This could end up being the case in Laylock v. TMS Logistics, where plaintiff was awarded $3.5 million in a trucking accident, a damage award that might now be in jeopardy if juror misconduct requires a new trial. Plaintiff filed a certiorari petition (request for review) from Florida’s 1st District Court of Appeal to halt the juror interviews into the alleged misconduct before they begin. The defendant sought the interviews in connection with its pending motion for a new trial.

However, the appellate court ruled that because any harm plaintiff might suffer could be remedied on appeal, his petition was dismissed. That means the juror interviews may proceed, which could open the door for a new trial. 

According to court records, plaintiff suffered serious injuries when a driver working operating a tractor-trailer for defendant company allegedly crashed into plaintiff. The case went to trial in 2015, three years after the collision, with jurors assigning defendant 95 percent damages and plaintiff 5 percent damages and awarding plaintiff $3.5 million, which included compensation for medical bills as well as pain and suffering.

However, at a hearing just a few days after the verdict was reached, the trial court made an announcement that a juror had contacted the court and spoke to the judge’s assistant. At that time, defendant announced one of its lawyers also had spoken to a juror. The attorney in question said two jurors approached her as she left the courthouse and offered their general opinions on the case, along with specific details on jury deliberations. One juror repeated several times that jurors agreed not to follow the court’s instructions. It was at that time the company sought more information.

Plaintiff objected, but the court ordered a limited interview of one of the jurors. After that interview was conducted, the trial court weighed defendant’s motion for more interviews and ultimately found the defendant’s sworn factual allegations and testimony were evidence of juror misconduct worthy of further review. The misconduct, if proven, would require a new trial, unless plaintiff is able to show there was no reasonable possibility the alleged misconduct affected the verdict. The court then scheduled interviews with the five remaining jurors. This was when plaintiff filed his write of certiorari.

The appellate court dismissed the petition because it found plaintiff’s argument for irreparable harm to be lacking. Plaintiff’s argument that these interviews would needlessly extend litigation required little discussion because the Florida Supreme Court ruled in 2013 that continuation of litigation – including time, costs and effort – does not constitute an irreparable harm. The court rejected the other arguments too, including the violation of the sanctity of the jury, though it certified a conflict with the 2nd DCA’s 1986 ruling in Preast v. Amica Mutual Insurance Co. This means we could see this issue come up before the Florida Supreme Court.

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

Additional Resources:

Laylock v. TMS Logistics, Jan. 19, 2017, Florida’s First District Court of Appeal

More Blog Entries:

Truck Accidents to Rise as Poor Road Conditions Persist, Dec. 16, 2017, Miami Truck Accident Lawyer Blog

Not all states allow additur. Florida Does. Here, F.S. 768.74 is the statute that allows the judge to either reduce or increase damages.

The recent car accident lawsuit of GEICO v. Isaacs, Florida’s Fourth District Court of Appeal weighed a request for remittitur by the liable auto insurer. According to court records, plaintiff suffered injuries due to a traffic accident. She filed a lawsuit against GEICO, which was her uninsured motorist carrier. (One in four drivers in Florida has no insurance. Even those who do have insurance may not have any bodily injury liability, as it’s only recommended, and not required by law. That means the best protection people have is a solid UM/UIM policy. Getting the insurer to pay up, however, can be a legal nightmare.)

At trial, plaintiff was awarded a total of $750,000 for medical expenses and pain and suffering. The court then issued a reduction of $60,000 for collateral source set-offs, and the judge then entered damages in the amount of $690,000, which included an awarded of $360,000 for future medical expenses.

After that verdict was rendered, the insurer filed a motion for remittitur, arguing the jury award for future medical expenses was excessive and contrasted with the manifest weight of the evidence. The trial court denied the motion, but the appellate court reversed, finding that ruling was improper.

The court noted that while most personal injury lawsuit verdicts involve some element of speculation and are subject to the discretion of jurors, the courts can review that discretion and reduce the award if it’s deemed to be “clearly arbitrary.” The court also cited previous appellate court decisions in noting that only medical expenses that are reasonably certain to be incurred in the future are recoverable. Testimony and/ or evidence that indicates some treatment might possibly be obtained in the future is not enough to merit an award of future medical expenses, the court noted.

During this trial, a treating physician for plaintiff estimated she would incur up to $2,000 in medical expenses annually, and also recommended shoulder surgery, which would cost between $40,000 and $50,000. This, the court said, was the only substantial, competent evidence provided as a basis for future medical expenses. There was no testimony regarding life expectancy, though, so it’s unclear how the jury reached its conclusion.

This lack of evidence on plaintiff’s life expectancy, in addition to the fact the damages awarded for future medical expenses “far exceeded what the evidence supported,” the case was remanded for a new trial solely on the issue of plaintiff’s life expectancy relating to the $2,000-a-year award for medical damages. The court affirmed the $50,000 awarded for shoulder surgery and the projected annual expense of $2,000 a year. The court also affirmed the award on all other counts. The only issue is to multiply the number of years plaintiff is expected to live by that $2,000 annual sum.

