child's handsWhen it comes to children involved in car accidents, there are a number of special laws that apply to protect their interests. In the recent case of Allen v. Montalvan, et al., three children were injured in a car accident. The driver of the car in which the injured minors were riding was the grandmother of two of the children and the mother of the third. Unfortunately, the driver was killed in the accident. The other three passengers consisted of the mother and another minor child, both of whom suffered minor injuries in the accident.

Two days after the collision, the mother executed an agreement with a law firm to provide her family and her with legal representation, including the minor children injured in the accident. A term in this agreement provided the law firm with the right to handle legal claims on behalf of the minor children, including settlements. The law firm sent a letter to the family’s insurance carrier, requesting information about the policy’s coverage and limits. The insurance policy provided limits of $25,000 per person and $50,000 per incident.

The law firm had a discussion with the insurance carrier, the details of which are heavily disputed by both of the parties. According to the insurer, the employee with whom the law firm spoke said that the insurer would be tendering the policy limits to extinguish all bodily injury claims. She said the law firm requested two checks for $25,000 each, among other details. According to a lawyer at the firm, the conversation transpired differently. The insurer agreed to tender the full policy limit, but the parties did not discuss specific check and dollar amounts.

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ambulance in lotIn the recent case of Medical Center of The Palm Beaches v. USAA Casualty Insurance Co., the Florida Fourth District Court of Appeal had a chance to consider whether a qualified medical provider must determine that an emergency medical condition was present for benefit payments to exceed $2,500 under Florida’s Personal Injury Protection (PIP) statute. More specifically, in order for an insured to receive more than $2,500 in payments, does the insurer need to conclude that an emergency medical condition is present?

The insured in this case suffered injuries in a car accident. The injuries required her to seek medical care at an urgent care facility. At the facility, she indicated she was experiencing pain in her cervical region and right shoulder. The treating physician referred her to a physical therapist. After obtaining treatment, the plaintiff submitted invoices to the insurer, but the insurer denied the claim for compensation. According to its analysis, Florida Statutes section 627.736(1)(a)(4) only required the insurer to pay a maximum of $2,500 under the policy. It sent a letter to the insured, asking her to provide a determination from the treating physician stating that the plaintiff was experiencing an emergency medical condition.

The plaintiff filed a lawsuit against the insurer, stating that it breached the insurance agreement when it failed to pay for the full scope of the plaintiff’s medical treatment. After filing suit, the plaintiff sent a note from her treating physician stating that she was experiencing an emergency medical condition. The insurer then paid the outstanding invoices until the policy limits were reached. It moved for summary judgment, which the lower court granted, concluding that the statute in question capped medical benefit payments at $2,500 unless the insured can prove that they received emergency medical treatment. The lower court also agreed with the insurer that it was correct in asking for documentation regarding the nature of the plaintiff’s injury, and it rejected the plaintiff’s argument that the insurer waived its right to assert certain defenses when it paid the additional benefits.

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Zwei_zigarettenLawsuits brought against tobacco companies have been some of the most widely watched actions across the country. In a recent decision, a Florida appellate court concluded that a new trial was appropriate in an action involving a multi-million-dollar judgment against a group of tobacco companies. In RJ Reynolds Tobacco Co. v. Calloway, the defendant tobacco companies filed an appeal after the jury at the trial returned a verdict against them totaling millions of dollars.

In the underlying dispute, the plaintiffs had asserted claims for strict liability, fraudulent concealment, negligence, and conspiracy to commit fraud. The plaintiff was the personal representative of the estate of a man who died after suffering complications allegedly linked to his frequent use of cigarettes. Evidence at trial indicated that the man had started smoking cigarettes when he was 15 years old.

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deployed-airbagOne of the biggest stories in recent news has involved Japanese auto parts maker Takata Corporation’s recall of some 23.4 million vehicles due to defective airbags that pose serious risks to vehicle occupants. The airbags were determined to deploy with such excessive force that they can project metal shrapnel, leading to devastating injuries and even some cases of death. In some cases, the airbags have failed to deploy entirely.

After the recall, Takata executed a consent order pursuant to a request from the National Highway Traffic Safety Administration (NHTSA) about its duties during the recall initiative. As part of the consent order, Takata provided four information reports about the defects.

Florida residents have brought many lawsuits against Takata regarding its defective airbag products. During a hearing in one of these proceedings that took place in February 2016, the plaintiff contended that engineers employed by Takata had evidence showing that the airbag propellant was defective over 15 years ago. The propellant is made with the compound ammonium nitrate and was incorporated in Takata vehicles during 2000. During initial testing, the ammonium nitrate resulted in airbag failures. The plaintiff suffered severe injuries when the vehicle in which she was riding was struck, and the Takata airbag deployed defectively, leaving the plaintiff paralyzed.

