September 30, 2014

Hughs v. Kia Motors Corp. - Lack of Fuel-Switch Not Cause of Fatal Brain Injury in Crash

The U.S. Court of Appeals has upheld ruling from a trial court granting summary judgment in favor of an auto manufacturer facing allegations of liability for failure to install a fuel shut-off switch on its cars.
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In passenger vehicles, a fuel shut-off switch acts to cut power to the engine as soon as impact is detected. The purpose is to prevent the vehicle from catching fire as a result of a fuel tank rupture. In Hughs v. Kia Motors Corp., plaintiffs alleged lack of this device kept the vehicle in motion far longer than what it would have otherwise been the case, resulting in injuries that were ultimately fatal to the driver.

Sarasota car accident lawyers note specific claims included strict liability for inherently dangerous design and negligence for the lack of airbag deployment, lack of fuel shut-off device, failure to warn of the inherently dangerous design and failure to remedy it.

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September 29, 2014

Ainsworth v. Chandler - Premise Liability Claim Success Hinges on Plaintiff Status

One of the first things our Fort Myers premises liability lawyers will do in reviewing a trip-and-fall case is to determine the legal status of the plaintiff at the time of the incident.
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That is, was the plaintiff a business invitee? A licensee? Or a trespasser? For each classification, the level of duty owed by a defendant is going to vary, which means plaintiff legal status can guide the entire course of a case.

The highest degree of duty owed is to that of a business invitee, who is on the property for the financial benefit of the property owner. A prime example would be a customer at the grocery store. A licensee, meanwhile, is someone who is on the property for some purpose other than commercial. An example would be a social guest. An finally, a trespasser would be someone who did not have permission to be on the property. Trespassers can sue property owners for injuries, but usually only if the owner knew trespassers routinely came on site and failed to address or warn of a hazard that wasn't obvious. The one exception is children, and the most common example in Florida would be a child who enters an unprotected swimming pool area.

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September 28, 2014

Gallon v. Geico - Could Insurance Agent's Falsehood Double Payment?

Recently, Florida's Fourth District Court of Appeal was tasked with considering whether an insurance agent's misstatement characterizing a customer's coverage could ultimately result in doubling payout for her injured son.

Answer? It's possible.
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In Gallon v. GEICO, the primary issue in dispute was plaintiff's claim of negligent misrepresentation. Plaintiff asserted his mother relied on purportedly incorrect information given to her by the insurance agent when purchasing her policy. Relying on this information, she agreed to pay a higher premium. Had she been told the truth, he contended, she never would have paid a higher amount. Or perhaps she would have shopped around for a different plan. The bottom line, he says, is that his mother reasonably relied on this information, and when he was injured, it proved false.

Our Fort Myers car accident lawyers note the 4th DCA didn't determine he was necessarily entitled to damages, but rather that trial court's summary judgment was improper. There was enough substantial evidence to take the claim before a jury, which will be the next phase in the process.

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September 27, 2014

Boozer v. Stalley - Florida Bad Faith Insurance Claim Hits Setback

Florida's Fifth District Court of Appeal has ruled that attorney-client privileges between an at-fault driver and an insurance defense lawyer are still protected, even in third-party bad faith insurance claims.
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Car accident injury lawyers in Fort Myers note while this appears on the surface to depart from the 2005 Florida Supreme Court decision in Allstate Indemnity Co. v. Ruiz, the primary difference in Boozer v. Stalley is the distinction between attorney-client privilege and the "work product" produced in a personal injury case that later leads to a bad faith claim.

The 5th DCA had previously ruled that in bad faith lawsuits against insurance companies that fail to settle within the policy limits, all materials in the company's claim file up to the date of judgment in the underlying lawsuit are obtainable and should be produced when sought in discovery. Additional documents or memos in the file after the judgment date can be obtained when the plaintiff shows good cause.

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September 26, 2014

Courts and Technology Aim to Put the Brakes on Texting and Driving

This year, Florida became one of the last states in the nation to implement a ban on texting while driving. The new measure was welcome, but it's still rather weak.
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For one thing, the action is considered only a secondary offense, meaning an officer must have some other reason to stop an offender. Secondly, a first-time offense garners a maximum $30 fine ($60 for a second offense within five years). Finally, as the Tampa Bay Times reported recently, law enforcement across the state is on track to issue less than 1,800 citations in the year since the law passed.

There is, however, some heartening news on two fronts: The courts and technology. Our Lehigh Acres car accident attorneys note in late August, a Florida jury awarded $4.3 million to a passenger injured in a texting-and-driving case. Two weeks later, it was revealed the combined efforts of a chemical engineer, an auto insurance company and a major phone service provider might help disable the texting feature for drivers.

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September 25, 2014

GEICO v. Rodriguez - Court Orders Insurer to Pay Sanctions for Driver's False Statements

The case of GEICO v. Rodriguez, recently decided by Florida's Third District Court of Appeal, began with an elderly driver with poor vision. He should never have been on the road. His doctors declared him legally blind, and advised him not to drive.
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The 83-year-old did not listen, and within one month of receiving a renewal of his insurance policy, he struck two pedestrians with his vehicle, causing serious injury.

Our Cape Coral pedestrian accident lawyers know that by these facts alone, the injured parties were entitled to receive compensation from the at-fault driver's insurer. But although the insurer tendered the full policy amount of $20,000, this did not cover relevant medical bills, and the pedestrians sued the driver in state court for negligence. This resulted in a deposition during which the driver gave sworn testimony that he had no physical impairments that would prevent him from being a safe driver, and his vision was good.

