South Florida Personal Injury Lawyers Blog

Excess Judgments Under Florida Bad-Faith Insurance Laws

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

Under Florida law, those who bring a bad-faith claim against an insurance company for failing to settle a lawsuit must prove various elements. One element involves establishing that the insurance company’s conduct caused the insured’s loss. There are different ways to demonstrate this requisite caution element. One such method is by providing evidence that the insured experienced an “excess judgment” because of the company’s actions.

Typically, excess judgments must exist for the court to have jurisdiction to hear a Florida bad faith insurance claim. Excess judgments refer to instances when a judgment in a case is for a higher amount than the insured party has under their insurance policy limit. Excess judgments leave the at-fault party personally liable to the victim for their losses in these situations. Further, it fails to fully compensate the injury victim for damages because individual parties often lack the funds to pay a claim.

Bad faith arises when the insurance company owes the insured a duty, and the company breaches the duty, and because of the breach, an injury occurs. While Florida law requires insurance companies to settle a case where a reasonably prudent person would do so, mere negligence does not amount to bad faith.

Florida Court Issues Personal Injury Opinion Discussing Aggravation of Existing Injuries

Published on: April 8, 2022 | by Friedman Rodman Frank & Estrada, P.A.

Preexisting injury and conditions refer to a person’s medical state before an accident they are making a claim about. In the context of a Florida accident, victims may face challenges recovering compensation after they suffer aggravation to an existing injury. At-fault parties may refute liability and responsibility for damages by arguing that the victim’s injuries were unrelated to the accident.

Accident victims with preexisting conditions should consult with an attorney to ensure that they recover the compensation they deserve. An attorney can collect relevant evidence and present a compelling case for damages. The failure to gather relevant evidence such as medical records, expert witness testimony, and employment records may limit the amount a person can recover.

For example, a Florida district court recently issued a decision in an appeal involving a Florida uninsured motorist claim. According to the record, the injury victim suffered injuries in a collision between her car and another vehicle. She contended that the accident and her injuries were caused by an uninsured/underinsured motorist (“UM”). The insurance company appealed the trial court’s order that allowed the victim to argue and present evidence for aggravation of preexisting injuries.

Florida Theme Park Injuries and Fatalities

Published on: April 8, 2022 | by Friedman Rodman Frank & Estrada, P.A.

Florida is an international hub for some of the world’s most well-known amusement parks. While various governmental entities issue guidance and regulations regarding amusement park safety, many rides pose inherent risks. Although most amusement park-goers sign release of liability waivers in the event of an accident or injury, these waivers are not iron-clad. In some instances, injury victims may still pursue claims against a negligent amusement park.

Recently, a 14-year-old boy fell to his death at Florida’s ICON Park. The teenager fell from a FreeFall drop tower ride, which transports riders up and then drops them about 400 feet at speeds exceeding 75 mph. According to authorities, the 14-year-old weighed more than 300 pounds and stood nearly 6-feet, 5-inches tall. The ride’s operations manual states that the maximum passenger weight is about 287 pounds. The manual further states that ride operators should use care when seating large guests. Operators should confirm that the passenger fits within the contours of the seat and brackets. In this case, the employee operating the ride at the time of the incident completed training at the end of February.

Moreover, safety officials visually inspected the ride in a “non-destructive test.” Reports indicate the ride met Florida’s qualifications. The Florida Department of Agriculture and Consumer Services is working with the sheriff’s office to investigate the incident and make changes to protect amusement park patrons.

The “Going and Coming” Rule Under Florida Workers’ Compensation Law

Published on: March 31, 2022 | by Friedman Rodman Frank & Estrada, P.A.

