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July 24, 2014

Survival of Florida Loss of Consortium Claims

When a person is seriously injured by someone else’s negligence, he or she may have a personal injury claim. The injured person’s spouse may also have a claim for loss of consortium. A loss of consortium claim compensates the spouse of an injured person for the damages suffered by that spouse, including loss of society and companionship of the injured person as a result of the injury.


The Fifth District recently ruled on a case in which the injured person passed away before the personal injury and loss of consortium claims were resolved. The issue was whether the loss of consortium claim could continue. This case arose when the husband was allegedly injured while riding a roller coaster at a theme park. The husband and wife jointly filed suit against the theme park for personal injury and loss of consortium. The husband died while the case was pending. The parties were in dispute as to whether the injuries caused his death. The wife did not timely move to substitute herself as personal representative and the trial court dismissed both the personal injury and loss of consortium claims. The wife then filed a motion for rehearing on the loss of consortium issue, which was denied.

This case is not the first time the Fifth District has addressed this issue. In a previous case, the Fifth District held that a wife’s loss of consortium claim survives the death of her husband, even though it is derivative of his claims. The Third District, however, held in a similar case that a loss of consortium claim did not survive the death of the injured spouse. In its case, the Third District certified conflict with the previous Fifth District decision and suggested that a derivative cause of action could not exist absent a primary cause of action.

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July 21, 2014

Defense Expert Testimony of Necessity of Treatment in Florida

The Fourth District has recently clarified when a defense expert’s testimony regarding a plaintiff’s medical treatment should be excluded. In Boyles v. A & G Concrete Pools, Inc., the plaintiff was injured when the utility truck in which he was riding was rear-ended by another vehicle. He sought treatment from a chiropractor, an orthopedic surgeon, and then a neurosurgeon for neck and back injuries.


The orthopedic surgeon performed a lumbar procedure and later a cervical procedure, which was unsuccessful. The plaintiff then sought treatment from the neurosurgeon, who also performed neck and back surgery on the plaintiff.

The plaintiff did not tell either the orthopedic surgeon or the neurosurgeon of the 2001 injuries or intervening treatment until they learned of it independently and questioned him. When they asked, he told each of them that those problems were resolved and he had not been receiving treatment at the time of his 2008 accident.

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July 18, 2014

Stacking Florida Uninsured Motorist Coverage

Uninsured motorist coverage can provide important benefits to automobile accident victims. Uninsured motorist coverage is first party insurance that provides benefits when the insured is injured by an uninsured motorist. In Florida, two types of uninsured motorist coverage are available—stacked and non-stacked. A person who pays the premium for stacked uninsured motorist coverage may “stack” multiple policies and recover under more than one of them for a single incident. A person who does not purchase stacked coverage may only recover under one uninsured motorist policy even if he or she has more than one vehicle with “non-stacked” uninsured motorist coverage.


The 11th Circuit recently reviewed a case in which a motorcyclist attempted to stack multiple uninsured motorist policies. In Brannan v. GEICO Indemnity Company, the motorcyclist was injured when an automobile struck him. At the time of the accident, he had $10,000 in stacked uninsured motorist coverage on the motorcycle as well as policies on three automobiles. He sought $300,000 in uninsured motorist coverage under the automobile policy, but the insurer denied the claim because he had specifically rejected stacked coverage on all three automobiles.

If an insured purchases non-stacked coverage, he or she is not entitled to benefits under that policy while occupying another vehicle that he or she owns. The insurer, therefore, was not obligated to pay benefits under the automobile policy when the insured was injured on the motorcycle.

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July 17, 2014

Florida Supreme Court Holds Subsequent Physician's Testimony Irrelevant in Medical Malpractice

The Florida Supreme Court recently clarified a conflict among the districts regarding testimony of a subsequent treating physician in a medical malpractice action. In Saunders v. Dickens, the personal representative pursued the appeal after her husband passed away. The deceased man visited a neurologist for back and leg pain, unsteadiness, foot and hand cramps, hand numbness, and tingling in his feet. The neurologist determined that the hand numbness was the result of diabetic peripheral neuropathy, but did not conduct any tests. An MRI of the man's brain and lumbar spine showed severe spinal stenosis.


