By Bill Galione
When an accident victim goes to trial, he has to prove that his injuries are directly related to the accident at issue. Recently, a Florida appellate court has made it easier for an insurance company to dispute that a plaintiff’s injuries are related to an accident, even when the insurer has already acknowledged that the injuries were related to the accident.
Each year 17,000 people are the victims of drunk-driving accidents. Someone is killed every 45 minutes and someone is injured every two minutes. Each year there are 900,000 DUI/DWI arrests or which approximately one-third are from repeat offenders. 38% of all Christmas-time car accident deaths and 54% of all New Year’s car accident deaths are alcohol-related. In the United States, drunk driving is the leading criminal cause of death. Drunk-driving collectively costs us $114.3 billion per year.
Our firm, myself as well as all other trial attorneys relish the opportunity to represent victims of drunk-driving accidents. Collectively we are saddened by the grief that can be caused by such an irresponsible act, but we know that generally the potential recovery is greater than in other personal injury claims. Under Florida law, in addition to compensation for economic losses and non-economic losses such as pain and suffering, the victim of a drunk-driving accident may also be entitled to punitive damages. In the case of Ingram v. Pettit (340 So. 2d 922 (Fla. 1976)), a plaintiff had been injured when the defendant hit her vehicle from the rear while it was standing at an intersection in a well-lit area. The evidence demonstrated that the defendant’s vehicle had not been moving at an excessive rate of speed, had not swerved or veered outside the marked lines of traffic, and had in fact been normally operated until the time of the collision. The plaintiff sought punitive damages solely because the driver’s blood alcohol level exceeded the level at which the legal presumption of intoxication arises. The Florida Supreme Court held that the voluntary act of driving while intoxicated evidences a sufficiently reckless attitude for a jury to be asked to provide an award of punitive damages.
Your personal injury claim may be won or lost based upon the preservation of critical evidence to your case. With the advent of pocket-sized digital cameras and cell phone cameras, preserving accident evidence has never been easier.
If you have been involved in a car accident and are physically able to do so, it is tremendously helpful to already have photographs of all vehicles involved in the collision from the crash scene when meeting with your personal injury lawyer for the first time. Don’t be shy about taking photos. Don’t just take one or two photos, but instead take as many as possible. When taking photos of the vehicles involved, it is beneficial to take photos at different angles and distances. In addition, photos identifying the road conditions at the time of this incident, skid marks, and debris in the road are valuable to your case because they can help prove which driver or drivers were at fault for the crash, and will also help to show the extent of the force that not only your vehicle sustained- but that you sustained as well. While our office will certainly take property damage and injury photos upon our representation, photos taken at the scene immediately after the incident will preserve a great deal of evidence.
Florida’s Wrongful Death Act 768.18 limits recovery for wrongful death to “Survivors” which is strictly limited to the following: the decedent’s lawful spouse, children, parents, and when wholly dependent on the decedent for support or services, any blood relatives and adoptive sisters and brothers. It includes the child born out of wedlock of the mother, but not a child born out of wedlock of the father unless the father has recognized a responsibility for the child’s support. If a legal “survivor” exists there are very few limitations to the recovery of damages for personal injury where the decedent died as a result of the tortfeasor’s wrongful act.
On the other hand, if there are no legal “survivors” as defined above, the action is limited to the medical bills and funeral expenses of the decedent. Florida Statute 46.021 provides an odd exception to this limitation. Where the death did not ultimately result from the personal injury caused by the tortfeasor, a claim for pain and suffering and other damages may continue. An example of such a situation is where a plaintiff suffers personal injury as a result of a car accident or fall, but the plaintiff later dies from an intervening cause, such as the negligence of another unrelated defendant. This scenario necessarily poses questions of foreseeability and proximate cause, in addition to the question of what caused the decedent’s death since more than one party may be negligent and one of the negligent parties may not be liable for all the damages suffered by a claimant when some separate force or action is the active and efficient intervening cause, sole proximate cause, or independent cause of the claimant’s injuries and/or death. This is generally a question of fact for the jury when a jury trial has been demanded.
If you have ever had to file or defend a lawsuit as an individual or as a small business owner, you may recall the stress and anxiety that can be associated with the process. Litigation isn’t generally fun for the parties involved and in today’s economy, the assessment of resources required to prosecute or defend a case versus the expected outcome should be a critical discussion point.
If you have just become a party to a lawsuit, early, strategic planning between you and your attorney can go a long way to alleviate anxiety because you will have developed a plan based on the outcomes you wish to pursue because they are valuable to you. More specifically, you will have a clear assessment of the road ahead and feel more in control of the process.
