Florida Personal Injury Lawyer Blog http://www.florida-personal-injury-lawyer-blog.com Published by Personal Injury & Medical Malpractice Attorneys — Law Offices of Schuler, Halvorson, Weisser, Zoeller and Overbeck, P.A. Tue, 29 Jul 2014 03:47:29 +0000 en-US hourly 1 CME of Defendants in Florida Personal Injury Cases http://www.florida-personal-injury-lawyer-blog.com/2014/07/cme_of_defendants_in_florida_p_1.html http://www.florida-personal-injury-lawyer-blog.com/2014/07/cme_of_defendants_in_florida_p_1.html#comments Tue, 29 Jul 2014 03:47:29 +0000 http://florida-personal-injury-lawyer-blog.lawblogger.net/2014/07/cme_of_defendants_in_florida_p_1.html 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.

The Fourth District noted that the defendant’s conduct, not his health, was at issue. The defendant’s physical health, the court said, was immaterial, whether the defendant was negligent or not. The plaintiffs failed to show that the defendant’s medical condition was “in controversy” in the case. Furthermore, the plaintiffs did not meet their burden of showing good cause for the CME. Their accident-reconstruction expert had been able to give his opinion without examining the defendant’s medical records, suggesting that a medical examination was not necessary. The district court therefore granted the defendant’s petition to prevent the CME.

Personal injury plaintiffs are so often subjected to CMEs because their medical condition is placed in controversy by their claim of damages for injuries resulting from the accident. As this case shows, the defendant’s health, however, is not automatically placed in controversy in most cases. The defendant may place his or her health in controversy, for example, by raising a “sudden medical emergency” defense, but it can be difficult for a plaintiff to obtain a CME by alleging that the defendant’s health was a factor in the accident.

If your loved one was killed in a car accident, an aggressive Florida automobile accident attorney can help you get the compensation you deserve. The attorneys at Schuler, Halvorson, Weisser, Zoeller and Overbeck P.A. have years of experience advocating on behalf of Florida personal injury victims. Contact us at (800) 689-8180 to schedule a free initial consultation.

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Survival of Florida Loss of Consortium Claims http://www.florida-personal-injury-lawyer-blog.com/2014/07/survival_of_florida_loss_of_co.html http://www.florida-personal-injury-lawyer-blog.com/2014/07/survival_of_florida_loss_of_co.html#comments Fri, 25 Jul 2014 01:31:44 +0000 http://florida-personal-injury-lawyer-blog.lawblogger.net/2014/07/survival_of_florida_loss_of_co.html 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.

In the present case, the Fifth District noted its own previous holding that loss of consortium is a separate cause of action that that represents a direct injury to the spouse of the injured person. The court also took issue with the Third District’s position that the Legislature did not intend for a loss of consortium claim to survive the death of the injured spouse because the surviving spouse is allowed to recover under the Wrongful Death Act. There are, however, circumstances in which there would be no right to a wrongful death action after the death of the injured person. If the injured person died as the result of something other than the injuries sustained in the accident, the surviving spouse would lose the right to bring a loss of consortium action. The Fifth District did not accept that the Legislature intended for a surviving spouse to lose a vested right to recover.

The Fifth District affirmed the trial court’s dismissal of the personal injury claim and reversed the dismissal of the loss of consortium claim. At this point, there remains a conflict between the Third and Fifth Districts, with the Fifth District being more favorable to plaintiffs. Unless the Florida Supreme Court resolves the conflict, Florida loss of consortium claims may have unpredictable outcomes.

If your spouse was seriously injured in an accident that was someone else’s fault, you need the help of an experienced Florida personal injury attorney. Schedule an appointment with Schuler, Halvorson, Weisser, Zoeller and Overbeck, P.A. by calling (800) 689-8180.

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Defense Expert Testimony of Necessity of Treatment in Florida http://www.florida-personal-injury-lawyer-blog.com/2014/07/defense_expert_testimony_of_ne_1.html http://www.florida-personal-injury-lawyer-blog.com/2014/07/defense_expert_testimony_of_ne_1.html#comments Tue, 22 Jul 2014 02:06:16 +0000 http://florida-personal-injury-lawyer-blog.lawblogger.net/2014/07/defense_expert_testimony_of_ne_1.html 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.

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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.

The evidence, however, showed that the plaintiff had been injured in two accidents in 2001 and experienced back and neck pain over the years. Evidence indicated he had sought treatment between 2001 and 2008. His co-workers said he complained of back pain and took medication.

