In a personal, Chapter 7 bankruptcy, an individual is able to discharge most personal debts that they are unable to pay. His or her assets may be divvied up to satisfy existing creditors to whatever extent possible. In the event that individual is the defendant in a personal injury lawsuit, those debts may be included (though generally not if they arise from one’s intoxicated operation of a motor vehicle). In the event the individual is a personal injury lawsuit plaintiff, courts typically allow that individual to retain their standing in the litigation (as opposed to being forced to turn it over to the bankruptcy trustee) and keep whatever compensation they receive from that proceeding. However, injury victims generally have to ask the bankruptcy court expressly for permission in this. Failure to do so could result in a situation like what happened in Morton.

The court noted part of the price debtors must pay to have their debts more or less discharged and make a fresh start is to detail all their property interests so the bankruptcy trustee can dole out portions of it to creditors. Among these property interests that must be listed are personal injury claims of the person in debt.

In this case, plaintiff failed to list her personal injury claim, which meant it became part of the bankruptcy estate – at least initially.

Here’s what happened:

Plaintiff was involved in a car accident with defendant, who at the time was on-the-job. Almost three years after the fact – but within the personal injury statute of limitations in that state – plaintiff filed a personal injury lawsuit, asserting she had been injured by defendant who was acting in the course of his employment. Between the time of the accident and filing her personal injury lawsuit, plaintiff also happened to file for personal bankruptcy. That action was complete, and she was discharged of her debts.

However, she had not listed her (then-potential) personal injury lawsuit as a possible asset or as exempt property. There is no dispute that this was done out of ignorance rather than some attempt to deliberately conceal it. So by way of bankruptcy law, the claim became part of her bankruptcy estate.

When the bankruptcy came to light in her personal injury lawsuit, both parties started racing to get a ruling in their favor. Plaintiff sought help from the bankruptcy court to re-open the case, list the personal injury claim as exempt property and restore her standing to the claim. Defendant sought in state court to have the personal injury lawsuit dismissed for plaintiff’s lack of standing on grounds the claim didn’t belong to plaintiff – it belonged to bankruptcy trustee.

Plaintiff was awarded reinstatement from the bankruptcy court after the case was re-opened, and the court made that decision retroactive to when she first filed her personal injury lawsuit. At almost the same time, defendant driver and his employer were awarded that dismissal, finding plaintiff lacked standing and it was now too late – past the statute of limitations – to amend or refile. Plaintiff returned to state court with the bankruptcy order in hand, asking the judge to reconsider, but he declined.

Plaintiff appealed. The Court of Special Appeals reversed and the state high court affirmed that decision. The court ruled that because the bankruptcy court had re-vested plaintiff’s personal standing and related it back to her earlier filing, this was sufficient for her to continue with her case.

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

Additional Resources:

Morton v. Scholtzhauer, Aug. 19, 2016, Maryland Court of Appeals

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Great West Cas. Co. v. Robbins – Fatal Truck Accident Lawsuit Insurance Battle, Aug. 17, 2016, Fort Lauderdale Car Accident Lawyer Blog

Yet up until very recently, it was perfectly legal for rental car companies to loan out recalled vehicles to unsuspecting customers – without making repairs or warning customers of the danger. That should alarm motorists everywhere, but it’s especially troubling here in South Florida, which has a booming rental car industry from tourism. Now consider that there have been record vehicle recall rates in recent years – with an average of 900 recalls annually breaking down to some 2.5 every single day. In the last two years, more than 100 million vehicles were impacted by safety recalls. To give you a better idea of how big that is, there are a total of 260 million vehicles registered in the U.S.

The good news is that now, following an arduous legal battle, the Raechel and Jacqueline Houck Safe Rental Car Act of 2015, which passed as part of a larger transportation bill, went into effect June 1, 2016 and mandates that rental car companies with 35 or more vehicles in fleet must ground any recalled vehicles until they can be repaired.more

Although the rental car industry comprises a relatively small percentage of the total vehicles registered in the U.S., it nonetheless poses a significant threat not only to the passengers of those vehicles, but everyone else who shares the road with them.

The law requires that vehicles in the fleet that have been subject to recall must be grounded within 24 hours of the notice. Rental car companies may be given up to 48 hours if the recall affects a substantial portion of their fleet.

One issue that has raised some concern is that the law says the clock starts ticking on that 24-hour window as soon as the rental company receives written notice of the recall from the National Highway Traffic Safety Administration (NHTSA), either via email or U.S. mail. (It should be noted that e-mail transmission of recall notices isn’t standard at this juncture). But in all reality, recall information is made known weeks or even months before the NHTSA submits a written recall notice to rental car companies. This information regarding the recalls is widely available to the public from the NHTSA, the auto manufacturers and the news media. And yet, the law doesn’t correct the disparity of the timing.

So technically, a rental car company may have knowledge of a recall weeks or even months before they legally have to do anything about it.

Still, the rental car company likely could still face a more substantial exposure to liability than before if a Fort Lauderdale car accident is caused by a defective rental car and there is evidence the company had constructive knowledge (knew or should have known) about the recall, and yet failed to act.

Overall, though, the measure is likely to improve safety for those who rent vehicles and those who share the road with them.

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

Additional Resources:

Safe Rental Car Act: What Now? April 2016, By Chris Brown, Auto Rental News

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Facebook While You Drive? Better Make Sure You Can Afford the Insurance Bill, July 1, 2016, Fort Lauderdale Car Accident Attorney Blog

However, there are exceptions and it’s important to consider that under Florida’s comparative fault statute, F.S. 768.81, those who are partially to blame for their own injuries can still collect damages from others who shared responsibility.

