Published on:

Loved ones of those killed in work-related accidents are almost always going to be entitled to workers’ compensation death benefits. While this is held as the exclusive remedy for injured workers and their families, there may also be some instances where third-party negligence lawsuits may be appropriate. roofdeck

Identifying potential defendants in these situations, particularly when the worker died on a multi-employer work site, can be complex. Florida law is careful to relief general contractors of liability in these cases, so long as they had secured workers’ compensation coverage for subcontractors. However, there may be some exceptions, and it’s not always easy for grieving loved ones to know their options.

There may be certain statutory time limitations on these claims as well, so it’s critical to contact an experienced work injury lawyer as soon as possible after the accident.

The recent lawsuit of Gaytan v. Wal-Mart, weighed by the Nebraska Supreme Court, shows how these cases can take several twists and turns. This one has yet to reach its final conclusion, but the high court did partially reverse a lower court judgment, allowing the worker’s widow to continue her negligence case against a subcontractor.

As our Cape Coral workers’ compensation lawyers understand it, the claimant alleges the general contractor retained control over the use of certain safety equipment on the roof where the accident occurred.

The court in that state had previously held that when a general contractor retains control over an independent contractor’s work, the general contractor owes a duty to use reasonable care in taking measures to prevent worker injuries. In order to meet this threshold, the level of control must be “substantial,” and involve supervision of the work that caused injury, actual or constructive knowledge of the danger that caused injury and the opportunity to prevent the injury. The idea is an entity that controls the work should be responsible for making sure it’s done safely. In this regard, the court found no basis for which property owners should be treated differently than general contractors.

However, the court found evidence against the property owner in this case to be lacking.

According to court records, the retail chain store in 2008 hired a general contractor to oversee roof construction on a new building. That general contractor hired a subcontractor, who in turn hired an independent contractor. The worker in question worked for the independent contractor.

One morning shortly before noon, the worker was walking with a co-worker on the roof outside the controlled decking zone, where they were required to don personal protection equipment, such as harnesses with an attached cable or rope at all times. However, neither was wearing this protection. The decking sheet gave way, causing them both to fall about 25 feet. It was later discovered the temporary screws holding the sheet in place had been removed. One of those workers died as a result of the fall. His personal protection equipment, unused, was found nearby.

His widow sued both the property owner and the general contractor for negligence.

But while the court found evidence lacking to hold the property owner negligent, it did find evidence supporting the assertion that the general contractor, in control of the use of personal protection equipment on site, was negligent in failing to ensure everyone who was supposed to wear it did.

Further, the court noted that after the worker’s death, the Occupational Safety & Health Administration fined the general contractor because certain danger zones on the roof weren’t properly guarded with railing; he instead had used cones. Further, OSHA noted that while none of the general contractor’s own workers were exposed to risk, as the “controlling employer” on site, it had the responsibility to ensure overall safety and health on the site. That meant, in part, making sure all workers wore the personal protection equipment, which it solely provided.

For this reason, the state high court held, the worker’s widow may continue pursuit of her third-party lawsuit against the general contractor for wrongful death.

If you have been a victim of work-related injury in Cape Coral, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Gaytan v. Wal-Mart, Sept. 19, 2014, Nebraska Supreme Court

More Blog Entries:

Arvizu v. Heights Roofing Inc. – Culpable Negligence in Workplace Injuries, Sept. 16, 2014, Cape Coral Work Injury Lawyer Blog

Published on:

Florida’s Third District Court of Appeal recently reversed the criminal conviction of a man for vehicular homicide, finding that while his actions behind the wheel were careless – and possibly even negligent – they did not rise to the level of recklessness required to convict him of such a serious felony charge. suv1

The case highlights the fact that while a civil action and criminal action may involve the exact same set of facts, each can have very different outcomes. That’s because the two systems have differing standards of proof. In the criminal case, one must prove guilt of a certain crime beyond a reasonable doubt. In civil cases, however, there isn’t a “guilty” or “innocent.” It’s about negligence and liability. That means proving the defendant owed a duty to the plaintiff, the duty was breached and the breach proximately caused costly harm or injury to the plaintiff.

Individuals who are victims of careless drivers may seek justice in the form of ensuring a person spend time in jail or refrain from driving again. In some criminal cases, judges will even order restitution paid to the victim. But where the criminal system focuses on punishment of the accused, the civil system aims to restore the injured, to whatever extent that’s possible.

And this is why people injured in auto accidents involving drivers who acted criminally should also explore their options with an experienced Fort Myers car accident attorney.

