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People who are involved in auto accidents while they are driving for work may, in addition to any compensation from the at-fault driver, be entitled to collect workers’ compensation benefits.

While workers’ compensation may only cover a portion of an injured employee’s lost wages (and nothing for pain and suffering), a third-party’s liability insurance can cover all a worker’s lost wages, as well as an amount for pain and suffering.

However, if an employee receives workers’ compensation and later obtains a judgment from that third party, he or she may need to reimburse workers’ compensation for a portion of that (so they are not doubly paid). But the good news is even if a working driver is at-fault and not eligible to collect liability insurance from the other driver, he or she will still be able to collect workers’ compensation.

In cases where that worker dies as a result of the crash, his or her family will be eligible to collect wordirtroad1kers’ compensation death benefits.

In the recent case of Hamilton v. Alpha Services, LLC, the Idaho Supreme Court affirmed a grant of workers’ compensation death benefits to the family of a man killed in a crash while working for a logging company.

According to court records, decedent was hired by a logging operation in Wyoming, and had to move from Idaho to be closer to work. He rented a house a mile north of the road that led to the logging site. The company provided him with an advance to secure housing. His wife and two children stayed behind.

Three months later, after working an early shift, he drove the company vehicle to purchase groceries. This was a violation of company policy, a fact that was undisputed. He then called his wife around 2:24 p.m., telling her he had to return to the job site and expressing frustration over this fact.

Minutes after that conversation, decedent was involved in a fatal motor vehicle accident with a semi-trailer truck. Highway patrol report indicates as decedent attempted a left turn onto the dirt road leading to the logging site, he was broadsided by a southbound semi-truck that had moved into the left lane in an attempt to pass.

Decedent was pronounced dead at the scene.

His wife later filed a claim for workers’ compensation. The company and its insurer denied the claim, stating worker had not been acting in the course and scope of employment.

A hearing was held, wherein the hearing officer decided more likely than not, the crash arose in and out of the course of worker’s employment. The hearing officer awarded worker’s widow and children burial expenses and income benefits.

Defendant company sought reconsideration, which the commission denied. Defendant and insurer then appealed, arguing that, at best, worker was on his way to work but hadn’t yet arrived.

A worker is deemed to be acting in the course of employment during an accident if it takes place while the worker is doing the duty which he is employed to perform.

Defendants argued there was no evidence worker was turning onto that road for a work-related purpose.

But there was evidence to suggest he was returning to the site in order to ensure a co-worker with whom he was sharing the logging truck had access to it if it was needed, per their earlier agreement.

For this reason, the court found he was more than likely acting in the course and scope of employment. State supreme court affirmed.

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

Additional Resources:

Hamilton v. Alpha Services, LLC, June 22, 2015, Idaho Supreme Court

More Blog Entries:

Dakter v. Cavallino – $1.1M Truck Accident Verdict Affirmed, July 19, 2015, Florida Accident Attorney Blog

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Auto insurance companies owe a duty to act in good faith when faced with claims of liability for a crash. accident1

Courts take claims of bad faith very seriously, and if a finding of bad faith is entered, insurance companies could end up paying double or even triple the original judgment.

Some examples of bad faith insurance action:

  • Company delays, discounts or denies payment absent reasonable basis;
  • Company fails to acknowledge or reply promptly to notice of a covered claim
  • Insurer fails to pay covered claim due to failure to conduct a thorough, prompt and proper investigation;
  • Insurer does not affirm or deny coverage within a reasonable amount of time;
  • Company attempts to settle a claim for far less than that which a reasonable person would know is fair, forcing that person to initiate a lawsuit.

These are just a few examples of insurance bad faith following a Cape Coral traffic accident. Bad faith claims are important to bring not only for compensation to the client, but for the common good of all consumers, as successful cases serve as a deterrent to future wrongdoing.

That said, these cases are not easy to prove. They require a skilled legal team with extensive experience.

The recent case of Purscell v. Tico Ins. Co. highlights some of the difficulty plaintiffs can have in establishing bad faith. The case was heard recently on appeal by the U.S. Court of Appeals for the Eighth Circuit.

