Defining a Conflict of Interest

As noted in Florida Rules Regulating the Florida Bar 4-1.7, some ethical conflicts of interest for lawyers exist when:

• The representation of one client would be directly adverse to another.
• There’s substantial risk that representing one or more client would be materially limited by the lawyer’s responsibilities to another client, former client, or third person by a lawyer’s personal interest.

Such conflicts can sometimes be waived if the lawyer believes they can provide competent and diligent representation to all clients, the representation isn’t barred by law, and each affected client gives informed consent.

When Interests May Conflict for Broward Car Accident Victims

When it comes to Broward car accident cases, the most obvious conflict of interest would involve representation of one driver suing another for negligence. That would likely never happen.

Similarly, it’s highly unlikely a Broward car accident lawyer could ethically represent both an injured passenger and the driver being sued for the negligence that caused the passenger’s injuries.

Where the lines become a bit more blurred is when two people in the same crash are suing a third party for negligence that caused both their injuries. For example, it might make sense for two family members injured in the same car accident to hire one lawyer if the other driver was mostly if not entirely at-fault. This is particularly true if you’re a parent of minor children.

However, it’s important to understand that if a driver and passenger suing the same driver for the same act of alleged negligence, a conflict can arise because the money will be paid from the same pot. If the injuries of one person are more severe, fairness would stand to reason that they should get a larger chunk of the money. An attorney representing both clients may find themselves with a conflict of interest because they’re advocating for the maximum payout for each.

Also bear in mind that there are few South Florida car accidents in which one driver is entirely, 100 percent at-fault for the crash. There are often several factors. If you are a passenger in a car with a driver who was just partially at-fault, you may have viable claims against both drivers. In that situation, it would be a conflict of interest for a Broward personal injury lawyer to represent both you and the person who was driving the car you were in.

Florida Bar Ethics Opinion on Car Accident Lawyer Conflicts of Interest

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The Florida Bar Professional Ethics Committee issued an opinion in 2002 that breaks down how Florida personal injury lawyers can determine whether there’s a conflict of interest in car accident cases. The original inquiry came from an attorney asked to represent both a passenger and driver in a lawsuit for negligence and property damage against a third-party driver.

The committee first pointed to a 1993 Florida Supreme Court ruling in in The Florida Bar v. Mastrilli, in which the Court held one attorney could not simultaneously represent both driver and passenger where a passenger is pursuing a damage claim for negligence against the driver.

Similarly, in State Farm Mutual Ins. Co. v. K.A.W., the Florida Supreme Court held that a law firm that represented a driver and passengers against third party insurers and tortfeasors couldn’t later represent passengers against the driver. This was even though the driver had a new lawyer and didn’t object to the passengers’ lawsuit.

Some of the scenarios laid out by the ethics committee:

• If there are no actual or potential claims against a driver by injured passengers, one attorney can ethically represent all parties against a third party, so long as there’s sufficient insurance coverage by that third party. However, if there is not sufficient insurance coverage, the attorney needs to explain the potential conflict of interest and all plaintiffs must agree about the distribution of benefits/recovery amongst themselves.
• If there’s evidence of negligence by the driver in a one-car accident, an attorney can’t represent both the driver and passenger. The only exception might be when a passenger and driver are members of the same family and the driver is uninsured/otherwise judgment-proof. Issues of comparative fault can come into play, though, so lawyers need to be very careful when accepting these cases.
• If the driver and passengers are all injured but evidence shows that the plaintiff driver was partially at fault, there’s a conflict of interest between the driver and passengers and a single attorney can’t represent them all ethically – even with everyone’s consent.
• If the passenger and driver are all family members and the driver is underinsured, uninsured, or otherwise judgment-proof, one attorney can ethically represent all parties against the driver’s UM/UIM policy – but only if the attorney determines it’s not worthwhile or appropriate for the plaintiff to sue the driver. An independent guardian or guardian ad litem may need to be appointed to ensure the interests of any minor children involved are protected.

If there is a situation in which a personal injury lawyers concludes there is a conflict of interest after already taking on the case, they may need to withdraw their representation. This could result in unfortunate delays. It’s worth noting too that because injury lawyers are paid on a contingency fee basis (meaning they aren’t paid fees unless/until they win), they won’t be paid if they need to withdraw representation early. This is why lawyers may be particular about the cases and clients they take on. It’s better for everyone in the long-run if potential conflicts of interest are identified at the outset.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Florida Bar Opinion 02-3

More Blog Entries:

Understanding Negligent Security at Florida Hotels – Fort Lauderdale Injury Lawyer Insight, Nov. 8, 2023, Fort Lauderdale Accident Lawyer Blog

Recently, the Florida Supreme Court was asked to weigh in on whether a claimant could pursue claims of dangerous instrumentality against two parties – both parents of the driver, one the title holder and the other the “bailee.” The “bailee” is one who gains possession/control of property but does not actually own it. Here, the father of the negligent, 21-year-old driver was the title-holder. The mother was the bailee; she was the primary driver of the car, but both parents frequently permitted their son to drive it as well.

