Fort Lauderdale Car Accident Attorney Blog
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Car accident victims – those who are able and well enough to engage in social media after the accident – must be cautious about the things they post after the accident. In fact, it’s not a bad idea to go over some ground rules with your attorney, once you’ve secured representation. computer1

At first, many clients are puzzled by this. After all, why would it matter? The facts of the case won’t be altered by a few posted photographs or smiley faces, right?

Actually, that’s not entirely accurate. Of course, what happened at the crash site won’t change. But what’s really at issue is proof of the injuries suffered, which can directly affect how much compensation you receive in the event you win your case.

The most obvious example is someone who claims to have suffered diminished use of an arm, only to post photos of themselves kayaking or bowling. That damages one’s credibility and also suggests their injuries aren’t nearly as severe as what they have indicated in their original complaint.

But beyond that, and what was primarily the topic of exploration by a recent Slate.com article by Reporter Amanda Hess, is that such postings can directly impact compensation by diminishing the perceived level of mental anguish and pain and suffering.

One of the cases cited as a personal injury lawsuit was that of Romano v. Steelcase, which involves a woman in New York who allegedly suffered serious injury to her back when a purportedly defective work chair collapsed while she was sitting in it. In the product liability lawsuit she filed soon after, she alleged the injury left her largely confined to her home, isolated from friends. Seeking to dispute these assertions, defendants dug around on social media. They found a few photos of her outside her home. They also noted several of her recent posts were marked with “smiley-face” emoticons. They noted the number of friends she had on social media. Based on this, they successfully made a request for access to more of her profile, which had been set to private.

And this is something else too many clients fail to consider: Your private page is not private, no matter what your settings. One must consider that anything posted on these pages can potentially be dragged out to be used later in court. In some cases, even deleted posts or images can come back to haunt.

That’s why these cases require strong representation. The fact is, most people tend to project a sunnier disposition on social media sites than may actually exist. That’s a normal extension of the fact that humans tend to “put on a happy face” in public. It doesn’t necessarily mean they aren’t truly suffering or unhappy.

A 2012 paper published in the Vanderbilt Journal of Entertainment & Technology Law noted people are more likely to selectively screen photographs on social media in a way that allows them to seem socially desirable. They are less likely to capture moments on camera that show loneliness, embarrassment and sadness in the first place. But even when they do, they are less likely to post it.

So the value of the information gleaned from social media can be called into question. The problem is, jurors tend to give it a lot of weight because the direct source is the plaintiff. And it’s not that these projections are false, but rather they don’t show the whole picture.

Having an experienced lawyer by your side not only to guide you through these thorny issues pre-trial, but also to make these points to a judge and jury in a courtroom puts you at a key advantage.

Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights.

Additional Resources:

Evidence of Life on Facebook, April 29, 2015, By Amanda Hess, Slate.com

More Blog Entries:

Jones v. Alayon – Challenging the Seat Belt Defense, April 25, 2015, Fort Lauderdale Car Accident Lawyer Blog

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A husband and wife out for a leisurely stroll in their neighborhood would never return home the same again. It was a summer day in Maryland in 2009. As they passed a residential driveway, a driver in his 20s backed out of the driveway without looking. crashedbumper

In so doing, the driver struck the couple. The wife screamed and, as she would later allege in her complaint, hit the vehicle with her hand to alert the driver and make it stop. She reportedly then made eye contact with the driver, who stopped momentarily and then nevertheless seeing what had happened, continued moving his car, backing over her husband in an attempt to flee the scene.

Both husband and wife sustained serious injuries, though the husband had the worst of it. His injuries included a traumatic brain injury and other severe head injuries, as well as injuries to his neck, body and limbs. He was transported to a local hospital and then, later to a rehabilitation center, where he died two years later.

The wife, meanwhile, sustained injuries to her back, neck, arm and leg. She also suffered the emotional trauma of watching her husband be run over by a vehicle.

The subject of a lawsuit recently before the Maryland Court of Appeals, Connor v. GEICO, deals with the amount of coverage the couple’s own insurance company should have to pay after they had reached the maximum limit of compensation with the driver’s insurance company.

Pedestrians who are struck by a vehicle often do not realize that their own insurance company is probably responsible to pay some of the damages, if the at-fault driver’s insurer does not. That’s because even though the pedestrian wasn’t driving at the time of the accident, it’s still considered an “auto accident” worthy of coverage. Typically, we’d be dealing with uninsured motorist coverage or underinsured motorist coverage in these instances.