According to court records, this case was unusual from the beginning in a number of respects.

Defendant driver in this case had known his passenger for just a few weeks through work. She came to his home drunk and distraught and asked him for a ride. He agreed. She directed him to a local cemetery. After some time, they left and as driver drove, his passenger unbuckled her seat belt, slid over near his side of the car and used her foot to begin pressing down on the accelerator.

He told her to stop, but she did it again. He yelled at her to stop, but she did not. The car flew through a stop sign traveling nearly 70 miles-per-hour, t-boning another vehicle.

Defendant driver’s passenger was thrown from the vehicle and killed. The two occupants of the other vehicle, husband and wife, were seriously injured after the vehicle overturned and caught fire. The husband nearly died.

It would later be revealed that grave site belonged to a friend of the passenger’s killed in a drunk driving crash while decedent/passenger had been driving.

Defendant held an insurance policy that covered individual bodily injury up to $25,000 and total accident liability of up to $50,000. This would be nowhere near enough to cover the damages sustained by all parties (which is why it’s always a good idea to have uninsured/underinsured motorist coverage, which helps make up the difference in that situation).

The husband and wife in the other vehicle had incurred nearly $100,000 in medical bills just in the first weeks after the crash, and the bills were continuing to mount. They made an offer to the insurance company to settle for policy limits at that time.

However, the insurance company declined to settle, saying the crash was still under investigation (it had only been three weeks) and they were unsure about whether coverage extended to this situation, given the intentional conduct of the passenger.

The offer to settle for policy limits was later withdrawn and plaintiffs filed a lawsuit against the driver and his insurance company. Meanwhile, the parents of the passenger who’d had her foot on the accelerator also filed a wrongful death lawsuit, both against the insurance company and the driver.

Insurance company notified defendant he might wish to secure his own personal attorney as he may be open to excess liability. The insurance company set aside the full policy limits in an account with the court, indicating its intention to pay that amount (called an interpleader action).

Passenger’s parents settled their wrongful death case for $8,000. Meanwhile, the case against defendant driver went to trial, and a judgement was handed down for $830,000 for husband’s injuries and $70,000 for that of the wife. Although plaintiff’s own attorney said defendant driver was perhaps between 1 percent and 5 percent liable for what happened, jurors determined he and his passenger were equally liable, so he was personally responsible for half that amount. His insurance company was only responsible to pay $50,000 of that, leaving him with a substantial judgment against him.

He then filed a bad faith action against his own insurance company, arguing it should have settled the case for policy limits after plaintiff’s first offer and that failure to do so opened him up to substantial personal liability.

However, the court did not find the insurer had acted in bad faith. The court noted indicating bad faith would have required proof the insurer tried to escape its responsibility to pay the policy limits, and that was not the case here.

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

Additional Resources:

Purscell v. Tico Ins. Co. , June 22, 2015, U.S. Court of Appeals for the Eighth Circuit

More Blog Entries:

Kimminau v. City of Hastings – Government Liability for Truck Spill Cleanup, July 24, 2015, Cape Coral Car Accident Lawyer Blog

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There are an estimated 15 million trucks in the U.S., and approximately 2 million of those are tractor-trailers, hauling material goods coast-to-coast. An accident involving one of these large vehicles can be especially dangerous. But another thing to consider is that when these trucks crash, they may cause additional roadway hazard as a result of cargo spillage. roadway2

In these cases, the onus is on government authorities to ensure the mess is cleaned up and the roadway is indeed safe once it’s cleared for traffic.

In the recent case of Kimminau v. City of Hastings, it is alleged this did not happen, following a Nebraska truck crash resulting in a major spill of corn mash that made the road surface extremely slippery. Although liability for the presence of that substance on the road would have initially fallen on the shoulders of the driver and/or the trucking company or owner of the trailer, authorities too owed a duty to the public.

