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Lawsuits filed from around the U.S. for damages stemming from purportedly defective air bags manufactured by Takata Corp. have been consolidated into a single multidistrict litigation (MDL) action that will be heard in Florida. airbag2

The airbags, which allegedly explode with excessive force, resulting in serious injury and, in some cases, death, are at the center of approximately 70 possible class action lawsuits.

Many of the lawsuits refer to a loss of economic damages as a result of loss of vehicle value. At this point, none of those pending in the MDL refer to personal injury, but the federal panel allowed those could be added at a later date. As of right now, there are nine personal injury/wrongful death claims pending against the manufacturer as a result of this same problem.

In MDL, lawsuits have all the pre-trial issues decided in one place, and then, if they make it to the trial phase, the cases will individually be re-routed back to the districts in which they were filed originally. The process is intended to ensure the cases move forward expeditiously, where it might otherwise drag on for years, with differing trial courts reaching vastly differing conclusions on important pre-trial matters.

An important legal question expected to be posed is whether the company was aware of the damage and withheld that information from regulators and the public. The firm insists it did not know this was an issue, and in fact is still trying to pinpoint the exact cause.

Our accident attorneys in Fort Myers know that while the alleged defect may not have caused any crashes, it reportedly had the potential to worsen the degree of injuries suffered by vehicle occupants.

As it now stands, some 12 million U.S. vehicles have been recalled, plus another 19 million are affected globally. It’s estimated Takata airbags are installed in some 30 million cars in the U.S. and more than 100 million worldwide. The firm controls about one-fifth of the word’s seat belt and airbag market.

U.S. regulators recently announced that because of the Japanese firm’s refusal to cooperate with the investigation into the defective airbags, the company is to be fined $14,000 daily. The National Highway Traffic Safety Administration asserts the company has refused to respond truthfully or fully regarding requests for information and documentation on the alleged defects. This is information the NHTSA says the company is legally required to provide, and the company’s actions is reportedly putting more people at risk.

For example, while the company did comply in turning over some 2.5 million records, the firm may no effort to help regulators decode the documents to understand their meaning.

The company has disputed the NHTSA’s assertions, countering that it was “surprised” by the agency’s characterization of its actions. The firm has dug in its heels last December when regulators pushed for an expanded recall that would include geographic regions beyond the Southeastern U.S. (Heat is reportedly believed to play a role in the degradation of the product.)

While these airbags have made international headlines recently, the reality is a range of defective auto parts are a major problem resulting in serious injuries and even fatalities. In fact, 2014 had more vehicle recalls and vehicle part recalls than any year in history.

Part of this is regulators and consumers are demanding stronger, faster action from manufacturers. But it also tells us there continue to be major issues with vehicle safety. Consumers have a right to expect the vehicles they drive are safe as purchased. When companies fail in this regard, it can be a form of negligence known as breach of implied warranty or breach of express warranty, depending on the type of defect.

Our experienced attorneys are here to help guide clients through the legal maze.

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

Additional Resources:

Exploding airbag lawsuits headed to federal court in Miami, Feb. 6, 2015, Associated Press

More Blog Entries:

Bush v. Elkins – Parental Liability for Minor Driver Negligence, Feb. 14, 2015, Fort Myers Car Accident Lawyer Blog

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When drivers are involved in a collision with another motorist who lacks insurance or one who doesn’t stop in order to obtain insurance coverage, uninsured motorist coverage can help ensure medical bills and other expenses will be covered. phantomvehicle

However, matters can become more complicated when a crash involves a so-called “phantom” vehicle. This is a situation in which another driver is to blame for a single car crash, even though the vehicles never actually collide. Usually, it involves one vehicle running another off the road.

In these cases, the issue of coverage typically depends on the terms of your insurance policy. Many insurers require that there be some minimal physical contact in order to collect uninsured motorist coverage. Others may require some independent corroboration of a “phantom vehicle” being the cause of the crash.

