The new law denying injured persons any damages if they are more than 50% at fault could cause the plaintiff to shoot craps in mediation or negotiation.
The injured plaintiff now faces the risk of taking and recovering nothing unless she can convince an insurance company or a jury that she was not more than 50% at fault–a difficult if not impossible task in many cases where there is no way to objectively predict how a jury would apportion percentages of fault.
This will steeply compromise the plaintiff’s bargaining position in negotiation and mediation, which is precisely what the sponsors of the bill wanted. Faced with the prospect of getting nothing, plaintiffs may feel compelled either to accept a fraction of what they deserve, or risk losing it all.
The biggest change in Florida personal injury law is the change in the law of comparative negligence which now says that an injured party may not recover any damages if the injured party is more than 50 percent at fault.
This will affect every single case where both parties were partially at fault, and where the percentage of fault attributable to each is debatable, as is so often the case.
What if you were seriously injured in a collision at an intersection. In court, suppose the facts are contested, and a jury finds you to be 51% at fault in causing the collision, and the other driver to be 49% at fault.
You may have hospital bills, scars, permanent disabilities and lost earnings for which the other driver was 49% responsible. But rather than collect 49% of those damages from the other side, under the new law, you will get nothing. Nothing.
This means that a sizeable chunk of damages that were previously available under law no longer exists, and many injured persons will be denied recovery of a percentage of damages to which they were formerly entitled. A longstanding civil right to damages simply done away with by an act of the Legislature and the stroke of the Governor’s pen.
I just sent a referring attorney a check for $50,000.00 as a referral fee. He was thrilled.
$50,000.00 is quite a windfall for a lawyer for “just making a phone call.” But bar rules contemplate that the referring lawyer not just make a call, but participate and assume “secondary responsibility” for the case and client. For assuming this “secondary responsibility,” the referring attorney may receive “a maximum of 25% of the total fee.” By the way, the referring attorney not only participates in the fee, but also can be liable if the case is mis-managed and results in a mal-practice claim.
Referral fees in excess of 25% are strongly frowned upon. If the referral fee exceeds 25% the lawyers must obtain permission from the court.
Lawyers are not, repeat not, allowed to share fees with non attorneys, and if discovered to have done so, the lawyer would be subject to discipline including in one recent case suspension from practice.
We are fortunate to have built a network of attorneys over the years who often turn to us to handle their clients’ personal injury cases, through steady, aggressive and ethical representation. If you’re an attorney interested in co-counseling your client’s personal injury case with an attorney who gives each individual case and client personal attention, we may be a good fit for you.
The tragic death of five teenagers on the Palmetto Expressway because of a drunk driver going the wrong way puts a spot light on the issue of punitive damages for drunk driving in Florida. Florida law clearly recognizes that persons injured by a drunk driver are not only entitled to “compensable damages” –damages intended to compensate for one’s injuries such as medical bills, lost earnings, and pain and suffering–but also damages intended to punish the drunk driver. Florida law treats punitive damages resulting from drunk driving differently than punitive damages in other cases. Rather than requiring “clear and convincing” evidence, drunk driving can be proven by “the greater weight of the evidence,” a much lower standard. Also, unlike other punitive damages cases, there is no cap on the amount that can be recovered when punitive damages are sought for drunk driving. Insurance does not provide coverage for damages resulting from drunk driving. Insurance only covers for damages resulting from “Negligent” or :”Careless” conduct; whereas, drunk driving is intentional. But a good personal injury lawyer will still press for such damages–to anger a jury, and to pressure the insurance company to pay its policy limits.
• In Midtown Miami: NE 2nd Ave. and NE 36th Street • In West Kendall: SW 117th Ave. and Kendall Dr. • In Coconut Grove: S. Dixie Highway every intersection south of I-95 • In South Miami-Dade: SW 117th Ave. and SW 152nd St. • In Fort Lauderdale: A1A and Las Olas Blvd. • In Miami Beach: Alton Rd. and Dade Blvd. • In Doral: NW 87th St. and NW 36th St. • In Miami: Brickell Ave. Bridge • Pembroke Pines: Pines Blvd. and S. Flamingo Rd.
And remember, if you’re in an accident,
• Call 911 • Move your vehicle out of the flow of traffic if possible • Exchange driver’s information • Get yourself checked out • Take pictures
Because of lax regulation–surgical centers have to register, but not be licensed–South Florida has grown into destination for medical tourists looking for discount pricing on the popular but complicated procedure, the Brazilian butt lift.
When correctly performed by a board certified surgeon, the procedure can be safe, effective and expensive at a cost of $5,000.00 to $15,0000.00. So many turn instead to lower prices offered at unlicensed surgery centers, with lower standards of hygiene and infection control, and ill-equipped in the event of an emergency complication.
Typically doctors at such centers are not board certified and have no insurance. They’re employed as “independent contractors,” so the surgery center can deny liability for the doctor’s malpractice. Patients sign release and waiver forms, further compromising their rights.
