In addition to statute of limitations restrictions, there are defenses that may be used to combat a wrongful death suit. The available defenses are limited to those that could have been made against the decedent had he lived and brought his or her own claim for personal injuries. The main defenses are causation, comparative negligence, and imputed comparative negligence. If either of these defenses is viable, it may bar a plaintiff from recovery or reduce the amount of damages awarded.
Causation
In order to hold a defendant responsible for wrongful death, you must prove that the defendant’s conduct was the cause of the decedent’s death. The defendant does not have to be the sole cause of death, but they must be implicated somehow. There has to be at least be a connection between the defendant’s conduct and the injury, such that the injury would not have occurred without the defendant’s actions.
Here is an example: If a person was killed on Super Fun Land’s amusement ride in part due to improper maintenance of a seat belt, but also because another rider pushed the decedent off the seat, Super Fun Land may still be found liable for damages.
Often, the period when the fault occurred and when death results can take seconds, as in the case of a car accident where a victim dies at the scene but it can also be a matter of months, as where a doctor prescribes the wrong medication that over time results in the patient’s death. The period between the fault and the injury, however, is not a controlling factor necessary to show proximate cause. For example, if a decedent died due to injuries he received in an accident three months ago, the negligent wrongdoer is still liable.
The continuous causal connection between the fault and the injury is the important element necessary to prove causation in a wrongful death suit. The continuous causal connection is a direct line that links the fault to the injury. The line represents the sequence of events that occur from the point of fault to the point of injury. In a car accident case, the defendant’s car crashed into the victim’s car and the victim died. In that instance, there was an obvious connection between the fault (the auto crash) and the injury (death).
The defendant will not be found responsible if there is no direct causal connection. If prior to death, the decedent did not exercise reasonable care in obtaining treatment for the injury, it might be found that the proximate cause of the decedent’s death was not due to the defendant’s conduct or activity, but rather due to the decedent’s own actions.
Here is an example: A person gets a serious head injury and does not get immediate medical attention. After trying to deal with the injury themsevles, the person goes to the hospital. While at the hospital, the person dies from his or her injuries, while the hospital was delayed in trying to diagnose the injury. Although, the hospital may have been negligent in its treatment, the proximate cause of death may be found to be the person’s failure to seek medical attention if earlier treatment may have prevented his or her death.
Comparative Negligence
Comparative negligence is conduct by the decedent that contributed to his or her own death. Here is an example: A person riding a bicycle at night without brakes or light reflectors who is later struck and killed by a truck may be comparatively negligent.If a decedent is comparatively negligent, the amount of any damages awarded may be reduced by the percentage of fault assigned to the decedent. If the decedent is found to be 50% at fault, their damages awarded would be reduced by 50%. The defense of comparative negligence, however, is a fact for the jury to consider and it generally cannot be determined until after a case begins.
Imputed Comparative Negligence
In some instances, one of the beneficiaries may be comparatively negligent or responsible for the decedent’s death. In some states, if one beneficiary is partially or wholly at fault in the decedent’s death, the other beneficiaries cannot sue for wrongful death. In Florida, however, only a beneficiary who is partially at fault cannot recover damages. If a suvivor is found to be negligent, the non-negligent survivor’s recovery cannot be reduced due to another survivor’s negligence. Frazier v. Metropolitan Dade County, 701 So.2d 418, 420. (Fla. 3d DCA 1997).
Tuesday, October 27, 2009
Friday, October 23, 2009
Damages for Wrongful Death
Damages in wrongful death cases are intended to compensate for losses resulting from the death of a family member. Some losses are measurable a widow in a wrongful death suit could seek to recover the financial support that she would have received had her spouse lived. Other damages are more general and abstract in nature.
Types of recoverable damages include:
Direct Expenses: medical bills and funeral cost.
Loss of Companionship: what the person who died would have emotionally provided to a relationship, and the mental pain and suffering resulting from the decedent’s death.
Punitive Damages: what amount the defendant should be punished for his or her action resulting in the victim’s death.
Loss of Benefits: what the person could have received in pension/retirement benefits had they lived.
Loss of Future Earnings: what the person who died would have earned in salary if he or she had lived.
Amount of Damages
Calculating damages is a complex process involving multiple factors. Some factors include (1) how dependent the plaintiff was on the decedent; (2) the nature of the relationship with the decedent; (3) the anticipated lifespan of the decedent, (4) the anticipated earnings and other benefits of the decedent, and (5) the presence of any comparative fault. Often, determining the appropriate amount of damages for a particular element can be difficult. For example, when addressing damages for loss of companionship, a jury must attempt to come up with a dollar amount for the emotional loss you suffered from the decedent’s death.
An important element in wrongful death damage calculations is in estimating expected or future income losses. Future losses are the amount of earnings and benefits the decedent would have earned if he or she had lived. The common practice is to take the victim’s earnings at the time of his or her death and calculate the remaining years until retirement (or expected death) to determine future loss of earnings.
Here is an example: Suppose a spouse, 35 years of age, was earning $25,000 a year at the time of his death. Since he was not expected to retire or die for another 35 years, his yearly earnings at the time of his death would be multiplied by the number of years he was expected to work before retirement or expected death ($25,000 X 35 years). In this instance, his future loss is $875,000.
This is only a simple explanation of how future loss calculations are made; most of the time these calculations can get very complicated. In most cases, a life expectancy table is used to estimate the number of years the decedent would have lived had they survived. Instead of just using retirement age as a standard for life expectancy, a life expectancy table may consider other factors that may increase or decrease the number of years the decedent would have been expected to live, which would then affect the amount of damages you would receive for future loss.
Present Value
When using a life expectancy table to calculate future losses, courts will often reduce the total future loss to a present dollar value. Because most wrongful death damage awards are paid in a lump sum, a beneficiary essentially receives the total amount of earnings and benefits the decedent would have made over the course of his/her life, reduced to a single amount which is discounted to present dollars.
How is present value calculated?
In order to calculate present value, the future loss is first calculated using the life expectancy table. Once the future loss amount is calculated, it is then discounted using a mathematical table. The mathematical table estimates today’s value of one dollar in the future based on the number of years the decedent was expected to live and an agreed upon annual interest rate. After that is determined, the estimate from the table is multiplied by the decedent’s yearly salary.
The purpose for using present value is that a successful plaintiff will receive a sum that, if invested at a reasonable interest rate, should equal the value of the future loss amount and cover expenses that may eventually arise if it is conservatively invested. Unfortunately, figuring out the present value of future loss is not as simple as it first appears.
Here is an example: A spouse works in a department store earning $20,000 a year. Assuming he works there for the next 40 years, he will make a total of $800,000 by the 40th year. The spouse suddenly dies as a result of a wrongful death. The surviving spouse would recover a lump sum payment designed to compensate her for the $800,000 loss, discounted to present dollars.
Types of recoverable damages include:
Direct Expenses: medical bills and funeral cost.
Loss of Companionship: what the person who died would have emotionally provided to a relationship, and the mental pain and suffering resulting from the decedent’s death.
Punitive Damages: what amount the defendant should be punished for his or her action resulting in the victim’s death.
Loss of Benefits: what the person could have received in pension/retirement benefits had they lived.
Loss of Future Earnings: what the person who died would have earned in salary if he or she had lived.
Amount of Damages
Calculating damages is a complex process involving multiple factors. Some factors include (1) how dependent the plaintiff was on the decedent; (2) the nature of the relationship with the decedent; (3) the anticipated lifespan of the decedent, (4) the anticipated earnings and other benefits of the decedent, and (5) the presence of any comparative fault. Often, determining the appropriate amount of damages for a particular element can be difficult. For example, when addressing damages for loss of companionship, a jury must attempt to come up with a dollar amount for the emotional loss you suffered from the decedent’s death.
An important element in wrongful death damage calculations is in estimating expected or future income losses. Future losses are the amount of earnings and benefits the decedent would have earned if he or she had lived. The common practice is to take the victim’s earnings at the time of his or her death and calculate the remaining years until retirement (or expected death) to determine future loss of earnings.
Here is an example: Suppose a spouse, 35 years of age, was earning $25,000 a year at the time of his death. Since he was not expected to retire or die for another 35 years, his yearly earnings at the time of his death would be multiplied by the number of years he was expected to work before retirement or expected death ($25,000 X 35 years). In this instance, his future loss is $875,000.
This is only a simple explanation of how future loss calculations are made; most of the time these calculations can get very complicated. In most cases, a life expectancy table is used to estimate the number of years the decedent would have lived had they survived. Instead of just using retirement age as a standard for life expectancy, a life expectancy table may consider other factors that may increase or decrease the number of years the decedent would have been expected to live, which would then affect the amount of damages you would receive for future loss.
