Let’s start with the fact that with very few exceptions, seat belts are required by Florida law for all drivers and passengers in motor vehicles.

Florida’s no-fault car insurance law holds that all vehicle owners must carry personal injury protection (PIP) coverage that provides up to $10,000 in compensation for any insureds injured in a crash with that vehicle – regardless of who was at-fault in causing the crash. An injured person can step outside the state’s no-fault PIP system and pursue a claim for additional monetary damages against any at-fault parties IF their injuries meet the serious injury threshold. As set forth in F.S. 627.737, they must prove their injuries – caused by the crash for which the defendant is responsible – resulted in significant/permanent loss of a bodily function, permanent injury within a reasonable degree of medical probability, significant/permanent scarring/disfigurement or death.

It’s worth noting that Florida is recognized as a pure comparative fault state when it comes to negligence claims. Per F.S. 768.81, that means each person/entity can only be held legally responsible to pay for the damages they caused. So for example, if one suffers $100,000 in damages and Defendant A is responsible for 40 percent and Defendant B is responsible for 60 percent, Defendant A will be ordered to pay $40,000 and Defendant B will be ordered to pay $60,000.

But what if one of the people responsible for a plaintiff’s injuries is the plaintiff themself? That is what we call contributory negligence. By way of their own negligence, they contributed to their own injuries. So if you suffered $100,000 in damages – but are 20 percent responsible for your own injuries – the most you can expect to be awarded is $80,000.

That brings us to the seat belt defense.more

What is the Seat Belt Defense?

Because the law mandates that drivers and passengers wear seat belts, and because it’s well-established that failure to do so can significantly exacerbate the injuries one sustains in a Florida car accident, failure to wear one can be grounds to assert contributory negligence, thus reducing the total amount of financial compensation to which one is entitled. This is called the seat belt defense. It’s something that the insurance company (or the defendant, if the case proceeds to litigation) will bring up to reduce the overall damages to which the plaintiff is entitled.

The validity of the seat belt defense was affirmed in the 1996 Florida Supreme Court case of Ridley v. Safety Kleen Corp. That case concerned a 1992 intersection truck accident involving a pickup truck driven by plaintiff and a service truck driven by a cleaning company employee. The injured plaintiff sued the driver/his employer/truck owner for negligence. The defense raised the issue of plaintiff’s failure to wear a seat belt as an affirmative defense. The trial court denied a defense request to instruct the jury on Florida law requiring motorists to wear seat belts. At trial, the jury found the cleaning company 100 percent liable for the crash.

Upon appeal, Florida’s 1st District Court of Appeal reversed, finding the trial court substantially erred in refusing to give the defense instruction on the state’s seat belt law. The court reasoned that because the seat belt violation constituted evidence of negligence, the jury should have been adequately informed of it. The Florida Supreme Court backed the appeals court, finding that failure to wear a seat belt makes a plaintiff comparatively negligent, and their recoverable damages should be proportionally reduced accordingly.

Subsequent rulings have stipulated that in order to prevail with the seat belt defense, defendants in Florida car accident cases must prove three things:

1. The plaintiff did not use a seat belt that was both available and operational.
2. This failure to use a seat belt was not reasonable, given the circumstances.
3. The failure of the plaintiff to use a seat belt either caused or contributed significantly to plaintiff’s injuries.

Defense attorneys would be responsible for outlining the extent to which not wearing a seat belt caused the plaintiff’s injuries or financial losses. For instance, one’s failure to wear a seat belt may not cause a crash – but it could contribute to the severity of a head injury, particularly if the car occupant was ejected from the vehicle (a scenario far more likely when someone isn’t wearing a seat belt).

Because the seat belt defense can significantly alter the value of your Fort Lauderdale injury case, it’s imperative you work with an experienced civil injury lawyer, experienced in identifying and presenting relevant evidence in your favor.

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

Additional Resources:

Ridley v. Safety Kleen Corp., May 30, 1996, Florida Supreme Court

More Blog Entries:

Will PIP Cover All My Damages in a Fort Lauderdale Car Accident? May 15, 2022, Fort Lauderdale Car Accident Lawyer Blog

A bruised arm or a scratched leg likely isn’t going to cut it. PIP provides up to $10,000 in damages for medical expenses and 60 percent of your lost wages for the time you were forced to take off work. It will also cover things like travel expenses to doctor appointments. It will not cover things like pain and suffering or loss of consortium that would be available in lawsuit.

If your injuries are more serious and $10,000 will not cover your losses, a Broward injury lawyer can review the facts and help you determine if the injuries you’ve suffered medically meet the statutory threshold.more

Florida Serious Injury Threshold

PIP is considered your “primary” insurance following a crash, and it’s available regardless of fault. The downside of this is that it’s limited. $10,000 can seem like a lot at first blush, but the reality is it’s not much in the aftermath of a crash.

To pursue a personal injury lawsuit after a crash – before you can establish fault, before you can argue how much you should be paid – you need to show your injuries are serious enough.

The law breaks it down into four categories:

• Permanent or significant loss of an important bodily function.
• Significant and permanent disfigurement or scarring;
• Permanent injury, as determined within a reasonable degree of medical probability;
• Death.

