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.
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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 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.
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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

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.
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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.
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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.
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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.
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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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