Articles Posted in Motor Vehicle Accident

Recently a state appellate court issued an opinion in a Florida personal injury case requiring the court to decide whether an accident victim could still recover for their injuries when they were under the influence of drugs or alcohol when the accident occurred. According to the court’s opinion, the plaintiff appealed a trial court decision that found him unable to recover any damages after being injured in a motor vehicle accident because he was under the influence of an alcoholic beverage at the time. As required by law, the trial jury apportioned liability amongst the plaintiff and defendant. They assigned 55 percent negligence to the plaintiff and 45 percent negligence to the defendant.

Generally, Florida is considered a “pure comparative” negligence state. In pure comparative negligence states, plaintiffs can recover compensation from another party, unless the plaintiff is the only one to blame for the accident. In theory, this means that a plaintiff can recover compensation for their injuries even if they are 99 percent at fault. However, their proportionate level of fault reduces the total damage award. The “drug and alcohol” defense, contained in Florida Statutes section 768.36, is an exception to this general rule.

In such cases, the court can preclude the plaintiff’s recovery if the defendant can establish that the plaintiff was more than 50 percent at fault for the accident and their injury occurred when they were under the influence of drugs or alcohol or their blood or breath alcohol level was .08 or higher. Most importantly, the jury must also find that the influence of the alcoholic beverage or drug caused the plaintiff to be more than 50 percent at fault for their injuries. Each of these requirements must be met for the defense to apply.

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;

Florida law generally allows for an accident victim to recover for their injuries, even if they are partially at fault for causing the accident in which the injuries resulted. In Florida, this concept is known as comparative negligence. Being a pure comparative negligence jurisdiction, Florida accident victims who share responsibility for causing an accident will not be prevented from recovering for their injuries. Instead, accident victims will have their total damages award reduced by their own percentage of fault.

For example, if a party is injured in an accident and sustains $500,000 in damages, and the jury determines that the plaintiff is 20% responsible and the defendant 20% responsible, the plaintiff’s ultimate recovery amount would be $400,000 ($500,000 – (.20 x $500,000)).

If, however, an accident victim is under the influence of drugs or alcohol at the time of the collision, Florida’s drug and alcohol exception may apply. Florida Statutes Section 768.36 contains the drug and alcohol exception, which states a plaintiff is prevented from recovering for their injuries if the defendant can show that:

Recently, a state appellate court issued an opinion in a Florida car accident case discussing whether the trial court was correct in determining that the defendant’s negligence was the sole cause of the accident resulting in the plaintiff’s injuries. Ultimately, the court concluded that the lower court was correct in finding that the defendant was negligent; however, the court went on to explain that the jury should have been allowed to consider whether the plaintiff’s actions contributed to the accident.

Comparative Fault in Florida Personal Injury Law

While the negligence of one party is the sole cause of some Florida car accidents, it is not uncommon for a plaintiff to bear some responsibility for causing an accident. Under Florida personal injury law, a plaintiff is not precluded from recovering for their injuries merely because they are partially at fault. Instead, the law allows a plaintiff to recover a reduced amount, based on their own percentage of fault.

The Facts of the Case

According to the court’s opinion, the plaintiff’s vehicle was struck from behind by the defendant. It was agreed that the plaintiff had planned to make a U-turn, but realized that it was not legal to do so at that particular intersection. The plaintiff claimed that she began to veer into the center median, but never applied the brakes and maintained a speed of about 30 miles per hour.

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According to recent statistics by the Florida Highway Safety and Motor Vehicles, distracted driving can be visual, manual, or cognitive. Examples of distracted driving include texting, eating, checking your GPS, unsecured pets, adjusting the radio, tending to kids in the back seat, and even daydreaming. Government statistics show that there were 50,190 distracted driving crashes in Florida in 2017, 1,746 of which occurred in Palm Beach County.

Distracted driving can be the basis for a legal claim for damages against the distracted driver. Most claims arising out of Florida car crashes are the result of negligent conduct. To establish a Florida negligence claim, a plaintiff must prove: the defendant owed a duty of care to the plaintiff to conform to a certain standard of conduct; the defendant breached that duty; a causal connection existed between the defendant’s conduct and the plaintiff’s injuries.

Florida drivers are required to drive carefully and prudently to avoid endangering other people and property. This includes being attentive to the road at all times in order to be prepared for an emergency. In a motor vehicle claim, the plaintiff must show that the accident was a foreseeable result of the defendant’s actions. For example, causing a crash because a driver was distracted is a foreseeable result of failing to maintain attention to the road while driving.

