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Florida law allows both first-party and third-party bad faith claims. Insurance companies have a duty to handle and adjust claims in good faith. When they fail to do so, the claimant may have a bad faith claim against them.$ Car- Ching $

Since the basis of a bad faith claim is the actions of the insurer and not the underlying liability or first-party claim, the elements of a bad faith claim and the procedures involved in litigating it are different from those of the underlying tort. The actions of the insurance company, and possibly the attorney who represented the insured on behalf of the insurance company, are relevant in the bad faith case. Obtaining the claim file and the litigation file from the underlying case can be very helpful in proving the bad faith claim. The files of an attorney, however, are often protected by the work-product doctrine and attorney-client privilege. A significant issue in a bad faith case is what documents from the underlying claim are discoverable.

The Fifth District addressed this issue in the recent case of Boozer v. Stalley. In this case, the attorney and his client sought to quash a trial court order allowing the plaintiff in a bad faith action to depose and obtain documents from the attorney.

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The Third District recently decided an insurer’s obligation to pay for sanctions resulting from a misrepresentation in testimony by the insured. This case arose after a vehicle struck two pedestrians. In addition to providing liability coverage, the driver’s insurance covered court costs. The pedestrians filed suit against the 83-year-old driver. In deposition, the defendant denied having physical impairments that would affect his vision or prevent him from being a safe driver. His medical records, however, showed that he was legally blind and had been told by his doctors not to drive.

347461_5300Alleging the defendant committed a fraud on the court, the plaintiffs moved for sanctions, costs, and attorney fees, and the striking of the defendant’s pleadings. The court struck the pleadings and allowed the plaintiffs to add a punitive damages claim.

The defendant died, and the personal representative of his estate was substituted into the lawsuit. Before the sanctions hearing, the insurer sent a reservation of rights letter, stating there may not be coverage for the claim, sanctions, or fees or costs awarded in connection with sanctions. The letter referenced the “Fraud and Misrepresentation” section of the policy.

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Florida law encourages insurers to act in good faith by allowing injury victims to bring “bad faith” claims. In a successful bad faith claim, the injury victim may be able to recover an amount greater than the policy limits. Insurers who do not handle claims in good faith, therefore, put themselves at risk of paying a much larger amo916495_50801631unt. Sadly, insurers sometimes take that risk.

In Geico General Insurance Company v. Patton, a passenger was injured in an automobile accident resulting from the negligence of an underinsured (“UIM”) driver. She received the driver’s $10,000 policy limits. Her attorney demanded the $100,000 policy limits, but the insurer offered only $1,000. The insurer subsequently raised the offer to $5000, but lowered it back to $1,000 when the injured woman refused to settle. Against her attorney’s advice, she lowered her demand to $22,500, but the insurer did not even respond.

The injured woman filed a bad faith claim against the insurer. The jury found in favor of the plaintiff, finding her total damages to be $469,247. The insurer did not move for a new trial. The court entered judgment in favor of the plaintiff for the $100,000 policy limits. The insurer paid that judgment.

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As this blog has previously discussed, medical malpractice cases have certain procedural requirements, including pre-suit requirements, that are not required in other negligence cases. Plaintiffs must therefore determine if the case lies in medical malpractice or general negligence well before suit is filed.

A case recently decided by the Fourth District involved an argument by the plaintiff that the case was one of general, not medical, negligence, despite the act in question occurring in a hospital. In this case, the personal representative of the decedent’s estate filed a wrongful death lawsuit against a hospital. The complaint alleged that the decedent had been dropped onto an x-ray table, resulting in a spinal fracture. Due to her age and medical condition, there were limited appropriate options for treating the decedent’s broken back. The complaint alleged that the broken back ultimately caused her death.58761_8380 (800x623)

The defendant moved to dismiss on the grounds that the plaintiff had failed to comply with the pre-suit requirements for medical malpractice cases. The plaintiff argued that the pre-suit requirements did not apply because the complaint stated a cause of action in general negligence, not medical malpractice. The trial court granted the motion to dismiss, and the plaintiff appealed.

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This blog has previously discussed some of the complexities of Florida medical malpractice law. These complexities are compounded when the healthcare provider is a government entity. Pursuant to 768.28(6)(a), Florida Statutes, a plaintiff must present her claim in writing to the state or a state agency or subdivision within three years after the claim accrues. A recent Third District case addressed what happens when a plaintiff in a medical malpractice case against a government entity does not specifically plead compliance with this notice requirement.

stethoscope notepadExposito v. Public Health Trust of Miami-Date County involved a girl who was born prematurely and suffered a number of health conditions, including seizures, spastic quadriplegia, and encephalopathy. Her mother pursued the claims against the Public Health Trust of Miami-Dade County (“Public Trust”), the University of Miami School of Medicine (“University”), Jackson Memorial Hospital, and individual doctors. Her attorneys sent written notice of the claim to the Florida Department of Financial Services, the Public Trust, the University, Jackson Memorial Hospital’s CEO, and the individual doctors. The notices were sent by certified mail, return receipt requested, on July 6, 2005. The date of the incident was listed as July 11, 2005, the date of the girl’s birth.

The original complaint was filed on July 10, 2010. The complaint contained language indicating that the plaintiff had complied with “[a]ll statutorily required conditions precedent.” Neither the original complaint nor the first amended made specific reference to compliance with the notice requirements contained in 768.28(6), Florida Statutes.

