South Florida Injury Attorneys Blog

October 22, 2014

Fourth District Court of Appeal Holds That Prior Jury Determination is Binding in Uninsured Motorist Case

Uninsured or underinsured motorists are not an uncommon problem in Florida. A recent study conducted by the Insurance Research Council showed that in 2012 Florida ranked second in the nation in the number of uninsured drivers, with approximately 3.2 million of the state’s drivers being uninsured at the time. In fact, Florida had only about a million fewer uninsured drivers than California, even though The Golden State boasts a population nearly twice the size of The Sunshine State. Beyond placing their personal pocketbooks in peril, uninsured and underinsured motorists often create legal hassles for those with whom they happen to collide. The sort of frustrations commonly occasioned by accidents with uninsured motorists are at the center of a recent case from the Fourth District Court of Appeal, Geico General Insurance Company v. Paton. Paton involved a dispute between an injured passenger and an insurance company that refused to pay the full policy limit of uninsured motorist benefits following an accident involving an underinsured motorist.

The plaintiff in Paton was injured in a car accident resulting from the negligence of an underinsured driver on January 1, 2008. The driver’s insurance provider, Geico, paid the injured plaintiff $10,000, which was his policy limit. The injured plaintiff’s mother, however, maintained uninsured/underinsured motorist coverage with Geico with a policy limit of $100,000. The injured plaintiff’s attorney made a formal demand to Geico to pay the full policy limit. Geico objected and offered $1,000 in exchange. Subsequent negotiations followed, but Geico never offered more than $5,000 during the course of this back and forth. Eventually, the dispute went to trial, and a jury returned a verdict in favor of the plaintiff and fixed damages, including present and future pain and suffering, at $469,247. Geico did not move for a new trial, and judgment was entered in the plaintiff’s favor but limited to the $100,000 policy limit. The plaintiff then, with the leave of the court, amended her complaint to include a claim for bad faith under § 624.155 of the Florida Statutes. Before a second trial with respect to the added bad faith claim, the plaintiff moved in limine to exclude evidence of damages from the second trial and fix those damages at the amount that was not recovered at the first trial, $369,247. Geico then moved to exclude from evidence in the bad faith trial the damages awarded in the prior underinsured motorist trial and force the plaintiff to prove bad faith damages anew. The trial court granted the plaintiff’s motion and denied Geico. After a second trial, the jury returned a verdict for the plaintiff, and the court awarded damages of $369,247. Geico then appealed.

October 15, 2014

Supreme Court of Florida Resolves Conflict in Broward Medical Malpractice Case

by Frankl Kominsky Injury Lawyers

Medical malpractice litigation is not uncommon in Florida. As a result, many state courts have had the occasion to weigh in on the proper standard for medical negligence liability. Although there is harmony among state courts regarding most issues, division does occasionally arise and consequently require resolution by Florida’s highest court. For instance, in one recent case, Saunders v. Dickens, the Supreme Court of Florida resolved a conflict among various state appellate courts regarding the burden of proof for negligence in a medical malpractice action.

The alleged acts of medical negligence that gave rise to Saunders started on July 7, 2003. On that day, the plaintiff visited a neurologist and described symptoms including cramping and feelings of numbness in his extremities, back pain, leg pain, and unsteadiness. After this visit, the plaintiff was admitted to a hospital, where he underwent several MRIs, which did not include an MRI of the cervical spine area. The neurologist then consulted with a neurosurgeon after receiving the results of the MRIs. The neurosurgeon recommended a lumbar decompression procedure, and the plaintiff underwent surgery. However, the plaintiff’s condition failed to improve following the surgery. At this point, the plaintiff returned to the neurosurgeon, who conducted further exams and determined that the plaintiff was experiencing cervical decompression, which would require additional surgery. The surgery was never scheduled, although the plaintiff had been cleared for surgery on November 6.

However, the plaintiff experienced a deep vein thrombosis in December, which prevented the plaintiff from scheduling or undergoing surgery thereafter. The plaintiff then consulted with a different physician, who recommended a second lumbar decompression surgery as well as a cervical decompression surgery. The plaintiff underwent the lumbar surgery but never underwent the cervical surgery. The plaintiff’s condition continued to deteriorate and ultimately resulted in quadriplegia. During the pendency of this appeal, the plaintiff died.