According to court records in Emerson v. Lambert et al., the young man was driving home from dinner when he struck a motorcyclist, who is the plaintiff in this case. The crash was catastrophic, leaving the motorcyclist a quadriplegic.

In the subsequent Florida injury lawsuit, plaintiff named the driver and his parents as defendants, the latter two allegedly vicariously liable under the dangerous instrumentality doctrine.more

Jurors would later hear testimony that while the mother was the primary driver of the car, it was considered a “family car,” and anyone of driving age was free to take the extra key and use the car as needed. On the day of the crash, the young driver said he understood he had both his parents’ general permission to use the car. He was unsure if he’d spoken to his father that day, but he did expressly ask his mother for permission to take the car before leaving. She granted it.

As the trial wound to a close, the mother sought a directed verdict, arguing she couldn’t be liable under the dangerous instrumentality doctrine because the doctrine didn’t support holding family members liable as bailees. The trial court denied this motion, citing the 2000 Florida Supreme Court decision in Aurbach v. Gallina, a prior state supreme court ruling that left open the chance that a family member with identifiable property interest in a vehicle could be held vicariously liable, even if they didn’t personally own the vehicle.

The question of the mother’s liability as the bailee of the vehicle was put to the jury. The instruction was that if the greater weight of the evidence showed that she, as the vehicle bailee, gave her express or implied consent for her son to drive the car, then she should be held liable for his negligence.

The jury decided that as far as the crash itself, the driver was 75 percent liable and the motorcyclist 25 percent liable. It also found that the driver’s father as the car title owner and mother as bailee could be held vicariously liable for his negligence. Total damages were set at $27.4 million. After weighing fault apportionment and medical/social security disability setoffs, that meant a net judgment in favor of the plaintiff at $18.9 million. That amount was reduced to the statutory maximum of $600,000, pursuant to 324.021(9)(b)3, which limits financial damages owed due to a vehicle owner’s vicarious liability.

The mother again sought a directed verdict, as well as a new trial. Both requests were denied, and the case went to the Florida 2nd District Court of Appeal. The appellate court denied the request for a new trial, but reversed the trial court’s ruling on the issue of the mother’s vicarious liability. The court ruled that if a title owner of a car entrusts that vehicle to a family member who in turn inflicts injury on others with the car, the title owner can be vicariously liable. If a non-title-holding family member has a property interest in a car (as a bailee or otherwise) and then entrusts that car to another who causes injury, the bailee can only be liable if the title owner denies liability for that entrustment. That wasn’t the case here, the 2nd DCA ruled. The father/title owner should be vicariously liable for the entrustment.

The case was remanded to the trial court, but the 2nd DCA certified the question to the Florida Supreme Court, which in a split-ruling determined the appellate court ruled correctly. Vicarious liability under dangerous instrumentality doctrine would extend her to the father as the title owner, but not also the mother as the bailee.

Florida is the only state at this point that recognizes the dangerous instrumentality when it comes to vehicle owner liability for driver negligence. But as this case shows, its application isn’t unlimited.

If you’re injured in a Fort Lauderdale car accident, a Broward injury lawyer can explore every possible avenue and fight for maximum compensation.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Emerson v. Lambert et al., Nov. 16, 2023, Florida Supreme Court

More Blog Entries:

4 Ways Broward Truck Accidents Differ From Other Types of Crash Claims, Sept. 7, 2023, Broward Injury Lawyer Blog

As a longtime Fort Lauderdale personal injury lawyer, I take seriously the responsibility to advocate for my clients’ best interests. That begins even with prospective clients. I start with a brief overview of the facts of their case as presented. I look to identify any parties that may be held legally liable. I’ll want to assess the anticipated scope of damages and apply the knowledge and experience gained in decades of practice in Florida injury law to provide a frank assessment of the likely viability and value of their case – and how I may personally be able to assist. All of this can happen before a person has chosen to formally hire an injury lawyer.

Given that you may want to engage more than one Broward injury lawyer in a free initial consultation before deciding which to hire, it’s best to walk in with a good sense of what to have ready. The more a person understands going in what to expect – and what may be expected of them – the more they’ll get out of the process. Ultimately, the goal is to find an injury lawyer who is not only experienced, qualified, and with a proven track record of success, but someone with whom you feel you can be honest, trust, and have easy communication.