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

Additional Resources:

GEICO v. Isaacs, Dec. 7, 2016, Florida’s 4th DCA

More Blog Entries:

Police: Florida Drunk Driver Kills Tow Truck Driver, Oct. 18, 2016, Miami Car Accident Lawyer Blog

We should start by explaining first of all that in the vast majority of personal injury cases, civil attorneys accept their payment on a contingency fee basis. That means they don’t require any money to be paid upfront by the client. Instead, the attorney is only paid if the client wins. In those cases, they have an arrangement to accept a portion of the damages awarded (usually about 30 percent, though it can vary depending on the complexity of the case). That said, there are some instances in which your attorney fees can be paid by the other party (you get to keep the entire damages awarded while the defendant pays your attorney). This is allowed per the aforementioned statute when a plaintiff extends an offer of settlement that is not accepted within 30 days and then goes on to win at trial for an amount that is in excess of that offer by 25 percent or more.

So that brings us to the Anderson case. He offered to settle for a collective $1.7 million and ultimately won $1.7 million at trial. However, the state supreme court ruled that he still qualified to have his attorney’s fees covered. To understand why, we have to delve a bit deeper into the facts of the case. 

According to court records, plaintiff was attacked in a hotel parking lot by a man who robbed him, stole his car and shot him. He suffered severe injuries. He later sued the aforementioned defendants for negligence. Specifically, he alleged premises liability. The defendants had not ensured adequate security on site when there was a foreseeable risk of harm. His wife also filed claims for loss of consortium.

Plaintiff issued an offer for settlement to each of the defendants. Those offers were:

• $650,000 for the hotel;
• $650,000 for the hotel management;
• $100,000 for the hotel investor;
• $300,000 for the hotel security firm.

These offers were rejected. His wife also offered to settle and that offer too was rejected, though wife later agreed to voluntarily dismiss her claims.

The matter went to trial (twice, in fact, as the first trial ended in mistrial).

In the second trial, the hotel, management company and investment firm were collectively referred to as one entity: Embassy Suites. This was despite the fact that no such defendant was named in the complaint. Plaintiff never objected to this singular use and jurors in determining liability apportioned this singular entity with 72 percent liability, without spelling out how much each of those separate entities should pay. Embassy Suites was ordered to pay $1.25 million, while the security firm was ordered to pay $450,000.

Plaintiff then sought compensation for attorney fees. This request was turned down by both the trial court and the 5th District Court of Appeals. The reasoning was that plaintiff’s settlement offer didn’t meet the statutory criteria because damages awarded didn’t exceed 25 percent of his offer.

The Florida Supreme Court, however, disagreed. The court held that the entitlement to attorney’s fees hinges on the “judgment obtained,” as opposed to the verdict form read by the jury. The statute does not indicate that a plaintiff has to obtain a judgment from a designated party in order to be entitled to attorneys’ fees. The entitlement depends only on a sufficient offer and a judgment obtained. In this case, the court ruled, plaintiff made a sufficient offer. Further, the court agreed with legal reasoning from the 2nd DCA that held it improper to combine separate offers of settlement and then compare them to the judgment when determining a party’s right to attorneys’ fees.

Personal injury victims in Miami may call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Anderson v. Hilton Hotels Corp. , Nov. 3, 2016, Florida Supreme Court

More Blog Entries:

Police: Florida Drunk Driver Kills Tow Truck Driver, Oct. 18, 2016, Miami Personal Injury Attorney Blog

Like with any civil litigation, product liability lawsuits require careful examination not just of the injuries sustained and the cause, but whether the vehicle was in fact defective. People are injured and killed all the time on our roads, and it doesn’t necessarily mean there was a problem with the car itself. Proving vehicle defects – even when there has been a recall of that vehicle or a certain part – often requires the testimony of an expert witness, such as an accident reconstructionist, engineer or mechanic.

For years in Florida, we vetted the testimony of these witnesses under a set of guidelines known as the “Frye Standard.” This standard asked simply whether the expert opinion was based on a scientific technique that was generally accepted as reliable in the relevant scientific community. However, a law that became effective in 2013 (to the delight of civil lawsuit defendants) required instead that the state begin using the Daubert standard. The revision of F.S. 90.702 means that expert witnesses now must endure a significant amount of pre-trial scrutiny, which in turn has made it tougher for plaintiffs to succeed in getting their case to trial. However, the Florida Supreme Court is currently weighing whether to revert back to the Frye Standard (a power it has, despite the legislative action, because it involves court procedure). 

Texas, too, uses the Daubert standard, and as we saw in the recent case of Sims v. Kia Motors Corp., before the U.S. Court of Appeals for the Fifth Circuit, it can result in significant hurdles for plaintiffs in car accident lawsuits.

According to court records, decedent (a father and grandfather) was seated in the back seat of a 2010 Kia Soul when the driver collided with another vehicle. The force of that impact caused the vehicle to be tossed like a pinball across the intersection, slamming into various objects in its path. One of those objects was a Yield sign. Part of that sign got stuck underneath the vehicle and pierced the gas tank. When the vehicle came to a stop, the driver and front seat passenger got out safely. But decedent two other passengers in the back were trapped because the doors wouldn’t open. With the gas tank ruptured, it exploded and the vehicle burst into flames. The three passengers died in the fire.

Plaintiff, one of decedent’s sons, sued the car manufacturer, alleging defective design. He asserted the manufacture should have made a gas tank that wasn’t prone to explosion and further that if a fire in the gas tank does occur, the vehicle doesn’t immediately explode so the people inside have a chance to get out.

