South Florida Car Accident Law Blog

6/12In Poston v. Wiggins, Florida's First District Court of Appeals ruled that a couple suing for injuries sustained in a car accident is entitled to get the other driver's pharmacy records for the year leading up to the crash.

Mr. and Mrs. Wiggins were involved in a car accident with Mrs. Poston while Poston was backing out of a parking space. The couple sued Poston for negligence. In an answer to the Wiggins' complaint, Poston denied liability. She also said that she was not injured in the accident and provided information about her prescription medication use in the 12 hours prior to the crash. Prior to trial, however, Poston testified in a deposition that her osteoarthritis had gotten worse since the accident and provided additional information about her prescription medication usage.

The Wiggins' later sought to obtain Poston's pharmacy records for the year leading up to the accident as well as medical records from her treating physician from the date of the accident going forward. They claimed that Poston had given contradicting information about her medication use and seemed to indicate in the deposition that the osteoarthritis had been made worse as a result of the accident.

Poston resisted the discovery requests, claiming that the information sought was irrelevant because she had not filed a counterclaim against the couple and did not allege that she suffered bodily injury in the accident. Citing "the existence of inconsistencies," however, a trial court found that the Wiggins' were entitled to the information and documentation requested.

On appeal, the First District agreed that Poston was required to divulge the pharmacy medication information. "In the instant case, the pre-accident pharmacy records appear to be relevant to the issue of negligence in the case and are potentially discoverable," the court explained. Meanwhile, the court said that any harm to Poston's privacy interests posed by turning over the records was "premature and speculative."

Continue reading "Florida Court Rules on Medication Records Access in Car Accident Case - Poston v. Wiggins" »

In Smith v. Llamas, the Second District Court of Appeal took on an important issue in Florida car accident cases - whether a party's injuries are temporary or permanent - and explained that it should usually be decided by a jury.

Llamas was injured in an April 2008 car accident when his car collided with a vehicle driven by Smith. Smith was traveling eastbound and attempted to make a left turn while Llamas was traveling westbound when the crash occurred. Llamas sued Smith for negligence, alleging that he suffered knee and neck injuries in the accident, which he said was caused by Smith's negligence. Smith argued that she was not completely responsible for the accident pursuant to Florida's comparative negligence standard, allowing liability to be determined proportionately based on each party's share of the blame.

At the close of trial, a jury found that Smith was solely liable for the accident and awarded Llamas just under $40,000 in damages. The entire amount was for past medical expenses. The jury did not award any damages for future expenses, finding that Llamas' injuries were not permanent, nor for pain and suffering.

The trial court later granted Llamas' request for a new trial, in which he claimed that the evidence indisputably showed that he sustained injuries that were both permanent and related to the crash. The Second District reversed the decision on appeal, however, finding that the trial court abused its discretion by disrupting the jury verdict.

In order for a verdict to be so unjust to warrant a new trial, "the evidence must be clear, obvious, and indisputable," the court explained, citing its 2004 decision in Harlan Bakeries v. Snow. "[W]here there is conflicting evidence, the weight to be given that evidence is within the province of the jury."

Continue reading "Damages in Florida Car Accident Cases Depend on Whether Injuries Are Permanent - Smith v. Llamas" »

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 Casteel v. Maddalena, Florida's Second District Court of Appeal explains that in order for a party to a car accident lawsuit to get a new trial based on fraud, he or she must show that the other party actually participated in or approved of the fraud. When relying on new evidence to support a retrial motion, the party must show that he or she couldn't have gotten their hands on the new evidence any sooner.

John Casteel was injured in an accident while riding a motorcycle when he was hit by a car driven by Anna Maddalena. According to Casteel, he stopped at a stop sign seeking to make a left turn onto a highway. He then proceeded to cross the road's northbound lanes and stopped the bike at the median, attempting to complete the left turn when Maddalena's car hit him.

Maddalena, conversely, said that Casteel was not in the median and instead remained in her lane when the accident occurred. She further claimed that she hit the brakes as well as the car's horn when she saw that Casteel was in the way and that Casteel was still moving as the car collided with him.

Following trial, a jury determined that Casteel was 55 percent liable for the accident and Maddalena was 45 percent liable. The trial centered on the location of the accident, and, as the court explained, "the issue of whether Maddalena skidded to a stop on impact became the main focus." Maddalena argued that she did not skid and that skid marks shown in a photo of the scene were not made by her car.