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September 23, 2014

Fatal Crashes and Marijuana Legalization: Florida Politifact Weighs In

Florida voters are slated to decide in November whether to approve an initiative that would legalize marijuana for medicinal purposes for residents of the Sunshine State.
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Both sides have been vigorously campaigning on the issue, with the opposition recently citing a statistic indicating passage of this measure would mean more impaired driving deaths on our roadways. A coalition known as Don't Let Florida Go To Pot recently published a statement on its website indicating that 1 out of every 4 traffic deaths involves marijuana.

Our Fort Myers car accident injury lawyers know regardless of whether Amendment 2 passes, driving impaired will always be against the law. Those who are injured or have loved ones killed by a person who flagrantly ignores these risks are entitled to compensation, and we will fight aggressively in the pursuit of justice.

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September 19, 2014

Johnston-Forbes v. Matsunaga - Standards for Expert Witnesses in Crash Cases

Although expert witnesses are not required in Naples car accident lawsuits as they are in medical malpractice cases, use of an expert witness can sometimes make or break a case.
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However, in order to be considered an "expert," a person must meet certain criteria for the purported field of study. Last year, Florida adopted a more stringent standard for expert witnesses. Previously, the state adhered to the Frye standard, which was established by the 1923 case of Frye v. U.S. This principle held that scientific theory, principle or procedure from which the expert witness testimony was derived had to be sufficiently grounded or generally accepted in the particular field of study.

The problem was that while general acceptance of peers in the scientific community was important, the principle lacked consideration for the individual's qualifications as an expert. This resulted in the introduction and passage of House Bill 7015, which required Florida to join 40 other states in adopting the Daubert standard for admissibility of expert witness testimony. This more stringent standard weighs whether the theory or technique in question can be tested, whether it has been subjected to peer review, whether there is a known or potential error rate, the existence of standards to control its operation, and whether there is widespread acceptance within the relevant scientific community.

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September 19, 2014

Cahours v. Florida - Actual Knowledge in Hit-and-Run

A second Florida appellate court has certified a question to the state supreme court regarding whether a defendant must have actual knowledge of a crash in order to be criminally charged with leaving the scene of an accident involving death.
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Florida's First District Court of Appeal, in Cahours v. Florida, reversed defendant's criminal conviction for hit-and-run on grounds that standard jury instructions on this matter are unclear. The court also urged the state legislature to consider stepping in to clarify this matter for the judicial system.

Our Cape Coral personal injury lawyers recognize that while this is a criminal case, not a civil one, it could ultimately impact future civil cases for the simple fact that criminal convictions can help bolster the position of the plaintiff in a civil case arising from the same basic facts.

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September 16, 2014

Auto Insurance Coverage for Off-the-Clock Worker

The Eleventh Circuit Court of Appeals, the same circuit that oversees federal appeals in Florida, recently grappled with the question of whether homicide by firearm was in fact an "accident" covered under an employer auto insurance policy.
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On the surface, it sounds absurd. However, it was a question with which the lower court struggled even after careful consideration. Additionally, there are wider implications in the decision rendered in Travelers Property Casualty Company of America vs. Moore et al. for off-the-clock workers involved in incidents while driving company vehicles.

In Florida, a person injured by an on-the-clock employee driving a company vehicle may seek compensation not only from the individual driver, but also the employer on the basis of the employer's liability. (An injured person might also seek to hold a company directly liable for negligent hiring, training or supervision, but that is a separate discussion.) Vicarious liability is holding the owner/insurer of a vehicle responsible just by virtue of the fact the vehicle was involved - so long as the driver had permission to operate the vehicle.

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September 15, 2014

Hillstone v. P.F. Chang's - Slip-and-Fall Case Delves Into Commercial Lease Law

One of the reasons it's so important to hire a Fort Myers injury lawyer with experience is because quite often, elements of the case will meander into other facets of law, such as employment law or business law. waiting.jpg

The outcome of the injury case could hinge on the plaintiff lawyer's ability to argue some element pertaining to these specific areas of law. A common example would be a person injured by a negligent truck driver. In order to seek compensation from the trucker's employer and insurer, one might first have to establish the trucker actually worked for the firm, and was not simply an independent contractor. Doing so requires more than base-level knowledge of state and federal labor law.

Another example of how other areas of law can factor into an injury lawsuit was illustrated recently in the case of Hillstone Restaurant Group v. P.F. Chang's China Bistro, Inc., weighed recently by Florida's Third District Court of Appeal. Although the injured party was not required to argue which entity should indemnify the other (this was a dispute between two companies), it's relevant to future personal injury plaintiffs.

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September 12, 2014

Williams v. GEICO - Auto Insurer Step-Down Provision Struck Down

Another state supreme court has struck down the so-called "family step-down provision" so prevalent in auto insurance contracts across the country. Unfortunately, that state supreme court that took this step wasn't ours, but South Carolina's.
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Still, the recent ruling in Williams v. GEICO sets an important precedent that our Lehigh Acres car accident attorneys hope our lawmakers and court justices will soon recognize. After all, the decision in the Williams case was modeled after a similar ruling by the Kentucky Supreme Court.

Most people who have family step-down provisions in their policy may not even be aware of it, as it is not usually detailed in the "declarations" page of the policy, but rather buried in the "exclusions" portion. Many never hear of it until they or a loved one is seriously hurt in a crash and tries to collect the full liability limit for the policy they purchased, only to be told the exclusion is applicable and they are entitled only to the minimum statutory coverage.

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