South Florida Personal Injury Lawyers Blog

Evidence of Medicare Benefits in Florida Personal Injury Lawsuit

Published on: May 26, 2022 | by Friedman Rodman Frank & Estrada, P.A.

The Supreme Court of Florida recently approved the district court’s decision in a negligence case related to a slip-and-fall. The plaintiff sought to recover past medical expenses due to the fall on the defendant’s property. A jury awarded the plaintiff $34,642 for past medical expenses. On appeal, the plaintiff argued that the trial court abused its discretion in prohibiting her from introducing evidence of the gross amount of her past medical expenses and limiting her to raising only the discounted amounts paid by Medicare.

In analyzing the case, the Court addressed the holding in Joerg v. State Farm Mutual Automobile Insurance Co., 176 So. 3d 1247 (Fla. 2015). In that case, the Court concluded that future Medicare benefits are both uncertain and a liability due to the right of reimbursement that Medicare retains. The Court held that Joerg is not relevant because it set the scope of its holding to evidence concerning future Medicare benefits, which is not in dispute in the current case.

Recent case law from Florida highlights the issues many plaintiffs encounter when trying to recover maximum compensation for their injuries. Generally, Florida’s collateral source rule hinders juries from hearing evidence of a party’s payments from third-party payers. However, a narrow exception carved out in Florida Physician’s Insurance Reciprocal v. Stanley caused significant confusion amongst courts. Further, in Joerg v. State Farm Mutual Automobile Insurance Co., the Court reasoned that where Medicare benefits subjects beneficiaries to CMS’ enforcement tools, including demands for reimbursement, receiving Medicare constitutes a “serious liability.” The Florida Supreme Court also noted that Medicare benefits are too speculative to serve as a basis to reduce a claimant’s future medical damages.

Florida Cruise Ship Slip and Fall Accidents

Published on: May 17, 2022 | by Friedman Rodman Frank & Estrada, P.A.

Slip-and-falls and trip–and-falls are common occurrences on cruise ships and cause hundreds of injuries every year. Floridians who slip and fall or suffer another injury upon a cruise ship may bring a negligence or wrongful death claim against the responsible party. While these cases seem straightforward, they are rarely cut-and-dry, and injury victims must meet strict evidentiary and procedural requirements.

Recently, the Eleventh Circuit addressed an appeal from a Florida district court stemming from injuries a cruise ship passenger suffered after slipping on a puddle of water. According to the record, the woman slipped on a puddle and broke her hip shortly after boarding the cruise ship. She filed a complaint against the cruise ship for negligence, and the district court found in favor of the cruise ship. The lower court found that the cruise ship lacked a duty to protect the woman because its crewmembers did not have actual or constructive notice of the puddle that caused her fall.

Generally, in Florida, maritime law governs the liability of a cruise ship for a passenger’s slip-and-fall. In these cases, the plaintiff must make four primary showings to prevail:

Liability for Florida Cruise Ship Assaults

Published on: May 17, 2022 | by Friedman Rodman Frank & Estrada, P.A.

Those who board a cruise ship for work or vacation have the right to expect a safe, healthy environment with reasonable accommodations. Cruise ship companies and their crew have a duty to ensure safe transportation, including maintaining safe premises. Further, cruise ships departing from Florida ports are considered common carriers under the Shipping Act of 1984. Common carriers owe their passengers a heightened duty of care to protect them from harm and ensure that they arrive at their destinations safely. Companies that fail to meet this standard may be liable under Florida’s maritime and personal injury laws.

Recently, the Eleventh Circuit addressed a case where a cruise ship passenger and one of his friends assaulted another passenger. The court was tasked with determining what duty the cruise company owed to the assault victim in light of maritime law. In this case, the Plaintiff alleged that the cruise line was negligent because it failed to:

Reasonably and properly train security personnel.

Exception to Florida’s “Going or Coming” Workers’ Compensation Exclusion

Published on: May 10, 2022 | by Friedman Rodman Frank & Estrada, P.A.

As offices begin a return-to-work plan, Florida is set to experience an influx of daily commuters. Although traveling to work is a necessary part of many people’s lives, daily travel can pose risks to commuters. Those who commute the same way to work every day often feel a sense of security and may ignore their surroundings. However, commuters may merely be victims of another reckless or negligent party in some cases.

