t know what it was and nonetheless relied on wind speed confirmation from the general foreman.

The Court looked to the last 13 years of case law and legislative action surrounding the immunity exception and pointed out that no employee has been able to show with virtual certainty that the employer committed an intentional tort. Since the Court had to view the case in a light most favorable to the employer, the employer only had to show that none of the elements of the immunity exception existed. The Court conceded that even if they accepted the worker’s version of the installation, the employer would only be grossly negligent and not liable for an intentional act.

Workers’ compensation benefits are determined by a calculation that factors in the worker’s impairment rating, the regular wage of the worker at the time of the accident, and the cost of medical care and related costs, among other things. Benefits are calculated with statutorily-created multipliers, and may be capped at 104 weeks. The amount of compensation can differ greatly depending on whether the worker is deemed temporarily disabled or permanently disabled.

A personal injury claim of the same or similar matter will likely calculate the same types of costs like medical care and lost wages. However, unlike worker’s compensation, the negligent party may also have to pay for pain and suffering or punitive damages, depending on the level of egregious behavior.

Fatal South Florida Hit-and-Run Leaves Many Questions, Few Answers

Published on: January 30, 2013 | by Friedman Rodman Frank & Estrada, P.A.

The Miami Herald recounted a horrific accident that took the life of a Miami father, killed by a suspected drunk driver. One witness saw the victim being struck and thrown into the air, but still had the wherewithal to call the police AND follow the alleged offender’s car (despite attempts to throw the witness off). The victim’s family will never be the same as they grapple with the shock, horror, and grief from this tragic death.

Sudden loss of a loved one or witnessing a terrible death has an unimaginable impact on one’s life. No subsequent actions, including verdicts in the justice system, can ever replace a person or erase the event from history. Sometimes though, in the midst of a crisis, you need help to guide you through the bureaucratic and financial consequences of such a mired circumstance. Friedman, Rodman & Frank have aided others in their time of need, whether it was applying for social security benefit or making the other party take responsibility for the actions through a civil action.

4280 pedestrians were killed in 2010, according the National Highway Traffic Safety Administration. In Florida, between 2006-2010, 5,737 people died from an alcohol-related crash, and 15,635 were injured. The consistent number between 2006-2008 caused government officials to create the Florida Impaired Driving Coalition to examine what could be done to lower the number of injured and killed Floridians. They plan to reduce the 5-year average by 5% each year by improving DUI enforcement and prosecution, increasing DUI prevention training, and enhancing DUI impairment legislation.

With the rising accessibility of mobile devices, distracted driving has also become a concern for Florida’s Department of Transportation. The 2012 Strategic Highway Safety Plan chose to focus on distracted driving because 5,474 people were killed and 448,000 were injured as a result of distracted driving. A Georgia man was recently killed in Florida after he hit a distracted driver’s vehicle left in the middle of the highway. The distracted driver dropped her cell phone and attempted to pick it up, while driving. She flipped her car and exited the vehicle to call 911. The man hit her car, left his vehicle, and then was hit by an on-coming semi-truck.

While mobile phone use has been headline driving news, there are many other ways a driver can become distracted and cause an accident injury or death. Fatigue has been shown to be as large of an impairment as alcohol intoxication. Florida instituted the “Ronshay Dugans Act“, which dedicates the first week of September to educating law enforcement and the public about the hazards of driving while tired. Other educational programs and initiatives like “Put it Down” work to educate the public to change hazardous habits like texting while driving.

Costa Concordia Wreck Leads to New Safety Policies

Published on: January 24, 2013 | by Friedman Rodman Frank & Estrada, P.A.

The tragic wreck that killed 32 passengers and crew off the coast of Giglio, Italy, has led the cruise industry to create ten new safety policies. The main change is for passengers to undergo “muster drills”, or passenger emergency drills, before the boat leaves the dock, as opposed to within 24 hours of departure.

In 2011 there were 922,491 total vessels registered in Florida. 742 boat accidents were reported to the Florida Fish and Wildlife Conservation Commission. If you have been injured in a boating accident, whether it was a cruise ship or privately owned boat, contact the Florida maritime lawyers at Friedman Rodman Frank & Estrada, P.A. They have taken on several Florida-based cruise ship companies for injuries that have happened on and off board, and are here to help you, even if you live elsewhere.

The amount of chaos and confusion that resulted from the Costa Corcordia captain’s negligence is overwhelming. Passengers and affected businesses have filed suit against Costa Crociere’s parent company, Carnival Corp., which is based in Miami, Florida. Some have run into logistical problems, as many have already been turned away saying that the only forum available to file suit is in Italy. Carnival Corp., in turn, has alleged in other related civil suit documents that the passengers’ injuries are partially or wholly to blame due to their own negligence.

Carnival Corp., has had a large part in the history of forum clauses – clauses often printed on the back of tickets that says the purchaser agrees to settle a dispute in a forum that the ticket issuer has listed. In Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1990), the U.S. Supreme Court ruled in favor of forum clauses that are not obtained by fraud or overreaching. In the underlying case, a couple from Washington state bought tickets to a cruise from Carnival Corp., based in Florida, that started in California and ended in Mexico. The wife sustained injuries when she slipped and fell on a deck mat while the boat was at sea off the coast of Mexico. The couple filed suit in her home state, and Carnival claimed that, per the forum clause, they had to file suit in Florida. The couple countered that they were physically and financially incapable of filing suit in Florida.

