South Florida Injury Lawyer Blawg

Court Compels Arbitration in Florida Nursing Home Abuse Case

Published on: July 1, 2020 | by Law Offices of Robert Dixon

Nursing home and long term care facilities throughout the United States frequently rely on arbitration clauses as part of their admission procedures. Arbitration clauses provide the contracting parties a way to resolve disputes without involving the court system. Although, there are some benefits to these clauses, most Florida nursing homes design the agreements to benefit themselves and not the abuse victim or their family.

On its face, arbitration is typically faster and less costly than litigation; however, there are many potential drawbacks associated with these agreements. Arbitration agreements are generally mandatory, and residents often have no choice but to agree if they wish to be admitted to the facility. Further, signing a mandatory agreement often results in the resident giving up their Seventh Amendment right to a jury trial. Additionally, many usual rules of evidence do not apply in these proceedings, and despite being neutral, many arbitrators work to the benefit of the nursing home. Finally, disputes regarding these agreements often result in lengthy legal proceedings, precisely what the clause was designed to avoid.

For example, in a recent opinion, a Florida appellate court reversed a lower court’s ruling and found that a nursing home could compel a plaintiff to arbitrate their lawsuit. In that case, a husband executed a voluntary arbitration agreement on behalf of his wife before her admission to the nursing home. The arbitration agreement included various clauses, including a limitation on damages and a term that if any part of the contract was found to be invalid, then only the unenforceable term would be severed from the agreement.

Court Finds in Favor of Plaintiff in Personal Injury Lawsuit Against Florida County

Published on: July 1, 2020 | by Law Offices of Robert Dixon

Recently a Florida appellate court issued an opinion regarding an accident arising from shoulder injuries a man suffered when he lost control of his bicycle and fell into a drainage ditch. The man filed a personal injury lawsuit against the county alleging that they had actual or constructive knowledge of the unsafe and dangerous ditch, they failed to warn the public of the hazard, and they negligently maintained the ditch.

The plaintiff presented an expert who testified that the shoulder area of the intersection did not have a recovery slope or clear zones for bicyclists to control their bikes safely. Further, during a deposition, the expert stated that the pavement was hazardous because the pavement was deteriorating and cracked. The county moved to dismiss the case, arguing that they were not liable because the plaintiff did not establish causation. They claimed that the plaintiff could not remember how the accident occurred or how he fell into the ditch.

Florida law provides that the party moving for summary judgment must demonstrate that the case presents no genuine issues of material fact, and that they are entitled to judgment as a matter of law. In the context of personal injury cases, the inquiry is not whether the plaintiff has evidence or personal knowledge of facts establishing the at-fault party’s negligence. Further, defendants moving for summary judgment do not meet their burden just by pointing to the plaintiff’s inability to prove exactly what caused their damages. Instead, it is the trier of fact’s job to answer questions regarding causation.

Florida Premises Liability Lawsuits: Non-Delegable Duties and Florida’s Condominium Act

Published on: July 1, 2020 | by Law Offices of Robert Dixon

The Florida District Court of Appeals recently released an opinion addressing whether a property owner breached its non-delegable statutory duty to a person injured on a boat dock. The case arose after a woman suffered injuries on a boat dock outside of her friends’ beach club condominium. The woman filed a lawsuit against the beach club, her friends, and the construction company that was in charge of repairing the dock. She contended that the beach club was liable for breaching its duty to maintain the dock, the construction was responsible for failing to repair the dock, and her friends should have warned her of any hazardous conditions.

In response, the beach club argued the affirmative defense of comparative negligence, alleging that third parties caused the woman’s injuries. However, the plaintiff argued that the beach club was jointly and severally liable for all of her damages, and the defense was inappropriate because the club did not identify the other parties’ negligence.

Florida premises liability law states that property owners must use reasonable care in maintaining their property, and they must warn invitees of concealed or latent dangers that are unknown to the invitee. Moreover, Florida’s Condominium Act provides that condo associations must maintain their common areas in a reasonably safe condition. In this case, the contract between the condo association and owners imposed an additional non-delegable duty, which required the beach club to maintain the dock and other communal areas.

The Burden of Proof in Florida Slip and Fall Lawsuits

Published on: July 1, 2020 | by Law Offices of Robert Dixon

Florida personal injury laws require accident victims to meet strict evidentiary requirements to pursue damages for their injuries. If an accident victim fails to comply with the ever-changing and rigid laws, they risk the dismissal of their case. Florida accident victims must understand the responsibilities and burden of proof that the law imposes. This understanding is especially pertinent in Florida slip and fall cases.

In response to the growing rate of fraudulent personal injury claims, the Florida legislature enacted Florida Statute section 768.0755. This statute shifted the burden of proof from the defendant to the plaintiff. Before this statute, the law required business owners to prove that they were not responsible for the slip and fall. However, now victims must establish that the business had actual or constructive notice of the hazardous condition on their property. Business owners do not need to prove anything or present evidence until the plaintiff meets their burden.

