Articles Posted in Damages

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The most common type of boating accident in Florida usually involves a collision with another vessel. Whether you are planning on going for a boat ride or thinking about loaning your vessel to someone outside of your household, it is crucial to understand the maritime laws in Florida. The repercussions from a serious boating crash could put you in a difficult financial situation. Speaking with a knowledgeable boat accident attorney may be essential to pursue compensation for damages and protect you from being sued in a personal injury lawsuit.

At the law firm of Frankl Kominsky Injury Lawyers, our attorneys take boating accident cases seriously. If you have any questions regarding a maritime injury, call our firm today to schedule a complimentary initial evaluation. Our licensed lawyers have in-depth knowledge and experience working with the boating laws in the state of Florida.    

Read on to learn some of the laws and requirements boat owners must abide by in the Sunshine State, including whether you are legally allowed to loan your boat out to another individual. 

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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.

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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.

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Recently, an appellate court issued an opinion addressing whether Florida’s 1970 Pollutant Discharge Prevention and Control Act allows a plaintiff’s cause of action for personal injuries. The plaintiff worked for a Florida tow truck company and suffered injuries when he arrived at the scene of an accident between a truck transporting batteries and another vehicle. The plaintiff alleged that he suffered serious injuries after coming into contact with battery acid leaking from the truck. He filed a lawsuit against the trucking company claiming that they were strictly liable for his injuries under the 1970 and 1983 pollution acts. The jury found in favor of the plaintiff and awarded him over $5million in damages; however, the district court reversed reasoning that the 1970 statute precluded his claim to personal injury damages.

Pollutants often pose significant threats of danger to Florida residents and the environment. In response to growing concerns regarding exposure to these pollutants, the legislature enacted Florida’s 1970 Pollutant Discharge Prevention and Control Act (1970 Act) and the 1983 Water Quality Assurance Act (1983 Act), which regulates the discharge and removal of certain pollutants. Legislature designed the acts to ensure that these entities are diligent in their handling of these potentially dangerous materials.

The 1970 act provides that the discharge of pollutants upon lands adjoining the coast, tidal flats, and coastal water is prohibited. The 1983 law expanded upon the 1970 act and provided injury victims with a cause of action for harms resulting from pollution of ground and surface waters. The 1970 act defines damages as the destruction to or loss of any real or personal property, except human beings. Unlike the 1970 law, the 1983 act does not provide any definition of damages within its statute. However, the 1983 act provides that injury victims may be able to recover “all damages” resulting from the discharge or other conditions of pollution. The amended 1970 act states that it applies to actions taken by both private and governmental entities when injuries result from the storage, transportation, and disposal of these products.

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When someone is injured in a Florida accident, the state’s law allows them to file a civil suit against the responsible party. If successful, plaintiffs may be able to recover monetary compensation to cover lost wages, pain and suffering, past and future medical expenses, loss of consortium, and even funeral and burial expenses. This compensation is called compensatory damages. In some cases, plaintiffs can also file for what is called punitive damages. In contrast to compensatory, Florida punitive damages focus on punishing the defendant, rather than making the plaintiff whole.

Punitive damages are only available in a small percentage of cases, where the conduct of the defendant was particularly egregious. But when they are awarded, they can be set as high as $500,000. Thus, when they are sued, it is in the defendant’s best interest to ensure that the plaintiff does not seek punitive damages. Generally, Florida has two situations in which plaintiffs can receive punitive damages—when the plaintiff can prove either intentional misconduct or gross negligence. Intentional misconduct occurs when someone knows that their conduct was dangerous and could injure someone but did it anyway. Gross negligence occurs when someone, indifferent to the life and safety of others, acts extremely recklessly or carelessly.

Plaintiffs may sometimes want to amend their complaint to seek punitive damages after it has already been filed. Section 768.72(1) of the Florida Statutes does allow plaintiffs to do just that in cases where “there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.” Whether or not a trial court grants this amendment is very important to a case; the Florida Supreme Court held 25 years ago that appellate courts cannot review a lower court’s decision to allow an amendment to a suit to include punitive damages so long as the judge follows proper procedures.

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Among the various types of damages that may be available through a Florida personal injury are loss of consortium damages. These damages are unique in that they are not designed to compensate the victim for any of the injuries they sustained, but instead focus on providing the spouse of the injury victim compensation for loss of the “sexual relationship, affection, solace, comfort, companionship, conjugal life, fellowship, society, and assistance necessary to a successful marriage.”

Under Florida personal injury law, a loss of consortium damage claim is filed by a “deprived spouse,” based on injuries that the “impaired spouse” suffered. To successfully file a claim for loss of consortium, a deprived spouse must be able to establish:

  • that a valid marriage existed between the deprived spouse and impaired spouse at the time of the injury;
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In a recent Florida wrongful death case, the Florida Supreme Court reversed an intermediate appellate court’s decision that placed a limit on the amount of damages that a person could obtain through a wrongful death lawsuit.

