South Florida Injury Attorneys Blog

October 21, 2015

Florida’s Second District Court of Appeal Reverses in Contractor Personal Injury Suit

Florida’s Workers’ Compensation Law extends immunity to contractors and subcontractors. As is to be expected, however, in order for such immunity to bar suit in a particular case, the company must fall within the applicable definition of “contractor.” Indeed, many companies may be in relationships that analogize to contract relationships but cannot—despite their best efforts otherwise—have recourse to the Workers’ Compensation Law to immunize themselves for injuries arising from their negligence. The scope of what constitutes a contractor for purposes of the Workers’ Compensation Law was at the heart of a recent decision from Florida’s Second District Court of Appeal, Slora v. Sun ‘n Fun Fly-In, Inc.

The plaintiff in this case was employed by U.S. Security Associates, Inc., a company that provided event security to Sun ‘n Fun Fly-In, Inc., a company that operated an air show near Lakeland, Florida. In order to operate this air show, Sun ‘n Fun was required to obtain certain certificates of waiver from the Federal Aviation Administration (“FAA”). The FAA granted the waivers, which came with various standard and specialized provisions with which Sun ‘n Fun needed to comply, including provisions for security. Sun n’ Fun contracted with U.S. Security to provide these required security measures, and the plaintiff was assigned to provide security during the air show. The plaintiff was working at a security guard shack at Lakeland Regional Airport when a tornado struck. The winds lifted the shack from the ground and deposited it in a ditch. The plaintiff made a workers’ compensation claim through her employer, which maintains workers’ compensation insurance. The claim was settled.

October 14, 2015

Florida’s Fifth District Court of Appeal Takes a Look at Witness Credibility in Auto Accident Appeal

by Frankl Kominsky Injury Lawyers

In certain legal areas in which expert testimony is of importance for determining liability, litigators will often form relationships with particular experts who provide testimony in their cases. However, a familiarity between experts and attorneys can raise issues regarding the propriety of the testimony provided. Indeed, many may question whether the testimony being provided by a purported expert is genuine or merely the function of an established course of prior dealings. This dynamic was addressed in a recent decision from Florida’s Fifth District Court of Appeal, Vazquez v. Martinez.

Vazquez arose from a 2007 rear-end collision. The car of the plaintiff in this case was stopped at a red light when her car was rear-ended by a vehicle being driven by the defendant. The plaintiff brought suit against the defendant for damages arising from the collision. The case proceeded to trial. At trial, the plaintiff sought to introduce evidence that payments that totaled over 700,000 dollars had been made by the defense or its agents to the expert witness testifying on behalf of the defendant over the past three years. The trial court permitted this evidence, and ultimately the jury returned a verdict in favor of the plaintiff. On appeal, the defendant argued that admission of the testimony was improper. The Fifth District disagreed.

October 7, 2015

Florida’s Fourth District Court of Appeal Examines Limits of Recent Florida Supreme Court Decision

by Frankl Kominsky Injury Lawyers

In a recent decision, Saunders v. Dickens, 151 So. 3d 434 (Fla. 2014), the Supreme Court of Florida ruled that in a medical negligence action, “a physician cannot insulate himself . . . from liability . . . by presenting a subsequent treating physician who testifies that adequate care by the defendant physician would not have altered the subsequent care.” Prior to the Supreme Court’s repudiation of this type of testimony, trial courts typically permitted experts to opine about this issue, leaving the propriety of numerous medical malpractice decisions in dispute. Indeed, the Fourth District Court of Appeal was recently tasked with addressing this issue in Cantore ex rel. Felix v. West Boca Med. Ctr., Inc., in which the court needed to determine whether a trial court’s admission of a subsequent treating physician’s testimony required a new trial.

Cantore arises from an adverse jury verdict in a medical malpractice case brought by the parents of a minor against West Boca Medical Center and Variety Children’s Hospital (a.k.a. Miami Children’s Hospital). Two years prior to the incidents at the heart of this case, the minor was diagnosed with hydrocephalus, which is a condition characterized by the excessive buildup of cerebral spinal fluid in the cranium. The minor’s case of hydrocephalus was caused by a benign tumor that blocked the outflow of fluid from her cranium. At that time, the minor underwent a procedure to correct the blockage. However, scar tissue began to develop and was uncovered by a CT scan performed about two years later at West Boca, showing that spinal fluid had begun to accumulate again. A doctor at Miami Children’s scheduled the minor for another corrective procedure.

September 30, 2015

Holderbaum v. Carnival Corp.: A Look at Expert Evidence in Personal Injury Litigation in Florida

by Frankl Kominsky Injury Lawyers

Although we associate expert testimony with complex cases involving medicine or large explosions, expert testimony can be important in virtually any type of case, as long as the testimony will provide a jury with useful information that they may not possibly understand in the absence of expert guidance. For instance, expert testimony is used in many personal injury cases, and not only for assessing the nature of a plaintiff’s injury. Indeed, experts are also often enlisted to provide testimony regarding the circumstances of one’s injury. This sort of expert testimony was the subject of Holderbaum v. Carnival Corp., a recent decision from the United States District Court for the Southern District of Florida.

