Articles Posted in Personal Injury

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Most Florida motor vehicle insurance policies extend coverage to its insureds for accidents involving temporary substitute automobiles. The typical requirements of the insurance policy provision are that the vehicle is used as a substitute for the owned auto when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction AND with the permission of the owner. A substitute vehicle can include a rental car.

In Geico Insurance Company v. Shazier, So.3d , 35 FLW D539 (Fla. 1st DCA 3-10-2010), the permission element of the insurance provision was put to the test. The insured lost.

Kutusha Shazier and her husband were insureds under a motor vehicle policy with GEICO. Due to mechanical problems with her Ford Expedition, Kutasha rented a vehicle from Avis Rent-A-Car System. The rental agreement provided that only Kutasha Shazier was allowed to operate the vehicle and if the provision was violated, the rental agreement was automatically terminated.

Without permission from Avis, Shazier allowed another person to operate the vehicle. That person caused a serious accident resulting in injuries to numerous passengers and one fatality.
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Florida Statute 767.04 imposes strict liability on dog owners for injuries suffered in public places and in or on private property when the victim is lawfully there. The former viciousness, in other words, the dog’s history, is irrelevant, hence the strict liability aspect of the statute.

However, the victim’s own negligence (e.g, taunting the dog) can be considered to reduce or avoid a dog owner’s liability.

Additionally, except as to children under the age of 6, “or unless the damages are proximately caused by a negligent act or omission of the owner, if at the time of any such injury the owner had displayed in a prominent place on his or her premises a sign easily readable including the words ‘”Bad Dog,”‘ the owner can avoid liability.
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Personal injury claims of individuals under the age of 18 present unique procedural demands for the legal practioner. For starters, the attorney represents the minor through the minor’s legal guardian, typically one parent or both. This is because minors cannot pursue claims through the court system or settle them, pre- or post-suit, on their own.

Whether or not any other procedural requirements must be met depends on the gross amount of the settlement. The chart below sets forth the standards for these other requirements.

POTENTIAL ADDITIONAL REQUIREMENTS:

Court Approval of Settlement Required:

  • Gross Settlement is $15,000 or less – No, unless a lawsuit has been filed, then yes. Sections 744.301(2) & 744.387(3)(a) Florida Statutes.

    Court approval is obtained by filing a Petition for Approval of Minor’s Settlement with the Court. The Petition should contain details of the case, including the issues of liability and damages, the amount of the settlement, and the amount of attorneys’ fees and costs. In many instances, the Court will approve the settlement without a hearing.

  • Gross Settlement is greater than $15,000, but less than $50,000 – Yes. Section 744.387(3)(a).
  • Gross Settlement in excess of $50,000 – Yes. Section 744.387.

Need Legal Guardianship/Guardian of the Property Appointed:

  • Gross Settlement is $15,000 or less – No.
  • Gross Settlement is greater than $15,000, but less than $50,000 – Yes, but only if the Net settlement (after gross settlement is reduced by attorney’s fees and costs) exceeds $15,000. Section 744.387(2).
  • Gross Settlement in excess of $50,000 – Yes, but only if the Net settlement exceeds $15,000. Section 744.387(2).

It is not unusual for the legal guardian and the guardian of the property to be the same individual or individuals. This person will be charged with collecting the amount of the minor’s net judgment and executing all necessary releases. However, the court will retain sole jurisdiction to determine the allocation and use of the minor’s net settlement, oftentimes insisting that it be put into a conservative account for safekeeping until the minor reaches majority. Until majority, whenever the legal guardian wishes to use the minor’s money, court approval must be obtained. The Court’s determination will be based on what is in the minor’s best interest.
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Every first year Florida law student is taught the concept of the Plaintiff with the “Eggshell Skull”.

The proposition is that the Defendant [in an accident case] is responsible for the full extent of the injuries sustained by such Plaintiff even if the degree of damage suffered is more than would be suffered by the average person. In other words, if the Plaintiff was predisposed to suffer an injury or if the injury suffered is worse than it would have been for the average person, the Defendant must compensate the Plaintiff to the full extent of the injuries.