The jury marked “no” on the question asking whether there was negligence on the part of the defendant that was legal cause of loss, injury or damage to the plaintiff. The plaintiff appealed.

The appeal addressed whether the court erred in admitting testimony from the doctor who performed the compulsory medical examination (“CME”) that the plaintiff’s surgeries were not necessary. The plaintiff argued the admission of the CME doctor’s testimony was in error because a motion in limine purportedly excluded the evidence.

The trial court judge ruled on the plaintiff’s lengthy and apparently boiler plate motion.
The judge’s order granted, denied or delayed the ruling on forty-five categories of evidence by paragraph number. A year and a half later, the case was before a different judge. The second judge indicated she was uncertain of what the order intended, stating she preferred the motion in limine to occur closer to trial. She stated, “So hopefully, you all know and you are going to have to raise your objections because I don’t know what has been done.” According to the opinion, the plaintiff’s attorney agreed and stated he was not involved when the order was entered.

The District Court found that the trial court had changed the ruling to require the parties to raise objections to any matter covered in the motion. The motion before the trial court sought an order prohibiting the CME doctor from testifying that the plaintiff’s surgeries were unreasonable or unnecessary, but no CME had occurred yet. The appellate court stated it would be difficult to conclude that the trial court had definitively ruled to exclude evidence that did not yet exist with no specific context in which that testimony would be given. The appellate court noted that trial courts do not have to rule on such motions so far in advance of trial, and in fact often should not do so. If evidence that has been excluded by an order or the court is inadvertently admitted, there would be an appealable issue and the potential for a new trial. The trial court sought to prevent such a result by modifying the order to require the parties to object to evidence they wanted to exclude. The plaintiff therefore failed to preserve the issue by not objecting at trial.

The appellate court found that it would affirm even if the trial court had not intended to overrule the entire order in limine. The motion had requested the exclusion of testimony of the CME doctor based on Dungan v. Ford, 632 So. 2d 159 (Fla. 1st DCA 1994). The questions asked of the doctor in the present case were intended to establish a causal link between the surgeries and the accident and therefore were distinguishable from the issues in Dungan. In Dugan, the expert had testified that plaintiff’s surgery actually worsened the plaintiff’s injuries. The defendant, however, is liable for the negligent medical treatment received by the plaintiff as a result of the accident. In the instant case, the issue was whether the surgeries were related to the subject accident or from the plaintiff’s previous injuries. If the trial court’s original order was intended to bar this causation evidence, then that order was in error.

If you have been hurt in an automobile accident, an experienced Florida personal injury attorney can help you. Contact Schuler, Halvorson, Weisser, Zoeller and Overbeck, P.A. at (800) 689-8180 to set up an appointment.

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Stacking Florida Uninsured Motorist Coverage http://www.florida-personal-injury-lawyer-blog.com/2014/07/stacking_florida_uninsured_mot_1.html http://www.florida-personal-injury-lawyer-blog.com/2014/07/stacking_florida_uninsured_mot_1.html#comments Fri, 18 Jul 2014 04:17:48 +0000 http://florida-personal-injury-lawyer-blog.lawblogger.net/2014/07/stacking_florida_uninsured_mot_1.html 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.

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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.

The plaintiff argued that he was entitled to stack the uninsured motorist coverage under the automobile policy because he purchased stacked coverage for the motorcycle. The court noted, however, that stacking could only occur when multiple policies provided overlapping coverage. Here, the non-stacking automobile policy did not provide coverage for the motorcycle accident.

The plaintiff further argued that if he was not entitled to stack the coverage, then the contract for stacking coverage under the motorcycle policy was illusory. There are additional limits on non-stacked coverage beyond simply not being able to combine multiple policies.

The court also rejected the plaintiff’s negligence claim. He alleged the insurer was negligent in failing to advise him the extent of his coverage. The court held that the plaintiff’s signature on a form that at the time created a conclusive presumption that he had knowingly accepted the limitations of the policy, pursuant to a Florida statute. The circuit court affirmed the magistrate judge’s order for summary judgment in favor of the insurer because the insured was entitled only to the $10,000 he received under the motorcycle policy.

This case illustrates the importance of understanding your insurance coverage when you purchase it. If you have been injured in an accident with an uninsured driver, a skilled Florida automobile accident attorney can help you deal with your insurance company. Call Schuler, Halvorson, Weisser, Zoeller and Overbeck, P.A. at (800) 689-8180 to set up a free consultation.