Holderbaum arose from an injury allegedly sustained abroad a Carnival cruise ship in 2013. The plaintiff claims that as she was about to descend a staircase on the ship, her shoe got stuck in the metal “wear-strip” at the top of the stairs. As a result, she fell down the stairs and suffered an injury to her lower leg and ankle. The plaintiff alleges that the metal strip was raised and that her shoe got caught in this gap between the metal strip and the carpeting. The plaintiff retained an engineer to examine the area where the injury occurred and provide analysis of the circumstances of her fall. The expert provided a report, and Carnival, the defendant, moved to exclude the expert evidence.

September 23, 2015

Florida’s First District Court of Appeal Reverses in Medical Negligence Suit

by Frankl Kominsky Injury Lawyers

Given the different procedural and substantive rules that apply in medical negligence cases, distinguishing medical negligence from ordinary negligence is a fundamental issue in cases that possibly implicate medical negligence. Indeed, many attorneys are aware of the far more arduous standards that apply to medical negligence, and they will often try to purposefully describe the facts and underlying legal theories of a case in order to avoid it being placed in the ambit of medical negligence liability. Although artful pleading can occasionally be successful, courts define medical negligence broadly and, as a result, stymie many creative attorneys’ attempts to avoid these heightened rules for liability. For instance, the scope of medical negligence was an issue in a recent decision from Florida’s First District Court of Appeal, Shands Teaching Hosp. and Clinics, Inc. v. Estate Of Lawson, which addressed whether an alleged act of negligence arising from services provided at a psychiatric unit qualified as “medical negligence.”

Lawson followed a tragic accident in January 2013. The plaintiff in this case is the estate of a woman who, two months prior to the date of the accident, had been admitted to the facility for a psychiatric condition. Although she was confined in a locked psychiatric ward, the woman was able to retrieve an employee’s unattended keys and badge and abscond from the facility. The woman went to a nearby interstate, where she was struck by an oncoming truck and died. Her estate brought suit against the facility, arguing that the defendant’s action amounted to “ordinary negligence.” The facility moved to dismiss, contending that the complaint sounded in “medical negligence,” and therefore the plaintiff needed to comply with the provisions of Section 766.106(1)(a) of the Florida Statutes. Since the plaintiff did not comply with the mandatory pre-suit requirements of Section 766.106(1)(a), the facility argued that the complaint should be dismissed.

September 16, 2015

South Florida Federal Court Denies Equitable Tolling in Cruise Ship Negligence Case

by Frankl Kominsky Injury Lawyers

Cruises are intended to be memorable and fun. However, a frolic on the sea is not free of risk. Indeed, the facts of a recent decision from the United States District Court for the Southern District of Florida, Pettit v. Carnival Corp., show that sea voyages are not without potential mishaps.

The accident at issue in Pettit occurred on September 24, 2013. The plaintiff in this case was a passenger on the Carnival Breeze. While at sea, the plaintiff slipped and fell, leading to various physical injuries. Once back on the ground, the plaintiff brought suit against Carnival in a Florida state court in Miami-Dade County. However, the contractual terms on the plaintiff’s ticket, in particular the forum selection clause, required that she bring suit in the United States District Court for the Southern District of Florida. Two months afterward, the plaintiff finally served Carnival. Carnival then moved to dismiss the suit based on improper forum. Realizing the error, the plaintiff then filed the complaint in federal court. This, however, didn’t solve the plaintiff’s trouble. The ticket contract also included a statute of limitations provision that afforded passengers only one year to bring personal injury suits. The plaintiff had filed her state court suit only 12 days before the expiration of the contractual statute of limitations, and by the time the plaintiff filed suit in federal court the statute of limitations had long elapsed. Carnival moved for summary judgment, asserting the plaintiff’s claim was time-barred. The plaintiff opposed, arguing that the statute of limitations should be equitably tolled. Unfortunately for the plaintiff, the trial court concluded otherwise.

September 9, 2015

Florida’s Fifth District Rules in Auto Accident Appeal

by Frankl Kominsky Injury Lawyers

It’s often difficult for a driver who rear-ends another vehicle to avoid some form of liability. Indeed, although many other types of car accidents can occasion genuine discussion about apportioning fault between parties or determining whether a particular driver was in fact negligent, accidents involving one car rear-ending another almost invariably lead to liability for the driver who strikes the other in the back. In fact, Florida’s Fifth District Court of Appeal recently reversed part of a trial verdict that, in its judgment, inappropriately apportioned fault to the driver in a stationary vehicle that was rear-ended by another.

As noted above, this case, Bodiford v. Rollins, arose from a rear-end collision. The plaintiff was waiting to make a left turn at an intersection when the defendant’s car rammed into the back of his vehicle. The plaintiff sustained serious injuries as a result and brought suit against the driver of the other vehicle. The case proceeded to trial, after which the jury awarded the plaintiff more than one million dollars in damages. However, the jury also found the plaintiff to be 13% at fault, and the court reduced the damages award by that percentage. The defendants appealed, asserting various arguments against the jury’s ruling. In addition, the plaintiff cross-appealed, asserting that the jury erred in apportioning any fault to him and that the trial court, therefore, should have granted his motion for judgment notwithstanding the verdict.

