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.

Continue reading "Florida Supreme Court Rules on Conflict Between Hospital Liens and Insurance Coverage in a Car Accident Case: Shands Teaching Hospital v. Mercury Insurance" »

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 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 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" »

The Florida Legislature passed a law, the Motor Vehicle Personal Injury Protection Insurance Act, earlier this year that purportedly reforms the requirements and procedures for personal injury protection (PIP) insurance. The law’s stated purpose is to cut down on fraud in PIP cases that was allegedly driving up costs. Most of the provisions of the new law will take effect on January 1, 2013, but some state regulators are already predicting that the law will save money for both insurers and consumers. The law imposes limits on time periods to seek treatment and on the types of compensable injuries, and consumer advocates predict a negative impact on consumers.

Florida first adopted a PIP law in 1972, according to the Insurance Journal, in order to ensure that people injured in automobile accidents had quick access to resources for medical treatment. Drivers must maintain PIP coverage as part of their auto insurance policy. Under the “no fault” PIP law, a driver’s insurer must pay up to $10,000 to its insured after an accident, regardless of who was at fault, to cover medical expenses and lost wages. The Insurance Journal claims that Florida, particularly in Miami and Tampa, leads the nation in “staged accidents.” Fraudulent PIP claims are allegedly responsible for a $1.4 billion increase in PIP costs in Florida since 2008.

Continue reading "Florida Enacts Changes to Personal Injury Protection Insurance Requirements; Some Predict Savings on Premiums" »

A dispute over insurance coverage has developed between a Florida homeowners’ association (HOA) and its insurer after the mother of slain 17 year-old Trayvon Martin claimed compensation for the death of her son. Martin was shot and killed by a resident in the neighborhood represented by the HOA. The insurance company filed a declaratory action in an Orlando federal court asking the court to declare that it is not responsible for covering the HOA on the mother’s claim.

The Trayvon Martin case has become well-known and highly controversial. Martin was visiting his father, who lived in a gated community in Sanford. The teenager was allegedly walking home from the store on the night of February 26, 2012, when he was shot and killed by 28 year-old George Zimmerman, a neighborhood watch volunteer who claimed that he acted in self-defense. Martin’s family says that Zimmerman singled their son out because he was African-American, followed him through the neighborhood, and incited an altercation. Police arrested Zimmerman forty-four days after Martin’s death and charged him with second-degree murder. Zimmerman has entered a plea of not guilty and is out of jail with a $1 million bond.

Martin’s mother, Sybrina Fulton, filed a claim with Travelers Insurance, which covers the Retreat at Twin Lakes HOA. She requested in excess of $75,000 in damages for Martin’s death. She also filed a claim with the Florida Bureau of Victim Compensation, and was approved in March for a payment from the Crimes Compensation Trust Fund. Her claim to Travelers drew a quick response.

Continue reading "Insurance Dispute Arises in Civil Claim for Compensation in Trayvon Martin Case" »

In a recent comparison performed by my firm in Fort Lauderdale we have seen that in some cases motorcycle accident victims we have represented have received larger settlements when compared to those who did not seek legal counsel from an accident attorney…..

Firstly once you have been involved in a motorcycle accident you should seek legal counsel from an experienced Fort Lauderdale accident attorney. Once you have retained an attorney he/ she will start to gather information to start building your case. They will request that you provide all your medical bills and records as depending on the severity of your injuries there maybe loss of wages involved. Once you have provided your accident attorney with these records they will review and interpret these records making them understandable for the court to comprehend the severity of the injuries you may have incurred. That is why proper recording of all your injuries is extremely important.

You should have pictures taken on the scene of the accident and the surroundings areas, pictures of all your injuries should also be taken, pictures of the damage to your bike and the other vehicle that was involved in the accident should also be taken as this will assist the attorney in building a strong case on your behalf.

Representing motorcycle accident victims over the years we have found that there are additional factors to be considered as part of your case like:

• Work environment: Your attorneys will not the difference in your performance at work?
• Home environment: How your injuries have affected your home life
• Witnesses: who will testify about your life changes at work and at home since you received injuries from the bike accident
• Extracurricular activities: activities and events that you are not able to participate in because of your injuries?

