November 24, 2014

Highway Guardrail Dangers Exposed at Trial

A Texas jury has found the manufacturer of highway guardrails guilty of secretly altering system designs in order to save money, at the risk of putting drivers and passengers at grave risk of injury and death. miamiskyline.jpg

In a lawsuit brought under the False Claims Act by a competitor, it was found the company made changes to the end pieces of steel on the rails made from 2002 to 2005 without notifying the Federal Highway Administration (FHWA) as mandated. The move saved the company about $2 per rail, but also resulted in making the guardrails potentially dangerous. Rather than acting as a shock absorber, the guardrails effectively became spears, slicing through the length of vehicles, killing and maiming those inside.

The jury ordered the company, Trinity Industries, to pay $175 million for defrauding the government. Under federal statutes, that amount will be tripled to $525 million, to be split between the government and the whistleblower.

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November 22, 2014

Moody v. Dorsett - 2nd DCA Reverses Order Denying Auto Insurance Set-Off

Car accident victims in Florida are entitled to collect compensation for damages they incur for medical bills, lost wages and pain and suffering.

But whatever they collect from their own insurer in accordance with the state's no-fault personal injury protection (PIP) laws can act as a "set-off" for the at-fault driver if he or she is later ordered to pay damages. The idea is to prevent double-recovery for the same injury.

So for example, if one has $10,000 in personal injury protection from his own insurer and is later found to be entitled to $15,000 in compensation from the at-fault driver/insurer, defendant can seek a set-off of the original payment so that defendant would only be required to pay $5,000.

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November 20, 2014

Mattox v. Life Care Centers of America - Nursing Home Fall Lawsuit

Older adults are not only more prone to suffer falls, they are more likely to incur serious and lasting physical harm as a result of a fall.

According to the U.S. Centers for Disease Control and Prevention, a typical nursing home with 100 beds reports 100 to 200 falls a year. However, it's important to note many falls are never reported. Most patients fall more than once, and about 35 percent of those who suffer falls in nursing homes can't walk. An estimated 1,800 nursing home residents die as a result of falls annually.

Most of these incidents are largely preventable. Nursing home staffers know or should know who is at risk of falling, and take appropriate preventative measures. That is exactly what plaintiffs in Mattox v. Life Care Centers of America, Inc. alleged did not happen. Plaintiffs contend their 88-year-old mother suffered a fall as a result of negligent care. Her health rapidly deteriorated soon after the fall, and she died the following day in the hospital.

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November 10, 2014

Defective Air Bag Recall On Track to Be Largest Ever

As an Orange County woman lay dying in the intensive care unit of an Orlando hospital last month following a horrible car accident, detectives were perplexed by the stab wounds on her neck. Multiple wounds that were later cited as contributing to her death.

But it wasn't until a week before she died that detectives got a break: In her mailbox. There, they discovered a letter form the dealership where she purchased her vehicle. The letter encouraged her to have the vehicle repaired immediately, as faulty airbags could result in the airbag exploding.

Her death was the third of at least four that so far have been tied to the Takata airbag recall that has the potential to affect 14 million vehicles made by 11 auto manufacturers worldwide. Instead of protecting drivers in the event of a crash, the airbags apparently explode in a burst of shrapnel that is sent flying into the neck, head and chest areas. So far, federal safety regulators have issued an unusually stern warning to the owners of some five million vehicles, urging them to have their airbags repaired "immediately." Recall of another three million is expected to be announced in short order.

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November 8, 2014

Green v. Johnson - Multiple Insurance Agencies in Motorcycle Death Claim

Unless a crash involves a single vehicle and a single driver, it's very likely those involved are going to be dealing with multiple insurance companies, to varying degrees. None are going to be especially eager to offer a fair settlement.

Negotiating with just one insurance company can be a challenge. With multiple insurance policies and agencies, it's important to have a legal advocate who can serve as your assertive voice in the fight to obtain the compensation you deserve.

In the recent case of Green v. Johnson, the claim stemmed from a motorcycle accident in which a young man and father of two was killed. The children's mother (the decedent's girlfriend) sought compensation from multiple insurers on behalf of the children. It was not an easy battle. However, the Louisiana Supreme Court recently ruled in her favor with regard to one of those insurance companies, which had denied uninsured motorist coverage on the grounds decedent was not an insured.

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November 6, 2014

Antico v. Sindt Trucking, Inc. - Cell Phone Data Access After Truck Crash

In an increasing number of crash-related injury lawsuits, both plaintiffs and defendants are seeking cell phone records from the other side. The interest is not so much with the content (although in some situations, that is relevant). Rather, the greater relevance is the determination of whether an individual was using his or her smartphone at the time of the crash.

If this is true, at the very least it could establish comparative fault by a plaintiff, which could result in loss of some portion of damages, even if litigation ultimately results in his or her favor. However, it could go far in proving total fault of plaintiff, which could result in the dismissal of the case. On the other hand, if the records sought belong to defendant, evidence of cell phone distraction behind the wheel could be a powerful tool for a plaintiff attorney seeking damages for the crash.

