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Auto insurance companies are notorious for exploiting every possible opportunity to limit liability and deny coverage to insureds who file a claim. Although courts have been clear that ambiguity in the policy will result in a favorable ruling toward the insured, companies can be successful when the language is forthright. caroncurve

Still, there have been many situations in which insureds believed they were covered when in fact they weren’t.

It’s important to make sure every household driver and vehicle is covered so that there can be no question if and when it becomes necessary to collect on that coverage.

In the recent case of Skaperdas v. Country Cas. Ins. Co., before the Illinois Supreme Court, questions arose about auto insurance coverage as it related to the policy holder’s fiancee and then later, the fiancee’s son. The allegation was the agent working for the insurance company failed in his duty of care to secure the kind of insurance coverage plaintiff had requested. Because plaintiff alleged the insurance company’s employee was to blame for the oversight, he asserted the insurance company should be required to pay under the doctrine of respondeat superior (which holds employers responsible to cover damages for the actions of employees).

According to court records, police holder/plaintiff secured an auto insurance policy through defendant in 2006. Sometime thereafter, his fiancee was involved in a crash while driving one of his vehicles. The insurance company agreed to cover the claim, but required plaintiff to change his policy so that his fiancee would be named an additional driver.

Plaintiff met with the insurance agent to request coverage for his fiancee. Agent prepared the policy, but identified only plaintiff as the named insured. The fiancee was not included as a named insured, though the declarations page did identify a driver “female 30-64.”

After that new policy was issued, the fiancee’s minor son was struck by a vehicle while riding his bicycle and suffered serious injury. The at-fault driver’s policy had a maximum limit of $25,000 – which was not nearly enough to cover the boy’s extensive injuries.

Plaintiffs requested underinsured motorist coverage from their own insurance company. However, that claim was denied on grounds neither the fiancee or her son was listed as a named insured on the policy.

Plaintiff and fiancee, on behalf of herself and son, filed a complaint alleging the insurance agent was negligent in failing to secure the requested insurance coverage, and further the insurance company was responsible for those acts of omission. The agent sought to dismiss the claim on grounds he did not owe a duty of care in procuring requested insurance coverage. The insurer, too, filed a motion to dismiss asserting it was not liable for its agent’s actions because he didn’t owe plaintiffs a duty of care.

Circuit court granted defense motions to dismiss.

However, the appeals court reversed and the state supreme court affirmed. In its reversal, the appeals court noted a statute in state law that specifically says a person must be licensed in order to sell, solicit or negotiate insurance and has a duty to exercise ordinary care in procuring insurance.

When that ruling was appealed to the state supreme court, the state insurance association was allowed to file an amicus curia brief, offering its stance on the matter.

Defendants argued the court should not place a duty of ordinary care on insurance agents because they are contractually bound to sell their own company’s insurance, and the imposition of such a duty would mean, potentially, they could be liable for failing to place coverage with a different company if it was better for the buyer. However, the state supreme court rejected this argument, noting a duty of care wouldn’t require an agent to obtain the “best possible coverage” for a customer, but simply to exercise ordinary care and skill in procuring coverage requested by the insured. If the company doesn’t offer what the customer wants, the agent can simply inform the customer they will need to look elsewhere.

Essentially, the court ruled agents have an ordinary duty of care when a specific request for coverage is made – but not after a vague request for insurance coverage.

If your insurance company is giving you a difficult time in your efforts to collect damages after a crash, contact an experienced car accident lawyer today.

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

Additional Resources:

Skaperdas v. Country Cas. Ins. Co., March 19, 2015, Illinois Supreme Court

More Blog Entries:

Pre-Death Pain and Suffering in Some Wrongful Death Lawsuits, Feb. 21, 2015, Cape Coral Car Accident Lawyer Blog

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Recently, the Fort Myers News-Press delved into the issue of bicycling safety in Southwest Florida – or rather, the great lack thereof for so many riders.