As the Nebraska Supreme Court ruled, once local police and fire officials cleared the site of the truck crash as safe for more traffic, the duty was no longer on the shoulders of the truck company or truck driver. However, the local government could not escape liability on the basis of sovereign immunity, which is what the three local subdivisions that employed the police and firefighters tried to do.

According to court records, a truck crashed on a two-lane paved road, spilling “corn mash” all over it. The substance is the consistency of tapioca pudding, and is sometimes referred to as “wet cake.” It’s a byproduct of what is fed to cattle.

It is a very wet substance and made the road extremely slippery.

Two local fire departments – one from the city and a rural volunteer force – responded and moved the spill from the traveled portion of the road to the unpaved shoulder and into a ditch using fire hoses, shovels and brooms. Neither the truck driver nor trucking company was asked to help with the clean up, and neither did so.

After the cleanup, the truck driver was issued a traffic citation. The officer then reinspected the roadway, deemed it safe for travel and reopened it to through traffic.

Later that evening, a captain for the volunteer fire squad drove by and observed the road was free of debris.

The following day, around 1:30 p.m., a woman was driving on that road and as she encountered the site of the earlier spill, she lost control of her vehicle, swerved and struck a utility pole. A photo of the accident scene reveals there was corn mash in the southbound lane. Driver had not been aware of the spill until her vehicle came in contact with it.

Another motorist traveling behind her would later say he saw her vehicle drop a tire off the roadway and onto the unpaved shoulder, which caused it to come in contact with the corn mash and lose control of her vehicle.

Driver later sued the county, the city and rural subdivision for failure to take or direct others to take corrective action in ensuring the roadway was fully cleared and secondly for failing to warn motorists of the danger created by the spill. She also named the truck driver and trucking company as defendants.

Trial court granted summary judgment motions to all defendants, finding truck company and driver were cleared of liability once government authorities gave the scene the Ok. The government entities, trial court ruled, were shielded by sovereign immunity, which protects government from civil litigation except in instances where that agency waives protection.

The Nebraska Supreme Court affirmed in part (as to the truck company and driver) and reversed in part (as to the issue of sovereign immunity). The court further noted that just because the corn mash was moved off the traveled portion of the roadway did not necessarily mean the road was safe, as previous case law has indicated the shoulder is part of the highway, as it is contiguous to the road and designed for the accommodation of stopped vehicles.

Now, the case can proceed to either further settlement negotiations or trial.

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

Additional Resources:

Kimminau v. City of Hastings, June 19, 2015, Nebraska Supreme Court

More Blog Entries:

Fleming v. Dionisio – $3.4M DUI Wrongful Death Verdict Affirmed, July 21, 2015, Fort Myers Car Accident Attorney Blog

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Rejecting a defense claim disputing the role of illicit stimulant drugs consumed by defendant two days prior to a fatal crash, the Connecticut Supreme Court upheld a $3.4 million wrongful death verdict.nature

An expert witness for plaintiff – widow of the 50-year-old motorcyclist who was killed in the head-on collision in 2009 – had testified the effects of the drugs found in defendant’s system made him prone to inattention, fatigue and falling asleep at the wheel. This, combined with the fact that he’d had little sleep in the days preceding and had consumed alcohol over the limit, severely impaired his driving, jurors found.

Defendant appealed, arguing the expert witness testimony was based on incomplete studies and analysis. However, the state supreme court in Fleming v. Dionisio did not agree.

Having already been sentenced to five years in prison for DUI manslaughter, defendant will now be responsible to pay on that $3.4 million verdict, which included both economic and punitive damages. It’s worth noting injury damages stemming from DUI cases are not able to be discharged in bankruptcy proceedings.

Previously, plaintiff settled another wrongful death and loss of consortium lawsuit against defendant’s father, who owned the vehicle he was driving at the time of the crash, for $1.3 million. The victim left behind a wife and daughter.

The just-turned-21-year-old had been on something of a binge in the days leading up tot he crash. On the night of July 3rd, he consumed several beers before sleeping for three hours and rising to work a 16-hour shift at a local restaurant. From there, he returned home, and consumed six to eight more beers between midnight and 3 a.m. Defendant states he does not recall what occurred between 3 a.m. and 7:30 a.m., but he awoke in the driver’s side seat of his father’s vehicle. He had crashed.

