Articles Posted in Litigation

peopleCell phone related distraction accounts for a great number of motor vehicle crashes. Legislation aimed at curbing these preventable events has been enacted in parts of Europe, Canada, and the United States. Florida remains one of just a handful of states without meaningful legislation designed to curb mobile phone abuse while operating a motor vehicle.

With less fanfare, cell phone distraction has become a leading cause of premises liability accidents. The chances of tripping or slipping and falling on a dangerous condition, such as an uneven surface or foreign substance, is increased by inattention.

Florida law apportions damages in most personal injury cases on the basis of each party’s percentage of fault. This includes the injured victim. The concept, contained in section 768.81, Florida Statutes, is known as comparative fault. For example, in most rear-end car crash cases where the lead vehicle is rightfully stopped due to traffic or a road signal, the trailing vehicle is found to be 100% at-fault. However, if it can be established that the lead vehicle stopped suddenly or unexpectedly or that the tail lights of the vehicle did not work, a percentage of fault may be apportioned against the owner or operator of that vehicle. If a jury decides that the owner or operator sustained $100,000 in damages but was 50% at-fault, the judgment in the o/o’s favor would be cut in half to $50,000.

peopleIn this day and age of surveillance cameras everywhere, it is not uncommon for premises accidents to be captured on video. For various reasons it is critically important for the plaintiff’s attorney to secure a copy of all videos as soon as possible. One of the most important reasons is to enable the victim to recount the accident before giving sworn testimony wholly on memory. Even truthful witnesses can have a shaky grasp of the facts. Time, excitement, injury, uncertainty, nervousness — all can work against an accurate account of a traumatic event.

Once a lawsuit is filed and served, the parties to a premises liability action typically engage in what is known as Discovery. Interrogatories, which are questions answered under oath, and live testimony by deposition are two of the most common discovery vehicles. The mechanism of injury is usually at issue in premises liability cases. How and why did the accident happen?

In Business Telecommunications Services, Inc. v. Elena Madrigal, Case No. 3D18-2106, (Fla. 3rd DCA 2019), the appellant Business Telecommunications Services, Inc. was ordered by the trial court to turn over a surveillance video in advance of the deposition of the plaintiff in a personal injury case. The defendant appealed the court order, relying on cases such as Dodson v. Persell, 390 So. 2d 704 (Fla. 1980). The 3rd DCA decided that such reliance was misplaced, and thus refused to reverse the trial court’s order.

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In Citizens Property Insurance Corporation v. Salkey (Opinion filed November `6, 2018), property owners insured with Citizens claimed losses alleged to have been caused by sinkhole activity. They had purchased coverage endorsement, which provided coverage for direct physical loss caused by sinkhole activity. An expert hired by Citizens concluded that the property damage was not caused by sinkhole activity but was caused by the ongoing decay of organic soils and phosphatic clay in the reclaimed mine zone over which the insured’s house was built. Because damage caused this way was excluded under the policy, Citizens denied the sinkhole claim, and the homeowners filed a breach of contract claim against Citizens.

Based on evidence presented at trial, the jury concluded that the damage was caused by both factors. Judgment was entered for the property owners. Citizens appealed.

While the judgment was reversed and remanded on other grounds, the Second DCA concluded that Citizens was otherwise liable on the concurrent-cause doctrine, not the efficient-proximate-cause doctrine, which applies when two or more perils converge to cause a loss and at least one of the perils is excluded from an insurance policy. (Citizens argued that policy language effectively eliminated coverage under the concurrent-cause doctrine, but the appeal court disagreed.) The DCA was informed by the Florida Supreme Court’s opinion in Sebo v. American Home Assurance Co. (Sebo II), 208 So. 3d 694 (Fla. 2016).

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CAVEAT: This blog has been superseded by this blog: Jeffrey P. Gale, P.A. // Constitutionality of Florida Hospital Lien Depends on Mechanism of Creation

Hospital liens have been the bane of every Florida personal injury lawyer’s existence. Perhaps no longer.

