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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October 12, 2014

Christensen v. Alaska Sales - Mild Traumatic Brain Injury in Crash Case

Mild Traumatic Brain Injuries account for approximately 75 percent of all traumatic brain injuries in the U.S., according to a report from the Centers for Disease Control and Prevention.
However, the term "mild" is greatly misleading, as it refers to the severity of the initial physical impact that caused the injury. It does not indicate resulting consequences of the injury are not severe. Unfortunately, diagnosis is difficult because while damage to the brain is real, the person who suffered injury might not initially realize anything is wrong. Even when they seek treatment, it's common a typical neuroimaging scan won't show any evidence of injury. There are some newer technologies that can more effectively capture the damage, though those machines aren't in use at all medical centers.

Still, one should always seek medical treatment anytime there has been a head injury resulting from a motor vehicle crash, even if there was no blood or it doesn't seem the impact was hard enough to cause damage. The recent case of Christensen v. Alaska Sales & Service, Inc. reveals how deceiving mild traumatic brain injuries can be.

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October 10, 2014

Fatigued Truckers and Unsafe Trucking in Southwest Florida

While driving on an overpass on S.R. 46 in Brevard County recently, a trucker fell asleep. That's what police suspect was the cause of a crash that occurred around 2:30 a.m. in a highway construction zone.

Incredibly, no one was injured, but several barriers were destroyed, some 75 gallons of diesel fuel littered the roadway and traffic was blocked for about four hours. The driver admitted to investigators with the Florida Highway Patrol that he'd fallen asleep.

Truck driver fatigue in Florida is often the result of poor policy - sometimes even illegal policy - by the trucking company, urging drivers to skirt hours of service laws that limit drive time to ensure truckers get enough sleep so they can safely operate these large vehicles.

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October 8, 2014

One Trucker Destroys Two Families in His Sleep

One sunny summer morning four years ago, a college professor was heading from a family reunion in Ohio back to her home in Maryland with two teenage sons. Her husband, not feeling well, stayed behind. As she approached a construction zone, she braked. However, the massive rig behind her did not, until just seconds before impact. That sent her vehicle careening into another semi, and then spinning into five other vehicles.

Her 16-year-old was seriously injured. Her 12-year-old almost died. He managed to survive, but now suffers permanent cognitive and physical disabilities. The 47-year-old mathematics professor, died within minutes.

The trucker would later be fired and spend time in prison. He initially admitted he'd "dozed off," having slept less than 3.5 hours since his previous shift. When he opened his eyes, he said, the vehicle in front of him was coming to a stop. He couldn't stop, he said. He couldn't veer.

"I looked for an out," he said, "But there was nowhere to go."

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October 8, 2014

GEICO v. Paton - Florida Bad Faith Insurance Verdict Stands

When an auto insurance company fails to provide fair, timely coverage to policy holders or others entitled to it, this is called "acting in bad faith." It means the insurer did not act reasonably in the discharge of the fiduciary duty it owed, and when proven, can result in compensation that exceeds even the original limits of the policy.

The hope is that by making the repercussions so severe for insurers who act in bad faith, there will be compelling reasons to treat insureds fairly. Of course, these are insurance companies we're talking about, and the mantra at these institutions is almost always: Deny, Deny, Deny.

In the recent case of GEICO v. Paton, a woman had to fight her insurance company twice: First in a bid for adequate underinsured motorist coverage and then in a bad faith insurance action. She won in both cases, but the insurer still sought to avoid payment, by appealing on the grounds that the trial court in the bad faith action improperly weighed the excess verdict amount reached at the uninsured motorist trial.

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October 6, 2014

Hotel Liability at Issue in Parker v. Holiday Hospitality

The tourism industry is vital to the economy in Lee County, with the Lee County Visitor and Convention Bureau reporting 88 percent of visitors stayed at some sort of paid lodging. Of those, 77 percent stayed at a hotel, motel or resort, 12 percent at a vacation home and 6 percent at a bed & breakfast. On average visitors stayed 4 nights.

Businesses or even private property owners that provide lodging services owe a duty to guests to provide a safe environment. That means keeping rooms and common areas neat and free of foreseeable hazards, providing adequate lighting and security and ensuring all items provided for guest use are reasonably safe.

Even so, just because a person is injured while at a hotel doesn't mean he or she is entitled to compensation. Premises liability laws are complex, and there are a number of factors that must be considered. One of those is the proper and timely identification of all defendants.

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October 1, 2014

Florida Nightclub Shootings May Result in Negligent Security Claim

A strip mall nightclub in Miami coined "The Spot" was the site of a bloody scene recently, when 15 people - ranging in age from 11 to 25 - suffered gun shot wounds in the early hours of a Sunday morning. At least one of those victims was in critical condition, while the others are expected to recover.

Although authorities are continuing to investigate, initial reports are that two groups were shooting at one another. The recently-opened business bills itself as a "lounge, restaurant and bar." It did have a liquor license, and apparently catered to teen patrons, though the media reports it's unclear whether alcohol was being served to youth.

In a scenario like this, injured minors and parents may have grounds for a civil suit against the business and/or property owners. While courts generally do not impose liability on third parties for violent criminal acts, there are exceptions made when the risk was foreseeable and the business owner owed a duty to protect invitees.

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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.
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.
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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