The recent case of Wadeer v. N.J. Mfrs. Ins. Co., before the New Jersey Supreme Court, dealt with a phantom vehicle claim. According to court records, plaintiff suffered serious injuries in a crash that happened while he was reportedly attempting to avoid an unidentified “phantom” vehicle, which which he never actually collided.

Plaintiff had uninsured motorist coverage through his auto insurer, which provided for up to $100,000 in UM coverage. However, when plaintiff made a claim, his insurer rejected it and made no offers to attempt to settle the claim.

Per the terms of the policy, the two parties proceeded to have the matter handled by a private arbitration panel. That panel determined plaintiff was 30 percent liable for the crash, while phantom vehicle was 70 percent responsible. Therefore, the panel awarded plaintiff $87,500.

The insurer, however, rejected this award and demanded the case go to trial.

Plaintiff’s lawyer notified insurer that by rejecting the arbitration finding and demanding trial, the insurer was acting in bad faith. Plaintiff extended an offer of judgment to insurer for $95,000 in exchange for dropping the matter and not pressing forward with a bad faith insurance claim. (Insurers attempt to avoid bad faith claims, which can result in treble damages.)

Insurer rejected the offer and the case continued to trial. There, a jury held phantom vehicle was 100 percent liable for the crash and awarded plaintiff $210,000 for pain and suffering and nearly $12,200 for lost wages.

Plaintiff argued he should be awarded the full amount, despite policy limits, due to insurer’s bad faith actions, of which it had been placed on notice. Insurer argued the issue was not properly raised during trial.

Judge reduced the jury award to $100,000 (plus attorney’s fees and interest) to comply with policy limits, and judge further found insurer’s actions did not amount to bad faith because insurer had debatable reasons for denying the policy limits. Judgment was affirmed by appellate division.

Plaintiff thereafter filed a separate complaint alleging insurer breached its good faith and fair dealing duties by failing to timely settle the claim.

Insurer moved for summary judgment arguing plaintiff’s claim was barred by the doctrine of res judicata, essentially because it had already been decided by the trial judge. The state supreme court granted review, and agreed the claim was barred under the principle of res judicata because the matter had already been previously raised and fairly litigated by trial court.

Still, the case shows phantom vehicle claims can succeed, and plaintiffs should explore all possible options with an experienced accident lawyer.

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

Additional Resources:

Wadeer v. N.J. Mfrs. Ins. Co., Feb. 18, 2015, New Jersey Supreme Court

More Blog Entries:

Drug-Impaired Driving is Not Safer Than Drunk Driving, Feb. 17, 2015, Fort Myers Car Accident Lawyer Blog

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Florida was one of the last states in the country to pass a bill banning the use of text messaging by drivers. While traffic safety advocates lauded the fact Florida was finally jumping on the bandwagon in 2013, many wondered from the start how truly effective the measure would be. phone

The biggest problem, then as it is now, is the fact texting is a secondary traffic offense. What that means is an officer who spots a driver actively operating a motor vehicle while fiddling with his phone can take virtually no enforcement action unless the officer notices the driver violating some other traffic law.

State lawmakers say that needs to change.

So far this year, legislators have introduced three measures that would strengthen Florida’s texting-while-driving law, making it a primary offense rather than a secondary one. All would allow officers to pull over a texting driver immediately. If the offense occurred near a cross walk or in a school zone, the maximum fine would double.

According to WINK News, there have been very few citations handed out locally for texting-and-driving violations. The Lee County Sheriff’s Office reportedly issued 42 since the law took effect. In Fort Myers, the police department have given out just 35. In Charlotte County, the sheriff’s office has issued just 7.

Police officers say if the offense were deemed primary, the ticket rate would “skyrocket.”

Officers have gotten pretty deft at noticing when someone is texting and driving, particularly at night. Said one lieutenant, “It’s pretty obvious when your face is glowing from your phone.”

Boosting Florida’s anti-texting law to a primary offense might also bolster our standing with the Advocates for Highway and Auto Safety. The consumer and insurance safety group’s most recent report gave Florida the worst rating – red – when it came to legislation intended to keep drivers safe.

