Articles Posted in Personal Injury

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Florida’s maze of motor vehicle insurance laws can be difficult to comprehend.

A case in point: Personal Injury Protection (PIP) and Property Damage – Liability are the only required coverages for an owner to lawfully operate his/her vehicle on Florida’s streets and highways. (PIP pays 80% of medical bills and 60% of lost wages for the insured up to $10,000, while Property Damage – Liability pays to repair or replace the other owner’s motor vehicle.) With these coverages, the vehicle owner is able to purchase a license plate and a vehicle registration.

Surprisingly, however, in the event of a motor vehicle accident involving injury or death, having the minimum mandatory coverages will not prevent the at-fault party from having her drivers license and all vehicle registrations from being suspended. Sections 316.066(3)(a)1 and 324.051(2)(a) Florida Statutes.

The type of insurance coverage that will prevent the suspensiong is Bodily Injury (a/k/a liability insurance) in the minimum amounts of $10,000 per person/$20,000 per accident. Section 324.021 (7) Florida Statutes.
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  • Contact fire rescue (for injuries) and the police from the accident scene.
  • Take photographs of the vehicles – damage and location.
  • Photograph visible injuries.
  • Obtain names and contact information of independent eyewitnesses.
  • Cooperate with law enforcement. Describe the accident and provide your motor vehicle insurance information.
  • Before leaving the scene, obtain a copy of the short form police report or other police report identifying information.
  • If your vehicle must be towed from the accident, determine by whom and to where. Remove personal belongings before the vehicle is towed away.
  • If necessary, allow fire rescue to transport you to the hospital.
  • Provide fire rescue and the hospital with your vehicle and health insurance information.(The “PIP” coverage under your own insurance policy is primarily responsible for paying for a limited dollar amount of your medical care.)
  • Report the accident to your insurance company.
  • Obtain claim number from your insurance carrier.
  • If necessary, seek follow up medical care.
  • Provide medical providers with your vehicle and health insurance information.
  • The at-fault party’s Florida insurance company should pay for your vehicle damage. In some instances, it is easier to have your own insurance company handle the repairs. However, not every insurance policy covers the cost of such repairs. It is not required coverage. Check your policy to see if you have “Collision” coverage. (Be careful of what you say to the at-fault party’s insurance company. The company will be looking for ways to deny your claim.)
  • If your injuries are serious, contact a personal injury lawyer as soon as possible. The lawyer will handle a myriad of issues associated with your accident, including medical matters, insurance coverage, vehicle repair or total loss payments, etc.

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The standard in Florida for determining fault for injuries caused by harmful substances in food is known as the “reasonable expectation” test. Examples of harmful substances include bones, shells, and pits, not only substances completely foreign to food products such as metal, human nails, and bugs.

Obviously, claims resulting from foreign objects are easier to win than claims involving substances natural to the basic food product, but the “reasonable expectation” test nevertheless provides a basis for prevailing in the latter situation.

Not every jurisdiction within the United States follows the “reasonable expectation” test. Some jurisdictions represent the view that as a matter of law a harmful substance present in food which is natural to it cannot be common law negligence or a legal defect or breach of the implied warranty of reasonable fitness of such food. Florida has rejected this test as not being logical or desirable. Zabner v. Howard Johnson’s, Inc., 201 So.2d 824 (Fla. App. 4 Dist., 1967).
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law books.jpgFlorida Statues may allow PIP carriers to conduct medical examinations and perform paper reviews, but no authority, including the statute itself, grants PIP carriers license to reference those procedures as an “IME,” “Independent Medical Examination,” or a “Peer Review.” In short, PIP carriers have created the terms out of whole cloth to mislead juries.

The doctors are not independent or conducting peer reviews. (Merriam-Webster Dictionary’s only definition of “peer review” is: a process by which something proposed (as for research or publication) is evaluated by a group of experts in the appropriate field.) They are hired by the defense and paid by the defense. If the jury hears that doctors are “independent” or a “Peer Review,” the jury may be confused into believing or thinking the doctors were appointed by the court, a governing body, or with the approval of the Plaintiff or the Plaintiff’s attorney.

