South Florida Injury Attorney Blog

The alleged failure of software used to monitor police vehicles, which formed the basis of a wrongful death lawsuit against the software developer, is not covered by the developer’s liability insurance policy, according to the U.S. District Court for the Southern District of Florida in Maryland Casualty Company v. Smartcop, Inc., et al. The estate of a sheriff’s deputy killed in a police vehicle sued the software developer, and the developer’s insurance company filed a declaratory judgment action to establish its obligations to its insured. The court granted the insurance company’s motion for summary judgment on Friday, September 21, 2012, ruling that the underlying lawsuit was excluded from coverage under the policy.

Maryland Casualty Company sued Smartcop, which did business as Consolidated Technology Solutions (CTS), and Lazaro Guerrero, who represented the Estate of Melissa Powers, to determine its duty to defend or indemnify CTS in a state lawsuit filed by Guerrero. The state lawsuit arose from the death of Powers, a Monroe County sheriff’s deputy, in a car accident in Key Largo on the night of June 22, 2010.

According to the Orlando Sentinel, Powers was driving in emergency mode at about 106 miles per hour when she swerved to pass another vehicle. She reportedly lost control of her patrol car and hit a parked truck. Monroe County subsequently changed its policies regarding when its officers may drive in emergency mode. CTS had provided software to the county sheriff’s department to monitor its vehicles in 2002. Guerrero filed a lawsuit against various parties, including CTS, alleging that Powers’ death resulted from CTS’s negligent failure to maintain or update the software.

Continue reading " Florida Court Rules on Question of Insurance Coverage for Negligence and Wrongful Death Claim: Maryland Casualty Company v. Smartcop, Inc. " »

A Florida federal court recently ruled on a question of whether an insurance company was obligated to defend or indemnify a construction company in a class action products liability lawsuit. The court granted summary judgment to the plaintiff insurance company in First Specialty Insurance Corp. v. Milton Construction Company in July 2012, finding that a Total Pollution Exclusion endorsement in the company’s commercial general liability policies excluded coverage for a claim regarding allegedly defective drywall.

The defendant, Milton Construction Company, is also a defendant in a class action lawsuit in the Eastern District of Louisiana, Block, et al v. Gebrueder Knauf Verwaltungsgesellschaft, K.G., et al, alleging both personal injuries and property damage resulting from defective Chinese drywall. According to the class action suit, sulfur compounds exited the drywall and injured people in the affected properties, such as eye and throat irritation, nausea, fatigue, breathing difficulties, and neurological damage. The compounds also allegedly damaged metal in the affected properties through “rapid sulfidation,” including air conditioning and refrigerator coils, electronic equipment and appliances, and copper wiring. Milton allegedly installed defective Chinese drywall in units at Miami’s San Lorenzo Condominium building, giving rise to claims in the class action lawsuit.

Milton had two commercial general liability insurance policies, issued by the plaintiff, First Specialty Insurance Corp., during the time period covered by the class action lawsuit. Both policies included coverage for “bodily injury” or “property damage” claims with a “Total Pollution Exclusion Endorsement.” The endorsement excluded coverage for injury or damage claims arising from the discharge of pollutants, defined as any “solid, liquid, gaseous, or thermal irritant or contaminant,” such as smoke, fumes, chemicals, or waste. Milton requested defense and indemnification from First Specialty in the drywall class action suit. First Specialty denied coverage under the pollution endorsement and filed suit in the Southern District of Florida seeking a declaratory judgment affirming its position.

Continue reading " Lawsuit Over Allegedly Defective Chinese Drywall Not Covered by Commercial General Liability Insurance Policy, Court Rules " »

A Florida federal court dismissed one cause of action in a passenger's lawsuit against a cruise line, but allowed two other causes of action to proceed. The plaintiff in Stewart-Patterson v. Celebrity Cruises, Inc. alleged that the cruise line was liable for her slip-and-fall accident aboard the ship, as well as for injuries caused by a doctor that ship personnel compelled her to see while the ship was docked in Colombia. The court dismissed one of the plaintiff’s two causes of action for premises liability, but denied the defendant’s motion to dismiss her cause of action for medical negligence.

