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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Additional Resources:

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

More Blog Entries:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Additional Resources:

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

More Blog Entries:

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

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

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

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

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

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

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

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

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

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

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

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

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

Additional Resources:

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

More Blog Entries:

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

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

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

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

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

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

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

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

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

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

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

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

Additional Resources:

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

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

More Blog Entries:

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

 

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

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

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

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

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

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

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

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

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

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

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

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

Additional Resources:

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

More Blog Entries:

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

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

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

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

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

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

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

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

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

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

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

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

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

Additional Resources:

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

More Blog Entries:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Additional Resources:

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

More Blog Entries:

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

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In both the criminal and civil justice systems, the term “attorney-client privilege” refers to the notion that when a client consults with his or her attorney about a pending case, the content of those discussions will not be subject to public dissemination.

Recently, a plaintiff in a bad faith insurance claim sought exception to this rule. He asserted that because of the unique circumstances of the case, he stood in the shoes of a defendant in a previous case, and therefore was entitled to information that otherwise would have been covered under attorney-client privilege. While a trial court had granted this request, it was recently reversed by Florida’s Fifth District Court of Appeal in Boozer v. Stalley. $ Car- Ching $

Our Lehigh Acres car accident lawyers recognize this case could have an impact on limiting plaintiff discovery in future bad-faith insurance claims, though a question certified to the Florida Supreme Court could decide that fact more definitively.

This case unfolded several years ago when a young man was seriously injured in a crash involving the original defendant, last name Boozer. For her liability in the crash, Boozer was covered by at least two auto insurance policies, each issued by different branches of Allstate. Collectively, those two policies provided $1.1 million in bodily injury coverage.

A representative for the injured man filed a lawsuit against the at-fault driver. During litigation, Allstate, per the terms of the policy, hired an attorney to represent her. The jury returned an award of $11.1 million. This award was not appealed. However, the insurance company paid only the policy limit of $1.1 million, leaving unsatisfied the remaining portion of the judgment.

After numerous attempts to press the insurer to pay the rest, the plaintiff filed an action for bad faith.

In insurance law, bad faith action by an insurer is when the company violates its duty to act in good faith and in fair dealing with persons they insure or are required to compensate. Insurance companies are required to pay claims properly and promptly, and when they do not, additional legal action may be necessary. In this bad faith action, the plaintiff sought to depose the attorney hired by the insurer to represent the original defendant. His lawyer also subpoenaed the original files in the underlying case.

The attorney and the original defendant sought a protective order, requesting limitations on both the deposition and release of documents to prevent any forced disclosure of information that would fall under attorney-client privilege. The trial court denied the motion, as well as the request to stay the deposition pending a review of the order by appellate courts.

During deposition, the lawyer refused to testify to anything specific regarding his communication with the defendant.

An appeal followed. Plaintiff argued long-standing Florida precedent allowed in the context of a third-party bad faith action for him to stand in the shoes of the original defendant for the purpose of obtaining discovery materials that would have been available  – including any that would be shielded under attorney-client privilege. The appellate court reversed, although certified a question to the state supreme court on the matter.

Previous case law has held that in bad faith insurance lawsuits for failure to settle within policy limits, all materials in the company’s claim file up to the judgment date are attainable, and should be produced when requested during discovery. Further, in Continental Casualty Co. v. Aqua Jet Filer Systems, Inc. in 1993, Florida’s 3rd DCA held that discovery of the claim file and litigation file is discoverable in bad faith claims, even over the objections of insurers regarding attorney-client privilege.

However, the appellate court reasoned, based on other case law, that an individual does not waive or otherwise lose attorney-client privilege just because a third party is authorized to file suit against the person’s insurance company.

For this reason, the court quashed the earlier order compelling deposition and the release of certain documents. However, it certified a question to the Florida Supreme Court, asking whether this was the appropriate choice. The question specifically asks whether decisions made in the 2nd DCA and 4rd DCA  shield communications that are attorney-client privileged in discovery during third-party bad-faith litigation.

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

Additional Resources:

Boozer v. Stalley, Sept. 3, 2014, Florida’s Fifth District Court of Appeal

More Blog Entries:

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

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Florida workers who suffer serious injury on-the-job are entitled to the “exclusive remedy” of workers’ compensation. What this means is that employees can obtain relatively fast coverage for medical bills, lost wages and temporary disability, without having to prove fault. hardworkers

However, our Fort Myers work injury lawyers know there are some instances when a lawsuit against an employer might be a more appropriate avenue for justice. The only time such claims are permissible is when there is proof of culpable negligence on the part of the employer. The threshold for proving culpable negligence is high. It is not enough to show the employer was simply negligent, as you might in most other injury claims. The negligent conduct must rise to the level of “culpable.”

So let’s say a machine leaks oil and causes the worker to fall. That’s unlikely to be considered culpable negligence. Rather, it falls under the umbrella of simple negligence, which, per the 1955 Florida Supreme Court case of Bridges v. Speer, is “that course of conduct which a reasonable and prudent man would know might possibly result in injury to persons.”