This type of coverage, which comes standard in most auto insurance policies, allows for the policy holder and others covered under the policy to receive the difference between their damages and what the at-fault driver’s insurance company paid. So if the at-fault driver had no insurance, the injured pedestrian would receive the full UIM coverage amount (assuming his or her damages met that threshold or more). If an at-fault driver’s insurance company only paid $20,000, but damages were at $50,000, the insured should receive $30,000 from his or her own insurance company, assuming the policy allowed for at least $30,000 in coverage.

The Connor case dealt with whether the insureds should receive the total UIM policy amount of $300,000, even though the at-fault driver’s insurance company paid $100,000 to each individual.

In an auto accident lawsuit like this one, what is going to be key is the unambiguous language of the individual policy.

Here, plaintiffs argued that in addition to the $200,000 they had received total from the at-fault driver’s insurer, they should also receive $300,000 from their own insurer per the terms of the UIM policy.

The insurer instead paid them $100,000 – the remaining amount left on the UIM policy, minus the $200,000 already paid by the other insurance company. Plaintiffs sued to collect the remaining $200,000.

However, the trial court ruled and the appellate court recently affirmed, that the clear terms of the policy indicated the couple’s damages were capped at $300,000, and that because $200,000 had already been paid by the other insurer, that amount offset the total they could receive from their own insurer.

Not every case with similar circumstances is going to have this exact outcome. Again, it highly depends on the individual facts and the policy language in the insurance documents.

Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights.

Additional Resources:

Connor v. GEICO, April 17, 2015, Maryland Court of Appeals

More Blog Entries:

Jones v. Alayon – Challenging the Seat Belt Defense, April 25, 2015, West Palm Beach Car Accident Attorney Blog

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Dozens of auto insurers are facing a federal lawsuit brought in U.S. District Court for the Middle District of Florida in Orlando by hundreds of auto shops in 36 states alleging the insurance industry forces unfair, illegal and unsafe auto repairs for consumers in order to reduce expenses.mechanic1

Insurance industry representatives insist they are doing nothing wrong, and say they are simply trying to save on repair costs, which in turn keeps customers’ premiums at a reasonable level.

But according to the 92-page complaint, insurers insist that auto repair shops use replacement parts that are off-brand, after-market, used, recycled or, in some cases, even counterfeit, on any repairs made. Of course, this does keep costs down. The concern, however, is that those parts won’t provide the same degree of protection as manufacturer replacements. Beyond that, customers usually have no idea the parts used may be substandard.

It also means auto repair shops that refuse to use potentially dangerous auto parts or offer labor costs at under-market value are shut out from the coveted status as a “preferred” shop by many large insurers – which can mean a huge cut in revenue to many shops, especially smaller ones, plaintiffs allege. Essentially, the insurance companies have established a market that rewards auto repair centers willing to cut corners in order to boost profits – at the expense of consumer safety.

For example, some shops have been instructed to replace windshields with after-market glass that is far thinner than the original material and, in some cases, even in designed to go in that exact vehicle. That means in the event of a crash, there’s a greater chance the windshield is either going to pop out or the glass could shatter and the occupants would more likely be ejected.

This is not the first time these concerns have been raised.

Last year, the Louisiana Attorney General sued insurance giant State Farm, alleging that systematically insisting on used replacement parts meant many drivers were operating vehicles that weren’t safe for the road. That not only put those drivers and passengers at risk of serious injury or death, it also jeopardized the well-being of anyone else on the road with them. That lawsuit alleged that in some cases, the parts used were “nothing more than used junkyard parts.” Others were foreign knock-offs.

Earlier this year, the Mississippi Attorney General joined a Connecticut lawmaker who requested the U.S. Department of Justice investigate these allegations. That request noted customers likely have no idea that the repairs on their vehicles are anything less than high-quality – something they have a right to expect.

The auto shop plaintiffs say rather than risk customer safety, many will instead do the work at a quality level and take the hit on costs.

Aftermarket parts can cost between 25 to 50 percent less than original manufacturer parts, and this does save insurers about $1.5 billion a year. But if those savings result in additional costs when the parts fail to protect occupants in a wreck or, worse, perhaps even cause an auto accident, then the benefit is significantly diminished.