Plaintiff presented the testimony of two expert witnesses to back his claim, both engineers. One was to testify about the way in which the sign pierced the underside of the vehicle and the other who would assert there was a doable, safer alternative design that would have prevented this kind of deadly fuel tank rupture. Defense moved to exclude these testimony under the Daubert standard, arguing it was not reliable.

The trial court granted that motion and plaintiff appealed. The 5th DCA affirmed. In keeping in line with the Daubert standard, the court ruled, the expert witness testimony was inadequate. Without that expert witness testimony, plaintiff did not have enough evidence to take the case to trial.

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

Additional Resources:

Sims v. Kia Motors Corp., Oct. 5, 2016, Miami Car Accident Lawyer Blog

More Blog Entries:

$35M Wrongful Death Verdict in Trucking Accident Lawsuit, Oct. 3, 2016, Miami Car Accident Lawyer Blog

This phenomenon of course has become extremely popular in nursing home injury lawsuits across the country. What’s been happening is nursing homes, as a condition of admission, require residents or their family members to sign arbitration agreements in which they forfeit the right to have any future disputes heard in court. There are many advantages to this for the nursing home. Arbitration is not public, for starters, so nursing homes aren’t risk damaging their reputation. Arbitrators are often on contract with certain companies, and they tend to issue decisions favoring the business that’s driving their income. Even when they do issue damage awards, arbitration damage awards tend to be a lot lower than what is issued by juries. On top of that, arbitrators don’t even technically have to follow the law. There are very few benefits to arbitration for nursing home plaintiffs, which is why so many are battling it out in court, trying to find ways to have their case heard by a judge rather than an arbitrator.

Now comes the case of Mendez v. Hampton Court Nursing Center, LLC, which was an appeal from a decision handed down by justices with the Third District Court of Appeal. 

According to court records, the Miami-Dade case involved a contract that was signed back in 2009 by plaintiff when his father was admitted to the nursing home. Part of that contract indicated that if there were legal disputes regarding nursing home abuse or negligence, they would be handled by an arbitrator, rather than going to court and possibly being weighed by a jury.

Two years after the father was admitted to the nursing home, he suffered an infection that required the removal of one of his eyes. Later, his son filed a nursing home injury lawsuit against the facility on his father’s behalf. However, the nursing home fired back with a motion to compel arbitration. Plaintiff’s father died in 2013, but the case continued.

A circuit judge and later the 3rd DCA sided with the nursing home, finding the case should go to an arbitrator. However, in a 5-2 decision handed down by the Florida Supreme Court, justices decided the arbitration agreement wasn’t valid because it was signed without the father’s agreement. The court reasoned that it does not enforce contracts when one party only agrees out of duress or threat. By that same logic, it should not enforce a contract that lacks the party’s agreement altogether.

Dissenting opinions from two justices, however, sharply disagreed with this, saying the opinion by the majority “obliterates longstanding Florida contract law.” They indicated that even though the father lacked the capacity to give informed consent and the son did not have power of attorney, he signed the admission agreement as his father’s representative. However, the majority reasoned the father’s mental capacity doesn’t matter in this case. Had the nursing home wanted to do so, it could have petitioned the court for an adjudication to find the father incapacitated and then have the court appoint a representative who then could have signed.

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

Additional Resources:

Mendez v. Hampton Court Nursing Center, LLC, Sept. 22, 2016, Florida Supreme Court

More Blog Entries:

Suing Employer for Driving Negligence of Employee, Sept. 22, 2016, Miami Nursing Home Abuse Lawyer Blog

The practice has been widely derided, and there have been some calls for the federal government to intervene and make the practice illegal. So far, that hasn’t happened. And while courts generally do uphold arbitration agreements, many judges – including those in Florida – have been taking issue with certain elements of such agreements that are inherently unfair or that render them not legally enforceable. For example, some family members will sign away a resident’s legal rights when in fact they did not have the authority to do so. In other cases, judges are finding these agreements are strictly against public policy.

The recent case of Olson v. Florida Living Options, Inc., before Florida’s 2nd District Court of Appeal, yet again involved one of these arbitration agreements.

According to court records, the personal representative of the estate of decedent appealed a non-final order that granted the motion to compel arbitration with the nursing home at which decedent died. Plaintiff alleges the skilled nursing facility breached its duty of care and was negligent in its treatment of decedent, causing his death. Defendants sought to compel arbitration, which is generally deemed by defendant corporations to be a more friendly process. Records aren’t made public, arbitrators don’t have to follow the law and decisions are often skewed in favor of the company, which keeps arbitration firms on retainer.

The 2nd DCA, in ruling the nursing home negligence claims raised by the estate weren’t within the scope of the arbitration agreement, reversed and remanded the case back to the trial court.

Plaintiff had alleged the elderly decedent sustained numerous personal injuries during his stay at defendant nursing home. Defendant filed a motion to compel arbitration. It was noted that in the agreement, there was a provision indicating the agreement covered the full course of residency, even if patient was re-admitted following a discharge and that the agreement would cover all future admissions.

