These cases are not unheard of, and in fact, are quite common. (If you think about it, as a passenger, with whom are you most likely to be riding? Not a stranger, but probably someone who is or once was close to you.) In a recent motorcycle accident case in New Jersey, the ex-girlfriend of a state assemblyman filed a lawsuit against him, alleging his negligence in exceeding the speed limit resulted in his losing control of the motorcycle when the pair approached stopped traffic ahead. Defendant told the local Daily Journal newspaper that allegation was untrue because there had been no citation issued. (This is not exactly true, however, because an investigating officer’s decision to cite or not for a traffic violation is not the final word on whether someone was negligent in a personal injury lawsuit; that call is made by the court.) Cases involving exes may be a bit more adversarial than others, but nonetheless generally do not involve plaintiff seeking direct compensation from defendant.

The reason defendants are named is because plaintiffs can’t directly sue insurers. They must file a claim for damages against the person who is actually negligent, and then obtain compensation from the entity required to indemnify/ cover those losses on behalf of the defendant.

Florida motorcycle crash cases are a bit unique for the fact that unlike operators of passenger cars, motorcyclists are not required under Florida’s no-fault auto insurance law to purchase personal injury protection (PIP) benefits (though it is strongly recommended). This would typically provide up to $10,000 in coverage for medical bills and wage loss, after which one who meets the serious injury threshold required to step outside the no-fault system could then seek bodily injury liability coverage from defendant’s insurer. PIP usually extends not just to the insured, but any resident relatives (related by blood or marriage), passengers at the time of the crash and non-occupants, such as bicyclists and pedestrians. However, motorcycle operators, even those who have PIP benefits on another owned vehicle, are specifically excluded from PIP coverage bylaw.

Passengers though may have still several options for obtaining compensation for serious injuries. Fort Lauderdale motorcycle accident lawyers know each case will be different, but in general, such compensation may include:

Your own health insurance. This should cover reasonable, necessary medical expenses you incur as a result of the crash.

• Passenger’s own PIP coverage or MedPay. If you personally have a PIP policy or MedPay coverage or are covered by one under your resident relative’s policy, you may still be able to attain PIP that way. You wouldn’t need to prove any motorist was negligent.
• Motorcyclist’s bodily injury liability / guest passenger liability coverage. This can be obtained if you can prove the motorcyclist was at-fault. Minimum rates are $20,000 per individual and up to $40,000 per crash (though one can and really should purchase higher limits).
• Other driver’s bodily injury liability coverage, if the other driver was at-fault. (You can also pursue claims against both the motorcyclist and the other driver, if there is evidence more than one is to blame).
• Either driver’s umbrella insurance coverage, if available.
• Claims against the manufacturer/ distributor or repair shop of motorcycle, if evidence the motorcycle was defective or flawed repair that contributed to the crash.
• Your own uninsured/ underinsured (UM/UIM) coverage, which extends coverage in the event you are injured as a result of negligence by a driver/ motorcyclist who fled the scene (hit-and-run), was not insured or lacked adequate insurance to cover your injuries.

Finally, you shouldn’t worry too much either about whether a successful claim of negligence will increase the rider’s insurance premium. Keep in mind though, if the person operating a motorcycle was partly or wholly responsible for the crash, his or her insurance rates are going to spike whether you pursue a claim or not.

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

Additional Resources:

Florida Motorcycle Handbook, 2013, HSMV

More Blog Entries:

$19M Award For Railroad Car Accident Death Affirmed, June 29, 2018, Broward Motorcycle Accident Attorney Blog

The claim has to be properly stated, served and filed. All the elements have to be there – on time – or else you risk forfeiting your right to assert damages, perhaps forever.

This was the unfortunate outcome for plaintiff in Sorenson v. Batchfelder, recently before the Wisconsin Supreme Court. Although this is an out-of-state case, the same general principles apply.

According to court records, plaintiff suffered personal injury and property damage as a result of a traffic accident allegedly caused by a state employee.

