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Claims of defective roadway design stemming from a traffic accident may be difficult to pursue, in part because they are primarily filed against government agencies, which are typically afforded a host of statutory protections. roadway1

But the recent Arizona Supreme Court case of Glazer v. State shows it is possible to prevail.

In that state there is a statute that protects public entities from injury lawsuits resulting from defective design of public roads if defendant can show the plan or design, when it was created, adhered to the generally accepted engineering or design standards of that time and that the public has been adequately warned of any unreasonable danger. The court in Glazer ruled this affirmative defense can still be used when updates to the road have rendered it substandard.

Even so, defendant government agency in this case still lost its case because it failed to establish every element of defense necessary in the case.

According to court records, a woman was driving eastbound on an interstate highway when she approached a semi-truck. The driver started to pass the truck, but the truck began to move into her lane as she did so. She swerved left to avoid a crash, but lost control of the vehicle, crossed the median into the westbound lanes and slammed head-on into plaintiff’s vehicle. As a result, plaintiff’s husband and daughter were killed and plaintiff was seriously injured.

Subsequently, plaintiff sued the state department of transportation for failure to install a median barrier prior to the accident. ( named as non-parties at fault were the truck driver, who was never identified, and the other vehicle driver.)

State moved for summary judgment on grounds a median barrier was not required when the highway was designed and constructed 40 years earlier. Although the state did show evidence the roadway wasn’t unreasonably dangerous by standards held when it was constructed, the state never addressed the duty to warn requirement.

Meanwhile, plaintiff presented evidence to show that not having a barrier in the median rendered this particular stretch of road unreasonably dangerous.

Trial court denied summary judgment request, finding state law providing government protection didn’t apply because the circumstances at the time of the crash – i.e., the speed, size and volume of traffic on that highway – meant the highway might be rendered unreasonably safe. An expert witness for plaintiff ruled the state should have installed barriers five years prior to the traffic crash, and noted there were at least 10 cross-median accidents in a four-year time frame leading up to this collision; all occurred within an 8-mile stretch of this accident site.

The state countered with nationwide standards that involve analyzing one-mile stretches of highway for crash activity, and asserted this was not a high-crash location.

Jurors decided the case in favor of plaintiff, finding the state 100 percent liable (to the exclusion of the unidentified truck driver and other driver) and awarded plaintiff $7.8 million in damages.

Appellate court affirmed, finding state law didn’t apply because plaintiff’s claim didn’t arise out of state’s failure to install barrier protections in 1967, but rather failure to do so in the 10 years prior to the crash, when material changes in traffic volume occurred.

State supreme court granted review. Court noted while state has a responsibility to keep roadways reasonably safe for travelers, it may be relieved of liability under certain circumstances. One of those is injuries stemming from planning or design for construction or maintenance that adhered to acceptable standards in effect at the time of the design/construction/maintenance.

While rejecting that the standard was inapplicable in this case, state supreme court in a split decision affirmed trial court’s denial of summary judgment and the juror’s findings.

Defense did successfully prove roadway complied with safety standards at the time of construction, but it failed to show that the open median wasn’t unreasonably dangerous and therefore didn’t need a warning or, if an unreasonable danger did exist, that it had provided adequate warnings to road users. Thus, verdict for plaintiff 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:

Glazer v. State , May 8, 2015, Arizona Supreme Court

More Blog Entries:

Auto Repairs Pushed by Insurers Put Customers in Danger, Lawsuit Alleges, May 7, 2015, Fort Myers Traffic Accident Lawyer Blog

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In the days before she was involved in a fatal crash in South Florida, the 22-year-old woman sent a lot of text messages. They included coordinating plans to go to the beach with friends. One exchange centered on different hairstyles she was thinking of trying out. Another noted her desire to stay up late to watch a meteor shower. abottle

But those text messages also reveal another story. The woman was in the midst of a rocky break-up with her boyfriend. The two of them exchanged a number of angry text messages over the course of several days.

