Palm Coast Injury Law Blog

Killer Whale Takes Trainer for a lethal Dive

Phil Chanfrau — Thu, 25 Feb 2010 16:45:53 -0500

There was a story about Tilikum, a captive orca at Sea World in Orlando. It apparently grabbed onto an experienced trainer and dove with her to the bottom of the tank where it drowned the trainer yesterday. It reminded me of the story about the pet chimpanzee which went bezerk last year and ripped the hands and face off a woman who stopped by to visit. No one really knows why wild animals react the way they do, and their behavior is unpredictable. A couple of years ago in Las Vegas a seemingly "friendly" seven year old tiger attacked Roy Horn during a show. That case was closed without ever finding out what caused the attack. I predict the Killer whale investigation by OSHA will end the same way: no explanation.

When elephants attack in the wild, those types of things are not big news, nor should they be. Elephants in the wild are expected to attack if someone threatens their baby.

The law imposes strict liability on the owner of wild animals. This means that the owner is absolutely responsible, without question, for the acts of the wild animal. A judge made the law after a series of cases in England where wild circus animals escaped and wrecked havoc on the public. This is a great example of what is called the "common law" since it did not have legislative origins. The surving spouse of Dawn Brancheau will be entitled to about $150,000 in workers comp death benefits since the accident happened at work.

One thing OSHA will be looking into is evidence of prior claims. Has this type of thing ever happened before? If so, what is the significance of the prior claims in this case? We know from early news reports that Tilikum (which is a nickname for native indian villages in the Seattle area) has had two other incidents over the years. There is speculation that the Orca was stressed out by years of captivity in a small tank, or was suffering from elvated testosterone levels. It has fathered at least seven other orcas over the years.

What is interesting to me is the fact that our legal system has precedent for all sorts of crazy things that goes back hundreds of years. Who would have thought that?

Toyota Cars, Recalls and Lobbyists

Phil Chanfrau — Fri, 12 Feb 2010 09:30:22 -0500

There is an interesting story here about how Toyota hired former staff members from NHTSA the federal branch of government charged with Highway safety. They then turned around and used their influence and knowledge to bury or limit investigations into known problems with Toyota's cars. The report says that two former NHTSA agency staffers helped bury four open investigations into accelerators which were sticking on some Toyota 2002-2003 Camrys and Solaras.

If you look at the NHTSA website it is now offering a Consumer Advisory for Toyota owners.

This information was discovered as a result of a Michigan lawsuit. Once again the legal system has shown its ability to get to the truth, and expose glaring problems with enforcement when left to the bureaucrats. I am reminded of a similar problem which was "uncovered" regarding the lack of responsibility in regards to the safety practices of regional air carriers like Colgan Air . Families of those killed in the crash of Flight 3407 are now going after the airline for damages.

Families of those killed due to bad Toyotas will soon be following in their tracks. I wonder how many Toyotas have crashed because of bad brakes and accelerators?

The unfortunate truth about these types of disclosures is that the loss of 27 Billion in stock value to investors at Toyota because of its defective products, bad brakes, sticking accelerators, will be the catalyst to product improvement, and not the loss of lives and mangled bodies. What about the loss in vehicle market value to owners? Once again the same old theme arises in Corporate America: Profit over People.

In my opinion a Product Recall like the recent ones involving Toyota vehicles is as close to finding the "smoking gun" as possible. It is very strong evidence by the manufacturer that its product is defective for some reason. It is what is called in law an "admission against interest" and is like a legal confession. Here is a good website for recent recall info of all kinds.

No wonder our government is not trusted. Trying to keep big corporations from hiring government employees to grease the skids is not working. Big Business is too powerful and until the people elect representatives willing to stop this, it will keep getting worse.

PS. Since writing the article above, criminal actions have been started against TOYOTA and a rash of lawsuits have been filed. See the update here.

Motorcycles, Passenger claims and Red Lights

Phil Chanfrau — Wed, 10 Feb 2010 11:30:01 -0500

Daytona Bike Week is just around the corner. Here is some more timely and hopefully helpful info for passengers during bike week.

When a passenger on a motorcycle is injured, usually in a left turn type accident, he has two possible claims: one is against the driver/operator of the motorcycle and the other is against the other driver who turned in front of the oncoming motorcycle. These types of accidents frequently occur at a traffic light when the motorcycle is in the outside lane, and is obscured by other vehicles from view by the turning driver .

If it is a one vehicle crash, then the passenger has a claim against the driver. There was a tragic story about a woman who was left for dead on the road by a motorcycle driver. Her estate would have a claim against him. The driver was sent to prison for five years.

The classic example of this type of accident is discussed in Zimmerman v Langlais. There, the minor passenger on a motorcycle was injured when the motorcycle he was a passenger on was going 50 mph in the outside lane and went through a "yellow" light at an intersection. The accident happened at night. The car driver was waiting under the light to turn left and could not see the oncoming motorcycle because it was obscured by cars in the inside lane. The car driver turned left into the motorcycle when the light turned red. The jury found the left turning driver not at fault.

The Zimmerman case is a good example of the rule that evidence of a traffic violation (running a red light) is only evidence of negligence, not negligence "per se." So, jury could exonerate the left turning driver even though she ran a light and caused injuries. As so often happens in left turn cases, the entire blame was placed on the motorcyclist by the jury.

Insurance companies know these types of accident often happen. They sometimes exclude any claims by passengers against the driver/operator and/or the insurance company. The exclusion is not against the public policy and is therefor legitimate under Florida law.Yakelwicz v. Barnes.

My recommendation: ride with a safe driver who has plenty of insurance. If he has none, be sure to get uninsured motorists coverage. It protects you if your driver has none and is at fault. I discussed these issues in my previous blogs here and here.

Medicare and Settlements: The Schip Extension Act

Phil Chanfrau — Tue, 09 Feb 2010 11:09:50 -0500

Historically when a settlement involving a client with medicare occured, the plaintiff's attorney would negotiate the amount of the payback due medicare. It took months of haggling with a bureaucrat about whether the bills paid by Medicare were related to the injury settlement. The process may have recently become much more complex and harder to navigate..

Since January 1, 2010 a new law has gone into effect. The law is intended to make sure Medicare is the payor of last resort, and that medicare gets paid off the top, if it has been billed for accident related medicals. The new reporting requirements, passed as part of the Medicare, Medicaid and SCHIP Extension Act of 2007, require insurance companies to provide information on settlements, including the name, address and phone number of the plaintiff and his or her attorney.

There are a lot of questions to be answered by this legislation. What about future medicare payments for treatment of accident related injuries? What about the client who was not a medicare patient when the settlement occured, but will be entering Medicare later on? There is a good overview of this issue in the Wisconsin law Journal here. In the interview, plaintiff's attorney Robert Janssen is quoted as saying:

“The prudent course of action is to keep Medicare’s interest protected by creating a bank account for accident related, future medical bills that would typically be paid by Medicare,” said Janssen. “This would be the case even though no formal Medicare set-aside is in place.”

