South Florida Injury Attorneys Blog — Published by South Florida Injury Lawyers

March 31, 2021

Settlement Agreements Following a Florida Car Accident

After a Florida car accident, injury victims often incur significant damages, including expenses related to their medical bills, lost wages and benefits, and pain and suffering. Depending on the accident’s circumstances, victims who wish to recoup these damages have several options, including filing a lawsuit against the responsible party. Despite a popular misconception, an overwhelming number of personal injury lawsuits do not make it to trial. In some cases, the court will dismiss a plaintiff’s case because of a substantive or procedural issue. In other situations, the parties will reach a settlement agreement that negates the need for a lengthy trial.

A settlement agreement is a legally binding contract that the parties reach voluntarily. The plaintiff and defendant or insurance company negotiate the terms of the contract. In return, the plaintiff agrees to cease any further legal action related to the incident. These agreements usually do not require the defendant to admit guilt; instead, it lays out that the defendant is resolving the issue for an agreed-upon amount. In some cases, the payment occurs in one lump sum, and in other cases, the parties may agree to stagger the payments. These agreements can occur at any time during the proceedings; however, they must occur before the jury reaches a verdict.

There are many advantages and disadvantages to signing a settlement agreement; however, an attorney is one of the most indispensable resources during this process. When accident victims attempt to negotiate the terms of a settlement without an experienced attorney, they may find themselves in a detrimental situation. For instance, injury victims may settle for an inadequate amount, the terms may not be beneficial, or the settlement may not be legally binding.

February 24, 2021

Court Addresses How Plaintiffs Must Establish Ordinary Negligence in Recent Personal Injury Lawsuit

by Frankl & Kominsky Injury Lawyers

Recently, an appeals court issued an opinion in a Florida negligence lawsuit stemming from injuries an attorney suffered while visiting a county jail client. As the attorney passed through a security gate at the jail, an inside gate closed on her. The defendants argued that neither the County nor the corrections officer controlling the gate acted negligently. Instead, the defendant argued that the plaintiff tripped on a sensor or the gate malfunctioned. The defendants contended that the malfunction was unrelated to any negligence on their part.

The plaintiff presented testimony explaining how the gates operate and how an officer manually opens the gate to allow visitors to pass through. The officer in charge of the gate on the day of the incident testified that he did not press any buttons while the plaintiff was stepping through. Further, he testified that a safety sensor should have halted the gate. However, the plaintiff failed to present evidence explaining whether a malfunction could cause the gate to close unexpectedly.

Florida’s res ipsa loquitur doctrine, provides injury victims with a “common-sense” inference of negligence where there is a lack of direct proof. In Latin, res ipsa loquitur means “the thing speaks for itself.” However, this only applies when there are other facts consistent with negligence. Courts permit this instruction when a plaintiff establishes that the harmful instrumentality was under the defendant’s exclusive control. Essentially, a plaintiff must meet the initial burden establishing probable negligence. Plaintiffs must understand that the doctrine does not require them to eliminate all possible causes of an accident. Instead, they must merely show that a reasonable person could find that it is more likely than not that negligence caused the accident.

January 20, 2021

Court Addresses Florida’s Evolving Summary Judgment Standard in Car Accident Lawsuit

by Frankl & Kominsky Injury Lawyers

Summary judgment is a crucial procedural tool that has many implications for Florida car accident plaintiffs. The summary judgment stage occurs before trial, during which time either party can ask the court to rule in their favor. Either party can use all of the evidence they obtained during the discovery phase to support their motion. A ruling is only appropriate if the moving party shows there is no genuine issue of material fact.

At the end of 2020, The Florida Supreme Court decided to modify its Civil Procedure Rules. The ruling will go into effect on May 1st, 2021, and will amend Florida’s rules to comport with the federal summary judgment standard. The changes are critically important in Florida accident cases, and plaintiffs must understand how the rules will impact their lawsuits. The Court reasoned that the change would “improve the fairness and efficiency” of the state’s civil justice system.

The court’s opinion arose from a fatal rear-end Florida car accident. The decedent filed a lawsuit against the front-truck driver and his employer. During the trial, the defendant-company, presented video evidence from a dashcam, establishing that its driver did not cause the accident. The defendant moved for summary judgment based on the video, arguing that the video served as undeniable evidence that the driver was not negligent. The trial court granted the defendant’s motion, but the appellate court reversed the trial court’s ruling, based on Florida’s prevailing summary judgment standards.

December 23, 2020

Personal Injury Claims Arising from Florida Head-on Collisions

by Frankl & Kominsky Injury Lawyers

Head-on collisions are one of the most frightening and dangerous types of Florida traffic accidents. Although any accident can lead to severe injuries, head-on collisions often have catastrophic consequences. These accidents are inherently more dangerous because of the direct impact involved when the cars collide, as well as the fact that head-on collisions often involve vehicles traveling at high speeds.