In so doing, he crossed the center line and struck the motorcyclist head-on.

A police officer arrived at the scene and found indications defendant was intoxicated, and perhaps not just by alcohol. His blood-alcohol level, taken two hours later at a local hospital, was 0.09, which is above the legal limit. While in the hospital, defendant learned the motorcyclist had died. He began debating whether he should drink his own urine, which was in a bed pan near the bed, in an attempt to destroy evidence. A nurse walked in on him consuming his own urine and took the bed pan away from him.

At trial, expert witness made note of the fact that toxicology reports indicated defendant had consumed cocaine and ecstasy some two days prior to the crash. This fact was relevant, the court ruled, because, as expert witness opined, the time lapse between consumption and the crash would have put defendant in a “crash state” at the time of the wreck. That is, he was coming down from the drugs, and was therefore more prone to extreme fatigue and other side effects that would have impaired his driving.

Jurors in the civil case deliberated just two hours before returning a verdict in favor of plaintiff.

On appeal, defendant argued the expert witness should not have been allowed to attest to drug use that occurred days prior to the crash. He also argued testimony of his post-crash behavior at the hospital was prejudicial and not relevant to the facts of the case.

However, that state supreme court disagreed, and the verdict was affirmed.

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

Additional Resources:

Fleming v. Dionisio , July 14, 2015, Connecticut Supreme Court

More Blog Entries:

Seabright Ins. Co. v. Lopez – Work-Related Car Accident, July 4, 2015, Fort Myers Drunk Driving Accident Attorney Blog

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Taking on the issue of truck driver negligence, the Wisconsin Supreme Court recently decided it was not erroneous for trial court to allow evidence and testimony underscoring that truck drivers are professionals who are trained and skilled for the job they do. trucking

The court in Dakter v. Cavallino rejected the notion that it was error to instruct jurors that the standard of care was to be considered that which a “reasonable and prudent truck driver would use under the same or similar circumstances.” The truck driver, who lost the case at trial, had tried to argue the court wrongly imposed on him a heightened duty of care.

“Duty of care” is a standard element in every negligence case. In order to prove negligence, one must show there was a duty of care, defendant breached that duty and plaintiff suffered compensable injury as a result. Here, the trucker argued he should be held to the same standard as any other driver, and outlining his “special skill” and “training” made it seem as if he was held to a higher standard. The state high court did not agree.

According to court records, the underlying truck accident occurred in May 2008. Plaintiff was driving a passenger vehicle and was preparing to turn left at an intersection. Truck driver was traveling in the opposite direction, and was preparing to continue straight. As plaintiff made his turn, he was struck by the 65-foot truck.

Several facts leading up to the crash are in dispute, but we do know plaintiff sustained serious injuries as a result of that collision.

Plaintiff and his wife sued for negligence.

Both sides agreed that the standard of ordinary care applies to truck drivers of semi-trailer trucks. They did not agree, however, that jurors should hear expert witness testimony regarding the special knowledge and skill possessed by drivers of these trucks. Trial court sided with plaintiff on this issue, noting all drivers are required to maintain speed, proper lookout and adequate control of the vehicles they drive. To this point, the expert witness testimony was allowed.

One of those testifying for plaintiff was a man who trains truck drivers. He noted two mistakes this truck driver allegedly made. The first was not reducing his speed, as he would have needed to do with an empty trailer, which require more time to stop safely. Further, evidence of the road conditions at the time of the crash indicate the pavement was wet. Standard truck driver training is that when the pavement is wet, the driver must reduce his or her speed by one-third. Defendant did not do that in this case.

Similarly, the other two expert witnesses testified truck driver was traveling at an unsafe speed while operating a large vehicle while approaching an intersection in rainy weather.

Jurors returned a $1.1 million verdict for the plaintiff, finding defendant negligent.

