South Florida Car Accident Law Blog

Florida auto accident litigation, like many other lawsuits, often involves conflicting recollections of the facts. In Miller v. Perez, the Second District Court of Appeal explains that this makes certain cases difficult to decide in the summary judgment stage.

Plaintiff Truman McGill was injured in a car accident when the tractor-trailer he was driving allegedly rear-ended a truck driven by Defendant Martin Perez. The accident occurred when Mr. Perez turned right to travel south on to the road on which McGill was also traveling. McGill's tractor-trailer collided with Perez's truck when Perez merged into the right-hand lane.

McGill sued Perez for negligence. Prior to trial, Perez filed a motion for summary judgment, arguing that McGill could present no set of facts to overcome the presumption that the following driver in a rear end collision is negligent. The presumption is that the rear driver's actions are the sole proximate cause of the accident and any resulting injuries in a rear end accident. The circuit court agreed with Perez, granting summary judgment in his favor.

On appeal, the court noted that "the presumption that the following driver in a motor vehicle accident is negligent can be rebutted when that driver 'produces evidence which fairly and reasonably tends to show that the real fact is not as presumed.'" In this case, according to the court, a number of factual issues remained to be resolved that may ultimately rebut the presumption. For example, "the parties differed about whether fog was present and about whether the road was wet" along with the question of whether Mr. Perez's lights were on at the time of the accident. More importantly, McGill alleged that Perez failed to properly yield before merging and did not have enough time to accelerate when he merged.

The court held that because there remained disputes as to facts material to the rear-end presumption, summary judgment was not appropriate. Furthermore, even if McGill cannot overcome the rear end presumption, evidence indicating that the lead driver may have been negligent raises issues of shared liability and proportionate damages, which should be determined by a jury rather than at the summary judgment stage. Florida operates under a comparative negligence system, in which a person who is injured partly due to his or her own negligence can hold another negligent party proportionately liable. Thus, if McGill can show negligence on Perez's part, he may be entitled to proportionate damages.

Continue reading "Florida Court Reverses Ruling in Tractor-Trailer Rear End Accident - Miller v. Perez" »

In Searcy v. Zawackis, the Fourth District Court of Appeal explains that negligence is a two-way street in a Florida car accident lawsuit.

Sue Ellen Kelly was killed when the car she was driving collided with a FedEx truck at an intersection in Palm Beach County. The accident occurred shortly after Hurricane Wilma struck the area, as a result of which the traffic lights at the intersection were out of service. Florida law requires motorists to treat an intersection with inoperable traffic lights as a four-way stop. The FedEx truck allegedly had stopped at the intersection facing west just before the accident. As the truck turned left to head south, Kelly's car - headed northbound - allegedly entered the intersection and collided into the truck.

The personal representative for Kelly's estate sued both FedEx and the driver, alleging that her negligence caused the accident.

A driver who was headed northbound at the time of the accident testified at a deposition that Kelly was speeding when she entered the intersection - the driver said he was going 42 miles-per-hour (the speed limit was 35) and that Kelly passed him "really going fast" - and did not stop at the intersection before crashing into the truck. A southbound driver also testified during a deposition, stating that the truck driver looked right and left, then looked down for two or three seconds before looking right again and then straight ahead before proceeding into the intersection when Kelly's car "came flying" in. The FedEx driver testified at deposition that she did not look down at any time before moving into the intersection.

Although the circuit court granted Defendants' motion for summary judgment, the Fourth District reversed the decision on appeal, finding that "[D]efendants did not show conclusively the absence of any genuine issue of material fact regarding the FedEx driver's alleged lack of negligence." According to the court, the question of whether the truck driver looked down before pulling into the intersection is material because the delay caused "may have been sufficient for her to see the decedent speeding towards the intersection in the northbound lanes."