And then, on that fateful night in late summer 2013, they exchanged more than 60 messages. The last of those on which she hit “send” stated simply: “Driving drunk woo.. I’ll be dead thanks to you… Lata.”

That message proved prophetic.

Only she was not the one who died. Three minutes after she fired off that message, around 4:45 a.m., her 22-year-old passenger and friend was dead. The driver passed through a red light in the midst of a busy downtown after a night of club hopping. She slammed into a moving truck.

The truck driver was rendered briefly unconscious, though he did recover. But the 22-year-old passenger in the allegedly drunk driver’s vehicle was pronounced dead at the scene. The driver, whose blood-alcohol level registered at 0.178, sustained only minor abrasions.

The driver of the truck would later say that if the vehicle had been anything other than a small smart car, he would have likely been seriously injured.

Those text message exchanges were recently publicly disclosed as evidence in the criminal case against the driver, who is facing charges of DUI manslaughter, vehicular homicide and DUI with damage to a person.

In addition to the criminal case, there is also a civil lawsuit pending. That claim was filed by surviving family members of the victim against not just the driver, but the vehicle sharing company that rented the car to the driver.

While the liability of the driver will likely be a straightforward matter, the case against the rental car company may be tougher to prove, due to the Graves Amendment. This federal law shields vehicle rental companies from liability for actions of their customers. The validity of this measure – even in light of Florida’s strict vehicle owner vicarious liability/dangerous instrumentality doctrine laws – was upheld by the Florida Supreme Court in 2011 and again in 2013.

However, this case will be an interesting challenge because the company model involves allowing drivers to rent vehicles from off the street from unattended locations. The company requires renters scan their license and render payment before taking the vehicle, but there is no requirement to undergo an alcohol breath test. That means drunk drivers can easily rent vehicles off the street.

Plaintiff attorneys say the company should install ignition interlock devices that will render the vehicle immobile if the driver is drunk. Such a move would be relatively inexpensive and would prevent individuals from operating rental vehicles while inebriated.

In any event, this case shows how uninsured/underinsured motorist coverage can be invaluable – even for passengers. Such coverage allows victims to collect from their own insurance company when the at-fault driver or other responsible parties either have no insurance coverage,  lack adequate coverage, or may be somehow shielded from liability.

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

Additional Resources:

“Driving drunk… I’ll be dead thanks to you…” Prophetic texts reveal minutes before fatal Miami car crash, April 30, 2015, Miami Herald

More Blog Entries:

Evans v. McCabe – Dram Shop Liability in DUI Death, April 25, 2015, Fort Myers DUI Injury Lawyer Blog

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When it comes to auto accidents, insurance companies are notorious for being difficult. We work aggressively on behalf of our clients to negotiate reasonable settlement agreements with insurance companies attempting at every turn to mitigate their own liability. adriver

Often this is effective. Other times, cases have to be taken to trial.

And when it comes to trial, an injured victim who can show the insurer acted in bad faith can secure treble damages. That means they may receive triple what they would have otherwise received. The ultimate goal is to protect consumers from unfair practices by insurance companies.

Usually, proving bad faith means the insurer failed to issue or accept a reasonable settlement offer where liability was clear. These cases are mostly third-party claims. That is, in car accidents, it’s the injured person filing a claim against the insurance company that issued coverage to the at-fault driver.

However, there are some cases in which the insured may have a claim of bad faith against the insurer for failing to properly indemnify or inform or otherwise fail to meet obligations due under the terms of the policy. Where a defendant has been found personally liable as a result of bad faith, he or she may confer the right of that bad faith action to the injured party, in exchange for a release of personal liability.

This was exactly what happened in the recent case of Kelly v. State Farm Fire & Casualty Co., before the Louisiana Supreme Court. The case stemmed from a car accident in which insured was making a left turn into the path of plaintiff’s vehicle, causing a collision. Defendant disputed plaintiff’s version of events (which was backed by another witness) and insisted he had the right-of-way.