Upon appeal, the appeals court determined the jury instruction given was erroneous, but not prejudicial – which is what would be needed to grant a whole new trial.

However, the state supreme court found there had been no error in the instruction or in the introduction of plaintiff’s expert witness testimony. The $1.1 million verdict was affirmed.

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

Additional Resources:

Dakter v. Cavallino , July 7, 2015, Wisconsin Supreme Court

More Blog Entries:

$24M Damage Award for Florida Fatal Crash, July 7, 2015, Fort Myers Truck Accident Lawyer Blog

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Sanibel Island is renowned for its vast network of beautiful bicycle trails, and cyclists generally enjoy a good rapport with vehicle drivers. bicyclist21

But while the island is nationally recognized as bike-friendly, it seems not everyone there shares the same view. A bike-cam video recently shared with local media on the heels of a personal injury lawsuit reveals how dangerous that hostility can be to cyclists.

The video shows it to be a clear, sunny afternoon when a group of bicyclists were traveling along West Gulf Drive. They were traveling at approximately 20-mph on that two-lane road, the GoPro video reveals. The driver whizzes past the cyclists, pulls ahead of them, and then suddenly comes to a dead stop.

Off camera, a serious of clunking noises, and then commotion. The lead cyclist has fallen off his bicycle and is on the ground, bleeding, badly injured and suffering a concussion.

One person can be heard yelling an obscenity, while someone else retorts with another expletive, saying “You f–ing hit him!” At that point, the driver speeds off.

The 53-year-old cyclist – a bicycle shop owner – is still recovering. His shoulder remains sore and his neck is still stiff. But he knows it could have been worse if he hadn’t been wearing a helmet.

Perhaps what was especially galling about the alleged incident: The driver of that car was a medical doctor. He was identified as a 64-year-old resident of Sanibel and a physician.

Police viewed the video and ticketed the doctor with careless driving. The doctor paid that ticket and his case his closed – at least from a criminal standpoint.

Those who witnessed the incident are concerned police didn’t take a harder line against the driver. But police said several issues complicated their pursuit of criminal charges. The first is that the doctor only answered police questions before he’d been read his Miranda rights. He declined to do so after. Authorities didn’t feel they had enough evidence – absent those pre-Miranda statements – to file charges. This was also partially due to the fact neither the victim nor witness could positively identify the doctor as the driver.

Still, the case is being reviewed by the local state attorney’s office, which may consider filing more serious charges.

The victim has filed a personal injury lawsuit against the doctor for negligence in operating a motor vehicle.

Some have criticized the cyclists for not simply staying on the bike path. However, avid cyclists note aside from the fact they legally have the same rights to the road as motor vehicle drivers, it would not be safe for them on the bike paths. Cycling tourists and pedestrians routinely use those paths at a leisurely pace. Cyclists speeding by at 20 mph could be a danger to themselves and others on those paths.

This is not the first time in recent memory South Florida cyclists have faced danger as a result of road rage from drivers. There was a case not long ago of a driver firing gunshots at a bicyclist who shouted at him to slow down. In another case, a motorcyclist intentionally slammed into a cyclist. In yet another case, a driver who hit and maimed a bicyclist allegedly got out and spit in her face before driving off.

Individuals who carry out these kinds of despicable acts must be held to account. Even if charges or a conviction does not result from the criminal investigation, our experienced Sanibel bicycle accident lawyers are here to help you explore your options.

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

Additional Resources:

Sanibel cyclists allege road rage in crash video, July 16, 2015, By Janine Zeitlin and Laura Ruane, The News-Press

More Blog Entries:

Florida Drunk Driving Crash Claims Life of Teen, July 14, 2015, Sanibel Bicycle Accident Attorney Blog

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Repeat drunk driving offenders are a major problem, both in Florida and nationally. beers

There are literally thousands of laws passed with the intent purpose of curbing drunk driving. While there strength and enforcement varies from state-to-state, repeat offenders routinely flout them regardless. In fact, one report indicated 70 percent of repeat offenders drive without a license.

