South Florida Car Accident Law Blog

In Florida car accident cases, it's usually up to a jury to decide the facts, including whether or not either party was negligent in causing the crash, as well as the extent of any related injuries. In Duclos v. Richardson, the Fourth District Court of Appeal explains that a court must have a very good reason for removing this function from a jury.

Jeanette Richardson injured her neck in a May 2006 car accident with Michael Duclos. She sued Duclos for damages under Section 627.737(2), Florida Statutes. The law allows a person to recover for injuries caused by another's use of a motor vehicle and which are permanent "within a reasonable degree of medical probability."

Three expert witnesses testified at trial that Richardson's injury was permanent. Conversely, orthopedic surgeon Dr. Von Thron testified for the defense that the injury was not permanent. According to Von Thron, who examined Richardson and reviewed her medical files, Richardson's neck pain from the accident was temporary and any recent pain was the result of a separate condition: arthritis.

A jury returned a verdict awarding Richardson damages for her past medical expenses, but found that the injury was not permanent and therefore did not award her damages for future medical costs. The trial court, however, granted Richardson's motion for new trial and judgment notwithstanding the verdict (JNOV) on the issue of injury permanence. Specifically, the court ruled that Von Thron's testimony was "confusing, mistaken and not reasonable in light of all the other evidence in the case..." As a result, the court said that a verdict should be entered in Richardson's favor finding that her injury from the crash is permanent.

On appeal, the First District ruled that the trial court's directed verdict was not warranted. As the court explained, a JNOV should be entered only where a reasonable jury could reach a different decision based on the evidence. Where the evidence is conflicting, the matter should generally be left for a jury to decide. That said, the appeals court warned that "[e]ven if contrary expert evidence is presented, a directed verdict is justified where an expert's testimony is so equivocal, confusing, and internally contradictory and irreconcilable as utterly to lack any probative value," citing its 2006 ruling in Simmons-Russ v. Emko.

Continue reading "Court Says Jury Should Decide Whether Florida Car Accident Injury is Permanent - Duclos v. Richardson" »

In Ortiz v. Regalado, Florida's Second District Court of Appeal takes on an important car accident litigation issue: the liability of a car co-owner when the vehicle is involved in an accident while being driven by its other owner.

The case stemmed from a fatal car accident in which a vehicle driven by Andy collided with a car driven by Lourdes, killing one of three of Lourdes' children who were passengers in the car. Andy's father, D.C., shared with Andy title to the car involved in the accident. Lourdes and her husband filed a lawsuit, claiming that Andy was negligent in causing the accident and that D.C. was vicariously liable as joint owner of the car.

Following trial, a jury found that Andy and Lourdes were each 50 percent negligent. Under Florida's comparative negligence system, a person who is injured partly due to his or her own negligence can hold another party liable proportionately. As a result, the trial court ordered Andy and D.C. to pay half of the more than $1.4 million in damages awarded for Regalado and her children. The court also ordered Andy and D.C. to pay the entire amount of a $1 million award for past and future pain and suffering to Lourdes' husband, Misael.

On appeal, however, the Second District overturned the order to the extent it required Andy and D.C. to pay the entire amount of Misael's damages award. Section 768.31, Florida Statutes (2006) provides that when two or more persons are jointly liable for the same injury to a person and one of the liable parties pays more than his share, that party is entitled to pro rata contribution from the other. The appeals court remanded the case back to the trial court to consider the contribution issue.

The Court nevertheless rejected D.C.'s claim that, as a co-owner of the car who was not directly involved in the accident, he was entitled to a limitation of damages under section 324.021(9)(b)(3), Florida Statutes (2006). As the Court explained, the law "sets a limit on damages for which an owner of a vehicle is responsible when the owner loans the vehicle to another whose negligent operation of the vehicle results in damages to another." In this case, however, D.C. did not loan the car to Andy. Instead, Andy was lawfully driving the vehicle as its joint owner. "An owner of an object can only loan that object to another who has no legal right to the object," the Court observed.

Continue reading "Court Takes on Co-Owner Liability in Florida Car Accident Case - Ortiz v. Regalado" »

In Florida, "loss of consortium" is a legal injury parties in accident claims typically raise in relation to the effects of an accident on a couple's sex life. In Peterson v. Sun State International Trucks, however, the Fourth District Court of Appeal explains that consortium damages can be sought for any deterioration in a marriage caused by the effects of an accident, sexual or otherwise.

Lorie Peterson was injured in a car accident in Florida when the car she was driving was rear-ended by a truck driven by a Sun State employee. Peterson and her husband Clayton sued the company, alleging that Ms. Peterson suffered severe neck and back injuries as a result of the crash.

The Petersons also sought damages for "loss of consortium," which the Court explained is a theory under which the spouse of an injured person seeks redress for loss of "the companionship and fellowship of husband and wife and the right of each to the company, cooperation and aid of the other in every conjugal relation."

