• 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 case of In re Estate of Woody v. Big Horn County, stems from the December 2011 death of 21-year-old Kenneth “Kenny” Woody IV. He was a passenger in a vehicle driven by a 23-year-old friend of Woody’s. That man, Dustin Wegner, was already on probation for an earlier DUI in which four people had been injured. A sheriff’s deputy reportedly spotted the vehicle and attempted to initiate a traffic stop. But Wegner didn’t pull over. Instead, he fled and a chase ensued, with both vehicles reaching speeds in excess of 100 mph, according to The Billings Gazette.

Wegner eventually lost control of the truck, and it flipped several times, tossing both men from the vehicle. Woody was transported to a nearby hospital and died the next day. It was later revealed Wegner’s blood-alcohol level that night was 0.28 – 3.5 times the legal limit of 0.08. He was arrested and later convicted of vehicular homicide and sentenced to five years in prison. He has since been released on probation. 

Now, Woody’s family is seeking accountability from the sheriff’s office for wrongful death and survivorship damages, alleging the high speed chase should never have been initiated in the first place. Decedent’s parents as representatives of his estate, filed a claim for $750,000 in damages back in September 2014. That claim letter indicated the county had 120 days from the date of the letter to resolve the claim without necessity of litigation. The county commissioners later acknowledged they had received the letter, but they never actually responded.

In March 2015, the estate formally filed their lawsuit against the county in which they alleged negligence, negligent infliction of emotional distress, survivorship and wrongful death. A couple weeks later, the county responded with a motion to dismiss for failure to state a claim, asserting the estate didn’t meet the three-year statute of limitations for such actions. Estate objected to the motion, arguing the claim letter it had submitted tolled the statute of limitations.

The district court granted the county’s motion to dismiss, but the Montana Supreme Court reversed.

Neither side disputes that the action first accrued on the date of the crash in December 2011. And neither state disputes that all civil actions have to be commenced within the periods prescribed, except when another law specifically provides a different limitation.

In Montana, as in many other states, claims against the state and/or political subdivisions of it first have to be presented to the county as a claim before a lawsuit can be formally filed. There is no tolling provision in that requirement, but the law does say actions against the county for claims that have been rejected have to be initiated within six months of that first rejection. But the county never rejected the claim in this instances. It never acknowledged it at all, really, except to say it had been received.

The state supreme court sided with the state, based on prior case law precedent that essentially held that so long as the initial claim was filed within the three-year statute of limitations, plaintiff had six months from that date – or the date of the first rejection – to file their claim. Because no rejection came, they had the full six months, which meant the claim was timely filed.

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

Additional Resources:

In re Estate of Woody v. Big Horn County, July 26, 2016, Montana Supreme Court

More Blog Entries:

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

Authorities told 7News Miami the operator was a 25-year-old man who lost control of the personal watercraft while his girlfriend and another woman were riding on the rear. He was allegedly traveling at a high rate of speed and traveling in circles (also sometimes referred to as “loops”). A commissioner ascertained the operator lost sight of where he was, which is when he struck the channel marker.

The operator was ejected from the WaveRunner, striking his head on the channel marker. Witnesses nearby pulled him from the water and initiated CPR. He was later pronounced dead at the hospital. His girlfriend was hospitalized with a serious leg injury. The third passenger was treated and released. 

The decedent reportedly owned a barber shop and frequented Picnic Island on the weekends.

Officials are still investigating the crash, and it’s not yet clear whether drugs or alcohol may have played a role. It’s also not known whether the victim rented the WaveRunner or whether he owned it. These distinctions could make a difference in terms of liability.

The Florida Fish & Wildlife Conservation Commission (FWC) reported that in 2015, there were a total of 161 personal watercraft accidents reported statewide. That was out of more than 117,000 registered personal watercraft in the state. There were a total of four deaths and nearly 130 injuries.

Miami-Dade has more personal watercraft accidents than any other county, likely owed to the fact that we have more shoreline and are a more popular vacation destination. Last year, there were a total of 33 personal watercraft accidents reported in Miami-Dade. Although there were no deaths, there were 29 serious injuries.

Broward County, meanwhile, reported four personal watercraft accidents resulting in four injuries, but no deaths.

