Miami Personal Injury Attorney Blog

Hit by a Car on Miami Beach

June 2, 2012 | Wolfson & Leon

Recently, we closed a case involving a lovely woman, our client, who was hit by a car on Miami Beach. She was crossing Pine Tree Drive and headed West on 41st Street (also known as Arthur Godfrey Road). The Northbound light on Pine Tree Drive was red. And our client entered the crosswalk with a “walk” signal. But a driver of an SUV (not a small car) took his foot off the brake and knocked her down. She was in the crosswalk when this happened. In our experience, Plaintiffs in pedestrian knockdown cases who are walking or standing and are hit by a moving car have the edge in court and negotiations. Drivers are called upon to look out for pedestrians. In fact, Florida Statute 316 places a heavy burden on drivers to keep a lookout for pedestrians or any person walking at or near a roadway. While a Plaintiff who was in a crosswalk and is hit by a car has a better case, it isn’t absolutely necessary to show you were in the crosswalk at the time the vehicle collided with your body.

Florida Statute 316.130 states that, notwithstanding a pedestrian’s duty to obey a series of laws, “every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian or any person propelling a human-powered vehicle and give warning when necessary and exercise proper precaution upon observing any child or any obviously confused or incapacitated person.” However, pedestrians do have to follow the law and jaywalking in Florida is illegal. You can get a ticket for it. And, at a trial on a civil case, if you violate a jaywalking law, it may be used to say you were partially at fault or “comparatively” negligent in causing the accident. This doesn’t mean you can’t recover. Only that your recovery will be reduced by the amount or degree to which a jury finds you were negligent or “comparatively” negligent or at fault or wrong.

For example, one jaywalking law prevents a pedestrian from crossing a street at anything other than the shortest angle or a right angle. Another prohibits you from walking on a street shoulder if there is a sidewalk. To see the complete jaywalking laws, click on the following link: http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0300-0399/0316/Sections/0316.130.html.

Hurt on the Job – Can You Get More than Just Worker’s Compensation Coverage?

May 28, 2012 | Wolfson & Leon

In Florida, if you get hurt on the job, you can seek medical expenses and lost wages / earnings through your employer’s worker’s compensation insurance. The law requires all employers who are not very small companies to carry the insurance coverage that would pay only for your medical bills and lost earnings up to what is called a “maximum weekly wage” set forth by Statute. Otherwise, your boss / employer is immune from suit and protected and cannot be sued for other damage like pain and suffering, future medical needs, mental anguish, loss of capacity to enjoy life, etc.

But, under some circumstances, you can still sue your boss for pain and suffering, future medical needs, mental anguish, loss of capacity to enjoy life, etc. But when does that happen?

Florida law says you can sue your boss/employer for personal injuries (pain and suffering, future medical needs, mental anguish, loss of capacity to enjoy life, etc) when he, she, or it acts intentionally or in a way that is virtually certain to cause death or great bodily harm. Take a look at the actual statute by clicking this link: www.flsenate.gov/Laws/Statutes/2011/440.11.

Government in Florida Must Hand over Copies or Pay Attorney’s Fees

May 26, 2012 | Wolfson & Leon

If we take your case, investigation will be a big part of finding out what happened. Getting the evidence we need to prevail in a slip and fall, trip and fall, medical malpractice, or car accident case is important.

One way we do so is to utilize public records law. Your case may involve getting records from a government department at a city, county, or state agency. The records could be reports of prior accidents, an employee file, building department records, or any other government record. Florida Law says we can get them. In fact, Florida Statute 119.01 provides that “it is the policy of this state that all state, county, and municipal records are open for personal inspection and copying by any person. Providing access to public records is a duty of each agency.” If you want to see Statute 119, click on this link: www.flsenate.gov/Laws/Statutes/2011/Chapter119.

If the government department who the records are requested from doesn’t hand them over, we may be able to get attorney’s fees if we have to sue to obtain the records.

Defendant No-Show Testifies by Paper

May 15, 2012 | Wolfson & Leon

If you are in a car accident, slip and fall, or are injured in any other accident and your case goes to trial in Miami-Dade, Broward, or Palm Beach, we will want to cross-examine the Defendant at trial. But what if he or she didn’t show up? While it may seem odd, it happens. A Defendant may have an insurance company who they drop their case on. They may have a family emergency. They may have a commitment to a higher authority such as military, government, or otherwise. Or, they may just try to duck the whole thing. So, what happens if the Defendant doesn’t come to trial?

As long as it is not a self-procured failure to attend and the Defendant is more than 100 miles away, the Trial Court has the discretion to allow the Defendant’s lawyer to read his or her client’s deposition to the jury. That means that, as long as the Defendant didn’t purposely cause his or her absence or not being there, then the Court could let the Defendant’s lawyer read his or her deposition at trial.

That’s what happened in the case of Hutchings v. Liles, 2012 Okaloosa County. In that case, the defense counsel provided an affidavit showing his failed efforts to find the defendant for several weeks before trial and asserted that the Defendant had taken a job out of state with a federal military agency. Defendant had told her lawyer that she didn’t know whether she would be able to contact her attorney while on assignment. Her lawyer had been unable to obtain any information from her boss about where Defendant was located. Being called away for a valid reason was enough to establish the Defendant Deponent’s absence was not self-procured.

