Fort Lauderdale Car Accident Attorney Blog
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A luxury car test drive went horribly wrong for a salesman along for the ride with the son of a prospective buyer. sportscar

Although there are conflicting accounts presented in Gonsalves v. Li, what is undisputed is that the son of a man interested in buying a high-end, high-powered BMW crashed the vehicle while taking it on a test drive.

The salesman, who was in the passenger seat, asserted significant back injuries were proximately caused by the crash.

The wreck reportedly occurred after the salesman, against his better judgment, allowed both the prospective buyer of the car as well as his son to test-drive the vehicle without a sales price agreement and confirmation of the customer’s ability to pay, as was typical for this particular kind of vehicle, which most owners want to purchase with zero mileage.

Salesman said he worried he had insulted the customer by requesting this information after customer insisted he had the money to pay, was very interested in buying the car – for his son’s use – and insisted his son had a clean driving record (a fact later disproven).

After the son got behind the wheel, salesman said he drove recklessly at several points during the test drive, at one point reaching speeds of up to 120 miles-per-hour while weaving dangerously through traffic.

The son exited the highway to return to dealership at salesman’s insistence, but then said he wanted to try one more thing and attempted to re-enter the highway. However, while on the ramp, he quickly accelerated and pressed the “M” button, causing him to lose control of the vehicle and crash the luxury car.

There are disputes about how fast the driver was traveling at that point.

Salesman later filed a car accident lawsuit against the prospective buyer and his son, though prospective buyer was later dropped as defendant and the case proceeded solely against the son.

Plaintiff requested $2 million in damages for medical expenses and pain and suffering. Defendant argued he had not acted negligently and plaintiff’s damages were significantly overstated.

Jury found defendant negligent, and awarded plaintiff $1.2 million in compensation for damages.

On appeal, defendant argued trial court erred in admitting certain evidence and in allowing plaintiff to examine certain subjects. Specifically, defendant objected to the court allowing his refusal to answer certain potentially incriminating statements as evidence against him. Appellate court agreed this was error. Additionally, appellate court found consideration of defendant’s prior speeding tickets was improper. The court also found plaintiff’s counsel committed misconduct in at least two instances: In bringing up information about a former client/paralyzed child and secondly by talking about plaintiff’s workers’ compensation coverage.

On the latter point, frequent references were reportedly made regarding plaintiff’s receipt of workers’ compensation. Appellate court stated the issue of whether there is secondary insurance to collect and the amount of that insurance is “none of their business, basically.”

The court ruled that collectively, these errors warranted a remand for a new trial, as they had unduly prejudiced defendant.

This does not mean defense has won, but plaintiff will have to press through another trial to secure recovery of damages.

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

Additional Resources:

Gonsalves v. Li, Jan. 13, 2015, California Court of Appeals, First Appellate District, Division Five

More Blog Entries:

December National Impaired Driving Prevention Month, Dec. 23, 2014, Hollywood Crash Lawyer Blog

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The Broward County Transit has been operating for years, deploying 300 buses to cover more than 400 square miles with connections to both Miami-Dade and Palm Beach counties, as well as the Tri-Rail. busdriver

This is a lot of area to cover daily, and for the most part, drivers do a good job of getting passengers safely to their destination.

However, sometimes accidents occur. In 2013, a 14-year-old boy trying to get to school was left permanently brain damaged when he was trying to board and the bus accelerated before the doors had completely closed and prior to all passengers taking their seats. While prosecutors did not find the action rose to the level of culpable negligence or recklessness (as required for a criminal prosecution), there was evidence to support findings of inattentiveness and carelessness – violations of the Bus Driver Administrative Code.

When injuries occur as a result of bus driver negligence, victims need to consult with an experienced accident lawyer in Fort Lauderdale to ensure their rights are protected.

Recently, the case of Robinson v. Wash. Metro. Area Trans. Auth. showed how simple injury on a bus or even caused by a bus driver may not be enough to secure compensation. (Every case is different, which is why an immediate consultation is recommended.)