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Florida Supreme Court Holds Subsequent Physician’s Testimony Irrelevant in Medical Malpractice http://www.florida-personal-injury-lawyer-blog.com/2014/07/florida_supreme_court_holds_su_1.html http://www.florida-personal-injury-lawyer-blog.com/2014/07/florida_supreme_court_holds_su_1.html#comments Fri, 18 Jul 2014 00:31:46 +0000 http://florida-personal-injury-lawyer-blog.lawblogger.net/2014/07/florida_supreme_court_holds_su_1.html 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.

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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.

Another neurosurgeon determined the man needed a second lumbar surgery, followed by a cervical spine surgery. The man received the lumbar surgery, but never had the cervical spine surgery. He developed quadriplegia and ultimately died while the appeal was pending.

The man and his wife sued the neurologist, the original neurosurgeon, the facility, and a healthcare provider company. All of the defendants except the neurologist settled. The neurologist argued that the neurosurgeon’s negligence caused the man’s injury. Both parties presented expert testimony. The neurologist also introduced depositions taken of the neurosurgeon before he settled. The neurosurgeon had testified that he would not have operated on the man’s neck at the time of the original lumbar surgery even if he had the results of a cervical MRI because the man had not yet experienced problems with his upper extremities.

In the closing statement, defense counsel stated that the plaintiffs’ claim was that the neurosurgeon would have performed neck surgery at the time of the original lumbar surgery but for the neurologist’s failure to obtain an MRI of the man’s neck. Defense counsel said the plaintiffs had not, therefore, established causation because the neurosurgeon had testified that he would not have altered treatment even with the MRI. The jury ultimately returned a defense verdict. The Fourth District held on appeal that the defense counsel did not improperly shift the burden of proof when he said the plaintiffs had not established causation because of the neurosurgeon’s testimony.

The Florida Supreme Court accepted the case based upon a conflict in the district courts. The Court noted that the standard of care for a physician is that of a reasonably prudent physician. Each individual physician must meet this standard. The Court held that a physician cannot avoid liability by presenting the testimony of subsequent treating physician that adequate care by the defendant physician would not have changed the subsequent care. The Court further held that defense counsel’s closing was a misstatement of the law. The trial court committed harmful error in allowing it. Furthermore, the testimony that the defendant relied on was taken while the neurosurgeon was an adverse party to the plaintiffs. Pursuant to Florida law, the jury was not informed of the subsequent settlement by the neurosurgeon. The jury, therefore, was unaware that the neurosurgeon’s testimony may have been influenced by a desire to avoid liability.

The Court held that testimony that a subsequent treating doctor would not have treated the patient differently if the defendant had acted within the applicable standard of care is irrelevant and inadmissible. The plaintiff’s burden as to causation is to establish that adequate care by the defendant in question more likely than note would have avoided the injury.
This case resolves a split among the districts in favor of plaintiffs. As a result, plaintiffs may be able to prove negligence on the part of multiple defendants, not just the final treating physician. If you have been seriously injured or a loved one has been killed by the negligence of a medical professional, an experienced medical malpractice attorney can help you. The lawyers at Schuler, Halvorson, Weisser, Zoeller and Overbeck, P.A. have the knowledge and skills to fight for you. Call (800) 689-8180 to schedule a meeting to discuss your case.


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Florida Independent Medical Exams and Multiple Defendants http://www.florida-personal-injury-lawyer-blog.com/2014/07/florida_independent_medical_ex.html http://www.florida-personal-injury-lawyer-blog.com/2014/07/florida_independent_medical_ex.html#comments Mon, 14 Jul 2014 23:17:03 +0000 http://florida-personal-injury-lawyer-blog.lawblogger.net/2014/07/florida_independent_medical_ex.html 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.

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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.

The Third District’s opinion pointed out that the case law relied on by the plaintiff was distinguishable because it involved a case in which a single defendant requested a second IME after the plaintiff had undergone surgery. In the present case, however, there were multiple defendants with adverse interests. The plaintiff’s own allegations had created this adversity and put each defendant in a position wherein he or she was attempting to prove that the plaintiff’s injuries were not the result of his or her own negligence, but the negligence of one of the other defendants. Limiting the defendants to a single IME would limit their benefit of Rule 1.360(a)(1)(A). The Third District therefore quashed the trial court’s order limiting the defendant’s to one IME per specialty.

