personal injury lawyer

Settlement Release Not Necessarily the End of Injury Lawsuit

January 21, 2018 | Associates and Bruce L. Scheiner

It’s generally advisable for car accident victims to avoid accepting an early settlement offer from the at-fault plaintiff’s insurer, particularly before it is reviewed by an experienced injury attorney. The reason is by so doing, you may be required to sign a release through which you agree not to pursue any further claim of damages – no matter how much greater your damages are compared to what you agreed to accept initially.

Recently, the South Dakota Supreme Court reversed a summary judgment in favor of a defendant who sought enforcement of a release of liability from all claims with a settlement of $3,000. Problem was, plaintiff’s actual medical bills along amounted to $400,000. Although the trial court granted summary judgment on the basis of that early settlement release form, the state supreme court found there were genuine issues of material fact as to whether consent was obtained with undue influence and also whether the release actually precluded plaintiff’s claim. Plaintiff hasn’t exactly won the case, but she will get a shot at taking the matter to trial.

According to court records, the 55-year-old plaintiff was a passenger in her boyfriend’s vehicle when the vehicle was rear-ended by defendant motorist. Law enforcement cited plaintiff’s boyfriend, indicating he committed unsafe lane use for using a through-traffic lane rather than the left turn lane to turn left. However, they also cited defendant for careless driving (driving too closely). Defendant later pleaded guilty in traffic court to that charge. Continue reading ›

Negotiating Hospital Liens in Cape Coral Personal Injury Lawsuits

December 4, 2017 | Associates and Bruce L. Scheiner

If you have suffered a personal injury, you may be faced with a hospital lien on whatever damages you collect from the tortfeasor (wrongdoer). Hospital lien claims typically arise when you have received some emergency care after an auto accident or slip-and-fall and you lacked insurance to fully cover your treatment for your care.

Having an attorney to help you navigate this is important because usually, the charges claimed for the lien are highly inflated – well above what a typical health insurer would pay for the same treatment. Although hospitals and health care providers do have statutory rights to impose these liens, and they may not have to reduce the amount to the extent they would for an insurer. However, your injury attorney can help you negotiate and argue for what is truly fair.

Every state has different rules for how it handles these issues, and the Tennessee Supreme Court was recently faced with answering whether “reasonable charges” are the discounted amounts hospitals accept as full payment to the insurer or if it is the full, undiscounted bill sent to patients. Continue reading ›

Florida Supreme Court: Stand Your Ground Immunity in Criminal Case Does Not Confer to Civil Liability Immunity

October 9, 2017 | Associates and Bruce L. Scheiner

In a legal battle stemming from a barroom brawl in South Florida, the Florida Supreme Court marked a clear line between using the state’s “stand your ground” self-defense statute in criminal cases versus in civil trials.

The court ruled that while state law does allow stand your ground immunity in both criminal and civil cases, the determination of of immunity in a criminal case doesn’t automatically transfer over to a civil case. That means someone could be deemed immune in a criminal trial, yet still be held liable for damages in a separate civil trial.

Back in 2008 at a nightclub in Tampa, defendant struck plaintiff with a cocktail glass after plaintiff allegedly attacked defendant without provocation. Permanent damage was done to plaintiff’s eye. When criminal charges were filed defendant, he was able to successfully shield himself from conviction on a felony battery charge with an argument of self-defense under stand your ground. However, plaintiff then filed a civil lawsuit against defendant. Continue reading ›

Punitive Damages Are Not a Given in Florida, Even Where Liability is Found

October 2, 2017 | Associates and Bruce L. Scheiner

Two recent Florida court cases have affirmed punitive damages awarded in product liability litigation. One of those involved a $12.3 million punitive damage award against a tobacco company in a smoking-related death (that was a decision by the 2nd District Court of Appeal) and another involves $22.5 million punitive damage award against the same company in a different smoking-related death (about which the Florida Supreme Court declined to hear defendant’s appeal on a claim of the award being unconstitutionally excessive).

Punitive damages, as outlined in F.S. 768.73, are those that are awarded to punish the defendant, rather than simply compensate the victim for losses (which the purpose of compensatory damages). Punitive damages are awarded in addition to one’s actual damages, but only in certain circumstances. It is by no means a given.

According to a 2002 study by researchers at Cornell University, punitive damages are awarded at 3.5 percent of jury trials won by plaintiffs and 5.3 percent of bench trials (before a judge) won by plaintiffs. The highest rate of punitive damage awards occurs (as in these tobacco litigation cases), where an individual sues a large corporation in a bench trial. Under those circumstances, 6.7 percent of plaintiffs are awarded punitive damages. Cases involving fraud and intentional tort were the most likely to result in an award of punitive damages. Continue reading ›

Award of Attorney Fees After Rejected Settlement in Injury Lawsuit

September 24, 2017 | Associates and Bruce L. Scheiner

Your personal injury attorney must carefully consider any offer of pre-trial settlement by the defense in a civil case to better your chances you won’t run afoul of F.S. 768.79 at the conclusion of trial. The very first section of this statute stipulates that if a defendant files an offer of settlement that is not accepted by plaintiff within 30 days, defendant is entitled to “reasonable costs and attorney’s fees” incurred if the final judgment is that defendant was not liable OR the judgment obtained is at least 25 percent less than the original pre-trial settlement offer.

Obviously, there is no way to know for sure how a case is going to be decided or how much a plaintiff may be awarded in a successful case. That makes turning down settlement offers a risk. This is why having a personal injury lawyer with extensive local pre-trial negotiation and trial experience is invaluable. Knowing how such cases have gone in this same jurisdiction or in front of this same judge in the past is important to your case.