According to statistics released by the Florida government, the state sees almost 400,000 traffic accidents every year. Although head-on collisions make up a small portion of these accidents, nearly 10% of head-on collisions result in a fatality. Many different situations lead to these devastating accidents. The most common causes of Florida head-on collisions include situations in which:

The driver is impaired because of illegal or legal drugs or alcohol;

November 25, 2020

Speeding and Aggressive Driving Are Major Causes of Florida Car Accidents

by Frankl & Kominsky Injury Lawyers

After a car accident, injury victims and their family members who wish to recover compensation for their damages must understand their rights and potential remedies. Establishing fault after a Florida car accident is the most critical aspect of a personal injury claim. Typically if the other motorist’s negligence, carelessness, or recklessness caused the accident, the victim may be entitled to compensation. However, if the other party establishes that the victim was also responsible for the accident, their compensation may be reduced by their fault level. Proving fault and refuting comparative negligence claims are a crucial part of the process.

Florida is a no-fault insurance state, which means that victims must file a claim with their insurance company after an accident, regardless of which party was at fault. The only exception to this rule is if the victim suffered permanent injuries or injuries involving scarring and disfigurement. In Florida, fault is a critical part of this process because the state follows the comparative negligence model of liability. Juries generally calculate two things, the total amount of the plaintiff’s damages and the percentage of fault that belongs to each party. Then a plaintiff’s recovery is reduced by the level of fault the jury attributes to them.

Florida victims must establish fault and refute comparative negligence claims if they wish to recover the maximum amount of compensation for their damages. Establishing fault requires the plaintiff to prove that the other party failed to act reasonably and breached their duty of care. One of the many ways a plaintiff can establish this is by gathering witness statements. Witness statements can provide juries with valuable insight into the events leading up to the accident. Next, digital evidence in the form of photos or videos can provide the jury with vital information. Moreover, if a victim can prove that the other driver was violating a Florida traffic law, the court may impute liability based on negligence per se. This often occurs if the at-fault party received a traffic citation or is arrested after an accident for a traffic crime such as impaired driving or speeding.

October 28, 2020

Important Requirements in Florida Punitive Damages Claims

by Frankl & Kominsky Injury Lawyers

Recently, a Florida appellate court issued an opinion in response to a defendant’s motion for certiorari review. The record indicates that the defendant drove under the influence of alcohol and marijuana and ran his car into the plaintiff and seven other pedestrians. The plaintiff filed a lawsuit against the defendant, and while the civil case was pending, the defendant pleaded guilty in a related criminal case. After the defendant pled guilty, the plaintiff moved to amend his complaint to add a claim for punitive damages.

The lower court held a hearing to determine whether the plaintiff met the evidentiary burden necessary for punitive damages claims. The defendant’s attorney contended that the law requires the court to find clear, convincing evidence that the plaintiff is entitled to punitive damages. The defendant’s attorney conceded that the relevant statute does not discuss the burden, but rather the court’s gatekeeping function. Moreover, they argued that the plaintiff must make a “reasonable showing” that there is a “reasonable basis” for the damages.

Under Florida Statutes Section 768.72(1), punitive damages will not be permitted unless the claimant proffers a reasonable showing for a basis for the claim. The issue is whether the statute requires the trial court to make an “express or affirmative” finding of a basis for punitive damages.

September 15, 2020

Florida Court Finds Hotel Did Not Owe Guest a Duty of Care in Recent Wrongful Death Case

by Frankl & Kominsky Injury Lawyers

Property owners owe guests a duty to ensure that their property is reasonably safe. The extent of the duty a landowner owes to a guest, however, will depend on the reason for the guest’s visit. Under Florida slip and fall law, invitees are owed the greatest duty, while trespassers are owed the lowest duty. Licensees occupy a middle ground.

Florida law distinguishes between public invitees and business invitees. A public invitee is a guest who is present on property that is generally open to the public for non-business reasons. A visitor at a public park is an example of a public invitee. A business invitee, on the other hand, is someone who is present on another’s property for some business purpose. A common example of a business invitee is a customer at a grocery store. Business invitees and public invitees are both owed the same duty by landowners. However, a public invitee may need to deal with sovereign immunity issues when pursuing a claim for compensation. Of course, to successfully bring a Florida premises liability lawsuit, the injured party must be able to show that the landowner owed them a duty, and that the landowner violated that duty.

In a recent Florida court of appeals decision, a plaintiff filed a wrongful death lawsuit on behalf of the deceased against a Florida hotel and resort following a golf cart accident that resulted in the individual’s death. The defendant hotel provided a complimentary golf cart service to transport guests around its property and on its grounds. The golf cart was not allowed to travel on roads beyond the hotel grounds, but it could drop passengers off who could then cross a highway on foot.