In either case, plaintiff was injured and spent several days in a local hospital suffering from, among other injuries, a broken femur.

Plaintiff secured immediate legal representation, and attorney sent a letter to insurer requesting the full policy amount. There was some confusion, however, because attorney believed the policy limit was $50,000, when in fact it was $25,000. Plaintiff’s medical bills were about $26,000.

Insurer didn’t respond to this request, but in subsequent discussions with plaintiff attorney, agents agreed to tender the full $25,000. Plaintiff rejected this offer.

Insurer then notified its insured he may want to secure personal legal representation because he could be found personally liable for plaintiff’s injuries. However, insured was never told of the previous exchanges or how much plaintiff’s medical bills were – only $1,000 in excess of the policy limit.

The case went to trial, and defendant was ordered to pay $176,000 in damages. The insurance company tendered $25,000  – the policy limit. Defendant then struck a deal with plaintiff that would release him from liability if he would assign his rights to a bad faith claim against the insurer to the plaintiff. Defendant agreed, and plaintiff filed the bad faith lawsuit.

Insurer sought to have the case dismissed, arguing it couldn’t have acted in bad faith because it never received a formal settlement offer from plaintiff and it wasn’t required to inform its own insured of talks that took place prior to the filing of the lawsuit.

A trial court sided with defense and granted summary judgment. Plaintiff appealed, and appellate court certified two questions to the state supreme court:

  • Could an insurer be held liable for bad faith despite never receiving a formal settlement offer?
  • Could an insurer be liable for misrepresenting or failing to disclose facts not related to the policy’s coverage?

The court answered affirmative on both points, meaning plaintiff is now free to continue pursuit of her bad faith insurance claim.

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

Additional Resources:

Kelly v. State Farm Fire & Casualty Co., May 5, 2015, Louisiana Supreme Court

More Blog Entries:

Hurtado v. Desouza – $1 Million Florida Injury Verdict Reversed, April 29, 2015, Cape Coral Traffic Accident Lawyer Blog

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Investigators have launched a full-scale investigation into a horrific Amtrak train crash in Pennsylvania in which a passenger train derailed, killing at least eight people and injuring more than 200. railroadtracks

While an official report is not likely to be available for weeks or months, initial analysis seems to indicate the train was traveling at more than 100 mph as it rounded a sharp curve where the maximum speed limit is 50 mph. What’s more, the National Highway Transportation Safety Board has revealed the train actually sped up for approximately one minute before the train derailed.

The engineer of the train, a 32-year-old from New York, suffered a concussion in the crash and, according to his lawyer, has no memory of the crash or the events leading up to it. He has given an interview to police and has agreed to be interviewed by the NTSB.

Officials say the speed of the train was 70 mph before the crash, and accelerated to more than 100 mph as it approached the curve. It is unclear at this point, officials said, whether the speed was increased manually by the engineer, whether there was a mechanical failure, or if the increase in speed was somehow tied to an automatic setting.

They also know the engineer did apply the brake just seconds before the derailment occurred, lowering the speed from 106 mph to 102 mph.

The mayor of Philadelphia has been especially harsh with his criticism, saying there is no excuse “unless (the engineer) had a heart attack.”

The NTSB has tempered its response by saying the facts are not all in yet, and it can’t be definitively stated yet whether the engineer was at fault,  whether some other issue was to blame, or whether it may have been a combination of factors. For example, faulty brakes may have been the problem, but investigators won’t know until they can closely examine the remaining parts.

This was reported to be the deadliest U.S. train crash in the past seven years. Six people were pronounced dead at the scene, a seventh later died at the hospital and an eighth was found in the wreckage days after the crash. Initially, more than 50 people were hospitalized. Eleven remain, six in critical condition.

While all are expected to survive, it’s not clear the extent to which they may suffer injuries. It’s likely many will face a long, difficult recovery.

