Wrongful Death

Florida Mother Fights to Change Wrongful Death Rules

Published on: February 18, 2016 | by Friedman Rodman Frank & Estrada, P.A.

Linda Porter’s son, Pete Thomas, died 12 years ago in a New Port Richey hospital. Now Porter goes to rock concerts and imagines her long-haired guitarist son with her in the audience. This April, Pete would have been 50 years old.

In October 2014, the 38-year-old was admitted to the Morton Plant North Bay Hospital with abdominal pain. Less than 24 hours had passed before he went into respiratory arrest and was put on a ventilator. He died roughly six weeks later. Porter believes the hospital caused Pete’s death by over-medicating him.

Florida Appeals Court Holds Post-Trial Interest Accrues from Date of Judgment, Not Verdict

Published on: February 15, 2016 | by Friedman Rodman Frank & Estrada, P.A.

A Florida appellate court recently reversed a lower court’s ruling that when the amount of the judgment in a tort case is modified on appeal, post-trial interest must accrue from the date of the verdict rather than from the date of the original judgment. The court reasoned that the earlier accrual date in such circumstances unjustly punishes the losing party.In the fall of 2011, a jury rendered a verdict of roughly $7.5 million in a wrongful death lawsuit, finding appellate Shoemaker 40 percent at fault for decedent Stephen Sliger’s death. Following the verdict, Shoemaker and his co-defendants filed a motion to cap non-economic damages according to section 766.118(2) of Florida Statutes. They argued that under 766.118, the non-economic damages should be capped at $500,000. Sonia Sliger, the representative of Stephen Sliger’s estate, responded that section 766.118’s damages limitation violated the Florida and U.S. constitutions.

Florida Appeals Court Remands Wrongful Death Lawsuit Filed Against Ship Owners for a New Trial

Published on: January 4, 2016 | by Friedman Rodman Frank & Estrada, P.A.

In Soto v. McCulley Marine Services, Inc., a man tragically drowned near Longboat Pass on July 4, 2009 when he fell from a jet ski and was sucked underneath a moored barge while wearing a life preserver. At the time of the unfortunate drowning, a nearby dock was being used as a staging area in connection with an ongoing artificial reef program established by Manatee County. When the man drowned, the barge and a 65-foot tugboat that were permitted to participate in the reef building program were both moored at the dock.

Following the man’s untimely passing, his estate filed a wrongful death lawsuit against the owner of the two ships. According to the man’s personal representative, the ships were docked in a negligent manner. As a result, the configuration of the vessels allegedly exacerbated the strong tides that were present in the area and caused the man to be pulled beneath the barge despite his safety jacket.

Florida Appeals Court Rules Insurance Company May Not be Joined in Pending Fatal Car Accident Lawsuit

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

In Geico General Ins. Co. v. Lepine, a Florida man was unfortunately killed in a motor vehicle collision. Following the accident, the man’s wife filed a lawsuit on behalf of herself and her husband’s estate against the driver who was allegedly responsible for the fatal traffic wreck and his automobile insurer. According to the woman’s complaint, the insurance company reneged on its verbal agreement to pay her the full policy limits of $100,000.

In response to the lawsuit, the insurer filed a motion to dismiss the breach of contract claims brought against the company. In its motion, the business argued Section 627.4136 of the Florida Statutes barred the decedent’s wife from filing a direct cause of action against the insurance company. Under the so-called nonjoinder statute, a noninsured may not file a direct action against an insurance company in Florida without first obtaining a settlement or verdict against the insured party.

Tragic Infant Death Apparently Caused by Florida Daycare Worker Was Excluded from Personal Auto Insurance Policy

Published on: September 1, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In Bryant v. Windhaven Ins. Co., a Florida man purchased a personal automobile liability policy from an insurance company. After securing the policy, the man operated a van in the course of his employment with a daycare center. As part of his job duties, the man picked up children and drove them to the daycare center each day. Tragically, the driver apparently picked up an infant and forgot the child in the van in July 2011. The infant unfortunately passed away before he was discovered, strapped into his car seat seven hours later.