But the issue here was that the agreement was signed by decedent with regard to his care at the assisted living facility. Yet it was being utilized by the skilled nursing facility at which he later became a resident, which was owned by the same company as the assisted living facility. It was plaintiff’s contention that the agreement with the assisted living facility couldn’t be utilized by the skilled nursing facility to compel arbitration. These were two separate companies, even though they were owned by the same firm. The 2nd DCA agreed with plaintiff. However, even if they assumed for a moment that defendant could prevail on this point, the court took its analysis a step further in analyzing the scope of the arbitration agreement. The arbitration agreement signed by decedent specifically references the assisted living facility – not the skilled nursing facility – and it is not disputed that that the negligence reportedly occurred while decedent was a patient at the skilled nursing facility. A “contract” signed by patient upon admission to the skilled nursing facility makes not reference to arbitration. Thus, the allegations as they pertain to the skilled nursing facility don’t have anything to do with the agreement signed with the assisted living facility.

If you or a loved one have been a victim of nursing home abuse in Florida, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Olson v. Florida Living Options, Inc., Sept. 9, 2016, Florida’s Second District Court of Appeal

More Blog Entries:

NHTSA: Non-Traffic Accidents are a Serious Problem, Sept. 14, 2016, Miami Nursing Home Abuse Lawyer Blog

• How much plaintiff earned before the crash;
• How much plaintiff earned after the crash;
• Whether crash-related injuries and treatment resulted in time away from work;
• Whether crash-related injuries and treatment will result in future time away from work or an inability complete certain tasks. 

Of course, lost wages is just one element of overall damages, but it is often a significant one in a claim, and injury lawyers need to spend a fair amount of time ensuring it is fully explored and aptly presented.

In the recent case of Safeco Ins. Co. v. Fridman, Florida’s Fifth District Court of Appeal was reviewing the case for the second time, in this instance on remand from the Florida Supreme Court. The state high court had held that in this uninsured/ underinsured motorist action, plaintiff insured is entitled to a jury determination of liability and the full extent of damages – which might be in excess of the policy limits – prior to litigating a first-party bad faith cause of action. That meant a prior ruling from the 5th DCA was quashed. The case was remanded to the appellate court to determine whether trial court erred in denying the insurer’s motion for a mistrial and a new trial and secondly, whether trial court erred in denial of the insurer’s motion for remittitur (reduction of damages). 

As to the first issue, the insurer had argued certain statements made by plaintiff’s attorney were improper and warranted a new trial. The court disagreed with this. However, the appellate panel did rule the lower court was wrong to deny a motion for remittitur on the $1 million damage award when plaintiff’s only proof of lost wages was speculation on how, had he not been injured, he might have succeeded in the short-lived wholesale tile and marble business he started shortly after the crash.

The car accident in question happened in January 2007. He was struck by an uninsured motorist. At the time, plaintiff was 41-years-old and unemployed. Prior tot he incident, he worked as an electronics salesman for several years, earning somewhere between $800-a-week and $1,000-a-week. He also for a time operated a retail tile and marble store, but could not indicate his exact earnings, saying that it was a growing business, but “I don’t remember making a paycheck even.”

Then, soon after the crash, plaintiff opened up a wholesale tile and marble company, which was open just 20 days. The business lost money. Plaintiff insisted he had to close the company because he couldn’t lift the materials as a result of the injury. He then went to work for an electronics store, at which he earned between $400 and $600 weekly. Then he went to a photo company, earning between $500 and $600 weekly. After that, he found a new job at a cash-for-gold firm, at which he earned about $1,200 every week. He still worked there at the time of the trial.

Plaintiff presented evidence to show he couldn’t work for about two weeks after the crash when he needed to have surgery related to the crash. He also provided evidence he would probably need a spinal fusion in the future because of the crash, and that surgery could have him out-of-work for up to four months.

At trial, plaintiff testified he believed he could have in a good year with the wholesale marble and tile company have made up to $200,000. He based this on the assertion that tiles are purchased for 25 cents-a-square-foot and resold for $2-a-square-foot. No other evidence was presented to support this $200,000 annual figure.

Jurors awarded him $1 million, which included $45,000 for previous lost wages and $225,000 for lost future earning capacity. Insurer sought a remittitur, arguing there was not enough evidence to support that level of wage losses.

The appeals court agreed. The court noted that when, as in this case, a plaintiff is earning more after the car accident injury than before, it is not impossible to recover damages for loss of income or future lost earning capacity – but it’s tougher to prove an actual economic loss.

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

Additional Resources:

Safeco Ins. Co. v. Fridman, Aug. 12, 2016, Florida’s Fifth District Court of Appeal

More Blog Entries:

State Farm Mut. Auto. Ins. Co. v. Jakubowicz – Auto Insurance Policy Ambiguous, Aug. 2, 2016, Miami Car Accident Lawyer Blog

The recent case of Allen v. Montalvan, before Florida’s Fourth District Court of Appeal, shows what can happen when both sides – even when acting in good faith – fail to take this crucial step to ensure that a car accident settlement agreement is legally binding.

According to court records, plaintiffs – three minor children – were among six total people in a vehicle struck by defendant motorist (driving a vehicle owned by his wife, also a defendant). The person driving the vehicle was their grandmother. Their mother was also in the vehicle, as was an uncle. Tragically, the grandmother was killed in the crash. They, their mother and their uncle suffered varying degrees of injury.