Our Fort Myers injury attorneys know many people rely on public transport systems to get them safely and efficiently to their destination. Whether that’s a train or an airplane or a bus or subway. When that does not happen, victims are entitled to seek compensation for medical bills, lost wages, pain and suffering and other losses. Survivors of those lost may also seek damages for wrongful death, funeral expenses and loss of consortium.

These cases can be extremely complex, and require a legal team with extensive experience and access to effective expert witnesses who can help establish the facts to the satisfaction of the court.

Careful, independent investigations are especially necessary when the transportation system involved is publicly-owned, as civil claims involving the government have special requirements and heightened proof burdens.

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

Additional Resources:

NTSB: Amtrak train sped up for a minute before the crash, May 15, 2015, By Doug Stanglin, USA Today

More Blog Entries:

Car Insurance Companies Sued Over Vehicle Repair Policies, May 14, 2015, Fort Myers Injury Attorney Blog

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Florida has long had a reputation as one of the worst places for bicycling, in terms of safety. Bicyclists face a higher rate of injury and death than anywhere else in the country.carandbike

Unfortunately, per the latest Traffic Safety report from the National Highway Traffic Safety Administration, that is still true. But what’s even worse, even more bicyclists are dying in Florida.

Although the League of American Bicyclists’ most recent “Bicycle Friendliness” rating does point out some of the more positive recent developments for cyclists in Florida, it’s not enough to overcome the concerns posed by the latest NHTSA report.

Nationally, the federal agency’s May 2015 report a total of 743 bicycle deaths in 2013. That is 1 percent higher than what was tallied in 2012, but it’s 10 percent higher than the 2011 final figures and 19 percent higher than the 2010 count.

That’s a nearly 20 percent increase in bicycle accident fatalities nationally in four years. This is extremely alarming.

When we look at Florida, the news doesn’t get better. In 2013, officials reported there were 133 bicyclist deaths. The year before, there were 122 – an increase of 9 percent in a single year. While the percentage of bicycle fatalities in 2012 as compared to the total number of traffic accident deaths was 5 percent, that figure jumped to 5.5 percent in 2013.

There were 2,407 people killed in traffic collisions in Florida that year.

The number of bicycle fatalities in Florida was second only to California, which reported 141 in 2013. However, we have to consider that California has double the number of people Florida does – 38 million compared to 19 million. California’s percentage bicycle accident deaths is 4.7 percent, compared to Florida’s 5.5 percent.

Also worthy of note is the fact that in the last several years, the average age of a bicycle accident victim rose from 39 to 44. That is a testament to the fact that riders are getting older. It used to be that children were primarily the victims of bicycle accidents. As riding becomes increasingly popular among commuters, we are seeing a shift in that regard.

Children 14 and under account for 7 percent of all those killed and 11 percent of all those injured in bicycle traffic accidents nationally.

As far as all bike accidents are concerned, nearly 70 percent occurred in urban areas (as opposed to rural) and most happened at non-intersections. More than half happened between the hours of 3 p.m. and 11:59 p.m.

Still, there may be some encouragement for cyclists in Florida, per The League of American Bicyclists’ latest rating. Florida ranked 24th out of 50th for bike friendliness, and it scored 39 out of 100 this year, slightly better than last year’s 35 out of 100.

The league weighs factors like legislation and enforcement, policies and programs, infrastructure and finding, education and encouragement and evaluation and planning. Florida received positive marks for the fact that it has an active bicycle advocacy group, recently adopted a statewide Complete Streets policy, passed a three-feet passing law for motorists passing bicyclists and spends more than 2 percent of its federal transportation budget on initiatives for bicycle and pedestrian safety.

But that doesn’t go far enough, some advocates say. Real change won’t happen unless we widely enforce the measures we have (something in which Florida is lacking). Additionally, the adoption of a state-wide, all-ages cell phone ban could help significantly curb distracted driving crashes, which disproportionately affect bicyclists.

