South Florida Injury Attorney Blog

Florida Supreme Court Rules on Conflict Between Hospital Liens and Insurance Coverage in a Car Accident Case: Shands Teaching Hospital v. Mercury Insurance

Thu, 25 Oct 2012 16:29:36 -0500

After a woman received an insurance settlement for injuries she sustained in a car accident, a dispute arose between the insurance company and the hospital that treated her over payment of the hospital’s lien. In many personal injury cases, receipt of a settlement or judgment is far from the end of the case. Medical providers and insurers may have claims to all or part of a settlement or judgment amount, and they sometimes fight amongst themselves for how to split a limited amount of money. In Shands Teaching Hospital v. Mercury Insurance, an insurance company asked the Florida Supreme Court to rule on the constitutionality of laws allowing private hospitals to impose primary liens on injury settlements. The court found the state law to be unconstitutional, but upheld the county ordinance.

The case originated with a claim for personal injuries by a woman injured in a car accident. The woman sought treatment at Shands Teaching Hospital in Gainesville, Florida, and received care valued at $38,418.20. A law enacted by the Florida Legislature known as the Alachua County Lien Law (the “Lien Law”), and an ordinance passed by the county known as the Alachua County Lien Ordinance (the “Ordinance”), enabled the hospital to perfect a lien against any potential settlements or judgments that the woman might receive as a result of the accident.

The driver who struck the woman had an auto insurance policy through Mercury Insurance Company of Florida that provided $10,000 in bodily injury coverage and $10,000 in Personal Injury Protection (PIP). Mercury settled for $10,000 in exchange for her signed release. The release did not include Shands, which had already perfected its lien. Shands sent Mercury a copy of its lien, and Mercury sent it $10,000, representing the remaining amount available under the policy. Alleging that Mercury had impaired its lien, Shands sued Mercury for the remaining lien amount, $28,418.20.

Contaminated Medication Believed to Be Cause of National Fungal Meningitis Outbreak, Including Over Twenty Florida Cases

Tue, 23 Oct 2012 16:53:38 -0500

Federal and state officials believe that a contaminated medication from a Massachusetts pharmacy is responsible for an outbreak of fungal meningitis that has killed at least twenty-four people and sickened more than three hundred. The pharmacy has ceased operations and issued a recall of the medication, and lawsuits against it have already begun. In some cases, victims are suing their health care providers along with the pharmacy in an interesting blend of products liability and medical malpractice theories.

The Centers for Disease Control and Prevention (CDC) has reportedly identified an infectious fungal species, Exserohilum rostratum, in multiple victims. This species can infect the spinal cord, causing fungal meningitis. Unlike the bacterial or viral varieties of meningitis, the fungal kind is not contagious between people. It spreads by direct contact with an infected surface or substance, such as soil, or through direct introduction to the bloodstream, such as through an injection. Symptoms often begin with a sore, stiff neck, and patients can develop headaches, nausea and vomiting, fever, confusion, and photophobia. In some cases, an infection can result in long-term injury or death.

As of October 24, 2012, the CDC and the U.S. Food and Drug Administration (FDA) had received reports of 328 cases of fungal meningitis, including twenty-four fatalities, in eighteen states. Florida has twenty-two reported cases, with three deaths. Vials of the injectable drug methylprednisolone acetate appear to be the source of the infection. The drug is a steroid-based anti-inflammatory prescribed for the treatment of back pain. The vials originated from the New England Compounding Center (NECC) in Framingham, Massachusetts, according to health officials.

Florida Appellate Court Rules on Apportionment of Fault in Construction Injury Lawsuit

Thu, 18 Oct 2012 16:23:39 -0500

A cement truck struck and injured a flagman just outside a construction site. When the flagman sued the driver and the subcontractor that employed him, a battle began over the apportionment of fault among the plaintiff, the general contractor, and various subcontractors. The trial court ruled that the defendant subcontractor was not entitled to an apportionment of fault, as its contract appeared to make it solely responsible for worker safety. The Fourth District Court of Appeals disagreed in Continental Florida Materials, Inc. v. Kusherman, reversing the trial court’s ruling and remanding the case so the court could apportion fault among the various contractors.

