Why would anyone agree to such a system? The truth of the matter is, most people don’t realize they are. The agreement is often stuffed in a mountain of admissions paperwork right when they are first signing in – an overwhelming experience as it is.

Although courts do recognize the validity of such agreements as binding contracts, there have been an increasing number of cases in which courts have decided these agreements violate public policy or for other reasons are not valid. The recent case of Tarvin v. CLC of Jackson is one of those. This was a case recently weighed by the Mississippi Supreme Court, but the legal principles are still relevant to those of us here in Florida.

According to court records, plaintiff’s father, decedent, was admitted to defendant nursing home in August 2007. Plaintiff, his daughter, signed the admission agreement on his behalf as his “responsible party.” Two other family members also signed the agreement as “family members,” but the patient himself did not sign the document. Among the many terms and conditions of his admission was an arbitration agreement.

He lived at the facility for more than three years. Then in January 2011, he was rushed to the hospital when staff discovered numerous life-threatening sores all over his body. Despite receiving treatment at the hospital, patient died in May 2011.

Pressure sores are one of those kinds of nursing home injuries that should just never happen. They are caused by a person sitting or laying in one position too long without being cleaned or turned.

Plaintiff as representative of decedent’s estate filed a wrongful death lawsuit against the nursing home alleging her father had suffered serious nursing home abuse and neglect that resulted in weight loss, malnutrition, dehydration, skin tears and of course, the sores.

Defense in its response moved to compel arbitration. Attached in its motion were documents indicated that decedent’s doctor, prior to his admission, wrote in medical records that he was “obviously demented at this time.”

Plaintiff responded that first of all, the company waived its right to compel arbitration because it participated in litigation. But beyond that, she had no legal authority to bind her father to that arbitration agreement. She was not his listed power of attorney or conservator.

Trial judge upheld the motion to compel, citing the patient’s doctor’s report indicating he did not have the legal capacity to sign on his own behalf. Plaintiff countered that the physician’s notes were based on the doctor’s observations that her father was disoriented, but there was never a diagnosis made with regard to his mental state.

Plaintiff appealed to the state supreme court, arguing no valid arbitration agreement exists. The state supreme court agreed. The court ruled the Uniform Health Care Decisions Act requires a finding by a primary physician that a person lacks capacity before a surrogate can be assigned to make health care decisions for that person. The record here didn’t support that finding. The court remanded this case back to the lower court 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:

Tarvin v. CLC of Jackson , June 23, 2016, Mississippi Supreme Court

More Blog Entries:

Enrique v. State Farm – Bad Faith Insurance Lawsuit, June 24, 2016, Miami Nursing Home Abuse Lawyer Blog

Florida’s bad faith civil litigation law, F.S. 624.155(1)(b)(1), holds that an insurer commits bad faith when it fails to act fairly and honestly toward its insured and with due regard for his or her interests, even though it could have done so given the circumstances.

Of course, that definition leaves a lot to interpretation, which is why we often have to rely heavily on case law. Some examples of bad faith insurance might include:

• An insurer delaying, discounting or denying payment without reasonable basis;
• Failure to acknowledge or reply promptly once receiving notice of a covered claim;
• Failure to affirm or deny coverage in a reasonable time;
• Failure to conduct a prompt, thorough and proper investigation.

Claims of bad faith insurance following Florida car accidents should only be handled by a legal team with extensive experience. They are often complex and challenging – but the payoff can be substantial (three times the original damage award).

In the recent case of Enrique v. State Farm, it was alleged the auto insurer had engaged in bad faith by refusing to render the full $100,000 of its uninsured motorist (UM) coverage limits to its insured after she was struck and seriously injured by a driver with no insurance. At issue was whether the insurer acted reasonably in refusing to pay the claim, as it argued plaintiff’s knee injuries were actually caused by a pre-existing condition and not the crash.

According to Delaware Supreme Court records, an uninsured driver in 2005 smashed into plaintiff’s car by improperly turning into her lane. Plaintiff suffered a fractured rib, soft tissue injuries abrasions and trauma to her left knee, which rendered her a candidate for arthroscopic surgery.

Plaintiff, a cafeteria worker, could not go back to work for nine months after the accident. Even when she returned to work, she was on light duty for several months.

After exhausting her personal injury protection benefits, plaintiff sought recovery for her losses and injuries through her UM policy, the limits of which were $100,000. Due to high claims volumes, the claim had to be reassigned and the new adjuster consulted a number of other employees on the claim. The supervisor ultimately authorized the adjuster to settle for between $17,500 to $22,500. The adjuster had the claim valued at between $25,000 and $30,000. He offered her $17,500, which she rejected.

The adjuster reportedly had reservations about the value because plaintiff apparently had pre-existing knee problems. Adjuster made another offer to settle for $19,000, which plaintiff again rejected.