Many states have laws that prevent certain parts from being aftermarket or require customers be informed of that fact. Whether those laws are being followed is part of the subject of this litigation.

Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights.

Additional Resources:

Auto Insurance Giants Accused of Pushing Cheap Repairs, April 17, 2015, By Sarah Cooke, NerdWallet.com

More Blog Entries:

Automaker Blames Driver for Deadly Crash that Killed Actor, April 30, 2015, Fort Lauderdale Car Accident Lawyer Blog

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In car accidents, as in life, events often unfold as a result of a series of actions or inaction. What this means for accident lawyers is there is often more than one responsible party in these cases, and that’s why litigation stemming from a seemingly simple crash can end up being quite complex.porsche

Take for example the case of 40-year-old actor Paul Walker. The handsome, popular actor was tragically killed in a fiery crash in a suburb of Los Angeles in 2013 after a charity event. An investigation revealed the 2005 Porsche Careera GT driven by Walker’s friend, a professional race car driver, careened out of control before slamming into a grouping of trees and a utility pole. The sports car ignited and both men died.

Coincidentally, Walker was in the midst of his seventh installment of a successful movie series about illegal street racing of expensive sports cars.

Since then, the driver’s widow has filed a lawsuit against the auto manufacturer, who is based in Germany. Rodas v. Porsche Cars North America Inc. et al., alleges wrongful death, negligence, breach of implied warranty and strict products liability. She asserts her husband was an experienced driver and the reason the car crashed was due to mechanical failures. Specifically, she alleges there was a failure of a suspension component in the right rear wheel of the car, and further, the vehicle was not equipped with important safety features, such as a crash cage that would protect passengers from impact, and a fuel cell to prevent a fire.

Back in September, a federal judge indicated she was not specific enough in her claim that the car manufacturer made false statements regarding the vehicle’s safety. The judge dismissed most of her claims, but granted her leave to amend, which she did.

Now, the car manufacturer is arguing it wasn’t the vehicle that malfunctioned, but rather the driver who was operating the vehicle unsafely. It asserts the car wasn’t defective and all injuries or damages were the fault of the operator. Further, the company went so far as to allege the vehicle was “abused and altered” after purchase, to a degree the company alleges it couldn’t have foreseen and in a way that could have factored into the traffic collision. The company does not specify in records what kind of alterations may have been made or by whom.

Law enforcement investigators determined the crash was the result of the operator driving too fast. It was estimated he was operating the vehicle at 55 mph while rounding a curve.

However, it’s important to note that investigation was aided by engineers from the auto manufacturer. It’s not outside the realm of possibility to think that investigation might have been influenced by the defense in this case, or at the very least, that an independent investigation is warranted.

And even if the operator was traveling too fast for the road conditions, that might warrant a finding of comparative fault, but it would not necessarily block plaintiff from compensation, though it could reduce the total amount.

It does not appear at this juncture a representative of Walker’s estate has filed a lawsuit for wrongful death on behalf of his 15-year-old daughter, though certainly it seems a strong case could be made, potentially against at least two or possibly more defendants.

Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights.

Additional Resources:

Porsche blames driver in crash that killed Paul Walker, April 1, 2015, by Ben Klayman, Reuters

More Blog Entries:

Golnick v. Callender – Proximate Cause of Injury Crucial in Crash Cases, April 5, 2015, Hollywood Car Accident Lawyer Blog

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Florida law – specifically F.S. 316.614 – requires all front seat passengers and anyone under the age of 18 to be restrained by the proper safety belt system, whether that’s a seat belt or a car seat or a booster seat. OLYMPUS DIGITAL CAMERA

There are a few exceptions (school buses, farming vehicles, large trucks, motorcycles, etc.), but generally, most vehicles are included in this requirement.

In addition to the fact that wearing one’s seat belt is a legal requirement and is known to reduce injuries, there is another key incentive: Failure to do so in Florida could result in a finding of comparative negligence, which could reduce the overall damages to which you may be entitled in a traffic accident lawsuit. This is true even when the injured person had no other responsibility in causing the crash.

Our Palm Beach auto collision lawyers want to be very clear here: Failure by victim to wear a seat belt does not mean the courthouse doors are closed. Because Florida follows a pure comparative fault model when it comes to plaintiff liability, even plaintiffs who are 99 percent liable for their own injuries can still collect damages on that 1 percent of fault held by someone else.