The state worker was operating a state vehicle and was on-the-job as part of his duties with the Department of Administration. The state worker had been rear-ended by another vehicle, causing him to rear-end plaintiff’s vehicle.

While the driver of that first vehicle certainly could be held to account for those actions, the state worker in this situation could also be held liable for following plaintiff to closely.

In seeking to file her personal injury lawsuit, she served the notice of claim on the attorney general by personal service at the AG’s main office in the state capitol.

Personal service was accepted by the state employee who acknowledged its receipt and it was then forwarded to the attorney general’s personal office at a different location. There, it was processed, endorsed by another state worker and then returned to plaintiff’s attorney’s office.

Following this, the state’s office of risk management issued a check for just $242 for property damage, indicating this was not an admission of liability.

Two years later, plaintiff filed a negligence lawsuit against the state worker, who responded with a motion to dismiss for improper service of notice of claim. He argued plaintiff had not satisfied the state law requirement mandating plaintiff’s to provide service by certified mail. Because she instead use personal service, she didn’t comply with the statute, he alleged.

The trial court disagreed with defendant and denied his motion to dismiss because the attorney general had received the notice of claim. The court ruled this was all that was required.

On appeal, however, the appellate court reversed. The appeals court noted the statute clearly says service must be accomplished by certified mail and that by personally serving the notice, she failed to strictly comply with the statute. Because the statute of limitations had already run on the claim, she no longer had time to proper serve the claim and refile the lawsuit.

Plaintiff’s only recourse at that point was to appeal to the Wisconsin Supreme Court, which granted review.

The state high court affirmed, holding that the language of the statute had a clear, plain meaning. That means it is unambiguous and easy to understand.

Plaintiff didn’t dispute the language or meaning of the statute. She did argue, however, that her actions fulfilled the intention of the statute by providing actual notice to the attorney general’s office. Further, she argued that to regard her personal service as not in compliance with the statute would have an absurd result – i.e., the dismissal of her otherwise viable claim.

However, the Wisconsin Supreme Court ruled that strict compliance with the literal adherence to the words was necessary in this case, and affirmed the appellate court’s decision to grant defendant’s motion to dismiss.

An experienced injury lawyer can help ensure that you don’t fall into these kinds of procedural traps. Only partial compliance with procedural statutes in injury cases is often not good enough.

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

Additional Resources:

Sorenson v. Batchfelder, May 12, 2016, Wisconsin Supreme Court

More Blog Entries:

Florida Construction Accident Investigated, April 25, 2016, Fort Lauderdale Injury Attorney Blog

We know those drivers may be held liable if they are distracted and cause a crash. However, an emerging legal trend involves holding accountable those with whom the driver is communicating.

Take for example the recent case Gallatin v. Gargiulo, In that case, a Pennsylvania trial court judge decided that two men who were texting with a driver before and during a fatal car accident could be held liable for resulting wrongful death claims.

That case follows a precedent set in a New Jersey case from 2013 in which an appellate court ruled that a 17-year-old girl could potentially be held liable for car accident injuries that resulted when the 18-year-old boy with whom she was texting crashed. The teen driver crashed into a motorcycle in the midst of their exchanges on evening in 2009. In that decision, the court ruled that a person sending text messages has a duty not to do so with someone they know or have special reason to know the recipient is going to view that text while driving. Ultimately in that case, the court ruled there was not enough evidence to prove the 17-year-old had special reason to know the boy with whom she was texting was driving, and there was also no proof that she actively encouraged the boy to text her while driving.

Proving all of these elements in a distracted driving accident case could be difficult, but not impossible. Perhaps the greater benefit to the public is that the possibility of civil liability could drive down the number of texting-while-driving accidents.

In general, police have a tough time ascertaining whether distraction was an issue in an accident. We know it accounts for at least 424,000 injuries and 3,500 deaths every year – but we also know that’s a low number. Part of the reason we don’t have an accurate accounting is because it’s tougher to determine whether a driver was distracted as opposed to whether they were drunk. Police can’t test for distraction the same way they can alcohol or drug impairment (and drivers don’t often admit it).

