Published on:

Under Florida law, a prevailing party in a personal injury case may be entitled to attorneys’ fees and costs if that party filed a settlement offer that meets certain requirements, and the offer was not accepted by the other party.  The First District recently considered whether an insurer was liable for attorneys’ fees and costs awarded to the plaintiff after a jury awarded her more than four times the amount of her settlement proposal in Government Employees Insurance Company v. Macedo.

car accidentThe insurer appealed a judgment requiring it to pay the plaintiff’s attorneys’ fees and costs.  The insurer had rejected the plaintiff’s $50,000 settlement proposal.  The jury found in favor of the plaintiff, awarding more than four times her settlement proposal.  The plaintiff joined the insurer to the judgment and sought fees and costs.  The trial court awarded fees and costs against the insurer and its insured jointly and severally.  The insurer appealed.

The appeals court looked to its decision in a similar previous case, as well as other Florida District Court cases.  The insurance policy gave the insurer the sole right to litigate and settle claims.  Additionally, the policy required the insurer to pay for “all investigative and legal costs incurred by us” and “all reasonable costs incurred by an insured at our request.”  The policy did not exclude costs or fees awarded to the plaintiff, nor did it define legal or other costs.  The court found that since the insurer is the party that chooses whether to litigate, costs arising from the litigation, including those incurred by a prevailing opposing party, are incurred at the insurer’s request.  The insurer is therefore liable for those costs pursuant to the policy.  The court affirmed the judgment holding the insurer jointly and severally liable with the insured for the plaintiff’s fees and costs.

Continue reading →

Published on:

In some jurisdictions, bars or even social hosts face liability for providing alcohol to a person who subsequently causes an automobile accident while intoxicated.  In Florida, however, bars and restaurants are only liable if they willfully and unlawfully serve or provide alcohol to a person who is under the legal drinking age or if they knowingly serve alcohol to a person who is “habitually addicted” to alcohol.  § 768.125, Florida Statutes.  In a recent Florida case, the plaintiffs argued that a restaurant had assumed a voluntary duty to keep intoxicated patrons from driving and that its alleged negligence in performing that duty subjected it to liability outside § 768.125.

file271287502322In De La Torre v. Flanigan’s Enterprises, Inc., the plaintiffs had been injured in a collision with an intoxicated driver.  They filed suit against the company that owns and operates the restaurant where the driver had been drinking.  The driver became intoxicated while at the restaurant, and the employees stopped serving her alcohol and allegedly started serving her water.  She ultimately drove away from the restaurant.  Sometime during the night, she entered oncoming traffic and hit the vehicle occupied by the plaintiffs.

The restaurant had an internal policy to prevent intoxicated patrons from driving.  The plaintiffs alleged that the policy involved the restaurant employees or law enforcement officers taking keys from patrons and ensuring that they took a cab or left with a sober driver.  The plaintiffs sued the company that operated the restaurant, claiming it had undertaken a duty to prevent the driver from driving while intoxicated, but it was negligent.  The defendant moved to dismiss, contending that § 768.125 precluded liability.  The trial court granted the defendant’s motion, and the plaintiffs appealed.

Continue reading →

Published on:

The standard for expert testimony is set forth in the case of Daubert v. Merrell Dow Pharmaceuticals, Inc.  To challenge the expert testimony of the other party, a party must timely raise a Daubert objection.  The trial court has a gatekeeper function regarding expert testimony and must be given the opportunity to make a determination on the admissibility of the evidence.

AirbagThe Third District recently considered whether a trial court properly granted a mistrial in a case in which the defendant objected to the plaintiff’s expert testimony but failed to raise Daubert until after the jury returned the verdict.  In Rojas v. Rodriguez, the plaintiff was the passenger in a vehicle that was hit by the defendant’s vehicle.  The defendant conceded liability, but the case went to trial to determine if the plaintiff’s herniated disc was caused by the accident.

At trial, a neurosurgeon testified that the injury was consistent with the plaintiff’s testimony that his body twisted in the accident.  The defendant objected, arguing that the neurosurgeon’s testimony was outside his expertise.  The trial court overruled the objection.  The defendant later moved for a mistrial based on the neurosurgeon’s testimony, but he did not raise a Daubert objection.  The trial court also denied that motion.  The jury awarded the plaintiff past and future medical expenses and past and future pain and suffering.  After the verdict was delivered, the defendant renewed the motion but did not raise a Daubert objection.  The court requested a written motion, and in the written motion, the defendant again argued that the testimony was outside the neurosurgeon’s expertise.  The written motion was the first time the defendant raised Daubert. After a hearing, the trial court granted the motion.

Continue reading →

Published on:

Section 90.402, Florida Statutes, provides that all relevant evidence is admissible, unless otherwise provided by law.  Relevant evidence is not admissible, however, if the risk of unfair prejudice, confusion, misleading the jury, or the unnecessary presentation of cumulative evidence substantially outweighs the probative value.  § 90.403, Florida Statutes.  Case law has held that if relevant evidence is not unfairly prejudicial, the trial court cannot exclude it.

The First District recently addressed a trial court’s exclusion of one party’s expert testimony, while allowing the other party’s expert testimony.  Taylor v. Culver arose from a low-impact automobile accident.  A biomedical engineering expert was allowed to testify for one party, but the trial court excluded the testimony of the other party’s biomedical engineering expert.  The party appealed, arguing the court erred in excluding his expert’s testimony.

DSC00357-BWThe appeals court noted that the trial court’s discretion in admitting or excluding evidence is limited by the evidence code and case law.  The appeals court looked to its decision in  Council v. StateCouncil was a criminal child abuse case in which the defendant sought to introduce testimony by a biomechanics expert that the child’s injuries could have been caused by a fall.  In that case, the court noted that a biomechanics expert is not qualified to testify as to the extent of an injury, but the expert is qualified to give an opinion regarding causation within the field of biomechanics.  The expert’s opinion was that the child could have sustained the injuries by falling from a day bed and that the child’s injuries could not have been caused by shaking alone.  The court found that the expert’s opinions were within the field of biomechanics, and the expert was therefore qualified to testify to them.  Furthermore, the Council court found that the testimony was relevant to establish the defendant’s theory of accidental injury by rebutting the state’s testimony that the injuries were consistent only with non-accidental trauma.  The appeals court found that the trial court had erred in excluding the expert’s testimony.

Continue reading →

Published on:

Unfortunately, drivers are not always as careful as they should be around pedestrians.  All collisions between vehicles and pedestrians, however, are not the driver’s fault.  Pedestrians also have a duty of care.  The pedestrian and driver may share responsibility for an accident.  In some cases, the pedestrian may be found to be the sole proximate cause of the accident, especially if the driver made reasonable efforts to avoid the accident.

P9210040The Second District recently upheld an order granting summary judgment in a case involving a truck that hit and killed a man trying to cross the interstate in Panzera v. O’Neal. At approximately 3 a.m., a man climbed a fence and attempted to cross I-75 on foot in an area with no street lights.  He was struck by a tractor-trailer and died as a result of his injuries.  The man’s estate filed suit against the driver and his employer.

The driver testified that he did not see the pedestrian until he ran across the emergency lane into the truck’s lane.  He further testified that he braked hard and tried to swerve but could not avoid hitting the pedestrian.

Continue reading →

Published on:

Under certain circumstances, a trial court has the power to increase the damages awarded by a jury under the principle of additur. Federal courts do not allow an additur, but Florida state law does. Pursuant to § 768.043, Florida Statutes, the court shall, upon proper motion, grant an additur if it determines the award was clearly inadequate. The court must consider the following factors: whether the award indicates “prejudice, passion, or corruption” of the jury; “whether it clearly appears” the jury ignored evidence or misconceived the merits of the case regarding damages; whether the award is reasonably related to the proven damages and injury; and whether the award is supported by evidence and “could be adduced in a logical manner by reasonable persons.” If the affected party does not agree to the additur, the court must order a new trial on damages.

Florida case law has added a requirement that the trial court provide findings to support the additur. Generally, if a trial court fails to do so, the appellate court will send the case back to allow the trial court to state its findings, but the appeals court may reinstate the jury verdict if it finds an abuse of discretion.

Wrecked Car2.jpgThe Fourth District recently reviewed the appropriateness of an additur in the case of Ferrer v. Serna. The case arose from a low-speed car accident. The plaintiff did not seek treatment on the day of the accident but did see her doctor within a few days. Dr. Epstein found that the plaintiff suffered from a neck injury, sprains, and an aggravated pre-existing back condition as the result of the accident. He also found that she had a degenerative spinal condition that became symptomatic as a result of the accident. Although Dr. Epstein recommended that she not seek back adjustments from a chiropractor, the plaintiff did receive such adjustments from Dr. Rodriguez multiple times per week for several months.
Continue reading →

Published on:

There are often facts that accident victims hope do not come out in litigation. In some cases, depending on what those facts are, a skilled plaintiff’s attorney may be able to get the evidence excluded. In other cases, the court will allow the evidence, and the attorney must work to minimize its effect.

golf-cart-1448617-639x696.jpgThe Third District recently examined whether a trial court properly excluded evidence in the case of Maniglia v. Carpenter. The parties to the case had been involved in an automobile accident in September 2009. The parties disputed the extent of the accident, with the defendant and his passenger claiming it was just a bump and the plaintiff alleging it was a severe sideswipe.