An example of this was recently weighed by the Alaska Supreme Court in Whittenton v. Peter Pan Seafoods, Inc. This was a truck accident case alleging vicarious liability of the negligent truck driver’s employer. The question was whether defendant’s offer of settlement prior to trial entitled defendant to collect attorney’s fees – even though plaintiff had won. Continue reading ›

Explaining the Concept of “Negligence” in Florida Personal Injury Cases

September 19, 2017 | Associates and Bruce L. Scheiner

There are three basic types of civil liability (legal responsibility) in Florida personal injury cases:

Negligence
Intentional Torts
Strict Liability

Intentional torts are those that involve actions like assault and battery – some kind of intentional action that caused physical harm to someone else. Strict liability most typically arises in product liability cases, and involves a legal responsibility – even though there was no actual negligence or intent to do harm. Rather, it is simply by the design/ production/ distribution of a defective product that caused harm that a defendant can be liable.

By far, most personal injury claims and lawsuits involve a claim of negligence. This is usually what is alleged in cases involving car accidents, slip-and-falls and medical malpractice. Negligence is an unintentional act or inaction (by someone who had a duty or obligation to conform to a certain standard of conduct) that resulted in injury to another person. Continue reading ›

Overcoming Assumption of Risk in Florida Personal Injury Lawsuits

August 16, 2017 | Associates and Bruce L. Scheiner

When a personal injury occurs in the course of an activity the injured person knew was dangerous, the court may shoot down claims of liability, citing the assumption of risk doctrine. However, Florida courts (specifically within the 1983 ruling of Kuehner v. Green) have historically limited successful use of the assumption of risk doctrine to cases involving:

Contracts not to sue (i.e., liability waivers);
Injuries arising out of contact sports.

Florida courts have held that rather than preventing a plaintiff from proceeding with a lawsuit at the outset, jurors should be allowed to decide whether plaintiff’s assumption of the risks should be factored into whether plaintiff was fully or partially at-fault for the the accident that resulted in injuries. Continue reading ›

Liability for Florida Fireworks Injuries

July 14, 2017 | Associates and Bruce L. Scheiner

The explosive power of fireworks is an effective means to evoke strong emotions – including excitement and patriotism. That’s part of why they are so popular around the Fourth of July.

But fireworks liability is an important topic of consideration this time of year too because all too often, negligent use or reckless mishandling of firearms can lead to serious injuries.

The NFPA (National Fire Protection Association) reports fireworks caused an estimated 15,600 reported fireworks in the U.S., including 1,400 structure fires, 200 vehicle fires and 14,000 outside and other fires. In addition, hospital emergency rooms saw an estimated 10,500 people for fireworks-related injuries just in a single year. The majority of those were burns. Injuries were inflicted mostly to hands and fingers, but also to head/ face/ ear and also to eyes. Arms, legs and trunks suffered the rest. Continue reading ›

Florida Supreme Court Rejects Daubert Evidence Standard

May 30, 2017 | Associates and Bruce L. Scheiner

In a ruling that will have a major impact on all Florida personal injury lawsuits, the Florida Supreme Court has rejected a more stringent standard of evidence known as the Daubert Standard, in favor of the less restrictive Frye Standard that it followed for years.

Florida legislators in 2013 voted to alter the Florida Evidence Code to a switch from Frye to Daubert, and Gov. Rick Scott signed that measure into law, with favor from the defense bar and big business clients. However, the courts never formally followed suit, and it seems with this ruling, they don’t intend to do so. The court cited constitutional concerns.

We recognize legal discussions on evidence standards can sound like dry jargon. But here’s the reality: It’s likely to have a direct impact on your Fort Myers injury lawsuit. The reason is that the Daubert requires a higher standard of proof just to get a foot in the door. That can mean your case could be killed before it ever even gets started, which plaintiff attorneys like us view as an issue of access to the courts. Specifically, Daubert involves the admissibility of expert witness testimony. That’s not to say “Frye” is a free-for-all, by any means. However, it does give you a better chance of getting your valid case in front of a judge and reaching a favorable solution. Continue reading ›

Tort Reform Proponents Make Gains, Threaten to Make Injury Lawsuits Tougher

April 28, 2017 | Associates and Bruce L. Scheiner

Proponents of tort reform are pressing forward with a series of bills that, if passed, would make it increasingly difficult to file an injury lawsuit, to pursue class action litigation or to obtain just compensation.

The term “tort reform” is a tidy way of explaining efforts that make it harder for those who have suffered serious injury due to someone else’s negligence to seek and obtain justice. It’s wrapped in a pro-business agenda, and is predicated on the notion that plaintiff attorneys are greedy and frivolous claims are rampant and plaintiffs unfairly are awarded millions – even when it was largely their own fault for being hurt. This characterization overlooks the reality of our civil justice system and the fact that it can already be an uphill climb for many injury plaintiffs. Yet it’s been very successful. Look no further than the so-called “McDonald’s coffee case,” wherein an elderly woman was awarded $1 million (or two days’ coffee sales) after she was so severely burned by the company’s hot coffee that she nearly died. The fast-food restaurant was selling coffee far in excess of what would be considered safe temperatures and thousands of people had suffered burns in the year prior. Yet tort reform proponents managed to successfully rewrite the script for the American public, who now generally look back on that case as a class “frivolous lawsuit.”

Now, with politicians friendly to tort reform now controlling both houses of Congress and a president considered pro-business, tort reform supporters are pressing forward with their agenda. Continue reading ›