In an exciting win for Florida personal injury plaintiffs and their physicians, the state’s Supreme Court issued a recent landmark decision in the case of Worley v. Central Florida Young Men’s Christian Ass’n, Inc. The main issues in Worley were the permissibility of discovery as to who referred a plaintiff to her treating physicians and the financial relationship between those treating physicians and the plaintiff’s attorney. These hotly contested issues permeate many personal injury cases. In a very cogent opinion, the Supreme Court resolved these long-standing conflicts in favor of Florida personal injury plaintiffs by fully restoring the attorney-client privilege and making treating physician financial discovery off-limits.
As the holidays approach, many of us will be attending parties at restaurants and having parties at our homes. At most of these parties, alcoholic beverages will be served. So, what are the legal ramifications for a restaurant or homeowner if someone leaves their property intoxicated and causes serious injuries to themselves or others? Florida’s Dram Shop law, codified as Fla. Stat. § 768.125, provides only very limited scenarios under which a business or homeowner can be held liable for the tortious acts of an intoxicated person such as a drunk driver.
Under Florida’s Dram Shop law, there are only two scenarios where a business or homeowner can be successfully sued for the actions of an intoxicated person. Those scenarios are: (1) the willful and unlawful selling or furnishing of alcoholic beverages to a person not of legal drinking age; and (2) knowingly serving a person alcohol who is “habitually addicted to the use of alcoholic beverages.” Under any other circumstances, according to §768.125, a person or business who provides alcoholic beverages to someone of legal drinking age “shall not thereby become liable for injury or damage” caused by or resulting from that intoxicated person.
The increasing popularity of ride-sharing companies such as Uber and Lyft have given rise to a burgeoning area of law and personal injury claims. Many of us rely on these companies to get us home safely, but sometimes Uber and Lyft drivers can cause automotive crashes. Other times, another driver negligently causes a collision with an Uber or Lyft vehicle. Regardless of fault, there are certain insurance and legal issues that you should be aware of if you are involved in a ride-sharing automotive crash.
Uber and Lyft both market that they have secured high-limit insurance policies for the protection of their passengers. Currently, these two companies advertise that they have $1 million in liability and uninsured motorist coverage per incident (see our website on why you need Uninsured Motorist coverage for your personal automobile policy). This means if you are in a ride-sharing vehicle and that drivers causes a crash, you and all other injured parties have up to $1 million combined in liability coverage for your damages. Likewise, if an uninsured or underinsured driver crashes into your Uber or Lyft vehicle, you (and the other injured persons) will be covered up to $1 million combined from the ride-sharing company.
While $1 million might sound like a lot coverage, what happens if an Uber or Lyft driver causes a crash where there are a multitude of injured people whose aggregate claims are above $1 million? A negligent ride-sharing driver can severely injure or kill passengers in his or her vehicle and other drivers and their passengers. If this tragic event occurs, the injured parties will certainly want to make a claim directly against the ride-sharing company to collect more than the $1 million in insurance coverage. Under the agency law, the ride-sharing companies will likely argue that their drivers are independent contractors and not employees. That would mean under agency law that Uber or Lyft might not be held responsible for the damages.
Drunk driving is a very serious crime that causes horrific car crashes. Often times the drunken driver reaches egregious speeds and does not keep a proper lookout, which causes very heavy impact collisions. Having represented injury victims in Florida for over a decade, I have represented many people who were injured due to drunk and intoxicated drivers. Often times, victims of drunk drivers and their loved ones feel particularly traumatized knowing that someone acted with such reckless indifference towards their safety – that the accident “did not have to happen”.
Florida law recognizes the extremely reckless nature of crashes caused by drunk drivers and offers punitive damages to their victims. Punitive damages, as prescribed by Fla. Stat. §768.72, are a special kind of damages that are not available in most cases. They are designed to punish those who cause injury as a result of a, “conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.” Florida law ensures that drunk drivers are included in
Under Florida Statute §768.79 and Florida Rule of Civil Procedure 1.442, parties in civil lawsuits are entitled to make Proposals for Settlements to the opposition. A Proposal for Settlement involves making a formal offer in writing to the other side to settle a case for a certain dollar amount. If the offeree does not accept the settlement offer within 30 days and the case proceeds to a trial and jury verdict, he or she can be liable for the attorneys’ fees and costs of the prevailing party offeror. The topic of Proposals for Settlement has led to a plethora of appellate decisions regarding their enforceability. This is largely due to the fact that there is no standard form issued by either the Florida Supreme Court of the legislature. This means the parties have to draft their own Proposals for Settlement and the courts have to determine on a case-by-case basis whether they are enforceable as written.
One recent appellate decision on a Proposal for Settlement, Miley v. Nash, provided guidance to practitioners on drafting these documents. In Miley, Martha Nash sued the Defendants for personal injuries that stemmed from an automobile accident. Her husband, Garfield Nash, brought a claim for loss of consortium. The Nash’s alleged that Kyle Miley, while driving a vehicle owned by Glenn Miley, negligently caused the subject car crash.