In the example of the Plaintiff with the eggshell, or especially thin/fragile skull, the Defendant, whose negligence caused this Plaintiff to bump his/her head and sustain a fractured skull, is responsible for the fracture even if the worst that would have happened to the average person was a small bump on the head. Put another way, a Defendant “takes the plaintiff as he finds him,” including any pre-existing weaknesses or susceptibility to injury including a weakness caused by a previous injury or pre-existing condition.
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Whether or not a Florida landowner is liable to a member of the public for injuries resulting from an accident on his or her property depends in large part on the status of the visitor at the time of the accident. The status will determine the landowner’s duty of care to the visitor.

The following outline lists the status categories recognized under Florida law and the duty owed to visitors under each category:

  • Public Invitee. A person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public. (Example: Child in a public park.) This landowner has the following duties: (1) to correct or warn of dangers that the owner knows or should know of by the use of reasonable care, and which the visitor cannot or should not know of by the use of reasonable care; and (2) to maintain the premises in a reasonably safe condition. (See my previous blog on this subject.)
  • Business Invitee. A person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land. (Examples: A grocery story patron; a paying fan at a Miami Dolphins football game.) Duty: same as for Public Invitee.
  • Licensee By Invitation. A social guest. Duty: same as for Public Invitee.
  • Uninvited Licensee. A person who chooses to come upon the premises solely for his or her own convenience without invitation either expressed or reasonably implied under the circumstances. (Example: teenagers partying in a parking lot owned by a business establishment.) Duty: To refrain from willful or wanton injury (e.g., to remove any concealed “traps” of which the owner has actual knowledge).
  • Trespasser. A person who enters the premises without license, invitation, or other right, and intrudes for some definite purpose of his own, or at his own convenience, or merely as an idler with no apparent purpose, other than perhaps to satisfy his curiosity. Duty: same as for Uninvited Licensee.

(Much of the information contained in this outline was gathered from a table created by Attorney Wilton H. Strickland.)
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In a previous blog, I wrote that Republicans in the 2010 Florida Legislature had designs on shifting the standard of proof in slip & fall cases to favor business establishments. Despite strong opposition from Democrats and the Florida Justice Association, the Republicans have accomplished their goal.

On Apri 14, 2010, Florida Governor Charlie Crist approved House Bill No. 689, effective July 1, 2010. The bill nullifies the holding in Owens v. Publix Supermarkets, Inc, 802 So. 2d 315 (Fla. 2001) and repeals 768.0710 F.S. The new law, which will be 768.0755, eliminates the burden on the defendant, after the plaintiff has established that his or her fall was caused by a transitory substance, to produce evidence that it exercised reasonable care under the circumstances. This is a major shift and one that will prove decisive in many slip & fall cases.
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In a previous blog, I wrote that the 2010 Florida Legislature was attempting to pass a law purposely crafted to reverse or limit the ruling in Kirton v. Fields, 997 So.2d 349 (Fla., 2008), the Florida Supreme Court case which held that pre-injury releases executed by parents on behalf of minors were unenforceable against the minor or the minor’s estate in a tort action arising from injuries resulting from participation in a commercial activity. Through the recent passage of CS for SB 2440, it appears that the legislature may have succeeded in limiting Kirton.

The bill authorizes natural guardians of minors to waive, in advance, claims for injuries or death arising from risks inherent in commercial motorsport activities such as motorcross and go-cart parks – the Kirton case involved a minor who died from an accident at a motorcross park. Kirton banned such waivers.

Significantly, and thanks to the tireless lobbying efforts of the Florida Justice Association, the bill does not shield the owners and operators of commercial motorsport facilities and sanctioned events from their own negligence.

The essential elements of the bill are:

  1. Waivers for minors relating to inherent risks associated with commercial motorsport activities are authorized;
  2. The execution of a valid waiver creates the presumption that the accident was caused by an inherent risk; and
  3. Clear and convincing evidence rather than just a preponderance of evidence must be demonstrated to overcome the presumption that the accident was caused by an inherent risk.