Study authors gave states one of three ratings: Green for good, yellow for requiring improvement and red for danger. Florida was one of nine states given a red danger rating, finding the state had just six of the 15 basic traffic safety laws enacted. Several of the missing provisions involved a lack of teen driving restrictions, as well as a lack of tough cell phone safety laws.

These are what the group considers “lethal loopholes.”

Our Cape Coral accident attorneys firmly believe addressing these shortfalls should be a top priority, considering the state tallied more than 2,400 traffic deaths in 2103, resulting in a $12 billion economic loss statewide. That’s in addition to the enormous losses suffered by those seriously and permanently injured by negligent drivers, as well as the devastating impact to survivors left behind.

It’s known at least 85 fatal crashes on Florida roads between 2010 and 2011 were attributable to distracted driving, according to federal figures. The actual number is likely far higher, as not all instances of cell phone distraction are proven. Worse, those figures are believed to have risen since then, as the number of people with phones has increased too.

Unfortunately, Florida has a history of dragging its feet on these kinds of issues. Consider the state seat belt law was enacted as a secondary offense in 1986. It took another 23 years before lawmakers passed a bill making failure to wear a seat belt a primary offense. In the meantime, many people were unnecessarily killed or seriously injured as a result of not buckling up.

We can’ afford to take the same approach here.

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

Additional Resources:

Lawmakers look into strengthening texting and driving law, Jan. 13, 2015, By Megan Contreras, WINK News

More Blog Entries:

Report: Hit-and-Run Crashes Spike in Florida, Jan. 20, 2015, Cape Coral Car Accident Lawyer Blog

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The type of compensation available in a Florida wrongful death lawsuit depends largely on the relationship a survivor had to a decedent. For example a survivor child can be compensated for loss of parental training and guidance, while a spouse can be compensated for loss of society and companionship. longboard

This is in addition to economic damages awarded for things like medical bills, funeral expenses and lost wages.

Another element that should be considered is whether decedent suffered physical or emotional pain prior to death. Like other elements of loss in a wrongful death case, proving this assertion can be legally complex. In some cases, it might require a medical expert witness, while in other situations, a lay witness’s testimony may be sufficient.

Our Fort Myers wrongful death attorneys do understand this is a painful subject for many family members to explore. However, this can be an important aspect of a civil case, and it’s important that defendant(s) be held fully accountable for the pain and suffering they caused.

State laws vary on the application of this element, but Florida recognize it as a compensable loss, and so too does New York, where the recent case of Rice v. Corasanti is unfolding. This was a horrible hit-and-run crash involving an impaired driver that claimed the life of an 18-year-old woman as she made her way home from work at a local pizza joint.

The case has made headlines not only for the fact that the woman sustained severe injuries of which she ultimately perished, but also because the driver was a prominent medical doctor in the region. The victim was reportedly riding her longboard home at the edge of the road when she was struck by a passing vehicle.

Prosecutors would later assert the doctor/driver was texting his then-mistress at the time of the crash. Additionally, it was alleged he was drunk and traveling 15 mph over the posted 35 mph speed limit. The impact of the crash sent the woman flying onto the hood of the car and then launched her more than 150 feet away, into a nearby front lawn.

The driver, who claimed he did not realize he’d struck anything, did not stop. He later turned himself in to authorities after noticing blood on his vehicle. The woman was found by a passerby and transported to a nearby hospital, where she was pronounced dead.

He was ultimately acquitted of more serious charges, but was ordered to serve one year in jail for misdemeanor drunk driving.

At the civil trial, a key question has arisen regarding to what extent decedent was conscious of her injuries and/or felt pain and suffering. While a medical examiner indicated in a formal report the teen most likely died upon impact, the passerby who found the woman refutes this.

In her testimony, she has stated the young woman had a pulse when she was found. Further, she described the girl as having a look of fear and pain frozen on her face. However, this same witness conceded she told police immediately after they arrived that the woman wasn’t moving and there were “no signs of life in her expression.”

