South Florida Personal Injury Lawyers Blog

Court Addresses Arbitration Clause in Florida Amusement Park Premises Liability Lawsuit

Published on: April 27, 2021 | by Friedman Rodman Frank & Estrada, P.A.

An appellate court recently issued an opinion in a Florida premises liability lawsuit against a trampoline park. The case arose when a mother brought a lawsuit against an amusement park company (Park) on behalf of her son, who suffered injuries at the trampoline park. A friend of the family took the woman’s son to a trampoline park for a birthday party. While the boy was at the Park, he suffered serious injuries after falling off of a zipline. The woman filed a negligence lawsuit against the Park, and the Park moved to compel arbitration. The trial court denied the Park’s motion to compel arbitration, and the appeal ensued.

The Park requires ticket holders to sign a release which includes an assumption of risk, waiver of liability, and indemnification agreement. At issue is whether the arbitration clause in this agreement was valid and whether the parties agreed to the clause. The Park contends that because the family friend had “legal physical custody” of the minor, she could sign the arbitration agreement on his behalf. It further argued that any issues surrounding the authority of the woman to sign the agreement were an issue for arbitration, not a trial court.

Under Florida law, arbitration provisions fall under contract law and require contract interpretation. Disputes involving whether a case should proceed to arbitration require a court to look at three elements. These elements include (1) whether a valid written arbitration agreement exists, (2) whether an arbitrable issue is present, and (3) whether the parties waived the right to arbitrate.

Litigating Florida Bad Faith Insurance Disputes

Published on: April 22, 2021 | by Friedman Rodman Frank & Estrada, P.A.

Under Florida’s no-fault insurance laws, drivers must carry Personal Injury Protection (PIP) coverage. This coverage pays a portion of the insured’s medical bills without consideration of fault. However, this protection only covers about 80% of a Florida injury victim’s medical expenses and even less for lost wages. As such, after an accident, Floridians often face an uphill battle in their efforts to recover the damages they deserve. In addition to personal injury lawsuits against the at-fault driver, victims may face challenges dealing with their insurance company. Despite their claims, insurance companies standing hinges on protecting their financial interests. Thus, insurance carriers will often improperly deny or delay claims, leaving victims in a tenuous financial position. Florida injury victims who find themselves in these precarious positions should contact an attorney to resolve these bad faith claims.

Recently, a Florida district court issued an opinion stemming from a dispute between the personal representative of an accident victim and an insurance company. The case arose after the victim suffered fatal injuries in a car accident with a volunteer employee of a not-for-profit corporation. The Estate obtained a judgment against the company the driver worked for; however, the Estate sought additional coverage with the not-for-profit’s insurance carrier. The insurance company asserted an “escape clause” in their coverage where they would not be responsible for incidents where another similar policy covers the not-for-profit. In this instance, the company had a GEICO insurance policy that covered the entity for liability because of the acts or omissions of an insured, such as the employee involved in the accident.

In this insurance dispute, amongst several issues, the Estate argued that the trial court improperly determined that the GEICO policy insured the not-for-profit. Generally, Florida insurance disputes require the court to interpret contracts. There are some general premises that courts use during this process:

Collecting Damages After a Florida Boat Accident

Published on: April 20, 2021 | by Friedman Rodman Frank & Estrada, P.A.

Florida boating accidents tend to present injury victims with more hurdles than a typical motor vehicle accident. In addition to complex state and federal laws, these cases often involve special clauses in insurance policies that restrict recovery. Bodies of water are subject to various regulations; however, despite the presence of these laws, many Floridians eschew these imperative health and safety laws. This disregard of the law can lead to serious and life-long debilitating injuries.

The most common types of Florida boating accidents involving a collision with other vessels or stationary objects, flooding, grounding, and overboard falls. Many activities increase the likelihood of a boating accident. Some activities include alcohol or drug use, speeding, failure to vent, improper lookout, navigation violations, operator inattention or inexperience, and sharp turns.