I think plaintiffs attorneys representing medicare clients and those who are likely to start getting Medicare benefits before the case is settled ought to provide the insurance adjusters with a heads up as soon as possible so they can timely notify Medicare of the pending action. Or, Plaintiff's counsel can do it just to make sure it is done.

We sure don't want to get a case settled and then belatedly find out Medicare has not been notified yet. Based on this article, the client's rights to future medicare may be cut off unless this is handled properly, and that would be a nightmare for them and the attorney who handled their claim.

Keeping Stuff out of Trials: Dirty Tricks

Phil Chanfrau — Mon, 08 Feb 2010 14:46:01 -0500

There is a lot of stuff that doesn't come up at a well tried case. The court depends on trial attorneys to give it a heads up on such things, and knows there is a lot of dirty laundry out there. As a matter of fact everyone has some. It's not surprising then, that the opposition will hang it out to dry in front of the jury if it can. How does an attorney prevent the dirty laundry from coming up at trial? By getting the Court to enter an Order granting a Motion in Limine. The motion needs to be tailor made to each case.

Trial attorneys use a standard motion which has lots of categories of things they don't want the Defense to bring up during trial. Here is a list of a few things that are typical in a motion in limine I don't want the Jury to hear about:

That there has been a settlement with a prior defendant. This is the classic empty chair problem. The Court should prohibit any mention or suggestion of such settlements, or the receipt of such funds by Plaintiff, and should prohibit any evidence of same, pursuant to Section 768.041(3), Florida Statutes. See Leisure Group, Inc. v. Wiliams, 351 So. 2d 374 (Fla. 2d DCA 1977), Madden v. Rodovich, 367 So. 2d 1083 (Fla. 4th DCA 1979), Black v. Montgomery Elevator Co., 581 So. 2d 624 (Fla. 5th DCA 1991), Samick Corp. v. Jackson, 645 So. 2d 1095 (4th DCA 1994).
Receipt of Welfare, Social Security or Disability Benefits. This is the one that makes jurors think the Plaintiff is a deadbeat if he is on welfare. Florida law prohibits the admission into evidence of the fact that a party is receiving Social Security Disability benefits, Winston Towers 100 Association, Inc. v. DeCarlo, 481 So. 2d 1261 (Fla. 3d DCA 1986).
Medicare Benefits. This one is self explanatory. Since Plaintiff has through his payroll deductions earned Medicare benefits, they are not collateral sources and Plaintiff's right to such should not be mentioned in the presence of the jury. Winston Towers One Hundred Assn. v. De Carlo, 481 So. 2d 1261 (Fla. 3rd DCA 1986).
Worker's Compensation. Jurors do not want to allow the plaintiff to double dip. Since worker's comp companies get a lot of their money back after a verdict, it is improper to allow statements of payments received from Worker's Compensation as a collateral source into evidence, as such compensation should be excluded as prejudicial and in violation of Florida Statute §672.7372(3), Kreitz v. Thomas, 422 So. 2d 1051 (4 DCA Fla. 1982).
Prior Claims/Lawsuits. This one argues the plaintiff is suit crazy. If the defense attempts to show the prior claims in order to argue Plaintiff is likely to sue every time he gets the opportunity, i.e. that he is a litigious person, that is wholly improper as an impermissible attack on the plaintiff's character. The law will not allow one to argue the exercise of a right is evidence of a wrong. Zabner v. Howard Johnsons, 227 So. 2d 543 (Fla. 4th DCA 1969), Colvin v. Williams, 564 So. 2d 1249 (Fla. 4th DCA 1990).
Traffic Tickets. As I wrote about in a previous blog, the Defendant and witnesses called on their behalf or their attorneys of record, should be ordered not to disclose or mention in the presence of the jury, any evidence as to the issuance of traffic citations or lack thereof. Elsass v. Hankey, 662 So. 2d 392 (Fla. 5th DCA 1995).
Collateral Sources. Sometimes insurance companies pay medical bills and get a lien on the recovery if there is one. If the jury hears that insurance paid, they will usually refuse to give money for the bills because they do not want to allow double recovery. But if the plaintiff has to pay the insurance back, it is not double recovery. So an order should be entered so that when the Plaintiff has received collateral sources of insurance benefits as that term is defined by F.S. §768.76(2)(a) for which insurers have retained the right of subrogation. the jury is not told of the lien and payment.
Secondary Gain. The opinion of an ordinary doctor that the Plaintiff has "law suit" pain, or is faking his pain in order to get a settlement should not be allowed. In Mills v. Red Wing Carriers, Inc., 127 So.2d 453, the Florida Second District said:

"The opinion of an expert should be excluded where the facts testified to are of a kind that do not require any special knowledge or experience in order to form a conclusion, or are of such character that they may be presumed to be within the common experience of all men moving in ordinary walks of life." Mills, page 456.

Having a trial attorney to stand by you at trial is one thing. Having one that knows how to keep out irrelevant and damaging evidence is priceless.

The "I" word: Insurance and Jury Trials

Phil Chanfrau — Fri, 05 Feb 2010 16:30:39 -0500

I recently wrote a blog about the “T” word: Tickets, here. Today’s blog is about another word lawyers cannot use in front of the jury: Insurance. More specifically, that the defendant has Insurance. There is no automatic mistrial, but the courts often grant one. See Hollenbeck v Hooks.

All injury and death cases start by filing a lawsuit against a defendant. The lawyer names the defendant, but the defendant’s insurance company is never joined in the suit. Why not? When the Judge starts a trial he asks the jury have your heard of this case: and then he names the parties. For example: "This is the case of Robert Smith vs Sam Jones and Allstate Insurance Company." By naming an Insurance company the Jurors knew Sam Jones had insurance. The insurance companies were convinced in 1976 that verdicts were inflated when Jurors knew there was insurance so the insurance industry lobbied the Florida legislature to make some changes.

Ever since 1976 in Florida a lawyer cannot join the defendant’s insurance company. The result: jurors are not aware that a powerful insurance company is sitting in the room controlling the defense all the way from jury selection to final verdict, including the most important choice of all: whether to settle or not. So if you are called for jury duty, be aware of this information. Very few defendants have assets so in almost every Tort case, you can be sure there is insurance behind the defendant. A plaintiffs attorney will not take a case unless he can collect his fees and costs.

Thus the “I” word: Insurance cannot be mentioned in the presence of the Jury or it will likely result in a mistrial, and the case has to be started over again without a “tainted” jury.