So failure to wear a seat belt, particularly when plaintiff was not to blame for the crash, will not bar the claim.

The recent case of Jones v. Alayon, reviewed by Florida’s 4th DCA, is a good example.

The lawsuit was filed by the daughter of a man killed after his vehicle was struck by an off-duty police officer who fled the scene. The impact of the crash sent the decedent into a guardrail, overturned the vehicle and ejected him. He was subsequently struck by several other vehicles. Authorities said he died either upon impact with the pavement or from being struck by other cars. He was not wearing a seat belt.

But his daughter argued he always did. The only reason he wasn’t this time, she said, was because several coins had gotten stuck in the seat belt, the result of her father digging around in his pocket for change at the tolls. She had unsuccessfully tried to help him get the coins out with a tweezer two weeks earlier. They concluded a new seat belt was necessary, but he hadn’t had time to have it replaced when the accident occurred.

Defendant, who was ultimately arrested and criminally charged, offered an affirmative offense in the civil case, conceding his negligence caused the crash. However, he argued, he was not responsible for the extent of decedent’s injuries because they would not have been so severe had he been buckled up.

Plaintiff countered the seat belt defense shouldn’t be allowed in this case because the seat belt in question wasn’t operable. Defense countered by arguing decedent was negligent in causing the defect and in failing to fix it.

Jurors agreed with the defense, and assigned just 30 percent of the blame to defendant and 70 percent of the blame to decedent. Of a nearly $330,000 verdict, plaintiffs would only receive about $94,000.

Plaintiffs appealed, but the 4th DCA found no abuse of trial court discretion.

The seat belt defense isn’t always raised in cases where injured or decedents were not wearing a seat belt, but injury lawyers must be prepared for the possibility. Our attorneys understand that every case is different, and we are prepared to meet each unique challenge with compassion and a desire for justice.

Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights.

Additional Resources:

Jones v. Alayon, April 8, 2015, Florida Fourth District Court of Appeal

More Blog Entries:

Fatal Florida Van Crash Investigated by Federal Authorities, April 4, 2015, Palm Beach Accident Lawyer Blog

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Most motorcycle accident lawsuits hinge on the basic duty of care owed by one motorist to another (or the driver to the passenger) to operate the vehicle in a reasonably safe manner.dirtroad

The recent case of Towe v. Sacagawea, Inc. is different in that it involves premises liability. The reason the standard is different is because of where it occurred – on a private access road, rather than a public thoroughfare.

The lawsuit, recently considered by the Oregon Supreme Court, was the result of a motorcycle accident in which the rider, on site to examine a for-sale property as advertised from the public road, crashed after being tripped by a cable that had been laid about a foot off the ground by one of the property owners.

According to court records, the cable was intended to keep vehicles from traveling too far down the road because there was a quarry at the end of it. Plaintiff actually knew about the quarry – and at one point the cable itself – because he had worked at the quarry several months earlier. However, he noted the cable was not always up, it had been some time since he’d been there, so he’d forgotten, and there was nothing that made the cable especially visible.

As the court would later point out, the cable itself and the posts that held it up on either side, were rusted. There was an orange cone that was supposed to alert to it, but the cone was covered in black dirt. There was also a sign nearby warning against entry onto the access road (which split off from another), which was owned by a separate entity. However, the sign had fallen face down and was rusted.

When the motorcyclist approached, he said he did not see the cable. He conceded he did look back briefly at his passenger, but just for a fraction of a second before turning back to face forward. He wasn’t traveling fast, but contact with the cable on his motorcycle caused both him and his passenger to be ejected and suffer serious injuries.

Plaintiff filed lawsuit against the real estate company that advertised the property and the property owners that had erected the cable. He alleged property owners failed to keep the property in a a reasonably safe condition, and the real estate company for advertising and welcoming visitors onto a property that was not safe.

Trial court ruled that because plaintiff looked away, he was 100 percent responsible for his own injuries, and no reasonable juror could reach any other conclusion. Essentially, the court ruled it didn’t matter the property was unsafe or that there was no warning regarding safety because no warning signs would assist a motorist who isn’t looking at the road.