The accident occurred when a concrete truck hit a flagman while driving in reverse, knocking him to the ground and running over his legs. The construction foreman, who was employed by the general contractor, had instructed the truck driver to exit the construction site, which the driver had to do in reverse. The foreman was not formally responsible for directing traffic within the site, but the general contractor was responsible for controlling street traffic around the site. The plaintiff was the only flagman directing traffic at the time, and he claimed that he was turned away from the truck and did not hear a backup indicator. By the time he saw the truck, the plaintiff claimed it was three to four feet away and he did not have time to avoid being hit.

Car Crashes Along I-75 in Rainy Conditions Near Sarasota Damage Almost Fifty Vehicles

Tue, 16 Oct 2012 20:37:36 -0500

A series of automobile accidents along Interstate 75 involved about forty-seven vehicles and injured more than fifty people. No fatalities were reported, but the crashes caused extensive damage and forced the closure of the highway for hours. Rainy weather and low visibility reportedly played a major role in the accidents. The state of Florida currently faces multiple lawsuits arising from another series of crashes on a different stretch of I-75 in January, also allegedly resulting from weather conditions.

The Sarasota Herald-Tribune reports that the accidents began occurring around 3:00 p.m. on Friday, October 5, 2012, in the southbound lanes of I-75 and the University Parkway overpass along the county line between Sarasota and Manatee Counties. Heavy rain conditions caused significantly reduced visibility. A crash involving at least eight vehicles occurred on the overpass, injuring at least ten people. Additional accidents happened on the highway below. The precise sequence of events may never be known, but at least two semi trailers were involved, one of which leaked fertilizer onto the road. A jackknifing trailer on the highway caused a series of crashes as cars tried to avoid the wreckage.

In all, forty-seven cars and other vehicles were damaged. The wreckage stretched for about half a mile from the overpass, and people remained stranded on the highway for hours. About fifty-four people were injured, with two airlifted to a trauma center, thirty-two people taken by ambulance to hospitals, and about twenty people receiving treatment at the scene. None of the injuries were fatal or life-threatening, a fact that a spokesperson for the Sarasota County fire department called “miraculous.” Both she and a lieutenant with the Florida Highway Patrol (FHP) said it was the largest automobile accident either of them had ever seen.

Supreme Court Finds that Federal Law Preempts State Asbestos Lawsuit: Kurns v. Railroad Friction Products Corp.

Thu, 11 Oct 2012 17:35:45 -0500

A federal statute regulating locomotive safety preempts a state products liability and wrongful death lawsuit, according to the U.S. Supreme Court. A former railroad worker, and later his estate, sued multiple companies, alleging that exposure to asbestos in their products while he was a railroad employee caused his cancer. In Kurns v. Railroad Friction Products Corp., 132 S. Ct. 1261 (2012), the Supreme Court affirmed lower court judgments dismissing the lawsuit due to federal preemption.

George Corson, the decedent, worked for nearly three decades as a machinist and welder for the Chicago, Milwaukee, St. Paul & Pacific Railroad. He worked in locomotive repair, installing brakeshoes; and in locomotive maintenance, removing boiler insulation. He ceased employment with the railroad in 1974, and received a diagnosis of malignant mesothelioma in 2005. He and his wife filed a lawsuit in Pennsylvania state court in 2007 naming fifty-nine defendants, including Railroad Friction Products Corporation (RFPC) and Viad Corp. The lawsuit alleged that RFPC distributed products containing asbestos, and that Viad succeeded a company that manufactured and distributed products containing asbestos. The plaintiffs asserted causes of action for defective design and failure to warn of danger. Corson died after filing suit, and the court substituted his executor, Gloria Kurns, as a plaintiff.

The defendants removed the case to the federal district court for the Eastern District of Pennsylvania. That court granted their motion for summary judgment based on the argument that the Locomotive Inspection Act (LIA), 49 U.S.C. § 20701 et seq., preempted state claims for damages. The statute, enacted in 1911, requires “railroad carriers” to maintain locomotive equipment in safe working order. 49 U.S.C. § 20701(1). The Supreme Court held that the LIA preempts state claims for injuries by both railroad passengers and rail workers in Napier v. Atlantic Coast Line Railroad Co., 272 U.S. 605 (1926). The Third Circuit Court of Appeals affirmed the district court’s ruling, and the plaintiffs appealed.