Present Value
When using a life expectancy table to calculate future losses, courts will often reduce the total future loss to a present dollar value. Because most wrongful death damage awards are paid in a lump sum, a beneficiary essentially receives the total amount of earnings and benefits the decedent would have made over the course of his/her life, reduced to a single amount which is discounted to present dollars.
How is present value calculated?
In order to calculate present value, the future loss is first calculated using the life expectancy table. Once the future loss amount is calculated, it is then discounted using a mathematical table. The mathematical table estimates today’s value of one dollar in the future based on the number of years the decedent was expected to live and an agreed upon annual interest rate. After that is determined, the estimate from the table is multiplied by the decedent’s yearly salary.
The purpose for using present value is that a successful plaintiff will receive a sum that, if invested at a reasonable interest rate, should equal the value of the future loss amount and cover expenses that may eventually arise if it is conservatively invested. Unfortunately, figuring out the present value of future loss is not as simple as it first appears.
Here is an example: A spouse works in a department store earning $20,000 a year. Assuming he works there for the next 40 years, he will make a total of $800,000 by the 40th year. The spouse suddenly dies as a result of a wrongful death. The surviving spouse would recover a lump sum payment designed to compensate her for the $800,000 loss, discounted to present dollars.
Tuesday, October 20, 2009
Automobile Damage FAQ
Car Repair Questions
Can I control whether my car is repaired or replaced?
How is the market value of my car determined?
What if I am “upside down” on the loan for my car?
Can I choose my own repair shop?
What kind of parts will be used in the repair?
What if my car already had some damage before the accident?
Will I have to pay the towing and storage costs?
What about license and registration fees that I had to pay to drive the car?
Rental Car Questions
What if I need a rental car? Do I have to pay for it while my car is being repaired?
What kind of rental car am I entitled to?
Should I purchase any extra insurance on the rental car provided to me?
Can I control whether my car is repaired or replaced?
Like most individuals, not having the use of your car due to an accident is a major inconvenience. Normally, the insurance company has the option to either repair or replace your vehicle, depending on whether it costs less to replace your vehicle than to repair it. If this is the case, the insurance company will declare your vehicle a “total loss,” and take action to replace your vehicle. If your car is declared a “total loss,” the insurance company buys your car for its market value, which may be determined by a source such as the Kelley Blue Book. If you wish to keep the wrecked car, you may purchase it back from the insurance company for its salvage value. The insurance adjuster can deduct the salvage value from the settlement and you can keep the car if this is the case, you may choose to use your own money to repair your car to bring it back to a safe and drivable state.
Often the situation is reversed, and the insurance company chooses to repair a vehicle rather than replace it. In this case, if you are concerned about the safety of the repaired vehicle, you should contact our office to discuss your options.
How is the market value of my car determined?
You are entitled to recover the “fair market value” or the “actual cash value” of your vehicle immediately before the accident. One common source used to estimate fair market value is the Kelley Blue Book. Other sources of information are the local newspaper or the Auto Trader, which may list the for-sale price of cars of the same make, model, and year as yours. Occasionally, an expert vehicle appraiser is used to help prove the value of your vehicle.
What if I am “upside down” on the loan for my car?
If you are upside down on a loan, it means that you owe more money on the loan than the fair market value of the car. Unfortunately, if your vehicle is a total loss, the insurance company is not required to pay more money to you simply because you are “upside down” with your car loan. They are only required to pay the “fair market value” of your car.
Can I choose my own repair shop?
Yes. You are allowed to take your car wherever you wish to have it repaired, however the cost of the repair is not always determined by the estimate given by the repair facility of your choosing.
What kind of parts will be used in the repair?
You have the right to demand that only original manufacturer parts be used in the repair, so if your car is a Saab, you should receive genuine Saab parts. Your car was likely not brand new at the time of the accident, so the mechanic repairing your car may choose to use refurbished or reconditioned parts.
What if my car already had some damage before the accident?
Your vehicle may have had damage prior to the accident, and it can be difficult to determine exactly what portion of the damage was caused by the accident itself. For example, if your car has a mechanical problem, the insurance company may claim that it was a preexisting problem if some evidence indicates that the vehicle may have sustained substantial wear and tear. Therefore, it is important that you prove the connection between the auto accident and the damage you are claiming. Normally, mechanics and collision repair personnel can help to prove the age of body damage or the cause of a mechanical failure. They can assist to convince the insurance company that the auto accident caused the damage you are claiming.
Will I have to pay the towing and storage costs?
The insurance company for the driver who caused the accident will customarily pay the reasonable towing and storage costs, unless there is a dispute as to who was at fault in the accident. If the insurance company declares the car a total loss, they will have the car moved to a wrecking yard or a free storage area. If you do not wish to allow the insurance company to move your car, you will have to pay the storage costs from the day of your refusal forward, or you can pay to have it towed to your home.
What about license and registration fees that I had to pay to drive the car?
To drive and operate a motor vehicle in the United States, one has to pay license and registration fees. In some states, you are entitled to be reimbursed for the prorated amount of these costs that are unused. The insurance company may reimburse you for tag transfer fees and, in some cases, a prorated amount of sales tax on the actual cash value of the car at the time of the accident. You may choose to contact a Florida auto accident lawyer to learn whether license and registration fees are recoverable in your case.
What if I need a rental car? Do I have to pay for it while my car is being repaired?
You must pay for your own rental car if you were the cause of the accident, or if there is some dispute over who is to blame. You may seek coverage under your own insurance policy to see if rental coverage is available. Many insurance contracts do not provide for rental coverage for their own customers, so you need to contact your insurance agent to determine what coverage exists.
If the other driver is at fault, then your attorney may demand that the insurance company for the person who caused the accident provide you with a rental car for the time needed to repair your vehicle. On certain occassions, you must pay the rental car bill first, with reimbursement coming from the insurance company later.
What kind of rental car am I entitled to?
The insurance company has to pay for the reasonably incurred rental cost of a substitute vehicle. Often, there are disputes as to what qualifies as a “substitute” vehicle. Essentially, it should be a vehicle of similar quality, within the confines of what is available for rent.
Should I purchase any extra insurance on the rental car provided to me?
Your own insurance policy should cover you while driving the rental car, but you should call your insurance agent to be sure that you are covered. The other driver’s insurance company is not required to pay for additional insurance if you choose to purchase it from the car rental company.
Can I control whether my car is repaired or replaced?
How is the market value of my car determined?
What if I am “upside down” on the loan for my car?
Can I choose my own repair shop?
What kind of parts will be used in the repair?
What if my car already had some damage before the accident?
Will I have to pay the towing and storage costs?
What about license and registration fees that I had to pay to drive the car?
Rental Car Questions
What if I need a rental car? Do I have to pay for it while my car is being repaired?
What kind of rental car am I entitled to?
Should I purchase any extra insurance on the rental car provided to me?
Can I control whether my car is repaired or replaced?
Like most individuals, not having the use of your car due to an accident is a major inconvenience. Normally, the insurance company has the option to either repair or replace your vehicle, depending on whether it costs less to replace your vehicle than to repair it. If this is the case, the insurance company will declare your vehicle a “total loss,” and take action to replace your vehicle. If your car is declared a “total loss,” the insurance company buys your car for its market value, which may be determined by a source such as the Kelley Blue Book. If you wish to keep the wrecked car, you may purchase it back from the insurance company for its salvage value. The insurance adjuster can deduct the salvage value from the settlement and you can keep the car if this is the case, you may choose to use your own money to repair your car to bring it back to a safe and drivable state.
Often the situation is reversed, and the insurance company chooses to repair a vehicle rather than replace it. In this case, if you are concerned about the safety of the repaired vehicle, you should contact our office to discuss your options.
How is the market value of my car determined?
You are entitled to recover the “fair market value” or the “actual cash value” of your vehicle immediately before the accident. One common source used to estimate fair market value is the Kelley Blue Book. Other sources of information are the local newspaper or the Auto Trader, which may list the for-sale price of cars of the same make, model, and year as yours. Occasionally, an expert vehicle appraiser is used to help prove the value of your vehicle.
What if I am “upside down” on the loan for my car?
If you are upside down on a loan, it means that you owe more money on the loan than the fair market value of the car. Unfortunately, if your vehicle is a total loss, the insurance company is not required to pay more money to you simply because you are “upside down” with your car loan. They are only required to pay the “fair market value” of your car.
Can I choose my own repair shop?
Yes. You are allowed to take your car wherever you wish to have it repaired, however the cost of the repair is not always determined by the estimate given by the repair facility of your choosing.
What kind of parts will be used in the repair?
You have the right to demand that only original manufacturer parts be used in the repair, so if your car is a Saab, you should receive genuine Saab parts. Your car was likely not brand new at the time of the accident, so the mechanic repairing your car may choose to use refurbished or reconditioned parts.
What if my car already had some damage before the accident?