Following a trial, a jury awarded Ms. Peterson damages for past and future medical expenses as well as come noneconomic damages. It did not, however, award Mr. Peterson loss of consortium damages. The trial court later denied the Petersons' motion for new trial on the loss of consortium claim.

On appeal, the Second District reversed the trial court's decision, finding that the Petersons' provided uncontroverted evidence showing that the accident adversely affected their marital relationship. Both Mr. and Ms. Peterson testified at trial that Ms. Peterson's injuries and the resulting pain limited her ability to do the things she had previously enjoyed, including housework and traveling. They also testified that Ms. Peterson became ill-tempered and "short" with Mr. Peterson. Specifically, Ms. Peterson said "[i]t's affected me to the point where I've pulled away from him."

Continue reading "Loss of Consortium Damages in Florida Car Accident Cases - Peterson v. Sun State International Trucks" »

Legal liability in a Florida car accident case is not simply a matter of who's right and who's wrong, but also how the dispute is framed to a jury. In Costa v. Aberle, Florida's Fourth District Court of Appeal considers specific instructions given to the jury in a rear-end accident case.

Rosalva Costa was a passenger in a car that was rear-ended by a vehicle driven by Joseph Aberle. Costa alleged that she injured her neck and back as a result of the accident. She sought treatment from a chiropractor and, after the pain returned, underwent surgery - performed by Dr. Heldo Gomez, a neurosurgeon - which revealed that Costa was suffering from a "leaking disc." She underwent a second surgery and returned to the chiropractor when the pain continued.

Costa sued Aberle for money damages related to the back and neck injuries sustained in the accident. At trial, the defense presented testimony from a radiologist, an orthopedic surgeon and a neurologist, each of whom stated that the surgeries performed by Dr. Gomez following the accident were not related to the accident. During closing argument, Aberle's attorney asserted that the leaky disc was a result of Dr. Gomez's treatment, rather than the accident.

On Costa's request, the trial judge instructed the jury that the question of whether Costa's medical treatment was necessary should be viewed from her perspective and that any injury she incurred as a result of necessary treatment related to the accident should be considered as caused by Aberle's negligence. The jury found that Aberle was responsible for the injury and awarded Costa $78,132 for past medical expenses and $75,000 for future medical expenses.

Subsequently, however, the trial court granted the defense's motion for a new trial, in which it argued that instructions were not appropriate.

Continue reading "Court Upholds $150,000 Jury Award in Florida Rear-End Car Accident Case - Costa v. Aberle" »

So you were injured in a car accident. Then the injury was made worse by medical procedures intended to treat it. In Tucker v. Korpita, the Fourth District Court of Appeal explains that the person whose negligence caused the accident is on the hook for both the original injury and any later aggravation of it.

In 2007, Andrew Korpita and Earleen Tucker were involved in a West Palm Beach car accident in which Korpita rear-ended Tucker. Korpita admitted that he was negligent and a trial was held on the issues of causation and damages.

At trial, two doctors testified about treating Tucker for neck and back injuries following the accident. One, Dr. Robert Simon, testified that he performed a minimally invasive percutaneous discectomy on Tucker, which reduced the effects of her impairment. Another, Dr. Jane Bistline, testified that she performed a lumbar discogram and epidural steroid injections on Tucker. Dr. Bistline found that Tucker suffered from three bulging discs, an impairment she believed to be permanent.

Korpita's personal representative also called a number of doctors to testify, including Drs. Jordan Grabel and Robert Kagan, expert witnesses who testified that the discectomy performed on Korpita by Dr. Simon was not necessary because the procedure is designed to treat people who suffer from a herniated disc. In Dr. Grabel's opinion, Korpita's injury was the result of spondylolisthesis in the lower lumbar spine, a preexisting condition that was not made worse as a result of the accident. Dr. Kagan, meanwhile, concluded that Korpita suffers from a "pseudo herniation" and that the discectomy could have accelerated the effects of the impairment.

At a conference near the close of the trial, Tucker asked the court to instruct the jury that when a person is injured in a car accident as a result of another person's negligence and the resulting injuries are later aggravated by negligent medical care, the negligent driver is considered the proximate cause of both the original injury and any aggravation. The trial court denied this request. The jury found that Tucker was not permanently injured as a result of the accident, but returned a $17,700 verdict in his favor for medical expenses and lost wages.

On appeal, the Fourth District ruled that the trial court should have issued the "intervening cause" instruction to the jury as Tucker requested. The court explained that in Stuart v. Hertz Corp., the Florida Supreme Court held 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.

Continue reading "Court Says Negligent Driver Responsible for Injuries Caused by Accident and Later Medical Treatment - Tucker v. Korpita" »

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 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.

Regarding the necessary security, Section 627.733(1), Florida Statutes states that every vehicle required to be registered in the state must have security in the form of an insurance policy or other authorized method.

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" »