Pediatricians Warn of Risk of Serious Injury to Children from Recreational Trampoline Use

Tue, 09 Oct 2012 15:21:11 -0500

Trampolines are a common feature in the backyards of homes with children across the country. According to the American Academy of Pediatrics (AAP), however, they pose a significant risk of injury to children and teens, including traumatic brain injuries and spinal fractures. Estimates of the total number of injuries caused by trampoline-related accidents every year extend into the hundreds of thousands. The trampoline was not originally intended for recreational use, but rather to train athletes and pilots. The AAP therefore advises against the recreational use of trampolines, especially in a home environment.

A competitive gymnast named George Nissen patented the trampoline in 1945 as a “tumbling device.” He intended to use it to train gymnasts and acrobats, and he expanded its use to include training of military pilots. Once manufacturers learned how to produce trampolines that could be broken down, shipped, and reassembled, the recreational trampoline was born. The AAP’s Council on Sports Medicine and Fitness published a study on trampoline safety among children and teens in the October 2012 issue of the AAP’s journal, Pediatrics. It estimates that nearly 100,000 injuries resulted from trampoline use in 2009, with about 3,100 hospitalizations and deaths.

The most common injuries resulting from trampoline use, according to the AAP, occur in the lower extremities. These account for one-third to half of all trampoline-related injuries, and largely involve sprains or fractures of the ankle. Injury to the cervical spine is a common result of trampoline accidents, caused when a trampoline user lands incorrectly or falls off the trampoline entirely. Between ten and seventeen percent of trampoline-related injuries consist of head and neck injuries, many of which resulted in some degree of physical or cognitive impairment. The AAP states that 0.5% of all trampoline accidents result in permanent neurological impairment.

Fatal Florida Parasailing Accident Prompts Calls for Formal Safety Standards

Thu, 04 Oct 2012 17:31:49 -0500

A Connecticut woman on vacation in Pompano Beach, Florida died in a parasailing accident in August. Her harness allegedly failed, causing her to fall about two hundred feet to the water. The accident prompted an investigation by state and federal authorities, which is still underway. An organization that advocates for parasailing safety is calling for regulations related to the activity’s safety. Few regulations at the federal, state, or local levels address the many safety concerns surrounding the activity, which can be popular among beach vacationers in Florida.

Parasailing involves one or more people towed by a boat or other vehicle while harnessed to a parasail wing that resembles a parachute. As the vehicle moves forward, the parasailer is lifted into the air by the parasail. The parasailer has little to no control over his or her own movement while in the air. A sufficiently powerful vehicle can enable two or more people to parasail in tandem.

During the afternoon of Wednesday, August 15, 2012, a husband and wife were parasailing in a side-by-side harness, towed by a motorboat. The woman’s harness reportedly broke while they were between 150 and 200 feet in the air. The boat captain had to allow the man to descend before retrieving his wife from the water. She was pronounced dead at Broward Health North later that day, with blunt trauma and asphyxiation listed as the causes of death.

The Miami Herald reported on the captain of the boat, who has a valid captain’s license from the U.S. Coast Guard (USCG). The USCG is investigating the matter with the Florida Fish and Wildlife Conservation Commission. The National Transportation Safety Board (NTSB) also joined the investigation, making this the first investigation of a parasailing accident at such a high level of government. The investigation is reviewing both the equipment itself and the possibility of operator error. It remains unknown, therefore, whether defective equipment or negligence contributed to the accident.

South Florida Has Some of the Worst Drivers in the Nation, According to Insurance Company Survey

Tue, 02 Oct 2012 18:38:46 -0500

Allstate Insurance Company published its eighth annual report on “America’s Best Drivers” this summer. The report ranks two hundred American cities based on the frequency with which drivers have auto collisions and the overall likelihood of accidents. It includes four cities in south Florida, and none of them receive a high ranking. Other Florida cities rank higher on the list, but for the most part, not much higher. This is largely due to population and traffic density in large metropolitan areas like Miami and Tampa, which can lead to more frequent car collisions. The study, while not necessarily a representative sample of all drivers in south Florida or the rest of the country, can still provide useful guidance to understand the risks of car accidents in the area.