Hiring of an experienced accident attorney is important should you or a loved one be involved in an accident to ensure you receive the proper compensation you deserve. Whether your or a loved one has been the victim of car accident injury, always seek counsel from an experienced Automobile Injury Attorney to ensure that your rights as the victim are protected and that you receive the proper compensation. Contact us at 954 431 8100 or 305 614 9186 to set up a FREE consultation to discuss your legal options.

The family of a former Polk County commissioner who was killed in an auto accident last year has filed a wrongful death suit, the Lakeland Ledger reported Jan. 13. According to the article, Marlene Duffy Young was killed in May when an oncoming driver crossed the center line and hit her vehicle head-on. The driver, William Boyd Johnson, was also killed, and Young's husband and adult daughter were hurt. Blood tests on Johnson revealed that he had a BAC of .077 (just under the legal limit), as well as Valium and cough medicine in his body.

The wrongful death lawsuit names Johnson's wife as a defendant, but it also names State Farm, the Young family's auto insurer, and their insurance agent. According to the article, the Youngs are suing State Farm and the agent because the agent allegedly ignored their request for "stacked" underinsured motorist auto insurance. The Johnsons did not have enough insurance to cover the costs of the accident, and the Youngs contend that State Farm is wrongfully refusing to make up the difference, as it would be required to if the insurance had been stacked as they had requested.

"Stacking" your auto insurance means that the upper limit of your insurance policy increases by the number of cars you are insuring. For example, let's say you have uninsured/underinsured motorist coverage with limits of 50,000/100,000. If you have two cars and you do not choose to stack, the limit is 50/100 on each car. But if you choose to stack, the insurance limits double to 100/200. If you have three cars, they would triple to 150/300. This increases your premium, of course. As you can see, this could make a substantial difference to a family like the Youngs, who had three of its members in the hospital at the same time after the accident. The cost of treating even one very serious injury can easily reach six figures.

The Youngs claim that State Farm wrongfully refused to provide the materials necessary to sign them up for the stacked coverage despite their request. Unfortunately, that is not an unrealistic claim. Despite what many people think, insurance companies are not here to help their customers -- they're here to make a profit, like all businesses. When insurance companies have to pay out a very large benefit, some of them look for excuses to avoid it, even when their own contract clearly obliges them to pay. This is called insurance bad faith, and as a breach of the contract you and the insurer both signed, it is illegal.

As a Broward County auto accident lawyer, I advise my clients to treat insurance adjusters politely but never sign, record or admit anything that makes them uncomfortable. And whenever necessary, I vigorously defend my clients from insurance bad faith and other unfair or illegal maneuvers by insurers. If you or someone you love has been victimized twice by an auto accident and an insurance company that won't do the right thing, my firm, Cohn, Smith & Cohn, can help. To set up a free consultation on your legal rights and your options, please contact us online or call (954) 431-8100.

A family in the Tampa area is upset after employees of the dealership that was supposed to repair their car got it involved in an auto accident in St. Petersburg. Tampa Bay’s WTSP reported Dec. 10 that the Fisher family is asking for a new car after Crown Honda dealership employees involved their Honda Civic in an accident while test driving the vehicle. The family had brought in the car to investigate a “check engine” light and signed a standard form allowing the dealership to test drive it. That’s what the dealership says it was doing when another driver ran a red light and smashed into the car, doing $7,000 worth of damage.

No injuries were reported, fortunately, and the article does not suggest that the dealership employees were at fault for the crash itself. However, on hearing about the accident, the family immediately noticed that the time of the accident was 10:21 p.m. Asked what the employees were doing with the vehicle so late, the dealership admitted that they took it to an after-hours flag football game, to check for problems as they drove. The dealership says it frequently sends technicians home with vehicles in for repair, in order to see if they can reproduce the reported problems, and that it notifies its customers when it does this. The Fishers claim they got no such notification.

Regardless of the legalities, full disclosure seems like the best policy if dealerships plan to take repair cars out after hours. But depending on the circumstances, the dealership might also be liable in any Florida auto accident lawsuit the Fishers choose to file. The article notes that the mother of the family signed a waiver authorizing a test drive -- but she doesn’t feel that the 10 p.m. football trip counts as a test drive. A jury might agree, especially if the language of the waiver was misleading or there’s evidence that “test drives” generally take place during business hours. It’s hard to say without more information than the article could provide.