Monroe County, meanwhile, ranked No. 2 for personal watercraft accidents, with a total of 25 last year. Pinellas County had 24.

Personal watercraft are sometimes referred to by the brand names, which include:

• WaveRunner
• Jet Ski
• Sea Doo
• AquaTrax
• Sealion
• Tigershark

The FWC reports the majority of these crashes occur while these vehicles are either cruising, changing direction or changing speed. The primary types of accident resulting in injury include:

• Collision with vessel;
• Collision with fixed object;
• Fall on personal watercraft;
• Fall overboard.

In many cases, investigators find that operators lack experience and take on operation of the vehicle without adequate instruction or precaution. Experienced personal watercraft operators most frequently run into trouble when they operate the vehicles recklessly, unnecessarily fast or under the influence of alcohol or drugs. Some models of Jet Skis and WaveRunners are capable of very high speeds, and that has proven dangerous on many occasions.

Another possible avenue of liability is to explore the possible defect or malfunction of the machine itself. These type of issues would be pursued as a product liability claim. One of the most common involves injuries from the jet stream propulsion, which is extremely powerful and has been known to cause severe internal injuries to riders who are thrown off the back of the vessels.

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

Additional Resources:

1 killed, 2 injured in personal watercraft accident off Miami, July 31, 2016, By Walter Morris, 7News Miami

More Blog Entries:

State Farm Mut. Auto. Ins. Co. v. Jakubowicz – Auto Insurance Policy Ambiguous, August 2, 2016, Miami Injury Attorney Blog

Take the recent case of State Farm Mut. Auto. Ins. Co. v. Jakubowicz. This was an Indiana Supreme Court case in which the insurer’s underinsured motorist policy contained conflicting requirements. On one hand, insureds were required to file their UIM claim within three years. On the other hand, insureds could not first file a UIM claim unless and until they had exhausted the insurance coverage of the at-fault underinsured motorist. There was no mention of how to proceed if the insurance coverage of the at-fault motorist hadn’t been exhausted by the time that three-year time clock was up.

When the terms of an auto insurance policy are ambiguous, claims can sometimes be negotiated fairly out-of-court with the help of an experienced attorney. However, there are many situations in which the insurer is not going to be satisfied to do that. Your car accident lawyer has to be prepared to take the case to court and fight, if need be. 

In the Jakubowiczs case, plaintiff and her two sons were seriously injured in a car accident with an underinsured driver.

For those not familiar, an underinsured driver is one who does have insurance coverage, but it is not enough to cover the full extent of damages suffered by the person injured. This is common, as some of the most serious auto collisions can result in hundreds of thousands or even millions of dollars in damages for medical expenses, pain and suffering, property damage and lost wages and loss of future earnings.

The statute of limitations on personal injury claims in Indiana is three years (it’s four in Florida). Plaintiff filed her claim against the at-fault driver one year after the car accident, seeking damages for medical expenses and property damage on behalf of herself and her sons.

Just shy of three years, she notified the insurance company she planned to file an underinsured motorist claim. However, it wasn’t until after that three-year mark that she formally filed a motion for leave to amend her complaint to include her own insurer and a claim for underinsured motorist coverage.

Trial court granted her leave, but the insurer soon thereafter moved for summary judgment, arguing the three-year time limit – per the language of the policy – was up and she had waited to long to file her UIM claim.

Plaintiff opposed that motion, arguing she didn’t have a choice but to wait because she hadn’t yet exhausted the UIM driver’s auto insurance coverage.

Trial court denied the insurer’s motion for summary judgment. The appellate court reversed. The case went to the state supreme court, which reinstated the ruling of the trial court.

In its finding, the state supreme court ruled that while insurers are free to limit the coverage in their policies, those limitations have to be clearly expressed in order to be enforceable, and they can’t be in conflict with other provisions of the contract. Where provisions that limit coverage aren’t plainly and clearly expressed, the policy is going to be construed most favorably to the insured – and that’s what happened here.

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

Additional Resources:

State Farm Mut. Auto. Ins. Co. v. Jakubowicz, July 26, 2016, Miami Car Accident Lawyer Blog

More Blog Entries:

Florida Jury Awards $42 Million to Quadriplegic Man in DUI Case, July 30, 2016, Miami Car Accident Attorney Blog