Workers’ Compensation

In Florida, employers conducting work in the state must provide workers’ compensation insurance to their employees. The specific coverage requirements vary depending on the industry or organization and the number of employees. Some business owners may opt-out of the insurance coverage if they meet the exemption requirements.

The law applies to all accidental injuries and occupational conditions arising out of and in the course and scope of employment. However, the law does not cover certain mental or nervous injuries related to stress or fright. Further, pain and suffering damages are not compensable in Florida.

Mandatory Arbitration Provisions in Florida Nursing Home Disputes

Published on: May 10, 2022 | by Friedman Rodman Frank & Estrada, P.A.

An appeals court recently addressed an arbitration agreement contained in a residency agreement on behalf of a Florida assisted living resident. The assisted living facility (“ALF) appealed a trial court’s order denying their motions to dismiss and to compel arbitration under an arbitration agreement.

The case arose when the resident’s estate (“Estate”) filed a complaint against the ALF for injuries the resident sustained while residing at the facility. The Estate’s complaint included causes of action for negligence, wrongful death, breach of fiduciary duty, civil conspiracy and violations of Florida’s Deceptive and Unfair Trade Practices Act. In response, the ALF filed motions to compel arbitration according to the arbitration agreement contained in the residency agreement, which was signed by the resident’s attorney-in-fact. The trial court denied the motions finding that the agreement was unconscionable and unenforceable.

The appeals court explained that in Florida, arbitration is mandated when:

What You Need to Know Before Filing a Florida Personal Injury Claim

Published on: May 1, 2022 | by Friedman Rodman Frank & Estrada, P.A.

Florida maintains statutes that limit the amount of time claimants have to file their civil lawsuits in court. The statute of limitations for personal injury cases is generally four years from the date of the incident. If a claimant fails to file their claim within this time, the court will most likely dismiss the lawsuit. However, depending on the case’s unique circumstances, the statute of limitations may be shorter or longer.

For instance, a Florida appeals court recently heard a plaintiff’s appeal seeking a review of a final judgment dismissing her complaint against the defendant. The plaintiff, a resident of an assisted living facility, filed a complaint alleging that the facility was negligent in allowing a dangerous condition to exist and failing to train employees. The case arose following an incident where an employee placed a food tray in front of a resident’s door. The cup on the tray spilled and created a puddle that the plaintiff slipped on, causing her to experience serious injuries.

The defendant moved to dismiss, arguing that the Assisted Living Facilities Act (“ALFA”) governs the claim, and the plaintiff failed to comply with ALFA’s presuit requirements. The plaintiff claimed that her suit was not brought under ALFA because ALFA only covers abuse, neglect, or deficient care claims. She contended that her claim arose from common-law negligence.

The Presuit Requirements for a Florida Medical Negligence Lawsuit

Published on: May 1, 2022 | by Friedman Rodman Frank & Estrada, P.A.

Florida medical malpractice claims require claimants to demonstrate that their medical provider made an error that fell below the “prevailing professional standard of care.” This standard of care varies depending on the provider’s specific care, skill, surrounding circumstances and incident. Thus, courts view the prevailing standard of care in light of the unique circumstances of the particular situation. Further, medical malpractice claims require claimants to establish causation. Even if a provider’s standard of care fell below the prevailing standard, claimants must still prove that the mistake was not inconsequential.

Medical malpractice can stem from a variety of situations. Under Florida law, misdiagnosis, surgical errors, failure to treat, anesthesia errors, medication errors, and specialist malpractice can precipitate a medical malpractice lawsuit. However, successfully recovering damages requires strict adherence to Florida’s various medical malpractice procedural and evidentiary laws.

The Supreme Court of Florida recently considered the statutory presuit notice requirement under section 766.106. In this case, the plaintiff mailed the notice before the expiration of the limitations period; however, the defendant did not receive the notice until after the period would have expired, absent tolling. At issue is whether the statute of limitations is tolled upon the claimant’s mailing of the presuit notice of intent to begin litigation.

Vicarious Liability for Florida Loaner Vehicle Accidents

Published on: April 23, 2022 | by Friedman Rodman Frank & Estrada, P.A.