October 8, 2014

Supreme Court of Florida Answers Certified Question Regarding Dangerous Instrumentality Doctrine

by Frankl Kominsky Injury Lawyers

The dangerous instrumentality doctrine is a long-established principle of tort law. Under this doctrine, a person with a property interest in a vehicle is vicariously and strictly liable for the injuries that result from negligent operation of that vehicle by a person to whom he or she granted custody of it. Although the principle is well established, questions regarding its application still arise. For example, in one recent case, Christensen v. Bowen, the Supreme Court addressed a question that arose from it, which had been certified to it by the Fifth District Court of Appeal.

Bowen arose from a motor vehicle accident that occurred in early 2005 when one of the defendants, the former wife of the other defendant, negligently struck and killed another person while operating the vehicle. At the time of the accident, title to the vehicle remained in the name of both the defendants, although the vehicle had been purchased while the defendants were in the process of getting a divorce. At the time of purchase, the then-married defendants signed an application for certificate of title to be issued to them as owner and co-owner. The then-husband never received copy of the certificate of title, since it was mailed to his wife’s address. In addition, the then-husband never had keys or access to the vehicle. Following the accident, the estate of the deceased brought suit against the driver and her former husband. The former wife moved for a directed verdict on the ground that her former husband was an “owner,” but the trial court denied the motion. A jury eventually found that the former husband was not an owner for purposes of applying the dangerous instrumentality doctrine, but his former wife appealed, arguing that the trial court erred by not granting her motion for a directed verdict on ownership. The Fifth District Court of Appeal agreed but certified the question to the Supreme Court of Florida as a question of great public importance.

September 24, 2014

Fourth District Court of Appeal Declines to Enforce Arbitration Provision in Elder Abuse Case

by Frankl Kominsky Injury Lawyers

Florida has long served as a destination for America’s elderly population and, as a result, has also become home to a considerable number of retirement homes and assisted living facilities. Regrettably, despite the best efforts of the Florida’s Department of Elder Affairs, the care residents at these facilities receive remains an issue. Even when cases of elder abuse are properly identified, many litigants encounter a variety of problems when they bring legal action to redress their grievances. Among these issues is the pervasive use of arbitration clauses in retirement home and assisted living facility contracts. However, notwithstanding the ubiquity of arbitration provisions, the Fourth District Court of Appeal again took a firm stance against their enforceability in its recent decision in Lopez v. Andie’s, Inc..

Lopez arose from allegations involving resident care at Willow Manor Retirement Home, an assisted-care living facility in Dania Beach, Florida. Following an incident in 2011, which resulted in a severe fracture to a resident’s arm, the resident brought suit against the facility. However, shortly after the case was filed, the defendant moved to compel arbitration, arguing that the arbitration provision in the agreement executed between the resident and Willow Manor at the time of the resident’s admission required that any controversy or dispute between the parties be determined through a binding arbitration proceeding held in accordance with the American Health Lawyers Association (“AHLA”) alternative dispute resolution rules. After the trial court granted the defendant’s motion to compel arbitration, the plaintiff brought an appeal, arguing that the arbitration procedures were contrary to public policy and thus unenforceable.

September 17, 2014

Federal District Court Grants Summary Judgment in Medical Malpractice Case

by Frankl Kominsky Injury Lawyers

A common legal issue that arises in the context of imprisonment or other forms of detention is liability for failing to provide or negligently providing medical care to those detained. Irrespective of the location of medical malpractice, however, common evidentiary standards required for medical malpractice actions apply. These issues are at the core of the Southern District of Florida’s recent decision in Segundo v. United States, which involves claims alleging negligence on the part of the medical staff leading to the cardiac death of a detainee at Krome Detention Center in South Florida.

The detainee had been transferred to Krome Detention Center in 2010, and his Transfer Summary noted his severe, preexisting diabetes. At the time of booking, the detainee underwent a medical evaluation that corroborated this prior medical history of diabetes. Following admission, the detainee continued to take oral diabetic medications, and his blood glucose level was checked twice a day. The admission medical evaluation also included a screening EKG, the results of which came back normal and did not indicate any acute or chronic myocardial ischemic changes or other findings associated with coronary artery disease. From the time of his arrival until the day before his death, the detainee did not complain of chest pain, shortness of breath, weakness, fatigue, or other symptoms associated with cardiac dysfunction.