Here are some Frequently Asked (and Answered) Questions to get you started:

Why Do Florida Injury Lawyers Offer Free Initial Consultations in the First Place?

Many attorneys charge by-the-hour, and the value of that hour can vary, depending on their experience, the complexity of the case, etc. Attorney consultation fees can run anywhere from $0 to $400. There are a few reasons initial consultations with injury lawyers are free. One has to do with the type of case, and how it’s paid. Plaintiffs in injury lawsuits do not pay attorney’s fees unless or until they win their case. This is called a contingency fee arrangement. Claimants in these types of cases aren’t typically large companies (which can afford lawyers on retainer). They are vying for fair compensation from someone who has legally wronged them. The injury lawyer they hire is paid at the end of a successful case with a previously-agreed portion of the insurance money or damages awarded. Contingency fee arrangements allow people with meritorious cases – but not a lot of extra cash upfront – to access quality legal representation. Attorneys are compelled to be honest with prospective clients, and only help pursue injury cases that have a pretty decent shot at winning. Knowing that many injury case clients don’t have a lot of money upfront, free initial consultations are a low-risk way to help both sides glean the information they need to get a good sense of whether the case is worth pursuing, and if the attorney is a good fit for the client’s needs.

Can an Attorney Give Me Legal Advice Before I Hire Them?

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Generally speaking, no, the attorney will not provide you with specific legal advice at an initial consultation. The purpose of this meeting is more focused on whether the prospective client wants to hire the lawyer and if the attorney believes they have the ability and capacity to take the case. Unless an official attorney-client relationship is created (via contract), you aren’t likely to get legal advice. That said, if you come prepared with lots of information, as well as questions about how the law applies to cases like yours, you may be able to get many of your questions answered.

Does Attorney-Client Privilege Apply in a Free Initial Consultation?

Again, generally speaking, when prospective clients are pursuing legal advice or representation and they reasonably believe the communication they’re engaged in to be confidential, information exchanged in the consultation is privileged. This applies even if you never hire or pay that attorney. There is an understanding that a certain amount of sensitive information must be exchanged in order for both sides to decide whether the attorney is a good fit for the case. If you aren’t sure whether certain information is confidential and you would prefer it to be, you can always ask for clarification.

What Should I Bring to the Meeting With a Broward Injury Lawyer I’m Considering Hiring?

The strength of a personal injury case is in the evidence. In the early stages of a case, you may not realize all information that may be pertinent, but you’ll want to gather as much as you can for the attorney to review. Although the specifics may vary from case-to-case, in general what we’re trying to establish is that the defendant owed a duty of care, breached that duty, and caused the resulting injuries – for which you should be financially compensated. Some of the evidence that helps us establish these facts:

• Photographs and video of the scene
• Accident reports
• Investigative notes (from police, store managers, witness statements, etc.)
• Detailed notes from the injured person, describing what happened (Day, time, exact location of incident, weather conditions, people who were with you, what you experienced during the incident, type/full extent of injuries, details of any medical treatment, impact on your work/school/social life/family commitments, etc., impacts on close relationships, etc.)
• Media reports of the incident
• Screen shots of any social media posts, photos, images, videos, etc. regarding the event by you or others involved
• Medical records
• Medical bills
• MRI and X-ray results
• Insurance information (health, auto, etc.)
• Name, address, contact information of others involved, their insurers, etc.
• Documentation of any lost income (include your regular pay stubs, W-2s, income verification, etc.)
• Information on recommended therapies, medications, future surgeries, transportation costs, etc.
• Any communication you or others on your behalf have already head with the insurer(s) involved

What Kinds of Information Can an Injury Lawyer Tell Me in an Initial Consultation?

A Broward personal injury lawyer cannot give you a guarantee on any outcome of your case. That said, they can rely on their own experience, knowledge of Florida law, and the information you’ve provided about what happened to off you some feedback on how things could go and what you’re options are. Some things on which an attorney may be able to shed light – either in the initial consultation or fairly early on in the case:

• Your legal rights based on the situation and facts provided.
• How long the claims process can take. (Claims may be resolved without litigation. If litigation is necessary, resolution will take longer.)
• Time limits you have to file your case (the statute of limitation).
• What sort of evidence will be essential to your claim.
• Who potential defendants are in the case.
• Whether legal representation is necessary for your type of claim.
• Actions you should avoid while your claim is pending.
• Details on how insurance companies are likely to approach your claims.
• Possible outcomes in the case – including how much it may cost you, and how much you may be owed based on the information you provided.