Recently, the Eleventh Circuit issued an opinion addressing a Florida car accident involving a loaner vehicle. The defendant owns a car dealership that operates a service department. Under the car dealership’s protocol, the dealership provides customers with loaner vehicles while their cars are undergoing service. The current incident arose following a situation when the defendant’s customer caused an accident while using a loaner vehicle from the dealership. The accident victim filed a lawsuit against the dealership for vicarious liability under Florida’s dangerous instrumentality doctrine.

At issue on appeal was (1) whether the defendant rented or leased the vehicle and (2) whether summary judgment was improper because the defendant used conflicting labels for the vehicle. In reviewing the case, the court analyzed the Graves amendment. Under the Graves Amendment, generally, a motor vehicle owner who rents or leases the vehicle to a person shall not be liable under the law for harm that results from the use, operation, or possession of the vehicle during the rental period if the owner is engaged in the trade or business of renting or leasing motor vehicles; and (2) there is no negligence or criminal wrongdoing on the part of the owner.

The plaintiff argued that summary judgment in favor of the defendant was improper because the agreement referred to the vehicle as both a “rental” and a “loaner .”Further, the plaintiff argued that the agreement did not contain consideration because there was no payment of money to the loaner. The court first held that the consideration in the agreement was that the driver agreed to bring their car and pay for repairs in exchange for the use of a loaner vehicle. Second, the court further held that whatever label the defendant happened to assign to the car, be it a “loaner” or “rental,” did not control. Instead, the substance of the transaction, not the labels, controls the transaction. Thus, the court held that the defendant enjoyed the protection of the Graves Amendment.

Proof of Loss Requirement for Florida Home Insurance Claims

Published on: April 23, 2022 | by Friedman Rodman Frank & Estrada, P.A.

Florida insurance companies review thousands of property damages claims a year. In an effort to expedite claims, companies require claimants to abide by various requirements. Many companies enforce a requirement to provide “sworn proof of loss.” Insurance companies claim that requirement allows them to assess claims quickly and fairly. Issues often arise when a claimant suffers a loss but fails to abide by the proof of loss requirement.

Several Florida cases address lawsuits involving a claimant’s failure to provide a sworn proof of loss. Together the cases hold that if a claimant files a lawsuit against an insurance company before submitting a required sworn proof of loss, the company is relieved of its duties under the policy, thus barring the lawsuit. However, if the claimant submits the proof of loss untimely, but before filing a lawsuit, courts will permit the lawsuits and determine whether the delay prejudiced the company.

Recently, a Florida appeals court issued an opinion addressing a case involving an untimely sworn proof of loss. The homeowner purchased an insurance policy from the company in 2017. A condition of the policy was that the insurance company had “no duty to provide coverage under this policy if the failure to comply with the following duties is prejudicial to us.” The homeowner appealed the lower court’s summary judgment ruling in favor of her home insurance company. At issue is a policy that requires the claimant to send a sworn proof of loss to the company within sixty days of the company’s request.

How Comparative Negligence Affects Your Pedestrian Accident Claim

Published on: April 16, 2022 | by Friedman Rodman Frank & Estrada, P.A.

Florida pedestrian accidents are a serious public safety concern for all road users. These accidents can result in fatalities and severe injuries that require lifelong care. The National Highway Traffic Safety Administration (“NHTSA”) studied pedestrian accidents to address these safety concerns and minimize serious injuries. The study defines a pedestrian as any “person on foot, walking, running, jogging, hiking, sitting, or lying down .”Key findings of the study revealed that Florida was in the top three states with the highest number of pedestrian fatalities. These harrowing statistics highlight the importance of pedestrian and driver safety.

The study also found that pedestrian deaths account for about 17 percent of all traffic fatalities and 3 percent of all people who suffer injuries in traffic crashes. Further, alcohol involvement for the driver or pedestrian was reported in nearly 50 percent of fatal pedestrian crashes. Finally, hit-and-run accidents account for one of every five pedestrian fatalities.

Recently, authorities reported on a fatal Florida pedestrian accident. According to the crash report, a driver was traveling east when he hit a man crossing the road at an unmarked point. Generally, pedestrians have the right-of-way when moving along a marked or unmarked crosswalk in Florida. However, if a traffic signal alerts the pedestrian to wait to cross, they do not have the right-of-way until the sign indicates.