She told police she had comforted the woman, but was unsure whether she heard her. However, she would later say she comforted the woman because she seemed to be in fear, and would not have done so if she believed the teen was already deceased.

Her parents are seeking compensation for their daughter’s pre-death pain and suffering. They are also seeking compensation for their loss of companionship, as well as the assumption their daughter would have cared for them into their old age. This latter assertion is also one being challenged by the defense, who are introducing into evidence spotty child support payments by the father and other evidence challenging their closeness as a family.

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

Additional Resources:

Witness at Corasanti wrongful death trial says hit-run victim had pulse when found on lawn, Feb. 9, 2015, By Hames Staas, Buffalo News

More Blog Entries:

Florida Red-Light Running Often Cited in Crashes, Jan. 28, 2015, Fort Myers Car Accident Lawyer Blog

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In recent weeks, headlines from around the country recently blared some version of the following: “Stoned Drivers Are Safer Than Drunk Drivers.”rolledcigarette2

The source was a pair of studies released recently by the National Highway Traffic Safety Administration, which was analyzing the number of drivers with alcohol and/or drugs in their systems and rating the crash risk of each.

But the true message seems lost in translation. First of all, stoned driving isn’t inherently safer than drunk driving. The fact is, marijuana consumption does impair a driver’s reaction time, depth perception and other skills critical driving. The reason why drivers who tested positive for marijuana had a lower crash risk than those who tested positive for alcohol has less to do with which is safer and far more to do with the way these chemicals are processed in our bodies.

Secondly, while the overall number of drunk driving incidents is down, we are seeing an increase in the number of drivers who may be under the influence of prescription drugs or illegal substances.

Florida may have been the first state in the country to reject medical marijuana at the polls, but momentum for the issue remains strong. It’s likely we’re going to see the measure crop up again in 2016, and if it passes, we may well see an even more dramatic spike in the number of drivers who are operating under the influence of marijuana.

The AAA Drugged Driving Summit was held recently in Tampa, and traffic safety advocates and researchers pointed out the concentration of THC in today’s strands of marijuana is roughly 30 percent – compared to a concentration of between 1 and 3 percent in most strands distributed three decades ago. So Americans are not only consuming more, they are becoming more highly intoxicated when they do.

In one of the NHTSA’s studies, it was reported that when adjusted for age, race, gender and alcohol use, drivers who tested positive for marijuana weren’t more likely to crash than those who hadn’t used drugs or alcohol prior to driving. But here’s the problem with this finding – one the NHTSA is quick to note: Marijuana does not exit the body at the same pace as alcohol. The drug can remain in the body for days or even weeks after use. Even high levels of the drug are not necessarily an indication of recent use or impairment. A person who uses the drug regularly would have high levels of the psychoactive chemical in their blood stream, even if he or she never drives impaired.

So in reality, the study doesn’t actually tell us much about how safe it is to drive while stoned because, as the study authors concede, we don’t really know how many of those drivers were impaired and how many were simply users.

There is no denying, however, the risk of alcohol consumption, which researchers noted increased a driver’s crash risk by 700 percent. But alcohol travels through the body at a much faster rate. So when a driver tests positive for a blood-alcohol content of 0.08 or higher, they are more likely than not impaired.

This information does pose some problems for Fort Myers accident attorneys because a driver who is under the influence of marijuana and/or other drugs may attempt to deny impairment by pointing out that toxicity levels don’t necessarily equal intoxication. In criminal cases, the burden of proof threshold on this point is high. It’s not as high for plaintiffs in civil cases, but it is certainly a challenge to overcome – which is why it’s imperative for victims to seek immediate legal counsel from an established firm.