However, what is clear is that the Fishers still have a claim against the driver who ran the red light. In Florida and other states, it doesn’t matter whether the car is borrowed; a driver who causes an accident is still liable for any damage and injuries. If the at-fault diver is uninsured, victims may still be covered by their own UM/UIM or comprehensive auto insurance, even if none of the insureds were driving. If insurers refuse to pay these legitimate claims, Cohn, Smith & Cohn can help accident victims file a Florida auto accident lawsuit to claim the settlement that’s rightfully and legally theirs. If you’re in this situation and would like to speak to an experienced Florida attorney about your options, please contact us to set up a free consultation.

If you ride a motorcycle in Florida -- or plan to soon -- you’ve probably heard about the new state law requiring new riders to pass a training course before they get their licenses. If you haven’t, here’s a brief summary: People of any age who would like a brand-new motorcycle endorsement on a Florida license must first pass a Basic RiderCourse from the Motorcycle Safety Foundation. Before, this was only true for riders under 21. People who already have motorcycle endorsements aren’t affected. The Florida DMV has more information.

I ride myself (I have a Harley Road King Classic and a Big Dog Ridgeback chopper, and my wife rides a Harley Softtail Deluxe), and I don’t mind admitting that I wouldn’t like being told what to do by the government if I were a new rider. However, as a personal injury attorney who’s handled many motorcycle accident cases, I believe this law could greatly benefit riders. That’s not so much because it’ll make riders safer. Of course, I hope and believe a training course will make inexperienced riders think twice about advanced or dangerous moves. But the landmark study on motorcycle accident causes, the Hurt Report, found that at least half of all motorcycle accidents are caused by drivers of cars and trucks who violate the motorcyclist’s right of way. In fact, it said drivers’ failure to look for or see riders is “the predominating cause of motorcycle accidents.” If you’re on the road frequently, you can probably confirm that from your own experience.

No, I’m pleased about this training law because it will make it harder for insurance companies to make motorcyclists look reckless. As a personal injury lawyer in Fort Lauderdale, I frequently represent people who were seriously injured in accidents, and serious injuries can be expensive. Some insurance companies don’t want to pay expensive claims -- even though they’re obligated to by their own contracts -- so they try to make the accident look like the rider’s fault. Unfortunately, in front of a jury with negative preconceptions about motorcycles, this can be easy. But if I can point to my client’s Motorcycle Safety Foundation certification, I have built-in evidence that my client knows what it takes to stay safe on the road. (Wearing a helmet and other protective gear also helps demonstrate this.)

Of course, the best way to avoid stupid insurance tricks is to not need to make a claim. But if you were hurt in a motorcycle accident despite your best efforts, you should contact my firm, Cohn, Smith & Cohn, for a free evaluation of your case.

With South Florida buttoned down today in anticipation of Tropical Storm Fay, I’ve got insurance on my mind. If that seems like a strange thing to think about, well, you’re probably not a personal injury lawyer in South Florida. Much of my job involves trying to get my clients what they’re owed by an insurance company -- an auto, malpractice, homeowners’ or liability insurance company. In some cases, that’s not as easy as you might think.

As homeowners in South Florida have known for years -- and as a lot of folks on the Gulf coast learned after Hurricane Katrina -- insurers don’t like having to pay out lots of expensive claims at once. That’s why they try to price-gouge those of us who live in storm-prone areas, and sometimes try to avoid paying claims altogether after an expensive accident. For homeowners, the tricks can be as simple as redefining one type of damage as another type that isn’t covered. In other cases, the insurer might blame you for your accident, try to pay less than it owes or ignore your calls and letters altogether.

In addition to undermining the point of insurance in the first place and victimizing policyholders a second time, refusing to pay a legitimate claim is an illegal breach of contract. You can complain about illegal behavior to the Florida Office of Insurance Regulation, of course. But if you’ve lost substantial money, you should also consider an insurance bad faith lawsuit, which will help you recover the cost of what you lost. Sometimes, it can also punish the insurer for illegal or very unethical behavior with even higher payments.

Luckily, experts predict that Fay will pass us by without causing any serious damage. But if your vehicle, home or other property is badly damaged in this or any other storm and your insurance company won’t pay what it owes, contact Cohn, Smith & Cohn to learn more about your rights and your legal options.