Continue reading "Florida Court Reverses Ruling in Palm Beach Car Accident at Intersection Where Traffic Lights Were not Working - Searcy v. Zawackis" »

Under certain circumstances, state law presumes that a Florida rear end auto accident is caused by the rear driver in the accident. In Sorel v. Koonce, the First District Court of Appeal explains how the presumption works and when it should be applied.

Cindy Sorel was injured when in a rear end accident when her car was hit from behind by a Comcast van driven by Troy Koonce. She filed a negligence action against both Koonce and Comcast, asserting that Koonce was responsible for the accident.

Sorel was seated in the front passenger seat - her husband was driving and their son was seated in the back - when the accident happened. The Sorels' car was the second of three waiting for a green left turn arrow at a traffic light. The Comcast van was directly behind them. Each of the three cars began to move forward when the light turned green. The Sorels testified at trial that, as they were turning, a car ran a red light through the intersection, which caused Mr. Sorel to brake. When he did, the Comcast van collided into the back of the Sorels' vehicle.

The trial court rejected Plaintiff's request for a directed verdict. After a jury found that her injury was not caused by Defendants' negligence, Plaintiff filed a motion seeking a new trial, asserting that the trial court should have entered a verdict in her favor.

"Case law has identified a rebuttable 'presumption of negligence' in favor of the front driver in a rear-end collision," the First District noted in reversing the trial court's decision. Specifically, the presumption is that the rear driver's actions are the sole proximate cause of the accident and any resulting injuries, according to the court. However, the rear driver can overcome the presumption by presenting evidence that "fairly and reasonably tends to show" that it is misplaced in a particular case. While proof that the lead driver made a sudden stop is generally insufficient to rebut the presumption, evidence that the sudden stop was "at a time and place where it could not reasonably be expected by the following driver" will serve as a rebuttal, the court explained.

Continue reading "Court Explains Causation Presumption in Florida Rear End Car Accidents - Sorel v. Koonce" »

Doctor testimony often plays a key role in a Florida car accident lawsuit. In Clair v. Perry, Florida's Fourth District Court of Appeal takes on the question of whether - and under what circumstances - such testimony should be considered as expert testimony.

Appellee Lindi Perry was injured in a car accident involving a vehicle driven by Appellant Maria Clair. Because Clair admitted that her negligence caused the accident, a trial was held for the limited purpose of determining the amount of damages to which Perry was entitled. At trial, Perry sought to introduce testimony from her treating physician, Dr. Theophilos. Clair objected to the portion of the testimony regarding the issue of whether Perry sustained permanent injury - and thus was likely entitled to additional damages - as a result of the accident. Clair argued that this constituted expert testimony and, as a result, that Perry was required to notify Clair of the testimony prior to trial.

The trial court initially sided with Clair, excluding the portion of Dr. Theophilos' testimony related to permanent injury. Following a verdict in which the jury determined that Perry did not sustain permanent injury in the accident, however, the trial court granted Perry's motion for a new trial, finding that it erred in excluding Dr. Theophilos' injury permanence testimony.

On appeal, the Fourth District affirmed the trial court's new trial order. "Without a new trial, appellee would be substantially prejudiced in her ability to present her case," the Court ruled.

Florida Rule of Civil Procedure 1.280(b)(4) provides that a party to a lawsuit in state court is entitled to discovery of "facts known and opinions held by experts" prior to trial. According to the Court, however, the rule is limited to facts and opinions "acquired or developed in anticipation of litigation or for trial." Citing the Third Circuit's 1981 opinion in Frantz v. Golebiewski, the court held that although a doctor is generally considered an expert, a treating physician does not obtain his or her expert knowledge for the purpose of litigation, but instead to treat the patient. Thus, according to the court, a treating physician will not usually be treated as an expert witness subject to Rule 1.280(b)(4).

Continue reading "Doctor Testimony in Florida Car Accident Case: Expert? Clair v. Perry" »

Car accident cases often involve a battle of medical experts, including a doctor hired by the defense to independently examine the person allegedly injured in the accident. In Cascanet v. Allen, Florida's Fifth District Court of Appeal explains that such an expert must limit his or her testimony to the opinions rendered in a written report following the examination.

