Personal Injury

April 8, 2015

What Happens in Your Case Before a Lawsuit is Filed?

When people are injured because of the negligence of another, it may be natural to think that filing a lawsuit is the immediate next step in order to get reparation for injuries. But in fact, there are many steps that often occur before a lawsuit is filed, and which are necessary to develop your case, if a lawsuit becomes necessary.

Medical Treatment is Needed

The obvious first step in developing an injury case is for you to recover or try to recover for your injuries. Filing a lawsuit before you have had sufficient time to treat and recover is often a bad idea. In many cases, you may undergo months of therapy, and end up needing surgery. In other cases, the therapy may almost completely bring you a full recovery. But it’s impossible to know which will be the case until you have undergone medical treatment (this is often called MMI, or maximum medical improvement).

April 3, 2015

The Law of Punitive Damages

by Gerson & Schwartz, P.A.

We often hear about punitive damages in movies or on TV. It seems easy to get them, if you believe Hollywood’s interpretation of punitive damages. But in Florida, punitive damages are not easy to get, and there is even a special statute that dictates when and how punitive damages can be sought.

What Are Punitive Damages

As the name implies, punitive damages are intended to punish, or at least, deter others from acting in a similar manner in the future. This is different from traditional damages, which seek to compensate the injured victim for loss.

March 18, 2015

Incident Reports Documenting Accidents Are Harder to Get Than You May Think

by Gerson & Schwartz, P.A.

It’s pretty basic that when you are litigating a case involving personal injuries, you need evidence to prove your case in court. In fact, much of what happens before trial involves disputes over what evidence can be obtained and which evidence the negligent defendant is not required to produce.

One category that doesn’t have to be produced is known as “work product.” This term has a specific legal definition, but in practical terms, anything deemed work product may be very difficult for you to obtain to prove your case.

What is Work Product?

March 5, 2015

Florida Supreme Court Gives New Life to Liability Releases

by Gerson & Schwartz, P.A.

The Florida Supreme Court, in an important decision, has changed the way that so-called exculpatory clauses are interpreted. Its decision unfortunately broadens the effectiveness of these agreements, and thus, makes it harder for those catastrophically injured by the negligence of a business, or while on a business premises, to recover damages.

Exculpatory clauses are the contracts that you often sign that purport to waive any liability for the business for any injury that you sustain. They are often used on cruises, in gyms, in kids play areas, and in extreme sports. Simply put, you are agreeing not to sue the business if you’re injured when you’re there, or taking part in an activity.

Mother Injured on Vacation Starts Dispute Over Liability Release

February 26, 2015

General Motors Recent Auto Recalls May Give Rise to Increase in Product Liability Claims

by Gerson & Schwartz, P.A.

It seems that more cars including additional GM products are facing recalls based on design and manufacturing defects. Some of the problems are those that could potentially cause serious or catastrophic injury, reminding us that often our vehicles may not be as safe as we believe they are, and that it’s important to pay attention to the recall notices in the news. The Miami personal injury lawyers at Gerson & Schwartz, P.A. are keeping a close eye in the wake of the latest General Motors recall fiasco.

Airbags a Big Recall Target

The rumor is true, that often an airbag can cause as much injury as a crash itself. Still, airbags often save lives, and are an important protective tool for drivers.

February 20, 2015

Insurance Policy Exclusions May Interfere With A Personal Injury Claim and Why You should Read the Lanugage in Your Insurance Policy.

by Gerson & Schwartz, P.A.

If you are injured in an accident, and the negligent party was drunk and under the influence of alcohol, it may appear that your case is a slam dunk. Generally speaking from a liability standpoint this may be true. However, collecting from the insurance company for the full amount of your damages may not be as simple as you think. Some insurance policies have exclusions for certain acts. This means the insurance company may not be required to cover an insured’s negligence such as an intentional act, or if there is a claim that arises based on conduct that is excluded or not covered under the insurance plan language. This can include a claim that arises out of a fight in a night club, use of alcohol, or even for punitive damages such as an insured in a drunk driving accident. These exclusions are common in premises liability cases, such as bars, nightclubs, and other commercial property insurance policies. For these reasons, it is always a good idea to ask for a free consultation with a personal injury lawyer in Miami to discuss if any of these potential issues may apply to your case.