Your vehicle may have had damage prior to the accident, and it can be difficult to determine exactly what portion of the damage was caused by the accident itself. For example, if your car has a mechanical problem, the insurance company may claim that it was a preexisting problem if some evidence indicates that the vehicle may have sustained substantial wear and tear. Therefore, it is important that you prove the connection between the auto accident and the damage you are claiming. Normally, mechanics and collision repair personnel can help to prove the age of body damage or the cause of a mechanical failure. They can assist to convince the insurance company that the auto accident caused the damage you are claiming.
Will I have to pay the towing and storage costs?
The insurance company for the driver who caused the accident will customarily pay the reasonable towing and storage costs, unless there is a dispute as to who was at fault in the accident. If the insurance company declares the car a total loss, they will have the car moved to a wrecking yard or a free storage area. If you do not wish to allow the insurance company to move your car, you will have to pay the storage costs from the day of your refusal forward, or you can pay to have it towed to your home.
What about license and registration fees that I had to pay to drive the car?
To drive and operate a motor vehicle in the United States, one has to pay license and registration fees. In some states, you are entitled to be reimbursed for the prorated amount of these costs that are unused. The insurance company may reimburse you for tag transfer fees and, in some cases, a prorated amount of sales tax on the actual cash value of the car at the time of the accident. You may choose to contact a Florida auto accident lawyer to learn whether license and registration fees are recoverable in your case.
What if I need a rental car? Do I have to pay for it while my car is being repaired?
You must pay for your own rental car if you were the cause of the accident, or if there is some dispute over who is to blame. You may seek coverage under your own insurance policy to see if rental coverage is available. Many insurance contracts do not provide for rental coverage for their own customers, so you need to contact your insurance agent to determine what coverage exists.
If the other driver is at fault, then your attorney may demand that the insurance company for the person who caused the accident provide you with a rental car for the time needed to repair your vehicle. On certain occassions, you must pay the rental car bill first, with reimbursement coming from the insurance company later.
What kind of rental car am I entitled to?
The insurance company has to pay for the reasonably incurred rental cost of a substitute vehicle. Often, there are disputes as to what qualifies as a “substitute” vehicle. Essentially, it should be a vehicle of similar quality, within the confines of what is available for rent.
Should I purchase any extra insurance on the rental car provided to me?
Your own insurance policy should cover you while driving the rental car, but you should call your insurance agent to be sure that you are covered. The other driver’s insurance company is not required to pay for additional insurance if you choose to purchase it from the car rental company.
Monday, October 12, 2009
What to Do if You Slip and Fall
1. Make sure to write down the names, addresses and phone numbers of anyone in the vicinity where the incident occurred – both those who saw you fall, and others who were there after the incident—since you will likely need them as witnesses on your behalf. Even if someone did not see you fall, he or she could, if necessary, describe your pain and the conditions of the floor, lighting, or other hazard immediately after you fell.
2. Inspect the area where you fell, and try to determine what caused you to fall.
3. Have someone take photographs of the area as soon as possible, so a record is made. Dangerous conditions have a way of changing if the property owner thinks that you might file a claim for injuries.
4. If you slip on any substance on the floor, obtain a sample of the substance if possible.
5. After receiving appropriate initial medical treatment, contact an attorney with experience in handling claims for personal injury resulting from slip and fall accidents.
6. If the incident occurred in a store or place of business, speak with the manager or supervisor on duty, and have them make a record of the incident, being sure to get a copy of anything prepared. If anyone (especially an employee, supervisor or manager) makes a comment suggesting that this has occurred before, or that they were aware of the condition before your fall, obtain this person’s name and job title. Make sure to get the name, address and phone number of anyone else who heard him or her make the statement.
2. Inspect the area where you fell, and try to determine what caused you to fall.
3. Have someone take photographs of the area as soon as possible, so a record is made. Dangerous conditions have a way of changing if the property owner thinks that you might file a claim for injuries.
4. If you slip on any substance on the floor, obtain a sample of the substance if possible.
5. After receiving appropriate initial medical treatment, contact an attorney with experience in handling claims for personal injury resulting from slip and fall accidents.
6. If the incident occurred in a store or place of business, speak with the manager or supervisor on duty, and have them make a record of the incident, being sure to get a copy of anything prepared. If anyone (especially an employee, supervisor or manager) makes a comment suggesting that this has occurred before, or that they were aware of the condition before your fall, obtain this person’s name and job title. Make sure to get the name, address and phone number of anyone else who heard him or her make the statement.
Wednesday, October 7, 2009
Causation
A medical professional may have been negligent in providing care to a patient, it’s not always possible to link that negligence to an injury. Because the law requires a connection between fault and injury, not all instances of medical malpractice allow for an award of damages. It is usually very difficult to determine causation in medical malpractice cases and reaching a verdict may require the assistance of expert witnesses.
Expert witnesses are usually required in medical malpractice cases to establish the standard of medical care in the geographical area or in the area of medical specialty at issue. Unless the cause is obvious to a layperson, such as where a wrong arm is amputated or similar error, expert testimony is required to establish that the malpractice caused the patient’s injuries.
In many cases, the cause of injury is less clear, and can be spread among many health care providers. For example, a patient may be treated by a number of doctors, nurses, and medical technicians in the course of a hospital stay. Determining when the negligence occurred and who was responsible for the patient’s injuries can be a very daunting task.
The first doctor may have incorrectly diagnosed a patient, but a subsequent doctor may have been negligent in failing to correct the diagnosis. A subsequent series of mishaps in the operating room, each by a different technician, may require naming each technician as a defendant because each mishap contributed to the injury. Additional injury may have been caused by the use of a defective medical device or drug, or the negligence of an operating room doctor. In such cases, experts are needed to determine the cause of injury in light of the unfortunate sequence of events.
Expert witnesses are usually required in medical malpractice cases to establish the standard of medical care in the geographical area or in the area of medical specialty at issue. Unless the cause is obvious to a layperson, such as where a wrong arm is amputated or similar error, expert testimony is required to establish that the malpractice caused the patient’s injuries.
In many cases, the cause of injury is less clear, and can be spread among many health care providers. For example, a patient may be treated by a number of doctors, nurses, and medical technicians in the course of a hospital stay. Determining when the negligence occurred and who was responsible for the patient’s injuries can be a very daunting task.
The first doctor may have incorrectly diagnosed a patient, but a subsequent doctor may have been negligent in failing to correct the diagnosis. A subsequent series of mishaps in the operating room, each by a different technician, may require naming each technician as a defendant because each mishap contributed to the injury. Additional injury may have been caused by the use of a defective medical device or drug, or the negligence of an operating room doctor. In such cases, experts are needed to determine the cause of injury in light of the unfortunate sequence of events.
Thursday, October 1, 2009
Negligence
While negligence is known as the most common tort, it also has the distinction of being the most difficult one to define. Negligence is defined as the failure to use reasonable due care to avoid a foreseeable harm to a person, place or thing. If you are negligent and your negligence causes injury to another person to whom you have a “duty of care,” you may be liable to pay any damages resulting from the injury caused by your carelessness.
A person may be considered “careless” or “negligent” if they do not issue the appropriate level of care for a particular situation in question. For example, a higher level of care is called for if you are pouring boiling coffee into a friend’s glass over his lap than is called for if you are pouring cold lemonade over the kitchen sink. Generally, the law requires that individuals exercise the same kind of “due care” that a reasonable person would exercise under the same circumstances. This is called the “reasonable man” or “reasonable person” standard.
Some common negligence claims involve:
A person may be considered “careless” or “negligent” if they do not issue the appropriate level of care for a particular situation in question. For example, a higher level of care is called for if you are pouring boiling coffee into a friend’s glass over his lap than is called for if you are pouring cold lemonade over the kitchen sink. Generally, the law requires that individuals exercise the same kind of “due care” that a reasonable person would exercise under the same circumstances. This is called the “reasonable man” or “reasonable person” standard.
Some common negligence claims involve:
- alcoholic beverage liability (a provider of alcohol either a social host or bartender serves too many drinks to an underage or noticeably intoxicated individual who is then involved in an accident that causes injury to a third person)
- motor vehicle accidents (accidents caused by reckless or careless driving)
- slip and fall accidents (a person slips, falls and is injured on someone else’s property)
- medical malpractice (when a doctor doesn’t maintain the level of skill and knowledge commonly exercised by other doctors)
Product Liability
The law of product liability is the area of law that deals with the liability of the manufacturer, wholesaler or retailer of a product for injuries resulting from that product. This includes the manufacturer of component parts of the product, an assembling manufacturer, the wholesaler, the retail store or other ultimate seller of the product, and any other party in the distributive chain, regardless of whether you actually purchased the item yourself.