Melanie Lopez, Casteel's girlfriend, testified that she saw the skid marks when she arrived at the scene shortly after the accident and that she later returned to photograph them. Lopez lived very close to the scene and further testified that she personally knew that the road had been paved just a day earlier. Lopez was expected to testify about damages - specifically Casteel's health before the accident - rather than liability, and her testimony apparently caught Maddalena by surprise. Maddalena's attorney later investigated the matter, finding that the road had actually been paved somewhere between 10 days and three weeks prior to the accident.

Continue reading "Fraud and Newly Discovered Evidence in Florida Car Accident Cases - Casteel v. Maddalena" »

A person who is injured in a car accident not only has the right to an attorney, but also the right to seek legal counsel right away. As the Fourth District Court of Appeal explains in Howard v. Palmer, the timing in which a person obtains a lawyer after a crash cannot be used to try to undermine his claims at trial.

Howard was injured in a car accident that occurred after Palmer ran a stop sign. Palmer was an employee of Groupware International, Inc. and was on the job at the time. Howard sued Palmer and Groupware for negligence.

Prior to trial, Howard filed a motion in limine seeking to prevent defense counsel from introducing evidence related to or referencing the fact that Howard obtained a lawyer on the day of the accident, prior to even seeking medical treatment. In arguing the motion, the defense asserted that the evidence called into question whether Howard suffered permanent injury. If the injury were so serious, he would have gone directly to a doctor, the argument went.

Although the trial court granted Howard's motion, defense counsel proceeded to ask one of Howard's doctors during cross examination whether he was aware that Howard had contacted an attorney prior to seeking treatment. The trial judge sustained Howard's objection, admonished defense counsel and instructed the jury as follows: "When Howard hired a lawyer is not a subject for your consideration. You are to disregard that question." The trial court denied Howard's motion for a mistrial based on this issue.

The jury eventually returned a verdict in Howard's favor, but awarded him only about half of the damages he was seeking.

Continue reading "Court Defends Right to Lawyer in Florida Car Accident Cases - Howard v. Palmer" »

Accidents can happen at any time and in any place. Yet, some activities are so "inherently dangerous" that they're more likely to result in an injury. In Smyth v. Infrastructure Corp. of America, Florida's Second District Court of Appeal explains the law as it applies to these activities.

Edward Smyth died in a Florida car accident on I-75 outside of Riverview. Smyth was driving in the left lane at around 9:00 p.m. when a car in front of him slammed the brakes. Smyth's car veered into the right lane, where it collided with a tank truck carrying fuel. His car became trapped under the truck as the tank caught fire and Smyth was killed in the blaze.

According to a state trooper who was driving nearby, the lead car hit the brakes because a large lawn mower was traveling at about 25 miles an hour in front of it. Meanwhile, the Court explained that further investigation showed that the car behind Smyth's slammed into the back left side of Smyth's car, propelling it into the other lane where the car collided with the truck.

Smyth's wife, Kay, sued Infrastructure Corporation of America and the Florida Department of Transportation for wrongful death. She claimed that the lawn mower was owned by Titan Lawn Service, a company acting as an unauthorized subcontractor for ICA, which had been hired by DOT to cut the grass adjacent to the road. Kay also sued the driver of the car behind her husband's, a claim that was later settled.

A trial court granted summary judgment to the defendants, apparently finding that any duty that ICA and DOT owed to Smyth had been delegated to Titan, the responsible party. The Second District disagreed, however, finding that the evidence in the record was not sufficient to support this decision.

Continue reading "Court Says Fatal Lawn Mower Accident on Highway May Have Involved 'Inherently Dangerous Activity' - Smyth v. Infrastructure Corp. of America " »

Anyone who has driven in Florida knows that car accidents can and do happen. Often, the injuries caused by an accident are the result of negligence by more than one driver. In Lenhart v. Basora, Florida's Fourth District Court of Appeal explains the state's "comparative negligence" system for apportioning liability in car accident cases where multiple people may be at fault.

Abby Chronister was injured in an accident when the scooter on which she was riding as a passenger was hit by a car driven by Christopher Basora. The scooter had been traveling in the right lane of the street and was struck when Basora changed into the same lane. Chronister, who was not wearing a helmet, suffered permanent brain injury as a result of the crash.