After the procedure, patients often stay in substandard recovery houses where they must lie on their stomachs for two to four weeks after the procedure–sometimes exposed to conditions that can breed infection. Under these circumstances, collecting money damages for the victim of a botched butt lift–by identifying a defendant with the financial capability of paying for the damages–can pose difficult challenges for even the most aggressive of lawyers.
It started as a small cut. But the client was elderly, in her 80’s, and had pre-existing blood circulation problems. With the passage of time, the opening in the skin grew larger, and larger. And treating and dressing the wound became more and more difficult. The poor woman wound up with a 6-inch long and several inches wide opening in the flesh covering the top of her foot. The condition persisted and defied treatment for months, requiring highly specialized care.
An apparently minor accident on the job developed into a serious chronic injury for my client, who ultimately went on to recover–following a period of utter misery. Photos of the condition–which we will NOT publish here–provided compelling evidence which supported a confidential settlement with a major national supermarket chain, and the gratitude of a much relieved client.
Not far from my home in North Miami Beach, a shrine marks the spot where a 10-year old boy named Anthony Reznik was struck and killed in the crosswalk by a driver who blew a red light.
No such shrine marks the spot just a few blocks from my office in North Miami where three teenage boys en-route to a soccer tournament were mowed down on the sidewalk by a drunk driver. But the loss of life is certainly no less tragic.
These incidents comprise examples of a disturbing truth: Florida has the greatest number of pedestrian fatalities in the United States–people killed while on foot by careless, or reckless and wanton drivers. And the numbers are still going up, 899 pedestrian deaths last year–a 31 percent increase over the year before. A profile of such cases:
The most likely victims are children or elderly. Most occur in the evening or at night The most likely offenders are drivers under the influence or distracted with cell use, or those rolling a stop sign. The most likely places are intersections, roadsides or shoulders and parking areas Many are hit-and-run
Obtaining justice for many of these tragic losses can be highly problematical. The at fault driver cannot be identified, or they are not insured, and in many cases, they cannot be prosecuted criminally for lack of evidence showing criminality as opposed to simple carelessness.
Counsel’s best advice is not much different from what your mother would say: You need to be aware of where you are, and what’s going on around you all the time, and if you let your guard down, catastrophe can occur. And even then, it may not be enough.
The answer is yes, but with certain restrictions. Florida law recognizes a right to privacy, and courts are supposed to weigh and balance the competing interests in protecting personal information with the need to discover relevant evidence–evidence that could be critical in determining fault.
In one leading case, the court permitted an expert to inspect the cell phone of a driver killed in a crash with a truck for the nine-hour period immediately surrounding the accident.
Distractions from cell phone use and texting are said to be responsible for as many as one out of every four crashes. Call Detail Records (CDR) can reveal:
– The precise time when a call is placed – The number placing the call – The number receiving the call and – The length of the call
It can also show timestamps on text messages and data reflecting GPS use like google maps or Waze.
Some phone companies will honor a subpoena; others require a court order. A competent attorney should be able to obtain either of these. However, time is of the essence. Federal regulations require the phone companies to maintain the call detail records for 180 days (six months). But upon request, phone companies are required to maintain the data for an additional 90 days. So if cell phone use or text messages appear to be an issue, the request for records should be made as soon as possible.
Our client, a kind and gentle man from Peru, was working the night shift operating a Miami airport shuttle bus when he was hit broadside by a drunk driver blowing a red light at high speed. The impact sent our client through the open driver’s side window onto the pavement 30 feet away. He lost consciousness, and was left with multiple traumatic injuries including orthopedic fractures and a closed head injury with post concussion syndrome.
It was clear that the crash was entirely the other driver’s fault. But was my client wearing his seat belt and shoulder harness at the time? This was a critical issue. Under law, the seat belt defense provides that one’s damages should be reduced to the extent that the injuries resulted from the failure to wear an operative seat belt. In this case, my client could not definitively say whether or not he was belted. There as memory loss from the head trauma. But forensically, if he was belted, he would not and could not have been ejected.
Jury verdicts reducing damage awards because of the seat belt defense swing wildly. Sometimes an injured plaintiff’s recovery can be reduced by as little as 20%, and sometimes as much as 60% or more.
Weighing risk versus reward, my client gratefully accepted a confidential settlement in the mid-six figure range, one of the richest on record for similar cases, and today. I am glad to report, he and his family enjoy a measure of peace to compensate for his unfortunate injuries.
Personal Injury Attorney Mark Wolin proudly serves Florida and South Florida communities in Miami-Dade County, Monroe County and Broward County including Aventura, Bal Harbour, Bay Harbor Islands, Biscayne Gardens, Biscayne Park, Davis Harbor, El Portal, Hallandale, Hallandale Beach, Hialeah, Hollywood, Hollywood Beach, Liberty City, Little Haiti, Little River, Miami, Miami’s Upper East Side, Miami Beach, Miami Gardens, Miami Shores, North Bay Village, North Miami, North Miami Beach, Opa Locka, Pembroke Pines, Pembroke Park, Sunny Isles Beach and Surfside, Florida. View our privacy policy here.
