South Florida Injury Attorney Blog
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LawThe settlement of lawsuits is encouraged under Florida law, so much so that the so-called “Florida Settlement Rule” states that a party who refuses a settlement offer can be held liable for the attorney fees and costs incurred by the maker of the offer if the maker is successful at trial. Of course, there are many stipulations that come with the rule, and the issue of whether or not the rule was complied with is a frequent source of litigation in and of itself.

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coinsFlorida is what is known as a “pure comparative negligence” state. This means that a party’s recovery in a lawsuit can be reduced in proportion to the party’s own fault. This and other issues were discussed in a recent case handed down by the District Court of Appeal for the Fourth District of Florida.

In the case of Jones v. Alayon, the plaintiff was the daughter and personal representative of the estate of a man who had died in a car accident. In the accident, the man’s car was struck from behind, causing him to hit a guardrail, overturn his car, and be ejected. It was unclear whether the man was killed when he initially hit the pavement or when he was hit by other cars shortly thereafter. The defendant in the case was an off-duty policeman who fled the scene and told authorities that his car had been stolen. He later admitted that he had been dishonest and, at the time of trial, was in jail on charges pertaining to the accident.

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cigaretteCivil lawsuits involving personal injuries are subject to a time limit, or “statute of limitations,” for filing. This time period usually begins to run on the date that a person is injured or killed due to the negligent, reckless, or intentional conduct of another person or a business. Some actions are also subject to a “statute of repose,” which may place additional time restrictions on the filing of a lawsuit. The applicability of the statute of repose for fraud was at issue in the recent case of Hess v. Philip Morris USA, Inc.

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traffic lightIn a recent case, the District Court of Appeal for the Fourth District was called upon to determine whether a company that negligently designed a traffic signal, thereby causing a man’s death, could rely upon the 1959 case of Slavin v. Kay, which held that a contractor is not liable for patent defects after acceptance of a construction project by the owner.

Facts of the Case

In the case of McIntosh v. Progressive Design and Engineering, Inc., the plaintiff’s father was killed in an automobile accident. According to the plaintiff, the accident happened because the father was relying on a traffic signal that indicated it was safe for him to exit a mobile home park, even though a truck was approaching from a cross-street. The plaintiff sued the company that designed the traffic signals for the intersection, alleging that it had negligently designed the signals in a manner that caused his father to overlook the traffic control signal meant for the mobile home park and, instead, rely on a signal that was meant for traffic farther down the street.

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bikeDefective products are everywhere. It seems like there is a new recall announcement concerning a car, truck, or SUV every week. It’s enough to make one consider alternative transportation. Unfortunately, those other forms of transportation – particularly bicycles with carbon fiber forks – may not be safe either.

In the case of Trek Bicycle Corporation v. Miguelez, the plaintiff was a man who had an accident on the Rickenbacker causeway while riding his newly purchased Trek road bike on the shoulder of the road. According to the plaintiff, the bike stopped abruptly, causing him to fall and hurt his face, jaw, and shoulder. After looking at the bike, it was the plaintiff’s belief that an object had ended up caught in the rotating spokes of the front wheel, then hit the front carbon fiber forks’ back sides; this caused the wheel to stop rotating. The object then hit the front forks, cracking them and causing them to buckle and the bike to collapse.

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settlement propIf you have been involved in an automobile accident, you would prefer to settle your case outside court rather than proceed to trial. This is a common sentiment because, of course, a settlement puts money into the hands of a crash victim considerably faster than a jury verdict does.

There are several reasons for this. First of all, it takes a lot of time to prepare a case for trial. Discovery and pre-trial procedures can take months or, in complex cases involving multiple parties, even years. Also, there can be a long wait for a trial date if the court has a backlog of pending cases. There is also the chance that the opposing party may file an appeal, prolonging the case even longer.

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LawPurchasing automobile accident insurance can be complicated, especially for drivers who may not be familiar with the terminology that insurers use to describe the various types of coverage available or the laws that apply to the insurance industry. For instance, drivers may not realize that, absent an intentional waiver of rights, an insurance company must provide the same amount of “uninsured motorist” coverage as the amount of “bodily injury liability” that the insured purchases.

In the case of Chase v. Horace Mann Insurance Company, the Florida Supreme Court addressed the issue of whether removing the sole named insured from an auto insurance policy and then listing a separate individual as the named insured on that policy for the first time created a new policy for purposes of Fla. Stat. sect. 627.727.

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door2

Could it be that a false sense of security is worse than no security at all? Two siblings who moved into a “gated community” surrounded by water, walls, and fences in 2004 assumed that they were safe from murderers and thieves. After all, the apartment complex claimed to provide reasonable lighting, locks, and peepholes, and the apartments had alarm systems. Unfortunately, the siblings were far from safe.

According to the personal representative’s appellate brief in the case of Sanders v. ERP Operating Limited Partnership, the siblings were murdered in 2005 while living at the Gatehouse on the Greens apartment complex located in Plantation, Florida. The complex consisted of over 300 apartments located in a dozen buildings. In all, it was home to approximately 1,000 residents.

Proceedings in the Trial Court

The lawsuit filed against the owner of the complex by the siblings’ personal representative alleged that the siblings’ death was caused by the complex’s negligent failure to maintain the premises in a reasonably safe condition. Specifically, the personal representative claimed that the complex did not maintain the front gate, failed to have adequate security, did not prevent dangerous persons from gaining access to the premises, and failed to protect and warn residents of dangerous conditions and criminal acts.

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palm trees2As we discussed in a recent post, an injured person does not usually have the right to sue the insurance company of the person or business that caused the injury. There is a small exception to this rule, however. In situations when an injured person (or, in the case of death, his or her family) has filed a lawsuit against the negligent person or business and obtained a judgment, but the insurance company refuses to pay the injured person the money to which he or she is entitled under the judgment, the injured person may be able to sue the insurer directly.

In the case of Morales v. Zenith Insurance Company, the family of a man who was killed on the job filed suit against the man’s employer.  According to the family’s complaint, the man was killed by a falling palm tree while working for a landscaping firm. The family filed a wrongful death lawsuit in state court in 1999, alleging that the landscaping firm’s negligence had caused the man’s death. A default judgment was entered against the firm. Later, a jury trial was held to assess damages, with the family ultimately being awarded $9.525 million.

The Workers’ Compensation Settlement

Meanwhile, the family accepted workers’ compensation benefits from the landscaping firm’s insurance company, which insured the firm for both workers’ compensation (“Part I”) and employer liability insurance (“Part II”). The employer liability insurance provision contained an exclusion to the effect that there would be no coverage for any obligation under workers’ compensation law. In 2003, the insurance company made a “final lump sum payment” to the family in exchange for a settlement agreement that purported to constitute an election of remedies by the man’s estate with respect to both the employer and the carrier. Including the lump sum, the family received a total of $100,000 in workers’ compensation benefits.

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boat2If you or a loved one has been injured due to another party’s negligence, you may be surprised to know that, in most cases arising under Florida law, you do not have a legal right to sue the responsible party’s insurance company directly. This is true even if you were contacted soon after the accident by a representative of the insurance company and have never even spoken directly with the person or business that caused your injury.

The rationale for the “nonjoinder statute,” as it is called by the courts, is that a jury should not be told whether a defendant has liability insurance because an award of damages would be more likely if the jury knows that an insurance company (rather than the negligent party) would actually be writing the check at the end of the day. In the recent case of Starr Indemnity & Liability Co. v. Morris, the plaintiff attempted to find a way around this general rule by asserting a breach of contract claim, rather than a negligence action, against the insurance company under a medical payment provision.
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