Actuarial data, based on claims for car accidents made to Allstate, formed the basis of the report. Allstate is one of the largest providers of car insurance in the country, but by its own estimate it only accounts for ten percent of auto policies. For this reason, the report may not impress scientists or statisticians, but it can still offer, as Allstate says, a “realistic snapshot” of driving conditions around the country. Researchers identified two key indicators for ranking the “Best Drivers”: the length of time an average driver is likely to go between accidents, and the percentage difference between the likelihood of an accident in a particular city and the national average. Cities with the “Best Drivers” have the longest period of time between accidents and the lowest likelihood of accidents relative to the rest of the country.

This was Allstate’s eighth annual “Best Driver” report, and it has noted a tendency for smaller cities in less populous areas to have “better” drivers than larger, more densely-populated areas. This year, it declared Washington, DC to have the “worst” drivers, and Sioux Falls, South Dakota to have the “best.” Denser, more populated cities present different challenges for drivers than smaller cities, including a greater number of potential distractions, heavier traffic, and less-predictable road conditions.

Florida Court Rules on Question of Insurance Coverage for Negligence and Wrongful Death Claim: Maryland Casualty Company v. Smartcop, Inc.

Thu, 27 Sep 2012 14:02:03 -0500

The alleged failure of software used to monitor police vehicles, which formed the basis of a wrongful death lawsuit against the software developer, is not covered by the developer’s liability insurance policy, according to the U.S. District Court for the Southern District of Florida in Maryland Casualty Company v. Smartcop, Inc., et al. The estate of a sheriff’s deputy killed in a police vehicle sued the software developer, and the developer’s insurance company filed a declaratory judgment action to establish its obligations to its insured. The court granted the insurance company’s motion for summary judgment on Friday, September 21, 2012, ruling that the underlying lawsuit was excluded from coverage under the policy.

Maryland Casualty Company sued Smartcop, which did business as Consolidated Technology Solutions (CTS), and Lazaro Guerrero, who represented the Estate of Melissa Powers, to determine its duty to defend or indemnify CTS in a state lawsuit filed by Guerrero. The state lawsuit arose from the death of Powers, a Monroe County sheriff’s deputy, in a car accident in Key Largo on the night of June 22, 2010.

According to the Orlando Sentinel, Powers was driving in emergency mode at about 106 miles per hour when she swerved to pass another vehicle. She reportedly lost control of her patrol car and hit a parked truck. Monroe County subsequently changed its policies regarding when its officers may drive in emergency mode. CTS had provided software to the county sheriff’s department to monitor its vehicles in 2002. Guerrero filed a lawsuit against various parties, including CTS, alleging that Powers’ death resulted from CTS’s negligent failure to maintain or update the software.

Lawsuit Over Allegedly Defective Chinese Drywall Not Covered by Commercial General Liability Insurance Policy, Court Rules

Tue, 25 Sep 2012 09:47:29 -0500

A Florida federal court recently ruled on a question of whether an insurance company was obligated to defend or indemnify a construction company in a class action products liability lawsuit. The court granted summary judgment to the plaintiff insurance company in First Specialty Insurance Corp. v. Milton Construction Company in July 2012, finding that a Total Pollution Exclusion endorsement in the company’s commercial general liability policies excluded coverage for a claim regarding allegedly defective drywall.

The defendant, Milton Construction Company, is also a defendant in a class action lawsuit in the Eastern District of Louisiana, Block, et al v. Gebrueder Knauf Verwaltungsgesellschaft, K.G., et al, alleging both personal injuries and property damage resulting from defective Chinese drywall. According to the class action suit, sulfur compounds exited the drywall and injured people in the affected properties, such as eye and throat irritation, nausea, fatigue, breathing difficulties, and neurological damage. The compounds also allegedly damaged metal in the affected properties through “rapid sulfidation,” including air conditioning and refrigerator coils, electronic equipment and appliances, and copper wiring. Milton allegedly installed defective Chinese drywall in units at Miami’s San Lorenzo Condominium building, giving rise to claims in the class action lawsuit.

Milton had two commercial general liability insurance policies, issued by the plaintiff, First Specialty Insurance Corp., during the time period covered by the class action lawsuit. Both policies included coverage for “bodily injury” or “property damage” claims with a “Total Pollution Exclusion Endorsement.” The endorsement excluded coverage for injury or damage claims arising from the discharge of pollutants, defined as any “solid, liquid, gaseous, or thermal irritant or contaminant,” such as smoke, fumes, chemicals, or waste. Milton requested defense and indemnification from First Specialty in the drywall class action suit. First Specialty denied coverage under the pollution endorsement and filed suit in the Southern District of Florida seeking a declaratory judgment affirming its position.