The lower, appellate court sided with the couple, agreeing that the couple would be denied their day in court, given their limitations, and that the forum clause was not “freely bargained for”. The Supreme Court disagreed, saying that it was a standard commercial clause, that Carnival Cruise Lines has the right to limit the forum for suit, and that this particular clause did not appear to discourage cruise passengers from pursuing legitimate claims. They did note, however, that all forum clauses are subject to scrutiny and should be fundamentally fair.

Florida’s Office of Insurance Regulation Looking for Beneficiaries of Multi-Million Dollar, Multi-Agency Life Insurance Settlement Agreements

Published on: January 15, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Florida’s Department of Financial Services, Bureau of Unclaimed Property, holds unclaimed accounts at more than $1 billion dollars. A large portion of this money was obtained through multi-million, multi-state settlement agreements with life insurance companies, including AIG, John Hancock, MetLife, Prudential, and Zurich. All of these companies were previously only using the Social Security Administration’s Death Master File to benefit themselves. They used the file to stop annuity payments to account-holders, but they weren’t using this registry to find beneficiaries that would require new payments.

This is a large example of insurance companies refusing to make the payments to which beneficiaries are entitled. Florida insurance companies are required by law to act in good faith when negotiating and settling a claim, but they often fall short of their fiduciary responsibilities. If you need assistance litigating a bad faith claim to get the compensation you are owed, the South Florida attorneys at Friedman Rodman Frank & Estrada, P.A. have the experience and results you are looking for.

The District Court of Appeals, 4th District recently ruled against the insurance company, American Vehicle Insurance Company (AVIC). AVIC had previously been awarded summary judgment in their favor, where they alleged that there was no bad faith negotiation on their part when they failed to make a settlement soon after the accident. The Court of Appeals was specifically looking to see if there were any material issues of fact for a jury to consider whether or not AVIC acted in bad faith.

The mother of the deceased originally filed suit in Florida against the drunk driver who ran into her daughter, causing serious injuries that induced a coma and later caused her death. The mother claimed the driver’s insurance company acted in bad faith in the immediate months after the accident by failing to offer a settlement. Two-days after the accident the claim was assigned to an employee who quickly assessed the case and decided that the driver was solely at fault, that the injuries exceeded the policy limits, and that the claim should be settled. The AVIC employee attempted to contact the mother, not the injured, and was advised that an attorney was hired. The suit against the driver was filed, and the settlement offers were rejected by the mother of the victim.

The mother was awarded damages in the original case, and decided to sue for bad faith. AVIC moved for summary judgment, arguing that the mother did not have a bad faith claim. The lower court agreed, and the mother appealed, stating that the question of whether AVIC acted in bad faith is determined by their actions, not the action of the claimant. The Court of Appeals agreed with the mother, recognizing that the insurer has an affirmative duty to negotiate settlements. The Court also pointed out that Florida has a stricter standard for summary judgment, requiring that the moving party show conclusively that no material issues remain for trial (Byrd v. BT Foods Inc., 948 So.2d 921, at 923-24 (Fla. 4th DCA 2007). Ultimately the Court stated, “Any delay in making an offer under the circumstances of this case even where there was no assurance that the claim could be settled could be viewed by a fact finder as evidence of bad faith.” The Court reversed the lower court’s ruling in favor of AVIC and remanded the case so the mother could move on to further proceedings.

Dogs Bites at Unexpected Florida Locations

Published on: January 4, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Dog bites can happen in surprising places. Whether it is the governor’s mansion, or the dog-friendly stretch of Lincoln Road, dogs sometimes lash out at others, unprovoked. Recently, a waitress was mauled by a dog while attempting to serve the dog water. The dog ripped into her lip, requiring 300 stitches and seven hours of surgery. Even though police were called to the scene, no charges were filed and the dog was allowed to remain with the owner.

If you have been the victim of a dog bite, contact Florida dog bite attorneys today to see whether you may be entitled to compensation.

Florida expects dog owners to be responsible owners. While a dog does not have to be deemed dangerous for a dog-owner to be held liable, a dog can be determined to be dangerous if it has aggressively bitten, attacked, or endangered or has inflicted severe injury on a human being on public or private property; has either severely injured or killed a domestic animal while off its owner’s property; is used for dog fighting; or attacked or chased someone down the street, unprovoked, in a way meant for an attack (which would have to be verified in an official investigation and with a sworn statement by one or more individuals).

Occasionally, a dog-bite victim may find they have to defend themselves against claims of comparative negligence. Florida law allows a jury to consider whether the victim of an injury in any way caused his or her own injury. If they consider the victim to be negligent, and that this negligence contributed to the injury, then the liability of the other party who contributed to the harm could be reduced.

The CDC estimates that about 4.5 million people are bitten by dogs each year. Approximately 20% of those people had to seek medical attention, including serious procedures like reconstructive surgery. In Florida alone, more than 500 victims of dog bites require hospitalization. Dog bites can lead to a life-threatening rabies infection, which is known to be prevalent in Florida. In 2006 over 300 individuals were recommended post-exposure prophylaxis due to dog bites. As medical costs continue to grow, one cannot afford to be found partially liable.

Dog bites do not only leave physical scars, they also have long-lasting psychological impacts. People who sustain dog bites will often have acute stress disorder or post traumatic stress disorder. Various intensive therapies may be required to make the victim feel safe again.