In Robinson, before the U.S. Court of Appeals for the District of Columbia, a passenger on a metro transit bus was injured when the vehicle suddenly stopped while the rider was still standing. According to court records, rider boarded the bus and proceeded down the aisle, holding the seat-back handrails as she walked.

The driver closed the doors and continued forward before passenger had reached her seat. He soon approached a stop sign and “hit the brakes.” The deceleration of the large vehicle caused the rider, who was still standing, facing the rear of the bus, to fall in a twisting motion on her behind. In falling, she broke her left leg.

Rider later sued the metro transit authority, alleging the bus drivers’ negligent operation of the bus resulted in her injury.

She sought to prove negligence on two theories: Driver violated the authority’s standard operating procedures and secondly, the “jerk” occurred with such extraordinary force, negligence was inferred.

Driver admitted at trial he did not check his mirror prior to leaving the stop, though he assumed plaintiff was already seated.

A jury awarded plaintiff $405,000 in damages. However, trial court soon after granted a renewed motion for judgment as a matter of law in favor of defendant, holding plaintiff failed to adequately prove causation.

Specifically, plaintiff’s expert witness did not show the standard operating procedure cited was a reflection of national care standards, and there was no evidence causally of the driver’s failure to check the center mirror (the SOP violation) and plaintiff’s injury. Court also found plaintiff’s evidence insufficient to show the “jerk” in question was indeed extraordinary.

The appellate court affirmed. The appellate court did note an expert witness might not be needed to show a failure to check one’s mirrors could result in injury to a passenger, as this is within the realm of understanding of the average layperson. However, plaintiff failed to adequately preserve this argument because when trial court denied defendant’s first summary judgment motion, it indicated an expert witness was required to establish the national standard of care – and plaintiff did not object or argue against this point.

Because these cases can be more complex than they may initially appear, it’s important to contact an injury lawyer with experience.

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

Additional Resources:

Robinson v. Wash. Metro. Area Trans. Auth. , Dec. 19, 2014, U.S. Court of Appeals for the District of Columbia

More Blog Entries:

Montgomery v. Potter – Uninsured Driver Struck by Insured Motorist, Jan. 7, 2015, Fort Lauderdale Accident Lawyer Blog

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High-speed driving and even pursuits are an especially dangerous part of police work. This is why many states, including Florida, have laws barring officers from acting with reckless disregard for the safety of others – regardless of the circumstances (F.S. 316.072(5)(c)). policelight1

That said, establishing liability for injuries or death resulting from a police pursuit may prove challenging. It will depend on the circumstances. When innocent civilian drivers or pedestrians suffer personal injury or are killed as a result of a reckless or ill-advised high-speed pursuit, the chances of securing compensation are optimum.

However, if plaintiff or decedent was in any way involved in the pursuit, the case may prove more difficult.

In the recent case of Sellers v. Twp. of Abington, the issue was whether officers owed a duty of care to passengers inside a fleeing vehicle when officers may not be aware of either passengers’ existence or potential involvement in eluding.

The Pennsylvania Supreme Court ruled officers do not owe a duty of care to passengers of a fleeing vehicle in these circumstances.

According to court records, this case stemmed from a tragic drunk driving accident following a police pursuit. A man spend Christmas Even drinking with a group of friends before two asked if he could drive them home.

One passenger sat in front, another in back. None wore seat belts. Driver admitted he was drunk when he left the gathering, and even conceded it was not the first time he had driven friends home drunk.

Driver stated while he was speeding 15-mph over the limit, he noticed a police cruiser pass him in the other direction. The police vehicle made a U-turn, began following him and activated lights and sirens.

Instead of pulling over, the “scared” drunk driver fled. He “floored” the gas pedal, reaching speeds of over 100 mph.

They seemingly lost the cruiser and made it to the home of one of the passengers. However, as they began to say their good-byes, driver noticed police lights reflected in the windows of nearby homes. Before the passenger could get out, driver shut off his headlights and “floored it” out of the driveway down the road.