Plaintiff Joshua Cascanet suffered back injuries when the car he was driving was rear ended while stopped at a red light. The vehicle that struck Cascanet's car was driven by Defendant Keri Ann Allen and owned by her father, Defendant John Allen. As the court explains, Defendants' vehicle "'submarined' under the rear of Cascanet's car, lifting it, propelling it forward, and then dropping it to the ground." Cascanet was treated at a local emergency room where it was determined that he'd suffered two herniated discs and a possible third.

At trial Cascanet testified that treatments such as shots and chiropractic work failed to relieve the pain caused by his injury and that the pain continues to persist and, in fact, has worsened over time. His treating physician further testified that Cascanet will likely have to undergo a series of very painful surgical procedures in the future. For the defense, an orthopedic surgeon examined Cascanet and prepared a written report stating that Cascanet's injuries were likely the result of the accident and that surgical treatment may eventually be necessary.

Although Defendants' attorney agreed that the surgeon's testimony would not include any new opinions, the surgeon nevertheless went on to testify that "many studies" have shown that disc herniations can sometimes heal themselves and, as a result, Cascanet might never require surgery. He also indicated that other sources than the accident may have contributed to Cascanet's ongoing pain.

After two hours of deliberation, the jury awarded Cascanet $23,764.57 to cover past medical bills and lost wages. It did not, however, award any future damages, finding that Cascanet did not sustain a permanent injury.

Continue reading "Florida Court Limits Medical Examiner Testimony in Rear End Car Accident Case - Cascanet v. Allen" »

In Henry v. Hoelke, the Fourth District Court of Appeal takes on the failure to wear a seatbelt defense in a Florida car accident case.

Plaintiff Egline Henry was paralyzed when the car she was driving with her three-year-old daughter and a friend was struck by Defendant Jena Hoelke's vehicle as Defendant made a left into oncoming traffic. At trial, Plaintiff indicated that she did not brake before the impact because didn't see the other car until the collision. According to the court, "[t]he force of the impact caused Plaintiff's vehicle to rotate in different directions, roll over, and eventually come down on the driver's side." As a result of the accident, Plaintiff suffered a dislocated vertebrae which pinched her spinal cord and rendered her paralyzed.

Defendant argued that Plaintiff was at least partially liable for her injuries because she was not wearing a seatbelt at the time of the accident. Although both Plaintiff and her adult passenger testified that she was in fact wearing a seatbelt when the collision occurred, Co-Defendant Stephen McCulloch testified that he did not see Plaintiff wearing a seatbelt after the accident. Furthermore, an expert testified that Plaintiff's medical records did not show the type of bruising or abrasions in areas that would indicate that she was wearing a seatbelt. However, the expert indicated that he could not rule out the possibility that she was wearing a seatbelt. He also said that Plaintiff could have suffered the same injuries if she had been wearing a seatbelt, adding "seat belts in vehicles can't protect occupants in rollovers because they were designed for frontal collisions."

The trial court denied Plaintiff's motion for a directed verdict, in which she argued that Defendant failed to introduce sufficient evidence to argue that Plaintiff was not wearing her seatbelt at the time of the accident and that this caused her injuries. Defendant, on the other hand, argued that a jury could infer that Plaintiff was not belted based on the testimony of McCulloch and the expert. The trial court denied the motion for directed verdict. The jury attributed 65% negligence to Defendant and 35% negligence to Plaintiff and awarded Plaintiff more than $4 million in damages.