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

Additional Resources:

Stoned drivers are a lot safer than drunk ones, new federal data show, Feb. 9, 2015, By Christopher Ingraham, The Washington Post

More Blog Entries:

Pregnant Women Must Take Extra Precautions, Feb. 10, 2015, Fort Myers Accident Lawyer Blog

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Teenagers are notoriously poor drivers. In fact, per mile driven, those between the ages of 16 and 19 are three times more likely to crash than more experienced drivers. Though young people between the ages of 15 and 24 represent just 14 percent of the U.S. population, the Centers for Disease Control and Prevention reports they account for 30 percent of all injury-causing crashes. OLYMPUS DIGITAL CAMERA

But as a general rule, teenagers don’t have much money. Most still live with their parents or guardians. They may have a part-time job, but usually little to no savings. Because the crash rate among teens is so high, insurance for this group is expensive, so many families tend to purchase the bare minimum coverage.

For those involved in crashes with at-fault teen drivers, there may be a number of options for compensation. Usually, the first place we look is the teen’s own insurer. If the policy does not cover the total extent of damages inflicted, we may look to plaintiff’s own insurer for underinsured/uninsured motorist coverage.

The other source we would explore is the teen driver’s parents. There are usually a couple theories of liability on which we might pursue such action. The first falls under the dangerous instrumentality doctrine. That is, if the vehicle belongs to the parent, the parent – as the owner – is liable for any damages resulting from the negligent operation of that vehicle. Beyond that, an injured party could assert negligent entrustment, particularly if it’s shown parent knew or should have known teen was a dangerous driver likely to cause harm and allowed him or her to use the car anyway.

A parent may have a separate insurance policy for the vehicle. In addition, many people have umbrella insurance policies that may offer extended liability coverage for such instances. Beyond that, plaintiffs can secure compensation payment through garnishment of wages or bank accounts or pursuing other assets.

It’s imperative car accident victims in Fort Myers consult with an experienced lawyer because all potential options for compensation might not be immediately apparent.

In the recent case of Bush v. Elkins, plaintiffs pursued action for serious injuries sustained by an adult passenger of a vehicle driven by an unlicensed 16-year-old driver. The passenger and his family filed a lawsuit against the driver, his mother, the owner of the vehicle, the insurance policy holder, the insurer and the adjuster who handled the claims.

Passenger was ultimately able to secure a settlement against defendants, though his father separately attempted to press forward with claims of infliction of emotional stress and contractual interference. Trial court would later dismiss those claims, and the Alaska Supreme Court recently affirmed that dismissal.

Although the father failed to adequately plead his case (more than likely because he was representing himself), the plaintiff did ultimately secure a fair settlement – even though the teen was not licensed or insured because the car was adequately insured and because his mother could be held vicariously liable.

The CDC has identified eight “danger zones” which represent the leading causes of teen crashes. Those include:

  • Driver inexperience
  • Driving with teen passengers
  • Nighttime driving
  • Failure to use seat belts
  • Distracted driving
  • Drowsy driving
  • Reckless driving
  • Impaired driving

Those injured by teen driver actions should consult with an experienced lawyer.

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

Additional Resources:

Bush v. Elkins, Jan. 23, 2015, Alaska Supreme Court

More Blog Entries:

Gonsalves v. Li – Retrial of Crash Case Following Errors, Jan. 24, 2015, Fort Myers Crash Lawyers

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The father of a kindergartener killed in a horrific school bus accident has been granted a victory by the Louisiana Supreme Court: The right to continue his wrongful death case against the school district and its employee driver.buswalking

In Miller v. Thibeaux, the child’s biological father and mother – who never married – filed separate lawsuits in 2011 seeking wrongful death and survivor compensation. The school district settled the litigation with the child’s mother for the district’s full policy amount of $500,000, in exchange for dismissal of her lawsuit.

Plaintiff father then amended his petition to claim the school’s insurer failed to deal with him fairly by settling its full policy limits on the child’s mother, to the exclusion of his claims.

According to court records, the child was boarding the school bus, his mother looking on, when his arm got caught in the doorway. The driver, with 23 years of experience, did not realize what had happened. The child screamed for help, but his mother could not reach him fast enough. He was dragged for 80 feet before his arm was freed, at which time he fell underneath the bus wheels and was crushed.