When preparing for trial, the Plaintiff’s attorney should consider moving the court for an In Limine order preventing the insurance company from perpetuating the falsehood.
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A well-established common law principle in Florida is that motor vehicles are “dangerous instrumentalities.” Southern Cotton Oil Co. v. Anderson, 86 So. 629 (Fla. 1920). In 1941, the Florida Supreme Court held that because the use of a dangerous instrumentality involves such a high degree of risk of serious injury or death, whoever deals in such instrumentalities must exercise the “highest degree of care.” Skinner v. Ochiltree, 5 So.2d 605 (1941). This decree is consistent with the court’s opinion that “as the risk grows greater, so does the duty, because the risk to be perceived defines the duty that must be undertaken.” McCain v. Florida Power Corp., 593 So.2d 500 (Fla. 1992).

Until 2005, this longstanding and reasonable principle of law applied to both individual private vehicle owners and billion dollar rental car agencies alike. However, with the passage into law of the Graves Amendment, the U.S. Congress and the Bush Administration (George W. Bush), allowed rental car agencies across the country to escape liability for serious personal injuries caused by their rental vehicles.

The constitutionality of the law is being challenged in courts across the nation. One of the main arguments in opposition to the federal law is that the individual states should be allowed to create laws that effect its own residents. The constitutionality issue will ultimately be decided by the U.S. Supreme Court.

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In the Gettysburg Address, Abraham Lincoln declared that we are a “government of the people, by the people, for the people.” Sadly, this message has not registered with Florida lawmakers. (Please see this blog for a significant modification of this statement.)

As should be the case, individuals and corporations whose negligence causes harm in Florida must pay full compensation for the damage caused by those acts. (Major exception: doctors and medical facilities.) For example, if a civil jury renders a verdict against driver A in the amount of $1,000,000 for crashing into the rear of driver B at 60 mph while operating a company vehicle, a judgment in that amount will be entered by the court against driver A and the company. (Whether or not driver A and the company have the capacity to pay, through insurance or otherwise, is another issue.)

Unfortunately, this would not be the outcome if the at-fault vehicle were owned by the government. In that situation, Florida law (768.28(5)) nullifies the voice of the jury, only allowing the judge to enter a judgment against the government (e.g., city, state, governmental agency, village, etc.) in the amount of $100,000. That’s right. The government is not subject to the considered decision of the jury. If that isn’t bad enough, when the negligence occurs at the planning level stage, instead of at the operational stage, the government has absolute immunity from being sued. This means that a lawsuit will not be allowed to proceed against the government when the negligence occurs at the planning stage.

Parties held fully accountable for the consequences of their actions learn to modify their behavior for the better. Those not held accountable, do not learn or modify. This is the problem with Florida’s sovereign (i.e., government) immunity law. The sovereign acts with impunity because the consequences of its bad acts are de minimus. I say take away the government’s sovereign immunity. Make it equally accountable as private individuals and corporations. Maybe then the sovereign will act as it should, with due regard for the health, safety, and welfare of the people, instead of the other way around. As Abraham Lincoln famously said, we are a “government of the people, by the people, for the people.”
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Tort “deformers” purposely fail to make full disclosure in their holy war against the civil law justice system. A prominent example of something not being divulged is the well-established principle of law commonly known in Florida as Comparative Fault or Contributory Fault/Negligence. Quite simply, this concept provides that the Plaintiff’s degree of fault, if any, will be held against him or her in a claim against others arising out of an accident resulting in injury or death.

In every personal injury case, the degree of damage (injury or death; economic losses) sustained by the Plaintiff equals 100%. If the defendant or defendants – the parties being blamed [by the Plaintiff] for causing the accident – are found by a jury to be 100% at fault, they will be responsible for paying 100% of the Plaintiff’s damages. If, however, the Plaintiff is found to be at-fault in any degree for causing the accident, his or her recovery will be reduced accordingly. For example, if a jury determines that the Plaintiff has sustained damages totaling $200,000, but also finds that the Plaintiff is 25% at-fault, the Plaintiff’s net recovery will be $150,000.