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sinkholeIn Tower Hill Signature Insurance, ETC v. Speck, et al., a construction company appealed a final judgment entered against it at the conclusion of a jury trial that ordered the defendant to pay over $160,000 in costs to make subsurface repairs and stabilization repairs to the homeowners’ property.

The homeowners’ claim against the insurance policy occurred in January 2010. After the insurance company completed an initial investigation, it denied the claim and rescinded the homeowners’ policy, stating that the home on the property had unrepaired damage in existence at the time the policy was issued. The homeowners then sued the insurance company for breach of contract, and in response the insurer asserted an affirmative defense that the contract was void because the homeowners failed to disclose a material fact–the unrepaired damage.

In 2001, the homeowners had made another claim with a prior insurer regarding sinkhole damage for the same property. The claim stated that the house was a total loss and that they were entitled to their policy limit of $330,000. The insurer retained an engineer, who stated that $166,000 in below ground damages was appropriate. According to the homeowners, an additional $64,000 for above ground repairs was needed. The parties settled the claim for $260,000. Documents indicated that the homeowners only spent $15,000 on repairs to the home and that the rest was used to pay two mortgages on the property.

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black ticking clockOne of the most important considerations in any lawsuit is the statute of limitations. This law operates to bar certain claims that are not filed within the statutorily defined window. For each type of claim, the state legislature will set a time limit on when it can be filed, usually consisting of a number of years. The statute of limitations runs from the date that the harm occurred or accrued.

However, there are a number of legally recognized doctrines that can affect the statute of limitations. In cases involving personal injury, for example, courts often apply a theory called discovery tolling. Since many individuals are unaware that they have suffered physical injuries related to another party’s malfeasance until a doctor informs them about the injuries, or until the symptoms manifest, it can be hard to know when the wrong has occurred. Under discovery tolling, the statute of limitations does not begin to run until the date that the plaintiff knew or should have known that his or her injuries were the result of another person’s negligence.

In the recent case of Riverwalk at Sunrise Homeowners Association v. Biscayne Painting Corporation, the Florida Fourth District Court of Appeal had the occasion to consider the application of a statute of limitations. In this case, a homeowners association appealed a lower court’s ruling that its negligence claim against defendant Sherwin-Williams was time-barred.

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parked white vanIn Boyles v. Dillards, Inc., the plaintiff was involved in a motor vehicle accident when her vehicle partially collided with a delivery van that was owned and operated by Dillard’s. Timothy Davis, a Dillard’s employee, was driving the van at the time of the accident. During trial, there was no dispute that each driver was driving in the same lane of a two-lane highway. Davis was driving immediately behind the plaintiff when the accident happened. The evidence also showed that the Dillard’s van struck the right rear corner of the plaintiff’s car.

The plaintiff testified that she did not leave the lane in which she was traveling and that the van struck her car when she made a right turn into her driveway. According to Davis, the plaintiff left the lane in which she was traveling and merged into a gore that was on the left of the lane in which the cars were traveling. Davis then testified that the plaintiff abruptly directed her car back into the lane in which they were traveling and that he did not have enough time to avoid colliding with her vehicle.

The plaintiff sued Dillard’s for damages. During the litigation, she brought a motion for summary judgment on the issue of whether she had sustained permanent injuries to her shoulder. The court ruled in her favor on this issue. Next, the plaintiff went to trial on the issue of whether Davis was negligent at the time of the crash, whether he caused the crash, and whether the plaintiff also sustained permanent back injuries. Following the trial, the jury concluded that the defendant was not negligent.

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single elevator doorIn the recent case of McNabb v. Taylor Elevator Corp., et al., the plaintiff appealed a summary judgment order entered in favor of the defendant. The facts of the case are as follows. The plaintiff suffered an injury when he slipped and fell in the vicinity of an elevator that was located on a property owned by the Bay Village Club Condominium Association. The owner of the property contracted with the defendant to service, maintain, and monitor its elevators. Midway through the defendant’s fall, a Victaulic seal located in the machinery of the elevator broke and released oil out into the hallway and into the machine room.

One of the elevator service technicians attended to the leak. During his deposition, he testified that the seal leaked at a rate of one drip per two seconds. His testimony also indicated that the fluid that leaked into the service room was one-quarter inch deep. In his complaint, the plaintiff alleged that the defendant was negligent in its maintenance and repair of the elevators. In response, the elevator company submitted a report showing that they had serviced the elevators only three days prior to the slip and fall.

To combat this evidence, the plaintiff offered expert witness testimony saying that the seal was leaking roughly four to 18 days prior to the date of the slip and fall accident. The expert, who was a mechanical engineering expert, based this opinion on the technician’s deposition testimony, as well as the physical dimensions of the room.

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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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