The District Court of Appeal recently issued an opinion stemming from an employee’s appeal of his Florida workers’ compensation claim. The employee worked as a baggage handler for a major airline when the accident occurred. On the day of the incident, the claimant clocked out walked through security toward a parking lot shuttle bus stop when he injured his calf stepping off of the curb. The claimant reported the accident to his superiors and visited an on-site medical clinic the next day. The clinic workers provided the claimant with pain medications, crutches, a boot, and a prescription for an MRI. After his MRI, providers referred him to an orthopedist. His employer and later the Judge of Compensation Claims (JCC) denied his claim for benefits.

On appeal, amongst several issues, the claimant argued that the JCC improperly applied the “going or coming” statute under § 440.092(2). The statute typically precludes workers’ compensation benefits for injuries while an employee is commuting to or from work. Under the law, injuries occurring while going or coming to work are not an injury “arising in and out of” or under the “course and scope of” employment. This preclusion applies whether or not the employer-provided transportation if transportation was available for exclusive personal use by the employee. An exception applies if the employee was on a “special mission” for the employer.

The employee argues that the statute does not apply in his case. Instead, he cites the premises rule. Under the premises rule, an employee with fixed hours and place of work who suffers injuries while going to or from work is in the course of employment if it happened on the employer’s premises. He contends that the injury occurred while traveling the area between two parts of his employer’s premises. In support, he purports that the public areas between his job site and the parking lot are part of the regularly used premises of the employer.

Florida Assault and Battery Claims Under the Civil System

Published on: March 31, 2022 | by Friedman Rodman Frank & Estrada, P.A.

In some instances, those who suffer injuries from an intentional act may seek financial compensation from their attackers. Under Florida law, assault and battery victims may file a civil claim against the at-fault party similar to victims of traffic accidents, trip-and-falls, or other accidents in which they suffer harm. These claims are unique in that, unlike many other civil claims, these cases involve an intentional act by the assailant. Florida courts address assault and battery as separate claims, even though they often co-occur.

Assault refers to an intentional unlawful threat to physically hurt another. The threat can stem from the threatening party’s apparent ability to act upon their actions, words, or combination. Aggravated assault tends to involve using a deadly weapon to instill fear in the victim. Deadly weapons can be any mechanism that can inflict serious bodily injury upon a victim, such as a gun, knife, taser, or similar item.

These cases hinge on the claimant’s ability to establish that the threatening party demonstrated a clear intent to inflict harm. An attorney can assist claimants in gathering evidence and preparing a compelling case that illustrates that the threatening party instilled fear. Recently, the Third District Court of Appeals issued an opinion in an appeal of a Florida civil assault claim. The relevant background explains that a couple lived together in an apartment complex when they met with the property manager to discuss renewing the lease in the primary tenant’s name. A disagreement ensued, and the plaintiffs contended that the property manager pulled out a gun and placed it on a table in front of the claimants explaining that he would be vacating their lease.

Florida Bad Faith Insurance Dispute Over Delayed Appraisal Awards

Published on: March 25, 2022 | by Friedman Rodman Frank & Estrada, P.A.

The District Court of Appeal issued an opinion in favor of a homeowner’s in a Florida bad faith insurance dispute. According to the record, lightning struck the homeowner’s residence in July 2009, causing serious property damage. The owner filed a claim with his insurance provider, who determined the amount of loss and made payments over eight years. However, in 2017 the homeowner disputed the paid amount, and the insurance company invoked the appraisal provision. While the appraisal process was ongoing, the owner filed a notice of his intent to file a bad faith claim against the insurance company. Amongst several claims, the insurance company argued that the sixty-day cure period was tolled pending the appraisal award and payment cured the bad faith allegations.

Under Florida law, insurance companies maintain two distinct duties: contractual and statutory. As such, first, they must timely evaluate and pay benefits. In most cases, the insurance policy conditions dictate how the parties must proceed before an insurer fulfills a claim. For example, as is the case in this situation, the provider might maintain the right to invoke an appraisal.

Second, they must act in reasonably good faith in evaluating claims. If a party experiences damages by an insurance company’s failure to comply, they may pursue civil action against the company.