The newspaper chronicled how Florida had the most bicycle deaths of anywhere in the nation last year, and the 1,400 bicycle crashes in Lee and Collier County over the last five years were most commonly caused by careless, drunk or distracted motor vehicle drivers. childbicycle1

There was also ample discussion regarding the vitriol aimed at adult cyclists who share the roadway. That kind of hostility isn’t usually directed at child bicycle riders. However, the sheer number of bicycle crashes requires that child bicyclists be taught the rules of the road, and how to ride defensively. Recently, The News-Press tackled this issue as well in a story called, “Biking With Kids.”

The reporter begins by detailing one Fort Myers mother’s effort to teach her young daughter how to safely bicycle to school. Her mother rides closest to the road, her daughter trailing on her own bicycle a few paces behind. The mother points out every hazard she notes: The mini-van quickly backing out of the driveway, the drivers (including parents) distracted by cell phones, the cars rushing to beat the bikers to the stop sign or those who block the crosswalk.

She comments so many drivers are on their phones and in a hurry. She laments more people don’t give a little more space to cyclists and that there aren’t more bicycling lanes. But she can’t change them all today. So she teachers her daughter how to communicate with those drivers using hand signals. She instructs her 6-year-old daughter on the rules of the road and how to protect herself from careless drivers.

Those skills could well mean life or death for a child rider here in Southwest Florida.

While bicycling has long been viewed as a symbolic measure of childhood freedom in the U.S., there are a lot of parents who are afraid to allow their child to venture to school (or anywhere else) on a bicycle without close supervision.

The Safe Kids coordinator at the Golisano Children’s Hospital of Southwest Florida says this is understandable, considering the number of children being treated for bicycling injuries is more than for any other sport. In 2012 in Lee County, more than 250 children between the ages of 5 and 14 were treated in hospital emergency rooms for bicycling injuries. In Collier County, there were 120 children of that same age during the same time treated for such injuries.

Of course, those children are technically in the minority. Most children aren’t hurt when they take their bicycle out. This is at least in part due to efforts by local school districts, bicycle safety advocates and the state department of transportation to make routes safer. Health classes now offer bicycle training and safety information. Another service offers free helmet fittings. Helmets are proven to reduce the risk of a head injury in children by nearly 90 percent. Florida law requires children under 16 to wear a helmet while bicycling.

Of 11 bicyclists who were killed in Southwest Florida last year, the youngest was a 15-year-old in Cape Coral who was struck during his morning ride to school by a Lee County sheriff’s deputy.

While parents can’t control the actions of drivers, they can commit to modeling good cycling practices for their child, and making sure they appreciate the very real potential for danger.

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

Additional Resources:

Biking With Kids, March 13, 2015, By Janine Zeitlin, The News-Press

More Blog Entries:

Bicycle Deaths in Southwest Florida Spur Calls for Change, March 13, 2015, Fort Myers Bicycle Injury Lawyer Blog

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Two teens who were seriously injured in a horrific Florida parasailing accident have reached a settlement with a number of defendants in the case. parasailing

The Florida injury lawyers of Chalik & Chalik represented one of those teens, and had previously represented the father of a 15-year-old girl killed in a Pompano Beach parasailing accident.

We have led the charge for reform of Florida’s parasailing laws, advocating for and eventually seeing through the passage of state regulation that now requires operators of these ventures to have valid licenses, carry a minimum $1 million insurance policy and adhere to strict guidelines for prohibition of use in windy, stormy conditions.

“Now parasailing operators are aware that they have to follow the regulations and we believe by having these minimal requirements in place, it will require the parasailing operators to be more accountable and make sure they’re operating safely and not doing reckless things,” Debi Chalik told The Sun-Sentinel.

Unfortunately, such changes came too late for two teens from Indiana who suffered life-threatening injuries in a July 2013 parasailing accident in Panama City. Both were 17 when the tow rope snapped and their parasail broke loose from a motor boat. High winds swept them into the concrete side of a hotel balcony before they slammed into power lines and onto the tops of several parked cars in a parking lot below.

Just prior to the accident, a storm was moving in and the girls reported one of the boat operators joked, “Aren’t afraid of a little lightening, are you?”

