Court Reduces Award Due to Lack of “Life Expectancy” Evidence

Ideally, your injuries following an accident are minor and only require limited medical care. Unfortunately, that is not always the case. For example, if you suffer multiple broken bones in a car crash, you may require multiple surgeries and struggle with lifelong effects such as chronic pain and arthritis. Similarly, if an accident causes a head injury, there may be permanent brain damage that requires lifelong medical care.

Under Florida law, an accident victim has the right to seek compensation for future medical expenses from a negligent party or their own uninsured motorist carrier. However, it is not enough to simply guess at how much those future expenses may be. While there is always some degree of speculation required in these cases, a victim must still present a judge and jury with “competent, substantial evidence” on which to basis an award of future medical expenses.

Here is an illustration from a recent Broward County personal injury case. The victim here was injured in a car accident. She filed suit against the responsible party and served the claim on her uninsured motorist carrier. Following a jury trial, the court awarded the victim $690,000, which included $360,000 for future medical expenses.

The insurance company appealed. The Florida Fourth District Court of Appeals agreed with the insurer that the award of future medical expenses was not supported by the evidence. The Fourth District said the only evidence presented at trial came from one of the victim’s doctors, who testified she would need shoulder surgery (at a cost of $40,000-$50,000) and thereafter “incur up to $2,000 in future medical expenses per year.” Notably, the jury did not hear any evidence regarding the victim’s life expectancy, so it was impossible to calculate how many years she would incur these expenses.

Accordingly, the Fourth District reduced the award of future medical expenses to $50,000–the maximum estimated cost of the anticipated shoulder surgery–plus $2,000 for each year of the victim’s remaining life expectancy, which the trial judge was ordered to determine in a separate proceeding.

A Florida Car Accident Attorney Can Help

Future medical expenses are an issue you should not ignore when contemplating a personal injury lawsuit or simply dealing with your own insurance carrier. It may not be immediately apparent after the accident, but your injuries may require several years of medical care, therapy, and pain management. An experienced Clearwater personal injury attorney can help you with your case and fight for the compensation you deserve. Contact the Law Office of Paul B. Genet, P.A., today at 727-510-8802 if you would like to schedule a consultation.

Source:

scholar.google.com/scholar_case?case=17181244751857868422&hl=en&as_sdt=2006

Since the 1920s, Florida courts have applied a “dangerous instrumentality doctrine” when assessing liability for auto accidents. Basically, this doctrine holds that the owner of any motor vehicle is vicariously liable if they “voluntarily entrust” said vehicle to a person “whose negligent operation causes damage to another.” The idea behind this rule, as the Florida Supreme Court has explained, is that “the one who originates the danger by entrusting the automobile to another is in the best position to make certain that there will be adequate resources” to pay for any damages arising from the vehicle’s negligent use, even if the owner is not actually operating the car at the time.

Judge Says UPS Can Stand Trial Over Fatal Jacksonville Accident

There are some exceptions to the dangerous instrumentality doctrine. One is known as the “shop exception,” which applies when the owner of a vehicle entrusts his or her vehicle to a “repairman or serviceman.” In other words, if you take your car to the shop for repairs, and while the vehicle is in the shop’s custody one of its employees gets into an accident, you will not be held liable. This exception only applies, according to the Supreme Court, if the owner “does not exercise control over the injury-causing operation of the vehicle during the servicing, service-related testing, or transport of the vehicle, and is otherwise not negligent.”

Recently a federal judge in Jacksonville rejected a defendant’s effort to invoke the shop exception in an ongoing car accident case. The underlying accident took place in 2013, when a UPS package car struck another car while driving on Interstate 90. The other car “careened off the road and crashed into a tree,” according to court records, which killed a married couple and injured their grandson.

The estates of the deceased and the parents of the minor child sued a number of parties for wrongful death and personal injury, including UPS as the owner of the vehicle that caused the accident. UPS moved for summary judgment, arguing that at the time of the accident, the package car was driven by an independent contractor hired to deliver the vehicle from its manufacturer to UPS. In fact, the driver was actually sub-contracted by another contractor hired by UPS, which maintained it had no control over the driver’s actions.

But as the judge explained in an order denying UPS summary judgment, this is exactly the scenario contemplated by the Florida Supreme Court in creating the dangerous instrumentality doctrine. Ultimately, the subcontractor operating the vehicle was a “permissive user,” and that meant that UPS could be held liable for her negligent operation of the package car. The shop exception only applies to “servicing or repairing the motor vehicle itself,” not delivery from the manufacturer, as is the case here. Indeed, the judge noted that UPS–a package delivery company–could have had one of its own drivers deliver the car, and the subcontractor was therefore providing a service for the convenience of UPS.