Both passengers urged the driver to slow down because there was an upcoming dip in the road. Driver did not slow down. He hit the dip, lost control of the vehicle, the vehicle went airborne and crashed into a cluster of trees and a truck. One of the passengers was ejected and later died from his injuries.

Decedent’s parents filed a wrongful death action against the township for negligence of officers and seeking punitive damages. They accused officers of negligently, recklessly and willfully initiating and failing to terminate a high-speed pursuit of a vehicle.

After the discovery phase, defendant township sought summary judgment, which trial court granted. Trial court reasoned the township was immune from such action per the principle of sovereign immunity. Additionally, the court ruled the responding officer acted reasonably throughout the incident.

An appellate court affirmed.

The state supreme court held that while police owe a duty of care to innocent third parties in such situations, this same duty of care does not extend to “unknown passengers” of a fleeing vehicle.

With no duty of care, negligence cannot be established and thus, plaintiff’s case was dismissed.

A dissenting opinion did reason summary judgment in this instance was inappropriate where there had been no factual finding as to the officer’s awareness of the passengers.

The bottom line is these cases may generally be weighed on a case-by-case basis.

Consult with an experienced injury lawyer before determining your course of action.

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

Additional Resources:

Sellers v. Twp. of Abington, Dec. 29, 2014, Pennsylvania Supreme Court

More Blog Entries:

Giles v. Eagle Farms, Inc. – Intoxication as Bar to Recovery in On-the-Job Crash, Dec. 15, 2014, Fort Lauderdale Car Accident Lawyer Blog

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Florida has one of the highest rates of drivers without auto insurance in the country – nearly one in four, according to the Insurance Information Institute. That doesn’t include the significant portion of drivers who are also woefully underinsured, meaning they don’t carry enough coverage to pay for damages in the event of a significant collision.airbag2

We often talk about this problem in terms of what it means when an insured driver is struck by an uninsured driver. In these cases, insured drivers must often rely on uninsured/underinsured motorist coverage from their own insurer.

However, when an uninsured driver is struck by an insured driver, the process is slightly less complicated, so long as the uninsured driver is not at-fault. He or she may receive a citation for driving without insurance. After all, it is against the law. But in these instances, the insured, at-fault driver’s coverage should kick in to pay for coverages of injury and property damage.

The major disadvantage would be if the at-fault driver in a Broward car accident didn’t have insurance either or didn’t have adequate insurance. In that case, the uninsured victim would not be able to seek uninsured motorist benefits. It would be possible to hold the at-fault driver personally liable, but the chances of collecting vary depending on the circumstances.

The issue is handled the same way in most other states. However in Oklahoma, prior to the recent state supreme court decision in Montgomery v. Potter, uninsured drivers were barred from recovering certain non-economic damages, such as pain and suffering. The Oklahoma Supreme Court has now declared this law unconstitutional.

According to court records, plaintiffs filed a negligence action against defendant following a crash in which plaintiff was rear-ended by defendant vehicle. Plaintiff and her 3-year-old son were injured as a result of the crash.

In her lawsuit, plaintiff sought damages for medical expenses, personal injury and pain and suffering.

However, at the time of the wreck, plaintiff was an uninsured driver. She reportedly allowed it to lapse just two months earlier. Just like in Florida, driving without insurance is against the law.

Unlike Florida, a state law specifically barred uninsured motorist from collecting certain kinds of non-economic damages – pain and suffering included. It’s called a “No Pay, No Play” law, which only allows collection of certain non-economic damages under special circumstances – none of which applied in this case. (Other states with similar laws include: Alaska, California, Iowa, Kansas, Louisiana, Michigan, New Jersey, North Dakota and Oregon.)

When the case went to trial, plaintiff argued the state law was in violation of the state constitution, and filed a motion for declaratory relief. Trial court ruled in plaintiff’s favor, finding the measure improper.