However, the day before his death, Krome medical staff evaluated the detainee for a sore throat, runny nose, and cough. The day after, the detainee stated he felt ill but was nonetheless communicative and able to move. While staff was taking the detainee to the Urgent Care Center at the Krome compound, he suffered an arrhythmia and died. A autopsy report found the detainee’s cause of death to be severe atheroscleros in the left anterior descending coronary artery. Given the normal EKG just days before the death, no evidence in the record suggested that medical staff at Krome should have predicted the subsequent cardiac death. Following the detainee’s death, the personal representative for his estate brought a wrongful death lawsuit against the United States under the Federal Torts Claims Act, alleging negligence on the part of Krome’s officers, agents, and employees.

September 10, 2014

Federal Court Denies Motion to Dismiss in Premises Liability Case at Sawgrass Mills Mall

by Frankl Kominsky Injury Lawyers

Although it is uncommon for premises liability cases to find their way to federal court, the specifics of a case occasionally make resolution in the federal setting possible. When such federal adjudication is accessible, litigants will often strategically use the availability of the federal forum – and, more importantly, the differences in its rules – to their advantage. A recent case from the Southern District of Florida, Fink v. Burlington Coat Factory of Florida, LLC, provides an example of this strategic use of forum selection.

Fink arose from a slip and fall accident at the Burlington Coat Factory in Sawgrass Mills Mall. As a result of the fall, the plaintiff suffered a variety of severe injuries, and she decided to bring a premises liability suit against Burlington Coat Factory and several other defendants. In her complaint, the plaintiff made somewhat conclusory allegations of negligence. Specifically, the plaintiff stated that the defendants negligently maintained the floor in a bumpy and unsmooth condition, which was characterized by unsafe protrusions. However, the plaintiff did not state any particular condition or characteristic that existed and directly caused her fall. The plaintiff originally brought her suit in state court in Broward County, but the defendants, recognizing that the action could have been brought in federal court, had the case removed to the Southern District of Florida pursuant to 28 U.S.C. § 1332(a). After removing the case to federal court, the defendants brought a motion to dismiss, arguing, in part, that the plaintiff’s pleadings were insufficient to maintain her cause of action based on the federal pleading standards delineated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009).

For many standard causes of action, both state and federal procedural rules provide form documents outlining the essential facts and allegations one can plead to bring a case. In the instant case, the plaintiff’s complaint was substantially similar to the form pleadings for “fall-down negligence” claims provided by the Florida Rules of Civil Procedure. See Fla. R. Civ. P. Form 1.951. Although the action had been brought in state court, where such pleading would have been sufficient, the defendants nonetheless argued that Florida form pleading was insufficient under federal pleading standards. One can see the irony of this argument, considering it was the defendants who brought the case to federal court. However, despite the defendants’ calculated use of the federal removal statute, the court determined that, irrespective of the heightened pleading standard in federal court, the plaintiff’s factual allegations were sufficient to overcome the motion to dismiss.

September 3, 2014

Third District Court of Appeal Reverses in Scuba Diving Wrongful Death Case

by Frankl Kominsky Injury Lawyers

With a seemingly endless coastline, Florida is a haven for water-based recreational activities. As the Third District Court of Appeal noted at the conclusion of its recent decision in Diodato v. Islamorada Asset Management, Inc., many Floridians and tourists in the state commonly enjoy recreational activities such as jet-skiing, para-sailing, and scuba diving. Although the vast majority of those who engage in these activities do so without incurring any injury, they remain hazardous activities, and participation does come with some degree of risk. In light of the attendant dangers posed by these and other forms of recreation, virtually every business in this field requires customers to sign contracts containing provisions commonly known as exculpatory clauses, which state that the customer assumes the risk associated with the activity. This practice is at the center of the controversy in Diodato, which involved the unfortunate drowning of an Arizonan woman during a deep-water wreck scuba excursion off the Florida Keys.

The aforementioned drowning occurred on April 15, 2010, although this was not the decedent’s first time diving. In fact, she had obtained PADI certification in Arizona and had previously gone on several other dives with the principal defendant in this lawsuit, Key Dives, an Islamorada-based recreational scuba diving company. The fatal dive, however, was an advanced deep-water wreck dive, which was unlike the open water reef dives she had previously done with Key Dives instructors. It is common practice at Key Dives for customers to sign a liability release prior to each dive. However, on this day of this dive, the decedent arrived late to the dock and was not required to sign a waiver. After submerging about 10 feet, the decedent signaled to one of the instructors that she would like to surface. The instructor followed her up but did not help her back on board the boat. While trying to board the boat, the decedent lost hold of the boat’s granny line and drifted away. In response, the captain signaled an alarm, and after a brief search, the decedent was found floating, but she had drowned.