The confidential settlement agreement our attorneys helped secure is one that will help ensure these young women are financially secure the rest of their lives. Defendants in the case included the parasail company, the rental company, the resort where the girls stayed, the tow rope manufacturer and the distributor of the tow rope.

The settlement, however, is by no means a windfall, considering the extent of injuries each girl suffered. Each suffered brain injuries. One has permanent narrow tunnel vision and double vision. The condition has not been corrected, despite surgery.

Chalik’s client has undergone three skull surgeries, had four bones in her spine fused together. She suffers constant pain.

Both teens were able to graduate from high school, but only after extensive one-on-one tutoring and physical therapy.

The Parasail Safety Council reports that between 1982 and 2012, there have been 130 million parasail harness rides. Of those, 73 resulted in death. It’s estimated there have been thousands of injuries, particularly due to the fact the industry for so long faced no regulations whatsoever.

Some common causes of parasail accidents include:

  • Equipment failure
  • Improper licensing of operator/company
  • Poorly-trained staff of parasail company
  • Failure of parasail company staff to respond appropriately in emergency
  • Parasail company/operators ignore weather warnings/unsafe conditions
  • Parasail isn’t properly monitored
  • Parasail company operates far too closely to beaches, other vessels or nearby buildings

Often, there may be more than one issue at play.

Parasailing should be a safe, fun activity for tourists and local Floridians alike. However, problems arise when these firms cut corners and put profits over people.

Settlements such as the one we helped secure for our injured client drive home the message to parasail operators and equipment manufacturers that cutting corners isn’t an option.

If you have suffered tourist injury in South Florida, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Settlement reached in Florida parasailing accident that injured Indiana teens, March 9, 2015, By Anne Marie Tiernon, WTHR.com

More Blog Entries:

Crusoe v. Davis – Disputed Claims of Fact in Car Accident Lawsuit, March 6, 2015, Florida Injury Lawyer Blog

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A recent car accident lawsuit illustrates the importance of establishing non-economic damages to the court.

In Bean v. Pacific Coast Elevator Corp., a California appellate court upheld $1.3 million in damages for the victim – of which $1.14 million was non-economic damages. Although his medical bills and costs were not all that high, the court ruled the substantial award was not excessive (as defense claimed) given his chronic pain and suffering and loss of life enjoyment.ambulance11

In many cases, non-economic damages will make up the biggest award to which you are entitled. Compensation for medical expenses, for example, typically goes straight to the health care providers (unless the bills have already been paid, or it is for future medical expenses). Lost wages are another type of economic damages, which are clearly measurable.

Non-economic damages go directly to the victim, and they are an effort to make the victim whole, in a sense. If courts only considered economic damages, defendants would pay far less for the same negligence against a stay-at-home mother or a lower-wage worker or a retired veteran than they would to someone who is actively earning large wages.

The loss of life enjoyment, pain and suffering, anxiety and mental anguish, ongoing emotional or debilitating physical ailments, a compromise of self-worth, integrity and dignity – these are all things that don’t have an exact dollar amount attached to them, but nonetheless deserve compensation. That is what non-economic damages in Fort Myers car accident lawsuits are all about.

In Bean, plaintiff was a physically active, socially involved younger man – until the day he was rear-ended by defendant’s employee driver. Plaintiff was in his truck stopped at a red light when defendant’s driver approached from behind and reportedly did not see the plaintiff’s vehicle due to the glare. The resulting impact caused injuries to plaintiff.

Plaintiff was transported to the emergency room, where he underwent a series of imaging tests and was ultimately given pain medicine and sent home. In the days that followed, his condition worsened. He had trouble sleeping, dressing himself and using the bathroom. His neck and back pain became severe. His treatments continued and included spinal surgery, which greatly improved his pain, but it’s still ongoing. It’s also likely he’ll need another surgery within 20 years.