Throughout these negotiation processes, there were numerous concerned raised by defendant of plaintiff’s pre-existing knee injury and questions of causation. Adjuster at one point noted it wasn’t clear to what extent the accident was the cause, but after receiving an updated medical history, adjuster put the claim at between $35,000 and $50,000.

There were then significant lapses in the time during settlement negotiations. Plaintiff asked for $165,000. An attorney for defendant told adjuster at that point the claim could be worth as much as $50,000 if the accident caused her knee injuries. The insurer then offered her $25,000. She rejected that offer and continued to demand the original amount, $65,000 in excess of the policy limit.

Insurer’s final offer was $45,000, while plaintiff was willing to settle for $90,000. They still could not agree. The case went to trial and plaintiff was awarded $260,000. Once the state supreme court affirmed, defendant paid the full $100,000 policy limit. But then plaintiff pursued her bad faith claim, seeking recovery of the additional $160,000 on that judgment, plus interest and punitive damages.

However, the trial court granted summary judgment to defendant, a decision later affirmed by the supreme court on the basis plaintiff had not proven the insurer displayed reckless indifference in handling the claim because of the questions of causation that arose due to her preexisting knee condition.

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

Additional Resources:

Enrique v. State Farm, June 14, 2016, Delaware Supreme Court

More Blog Entries:

Lik v. L.A. Fitness – Gym Injury Lawsuit to Proceed, June 9, 2016, Miami Car Accident Lawyer Blog

According to ESPN, Walker, a Miami native, was traveling west on Northwest 75th Street on a Honda dirt bike around 8 p.m. on a Thursday. Miami-Dade police say he then collided with a Ford Escape that was traveling south on Northwest 21st Avenue.

The auto accident happened at a two-way traffic stop. Walker had not been wearing a helmet. He initially survived the impact, but was transported to Ryder Trauma Center at Jackson Memorial Hospital in Miami in extremely critical condition. There was extensive trauma to his head. Specifically, the swelling was significant and his brain had gone too long without sufficient oxygen.

Walker’s agent would later say he had no idea his client even owned a dirt bike. He said he was stung by the fact that a young man with such a promising career and his whole life ahead of him lost his life on a dirt bike.

He pleaded with others not to ride them in the street.

“Ride it off road,” he said, through tears. “Ride in the dirt. That’s why they call it a dirt bike. And wear a helmet.”

Police are still investigating the circumstances of the crash and whether the SUV driver, who stayed at the scene and was not injured, may have been all or partially to blame.

The Miami car accident lawyers at Chalik & Chalik know there aren’t a wealth of statistics on dirt bike accidents – at least not on the road – because they generally aren’t ridden on the road. What we do know is that when “off-road motorcycle riding among children and teens” was analyzed by the Centers for Disease Control and Prevention (CDC) in 2006, they found there were an estimated 23,800 children and teens under age 19 treated in hospital emergency departments for off-road motorcycle injuries. Those between the ages of 12 and 15 had the highest rates of non-fatal injuries; Patients over 16 accounted for 70 percent of injuries, with most being male and the majority driving the bikes. Nearly 8 percent of those injured had to be hospitalized.

Called dirt bikes, trail bikes and off-road motorcycles, operators and passengers of these vehicles are usually most susceptible to injuries caused by hazards like uneven terrain, trees and fences. Of course, when they are ridden on the road, there is a significant danger of being struck by a car or other automobile.

Another study published in 2004 in the journal Trauma sought a comparison of the spectrum of injuries and outcomes between off-road and on-road motorcyclists. They found there wsa no significant difference in terms of:

• Helmet use
• Loss of consciousness
• Initial systolic blood pressure
• Initial Glasgow Coma Scale
• Initial Revised Trauma Score
• Hand, wrist, forearm, arm, clavicle, foot, ankle, femur, pelvis, spinal or head injuries.

On-road motorcyclists, however ,were more likely to require blood transfusions and suffer blunt chest, skin and abdominal trauma. They were also more likely to die.

Walker had attended Miami Northwest High and was later recruited by Texas Southern University to play football. The Ravens selected him in the fourth round of the 2015 National Football League draft, and he played eight games in his rookie season, which he dedicated to his father, who died a year earlier of a heart attack.

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

Additional Resources:

Ravens mourn loss of 23-year-old cornerback Tray Walker, March 20, 2016, ESPN.com

More Blog Entries:

Lowman v. State Farm – Fighting for Damages in Crash Case, March 14, 2016, Miami Accident Lawyer Blog

Released just this month, the 2014 Motor Vehicle Crashes Overview report revealed that:

• A total of 32,675 people died in highway crashes in 2014;
• This was down from 32,894 fatal car accidents in 2013;
• This represented a 0.7 percent increase in traffic deaths that year;
• This follows a general decline in traffic deaths that began in 2006.

