Car Accidents

June 20, 2013

Federal Officials Adopt Provisions Limiting Truckers’ Maximum “Hours Of Service” And Imposing New Penalties For Violations

Earlier this year, the U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (“FMCSA”) adopted new regulations revising the hours-of-service (“HOS”) safety requirements for commercial truck drivers, which become effective July 1, 2013. HOS regulations limit the number of hours a truck driver may operative his or her vehicle during any given period of time.

The new rule retains some of the old regulation’s provisions, such as an 11-hour daily driving limit, but also changes and adds others. Specifically, new regulation reduces the maximum number of hours a truck driver can work in a given week by twelve, from 82 down to 70.

The rule also requires drivers that have just worked eight hours to take a break of at least 30 minutes before driving again. Finally, the rule requires drivers that max out their weekly hours to rest at least two nights a week from 1:00 a.m. to 5:00 a.m., which, according to the FMCSA, is when the driver’s “24-hour body clock demands sleep the most.” The rest requirement is part of the regulation’s “34-hour restart” provision that permits drivers to restart the clock on the work week by having at least 34 consecutive hours off-duty.

May 23, 2013

Florida Court of Appeals Declares That Permanency Of Car Accident Injuries Is A Decision For The Jury

by Gerson & Schwartz, P.A.

This past March, Florida’s Second District Court of Appeals tackled an important issue in the case of Smith v. Llamas, addressing the inquiry as to whether a Florida car accident victim’s injuries are temporary or permanent and if this question should be answered by a jury. The Court ultimately held that the permanency of injuries is a question of fact, and, as such, is the sole province of the jury.

In Smith, Fernando Llamas was injured in car accident when his vehicle collided with that of Shana Smith. Llamas sued Smith for negligence, claiming that that he had suffered significant injuries to his neck and knee in the accident. Smith maintained that she was only partially responsible for the collision and, pursuant to Florida’s comparative negligence doctrine, her liability must be reduced by the proportion of Llamas’ liability.

At trial, Llamas presented expert testimony by a neurosurgeon stating that Llamas’ neck injury was permanent due to the fact that surgery could not completely eliminate the injury. In rebuttal, Smith’s expert, an orthopedic surgeon, testified that Llamas’ neck injury was not permanent and was not caused by the accident.

May 22, 2013

Florida Court Holds That Co-Owners Of A Vehicle Are Liable For Each Other’s Negligence

by Gerson & Schwartz, P.A.

Earlier this year, Florida’s Second District Court of Appeals addressed the question as to liability of a co-owner of a vehicle for injuries caused by the negligent driving of the car’s other owner. In Ortiz v. Regalado, Andy Ortiz (“Andy”) was driving a car which he co-owned with his father when he collided with the vehicle of Lourdes Falcon, killing Ms. Falcon’s daughter who was a passenger.

Ms. Falcon filed a lawsuit, claiming that Andy was negligent in causing the accident and that his father was vicariously liable for Andy’s negligence as joint owner of the vehicle. As this blog has discussed before, vicarious liability, or respondeat superior, is a legal theory under which the superior, in this case Andy’s father, is held liable for the acts of his or her subordinate, in this case Andy.

After a trial, a jury found that Andy and Ms. Falcon were each 50% at fault for the accident and awarded Ms. Falcon a judgment for approximately $1.4 million in damages. Under Florida’s comparative negligence law, each party to an accident is held proportionately liable for damages resulting from his or her negligence. Accordingly, the court ordered Andy and his father jointly liable to pay half of the $1.4 million judgment.

May 2, 2013

No Texting While Driving Passes in Florida Senate

by Gerson & Schwartz, P.A.

Texting while driving is a rampant problem across the US, which often times leads to catastrophic car accidents. The state of Florida is one of the only remaining states who had not yet passed a law banning texting while driving, until now. The senate has approved and passed Bill 52 making texting a secondary violation for drivers, who are cited for a primary driving infraction. If it is discovered, that a driver is typing on any device whatsoever, he or she will receive an additional citation for this, now illegal activity.

Statistics indicate that thousands of teens and adults are killed each year due to texting and driving. Miami auto accident attorneys, as well as law enforcement deal with these critical cases on a regular basis. The dangers of distracted driving have been proven over and over again throughout the world. According to Distraction.Gov, drivers who use a hand held device are 4 times more likely to get into life threatening car accidents. Sending a text or an email can take a driver’s eyes of the road for an average of 4.6 seconds, resulting in serious car accidents that cause injury to drivers, passengers and pedestrians, alike.

Personal injury attorneys Nicholas and Philip Gerson have seen firsthand what can happen when a careless driver is holding the wheel and a hand held device at the same time. They have handled numerous cases in which a driver who sent a quick text or email caused serious harm to their clients. Wrongful death cases or cases of catastrophic injuries are the result of driver negligence.