Recent Case Enforces Alcohol Exclusion

This does not mean that the tort feasor is entirely off the hook. Injury victims can always pursue legal action regardless of insurance that is available. It just means that the an action to collect some or all of a judgment for claims that are not covered under insurance may have to come directly from the at fault party, as opposed to the insurance company. However, the reality of collecting against an uninsured or under insured defendant directly just may not make sense.

February 18, 2015

What To Expect In, and Why You Shouldn’t Fear, a Deposition

by Gerson & Schwartz, P.A.

If you file a lawsuit to recover damages for injuries you sustain, in most cases, you can expect to be called to sit for deposition. Movies and TV have ingrained in us that depositions are scary things. But if you’re properly prepared, and understand how the process works, depositions are nothing to be nervous or concerned about.

What to Expect

As an initial warning, this is general advice only. Every case is different, and a good attorney will prepare you for deposition questions that may be specific to your case and your history.

February 13, 2015

Medical Causation and How It Can Be the Difference Between Winning and Losing a Case

by Gerson & Schwartz, P.A.

In a personal injury action, under Florida law a Plaintiff must show the elements of 1.) Duty 2.) Breach 3.) Causation, and 4.) Damages. When we are injured by the negligence of another, especially when we are injured on the premises or property of a business, it’s common to think that as long as you can prove the other person or business was at fault or negligent, the case is won. But there is still the question of injury or medical causation. If someone’s negligence didn’t actually cause or contribute substantially to the injuries for which you are claiming damages, the law provides that a jury must enter a verdict for the defendant on that issue. This a common defense strategy where there injuries that are considered to be degenerative, or “pre existing” in nature . Florida law does provide for aggravation or acceleration of a per-existing injury. However, this still requires proof of that the prior injury was accelerated but for the harm that was caused. Many defense lawyers and insurance companies often defend cases on these types of arguments. Our Miami injury lawyers are well versed in dealing with and many of other types of affirmative defenses and how to deal with them in the court room.

No Causation in Wal-Mart Negligence Trial

The case involved a woman who said she was injured when an 8.4 oz “squishy” (in the words of the court) pumpkin fell on her at Wal-Mart. Wal-Mart admitted they were negligent, but claimed that there’s no way that an object of that size could have ever caused the victim the injuries she said she sustained. Also referred to medical causation, the lawyers argued that even though they were at fault, the element of causation was missing and therefore argued that the jury must find in their favor. The defense hired a medical expert to testify against the victim.

February 12, 2015

Estate of Deceased Injury Victim Can Sue Negligent Party’s Insurer

by Gerson & Schwartz, P.A.

The sad fact is that in many catastrophic accidents in death results. When there is a death, it is left to the estate of the deceased to pursue any claims against third parties. But there are still certain areas where the right of an estate to bring a claim is called into question.

A new case, however, has broadened the areas where the estate of a deceased person can bring a lawsuit.

Accident on the Job Brings Lawsuit

January 29, 2015

Catastrophic DUI Accidents – Is the Bar or Restaurant Liable for Injuries Caused by Its Patrons?

by Gerson & Schwartz, P.A.

This tragic injury story happens all too often in South Florida: Someone is served alcohol, gets drunk, drives, and kills or injures someone on the road. We all know this kind of behavior is illegal. But often the question becomes what liability the bar has for serving the alcohol when the patron drives away and injures someone. (Note that the laws apply to any establishment serving alcoholic drinks, but for ease, we’ll just call them collectively, “bars.”)

When Bars Serve Intoxicated Patrons

A patron has consumed loads of alcohol, and maybe even displays signs of intoxication. Yet, the bar continues to serve alcohol, knowing that someone has had too much, and will likely be getting into a car shortly. Is the bar liable if that person injuries someone?