The law doesn’t go into any further details about how courts should interpret this. What our Broward injury lawyers can say is that prior case law does provide some insight into which injuries meet the threshold and which do not.

Just as an example, a broken arm will likely meet the serious injury threshold. On the other hand, a sprained wrist most likely won’t, even if you’re in a lot of pain. The difference is that most broken bones will impair an important bodily function (i.e., writing, carrying, lifting, walking, etc.). It meets the first criteria, even if it’s not a permanent injury.

Different People, Same Injury, Different Serious Injury Thresholds

Our injury lawyers need to be careful to note there is no brightline rule about which injuries qualify. In fact, two different people could have the same injury and one might qualify while the other would not.

One example might be if an athlete sustains an injury like whiplash, the injury might not meet the “seriously impair” the athlete the same way it might a small child or elderly person – even though it’s the same injury.

This is why it’s important for an experienced Broward injury lawyer to carefully examine the fact pattern in your case to make a professional judgment about whether an injury is significant enough to impair a person’s life.

A defendant can always challenge the serious injury threshold. The defense can ask the court to make a determination on whether one’s injuries truly meet that threshold. If that happens, a hearing may be set, at which time both sides can present evidence, including expert witnesses who can testify as to the seriousness of your injuries and how it impacts your life.

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

Additional Resources:

F.S. 627.737, Serious Injury Threshold Statute

The reality is that school bus accidents – especially fatal ones – aren’t all that common. The National Highway Traffic Safety Administration (NHTSA) reports that between 20004 and 2013, there were 1,214 school-transportation related fatal crashes. Approximately 134 people die in school vehicle-related crashes and about 8 percent of those are actually on the bus. About one-fifth are pedestrians and bicyclists. Most are people in other vehicles.

In the recent Florida case of Davis v. Baez, plaintiff was a student pedestrian who was injured when she was struck by another vehicle while crossing a darkened, busy street early one morning to get to her bus stop. Normally, the school bus driver wouldn’t be liable in a case like this, but the driver – allegedly and against the school district’s policy – instructed students at this particular stop to cross the street and be waiting for him at the bus stop on the east side of the street when he arrived. He told them if they didn’t cross before he got there, he wouldn’t stop to pick them up. However, school policy required that the students be allowed to wait on the east side of the street until the bus arrived, at which time the driver would extend his flashing stop sign to halt traffic in both directions so students could cross safely to the stop.

Plaintiff was an 18-year-old student, a senior at Sunset Senior High in Miami-Dade. The crash occurred around 5:50 a.m., and it was still dark out. She and her brother were assigned to that stop. Her brother had just barely crossed safely and watched on as his sister was hit. Plaintiff suffered serious personal injuries as a result of the accident.

The student took legal action against both the school board and the bus driver for not instructing her and her brother to wait on the west side of the road until the bus arrived at the designated stop, halted traffic and activated the bus’s red flashing lights and “STOP” arm so the two could safely cross.

The school district and the driver asserted sovereign immunity and the trial court granted the district summary judgment.

Plaintiff appealed the dismissal of the claim against the school board, but that was affirmed.

She later appealed only the claim against the driver individually. The driver affirmed in his deposition that he had told plaintiff and her brother to be waiting on the east side of the street and that if they weren’t already there, he wouldn’t wait for them to cross so he could pick them up. Further, the bus route manager for the district testified that not only were children allowed to wait on the west side of the street, but that it was proper procedure for them to do so.

F.S. 768.28(9)(a) extends sovereign immunity protection to employees of a government agency so long as the worker was acting in the course and scope of his or her employment or function, unless the act was in bad faith or malicious or exhibited wanton and willful disregard for human safety.

In this case, according to the Third District Court of Appeals, there was a genuine dispute of fact as to whether, by voluntarily requiring the students to cross the street before the bus arrived, he created a foreseeable zone of risk and thus owed a duty to plaintiff and was not shielded by sovereign immunity laws. The case was remanded to the trial court for further proceedings.

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

Additional Resources:

Davis v. Baez, Nov. 9, 2016, Florida’s Third District Court of Appeal

More Blog Entries:

Florida Medical Malpractice Damage Caps Again Struck Down on Appeal, Nov. 25, 2016, Fort Lauderdale Injury Attorney Blog

The Florida Highway Patrol reports the Land O’Lakes man had a nasty exchange with the bikers in the moments before the incident. One of the victims, a 46-year-old Navy veteran, said he feared for his life and the life of his female passenger.

“You don’t know what’s going through his mind,” the victim told 10 News. “Is he going to put the car in reverse? Is he going to turn around? Is he going to stop and pull out a gun?”more

Thankfully, neither motorcyclist was seriously hurt. But plenty of road rage victims in Florida aren’t so lucky. The Washington Post reported last year that fatal road rage incidents have risen ten-fold since 2004. Meanwhile, the NHTSA reports that 66 percent of traffic fatalities are caused by aggressive driving. The AAA Foundation for Traffic Safety reports 8 out 10 drivers surveyed ranked aggressive driving as a “serious” or “extremely serious” risk that threatens their safety. And yet, half of those same drivers surveyed conceded that they exceed neighborhood and highway speed limits and more than a quarter consider speeding (an aggressive driving behavior) acceptable. An estimated 26,000 traffic deaths annually are reportedly the result of road rage and driving.