The Florida Supreme Court says, yes, unless there is a good reason not to. In a recent decision, Howard B. Wald, Jr. v. Athena F. Grainger, 36 Fla. L. Weekly S211b (Fla. 2011), the Court analyzed the trial of Howard B. Wald, Jr.. Mr Wald was seriously injured in an accident on September 12, 1999. His doctor testified that he injured his neck, back, right arm, foot, and thigh. As a part of the litigation process, the defendant and his insurer sent Mr. Wald to a doctor of their choice. The defendant doctor testified that Mr. Wald was injured in the accident, but he believed that only the thigh injury was permanent.
Based on the nature of his injuries, Mr. Wald was asking the jury to award a fair and reasonable amount for all of the pain and suffering that he endured, due to the accident and his related injuries. Under the law, Mr. Wald is only entitled to pain and suffering damages if his injury is permanent.
B/I is short for Bodily Injury coverage. Put simply, Bodily Injury coverage provides insurance coverage for accidents that are your fault. Even a safe driver can cause a motion vehicle accident. If you have Bodily Injury coverage, you have insurance that will cover the costs of the injuries that the motor vehicle accident causes to others.
The State of Florida does not require Florida drivers to have Bodily Injury coverage. People may be tempted not to purchase this coverage; because they cannot afford it and/or they mistakenly believe that there are no consequences for not having Bodily Injury coverage. Just because you do not have Bodily Injury coverage does not mean that you will not be sued for injuries. If you cause an accident and do not have Bodily Injury coverage, the person that you injured and/or the injured person’s Uninsured Motorist carrier may still obtain a judgment against you. You will be personally responsible for paying this judgment.
Most people that have come to me have already made a decision that they think they should be compensated for their injury. However, they may not be sure the law provides a way for them to recover.
First, know that most claims are settled without a lawsuit being filed and the person who caused the injury pays nothing. The settlement money usually comes from an insurance policy they have purchased to protect themselves for such mistakes. When you first go to a lawyer, one of the first things the lawyer will do will be to establish whether there is insurance coverage. If there is not, you will likely be discharged and the lawyer will no longer represent you.
When you have been injured through the fault of another you have the right to recover for your injuries. Whether you fell because the other person or company did not properly maintain or clean their floor, or because they ran a red light, if they injure you as a result, they are responsible to pay you for the losses you have as a result. In particular, you can recover past and future medical bills, past and future lost wages, and money for the past and future loss of the enjoyment of life (pain and suffering).
Lack of sleep can cause cognitive impairment and negatively impact your ability to safely operate a motor-vehicle. Sleep deprivation is a major source of motor vehicle accidents. Studies have shown that sleep deprivation can impair the human brain as much as the consumption of alcohol.
According to the United States Department of Transportation, 23% of adults have admitted to falling asleep while driving. Furthermore, male drivers admit to falling asleep behind the wheel twice as much as female drivers.
The National Highway Traffic Safety Administration lists sleep-deprived driving as a factor in more than 100,000 crashes, resulting in 1,550 deaths and 40,000 injuries annually.
As a parent of three children, I am often presented with liability waivers which a business requires me to sign before my child can participate in an activity. These businesses have included indoor rock-climbing, go-cart tracks, and laser tag facilities. Many of you are faced with the same situation of either signing the liability waiver or having your child not participate in the activity. This leads to a logical question; do these liability waivers prevent me from suing a business whose negligence injures my child? As is the case with most legal questions, the answer depends heavily on the facts.
Take for instance the 2008 Florida Supreme Court case of Kirton v. Fields. The facts in this case involved a parent signing a liability waiver on behalf of his minor child before the child was permitted to ride an all terrain vehicle (“ATV”) in a commercially owned and operated motor sports park. The child lost control of the vehicle and was killed when the ATV landed on top of him. The personal representative of the child’s estate brought a wrongful death lawsuit against the owners and operators of the for-profit motor sports park. The lawyers for the park relied on the liability waiver as a complete defense to the claim and the trial court judge agreed and dismissed the claim. The case ended up in front of the Florida Supreme Court. The Supreme Court decided that the liability waiver was not effective to release the claim on these facts. In reaching this decision, the Court reasoned that the Florida legislature had not enacted any law which addressed this situation, and that under these circumstances and as a matter of public policy, the father could not preemptively waive the minor’s property interest in a lawsuit for personal injuries suffered due to the negligence of the park.