On appeal, the Fourth District reversed the trial court's decision on the directed verdict motion, finding that there was not competent evidence linking Plaintiff's injuries and her alleged failure to wear a seatbelt. Citing its 1994 decision in Zurline v. Levesque, the court held that "for a defendant to submit a seatbelt defense to the jury, the defendant must present competent evidence that plaintiff's failure to wear the seatbelt caused or substantially contributed to her injuries." In this case however, the court found that Defendant failed to introduce "any" evidence showing that Plaintiff was not wearing a seatbelt at the time of the accident because both McCulloch and the expert testified that they were not sure whether she was belted. Furthermore, even if she were not wearing a seatbelt, "Defendant failed to present competent evidence establishing that Plaintiff's failure to wear her seatbelt caused her injuries." As a result, the court reversed the decision and remanded the case to the trial court for entry of a directed verdict in Plaintiff's favor.

Continue reading "Court: Paralyzed Car Accident Plaintiff Not Injured By Alleged Failure to Wear Seatbelt - Henry v. Hoelke" »

So you were injured in a car accident and you've got the medical bills and vehicle damage to prove it. Suing to recover for your injuries should be like shooting fish in a barrel, right? Not so fast. In order to successfully sue for damages related to a car accident, a person must not only show that he or she was injured, but also that the injury was caused by the person being sued. The Fourth District Court of Appeal's recent ruling in Durse v. Henn is a good example of just how important the issue of causation is in a Florida car accident lawsuit.

Plaintiff George Durse was a passenger in a vehicle that was struck by another vehicle driven by Defendant Janice Henn while Durse's vehicle was stopped. Durse sued Henn, seeking to recover for injuries sustained in the accident.

Both parties called accident reconstruction experts to testify at trial. Durse's expert testified that Henn first ran into the Durse vehicle before a third car - driven by Keay - rear ended Henn's vehicle. Henn's expert, on the other hand, testified that Keay's vehicle rear ended Henn's first, which caused Henn's vehicle to strike the Durse vehicle. The investigating police officer, Officer Carmack, testified he concluded in his investigation that the Keay vehicle struck Henn's vehicle before Henn's vehicle struck the Durse vehicle. Carmack based this conclusion on statements from the drivers at the scene of the accident. He did not conduct an accident reconstruction or a crash analysis.

The jury found that Henn was not negligent. On appeal, Durse argued that Officer Carmack's conclusion regarding the cause and sequence of the accidents violated Florida's accident report privilege, which provides that a crash report made by a person involved in a crash and any statement made by such person to a law enforcement officer for the purpose of completing a crash report cannot be used as evidence in a subsequent trial, because it was based solely on statements taken at the accident scene.

Noting that "Carmack did not perform any kind of test to determine first impact, and instead, he only took statements," the court ruled that the trial judge abused his discretion in allowing Officer Carmack to testify regarding his conclusion as to which vehicle caused the first impact. Furthermore, because the parties presented conflicting evidence on the issue, this error could not be deemed harmless, according to the court. As a result, the court reversed the jury verdict and remanded the case for a new trial.

Continue reading "Causation In Florida Car Accident Litigation - Durse v. Henn" »

While Florida traffic deaths have fallen in recent years, a bloody weekend earlier this month should serve as a reminder to both drivers and pedestrians of the dangers of life on the road.

Ten people were killed in South Florida in a 24-hour span during a recent weekend, the most in one day on the road in Dade and Broward in recent history. From March 17 to March 18, six people were killed in car accidents in Miami-Dade and another four perished in Broward, according to the Miami Herald's Christina Veiga.

"The deadliest of the crashes left four people dead in a fiery head-on collision on the Gratigny Expressway in Northwest Miami-Dade early Sunday," Veiga reports. Meanwhile, a pregnant Fort Lauderdale woman died when a car veered off the street on Sunday afternoon and slammed into a Riverside Hotel pool cabana just off Las Olas Blvd. Car accidents also claimed the lives of a woman who was run over by a fellow churchgoer in the parking lot of St. Ambrose Church in Deerfield Beach, a 5-year-old girl struck by a van while riding a Big Wheel in her Ft. Lauderdale neighborhood and a 14-year-old on a skateboard who was struck by a car in Tamarac.

The fatal weekend was topped off with a hit-and-run accident, which killed two people (including one motorist who stopped to help) who were changing a tire on the side of Florida's Turnpike at 1 a.m. Sunday when a car swerved onto the shoulder and struck them before leaving the scene.