In the recent case of Luzardo v. Florida, the facts that gave rise to the case occurred in May 2011 around 10 a.m., near the entrance of Gator Park, a tourist attraction on Tamiami Trail in Miami-Dade. Surveillance video at the park entrance indicated the morning was clear and sunny.

Defendant was spotted traveling eastbound in his sport utility vehicle at 84-miles-per-hour. The speed limit in that area is 55-miles-per-hour.

Traveling in the opposite direction was the alleged victim, a tourist form the United Kingdom, who was headed to the park with three others to take an airboat ride. She was operating a leased vehicle, and was unfamiliar with both the roads and the vehicle.

She spotted a parking space at the park and began to turn left. However, one of her passengers shouted about the defendant’s oncoming vehicle. She responded by applying her brakes in the middle of the eastbound lane. When the defendant realized the other driver was not going to complete her turn, he attempted to swerve around her, but he did not manage to do so successfully. His vehicle struck the other in the right rear passenger door, killing one of the four occupants inside.

The Florida Highway Patrol initially charged the other driver with non-criminal violation of right of way by turning left into oncoming traffic. However, a year later, the state changed its position, dismissed the non-criminal violation and charged the defendant with felonious operation of a motor vehicle in a reckless manner and vehicular homicide.

He was ultimately convicted.

However, as the appellate court noted, this was not the correct outcome because case law has established that excessive speed alone will not support a conviction for vehicular homicide pursuant to Florida Statute §782.071. The statute specifically states that neither carelessness or ordinary negligence is enough to sustain a felony conviction for vehicular homicide. Rather, it requires proof of other elements of reckless driving.

For this reason, the 3rd DCA reversed the criminal conviction.

However, that does not mean a civil action could not still proceed. Because the law in Florida does not bar recovery of damages due to comparative fault, it’s possible the driver who was struck could seek damages for injuries. Likewise, the family of the woman killed in the crash might be eligible from compensation from both parties.

While traveling 30-miles-per-hour over the speed limit resulting in or contributing to a death may not be grounds for a vehicular homicide conviction, but a strong case for negligence could be made.

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

Additional Resources:

Luzardo v. Florida, Oct. 1, 2014, Florida’s Third District Court of Appeal

More Blog Entries:

Williams v. GEICO – Auto Insurance Step-Down Provisions Challenged, Sept. 6, 2014, Fort Myers Car Accident Lawyer Blog

Published on:

In an increasing number of medical negligence lawsuits, plaintiffs are seeking to hold hospitals vicariously liable for the negligent actions of physicians and staffers. This is true in Florida also, despite the fact that Florida common law hasn’t formally recognized the broad duty on the part of modern hospitals to provide non-negligent medical care through physicians, nurses, staffers or contractors. ambulance

The concept is known as “non-delegable duty,” which is the principle that hospitals are responsible for the care given in its facilities, regardless of who actually delivers that care. Non-delegable duties usually arise out of an inherently dangerous activity or condition, but Florida has never defined medical or surgical care in this way. Therefore, unless the doctor or staffer is a direct employee of the hospital, the hospital generally isn’t liable for the care provided.

However, there are sometimes exceptions made under the theory of apparent agency. The theory of apparent agency is applicable when conduct by an agent causes another party to believe the agent is authorized to conduct business on behalf of the principle, regardless of whether that’s true. In the context of a hospital setting, it would mean that the conduct of a doctor or staffer caused the patient to believe he or she was authorized to conduct business on behalf of the hospital, even though he or she was in fact an independent contractor. Courts have allowed vicarious liability actions against hospitals on these grounds – most notably in the 2003 2nd DCA case of Roessler v. Novak.

Additionally, our Tampa medical malpractice attorneys know plaintiffs have used language in Chapter 395 of Florida Statutes to further their claim of vicarious liability of a hospital. The statute governs hospitals, and in part requires the Agency for Health Care Administration to adopt rules that make sure hospitals are operated according to consistent and acceptable standards. This was what plaintiffs in Wax v. Tenet Health System Hospitals relied upon their medical negligence claim, where the trial court ruled (and the 4th DCA affirmed) the duty of hospitals to ensure hospitals provide non-negligent anesthesia services to all patients undergoing surgery. The court in Wax agreed with plaintiff that because AHCA rules required hospitals to provide anesthesia services in compliance with AHCA rules to adhere to reasonable and fair minimum standards, the hospital was thus obligated to offer non-negligent services.