Mothers Against Drunk Driving (MADD) reports that a proportionately small percentage of drivers cause the majority of death and injury on our roads. In fact, roughly one-third of the arrests, crashes, deaths and injuries attributed to drunk driving involves a repeat offender.

Take the case of the 33-year-old Jacksonville man who stands accused of an April crash that led to the death of a 19-year-old. According to police reports of the crash, the teen was operating his motorcycle around 10:40 p.m. when the allegedly intoxicated restaurant manager turned left into the parking lot of an apartment complex. The two vehicles collided.

Authorities would later say the driver failed to yield the right-of-way to the motorcyclist, who died two weeks after the crash.

Police said the driver then left the scene.

That driver later – and likely to the dismay of his criminal defense attorney – granted a series of jailhouse interviews to a newspaper reporter while he awaits trial on charges of DUI manslaughter and hit-and-run.

He told the reporter he didn’t feel drunk that night after downing two margaritas with his girlfriend at a local restaurant. Although a police report indicates the driver didn’t consume any drinks at a bar after that, the driver told the reporter that in fact he did have beers at that bar.

When he was arrested, his blood-alcohol level was 0.18. He had initially refused to provide a blood sample, but police were able to obtain one through a warrant.

The driver insisted the motorcyclist’s lights were not on and he never saw him as he went to make that turn. While he says he is deeply remorseful for the incident, he rails against the fact the state never got him help for his alcoholism.

However, records show that’s not entirely true.

When defendant was 20, he was arrested and convicted for DUI in Tennessee in 2002. He was required to serve probation and 40 hours of community service. Six years later, he was convicted for DUI in Oklahoma. He was ordered into treatment and his license was revoked for a year. He was also convicted that same year of raping his girlfriend after he reportedly punched, bit and threw her during a drunken sexual encounter. He received a short jail sentence and eight years probation.

The following year, he moved to Florida and was convicted of DUI and leaving the scene of a crash. He received one year probation and a six month license suspension. He later failed to show up for alcohol treatment counseling and was convicted for violating his probation.

Then in 2010, he got 60 days in jail and 10 months probation and a suspended license for a conviction for refusing to submit to a breath or blood test following a hit-and-run crash.

Two years later, he was convicted twice for driving on a suspended license – something he admitted he did all the time because he had no other way to get to work.

He then admitted to the reporter the fatal crash that claimed the teen’s life happened after he’d been drinking at three different bars.

There is no excuse ever for driving drunk, but repeat offenders especially must be held to account. This offender may have been attempting to gain sympathy by telling his side of the story to a reporter before trial. However, in all likelihood, our DUI injury lawyers recognize he helped bolster the criminal and civil cases against him.

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

Additional Resources:

Serial DUI driver laments over death of 19-year-old Jacksonville man, June 7, 2015, By Jim Schoettler,

More Blog Entries:

Browning v. Hickman – Fault in Car Accident Lawsuit Disputed, June 23, 2015, Fort Myers Drunk Driving Wrongful Death Attorney Blog

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In the recent case of Reynolds v. Bordelon, the Louisiana Supreme Court ruled that while spoliation of evidence is not a tort claim, plaintiff in the injury lawsuit may have other forms of remedy. crash13

Plaintiff alleged spoliation when, after a serious car accident, his motor vehicle was not preserved for analysis connected to the personal injury litigation – even after he notified both his insurance company and the maker of the vehicle that he intended to file.

Spoliation, also sometimes referred to as “destruction of evidence,” is a cause of action which alleges someone is liable for negligently or intentionally destroying material that is needed as evidence in litigation.

Florida recognizes spoliation as a tort, sometimes referred to as “negligent failure to preserve evidence.” Most of these cases are brought against insurance companies on the basis of duty imposed under the insurance contract. In the early-1990s Florida case of Miller v. Allstate Insurance Company, the court held this type of claim must have the following elements:

  • Existence of a possible civil lawsuit
  • A duty (either contractual or legal) to preserve evidence relative to that civil lawsuit
  • Destruction of pertinent evidence
  • Significant hindrance in the ability to prove the lawsuit
  • A causal relationship between destruction of evidence and inability to prove the claim
  • Damages

The Miller case contained many of the same facts as the Reynolds car accident case. In Miller, the insurer promised to preserve insured’s vehicle for use in a claim against manufacturer. But when the vehicle was destroyed, insured had a valid cause of action against insurer.