In this case, the plaintiff chose to move forward against all of the defendants in a single lawsuit. While it is often difficult for a plaintiff who has been injured in multiple accidents to prove his or her injuries, having multiple doctors examine the plaintiff and testify on behalf of the defendants will make the case even more complex.

If you have been injured in multiple accidents, an experienced Florida automobile accident attorney can evaluate your case and help you determine how to proceed with your case. Call (800) 689-8180 to schedule a meeting with Schuler, Halvorson, Weisser, Zoeller and Overbeck, P.A.

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Florida Extended PIP Coverage http://www.florida-personal-injury-lawyer-blog.com/2014/07/florida_extended_pip_coverage.html http://www.florida-personal-injury-lawyer-blog.com/2014/07/florida_extended_pip_coverage.html#comments Thu, 10 Jul 2014 21:49:59 +0000 http://florida-personal-injury-lawyer-blog.lawblogger.net/?p=415 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.

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“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.

There are specific rules to be used by a court in interpreting an insurance policy. Courts are to look at the plain language of the policy to construe its meaning. They also construe insurance policies strictly against the insurer and liberally in favor of the insured. This means that ambiguities will be read in favor of the insured. Insurance policies are also construed as a whole, with each provision being given its full meaning and effect.

The district court looked at the Declarations page, the limit of liability language in the policy, the Florida PIP Endorsement, and the Extended PIP Endorsement. The court determined that the Extended PIP Endorsement was ambiguous as to the extent to which medical expenses were recoverable. The district court noted that the insurer may have intended to limit its liability for Extended PIP to the $10,000 basic PIP limit, but the insurer failed to state that intention “clearly and unambiguously.” The district court then reversed and remanded to the trial court to enter summary judgment in favor of the plaintiff with a declaration that 100% of her medical expenses were recoverable pursuant to the policy.

Everyone should read and try to understand the coverage provided by insurance policies before an accident occurs. Insurance policies can be very difficult to understand, however. If you have been in an accident and disagree with your insurer about the coverage your insurance provides, you need the assistance of an experienced Florida automobile accident attorney. A knowledgeable attorney can review the policy to determine if the conflict is based on an ambiguity that may allow you to recover. The attorneys at Schuler, Halvorson, Weisser, Zoeller and Overbeck, P.A. are dedicated to advocating for Florida accident victims. Schedule your consultation by calling (800) 689-8180 today.

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Effect of Defendant’s Bankruptcy on Florida Injury Cases http://www.florida-personal-injury-lawyer-blog.com/2014/06/effect_of_defendants_bankruptc_1.html http://www.florida-personal-injury-lawyer-blog.com/2014/06/effect_of_defendants_bankruptc_1.html#comments Tue, 17 Jun 2014 00:27:10 +0000 http://florida-personal-injury-lawyer-blog.lawblogger.net/?p=411 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.

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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.

Eventually, the defendant moved for summary judgment in the negligence action, arguing that she had no personal liability and that the bankruptcy court had only given the plaintiff permission to proceed against the defendant in name only. The defense further argued that the bankruptcy trustee did not intend to pursue a bad faith claim and that a trustee was only allowed to pursue a bad faith claim if it was already pending at the time of discharge. The trial court granted the motion, ordering summary judgment for the plaintiff for the $300,000 policy limits, holding that the plaintiff could not proceed with the negligence action because she failed to file the bad faith action before the discharge in bankruptcy.

The district court, however, found that the plaintiff had the right to have a jury determine her damages. The negligence action and the bad faith claim are separate causes of action with different elements. The defendant’s arguments at the summary judgment hearing were not based on the elements of the negligence, but were instead based on the viability of the potential bad faith action. A bad faith claim does not arise under Florida law, however, until the insured is legally obligated to pay the excess judgment. The order in the bankruptcy allowed the plaintiff to pursue the insurance company through final judgment of the negligence. The district court further stated that the instructions in the order for the plaintiff to file another motion if she wanted to proceed against the insurer for an excess verdict did not support an interpretation that the bankruptcy court intended to limit the plaintiff’s recovery to policy limits.

The district court held that the viability of the bad faith claim was not a basis for summary judgment in the negligence action. Bad faith is not an issue until the plaintiff has liquidated her damages. The district court reversed and remanded for trial, noting that any verdict would be subject to the order of the bankruptcy court as to the defendant’s personal liability.
This decision is a favorable result for accident victims because it prevents insurers from limiting the plaintiff’s recovery by encouraging their insureds to file bankruptcy. While the defendant’s bankruptcy does mean that the plaintiff will have to prove bad faith on the part of the insurer to recover in excess of the policy limits, she will have the opportunity to have her damages decided by a jury and determine the viability of bad faith claim at that time.