Historically there was a period of time when lawyers sued the defendant and combined his insurance company. This was called “joinder.” In 1976 the Florida legislature enacted the non-joinder statute. Ever since then an insurance company cannot be sued as a co-defendant. FS 627.4136. Even though the insurance company is not a party, the legislature granted insurance carriers the unique right to recover court costs just as thought they were parties. FS 627.4136(2). And, even though carriers control all aspects of the defense, they do not have liability under the offer of judgment statute for a large verdict, which could have been avoided. In other words, carriers get their cake and can eat it too. This results in two sets of rules, one for insurance companies and one for all others, and guess who wins? The insurance companies, of course. Here is what one Florida appellate court said about this heads we win, tails you lose situation:

The inequity is that when a plaintiff, such as Barnes, makes a successful offer of judgment, its recovery of attorney's fees is limited to the defendant. The insurance carrier thus suffers no risk as to the award of attorney's fees.This imbalance has been the comment of at least one appellate court judge, but nothing has changed.

In years past, plaintiffs had opposed having to pay the nonparty insurance carrier's costs under the offer of judgment statute. In holding the payment of costs advanced by one other than the named party to be appropriate, the Florida Supreme Court stated: “Failure to allow a cost award to a prevailing defendant who is insured, because of the fact of insurance coverage alone, gives the plaintiff and/or the plaintiff's insurance carrier, an undeserved windfall.” Aspen v. Bayless, 564 So.2d 1081, 1082, 1083 (Fla.1990).

That was almost 40 years ago, and the Florida legislature has not addressed the inequity yet. The legislators should be ashamed of themselves.

Worker's Comp Death claims: two claims in one?

Phil Chanfrau — Thu, 04 Feb 2010 14:36:53 -0500

When a worker is injured by another negligent person he can sometimes make two claims: one is a negligence claim and the other is a claim for his worker's compensation benefits. If the negligent person works for the same boss as the injured person there is only one claim, for worker's compensation. So the question is: was the negligent person a fellow employee. If not a fellow employee he probably has two claims. Clearly, an employee injured by a materialman delivering materials to the job, or a materialman delivering materials who is injured due to a dangerous condition at the job can make a claim. See Adams Homes of Northwest Florida v Cranfill, 7 So.3rd 611 (Fla. 5th DCA 2009.) If an injured worker was delivering pizzas for Pizza Hut and gets smacked down by a drunk driver, he can sue the drunk driver. The pizza driver cannot recovery twice for the same claim, so what happens?

he gets to file a claim against the drunk driver AND
a claim against his worker's comp. The worker's comp company get's a lien against his case.
If there are $25,000 in medical bills and wage losses advanced by his worker's comp carrier, then a share of the total bills paid by worker's compensation comes out of his settlement with the insurance company for the drunk driver. This right of reimbursement helps keep down the high cost of worker's comp.

There is a misunderstanding about what you can get if there are two claims, so let me explain this way. Assume the losses are as follows:

wage losses
medical bills
pain and suffering
loss of enjoyment of life
mental anguish

Of the losses listed only items 1 and 2 are covered by worker's compensation. If it is a death case, then the survivor's get loss of support, and their pain and suffering for the loss of the loved one, plus funeral and medical bills. Worker's comp pays a max of $150,000 for a death claim.

Yesterday there was a story about a tragic accident at the site of the new Epic movie theater under construction in Palm Coast. The news reports indicate the worker who died was a welder working for a welding company out of Palatka who fell 25 feet to his death. Details were not provided. The accident is probably still under investigation by OSHA. As an example, if the deceased in that accident was negligently killed due to the fault of another trade, such as the scaffolding company or the crane operator, the deceased's family would have a wrongful death claim against them. If the accident happened because the welder was not provided with safety gear to prevent his fall, then his employer would be at fault but IMMUNE from a lawsuit if it provides worker's comp benefits.

Death benefits are part of Worker's comp. It pays $150,000 in death benefits plus up to $7,500 for funeral bills. There is a brief description about this here. That is a small price to pay for the life of a 40 year old worker. A death claim could result in a much larger recovery for his surviving family members. Because the $150,000 gets doled out over a long period of time, and is not a part of his estate, it cannot be levied against or garnished by any debtors the deceased may have had. So a bank could not go after the proceeds from the worker's comp payout to payoff a mortgage debt.

The lesson here is that there are extra legal rights in certain types of cases, including worker's comp cases. It pays to know your rights. It pays to know an experienced lawyer.

Understanding Texting and Negligence

Phil Chanfrau — Thu, 04 Feb 2010 10:36:22 -0500

Cell phones are easy to turn off and on. They should be inaccessible when we drive.

Distractions cause accidents no matter where they occur. They can and do happen in hospitals, cruise ships, airports and airplanes, the workplace, grocery stores, baseball parks, golf courses, I-95 or at home. Distractions are just the latest example of our human frailties and cannot be eliminated by passing a few laws. If you aren’t paying attention and push a grocery cart into a customer while you are on the cell phone that’s negligence. Same thing if you run your car into someone while you are on the cell phone.

Lots of things happen in cars: Some people eat, drink, talk, put on makeup, read books or maps, listen to MP3s, radios, watch DVDs, and talk and text with a cell phone. When we drive with passengers, the number of sources of possible distractions goes up. Drivers are tempted to turn and look at their faces, laugh, and carry on. We have all seen drivers putting on makeup, reading books, or shaving while driving on the interstate. What’s the first thing you do when you get behind the wheel: buckle up or turn on the radio, put on your makeup, drink your coffee? No problemo if we are passengers. The burden is on the driver since he/she controls the vehicle. We forbid driver’s to drink and drive . Should we also forbid drivers to use a cell phone and drive? Maybe. Depends on the circumstances . The Driver must take steps to avoid distractions because a few lost seconds can change a life.

Legislators are now coping with a new major source of distraction: cell phones. They go everywhere people are. The phone rings or a text message arrives no matter what we are doing or where we are, unless the phone is left behind or turned off. No one wants to do that. How would you like it if a surgeon answered his cell phone during surgery? Is a legislative rule banning texting during surgery necessary? Duh, I don’t think so.

So, cell phones are a major new source of distraction. That cannot be denied. There has been a tremendous amount of publicity concerning Texting and driving. The Florida legislature recently banned drivers of school buses and trucks from texting based on claims that texting was just as likely to cause an accident while driving as is alcohol impairment. Other states have followed too. Others think all cell phones should be banned from being used unless they are being used hands free. These behaviors were not part of our world when cars were invented, and we are as a society now facing a new legal issue which was not around a generation ago.

I am skeptical that any legislature can, even with huge fines, change human behavior. So, the answer is simple: Come on People: Control your impulse to talk and drive. Turn that cell phone off until the drive is over.

Deficiency Judgments, Foreclosures and Homesteads

Phil Chanfrau — Fri, 29 Jan 2010 14:20:30 -0500

I recently published an article concerning the MERS Foreclosure defense.As a follow-up, this article will discuss the situation where a lender has successfully foreclosed and the borrower is now concerned about a possible deficiency judgment. As you know a deficiency occurs when the collateral (a vacant lot, condo, home) is sold at the Clerk's sale and the sales price is not high enough to pay in full the balance due to the lender.