Following the incident, the estate of the decedent brought a wrongful death action against Key Dives and several of its employees and agents. Although the decedent had not signed a liability waiver on the day of that particular dive, the defendants argued that other liability waivers signed by the decedent in connection with other Key Dives diving events covered the incident at hand and shielded the company from liability. Specifically, in August 2009, the decedent signed a liability waiver before a series of six open-water reef dives and initialed a provision on the contract that stated that the release was valid for one year from the date it was signed. In addition, the day before the deep-water dive, the defendant went on an open-water reef dive that was being used as preparation for the upcoming advanced dive and again signed a liability release. This release was identical to the one signed in August of the year before, but the decedent on this occasion did not initial the one-year provision. Although Key Dives intended for the decedent to sign a more thorough release form on the day of the fatal dive that covered particularities of the deep-water excursion, the decedent did not sign this release, since she, as mentioned above, arrived late, and the crew did not wish to delay other diving customers. Following discovery, the trial court granted summary judgment in favor of the defendants and held that the August 2009 and April 2010 releases covered the fatal diving event at issue, and, accordingly, the decedent had released Key Dives and its employees from liability.

August 27, 2014

Supreme Court of Florida Invokes Constitutional Provision in Decision on Proper Scope of Discovery in Medical Malpractice Suit

by Frankl Kominsky Injury Lawyers

Although the average course on civics or government thoroughly reviews the provisions of the United States Constitution, many overlook the importance of state constitutions as sources of important rights. While certain state constitutional provisions – for instance, the Florida Constitution’s analog to the Fourth Amendment – are interpreted co-extensively with their federal counterparts, some do provide particularized protections that should not be overlooked. In a recent case, Ampuero-Martinez v. Cedars Healthcare Group, the Supreme Court of Florida raised one such provision: Article X § 25(a) of the Florida Constitution.

Art. X § 25(a) of the Florida Constitution, titled “Patients’ right to know about adverse medical incidents,” provides Floridians with the right to “have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.” Ampuero-Martinez arose from a discovery dispute in a medical malpractice case involving the death of the plaintiff’s father at a medical facility in Miami-Dade County. The plaintiff sought medical records from the facility where her father’s death occurred, and the defendant medical facility objected to the production request. The trial court overruled this objection, but the defendant filed an immediate appeal to the Third District Court of Appeals, which reversed the trial court in part, holding that the trial court failed to properly limit discovery pursuant to § 381.028(7)(a) of the Florida Statutes.

The Supreme Court’s decision in Ampuero-Martinez is quite short for good reason. Three years prior to the Third District Court of Appeal decision, the Supreme Court of Florida had definitively held that § 381.028(7)(a) unconstitutionally contravened the constitutional protection afforded by Art. X § 25(a). See Florida Hosp. Waterman, Inc. v. Buster, 984 So.2d 478 (Fla. 2007). Consequently, the Supreme Court quashed the Third District’s decision and remanded the case to the trial court for reconsideration in accordance with the standards set forth in Buster. In Buster, the court held that several provisions of § 381.028, legislation that had been enacted by the Florida Legislature to “implement” and otherwise give force and effect to Art. X § 25(a), contravened the broad rights provided by the then newly-enacted constitutional provision. Specifically, the court noted the following conflicts:

August 20, 2014

Supreme Court of Florida Reverses in Pinecrest Personal Injury Case

by Frankl Kominsky Injury Lawyers

A night at the bar with friends does not typically end with someone wielding a tomahawk, but as you will see below, the facts of the Supreme Court of Florida’s decision in Dorsey v. Reider are not like those of a typical personal injury case.