Defendant appealed, and the trial court certified its ruling for review by the Oklahoma Supreme Court, which accepted.

Ultimately, the court ruled the “No Pay, No Play” law was unconstitutional. Essentially, the legal foundation for the ruling was based on the fact a subset of negligence plaintiffs were set aside for different treatment. Here, it was on the basis of lack of insurance coverage. But this restricted damages for victim who would have otherwise been entitled to collect greater compensation.

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

Additional Resources:

Montgomery v. Potter, Dec. 16, 2014, Oklahoma Supreme Court

More Blog Entries:

December National Impaired Driving Month, Dec. 23, 2014, Broward County Accident Lawyer Blog

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She was 20-years-old the night she reportedly got drunk with work friends, Tweeted to her boyfriend she was “2 drunk 2 care” about an argument they were having and then got behind the wheel of a car. She drove wrong way down the Sawgrass Expressway in Coral Springs traveling nearly 100 mph. She crashed into another vehicle head-on, killing the two occupants – both 21-year-old women. drunkdriving

In a deposition for a civil lawsuit brought against her by the victim’s families, the women, also facing 30 years in prison for DUI manslaughter, said she would take her own life in a second if it meant bringing back the two who were lost. Not a day goes by she doesn’t think of it, she told attorneys, and “It will never go away.”

Those expressions of remorse come amid one of the most dangerous times of the year for drivers. December has one of the highest rates of drunk driving injuries and fatalities, according to Florida traffic officials. The National Highway Traffic Safety Administration reported between 830 and 1,000 people die every year in December as a result of drunk driving. That’s why this month is also recognized as National Impaired Driving Prevention Month.

Fort Lauderdale DUI injury lawyers understand the consequences of driving while drunk or high are not always clear in the moment. Drugs and alcohol inhibit one’s ability to clearly evaluate the danger. It’s our hope the regret expressed by defendants like the one-time “Pothead Princess” will be enlightening this holiday season.

The crash was predicated by a holiday party defendant attended with coworkers at a nearby bar. Although she was one year shy of legal drinking age, she reportedly consumed at least two large drinks that night. The bar staff never asked her for an ID. On social media, she was a self-proclaimed “Pothead Princess,” and had reportedly smoked marijuana at some point that evening as well. At the time of the horrific crash, authorities say her blood-alcohol level was nearly twice the legal limit of 0.08 percent.

She didn’t have a license, and was driving a vehicle her boyfriend loaned to her for reportedly the first time. She had promised to go to work and drive straight home. They fought because she instead chose to attend a party with co-workers after her shift, prompting an argument and her subsequent “2 drunk 2 care” Tweet.

In the civil lawsuit deposition, she promised it was never her intention to crash and kill someone. Of course, it almost never is, but as she would later concede, “No matter what I saw or how much I apologize, it will never change what happened.”

Families for the two women say they struggle to accept the apologies because in the end, nothing will bring their daughters back. What they are trying to do with their civil lawsuits is hold everyone accountable: The driver, the boyfriend who loaned her the car knowing she didn’t have a license, the supervisors who knew she was drinking underage and did not intervene and the bar whose staff served her without making sure she was of legal age. It may not bring their own daughters back, but they hope it will prompt other establishments/employers/vehicle owners/drivers to be more careful.

Mothers Against Drunk Driving recommends holiday revelers this year adhere to these safety tips:

  • Always plan ahead to ensure you have a safe drive home. If you’ve been drinking, call a taxi, a sober friend, a family member or use public transportation. Anything else is simply not worth the risk.
  • Do not let someone get behind the wheel if they are drunk. You could be saving a life.
  • Even if you are sober, recognize many others may not be. Drive with caution, wear your seat belt and don’t hesitate to call 911 to report suspected drunk drivers.