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In the mid-1990s, states across the nation began to see an uptick in the number of roadside accidents. Many of these accidents involved those who operated emergency vehicles on the road’s edge, such as police officers, firefighters, emergency medical technicians, and tow truck drivers.

It was not until 2002 that Florida passed its first iteration of what has come to be known as the “Move Over” law. Since then, the law has undergone several amendments, and in its current form the law covers “emergency vehicles” and “wreckers.” Specifically, the law requires that all motorists traveling in the same direction of a stopped emergency vehicle “vacate the lane closest to the emergency vehicle,” as long as the road has two or more lanes. If an emergency vehicle or wrecker is stopped on a single-lane highway then passing motorists must slow down to a speed of 20 miles per hour under the posted speed limit or, if the speed limit is 25 miles per hour or less, to a speed of five miles per hour.

A violation of Florida’s move over law can result in a traffic citation. However, the import of Florida’s move over law does not stop there. It also makes recovery easier for those who have been injured after a motorist failed to comply with the move over law. If you have questions of this nature, reach out to a dedicated Florida motor vehicle accident attorney.

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Some parties try to get away with lying or concealing information relevant to a legal claim. However, the consequences of failing to provide honest and complete testimony can be dire. In a recent case before a Florida appeals court, the court dismissed a personal injury claim after the plaintiff concealed a history of low back injury.

In that case, the plaintiff was riding in a car owned by his girlfriend when they were hit by a truck that fled the scene. The plaintiff alleged that the girlfriend was negligent and that he suffered permanent injuries to his neck and lower back as a result.

The parties engaged in discovery and the plaintiff admitted that he injured his lower back about 30 years prior, but testified that it had healed and he had not had any problems since that time. However, a review of the plaintiff’s medical records later showed that he hurt his lower back several months before the incident when he slipped on a stepladder. His records also revealed that he reported having a “chronic” history of similar episodes as well as a herniated disc. Additionally, when he went to the emergency room after the most recent accident, he reported that his back pain started “a long time ago.”

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In most Florida personal injury cases, once a jury comes to a decision and enters a verdict, the case is over. Generally speaking, the jury’s decision regarding whether the defendant should be held liable to the plaintiff is fairly insulated from review and can only be overturned in the rarest of circumstances.

There are some situations, however, in which a jury’s decision regarding an award amount is subject to a judge’s review. Thus, if a jury finds that the defendant is liable to the plaintiff, enters judgment in the plaintiff’s favor, and then enters an award too large or too small, the judge can review the jury’s award. Under Florida Statute section 768.74, if the judge determines that the award was not appropriate, the judge can then order a remittur (reduction) or an additur (increase) in the award amount.

Section 768.74 lays out several considerations that a judge should take into account when asked to review a jury’s award. These include:

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Earlier this month, an appellate court issued an opinion in a Florida personal injury case involving a pedestrian who was struck by a golf cart and sustained serious injuries. The case illustrates the difficulties that are common when dealing with an insurance company in the wake of a serious accident.

Unfortunately, the operator of the golf cart responsible for causing the accident did not have sufficient insurance coverage to fully compensate the victim for her injuries. Thus, the victim was forced to file a claim with her own insurance company, under the underinsured motorist provision. The case required the court to determine if the accident victim’s policy covered the accident.

The Plaintiff’s Insurance Policy

The plaintiff’s insurance policy provided for both liability protection as well as underinsured motorist protection. The language describing the policy’s liability protection included coverage for all accidents involving cars and trailers. However, the policy contained an exclusion for vehicles that were not generally used for public roads. That being said, the exclusion specifically excepted accidents involving non-owned golf carts from the exclusion.

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Cases that go to trial are generally left in the hands of the jury. However, in some cases, judges can take the decision out of juries’ hands and make a decision on their own. In one recent case, a Florida appellate court considered the limits of a trial judge’s ability to take the decision away from the jury, even when only one side presented testimony on an issue.

In this Florida car accident case, a woman and her husband brought a claim against the insurance company for uninsured/under-insured motorist coverage after the woman was injured in a car accident. The case proceeded to trial, but before the trial began, the court prohibited three of the insurance company’s experts from testifying, leaving only the plaintiff and her surgeon to testify on the issues of causation and whether she sustained a permanent injury.

The jury found the accident caused the plaintiff’s injuries but did not find that she had suffered a permanent injury. However, the plaintiffs moved for a directed verdict, and despite the jury’s verdict, the court found in the plaintiffs’ favor on the issues of causation and permanency. The insurance company appealed, arguing that even though their experts were barred from testifying, the court should have allowed the jury’s verdict to stand.

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