Leaving an initial consultation, you may not have all the answers, but you should feel better educated – and hopefully empowered. If you have additional questions, we’ll do our best to provide you with information so that you can make informed decisions about your next steps.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

How to Hire a Lawyer, Florida Bar Association

More Blog Entries:

4 Most Common Types of Fort Lauderdale Personal Injury Lawsuits, Oct. 8, 2022, Broward Injury Lawyer Blog

Both the Florida House and Senate signed off on SB 54, a bill subject to substantial back-and-forth to close out the end of this legislative session.

Current law requires all vehicle owners to purchase PIP that covers $10,000 for their own medical, disability and funeral expenses if they’re hurt in a crash – regardless of fault. But as any Florida car accident attorney will tell you, $10,000 isn’t nearly enough to cover healthcare costs after most accidents. (The amount hasn’t changed since 1979.) Besides that, only $2,500 is available if injuries don’t require emergency treatment. Furthermore, PIP isn’t always as easy to obtain as it should be, and many injured motorists need assistance from an attorney to ensure they’re fairly compensated. The only way to step outside the no-fault system and pursue compensation from the at-fault driver is if one’s injuries meet or exceed the serious injury threshold, as outlined in F.S. 626.737.more

Under current law, bodily injury liability coverage isn’t required, though Florida’s financial responsibility law requires motorists be able to provide at least $20,000 in bodily injury liability or wrongful death damages. A fair number of drivers do carry it anyway, so not much may change for them.

If DeSantis signs SB 54, motorists would be required to purchase a minimum $25,000 per person and $50,000 per incident in bodily injury liability coverage. Although PIP would no longer be mandatory, insurers would be required to offer optional med-pay plans of $5,000 and $10,000 without a deductible.

Although some drivers may not mind carrying the small minimum level of insurance, there is always the risk is they could be sued personally if the expenses of those injured in a crash they caused exceed that amount. One in four drivers doesn’t maintain any insurance. These issues have caused many motorists to rely on uninsured/underinsured motorist coverage.

Said one lawmaker of the new bill: “You may not like every bit of this bill, but Florida’s got to do something about their car insurance.”

Gov. DeSantis has not yet indicated his position on the law.

Those opposed to the bill (primarily insurance industry advocates) say it will result in more Floridians being without car insurance because it will require additional coverage that people can’t afford in a state where rates are already sky-high. Yet the Florida Office of Insurance Regulation concluded just a few years ago that a shift to bodily injury coverage would result in a 6 percent savings for the average driver.

Whether costs will go up or down will likely depend on what kind of insurance you already have. If you already maintain some form of bodily injury liability coverage, your bill will probably be reduced because you’ll no longer need PIP. However if you weren’t maintaining bodily injury liability before, your bill may go up slightly. The trade-off is you’re less likely to be personally sued because your insurance may cover the full extent of the damages.

Ultimately, this bill would allow those injured in car accidents to collect damages from the insurers of those responsible.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Should you care if no-fault auto insurance gets repealed? April 19, 2021, By Ron Hurtibise, Sun-Sentinel

More Blog Entries:

Fort Lauderdale Car Accident Lawyers on Handling Crashes With Uninsured Drivers, Feb. 1, 2021, Fort Lauderdale Car Accident Attorney Blog

Fort Lauderdale car accident lawyers can explain that when a vehicle defect or defective vehicle part plays a role in a crash or exacerbation of injuries, product liability claims may be filed against the auto maker.

Tesla is among the latest to come under intense scrutiny after a number of serious injuries and fatalities resulting from a range of alleged defects that plaintiffs in numerous injury and wrongful death lawsuits say rendered their electric cars unreasonably dangerous.

Defects in Batteries, Door Handles and Autopilot Feature Alleged

A recently-filed Broward County wrongful death lawsuit alleges a 48-year-old anesthesiologist and father-of-five was killed in a Davie crash after he lost control and crashed into a palm tree. He suffered no broken bones from the crash, but when the vehicle battery burst into flames, he was trapped. First responders were on scene and ready to help, but were reportedly unable to gain access because the Model S retractable door handles malfunctioned, rendering them inaccessible. This, wrongful death attorneys say, resulted in an unreasonably dangerous fire risk.

Tesla advertises its cars as “the safest on the road,” but the National Highway Traffic Safety Administration is currently investigating possible battery defects in the company’s vans and SUVs in Model S and Model X vehicles made between 2012 and 2019 that that may cause some to spontaneously burst into flames.