Here is an example: You borrow an power saw with a design defect from a friend. The cord’s wires cannot carry the electrical load it indicates that it can. The result is an electrical fire that burns down your house. You can file a product liability lawsuit against the maker of the power saw, its distributor, its wholesaler, and the retail store where it was originally purchased by your friend.
Product liability law gives consumers the ability to sue for and be compensated for damages from manufacturers, distributors and vendors for injuries resulting from accidents caused by defective products. Nearly all products are subject to products liability law, not just items on the store shelves – products subject to the law include food, drugs, appliances, tobacco, gases, real estate, automobiles, blood, writings, maps, medical devices, medical implants, and even commercial jets.
Research from the U.S. Consumer Product Safety Commission indicates that defective or unsafe products cause 29.4 million injuries and 21,400 deaths each year. You or a family member may be injured by something seemingly harmless or something you use every day, such as a coffee maker, air conditioner, baby chair, toy, car, hair dryer, toaster, iron, hand tool or even your clothing. Products liability claims are tort-based claims that can arise from negligence, strict liability, or breach of warranty, though products liability is often focused on strict liability claims.
Strict Liability
Strict liability is the term used to describe situations in which a person can be held liable for damages caused to another person even if they are not negligent or found to be at fault. Strict liability means “liability without fault” – therefore a person is liable whether or not they were negligent and whether or not they intended to do any harm.
Strict liability is usually imposed on manufactured products, under the law of product liability. Strict liability claims do not involve proof of whether or not someone acted reasonably or used appropriate care in manufacturing a certain product. Translated to products liability terms, a defendant in a product liability claim will be found liable for damages to a plaintiff if it is found that the product is defective, regardless of whether the manufacturer or supplier exercised great care when designing and manufacturing it.
The law imposes strict liability on inherently or abnormally dangerous activities, or activities that are likely to cause particular kinds of harm. A prime example of this type of activity is the use of explosives – if injury results from the use of explosives, regardless of the purpose for which they are used and the care exercised, the operator of the explosives is liable to those damaged by their use.
In lights of these facts, a plaintiff does not have to demonstrate that the manufacturer or vendor was negligent or careless, only that:
Here is an example: A supermarket has a contract with a manufacturer to make a line of soft drinks for the store. The manufacturer uses a bottle that does not properly release pressure upon opening. If somebody is injured by an exploding bottlecap, then the supermarket is liable as well as the manufacturer. Even if the supermarket was unaware that the bottles were defective, they are still held liable.
A breach of warranty claim arises under the law of contracts, where the law imposes certain “implied warranties” on the sale of products. These implied warranties include the warranty of merchantability (that the goods are in proper condition for use and free of defects), and the warranty of fitness for a particular purpose (e.g., the refrigerator must be able to keep food cold and fresh; the chair must be capable of supporting a person’s weight). These warranties are called implied warranties because the law assumes that they apply even if they are not expressly stated on the packaging or manuals. If a product does not meet these standards, the purchaser may have the right to return it to the place of purchase and receive a refund, or sometimes file a case and receive monetary damages.
The law of contracts covers economic loss caused by the breach of warranties in the sale of goods. The Uniform Commercial Code, Article 2, also deals with the sales of goods and the implied and express warranties of merchantability in the sales of goods. U.C.C. §§ 2-314 and 2-315.
In a negligence claim, a plaintiff must show that a manufacturer, seller, wholesaler or other party involved in the distributive chain had a duty to exercise reasonable care in the process of manufacturing or selling a product and failed to fulfill that duty, resulting in injury to the plaintiff. Negligence consists of doing something that a person of ordinary prudence would not do under the same or similar circumstances; or failing to do something that a person of ordinary prudence would do under the same or similar circumstances.
This can take the form of negligence in drawing up or reviewing plans for a product, negligence in failure to inspect or test the product adequately, negligence in issuing inadequate warnings, negligence in maintaining the machines that make the component parts of the product, negligence in failure to anticipate probable uses of the product, or instructions regarding the use of the product, or any other aspect of the manufacturing or distribution process where due care is not used.
Here is an example: You borrow an power saw with a design defect from a friend. The cord’s wires cannot carry the electrical load it indicates that it can. The result is an electrical fire that burns down your house. You can file a product liability lawsuit against the maker of the power saw, its distributor, its wholesaler, and the retail store where it was originally purchased by your friend.
Product liability law gives consumers the ability to sue for and be compensated for damages from manufacturers, distributors and vendors for injuries resulting from accidents caused by defective products. Nearly all products are subject to products liability law, not just items on the store shelves – products subject to the law include food, drugs, appliances, tobacco, gases, real estate, automobiles, blood, writings, maps, medical devices, medical implants, and even commercial jets.
Research from the U.S. Consumer Product Safety Commission indicates that defective or unsafe products cause 29.4 million injuries and 21,400 deaths each year. You or a family member may be injured by something seemingly harmless or something you use every day, such as a coffee maker, air conditioner, baby chair, toy, car, hair dryer, toaster, iron, hand tool or even your clothing. Products liability claims are tort-based claims that can arise from negligence, strict liability, or breach of warranty, though products liability is often focused on strict liability claims.
Strict Liability
Strict liability is the term used to describe situations in which a person can be held liable for damages caused to another person even if they are not negligent or found to be at fault. Strict liability means “liability without fault” – therefore a person is liable whether or not they were negligent and whether or not they intended to do any harm.
Strict liability is usually imposed on manufactured products, under the law of product liability. Strict liability claims do not involve proof of whether or not someone acted reasonably or used appropriate care in manufacturing a certain product. Translated to products liability terms, a defendant in a product liability claim will be found liable for damages to a plaintiff if it is found that the product is defective, regardless of whether the manufacturer or supplier exercised great care when designing and manufacturing it.
The law imposes strict liability on inherently or abnormally dangerous activities, or activities that are likely to cause particular kinds of harm. A prime example of this type of activity is the use of explosives – if injury results from the use of explosives, regardless of the purpose for which they are used and the care exercised, the operator of the explosives is liable to those damaged by their use.
In lights of these facts, a plaintiff does not have to demonstrate that the manufacturer or vendor was negligent or careless, only that:
- a defect in the product caused the accident
- he or she was using the product in a manner consistent with the way it was meant to be used
- the product was not substantially changed between the time it left the seller or manufacturer’s hands and the time it reached the plaintiff
- You should be aware that even if you are not the original owner of the merchandise you can sue for product liability. For example, if a friend lends you a lawnmower that turns out to be defective and injures you, you can file a product liability claim against the manufacturer, distributor, wholesaler, and/or vendor of the item. Even if a company doesn’t actually make the product, but simply puts its label on it, they can be held liable for injuries.
Here is an example: A supermarket has a contract with a manufacturer to make a line of soft drinks for the store. The manufacturer uses a bottle that does not properly release pressure upon opening. If somebody is injured by an exploding bottlecap, then the supermarket is liable as well as the manufacturer. Even if the supermarket was unaware that the bottles were defective, they are still held liable.
A breach of warranty claim arises under the law of contracts, where the law imposes certain “implied warranties” on the sale of products. These implied warranties include the warranty of merchantability (that the goods are in proper condition for use and free of defects), and the warranty of fitness for a particular purpose (e.g., the refrigerator must be able to keep food cold and fresh; the chair must be capable of supporting a person’s weight). These warranties are called implied warranties because the law assumes that they apply even if they are not expressly stated on the packaging or manuals. If a product does not meet these standards, the purchaser may have the right to return it to the place of purchase and receive a refund, or sometimes file a case and receive monetary damages.
The law of contracts covers economic loss caused by the breach of warranties in the sale of goods. The Uniform Commercial Code, Article 2, also deals with the sales of goods and the implied and express warranties of merchantability in the sales of goods. U.C.C. §§ 2-314 and 2-315.
In a negligence claim, a plaintiff must show that a manufacturer, seller, wholesaler or other party involved in the distributive chain had a duty to exercise reasonable care in the process of manufacturing or selling a product and failed to fulfill that duty, resulting in injury to the plaintiff. Negligence consists of doing something that a person of ordinary prudence would not do under the same or similar circumstances; or failing to do something that a person of ordinary prudence would do under the same or similar circumstances.
This can take the form of negligence in drawing up or reviewing plans for a product, negligence in failure to inspect or test the product adequately, negligence in issuing inadequate warnings, negligence in maintaining the machines that make the component parts of the product, negligence in failure to anticipate probable uses of the product, or instructions regarding the use of the product, or any other aspect of the manufacturing or distribution process where due care is not used.
Drunk Drivers
According to the National Highway Transportation Safety Administration, drunk drivers injured more than 250,000 individuals during 2005. Although the law can never replace a loved one, it does provide a means of recovery for victims. Victims can sue the drunk driver under the general laws of negligence, but it may be difficult to collect from a drunk driver if they are uninsured or underinsured and/or have few assets to support a lawsuit.