Defendants will often try and discredit a plaintiff’s case during settlement negotiations or through a motion for summary judgment during pretrial proceedings. A motion for summary judgment essentially asks the court to dismiss the claim based on the plaintiff’s failure to present a triable issue. For example, in a recent opinion, a state appellate court reversed a trial court’s denial of a defendant’s motion for summary judgment in a slip and fall case.

Extreme Weather Conditions and Florida Car Accidents

Published on: July 1, 2020 | by Law Offices of Robert Dixon

Many people associate weather-related car accidents with the northeast and other areas that are more likely to experience ice, snow, and sleet. However, poor weather conditions and driver negligence are two of the leading causes of Florida car accidents. Florida’s tropical climate frequently results in unexpectedly heavy rainstorms and torrential downpours. In fact, according to the Federal Highway Administration (FHWA), over 5,000 people die, and almost 450,000 people are injured every year because of weather-related accidents.

For example, recently, a Florida news source reported that a 19-year-old woman died after losing control of her vehicle and crashing into a boulder. Police officials stated that the woman was traveling east on a Florida road when weather conditions caused her to lose control of her sedan. Her vehicle spun clockwise and then swerved off the road. Emergency personnel transported her to a local hospital where she remained in critical condition, before tragically succumbing to her injuries.

Many drivers do not possess the experience and skill necessary to navigate sudden and unexpected inclement weather. Bad weather can prevent drivers from being able to see their surroundings, and their skewed depth perception can increase the chances of a collision. Further, heavy rain makes roadways slick and unsafe, and drivers often face difficulties maneuvering their vehicles during these conditions. Florida drivers should also be sure to keep on top of vehicle maintenance, as worn or damaged tires can cause hydroplaning or sliding.

The Importance of Uninsured/Underinsured Motorist Insurance in Florida Car Accident Cases

Published on: April 8, 2020 | by Law Offices of Robert Dixon

Like most other states, Florida law requires all drivers to purchase a minimum amount of auto insurance. However, the statutory minimum—$10,000 of personal injury protection and $10,000 of property damage protection—are far lower than most other states. However, unlike many other states, Florida law does not require drivers to purchase underinsured or uninsured motorist coverage – also called UIM coverage – for car or truck accidents involving those with inadequate insurance. Understanding the importance of UIM coverage can help Florida drivers make informed choices when purchasing insurance, since insurance disputes are one of the most significant barriers for victims injured in Florida car accidents.

UIM coverage protects individuals when they are hit by a driver who has no car insurance or who does not have enough insurance to pay for the resulting injuries. For example, if Driver A is driving carefully and following the rules of the road but Driver B, driving recklessly, runs a stop sign and crashes into Driver A’s vehicle, Driver B is at fault and may be liable to Driver A for damages. Let’s say that the medical bills Driver A had to pay due this particular crash totaled $30,000, making Driver B liable for $30,000. If Driver B does not have insurance, or only has enough insurance to cover $10,000, Driver A may be stuck with no legal recourse and substantial debt.

This is where UIM insurance is helpful; in this situation, Driver’s A UIM insurance coverage could kick in and cover the rest of the costs, protecting Driver A from going into debt for an accident they did not cause. This example is not just hypothetical; a Georgia appellate court considered almost the exact same situation in a recent opinion. The situation often occurs in Florida as well. In fact, Florida has the second-highest rate of uninsured or underinsured drivers in the country, according to the Insurance Research Council, as well as one of the highest accident rates. Because of this, Florida drivers are strongly encouraged to purchase UIM insurance, even though the state does not require it. Not only can the insurance cover a driver if a tragic, costly accident does occur, but purchasing the insurance can grant peace of mind to drivers unsure how they would pay for the resulting damages if an uninsured or underinsured driver hit them.

Coronavirus and Florida Nursing Homes

Published on: April 8, 2020 | by Law Offices of Robert Dixon

Florida federal and state laws govern nursing home health and safety guidelines and regulations. A majority of the rules are designed to ensure that vulnerable individuals living at these long-term care facilities (LTCF) receive the appropriate and critical care that they deserve. As these facilities become more popular, so do their indiscretions and failure to abide by essential health and safety rules. The Centers for Disease Control (CDC) reports that an estimated 1 to 3 million life-threatening illnesses occur yearly at LTCFs. Many of these illnesses are a result of fast-spreading infections that overcome the residents at these institutions.

Most recently, the spread of COVID-19, or the novel coronavirus, has shed light on how quickly a seemingly common respiratory infection can take over and become deadly. These outbreaks can decimate resident populations in LTCFs. A recent report indicates that LTCFs are the prime place for outbreaks for infectious diseases. Most LTCF residents have chronic conditions and impairments that make them more inclined to develop infections. Many of the residents at these facilities share air, food, water, and medical treatment, which accelerates the introduction and transmission of infectious agents. This, combined with the residents’ length of stay, delayed diagnosis, and inefficient infection control, allow the propagation of these deadly infections. Although, nursing homes rarely supply authorities with the exact rates of disease transmission, the CDC warns that once these pathogens are introduced into an enclosed environment, such as a nursing home, the results can be deadly.

