Wrongful Death

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.

Victory for Medical Malpractice Wrongful Death Claimants

Published on: March 17, 2014 | by Friedman Rodman Frank & Estrada, P.A.

Recently, the Florida Supreme Court issued a major decision regarding statutory caps on non-economic damages in medical malpractice cases. The case arose when a 20-year-old pregnant woman, the dependent of someone in the Air Force, was admitted to a government medical center with severe preeclampsia. The doctors induced labor and she delivered her child vaginally. However, she lost a lot of blood and didn’t deliver the placenta. She went into shock and cardiac arrest, lost consciousness and died.

Through her estate, her parents and her baby’s father sued for wrongful death and medical malpractice against the United States in the United States District Court for the Northern District of Florida. At a bench trial, the court determined that their economic damages were $980,462.30. Their noneconomic damages (items such as pain and suffering) were $2 million. The district court relying upon section 766.118(2), which covers wrongful death noneconomic damages, capped the damages at $1 million.

The plaintiffs appealed to the Eleventh Circuit Court of Appeals, which affirmed the application of the cap. The appellate court ruled there was no controlling precedent and therefore certified four questions of law for the Florida Supreme Court to answer. These questions included whether the cap violated due process under the Florida Constitution, whether it violated the right of access to the courts, whether it violated the right to trial by jury, and whether it violated separation of powers.

Do Parents Have a Duty to Protect Relatives From Their Violent Son?

Published on: February 25, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case, a Florida appellate court considered a tragic shooting incident whereby a couple’s 35-year-old son Paul shot and killed his family members at Thanksgiving. Sixteen family members were in attendance. The couple attended every year, but their son didn’t. In fact, the year before, the host had told the couple he would cancel dinner if they brought Paul.

The reason for this statement was because Paul had a history of violence. He was showing signs of aggression and chronic violence in his early 20s. He threatened his immediate and extended family. Two years later he was deemed legally disabled.

He lived with his parents from 1994-2006. During that time, the police were called 10 times based on his threats of violence and refusal to take his prescribed psychotropic medication. He was involuntarily committed at one point and at another, shot himself in the chest. Paul had a grudge against his uncle and sisters. He was violent towards his sisters and she had once gotten a restraining order against him. In spite of his issues with threats and firearms, the couple didn’t do anything to prevent him from buying firearms with money they gave him.

Evidence of Drug Use in Florida Wrongful Death Cases

Published on: January 14, 2014 | by Friedman Rodman Frank & Estrada, P.A.

Tragically, many car accident fatalities occur because of drug or alcohol intoxication. Under what circumstances does evidence of drug or alcohol intoxication stay out of a trial proceeding? A recent case illustrates how a defendant can keep evidence of intoxication from the jury by admitting liability.

The case arose when a city employee was standing at the rear of a city vehicle parked in a median area of the road, and was hit by a truck driver who crashed into him. The employee died immediately.

The deceased’s representative sued the other driver for wrongful death and asked the court for compensatory damages for the man’s widow and both compensatory and punitive damages for the estate. The final judgment against the other driver was more than $6 million. The other driver/defendant appealed.

Is There Liability for Freak Accidents in Florida?

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

In a 2010 case, the appellate court considered whether summary judgment was proper in a wrongful death lawsuit. The case arose when a man drowned while a floating dock was being installed at property owned by Walt Disney World. He was employed by a water sports concession located at a Disney resort. His company contracted with a plumbing and heating company to install a floating dock system to facilitate personal watercraft rentals.

The water sports concession wasn’t familiar with assembly of a floating dock system. Accordingly, a plumbing company employee agreed to oversee the installation and show the water sports employees how to do it.

The man agreed to have delivery of certain sections to the resort. The entire dock could have been assembled on dry land, but not all of the pieces arrived at the same time. The plumbing supervisor and water sports employees assembled those parts that were available. A Disney ferry put it out on the lake. The plumbing supervisor’s plan was to add the two missing sections with a special tool that wouldn’t require anybody to go in the water.

Security Guard Negligence in Florida

Published on: December 6, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Interesting questions are presented in cases in which a security guard is negligent, leading to personal injuries or even death. Is the guard responsible for intentional misconduct by another person? In a recent case, a woman was murdered at her home in a gated community by a burglar. The community was a six-street neighborhood that was surrounded by a golf course and a lake. Guards were stationed there 24-hours a day. While one guard stayed at the guardhouse, the other moved around the property in a vehicle.