Lawmakers in New York are proposing the implementation of a devices dubbed “textalyzers.” These are machines that would be carried by police and could be hooked up to a smartphone following an accident to determine whether the phone was used in a way contrary to state law at the time of an accident. The proposed law would require drivers to hand over their phone for analysis following a crash or else risk suspension of their driver’s license.

Some legal analysts are raising privacy concerns about the bill, so it’s future is uncertain.

There is also question as to whether app or phone developers could be accountable. Take for example the recent Georgia lawsuit in which social media platform Snapchat is accused of encouraging drivers to speed, take pictures and share those images. It has been compared to gun manufacturer liability; Congress has immunized manufacturers from liability for most firearm deaths, unless there was an actual defect with the weapon.

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

Additional Resources:

Texting a Person While They’re Driving Could Land You in Jail, May 3, 2016, By Jennings Brown, Vocativ

More Blog Entries:

Trotter v. Harleysville Ins. – “Per Vehicle” and “Per Accident” Insurance Claims, May 15, 2015, Fort Lauderdale Car Accident Attorney

Of course, this has the potential to cause injuries.

Still, that won’t prevent the at-fault driver from asserting the low-impact defense if they can help it. They will try to introduce as evidence pictures of the minimal amount of damage to the vehicle. They may also introduce witness testimony to illustrate the crash occurred in stop-and-go traffic or while vehicles were not traveling fast. They may also highlight the fact that plaintiff refused medical attention immediately after the crash, insinuating that plaintiff may be exaggerating the extent of his or her injuries.

The case of Rish v. Simao, recently heard by the Nevada Supreme Court, involved a low-impact car accident lawsuit.

According to court records, plaintiff was moving along in stop-and-go traffic when he was struck from behind by defendant’s vehicle. The damage to both vehicles was not extensive. And although emergency medical services technicians were called to the scene, plaintiff refused any medical treatment or transportation to a local hospital.

However, a few days after the crash, plaintiff went to a local health care provider to report he was in near constant pain. He was having massive headaches and his neck ached. He sought a series of medical treatments to address these problems, which doctors opined were caused by the earlier crash.

After plaintiff filed a lawsuit against defendant to recover damages for his injuries, defendant sought to present evidence that plaintiff’s injuries were not as serious as he alleged because the force of impact was so minor.

However, an earlier case in Nevada, Hallmark v. Eldridge, resulted in a finding from the Nevada Supreme Court that an expert biomechanical engineer must have sufficient foundation in order to testify as to certain conclusions (i.e., extent of damages and injuries). Defendant in this case did not retain any biomechanical engineer. On this basis, plaintiff sought an order from trial court that would prohibit defense introduction of any evidence that would tend to show the crash happened at low speeds/ had a minimal impact. Plaintiff argued that because defendant did not have a qualified biomechanical engineer to attest to conclusions that would be made about a low-impact crash, all such evidence should be blocked.

Trial court agreed.

Throughout trial, defense continued to slip in evidence that indicated the low speed/ minimal impact. Trial judge sustained several objections by plaintiff. Finally, by the eighth such violation of that pre-trial order, trial court imposed a sanction on the defense in the form of a summary judgment in favor of plaintiff.

Before the issue of damages could be addressed, defense appealed that summary judgment.

The Nevada Supreme Court reversed. In its decision, the court clarified that there was no requirement that defendants in such cases hire an expert biomechanical engineer for these cases. Rather, if they did present the testimony of such a professional, that individual had to be sufficiently qualified.

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

Additional Resources:

Rish v. Simao, March 17, 2016, Nevada Supreme Court

More Blog Entries:

Report: U.S. Drivers are Distracted More Than Half the Time, March 20, 2016, Fort Lauderdale Accident Lawyer Blog