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

Additional Resources:

Traffic Safety Facts: Bicyclists and Other Cyclists, May 2015, National Highway Traffic Safety Administration

More Blog Entries:

UIM Coverage for Pedestrian Accident, May 1, 2015, Fort Myers Bicycle Accident Attorney Blog

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Following a crash, many vehicles owners file a claim with their insurance company, take the vehicle to a repair shop and expect the repairs will be made using manufacturer parts. carcrash7

However, this is not typically so.

According to a federal lawsuit filed in Florida by numerous auto repair shops, car insurance companies insist repair firms use after-market or ill-fitting parts, ultimately putting consumers at risk by reducing safety. The auto repair shop owners say when they protest these requirements, arguing it won’t keep the driver and passengers safe, the insurance companies threaten or follow through with threats to drop them from a coveted spot as a “preferred provider.”

Additionally, shops are often expected to provide labor at significantly reduced costs, which can inevitably lead to shoddy work, unless the repair shop agrees to take the financial hit in order to stay in the insurance company’s good graces.

Insurance companies deny these claims. After all, they still have to provide coverage for these vehicles and drivers, so they have incentive to make sure they are roadworthy, the people inside are protected and that a future auto accident is prevented.

This argument holds some weight, but we also know auto insurance companies are notorious for cutting corners wherever possible.

The lawsuit involves hundreds of repair shop owners from 36 states as well as dozens of high-profile auto insurance providers, such as Progressive, Geico and State Farm.

What began as a number of different lawsuits filed nationally was recently consolidated in the U.S. District Court for the Middle District of Florida, Orlando Division.

Plaintiffs say there is a time and a place for used parts in repairs. Typically, that time is when consumers need to save expenses on an out-of-pocket repair. But repair facilities need to warn consumers of the risks. In most cases when a used replacement part is installed at the request of an insurance company, the vehicle owner is never informed or given a choice.

Repair shop owners say even when safety concerns are raised, insurers insist after-market parts be used because they won’t pay for newer, pricier parts. This means in many cases, shop owners have no choice but to use substandard repair parts.

These individuals aren’t the only ones who have raised concerns about the auto industry’s practices.

For example, the Mississippi attorney general and a U.S. senator from Connecticut have both asked the U.S. Department of Justice to launch an investigation on this issue. Specifically, they want to know whether insurance companies are violating an agreement signed in 1963 that barred auto insurance companies from corroborating with repair shops to deceive consumers. The repair shops that are deemed “preferred” by insurance companies may not necessarily earn that title because they consistently do the best repairs. Instead, there is concern those “preferred” providers are actually the ones most willing to do the shoddiest work with the cheapest parts.

Plaintiffs assert that while the majority of shop owners are dedicated to safety  – and most will take a financial hit before sending a customer off in an unsafe car – those aren’t choices they should have to make.

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

Additional Resources:

Auto Insurance Giants Accused of Pushing Cheap Repairs, April 17, 2015, By Sarah Cooke, NerdWallet.com

More Blog Entries:

Hurtado v. Desouza – $1 Million Florida Injury Verdict Reversed, April 29, 2015, Fort Myers Auto Accident Lawyer Blog

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Property owners have a responsibility to ensure their premises are safe for lawful guests.gun1

When they are put on notice of a problem or when an issue is foreseeable, they have a responsibility to take reasonable measures to address it. If they do not, they may be held liable for any injuries that result – even if they aren’t directly responsible for it or a criminal act was involved.

That was the case recently in Guo v. TWC Seventy-Eight et al., the case of a community college student and Chinese immigrant to Lehigh Acres who was shot and killed while delivering food to an apartment complex in Fort Myers. The 23-year-old had moved to the U.S. just three years earlier, and was working at his family’s restaurant to put himself through school.

Following the shooting, the victim’s mother filed a wrongful death lawsuit against the Tampa-based apartment complex, alleging negligent security for failure to address dangerous conditions that resulted in her son’s foreseeable death.

Pending a civil trial in Lee County Circuit Court, the case was recently settled out-of-court for $3.25 million.