Have You Been Injured in a Florida Car Accident?

If you are seriously injured in an auto accident, Florida law allows you to seek compensation from the owner of the vehicle responsible for the accident. An experienced Clearwater auto accident attorney can help you fight for your rights. Contact the Law Office of Paul B. Genet, P.A., if you need to speak with someone today.

Resource:

https://scholar.google.com/scholar_case?case=1346378335429314959&hl=en&as_sdt=6,47

Divided Court Holds Insurer Not Liable for UM Coverage

There is, however, some legal confusion in Florida over when UM coverage applies to such situations. A recent decision by a divided appeals court in Lakeland illustrates the complexity of the problem. This case involves a car accident and two separate insurance policies issued by the same carrier. For the sake of convenience, we’ll refer to these as Policy A and Policy B.

The car itself belonged to a married couple who allowed their daughter to use the vehicle. All three were insured under Policy A. On the day of the accident, the daughter allowed a friend to drive. He was insured under Policy B, which was his mother’s policy.

According to court records, “[t]he accident happened when [the driver] attempted a right turn from the left lane and collided with a car waiting at a red light on the intersecting street.” The driver alleged the accident was due to the car having faulty brakes. He subsequently sued the daughter and her parents for negligence in failing to maintain their car. The insurance carrier declined to cover the family’s potential liability under Policy A, because the driver “was an insured under that policy by virtue of having been permitted to drive the car.”

Meanwhile, the daughter counter-sued the driver, claiming his negligent driving caused the accident and injured her. The insurer eventually paid to settle this claim under the terms of Policy B. The driver then sought uninsured motorist benefits under Policy A.

The insurer balked, arguing UM benefits were not available to the driver under Policy B because he was, in fact, driving a vehicle insured under the very same policy. In other words, by driving his friend’s vehicle with her permission, the car came under his insurance policy. There was therefore no “uninsured vehicle” involved in the accident.

A jury subsequently sorted out the question of who was responsible for the accident: It held the daughter and her family 92 percent liable for negligent maintenance and the driver 8 percent responsible for negligent driving. The trial court then ordered the insurance company to pay $150,000 in damages to the driver pursuant to his UM coverage under Policy B. The insurance company appealed.

In a June 3 decision, the Florida Second District Court of Appeals voted 2-1 to reverse the trial court’s decision on the issue of UM coverage. The majority held the plain language of the policy “unambiguously excludes motor vehicles insured under its liability provisions from its scope.” This included the vehicle the driver was driving on the day of the accident. The dissenting judge argued this was “inequitable” given that the driver’s family paid for both bodily injury and UM coverage, and they should not be denied benefits under the latter just because benefits were also paid under the former.

Get Legal Help Following a Florida Car Accident

The dissenting judge noted this was a “case of first impression in Florida,” meaning other appellate courts in the state could reach a different conclusion based on a similar set of facts. The legal complexity of dealing with insurance policies is just one reason you should always work with an experienced Clearwater personal injury lawyer following any type of accident. Contact the Law Office of Paul B. Genet, P.A., at 727-510-8802, if you need to speak with an attorney right away.

Florida Court Rejects Jury’s Award of 100 Percent of Defendant’s Net Worth

But there are limits on how far punitive damages can go, as a recent decision by a Lakeland, Florida appeals court illustrates. The victim in this case was in a car accident with the defendant. The defendant admitted he had fallen asleep at the wheel and was therefore liable for causing the accident. Additional evidence presented by the victim established the defendant, a physician, had also taken sleeping pills just before getting behind the wheel for a three-hour drive.

Based on this information, the trial court allowed the victim to seek punitive damages. Before the jury, the defendant testified that he had a net worth of approximately $284,000. The jury decided to award exactly that amount in punitive damages.

The defendant (and his insurance company) appealed, arguing the punitive damage award was excessive and therefore violated the Due Process Clause of the U.S. Constitution’s Fourteenth Amendment. The Florida Second District Court of Appeal—which has jurisdiction over Tampa, Pinellas County, and Clearwater, among other areas—heard the appeal. In a May 4 decision, the Second District agreed the award was unconstitutional and returned the case to the trial court for further proceedings.