The tragic weekend comes despite a recent downswing in traffic related deaths. In 2010, the State Mileage Death Rate (the number of deaths per 100 million miles traveled) decreased to 1.25, the lowest since Florida Highway Safety and Motor Vehicles began calculating the figure. Overall traffic fatalities dropped by more than 30 percent from 2005 to 2010. Still an average 645 car accidents occurred in the Sunshine State each day in 2010, resulting in 2,444 deaths and more than 195,000 injuries.

Continue reading "String of South Florida Car Accidents Reminds Drivers of Danger on the Road" »

One of the most important issues in a Florida personal injury case is often the cause and extent of injuries suffered by the plaintiff. But what happens when a person injured due to another's negligence suffers further injury due to poor or inappropriate medical treatment of the original injury? Florida's Second District Court of Appeal explains in Pedro v. Baber.

Betsey Baber was injured when her car was rear ended by a vehicle driven by Joey James Pedro. After driving herself to the hospital, Baber was diagnosed with whiplash by emergency room staff. Still suffering from pain four months later, Baber consulted Dr. Nucci, an orthopedic surgeon who diagnosed her with muscular and disc injuries in her neck and lower back. Following several months of treatment, Baber underwent surgery for the injuries. Although the pain initially decreased after the surgery, it later returned.

Baber sued Pedro and his wife, the vehicle's owner, for negligence. At trial, the Pedros argued that they should not be liable for expenses related to the surgery because it was not necessary. Both Baber and Dr. Nucci testified that the surgery was for injuries caused by the car accident. The Pedros, however, called an expert witness - Dr. Knezevich - who testified that the injuries treated in the surgery were degenerative and not caused by the accident. The injuries that Baber sustained in the accident, according to Dr. Knezevich, did not require surgery.

At the conclusion of trial, the trial judge granted Baber's request that the judge provide a so-called "Stuart instruction" to the jury, informing it that a person whose negligence causes an accident or injury is responsible for additional injuries caused by the medical negligence of a physician treating the plaintiff for the original injuries. After the instruction was given, Baber's lawyer argued in his closing statement that Dr. Nucci's surgery was unnecessary and had permanently injured Ms. Baber. The jury returned a verdict for Baber, finding that Mr. Pedro's negligence caused her injuries and, as a result, that the Pedros are responsible for all medical costs including those related to the surgery.

On appeal, the Second District affirmed the decision, ruling that the trial court did not abuse its discretion in providing the Stuart instruction. In so doing, the Court noted that it was the Pedros' witness who opened the door to questioning the necessity of the surgery in the first place. Once the Pedros' attacked Dr. Nucci's credibility and the decision to perform the surgery, according to the Court, the trial court was justified in giving the Stuart instruction.

Continue reading "What Happens When You're Injured in a Car Accident and Again by Subsequent Medical Treatment? Pedro v. Baber" »

Late last week, the state legislature agreed to a much debated revamp of Florida's no-fault car insurance law intended to cut down on fraudulent claims and the spike in insurance premiums they cause Sunshine State drivers.

Personal Injury Protection (PIP) is designed to quickly provide benefits for a person injured in an automobile accident, regardless of fault. Florida drivers must carry a minimum of $10,000 in PIP coverage, which provides payment for medical, wage loss and death benefits resulting from an accident. The system also limits an insured person's right to sue for non-economic losses such as pain and suffering.

In a 22-17 vote, the state senate passed a PIP reform bill (HB 119) on Friday night. The Tampa Bay Times' Tia Mitchell reports that "[t]his new iteration of no-fault car insurance still requires $10,000 in minimum coverage, which can be used by people who are seriously injured in car accidents. But people with moderate or "soft-tissue" injuries can collect only $2,500 in benefits." It will also force insurance companies to recalculate rates due to potential cost savings at an expected rate of 10 percent.