Rear Ended Vehicle Usually Wins Liability / Fault Issue

May 15, 2012 | Wolfson & Leon

Every case has two parts: liability and damages. And, to win your case before a jury, you have to prove both by the greater weight of the evidence. In fact, if you cannot show liability, the jury does not even consider damages. Your Miami Car Accident Lawyer explains:

The practical impact of this is that, if a case is being negotiated before a lawsuit has been filed, an adjuster will look to both parts in order to evaluate it. Likewise, if a case has been filed at the courthouse, the lawyer for the defendant will evaluate both liability and damages in order to report to his client what he, she, or it is facing.

Now, in a car accident case, rear end collisions are usually the fault of the rear-vehicle. In fact, once a case gets to trial, there is what is called a “rebuttable presumption” that the person who did the rear-ending in the car accident is at fault, or wrong. This means that the person who rear-ended you is presumed to be in the wrong. He or she can “rebut” or refute that presumption by showing one of four things. To avoid getting a directed verdict at trial on whose fault the accident was, the defendant would have to show (1) that there was something mechanically wrong with his or her car; (2) that the lead driver made a sudden stop; (3) the lead driver made a sudden lane change; or (4) that the lead driver made an illegal or improper stop. Dept. Highway Safety v. Saleme, 963 So. 2d 969 (Fla. 3rd DCA 2007). With regard to the sudden stop exception, a sudden stop, alone, is insufficient. Clampit v. Spencer, 786 So. 2d 570 (Fla. 2001). Rather, for this exception to kick in, “the lead driver’s stop must occur “at a time and place where it could not reasonably be expected by the following driver”. Pierce v. Progressive, 582 So. 2d 712 (Fla. 5th DCA 1991).

Choice of Law — First Party Uninsured Motorist — State of Contract Formation

May 11, 2012 | Wolfson & Leon

Uninsured Motorist cases are founded in contract law. Uninsured Motorist cases are lawsuits against a person’s own insurance company to recover those damages caused by someone who did not have insurance or who did not have enough insurance. Usually, it is as a result of a car accident. But Uninsured Motorist cases can arise out of being injured as a passenger, pedestrian, or even being a bicycle rider!

When an insurer does not settle an Uninsured Motorist case and a Plaintiff sues and gets more than the coverage limits, the Plaintiff can recover the excess judgment if his or her lawyer can show certain factors and perfects the claim. First, such an effort to recover the excess judgment is called a “bad faith” claim. Next, if the bad faith claim is against one’s own insurance company, it is called a “first party” bad faith claim. Such a “first party” bad faith claim has to be perfected by filing a civil remedy notice under Florida Statute 624.155. You can see that law by clicking on this link: http://www.flsenate.gov/Laws/Statutes/2011/624.155. Anyhow, if a Plaintiff gets an excess judgment and can show bad faith and that they complied with Florida Statute 624.155, he or she might be able to get even more money than the policy of insurance they paid for.

On March 30, 2012, the 5th District Court of Appeals ruled in a bad faith first party case. The case was Higgins v. West Bend Mutual Insurance Company. The Higgins were from Minnesota and their insurance policy, a contract, was entered into in Minnesota. They got into an accident while vacationing in Orlando. The Higgins recovered $100,000.00 from the person who caused the accident, or the “third party”. Then, they presented their case to their own insurance company for underinsured motorist coverage. They had $100,000.00 in uninsured motorist coverage. Their own insurance company refused to pay that. So they went to trial. And they won a $260,000.00 verdict. The court ordered West Bend Insurance Company pay their $100,000.00 limits, which they did.

Recoveries Against your Own Insurance Companies

April 11, 2012 | Wolfson & Leon

Our firm represents people against their own insurance companies to get benefits that the insurance company has refused or failed to pay. It doesn’t matter if it is health insurance, car insurance, homeowners insurance, disability insurance, or any other type of insurance. If your company doesn’t pay something that they should have, we will fight for you to get the compensation you deserve. And you don’t have to pay us or forward costs.

We take these cases on a “contingency” arrangement. We can do this because there is a Florida Law that says that if you beat an insurance company in court, they have to pay your attorney’s fees and costs under Florida Statute 627.428(1). These cases against your own insurance company are called “first party” cases.

On March 22, 2012, the First District Court of Appeal filed an opinion in a case involving FIGA. FIGA is the Florida Insurance Guaranty Association. They take over insurance companies that have failed or are on the verge of failing. FIGA is funded through industry assessments that are capped at 2% of a company’s net premiums and an additional 2% to cover insolvencies created by hurricanes, etc. If your company goes belly up, FIGA will stand in its shoes and pay your claims to a limit. The limit is generally $300,000.00. An additional $200,000.00 can be available under certain circumstances. And in condominiums, the limit is $100,000.00 per unit. For detailed explanation of what happens if your insurance company goes under, click on the following link: http://www.figafacts.com/faq.