The Second District acknowledged that “drawing the line between constitutionally permissible and unconstitutionally excessive can be difficult in the context of punitive damages awards.” That said, Florida courts have established that punitive damages exceeding a defendant’s net worth are clearly unconstitutional. Likewise, the Fourth District Court of Appeal has said a punitive damages award of 40 percent of a defendant’s net worth is unconstitutional. Given that 40 percent is unconstitutional, the Second District reasoned, then an award of 100 percent of the defendant’s net worth, as was the case here, is “likewise excessive.”

The Second District did not, however, decide just how far to reduce the award. It returned the case to the trial judge to make that determination. If the victim disagrees with the trial judge’s proposed reduction, he is free to seek a new jury trial “on the sole issue of the amount of punitive damages.”

Get Help From a Florida Car Accident Attorney

Even a simple car accident can lead to complex legal problems. That is why you should seek assistance from an experienced Clearwater personal injury lawyer who understands Florida law and can fight to ensure you receive compensation for your injuries. Contact the Law Office of Paul B. Genet, P.A., at 727-510-8802, if you need to speak with an attorney right away.

Restaurant’s “Internal Policy” Not Enough to Create Liability

In general, the answer in Florida is “no.” Florida law states that anyone “who sells or furnishes alcoholic beverages to a person of lawful drinking age shall not thereby become liable for injury or damage caused by or resulting from the intoxication of such person.” There are exceptions to this rule for someone who provides alcohol to a minor or a person “habitually addicted to the use of any or all alcoholic beverages.”

Aside from these limited exceptions, the law makes it difficult to sue a bar for over-serving a patron who subsequently drives drunk and injures or kills someone. For example, a Florida appeals court recently rejected just such a lawsuit. In this case, a woman had gone to a restaurant and consumed several alcoholic beverages. At some point, the restaurant staff stopped serving the woman alcohol and gave her water instead. But the staff apparently made no effort to prevent the woman from leaving the restaurant in her own car.

Later that evening, the woman drove her car into an intersection and hit another vehicle, injuring at least three people. These victims sued the restaurant, arguing it had a legal duty to prevent the woman from leaving its establishment drunk and driving her car.

As noted above, Florida law generally holds bars and restaurants harmless for the drunk driving its patrons. The plaintiffs here tried to get around this rule by arguing the restaurant had “undertook a voluntary duty to prevent the Driver from driving while intoxicated.” More specifically, the plaintiffs said the restaurant had an “internal policy” requiring employees to take a drunk patron’s keys and call them a cab. By failing to follow this internal policy, the plaintiffs said, the restaurant committed negligence.

The courts disagreed. The Florida Fourth District Court of Appeal, upholding a lower court’s decision, said an internal policy does not “create a duty to third parties.” Furthermore, the court said there was no evidence the restaurant had “control over the intoxicated party.” There was, for instance, no evidence the staff knew the women had “started her car while under the influence” of alcohol. Accordingly, the Court of Appeal said it was proper to dismiss the plaintiff’s lawsuit.

Need Legal Help Following a Car Accident?

While bars may not be liable for the acts of its patrons, a drunk driver can certainly be held responsible in court for any injuries caused to innocent persons. If you have been injured in a drunk driving accident and need advice from an experienced Florida personal injury lawyer, contact the Law Office of Paul B. Genet, P.A. at 727-510-8802 today.

Earlier Judgment Binding in Subsequent “Bad Faith” Lawsuit

Even with UM coverage, however, there may be cases where your insurance company plays hardball and refuses to settle a legitimate claim. If that happens, you may have a separate claim for “bad faith” against your insurer. Florida law allows such claims provided the insured person gives the insurer at least 60 days notice.

The Florida Supreme Court recently addressed one aspect of UM coverage and bad faith claims which had been a source of some confusion among lower courts and trial lawyers. Specifically, the Court rejected a procedural tactic used by some insurance companies to drag out litigation to the detriment of accident victims with legitimate claims.

The plaintiff in this case was injured in a car accident in 2007. The other driver was underinsured. The plaintiff had $50,000 in UM coverage from his own insurer. But even after the plaintiff gave the required 60-day notice, his insurer refused to settle for the full $50,000, instead offering just $5,000. The plaintiff noted that amount would not have even covered his past medical bills.

In 2009, the plaintiff named the insurer as a defendant in a lawsuit against the uninsured driver. The purpose of this lawsuit was to establish the full extent of the uninsured driver’s liability. The plaintiff also gave the insurer another opportunity to settle for the $50,000 policy limit, but once again he received no response.

It was not until early 2011—four years after the accident and a month before trial—that the insurer finally offered to pay the $50,000. The plaintiff said no, but the insurer’s tactic successfully delayed the trial for another six months. The plaintiff rejected a second $50,000 settlement offer, in part because a jury verdict could establish the insurer’s “potential liability under a future bad faith claim.”