The neurologist then requested a neurosurgical consultation. The man did not tell the neurosurgeon of problems in his hands and arms, nor did the neurosurgeon observe any. The neurosurgeon reviewed the MRI, ordered further radiological images of the lumbar spine. The neurosurgeon performed a lumbar decompression procedure.

When the man did not show improvement, the neurosurgeon ordered additional MRIs, which showed compression in the lower back and neck. The man told the neurosurgeon the symptoms in his hands and arms had grown worse. The neurosurgeon then recommended cervical decompression surgery within the month, but did not schedule the surgery when the man was medically cleared for surgery, and the man developed deep venous thrombosis the following month.

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July 14, 2014

Florida Independent Medical Exams and Multiple Defendants

When a plaintiff alleges mental or physical injury occurred as the result of an accident, the defendant is generally entitled to request that the plaintiff submit to an examination by a qualified expert pursuant to Rule 1.360 of the Florida Rules of Civil Procedure. In such circumstances, the defendant is generally allowed the first Independent Medical Examination (“IME”) without any further showing, but Florida courts have held that requests by the same defendant for additional IMEs require a stronger showing of necessity.


In a recent case, the Third District considered what happens when multiple defendants each request an IME. In Goicochea v. Lopez, the plaintiff, Ms. Lopez, filed suit against multiple defendants for injuries she allegedly sustained in three separate automobile accidents. Although the accidents were unrelated and separated in time, she claimed that her injuries were indivisible and that she was unable to apportion her injuries among them. Mr. Goicochea, a defendant involved in a November 2007 accident, requested the plaintiff submit to an orthopedic IME. Two other defendants who had been involved in a July 2007 accident also requested that the plaintiff submit to an orthopedic IME by a different doctor.

The plaintiff then moved for a protective order that would limit all of the defendants to a single orthopedic IME. The trial court sustained the motion and limited the defendants to a single IME per medical specialty. Mr. Goicochea then filed a writ of certiorari. He argued that the limitation put in place by the trial court was a deviation from the law that would subject him to irreparable harm that could not be remedied on appeal.

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July 10, 2014

Florida Extended PIP Coverage

Drivers and vehicle owners should have appropriate policy limits, for both liability and first party coverage. Unfortunately, insurance policies sometimes contain complex language or contradictory terms, making it difficult to fully understand the coverage provided. The First District recently decided a case regarding ambiguous language in a policy providing Extended PIP coverage.


“PIP” stands for “Personal Injury Protection.” It provides first-party, no-fault medical and disability benefits to the driver and passengers of the vehicle at the time of an accident, any person struck by the vehicle while not occupying a vehicle, and the insured and his or her resident relatives. Pursuant to 627.736, Florida Statutes, PIP is required to pay 80% of the cost of reasonably necessary services as set forth in the statute, with required policy limits of $10,000, but an insured may purchase additional coverage, known as “Extended PIP.”

In Spaid v. Integon Indemnity Corporation, the plaintiff sought a declaratory judgment as to the limits of her Extended PIP coverage. She had incurred in excess of $10,000 in medical bills as a result of an automobile accident. She requested that her insurer pay “all medical expenses” but the insurer refused to pay more than $10,000, claiming that was the limit of its liability under PIP and Extended PIP. The plaintiff amended her complaint, requesting a declaratory judgment that the insurer was required to pay all reasonable related medical expenses without a limit of liability. Both parties moved for summary judgment. The plaintiff argued that neither the Extended PIP Endorsement nor the Declarations page of her policy referenced a limitation of liability. She further argued that any ambiguity would have to be decided in her favor. The trial court granted summary judgment in favor of the insurer, holding that the Extended PIP Endorsement did not modify or change the $10,000 limits of liability in the Basic PIP Endorsement. The plaintiff appealed.