He suffered pain so intense he began to withdraw from his normal activities. He could no longer play baseball, engage in water sports, lift weights or go off-roading, as he once loved to do. He gained weight, due to a newly inactive lifestyle. At trial, his friends would later testify he had become greatly withdrawn. Their relationships with him had suffered. His familial relationships too had diminished. He couldn’t help care for his ailing mother. The constant cycle of pain medication had resulted in tensions with certain relatives. And he could no longer do basic repairs and maintenance in his own home. Even climbing a few stairs had become difficult.

Jurors decided the case in his favor.

Defense appealed on the grounds the non-economic damage award was excessive. Defense asserted the actual injuries weren’t that severe and such an award was unwarranted.

The California Court of Appeal for the Fourth Appellate District, Division One, disagreed. The court noted an award isn’t excessive just because it’s larger than what is ordinarily awarded. Even though it is what would be considered the high end of reasonable damages, the court ruled that taking into account the subjective nature of such damages, the seriousness of plaintiff’s injuries, the considerable loss of life enjoyment and his lengthy expected life span, the verdict was not so large as to shock the conscience and suggest prejudice, passion or corruption by jurors.

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

Additional Resources:

Bean v. Pacific Coast Elevator Corp., March 10, 2015, California Court of Appeal for the Fourth Appellate District, Division One

More Blog Entries:

Midwestern Indem. Co. v. Brooks – UIM Coverage for Bicyclists, March 20, 2015, Fort Myers Car Accident Lawyer Blog

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Florida law is clear that when it comes to ambiguity in auto insurance contracts, the disparity should be interpreted to favor the insured.gavel21

However, as the case of GEICO v. Ryan makes clear, ambiguity doesn’t always go in favor of a crash victim. Here, the ambiguity was contained not in the actual policy, but in a settlement proposal submitted by plaintiff to the insurer.

In a bid to secure uninsured/underinsured motorist coverage from her own insurance company following a crash, plaintiff submitted a proposed settlement that indicated a figure of $50,000, but spelled out the words, “one-hundred thousand dollars.”

That disparity may have cost her the case, according to the Fourth District Court of Appeals, which reversed the trial court judge’s ruling allowing a $200,000 jury verdict to stand. The appeals court ruled the difference created ambiguity and therefore, the settlement was unenforceable.

According to court records, after filing her lawsuit, plaintiff served defendant with a proposal for settlement. The proposed settlement was for $50,000, though the “one-hundred thousand” number was spelled out, followed shortly thereafter with the phrase, “shall not exceed $50,000.”

The case then proceeded to trial, and jurors awarded plaintiff $196,000. Plaintiff sought a motion for attorneys’ fees and costs.

At a hearing on that motion, the insurer argued the terms in the proposal for settlement weren’t consistent, thereby creating a “patent ambiguity,” which is an obvious inconsistency in the language of a written document. Plaintiff shot back that the policy limit for UM/UIM coverage was $50,000 and the company “knew exactly” what the proposal was for.

The trial court weighed the issue, and while noting “a little bit of confusion here,” he ruled the phrase “not exceed $50,000″ clears up that confusion – as the figure appears twice and that was the policy limit. The court therefore ruled the proposed settlement was sufficiently clear and was not susceptible to more than one reasonable interpretation.

Trial court further noted the attorneys discussed the settlement, and the defense attorney was aware of the settlement proposal.

The court then entered a final judgment for plaintiff.

Defendant appealed.

In weighing the case, the 4th DCA noted the 5th DCA’s reversal of an automobile negligence case based on a proposed settlement that was ambiguous. In Stasio v. McManaway, the appellate court in 2006 noted insurer issued a proposal for settlement in which it offered to pay $60,000. However, the release attached to the proposal was for “fifty-nine thousand no/100 dollars.” Plaintiff rejected the proposal. Later at trial, jurors awarded her just $24,000.

Trial court granted attorneys’ fees based on the proposed settlement, indicating despite the typo, the amount was unequivocal. However, the 5th DCA reversed, finding the disparity created a patent ambiguity that required clarification or judicial interpretation.

The court ruled the same was true in this case, and that because all proposals have to be strictly construed, any that are ambiguous are therefore not enforceable. There was no basis in fact or law for trial judge to rule otherwise, appellate court ruled.