At the time of the murder, the patrolling guard was supposed to be continuously patrolling, checking into various checkpoints to show he was patrolling appropriately. The police caught the murderer. In his sworn confession, he said he had entered the community by bicycle on an open pedestrian path. He didn’t know the victim before that night. He saw there was a small open window and cut the screen from that window. Although the screen had security wires, the alarm company had improperly installed the alarm, so the alarm didn’t go off.

The murderer was stealing credit cards and other things, and ran into the victim. He strangled her. The estate and the alarm company settled. At trial, the estate proceeded against the security service. The estate’s expert testified that “continuously” meant that the guard should have been moving continually. The guard had failed to do that based on data from the checkpoints.

Florida School Not Liable for Personal Injuries After School Hours

Published on: November 18, 2013 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case an appellate court reviewed a high school’s liability in the death of a student and catastrophic injury of another after consuming excessive alcohol at a private home.

The case arose when students received copies of a somewhat unintelligible invitation to an end-of-the-year party at a home that was miles away from school. The invitation specified it was for students from that high school only.

The cards had nothing to do with the school, although they referenced it. The morning before the party the principal questioned the two students throwing the party. They told him their parents would at the party. The principal also read an announcement to the student body that implied it might squelch the party.

Do Rental Car Companies in Florida Have a Duty to Investigate?

Published on: November 11, 2013 | by Friedman Rodman Frank & Estrada, P.A.

What happens if a rental car company rents a car to a driver who proves to drive negligent and hurts or kills someone? In a recent appellate case, a man was killed in Florida while riding in a 2008 Corvette that was rented from Hertz and driven by the defendant. A witness saw the defendant hit another vehicle after swerving through traffic at a high speed. When Hertz rented the man the car, it did not know that his driver’s license had been suspended after he received a speeding ticket in another state.

The man’s representative filed a wrongful death action against Hertz, alleging that it was negligent in not affirmatively investigating and learning of the suspended driver’s license pursuant to a statute. The trial court dismissed the complaint on the grounds that the Florida Statutes required Hertz to inspect the license to verify the signature and nothing more.

The man’s representative amended the complaint alleging general negligence rather than a statutory violation. However, the representative still wanted to use the statutory violation as evidence of proximate causation. In a general negligence action, a plaintiff must show (1) a duty, (2) breach of that duty, (3) actual causation, (4) proximate causation and (5) damages. “Proximate causation” means “legal cause.” Something may be part of a chain of events that leads to an accident, but still not be the “legal cause” or “proximate cause” of an accident.

Religious Arbitration Agreement Upheld in Florida Wrongful Death Case

Published on: October 23, 2013 | by Friedman Rodman Frank & Estrada, P.A.

An interesting wrongful death case regarding the validity and applicability of arbitration agreements arose recently when a nineteen-year-old enrolled at Teen Challenge’s substance abuse facility in Florida. He signed an arbitration agreement that stated he accepted the Bible as the word of God and that God wanted the parties to resolve their disputes in accord with certain Biblical principles in private meetings.

The agreement provided that if they weren’t resolved in private meetings, they would be resolved by biblically based mediation or, if not resolved there, in legally binding arbitration. He also signed a waiver that stated he understood Teen Challenge was an evangelical ministry and that he would therefore have to attend Christian religious activities.

Two months later, he broke the rules and his mother was told he would be discharged. After that, he was put in jail due to a probation violation in Tennessee where his mother lived. The Tennessee authorities permitted him to be released to try Teen Challenge again.

Settlement Offers in Florida

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

Often plaintiffs must work towards settlement not only with a defense attorney, but also an insurer. One strategic area during a lawsuit is settlement offers. There can be an advantage to trying to settle early. However, offers must be extremely specific. This is why it is critical to secure the help of an experienced attorney before communicating with the insurer for the other side.

In a recent case, a defendant appealed the final judgment entered in favor of a wrongful death plaintiff. The plaintiff and her minor child were in a car when they were rear-ended by the defendant’s car. The impact pushed the plaintiff’s car into a moving train. This caused severe injuries to the plaintiff and killed her son.

The plaintiff’s attorney contacted the defendant’s insurer and offered to settle with the policy limits. The offer had a time limit for accepting and included a reference to restrictions on the nature of the release. The insurer responded to the offer, including some draft checks and proposed releases. The plaintiff’s attorney told the insurer that the releases violated the terms of the offer and that it would therefore consider the response a rejection and counteroffer.