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June 16, 2014

Effect of Defendant's Bankruptcy on Florida Injury Cases

Insurers have a duty to act in good faith when handling claims. When a liability insurer’s breach of its duty of good faith results in a judgment in excess of policy limits against its insured, a bad faith claim may arise. Often, the “bad faith” occurs when the insurer unreasonably refuses to settle for policy limits or less, leaving the insured exposed to potential excess liability. In Florida, either the insured or the injured third party may be able to bring a bad faith suit against a liability insurer. When one of the parties to a personal injury case is involved in a bankruptcy case, the other party may be affected. A recent Second District case examined how a negligence action, bankruptcy, and potential bad faith action interact.


In Whritenour v. Thompson, the plaintiff filed a negligence suit against the defendant as the result of an automobile accident. The defendant’s insurer hired a defense attorney who advised the defendant to file bankruptcy. In the Chapter 7 bankruptcy petition, the defendant listed the personal injury claim in with a value of more than one million dollars.

The plaintiff moved for relief from the automatic stay, which the bankruptcy court granted “for the purpose of pursuing [the defendant’s] insurance carrier and not for the purpose of pursuing personal liability against [the defendant].” The order also included language stating that the plaintiff was to file another motion if she wanted to proceed against the insurance company for excess judgment.

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June 12, 2014

Stolen Vehicle Defense in Florida Owner Liability Cases

As this blog has previously discussed, Florida vehicle owners are subject to liability for the negligence of a permissive driver. One way owners can defend against negligence arising from their ownership of a vehicle is to assert that the driver did not have permission to drive the vehicle.

In a recent Second District case, a plaintiff presented evidence that the defendant made a practice of claiming its vehicles were stolen when those vehicles had been involved in accidents. In Bellamy v. AmeriPride, Inc., the plaintiff had been rear-ended by a truck owned by the defendant company. The company defended by claiming that the driver had never been an employee of the company and had actually stolen the truck. The court granted summary judgment to the defendant based on an affidavit by its president stating that the driver had never been an employee, had stolen he vehicle, and had no authority to operate the vehicle.


The defendant’s motion was granted despite facts in the record presented by the plaintiff that suggested that the driver did in fact have authority to drive the vehicle. The plaintiff’s affidavit stated that the driver had given the police officer a business card with the defendant company’s logo and information, including the name of the company’s Director of Operations. The plaintiff called the number and spoke to someone claiming to be that person who offered to settle the claim. The plaintiff attached a copy of the card to his affidavit. The police report indicated that the driver had provided an insurance card showing the company’s carrier and policy information.

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June 9, 2014

Arbitration Agreements for Florida Nursing Home Residents

The Third District has recently held that an arbitration agreement signed by a nursing home resident’s son during the admission process was valid, even though the son did not have power of attorney to sign on behalf of his father at the time.


A nursing home doctor determined that the father was unable to give informed consent or make medical decisions. His son signed the admissions documents, including the agreement for care, which contained an arbitration clause. During his time at the facility, the father’s eye became infected and had to be removed. The father subsequently gave power of attorney to his son, and the son ultimately filed a negligence action related to the care his father received in the nursing home.

The nursing home moved to compel arbitration based on the son’s execution of the agreement of care. The son argued that his father was not a party to the contract and the arbitration clause was therefore not binding as to his father. The trial court granted the motion, and the son appealed.

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June 6, 2014

Boca Raton Man Facing Contempt for Facebook Posts

Although social media has become an important part of society, it is not always an asset. A new set of legal issues has arisen around social media. This blog has previously discussed discovery of social media postings and the loss of settlement funds when a social media post violated the confidentiality agreement. Attorneys have had concerns about jurors’ internet use for years. Whether jurors use the internet to research the case or improperly disclose information, jurors’ online activity has the potential to jeopardize the fairness and impartiality of the system. Florida courts are also showing concern about this issue.