If drivers were not otherwise distracted, they would have been paying closer attention to the road. Texting or sending emails while driving takes the driver out of the moment and away from noticing the street signs, lights, or innocent pedestrians. Frequently, teen agers who are new drivers are easily distracted by texting while driving. Due to their young age and inexperience, children’s slower reflexes become a handicap for them while navigating the road. 11 teenage drivers die every day in the US due to texting and driving.

April 22, 2013

What Constitutes Bad Faith On The Part Of An Insurance Company Under Florida Law?

by Gerson & Schwartz, P.A.

Typically, when a person is injured in a car accident, the insurance company of the at-fault party will step in and attempt to settle the dispute on behalf of its insured. Sometimes, however, the insurance company is unable or unwilling to settle the claim, forcing the injured party to sue. The injured party may later receive a judgment against the insured party that exceeds the amount of the insured’s coverage, leaving him or her on the hook to the injured person for the full amount of the award less what was covered by under the insurance policy.

Under Florida law, bad faith claims allow the insured to sue his or her insurance company to recover the difference between the limit of coverage and the amount of the judgment if the insurance company acted in “bad faith” in attempting to settle the injured party’s claims. Last month, the United States District Court for the Middle District of Florida, issued an opinion in the case of Markel American Insurance Company v. Flugga discussing the elements of a bad faith claim and the elements necessary to establish such a cause of action.

In Flugga, Mark Flugga was found to be at fault for a 2010 motor vehicle accident in which he, his passenger, and two individuals in another vehicle were injured. Flugga’s insurance company, Markel American Insurance Company, was notified of the accident four days after it occurred.

April 15, 2013

United States Supreme Court Strikes Down Arbitrary State Medicaid Recovery Legislation

by Gerson & Schwartz, P.A.

Last month, the U.S. Supreme Court issued a landmark opinion in the case of Wos v. E.M.A. that protects the rights of those who receive settlements or judgements following an accident. Specifically, the ruling prevents states from taking unnecessary large portions of the award for Medicaid reimbursements.

In WOS a victim of medical malpractice and subsequent Medicaid recipient challenged a North Carolina statute requiring that up to one-third of any settlement recovered by a Medicaid beneficiary be paid to the State as reimbursement for payments made for medical treatment. The victim estimated her damages to exceed $42 million, but she eventually settled the claims for $2.8 million. The state court approved the settlement but put one-third of the recovery into escrow pending a determination as to the amount owed to North Carolina for Medicaid payments.

While the case was pending, the North Carolina Supreme Court issued an opinion holding that the irrebuttable statutory one-third presumption was a reasonable method for determining the amount due the State for medical expenses. The Federal District Court that originally heard WOS agreed with the North Carolina Supreme Court, but, on appeal, the Fourth Circuit Court of found otherwise. The U.S. Supreme Court granted certiorari to resolve the conflict between the Fourth Circuit and North Carolina Supreme Court.

In a previous case, the Supreme Court held that the federal Medicaid statute sets both a floor and a ceiling on a State’s potential share of a beneficiary’s tort recovery. The Court determined that federal law requires an assignment to the State of “the right to recover that portion of a settlement that represents payments for medical care,” but also “precludes attachment or encumbrance of the remainder of the settlement.”
Unfortunately, the earlier case did not establish how to determine what portion of a settlement constitutes payment for medical care, allowing North Carolina to adopt the statute presuming one-third a recipient’s the recovery represents compensation for medical expenses.
Writing for a 6-3 majority in WOS, Justice Kennedy stated that the statute’s arbitrary determination that one-third of every settlement was reimbursable to Medicaid constituted a violation of the Federal Medicaid anti-lien provision.

April 5, 2013

National Safety Council Designates April As Distracted Driving Awareness Month

by Gerson & Schwartz, P.A.

Recently, the National Safety Council (“NSC”), a nonprofit organization dedicated to injury and death prevention, designated the month of April distracted driving awareness month and introduced a plan asking all motorists to participate in remedying this problem plaguing our nation’s roadways.

Distracted driving is becoming an increasingly serious issue across America. Despite a rising number of distracted driving car accidents each year, many states, including Florida, have been slow to adopt measures to curb the problem.

Indeed, Florida has yet to pass any law banning the use or cell phones in any capacity while driving. Thirty-nine states and the District of Columbia have already adopted texting while driving bans and many others have restrictions on cell-phone use. As has been discussed by this blog before, several bills proposing statewide bans on texting while driving have passed through the Florida Senate, but failed in the House of Representatives.

According to recent statistics, of the more than 170,000 crash reports filed in Florida during the first ten months in 2011, over 100 involved motorists that were texting at the time of the accident. That number is almost certainly too low, however, as most driver’s would be reluctant to admit to texting while driving. Studies have found that almost a third of motorists admit to using their to using their cell regularly while driving. Over two-thirds of drivers professed to using their cell phone while driving at least once in the previous month.