Florida Court Rules on Premises Liability and Medical Negligence Claims Against Celebrity Cruises

Tue, 25 Sep 2012 06:51:00 -0500

A Florida federal court dismissed one cause of action in a passenger's lawsuit against a cruise line, but allowed two other causes of action to proceed. The plaintiff in Stewart-Patterson v. Celebrity Cruises, Inc. alleged that the cruise line was liable for her slip-and-fall accident aboard the ship, as well as for injuries caused by a doctor that ship personnel compelled her to see while the ship was docked in Colombia. The court dismissed one of the plaintiff’s two causes of action for premises liability, but denied the defendant’s motion to dismiss her cause of action for medical negligence.

The plaintiff allegedly slipped on a wet substance while descending a staircase aboard a cruise liner owned by Celebrity Cruises. She claimed in her lawsuit that the fall caused her to fracture her left ankle. She received treatment in the ship’s infirmary, but was sent ashore for an orthopedic consultation with a doctor in Colombia. She alleges that ship personnel told her she had to undergo the consultation in order to remain on the cruise. Her alternatives, she claims, were to sign a full release of liability with the cruise line or find another way home. The Colombian doctor allegedly misdiagnosed her injury, which aggravated her condition and caused further damage.

The plaintiff filed suit against Celebrity Cruises in the U.S. District Court for the Southern District of Florida. She asserted three causes of action: a negligence claim based on premises liability; negligent mode of operation, claiming that the defendant breached a duty to repair the dangerous condition before an accident took place; and medical negligence, for what she characterized as the defendant’s poor choice of a doctor in Colombia. The defendant moved to dismiss the second and third causes of action, arguing that the negligent mode of operation claim was not recognized by admiralty law and was duplicative of her other negligence claim, and that it could not be held vicariously liable for the actions of the Colombian doctor.

Seaman's Lawsuit for Maritime Injuries Dismissed Upon Cruise Line's 12(b)(6) Motion

Thu, 20 Sep 2012 13:20:23 -0500

A man working on a cruise ship filed suit against the cruise line company and the companies that allegedly employed him, asserting various injuries that he claimed arose from medical treatment aboard the ship. The defendants in Petrovic v. Princess Cruise Lines, Ltd., et al filed motions to dismiss, alleging under Federal Rule of Civil Procedure 12(b)(6) that the plaintiff failed to state a claim for which the court could grant relief. The court agreed with the defendants and granted their motions to dismiss the suit, giving the plaintiff time to revise his pleadings.

Zeljko Petrovic worked aboard the M/S Diamond Princess, a cruise ship owned and operated by Princess Cruise Lines, Ltd. He claims that he was injured on or about August 6, 2010 as a result of negligent medical treatment provided by the defendants. His complaint specifically states that “the Defendants” failed to provide adequate medical care, but does not identify one or more specific defendants as the negligent party or parties. The ship was docked at a United States port when he fell ill and went to the ship’s hospital for treatment. He claims that the negligent medical treatment exacerbated his illness and caused permanent damage to his heart.

Petrovich filed suit in the U.S. District Court for the Southern District of Florida against Princess and three other companies: Steiner Transocean Limited, Steiner Leisure Limited, and Steiner Transocean U.S., Inc. The complaint identifies Petrovich as a seaman working in service of a vessel. It asserted several causes of action, including general negligence under the Jones Act, unseaworthiness of the ship, and failure to provide maintenance and proper medical treatment.

Premises Liability Claim Leads to Insurance Dispute, Shifting Jurisdiction Between Florida State and Federal Courts

Tue, 18 Sep 2012 09:10:00 -0500

A state court in Miami-Dade County, Florida will decide a woman’s dispute over insurance coverage for a premises liability claim, after the case had moved around between state and federal courts. The defendant in Taylor v. Admiral Insurance Company, et al removed the case to federal court based on diversity jurisdiction. New evidence implicated another company, but joinder of the company destroyed diversity. The court had to decide whether to permit the joinder of the company as a defendant or remand the case to state court.