An enforceable lien is the right to receive a monetary payment from a person or entity, known as a third party, to satisfy a particular debt. In the matter of personal injury cases, the  source is the party responsible for causing the damages, the at-fault party, and in most instances the money comes from that party’s liability insurance policy.

Hospital liens, both for public and private institutions, are created by special laws or ordinances. With rare exception, they provide that the facility gets paid in full before anyone else can make a claim to the money, including the injured party and his/her attorneys.

Hospital bills are typically large, oftentimes resulting in a significant portion of the third party proceeds being siphoned off to satisfy the lien. In some instances, the gap between what is owed and what is available is so wide there is little point in bothering to settle the case. In that situation, the defendant gets away with paying nothing.

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P1010046-300x225Our firm is presently involved in a personal injury action on behalf of a truck driver who sustained serious injuries when he was struck by a motor vehicle on the side of the northbound lanes of I-95, in an area of the highway known as a gore, while an employee of a roadside assistance company attempted to replace a blown tire on the chassis our client was hauling with his tractor. We have sued the roadside assistance company for failing to display proper warning lights and for undertaking the assistance in a dangerous location. (This photograph shows the assistance vehicle sent to the scene and its location at the time of the crash.) The Defendant has asserted two affirmative defenses in an effort to apportion fault to a non-party. Our co-counsel, superb trial lawyer Robert Tilghman, has prepared a motion for partial summary judgment on the two affirmative defenses. (Reproduced in this blog are portions of the motion. The names of the parties and the non-party have been removed.)

The non-party was the driver of a northbound vehicle that struck our client after first striking the left rear of the vehicle sent to perform the roadside assistance. The parties will never know what caused his vehicle to enter the gore area as he died after the subject accident before he could give a statement. He told fire rescue that he did not remember what happened and there were no eyewitnesses or physical evidence to explain why, when, or how the vehicle entered the gore or why the driver was unable to avoid striking the repair vehicle. We have been able to formulate upwards of twelve reasonable explanations, some of which would not constitute fault on the non-party driver, for the events leading to the collision.

We anticipate that Defendant intends to argue that the non-party driver consumed alcohol prior to the collision and that it was the effect of alcohol which caused the accident. However, Defendant cannot present admissible evidence of his intoxication or that alcohol was a proximate cause of the collision.

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accident-scene-300x193With fault being a fundamental element in all but strict liability personal injury cases, it is often critically important for both sides of a dispute to be able to view certain photographs taken after an accident to help piece together the how and why of its occurrence. Common examples include accident-scene images showing the resting place of vehicles involved in a multi-vehicle collision or a condition alleged to have caused a fall.

Very often only one side has the photographs and sometimes the party refuses to share them with the other side, citing work product privilege as the basis.

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scales.jpgWhile the American jury system is one of the greatest human inventions, it is not infallible. At times our peers are influenced by prejudice, passion, or corruption; they sometimes ignore or misconceive evidence, take improper elements of damages into account by speculation and conjecture.

A verdict based on any of these elements should be rejected by the trial judge and superior appellate courts. There are various procedures for putting the decision before the respective courts. Rather than address those procedures, this blog will focus on the legal standards the courts consider.

There are two standards. The threshold standard is purely objective, the other standard is a hybrid of objective and subjective analysis.
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Facebook.PNGInsurance companies and their defense attorneys seek any shred of evidence to discredit plaintiffs. Facebook and other social medial have become a fertile field for this type of evidence.

Personal injury cases include claims for economic and noneconomic damages. Facebook photographs and comments can contradict these claims. Photographs from the Aspen snow trip and comments about dancing the night away on South Beach can be inconsistent with claims of intractable pain and work limitations.
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surgeon-3-391477-m.jpgHerniated intervertebral discs can have significant medical and legal consequences. The symptoms of a herniated disc can range from minor pain all the way up to unbearable, unremitting pain, paresthesia, and numbness. Treatment options include palliative medicine, physical therapy, epidural injections, and surgery. Each of these option can be costly and none is guaranteed effective. A herniated disc can also limit one’s ability to work.