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

Additional Resources:

Video: Deadly “2 drunk 2 care” driver speaks out, Nov. 24, 2014, By CrimeSider Staff, CBS News

More Blog Entries:

Dion v. Y.S.G. Enterprises Inc. – Injured Drunk Drivers May Have Lawsuit Grounds, Dec. 3, 2014, Fort Lauderdale Accident Lawyer Blog

 

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A roaming black bear was reportedly the catalyst for a five-car crash resulting in the death of three good Samaritans and injuries to four others. Authorities report a group of duck hunters from Miami-Dade stopped to help a motorist whose vehicle was rendered disabled after a collision with a 430-pound black bear on Interstate 75 in Seminole.carcrash5

As they were pulled over, a passing sport utility vehicle sideswiped one of the pickup trucks and then rolled over several times, striking several of the helpers and other vehicle as well.

Those killed – ages 43, 44 and 46 – were pronounced dead at the scene. At least two others suffered injuries classified as critical.

Our Fort Lauderdale accident lawyers know that while accidents involving bears in South Florida have increased in recent years, they are still relatively rare, with the Florida Fish & Wildlife Conservation Commission reporting 232 bears killed statewide by vehicles in 2013, compared to 43 bear deaths in 1993.

What is not as rare is for people to be injured or killed while their vehicle is disabled at the side of the highway, or while assisting someone whose vehicle is disabled.

Typically, investigating authorities will fault the driver of the rear-ending vehicle, finding the car or truck was traveling too fast for conditions or followed too closely behind. This is often true even at night and when disabled vehicles don’t have their lights on – or when those involved are standing behind the lights, blocking them from oncoming traffic.

Cases like this underscore the importance of driving at reasonable speeds, maintaining a safe vehicle distance and paying attention to the road at all times. Each of these actions provides drivers with more reaction time when they encounter some unexpected roadway hazard – such as a disabled vehicle.

With travel industry experts anticipating a record year for roadway trips this December (gas prices are down and the economy is improving), it’s important that all motorists understand the risks involved in stopping to help a disabled vehicle. Unless you are certain you can do so safely, it’s better to call for authorities to assist the stranded motorist.

One should never assume drivers of other vehicles can see you – and this should be a top priority. That means making the vehicle as conspicuous and visible as possible. Flares or reflective triangles can boost visibility, as can emergency flashers or even an interior dome light.

Disabled vehicle drivers should also raise their hood and consider tying something white to the antennae or out the window to alert fellow motorists and safety officials they need help.

Those who stop to help should never try to walk across multiple lanes of high-speed highway traffic. When exiting vehicles, do so on the side away from traffic. If your car is broken down and you find yourself walking to a nearby gas station, if possible use guardrails as protection between yourself and traffic while you walk.

While motorists may not always be able to anticipate the occasional black bear encounter on the roadway, they can make sure their vehicle is in top shape, particularly when preparing for a road trip. Doing so will reduce the chances of your becoming stranded on the highway.

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

Additional Resources:

Victims of crash involving black bear identified, Dec. 8, 2014, Sun-Sentinel

More Blog Entries:

Allstate v. Manzo-Pianelli – Florida Umbrella Insurance Disputes, Dec. 9, 2014, Fort Lauderdale Car Accident Lawyer Blog

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Drunk drivers cause nearly one-third of all traffic fatalities nationally, or about 10,000 people each year. It’s surprising this figure isn’t higher when you consider research by the Centers for Disease Control and Prevention indicates there were 112 million trips made by drunk drivers in 2010 alone. drinkinggirl

We know persons injured by drunk drivers – or survivors of those killed – may seek compensation through the impaired driver’s insurance company or against the accused himself. In fact, personal injury judgments stemming from drunk driving cannot be discharged in bankruptcy, like many other kinds of debts. The law takes it pretty seriously.

But what if you are the drunk driver, and you were injured? In most cases, you may have a difficult time securing any significant recovery for damages in Florida unless you can prove your intoxication was not a major factor in the crash. For example: You were impaired, but the other driver ran a red light and caused the crash. Perhaps the other driver was impaired too.

