Charlotte_Amalie_harbor,_Saint_Thomas,_US_Virgin_IslandsThe recent case of Morrissey v. Subaru of America, Inc. involved a motor vehicle accident in which a husband and wife sustained injuries after the car in which they were riding accelerated unexpectedly and crashed into a fence made out of stone. The accident occurred in the Virgin Islands, a territory of the United States. The women sustained severe injuries during the accident that left her paralyzed permanently.

After the accident, the couple brought a legal action against the maker of the automobile, a Japanese company, in Florida court. In their complaint, the husband and wife asserted multiple theories of recovery, including negligent design, strict liability, negligence per se, breach of warranty, negligent manufacturing, and failure to warn. The husband also asserted a loss of consortium claim.

Continue reading Florida state appellate court recently reversed a trial court’s ruling in a case involving a woman who sustained injuries after the car in which she was riding collided with a dead horse lying across the roadway. As a result of the collision, the woman’s vehicle overturned, which caused her to suffer severe harm.

After the accident, the woman initiated a lawsuit against the County Sheriff, which the woman initially won. Following the suit, the woman filed a motion for additur, which requests the court to increase the amount of damages that the jury awarded to the prevailing party in its verdict. The trial court granted the motion and issued a judgment.

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car-wrecked-845143_1920Dealing with insurance companies can create some of the biggest headaches when it comes to motor vehicle accidents. In the recent case of Explorer Insurance Co. v. Cajusma, a Florida driver held a liability coverage policy from an insurance carrier. During the policy period, the driver was involved in a car accident. At the time of the crash, there were multiple passengers in the plaintiff’s car and two occupants in the other vehicle. After the accident, the driver and each of the passengers in his vehicle received chiropractic care. Each occupant in the driver’s vehicle also filed a claim for personal injury protection (“PIP”) benefits.

Shortly thereafter, the driver of the other vehicle involved in the accident and his passenger filed a personal injury action against the first driver. The driver’s insurer denied all the claims, resulting in multiple individual lawsuits being filed against the driver in court. Additionally. the chiropractic clinic where the driver and his passengers sought medical care filed a legal action against the driver and one of the occupants, claiming that both parties failed to pay their chiropractic bills.

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t-bone-879893_1920In Mercury Insurance Co. v. Emergency Physicians of Central Florida, the plaintiff suffered injuries in a car crash. The plaintiff held a $10,000 personal injury protection (“PIP”) benefits policy at the time of the accident that she had bought from her car insurance carrier. Pursuant to the policy’s provisions, the injured woman selected to receive a $500 deductible. After the accident, the injured woman received medical care at a local emergency care facility. The facility later submitted a bill for $191 to the injured woman’s PIP carrier but did not submit any additional bills.

Over two months later, the medical facility sent a statutory demand letter to the injured woman’s insurance company, requesting payment for the medical treatment that it provided to their insured. The carrier did not respond to the demand letter, and the medical facility initiated a lawsuit against the carrier in Florida. The insurer claimed that it was not liable for the medical expenses because the amount of care was below the deductible that the injured woman chose pursuant to the PIP policy.

The medical facility moved for summary judgment, alleging that it was entitled to payment for the medical expenses regardless of the insured’s deductible level, based on Florida Statutes Section 627.736(4)(c). In response, the insurer filed its own motion for summary judgment, claiming that the statute cited by the medical facility did not prohibit the carrier from insisting that payment of the medical bills come through the insured’s deductible. Ultimately, the court granted the medical facility’s motion for summary judgment, stating that to deny it would contravene the intent of the Florida Legislature.

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One of the most common types of claims to arise in a nursing home abuse case is medical malpractice. Ensuring that the elderly receive the treatment that they need in an appropriate and timely fashion falls directly within a nursing home’s duty to its residents. In Florida, there are certain time limits placed on when an injury victim can file a claim. When it comes to medical negligence, an injury victim has two years from the date the injury victim learned about or should have learned about the negligence. According to Florida Statutes Section 95.11(4)(b), however, an injury victim cannot bring a claim more than four years from the date of the incident.

Determining the date that the injury victim discovered or should have discovered the negligent act is one of the biggest issues in nursing home negligence cases. The resident may suffer from dementia or another illness, leaving it up to the family members to ensure that their loved one is receiving the care that they need. Even with the most attentive and involved families, determining exactly when the negligence occurred can be difficult.

In the recent case of Bove v. Naples HMA, LLC, the Florida Second District Court of Appeals considered this very issue. The decedent in the case died following a medical procedure to obtain a bone marrow biopsy. According to a physician who testified at trial, the patient died from a retroperitoneal bleed that interacted with other medical issues. Following the death of her husband, the decedent’s wife obtained letters from medical experts who informed her that the death was associated with the biopsy procedure and resulting bleed.

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dark parking lotMany people are aware that property owners can be held liable for slip and fall injuries and other accidents that occur on their premises. Fewer know, however, that in certain cases Florida law allows a property owner to be held liable for failing to provide sufficient security and safety precautions to keep guests safe. Some of the most common examples of the types of negligent security cases that arise in Florida involve robberies, false imprisonments, batteries, and sexual assaults. In the most tragic instances, a victim loses his or her life as a result of a property owner’s negligence.

In 2014, for example, a Florida man shot and killed a mother and son during a robbery before killing himself at the scene. Reports regarding the horrific event suggested that the perpetrator had been involved in substantial criminal activity and had a lengthy rap sheet, but the landlord allowed him to rent an apartment at the gated community because the gunman’s father owned a construction company that performed work for the landlord. In usual cases, the gated community required applicants to undergo a thorough and extensive background check before being able to reside at the complex.