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The Port of Miami is one of the busiest cruise ship ports in the world. Thousands of passengers from around the world sail from its docks weekly. Many of these passengers become victims of cruise ship negligence, from food poisoning, to slipping and falling, to onboard sexual molestation. For those individuals thinking of bringing suit against any of the various Miami-based cruise line companies, the following basic considerations must be taken into account:

  1. The target defendant must be given written notice within six (6) months of the accident. This requirement will be contained in small print on the back of the cruise ticket. Failure to give this notice will bar further action against the ship owner. Given the harshness of this rule, it is advisable to send the notice by certified mail, return receipt requested. Better to be safe than sorry.
  2. The lawsuit must be filed within one (1) year of the accident. This requirement will also be contained in fine print on the back of the cruise ticket. It is enforceable. Many lawyers unfamiliar with this requirement have mistakenly concluded that Florida’s four year statute of limitations for negligence cases applies. It does not.
  3. Regardless of where the accident happens or where the victim resides, the venue of the case will be In Miami, Florida and the court with jurisdiction over the cause of action will be the United States District Court, Southern District of Florida. We recently settled a case against Royal Caribbean Cruise Lines involving an accident on the high seas involving a gentleman from Terra Haute, Indiana. The lawsuit had to be filed in the Federal Court in Miami.

Cruise ship negligence cases can be a trap for the unwary. This is a specialized area of law and a specialist should be consulted to handle the case.
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Our law firm was recently hired by a military veteran who claims to have been infected with the liver disease Hepatitis C by equipment used to perform colonoscopies at the Veterans Administration (VA) hospital in Miami, Florida.

Last year the VA acknowledged contamination issues with endoscopic equipment used to perform colonoscopies in its Miami facility between 2004 and 2009. It has notified more than 3000 patients of the potential for infection and recommended testing, one of whom is our client. To her great disappointment, she tested positive for Hepatitis C.

Although the VA admits to the contamination problem, it does not so readily admit to it being the cause of infection in every veteran who has been tested positive for the virus (or HIV; there have been reported cases of HIV infection). Because Hepatitis C, among serious and sometimes fatal medical conditions, is relatively easy to contract, the refusal of the VA to take responsibility for every case of infection is understandable. (However, shouldn’t there be a rebutable presumption in favor of the veterans that the virus was caused by the VA?)

We expect the government to conduct comprehensive discovery in our case in an effort to establish other risk factors, such as intravenous drug use, blood transfusions, promiscuous sex, etc. From past experience, we know that the government’s lawyers and even the FBI will attempt to look into every relevant aspect of our client’s history for evidence to blame for the infecton other than its contaminated equipment.
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In my 25 years of representing accident victims, I have found rotator cuff injuries to be about the most debilitating of all traumatic injuires for those employed as manual laborers. Unfortunately, it is a very common injury – for example, shoulder pain is second to back pain as the bases for workers’ compensation claims.

The rotator cuff is made up of 4 tendons, and they cover the top of the humerus. A rotator cuff injury involves a tear to one or more of these tendons. Tears can be full or partial thickness.

Tears can be acute, when a sudden force is applied to the shoulder, or chronic, which is deterioration over a long period of time. Common symptoms of acute tears include a tearing sensation, sudden pain, and sudden weakness. The symptoms of chronic tearing include gradual progression of shoulder pain and weakness, and difficulty sleeping on the affected side.

Rotator cuff tears are diagnosed clinically, by the orthopedist through examination, and by MRI. The best type of MRI to accurately diagnose the presence of a rotator cuff tear is the MRI arthrogram.

Treatment for rotator cuff injuries includes conservative care and surgery. Conservative care includes rest, non-steroidal anti-inflammatory medication (Motrin, Aleve, Celebrex) and physical therapy, and sometimes proves valuable with partial tears. Complete tears and partial tears that have not responded well to conservative care, usually will require surgery.
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