While the number of reported Florida car accidents continues to drop overall, PIP claims - and insurance premiums - have risen in recent years. The state Office of Insurance Regulation reported in April that the number of PIP claims increased 26% to 386,464 statewide in 2010. In South Florida, PIP claims skyrocketed by 48%, with the region's insurers paying out more than $1 billion in claims.

Officials say the rise in claims is in part due to staged accidents. Perpetrators also often work with sham clinics to charge insurance companies for medical exams and procedures that simply never happen. In December, a pair of Miami women were arrested and charged with insurance fraud, racketeering, grand theft, patient brokering, organized scheme to defraud and operating an unlicensed clinic for their roles in an alleged accident staging scheme.

Continue reading "Florida Legislature Passes PIP Reform" »

Defendants in Florida car accident cases often seek to dismiss a lawsuit on a number of grounds, including jurisdiction and failure to state a claim on which relief can be granted. Fraud is a lesser used basis for dismissal, one that not only challenges a plaintiff's case, but also essentially accuses the plaintiff of lying. In Chacha v. Transport USA, Inc., the state's Fourth District Court of Appeals recently held that a trial court granting a motion to dismiss a case for fraud must make specific written fact findings supporting its conclusion that a plaintiff perpetrated or attempted to perpetrate a fraud on the court.

Plaintiff Ronald Chacha sued Defendants Transport USA and Juan Carlos Guzman for permanent physical injuries sustained in a 2004 car accident. Chacha was previously injured in a 1999 work accident, which caused a number of injuries. He indicated at a deposition that he did not sustain back injuries as a result of this accident or at any time before the 2004 car accident. Later in the discovery process, Chacha stated that 2004 car accident caused lower back, and other injuries in addition to aggravating those from the 1999 accident.

One week before trial, Defendants filed a motion to dismiss the case for fraud on the court. Specifically, according to the Fourth District, Defendants claimed that "Chacha lied about his prior back injuries and concealed his past medical history from his treating physicians." Defendants claims were based on information from two doctors who treated Chacha: Dr. David B. Ross and Dr. Steven Gelbard. Dr. Ross, who treated Chacha after both the 1999 and 2004 accidents, provided medical records indicating that Chacha complained of lower back pain during at least two visits prior to the 2004 accident. His notes from another four pre-2004 visits, however, do not mention Chacha complaining of such pain.

Dr. Gelbard, a neurosurgeon who began treating Chacha roughly three months before the 2004 accident, testified at a deposition that Chacha suffered permanent injury as a result of the 2004 accident and that Chacha did not tell Dr. Gelbard about any back injury prior to that accident.

Following a hearing that did not include witness testimony or the presentation of other evidence, the trial court granted the motion to dismiss without explanation. In a later written order, the judge stated simply that based on clear and convincing evidence Chacha committed fraud concerning his medical history with the intent to interfere with the Court's review of the case.

Continue reading "Florida Court Rules on Alleged Plaintiff Fraud in Car Accident Case - Chacha v. Transport USA, Inc." »

When a car accident happens in Florida, a police officer who arrives at the scene typically compiles an accident report providing details related to the accident based on information gathered at the scene, including witness statements. In Sottilaro v. Figueroa, Florida's Second District Court of Appeals explains when and how the statements included in such a report can be used at trial.

Maricela Figueroa, the personal representative of the Estate of Christopher Cepeda, sued Defendants Denise and Phillip Sottilaro for wrongful death in an action arising from an accident in which Ms. Sottilaro hit fourteen-year-old pedestrian Christopher Cepeda with her motor vehicle, causing his death. A police officer who arrived at the scene following the accident created a traffic fatality investigation report based in part on sworn testimony by four of Cepeda's friends who were walking with him at the time of the accident and who indicated that he was looking down at his phone and texting while crossing the highway where he was struck by the Sottilaros' car.