State supreme court partially reversed on appeal. While upholding dismissal of the claim against the real estate company, the state supreme court indicated trial court gave too much weight to that backward glance, which was reportedly brief. It may have been a factor in the accident, but it would not necessarily absolve the property owner of the duty to keep the property in a reasonably safe condition for legal invitees.

Therefore, plaintiff is allowed to continue with his claim against the property owners.

Anytime Fort Lauderdale motorcycle accidents occur in a place other than a public road – such as a store parking lot or private access road – there may be additional legal hurdles that will be important for plaintiffs to overcome. Our experienced lawyers can help overcome those obstacles.

Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights.

Additional Resources:

Towe v. Sacagawea, Inc. , March 26, 2015, Oregon Supreme Court

More Blog Entries:

Recent Florida Motorcycle Bicycle Deaths Underscore Bigger Problem, March 20, 2015, Fort Lauderdale Motorcycle Accident Lawyer Blog

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An overloaded 15-passenger van careened off a rural Florida highway and into a water-filled ditch, killing eight passengers and wounding 10 others. van1

The group was on an unlit stretch of road in Glades County shortly after midnight, on their way back to Fort Pierce following a church revival on the coast of Southwest Florida. Passengers ranged in age from 4 to 89. The 4-year-old, who survived, was listed in stable condition.

The National Safety Transportation Board has launched an investigation into the accident, something that literally only happens in 1 out of every 1 million accidents, according to news reports. Factoring into that decision was the high number of deaths and the fact that this was a 15-passenger van, a vehicle with a notoriously spotty safety history.

In fact, federal data examined by news reporters indicates Florida was No. 1 for 15-passenger van accidents from 2009 through 2013. There have been 45 fatal crashes in Florida involving these vehicles in that short time frame.

Part of the reason for this is likely because Florida is a destination. From the beaches to the theme parks to the swamp tours, people want to come here, and they want to come here year-round. These large vans are popular among church groups, youth sports teams, senior groups and other organizations.

The problem is they are very dangerous. The National Highway Traffic Safety Administration has issued numerous warnings to the public regarding the risk of a rollover in these vehicles, particularly when they are overloaded with too many passengers. In fact, the risk of a rollover crash triples when the number of passengers inside one of these vehicles is increased from five to 10. And that’s not even considered overloaded or even at capacity.

In essence, we have a product that is advertised for use by 15 people when it shown by government regulators not to even be safe for 10.

The vehicle in this instance did not rollover. That doesn’t mean there were not issues with defectiveness. We don’t know why the driver veered off the road. It could have been fatigue. It could have been a medical issue. What we do know is that the tires on these vehicles also have been known to be the source of many problems.

Specifically, under-inflated tires are frequently cited as a causal factor in 15-passenger van accidents. So too is driver inexperience. These vehicles handle much differently than smaller, non-commercial vehicles, but they don’t require any special licensing or training to operate.

The vans come equipped with four rows of seating, and getting people to buckle up has proven problematic. One news outlet interviewed the founder of Safety Research & Strategies Inc., a national research firm focusing on consumer injuries, who stated seat belts in these vehicles often do not work properly. The are typically difficult to use and the geometry of their placement is poor, so even when people are wearing them, they get ejected.

That explains why investigators can’t definitively say yet how many people were wearing seat belts. They do know the 4-year-old was not in a child car seat, as required by Florida law.

Investigators say they will be closely analyzing the vehicle for possible defects, as well as carefully determining the degree to which driver error played a role in the crash.

This model of vehicle, which is from 2000, is no longer produced by the manufacturer. It now produces a full-size van that is equipped with a lower center of gravity.

In terms of liability, injury lawyers would likely examine the culpability of the manufacturer, the driver, the trip organizers and possibly even the county or state traffic engineers, as the fact that the road was unlit has been raised as a possible issue of concern leading to prior accidents.

Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights.

Additional Resources:

Deadly van crash: passenger vans raise wide array of safety concerns, feds say, March 31, 2015, By Katie LaGrone, WPTV Channel 5

More Blog Entries:

Hilyer v. Fortier – $550K Teen Car Accident Injury Judgment Reversed, March 10, 2015, Broward Accident Lawyer Blog

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Prevailing in an auto accident case means you have to prove more than negligence of the at-fault driver. It means you have to show the injuries you sustained – those for which you are seeking compensation – were the proximate result of that crash. ambulance1

This can be especially challenging for individuals who suffered prior health problems or injuries that occurred subsequent to the accident.