Several days after the crash, the mother of the children sought legal advice and filed a claim for damages from the defendant driver’s insurer. The insurance company, rather than turn this into a long, protracted legal battle (as so often happens), agreed to tender the full policy limits.

The policy allowed for $25,000 per person and up to $50,000 per car accident. The mother, as representative of the grandmother’s estate, agreed to settle that claim for the per-person limit of $25,000. The remaining $25,000, as far as the insurance company understood, would go to settle all remaining claims for the other five people involved – including the three children. The insurer did not ask – and plaintiff attorney did not immediately stipulate – how much of that $25,000 was to go to the children. Neither did either side ensure the children’s interests were represented by a guardian ad litem, as required per F.S. 744.

Later, the attorney submitted notice to the insurer that the amount allocated to the children was $0, while the amount allocated to the mother and uncle was $25,000 total.

Mother later retained a different attorney who sought compensation for the children as a result of the crash.

Defendant’s auto insurance company intervened and argued the claims were barred as a result of the settlement, which was intended to resolve all pending claims. Plaintiff’s former attorney said his understanding was not that the settlement had settled all pending claims, but rather that it was a tendering of the full policy limits.

Mother argued this was a matter for a jury to decide. However, trial court determined the parties had a binding agreement and that the $50,000 settlement agreement resolved all claims.

Mother appealed and the 4th DCA reversed. In reaching this conclusion, the court pointed to F.S. 744.3025(1)(b), in which it is required that the court “shall appoint” a guardian ad litem to represent a minor’s interest before approval of a settlement of a minor’s claim in any case where the gross settlement amount meets or exceeds $50,000. Defendant insurer argued that the $25,000 allocated to the grandmother’s estate should not be included this $50,000 figure. That would mean the $25,000 earmarked for the remaining passengers wouldn’t meet the criteria necessary to ensure the interests of the children were furthered by an appointed guardian ad litem.

The appeals court disagreed.

Florida rules of evidence and prior case law supported the notion that in this instance, the gross settlement amount met the $50,000 threshold criteria.

The case has been remanded to the lower court for further proceeding.

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

Additional Resources:

Allen v. Montalvan, June 22, 2016, FL 4th DCA

More Blog Entries:

Tire Tread Blamed in Florida Car Accident That Killed Four Sisters, June 14, 2016, Miami Car Accident Lawyer Blog

The statute and rule set a hard, 30-day deadline for the other party to accept or reject the proposed settlement, and the settlement may be deemed rejected if the party does not respond to it. Assuming the proposal was made in good faith, the party who extended it may seek recovery of attorney fees if they later prevail in court (for defendants, if plaintiff receives at least 25 percent less than the proposed offer and for plaintiff, if judgment is at least 25 percent more than the amount of the offer). The whole purpose is to avoid or reduce backlog in the courts and encourage parties to save time and money by settling.

In the recent case of Ochoa v. Koppel, Florida’s Second District Court of Appeal issued a decision pertaining to the length of time one has to accept or reject a settlement after requesting more time. The court decided that the 30-day limit is a strict one, and can’t be tolled while awaiting a decision from the trial court after requesting an extension. This decision directly contrasts with the ruling issued by Florida’s 5th District Court of Appeal in Goldy v. Corbett Cranes Services, Inc. in 1997. The conflict was certified to the Florida Supreme Court.

According to court records in Ochoa, this was a car accident lawsuit stemming from a crash that occurred in 2011. Less than two years later, In April 2013, plaintiff filed a lawsuit against the alleged at-fault driver.

Then in September 2013, plaintiff served defendant with a proposal for settlement, pursuant to the aforementioned statute and rule. The proposal offered to dismiss the action with prejudice if defendant agreed to a lump sum payment of $100,000 to compensation plaintiff for her injuries. That proposal indicated that it would be deemed rejected if it was not accepted within 30 days after service. The proposal also indicated it would be withdrawn if not accepted within that time frame. Plaintiff also sent notice to the court that same day that the case was ready for trial.

One day before that 30-day time limit was up, defendant filed a motion seeking to enlarge the time in which to respond. She said she had just received through discovery results of a new MRI and plaintiff’s deposition hadn’t even been taken yet. The matter was set for a hearing on Dec. 2, 2013.

At that hearing, the court did not make a decision, but asked for more information to be received within 3 days. One day after the hearing, however, defendant responded to plaintiff with a notice of acceptance of the proposed settlement.

However at a subsequent hearing, the court denied defendant’s request to enlarge settlement. Plaintiff then filed a motion to strike the notice of acceptance of settlement as untimely. Defendant opposed the motion, citing Goldy. She argued the period of time she had to respond was tolled while awaiting the court’s decision on her request for enlargement. Trial court agreed and dismissed plaintiff’s lawsuit under the terms of the proposed settlement.

The 2nd DCA reversed. The court ruled that to offer automatic tolling when one files a motion for enlargement would be to give the party filing additional time than what is prescribed in the rule, and this is done without an exercise of judicial supervision or discretion until the motion is decided. Further, to hold that a motion to enlarge that 30-day period automatically tolls the time period would be to insert text into a judicial rule, and that is not the role of the court.