Discs herniate through degeneration, a lengthy process, and acute trauma. A disc compromised by degeneration is more likely to herniate from trauma than one that is not. The personal injury and workers’ compensation legal systems do not compensate for herniations caused by degeneration only. They are supposed to compensate for herniations caused solely by trauma, and will sometimes compensate for herniations superimposed on degeneration, referred to as an aggravation of a preexisting condition. (For an understanding of how the two systems handle aggravation injuries, consider Florida Standard Jury Instruction 501.5a, for civil cases, and this article, for workers’ compensation.

In civil cases, a defendant responsible for causing a herniated disc can be liable in damages which include medical expenses, lost wages (past and future), and pain & suffering (also known as non-economic damages). In workers’ compensation, the employer/carrier can be liable for medical expenses and lost wages; compensation for pain & suffering is not available in the workers’ compensation system.

The costs associated with a herniated disc can be significant, even in the hundreds of thousands where a spinal fusion is involved. As a result, civil defendants and workers’ compensation employers/carriers fight to limit their financial exposure.

A common defense method is to use doctors who will testify to one or more of the following:

  • There isn’t a herniation
  • If there is a herniation, it was not caused by the accident (e.g., it preexisted the accident)
  • The herniation is asymptomatic or not causing the level of pain being complained of by the Plaintiff/Claimant
  • The various treatment options, including surgery, are not indicated now or in the future
  • The herniation should not prevent the Plaintiff/Claimant from working full duty

The defense doctor’s testimony must be challenged. As with the questioning of any expert under oath, the most important rule is to be prepared. For me, at least, that means going over the doctor’s report with a fine tooth comb for weaknesses and inconsistencies, keeping in mind that what isn’t said is often as telling as what is said. At the beginning, I may feel stumped. However, with enough thought, even of the subconscious type, something always comes to mind. This is why I like to begin the process well in advance of the interrogation. Digesting and mulling works wonders.
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laptop-work-1260785-m.jpgParties to legal actions should always assume that their social media (e.g., Facebook; Twitter) postings will be discovered (discovery is allowed by FRCP 1.350; Discovery of Facebook Content in Florida Cases, 31 No. 2 Trial Advoc. Q 14 (Spring 2012)) and used against them by the other side if helpful. Postings can be used to contradict assertions made in a legal case and sometimes lead to the outright dismissal of actions by the court based on fraud.

However, hurdles must be overcome to get postings into evidence. Among the hurdles:

Finding and Preserving the Social Media Evidence

  • Once we find useful postings by surfing the Internet, we save link addresses, print pages, and take iPad screen shots by simultaneously pressing both of the device’s power switches.
  • Preservation of evidence letters can also be sent to those who own and or control the site to prevent spoilation of the evidence through the innocent or purposeful removal of content. Surprisingly, parties are not obligated to preserve evidence without a specific request. See, Osmulski v. Oldsmar Fine Wine, Inc., So.3d , 37 FLW D1578 (Fla. 2nd DCA 6-20-2012).
  • Formal discovery, pursuant to FRCP 1.310, 1.340, and 1.350, can be used to identify websites with potentially valuable information. Request from the respondent: websites the respondent uses to communicate with others; website account information such as account holder and user name; respondent’s email addresses, phone number, home address; printouts of account information and screen shots.
  • Subpoenas can also be issued to website administrators, like Facebook and Twitter. (The particular knotty issues involved in gathering information from administrators is beyond the scope of this blog.)
  • Another source of information is the Wayback Machine. This is a service that allows people to surf more than 150 billion pages in the Internet Archive’s Web archive.

Legal Hurdles
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