The Facts

The specific facts of the case are less important than its holding. However, the case involved a wrongful death lawsuit brought by a plaintiff against a tobacco company. The plaintiff claimed that the tobacco company was responsible for her mother’s early death at the age of fifty-eight. The plaintiff was forty-two at the time of her mother’s death. There was extensive testimony regarding the closeness of the plaintiff’s relationship with her mother.

The case proceeded to trial, and the jury awarded the plaintiff $4.5 million in damages for the loss of her mother. The defendant tobacco company filed a motion with the court, asking it to reduce the damages amount, but the motion was denied. The tobacco company appealed.

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Florida is among many states that apply the “impact rule” in tort litigation. Generally, the impact rule provides that “a plaintiff can recover damages for emotional distress caused by the negligence of another” only if “the emotional distress suffered . . . flow[s] from physical injuries the plaintiff sustained in an impact.” Fla. Dep’t of Corrs. v. Abril, 969 So. 2d 201, 206 (Fla. 2007). Although there are many exceptions to the application of the impact rule, this limitation on recovery for emotional damages leads to considerable chagrin among many litigants in Florida courts. For instance, in a recent decision, G4S Secure Solutions USA, Inc. v. Golzar, the Third District Court of Appeal foreclosed the recovery of emotional damages in a case involving a Peeping Tom employed as a security guard at a South Florida residential community.

The defendant in this action, G4S Secure Solutions USA, Inc. (“Wackenhut”), provides private security services throughout the United States. Around November 2008, Wackenhut hired the security officer who performed in the aforementioned peeping incident at the heart of this case. At the time of the security officer’s hiring, Wackenhut performed an investigation of the security officer’s background and uncovered a California misdemeanor conviction for disorderly conduct in 2004. Although the security officer had not disclosed the incident on his application, Wackenhut chose not to investigate the incident further. It was later revealed that the specific conduct for which the security officer was convicted under California’s disorderly conduct statute was prowling and peeking into an inhabited building.

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Although the end of a trial often means finality, seasoned litigators understand that, at least in some cases, it may simply be a precursor to protracted appellate battles. Indeed, a favorable ruling for a plaintiff is often not secure, for dissatisfied defendants will often take the case to an appellate court, seeking reversal on any ground possible. As the plaintiff in Ortega v. Belony, a recent case before Florida’s Third District Court of Appeal, now knows, a trial court victory is often just the beginning.

Ortega arose from a motor vehicle accident in Miami-Dade County. As a result of the collision, the driver of one of the vehicles involved, who is the plaintiff in this case, suffered a broken neck. The plaintiff was hospitalized for eight days following the accident. Rather than undergoing surgery to repair the injury, the plaintiff elected to wear a “halo” for three months. During his rehabilitation, the plaintiff had difficulty sleeping and needed assistance with ordinary tasks such as bathing. Following the three months, the halo was removed, and the plaintiff only complained of residual back pain. His neck had almost fully healed, but the plaintiff sought additional treatment from an orthopedic surgeon. The surgeon recommended surgery. However, the plaintiff again declined and instead opted for an injection treatment. The treatment was successful, and by the time of the trial, the plaintiff did not have difficulty performing daily activities and had not returned to the surgeon for any additional treatments.

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In addition to determining fault, juries are often tasked with the responsibility of setting damages, the amount an injured party may recover from a liable party. Obviously, most jury members are not experts who are perfectly capable of setting a damages amount with mathematical certainty, and even though expert testimony is often enlisted to help guide juries, jury verdicts are often hotly disputed.  Although damages awards, like all jury determinations, are entitled to deference, a court does have discretion to alter a damages award it determines is too high or low. However, when a court exercises this power, disputes regarding the damages award are often just as bitter. Indeed, in a recent decision, Arnold v. Security Nat’l Ins. Co., the Fourth District Court of Appeal needed to address whether it was proper for a trial court to reduce a jury verdict the trial court considered excessive.

Arnold began with a car accident that left the plaintiff in this case seriously injured. The other driver did not have motor vehicle insurance, and the plaintiff brought suit against his personal uninsured motor vehicle insurance provider. In his complaint, the plaintiff alleged that he suffered physical, emotional, and financial damage as a result of the uninsured driver’s negligence. The case ultimately proceeded to trial, at which the plaintiff produced expert testimony related to the past and future medical expenses he would likely incur as a result of a herniated disc resulting from the accident. His insurance company argued, however, that the plaintiff’s injuries were a result of prior injuries and dissociated, natural degenerative conditions.

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