For instance, the Fourth District Court recently issued an opinion in a case stemming from a Florida boating accident. In that case, the boat owner gave his son permission to operate his boat and allow others to operate the boat. On one occasion, the son took his boat out with three of his friends. All of the individuals on the boat were under 21-years-old; however, they consumed an unknown amount of alcohol. When they were heading back to shore, the owner’s son permitted one of the young women on board to operate the boat. The woman slammed the boat into a channel, and the owner’s son and another passenger were thrown off the boat. At the time of the accident, the boat was insured under the owner’s homeowner’s insurance policy. The passenger filed a lawsuit against the boat’s owner, his son, and the young woman.

Court Hears Case Stemming from Medical Malpractice Occurring on a Florida Cruise Ship

Published on: April 15, 2021 | by Friedman Rodman Frank & Estrada, P.A.

A Florida appeals court recently addressed several issues in an appeal stemming from an injury victim’s medical malpractice lawsuit against a cruise liner. The plaintiff, a Trinidad and Tobago citizen, departed from a Miami port for a five-day cruise. During the trip, the plaintiff became sick and visited the ship’s infirmary. The physicians determined the plaintiff was suffering from a heart attack and admitted him to the ship’s intensive care unit. They decided to refrain from administering certain medications, citing risk concerns.

Instead, they monitored him, and he was transferred to a hospital after porting in Miami. Subsequently, the plaintiff got a pacemaker. He filed a medical malpractice lawsuit against the cruise liner, alleging its medical staff failed to properly diagnose him, treat his illness, and evacuate him from the cruise ship. A jury awarded him $2,000,000 in damages, and the court reduced the damages by $300,000. Both parties appealed several issues, including the defendant’s contention that they were entitled to a new trial.

The defendant argued that they were entitled to a new trial claiming that the lower court erred in their jury instruction. The law provides that cruise lines must treat their patrons with “ordinary reasonable care under the circumstances.” In the context of maritime medical negligence, the law explains that cruise lines medical professionals will not always be held to the same standards as those onshore. In this case, the court instructed jurors that reasonable care is defined by “all relevant surrounding circumstances,” and medical negligence occurs when a physician does something “that a reasonably careful” doctor would not do “under like circumstances” or failing to do something a careful physician would do “under like circumstances.”

Florida Car Accident Lawsuits Involving Complex Insurance Issues

Published on: April 13, 2021 | by Friedman Rodman Frank & Estrada, P.A.

Insurance coverage is a critical resource to motorists and provides many financial protections to those who suffer injuries in a Florida car accident. While insurance companies tout the benefits of their plans to consumers, they simultaneously operate to protect their own financial interests. These for-profit companies have a vested interest in maintaining their financial standing, and they often do so by wrongfully denying personal injury claims. Florida accident victims may face an uphill battle with their dealings with insurance companies. Attorneys play a crucial role in ensuring that injury victims overcome these hurdles and recover the damages they deserve.

There are many ways that insurance companies avoid paying out rightfully due payments to consumers. Although Florida is a no-fault state and injury victims submit claims to their own insurance company, the payments rarely cover the extent of a policyholder’s losses. Typically, claimants only receive around 80% of the total cost of their medical expenses, and the coverage does not include pain and suffering damages. Further, insurance companies may focus on a victim’s pre-existing medical condition to show that the accident is not responsible for the claimant’s injuries. Insurance companies contesting coverage will go as far as to question the claimant’s credibility and elicit evidence to show that the victim is not suffering as much as they say they are.

Although all of these tactics pose issues to clients, the most complex issues arise when insurance companies establish procedural mistakes that may reduce or eliminate a claimant’s damages. Florida Rules of Civil Procedure are a complicated set of procedural and substantive rules that require a thorough understanding of the law. Insurance companies may deny liability by pointing to the statute of limitations, jurisdiction and venue issues, and insufficient notice and pleadings. Courts may dismiss all or part of a victim’s claims because of a single error with any of these requirements.

The Impact of a Recent Supreme Court Product Liability Ruling on Florida Plaintiffs

Published on: April 8, 2021 | by Friedman Rodman Frank & Estrada, P.A.