The jury ultimately ruled the uninsured driver was 100 percent liable for the accident and calculated the full value of the plaintiff’s damages at $1 million. The judge ordered the insurer to immediately pay the $50,000 policy limit. The judge also “reserved jurisdiction” to decide any future bad faith claim against the insurer, which could leave the company on the hook for the rest of the $1 million.

The insurer appealed, arguing the trial judge should have allowed it to pay the $50,000 limit before trial, thereby “mooting” the plaintiff’s right to a jury determination of the total damages. In effect, the insurer said the plaintiff should have made its bad faith claim at the same time as his uninsured motorist claim, and having chosen not to do so, he should now be forced to re-litigate the entire case if he wants to pursue the bad faith issue.

The Florida Supreme Court decided this made no sense. In a 5-2 decision, the Court said the insurer’s delay tactics in this case should not be rewarded. The insurer’s “confessing judgment on the eve of trial” was designed to avoid a jury calculation of the plaintiff’s total damages—a figure that is “binding” in any subsequent bad faith action the plaintiff brings against the insurer. Forcing the plaintiff to re-litigate this issue would be “unduly and unnecessarily burdensome to him,” the Court said.

Get Legal Help Following a Car Accident

As this case illustrates, car accident litigation is often a lengthy, complex process that can take years to resolve. That is why it is important you work with an experienced Clearwater personal injury lawyer who understands the legal system and can effectively represent your interests. Contact the Law Office of Paul B. Genet, P.A., at 727-510-8802 if you need to speak with someone about your case today.

Unfortunately, simply carrying no-fault insurance is not a guarantee the insurer will pay benefits. In 2012, the Florida legislature, in an effort to address allegations of people abusing the no-fault system, amended the law to limit an insurer’s liability in certain cases. Specifically, the amended law said the $10,000 limit only applied if a physician or other medical provider “determined that the injured person had an emergency medical condition.” Conversely, if the medical provider determined an accident victim “did not have an emergency medical condition,” the insurer could limit no-fault benefits to just $2,500.

Court Limits Car Accident Victims’ Insurance Benefits Due to Confusing Law

But what about cases where a medical provider made no determination of an emergency condition one way or the other? A federal appeals court recently addressed a pair of Florida cases raising that exact question. Although most accident and insurance cases fall under state law, many insurance companies are based outside of Florida, which means federal courts may hear these disputes while still applying the substantive law of Florida.

Here, there were two cases involving completely different car accidents in Florida. In both cases, the victims sought no-fault benefits up to their respective policy’s $10,000 limit. Both insurance companies denied the claims because the victims never received a medical diagnosis, one way or the other, as to whether their injuries constituted an “emergency medical condition.”

In both cases, different judges concluded that neither victim could recover more than $2,500 in benefits under the terms of the amended Florida law. In the second case, the insurance company argued it should not be liable at all. Both victims appealed to the U.S. 11^th Circuit Court of Appeals, which consolidated the two cases at the parties’ request.

On December 30, 2015, the 11^th Circuit affirmed the two lower court decisions limiting the victims’ recovery to $2,500. The court acknowledged that the 2012 amendments were “in inescapable conflict,” as the language did not specifically address a situation, as presented in these two cases, where a medical provider simply failed to make any determination as to whether or not the victim’s injuries constituted an “emergency medical condition.” That said, the court looked to the “legislative history” of the amendments and, based on that, concluded the Florida legislature “sought to reduce fraudulent claims by making the full $10,000 amount of benefits available only to those insureds who suffered severe injuries, a restriction defined into the term ’emergency medical condition.’” Therefore, allowing the plaintiffs in these cases to “escape that restriction on the higher limit would defeat the legislative intent and policy behind the amendments, which we are bound to honor.”

Need Help from an Auto Accident Attorney?

Poorly drafted legislation often leads to bad law, which in turn can hurt innocent victims. The above decision illustrates the complexity of Florida law as it relates to accidents and insurance. If you have suffered serious injuries due to a car accident it is therefore essential you work with an experienced Clearwater personal injury lawyer. Contact the Law Office of Paul B. Genet, P.A., if you would like to speak with an attorney today.

Court Reduces Jury Verdict in Disfigured Sunbather Case

In a recent high-profile Florida case, a state appeals court reduced a $2.6 million jury verdict in favor of a Kansas woman who was permanently disfigured in a horrific 2011 accident. The victim was sunbathing on a public beach in Volusia County, when a beach patrol officer made an improper turn in his vehicle and ran over the victim’s head. According to court records, the victim suffered a skull fracture and other internal injuries which required six days of hospitalization, followed by reconstructive surgery on her ear and eyelid. The victim continues to suffer from lingering paralysis on one side of her face, hearing problems, and other chronic symptoms.