Such claims will require extensive medical records, expert witness testimony and the aid of an experienced car accident lawyer.

In the recent case of Golnick v. Callender, defendant actually conceded to his own negligence in causing the crash. What was at issue, however, was whether that crash was the cause of plaintiff’s stated injuries.

Plaintiff, in his 70s, suffered some health issues prior to the crash, and also was injured in a second car accident that occurred after the one in question before the Nebraska Supreme Court.

According to court records, plaintiff filed lawsuit alleging he and defendant were traveling in opposite directions on the same road when defendant, who was texting at the time, veered into his lane of travel and struck plaintiff’s car.

In defendant’s first answer to the claim, he denied the crash occurred as plaintiff alleged. Defendant later amended his answer to say he admitted he was negligent and that this negligence was the proximate cause of the accident. He still denied he was texting at the time (he asserted he swerved to avoid suddenly stopped traffic in front of him), but otherwise conceded he was responsible for the crash. However, what he denied the extent and nature of plaintiff’s injuries.

Plaintiff objected to this amendment, as it pertained to defendant’s denial of being on his phone at the time of the crash. Trial court overruled the objection, saying the issue was whether plaintiff had proper control over his car – which he admitted he did not – not whether he was on his phone at the time. Meanwhile, defendant sought to admit into evidence pleadings plaintiff had made in an unrelated case, from an accident that happened two years after the case at hand. In both cases, he alleged the crash resulted in permanent injuries to his head, neck, shoulders and back.

The court’s ruling on this is not part of the state supreme court record, but we do know defense was allowed to mention plaintiff’s pre-existing back and eye problems. Plaintiff’s lawyer asserted these problems were not the same as the ones he began to suffer within a month of the first crash. Plaintiff’s injuries from the second crash were mentioned, but plaintiff was careful to state that crash only worsened his problems from the first crash.

Jurors ultimately entered a judgment in favor of defendant, which was affirmed by both the appeals court and the state supreme court.

Plaintiff argued to the state high court that trial court erred in not allowing him to argue as to the driver-cell phone issue. However, the court ruled the court did not act improperly. He also argued rejection of his proposed jury instructions was erroneous, but the state high court disagreed.

Ultimately, the problem here was a lack of proof regarding causation of injuries, complicated by pre-existing conditions and subsequent injuries.

This is certainly not to say plaintiffs in this situation should not pursue their claim. They can, in fact, be successful. But they likely will not get there without the help of an experienced auto accident attorney.

Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights.

Additional Resources:

Golnick v. Callender, March 20, 2015, Nebraska Supreme Court

More Blog Entries:

Townsend v. Pierre – Liability of Property Owners for Obstructive Landscaping, March 31, 2015, Hollywood Car Accident Lawyer Blog

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In order to operate their motor vehicles safely, drivers need to be able to see what’s in front of them – and coming at them from the side. OLYMPUS DIGITAL CAMERA

Part of this is the job of traffic engineers and city planners. However, it’s also up to property owners, both commercial and private.

When overgrown shrubs, tree limbs or other landscaping features obstruct the view of motorists and result in a crash, the property owner may be held liable for damages. However, it must be proven that the landscaping feature was a known (or knowable) hazard as well as a proximate cause of the crash.

The legal standard often applied to determine whether property owners owed a duty of care to passing motorists is that of the foreseeable zone of risk, as established in McCain v. Florida Power Corp. (Florida Supreme Court, 1992). As the Florida 5th DCA ruled in the 2004 case of Davis v. Dollar Rent A Car Systems Inc., et al., the traditional view of the courts on this issue has been that a property owner owed no duty of care to drivers whose vision was obscured by natural conditions on the owner’s property adjacent to the highway, though the property owner could be liable for artificial conditions (i.e., foliage planted by land owner). However, the court noted the Florida Supreme Court had rejected this differentiation between “natural” and “artificial” and recognized simply that the issue should be decided by the foreseeable zone of risk. That is, the court has to consider whether defendant’s conduct foreseeably created a broader zone of risk, which posed a general threat of harm to others.

The Davis case involved a rental car patron who was making a left turn onto the road where the business was located when she was broadsided by a dump truck. Driver’s estate alleged foliage on private property adjacent to that intersection obstructed her view of oncoming traffic, and the appeals court ruled she had the right to have that claim heard.