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

Additional Resources:

Ochoa v. Koppel, May 20, 2016, Florida’s Second District Court of Appeal

More Blog Entries:

Moreno v. City of Gering – Government Liability in Bus Accident, April 27, 2016, Miami Car Accident Lawyer Blog

F.S. 95.11(4)(b) holds that an action for medical malpractice must be initiated from either 2 years from the time of the incident giving rise to the action or within 2 years of the time the incident is discovered or should have been discovered with the exercise of due diligence. However, there is a 4 year statute of repose, which means no action can be initiated after that four-year deadline. But, there is one exception: Actions brought on behalf of a minor on or before the child’s 8th birthday.

In the recent case of Coffey-Garcia v. South Miami Hospital, recently before Florida’s Third District Court of Appeal, the question was whether in weighing this discovery deadline in an alleged birth injury case, plaintiff could be compelled to give information about when she met with various attorneys and what was discussed. Plaintiff argued such information was protected by attorney-client privilege, while defendant argued it was not and the information was pertinent to when plaintiff knew or reasonably should have known the purported cause of her daughter’s cerebral palsy. 

The facts of the case begin in July 2005, when plaintiff gave birth to her daughter.

Then in early 2007, a neurologist diagnosed the girl with cerebral palsy. Cerebral palsy occurs when the brain injury or brain malformation that occurs while the brain is developing – either before, during or after birth. The result is brain damage that affects the child’s muscle control, coordination, tone, reflex, posture and balance. It can also sometimes impact the child’s gross motor skills, fine motor skills and oral motor functioning.

Although it can occur organically, it is a red flag of perinatal brain cell death, which means that events during the birth process led to rupture of the blood vessels that start oxygen to the brain. This type of birth injury is often the result of medical malpractice.

In April 2013, prior to the girl’s 8th birthday, the parents filed a notice to extend by 90 days the statute of limitations for filing a medical malpractice lawsuit against the doctors and hospitals involved in their daughter’s birth. They filed a notice of intent to initiate the lawsuit, which was ultimately filed in November 2013.

The question was whether the statute of limitations will be a bar to this claim, and ultimately, that decision will rest on when plaintiff knew not only of the injury, but also had knowledge there was a reasonable possibility the injury was caused by medical malpractice.

Attorneys for the defense sought information to discover what attorneys plaintiff consulted with about her daughter’s condition, when she consulted with them and why she consulted with them. She did testify in deposition that her current attorney was not the first lawyer with whom she consulted, but then declined to comment further on the basis of attorney-client privilege. Defense moved to compel her to answer all questions related to when she first sought legal counsel, the names of attorneys with whom she consulted and the reasons she first sought out an attorney and any others subsequent.

The trial court granted the motion to compel and plaintiff appealed to the 3rd DCA. The appeals court noted that although a client can’t be compelled to answer questions like, “What did you say or write to the attorney?” he or she can’t refuse to disclose a relevant fact just because it was incorporated into a statement of fact communicated to his or her attorney.

Appeals court noted that the questions the defense sought – the names of attorneys and dates of consultations relevant to plaintiff’s claim regarding her daughter’s condition – are not protected information because that only requires her to disclose the occurrence of a consultation. However, plaintiff can’t be forced to answer “all questions” (as the lower court had ordered), such the specifics of what was discussed.

If your child has been a victim of a Miami birth injury, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Coffey-Garcia v. South Miami Hospital, June 22, 2015, Florida’s 3rd District Court of Appeal

More Blog Entries:

Westphal v. City of St. Petersburg: Florida Supreme Court Rules Limit of Workers’ Comp. Unconstitutional, June 22, 2016, Miami Birth Injury Lawyer Blog

There may be one exception, though: Apparent agency.

Apparent agency, also sometimes referred to as apparent authority, occurs when a reasonable third-party believed or understood the agent (i.e., at-fault person) had the authority to act on behalf of that third-party.

The theory of apparent agency does not require that the agent actually be employed by that third party, only that it appeared so to a reasonable person.

Florida case law has provided guidance for establishing apparent agency. In the 1995 1st DCA case of Robbins v. Hess, the court held that apparent agency existed only when all of the three elements were present:

• Representation by the purported principle;
• Reliance on that representation by a third party;
• Change in position by the third party in reliance on that representation.

An example of how the theory of apparent agency may come into play in a medical malpractice case was seen in the recent Idaho Supreme Court case of Navo v. Bingham Memorial Hospital.

According to court records, decedent had suffered a broken ankle when he slipped while getting out of his truck. The following day, he needed to undergo surgery to install a metal rod.

Unfortunately, the site of that surgery became infected and decedent would need to undergo a second surgery. A few days before that surgery, he was provided with an admission form that indicated the anesthesia services provided at the facility were given by an independent contractor who would be separately billed. He signed that form.

The day before the surgery, he was given a anesthesia and procedure consent form. That document did not clearly state that anesthesia would be administered by an independent contractor who was not an employee of the hospital. That document was provided on hospital letterhead and logo.

Prior to surgery, anesthesia was admitted via spinal tap. Soon after, decedent’s oxygen levels dropped and his heart rate slowed. However, he was eventually stabilized enough that doctors continued with surgery. However, following the procedure, decedent could not be revived. He died several days later, having never regained consciousness.

Plaintiffs, representatives of decedent’s estate, filed a medical malpractice lawsuit against not just the anesthesiologist, but also against the hospital. The hospital countered with a request for summary judgment, arguing it could not be vicariously liable for the alleged negligent actions of the anesthesiologist, an independent contractor.

District court granted summary judgment and plaintiff appealed. Plaintiff argued the hospital could be liable based on the theory of apparent agency.

The state supreme court noted the two elements under Idaho law needed to establish apparent agency against a health care facility with regard to independent contractors:

• Conduct by the (hospital) that would lead a reasonable person to believe another person acts on the (hospital’s) behalf (i.e., conduct by the hospital holding out a health care professional as an agent);
• Acceptance of agent’s services by one who reasonably believes it is rendered by the hospital.

The court noted there was sufficient evidence in this case – based on the consent form signed by decedent – that the theory of apparent agency could be established and accepted by jurors.

Based on this, the state high court reversed and remanded for trial.

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

Additional Resources:

Navo v. Bingham Memorial Hospital, April 26, 2016,Idaho Supreme Court

More Blog Entries:

Bove v. Naples HMA – Florida Medical Malpractice Statute of Limitations, April 21, 2016, Medical Malpractice Lawyer Blog

There are two primary exceptions:

• When the person who was served alcohol was under the legal age of 21;
• When the person is known to the establishment as one who is habitually addicted to alcohol.

In a recent case before Florida’s 4th District Court of Appeal, drunk driving injury victims argued the law should also be applicable to an establishment that assumes responsibility to stop patrons from getting behind the wheel drunk and then failing to do so.

Plaintiffs in De La Torre v. Flannigan’s Enterprises, Inc. relied heavily on the “undertaker’s doctrine.” 

The Florida Supreme Court has used the Second Restatement of Torts, sectiosn 323-324A to define the “undertaker’s doctrine,” which involves the liability of third parties who gratuitously undertake the responsibility to render services to another person for that person’s protection. The third party can, by these actions, be held liable for physical harm that results from failure to exercise reasonable care.

There are a number of cases where this assertion has worked. In one case, Massad ex rel. Wilson v. Granzow, a party host took it upon himself to care for a guest who was drunk and had fallen and suffered a head injury. Host allegedly gave the guest a prescription painkiller, which worsened his symptoms, and then left him alone by the pool, where the guest drowned. The court applied the undertaker’s doctrine and the host was found liable.

In another case, Carroll Air Systems, Inc. v. Greenbaum, a business purchased drinks for an employee while he was entertaining clients.Employee later drove drunk and struck a third party, who was injured. The court ruled the employer wasn’t protected by Florida’s limited dram shop law because although employer didn’t furnish the drinks, it had knowledge – actual or constructive – that employee was intoxicated and in no condition to drive. Although the employer was not at the meeting, employer had the ability to control its employees.

But the 4th DCA said these cases are distinguishable from the case against Flannigan’s.

According to court records, a woman went there and drank several alcoholic beverages one evening in 2011. After a while, woman became intoxicated. Staffers at one point stopped serving alcohol to her, observing that she was drunk, and began serving her water. However, no one on staff tried to stop her when she left and got in the wheel of her car.

This was despite the fact that the restaurant had a policy in place to stop drunk patrons from driving. This involved taking the patron’s keys, calling law enforcement or ensuring the person had a sober driver. None of those actions were taken in this case, and the woman got in her car, left and was involved in a drunk driving accident, injuring the passengers.

Passengers later sued the bar, citing the undertaker’s doctrine. They argued that because the bar had this policy – and employees failed to adhere to it – the restaurant should be held liable. They argued the issue was not that the bar served the woman, but that employees failed in the duty they had assumed by way of restaurant policy.

However, neither the trial court nor the appeals court saw it that way. The state does not require establishments to stop people from driving drunk, and those that make efforts to try shouldn’t be punished for doing so, the 4th DCA reasoned.

Still, drunk driving accident victims should consult with an experienced injury lawyer in order to explore all potential avenues of recovery.

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

Additional Resources:

De La Torre v. Flannigan’s Enterprises, Inc., March 9, 2016, Florida’s Fourth District Court of Appeal

More Blog Entries:

Study: U.S. Drivers Increasingly Dangerous, Distracted More Than Half the Time, March 21, 2016, Miami DUI Injury Lawyer Blog

The Defendant objected to the admission of the air bag report arguing that the report was hearsay and should not be admissible at trial.  The judge overruled the defense’s objection, admitted the report, and the Defendant was convicted at trial of  leaving the scene of a crash involving death, vehicular homicide, and driving while license is suspended or revoked.  Based upon this evidentiary ruling, this air bag report could also be used in a DUI manslaughter case.

After the conviction, the Defendant appealed to the Second District Court of Appeal which rules on cases in Polk and Hillsborough County.  The appellate court agreed with the trial court and held that the “black box” report was not hearsay and was admissible at trial.  This means that the “Confrontation Clause” which gives the Defendant the right to confront his or her accuser and the witnesses against him did not apply.  That is because the court rules that the “black box” report is not testimonial hearsay.  What does all that legal mumbo jumbo mean?  That the the air bag control system report is not accusatory and does not describe any specific wrongdoing of a driver.  The report merely establishes the existence or absence of some objective fact, i.e., if and when the brakes were applied in the driver’s car before the accident and the speed the car was traveling.  If this had been a lab report done by a crime analyst or lab technician stating the results of a driver’s blood alcohol level or what type of drug was seized by the police, the person who conducted the lab report would testify.