In Dorsey, the plaintiff was injured at the conclusion of a night of imbibing with the defendant and another man with whom the defendant was acquainted at a bar in Pinecrest, Florida. On that night, the defendant, who was the friend of the plaintiff in this case, became increasingly belligerent and was threatening to fight others. In light of his friend’s conduct, the plaintiff used a few choice words to tell the defendant his behavior was obnoxious and proceeded to leave. The defendant and his friend followed. As the plaintiff walked through the parking lot, his path took him between the defendant’s truck and an adjacent vehicle. The defendant ran to the other side while the plaintiff was passing between the vehicles and blocked the plaintiff’s path as the acquaintance blocked him in on the other side. An argument ensued, which lasted for several minutes before the plaintiff heard the truck door open and turned to find that the acquaintance had procured a tomahawk from the truck. The plaintiff then asked the defendant, “What is this?” The defendant did not respond, and the plaintiff then attempted to push the defendant aside in order to escape. After about 15 seconds of struggle, the plaintiff was struck in the head with the tomahawk, which rendered him unconscious. The defendant and the acquaintance then fled. Sometime thereafter, the plaintiff awoke and drove himself to the hospital. As a result of the attack, the plaintiff suffered a variety of serious injuries and continues to suffer from blurred vision, dizziness, and chronic headaches.

Unsurprisingly, the plaintiff brought suit for his injuries. Following a jury trial, the plaintiff was awarded over 1.5 million dollars in damages. On appeal, the Florida Third Circuit Court of Appeal reversed the trial court decision. The Court of Appeal determined that the defendant, who did not actually strike the victim with the tomahawk, did not owe a duty of care to the plaintiff in this case, since there was “no evidence [the defendant] “colluded with [the acquaintance] or knew that [the acquaintance] had the tomahawk and would strike.” Reider v. Dorsey, 98 So.3d 1228 (Fla. 3d DCA 2012). The Supreme Court of Florida, however, determined that this holding was in error.
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August 13, 2014

Fourth District Court of Appeal Reverses Trial Court in Broward Auto-Accident Appeal

by Frankl Kominsky Injury Lawyers

As the Fourth District Court of Appeal’s opinion in Marina Dodge, Inc. v. Quinn demonstrates, sometimes the hardest part of a lawsuit is getting the opposing party in court. In Quinn, the Court of Appeals found that the courts of Florida could not exercise personal jurisdiction over two New York auto-retailer corporations that had been sued following a motor vehicle accident in Broward County, Florida.

As noted above, Quinn followed a 2007 motor vehicle accident that led to the serious injury of one of the drivers. The injured driver, the plaintiff in this case, purchased the vehicle involved in the crash in New York four years earlier, when she was still a resident there. Sometime after this transaction but before the accident, the driver relocated to South Florida, where she now resides. After the crash, the seriously injured driver sued the other driver involved in the accident as well as Marina Dodge, Inc. and Webster Auto Brokers, Inc., two New York auto retailing corporations, in the Broward County Circuit Court. With respect to the auto retailers’ liability, the plaintiff argued that the vehicle she purchased in New York was defective and that the defective condition led to the accident and thus her injuries. The corporations both moved to have the claims against them dismissed, arguing that the courts of Florida could not exercise jurisdiction over them. The trial court, however, denied both motions, stating that the corporations had “continuous contact that took place over years with various entities sufficient to permit jurisdiction to lie in the State of Florida.”

Despite the trial court’s certainty on the question of jurisdiction, the Court of Appeal reversed in a unanimous decision. Generally, there are two ways for a plaintiff to show that a court has personal jurisdiction over an out-of-state defendant. First, one can show that the court had specific jurisdiction. For specific jurisdiction to exist, one must first show that the state’s long-arm-statute covers the acts at issue in the suit. If that prong is met, one must then show that there exist sufficient “minimum contacts” between the out-of-state defendant and the state where jurisdiction is sought. For there to be sufficient “minimum contacts,” one must generally demonstrate that the defendant “deliberately [engaged] in significant activities within a State or has created “continuing obligations” between himself and residents of the [state]” such that “he manifestly has availed himself of the privilege of conducting business there.”Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-76 (U.S. 1985) (internal quotations marks and citations omitted). Alternatively, one can show that general jurisdiction exists. Since the Florida long-arm-statute provision for general jurisdiction is read coextensively with the constitutional requirement for general jurisdiction, see Caiazzo v. Am. Royal Arts Corp., 73 So.3d 245, 250 (Fla. 4th DCA 2011) (pdf downloadable link), one must just show that the defendant engaged in “continuous, substantial, and systematic” contact with the state.
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