He was airlifted to a nearby hospital, where he later died.

Defendants in the case countered father plaintiff’s claims were barred because he failed to comply with the procedural formalities necessary to prove he legally was allowed to bring action as the child’s father. This was despite the father producing the child’s birth certificate with his name on it, as well as child support records. Ultimately, the Louisiana Supreme Court agreed the father had met procedural requirements and could continue with his claim.

Generally, our Fort Myers injury lawyers know such a scenario would not occur in Florida because of our state’s wrongful death statutes. The Florida Wrongful Death Act allows certain parties to stake a claim – including spouses, parents of minor children, children, other dependents and heirs – but only one wrongful death lawsuit can be filed. The person who is entitled to file is the representative of the decedent’s estate, and then any damages recovered go to the estate and are then equitably distributed, based on claimant’s relationship to decedent.

Louisiana law allows for differing procedures.

Occasionally, disputes do arise as to who should be named as the estate representative and who has the right to pursue action.

This is why it’s important to seek counsel from an experienced litigator, one who has practiced in Florida for years and is familiar with state and local statutes, as well as obligations under federal law.

School bus accidents resulting in injury are relatively rare, but they do occur. Your child deserves adequate compensation when a school bus accident results in injury.

The National Highway Traffic Safety Administration reports that from 2003 to 2012, there were 1,222 fatal school-transportation-related crashes in the U.S. resulting in 1,353 deaths. That’s an average of 135 deaths every single year – a small percentage of the 30,000 traffic deaths that occur annually, but significant nonetheless.

Of those who died, 65 percent were struck by the bus and 30 percent by other vehicles.

Occupants of school buses accounted for 8 percent of those killed, while non-occupants – such as pedestrians and bicyclists – accounted for 21 percent. Most were occupants of other vehicles.

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

Additional Resources:

Miller v. Thibeaux, Jan. 28, 2015, Louisiana Supreme Court

More Blog Entries:

Florida Red-Light Running Cited Often in Crashes, Jan. 28, 2015, Fort Myers Car Accident Lawyer Blog

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A car accident is a frightening experience for anyone. For a pregnant woman, the experience can be especially traumatic. Not only must she worry about her own health, the well-being of her unborn child is a top concern.mother1

If you are pregnant and involved in a crash, your No. 1 priority is getting medical attention. This is true even if the crash wasn’t severe and you feel fine. Even mild impact can result in a condition called placental abruption, which can result in premature birth, hemorrhaging and miscarriage.

Injuries sustained by a fetus during a crash are compensable under Florida’s civil code. However, they can be tough to prove, particularly if the effect is somewhat delayed or if the pregnancy was considered high-risk.

Such was the case for plaintiff in Moses v. Drake, a case recently before the Delaware Supreme Court. Records indicate plaintiff was struck by another vehicle while she was 26 weeks pregnant. At the time of the accident, her treating physicians already had her on a plan for management of a high-risk pregnancy.

Five weeks after the crash, she delivered her child prematurely at 31 weeks.

She filed a lawsuit alleging, among other things, that the trauma of the crash caused her to deliver her child early. Premature babies are known to suffer a host of ill effects, and if causation could be proven, the other driver and/or his insurer would have been on the hook to cover neonatal intensive care bills, as well as coverage of any future treatments the child might need.

Initially the trial court granted plaintiff extra time to gather an adequate amount of expert witness testimony that would be necessary to make those claims. Proving causation would have been especially tough in this case, given the already high-risk status of the pregnancy prior to the crash. Of course, it would not have been impossible if it could be shown the impact of the crash exacerbated the risk of premature birth.

Unfortunately, plaintiff failed to meet the agreed-upon deadline for production of adequate expert witness testimony to make this case. Trial court dismissed all claims related to the baby, and plaintiff did not object.