Injury or death caused by a drunk driver is perhaps the most upsetting, anger-provoking of all kinds of personal injury cases. The thought of an innocent victim suffering serious or fatal injury at the hands of an irresponsible individual can evoke outrage among members of the community.
Even if it is difficult or impossible to pursue recovery against the drunk driver, there may be a way to pursue recovery against the person or establishment who provided the alcoholic beverage to the drunk driver. People who serve alcoholic beverages may be liable under Florida law for damages resulting from the consumption of alcoholic beverages. Fla. Stat. § 768.125. Liability may be imposed either under specific state laws (“dram shop acts”) or under the general law of negligence. Dram shop acts (“dram” was once a common term for “liquor”) are laws that impose liability for negligence on the sellers of alcoholic beverages for sales to persons under the legal drinking age or to those who are intoxicated.
Florida requires that the bar, liquor store, or restaurant have notice that the person is a habitual alcohol abuser in order to impose liability. Fla. Stat. § 562.50. This rule is different, however, if the intoxicated person is under the drinking age. A liquor store, bar or restaurant may be liable for any damages caused by a person’s drinking if it sold alcohol to a person under the age of 21. Fla. Stat. § 562.11.
Liability can attach to “social hosts” as well. A social host is somebody who serves alcoholic beverages in a social setting, such as a home or a party, or as where an employer serves alcoholic beverages at a company picnic. The social host is not required to make sure that no one is consuming more alcohol than they can handle unless the host can reasonably be aware of a problem and prevent it. However, under Florida law, the social host cannot be held liable. Dowell v. Gracewood Fruit Co., 559 So.2d 217 (Fla. 1990).
Injury or death caused by a drunk driver is perhaps the most upsetting, anger-provoking of all kinds of personal injury cases. The thought of an innocent victim suffering serious or fatal injury at the hands of an irresponsible individual can evoke outrage among members of the community.
Even if it is difficult or impossible to pursue recovery against the drunk driver, there may be a way to pursue recovery against the person or establishment who provided the alcoholic beverage to the drunk driver. People who serve alcoholic beverages may be liable under Florida law for damages resulting from the consumption of alcoholic beverages. Fla. Stat. § 768.125. Liability may be imposed either under specific state laws (“dram shop acts”) or under the general law of negligence. Dram shop acts (“dram” was once a common term for “liquor”) are laws that impose liability for negligence on the sellers of alcoholic beverages for sales to persons under the legal drinking age or to those who are intoxicated.
Florida requires that the bar, liquor store, or restaurant have notice that the person is a habitual alcohol abuser in order to impose liability. Fla. Stat. § 562.50. This rule is different, however, if the intoxicated person is under the drinking age. A liquor store, bar or restaurant may be liable for any damages caused by a person’s drinking if it sold alcohol to a person under the age of 21. Fla. Stat. § 562.11.
Liability can attach to “social hosts” as well. A social host is somebody who serves alcoholic beverages in a social setting, such as a home or a party, or as where an employer serves alcoholic beverages at a company picnic. The social host is not required to make sure that no one is consuming more alcohol than they can handle unless the host can reasonably be aware of a problem and prevent it. However, under Florida law, the social host cannot be held liable. Dowell v. Gracewood Fruit Co., 559 So.2d 217 (Fla. 1990).
Tuesday, September 22, 2009
Auto Insurance Coverage
Automobile insurance laws in Florida require the owner of a vehicle to have a certain amount of personal injury protection. Fla. Stat. § 627.736. Personal injury protection provides compensation to you in the event you are in an accident. The minimum amount of personal injury coverage required by law is $10,000.00 Fla. Stat. § 627.736, but you can purchase higher amounts of insurance that covers medical, surgical, funeral, and disability benefits regardless of fault. This is known as no-fault insurance. Fla. Stat. § 627.731.
Throughout most of the United States, auto insurance functions under a traditional fault-based system. Insurance companies make payments based on each person’s degree of fault in a particular motor vehicle accident. However, long, drawn out court battles are often required to determine who is at fault in many cases. In an attempt to cut down on this problem, thirteen states (Florida, Hawaii, Kansas, Kentucky, Massachusetts, Michigan, Minnesota, New Jersey, New York, North Dakota, Pennsylvania, Utah, and Colorado) have adopted no-fault insurance laws- also called personal injury protection or PIP.
Under Florida’s no-fault insurance statute, if you are hurt in an accident, your insurance automatically will pay 80% of your reasonable medical expenses related to injuries sustained in the accident and 60% of your lost earnings subject to the limits of the no-fault coverage and any applicable deductible (or up to the specified policy limit) regardless of who caused the accident.
If you are a family member, no-fault insurance also covers relatives in your household who do not have their own no-fault policy. Personal Injury Protection benefits can be paid by your policy even if family members are passengers in another person’s car or pedestrians when they are hurt. In the event that you cause damage to someone else’s property, no-fault insurance will pay up to a predetermined limit for damages your vehicle does to other people’s tangible property such as buildings, trees, road signs, etc, and will pay to repair or replace other vehicles, but only if the vehicles were properly parked.
In the instance you are killed in a car accident, no-fault pays survivor’s benefits, which is income which you would have provided to your family. These benefits are usually limited to a maximum amount per month for a set amount of time. Your policy will not pay benefits if you are the owner or registrant of an uninsured motor vehicle that was involved in an accident. Therefore, it is important that you have insurance coverage on all vehicles that you own.
Many people commonly believe that if they meet the requirements under Florida law then they have full coverage. As the descriptions of the different categories of automobile insurance below indicate, the Florida requirements constitute a very bare minimum and rarely do they adequately protect persons involved in automobile accidents. The statutory minimum alone does not constitute full coverage. Uninsured motorist coverage, essential coverage, including bodily injury coverage, and collision are not required by Florida law.
Limits to No-Fault Insurance
Drivers should be aware that no-fault insurance has several limitations. These are a few things which no-fault insurance generally does not pay for: repairs to your vehicle after an accident no matter whose fault it was; repairs to another person’s vehicle after an accident, no matter whose fault it was, unless the vehicle was properly parked; and costs for replacement of your vehicle if it was stolen.
In order to receive a guaranteed payment, you must give up some of your rights to sue the other driver involved in the accident. You may be allowed to sue for non-economic damages if the amount of these damages exceeds a specified tort threshold. Florida, Michigan, New Jersey, New York and Pennsylvania have verbal thresholds. The other eight states use a monetary threshold: Colorado, Hawaii, Kansas, Kentucky, Massachusetts, Minnesota, North Dakota and Utah. New Jersey, Pennsylvania and Kentucky have a “choice” no-fault law. In these three states, motorists may reject the lawsuit threshold and retain the right to sue for any auto-related injury.
If you wish to file a lawsuit against the at fault driver, Florida’s no-fault insurance law requires that you must show that you sustained a “serious” injury. Fla. Stat. § 627.737. Pain and suffering damages are generally only recoverable for serious injuries that involve sustained permanent injury, significant scarring or disfigurement, or death.
There are two categories of auto insurance – first-party coverage and third-party coverage. First-party coverage covers you and your property (such as medical expenses, damage to your vehicle and the insurance company’s duty to defend you in the event that you are sued as the result of your operation of a vehicle, etc.). Third-party coverage is for your responsibility to pay for injury caused to other people (and vice versa), whether in your vehicle, or another vehicle involved in the accident.
The coverage (and its exclusions) is explained in your insurance policy. In exchange for the payment of a premium, the insurance company promises to provide compensation in the event of certain occurrences. While adequately explaining all aspects of insurance coverage and laws would be far too time consuming, the following is a brief synopsis of the most typical coverage and issues.
Personal Injury Protection
In addition to liability insurance, Florida requires all drivers to have Personal Injury Protection (PIP) coverage. Fla. Stat. § 627.736. Personal injury coverage is not health insurance, and it is not designed to pay for your medical bills. What it is designed to do is offer a onetime settlement or payment for all of your damages. In Florida, your policy must cover eighty percent of all reasonable expenses for medically necessary medical, surgical, X-ray, dental, and rehabilitative services, including prosthetic devices, and medically necessary ambulance, hospital, and nursing services. Fla. Stat. § 627.736.
The personal injury insurance minimum required by law in Florida is ten thousand dollars for bodily injury or death of one person in any one accident. Fla. Stat. § 627.736. Lawsuits in Florida must be filed against the negligent driver and may not also name the insurance carrier as a defendant. In fact, the jury is not allowed to know that there is insurance coverage available on the defendant. If the jury renders a verdict in excess of the defendant’s liability policy limit, the defendant is then personally liable out of his or her own assets for the additional amount.