The plaintiff allegedly slipped on a wet substance while descending a staircase aboard a cruise liner owned by Celebrity Cruises. She claimed in her lawsuit that the fall caused her to fracture her left ankle. She received treatment in the ship’s infirmary, but was sent ashore for an orthopedic consultation with a doctor in Colombia. She alleges that ship personnel told her she had to undergo the consultation in order to remain on the cruise. Her alternatives, she claims, were to sign a full release of liability with the cruise line or find another way home. The Colombian doctor allegedly misdiagnosed her injury, which aggravated her condition and caused further damage.

The plaintiff filed suit against Celebrity Cruises in the U.S. District Court for the Southern District of Florida. She asserted three causes of action: a negligence claim based on premises liability; negligent mode of operation, claiming that the defendant breached a duty to repair the dangerous condition before an accident took place; and medical negligence, for what she characterized as the defendant’s poor choice of a doctor in Colombia. The defendant moved to dismiss the second and third causes of action, arguing that the negligent mode of operation claim was not recognized by admiralty law and was duplicative of her other negligence claim, and that it could not be held vicariously liable for the actions of the Colombian doctor.

Continue reading " Florida Court Rules on Premises Liability and Medical Negligence Claims Against Celebrity Cruises " »

A man working on a cruise ship filed suit against the cruise line company and the companies that allegedly employed him, asserting various injuries that he claimed arose from medical treatment aboard the ship. The defendants in Petrovic v. Princess Cruise Lines, Ltd., et al filed motions to dismiss, alleging under Federal Rule of Civil Procedure 12(b)(6) that the plaintiff failed to state a claim for which the court could grant relief. The court agreed with the defendants and granted their motions to dismiss the suit, giving the plaintiff time to revise his pleadings.

Zeljko Petrovic worked aboard the M/S Diamond Princess, a cruise ship owned and operated by Princess Cruise Lines, Ltd. He claims that he was injured on or about August 6, 2010 as a result of negligent medical treatment provided by the defendants. His complaint specifically states that “the Defendants” failed to provide adequate medical care, but does not identify one or more specific defendants as the negligent party or parties. The ship was docked at a United States port when he fell ill and went to the ship’s hospital for treatment. He claims that the negligent medical treatment exacerbated his illness and caused permanent damage to his heart.

Petrovich filed suit in the U.S. District Court for the Southern District of Florida against Princess and three other companies: Steiner Transocean Limited, Steiner Leisure Limited, and Steiner Transocean U.S., Inc. The complaint identifies Petrovich as a seaman working in service of a vessel. It asserted several causes of action, including general negligence under the Jones Act, unseaworthiness of the ship, and failure to provide maintenance and proper medical treatment.

Continue reading " Seaman's Lawsuit for Maritime Injuries Dismissed Upon Cruise Line's 12(b)(6) Motion " »

A state court in Miami-Dade County, Florida will decide a woman’s dispute over insurance coverage for a premises liability claim, after the case had moved around between state and federal courts. The defendant in Taylor v. Admiral Insurance Company, et al removed the case to federal court based on diversity jurisdiction. New evidence implicated another company, but joinder of the company destroyed diversity. The court had to decide whether to permit the joinder of the company as a defendant or remand the case to state court.

The plaintiff, Kerry Taylor, attended a private function at Villa Vizcaya, a property owned by Miami-Dade County, on April 4, 2006. She allegedly fell from a broken step and sustained injuries that required ongoing treatment, including multiple surgeries. Taylor sued the county, Vizcaya Museum & Gardens, and Villa Vizcaya to recover damages for her injuries, alleging in part that they failed to warn of a dangerous condition on the property. The county requested defense and indemnification from Admiral Insurance Company.

Months earlier, the company planning the April 4, 2006 private event obtained a general liability insurance policy from a company called Brown & Brown. The policy, which purported to cover claims arising from the April 4, 2006 event, had Admiral as its general liability insurer, and named Villa Vizcaya as an additional insured. After Taylor filed her lawsuit, Admiral denied coverage of the claim, alleging that none of the parties to the lawsuit were named as insured parties under the policy.

Continue reading " Premises Liability Claim Leads to Insurance Dispute, Shifting Jurisdiction Between Florida State and Federal Courts " »

The Florida Supreme Court reviewed the “dangerous instrumentality” doctrine, a rule governing objects widely known to be dangerous, in Rippy v. Shepard. The trial court ruled that Florida’s dangerous instrumentality doctrine does not apply to farm tractors and dismissed the plaintiff’s complaint. The appellate court affirmed the dismissal. The Florida Supreme Court disagreed, however, and quashed the lower court rulings in favor of the plaintiff’s argument.

James Earl Rippy was injured by a farm tractor owned by James Shepard. Rippy sued Shepard, alleging that Shepard was liable under the dangerous instrumentalities doctrine. Rippy argued that a farm tractor should be included in the state’s definition of a dangerous instrumentality because state caselaw already included motor vehicles in the dangerous instrumentality doctrine, and because the Florida Legislature defines a tractor as a motor vehicle and regulates its use as such. The trial court rejected this argument and granted the motion to dismiss filed by Shepard. Rippy appealed to the First District Court of Appeals, and then to the Florida Supreme Court.

The seminal Florida case defining the dangerous instrumentality doctrine is Southern Cotton Oil Co. v. Anderson, 86 So. 629 (Fla. 1920). The doctrine is an English common law principle that applies to any object known to have qualities or properties that make it “peculiarly dangerous in its operation,” as the court held in S. Cotton. The court in that case included motor vehicles in its definition of a dangerous instrumentality, specifically in the context of their use on public roadways. The court imposed vicarious liability on a motor vehicle owner if the owner entrusted it to someone who caused an accident. The purpose of the doctrine is to ensure that people who entrust their vehicles to others do so responsibly, by imposing financial responsibility for any accidents caused by the driver’s negligence.

Continue reading " Florida Supreme Court Rules that Dangerous Instrumentality Doctrine Applies to Motor Vehicles Other than Automobiles " »

The Florida Third District Court of Appeals ruled in favor of the state’s Medicaid program in Garcon and Robinson v. Agency for Health Care Administration, after the state sought reimbursement from a private settlement received by an injured claimant. The court affirmed the state’s position that Medicaid should be the “payor of last resort” in cases of injury where other parties are principally liable for damages. It therefore affirmed a lower court ruling ordering the Medicaid claimant to reimburse the program, out of a settlement received from a tortfeasor, for the amount it had paid for past medical expenses.

One of the appellants, Robinson, suffered permanent and total disability as a result of a gunshot wound, according to the Court of Appeals ruling. Medicaid paid him $244,590.57 for past medical expenses, an amount all parties agreed was reasonable. Robinson later received a settlement payment from a tortfeasor for $1 million. The settlement included a stipulation that the compensation amount covered both past and future medical costs, but did not cover any noneconomic damages like pain and suffering. Medicaid claimed a lien on the settlement for the total amount of its payment, $244,590.57, and the case went before a trial court. The trial court ruled in the state’s favor.

Florida’s Medicaid Third-Party Liability Act specifically states that, in the event of an injury for which another party is liable, Medicaid assistance is secondary to all other sources of compensation for past medical expenses. The statute provides that, if Medicaid makes payment to an injured party, and the injured party then recovers damages from another party, then Medicaid must be reimbursed for its payments from the newly-discovered compensation. It even states that such reimbursement shall occur before payment to any other lienholder.

Continue reading " Florida Court of Appeals Rules on State Medicaid Program's Right to Reimbursement from Private Settlement for Personal Injury Damages " »

A woman in Savannah, Georgia has filed a lawsuit against a local bail bond company, alleging that a bail bondsman in its employ arrested her without cause, then refused to release her or take her home, once the mistake was made clear, without payment. The lawsuit claims several intentional torts, including false arrest, imprisonment, and intentional infliction of emotional distress.

The plaintiff, Becki Terry, alleges that a bail bondsman for Savannah Bail Bonding, Inc. falsely arrested and imprisoned her on February 27, 2012. According to her complaint, she was at home with her fiance and her roommate that morning. At about 7:30 a.m., her roommate answered a knock on the door. The bondsman did not identify himself at the time, but said he was looking for Terry. The roommate allowed the bondsman in, and he began searching for Terry. He reportedly found her in an undressed state and told her she was under arrest. As Terry tried to explain that she had no charges pending against her, the bondsman allegedly grabbed and handcuffed her, still offering no explanation of the charges. Terry claims that her fiance had to beg the bondsman to allow her to get dressed. Once she was dressed, the bondsman took her to his car and drove her to the Chatham County Jail.

Continue reading " Woman Sues Bail Bondsman for False Arrest After Bounty Hunter Arrests Her by Mistake and Allegedly Demands Gas Money " »