In Reynolds, the issue was allegedly defective airbags. According to court records, plaintiff was involved in a multi-vehicle accident and sustained serious injuries.

Subsequently, plaintiff filed a lawsuit against the purportedly at-fault driver of the crash.

Additionally, as part of that litigation, plaintiff asserted claims under the state’s products liability act against the car manufacturer and distributor, He alleged the airbag’s failure to deploy was the result of a defect and caused his injuries to be exacerbated.

In addition to suing the manufacturer/distributor, plaintiff named his insurance company, which was the custodian of his vehicle post-crash.

Although he notified the company of his intention to file a products liability case, the insurance company and an auto auction firm did not preserve the vehicle for inspection. As a result, plaintiff was deprived of the ability to have the vehicle examined for potential defects.

Defendant insurer and auction firm said there was no evidence of intentional destruction of evidence, as noted in state statute.

Defendants also filed motions for summary judgment based on appellate court opinions that stated negligent spoliation of evidence as a tort was rejected.

The state supreme court ultimately agreed to review the case to offer a definitive rule on the viability of a claim for negligent spoliation of evidence. The court ruled there is not one.

Still, plaintiffs aren’t necessarily without option, as there could still be a claim brought under the state’s breach of contract laws.

There is also the potential for the trial court to grant certain penalties – such as a finding of liability that disfavors the party found responsible for spoliation.

This ruling does not affect Florida courts, which will still recognize this as its own cause of action.

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

Additional Resources:

Reynolds v. Bordelon, June 30, 2015, Louisiana Supreme Court

More Blog Entries:

Lopez v. U.S. – Injury Crash Involving Postal Worker, July 2, 2015, Fort Myers Accident Attorney Blog

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Anytime there is a multi-vehicle collision, the question of fault can be a tricky one to establish. road3

However, where there are key facts disputed and even differing expert witness opinions, a case should be allowed to proceed to trial so that jurors can weigh the various issues of fact. Only when there is no question of fact and the case can be decided as a matter of law should a trial court grant summary judgment to one party or another.

Recently, the Oklahoma Supreme Court ruled a trial court and appeals court erred in granting and then affirming summary judgment in favor of a defendant involved in an accident that resulted in the death of one motorcyclist and the serious injury of a motorcycle passenger. In reversing the summary judgment, the state high court in Fargo v. Hays-Kuehn paves the way for the multiple-vehicle crash case to be considered by a jury.

Interestingly, the one defendant against whom the case is pressing forward never had any collision contact with the motorcycle on which the two motorcyclists were riding. However, the allegations is that defendant’s negligent actions in operating a motor vehicle were the proximate cause of the crash and therefore of the subsequent death and injuries.

According to court records, the fatal motorcycle accident occurred in July 2008.

There were three vehicles driving in succession on a rural, two-lane highway. We’ll call them A, B and C.

Vehicle A was first in line. She slowed and then stopped as she approached an intersection to wait for oncoming traffic to clear before making a left turn. The motorcyclist was one of those vehicles that was approaching at highway speeds.

Vehicle B was in a larger truck. Rather than slow down or stop behind Vehicle A, she continued to operate her vehicle at highway speeds in order to pass Vehicle A on the left.

Meanwhile, Vehicle C was behind Vehicle B. Because Vehicle B did not slow down or signal before quickly moving into the left lane, she did not realize she was fast-approaching a stopped vehicle. By the time she realized what was happening, she attempted to avoid a collision by swerving into the opposing lane. However, as she did so, she took note of the motorcycle that was fast-approaching. In an attempt to avoid crashing with the motorcycle, she then swerved back into her lane.