Further, according to a 2009 report compiled by the National Highway Traffic Safety Administration (“NHTSA”), 5,474 people were killed on U.S. roadways and an estimated additional 448,000 were injured in motor vehicle crashes that were reported to have involved distracted drivers. Of the distracted driving crashes resulting in the death of an individual, 995 were reported to involve a cell phone as the distraction. Of the distracted driving crashes resulting in an injury to someone, over 24,000 were reported to involve a cell phone as the distraction.

April 1, 2013

Florida International University Student Killed In Miami Hit And Run Accident

by Gerson & Schwartz, P.A.

Earlier this month, The Miami Herald reported on the unfortunate death of a Florida International University student as a result of a hit-and-run accident. Forty-three year-old Melita Jaric was walking across Southwest 11th Street in Miami, Florida, when she was struck by a car driven by an unknown individual.

Jaric suffered serious injuries, including a fractured skull and left arm, as well as experiencing substantial swelling of the brain. Jaric was transported to nearby Jackson Memorial Hospital where she remained in a coma for several days before succumbing to her substantial injuries.

Investigators interviewed neighbors following the incident, many of whom complained that the four-way-stop at the intersection is regularly ignored. According to one resident, “This street has become like a race track. Everybody passes by here. Don’t respect the stop sign.”

March 28, 2013

Florida Senate Considering Bill Repealing Personal Injury Protection Laws

by Gerson & Schwartz, P.A.

Florida legislators are considering measures that would repeal Florida’s No Fault Benefits, also referred to as Personal Injury Protection. Under the current law, Florida drivers are required to carry up to a total of $10,0000 in coverage. The benefits pays an insured’s medical bills and expenses regardless of fault. Currently, the PIP covers up to 80% up to $10,0000 of medical bills and hospital related expenses and up to 60% of wage loss. Once the 10,0000 has been exhausted, accident victims must find other sources such as making a claim against the at fault party. Of course, that assumes the driver of the other vehicle also has coverage for bodily injury. In Florida, unlike many other states, bodily injury coverage is not legally required. Just recently, Florida’s PIP laws were changed. Prior to January 1, 2013, there were not as many limitations on personal injury benefits such as who can claim them and under what circumstances. Now, the PIP laws require that injury victims seek medical attention within 14 days of an accident to receive maximum benefits. Other changes to the law require the diagnosis by a medical doctor that an accident victim sustained an “emergency medical condition”, among others. The new laws also placed limitations on the types of medical providers that could get paid under PIP. The law now excludes massage therapists and acupuncture all together. The changes, of course were the direct result of insurance companies claiming that the system was being taken advantage of by medical providers and others in car accidents. Attorney referral services and other marketing companies that advertise for car accidents have also been under scrutiny by the Florida Bar. The “savings” argument was that the changes in Florida PIP laws would allow for future lower insurance premiums for all, and that savings would then be passed on to Florida consumers drivers. Of course, that logic and reasoning is now being questioned. In the midst of the new “Affordable Healthcare Act” ready to take effect, law makers are beginning to wonder if personal injury protection benefits will be necessary. Most states, require motor vehicle operators to carry bodily injury insurance. If PIP is repealed in Florida, Florida law would likely require all vehicle owners to carry bodily injury protection as well. Miami, Florida injury attorneys at Gerson & Schwartz, PA believe changes to existing Florida No Fault Laws are a good thing. Since bodily injury coverage is not required in Florida, many accident victims are left with little legal recourse if there is no insurance coverage available. The latest news is that the Florida Senate is considering a bill and other law makers are considering other legislation to address the issue. The bill that is in the works, would repeal Florida’s No Fault Benefits. It appears that it may have a chance of being passed by both the house and senate as it appears it has gained much public attention and support.

March 27, 2013

Will My Insurer Cover Me If I have A Motor Vehicle Accident In Florida Under The New Law?

by Gerson & Schwartz, P.A.

Florida lawmakers have passed a new law which was implemented January 1 stating that all drivers from foreign countries (including Canada) must have an International Driver’s License to operate a vehicle in Florida. Many of our clients have been seeking the advice of a personal injury lawyer in Ottawa to help them determine whether they would be covered in the event of an accident if they were driving in Florida without an International License.

Victims of motor vehicle accidents seeking a lawyer in Toronto may want to consult with the head office of the Insurance Bureau of Canada, which has recently issued a statement indicating that they’ve asked insurance companies to conduct business in the same way as they have to date, therefore protecting all Canadians if such an unfortunate event should arise.

On their end, the Florida Highway Patrol has indicated they will not be enforcing the new law as it is subject to review due to potential conflict with international agreements.