Our Broward County accident lawyers know in these situations, comparative fault would come into play. That is, the court would consider to what extent your impairment contributed to the crash. When both drivers share part of the fault, neither is barred from recovery, but damages may be reduced by the percentage of fault. So in the aforementioned example, a jury may award the impaired driver $100,000, but find the impairment contributed 40 percent to the crash, meaning he or she would only be eligible to collect $60,000.

Still, it can be tough to prove intoxication didn’t play a factor in a crash. This was recently the issue central to Giles v. Eagle Farms, Inc. This was a workers’ compensation case, where the impaired driver in a single-vehicle crash sought compensation – including medical coverage – for injuries sustained in a work-related accident.

In Idaho, where this case was heard, the law holds workers injured on the job can’t recovery for those injuries if intoxication was a primary factor in causing the injury.

Here, a worker was returning from a job around 3:30 a.m. after being called out to repair a sprinkler system. With a blood-alcohol concentration of 0.11 percent, he drove his vehicle more than 120-mph in a 50 mph zone around a sharp curve while reported sending a text and not wearing a seat belt. He was ejected from the vehicle and sustained serious injuries.

This driver had a lot of risk factors happening here, and there was no question he was negligent. However, the issue of whether he could collect workers’ compensation damages hinged on whether his impairment was central to the crash.

He presented testimony from an expert witness who opined the speeding and texting – particularly the speed – where the more significant factors in the crash, compared to his impairment. However, an expert witness for defendant company asserted alcohol impairment would have slowed response time to such a degree it was a primary factor in the wreck.

Ultimately, the Idaho Supreme Court sided with the employer, finding alcohol was central to the crash and therefore, the driver’s injuries were not compensable.

Drunk drivers who are injured face an uphill battle when securing any form of compensation. Still, it’s worthwhile to consult with an experienced lawyer to explore all potential options.

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

Additional Resources:

Giles v. Eagle Farms, Inc. , Nov. 28, 2014, Idaho Supreme Court

More Blog Entries:

TEI v. Cruz – Florida Highway Guardrail Danger Highlighted, Dec. 6, 2014, Broward Car Accident Lawyer Blog

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Most people give little thought to the guardrails that line countless highways throughout Florida and across the U.S. The purpose of these devices is to deflect vehicle occupants from careening into opposite lanes of traffic, off dangerous hillsides or from overturning. They aren’t 100 percent effective and they won’t usually prevent crashes, but they are intended to minimize the overall impact.highway2

Unfortunately, several companies that make the rails have reportedly undertaken a cost-saving design measure that appears to have endangered public safety. Several different lawsuits against at least two major manufacturers of the devices allege designs were altered so that the edges are no longer cushioned or flat. This has reportedly resulted in the steel rails becoming “spear-like,” impaling vehicles rather than softening the blow, causing severe injuries and even deaths.

One of the largest manufacturers, Trinity Industries Inc., just lost a $175 million federal lawsuit alleging it changed the designs without the required approval from the U.S. Department of Transportation. Several more injury and wrongful death lawsuits against the company are pending, and 30 states have prohibited new installation of guardrails made by this company.

Our Fort Lauderdale injury lawyers know Florida is not among those 30 states. However, that does not mean we are without problems here on this issue. In fact, one pending lawsuit alleges a problem with guardrails on the Florida Turnpike, although those devices were ordered and owned by the Florida Department of Transportation and designed/built by one of Trinity’s competitors, Transportation Engineering Inc.

In TEI v. Cruz, the mother of a woman killed in a single-car crash on the Florida Turnpike asserts the guardrail caused her daughter’s death by impaling the vehicle after the speeding driver lost control and veered off the road.

Similar to the cases pending against Trinity, the Cruz lawsuit alleges those involved in the traffic engineering process sought to save money by cutting corners – literally. Rather than paying for the more expensive – and reportedly safer – cushioned guardrail ends, FDOT ordered the uncushioned guardrail end pieces. In so doing, the lawsuit alleges, FDOT breached its duty of care by failing to remedy or warn the public of a latent dangerous condition. Plus, plaintiffs assert, the agency failed to follow both national standards and its own for guardrails situated at emergency crossover sites.

