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The Florida Highway Patrol reports that in the last three years, the number of distracted driving accidents in Florida has shot up by 25 percent.yellowschoolbus

Part of this has to do with the ever-expanding access to smart phones and people’s unwillingness to put them down while driving.

As the school year is slated to begin soon, there is special concern that this will translate to children in jeopardy. Whether they are walking, biking, being driven or driving themselves, students are going to be at high risk for distraction-related crashes during their morning and afternoon commutes. Continue reading →

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An appeals court in California has ordered reconsideration of a dismissal order in lawsuits filed by 26 plaintiffs who were injured or lost family members in a motor coach accident involving a French tourist company. gaveljan

The crash happened in the spring of 2009 after the driver, an American, reportedly made an unsafe turn and struck a guardrail, resulting in the vehicle overturning. No other vehicles were involved, and authorities said whether and road conditions weren’t a factor. More than likely, according to the state highway patrol, the driver had been extremely fatigued. It was a 2,000-mile trip, and plaintiffs allege he wasn’t fit to make it.

He’d been seen dozing by passengers a number of times along the trip, and he had even missed several exits leading up to the crash. Four years earlier, while driving a similar bus in Nevada, he struck an elderly woman whom he said he never saw. He was later convicted of a misdemeanor for that offense.

Plaintiffs later filed a flurry of lawsuits against numerous defendants, including:

  • The charter bus company that provided transportation for the group
  • The bus driver’s estate (the 69-year-old was one of those who perished in the crash)
  • The French tour operator
  • The Canadian tour operator

Continue reading →

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Florida’s dram shop law, codified in F.S. 768.125, allows for licensed establishments to face civil liability when they irresponsibly and knowingly serve alcohol to someone who is underage or known to be habitually addicted to alcohol, and that person in turn kills someone in a DUI accident.keys1

This was the basis for the case of Wilde v. Okechobee Aerie, recently before the Okechobee County Circuit Court.

A six-member jury decided the local Eagles Aerie club was negligent in allowing a member to leave the club drunk on the day in question. He’d been drinking for approximately nine straight hours there before he got into his vehicle and left. Continue reading →

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Motor coaches across the country take an estimated 700 million trips annually, most of those in the summer months. In Florida, it’s more of a year-round thing, as the winter weather is often more forgiving. busdriver2

But these vehicles – particularly commercial tour buses – have been known to cause devastating, high-profile accidents with severe injuries and multiple deaths.

Now, the U.S. Senate is preparing to debate a bill that would remove from public scrutiny key safety rating information regarding motor coach carriers. It’s part of a larger highway bill, with the secrecy provision largely divided along party lines. Democrats are vowing to remove the secrecy provision, arguing the public has a right to know whether a carrier is safe. Republicans argue the current rating system is inaccurate and unfair to carriers. Continue reading →

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For all intents and purposes, driving in the U.S. should be much safer now than it was two decades ago. Federal regulations pertaining to everything from commercial vehicle maintenance to drunk driving penalties have become more stringent. Vehicle manufacturers have improved their safety features. And thanks to numerous education and awareness campaigns, more drivers than ever recognize the peril of impaired driving, distraction and abiding by seat belt laws.caraccident

And yet, the National Safety Council reports that traffic deaths in the first four months of 2015 are up sharply from the same time frame in 2014. In fact, the number went up every month for six straight months. In looking at the “100 deadliest days” of the year on our roads – from Memorial Day to Labor Day – an estimated 48,600 have been killed during this three-month stretch from 2010 until now.

And now what we are seeing, the agency indicates, is an 11 percent hike in fatal highway accidents in 2015. Continue reading →

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Can trees planted in a traffic median pose a foreseeable danger to motorists?

Maybe, according to the California Supreme Court. Recently, the court ruled in Cordova v. City of Los Angeles that it’s possible the trees could be considered a dangerous condition of property if a jury deemed the risk was reasonably foreseeable. The city had argued it couldn’t be liable as a matter of law because the trees hadn’t caused the reckless driving of a third-party that resulted in the deaths of four young people and the serious injury of another.atthewheel1

However, the court determined it was not necessary for plaintiffs (representatives of decedents’ estates) to prove the trees caused the man’s reckless driving. Rather, it was only necessary for them to prove the trees were a dangerous condition that caused the injuries. Continue reading →

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An insurance company’s attempt to avoid paying underinsured motorist coverage benefits to a student who was critically injured in a school bus crash has failed.schoolbus1

In Sleiter v. Am. Family Mut. Ins. Co., 19 students were injured in a school bus crash caused by the negligent driver of another vehicle. That driver only carried an insurance policy with a maximum $60,000 liability coverage. Meanwhile, the school district had an insurance policy that covered up to $1 million.