The plaintiff saw a chiropractor the day after the accident for neck and back pain. According to the doctor’s testimony, the x-rays showed “normal wear and tear,” but no evidence of acute injury.
Continue reading →

Published on:

Florida law requires an automobile insurance policy to include $10,000 in personal injury protection (PIP) benefits. PIP covers medical treatment resulting from the accident, but there are limitations and procedural requirements. To be obligated to pay a claim, the insurer must receive proper notice of the loss. The recent case of State Farm Mutual Automobile Insurance Company v. Gonzalez addressed the issue of notice. The plaintiff in Gonzalez was treated at a hospital emergency room for injuries she received in an automobile accident in May 2001. The hospital bill was paid by her health insurance.

letter-box-1204824-640x480.jpgIn January 2002, the plaintiff’s attorney sent a letter of representation to her automobile insurer. The letter stated the plaintiff was injured in the accident and requested insurance information. The attorney attached the police report, which indicated that the plaintiff had been transported to the hospital. The attorney’s letter did not include any documentation of the hospital’s charges or a demand for payment for those services.

According to the opinion, the automobile insurer repeatedly contacted the plaintiff’s counsel to request information and bills or statements for any treatment the plaintiff had received, but it did not receive a response and ultimately closed its claim in August 2004.
Continue reading →

Published on:

Most automobile accident claims are paid by insurers, but as a general rule, the insurer is not named as a party to the action. There are laws that are intended to keep the jury from learning that insurance would pay for the damages in a case before it so that the jury will not be influenced by that fact. The Second District recently considered whether a woman could bring a direct action against a liability insurer that she alleged had gone back on an agreement to pay the policy limits in GEICO General Insurance Company v. Lepine.

Thumbnail image for phone-1543593-638x368.jpgThis case arose from a fatal automobile accident. The deceased man’s wife pursued a claim against the other driver’s insurance. She alleged that a representative of the insurance company agreed to pay her the $100,000 policy limits in both a voicemail message and a conversation with her attorney. She further alleged that the insurance company later refused to pay. She filed suit against both the driver and his insurer. In her complaint, she stated causes of action of negligence and wrongful death against the driver. She also alleged a breach of contract claim against the insurer for its failure to pay the policy limits, as well as a breach of contract claim against the driver for the insurer’s failure to pay.

The insurer moved to dismiss the claim against it. It argued that the nonjoinder statute barred the direct action against it. The nonjoinder statute, section 627.4136, Florida Statutes, states that a person who is not insured under the liability policy cannot bring a direct action against the liability insurer for a cause of action that is covered by the policy without first obtaining a settlement or verdict against the insured. The insurer may be joined when the judgment is entered or a settlement is reached during the pendency of litigation. The nonjoinder statute is designed to prevent the availability of insurance from influencing the jury’s determination of damages.
Continue reading →

Published on:

Florida law allows the parties in civil litigation to make an “offer of judgment,” which is a proposal to settle the case presented to the other party. If the plaintiff makes such an offer, the defendant has 30 days to accept. If the defendant rejects or fails to accept the offer within that time frame, the plaintiff may recover reasonable costs and attorney’s fees if the judgment is at least 25% greater than the offer.

car-crash-3-1512740-640x480.jpgSection 768.79, Florida Statutes, sets forth the requirements of the offer. Such offers must be in writing and indicate they are being made under the statute. They must name both the party making the offer and the party to whom the offer is made. The offer must state the total amount of the offer and provide the amount offered to settle punitive damages claims with particularity.

Section 1.442 of the Florida Rules of Civil Procedure provides further clarification of the requirements for an offer. These requirements include naming the “party or parties making the proposal…,” stating any conditions with particularity, and stating “the amount and terms attributable to each party” when the offer is a joint proposal. The Florida Supreme Court recently decided what happens when an offer names only one of the plaintiffs as the party making the offer and does not attribute the amounts to the plaintiffs, but does clearly state that both plaintiffs will dismiss their claims if the offer is accepted.
Continue reading →