What this case drives home is the point that Florida car accident attorneys must be meticulous with every document and every detail in a personal injury case. Accident victims must only place their trust in experienced lawyers with proven success.

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

Additional Resources:

GEICO v. Ryan , March 11, 2015, Florida’s Fourth District Court of Appeal

More Blog Entries:

Midwestern Indem. Co. v. Brooks – UIM Coverage for Bicyclists, March 20, 2015, Fort Myers Car Accident Lawyer Blog

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As the Florida Legislature considers a bill that would enact tougher penalties for accidents resulting in the serious injury or death of a bicyclist, it’s imperative for riders to understand all of their legal options if they are struck. bikelane

The fact is, criminal penalties are next to nothing. Unless the driver was impaired, fled the scene or was recklessly operating the vehicle with total disregard for the safety of others, he or she will likely be penalized with a $1,000 fine. All of that goes to the state of Florida. The cyclist will not be compensated. And really, despite some criminal cases in which restitution is ordered, it’s not the primary goal of the criminal justice system.

If your own personal injury protection doesn’t cover the extent of your injuries, there is the opportunity to collect through the at-fault driver’s insurance company. Unfortunately, Florida has one of the highest rates of uninsured motorists in the country – approximately a quarter don’t have any insurance. Even those who do have coverage might not have near what it will take to cover your costs.

In these cases, you have the option of pursuing uninsured/underinsured motorist coverage through your own carrier. While it’s not mandated for you to have it, your insurance company has to offer it to you, and because it requires a written signature to decline coverage, most people with auto insurance have at least some UM/UIM coverage as a default.

The recent case of Midwestern Indem. Co. v. Brooks is one such case in which a cyclist sought – and received UIM coverage following a crash with a motor vehicle. The exact issue before the U.S. Court of Appeals for the Eight Circuit was whether plaintiff was entitled to stack the coverage on multiple vehicles to reimburse for injuries sustained. The court ruled she could not, and courts in Florida have reached similar conclusions.

In the Midwestern case, plaintiff was riding her bicycle along the street when a driver approached her from behind and negligently struck her. She sustained serious injuries in the bicycle accident.

A short time later, that motorist passed away of unrelated causes, and the cyclist sued his estate in state court. Soon thereafter, the estate settled with plaintiff for decedent’s auto insurance policy limit of $50,000. As part of the settlement, plaintiff agreed not to seek additional damages from decedent’s estate, heirs or insurer. However, plaintiff retained the right to seek additional coverage from her own insurer.

She and her husband had a UIM bodily injury policy that covered five vehicles. The limits on each policy were $100,000 per person and $300,000 per accident. The insurer paid the plaintiff $100,000, noting the UIM per-person policy limit. Plaintiff asserted she was entitled to more by stacking the coverage. However, appellate court ruled the policy language and state law were clear on the fact this was not coverage to which she was entitled.

Bicyclists in Southwest Florida have more reason than most to ensure they have this type of coverage. Florida is No. 1 in the country for the number of bicycle accidents, and Lee County ranks third in the state.

Cyclists are among the most vulnerable users of the road and in an accident, they are more likely than someone in a car to sustain serious injury.

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

Additional Resources:

Midwestern Indem. Co. v. Brooks , March 3, 2015, U.S. Court of Appeals for the Eighth Circuit

More Blog Entries:

Drug-Impaired Driving Is Not Safer Than Drunk Driving, Feb. 17, 2015, Fort Myers Bicycle Accident Attorney Blog

 

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The Second District Court of Appeals recently weighed the case brought by the estate of a man killed when his vehicle became impaled by a concrete pole on the back of a concrete truck that was stationary in a construction zone at the time of the crash.powerlines

Initially, trial court granted summary judgment in favor of plaintiff, and allowed plaintiff permission to seek punitive damages from defendant subcontractor construction company. However, when the 2nd DCA considered L.E. Myers Co. v. Young, it found trial court had erred, reversed and remanded for retrial.