What’s different about this case is the engineering and construction firm, both named as defendants, received FDOT approval for the modified end pieces before they were built. (The crux of the argument against Trinity was that it did not obtain the approval of federal traffic officials.)

For this reason, the appellate panel for the Fifth District Court of Appeal rejected the argument the engineer or construction firm could be held accountable.

The primary basis for this ruling was the 1959 Florida Supreme Court decision of Slavin v. Kay, in which justices ruled contractors couldn’t be liable for design defects that caused injury so long as the work was finished and the design defects were known or apparent to the owner at the time the work was accepted. Although Slavin didn’t initially allow for release of liability for engineers, subsequent case law established engineers should be included in this group.

The ruling does not mean plaintiff will be unable to collect or pursue damages. First of all, she did already collect the policy limit from the insurer of the at-fault driver. Beyond that, she can continue to pursue action against FDOT; just not the engineering or construction companies.

As these cases gain traction and continue to garner headlines, we suspect more such lawsuits will be filed in coming years.

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

Additional Resources:

TEI v. Cruz, Nov. 7, 2014, Florida’s Fifth District Court of Appeal

More Blog Entries:

Antico v. Sindt Trucking – Evidence of Distraction Sought in Florida Trucking Crash Case, Oct. 30, 2014, Fort Lauderdale Crash Lawyer Blog

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Dram shop laws in most states allow victims of certain drunk drivers to seek recompense from those who illegally supplied alcohol to minors or intoxicated patrons who go on to cause injury or death. coldbeerglassonwhite

However, there are sometimes allowances for the drunk driver (or surviving family) to also seek compensation for injury or wrongful death under these same statutes. The standard varies widely from state-to-state. Some states have expressly forbidden drunk drivers from tort claims relating to their own negligent acts. Others have expressly allowed it, indicating damages can be reduced by the apportionment of comparative fault.

Florida does not bar such claims, though success can be challenging.

Our Broward DUI injury lawyers know it’s important to carefully analyze the facts of each case before going forward.

South Carolina and New Jersey courts are among those that expressly allowed such action in recent years. In 2009, a 20-year-old woman was paralyzed while driving drunk after being served alcohol at a nearby bar, despite her being underage. The court allowed her to pursue damages under the state’s dram shop law. In 2011, the New Jersey Supreme Court ruled 5-2 the state’s dram shop law allows claims by an injured drunk driver. That ruling stemmed from a 2006 crash in which a motorcyclist with a blood alcohol 2.5 times the legal limit was severely injured after leaving a nearby restaurant. He filed a claim against the restaurant saying he should not have been served alcohol, as he was visibly intoxicated.

However, other states have taken an opposite position. Just recently in Georgia, for example, the Georgia Supreme Court ruled the widow of a drunk driver had no valid claim where the state dram shop law expressly bars claims by a consumer of alcohol against the provider. In Dion v. Y.S.G. Enterprises, a man was killed in an early morning, single-vehicle wreck in September 2011. At the time of the crash, his blood-alcohol content was 0.282 percent – well above the legally-recognized intoxication threshold of 0.08 percent.

In the eight hours prior to his death, he was at a local sports bar/restaurant, consuming alcohol. Shortly after he closed his tab, a restaurant worker asked for the keys to his car. The man refused.

After the crash, his wife filed a lawsuit against the restaurant, asserting the conduct of employees was the proximate cause of her husband’s death.

Defendant restaurant moved for dismissal for failure to state a claim, asserting the cause of action would fall under the state’s Dram Shop Act, which does not allow claims for injury by alcohol consumers against providers of alcohol. Trial court granted the motion, rejecting plaintiff’s argument the law was unconstitutional.