In addition to reportedly inaccessible doors and spontaneous combustion risk, Tesla has also come under fire for its Autopilot feature. In August, a wrongful death lawsuit alleged a 50-year-old man who died in a Palm Beach County car accident while operating a Model 3 while the Autopilot feature was engaged. Neither the system nor the driver stopped the vehicle from impact. The company markets the feature as allowing for “full self-driving capability,” but then conversely warns drivers to pay attention and keep their hands on the wheel. Two other wrongful death lawsuits stemming from fatal crashes last year – one on the Florida Turnpike and another in Fort Lauderdale – make similar complaints.

This summer, the Insurance Institute for Highway Safety released a study concluding the names that vehicle manufacturers use for these automated systems (particularly “autopilot”) send a misleading message to drivers, no matter what the fine print.

Proving Vehicle Defect in a Fort Lauderdale Car Accident Lawsuit

In Florida product liability lawsuits against vehicle manufacturers, cars or their components can be deemed “defective” either by design, manufacture or marketing. A defective design indicates it was flawed and unreasonably dangerous because of the way the company designed it. Defective manufacturing means something went wrong in the manufacturing or shipping process that rendered the vehicle unsafe, even if the design itself didn’t pose any hazards. Defective marketing occurs when an automaker knows about a certain defect (or should know about it) but fails to give consumer warnings or properly label with sufficient instruction.

Common vehicle defects that can be a factor in car accidents include faulty:

• Wiring
• Airbags
• Tires
• Fuel systems
• Computers
• Seat belts

These cases tend to be quite complex and often difficult to prove. It’s imperative to hire an injury law firm with both the resources, experience and track record to help pursue your injury or wrongful death case.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Tesla sued for ‘defective’ Autopilot in wrongful death suit of Florida driver who crashed into tractor trailer, Aug. 1, 2019, By Soo Youn, ABC News

Man fatally burned in fiery Tesla crash after door wouldn’t open, lawsuit alleges, Oct. 24, 2019, By Catherine Thorbecke, ABC News

More Blog Entries:

Why Those Injured in Car Accidents are Required to Repay Health and Auto Insurers, Oct. 12, 2019, Fort Lauderdale Car Accident Lawyers Blog

Sometimes, citations for traffic violations will be issued, with conclusions drawn about who was at-fault for the Florida car accident.

But while police reports can be very persuasive and valuable in a crash case, they aren’t the only evidence considered, nor are they generally deemed the last word in any crash case. (In fact, the crash report itself is generally considered “hearsay,” and can’t be presented as evidence at trial absent the testimony of the officer who wrote it.)more

Even if a police report clearly indicates who is at-fault, the auto insurance adjuster will nonetheless conduct their own investigation. Sometimes adjusters identify something an officer missed. Other times, the adjuster will reach an entirely different conclusion than the officer. In the event of this kind of dispute and a settlement can’t be reached between the two sides, the decision will rest with the court.

Car Accident Settlements Not Always Predicated on Police Reports

An example of this was seen recently in a Florida car accident wrongful death lawsuit settlement involving pro-tennis player Venus Williams. As reported by Reuters, Williams was involved in a car accident in Palm Beach Gardens that resulted in the death of a 78-year-old man who was a passenger in the sedan, driven by his wife, that collided with the SUV Williams was driving. The man suffered massive internal injuries and died in the hospital two weeks later.

The initial police report indicated Williams was at-fault for the crash for failure-to-yield. However, new evidence in the form of surveillance video from a nearby security camera captured the frame-by-frame of the crash. Police then amended the crash report, finding Williams lawfully entered the intersection and another car made a turn in front of Williams’ car, causing her to stop proceeding through the intersection as she had been. Then the front end of plaintiff’s vehicle slammed into the front end of Williams’. The police report concluded that the unknown “phantom vehicle” started a chain of events that led to the crash, and Williams was not at-fault.

Nonetheless, plaintiff filed a wrongful death lawsuit against Williams, alleging her negligence led to the crash. Recently, it was reported Williams settled the lawsuit for an undisclosed amount.

Although the case never went to trial, it goes to show that the conclusions of investigating officers don’t always predicate the outcome of the injury or wrongful death car accident claim. That’s why even if you’re cited for negligence in a crash – or the other driver isn’t – you should still speak to an experienced Fort Lauderdale car accident injury attorney as soon as possible following the collision.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Venus Williams, 2nd driver won’t be charged in fatal crash, police say, Dec. 21, 2017, By Faith Karimi, CNN

More Blog Entries:

Florida Uninsured Motorist Benefits Affirmed After Road Debris Deemed Left by “Phantom” Vehicle, Dec. 10, 2018, Fort Lauderdale Car Accident Attorney Blog