A jury initially awarded $1.2 million in compensatory damages and $9.8 million in punitive damages, but that was later slashed to a little less than $4 million in damages total by the trial judge. Now, all of that is gone and the estate will once again have to argue the case.

According to court records, the case started with a Manatee County construction project in which defendant was subcontracted by Florida Power & Light to replace a number of power poles along the highway. Defendant was responsible for installing four concrete poles, each weighing about 21,000 pounds, along the roadway. Per the contract, defendant was to ensure the work was completed to FPL standards, and also provide any necessary traffic control.

On the day of the crash, defendant’s workers dug a hole for the new pole and a crane operator was nearby, waiting to install the pole, which arrived a short time later on a flat-bed truck.

The driver of the truck was able to maneuver so that the flatbed was totally on the shoulder, but the left rear tire was resting partially over the painted line on the edge of the road.

Although supervisor testified he planned on initiating traffic control once work began to actually lift the pole out of the flatbed, they hadn’t gotten to that point when the crash occurred.

It’s disputed whether warning signs or cones were placed in advance of the construction zone. Supervisor says there were warning signs posted and cones on the road, and there is some evidence to support that assertion, but plaintiffs deny it.

It was at this time decedent was driving just ahead of the construction zone, when he stopped to make a left turn. As he waited for traffic to clear, a driver came tearing down the road behind him at 91 mph in a 40 mph zone. Without braking, the driver slammed into the victim, propelling him forward, spinning him around and slamming him into the edge of the concrete pole on the back of the truck. The victim’s vehicle became impaled with him inside.

He suffered severe injuries as a result of the truck accident, and he died two years later.

His estate sued the other driver, FPL, the subcontractor, the owner of the flatbed truck and the driver of the truck. By the time of trial, all defendants except the subcontractor had been dismissed or settled with the estate.

Plaintiff argued for summary judgment and punitive damages on grounds defendant failed to have a traffic plan in place at the time of the accident, that this was a willful violation of Department of Transportation rules regarding roadside construction and that it attempted to cover up its negligence.

In its reversal opinion, the 2nd DCA noted that the question of whether defendant was engaged in an inherently dangerous activity at the time of the crash was not a matter of law to be decided before trial by a judge, but rather one of fact that should have been decided by a jury.

Further, on the issue of punitive damages, the appellate court found no evidence the conduct of subcontractor was flagrant or grossly negligent or showed a reckless disregard for human life. While there is a reasonable argument to be made about whether traffic controls were adequate, there was simply not enough to suggest punitive damages would be appropriate.

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

Additional Resources:

L.E. Myers Co. v. Young, Feb. 27, 2015, Florida’s Second District Court of Appeal

More Blog Entries:

Hilyer v. Fortier – Default Judgment in Car Accident Lawsuit Set Aside, March 3, 2015, Fort Myers Truck Accident Lawyer Blog

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When it comes to bicyclists in Florida, there is a surprising amount of vitriol expressed by motorists who share the road. There is the notion that somehow, cyclists who are injured or killed deserved their fate because they are most often the ones engaging in careless and/or reckless behavior. bicycle2

But a recent in-depth analysis of South Florida crashes over the last five years by the Fort Myers News-Press did not bear this out. In fact, the newspaper uncovered a number of misconceptions about cycling collisions and deaths – some of which may be perpetuating these negative attitudes and driver aggression on the road.

In a piece entitled, “Florida bike crashes: 7 things that may shock you,” reporters compiled a large amount of data with the aim of exploring the “Why?” of these accidents, and also, the “What can we do?”

The seriousness of this problem can’t be understated. Florida had the most bicyclist deaths of anywhere in the country last year – and it’s been that way for a while. Just in 2014, there were 120 bicyclists killed.

Over the last five years, there have been 1,400 bicycle accidents in Lee and Collier Counties. Lee County was No. 3 in the state for the most bicycle deaths. There were eight last year. Another four have been killed so far this year. Additionally, there were dozens more that resulted in serious injury.

What might surprise you is who is responsible. For one thing, it’s not the cyclists. Usually.