Plaintiffs have in several subsequent cases pushed to have the Wax ruling applied to other aspects of hospital operations, but there have yet been other Florida appellate opinions that have granted those requests.

Case law standards are continuing to develop on this front, and procedurally, claims of vicarious liability against hospitals are still more complex than those asserting simple negligence for a non-medical procedure.

Recently in New Mexico, the state supreme court reinstated a medical negligence lawsuit against a hospital for vicarious liability, after summary judgment was granted to defendant for alleged failure to adequately notify the defendant that one or more of its agents or employees was negligent. In Vaughan v. St. Vincent Hospital, a patient had come to the emergency room with abdominal pain. A test by a radiologist showed cancer, but that diagnosis was not properly communicated to the surgeon or the patient.

Patient’s cancer later progressed, and his prognosis is now poor. He filed a lawsuit against not just the radiologist, but the hospital for vicarious liability. The hospital argued the lawsuit should be dismissed because plaintiff hadn’t expressly pleaded “vicarious liability” with regard to its duty as the employer of the radiologist. The New Mexico Supreme Court found plaintiff’s pleading adequate, meaning the lawsuit will continue.

Because this area of law is continually evolving, both in Florida and across the country, it’s imperative for one filing a medical malpractice action to seek legal counsel from a firm with extensive experience and proven success.

To file a medical malpractice lawsuit in Tampa, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Vaughan v. St. Vincent Hospital, Sept. 18, 2014, New Mexico Supreme Court

More Blog Entries:

Hahn v. Walsh – Inmates Entitled to Adequate Medical Care, Sept. 2, 2014, Tampa Medical Malpractice Lawyer Blog

Published on:

An auto insurance policy is a contract, legally-binding, that outlines the scope of coverage for insureds and anyone involved in a crash with them. Courts give the language of these policies great weight in determining whether coverage is available, and if so, how much. Insurance companies are given much latitude in defining coverage amounts, exclusions and special conditions. keys1

However, there are situations in which the language in these policies fails to meet the strict statutory standards set forth for the insurance industry, and therefore the policy is void. For example, if there is ambiguity in a portion of the policy, the courts will decide in favor of the plaintiff.  Another is an over-broad expansion of an allowable exclusion. In other cases, courts have found policies to be void when they run counter to public policy.

These cases require the aid of an experienced attorney. One such case recently was recently before the California Court of Appeal, Fourth Appellate District, Division Three. In Mercury Casualty v. Chu, the question was whether the insurer improperly denied coverage to a student passenger/roommate of the driver on the basis of a “resident exclusion” that is common in auto policies. The court found that the exclusion as applied was over-broad and contrary to public policy.

Our Fort Myers car accident lawyers note the case stemmed from a 2008 accident involving a group of college students. According to court records, the insured (also the at-fault driver) was driving, his roommate in the passenger seat, when he turned left directly in front of another driver. The passenger suffered injury.

The at-fault driver’s policy covered his vehicle, and allowed for bodily injury limits of $15,000 per person and $30,000 per crash. The policy contained (as many do) a resident exclusion, which the insurance company argued barred coverage to the roommate because he resided in the same location as the driver.

The passenger filed a lawsuit against both drivers. The insurer informed the at-fault driver it would provide defense, but still asserted the roommate’s injuries were not covered under the policy. It also advised it would seek reimbursement of attorney fees and costs.

At trial, a jury awarded more than $333,000 to the injured passenger.

Soon after, the insurance company filed a complaint requesting declaratory relief with a court order affirming it was valid in denying coverage to the passenger, and seeking reimbursement for legal costs. The insured cross-claimed for bad faith, negligence and breach of contract, while the passenger filed a request to join that cross-claim.

The two testified prior to trial that they were born in Vietnam and had moved to the U.S. separately. They did not know each other well before becoming roommates for two years at a home owned by the driver’s aunt and uncle. They then shared another residence together with four other students, but largely kept to their own circle of friends.

The trial court granted summary judgment to the insurer, indicating the policy clearly and unambiguously excluded coverage to the roommate as a “resident of the same household.”

The insurer then sought reimbursement for $133,000 in legal fees.

Upon appeal, the appellate court noted that while resident restrictions had generally been upheld, with some exceptions, the purpose was to insulate insurers from collusive assertions of liability. Here, the insurer sought approval to extend this exclusion to non-relative residents. The court found no authority on which it based this exclusion of a large group of people solely on their residency status. Further, the court found no legal basis to assume that insurers face the same risk of fraudulent lawsuits when people simply inhabit the same dwelling. College roommates in particular are often complete strangers when they move in together.

Therefore, the interpretation of the insurer was overly-broad and also contrary to public policy.

Because the insurer must no provide coverage, it is not entitled to reimbursement for defense costs, which it was obligated to provide per the terms of the policy for covered accidents.

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

Additional Resources:

Mercury Casualty v. Chu, Sept. 24, 2014, California Court of Appeal, Fourth Appellate District, Division Three

More Blog Entries:

Williams v. GEICO – Auto Insurance Step-Down Provisions Challenged, Sept. 6, 2014, Fort Myers Car Accident Lawyer Blog

Published on:

Courts in general are reticent to hold a company or person accountable for the criminal wrongdoing of someone else. However, there are some exceptions in civil law, most notably with regard to premises liability. In those cases, a property owner can be held liable for injuries sustained in a violent third-party attack on their land if they knew such danger was likely and failed to take steps to mitigate it. laptopwork1

What we haven’t seen – until now – is the assertion that same kind of duty exists to operators of online “property” or websites. It’s unclear how far the courts or legislators may take this duty, but the recent ruling in Doe v. Internet Brands, Inc. is a significant decision in this regard.

The case involves a social networking site geared toward connecting aspiring models to professionals within the industry. When one woman was lured to Miami by two men under the guise of an audition, she was drugged and raped and the encounter was filmed. She later learned the same thing had happened to other women at the hands of the same two men, and further, those who ran the website were aware of this specific threat and did nothing to warn users.

Our Fort Myers personal injury lawyers understand that when she filed a lawsuit, defendants sought to dismiss the case under the Communications Decency Act, codified in 47 U.S.C. 230(c). This statute has been cited in previous cases where plaintiffs sought to hold website providers, such as Craigslist.com or Backpage.com,accountable. In part, this law holds that a website owner/operator is a publisher or speaker of information, and as such, usually can’t be held liable for material posted on that site by somebody else.

So for example, when individuals have posted phony profiles on Craigslist with the underlying motive of robbery, a victim usually won’t have grounds to sue the website for failure to properly vet the listing.

Initially, the trial court agreed the Communications Decency Act applied to the Doe case, and granted defendants’ motion to dismiss.

On appeal, the U.S. Court of Appeals for the Ninth Circuit reversed and remanded, finding the law did not preclude the claim because plaintiff wasn’t seeking to hold defendant responsible as the publisher and speaker of information, Rather, she sought to hold the site responsible for failure to warn.

Although the court did not rule on the viability of that claim, it did find the CDA did not preclude her from proceeding with her lawsuit.

According to court records, the two Miami men (who were later arrested, convicted and sentenced to life in prison) were using the website as a means to identify targets for a rape scheme as early as 2006. They did not post their own profiles, and instead browsed the profiles of models and then used that to contact potential victims by posing as talent scouts.

The defendant in Doe didn’t purchase the site until 2008. It owns approximately 100 other websites as well. At the time of purchase, the previous owners were reportedly aware of this scheme, as several women had already fallen victim to it. Defendant learned of it soon after purchase, and even filed a lawsuit against the previous owner for not disclosing the potential liability stemming from these acts prior to sale.

And yet, users were not made aware of the problem, and the two men out of Miami continued to use the site to perpetuate their criminal acts. The attack that led to this lawsuit happened in February 2011.

California law governs here, as that is where the website is based. Similar to the standard set in Florida, California law imposes a duty to warn a potential victim of third party harm when a person or company has a “special relationship to either the person whose conduct needs to be controlled or to the foreseeable victim of that conduct.”

The rape victim in this case asserts the website had a duty to warn her, and the failure to do so led to her becoming a victim of sexual assault. Following the Ninth Circuit’s review, she is not permitted to proceed with her claim, which injury lawyers across the country will undoubtedly be watching closely for precedent.

Fort Myers personal injury lawyers Chalik & Chalik can be reached at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Doe v. Internet Brands, Inc. , Sept. 17, 2014, U.S. Court of Appeals for the Ninth Circuit

More Blog Entries:

Williams v. GEICO – Auto Insurance Step-Down Provisions Challenged, Sept. 16, 2014, Fort Myers Injury Lawyer Blog

Published on:

When an insurance policy is written such that provisions may be interpreted in more than one way, Florida law requires the interpretation favor the insured.

This is true whether we’re talking about auto insurance or homeowner’s insurance. Recently, the issue was central to the case of Heylin v. Gulfstream Property and Casualty Insurance Co., where a man was suing a homeowner for negligent supervision of his 17-year-old son, who reportedly committed battery on the plaintiff. guncloseup

The question was whether a homeowners’ insurance policy provided liability coverage for a claim of negligent supervision in the underlying intentional tort. The insurer argued intentional torts weren’t covered under the policy, and therefore it had no duty to indemnify the defendant in the underlying lawsuit. However, plaintiff argued the severability clause was ambiguous, and therefore coverage should be rendered.

Although a trial court granted declaratory judgment to the insurer (not a named defendant in the underlying tort), Florida’s Fifth Circuit Court of Appeal reversed, finding language in the severability clause almost identical to an insurance clause in Premier Insurance Co. v. Adams, where the court decided in 1994 the language was ambiguous and therefore the homeowner was entitled to coverage.

Cape Coral injury attorneys know that an allegation of negligent supervision in tort actions often involve employer/employee relationships, but they can sometimes assert harm against the child. For example, if a school fails to protect a child from entering heavy traffic and injury results, negligent supervision may be alleged. Similarly, if an adult fails to properly secure firearms and a child is hurt as a result, a personal injury action alleging negligent supervision by the child’s parents may be brought.

But negligent supervision can also be interpreted in the context of “failure to control.” That is, the adult knew or had reason to know the child had to be controlled (or protected), failed to do so and another person was injured as a direct result.

Although courts won’t generally hold third parties liable for criminal actions of someone else, there are exceptions, and negligent supervision of a minor who causes injury is one of those. In the Heylin case, we don’t know the exact details of the lawsuit, except that the 17-year-old allegedly committed battery against the plaintiff, leading to serious injury and plaintiff asserts negligence against the teen, and also names the parents as defendants for negligent supervision of their child.

In cases where injury occurs on private property, homeowners’ insurance may provide coverage to the victim. Although the insurer in Heylin wasn’t named as a defendant, it sought judgment that it wasn’t required to provide a defense or coverage to the defendant parents/its insured.

In its decision, the trial court cited a similar case from 2003, Hrynkiw v. Allstate Floridian Ins. Co. There, defendant’s minor son allegedly committed intentional battery on plaintiff when he took a pistol belonging to his parents, pointed it at plaintiff’s head at close range and pulled the trigger. Plaintiff survived, but suffered serious injury. Plaintiff alleged he was entitled to recover damages from the parents for failing to safely store the gun in their home and exercise parental control over their son (negligent supervision), given they knew he was on probation for violent behavior against someone else.

When defendants sought coverage from their insurer for their defense, the insurer denied coverage because the underlying tort stemmed from an intentional act. There, the court ruled in favor of the insurer because there was a joint-obligation clause.

However, there was no such language in the present case, and therefore the Fifth District held that decision was not controlling. Rather, the severability clause and intentional act exclusion create ambiguity, which means the court was compelled to rule in favor of the insured as far as coverage.

If you have been a victim of intentional personal injury, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040 to learn more about how we can help.

Additional Resources:

Heylin v. Gulfstream Property and Casualty Insurance Co., Sept. 19, 2014, Florida’s Fifth District Court of Appeal

More Blog Entries:

GEICO v. Rodriguez – Insurer to Pay Sanctions in Pedestrian Injury Claim, Sept. 23, 2014, Cape Coral Personal Injury Lawyer

Published on:

Drivers by the hundreds in Florida are reporting a serious vehicle defect that impairs vision and causes a safety hazard to them and others who share the road: Melting dashboards.cardashboard

Apparently, heat and sunlight (a constant, particularly in South Florida) can result in dashboards that become sticky, shiny and cracked to the point that driving may be hazardous. Manufacturers insist the problem is isolated, but hundreds of complaints have collectively been issued to the makers of the cars, as well as the National Highway Traffic Safety Administration and several other consumer safety advocacy centers.

Beyond being a simple annoyance, drivers say the defect puts them at risk of involvement in a car accident because it makes seeing very difficult, especially in afternoon. No recall has yet been issued, as that usually takes  report of a death or at least an accident. However, drivers are pushing for results in another way: A class action lawsuit has been filed, and we expect further litigation until auto manufacturers act to address this issue.

As our Tampa auto accident attorneys understand it, the lawsuit sites numerous examples of complaints dating back several years, specifically against Toyota, Lexus, Mazda and Nissan dealers. Some owners have indicated automakers have offered to pay half the cost of replacing the dashboard. But there are two problems: One is there is little assurance this will permanently fix the problem, particularly if the manufacturers plan to use the same provider of that part. Secondly, replacement of this part can run sometimes $2,400 or more. So by splitting the cost, the customer still has to pay $1,200 or more – for a vehicle defect they didn’t cause and is potentially very dangerous.

Several Florida media outlets have begun putting pressure on manufacturers and government safety regulators as well. WPTV-Channel 5, the NBC affiliate in West Palm Beach, first conducted an investigation in April, and said since then, complaints about the issue have quadrupled.

Of the complaints made to the NHTSA, one man said his shiny, sticky dashboard made it difficult to see pedestrians. Another in Pembroke Pines wrote the glare led him to  veer off the road and into an embankment. In Orlando, a motorist reported he was involved in a crash there due to glare from a melting dashboard. However, no one was injured. Two others in the Miami-area reported they crashed too.

Other drivers have simply reported the dashboard feels “wet like glue.”

At the Center for Auto Safety, officials are pushing for an official recall. Although government regulators have been quoted as saying the data thus far does not reflect a safety defect trend warranting further action, consumers are hoping the increase in complaints will change that position. They don’t want to wait until someone is killed or seriously injured for someone to take action.

As one driver was quoted as saying, “It would be nice for once to see an auto manufacturer own up to it, fix it.  Don’t wait for people to get hurt. Just fix it.”

Unfortunately, that hasn’t happened yet – and we’re not holding our breath that it will.

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

Additional Resources:

Melting dashboards cause 4 Florida crashes, according to government data, Sept. 3, 2014, By Jenn Strathman, WPTV-Channel 5

Hundreds of drivers say their dashboards are melting and car makers are not issuing a recall, June 16, 2014, By Jackie Callaway, ABC Action News, WFTS Tampa Bay

More Blog Entries:

GEICO v. Rodriguez – Insurer to Pay Sanctions in Pedestrian Injury Claim, Sept. 23, 2014, Tampa Car Accident Lawyer Blog

 

Published on:

Most lawsuits stemming from wrongdoing within the confines of a hospital or other medical treatment center are going to be filed as medical malpractice claims. These lawsuits assert a medical professional, in the course of carrying out his or her professional duties, failed to adhere to the acceptable standard of care for his or her field.hospitalroom

Our Naples injury lawyers know medical malpractice claims demand a higher level of proof – which includes testimony from an expert witness – even before the case makes it to the trial phase. Claims of general negligence, meanwhile, require only that plaintiff show a duty of care was breached and injury resulted from that breach.

Not every injury that occurs in a hospital is the result of medical malpractice, even when it involves a patient. Sometimes, injuries are merely the result of general negligence, and the higher standards of proof are not necessary. Sometimes, this determination is clear-cut. Other times, it isn’t. The recent case of Buck v. Columbia Hospital Corporation of South Broward is an example of the latter.

Recently, Florida’s 4th District Court of Appeal ruled the claim was one of medical negligence, as opposed to simple negligence, as plaintiff alleged. Therefore, the court affirmed dismissal of the case on the grounds plaintiff failed to meet the necessary criteria for a medical negligence claim. According to court records, plaintiff filed the lawsuit as personal representative of a decedent, alleging wrongful death for treatment received in May 2012. The complaint alleged patient was brought to the hospital and admitted for complications related to chronic obstructive pulmonary disease, a condition affecting the lungs.

Two days into her hospital stay, patient was slated to undergo x-rays, and she was transported from her room to the floor where radiology exams were conducted.

Before the x-rays were taken, hospital technicians moved the patient from a gurney onto a table. As they did so, they dropped the patient hard onto the table. The result was she sustained a lumbar spine fracture.

The patient was elderly and had a series of ailments. Because of this, the options for treatment of her broken back were limited. Her overall condition declined rapidly, and she died not long after.

A relative of the woman sued the hospital. Defendant hospital moved to dismiss the complaint on grounds it failed to comply with the pre-lawsuit requirements laid forth in Florida Statute 766.106, which outlines the burden of proof necessary for claims arising from medical negligence.

Plaintiff argued the statute was inapplicable because the complaint arose from general negligence, not medical negligence. The trial court disagreed, and granted defendant’s motion to dismiss. Plaintiff appealed.

The appellate court noted the key to making a differentiation was whether the lawsuit arose out of medical diagnosis, treatment or care. This was the standard set forth in Stubbs v. Surgi-Staff, Inc., by the same court in 2012. Still, the Florida Supreme Court has held pre-lawsuit screening procedures should generally be read in a way that favors court access.