The case hinged on holding a third-party business liable for the criminal act of someone else. It’s somewhat of a strange legal concept for a lot of people to grasp. But it comes down to the fact that companies that provide housing owe a duty of care to residents and guests to make sure that property is reasonably safe.

What was key to this case was showing a long history of violent crime at the apartment complex that had gone unaddressed. In the two years prior to this victim’s death, there were dozens of reported assaults, batteries, robberies, carjackings and burglaries. There was even a homicide two years prior.

Despite all of of this, the apartment complex operators did nothing to improve safety at the site. They didn’t install security cameras. They didn’t hire extra security guards. They didn’t request additional police patrols. They never warned guests or tenants of criminal attacks.

In fact, unbeknownst to the victim or his family, many other restaurants deemed this particular apartment complex too dangerous for home deliveries.

Defendants, whose website describes the property as “kid-friendly,” argued there was no way they could have foreseen this happening. Off-duty police officers were hired to patrol the site for a handful of hours every day, and defense argued this was sufficient in light of the previously-reported incidents.

Two teenagers were initially arrested in connection with the homicide. A father of one of the teen’s had ordered the food that brought the victim to the site. However, a grand jury declined to indict for lack of evidence.

That made this civil case especially important to the family. Of course, no amount of money would bring back their loved one. But so often in these cases, it’s not about money. It’s about holding people and businesses accountable when they fail to provide reasonable protections to prevent foreseeable harm.

Trial was initially scheduled for March, but was then postponed until April. Settlement talks, which had stalled in the beginning, resumed as the trial date approached and an agreement was reached just days before.

If you have been injured in Fort Myers, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Family of delivery man killed in 2012 to receive $3 million, April 16, 2015, By Melissa Montoya, The News-Press

More Blog Entries:

Cox v. Wal-Mart – Dangerous Condition Forms Basis for Premises Liability Claim, June 24, 2015, Fort Myers Injury Lawyer Blog

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A young woman who Tweeted “2 drunk 2 care” before killing two best friends in a wrong-way crash in South Florida in November 2013 has been sentenced to 24 years in prison. This was just six years shy of the 30-year maximum she faced on the DUI manslaughter charges to which she pleaded guilty in a Broward County court.beers

Defendant was just 20 years-old when she purchased $65 worth of alcohol with co-workers at a local bar before getting behind the wheel of a vehicle. This was despite the fact she was not legally old enough to purchase or consume alcohol. She was arguing with her boyfriend at the time, and, shortly before the crash, Tweeted, “2 drunk 2 care,” reportedly in response to their bickering.

The collision occurred when that same woman drove the wrong direction on the Sawgrass Expressway. At the time, she did not have a valid driver’s license. She was traveling more than 80 mph when she crashed into another vehicle carrying two 21-year-old best friends. They were pronounced dead at the scene around 2 a.m.

The drunk driver, meanwhile, suffered fractures to her tibia, fibula and femur, as well as head injuries. She is now largely confined to a wheelchair. This was the same woman who referred to herself on social media accounts as the “pothead princess.”

When the Florida Highway Patrol tested her blood-alcohol level after the crash, it was 0.15 percent, which is nearly twice the legal limit of 0.08 percent. She also had traces of marijuana in her system as well.

At her sentencing hearing, she told the families she thinks about the two people she killed every day, regretting deeply her decisions that night and wishing she could trade places with them. She told them she would not give them excuses, but did ask them to one day forgive her.

Family members for the women killed also gave wrenching testimony. They wore t-shirts with the victims’ faces. One woman’s father revealed how they waited for hours for answers, and no one would tell them exactly what was going on or whether the women had survived. It wasn’t until 5:30 a.m. that troopers finally informed the family their girls were gone. He broke down in sobs as he relived that moment on the stand.

He then stated simply, “I want her back.”