August 26, 2015

Florida’s Second District Court of Appeal Reverses and Compels Arbitration in Nursing Home Abuse Case

by Frankl Kominsky Injury Lawyers

In light of Florida’s large elderly population, it’s not surprising that the Florida legislature has specifically passed legislation providing specific rights to those who reside in nursing homes. See §§ 400.022-.023, Fla. Stat. (2010). However, among the many rights encompassed in these provisions is not one assuring that these rights must be adjudicated in a court. Indeed, these claims, like many others, can be subject to compelled arbitration when an unwitting party signs away his rights to formal adjudication. Given that arbitration can pose the risk of unfair or inadequate adjudication of rights, the enforceability of these provisions is often a topic of litigation. For instance, the Second District Court of Appeal recently issued its decision in Greenbrook NH, LLC v. Estate of Sayre, which addressed whether an arbitration agreement entered into by the daughter of a nursing home resident was enforceable.

Sayre arose from an alleged act of negligence at a nursing home facility in St. Petersburg, Florida. The plaintiff in this case is the daughter of a deceased nursing home resident who brought this action as the representative for the decedent’s estate. The decedent resided at the nursing home for most of 2011. Following the death, the plaintiff brought suit against the nursing home for both negligence and the violation of the decedent’s nursing home resident’s rights under §§ 400.022-.023 of the Florida Statutes. At the time the daughter placed her mother in the nursing home, she signed an arbitration agreement as her mother’s authorized legal representative. In light of this arbitration agreement, the nursing home moved to dismiss and compel arbitration. The trial court denied the motion, finding that the agreement was invalid and unenforceable because portions of the copy of the arbitration agreement proffered to the court were obscured. The nursing home then brought the current appeal, arguing that despite the photocopying error, the trial court’s factual finding was in error because the other terms of the agreement were sufficiently clear and definite to make the agreement enforceable.

August 19, 2015

Florida’s First District Court of Appeals Rules that Statute of Limitation Applies in Auto Accident Case

by Frankl Kominsky Injury Lawyers

Although the law is fundamentally concerned with justice, justice often requires that a party take timely action to redress her harm. Indeed, negligence cases are subject to various statutes of limitations, and many would-be litigants have gone to court only to find that their claims, irrespective of their merits, have been lost because of the passage of time. Although many statute of limitations cases relate only to a plaintiff’s failure to take timely action, a recent decision from the First District Court of Appeals, Russ v. Williams, involved an intriguing situation when a defendant’s “mischief” helped assure that a plaintiff’s claims would be time-barred.

Although the merits of the claims were ultimately not reached in Russ, the case arose from a motor vehicle crash on May 15, 2009. The plaintiff alleged that the defendant’s negligence led to the accident and filed the complaint in this case in November 2012. The complaint was served on the defendant on March 1, 2013. On May 23, 2013, one week after the statute of limitations had elapsed, the defendant moved for summary judgment, arguing that his wife was actually the one operating the vehicle at the time of the crash and was the sole owner of the vehicle. The plaintiff moved to amend the complaint in order to add the defendant’s wife as the proper party. The defendant opposed the motion, arguing that the defendant’s wife was an entirely new party and that any claims against his wife were time-barred because the statute of limitations period had passed. The trial court granted the plaintiff’s motion to amend the complaint but reserved judgment on any statute of limitations issues. The claims against the original defendant were dismissed.

August 12, 2015

Florida’s Second District Court of Appeal Affirms Denial of Discovery in Medical Negligence Case

by Frankl Kominsky Injury Lawyers

Many medical negligence actions are characterized by information asymmetry. Indeed, although a person may be aware that she has been injured, she may be unaware of the source of this injury and, moreover, whether the conduct leading to the injury was actually negligent. Given the imbalance in information that often exists, discovery is of particular importance in many medical malpractice cases. In fact, since 2004 the Florida Constitution has contained a provision that affords citizens a right to access particular information in medical negligence cases. The breadth of this provision, Fla. Const. article X, section 25, was recently addressed in a decision from Florida’s Second District Court of Appeal, Bartow HMA, LLC v. Edwards.

Edwards arose from an alleged act of medical negligence during a gallbladder removal surgery that resulted in the severing of the plaintiff’s common bile duct. Following this surgery, the plaintiff brought suit against the hospital where the surgery was performed and the physician who performed the procedure. During discovery, the plaintiff served the hospital with a request for all documents created within the five years prior to the procedure that related to the physician’s treatment of any patient and for all documents related to the hospital’s review of the plaintiff’s care and treatment. The hospital did not comply with the request in its entirety, arguing that certain documents were subject to privilege and thus beyond the bounds of discovery. Among the documents the hospital declined to produce were those related to a peer review of the adverse medical incident at issue that was requested by the hospital’s counsel. The plaintiff brought various motions seeking disclosure of the documents, and the trial court eventually entered an order requiring the hospital to produce all documents related to its peer review of the adverse medical incident. The hospital then brought this interlocutory appeal.