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Plaintiffs in personal injury cases may be entitled to recover both economic and non-economic damages. Economic damages are intended to compensate for the economic loss suffered by the plaintiff, including medical expenses and lost wages. Non-economic damages, however, are not based on financial loss, but on losses that are more difficult to assess with a dollar value, such as pain and suffering and loss of companionship.

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A recent federal case in the Southern District of Florida considered whether a multi-million dollar award was appropriate under the facts of the case. In Wisekal v. Laboratory Corp. of America Holdings, a husband filed a medical malpractice lawsuit as the personal representative of his wife’s estate after she died from cancer. A jury determined that the decedent bore 25% comparative fault, but awarded more than $15 million after the comparative fault reduction. The defendant moved for a new trial and for judgment as a matter of law, and the court denied both. The defendant also moved for remittitur of both the economic and non-economic damages, and, alternatively, for a new trial on damages.

The court determined that the economic damages award was reasonably supported by the evidence and denied the defendant’s challenge to that part of the award.

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Jurisdiction is particularly important in Florida, where there are often tourists and visitors on the roads and engaging in various activities. Litigation against a non-resident presents some procedural challenges. Such cases often end up in federal court. Federal courts have original jurisdiction over civil cases between parties with diverse citizenship when the amount in controversy is greater than $75,000. Pursuant to 28 U.S.C. § 1441, a defendant can remove a case to federal court when the federal court has original jurisdiction.

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The Middle District of Florida recently ruled on a case in which the defendant insurer removed a case, based in part on the plaintiff’s pleadings. Jirau v. Wathen arose from an automobile accident. The plaintiff filed suit in state court against the other driver and against the plaintiff’s own insurer. The claims against the insurer included a claim for underinsured motorist benefits and a bad faith claim.

In the complaint, the plaintiff alleged that the defendant driver was a Florida resident at the time of the accident. The plaintiff had difficulty perfecting service and pled in the alternative that the defendant driver was a non-resident of Florida or was concealing his whereabouts. By pleading that the defendant was a non-resident or was concealing his whereabouts, the plaintiff would be able to perfect service on the Secretary of State as a substituted agent. The plaintiff did not have to serve the Secretary of State, but ultimately found and served the defendant driver at a Florida address.

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Pursuing a personal injury claim against the government is very different from pursuing a similar claim against an individual. Claims against the state of Florida, its agencies, or its subdivisions must be presented in writing before a lawsuit may be filed. Additionally, there are limitations in regards to the damages. Finally, certain claims against government entities may be precluded by sovereign immunity.

1443938_20970553 (800x533)In a recent case, the First District found that an injured woman’s claims against the Florida Department of Transportation were not precluded by sovereign immunity. In Bergmann v. Florida Department of Transportation, the plaintiff filed a negligence action against the Florida Department of Transportation (“FDOT”) after an automobile accident. She alleged that the FDOT was aware of a hidden hazardous condition that caused her collision, but that the FDOT did not correct the condition or warn her of the danger. The trial court dismissed the case, finding that the claims were precluded by sovereign immunity. The plaintiff then appealed to the First District Court.

Florida law provides a limited waiver of sovereign immunity in personal injury negligence claims against the state and its agencies and subdivisions. Sovereign immunity is not waived for all acts, however. Sovereign immunity remains for discretionary, judgmental, and policy-making functions. The Florida Supreme Court has stated that certain functions are inherent in governing and that it would be a violation of the separation of powers doctrine to allow those functions to be scrutinized by courts. Operational decisions, however, are not subject to sovereign immunity. In Department of Transportation v. Neilson, the Florida Supreme Court stated that building a road with a sharp curve would not create governmental liability, but a failure to warn the public that the curve could not be safely traveled at greater than 25 miles per hour could be a negligent omission at the operational level, and therefore subject to liability. Similarly, failure to maintain roads or traffic control devices could also be the basis of liability.

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Following procedural rules is important. Some deadlines can be extended by mutual agreement, but failing to meet deadlines that cannot be extended or without the agreement of the other party can be very detrimental to the case. The Third District recently heard a case related to the timing of a Motion for Summary Judgment. In Otero v. Gomez, the plaintiff had been hit by a car while riding his bicycle across an intersection. The defendant was not the driver of the car, but the owner of the adjacent property. The plaintiff alleged that a wall on the defendant’s property obstructed his view of oncoming traffic. The plaintiff alleged that the defendant was negligent in either creating the dangerous condition or allowing it.

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The defendant moved to exclude expert testimony that the wall’s obstruction of the view of drivers violated county ordinances and Department of Transportation standards. The defendant argued that such testimony was not relevant because the defendant did not owe a duty to the plaintiff. Four days later, the defendant filed a motion for summary judgment on the same basis. The trial court told the defendant it would not hear the motion for summary judgment before trial.

Eight days after the motion was filed and just days before trial, the defendant amended the motion in limine to exclude all evidence of Department of Transportation standards. The amended motion argued that the defendant owed no duty to the plaintiff and was not liable as a matter of law.

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Kong v. Allied Professional Insurance Company illustrates the procedural problems that can arise from a Coblentz agreement. The plaintiff filed suit in Florida state court against the woman who performed the massage during which the plaintiff alleged her ankle was broken. The masseuse’s insurer denied the claim. The original parties then entered into what appears to be a Coblentz agreement, though the 11th Circuit did not name it as such. The masseuse agreed to the entry of a judgment of more than $1 million and assigned her rights against the insurer to the plaintiff.

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The injured woman then sued the insurer in state court. The insurer, an Arizona corporation with offices in Arizona and California, removed the action to federal court on the basis of diversity. The plaintiff moved to remand, arguing that an insurer in a direct action is deemed a citizen of the state of the insured. The district court denied the motion.