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Generally, the parties to a lawsuit bear their own expenses, but there are exceptions. In Florida civil cases, a plaintiff may be liable for the defendant’s fees after rejecting an “offer of judgment” if there is a judgment of no liability, or if the final judgment is 75% or less than the offer of judgment. An offer of judgment is simply a settlement offer that is made after the suit is filed and that conforms to certain statutory requirements. Pursuant to section 45.061, Florida Statutes, the plaintiff has 30 days to accept the defendant’s offer of judgment. The specific requirements for offers of judgment are set out in Florida Rule of Civil Procedure 1.442. Pursuant to the rule, proposals for offers of judgment to plaintiffs may not be served earlier than 90 days after the action commences.

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The Third District recently addressed what happens when a defendant makes an offer prior to 90 days after the action commences. Design Home Remodeling Corp. v. Santana arose from a slip and fall on premises owned by a condominium association. The injured man and his wife filed suit against the association, alleging negligent maintenance of the premises. The association’s answer indicated that another company was responsible for any negligent maintenance. The plaintiffs amended the complaint to add that company as a defendant.

Sixty days after the amended complaint was filed, the defendant company served the plaintiffs with proposals for settlement that expressly referenced 768.79, Florida Statutes and Rule 1.442. The plaintiffs did not respond.

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Unfortunately, in a very serious accident, the available liability insurance may be insufficient to fully compensate all of the victims for their injuries. In a recent unpublished per curiam decision, the 11th Circuit addressed the application of an exclusion in an uninsured motorist policy. In Drew v. Safeco Insurance Company of Illinois, the injured person was a passenger in a vehicle driven by his friend when it was involved in an accident with another vehicle. The vehicle was owned by the driver’s aunt. The driver of the other vehicle was killed, and her passenger was seriously injured.

headlamp-2940_1280 (800x533)The vehicle in which the injured man was driving was insured by the owner, and the driver was a rated driver on the policy. The liability limits of that policy were exhausted by claims paid to the family of the other driver. The injured man therefore sought recovery under the uninsured motorist (UM) provision of the policy. The insurer denied it on the basis that the vehicle could not be insured under the liability portion of the policy and uninsured under the terms of that policy. The injured man filed suit against the driver, the owner, and others. The owner then filed an action for a declaratory judgment, naming the insurer and the injured person as defendants. The injured person was ultimately realigned as a plaintiff. The trial court granted summary judgment in favor of the insurer, finding that the injured man was not covered by the UM provision.

On appeal, the 11th Circuit noted that uninsured motorist coverage applies when an insured person, which includes permissive passengers, is entitled to recover from the driver or owner of an uninsured vehicle. Generally, a vehicle cannot be both insured and uninsured under the same policy. However, there is an exception to this rule when, in an accident involving a vehicle owned or available for the regular use of the named insured person or a relative, “liability coverage is excluded for any person other than you or any family member for damages sustained in the accident by you or any family member,” as stated in the policy in question.

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Florida slip and fall law changed when the state enacted section 768.0755, Florida Statutes, effective July 1, 2010. When a plaintiff’s injury arises from a slip and fall on a transitory foreign substance, the plaintiff must prove that the defendant had either actual or constructive knowledge of the dangerous condition and should have taken action to remedy the condition. The plaintiff may show constructive knowledge by proving that the dangerous condition existed for so long that it should have been known through the exercise of ordinary care or that the condition was foreseeable because it occurred regularly.

800090_42064408A recent First District case addressed the issue of constructive notice. In Walker v. Winn-Dixie Stores, Inc., the plaintiff was injured when she slipped and fell at a grocery store. When the plaintiff and her companion completed their shopping, the two returned to their vehicle. The plaintiff described the weather as “steamy” at that time but said it did not appear to have rained. They were outside for five or ten minutes, and then the plaintiff returned the electric cart used by her companion to the store. As she did so, it began “misting rain.” She testified that less than a minute passed from the time she began riding the cart to the time she arrived at the front entrance. After she parked the cart and began walking back toward the door, she slipped and fell. She testified that she fell within a foot of the cart.

The plaintiff testified that she did not see water on the floor before she fell, and she could not say whether she saw any after she fell. She said the condition that caused her to fall was “unnoticeable” and “just drops of water.”

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The National Highway Traffic Safety Administration’s (“NHTSA”) annual “Drive Sober or Get Pulled Over Campaign” ran from August 15 through Labor Day. According to information from the NHTSA, an average of one person every 51 minutes loses his or her life as the result of an alcohol-impaired automobile crash. In an effort to make the roadways safer during the last days of summer and over the Labor Day holiday, the NHTSA teams with law enforcement each year to crack down on impaired driving. The Florida Highway Patrol, along with a number of local police departments, participates.152511_2229 (800x601)

According to a press release from Florida Highway Safety and Motor Vehicles, all uniformed Florida Highway Patrol personnel will patrol major roadways during the Labor Day holiday. Even those employees ordinarily assigned to administrative duties will be on patrol. Auxiliary troopers will also be involved. The intent is not only to deter impaired driving and other traffic violations, but also to provide assistance to travelers who break down or need help.

Labor Day weekend can be a particularly dangerous time to be on the roads. According to the NHTSA, nearly four out of 10 of the fatal crashes that occurred over the holiday weekend in 2012 involved a drunk driver, and there was an average of one fatality every 34 minutes as the result of an alcohol-related crash during the holiday weekend.

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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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