That may sound like a lot, but spread among 19 injured people – some of whom suffered severe, critical, debilitating and lasting injuries – it’s not all that much. After a special master was assigned to calculate the damages of each student, plaintiff’s personal damages were found to be $140,000. (In total, student damages were estimated to be $5.3 million). Because the policy couldn’t reimburse students their full amount of damages, each was given a percentage, based on the severity of their injuries. Continue reading →

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The case of Nat’l Am. Ins. Co. v. Artisan & Truckers Cas. Co. involves an insurance company that refused to defend its insureds after a trucking accident that left two people seriously injured.trucksontheroad1

As in many large truck crashes, there were numerous entities involved. The entire trucking industry is structured in such a way as to limit liability, which can make it difficult for the injured parties pursuing just compensation. That’s why, as the U.S. Court of Appeals for the Seventh Circuit noted, these plaintiffs were “smart” to sue every possible defendant. That included the driver, his father (who owned the tractor), the carrier (whose placard was on the trailer), the other individual who was in the semi-truck at the time of the crash (there was a dispute as to whether he was the one driving).

When the driver of the truck learned of the lawsuit, he contacted his own insurance company to request defense, as is standard for almost all defendants in motor vehicle accidents. However, the insurance company refused defense or coverage. The insurer argued the accident was excluded from policy coverage because defendant was driving the tractor on behalf of the carrier. Continue reading →

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There are some injuries stemming from an auto accident in which it’s fairly easy to connect the dots. Things like whiplash, contusions, abrasions, fractured bones, back injuries, facial trauma or head injuries – these are all injuries seen commonly in car accidents.brainscan

But some injuries may be less obvious. Or a crash could cause aggravation of a pre-existing condition.

Of course, victims are still entitled to compensation for these injuries and ailments, but it’s tougher to prove. Defense lawyers and insurance companies often fight against causation of injuries (in order to reduce their own liability) even when the connection seems obvious. You can certainly bet that if we’re talking aggravation of a pre-existing condition or a less obvious injury, you’re in for a fight. Continue reading →

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Florida’s Third District Court of Appeal recently ruled in Bryant v. Windhaven Insurance Co. that a claim for damages related to the death of an infant in a hot van outside a daycare was not covered under the van driver’s personal insurance policy.carseat1

The case dealt directly with the specific exclusions spelled out in this insurance policy, though it was not a rejection of van driver’s liability or the liability of the day care owner.

This tragic case happened in July 2011 when the driver of a van, employed by a local daycare, picked the infant and several other children from home to transport to the facility. When he got there, he unloaded all the children – except one. He forgot. The child was left in the back seat of that van, strapped in a car seat, for over seven hours. The child died of the effects of the summer heat.

The child’s parents took legal action on behalf of themselves and the estate they created for their deceased child, seeking wrongful death damages against the driver personally, as well as against the day care facility and the landlord.

When that lawsuit was filed, defendant van driver – an employee of the day care center – requested indemnification from his car insurance company, stemming from a policy he took out for his personal auto.

The insurance company provided indemnification, but also sought a clarification that it was not liable to pay whatever damages were owed by defendant driver for his negligence because there were certain provisions that excluded coverage. Specifically, the policy states exclusion of coverage for accidents or injuries stemming from the use of an auto being used in the course and scope of employment. Further, the company excludes coverage of any accidents or injuries stemming from ownership, maintenance or use of any vehicle other than the insured’s covered automobile.

In this case, the covered automobile was a sedan that was not involved in the child’s death. The van was owned by the day care facility, and although van driver regularly operated it, it wasn’t covered under his own policy.

Trial court granted insurer declaratory judgement on the regular use exclusion, but denied it on the employment use exclusion. The estate appealed and the insurer cross-appealed (on the employment exclusion).

The appeals court affirmed in part but reversed in part also. Justices found the regular use exclusion was applicable, but so too was the employment use exclusion.

Estate argued the exclusion was inapplicable because the policy specified an exclusion for “use” of an employment vehicle. However, he wasn’t “using” the van in this case because it was parked in the parking lot.

However, the appeals court found a direct causal connection to defendant driver’s use of the van and the horrible death of this young child. The undisputed facts are that this child’s injuries and ultimately death were directly related and proximately caused by defendant driver’s use of this work vehicle.

This does not preclude the family from receiving compensation from the day care or even personally from the driver. However, the driver’s personal insurance company will not have to pay.

The Florida Department of Children and Families reported that so far this year in Florida, three children died inside hot cars so far in 2015, and there have been 11 nationally. Children are at high risk for these types of incidents because their body temperatures can rise three times faster than that of an adult.

If you have been a victim of an accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Bryant v. Windhaven Insurance Co. , Aug. 5, 2015, Florida’s Third District Court of Appeal

More Blog Entries:

NTSB Asks NHTSA to Study School Bus Safety, Aug. 2, 2015, Fort Myers Wrongful Death Attorney Blog

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