Still, her claim continued solely on the basis of back pain she experienced in the wake of the crash. Another deadline was set for production of expert witness testimony. This time, plaintiff submitted a one-paragraph affidavit from a single physician indicating she had received treatment for back pain and that it was “feasible” the catalyst was the crash.

Defense countered this was not enough to meet the stringent legal standard for causation. Trial court agreed. Physician then twice-revised this statement, once to say the crash “more than likely” caused the injury and the third time to say it was with “reasonable medical certainty” the crash caused the injury. That last submission was the one that would have been accepted by the court. However, it wasn’t submitted until after the deadline. Further, the court found the revisions to be reactionary to previous court orders, rather than indicative of the physician’s actual opinion.

This is where the experience of a seasoned trial attorney can be beneficial. Our injury lawyers know how to meet the legal burden of proof threshold, and such preparation begins well in advance of proceeding to court. We work closely with expert witnesses to ensure your case has the necessary evidence to move forward to the trial phase.

Particularly when it comes to children and new mothers, our commitment to obtaining just compensation remains steadfast.

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

Additional Resources:

Moses v. Drake, Jan. 27, 2015, Delaware Supreme Court

More Blog Entries:

American Heritage v. Morales – Alcohol Exclusions in Insurance, Jan. 30, 2015, Fort Myers Accident Lawyer Blog

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Florida is among the few states that adhere strictly to the legal theory of vicarious liability where vehicle ownership is concerned. That is, motor vehicles are considered a dangerous instrument. As such, vehicle owners who willingly entrust their cars or trucks to another person could be held vicariously liable for injuries or damages that result. trucker

This is often applied to situations in which employees drive an employer’s vehicle. However, it can also be applied to private citizens loaning their cars to friends or family members.

It’s good news for victims of crashes because it grants one more avenue of insurance coverage in the event of a collision or other incident.

This insurance coverage can offer protection in the event of illegal actions resulting in injury or death as well. These might include drunk driving and possibly even intentional injuries caused to another through the use of the vehicle (i.e., running over someone).

However, not all injuries that stem from the use of a car will be covered. Various courts have had different interpretations.

For example, the Ninth Circuit Court of Appeal in 1991 reversed summary judgment favoring the insurer in State Farm v. Davis and Painter. In that case, one man shot another from a vehicle, resulting in injuries. The court was asked to decide whether the shooting resulted from the ownership, maintenance or use of the assailant’s vehicle. The court ruled the shooting did result from use of the vehicle, and therefore refused to absolve the insurer of liability for injuries sustained.

However, the New Jersey Supreme Court ruled 4-3 in 2009 the victim of a drive-by shooting was not entitled to uninsured motorist benefits to cover the cost of medical care. Although the court determined the woman’s injuries qualified as an “accident” under state insurance law, the shooting was not reportedly caused by the “ownership, maintenance, operation or use of an uninsured vehicle.”

More recently, the Rhode Island Supreme Court weighed a similar case, Hough v. McKiernan. In that case, a man driving his grandmother’s vehicle accosted another man walking home from work. After a verbal altercation, the driver got out of the vehicle and assaulted the other man, resulting in serious head and internal injuries requiring extensive surgery and therapy.

While victim did obtain $975,000 in compensation from the driver following a personal injury lawsuit, he then sought to obtain coverage from the (now-deceased) grandmother’s estate on the basis of her ownership of the vehicle.

Court ruled although driver was permitted by owner to drive the vehicle – thus holding her vicariously responsible for any accidents resulting – it was not applicable in this case. While the term “accident” has been interpreted to mean intentional as well as unintentional acts occurring during the use/operation of a vehicle with consent of owner, there must be a causal relationship between use of the vehicle and injuries sustained by plaintiff.

In Hough, the attacker exited the vehicle and carried out an assault on the victim a distance from the vehicle. Therefore, justices ruled, the injuries sustained were unrelated to the operation of the insured vehicle.