Prior to trial, the Defendant, Kyle Miley, made a Proposal for Settlement to the Plaintiff, Martha Nash, in the amount of $58,590. The Proposal read that it was, “an attempt to resolve all claims and causes of action resulting from the incident or accident giving rise to this lawsuit brought by Plaintiff Martha Nash against Defendant Kyle Mylie.” The proposal required that Marsha Nash dismiss both Defendants but was completely silent as to Garfield Nash and the loss of consortium claim.
Florida’s Fourth District Court of Appeals recently handed down its decision in Nucci v. Target Corp., a personal injury case wherein discovery of the plaintiff’s Facebook posts was disputed. In Nucci, the plaintiff filed a lawsuit against Target claiming that she suffered permanent injuries due to a slip and fall accident. During the course of discovery, Target requested copies or screenshots of all photographs that the plaintiff posted on Facebook for a period of two years before the accident through the present day. The plaintiff objected to this discovery request, arguing that it was overbroad, burdensome and that it violated the Right of Privacy contained in Art. I, §23 of the Florida Constitution. When the trial court overrued the plaintiff’s objection and ordered her to turn over the Facebook discovery to the Defendant, she appealed.
In upholding the trial court’s order compelling the plaintiff to turn over the Facebook photographs, the Fourth DCA relied on three rationales. First, it held that the plaintiff lacked sufficient grounds to be entitled to certiorari review as overbreadth of discovery alone does not constitute a basis for certiorari. Specifically, the Court held that the plaintiff did not show that there has been a “violation of clearly established principle of law resulting in a miscarriage of justice” which would have entitled her to such review. Second, the Fourth DCA noted that under Fla. R. Civ. P. 1.280 the parties are entitled to a broad scope of discovery and that pictures which individuals choose to put on Facebook and share with family and friends are highly relevant to a fact-finder in a personal injury case. As the jury is charged with the task of examining a plaintiff’s life before and after an accident and awarding damages, the Court noted, “If a photograph is worth a thousand words, there is no better portrayal of what an individual’s life was like than those photographs the individual has chosen to share through social medial before the occurrence of an accident causing injury,” and went to call the photographs “powerfully relevant.” Finally, in examining the plaintiff’s claims that these requests violated the Florida Constitution’s Right of Privacy, the Court noted that the privacy right must be balanced against the need for discovery in a personal injury case. Per the Fourth DCA, when a person chooses to post a picture on Facebook and share it with family and friends there is no real privacy expectation. Even if there is a minimal privacy right, the Court held, it is outweighed by the defendant’s legitimate interest in conducting before-and-after discovery.
Super Bowl Sunday is just around the corner. Many people in the Boca Raton area will be attending a Super Bowl party to watch the game, debate the best commercials, and put in their opinion about the latest New England Patriots cheating scandal. These events are typically accompanied by a lavish spread of food and freely flowing alcohol.
While the Super Bowl doesn’t necessarily rival New Years Eve, Halloween, or July 4th in terms of alcohol consumption, it is most probably in the second tier of heavy drinking events. In fact, the National Highway Traffic Safety Administration (NHTSA) ranks Super Bowl Sunday as one of the most dangerous times of the year for drunk driving fatalities. NHTSA figures for 2012 indicated that 43% of all fatal car accidents on Super Bowl Sunday were caused by drunk driving, while an average day only sees 31% of fatal accidents linked to drunk driving.
According to a report from the National Highway Traffic Safety Administration (NHTSA), the number of auto recalls is expected to increase in 2015. In 2014, more than 60 million vehicles were recalled, nearly doubling the previous record for recalls in a year (30.8 million vehicles were recalled in 2004).
According to the new head of the NHTSA, increased public attention to auto safety defects has played a major role in the dramatic increase in recalls we are currently witnessing. As part of this push to improve vehicle safety, the NHTSA is working on strategies to improve the way they track potential defects and initiate recalls.
The record number of recalls in 2014 was largely due to major ignition switch defects in GM vehicles and defective airbags which impacted a large number of Honda vehicles.
Honda has been fined $70 million for their failure to inform the U.S. government of injuries and warranty claims associated with defects in their vehicles. The auto manufacturer failed to report more than 1,700 injuries and deaths associated with these defects. As part of this settlement, Honda will also need to submit to stricter government oversight in the future.
By law, auto manufacturers are required to report information regarding warranty issues and injury/death reports associated with car accidents. By failing to provide this information, Honda may have impacted the NHTSA’s ability to identify vehicle defects in a timely manner.
These violations were discovered in late 2014 during the investigation into defective air bags which resulted in serious injuries to drivers and passengers across the country.
If you’re planning on driving to a Thanksgiving gathering this week, expect the trip to take longer than usual. According to AAA, there will be about 46.3 million people traveling 50 miles or more over the Thanksgiving weekend. This is the largest traveler volume since 2007.
The AAA report contained the following information:
- This total of 46.3 million people is up 4.2% from 2013
- Approximately 90% of these travelers (41.3 million people) will be driving to their Thanksgiving holiday destination, a 4.3% increase from last year
- The increase in driving is due in part to the fact that Thanksgiving gasprices are the lowest they’ve been in 5 years
- The average distance traveled over Thanksgiving weekend will be 549 miles
In many ways, these figures are a great sign. It means more people will be spending the Thanksgiving holiday with loved ones than in recent years. However, there are also some important things to keep in mind due to the larger than normal volume of traffic.