Sure, there are a few cases in which the cyclist was impaired or distracted or simply made an error when navigating the roads. However, the reporters learned by-and-large, it was the motorists who erred.  Drivers of motor vehicles were more than twice as likely as the cyclist to be in the wrong in a bicycle-vehicle crash. Usually, the offense was failure to yield, although there were a fair number of crashes in which careless driving or running a stop sign was the cited cause.

Another misconception is that snowbirds are to blame. Not so, says The News-Press. The drivers most commonly involved in bicycle accidents in Fort Myers were 20-to-24-year-olds. After that, it was 45-to-49-year-olds.

A big part of the problem is that Florida has some of the worst drivers – and driving laws. According to the Florida Highway Patrol, the number of drivers who flee the scene of a crash spiked 50 percent last year in Lee County. In Collier, it was up 41 percent over the course of the last two years. Statewide, hit-and-run collisions have gone up 25 percent.

Beyond that, a January 2015 report from the Advocates for Highway and Auto Safety revealed Florida’s laws pertaining to teen drivers, impaired drivers and distracted drivers are sorely lacking in comparison to other states.

We also must grapple with roads that are too wide, speed limits that are too high and infrastructure that isn’t built for the safety of cyclists – or pedestrians, for that matter. This is compounded by the fact that Florida boasts year-round riding weather, which means on any given day – particularly in the winter – you’re going to see more cyclists in Florida than in other states.

Take, for example, the fact that the fine for committing a moving violation resulting in the serious injury or death of a cyclist is a maximum of $1,000. The actual cost can be sometimes as high as $1,700, once court fees and other add-ons are factored in.

But then consider the economic costs to the community. For a single, non-fatal bicycle accident, medical care costs average about $60,000. That doesn’t include lost wages or property damage.

It’s estimated that motor vehicle accidents cost Floridians $12 billion each year.

The worst part: These crashes are preventable. The best part: They are preventable. But it depends on every motorist out there to operate responsibly, focus their attention on the road and respect all others who share it.

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

Additional Resources:

Florida bike crashes: 7 things that may shock you, March 6, 2015, By Janine Zeitlin, The News-Press

More Blog Entries:

Crusoe v. Davis – Disputed Claims of Fact in a Car Accident Lawsuit, March 6, 2015, Fort Myers Bicycle Accident Attorney Blog

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The entities responsible for the design, construction and maintenance of our roads have a responsibility to make sure they are safe for those who use them. If a roadway is negligently designed, and that defect results in an injury-causing crash, there may be grounds for victim to recover damages. driveway

However, from whom those damages are derived will depend heavily on how long it’s been since that work was finished (if it was finished) and whether the municipality or state had already accepted those designs/construction.

In Florida, we often refer to the “Slavin Doctrine” as the guiding principle. Essentially, if the work has already been accepted by the government (or other entity), then it is the government that can be held responsible – not the contractors who worked to engineer and/or build it.

Each state has its own set of rules for how these kinds of claims must be handled. In Connecticut, for example, there is the municipal highway defect statute. It permits recovery of damages from the government for injuries caused by defective roadways, sidewalks and bridges. The law is founded upon the principle of premises liability, and requires actual or constructive notice of a defect before injury occurred in order for government to be held liable.

In the recent case of Cuozzo v. Orange, a car accident injury lawsuit was brought on this theory of negligence.

According to court records, plaintiff asserted he was a business invitee on private property, which abutted a public highway. The driveway of the property was controlled, maintained, managed operated and/or supervised by defendant city. Plaintiff alleges as he drove his vehicle on the entrance driveway, his vehicle suddenly and without warning came in contact with a large pothole, approximately two feet in diameter, situated about three feet from the driveway’s intersection. As a result of hitting that pothole, plaintiff reportedly suffered personal injury and property damage.

Plaintiff asserted defendant city knew or should have known the pothole existed prior to the incident. Further, plaintiff alleged defendant failed to properly repair/remedy a dangerous and/or unsafe condition on its property.

Defendant argued the complaint should be dismissed because it did not comply with the notice requirements necessary when suing a public entity. Specifically, notice was not given within 90 days of the incident.