Bodily Injury Coverage
If your injury is caused by the negligence of a defendant, your attorney can file a claim under the bodily injury liability coverage of the negligent defendant’s insurance policy. Bodily injury liability coverage covers a driver’s legal liability for the injury or death that they, or any permitted user, may cause with their vehicle. When you are injured in a car accident and the person at fault is either the driver of the other vehicle or, if you are a passenger, the driver of the car in which you are riding, you may file a bodily injury claim with that driver’s insurance company. In most bodily injury liability policies, bodily injury includes sickness, disease, injury, or death arising from sickness, disease, or injury.
Medical Payments (Med-Pay) Coverage
When purchasing automobile insurance, you may elect to receive an optional type of coverage called medical payments (med-pay) coverage. Fla. Stat. § 627.736. Med-pay coverage pays accident-related medical expenses not covered by Personal Injury Protection. This coverage is available to the insured driver (the individual who holds the policy which includes med-pay coverage) and any passengers in the insured’s vehicle for injuries sustained, regardless of the fault of the driver. It is important to note that the insurance policy of the negligent party does not pay med-pay or PIP benefits to an injured plaintiff. These benefits are limited to the driver or passengers in the insured vehicle, regardless of fault. The plaintiff looks to his own insurance policy or the policy on the vehicle in which he was a passenger for med-pay or PIP benefits.
Collision Coverage
Collision coverage is a type of voluntary coverage you can purchase, which will cover the repair or replacement of your own vehicle after an accident, regardless of who is at fault. An innocent victim of an accident may present a claim for the property damage under his or her own collision coverage or under the negligent defendant’s property damage liability insurance coverage.
Your own collision coverage normally includes a deductible, while property damage liability insurance coverage does not. In an automobile accident case, after a claim has been paid under collision coverage, the insurance carrier who paid the claim may proceed against the property damage liability insurance carrier for the negligent defendant to recover the amount paid out. This process is called subrogation, and does not affect your recovery.
Uninsured and Underinsured Motorist Benefits
Uninsured/underinsured motorist benefits are another type of voluntary coverage you can purchase, and it is recommended that you add this type of coverage to your policy. This coverage protects you against a negligent defendant who either does not have liability insurance coverage or only has minimum coverage that is inadequate to fully compensate you for your injuries. If you are involved in an accident with an uninsured but negligent individual, your attorney would make a claim for you under your own uninsured motorist coverage. Your own insurance carrier would then have to pay any judgment which may be rendered, up to the limits of the policy which you purchased.
If the person who caused the accident has liability insurance, but the policy limit of his or her liability insurance is less than the uninsured motorist coverage of your policy, your attorney can make an additional claim under your own policy for what is called underinsured motorist benefits, in the event that your damages exceed the limits of the other party’s liability coverage. Uninsured/underinsured motorist claims can be a problematic area of law to practice, and the experience of an attorney familiar with these issues is important in order to obtain the maximum amount of recovery for you.
Throughout most of the United States, auto insurance functions under a traditional fault-based system. Insurance companies make payments based on each person’s degree of fault in a particular motor vehicle accident. However, long, drawn out court battles are often required to determine who is at fault in many cases. In an attempt to cut down on this problem, thirteen states (Florida, Hawaii, Kansas, Kentucky, Massachusetts, Michigan, Minnesota, New Jersey, New York, North Dakota, Pennsylvania, Utah, and Colorado) have adopted no-fault insurance laws- also called personal injury protection or PIP.
Under Florida’s no-fault insurance statute, if you are hurt in an accident, your insurance automatically will pay 80% of your reasonable medical expenses related to injuries sustained in the accident and 60% of your lost earnings subject to the limits of the no-fault coverage and any applicable deductible (or up to the specified policy limit) regardless of who caused the accident.
If you are a family member, no-fault insurance also covers relatives in your household who do not have their own no-fault policy. Personal Injury Protection benefits can be paid by your policy even if family members are passengers in another person’s car or pedestrians when they are hurt. In the event that you cause damage to someone else’s property, no-fault insurance will pay up to a predetermined limit for damages your vehicle does to other people’s tangible property such as buildings, trees, road signs, etc, and will pay to repair or replace other vehicles, but only if the vehicles were properly parked.
In the instance you are killed in a car accident, no-fault pays survivor’s benefits, which is income which you would have provided to your family. These benefits are usually limited to a maximum amount per month for a set amount of time. Your policy will not pay benefits if you are the owner or registrant of an uninsured motor vehicle that was involved in an accident. Therefore, it is important that you have insurance coverage on all vehicles that you own.
Many people commonly believe that if they meet the requirements under Florida law then they have full coverage. As the descriptions of the different categories of automobile insurance below indicate, the Florida requirements constitute a very bare minimum and rarely do they adequately protect persons involved in automobile accidents. The statutory minimum alone does not constitute full coverage. Uninsured motorist coverage, essential coverage, including bodily injury coverage, and collision are not required by Florida law.
Limits to No-Fault Insurance
Drivers should be aware that no-fault insurance has several limitations. These are a few things which no-fault insurance generally does not pay for: repairs to your vehicle after an accident no matter whose fault it was; repairs to another person’s vehicle after an accident, no matter whose fault it was, unless the vehicle was properly parked; and costs for replacement of your vehicle if it was stolen.
In order to receive a guaranteed payment, you must give up some of your rights to sue the other driver involved in the accident. You may be allowed to sue for non-economic damages if the amount of these damages exceeds a specified tort threshold. Florida, Michigan, New Jersey, New York and Pennsylvania have verbal thresholds. The other eight states use a monetary threshold: Colorado, Hawaii, Kansas, Kentucky, Massachusetts, Minnesota, North Dakota and Utah. New Jersey, Pennsylvania and Kentucky have a “choice” no-fault law. In these three states, motorists may reject the lawsuit threshold and retain the right to sue for any auto-related injury.
If you wish to file a lawsuit against the at fault driver, Florida’s no-fault insurance law requires that you must show that you sustained a “serious” injury. Fla. Stat. § 627.737. Pain and suffering damages are generally only recoverable for serious injuries that involve sustained permanent injury, significant scarring or disfigurement, or death.
There are two categories of auto insurance – first-party coverage and third-party coverage. First-party coverage covers you and your property (such as medical expenses, damage to your vehicle and the insurance company’s duty to defend you in the event that you are sued as the result of your operation of a vehicle, etc.). Third-party coverage is for your responsibility to pay for injury caused to other people (and vice versa), whether in your vehicle, or another vehicle involved in the accident.
The coverage (and its exclusions) is explained in your insurance policy. In exchange for the payment of a premium, the insurance company promises to provide compensation in the event of certain occurrences. While adequately explaining all aspects of insurance coverage and laws would be far too time consuming, the following is a brief synopsis of the most typical coverage and issues.
Personal Injury Protection
In addition to liability insurance, Florida requires all drivers to have Personal Injury Protection (PIP) coverage. Fla. Stat. § 627.736. Personal injury coverage is not health insurance, and it is not designed to pay for your medical bills. What it is designed to do is offer a onetime settlement or payment for all of your damages. In Florida, your policy must cover eighty percent of all reasonable expenses for medically necessary medical, surgical, X-ray, dental, and rehabilitative services, including prosthetic devices, and medically necessary ambulance, hospital, and nursing services. Fla. Stat. § 627.736.
The personal injury insurance minimum required by law in Florida is ten thousand dollars for bodily injury or death of one person in any one accident. Fla. Stat. § 627.736. Lawsuits in Florida must be filed against the negligent driver and may not also name the insurance carrier as a defendant. In fact, the jury is not allowed to know that there is insurance coverage available on the defendant. If the jury renders a verdict in excess of the defendant’s liability policy limit, the defendant is then personally liable out of his or her own assets for the additional amount.
Bodily Injury Coverage
If your injury is caused by the negligence of a defendant, your attorney can file a claim under the bodily injury liability coverage of the negligent defendant’s insurance policy. Bodily injury liability coverage covers a driver’s legal liability for the injury or death that they, or any permitted user, may cause with their vehicle. When you are injured in a car accident and the person at fault is either the driver of the other vehicle or, if you are a passenger, the driver of the car in which you are riding, you may file a bodily injury claim with that driver’s insurance company. In most bodily injury liability policies, bodily injury includes sickness, disease, injury, or death arising from sickness, disease, or injury.
Medical Payments (Med-Pay) Coverage
When purchasing automobile insurance, you may elect to receive an optional type of coverage called medical payments (med-pay) coverage. Fla. Stat. § 627.736. Med-pay coverage pays accident-related medical expenses not covered by Personal Injury Protection. This coverage is available to the insured driver (the individual who holds the policy which includes med-pay coverage) and any passengers in the insured’s vehicle for injuries sustained, regardless of the fault of the driver. It is important to note that the insurance policy of the negligent party does not pay med-pay or PIP benefits to an injured plaintiff. These benefits are limited to the driver or passengers in the insured vehicle, regardless of fault. The plaintiff looks to his own insurance policy or the policy on the vehicle in which he was a passenger for med-pay or PIP benefits.