The recent case of Roddey v. Wal-Mart, though not a Florida case, is a good example of this. In this South Carolina Supreme Court case, justices were asked to decide whether lower courts erred in issuing a directed verdict in favor of a store whose contracted security guard chased down an alleged shoplifter – with fatal consequences.

According to court records, a woman waited in her vehicle in the parking lot of a large chain store while her sister attempted to shoplift several articles of clothing (this fact was undisputed by plaintiffs). A store manager noticed the shoplifting attempt and notified a number of other employees, including an on-duty security guard.

The security guard worked for a contracted company to provide parking lot security.

Ultimately, the alleged shoplifter exited the store without any stolen items. As she left, the security guard approached her. He reportedly shouted that he needed to speak with her, but she did not stop. Instead, she ran to her sister’s waiting vehicle.

The security guard at first tried to block the sisters’ exit, but the driver backed out and fled the parking lot.

Now at this point, according to the policy of the store and the security company, the pursuit should have been over. Those policies require employees to halt pursuit when the suspect either enters a vehicle or exits the parking lot. The reason is due to potential danger to other patrons.

The store manager had told the security guard to get the license plate number of the vehicle. He radioed in that he was unable to do so. He told the manger he was not a police officer and could not detain someone. The manager reportedly responded by telling him, “Do what you got to do,” which the security guard took to mean he had to obtain that license plate number by leaving the parking lot.

He followed the two sisters as they existed the parking lot and entered the highway. The radio frequency at that point was lost.

An expert witness for the plaintiff testified that the problem started when employees for the store failed to follow their own policy in asking the contract employee to do something the store itself specifically says they won’t do and won’t allow their contractors to do.

Soon after the sisters entered the highway, in an attempt to evade the security guard right behind them, the driver lost control of the car and crashed. The suspected shoplifting sister was killed in the car accident.

A personal representative for her estate sued the store, the the security company and the guard.

At the conclusion of trial, the store moved for a directed verdict, arguing there was no evidence the store breached its duty of care, the actions of store employees weren’t the proximate cause of decedent’s death and decedent’s own fault in causing her death was more than 50 percent under law. (In South Carolina, plaintiffs can’t be more than 50 percent at-fault in order to collect damages; In Florida, plaintiffs can be up to 99 percent at-fault and still collect damages for the remaining 1 percent attributed to others.)

Trial court granted the motion, finding even if the store was negligent, there was not proximate cause because the events weren’t foreseeable. Jurors later found decedent 65 percent at fault and the security company/ guard 35 percent at fault. Under state statute, that meant plaintiff could not collect.

Plaintiff appealed. Although the appellate court affirmed, the South Carolina Supreme Court reversed.

The state high court found there was evidence form which a jury could find the store negligent and from which it could find that negligence was the proximate cause of plaintiff’s injuries.

A new trial has been ordered.

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

Additional Resources:

Roddey v. Wal-Mart, March 30, 2016, South Carolina Supreme Court

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Premises Liability for Dangerous Spring Break Gathering, April 2, 2016, Fort Lauderdale Car Accident Lawyer Blog

Make sure to ask the personal injury lawyer negotiating your settlement about this possibility, and carefully read the document yourself before signing off.

The case of Gores v. Miller is a cautionary tale. This was a case recently before the South Dakota Supreme Court, but the principles are still applicable to accident victims in South Florida.more

According to court records, the case began with a car accident in which a 15-year-old girl, a passenger in a vehicle driven by another teen, was seriously injured. Her mother was the plaintiff, who initially took action against the other teen, who was driving his mother’s vehicle and who was covered under his mother’s auto insurance policy.

In a settlement agreement reached in that case, plaintiff received the $25,000 limit of the driver’s car insurance policy. She also received benefits under her own underinsured motorist coverage, and the total amount of benefits recovered was $100,000. The language of that settlement agreement specifically stated plaintiffs “forever discharged” not only the named defendant, heirs, executors, administrators and agents, but also, “all other persons, firms or corporations who might be claimed to be liable… from any and all claims, demands, damages, actions, causes of action or suits of any kind or nature whatsoever… from all injuries… which have resulted or may in the future develop from (the accident).“

Subsequent to signing this agreement, plaintiff filed a lawsuit against the doctor who had treated her daughter after the crash. The emergency room physician treated lacerations on the teen’s arm. These were deep wounds, and the doctor conducted a skin graft on the girl. Treatment occurred immediately after the crash, but also continued over the next several months.

Plaintiff alleged the skin graft was not done properly. She also alleged the doctor failed to properly instruct the girl on how she was supposed to care for her wounds. Had the doctor’s standard of care been adequate, plaintiff alleged, the girl would have healed better and more quickly.

Defendant doctor denied these claims, but also filed a motion for summary judgment, on the grounds the release previously signed by plaintiff released her of any liability – even if she would have otherwise been liable.

Trial court granted that motion and plaintiff appealed.

In its review, the South Dakota Supreme Court, the court noted a release is a contract. If a contract is not ambiguous, then it’s enforceable. Further, if the language is unambiguous, then neither the subjective intent or failure to obtain full satisfaction from that settlement is going to matter.

Here, the doctor treated plaintiff’s daughter for injuries obtained in the accident. Therefore, the medical malpractice claim “arose from” the accident. Based on the language of the agreement, any liability medical malpractice on the part of the doctor in this case was discharged in the release.

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

Additional Resources:

Gores v. Miller , Feb. 3, 2016, South Dakota Supreme Court

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Methadone Clinic, Doctor, Settle Drugged Driving Crash Case for $8M, Feb. 6, 2016, Fort Lauderdale Injury Attorney Blog