Plaintiff appealed, arguing she had a viable wrongful death case rooted in the general principles of tort law. However, the state supreme court ultimately found that because the general tort law cited by the plaintiff partially rested upon the Dram Shop Act, the claim was not viable. A wrongful death lawsuit is derivative of the decedent’s right of action. If the decedent could not have successfully brought forth a claim under state law, neither can a survivor on the same set of facts.

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

Additional Resources:

Dion v. Y.S.G. Enterprises, Nov. 17, 2014, Georgia Supreme Court

More Blog Entries:

Florida Wrong-Way Crash Victims Sue, Officials Take Prevention Action, Nov. 14, 2014, Broward Car Accident Lawyer Blog

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Umbrella insurance policies can provide great relief, both to policyholders and those injured as a result of negligence by policyholders. colorfulumbrella

While Florida law requires drivers to retain a minimal level of auto insurance, umbrella insurance policies aren’t mandated, but they can cover liability damages stemming from a crash. So if one’s auto insurance maximum isn’t enough to fully compensate injured parties for wreck-related costs, the next move would be to see if any other applicable insurance policies may be in place.

Because many people don’t carry umbrella insurance, injured parties usually go straight to their own carrier for uninsured or underinsured motorist coverage, which is supposed to cover the difference between the at-fault driver’s coverage and actual damages, up to the policy limit. But, when the negligent party does have an umbrella policy, your own carrier may require that you make a claim under that policy first, before pursuing UM coverage.

Our Hollywood accident lawyers understand this can create confusion and uncertainty for those grappling with long-term recovery and debilitating injuries. That’s why we work tirelessly to shield you from the stress as much as possible, while fighting tenaciously to ensure you receive the full compensation you deserve.

One recent example of an injured plaintiff seeking coverage under an umbrella policy carrier is Allstate v. Manzo-Pianelli, before Florida’s Fourth District Court of Appeal. Had the at-fault driver also been the named insured on the umbrella policy, this case would likely not have made it to the appellate level. However, the at-fault driver was a permissive user of the vehicle, while the policyholder was the owner of the vehicle.

The crash giving rise to the case occurred in 2007, when a driver of a vehicle owned by someone else was involved in a crash, resulting in serious injury to the driver of another vehicle. The vehicle itself was insured under the owner’s auto insurance policy for $100,000. The full policy amount was tendered, and allowed a partial release of liability against the vehicle owner.

However, the vehicle owner also had an umbrella insurance policy that provided $1 million in coverage. But the umbrella policy carrier denied coverage on the grounds the driver of the vehicle wasn’t covered.

Injured plaintiff then sought underinsured motorist benefits from her own carrier. But her carrier filed a third-party complaint against the umbrella policy carrier, asking the court to issue a determination as to priority of coverage.

Initially, the trial court refused motion for dismissal, finding incidents arising out of permissive use of a motor vehicle were covered under the policy. Instead, trial court issued a summary judgment in favor of plaintiff.

However, on appeal, the 4th DCA found genuine issues of fact were raised with regard to whether the policy provided coverage, specifically because the policy excluded coverage in cases where the insured would not be legally obligated to pay. Here, the permissive user was not a named insured, neither was she a resident relative. Beyond that, the named insured/vehicle owner could not be legally obligated to pay, according to the insurer, because he wasn’t listed a defendant in the case. Further, he couldn’t be added as a defendant because, by that point, the statute of limitations had run out on the claim.

The insurance company argued that because there was no chance the named insured could be held liable in the case, it was not obligated to pay the claim. The appellate panel decided the insurer had a point, reversed the earlier summary judgment favoring the plaintiff and remanding the case to the trial court for further consideration on this issue.

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

Additional Resources:

Allstate v. Manzo-Pianelli, Nov. 5, 2014, Florida’s Fourth District Court of Appeal

More Blog Entries:

Bolding v. Kindel Concrete – Proving Crash Injury Causation and Damages, Nov. 10, 2014, Hollywood Crash Lawyer Blog

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