Under Section 316.066(5), Florida Statutes (2010), a "crash report made by a person involved in a crash and any statement made by such person to a law enforcement officer for the purpose of completing a crash report" cannot be used as evidence in a subsequent trial. Pursuant to this so-called "accident report privilege," the trial court ruled that Defendants' attorney could not use the traffic fatality investigation report to impeach the testimony of one of Cepeda's friends who witnessed the accident and gave a sworn statement to the police. After the ruling, the witness testified that he wasn't sure whether Cepeda was texting at the time of the accident. A Florida jury found Sottilaro 70 percent responsible for Cepeda's death and awarded the Estate $50,733.59 for past medical bills and $1.325 million for pain and suffering.

On appeal, the Second District agreed with Defendants that the trial court wrongly interpreted the accident report privilege in disallowing use of the investigation report for impeachment purposes. Citing the Fifth District's opinion in State v. Cino, the Court noted that the privilege is intended to "ensure that the state does not violate an individual's constitutional privilege against self-incrimination..." As a result, according to the Court, the privilege only applies to the owner, driver or occupant of a car involved in a accident.

In reaching this decision, the Court distinguished the case from Williams v. Scott, a 1963 Second District decision concerning the admissibility of a statement given to an investigating officer by a pedestrian who was struck by the defendant. While the statement was deemed inadmissable in that case, the Court found the ruling inapplicable in this case because while "motorists and pedestrians have reciprocal rights and responsibilities and are held to the same standard of care.... witnesses do not have those same rights and responsibilities." As a result, the Court reversed the jury decision and remanded the case for a new trial.

Continue reading "Court Limits Florida's Accident Report Privilege - Sottilaro v. Figueroa" »

In a recent post, we covered the Second District Court of Appeals' recent ruling in Jiminez v. Faccone as it applies to the presumption that the rear driver in a rear end collision is the sole proximate cause of the accident. Specifically, the Court overturned a lower court's summary judgment ruling that Defendant Ana Jiminez was the sole proximate cause of an accident that occurred when her car crashed into a stalled vehicle on a Collier County highway, finding that the question of whether the stalled car's flashers were illuminated at the time of the accident precluded a summary judgment ruling on liability. In the same opinion, the Court also considered whether Jiminez could argue that Defendants George and Rita Faccone had not established the requisite "threshold injury" to support their claim for non-economic "pain and suffering" damages.

Section 627.737(2), Florida Statutes provides that a plaintiff may not recover non-economic damages (covering pain, physical and emotional distress, disfigurement, etc.) from the registrant, operator or occupant of a car "which security has been provided as required by ss. 627.730-627.7405" unless the plaintiff claims one of the following injuries:

(a) Significant and permanent loss of an important bodily function; (b) Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement; (c) Significant and permanent scarring or disfigurement; [or] (d) Death.

The Court rejected Plaintiffs' argument that because Defendant was covered under an Illinois auto insurance policy at the time if the accident - she had recently moved from Illinois to Florida - she did not have the requisite security to raise the Section 627.737(2) threshold as a defense against Plaintiffs' claims for non-economic damages. Florida law requires all automobile insurance policies to carry a minimum amount of "no-fault" insurance for reasonable and necessary medical expenses in order to ensure that those injured in car accidents can seek proper medical care, regardless of who is at fault for the accident. After reviewing the Illinois policy, the Court found that its out of state coverage incorporated coverage under Florida's "no-fault" system and, as a result, Defendant was entitled to raise the threshold non-economic damages defense.

Accidents can have devastating consequences for the victim, as well as his or her family and friends. The physical and emotional pain and suffering, long hospital stays, medical expenses and significant time off from work can take a huge toll on everyone involved.

Continue reading "Recovering Non-Economic Damages in a Florida Car Accident Lawsuit - Jiminez v. Faccone" »

Rear end accidents are among the most common types of automobile collisions in the United States. In Jiminez v. Faccone, Florida's Second District Court of Appeal explains state law regarding the presumption of liability in a rear end collision.