If you were injured by someone who may file bankruptcy, a skilled Florida automobile accident attorney can help you get the compensation you deserve. The attorneys at Schuler, Halvorson, Weisser, Zoeller and Overbeck, P.A. understand Florida bad faith claims. Call (800) 689-8180 for your free consultation.

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Stolen Vehicle Defense in Florida Owner Liability Cases http://www.florida-personal-injury-lawyer-blog.com/2014/06/stolen_vehicle_defense_in_flor_1.html http://www.florida-personal-injury-lawyer-blog.com/2014/06/stolen_vehicle_defense_in_flor_1.html#comments Fri, 13 Jun 2014 01:25:57 +0000 http://florida-personal-injury-lawyer-blog.lawblogger.net/?p=407 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.

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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.

The record also included a deposition of a man who claimed to have worked as general manager of the company for two years beginning two months after the accident. The man alleged that the company regularly hired cash workers without requesting identification or driver’s licenses from them. According to the man, the company gave the cash employees access to its vehicles and would try to settle any accident claim involving those driver’s without the insurer’s involvement and falsely claim that the vehicle had been stolen when contacted by a person involved in an accident with one of its vehicles.

The defendant argued that the plaintiff’s affidavit should not be admissible because it related to an offer to compromise a claim. The court stated there was no evidence in the record to indicate whether the claim was disputed at the time of the conversation. Regardless of that conversation, the court determined that the other facts in the record created the possibility of an inference that the driver had the defendant’s knowledge and consent to drive the vehicle. Those facts created a genuine issue of material fact, making summary judgment improper. The district court reversed and remanded.

A vehicle owner defendant should not be able to escape liability by alleging that a vehicle was stolen if the driver had permission to operate the vehicle. There is conflicting information in the record in this case, so it remains to be determined whether the driver had consent to driver the vehicle. The plaintiff will be allowed to proceed in presenting his case.

If you were hurt in an automobile accident and the owner claims the vehicle was stolen, you need the help of a skilled Florida car accident attorney. Schuler, Halvorson, Weisser, Zoeller and Overbeck, P.A. aggressively pursues claims on behalf of Florida accident victims. Please call us at (800) 689-8180 for a free consultation.

Related Blog Posts:

Florida Vehicle Owner Liability During Consignment

Joint Vehicle Owner Is Vicariously Liable

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Arbitration Agreements for Florida Nursing Home Residents http://www.florida-personal-injury-lawyer-blog.com/2014/06/arbitration_agreements_for_flo.html http://www.florida-personal-injury-lawyer-blog.com/2014/06/arbitration_agreements_for_flo.html#comments Tue, 10 Jun 2014 02:19:24 +0000 http://florida-personal-injury-lawyer-blog.lawblogger.net/?p=405 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.

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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.

The Third District used a different analysis for this case than the Fifth District recently used in a similar case. The Fifth District focused on whether the woman who was the subject of the agreement had assented to it through her conduct and whether her husband had authority to sign the agreement on behalf of his wife. The Third District, however, focused on the resident’s status as a third party beneficiary to the contract. In fact, the Third District stated that the fact that a third party beneficiary is bound by an agreement does not depend on the actual or apparent authority of the person who executed it. The relevant question in this case is whether the father accepted the benefits of the contract. Because the father had resided in the facility and received care pursuant to the contract, he was bound by the terms, including the arbitration provision.

The Third District acknowledged the potential public policy concerns involved when such important paperwork is signed under stressful and often hurried circumstances, but noted that it was bound to apply the law. Specifically, parties are free to enter into contracts and are held to have read those contracts. Furthermore, arbitration is favored. The remedy for any policy concerns raised by applying such law under these circumstances would have to be addressed by the legislature. The court therefore held that the father was bound as a third party beneficiary to the agreement signed by his son.

If your loved one has been injured by negligence in a nursing home or other facility, you should seek the assistance of an experienced Florida nursing home litigation attorney immediately, especially if an arbitration agreement was signed. The Florida personal injury attorneys at Schuler, Halvorson, Weisser & Zoeller, P.A. can review the documents and evaluate the case. Call (800) 689-8180 to schedule your free consultation.

Related Blog Posts:

Know What You Sign: Arbitration Agreements

Abuse and Neglect in Assisted Living Facilities

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