While it used to be easier to prove culpable negligence for work injuries, a law passed in 2003 by Gov. Jeb Bush made it more difficult. Under Florida Statute 440.11(1)(b), these three elements be proven:

  • The employer engaged in conduct known, based on similar accidents or explicit warnings specifically identifying the danger, to be virtually certain to result in injury or death to the worker;
  • The employee wasn’t aware of the risk because the hazard was not obvious;
  • The employer intentionally concealed or misrepresented the danger so as to prevent the worker from exercising informed judgment about whether to perform the work.

The recent case of Arvizu v. Heights Roofing Inc. , reviewed by Florida’s 3rd District Court of Appeal, reveals just how difficult these claims can be to prove. The worker died after suffering a fall from a roof. However, the appellate court ruled this alone was not sufficient to support a finding of culpable negligence under Florida law.

Harkening back to the earlier 2003 decision in by the 3rd DCA in Fla. Dep’t. of Transp. v. Julania, the court noted there is no evidence of culpable negligence in cases where a supervisor is merely aware of a poor condition and could have done more to remedy it, but failed. Going back to 1995 with the 5th DCA’s ruling in Mekamy Oaks, Inc. v. Snyder, the court found even the supervisor’s removal of a safety switch did not amount to culpable negligence warranting removal of the exclusive remedy provision of workers’ compensation.

Survivors of those killed at work are entitled to workers’ compensation death benefits. The state allows for up to $150,000 in death benefits, plus $7,500 for funeral expenses. This amount is available if a worker passes immediately, or dies within five years of the accident.

It’s worth noting the exclusive remedy provision does not apply to co-workers or third-parties. So for example, if a worker is on a construction site and injured by the negligence of the premises owner or another contractor, those parties may still be held liable for damages in civil court, in addition to the collection of workers’ compensation benefits.

It’s important to speak with an attorney before agreeing to any type of settlement.

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

Additional Resources:

Arvizu v. Heights Roofing Inc. , Sept. 3, 2014, Florida’s 3rd District Court of Appeal

More Blog Entries:

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

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When a driver is struck by an uninsured or underinsured motorist while also on-the-clock, it can give rise to a unique set of concerns about compensation.

First, any injury arising out of the course of employment is generally compensable by workers’ compensation benefits. But here’s where it gets tricky: If you settle too soon on the issue of worker’s comp on the assumption you will still receive uninsured motorist benefits, you might be in for an unpleasant surprise. Florida law allows your auto insurance provider to set off its obligation not just by what workers’ comp paid you, but by the full amount you were entitled to receive. carcrash1

So by failing to have an experienced Cape Coral injury lawyer review the workers’ compensation settlement offer following a work-related crash, you might be undercutting the subsequent undersinured motorist coverage claim.

The recent case of Harris v. Haynes is one illustration. Before delving into that case, which was weighed by the Tennessee Supreme Court, let’s look more closely at Florida law.

Fla. Stat. 627.727(1) holds that uninsured or underinsured motorist coverage shall not be duplicate the benefits available to an insured under any worker’s compensation law, personal injury protection benefit, disability benefits law or similar law. (emphasis added).

This means your auto insurance provider (or that of your employer) is only required to compensate an insured for damages not covered under workers compensation benefits law. Many people become ensnared by this provision because workers’ compensation benefits tend to be quickly attainable, so long as there is no doubt the injury occurred while the claimant was working. Plaintiffs reason they’ll get a quick pay-out from workers’ compensation, and then obtain the rest through UM coverage. This section of law proves a hurdle.

Of course, the policy has to specifically contain the set0ff language. For example, in the case of USAA Cas. Ins. Co. v. McDermott, Florida’s Second District Court of Appeal held an insurance carrier providing UM coverage for an officer struck by the vehicle of a fleeing suspect was not entitled to a set off of workers’ compensation benefits likely payable in the future because the policy did not contain a specific provision.

The plaintiff in the Harris case was not so fortunate in his pursuit of coverage. Here, a police officer was struck and seriously injured while on patrol. The at-fault driver was not insured, and neither was the owner of the vehicle that hit him.

The officer collected workers’ compensation benefits, and then sued both the vehicle driver and owner, securing a $1.25 million judgment. Because both defendants were not insured, the officer filed a claim with his employer’s liability provider.

However, the provider, Tennessee Risk Management Trust, argued it was not actually an insurance company, and wasn’t bound by normal state laws that might otherwise require it to pay. Rather, the entity was a “risk pool” formed by a coalition of local government entities. The coverage document issued by the group indicated employees who collected workers’ compensation were excluded entirely from receiving uninsured motorist coverage.

The trial court granted summary judgment to the trust, and this decision was affirmed by both the court of appeals and the state supreme court.

A number of governmental agencies in Florida also participate in similar risk pool systems, including some Florida sheriff’s offices (Florida Sheriffs Risk Management Fund). This is all the more reason for workers involved in crashes to seek experienced legal counsel before signing any type of coverage.

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

Additional Resources:

Harris v. Haynes , Aug. 26, 2014, Tennessee Supreme Court

More Blog Entries:

Documentary Highlights Tort Reform, Rise of Mandatory Arbitration, Aug. 25, 2014, Cape Coral Car Accident Lawyer Blog

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