Articles Posted in workplace accidents

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a long exposure on the side of a highway (the white lines are car headlights)If you have been hurt in an accident and are hoping to recover compensation from the party or parties responsible for your injuries, you should know that there are many factors that go into determining whether you can bring suit against a particular defendant and, if so, the extent to which you can recover losses such as lost wages, medical expenses, and pain and suffering.

This means that two people who have sustained exactly the same injury (or two families who have lost a loved one in an accident) may get a very different result, depending upon how the accident occurred and the identity of the possible defendants in a lawsuit arising from the accident.

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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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A recent article about a jury verdict caught my eye as a motorcyclist and an Aventura wrongful death attorney. According to the South Florida Sun-Sentinel, the family of a man killed in a 2006 motorcycle accident has been awarded $8.48 million in court. The family of John Potts, 51, sued James Harvey for failing to yield at a flashing red light as Potts crossed the intersection. Harvey’s Hummer hit the motorcycle Potts was riding, killing him before he arrived at the hospital. The jury verdict includes $4 million for Tracey Potts, the victim’s widow; $2 million for each of their two daughters; and $480,000 in lost income for the family. Harvey’s attorney could not be reached for comment, but the Potts family’s attorney said they were happy with the verdict.

The accident took place Aug. 8, 2006 at the intersection of Beeline Highway and Jog Road outside West Palm Beach. Potts was on the highway, approaching a flashing yellow light, while Harvey was on Jog Road approaching a flashing red light. Witnesses said Harvey slowed for the red light but did not stop, causing him to “T-bone” Potts as his motorcycle passed through the intersection. Potts was not wearing a helmet. Harvey was on the job at the time, as a self-employed environmental lobbyist. The Potts family’s attorney said Harvey’s defense first focused on suggesting that Potts should have anticipated the cross traffic. Harvey’s attorney also argued that a construction company working on the Florida Turnpike should have put a green/yellow/red light at the site.

As a Miami Gardens wrongful death lawyer, I’m pleased that the jury apparently did not believe these arguments. It is unfortunately common in wrongful death cases for the defendant to blame the victim. However, Florida law requires drivers to treat flashing red lights as if they were stop signs, and Harvey reportedly did not do that. That means he ran the red and is legally responsible for the results. I’d also like to discuss the fact that Harvey was at work at the time of the accident, which usually means the employer shares legal responsibility. That might seem like a moot point when the driver is self-employed, but in fact, it might mean Harvey’s business assets as well as his individual assets are available to pay a legal judgment. In this case, that could mean business insurance as well as his individual auto insurance.

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Federal investigators are looking into an accident at an Orlando theme park that hospitalized a worker with serious injuries, the South Florida Sun-Sentinel reported July 14. The U.S. Occupational Safety and Health Administration said it would look into the July 1 incident after receiving a “referral” from an unnamed informer. The referral did not come from the theme park itself, the newspaper said; it is not required to report accidents that resulted in no deaths and fewer than three hospitalizations.

According to the newspaper, the accident happened at around 7:30 a.m., before the Islands of Adventure theme park opened for the day. Under circumstances the paper did not report, the employee was hit by one of the cars of the Dueling Dragons roller coaster ride. The employee suffered serious injuries, but the newspaper did not go into detail. Universal said it was already involved in the investigation, would continue to cooperate and did not believe the accident showed the ride’s safety was compromised.

Most people think of theme park injuries as a danger to the public — not to employees. But theme park workers may actually be more likely to be hurt than their visitors, because they spend so much more time there. Most theme parks are safe, but as a Boca Raton workplace injury attorney, I know that accidents do happen — and they can be extremely serious. A report from the Orlando Sentinel shows that Islands of Adventure alone has seen 42 reported South Florida theme park injury lawsuits since 2001, including cases of neck injury and broken bones as well as unspecified “serious injuries.” While some of these injuries were simple slip and falls, others involved the rides — and one report said a stunt man fell on a woman, suggesting that the employee may have been injured as well.

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