August 12, 2020

Pursuing Full and Fair Compensation After a Florida Personal Injury Accident

by Frankl & Kominsky Injury Lawyers

In the aftermath of a Florida personal injury related accident, filing a claim for compensation is crucial, especially if you have been severely injured. However, the evidence of injury must be clear, as well as the full extent of the damage suffered by the accident victim. For example, if a plaintiff in a case is unable to prove the extent of their injuries and convince the jury of the damage, they may be prevented from receiving full compensation for their damages related to the pain and suffering they experienced.

In a recent Florida appellate court opinion, the plaintiff’s car was struck by the defendant at a low speed while the two vehicles were exiting the highway. The plaintiff subsequently sued the defendant, claiming that the accident caused her to suffer a permanent back injury. The jury found that the defendant had indeed caused the plaintiff’s injury, but that the plaintiff did not suffer a permanent injury and thus should not receive pain and suffering damages. The plaintiff moved for a new trial, claiming that there were several instances of trial court error during the proceedings.

On appeal, the plaintiff argued that the trial court erred in allowing the defendant to introduce evidence of a referral relationship between the plaintiff’s former attorney and her chiropractor as a violation of attorney-client privilege. During opening statements, the defendant’s counsel suggested that the plaintiff’s former attorney referred her to her chiropractor, which contradicted the plaintiff’s previous assertion that she had been referred by an emergency room doctor.

July 15, 2020

Florida Nursing Home Coronavirus Cases Hit New Records

by Frankl & Kominsky Injury Lawyers

The Centers for Disease Control (CDC) reports that Florida is experiencing record-breaking new daily coronavirus cases. Despite reluctance from residents and some state officials, many local government entities are imposing restrictions on social gatherings and closing down beaches during high-traffic weekends, such as the Fourth of July. However, many of the new cases are tied to Florida nursing homes and long-term care facilities.

A recent news report indicates that most outbreak clusters occur in nursing homes, prisons, and food processing plants. This is likely the result of the inability to adequately social distance at these facilities. Additionally, although many clusters occur at prisons and food plants, the deadliest cases have been in nursing homes, where the residents are particularly vulnerable to COVID-19.

Florida nursing homes should prevent, quickly diagnose, and treat coronavirus outbreaks at their facilities. The CDC advises these entities to keep COVID-19 out of their facilities by limiting visitors, educating healthcare personnel, and ensuring adherence to infection prevention and control practices. Additionally, Florida nursing homes and long-term care facilities should identify infections as soon as possible by conducting regular screens of their staff and residents. Consistently engaging in these prevention, education, and treatment practices will help slow the rate of outbreaks.

June 10, 2020

The Limitations on Auto Insurance Stacking in Florida

by Frankl & Kominsky Injury Lawyers

When someone is injured in a Florida car accident with an uninsured or underinsured motorist, many auto insurance policies will include uninsured motorist (UM) coverage benefits. In Florida, insurance stacking is often used to provide more expansive coverage for the insured. By stacking car insurance policies, the insured can obtain greater protection by combining UM coverage within the same policy or across different policies. For example, in a stackable policy, if someone has $50,000 in UM coverage on one car and $50,000 on a different vehicle, they may be able to stack the coverage limit to $100,000, even if the coverage is based on two separate policies. In unstacked insurance coverage, there is no aggregating of benefits, so the insured’s UM coverage limit is what is listed on the policy. Generally, Florida law allows for insurance stacking. However, there are limitations to this practice.

In a recent state appellate court decision, the plaintiffs were injured in a car accident caused by an uninsured motorist. The vehicle the plaintiffs were driving was not insured in their names, but under a separate non-stacking commercial policy issued by the defendant insurance company. Having several personal auto insurance policies of their own with stackable UM coverage, the plaintiffs attempted to combine them to maximize their benefits from the accident. However, the plaintiffs also wanted to receive a settlement from the commercial policy in addition to the benefits they had received from their personal aggregated coverage. In response, the defendant claimed that under their non-stacking policy, plaintiffs could not recover additional benefits from them if they had already elected to recover a UM settlement from their own stackable policies.

On appeal, the court upheld the trial court’s decision to deny the plaintiffs additional payment. Based on the commercial policy in question, the plaintiffs were injured in a vehicle that was not owned or insured by them, and thus, were only allowed to receive UM benefits under a single policy. Since the plaintiffs chose to receive their benefits from a policy other than the commercial policy covering the car they were injured in, the defendant did not have to pay any additional benefits to the plaintiffs. Additionally, based on Florida law and other contractual provisions governing the commercial policy, the plaintiffs could either collect non-stacked benefits from the defendant or receive their benefits from their personal stacked policies, but not both.