Infectious diseases in these environments are frequent and severe, and as such, the CDC provides facilities with regulations to limit the spread of disease. All medical providers and staff at these facilities must receive proper and ongoing safety and hygiene training. This training provides individuals with crucial skills that are necessary for preventing the spread of disease. It includes, proper handwashing techniques, guidelines for hygiene in-between residents, and how to appropriately wear personal protective equipment. Medical personnel and LTCF staff that fail to abide by these rules may be liable for injuries that their residents suffer.

Florida Court Holds that Insurance Company Must Provide Minimum Uninsured Motorist Coverage, Even to “Collector Vehicles”

Published on: April 8, 2020 | by Law Offices of Robert Dixon

The state’s high court recently issued an opinion in a case that arose out of a fatal Florida motorcycle accident. In this case, the motorcycle driver’s estate filed a claim with his uninsured motorist (UM) benefits under his home insurance company policy issued on a collector vehicle. The insurance company denied coverage, arguing that the policy contained a provision that limited the UM benefits to accidents involving the collector vehicle. The family appealed the ruling to Florida’s Supreme Court, arguing that the insurance policy did not comply with section 627.727, Florida Statutes, which prohibits insurance companies from placing limitations on UM coverage, such as the one at issue.

The insurance company argued that the Florida statute does not apply to specialty insurance policies. However, the plaintiffs contended that the statute provides that insurers may offer non-stacking coverage if the insurer notifies the policyholder of the limitations and executes an approved form expressly electing non-stacking coverage. Further, although the statute provides certain exceptions to the statutory limit, the law states explicitly that, “no motor vehicle liability insurance policy shall be delivered in this state unless UM vehicle coverage is provided.” Moreover, the statute allows for limited UM coverage if the policyholder did not purchase it.

Here, the court found that nothing in the statute excludes collector or antique vehicles, the limiting language in the collector vehicle policy violates the law, and the plaintiff did not reject the UM coverage, and he instead selected stacking UM coverage. Ultimately, because the insurance policy did not comply with Florida’s statutory requirements regarding UM limitations, the court found in favor of the plaintiff.

Florida Appeals Court Addresses Delegable Duties in Truck Accident Case

Published on: April 8, 2020 | by Law Offices of Robert Dixon

Earlier this month, a state appellate court released an opinion in a Florida truck accident case, discussing several issues that commonly arise in cases filed against trucking companies. The appeal arose after a plaintiff suffered injuries when a tire from a trailer became detached and hit the car in which she was a passenger. The plaintiff filed a lawsuit against various parties, including the trucking company and the automotive company that installed the tire. The victim dropped all parties from the claim except the trucking company, alleging that the trucking company owed her a “non-delegable” duty to ensure that their trailer was safe. She argued that this duty included inspecting, maintaining, and repairing the trailer. The woman appealed after the lower court found in favor of the trucking company, holding that the trucking company was not liable for the mechanic’s faulty work.

Under Florida law, parties who hire independent contractors to do work for them may still be liable for injuries when a non-delegable duty is at issue. Challenges frequently arise in these cases because there is no specific definition or criteria for when a duty is delegable. Typically, Florida courts have found that a property owner’s duty of care toward invitees is non-delegable. In contrast, Florida courts have held that a hospital owed no non-delegable duty to a patient after a negligent independent contractor physician caused the patient injuries in the hospital’s emergency room.

In this case, the woman argued that the trucking company should have inspected the mechanic’s work. The trucking company countered that they regularly utilize the mechanic and that it is unrealistic to ask their drivers to engage in lengthy and intensive inspections that they are not trained to do. The woman relied on various Federal Motor Carrier Safety Regulations, which state that motor carriers must inspect all motor vehicles subject to their control. However, the court found that the trucking company did engage in appropriate inspections, and additional checks of the trailer were not necessary. The court, in this case, refrained from imposing blanket liability on trucking companies based on faulty repairs.

What Is Florida’s Best Evidence Rule?

Published on: April 8, 2020 | by Law Offices of Robert Dixon

The judge plays several roles in a Florida personal injury trial. Among a judge’s most important job is to determine which evidence the jury is permitted to consider in coming to its decision. When preparing for trial, parties gather all the evidence they hope to use to support their case. However, not all evidence is admissible for every purpose. Some evidence is categorically prohibited, and other evidence is admissible for limited purposes. The judge decides what evidence the jury will be able to consider, and for what purposes. In making these decisions, judges must follow the Florida Rules of Evidence.

In a recent Florida slip and fall case, the court had occasion to discuss what is called the “best evidence rule.” Under Florida Statutes section 90.954, “except as otherwise provided by statute, an original writing, recording, or photograph is required in order to prove the contents of the writing, recording, or photograph.” Thus, under the rule, if the evidence is a writing, recording, or photograph, only the original source of that evidence can be submitted. In the case mentioned above, the evidence at issue was video surveillance tape from the grocery store where the plaintiff slipped and fell.

Under the best evidence rule, the original source of the evidence is required unless: