As The Miami-Herald reported, motorists in Jamaica have something of a reputation for driving erratically. The roads in the island nation are winding and narrow and traffic laws are not strictly enforced. Still, tour guides frequently operate buses and vans on these stretches for various excursions for international cruise line patrons. This particular auto accident occurred in Falmouth, Jamaica, and affected passengers hailed from all over the eastern U.S., including South Florida, North Carolina and Connecticut, as well as Michigan and Illinois. The tourists were on an excursion to Dunn’s River Falls, which is near the main attraction, Dolphin Cove. It had been arranged by Royal Caribbean and was an offer extended to all passengers on the ship.

Those who survived the crash say that just before the collision, the operator of the tour bus was driving erratically, frequently switching lanes and excessively speeding. Several of those on board asked that he slow down. The driver reportedly assured the passengers that, “this is how everyone drives” in Jamaica. Maybe so, but it didn’t end well this time.

According to reports, the driver was on a two-lane road and as he approached a curve with limited visibility, he slammed into oncoming traffic in an attempt to pass another vehicle. Meanwhile, a truck was traveling the opposite direction and broadsided the bus as the truck driver tried to swerve to avoid impact.The bus flipped numerous times. One passenger was killed and several others suffered severe and permanent injuries, according to the car accident lawsuit.

Three of those on the bus were treated at a local hospital. The lawsuit filed alleged 18 of the 21 cruise ship passengers on board suffered injuries that ranged from scrapes and bruises to lifelong, debilitating conditions.

Any case against cruise ship operators can be tricky for a number of reasons. First, there are the waivers of liability that are printed on each ticket. Purchase and subsequent attendance on the ship can be legally construed as consent to those terms. Beyond that, injuries that occur on excursions often may only legally involve the small local outfits that contract with the large cruise lines to offer them. In this case, plaintiff attorneys allege passengers were made to believe the cruise line was the entity operating the excursion, as it was marketed as an affiliated trip. However, the excursion in question was in fact led by a third party, Jamaica-based tour operator.

Still, plaintiff lawyers assert that cruise line companies have a responsibility to take reasonable steps to ensure patron’s safety from the beginning to end of their trip, and that responsibility is not severed when passengers take an excursion – particularly if it is one that is offered and marketed by the cruise line.

If nothing else, the case highlights the importance of road safety no matter where you are – whether it’s going to work or vacationing in Florida or traveling in another country. Always wear a seat belt, observe the speed limits and obey local traffic laws.

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

Additional Resources:

Passengers sue Royal Caribbean for reckless Jamaican tour that killed one traveler, Jan. 11, 2016, By Chabeli Herrera, Miami Herald

More Blog Entries:

GEICO v. Isaacs – Arguing Against Post-Accident Trial Remittitur, Jan. 3, 2016, Miami Car Accident Lawyer Blog

In the past, states routinely imposed driver restrictions that were based solely on one’s age. But now, advocacy groups are fighting back against this type of designation, saying it’s arbitrary and fails to take into account the individual’s ability. As people are living longer, many people are living healthier. The 70-year-old’s of today are much more active than the 70-year-old’s of even just 40 years ago. Consider that in 1970, less than half of people over the age of 65 had a valid driver’s license. Today, more than 85 percent do. These drivers also tend to have a fairly safe driving record. They also are generally healthier and their cars are safer than the elderly of generations’ past. Additionally, this cohort has an increasingly powerful – and vocal – advocacy base in organizations like the AAA Foundation for Traffic Safety and the AARP.

In Florida, drivers who are 80-years-old or older when their current license expires can renew at the nearest office for the Department of Motor Vehicles, and only after passing a vision test. In some situations, written knowledge will be tested too. Some older drivers may have restrictions placed on their driver’s license if their vision is not up to the standard. That could mean allowing driving only during daylight hours or prohibiting driving during rush hour traffic. 

But as the country prepares to face the fact that by 2030, an estimated 60 million older adults will be driving on our nation’s roads, a number of states have been rejected additional measures that would impose greater restrictions on older drivers. Part of that is because older drivers are increasingly viewed as safe drivers. There are also more programs in existence to help them better their driving skills. Plus, there have been a number of recent studies that seem to indicate that these types of arbitrary age restrictions aren’t as effective at curbing car accidents as was once believed. Then on top of that, you’ve got the AARP and AAA advocating on their behalf, arguing that DMV officials should be looking at more than just a driver’s age.

Among the states where such enhanced measures failed:

• Legislators in Vermont rejected a bill that would have required over-65 drivers to pass vision and road tests to obtain or renew their driver’s licenses.
• Lawmakers in Tennessee rejected a measure that would have required drivers over the age of 76 to take a driving test.

Those who are advocating for the elderly say that while it’s true that vision and reflexes and overall health can deteriorate with age, these types of arbitrary testing are a form of discrimination. There is no doubt that the laws vary widely from state-to-state, and enforcement of these rules is often spotty. It’s also been established that fatality rates among drivers over the age of 55 in states that require written or roadside tests or shortened renewal periods aren’t any lower as compared to other states.

Still, we do know that older drivers are more prone to be involved in certain types of collisions. One study by the Insurance Institute indicated elderly drivers were far more likely to be involved in car accidents at intersections and in those resulting from failure to yield.

Both the AARP and AAA support the concept of medical advisory boards, which would set uniform standards for state licensing agencies to assess at-risk drivers – not just those who have reached a certain age.

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

Additional Resources:

Curb elderly drivers? Not so fast, Dec. 25, 2016, By Jenni Bergal, Stateline.org

More Blog Entries:

GEICO v. Isaacs – Arguing Against Post-Accident Trial Remittitur, Jan. 3, 2016, Miami Car Accident Attorney 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

Insurance claim forme

Here are today’s two lessons from a court decision yesterday:  (1) Take your time before settling your case.  (2) Talk to a lawyer before settling a case.

I often warn victims of car wrecks or other accidents to be aware of insurance companies’ “swoop and settle” tactics.  In these situations, the insurance company (GEICO seems to be the worst) contacts you immediately after a wreck and makes an immediate settlement offer to try to get you to give up your rights before you know how bad you are hurt or before you know your rights.

Yesterday, the Dallas Court of Appeals handed down a new case that shows just how this terrible practice works.

In the case, Windell Gilbert was injured in a car wreck.  GEICO was the insurance company that covered the driver who caused the wreck.

Eight days after the wreck, GEICO called and suggested to Mr. Gilbert that they settle the case for GEICO’s payment of the medical expenses incurred on the date of the accident (which totaled $4,806.75) and $500.00 to Mr. Gilbert.  Mr. Gilbert agreed, and the GEICO representative had them do a recorded call confirming that settlement.

Not surprisingly, but Mr. Gilbert ended up being hurt much worse than he thought.  He went to a doctor and had over $15,000.00 more in medical expenses.

Mr. Gilbert later sued the other driving, arguing that the first settlement was unfair.  But yesterday’s opinion held that Mr. Gilbert and GEICO had a binding agreement and that Mr. Gilbert was bound to the $500.00 agreement.  Moreover, the court awarded GEICO (through the other driver) $10,000.00 in attorneys’ fees against Mr. Gilbert.

This case is a perfect example of why car wreck victims should wait to talk to an attorney and to take a little time before settling a case.  Initially, even if Mr. Gilbert wasn’t hurt more than just needing medical care on the first day, the offer from GEICO was a terrible offer.  But more importantly, people are often hurt more than they realize.  Problems linger or don’t show up until later.  I typically advise my clients that in most cases, you shouldn’t settle until you know you’re better or until a doctor tells you you’re not better, but you’re as good as you’re going to get.

So remember the lessons for car wreck (and really all injury) claims. Don’t settle too early, and don’t settle without talking to a personal injury lawyer.

So concludes a five-year legal battle in a closely-watched workers’ compensation claim filed when a 53-year-old city firefighter suffered a serious back injury while moving furniture as he battled a blaze. Plaintiff was totally disabled and unable to work. But state legislators overhauled the state’s workers’ compensation system back in 2003 amid pressure from business and insurance lobbyists, ultimately cutting off temporary total disability benefits after just two years.

As plaintiff’s attorney later told the Orlando Sentinel, “For anyone that had continued disability, this is an important thing. You can’t arbitrarily say people aren’t going to get benefits after a magical time limit like this.” 

This is significant for those who have suffered a work-related personal injury because as a recent in-depth investigation by ProPublica revealed, worker benefits within the entire workers’ compensation system – the “grand bargain” between workers and their employers – has been eroded across the country in the last decade. The trade-off was always that workers were to be granted access to a no-fault system of benefits for work-related injuries, while forfeiting the right to sue the employer for negligence. Those benefits have been slowly chipped away by legislators in state after state, and yet, workers still don’t have the right to sue their employer.

The Westphal decision made it clear that when workers’ compensation is the exclusive remedy to litigation, it must function as a reasonable alternative. Here, it did not. The state high court ruled that under article I, section 21 of the Florida Constitution, which prohibits denial of access to the courts, is trampled with this arbitrary cut-off date because it deprives the injured worker of disability benefits under these circumstances for an indefinite amount of time. Further, the court called Florida’s 1st District Court of Appeals’ effort to spare the statute from being deemed unconstitutional “valiant,” but ruled the judiciary does not have the authority to rewrite a statute that is plainly written – even the point is to avoid that law being found unconstitutional.

Specifically, the statute says that once a worker reaches a maximum of 104 weeks or maximum medical improvement – whichever comes sooner – the worker’s temporary total disability benefits are to cease and the injured worker’s permanent impairment shall be determined (F.S. 440.15(2)(a) ). However, the statute fails to ensure the worker is at that time legally entitled to receive permanent disability benefits. Neither does it provide that the worker will be automatically deemed to be at maximum medical improvement, based on the fact that temporary total disability benefits have stopped.

The end result, the court noted, is that the law severs disability benefits from workers at a critical juncture – when the worker can’t go back to work and is totally disabled, but the employer’s chosen physicians decide the worker might still medically improve.

The court was careful to say that in finding this provision unconstitutional, it does not mean the entire workers’ compensation system in Florida has to be scrapped. Instead, the court employed a “statutory revival” of the previous limit on temporary total disability benefits, which was 260 weeks, or five years. That time frame, it had been previously established, is constitutional.

The 5-2 ruling was the second recent victory for labor groups and plaintiff’s attorneys, as the court recently ruled in April that a law establishing limits on attorney’s fees in workers’ compensation cases was unlawful.

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

Additional Resources:

Westphal v. City of St. Petersburg, June 9, 2016, Florida Supreme Court

More Blog Entries:

GEICO v. Macedo – Auto Insurer Must Pay Plaintiff Attorney Fees, May 20, 2016, Miami Work Injury Lawyer Blog

Normally, all attorney fees for auto accident lawsuits are doled out on a contingency fee basis by the plaintiff, which means they are based on a percentage of the final damage award and are only paid if the case is won. However, what F.S. 768.79(6)(b) says is that if a plaintiff serves a settlement offer to the defense which is rejected and then the plaintiff goes on to secure a judgment that is at least 25 percent higher than that settlement offer, plaintiff is to be awarded reasonable costs, including investigative expenses and attorney’s fees incurred from the date the offer was served.

That means a portion of your legal bill could be paid by the defendant if they refuse to take you up on a reasonable settlement offer. It’s intended as a means to encourage settlement to save the time and expense of trial. 

In the recent case at issue, GEICO v. Macedo, plaintiff suffered injuries after a Florida car accident with a driver who was insured by defendant company. Before the case went to trial, plaintiff extended an offer to the defense for $50,000. At the time, GEICO was not a party to that case, which is common, as people can’t sue insurance companies right off the bat. They must first establish liability of the insured, and then pursue the insurer for payment.

However, even though GEICO wasn’t a party to the case, it was providing the insurer with a defense, pursuant to the terms of the auto insurance policy, as is also common. So when plaintiff extended her proposed settlement agreement, it was GEICO, by and through the legal counsel it was providing to defendant, who turned down that offer.

The case went to trial and the jury sided in favor of plaintiff. What’s more, jurors decided to award plaintiff four times as much as her proposed settlement agreement.

From there, plaintiff joined GEICO as a defendant to the action and sought collection of costs and fees, pursuant to F.S. 768.79(6)(b). The trial court granted her request.

GEICO appealed. The argument was that because it wasn’t a defendant in the initial action, it could not be liable for the decision of legal counsel not to agree to the settlement.

The appeals court disagreed. As it determined in the earlier case of New Hampshire Indemnity Company v. Gray, in which the court found the insurer’s notation in the policy that it would cover “other reasonable expenses incurred at our request” to include expenses associated with deciding to take a case to trial rather than settle it. Just like in the Gray case, the insurer in Macedo extended a policy that gave it the sole right to litigate and settle claims. It was also contractually required to pay for all legal costs it incurred in doing so. There was no definition of legal costs, nor was there any mention of exclusions.

Therefore, insurer will be required to pay those costs. However, the court did certify conflict with a sister court on the same issue.

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

Additional Resources:

GEICO v. Macedo, May 6, 2016, Florida’s First District Court of Appeal

More Blog Entries:

Car Accident Lawsuit Names Snapchat as Defendant, May 3, 2016, Miami Car Accident Attorney Blog

“If we get some of your bills, do we have permission to pay your medical providers directly?”

That’s a question that I’ve started seeing when GEICO takes recorded statements of some of my clients (and I can only assume that other insurance companies will follow behind).  It seems innocuous.  The client says, “yes.”  Of course, that would be great.

It’s terrible.

Agreeing to this simple request can really hurt your accident claim.  Why?

Medical expenses are funny.  For most medical providers, there are at least two numbers for medical bills.  First, there is the “rack rate” — the full price rate that the medical providers try to charge those without insurance.  Second, there is the “insurance rate” — the contractual rate that the medical provider and health insurance companies agree is a proper charge for a particular service.  (And in reality, these insurance rates can be different for every different health insurance company, Medicare, Medicaid, and so on.)

Which rate is charged, has an impact on your case.

By offering to pay the bill directly, GEICO and other carriers are trying to get permission to go to your medical providers and try to cut your case out from under you.  They’ve paid something they’re going to have to pay anyway, often at a lower rate than you would be able to recover from them, and in the process, they’re decreasing the value of your claim while decreasing their risk.  It’s all good to them.

It’s also taking money out of your pocket.  If hospital A has a $10,000 bill but is willing to accept $7,500 (and I’m making these numbers up), then if GEICO pays the hospital directly, it saves itself $2,500.  However, if the lawsuit goes forward and GEICO has to pay you, the client, the $10,000 and then you pay the hospital the $7,500, then that $2,500 savings goes to you and not the hospital.

So agreeing to this seemingly innocent request is costing you money!

There are a number of ways that an insurance company can use a recorded statement to its advantage.  While this is a relatively new tactic, it’s not the only tactic.  We always tell our clients that they shouldn’t agree to a recorded statement without having a lawyer present to help protect the clients’ rights.

If you or a loved one has been in a car wreck and have been contacted about a recorded statement, please call us at (512)476-4944 and let us help you before that statement occurs.

The survey asked about:

1. customer service
2. claims satisfaction
3. value for price paid
4. percent who plan to renew
5. percent who would recommend the company

Based on their responses, the top auto insurance companies were:

1. USAA
2. State Farm
3. Farmers
4. GEICO
5. Auto Club of Southern California
6. Nationwide
7. Liberty Mutual
8. Allstate
9. American Family
10. The Hartford
11. Erie Insurance Group
12. Progressive
13. MetLife
14. Travelers
15. Mercury General

It’s important to note, having sued drivers covered by most of these companies, I would have a different ranking.  My ranking would largely be focused on what company is most reasonable in willing to admit when their drivers caused a problem, and who are willing to protect their customers by making fair settlement offers when their customers do something wrong.

Using my criteria, I’d put USAA, GEICO, Liberty Mutual, and Hartford in a top group.  I’d put MetLife, Nationwide, Travelers and State Farm in a middle group.  I’d put Farmers, Allstate, Progressive, and Mercury in a bottom group.

My criteria is certainly different than that used in the survey, but I also think it’s an important perspective when you’re buying insurance.  Heaven forbid, if you do cause a wreck, you want to make sure your company protects you.  When the company doesn’t offer enough and forces a lawsuit to be filed against you, then that’s likely the insurance company not doing its job.