Workers’ Compensation Benefits Under Florida’s Heart-Lung Bill

Published on: March 25, 2022 | by Friedman Rodman Frank & Estrada, P.A.

Florida Statute 112.18, otherwise known as the Heart-Lung Bill (HLB), provides protections to first responders who develop certain cardiovascular conditions at work. The HLB protects first responders such as law enforcement officers, correctional officers, and firefighters who experience injuries or illnesses related to tuberculosis, high blood pressure, or heart disease during their employment. The HLB presumes that if the Claimant develops one of these conditions during their employment, as long as it was not a pre-existing condition, it was a direct consequence of their employment.

However, the potential recipient must meet the four requirements of the HLB. The presumption requires claimants to:

Fall into the protected class,

Florida Insurance Disputes Stemming from Storm Damage

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

The District Court of Appeal in Florida issued an opinion in an appeal stemming from an insurance dispute between an insurance company and the insured. The insurance company appealed a final judgment against them after a lower court found that the insured’s material breach of the contract was immaterial.

According to the record, storm damage prompted the homeowner to file a claim with the insurance company. The insurance company argued that the policy bars the homeowner from filing suit because he failed to comply with the three post-loss conditions in the insurance contract. Specifically, the violations include the homeowners’:

Failure to provide the insurance company with prompt notice of the loss.

The Recent Surge in Florida Truck Accidents

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

While the trucking industry throughout the country is consistently growing, the increasing presence of the online marketplace in combination with the pandemic has resulted in significant truck transport. Although trucking transport is a preferable way of shipping goods, the demand has brought on a surge in Florida trucking accidents. There has been an over 50% rise in truck accidents over the last decade, and various agencies that study truck accident statistics report that truck accidents will likely become the fifth largest cause of death in the country. Currently, nearly 75% of fatal vehicle accidents involve a large truck.

For instance, an Associated Press article described a harrowing, deadly Florida truck accident. According to reports, a tractor-trailer slammed into a vehicle on U.S. 27. The vehicle was carrying two adults and seven children. A teenage boy in the vehicle died, and six children suffered injuries. The truck driver sustained minor injuries in the accident.

Statistics by the Federal Motor Carrier Safety Administration (FMCSA) reports that Florida is one of ten states that comprise half of all deadly truck accidents in the country every year. While truck accidents occur all over the state, certain areas such as Ft. Myers, Sarasota, Bradenton, Lakeland, Auburndale, and Naples have a higher rate of truck accidents. Moreover, the research suggests that driver error was responsible for over 90% of truck accidents. At the same time, road conditions and defective vehicles account for around 6% of truck accidents.

Understanding the Difference Between Criminal and Civil Claims Following a Florida Accident

Published on: March 9, 2022 | by Friedman Rodman Frank & Estrada, P.A.

Sometimes, when an accident takes place, the at-fault party faces criminal charges. However, you may not know that even if the at-fault party is guilty of those criminal charges, you may not receive compensation as the victim of the accident unless you file a separate civil lawsuit successively. Understanding this distinction is crucial, as it directly affects your ability to recover monetarily following a major accident.

According to a recent local news report, a driver who caused an accident that left one individual dead and eight injured likely will not be facing criminal charges. Local police reported that the 75-year-old woman was attempting to parallel park when she suddenly accelerated in reverse, ran over a curb, and hit a parked car before crashing her Bentley into a table with five diners and nearby pedestrians. A 67-year-old man died and eight individuals were injured, but local police reported that there were no signs that the woman was impaired and she will likely only be facing traffic violations. The accident remains under investigation.

Although the woman who caused this Florida accident may not be facing any criminal charges, it does not mean that those who were injured and the survivors of the deceased individual cannot file a civil suit involving personal injury claims separately. Sometimes, when a state’s criminal laws do not hold an at-fault party responsible, suing them for monetary damages is the best way to recover following an accident.