Recently, the United States Supreme Court issued an opinion unanimously ruling against Ford in a product liability lawsuit. The ruling will significantly impact a Florida product liability accident victim’s ability to file a lawsuit in the state. The case arose when a woman died when her vehicle’s tread separated, and the car spun and rolled into a ditch. The other claim involved a passenger who suffered brain damage when the vehicle’s airbag failed to deploy. In response to the plaintiffs’ lawsuits, Ford argued that the states hearing the cases did not maintain jurisdiction because the cars in the incident were not designed, manufactured or initially sold in the state. The auto manufacturer maintained that allowing the cases to be heard in those forums upended their ability to know where and under what circumstances accident victims may sue them.

Historically, Florida product liability accident victims face challenges in establishing where to sue. Generally, Florida plaintiffs cannot sue a negligent company in any state that the plaintiff chooses. The law provides that plaintiffs must establish that the Court has jurisdiction over the case. Jurisdiction inquiries typically involve examining whether the company maintains “minimum contacts” with Florida and if they “purposefully availed” themselves of the state’s privileges. Courts will also look to whether hearing a lawsuit in the state comports with theories of “fair play and substantial justice.” These analyses are fact-specific and require the experience of an attorney well-versed in these complex jurisdictional issues.

In the recent case, the Supreme Court Justices opined that Ford purposefully availed itself of the privileges of conducting activities in both states involved in the lawsuit. The law does not require plaintiffs to establish a causal link between where the company sold the car and where they designed or manufactured it. Specific jurisdiction occurs in situations when a company encourages a market for a product in the forum state. In this case, the automaker advertises and markets its products in the forum states and cultivates relationships between the vehicle owners. The Court found that the defendant systemically fostered a relationship between consumers and the vehicles involved in the accidents. As such, there is a relationship between Ford, the states, and the litigation. This finding will undoubtedly result in a drastic change in the legal landscape regarding product liability lawsuits involving vehicles.

Florida Paraguard IUD Injuries and Lawsuits

Published on: April 6, 2021 | by Friedman Rodman Frank & Estrada, P.A.

Contraceptives, such as intrauterine devices (IUD), undoubtedly provide women and families with life-changing benefits. However, in some cases, users may suffer severe and adverse side effects from these devices. Those who suffer injuries because of a defective medical device should contact a Florida products liability attorney to discuss their rights and remedies. In some cases, a person’s unique biological makeup may make them susceptible to side effects. However, in other cases, a manufacturing or design defect may make these medical devices unreasonably dangerous.

IUDs were introduced into the market in the 1950s, when the demand for effective birth control became more apparent. While there have been many advances to these devices since that time, there have also been significant injuries and lawsuits linked to these products. The most recent IUD lawsuit involves the Paraguard. According to consumers and medical providers, the plastic prongs at the end of the device become brittle over time and may snap off and become embedded and pierce the uterus. The design flaw has resulted in a wave of new IUD lawsuits throughout the country.

The majority of lawsuits associated with the Paraguard allege design defects, manufacturing defects, failure to warn claims, and negligence on the part of the manufacturers. Claimants argue that they had to undergo an invasive procedure to remove the arms of the device. Some women had to undergo hysteroscopies, laparoscopies, and even hysterectomies. In cases where surgeons could not retrieve the pieces, women suffered severe bleeding, spotting, pelvic inflammatory disease, infections, organ damage, and infertility. Despite these incidents and lawsuits, the device remains on the market. The manufacturers recalled one batch of devices related to sterility and not the design defect.

The Role of a Florida Personal Injury Attorney in Securing a Settlement Agreement

Published on: March 29, 2021 | by Friedman Rodman Frank & Estrada, P.A.

After an accident, the at-fault party may be held liable for their role in the victim’s damages and losses. In many cases, these claims do not proceed to trial and instead get resolved through alternative dispute resolution (ADR) methods. Some common forms of ADR are arbitration, mediation, and settlement discussions. Although similar to a trial, victims can proceed without counsel, the results in these situations tend to be less favorable towards claimants. Attorneys play a critical role during every stage of a Florida personal injury lawsuit and can help claimants recover the damages they deserve.