The bottom line is that the term “accident” may be interpreted broadly by state courts. Whether insurance may cover your injuries will depend on the state in which the injuries occur, as well as the underlying details. Our experienced accident attorneys can help you determine your best course of action.

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

Additional Resources:

Hough v. McKiernan, Jan. 22, 2015, Rhode Island Supreme Court

More Blog Entries:

Report: Hit-and-Run Crashes Spike in Florida, Jan. 20, 2015, Fort Myers Injury Lawyer Blog

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A number of recent large truck accidents have had devastating consequences to Florida families and communities. semitruck3

Among those incidents reported:

  • A 61-year-old beloved grandmother and high school security guard was killed on a recent Thursday morning when she was struck by a tractor-trailer as she attempted to turn left.
  • A 19-year-old driver was left in critical condition after he was struck by a tractor-trailer on Interstate 95 after his Toyota Corolla struck a concrete barrier and spun into the path of the truck.
  • A 47-year-old passenger of a pickup truck was killed in Leon County on Interstate 10 when a tractor-trailer driver crossed the median and struck the vehicle in which she was riding. The 42-year-old driver of the pickup is in serious condition. The 61-year-old driver of the semi-truck was not injured.

Unfortunately, such incidents are not uncommon on Florida highways. Trucking companies have a responsibility not only to properly vet drivers, but to ensure they adhere to hours-of-service rules to prevent fatigue and are regularly tested for drugs and alcohol.

The National Highway Traffic Safety Administration reports a 4 percent increase in the number of large truck fatal crashes from 2011 to 2012 – from 3,781 to 3,921.

Of those who died in these crashes in 2012, nearly three-fourths were the occupants of other vehicles. Another 10 percent were non-occupants (pedestrians, bicyclists, etc.). Only a few were the occupants of the large trucks.

That same year, there were nearly 105,000 people injured as a result of 77,000 crashes involving large trucks, which represents a staggering 18 percent increase compared to the 88,000 injured in 2011. Here again, the vast majority of those injured were the occupants of the other vehicle.

You may have noted there were 28,000 more injuries than crashes. This has to do with the fact that many of these wrecks involve multiple injuries. In fact, 81 percent of fatal crashes involving large trucks were multiple-vehicle crashes, as compared with 58 percent of fatal crashes involving smaller passenger vehicles.

In nearly one-third of fatal truck crashes, both vehicles sustained impact to the front of the vehicle, indicating a head-on or near-head-on collision.

Most of these wrecks occurred during the week, particularly during rush hour traffic, when roads were more congested.

Industry publication Merchants Fleet Management reported the top challenges to reducing the incidence and cost of truck accidents include:

  • Driver behavior;
  • Comprehensive fleet safety and accident policy establishment
  • Repair management

A study conducted by the Federal Motor Carrier Safety Administration on causation in large truck crashes noted firstly that motor vehicle crashes are complex events and elements that may impact a crash could take place over hours, days or even months prior. They can include driver experience and training, vehicle manufacture and design, highway conditions, traffic signaling, weather conditions and traffic patterns – and that’s all before delving into factors like speeding, fatigue and intoxication.

Still, what they found was that in 87 percent of cases, driver actions were the core cause of crashes. Those factors ranged from falling asleep to medical emergencies to inattention to poor judgment to overcompensation/poor control. Specifically problematic for truckers were fatigue, interruption of traffic flow, unfamiliarity with the roadway and traveling too fast for conditions.

Our experienced Fort Myers truck accident lawyers recognize that because parsing out the causes of these collisions can be a monumental task, survivors and surviving family need a legal advocate examining the evidence on their behalf. This will maximize the possibility of securing compensation for the extensive injuries and losses that often result from these crashes.

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

Additional Resources:

Fatal tractor trailer crash leaves South Florida woman dead, Jan. 23, 2015, WSVN.com, 7 News Miami-Fort Lauderdale

More Blog Entries:

Heco v. Foster Motors – Product Liability in Auto Accident Cases, Jan. 22, 2015, Fort Myers Truck Accident Lawyer Blog

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