In this case, the injuries were sustained while patient was in the hospital and during the course of treatment, while being transported from gurney to x-ray table by hospital employees. As such, the court indicated hospital employees or agents were engaged in rendering medical care or services as part of a medical procedure. Therefore, the court found, this was a case of medical negligence, not simple negligence.

Call the Naples medical malpractice attorneys at Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Buck v. Columbia Hospital Corporation of South Broward , Sept. 10, 2014, Florida’s 4th District Court of Appeal

More Blog Entries:

Shapria v. Christiana Care Health – Medical Malpractice Based on Lack of Informed Consent, Aug. 31, 2014, Naples Medical Malpractice Lawyer Blog

Published on:

For workers who have fallen ill due to on-the-job asbestos exposure, time is of the essence. Although mesothelioma, caused by breathing asbestos fibers, may not surface until many years later, it’s a terminal cancer that progresses rapidly. It may be possible for workers and/or their families to file claims for workers’ compensation (including death benefits) from an employer, as well as a product liability lawsuit against the makers of the products that caused exposure. oldboilerroom

However, our Sarasota work injury attorneys recognize these cases have to be handled swiftly and carefully. If at all possible, testimony from the worker should be derived as soon as possible. Otherwise, the opportunity might be lost and both cases compromised. A first-hand account of how exposure occurred can be a powerful piece of evidence.

But as a case before the Ohio Supreme Court recently showed, courts are reticent to allow plaintiff testimony in one case to be used in another, unless defendants in both have virtually the same goal. In Burkhart v. H.J. Heinz Co., the widowed plaintiff asserted this was the case in both a workers’ compensation action and a simultaneously occurring product liability lawsuit. The state high court rejected this reasoning, effectively ruining her chances of pursuing the workers’ compensation action.

According to court records, plaintiff’s husband worked for a ketchup-bottling manufacturer for 40 years before retiring in 1986. He was a maintenance employee, and spent most of his time in the boiler room, where he was routinely exposed to pipe insulation containing asbestos.

In the fall of 2005, he was diagnosed with mesothelioma. He filed a product liability action against several asbestos manufacturers. Prior to his May 2007 death, he submitted to a deposition that offered his sworn testimony. It would become a key piece of evidence for two reasons: First, he noted the products with which he came into contact at work, and also indicated his bosses instructed him to save any asbestos that had fallen off the pipes and reinstall it, putting him at particular hazard. Secondly, he died before trial. This would be the only opportunity defense counsel would have to cross-examine him.

After his death, his wife filed an additional action, seeking workers’ compensation death benefits, asserting her husband was exposed to the toxic material at work, it was an occupational disease and she was thus entitled to collect benefits.

In some cases, employers might agree and simply pay benefits. However, the company disputed her claim, and a hearing officer sided with the firm, ruling the widow failed to prove workplace exposure caused his death.

The widow appealed, attaching transcripts and video of the deposition from the product liability lawsuit in which her husband indicated he was repeatedly exposed to asbestos while on the job. He indicated specifics of where he was, where the asbestos was contained, how frequently he came in contact with it. However, the trial court struck the deposition from the record, ruling it was hearsay because defendant had no opportunity to cross-examine the deceased worker.

Widow appealed this finding, indicating the company was essentially a predecessor-in-interest to the product liability case, meaning her husband’s former employer and the asbestos manufacturers had virtually the same goal in litigation, and therefore, there was no need for the employer to cross-examine.

The appellate court reversed, but the state high court reinstated the trial court’s finding. The high court reasoned there were differing interests between defendants in the two cases. In the workers’ compensation case, employer needed to show the toxic exposure didn’t occur at work. In the product liability action, defendants were less concerned whether exposure occurred at decedent’s work, and more concerned with the exact products that caused exposure.

This distinction meant the deposition from the product liability case could not be used as evidence in the workers’ compensation action.

Contact the Sarasota work injury attorneys at Chalik & Chalik by calling (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Burkhart v. H.J. Heinz Co., Sept. 3, 2014, Ohio Supreme Court

More Blog Entries:

Workers’ Compensation vs. Uninsured Motorist Coverage – Navigating the Benefits, Sept. 9, 2014, Sarasota Work Injury Lawyer Blog

Published on:

Florida’s 3rd District Court of Appeals has ruled an insured’s misrepresentations to the court about his fitness as a driver at the time of a serious crash did not void his insurance policy. Therefore, the company is responsible for paying sanctions imposed against defendant by the court in GEICO v. Rodriguez.