The plaintiff, Kerry Taylor, attended a private function at Villa Vizcaya, a property owned by Miami-Dade County, on April 4, 2006. She allegedly fell from a broken step and sustained injuries that required ongoing treatment, including multiple surgeries. Taylor sued the county, Vizcaya Museum & Gardens, and Villa Vizcaya to recover damages for her injuries, alleging in part that they failed to warn of a dangerous condition on the property. The county requested defense and indemnification from Admiral Insurance Company.

Months earlier, the company planning the April 4, 2006 private event obtained a general liability insurance policy from a company called Brown & Brown. The policy, which purported to cover claims arising from the April 4, 2006 event, had Admiral as its general liability insurer, and named Villa Vizcaya as an additional insured. After Taylor filed her lawsuit, Admiral denied coverage of the claim, alleging that none of the parties to the lawsuit were named as insured parties under the policy.

Florida Supreme Court Rules that Dangerous Instrumentality Doctrine Applies to Motor Vehicles Other than Automobiles

Thu, 13 Sep 2012 21:28:45 -0500

The Florida Supreme Court reviewed the “dangerous instrumentality” doctrine, a rule governing objects widely known to be dangerous, in Rippy v. Shepard. The trial court ruled that Florida’s dangerous instrumentality doctrine does not apply to farm tractors and dismissed the plaintiff’s complaint. The appellate court affirmed the dismissal. The Florida Supreme Court disagreed, however, and quashed the lower court rulings in favor of the plaintiff’s argument.

James Earl Rippy was injured by a farm tractor owned by James Shepard. Rippy sued Shepard, alleging that Shepard was liable under the dangerous instrumentalities doctrine. Rippy argued that a farm tractor should be included in the state’s definition of a dangerous instrumentality because state caselaw already included motor vehicles in the dangerous instrumentality doctrine, and because the Florida Legislature defines a tractor as a motor vehicle and regulates its use as such. The trial court rejected this argument and granted the motion to dismiss filed by Shepard. Rippy appealed to the First District Court of Appeals, and then to the Florida Supreme Court.

The seminal Florida case defining the dangerous instrumentality doctrine is Southern Cotton Oil Co. v. Anderson, 86 So. 629 (Fla. 1920). The doctrine is an English common law principle that applies to any object known to have qualities or properties that make it “peculiarly dangerous in its operation,” as the court held in S. Cotton. The court in that case included motor vehicles in its definition of a dangerous instrumentality, specifically in the context of their use on public roadways. The court imposed vicarious liability on a motor vehicle owner if the owner entrusted it to someone who caused an accident. The purpose of the doctrine is to ensure that people who entrust their vehicles to others do so responsibly, by imposing financial responsibility for any accidents caused by the driver’s negligence.

Florida Court of Appeals Rules on State Medicaid Program's Right to Reimbursement from Private Settlement for Personal Injury Damages

Tue, 11 Sep 2012 09:05:30 -0500

The Florida Third District Court of Appeals ruled in favor of the state’s Medicaid program in Garcon and Robinson v. Agency for Health Care Administration, after the state sought reimbursement from a private settlement received by an injured claimant. The court affirmed the state’s position that Medicaid should be the “payor of last resort” in cases of injury where other parties are principally liable for damages. It therefore affirmed a lower court ruling ordering the Medicaid claimant to reimburse the program, out of a settlement received from a tortfeasor, for the amount it had paid for past medical expenses.

One of the appellants, Robinson, suffered permanent and total disability as a result of a gunshot wound, according to the Court of Appeals ruling. Medicaid paid him $244,590.57 for past medical expenses, an amount all parties agreed was reasonable. Robinson later received a settlement payment from a tortfeasor for $1 million. The settlement included a stipulation that the compensation amount covered both past and future medical costs, but did not cover any noneconomic damages like pain and suffering. Medicaid claimed a lien on the settlement for the total amount of its payment, $244,590.57, and the case went before a trial court. The trial court ruled in the state’s favor.

Florida’s Medicaid Third-Party Liability Act specifically states that, in the event of an injury for which another party is liable, Medicaid assistance is secondary to all other sources of compensation for past medical expenses. The statute provides that, if Medicaid makes payment to an injured party, and the injured party then recovers damages from another party, then Medicaid must be reimbursed for its payments from the newly-discovered compensation. It even states that such reimbursement shall occur before payment to any other lienholder.