But the question of whether the act was intentional may be central to the issue of insurance compensation. That’s because while assault and battery are generally causes of action in a civil lawsuit, they are not often covered by insurance. Insurers generally do not cover intentional acts of violence. Every policy is different, of course. If a driver hits and kills another motorist while driving aggressively, that may be payable under the policy. However, a driver who stops the car, gets out and shoots the other driver – those injuries probably won’t be covered.

That doesn’t mean the victim has no recourse. If the act was deemed intentional and the auto insurance company refuses coverage, victims might first of all consider legal action directly against the culprit. Your damages could be paid out of the offender’s pocket. The same could be done if the criminal court orders restitution be paid, though bear in mind, that is not the primary purpose of the criminal court or the goal of prosecutors.

Unfortunately, though, a defendant’s assets or resources may be limited. That could mean that even if you win your case, collecting those damages could be tough.

You may want to consider pursuing compensation from the Florida Crime Victim Compensation fund. Qualified applicants are those who incurred a personal injury or survivors of someone killed as a result of a felony or misdemeanor crime punishable under state or federal laws. Those include those who suffered injury as a result of a DUI and hit-and-run. In order to be eligible, victims must:

• Cooperate fully with law enforcement and prosecutors;
• Suffered a physical, psychiatric or psychological injury or deaths as a result of the crime;
• Report the crime within three days of it occurring (unless there is a justifiable reason for a delay);
• File a claim within one year, or two years maximum (exceptions for minor children);
• Not have contributed to the circumstances of the crime;
• Have been engaged in no unlawful activity at the time of the crime;
• Not be a habitual felony offender, violent offender or adjudicated guilty of a prior forcible felony offense.

Your Florida injury lawyer can help you best determine the smartest route of compensation for your situation.

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

Additional Resources:

Habitual traffic offender in Pasco jail after running over motorcyclists, June 1, 2016, WFLA, NBC-8

More Blog Entries:

Report: Bus Company Flouts Its Own Driver Fatigue Safety Rules, June 2, 2016, Florida Injury Lawyer Blog

The case, according to a recently-filed lawsuit, is long-term consumption of energy drinks. He reportedly drank four every single day, which is the caffeine equivalent of 12 Coca-Colas. He did this for 10 years. Now, he’s awaiting a liver transplant.

His case is one of five filed against Monster Beverage Corp., asserting claims of severe and almost deadly health problems resulting from longtime use of the drink. It’s alleged that habitual drinkers of the products suffer renal failure, stroke and heart attacks, among other health concerns.

Plaintiffs alleged the beverage company is negligent, that these drinks are defectively designed and that consumers weren’t adequately warn about the known risks of the drinks. Attorneys representing the consumers in these personal injury lawsuits say the drinks are “as bad for young people as cigarettes.”

Further, they allege there is a lack of transparency between the company and consumer. The company is aware of the danger, attorneys say. In fact, this isn’t even the first time the company has been sued for these type of claims. Yet, they have not changed their formula, practices or labels.

Last year, the company settled out-of-court two wrongful death lawsuits brought by family members of two men who died after allegedly consuming the drinks. One was 19 and drank two cans of the caffeine bomb every day for three years. He died of a heart arrhythmia and cardiomyopathy. His parents later alleged the company didn’t warn their son about the risks.

In another case, the widow of a man who died after consuming Monster Energy drink every day for two weeks before he died indicated he had 240 milligrams of caffeine in his system when he died.

There was also the case of a 14-year-old girl who reportedly died of caffeine toxicity. Although she had a heart condition, she reportedly suffered a heart attack after downing two of the 24-oz cans in a single day. An autopsy indicated the caffeine in her body blocked her heart’s ability to pump blood.

The details of those settlements haven’t been made public.

The company has countered that its products are safe and that these health ailments and deaths are coincidental. A Starbucks medium coffee has more caffeine than their products, a spokesperson insists. The representative called this new flurry of cases a “cottage industry” for injury lawyers.

Those filing the case have scoffed at that, saying the company settled these cases out-of-court, required plaintiffs to sign a confidentiality agreement and never released their total formula.

The U.S. Food & Drug Administration (FDA) has looked into this issue before, following consumer claims against both Monster and 5-Hour Energy.

Court papers in some of these recent cases indicate caffeine could potentially be fatal if the dose is between 200 to 400 milligrams. The lawsuits allege a single, 16-ounce can of the drink contains 160 milligrams of caffeine.

The product is classified as a “dietary supplement” rather than a “food,” which is what has allowed it to sidestep the caffeine limitations imposed on other beverages.

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

Additional Resources:

Monster Energy Drink Almost Killed Us, Lawsuits Claim, Feb. 11, 2016, By Kate Briquelet, The Daily Beast

More Blog Entries:

Researchers: Economic Improvement Tied to Uptick in Traffic Deaths, Feb. 10, 2016, Fort Lauderdale Injury 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

More Blog Entries:

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