Settlement agreements occur when the claimant and opposing party agree to settle the claims for payment. These agreements usually require the claimant to halt all legal proceedings related to the incident in exchange for the opposing party’s payment. These agreements release the opposing party without the requirement that they admit fault. However, it is essential to note that a court may overturn the settlement agreement if it is defective. A defective settlement agreement is made under duress, fraud, mutual mistake, or misrepresentation. Further, in some situations, a judge may not accept a settlement agreement.

The binding and complex nature of these agreements elucidates the importance of a skilled and experienced attorney during settlement proceedings. In many situations, insurance companies draft and present settlement agreements. As such, these agreements inherently protect the opposing party or insurance company over the claimant. Additionally, the terms of the agreement may include clauses that prohibit the claimant from pursuing claims against third-parties. Settlement agreements require a thorough and comprehensive understanding of the interplay between various areas of the law.

The Difficulties Presented by Florida Chain Reaction Car Accidents

Published on: March 25, 2021 | by Friedman Rodman Frank & Estrada, P.A.

Whether it’s just a small fender bender or a serious crash that stops traffic for hours, car accidents are usually an extremely stressful event for everyone involved. When car accidents involve multiple vehicles and a series of collisions, however, the stress and danger of the situation are amplified. These types of collisions, otherwise known as Florida chain-reaction car accidents, occur when they involve three or more vehicles and can often have devastating consequences.

In a recent news article, a deadly multi-vehicle truck accident shut down a major Florida highway. The collision involved a rolled-over cement truck and several other trucks along a significant stretch of the road. According to local authorities, there is at least one confirmed death following the accident.

In Florida, chain reaction accidents are all too common. Following these collisions, figuring out how the accident actually took place is rarely simple or straightforward. If there were multiple drivers involved, it immediately becomes complicated as parties try to determine who hit who and what was the actual cause of the accident. These determinations are often messy and may require a professional accident reconstruction expert or team to assess the issue or conduct an investigation before moving forward.

The Civil Remedy Notice Requirement in a Florida Insurance Bad Faith Lawsuit

Published on: March 22, 2021 | by Friedman Rodman Frank & Estrada, P.A.

After a Florida insurance claim, policyholders may file a first-party claim with their insurance company seeking benefits under the terms of the policy. First-party bad-faith claims occur when a policyholder sues their own insurance provider for unlawful and improper denial or settlement of a claim. Third-party bad faith actions have long been recognized; however, the Legislature enacted Florida Statute §624.155, to address first-party causes of action. Courts will evaluate the totality of the circumstances to determine whether an insurance provider has acted in good faith. Some of the common factors they evaluate are whether the insurance company investigated the facts, gave fair consideration to the circumstances, and settled the claim where possible. In cases where the insurance company did not engage in these steps, they may be held liable for their statutory breach.

A claimant may only recover against an insurance company if they meet the statute’s condition precedent. One of the condition precedents is filing a Civil Remedy Notice (CRN) with the Department of Financial Services (DFS). The failure to do meet this requirement may lead to a dismissal of a claimant’s case. For example, recently, an appellate court issued an opinion in a Florida homeowner’s claim against his insurance company. In that case, the insurance company disputed a property owner’s claim regarding water damage to his home. After filing a CRN, the property owner moved forward with a bad faith claim against the insurer. The court dismissed the complaint, reasoning that the plaintiff did not meet the requirements of the CRN.

The CRN statute outlines the specific information that a claimant must include in their notice. In sum, the notice must essentially specifically state the facts and circumstances surrounding the case, and the specific relevant policy language that the insurer is alleged to have breached. In this case, the court found that the plaintiff cited every provision in the insurance claim to meet the specificity requirement. The court found that citing every provision does not meet the specificity standard. The plaintiff argued that the insurance company’s failure to allow him to correct the defect meant that the CRN was sufficient. However, the court ruled that the insurer’s option to return a defective notice is discretionary. Therefore, because he did not meet the specificity standard, the court affirmed the trial court’s dismissal with prejudice.