This evasive maneuver failed. Vehicle C ended up striking Vehicle A and then soon after striking the motorcyclist. The impact of that collision caused both the operator and rider to be thrown from the bike. The operator of the motorcycle died at the scene, while the passenger sustained serious personal injury.

Authorities with the state highway patrol determined although Vehicle B didn’t collide with anyone, her failure to reduce her speed or to complete a safe passing was the cause of the crash. However, they also cited Vehicle C for following too closely.

Plaintiffs (the injured passenger and surviving family members of the decedent) initially filed a lawsuit against all three drivers, but later pared it down to the case against solely driver of Vehicle B.

Defendant requested a summary judgment, asserting Vehicle B could not have known Vehicle C was directly behind her and that she would follow into the oncoming lane of traffic and strike a motorcycle.

Trial court granted her request and appeals court affirmed.

However, the state supreme court reversed because the question of which driver proximately caused the crash is a matter of fact that should be weighed by a jury – not a matter of law to be decided before trial by a judge.

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

Additional Resources:

Fargo v. Hays-Kuehn , June 30,2015, Oklahoma Supreme Court

More Blog Entries:

SeaBright Ins. Co. v. Lopez – Work-Related Car Accident, July 4, 2015, Fort Myers Motorcycle Accident Lawyer Blog

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Jurors awarded $24 million the husband of a pregnant woman killed when a drunk driver crashed into a pool cabana in front of a hotel in Fort Lauderdale. wreckedcar2

The crash happened in 2012 when the couple was attending a marriage retreat. The husband was inside the cabana restroom and sustained minor injuries. But the wife, standing just outside, was directly struck. Both she and her seven-month unborn child died as a result of their injuries.

Vehicle driver had a blood-alcohol level of 0.24 at the time of the crash. She was later convicted of two counts of DUI manslaughter and sentenced to 15 years in prison. Jurors determined she was 85 percent liable for the crash, but also found the hotel was 15 percent liable. It will have to pay $3.6 million, assuming the verdict survives an expected appeal.

An attorney for plaintiff stated the driver had a horrible driving record, but the hotel was aware such drivers existed on the road and could and should have done more to prevent this crash.

Admitted into evidence was a traffic study indicating the cabana at the hotel was located on a sharp curve where drivers routinely travel at 50 mph or more. Several during the study period were even clocked going more than 75 mph.

Hotel workers knew this was a problem. In fact, one worker sent an e-mail to city council prior to the traffic collision, calling that stretch of road “a race track.” The issue had even been discussed by the hotel board at routine safety meetings. And yet, nothing was done to protect the cabana area from the road. Although the hotel couldn’t lower the speed limit, it could have erected a barrier or made that portion of the hotel inaccessible to guests.

Employees even at one point put up a stop sign on a city road. However, this was not a legal course of action.

This was a high-traffic area, and given the danger posed to guests, the jury reasoned, more should have been done to offer protection.

Plaintiff attorney said this was not “your average freak accident.” In fact, evidence presented indicated the hotel workers knew for almost two years before the crash that this was a hazard.

With the majority of the damages apportioned to the imprisoned drunk driver, it’s likely plaintiff will not collect on most of that. However, it will grant him the right to seize whatever assets she has. Further, damages awarded in court due to drunk driving may not be discharged in the course of a bankruptcy. That means she will be paying on this debt the rest of her life, long after she is released from prison.

Our experienced DUI wrongful death lawyers do recognize that while awards like this do not bring back the precious lives lost, they do send a message of accountability.

It’s probable this will spur other hotels and businesses will carefully evaluate their own property for potential hazards, and prompt them to take action to prevent another tragedy.

Our team is committed to fighting for justice.

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

Additional Resources:

Jury Awards $24 Million in Fatal Cabana Crash, June 24, 2015, By Keith Jones, NBC 6

More Blog Entries:

Wolfe v. Allstate Prop. & Cas. Ins. Co. – Bad Faith Insurance Action, June 25, 2015, Fort Myers Car Accident Lawyer Blog

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