In the recent case of Antico v. Sindt Trucking, Inc., plaintiff is the widower/personal representative of the estate of a woman killed in a trucking crash in Northern Florida. Defendants, however, contend decedent was at fault - at least to some degree - for the crash because she was distracted by her iPhone.

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November 4, 2014

Pedestrian Injury Gives Rise to Premises Liability Lawsuit

A pedestrian who was injured on a public street by a wrong-way cyclist on a delivery later filed a premises liability lawsuit against, among others, the construction company and the owner of a private building under renovation.
The crux of the argument in Bufkin v. Felipe's Louisiana before the Louisiana Supreme Court hinged on whether the vision-obstructing trash bins placed in public parking spaces constituted a hazard that was open and obvious, therefore negating the company's duty to warn the public of possible danger.

Ultimately, the court ruled in favor of the construction firm, finding the large metal trash containers were not inherently dangerous and further were open and obvious in a way that required people encountering them to take reasonable precautionary measures to avoid injury when crossing the street.

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November 2, 2014

Schill v. Cincinnati Ins. Co. - Parent Umbrella Auto Insurance Policies

Because teen and young adult drivers are known to be among the most accident-prone, it's imperative for parents to educate themselves on their rights, responsibilities and liabilities with regard to auto insurance.

One of the ways parents can do this is by purchasing umbrella insurance. This provides additional coverage so you aren't personally liable for a judgment in the event your teen driver is involved in a crash and seriously injures or kills someone else.

Of course, as with any insurance company, it's likely you (and the plaintiff) may have to fight in order to get coverage paid. In those situations, the exact language of the policy is going to be very important, as the recent case of Schill v. Cincinnati Ins. Co. illustrates.

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November 1, 2014

Branch v. Selmo - Car Accidents Involving International Drivers

Florida is a destination not only for those within the U.S., but also for people and businesses across the globe. Drivers who are not familiar with the area, let alone standard driving practices, may be more prone to a crash.
This is not just a phenomenon in the U.S. For example, in Britain, the Motor Insurers Bureau reported that for the past five years, the number of crashes involving foreign drivers has climbed steadily. Much of that can be attributed to new migration from other European countries, but some did involve an uptick in tourism. And in New Zealand, news outlets reported earlier this year nearly 600 crashes in 2013 involved foreign visitors, who were cited at-fault in two-thirds of those cases. In many cases, drivers were cited for "failure to adjust to local conditions."

Officials say tourists may be especially vulnerable to a crash because they are not familiar with the road design and layout, the signage is not familiar and they may be distracted by scenery.

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October 30, 2014

Boler v. Security Health Care - Nursing Home Arbitration Contract Not Upheld

Many nursing homes, upon admission, put before patients and patient representatives a huge stack of papers to sign. Buried among those is likely an "arbitration agreement," or a promise that if a dispute arises as to the level of care, it will be resolved by an arbitrator, rather than resolved in court.

What many people don't realize is that by signing these documents, they may be signing away the right to have their case heard before a judge or jury. Arbitration can be costly, drawn out, and even if the case is decided in a plaintiff's favor, isn't likely to result in compensation figures as high as what a jury might have awarded. There is often little to no benefit to a nursing home resident or relative to sign these documents.

While arbitration agreements are considered legally-binding contracts, courts in many instances have found them to be void for being unconscionable. That is, they are generally written so as to tip the scales heavily in favor of the facility, and many people don't even realize they are signing such a serious legal document, as it's often not specially flagged within that paperwork. There are many cases too in which relatives sign on behalf of the patient when they lack the proper legal authority to do so.

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October 16, 2014

Safeco v. Beare - Bad Faith Insurance Claim Allowed Before Liability Determined

For a long time, plaintiffs in bad faith insurance cases reserved the claim until after liability had been determined. Then, they would proceed with filing the bad faith claim.
It's still true that bad faith claims can't be decided before liability has been established. However, some lawyers in cases where insurers have dragged their feet on paying legitimate claims have begun including a count for bad faith in the original liability claim.

Recently, Florida's Fourth District Court of Appeal established procedure for how to handle this, and it involves abatement of the bad faith claim (or setting it aside) rather than dismissing it. That means the matter can't be determined prior to the liability claim, but plaintiffs don't have to refile. That saves time and legal expense, and could make for a swifter receipt of compensation. If an insurer is found to have engaged in bad faith, it can be ordered to pay far in excess of the original policy limit.

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October 14, 2014

Inman v. Whiteville - Liability in a "No-Contact" Crash

Rare is the instance where any auto insurance company is going to offer an injured party a fair settlement straight out of the gate. Obtaining rightful compensation for injuries - including medical bills, lost wages and vehicle damage - almost always requires the intervention of an experienced accident attorney. crashedcar1.jpg

Those involved in "no contact" accidents are going to face an even steeper uphill battle for coverage. These would be instances where the driver takes evasive action to avoid a collision with another vehicle, but ends up crashing into some other object. He or she may still suffer injury or property damage, though it's likely not as severe as if there had been impact with the other vehicle. However, because there was no contact, proving negligence on the part of the other driver can be difficult.

This was the case for a plaintiff in Inman v. Whiteville, where the North Carolina Court of Appeals, was asked to weigh liability in a "no contact" crash, where plaintiff asserted she was run off the road by another driver.

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