Plaintiff countered the driveway itself was not a public road, but rather a private driveway, and thus the notice requirement was inapplicable.

Defendant countered that the pothole was close enough to the travel portion of the road to constitute a highway defect, so the claim should be bound by municipal notice rules as set forth in the municipal highway defect statute.

Appellate court ruled the jurisdictional issue was tied up in the merits of the case and thus, summary judgment was improper, and the case should be decided at trial. The state supreme court on this point affirmed.

The specific issue here is the plain meaning of the word “highway.” It’s customarily understood to mean a a roadway open to the use of the public. That issue was factually in dispute here, and thus, the case was remanded to trial for further consideration.

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

Additional Resources:

Cuozzo v. Orange, March 3, 2015, Connecticut Supreme Court

More Blog Entries:

Pre-Death Pain and Suffering in Some Wrongful Death Lawsuits, Feb. 26, 2015, Fort Myers Car Accident Lawyer Blog

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In many car accident lawsuits, there will be matters of fact about which both sides will disagree. Sometimes, this will be things like whether one vehicle was speeding, whether the other had the right of way, whether one driver was distracted by his cell phone or whether another may have been impaired.cars

Often, there is circumstantial evidence that may be tend to prove one theory or another. Sometimes, third-party eye witness statements can be pertinent, depending on the credibility of those witnesses and other factors. In some cases, there may be photographic, video or digital evidence of relevance.

It’s the job of plaintiff attorneys to explore every possible avenue for clients.

The recent case of Crusoe v. Davis before the Alabama Supreme Court involved two very different accounts of how a 9-year-old girl’s injuries occurred. Ultimately, it came down to the inadmissibility of an accident report. Plaintiff argued it should be allowed, but the state overruled, finding the narrative of the report to be hearsay.

Here was the central dispute, according to court records:

Plaintiff claims that she was southbound, stopped at a red light, with her 9-year-old granddaughter in the front passenger seat. Plaintiff states as she began to turn right at the cross street, a car accelerated out of a parking space on her right and struck the passenger-side door, resulting in injury to her granddaughter, who suffered a broken arm. Plaintiff said she too was injured.

However, driver of the other vehicle testified she was sitting in her parked vehicle with the engine turned off when plaintiff’s car sideswiped her vehicle.

Plaintiff sued defendant for negligence, seeking damages for medical expenses, past and future pain and suffering and lost wages.

After hearing the evidence, jurors returned a verdict for defense. Plaintiff filed a motion for reconsideration, which was denied. She then appealed, arguing trial court erred in refusing to allow the policeman who prepared the accident report to testify. Plaintiff contends that testimony would refute defendant’s assertion the vehicle wasn’t in motion at the time of the car accident.

Appellate court weighed trial court’s decision not to include the accident report/officer testimony.

It’s noteworthy that plaintiff called to testify the responding police officer ,who was a certified accident reconstructionist with 21 years of experience, and who had reconstructed and investigated hundreds of prior accidents. Rather than qualify him as an expert to give his opinion on how the accident occurred, she sought to have his narrative description in the accident report admitted under the admission-by-party-opponent exclusion of the hearsay rule.

Trial court did not allow accident report to be admitted as evidence to be read to the jury or examined by the jury. The narrative and diagram portion of the report was excluded. That report indicated defendant was in a forward motion at the time of crash.

In general, courts will sometimes exclude police accident reports as hearsay and even officer testimony may be limited, except where it pertains to the officer’s firsthand knowledge. The officer didn’t see the crash firsthand, so a good chunk of the report was excluded.

Appellate court ruled there may have been some other exceptions in which the report could have been admitted, but plaintiff did not raise any of those until after trial. Thus, based on the argument plaintiff made, trial court’s refusal to admit the report into evidence was appropriate.

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

Additional Resources:

Crusoe v. Davis , Feb. 20, 2015, Alabama Supreme Court

More Blog Entries:

Florida Texting Law May Finally Get Teeth, Feb. 23, 2015, Cape Coral Car Accident Lawyer Blog

 

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