Keep in mind the deficiency issue is one of collectibility. The bank can sue the borrower for the deficiency but will have trouble collecting on it unless there are assets. If there are no assets, its like the Bob Dylan song: "If you ain't got nothing, you got nothing to lose." Homestead is exempt from a forced sale unless there is a mortgage on it to the lender.

So here are some common questions concerning deficiency judgments.

For how long after the foreclosure sale does the Bank have a right to decide to go after a deficiency? Florida cases say that depends. If the foreclosure sale judgment reserves jurisdiction allowing the court to decide whether to grant a deficiency, then the Bank has one year to come back and ask for the Deficiency Judgment. If the bank does not do so, the debtor can ask for the case to be dismissed for lack of prosecution. If the foreclosure sale judgment does not reserve jurisdiction the Bank has 5 years from the date of the judgment to start a new case for a deficiency judgment.
How does homestead property matter? Depends. If the homestead property is a new home and the bank has no lien on it then it is exempt under Florida's homestead protection. So even if the bank has an uncollected deficieny judgment then it is not subject to a forced sale. The bank can sue the debtor whether he lives in a homestead or not, but the Bank cannot collect against the homestead unless it has a mortgage. The easiest way to undertand this is unless the Debtor has waived his right of homestead (which is what a morgage does) then he has homestead protection from debt collection as to that asset.
What does a Bankruptcy do? This is a complicated issue which I will leave to a bankruptcy specialist like Scott Spradley in Flagler Beach. If the debtor files bankruptcy is wipes out all debts inculding deficiency judgments.

Besides the issue of deficiency judgments and collection, there are issues about asset protection, short sales, deeds in lieu of foreclosure, and the tax consequences of a short sale. An interesting fact I read lately was that between 2000 and 2007 the size of the national mortgage debt on homes in the USA went to 10.5 trillion dollars from $3.5 trillion. So far, since 2007, the mortgage debt has only gone down to $10.2 trillion. Somehow we have got to get rid of about $7 trillion in mortgage debt before the housing crisis will be behind us.

A La Carte legal Fees in Contingency Cases?

Phil Chanfrau — Wed, 27 Jan 2010 15:13:48 -0500

For those who need some legal help but cannot afford to hire a lawyer to represent them, it might be worth while to think about “Doing it Yourself.” Or maybe part of it yourself. There was an story about this in the New York Times recently. This sort of idea may be helpful in many different types of cases, such as divorce or landlord-tenant disputes. Since I specialize in Personal Injury, this blog will discuss the needs of a client who wants a lawyer to help on part of the case, for example getting it settled. I call this a la carte legal representation.

The Florida Bar Association allows attorneys to ethically handle legal matters on a limited scope basis. See the Rule 4-1.2 (c).

How would it work?

“Limited scope representation” allows lawyers to unbundle their services and take only part of the case.
Lay persons know they have a tremendous disadvantage due to huge knowledge gaps between themselves and insurance adjusters. Would it be worth 10% of the settlement for legal representation from an experienced personal injury attorney to be sure you did not settle too cheap? I think so.
The lawyer can conduct a conference with the client and agree to do limited work for a much lower fee than if he handled the entire case. The client can collect copies of all the medical records, bills, photographs and accident report. He can provide a summary of what he has been through. He can assemble them for the attorney, thus saving himself fees for substantial overhead, time and expense.
More than ninety percent of all cases settle for less than $25,000 and in some personal injury law firms the lawyer’s paralegal handles the case anyway.

Makes sense to me. The quality of the work would be as high as if the attorney handled the whole case.

Here are my conditions to accepting work on a limited ala carte basis:

Lawyer is retained solely to handle settlement negotiations for client. No further services are included.
Fee to be ____% of settlement, including costs.
Settlement to be paid to lawyers trust account.
Lawyer has no duty to pay off any liens or issue LOP.
Client must provide lawyer with copies of all insurance policy declaration pages, name and address of all adjusters, copies of all medical records and bills relevant to the alleged injuries, copies of statements, accident reports, photos, wage loss documentation, and a history of his prior medical treatment.
Client will sign documents authorizing settlement by lawyer within an agreed settlement range after discussing same with lawyer. Client agrees to accept agreed amount in full and complete settlement and to release all responsible parties.
Lawyer will not file a lawsuit or prepare any letters or correspondence to anyone except insurance adjusters.
For an additional ____% lawyer will attend mediation.
The client represents that his Case is not in litigation and client will not file suit without first providing 30 days notice to lawyer. Lawyer has no duties toward client if case is filed by client.
If client discharges lawyer and the case later settles, lawyer will be paid out of recovery for agreed percentage.
Lawyer will provide client with conference time. Lawyer will not start settlement negotiations until client provides items in 5 above.
If additional work is requested by Client, the new Scope of Work must be agreed to in writing by Client and lawyer.

Can the Insurance company Cancel me?

Phil Chanfrau — Wed, 27 Jan 2010 14:47:50 -0500

Cancellation of an insurance policy is serious business. It makes it much harder to get new coverage. Increasing premiums just because of a single claim is also serious. Both cancellations/nonrenewals and premium increases are governed by Florida laws.

FS 626.9541 contains a list of unfair claims practices which includes:

3 a. Imposing or requesting an additional premium for a policy of motor vehicle liability, personal injury protection, medical payment, or collision insurance or any combination thereof or refusing to renew the policy solely because the insured was involved in a motor vehicle accident unless the insurer's file contains information from which the insurer in good faith determines that the insured was substantially at fault in the accident.

b. An insurer which imposes and collects such a surcharge or which refuses to renew such policy shall, in conjunction with the notice of premium due or notice of nonrenewal, notify the named insured that he or she is entitled to reimbursement of such amount or renewal of the policy under the conditions listed below and will subsequently reimburse him or her or renew the policy, if the named insured demonstrates that the operator involved in the accident was:

(I) Lawfully parked;

(II) Reimbursed by, or on behalf of, a person responsible for the accident or has a judgment against such person;

(III) Struck in the rear by another vehicle headed in the same direction and was not convicted of a moving traffic violation in connection with the accident;

(IV) Hit by a “hit-and-run” driver, if the accident was reported to the proper authorities within 24 hours after discovering the accident;

(V) Not convicted of a moving traffic violation in connection with the accident, but the operator of the other automobile involved in such accident was convicted of a moving traffic violation;

(VI) Finally adjudicated not to be liable by a court of competent jurisdiction;

(VII) In receipt of a traffic citation which was dismissed or nolle prossed; or

(VIII) Not at fault as evidenced by a written statement from the insured establishing facts demonstrating lack of fault which are not rebutted by information in the insurer's file from which the insurer in good faith determines that the insured was substantially at fault.

c. In addition to the other provisions of this subparagraph, an insurer may not fail to renew a policy if the insured has had only one accident in which he or she was at fault within the current 3-year period. However, an insurer may nonrenew a policy for reasons other than accidents in accordance with s. 627.728. This subparagraph does not prohibit nonrenewal of a policy under which the insured has had three or more accidents, regardless of fault, during the most recent 3-year period.

Thus, the insured has major league protections against an insurance company which tries to cancel or non-renew, or which increases its premiums after an accident which the insured was an innocent party to. Violations like these open the insurance company up to possible punitve damages and attorneys fees.

Motorcycles and The Knowledge Gap

Phil Chanfrau — Wed, 27 Jan 2010 10:10:47 -0500

Daytona Bike week is around the corner. Its an exciting time for bikers coming into the area. Most will leave with great memories. Experience tells us some will leave with most of their body parts, and some will not leave at all. Some will lose friends and have damages to their motorcycles. NHTSA estimates the chances of a fatality on a motorcycle are 30 times higher than in a car. I recall one biker who had suffered a traumatic castration. You should have seen the look on his face when he learned there was only $10,000 of insurance.

Out of curiosity I called a Florida agent who offers biker insurance through six major carriers. Based on what she said, I think there is a knowledge gap about UM (Uninsured or underinsured motorists) coverage. This whole area of UM and rejections was discussed in another Blog.

Here are some of the highlights of what I found out:

The agent could not explain the legal differences between UM and HMO/Group coverage
Bikers think they can skip getting UM when they have a major medical or HMO policy to cover their medical bills

If the agent doesn't know, how is a Biker supposed to make an informed decision to buy the UM or not?

What is the big deal: Here is an example to illustrate the difference between UM and group coverage. Assume a car or another Biker runs into you or your passenger and there are serious injuries as follows:

loss of leg and resulting quality of life for the rest of your life
medical and hospital bills
pain and suffering for life
loss of income for life

UM pays for all the above.

Your HMO/major medical policy only pays for item #2,

If the at fault driver had no coverage he may lose his license, and owe you money he can't pay.

I recommend every Biker buy as much UM coverage as they can afford. You never can tell when a driver without insurance will run into you. When almost 50% of the motorists are driving without liability insurance, chances are great you will need every drop of insurance.

Foreseeability and Damages: The Magic Circle

Phil Chanfrau — Tue, 26 Jan 2010 10:35:15 -0500

When we were little kids our moms taught us some important lessons. She did not know it but some of the lessons she was teaching us about included the basics of foreseeability: look both ways before crossing the street, don't run while carrying sharp objects like knives or scissors, don't play with fire. All of these lessons included the basics of foreseeability. In each instance we were being warned bad things could happen if we were not careful under the circumstances. We were taught to foresee, or look ahead. As we mature we learn more adult lessons about life and human nature until as a "reasonable man" we are expected to know and follow most of life's little lessons.

There is some confusion and maybe misconception about the law of damages and foreseeability. Once the Plaintiff has proven the defendant's conduct was a foreseeable cause of the injury, the Plaintiff is entitled to a verdict for all of his damages which were caused by the negligence, even if they were entirely unforeseeable. In an RSD case, for example, the development of searing pain caused by this horrible condition may not be foreseeable, but the defendant must pay for it if he caused it. I think some attorneys need to refresh themselves on this rule. See Silva v Stein, 527 So. 2d 943 (Fla. 3rd DCA 1988). The case is an extremely instructive and important one clearing up the apples and oranges difference between foreseeablity and liability, and foreseeablity and damages.

The following is an excerpt from Professors Prosser & Keeton in their 1984 book on the Law of Torts, pg 291-292:

"It is as if a magic circle were drawn about the person, and one who breaks it, even by so much as a cut on the finger, becomes liable for all resulting harm to the person, although it may be death. The defendant is held liable when the defendant's negligence operates upon a concealed physical condition, such as pregnancy, or a latent disease, or susceptibility to disease, to produce consequences which the defendant could not reasonably anticipate. The defendant is held liable for unusual results of personal injuries which are regarded as unforeseeable, such as tuberculosis, paralysis, pneumonia, heart or kidney disease, blood poisoning, cancer, or the loss of hair from fright. The defendant of course is liable only for the extent to which the defendant's conduct has resulted in an aggravation of the pre-existing condition, and not for the condition as it was; but as to the aggravation, foreseeability is not a factor. One of the illustrations which runs through the English cases is that of the plaintiff with the ‘eggshell skull,’ who suffers death where a normal person would have had only a bump on the head; and an obviously related rule is that the defendant who kills another must take the chances, as to damages for the death, that the other has a large income, although the defendant has no reason to expect it."

This rule comes up in final arguments to the jury in cases where one would not expect the consequences of the defendant's negligence to be as great as they turned out. The jury needs a lawyer to explain causation in the context of the injury which the defense is going to argue is being blown out of proportion to the reality. I have an interesting case I am working on now where my client was rear-ended and suffered a heart attack at the scene. Other cases I've handled included clients who developed RSD, have had repeat cervical fusions, and various types of mental injuries such as PTSD.

The lesson is that if the defendant caused the injuries it is no excuse or defense to say that they could not have been anticipated. You are not expected to be as tough as Arnold Schwarznegger.

Motorcycle Cases: Rear Enders and Left Turns

Phil Chanfrau — Wed, 20 Jan 2010 17:02:59 -0500

Having had the privilege of representing Bikers (and going to trial for many of them) who were seriously injured while riding their motorcycles, there are a couple of things that all motorists need to be reminded about. First, motorcycles are not as easy to see as larger vehicles and second, injuries involving them, are always extremely serious, and include brain damages due to head injuries, death, paralysis and amputations. A minor case involves severe road burns and/or scarring. I once got a call from an Alabama man whose beautiful young daughter lost a leg while on the back of her friend's motorcycle. She had promised to stay off his bike when she was allowed to come to Daytona...Because of the severity of injuries, most cases settle with little legal effort for the "policy limits." This means the at fault driver had so little insurance it was not even a fight to get. Bikers ought to consider getting Uninsured Motorists coverage for as large a limit as possible if they continue to ride.

There are two major accident types which cause these injuries:

Drivers who make a sudden left turn into and across the path of the Biker, and
drivers who rear end the bikers. Rarely do you hear of a biker who turned into the path of an oncoming vehicle. My biker friends are sober "as a Judge" when going for a ride, have gone to motorcycle school and leave plenty of room to maneuver when on the road.

In my experience, the biggest challenge to getting a fair trial for a Biker is during Jury selection. In my opinion jurors are still of the opinion that Bikers are devil may care, reckless and thrill seekers, even willing to take life and limb risks to ride their bikes. People who own motorcycles are usually knocked off by the defense using their peremptory challenges. To prejudiced or ignorant jurors hearing a motorcycle injury case, it makes no difference that the bikers are on the way to work at 7:00 in the morning, or run over from behind by a drunk driver.

We live in a part of Florida where Bike week is celebrated twice a year, once in March and one in October. The number of Bikers who plan annual trips to attend Daytona is well over 100,000. They spend hundreds of millions of dollars locally and deserve our respect. Many are professional doctors, lawyers, accountants, and own and operate successful businesses out of state. It galls me to see ads by attorneys who patronize bikers and advertise proudly picture their motorcycles as a means to say "We are Bikers too. Hire us." They remind me of the Kodiak bears in Alaska trying to snare salmon during the annual salmon runs.

Rear end collisions and presumptions of law

Phil Chanfrau — Thu, 14 Jan 2010 17:09:03 -0500

As I wrote in an earlier blog, there are certain legal presumptions which arise when the rear car runs into a lead car. But those "presumptions" sometimes evaporate into thin air if the rear driver has a good reason to explain the collision. This blog explains how that disappearing presumption works.

In the case of Klipper v GEICO, the evidence came out at trial that the rear driver had a good reason for rear ending the lead car: the lead car had become disabled on the interstate late at night, and the driver of the lead car had not

attempted to move it out of the way onto a nearby median even though there was time,
turned on its flashers,
raised the hood, or
otherwise signalled oncoming traffic

So what happened to the presumption of negligence? The trial court should have said nothing about it and just let the jury decide who was at fault. Instead, the judge instructed the jury that the rear driver had the burden to prove she was not negligent. This was wrong, and resulted in a reversal. Once evidence is produced which tends to show the real fact is not as presumed, the presumption dissipates.

Why: Because once evidence was presented giving some good reasons why the jury could reasonably find the lead driver was also negligent, the presumption was "rebutted." It vanished from the case and was no more than an inference which the court should not have commented on either way. In fact, both drivers had something to point their fingers at.

What is a "Settlement?"

Phil Chanfrau — Mon, 21 Dec 2009 08:19:03 -0500

You hear people discussing their settlements, but no one really tells you what that is. Wouldn't it be helpful to know what a Settlement really means? Here you go:

A settlement is the term used to wrap up in a legal way the end of some dispute. It is an agreement between two or more disputing persons to finalize the dispute. Usually the main terms of the settlement are agreed upon in writing. The written agreement is a new contract which can be enforced by the court. If the case is in Court, there is a popular method of coming to an agreed settlement called a Mediation. A Mediation is a formal settlement conference where all sides to the dispute discuss possible terms to settle the disputes. Although the Court can force attendance at a Mediation conference, the Court cannot force the disputing parties to settle. That is a voluntary thing.

Settlements are often complicated due to the need to payoff subrogation liens. These are claims against the settlement by health insurance companies, worker's compensation companies or medicaid or medicare for money they paid for doctor's bills and wages. These liens have to be paid out of the settlement. Insurance companies will ASK for 100% payback of all money they have paid. Most of the time they only get a fraction of their money. If the lien is an ERISA, or Medicaid lien, then 100% of the money may have to be paid to the ERISA carrier. An attorney who is on the ball can discuss ERISA and Medicaid issues with you so you can understand their claim.

In a personal injury case, for example, the person making the claim (plaintiff) agrees to sign off on a Release, in exchange for an agreed amount of money, paid at the closing of the deal. Once the Release is signed, and the money changes hands, the Plaintiff's claims are by law extinguished, cancelled, unenforceable in a Court of law. If a lawsuit has been filed with a Court, the attorneys send a written notice to the Court advising the case is over with, and the Court then closes the file. Usually the terms of a settlement say whether each side will bear the fees and court costs or whether one side will payoff the other side's fees and costs.

Claims for minors, and those who have a legal disability due to mental illness, for example, cannot be settled until the Court officially approves the terms of the settlement. If the Court has any questions, it can appoint experts to offer the court advice on whether the settlement is in the best interests of the child or other incompetent person. Even though no suit has been filed, minors claims for large amounts of money require court approval. In cases where that has not happened a "friendly suit" is filed. The court then goes through the terms of the settlement, and if it approves the tentative settlement, the minor's legal representative blessed with Court approval, signs the Release, the Defendant's pay the settlement amount and the case is dismissed.

At trial none of these liens are supposed to be discussed in the presence of the Jury. Rules of Evidence prohibit discussion of these liens or settlement offers with the jury. For example, if a lien is $50,000, then the Plaintiff's attorney should ask the Jury for a large enough Verdict to be sure there is money to pay off these liens. If the Jury learns about pending liens it results in a mistrial, and the case has to be submitted to a new jury. Because of the high cost of mistrials and other reasons, settlements are a good way to limit the uncertainty of litigation.

What do I have to lose?

Phil Chanfrau — Mon, 07 Dec 2009 10:00:57 -0500

Occasionally I am asked by clients and prospective clients about the costs and expenses of hiring a lawyer to handle their cases for injuries. It seems like this question is coming up more often now than it ever used to. It's a good question and a timely one too. Clients have a right to know in advance what it might cost them, especially in today's troubled economy. Also, clients are scared of frivolous cases and do not want to be accused of a frivolous lawsuit. No one likes sticker shock, and personal injury clients are no exception. Florida Supreme court rules control Florida lawyer's contingency fee contracts. Unlike a straight hourly rate fee contract, or a lump sum contract where fees are paid on a negotiated hourly rate or flat rate basis, clients who hire lawyers on a contingency fee only pay FEES if the contingency (winning the case) occurs.

So let me discuss fees and costs this way:

Before suit: there is no significant Adverse Consequence to the client financially. The client is not in any jeopardy of having to pay court costs, a final judgment, go to court, give a deposition, submit to a medical exam, produce confidential records, or in any other way submit to an unwanted intrusion or expense. A claim is not frivolous until a jury decides against it. So there is no specter of criticism for such claims. If you don't make a claim you don't get any money and there is no risk.
After suit: Our work is usually divided into two stages:  presuit and suit.  During the presuit stage (out of court) we investigate each case, and then often try with the client’s permission to settle the case before filing suit. The second stage (in court) is the part which has “adverse consequences” if a suit is lost.  To avoid any risk clients often decide to settle without filing a suit.  Under our documents, the client has the last say about whether to accept or decline any settlement offers by the at fault party, and the client controls the decision to sue or not sue.  Our fees go up after suit is filed, and although some of the court costs are recoverable, not all expenses we incur must be reimbursed by the defense.  For example, our travel expenses are not subject to reimbursement.
            The “adverse consequences” of losing a suit are as follows:

1.         The verdict may be lower than the defendant’s highest offer.  At trial there may be no recovery, or the net recovery after fees and court costs and other expenses may be less than any highest final presuit offer.

            For example if the highest presuit offer to you by the insurance company is $100,000 and you rejected it, the final verdict after trial might only be $80,000.

2.         There may be a cost judgment against the client, including substantial defense attorney’s fees.  Florida has adopted a law that mandates assessment of attorney’s fees against a losing party if the verdict is substantially (more than 25%) different than the last offer before trial.

            For example, if you were offered a settlement of $100,000 and decided to reject the offer, and a verdict for $75,000 or less was returned, then the Court would assess the defense fees against you. Those would come out of the $75,000 so your net before paying your own attorney's fees would be a lot less than if you accepted $100,000. Defense costs may run into thousands of dollars or more.  If the verdict was $0, then the Court would assess defendant’s attorney’s fees against you and the result would be a cost judgment (debt) owed by you to the opposing party.  If not paid then the opposing party could take legal steps to collect the debt by garnishment or levy and sale of assets. Note: both you and your own attorney suffer the loss if you decline a good offer and get a low verdict.
Now, generally what are the fees and costs when you hire a lawyer? For a PI lawyer like me, none until the case is won. No fees and no costs until the case is won.

Here is what ALL contingency fee contracts must do:

They must be written: no handshake deals allowed.
The contract must state the percentages due depending on whether there was a trial, settlment or an appeal.
The contract must state whether costs will be deducted and if so, whether before or after the fee is calculated. In some cases the costs can run into thousands of dollars so this is a big deal.
Upon completion of the case, the client gets a detailed breakdown of all costs and fees with an explanation how they were determined.
The client and lawyer must both sign the Fee contract.
A fee cannot be shared between lawyers without the consent of the Client in writing.
A boilerplate disclosure must be signed by the client in which he agrees he read a "Statement of Client's Rights" and received a copy and understands those rights.

Some key provisions in the Statement of Clients Rights say:

You, the client, have the right to know in advance how you will need to pay the expenses and legal fees at the end of the case...you have the right to know periodically how much money your lawyer has spent on your behalf. You also have the right to decide how much is to be spent to prepare a case.

How much can a lawyer charge without the court's permission? After suit but before an answer is filed as follows:
1/3rd up to $1 Million
30% of any recovery betrween $1 million and $2 million
20% of any recovery over $2 million

After the case becomes contested fees at different amounts can be charged. The fee structure has been approved by the Courts for years, and almost every PI lawyer charges fees as allowed.

Fees in excess of these structures are potentially illegal.

Rule 4-1.5 prohibits illegal fees. Fees which are too high, or which were generated by illegal advertising are illegal. Contingent fee contracts are not allowed in any domestic relations matter or criminal cases. The vast majority of cases involving contingency fees are cases involving some type of bodily injury, death, medical malpractice or the like.

When Should I retain a Lawyer?

Phil Chanfrau — Sun, 22 Nov 2009 12:38:55 -0500

One of the questions that often comes up is when is the best time to hire a lawyer after a crash.

What are the pros and cons of getting a lawyer? In no particular order here are my thoughts:

PROS:

1. Adjusters cannot call you once you have hired an attorney. So, you do not run the risk of making a statement which will come back to haunt you later on. If you have already made a statement, your attorney can get a copy for you. The single biggest problem with having already given a statement is that any inconsistencies, contradictions or omissions will be magnified to make it look like you and your attorney are changing your story. For example, if you denied the need for medical treatment at the scene, that may be used to persuade the jury that you weren't hurt by the accident, so why are you making a claim?

2. Physical Evidence can be preserved. This includes visible things like photographs of the vehicles, crush damage, skid marks, the scene, bruises, scars, and photos during the healing process. Skid or brake marks fade away over time with traffic and weather. Gouge marks left in the pavement, and damage to guardrails are fixed. Cars which are totaled are sold for scrap and crushed, so they can no longer be photographed. Seat belts which malfunctioned can no longer be tested. Shredded tires are vital to proving defects if any. Sometimes 911 calls and dispatch records are only kept 30 days then they are recorded over, so any recordings of voices disappear into the netherland.

3. Key witnesses can be located before they move away, their memories fade and they give statements to insurance companies without having a chance to review and refresh their recollections. Insurance companies are not required to share those statements with you. Some witnesses do not want to get dragged into a case and refuse to cooperate after talking with the adjusters.

4. Under Florida law, you have the absolute right to choose your doctor. A lawyer can help steer you away from an unhelpful insurance oriented doctor. Some doctors are more open to the reality of having to give court testimony than others. Some doctors are more inclined to think their patients are malingering or faking injuries to get a big settlement.

5. A lawyer can help explain and make a claim for your PIP benefits. Although PIP benefits are supposedly easy to get and the forms are a cinch, PIP companies deny benefits, or cut off benefits improperly. A lawyer can assure your rights to medical and wage losses are paid.

CONS:

1. If you hire a lawyer he may charge a retainer to cover his time and expenses. If your case is meritless, you may have wasted your cash. This risk can be avoided by hiring a lawyer using a Contingency Fee contract. Costs and fees can be avoided. See my earlier Blog.

2. You lose control over your case. Your lawyer, not you, deals with the insurance company, decides what expenses if any are needed, and gives advice to you about your case. Ultimately you may fire your lawyer but if you do so without justification, you will owe him something for his expenses and time.

3. You cannot settle the case on your own and avoid a legal fee. He will have a lien on your case which the insurance company will want to honor, or they will have to pay twice.

All in all I recommend hiring an attorney within a couple of weeks after an accident. TV ads often promote law firms with an 800 nnumber and lawyers who can talk to you 24/7. Ads like these create a sense of urgency. There is no need to hire a lawyer within hours after a crash. Time should be taken to make a wise choice, check references, check reputations, and ask around.

The "T" word: Traffic Tickets,Trials and Special Jury Instructions

Phil Chanfrau — Mon, 16 Nov 2009 15:52:57 -0500

I will occasionally discuss the law of Evidence on some things that often create major trial problems for the plaintiffs. A mistrial always favors the defense because they get a postponement. Today's discussion is based on a rule of Evidence. Sometimes rules of law lead to unusual and bizarre results. This one reminds me of a Rule which led Mr. Bumble, a Charles Dicken's character in Oliver Twist to declare: "If the law supposes that -- then the law is a Ass." Bumble was talking about therule of law in Merry Olde England which assumed a man controlled, and was therefore responsible for his wife's actions.

During trials involving traffic crashes there is one thing which is so explosive that the mere mention of it by either side in the presence of the jury will cause a mistrial. When a traffic accident case goes to trial, the jury always wants to know and expects someone to put on evidence : who got the "TICKET?"

In Florida good trial lawyers do not make a proffer of any evidence on Traffic tickets. They intentionally do not say anything about a Ticket being issued during voir dire or opening statements and their witnesses are taught not to mention Tickets in front of the jury. When the rule gets violated, the judge should stop the trial and a new jury should be selected. Requesting a cautionary instruction to the jury is not a good idea and may waive the error. Check this out in a recent case on this point: White v Consolidated Freightways of Delaware, 766 So. 2d 1228 (Fla. 1st DCA 2000). Here is an excerpt from the appellate court decision which revealed a very subtle and reversible defense argument. The driver of an 18 wheeler, Mr. Dickson, rear ended a bunch of cars. The FHP officer did not give him a ticket. Here is an excerpt from the improper Defense opening statement which resulted in a reversal and a new trial:

"You'll also hear the testimony of Investigating Highway Patrolman C.C. Barclay who looked at the physical evidence, he talked to everyone who was there; I think the evidence will show that no one claimed that Mr. Dickson had anything to do with this accident at the scene of the accident.

. . . .

After he was there for a while and had told the police officer what he saw, then he was allowed to proceed with his trip, and Mr. Dickson will tell you that the first time he heard that anybody was claiming that he had anything to do with this accident was long after, months after it occurred."

(emphasis supplied)

It is not possible to tell if this was an honest oversight of the T-word rule by Defense counsel or a gamble that a motion for mistrial would not be made.

Lawyers know just like everyone else that a Ticket is symbolic of fault. If admitted it would tell the jury who in the opinion of the traffic cop caused the crash. Sometimes the cop witnessed the crash, but more likely got there a few minutes later and after asking around either decided to issue a ticket or not. His official act is seen as an objective third party point of view gathered promptly at the scene from witnesses whose recall is still fresh. Also, the court will instruct the jury that a violation of a traffic statute is possible evidence of negligence.

I had the misfortune of representing a client on a motorcycle who was seriously injured by an oncoming car. After the trial I got an irate call from the foreman: How come you did not put on evidence that the Defendant got a Ticket? I looked it up and you did not put on any evidence. If you had, we would have returned our verdict for your client." I was crushed, and so was he. I told him I could not legally put on evidence and he had based his verdict on speculation, since there was no proof of a ticket, and held the Defendant Not Guilty.

Model jury instructions do not mention traffic tickets. In fairly obtuse wording the Florida Model court instruction 2.1 merely says to the jury they should not "speculate on any matters outside the evidence." How does a juror know what that means? What does it mean? To a layman, a Ticket is inside the evidence and so it is ok to want information about it, and if it is not part of the trial, they think about it. I suggest the model instruction is defective because it is vague, and I have tried cases where a mistrial occurred because someone mentioned a Ticket. How many more were verdicts entered based on speculation? Who knows?

Generally the failure to testify in a civil action results in an inference that the testimony would have been unfavorable. There is a limitation on that rule that the “unfavorable inference which may be drawn from the failure of a party to testify is not warranted when there has been a sufficient explanation for such absence or failure to testify." Plaintiffs are caught in a no man's land about this because they cannot explain why they have not put on any evidence about the ticket.

Rule Regulating Florida Bar 4-3.4(e) prohibits lawyers from arguing facts that are not in evidence. Rule 4-3.5(a) prohibits lawyers from seeking to influence jurors except as permitted by law or the rules of court.

Sometimes it is a necessary to request a special instruction when the Model jury instructions are vague or simply do not cover the issue. A special instruction was requested (and then abandoned) in one case where a citation issue came up at trial here.

Many of the standard instructions were crafted before jurors were allowed to read instructions and the law was less complicated. There is a great discussion on using special instructions in Ryder TRS, Inc. v Hirsch, 900 So. 2d 608 (Fla. 4th DCA 2005). So long as they do not confuse or mislead the jury, the instruction is within the discretion of the trial court. Trouble is many Judges don't like to give special instructions even if they are not confusing or misleading.I think the time has come in Florida to request a new special jury instruction in cases where a jury might reasonably expect evidence on the issue of whether a ticket has been issued. Here is my stab at a special jury instruction in these type of cases:

"You have been instructed not to speculate on any matters "outside the evidence." That includes speculation about whether a traffic ticket or citation was or was not issued to any party in this case."

Trial Lawyer's Dilemma: How much to ask for?

Phil Chanfrau — Thu, 12 Nov 2009 16:51:37 -0500

During the last two weeks here in Flagler county the story of a horrific truck crash, totally avoidable unfolded before a local jury. The jury listened spellbound to the story of loving couple who moved here to live out their golden years together. That came to a sudden end in the blink of an eye when an overworked, angry, truck driver went barreling through a stop sign at 55 m.p.h and obliterated their van. She was killed and he was airlifted by helicopter to a nearby hospital. Sadly he never even got to say goodby it happened so fast. As the Plaintiff said, "It is hard to beleive your life can change so fast."

Their case was reported by Frank Fernandez of the Daytona News-Journal. On November 11, 2009 the jury heard the opinion of an almost unbelievable "expert" accident reconstructionist from south Florida. It was his opinion that the truck driver was a "victim" because Flagler county had paved over a few rumble strips. He felt the fact that there were several signs warning of the dangerous intersection was not good enough. Mr. Fernandez wrote about it and there were numerous comments posted before final arguments started today. This type of defense argument had to inflame the jury. In my opinion it should result in a higher than usual damages award. It was very risky defense to try and pull over a quick one on the jury.

There were other aggravating circumstances:

the driver was on the road in excess of the maximum number of allowable hours,
the sod company for whom he worked had no idea of his lousy driving or employment record, because they did not pay $10 to get it,
he refused to cooperate with a mandatory DOT drug test required because of the fatality,
the defendants refused to accept responsibility,
the driver was overworked and tired, and
His company had no system to monitor his hours so did not know whether he was driving too much.

More than 20 comments by readers who followed the trial in Fernandez's column were available online first thing this morning. The overwhelming majority thought the accident reconstruction expert was a joke and implored the jury to ignore his testimony. I don't know whether the Plaintiff's very fine trial lawyers Steve Pajcic and Tad Griffin of Jacksonville were aware of their comments when they prepared for final summation. Mr. Pajcic made the final argument. He asked for almost $10 million in damages, which was in his opinion fair given all the circumstances. I agree and hope the jury agreed with him too. I thought it was worth more. There was a lot of evidence to support the request.

Knowing how much to ask the Jury for is a delicate, tough and lonely decision for any plaintiff's trial lawyer, no matter how skilled, and experienced he is. If he asks for too little, the jury award will not be adequate. Too much and the jury will be insulted. The venue should and must be considered too. In a place like Flagler county, jurors may feel a lawyer is asking for too much, whereas under the same facts in south Florida, another jury may easily feel at home with a large damage award.

The "comments" from readers of Mr. Fernandez column on this case might be a good indicator of what the jury will do with the damage award in this case. We'll know the results soon.

*******

P.S. Late in the day on November 12, 2009 the Jury returned a Verdict for $5.1 million according to the latest column by Frank Fernandez.