Plaintiffs George and Rita Faccone sued Ana Jiminez for personal injuries the married couple alleged that they sustained in a car accident. On the night of the accident, the Faccone's 1986 Cadillac was stopped in the left lane of Highway 41 in Collier County where it had stalled. Three of the six people in the car tried to push it off the road, but were unable to do so. According to Mr. Faccone, he activated the emergency flasher lights when he got out of the car.

Defendant Jiminez was driving behind a van as it approached the Cadillac in the same lane. Apparently seeing the stalled car in the lane, the van abruptly swerved right. Jiminez, however, was unable to stop or swerve and her car collided with the Cadillac, injuring both Ms. Faccone - who was seated in the car with her seatbelt unbuckled - and Mr. Faccone, who was outside of the car at the time, but asserts that he was injured when his son pulled him out of the way of the oncoming car.

Before trial, the trial court granted Plaintiffs' two motions for summary judgment, ruling first that Jiminez was both negligent and the sole cause of the accident and second that Defendant was not entitled to argue that Plaintiffs had not established the requisite "threshold injury" to support their claim for non-economic "pain and suffering" damages.

On appeal, the Second District overturned both of these rulings. Florida law presumes that the rear driver in a rear end collision is the sole proximate cause of the accident and the driver must provide sufficient evidence in order to rebut this presumption, the Court explained. However, "the rule does not require the rear-car driver to eliminate every possible inference of negligence on his part in connection with the accident before he is entitled to have the jury decide the case." Rather, the rear driver must simply provide enough evidence to "fairly and reasonably" show that the presumption is misplaced. Such evidence includes: (1) an abrupt and arbitrary stop in a place where it could not reasonably be expected or an unexpected lane change; (2) a mechanical failure - sudden brake failure, for example - that causes the rear driver to collide with the lead driver; and (3) an illegally and, therefore, unexpectedly stopped lead vehicle.

Continue reading "Florida Court Explains Liability in Rear End Accidents - Jiminez v. Faccone" »

Choosing the appropriate venue is one of a number of issues that a person injured in a car accident should consider in deciding whether to file a lawsuit. In Robbins v. General Motors de Mexico, the District Court for the Middle District of Florida explains the rules for suing different parties in different courts in actions resulting from one car accident.

Connie Robbins filed suit as personal representative of the estate of Alyssa Drazen, who died from injuries sustained in a single car accident when the Chevrolet Suburban she was driving went out of control, struck a fence and rolled over. Ms. Drazen was wearing a seatbelt at the time of the accident, but the car's airbags did not deploy.

Defendant General Motors de Mexico (GM Mexico) manufactured the Suburban in Mexico before shipping it to Florida for sale. Robbins sued GM Mexico in federal district court in Florida, raising strict liability and negligence claims under the state's wrongful death statute. She also sued General Motors Corporation (GMC) and the car dealership where Drazen bought the Suburban in state court, raising virtually identical wrongful death claims as well as a breach of warranty claim against the dealership.

GM Mexico sought to dismiss the federal court action, alleging that Robbins engaged in impermissible "claim splitting" by filing identical claims against it and GMC in two different courts. In denying the motion, the court noted that "the rule against splitting causes of action makes it incumbent upon plaintiffs to raise all available claims involving the same circumstances in one action." Nevertheless, the court held that this rule does not apply to claims against different parties. "While Florida law may be silent on mutuality of parties, the federal claim splitting doctrine clearly requires identity of parties - and in particular identity of defendants," the court ruled, citing the Southern District of Florida's decision in Greene v. H & R Block Eastern Enterprises, Inc.

Because GM Mexico, GMC and the dealership are each separate and distinct entities, the court ruled that the prohibition on claim splitting did not apply in this case. Nevertheless, since the claims are virtually identical and arise out of the same accident, the court noted that issue preclusion - the legal principle that prevents a person from re-litigating an issue once a court decides on it - may eventually come into play.

Continue reading ""Claim Splitting" in Florida Car Accident Cases - Robbins v. General Motors de Mexico" »