Collision Coverage
Collision coverage is a type of voluntary coverage you can purchase, which will cover the repair or replacement of your own vehicle after an accident, regardless of who is at fault. An innocent victim of an accident may present a claim for the property damage under his or her own collision coverage or under the negligent defendant’s property damage liability insurance coverage.
Your own collision coverage normally includes a deductible, while property damage liability insurance coverage does not. In an automobile accident case, after a claim has been paid under collision coverage, the insurance carrier who paid the claim may proceed against the property damage liability insurance carrier for the negligent defendant to recover the amount paid out. This process is called subrogation, and does not affect your recovery.
Uninsured and Underinsured Motorist Benefits
Uninsured/underinsured motorist benefits are another type of voluntary coverage you can purchase, and it is recommended that you add this type of coverage to your policy. This coverage protects you against a negligent defendant who either does not have liability insurance coverage or only has minimum coverage that is inadequate to fully compensate you for your injuries. If you are involved in an accident with an uninsured but negligent individual, your attorney would make a claim for you under your own uninsured motorist coverage. Your own insurance carrier would then have to pay any judgment which may be rendered, up to the limits of the policy which you purchased.
If the person who caused the accident has liability insurance, but the policy limit of his or her liability insurance is less than the uninsured motorist coverage of your policy, your attorney can make an additional claim under your own policy for what is called underinsured motorist benefits, in the event that your damages exceed the limits of the other party’s liability coverage. Uninsured/underinsured motorist claims can be a problematic area of law to practice, and the experience of an attorney familiar with these issues is important in order to obtain the maximum amount of recovery for you.
Wednesday, September 16, 2009
School Bus Accidents
School bus accidents are amongst the most heartbreaking of all motor vehicle accidents due in part to the unfortunate involvement of young children. As a result, substantial damages are often at issue in cases of this type, and forceful representation is required to bring all responsible parties to justice. In Florida, each district school board can be held liable for tort claims arising out of any incident or occurrence involving a school bus or other motor vehicle owned, or operated by the school board to transport persons. Fla. Stat. § 1006.24.
A school bus-related crash is defined as a crash which involves, either directly or indirectly, a school bus-type vehicle, or a vehicle functioning as a school bus, transporting children to or from school or school-related activities.
Since 1995, 170 school-age pedestrians (younger than 19) have died in school transportation-related crashes. Nearly two-thirds (65%) were killed by school buses, 5 percent by vehicles functioning as school buses, and 30 percent by other vehicles involved in the crashes. Nearly one-half (49%) of all school-age pedestrians killed in school transportation-related crashes were between the ages of 5 and 7.
Since 1995 there have been about 416,295 fatal traffic crashes. Of those, 0.33 percent (1,368) were classified as school transportation-related. Since 1995, 1,509 people have died in school transportation-related crashes an average of 137 fatalities per year. Most of the people who lost their lives in those crashes (70%) were occupants of other vehicles involved. Nonoccupants (pedestrians, bicyclists, etc.) accounted for 22 percent of the deaths, and occupants of school transportation vehicles accounted for 8 percent.
More school-age pedestrians are killed in the afternoon than in the morning, with 32 percent of the fatalities occurring in crashes between 3 and 4 p.m. Between 1995 and 2005, 97 crashes occurred in which at least one occupant of a school transportation vehicle died.
More than half of those crashes (55%) involved at least one other vehicle. In 52 percent of all crashes involving fatalities to occupants of a school transportation vehicle, the principal point of impact was the front of the vehicle. Since 1995, 6 drivers and 13 passengers have died in school bus vehicles providing transportation for purposes other than school or school-related activities (churches, civic organizations, etc.). In 1987, one such multi-vehicle crash resulted in the deaths of 27 occupants, including the driver.
A school bus-related crash is defined as a crash which involves, either directly or indirectly, a school bus-type vehicle, or a vehicle functioning as a school bus, transporting children to or from school or school-related activities.
Since 1995, 170 school-age pedestrians (younger than 19) have died in school transportation-related crashes. Nearly two-thirds (65%) were killed by school buses, 5 percent by vehicles functioning as school buses, and 30 percent by other vehicles involved in the crashes. Nearly one-half (49%) of all school-age pedestrians killed in school transportation-related crashes were between the ages of 5 and 7.
Since 1995 there have been about 416,295 fatal traffic crashes. Of those, 0.33 percent (1,368) were classified as school transportation-related. Since 1995, 1,509 people have died in school transportation-related crashes an average of 137 fatalities per year. Most of the people who lost their lives in those crashes (70%) were occupants of other vehicles involved. Nonoccupants (pedestrians, bicyclists, etc.) accounted for 22 percent of the deaths, and occupants of school transportation vehicles accounted for 8 percent.
More school-age pedestrians are killed in the afternoon than in the morning, with 32 percent of the fatalities occurring in crashes between 3 and 4 p.m. Between 1995 and 2005, 97 crashes occurred in which at least one occupant of a school transportation vehicle died.
More than half of those crashes (55%) involved at least one other vehicle. In 52 percent of all crashes involving fatalities to occupants of a school transportation vehicle, the principal point of impact was the front of the vehicle. Since 1995, 6 drivers and 13 passengers have died in school bus vehicles providing transportation for purposes other than school or school-related activities (churches, civic organizations, etc.). In 1987, one such multi-vehicle crash resulted in the deaths of 27 occupants, including the driver.
Passenger | Pedestrian Injuries
Passenger Injuries
If you’re a passenger who has sustained injuries in an automobile accident, you are entitled to receive compensation for your injuries. As a passenger, you may have a claim against both the driver of the vehicle in which you were riding as well as the drivers of any other vehicles (or any other negligent party) involved in the collision.
A passenger is generally not considered to be at fault or partially at fault in an auto accident unless he or she does something that specifically causes the accident such as distract the driver. If you have been injured as a passenger in a vehicle involved in a collision, an attorney can help you file a claim and get monetary compensation for your
injuries.
Pedestrian Injuries
According to the National Highway Traffic Safety Administration there were 4,881 pedestrian fatalities in 2005 of which 20 percent were pedestrians improperly crossing the street. Many thousands more were seriously injured.
In general, pedestrians have the right of way when traffic control signals are not in place or in operation. Fla. Stat. § 316.130. If a child is injured running out into the street, and if there is a school or playground nearby, the driver may have been aware that children were in the area. This can be used to show the driver wasn’t taking proper precautions to avoid the accident. In addition, it may be possible to show that the child wasn’t properly supervised or that adequate crossing assistance was not provided.
It may be difficult to determine who is negligent in cases where pedestrians are injured. There are many factors which must be considered: Were you paying attention to traffic when you crossed? Were you jaywalking or crossing in a designated crosswalk? Did the car run a red light? If possible, you should try to get witnesses who can verify your account of the accident.
A third party can also be responsible in pedestrian accidents. If a crossing signal or traffic light malfunctioned, it may be possible to hold the local government services responsible for failing to adequately maintain or repair the light.
Pedestrian Injury Data
In 2005 in the United States, 4,881 pedestrians died from traffic-related injuries and another 64,000 pedestrians sustained non-fatal injuries.
Pedestrian fatalities are the second-leading cause of motor vehicle-related deaths, following occupant fatalities. Pedestrian-related fatalities account for about 11% of all motor vehicle-related deaths.
On average, one pedestrian in the United States is killed in a traffic crash every 108 minutes.
Pedestrian deaths, expressed as a rate per 100,000 people, has decreased 13% from 1995 to 2005. Factors contributing to this decrease may include more and better sidewalks, pedestrian paths, playgrounds away from streets, one-way traffic flow, and restricted on-street parking. Some of the reduction is likely due to the decreasing amount of time Americans spend walking.
In 2005, 44% of pedestrian deaths occurred between 6:00 pm and midnight. Among children under 16 years old, 43% of the pedestrian fatalities in 1998 occurred between 3:00 and 7:00 pm.
Seventy-four percent of pedestrian deaths in 2005 occurred in urban areas. Case fatality rates, however, are higher in rural areas—for nearly all age groups. Researchers have suggested that these higher fatality rates may be due to higher driving speeds (greater impact during a crash), and less immediate access to emergency medical care.
Children are at risk for pedestrian injuries and fatalities. In 2005, children 15 years and younger accounted for 8% of all pedestrian fatalities and 23% of all pedestrians injured in traffic crashes. Among children between the ages of 5 and 9 who were killed in traffic crashes, 18% were pedestrians.
In 2005, adults 70 years and older comprised 9% of all pedestrians injured, yet they accounted for 16% of all pedestrian fatalities. The death rate for this group, 2.88 per 100,000 people, is the highest of any age group.