What does mean to you?  If you have been arrested for a driving offense or a drug offense, the nature and type of the report may require a witness to testify.  You also need to know that information before you go to trial or make the decision to go to trial.   Retaining a criminal defense lawyer that stays up-to-date withe the latest case law is extremely important to get the best outcome for your criminal case.  Knowledge allows you to make the best and most informed decisions possible.

If you have been arrested for a serious felony, DUI with Serious Bodily Injury (SBI), DUI Manslaughter, leaving the scene of an accident with death, or a drug or controlled substance offense, retain an attorney that knows the most recent case law and how the rules of evidence will benefit or hurt your case.

PROTECT YOUR RIGHTS – CALL NOW 863-688-4606 AND SPEAK TO AN EXPERIENCED AND AGGRESSIVE ATTORNEY WHO WILL FIGHT FOR YOUR RIGHTS IN THE COURT ROOM!

 THOMAS C. GRAJEK, CRIMINAL DEFENSE ATTORNEY

Handling all criminal and juvenile cases in Polk County, Florida including Bartow, Lakeland, Winter Haven, Auburndale, HainesCity, and Davenport.

See Peterson v. State, __ So. 3d __, 39 F.L.W. D75 (2d DCA 1/3/2014)

In Florida, a person is guilty of DUI if they are driving a “vehicle” while impaired.  Notice that “motor vehicle” is not used in this statute.  The definition of a “vehicle” determines whether or not a bicycle would qualify for a DUI, which is:

“Vehicle’’ is every device, in, upon or by which any person or property is, or may be, transported or drawn upon a highway, except devices used exclusively upon stationary rails or tracks.  Florida Standard Jury Instructions 28.1.  Florida courts have also held that a bicycle qualifies for a DUI.  State v. Howard, 510 So.2d 612, (Fla. 3d DCA 1987).  This person could be charged with DUI.

Whether or not the prosecutor can prove was guilty beyond a reasonable doubt, and whether the DUI investigation was conducted properly by the police is a question for the court and jury.

How weak is this “DUI case?  It’s only a bike and more importantly, he had a breath test level of 0.04!!!  At that level a driver, or in this case a bicyclist, is PRESUMED NOT IMPAIRED under the law!!!  The DUI officer allegedly requested a urine sample, but what many officers do not realize is that just because someone blows under the legal limit, does not mean the officer can request a urine sample to determine the presence of drugs or a controlled substance.  From the police report it does not appear that a Drug Recognition Officer (DRE) was called in to conduct a Drug Influence Evaluation (DIE) in this DUI case.  That means that the Polk deputies did not do a complete and thorough investigation and did not even try and develop probable cause that the guy on the bicycle was under the influence of drugs.

Just because a driver blows under 0.08 does not mean that he must be under the influence of “something.”  Usually, it means the DUI officer made a mistake and a wrongful arrest.  I find many times officers that do not know how to properly conduct a DUI investigation and the field sobriety exercises according to the NHTSA manual.  These mistakes lead to people wrongly being arrested for and accused of DUI!

If you have been arrested for DUI, call an attorney that knows the DUI laws and how a DUI investigation should be properly conducted. If you’re looking for a fighter, call me!

DON‘T HESITATE!!!   PROTECT YOUR RIGHTS!!! 

CALL POLK COUNTY DUI ATTORNEY THOMAS C. GRAJEK NOW !!!

 863-838-5549 cell

Because you only have 10 days to request a Formal Review! 

In this case, the suspect was walking home when the police asked for her license which she complied instead of walking away.  This made the initial encounter with police a “consensual encounter.”  She could have walked away and should have as the police officer had no reasonable suspicion or probable cause to detain the citizen.  The citizen told the police she was walking home and trying to avoid the crazy traffic which was a reasonable explanation for her behavior.  The cop took her license and ran a warrants check which came back clean.  However, the police officer DID NOT give the defendant her license back, but instead asked for consent to search her.  The appellate court ruled that under the circumstances of this case, by not returning the license to the citizen, that the stop became a seizure.  The officer also did not tell her she was free to leave.  This unlawful seizure resulted invalidated the defendant’s consent to the search.  Therefore, the 2nd DCA ruled that the consent was not freely and voluntarily given and the evidence should be suppressed.

What does that mean when the court grants a motion to suppress evidence?  That means that the sheriff, police, or law enforcement violated the defendant’s constitutional rights.  The police had no right to search.  So, any evidence seized or collected is thrown out of court.  In his case, that means the controlled substance seized from the defendant can not be used in court against her.  The prosecutor must prove that the accused possessed an illegal drug, but with no drug to present to a jury, the criminal charges must be dismissed.

If you have been arrested because the police stopped and searched you, you may have a defense to the charge.  The police may have violated your rights.  You may have a Motion to Suppress that could get your criminal charges dismissed!

Call Thomas C. Grajek, an experienced Polk County criminal defense lawyer who keeps up to date on the latest case law that can help you when facing a serious felony or misdemeanor criminal charge.

CALL AND SET YOUR FREE OFFICE CONSULTATION NOW! 

Office – Lakeland, FL

Thomas C. Grajek  863-688-4606