South Florida Injury Attorney Blog

After a woman received an insurance settlement for injuries she sustained in a car accident, a dispute arose between the insurance company and the hospital that treated her over payment of the hospital’s lien. In many personal injury cases, receipt of a settlement or judgment is far from the end of the case. Medical providers and insurers may have claims to all or part of a settlement or judgment amount, and they sometimes fight amongst themselves for how to split a limited amount of money. In Shands Teaching Hospital v. Mercury Insurance, an insurance company asked the Florida Supreme Court to rule on the constitutionality of laws allowing private hospitals to impose primary liens on injury settlements. The court found the state law to be unconstitutional, but upheld the county ordinance.

The case originated with a claim for personal injuries by a woman injured in a car accident. The woman sought treatment at Shands Teaching Hospital in Gainesville, Florida, and received care valued at $38,418.20. A law enacted by the Florida Legislature known as the Alachua County Lien Law (the “Lien Law”), and an ordinance passed by the county known as the Alachua County Lien Ordinance (the “Ordinance”), enabled the hospital to perfect a lien against any potential settlements or judgments that the woman might receive as a result of the accident.

The driver who struck the woman had an auto insurance policy through Mercury Insurance Company of Florida that provided $10,000 in bodily injury coverage and $10,000 in Personal Injury Protection (PIP). Mercury settled for $10,000 in exchange for her signed release. The release did not include Shands, which had already perfected its lien. Shands sent Mercury a copy of its lien, and Mercury sent it $10,000, representing the remaining amount available under the policy. Alleging that Mercury had impaired its lien, Shands sued Mercury for the remaining lien amount, $28,418.20.

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Federal and state officials believe that a contaminated medication from a Massachusetts pharmacy is responsible for an outbreak of fungal meningitis that has killed at least twenty-four people and sickened more than three hundred. The pharmacy has ceased operations and issued a recall of the medication, and lawsuits against it have already begun. In some cases, victims are suing their health care providers along with the pharmacy in an interesting blend of products liability and medical malpractice theories.

The Centers for Disease Control and Prevention (CDC) has reportedly identified an infectious fungal species, Exserohilum rostratum, in multiple victims. This species can infect the spinal cord, causing fungal meningitis. Unlike the bacterial or viral varieties of meningitis, the fungal kind is not contagious between people. It spreads by direct contact with an infected surface or substance, such as soil, or through direct introduction to the bloodstream, such as through an injection. Symptoms often begin with a sore, stiff neck, and patients can develop headaches, nausea and vomiting, fever, confusion, and photophobia. In some cases, an infection can result in long-term injury or death.

As of October 24, 2012, the CDC and the U.S. Food and Drug Administration (FDA) had received reports of 328 cases of fungal meningitis, including twenty-four fatalities, in eighteen states. Florida has twenty-two reported cases, with three deaths. Vials of the injectable drug methylprednisolone acetate appear to be the source of the infection. The drug is a steroid-based anti-inflammatory prescribed for the treatment of back pain. The vials originated from the New England Compounding Center (NECC) in Framingham, Massachusetts, according to health officials.

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A cement truck struck and injured a flagman just outside a construction site. When the flagman sued the driver and the subcontractor that employed him, a battle began over the apportionment of fault among the plaintiff, the general contractor, and various subcontractors. The trial court ruled that the defendant subcontractor was not entitled to an apportionment of fault, as its contract appeared to make it solely responsible for worker safety. The Fourth District Court of Appeals disagreed in Continental Florida Materials, Inc. v. Kusherman, reversing the trial court’s ruling and remanding the case so the court could apportion fault among the various contractors.

The accident occurred when a concrete truck hit a flagman while driving in reverse, knocking him to the ground and running over his legs. The construction foreman, who was employed by the general contractor, had instructed the truck driver to exit the construction site, which the driver had to do in reverse. The foreman was not formally responsible for directing traffic within the site, but the general contractor was responsible for controlling street traffic around the site. The plaintiff was the only flagman directing traffic at the time, and he claimed that he was turned away from the truck and did not hear a backup indicator. By the time he saw the truck, the plaintiff claimed it was three to four feet away and he did not have time to avoid being hit.

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A series of automobile accidents along Interstate 75 involved about forty-seven vehicles and injured more than fifty people. No fatalities were reported, but the crashes caused extensive damage and forced the closure of the highway for hours. Rainy weather and low visibility reportedly played a major role in the accidents. The state of Florida currently faces multiple lawsuits arising from another series of crashes on a different stretch of I-75 in January, also allegedly resulting from weather conditions.

The Sarasota Herald-Tribune reports that the accidents began occurring around 3:00 p.m. on Friday, October 5, 2012, in the southbound lanes of I-75 and the University Parkway overpass along the county line between Sarasota and Manatee Counties. Heavy rain conditions caused significantly reduced visibility. A crash involving at least eight vehicles occurred on the overpass, injuring at least ten people. Additional accidents happened on the highway below. The precise sequence of events may never be known, but at least two semi trailers were involved, one of which leaked fertilizer onto the road. A jackknifing trailer on the highway caused a series of crashes as cars tried to avoid the wreckage.

In all, forty-seven cars and other vehicles were damaged. The wreckage stretched for about half a mile from the overpass, and people remained stranded on the highway for hours. About fifty-four people were injured, with two airlifted to a trauma center, thirty-two people taken by ambulance to hospitals, and about twenty people receiving treatment at the scene. None of the injuries were fatal or life-threatening, a fact that a spokesperson for the Sarasota County fire department called “miraculous.” Both she and a lieutenant with the Florida Highway Patrol (FHP) said it was the largest automobile accident either of them had ever seen.

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A federal statute regulating locomotive safety preempts a state products liability and wrongful death lawsuit, according to the U.S. Supreme Court. A former railroad worker, and later his estate, sued multiple companies, alleging that exposure to asbestos in their products while he was a railroad employee caused his cancer. In Kurns v. Railroad Friction Products Corp., 132 S. Ct. 1261 (2012), the Supreme Court affirmed lower court judgments dismissing the lawsuit due to federal preemption.

George Corson, the decedent, worked for nearly three decades as a machinist and welder for the Chicago, Milwaukee, St. Paul & Pacific Railroad. He worked in locomotive repair, installing brakeshoes; and in locomotive maintenance, removing boiler insulation. He ceased employment with the railroad in 1974, and received a diagnosis of malignant mesothelioma in 2005. He and his wife filed a lawsuit in Pennsylvania state court in 2007 naming fifty-nine defendants, including Railroad Friction Products Corporation (RFPC) and Viad Corp. The lawsuit alleged that RFPC distributed products containing asbestos, and that Viad succeeded a company that manufactured and distributed products containing asbestos. The plaintiffs asserted causes of action for defective design and failure to warn of danger. Corson died after filing suit, and the court substituted his executor, Gloria Kurns, as a plaintiff.

The defendants removed the case to the federal district court for the Eastern District of Pennsylvania. That court granted their motion for summary judgment based on the argument that the Locomotive Inspection Act (LIA), 49 U.S.C. § 20701 et seq., preempted state claims for damages. The statute, enacted in 1911, requires “railroad carriers” to maintain locomotive equipment in safe working order. 49 U.S.C. § 20701(1). The Supreme Court held that the LIA preempts state claims for injuries by both railroad passengers and rail workers in Napier v. Atlantic Coast Line Railroad Co., 272 U.S. 605 (1926). The Third Circuit Court of Appeals affirmed the district court’s ruling, and the plaintiffs appealed.

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Trampolines are a common feature in the backyards of homes with children across the country. According to the American Academy of Pediatrics (AAP), however, they pose a significant risk of injury to children and teens, including traumatic brain injuries and spinal fractures. Estimates of the total number of injuries caused by trampoline-related accidents every year extend into the hundreds of thousands. The trampoline was not originally intended for recreational use, but rather to train athletes and pilots. The AAP therefore advises against the recreational use of trampolines, especially in a home environment.

A competitive gymnast named George Nissen patented the trampoline in 1945 as a “tumbling device.” He intended to use it to train gymnasts and acrobats, and he expanded its use to include training of military pilots. Once manufacturers learned how to produce trampolines that could be broken down, shipped, and reassembled, the recreational trampoline was born. The AAP’s Council on Sports Medicine and Fitness published a study on trampoline safety among children and teens in the October 2012 issue of the AAP’s journal, Pediatrics. It estimates that nearly 100,000 injuries resulted from trampoline use in 2009, with about 3,100 hospitalizations and deaths.

The most common injuries resulting from trampoline use, according to the AAP, occur in the lower extremities. These account for one-third to half of all trampoline-related injuries, and largely involve sprains or fractures of the ankle. Injury to the cervical spine is a common result of trampoline accidents, caused when a trampoline user lands incorrectly or falls off the trampoline entirely. Between ten and seventeen percent of trampoline-related injuries consist of head and neck injuries, many of which resulted in some degree of physical or cognitive impairment. The AAP states that 0.5% of all trampoline accidents result in permanent neurological impairment.

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A Connecticut woman on vacation in Pompano Beach, Florida died in a parasailing accident in August. Her harness allegedly failed, causing her to fall about two hundred feet to the water. The accident prompted an investigation by state and federal authorities, which is still underway. An organization that advocates for parasailing safety is calling for regulations related to the activity’s safety. Few regulations at the federal, state, or local levels address the many safety concerns surrounding the activity, which can be popular among beach vacationers in Florida.

Parasailing involves one or more people towed by a boat or other vehicle while harnessed to a parasail wing that resembles a parachute. As the vehicle moves forward, the parasailer is lifted into the air by the parasail. The parasailer has little to no control over his or her own movement while in the air. A sufficiently powerful vehicle can enable two or more people to parasail in tandem.

During the afternoon of Wednesday, August 15, 2012, a husband and wife were parasailing in a side-by-side harness, towed by a motorboat. The woman’s harness reportedly broke while they were between 150 and 200 feet in the air. The boat captain had to allow the man to descend before retrieving his wife from the water. She was pronounced dead at Broward Health North later that day, with blunt trauma and asphyxiation listed as the causes of death.

The Miami Herald reported on the captain of the boat, who has a valid captain’s license from the U.S. Coast Guard (USCG). The USCG is investigating the matter with the Florida Fish and Wildlife Conservation Commission. The National Transportation Safety Board (NTSB) also joined the investigation, making this the first investigation of a parasailing accident at such a high level of government. The investigation is reviewing both the equipment itself and the possibility of operator error. It remains unknown, therefore, whether defective equipment or negligence contributed to the accident.

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Allstate Insurance Company published its eighth annual report on “America’s Best Drivers” this summer. The report ranks two hundred American cities based on the frequency with which drivers have auto collisions and the overall likelihood of accidents. It includes four cities in south Florida, and none of them receive a high ranking. Other Florida cities rank higher on the list, but for the most part, not much higher. This is largely due to population and traffic density in large metropolitan areas like Miami and Tampa, which can lead to more frequent car collisions. The study, while not necessarily a representative sample of all drivers in south Florida or the rest of the country, can still provide useful guidance to understand the risks of car accidents in the area.

Actuarial data, based on claims for car accidents made to Allstate, formed the basis of the report. Allstate is one of the largest providers of car insurance in the country, but by its own estimate it only accounts for ten percent of auto policies. For this reason, the report may not impress scientists or statisticians, but it can still offer, as Allstate says, a “realistic snapshot” of driving conditions around the country. Researchers identified two key indicators for ranking the “Best Drivers”: the length of time an average driver is likely to go between accidents, and the percentage difference between the likelihood of an accident in a particular city and the national average. Cities with the “Best Drivers” have the longest period of time between accidents and the lowest likelihood of accidents relative to the rest of the country.

This was Allstate’s eighth annual “Best Driver” report, and it has noted a tendency for smaller cities in less populous areas to have “better” drivers than larger, more densely-populated areas. This year, it declared Washington, DC to have the “worst” drivers, and Sioux Falls, South Dakota to have the “best.” Denser, more populated cities present different challenges for drivers than smaller cities, including a greater number of potential distractions, heavier traffic, and less-predictable road conditions.

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