In 2005, the pedestrian fatality rate for males was more than twice that for females. Non-fatal injury rates for male pedestrians were also higher; the pedestrian injury rate, per 100,000 people, was 21 for males and 17 for females.
More pedestrian fatalities occurred on Fridays and Saturdays than on any other day of the week in 2005.
In 2005, 61% of pedestrian deaths among people 65 years and older occurred at an intersection, whereas only 10% of pedestrian deaths among children 4 years old and younger took place at an intersection.
Alcohol is a major factor in adult pedestrian deaths. In the total number of fatal pedestrian crashes, 11% of the drivers involved had a blood alcohol concentration (BAC) of .08 g/dL or higher.
In 44% of traffic crashes that resulted in a pedestrian fatality during 2005, either the driver or the pedestrian had a measurable blood alcohol level.
If you’re a passenger who has sustained injuries in an automobile accident, you are entitled to receive compensation for your injuries. As a passenger, you may have a claim against both the driver of the vehicle in which you were riding as well as the drivers of any other vehicles (or any other negligent party) involved in the collision.
A passenger is generally not considered to be at fault or partially at fault in an auto accident unless he or she does something that specifically causes the accident such as distract the driver. If you have been injured as a passenger in a vehicle involved in a collision, an attorney can help you file a claim and get monetary compensation for your
injuries.
Pedestrian Injuries
According to the National Highway Traffic Safety Administration there were 4,881 pedestrian fatalities in 2005 of which 20 percent were pedestrians improperly crossing the street. Many thousands more were seriously injured.
In general, pedestrians have the right of way when traffic control signals are not in place or in operation. Fla. Stat. § 316.130. If a child is injured running out into the street, and if there is a school or playground nearby, the driver may have been aware that children were in the area. This can be used to show the driver wasn’t taking proper precautions to avoid the accident. In addition, it may be possible to show that the child wasn’t properly supervised or that adequate crossing assistance was not provided.
It may be difficult to determine who is negligent in cases where pedestrians are injured. There are many factors which must be considered: Were you paying attention to traffic when you crossed? Were you jaywalking or crossing in a designated crosswalk? Did the car run a red light? If possible, you should try to get witnesses who can verify your account of the accident.
A third party can also be responsible in pedestrian accidents. If a crossing signal or traffic light malfunctioned, it may be possible to hold the local government services responsible for failing to adequately maintain or repair the light.
Pedestrian Injury Data
In 2005 in the United States, 4,881 pedestrians died from traffic-related injuries and another 64,000 pedestrians sustained non-fatal injuries.
Pedestrian fatalities are the second-leading cause of motor vehicle-related deaths, following occupant fatalities. Pedestrian-related fatalities account for about 11% of all motor vehicle-related deaths.
On average, one pedestrian in the United States is killed in a traffic crash every 108 minutes.
Pedestrian deaths, expressed as a rate per 100,000 people, has decreased 13% from 1995 to 2005. Factors contributing to this decrease may include more and better sidewalks, pedestrian paths, playgrounds away from streets, one-way traffic flow, and restricted on-street parking. Some of the reduction is likely due to the decreasing amount of time Americans spend walking.
In 2005, 44% of pedestrian deaths occurred between 6:00 pm and midnight. Among children under 16 years old, 43% of the pedestrian fatalities in 1998 occurred between 3:00 and 7:00 pm.
Seventy-four percent of pedestrian deaths in 2005 occurred in urban areas. Case fatality rates, however, are higher in rural areas—for nearly all age groups. Researchers have suggested that these higher fatality rates may be due to higher driving speeds (greater impact during a crash), and less immediate access to emergency medical care.
Children are at risk for pedestrian injuries and fatalities. In 2005, children 15 years and younger accounted for 8% of all pedestrian fatalities and 23% of all pedestrians injured in traffic crashes. Among children between the ages of 5 and 9 who were killed in traffic crashes, 18% were pedestrians.
In 2005, adults 70 years and older comprised 9% of all pedestrians injured, yet they accounted for 16% of all pedestrian fatalities. The death rate for this group, 2.88 per 100,000 people, is the highest of any age group.
In 2005, the pedestrian fatality rate for males was more than twice that for females. Non-fatal injury rates for male pedestrians were also higher; the pedestrian injury rate, per 100,000 people, was 21 for males and 17 for females.
More pedestrian fatalities occurred on Fridays and Saturdays than on any other day of the week in 2005.
In 2005, 61% of pedestrian deaths among people 65 years and older occurred at an intersection, whereas only 10% of pedestrian deaths among children 4 years old and younger took place at an intersection.
Alcohol is a major factor in adult pedestrian deaths. In the total number of fatal pedestrian crashes, 11% of the drivers involved had a blood alcohol concentration (BAC) of .08 g/dL or higher.
In 44% of traffic crashes that resulted in a pedestrian fatality during 2005, either the driver or the pedestrian had a measurable blood alcohol level.
Medical Malpractice - Damages
There are two types of damages available in a negligence medical malpractice case, compensatory damages and punitive damages.
Compensatory damages
Compensatory damages are derived from the word “compensate,” meaning “to make up for” or “to make whole.” Generally, these damages can be broken up into two sub-categories actual damages and general damages. Actual damages seek to reimburse a plaintiff for out-of-pocket expenses incurred, or financial losses sustained.
Actual damages typically include:
- Medical and hospitalization bills incurred to treat your injuries
- Wages lost due to work missed while you recuperate
- Costs of household or nursing help during recovery, including costs of wheelchair or crutches required
As noted, injured victims can also sue for general damages in addition to actual damages. General damages include the things that can’t be precisely documented in dollars spent, including:
- Value of medical expenses you are likely to incur in the future
- Value of wages you are likely to lose in the future
- Disfigurement resulting from injuries
- Loss of consortium (benefits of a relationship)
- Loss of opportunity
- Permanency of injury and resulting pain and suffering
- Pain and suffering endured due to injuries and any subsequent mental anguish
- Punitive damages
In addition to compensatory damages, punitive damages may be awarded in certain cases. Punitive damages are designed to punish the defendant for gross incompetence, and are not based on actual injuries sustained. Punitive damages are awarded when a behavior is so egregious that a civil court penalty is warranted in order to deter the defendant from committing the same act again in the future.
Here is an example: Based on a true story, if a doctor delivers a woman’s baby and then makes a small incision on her torso signifying that he was responsible for her children, the woman should expect significant punitive damages to be awarded against the doctor.
If a doctor promises a particular result and then fails to obtain that result, the patient may have a successful case against the doctor. In these types of cases, it may be possible to recover damages from the doctor for the loss of the value of the successful treatment.
Damages are also available in cases where the plaintiff is able to prove that he or she was not provided with proper informed consent. The damages in such cases are different than in a typical negligence medical malpractice claim. If the doctor attempts to treat the patient without his or her consent, the doctor may be liable for the wrongful touching of the patient, regardless of whether the treatment was successful.
Compensatory damages
Compensatory damages are derived from the word “compensate,” meaning “to make up for” or “to make whole.” Generally, these damages can be broken up into two sub-categories actual damages and general damages. Actual damages seek to reimburse a plaintiff for out-of-pocket expenses incurred, or financial losses sustained.
Actual damages typically include:
- Medical and hospitalization bills incurred to treat your injuries
- Wages lost due to work missed while you recuperate
- Costs of household or nursing help during recovery, including costs of wheelchair or crutches required
As noted, injured victims can also sue for general damages in addition to actual damages. General damages include the things that can’t be precisely documented in dollars spent, including:
- Value of medical expenses you are likely to incur in the future
- Value of wages you are likely to lose in the future
- Disfigurement resulting from injuries
- Loss of consortium (benefits of a relationship)
- Loss of opportunity
- Permanency of injury and resulting pain and suffering
- Pain and suffering endured due to injuries and any subsequent mental anguish
- Punitive damages
In addition to compensatory damages, punitive damages may be awarded in certain cases. Punitive damages are designed to punish the defendant for gross incompetence, and are not based on actual injuries sustained. Punitive damages are awarded when a behavior is so egregious that a civil court penalty is warranted in order to deter the defendant from committing the same act again in the future.
Here is an example: Based on a true story, if a doctor delivers a woman’s baby and then makes a small incision on her torso signifying that he was responsible for her children, the woman should expect significant punitive damages to be awarded against the doctor.
If a doctor promises a particular result and then fails to obtain that result, the patient may have a successful case against the doctor. In these types of cases, it may be possible to recover damages from the doctor for the loss of the value of the successful treatment.
Damages are also available in cases where the plaintiff is able to prove that he or she was not provided with proper informed consent. The damages in such cases are different than in a typical negligence medical malpractice claim. If the doctor attempts to treat the patient without his or her consent, the doctor may be liable for the wrongful touching of the patient, regardless of whether the treatment was successful.
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