Mary Lenhart, Chronister's mother, filed suit against Basora seeking damages on her daughter's behalf. Basora admitted that he was at fault in the accident, but argued that his liability should be reduced by Chronister's comparative negligence for riding without a helmet. Under Florida's comparative liability system, a person at fault in an accident may have his liability reduced proportionately if the injured person was also negligent.

Prior to trial, the trial court granted Basora's motion seeking to bar Lenhart from presenting certain evidence regarding his negligence. Specifically, this evidence showed that Basora did not have a driver's license, had driven a car only once before the accident, may not have been wearing his glasses and had not taken prescribed depression medication at the time of the crash. The Court agreed that this evidence was not relevant because Basora had admitted that he was negligent in causing the accident.

Following trial, a jury found that Basora was 33 percent responsible for Chronister's damages - which totaled more than $11 million dollars - while Chronister was responsible for the remaining 67 percent.

Continue reading "Comparative Negligence Evidence in Florida Car Accident Cases - Lenhart v. Basora" »

In Brown v. Montanez, the Fourth District Court of Appeal explains the psychotherapist-patient privilege and how it came into play in a South Florida car accident case in which one driver was allegedly on drugs at the time of the crash.

Plaintiff Nya Montanez's infant daughter, Yanely Gonzalez, was killed in a Florida car accident when a car driven by Jason Brown collided with the minivan Montanez was driving. Brown was later convicted for DUI as a result of the accident.

Montanez filed suit against Brown and his parents, the owners of the car he was driving, alleging that Brown's negligence caused the crash. Specifically, Plaintiff alleged that Brown was "on a crack cocaine binge at the time of the accident, and his parents knew that he had had a severe problem with substance abuse and had a very poor driving record," according to the court.

Before trial, Montanez's lawyers served a subpoena duces tecum on the Delray Recovery Center, where Brown was treated while awaiting trial on the DUI charges. Although Defendants objected, arguing that the production of the Center's file on Brown would violate the psychotherapist-patient privilege, the trial court ordered that the file be produced.

On appeal, the Fourth District quashed the trial court's order, finding that production of the Center's file was protected by the psychotherapist-patient privilege. The court explained that Section 90.503, Florida Statutes "protects the confidential communications between the patient and the psychotherapist and the records of mental health treatment from disclosure to third parties." That specifically includes communications and records related to the patient's drug and alcohol addiction. The privilege includes both doctors and other treatment personnel and facilities.

Continue reading "Court Rules Car Accident Plaintiff Cannot Get Records on Driver's Post-Accident Substance Abuse Treatment - Brown v. Montanez" »

Florida car accident lawsuits are often won or lost based on witness testimony, including that of both the drivers in the accident and others who saw it happen. In Hutchings v. Liles, the First District Court of Appeals considered a case in which one important witness - the driver accused of negligence - was nowhere to be found.

Plaintiff Tara Hutchings was injured in a car accident involving a vehicle driven by Patricia Liles. Hutchings filed a personal injury suit in circuit court alleging that the accident was caused by Liles' negligence.

Prior to trial, Defendant's counsel informed the court that he was having trouble locating his client, who had told counsel that she was taking a temporary job in Oklahoma. As a result, counsel sought to introduce his client's testimony in an earlier deposition in place of her appearing as a witness at trial. Rule 1.330, Florida Rules of Civil Procedure allows a party to use a witness deposition in lieu of live testimony under certain circumstances, including when the witness is dead or unable to attend because of age, illness, infirmity or imprisonment. Deposition testimony can also be used under the rule where a court finds "that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition."

Plaintiff objected, and raised the objection again after the trial began, arguing that Defendant's counsel failed to sufficiently establish that Defendant was out of the state or at least 100 miles away. Counsel simply did not know where his client was, according to Plaintiff, and he could not prove that she was out of area. Furthermore, even if counsel were to prove that Defendant was in Oklahoma, Plaintiff argued that he would nevertheless be prevented from using the deposition testimony because Defendant's voluntary acceptance of a job assignment constituted an absence procured by the defense.

The trial court rejected Plaintiff's argument, ruling that counsel could introduce Defendant's testimony because he provided sufficient evidence to show that she was at least 100 miles away and that she had not procured her own absence. The trial proceeded and the jury returned a verdict finding that Defendant was not negligent in the accident.

Continue reading "Florida Court Allows Car Accident Case to Proceed Without Defendant - Hutchings v. Liles" »

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" »

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" »

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" »

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" »