According to news reports, a Boca Raton man is facing contempt of court charges and up to six months incarceration as the result of posting on Facebook during his service as a juror in an automobile accident case. The man was reportedly removed from the courtroom in handcuffs after one of the attorneys in the case reported the posts to the judge. The juror was ordered to remove the comments from his Facebook page. Those comments have not been made public, but the attorney has stated that they included specific information about the case. This certainly is not the first case in which a juror has faced contempt charges for posting to social media, but the case has drawn some media attention as a result of the man being taken in handcuffs. News articles also state that the man lied when questioned by the judge about the postings.

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June 2, 2014

Surveillance Footage Insufficient for Fraud on the Court Dismissal

Attorneys and parties to litigation have a duty to be honest with the court. In Florida, courts may dismiss a case when a plaintiff has committed fraud on the court. The Fifth District has recently released an opinion regarding fraud on the court. In the case of Guillan v. Vang, the trial court dismissed the personal injury lawsuit arising from an automobile accident after determining the plaintiff had perpetrated a fraud on the court. This determination was based on video surveillance that appeared to show the plaintiff engaging in activities that he allegedly claimed he was unable to do in his deposition testimony.

The district court, however, found that the surveillance DVD did not constitute clear and convincing evidence that the plaintiff had engaged in an “unconscionable scheme” designed to interfere impartial adjudication of the matter by improperly influencing the trier of fact or unfairly hampering the other party’s presentation of their case. The court noted that any discrepancies between the surveillance DVD and the testimony should be resolved by the jury. Referencing prior case law that held that juries are entrusted with the final determination as to whether claimed injuries are genuine in all but the most extreme cases, the Fifth District reversed the trial court’s decision and remanded the case for further proceedings.


This case, along with Bosque v. Rivera, suggests that the Fifth District currently take dismissals for fraud on the court very seriously. Such a dismissal deprives the plaintiff of his or her right to present the case to a jury and should therefore be a rare occurrence. For a dismissal on the grounds of fraud on the court, there must be clear and convincing evidence that the plaintiff deliberately engaged in a scheme to subvert the judicial process. Because a dismissal for fraud on the court essentially kills the plaintiff’s case, it is appropriate only in egregious cases.

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May 29, 2014

Florida Offers of Judgment

Screen%20Shot%202014-05-28%20at%209.40.20%20AM.pngIn civil cases in Florida, parties may make an “offer of judgment” to resolve the case. An offer of judgment is a proposal of settlement that occurs after suit has been filed. Pursuant to section 45.061, Florida Statutes, if the defendant files an offer of judgment and the plaintiff fails to accept it within 30 days, then the defendant may recover attorney’s fees and costs if the judgment is one of no liability or an award of an amount that is 75% or less of the offer. Florida Rule of Civil Procedure 1.442 provides the specific requirements of such proposals. The rule requires, in part, that conditions and nonmonetary terms must be stated with particularity.

The Fifth District recently decided a case addressing the validity of an offer of judgment by one defendant that would release all of the defendants. Mathis v. Cook arose when a woman slipped and fell on chemicals used to clean the floor at the drugstore where she worked. The store had contracted with a cleaning company which then contracted with Joseph and John Cook to perform the services. The woman and her husband filed suit against Joseph Cook, John Cook, and the cleaning company. Prior to trial, John Cook served separate proposals of settlement to the woman and her husband for their respective damages.

The proposals specifically stated that they were made on behalf of John Cook. They were conditioned on the execution of the attached release, which released the cleaning company and Joseph Cook as well as John Cook. The proposals were not accepted and the case went to trial. The jury found the Cooks were not negligent. John Cook then moved for attorney’s fees based on the proposals for settlement. The trial court denied the motion, holding that the proposals were ambiguous. John Cook appealed.

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