According to the ensuing criminal trial and civil trial brought by the mother’s and son’s surviving heirs, the perpetrator had become friendly with the security guards at the entrance to the gated residence in addition to developing relationships with some of the other tenants. The perpetrator kept a loaded rifle and ammunition in his apartment. Due to his relationships with the guards and some of the tenants, however, no one questioned his residency or the weapons.

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home building constructionIn the recent case of Wells v. Halmac Development, Inc., the plaintiffs contracted in 2008 for general construction work at their home located in Coral Gables. In the next year, the plaintiffs fired the general contractor, and the general contractor filed a lien against the property. The contractor later filed a lawsuit seeking to foreclose on the lien as well as seeking damages for unjust enrichment, breach of contract, and quantum meruit.

After the complaint was filed, the parties agreed to submit the matter to arbitration. The homeowners had also asserted claims against the contractor for misappropriation of funds and breach of contract, as well as a claim against the construction company’s president alleging a fraudulent lien.

In August 2011, the arbitrator concluded that the homeowners were entitled to recovery on the breach of contract claim and their claim for misappropriation of funds. The arbitrator also concluded that the contractor prevailed on his counterclaim to the homeowners’ fraudulent lien claim. Ultimately, the arbitrator concluded that there was no prevailing party in the matter for the purpose of awarding attorneys’ fees to a party.

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patrons in barIn the recent case of Faber v. Pasco, Inc., the plaintiff alleged that she suffered injuries while patronizing The Karl Reef in 2013, which is a bar located in Pasco County. According to her complaint, a fight broke out while she was at the bar. The plaintiff’s lawsuit named the owner of the bar, Joseph Karl, and Karl of Pasco as the alleged property owner. She asserted a cause of action for negligence, stating that the owner was liable pursuant to a premises liability theory. The plaintiff and the manager of the bar, Michelle Karl, were located in close proximity to the fight when it broke out. The plaintiff alleged that she was attacked intentionally and fell after another bar patron struck her.

During her deposition, however, the plaintiff testified that she fell when a fight between other bar patrons broke out, resulting in her being shoved incidentally and falling. As a result of this testimony, Joseph Karl and Karl of Pasco filed a motion for summary judgment. In their motion, they alleged that the plaintiff’s deposition testimony contradicted the allegations contained in the complaint, and as a result there was no material dispute that the defendants lacked actual notice of the potential danger that the plaintiff faced.

To recover compensation against a property owner, the plaintiff must show that the defendant knew or should have known that a dangerous condition existed on the property and that the defendant failed to address the dangerous condition or provide a warning to patrons about the dangerous condition. There are a variety of ways that the plaintiff can show the defendant had actual notice of the harm, including through constructive notice. In a constructive notice theory, you must show that the condition existed for such a length of time that the defendant would have observed it if he or she was employing reasonable care in maintaining his or her premises. The plaintiff must also show that the condition occurred with such regularity that it was reasonably foreseeable.

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hand signing contractIn the recent case of Klemish v. Villacastin, the plaintiffs, a married couple, appealed an order from the lower court that compelled arbitration of their medical malpractice claims against the defendant, a hospital corporation. The Fifth District Court of Appeals reversed the lower court’s order finding that the arbitration provision between the parties was void and therefore unenforceable.

The facts of the case are as follows. One of the plaintiffs, the wife of the couple, was admitted to one of the defendant’s hospital locations for therapeutic treatments and care following a surgical procedure. At the time she was admitted, she signed a form labeled “ALTERNATIVE DISPUTE RESOLUTION AGREEMENT AND AMENDMENT TO ADMISSION AGREEMENT.” There were a number of provisions in this agreement, but the most relevant included a provision waiving the plaintiff’s right to trial regarding any dispute falling within the agreement. Instead, the plaintiff’s sole recourse was either mediation or arbitration.

Another relevant provision was entitled Pre-Request Procedures. It stated that the parties must comply with certain pre-suit and pre-notification requirements, as provided by Florida law, before filing a request to pursue the arbitration or mediation of a dispute.

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cars after accidentIn Gaulden v. State of Florida, the Florida Supreme Court had an opportunity to examine the meaning of the phrase “involved in a crash” as used in Florida’s hit-and-run statute, section 316.027. Although this case is criminal in nature, it is important for motorists who suffer injuries and who seek damages from the at-fault driver in a civil proceeding. According to Florida law, an injured plaintiff can assert a rebuttable presumption that the defendant was negligent if the plaintiff can show that the defendant violated an applicable statute at the time of the accident.

In this case, the defendant was charged with leaving the scene of an accident involving a fatality, pursuant to Florida Statutes section 316.027(1)(b). This provision states that the driver of a vehicle involved in an accident in which a fatality results must “immediately stop” at the scene and adhere to other requirements provided in the statute, including the provision of assistance to any injured persons. The incident in question involved a dispute between the defendant and the decedent. The two individuals were seen riding in the same vehicle. Shortly thereafter, the individuals engaged in a fight, and the decedent was ejected from the vehicle while it was in motion.

The defendant refuted the charge, stating that he was not “involved in a crash” as contemplated in the statute. The defendant argued that since the person who died in the accident was separated from the car in which he or she was riding at the time of the accident, there was no “crash.” The lower court agreed and dismissed the charges against the defendant.

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