The insurer moved to dismiss the case or stay it for arbitration. The insured had assigned her rights to the plaintiff, thereby binding the plaintiff to the arbitration clause in the policy. The Florida federal court ordered arbitration and administratively closed the case pending that arbitration.

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As previously discussed in this blog, general contractors on a construction project are considered “statutory employers” of the employees of their subcontractor. This issue generally arises in two circumstances: when the actual employer fails to procure workers’ compensation insurance and the employee looks to the statutory employer for benefits and when the statutory employer raises its immunity as a defense to a tort claim. A recent 11th Circuit case addressed what happens when the statutory employer does not raise immunity as a defense to the tort claim. In Stephens v. Mid-Continent Casualty Company, a man was working on a construction job. As he climbed down a ladder, it separated from the house and fell to the ground. The man did not survive. The personal representative of his estate filed suit in a state court against the man’s employer, the homeowners, and another contractor working on the project. The appeal addressed the claims against that contractor.

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The contractor had a general liability insurance policy that excluded damages related to the injury of its employees. The contractor filed a claim with its insurer, who refused to defend or indemnify based on the exclusion. According to the investigation, the insurer found that the contractor had hired the man’s employer as a subcontractor on the project. Under Florida law, the man and all other employees of the subcontractor were the “statutory employees” of the contractor. The insurer concluded that the exclusion would therefore apply to the man’s injuries.

The case against the contractor continued. The parties ultimately entered a Coblentz agreement in which the contractor agreed to an entry of judgment for more than $4 million in favor of the plaintiff and assigned its claims against the insurer to the plaintiff.

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Florida appeals courts have decided a number of cases regarding compulsory medical examinations (“CMEs”) recently. Florida Rule of Civil Procedure 1.360 allows a party to request the examination of another party “when the condition that is the subject of the requested examination is in controversy.” The requesting party has the burden of showing good cause for the examination at any hearing. Pursuant to the rule, the court order must “specify the time, place, manner, conditions, and scope of the examination.”

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In the recent case of Maddox v. Bullard, the plaintiff sought a writ of certiorari to quash a court order compelling her to submit to a psychological CME. The plaintiff’s case was based upon injuries, including mental anguish, she had received after being bitten by the defendant’s dog.

The defendant requested a compulsory psychological examination, and the court granted the request. The trial court issued an order that specified the time and location of the examination, as well as the name of the psychologist who would conduct it. The court failed, however, to specify the manner, conditions or scope of the CME. The court did not set any boundaries on the examination, leaving the psychologist free to conduct upon the plaintiff any type of psychological testing or analysis he or she chose to do for up to four hours.

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In federal court, defendants often move to dismiss the case for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6). Such motions are filed before the defendant’s answer and are based solely on the complaint. These motions commonly fail, because plaintiffs are not required to provide a lot of detail in the complaint and because, when deciding on the motion, the court accepts the allegations in the complaint as true and views them in a light favorable to the plaintiff when the motion is decided.

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In a recent case, the U.S. District Court for the Middle District of Florida decided a 12(b)(6) motion in a products liability case. In Sorvillo v. Ace Hardware Corporation, the plaintiff alleged that her exposure to paint removers, wood finishes, and similar products she used while working as an antiques refinisher exposed her to benzene. She further alleged that this exposure to benzene resulted in leukemia. She filed suit against a hardware store, manufacturers of the products, and a number of “John Doe” defendants. She alleged theories of negligence, gross negligence and strict liability against the hardware store and one of the manufacturers. The manufacturer moved to dismiss, arguing that the plaintiff failed to state a claim for each of the accounts, that the plaintiff could not recover punitive damages and that the manufacturer and the hardware store could not be held jointly and severally liable.

Pursuant to the Federal Rules of Civil Procedure, the complaint must be a short, plain showing that the party is entitled to relief. The allegations must be plausible and more than speculative. The defendant argued that the plaintiff’s negligence claim must fail because the plaintiff did not allege the number of hours she was exposed to the products of the specifics of her illness or diagnosis. The court noted, however, the plaintiff is not required to plead those facts in her complaint. The trial court found that the complaint was sufficient to proceed on the negligence claim.

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Plaintiffs frequently face compulsory medical examinations (“CMEs”) in personal injury cases. Although it is less common for defendants to be required to undergo CMEs, defendants may be subject to them pursuant to the Florida Rules of Civil Procedure. Rule 1.360 provides that a party may request that another party submit to an examination “when the condition that is the subject of the requested examination is in controversy.” The party requesting the examination must have good cause for the examination and has the burden of showing that good cause at any hearing.

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The Fourth District recently considered the rule as it relates to a defendant in an automobile accident case in Gray v. Richbell. Gray v. Richbell arose from an automobile accident in which the plaintiff’s daughter was killed. While the daughter was passing a tractor-trailer, she was rear-ended by another vehicle and veered into oncoming traffic, colliding with the defendant’s vehicle. According to the plaintiff’s allegations, the defendant negligently failed to avoid the collision. They argued that his age and physical condition contributed to the accident. Although the defendant objected and sought a protective order, the plaintiff’s obtained his medical records and deposed his doctors.

The plaintiffs then requested a neurological CME. The defendant again objected, arguing that his medical condition was not in controversy and the plaintiffs did not have good cause. The plaintiff’s expert offered an opinion that the defendant was suffering dementia, although none of his doctors had diagnosed him. Shortly before trial, the court overruled the defendant’s objection and ordered him to undergo the CME. The defendant then petitioned the Fourth District for certiorari.

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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.

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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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