A more recent case out of New Jersey deals with a similar situation. In Townsend v. Pierre, the New Jersey Supreme Court was tasked with deciding whether a commercial property owner could be held liable for failure to maintain shrubbery, allegedly contributing to a driver’s inability to see oncoming traffic and resulting in a fatal car accident.

The trial court had dismissed plaintiff’s expert witness’s testimony because it was not supported by facts on record. At-fault driver and her passenger had said the shrubs on private property initially blocked her view, but she inched up four times until her view was unobstructed before proceeding. Plaintiff was suing private property owner as well as driver, and expert witness opined at-fault driver was mistaken about her ability to see the road.

Appellate court reversed and planned to allow plaintiff expert witness testimony, but the state supreme court reversed. The court ruled that although a property owner could be held liable for failing to maintain landscaping on their property so it didn’t obstruct the view of drivers, in this case, that argument wasn’t supported by the underlying facts.

Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights.

Additional Resources:

Townsend v. Pierre, March 12, 2015, New Jersey Supreme Court

More Blog Entries:

Toddler Killed, 11 Injured in Florida DUI Crash, March 5, 2015, Fort Lauderdale Car Accident Lawyer Blog

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When it comes to auto insurance policies, too many Florida motorists purchase only the bare minimum required, so as to keep their monthly premiums low. A quarter of Florida drivers don’t have any insurance at all. bicycle6

The trouble with this is two-fold. First, if you are involved in a crash with someone who is uninsured or underinsured, you will not be able to collect from them or the insurer the amount necessary to compensate you for your losses. And if you also have limited insurance – or no UM/UIM coverage – it may be extremely difficult to collect damages.

The good news is that while drivers aren’t required to carry UM/UIM coverage, insurance companies have to get a written waiver from drivers in order to drop it from the policy. Most drivers don’t do this, and that means most have UM/UIM coverage.

This coverage can be used in the event you are struck by a hit-and-run driver who is never identified or by a driver who has no insurance or not nearly enough insurance. It can also be used in the event you are struck by a car while walking or riding a bicycle.

If the UM/UIM coverage is stacked, Palm Beach car accident victims can receive a higher payment than they would otherwise because the policy will allow for broader, higher coverage in many cases. However, insureds need to read their policies carefully because there could be language in it that bars stacked coverage – and Florida courts have upheld these policies so long as the language is clear.

In the recent case of Midwestern Indem. Co. v. Brooks, a bicyclist struck by a vehicle in Missouri appealed trial court’s decision to dismiss her request to stack her UIM insurance coverage. However, the U.S. Court of Appeals for the Eighth Circuit ruled the policy language was clear, and thus the policy as written was valid.

According to court records, plaintiff was riding her bicycle on a public road in September 2011 when she was struck by a negligent motor vehicle driver. (He later died of unrelated causes.)

Cyclist and her husband filed a lawsuit against driver’s estate, and soon settled for his insurance policy limit of $50,000. They retained the right to seek UIM coverage from her own auto insurance company. Even though she was on a bicycle, UM/UIM coverage can still be secured. Her single UIM policy covered multiple vehicles, and indicated the UIM bodily injury limits were $100,000 per person and $300,000 per accident. The couple had five vehicles insured – for which they paid five UIM premiums. They sought to recover $500,000 from their insurance company through stacking.

However, insurer countered by paying plaintiff $100,000, indicating that was the per-person limit for a single application of the policy’s UIM coverage.

The insurer then sought a judicial declaration that the UIM coverage limits for multiple vehicles don’t stack to multiply the per-person limit.

The court granted summary judgment in the insurer’s favor, indicating the plain language of the policy made it “quite clear” that intra-policy stacking is barred, and the per-person maximum for any single accident is $100,000.

Had that provision not been included – or not been clear – it’s possible plaintiff could have received as much as $500,000 from her insurer under the circumstances.

Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights.

Additional Resources:

Midwestern Indem. Co. v. Brooks, March 2, 2015, U.S. Court of Appeals for the Eighth Circuit

More Blog Entries:

Report: Older Drivers Are Among the Safest, Although With Higher Injury Risk, Feb. 26, 2015, Fort Lauderdale Car Accident Lawyer Blog

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