Both families showed video of the victims. A mother of one of the girl’s described how her “soul is forever broken.” She told defendant from the moment her daughter was born, she fought to keep her safe and protect her. In an instant and with one careless decision by defendant, all of that was destroyed.

In addition to the criminal case, a civil drunk driving lawsuit is pending. It names not only defendant driver, but the bar that sold and served to an underage patron. This is called a dram shop lawsuit.

We recognize no amount of money will bring loved one’s back following a horrific incident like this. The hope is that establishments will take note of how costly this type of litigation is, and do everything possible to avoid liability. The stronger the enforcement policies are against underage drinking-and-driving at Florida bars and restaurants, the less likely we are to see this kind of tragedy on replay.

This is one of the reasons we fight so hard for our clients every day.

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

Additional Resources:

Emotional court scenes as woman, 22, who tweeted ‘2 drunk 2 care’ before killing two best friends in wrong-way crash is sentenced to 24 years in prison, May 4, 2015, By DailyMail.com

More Blog Entries:

1 Million Vehicles Recalled in a Single Week for Safety Issues, May 4, 2015, Cape Coral Drunk Driving Accident Lawyer

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A car accident can be deeply unsettling, even if it’s relatively minor. But it may trouble consumers to know the auto repairs they have done afterward may make them less safe on the road than they were before. airbagdeployed

At least that’s the allegation made by hundreds of auto repair shop owners in 36 states against dozens of automobile insurance companies in a federal lawsuit recently filed in Florida.

The primary issue is the fact that insurers routinely push for repair companies to use cheaper replacement parts, which usually means they are used, after-market parts. They may not be designed exactly to fit the vehicles on which they are being outfitted. In some cases, the lawsuit alleges, the parts are counterfeit or even pulled right from a scrapyard.

The 92-page complaint, filed recently in the U.S. District Court for the Middle District of Florida, Orlando Division, says repair shops that refuse to outfit vehicles with these cheap parts risk being stiffed for the difference or else losing a coveted spot as a large name insurance company’s “preferred” repair site. That means shops that are willing to cut corners with work quality, labor costs and substandard parts are rewarded by insurance companies, while those who consistently do quality work with the right parts are snubbed.

Insurance industry representatives sharply dispute this characterization, saying there is nothing wrong with trying to save consumers’ costs. The industry reportedly saves about $1.5 billion a year by covering the cost for after-market parts, rather than parts from the manufacturer, which can cost 25 percent to 50 percent more. In turn, the industry representatives say, they can keep premiums down by nearly 4 percent.

But that savings is likely diminished if, as the plaintiff auto repair shops allege, the repairs make drivers and passengers less safe. For example, using a lower-grade replacement windshield or one that doesn’t quite fit the make and model of the vehicle on which it’s being installed increases the risk of passenger ejection if the windshield is more likely to shatter or pop out upon impact.

Plaintiffs were quick to say not all direct repair programs are bad, and for the most part, the shops that participate in these programs employ professional, honest places. However, they say the insurers are manipulating these companies, and this must change.

There are numerous, well-tested examples of how use of certain after-market parts could diminish occupant safety. One of those cited in the lawsuit involved test conducted by Ford Motor Corp. that showed when certain off-brand parts (radiator supports and bumper beams) were used to repair a vehicle, they did not resist the force of a crash as well as the manufacturer parts. Ill-fitting replacements also reduced the speed at which airbags were inflated – which could mean the difference between walking away from a traffic collision relatively unscathed or sustaining serious or life-threatening injuries.

This is not in fact the first time such allegations have been made against insurers. U.S. Sen. Richard Blumenthal, D-Conn., wrote a letter asking the Attorney General to launch an investigation into the quality of repairs pushed by auto insurers, which he indicated put consumer’s at risk and was also largely done without their knowledge. Recently, Mississippi’s attorney general added his support for that request.

Before that, the attorney general in Louisiana filed a lawsuit against one large insurance company over similar assertions last year. That case is still pending.