Following the child’s untimely death, his estate filed a wrongful death lawsuit against the driver, the daycare center, and the owner of the property where the daycare operated. In response to the case, the driver requested that his personal automobile insurer defend and indemnify him. The insurer responded by stating the policy did not apply to the daycare center’s van. According to the insurer, the man’s insurance policy explicitly excluded liability arising from any vehicle that was being used in the course of a driver’s employment and any vehicle other than that covered by the policy that was “furnished or available” for a driver’s regular use.

Supreme Court of Florida Holds Deceased Worker’s Estate Cannot Recover Tort Judgment from Employer’s Insurance Company

Published on: December 10, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In Morales v. Zenith Ins. Co., a Florida man was tragically killed in a workplace accident. Following the fatal incident, the decedent’s wife agreed to a workers’ compensation settlement with the man’s employer and the employer’s insurance company. The wife also signed a release stating the settlement was the sole remedy for which the insurer would provide coverage to the employer.

Prior to the workers’ compensation settlement, the man’s estate filed a wrongful death action against the man’s employer. As a result, a default judgment of nearly $10 million was entered in favor of the estate. After the employer’s insurer refused to pay the judgment, the estate filed a breach of contract lawsuit against the insurance company in a Florida court. The insurer removed the case to the Middle District of Florida and filed a motion for summary judgment. In its motion, the insurer argued that a workers’ compensation exclusion included in the employer’s policy barred the estate from suing the company. The federal court then granted the insurance company’s motion and entered judgment in its favor.

Florida’s Fourth District Discusses Essential Elements of a Settlement Agreement in Tragic Auto Accident Case

Published on: November 20, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In Thompson v. Estate of Maurice, a young man was unfortunately killed while riding as a passenger in an automobile. Following the collision, the decedent’s parents demanded payment from the liability insurance company that provided coverage for the vehicle. The letter included a settlement offer that expired in one month. The insurer responded with a counteroffer that was nearly identical but requested that the young man’s parents sign a release of all claims against the vehicle’s owner and the liability insurer as a condition of settlement. The release was never signed, and no money exchanged hands.

About two years later, the decedent’s parents filed a wrongful death lawsuit against the estate of the individual who was driving the vehicle at the time of the deadly accident and the owner of the car. In their complaint, the decedent’s parents claimed that the driver caused their son’s death by negligently operating the automobile. They also asserted vicarious liability claims against the owner of the car.

$15.8 Million Jury Award Reduced in Wellington Family’s Wrongful Death Case: Wisekal v. Laboratory Corp. of America Holdings

Published on: August 7, 2014 | by Friedman Rodman Frank & Estrada, P.A.

The United States District Court for the Southern District of Florida has overturned a jury’s award of approximately $15.8 million in non-economic damages in a wrongful death lawsuit. In Wisekal v. Laboratory Corp. of America Holdings, a laboratory processed two cancer screening tests for a Wellington woman over the course of two years. Although both tests returned a negative result, the woman went to a hospital emergency room for pain and learned she had a large cancerous tumor. She later died as a result of the cancer, and her estate filed a wrongful death lawsuit against both the laboratory and the cytotechnologist who examined the woman’s laboratory specimen in federal court. Following trial, a jury awarded the woman’s estate over $20 million in economic and non-economic damages. Since the jurors determined the woman was 25 percent at fault for her death, the final award was reduced by one-quarter.

In response to the jury’s multi-million dollar award, the defendants filed a motion for remittitur or a new trial on the issue of damages. When a party to a lawsuit files a motion for remittitur, the party is asking the judge to reduce the amount of a jury’s verdict because it was excessive based upon the facts of the case. The Southern District of Florida first said the evidence offered at trial reasonably supported the jury’s award for lost earnings and other economic damages. Next, the court examined the defendants’ claim that $20 million in non-economic damages such as loss of companionship for the woman’s surviving family members was too high. Although the federal court disagreed with the defendants’ argument that the jury award could only have resulted from passion or prejudice, the Southern District of Florida held that the non-economic damages award was not logically supported by the evidence offered at trial.