Encouraging as all this is, it’s not the end of the story, unfortunately. That’s because preliminary figures comparing the first nine months of 2015 to the first nine months of 2014 show there was actually a 9.3 percent increase. 

In that report, the NHTSA showed:

• 26,000 people died on U.S. roads in the first nine months of 2015;
• 23,796 people died in traffic accidents in the first nine months of 2014;
• In the Southeastern U.S., the number was up 16 percent;
• In the Northwest, the number of crash deaths spiked by 20 percent.

Overall, traffic deaths fell by 22 percent from 2000 to 2014.

So what does all this tell us?

While certainly we are on the overarching right path, we still have a long way to go. In particular, some of the issues that are consistently tripping us up on the road:

• Distraction;
• Alcohol/ drug impairment;
• Careless/ reckless;
• Speeding.

Although the most recent figures suggest we’re on an upward trend again, we won’t be able to say for sure until the full numbers from 2015 are released, likely sometime later this year.

But we can still identify some over-arching issues and victories based on the full-year 2014 report. Among them:

• There were 219 fewer traffic deaths from motor vehicles in 2014 than in 2013;
• In 10 years, we have seen a 25 percent drop in the number of traffic fatalities;
• The estimated number of people injured in traffic crashes increased by 25,000 in 2014 compared to 2013. Although the NHTSA called this a “not statistically significant” increase (because nearly 2.5 million people are injured in crashes every year), it is still substantial. It may also indicate that some of those who might otherwise be killed in car accidents are surviving, perhaps because of better automotive technology;
• The fatality rate per 100 million vehicle miles traveled dropped to 1.07, which is the lowest it has ever been since the NHTSA started collecting data in 1975 via the Fatality Analysis Reporting System (FARS);
• In all of 2014, there were 9,967 people killed in traffic crashes wherein alcohol impairment was a factor, representing a decreased of 1.4 percent;
• Death among passenger vehicle occupants, which had been inching upward since 2012, for the first time dropped by 1 percent;
• The number of motorcycle accident deaths fell by 2.3 percent, resulting in 106 fewer bikers killed on U.S. roads, making it the second year in a row decrease in this category;
• Pedestrian fatalities, however, increased by 2 percent year-over-year from 2013 to 2014. It was the highest number of pedestrian deaths since 2005 and was in line with a general increase that has been noted since 2009.

Another notable change is the fact that while passenger vehicle occupant deaths are down, motorcyclists, pedestrians and bicyclists – all vulnerable road users – now comprise a more significant portion of traffic accident victims than ever before.

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

Additional Resources:

2014 Motor Vehicle Crashes: Overview, March 2016, National Highway Traffic Safety Administration (NHTSA)

More Blog Entries:

Lowman v. State Farm – Fighting for Damages in Crash Case, March 14, 2016, Miami Car Accident Attorney Blog

That is, that the negligent actions of defendants caused plaintiff’s injuries  and therefore plaintiff is entitled to compensation. Depending on the case, one element may be more tough to prove than the other, but it’s important not to neglect any of them.

In the recent case of Lowman v. State Farm, plaintiff was able to establish that her insurance company was liable in her uninsured motorist (UM) coverage case. However, when it came to the issue of damages, jurors awarded her $0. When she appealed the case to the Nebraska Supreme Court, she asserted it was contradictory for jurors to find in her favor on liability, and then award her no damages. The state supreme court disagreed, citing past case law precedence. 

According to court records, plaintiff was injured in a car accident with a vehicle driven by an uninsured driver. More than two years after the crash, plaintiff and her husband filed a complaint against their own auto insurance company, seeking collection of underinsured motorist coverage.

Before trial, insurer admitted that the underinsured driver was negligent. Still, the case went before a juror on the issues of causation and damages. Just before trial, plaintiff withdrew her claim for loss of earning capacity. She also conceded that all of her medical bills had been paid by her health insurance company. Therefore, plaintiff’s attorneys only argued for damages with regard to pain and suffering.

At the close of trial, jurors were given a single verdict form that indicated whether they found in favor of plaintiff and if so, for how much. Jurors indicated they did find in favor of plaintiff, but awarded $0 in damages.

Plaintiffs requested a new trial, but that request was denied, so they appealed. They argued the court erred in giving jurors a verdict form that allowed jurors to find in favor of them, yet award no monetary damages. The state supreme court disagreed.

The court first cited the 1954 case of Ambrozi v. Fry, in which jurors in a negligence lawsuit found in favor of plaintiff, but awarded no damages. Trial court ruled this was an invalid verdict and sent it back. Jurors returned with a damage award of $75. Plaintiff sought a new trial, which was granted. Defendant appealed. The state supreme court ruled it was clear the jurors intended to find in favor of the plaintiff, and yet award no damages. However, the court still affirmed the award of a new trial because the injuries suffered by plaintiff clearly exceeded $75, and thus the jury’s award was inadequate.