This principle of Comparative Fault is just one of many legal concepts never mentioned by those forces bound and determined to bar the courthouse doors from the men, women, and children of this state in need of legal redress.

Stay tuned for further examples.
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Pharmaceutical drugs can work positive wonders. Unfortunately, if abused or misused, they can be terribly harmful. In today’s fast-paced world, simple errors involving prescription medicine are not uncommon. From a scribbled doctor’s prescription, to failing to learn of allergies or the contraindications of mixing medicines, to dispensing medication to the wrong patient, mistakes happen. The numbers are staggering.
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In a conscious effort to create a negative view of trial lawyers and civil lawsuits, Corporate America has for years distorted the truth about the famous McDonalds coffee spill case, the poster child for the frivolous lawsuits mantra. Sadly, the public has fallen for the propoganda hook, line and sinker.

Why, might you ask, would Corporate America wish to turn the public against trial lawyers and civil lawsuits? The answer is simple. Profits over people. By limiting the right of individuals to seek redress against big business, they become less accountable for their negligent conduct. Civil lawsuits make big business pay for its negligence. Limit civil lawsuits, limit accountability.

How, might you ask, does the propoganda limit accountability? The unknowing and gullible public presses its politicians to do something about the “lawsuit crisis.” “Conservative” legislators, all too happy to take up the cause – although not without a price – you can be sure that the loudest political voices for curtailing civil lawsuits, receive the most money from big business – devise laws with the effect of making it ever more difficult to take on big business in our courts of law. Barring the courthouse doors, so to speak, from “We, the People.” It has been happening for years, and it’s not pretty. Frankly, it is frightening. Big business run amock.

Back to the McDonalds coffee spill case.

Background: In 1994, a New Mexico jury awarded a woman 2.9 million in a case arising out of hot coffee spilling onto her lap while sitting in a car driven by her grandson. The Plaintiff (the person who received the jury verdict) was a 79-year old retired sales clerk who had never before sued anyone. When she placed the coffee between her legs and removed the lid to add cream and sugar, the scalding hot coffee spilled out onto her lap, causing third-degree burns on her groin and thigh area. She was hospitalized for eight days and incurred medical expenses in excess of $11,000. She was left with permanent pain and scarring. The jury trial lasted 7 days.

The untold story:

  • The woman’s request to have her medical bills paid was countered with an offer from McDonalds in the amount of $800
  • It takes less than 3 seconds to produce third-degree burns at 190 degrees, 12-15 seconds at 180 and 20 seconds at 160. McDonalds brewed its coffee at 195 to 205 degrees.
  • McDonalds own records revealed that in the previous 10 years, it had received more than 700 reports of burns from scalding coffee, and the company had spent more than $500,000 in settling these claims

The jury awarded damages of $200,000, reduced to $160,000 based on the plaintiff’s 20% negligence for spilling the coffee, and punitive damages (for conduct held to be willful, malicious and reckless) in the amount of $2.7 million, later reduced by the trial judge to $480,000. Both sides appealed and later reached a confidential settlement. Interestingly, One day after the jury verdict, the coffee temperature at the restaurant in location was tested and had been reduced to 158 degrees.
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doctor.jpgIndividuals injured in Florida accidents through the negligence of others may be entitled to compensation for their injuries. To determine fair compensation value, the injuries must be documented and treated by qualified medical professionals. Unfortunately, not everyone has insurance or other means to pay for medical care. Thankfully, some medical providers will provide care to genuinely injured individuals on the expectation of receiving payment from the personal injury case recovery. Because of the uncertainty of achieving success in the personal injury case, it is a risk for the medical providers, who often invest substantial amounts of time and resources, to provide the care. Fortunately, the medical providers understand the risk and do not expect the patient to pay out-of-pocket when no recovery is made. Due to the risk, medical providers limit this service to trustworthy lawyers willing to provide an honest analysis of the eventual outcome of the underlying case.

Hats off to these professionals for providing this valuable service.

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