Our Fort Myers accident lawyers understand this means the company will be responsible for more than $27,000 in sanctions, on top the $20,000 liability limit already paid. Separate lawsuits have been filed requesting the court to compel the insurer to pay another $750,000 in consent judgments, though those actions are still pending.  drivefastsaab

According to court records, the insurance policy was issued to defendant driver in 2005, indicating a $10,000 liability limit per person and $20,000 per occurrence. Additionally, as is common, the policy covered all court costs caused to an insured in a covered lawsuit (stemming from a crash).

One month after renewal of the policy, the 83-year-old insured was driving a motor vehicle when he struck two pedestrians, resulting in serious injuries. The at-fault driver’s insurer immediately tendered the policy limit amount of $20,000 to the injured parties. However, a dispute arose between the insurer and attorneys for the injured plaintiffs regarding coverage of medical costs. When this dispute could not be resolved out of court, the injured pedestrians filed a negligence lawsuit against the at-fault driver.

Per the terms of the driver’s insurance policy, the insurance company provided legal defense counsel for him. Approximately one year after the lawsuit was filed, the driver was deposed. In his sworn testimony, the driver indicated he had no physical impairments that would prevent him from being a safe driver, and specifically stated he had no significant vision problems.

Medical records later obtained by plaintiffs proved otherwise. In fact, at all times material to the case, the driver was legally blind and had been told by his doctors he should not be driving.

With this information, plaintiffs filed a motion for sanctions against the driver, alleging his misrepresentations amounted to fraud on the court. Plaintiffs also sought coverage of costs and attorney fees incurred.

A hearing was scheduled, but in the interim, the driver died. A relative was substituted in the lawsuit as personal representative of the estate.

Days before the hearing was to proceed, the insurer issued a “reservation of rights” letter, indicating that because of the driver’s misrepresentations, he may no longer be covered under the insurer’s policy for damages, sanctions or fees. The company cited the “Fraud and Misrepresentation” section under its policy.

The hearing proceeded, and the court entered an order granting the injured pedestrians sanctions for a total of $27,000.

After that, the insurance company filed a lawsuit against the estate in federal court, seeking declaration that no insurance coverage was available due to the driver’s misrepresentations to the court.

Meanwhile, the personal representative filed an appeal of the sanctions, which was later dismissed amid a dispute between the representative and an attorney provided by the insurer. The insurer offered several options for a new lawyer, but the personal representative insisted the insurer first retract the reservation of rights if he was to cooperate. The company refused, and the case continued with the personal representative working with his own personal attorney.

Plaintiffs then filed an amended complaint against the estate, this time naming the insurance company, asking that the insurer be required to pay the sanctions. Then, the personal representatives filed a cross-claim against the insurer, seeking declaration that the insurer was required to provide indemnification. The insurance company issued a second “reservation of rights” letter, indicating covered was forfeited because the personal representative breached the policy contract by refusing to work with appointed defense attorney.

Soon after, the injured parties and personal representative reached an agreement for consent judgment in the underlying action claim for $750,000. This balance is still outstanding, with both plaintiffs and the personal representative suing to have the insurer pay.

The injured pedestrians then sought a judgment that would require the insurer to pay the sanctions. The trial court granted it, finding the first reservation of rights was a violation of Florida’s Claims Administrations Statute.

The law says an insurer has to assert a coverage defense within one month of becoming aware of it. This insurer waited one year from the time it learned of the driver’s misrepresentations to the time it issued the first revocation of coverage. Further, because of that first reservation of rights, the personal representative owed no duty to the insurance company that would have required him to use the insurance company’s defense attorney.

The insurer appealed, but the 3rd DCA upheld the ruling. The misrepresentations were made in court, after the crash, not to the insurer at the time of coverage. That meant the false statements in deposition didn’t trigger the policy’s “Fraud and Misrepresentation” provision that would have voided coverage.

The court noted it was sympathetic to the argument that the insurance company shouldn’t be responsible for sanctions imposed by an insured making false statements during discovery. However, because the insurer had a year in which it knew of this problem, controlled the defense at that time and failed to take any action to mitigate the impact, coverage of the final amount was ordered.

Contact our Fort Myers pedestrian accident lawyers at Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

GEICO v. Rodriguez, Sept. 10, 2014, Florida’s Third District Court of Appeal

More Blog Entries:

Spate of Florida Pedestrian Accidents a Reminder to Use Caution, April 21, 2014, Fort Myers Pedestrian Accident Lawyer Blog

Contact Information