Florida law requires that a non-economic damages award must be reasonably related to both the facts of a case and the general trend in similar cases. When determining whether a jury’s award was excessive, a court applying Florida law must determine if it was the result of prejudice or passion, if the jurors ignored any relevant evidence, if the award was derived through speculation and conjecture, if the award was reasonably related to the injured party’s damages suffered, and if reasonable people could have arrived at the same damages award based upon the evidence. Since the jury’s non-economic damages award was excessive when compared to similar wrongful death cases, and there was no evidence offered to support such a large award, the court granted the defendants’ motion for remittitur on the issue of non-economic damages. The Southern District of Florida reduced the non-economic damages in the case to $5 million before the deceased woman’s comparative fault was taken into account. The court also ordered a new trial on the issue of non-economic damages, should the woman’s estate refuse to accept the reduced award.

Florida Appeals Court Affirms Jury Decision in Wrongful Death Case Against Tobacco Companies: Philip Morris USA Inc. v. Buchanan

Published on: July 18, 2014 | by Friedman Rodman Frank & Estrada, P.A.

Florida’s First District Court of Appeals has affirmed a wrongful death judgment entered against two tobacco companies. In Philip Morris USA Inc. v. Buchanan, the personal representative of a deceased man sued both Philip Morris and the Liggett Group over her husband’s wrongful death. After jurors entered judgment against the defendant tobacco companies, the businesses appealed the decision to the First District Court of Appeal.

According to the tobacco companies, the lower court should not have limited their access to cross-examine the man’s wife regarding the brand of cigarettes he smoked at trial. Since the defendant tobacco companies stipulated that the decedent only infrequently smoked other brands of cigarettes, the appeals court found that the trial court appropriately exercised its discretion when it limited cross-examination regarding the matter. The court added that the decision to limit cross-examination related to the issue served to limit confusion. Additionally, since the tobacco companies were permitted to discuss inconsistencies between the woman’s sworn testimony and her other evidentiary statements, Florida’s First District held that cross-examination was not required for impeachment purposes.

Next, the appeals court addressed the defendants’ claim that a particular jury instruction was improperly denied. According to the tobacco companies, the trial court committed error when it refused to provide jurors with a proposed jury instruction on the statute of repose. After stating the proffered instruction for jurors was not an accurate statement of the law, the appellate court dismissed the defendants’ argument. Finally, the Florida court rejected the defendants’ assertion that Florida Supreme Court and other precedent barred the woman’s wrongful death claim and certified that its decision conflicted with an earlier decision entered by Florida’s Fourth District Court of Appeals. In June 2013, however, the Supreme Court of Florida agreed to review that appellate court decision.

Unconscionable Arbitration Agreements for Florida Nursing Homes

Published on: March 27, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case, a healthcare and rehabilitation center appealed a trial court’s order denying its motion to dismiss and compel arbitration. The case arose out of a case in which a wife admitted her husband to the rehabilitation center’s nursing facility in accord with a durable power of attorney he had signed. He lived there for two years. Days after he was discharged, the husband died.

The wife sued as personal representative of his state for violating his nursing home residents’ rights, negligence and wrongful death. The nursing facility moved to compel arbitration. The wife had signed an arbitration agreement when her husband was admitted. Signing the arbitration agreement was a condition of being admitted into the nursing home.

The trial court, however, denied the nursing facility’s motion to compel arbitration. It found that the durable power of attorney did not give the wife authority to sign the arbitration agreement on behalf of her husband. It also found the agreement was substantively unconscionable because the estate didn’t have the ability to pay arbitration costs, and that is was procedurally unconscionable in the way the agreement was presented to the wife.