In the meantime, consumers should know they have a right to ask about the replacement parts being used and to request manufacturer replacements. They can make a case for coverage to an insurance company about why that particular part should not be after-market, but they may need to be prepared for the possibility of covering the cost difference. In cases where replacement parts may not keep them as safe in a crash, paying that additional cost now could be well worth it later.

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

Additional Resources:

Auto Insurance Giants Accused of Pushing Cheap Repairs, April 17, 2015, By Sarah Cooke, NerdWallet.com

More Blog Entries:

Fatal Crash at Florida Theme Park Speedway, April 27, 2015, Fort Myers Auto Accident Lawyer Blog

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In a single week recently, nearly 1 million vehicles were recalled in half a dozen recalls issued in a single week – three of those on the same make/model vehicle, the 2014 Ford Fusion. ambulance

Some 520,000 of those popular vehicles reportedly have problems with a steering motor that might result in a loss of power steering. The same problem was reported in Lincoln MKZ vehicles manufactured from 2013 to 2015, and also certain newer-model Ford Edge vehicles.

Manufacturers say so far, they have not been made aware of any auto accidents attributed to this problem, but say a crash could certainly result if the issue occurs while the vehicle is in motion.

On top of that, there were another nearly 400,000 MKZ models and Fusions, built during 2013 and 2014, as well as the 2012-2014 Ford Fiesta, that were recalled for faulty latches that can result in doors swinging open unexpectedly. That issue has been noted by Ford with at least two customers. One said the door hit another vehicle while it was parked, and another said the door bounced back when he tried to close it.

In another recall, 2014 Ford Fusions were also the subject, as were Edges, Fiestas and Transit Connects for problems with a fuel pump that can result in pump seizure and subsequently a vehicle stalling while in motion. Here again,this could potentially result in a serious safety problem. At least one crash has been reported in connection with this issue, though some 50,000 vehicles are subject to recall.

It’s the same kind of stalling-mid-motion issue that resulted in General Motors’ recall for defective ignition witches that, over the course of a decade, resulted at least hundreds of wrecks and has so far been linked to 90 fatalities.

That’s likely why the National Highway Traffic Safety Administration issued its own warning to consumers, encouraging them to get their vehicles serviced as soon as possible because of the risk.

This recall involves far fewer vehicles than the GM recall, but the issues are significant nonetheless.

The final recall involves fewer than 100 Ford F-150 trucks due to a problem with the underbody of the trucks that can result in a heightened chance of a fire. There are no reports of injuries or accidents associated with that issue, but again, there is the potential.

These recalls just involve auto manufacturers. A number of other recalls in recent weeks have stemmed from problems discovered with tires (400 Alliance Tire Americas tires) as well as five child safety seats with reportedly defective buckles. Brands of child seat makers affected include Evanflo, Recaro, Graco and Baby Trend.

Last year, there were a total of 64 million vehicles recalled in the U.S. That was a record year, involving more cars, trucks, vans and other vehicles than any other prior year since federal regulators started keeping tabs.

On one hand, this is good news because it tells us auto manufacturers and auto part manufacturers may finally be taking seriously the obligation to warn the public of potential safety shortfalls. For a long time, this wasn’t happening. Just take, for example, the faulty ignition switch problem, for which a recall took years, despite the company’s knowledge of the problem.

However, the increasing number of recalls tells us vehicles and auto parts still aren’t being manufactured up to the full safety standards, and that’s deeply concerning.

The issuance of a recall does not absolve an auto maker or auto parts maker of liability in the event injury results from a defect.

If you suspect a vehicle defect may have caused your accident and/or injury, or perhaps even contributed to it, it’s imperative to contact an experienced legal team as soon as possible.

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

Additional Resources:

2014 Ford Fusion recalled three times in a week, April 30, 2015, By Chris Isidore, CNNMoney

More Blog Entries:

Truck Driver Awarded Workers’ Compensation After Falling Asleep at the Wheel, April 4, 2015, Fort Myers Injury Attorney Blog

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