The victim sued the Volusia County for negligence as owner of the vehicle which hit her. A jury ruled in the victim’s favor and awarded her a total of $2.6 million in damages. The County only appealed $600,000 of that award, which the jury assigned to the victim’s “diminished earning capacity” and “future medical expenses.” In a November 13, 2015, opinion, the Florida Fifth District Court of Appeal in Daytona Beach agreed with the County “there was no reasonable evidence” to support the jury’s verdict on those issues, and accordingly reduced the plaintiff’s award to $2 million.

With respect to diminished earning capacity, the jury awarded $500,000 in damages based on the victim’s claim her injuries would “cost her career” as a teacher’s assistant. In fact, the appeals court observed, the victim was “voluntarily unemployed” at the time of the accident and managed to find work as a teacher’s assistant about a year after her accident. According to the court, none of the evidence presented at trial suggested she was unable to satisfactorily perform at her job. Nonetheless, the victim argued she was at danger of losing her job in the future due to her injuries. The appeals court said that argument was “purely speculative” and should not have been presented to the jury.

Regarding future medical expenses, Florida law only permits a victim to recover those costs which are “reasonably certain” to occur. Here, the jury awarded the victim $100,000 based on her claims she might require additional ear surgery and treatment for back pain. But the appeals court said, “There was no evidence from which the jury could infer the same with reasonable certainty, just multiple speculative assertions with regard to future treatment.”

Need Help Following a Car Accident?

A case like this illustrates the importance of documenting all injuries and medical treatment following an auto accident. You cannot rely on a court to “take your word for it” without providing adequate proof to corroborate your claims. That is why you should always work with an experienced Clearwater personal injury attorney following a serious accident. Contact the Law Office of Paul B. Genet, P.A., today if you would like to speak with an attorney right away.

It is very unlikely that an uninsured or underinsured driver has sufficient funds to compensate you personally. It is therefore crucial that you obtain sufficient coverage of your own in case there is an accident.

Limits of Florida no-fault (PIP) coverage

Florida law does not obligate you to purchase uninsured motorist coverage (UMC). Many insureds choose not to purchase UMC, because they incorrectly believe that their personal injury protection (PIP) covers all of their damages. Many car accidents cause grave injuries that necessitate expensive medical treatments exceeding the $10,000 PIP coverage for serious injuries requiring emergency medical treatment.

Protections of uninsured motorist coverage

Florida obligates your insurance company to offer you the option of UMC. UMC may be beneficial for the following reasons:

• It covers lost wages and medical expenses not covered by your PIP and health insurance.
• It travels with you — you are covered if you are injured as a pedestrian or on your bicycle.
• It covers injured family members.
• It provides protection if you are injured by a hit-and- run motorist.
• It offers protection against “phantom” motorists who made no contact with your vehicle but caused your accident through their actions.

With many Floridians still affected by the recession, more and more drivers are reducing or dropping their basic auto insurance altogether. Consider supplementing your PIP coverage with UMC for your own protection.

If your insurance compensation is insufficient to cover your damages for personal injuries, you     may require an aggressive Florida accident attorney to help you obtain compensation.

Causes of trucking accidents

Most trucking accidents are not like car accidents. As a result of massive truck sizes, accidents with these vehicles often cause catastrophic damages to other drivers, other vehicles on the road and nearby people and property.

Some causes of truck accidents include:

• Exhausted drivers
• Poorly trained or poorly supervised drivers
• Hazardous spills
• Unbalanced freight
• Defective vehicles or parts
• Inebriated or impaired drivers

In addition, drivers of smaller vehicles who underestimate trucks’ blind spots or their difficulties braking or maneuvering quickly can contribute to truck accidents.

Federal and state regulations: trucking accident liability

Stringent state and federal regulations and insurance requirements are designed to minimize accidents. The federal government and Florida scrutinize truck companies’ compliance with safety requirements and insurance protocols. Despite often being a vehicle’s registered owner, a trucker is considered a statutory employee of the trucking company, and the company is responsible for the driver’s on-the-job conduct. In addition, Florida law requires trucking companies carrying volatile or unsafe materials to carry sizeable liability insurance.

A Florida attorney who has successfully represented trucking accident victims will be familiar with all trucking regulations, insurance requirements and strategies for obtaining the maximum compensation for your injuries.