Since then, the court has affirmed a number of other cases in which jurors found in favor of plaintiff, and yet awarded $0 in damages.

Of course, this isn’t necessarily a common outcome. However, the issue of damages is not one that can be overlooked, and must be approached with as much meticulous analysis and research as the issues of negligence and causation.

Damages may be proved by presenting medical records, therapy reports, testimony from family members, expert witness conclusions, pay stubs and analysis by those who can predict your future would-be pay, given your career trajectory before the injury and more.

Our goal is to maximize our clients’ compensation in the best interest of justice and their future.

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

Additional Resources:

Lowman v. State Farm, Feb. 26, 2016, Nebraska Supreme Court

More Blog Entries:

“Frivolous Injury Lawsuits” Problem a Myth, Feb. 27, 2016, Miami Car Accident Attorney Blog

The first reports on a study that finds that 60% of teen driver wrecks result from distractions.  This is probably not a surprise to any of us.  But the study was noteworthy for me because of the way it was conducted — the AAA Foundation watched nearly 1,700 in-car videos of teen drivers who were involved in wrecks to diagnose what the teens were doing immediately prior to the wreck.  The two biggest factors were talking to others in the car and using a cell phone, either for talking or for texting.  If you click the link, there is a video story that shows some of the video excerpts from the wrecks.  This is certainly something I’m going to make my teen driver watch.  Passing on this type of information should be of what we teach our kids.

The second article is a Wall Street Journal article entitled Better Ways To Teach Teen Drivers.  The story is based on a 2014 study that placed video cameras in parents’ cars to review what they were teaching their kids.  The analysis found that, by and large, teens are being properly taught the mechanics of driving — how to turn, how to control speed, etc.   Unfortunately, the study found that parents did not do a good job of teaching teens accident avoidance — how to recognize hazards, how to avoid those hazards, etc.

The best line in the article was discussing the fact that parents spend a lot of time on things they had trouble with, such as parallel parking.  But as the story noted, “Most people don’t get killed parallel parking.”  Instead, the article encourages parents to spend more time working on hazard recognition and judgment — making left turns into oncoming traffic, how to merge on and off highways at high speed, etc.  The article also encourages you to work with your kid in bad weather conditions, in crowded roads, and the like so that the teens’ first time experiencing these things are not while they are alone.

It pains me to give credit to an insurance company, but State Farm has a teen driving program called Road Trips on its teen driving website, http://teendriving.statefarm.com, that can help you with the process.  The website also has a 3-d video tool that helps kids learn to scan for hazards as they’re driving.

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.

Usage-based insurance policies are already expanding at Allstate and many other insurers. In exchange for allowing the insurance company to install a monitoring device on their vehicles, policyholders receive discounts for safe driving. Allstate’s monitoring device is called Drivewise and was introduced in 2010.

Tom Wilson, Allstate’s CEO, said the expansion of the Drivewise program would allow parents to know where their kids are if they are driving and would also include ways of teaching teenagers better driving skills by giving them a driving score based on certain algorithms. Data collected by the Drivewise device will show up on a user website where parents can look at a “report card” that measures safe driving.

State Farm, another auto insurer, offers online products to promote safe driving, including Road Trips, which gives three-minute tutorials on driving skills, and Road Aware, an online tool that helps teens learn to anticipate road hazards. For U.S. teenagers, traffic collisions are the leading cause of death. After declining steadily for years, deaths of teen drivers increased in the first six months of 2012.

Usage-based policies like Allstate’s Drivewise are becoming more common as technology advances to allow for the collection of more driving data. The technology in question is known as telematics, which refers to a combination of telecommunications and informatics. The devices record data when the car is in use and can allow insurance companies to charge customers only for the time when the policy is in use and to offer discounts on premiums as a reward for safe driving habits. The idea is popular among many consumers, as it can result in lower premiums and has an inherent fairness. Auto insurance agents also welcome the idea as a way to attract consumers in a competitive market.

Insurers’ monitoring devices are a consumer choice, but almost all new cars are also equipped with electronic data recorders, or “black boxes,” that keep track of information like speed, braking, seat belt use and steering. In the event of a crash, the recorders, which are similar to black boxes in airplanes, store data from a few seconds before and after the air bag is deployed, to assist in determining the cause of the accident.. The use of data recorders in automobiles has raised issues of privacy and data ownership that have yet to be resolved.

Bob Briskman is a Chicago vehicle accident attorney with Briskman Briskman & Greenberg. To learn more call 1.877.595.4878 or visit http://www.briskmanandbriskman.com/.

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